Webb v McCarthy and Verrell

[1990] TASSC 115

Serial No B38/1990
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Webb v McCarthy and Verrell [1990] TASSC 115; B38/1990

PARTIES:  WEBB
  v
  McCARTHY
  VERRELL

FILE NO/S:  997/1985
DELIVERED ON:  13 July 1990
JUDGMENT OF:  Cox J

Judgment Number:  B38/1990
Number of paragraphs:  41

Serial No B38/1990
List "B"
File No 997/1985

WEBB v McCARTHY & VERRELL

REASONS FOR JUDGMENT  COX J

13 July 1990

1. At about midnight on 15 August 1984, the plaintiff suffered injuries when he was involved in a collision between a motor car driven by the first–named defendant and the motor cycle ridden by the second–named defendant and upon which he was a pillion passenger. The car had been driven up Montagu Street towards Augusta Road in Lenah Valley. The first–named defendant halted, looked to the right along Augusta Road, and seeing the roadway clear to the brow of the hill 120 – 150 metres to her right, proceeded onto Augusta Road intending to travel to Mt. Stuart. As she entered upon Augusta Road, she noticed out of the corner of her eye a headlight coming towards her. She accelerated, but the motor bike continued towards her and struck the middle of her vehicle while it was astride the centre of the road. The force of the collision spun the car around 180 degrees and precipitated the plaintiff off the pillion seat and flung him into the roadway.

1. The plaintiff had no recollection of the accident, nor of any events preceding it. He called the first–named defendant to give the evidence I have outlined in the last paragraph. Counsel who appeared for both defendants did not ask her any questions and the second–named defendant was not called. In the circumstances, I accept in toto the first–named defendant's evidence, and am unable to find any negligence on her part. On the other hand, the inference I draw from her evidence is that either the second–named defendant drove the motor bike so fast in the circumstances that notwithstanding the ample distance he had to slow it down and bring it to a halt or manoeuvre it, he was unable to prevent it colliding with the first–named defendant's vehicle, or that he failed to pay proper attention to the roadway ahead of him and to appreciate the car's presence until it was too late to avoid it. I find that he was negligent and the sole cause of the collision and of the plaintiff's injuries.

1. A plea of contributory negligence against the plaintiff on the basis that he rode as a pillion passenger, knowing that the second–named defendant was affected by the consumption of alcohol was made in the defence. The only evidence of the consumption of alcohol indicates that both the plaintiff and the second–named defendant between them consumed about six stubbies of beer approximately four to five hours before the accident. What their respective conditions were at the time of the accident has not been the subject of any evidence, nor has the plaintiff's knowledge of the second–named defendant's degree of intoxication (if any). The plea has not been made out. The plaintiff must succeed against the second–named defendant for the whole of his damages.

1. The plaintiff was born in February 1964 and was accordingly 20 years of age when injured. Until the age of 8 years, he had lived with his parents and sister in South Hobart. His father worked at the Cascade Brewery, but had a few acres at Hillborough Road and kept some animals including horses. The family has always had an interest in rural pursuits, horse shows and rodeos. The plaintiff's parents separated when he was 8 years old and he, his mother and sister moved to Albury for a year and then returned to Tasmania, settling in Ulverstone where they remained until he was about 13. By that time he was in grade 8 at the local High School. They then moved to South–East Queensland where the plaintiff attended High School for grades 9 and 10. In about September 1979 he returned to Tasmania, living with his father and step–mother in Hobart. He completed grade 10 at Taroona High School, and obtained a High School Certificate. According to his mother, his return to Tasmania was preceded by some degree of truancy as a result of mixing with the wrong company. He completed his schooling in 1979 and procured his first job the following year when he turned 16.

1. His school days were marked with a considerable degree of sporting success. He had natural athletic ability, excelled at track and field events, and played the usual team sports well. A report by the principal of the Ulverstone High School for grades 7 and 8 is fairly typical:

"He was at this time a keen sportsman and showed considerable sporting ability. According to our records, he was Junior House Captain for Flinders, played in the grade 7 and 8 football teams, represented the school in Inter–High cross country both years and was track champion (athletics) in both years".

His application to studies was good to average and in his final year he achieved passes in English, Mathematics, Science and Social Sciences and a lower pass in Woodwork. His Headmaster at Taroona High School commented that his conduct was good, he was well–mannered, had a co–operative attitude, was punctual and in his application to school work was responsive to advice. As well as engaging in sporting events run by the schools he attended during his school years, he participated with enthusiasm in bull rides at rodeos and achieved success in this field.

1. After leaving school in late 1979, the plaintiff worked in Hobart for Gibson's Flour Mill for three to four months and thereafter for about the same period of time for Ensign Tyres. Both positions were of the unskilled labouring type. He gave up the second job shortly before the Ross Rodeo in October 1980 in order to attend a short course on bull riding conducted at Biloela on the Mainland of Australia prior to competing in the last-mentioned Rodeo The only other significant period of employment he had, prior to the accident in August 1984, was as a Jackeroo at Rushy Lagoon in North–Eastern Tasmania. He gave up this employment after about eleven months following an altercation with the manager of the property with whom he had had a number of differences. There was some confusion as to when he worked at Rushy Lagoon, and as one of his problems is related to his memory, his own evidence about dates and times is understandably unreliable. His step–mother gave evidence that she and the plaintiff's father had gone to work on a neighbouring property, "Icena", in about October 1982, when her daughter was thirteen months old. The plaintiff, she said, had gone to Rushy Lagoon about nine months before she had gone to "Icena". Furthermore, she had remained at "Icena" about eighteen months before moving to a farm at Kellevie about three months before the plaintiff's accident. Working back, this confirms her evidence that she started at "Icena" towards the end of 1982. Evidence from his mother that he had visited her in Queensland about nine months before the accident and from Mr Jacobson, a jackeroo at "Evercreach" near Fingal in 1983 that the plaintiff had worked there for a week without pay in that year would suggest that he had left Rushy Lagoon prior to 1983, while Mr McCullagh's evidence that the plaintiff was 18 years old when the latter started at Rushy Lagoon also confirms that he was there in 1982. I find that the plaintiff worked at Rushy Lagoon for about eighteen months prior to the end of 1982. During that year, he competed in a number of rodeos throughout Tasmania.

1. Upon terminating his employment at Rushy Lagoon, the plaintiff spent some time with his father and step–mother at "Icena", where his father was employed as a stockman. He was employed on a casual basis, working on occasions only a few hours per day exercising horses, while on other occasions he helped out with calf and lamb marking, rounding up stock and fencing. How long he worked at "Icena" is not clear, but it seems to have been a relatively short period of time. He also worked for a week without pay at the property known as "Evercreach" and also in 1983 he went to Queensland to visit his sick younger brother and participated in a number of rodeos in that State. At the time of the accident he had been back in Hobart several months. He was receiving unemployment benefits and was living with a group of young people of his own age in Battery Point. A month before the accident, his present wife moved into the flat.

1. Mr Harold Skinner, from 1982 until 1986 the general secretary of the Australian Rough Riders Association and a person with considerable knowledge and expertise in respect of rodeos, gave evidence of the plaintiff's experience and potential as a bull rider. The plaintiff took third place in the open bull ride at the Scottsdale Rodeo on 30 January 1982, he was first at the Harveydale Rodeo near Westbury on 13 March 1982, and was awarded the prize for runner–up rookie for Tasmania that season. In November 1982 he took second place at Georgetown, on 5 February 1983 third place at Ulverstone (Open) and first place in the Second Division, and on 19 February 1983 second in the Open bull ride at the Huon Channel Rodeo and third in the Second Division. In September 1983 he was placed fourth in an Open bull ride at Dalby in Queensland, on 15 February 1984 he was second in the Open bull ride at Oatlands, on 18 February 1984 fourth in the Open and first in the Second Division at the Huon Channel Rodeo. His total prize money prior to the accident was a little over $800.00.

1. Mr Skinner said that he regarded the plaintiff as a very promising rodeo rider with the potential to become one of the top bull riders in Australia, and to compete creditably in North America where the sport is very popular. A number of other witnesses with experience in the field expressed similar opinions. It is clear, however, that unless a rider can bring himself within the top three or four competitors in the country, his earnings are not likely to be of much significance. Indeed many riders barely cover their expenses and subsist on casual jobs along the rodeo circuit. The top riders, in addition to their winnings, may attract fees as instructors at rough riding courses which are conducted with some frequency throughout the country. The sport is hazardous and few riders remain competitive after they reach the age of 30.

1. Comparison was made with another bull rider, Gavin Woodall, who is some three years younger than the plaintiff and who, in Mr Skinner's opinion, may be top rider this year. His winnings (primarily from bull riding but also from other events such as saddle bronc riding) were $5,519.00 in 1986, $8,459.00 in 1987, $13,309.00 in 1988, $6,083.00 for about one–third of the year 1989 (he spent the rest of the year in Canada and the United States of America and his winnings, if any, there, were not revealed), and from 1 December 1989 to 7 June 1990, when Mr Skinner gave evidence, $6,344.00. The witness said he would estimate his likely winnings this year at $15,000.00 – $18,000.00 and that he would need that much to win the bull riding title as was his ambition. Woodall, however, had the advantage of being a member of a family which runs its own travelling rodeo. I think there is a lot to be said for Mr Docking's submission on behalf of the defence that no valid comparison can be made between the plaintiff's ability and that of Gavin Woodall. At the time of his accident, the plaintiff was 20 years old and had been competing for several years. He had won less than $1,000.00. By the time Woodall was the same age, his earnings had already exceeded $15,000.00 and if 1987 was the year he turned 20, as seems to be the case, he had earned over $8,000.00 that year. As the result of his injuries, the plaintiff can no longer participate in this sport. He did make three or four efforts to make a comeback in 1987, but he was so poorly co–ordinated that he was completely unsuccessful and abandoned it.

1. Although the plaintiff had some promise as a bull rider and had the advantage of being able to base himself in South–East Queensland where his mother lived, I regard his prospects of ultimately receiving an income from this sport any greater than he would have received from any other walk of life reasonably open to him, but for the accident, as so speculative and insubstantial as not to warrant the making of any monetary award in respect of lost opportunities (Davies v Taylor [1974] AC 207 at p212). Of course he derived considerable pleasure from competing in rodeos and I shall bear that in mind when assessing general damages for loss of enjoyment of the amenities of life.

1. The principal injuries then recorded as having been received by the plaintiff in the accident were a closed head injury, a fracture of his left femur and a pneumothorax. He was admitted to the Royal Hobart Hospital and discharged a month later. He had an impaired conscious state for several days after the accident and he had very considerable confusion, irritability, restlessness and impaired memory for some weeks, his memory still being impaired at the time he left hospital. Although no evidence of brain damage was observed on a CT scan taken at the time, the history justified a diagnosis in Dr Millingen's view that the plaintiff sustained a moderately severe head injury from the consequences of which he is still suffering and which are not going to improve in the future.

1. The fractured femur was treated initially with skeletal traction, a steinman pin being inserted in the left tibia for that purpose, and a week later had an open reduction and internal fixation with a Kuntschner nail in the shaft of the bone. He was discharged on crutches and for several months the following year attended the Douglas Parker Rehabilitation Centre receiving regular physiotherapy. In January 1985 Mr R W L Turner, the treating orthopaedic surgeon, reviewed him and found that he had a rather stiff knee and some swelling in the left thigh with flexion restricted to 70 degrees. On 31 January 1985, he was admitted overnight for manipulation of the left knee under general anaesthetic, with the result that his range of flexion was improved to 140 degrees. In August 1985 Mr Turner found him complaining of some pain in the region of the left hip, and he had difficulty lying on that side. On examination he was tender over the hip joint, over the proximal end of the Kuntschner nail which had, as normal, been left a little proud of the bone to facilitate removal. He seemed to have a full range of movement of his hip and knee. In November 1986 the nail was removed and a fortnight later the plaintiff acknowledged that his hip was a bit more comfortable.

1. Mr Turner did not see the plaintiff for another two years when he told him he had been attending a chiropractor because he had some pain in the back. He complained that his back hurt if he sat for long, that he had soreness in the neck and he complained of headaches and some soreness in the right ribs. He had little limitation of both cervical and lumbar spine movements. There was no evidence of any neurological abnormality in his limbs. His left leg showed a full range of knee and hip movements, and x–rays of his lumbar and cervical spines and chest were all normal. He told Mr Turner, a year later, that he was still having problems with his back and neck saying he had pain most of the time, that he found it difficult to get out of bed sometimes because of his back pain, and that some days his pain was worse than others, his back hurting him getting up from a seated position or getting out of a car after driving. On this occasion he appeared to have unrestricted movement of both cervical and lumbar spines. So far as the fractured femur is concerned, Mr Turner thought he had made a good recovery. He apparently had no clinical abnormality and he made no complaints then of any problems with his leg.

1. Although Mr Turner could find no clinical or radiological signs in the back or neck, he acknowledged that there were indications in the hospital records that he had some back pain in the post accident period, and Mr Turner assumed he had suffered some soft tissue damage at the time of the injury which is continuing to cause him pain. There is ample corroboration from numerous members of his family of consistent complaints of pain since his first hospitalisation in addition to physiotherapy therefor immediately after his discharge and at the Douglas Parker Clinic. I find that he did sustain such injury in the accident and continues to suffer pain in the neck and low back from it. Mr Turner did not expect it would improve and I so find. Mr Turner's assessment was that it was unlikely the plaintiff would have any significant trouble with his knee and hip in the future, although osteoarthritis is a possibility.

1. Mr Bernard Einoder also examined the plaintiff for forensic purposes on 21 August 1989. The plaintiff claimed to him that he suffered from constant low neck pain and stiffness, his symptoms being aggravated by all strenuous activities and excessive movement of the neck. Mr Einoder was unable to find clinical signs of any specific abnormalities of the neck. He also complained of constant low back pain and discomfort, as well as stiffness, which was aggravated by bending chores, prolonged stooping, any strenuous work and prolonged sitting. He said he had had some chiropractic treatment with some relief of his symptoms. X–rays showed that he had degenerative changes of wear and tear between the seventh cervical and first thoracic vertebrae. Mr Einoder inferred in the absence of any evidence of other trauma that the accident was responsible for these changes. He considered it a remote possibility that the plaintiff might at some future time require cervical fusion for C7 and T1. The plaintiff complained of some soreness at the top end of the femur and at the fracture site with some muscle wasting. Mr Einoder thought his impairment was about 10% with respect to his lower limb as a whole and that was mainly due to his weakness of muscle. He considered that there was a possibility of osteoarthritis later developing, but was not prepared to venture a percentage chance. In summary, he felt that physically the plaintiff was fit to perform most occupations where he was on ground level and able to command his own pace and vary his work rather than engage in one particular strenuous activity all day. He thought the plaintiff's condition might get a little better with time.

1. So far as the pneumothorax is concerned, it was treated with an intercostal drain to reinflate the lung. Over the years, he has complained of periodic sharp stabbing pains in the right ribs, and there was some evidence of his having difficulties in breathing on occasions. To Mr Einoder he "complained of odd chest pain with the occasional bouts of sharp, short, severe pains that lasted several seconds. These pains came and went unpredictably and were not associated with any other significant problems." He did not regard them as requiring any current treatment nor as being likely to do so in the future. The plaintiff said that he hyperventilates at different times and still gets chest pains lasting five to ten seconds. His wife said that this was a frequent occurrence when he first came out of hospital, but that its frequency lessened and it had not happened in the last six months.

1. The head injuries have resulted in impairment of concentration, irritability, depression, poor memory, a difficulty in social intercourse, a difficulty in maintaining his job, periods of physical violence, intolerance to alcohol and distractability. Despite some indications in reports admitted by consent from the late Mr G P Duffy, Neurosurgeon, that there was a marked worsening of the plaintiff's symptoms about two years after the accident, I find that these symptoms have been continuously present since the accident without any significant degree of progression. They may have become more apparent to family observers as time progressed, and the plaintiff's depression may have been aggravated by particular problems associated with work or enforced inactivity, but it is not the case that there has been any progressive deterioration. Indeed in many ways there have been some improvements as those about him have learnt to adapt themselves to his swings in mood and to reduce the causes of irritation, while the formalisation by his marriage late last year of the relationship with the lady who has become his constant prop since the accident has given him more stability. He has not worked since October 1989 and the absence of pressure from this quarter has had some beneficial side effects.

1. Dr R A Pargiter found not only defects of memory and temper control, but also reduced concentration and distractability, restlessness, irritability, obsessional thought, impaired co–ordination, imbalance, disturbed proprioception, variable depression, headaches and dyspepsia. He formulated a diagnosis of organic psychosyndrome which was directly attributable to the accident. He thought the only treatment which might be necessary was some chemical modification of his behaviour should his temper outbursts become too frequent or violent. Over the years that Dr Pargiter has seen him, he has not observed any significant change, save that the plaintiff seemed less apathetic. The Doctor thought that his settled domestic relationship would help him to adapt to his disabilities and that he would become rather more mellow over the decades and less liable to give vent to his anger and irritability.

1. I accept the evidence of family members and friends called on his behalf that prior to his accident the plaintiff was a placid, friendly person and that since that time he has manifested frequent outbursts of seemingly uncontrollable bad temper. These have on occasion arisen from frustration at not being able to carry out familiar tasks, while on other occasions the source of irritation has not been apparent at all. He has frequently so lost control of himself as to offer physical violence to his wife, while at his work he has been argumentative and truculent. These manifestations are quite at variance with his former personality and are a source of embarrassment, shame and depression to him. The other symptoms are also obviously distressing as the evidence has clearly revealed. It is unnecessary to deal with each one. Suffice it to say that his change of personality and inability to concentrate and remember have caused social isolation, feelings of frustration, a loss of self–esteem and a substantial reduction of his ability to enjoy those pursuits which he excelled at before the accident. These include his successes (relatively modest though I have found them) in the rodeo arena and his sporting prowess in District football and indoor cricket. He has also suffered a diminution in his ability to enjoy hunting expeditions, motor car driving, TV and cinema entertainment and to engage in many humble but necessary household pursuits such as gardening, gathering, chopping and stacking wood and similar chores.

1. The plaintiff's wife gave evidence that because of her husband's outbursts, she was hesitant about their having children of their own. She was, until late last year, a child minder and on one occasion had the experience of being struck by the plaintiff in the presence of her young charges. She fears an unacceptable degree of repetition. Nevertheless, no firm decision has been made by her, and I think it unlikely that she would deliberately refrain from having children for this reason or that any such children would be exposed to violence.

1. For many months after the accident, the plaintiff was unable to work. At first he spent a month or so with his mother in Queensland before returning to his shared flat in Hobart. He continued to attend the Douglas Parker Clinic from November 1984 until early April 1985 for physiotherapy. For a few months from October or November of that year, he had casual and modestly paid work exercising horses for a Mrs Midgley of Dodges Ferry, for whom his father also worked. In April 1986 he procured work at Muskett Sawmill at Orielton and remained in that employment until finally dismissed on 4 March 1988. At the time of his engagement, he did not reveal his injury history and seemed to pick up the skills required of him in tailing, sorting and stacking timber. His employer, however, gave evidence that he would forget the instructions and lose concentration and then lose his temper. Mr Muskett said, "He was alright for about a week or a few days or maybe up to a fortnight sometimes he would be O.K. and then he'd lose concentration and wouldn't want to do it the way we wanted him to." Asked about the plaintiff's relationship with other workers he said:

"AHe got on OK. Fine with them for some time and then there'd be a low morale and I'd find out why and because Dale would be upset with them, or they'd be upset with him because of his loss of temper or lack of appreciation of how to do the job.

QWhat did you see of that?

AI saw quite a bit of it and Dale would come in and talk to me about it and I would go and attend to the situation and Dale would lose his temper with me.

QOn how many occasions did that happen over the course of the –––?

AMany, many times. I'm not sure how many times, but I did give Dale notice four or five times over this period or more.

QCan you recall how long after he first started with you you did that?

AI suppose it would be three or four months, three months.

QDid you actually dismiss him?

AI gave him a week's notice. Yes.

QAnd what happened then?

AAnd then his girlfriend would ring me and say – the very first time – and put me in the picture that he's had a problem with an accident and that he had an excessive temper and there was a problem there so I'd take pity on him and put him back on again."

1. In the end after nearly two years, Mr Muskett said things got so bad he just had to let the plaintiff go and replace him. He also said that the plaintiff complained sometimes of a back problem – "Not too often, but he did complain about a back problem now and then and he would have a day or two off and come back to work again".

1. Not long after losing that job, the plaintiff procured employment with Visy Board Pty. Ltd., a cardboard manufacturer and processor at Cambridge where the plaintiff lived. He retained this job until the company ceased operations for economic reasons on 27 October 1989. He was the sole operator of a cardboard pressing machine. His supervisor frequently saw him stretching his neck and back as if to gain relief from pain, and noticed that he was very short tempered. Nevertheless this fact did not hinder his employment as it did not affect anyone else in the plant. Once or twice his supervisor had to ask him to "tone down" his irritability. Otherwise he was conscientious and punctual and got on with the job. There was no suggestion of absenteeism.

1. The plaintiff has not worked since November 1989. The doctor at Sorell who is now treating him first saw him in May 1988 complaining of pain in his hip and neck. He treated him with anti–inflamatory medication. In February 1990 he presented again complaining of back and neck pain and a course of Feldene was commenced. Dr Alexander considered that he was not fit for work and gave certificates resulting in his being accepted as qualified to receive Sickness Benefits. He also arranged a course of physiotherapy which was conducted in May 1990, shortly before the trial. I think it is reasonable to infer that physiotherapy and anti–inflamatory treatment have by now made him as fit for work as he was during the time he worked for Visy Board Pty. Ltd.

1. Undoubtedly the accident has had a significant effect upon the plaintiff's ability to engage in gainful employment. In determining his economic loss, three main questions arise: firstly, had it not been for the accident, what was the plaintiff's likely career path and what has been his loss, if any, to date; secondly, what are his prospects for employment hereafter; and thirdly, what, having regard to the incidence of the disease known as Huntington's Chorea in the plaintiff's family, is the likely span of his working life whether or not the accident had occurred.

1. The plaintiff gave evidence that he was interested in a career in the rural sector. He claimed that it was his intention to continue his training as a jackeroo and his expectation was that he would progress up the ranks of stockman, head stockman to the position of overseer or even manager of a pastoral property. A number of witnesses gave evidence of his proficiency as a first year jackeroo, of his being temperamentally suited to that kind of life, of his ability to get on well with others and generally of his potential had he persisted in such a life to achieve the level of overseer. The difficulties adherent in making such predictions are notorious. The proper approach is indicated by Nettlefold J in Martin v Howard [1983] Tas R 188 at pp 201 – 202 where his Honour said:

   "A category of cases which has a distinct bearing on this case is exemplified by such decisions in the High Court as Hutchinson v Sward [1966] ALR 1021, 39 ALJR 500, and Wade v Allsopp (1976) 10 ALR 353, 50 ALRJ. 643. The essential feature in that category of cases is that a young plaintiff has been seriously injured but, being young, his pre–accident capacity cannot be ascertained as the capacity of an established mature worker can be ascertained. You must endeavour to ascertain what his potential was as best you can and compare that with his potential in his injured state. The critical point is that what he is entitled to be compensated for is the loss of the chance of achieving a greater level of reward during his working life than he is capable of achieving in his injured state. But there is a substantial difference between compensating for the loss of a chance and compensating for the destruction or impairment of a proven capacity.

   The respondent being only seventeen years and a half when injured, it was necessary to form some estimate of what his future would have been but for the accident and to compare it with his likely future prospects in his post–accident condition. In the case of such a young person what is to be compensated is the loss of a chance to earn unimpaired by the accident–caused injuries and, in evaluating that chance, due regard must be had not only to all the normal external vicissitudes of life but also to the possibility that, for reasons to himself, a youth's future may not justify the promise of his early years."

2. It is clear that at the time of the accident the plaintiff had not developed any great degree of maturity or stability and his employment record was patchy at best. In the four and one half years since leaving school, the only significant jobs had been two labouring jobs held for about four months each, and one of eleven months as a jackeroo, a job which he himself terminated eighteen months or more before the accident. In that intervening time he had few jobs and none of any great length. Without wishing to be critical of him, it seems he was content to drift along, getting what jobs he could, taking advantage of the roofs over his head provided by his father and step–mother in Tasmania and by his mother in Queensland and the chance the latter provided to get to rodeos on the Mainland. He picked up a few winnings from this endeavour and may well have won more prizes but he showed no inclination to accept the discipline of acquiring the kind of training that a successful career on the land demands. Notwithstanding his many connections with the rural community and his requests for friends to look out for jobs as a jackeroo, no opportunities, if they existed, were availed of by him. By the time of his accident, he was living in the City and looking for jobs there. He had met a girl to whom he was attracted and with whom he subsequently lived and then married. Whether, but for the accident, the relationship would have developed in the same way and led to his applying himself more diligently to his future career or whether he would have drifted on with the kind of lifestyle he had adopted prior to meeting her is problematical. I am not satisfied on the balance of probabilities that he would have achieved a level of employment giving any better financial rewards than the kind of jobs he has in fact had in the intervening years. I think the probabilities are that to date he would have had intermittent employment (the periods of unemployment becoming less as he matured in age, experience and relationships) and would have engaged in basically unskilled work or if a rural career had been followed, in work in the lower echelons of that industry such as farm labourer or stockman.

1. In the period of almost six years since the accident, he has had employment for the equivalent of approximately three and one half years on a full time basis (I have reduced the length of time he was employed by Mrs Midgley because that was part–time work). Of the remaining two and one half years of unemployment after the accident, I am not satisfied on the probabilities that he would have been, but for the accident, fully employed. I think it would be reasonable to proceed on the basis, having regard to his general lifestyle and to the fact that he was, in any event, unemployed at the time that he would not have been employed more than three quarters of that time. In making that estimate, I do not overlook the fact that, but for the accident, his rodeo activities would have produced some revenue which he has lost. In his last employment he was paid a nett wage of $331.00 per week. An award equivalent to a sum paid at this rate for a period of approximately 22 months amounts to nearly $32,000.00 and represents, in my view, a reasonable estimate of his economic loss to date even allowing for the fact that he would probably not have been paid at this rate prior to being employed at the saw mill in 1986.

1. In considering the plaintiff's present prospects of future employment, I bear in mind that despite his handicaps he has proved himself capable of holding down full time employment for sustained periods of time. By reason primarily of his lack of concentration and his irascibility, his chances of employment are lessened and there will probably be periods when he cannot find an employer sympathetic enough to overlook those traits or to make appropriate allowances for them. In addition, his physical disabilities may well cause him to lose some time from work. I do not foresee lengthy periods of time where he would be physically disabled from attending work, but rather occasional breaks to recuperate. Nevertheless such breaks may militate against his acceptability as an employee and make it harder to retain an existing job or to acquire a fresh one. It was argued that the plaintiff should be compensated on the basis of a 50% disability for work in the future. I think this is too pessimistic and would evaluate the degree of future disability for the remainder of his working life at 25%.

1. The next question is what is a reasonable expectation of the remainder of his working life. Mr Duffy in his reports which were tendered by consent asserted that there was a very strong family history of Huntington's Chorea, the plaintiff's father being presently a sufferer. There was a suggestion that the plaintiff's symptoms were due to the early onset of that genetic disease, Mr Duffy regarding it as significant if it were the fact that the plaintiff's symptoms were progressively deteriorating. However, as I have said, I do not accept that as a fact and find that the plaintiff is not presently affected by Huntington's Chorea. Nevertheless, both Dr Millingen and Dr Pridmore, who has made a special study of this disease, state that if the plaintiff's father is a sufferer, there is an even change that the plaintiff may himself be affected in the course of time. Dr Pridmore has treated Mr Webb, Snr. and although the latter does not exhibit the classic involuntary movements of the Chorea, he does have other signs of the disease. In consequence, Dr Pridmore is of the view that on the probabilities (which he apportions as 75% in favour of the proposition and 25% against) the plaintiff's father is so afflicted. I so find.

1. I also accept the evidence of Dr Pridmore that sufferers of Huntington's disease in Tasmania, where there is a high incidence, on average experience the first onset of the disease at the age of 48.3 years, and that 15 years is the normal duration of it. About half way through its course, the patient has reached the stage where he is no longer employable. On average, therefore, a patient is unlikely to be able to continue in employment beyond the age of 55 years. Dr Millingen said that he would expect the onset of the disease in the fourth decade of life, but said unemployability might not occur for up to ten years after onset. On balance, I prefer the evidence of Dr Pridmore.

1. The plaintiff unfortunately has an even chance, I find, of falling victim to this disease and if he does there is high probability that he would not remain in the workforce after attaining the age of 55 years. Over and above any other of the vicissitudes of life, I should allow for the contingency that being now 26 years of age he will not work the 39 years remaining until he is 65 years, but may be forced to retire about ten years earlier. I believe the adoption of an expected working life of approximately 30 years should meet this contingency, together with any of the other normal vicissitudes of life such as premature retirement through accident, sickness, retrenchment or design or premature death.

1. The sum of $85,894.00 represents the present value using 3% tables of the right to receive one quarter of $331.00 per week for the next thirty years. To allow for the plaintiff's anticipated loss of future earnings for the remainder of his working life having regard to the above contingencies, I round that figure off and award $86,000.00.

1. In addition to the plaintiff's complaints I have already noted, I find that he suffers frequent headaches, sometimes lasting all day. He also has periodic but less frequent stabs of sharp pain in the head about the temple which last a few seconds but which then subside. He is not, however, in perpetual pain and is capable of enjoying a round of golf which he plays quite proficiently. His period in hospital after the accident was marked by considerable pain. In respect of pain and suffering and loss of the enjoyment and amenities of life, I award $40,000.00.

1. There remain special damages to be assessed. Many items are agreed. There was evidence of the loss of clothing and a watch as claimed, but no evidence of the value of the jeans, bush jacket, shirt and watch said to have been damaged in the accident. The claim was for $155.00. I am satisfied these items would cost at least $100.00 and allow that sum. I also allow medication as claimed in the sum of $925.25 and travelling expenses in the sum of $657.60.

1. As to future medication, I am not satisfied that Feldene will be required indefinitely and although there will be a requirement for disprin, liniment and radox for the foreseeable future, I consider the weekly amounts claimed are over–stated. In my view an allowance of the present value of $2.50 per week for the next 40 years will amply provide for these needs. I allow $3,000.00.

1. A claim was made for two physiotherapy sessions at a weekly cost of $49.60 for the remainder of the plaintiff's life. Although the plaintiff shortly prior to trial had a course of physiotherapy with benefit to him, I am not satisfied that there is any on–going need for such treatment at least not at this rate. It is the first such regular treatment since he ceased attending the Douglas Parker Centre. However, he has since then had some chiropractic treatment which caters for similar needs. I think it is reasonable to infer that he might need a short course periodically, but I am not satisfied that an allowance for any more than say six treatments per annum would be justified. That would represent a cost of approximately $3.00 per week. I will allow $3,800.00.

1. Claims under the principle of Griffiths v Kerkemeyer were made in respect of services rendered by the plaintiff's mother and his wife during the four months following the accident. His mother came from Queensland to see him in hospital and took him back there to recuperate for a month. His wife has been a tower of strength to him ever since. The claims are eminently reasonable and are allowed in the sum of $3,024.00 as claimed.

1. There will be judgment for the first–named defendant against the plaintiff, but the plaintiff will have judgment against the second–named defendant for $169,506.85, made up as follows:

Past economic loss  $32,000.00

Future economic loss  86,000.00

General damages for pain and

suffering, etc.  40,000.00

Clothing  100.00

Medication to date  925.25

Travelling expenses  657.60

Future medication  3,000.00

Future physiotherapy  3,800.00

Griffiths v Kerkemeyer Claim  ___3,024.00

TOTAL $169,506.85

1. I have not included payments already made by the MAIB, evidence of which appears as part of exhibit P11. I take it that as there is no reduction for contributory negligence, their inclusion is academic, but I will hear counsel if they have submissions to the contrary.