Hall v Stove & Robb [2007] ACTSC 75 (21 September 2007)

Last Updated: 30 September 2008

MICHAEL SHEANE HALL v JEFFREY JOHN STOVE & LLEWELLYN ROBB
[2007] ACTSC 75 (21 September 2007)

NEGLIGENCE – personal injuries – two accidents – liability for second accident in issue – long truck cutting into adjacent lane on roundabout – whether driver negligent – whether contributory negligence – assessment of damages when earning capacity not fully utilised prior to accidents

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

No. SC 340 of 2003

Judge: Crispin J
Supreme Court of the ACT
Date: 21 September 2007

IN THE SUPREME COURT OF THE )
) No. SC 340 of 2003
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MICHEAL SHEANE HALL

Plaintiff

AND: JEFFREY JOHN STOVE

First Defendant

AND: LLEWELLYN ROBB

Second Defendant

ORDER

Judge: Crispin J
Date: 21 September 2007
Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff against the first defendant in the sum of $600,534.
2. Judgment be entered for the plaintiff against the second defendant in the sum of $154,160.

1. The plaintiff claims damages for personal injuries sustained in two motor vehicle accidents.
2. The first of these accidents occurred on 5 April 2000 when a tree fell on the bonnet of a car in which the plaintiff was a passenger in Cape Street, Dickson in the Australian Capital Territory. The tree had been struck by a truck which the first defendant had driven, in reverse, from an adjacent car park. Liability has been admitted and I am required only to assess damages in respect of the injuries caused by this accident.
3. The second accident occurred on 20 July 2001 when a car, being driven by the plaintiff in a westerly direction through a roundabout on Fairburn Avenue, Campbell in the Australian Capital Territory, collided with a truck being driven by the second defendant in the adjacent lane which allegedly veered into his lane. Liability is disputed and contributory negligence has been alleged.
4. I will deal with the issues of liability raised in respect of the second accident before turning to the issues of damages raised in respect of both accidents.
5. The plaintiff gave evidence that he had been travelling behind the truck on Fairburn Avenue but that, as it entered the roundabout, it slowed down and moved into the left hand lane. The plaintiff then moved into the right hand lane and continued to drive forward through the roundabout. He explained that, as he did so, the truck came across into his lane, whereupon its rear wheels came into collision with the front left hand guard of his car. The car was “bounced through the air” and on to the edge of the roundabout.
6. In cross-examination he offered the following explanation:

I saw the vehicle coming out of the corner of my eye, I braked heavily, and the truck had gone forward because obviously he was either in a hurry and wanted to get through that roundabout, and he came straight across and hit me. But if you estimate that I braked heavily, and that’s exactly what happened, then he’s gone forward. I had no other choice than to hit him in the rear. Otherwise, it would have been further up, ands it would have ripped out the entire of my car, sir, the entire left-hand side.

7. He rejected a suggestion that there had been no actual lines on the roadway defining the lanes in the roundabout. He denied that there had been sufficient room to allow him to pass between the truck and the side of the roundabout even after the truck had veered into his lane. In response to the suggestion that he could have stopped and avoided the collision he said “I tried to, sir. That’s why I braked so heavily”. In response to a suggestion that he could have avoided the collision if he had been driving more slowly, he insisted that he had been driving at a responsible speed. He also rejected a suggestion that he had known that a truck of “that length” might drift slightly towards the right as it entered the roundabout.
8. The defendant gave evidence that he had been driving a large bogey drive type truck that was approximately 24 to 25 metres long. He said that the road divided into two lanes at a point about 30 to 40 metres prior to the roundabout and that he had kept to the left had side of the roadway as he approached and drove into the roundabout. When he was about halfway through the roundabout he heard a horn sound and looked into his rear vision mirror. He then saw the plaintiff’s car strike the rear right hand wheel of the truck. He said that there had been no lane markings on the roadway in the roundabout, though he did not dispute the fact that there were separate lanes. He claimed that he had not at any time steered the truck to the right and said that at the time of the impact the rear wheel with which the plaintiff’s car collided was approximately in the centre of the roadway.
9. In cross-examination he accepted that he been interviewed by police later that afternoon and that he had given an account of the incident that included that statement:

...truck proceeding ... uphill on Foveaux Rd – entered roundabout into left lane, turned to go through roundabout, long vehicle, cut slightly into right hand lane.

10. Whilst he seemed reluctant to again embrace even this limited admission, he ultimately agreed that he had cut slightly into the right hand lane and that he had not looked in the rear vision mirror prior to doing so. Indeed, he had not known that the plaintiff’s car had been present in the right hand lane until he heard the horn sound. He protested that one did not look at the rear vision mirror all the time whilst driving through a roundabout and claimed that the truck cut slightly into the adjoining lane “automatically” by reason of its length. He appeared to think that this contention provided an adequate answer to any suggestion that he had acted negligently.
11. Mr Ryan, who appeared for both defendants, asked rhetorically, what else could he have done? This question and the detailed argument which Mr Ryan advanced in support of the underlying contention appeared to be predicated upon a number of assumptions; namely, that the defendant could not have kept the truck within the left hand lane, that there had been only “slight”, and presumably therefore essentially insignificant, encroachment into the other lane, and that it had been unnecessary for him to look in his rear vision mirror to ensure that people driving or riding in that lane would not be endangered. I do not accept any of these assumptions.
12. The defendant did not assert that he could not have driven the truck through the roundabout without encroaching into the other lane and no expert evidence to that effect was adduced on his behalf. He did claim that the length of the truck was “pertinent” and, as I have mentioned, suggested that the encroachment occurred automatically. On the other hand, Mr McIlwaine SC, who appeared for the plaintiff with Mr Davidson, submitted that there was no reason to suppose that the rear wheels would not have followed the front wheels and that the defendant had obviously steered the truck into the other lane.
13. I accept that it may be sometimes impossible to drive a long truck around a very tight curve without part of the body impinging onto an area adjacent to the lane. However, that will be determined by the factors governing the geometry of the manoeuvre: the length of the truck, the width of the lane and the radius of the curve. In the present case, there was evidence of the length of the truck but not of the other two factors. Furthermore, it is the middle portion of the truck that one might reasonably have expected to move outside of the confines of the lane if the encroachment had genuinely been attributable to such factors. I do not accept that the encroachment was unavoidable but, even if it had been, that would not have absolved the second defendant from the responsibility to ensure that he did not unnecessarily endanger other road users. It was not suggested that he could not have braked to let any traffic in the adjacent lane pass before proceeding forward.
14. It is true, of course, that the plaintiff bears the onus of proving that the defendant acted negligently but there is obviously at least a strong prima facie case when the evidence reveals that the defendant has permitted a truck to cut into the plaintiff’s lane without prior notice and without looking in the rear vision mirror to ensure that it was safe to do so. Any real encroachment by a truck of this size into an adjacent lane would obviously create some risk to injury to people travelling beside the truck in that lane. It cannot be assumed that every driver is capable of instantly reacting to such an incursion by either stopping in time to avoid a collision or effectively sharing his or her lane by maintaining a course between the side of the truck and the kerb on the other side. The defendant was not asked to offer a more precise description of the truck’s incursion into the plaintiff’s lane than that provided by the word “slight” but I do not accept that the incursion was insignificant.
15. I had the opportunity of assessing the credibility of the plaintiff and the second defendant in the witness box and generally preferred the account of this accident given by the plaintiff.
16. The plaintiff presented as a somewhat emotional man who clearly nurtured a sense of grievance surrounding the impact of his continuing disabilities and about various aspects of his contact with medical practitioners and lawyers that he clearly felt had been unsatisfactory. He gave evidence in an apparently forthright manner and at times provided emphatic, even voluble, answers to questions. He was not a precise historian but I formed the distinct impression that he was generally doing his best to tell the truth.
17. He readily conceded having taken a hammer to the office of his former solicitor, Mr Butler, and having proceeded to smash a window. He also conceded that he had been involved in a violent struggle with another former solicitor, Mr Robb, though, despite the subsequent finding that he had been guilty of assault, he maintained that Mr Robb had been the aggressor. The only suggested relevance concerning the latter incident was that the plaintiff had allegedly suffered some injuries in the struggle and, as a consequence, some temporary exacerbation of the pain in his knee. Nonetheless, it was evident, not only from these incidents but also from his demeanour in the witness box, that the plaintiff had a potentially volatile temperament. Indeed, the nature and cause of his apparent emotional problems emerged as significant issues in the competing submissions concerning the assessment of damages.
18. I also formed the impression that his strong sense of grievance had not only precipitated incidents of the nature mentioned in the previous paragraph but that, even in retrospect, it had left him with the impression that his conduct had been substantially justified. It was obviously necessary for me to take into account the possibility that his recollection of the second accident may have been influenced by a similar process of subconscious reconstruction in which he had come to see his conduct as blameless. Nonetheless, despite the caution so engendered, I am satisfied that, whilst his evidence may have been attended by some degree of hyperbole, his description of the manner in which the accident occurred was essentially accurate.
19. In contrast, the account given by the second defendant was clearly tinged by defensiveness and I found it relatively unconvincing. It should also be noted that whilst the plaintiff had obviously been well aware of the position of the truck as it entered and drove through the roundabout, the second defendant had been unaware of the plaintiff’s vehicle until he heard the sound of the horn. His evidence as to the position of his wheels at the time of the impact was therefore based only upon what he claimed to have seen in his rear vision mirror. I do not accept his evidence that there was only a slight incursion into the plaintiff’s lane or the implicit suggestion that this did not extend to the movement of the rear wheels into that lane.
20. Furthermore, even if I had been satisfied that the truck could not have been driven through the roundabout without encroaching into the other lane, that fact could not have absolved the defendant from the obligation to look in his rear vision mirror to ensure that the lane did not contain any other vehicle whose occupants might be endangered by the encroachment. If the defendant had done so, he would presumably have seen the plaintiff’s vehicle and, since he was travelling slowly, there is no reason to suppose that he could not have stopped or slowed down to permit it to pass before any portion of his truck entered the plaintiff’s lane.
21. I find that the second defendant breached the duty of care that he had owed to the plaintiff by permitting his truck to cut into the adjoining lane without warning and without looking in his rear vision mirror to ascertain that there was no other vehicle in that lane whose occupants might be endangered by the manoeuvre.
22. In the alternative, it was submitted that I should find that the plaintiff was guilty of substantial contributory negligence. I do not accept this submission. The plaintiff was apparently driving wholly within his lane and at a speed substantially below the speed limit when the truck, which he thought had been moved to the left to enable him to pass, moved partially into his lane. He responded by sounding his horn and braking heavily but apparently could not avoid the collision.
23. Mr Ryan submitted, in essence, that he had been negligent in using the right lane of the roundabout when he should have anticipated that the defendant would move partially into that lane without warning. I accept that the size of a truck and the nature of an approaching bend should sometimes alert other drivers to the risk of such an occurrence but, in the present case, the evidence did not establish that the presence of the defendant’s truck in the roundabout had created such an obvious danger. There have also been well-publicised accidents apparently attributable to trucks being driven at excessive speed in order to meet deadlines, drivers falling asleep due to long periods at the wheel or even the use of amphetamines or other drugs to help them stay awake. However, whilst it is easy to be prudent with hindsight, there is no basis for treating truck drivers as ferae naturae and imposing on other road users a general duty to shun adjacent lanes in roundabouts due to fear that they may veer into their path or commit other dangerous acts without warning.
24. The plaintiff said that the truck had moved over to the left lane and had been travelling very slowly. In these circumstances, I think he was entitled to use the right hand lane. Whilst he intended to overtake the truck in doing so, he said that he had been travelling at a reasonable speed and this assertion was not challenged in cross-examination. As previously mentioned, he also said that when the truck veered into his lane, he braked heavily and sounded the horn but could not avoid the collision. I accept the plaintiff’s evidence to this effect and can see no basis for finding he was guilty of contributory negligence.
25. Whilst both defendants were represented by the same counsel, it is obviously necessary for there to be a separate assessment of damages in respect of the injuries and disabilities attributable to each of the two accidents to which the plaintiff’s claim relates.
26. The plaintiff was born on 5 May 1961. He left school in 1976 after completing Year 10 and obtaining a New South Wales School Certificate. He then had a series of jobs, working as a general hand, trainee machine operator, leading hand, a trainee crane operator and a steel fixer.
27. His brother was killed in a tragic accident in August 1981. Whilst the plaintiff was one of eleven children, he had been particularly close to this brother and found his death devastating. He said that he was so confused and distraught that he was unable to cope and needed to travel. His account of his peregrinations and the various jobs he obtained during the ensuing years was somewhat disjointed. He did recall many of the positions he had held at various times but seemed unable to provide a comprehensive and sequential account of his working life prior to the first accident. He did recall going to Maroochydore in Queensland after his brother’s death and obtaining a job with a concreting company as a steel fixer and leading hand. He held that job for about six months but then returned to Sydney and began to hitchhike around Australia. He seems to have generally managed well in the jobs that he subsequently held in various places.
28. For some time in the late 1980s he apparently worked in a wrecking yard in Queanbeyan that had been owned by members of his family. Mr Death, who presently owns the wrecking yard, gave evidence that he had been employed in the business when he came to know the plaintiff in 1987 or 1988. The plaintiff had taken him under his wing and showed him how the yard ran. He had observed that the plaintiff was an able bodied person who could do literally anything that was required in the yards. When asked about his personality he replied “Very happy, very easy to get along with, give you a hand at the drop of a hat, yes, very good bloke”.
29. The plaintiff also remembered working at a caravan park in Albany in Western Australia for about three months and later for a farmer in Rocky Gully in Western Australia for a further period of about three to four months. He then went to Perth. He worked for a scrap metal merchant for about six months before obtaining a job as the manager of “All Holden Motors”, a firm engaged in motor wrecking and the supply of parts for Holden motor vehicles. He held that job for a period that he thought had been about two years, earning between $800 and $1,200 per week depending on bonuses, and left it only after the breakdown of a domestic relationship.
30. Mr Ostell, who was the proprietor of that business, confirmed that he had employed the plaintiff about 13 or 14 years ago as his manager and “do everything person”. He explained that the plaintiff had run everything from the accounts, his staff, to buying cars and doing the licensing. Mr Ostell had not run the business on a “hands on” basis but had left it all up to the plaintiff and he had run it very successfully for two or three years. The plaintiff had been very well physically and he had done some remarkable things like professionally “wrecking” three cars in a day.
31. Mr Ostell said that he still owned the business and that if the plaintiff had been fit and able to resume his earlier duties he would have had him back. He explained that, in the current employment market in Perth, he would have paid him about $1,000 to $1,200 per week. [I should mention that this evidence as to potential earnings was received subject to an objection based upon the fact that the rates mentioned exceeded those claimed in the particulars. I ultimately decided to admit the evidence but noted that there had been no application to amend the particulars and that the plaintiff remained bound by them.] When asked how the plaintiff had interacted with other people, Mr Ostell said:

Yes, that was one of Michael’s big benefits. He was so happy and active and willing to help people. He really grew my business. Really, without him I wouldn’t be where I am today. So, yes, a great personality. He was always happy when he worked here. He loved it...

32. The plaintiff returned to Canberra in 1993 or 1994 but then obtained a job with “Snowy Mountain Skis” as a ski technician. The work was seasonal but available for about seven months of each year. He retained that job throughout the 1993 season but towards the end of the following season he injured his hand and was unable to continue.
33. He again returned to Canberra but developed pneumonia and a lung infection that persisted for about eleven months. Despite this illness, he commenced a bar training course which he completed in October 1995. The course required him to obtain practical experience working in the hospitality industry and he obtained work at two licensed clubs for periods of three months each.
34. While still working for those clubs he was involved in a minor car accident and, as a consequence, suffered bruising to his elbow and chest. He attended a medical centre but did not have any time off work and experienced no difficulty in performing his duties.
35. He had previously been interested in music and played the drums and guitar. He had also begun to write music and had intended to make an album. In early 1999 he was introduced to Mr Mick Pessey, who was a friend of a friend, and he offered him a casual job as a “roadie” in a firm then trading under the name “Multi Incorporated Businesses” and later under the name “Corporate Crewing”. That role required him to work with others in carrying out preparatory work for bands due to play in concerts. He still held that position at the time of the first accident.
36. He apparently earned little money from the casual work offered to him. His group certificates for the years ended 30 June 1999 and 30 June 2000 disclose gross earnings of only $2,274 and $604 respectively. Mr Pessey gave evidence that the group certificates would probably have reflected only some of the plaintiff’s earnings because the company had not always paid the employees for all of the work that they had done. The plaintiff seemed to have enjoyed the work because it brought him into contact with established performers in the music industry but it seems highly unlikely that he would have been content to continue living on such a low income when he had previously worked in a range of occupations and there is no reason to suppose that either full time or further casual jobs would not have been available to him.
37. He consulted his general practitioner on the day after the first accident because he had begun to bleed black blood and was in a lot of pain. The pain was in his right ankle and hip and also in his neck and back. Dr Tran found on examination that he had tenderness on spinous processes of the cervical spine and that his neck muscles were tender. Dr Tran prescribed an anti-inflammatory medication which the plaintiff thought had exacerbated the problem of internal bleeding.
38. The plaintiff said that the pain in his neck gradually got better over the next three to four months but that the pain in his right hip and leg and in his back persisted. He felt unable to manage living alone and moved in with his “grandfather”, a man who apparently acquired that status by marriage to the plaintiff’s grandmother and who had been somewhat younger than she had been. The plaintiff explained that when he moved his leg the amount of pain had been “unbelievable”. His grandfather proceeded to wash his clothes, cook his meals, clean up after him and take him to see doctors and lawyers when necessary. These activities consumed about 3-4 hours a week.
39. The plaintiff said that he attempted to return to Corporate Crewing after about three or four months but was able to perform only supervisory duties. He explained that he was unable to do any physical work because of the pain.
40. He first attended the Florey Medical Centre on 1 November 2000. He provided a history and made complaints primarily relating to abdominal pain and vomiting. Examination revealed a tender epigastrium and he was referred for a chest x-ray. The x-ray subsequently showed increased lung markings, which may have reflected previous inflammation, and also minimal osteophytes of the thoracic spine. He was seen again on a number of occasions prior to the second accident, apparently in relation to a chronic cough and Chlamydia infection.
41. The plaintiff said that about four weeks prior to the second accident he had been approached by his brother to run a business called “Quick Kerb Quick Pave” which involved the supply and installation of continuous concrete garden edging. In response to this invitation he went out to learn “the slumps”, which he explained were the different rates at which concrete would drop after coming out of the mixer depending upon the amount of water used and the ratio of the mix. He said that the concreting machine was self propelled and self-feeding and that he had needed only to provide guidance as to the direction of the mould. However, the concrete deposited onto the ground by the machine had to be hand finished and the necessary trowelling caused pain in his right hip and buttock area. He was also unable to do any of the necessary heavy lifting or to mix the cement. Other people were subsequently hired to do the heavy work and this left him in a supervisory position with nothing much to do. His evidence as to whether he would have continued in this role had the second accident not occurred was somewhat unclear. During the course of his evidence in chief, the following exchange occurred:

“Were you able to continue doing the work prior to the second accident or did you have to give it up?
A I did it – I gave it up. I did it three or four times and then I – no, I did it three or four times before the second accident, because that’s when we purchased it, and it was ready to roll.
Q Alright. If the second accident hadn’t have occurred (sic) would you have continued to do that work?
A Yes, yes, very much.”

42. There was convincing evidence of a dramatic change in the plaintiff following this first accident.
43. Mr Pessey was asked for his observations of the plaintiff prior to that accident in April 2000 and offered the following response:

He was good. He was one of the – how do you put it – one of the clowns of the crew, - you know, like make people laugh. At the same time, he knew when it was not to laugh and you had to get the work done. Like I said, I could count on him – I could leave and do another job and I could leave him in charge of my crew and not have to worry when I got back whether everything got done or whether there was going to be an accident or not. I knew that Mick was capable of doing a job without me having to look over his shoulder. I could go anywhere, I could even send him on a job – I sent him on a few jobs on his own with the crew where I had to be at another place. Top job. But then after his accident, it was sort of like he sort of like started dropping out. He couldn’t do heavy lifting. At first he was alright, but then it just got worse. I couldn’t even get him to lift a box with another person. In the music industry, everything is heavy, so we don’t do anything one off, so we don’t kill ourselves. Everything is from two, three, four people upwards and he was even struggling with that. When I had him with two or three other people on a box. He was starting to get bad at it. Then he started getting moody with the boys, so I had to restrain him. I couldn’t give him authority positions because he’d get too moody and the boys would start complaining. They could see, because they always used to like working for him, and in the end they started saying “we can’t handle him”.

44. Mr Pessey went on to explain that after the first accident the plaintiff appeared to have been suffering from physical pain and had complained a lot about his back and was unable to bend. He attempted to find him some jobs in the office or involving a purely supervisory role. However, the plaintiff eventually acknowledged that he had become too moody and expressed concern that “the boys” were going to start hating him. He had last seen the plaintiff during 2006 and found him a different person from the one he had previously employed. When asked whether he would have been able to employ him at any time since he ceased duty, Mr Pessey said that he would have had to spent a day with him to see what he was like and, in particular, to determine the nature and extent of his mood swings.
45. None of Mr Pessey’s evidence was challenged in cross-examination and I found him to be a reliable witness.
46. Mr Death said that he seen the plaintiff after the first accident but before the second accident and noticed that he had a walking stick. He said that the plaintiff had suddenly developed a very short temper and couldn’t do things like bend over the front of a car because it caused him discomfort. Mr Death subsequently offered him casual work on three separate occasions after the second accident but before the third. He explained that he had persisted because of the long association he had had with the Hall family. When asked what he had observed of the plaintiff during those periods, he said that it had been difficult to get him to do anything, that he had seemed extremely agitated and that it had been embarrassing to have him around customers. He had tried to keep the plaintiff out the back doing simple tasks like raking the yards or picking up rubbish. The plaintiff had been unable to bend down to pick up rubbish so they had given him a broom with a dustpan at the bottom of it but even then it had been “painful to watch” him attempting to work with this equipment. Mr Death said that he would not now employ the plaintiff but that if he had been “the Mick of old” he would have engaged him immediately.
47. The plaintiff’s brother Mr Geoffrey Hall (“Mr Hall”) gave evidence that prior to the first accident the plaintiff had been “a normal, fun-loving guy” and that he had been fit. He said that his brother had been very involved in music during the two years immediately prior to the accident but that he had had a couple of casual jobs during that period. He saw the plaintiff a week or so after the first accident and noted that he appeared to be in pain. He thought the pain was in his right hip. Mr Hall subsequently acquired the business, “Quick Kerb Quick Pave” which produced continuous concrete garden edging. He said that he had done so for two reasons: it supplemented the landscaping business he already had and it appeared to be the type of business that would be well suited to the plaintiff who had previously had experience in concreting. He proceeded to give him a trial run in the business and observed him laying the garden edging. Regrettably, however, the plaintiff proved unable to cope with the work. Mr Hall explained that the system involved a lot of physical and mental work and a fair amount of dexterity. The plaintiff had apparently been in too much pain in the right side of his hip and leg for him to complete the work and it had been embarrassing to have him on a customer’s site, trying to get him to do things that were beyond his capacity. He was unable to recall whether this work was done before or after the second accident but I accept the plaintiff’s evidence that it had commenced shortly before the first.
48. Mr Hall said that he had seen the plaintiff a week or so after the second accident and noticed that he had been in more pain. He said that at that stage he had been unable to get in and out of a car without screaming with pain. When it was put to him that the plaintiff appeared to behave in a rather demonstrative manner, Mr Hall said that he had not been like that before the first accident and “the dramatic change” occurred “probably six months or so after the second accident”. Asked about his physical condition over the years since the first and second accidents he said:

I think he looks like a man of 60. He’s – he’s not the same brother I’ve known all the years that I’ve him. He’s just gone downhill and he looks gaunt, I don’t know, and withdrawn. I mean, we’re a very, very close family but Mick’s has just pulled right away from everyone.

49. In cross-examination, Mr Hall said that he still owned the Quick Kerb business but that it had not operated since late 2005 and that his landscaping business had also remained inactive since about 18 months ago when he moved to Batemans Bay.
50. Each of these men were impressive witnesses and I accepted their evidence.
51. Following the second accident the plaintiff experienced further soreness to his right hip, elbow and ribs and also to his neck. He said that he had initially been in shock and that the real pain of the injuries began to come through only as the shock wore off. When he returned home, he found that his right hip had been “reinflamed”, his right knee and ankle were sore and he had suffered from headaches. He said that he had experienced problems with his knee after the first accident but had not sought treatment for it. It was not suggested that I should make any finding that he had suffered a significant injury to the knee in that accident.
52. He returned to the Florey Medical Centre on 25 July 2001 and provided a history relating to the second accident. Examination at that time revealed right upper abdominal tenderness and tenderness in his mid and lower back. It was noted that his back movements were moderately restricted and that his right hip movements were grossly restricted. On 27 July 2001 he returned to the hospital after finding that he could no longer stand on his right leg. He was given anti-inflammatory injections. He subsequently consulted a general practitioner, though he was unable to remember either his name or the suburb in which his surgery had been located.
53. In response to his increased levels of pain and resultant disability, his grandfather spent more time looking after him, initially devoting about seven to eight hours per week though that tapered off to the earlier level over a period of about two months. His grandfather was still continuing to supply some assistance of this kind in April this year, though he has since died. His mother also provided some domestic assistance for him, coming to his grandfather’s home every second or third day in order to assist with the washing, cleaning and cooking and taking him shopping. He said that she devoted about two to three hours a week to caring for him in that manner and maintained that assistance at least up until the time of the third accident.
54. He saw Dr McGrath, a musculoskeletal and occupational physician, on 29 October 2001. Dr McGrath noted complaints of persisting pain throughout the right hemi-pelvis since the first accident and an exacerbation by the second accident. He expressed the opinion that the plaintiff had had a dysfunction of the right sacroiliac joint. He also noted that the plaintiff had been acutely tender over the posterior aspect of the joint and had had an episode of acute pain, with apparent locking, whilst in his surgery. The plaintiff had also complained of persisting right upper abdominal pains, which Dr McGrath believed were induced by eating. He referred him to a gastroenterologist in respect of this condition. Dr McGrath subsequently reported that he had been unable to further assist the plaintiff in relation to his pelvic pains as he had missed three appointments.
55. The plaintiff was seen by Dr Thompson, a gastroenterologist, on 15 January 2002. Dr Thompson noted the history of rectal bleeding after the first accident but said that he suspected that this had been attributable to haemorrhoids. He also said that he had found the plaintiff to be a “rather anxious gentleman who had distractible tenderness in the right upper quadrant and on the lateral aspect of the right lower ribs”.
56. Following the commencement of these proceedings, the solicitors for the defendants arranged for the plaintiff to be assessed by Dr Max Wearne, a consultant orthopaedic surgeon. Dr Wearne saw him on 23 September 2003 and subsequently reported that the symptoms that the plaintiff claimed to have experienced following the first accident were “consistent with him having sustained soft tissue injuries to his neck, back, right side of his chest and the region of his right hip”. Dr Wearne thought that the subsequent bleeding from the bowel was probably unrelated. He said that the plaintiff’s description of the symptoms that he experienced following the second accident had been consistent with aggravation of the pre-existing soft tissue injuries to the right side of his chest and right hip. However, he had formed the impression that the level of claimed disability had been grossly exaggerated. Dr Wearne recorded that the plaintiff had told him that he had been in the process of recovering from the pain in the region of his right hip and the right side of his chest at the time of the second accident. Dr Wearne also said that the plaintiff had given him the impression that he had been regarded as fit enough to undertake the management of his brother’s concreting business. In the light of Mr Geoffrey Hall’s evidence, it is obvious that this history was quite inaccurate. Dr Wearne expressed the opinion that the plaintiff was fit to undertake any of his former occupations once his haemoptysis had been identified and treated.
57. Dr King saw the plaintiff on 12 May 2004 and subsequently reported that he had complained of right anterior lower chest pain that he said had occurred as a consequence of the motor vehicle accident on 5 April 2000. Dr King reported that this pain had apparently been exacerbated by a further motor vehicle accident in April 2001 (sic). He noted that when the plaintiff attended for the interview he had appeared somewhat dishevelled, had walked with a pronounced limp and had carried a walking stick in his right hand. Throughout the interview he had clutched his right side and repeatedly commented on how distressed he was with his pain. The pain in his right side had appeared to affect his ability to remove his clothes, particularly in regard to raising his right arm. Dr King proceeded to address a number of questions concerning a cyst on the plaintiff’s right kidney but said that this was unrelated to the plaintiff’s chest pain and did not need treatment.
58. The plaintiff was also assessed by Dr William Knox, a consultant psychiatrist, on 22 October 2003. Dr Knox found him to be anxious but “did not note frank depression of mood”, though he thought that the plaintiff’s anger possibly reflected some deeper unhappiness about his situation and he had said that he was “depressed” due to being disabled. Dr Knox found that the plaintiff was cognitively “intact” and said that there was no evidence of any psychotic illness. He said that a secondary psychiatric impairment had likely ensued and that this was manifested by the plaintiff’s anxiety. He expressed the opinion that the plaintiff had developed chronic anxiety over his state of health and frustration surrounding his compensation claims and that this had added to his experience of pain and perception of injury.
59. On 25 November 2004 the plaintiff was assaulted. He was thrown to the ground and pummelled and his head was thrown up and down onto the ground. He was subsequently admitted to hospital with bruising but released after about four hours. It was not suggested that he had suffered any lasting injury as a result of this incident.
60. On 7 January 2005 he was involved in a further motor vehicle accident. On this occasion he was driving on Gungahlin Road when a tyre blew out as he approached a corner. His car veered off the wrong side of the roadway and was struck by a vehicle travelling in the opposite direction. He was initially taken by ambulance to Canberra Hospital, but discharged shortly afterwards. Later that day the plaintiff attended Calvary Hospital. The plaintiff was eventually found to have sustained a number of injuries, including broken ribs, an orbital skull fracture, a chipped elbow and re-aggravation of the earlier injury to his right knee.
61. The incident that gave rise to the plaintiff being charged with and subsequently convicted of assaulting his former solicitor, Mr Robb, occurred on 19 October 2005. At the time he have evidence, an appeal against his conviction was still pending and counsel accepted that it was inappropriate to cross-examine him about the incident, though Mr Ryan did seek to explore the nature of any injuries he may have suffered and the extent, if any, to which they may have contributed to his subsequent level of disability. The plaintiff said that during the course of the incident he had suffered major bruising around his neck, bruising up and down his spine and swelling of his knee. Following this incident his back had been sore for a couple of days before subsiding to its earlier condition. The swelling in his knee had lasted for about two weeks. I accept that evidence.
62. When the plaintiff gave evidence in April this year, he said that he was no longer experiencing any difficulty with his neck. He said that he still got headaches but explained that they were worse than normal headaches and required an unusual amount of analgesics, but that he had not had one for about a month and a half. He added that, “it might be three or four times or five times since the actual accidents that I have had these major headaches”. He said that the accidents had had a terrible effect on him emotionally. He said in explanation:

Well, it’s about respect and about dignity. I’ve got a lot of supportive people, but the thing about it is that we live in a world where everybody sort of helps each other and are used to doing things, and all my friends and all the people that I know, they have always been able to turn to me or ask for help or have me be there. And I’m just not able to participate in any sort of a normal social life. I can’t go out, I can’t . . . . . I mean its just totally devastated my life to a way that I don’t feel like I can fit in normally in a normal environment. The only ones that make me feel normal are my family . . . I’m not robust any more and I can’t do the things that (my mates would) like me to do and participate in life. Gee, it does, it really does, it makes you sit at home . . . and you’re just so alone. I’m just – you know, you want to do something, you want to go out, but you can’t, you know, you can’t, it’s ridiculous. It really, really is. But, I’m coping with that. I mean, I’ve got to learn to cope with it, and over the last five or six years I have begun to cope with it. But, yes, no, it’s a devastating thing. It’s not just the injuries, it’s the actual isolation, you know. . . . . It’s just not the same. My life is just nowhere near the same.

63. He said that he would not go to bed until very late because he was frustrated and upset all the time and that he would then sleep until about midday. He attempted to exercise without the use of his walking stick but his knee and hip seemed to be getting worse. He felt that he was a cripple. Bending caused him pain and he was usually unable to remain seated for more than about an hour and a half before the pain increased to the point where he would have to get up and walk around. Walking on uneven ground caused him further problems in his right hip.
64. Notwithstanding these disabilities, he had begun to care for an old friend, Mr Stuart Scott, who had apparently become severely disabled. He assisted him by helping him dress, ensuring that he had his medication and making arrangements for him to receive physiotherapy, meals on wheels and attention by other health professionals.
65. The plaintiff said that he still has pain in his back, which is relieved if he lies prone but aggravated by bending or exertion. His hip is in constant pain and aggravated by too much physical activity. Similarly, his knee is in constant pain and aggravated by exertion.
66. In cross-examination he was asked whether his physical condition had been improving during the period immediately prior to the second accident. He said that his hip and back were still reasonably painful but that his knee had not been as bad at that stage.
67. He was subjected to a number of medico-legal assessments during 2006 and 2007.
68. Dr Alan Searle, a consultant orthopaedic surgeon, saw him on 7 June 2006, and observed that he was rather difficult to assess because of the somewhat confusing history he had provided and an apparent over-reaction to examination. Nonetheless, he noted that there were objective signs of disability such as guarding and asymmetric loss of motion and muscle wasting. He concluded that the plaintiff had suffered lumbar ligament strain in the first accident and that this had been aggravated by the second accident which had also caused internal derangement of the right knee. He said that because of these accidents the plaintiff was unfit for all forms of gainful employment and that this incapacity was permanent.
69. Dr Searle was subsequently asked to comment upon a report by Ms Suzanne Ravagnani, an occupational therapist, and expressed overall agreement with her assessments and recommendations.
70. He was later asked to review MRI reports relating to the right hip and right knee. He expressed the opinion that the plaintiff had a torn meniscus in the right knee had that this would require arthroscopy at an estimated cost of $7,000. He said that the damage to the right hip demonstrated in the MRI did not seem to be causing a great deal of difficulty or significant symptoms at that stage but would probably cause degenerative changes to gradually develop. The symptoms would gradually increase but would probably be controlled by conservative measures, though it might be necessary to consider arthroscopy and/or steroid injection into the joint. He expected the arthroscopy to cost $7,000 and that the three steroid injections that would be required would cost $250 each.
71. In April 2007 Dr Searle responded to a letter advising him of the assault which the plaintiff experienced on 25 November 2004, the head-on collision on 7 January 2005 and the incident with Mr Robb on 19 October 2005. He said that, accepting that the additional history was as described and that in each case the aggravation had gradually dissipated and his symptoms had returned to their previous level, then the additional information would not cause him to alter the opinions he had previously expressed.
72. On 28 June 2006 the plaintiff was assessed by Dr Peter Conrad, a surgeon, who noted that as a result of the first and second accidents he had sustained a neck strain, which had subsided, and that he had considerable ongoing back pain, right-sided sciatica and radiculopathy and pain and stiffness of the right hip and right knee. Dr Conrad expressed the opinion that these conditions were permanent and stable and suggested that the plaintiff needed ongoing physiotherapy and that he should be sent for pain management. He said that the plaintiff was not fit for heavy labouring work and that at most he might be able to do some very light cleaning work starting about twelve hours per week in a position that he could stand or sit at will and not do a lot of standing or walking, bending or lifting. He said that the plaintiff should not use heavy industrial vacuum cleaners or polishers and that any such work should be adopted as part of a structured rehabilitation program. Dr Conrad also said that, should his grandfather not be able to help with the heavier part of the housework, he might need about six hours per week of home care assistance.
73. In a subsequent report, Dr Conrad expressed the opinion, that, using the “Combined Values Chart”, there was an 18 per cent whole person impairment due to the two accidents. He estimated that 80 per cent was attributable to the first accident and 20 per cent to the second accident. He added that the plaintiff had given his history consistently and that the “measurements” appeared plausible.
74. In a further report dated 19 September 2006, Dr Conrad referred to an MRI scan on the plaintiff’s right knee which, he said, revealed a horizontal cleavage tear of the posterior horn of the median meniscus. He said that this was almost certainly due to the motor vehicle accidents and that he might need an arthroscopy and arthroscopic meniscectomy that would cost about $4,000. He also noted that Ms Ravagnani’s report had referred to the third accident in January 2005 and that the plaintiff had previously failed to mention this to him. He said that, providing that the plaintiff had made a reasonable recovery from this accident and had not aggravated any of the earlier injuries, this accident would not influence the findings expressed in his earlier report.
75. In a further report dated 12 April 2007, Dr Conrad addressed the assault of 26 November 2004 and the further motor vehicle accident on 7 January 2005 by reference to the relevant clinical notes and expressed the opinion that, on the balance of probabilities, it was unlikely that these incidents had aggravated the ongoing symptoms due to the first and second accidents.
76. Dr Milton Cohen, a consultant physician in rheumatology and pain medicine, examined the plaintiff on 29 June 2006. He said that the plaintiff’s reported disability appeared to be discordant with the discernable pathology. He noted that he had a mild gait abnormality arising from his hip joint that was responsible for some mechanical pain in the lumbar spine and mentioned his suspicion that the quadriceps’s wasting in the right knee was the result of relative disuse. Dr Cohen said there appeared to be significant non-somatic influences on the plaintiff’s presentation which had implications for his ability to continue to work. Dr Cohen also opined that the plaintiff’s osteoarthritic right hip could be expected to change slowly over time and might require surgery within the next twenty or thirty years. He said that it was not clear to what extent the plaintiff’s predicament had been treated or what attempts had been made towards rehabilitation but said that, without a comprehensive rehabilitation and vocational assessment, it was certainly “difficult to envisage how he could re-enter the workforce in the immediate future”.
77. Dr Paul Ruefli, a psychologist, provided a report dated 1 September 2006 in which he expressed the opinion that the plaintiff was suffering from chronic and severe post-traumatic stress which deprived him of pleasure and joy in life and completely limited his “ability to function normally as he did before the first accident in 2000”. Dr Ruefli was subjected to a searching cross-examination and conceded that he had not made contemporaneous notes of some of the matters mentioned in his report. Whilst I gave this consideration due weight, I nonetheless accepted the general thrust of his opinions.
78. Dr Pascall saw the plaintiff at the request of the defendant’s solicitors on 11 October 2006. She expressed the opinion that he had suffered a right hip injury in the first accident but that this had most likely been minor. She suggested that this may have been the beginning of a labral tear. She observed that his presentation to the Canberra Hospital on 27 July 2001, seven days after the second accident, had not been for hip pain as such but for severe back ache and an ability to move his right leg. She had noted on examination that he had had a painful hip consistent with an on-going problem and that there had been no mention of the knee. She said that it appeared that there was not a significant aggravation of the right hip condition in the July 2001 accident. She went on to recount a history of symptoms in the right hip in 2004, but, of the plaintiff “managing satisfactorily” whilst subsequently on a property in Gundaroo. She said that “therefore”, it had to be concluded that the aggravation occurred subsequent to the January 2005 accident. Having regard to the evidence given by the plaintiff, his brother and others, I think that this conclusion was almost certainly based upon a misconception, probably attributable to the plaintiff’s apparently limited ability to provide an accurate history.
79. Dr Pascall noted that the right knee injury did not occur in the April 2000 accident and suggested that the history of knee pain occurred for the first time in May 2005. The latter suggestion again seems to have been quite inaccurate.
80. Dr Pascall said that the present symptoms in the right hip had a continuous relationship with the accidents of April 2000 and, to a lesser extent, the July 2001 accident. She said that the hip symptoms had been significantly aggravated in the January 2005 accident. It was difficult to tell whether this reflected a true aggravation of the hip condition but she was of the opinion that there had been such an aggravation.
81. In cross-examination Dr Pascall agreed with the suggestion that the plaintiff was “certainly” still employable after the April 2000 accident. This conclusion seems to have been based upon an assumption as to the sort of bruising he might have got from such an accident. She said that, “giving him the benefit of the doubt that there was something going wrong with his hip at the time”, she would have excluded him from heavy lifting and carrying and possibly some squatting down. She suggested that the January 2005 accident was “about 80 percent of the contribution to the total picture that I saw”. She conceded that this was not the impression that she got from the plaintiff. On the contrary, he had been “rigid in his thinking” that it was all attributable to the earlier problems. She went on to suggest that he was 15 to 20 per cent incapacitated due to the first and second accidents, another 30 per cent incapacitated due to the last accident and that the rest of his disability was associated with his below average intelligence, anxiety problem or disorder and behavioural problems that she thought probably existed before the first accident.
82. Counsel for the defendant stressed that, whilst Dr Pascall had seen the plaintiff at the request of the defendant’s solicitors, she was in fact called by counsel for the plaintiff and cross-examined by counsel for the defendants. Whilst this fact clearly placed Mr McIlwaine at some disadvantage in dealing with the answers elicited from her in cross-examination that were inimical to his client’s interests, it obviously does not require me to accept of her opinions. In fact, I found Dr Pascall’s overall assessment of the development of the plaintiff’s disabilities quite unconvincing. It was clearly inconsistent with the evidence of Dr Searle and Dr Conrad and substantially inconsistent with the evidence of people who had known the plaintiff throughout the years in question.
83. The defendant also relied upon evidence from Dr Synott, a psychiatrist, who assessed the plaintiff on 19 October 2006. Dr Synott noted that the plaintiff had provided a history of various physical symptoms and claimed to have been in constant pain and physically incapable of participating in any employment. He had also referred to a range of psychological symptoms. He had said that these had settled more recently, but that he remained frustrated with his physical limitations and distressed by the physical symptoms. He had also said that he was motivated for employment and suggested that there was no psychiatric impediment or incapacity for employment. Dr Synott commented that this was “congruent” with his mental state examination on the day that had revealed no psychiatric disorder or impairment.
84. Dr Synott said that the plaintiff had probably experienced sufficient psychological symptoms to meet the diagnostic criteria of an adjustment disorder at various times over the last few years but no longer did so. In cross-examination he explained that psychological symptoms ebb and flow in their intensity and severity. The diagnosis of an adjustment disorder is dependent upon an assessment of several things including the number of symptoms, their degree and severity and the context in which they appear. In cross-examination it was put to him that there had been evidence from lay people who had known the plaintiff before the first accident and had said that he had then been a fun-loving, happy, gregarious type of person but that after that accident he had exhibited signs of depression, moodiness, anger and an inability to cope with normal stresses. Dr Synott agreed that, if this evidence was accurate, it was certainly possible that the plaintiff had some psychological illness.
85. In my opinion the evidence given by Mr Pessey and others demonstrates that the first accident had a dramatic effect upon the plaintiff’s physical and emotional well being. I am satisfied that the plaintiff’s enjoyment of life has been very substantially impaired by his present disabilities and that he has been left, not only with a legacy of pain, but also with significant psychological problems. I am also satisfied that these problems were caused predominantly by the first accident, though undoubtedly aggravated to some extent by the second accident. The third accident obviously involved a potentially serious collision and it is, I think, understandable that Dr Pascall attributed much of the plaintiff’s continuing disability to injuries sustained or exacerbated by that impact. Furthermore, as previously mentioned, the plaintiff seems to be a poor historian. I suspect that some of the specialists who provided medico-legal reports may have been misled by his inability to provide accurate accounts of the nature and extent of his disabilities at various times since April 2000. I accept the evidence of Dr Searle that he is unemployable and that this disability is likely to be permanent. So far as I am aware, none of the expert witnesses for either side had the benefit of evidence such as that provided to me by Mr Ostell, Mr Death, Mr Pessey and Mr Geoffrey Hall. I found their evidence compelling.
86. I am satisfied that, whatever the precise aetiology of the plaintiff’s psychological difficulties, they have caused him significant distress and are likely to have far reaching consequences for him. He is already resistant to treatment that might alleviate his pain to some extent and it seems unlikely that he would be employable even in the event that a job could be found that would be within his limited physical capacities. These difficulties are also likely to impinge upon his ability to form or maintain friendships and social support networks. I am also satisfied that he suffers chronic and severe physical pain. He has clearly been frustrated and anxious about the prosecution of his claim and it is possible that his psychological and physical condition may improve to some extent when the litigation has been completed and he has the benefit of substantial damages to fund changes in his lifestyle. Nonetheless, it seems likely that he will suffer significantly for many years and perhaps even permanently.
87. I find that the first accident was primarily responsible for his present level of disability, but that the second accident did cause a significant aggravation of his pain and his emotional distress. I am satisfied that it may still have some lingering, though relatively minor, effect upon his future physical and mental condition.
88. I am conscious of the fact that the first and second defendants are sequential rather than joint tort feasors, and that the proper approach is to assess the damages appropriate for the injuries suffered in the first accident and then the damages appropriate for the exacerbation of those injuries and any further injuries suffered as a consequence of the second accident. Such an exercise is inevitably problematic. One may, for example, form an impression that 80 per cent of the plaintiff’s pain is attributable to the first accident and 20 per cent to the second, but that would not necessarily warrant a conclusion that he would have taken correspondingly fewer analgesics or that he would have been unemployable for correspondingly less time had the second accident not ensued. Nonetheless, whilst not strictly an apportionment of the kind that must be undertaken between joint tort feasors, it is necessary for me to make an assessment of the extent to which the various components of loss or damage have been caused by the first and second accidents respectively.
89. In relation to the first accident I allow general damages in the sum of $80,000. I allow a further sum of $6,000 for interest on a component of $40,000 which I apportion as referable to the pain and suffering already experienced as a consequence of the first accident. In respect of the second accident I allow the sum of $30,000 and a further sum of $2,800 for interest on the component of $20,000 referable to past pain and suffering attributable to this accident.
90. It was agreed that I should make an allowance of $4,000 for out-of-pocket expenses. No breakdown of this figure was agreed and there was no evidence as to the actual items of expenditure to which it related. Accordingly, I can make an assessment on the basis of my perception that most of the medical and pharmaceutical expenses would have been incurred even if the second accident had not ensued. I assess the sum of $3,500 as attributable to the first accident and $500 as attributable to the second.
91. It is also difficult to make any accurate assessment of the magnitude of the plaintiff’s future medical expenses because, whilst he was adamant that he would not accept surgical intervention, that attitude was, I suspect, attributable to his deep distrust of the medical profession and that was, in turn, related to his current psychological condition. It is possible, though I think less than probable, that his attitude to surgery may change in time. He was not similarly resistant to steroidal injections and will, in any event, obviously require analgesic and anti-inflammatory medication for many years, if not permanently. In the circumstances, I think it is appropriate to make an assessment that reflects the likely cost of pharmaceutical expenses, medical consultations and injections, and also some allowance for the chance that he may come to accept surgical intervention. Ms Ravagnani assessed his future medical expenses at $413.50 per annum, though that figure does not appear to include any allowance for the possibility of future surgery. I allow the sum of $12,000 and attribute $10,500 of this sum to the first accident and $1,500 to the second.
92. The plaintiff has also made a claim for damages in accordance with the principles in Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161. He has already had to rely upon domestic help from his grandfather and his mother, and will obviously need further assistance in the future. I had the benefit of a detailed report from Ms Ravagnani as to the impact of the injuries on the plaintiff’s need for assistance in caring for himself, maintaining his home and engaging in rehabilitative activities. Ms Ravagnani estimated that between the date of the first accident and 29 August 2006 when she provided her report the plaintiff had required six hours assistance per week. That seems to be broadly consistent with the other evidence before me. Accordingly, I allow six hours per week for a period of 390 weeks. Whilst I am conscious of the fact that she had adopted a higher figure in August 2006, I think it is appropriate to work on an average rate of $20 per hour over the years since April 2000. That amounts to $46,800. It does not appear that the assistance provided by the plaintiff’s grandfather and mother increased substantially after the second accident. However, there had apparently been some improvement in his condition immediately prior to that accident and, whilst he proved unable to carry out the tasks that would have been required of him in the Quick Kerb business, I think that some allowance should also be made for the possibility that his need for assistance might have tapered off to some degree had that accident not occurred. I attribute $40,000 to the first accident and $6,800 to the second.
93. Ms Ravagnani provided the following summary of the plaintiff’s ongoing needs:

Service, Equipment or Item Replace One off Annual Weekly

Medication Required Cost Period Cost Cost Cost

For ongoing

See Appendix for Suppliers Years items

Hydrotherapy $2000.00 $38.36

Exercise supervision 360.00 6.91

Physical treatment 1080.00 20.71

Medical 413.50 7.93

Podiatrist 360.00 6.91

Recliner lounge 2000 10 200.00 3.84

Domestic 9,971.94 191.25

Vocational Assessment 2000

Education & Employment 7440

Estimated cost of future services

and equipment $9440 $14385.44 $271.91

94. Whilst I accept that all of these things might be beneficial for the plaintiff, there was no evidence that he had ever participated in hydrotherapy, that he was likely to engage in supervised exercise, or that he would need to see a podiatrist on a regular basis. Nor, in my opinion, was there sufficient evidence to warrant an allowance for the purchase of a recliner lounge every ten years. An allowance for future treatment has already been made.
95. I do accept that an allowance should be made for vocational assessment and for education and employment. I think it is unlikely that the plaintiff will attempt to take up these options in the immediate future but he has previously demonstrated a willingness to undertake different types of employment and some capacity to change roles, albeit within “hands on” type occupations. I think it is quite likely that he will at some point seek to obtain some form of gainful employment should his psychological state improve at some stage in the future and should the buoyant state of the employment market provide avenues of part time employment for someone of his age and level of disability. Given the plaintiff’s experience with Quick Kerb, I think that these expenses would have been necessary even if the second accident had not occurred. Accordingly, I allow the sums of $2,000 and $7,440 and attributed both wholly to the first accident.
96. Ms Ravagnani’s figure of $9,971.94 per annum for domestic assistance is based upon an estimate that he will require four hours per week assistance with housework, two hours per fortnight with gardening and two hours per fortnight with home maintenance and repairs. In view of the death of his grandfather and the likelihood that his mother will be able to come over and help him less frequently as she becomes older, I think it is likely that he will become more dependent upon commercial home care. In any event, I think that the approach suggested by Ms Ravagnani provides a reasonable starting point for a future allowance. The plaintiff is now 46 years of age and could be expected to have a life expectancy of about 38 years. The present value of $9,971.94 per annum, or $191.25 per week, calculated over that period at a discount of over 3 per cent per annum would be $227,778. However, this figure would not take into account relevant contingencies. It is possible that the plaintiff’s condition might recover, if not wholly, at least to the point where he could take more responsibility for his own housework and, conversely, possible that he might have sustained some incapacity due to causes unrelated to the first or second accidents. Further, even if these accidents had not occurred, he may have ultimately needed assistance of this kind due to conditions associated with the inevitable process of aging. For these reasons, I think that a much greater discount should be allowed than is normally applied for losses calculated only to retirement age. I discount this amount by 45 per cent to $125,278. I attribute $100,000 of this amount to the first accident and $25,278 to the second.
97. Any assessment of the plaintiff’s loss of earnings is also fraught with difficulty. Mr McIlwaine stressed that he is entitled to damages to compensate him for his loss of earning capacity, even if he had not been fully utilizing that capacity at the time of the relevant injuries. Nonetheless, it seems to me that any assessment of earning capacity must take into account, not only such obvious factors as qualifications, experience, physical prowess and intellectual ability, but also matters of temperament and predisposition to the extent relevant to this issue. It is also necessary to avoid any doubling up of damages by, for example, awarding damages for loss of the plaintiff’s capacity to work on a full time basis whilst, at the same time, awarding general damages for loss of the enjoyment of recreational activities that might have been pursued during times that would have been devoted to work had that capacity been exploited. In the present case, I am satisfied on the evidence that the plaintiff has lost a capacity to earn at least an average income of $500 per week net throughout the period since the first accident. If his employment had been sustained throughout that period for 390 weeks he would have earned $195,000. However, having regard to the nature of the work he had been pursuing with Corporate Crewing and also to his disjointed pattern of work prior to the first accident, I think it is most unlikely that he would have done so. Accordingly, I think it is appropriate to discount that amount and in all of the circumstances I intend to apply a discount rate of 25 per cent. That reduces the figure to a net loss of $146,250. I allow interest on that amount at 5 per cent per annum for 7.5 years. That amounts to a further sum of $54,844. Hence, I allow a total loss of $201,094. I think that the plaintiff would have been substantially unemployable throughout the relevant period as a consequence of the first accident but cannot exclude the possibility that he would have returned to the workforce on a limited basis had the second not ensued. Accordingly, I attribute $161, 094 to the first accident and $40,000 to the second accident.
98. The claim for future economic loss is predicated upon an assumption that the plaintiff would have been able to derive at least 80 per cent of net average weekly earnings and I accept that this would be a reasonable starting point. That would presently amount to $638.40. This rate, extrapolated for a period of 13 years to age 60 with a discount rate of 3 per cent per annum, would suggest a theoretical net loss of $365,049. Having regard to the plaintiff’s history, I think it is again appropriate to apply a much larger discount to this figure to allow for the potential contingencies of life. Accordingly, I reduce it by 35 per cent. That results in an amount of $237,282. I attribute $190,000 to the first accident and $47,282 to the second.
99. No issue of a Fox v Woods component has been raised.
100. There will be judgment for the plaintiff against the first defendant in the sum of $600,534 and against the second defendant in the sum of $154,160.
101. I will hear counsel as to costs.

I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour Justice Crispin.

Associate:

Date: 21 September 2007

Counsel for the plaintiff: Mr R McIlwaine SC with Mr GJ Davidson
Solicitor for the plaintiff: United Legal
Counsel for the defendants: Mr P Ryan
Solicitor for the defendants: Moray & Agnew
Dates of hearing: 16, 17, 18, 19, 20 April, 14, 15, 16 August 2007
Date of judgment: 21 September 2007