Nominal Defendant v Armstead [2005] NSWCA 429 (5 December 2005)

CITATION: The Nominal Defendant v Armstead [2005] NSWCA 429

FILE NUMBER(S):

40512/05

HEARING DATE(S): 25, 26 October 2005

JUDGMENT DATE: 05/12/2005

PARTIES:

THE NOMINAL DEFENDANT (Appellant)

Richard Paul ARMSTEAD (Respondent)

JUDGMENT OF: Handley JA Santow JA McColl JA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20439/02

LOWER COURT JUDICIAL OFFICER: Cooper AJ

COUNSEL:

B J GROSS, QC/ P GOW (Appellant)

D A WHEELAHAN, QC/ P J FRAME (Respondent)

SOLICITORS:

McMahons National Lawyers (Appellant)

Lamrocks (Respondent)

CATCHWORDS:

NEGLIGENCE - LIABILITY - Respondent suffered injuries rendering him quadriplegic when thrown from his motor bike, striking his helmet against kerb – whether sufficient consideration given to evidence, both lay and expert, that there was in fact no other vehicle – whether respondent’s multiple version evidence should be accepted

CONTRIBUTORY NEGLIGENCE - whether accident the result of excessive alcohol intake and/or excessive speed.

DAMAGES - - whether amount awarded for future paid care and computer needs excessive – relevance that would or might have acquired a computer even without injury suffered – relevance of need.

EVIDENCE – prior statements said to be self-serving and/or inconsistent – admissibility in evidence following s60 of Evidence Act.

LEGISLATION CITED:

Evidence Act s60

Law Reform (Miscellaneous Provisions) Act 1965 s9(1)(b)

Motor Accidents Compensation Act s138

DECISION:

(1) Appeal disallowed, save that damages are reduced by $460.22.

(2) Appellant to pay the respondent’s costs of the appeal.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40512/05

SC 20439/02

HANDLEY JA

SANTOW JA

McCOLL JA

5 DECEMBER 2005

THE NOMINAL DEFENDANT v Richard Paul ARMSTEAD

Judgment

1 HANDLEY JA: I agree with Santow JA.

2 SANTOW JA:

INTRODUCTION

The Nominal Defendant appeals against the award of $6.4 million to Richard Armstead for injuries he suffered which rendered him quadriplegic following a motorcycle accident. The trial judge, Cooper AJ, following a careful and comprehensive consideration of the evidence, accepted the respondent’s case that, while travelling between 30 and 35 kph, he was forced while negotiating a curve in the road to take emergency evasive action to avoid an oncoming car on its incorrect side of the road with its high beam illuminated, causing him thereby to lose control.

3 It was undisputed that the respondent was thrown from his motor bike, so striking his helmet against the kerb. What is disputed is how this came about. The appellant unsuccessfully contended at trial and presses on appeal, that the accident was caused by excessive speed in rounding the curve of the road, there being no oncoming car; moreover, the respondent was affected by alcohol, a matter going both to liability and contributory negligence. The respondent frankly admitted at trial that he had drunk five or six schooners of beer over two hours, the accident occurring some 45 minutes later that night. However, taking this into account the trial judge did not accept that there was any contributory negligence, as

(a) the respondent did react appropriately in the circumstances by taking evasive action, braking hard and steering to the right, and

(b) with or without the effects of alcohol a fall from the bike was highly likely to occur.

4 This appeal is both on liability including as to whether there was contributory negligence, and on damages. The latter is concerned only with the amount awarded for future paid care and for computer needs, which the appellant contends in each case was excessive.

5 As to liability, the issues are as follows:

(a) whether the trial judge erred in concluding, despite the denial of Mr Fowler as a witness, that the red light he saw was the rear headlights of the other vehicle said to have been on the wrong side of the road;

(b) whether the trial judge erred in disregarding the evidence of a Dr Soden, a data collector for the Register of Spinal Cord Injuries cases at Royal North Shore Hospital where the respondent was in intensive care with a tracheotomy, insofar as Dr Soden recounted an explanation for the accident some two weeks thereafter based on debris on the road as the result of rain and where no mention was made of any other vehicles;

(c) whether the trial judge erred by

(i) either mistaking the evidence as to the facts or by placing undue weight on the proposition that “all experts agree that the objective facts are consistent with the [plaintiff] having made an emergency turn to his right ...”,

(ii) incorrectly treating the repetition of prior consistent self-serving statements by the respondent as probative evidence in the respondent’s favour of the truth of those statements, and

(iii) in failing to have regard to what were said to be eight versions of what had occurred emanating from the respondent or in relying on them as prior consistent statements when said to be self-serving and of no weight;

(d) contributory negligence said to be the result of excessive alcohol intake and/or excessive speed.

SALIENT FACTS (with competing versions where disputed)

6 What follows are the bare facts, before turning to their elaboration.

7 On 9 March 2000, at about 10.30pm, the respondent was riding his motorbike on Crescent Road, Newport, in a northerly direction.

8 Crescent Road is a narrow winding road sealed from kerb to kerb and 8 metres in width. Down the centre of the roadway is a set of double dividing lines.

9 When travelling north, Crescent Road makes a sharp left-hand turn and is uphill to the intersection of that street with Cecil Road which enters from the respondent’s right (the east); Blue, 1.

10 Opposite the mouth of that intersection is the crest of the hill and a sharp left-hand bend. There is a break in the centre lines opposite that mouth for approximately nine metres. To the north of that intersection Crescent Road slopes steeply downwards (an 18% grade) to the intersection of Yachtsmans Paradise which enters Crescent Road on the left (the west). From the intersection of Cecil Road to the intersection of Yachtsmans Paradise is approximately 75 metres. At the bottom of the hill and at about the intersection of Yachtsmans Paradise is a set of four islands in the centre of the roadway.

11 It is along the section of Crescent Road between the intersections of Cecil Road and Yachtsmans Paradise that the accident occurred.

12 It was dark but the weather was fine and the roadway was dry, though there had been heavy rain in the preceding week including the day before.

13 The respondent’s version of events was that, as he was rounding the curve at about 30-35kph, he was suddenly confronted by a vehicle coming south in the opposite direction on the wrong side of the road with its lights on high beam, forcing him to take evasive action by braking hard and steering to the right, whereby he came off the bike.

14 The appellant contended that the accident was caused by excessive speed in a single vehicle scenario. According to that contention, the respondent took the left hand curve at excessive speed, crossed onto the wrong side of the road and lost control as he was trying to get back again to his correct side.

15 The speed limit in Crescent Road appears from evidence from Pittwater Council to have been 40 kph although there is some dispute as to whether this was clearly indicated.

16 The respondent struck his helmeted head on a concrete kerb and was rendered quadriplegic. He suffered an initial period of unconsciousness and then an extended period of post-traumatic amnesia though its precise effect is disputed.

The trial judge’s treatment of the evidence as bearing upon the Grounds of Appeal

17 What follows is the trial judge’s treatment and findings on what occurred, along with an elaboration of the critical parts of the evidence as to what happened, or the competing versions.

18 Mr Armstead testified that he was familiar with this section of roadway having traversed it hundreds of times in both daylight and night-time. He was riding a 600cc Kawasaki motorcycle which was only about three months old. He was wearing an approved full-face helmet which was about the same age. Both were in excellent condition. He liked driving along that route to his then home because there were no traffic lights and he regarded it as a very pleasant route (Red, 15S-Y).

19 As he was approaching the intersection of Cecil Road he described his speed as around 40 kph and his position approximately half a metre to the left of the centre lines. As he came to the crest of the hill opposite Cecil Road he slowed down because the corner turns to the left more than 90° (Red, 16K-N).

20 As he rounded that left-hand bend he contended that he was confronted and blinded by a set of headlights on high beam approaching him on his side of the road. His evidence was that, at this stage, he was approximately where the double lines started again on the north side of the intersection of Cecil Road. In evidence he was unable to say how far away the lights were from him when he first saw them. The trial judge accepted that account, though challenged by the Nominal Defendant.

21 At this time his motorcycle was leaning about 10 to 15° to the left because he was going around a left corner at a speed of around 30 to 35 kph. He testified that, had he continued on the path he was then travelling he would have hit the car head on (Red, 16O-V). He acknowledged that he had given the police a statement of that distance of “about 20 metres” away from him, on 9 March 2000 (Blue, 588), but that he was pressured into giving a distance (Black, 108V, 120H). He agreed in cross-examination that ten days earlier he gave the same answer to female police officers (Black, 128). On the latter he recounted that “I said that I can’t recollect the distance ... Twenty, I guess, might have been more, I don’t know ...”. (The cross-examiner’s purpose was to press him on the fact that with only 20 metres separation, it would be impossible to avoid collision, by applying brakes, dropping gears and swinging to the right (Black, 129E).

22 His evidence was that on realising the danger of the imminent collision he applied his brakes, straightened the bike up to the perpendicular position, changed down a gear to slow down more, pushed down hard on the front brake to slow down quicker and then sharply turned off to the right to get out of the way of the oncoming vehicle (Red, 16W-17D).

23 He crossed the double lines and remembered putting the brakes on and he had a vague memory of going over the handlebars and remembers nothing else. So far as he could recall his motorcycle was then straight and stable going off to the right (Red, 17E-H). It is undisputed that Mr Armstead ended up 33 metres down Crescent Road from the intersection with Cecil Road, while the bike ended up some 43 metres down Crescent Road from that intersection.

24 His next memory was waking up in hospital (Red, 17L).

Evidence of Lay Witnesses

25 Brendan Fowler was walking down the driveway at 47 Crescent Road (his mother’s house). No 47 is located at the end of a steep uphill driveway, some 70 metres long, leading from Crescent Road. It is on the eastern side of that road. It was accepted that Mr Fowler was in the treed portion of that driveway, closest to the house just over 50 metres back; his vision was obstructed and at a distance from the accident.

26 Mr Fowler gave evidence that he saw a red light about the same size as a tail light and, at the same time, he heard what sounded like a motorcycle engine at full throttle. The red light went from his left to his right upwards at an angle which he indicated at about 60° from the horizontal and then downwards but he could not see its downward movement. Immediately after that, he heard a crunching noise of metal on something hard coming from Crescent Road. He ran down to the roadway and saw a rider to his left with his face down in the gutter near the driveway to No 45, and a motorcycle was on his right on its side at the driveway to No 47 with its rear wheel still spinning but the engine was not running (Red, 18R-19C]. (No 45 was next door to No 47 and nearer to the Cecil Street intersection).

27 The expert witnesses called by both parties agree that the scratch marks on the right hand side of the motorbike were consistent with the motorcycle having slid down the hill on its right hand side and at the same time turning around whilst on its side (Red, 19R-V).

The trial judge’s treatment of the expert evidence

28 The trial judge noted some “red herrings” – evidence which was inconsistent and which he did not accept (see Red, 20M-24R). These included:

(a) skid marks on the road but (as he observed) none were found to be connected to the accident though there were scrape marks on the road identified by Mr Fowler which appeared more likely to be connected;

(b) damage to the motorcycle, which was, according to two of the experts Mr Stuart-Smith and Mr Griffiths and accepted by the trial judge, inconsistent with it having tumbled side over side, and

(c) the estimate of 20 metres distance which Mr Armstead had been pressed to give as to which the trial judge said (at [45]):

“45 The plaintiff gave evidence that he was reluctant to tell both the police and the investigator how far away the vehicle was when he first saw it. He was pressed to give a distance and he expressed the opinion of 20 metres. Such an estimate however is totally unreliable. He was blinded by the oncoming headlights and therefore would have been unable to distinguish any of the surrounding features which would enable him to make any reliable estimate. Furthermore he was confronted with an emergency and had to react in an emergency. With the benefit of hindsight and in the calmer atmosphere of the Court he has said that it was more likely that the oncoming vehicle was further away. I have no hesitation in accepting this evidence.”

29 It is fair to say that none of these matters appeared to be in issue on appeal.

30 The trial judge found that the appellant’s version of events was supported by some of the evidence called on its behalf, but found that

“of greater significance is the fact that all experts agree that the objective facts are consistent with the plaintiff having made an emergency turn to his right to avoid a perceived danger and in the course of so doing the motorcycle became unstable, it went on to its side, he was thrown over the handlebars and ended up hitting his head on the top corner of the kerb. ” [Red 23U-24F].

31 That said, the trial judge observed that “this is not a case to be determined by the opinions of experts”. (Red 24G-R).

Was there an oncoming car?

32 The appellant submitted at trial and again on appeal that the respondent’s evidence should not be accepted because, among other reasons, he has given no less than eight different versions of the accident (Red 24S-U). These were summarised by the appellant in these terms.

Version 1

33 The first version was that said to be given some two or three weeks after his admission to the Royal North Shore Hospital to Dr Soden who spoke to him in her capacity as a data collector for the Register of Spinal Cord Injury cases. She spoke to him whilst he was in intensive care. This was within the period within which the plaintiff says he has no memory. Dr Soden asked “What went wrong? Describe how things went to precipitate the entire incident or injury sequence.” The answer she recorded was “Came over a rise and hit rain from stormy weather. Hit debris on the road from previous days rain.” (Red, 24V-25M).

34 The trial judge considered Dr Soden’s evidence unreliable because:

(a) In evidence the plaintiff agreed that there could have been rain on the day before the accident but that there is always debris in the gutter and his motorcycle was nowhere near the gutter;

(b) He considered it highly unlikely that the respondent would use a phrase such as: “forced into extension” (in answer to another question);

(c) Dr Soden was unable to say on what basis she was satisfied that the plaintiff was then conscious and alert;

(d) Dr Soden conceded that the information “can be either the patient’s reporting or a reporting in the notes”;

(e) Dr Soden got the location of the accident wrong, noting it as Mona Vale rather than Newport;

(f) Dr Soden accepted that she had “done [her] best to glean the information that is set [out] in Box 26 from whatever source it was available”;

(g) Ms Goldsworthy (the respondent’s then partner) gave evidence to the effect that at this time the respondent had had a tracheotomy and was unable to speak unless it was capped, but Dr Soden was unable to recall whether it was capped or not (Red, 25N-26R).

35 The trial judge was comfortably satisfied that if Mr Armstead did in fact give Dr Soden this information (as to which he had some doubt) then it was the consequence of his befuddled state of mind and cannot be relied upon as an expression of an accurate factual account (Red, 26S-V).

36 I consider that it was well open for the trial judge to reach the conclusion he did regarding Dr Soden’s evidence. It is particularly telling that such evidence as there was, was against there being any debris on the road. There was the evidence from the police, Mr Fowler (who made a close inspection of the scene the morning after the accident) and Ms Goldsworthy. None of them found any debris. Nor had it rained for 24 hours before.

Version 2

37 The second version was that the respondent had no recall of the events of the accident while he was in Royal North Shore Hospital from 9 March to 29 May 2000, a period of 11 weeks. His evidence was that he was not able to recall the events concerning the accident until he was an inpatient in the Moorong Rehabilitation Centre to which he was admitted on 29 May. This evidence was corroborated by the evidence of Ms Goldsworthy (Red, 26W-27Y).

38 The trial judge did not accept the appellant’s submissions that the gradual onset of memory of the events of the accident was highly improbable (Red, 28B-E). That contention, if not formally abandoned, received scant attention in the appellant’s argument on appeal. Again I consider that the trial judge’s conclusion was well open to him.

Version 3

39 The third version is contained in the respondent’s Personal Injury Claim Form (Exhibit 1), signed by Ms Goldsworthy on behalf of the respondent. It reads so far as is relevant:

“Heading north along The Crescent. As I came up the hill and began to lean into the curve, I saw a set of headlights on my side of the road. I attempted to pick the bike up out of the left and swerve right around the vehicle. The bike slid on the right-hand side and I hit the gutter with my head.” [Red 28F-J].

40 In evidence the plaintiff said that the last sentence was based on something he had been told. The first part he remembered (Red 28K-L).

41 The trial judge found that the sketch forming part of the claim form showed a reasonable representation of what happened although not necessarily in the correct position on the roadway. The trial judge said it was “certainly not inconsistent with the evidence which the plaintiff gave in Court” (Red, 28M-Q). I agree.

Version 4

42 The fourth version is contained in the statement given by the respondent to Senior Constable Pringle on 14 October 2000 (Exhibit 2). The relevant part reads:

“I turned left into The Crescent from Waterview Road, Mona Vale. I was in third gear as I turned into the street. I drove down the gully and changed up gears. When I hit the bottom of the gully I changed down. The whole street sweeps around to the left and I came to the crest of a little hill that sweeps around the corner. As I rode over the apex I saw a set of lights coming up on the wrong side of the road towards me. They were about 20 metres away from me. I basically hit the brakes, kicked the bike out of the left-hand corner, tried to go right. I went over the top of the handlebars. That’s basically all I remember ... . I was going about 30 kilometres per hour.”

43 The trial judge found that with the exception of the estimate that the lights were about 20 metres away from him, this version was substantially the same as the respondent gave in evidence (Red 28R-29E). Again I agree.

Version 5

44 The fifth version was that given to an insurance investigator on 28 October 2000 (Exhibit 6). The trial judge accepted the respondent’s explanation of the inconsistencies in this version (see Red, 29F-30N). This version is not at issue on appeal.

Versions 6 and 7

45 The sixth version is a report by the respondent’s expert on rehabilitation Dr Buckley of 1 June 2001, which is not at issue on appeal (see Red, 30O-V).

46 The seventh version is a diagram drawn by Ms Goldsworthy on behalf of the respondent. The trial judge found that it was neither consistent nor inconsistent with the respondent’s evidence. This version is not at issue on appeal (Red, 30W-31H).

Version 8

47 The eighth version is the evidence given by the respondent in court. He described the oncoming vehicle as a small vehicle when judged by the height of its headlights and thought, but was not sure, that it was a two-door vehicle. In response to questioning, he went into a lot more detail as to the application of the brakes and the gearing down of his vehicle and trying to swing to the left than he did in any of the previous versions (Red, 31I-O).

48 The trial judge concluded that

“the [plaintiff] has given a consistent version of the accident involving his coming around the corner, being confronted by oncoming headlights blinding him on his side of the road and, as a result, having to take emergency action to get out of its way. This has been consistent from as early as 22 June 2000. This consistency in my view tends to render his version of how the accident occurred and in particular the presence of an oncoming car on his side of the road, all the more probable.” [Red 31P-U].

49 Again I would agree with those observations.

The Trial Judge’s Consideration of the Appellant’s Submissions.

50 The trial judge did not accept the appellant’s submission that if the respondent was travelling at only 30 – 35 kilometres per hour and if that speed was reduced by heavy braking and gearing down, the bike should have virtually come to a halt and would be unlikely to continue such a long distance to the north striking the eastern kerb, scraping along the road and causing such serious damage to the plaintiff’s helmet and neck. He did so on the following basis:

(a) There is no evidence that the bike struck the kerb prior to the respondent falling off;

(b) The distance between the point at which the plaintiff started his right-hand turn and where he came to rest was on the probabilities less than 25 metres; and

(c) Mr Armstead’s helmet came into collision with the top corner of the cement kerb where the vertical section meets the horizontal section. In other words there was a very narrow area which exerted force on the plaintiff’s helmet, yet none of the calculations given by the experts appear to have taken this into account (Red, 32D-L).

51 I agree that it was well open to the trial judge so to conclude.

52 Mr Armstead gave evidence that he was not aware of the oncoming vehicle passing him, but the trial judge did not regard this as tending to establish that there was no such oncoming vehicle. This was in view of the fact that his attention was concentrated on getting the motorcycle out of the way and that he was blinded by the oncoming lights (Red, 32Q-S).

53 The evidence of Mr Morgan (who was with Mr Fowler but a little behind him) and Mr Fowler was to the effect that they neither heard nor saw any southbound vehicle before the sound of Mr Armstead’s motorcycle falling on the roadway. But it must be viewed in the light that the other vehicle was a small vehicle and that these men were then some 50 plus metres away from the roadway. Moreover, there were at that time a large number of trees around them which would have the effect of deadening sound coming from the roadway (Red, 32U-33C).

54 The evidence was that Mr Fowler had limited vision from the top of the driveway to No. 47, some 90 metres or more to the northeast of the subject curve (Blue, 524-526). Mr Fowler could see “a bit of the road and the telegraph pole” (Black, 440.15). That pole was situated on the footpath at the western side of the Crescent Road and South of Cecil Road (Blue, 604). Mr Fowler indicated that the red light that he saw went upwards and from his left to his right on an upward trajectory maybe 60 degrees from the horizontal and then disappeared (Black, 440.18). He described seeing the light as “a rounded rectangle about three or four inches across” and for about one and one half seconds (Black, 440). Mr Fowler indicated that he had vision through a gap between the house No 45 and foliage next door (Black, 445.45). Mr Fowler conceded that what he could see through the trees were vehicles south of the curve as they approached (ie proceeded north) (Black, 446.48). Mr Fowler indicated in answer to questions posed by the trial judge that from his vantage point he was unable to see the left edge of the intersection as it is obscured by a house. What he was able to see was the right side of the intersection, i.e. the northbound lane not the southbound lane (Black, 447.45). Mr Fowler agreed that a southbound vehicle that had taken the curve would appear from his vantage point to go from his left to his right (Black, 448.15). Mr Fowler indicated that he could see the base of the telegraph pole (on the western side of the curve) and the red light was half a metre from the bottom of the telegraph pole (Black, 450.18). The witness confirmed that his view was of the western side of the curve (Black, 450.30). Mr Fowler identified the telegraph pole at Blue, 2).

55 I agree with the trial judge’s assessment of this evidence. The primary witness was Mr Fowler. A review of his evidence in more detail bears out his limited capacity for vision and in particular bears out that his failure to observe the other vehicle had no significance. I deal below in more detail with the moving red light and its significance, taking into account the expert evidence.

The history of the respondent

56 The trial judge outlined the respondent’s life history and movements on the day of the accident (see Red, 33D-34G). He noted that

(a) He obtained his motorbike licence at 18;

(b) He had ridden a motorbike for about 10 years before the accident;

(c) He was familiar with Crescent Road as he rode his motorbike to work daily;

(d) On his way home on the day of the accident, he stopped at the Strata Hotel at Cremorne where he gave evidence that he drank 5 or 6 schooners of beer. He was at the hotel from approx 6.45pm to 9.45pm and did not believe he was affected by alcohol.

57 The trial judge considered the respondent’s reliability as a witness to be demonstrated by the consistency of his evidence as to how many beers he had consumed (5 or 6 schooners of full strength beer) and the report given by Professor Starmer as to his blood/alcohol level which confirmed the likely accuracy of his estimate of how much he had drunk (Red, 34H-S).

58 This was borne out, in my view, by the fact that, as submitted by the respondent, it was unlikely that Mr Armstead would have had the technical knowledge of the absorption of alcohol to enable him to reconstruct or tailor that evidence of how much he had drunk. He gave similar accurate evidence to the insurance investigator Mr Southall on 24 October 2000 (Blue, 826G). It was open to the trial judge to conclude as he did that this supported his favourable assessment of Mr Armstead as an honest and reliable witness.

59 Indeed the respondent impressed the trial judge as a witness who was doing his very best to tell the truth observing that he gave his evidence in a clear manner. He observed that the respondent under robust cross-examination was prepared to concede matters (including his consumption of alcohol) which may have been against his interests but nonetheless were consistent with his overall version of events (Red, 34T-W).

60 Having seen and heard the respondent and after considering all of the evidence the trial judge was satisfied on the probabilities that his version of an oncoming car with its lights on high beam forcing him to take sudden emergency evasive action was eminently probable and believable. In coming to this conclusion he disregarded Mr Fowler’s evidence of the moving red light [Red 35B-F], though observing that were reliance placed on it, it supported Mr Armstead’s account. This was essentially because, on the evidence, he was satisfied on the probabilities, that “the light he saw was in fact the vehicle described by the plaintiff going up the last part of the hill on its wrong, or western side of the road and then disappearing around the right turn of the corner of Crescent Road” (Red, 41B-D). I turn now to the trial judge’s treatment of the evidence concerning the red light and the further evidence bearing on it referred to in argument on appeal.

The moving red light

61 The trial judge set out the relevant passages of Mr Fowler’s evidence from the transcript (see Red, 35J-39O).

62 Mr Fowler gave evidence that the red light he saw was airborne, but the judge accepted that when the motorbike was turning around it was on the ground sliding downhill and not in the air (Red, 40M-N).

63 Although Mr Fowler maintained that the light he saw belonged to the motorbike and denied that it belonged to a vehicle travelling in the other direction, the trial judge was satisfied on the probabilities that the light that he saw was in fact the other vehicle; see earlier. He concluded that on the probabilities that vehicle would have reached that position at about the same time as Mr Armstead lost control of his motorcycle causing Mr Fowler to hear the sound of the cycle engine at full throttle followed immediately by the sound of the crash (Red, 41B-F).

64 I turn now to the detailed evidence bearing on the red light.

65 I have earlier summarised the effect of Mr Fowler’s evidence concerning the red light, but without reference to the expert evidence. There is however one further piece of evidence given by Mr Fowler, cited by the trial judge which I quote below:

”Q You've told us today that it appeared to be going up and then you lost sight of it?

A Yes. The light went from the left to my right on a steep incline, and because I only saw a red light, and at the other end of the red light should have been a white light, right, which is the head lamp. From the height that I was standing at that was — yeah, they were the estimates that I made with him at the top of the driveway.

Q So you estimated that it was 4 feet because you couldn't see a headlight. Is that right?

A We estimated it was 4 feet from where my line — where I could see the telegraph pole. That road drops down, so that's where we stood at the top there. This is before any telemetry was done. (Black, 449-50)

Q What I want put to you is from your vantage point, if you saw anything, it would have been a light similar to the light that you see here being a tail light of a vehicle disappearing around the corner moving from right to left. Do you understand what I'm saying to you — moving from left to right?

A Level, it's moving — a car going around Crescent Road southbound to Mona Vale, its tail lights actually come into vision and move on the same plane away from you and disappear, whereas what I saw was actually moving up where there is no road there. (Black, 451)

A Are you trying to get at, is it possible that it might have been another vehicle driving away?

HIS HONOUR: Yes.

A That is what you're trying to get at?

Q Yes, you put it precisely; what is your answer to it?

A My answer to that is, no, your Honour.

Q Why?

A The altitude, the sharpness of the small red light that I saw has gone up at this kind of angle, whereas a vehicle going southbound around Crescent Road, while it still goes from my left to right, it is a shorter distance and there is no incline to be had.” (Black, 453)

66 The trial judge stated that to understand Mr Fowler’s evidence it had to be borne in mind that his observations were made from a point of the driveway to No 47 Crescent Road which is substantially higher than the adjacent roadway and approximately level with the crest of the hill at the intersection of Crescent Road and Cecil Road, with trees between that position and the intersection. This meant that the light that Mr Fowler saw was observed “through portholes in the foliage of those trees” and that “his view of the roadway immediately to his left of the driveway was obscured by the house at No 45”; Red, 39 at [115].

67 Importantly too, the trial judge observed that the motorcycle coming towards Mr Fowler would have had its headlight and not its tail light facing him. Over the top of the tail light is a form of cowling which prevents sight of that light from immediately above the motorcycle; see Red, 39 at [116].

68 He alludes to a further difficulty in attributing the light to the motorbike which I quote below:

“117 He said that the light was airborne and had left the ground. For this to have occurred the motorcycle must have either achieved a position where it had somersaulted over its front wheel or was airborne and had turned sideways 90 to 180°. All experts agree that the damage to the motorcycle was not consistent with the bike having somersaulted end-over-end or even side-over-side. At p 348 Mr Stuart-Smith the expert engaged by the defendant was asked:

“Q So it might have been running on its front wheel with its tail up in the air.

A It couldn’t really have been doing that for the tail to have come up in the air. Theoretically that would be possible, but in practice highly unlikely.’”

69 It is convenient at this point to refer to the expert evidence. Mr Moir gave expert evidence on behalf of Geoff Moir & Associates Pty Limited on behalf of the respondent. That evidence bears upon Mr Fowler’s evidence concerning the observability of the red light from Mr Fowler’s position as an observer, his view partially obscured by trees and No 45 next door, and takes into account Mr Fowler’s own evidence of what he saw. I refer in particular to his sight line diagrams at Blue, 44-5 and his explanation thereof at Blue, 460-2.

70 The effect of this evidence concerning the capacity to observe a southbound car tail light is that the tail light would not be visible if the car were in its correct southbound lane, that is on the lefthand side of the road turning into Crescent Road from Cecil Street but might be seen if the vehicle were in its wrong lane turning southbound. This assumes that Mr Fowler is standing as an observer in the place on the driveway that his evidence indicates and takes account of the obstruction from the dwelling at No 45 Crescent Road.

71 The expert, Mr Griffiths comments on this aspect (at Blue, 689). But his commentary does not take matters much further. He infers that Mr Fowler was probably at an elevation of between 8 and 10 metres whilst the vehicle red light he was observing appears to have been at an elevation of 16 to 20 metres, that is 8 to 12 metres above Mr Fowler’s viewing position. He observes that the aerial photograph seemed to indicate that most of the section of the roadway between the intersection of Cecil Road and the driveways to Nos 45 and 47 had potential sightlines to the outside of the residence No 45. He concludes

“However, as it is very difficult to place much interpretation on what Brendan Fowler says he saw the vehicle’s red light, I do not think that his observations of the moving red lights assist the analysis.

What it does indicate, is that it is possible that Brendan Fowler had a view of the vehicle’s red light on the roadway.”

72 To that can be added the observations of Dr Henderson, an expert for the respondent, at Blue, 418-9. He comments critically on the appellant’s expert, Mr Stuart Smith who “places considerable reliance on this statement that Mr Fowler made on 30 August 2000 to the effect that he saw a red light arcing upwards to the right through the air ... about half way between Cecil Street and my driveway”. Dr Henderson states that Mr Stuart Smith “takes for granted that ‘Mr Fowler was witnessing the motorcycle ‘flipping’”. Dr Henderson says ‘however, with the best will in the world, the observations of a surprised witness to a traffic accident in the dark of the night are not always terribly reliable. The question arises as to how much Mr Fowler could actually see”. He then refers to the photographic analysis he did of the scene.

73 The appellant attempted to make something of the following passage of evidence given by Mr Fowler concerning his recollection of pizza deliveries, quoted below:

“Q. At that stage what made you think it was airborne?

A. I have lived there for so long, I knew the telegraph pole, I used to watch for the pizza delivery coming around the corner, I knew where I saw the light it was not touching the ground. That light was airborne. It had left the ground.

GROSS: Q. I appreciate you see the light in its upward arc, not any further arc, but if that arc was continued, where would it take that light?

A. It would have taken that light to just the right of my drive.

Q. In Crescent Road?

A. In Crescent Road.

Q. Apart from that light did you see any other light or lights?

A. A street light on the telegraph pole, that was the only other light. No vehicles.” (Black, 440.39-58)

74 There is a further passage of cross-examination of Mr Fowler (at Black, 446.29-.46):

“Q. You’ve never been able to see. Have you ever made observations before this night looking out to where the intersection would be, that is, the intersection of Cecil and the Crescent Road?

A. Yes, I used to watch – I could see a bit of Cecil which is further over this area here.

Q. You’re indicating somewhere near the second of the trees starting from the left of the photograph 3?

A. You could see a little bit of Cecil through the trees there. That’s where I used to --

Q. Is that Cecil as it proceeds --

HIS HONOUR: Q. The witness was saying something about ‘that’s where I used to’. What was that?

A. That’s where I used to watch my takeaway deliveries come down the road.”

75 Then (at Black, 447) is the following cross-examination of Mr Fowler which contains the important concession that from the position of his observation he can’t see “the far left edge of that intersection [of Crescent Road and Cecil Road] because that’s obscured by a house [No 45] ... what I can see is the right side of that intersection”.

76 This bears out that for a car travelling southward, he could only see a red light on it if it were on the wrong lane, that is to say the right side of the intersection of Crescent Road and Cecil Road.

77 The reference to the pizza truck was, as the respondent explained, not helpful to the appellant’s case. This was because the pizza truck would more likely have come down Cecil Road not to the intersection but continuing to Barenjoey Road, that is to say south-east, rather than south down Crescent Road from the intersection with Cecil Road.

78 Mr Moir’s evidence (Blue, 463) took expressly into account the state of damage of the motorcycle and that no vehicle impact occurred. His evidence was consistent with the hypothesis that the trial judge accepted, namely the only tail light observed by Mr Fowler was not of the motorcycle but of a vehicle travelling along the section of the Crescent lying to the south of the Cecil Road intersection and on its wrong side. Thus to quote Mr Moir:

“(d) since it was not feasible for Mr Armstead’s motorcycle to become elevated in the air without a prior impact, and since it was known that no vehicle impact occurred, and since the damage to the motorcycle was not consistent with it having crashed down onto the road pavement from a height of 1.2 metres while travelling at a speed of 60km/h, and since it has been determined that the motorcycle slid down the hill on its side without continuously spinning around, and since it was determined that the machine rotated partially and only at the times the front fairing was not in heavy contact with the pavement, and since it was known that the tail light would have been fully obscured while the motorcycle was sliding on its side on the eastern side of the road, then it was not possible that the tail light of Mr Armstead’s motorcycle had been viewable during any part of the motorcycle’s motion around the bend and down the hill,

(e) since the motor cycle crash took place on the southbound side of the road which was in a continuous blind zone behind the house at No. 45 and its adjacent trees and fences the trajectory of the motorcycle would not have been viewable from the ROP [reference observation point] whether from the light of its tail light or its headlight.

It also followed that:

(a) any sighting of a tail light by Mr Fowler on the night of the accident must have been of a tail light on a vehicle travelling along the section of The Crescent lying to the south of the Cecil Road intersection.

(b) it was not feasible that the tail light seen by Mr Fowler had been the tail light of Mr Armstead’s motorcycle.”

79 I would conclude that the trial judge was entitled to come to the view that a motorcycle would be unlikely to be travelling with its rear light facing towards or exposed to Mr Fowler. That his evidence was that the light he saw was rising upwards and moving from left to right is significant, because that is the precise course that a vehicle would take, travelling in a southerly direction in the western lane of Crescent Road as it climbed the last of the hill close to the telegraph pole and then turned right around the curve, as the trial judge found. I would agree with the submission of the respondent that “the court had the benefit of a view and was entitled on the basis of the evidence of Fowler and the objective evidence of damage to the motorcycle to come to the conclusion that it did.” (Orange, 79)

The multiple versions – reliance by the trial judge on their consistency as rendering the respondent’s version of how the accident occurred all the more probable.

80 The appellant sought to rely upon the trial judge concluding, contrary to the submissions of the appellant, that not only had the respondent given a consistent version of the accident from as early as 22 June 2000 but that consistency “tends to render his version of how the accident occurred and in particular the presence of an on-coming car on his side of the road, all the more probable”.

81 What the appellant in effect sought to do was to attack the eight versions as inconsistent. Then having failed in that attack, the appellant sought to rely on a ground of appeal to the effect that the trial judge incorrectly treated the repetition of prior consistent self-serving statements by the respondent as probative evidence in the respondent’s favour of the truth of those statements.

82 The appellant in particular relied upon the following observations of Windeyer J in Lopes v Taylor (1970) 44 ALJR 412 at 418:

“His statements out of court of what happened are evidence against him. But it is a mistake to treat them as if they were evidence given in court and use them, or any part of them, as the foundation of the finding in his favour of an issue, the alleged contributory negligence of the respondent, the onus of which was upon him.”

83 However, it is important to appreciate that Lopes v Taylor was decided in a very different context. Moreover, it pre-dated the Evidence Act and in particular s60 thereof to which I refer below.

84 In Lopes, the statements in question were clearly self-serving. They had been given in statements to the police by the defendant, and then put into evidence by the plaintiff. They were however sought to be relied upon by the defendant, in order to prove contributory negligence on the part of the plaintiff, where the defendant had the onus of proof. Clearly in those circumstances they had little if any foundation or weight.

85 In the present case, the appellant had introduced the evidence of Dr Soden in relation to version 1, as also the personal injury claim form in relation to version 3, the police interview in relation to version 4, the interview given to an AAMI investigator in relation to version 5, Ms Goldsworthy’s sketch and material in relation to version 7. Mr Armstead had at trial given the sworn evidence said to constitute version 8.

86 When one puts aside version 1, based as it was on the evidence of Dr Soden which should have no weight for the reasons earlier stated, there is no inconsistency between the various versions. They were properly to be compared to Mr Armstead’s sworn evidence at trial. Moreover, s60 of the Evidence Act provides that “the hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation”. Here, the appellant had introduced the relevant evidence as going to the credibility of Mr Armstead so that it was thereafter available as admissible evidence for all purposes, by force of s60.

87 The joint judgment of Gleeson CJ, McHugh, Kirby and Hayne JJ in Adams v The Queen [2001] HCA 57; (2001) 207 CLR 96 at 108-9 [36-7] makes clear the effect of the Evidence Act on the earlier position regarding prior inconsistent statements, or statements alleged to be:

“Reading the section [s102] according to its terms gives no absurd or, as the appellant contended, bizarre result. The example given by the appellant in aid of this contention was of a witness’s prior inconsistent statements, relevant as bearing upon facts in issue in the proceeding other than the credibility of the witness, which would be inadmissible as evidence of the truth of its contents by operation of s59, as hearsay. This, so the argument proceeded, would not be caught by s102 and would, therefore, be admitted as evidence of the truth of its contents by s60. That is, not being evidence relevant only to the witness’s credibility, s102 would have no operation. Because, however, the evidence would be relevant both for the purpose of considering the witness’s credibility and proof of the facts which the witness had intended to assert in the out of court statements, the hearsay rule would not apply (s60).

The operation of the Act on the appellant’s example is correctly stated but the result that is obtained is not, as the appellant contended, odd or unexpected. It is true, of course, that the result differs from what would be the result at common law, the difference being that, by s60 of the Act, the prior statements would be admitted as evidence of the truth of their contents. But that difference brought about by s60 was one of the significant alterations in the rules of evidence that the Act was intended to effect. No longer were tribunals of fact to be asked to treat evidence of prior inconsistent statements as evidence that showed no more than that the witness may not be reliable. The prior inconsistent statements were to be taken as evidence of their truth. Thus far from the result being, as the appellant asserted, bizarre or unintended, it is the intended operation of the Act.(29)”

(29) Australian Law Reform Commission, Evidence, Report No 38 (1987), p79 [144]; see also Australian Law Reform Commission, Evidence, Interim Report No 26 (1985), vol 1, pp 170-173 [334], pp 375-376 [685].

88 That of course still leaves the question of the weight to be given to that evidence. Here the appellant contended that no weight should be given, conceding though that the statements would be admissible. This was said to be because this evidence could not be relevant as it was incapable of rationally affecting the assessment of the probability of the matters to which it was directed, namely the respondent’s account of how the accident occurred.

89 However, I consider that it was open to the trial judge to find in the various versions (once one put aside, as he did, Dr Soden’s version) a degree of consistency which, when tested in cross-examination, was capable of rendering the more probable the respondent’s version of how the accident occurred.

Contributory Negligence

90 The trial judge rejected the appellant’s contention at trial that the speed of the respondent’s motorbike was excessive for the curve and that this was a contributing factor to the occurrence of the accident. The evidence on this was essentially credibility based. Nothing put by the appellant in argument on appeal pointed to any appellable error in the trial judge’s acceptance that the speed of Mr Armstead was not excessive.

91 The second basis for attributing contributory negligence was said to be the natural presumption that the respondent’s “intoxication” would have had some affect on his driving and riding skills, so justifying a conclusion that to some extent his intoxication contributed to the occurrence of the accident.

92 It was common ground that s138 of the Motor Accidents Compensation Act could have no application. This is because Mr Armstead was not convicted of an alcohol or other drug related offence in relation to the relevant motor accident, though the appellant tried to argue, albeit faintly, that it somehow applied by analogy. It does not.

93 The evidence was that a blood sample was taken when the respondent was admitted to Royal North Shore Hospital at about midnight on 9 March 2000. A reading of that sample revealed a blood alcohol level of 0.064. The Police report goes on to say that it had been decided that the Police would exercise their discretionary power in not taking action against the plaintiff for low PCA due to the serious and permanent nature of his injuries (Red, 41U-42C).

94 Professor Starmer was of the opinion that the respondent’s most likely blood alcohol concentration at the time of the accident would have been about 0.084g/100ml. Professor Starmer was of the opinion that facets of rider control can be greatly impaired by a blood alcohol concentrations even below 0.064. He also said that reduction in glare resistance might have been a causal factor in the accident and that the alcohol dose of 0.7g/kg reduced glare resistance in some subjects (Red, 43B-R) [emphasis added].

95 The trial judge emphasised that the respondent was wearing a full head visor and the effects of the glare through the eye glass on the inside of his helmet would have aggravated the effects of the oncoming light (Red, 44B-C).

96 The trial judge was satisfied that an alcohol-free driver or rider would not have recovered full vision in the three seconds it would have taken the respondent to hit the kerb after seeing the lights, particularly having regard to the fact that Mr Armstead was engaged in trying to control his motorcycle whilst escaping from the path of the oncoming car (Red, 44H-J).

97 That evidence satisfied the trial judge that the respondent did act appropriately in the circumstances and that he manoeuvred appropriately in the circumstances. He concluded that with or without the effects of alcohol a fall from the bike was highly likely to occur. The essential cause of the gravity of Mr Armstead’s injuries was that he was unfortunate enough to suffer a collision between the area of his forehead and the top corner of the cement kerb (Red, 44L-O).

98 The trial judge clearly appreciated that in most cases one would find that a blood alcohol level of 0.084g/100ml would be a fault on the part of the plaintiff which contributed to the plaintiff’s share of the responsibility for his damage. But the trial judge did properly have regard to the provisions of s9(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1965. There the task is to reduce the damages to such extent that the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage (Red, 44R-Y).

99 In this particular case the situation which the unidentified vehicle created was of such a nature that the trial judge was satisfied (regardless of whether the onus be upon the appellant or respondent) that the respondent’s consumption of alcohol in no way contributed to the damage which he suffered (Red, 45B-E).

Conclusion

100 I consider that the conclusion reached by the trial judge was well open to him on the evidence and discloses no appellable error.

Damages

101 I turn now to the two remaining grounds of appeal, relating in each case to damages. The first of these concerns future care requirements.

102 The trial judge held that the respondent must be regarded as a person who is more disabled than the description set out in the MAA guidelines for a C6 affected quadriplegic (the description of a C6 quadriplegic includes greater use of arms than the respondent has, for example ability to drive a modified car). This was eventually conceded by the appellant at trial (Red, 65B-O).

103 The trial judge was satisfied that the respondent not only suffers complete quadriplegia at level C6 but also a brachial plexus injury and some diminution in his memory and cognitive powers. He has virtually no use of the right arm and very limited use of the left arm. After surgery he is left with a pincer grip between his fingers and thumb. His capacities are very small and he has numerous difficulties associated with falls from his wheelchair, dropping of medication and foods, inability to control his body temperature and the sequelae of autonomic dysreflexia (Red 66O-T).

104 The trial judge was therefore satisfied on the probabilities that full-time care was required (Red, 66U-V).

105 The trial judge was satisfied that the administrative obligations involved in employing a carer directly (rather than through an agency), such as calculating tax, super and paying insurance premiums, are beyond the capacity of the respondent. He would then have to engage a person to look after these matters for him (Red, 67F-T). The trial judge appeared to find that the respondent was entitled to use an agency, which would look after these administrative matters with the costs included within the margin charged by the agency (Red, 67U-W).

106 Both sides agreed that care would best be provided by way of rotating shifts, rather than a live-in carer (Red, 67X-68C).

107 The trial judge found that someone with the skill of an Assistant in Nursing is required, who can attend to domestic services as well as basic nursing (Red, 68D-R).

108 The trial judge concluded that the respondent is entitled to a reasonable service and a reasonable service would include a cost based upon the average hourly rate among the four quotes rather than upon the minimum (Red, 68S-69C).

109 The trial judge considered it appropriate for the sake of occupational health and safety that a second person be engaged to assist the carer during time of heavy lifting in the morning and evening (three hours a day) (Red, 69I-L).

110 After making all the calculations, the trial judge awarded damages under this head of $4,078,076.48 (Red, 69M-70D).

111 It is against that background that the appellant’s challenge falls to be considered.

112 Essentially what is contended is that the trial judge erred in that he ought to have discounted his allowance for future care to reflect what was said to be the real possibility that the respondent would achieve cost savings at some stage or stages during his remaining life expectancy by

(a) having a house couple rather than rotating carers,

(b) contracting direct with some of these carers at some stages, and

(c) reducing the hours provided by carers to those more closely approximating the MAA Guidelines.

113 It was also said that some reduction in the allowance for care should have been made to accommodate the possibility that some care might be provided voluntarily by family members.

114 The respondent suffered complete quadriplegia at level C6 and brachial plexus injury involving the right arm. Dr Stephen Buckley, a specialist in rehabilitation medicine expressed the view “that he would require a personal assistant to aid him in his daily living and care 24 hours a day, 7 days a week” (Blue, 47P). That opinion was expressed in August 2001. Dr Buckley continued to advocate 24 hour care when reviewing the respondent in September 2004 (Blue, 63U).

115 Dianne Croker, an occupational therapist, notes the requirement for 24 hour care (Blue, 295D). She then specifically considered the appropriate means of delivering the prescription of full-time care suggested by Dr Buckley (Blue, 300K) stating that the most effective means of providing such care was by way of rotating shifts.

116 In her evidence Ms Croker confirmed her view that care ought to be provided by rotating shifts (Black, 313.20). She was cross-examined and remained unwavering in her view that the respondent required 24 hour care. She continued to maintain the view that care ought to be provided by way of shifts of carers (Black, 334.55).

117 Dr Jones, an expert for the appellant, took the view that the respondent could manage on something less than 24 hour care but conceded that care at that level is not provided by one person but rather rotating shifts (Black, 537.50).

118 The trial judge was thus confronted with differing views as to the level of care and had additional evidence from the respondent and Ms Goldsworthy as to Mr Armstead’s disabilities and reached a judgment as to what level of care was needed after weighing up that evidence. He gave some weight to the fact that Mr Armstead has little use of his right arm, and limited use of his left arm giving him but a rudimentary pincer group from his left arm and as to his significant on-going physical difficulties.

Conclusion

119 I agree with the respondent’s contention that the trial judge was entitled to conclude that full-time care was appropriate, and was entitled on the evidence to conclude that rotating shifts was the appropriate means of delivering that care. I also agree that the Motor Accident Guidelines are not to be treated as in any way mandatory but merely as providing assistance in assessing current and future needs (Blue, 850J). They recognise that what is “reasonable and necessary” varies from person to person. The Guidelines do not therefore warrant a different outcome in the present case. Moreover, even in terms of the Guidelines Ms Croker gave the opinion that the respondent best fitted the description of a C5 quadriplegic not a C6 as indicated by Ms Piebenga.

120 I should add that there was no basis for any contention that there was a failure to discount this head for future contingencies as relevant life tables already provided the appropriate discount for mortality. Nor was there any basis for reducing this care based on proposed savings from use of a house couple when Ms Croker’s evidence was that the appropriate way to deliver care was by rotating shifts of carers. This ground of appeal on damages must fail.

Computer needs/costs

Mathematical Errors

121 The appellant and respondent agreed that Cooper AJ made two mathematical errors in his judgment. The table drawn up by the judge (at Red, 82) is in error with regard to the items “Trackball Mouse” (Red, 82F) and “Training” (Red, 82G).

122 The cost of the Trackball Mouse is $242, not $639. The cost per annum is therefore $60.50.

123 The Training is properly a capital item and not one of a recurring nature.

124 After making these adjustments, the total cost per annum in the Table is $2,988, not $3,162.63. Capitalised at 5% over 26 years, the sum is $44,170.68.

125 To that must be added the capital cost of Training of $1,960, producing a total of $46,130.68, not $46,590.90.

126 The result is a net reduction in the award of $460.22 which the respondent submits is, in the context of this case, de minimis. That submission would clearly be correct, were there no other significant reductions; I shall return to that under “Disputed Items” below.

Items conceded by the appellant

127 The appellant accepts the respondent’s claim as allowed by the trial judge for Training, at a one-off capital cost of $1960.

128 The appellant also accepts the respondent’s claim as allowed by the trial judge in respect of recurring computer-related expenses for the following items:

(a) CD stacker - $430.25 pa

(b) SCSI card - $ 33.00 pa

(c) Microphone - $159.75 pa

(d) Trackball Mouse - $ 60.50 pa

(e) Special software - $180.00 pa

(f) Copyholder, disk boxes - $ 23.00 pa

Total: $886.50 pa

129 Capitalised at 5% over 26 years, the subtotal for these items is $13,111, to be added to the one-off capital costs of Training at $1960. The total is therefore $15,071. The appellant submitted that this was all that should be allowed for computer needs (as against just over $46,000).

Disputed Items

130 The appellant disputes the trial judge’s allowance of several computer items, primarily on the grounds that the judge failed to deduct the cost of equipment which, it argues, the respondent would have purchased and used even if he were uninjured. These items are:

(a) home computer

(b) printer and scanner

(c) anti-virus program

(d) adjustable height desk

(e) telephone technical support and warranty

(f) internet costs

(g) consumables.

Evidence of the respondent’s computer use

131 There was evidence, discussed below, as to the respondent’s computer usage prior to the accident and the extent to which and manner in which he was likely to use a computer in his injured state. However, there was no evidence before the trial judge as to the nature, extent or cost of future computer equipment or usage, if the respondent had remained uninjured.

Mr Armstead’s evidence

132 The respondent gave evidence that prior to the accident he did not have his own computer at home because he did not need one. He did not need one because he had computers at work and paid everything by cash. The respondent also gave evidence that when he was living with his partner and their three children (one of his and two of hers) prior to the accident, there was one computer in the house that everyone used. He agreed that even if he had not been involved in the accident he probably would have acquired his own computer (Black 1, 86]. Nonetheless he had not seen the need to do so.

Expert evidence

133 The evidence of Ms Croker, Mr Smith and Ms Piebenga was that the respondent had some experience using computers, having used a computer at work for programming machinery, but that his skills were limited (Blue 2, 286; Blue 2, 356). Ms Piebenga’s report stated that the respondent did not really enjoy using the computer and was very slow (Blue 4, 917). To Ms Croker he expressed a strong desire to explore options in hardware and software (Blue 2, 286).

134 Dr Buckley and Mr Smith both recommended that the respondent be provided with computing facilities in order to enhance his ability to communicate and to access information (Blue 1, 50; Blue 2, 358-360). Mr Smith was of the opinion that computer facilities were now a necessity for the respondent. The respondent would now require a computer for communication (writing emails and letters to family and friends), informing himself (accessing online newspapers and information about his disability), organising his finances (paying bills and banking online), creative activities and recreation. It would generally enhance his independence (Blue 2, 358-360). Both Mr Smith and Ms Piebenga recommended that the respondent have his own computer, with specifications suited to his circumstances, rather than share a computer with his partner and their children, as he was doing at the time of assessment (Blue 2, 362; Blue 4, 917-918). (He had in fact separated from his partner since, and gone to live near his parents.)

Injury-Created Need

135 The issue is whether the cost of a computer and computer-related equipment is an injury-created need for the respondent, that is, whether it has become a necessity as a result of his injury, or whether the respondent would have purchased a computer and related equipment even if he had not suffered the injury, such that it cannot be said that the injury created his need for a computer.

136 In Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, the High Court rejected the view that no need is created for domestic services which the plaintiff was already receiving before being injured; that is to say, services which in all probability would have continued to be provided if there had been no injury, so that damages should be limited to additional services that are now needed. Mason CJ, Toohey and McHugh JJ said [at 333]:

“[T]he true basis of a Griffiths v Kerkemeyer claim is the need of the plaintiff for those services provided for him or her and... the plaintiff does not have to show... that the need ‘is or may be productive of financial loss’.”

137 They continued [at 338]:

“If the defendant has created the need for the services, that person is not entitled to have the damages reduced because, before the accident, the plaintiff elected to pay for similar services or had the benefit of having them performed gratuitously. By the tort, the defendant has transformed the choice of the plaintiff to pay for such services or to have them done voluntarily into the need for the plaintiff to have those services performed for him or her.”

The Analogy of Motor Vehicle Costs

138 On the other hand, in relation to motor vehicles, it has been held that since most people today would in any event incur the capital cost and running expenses associated with owning a car, the plaintiff should be entitled only to the increased cost due to the injuries, for example, the additional cost of a specially adapted car; see Cull v Judd [1980] WAR 161 at 170-71; Campbell v Nangle (1985) 40 SASR 161 (FC) at 190 per King CJ; Moriarty v McCarthy [1978] 2 All ER 213; Luntz, Assessment of Damages for Personal Injury and Death, 4th ed, 2002, at [4.1.5].

139 For example, in GIO of NSW v Mackie (1990) Aust Torts Reps 81-053 at 68,213-14, the NSW Court of Appeal considered this question. Clarke JA said:

“Senior Counsel for the respondent submitted that his Honour should have allowed the claim based on the total cost of the acquisition and running expenses of the Toyota upon the basis that whilst the respondent may have purchased a car if uninjured the Toyota was now a necessity (Jackson v Jackson, [1972] 2 NSWR 454, at 460).

I do not agree. It is highly probable that the respondent, if uninjured, would have purchased a car for herself from time to time out of her earnings. The only accident caused need, it seems to me, was the acquisition of a particular type of vehicle basically suited to, and modified to take account of, the respondent's condition. Accordingly, his Honour was correct to allow only the differential.”

140 But is ownership of a car in a different category from ownership of a computer? Computer ownership is not as ubiquitous as car ownership. The evidence of Mr Smith was that over 50% of households now have a computer, but that “computer ownership and activity are not evenly distributed in the community. They are concentrated among those on high incomes, those with high levels of education and those who are employed” (Blue 2, 362). Mr Armstead after his injury, was neither likely to have a high income nor any assurance of employment, and his computer skills were at best those of an occasional user who had felt no immediate need to buy his own. And as a general proposition, it cannot yet be automatically assumed that a plaintiff would have purchased a computer had he or she remained uninjured, in the same way that it might be assumed that he or she would buy a car.

Computer costs as allowed in other cases

141 In Marsland v Andjelic (1993) 31 NSWLR 162, the Court of Appeal allowed the whole cost of a computer system. Kirby P and Meagher JA held (at 178-179) that while there was evidence that the plaintiff was using his present computer thus far only for recreational purposes, the Master ought to have had regard to the possibilities which would present themselves in the future. They took into account the fact that the accident had gravely limited the plaintiff’s ability to communicate, his speech being slow and slurred and his handwriting difficult to read, and rejected the argument that the plaintiff would be able to communicate adequately through his full-time carer. They emphasised that “the right to independent and free communication is a most fundamental right”.

142 In Chan v Mills (1995) 22 MVR 391, the plaintiff was rendered a C2 quadriplegic by a motor vehicle accident. He was unable to talk, or even to breathe unassisted. However, he learnt to operate a computer through the use of his tongue, breath and by blinking his eyelids. In so doing, he was able to write letters and use the Internet to communicate with relatives overseas. Steytler J had no difficulty allowing the costs of the computer, related equipment, software, training, maintenance and repair, because it was plain that a computer was “an essential means of communication” for the plaintiff.

143 Can one properly distinguish Marsland and Chan on the basis that in those two cases the plaintiffs’ ability to communicate was debilitated to a greater extent than in the present case? It is true that Mr Armstead can talk and use a telephone. While he thus has other means by which he can communicate, this is not to write. Moreover, it appears to have been sufficient to award the costs of a computer in Pettersen v Bacha (1995) 21 MVR 71 that a computer would be necessary to provide a social and education “lifeline” for the plaintiff. So I consider it should be here. The plaintiff in Pettersen was rendered an incomplete quadriplegic and suffered brain damage as a result of a motor vehicle accident, and the extent to which that plaintiff’s injuries impaired his ability to communicate is unclear from the judgments. Here it is significant that Mr Armstead could not communicate by writing, so for that vital mode of communication a computer is now likewise essential.

Conclusion

144 It is clear that the injury suffered by the respondent in this case has created the clear necessity for a computer system, in order to facilitate written communication and as an essential life-line to the outside world as well as part of his rehabilitation.

145 Had the respondent not been injured, his use or ownership of a computer would have remained a matter of choice. Moreover it may well not have been chosen for other than recreational use, given that he had a computer at work.

146 I would, in all the circumstances, accept that the respondent should not suffer any reduction in his damages based on the probability that he would have come round to buying a computer, uninjured; the computer is now a clear necessity.

OVERALL CONCLUSION AND ORDERS

147 In my opinion this appeal should fail, as also the challenge to the damages verdict, save as to a de minimis agreed reduction ($460.22) for the respondent’s computer. Accordingly, I propose orders as follows:

(1) Appeal disallowed, save that damages are reduced by $460.22.

(2) Appellant to pay the respondent’s costs of the appeal.

148 McCOLL JA: I agree with Santow JA.

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LAST UPDATED: 06/12/2005