Bell v Australian Capital Territory [2003] ACTSC 55 (9 July 2003)

Last Updated: 14 July 2003

NICHOLAS JOHN BELL v AUSTRALIAN CAPITAL TERRITORY

[2003] ACTSC 55 (9 July 2003)

PERSONAL INJURY - negligence - duty of public authority to maintain road surface - motorcycle accident - tarred roadway with gravel debris.

PERSONAL INJURY - damages - no issue of principle.

Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54, 194 ALR 337

Garvan v ACT [2003] ACTCA 4 (27 February 2003)

Inverell Shire Council v Johnson [2002] ACTCA 11 (17 December 2002)

ACT v Badcock [2000] FCA 142; 169 ALR 585

Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

No. SC 30 of 2000

Judge: Higgins CJ

Supreme Court of the ACT

Date: 9 July 2003

IN THE SUPREME COURT OF THE )

) No. SC 30 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: NICHOLAS JOHN BELL

Plaintiff

AND: AUSTRALIAN CAPITAL TERRITORY

Defendant

ORDER

Judge: Higgins CJ

Date: 9 July 2003

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered against the defendant in the sum of $454,714.

1. The plaintiff was injured in a single vehicle accident on the Corin Dam Road, in the Australian Capital Territory, on 31 December 1998. He was the rider of a motor cycle on that road when he encountered gravel on a left hand bend.

2. It was the plaintiff's recollection that, observing the bend he was approaching, he dropped down a gear, slowing from about 65 kilometres per hour (kph) to 50-55 kph. As he banked into the bend he slowed further. He then saw gravel across the road. He braked slowing to 40-45 kph, and aimed the motorcycle to follow the tyre tracks in the gravel. The gravel blended in colour with the bitumen surface so that the plaintiff had only 20 m to observe the gravel and take the action he did. He struck the gravelled area, he believed, at 30-35 kph. The rear wheel commenced to slide but then, it seems gripped on the bitumen, flipping the plaintiff over the front of the motor cycle.

3. In the fall the plaintiff sustained, apart from lacerations and bruising, a serious multiple fracture to the right wrist.

4. He was hospitalised until 2 January 1999 and his right arm was immobilised in plaster for two months.

5. During that time he needed the assistance of his wife in washing and shaving. He is right handed.

6. There were complications. Pins had to be removed from the wrist area. A fragment of bone had floated away. There was muscle wasting, a grating noise, and a lack of strength and mobility in the right arm.

7. The injury was also very painful. There is arthritic change.

8. Dr Robert J Scott, occupational physician, considered in his report of 2 February 2000, that the residual disability could be up to 30% Whole Person Impairment (WPI).

9. At the time of the accident, the plaintiff was employed as a part time postal delivery officer with Australia Post, earning $450.00 per week. He was also a qualified motor mechanic. In Dr Scott's opinion these occupations would be precluded by reason of the injury.

10. Future treatment could fuse the wrist to reduce pain but would further reduce wrist mobility.

11. Dr Scott reviewed the plaintiff on 3 June 2002. The plaintiff was no better, though he had adapted to the disability. There were, however, postural changes leading to back, trunk and shoulder pains.

12. He was not fit for employment, though in his report of 4 June 2002 Dr Roberts did accept that the plaintiff's stated ambition to train as a teacher of motor mechanics "may ... be an option".

13. Unhappily, the plaintiff's personal life also suffered. He and his wife separated on 28 July 2001. He had difficulty with depression and alcohol consumption, which is hardly surprising, given his circumstances.

14. The plaintiff then tried Information Technology retraining, but the physical requirements related to constant keyboarding defeated him. This was a considerable disappointment to him, as he enjoyed the course. His participation ceased in March 2001.

15. His disabilities were not, it should be noted, confined to the wrist and arm. There was also injury to the spine, left hip, left elbow and left knee. The left knee and elbow have caused continuing, albeit periodic, pain. Dr John Sanderson, his General Practitioner, in his report of 4 June 2002 expressed concern about the plaintiff's depression and suicidal ideation. This is confirmed by a psychological report of Ms Georgia Tayler of 27 August 2002.

16. In July 2002, the plaintiff relocated to Toowoomba, Queensland. The warmer weather was, he found, better for his pain. He was able to reduce his intake of analgesics by 98%.

17. He commenced his Year 12 with a view to pursuing his ambition to qualify to teach motor mechanics. It may be added that the plaintiff is apprehensive that there may be keyboarding skills required in teaching, which would create a difficulty for him.

18. Currently, a full-time postal officer would net approximately $500 per week. A teacher would net approximately $450 per week.

19. So far as domestic assistance was concerned, the plaintiff estimated that his wife had spent four to five hours per day organising him, over the first three and a half months subsequent to his accident. Over the next three to four months this care reduced to one and a half to two hours daily. I think that this estimate probably includes some elements of rearrangement of domestic chores and normal incidents of domestic life. However, until the plaintiff became self sufficient, (after six to seven months), there was, I accept, a gradually decreasing need for assistance, starting at about three hours per day, relevantly reducing to one hour per day.

20. There are other expenses: for example, $34 per month for analgesics, and a wrist brace costing, including fitting, $150 per annum.

21. The plaintiff recognises that he may require a wrist fusion but is not keen on undergoing this surgery. That is, to my mind, an entirely reasonable attitude.

22. In cross-examination the plaintiff acknowledged that prior to the accident, he had experienced occasional pain in the right wrist area, provoked by striking objects directly. This kind of activity had occurred during the plaintiff's activities as a motor mechanic. However, he had been able to largely avoid this kind of activity, and, in any event, at the time of the accident had been in the process of winding down his motor vehicle mechanics business in favour of work as a postal officer.

23. The plaintiff acknowledged that, though the speed limit for the Corin Dam Road was 80 kph, it would have been unsafe to ride at that speed for much of it. There was, indeed, about 250 metres before the bend in question, a 45 kph advisory speed sign. The roadside was also heavily treed, causing shadows to be cast across the roadway.

24. There was some questioning of the plaintiff's estimates of his speed. Dr Sanderson had recorded being told the plaintiff was travelling at 70 kph when he skidded on thick gravel. However, that was, in my view, not a detailed analysis of speed alteration relative to the gravel.

25. I found the plaintiff to be an honest witness and I think his considered evidence is accurate, even if Dr Sanderson's note was an accurate record of what he was told.

26. The presence of the gravel on the road was reported to police, by the plaintiff's travelling companion, but not to the Road Transport Authority. The gravel was still there on 1 January 1999 when the photographs (Ex 2) were taken.

27. It was apparent that the gravel had been washed onto the bitumen surface from a side road that led to a then disused quarry. The photographs suggest that the gravel deposit had been subjected to vehicular traffic passing over it and partially clearing it, which created "wind rows" of gravel on either side of the furrows made by the wheel tracks of four wheeled vehicles.

28. There was, however, no evidence to pinpoint when it was that the gravel was first deposited there or whether it had been a continuing phenomenon. The evidence was not, however, entirely silent on the point.

29. There had been a report from Mr John Jamieson of Jamieson Foley, Consulting Forensic Engineers. He inspected the site of the accident on 1 August 2001. At that time there was some loose gravel on the bend but not in significant amounts.

30. It was his opinion that the "wind rows", being on a "U" bend signposted at 45 kph would pose a "significant hazard" to motorcycles. Whilst 45 kph was advised, Mr Jamieson was of the opinion that vehicles, including motor cycles, might be expected to negotiate the bend at about 60 kph. With the loose gravel in place, the "slide-off" speed for a motorcyclist, would be 54 kph.

31. That was, of course, considerably higher than the speed at which the plaintiff in fact negotiated this bend. Indeed it was Mr Jamieson's opinion, expressed in cross-examination, that for the plaintiff to have negotiated this bend at 54 kph or lower was "probably safe".

32. It will be apparent that, apart from confirming the source of the gravel and accurately describing the area, Mr Jamieson's report and evidence did not assist the plaintiff's case.

33. From his evidence it would be concluded that, even had it been aware of the gravel on the road surface, the Road Traffic Authority would have considered that signposting the bend at 45 kph would suffice, if heeded, to protect motorcyclists from a significant risk of harm.

34. Of course, the presence on the road of gravel, or some other substance such as loose branches from nearby trees, would pose an increased risk to motorcycle traffic compared with a clean dry bitumen surface.

35. It would seem, if Mr Jamieson's evidence alone was considered, that the gravel on the bend represented a foreseeable slipping hazard only to motorcyclists who chose to ignore the speed advisory sign and attempted to negotiate the bend at or above 55 kph.

36. Mr Geoffrey Young, a Ranger employed by the defendant, gave evidence. He deposed that the gravel had been washed onto the road, at the bend in question, periodically over the previous four to five months. He had seen "Road Maintenance Crews" vehicles about fortnightly, he thought. They would clear culverts and fill potholes and were equipped with brooms and shovels.

37. In cross-examination he agreed that the traffic usage of the road was only 30 vehicles per day on week days, though it would be, on average, 200 vehicles per day on weekends.

38. So far as inspections of the road were concerned, the defendant deposed: (Interrogatory 5.2) -

"The system involved responding to complaints received about the state of the road and an annual inspection to determine whether the road or any part of it should be the subject of works funding in budgets".

39. Interrogatory 5.4 was answered as follows, expanding on "the system".

"An employee of the defendant was responsible for the development of a roads maintenance and rehabilitation program for the subsequent financial year. This involved the inspection of all Territorial roads including Corin Road. The employee would also report on any traffic hazards observed and arrange rectification. The system also involved responding to complaints received by the defendant in relation to particular locations."

40. Interrogatories were filed in which the defendant denied that the relevant area had been "rotary broomed" at any time in the six months before the accident.

41. The defendant called Mr Mario Sallecchia, a Senior Engineer for nine years with ACT Roads, an agency of the defendant. It was his responsibility at the relevant time to inspect ACT roads, to plan for roadworks and assess the need for more urgent repairs.

42. He inspected the Corin Dam Road in March/April 1998 and did not consider that any works needed to be recommended. He stated that had he considered gravel to have constituted a hazard to road users, he would have reported the gravel for prompt remedial action.

43. Otherwise, the noting of the presence of gravel on the surface and the taking of any action to remove it would be "a matter of chance". His only knowledge of the hazard which caused the plaintiff's accident was after he became aware of the plaintiff's claim. There was no record, he said, of any public complaints relevant to the bend in question, since 1995 up until he became aware of the plaintiff's accident.

44. Regular sweeping of roads was not economical, he said, other than for urban roads.

45. At this point the plaintiff's case was not looking promising. The defendant had not conducted works which involved the depositing of gravel on the roadway. The plaintiff's own expert had denied that the gravel constituted a hazard to a motorcyclist heeding the advisory sign, though it was foreseeable that not all riders would do so.

46. Further, it could not reasonably be said that every road should be subject to more frequent inspection and assessment than that to which the defendant subjected Territory rural roads. The "system" was not open to reasonable criticism.

47. As well, the expert evidence had indicated that the gravel present on this road presented no apparent hazard to an approaching motorcyclist heeding the advisory speed sign. The only thing that could be said to favour the plaintiff's case was that, from Mr Young's evidence, it could be concluded that the gravel deposit, in much the same condition, had been present for some few months before the accident.

48. Despite these advantages, Mr Sallecchia, under cross-examination, agreed that the "wind rows" shown on the photographs would be regarded by him as an unacceptable hazard, which would have required rectification.

49. No doubt an even spread of gravel would be less hazardous to a motorcyclist than "wind rows" where, as happened here, a slide can be suddenly arrested by contact with the bitumen surface. Although "wind rows" would not be particularly hazardous for a four-wheeled vehicle, they would be for a two wheeled vehicle, and there was no doubt that a motor cycle was in contemplation when Mr Sallecchia gave the evidence he did.

WAS THE DEFENDANT NEGLIGENT?

50. Mr Lunney, for the plaintiff, submitted that the evidence disclosed that gravel had been deposited on the road over the previous four to five months. After some time it formed into the furrows observed in the photographs. Had it been observed, (and road crews did traverse the area fortnightly), it should, on Mr Sallecchia's evidence, have triggered a report which would lead to remedial steps being taken. Mr Jamieson's report indicated that it would not have been difficult to have averted continuing washdown of gravel from the side road, if it had been creating an intermittent hazard.

51. If gravel was left on the road, passing traffic would inevitably sweep it into the "wind rows" which caused the plaintiff's misfortune. Once "wind rows" formed, a motor cyclist was at high risk of being injured as this plaintiff was.

52. In reply, Mr Pilkinton, for the defendant, contended that, even if the defendant should have noticed and removed the gravel earlier, the effective cause of the accident was the plaintiff's reaction to the realisation that there was gravel on the road. He further contended that there was no evidence that the defendant did know, or should have known, that the gravel had been deposited on the road, nor that the system for keeping the road free from relevant defects was deficient.

53. The fact that the plaintiff was, in my view, in no way to blame for his misfortune does not mandate compensation from the defendant. I am, indeed, satisfied that the plaintiff acted reasonably in approaching the bend in question. But for his motorcycle commencing to slide in a "wind row" and then being suddenly arrested by passing through it onto the bitumen, he would, I am sure, have avoided falling. But that risk of falling was clearly inherent in the formation of the gravel on the road.

54. The issue is whether the defendant was negligent in not being aware of that formation of gravel and in not eliminating the hazard before the plaintiff chanced upon it.

55. I was referred both to Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512 and to Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54, 194 ALR 337. These authorities have affirmed the nature and scope of the duty of highway authorities and local health authorities towards members of the public.

56. The ACT Court of Appeal recently reviewed Brodie and its application in more recent cases before other Courts of Appeal in Garvan v ACT [2003] ACTCA 4 (27 February 2003).

57. In Graham Barclay (supra) Gleeson CJ warned against imposing unduly onerous duties upon local government authorities, particularly where the claim is that the local authority, could or should have done more to avoid the source of injury which has manifested itself.

58. The reason for that caution was expressed by his Honour in [6] of Graham Barclay:

"Citizens blame governments for many kinds of misfortune. When they do so, the kind of responsibility they attribute, expressly or by implication, may be different in quality from the kind of responsibility attributed to a citizen who is said to be under a legal liability to pay damages in compensation for injury. Subject to any insurance arrangements that may apply, people who sue governments are seeking compensation from public funds. They are claiming against a body politic or other entity whose primary responsibilities are to the public. And, in the case of an action in negligence against a government of the Commonwealth or a State or Territory, they are inviting the judicial arm of government to pass judgment upon the reasonableness of the conduct of the legislative or executive arms of government; conduct that may involve action or inaction on political grounds. Decisions as to raising revenue, and setting priorities in the allocation of public funds between competing claims on scarce resources, are essentially political. So are decisions about the extent of government regulation of private and commercial behaviour that is proper. At the centre of the law of negligence is the concept of reasonableness. When courts are invited to pass judgment on the reasonableness of governmental action or inaction, they may be confronted by issues that are inappropriate for judicial resolution, and that, in a representative democracy, are ordinarily decided through the political process. Especially is this so when criticism is addressed to legislative action or inaction. Many citizens may believe that, in various matters, there should be more extensive government regulation. Others may be of a different view, for any one of a number of reasons, perhaps including cost. Courts have long recognised the inappropriateness of judicial resolution of complaints about the reasonableness of governmental conduct where such complaints are political in nature."

59. Thus, it seems to me, it would be inappropriate to impose on the Territory a duty to inspect roads more frequently than it does, or to alter its policy concerning the prioritisation of remedial roadworks.

60. Reference may also be made to the further comments made by his Honour at [7] (supra):

"In Brodie v Singleton Shire Council, I took the view that the non-feasance rule which previously applied to highway authorities was an aspect of a wider problem concerning the manner in which the law should relate the public responsibilities of persons or bodies invested by statute with a power to manage public facilities, including the responsibility to apply public funds for that purpose, and the rights of citizens who may be affected by the manner in which those responsibilities are exercised. In that case, three members of the majority expressly accepted that it may be proper and necessary for a court to decide whether the priorities of a local council in dealing with road repairs in various locations were reasonable. The decision in the case required that view. Even so, the scope for judicial examination of the reasonableness of governmental spending priorities was not held to be, and cannot be, at large. Raising and spending money for road repairs involves setting priorities, not only between parts of the road system, but also between all the claims upon an authority's resources, and between the interests of taxpayers and those of road users. My view remains that setting priorities by government for the raising of revenue and the allocation of resources is essentially a political matter, and that, if the reasonableness of such priorities is a justiciable issue, that can be so only within limits. The way in which the case against the state and the council is put in the present appeals squarely raises the wider problem mentioned above."

61. However, as his Honour recognised, there may be situations where, an obvious hazard having come to the notice of a local authority, it would be negligent to allow it to remain without prompt remedy.

62. An obvious example would be a spillage of oil on a roadway consequent upon an accident at which Territory officers were present or had attended.

63. Garvan, and the cases referred to in it, are examples of the application of that principle.

64. Many of those cases (as in Brodie) turn upon whether a conceded hazard was such as to constitute an unreasonable risk to the safety of the person or persons who may be expected to encounter it.

65. As the Court of Appeal (Higgins CJ, Crispin P and Gray J) observed in Garvan at [19], that decision and the statements of principle in it are directed to two issues:

"First, whether the want of perfection in the walking surface is such as to pose a hazard to a pedestrian exercising reasonable care. Second, whether, if it does, the relevant public authority has in fact sufficient knowledge of and notice of the hazard in time to remove it before a person suffers injury."

66. But for the evidence of Mr Sallecchia, I would have concluded that the deposit and the re-arrangement of gravel on the road would not have been an apparent hazard to persons riding reasonably and in accordance with the advisory speed sign. Whether it would be foreseeable as a hazard to persons exceeding the advisory speed which the Territory had a duty to remedy would depend on a factual finding that road users were known (or should have been known) not infrequently to ignore the warning signs and, even then, whether there were any other means reasonably open to protect such persons from harm. I express no opinion on that point. The case for such a plaintiff would be a difficult one.

67. That was the point upon which Garvan turned. Once it was apparent that the hazard was likely to have been created with the concurrence, or at least the knowledge, of relevant Territory officers, the Territory had a duty either not to permit the creation of the hazard or, at least, promptly to eliminate it.

68. The second issue was also that upon which Inverell Shire Council v Johnson [2002] ACTCA 11 (17 December 2002) turned. The hazard had been created by and was under the control of the Council. The question was whether reasonable steps to protect road users, in that case, coincidentally, motor cyclists, from the risk of injury that had been so created.

69. I have already accepted that "the system" adopted by the Territory for the inspection and repair of rural roads was reasonable. Unlike the case of ACT v Badcock [2000] FCA 142; 169 ALR 585, there was no evidence of any complaints to Territory officers which should have led to timely attention being given to the hazard which resulted in injury.

70. The hazard in question here is of a kind that Kirby J referred to in Brodie at [245].

"A body such as the Council has little effective control over the use by pedestrians of a footpath and its surrounds. Such structures do not have an infinite lifespan. They are subject to deterioration by reason of the weather, or ordinary traffic use, of subterranean changes, of public utilities that lawfully disturb them and other persons who unlawfully do so. The rate of deterioration will vary. Necessarily it is unpredictable and largely out of the control of a body such as the respondent."

71. There are but two pieces of evidence which, in combination, suggest that remedial action could and should have been taken earlier than was the case in the present matter.

72. First is the evidence of Mr Geoffrey Young. He had noticed that gravel had washed across the main road from the side of the road. It had been there for four to five months. He had also seen road maintenance teams, which he recognised as those engaged by the Territory, about fortnightly at one point or other on the Corin Dam Road. They had brooms and shovels and it would, of course, have been simple to have swept the gravel deposits off the bitumen surface. At the very least, they could have reported the excessive gravel and sought instructions to remove it. However, his evidence did not enable a conclusion that the gravel deposit was a hazard demanding prompt attention.

73. Second, is the evidence of Mr Sallecchia. In contrast to Mr Jamieson, he recognised the gravel deposit, formed as it was by passing traffic into "wind rows", as a hazard warranting prompt remedial action. I do not regard Mr Jamieson as contradicting Mr Sallecchia's view. He did not, I think, turn his mind to the hazard presented to a motor cyclist in particular, by the formation of the gravel.

74. The necessary link is, of course, whether, during the few months before the plaintiff's accident, the Territory (through the road repair crews to which Mr Young referred), should have noted the hazard and formed the view of it that Mr Sallecchia did when he saw the photographs.

75. The hazard was not merely the deposit of gravel on the bend, but also its re-arrangement into "wind rows". That was, in my view, inevitable once the gravel was left there for traffic to pass over, even given the light traffic load that the road had to bear. The hazard and, indeed, its formation would have inevitably been contributed to by the "U" bend the road there formed. It could only have been a week or thereabouts before the furrows seen on the photographs would have appeared.

76. Given that road crews would be well experienced in remedying hazardous road conditions, it seems to me that had any road crew passed along the area of the road where the accident happened, they should have noted the hazard and, at least, reported it to their supervisor. In truth, given the ease with which it could be removed, one would expect it to be immediately swept away.

77. It seems to me most unlikely, given the apparently frequent attention to which this road (no doubt amongst others) was subjected, that the presence, over several months before the accident, of this particular hazard would have gone unnoticed. Rather, it seems to me, the road crews were either inadequately instructed, or, more likely, failed to look out for hazards other than those they were specifically instructed to deal with.

78. In my view, therefore, particular 3(b) of negligence is made out, that is:

"Failing to remove the gravel when it knew or ought to have known that its existence on the road would create a danger to road users, particularly motor cyclists."

79. There will in consequence be a verdict for the plaintiff.

DAMAGES

80. I have already noted the serious injuries and disabilities suffered by the plaintiff. It seems to me that an award of $90,000 is appropriate, particularly having regard to the unchallenged assessment that the plaintiff has suffered a 30% whole person impairment.

81. Albeit that the injury has left ongoing disabilities, the prospect of future further pain relief and the plaintiff's adjustment to it leads me to conclude that $60,000 of that should be attributed to the past. That generates an award of interest in the sum of $5,247.

PAST LOST EARNINGS

82. At the date of accident, the plaintiff was working part-time. His net pay averaged $407.01 per week. The evidence discloses that from 15 March 1999, the plaintiff would have been full-time earning $574.10 per week net. In addition, I am satisfied that, although his stand alone business as a motor mechanic had not been successful, the plaintiff could and would have supplemented his pay as a postal officer by doing casual mechanical work for friends and acquaintances. I consider that he would have earned, net, an average of $180.00 per week from that source.

83. A comparable employee earned $711.58 per week in the 1999-2000 tax year and $589.89 net per week in the 2000-2001 tax year. That is but an indication. It is not capable of direct mathematical comparison.

84. There must, in the period of more than four years since the accident, have been some movement in average earnings but, in the absence of precise evidence of the magnitude of such movements, I estimate the average weekly loss, allowing for all the above factors at $850.00 per week during the period of total incapacity for work. That is 227 weeks, a net loss of $192,950. Further, that loss generates interest on the earnings forgone at an average of five per cent (10% ÷ 2), a total of $9,645.00 in round figures.

FUTURE LOST EARNINGS

85. There is likely to be some improvement in the plaintiff's employment situation. I consider that the plaintiff is likely to re-train as a teacher. There will be a negative differential, at least for some years, in pay compared with the income he would have had as a Postal Officer. The evidence suggests a loss of some $50 per week not, at least for some years.. That latter figure does not include the lost opportunity for casual earnings. I would estimate that loss at $180 per week. I would estimate that, after about five years, the plaintiff's earnings as a teacher will have caught up with those of a Postal Officer. The present value of these lost earnings assuming retirement at 65, on that basis, is $163,890. I discount that figure for the normal vicissitudes of life by 15%, leaving, in round figures, $129,000.

86. A claim was advanced for voluntary services as per the rule in Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 and Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161. I have indicated that this should be discounted but it is a valid claim to the extent of that discounted finding. The agreed rate is $20 per hour. I would allow $9,480. That loss generates interest of $312.

87. For past medical and other out of pocket expenses I award the agreed sum of $5,500. There is no claim for interest thereon.

88. For future medical treatment, including the likelihood of a right wrist fusion I award, allowing for vicissitudes, $12,580.

89. The amounts abovementioned total:

General damages $90,000

Interest on past loss $5,247

Past economic loss $192,950

Interest on past economic loss $9,645

Future economic loss $129,000

Griffiths v Kerkemeyer $9,480

Interest thereon $312

Past out of pocket expenses $5,500

Future medical and out of pocket expenses $12,580

_______

Total $454,714

90. The total is $454,714. I consider it appropriate to direct the entry of judgment against the defendant in that sum.

91. I will hear the parties as to costs.

I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 9 July 2003

Counsel for the plaintiff: Mr Lunney

Solicitor for the plaintiff: Pamela Coward & Associates

Counsel for the defendant: Mr s Pilkinton

Solicitor for the defendant: ACT Government Solicitor

Date of hearing: 31 March 2003

Date of judgment: 9 July 2003