Warren Fitzgerald v The Nominal Defendant

[2018] NSWDC 175

District Court

New South Wales

Medium Neutral Citation:	Warren Fitzgerald v The Nominal Defendant [2018] NSWDC 175
Hearing dates:	14, 15, 16, 21, 22, 23, 24 (written submission) and 28 May 2018
Date of orders:	29 May 2018
Decision date:	29 May 2018
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Judgment for the plaintiff in the sum of $349,905.25. (2)   Costs and any issues regarding the amounts agreed for past treatment expenses reserved.
Catchwords:	TRAFFIC LAW AND TRANSPORT – motor accident compensation – motorcycle – unidentified motor vehicle – contributory negligence - alcohol
Legislation Cited:	Civil Liability Act 2002, s 5, s 5B, s 5D, s 5R, s 49 Evidence Act 1995, s 64, s 66A Interpretation Act 1987, s 7 Law Reform (Miscellaneous Provisions) Act 1946, s 5 Law Reform (Miscellaneous Provisions) Act 1965, s 9 Motor Accidents Act 1988, s 74
Cases Cited:	Amanda's On The Edge Pty Ltd v Dries [2011] NSWCA 358 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731; [2005] NSWCA 110 Grima v RFI (Aust) Pty Ltd [2014] NSWCA 345 MacKenzie v The Queen (1996) 190 CLR 348 March v E & M H Stramare Pty Ltd (1991) 171 CLR 50; [1991] HCA 12 Mason v Demasi [2009] NSWCA 227 Nominal Defendant v Rooskov [2012] NSWCA 43 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 Smith v Randall [2016] QSC 191 Verryt v Schoup [2015] NSWCA 128 Watson v Foxman (1995) 49 NSWLR 315 Wells v Council of the City of Orange (No 2) [2017] NSWSC 510
Category:	Principal judgment
Parties:	Warren Rayment Fitzgerald (plaintiff) The Nominal Defendant (defendant)
Representation:	Counsel: Dr S C Thornton (plaintiff) Mr J Ryan (defendant)   Solicitors: Tiernan Lawyers (plaintiff) Vardanega Roberts Solicitors (defendant)
File Number(s):	2017/130514
Publication restriction:	None

Judgment

A. Introduction

1. Warren Fitzgerald sustained a serious leg injury when he collided with a parked vehicle when riding his motorcycle. He says the collision was caused by a gold Camry motor vehicle which failed to give way at a preceding intersection. The Camry was not located and Mr Fitzgerald sues the Nominal Defendant for personal injury damages.

B. Issues

2. The Nominal Defendant accepts that if a gold Camry or other motor vehicle failed to give way at the intersection, as Mr Fitzgerald asserts, then Mr Fitzgerald is entitled to damages. But it denies that any motor vehicle appeared at the intersection, or caused the collision.

3. The Nominal Defendant asserts that Mr Fitzgerald was intoxicated by alcohol, which caused him to collide with the parked vehicle. Mr Fitzgerald denies that he was intoxicated, but conceded that a small reduction in damages for contributory negligence should apply if a finding that his blood alcohol concentration was as asserted by the Nominal Defendant. This concession was amended to confine the contributory negligence finding to circumstances where Mr Fitzgerald's blood alcohol level was a cause of the collision.

4. Certain aspects of damages are also disputed.

5. Thus, the issues in the proceedings are:

1. Was there a gold Camry or other vehicle which failed to give way to Mr Fitzgerald immediately before the collision.

2. Did Mr Fitzgerald have a blood alcohol concentration of at least 0.072%.

3. If Mr Fitzgerald’s blood alcohol concentration was at least 0.072%, was that a cause of the collision, and if so, what level of contributory negligence should be found.

4. Should Mr Fitzgerald be awarded damages for family therapy, general practitioner visits, alcohol/drug counselling, and psychiatric consultations, each on an almost monthly basis for the next five to ten years, and psychological consultations on a twice monthly basis, and a PTSD program.

5. Was Mr Fitzgerald unable to work as a result of the accident for the past 12 months, and will this disability continue for the remainder of his working life.

6. Does Mr Fitzgerald require domestic assistance in addition to external home maintenance for the residue of his life, and how much assistance.

7. What is the appropriate amount for damages.

C. Background

6. On 28 February 2015 Mr Fitzgerald was employed as a truck driver. He left work that Saturday a little after 1pm and met a friend for lunch at a hotel on the way home from work. After about three and a half hours, Mr Fitzgerald left for home. He travelled along Braidwood Drive in Prestons.

7. Mr Fitzgerald was found to have collided with a car parked on Braidwood Drive in front of the fourth house from the corner, [1] or about 50 metres north, of the Wagga Wagga Street intersection. Mr Fitzgerald’s left leg was severely damaged. He was transported by an ambulance to Liverpool Hospital and remained in an induced coma for five days. He stayed in hospital for about five weeks.

   1. Exhibit J.

8. Although Mr Fitzgerald’s left leg was severely scarred and he lacks full control of his left ankle, he returned to work about five months after the accident, and remained in his former role as a truck driver for about 18 months until January 2017. He worked for another company as a truck driver from January until May 2017. Since May 2017, Mr Fitzgerald has done some casual truck driving work for a friend.

D. The existence of the gold Camry

(a) The witnesses

9. Five witnesses were called by the plaintiff in respect of the accident. Mr Fitzgerald was the only witness of the accident itself.

10. Mr Fitzgerald says that as he was travelling along Braidwood Drive, he saw ahead to his left a gold Camry motor vehicle proceeding slowly from Wagga Wagga Street into the intersection with Braidwood Drive. He said that the gold Camry proceeded into the intersection without giving way to him, that he was forced to veer to the left behind the gold Camry to avoid a collision, that he travelled a metre into Wagga Wagga Street, and when he turned back to the right to continue along Braidwood Drive, his front wheel struck the curb and his bike commenced to wobble.

11. Mr Fitzgerald's recollection of events after his motorbike commenced to "death wobble", a term he accepted, is limited. He recalls asking for his bag so that he could use his phone to ring his wife, and he recalls asking people around him if they saw a gold Camry, and telling his wife of a gold Camry.

12. Mr Fitzgerald was challenged about his recollection of the incident, that his belief about the gold Camry was derived from what others had told him, but he denied this. He accepted that his memory was limited:

“Q. Are you basing that on what somebody has told you or what you believe is your memory of the accident?

A. It's - I believe that’s what happened.

Q. But did you tell Dr Powell that that belief is based on the information provided to you?

A. No.

Q. But it is the truth, isn't it, that even to this day, you have a limited memory of what happened to you on 28 February 2015, don't you?

A. That’s correct, yeah.” [2]

2. T80/32-42.

13. Mr Fitzgerald denied he was mistaken about the gold Camry:

“Q. Could it be the case, Mr Fitzgerald, that given your memory problems that we've discussed, could it be the case that you're mistaken about the gold Camry?

A. No.” [3]

3. T100/41-44.

14. Cathryn Fitzgerald, Mr Fitzgerald's wife, is a National Administrative Manager for an export company. One of her tasks is to ensure that shipping documents are in order. She gave evidence that she received two telephone calls from her husband on the afternoon of the accident, after the collision. She did not immediately realise the seriousness of his injuries. She said that in both of the phone calls he had complained that a car had pulled out in front of him, but had made no mention to her of a gold Camry.

15. Mrs Fitzgerald also testified that she attended the hospital five days after the accident. On the journey there, she was informed that Mr Fitzgerald had emerged from the induced coma. She said that during her visit, Mr Fitzgerald told her that a gold Camry had pulled out in front of him.

16. Mrs Fitzgerald was challenged about her memory of what she had said to the police officer at the scene, and denied saying that her husband fell off his bike. She adhered to her evidence that although in the phone calls Mr Fitzgerald mentioned a car pulling out, she could not recall him specifying the colour or model, and said that she first learnt of the gold Camry at the hospital when her husband awoke from his coma.

17. Mrs Fitzgerald was also challenged on whether she had read the statements of the other witnesses, either herself or to her husband, or discussed the accident with other witnesses. She denied doing so, although subsequently conceded that she was not certain that she had not read to her husband the statement of her friend, Gillian Brabender. Mr Fitzgerald gave evidence that his wife had read to him her statement, Ms Brabender's and Mr and Mrs Alama's statements.

18. Mrs Fitzgerald was not challenged on her evidence that Mr Fitzgerald had called her twice as he lay on the road and as to the contents of those calls. On the contrary, the Nominal Defendant sought to confirm that evidence. Gillian Brabender is a close friend of Mr and Mrs Fitzgerald. She lived close to the accident location. Mrs Fitzgerald called her immediately after she had been called by her husband and asked Ms Brabender to attend the accident, which she did. Ms Brabender said that at the accident site, she found Mr Fitzgerald being attended to. She said Mr Fitzgerald was screaming about being cut off by a gold Camry. She testified:

“Q. What did he say in particular? Can you remember anything that he said in particular about the accident?

A. Yes. I can. He was yelling at me and my son about how he’d come up over the hill and a car had come out.

Q. From?

A. From Wagga Wagga Street, had not stopped. He had to swerve to avoid that car and had come down the hill and crashed into that parked car.

Q. He said a car came out of Wagga Wagga?

A. Yes.

Q. Did he describe the car, make, model, colour or not?

A. He did. He said it was a gold Camry.” [4]

4. T142/50-T143/13.

19. Ms Brabender said Mr Fitzgerald repeatedly yelled out about the gold Camry to her, to her son and to the ambulance. She conceded that she did not mention the car to police, but denied that her memory was mistaken:

“Q. Mrs Braybender, perhaps your memory is a little bit mistaken about what happened at the scene. What do you say to that?

A. I don't think so, no.

Q. Could you be mistaken perhaps Mr Fitzgerald didn't mention anything about a gold coloured vehicle at the scene, and your memory might be a little bit - I might be a bit forgetful about what happened.

A. I am - I am sometimes forgetful. But that event I'll probably never forget.” [5]

5. T203/36-43.

20. It was suggested to her that she wanted to assist Mr and Mrs Fitzgerald. She denied this saying, "No, I want to tell the truth, I want - I know what happened because I was there." [6]

    6. T201/46-47.

21. An undated statement of Ms Brabender was tendered, and was largely consistent with her evidence.

22. Gabriel and Catherine Alama lived across the road from where Mr Fitzgerald collided with the parked vehicle. Mr Alama heard a bang, went to his garage, and then outside to investigate. He saw Mr Fitzgerald on the roadway and called his wife. Mrs Alama is a trained nurse, although they had only recently emigrated from the United Kingdom, and she was not then fully certified to serve as a registered nurse in Australia.

23. Mr and Mrs Alama attended to Mr Fitzgerald. Mrs Alama utilised Mr Fitzgerald's belt to apply a tourniquet to stop the profuse bleeding from his left leg, while Mr Alama held up a blanket to shield Mr Fitzgerald from the hot February afternoon sun.

24. Mrs Alama gave evidence that Mr Fitzgerald was writhing around and “he was saying, ‘Did anyone see that car that pulled out in front of me and I had to swerve to avoid it?’…he was certainly very, very conscious and very aware of making - making himself heard about the car.” [7] Mrs Alama did not "recall any discussions about a make or a model or anything like that". [8]

    7. T160/22-27.

    8. T165/47-48.

25. Three statements of Mrs Alama were in evidence. The first, dated 28 July 2015, made no mention of Mr Fitzgerald screaming, or anything he said other than his name, although it recorded that Mr Fitzgerald was in a lot of pain and was moving extensively on the ground.

26. The second statement of Mrs Alama was dated 3 May 2016 and stated that Mr Fitzgerald said, "[D]id anybody see the car that came out of that road and made me swerve" and pointed to Wagga Wagga Street.

27. The third statement repeated this statement with some expletives.

28. Mr Alama gave evidence that Mr Fitzgerald was screaming, "Did anyone see that vehicle? Did anyone see that--" [9]

    9. T173/1.

29. Two statements of Mr Alama were tendered. The first, referred to Mr Fitzgerald screaming but made no mention of what he said. The second, dated 23 August 2017, referred to Mr Fitzgerald repeatedly screaming about the car that pulled out that caused him to swerve, lose control, and crash.

30. Mrs Alama was not challenged on the evidence that Mr Fitzgerald had asked, "Did anyone see that car that pulled out in front of me and I had to swerve to avoid it?" [10] But she did not recall him mentioning the colour or model of the car at the scene. In cross‑examination, it was suggested that someone may have suggested it to her:

“Q. Yes. But somebody since that time has suggested to you that he may have said something different, haven’t they? Did somebody suggest to you that he may have described the colour and the make of the car at the scene?

A. At some stage yes.” [11]

“Q. Yes. But you were asked to expand upon what Mr Fitzgerald said?

A. My statement here says, ‘I wish to expand on paragraph 14’.

Q. Yes. And you did that because you were asked to do so by a solicitor?

A. Yeah.” [12]

10. T160/22.

11. T165/19-22.

12. T168/8-12.

31. Mr Alama was challenged on his evidence on the basis that he made no mention of Mr Fitzgerald yelling about a car in his first statement. The reason for his inclusion in his second statement was because somebody had suggested it to him after he made his first statement. Mr Alama initially denied that anyone had suggested this to him, and said that the second statement simply expanded on the events of his first statement:

“Q. Well, Mr Alama, that statement which is now exhibit 3, says nothing at all about Mr Fitzgerald yelling anything about a car cutting out in front of him, does it?

A. No.

Q. No. You see, that statement which is exhibit 3, as you've acknowledged is the whole truth of what you saw and heard, that sometime after you sent that statement, somebody contacted you about the statement, didn't they?

A. Possibility, yes. That's this one; to expand on the event.

Q. That's what led you to make the second statement?

A. Yes.

Q. Somebody suggested to you, didn't they, that Mr Fitzgerald was yelling out about a car at the scene?

A. No. No one suggested it, that's actually what took place.

Q. Yet--

A. I just didn't mention it; if it's filed here in the first statement; it was expanded in the next one because there are other things that actually did take place that weren’t mentioned.” [13]

13. T185/19-39.

“Q. In September 2015 and May 2016, you said nothing about Mr Fitzgerald yelling out about a car that pulled in front of him, did you?

A. No. As I said I expanded on the experience of what actually - the events that took place in my second statement that obviously I hadn’t included in the first one.

Q. Yes. But that was after you were asked to do so by a solicitor?

A. Correct.

Q. And the solicitor - is it the case, said something along the lines to you, wasn’t it the case that Warren was yelling out about a car that pulled out in front of him. That topic was suggested to you, wasn’t it?

A. It wasn’t suggested; it happened.

Q. But you made no mention of it in your first statement?

A. Well, because I never - as I said I don't really expand on the incident until I was given an opportunity of what else I could remember, and that's exactly what happened.

Q. But it was suggested to you, wasn’t it, in the telephone conversation, that that's what happened. That's true, isn't it, Mr Alama?

A. Well, that's what happened, yes.

Q. Yes, but I'm asking you about the telephone conversation. It was suggested to you in the telephone conversation, wasn’t it, that Mr Fitzgerald said something at the scene about a car pulling out in front of him?

A. Yes it was.

…

WITNESS: Well, yeah, I'm unsure about - because as I said, it wasn’t suggested, I mentioned it, as did my wife, possibility; and I said why she would've suggested to me when I - I knew what took place because I was there.

Q. Sometime after May 2016, you received a telephone call from a solicitor.

A. Right.

Q. After you'd signed a statement giving your account of events. That's right, isn't it?

A. Yeah; as I say, I can't remember the entire details, but when I gave was exactly what--

Q. Yes. And you were asked to add something more to it, weren’t you?

A. Possibility, yeah. Asked to give a second statement to expand on the experience, so I did.

Q. But your attention was directed specifically to something that Mr Fitzgerald may have said at the scene. That was discussed in the conversation with this solicitor, wasn’t it?

A. I can't remember whether that was discussed or not, but I do know that when I gave my statement, it's exactly what happened.

Q. Do you mean by that your statement, do you mean your first statement or your second statement, or both?

A. Second statement, when I expanded on the first one, because I didn't mention that, because I wasn’t - I didn't think to have that - well, expand on it.

Q. Yes. And it was only when somebody reminded you of that particular topic, that it occurred to you, and they asked you to put it in the statement, didn't they?

A. Well, yes.” [14]

14. T186/14-T187/29.

32. At the conclusion of the cross‑examination, Mr Alama gave the following evidence:

“Q. The solicitor that you had the conversation with on the telephone, do you believe it was the same solicitor you met with at the scene?

A. That’s correct.

Q. In September 2015?

A. Yes.

Q. She introduced herself with that name and on the telephone in August 2017 it’s the case, isn’t it, that she suggested to you that the plaintiff, Mr Fitzgerald, may have said something about a car at the scene? That’s right, isn’t it?

A. Yes. She—

Q. Thank you.” [15]

15. T189/12-25.

33. Precisely what Mr Alama was agreeing with and what he was going to add before the questioning ended was not the subject of further questions.

34. There was nothing in the demeanour of the witnesses that caused me at all to doubt their accounts. Each of the witnesses was careful to answer the questions asked. It was not suggested that any were lying or untruthful, although Mr Fitzgerald was asked, "It's not a bad story is it, Mr Fitzgerald, about the gold Camry" to which he responded, "It is what it is". [16] Mr Fitzgerald, in particular, made a number of concessions.

    16. T92/35-36.

35. I find that these five witnesses, and indeed all the witnesses before me, were giving their honest recollections of the events.

36. The Nominal Defendant called one witness that attended the accident scene. Carolina Navarrete Hernandez had parked her vehicle on Braidwood Drive whilst she attended an appointment for treatment on her eyelashes. She heard a "big bang". The beauty therapist went to investigate and returned to ask if the white car on the road was hers. Ms Hernandez then went to investigate. She saw Mr Fitzgerald on the road and noticed blood on her car and that her rear driver's side tyre was flat, and there was some damage to her rear bumper. [17] She gave evidence that Mr Fitzgerald was screaming, calling for his partner, swearing and, "arresting the paramedics". [18]

    17. T219-220.

    18. T220/30-32.

37. Constable (now Senior Constable) Grace Beasant gave evidence that she attended the scene. Her statement, made some seven months after the accident, and some handwritten answers created on the day of her evidence constituted her evidence‑in‑chief. She was cross‑examined by telephone. She gave no evidence of anything Mr Fitzgerald said. She said that he was being loaded into the ambulance as she arrived and she did not believe that he was then conscious.

33. Officer Beasant did not interview Mr and Ms Alama or Ms Brabender, but she recorded that Mrs Fitzgerald had said that Mr Fitzgerald had fallen off his bike, a matter Mrs Fitzgerald denied.

34. The evidence of Mrs Fitzgerald, Mr and Ms Alama and Ms Brabender is admissible to prove not just what Mr Fitzgerald said, but also what occurred. Not just because it was a previous representation of a witness that had given evidence,[19] but also because it was a contemporaneous statement of his knowledge and state of mind. [20]

    19. Evidence Act 1995, s 64(3).

    20. Evidence Act 1995, s 66A.

35. On its own, the evidence of the witnesses was sufficient to satisfy me on the balance of probabilities that a car had emerged from Wagga Wagga Street causing Mr Fitzgerald to swerve. But contrary matters were raised by the Nominal Defendant.

(b) The defendant's argument

41. The Nominal Defendant relied on a number of matters to submit that I should not accept that a gold Camry, or any car, emerged from Wagga Wagga Street and caused the accident.

42. First, the police officer did not record any statement by Mr Fitzgerald of the gold Camry, whereas Ms Brabender said he continued to scream about it until taken away by the ambulance.

43. I do not accept that this part of the testimony of Ms Brabender should be taken literally. By the time Mr Fitzgerald had departed, he was sedated. The police officer believed he was unconscious. Officer Beasant had arrived sometime after the accident, not long before the ambulance departed. Her inability to recall any complaints of another car by Mr Fitzgerald could be due to a lapse of time between the accident and her statement, but more likely resulted from no complaint being made in her presence. As she arrived when Mr Fitzgerald was no longer on the road but was being loaded into an ambulance, her evidence of not hearing reference to another car is not materially inconsistent with the other witnesses.

44. Secondly, Officer Beasant's statement recorded that Mrs Fitzgerald had told Officer Beasant that Mr Fitzgerald had fallen off his bike. The statement records that Mrs Fitzgerald also provided other details, although the nature of those details is not identified. It appears likely that Mrs Fitzgerald said more than what is recorded in Officer Beasant's statement because of the reference to the details, because of the brevity of the one line conversation recorded in the statement, and because the statement was created seven months after the attendance by Officer Beasant at the scene and there was no evidence that her conversation with Mrs Fitzgerald was recorded in a notebook. Notwithstanding these matters, I think the brief note of the statement indicates that probably Mrs Fitzgerald did not mention the other car.

45. However, the significance of Mrs Fitzgerald not mentioning the other car is limited. She did not see it and she gave no evidence of Mr Fitzgerald mentioning it to her at the accident scene. Mr Fitzgerald, on her recollection, did not mention the gold Camry in the telephone calls, only another car. There was no evidence that Mrs Fitzgerald had told Officer Beasant about the two phone calls she had received or what her husband had told her in those phone calls. That would suggest that she did not mention in clear terms that Mr Fitzgerald had told her of another car.

46. From Mrs Fitzgerald’s position, her husband was in a very serious, perhaps life-threatening, condition in an ambulance travelling to hospital. The information imparted in her husband's initial telephone calls, which were not her observations, was likely to have been given to her in somewhat truncated terms by Mr Fitzgerald, and was unlikely to have been the most critical matter occupying Mrs Fitzgerald’s attention. I do not think Mrs Fitzgerald’s failure to mention the contents of the earlier phone calls to the police officer is significant.

47. Further, Mrs Fitzgerald was not challenged on the content of the telephone conversations. Her recollection appears to have been aided by telephone records. [21] Had she been challenged, some more evidence about those telephone records and the duration of the calls might have been elicited or she may have been able to give other evidence to support her account. In circumstances where she was not cross‑examined about the content of her telephone calls, I do not regard the police statement as indicating the contrary. If the existence and content of those phone calls were not challenged, it is of no real significance that she did not mention them at the scene to Officer Beasant.

    21. T120/11-17.

48. The Nominal Defendant did not submit that Mr Fitzgerald was lying to his wife about the cause of the collision as he lay on the roadside in a critical condition.

49. Mrs Fitzgerald filled out the motor accidents claim form a few days after Mr Fitzgerald had awoken from his coma. She referred to an unknown vehicle and how it came from Wagga Wagga Street. Whilst this was consistent with her account, she also gave evidence that a few days prior, when Mr Fitzgerald emerged from the coma, he told her of the gold Camry, yet she did not insert any details of the make and model in that section of the claim form.

50. Mrs Fitzgerald said that she had sought instructions from the bike’s insurer about how to complete the claim form in respect of the unidentified vehicle and followed those instructions. It might be unsurprising that she did not insert details of the make and colour of the vehicle, which were not personally known to her, although she might be expected to have checked with Mr Fitzgerald since it was his claim and he had told her of the gold Camry. But Mr Fitzgerald had just experienced free flap surgery [22] to attempt to repair a large piece of skin and flesh torn away from his leg and may have been in no condition to give those instructions.

    22. T124/38.

51. Mrs Fitzgerald is an office manager with long experience in completing forms. Yet there are a number of odd features about the details she included in the claim form - the misspelling of "unknown" and the street name, and the misreporting of her phone number, and the bike's registration. These matters might suggest that the form was not filled out in a quiet, reflective time, but perhaps when she was under some stress and her concerns were with her husband's condition. She said, "[A]t that stage we didn’t know whether his leg was going to be amputated or not”. [23]

    23. T127/33.

52. In my view, the claim form tends to support the account given by Mr Fitzgerald in evidence and the truth of his comments immediately after the accident to Mr and Mrs Alama and to Ms Brabender, and by phone to his wife.

53. The Nominal Defendant referred also to the ambulance report which made no reference to another car and referred to bystanders speaking of Mr Fitzgerald falling off the motorcycle "at speed". There was no evidence of an eyewitness apart from Mr Fitzgerald and it was not suggested to him that he was travelling at speed. The caution that is required[24] in relation to the use of medical notes is emphasised in this case where the notes in different places indicate a collision between a bike and a bus, [25] a collision between a bike and a truck, [26] and a bike being hit by a car, [27] all of which are incorrect.

    24. Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], Mason v Demasi [2009] NSWCA 227 at [2].

    25. Exhibit 1, p 20.

    26. Exhibit 1, pp 22, 25.

    27. Exhibit 1, p 27.

54. Reference was also made to the record made by an apparent social worker on 10 March 2015. The submission based on this entry appeared to be that Mr Fitzgerald made no reference to the gold Camry or another vehicle, so it did not occur. Yet the terms of the record indicated not that Mr Fitzgerald could not disclose more but "would" not. Whether it was too painful for him to discuss the matter with an unknown social worker, or there was some other reason for his apparent reticence, was not explored. Mr Fitzgerald was not asked about this in cross‑examination.

55. Perhaps the strongest point made by the Nominal Defendant was that Dr Richard Powell, an orthopaedic surgeon, recorded the following after a meeting with Mr Fitzgerald on 16 June 2016:

“Mr Fitzgerald was involved in a motorbike accident on 28 February 2015. He had finished work in his role as a truck driver with C J Haulage and was on his way home from work after stopping off at the pub for a drink. He was riding a motorbike. He had limited recollection of the incident though informed me that based on the information provided to him a car had pulled out in front of him from the kerb on his left-hand side. He swerved to avoid the car, hit the kerb, lost control and ran into a parked car at approximately 50km/h.” [28]

28. Exhibit 1, p 34.

56. This statement must be read with the caution that attends histories recorded in medical notes and reports as indicated above. Mr Fitzgerald denied telling Dr Powell that the car coming from his left‑hand side was a belief based on information provided by others. [29] It can be observed that the paragraph quoted above is consistent with information being provided to Mr Fitzgerald about the car pulling out from the left, Mr Fitzgerald swerving, hitting the kerb, losing control and hitting a parked car at a speed of 50 kilometres an hour. It was not disputed that Mr Fitzgerald had no recollection of the last two, perhaps the last three, items. There is some degree of ambiguity in the note as to which of the items mentioned was “information provided to him”.

    29. T80/26-38.

57. I am not persuaded that Mr Fitzgerald has no recollection of the car pulling out from Wagga Wagga Street. He was straightforward in his answers. He made appropriate concessions about matters and I accept his evidence of his recollection. Whilst his recollection was affected by the collision and the subsequent coma and might not be reliable in relation to the colour and make of the car, the evidence persuades me that another car did appear from Wagga Wagga Street, failed to give way, causing him to swerve and that he then hit the gutter and ultimately collided with Ms Hernandez's car.

58. The Nominal Defendant also referred to a meeting in September 2015 between Mr and Mrs Alama, Mr and Mrs Fitzgerald, Ms Brabender and her son, Mr Fitzgerald's solicitor and a traffic expert when Mr Fitzgerald said he told them about the gold Camry; [30] that Mr Fitzgerald "had a discussion" with Mr and Mrs Alama about "what happened" and:

“Q…Did other people say in this conversation what they saw on the day of the accident?

A. Yes. Everyone was putting their 20 cents worth in, yes.” [31]

30. T89/49.

31. T90/32-34.

59. The Nominal Defendant referred to the decision of Day v Perisher Blue Pty Ltd,[32] where Sheller JA stated at [30]:

“It has long been regarded as proper practice for legal practitioners to take proofs of evidence from lay witnesses separately and to encourage such witnesses not to discuss their evidence with others and particularly not with other potential witnesses. For various reasons, witnesses do not always abide by those instructions and their credibility suffers accordingly. In the present case, it is hard to see that the intention of the teleconference with witnesses discussing amongst themselves the evidence that they would give was for any reason other than to ensure, so far as possible, that in giving evidence the defendant’s witnesses would all speak with one voice about the events that occurred. Thus, the evidence of one about a particular matter which was in fact true might be overborne by what that witness heard several others say which, as it happened, was not true. This seriously undermines the process by which evidence is taken. What was done was improper. The process adopted was more concerned with ensuring that all the witnesses gave evidence which would best serve their employer’s case. This realisation makes particularly sinister the precept in the Witness Protocols for Court Cases and Arbitration Hearings, ‘Not about facts about credibility’.”

32. (2005) 62 NSWLR 731; [2005] NSWCA 110.

60. There can be little doubt that evidence can be contaminated by discussions between witnesses of what occurred. However, only Mr Fitzgerald was a witness to what occurred, prior to him ending up injured on the road. No other witness gave evidence about that. And his recollection of what happened at the roadside is limited. If he gave an account of the gold Camry at the meeting, it did not alter the limited evidence of the events before the collision.

61. Mr Fitzgerald's comment that everyone was "putting their 20 cents worth in" was followed by "Everyone was froing and toing, you know, like… Yeah. This is what happened, that’s what happened, yeah". [33]

    33. T91/1-4.

62. The evidence did not deal with specifics. As noted, Mr Fitzgerald's evidence of what happened affected no other account of the events preceding the collision because there was no other account.

63. Further, Mrs Fitzgerald gave no account of being told at the scene of the gold Camry or of any car pulling out. Her recollection is limited to what she was told on the phone about a car pulling out and a mention of the gold Camry at the hospital. Mr Fitzgerald gave evidence that he told his wife of the gold Camry at the scene, [34] and that he could not recall what he said when he emerged from the coma at the hospital. If the discussion was to have the effect of producing a consistent story, it was ineffective as the recollections of Mr and Mrs Fitzgerald remained different. And the absence of any evidence from Mrs Fitzgerald of discussions at the accident scene of a gold Camry or any car pulling out may be explained by the late arrival of Mrs Fitzgerald at the scene.

    34. T86/14-30.

64. Perhaps the biggest concern was the possibility of contamination between Mr and Mrs Alama and Ms Brabender discussing what was said by Mr Fitzgerald as he lay on the roadway. But all three of these witnesses - Mr and Mrs Alama and Ms Brabender - denied any group discussion when they attended in September 2015.

65. Mrs Alama said they were advised not to speak with each other about it, and that any discussions were separate. She accepted that "at some stage" somebody suggested that Mr Fitzgerald "may have described the colour and make of the car", [35] but Mrs Alama's statements in evidence consistently never referred to a gold Camry. Although I accept Mr Fitzgerald's honesty, I would prefer Mrs Fitzgerald's recollection of what was said in the phone calls, and Mr and Mrs Alama's recollections of the words used at the roadway, in part because Mr Fitzgerald's condition was grave at that point, as he had just had the collision, and was lying severely injured on the road way. However, I doubt if any recollection of words by any witness is completely accurate. [36]

    35. T165/19-22.

    36. Cf Watson v Foxman (1995) 49 NSWLR 315 at 318-319.

66. The Nominal Defendant referred to Ms Brabender's son, Richard Prothera, not having been called. His statement was tendered, only to prove his belief, not the truth of its contents, to rebut any adverse inference about him not being called as a witness.

67. The statement included reference to a gold Camry being referred to by Mr Fitzgerald. Perhaps he was not called because other correspondence showed that Mr Fitzgerald's solicitors had specifically asked him whether he remembered if Mr Fitzgerald had "mentioned anything about a gold Camry". Even without a full explanation of Mr Prothera's absence, I would not be inclined to draw a Jones v Dunkel inference. But his absence means that his evidence was not available to assist Mr Fitzgerald.

68. The Nominal Defendant also referred to the bus driver not being called. There is no obligation on Mr Fitzgerald to call every possible witness, even those who might be thought to be in his camp. Nor was there evidence to suggest a connection between Mr Fitzgerald and the bus driver. The bus driver was a witness who could just as readily have been called by the Nominal Defendant.

69. Bearing all these matters in mind, I am not persuaded that there was any group discussion in September 2015 about what Mr Fitzgerald said as he lay on the roadway months earlier. Nor did the Nominal Defendant suggest, in clear terms, to any witness, that there was any deliberate effort to agree on the evidence to be given. The matter was left on the basis that because of discussions about the matter, all the evidence has become corrupted or contaminated.

70. Given the different parts of the events described by the witnesses (the preceding events by Mr Fitzgerald; the screaming at the scene by Ms Brabender and Mr and Mrs Alama; the phone calls by Mrs Fitzgerald, and differently by Mr Fitzgerald; the words which Mr Fitzgerald spoke when he woke from the coma by Mrs Fitzgerald and Ms Brabender, but not by Mr Fitzgerald), the difference in accounts (only Mr Fitzgerald and Ms Brabender gave evidence of a reference to a gold Camry before the hospital visit), the lack of any particular interest by Mr and Mrs Alama, and the seeming honesty and conviction of the witnesses, I was persuaded by the evidence that Mr Fitzgerald did see, and speak immediately after his collision of, a car which came out of Wagga Wagga Street, which caused him to swerve.

71. The Nominal Defendant accepted that if such a finding was made, Mr Fitzgerald should succeed on liability. The evidence has thus established on the balance of probabilities that Mr Fitzgerald was injured as a result of an unidentified vehicle pulling out of Wagga Wagga Street, causing him to swerve, hit the kerb and collide with the rear of a parked car.

E. Blood alcohol concentration

72. The Nominal Defendant sought to establish that Mr Fitzgerald was affected by alcohol at the time of the accident. Mr Fitzgerald gave evidence that during the long three and a half hour lunch, from about 1.15pm to 4.45pm, he consumed three schooners of full strength beer, of which he paid for two. [37] It was not suggested that three schooners over three and a half hours would put Mr Fitzgerald over the legal limit.

    37. T26/17; T82-83.

73. The evidence of the amount of alcohol in Mr Fitzgerald's blood comprised two documents. The Intensive Care Unit Trauma Registry Data Form [38] recorded "32.4", which Sally Forrest Horder, a nurse and trauma case manager at Liverpool Hospital, said referred to "millimoles" of alcohol. As millimoles is a number, it has no particular significance as a ratio of blood alcohol content unless there is a quantity of blood identified, which was never clearly done. [39] Whether it was safe to infer millimoles per litre or millimoles per 100 millilitres was ultimately not required because of other documents relied on by the Nominal Defendant.

    38. Exhibit 5.

    39. See T231/3-4; T232/24-28.

74. The blood testing certificates were in evidence, without objection. One [40] records a sample number which Ms Horder took from Mr Fitzgerald, identified as unnamed with a certain listed birth date estimate (a matter which was linked to Mr Fitzgerald by his hospital file).

    40. Exhibit 8.

75. The second document [41] established that the sample had 0.072 grams of alcohol per 100 millilitres of blood. Whilst the absence of Mr Fitzgerald's name on the two certificates might be relevant to the criminal standard being satisfied, I am comfortably satisfied on the balance of probabilities that the certificates did pertain to the sample of blood taken from Mr Fitzgerald, apparently at 7.09pm on the evening of the accident.

    41. Exhibit 1, p 100.

76. A report of Susan Ruth Jennings of the Police Clinical Forensic Medical Unit was in evidence which, on the presumption that 32.4 millimoles referred to millimoles per litre, recorded that this was equivalent to 0.149 grams of alcohol per 100 millilitres, well over the legal limit of 0.5 grams per 100 millilitres.

77. Ms Jennings noted that the difference between the readings could be explained by the elimination of alcohol from the body over time, by the supply of intravenous blood to Mr Fitzgerald, or by the case of different methods of analysis. She said "Analyses in hospital settings are frequently performed on serum, which can produce a higher result than blood alcohol analysis", [42] and that the analysis on "whole blood", apparently the police analysis, was "highly reliable". Ms Jennings concluded that:

"Due to the lack of information regarding the consumption of alcohol by the rider it is not possible to provide a meaningful opinion regarding the rider's blood alcohol concentration at the time of the collision". [43]

42. Exhibit 1, p 99.

43. Exhibit 1, p 99.

78. Mr Fitzgerald relied upon this conclusion. However, in context, I am satisfied that it did no more than indicate an inability to fully reconcile the two different readings to produce a specific blood alcohol concentration. I am not satisfied that it suggested that the blood alcohol concentration was lower than the certificate showing 0.72 grams per 100 millilitres.

79. Accordingly, I am satisfied on the balance of probabilities that Mr Fitzgerald's blood alcohol content was at least 0.72 grams per 100 millilitres as recorded in the certificate. The Nominal Defendant did not submit that any higher concentration should be found.

80. The Nominal Defendant submitted that this finding should be relevant not only to contributory negligence, but is a matter that impacted upon Mr Fitzgerald's credit generally, and his recollection of the collision. As I understood the submission, it was not that Mr Fitzgerald's blood alcohol concentration of 0.72 grams per 100 millilitres made his recollection unreliable, but rather that he was adamant that he only had three schooners in three and a half hours, which must be false if his prescribed content of alcohol was 0.72 grams per 100 millilitres, so he is not an honest witness.

81. I accept that Mr Fitzgerald did not consume only three schooners in the three and a half hours. Judicial notice might allow me to conclude that the consumption of about three standard drinks, plus one drink per hour, is sufficient to take Mr Fitzgerald over the limit. Perhaps a minimum of about six to seven standard drinks, or four to five schooners in the three and a half hours would need to be consumed. So Mr Fitzgerald's recollection about three schooners was wrong. Does that mean he was dishonest about his recollection of the gold Camry?

82. As the High Court noted in MacKenzie v The Queen,[44] "[P]eople who are (honestly) mistaken can, nevertheless, be extremely confident, and unwilling to admit even the possibility of error".

    44. (1996) 190 CLR 348 at 373.

83. Mr Fitzgerald was confident that he had only consumed three schooners of beer. I think he was mistaken. The number of schooners of beer one might consume in the course of a long lunch does not appear to me to be so memorable an event that one would be expected accurately to recall it later. Even if the insignificant event of the lunch gathered significance by its proximity to the injury, I am not persuaded that I should find Mr Fitzgerald to be lacking in honesty because his evidence about the amount of beers he consumed was wrong.

84. Leaving aside the question of causation, Mr Fitzgerald conceded that if excessive blood alcohol content was found, above the legal limit, that involved contributory negligence. The concession seems well founded and, in any event, relieves me from consideration of the provisions of s 5B of the Civil Liability Act 2002, made relevant by s 5R of the Act.

F. Contributory negligence

85. The remaining issue about contributory negligence involved whether the blood alcohol content was causative. That first requires a consideration of the test of causation.

86. Section 5D of the Civil Liability Act 2002 identifies that negligence must be a necessary condition of the harm, that is, the “but for” test. But for the negligence, the injury would not have occurred. A question arises as to whether this provision is applicable to contributory negligence, in particular because of s 5R of the Act. Section 5R provides:

“5R Standard of contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

…”

87. The Court of Appeal in Nominal Defendant v Rooskov [45] said that it does, namely, that s 5R does pick up the requirements of s 5D. But a differently constituted bench of the Court of Appeal in Verryt v Schoup found otherwise. [46] With great respect to the decision in Rooskov, I prefer the more recent decision which, being a later decision, I would likely be obliged to follow anyway.

    45. [2012] NSWCA 43 at [142]-[144].

    46. [2015] NSWCA 128 at [27].

88. The meaning of negligence commonly involves a breach of a duty of care, but since the cause of action of negligence requires damage to be caused by the breach of duty, it is sometimes the case, principally amongst lawyers, that the term "negligence" includes questions of causation. That construction would favour the Rooskov approach, whereas if causation issues were not included in the meaning of negligence, the Verryt approach would apply.

89. The term "negligence" is defined in s 5 of the Civil Liability Act 2002 to mean "failure to exercise reasonable care and skill". This does not include any issue of causation. Section 7 of the Interpretation Act 1987 provides:

“7 Cognate words

If an Act or instrument defines a word or expression, other parts of speech and grammatical forms of the word or expression have corresponding meanings.”

90. It follows that the grammatical term “negligent” should be given the corresponding meaning to the defined term “negligence”. It refers to a failure to exercise reasonable skill and care. Causation is thus not part of the defined term and the Verryt construction is to be preferred.

91. The heading to s 5R, “Standard of contributory negligence”, might not be helpful as an aid in construction but, in any event, would not favour the alternative Rooskov approach.

92. My conclusion to adopt the Verryt approach does not remove causation as an element in contributory negligence. Rather, it removes a s 5D test of causation. As Verryt at [25] noted, causation is to be determined in accordance with the principles in March v E & M H Stramare Pty Ltd,[47] and in particular, in this case, whether Mr Fitzgerald's injuries were caused or materially contributed to by his excessive consumption of alcohol. A common sense approach to causation is applicable.

    47. (1991) 171 CLR 50; [1991] HCA 12.

93. In deciding this matter, I derived no real assistance from the reference to "intox" written very lightly in different hand, probably not Nurse Horder's hand, on the Trauma Registry Data Form. [48] It might be thought difficult to discern intoxication for a patient who is sedated [49] and perhaps unconscious.

    48. Exhibit 5, cf T234/29.

    49. Exhibit 6.

94. But I think I can take judicial notice that excessive consumption of alcohol impacts adversely on balance and reaction times. Whilst I have no direct evidence of the impact of the alcohol on Mr Fitzgerald's riding, I need to take into account that he was able to swerve around the vehicle, travelling one metre into Wagga Wagga Street, that he caught the kerb on the way back into the Braidwood Drive roadway and then he travelled past three house frontages before he collided with Ms Hernandez's car. The kerb at the Wagga Wagga Street corner is in the shape of an arc of a significant radius.

95. The difficulty faced by the Nominal Defendant is that there was no direct evidence of intoxication, or of the effect on Mr Fitzgerald, or any person, of having a blood alcohol level of 0.72 grams per 100 millilitres. If Mr Fitzgerald was intoxicated, the provision of s 49 of the Civil Liability Act 2002 might have some application, but with the concession by Mr Fitzgerald of contributory negligence, apart from causation, that question does not arise. So the relevant question becomes, can Mr Fitzgerald's blood alcohol level materially contribute to the damages (by, in this case, contributing to the collision) even if he is not proved to be under the influence of alcohol other than by inferences that might arise from the blood alcohol content certificate. Strictly, if he is not influenced by alcohol, then alcohol could not influence his balance and reaction times and therefore did not contribute to the accident. The parties' submissions did not deal with this matter.

96. In Amanda's on the Edge Pty Limited v Drise, [50] it was held that the relevant extent of intoxication varies with the circumstances and that very little alcohol is required for a person's capacity to exercise care and skill to be affected in the driving of a car.

    50. [2011] NSWCA 358.

97. In Wells v Council of the City of Orange (No 2), [51] Hoeben CJ at Common Law held that a blood alcohol reading of 0.059 impaired the motorcycle rider's ability to control the motorcycle, but he was unable to assess the level of impairment.

    51. [2017] NSWSC 510.

98. In Smith v Randall,[52] Applegarth J determined that the extent of a person's capacity to exercise care and skill is dependent on all the circumstances, not merely blood alcohol level. But the concentration of alcohol is an important factor in determining the influence of the alcohol upon the driver in question.

    52. [2016] QSC 191.

99. These cases support the concession made by Mr Fitzgerald that an excessive blood alcohol level is an element of contributory negligence. The blood alcohol level is important in determining the effect of alcohol impairment. Given the nature of the accident, that Mr Fitzgerald was not able to react sufficiently to turn the bike to avoid both the car and the kerb and after striking the kerb was not able to regain balance and control of the bike before colliding with Ms Hernandez's car, in my view, the alcohol did on the balance of probabilities materially contribute to the collision and thus Mr Fitzgerald's injuries.

100. The test for contributory negligence apportionment in s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 – “just and equitable having regard to the claimant’s share in the responsibility for the damage” – is the same as that applicable to contribution between tortfeasors in s 5(2) of the Law Reform (Miscellaneous Provisions) Act 1946. [53] In assessing the level of contributory negligence, one must weigh relative culpability. [54] This involves both the causal potency of the act as well as the gravity of the breach. Although the level of alcohol was at the low‑range, nevertheless, driving with an excessive level of alcohol is illegal and should not be regarded as other than a serious breach of duty. But causal potency is unclear, and as the obligation of proof falls on the Nominal Defendant, I do not think it is appropriate that I find that the alcohol had the causal potency of the car which pulled out from Wagga Wagga Street and caused Mr Fitzgerald to swerve.

     53. See also s 74(1) of the Motor Accidents Act 1988.

     54. Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 at [10], see also Grima v RFI (Aust) Pty Ltd [2014] NSWCA 345 at [41].

101. The Nominal Defendant submits a level of contributory negligence of a third. I think that is too high as the causal potency of Mr Fitzgerald's negligence is unable to be found to be high. Mr Fitzgerald submitted 5 to 10%, [55] a figure which does not seem to me to give sufficient attention to the gravity of riding a motorbike whilst having an excessive level of alcohol. In my view, the appropriate discount for contributory negligence is 20%.

     55. T343/2.

102. Section 74 of the Motor Accidents Act 1988 provides that contributory negligence shall be found in certain cases involving convictions relating to blood alcohol concentration and testing. However, those provisions are not applicable because Mr Fitzgerald was not convicted of an offence.

G. Damages

103. Several heads of damages are agreed. Non‑economic loss was agreed at $150,000, more than the plaintiff initially sought in his damages schedule, but a little less than the amount the defendant proposed. This agreement removes the necessity to discuss and consider in detail all the impact of Mr Fitzgerald's seriously injured and scarred left leg, and the psychological sequelae.

H. Psychiatric and other consultations

104. Mr Fitzgerald developed a mental illness as a result of the accident.

105. Dr Anthony Durell, a psychiatrist retained by the plaintiff in June 2016, diagnosed Mr Fitzgerald with major depressive disorder and post‑traumatic stress disorder.

106. Dr Robert Lewin, retained by the Nominal Defendant in September 2017, found evidence of "enduring irritability and some mild post‑traumatic symptoms of the anxiety” and also “evidence of a Chronic Post Traumatic Stress Disorder now in partial remission and a Major Depressive Episode, also in partial remission". [56]

     56. Exhibit 1, p 50.

107. The partial remission which Dr Lewin diagnosed has occurred without any psychiatric or other counselling. Dr Durell had advised monthly psychiatric, general practitioner, drug and alcohol counselling for five to ten years, monthly family therapy counselling for three to five years, and twice monthly psychological sessions for five to ten years and an inpatient post‑traumatic stress disorder program for two to three weeks. [57] None of this has occurred, apparently due to Mr Fitzgerald's reluctance to have counselling. Mr Fitzgerald gave no evidence of any reason why no counselling had occurred, apart from an apparent general reluctance. In cross‑examination it was put to him that if some funds were set aside for counselling would he have it, and Mr Fitzgerald agreed.

     57. Exhibit A, pp 176-177.

108. It seems to me that Dr Lewin's evidence is the only reasonably current evidence of Mr Fitzgerald's need for counselling, and in respect of counselling I must bear in mind that an award is only appropriate if the treatment is to be undertaken. The past conduct of Mr Fitzgerald indicates that anything more than a limited level of counselling would be unlikely.

109. Dr Lewin stated:

“Mr Fitzgerald was advised by his general practitioner to undertake mental health treatment. Mr Fitzgerald reported that he had put this advice to one side. It was only after repeated encouragement from his wife that he agreed to take antidepressant medication. He had not accepted advice to undertake psychological care. He said that his general practitioner had explained the reasons for this but he decided not to proceed. I agree with Dr Durrell that there are unmet mental health treatment needs. Treatment provided so far has been confined to the use of antidepressant medication. This was both reasonable and necessary, because that treatment is consistent with published clinical data and treatment guidelines. It would be appropriate for Mr Fitzgerald to undertake further treatment. However, he repeatedly said that he is unwilling to undertake this. In my opinion, in these circumstances, a limited program of intervention designed to improve functioning and to persisting with problem-solving tasks is indicated. Mr Fitzgerald should be referred to a consultant psychiatrist. Between 12 and 18 outpatient treatment sessions are indicated. The bulk of the treatment would be provided within the first three months and treatment would be undertaken over a twelve-month period in total. An allowance for antidepressant medication costing between $60 and $120 per month is indicated for a twelve-month period. Mr Fitzgerald presented as a gentleman who was not psychologically minded. I think it is doubtful that he would benefit from a more intensive treatment program based upon psychotherapy. He does not appear to be a person who reflects upon his own inner experience. For example, I noted that he maintained even in the face of recent discussion that the problems identified in regard to interpersonal relationships and irritability in the workplace were problems independent of his own thoughts, feelings and functioning. He considered that there may have been some relationship problems, only when pressed. I think it most unlikely that he would engage in a program of psychotherapy which requires a number of things. Capacity to reflect upon inner experience the capacity to tolerate considerable distress and integrate this without emotional decompensation and the capacity to sustain a therapeutic relationship over a prolonged period of time are some of the reasons for this. In my own clinical experience, I would not be recommending the intensive program of treatment described by my colleague.” [58]

58. Exhibit 1, pp 50-51.

110. I accept the more current evidence of Dr Lewin and the proposed treatment that aligns with Mr Fitzgerald's reluctance to have counselling and the current status of his condition. Thus, $5,700 for future counselling and treatment for a 12-month period should be allowed. I would, however, allow an additional $5,000 as a buffer in circumstances where Mr Fitzgerald's reluctance changes as a result of some successful counselling, bearing in mind the other more extensive programs once recommended by Dr Durell.

I. Employment capacity

111. As noted earlier, Mr Fitzgerald has not worked full‑time for about 12 months. However, after a five-month period of recovery, including Mr Fitzgerald's hospitalisation, he worked for about two years, including the last 18 months, in a full‑time permanent capacity.

112. In January 2017 Mr Fitzgerald lost the job he had held for many years due to an argument at work. Yet he found a new truck driving position that evening and commenced in the new position without a day off work. In the new position, for four months, he worked long hours with substantial overtime. Again, an argument ended this employment. There was no suggestion that his physical restriction impacted on his ability to perform in a truck driving role.

113. While it is possible that Mr Fitzgerald's arguments that ended his employment resulted at least in part from his accident-impaired mental condition rather than the circumstances he then faced, there might be an expectation that with the counselling Mr Fitzgerald in cross‑examination accepted he would undertake, that this problem might be overcome. Mr Fitzgerald's ability to get a new job immediately and in more recent times to continue to work on a casual basis indicates that he has an ability to find work in the industry and remain employed. Mr Fitzgerald accepted that he has a licence to and can drive road trains. He suggested that the reason he could not do full‑time work was:

"[N]obody wants to put anyone on with a leg like mine, looking my mine, you know. It's a safety issue, really. I've got to go there and show them and nobody wants to put anyone on they can't do the – the job like anybody else." [59]

59. T41/42-44.

114. But Mr Fitzgerald did not find his original employer, CJ Haulage, his subsequent employer, Wire Civil, or even his current employer, Mr Ainscoe, to be inclined to deny him employment because of his left leg injuries. He continues to look for work. He has shown that he can hold jobs for a substantial time and do the work, for which he is to be commended. The evidence of what he has done in the relatively recent past is more probative than the opinion of Dr Durell as to his capacity. His past work record since the accident does not establish a continuing incapacity for employment as a truck driver.

(a) Past economic loss

115. The Nominal Defendant has allowed the 21-week period from the accident until Mr Fitzgerald returned to work, agreed by the parties to be $21,100.

116. Mr Fitzgerald claims a further $250 a week whilst he was working for his old employer, but this was not established by oral evidence, tax returns or payslips. There was no explanation for the lack of evidence for this period. In particular, it was not suggested that Mr Fitzgerald’s earnings when he first returned to work were less than when he returned as a full-time permanent employee.

117. For the past 50 weeks since May 2017, when Mr Fitzgerald ceased work at Wire Civil, Mr Fitzgerald ultimately claimed half of the $1,000 that he formerly earned, namely $500 a week; a total of $25,000. This may be an appropriate difference between Mr Fitzgerald’s present earnings and his earnings on a full-time basis, but it is difficult to conclude that this is entirely due to the accident in circumstances where there was an absence of evidence as to what Mr Fitzgerald is earning. There was evidence that he received cash-in-hand of $300 per day, [60] but as he sought only half of his former earnings, $500 a week, his claim is that he worked at least one to two days a week. That frequency of work finds some support in the evidence. [61] Because of the lack of evidence providing details of Mr Fitzgerald’s earnings and the lack of explanation for this, it seems to me appropriate that I order a conservative amount and I would allow $15,000 for this period.

     60. T71/46-T72/1.

     61. T71/40-44.

115. Thus, the past economic loss of earnings is $36,100 plus lost superannuation at 11%. This equals a total past economic loss of $40,071.

(b) Future economic loss

119. Mr Fitzgerald claims a sum of $500 per week going forward for 15 years and a further amount due to early retirement at 62 years of age. Mr Fitzgerald relies on Dr Durell’s report, but, as I have indicated, that report is out of date and more pessimistic about Mr Fitzgerald’s employment prospects than events have shown. It asserts a greater amount than Mr Fitzgerald now claims and takes no account of the matters that have happened in the last two years, including those reported on by Dr Lewin late last year. After reductions for vicissitudes and a deferral factor, the amount ultimately asserted by Mr Fitzgerald calculates at a little over $300,000.

120. The Nominal Defendant asserts that a $100,000 buffer should be awarded.

121. Mr Fitzgerald’s work in the past and his continual casual work reflect both his desire to work and his stoicism, notwithstanding his injuries. I also take into account that the evidence of his earnings from his casual work is less than satisfactory and no explanation was provided. This causes me to again be somewhat conservative in determining the amount of future loss.

122. In my view, a substantial buffer should be awarded. I propose to award the sum of $150,000 together with superannuation at 11%. The buffer is thus $166,500.

J. Domestic assistance

123. Mr Fitzgerald makes no claim for past domestic assistance. Most of the internal domestic tasks prior to his injuries were performed by Mrs Fitzgerald and that has continued after the accident. To the extent that Mr Fitzgerald did occasionally do internal domestic tasks and no longer does them, Mrs Fitzgerald has taken on those tasks. The additional tasks undertaken by Mrs Fitzgerald do not satisfy the six hours per week threshold and the initial period of Mr Fitzgerald’s substantial disability after the accident did not persist for six months.

124. There is no evidence that Mrs Fitzgerald undertaking the internal domestic tasks is likely to change. Mrs Fitzgerald has travelled with work from time to time, but Mr Fitzgerald has managed without any outside commercial assistance. The only circumstance that would seem to produce a change to the current situation, a change where Mrs Fitzgerald no longer provided the necessary internal domestic tasks that for the most part Mr Fitzgerald has largely left for her and to a greater extent, had left for her prior to the accident, is if Mrs Fitzgerald became in some way incapacitated or if marriage problems caused a separation. Although there were some difficulties in the marriage resulting from Mr Fitzgerald’s difficulties in dealing with his injuries, there was no evidence to suggest a separation was a significant prospect, nor was there any evidence to suggest that Mrs Fitzgerald would become unwilling or unable to perform the tasks she currently performs. However, as there is at least a possibility that could occur in the future, I would award a buffer of $10,000 against those two possibilities that might cause Mrs Fitzgerald to no longer be able to do the internal domestic tasks she currently undertakes.

125. Mr Fitzgerald is unable to do some of the external maintenance of his property. Currently it is done by his son and his daughter’s partner. Like the amount for non-economic loss, curiously, the amount sought for external home maintenance asserted by the Nominal Defendant is higher than that sought by the plaintiff. In any event, I accept that the lawn mowing, ground maintenance and related tasks including pool maintenance, which the plaintiff currently manages to do himself but that ability is likely to end earlier than might otherwise have been the case without the accident, is the two hours per week as the Nominal Defendant accepts, even though a lesser number of hours is included in the plaintiff’s schedule.

126. The applicable rates are said to be $55 an hour by the plaintiff and $40 an hour by the defendant. There is evidence of $50 an hour as the lower of three rates and I will allow that. Thus, two hours at $50 an hour times 909.9 (multiplier for life expectancy) deferred for seven years involving a multiplier of .711 less 15% for vicissitudes, calculates to an amount of $54,989.80 for external home maintenance.

K. Other damages

127. The parties have agreed on other amounts as follows:

1. Home modification: $1,044.

2. Foot orthotics and other medical expenses: $2,629.

3. Non-economic loss: $150,000.

4. Past treatment expenses: $1,447.76.

128. So, the amounts of damages awarded for the heads of damage are as follows:

Head of damage	Amount
Non-economic loss	$150,000.00
Past treatment expenses	$1,447.76
Psychiatric and other consultations and medications for the future	$10,700.00
Past economic loss	$40,071.00
Future economic loss	$166,500.00
Domestic assistance internally	$10,000.00
External domestic assistance	$54,989.80
Foot orthotics and other medical expenses	$2,629.00
Home modification	$1,044.00
Subtotal	$437,381.56
Less 20% contributory negligence	$(87,476.31)
Total	$349,905.25

129. It is unclear whether the agreement in relation to past treatment expenses includes an additional specific amount in relation to the Medicare payback and I will give leave to the parties to deal with that at the time of the question of costs.

130. The parties have requested that I reserve costs.

L. Orders

131. Accordingly, the orders shall be:

1. Judgment for the plaintiff in the sum of $349,905.25.

2. Costs and any issues regarding the amounts agreed for past treatment expenses reserved.

**********

Endnotes

Decision last updated: 29 June 2018