Robert Allan Saunders By His Next Friend Karen Ann Gilligan v the Nominal Defendant [1988] ACTSC 37 (30 June 1988)

SUPREME COURT OF THE ACT

ROBERT ALLAN SAUNDERS by his next friend KAREN ANN GILLIGAN v. THE NOMINAL
DEFENDANT
S.C. No. 1437 of 1986
Negligence - Volenti Non Fit Injuria - Contributory Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Negligence - relationship of driver to passenger giving rise to duty of care.

Volenti Non Fit Injuria - Relevance of defence of volenti non fit injuria - defendant must establish that passenger was in full possession of his faculties so as to be able to observe the driver's drunken state.

Cook v Cook (1986) 68 ALR 353

The Insurance Commissioner v Joyce [1948] HCA 17; (1984) 77 CLR 39

Nettleship v Weston (1971) 2QB 691

Roggenkamp v Bennett [1950] HCA 23; (1950) 80 CLR 292

Banovic v Perkovic (1982) 30 SASR 34

HEARING

CANBERRA
30:6:1988

ORDER

There be judgement for the plaintiff in the sum of $97,718.70.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff in a motor vehicle accident on Saturday, 12 April 1986. The plaintiff was travelling as a passenger in the front seat of an uninsured Holden Station Wagon in Dryandra Street, O'Connor in the Australian Capital Territory, when the vehicle left the road and collided with a tree. There was no dispute that the vehicle was uninsured and that the proceedings have been properly instituted against the Nominal Defendant.

2. Particulars of negligence alleged against the driver are:
(a) Driving at an excessive speed;

(b) Failing to keep any or any proper lookout;
(c) Failing to have or to keep any or any proper
control of the said motor car;
(d) Failing to steer or control the said motor car so
as to avoid the said collision;
(e) Failing to apply the brakes of the said motor car
in time to avoid the said collision or at all;
(f) Driving onto the wrong side of the road;
(g) Failing to stop, to slow down, to swerve or in any
other way so to manage or control the said motor
car to avoid the said collision;
(h) Driving when he knew or ought to have known that
the front brakes of the vehicle were defective.

3. By its defence the defendant has denied each and every allegation of negligence and has pleaded voluntary assumption of the risk of injury by travelling as a passenger in the motor vehicle when the plaintiff knew that the driver was intoxicated to such an extent as to be incapable of exercising proper control over the vehicle. The defence of voluntary assumption of risk is pleaded as a complete defence and as contributory negligence.

4. At the conclusion of the evidence and during addresses, counsel for the defendant applied to amend the defence by adding a further paragraph in the following terms. I gave leave to amend the defence in those terms:

(6) The plaintiff was guilty of negligence in that by
his conduct in drinking to excess he so affected
his ability to judge or make a decision as to a
course of conduct likely to give rise to injury
and failed in the circumstances to appreciate the
danger or to take appropriate steps to assess the
danger, or alternatively deprived himself of the
ability to appreciate or assess the danger of
entering a vehicle the driver of which was
affected by the consumption of alcohol.

5. The plaintiff was born on 15 April 1969 (now 19 years of age). He left school in 1984 halfway through Year 8. He worked in a supermarket for about eight months, then he worked on a milk run and doing french polishing contemporaneously for a period of about 12 months. He then did casual jobs such as milk bar attendant.

6. On 12 April 1986 he was living at the Ainslie Village and spending his days drinking alcohol with friends, hanging around Civic and ending up drunk. This is what he was doing on 12 April 1986. The plaintiff has a very poor recollection of what he did that day.

7. It was submitted on behalf of the defendant that the plaintiff is not to be believed when he said in evidence that he could not remember much about the events leading up to the accident or the facts of the accident itself. The submission was that he was using an assumed loss of memory to mask his knowledge that Colin Geitz, the driver of the uninsured motor vehicle, was affected by intoxicating liquor. It is necessary to review the evidence on the subject.

8. The plaintiff said that on 12 April 1986 he left the Ainslie Village and went to the Civic area where he was drinking with some friends. He thought he may have bumped into Geitz and Kevin Goodhew in Civic. Goodhew was a passenger in the back seat at the time of the accident. The plaintiff said that he knew Geitz, although they were not close friends. He said he could not remember whether he had ever been in Geitz's motor vehicle before. He said he did not remember leaving Civic but by the afternoon he was pretty well drunk. He said he did not remember getting into the motor vehicle and that the only thing he could really remember was Geitz yelling out at him in the car "Look out Robert we are going to hit a tree". He looked up and saw the shadow of a tree. He said that he was a passenger in the front seat, Geitz was driving and Goodhew was in the back seat. His next recollection was that of waking up in the ambulance for a couple of seconds and then being at hospital.

9. In cross-examination the plaintiff said that he thought he had walked from Ainslie Village to Civic and that he had gone there intending to get drunk. He said that normally he would have walked back to Ainslie Village, but sometimes he got a lift back. He said that he did not even think about whether Geitz had been drinking and denied that he knew that the fact that Geitz had been drinking was a problem in his case for damages.

10. When shown a statement that he had made to Senior Constable Emerton of the Australian Federal Police on 23 April 1986 while in hospital, the plaintiff identified his signature at the bottom of the statement but denied any recollection of having been interviewed by Senior Constable Emerton, telling him what was in the statement and signing it. The statement signed by the plaintiff on 23 April 1986 was in evidence (Exhibit A) and was in the following terms:

"RCH
23/4/86 8.10 pm
Robert Alan Saunders
31 Trickett Street
Holt
DOB 15/4/69
Occupation Unemployed
My full name, address and occupation is as stated
above. On Saturday 14 April 1986 I was a passenger in
the left hand front passengers seat of a Holden Station
wagon which was being driven by Colin GEITZ. Myself
and Kevin Goodhew were picked up by Colin after lunch
in Civic and went to a number of places and then to
Colins Aunts in O'Connor. I am unable to remember much
about the evening except when we left Colins Aunts
place it was dark, Colin was driving, Kevin was in the
rear. The only other thing I remember is talking to
Ambulance men for a few seconds, casualty for a few
seconds and waking up in my room at Hospital.
Prior to being picked up by Colin Kevin and I
consumed a bottle of port.
Apart from what I have told you I am unable to
remember anything else relating to the accident in
which I was involved."

11. He was cross-examined about the contents of the statement. He denied any recollection of getting into the vehicle and putting a seatbelt on as stated in the police statement.

12. Geitz had also been interviewed by Senior Constable Emerton and the content of that interview was in evidence in the form of Senior Constable Emerton's report about the accident (Exhibit 8). The plaintiff was cross-examined about certain facts which had been conveyed to Senior Constable Emerton by Geitz. He said that he knew the Toora Women's Refuge and that he had a friend there at the time of the accident. He said he roughly remembered that their intention was to go and see her that night but he could not remember the headlights of the vehicle being on, nor the accident itself. When pressed in cross-examination he said he remembered drinking a bottle of port with Geitz that afternoon and that he must have been doing that in a group. He said that he had been informed of those matters after the accident and while he was in hospital.

13. I find that when the plaintiff entered the motor vehicle before it ended up against the tree in Dryandra Street, O'Connor, he was well affected by the intoxicating liquor he had consumed that day. I also find that he was so well affected that he did not make any particular observation of Geitz as a driver and did not take into account the risk involved in travelling as a passenger in the front seat of a motor vehicle driven by Geitz. I also find that at the time of the accident Geitz was well affected by intoxicating liquor. The accident happened at about 7.55 pm. A sample of Geitz' blood taken at 9.35 pm was analysed and was found to have a blood alcohol content of 189 milligrams per 100 millilitres of blood, i.e. .189. In his admissions to the police, Geitz also confirmed that he had been drinking port and had drunk about a bottle of port shortly before the accident. He ascribed "too much alcohol" as the reason for the accident.

14. Dryandra Street is a single carriageway bitumen road and the section where the accident happened was just after a gradual righthand bend leading down to the intersection of Dryandra Street and Belconnen Way. It is apparent from a tyre scuff mark on the roadway that the vehicle had been travelling in a general northerly direction and crossed from its correct side of the roadway to the incorrect side of the roadway and collided with a tree on the eastern side of the footpath on the eastern edge of Dryandra Street. Very explicit photographs of the vehicle in collision with the tree were in evidence (Exhibit 6).

15. It was also established on the evidence that the vehicle had a defective braking system at the time of the accident. It was examined by Constable R.W. Roy of the Australian Federal Police on Sunday, 13 April 1986, that is the day after the accident. As a result of his examination Constable Roy was unable to locate a mechanical failure which in his opinion may have contributed to the cause of the collision. He was, however, able to identify defective brakes on the vehicle. When the brake pedal was applied it went to the floor with little pressure required. The rear wheels locked and could not be turned by hand, but the front wheels could be rotated by hand.

16. Constable Roy found that the rear master cylinder reservoir was at operating level but the front reservoir was empty. The lefthand front drum was in a serviceable condition with the brake linings saturated by hydraulic brake fluid which had leaked from the wheel cylinder. The righthand front brake drum and linings were in a serviceable condition.

17. Constable Roy deduced that loss of hydraulic brake fluid from the lefthand front brake cylinder eventually resulted in the master cylinder being emptied, resulting in a complete loss of front brakes. He was of the opinion that the driver of the vehicle would have been aware of the gradual brake fluid loss because the loss would have occurred over a period of time and mileage.

18. Mr Adrian Lewis, consulting engineer, gave evidence of the consequences of a defective braking system in the type of Holden station sedan which was involved in the accident. His evidence was that the effect of applying the brakes, provided there was some fluid in the front master cylinder, would be that the righthand front brake would work till the fluid drained out of the lefthand brake drum and the car would pull to the right, swinging the motor vehicle to the right.

19. In all the circumstances I am not prepared to conclude that the cause of this accident was defective braking causing the vehicle to veer to the right and hit the tree. I am not satisfied on the evidence that it would have been necessary for Geitz to apply the brakes at the point where the collision with the tree occurred as there was still almost 200 metres to go before the intersection with Belconnen Way. It may well have been appropriate for him to take his foot off the accelerator. I conclude that the accident happened because Geitz failed to keep proper control of the motor car and drove on to the wrong side of the road causing the vehicle to collide with the tree. He contributed to his failure also no doubt by drinking to such an extent as to be unable to maintain effective control over the vehicle.

20. In his interview with Senior Constable Emerton, he said that he was not sure of the street he was travelling in at the time of the collision, nor was he sure of the direction in which he was travelling. He knew that he had gone from his aunt's residence at 7 Burt Street, O'Connor, and was travelling to Toora Women's Refuge. In answer to the question, "How did the collision occur", he said, "Haven't got a clue". He did not even know what he had collided with. His last recollection was being at his aunt's having a few drinks. He was able to remember what he had been drinking and said that they had drunk about a bottle of port each. He did not know in what direction they had travelled after leaving his aunt's residence. He put his inability to recall the accident as being due to too much alcohol.

21. He could not explain why his vehicle had run off the roadway and collided with the tree or why he had gone on to the incorrect side of the road. He supposed that he had been going too fast. He certainly knew that his brakes were defective, but as I stated earlier there is really no evidence that he applied the brakes before hitting the tree. He was asked about that by Senior Constable Emerton and he said that he didn't have a clue. It is true that when asked whether he thought the faulty brakes may have contributed to the collision he speculated that most probably they had. However, as stated earlier, I am not prepared to find that the defective brakes had anything to do with the accident.

22. In Cook v. Cook (1986) 68 ALR 353 the High Court (Mason, Wilson, Deane and Dawson JJ.) set out the principles of law governing the relationship between a passenger who has been injured in a motor vehicle and the driver of the vehicle, and stated that the relevant relationship of proximity established the duty of care owed by the driver to his passenger. The High Court went on to consider the dissenting judgment of Dixon J. (as he then was) in The Insurance Commissioner v. Joyce [1948] HCA 17; (1948) 77 CLR 39, and the decision of the English Court of Appeal in Nettleship v. Weston (1971) 2 QB 691. The High Court cited the observations of Salmon LJ in Nettleship and explained his general agreement with the principles expounded by Dixon J. in Joyce:

"The duty of care springs from relationship. The
special relationship which the passenger has created by
accepting a lift in the circumstances postulated surely
cannot entitle him to expect the driver to discharge a
duty of care or skill which ex hypothesi the passenger
knows the driver is incapable of discharging. ... I
should like to make it plain that I am not suggesting
that whenever a passenger accepts a lift knowing that
the driver has had a few drinks, this displaces the
prima facie duty ordinarily resting on a driver. ...
Indeed, Sir Owen Dixon dissented in Joyce's case,
because he did not agree that the evidence was capable
of establishing that the plaintiff passenger knew that
the driver was so drunk as to be incapable of
exercising ordinary care and skill. In practice it
would be rare indeed that such a defence could be
established."

The High Court went on to say:

"It is neither possible nor desirable to seek to
identify in advance the circumstances which will, as a
matter of law, suffice to take a relationship out of
the ordinary class of relationship between the driver
of a motor vehicle and a passenger in it into a special
category. The most that can be said is that the
circumstances must be special and exceptional in the
sense that they so alter the ordinary relationship of
driver and passenger that it would be plainly
unreasonable for the standard of the duty of care owed
by the driver to the passenger to be what could
reasonably be expected of an experienced, skilled and
careful driver."

23. In Roggenkamp v. Bennett [1950] HCA 23; (1950) 80 CLR 292 at 300, McTiernan J. and Williams J. cited the convenient statement of the elements of the defence of volenti non fit injuria from Halsbury's Laws of England, 2nd Ed., Vol.23 at pp 716-718 (repeated in the 3rd Ed., Vol.28, pp 82-84):

"In order to establish the defence, the plaintiff must
be shown not only to have perceived the existence of
danger, for this alone would be insufficient, but also
that he fully appreciated it and voluntarily accepted
the risk. The question whether the plaintiff's
acceptance of the risk was voluntary is generally a
question of fact, and the answer to it may be inferred
from his conduct in the circumstances. The inference
may more readily be drawn in cases where it is proved
that the plaintiff knew of the danger and comprehended
it, as, for example, where the danger was apparent, or
proper warning was given of it, and there was nothing to
show that he was obliged to incur it, than in cases
where he had knowledge that there was danger but not
full comprehension of its extent, or where, while taking
an ordinary and reasonable course, he had not an
adequate opportunity of electing whether he would accept
the risk or not."

24. In Banovic v. Perkovic (1982) 30 SASR 34 King C.J. at p 36 correctly interpreted these observations in Roggenkamp v. Bennett, supra, to entail in a drink driving case that the plaintiff perceived that the driver was or could well be intoxicated to such a degree as to render him an unsafe driver, that he appreciated fully that it was dangerous to travel in the vehicle as a passenger, and that he, nevertheless, decided voluntarily, i.e. without compulsion or necessity, to take the risk involved in travelling as a passenger.

25. Having regard to my findings of fact set out above that when he entered the motor vehicle the plaintiff was well affected by intoxicating liquor, that he was so well affected that he did not make any particular observation of Geitz as a driver and did not take into account the risk involved in travelling as a passenger in the front seat of a motor vehicle driven by Geitz, the defence of volenti non fit injuria fails.

26. I turn to consider contributory negligence. Contributory negligence exists where a plaintiff has failed to exercise the care for his own safety which a reasonable person would have exercised in the circumstances. In my opinion it is clear law that in order to establish contributory negligence based upon the observable state of intoxication of the driver, the defendant must establish that the passenger was in full possession of his faculties so as to be able to observe the driver's drunken state. In Joyce's case, Latham C.J. said at p 46:

"But the facts of the case supposed will, if the
passenger is in possession of his faculties, and the
drunken state of the driver is obvious, also establish
contributory negligence. There would be a lack of
ordinary care for the plaintiff's own safety which
brought about his injury."
And later:
"If in the last stage of the journey the plaintiff was
sober enough to know and understand the danger of
driving with (the driver) in a drunken condition, he
was guilty of contributory negligence and he also
voluntarily encountered an obvious risk and his action
should fail.
But if he was not sober enough to know and understand
such a danger, then there is no reason to believe that
his inability to appreciate the danger was other than
self-induced. If he drank himself into a condition of
stupidity or worse, he thereby disabled himself from
avoiding the consequences of negligent driving by (the
driver) and his action fails on the ground of
contributory negligence."

27. Dixon J., as he then was, dissented from that view. He said at p 57:

"If he (the passenger) knowingly accepts the voluntary
services of a driver affected by drink, he cannot
complain of improper driving caused by his condition
because it involves no breach of duty. ... (That) is a
view which seems to require some degree of actual
knowledge on the part of the passenger of the alcoholic
conditions he is accepting."
And later at p 58:
"In the third place the principles of contributory
negligence have been invoked to disable the passenger
from recovery from a driver evidently intoxicated who
has given him a lift. This is the ground upon which in
America the passenger is disentitled. The principle is
that for a man to expose himself unreasonably to a
danger produced by the negligence of another, if he
knows or ought to know of the danger, amounts to
contributory negligence. 'A common form of the type of
contributory negligence ... consists of the plaintiff's
entrusting his safety to a third person whom he knows
to be incompetent, customarily negligent or ill
equipped. Thus, if a plaintiff rides in an automobile
knowing that the driver is drunk, ignorant of driving
or habitually reckless or careless or that the machine
has insufficient brakes or headlights, he can
ordinarily not recover against the defendant through
whose negligence an accident occurs, if the
drunkenness, incompetence or carelessness of the driver
or the bad condition of the vehicle is a contributory
factor in bringing about the accident.'"

And at p 60:

"I cannot accept the view that a man who is unable
through drink to know and accept the risk is to be
taken as accepting it or is disqualified from denying
that he accepted it. That leaves out of account the
defendant's position, who surely cannot excuse himself
on the ground that the plaintiff was in no condition to
exonerate him from his prima-facie duty."
There is no issue of contributory negligence upon the
pleadings and I doubt if, on the facts, one could be
raised. But for the plaintiff, who was not driving the
car, to drink until he was too stupid to observe the
defendant's condition can hardly be considered
contributory negligence of which the accident was a
reasonable or natural consequence."

28. In my view King C.J. was correct in his observations in Banovic v. Perkovic, supra, about the passenger who drinks to excess and thereby deprives himself of the opportunity to make prudent observations of the driver. He said at p 37:

"I do not think, however, that, in the absence of such
circumstances, a passenger is required to refrain from
drinking in order to be able to detect signs of
intoxication in his driver. The safety of the vehicle
and its occupants is the responsibility of the
driver. It is his obligation to remain sober so that
he can discharge that responsibility. The passenger
has no such responsibility. In the absence of some
clear indication that the driver will fail to discharge
his obligation, the passenger can hardly be expected to
take precautions against such failure. Having no
responsibility for the driving, the passenger is free
to drink as much or as little as he pleases. In a
common social situation, one indeed which is commonly
recommended in road safety publicity, one person
assumes responsibility for driving leaving the others
to drink as they see fit. It would be quite wrong, in
my view, to attribute contributory negligence to those
others because their drinking deprives them of the
capacity to notice that the driver has failed in his
obligations."

29. His Honour then cited the words of Dixon J. set out above to the effect that it can hardly be considered contributory negligence for the passenger to drink until he was too stupid to observe the driver's condition.

30. As I have said above, the plaintiff was too stupid, through his own drinking, to observe the manifest intoxication of Geitz. I am satisfied on the evidence of Dr Slater that at the time of the accident Geitz would have had a blood alcohol content of about .157, probably would not be able to walk straight, would be slurring his speech and would be manifesting obvious signs of intoxication. Those signs were there for the plaintiff to see but he was too drunk to see them.

31. I therefore find that the defendant has not established contributory negligence on the part of the plaintiff.

32. The injuries sustained by the plaintiff were:

- Compression and burst fracture of the L3 vertebral
body with some displacement of fragments
backwards;
- Large haematoma over the back;
- Fractured nose;
- Large haematoma to the right peri-orbital region;
- Retro-peritoneal haematoma with some
intra-peritoneal bleeding;
- Loss of consciousness;
- Post-traumatic amnesia.

33. The plaintiff's first recollection after the accident is waking up in the ambulance for a couple of seconds and then being at hospital. He noticed that he had some pain in the chest and that he was lying on his back in bed not able to move.

34. He was first under the care of Dr K.N. Chandran, neuro-surgeon, and Dr D. McKeown, general surgeon. When Dr Chandran saw him the day after the accident he found him in a considerable amount of pain. He was kept under observation until he came under the care of Dr D. McNicol, orthopaedic surgeon.

35. On 2 May 1986 Dr McNicol operated on the plaintiff's lumbar spine and applied Harrington compression instrumentation from L2 to L4. He also performed a posterior spinal fusion over the L2-L4 segments of the spine. Post-operatively his progression was uneventful and he was released after two and a half months in hospital. First he was in a wheelchair and then a walking frame for about a month. He was very dizzy at first and had pain in both hips. He found walking painful. He went home to his mother's residence.

36. He suffered severe pains in the chest and went back to Royal Canberra Hospital on 17 May 1986. He came under the care of Dr Dennis Dyason, general surgeon. No definite cause could be found for his pain. A body cast was fitted during his admission and he was discharged on 23 May 1986.

37. When home again he spent his time just sitting around resting. He had very bad pain in the back, hip and buttocks. He stayed at his mother's residence for a few months. He was wearing the back brace and only took it off to go to bed. His mother helped him with little tasks like doing up his shoe laces.

38. He was under review by Dr McNicol. On clinical examination on 25 September 1986 he was exhibiting some posterior tenderness to posterior percussion of his spine. His range of spinal movements showed forward flexion to his knees and lateral flexion of normal range. Extension was full, rotation was restricted to about three-quarters normal range. At that time he was free of his brace and Dr McNicol thought he was progressing quite satisfactorily.

39. He reviewed him again on 19 February 1987. The plaintiff was still experiencing occasional ache in the right buttock which was aggravated when carrying or bending or with prolonged walking. At that time Dr McNicol could see no reason why the plaintiff could not rejoin the workforce if a full time job were made available to him.

40. Dr McNicol reviewed him again on 25 November 1987. He noted that he was fit and well and extremely well-muscled but the plaintiff was complaining of bilateral buttock pain with prolonged standing and associated muscle spasm with occipital headaches. Dr McNicol decided to explore the site of the fusion operation. This was undertaken at Calvary Hospital on 3 February 1988. It was found that the fusion mass was solid and his spinal fusion was complete. The Harrington rods were trimmed back and his post-operative course was uneventful. In his report of 3 May 1988 Dr McNicol stated that the plaintiff was fit to resume normal activities.

41. Dr McNicol also gave evidence on behalf of the plaintiff. He confirmed that the plaintiff has no impingement on the sciatic nerve and no neurological complications. He reiterated that the plaintiff is fit for work and has been ever since the fusion became solid. He confirmed that he can see no reason why the plaintiff cannot rejoin the workforce. He felt that in November 1987 the plaintiff had been "bunging it on a bit". He said that the plaintiff is fit for moderately heavy labouring, cleaning, supermarket work and that sort of job. He reiterated that the operation on the plaintiff's back had been wholly successful. He confirmed that there is some possibility of increased wear and tear at the two levels in the spine above and below the fusion but there were no symptoms of that sort of trouble so far.

42. The plaintiff said in evidence that he still suffers pain in the back and hips and that his legs get wobbly until he gets "motivated". He said that walking hurts but that he can handle it. His sleeping is inconsistent. He has some good nights and some bad when the back pain comes on. After a bad night, which might happen three to four times per week, his back feels sore and he feels generally unwell the next day and can hardly walk. He said that he cannot ride trail bikes as he used to before the accident and is very nervous about travelling in motor vehicles. He can run if he has to but it makes his back very sore.

43. Dr F.E.S. Keiller, general surgeon, examined the plaintiff on 30 November 1987 and 8 April 1988. Dr Keiller thought that the plaintiff's complaints of pain and disabilities were genuine and that he is unfit to return to any form of heavy work, but if light employment could be found for him he should be able to undertake it.

44. I find that the plaintiff has a permanently fused spine at the L2-L4 levels with some restriction of movement. He has two large operation scars on his back. He has some difficulty bending and squatting and his general mobility is somewhat restricted. I accept Dr McNicol's opinion given in evidence that, having regard to the plaintiff's age (18 years) and the success of the operation, he will continue to improve.

45. For pain and suffering, loss of enjoyment of life and all the other matters I am required to take into account on general damages, I provisionally assess the sum of $35,000.

46. With regard to past loss of earnings, the plaintiff has not engaged in any remunerative employment since the accident. He obtained no formal qualifications at school and it appears that at the time of the accident he was living a very idle existence, spending his days drinking alcohol with friends, hanging around Civic and getting drunk every day. At that time he had no employment aspirations. So the plaintiff does not have a good pre-accident work record.

47. The plaintiff's evidence was that in February 1987 he was living at the Ainslie Village again and doing some light caretaking work in exchange for free accommodation and meals. He worked only one to two hours per day and said that even that light work caused pain in his back. He did that work until October 1987 when he gave it up. He claimed that he had looked for jobs at job centres and that he would like to work but had not been able to find any suitable work. He has been in trouble with the police recently and there are charges of malicious damage and stealing to be dealt with during next month. His present assessment is that he does not think that he would be able to do any sort of labouring job or supermarket work and hence he has not applied for any jobs of that type. He was not sure whether he could do a milkbar job but he would be prepared to give it a try.

48. Having regard to the medical evidence, I think the plaintiff has been fit for work of some sort since about 12 months after the accident. I am satisfied that he has not really tried to obtain any sort of employment at all. In the circumstances I think it is reasonable to compensate him on the basis of a past earning loss of about $250-$300 per week for a period of 12 months. I provisionally assess the sum of $13,000 for past economic loss.

49. With regard to the future, both Dr Robson and Dr McNicol gave evidence that any residual disabilities that the plaintiff has will not seriously limit his employment prospects. Mr R.J. Woon, of the Department of Employment, Education and Training which administers the Commonwealth Employment Service, gave evidence that at the time of the accident the plaintiff was already a disadvantaged job seeker because of his lack of education and work skills. He was of the opinion that the plaintiff would need to be made more competitive in the labour market and that his job opportunities could be improved by a job training course.

50. Motivation, of course, is a very important factor in the plaintiff obtaining future employment. There are plenty of people in the community, so the evidence establishes, who manage to obtain and hold jobs notwithstanding their physical restrictions. I am satisfied that there are a number of office cleaning jobs and light gardening jobs in which vacancies occur frequently. There are also jobs in service-stations and other aspects of the motor industry.

51. The plaintiff still has some sort of a drinking problem and has gone on a few drinking bouts since he came out of hospital in February 1988. This problem, together with his lack of motivation and his criminal record, all militate against his employment prospects. Sooner or later he is going to have to do something in the way of earning income. He has recently formed an association with a young woman and a child was born of that relationship recently. The plaintiff intends to co-habitate with the woman and his child in the near future. He is prepared to undertake some form of rehabilitation with a view to strengthening his work prospects.

52. I am satisfied on the evidence that his earning capacity has suffered to some extent but as a matter of overall impression, I think when this litigation is over he will embark upon some form of job training and find some work which he can do without undue consequences. He will never be a big money earner and would not have been without the injuries which he sustained. I approach his loss of earning capacity by allowing a period of about 12 months in which to equip himself for employment, and a further period of 12 months as a buffer period between his present state of indolence and gainful employment. I provisionally assess the sum of $30,000 for loss of earning capacity.

53. Special damages were agreed at $15,718.70.

54. For the purposes of interest I apportion $25,000 of the general damages to the past and $10,000 to the future and apply the usual 14 percent and halve the result to reflect the reality that all the damage was not suffered at the one time. The rounded off figure is $4,000 and I assess that sum.

55. In summary, therefore, my assessments are:

General damages $35,000.00
Past loss of earnings 13,000.00
Future loss of earning capacity 30,000.00
Agreed out of pocket expenses 15,718.70
Interest on portion of general damages 4,000.00
Total $97,718.70

56. There will be judgment for the plaintiff in the sum of $97,718.70.

57. I shall hear counsel on the question of costs.