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  • Unreported Judgment

Bailey v Nominal Defendant

 

[2003] QSC 433

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Bailey v  Nominal Defendant [2003] QSC 433

PARTIES:

PETER JOHN BAILEY

(Plaintiff)

v

NOMINAL DEFENDANT

(Defendant) 

FILE NO/S:

S.969 of 1999

DIVISION:

Trial

PROCEEDING:

Application  for damages

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

19 December 2003

DELIVERED AT:

Townsville

HEARING DATE:

8-10 December 2003

JUDGES:

Cullinane J

ORDER:

I give judgment for the plaintiff against the defendant in the sum of $523,481.65.

CATCHWORDS:

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – APPORTIONMENT OF DAMAGES – where plaintiff suffered injuries when his vehicle was involved in accident – where plaintiff was only witness to accident – whether plaintiff’s uncorroborated account is to be accepted

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – APPORTIONMENT OF DAMAGES – where plaintiff suffered physical injuries in accident and subsequently suffered psychiatric injuries – where plaintiff’s use of illicit drugs may have contributed to his psychiatric condition – whether subsequent injuries flowed from the accident – whether tortfeasor is liable in damages for losses which flowed from psychiatric condition

COUNSEL:

J Griffin QC, with him P Lafferty, for the plaintiff

K Wilson SC for the defendant

SOLICITORS:

Roati and Firth for the plaintiff

Walsh Halligan Douglas for the defendant

  1. The plaintiff sues the Nominal Defendant for damages for personal injury sustained by him when a Ford Falcon sedan then being driven by him in an easterly direction along the Sunshine Motorway near Buderim left the roadway and overturned.
  1. It is accepted that the requirements as to due search and notice have been satisfied.
  1. The incident occurred just before 1 a.m. on 26th September 1997.  The plaintiff was alone in his vehicle.
  1. The plaintiff who was born on 6th December 1978 was, at the time, a member of the army and was in the process of returning after a period of leave to Lavarack Barracks, Townsville where he was based.
  1. He is currently in receipt of a disability support pension.
  1. It is the plaintiff’s case that as he was driving in an easterly direction at about 100 kilometres per hour and as he came to a gentle left hand curve in the roadway, he was faced with a semi trailer on, or substantially on, his side of the roadway. He swerved to avoid it, losing control as he did so. His description of the vehicle was of a “truck trailer”, giving the example of a Woolworths prime mover with refrigerated enclosed trailers. He had been aware of the lights of an approaching vehicle.
  1. There are photographs taken by a police officer, Constable Church, on the evening of the accident, an aerial photograph of the area and a brief sketch drawn by the plaintiff.
  1. The plaintiff initially gave evidence that he thought the vehicle was about 50 metres from him when he saw its lights and that it was on his side of the road. Subsequently he estimated that it would have been at about 100 metres that he realised it was on the incorrect side of the roadway.
  1. Constable Church saw, on the evening of the accident, some marks on the western bound side of the roadway which he says appeared to have been left by the plaintiff’s vehicle moving at the time out of control in a yawing fashion. Some small lights were placed on these and they appear in the photographs. Constable Church gave evidence that the marks were at a point about 55 metres to the east of the intersection or conjunction of Military Road, a dirt road which is shown in the aerial photograph, and the Sunshine Motorway.
  1. It would seem from this evidence and the photographs that the plaintiff’s vehicle left the roadway at about the start of or a short distance into the curve. The curve is, as I have said, a gentle one and this appears in the aerial photograph.
  1. A sample of the plaintiff’s blood was taken approximately two hours after the accident and this shows a reading of .045.
  1. Although there is no convincing evidence that the plaintiff sustained a head injury, he says that he has a period of loss of memory after the accident. Professor James, a psychiatrist who was called, thought that this might be the result of the analgesic medication which he was given.
  1. The plaintiff is a person who suffers from psychiatric problems which I will deal with a little later. He is said by Dr Chalk, a psychiatrist who examined him on behalf of the defendant and who was called by the plaintiff, to be suffering from an adjustment disorder. This is also the view of Mr Zemaitis, a psychologist, who says that he has an adjustment disorder with depression. Professor James, who saw him in mid 1992 thought he was suffering from, amongst other things, a post traumatic stress disorder. Professor James thought that the condition he diagnosed was similar to that referred to by the other experts.
  1. The plaintiff has suffered from more severe psychiatric problems following the accident than he suffers from now. Professor James thinks that he presently suffers from some degree of dysfunction as a result of his abuse of illicit drugs. This is, in his view, the explanation of some bizarre claims made by the plaintiff as to his occupation and also some odd behaviour and statements generally. His capacity to recall events should not be significantly impaired according to Professor James, although the post traumatic stress disorder he suffers from may affect his capacity for good chronology.
  1. The plaintiff gave his evidence in a somewhat flat and detached manner.
  1. Immediately following the accident the plaintiff gave an account to the ambulance officer who attended him. It was accepted that this was evidence of the facts contained in it. He said that he had to swerve to avoid an oncoming truck.
  1. In a case of this kind, where a plaintiff asserts that an unidentified vehicle was the cause of the accident and there is no other evidence apart from the plaintiff’s account, it is necessary that his evidence be scrutinized with particular care.
  1. The Nominal Defendant in this case placed some emphasis upon what was said to be discrepancies between aspects of the plaintiff’s account to the court and to others. Reliance was placed upon an interview with Constable Church on 29th September whilst the plaintiff was in hospital.  The record of this interview was tendered (Exhibit 21).  In the course of the interview the following exchange is recorded:

“CHURCH:  Can you tell me what you believe caused the accident?

BAILEY:  I was just about to go around a corner and I didn’t see the truck at, when I got around the bend I saw the truck over the white line and I saw him swerve back into his lane as I swerved out to my left.  I got into the gravel and the car has gone across the road and I don’t know what had happened as I must went into shock as it was going off the edge of the road, it must have flipped as I remember crawling out of it and remember seeing it on its side when I got out of it.”

  1. A couple of questions later the following exchange appears:

“CHURCH:  Do you recall anything else relating to the incident?

BAILEY:  Um, just trying to think, I just don’t know who was first there.”

  1. Reliance was placed upon the reference to the plaintiff having come around the bend when he saw the truck over the white line. The plaintiff agrees that this is not what occurred and is not what he told the court.
  1. It is not clear what the reference to not knowing who was first there relates to. It is possible that it was a reference to which of the two vehicles first came to the corner, in which case it may be a qualification of what he had earlier said. On the other hand, it may refer to who was first upon the scene after the accident.
  1. Reliance was also placed upon what is said to be differing accounts of the vehicle which the plaintiff says he had to swerve to avoid. According to Dr Graham, the plaintiff told him that he “swerved across the road to avoid a prominent trailer being towed behind a truck”.
  1. According to Dr Giles, a chiropractor, the plaintiff told him that “he swerved his sedan to miss a wide trailer being towed behind a truck”.
  1. The plaintiff says that he does not recall saying these things to the doctors concerned.
  1. Having heard him give evidence, I have considerable reservations as to whether he is likely to have used the term “a prominent trailer being towed behind a truck”.
  1. If it is accepted that the accounts given in the various medical reports of what occurred came from the plaintiff directly, then as will be seen, he used a number of different terms to describe the vehicle. To Dr MacFarlane he said he “swerved to miss a trailer and rolled his car”. To Mrs Coles he said that he was “going around a corner when a truck coming from the opposite direction came over the double line”. To Professor James he spoke of “a truck coming in the opposite direction occupying the centre portion of the road”. Dr Nave has him stating that he “swerved to avoid a truck” whilst Dr Chalk says that the plaintiff “remembers swerving to avoid a semi trailer”.
  1. Ultimately the primary issue of liability depends upon my assessment of the plaintiff and of his evidence.
  1. I was left with the clear impression, having seen and heard him, that he was giving a truthful account when he described what occurred.
  1. I am not persuaded that the passage in the record of interview on which reliance is placed should lead to a different conclusion. For one thing, it appears to me that it may, when the whole of the record of interview is looked at, be equivocal but in any case I do not think that his reference to having come around the bend warrants the rejection of his evidence to the court. It is a somewhat vague term which may mean that he had fully traversed the curve or it may mean something less than that.
  1. Similarly the various references to the other vehicle involved do not lead me to doubt the plaintiff’s account. I have reservations as to whether what he is recorded as having said to Dr Clark and Dr Giles should be taken as a precise description of what he said. No doubt when examining a plaintiff an account of what occurred forms part of the background material of relevance to the examination, but it is not of primary importance, at least so far as the detail of it is concerned. In each case the doctors have copies of other reports in which some reference is made to what occurred. None of the references to the other vehicle contained in the medical reports lead me to doubt his veracity on the subject of what occurred.
  1. There is some discrepancy between the account which the plaintiff gave of his movements in the twenty-four hours or so prior to the accident and what was put to the court on his behalf when he pleaded guilty to drink driving. The defendant placed some reliance upon this. The plaintiff says that he does not remember hearing this account.
  1. It is not clear how such an account came to be given but I accept the plaintiff’s account of his activities during this time, although I do not accept his statement that he had nothing to drink at the tavern in Caboolture. He had earlier said that he was “not a hundred percent sure” whether he had had anything to drink.
  1. There is no evidence that he was substantially affected by alcohol at the time he was driving the vehicle towards the scene of the accident.
  1. Of particular significance, it seems to me, in the resolution of the issue of liability is the account which the plaintiff gave in the immediate aftermath of the accident when treated by the ambulance officers. This is in my view consistent with his account in court. The marks on the roadway are also, it would seem to me, consistent with that account and contrary to the suggestion that the vehicle simply failed to take the curve and ran off the road. The marks show the vehicle out of control and moving at an angle across the roadway.
  1. I am satisfied that the driver of the unidentified vehicle was guilty of negligence in driving on the incorrect side of the roadway and this was a cause of the accident.
  1. A number of matters are relied upon by way of contributory negligence. However in my view there is no basis for concluding that the plaintiff, faced with the approaching vehicle, did anything which a reasonable person in his position ought not to have done in the interests of his own safety or failed to do anything which a reasonable person ought to have done. There is nothing to suggest that any steps that the plaintiff might reasonably have taken would have avoided the accident which occurred. I dismiss the claim for contributory negligence.
  1. The plaintiff suffered a penetrating wound to his left flank, a closed fracture and anterior dislocation of the left shoulder, and an open fracture of the left iliac crest.
  1. A closed reduction of the left shoulder dislocation was performed and the left flank wound was debrided.
  1. The plaintiff subsequently underwent a further procedure on the left shoulder in about March 1999 when, it would seem, some calcifications in the tendon were scraped away.
  1. He has been left with a disability of the left arm as a result of loss of movement and loss of power and wasting. There is a significant difference between the percentage loss of function constituted by this disability in the opinions of, on the one hand, Dr Clark and Dr MacFarlane, both orthopaedic surgeons called by the plaintiff and, on the other hand, Dr Nave, also an orthopaedic surgeon, called by the defendant.
  1. There does not seem to be any difference between the orthopaedic surgeons as to the consequences of the shoulder disability to the plaintiff. He is not capable of any heavy work or work which involves the use of the arm above the shoulder or at shoulder level.
  1. He has some sensory loss of the left thigh and there was some bone loss at the site of the fracture of the left iliac crest. These leave him with minor consequences.
  1. I should mention that the plaintiff complains of back and neck problems. He said that he first became aware of back pain after the painkilling drugs wore off and he also gave evidence of suffering from pain in the neck for some weeks after the accident. He however now complains of pain in both areas. There is no evidence of any injury in these areas in the report of the Nambour Hospital nor is there any evidence of any complaint being made until he saw Dr Giles.
  1. Those orthopaedic surgeons who examined these areas of his body have not found any abnormality and the evidence does not satisfy me that the plaintiff sustained any injury to these areas at the time of the accident except perhaps for some minor injury producing some temporary pain. There is nothing on the medical evidence to suggest that he currently has any disability of the cervical spine or the lumbar spine. Nor have regular examinations by army doctors revealed any abnormality in these areas.
  1. The plaintiff had, prior to the accident, suffered a number of injuries in the course of his employment but there is nothing to suggest that he was anything other than a fit, active man. His posting at the time confirms this.
  1. The plaintiff has significant psychiatric problems and has had even more serious psychiatric problems in the time between the accident and the present.
  1. The plaintiff enlisted in the army on 4th June 1996.  He was then 17.  A medical examination carried out at that time suggested that the plaintiff was fit and had no psychological problems.
  1. He had been posted as a rifleman to Infantry Battalion 1RAR at Lavarack Barracks a few months prior to the accident.
  1. This posting meant that he was liable to be sent anywhere at any time.
  1. I am satisfied that the plaintiff placed great store in his membership of 1RAR and his role as a member of a team. I accept his evidence that he intended at that time to stay in the army, although I have reservations about his claim that his plans at the time were to remain there until he turned 60. I think however that he would have been likely to have sought to remain there at least for 20 years when he would have been entitled to a discharge. I also accept that he aspired to advancing to more specialised units.
  1. After his return to work the plaintiff underwent a number of medical assessments. In November 1998 he was assessed medically at level 3R, to be reassessed in three months time. The consequence of this assessment was that he was precluded from a number of physical activities which, as a rifleman posted to 1RAR, he was required to perform. He was given a position in the sergeants’ mess. Again in March 1999 he was assessed as level 3R and given a similar assessment in August 1999.
  1. I am satisfied that these restrictions had a major impact upon his life and his perception of himself. He saw his career in the army as disintegrating around him and was depressed by his inability to do what was necessary to remain as part of a team with his colleagues.
  1. On 25th October 1999 following an examination on 5th October 1999 he was medically assessed at level 4.  There is evidence from Dr Chalk, a psychiatrist who examined the plaintiff on behalf of the defendant, but who was called by the plaintiff, and Mr Zemaitis, a psychologist called by the plaintiff, both of whom have had considerable experience with the Australian Defence Force and are familiar with its systems.  Medical 4, according to each, is a final assessment which carries with it an inevitable discharge.  This assessment relates entirely to the plaintiff’s physical condition.
  1. I will return to his discharge in a moment.
  1. The plaintiff had undergone a rifleman’s course between June and August 1997. It would seem that the purpose of this was to qualify him for employment in 1RAR.
  1. Although his posting indicates that he passed the course, some criticism of him appears in the report which is Exhibit 10 and which itself relates that he had completed the course.
  1. The following appears under the heading Comments:

“Pte Bailey completed all modules of the course.  Pte Bailey displayed a barely acceptable attitude throughout the course passing all objectives without retest.  He was an adequate and ignored team member who demonstrated no leadership potential in group activities. He maintained a satisfactorystandard of personal organisation and lacked confidence when handling weapons, ammunition and equipment. His overall performance was assessed as marginal.”

  1. Nonetheless, as Mr Zemaitis said in evidence, the training associated with the posting that he had been given is particularly demanding and requires a high level of fitness.
  1. The plaintiff commenced using amphetamines some relatively short time prior to his discharge and following his discharge began to seriously abuse amphetamines and, it would appear, another drug or other drugs. He reached a low ebb in mid 2001 when he was admitted to the Townsville General Hospital suffering from a psychotic condition and following an attempted suicide. In late 2000 he was involved in a motor vehicle accident in Rockhampton in which he was a passenger in a stolen vehicle. He sustained a fracture of his left ankle which has left him with some disability, although the evidence would not suggest that this is significant.
  1. The plaintiff sought treatment in late 2001 and has since ceased using illicit drugs. Professor James is of the view, which I accept, that he has been left with ongoing consequences of his abuse of drugs. I have already referred to these.
  1. It is common ground amongst the psychiatrists and the psychologist called that he has been left with a psychiatric condition which is a consequence of the accident.
  1. According to Mr Zemaitis he developed a series of conditions following the accident namely: (a) an adjustment disorder with mixed anxiety and depressed mood (b) major depressive disorder (c) substance induced psychotic disorder (d) an adjustment disorder with mixed anxiety and depressed mood. It is the last of these from which, according to Mr Zemaitis, he currently suffers.
  1. Dr Chalk also thinks that he suffers at present from an adjustment disorder with a depressed mood. Professor James thought that his condition when he saw him in June 1992 was that of a post traumatic stress disorder, features of which were anxiety and depression. He said that the features of this disorder are similar to those of an adjustment disorder. He lists these at pages 14 and 15 of his report. Professor James thought that he suffered from a major depressive disorder at about the time of his discharge from the army.
  1. The condition according to the evidence is stable and, on my understanding, permanent, although there may be some improvement in its symptoms.
  1. It is the defendant’s case that to the extent that the plaintiff’s condition has been made worse as a result of his abuse of drugs this is not compensable. It is also the defendant’s contention that the plaintiff’s discharge from the army is not a consequence of the accident.
  1. The defendant relied upon cases such as Beard v Richmond (1987) Australian Tort Reports 80-129 and State Rail Authority of New South Wales v Weigold (1991) 25 NSWLR 500.
  1. It was the view of Professor James, which I accept, that the plaintiff became increasingly aware following the accident that he was not going to be able to continue his army career as his restrictions excluded him from the role of a rifleman in 1RAR. He developed a major depression as the inevitability of his discharge struck him and he was in fact discharged. He resorted to drugs to alleviate his depression and his use grew until it reached a serious stage resulting in a psychosis.
  1. The plaintiff’s evidence was that the drugs relieved his depression. He said “I know it’s not the right decision. It’s the only option I had at the time …”. Later he said, “It was a wild decision, sir”.
  1. I accept the submission that the plaintiff’s abuse of illicit drugs should not be regarded as a foreseeable consequence of the Nominal Defendant’s negligence.
  1. Alternatively if the abuse of drugs is to be regarded as foreseeable in the relevant sense, the plaintiff’s decision to abuse drugs in the way he did should be held to be unreasonable and excluded from the damages recoverable.
  1. To the extent then that the plaintiff’s damages have been increased by his abuse of drugs and the consequences of such abuse, the defendant is not liable.
  1. However I do not think, given Professor James’ evidence, which I accept, that damages should be assessed on the basis that these matters would have occurred in any case, that is that they represent supervening events occurring independently of the accident.
  1. It is appropriate to take into account the risk that the plaintiff may have reacted in a similar way if faced with setbacks of a serious nature which threatened or brought about the termination of his career in the army.
  1. The plaintiff had been convicted in March 1998 of drink driving on 26th September 1997 (the accident).  On 21st August 1998 he was convicted of drink driving on 5th August 1998.  On 9th November 1998 he was convicted of driving whilst suspended on both 24th September and 25th September 1998.  He received a formal administrative warning from the army on 19th November 1998.  This in effect placed him on notice that his performance generally would be monitored over the following 12 months.  Particular reference was made to his use of alcohol.
  1. He failed to comply with a general order which required him to attend a parade on 23rd July 1999 and this triggered the show cause notice.
  1. The defendant submitted that it could not be held responsible for the plaintiff’s discharge. I accept that the defendant should not be regarded as liable for the commission by the plaintiff of criminal offences, for reasons similar to those I have already given in relation to his use of illicit drugs. However, it is not entirely clear that the plaintiff was discharged on these grounds. Certainly the show cause process was based upon the offences committed by the plaintiff, what were said to be his problems with alcohol and his failure to attend a parade or parades after being placed on a warning because of the offences and his alleged abuse of alcohol.
  1. The plaintiff appears to have addressed his alcohol problems with some success.
  1. A decision to discharge him was based upon his failure to show cause. The notice to show cause had been triggered by his disciplinary lapses.
  1. However, there is a document on the file which appears to request “new discharge” to be on 25th October 1999 “due to pre-administration and med board confirmation”.
  1. This appears to have been approved under the hand of a Major Simes.
  1. There is a document headed:

“SCMA

PMI DISCHARGE CELL

FINAL MEDICAL BOARD RESULTS ADVICE”

  1. This shows the date 5th October 1999 as being “date of board”.  It shows a discharge date of 25th October 1999 and shows an assessment of the plaintiff as class 4.  The evidence which I have suggests that such an assessment would necessarily result in discharge and this appears to be the effect of the document.
  1. The certificate of discharge or transfer shows that the discharge was authorised under Australian Military Regulation 176(1). Regulation 176(1) is the regulation under which the notice to show cause was given and deals with a discharge of a person whose retention is not in the interests of the army. However it deals with discharge generally and includes discharge on medical grounds.
  1. On the face of things the plaintiff appears to have been discharged for two reasons. Dr Chalk, who has examined the file, refers to a notification to Commonwealth superannuation of his discharge on medical grounds.
  1. I think that to the extent the plaintiff was discharged on grounds other than medical grounds, it must be taken that this was triggered by his disciplinary breach or breaches. The evidence of both Professor James (page 137) and Mr Zemaitis (page 143) suggests that those matters are directly related to his psychiatric condition which is the consequence of the injuries he sustained.
  1. Some allowance may have to be made for the risk that he may have continued to commit offences involving alcohol and been discharged in any case but the evidence suggests that he had successfully completed an alcohol abuse programme.
  1. I think that taking the evidence as a whole, the plaintiff’s discharge should be regarded as flowing from his injuries and the psychiatric consequences to him of them, and the defendant should be held responsible for any loss flowing to him from that.
  1. I accept the evidence of Dr Chalk that because of the psychiatric consequences which he suffers as a result of the accident (that is to say the adjustment disorder with depressed mood), he would be limited in his employment to part time work which would probably require some retraining and some degree of benevolence on the part of his employer. He has no skills or experience in sedentary employment such as clerical work. Professor James expresses a more pessimistic view of the plaintiff’s capacity to hold employment but this is based upon the ongoing consequences of his abuse of illicit drugs. Mr. Zemaitis and Helen Coles, an occupational therapist, also think that he is limited to part time work.
  1. As I have said I think that the likelihood is that the plaintiff would have sought to remain in the army for at least 20 years but for the accident. He seems to have taken considerable pride in his membership of 1RAR. I have figures which are based upon assumptions as to the plaintiff’s career path and which involve promotions at various stages. Mr Coco, an accountant who gave evidence, is also somebody with a good deal of experience of army matters and has prepared similar exercises in many cases.
  1. However there is no certainty that the plaintiff would have remained in the army during the whole of this period. The plaintiff may have chosen to leave within this time. Given the somewhat adverse comments in Exhibit 10 he may not have survived 20 years in the army. Indeed there is the risk that he may not have lasted very long at all. On the other hand there is the chance that he may have seen out 20 years and reenlisted and remained there for a significantly further period or he may have achieved his ambition to be posted to a specialist unit. As I have said I think it reasonable to assume he had a vulnerability to reacting in the way that he did to any setback in the way of serious physical injury and the risk of this occurring must also be taken into account.
  1. I assess the plaintiff’s general damages in the sum of $45,000.
  1. Of this I ascribe some $22,500 to the past. I allow interest at 2% per annum for six years producing an amount of $2,700 for interest.
  1. The plaintiff has earned little in the way of income since the time of the accident. He must be taken as having had a residual earning capacity since his discharge notwithstanding that in fact he almost certainly would have been unemployable during the period that he was abusing drugs. Such an earning capacity would not have been likely to translate itself into substantial earnings and there probably would have been some necessary period of retraining. According to the figures which I have, the plaintiff, had he remained in the army, would have earned between the time of his discharge and the present, a sum of about $190,000. This includes additional income or deployments to overseas postings which on the unchallenged evidence, members of 1RAR have engaged in. In addition the plaintiff would have received a superannuation benefit of a little over $112,000 and medical benefits of $4,362. The total claimed for lost income and benefits is $205,339. Making what I think is an appropriate allowance for the factors I have referred to, I allow $125,000 for lost income and benefits.
  1. The plaintiff has received $38,467.50 by way of income substitution payments. I allow interest on the difference (between $39,000 and $125,000 after making allowance for some small amount of earnings) for 6 years at 4% producing a figure of $20,640.
  1. So far as future economic loss is concerned figures contained in Exhibit 17 show that the plaintiff would, had he remained in the army until age 60, have received a salary of $518,000 in present value terms and, when account is taken of other entitlements, a total of $630,000.
  1. These figures can represent at best a starting point. The period involved is so long that allowances for contingencies and vicissitudes require a significant discount. The other factors to which reference has already been made also require significant discounts. However, realistically the plaintiff’s losses under this head must necessarily be substantial as he is still very young and has lost a career and now has an earning capacity limited to part time work with an understanding employer. I allow for loss of future income and entitlements a figure of $300,000.
  1. There is a claim for hospital, medical and other expenses. However the only amounts proved are the subject of a defence determination in the sum of $6,641.65 and this is allowed on the basis of the Determination.
  1. The plaintiff claims $1,000 as an estimate of pharmaceutical expenses that he has incurred since the accident. He does not presently take pharmaceuticals and at times in the past has chosen not to. However the evidence is that he has taken painkilling drugs and he swears to these in his affidavit. I think that this amount should be regarded as having been proven.
  1. I also allow the amount claimed for $1,000 for travelling expenses.
  1. There is a claim for interest on some $3,124.50 for special damages. However this seems to be based upon matters the subject of the Determination and other sums which have not been proven to be related to the accident. I allow $400 representing interest on the pharmaceuticals purchased by him and for travelling expenses.
  1. So far as the claim for care and assistance is concerned, there is evidence from an occupational therapist that the plaintiff has had a need for assistance of about three to four hours per month for yard and garden maintenance, and two to four hours per week for domestic chores. She thought that the domestic assistance would now require no more than one to two hours per week for tasks which were heavy.
  1. The plaintiff has lived on his own except for a short period following the accident when he would have required assistance and on a number of other occasions when he lived with relatives. For a significant period following the accident, he lived at Lavarack Barracks. It appears that he has performed all domestic tasks for himself. He has not had to maintain a yard or garden and this can be disregarded so far as the past is concerned.
  1. The evidence does not permit an award for past care and assistance beyond a relatively small sum for the period during which the plaintiff was cared for by relatives following the accident. I allow the sum of $600 including interest.
  1. So far as the future is concerned, the plaintiff has a need for domestic assistance of about one hour per week or a little more, and he may need assistance with a yard or garden in the event that he lives in a house owned by him or rented by him.
  1. The fact that the plaintiff’s circumstances have resulted in neither a need for domestic services (or, perhaps more correctly, any need he has had has gone unsatisfied) or a need for assistance with a garden or yard should not prevent him from recovering damages so far as the needs he will have in the future is concerned.
  1. It is impossible to do anything other than approach this upon the basis of a global assessment of what I think is likely to be the least amount which would compensate him for these needs. I allow $17,500 for future care and assistance. I have applied the rates agreed upon between the parties in my calculations of past and future care.
  1. The plaintiff does not currently take pharmaceuticals. However as I have said, he has taken them in the past and I think it can be assumed that he is likely to do so in the future. The amount claimed is $1,000 which is much less than the actual calculations contained in the schedule to the quantum statement upon which the claim is based. I think that sum is not unreasonable and I allow it.
  1. There is a claim for future medical expenses. The basis of this also appears in a schedule to the quantum statement. The greater part relates to a suggested procedure in which bone from the shoulder blade is removed. However it is clear from the report of Dr MacFarlane that this is only a possibility. I allow a figure of $2,000 for future medical expenses to make allowance for this and for attendance on medical practitioners from time to time.
  1. I give judgment for the plaintiff against the defendant in the sum of $523,481.65.
Close

Editorial Notes

  • Published Case Name:

    Bailey v Nominal Defendant

  • Shortened Case Name:

    Bailey v Nominal Defendant

  • MNC:

    [2003] QSC 433

  • Court:

    QSC

  • Judge(s):

    Cullinane J

  • Date:

    19 Dec 2003

Litigation History

No Litigation History

Appeal Status

No Status