Hardham v Flood Trading As Topcat Bobcat [2001] ACTSC 107 (16 November 2001)

Last Updated: 11 June 2002

Ivon Rohan Shaw Hardham v Sydney Joseph Flood & Marian Gail Flood Trading As Topcat Bobcat [2001] ACTSC 107 (16 NOVEMBER 2001)

CATCHWORDS

DAMAGES - Personal injury - Below knee amputation - Breach of duty of care by defendant in providing unsafe vehicle and no safety instructions.

Motor Accidents Act 1988 (NSW)

Road Transport (General) Act 1999

Griffiths v Kerkemeyer (1977) 193 CLR 161

Hebditch v Sheppeard (12 July 1996, unreported, per Gallop, Higgins and Ryan JJ)

John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36, (2000) 172 CLR 625

Malec v J.C. Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1

New South Wales Insurance Ministerial Corporation v Hay (1993)18 MVR 375

Southgate v Wateford (1990) 21 NSWLR 427.

Sullivan v Moody [2001] HCA 59

No. SC 652 of 2001

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 16 November 2001

IN THE SUPREME COURT OF THE )

) No. SC 652 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: IVON ROHAN SHAW HARDHAM

Plaintiff

AND: SYDNEY JOSEPH FLOOD & MARIAN GAIL FLOOD T/AS TOPCAT BOBCAT

Defendant

ORDER

Coram: Master T. Connolly

Date: 16 November 2001

Place: Canberra

THE COURT ORDERS THAT:

1. Enter judgment for the plaintiff in the sum of $986,058.

2. The defendant pay the plaintiff's costs.

1. This is a claim for damages for personal injuries arising from an accident which occurred on 25 February 1996 at a rural property on Gundaroo Road Womboin in New South Wales. The plaintiff and his wife, who are both members of the Australian Public Service, reside and work in Canberra but own a rural holding in adjoining New South Wales. They have been developing and improving the block for some years, and the accident occurred when the plaintiff was operating a piece of machinery described as a bobcat owned by the defendant. The plaintiff had engaged the defendant as a contractor to undertake certain earthworks on his property. His claim is based on the alleged negligence of the contractor in requesting and allowing the plaintiff, who was the principal, to operate the machinery, when it was not safe to do so and when the contractor had not instructed the principal in the operation of the machinery, or warning him of essential safety features of the machine.

2. The defendant held a public liability insurance policy with HIH Insurance, and this matter was first listed for hearing in the immediate aftermath of the collapse of that insurance group. It was then adjourned. The matter came on again for hearing on 8 October. The defendants were on that occasion represented by counsel and by a firm of solicitors in their personal capacity. I was advised by counsel for the Floods that he had been in contact with an organisation in New South Wales which he identified as HIH Claims Support Limited, who advised him that the claim was an "eligible" claim. Mr Mildren then sought leave to withdraw from the proceedings, as did the solicitors representing the Floods. They understood the consequences of this action, in that a judgment could be entered against them. Aspects of contributory negligence had been pleaded in this matter, but counsel indicated that the defendants acknowledged that no evidence would be lead in respect of those pleadings. After the withdrawal of the defendant's legal representatives the defendants were personally called by the Sheriff's Officer, but no appearance was recorded. I understand that it is the intention of the plaintiff to seek to recover the damages award from the fund established by the Commonwealth and State Governments in the wake of the collapse of HIH Insurance. The matter proceeded before me in the absence of any representation by the defendant.

3. As the accident occurred in the New South Wales, I must apply the law of that State in determining the matter (John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36, (2000) 172 CLR 625). It seems to me that this accident, although it involved an uninsured and unregisterable earth moving machine on a farm, is still subject to the Motor Accidents Act 1988 of New South Wales. That Act defines "motor accident" in s 3 as:

"an accident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which caused the death of or injury to a person".

4. "Motor vehicle" is defined as: "a motor vehicle or trailer within the meaning of the Road Transport (General) Act 1999", and by that Act motor vehicle is defined as: "a vehicle that is built to be propelled by a motor that forms part of the vehicle".

5. It seems to me that the bobcat is a motor vehicle for the purposes of that Act, and accordingly the accident was, on the plaintiff's case, caused by the fault of the owner of a motor vehicle in the use or operation of that vehicle.

6. Counsel for the plaintiff argued that the Act should not apply on the basis that the motor vehicle was unregistered and uninsured and the damage occurred on private property. This is certainly true, but the Act does not establish these criteria as relevant for the purpose of determining the applicability of the Act. While I accept that there is a policy argument that would support the proposition that the Act was intended to apply to accidents which are subject to the compulsory third party insurance regimen in New South Wales, that is not the way the Act is structured.

7. The plaintiff sustained very significant injuries in the accident, requiring the amputation of his right leg below the knee. He remains a full time public servant, but brings a claim for loss of earnings on the basis of a loss of opportunity for promotion. While such "loss of a chance " claims can be in their nature speculative, the plaintiff's evidence is that he was for many years an officer at the top of the Senior Officer grade, and that in the years proceeding the accident he had been acting as an Assistant Secretary, in the Senior Executive Service. He says, and he brings impressive witness in support of his claim, that had he been able to continue to work the long hours and put in the extensive travel required in this position, which was responsible for organising the privatisation of what had been Commonwealth owned airports, he would have had a strong chance to secure a permanent position in the Australian Public Service. He says that the time off after the accident disrupted his career, but more importantly he has ongoing restrictions flowing from the use of his artificial leg which limit him in terms of travel and long periods in meetings, and which have prevented him from applying for such permanent promotion. He also says that he feels unable to work beyond the age of 55 whereas he had previously intended to work to normal retirement age, although there is no medical evidence which says that his accident related injury would prevent him working to normal retirement age at his present level of responsibility.

8. The plaintiff was born in December 1950 in Melbourne, and after spending his infancy in India, was educated in Canberra, obtaining a Bachelor of Economics Degree from the Australian National University in 1972. He joined the Australian Public Service under the graduate entry scheme, and has risen steadily in financial roles across a range of Commonwealth Departments over the years. He has held various positions at what is now known as the Senior Officer level, and what was previously designated as section head level, from the late 1970's. He was sent to Washington DC in 1983 to undertake a course of study at the International Monetary Fund Institute, and undertook further studies at the Australian National University leading to a Graduate Diploma in Public Policy in 1993. He first had the opportunity to act as a branch head, being a member of the Commonwealth Senior Executive Service, in 1987. In May 1994 he was appointed to an acting Senior Executive Service position in the Federal Airports Scoping Task Force, a joint body established by the Departments of Finance and Transport to look at the issues involved in airport privatisation. He carried this work through again acting in the Senior Executive Service in the Office of Asset Sales from May 1995 to October 1997, and it was this position which he held at the time of the accident. In October 1997 he reverted to his substantive position as a Senior Officer. There were vacant positions at the Senior Executive Service level, but the plaintiff has not applied for these positions, as he says that his leg limits his ability to travel and attend meetings.

9. The plaintiff was originally married in 1974 but this did not last, and he married his present wife in 1979. Mylinh Thi Hardham is also an economics graduate and a public servant, and she obtained promotion to the Senior Executive Service in 1997.

10. Mr Hardham is an experienced public servant, and his evidence satisfies me that he was also very competent in general work around his block, as well as doing building and alteration work to his home and a holiday home. But he had no experience in operating heavy machinery. When he required earthworks on his block in order to improve drainage and water storage capacity, and to prevent erosion gullies from developing, he did not seek to hire earthmoving equipment to operate himself, but engaged Mr Flood to undertake the necessary works. The works were performed over a series of weekends, when the plaintiff was also working on the block.

11. On the day of the accident Mr Flood had three pieces of machinery on the property, being a bobcat fitted with a front end loading device, a bobcat fitted with a back hoe device, and a truck and trailer for moving the machines. The bobcat machines were not registered, and were, I was told, not capable of registration as on road vehicles. When they had to be transported on a public road, they were carried on the truck. On two occasions prior to the accident Mr Hardham says that Mr Flood requested him to move the bobcat fitted with the front end loader device from one work site to another on the block, while Mr Flood moved either the other bobcat or the truck.

12. Mr Hardham says that on a weekend in December 1995 Mr Flood was operating the bobcat with the front end loader levelling off a road. It was necessary to move to another job, and he says that Mr Flood, "asked me to shift the skid steer loader back around to where we're going to work next while he drove the truck around."

13. Mr Hardham says that he had never before driven such a vehicle, and he was not shown any instruction manual or given any formal training. He says that he said that he wasn't sure he could drive the bobcat, but Mr Flood said, "You'll be okay". He was shown simply the two levers to make the vehicle go forwards or backwards, one for each side. There is no steering wheel, hence the description used by Mr Hardham of a "skidsteer" vehicle. He says that when he got into the vehicle he noticed only a safety pull down bar which restrained the operator. He says that there was no seat belt, and he was not advised about the use of any seat belt.

14. The issue of the seatbelt is significant, because I am satisfied from the evidence contained in technical documents tendered in these proceedings that the bobcat that was involved in this accident should have been fitted with a seatbelt which, in addition to the ordinary and important job of restraining the driver, also was wired into the ignition system of the vehicle so that, unless the seatbelt was secured, the vehicle could not be moved. I am satisfied from the evidence of Mr Hardham, and also Mr Montesin, who arrived on the scene of the accident as captain of the local bushfire brigade, but whose occupation is earthmoving, that there was no seatbelt in this bobcat, but that the vehicle was able to be operated. It follows from this that someone had tampered with the safety device. I am satisfied that it was unsafe to allow the vehicle to operate in this condition.

15. Mr Hardham moved the bobcat this short distance with no difficulties. He lowered what he referred to as the "pull down bar" as a device which he assumed would restrain him in the seat. He was not further instructed in the use of this bar, and in particular was not told that, as I am satisfied from the documents tendered, this bar when lifted will shut down the machine. It was important for the safe operation of the machine for an operator to know that this was a method of quickly shutting down the machine, and this information, if imparted to Mr Hardham, would almost certainly have prevented this accident. I am satisfied that Mr Flood as the owner of the machine owed a duty of care to Mr Hardham to properly instruct him in the use of the machine, and that he was in breach of this duty of care in failing to do so.

16. On one other occasion Mr Hadham moved the front end loader bobcat for Mr Flood. On the day of the accident, being a Sunday afternoon, Mr Hardham says that there were two tasks that remained to be done. The back hoe bobcat had to undertake some digging in the dam area, and the front end loader had to move some loose soil in the area on the other side of the dam wall. Mr Flood was engaged in digging the trench. Mr Hardham says that Mr Flood asked whether he still wanted the trench dug, to which he agreed, and then suggested that Mr Hardham move the earth while he dug the trench.

17. Mr Hardham says that he protested that he was not competent to operate the bobcat, but Mr Flood said, "You'll be fine, it's simple." He said that he protested again, but Mr Flood said, "You'll be okay, just take it easy, all you have to do is to shift the topsoil into piles along the spillway." Mr Hardham says that he was given no instructions about how to operate the loader device, and was given no instructions about how the pull down bar operated to arrest the movement of the vehicle and of the front end loader device.

18. Mr Hardham says that he got into the vehicle and lowered the pull down bar. There was no seatbelt. He familiarised himself with the pedal controls to raise and lower the bucket device, and then commenced to move the loose earth. He had moved about six bucket loads when the accident occurred. He says that at one point he stopped and turned off the machine before deciding to continue with the operation.

19. The accident occurred as he was moving the machine with the bucket in an elevated plane with soil in it. He was moving across irregular ground, and the machine lurched forward, tipping the plaintiff forwards and out of his seat. He slid under the pull down bar, and put his feet out to brace himself and prevent himself from slipping. His right foot was outside the cabin seeking a bracing position, but his left foot was jammed on the left pedal, which had the effect of bringing down the bucket and the associated arm.

20. The operation of the vehicle and of the arm and bucket would have been brought to a stop by lifting the cross bar, but the plaintiff did not know this, and indeed was probably hanging on to the cross bar to prevent himself from slipping further forwards. The arm continued to lower, and trapped the plaintiff's right foot, crushing it in the process. Mr Hardham could see that this was happening, but did not know how to prevent it. He says that he was terrified.

21. He was pinned in the machine and in great pain, with the motor still operating. He was out of sight of Mr Flood, who was operating the back hoe bobcat on the other side of the dam wall. After some time he was able to turn off the ignition, and he continued to scream and call for help. After about 10 or 15 minutes his immediate neighbours, Michael and Carol Sparkes, heard his cries, and after identifying the source, came to his assistance. They brought Mr Flood to the scene. He lifted the bucket and arm from the plaintiff's foot.

22. Mr Sparkes gave evidence that on arriving at the scene he looked at Mr Hardham in the cabin of the vehicle, and looked for something that would have restrained him and prevented him from sliding forward. He was clear in his recall that there was no seat belt.

23. I am satisfied that the accident occurred because Mr Flood allowed Mr Hardham to operate this machine without adequately instructing him in the safety features of the vehicle, and moreover allowed him to operate a machine which was not fit for use because it did not have a seat belt fitted to it. I am satisfied that had the seat belt been fitted it would have been used, as Mr Hardham gave evidence that he looked for a restraining device when he first operated the machine, and that had it been used it would have prevented this accident from occurring. I am satisfied that Mr Flood, as a contractor, owed to Mr Hardham, as his principal, a duty of care which was breached by bringing onto Mr Hardham's property, and allowing Mr Hardham to use, a piece of machinery that was inherently unsafe due to the absence of a seat belt.

24. I am also satisfied that Mr Flood breached a duty of care that he owed to Mr Hardham by allowing him to operate the vehicle without instructing him on elementary safety precautions, particularly the way in which the cross bar operates to immediately switch off the machine. This is perhaps counter intuitive, as an untrained person could assume, as Mr Hardham says he did, that the cross bar was a restraining device. As he slid forward he was probably hanging on, or attempting to hang on, to the cross bar, as the arm and bucket came down onto his leg. By pushing the cross bar up he could have prevented the accident from occurring, but he had no knowledge of this. Where a contractor brings machinery onto a job and permits the principal operate the machinery in order to assist with the undertaking, it seems to me that there is a duty of care on the contractor to instruct the principal, or indeed any third party, in the safe operation of the machinery. I am satisfied that this involved in the circumstances of this case a duty to instruct Mr Hardham in the proper operation of the cross bar as a safety device which would shut the machine down, and that this duty was breached, giving rise to liability in tort for the damages suffered by Mr Hardham. It seems to me that a finding of the existence of a duty of care in such circumstances is quite consistent with the High Court's recent restatement of the principles concerning the existence of a duty of care in Sullivan v Moody [2001] HCA 59.

25. There was no evidence lead in this matter by the defendants, and on the evidence before me I am not satisfied that the pleaded issues of contributory negligence are made out. I therefore find that the defendants are liable for the injuries sustained in the accident, and turn to the question of assessment of damages.

26. In assessing damages, I proceed on the basis that the accident was an accident to which the provisions of the Motor Accidents Act 1988 of New South Wales applies.

27. The plaintiff remained at the scene for some time until an ambulance arrived at about 6.35 pm. He was administered morphine by the paramedics, and taken to Woden Valley Hospital, where he was noted to have a gross mid foot fracture, and surgery was performed. The wound was noted to be heavily contaminated by dirt and other material. Mr and Mrs Hardham were originally advised that his foot would be able to be saved, but it became apparent that there was such significant damage that the foot could not be saved, and Mr Hardham was told that an amputation would be necessary on 20 March 1996. Dr Stubbs performed both the original surgery to try to save the foot, and the final amputation, which occurred on 23 March 1996, and refers in his reports to extensive work undertaken between these two procedures by plastic surgeons at the hospital to salvage the foot. Mr Hardham says that he assumed at the time of the accident that he would lose his foot, but that he came to have hope that this would not be the outcome, only to have this hope dashed. This must be taken into account in assessing general damages.

28. The plaintiff was discharged from hospital on 27 March 1996 and commenced rehabilitation under the care of Dr Farnbach. He was fitted with his first prosthesis at about four weeks post surgery. He has had continuing ongoing problems with his prosthetic fittings, and gave evidence that there are problems with the prosthetics department at the Woden Hospital with only two prosthetists for about 1200 patients.

29. No medico legal report from Dr Farnbach was tendered, although his treating notes were in evidence. Dr Stubbs, who was the operating surgeon, reported on 27 November 1997 that the plaintiff, "has made good progress and manages his below knee amputation about as well as anybody does." There is a report from Dr Millons, a consultant surgeon who was for many years head of the Amputee Unit at the Royal Prince Alfred Hospital in Sydney. After noting Mr Hardham's dissatisfaction with the prosthetics that he has had to the date of the report, being December 1999, Dr Millons said:

"I believe that, with appropriate prosthetic fitment and with appropriate overview by a specialist amputee physiotherapist, that the situation could be improved considerably for him."

30. In relation to general damages, as I am satisfied that this is an accident to which the Motor Accidents Act 1988 applies, I am bound by s 70 of that Act which provides, "A court shall not award damages to a person in respect of a motor accident contrary to this Part". The relevant section for determining non economic loss for this accident, being an accident that occurred in February 1996, is s 79A. This follows the familiar provisions in the New South Wales scheme of limiting the award of general damages to a percentage of "a most extreme case".

31. It is well established that the upper limit applies to a broad range of cases, and is not restricted to the most extreme case imaginable (see, for example, Southgate v Wateford (1990) 21 NSWLR 427.

32. Counsel for the plaintiff submitted that damages for non economic loss in this case ought to be assessed on the basis of an award of between 60% and 70% of a most extreme case. This seems to me to be appropriate, and taking into account all of the evidence, I award the plaintiff $192,400, being 65% of the statutory maximum of $296,000.

33. Counsel submitted that, in determining the percentage for non economic loss, I should be permitted to consider comparable verdicts in other motor accident cases, relying on dicta of Kirby P in New South Wales Insurance Ministerial Corporation v Hay (1993) 18 MVR 375). It seems to me that this has been established in this Court by the decision of the Full Court in Hebditch v Sheppeard (12 July 1996, unreported, per Gallop, Higgins and Ryan JJ). I have taken into consideration the New South Wales decisions counsel has referred me to.

34. I award the sum of $192,400 for non economic loss. As I am satisfied that this is an accident to which the Motor Accidents Act 1988 applies, interest is not available on an award for non economic loss.

35. The plaintiff makes a claim for economic loss, which is to be determined in accordance with common law principles, save for the requirements of the Act in relation to discount rates. The plaintiff's claim for loss of income is particularised as an arithmetic claim based on the difference between the salary and entitlements the plaintiff was earning as an acting Senior Executive Service officer, and his actual earnings as a public servant at the Executive Officer level. Past income loss is claimed on the basis of his sick leave entitlements used up by reason of his injury ($15,746.67), together with the difference between what he would have continued to earn if he had been promoted to a Senior Executive Officer job when his acting arrangements came to an end, and his actual earnings. The evidence is that he continued to act in the Senior Executive Service until June 1997, and that in October 1997 he successfully applied for a position in another department at the Senior Officer level. The assumption for the purposes of the calculation of past economic loss is that, but for the accident, he would have obtained promotion to the Senior Executive Service.

36. The future economic loss claim is based on an ongoing loss of salary and entitlements at the differential between the Senior Executive Service and the Senior Officer level until the age of 55, and then the full loss of Senior Executive Service salary until 65, being normal retirement age. Again, this is based on the assumption that but for the accident the plaintiff would have held a position in the Senior Executive Service. It is also based on the assumption that the plaintiff will be forced to leave the workforce at age 55 due to the accident.

37. In assessing the plaintiff's claim for economic loss I am of course guided by the approach set out by the High Court in Malec v J.C. Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 642 where it is said that a court should approach past loss the basis of a determination as to whether it is more likely or not that an event would have occurred, and that in assessing future loss, the court must look at the probabilities of a range of events occurring. In determining the future claim, I am also to be guided by the approach the High Court adopted in Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1.

38. I am satisfied from all of the evidence that the plaintiff had been a successful public servant for many years before the accident. He achieved promotion into what are now referred to as the senior officer ranks of the public service at a relatively young age, and he had had the opportunity to act in the Senior Executive Service for some years before the accident. He had not, however, achieved substantive promotion to that grade. Mr Peter Harris, who had been a Deputy Secretary in the Department of Transport and Regional Services, gave evidence of the plaintiff's work performance, and spoke well of his skills and capacities. He said that promotion into the Senior Executive Service:

"is the jump that everyone needs to take, it's the hardest jump to make and usually to distinguish yourself from your colleagues, you need to have performed on one of these big ticket projects."

39. He said that the plaintiff had been performing well in just such a role until the accident, and that "prior to his accident Ivan was a pretty good chance" of achieving promotion into the Senior Executive Service, but that now his chances are reduced, being, "a lot less than 50/50".

40. There is no medical evidence to say that the plaintiff is not able to perform at work. The plaintiff's evidence is that he found, and still finds, aircraft travel difficult, and is restricted in walking, and can be discomforted in meetings. The position in which he was acting, and which was, in Mr Harris's view, providing him with a "pretty good chance" of achieving substantive promotion, was a job which required a lot of travel, and I accept that this was not appropriate following the injury. I am satisfied that the plaintiff has lost a real chance of promotion to the Senior Executive Service, but I am not satisfied, on the balance of probabilities, that but for the accident he would have achieved substantive promotion from October 1997. It seems to me, on all of the evidence, that the plaintiff's claim for economic loss must be based, apart from the discrete amount for loss of sick leave entitlements of $15,746.67, as a loss of a chance, albeit a good chance, for promotion, rather than a certain loss. It seems to me that the plaintiff certainly did lose the opportunity to continue to act in Senior Executive Service position, but I can not be satisfied on all of the evidence that it is more likely than not that he would certainly have achieved promotion, bearing in mind particularly Mr Harris's evidence that this is the most difficult promotion point to achieve, and the fact that he had had many years of acting without substantive promotion before the accident.

41. The plaintiff's claim to date of hearing was particularised to $77,914.76. I would discount this claim to $60,000 inclusive of interest to reflect the real loss of the opportunity to continue to act in a Senior Executive Service position from mid 1997, and the loss of the chance at promotion beyond that date.

42. In relation to future loss, I again assess the plaintiff's claim as a loss of a chance, rather than a certain loss, as I am not satisfied that, but for the accident, it is more likely than not that he would have achieved substantive promotion. I accept that the plaintiff has given honest evidence throughout these proceedings, and I note that it is his present view that he will not be able to work beyond the age of 55, but this view is not supported by any medical evidence, and I am not satisfied, on the balance of probabilities, that the plaintiff has, due to the amputation of his leg, been rendered incapable of continuing at his present level of responsibility in the Australian Public Service to normal retirement age.

43. I am satisfied, however, that the plaintiff has a substantially lower chance now of achieving promotion into the Senior Executive Service, and this must sound in an award of damages for future economic loss. The plaintiff's claim based on a definite loss the differential between Senior Executive Service salary and entitlements to age 65 was particularised at $206,624. The plaintiff further claimed that from age 55 he should be awarded the full loss of salary, but I am not satisfied that this part of the claim is made out. I would award the sum of $100,000 in respect of future economic loss, discounting the particularised claim on the basis that I am compensating, not a definite loss, but the loss of a chance, albeit on the evidence before me a strong chance.

44. Past out of pocket expenses were particularised at $7,436 only. Counsel for the plaintiff stated that their advice from the hospital authorities was that the prosthetic care that had been provided at the Canberra Hospital would not be subject to any claim. This is not normally the position adopted by public health authorities where an award of compensation is made, and I gave the plaintiff leave to clarify this matter. The plaintiff's solicitors received a letter from the Canberra Hospital dated 19 October 2001 which stated:

"This is to confirm the account of $21,285 is the total monies owing by Mr Hardham to The Canberra Hospital. If we are unable to recover the monies as a result of directions from the Supreme Court, Mr Hardham will not be pursued for the amount."

45. It seems to me that it is therefore quite appropriate for this amount to be awarded as part of the out of pocket expenses. I note the hospital's remarks about recovery, but it seems to me that this reflects the reality in this case that there is no certainty that the plaintiff will be able to fully recover any award of damages, given the status of the insurer. The Canberra Hospital seems to have taken the view that it will recover such funds as Mr Hardham is himself able to recover, and this seems to be an appropriate view.

46. I award $28,721 in respect of past out of pocket expenses.

47. There is a very substantial claim for future expenses related to the plaintiff's artificial leg. These have been calculated in final submissions by counsel for the plaintiff to be $129,480 for future prosthetics, $37,721 for future labour for adjustments to his prosthetics, $264,254 for future socks, sheaths and liners for his prosthetics, $53,706 for travel expenses to Sydney for prosthetic treatments, $57,287 for bi monthly visits to an amputee specialist, $5,979 for certain household and recreational equipment as set out in a report by an occupational therapist that was tendered in evidence, $4474 for additional expenditure on pants and shoes due to excessive wear and tear due to the use of the prosthetic leg, and $161,882 for home modification and maintenance. This amounts to a total future out of pocket claim of $720,783.

48. There is a great difficulty in a case such as this were there has been no participation in the trial by the defendant, in that this type of claim has not been able to be tested by cross examination or alternative expert reports. However, this was a choice made by the defendant, albeit caused by the collapse of an insurance company. The plaintiff's claim for future expenses is supported by medical evidence and other expert evidence.

49. The aspects of the plaintiffs claim for future out of pocket expenses that are referable to ongoing regular expenses amount to $531 per week. The present value of this expenditure over a period of 30 years, which counsel stated and I accept is the appropriate actuarial figure for the plaintiff's life, is when applying the appropriate rate of discount under the Motor Accidents Act 1988 of 5%, $436,279. It seems to me that, taking into account the usual discount for contingencies, I should award the sum of $370,837 in respect of future ongoing expenses.

50. This leaves the cost of home modifications. There is an expert report which satisfies me that the amount claimed, of $156,900 is appropriate for modifications to the plaintiff's home, which is presently over several levels, to make it safe and appropriate for a person with an artificial leg. I award the sum of $156,900 as claimed. This amounts to an award of $527,737 for all future expenses.

51. The plaintiff has made a claim for home care and assistance based on the principles of Griffiths v Kerkemeyer (1977) 193 CLR 161 on the basis of 19.5 hours of assistance weekly at a rate of $16 per hour. I accept that this is an appropriate rate. The requirement of 19.5 hours a week comes from the report of an occupational therapist, Ms Halcrow, which was in evidence. It is not, however, entirely consistent with the report of Dr Millons, who states that the plaintiff is independent in aspects of daily living, or the evidence of the plaintiff and his wife. Dr Adler, rehabilitation specialist, in his report of 26 August 2000, noted that the plaintiff, "tries to continue with the sharing of house chores, but vacuuming cannot be performed in one attempt as had been possible earlier, instead taking multiple sessions to complete". He cleans the toilet areas, but cannot wash the tiled floors which he used to do by hand as he is unable to crouch. He cleans the bath, hand basins and is involved in laundry tasks. He is also involved in shopping for groceries. Dr Adler also notes the ongoing involvement in the farm block. Dr Adler concluded that he required three hours per week of domestic assistance for household tasks, and one hour for gardening assistance. He concluded that this would increase in later years of his life.

52. I am not satisfied on all of the evidence that the estimate of domestic assistance of Ms Halcrow is made out, and I would prefer, on all of the evidence, the views of Dr Adler. I award past loss on the basis of 4 hours per week at $16, being $64 per week for 299 weeks, for an award of $19,136. Interest on this award amounts to $5,480 for a total award of $24,616.

53. Applying the same approach to future services, I award the sum of $64 per week for 30 years. This amounts to an award, applying the 5% rate of $52,584. While I would normally apply a 15% discount to this figure for contingencies, it seems to me that I need to balance against this the probability of an increase in need for assistance as the plaintiff ages, and will apply no discount to take into account the probable increase in later years.

54. This amounts to an overall award of $986,058 which I consider to be appropriate on all of the evidence and award, with costs.

I certify that the preceding fifty four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 16 November 2001

Counsel for the Plaintiff: Mr Wheelehan QC with Mr Pappas

Solicitor for the Plaintiff: Peter R. Glover

Counsel for the Defendant: No counsel present

Solicitor for the Defendant: Vandenberg Reid

Date of hearing: 8 & 9 October 2001

Date of judgment: 16 November 2001