Zacharia v The Nominal Defendant No. DCCIV-01-1906

ZACHARIA - v - THE NOMINAL DEFENDANT
[2003] SADC 120
Judge Bright
Civil

One of the many Range Roads in this state runs between Delamere and Victor Harbor, in a generally east/west direction. At a point about 5 kilometres east of Delamere is the junction with Three Bridges Road, which joins at about a right angle from the south. At that point Range Road is taking a sweeping bend which is, for west bound traffic, a bend to the right. (The bend had a radius of 257 metres. To put that in perspective, a circle of that radius would have a circumference of about 2.3 kilometres.) Range Road is a country road in generally good condition, with, in particular, a smooth bitumen surface and usual centre line markings. There is a speed warning sign suggesting a maximum speed of 95 kilometres per hour before the bend. At least in dry weather, any competent driver should be able to take the bend easily at a speed well in excess of the speed limit of 110 kilometres per hour, which applied to the road at the time.
The plaintiff was riding his Honda CBR 900 motor cycle east on Range Road on the afternoon of Sunday, 26 September 1999, when he crashed and sustained severe injuries. He left the road to his left and, after some distance off the bitumen, hit a star dropper and wire fence. The road was dry. Visibility was normal. There was no defect in his bike. He says that the reason was that, at that point, he saw an oncoming vehicle which was at an angle indicating to him that it was crossing the centre of the road into his path. He put the right front corner of that vehicle in the centre of the road, it could have been a metre either side. The front of the car was dipping as if it was braking heavily. He believed he was facing an imminent head-on collision.
He says that, when he saw the car, he was leaning to his right as he took the corner. He had earlier been travelling at about 140 kilometres per hour, but had noticed some felled timber stacked by the road and thought that trucks might have brought debris onto the road. He was also aware of the possibility of gravel being carried up onto Range Road from the surface of Three Bridges Road, which is a dirt road, though of bitumen right at the junction. He had, therefore, slowed to 110 kilometres per hour.
He sat up into a more upright position, thereby bringing his bike into an upright position. He looked to his left, saw what he thought was an open, traversable paddock and headed for it in, broadly, a straight line tangential to the curve of the road. He did not brake. He had not seen the wires of the fence into which he crashed. He did not see what became of the car. All he can say of it is that it was a light colour, and was a medium sized saloon.
The nominal defendant puts him to proof of these allegations and contends that there was no such car. It contends that it is more likely that the plaintiff, through carelessness or speed, ran wide on the bend and lost control.
The plaintiff was born on 21 December 1967 and was, at the time of the accident, a very experienced motor bike rider. Apart from ordinary road riding, he has raced motor bikes at Mallala and been a competition motorcross rider. Though he had only had the Honda for some nine months, I am satisfied that he was competent with it. No unfamiliarity or lack of expertise with his motor bike caused the accident.
On that day he had joined his older (by about 14 years) brother, Bill, and other friends to go for a ride. There was a party of about seven bikes. His brother had his wife as pillion passenger and a friend, Demo, had his partner as pillion. The plaintiff and the others rode solo. The plan was to ride to Victor Harbor, via Clarendon, then on to Delamere and back to Adelaide up the Main South Road. It was just a social ride, with no planned elements of racing or trialling. The party stopped at Clarendon for fuel and then travelled to Victor Harbor for lunch. The plaintiff says lunch did not include alcohol. After lunch they set off for Delamere, agreeing to meet there so that some could re-fuel.
As they settled down, the bikes spread out and did not remain in view of each other. At a point perhaps 25 kilometres east of Delamere there is a 90º bend to the left. If you go straight on, the road becomes a dirt road. Some witnesses called the road to the left Delamere Road, others said it was still Range Road, which is what I shall call it.
As the plaintiff reached this point he saw that some of the other riders had overshot the turn or turn-off and were slowing to come back. Bill and Demo had taken the correct route, but were travelling slowly (perhaps to see that the others realised their error). The plaintiff turned left and soon passed Bill and Demo. Thus he became the lead bike. When Bill got to Delamere he expected to find his brother there. He was not. A brief inquiry at the petrol station suggested that no motor cycle had recently passed through – nor was the plan for the plaintiff to continue on. Bill was concerned and set off back along the road to see if he could see any sign of the plaintiff. As he did so he met the various other members of the party, who did the same.
It happened that the plaintiff was some distance off the road and it took a while before one of the party saw him. It was enough time for Bill to go all the way back to where he had been passed by the plaintiff near the Range Road/Delamere Road turn off and then to be coming back to the west. His assumption was that, if there had been an accident, the plaintiff was likely to have left the road on the left or southern side. He was looking, without success, for any sign of that.
I will come to injuries later. An ambulance and police were called. Eventually the plaintiff was taken to Flinders Medical Centre by helicopter. Bill was in a highly emotional state, fearing the worst for his brother. However, he walked up and down Range Road looking for any signs to explain what had happened. He walked west with a police officer and they located some skid marks from a car, angling from the east bound lane towards and onto the centre line. He immediately concluded that they might be relevant. Evidently the policeman did the same, as he went back to his car, got yellow paint and marked out the skid marks.
Bill also walked to the east of the scene. The plaintiff and his bike finished up in a paddock to the west of Three Bridges Road and south of Range Road. Bill examined the southern verge of Range Road for some distance to the east of Three Bridges Road and also the mouth of Three Bridges Road. He found nothing. He concluded that his brother had been forced off the road by an oncoming car.
It happens that he, too, is a very experienced motor cyclist. He is an instructor of motor cyclists for the Department of Transport as part of the training for motor cyclists to get their licences. He struck me as a careful and safety conscious person. That day he had his wife behind him. I reject any suggestion that the whole day was a mad speed-fest. Of course, he could say nothing about the plaintiff after he passed about 20 kilometres before the accident. He had some experience in examining skid marks and the like – hence his interest. He thought they were fresh.
He played a part in the effort to keep the plaintiff talking and conscious. He says he did not discuss how the accident may have occurred and, in particular, did not tell the plaintiff about the skid marks on the road. The first recorded version of the plaintiff’s story definitely attributable to him is in the notes of the orthopaedic surgeon, Mr Pohl, who took a history the next day. It accorded with the evidence I have related. I am satisfied that it was not generated by anything suggested to the plaintiff by his brother. There is a record in the notes of the Flinders Medical Centre on the night of the accident which is consistent, but it is not certain it came from the plaintiff. He would then have been at least heavily sedated.
Some months later the plaintiff attended at the scene and saw the skid marks. He believes that they were probably caused by the oncoming vehicle and that he first saw that vehicle at about the western end of those marks. He gave instructions to his advisers and evidence to me that he left the road to the west of Three Bridges Road.
The defendant arranged for an insurance investigator, Mr Coulter, an accident re-constructor, Mr Aust and, eventually, surveyors to photograph, examine and map the scene. The defendant located a Mr Krichauff. He is a grazier who, with his family, farms a number of properties in the area. He is also the Captain of the local Country Fire Service, in which capacity he had been called out to the accident. He found that police and ambulance officers had the situation under control and was released.
However, he was then (and is now) sure that the skid marks marked out by police had been present at least for several days before the accident. He had seen them as he passed along that part of the road in previous days. He said that such marks appeared several times a year along the road. From his own experience, he assumed they were made by drivers avoiding kangaroos. He told police at the scene.
He also walked up Range Road to the east to see what he could see. He located a mark in the gravel on the southern verge about 18.5 metres east of the sign giving the name Three Bridges Road in the mouth of that junction. He says he saw the mark continue across the loose gravel in the mouth of the junction and then in some mud at the western edge of Three Bridges Road. He then lost it, assuming that, at that point the bike had become airborne as the ground sloped down to the fence. He saw where wires in the fence had been snapped, he assumed, by the bike and that the bike had come to a halt a few metres away, inside, but tangled in the fence. He said that the mark he had followed was generally in line with where he believed the first impact to the fence had been. He believed that the plaintiff’s bike had made the mark. He is not (and did not claim to be) an expert. He does have considerable experience in attending accidents with the Country Fire Service. I thought him firm, fair and clear.
I cannot say whether the plaintiff’s brother or Mr Krichauff was the first to examine the road east of Three Bridges Road. They cannot have been far apart. The trouble with the mark Mr Krichauff says he saw is that he says it went across an embankment on the west of Three Bridges Road (estimated by Bill at 18 inches high) and then down a slope to the fence. Both Bill and Mr Hall, a very well qualified expert in motor cycling, say that they do not believe the plaintiff’s motor bike could have followed this course at a speed of around 110 kilometres per hour. It would have capsized before reaching the fence. In court, Mr Krichauff marked a photograph with the line of the mark he says he saw. That line leads to a point some distance south east of the known impact point with the fence and into collision with a pile of pine logs. Mr Krichauff said that when he later attended at the scene with Mr Aust, an accident reconstruction expert, he pointed out the mark, which, he said, was still there. Mr Aust says he saw no mark – and it is a fair inference that, if a mark had been readily visible, he would have recorded it.
Mr Krichauff has no motive to lie about this – and I am sure he did not. In fact, he was a rather unwilling witness who attended only on subpoena. I cannot explain how he could be wrong, except to speculate that there were other bikes in the vicinity that day. Did one of the other riders ride down to the fence? At a slow speed that would not be hard. It seems entirely possible that one of the party could have done so in the first moments of discovering the plaintiff. He could have removed his bike later, when police and ambulance arrived, or in preparation for that, which would have been before Mr Krichauff arrived. The evidence is silent about this. There appears to have been a later motor cycle accident on the same corner. Could Mr Krichauff be confusing some mark associated with that accident?
In any event, faced with the plaintiff’s evidence that he went off the road further to the west, with Bill’s evidence that he looked for and saw no such mark on the day, with Mr Aust’s evidence that he saw no mark on the day he accompanied Mr Krichauff to the scene and the fact that the mark deposed to is not, on the basis of where the plaintiff came to rest and where the fence was damaged, according to either Mr Hall or Mr Aust, the probable path for the bike, I conclude that he is wrong.
On the other hand, his recollection that the skid marks marked by police pre-dated the accident is hard to dispute – he was not challenged on his claim that he told police on that afternoon that this was so. At that time his knowledge of that would have been current and fresh. They are in a place consistent with the plaintiff’s assumption that they were left by the car he saw, but that is not conclusive, either of the existence of that car, or of where it was. It appears to be a coincidence.
The defendant’s counsel points to how easy it is for a driver to invent, consciously or unconsciously, the presence of an unknown vehicle and to blame that vehicle for his woes. Once such a claim is made, it is hard for the nominal defendant to refute it, particularly as, by definition, it does not have access to the driver of any such car. I bear that caution in mind.
I felt that I could trust the plaintiff as an honest witness. He was not prone to exaggeration, nor was he demonstrably untruthful in any detail. The only detail on which he appears to be demonstrably wrong is that he believes that, when he returned to the scene a couple of months later, the fence was still unrepaired. The recollection of Mr Aust and of Mr Krichauff that the fence was, by then, repaired, seems more likely to be true. If the plaintiff is wrong about this, it hardly seems to be a matter to lie about. Another detail concerned me for a while. The plaintiff claimed that, as he was eventually stretchered from the scene, he noticed damage to the fence. Having regard to his state, I was sceptical. He referred to vertical wires, which seemed odd. However, Mr Krichauff described broken wires. Presumably, they hung down. The plaintiff may be correct. If not, it is not something about which there would be any point in lying. He seemed pretty matter of fact. The manner in which he described his injuries and disabilities was notably free from obvious exaggeration. I have no belief that he consciously invented this story – I am sure he believes it. Nor do I think it likely that, at some subconscious level, he has come to believe in the presence of a car which was not there. I find that there was such a car.
It remains to consider whether the proved movement of that car and the plaintiff’s reaction, establish negligence. True it is that the plaintiff did not have the car under observation for any extended period of time. When he first saw it, it appeared to be crossing into his path. He concluded that he had to take evasive action at once. He was not inexperienced on the road. He could only say that the car appeared to be angled to the right of its correct course and was nose down, as if braking. He could not precisely say where the front right corner of the car was.
He made, and says he had to make, a very rapid decision. At 110 kilometres per hour a vehicle covers about 30 metres per second. He and the car were closing at, perhaps, twice that speed. Each driver would have needed time to react. If each took a little less than a second, the car and bike could have been about 50 metres closer to each other. There are no fixed points from which to calculate how close the vehicles were at that point. All one can say is that they were closing on each other rapidly.
I cannot think that the plaintiff, an experienced rider, is likely to have mistaken a perfectly safe situation for one of imminent serious danger. I accept that he could only give sparse details of the car and its course. He only had moments. He then had to concentrate on where he was heading. His inability to be precise does not surprise me. I accept that he made a conscious decision to head off the road. I cannot think it likely that he would do that if, in fact, there were no danger. The decision to head off the road into a paddock on a motor bike at 110 kilometres per hour is not one to be taken lightly. I cannot exclude a theoretical possibility that he was mistaken – but that seems pretty unlikely. On balance I conclude that he was not. I find that an unknown motorist created a situation of danger by veering into or towards the plaintiff’s path.
It is submitted that, in the absence of clear evidence about the distance between the vehicles at that point, it cannot be assumed that the plaintiff’s response was reasonable. In my judgment, it is improbable that the plaintiff would have veered off, unless he thought (as he said) that he had no choice. He did not strike me as likely to make a completely baseless decision. In my view, the unknown motorist owed the plaintiff a duty so to drive as not needlessly to precipitate the need to consider evasive action. Possibly, with hindsight, it might be the case (and I do not say it was) that there was enough time for the plaintiff to assess the situation for a little longer and for the unknown driver to correct his (or her) course. That is a counsel of perfection. Time, on any version, was probably very short indeed. The plaintiff did not have the luxury of calm debate. A court should be slow to criticise his reaction.
Insofar as it is for the plaintiff to establish that the actions of the unknown motorist caused his accident, I am satisfied, on balance, that they did and that no action on the part of the plaintiff broke that link. Insofar as it is for the defendant to prove that what the plaintiff did amounted to contributory negligence, it has not done so.
The only clear evidence on which a claim for contributory negligence could be based was that of the speed of the bike. The plaintiff conceded he had, some distance to the east, been travelling at 130-140 kilometres per hour, but had slowed to about 110 kilometres per hour for the bend. The plaintiff claimed to have noticed the junction with Three Bridges Road and to have adverted to the possibility of loose gravel on the road. He said he also noticed a pile of felled pine logs and was alert to the possibility of trucks in relation to forestry activity. Had either of those dangers materialised, and, had he failed to cope with them, his speed might have been seen as excessive. However, they did not. Despite the advisory sign suggesting 95 kilometres per hour on the corner, the evidence of the plaintiff and of Mr Hall, satisfies me that, on that day, in the prevailing conditions, the plaintiff should have had no trouble in following a correct course around the bend, safely within his own lane.
It was said that, nevertheless, the principles of defensive driving require a person to be alert for the unexpected. Relevantly, the plaintiff gave himself less chance to avoid the accident than if he had travelled at a slower speed. No doubt, as a generalisation, that is true. However, it would suggest that, even on a straight road where 110 kilometres per hour is permitted, a slower speed is necessary. There was nothing about this corner to suggest that a car might run wide. The error of the driver seems to have been just as likely on a straight. In any event, as Mr Hall said, a reduction in speed to 95 kilometres per hour would have had little, if any, effect. It is for the defendant to establish the contrary, and I find it has failed to do so.
It was suggested that the unknown motorist may have been intending to turn into Three Bridges Road. There is no evidence that that was so. But, if it were true, there was no right to move or position the vehicle in such a way as to generate a perception of imminent danger to the plaintiff. Probably the plaintiff left Range Road a little to the west of Three Bridges Road. That would suggest movement of the car further west again. If it was cutting the corner, it was cutting it from a long way back. It is not established that the plaintiff should have been able to cope better with that scenario, nor that that was the true situation.

Mr Hall commented on the specific technique adopted by the plaintiff of sitting up, thereby bringing the bike to an upright position before heading off in a more or less straight line, without braking. He said that that, as a matter of motor cycling technique, was the best way to try to keep control of the bike as it headed off. Under braking, or while in a lean, the bike would have been less stable. Nothing in that gives rise to a finding of contributory negligence.
The plaintiff will receive 100% of his damages, which I will now assess.
There is much less controversy about the extent of the plaintiff’s injuries. The defendant accepts that they are serious, but asks me to be more optimistic for the future and to be more pessimistic about residual problems from earlier accidents.
The plaintiff was 31 at the accident and is 35 now. He was a generally fit, active man. His main recreation was motor cycles (as I mentioned he had raced for a couple of years), but he had played various sports when he was younger. He had a good employment record. He completed an apprenticeship as a printer and worked in that field. He left that for a few years to run a clothing store. His brother-in-law was in that occupation and the plaintiff could acquire stock through him. There was a falling out and the plaintiff returned to printing. He was well regarded by his employer, whose business seems to have been stable and well managed. The plaintiff was seen to be gregarious and to enjoy, for example, the relatively frequent barbeques his employer gave at work.
At work, he operated a label printing machine, which involved a good deal of lifting and bending. Some of the rolls of paper he had to lift onto that machine weighed 50 kilograms. He had to be on his feet, constantly moving around checking settings and alignments of parts of the machine and of the paper feeding through it. That called for stooping and bending. It was work requiring stamina and strength.
In the early 1980’s, in separate incidents, he broke his left and right forearms and his right ankle. They seem to have healed without residual disability. In 1987 he had a more serious motor cycle accident. He fractured his right tibia and fibula, his left wrist and elbow, and suffered medial nerve damage. This left him unable to straighten his left arm fully. He has restricted movement in his left little finger and hand. There was a loss of strength in the left arm. Despite that he got back to work as a printer in the job I have described. In 1990 he broke his left collarbone and in 1991 his right. They both healed without residual problems. In 1995, in yet another motor bike accident, he fractured his left pelvis near the hip and injured his right knee. He says that those injuries healed uneventfully.
Thus the plaintiff has a rather chequered history. It appears that the incident of most significance was the 1987 incident. That gave rise to litigation (action 1111 of 1989), in which judgment was given, after a trial, on 7 December 1990. The orthopaedic surgeon who treated him wrote a report, which was accepted by the court. Mr Hone said:
“This man has an excellent result from quite severe injuries. He probably will have very little residual disability from the fracture of his right leg. His main disability is in the left arm. The injury to his left elbow was severe and he has never obtained full range of movement back in the left elbow. Osteoarthritis is going to occur in this left elbow and will become quite severe by the time that he is 40-50 years and will disable him to a certain extent. He should be able to continue on with his trade as a printer but it may stop him from doing other activities. His left wrist joint will also cause him to have pain because of developing osteoarthritis in the wrist joint but this is not likely to occur until the age of 60 or more. Therefore as you can see his main disability is the left elbow. I believe he has recovered as much as he is going to. In the future his condition will gradually deteriorate because of the onset of osteoarthritis. It is my opinion that he will find that by the time he is 40 to 50 he will favour his left elbow as it will be painful when he puts a strain through it either in the act of straightening it or in the act of flexing it. This will limit his day to day activities and make him have to do things in different ways.
It is my opinion that this man has recovered as much as he is going to from his severe accident of 23/9/87. His recovery has been remarkable but because of the severity of his injuries especially to his left elbow he has been left with quite a significant residual disability. I have stated that the disability in my report of 12/12/89 is unlikely to have much disability from the fracture of the right leg. He does have loss of supination in the left forearm and slight loss of flexion and extension of the left wrist because of the fracture of the left forearm. However he has quite marked loss of movement of the left elbow. This is going to increase. He is going to have pain in the left elbow. I have outlined the symptoms that he has. It is my opinion that these are all reasonable. As I have stated in my previous report by the time that he is 40 or 50 he will have more severe osteoarthritis in the left wrist. He may need further surgery in the form of arthroscopy or arthrotomy and arthroplasty to the left elbow. Elbows do not mind repeated operations and it may be necessary in his lifetime to do several operations on his elbow to maintain as much function as possible. I believe that his condition is now stable and his claim could be settled.”
There was also some loss of mobility and strength in the wrist.
No new evidence about these injuries was given in the present case and I adopt Mr Hone’s view. The plaintiff got back to his work and coped. It was argued by the defendant that I should assess on the basis that, by 40-50, the plaintiff will be severely disabled in any event and that I should be cautious in attributing any economic loss after that time to the present accident. The plaintiff submits that, perhaps with some operations, he could have expected to work on. I note that Mr Hone says the elbow “will disable him to a certain extent. He should be able to continue on with his trade as a printer …”. He later referred to a possible need for surgery on the elbow to clean out the joint, perhaps to more than one such operation. I conclude that the plaintiff was going to be able to work on, albeit with increasing pain and restriction. That would also affect his non-work activities. In my view, he may have called it a day a bit earlier than if his arm was pain free. He may have switched to less vigorous work. It is a contingency I shall take into account.
In the subject accident the plaintiff came close to death. Fractures to the floor of his pelvis led to some venous bleeding – more was possible and that could have been fatal. The situation was controlled and that danger passed over the first few days. I cannot improve on the summary given by Mr Pohl, the treating orthopaedic surgeon.
“Mr Zacharia was admitted to the Emergency Department at Royal Adelaide Hospital at 1.48 pm on 27 September 1999, on transfer from Flinders Medical Centre.
According to the letter from the transferring doctor at Flinders Medical Centre Mr Zacharia was involved in a motor vehicle accident on the afternoon of 26 September 1999 in which he suffered multiple injuries including:
1.     An open book fracture of the pelvis.
2.     Fractures of the left transverse processes of the L1-L5 vertebrae.
3.     A bimalleolar fracture of the left ankle.
4.A fracture of the first metatarsal and distal phalanx of the great toe of the right foot.
5.     A painful left wrist.
6.     An extra-peritoneal leak from the anterior bladder wall.
It was noted that he was haemodynamically stable throughout. He was transfused and his haemoglobin overnight measured 11.7. A pelvic belt was applied with bilateral Plaster of Paris backslabs to his legs and skin traction was applied to the left leg.
Mr Zacharia was catheterised on admission which revealed frank haematuria. A urethrogram was normal but a cystogram showed an extra-peritoneal leak from the anterior bladder wall. He was seen by the Urologists who recommended non-operative management of his bladder injury with intravenous antibiotics and a repeat cystogram in 10 days.
On arrival at Royal Adelaide Hospital Mr Zacharia stated that the was involved in a motorcycle accident the previous day at approximately 2.00 pm. He stated that he had worn a helmet. He said that a car pulled out in front of him. He was thrown 20 metres.
On examination Mr Zacharia’s multiple injuries were confirmed. It was noted that there was a penetrating wound to the left wrist. Radiographs demonstrated no fracture. There was no concern regarding his head or chest injuries. A CT scan of the abdomen and pelvis demonstrated no apparent serious abdominal injury.
I was consulted regarding Mr Zacharia’s injuries and reviewed him on his arrival at Royal Adelaide Hospital. He told me that he was aged 31, single and a printer by trade. He confirmed his involvement in a road traffic accident on 26 September 1999. He told me that he was travelling on his motorcycle at approximately 110 km/h, approaching a corner, when a car appeared, travelling in the opposite direction, with it’s brakes locked and swerving sideways.
On 1 October 1999 Mr Zacharia was taken back to Theatre where I performed a debridement of his left wrist wound and a repair of a ruptured extensor carpi ulnaris tendon. Post-operatively he was supported in a padded volar slab, applied to support his wrist in an extended position to protect the extensor carpi ulnaris tendon repair.
Post-operatively Mr Zacharia was treated with bedrest and was protected against thromboembolic disease with an anticoagulation protocol.
On 18 November 1999 I removed the K-wire from Mr Zacharia’s left foot. Mr Zacharia was then posturally trained by the physiotherapists and was mobilised on crutches. By 20 November 1999 he was mobilising safely and independently and was therefore discharged home with an appointment for review in four weeks time. He was referred to Alfreda for hydrotherapy.”
By January 2000, the injury to the wrist had healed, with no more disability than before. The bladder had healed, albeit with a problem of a frequent feeling of urgency. He was walking with a walking stick, which he discarded in February. He had persistent low back pain. Later he went to a rehabilitation program and was clearly motivated to make the best of his recovery.
By December, Mr Pohl reported:
“As the result of his injuries Mr Zacharia reported residual symptoms of lower back ache, soreness and tightness in the right groin, soreness in each hip area, tenderness over the pubic bones, left ankle pain and right foot discomfort, as detailed above in the main body of my report. Consequently he reported restrictions to his work, recreational activities, activities of daily living, in his sleeping pattern and emotionally as documented above. On examination there was some restriction of his back motion, particularly extension. His pelvis was biomechanically stable but was still symptomatic on stressing the right sacro-iliac joint. There was a restricted range of motion of the interphalangeal joint of his right big toe and an area of hypoaesthesia over the medial aspect of that toe. Radiographs of the pelvis showed the formation of an apparent pseudarthrosis between the left transverse process of the L5 vertebra and an area of bone formation sited over the left sacro-iliac joint. Radiographs of the left ankle demonstrated an area of radio lucency on the medial aspect of the fibula over a protruding tibial fixation screw. Radiographs of the right foot show some irregularity over the adjacent phalangeas at the interphalangeal joint of the right great toe.
OPINION:
Although he is still undergoing a rehabilitation program, Mr Zacharia has shown an excellent recovery from his injuries thus far. Some of his left ankle symptoms may be attributable to irritation of the fibula at the site of one of the tibial fixation screws. He would therefore benefit from removal of the screws on the left medial malleolus. He has no symptoms related to the fibular plate, which could be left in situ. He has radiological evidence of the formation of an apparent pseudarthrosis between the transverse process of the L5 vertebra and an area of bone formation over the superior aspect of the sacro-iliac joint on the left. This may account for some of his lower back ache. Should his symptoms not resolve, he may benefit from the injection of cortico-steroid into the pseudarthrosis or, if his symptoms were to warrant it, he might benefit from surgical excision of the pseudarthrosis.”
In April 2001 the screws in his ankle were removed, the plates were left in.
In February 2002 Mr Pohl reported as follows. I make no apology for quoting him yet again – I could not put the case more succinctly.
“RESIDUAL SYMPTOMS:
Mr Zacharia stated that his current residual symptoms included:
1.Soreness of the right foot, particularly in the morning, when he found it difficult to get mobile because his foot was very stiff. He said that he had to walk with a support or else he walked with a severe limp. He experienced tenderness and numbness around the surgical scar. He also experienced tenderness over the lateral aspect of the base of the first metatarsal, which was worse in winter. He said that sports shoes gave him sufficient medial arch support, but dress shoes did not, which left him feeling uncomfortable by the next day if he wore dress shoes. Tight shoes or footware aggravated his symptoms.
2.Soreness and stiffness of the left ankle, particularly in the morning. He found that the initial steps he took were painful, but that his ankle loosened up with exercise over 5-10 minutes. He described numbness that he experienced around the medial malleolar surgical scar and if he tapped on the scar it produced a tingling sensation. He experienced sensitivity around the medial malleolus. He said that he felt left ankle pain most of the day, when he was on his feet. He stated that it was very painful if he ‘rolled’ his ankle, by which he meant twisting his ankle. Consequently he had to be very careful and deliberate when walking, especially on uneven ground. He experienced weakness of his left calf muscle.
3.Residual symptoms of ‘urgency’, that were aggravated by wearing a tight belt or tight clothing.
4.Tenderness around the metal plate on his pubic bones. His symptoms were worse during cold weather, when he found it uncomfortable to lie on his stomach. He said this did not occur all the time, but enough to be a problem.
5.Low back pain. He reported numbness that he experienced over the lower back and upper buttock area. He sited his pain in the lower back region, either in the midline or to one or other side. While lying down his pain tended to be more localised, but spread over a greater area when he was on his feet. Cold weather aggravated the discomfort. Any stumbling aggravated his lower back pain to the extent that it might take several days to settle. Twisting or stepping sideways aggravated his condition. Sitting at a table to read or write aggravated his symptoms after an hour to an hour and a half. Taking longer steps aggravated his lower back pain and caused groin pain which he described as feeling as though his strides were ‘stretching’ his groin. He found it painful to lie on his left side, due to pain that he experienced in the area of the left greater trochanter.
6.Soreness of the left groin, which flared up with gym work, especially as a result of an exercise program. He described the right groin as ‘clicking’ non-painfully with simple movements, for example moving his foot from the accelerator to the brake. He described it as not a daily occurrence, but it did happen. He experienced groin pain when pushing off his left leg while walking.
RESTRICTIONS TO HIS LIFESTYLE:
As a result of his current residual symptoms he reported restrictions:
1.To his work. Mr Zacharia’s work requirements have been documented extensively in the report by Kathy Trankalis. Mr Zacharia stated that the weights involved with his work were too great for him, especially due to the positions he would need to get into while lifting those weights. He told me that he had to take one step up or down the machine, which aggravated his back. He could not work on his feet all day because of left ankle pain and sore feet. His back was painful after standing for an hour or so. He told me that he had done bouts of 2-3 hours work, but that this back felt ‘heavier and heavier’ as time proceeded. He said that it required a lot of effort to keep going. He said that Dr Kelly had stated that he was capable of lifting weights if he stuck to the legal limit of 15 kilograms. However, Mr Zacharia said that there was no paper roll in his industry, delivered from the factory, that was 15 kilograms or less. The paper rolls were 220mm wide and 2,000 metres in length. Other rolls were of the same width, and 1,000 metres in length. He said that he felt incapable of returning to work on normal duties, full time. He said that he was only just able to get through the day, standing up. Mr Zacharia stated that he was restricted to lifting weights of less than 5 kilograms and to avoid prolonged forward flexion or repetitive bending forward with weights in his hands. Prolonged sitting aggravated his lower back pain and he needed a comfortable, padded chair. His driving distance was limited to 2-3 hours, for example, the time it would take to drive from Adelaide to Pt Pirie. Walking on uneven ground could cause him to step unpredictably, which would jar his back. That would necessitate a job restriction for him. He said that he was unable to run.
2.In his recreational activities. Mr Zacharia stated that he had not been go-carting since the accident. He could not play golf anymore because the undulation of the golf course aggravated his back. He had not bowled or played cricket since the accident. He had not undertaken any boat fishing and said that he was worried about standing his weight on the boat in rolling waves. He had not undertaken any walking or hiking since the accident, but said that he had gone camping. He could not cycle because cycling aggravated his left groin pain especially. Leaning forward on an exercise bike aggravated his symptoms. He said that he had only tried to ride an exercise bike, and not a normal bike on the road.
3.In his activities of daily living. Mr Zacharia stated that he could not stand on one leg securely because of lower back pain and poor balance. Consequently he had to sit in order to put his trousers and shoes and socks on. He no longer did any home handiwork. He said that he could push a shopping trolley, but not when fully laden. He told me that when shopping, he tended to load the trolley only half full. He found it uncomfortable to turn a trolley around corners. Holding any weights in front of him caused back strain. However, he was able to carry weights with his arms at his sides.
4.In his sleeping pattern. Mr Zacharia reported difficulty getting to sleep because of an ‘active mind’. He said that he ‘started to think and just could not stop thinking’. He woke up at 4.00 am and when that occurred he would toss and turn for a few hours and then fall asleep again.
5.Emotionally. Mr Zacharia stated that he became upset easily because he did not know what will happen to him. He felt that the ‘system’ was gradually crushing him. He told me that he was getting ‘down’ and upset by the whole process. He said that he looked normal, but was unable to do things he wanted to, and because he looked normal people thought that he would be capable of doing things that he could not do. He felt frustrated by his physical limitations and restrictions.
FURTHER HISTORY
Mr Zacharia stated that he had not been involved in any further accidents or injuries since the subject accident. His current treatment comprised hot pack applications and the use of Deep Heat medicament.
EXAMINATION
On examination of his back I noted a reasonable range of motion, but with restricted forward flexion such that his fingers could only reach to the level of the distal tibia. Extension was approximately 50% of the normal range. Lateral flexion and rotation were normal in range, but I noted loss of the normal curve, and ‘splinting’ of the lower lumbar segments when flexing to the right. Sensation was intact in an L2-S1 nerve root distribution. Motor power, tone and reflexes were normal in an L2-S1 distribution. However, there was noticeable wasting of the left gastrocnemius muscle, even though I could not detect weakness at a gross level.
Examination of his hips showed a good range of motion on the right hand side, with flexion to 150º and no fixed flexion deformity. There was 30º of abduction, 20º of adduction, 20º of internal rotation and 45º of external rotation
On the left his range of hip motion was the same, with the exception of adduction that was limited to 10º only. The Trendellenburg test was negative bilaterally and there was no leg length discrepancy.
Examination of his ankles demonstrated a normal range of dorsiflexion and plantar flexion on the right, with normal dorsiflexion on the left, but loss of 5º-10º of plantar flexion on the left.
Examination of the subtalar joints showed a normal range of inversion and eversion bilaterally.
On examination the forefoot range of motion was normal bilaterally.
Examination of the great toes showed a normal range of extension and flexion on the right, with loss of 20º of extension on the left, and maintenance of normal flexion. There was a noticeable deformity with apparent widening at the base of the metatarsal.
Examination of his pelvis showed no instability to compression forces in an antero-posterior, lateral or oblique direction. I noted tenderness over the pubic plate. With his leg in a Figure-of-4 position, stressing in internal rotation caused pain on the left and ‘resistance’ to internal rotation. Stressing in external rotation produced pain at the extremes of motion on the left, albeit at the end of an excellent range of motion.
RADIOLOGICAL EXAMINATION:
I reviewed various radiographic investigations that were made available to me. Plain views of the lumbo-sacral spine dated 30 November 2001 showed loss of the normal lumber lordosis with marked ectopic bone formation between the transverse process of the L5 vertebra on the left and the left sacral ala. There was irregularity of the left sacro-iliac joint, suggesting the development of post-traumatic osteoarthrosis. A CT scan dated 30 October 2001 showed a healed fracture of the superior facet of the L5 vertebra on the left, with resultant irregularity of the articular surface and incongruity of the joint.
I referred Mr Zacharia for further radiographic investigation including:
1.An AP radiograph of the pelvis which showed deformity of the transverse process of the L5 vertebra on the left and apparent bridging callus between the left transverse process of the L5 vertebra and the sacral ala or sacro-iliac joint. There was narrowing and irregularity of the left sacro-iliac joint. The pubic plate was visible in situ, with no change in position. There was some heterotopic bone formation around the left pubic bone.
2.Radiographs of the left ankle showed a residual washer at the site of a previous screw above the left medial malleolus. The fibula was fixed with a 5-hole plate and screws and the fibular fracture line was visible in part, and apparently bridged in other parts. There was some deformity of the ankle mortice at the superomedial angle, a finding that is not uncommon in such inversion fractures, and reflecting a degree of joint depression at the medial portion of the tibial plafond. I noted osteophyte formation on the lateral view, indicating the development of a degree of post-traumatic osteoarthrosis.
3.Radiographs of the right foot showed a healed fracture of the base of the right first metatarsal, with two fixating screws in situ. The first tarsometatarsal joint was not well imaged, and I could not exclude partial ankylosis of the joint. There was some irregularity of the articulation between the navicular and medial cuneiform.
SUMMARY
As a result of a motorcycle accident on 26 September 1999, Mr Zacharia suffered multiple injuries which I detailed in my initial report of 7 December 1999. His initial treatment and progress were detailed in my initial report and his subsequent progress was detailed in my supplementary reports of 27 June 2001, 11 December 2000 and 4 August 2001.
As a result of his injuries Mr Zacharia reported current residual symptoms of pain and stiffness of the right foot, a severe limp, and tenderness and numbness around the surgical scar at the base of his right great toe; pain, soreness and stiffness of the left ankle and numbness around the surgical scar on the medial malleolus and associated paraesthesiae on tapping the scar. He reported weakness of the left calf muscle; residual urinary ‘urgency’; tenderness around the pubic plate, aching during cold weather and discomfort when lying prone; numbness in the area of the lower back and upper buttock area and pain over the left greater trochanter; and left groin pain, especially during the push off phase of his walking gait. Consequently he reported restrictions to his work, recreational activities, activities of daily living, in his sleeping pattern and emotionally, as documented above. On examination there was a restricted range of back motion, wasting of the left gastrocnemius muscle, a restricted range of left hip motion, a restricted range of left ankle motion, a restricted range of movement of the right great toe, deformity and tenderness at the base of the right first metatarsal, tenderness over the pubic plate and left sacro-iliac joint pain on stressing the ‘posterior pelvic complex’. Radiographs showed loss of the normal lumbar lordotic curve, with a mal-union of the left L5 transverse process, and heterotopic bone formation between the left transverse process of the L5 vertebra and the sacral ala, suggesting an alo-transverse synostosis. A CT scan on 30 October 2001 showed a fracture of the superior facet of the L5 vertebra on the left, with irregularity of the articular surface and incongruity of the lumbo-sacral facet joint on the left. Radiographs of the pelvis on 14/2/02 showed an apparent alo-sacral synostosis, narrowing and irregularity of the left sacro-iliac joint and heterotopic bone formation around the left pubic bone. Radiographs of the left ankle showed deformity of the ankle mortice at the superomedial angle, reflecting a degree of joint depression on the medial tibial plafond and osteophyte formation consistent with post-traumatic osteoarthrosis. Radiographs of the right foot showed some irregularity of the articulation between the navicular and medial cuneiform. The first tarsometatarsal joint was not well imaged and I could not exclude partial ankylosis of the joint.
OPINION:
Mr Zacharia initially gained a remarkable recovery from multiple injuries sustained in the subject accident, as outlined in my previous report of 4 August 2001. He has gained an excellent recovery from his left wrist injury. However, his other injuries are symptomatic. There are signs of mild biomechanical instability of the pelvis with provocative tensioning of the sacro-iliac joints and, as stated in my previous report, he has residual symptoms consistent with an element of bladder retention that would best be addressed by an Urologist. He has a limited range of back motion and radiological evidence of heterotopic bone formation between the left transverse process of the L5 vertebra and the sacral ala, suggesting an alo-transverse synostosis. His limited back motion, particularly affecting left lateral flexion, is consistent with that diagnosis. He sustained a fracture of the superior facet of the L5 vertebra on the left, that has resulted in irregularity of the articular surface and incongruity of the lumbo-sacral facet joint on the left. His symptoms of back pain, loss of lumbar lordosis and impaired flexion, and particularly extension, are consistent with that diagnosis. His history of restricted ability to lift weights, or to hold weights in front of him, but being able to hold weights at his side, is consistent with that diagnosis. In my opinion, attempts to lift heavy weights, particularly from a forward flexed position to one of back extension, would place undue forces across the lumbo-sacral facet joint and would pre-dispose him to developing accelerated post-traumatic osteoarthrosis of that joint. His history of difficulty pushing loaded shopping trolleys around corners is also consistent with the diagnosis
Mr Zacharia has radiological evidence of a depressed fracture of the medial portion of the left tibial plafond. That injury will pre-dispose him to the development of early or accelerated post-traumatic osteoarthrosis of the ankle joint. His current symptoms and restricted range of left ankle motion are consistent with that diagnosis, as is the development of early osteophyte formation as shown on the recent lateral ankle radiographs.
Mr Zacharia has deformity and local tenderness at the site of fracture at the base of the left first metatarsal, the site of a fracture that probably reflects a variant of a LisFrand injury. His symptoms of early morning stiffness of the right foot are consistent with the advent of early arthritic changes, as is his need to walk with a support under his foot, and his experience that ‘sports type’ shoes gave him sufficient medial arch support. He has limited extension of the hallux, that may reflect involvement of the origin of the intrinsic muscles at the base of the first metatarsal, or tethering of the intrinsic muscles on the flexor aspect of the base of the first metatarsal.
Mr Zacharia also has symptoms, signs and radiological evidence consistent with the development of early post-traumatic osteoarthrosis of the left sacro-iliac joint. The latter would affect his standing ability and strength of back motion.
Although Mr Zacharia has a history of unrelated injuries, I do not believe that they impact on his current presentation.
Mr Zacharia’s injuries and symptoms have impacted upon his ability to participate in his pre-accident activities, as documented in the main body of my report, above. I believe that this history of a limited standing tolerance of one hour is consistent with a diagnosis of post-traumatic osteoarthrosis of the lumbo-sacral facet joint, and early development of post-traumatic osteoarthrosis of the left sacro-iliac joint, as is his history of inability to push a fully laden shopping trolley.
Mr Zacharia has radiological evidence of the development of early post-traumatic osteoarthrosis of the left ankle joint. He has noticeable wasting of the left gastrocnemius muscle. His history of weakness of the ankle is consistent with that diagnosis. He gives a history of severe aggravation of his left ankle pain if he ‘rolled’ (twisted) his ankle. Twisting his ankle in inversion would place the medial portion of the talus in the depressed portion of the tibial plafond, thereby reproducing his mechanism of injury, and aggravating his symptoms, which would be fully consistent with the diagnosis. The timing of his symptoms, in terms of when he first noticed them, are most likely merely coincidentally related to subsequent surgery on his ankle.
Mr Zacharia’s current clinical condition, as a result of his injuries, reflects something in the order of 5% loss of the full and efficient use of the right lower limb below the knee in relation to his right great toe fractures, 5% loss of the full and efficient use of the left lower limb below the knee in relation to his left ankle joint injury, 10% whole body permanent physical impairment and loss of physical function representing his pelvic ring disruption (including limited left hip adduction and symphysis pubis disruption) and 5% whole body permanent physical impairment and loss of physical function representing his back injury and restricted motion, based on the Guides to the Evaluation of Permanent Impairment of the American Medical Association. Please note that the assessment I make is one of physical impairment and not disability. As such it excludes factors such as pain, suffering and the socio-economic effects of the injury on the life of the individual, as well as non-medical factors. Consequently I have included a detailed description of the restrictions he suffers to his lifestyle so that, combined with the assessment of physical impairment, an assessment of the broader issue of disability can be made by the appropriate authority, which I believe should be the Judge.
In my opinion he will be restricted in his working capacity as a result of the injuries he has sustained. The injuries to his lower back and his left sacro-iliac joint involvement will impair his ability to undertake prolonged forward flexion, repetitive forward bending, lifting weights and prolonged standing. His ability to sit for prolonged periods of time will be limited and he will need to be employed in a job that allowed him to move around intermittently. He would not be fit to undertake work that required him to run. Consequently, it is my opinion that Mr Zacharia is not fit for his pre-accident employment and is not fit to lift rolls of paper weighing 20 kilograms (or more) and to manipulate them around in the course of his work. In making this statement, it is my opinion that his restricted functional working capacity is fully the result of injuries arising out of the accident on 26 September 1999.”

Since then there has been little change other than an improvement in the range of movement in his toe. Mr Pohl gave extensive oral evidence and took me through many of the x-rays and other studies. He emphasised that the plaintiff, at 35, already had arthritic degeneration of his left ankle and lower back, which will only get worse. There was no serious challenge to his views.
I conclude that the plaintiff will have gradually increasing pain in his back and ankle. He will not be able to stand for long periods. He will not sit for long without getting up to move around. He will not cope with jobs involving significant lifting, bending or twisting. He will not return to his trade. He will not play competitive cricket, football, or golf. He will be able to walk fair distances on flat, even ground, but, because of instability in the ankle, not over broken ground. Pain in his fore foot will increase. He will find it very hard to use a ladder.
I accept the evidence that he is now much less outgoing and gregarious. He keeps to himself more. He is unhappy with his lot. As his physical condition will not improve, his mental state is not likely to change much. Perhaps he will learn to accept it better. It is as likely that he will not and that he will have to be careful to avoid depression. While I hope he will learn to adapt better, I accept that life is not much fun.
He will not need further treatment in the immediate future. With time he will get more pain and may need analgesics (which he does not like to take), physiotherapy and the like. Mr Pohl says that there is a significant chance that, in the long term, it will be necessary to fuse the lower joint in his lumbar spine.
Dr Kelly examined and reported on the plaintiff at the defendant’s request. He does not appear to disagree significantly with Mr Pohl in regard to the nature and progress of his injuries. He is more optimistic about the plaintiff’s work capacity. He appears to reason from the remarkably good final positions achieved in re-aligning the various fractures that there is a lower level of disability than Mr Pohl suggests. It is a difference of emphasis, rather than a major disagreement. It appears that he takes a less serious view of the present and potential arthritic degeneration in back, ankle and foot.
Mr Pohl gave detailed evidence about this. He referred to extensive research in various parts of the world, as well as to the fact that the process is now evident – it is not just a future possibility. He took me through the x-rays, pointing to the various defects. He satisfies me that it is a serious problem now, and is one that will only become worse. The rate at which it will deteriorate would be accelerated by heavy use of those joints. To the extent to which he differs from Mr Kelly, I prefer the evidence of Mr Pohl.
Ms Jiranek, a psychologist with an interest in vocational advice and assessment reported on the plaintiff. She found him to be well-motivated and intellectually and emotionally suited to a variety of occupations. I accept that he has better chances of finding a niche than would many others with his physical limitations. But those limitations remain very significant. Potential employers will be cautious.
Ms Trankalis, occupational therapist, assessed the plaintiff’s physical capacity and limitations, as well as his former workplace. He is clearly not fit to return there. The limitations she found are what one would expect from Mr Pohl’s report. Dr Meegan’s reports are also consistent.
The plaintiff is an intelligent man and well motivated. I am sure he will do what he can, but he is very restricted. At least for the foreseeable future, he would be fit for work in which he can move around a bit, but not have to be on his feet all the time, and in which there is little lifting or bending. At present he is, on a voluntary basis, working in a relative’s CD shop, trying to learn that business. No doubt he could learn some accounting and business skills. He has been self employed in the past. He might make a go of some sort of retail business. I take notice of the fact that the failure rate for small businesses is high. A courier/delivery job not involving heavy lifting would probably be tolerable.
He has lost his trade. His job was secure in an apparently stable business. He had prospects of promotion and of pay increases. Persons with his qualifications, skills and experience are in great demand. His prospects were good. He has applied without success for many jobs. His CV cannot conceal the fact he has not worked for four years. That gives rise to questions. Even though he might cope with the jobs he seeks, it is understandable that employers prefer completely fit men.
He has needed assistance from, in particular, his mother. Some years ago he brought his parents to Adelaide after his father fell ill. Eventually he died. The plaintiff continued to live with his mother. She did and does more for him because of the results of the accident, while he did and does less for her. He is to be compensated for the value of his needs over and above those that would have been met in any event within the normal give and take of a family life, but also taking into account his diminished ability to contribute his own share.
I now turn to figures.
For his non economic loss (past and future) I fix the number 35 on the scale 0-60. The multiplier for 1999 is $1,560, giving a figure of $54,600.
Unpaid special damages (and I do not have to include those which have been paid) are agreed in the sum of $12,412.55.
The plaintiff called evidence of what another person of like qualifications and skills has actually earned with the plaintiff’s former employer in, essentially, the same job. There are few contingencies to account for. The plaintiff may have persuaded his boss to increase his pay – he was trying to. There is some chance he could have been promoted. The business has continued and is flat out. There is no reason to think he would have been laid off. If he had been, he would have been in demand. No supervening event has occurred which is likely to have interfered with the plaintiff’s ability to work. The plaintiff had thoughts of going to work with a friend who was starting a business as an erector of steel frames for houses. That business has succeeded and, in it, the plaintiff may well have earned more than as a printer. Taking all of this into account, I think that the earnings of a comparator provide a good guide. But for the fact that certain superannuation figures have been calculated, I would have rounded the figures – but, for that reason, I give the exact figure, which is $132,711.25. I do not propose to pretend further exactness by calculating a further figure from 4 August to judgment.
On that figure, it is agreed that the present value of lost superannuation contributions is $17,350.97.
I turn to the future.
It is agreed that the cost of a lumbar fusion at present is about $20,000. I assess on the basis of a 50% chance that it will be needed in 20 years. At 5%, the present value of $10,000 in 20 years is $3,769. Allowing a little for analgesics, etc., I assess future special damages as $4,000.
Future loss of earning capacity, as reflected in lost earnings is much more speculative. There must be the usual contingencies associated with the possibilities of injury or illness in some non-compensable circumstance, or of loss of employment, which apply to anyone. A particular contingency here is that the plaintiff has a pretty unlucky record as a motor cyclist and that activity seems likely to have continued. I expect that the occupation of a printer is as subject to technical change as other trades. Change may create opportunity – or it may lead to loss. He may have made more as a steel erector. But one can no longer simply assume over 30 years of continuous employment in the same job. That is now rare.
In the case of the plaintiff, there was pre-existing weakness in the left elbow and hand. It is going to get worse. Surgery may be needed. Not only as a printer, but in many other occupations that is a handicap.
If one simply projects a net weekly loss of $744.45 (which is what the comparator now earns) from 4 August 2003 to age 65, one gets a figure of $588,859.95. If I were to assume that, because of his elbow and hand, he would in 20 years have lost $100,000, that would have a present value of $37,690. Allowing for that and other imponderables, and recognising that not all contingencies are adverse, I value his future career, but for the accident, at $500,000.
I must assess what he is likely, in fact, to earn. My best guess is that he will earn somewhat less than half of that. I assess future loss at $300,000.
In a schedule prepared for the plaintiff, on a net future loss of $588,859.95, it was calculated that future superannuation loss would be $69,038.49. The calculation 300,000 divided by 589,000, multiplied by 69,000 gives the figure of $35,144. If that is accurate enough for the parties, I will assess future loss of superannuation contributions in that amount. If not, they have liberty to calculate a more precise figure.
Calculations are put forward for the value of voluntary services needed by the plaintiff, based on certain agreed hourly rates and on the assumption that he has needed generally two hours per day of assistance, rising to four hours per day for periods after the accident and subsequent surgery. The claim is limited to the period up to February 2002. As stated, the claim comes to $34,444. The only evidence to support it came from the plaintiff. His mother was not called. No sufficient detail was given to enable me to determine whether those hours were all necessary, nor whether they (partly) come with what could be regarded as normal give and take. Despite that, I have no doubt that there was a substantial need, mostly met by his mother. I fix an arbitrary figure of $20,000.
The total of these figures is $576,218.77.
I summarise them:
Non economic loss  $ 54,600.00
         Past special damages (unpaid)   12,412.55
         Future special damages  4,000.00
         Past loss of earnings   132,711.25
         Future loss of earning capacity   300,000.00
         Past lost superannuation contributions   17,350.97
         Future loss of superannuation contributions               35,144.00
         Voluntary services      20,000.00
  Total  $576,218.77
I will hear the parties on interest, costs and, if desired, on the calculation of future loss of superannuation contributions.

[2003] SADC 120

18 August 2003