Zavodny v Couper - [2020] QSC 42

SUPREME COURT OF QUEENSLAND

CITATION:

Zavodny v Couper & Anor [2020] QSC 42

PARTIES:

ALAN FRANK ZAVODNY

(Plaintiff)

v

KEVIN RAYMOND COUPER

(First Defendant)

and
QBE INSURANCE (AUSTRALIA) LIMITED

(Second Defendant)

FILE NO/S:

SC No 523 of 2016

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:
Supreme Court at Cairns

DELIVERED ON:

13 March 2020

DELIVERED AT:

Cairns

HEARING DATE:

13, 14, 18, 19 November 2019

JUDGE:

Henry J

ORDERS:

1. Judgment for the plaintiff against the second defendant in the amount of $633,987.57.

2. I will hear the parties at 9.15 am 1 April 2020 as to costs, if the parties have not by then informed the Registry that costs are agreed.

CATCHWORDS:

TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – GENERALLY – where plaintiff travelling by bike along road – where parked car reversed quickly from parking spot on side of street – whether plaintiff was keeping adequate lookout – whether plaintiff travelling at excessive speed – whether plaintiff ought to have been aware he was not readily visible to drivers of parked vehicles

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – where plaintiff had history of work as master of fishing vessels – where plaintiff injured ankle and shoulder when falling off bike caused by negligence of first defendant – where plaintiff developed adjustment disorder with depressed mood – where liability admitted – where quantum of past and future earnings in issue – whether injuries and psychiatric condition prevent plaintiff returning to chosen occupation – whether court can rely upon plaintiff’s assertions of what employment opportunities he would have perused

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – DAMAGES FOR GRATUITOUS SERVICES – where plaintiff received past care and assistance – whether past care and assistance meets threshold in s 59 Civil Liability Act 2003 (Qld)

Civil Liability Act 2003 (Qld), s 55, s 59

Civil Liability Regulation 2003 (Qld)
Transport Operations (Road Use Management—Road Rules)
Regulation 2009 (Qld), s 129(1)

Brown v Holzberger [2017] QCA 295, cited
Boon v Summs of Qld Pty Ltd [2015] QSC 162, cited
Minchin v Public Curator of Queensland [1965] ALR 91, cited
Nunan v Gerblich (1974) 10 SASR 39, cited
Calverly v Green (1984) 155 CLR 242, distinguished
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, considered
Guidera v Government Insurance Office (NSW) (1990) Aust Torts Reports 81-040; (1990) 11 MVR 423, considered
Rossi v Westbrook and Anor [2011] QSC 311, cited

COUNSEL:
A R Philp QC with R Armstrong for the plaintiff

M A Jonsson QC with R Morton for the defendants

SOLICITORS:
Roati Legal for the plaintiff

Barry.Nilsson for the defendants

Introduction

The plaintiff Mr Zavodny was injured when he fell from his bicycle when trying to avoid a vehicle being reversed negligently by the first defendant Mr Couper. He alleges his injuries, particularly a consequential impairment of his left ankle, have left him unable to continue in his employment as a captain of game fishing boats. He claims damages for his injuries and consequential loss against Mr Couper and Mr Couper’s insurer, the second defendant, QBE Insurance (Australia) Limited (“QBE”).
His action is brought against Mr Couper and QBE, as required by s 52 Motor Accident Insurance Act 1994 (Qld). Section 52(4) of that Act requires, if judgment is given in favour of Mr Zavodny, that it be given against QBE and not Mr Couper.
It is admitted that the accident in which Mr Zavodny fell from his bicycle was caused by the negligence of Mr Couper. An allegation of contributory negligence was pursued at the four-day trial but, as will be seen, it lacked substance. Indeed, Mr Couper was not even called as a witness at the four day trial of this matter.
It is also not in issue that Mr Zavodny suffered injury and loss as a result of the accident. However, there is little common ground as to the true consequences of Mr Zavodny’s injuries. The quantum of all heads of damage is in dispute.
Mr Zavodny’s life before the accident
Mr Zavodny is a single man. He was born on 20 October 1954. He is now 65 and was 59 at the time of the accident on 10 November 2014.
He left school in year 9. He holds no formal trade or tertiary qualifications.
Mr Zavodny has a life-long interest in fishing. He worked part-time in that field while growing up in Fremantle. After leaving school he worked as a junior clerk and then joined the Army as an infantryman based in Townsville. After leaving the Army in 1975 he worked as a commercial fisherman and deckhand on game fishing boats, travelling widely in that line of work.
In the 1980’s Mr Zavodny worked as a labourer knife hand at a meatworks and also worked as a deckhand for various marine companies. From 1990 he worked as a ship’s master and marine engineer. He progressed to specialising in operating game fishing boats, which he describes as his life’s passion.[1] He was successful in game fishing tournaments and was sought after as a game boat captain, being booked months and sometimes years in advance. At the time of the accident he was still a self-employed vessel master, working for variable periods on individual contracts for marine operators and charterers around Australia.
[1]Ex 1 [5].
Mr Zavodny was in generally good health. He had previously suffered some injuries and experienced some recurring ailments but he was prima facie fit to continue in his field of work. Whether he had degenerative ailments which would have precluded him working in the long run is dealt with later.
Mr Zavodny did not have a permanent residence but was living in Townsville at the time of the accident in September 2014. At that time he was intending to move to Perth in December 2014, taking up a job offer from Mr Guy Travis to manage fishing vessels there. He wanted to do so in order to be closer to his sister, who resided in Perth and whose husband was terminally ill. Those plans were thwarted by the accident.
The Accident
The accident occurred at about 11.55 am on 10 September 2014, on McIlwraith St, South Townsville, near a shop called Ede’s. Mr Zavodny was riding his electric bicycle along McIlwraith St in a westerly direction, intending to shop at Ede’s. McIlwraith St is a wide, two-way street, with single lanes heading in both directions. It is paved with bitumen extending from the footpath edge. There are spaces for nose-in vehicle parking at the roadside and there is substantial space between the rear of those parking bays and the left edge of the traffic lane. Mr Couper’s Holden Colorado motor vehicle was parked in one of the bays near Ede’s, along with other parked cars.
Mr Zavodny was riding to the left side of the west bound traffic lane as he approached Ede’s. He had slowed his speed, his intention being to pull into a parking bay near the front of Ede’s. He was drawing level with Ede’s when Mr Couper’s vehicle reversed out, without warning, immediately in front of Mr Zavodny’s line of travel.
Mr Zavodny swerved hard right to avoid colliding with the vehicle but as a result the bike jack-knifed and he fell to the bitumen, sustaining injuries. The evasive action, fall and injuries were caused by Mr Couper reversing his vehicle into Mr Zavodny’s path of travel.
It is common ground that Mr Couper owed a duty of care to other road users, including a duty to reverse safely, keep a proper lookout and give way. Mr Couper’s reversing manoeuvre breached that duty. His breach caused Mr Zavodny to fall and sustain injury. None of this aspect of the case is in issue, save for an allegation of contributory negligence.
Contributory negligence
The allegation of contributory negligence asserts, in summary, Mr Zavodny was not keeping adequate lookout, was travelling at too excessive a speed to negotiate around reversing vehicles and ought to have been aware he was not readily visible to the drivers of vehicles parked at the street side. It is also alleged a reasonable person in Mr Zavodny’s position would have been travelling in or around the centre of the left-hand side carriageway of the street in order to be more visible and allow sufficient time to negotiate safely around reversing vehicles.
Pursuant to s 23(2) Civil Liability Act 2003 (Qld) the standard of care required of Mr Zavodny was that of a reasonable person in his position, with the matter to be decided on the basis of what Mr Zavodny knew or ought reasonably have known at the time. If Mr Zavodny did fail to take reasonable care, s 10(1) Law Reform Act 1995 (Qld) would require a reduction of damages recoverable for Mr Couper’s breach to the extent considered just and equitable having regard to Mr Zavodny’s share in responsibility.
Mr Couper’s vehicle was the western most of three cars parked in bays near the front of Ede’s. It may readily be inferred that a reasonable person in Mr Zavodny’s position ought to have known of the presence of those parked vehicles, in the vicinity of the very shop he was approaching from the east, and of the possibility that one of the vehicles might reverse. His duty in controlling his vehicle was to make reasonable allowance for that possibility. The qualifying of Mr Zavodny’s obligation as an obligation to make “reasonable” allowance caters for the variability and thus foreseeability of the manoeuvre by which a vehicle may reverse.
For example, it is well within the ordinary experience of road users that when they are travelling behind a row of vehicles parked nose-in, they might not be seen by one of the drivers of such vehicles, who may commence reversing gradually, that is, reversing slowly or edging outwards. Cross-examination of Mr Zavodny exposed some doubt as to whether the vehicles in this case were parked nose-in at 90 degrees to the kerb or nose-in at an angle to the kerb.[2] Mr Zavodny’s recollection in evidence-in-chief was that the vehicles had been parked at 90 degrees to the kerb[3] but he acknowledged a sketch which had been inserted in his notice of accident claim form[4] pictured the reversing vehicle at an angle.[5] Google Earth photographs introduced into evidence show the vehicle parking to be at 90 degrees to the kerb, but there was no independent evidence as to whether that is how the lines were marked back at the time of the accident. In any event, this issue is a diversion of no moment in the present case. On either view of the matter, Mr Zavodny was approaching a line of cars that were parked nose-in. There was obvious potential for Mr Couper’s view of oncoming traffic to be obscured until he emerged somewhat from the line of parked vehicles, such that it would be unremarkable if his vehicle started to reverse or edge out slowly.
[2]T1-57 L15 – T1-58 L35.
[3]T1-25 L6.
[4]Ex 39 p 18.
[5]T1-58.
The creeping initiation of a reversing manoeuvre involves a degree of caution which is commonplace for drivers whose vision of oncoming road users may be partially obscured until emerging a little from the line of parked cars. It is uncontroversial that Mr Zavodny ought reasonably have foreseen that one of the parked vehicles might commence reversing in such a manner as he was approaching. It is uncontroversial that a reasonable person in his position should have been attentive to those vehicles and travelling at a speed and proximity from the rear of them which made enough allowance to safely avoid an accident in the event of such a gradual reversing manoeuvre. However, Mr Couper did not reverse in that manner.
Mr Zavodny explained Mr Couper’s vehicle “just backed out”.[6] He said:
“[G]enerally, when someone backs out, I would think that … I mean, I always do it. I back out a little bit and check. He didn’t. He just kept coming. He didn’t stop to investigate what was going on. He just drove out. I had no time to hit the horn, do anything.”[7]
The overall effect of his evidence was that the vehicle did not emerge slowly or gradually. Rather, it reversed abruptly out in front of him.
[6]T1-37 L37.
[7]T1-40 LL41-44.
An attempt was made in closing submissions to invite the inference Mr Couper’s vehicle had crept out a short distance and stopped. This was based on a remark by Mr Zavodny that he had “managed to get past” Mr Couper’s vehicle, as if that somehow meant the vehicle stopped. The context in which that remark was made is illuminating. What Mr Zavodny said was:
“The bike’s big enough to be seen and I think I was far enough out – well, I missed him. I managed to get past him. I’d been any closer in, I would have hit him for sure so I think I was at a good distance from the rear of those cars. But as I said, he drove out in front of me. What was I to do?”[8]
Clearly his reference to getting past him was a reference to avoiding actual contact as part of his unsuccessful evasive manoeuvre. The above passage makes it abundantly clear, contrary to the inference sought, that Mr Couper’s vehicle did not stop and rather it kept coming.
[8]T1-40 L10.
Mr Zavodny was the only witness who testified to the circumstances of the accident. He did not testify that he was inattentive or was travelling quickly or that he was travelling close to the rear of the parked vehicles.
Mr Zavodny testified in evidence-in-chief that earlier in McIlwraith St he had been travelling at around 15 km per hour, or “maybe a bit faster”, but had slowed to around 10 km per hour as he approached Ede’s.[9] It is inherently likely that Mr Zavodny did slow in his approach to Ede’s because he would be stopping there and on his own account was looking for a parking bay as close by as possible.[10]
[9]T1-25 L16.
[10]T1-35 L16.
In cross-examination Mr Zavodny conceded stating to a police officer at the scene that he “was travelling at 15, 20 km per hour along McIlwraith St” but he also explained he had told the police “more than that”.[11] His statement to police is not inconsistent with his estimate in chief of the speed he had been travelling at along McIlwraith St prior to approaching Ede’s. It is a higher estimate than the speed he testified slowing to in approaching Ede’s but the rest of what he told police was not explored. Moreover, these are only estimates, there being no evidence Mr Zavodny looked at a speedometer or even had such a device on his bike. I accept he was travelling sufficiently slowly in the circumstances and certainly slowly enough to take safe evasive action had Mr Couper’s vehicle been reversed in a gradual manner.
[11]T1-33 LL27-33.
As to Mr Zavodny’s proximity to the rear of the parked vehicles, he testified to riding in the left side of his traffic lane,[12] which, as he put it in the above quoted passage, was “far enough out” from the rear of the parked cars.[13] Such a path also conformed with his legal obligation under s 129(1) Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) to ride as near as practicable to the far left side of the road. The pleaded allegation that Mr Zavodny should have been riding in the centre of his traffic lane in order to be more visible and allow sufficient time to negotiate safely around reversing vehicles overlooks the spatial configuration of the street. The street is broad. While there was no evidence of the measured distance between the edge of the traffic lane and the rear of the parked vehicles, it is apparent from the exhibited Google street map photographs that it would have been a substantial distance.[14] Riding at the centre of, rather than the left side of that lane, as Mr Zavodny was, would not have made a material difference to his prospective visibility and time to negotiate around reversing vehicles.
[12]T1-25 L13.
[13]T1-40 L9.
[14]Ex 31.1, 31.2; T1-38 LL5-33.
Of course, if Mr Zavodny had left the edge of the lane where he says he was riding, and ridden closer in at the rear of the parked cars in his approach to Ede’s, that would likely have reduced his visibility to drivers of those cars and his capacity to take evasive action. However, there is no evidence that he did so. His evidence, which I accept, and which was affirmed without contradiction in cross-examination,[15] is that he was riding on the left side of the laneway. While there is no evidence that there was a side lane marking, it appeared he was referring to an alignment running at the left side of a traffic lane of ordinary width. There is no evidence that he had ridden away from such an alignment, heading further left towards the rear of the parked cars.
[15]T1-41 L15.
In the absence of evidence that Mr Zavodny was not keeping a proper lookout or was, in the circumstances, travelling unreasonably fast and close to the rear of the parked cars, there is no basis to infer such facts merely because of the fact that Mr Zavodny failed to avoid Mr Couper’s reversing vehicle without incident. The position might be different if there was evidence that Mr Couper’s vehicle was creeping slowly out, thus providing some indication to reasonably attentive road users that his vehicle was reversing. If that is how the vehicle had been reversed out it would be difficult to imagine how the accident could have occurred in the absence of some accompanying negligence on Mr Zavodny’s part. However, that is not the way the vehicle was reversed out.
Mr Zavodny was keeping a proper lookout and was travelling at a speed and distance from the parked vehicles which made reasonable allowance for the foreseeable possibility that Mr Couper’s vehicle may reverse from its bay. Mr Zavodny’s obligation to make reasonable allowance for that possibility did not extend to allowing for the prospect of an abrupt reversing manoeuvre of the kind undertaken by Mr Couper.
Mr Zavodny did not fail to take reasonable care. There was no contributory negligence on his part.
I record for completeness that the state of the adduced evidence made it unnecessary, in reaching the above conclusion, to consider the significance of the unexplained absence of testimony from Mr Couper.[16]
[16]As to which see Jones v Dunkel (1959) 101 CLR 298.
Injuries suffered
As a result of the accident Mr Zavodny suffered a deep wound near his left ankle and a fracture to his left medial malleolus, the bony protrusion of the side of the ankle. He had right and left sided neck pain, as well as chest and rib tenderness and numbness to his right fingertips.
He also sustained soft tissue injuries to the neck and, more significantly, to the left shoulder.[17] The onset of the shoulder injury, its extent and connection with the accident is in issue and discussed further below.
[17]Ex 1 [8].
Mr Zavodny did not enjoy a complete recovery from his injuries. Indeed, the effects of his ankle injury were compounded by the development of infection in the form of osteomyelitis. It is common ground that the osteomyelitis and its consequences were causative consequences of the accident and Mr Couper’s negligence.
It is also common ground that secondary to his physical injuries Mr Zavodny also developed an adjustment disorder with depressed mood.
Mr Zavodny’s life after the accident
The ensuing summary of Mr Zavodny’s life after the accident derives from his quantum statement, his oral evidence and the evidence of some lay witnesses. The views of the expert witnesses about Mr Zavodny’s injuries and their impact on his life will be dealt with later.
Mr Zavodny was attended by ambulance officers and taken to hospital after the accident. He was operated on and discharged on 11 September, using crutches. He stayed at the home of his friends, Dr and Mrs Savis, on Magnetic Island. The wound to his ankle became infected, his ankle swelled. He was in great pain. Antibiotics did not resolve the infection. Eventually a CT scan revealed the presence of osteomyelitis, a bone infection, near the site of his left ankle injury.

He was re-admitted to hospital for treatment from 8 October 2014. He was subjected to repeated debridement, including of bone, and split skin grafting. He was discharged on 21 October 2014, staying with his former partner, Ms Williams, until 20 December 2014. During that period he underwent 60 sessions of hyperbaric oxygen therapy to aid tissue repair at the ankle.
The hyperbaric oxygen therapy resulted in some deterioration of Mr Zavodny’s vision and cataracts but reliance upon that as a causal result of the accident was not pursued. The deterioration is adequately countered by the use of corrective lenses and thus irrelevant to any assessment of Mr Zavodny’s capacity to work.
Mr Zavodny stayed with the Savis’s from 20 December 2014 during Christmas and from 28 December 2014 to 15 February 2015 he resided at Lucinda at a cottage owned by Mrs Jane Roati. He repeatedly travelled to Townsville for recuperative medical care.
He developed swelling and tenderness to the left elbow associated with overuse of crutches as his ankle wound healed. The wound healed by 23 January 2015 but swelling and tenderness continued, and he still used a compression bandage for some further time.
It is clear Mr Zavodny suffered considerable pain and impaired mobility in connection with his ankle injury. Initially his ankle was in a moonboot and later in a cast. He needed crutches and later a walking stick to aid movement.
Mr Zavodny travelled to Perth on 16 February 2015. His brother-in-law was gravely ill and died on 17 February 2015. While in Western Australia he and Mr Thomson took the vessel Azure from Fremantle to Exmouth.[18]
[18]T1-67 L 3.
Mr Zavodny returned to Townsville on 18 April 2015. According to his quantum statement he was then staying with the Savis’s although his notice of accident claim form signed 22 April 2015 recorded his home address at 3/136 Patterson Parade, Lucinda.[19] He explained in cross-examination that the Patterson Parade address was the unit of someone known to him where he left property and that Mrs Roati’s cottage at Lucinda, at which he had earlier stayed, was located at 31 Gossner Street.[20] It appears likely that he stayed with the Savis’s through to 26 April 2015.
[19]Ex 39 p 17.
[20]T1-62 LL1-11.
He returned to Western Australia on 26 April 2015 and attempted a work trial there. It will be recalled he had intended to commence work for Mr Guy Travis from late 2014 but he was left in no fit state to do so because of the accident. Mr Travis and Mr Dave Thomson arranged the April work trial but it was unsuccessful because of Mr Zavodny’s physical limitations resulting from his injuries.
Mr Thomson gave evidence that Mr Zavodny did come to Western Australia on a number of occasions to attempt to work with him and Mr Travis. In 2015, he recalled this involved the movement of a vessel, the Azure, from Perth to Exmouth,[21] possibly in February, and at a later stage, probably in April, the participation of that boat in an earlier postponed annual game fishing competition in Exmouth.[22] He testified of these occasions that he had to help Mr Zavodny skipper the boat because Mr Zavodny was not confident or capable of being the skipper because he kept falling over and tripping and could not stand for any length of time.[23] Mr Thomson observed Mr Zavodny encountered difficulty driving the boat, particularly backwards, backing up on fish and could not do the mechanical work, being physically unable to manouvre into the engine room.[24]
[21]T2-85 L42.
[22]T2-81 LL23-46.
[23]T2-81 L46 – T2-82 L14.
[24]T2-82 LL15-23.
Mr Zavodny returned to Townsville on 14 July 2015 and thereafter resided at Mrs Roati’s cottage, receiving some care and assistance from her.
In August 2015 he tried to skipper the vessel of Pauly Dametto in the Lucinda Light Game Fishing Tournament, but found he was unable to perform the role and Mr Dametto “took it over”.[25] Mr Dametto gave evidence confirming Mr Zavodny did not skipper the boat,[26] explaining Mr Zavodny could not stand up properly, particularly when conditions became “a bit rough” and, because he was “very wobbly on his feet”, could not tend to tasks such as rigging bait on a rocking boat.[27]
[25]T1-68 L46 – T1-69 L7.
[26]T2-75 L30.
[27]T2-76 L20, T2-78 L2.
Mr Zavodny made another attempt to return to work as a vessel master with Northern Conquest Charters in 2016 but once again could not manage his ordinary work tasks because of the limitations resulting from his injuries. In cross-examination he explained that because he had not performed well he did not charge Northern Conquest Charters.[28] His limitations included difficulties in standing, climbing and manoeuvring amidst tight spaces. He attended upon a physiotherapist after this trip, reporting that by the time he had returned home from the trip he was experiencing burning pain on top of his shoulder.[29]
[28]T1-71 L17.
[29]Ex 34; T1-70 L1 – T1-71 L23.
Mr Zavodny unsuccessfully attempted a further work trial as a vessel master with Mr Thompson in Western Australia in November 2016. He was offered full-time permanent employment by Mr and Mrs Thomson in December 2016[30] but was unable to take up that written offer because of the pain and impairment caused by his injuries. That offer was for Mr Zavodny to run and manage the operations of the Thomsons’ vessel Azura as well as Mr Travis’s vessel, the Alura, whereas the offer of work Mr Zavodny would have taken up at the end of 2014, but for the accident, related only to Mr Travis’s vessel, the Alura.[31]
[30]Ex 2.
[31]T1-72 L20, T2-4 L29.
Mr Thomson agreed in cross-examination that at the time of writing the December 2016 letter of offer he had had an opportunity to assess Mr Zavodny’s recovery from his injuries.[32] Counsel for the defendants later tried to rely upon that as evidence that Mr Thomson must have considered Mr Zavodny no longer lacked capacity for the work. Yet he was not asked about that when cross-examined. Moreover, there is no suggestion of Mr Thomson having witnessed Mr Zavodny’s capacities other than the occasions when Mr Zavodny had been unsuccessful in trying to perform the Master’s role. Indeed, Mr Thomson’s letter included the following:
“… We realise that you could not accept our previous offers to work on Alura and Azura. However, we are hopeful that you have made some recovery from your accident. …
If you are still unsure of your physical capabilities at present, we are prepared to entertain a three month trial period to enable you to assess your suitability for the role.”[33]
[32]T2-86 L42.
[33]Ex 2.
Such inclusions hardly suggest any confidence that Mr Zavodny had recovered and become fit for work. Mr Thomson testified his written offer was not taken up at that time, explaining he understood Mr Zavodny at that time wanted to work over on the east coast and or had commitments.[34] That aspect of his evidence was not further explored and I accept Mr Zavodny’s evidence that his reason for not taking up the offer was because of his lack of physical capacity to perform the work.
[34]T2-84 LL7-10.
In March 2017 Mr Zavodny attempted a further work trial as vessel master with Mr Thomson but again found he was unable to properly perform his work because of the impact upon him of his injuries. In cross-examination he explained that he again did not charge for his work because he was not able to do the job properly.[35]
[35]T1-72 L7.
Mr Zavodny was diagnosed with hairy cell leukaemia at the beginning of 2016. He elected for observation of the condition and it did not interfere with his capacity to work at that stage. After his blood count became more concerning he elected to undergo a course of chemotherapy in November 2017 and was advised not to work during the chemotherapy and for at least three months afterwards.[36] Mr Zavodny’s quantum statement does not claim economic loss for the 15[37] week period when he was, hypothetically, “off work to undergo chemotherapy treatment”, from 23 October 2017 to 5 February 2018.[38] It is unlikely that period was solely the period of the treatment and it likely includes all or most of the three months after it, during which he was advised not to work. Indeed exhibit 20 refers to testing in February 2018, “three months post chemotherapy”, as revealing the disease to be in complete remission. Mr Zavodny explained that during his recuperation he had told his treating doctor that he “felt pretty good” and wanted to return to work as soon as he could and was told by his doctor that he could do so if he felt up to it.[39] I accept 15 weeks is a reasonable estimate of the period when he would have been unfit for work regardless of the accident’s impact.
[36]Ex 20.
[37]The quantum statement incorrectly stated this was 11 weeks.
[38]Ex 1 sch A.
[39]T2-21 LL8-15.
In February 2016 Mr Zavodny commenced employment as a casual research assistant in fishery monitoring for the Department of Agriculture and Fisheries. That work involves monitoring boat ramp activities at Lucinda. It is not physically demanding but is considerably less remunerative than work as a vessel master.
Mr Zavodny’s left ankle injury continued and continues to be a significant problem in his life. On his account he continues to suffer pain, stiffness and swelling to the left ankle with pain aggravated by walking, standing, squatting, climbing and lifting. He explained that aggravation takes the form of a hot, sharp stabbing pain and severe cramping.
His left ankle is seriously scarred as a result of the accident and the saga of consequent infection and medical treatment. Parts of the scars are sensitive to touch. His left foot is numb along the instep onto the sole. His left thigh is also scarred from skin grafting for the ankle. His left foot is discoloured, his left ankle is swollen and he asserts he has wastage to his left thigh and calf.
Mr Zavodny’s quantum statement explains that his ankle injury has left him with poor balance in his left leg. His left ankle feels unstable. He has difficulty accessing inclines and declines and negotiating uneven surfaces. He can walk on flat terrain for about 15 minutes. He cannot run or jump due to left ankle pain. At times he finds he walks with a limp and needs to use a walking stick to assist his mobility. While he drives an automatic transmission vehicle, he finds he can only drive for about 45 minutes before experiencing cramping in his left ankle and left foot.
The progress of Mr Zavodny’s shoulder injury was not addressed in any detail in his quantum statement.[40] That statement merely records that symptoms in his left shoulder become more pronounced after he returned to work at sea.[41] According to his quantum statement, he continues to suffer from intermittent sharp pain in his left shoulder which is aggravated by weight bearing, gripping and lifting. The shoulder pain is said to radiate down his left arm when it becomes worse. Mr Zavodny’s quantum statement also describes him experiencing intermittent neck pain a couple of days a week with the pain being aggravated and extending into his head as a result of prolonged bending.[42]
[40]Ex 1.
[41]Ex 1 [26].
[42]Ex 1 [32].
Without minimising the significance of those upper body problems, it is obvious from Mr Zavodny’s testimony, that the most significant impact upon his capacity to work has been his ankle injury.[43] While his shoulder injury diminishes his capacity on vessels to manoeuvre around enclosed spaces and hold on when climbing, that capacity is in any event inadequate by reason of his ankle injury.
[43]T1-26 – T1-32.
On Mr Zavodny’s account his ankle injury has deprived him of the good balance, or sea legs, mariners’ need to move and climb about a moving vessel effectively, including over, up and down damp decks, gunwales, steps and ladders. The absence of sensation under his foot impairs his awareness of when his foot is touching a surface when climbing and moving about on vessels. It means he stubs his foot more often and no longer jumps the short distances he ordinarily did in getting on and around vessels. His ankle injury makes it more difficult to bear heavy loads about vessels. It also makes it very difficult to climb up and down ladders and perform tasks standing in elevated locations, such as flybridges and marlin towers. The injury also impairs his capacity to effectively operate the boat when at the wheel, in particular when having to stand up to perform the task, often in rough water, and operating the boat when trolling and reversing up onto a fish which an angler is in the process of fighting. His ankle injury impairs his ability to manoeuvre into and around engine rooms and other confined spaces which must be accessed to tend to common servicing and repair tasks. For example, squeezing into a corner to service an exhaust system, crawling under hosing and cylinder heads, getting under battery systems, moving about to work on or replace pumps and conducting oil changes are all tasks Mr Zavodny is not agile enough to perform effectively anymore because of his ankle injury. Mr Dametto gave evidence corroborating the fact that Mr Zavodny’s ankle injury impairs his capacity to access confined spaces to tend to equipment on board.[44]
[44]T2-76 L44 – T2-77 L6.
On Mr Zavodny’s account, which I found credible, the ankle injury has such multi-dimensional adverse consequences for Mr Zavodny on board vessels that it is difficult to conceive of any realistic form of paid seafaring work on vessels for which Mr Zavodny would be physically competent.
Mr Zavodny rejected the suggestion in cross-examination that he had been selective about the contracts he had attempted to take on since the accident. I accept his evidence of his repeated attempts to return to work as a master and that they failed because of his incapacity, caused by his injuries, to perform the duties of that role.
Mr Zavodny has suffered from disturbed sleep since the accident, finding it difficult to find a comfortable position to sleep in because of his pain. He experiences fatigue during the day because of his disturbed sleep patterns. His injuries have interfered with his sex life in that his ankle pain limits positioning and his pain and mental state have left him with a reduced libido. He experiences difficulty concentrating and has suffered from low moods, anxiety and feelings of depression since the accident.
Mr Zavodny considers his injuries have placed increased stress and strain on his personal relationships and he is generally more socially reclusive than prior to the accident. He was taken in cross-examination to the recording of an appearance by him in a television interview conducted by media personalities Hamish and Andy.[45] The content of that interview was of no particular moment in this case. This is not a case in which the psychological impact is said to be so crippling that Mr Zavodny would be unable to travel and undertake an interview of the kind in question.
[45]T1-53; Ex 38.
Mr Zavodny evidently derived great pleasure and satisfaction from successfully pursuing his lifelong employment dream as a vessel master and is distraught about his incapacity to pursue that vocation because of his injuries.
Mr Zavodny aspired to physical fitness prior to the accident and enjoyed swimming and attending gym for exercise. He now finds that swimming aggravates his left shoulder and left ankle and he experiences difficulty kicking because of his ankle injury. He still pursues fitness by attending gym but is restricted in the gym work he can do because of his injuries. He has difficulty lifting weights and taking loads through his left leg. Much of his gym work is focussed upon upper body work, though he is limited to using light weights.
My overall impression of Mr Zavodny’s evidence about the impact of his injuries upon his work and life is that it was credible and reliable, subject to a minor qualification. That qualification is that he at times had difficulty in recalling the precise timing and sequence of some events, particularly travel, work trials and when and where he resided.[46] That coincided with an obviously frustrated demeanour on his part. It appeared he was doing his genuine best to recall such detail. In any event those difficulties were, in the broader context of the case, of minor significance and did not, in my view, compromise his broader credibility or reliability.
[46]Eg T1-61 L41, T1-67 L30, T1-68 L12 (where the transcribed words “coming out with a high level of certainty that his demeanour obviously reflects” should read “coming out with a higher level of certainty than his demeanour obviously reflects”).
It remains to have regard to the expert evidence, in assessing the true impact of Mr Zavodny’s injuries. However, my strong impression of Mr Zavodny’s evidence, which was well tested by cross-examination, was that Mr Zavodny has earnestly pursued his recovery and physical fitness. It appeared from his evidence that, far from being a malingerer, he has been genuinely committed to returning to his beloved field of work. That he has been unsuccessful in doing so is obviously a source of considerable frustration to him.
Ankle injury
Mr Zavodny adduced evidence from a variety of expert witnesses. Those whose evidence touched upon the ankle injury were Dr Ronald Thomson, Dr John Maguire, Mr Mark Scalia, Ms Daina Clark and Associate Professor Richard Lewandowski. Of the defence experts, those whose evidence was relevant to the ankle injury were Dr John Fraser and Ms Sanja Zeman. Generally speaking, the plaintiff’s experts were more favourable for the plaintiff than the defendants’ experts and vice versa. While the experts were drawn from different fields of expertise, it is instructive to review their opinions chronologically, ending with the expert who examined Mr Zavodny most recently.
Dr Ronald Thomson
Dr Ronald Thomson, a consultant surgeon engaged for Mr Zavodny, provided a report[47] and a supplementary report,[48] each dated 16 August 2016, after an examination on the same date.
[47]Ex 3.
[48]Ex 4.
In his report Dr Thomson noted Mr Zavodny had presented with an extremely high level of demonstrated disability to the left ankle area. He opined of the ankle:
“The joint is stiff, there is a slight varus tilt of the left foot causing him to take weight on the lateral side of the foot, he has a pronounced antalgic gait and there is reduction in strength/power of the left lower limb and the whole part is substantially unreliable.”[49]
[49]Ex 3 p 3.
Dr Thomson noted Mr Zavodny’s pronounced antalgic gait was associated with excessive weight bearing on the lateral aspect of the left foot. He noted some left thigh and left calf muscle wasting, with each area measuring one centimetre less in circumference than the corresponding location on the right leg. Conversely, the left ankle was swollen, with its circumference being one centimetre greater than the circumference of the corresponding position on the right ankle. The left ankle was tender to palpation, particularly medially. The skin-grafted areas of the ankle were hypersensitive to even very slight touch.
Dr Thomson opined the left ankle’s dorsiflexion was reduced to 10 degrees and plantar flexion was also reduced to 10 degrees. In respect of hind foot impairment, he opined that inversion was reduced to 20 degrees and eversion was reduced to 10 degrees. This was a more confined range of movement than was later reported by the defendants’ orthopaedic surgeon Dr John Fraser.
Dr Thomson acknowledged in cross-examination he had not actually practised clinical medicine since about 1986 and since then had only done medico-legal reports.[50] However, it was not suggested in cross-examination that he lacked expertise to opine as he did. Nor was any aspect of his opinion challenged as being inconsistent with Mr Zavodny’s state on examination. The approach on cross-examination regarding the ankle injury was instead to suggest that, as Dr Thomson reasonably conceded, if Mr Zavodny’s range of ankle movement had significantly improved by the time of a subsequent examination by the defence expert orthopaedic surgeon Dr Fraser, then he would expect a significantly different assessment of Mr Zavodny’s level of impairment in his ankle.[51]
[50]T2-36 L46 – T2-37 L5.
[51]T2-38 L31 – T2-40 L13.
Dr John Fraser

Dr John Fraser, an orthopaedic surgeon engaged for the defendants, provided a report dated 14 December 2015,[52] after an examination on 10 December 2015, a report dated 6 July 2017,[53] after an examination on 4 July 2017 and a diary note of a conference (inferentially with lawyers), dated 30 October 2019.[54] It will be recalled Dr Thomson’s examination was on 16 August 2016, after Dr Fraser’s first examination but before his second examination.
[52]Ex 23.
[53]Ex 24.
[54]Ex 25.
Dr Fraser’s first report noted Mr Zavodny had current symptoms pertaining to the ankle injury suffered in the accident. He noted Mr Zavodny walked with a limp and could not run and that his injuries continued to limit Mr Zavodny’s capacity for prolonged standing and walking. He opined peripheral sensation and circulation in the foot were normal and noted the following ranges of motion:
Dorsiflexion – 0°
Plantar flexion – 50°
Inversion – 10°
Eversion – 5°
While none of those ranges correspond to those noted in Dr Thomson’s report of his subsequent examination, the stand-out variation is that Dr Fraser assessed a plantar flexion range of movement of 50 degrees in contrast to Dr Thomson’s assessment of 10 degrees. This is such a significant deviation in comparison to the other deviations in the assessed range of movements as to suggest some fundamental difference in methodology as distinct from patient condition.
Following Dr Fraser’s second examination of Mr Zavodny on 4 July 2017 he reported that Mr Zavodny had walked without a limp, that the peripheral circulation sensation in the foot was normal and that there was a full range of motion of inversion and eversion “though he complained of pain on performing this act of movement”. He noted 15 degrees dorsiflexion and 16 degrees plantar flexion but subsequently explained the latter was a transcription error and should read 60 degrees.[55] He opined there was no measured loss of motion in the left foot or hind foot.
[55]Ex 25 [1].
The above conclusions represent a surprising improvement in the ankle’s range of movement as compared to that range recorded by Dr Thomson just under a year earlier. When the 60 degrees plantar flexion assessment was raised with Dr Thomson in cross-examination he doubted it could be correct, observing that 60 degrees is a very long range of movement and is “more than normal”.[56] Dr Thomson’s scepticism is not the only reason to doubt the accuracy of Dr Fraser’s assessment of ankle movement range; it is an assessment at odds with most of the other experts, including that of the defence occupational therapist Ms Zeman who assessed left plantar flexion as limited by 32 degrees based on an examination occurring after Dr Fraser’s second examination of Mr Zavodny. The least likely explanation for the reported variability is that Mr Zavodny is a malingerer. If he were deliberately overstating the impact of the ankle injury, it would be surprising that he would exhibit a minimal range of impairment of ankle movement on examination by experts he must have appreciated were not his own. The more likely explanations for the variability are that different experts may assess movement ranges differently, that such assessments may involve some degree of subjective judgment and also that Mr Zavodny may have experienced some variation in his range of movement from day to day.
[56]T2-39 LL5-16.
Ms Sanja Zeman
Ms Sanja Zeman, an occupational therapist engaged for the defendants, provided a report dated 20 December 2017[57] of an assessment of 27 October 2017, a diary note (inferentially of a conference with lawyers) of 22 October 2019[58] and a diary note (inferentially of a conference with lawyers) dated 12 November 2019.[59]
[57]Ex 28.
[58]Ex 29.
[59]Ex 62.
Ms Zeman asserted her testing of Mr Zavodny’s ankle revealed a normal, active range of movement in all planes except for left ankle plantar flexion which was limited by 32 degrees. She considered he had unlimited tolerance for frequent kneeling but limited tolerance, that is, under three minutes, for squatting. She opined that Mr Zavodny needs to take care when ambulating over rough or uneven terrain but, curiously, the balance scale she used to assess balance suggested there was no impairment to balance or risk of low falls.
As discussed later, there were aspects of Ms Zeman’s evidence which undermined the reliability of her rather robust assessment of Mr Zavodny’s ankle injury.
Dr John Maguire
Dr John Maguire, an orthopaedic surgeon engaged for Mr Zavodny, provided a medico-legal report for Mr Zavodny dated 8 December 2017[60] after an examination on 1 December 2017 and a supplementary report dated 3 May 2018.[61]
[60]Ex 5.
[61]Ex 6.
Dr Maguire noted Mr Zavodny had sustained a soft tissue injury to the left ankle with bony damage to the medial malleolus with secondary osteomyelitis infection requiring skin grafting. Further to the unsightliness of the ankle and skin grafting area he noticed a loss of the saphenous nerve giving altered sensation over the medial aspect of the foot and medial sole of the foot. He noted Mr Zavodny walks with a limp and experiences difficulty walking on uneven surfaces and slopes.
Ms Daina Clark
Ms Daina Clark, a podiatrist engaged for Mr Zavodny, provided a medico-legal report dated 27 February 2018[62] after an examination on 7 February 2018.
[62]Ex 13.
Ms Clark noted pain restriction and guarding through the range of motion of Mr Zavodny’s left ankle, sub talar joint and especially through sagittal and transverse plane motion of the left mid tarsal joint. She also noted restriction in left ankle dorsiflexion and plantar flexion. She noted hesitancy in Mr Zavodny’s loading of his left foot with consequent shifting and weight to the right side. After a static and dynamic force analysis using a force plate treadmill, Ms Clark opined there was ongoing avoidance of loading of the left limb with resultant altered biomechanics of the proximal joints and the contra lateral limb with potential ramifications, not only for the left ankle but also the left knee, right hip and bilateral sacroiliac joints. She opined the loading of the left limb and resultant altered biomechanics was most likely due to the injuries sustained in the accident.
Ms Clark’s report of 27 February 2018 recommended Mr Zavodny have regular ongoing treatment to address the strength deficits and asymmetry and that he use orthotics to assist his foot function and improve limb stability.[63]
[63]Ex 13.
An attempt was made in cross-examination of Mr Zavodny to make something of a consultation progress note of Dr Milani, seemingly a general practitioner, whose consultation note included the words:
“Pain almost certainly mechanical in nature coming from altered gait due to ankle injury
Alan agrees as pain completely resolved when uses orthotics”[64]
[64]Ex 54.
However, Mr Zavodny could not recall saying such a thing to Dr Milani[65] and Dr Milani was not called as a witness. Exactly what pain Dr Milani was referring to in the consultation note is not apparent. It is obvious from Mr Zavodny’s evidence, consistently with Ms Clark’s evidence, that the use of orthotics provides some relief from pain, albeit variable.[66] Dr Milani’s progress note does not in the circumstances undermine the credibility or reliability of Mr Zavodny’s evidence as to the impact of his ankle injury.
[65]T2-21 L37.
[66]T2-21 L27.
Associate Professor Richard Lewandowski
Associate Professor Richard Lewandowski, a plastic and reconstructive surgeon engaged for Mr Zavodny, provided a medical report of 28 November 2018[67] after an assessment on 27 November 2018.
[67]Ex 14.
The report of Associate Professor Lewandowski focussed upon Mr Zavodny’s ankle. His report described the significant scarring to Mr Zavodny’s left ankle. It also noted Mr Zavodny’s range of ankle movement seemed to be restricted by the inability to fully plantar flex his left hallux. His report also noted there was an area of numbness distal to the ankle skin grafts extending along the instep onto the medial sole and onto the lateral sole of the foot. It appears Mr Zavodny’s loss of sensation to the sole of his left foot is permanent.[68]
[68]Further to Associate Professor Lewandowski’s report also see Ex 61 regarding Mr Zavodny’s consistency of complaint in respect of that undisputed problem; T3-11 LL5-15.
Mr Mark Scalia
Mr Mark Scalia, an occupational therapist engaged for Mr Zavodny, provided an assessment report dated 23 August 2016[69] after an assessment on 15 August 2016, a medico-legal report dated 18 October 2019[70] after an assessment on 3 October 2019, a file note of conference with counsel of 8 November 2019[71] and a file note of conference with counsel of 11 November 2019.[72]
[69]Ex 7.
[70]Ex 8.
[71]Ex 9.
[72]Ex 10.
Mr Scalia noted slight restrictions in Mr Zavodny’s left ankle’s dorsiflexion and eversion, and moderate restrictions in his ankle’s plantar flexion and inversion. Mr Scalia noted Mr Zavodny was unable to balance on his left leg beyond five seconds and he could not perform a full squat and had difficulty kneeling because of left ankle and left knee pain.
Conclusion
On balance, the expert evidence confirms the reliability of Mr Zavodny’s earlier reviewed evidence about the nature and extent of his ankle injury. It has left him with a permanent deficit, marked most obviously by difficulty in maintaining balance in dynamic environments, a lack of sensation under foot and variable pain, generally made worse by the ankle’s active or prolonged bearing of body weight or movement.
Shoulder injury
Was there a shoulder injury?
Mr Zavodny’s evidence about his shoulder injury was summarised above. In the course of cross-examination it was highlighted that there was no reference to the shoulder injury in the records of the attending ambulance officers on the date of the accident or in the records of the hospital during Mr Zavodny’s admission after the accident.[73] Mr Zavodny believed he would have mentioned it, explaining for example that he could recall saying when someone attempted to lift him at the scene, “Whoa put me down … My shoulder. My neck”.[74] In a similar vein he had a recollection when in hospital of his shoulder receiving attention from the physiotherapist and was sure he complained of pain to his left shoulder at the hospital.[75] While the ambulance and hospital notes make no express reference to the left shoulder injury, the ambulance records refer to, “CO pain to L) neck”[76] and the hospital notes also make abbreviated references to central and left sided neck pain.[77]
[73]Ex 32, 58.
[74]T1-42 L7.
[75]T2-25 L39.
[76]Ex 32.
[77]Ex 58 p 178.
It was highlighted in cross-examination that a general practitioner’s consultation note of an attendance by Mr Zavodny back on 19 January 2006, long before the accident, referred to chronic left shoulder pain, albeit with a reference to there being a full range of movement accompanied by the pain.[78] Mr Zavodny did not accept this suggested he had a history of left shoulder pain prior to the accident. He explained he did not believe he had had anything other than a muscle strain and had not experienced the kind of injury to his shoulder which he experienced in consequence of the accident.[79]
[78]Ex 37.
[79]T1-50 L32.
It was also highlighted in cross-examination that the first references in available records to a shoulder injury after the accident occurred in general practitioner consultation records from 30 September 2015 and thereafter.[80] The record of 30 September 2015 included:
“Left Shoulder pain – pain + stiff
no swelling
RTA last YR, no known bone injury of shoulder”[81]
That entry’s reference to RTA is consistent with Mr Zavodny’s assertion that he did suffer his shoulder injury in a road traffic accident.
[80]Ex 33 et seq.
[81]Ex 33.
A consultation note by general practitioner Dr Savis, of 3 December 2015, records:
“L ac jt pain
x-ray severe degen ac jt …
says since MBA
prob aggravation pre-existing”[82]
It was not suggested to Mr Zavodny that he told the doctor he had aggravated a pre-existing shoulder injury. The note “prob aggravation pre-existing” was presumably the doctor’s own opinion – an opinion which ought not be accorded significant weight given Dr Savis was not a witness in the case. The note’s reference to “says since MBA” obviously suggests Mr Zavodny was reporting that the shoulder pain had been present since the bicycle accident.
[82]Ex 35.
It is important to appreciate the defendants do admit Mr Zavodny suffered a left shoulder injury as a result of the accident. Admittedly they confine their description of that injury to it being a “minor and transient strain of the supporting soft tissue structures of the left shoulder”.[83] But the admission dispenses with any debate about whether Mr Zavodny suffered a left shoulder injury as a result of the accident. The real issue is whether the injury’s effects were minor and transient or whether they are a causal source of Mr Zavodny’s ongoing difficulty with his shoulder.
[83]Further amended defence, [4].
Some of the experts provided opinions regarding the shoulder injury. Again, it is helpful to consider them chronologically, ending with the expert who examined Mr Zavodny most recently.
Dr Ronald Thomson
Dr Thomson opined Mr Zavodny had ongoing intermittent pain at the left shoulder which was worse on the usual movement of that part of the body. He also opined it was worse with any load bearing and any attempted overhead activity. He noted tenderness to palpation anteriorly in the subacromial area and that movement of the shoulder against restraining force was painful. In contrast to the normal condition of the right shoulder, he opined the left shoulder was obviously defective with reduced muscle bulk. As to range of motion he noted abduction 90 degrees, adduction 30 degrees, flexion 110 degrees, extension 40 degrees, external rotation 60 degrees and internal rotation 70 degrees.
In cross-examination Dr Thomson acknowledged he was unaware that there was no reference to the left shoulder injury in the hospital records.[84] Dr Thomson was asked to assume that the shoulder “may have been a little sore at the time of the accident, but that resolved” and Mr Zavodny had no symptoms for about a year in his left shoulder. That hypothesis appears to be based on the abovementioned chronology of when records of shoulder symptoms did start to appear in medical records. Dr Thomson responded:
“Not necessarily. It could be submerged and … other more serious problems which this person had. Not too much notice was taken of it, and subsequently, over the course of time, it can resurface.”[85]
[84]T2-37 L24.
[85]T2-37 LL40-43.
Dr Thomson considered it was “quite a long shot” that the shoulder became symptomatic simply because of degeneration.[86]
[86]T2-38 L2.
Dr John Fraser
In his 2015 report Dr Fraser opined Mr Zavodny’s continuing neck and left shoulder symptoms pertained to pre-existing degenerative changes, stating Mr Zavodny had suffered an exacerbation of those “pre-existing naturally occurring degenerative changes in the left shoulder”. In his 2017 report Dr Fraser recorded that there was a full active range of motion in the left shoulder. He opined Mr Zavodny had suffered a soft tissue injury to the left shoulder and a strain of the supporting soft tissues of the cervical spine as a result of the accident.
In Dr Fraser’s diary note of the conference on 30 October 2019 it was noted Mr Zavodny had a full range of shoulder movement on both occasions that Dr Fraser had seen him. The note opined that Mr Zavodny’s “shoulder symptomology is in fact longstanding degeneration and not any injury suffered in the accident”. The foundation provided for that opinion was the absence of medical recording of shoulder problems for 54 weeks after the accident until 30 September 2015 and the fact that the x-ray referred to in Dr Savis’s records of December 2015 detected severe degeneration of the AC joint.
That foundation apparently assumes from the long post-accident absence of medical records of any complaint about the shoulder that Mr Zavodny must not have had shoulder problems in that intervening time, thus eliminating the accident as the logical cause of shoulder problems which supposedly manifested over a year later. However, the assumption is flawed because of Mr Zavodny’s evidence.
Mr Zavodny’s evidence was not only that he did hurt his shoulder in the accident, a fact admitted by the defendants, but also that his shoulder symptoms had become more pronounced after he returned to working at sea,[87] something he did in February, April and August 2015. That he is not recorded as having complained about his shoulder to a doctor in 2015 until 30 September did not cause me to doubt his evidence, as short as it was, about his shoulder symptoms becoming more pronounced when attempting work back at sea. I draw the obvious inference deriving from such evidence, which is that his shoulder symptoms had been ongoing, though less pronounced, since the accident. In other words, I find the symptoms of his shoulder injury suffered in the accident persisted thereafter with variable intensity. It is plausible, and consistent with his apparently stoic endeavours to get on with his life after the ordeal involving his ankle injury infection, that he did not relent and see a doctor until later in the year about his ongoing but variable shoulder symptoms.
[87]Ex 1 p 7 [26].
I note for completeness that while there was a tangential challenge to Mr Zavodny’s evidence on this point via the highlighting of the paucity of medical records, he was not the subject of cross-examination regarding his evidence that his shoulder symptoms became more pronounced with work at sea.
Ms Sanja Zeman
Ms Zeman, occupational therapist, considered Mr Zavodny’s shoulders had a normal active range of movement in all planes, except for a limitation of 20 degrees in left external rotation. She noted Mr Zavodny had limited tolerance, that is, under three minutes, for reaching overhead with his left shoulder.
Dr John Maguire
Dr Maguire noted an obvious deformity to the acromioclavicular joint, commonly known as the AC joint. He considered it to be an obvious grade two defect, that is, a grade two AC joint injury, accompanied by tenderness at the joint and pain on cross adduction. He noted limitations in the range of motion of the left shoulder with reductions on the left compared to the right as follows:
Forward flexion 160° on left, 180° on right
Abduction 130° on left, 180° on right
Adduction 40° left, 60° right
Extension 20° left, 40° right
External rotation 60° left, 90° right
Internal rotation 20° left, 50° right
He opined that Mr Zavodny’s shoulder may benefit from surgical intervention.
It was pointed out to Dr Maguire in cross-examination that Mr Zavodny was seen by Dr Fraser, at times prior to Dr Maguire’s examination, and Dr Fraser considered Mr Zavodny’s shoulder had a full range of movement. To this, Dr Maguire responded that Mr Zavodny “certainly didn’t have a normal range of motion” in his shoulder when reviewed by Dr Maguire.[88] He rejected the suggestion that the full range of motion present at the time Dr Fraser saw Mr Zavodny was inconsistent with the presence of a grade two AC joint injury, responding:
“No. Grade two a – AC joint injury, they can have a normal range of motion. If he had a grade three AC joint injury where the – the clavicle is severely displaced, then you would expect him to have some significant changes, but in a low grade two injury, not necessarily.”[89]
Neither party chose to ask whether there may be variability in the range of motion from time to time exhibited in connection with a grade two AC joint injury but it is hardly implausible that an area of injury may fluctuate in its capacity or tolerance for movement.
[88]T2-62 L46.
[89]T2-63 L10.

Dr Maguire’s attention was drawn in cross-examination to an X-ray report in respect of Mr Zavodny’s left shoulder taken on 25 February 2016, in which there was no reference to an AC joint injury.[90] The doctor had not sighted the X-rays in question. He was reminded the X-ray report said:
“There is mild superior migration of the humeral head. Early degenerative changes in the glenohumeral joint with superior osteophyte formation. Degenerative changes in the acromioclavicular joint. No fractures. No calcifications in the region of rotator cuff.”[91]
Dr Maguire testified that while he would expect a radiologist would probably be able to report a low grade two AC joint injury, he would not necessarily expect it to be reported.[92] He explained, credibly in my view, that such an injury might not be noticed by the radiologist, an AC joint injury being a clinical diagnosis.[93]
[90]Ex 59.
[91]T2-60 L40, Ex 59 p 115.
[92]T2-60 LL20-31.
[93]T2-61 L5.
Dr Maguire was taken to task in cross-examination about the significance of there being no reference in the hospital notes to Mr Zavodny’s left shoulder. Dr Maguire pointed out the major presenting injury was to the ankle and “things often get missed”,[94] but that in any event the hospital notes did record left-sided neck pain.[95] He noted the AC joint is at the lower end of the neck and that it was not very clear what the extent of the left-sided neck pain recorded by the hospital referred to.[96]
[94]T2-62 L29.
[95]T2-59 LL5-23.
[96]T2-59 L8.
Dr Maguire explained he was a shoulder specialist, “unlike Dr Fraser”, and one of the most common injuries presenting to him is an AC joint injury. He said the predominance of people that he sees in that context actually present with lower-sided neck pain, not shoulder pain.[97] He explained:
“So … people will often present to me with … lower neck pain, and it’s actually their AC joint. So it’s … different to a shoulder problem. The shoulder is the glenohumeral joint, and the AC joint is much more medial to that. So the presentations are varied, particularly in a very low grade injury, which is what he had.”[98]
[97]T2-62 L11.
[98]T2-62 LL15-18.
Dr Maguire was asked in cross-examination to assume Mr Zavodny had no symptoms in his neck or shoulder, other than immediately post-accident, for about a year after the accident. Accepting that assumption it was put to him he could not implicate the accident in the AC joint disruption and Dr Maguire responded:
“Well I don’t think you can say that. I – I just – I’m not sure is – is the real answer to your question.”[99]
[99]T2-62 L24.
Mr Mark Scalia
Mr Scalia, occupational therapist, noted in respect of Mr Zavodny’s range of shoulder movement a slight restriction in its external rotation and moderate restrictions in its abduction and flexion.
Conclusion
I accept Mr Zavodny continues to suffer variable pain and variable tolerance and range of movement in his left shoulder.
As to the potential cause of those symptoms, I am conscious x-rays have detected degeneration of Mr Zavodny’s glenohumeral and acromioclavicular joints. But there is a more obvious explanation for his symptoms. I accept Dr Maguire’s evidence that Mr Zavodny has a grade 2 AC joint injury. It is that injury which on the balance of probabilities is the cause of Mr Zavodny’s ongoing shoulder symptoms.
Was that shoulder injury caused by the accident? The defendants admit that Mr Zavodny did suffer a shoulder injury in the accident. Mr Zavodny was recorded as experiencing left sided neck pain directly after the accident. That is consistent, as Dr Maguire persuasively explained, with Mr Zavodny having suffered an AC joint injury. Dr Maguire credibly conceded he would be unsure whether the accident caused the injury when asked to assume Mr Zavodny had no symptoms in his neck or shoulder, other than immediately post-accident, for about a year after the accident. However, that assumption does not reflect the evidence. I have already found on the evidence that the symptoms of the shoulder injury Mr Zavodny suffered in the accident persisted thereafter with variable intensity. They have persisted to the present. I accordingly find Mr Zavodny’s ongoing grade 2 AC joint injury was caused by the accident.
Adjustment disorder with depressed mood
Dr John Chalk
Dr John Chalk, a psychiatrist engaged for the defendants, provided a report dated 27 October 2017[100] of an assessment on 26 October 2017 and a diary note of a conference (inferentially with lawyers) dated 22 October 2019.[101]
[100]Ex 26.
[101]Ex 27.
Dr Chalk’s report of his October 2017 assessment of Mr Zavodny opined that in the aftermath of the accident Mr Zavodny developed symptoms of an adjustment disorder with depressed and anxious mood and Dr Chalk diagnosed a chronic adjustment disorder. He opined any likely improvement would depend upon Mr Zavodny’s underlying physical condition, reasoning that a return to “some form of gainful employment with his physical limitations” would likely assist his psychiatric state.[102]
[102]Ex 26 p 12 [6].
Dr Chalk’s diary note of the conference in October 2019 alluded to Mr Zavodny’s appearance in the television interview conducted by media personalities Hamish and Andy. Dr Chalk understood, wrongly, that the interview had occurred after Mr Zavodny had been assessed by him on 26 October 2017. He opined in the diary note that, based on Mr Zavodny’s appearance in the television interview, he was not presenting with any significant psychiatric problems.[103] In fact, the interview was recorded on 10 September 2017 prior to Dr Chalk seeing Mr Zavodny and diagnosing a chronic adjustment disorder. When Dr Chalk’s error as to the aforesaid sequence was drawn to his attention in cross-examination, he was unconvincing in asserting that his views were unchanged by that realisation.[104] The probability that his initial diagnosis was correct is heightened by a similar diagnosis having been reached by the other psychiatrist in the case.
[103]Ex 27 p 2.
[104]T3-15 L27.
Dr Riccardo Caniato
Dr Riccardo Caniato, consultant psychiatrist engaged for Mr Zavodny, provided a medico-legal report dated 25 May 2017[105] after an examination on 16 May 2017 and a medico-legal report dated 12 November 2019[106] after an examination on 7 November 2019.
[105]Ex 11.
[106]Ex 12.
Dr Caniato opined that subsequent to Mr Zavodny’s injuries from the accident and problematic recovery he developed an adjustment disorder with depressed mood. Dr Caniato opined that the disorder is secondary to the physical injury, associated pain and limitations on lifestyle, especially the limitations of Mr Zavodny’s ability to engage in his employment as a ship’s captain. He recommended Mr Zavodny undergo adjustment to injury counselling, although he thought the plaintiff would be reluctant to engage in psychiatric treatment.
Dr Caniato examined Mr Zavodny again shortly before the commencement of the trial. While he opined in his report there had been some mild improvement in Mr Zavodny’s symptoms in the intervening period of about two and a half years, by the time he gave evidence after reading all the material he was “not totally certain that there has really been much improvement”.[107] In any event in his second report he opined Mr Zavodny “remained significantly impaired by virtue of his adjustment disorder”. He noted Mr Zavodny was disorganised and difficult to keep on track, experiencing significant troubles with timing, memory and ordering events, and considered that cognition was impaired.
[107]T3-3 L23.
Conclusion
The accident caused Mr Zavodny to suffer from an adjustment disorder with depressed mood. The psychiatric injury is secondary to his physical injuries in the sense it arises in reaction to the impact those injuries have had on his life.
Capacity to work
It is helpful to consider capacity to work before turning to the assessment of damages. Again it is again convenient to consider the expert evidence chronologically, ending with the expert who examined Mr Zavodny most recently.
Dr Ronald Thomson
Dr Thomson opined in his report of 16 August 2016, in respect of Mr Zavodny’s left ankle and left shoulder injuries:
“These injuries and principally that related to the left ankle/foot have effectively destroyed his employment and his whole career and he is totally unfit for any form of physical occupation or social/domestic activity requiring normality at these parts.”[108]
[108]Ex 3 p 5.
Dr Thomson opined Mr Zavodny was only employable, and for no more than 20 hours weekly, for sedentary or semi-sedentary work where he would be able to sit or stand and adjust his posture at will and with a lifting limit of 10 kilograms. These opinions were not expressly challenged in cross-examination.
Dr Fraser
Dr Fraser’s expression of opinion about Mr Zavodny’s capacity to work were varied. In his 2015 report he opined in response to two separate questions that on the one hand Mr Zavodny’s injuries had rendered him unable to work as a mariner since the accident, but on the other hand the injuries would not prevent him from being gainfully employed as a mariner or as an engineer henceforth. He explained in his second report that by this he had meant Mr Zavodny had been incapacitated for work as a mariner prior to the time of the first examination, but that from the time of examination onwards Mr Zavodny would not be prevented from being gainfully employed as a mariner or as an engineer.[109]
[109]Ex 24 p 9; Ex 23 p 6.
Taken to task about this in cross-examination he accepted he was, in effect, saying that from the date of the accident to Dr Fraser’s first examination of Mr Zavodny on 10 December 2015 Mr Zavodny could not work because of his ankle injury, but as from 11 December 2015 his injuries would not prevent him from being gainfully employed as a mariner or an engineer.[110] Dr Fraser did not take up the opportunity proffered in cross-examination to explain the foundation for concluding Mr Zavodny was fit to return to work.[111] Nor did he proffer insight into how he reached the conclusion that the date of his first examination of Mr Zavodny just happened to coincide with the point in time in Mr Zavodny’s recovery when he went from being unable to work to being able to work.
[110]T2-67 LL14-19.
[111]T2-67 LL40-45.
It is likely Dr Fraser erred in his choice of words in the first report by indicating that Mr Zavodny’s injuries would not prevent him from being gainfully employed as a mariner or engineer from that time onwards. Rather than concede that error in cross-examination his answers boxed him into making the improbable assertion that the time that Mr Zavodny’s capacity to return to work changed just happened to be the date of the first examination. It was a position made all the less credible by his assertion elsewhere in the first report that Mr Zavodny’s prognosis was guarded and that it was unlikely further improvement would occur;[112] that maximum medical improvement has been achieved;[113] and that “the injuries suffered continued to limit his capacity for prolonged standing, walking, swimming and the use of flippers”.[114]
[112]Ex 23 p 7.
[113]Ex 23 p 6.
[114]Ex 23 p 6.
Dr Fraser’s 2017 report asserted:
“Mr Zavodny’s current incapacity for work pertains more to a lack of available contract work and his age rather than the effects of the injuries suffered in the accident in question.”[115]
[115]Ex 24 p 7.
The foundation for that assertion went unexplained in the report. In a subsequent conference diary note Dr Fraser acknowledged not having a note of being told there was a lack of available contract work but claimed he did not think he would have inserted such a thing in the report unless Mr Zavodny had told him “to that effect”.[116] In cross-examination Dr Fraser acknowledged he had no memory of the conversation.[117] Mr Zavodny emphatically rejected the suggestion he had told Dr Fraser there was a lack of available contract work.[118] This, regrettably, seemed to be another instance in Dr Fraser’s reporting of him using unfounded or poorly chosen words in a way that happened to be unfavourable to Mr Zavodny’s position.
[116]Ex 25 [9].
[117]T2-70 L7.
[118]T2-13 LL40-46.
Towards the end of Dr Fraser’s cross-examination, after the above oddities had been exposed, he seemed to return to a less extreme position regarding Mr Zavodny’s capacity for future work. In his second report Dr Fraser addressed the question, “If you are of the opinion that the claimant will experience limitations in employment in the future, what types of employment do you think would be suitable?”[119] Dr Fraser wrote:
“Mr Zavodny is capable of appropriate work in the charter industry and fishing industry, if such work were available to him.”[120] (emphasis added)
[119]Ex 24 p 7.
[120]Ex 24 p 7.
When questioned about what he meant by “appropriate” work, he seemed to indicate he was referring to work that would avoid the movement that gives him difficulty because of his ankle, such as climbing on and off boats, limited ability to climb ladders and stairways, and move in and out of hatches.[121] For example, he apparently felt Mr Zavodny would be capable of sitting behind the wheel of a boat and navigating.[122] Dr Fraser acknowledged Mr Zavodny had explained to him how his ankle condition limits his ability to move about boats.[123] He ultimately appeared to concede that what he was “really saying” was Mr Zavodny’s injury restricted him to jobs in the maritime industry that avoided having to move and climb about boats.[124] By the time Dr Fraser completed his cross-examination I was left with the distinct impression that in formulating his opinion about Mr Zavodny’s capacity for work in the future, he had not really had any regard to the problems Mr Zavodny would have in climbing and moving about vessels at sea.
[121]T2-72 L33, T2-73 L3.
[122]T2-72 L33, T2-72 L44.
[123]T2-73 L3.
[124]T2-73 L8.
Ms Sanja Zeman
Ms Zeman, occupational therapist, acknowledged that marine engineering duties do require the adoption of more awkward and constrained positions, which would be contraindicated given Mr Zavodny’s residual range of movement deficit within the ankle impacting on sustained squatting. Despite this, she opined that Mr Zavodny continues to have an ongoing capacity for employment on a full-time basis as a ship’s captain with no loss of earning capacity associated with the subject accident. That opinion was not credible.
Ms Zeman reasoned that because Mr Zavodny’s only work capacity restrictions related to work tasks falling outside of the assessed medium work category, the roles of ship’s master and ship’s officer were suitable for him as the physical demands of those positions, according to an accident compensation corporation website, were classified as light to medium work. This classification method seemed to accentuate the capacity to lift without acknowledging the impairment likely on balance and manoeuvring on board a boat.
Ms Zeman’s balance test scored Mr Zavodny at 54 out of 56 which she described as being “all but normal”.[125] Ms Zeman acknowledged in cross-examination that her testing of Mr Zavodny’s balance was necessarily in a static environment and not undertaken in an environment mirroring the movement of a vessel.[126] She did emphasise, however, that there are aspects of the test which was administered which would inform consideration of an individual’s likely capacity for balance in a dynamic, as opposed to static, environment.[127]
[125]T3-28 L33.
[126]T3-28 LL11-45.
[127]T3-28 L31.
Ms Zeman’s opinion may have been influenced by her erroneous understanding that Mr Zavodny’s gym work included high intensity interval training.[128] Mr Zavodny credibly denied telling her he did gym work of that kind. He explained he did not make reference to “high intensity interval training”.[129] However on his account, which I accept, he did tell her of some of the exercises he did at the gym, for example floor exercises in which the knee is brought to the shoulder and another variant in which the knees and arms are raised together. He testified, “You do them in a series, you do them 10/15 seconds take a break”.[130] Mr Zavodny suggested of the exercises that, if they were done fast and hard enough, they would be “high intensity interval training”.[131]
[128]Ex 28; T3-27 LL3-11.
[129]T1-30 L5.
[130]T1-29 L44.
[131]T1-48 L37.
It appears likely Ms Zeman conflated or misunderstood Mr Zavodny’s descriptions of those types of repetitive gym exercises in arriving at the apparent understanding that Mr Zavodny did high intensity interval training involving rigorous use of his legs when upright. In point of fact, the only reference in her notes to high intensity interval training or “HIIT” related specifically to his left shoulder capsule and said:
“Discussed that if he uses the arm outstretched at gym, yoga or HIIT class it can aggravate.”[132]
[132]T3-35 LL30-36.
This was not the only concerning aspect about the reliability of Ms Zeman’s evidence. In her diary note of 22 October 2019[133] she noted an ophthalmologist had recorded Mr Zavodny’s visual acuity in each eye as “6/60” and wrote:
“Thus, unless there had been some change in that condition, he would not have sufficient visual acuity to carry out work as a ship’s captain.”
Such an observation was adverse to Mr Zavodny’s case in that it effectively indicated Mr Zavodny would not, in any event, have been able to continue to work as a master.
[133]Ex 29.
Earlier in the same note she referred to the Australian Maritime Safety Authority Standards for the medical examination of seafarers and coastal pilots and its requisite figures for visual acuity. Visual acuity of 6/60 would not meet those requisites. What Ms Zeman did not mention in her file note is that the standards would allow Mr Zavodny’s visual acuity to be assessed with aided vision, that is by reference to corrected visual acuity.[134] When wearing glasses Mr Zavodny’s visual acuity meets the requisite standards. No aspect of his vision would preclude his capacity to carry out his former calling were he otherwise fit to do so. This may have simply been an oversight or error by Ms Zeman which, like her error regarding the high intensity interval training, happened to support an opinion adverse to Mr Zavodny’s case.
[134]Ex 60 p 10.
However, even if only errors, those features of her evidence combined with another feature of her evidence to detract from the reliability of her opinions generally. In the course of cross-examination Ms Zeman was obviously reluctant to answer questions premised on facts she was asked to assume and instead wanted to argue about whether those facts were correct. For example, she was cross-examined about her diary note of 12 November 2019. It recorded that she had been shown photographs of the Azura and been asked to assume Mr Zavodny had acted as Master on a variety of occasions, namely:
“(a) Acted as Master of the vessel, taking it from Perth to Exmouth in about February 2015;
(b) Acted as Master of the vessel in a fishing competition in Perth from about 2 March 2015;
(c) Acted as Master of the vessel between 5 March 2014 [sic 2015] and 7 April 2014 [sic 2015];
(d) May have acted as Master of a similar vessel near Perth in April 2015;
(e) Seems to have participated in the Lucinda Light Game Fishing Tournament in about August 2015, probably as Master of the vessel;
(f) In January 2016 undertook a private charter as Master of a vessel, the details of which are unknown;
(g) In about March 2016 undertook a charter with Northern Conquest Charters, the details of which are unknown;
(h) In November or December of 2016 acting as Master of Azura, the vessel shown in the photograph, for something of the order of 10 days;
(i) In March 2017 acting as Master of the vessel Azura for two weeks including skippering the vessel in the Australian Junior Bill Fishing Tournament at Exmouth.”[135]
[135]Ex 62 p 3.

In asserting his claim to care and assistance Mr Zavodny asserts in his quantum statement at schedule C, “I rely upon the reports from Mr Mark Scalia, Occupational Therapist, being Mr Scalia’s reports dated 23 August 2016 and 18 October 2019.”[213] It goes on to assert that the facts set out in Mr Scalia’s reports of 23 August 2016 and 18 October 2019, which he “provided to Mr Scalia are true and correct”.[214] Mr Scalia’s reports contained some detail regarding Mr Zavodny’s past care and assistance.
[213]Ex 1 sch C, Ex 7, Ex 8.
[214]Ex 1 [74].
By the time of closing submissions the extent of the claim for past gratuitous services being pursued had reduced to a sum of $16,553, articulated within four care periods, namely:
1.   2014 T Williams 6 weeks x $25 per hour x 13 hours = $1,950
2.   2015 J Roati 6.714 weeks x $25 per hour x 13 hours = $2,182
3.   2015 J Roati 23.28 weeks x $27.50 per hour x 6 hours = $3,841
4.   2016 – June 2017 J Roati 78 weeks x $27.50 per hour x 4 hours = $8,580.
I will refer to those periods as service periods one, two, three and four. The parties are agreed that the abovementioned hourly rates should be applied to such of the disputed need for past care and assistance as may be found in Mr Zavodny’s favour.[215]
[215]T3-9 L3. The concession related to the rates in the Quantum Statement but they are the same rates as asserted for Mr Zavodny in closing submissions.
The reduction in the quantum of services claimed was seemingly because the only alleged providers who gave evidence of providing services were Ms Williams and Mrs Roati. Mr Zavodny’s evidence of the provision of such services largely consisted of his adoption of the accuracy of the information in Mr Scalia’s report. However, that information was limited, with little detail as to the real need for the services. The failure to call other care providers was not necessarily determinative[216] but it is unnecessary to express a concluded view regarding care no longer claimed for.
[216]Rossi v Westbrook and Anor [2011] QSC 311 [35].
Service period one: 2014 T Williams 6 weeks x $25 per hour x 13 hours = $1,950
Service period one appears to correspond to part of Mr Scalia’s care period two which he described as running from 21 October 2014 to 27 December 2014, a period of 9.57 weeks. However, only six weeks of that period is now claimed, for services provided by Mr Zavodny’s former de facto, Tonia Williams. The balance related to alleged care by the Savis’s, who did not give evidence.
For this era Mr Scalia attributed a care period of 13 hours per week consisting of seven hours meal preparation, one hour domestic cleaning, one hour shopping, one hour laundry and three hours transportation. The evidence of Ms Williams[217] is that more significant hours were involved so the claimed average weekly hours is well supported by evidence.
[217]Ex 17.
As to the number of weeks, it will be recalled Mr Zavodny stayed with Ms Williams from his second discharge from hospital on 21 October 2014 to 20 December 2014 when she went away for Christmas and he then stayed with the Savis’s. This was a period of two months, or eight weeks and five days. It is not clear why the period alluded to in closing submissions was only six weeks when the evidence supports the conclusion it was a two month period.
I infer from closing submissions that has some connection with a faint attempt to raise the possibility that Mr Zavodny may have stayed with the Savis’s for part of this period, founded on the fact that hospital records include a record of a same day admission and discharge on 3 December 2014, wherein Mr Zavodny’s address is recorded as Breakwater Quays, Lot 17, 48 Sir Leslie Thiess Drive, North Ward.[218] That address is an apartment owned by the Savis’s.[219] I did not regard Mr Zavodny’s responses to questioning on this topic as clearly conceding he in fact stayed with the Savis’s at that particular time as distinct from other periods.[220] It may well be the Savis’s in some way helped him on this particular occasion of discharge and that resulted in the above record.
[218]Ex 58 p 394/121.
[219]T2-24 L37.
[220]T1-66 L20, T2-24 L37.
It will make no difference ultimately, but, despite the claimed period being conceded as six weeks, I am satisfied on the evidence of Mr Zavodny and Ms Williams that he did stay with her during the afore-mentioned two month period and received 13 hours care per week from Ms Williams.
Service period two: 2015 J Roati 6.714 weeks x $25 per hour x 13 hours = $2,182
The care period identified as care period three by Mr Scalia appears to coincide with service period two claimed in closing submissions. Mr Scalia qualified the total care provided as being 13 hours per week in the seven weeks from 28 December 2014 to 15 February 2015, consisting of five hours meal preparation, three hours domestic cleaning, one hour shopping, two hours laundry and two hours transportation. Mr Scalia described the care provider as Jane Roati for all of those tasks except for transportation in respect of which he described the care provider as Jane Roati and friends.
Mrs Roati’s husband, who happens to be Mr Zavodny’s solicitor in the present case, was a close friend of Mr Zavodny. Mrs Roati allowed Mr Zavodny to stay at her cottage at 31 Gossner Street, Lucinda over several periods. He lived at the Gossner Street cottage after Christmas in 2014 until February 2015.[221] At that time he was on crutches and not very mobile.[222] She provided extensive assistance with meal preparation, cleaning, washing, folding and ironing clothes, and grocery shopping. Mrs Roati recalled Mr Zavodny’s bed linen needed changing and washing more often than normal because the wound on his foot would ooze onto the linen.[223] She estimated she would have spent four to seven hours a week cooking for Mr Zavodny,[224] a minimum of three to four hours a week cleaning[225] and about an hour each week grocery shopping.[226] Adopting the mid-range of those estimates, allowing say five and a half hours for cooking and three and half hours for cleaning, and adding an hour for grocery shopping would give a total per week of 10, not 13 hours.
[221]T2-41 L35.
[222]T2-42 L7.
[223]T2-43 L6.
[224]T2-42 L22.
[225]T2-42 L40.
[226]T2-43 L17.
It is unclear why the period contended for in submissions was 6.714 weeks when the period, 28 December 2014 to 15 February 2015, was actually seven weeks and one day. Adding the correct length of the period to the eight weeks and five days of service period two gives a running total of 15 weeks and six days.
The need for significant care subsides
Up to this point it will be appreciated Mr Zavodny had been recuperating from serious medical complications and it is uncontroversial that he would have required assistance. However, after mid-February 2015 it will be recalled he travelled to Western Australia and made unsuccessful attempts in working as a master. While his attempts were unsuccessful it is obvious he was sufficiently recovered to travel to Western Australia and actually make the attempts. He was also able to drive by then.[227]
[227]Ex 7 p 21.
In other words, Mr Zavodny’s need for very significant care, associated with his troubled short term recovery, had passed by mid-February. Thereafter the nature of his impairment, canvassed earlier, would only have precluded self-care tasks which were physically demanding.
Service period three: 2015 J Roati 23.28 weeks x $27.50 per hour x 6 hours = $3,841
Service period three appears to correspond to the period identified as care period seven by Mr Scalia, running from 15 July 2015 to 16 December 2015, a period of 22 weeks. For that period Mr Scalia’s report noted six hours assistance provided per week by Mrs Roati consisting of three hours meal preparation, one hour shopping, one hour domestic cleaning and one hour laundry.
Mr Scalia was also cross-examined about his reports’ assertion of the need for laundry assistance of one hour a week for Mr Zavodny from his care period four onwards. When it was suggested Mr Zavodny was quite capable in that era of putting on a load of washing, hanging it out and ironing it, Mr Scalia qualified Mr Zavodny’s ability to do so. Mr Scalia explained because of Mr Zavodny’s difficulty with his ankle and his standing tolerances, he would have had difficulty hanging out washing.[228] He acknowledged tasks such as ironing could be modified so Mr Zavodny might iron whilst sitting down.[229] However, he emphasised if any aspect of the laundry tasks involved standing for long periods and involved any weight bearing or loading on his left ankle, Mr Zavodny would have difficulty performing such tasks.[230]
[228]T3-22 L11.
[229]T3-22 L28.
[230]T3-22 L30.
All of this faded in significance given the absence of evidence that Mrs Roati assisted with laundry or ironing in service period three.
Mrs Roati recalled that after Mr Zavodny returned to residing at her cottage from mid-2015 through to about Christmas of 2015 she would take Mr Zavodny meals a couple of times a week, and every week or so she would attend the cottage to tidy it up.[231] She did not quantify those tasks with estimates as to how long they took but her evidence about them did not support the claim of necessary care of six hours per week.
[231]T2-43 LL42-46.
While, her description of the assistance she provided through cooking for him in that era asserted “he wasn’t capable of doing it”, she did not appear to mean that literally and conveyed the impression she helped because he liked her cooking and she suspected he would not cook and feed himself as well as she thought he should.[232] I was not left with the impression that her assistance in this period with meals, which was admirable and undoubtedly helped Mr Zavodny, was necessary.
[232]T2-44 LL3-10.
In cross-examination Mrs Roati acknowledged she had kept no records of the assistance she provided.[233] She rejected the suggestion that she was aware it would be prudent to keep such records, explaining she did not think she would need to keep a record of assistance provided to a friend.[234] That evidence was quite credible. In any event her credit was hardly in issue in that she had already mentioned in evidence in chief that the assistance provided from mid-2015 was less than earlier in the year.
[233]T2-46 L14.
[234]T2-46 L12.
I am unwilling to act upon Mr Scalia’s estimate of six hours assistance per week in this period merely on the premise Mr Zavodny says the information in Mr Scalia’s report is accurate. Neither of the witnesses who could give first hand evidence on this issue - Mr Zavodny and Mrs Roati - gave evidence supporting the conclusion that as much as six hours needed assistance per week was provided in this period.
This signals the failure of the claim to past gratuitous services because s 59’s threshold requirement of the provision of services for at least six hours per week for six months cannot be met.
Service period four: 2016 – June 2017 J Roati 78 weeks x $27.50 per hour x 4 hours = $8,580
Service period four corresponds with Mr Scalia’s care period eight, a period of 78 weeks from 16 December 2015 to 14 June 2017. The calculated total of six hours per week was said by Mr Scalia to consist of two hours meal preparation by Mrs Roati, three hours domestic cleaning by commercial services and one hour yard maintenance by commercial services. It is not apparent how the latter two services can be claimed as gratuitous.
It is clear the gratuitous services provided to Mr Zavodny in this era were less than six hours per week and there is no evidence they were necessary. Indeed, Mrs Roati testified that she continued providing Mr Zavodny with home-made meals in this era because it was “something nice for him”.[235]
[235]T2-44 L16.
Conclusion
It follows the threshold requirement of s 59 of the Act has not been met and there can be no award for gratuitous services.
I note for completeness that even if Mr Zavodny had sought to and did establish the receipt of gratuitous care for 6 hours a week or more continuously from the accident on 10 September 2014 to the time in mid-February when he was fit to travel and attempt work, that would only have evidenced a period of about five months of gratuitous care. The determinative problem with his gratuitous services claim was that he was not in need of the requisite duration of weekly gratuitous care beyond that period.
Past paid services
Mr Zavodny claims a total of $4,172 for past paid services.
The evidence proffered in support of this aspect of the claim was sketchy. Mr Zavodny’s quantum statement asserts that he “engaged paid assistance for mowing, gardening and outdoor chores and domestic tasks”. It then states, “I have incurred expenses in the sum of $3,067.00 for mowing and outdoor chores and $1,105.00 for domestic assistance…”.[236] These appear to be exact figures, as if the result of adding various known amounts of expenditure by Mr Zavodny. Yet, no detail was included in Mr Zavodny’s quantum statement or evidence-in-chief about the amounts or why, when or how they were incurred and paid.
[236]Ex 1 [72].
As to mowing and outdoor services, Mr Zavodny’s legal representatives provided the defendants with a bundle of invoices for mowing and associated services. It was exhibited by the defendants.[237] That 36-page bundle contained 35 invoices and one email from Mr Richard Warden of the business known as The Clean Cut Bloke which had provided some of the mowing and related services. That email of 23 August 2016 was directed to Mr Zavodny’s solicitor and listed the dates and amounts charged for services provided to the Gossner Street cottage from January 2015. Of those listed, all but two are recorded in the tendered invoices. The two amounts not included in the tendered invoices were $140 attributable to 19 January 2015 and $120 attributable to 18 February 2015. Those amounts, added to all the invoiced amounts, gives a total of $2,970.90, which is short of the total claimed of $3,067.
[237]Ex 57.
Of the 35 invoices, 27 of them[238] were invoices to John and Jane Roati or to John Roati. Those invoices totalled $2,210.90 (excluding amounts included in three invoices for work on another property, 80 Bruce Parade Lucinda). Their issue dates ranged from 18 March 2015 to 24 October 2017. The remaining eight invoices[239] were invoices to Mr Zavodny. They totalled $500 and their issue dates ranged from 12 December 2017 to 18 September 2019.
[238]Ex 57 pp 9-19, 21-36.
[239]Ex 57 pp 1-8.
In cross-examination Mr Zavodny was taken to three of the invoices issued to “John and Jane Roati” for mowing and associated services performed at 31 Gossner Street, Lucinda,[240] the address of Mrs Roati’s cottage. He asserted those invoices were expenses of his notwithstanding that they were directed to the Roatis.[241] Whether he had paid or was still indebted to the Roatis in respect of the invoiced amounts was not expressly addressed. Not without some hesitation I am prepared to infer of the 27 exhibited invoices which were issued to the Roati’s that they were for paid services which Mr Zavodny bore the cost of.
[240]Ex 53.
[241]T2-27 L35.
My drawing of that inference was made simpler by the defendants’ concession that the award for mowing and associated services should be $2,338. The defendants arrive at that figure after deducting invoiced sums which appear to be for work performed in periods when Mr Zavodny was not in residence at 31 Gossner St.[242] They make the point he was not renting the premises and there is no evidence he held any obligation to maintain it when he was not using it. They note it is not even clear why Mr Zavodny was obliged to care for the yard when he was using the premises.
[242]See for example the cross-examination of Mr Zavodny at T2-27 L42, T2-28 L19, T2-28 L25.
Given the sketchy state of the evidence the total of $2,338 conceded by the defendants is reasonable. I would award $2,338 for mowing and related services.
As to past cleaning expenses, six documents disclosed to the defendants by Mr Zavodny in support of his asserted paid cleaning expenses of $1,105 were exhibited.[243] Those documents are either invoices or evidence of invoiced payments. They total $1,460, however only three of them, totalling $680, are directed to Mr Zavodny. Of the other three invoices, one totalling $60 is directed to the same email address that some of the invoices directed to Mr Zavodny were sent to, but it does not indicate who the invoice was invoiced to. Of the remaining two, one for $355 was directed to Roati Legal and the other is a receipt for payment by Roati Legal of an invoice in the sum of $365.
[243]Ex 56.
The defendants did in their submissions concede a compensable amount of $1,460. Yet Mr Zavodny continued to only claim $1,105, even by the time of submissions. In light of the defendants’ concession but in circumstances where I am asked to infer on skeletal evidence that the invoices were for paid cleaning services which Mr Zavodny bore the cost of, I will only draw that inference to the extent it relates to $1,105 worth of the invoices.
I would award $1,105 for past cleaning expenses. This would give a total award for past paid services of $3,443. However, judgment was reserved and some further allowance ought be made for what I am prepared to infer would have been further such expenses in the interim. The defendants’ analysis of weekly costs derived from the tendered invoices[244] would suggest an additional amount of $433.28, giving a total of $3,876.28.
[244]Defendants’ outline [41], [43].
I will award $3,876.28 for past paid services.
Past special damages
Past special damages were agreed between the parties at the sum of $15,282.68.[245]
[245]T2-49 L22. An amount claimed by Townsville Hospital for hospitalisation fees listed in special damages schedule B as $7,843, which was not included in the agreed special damages award, need not be the subject of an order because there has been an indemnity given in relation to it as between the parties – T3-8 LL10-20.
The parties are also agreed that the Medicare refund was $4,770.20 leaving a special damages balance of $10,512.48 eligible to bear interest, which interest the parties agree should be .485 per cent (one-half of .97 per cent) from the date of the accident to the date of judgment.[246]
[246]That period, from 10 September 2014 to 13 March 2020, was five years six months and four days (or 2012 days or 287 weeks and three days).
This would result in total interest payable on special damages of $280.90.
Interest on past economic loss
It remains to calculate the interest on other past economic loss. Section 60 of the Act precludes the awarding of interest on general damages.
The awards of $266,054.04 for past loss of earnings, $26,398.56 for past lost superannuation and $3,876.28 for past paid services, should attract interest. Those awards total $296,328.88. That amount of loss accumulated over the period from the date of the accident to the date of judgment. Given s 60(2)’s requirement that interest relate in an appropriate way to the period over which the loss was incurred I would apply one half the appropriate rate of interest to the period from the date of the accident to the date of judgment. The appropriate rate of interest stipulated by s 60(3) as being the rate for 10 year Treasury bonds at the beginning of the current quarter, is 1.35 per cent.
I will therefore apply a rate of (1.35% x .05 =) .675 per cent to $296,328.88 (the total past economic loss not including general or special damages) for the period from the date of accident to the date of judgment. This gives an amount of $11,019.30.

I will accordingly award interest on the total past economic loss not including general or special damages, in the amount of $11,019.30.
Future cleaning and mowing and yard maintenance services
Mr Zavodny’s quantum statement asserted he will require ongoing commercial assistance with domestic cleaning and mowing and yard maintenance in the future. I accept his impaired physical capacity precludes him from mowing and tending to any demanding yard maintenance. While he would be capable of tending to some cleaning tasks, he would struggle to tend to vigorous cleaning tasks.
In the course of the trial I was informed it was agreed that an hourly rate of $40 per hour should be adopted in respect of any allowance to be made for future care.[247] The defendants evidently did not understand that related to paid services like mowing and outdoor services and cleaning. They submit that the best evidence of the likely future need and cost of paid mowing and cleaning services is the evidence of past charging and its frequency. They submit, using that evidence to ascertain average costs, for a cost of $12 per week for mowing and $15 per week for cleaning, that is, a weekly total of $27.
[247]T3-9 L20.
I am conscious that Mr Zavodny’s yard would not need mowing and associated maintenance weekly year round and that his need for paid cleaning services relates only to vigorous cleaning tasks. Nonetheless, even allowing for these factors diminishing an average weekly rate for such assistance, a weekly total of $27 appears inadequate, particularly in light of commercial rates evidenced in Mr Scalia’s report.[248]
[248]Ex 7 p 22.
A premise of the defendants’ past needs-based approach is that Mr Zavodny previously had sufficient funds to secure and pay for the services as needed. It is implausible that the paid services were adequate to assist him to maintain a consistently tidy yard and house. It is likely that Mr Zavodny suffered a less consistent standard because of financial constraints.
In the circumstances I would allow $50 a week for future cleaning and mowing and yard maintenance services.
The parties’ submissions each contended for, and I will adopt, a compensable future period of 10 years.
The present value of an allowance of $50 per week, at 5 per cent, applying a multiplier of 413 is $20,650. I would discount that amount by 15 per cent for contingencies to $17,552.50.
I will award $17,552.50 for future cleaning and mowing and yard maintenance services.
Future special damages
The only future special damages conceded by the defendants relates to podiatry costs. The podiatrist opined there is a future need for annual review at a cost of $70 and a yearly replacement cost for orthoses of $247.50. This is an annual total of $317.50 or a rounded weekly cost of $6.11. I would allow for a weekly cost of $6.11.
The defendants’ submissions appear to concede it is appropriate that such allowance ought run for 20 years based on Mr Zavodny’s statistical life expectancy. That period of life expectancy appears to be a rounded estimate of life expectancy derived from the Australian Bureau of Statistics publication and I will adopt it in assessing special damages.
The submissions by counsel for Mr Zavodny relied upon schedule B to the quantum statement in support of the various categories of special damage claimed. That schedule claims future special damages by reference to various categories of future special damage outlined in Mr Zavodny’s quantum statement at [76]-[88] namely:
·Future medical expenses;
·Future rehabilitation expenses;
·Future pharmaceutical expenses;
·Future aids and equipment expenses;
·Future travel expenses.
Future medical expenses
Mr Zavodny’s quantum statement asserts that he considers he will need to consult his general practitioner approximately six times per year at a cost of $70 per consultation. No evidence was proffered as to what those consultations would relate to and what the foundation for their “need” was. In the absence of such evidence it nonetheless remains a reasonable inference from the nature and gravity of Mr Zavodny’s three accident-related injuries and the ongoing difficulties they cause him that he will, over the years, average at least three consultations with a general practitioner per year in connection with the consequences to him of those injuries. I would allow for three general practitioner consultations a year at $70 per consultation, that is, $4.04 per week, for 20 years.
Mr Zavodny’s quantum statement asserts he will need to undergo further medical investigations in relation to his left shoulder which might include X-rays, ultrasound and MRI imaging prior to being referred to an orthopaedic surgeon. He claims $3,000 for those investigations. He claims a further $18,730 as the cost of future surgical treatment on his left shoulder. The latter figure is founded on an amount cited by Dr Maguire,[249] however the only evidence in support of Mr Zavodny’s need for further medical investigation of his shoulder and surgical treatment of his shoulder is this observation in Dr Maguire’s first report:
“In reference to his shoulder, in the long term he may require stabilisation of the acromioclavicular joint and certainly may benefit from distal clavicle excision and subacromial decompression.”[250]
[249]Ex 6.
[250]Ex 5 p 9.
Unfortunately Dr Maguire’s estimated cost of undertaking surgery does not distinguish between the cost of surgery for distal clavicle excision and subacromial decompression, as opposed to surgery for stabilisation of the acromioclavicular joint. In the absence of any opinion as to the probability that Mr Zavodny will, in the long term, require stabilisation of the acromioclavicular joint I cannot infer such surgery would be likely. On the other hand, given Dr Maguire’s opinion as to the prospective benefit of distal clavicle excision and subacromial decompression, I am prepared to infer Mr Zavodny likely would undergo surgery for such excision and decompression. It follows I am likewise prepared to infer Mr Zavodny will incur the cost of some further medical procedures and referrals in the lead-up to such surgery. Once again, the breakdown of such costs has not been the subject of evidence. In circumstances where I accept Mr Zavodny will undergo medical investigation and surgical treatment in connection with his left shoulder injury and the only real evidence about cost is Dr Maguire’s estimate, I will take the conservative approach of awarding half that estimate, namely ($18,730 ÷ 2 =) $9,365. I am confident at least that amount would be required. I am of course conscious it may prove to be inadequate but, if so, that will be a product of the state of the evidence before me.
Mr Zavodny’s quantum statement asserts he will require an initial assessment and follow-up consultation by a psychiatrist in the future and seeks an award of $380 for those two attendances, a total of $760. Those amounts are consistent with session costs mentioned in Dr Caniato’s report.[251] I do not overlook that Dr Caniato thought Mr Zavodny was unlikely to engage in psychiatric treatment and did not want to take psychiatric medications, but I accept Mr Zavodny’s evidence that he will at least require an initial assessment and follow-up consultation. In the circumstances the claim to $760 appears modest and I will allow it.
[251]Ex 11 p 12.
Future rehabilitation expenses
Mr Zavodny’s quantum statement asserts he will require one physiotherapy treatment session per month at a cost of $70 per treatment. That assertion is unaccompanied by any indication from Mr Zavodny of what the physiotherapy treatment would be for and why it would be needed. However I note Dr Thomson opined Mr Zavodny would benefit from 12 physiotherapy treatments over eight weeks at an average cost of $100 per attendance.[252] In light of that evidence I would allow a fixed award of $800 for physiotherapy treatment.
[252]Ex 3 p 5.
Mr Zavodny’s quantum statement asserts he will require approximately six fortnightly psychological counselling treatments at a cost of $200 per session. That cost is also consistent with the costs cited in Dr Caniato’s report[253] although his total cost estimate for those sessions at $200 per session was $5,000 per year. Mr Zavodny is only claiming for six such sessions in the total sum of $1,200. Despite his apparent reticence to engage in psychiatric treatment, alluded to in the report of Dr Caniato,[254] I infer it is implicit in Mr Zavodny’s perception he will require six such counselling sessions that he does indeed intend to undertake them. I would allow the sum of $1,200 for future psychological counselling.
[253]Ex 11 p 12.
[254]Ex 11 p 12.
Future pharmaceutical expenses
Mr Zavodny’s quantum statement asserts he will incur expenses to purchase analgesics/anti-inflammatories, heat relief creams, anti-inflammatory gels and other pharmaceutical items including prescription medication in the future. This assertion is followed in the quantum statement by the following requirements:
·One packet of analgesic medication per week at $8 per week;
·One tube of heat relief cream per month at an average costs of $4.62 per week;
·One tube of anti-inflammatory gel per month at an average weekly cost of $5.77 per week;
·Various other pharmaceuticals including prescription medications $5 per week.
Mr Zavodny claims the total of those weekly figures, $23.39, as payable for 20 years for future pharmaceutical expenses.
Once again no specific evidence was adduced from Mr Zavodny in support of these products’ costs or the need for them. I note Dr Fraser opined the yearly cost of such medications would be $800, which equates to $15.38 per week. I accept Mr Zavodny will, from time to time, require analgesic medication, heat relief cream, anti-inflammatory gel and other pharmaceutical products including prescription medications in connection with his injuries. I accept that will invariably cost Mr Zavodny money and he should be compensated for it. While the amount claimed does not present as obviously excessive, the state of the evidence again causes me to take a conservative approach. I would award $15 per week for future pharmaceutical expenses.
Future aids and equipment expenses
In Mr Zavodny’s quantum statement he claims the unremarkable costs of the following items to assist him with his daily activities as recommended by Mr Scalia:
·Walking stick at a cost of $38;
·Shower chair at a cost of $130;
·Hand-held shower at a cost of $98;
·Grab rails at a cost of $78;
·Non-slip floor coating at a cost of $69.
He claims the total of those amounts, $413, for initial purchase cost of equipment which I readily infer he would acquire and use. I would allow that amount.
He also claims the sum of $1.25 per week as a recurring cost for replacement aids and equipment. That equates to a cost of $65 a year which presents as a quite conservative annual cost for the purpose of ensuring Mr Zavodny has functional aids and equipment into the future. I would allow the recurring cost of $1.25 per week for future aids and equipment expenses.
Future travel expenses
In Mr Zavodny’s quantum statement he estimates he will be required to travel approximately 240 kilometres per year seeking medical, pharmaceutical and rehabilitation treatment for his injuries. He claims that expense at the rate of 90 cents per kilometre, constituting a recurring weekly cost of $4.15.
In light of my acceptance of some of the various categories of future special damage above, it is inevitable that travel will be required. Mr Zavodny’s estimate appears conservative but without explanation of the proposed rate of 90 cents per kilometre I would adopt the Australian Taxation Office’s rate of 68 cents, giving a weekly cost of $3.14. I will allow a recurring weekly cost of $3.14 for future travel expenses.
Summary of fixed future special damages
The above findings support an award of fixed future special damages as follows:

Medical investigation and surgery re shoulder

$ 9,365.00

Two psychiatric consultations

$     760.00

Future psychological counselling

$ 1,200.00

Physiotherapy

$     800.00

Initial equipment cost

$     413.00

Total fixed future special damages:

$12,538.00

I will award $12,538.00 for fixed future special damages.

The above findings support an award to cover recurring weekly costs of future special damages constituted as follows:

Podiatrist and orthoses

$ 6.11

General practitioner attendances

$ 4.04

Future pharmaceutical expenses

$15.00

Future aids and equipment expenses

$ 1.25

Future travel expenses

$ 3.14

Total:

$29.54

Multiplier @ 5% interest for 20 years

x 666

Present day value of above weekly recurring costs

$19,673.64

Less 15% for contingencies

$ 2,951.05

Total present day value of recurring future special damages:

$16,722.59

I will award $16,722.59 for the recurring weekly costs of future special damages.
Total damages

The above findings give rise to the following calculation of total damages to be awarded:

General damages

$ 48,950.00

Past economic loss

$296,328.88

Past loss of earnings (including loss of non-cash benefits)
$266,054.04

Past loss of superannuation

$ 26,398.56

Past paid services

$   3,876.28

Total

$296,328.88

Interest on past economic loss (excluding general and special damages)

$ 11,019.30

Past special damages

$ 15,282.68

Interest on past special damages

$      280.90

Future loss of earnings (including loss of non-cash benefits)

$206,094.47

Future loss of superannuation

$    9,218.25

Future cleaning and mowing and yard maintenance services

$ 17,552.50

Fixed future special damages

$ 12,538.00

Recurring future special damages

$ 16,722.59

Total damages

$633,987.57

Orders

It will be necessary to hear the parties as to costs if costs are not agreed.
My orders are:
1. Judgment for the plaintiff against the second defendant in the amount of $633,987.57.
2. I will hear the parties at 9.15 am 1 April 2020 as to costs, if the parties have not by then informed the Registry that costs are agreed.

CITATION:	Zavodny v Couper & Anor [2020] QSC 42
PARTIES:	ALAN FRANK ZAVODNY (Plaintiff) v KEVIN RAYMOND COUPER (First Defendant) and QBE INSURANCE (AUSTRALIA) LIMITED (Second Defendant)
FILE NO/S:	SC No 523 of 2016
DIVISION:	Trial
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	13 March 2020
DELIVERED AT:	Cairns
HEARING DATE:	13, 14, 18, 19 November 2019
JUDGE:	Henry J
ORDERS:	1. Judgment for the plaintiff against the second defendant in the amount of $633,987.57. 2. I will hear the parties at 9.15 am 1 April 2020 as to costs, if the parties have not by then informed the Registry that costs are agreed.
CATCHWORDS:	TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – GENERALLY – where plaintiff travelling by bike along road – where parked car reversed quickly from parking spot on side of street – whether plaintiff was keeping adequate lookout – whether plaintiff travelling at excessive speed – whether plaintiff ought to have been aware he was not readily visible to drivers of parked vehicles DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – where plaintiff had history of work as master of fishing vessels – where plaintiff injured ankle and shoulder when falling off bike caused by negligence of first defendant – where plaintiff developed adjustment disorder with depressed mood – where liability admitted – where quantum of past and future earnings in issue – whether injuries and psychiatric condition prevent plaintiff returning to chosen occupation – whether court can rely upon plaintiff’s assertions of what employment opportunities he would have perused DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – DAMAGES FOR GRATUITOUS SERVICES – where plaintiff received past care and assistance – whether past care and assistance meets threshold in s 59 Civil Liability Act 2003 (Qld) Civil Liability Act 2003 (Qld), s 55, s 59 Civil Liability Regulation 2003 (Qld) Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld), s 129(1) Brown v Holzberger [2017] QCA 295, cited Boon v Summs of Qld Pty Ltd [2015] QSC 162, cited Minchin v Public Curator of Queensland [1965] ALR 91, cited Nunan v Gerblich (1974) 10 SASR 39, cited Calverly v Green (1984) 155 CLR 242, distinguished Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, considered Guidera v Government Insurance Office (NSW) (1990) Aust Torts Reports 81-040; (1990) 11 MVR 423, considered Rossi v Westbrook and Anor [2011] QSC 311, cited
COUNSEL:	A R Philp QC with R Armstrong for the plaintiff M A Jonsson QC with R Morton for the defendants
SOLICITORS:	Roati Legal for the plaintiff Barry.Nilsson for the defendants

Medical investigation and surgery re shoulder	$ 9,365.00
Two psychiatric consultations	$ 760.00
Future psychological counselling	$ 1,200.00
Physiotherapy	$ 800.00
Initial equipment cost	$ 413.00
Total fixed future special damages:	$12,538.00

Podiatrist and orthoses	$ 6.11
General practitioner attendances	$ 4.04
Future pharmaceutical expenses	$15.00
Future aids and equipment expenses	$ 1.25
Future travel expenses	$ 3.14
Total:	$29.54
Multiplier @ 5% interest for 20 years	x 666
Present day value of above weekly recurring costs	$19,673.64
Less 15% for contingencies	$ 2,951.05
Total present day value of recurring future special damages:	$16,722.59

General damages	$ 48,950.00
Past economic loss	$296,328.88
Past loss of earnings (including loss of non-cash benefits)		$266,054.04
Past loss of superannuation		$ 26,398.56
Past paid services		$ 3,876.28
Total		$296,328.88
Interest on past economic loss (excluding general and special damages)	$ 11,019.30
Past special damages	$ 15,282.68
Interest on past special damages	$ 280.90
Future loss of earnings (including loss of non-cash benefits)	$206,094.47
Future loss of superannuation	$ 9,218.25
Future cleaning and mowing and yard maintenance services	$ 17,552.50
Fixed future special damages	$ 12,538.00
Recurring future special damages	$ 16,722.59
Total damages	$633,987.57