Johnson v Inverell Shire Council [2002] ACTSC 18 (28 March 2002)

Last Updated: 12 April 2002

Keith Lloyd Johnson v Inverell Shire Council [2002] ACTSC 18 ( 28 March 2002)

CATCHWORDS

NEGLIGENCE - Highway authority - duty to warn motorist of unsafe road surface

DAMAGES - Personal Injury - ankle - no issue of principle

Motor Accidents Act 1988 (NSW)

Bitupave Ltd v Bollington (1998) 23 MVR 223

Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council [2001] HCA 29, (2001) 180 ALR 145

Griffiths v Kerkemeyer (1977) 193 CLR 161

Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49

Palmer v Roads and Traffic Authority [2001] NSWSC 846

Roads and Traffic Authority v Scroop (1998) 28 MVR 233

Webb v South Australia (1982) 43 ALR 465

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

No. SC 549 of 1998

Coram: Master T Connolly

Supreme Court of the ACT

Date: 28 March 2002

IN THE SUPREME COURT OF THE )

) No. SC 549 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: KEITH LLOYD JOHNSON

Plaintiff

AND: INVERELL SHIRE COUNCIL

Defendant

ORDER

Coram: Master T Connolly

Date: 28 March 2002

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment for the plaintiff in the sum of $84, 654.44

2. Defendant to pay the plaintiff's costs

1. This is a claim for damages for personal injuries arising from an accident which occurred on the Gwydir Highway some 15 kilometres east of Warialda in New South Wales on 23 April 1998 when the plaintiffs motorbike lost traction and control on a wet section of unmade road which was the subject of roadworks. The highway is otherwise a bitumen two lane road, and the council was in the process of upgrading this particular stretch of road. It had removed the old bitumen surface, and was in the process of preparing for laying a new surface, so that at the time of the accident the road surface was unsealed. The area had been effected by heavy rain at the time of the accident. The plaintiffs' case is that the defendant was negligent in failing to adequately warn of the danger the wet and slippery road presented to potential users, and particularly to potential users on a motorbike.

2. The plaintiff was born in December 1942, and has worked as a public servant for many years at both the Commonwealth and ACT level, including a period of service as Sergeant at Arms for the ACT Legislative Assembly. He retired from full time employment in that capacity in the mid 1990's, but has subsequently re entered the workforce both by way of part time employment at a shop in Canberra specialising in runners apparel, being a keen distance runner himself, and as a part time sessional attendant at Parliament House. In the accident he suffered a fracture of his left ankle and claims injury to his low back, and brings a claim in respect of an ongoing diminution of earning capacity.

3. The plaintiff had been a motorcycle rider for some 15 years prior to the accident, and he said that it had been his practice to go on extensive road trips with his brother and brother in law. They all had similar motor bikes, being large road touring bikes. The plaintiff's bike was a Honda Goldwing that he had acquired in 1991. He used it for commuting to work as well as road trips, and he says that he had done about 120,000 kilometres on that bike at the time of the accident.

4. When the matter first came on for hearing on 26 August 2000 I advised the parties that I had had professional dealings with Mr Johnson during my period of service as a Member of the ACT Legislative Assembly. One party indicated that they would invite me to disqualify myself on this basis, and I agreed to this course. Both parties subsequently agreed that no conflict arose. I am of this view, and with the agreement of both parties I continued to hear the matter.

The Accident

5. The accident occurred on 23 April 1998, and the plaintiff and his brother had been undertaking a motorcycle tour of north-eastern New South Wales. They had stayed the night at Inverell, and were heading west along the Gwydir Highway towards Warialda. They left about 9.15, and after about 40 minutes the plaintiff says that, as the lead bike, he noticed an ascent on a bitumen road, and then a section of unmade surface. The weather at the time was foggy and rainy, and it had been raining for some time. He was aware that it had been raining for most of the previous night.

6. Mr Johnson says that there had been " a number of signs indicating that roadwork was ahead, there was caution signs, there was a speed limit - I'm not to sure of the wording, slow down 60, roadwork or something like that. There was the little picture of men digging, men at work, that sort of thing. Yes, I don't remember any others."

7. Extensive evidence was lead as to the nature of the other signs, and I broadly accept that the signage was as indicated in a chart tendered in the defendant's case, and as shown in photographs tendered in the defendants case taken by an officer of the defendant after the accident. I am satisfied that this included a sign saying "slippery when wet" visible from the plaintiff's approach path. I accept that the plaintiff has no recall of this sign, and that a police officer can also not recall that sign being present.

8. He says that as he came over the hill he saw a stretch of unmade road in front of him for some distance, which he said was about a kilometre. He says that as he approached he noticed: "Well, it was wet because of the conditions on the day - the rainy conditions, it was wet, and it was slippery. Well, you know, I couldn't tell that until I got onto it, but it was slippery, but it was certainly wet."

9. The plaintiff was asked by his counsel whether he observed a sign saying "boggy when wet". He did not, and it is common ground that no such sign existed. He was asked what he would have done if such a sign existed, and he said that he would have stopped. It is the plaintiff's case that failure to erect a boggy when wet sign amounted to negligence.

10. He says that he slowed down as he approached the roadworks, and would have been doing "20 kilometres an hour, maybe a little bit more" when he got to the roadworks, and then slowed down again. He says that as he proceeded down the unmade portion of road it was firm but wet, but that as he continued it became "more boggy, more wet. The water seemed to be running down-down the hill and onto the flat, so there was much more water at the bottom of the hill than there was at the top."

11. He says that he was trying to negotiate the best path between potholes and wheel ruts, and noticed the bike start to sink in to the surface. He was in second gear doing he estimates between 10 and 15 kilometres an hour. He described the accident as follows:

"I was trying to negotiate potholes and the wheel ruts and trying to pick the best way through the- along the road, and the front wheel of the bike got into one of the wheel ruts. I- it was fairly deep and I tried to steer the bike up over the edge of the wheel rut and the back wheel has just broken away and spun the bike around."

At this point he lost control of the bike, and he said "the bike just speared off the road into the table drain. It was -just thick, thick black mud in the table drain, the bike just- just sank and- and fell on its side".

12. I am satisfied that the accident occurred in the circumstances described by the plaintiff, and that as the bike fell over onto its left side the plaintiff's foot was trapped under the bike, and he sustained the fractures. There was common ground as to the approximate point on the road where the accident occurred, and photographs were tendered taken some hours after the accident which gave an indication as to the state of the road. It is apparent from these photographs, in particular the two photographs forming exhibit A before me that there were extensive ruts and potholes on the road surface at the point where the plaintiff says he encountered the difficulties. The key issue in this case is whether breach of duty of care is established.

Liability

13. It was common ground between the parties that the law to be applied in this respect is the common law of negligence, and that following the decisions of the High Court in Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council [2001] HCA 29, (2001) 180 ALR 145 no distinction is to be drawn between misfeasance and nonfeasance on the part of a highway authority. Accordingly, liability of a highway authority is to be determined according to the test as laid down in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-8. The principles there stated by Mason J have been regularly applied in this type of case, and it is appropriate to restate that test:

"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer to this be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."

14. The first question under this test may easily be answered in the affirmative, as it has been long held that a road authority must foresee that their activities in constructing or varying conditions on a road may cause a hazard to road users. In Webb v South Australia (1982) 43 ALR 465 Mason Brennan and Deane JJ said at 467

"the application of a reasonable standard of care calls for the elimination of risk of injury to users of the highway presented by that artificial construction, the more so where elimination of the risk can be achieved without undue difficulty and expense. It is well established that it is the duty of highway authorities to keep the artificial work which they have created in such a state as to prevent its causing a danger to passengers on the highway which, but for such artificial construction, would not have existed, or at the least, of protecting the public against the danger."

15. I note also that the New South Wales Court of Appeal has acknowledged that

"Road users had neither the right nor the opportunity to exercise control over, or even to have knowledge of, what had been done on the road. In these circumstances, [the road authority] had a particular responsibility for their safety, involving a high standard of care."(per Fitzgerald AJA Roads and Traffic Authority v Scroop (1998) 28 MVR 233 at 238.

16. The plaintiff by his statement of claim alleges that the defendant was in breach of its duty of care to the plaintiff in several respects. There were allegations that the duty of care extended to ensuring that an alternative sealed section of roadway was in place where a carriageway was under repair, and considerable expert evidence was tendered as to the cost of building a duplicate roadway. I am satisfied from the evidence and report of Mr Fishburn that the cost of constructing an alternative sealed carriageway over the length of this unsealed section of roadworks would have been about $284,000. The proposed cost of the resurfacing work was $203,000. I am satisfied that this amounts to a doubling of the cost to road authorities for resurfacing work which would translate, if the duplication was to be extended over the whole of the proposed resurfacing works between Warialda and Delungra, being the next town, to about $9,000,000. Mr Schnerring, an expert in the plaintiffs case, disputed these costings, but acknowledged that the construction of such an alternative carriageway would impose an additional cost, which he agreed could be "perhaps less than double the cost of the road."

17. Applying the Wyong Shire Council case test I must consider whether there was a duty on the defendant to construct an alternative carriageway. I must consider the "expense, difficulty and inconvenience of taking alleviating action". I am not satisfied that a country road authority should be held negligent for failing to construct an alternative carriageway when roadworks are being undertaken. I do not consider that this is a reasonable duty to impose on a highway authority, and the evidence presented to me as to the cost of building a duplicate sealed section to a country road satisfies me that such a duty would be unreasonable. The plaintiff himself said that he had extensive experience in bike touring and "its almost inevitable in rural Australia to not come across roadworks somewhere". I note also that the plaintiff's brother, in cross-examination, stated that "Roadworks are a common feature of Australian country roads and you negotiate them regularly."

18. Another aspect of alleged negligence on the part of the defendant council went to the inadequacy of the signage on the approach to the accident. I find as a fact that the council did have in place and on display as shown in photographs being exhibits 5,6,7, 14 and 15 before me. The plaintiff gave evidence that he did observe certain signs, as referred to in paragraph 6 of these reasons, but he did not recall the roadsign showing a car with skidmarks which, it was common ground, is accepted as providing a warning of slippery conditions.

19. It is the plaintiff's case that the defendant should also have displayed a sign saying "boggy when wet". He said in his evidence that if this sign had been displayed he would have stopped, but he also acknowledged in cross examination that the first time he had considered this matter was in response to questions from his lawyers based on an experts report. I am not satisfied that this sign was appropriate in the circumstances. I am not satisfied as a matter of fact that the plaintiff sustained his injury because the road was "boggy". Rather, he sustained the accident when the bike lost control in slippery conditions. Moreover, I am not satisfied that the sign would have added anything to the already present signage. It is always possible to say that another sign should be added to existing warning signs- and it would also no doubt be possible to allege that a council was negligent in having so many warning signs that a motorist would be confused as to the nature of the hazard ahead .(cf Bitupave Ltd v Bollington (1998) 23 MVR 223 where signage was held to be misleading).

20. The obligation on the defendant was to provide a reasonable form of warning as to the nature of the road surface, and it seems to me that, on all of the evidence, the signage that was in place was generally adequate. Evidence was given as to the appropriate circumstances where, according to accepted guidelines, a boggy when wet sign would be appropriate, and I am not satisfied that the council was negligent in not placing such a sign for these roadworks.

21. Highway authority negligence cases will generally turn on their facts, and so it is with this case. An additional basis of negligence was pleaded that the council was negligent in not providing flagmen to warn of the danger ahead. Counsel for the defendant argued that such a system would be unreasonable, and I accept that, for most roadworks in most conditions, it would not be reasonable to insist that a council provide such warnings. The signage in place in this case would generally be adequate to warn a motorist, or a motorcyclist, of the general dangers presented by roadworks. The plaintiff and his brother both gave evidence acknowledging that they were, as experienced bike tourers, familiar with roadworks on rural roads and the conditions to be expected.

22. Evidence emerged on the last day of this hearing, however, which satisfies me that there had been a significant deterioration of conditions, and that something more than signage was appropriate for the morning of this accident.

23. Mr Morris, the maintenance manager for Inverell Shire, gave evidence that he was looking after this construction project. He is an experienced works manager, and gave his evidence in an impressive manner. I accept fully his evidence as to where the relevant signs were placed before and at the time of this accident, and I accept his evidence as to the appropriateness of that signage.

24. He said that on the morning of the accident he was called by the acting supervisor at the site, Mr Hughes who was concerned at the deteriorating nature of the roadworks surface because of the heavy rain. Mr Morris was at a meeting at this time, and when he got the message he left to come out to inspect the site, and importantly, says that he rang the local radio stations to put out a message, which he said was for "motorists to avoid the construction if possible." He said that this was about 10 am on the morning of the accident, and it was shortly after this that he got a call to inform him that the accident had occurred.

25. He acknowledged that at this time because of the heavy rain the workers on site were unable to continue working, and would have been available to act as flag men. The signage in place indicates that flagmen had been utilised from time to time. He was asked at page 275 of the transcript " Mr Morris, after the accident was a flagman put on duty at either end of this section of gravel" to which he answered "He was, yes."

26. I am satisfied that on the morning of this accident the extensive rain had rendered this section of roadworks particularly dangerous and hazardous. I am satisfied from all of the evidence that the road was quiet deeply rutted with tracks and potholes, and was very wet and slippery. I am satisfied that this caused the on site supervisor, Mr Hughes, to ring his superior, Mr Morris, to advise that the road would need to be inspected to see whether or not it should indeed be closed to traffic. I am satisfied that as a response to this call Mr Morris decided both to go out and inspect the road surface, and to authorise the placement of an advertisement over the local radio stations to warn motorists of the danger by advising them to avoid the construction if possible. This form of warning would have alerted motorists who were tuned to local radio of the particularly hazardous conditions, but it would not have alerted motorists who did not have the radio on, or motorcyclists.

27. I am satisfied that, given this combination of circumstances, it would have been reasonable for flagmen to have been placed at the construction site. This would have involved no additional cost, as the workers were on site but were in the caravans as the inclement weather made construction activity impossible. I note that this was done after the accident. I find that this would have been a reasonable response at a time when the radio warning had been given, and the senior officer was attending from the town to inspect the roadway to determine whether or not it should remain open. I make this finding in the knowledge that Mr Morris did inspect the road surface, and formed the view that closure was unnecessary. It seems to me that it does not follow from this that a greater degree of warning should not have been given.

28. Every highway case will turn on its facts. As Gaudron, McHugh and Gummow JJ said in Brodie's case:

"Not all failures to repair will create risks to the users of a road, or at least not risks with would, as a matter of the reasonably foreseeable, pose a risk of injury. Although it has been said many times that the digging of a hole in a roadway constitutes an actionable misfeasance, the size and location of such a hole may vary and must be considered when determining, on the facts of the particular case, whether it will reasonably foreseeably lead to injury or harm to a user of the road. Depending on the conditions of the road, a `hole' caused by removal of a portion of the road surface may not pose any foreseeable risk to cars; signs may provide adequate warning against whatever risks it poses to motorcyclists or cyclists. On the other hand, a trench in the roadway, whether arising from active digging or decay of the road or structures within it, will more readily give rise to a foreseeable risk of injury, particularly where it cannot easily be seen or avoided by a road user. The nature of the defect, and not the question of whether it arose by action of nonfeasance, should be significant." [2001] HCA 29; (2001) 180 ALR 145 at 192 para 161.

29. I am satisfied from the evidence of the officers of the defendant that the steps they took in relation to signage were generally adequate for normal conditions, however I am satisfied that on the morning of this accident weather conditions combined with the state of the roadworks to create a particularly hazardous road surface, such that the site supervisor felt the need to call in his superior to form a view as to whether the road should remain open, and the superior felt the need to issue a radio warning to motorists to avoid the area. Once this point had been reached, it seems to me that the defendant should have taken additional measures to ensure the safety of users of the road who may not have heard this warning. There were labourers present who could perform the function of flagmen. A road authority cannot be expected to take abnormal precautions, and I have dealt with the proposition that the defendant should have built a second road surface. There was also a pleading that the authority should have provided a "ferry service" for motorbikes over the unsealed section of the highway. No witness gave evidence that such a service had been provided by any road authority in Australia.

30. I am satisfied, however, that the provision of a flagman in the circumstances of this would have been an appropriate response by a prudent authority in the circumstances that prevailed on the morning of this accident. The test as restated by Gaudron, McHugh and Gummow JJ in Brodies case is:

"In the circumstances of a given case, it may be shown that it was reasonable for an authority to deal in a particulary priority with repairs in various locations. The resources available to a road authority, including the availability of materiel and skilled labour, may dictate the pace at which repairs may be made and affect the order of priority in which they are to be made. It may be reasonable in the circumstances not to perform repairs at a certain site until a certain date, or to perform them after more pressing dangers are first addressed. Even so, it may well be reasonable for the authority to exercise other powers including, for example, by erecting warning signs, by restricting road usage, or, in extreme cases, by closing the road in question."(at 192, para 162)

31. Counsel for the defendant argued in submissions that the provision of flagmen may not have prevented an accident, as a motorcyclist or motorist may well have decided to proceed through the roadway. So they might, but they would then have been made aware of the particular danger, and the authority would have exercised appropriate care so as to avoid liability. In all of the circumstances of this case I am satisfied that the defendant was in breach of its duty of care in not providing adequate warning, by means of flagmen, of the particular dangers of this roadway on this morning. It seems to me that particular 6(k) of the pleadings which alleges a breach of duty by "failing to discourage or prevent motorbike riders using the highway by appropriately positioning flagman or otherwise" has been made out, and accordingly I find in favour of the plaintiff on the question of liability.

32. I should add that after submissions in this matter the solicitor for the plaintiff brought to my attention, with the consent of the solicitor for the defendant, the decision of Wood J in the New South Wales Supreme Court in Palmer v Roads and Traffic Authority [2001] NSWSC 846 delivered on 20 December 2001. I have taken this into account, but with respect it seems to me that this decision does not add to the general principles set out above, and applies them to the particular facts of that case, as I have applied them to the facts in this case as I have found them to be.

Damages

33. This accident occurred in New South Wales, but I agree with the proposition put by counsel for the plaintiff that the assessment of damages is to proceed pursuant to common law rather than pursuant to the statutory regime of the Motor Accidents Act 1988 (NSW). Where damages are caused by the negligence of the defendant as road repairer, I am satisfied that the Act does not apply, as was held by the Court of Appeal in Bitupave Ltd v Bollington (1998) 28 MVR 223.

34. The plaintiff's claim for damages therefore falls to be determined in accordance with common law principles. The principle to be applied in determining compensation in personal injuries cases have been summarised by McHugh J in Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49 where His Honour said (at 54):

"When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, `in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation'."

35. The plaintiff was born in 1942, and had a long career in the public service, and had attained the position of Sergeant at Arms in the ACT Legislative Assembly. In January 1995 he was involved in a motor vehicle accident in South Australia. He commenced and settled proceedings following this accident, and the defendants tendered a document prepared by his then solicitors in which it was stated that the injuries sustained in this accident to his neck had impaired his work capacity, and accordingly he was likely to retire at 55. This would have been in 1997. It was also claimed in this letter that his wife had to assist him to do much of the heavy gardening and household work that, but for the 1995 accident, he would have performed himself.

36. The plaintiff did retire from the ACT Legislative Assembly, but in March 1996 commenced employment on a part time basis at The Runners Shop. He had been for many years a keen competitive distance runner. In 1997 he obtained part time employment as a Sessional Attendant with the Commonwealth Parliament.

37. The plaintiff sustained a fractured ankle in the accident, and it is common ground that he was transferred by ambulance to the Warialda Hospital where he was x-rayed. The displaced fracture was identified and realigned with a backslab, and he was then transferred to the Tamworth Base Hospital for surgery.

38. He came to surgery under general anaesthetics on the evening of the accident under Dr Pepper, who performed an open reduction and internal fixation of the left lateral maleolus, using a plate and five screws. The operation report indicates that this was a successful procedure. He remained an in-patient for three days following the accident, and was then discharged into the care of his wife, and returned with her to Canberra. His brother had ridden home to Canberra, and then came back with his wife to ride the plaintiff's bike back.

39. He came under the care of his general practitioner, Dr Sanderson. He was on crutches for some time, but was able to return to work in June 1998. He attempted to return to some running and developed pain and inflammation of the left fore foot in early September. He also complained of lumbar pain. He had some time off work during that month.

40. His duties as a Sessional Attendant at Parliament House involved considerable walking about the building delivering papers to Members and Senators Offices, and he says that this caused pain both to his foot and his lower back.

41. On 23 July 1999 he again came to surgery under Dr Roberts to remove the plate and screws. This has been a successful procedure, although he still complains of restriction of movement and discomfort. In a report of May 2000 his general practitioner said that because of this he had restricted his running from 50km per week to 20km per week.

42. He underwent a heart operation in March 2000, which it is common ground is unrelated to this accident, and was off work from the end of February 2000 to May 2000. His duties at Parliament House have now been varied, in that he has obtained a part-time position involving archiving of documents, which involves considerably less walking, and which seems to have flexible hours, in that he can increase his time on this task. He has in fact increased his hours and his earnings from Parliament House, and has reduced his hours and earnings at the Runners Shop. Overall his earnings have increased.

43. In respect of general damages, I assess the plaintiff on the basis of a fracture to the ankle requiring surgery and the insertion of a plate and screws, and further surgery to remove the plate and screws. I accept the plaintiff's medical evidence that this has resolved well, but that he continues to experience some discomfort and restriction of movement. I accept that he was a very enthusiastic and fit distance runner before this accident, and that he has had to reduce his running. I accept also that he has sustained a degree of soft tissue injury to his lumbar spine. This was not an issue in the 1995 accident. I accept Dr Braken's diagnosis of mild postural backache, and his conclusion that this is "aggravated early degenerative changes in his low back with were not symptomatic prior to the accident." Dr Kitchen, who reported for the defendant, accepted in his report of November 1999 that "there may have been some aggravation of the prior condition of the spine as a consequence of this accident.". I accept that the plaintiff has symptoms of lumbar pain which are discomforting from time to time.

44. In relation to general damages, taking into account all of the medical evidence and previous decisions relating to ankle and foot injuries as well as associated lumbar pain, it seems to me that a figure of $35,000 is appropriate, with two thirds of that, or $30,000 attributable to the past, generating interest of $8350, for a total award of $43,350.

45. Out of pocket expenses incurred by the plaintiff up to 26 November 2001 were agreed in the sum claimed of $4373.37, and I award this sum. A buffer was claimed for future out of pocket expenses, based on ongoing pain relief, and the possibility of future operative treatment. The only real issue in the medicine between the parties is the likelihood of the plaintiff developing arthritis in the ankle following the fracture and surgery. I accept that he does have an increased likelihood, which I have taken into account in assessing general damages, and which I must also take into account here. I should also be mindful of the extent of out of pocket expenses incurred since the accident. Taking all of this into account, I award $3000 as a buffer against future medical expenses.

46. There was agreement between the parties in relation to the wage loss involving time off from the Parliament House job. I award the agreed claimed sum of $15,831.71.

47. The plaintiff further claims an ongoing wage loss based on his reduced hours of work at the Runners Shop. I accept that he is now working fewer hours. The defendant, however, says that this should be seen simply as a re-arrangement of his two part-time jobs. No tax records were tendered, but it was common ground that he has been able to increase his hours and his earnings at Parliament House by taking up the archiving work. It seems to me that this additional work has offset the reduction of hours at the Runners Shop, and I note that, in his evidence, the owner of the Runners Shop said that he was able to offer the plaintiff additional work "if he wasn't involved in his- his real job." It does seem to me that this well describes the situation, and I am not satisfied that the claimed arithmetic loss based on reduced hours at the Runners Shop is made out, as I am satisfied that he has increased his hours, and his earnings, at Parliament House. I award the sum of $15,831.71 which generates interest of $3,099 for a total past loss award of $18,930.71.

48. The future wage loss claim is based on a buffer claim. I do not accept that this is made out in respect of the Runners Shop employment, and I note that it was common ground that his earnings have increased. Economic loss claims, of course, are based on capacity and not merely on earnings, and I must take into account that the plaintiff does have ongoing restrictions. He has well mitigated his loss by moving from the Sessional Attendant role, which involved a lot of walking, to the archiving role, but I accept that the extent of walking and carrying in the former role would create difficulties. It seems to me that it is appropriate to award some buffer for future economic loss. I should however also be mindful of the evidence that it had been claimed that the prior accident would bring the plaintiff to retirement at 55, and he has in fact left his former full time employment, and embarked on his subsequent activities. It seems to me, based on all of the evidence, that an award of $10,000 by way of a buffer for future economic loss is appropriate, and I so award.

49. A claim pursuant to the principles of Griffiths v Kerkemeyer was particularised on the basis of some $15,000 to the September 1999, and ongoing at $150 per week since. The defendant accepted that some award would be appropriate for the extensive care provided by the plaintiff's wife following his discharge, when his mobility was restricted, and again following the removal of the plates. He submitted, however, that no ongoing need was established given the evidence of the plaintiffs ongoing ability to run considerable distances (albeit reduced from his former ability), and the fact that such a claim had already been made in respect of the 1995 accident.

50. I am satisfied that an award of $5000, inclusive of interest, is appropriate for the care provided by the plaintiff's wife during his periods of immobility, and for the assistance his brother provided in retrieving the bike. I am not satisfied that any general ongoing need is established.

51. This amounts to an overall award of $84,654.44 which I consider to be appropriate in all of the circumstances and award, with costs.

I certify that the preceding fifty one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly

Associate:

Date: 28 March 2002

Counsel for the Plaintiff: Mr R. Mildren

Solicitor for the Plaintiff: Pamela Coward & Associates

Counsel for the Defendant: Mr R. Sheldon

Solicitor for the Defendant: Phillips Fox

Date of hearing: 21 August 2000, 26 February 2001, 26, 27 & 28 November 2001

Date of judgment: 28 March 2002