Trenerry, Hedge & Suncorp

[1996] QSC 77

IN THE SUPREME COURT
OF QUEENSLAND

Brisbane  Writ No.2249 of 1987

Before the Hon. Mr Justice Shepherdson

[Trenerry, Hedge & Suncorp]

BETWEEN:
  HELEN TRENERRY by her next friend
  ELIZABETH MARY TRENERRY
  Plaintiff
AND:
  NEIL JOHN HEDGE
  First Defendant
AND:
  IAN BRUCE HEDGE
  Second Defendant
AND:
  SUNCORP INSURANCE & FINANCE
  Defendant by Election

JUDGMENT - SHEPHERDSON J.
Judgment delivered 14/05/1996

CATCHWORDS: NEGLIGENCE - PERSONAL INJURIES - single vehicle accident - plaintiff suffered head injury - pre-traumatic amnesia.  Whether plaintiff or defendant was driver.  Plaintiff 17 year old female at date of accident 25/10/82.

DAMAGES - brain damage.  Since married and born two children.  Substantial communication problem.  Some lack of insight.  Disinhibited conduct.  Damages assessed at $2,120,343-55 excluding Public Trustees fee.  Protection order made.

Counsel:Hampson Q.C. with him Morton for plaintiff

Williams Q.C. with him Myers for defendant by election.

Solicitors:Peter Shannan & Associates

MacGillivrays, town agents for Clewett, Corser & Drummond

Hearing date: 21 February 1996 - 1 March 1996

IN THE SUPREME COURT
OF QUEENSLAND

Brisbane  Writ No.2249 of 1987

Before the Hon. Mr Justice Shepherdson

[Trenerry, Hedge & Suncorp]

BETWEEN:
  HELEN TRENERRY by her next friend
  ELIZABETH MARY TRENERRY
  Plaintiff
AND:
  NEIL JOHN HEDGE
  First Defendant
AND:
  IAN BRUCE HEDGE
  Second Defendant
AND:
  SUNCORP INSURANCE & FINANCE
  Defendant by Election

JUDGMENT - SHEPHERDSON J.

Judgment Delivered 14 May 1996

In this action the plaintiff has claimed damages for personal injuries caused when a Holden utility motor vehicle registration 373-NRT collided with a tree on the western side of Blaxland South Road, Dalby at about 10 p.m. on 25 October 1982.  So much is admitted on the pleadings.
          The plaintiff alleges that she was a passenger in the utility and that the first defendant Neil John Hedge was driving the utility at the time of the collision - the defendant by election alleges the plaintiff was driving at the material time.
          That the collision was caused by the negligence of the driver is not in dispute.
          Further, the defendant by election has alleged in the alternative that if the first defendant was the driver, his capacity to control the vehicle was impaired by his consumption of alcoholic liquor and that the plaintiff knew or ought to have known of such impaired capacity and in consequence, the defendant by election has pleaded against the plaintiff volenti non fit injuria and contributory negligence as well as no duty of care or reduced duty of care.
          A further defence pleaded is that, if the plaintiff is found to have been the passenger in the utility, she was guilty of contributory negligence in failing to wear the seat belt for that seat or in failing to have it properly adjusted and securely fastened.
The pleadings raise one other matter on the issue of liability. That matter arises from the fact that the plaintiff was born on 24 December, 1964 and was therefore just two months short of her 18th birthday on the date of the accident and the further fact that the writ of summons in this action was issued on 12 June 1987. The defendant by election has pleaded the Statute of Limitations and the plaintiff has replied that between the date when her cause of action accrued and 13 June 1984 she was under a disability within the meaning of that term in s.29 of the Limitation of Actions Act 1974 and is accordingly entitled to maintain the action. Particulars given include the plaintiff's infancy as at 25 October 1982 and "unsoundness of mind".
          Of all the above issues the one most hotly contested was "who was the driver?".
LIABILITY - WHO WAS THE DRIVER?
          There is no doubt that the plaintiff suffered very severe head injuries in the collision.  Following the collision she was taken first to Dalby Hospital.  She was not admitted as an in-patient there but was taken to Toowoomba General Hospital and from there referred to Princess Alexandra Hospital in Brisbane to which latter hospital she was admitted on 26 October 1982.  The plaintiff was, as I so find, unconscious from the time of the collision until towards mid- January 1983.
          I find also that this was a long period of unconsciousness.  I find also that because of this  long period of unconsciousness which was due to her head injuries, it is most unlikely that the plaintiff would be able to actually recall an event which occurred minutes before the collision of 25 October 1982 although there is a possibility that she could do so.
          How far pre-traumatic amnesia extends back from the moment of the trauma cannot be stated with any certainty.  As Dr Saines the neurologist said in evidence (in a passage which I accept) - "the period of pre-traumatic amnesia may not have an acute onset; it may be preceded by a period of vagueness with patchiness" (p.144).
          I find that in the present case it is not possible to state the commencement time of the period of pre-traumatic amnesia in the plaintiff.
          These findings are of some importance when I consider the plaintiff's evidence as to events preceding the collision, particularly her evidence as to the events on the night of  25 October 1982.
          On that night, the plaintiff did, as I so find, drive the Holden utility 373-NRT to the home of Barry John Andrew Blumke in Blaxland Road, Dalby.  I find that at that time the plaintiff was living with the first defendant as if she and he were wife and husband and that they resided at the home of the first defendant's parents at Dalby.  I find that the plaintiff drove the utility to Blumke's house "to pick Neil up".   These several findings which I have just made do not depend entirely on the evidence of the plaintiff. 
          I cannot say on the evidence at what time the plaintiff arrived at Blumke's house.  On 25 October 1982 the first defendant did not hold a licence to drive a motor vehicle; he had been disqualified from driving a motor vehicle as a result of a conviction in the Magistrates Court at Dalby on 9 August 1982.  This conviction was in respect of his driving a motor vehicle while having a blood alcohol content above the prescribed limit.  On 8 January 1982 he had had a similar conviction but the disqualification from 9 August 1982 was for nine months.

I am satisfied that the plaintiff has no real memory of driving the Holden utility to Blumke's house and that her purpose was to pick Neil up.  I am satisfied though that the plaintiff has real recall of the first defendant's above convictions and disqualifications.
          The plaintiff gave evidence of events which she said occurred after she went into Blumke's house and after she and the first defendant left Blumke's house when, according to her, the first defendant drove the utility away from Blumke's house with her seated in the passenger seat.  She spoke of having left the keys in the utility's ignition when she first arrived at Blumke's and of her having, when she and the first defendant were about to leave, initially got into the passenger seat and then alighted, telling the first defendant that she wasn't driving with him.  The Plaintiff went on to say that she said to the defendant that he would be silly driving, that the first defendant said he would be careful and wouldn't do anything silly and that she got into the passenger side seat and found the seat belt wasn't "hooked up to the chair of the passenger seat".
          The plaintiff's evidence continued with a description of the first defendant driving the utility out of the driveway of Blumke's property, of the first defendant doing a marley i.e. "planting your foot on the accelerator and causing the rear wheels to spin" and then driving towards Dalby along Blaxland Road.  According to the plaintiff's evidence, the first defendant then did a U-turn in the utility and she next remembered waking up in hospital with the first defendant sitting by her bed.
          I should at this stage say that Blaxland South Road forms a T-junction with Blaxland Road and that Blaxland South Road was a gravel road whereas Blaxland Road had a bitumen surface.  Several photographs of Blaxland South Road appear among Exhibits 1 to 8.
          I am not satisfied that the conversations with the first defendant as described by the plaintiff did in fact occur.  In making this finding I have taken into account that there is a possibility that the plaintiff could actually recall those pre-accident conversations.  I find that the plaintiff genuinely believes that these conversations occurred but that she has, quite understandably and quite innocently and with no intent to mislead this court filled in or attempted to fill in what was a gap in her memory of events preceding the accident.
          This accident occurred many years ago - the evidence before me shows that the plaintiff has been seen by a number of doctors some of whom have asked her what she recalled of the accident and that she has replied by giving versions which are what she had been told by others had happened or what she has imagined had happened.
          As to the events at Blumke's residence preceding the accident, the evidence of Blumke himself, although showing poor recall, has assisted me. 
          On 25 October 1982 Blumke, according to his evidence, lived in Blaxland Road with his wife and daughter.  He and the first defendant were members of a gang employed by Dalby Town Council and Blumke was the first defendant's superior.   Blumke told me that on 25 October 1982 he had driven home from work accompanied by the first defendant who was to work on his, Blumke's motorbike.  He said that he and the first defendant then went to the first defendant's place to get some tools and that they returned to Blumke's house where the first defendant worked on Blumke's motorbike.
          He recalled a girl arriving in the first defendant's utility to pick the first defendant up, that she came into the kitchen and that she had a drink of something.  Blumke did not know how long this girl was at his home nor did he know how long the first defendant was at his home.  He had no recollection of any conversation at his home or what he was doing (save for some evidence about drinking beer).  He believed the first defendant and the girl left his house together and that he remained in the kitchen.  He said his wife was probably in bed.
          Blumke had poor recall and this may well be due to the long time which has elapsed since 25 October 1982.  He also, as I so find, had almost certainly drunk at least two 26 ounce bottles of Fourex full strength beer.  I thought he was doing his best to recall the events of that night but as I say his recall was poor.  I do accept the above set out evidence from Blumke as to events at his house preceding the time when the plaintiff and the first defendant left. 
          The first defendant's evidence included his telling me in evidence-in-chief that he had no clear recollection of the night of 25 October 1982 until after the accident when he could remember seeing a fire under the bonnet of the utility and his being still in the utility and seated in the left-hand side of the utility.  In cross-examination he resiled from this statement as to his first clear recollection, and I am satisfied and find that the first clear thing that has stayed in the first defendant's memory of the events of 25 October 1982 is of himself sitting outside of and next to the utility on its passenger side with his right leg "hurting like hell" and the plaintiff lying unconscious on the ground with her head closer to him than her feet. 
          The plaintiff, the first defendant and Blumke were the only witnesses present at Blumke's house and who gave evidence.  From all their evidence I conclude that the plaintiff and the first defendant were the only occupants of the utility when it was driven away from Blumke's house on the night of 25 October 1982.
          There is no doubt at all that the utility collided with a tree after travelling about 1 klm from Blumke's home.
          On the evidence before me Blumke was the first person on the accident scene but before I turn to his evidence on that aspect, I digress to say that the plaintiff gave evidence of oral admissions by the first defendant to her that he was driving the car at the time of the collision.
          She said the first of these admissions was made by the first defendant after she woke-up in hospital.  I infer that she was speaking of an event on or shortly after a date towards mid- January 1993.  She said (p. 22) the defendant said "do you remember who was driving?" that she could not remember what she said and that the first defendant said "I was driving".  The plaintiff went on to say that the first defendant said not to tell the police he was driving as he did not want to go to gaol.  She swore that she saw the first defendant every day after she woke-up in hospital and that after she left hospital she and he went back to live at his place.  The plaintiff told me of a couple of other occasions after she and the first defendant had returned to live at Dalby when the accident was discussed;  she said that she brought the subject up and said "Do you really think they'd put you in gaol" and he replied "Yes don't tell the police" (p. 23).
          On the first defendant's evidence before me, he recalled after the accident being seated in the left-hand side of the car.  I reject that evidence.  I find the first defendant probably suffered a head injury in the accident and I accept evidence to support this view which came from two doctors.  First there was Dr Bruce Monsour then a senior house officer at Toowoomba General Hospital who examined the first defendant when he first was admitted to the casualty department of Toowoomba General Hospital on the night 25 October 1982.  The first defendant had been transferred from the Dalby Hospital.  Dr Monsour noted (inter alia) by writing in the Hospital records that the first defendant had been involved in a motor vehicle accident "car hit tree" "K.o.ed" meaning knocked out and "can't remember accident"; he made a note "admit for head observation" (see Exhibit 65 which contains Dr Monsour's hand written notes).  The notes also show that Dr Monsour ordered various X-rays of the first defendant including X-rays of his skull  (see Exhibit 65 and p.467-8) and noted that the first defendant had broken front teeth and swelling and tenderness over the left maxilla (p. 465).
          The second doctor is Dr Dianne Fay Rowlings a surgical registrar on duty at Toowoomba General Hospital who examined the first defendant at 3 a.m. on 26 October 1982.  She read from her handwritten notes made at that time; among the injuries which she noted were "closed fracture mid-shaft right femur, fractured maxilla with broken front teeth" and she also noted "half hourly head observations" Dr Rowlings next made an entry in the first defendant's hospital records at 7.45 a.m. on 26 October 1982 when she reviewed the first defendant.  Among her notes she said "review of X-rays, query right fronto-parietal linear skull fracture".
          In her oral evidence before me, Dr Rowlings pointed to her note made at 3 a.m. that the first defendant told her he did not recall the accident and that caused her to examine or keep under observation the possibility of a head injury.  She said "in that first entry I noted a fractured maxilla with broken front teeth and it was later reviewed when I had seen his X-rays that I queried a skull fracture as well" (p. 383).
          To return now to the plaintiff's evidence as to the admissions said to have been made by the first defendant to her.  There is no doubt, and I so find, that the first defendant had every incentive to prevent the police at Dalby finding out that he was the driver of the utility if that were the case.  The plaintiff was one possible source of that information for the police once the first defendant had told her that he was with the driver.  He was disqualified from driving at the time of the accident and that disqualification then still had some six to seven months to run.  The first defendant gave evidence that at some stage after the accident he could recall police asking him if he was the driver and that he had said "no".  He told me that until the date of the motor vehicle accident he believed, and I so find, that the police were always "gunning" for him and looking for him on every occasion they could to try and pin a driving charge on him (p. 676).
          The first defendant told Mr Hampson Q.C. in cross-examination that he did not discuss the case with his father with whom he lived and who was also a business man (p. 674).  He denied discussing the accident with the plaintiff.  I thought his denials on this aspect were unconvincing.  I do not accept that the first defendant, who was then living as husband and wife with the plaintiff and did so for a period of some 14 months after she returned from hospital, never mentioned the accident to her or discussed the accident with her.
          I am satisfied that the plaintiff and the first defendant continued to live together as husband and wife in his parents' home until during or shortly before September 1984 in which month the first defendant had his 21st birthday.  Sometime not long before then the plaintiff left him and at about the time of his 21st birthday the first defendant left his parents' home and lived in another house in Dalby;  sometime in 1985 he left Dalby altogether.  At date of trial he was a self-employed truck driver living at Coombabah.
          The first defendant was I thought an unconvincing witness.  Although he admitted that after the accident, he had a very badly fractured leg and had been off work for some 6 months, he did not, he said ever discuss his injury with his father who he said never asked him how he broke his leg.  He said he never sought his father's advice about compensation and it never occurred to him to see whether he should try to get some compensation although on his case he was the passenger in the utility which had left the road and struck a tree.  He conceded that his father was a community leader in Dalby, that his father then had and still has a number of businesses including a farm and a sports shop and squash courts and that his father was on the Dalby Town Council. 
...       I thought the first defendant's denials as to his lack of discussions with his father concerning his injuries or compensation were also unconvincing.  Apart from the badly fractured right leg the first defendant had a fractured maxilla and broken front teeth.  I do not accept the first defendant's evidence that he, who was then living as husband and wife with the plaintiff, did not ever mention the accident to her or discuss the accident with her.
          After seeing and hearing the first defendant and the plaintiff, I have concluded that the plaintiff's evidence as to admissions made by the first defendant to her after her return to Dalby in mid-July 1983 concerning his being the driver of the utility have the ring of truth and were made and I find that on probably three occasions the first defendant admitted to the plaintiff that he was the driver of the utility on the night of 25 October 1982 and asked her not to tell the police as he could go to gaol.  I find two of the admissions were made when the plaintiff and the defendant resided together between mid-July 1983 and September 1984.  I find that the plaintiff is mistaken in her recall of the admissions she said were made while she was an in-patient and shortly after she first woke-up.  I find it more likely than not that these admissions were made to the plaintiff before she left hospital in mid-July 1983 and not during January 1983.
          I should add that although I am satisfied the plaintiff does have short term memory problems, these admissions made by the first defendant to her are fixed in her long term memory.  The admissions were made after the post accident amnesia had ended.

          I am satisfied that the admissions made by the first defendant to the plaintiff as to his being the driver of the utility at the time of the collision were true and I make this latter finding because, after listening to and observing the first defendant give his evidence, I have concluded that despite his having been knocked out in the accident and having suffered some head injury he has a better memory of the events leading up to the collision then he was prepared to admit in the witness-box.  I think it more likely than not that the first defendant has deliberately attempted to repress those memories out of a sense of guilt or responsibility for the grievous injuries suffered by the plaintiff who was at the time and for the best part of two years thereafter his common law wife.
          If I should be wrong in my finding that the first defendant did make admissions to the plaintiff that he was the driver of the utility at the time of the collision then, plaintiff's counsel has submitted, there is a body of evidence which, when viewed as a circumstantial case will enable me to find that the first defendant was the driver of the utility.
          The manner in which the tribunal of fact is to consider evidence in a circumstantial evidence case is stated in Chamberlain v. The Queen (No 2) (1983-84) 153 C.L.R. 521 at 535 where Gibbs C.J. and Mason J. said:-

"At the end of the trial the jury must consider all of the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another.  For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed.  Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness "separately in, so to speak, a hermetically sealed compartment"; they should consider the accumulation of the evidence:  cf Weeder v. The Queen (1980) 71 Cr. App. R. 228 at p.231

similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it.  It is well established that the jury must consider "the weight which is to be given to the united force of all the circumstances put together": per Lord Cairns, in Belhaven and Stenton Peerage (1875) (1 App. Cas. 278 at p.279, cited in Reg. v. Van Beelen (1973) 4 SASR 353 at p. 373".

Although the above comments appear in a criminal case they are equally relevant to a judge sitting as a tribunal of fact in a civil case.
          The explanation of Chamberlain in Shepherd v. The Queen (1990) 170 C.L.R. 573 does not cast doubt on the above passage. The onus of proof in a civil case is less burdensome than in a criminal case.
          I will return to the evidence of Blumke who, on the evidence which was presented before me, was the first outside person on the scene after the collision. 
          I find that very soon after the utility had been driven out of Blumke's yard, Blumke heard the noise of a crash and this was the noise of the utility striking the tree about 1 klm from Blumke's house and just to the west of Blaxland South Road.
          I am not satisfied that Blumke was outside his house when he heard this noise.  I think it more likely than not that he was in the kitchen.
          I find Blumke went outside his house and got into his car which he kept beside the house and that he then drove his car in the direction of the crash noise and found the utility registered 373-NRT against a tree on the western side of Blaxland South Road.  The position of the utility against the tree is shown in some of the photographs taken by the police between about 7 a.m. and 8 a.m. on 26 October 1982 (see Exhibits 1, 2, 4, 5, 6 and 7).
          I am satisfied that when Blumke arrived at the crashed vehicle he saw the passenger side door was open and the plaintiff was lying beside this open door.  I find that Blumke saw the first defendant sitting-up beside the passengers side of the utility but further to the rear of the utility than the passenger door.  I find that Blumke observed the plaintiff to be unconscious and that he spoke to the first defendant who was conscious.  I find it was dark at the accident scene and I infer that Blumke's description of what he saw was based on his using his car's headlights to light the crash scene.
          I cannot find with any real accuracy the period of time which elapsed between Blumke's hearing the noise of a crash and his arrival at the accident scene but, given that he had to walk to his car, perhaps search for his keys, start the car and drive it for a distance of only about 1 klm until he reached the accident scene I find that probably he arrived some four or five minutes after the collision had occurred.
          Blumke said he thought he saw a flame when he heard the noise of the crash and looked out.  I find that when he reached the utility he saw no sign of any burning.  I find he did not see any flame.
          To complete the picture following Blumke's arrival at the accident scene, I find that Blumke picked up the plaintiff and placed her in the rear seat of his car and then picked up the first defendant and got him into the front seat of the car.  I find Blumke then drove towards the Dalby Hospital and that en route he stopped at a house at the corner of Blaxland Road and Winton Street, Dalby.  This house was occupied by Mrs Gloria Fay Hamilton and her husband.  I find that when he reached the Hamilton's house Blumke wanted an ambulance to come out from Dalby and meet his car.  He stopped at the Hamilton house in expectation of being able to telephone from there for an ambulance.  By good fortune Mrs Hamilton was a registered nurse then working with the Blue Nursing Service and she was at home.  She offered to help Blumke.  She looked at the plaintiff and observed that her body movements were such that the plaintiff appeared to have some brain damage.  Mrs Hamilton was concerned about the plaintiff's breathing.  She advised not waiting for the ambulance but instead going straight to the hospital.  Mrs Hamilton travelled in Blumke's car to the Dalby Hospital, sitting in the back seat giving the plaintiff what help she could en route to the hospital. 
          The next person on the accident scene was Elizabeth Mary Trenerry the plaintiff's mother. She said that at about 9.30 pm on 25 October 1982 she and her husband received a call as a result of which they dressed and went to the Dalby Hospital.  There they were told that the plaintiff was being moved on to the Toowoomba Hospital.  They returned to their home at 8 Nicholson Street, Dalby and there packed a bag and then travelled to Toowoomba.  I mention there was some slight discrepancy between their evidence as to the time they received the call i.e. 9.30 and the time of the collision admitted on the pleadings - about 10 pm - but in my view this does not have any bearing on the accuracy  of Mrs Trenerry's evidence.
          While travelling from  Dalby to Toowoomba Mr and Mrs Trenerry drove to Blaxland Road South, having been told that it was beside this road that the accident had happened.  At the Dalby Hospital Mrs Trenerry had tried unsuccessfully to find the plaintiff's purse.  On arriving at the accident scene she looked for the plaintiff's purse.  She saw the utility smashed into a tree with the passenger side door open.  Mr Trenerry had driven his car to a position where he could and did shine the headlights of his car onto the damaged utility.  Mrs Trenerry, aided by the light from her husband's car, looked into the utility through the open passenger door and saw the plaintiff's purse or handbag as she once called it.  She said (p.559):-

"I went up to the utility put me hand in and got the handbag"

The following evidence appeared

Q.The handbag was where?

A.Just inside the door in that wall near the door.

Q.There is a wall under the door is that what you mean?

A.Yeah you know where you put your feet.

Q.Yes.

A.And then it comes around - it was just sitting there just in the corner.

Q.In the corner?

A.Yeah it would have - goes there.

Q.Do you mean the corner with the seat or the corner with the dashboard sort of part?

A.Yeah dashboard underneath there you know how it goes around there it was sitting in there.

Q.You recognised her purse and took it out is that what you are saying?

A.Yes.

Q.Did you see anything else that you recognised?

A.Her thongs were there.

Q.Where about were they?

A.Just near the purse.

Q.You say they were her thongs?

A.Yeah.

Q.How did you recognise that they were her thongs?

A.They were the ones she always wore.   They were white thongs.

Q.Was there anything about the size or anything about them?

A.She has a tiny foot that's - yeah it was her's.

Q.The tiny feet you are sure they were her's you say?

A.Mmm.

Mrs  Trenerry went on to say she also saw the first defendant's thongs "on the other side"  She described having seen him in thongs on a prior occasion.   She said "I don't know, for some reason people always seem to take their shoes off before they come into the house"; she said she was speaking about her house; she was asked "He had a habit of leaving his thongs outside your front door? and she answered "Yes back door".

Q.Outside or inside?

A.Just outside the back door.

Q.He would step out of them and come in bare foot?

A.Yeah.

She went on to say that she recognised these thongs as the first defendant's and spoke of their being on the driver's side.
         In cross-examination Mrs Trenerry was not shaken as to where she said she saw the plaintiff's purse and the plaintiff's thongs - she insisted the thongs were "just next to" the purse when she bent over (p.637/43).
          I thought Mrs Trenerry an honest and reliable witness when telling me of her finding the purse and seeing the two pairs of thongs in the car;  where these items were and to whom they belonged.
          As a result of her evidence I find that the plaintiff's purse was in the passenger side compartment just inside of and to the left of the passenger's door opening as one looks at the utility from the passenger's side.  I find the purse was not as far forward as the firewall under the dashboard - it was in the corner formed by the sidewall and the firewall.  I also find the plaintiff's white thongs were next to the purse and that those thongs were closer to the passenger side seat than to the firewall in front of that seat.  I find that the first defendant's thongs were on the floor of the driver's side compartment.
          On the evidence before me, the next person on the accident scene was Senior Constable Bradley Aaron Allen, a police officer who has been stationed at Dalby since 16 December 1980.  I find he arrived at the accident scene at about 2 am on 26 October 1982 and found no-one there.  I accept that he was not told of the accident until shortly before 2 am.   He said it was dark at the time and that when he arrived at the scene he observed a Holden utility that had crashed head‑on into a tree, that it was still in a position of being up against the tree and when he arrived the passenger's side door was open.  He said he inspected the scene. 
          At about 7 am on the same day Senior Constable Allen returned to the accident scene with the scenes of crime officer who was a qualified photographer.  The photographer took a number of photographs - eight of them are before me (Exhibits 1 to 8).
          A number of these photographs show marks on the gravel surfaced Blaxland South Road.  Senior Constable Allen identified these marks as "fishtailing skid marks" which he said went right up to the vehicle where it was up against the tree.  I mention in passing that Senior Constable Allen gave evidence that the distance from the corner of Blaxland Road along Blaxland South Road to the position where the utility hit the tree was about 900 metres.  I accept that evidence.  I mention that this utility was powered by a V8 engine - I find this was a powerful motor. 
          Senior Constable Allen described the fishtailing marks as indicating a controlled fishtail and not marks made by a vehicle out of control.  Despite Mr Williams cross-examination of Senior Constable Allen, he maintained his view that the utility was not out of control when making the fishtailing marks.  He maintained that the utility was going backwards and forwards across the road in a controlled manner for 900 metres and did not agree with Mr Williams' suggestion of "a driver who was attempting to accelerate down the road has lost control of the vehicle and its gone off the road and overcorrects" (p. 352).
          I accept Senior Constable Allen's evidence and I do so more readily because he himself had actually done what he called "fishtailing".   I read the following portions of his evidence (p. 333-50)

Q.Seeing that you have done it yourself Constable, could you tell us how much strength is required to do it in a Holden utility such as that vehicle?

A.In a vehicle without power steering  there is an amount of strength required, certainly, to manoeuvre the steering-wheel.  Mostly though it is skill involved in knowing how far to go and how much acceleration to use before you correct and overcorrect and then to get it to fishtail the otherway.

Q.How much acceleration does have to be used?   Is it full acceleration or part?

A.Far more than what you would normally use to drive on the road at a normal speed, excessive acceleration I would put it at, depending on the road surface.

Q.You have to be able to depress the accelerator considerably?

A.Yes.

Q.At what point?

A.At that point of turning the wheel you accelerate sharply to get the wheels to spin to get the rear of the vehicle to slide.

Q.Do you use the brake at all in these manoeuvres?

A.No.

Q.Just driving with the steering wheel and accelerator?

A.Steering-wheel and accelerator.

Q.Is any particular road surface better than another?

A.For this type of driving a loose gravel road surface would give the best results as it were to get that type of manoeuvre out of the vehicle into.

Q.What about this road here would that be satisfactory for giving the desired results?

A.That would be an excellent surface.

I should at this stage say that the photographs Exhibits 1 to 8 do not show the fishtailing marks for the whole of the distance from the junction with Blaxland Road.  Senior Constable Allen estimated there was a gap of probably half a kilometre of roadway missing in the photographs.
          I mention now that Exhibit 5 is a photograph taken by the police photographer which shows the passenger side door of the utility closed.  I am satisfied that Senior Constable Allen closed that door before the photograph was taken.  He recalls seeing thongs on the floor of the vehicle but could not say where they were.  He confirmed that there was a seat belt on the passenger side, that it was sitting on the passenger seat and that it was not connected to anywhere on the left-hand side of the utility.  He swore that the interior of the vehicle [at about 7 a.m.] appeared to be as it had been when he left it at about 2.30 am that morning (p. 347/42).   I accept all this evidence of Senior Constable Allen which I have just set out.
          I accept Senior Constable Allen's evidence that the driver's side door of the utility could not be opened and I find it was more likely than not that in the collision the driver's side door was damaged in such a way that it remained closed and could not be opened.
          Senior Constable Allen had in court his police notebook and a photocopy of his two page typed report which he had made shortly after 26 October 1982.  He had also made a plan.  A photocopy of his plan prepared on 26 October 1982 is Exhibit 35.
          The certificates of the first defendant's two convictions for drink driving came into evidence via Senior Constable Allen.  In cross-examination Senior Constable Allen had said that on all occasions when he saw the first defendant and the plaintiff in the car during any period that the first defendant was disqualified it was the plaintiff who was driving (p. 346-15).  He was then asked "and generally speaking when you saw them together Helen was the driver?".   He answered "well only when he was under disqualification" and he added "or drinking I imagine" (p. 346).  Senior Constable Allen also said that it would take "under 5 minutes" to drive from Blumke's house to Hedge's house via the Blaxland South Road and that to drive between the same termini via Blaxland Road would take "a similar time" (p. 355).  He went on to say that a driver travelling from Blumke's to Hedge's along Blaxland South Road would go onto the Warrego Highway and that the distance from the turn-off on the highway to Hedge's house (which was on the highway) would be approximately no more than 2 klms (p.356).
          Apart from evidence of Senior Constable Allen to which I have already referred and accepted,  I accept him as a witness of truth.
          Scott Edward Trenerry a younger brother of the plaintiff gave evidence that he and Graeme Charles Brook went to the accident scene on the morning on 26 October 1982.  Scott Trenerry was then 14 years old.  He said he arrived at about 8.30 am but I find that it was probably before 8 o'clock because I am satisfied the police were at or near the accident scene when Trenerry and Brook were there.  I am also satisfied he was at the scene before police took photos.  Scott Trenerry travelled in Brook's car.  Scott Trenerry described marks which he saw on the whole length of the gravel surface of Blaxland South Road from the junction of that road with Blaxland Road.   He said "As we first approached the scene, there were skid marks on the bitumen and then the skid marks led across onto the gravel and fishtailed along the gravel road up to the tree and that's where the utility was" (p. 359).   He said the passenger side door was open and he looked in and through that door.  The following appeared in his evidence-in-chief (p. 359):-

Q.Can you recall noticing anything as you looked through there?

A.Well the steering-wheel had been wedged up close to the roof of the utility.  The transmission had sort of poked up through the floor towards the driver's seat and loose seat belts on the actual passenger seat and also teeth marks by the looks of it in the steering- wheel.

Q.You crawled in and looked at the steering-wheel and the transmission did you?

A.Yeah.

Q.You are coming in through the passenger side?

A.Yeah looking across to it all.

Q.Where abouts were these marks?

A.In the bottom half of the steering-wheel.

Q.You say teeth marks but what exactly did you see how would you describe the marks?

A.Indents on the steering-wheel on the bottom half.

Q.How many of them were there?

A.Two.

Q.And how close together were they?

A.Right beside each other.

In cross-examination he qualified his earlier answer concerning crawling into the car.  He was asked "Did you actually get into the car or did you look from the passenger's side?  He answered "I leaned in". (p. 363).  He described himself as having "sort of one-hand on the roof and leant in"; he said this was on the passenger side.  He said that the driver's side - window was up and he looked in through the window; he thought the driver's side window was fully up; he agreed that his recollection was vague and said that he saw the teeth marks in the steering-wheel when looking through the window (p. 363).  He told Mr Williams Q.C. that the teeth marks were in the lowest part of the new U-shape that had been formed in the steering-wheel when the collision occurred.  He described the marks as "more of a, say, punch hitting them more than a chisel" - "like if you hit it with a hammer and a punch that sort of thing".  He said there was no piece missing but that there was an indentation which he could see clearly.

          Scott Trenerry told Mr Williams he was first asked to recall the events of 26 October 1982 some 4 to 5 years ago (366-10); he conceded in cross-examination that it wasn't until nearly 10 years after the event that he as a 24 year old was first asked to remember what had happened or what he had observed the day after the accident.  He insisted that he had a clear recollection of that; he denied Mr Williams suggestion that there were no marks in the steering-wheel; he said that the marks should still be there.  He was asked whether he noticed any marks on the dashboard of the car that is on the passenger side - towards the centre consistent with teeth marks and he answered "no".  (p. 368).
          Graeme Charles Brook gave evidence.  Since 25 October 1982 he has married Janet who is the plaintiff's older sister.  He is a plumber who has lived with his wife in Cairns for approximately the past 12 years.  He was 19 years old on 25 October 1982.  On the morning of 26 October 1982 he drove his vehicle accompanied by Scott Trenerry to the accident scene.  He drove along Blaxland Road and turned right into Blaxland South Road.  He said the first thing that he saw as he turned into Blaxland South Road "was all fishtail marks up the road"; he said these marks started from "virtually the corner" and ended where "virtually the ute stopped more or less".   He described the fishtail marks as follows:-

"It's where you get the vehicle into a bit of a motion swing the back around and just skidding - fishtailing".   (p. 568-50)

He was asked "And that's a deliberate motion and you are making your arm move like that.   What part of the vehicle is doing that sort of motion?" and he answered "Be more the back you'd think that's why - the way you fishtail I believe".  He later said "You are not going in a straight direction and you are skidding more or less from side to side under power".  During his cross-examination Mr Williams asked him "What you are calling a fishtail is the car being driven from one side of the road to the other like that in an S-shape or snake like fashion" and he answered "Yeah well that's the mark".  Question  "That's what you call a fishtail anyway, a snake like fashion down the road" and he answered "Yeah where its dug in the gravel and under power and going for it".
          Mr Brook said he had seen the fishtailing manoeuvre performed "on other stock routes around Dalby" and usually on gravel roads.  He told me that as he drove to the accident scene he saw police on the road taking photographs and that he continued on past them to the utility.  He said he looked in the passenger side of the utility and that Scott Trenerry went around to the driver's side.  He told me that when he looked in the passenger side, the main things that "stuck out" were the steering-wheel up at about the roof level (p. 570) there was "like a burn mark or smoulder marks on the console area beside the passenger side of the vehicle like there was a heat there or something where the gearbox had come through"; that he did notice big thongs on the driver's side and that they were a dark blue or a black; he said the thongs were on the floor (p. 570).  Mr Brook did not know if he saw thongs on the passenger side and could not recall anything on the floor.  He told me how the police came and asked us "what we were doing and to move along".  Brook and Scott Trenerry then left and on the way home Scott Trenerry told Brook that he had seen teeth marks in the steering-wheel.  This evidence I allowed in to rebut Mr Williams' questions during his cross-examining Scott Trenerry suggesting that Scott Trenerry's evidence concerning the teeth marks was a recent fabrication (see my rulings at transcript pp. 574-6).
          Mr Brook did not see any such marks and the inference I draw from his evidence is that if there were such marks present they were visible only on looking through the driver's side window.  He told Scott Trenerry he had not seen the marks and said to him "No I didn't get around to that side".
          Mr Williams cross-examined Mr Brook as to why he had not told the police about Scott Trenerry's having said he saw teeth marks in the steering-wheel.  Brook replied saying that the police did not approach him and that he didn't know "the thing was being investigated"; he knew  that the first defendant had lost all his top teeth in the collision of 25 October as he had seen the first defendant visiting the plaintiff in hospital in Brisbane when, as Mr Brook said, the first defendant "had no teeth".  Mr Brook left Dalby to live in North Queensland in late 1983.
          I thought Scott Trenerry and Graeme Brook were truthful witnesses and I accept their evidence which I have set out above.  More particularly I accept Scott Trenerry's evidence that he saw the indentations consistent with teeth marks in the steering-wheel when he looked through the closed driver's side window.  I should at this stage say that the actual steering-wheel was put into evidence late in the trial and after Dr Frank Grigg the defence expert had very recently visited the utility wreck and in the course of that visit removed the steering-wheel.  Although Scott Trenerry did not have the opportunity of seeing the steering-wheel while giving evidence Mr Hampson Q.C. did not seek to recall him so that the defence claim that there were no marks consistent with teeth marks visible in the steering-wheel could be put to him.
          This steering-wheel has remained in what I am satisfied is a wreck of the utility for over 13 years.  The wreck has been moved at least twice from the accident site.  For very many years it has been on the first defendant's parents' property and at one stage was moved to a different site on the property by the defendant's father using a tractor to drag it.  The windscreen  has disappeared many years ago.  The wreck has been picked over for parts.  The sun, wind and the rain have fallen on this steering-wheel.  I place no reliance on Scott Trenerry's statement during his cross-examination that the marks should still be in the steering-wheel.  I am satisfied he was unaware where the vehicle was when he gave his evidence and was unaware of the conditions in which the steering-wheel had been since the 1982 accident.
          I have already set out his description of the marks which he says he saw.  He said there was no piece missing.  He admitted there was an indentation and that the two marks side by side were in the lower part of the new U-shape in the steering-wheel that had been formed by the collision.  He identified this U-shape on a photograph in Exhibit 8.  The evidence of Dr Grigg that very recently he saw no indentations as described by Scott Trenerry and my observations of the steering-wheel showing no such indentations do not cause me to reject Scott Trenerry's evidence as to the marks in the steering-wheel which he said he saw when he looked through the driver's side window over 13 years ago.  The effects of the weather may well have caused those indentations to disappear.  Further, an examination of the steering-wheel now shows that at the lower part of the U an elliptically shaped area about 5 centimetres long and 2-3 centimetres wide is quite highly polished and has lost what appears to have been some coating; this coating appears over the surface of almost all the rest of the steering-wheel.  I find it more than likely that the teeth marks were in the coating which has now disappeared from the above elliptically shaped and polished area.
          The plaintiff's case included evidence from Kenneth Leslie King who holds a degree of Bachelor of Mechanical Engineering and an Honours degree in Science majoring  in Psychology and a Certificate in Traffic Planning and Control from the University of New South Wales.  His evidence consisted of his oral testimony and a written report (Exhibit 18).
          The defendant by election's case included oral and written evidence from Dr Frank Grigg whose C.V. is Exhibit 72.  Dr Grigg gave two written reports dated 9 October 1995 (Exhibit 71) and 28 February 1996 (Exhibit 73).  On the evidence of Mr King and Dr Grigg I find:-

1. That the impact point with the tree was angled perhaps as much as 45 degrees to the edge of Blaxland South Road.

2. That the utility approached the tree from the left-hand side of the tree.

3. That the actual point of contact on the utility was towards the right-hand side of centre of the front of the utility.

4. That there was an anti-clockwise rotation but not to a great degree.

5. That the first impact was the utility against the tree.

6. That the second impact occurred when any unrestrained person or unrestrained thing within the cabin of the utility struck part of the interior of the utility.

7. That the first and second impacts occurred within about one-hundredth of a second.

8. That the magnitude of the forces in both collisions was still very high and that the theoretical reduction in terms of injury potential between the first and second impacts was marginal and certainly not a marked reduction in the injury risk.

   Mr King did not have the actual steering-wheel when he gave his evidence.  He did have photographs of the distorted steering-wheel.  
   He was asked (p. 161/15) "What sort of force is required to accomplish such a distortion as you call it?" and he answered "I don't know the magnitude.   It is the type of force though associated with impacts.  People can under some circumstances, do it from gripping the wheel,  but after (sic) it is the body part striking the rim itself that produces the damage."  "After" is a error in the transcript - it should read "often".

Q.Are there any loose parts in a car or anything like that - I mean you are suggesting it is caused by an occupant?

A.Yes.

He was then asked "Are there any loose parts in the car that in the normal car would cause such a distortion"; before he answered,  I said "or in this vehicle" Mr Hampson said "yes I was going to come to this vehicle" and Mr King answered "There is none that I can see.  There is the possibility of the wheel moving so far forward as to strike the windscreen but I don't believe it would distort it to anywhere near the degree seen, nor to such an extent, and in all probability the windscreen would fail before the distortion anywhere near this was generated.

Q.So, on the assumption then that this movement forward and to the right of the lower half of the steering-wheel occurred during the crash, your opinion is that it was an occupant using the driving seat who caused it, or assisted to cause it I should say?

A.Yes.

In his report (Exhibit 18) Mr King had said (at p.3):-

"It is noted that Ms Trenerry  had right frontal skull fractures as well as a laceration of the lateral aspect of the right leg.  Mr Hedge had facial injuries (including broken front teeth), anterior chest wall bruising and a broken right femur."

Two of the matters debated in argument were - how did the first defendant sustain a closed comminuted fracture of the middle third of the shaft of his right femur and how did the plaintiff sustain the fracture of her sacrum and marked grazing and friction burns to the right buttock and right thigh posteriorly with virtually the full thickness of the skin destroyed (see Exhibit 29).  There is no doubt that the first defendant and the plaintiff did respectively suffer these injuries in and as a result of the accident on 25 October 1982.
          In this case there is no eyewitness who can say exactly what did happen inside the cabin of the utility immediately following the collision with the tree.  The only two occupants of the utility have no memory of those events.
          On thing is clear and that is that the steering column had the brake pedal attached to it.  The brake pedal was, when in its normal operating position, ahead of and in front of the driver's seat and a few inches above the level of the floor.  I am satisfied that during the earliest stages of the collision of the utility with the tree, the lower end of the steering column was forced rearwards and the steering column pivoted about its mounting point in the dash region of the utility resulting in the column ending up almost vertically within the vehicle and the steering-wheel projecting outwards through the windscreen region (see photograph Exhibit 8 and in Exhibit 17 photographs Nos. 10, 11, 12 and 14).
          I am also satisfied that the pivot point of the brake pedal was essentially attached to the steering column so that rearwards and upwards movement of the steering column produced essentially corresponding rearwards and upwards movement of the brake pedal.  Because the brake pedal was mounted to the structure associated with the steering column, the brake pedal in effect moved rearwards and upwards in sympathy with the column and in doing so the brake pedal came to rest in a position which Dr Grigg described as slightly forward and above the front of the driver's seat.  The brake pedal came to its final position as appearing in a number of the photographs  within about one-tenth of a second after the instant when the utility struck the tree.  Exhibit 8 and Exhibit 17 - photo No. 14 and photo No. 3 quite clearly show the pedal in its final position.
          Dr Grigg gave evidence as to certain measurements he had taken concerning the brake pedal.  These measurements were very recently taken.  In Exhibit 73 (dated 28/2/96) he said  (p. 5):-

"Although the floor pan of the vehicle was heavily rusted, the height of the brake pedal above the floor was measured to be approximately 15 inches (380mm) and it was measured to be approximately 9 inches (230mm) from the line of the inside of the door... the pedal was located about 10 inches (250mm) behind the leading edge of the doorway.  This position is nearly half a metre to the rear of its normal location".

I see no reason not to accept these measurements, approximate though they may be and although taken over 13 years after the event.  The position of the brake pedal (immediately after the collision) can be seen in Exhibit 8  (a view looking from the open passenger side towards the driver's side) and Exhibit 17 photo. 3 (a view looking through the driver's side door window down into the driver's side interior of the utility.)  The above measurements in my view indicate what would very likely have been the same measurements had they been made on the morning of 26 October 1982. The above two photographs Exhibits 8 and 17 (photo. 3) - the former taken on the morning of 26 October 1982 and the latter a few months later - confirm the brake pedal's final position after the collision.
          Mr Hampson Q.C.'s submission is that it is more likely than not that the closed comminuted fracture of the first defendant's right femur occurred when the brake pedal struck the first defendant's right leg.  Dr Grigg, when cross-examined, conceded that in the accident the brake pedal had gone closer to the driver's side door than it was when in its pre-accident or original position.
          Photograph number 3 of Exhibit 17 showed, as Dr Grigg said, two thongs with the accelerator on the thong on the right-hand side of the photograph and the brake pedal being seen above the big toe of the left (sic) thong (see p.858).  In my view the word "left" in the transcript is an error and must mean "right" - see the actual photograph.
          Dr Grigg was cross-examined on the basis that at the instant of impact with the tree the driver of the utility was wearing a restraint in the form of a seat belt.  He agreed with Mr Hampson that the driver would move forward from the moment that the utility struck the tree and that the seat belt would assist in retarding the driver's impact with any objects inside the cabin of the utility and in front of the driver which objects had stopped moving at the instant  the utility struck the tree.  In cross-examination he agreed also that, if the driver were seated in the driver's seat, and did not move and could not go forward because he or she was restrained, the brake pedal could have come backwards and upwards from underneath and "attacked" the driver's right leg with probably a knee injury (p. 863).   Once that concession was made by Dr Grigg, then, given that the driver did not necessarily remain seated and did not necessarily not move forward, there was a possibility that, despite the driver being restrained by a seat belt, the driver's right leg may have moved forward and the brake pedal struck the underneath portion of the driver's leg somewhere between the knee and the hip joint.
          Mr Williams has submitted that Dr Grigg's evidence, supported in some material respects by the evidence of Mr King, as to the direction of the forces occurring in the collision, establishes that the brake pedal came into a position (at considerable speed and with great force) where it might contact the buttock area of the driver moving in that direction.  He also submitted that Dr Grigg's evidence established that in the accident the driver moved towards what was called the "A pillar".  This particular evidence of Dr Grigg focused on what he called the A pillar in the utility.  He described the A pillar as follows (p. 858/55) "the A pillar is simply a reference to the metal structure that basically joins the front right-hand corner of the roof to the body of the vehicle and it has various cover strips and features that enable the windscreen to be fitted at the front and the door to have a cover seal on it".   In his very recent examination of the wreck of the utility Dr Grigg had found a three and a half inch long elliptical depression in the A pillar.  He said this indentation was on "really a cover strip that provides a smooth transition between the inside of the windscreen and the door opening".  This depression, according to Dr Grigg was something effectively curved of similar radius to a head (p. 827).  His theory is that the driver would have been partly impelled to the right in the forces created by the collision and that the driver's head struck the A pillar causing the above elliptical depression. 
          It was not in dispute that the plaintiff suffered a depressed fracture to the right fronto parietal area of her skull.  Mr Williams Q.C., in his submissions said "there is no adequate explanation for the plaintiff's injuries other than the hypothesis of a head collision with the A pillar and the brake pedal abrading her buttocks and fracturing her sacrum".
          This theory fails to take any account of the evidence as to the first defendant's head injury.  Dr Monsour the doctor who examined the first defendant in the Toowoomba General Hospital's casualty department early in the morning on 26 October noted (inter alia) "K.O'ed  can't remember the accident".  Dr Monsour ordered certain tests including X-rays of the skull.  I have already referred to his evidence. 
          Dr Rowlings another doctor at the Toowoomba General Hospital examined the first defendant at 3 am on 26 October 1982 and noted "says does not recall accident".
          At 7.45 am on the same morning she again examined the first defendant and she noted "review X-rays, query right fronto parietal linear skull fracture".  (p. 382)
          This was the last entry in the first defendant's hospital records made by Dr Rowlings who also gave oral evidence before me.  I have no reason to doubt what she says.  The contemporaneous notes which she made in the hospital records (see Exhibit 65) make it quite clear that the first defendant was certainly suspected of having a fracture of the right fronto parietal area of his skull. 
          In my view the elliptical depression in the A pillar to which Dr Grigg has referred does not assist in proving one way or the other which of the first defendant or the plaintiff was the driver.  Each had or was suspected of having a right fronto parietal skull fracture and the elliptical depression on the A pillar was slightly to the right and ahead of the driver.

          The next matter which in my view cast doubt on the worth of Mr Williams' submission that the brake pedal abraded the plaintiff's buttocks and fractured her sacrum is the evidence of Dr Brian Swan Purssey a surgeon for many years and who has I am satisfied appeared for over 20 years in courts in Queensland and written reports on cases involving seat belts in motor-vehicle accidents and alcohol in such accidents.   Dr Purssey in the course of his oral evidence while being cross-examined by Mr Williams was (p.298) referred to notations made in the Princess Alexandra Hospital records for the plaintiff which referred to "... lacerations to the right thigh, right leg, abrasions over right and left buttock with the notation "friction and burn" above it."  Mr Williams referred Dr Purssey also to a notation that at 4 am on 26 October 1982 another doctor at the Princess Alexandra Hospital had written "marked grazes and friction burns to right buttock and right thigh, posterior burns? full thickness.  Laceration outer aspect of lower left calf grazes right elbow bruising dorsum right- hand".  Mr Williams asked Dr Purssey (p. 312) - "Such injuries, such friction burns, if you like to call them that or lacerations could occur if a person was ejected from the vehicle and landed on the buttocks on a gravel road?" and he answered "Well yes I was asked to look at these records and read them and work out how these injuries occurred and that's what I have done.  I have looked at them.  I've read them.  I know what causes certain injuries both from my personal experience and my reading over many years and I could not in my mind work out how she is going to get nearly a full thickness abrasion on her buttock and back of the thigh inside the vehicle.  I couldn't see it, I have seen many of these from ejection but I haven't seen them from inside".  A little later Dr Purssey said that from the description that he had been given he thought the plaintiff might have been thrown out on gravel.  Mr Williams asked Dr Purssey (p. 315) "If one is thrown on gravel or dragged across gravel depending on the gravel one could get these types of injuries?" and he answered "The problem is I can only go on the descriptions that are written.   They are written by junior doctors I know this.   These were written some years ago and I am trying to work out quite - you know I am not trying to prove anything.   I am trying to work out how this occurred and having seen lots of car accidents myself  having treated patients having treated a lot of abrasions - if what was said in those records is correct that it is nearly a full thickness abrasion I don't think pulling her along by the legs she is going to rub that amount of skin off but if it were just a moderate sort of abrasion and they were over reacting in what they wrote down, perhaps, I can't say."  Mr Williams then asked "How does one get full thickness burns when one lands on - ...?"  and he answered "That's not a burn, different thing altogether, a burn is a totally different injury.  A full thickness burn looks nothing like an abrasion.  This is an abrasion.  I do not like that term burn and I don't think those doctors should have been using it.
The transcript continued:-

Q.This is an abrasion therefore do we deduce from that it has occurred through contact with a relatively rough or sharp surface?

A.Yes that's right rough surface.

Q.It is not the sort of injury that you would get posteriorly that a person would have skidding on grass that would be the burn rather than the abrasion, wouldn't it?

A.Depends on how fast they were going and what they landed on.  Again this is speculation. I would expect - again not having seen it at the time, I would expect it to be a somewhat more rough surface, yes.

Q.Rougher surface than grass?

A.Yes

(p. 314)
          There is evidence that outside the passenger side door of the car there were grass and gravel (see also photograph Exhibit 4).
          Dr Purssey's opinion is that the plaintiff's injuries to her buttocks and her fractured sacrum were received when as a result of the first impact i.e. the collision with the tree she was ejected from the vehicle and struck the ground with very considerable force such that her sacrum was fractured and the abrading of her buttocks occurred.
          I am satisfied after hearing Dr Purssey that the sacrum which is in the lower part of the backbone is a little bit protected by the buttock on either side and that a fracture of the sacrum is rare (p. 315).  I am also satisfied that considerable force is required to cause a fractured sacrum.  I am satisfied that the sacrum is about 5 centimetres thick at the place where the plaintiff's sacrum was broken.  Dr Purssey agreed that people who are ejected (from motor vehicles) land with great force and this is why the chance of being killed on ejection is somewhere in the vicinity of 50 per cent.  I accept all that evidence.
          Now it is true to say that Dr Purssey was never cross-examined on the theory that on the balance of probabilities the brake pedal caused the fracture of the sacrum.  In fairness to Mr Williams, this was because at the time he cross-examined Dr Purssey he did not have Dr Grigg's final report - in fact Dr Grigg appears to have been in Dalby at the time Dr Purssey gave evidence.  Nevertheless, Mr Hampson elected not to recall Dr Purssey to have this theory put to him.
          Accepting, as I do that a fracture of the sacrum is rare and accepting that the fracture of the sacrum suffered by the plaintiff in this accident required the application of great force to the sacrum and accepting the position of  the sacrum in the body I am quite unable to conclude - even on the balance of probabilities, that the brake pedal fractured the sacrum.  Dr Grigg was cross-examined on the basis that whoever was driving the car was restrained by a seat belt a basis which I accept was correctly founded in fact.    For the sacrum to have been fractured by the brake pedal after the brake pedal had abraded the plaintiff's buttocks, the plaintiff's body must have somehow or other got into a position where the brake pedal could strike the sacrum with great force - sufficient to fracture the bone - despite the protection of the sacrum referred to by Dr Purssey.
          At the end of the day I prefer the evidence of Dr Purssey that the fractured sacrum could not have occurred while the plaintiff was still within the cabin of the utility and that it occurred when she was ejected from the utility and struck the ground outside. 
          The next matter concerns evidence as to the marks on the Blaxland South Road indicating fishtailing of the utility.  I listened carefully to the evidence and I accept the evidence of Senior Constable Allen that these marks were made by a vehicle under control and were not made by a vehicle out of control.  Obviously, because of the collision with the tree beside the road the utility was out of control at the instant of impact and I find this lack of control lasted for a very short distance.   The distance from where the vehicle left the road surface up to the rear of the stationary utility (see the plan Exhibit 35) was approximately 14 metres.  The distance during which the utility was out of control was probably some 20-30 metres - a very small portion of the approximate 900 metres from the Blaxland Road junction.   
          I am satisfied after hearing Senior Constable Allen that to cause a Holden utility such as the one which crashed on 25 October 1982 (which had an 8 cylinder motor and which lacked power steering) to fishtail requires considerable strength in the driver.  I am satisfied that greater strength is required to fishtail a vehicle without power steering than a similar vehicle with power steering.
          At the time, the plaintiff was a small woman  - approximately 5 feet 1 inches tall and weighing about 40 kilograms.  As I shall later mention the evidence disclosed that when she drove the utility she needed a cushion on or at the rear of her seat.  By contrast, the first defendant was quite a tall man and obviously considerably stronger than the plaintiff.  In my view the first defendant was physically much stronger than the plaintiff and on the night of 25 October 1982 much more likely than the plaintiff to have been capable of fishtailing this utility without losing control of it for a distance slightly less than some 900 metres.
          I do not accept as true the first defendant's sworn denials that he had fishtailed a motorcar at any time.  He was an unimpressive witness.  He conceded that he had fishtailed motorcycles before 25 October 1982 - I am satisfied that as at 25 October 1982 he well knew how to cause a motor vehicle such as this Holden utility to perform fishtails and I find it more likely than not that before 25 October 1982 he had caused motor vehicles driven by him to fishtail on gravel roads around Dalby.
          After watching and hearing the first defendant give his evidence I have concluded that despite his having been knocked out in the accident and suffered some head injury he knew and still knows a lot more about this collision than he was prepared to tell me.  I am satisfied that the first defendant knew that had the Dalby police been able to obtain evidence that the first defendant was driving the utility at the time of the collision he would be prosecuted for driving while under suspension and he believed he might well go to gaol.  I am satisfied this knowledge led him to admit to the plaintiff (with whom he was living as husband and wife) that he was the driver and also led him to request her not to tell the police.
          Then there is the evidence that it was the plaintiff who drove the utility to Blumke's house and that it was the plaintiff who usually drove the utility when the first defendant was in the utility and disqualified from driving.  These pieces of evidence point towards the plaintiff being the driver at the time of the collision, but I do not look at that evidence in isolation from the rest of the evidence before me.  Nevertheless I take it into consideration in my evaluation of all the evidence in this circumstantial case.
          Again, there is evidence that when the plaintiff drove the utility she sometimes sat on a cushion to give her better forward vision and sometimes had a cushion behind her between her back and the rear upright of the seat.  Exhibit 8 which is one of the photographs taken on the morning of 26 October 1982 does not show any item inside the utility which could be confidently described as a cushion.  No other photograph taken at that time (see Exhibits 1 to 8 before me) shows a cushion. 
          Photograph number 10 in the series of photographs (Exhibit 17) taken sometime later and after the utility had been moved to a different site, shows a cushion on the driver's side seat.  Photographs 11, 12, 13 and 14 of the same Exhibit confirm the presence of the cushion on that seat.  I place greater emphasis on Exhibit 8 than I do on the above five photographs in Exhibit 17, in so far as concerns the question of whether or not the cushion was on the driver's side seat at the time of the collision.  I note that Exhibit 8 shows the driver's side window to be partly down.  In Exhibit 17 photograph number 10 shows the window winding handle in a different position from that in Exhibit 8.  How the cushion came to be on the seat in this photograph and photographs 11 to 14 inclusive was not explained.  I find there was a cushion inside the utility cabin at the time of the collision but where it was at that time is not known and its presence inside the cabin does not assist me at all in deciding who was the driver.
          The first defendant's injuries included the following as noted in Exhibit 65 being the initial entry made in the Toowoomba General Hospital records when the first defendant was admitted in the early hours of 26 October 1982 - "on examination broken front teeth swelling and tenderness over left maxilla tender over right chest wall anteriorly and superficial abrasions ++."
          When Dr Rowlings examined the first defendant at 3 am on 26 October 1982 she noted (inter alia) "fractured maxilla with broken front teeth" and "anterior chest wall bruising".  (The underlining is mine).
          Dr Monsour in his oral evidence was asked what the two ++'s meant and he said they meant "more than minor degree of superficial abrasions" (p.465-18).  He demonstrated where abouts on the chest these abrasions were.  As I noted his hand motion in the witness-box it straddled the area of his right nipple.  When cross-examined by Mr Williams he said "They were not deep abrasions or cuts but they must have been extensive abrasions because I have put two ++'s."   Mr Williams asked "There are lots of them" and he answered "Yes, I would suspect that yes."   I accept Dr Monsour's evidence that the abrasions above described were extensive and there were lots of them.
          Dr Purssey in his written report (Exhibit 29) had said:-

"The person driving the car must have come into contact with the steering-wheel and steering-column as it was the driver's body that would have caused the bending of the lower part of the steering-wheel and the break in the upper part of the steering-wheel as is clearly visible in several of the photographs.  It is inconceivable that the driver of this vehicle could have escaped without injuries to the anterior chest wall."

(If by "broken" Dr Purssey meant the rim of the wheel was broken then Dr Purssey misinterpreted a photograph or photographs as showing the upper part of the steering-wheel broken.)

Dr Purssey then referred to the first defendant's admission notes from the Toowoomba General Hospital and said:-

"Hedge, on admission to Toowoomba General Hospital at 10.30 pm approximately on 25 October 1982 was found to be "tender over  R chest wall anteriorly and superficial abrasions ++"  Later at 3 am he was found to have "anterior chest wall bruising" and "a lot of abrasions over anterior chest wall."  Also his maxillary fracture and injury to his teeth and lips would have been due to his face striking the steering-wheel."

I do not know the source of the 10.30 p.m. statement in this passage - it seems to be incorrect when compared with the notes made by Dr Monsour which were dated 26th October 1982.  If this is an error it does not diminish the force of what Dr Purssey has said.
Dr Purssey continued:-

"If as has been suggested to me teeth marks were found on the steering-wheel this would  be consistent with the injury sustained by Hedge and would further emphasise, if any further emphasis is needed, that Hedge must have been driving the vehicle at the time of the accident.  Trenerry had no injuries to her teeth or face consistent with her face striking the steering-wheel.  It is possible that he may have been restrained by a seat belt which could have prevented further major chest injury such as a stove-in-chest.   In a vehicle of this age and with an impact as severe as this his chest and face could have come into contact with the steering-wheel and column which has been pushed back and upwards to a marked degree."

Dr Purssey then referred to certain articles in overseas studies of drivers who were restrained by a seat belt and whose facial injuries had occurred from contact with a steering-wheel and he said "of one particular study", of the 135 drivers analysed 7 had loosened, avulsed or fractured teeth and two had a maxillary fracture".

He later pointed out that as far as the plaintiff was concerned, when she was admitted to the Princess Alexandra Hospital at approximately 4 am on 26 October 1982 it was specifically noted that there was no bruising to the chest and no clinical or radiological evidence of fractured ribs.   He went on "it would NOT have been possible for  Trenerry to have been driving this vehicle at the time of the accident and to have bent and broken the steering-wheel without any  signs of chest injury".
          Although in this matter I generally accept Dr Purssey's opinions and despite the incorrect reference to the break in the upper part of the steering-wheel, and although I accept - particularly the matters which are above setout, in fairness to the defendant by election I should say that in Exhibit 29 Dr Purssey canvassed the cause of the first defendant's fractured right femur and he said that this "would have resulted from his right knee striking the dash which could have also caused the damage to the lower  dash - to the right of the steering-wheel which is clearly visible in photograph 3".
          Now as I have already mentioned Dr Purssey was not examined concerning Dr Grigg's subsequent evidence as to the movement of the brake pedal to its final position and the question whether this brake pedal could have caused the fractured femur.  Consequently, Dr Purssey has had no opportunity to deal with that thesis.  Although I do not accept Dr Purssey's view as stated in Exhibit 29 as to the cause of the fractured right femur this non-acceptance does not alter my general acceptance of his opinions.
          I turn now to the evidence of damage on the passenger's side of the utility's cabin.  Dr Grigg saw some distortion of the glove box and saw this as consistent with some person having been in the passenger seat at the time of the collision with the tree.  Of there being a person in that seat there is no doubt.  The windscreen on the passenger's side was damaged.  These areas of damage are in my view not consistent with the first defendant having sustained his fractured right femur by striking the glove box or the windscreen or any other part of the utility on the passenger's side interior.  The femoral fracture was comminuted which indicates that at the site of fracture the femur was reduced to small portions.  The fracture was closed and I understand that to mean the skin of the leg was unbroken.
          The thongs seen in the car by the plaintiff's mother on the night of the accident really do not help much  on this issue of "who was the driver?"  I have no doubt that the larger pair of thongs belonged to the first defendant and the smaller pair were the plaintiff's.  However their positions post-accident are equivocal.  There is no evidence that either the first defendant or the plaintiff was actually wearing his or her thongs when the utility left Blumke's, nor is there evidence that the plaintiff was wearing hers on arrival at Blumke's.  There is evidence, which I accept, that it was the first defendant's habit when wearing thongs to remove them before entering the house and walk into the house bare foot.  It may have been that each of the first defendant and the plaintiff drove with bare feet but - this is speculation.  The thongs and their positions in the utility do not help me.
          The plaintiff's handbag however is of some assistance.  I have accepted Mrs Trenerry's evidence as to where she found it - on the passenger's side.  Its presence there is an indication,  but no more than that, that the plaintiff may well have been sitting in the passenger's seat at the time of the collision.  It is one of a number of matters I take into account in this circumstantial evidence case.
          Next is the matter of how the plaintiff came to be outside the open passenger's side door of the utility when Blumke arrived at the accident scene some 4 - 5 minutes after the collision.  I reject the first defendant's evidence that he pulled her out of the car.  I reject his evidence that she was in the driver's seat and that he was in the passenger's seat when he recovered consciousness after the collision.  I find that his comminuted fracture of the right femur was very painful indeed and was such that, had the plaintiff been in the passenger's seat immediately after the collision it would have been physically impossible for the first defendant, because of the fractured right femur, to have got himself out of the utility and pull the unconscious plaintiff out of the utility and to the position where she was found by Blumke.  I have already made findings as to what the first defendant first recalled after the collision - that he was sitting outside the utility and the plaintiff was lying near the open passenger's side door with her head nearer than her feet to the first defendant.  Despite the presence of what has been called a burst proof lock on the passenger's side door of the utility I have concluded that it was more likely than not that immediately after the collision with the tree the plaintiff's body (not being restrained by any seat belt) moved forward, her head struck an object inside the utility, (probably the windscreen) and she was then thrown back with considerable force and her body which as I have said was not tethered by any seat belt, travelled through the passenger side door which had opened during the collision and its after effects and that she struck the ground outside with considerable force sustaining in the process her fractured sacrum and the friction burns and abrasions to the posterior upper legs and buttocks.  On this aspect I accept the evidence of Dr Purssey that these abrasions and friction burns could only have been caused by her striking the ground following ejection from the vehicle and that the fracture of the first sacral segment could only have been caused by her striking the ground following ejection and that a fracture of the sacrum is caused by either a blow from behind or a fall onto the buttocks.

1/07/89	30/11/89	153 days	@ $70 per day	$  10,710
1/12/89	29/02/92	821 days	@ $81 per day	66,501
1/03/92	31/03/93	395 days	@ $85 per day	33,575
1/04/94	14/05/96	1,140 days	@ $100 per day	114,000
2,509 days	$224,786

I have excluded any administration fees because during this period there was no need to obtain a carer in the market - Mr Dale met the needs.
          The total of the damages on this head for these 3 periods to 14 May 1996 is $289,925-00.                   Interest on Past Care
          I allow interest on $289,925 at 2 per cent for 13 years.  The arithmetical calculation produces $75,380 and I allow this sum.
  Future Care and Assistance      
          The parties have agreed that the plaintiff has a life expectancy of another 50 years.  This in effect means till age 81.
          As I have already found the plaintiff needs constant supervision, i.e. for 24 hours each day with care and attention during the day.  A number of these hours are taken up with supervisory care.  For the past 7 years Mr Dale has provided all care and assistance which the plaintiff has needed.  He has been ever present to attend to her.  After each child was born and returned home it was he who attended to the child's needs - I have already mentioned what he did in this respect.  I do not propose to repeat that. 
          Although he is the plaintiff's husband and will in the immediate future probably continue to meet her needs, the damages for meeting those needs are assessed by reference to the market cost of providing the services (Van Gervan v. Fenton (1992) 175 CLR 327.
          The evidence of Mrs Omiros is that the market cost of the constant care and attention needed by the plaintiff (and based on her firm Domicare providing those services) is $120 per day.  Of this $100 is paid to the carers and $20 for administrative costs of the provider.
          Mrs Omiros at present provides service for a boy in Dalby, but not on a 24 hour contract.  After hearing Mrs Omiros I am satisfied that it is possible for continuous care to be provided quite easily by three carers in each 24 hours.  I also accept her evidence that it is possible to obtain live-in carers as well as 24 hour carers and, that keeping 24 hour carers and live-in carers on a permanent or long term basis can prove difficult.  I accept her evidence also that if, for example, the plaintiff were to find a suitable live-in carer, it may well transpire that that live-in carer could continue her care commitment for the plaintiff for a number of years. 
          As I have earlier said, I reject the defendant by election's contention that the cost of accommodation and other facilities at Leighton Lodge is the yardstick by which the damages for this plaintiff's needs should be assessed.
          I propose to act on the evidence of Mrs Omiros and I do not overlook the contents of her reports (Exhibits 41, 42, 43).
          At $120 per day ($840 per week) the present value of such a weekly outlay for the next 50 years is, on the 5 per cent tables, $819,840.  If I assume the life expectancy were 45 years than the present value of such weekly outlay on the same tables is $798,000.  If I assume the plaintiff will live for another 55 years the present value of that weekly outlay on the 5 per cent tables is $836,640.
          The life expectancy of the plaintiff as agreed i.e. 50 years, is a statistical average and it is trite to say there is a possibility that the plaintiff will live beyond 81 years and, a possibility that she will die before reaching that age.  There is no doubt that her need for constant supervision and attention will continue until her death.  I do not overlook the quite slight possibility that by age 45 or 50 and the slight possibility that by age 65-70 the plaintiff may have suffered a mental decline because of the brain injury, such that she will require to be confined in some type of institution and in which event she will still be in need of constant supervision and will need constant care and attention.
          I should at this stage mention that Mr Williams addressed an argument to the effect that the defendant by election should not have to pay for the cost of services to meet the plaintiff's needs when those needs arose from the plaintiff having borne 2 children.  His argument was that the evidence showed that the plaintiff and Mr Dale made a conscious decision to have these children at a time when Mr Dale knew that he would have to care for the children.  There is no doubt that the plaintiff and Mr Dale did make a conscious decision that they would have these 2 children.  His argument in short, was that the plaintiff's need for services concerning the children has arisen  from the decision to have the children and not the results of the 1982 accident. 
          In my respectful view this argument fails.  I find that at 25 October 1982 it was reasonably foreseeable that the plaintiff, then a young woman approaching her 18th birthday, would, in the future marry and bear children.  Once that is accepted (see Overseas Tankship (U.K.) Ltd and The Miller Steamship Co Pty & Anor. the Wagon  Mound (No. 2) (1967) 1 AC 617) it is in my view proper that the defendant by election must bear the cost of needs of the plaintiff arising, by reason of the arrival of her children into this world and which needs are I find occasioned as a result of the accident injuries.
          I propose to allow for the present cost of future care and assistance the sum of $820,000.  It can properly be said that one of the "vicissitudes" of which I must take account is the possibility that the plaintiff may die before living out her full life expectancy.  As I have said, I am also entitled to take into account the possibility that she will live beyond the age of 80 years.  That being so, I have taken into account both those contingencies - one which will place a heavier burden  on the defendant by election than the other.  It seems to me that the appropriate course is to rely on the statistics and assess this component on the basis that the plaintiff will live out her expected life of 80 years.  As was pointed out in Wynn v. N.S.W. Insurance Ministerial Corporation (1995) 70 A.L.J.R. 147, all contingencies are not adverse and all vicissitudes are not harmful.
  Future Requirements
          I have appended to these reasons a schedule numbered 1,  in which appears a list of items which the plaintiff's counsel claim are reasonably necessary for the plaintiff as a result of her accident injuries.  Each of the items mentioned in the schedule will require replacement throughout the rest of the plaintiff's life.  The schedule shows, in respect of a number of the items, the frequency of replacement and the present value of the costs of replacement.  The schedule is based on the evidence of Lesley Stephenson an Occupational Therapist.  The rocker knife is necessary because I am satisfied the plaintiff has a weakness in her right hand such that she needs an adapted eating utensil.  The "976" which appears in Schedule 1 is the multiplier for 50 years on the 5 per cent tables.
          I am satisfied the plaintiff has difficulty opening or jars due to loss of coordination and strength.  As for the jar opener there is a variety of such openers.   I have not allowed for an electric can opener although I am satisfied the plaintiff lacks coordination to open cans manually.  The 24 hour carer will meet this need.
          The panty-liners are reasonably necessary.  
          I come now to the matter of the scooter.  The scooter proposed has four wheels and is battery powered.  It is not intended to be used by the plaintiff for transporting herself independently.  It will be used to enable her to go out with another person, e.g.  her husband or a carer and without the distress of her becoming fatigued.  I am satisfied that it is reasonably necessary that this plaintiff, who as I have said has marked difficulty in making herself understood by other people, should at least be able to leave her home accompanied by some other person and not be disadvantaged by having to spend most of her time at home.  I accept the evidence of Miss Stephenson on this point.  I am satisfied that the plaintiff is unsteady on her feet and that walking for any distance causes her fatigue.  I should add that I am satisfied after hearing Miss Stephenson that by the time she saw and examined the plaintiff in 1995 she found that the plaintiff's level of fitness had lessened quite significantly compared with when she first saw her some years earlier.
          The dustbuster is a light weight hand held vacuum cleaner which is within this plaintiff's capacity to use.
           The mesh glove is necessary because of the plaintiff's history of regularly cutting her hands when using a knife.  This tendency to cut herself is due to the accident injuries.
          Freezer - According to Miss Stephenson, this item is reasonably necessary because of Mr Dale's work load.  Miss Stephenson proposes the freezer be used to store multiple portions of food cooked for the plaintiff's special diet.  Of course, one does not know for how long Mr Dale will continue to manage his present heavy daily work load in caring for the plaintiff, the two children and their house.  I think it more likely than not that had this plaintiff not been injured, the plaintiff and her husband would have needed only a normal household refrigerator part of which contained a freezer compartment.  The freezer proposed by Miss Stephenson is a separate item.  The cost indicates that not a large freezer is proposed.  I find that in the particular circumstances of this plaintiff's case, a freezer is a reasonably necessary item for which she should be compensated by the defendant.
          As for the hands-free phone, again, I am satisfied this is reasonably necessary.  It is not absolutely essential but it is reasonably necessary for a number of reasons.  One is that this plaintiff lacks confidence in using the phone - she is well aware that people find it hard to understand what she is saying and, I am satisfied the hands-free telephone will give her the opportunity of developing more future independence.  Another reason is that because of weakness in her hands, the hands-free phone will enable her to have longer social interaction with telephone callers or persons who she rings up.  A further reason is the plaintiff's poor memory.  (see Dr Powell's evidence.)
          As for the answering machine, again I accept the views of Miss Stephenson.  She considered that a hands-free phone and an answering machine would be an ideal combination.  I should add also, that in allowing for the hands-free telephone and the answering machine, I have also relied on Dr Powell's evidence and I have taken into account the very real possibility that the plaintiff will have speech therapy with a view to improving her speech and possibly improving her opportunities for social interaction with other persons.
          The cordless phone was recommended by Miss Stephenson in order that Mr Dale could answer the telephone whenever he happened to be working outside the home.  I do not consider that the cordless phone is reasonably necessary.   If Mr Dale happens to be outside the house and the telephone, assuming it be a hands-fee telephone rings, the plaintiff is capable of answering it although it is fair to say a caller who is unfamiliar with the plaintiff's speech may well have considerable difficulty in understanding what she says and may well find her unintelligible.
          The final matter is the CB radio.  Miss Stephenson intends that this be used in any vehicle which the plaintiff or her husband may own and in which both are then travelling.  As she has said in Exhibit 27, "it is for the plaintiff's husband when seeking help in case of a vehicle breakdown because he would be unable to leave his wife alone".  As I have already said, this plaintiff needs 24 hour  supervision.  I consider the CB radio to be reasonably necessary.
          Electric razor - in my view, this is reasonably necessary - it will be used by the plaintiff to shave her legs.   I find that with a blade razor and because of her propensity to cut herself with knives she is likely to cut herself and the electric razor will obviate this risk.
          I have not allowed the kitchen trolley - its purpose, although designed to maximise the plaintiff's independence, will be superseded by the constant carer meeting this need.
          I do not allow the push-bike side seat.  The back support for the bed I consider reasonably necessary.  I accept Miss Stephenson's opinion that the support will be needed because of the plaintiff's back pain and, that a person with back pain such as this plaintiff reasonably needs a bed with firm support to minimise back pain.  The type of bed as costed in the schedule is one readily available in commercial outlets such as David Jones and Myer Stores (p.263).  I accept Miss Stephenson's evidence that the bed will need replacing every 5-10 years - the schedule is based on 8 year replacement.
          I have rejected the claim for the microwave oven.  If this were provided then in my view, there is an element of double counting in that the 24 hour carer would be the person using the microwave oven and not the plaintiff.  Furthermore, in my view, microwave ovens are now in very common use throughout the community.  Similar comments apply to the wall mounted convention microwave oven  which the plaintiff's counsel has sought to have included in schedule 1, but which I have deleted.
          The items in Schedule 1 which I allow total $25,786-24.  I have discounted this figure to $23,800 to allow for the slight possibility that for part of the rest of her life this plaintiff may live in an institution due to senile dementia.  The discount is by about one-thirteenth based on figures in Schedule 1. 
  Future Medical Expenses
          I am satisfied on the evidence that the plaintiff will need constant medical attention including attendances on doctors for prescriptions and that  these needs have resulted from the accident injuries.  The evidence shows that she needs to see a doctor about once a week (p.506-20) I accept that evidence.  At the current AMA recommended fee of $33 per consultation - a figure agreed on by the parties - the present value of such cost for the rest of the plaintiff's  life, using the 5 per cent tables is $32,208 - I round this sum to $32,200.
          In addition, there is evidence that this plaintiff reasonably needs to see a podiatrist on a 4- 6 weekly basis (see Exhibit 19 p.6).  The admitted cost of a standard consultation is $30.  Breaking this down to $6 per week, such a weekly outlay for the rest of her life using the 5 per cent tables is $5,856.  I round this sum out to $5,800.
          I allow $38,000 for future medical expenses.
  Out of Pocket Expenses - Non Interest Bearing
          As the plaintiff is successful in this action, she is liable to the Princess Alexandra Hospital in the sum of $35,880 and to the Mater Misericordiae Hospital in the sum of $5,580.  I allow $41,460.
  Out of Pocket Expenses - Interest Bearing
          Here there are a number of heads of claim.  The first amount is $7,130 for travelling from Dalby to Brisbane and return.  The claim is made for the plaintiff's father travelling every week for the first 10 weeks, for the plaintiff's parents travelling weekly for the next 11 weeks, until the plaintiff was transferred to the rehabilitation ward of the Princess Alexander Hospital on 15 March 1983, then for 8 fortnightly trips from then until the plaintiff's discharge in July 1983 as well as 2 later trips to Brisbane when the plaintiff underwent surgery.  The total number of trips claimed is 31.  The costing is 50 cents per klm for a 460 klm return journey on each trip.  The total sought is $7,130.  The only concern I have had is whether or not the claims for the first 10 trips were reasonably necessary .  I have decided that they were and that the remaining trips were also reasonably necessary.  The situation was that the plaintiff's parents were confronted with an unconscious daughter who, as far as they knew, might regain consciousness at anytime.  Not unnaturally they would wish to be present when that event occurred and perhaps more importantly their presence would have been welcomed by the plaintiff.  I propose to allow $7,000.
          The next item claimed on this head is $385 for bus fares during travel in Brisbane.  This is based on the plaintiff's mother's evidence of daily visits over 10 weeks (p.603/45) for one person with a bus fare costing $5-50.  I allow $385 on this head as the travel is reasonably necessary.
          The next item is the cost of taxis used by the plaintiff in Dalby.  Exhibit 68 contains butts of taxi vouchers used in 1994 and 1995.  Books were issued by Queensland Transport Department - "Taxi Subsidy Scheme for the Disabled".  The butts in Exhibit 68 cover part of the period of the claim.   The plaintiff's counsel claim an average of one trip per week at $4 per trip from the time when the plaintiff was discharged in July 1983 until the trial - a total of 656 weeks.
          I do not overlook that during the first 14 months or say 60 weeks the plaintiff resided with the Hedge family and there is no evidence that she needed taxis during this period.
          While the plaintiff was living with her parents (and before Mr Dale appeared on the scene) she does not appear to have needed taxis as frequently as she did after the children were born and it became necessary for the plaintiff to travel from the home for various reasons.  I propose to allow $1,750.
          Next, the claim is made for cost of the plaintiff's parents' accommodation, during the times they came to Brisbane from 25 October 1982 until 13 July 1983.
          On this topic Mrs Trenerry gave evidence.  I am satisfied that the plaintiff's parents spent 2 weeks with a sister-in-law at an average cost of $25 per week.  They then stayed for 3 weeks at a unit in Redcliffe, at costs varying from $250 to $230 per week.  Averaging this at $240 an amount of $720 is sought. 
          Following this, for a period of 4 weeks the parents stayed at relatives at an average cost of $65 per week.  $260 is sought.  During weekend visits thereafter until 15 March 1983 accommodation cost of $20 per weekend is claimed and after 15 March and until 13 July 1983 when fortnightly visits occurred accommodation costs of $20 per visit is claimed.  The total claimed for the weekend visits and the fortnightly visits is $380. 
          I find that it was reasonably necessary for this plaintiff to have the regular visits made by her parents up until she was discharged from hospital on 13 July 1983.  I consider the costs of their accommodation were reasonably incurred and I allow $1,400 on this head of this claim.
          I assess the total at $10,535.
  Interest On Out of Pocket Expenses  (Interest Bearing)
(a)     Travel Component  $  $
          I allow 6% on $7,000 for 9 months  315-00  
          and 12% thereafter for 12.75 years                  10,710-00                11,025-00
(b)     Bus fares
          I allow 6% on $385 for 9 months  17-32
          and thereafter 12% for 12.75 years  589-00  606-32
(c)     Taxi fares
          I allow 6% on $1,750 for
          11.75 years.  1,233-75
(d)     Accommodation
          I allow 6% on $1,400 for 9 months  63-00
          and thereafter 12% for 12.75 years  2,142-00                  2,205-00
  $15,070-07
          I round this sum to $15,070.
  Future Travelling Expenses
          The taxi vouchers show that as a result of her accident injuries, the plaintiff has incurred  - on average - expenses at the rate of $4 per week for travelling for medical and pharmaceutical purposes.  These expenses have been on the basis that the plaintiff has government subsidised taxi vouchers which allow her half price taxi fares.  The plaintiff's counsel have argued that on the basis of a weekly cost of $4 for taxis during the rest of the plaintiff's life the present value of such cost (on the 5 per cent tables) is $3,940.  Of course there are a number of vicissitudes which may be taken into account some of which would cause a substantial discounting of that sum.  For example, the plaintiff's husband may buy a motorcar which is adapted for him, a one armed man to drive; that car may be used for any necessary trips to take the plaintiff to and from her doctor or chemist.  There are no figures before me as to reasonable costs for use of a car for such purposes.   I consider those costs may well be less than the weekly $4 for taxis.

          As against that, there is no certainty that this plaintiff will continue to enjoy the benefit of government subsidised taxi vouchers.
          I have decided to allow $3,600 on this head.
  Accommodation Requirements
          Dr Glenda Powell, who I have already mentioned is a specialist in internal medicine, in geriatric medicine and in rehabilitation medicine and has furnished a written report on the plaintiff as well as giving oral evidence.   She has had dealings with the plaintiff since 1982 when she was a consultant involved in the plaintiff's rehabilitation at Princess Alexandra Hospital.  In her report (Exhibit 19) she opined that the severe head injury suffered by the plaintiff had left her with a number of residual problems which she set out in pp. 5 and 6 of her report.  She considered that the minimal requirements in the plaintiff's home would be:-

(a)handrails on all stairs for safety.

(b)a separate shower cubicle and separate toilet cubicle with appropriate handrails for safety.

(c)preferably a low set home without steps, but if this were not possible suitable handrails should be in place.

(d)she would need a hands-free telephone since her speech is often unintelligible and her memory is poor, hence an answering machine will also be required.

(e)she would require an automatic washing machine and a dryer since because of her poor balance she has difficulty in hanging out clothes.

Of these matters the telephone and answering machine I have already dealt with.  The washing machine and dryer were not pressed - quite correctly - because the carer will attend to these matters.  I accept Dr Powell's evidence. 
          Lesley Stephenson, in her report dated 25 September 1995 (Exhibit 27) has said that the plaintiff requires an en-suite toilet because she has a constant sense of urgency and spends a lot of time on the toilet and this is inconvenient for the rest of the family.  I am satisfied that the provision of an en-suite toilet is reasonably necessary for this plaintiff.   Miss Stephenson also said in that same report that the plaintiff needed a house with ramps as she became exhausted when negotiating steps, that any residence of the plaintiff should not have sliding doors because the plaintiff is likely to trip on the bottom runner and that the plaintiff should have a pool for fitness and heat.
          As to the first two of Miss Stephenson's recommendations I have no difficulty in being satisfied that they are reasonably necessary, if not essential for this particular plaintiff.  In respect of the provision of a pool  Miss Stephenson when cross-examined by Mr Myers for the defence said (p.270):-

"I think a pool would be very beneficial, because hydro-therapy is well known to provide improved cardo-vascular fitness, general strength, a form of exercise, particularly for people with back injuries where exercise with gravity, such as walking, running or aerobic type exercise can incur more back pain.  I think exercise in a pool has very high benefits so from that point of view I think it would be very therapeutic."

There was evidence from the plaintiff that since the accident she had gone to the public swimming pool at Dalby, but did not swim.  Miss Stephenson continued:-

"I am suggesting it would be very good for her to - the fact that she would be in the pool and moving - even walking in the pool would be very good exercise for her.  The heat that we are talking about  isn't so much that she has got a spinal injury causing thermo-regulation problems - it is more that heat is very good for a person with back injury so, it is more an application of heat."

Mr Myers put to Miss Stephenson "she doen't seem to do anything in the nature of exercise, when she did go to the pool it seemed that she simply goes there to splash around"? and Miss Stephenson replied "again a person just splashing around is getting some exercise.  I feel that she has a very sedentary type life style, it is not very active, she isn't going out a lot, add that to the fact that she does have back pain, some form of exercise would essentially be good for her so from that point of view - whereas it isn't essential, I think it would be very beneficial for her".   Miss Stephenson went on to say that she had had a lot of experience recommending hydro-therapy for a wide range of injuries and disabilities over many years and, that she could certainly vouch for the benefits of that form of therapy both from what she had seen herself of improved fitness of clients and also from their report that they found it an extremely beneficial form of exercise because they can often exercise without pain in the water.  I am satisfied that Miss Stephenson has years of clinical experience in observing hydro-therapy as a very effective therapy.  I have no difficulty in accepting Miss Stephenson's evidence on the above matters which I have set out.   Another point made by Miss Stephenson which I accept is that the plaintiff does not have a lot of insight into therapeutic affects of exercise and there is a need in her life to balance up exercise versus inactivity.
          As I have already said the quality of this plaintiff's life has been very badly damaged by the accident injuries.  To obtain the benefits of hydro-therapy and improve her level of fitness through exercise the plaintiff could go to a community pool or, if any house in which she resided had a pool, she could use that pool.  If she were to attend a community pool she would need supervision.  If she used her own pool she would still need supervision. 
          At the end of the day, I have concluded that the provision of a pool for this plaintiff is reasonably necessary.  Her ability to participate in sports which she formally enjoyed, and there were a number has disappeared.  A pool will be one site at which she will be able to meet her friends and inter act socially with them.   From the evidence I have heard it is probably the only avenue open to her for such a purpose.  The therapeutic benefits are also very important.
          Mr John Deshon, an architect, has given estimates of the following costs:-

1. Modify shower enclosure - non slip flooring, recessed fittings, install grab rails, thermostatic mixer, shower seat, remove hob -   $1,820

2. Replace hazardous floor finishes, repair junctions of dissimilar finishes, eliminate cover strips - $2,700

3. Replace taps and door knobs - all taps with thermostatic control -   $2,560

4. Round-off sharp wall and bench corners, make good disturbed floor and ceiling finishes - $1,400

5. Swimming pool - including electric heat pump -   $25,000

6. Professional fees 15 per cent of $8,480  $1,272

Mr Deshon, also gave evidence of the following costs:-

(a)construct carers quarters - 28 s.m. x $540 per s.m. -   $15,120

(b)fit-out carers bedroom and kitchenette -    $8,000

(c)break-out for extension, make good -   $5,000

(d)install smoke/intruder detectors -   $1,630

(e)garden paths -   $1,080

(f)council permits -   $570

(g)additional carport -   $5,400

Total of (a) to (g)     $36,800
          Having read Mr Deshon's report and heard his oral evidence, I am satisfied that each of these items is reasonably necessary.  I mention particularly Mr Deshon's comments about the carer's quarters in which he said:-

"Although a carer will be required to be involved in most aspects of the life of Mrs Dale and her family, it is reasonable that he/she be able to retreat from it on occasion to a private personal space.  Floor area of 28s.m. will accommodate a bed/sitting room with kitchenette and a modest en-suite bathroom.  There should also be provision for covered car accommodation in addition to that provided for the family's vehicle."

One cannot be certain exactly how the future care will be provided, e.g. it may be provided with a live-in carer of the type I have already mentioned, or it may be provided by three different carers each working 8 hour shifts.  Whichever way the care is provided, it seems to me to be reasonable that the carer be able, as Mr Deshon has said, to retreat to a private personal space.  The kitchenette and the modest en-suite bathroom will probably only be needed in the event that the carer lives in and I find that such event is very likely.
          In the present case, considering the effects of the injury on this plaintiff who needs constant supervision and needs care and attention, I consider I should be open-handed rather than close-fisted in assessing damages for accommodation requirements brought about as a result of the accident injuries.   Of the further costs above set out (a) to (g) all, save Council permits, attract professional fees of 15 per cent.  Council permits will not be needed if only the first 4 of the items I have listed e.g.  shower enclosure etc. are done.
          The assessment causes some difficulty.  I expect the plaintiff and her husband will leave their rented accommodation.   If they buy land and build,  Mr Deshon's estimates and costs are very helpful although the break out item $5,000 will then be unnecessary.  If they buy an already built home, all of the items of work above mentioned will probably be performed. 
          I propose to allow $76,000 for accommodation requirements.  
  Future House Maintenance
          Mr Deshon's oral evidence, combined with his report (Exhibit 28) establishes that recurrent maintenance costs for the house including the pool will be $4,138 or $79-57 per week.   A weekly outlay of this amount for 50 years on the 5 per cent tables has a present value of some $77,660.  If that figure is discounted to allow for contingences - the plaintiff's counsel has suggested a 20 per cent discount - a balance, rounded out to $62,000 results.
          I propose to allow this sum on this head.
  Medicare Refund
          The parties have agreed that this amount should be $1,643-55.
  Boarding School Fees
          Exhibit 52 contains details of fees which would have been payable in 1995 for a student attending Fairholme College at Toowoomba as a boarder, or as a day girl and also a schedule of fees for 1995 for a student attending the Toowoomba Preparatory School.  The plaintiff's counsel have prepared a schedule in which they have calculated boarding school fees for the child Sonya for the years 1996 to 2006 (both inclusive) and for Felicity from 1996 to 2007 (both years inclusive).  The total for Sonya is $20,892-57 and for Felicity is $20,822-34.  The claim for these boarding school fees really stems from the evidence of Mr Salzman, a psychologist who furnished reports and gave oral evidence.  At p.242 of the transcript he explained the following statement in his report Exhibit 23 concerning enhancement of the children's progress if they are sent to boarding school where they can be assisted with their school work and be given the opportunity to optimise their intellectual abilities.   He gave the following reasons for this statement:-

"There were a number of reasons.   Number one is both parents usually assist with the child and their studies; they help, number two the children learn from their mother.  Their mother is a role model and obviously Mrs Dale's intellectual level is bordering on mentally retarded and they are deprived of a role model of somebody in the average range and I felt it would be better for them to be in an environment where, as I said, their education would be optimised.  Mr Dale will be very busy taking care of his wife and I don't think that the children would have the same opportunities that they would have had if Mrs Dale had not had a head injury."

He later added:- "and the assistance in studies and just general intellectual communication that goes on in the house which aids a persons peripheral education".

There is no doubt in this case that the plaintiff's intellectual level and her communication problems mean that she will be able to give little if any assistance in the children's education.
          One of Mr Salzman's reasons can be put to one side because the cost of future care, as provided for in the award of damages will be sufficient to enable a carer to be employed and release Mr Dale to give time to the children including assistance with their studies.
          However, in my view, damages for the boarding school costs are too remote.  They are not reasonably foreseeable.  At the date when the plaintiff was injured, it was certainly reasonably foreseeable that the plaintiff would marry and bear children.  However, it was not reasonably foreseeable that damages flowing from the tortious injury of the plaintiff would include the cost of sending those children to a boarding school.  I decline to allow anything on this head. 
  Public Trustee Fees
          Allowance must be made for these and I shall hear from the parties as to the appropriate figure in the  light of the total damages assessed.
  SUMMARY
          In summary then I assess damages so far as follows:-  $  

1. Pain suffering and loss of amenities -   150,000-00          

2. Interest on past component thereof -   19,995-00

3. Impairment of earning capacity - past  70,000-00

4. Interest thereon -  67,935-00

5. Impairment of earning capacity - future -   280,000-00

6. Superannuation loss -   75,000-00

7. Past care and assistance -   289,925-00

8. Interest thereon -   75,380-00

9. Future care and assistance -   820,000-00

10. Future requirements (Schedule 1) -   23,800-00

11. Future medical expenses -   38,000-00

12. Out of pocket expenses (non interest bearing) -   41,460-00

13. Out of pocket expenses (interest bearing) -   10,535-00

14. Interest thereon -  15,070-00

15. Future travelling expenses -  3,600-00

16. Accommodation requirements -   76,000-00

17. Future house maintenance -   62,000-00

18. Medicare refund -   1,643-55

    Total$2,120,343-55  

    I mention now the Limitation of Actions defence pleaded by the defendant by election.  By the close of evidence, this defence was not pursued.  In his closing address Mr Williams Q.C. did not actively press it.
              The plaintiff was under the disability of infancy on the date of the collision.  She attained her 18th birthday on 24 December 1982.  On that day she was still unconscious and remained so until about mid-January 1983.
    The writ was issued on 12th June 1987. The plaintiff replied to the defence plea by alleging unsoundness of mind and claiming to have been under a disability within s.29 of the Limitation of Actions Act of 1974 at all times between 25 October 1982 when her cause of action accrued and 13th June 1984.  The action began within 3 years after 13 June 1984.
              There was ample evidence before me that ever since the accident this plaintiff has been incapable of managing her own affairs.  It is unnecessary for me to deal with this defence in any depth because of the attitude of the defence.
              I note that in King v. Coupland (1981) Qd.R 121 Macrossan J. as he then was, considered a similar case and there decided that the plaintiff's claim was not statute barred.
              His Honour referred to Kirby v. Leather (1965) 2 QB 367 and especially at pp.383-384. Some matters there mentioned were whether a plaintiff is capable of instructing a solicitor properly and exercising reasonable judgment upon a possible settlement and appreciating the nature and extent of any available claim.
              In the present case this plaintiff had none of those capacities at any time after the accident.
    I am well satisfied that at all times since 25 October 1982 the plaintiff has been under a disability within s.29; - she was of "unsound mind" for the purposes of s.29 and s.5(2) of the Limitation of Actions Act and being in that state amounts to a disability.
              I shall hear from the parties on the amount of the Public Trustee fees before formally pronouncing judgment.