Morris v Warrian[2003] QDC 9

DISTRICT COURT OF QUEENSLAND

1. [1]
   By this action the plaintiff claims damages for injuries suffered by him in a motor vehicle accident on 3 July 2000 at Paradise Street, Mackay. On that date at about 6.50am a motorcycle ridden by the plaintiff collided with the rear of a Toyota Hilux driven by the first defendant. As a result the plaintiff suffered injury. Liability and quantum are both an issue.

Liability

2. [2]
   The plaintiff said that the accident happened because the first defendant’s vehicle moved to the left and slowed down as if it was going to park at the kerb, and the plaintiff began to overtake it, when it suddenly without warning swung to its right into the path of the plaintiff, as if executing a u-turn: p. 8. The plaintiff was unable to avoid running into the rear of the vehicle. The first defendant^[1] said that he had moved a little to the left in order to avoid a fire hydrant plug which was protruding above the surface of the bitumen (p. 107), and had then moved back to the normal line of traffic for that road when his vehicle was struck from behind by the plaintiff’s motorcycle: p. 108. He denied that he had been at the time attempting a u-turn or indeed any other turn, although he was approaching a point where he intended to turn left into the driveway of a property beside the road: p. 109.

3. [3]
   The road on which the collision occurred is a straight flat road running a little west of south from Mackay towards Paget. Along this section it is bounded to the east by a light industrial area. It was bounded on the west by the railway line entering Mackay from the south, but construction of the new station for Mackay and a new railway bridge diverted the line from this route, the railway beside Paradise Street was closed and the track removed. There is a kerb and channel on the eastern side, and the road is bitumen sealed for a generous lane in each direction and the shoulder on the eastern side as far as the kerb. On the western side there is a gravel shoulder leading to a grassy area on the edge of which there is a line of trees marking what was the eastern boundary of the railway reserve.

4. [4]
   At the time, and for some years previously, the defendant worked at an equipment hire business, Keogh’s, located on the eastern side of the road near the point of impact: p. 105. There was some dispute about just where the collision occurred, but the boundary between that property and the next business to the north, a BBC Hardware store and surrounding yard, was within a few metres of the point of impact. The general layout of the properties and some dimensions appear on the sketch prepared by the plaintiff: Exhibit 2. This sketch is not to scale. The general appearance of the road appears in photographs (Exhibits 10 – 14, 23, 27, 29).

Similar fact evidence

5. [5]
   One preliminary issue which must be determined before deciding the question of liability is the admissibility of certain evidence led on behalf of the plaintiff. The plaintiff called a witness who said that, on two other occasions shortly prior to the date of the accident, he had seen the defendant execute a u-turn at about the same place without prior warning to other traffic. The witness, Mr Law, was employed by the same employer as was the plaintiff: p.86. He said that about two weeks before the accident he was driving south along Paradise Street when he found himself behind a utility identified as belonging to the hire company for which the defendant works: p. 86. The vehicle moved over to the left as it approached the premises, and Mr Law went to go around it but at the last minute it veered right straight in front of him and cut him off: p. 86. The vehicle completed the u-turn and parked on the right hand side of the road where other vehicles were parked: p. 87.

6. [6]
   Then on the Thursday or Friday before the day of the accident (which was a Monday) what looked like the same vehicle performed the same manoeuvre as Mr Law was following it south towards the same premises: p. 87. On this occasion as well Mr Law was able to avoid it, by himself braking and swerving to the left: p. 87. On the second occasion Mr Law sounded his horn and made a gesture to the driver of the other vehicle with his hand as he went past: p. 88. He recognised the driver as being the same driver on each occasion, and as someone he had seen working for the hire company when he had visited there himself from time to time: p.88. His description was consistent with the appearance of the defendant, and he said that he had seen him subsequently walking in the vicinity of the premises (p. 91), and he had seen the same man that day in the precincts of the court: p. 96. (The defendant gave evidence the same day, shortly after Mr Law.)

7. [7]
   The defendant when giving evidence said he had no recollection of either such event, and denied that he had on these or any other occasion executed a u-turn without warning when there was a vehicle approaching from the rear: p. 110. There is therefore a conflict of evidence as to whether these earlier incidents occurred, but the first question is whether evidence about the earlier incidents is admissible at all. In a criminal trial, evidence that the accused had behaved in a similar fashion on other occasions would generally not be admissible, but that is at least in part because of concern that the evidence if admitted would be given undue weight by a jury, so that it would be more prejudicial than probative. Logically such a basis for exclusion has no application in a civil case, as was pointed out in Cross on Evidence (Aust. Ed.) para. 21280. However, there are in that text references to a range of different approaches by courts in civil cases in Australia.

8. [8]
   For example, in cases where it is alleged that a representation was made which was in breach of s. 52 of the Trade Practices Act 1974, evidence had been received that the same party made similar representations to other persons on other occasions:  an example is Mr Figgins v. Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23. Such cases were in a context where what was being alleged was that there was a practice of making similar representations, because the same representation had been made to various other people, and that therefore it was likely that that practice would have been followed in the case of the particular plaintiff. Such an approach however was rejected by Gummow J in D F Lyons Pty Ltd v. Commonwealth Bank of Australia (1991) 28 FCR 597, following an analysis commencing at p. 605. In that case the crucial issue was what was said by a particular bank officer in the course of a conversation about foreign exchange loans with a particular customer. There had been other conversations with other customers about those loans, but His Honour held that precisely what was said on the particular occasion was of great importance, so that the evidence of the other conversations would not tend to prove the making of the particular representations on which the particular applicants in that case relied: p. 627.

9. [9]
   His Honour was also concerned that allowing the evidence in would result in the multiplication of the issues thus greatly lengthening the trial. That was not an issue in the present case; one witness was called in support of the evidence, and the defendant gave his response succinctly. The difference seems to be that in that case His Honour faced a dispute as to just what was said, in circumstances where it was common ground that there had been a conversation on a particular subject matter, whereas in other cases the issue was whether what was said to be a standard representation was being made in all cases including the particular case.

10. [10]
    It does seem to be accepted that matters of habit, trade custom and business practices may be proved by evidence of what has been done on other occasions: Forbes “Similar Facts” (1987) para. 8.42. Evidence of a particular habit in the context of a motor vehicle accident was admitted in Eichsteadt v Lahrs [1960] Qd.R. 487. The plaintiff, an infant, was injured when he was struck by a car at an intersection, and there was an issue as to whether he was at the time riding a bicycle (as the defendant alleged) or walking and wheeling it. The plaintiff had no memory of the accident, but evidence was led to establish a habit on the part of the plaintiff of wheeling his bicycle when crossing that particular intersection, and was held admissible. Townley J at p. 501 found that the plaintiff had formed the habit of wheeling his bicycle at this particular location prior to the date of the accident, and therefore the evidence was admissible. An appeal to the High Court was dismissed:  Lahrs v. Eichsteadt [1961] Qd.R. 457^[2]. Dixon CJ at p. 461 said the evidence was admissible:

“All that was in question was the way a particular person commonly negotiated at the outset of his journey a short and steep piece of roadway with an inadequately equipped bicycle, and there seems no reason why that should not be described by witnesses with a view to rebutting what, in the absence of information, might be an ordinary assumption that he would mount his bicycle at once.”

11. [11]
    In Taylor v. Harvey [1986] 2 Qd.R. 137, Carter J excluded evidence sought to be led on behalf of a plaintiff, who alleged that his motor cycle had been struck by the defendant’s vehicle travelling in the opposite direction, that the defendant, who was known to him and with whom he had previously worked, had on two prior occasions at about the same point on the same road mischievously driven his truck on to the incorrect side of the road at a time when he was approaching the plaintiff, in effect playing “chicken” with the plaintiff: p. 138. His Honour distinguished the approach in Lahrs (supra) on the ground that what was being alleged did not amount to a habit or habitual practice on the part of the defendant when driving on this part of the particular road. It seems to me however that that was not the real point of the evidence:  it was to show that the defendant was in the habit of driving in a particular way on this particular road when he saw the plaintiff on his motor cycle coming towards him. I have difficulty in seeing why the evidence was not logically probative of that proposition. The issue in that case was whether at the time of the collision the plaintiff was on his correct side of the road, and whether the collision had been caused by the defendant’s driving his vehicle on to the incorrect side.

12. [12]
    His Honour also held that the evidence should be excluded as a matter of discretion because its prejudicial effect outweighed its probative value. With respect, I prefer the view expressed in Cross on Evidence at para. 21280, that in a civil proceeding there is no question of prejudice because there is no accused person. On the question of whether a discretion exists in such circumstances to exclude the evidence, this decision was not followed by Mullighan J of the Supreme Court of South Australia in Duke Group Ltd v. Pilmer (1994) 63 SASR 364, 123 FLR 210, where it was held that no such discretion exists.

13. [13]
    There are other civil cases where such evidence has been admitted to show a habit, or perhaps a propensity, to behave in a particular way. In Mood Music Publishing Co Ltd v. De Wolfe Ltd [1976] Ch. 119, a copyright infringement case, there was an issue of whether the resemblance between two pieces of music was a coincidence or the result of copying. Evidence was admitted of three other examples of  resemblance between music published by the defendant and music of others, on the basis that this suggested a practice of copying because the alternative was an increasing implausible set of coincidences.

14. [14]
    In the present case an issue was whether at the time of the accident the defendant was engaged in a u-turn so that he could park the vehicle he was driving on the opposite side of the road adjacent to some trees, where such vehicles were commonly parked, or whether he was intending on this occasion to continue down the road a short distance before turning left into the driveway of the premises. Evidence that he has been in the habit of executing a u-turn and parking on the opposite side of the road logically supports the proposition that that was what he was likely to be doing on this particular occasion. It is not, in my opinion, necessary that the evidence be so strong as to be conclusive of that point. It is enough that it shows a pattern which is different from what one would otherwise assume for a person in his position. But the real significance is not just some habit of parking on the opposite side of the road to his place of work (rather than on the same side, or within the grounds) but a propensity to make the turn without first indicating and, perhaps, without insuring that there was no vehicle close behind him to his rear. That is significant to the plaintiff’s case that at the relevant time the defendant had commenced a u-turn without first indicating and without checking to see that the plaintiff’s motor cycle, of which he had been earlier aware, was not in the process of overtaking him to the right.

15. [15]
    In my opinion, once it is accepted that the evidence does logically support the probability of the plaintiff’s case being true, it is admissible subject to exclusion on the policy ground identified by Gummow J in D F Lyons Pty Ltd, namely the excessive multiplication of collateral issues. That not being a problem in this case, in my opinion the evidence was admissible and I admit it.

16. [16]
    It does not necessarily follow that I accept the evidence. It is necessary to consider all of the evidence, and to make an assessment of the respective credibility of the defendant and Mr Law, before deciding the evidence would be accepted. The fact that Mr Law speaks of only two occasions, on one of which his vehicle was not particularly close to that of the defendant so that there was no risk of a collision as a result of the defendant’s manoeuvre, is in my opinion a matter which goes to the weight of the evidence rather than to its admissibility.

Other evidence on liability

17. [17]
    The plaintiff had been on his way to work when the accident happened.^[3]  The plaintiff said that he collided with the rear of the defendant’s vehicle, sliding into the tow bar area: p. 8. However he then said that he slid into more the right hand side rear of the vehicle: p. 8^[4]. He said that after the accident he picked himself up off the ground, abused the other driver, and pushed his motor cycle to the side of the road where he stood for about 15 minutes, before he pushed his bike into the defendant’s employer’s premises: p. 9. While he was standing on the footpath speaking to the defendant and another person, he was seen by a Mr Mountney, who worked with the plaintiff and who was also travelling to work along the same road: p.82. Mr Mountney in fact stopped a way down the road, but then proceeded to work: p. 82.

18. [18]
    Mr Long, who worked with the defendant, gave evidence. He had parked his vehicle on the western side of Paradise Street, approximately opposite the border between BBC Hardware and Keogh’s: p. 127^[5]. He had arrived early for work, and was waiting for the gate to be opened. He saw the defendant come out of a side street and saw him again as he was passing the BBC Hardware, and then as the defendant’s vehicle came opposite him, he saw the motor cycle hit the back of it: p. 128. It follows that he had a side-on view. It appeared to him that the defendant’s vehicle had been heading straight down Paradise Street at the time of the collision, although given that he was looking at it almost side on, I think it unlikely that he would have been able to detect a relatively small angle between the direction of travel of the vehicle and the line of Paradise Street. He rejected the proposition that the defendant’s vehicle could have been as much as 45 degrees to the direction of Paradise Street: p. 133^[6].

19. [19]
    Mr. Long said that after the impact the plaintiff fell to his right and would have landed in about the middle of the road. The defendant continued up the road for about 30 metres, then performed a u-turn and came back, parking near his vehicle: p. 129. He said that there was a mark on the tow bar of the defendant’s vehicle, and dirt was brushed off the bottom corner near the tail lights (p. 129) apparently by the plaintiff’s arm: p. 133. He said the plaintiff had come over to the western side of the road while the defendant was turning, but eventually went back and picked up his bike and moved it to the eastern side of the road: p. 129. Later the defendant and the plaintiff pushed the bike back into the employer’s yard, and it was eventually loaded into one of the employer’s vehicles and taken back to the plaintiff’s residence.

20. [20]
    Mr Harris also worked with the plaintiff. That morning after he had heard of the accident he took a vehicle owned by the employer and drove to where he had been told the accident had happened, presumably with a view to collecting the plaintiff’s bike: p. 74. When he arrived there was no sign of the plaintiff or his bike, but he saw things on the road about opposite the boundary between BBC Hardware and Keogh’s: a very short skid mark, a patch of oil, a bit of broken glass, and (in the gutter) a mirror which he later found fitted into a place where a mirror was missing from the plaintiff’s bike: p. 75. The debris was about opposite the telephone pole close to the boundary to which I have referred, and was in about the middle of the road, although that estimate was somewhat imprecise: p. 65.

21. [21]
    The defendant was cross-examined about a version he gave to the police, and accepted that he had said:

“I was driving south on Paradise Street. I started to move to the left a fraction. I saw the bike behind me. It appeared it was going to overtake me on the left hand side so I moved back onto the road, only to see him moving over the right side to overtake me. I stayed on the road and he ran into me. I was going to turn further down the road”: p. 113.

He admitted to the police that he did not have any indicators on, and said the same to me, but this was because he was not intending to turn, until he was further down the road. He said that he did a u-turn and came back 20 or 30 metres further on, but this was only because he came back to see how the plaintiff was;  he had intended to turn left into the entrance: p. 109, 118. (See also Exhibit 3).

22. [22]
    On 25 September 2000 the defendant made a statutory declaration to someone who was investigating the accident on behalf of the second defendant in which he set out his account in more detail: Exhibit 28. In that he made no mention of moving to the left to avoid the hydrant, and then to the right again, but relevantly describes the accident in these terms:

“I saw the lights of a motor cycle coming up behind my vehicle. The motor cycle appeared as though it was going to overtake me on my left hand side. I continued travelling straight ahead. I had not indicated my intention to turn right or left at any time. I was still travelling 25 to 30 kilometres per hour. When I looked in my rear vision mirror I saw the motor cycle veer towards my left and thought the driver intended to overtake me on my left. Then I saw the motor cycle light veer back towards the right and I believe the motor cycle was then going to overtake on my right. I heard a second of a screeching of brakes and the motor cycle collided with the centre of my vehicle. It collided with the ball on the tow bar right in the centre of my utility.”

Otherwise the statement is consistent with the defendant’s evidence.

23. [23]
    The defendant admitted that, at about the time of the accident, if the utility that he was driving to work was not particularly required for deliveries that day it would be put across the road with other trucks: p. 123. This was more to keep them out of the yard rather than because of any desire to have them in the shade. He said that if he was not unlocking the gate and did not have any gear to be unloaded, it was quite possible that he would park straight across the road, although it was common to pick up gear after hours and therefore have it when he arrived at work in the morning: p. 123. Mr Long on the other hand said that the defendant parked his utility on the western side of the road about 70% of the time: p. 130. This involved doing a u-turn, essentially in front of Keogh’s. If that evidence is accurate, and there is no reason not to accept it, it seems to me that the defendant was not particularly frank about how frequently he would be parking his vehicle on the opposite side of the road when he arrived at work.

24. [24]
    There is another aspect of the defendant’s evidence which strikes me as not entirely consistent. He told me that he did not particularly see the plaintiff’s bike just before the collision, and had not particularly kept an eye on it after the time when he had seen it move to the left, prior to the collision: p. 122. But in the statutory declaration, Exhibit 28, he spoke of seeing it move to the right after it had moved to the left. It also seems strange that he did not mention his move to the left, and the fact that he had moved back towards the centre of the road after passing the hydrant, either to the police officer or in the statutory declaration.

25. [25]
    On the other hand, the evidence of Mr Long is really inconsistent with the proposition that the defendant had embarked on a u-turn at the time the collision occurred. If that had been the case, the defendant after the collision would have completed the u-turn before stopping to see how the plaintiff was, rather than driving some distance down the road before turning. There is also the consideration that Mr Long’s vehicle was facing across the road (rather than parallel to the line of the road) and although there may have been sufficient room, it would have been more awkward for the defendant to do a u-turn directly in front of Mr Long’s vehicle, rather than further along the road. It also would have put the defendant further away from the gate.

26. [26]
    Mr Long said that another vehicle came past heading north soon after the collision and that the defendant had to wait for it to pass before he did the u-turn: p. 131. If there was a vehicle approaching that might be a reason why the defendant would not be performing a u-turn at the time of the collision, although if he thought he could get around before it came it might be a reason why he was keen to do the u-turn promptly, and perhaps without first seeing what the plaintiff was doing.

27. [27]
    On balance however Mr Long’s evidence provides important support for the defendant on the issue of whether the defendant was engaged in a u-turn at the time when the collision occurred. I think that if the defendant had been so engaged it would have been obvious to Mr Long, and after the accident he would have simply completed the turn in that position, rather than straightening up so that he could drive a short distance down the road to do a u-turn somewhere else. It also occurs to me that the plaintiff’s idea that the defendant was engaging in a u-turn may have come from the fact that the defendant moved to the right into his path immediately before the accident, and then after the accident ended up on the other side of the road facing the other way. Subject to this however, I generally prefer the evidence of the plaintiff to the evidence of the defendant, and am generally cautious of the evidence of the defendant.^[7]  I accept the evidence of Mr. Long.

28. [28]
    In the present case I accept that the defendant was travelling fairly slowly along Paradise Street and that he moved to his left to avoid the hydrant in the road. The plaintiff said he tended to follow vehicles towards their right hand side (p. 42), and so it was likely he would have moved a little to the left for the same purpose. The defendant may well have seen this move, though it is odd that he should interpret it as the plaintiff’s attempting to overtake to his left, when the obvious explanation is that the plaintiff was doing the same thing he was doing himself, namely avoiding the hydrant which was sticking up above the surface of the road at that point. The defendant was travelling quite slowly, and it was reasonable in those circumstances for the plaintiff to want to get past him, and to see this move to the left (in combination with the slow speed, and the fact that the utility obviously was associated with Keogh’s premises that were coming up on the left) as indicating that the vehicle was going to stop on the left hand side of the road: p. 45. He therefore accelerated with a view to passing to the right of the defendant’s vehicle, but without going on to the other side of the road, bearing in mind that there was a vehicle approaching some distance away.

29. [29]
    The defendant said to the police, in his statutory declaration, and in his evidence to me that it appeared that the bike was going to overtake on the left hand side, but that is not something that he could have ascertained just as a result of seeing it move to the left in his rear vision mirror. The bike was in fact moving to overtake, and for that purpose it would accelerate, something likely to be audible to the defendant. His evidence however would be consistent with his having at that time believed that the bike was overtaking to his left, and with his having in response moved his vehicle to the right, not simply to get back into the normal line of traffic, but to get out of the way of the plaintiff. I do not accept that he saw the plaintiff move to the right before the collision. I do accept that he changed direction in his vehicle so that it moved to the right on the road, and that this had the effect of taking it into the path of the plaintiff. I think it more probable that he was deliberately moving to the right because of his belief that the plaintiff was overtaking on his left. He admitted that he did not indicate, or otherwise warn of this move.

30. [30]
    In this situation the defendant’s driving prior to the time when he moved the vehicle to the right would, as I have said, have suggested he was going to stop in front of the premises on the left side of the road, and, bearing in mind that he was travelling very slowly, would have been virtually an invitation to the plaintiff to overtake to his right. Having heard the plaintiff begin to overtake, in my opinion he ought not to have moved his vehicle to the right without first checking to see where the plaintiff was and on which side he was overtaking. Had he done that he would have realised that he was being overtaken to the right, and would (presumably) not have moved his vehicle into the plaintiff’s path. The plaintiff was proceeding to overtake a slow vehicle which had apparently moved out of the way and was apparently intending to continue to do so, when it suddenly and without warning moved to its right immediately in his path. I accept that the defendant did not indicate, and it follows that the plaintiff had no warning of the defendant’s move to the right, until it happened, by which time the plaintiff was too close to be able to take any effective evasive action.

31. [31]
    I do not accept that this is a case where the plaintiff approached a vehicle from the rear and for some reason neither slowed down nor steered clear, and therefore ran into the back of it^[8]. The plaintiff after following the utility deliberately accelerated with a view to overtaking the defendant’s vehicle. One would not expect someone in his position to do that without having a clear path available for that overtaking manoeuvre, and on the defendant’s evidence there was such a path available, as a result of his move to the left. But the defendant, having by his behaviour effectively invited the plaintiff to overtake, and being aware that the plaintiff was beginning to overtake him (I infer as a result of hearing the sound of the bike accelerating) then moved his vehicle into the plaintiff’s path. In my opinion a reasonable person in the position of the defendant would have anticipated that the plaintiff was taking that path, and the defendant would have seen the plaintiff was taking that path if he had been keeping the plaintiff properly under observation. In circumstances where he had invited an overtaking manoeuvre from the motor cycle and where he has become aware that the motor cycle was beginning to overtake, for him to move his vehicle to the right without first checking that it was safe for him to do so, that is that such a move to the right would not place him in the path of the plaintiff, was in my opinion negligence on the part of the defendant. The negligence consisted of failing to keep a proper lookout to ascertain the actual whereabouts of the plaintiff and on which side he was overtaking, and driving without due care and attention, and moving his vehicle to the right in the road into the path of another vehicle without prior warning of his intention to do so.

32. [32]
    This is not the basis upon which the plaintiff ran his case. Nevertheless, the particulars of negligence which I have found include particulars which are pleaded in para. 6 of the statement of claim, and I consider that it is open to make a finding of negligence against the defendant on those particulars. I have largely, but not entirely, accepted the defendant’s version of the facts, but if on those facts the defendant was negligent and that negligence caused the collision I consider that it is in order for me to make findings to that effect. I find that the defendant was negligent in this case and that his negligence did cause the collision, and hence the plaintiff’s injuries.

33. [33]
    I have been referred to other cases where drivers overtaking other vehicles which turn right without warning have been absolved of contributory negligence: Jones v. Rice (1987) 6 MVR 77;  Cross v. Callaghan (1987) 6 MVR 504;  Braund v. Henning (1988) 7 MVR 97. The last of these cases emphasised that it is important to focus, in relation to such an issue, on the facts of the particular case rather than on precedent. In the present case in my opinion the behaviour of the defendant’s vehicle was such as to make it reasonable for the plaintiff to move to overtake the way he did, and the plaintiff had no reasonable opportunity to avoid a collision once the defendant’s vehicle moved to its right into his path. From the plaintiff’s point of view it did not matter whether the move of the defendant’s vehicle into his path was in the course of a u-turn, or simply a move closer to the centre line. It had exposed him to an unavoidable obstacle. There is no evidence from which I could conclude that at the time of that move a reasonably careful motor cyclist, who had reasonably embarked on an overtaking manoeuvre, nevertheless ought to have been able to avoid the collision. I am therefore not satisfied that there was any contributory negligence on the part of the plaintiff.

Quantum

34. [34]
    After the accident the plaintiff had pain along the right side of his thigh and lower body, where there was some skin abrasions and later bruising^[9]. He had pain in the right hip which made it difficult to walk, and some lower back pain. He went to the Mackay Base Hospital where he was x-rayed and given medication for pain relief and discharged with a medical certificate for seven days off work. He remained at home resting but the pain did not reduce and on 10 July he saw a general practitioner, Dr. Macintosh, who referred him to physiotherapy and certified that he was fit to resume light duties on 12 July. He tried the physiotherapy but did not think it was of any benefit to him.

35. [35]
    He was cleared to return to normal duties on 25 July 2000 and did so, but he had continuing pain and other symptoms in the right side of his right leg. As a result he avoided voluntary overtime. The continuing pain was interfering with his sleep. The plaintiff had an ultrasound investigation of his lump on 4 September 2000: Exhibit 7. He continued to take anti-inflammatory medication, and received regular massages in the right hip area from his partner, which provided some temporary relief after the aggravation of the pain caused by the day’s work. The plaintiff was eventually referred to an orthopaedic surgeon, Dr Shaw, who was seen on 20 February 2001. I do not have a report from Dr Shaw. I infer that he did not think any useful treatment was available.

36. [36]
    The plaintiff was involved in a further motor vehicle accident on 13 November 2001, again while riding his motor cycle, when he was involved in a collision with a car: Exhibit 16. He suffered an injury to the left knee and the left wrist (p. 19), which were x-rayed, missed four days work and had a further period of light duties after returning to work: Exhibit 18, Exhibit 19.

37. [37]
    The plaintiff qualified as a diesel fitter some years ago, and has worked in that employment in various places in Australia, and at one stage overseas, including work for Hastings Deering in Mackay, which employment was current at the date of the accident, and is continuing. That company has a workshop in Mackay but also does work on a contract basis for mining companies, which is done in a workshop at the mine site: p. 69, 70. There are also employees who work in the field, attending customers’ equipment on site. Work at the mine site is significantly better paid, but there is a regular work force there which deals with most of it. Sometimes employees from the workshop in Mackay work temporarily at the mines, which is better paid work, although heavier^[10]. The plaintiff was working in the workshop at Mackay at the date of the accident and continued to do so until 21 January 2002^[11], when he transferred to field work, at his request. He thought this work would be easier to cope with, since he would not be walking or standing on concrete in the workshop all day, and there would be periods when he was driving, which would take the weight off his right leg. He is now provided with a vehicle by his employer and he gets a call out allowance: p. 50. As a result he has not lost income because of this move: p. 51^[12]. He remains employed in that position.

38. [38]
    The plaintiff was seen for the purposes of a report by Dr Curtis, an orthopaedic surgeon, on 28 June 2002: Exhibit 30. At that stage the plaintiff was complaining of persisting pain in the right hip and right side, and a firm lump just above the iliac crest, although the bruising and swelling had gone. There was still difficulty lying on his right side at night. On examination he was tender over the right flank area, with some restrictions in sideways bending and rotation, and with some sensory deficit over the outer area of the right him flank zone, which was hypersensitive and tender to touch. There was no evidence of exaggerated pain and the tests for inconsistency were negative.

39. [39]
    Dr Curtis thought that the lump, which was some 5 centimetres by 2 centimetres, represented an area of resolving haematoma, fat necrosis zone. X-rays taken in July 2002 excluded bony injury, and showed minor degenerative changes consistent with age. Dr Curtis thought that the plaintiff had suffered extensive soft tissue injury which had resulted in an area of fat necrosis, and had suffered dysaesthesia from one of the nerves in the area. The condition was stationary and stable, and matters were likely to remain essentially as they are. The fat necrosis could be excised, but that was not particularly recommended. He thought there was a 3% to 5% impairment of the whole person. This assessment did not take into account pain or interference with the ability to work: p. 154. There was no reason why the plaintiff should be unable to continue to work, although his symptoms would have reduced the ease of which he could carry out his normal work, and produced minor limitations on his recreational activities which would be ongoing. He did not think the plaintiff required assistance in activities of daily living. He thought massage would be of no benefit other than to provide temporary relief from the symptoms: p. 154. Dr Curtis agreed that it was possible that in the near future he might be advised to change his work, although it seems to me that his answer was based largely on the possibility that there will prove to be problems developing in the spine which have not yet emerged: p. 156. He accepted that the plaintiff’s ability to work depends very much on the extent to which he can tolerate the pain associated with his injury.

40. [40]
    The plaintiff was seen by Dr Cook, another orthopaedic surgeon, on 1 July 2002 for the purposes of a report: Exhibit 6. The same symptoms were referred to. On examination there was a slight restriction of movements with discomfort of the extremes and there was some loss of sensation in the upper right thigh, otherwise the neurological examination was normal. Dr Cook arranged for the plaintiff to receive an injection of cortisone and local anaesthetic into the right sacro-iliac joint which occurred on 5 July 2002. When seen again on 8 July 2002 the plaintiff reported that he had lost about 70 per cent of the pain from the back of the right hip although the area was still sore and tender. It was not aggravated by walking as it had been.

41. [41]
    Dr Cook was of the opinion that the plaintiff had suffered an extensive soft tissue injury to the right side lower abdomen and right hip involving fat necrosis and haematoma, some damage to the nerve in the right thigh and also an injury to the right sacro-iliac joint. Dr Cook thought that the pain problem was largely associated with the joint injury, which had been confirmed by the injection. The condition was regarded as stable and static, but there was some prospect of further improvement and benefit from further physiotherapy, and from the use of anti-inflammatory gels or creams on the painful parts of the hip. Innersoles in the work shoes would assist in reducing jarring from the hard concrete floors, and the injection could be repeated if necessary to deal with some particular problem. Nevertheless, because of the heavy nature of his work, he may find it difficult in the long term to continue in his trade, but he should be able to do lighter work until the normal retiring age. There was no reason to doubt that but for the accident he would have been able to work as a diesel fitter until retirement. He thought there was a 3-4% permanent partial impairment in relation to the various injuries. Again the percentage did not take into account pain: p. 137.

42. [42]
    The plaintiff said that the injection had only a temporary effect, and after two weeks the pain began slowly to come back: p. 13. It is accepted that this injection produces only temporary relief, although the duration can vary: p. 138. However there is a limit to the frequency with which these injections can be given (p. 138) and the plaintiff said that he found it unpleasant (p. 60) and was not keen to repeat the injection. Dr Cook thought the plaintiff would probably be able to continue the field work until retirement: p. 141. However it is quite possible that will not occur particularly if the pain became worse. If the condition deteriorated one other option would be surgery to fuse the sacro-iliac joint. If that became necessary it would cost about $6,000 (p. 147) and the plaintiff would require about three months off work to recuperate, followed by three months on light duties. Dr Cook thought the chance of surgery being necessary would be of the order of 10-15%: (p. 148). Indeed he recommended changing occupation in preference to the surgery: (p. 149).

43. [43]
    There is not much difference between the approach of the two doctors, except that Dr Cook has identified the sacro-iliac joint as a particular cause of the plaintiff’s problems. There are some things which could be done by the plaintiff, particularly if his condition deteriorates, but essentially the prognosis is that he will go on much the same as he is now indefinitely, and the amount of the pain he suffers will depend a great deal on the extent to which he stirs up the condition by heavier work. The percentage disability, 4%, is not very meaningful in this case because it does not take into account pain which is the main consequence to the plaintiff of his injuries.

44. [44]
    There was some issue as to whether the plaintiff’s transfer to field work was a consequence of the symptoms associated with the left knee rather than the hip. The left knee problems apparently resolved following an arthroscopy of the left knee in March 2002: p. 21, Exhibit 20. He subsequently told Workers’ Compensation that he had no problems with the left knee: p. 63. Given the timing I think it is likely that the problems in the left knee contributed to the plaintiff’s desire in early 2002 to move into field work, but I accept that the plaintiff’s difficulties as a result of the injuries suffered in the accident were certainly a cause, and indeed the principal cause, of that move, which overall would have made life easier for the plaintiff^[13].

45. [45]
    The plaintiff called Mr Hanwood, who works for Hastings Deering and had been the plaintiff’s supervisor for three years until about one month before the trial: Exhibit 5, p. 64. He said that prior to the relevant accident the plaintiff was a keen worker who was happy to do overtime and worked to a high standard, and was a valuable fitter. Since the accident his performance has deteriorated, he had difficulty standing for long periods of time and he seems to have lost interest in his work to some extent. His impression was that the knee injuries had come good: p. 67. The problems he identified with work in the workshop was climbing on big machinery and, particularly, walking on the concrete: p. 69-70. He confirmed that the transfer to field work was at the plaintiff’s request, and said that the plaintiff’s performance had improved to some extent since that transfer. He was still concerned about the plaintiff’s performance, but not at a level which jeopardized his position with the company. Although there were concerns about his work, a shortage of experienced fitters encourages the company to continue to employ him. At the time of the trial, which was over two months after his statement (Exhibit 5), Mr Hanwood thought the plaintiff was fitting into the field work “not too bad”: p. 65.

46. [46]
    The plaintiff called Mr Harris, another fitter working for Hastings Deering, who said that prior to the accident he had been involved in training sessions for kickboxing with the plaintiff, and the plaintiff then was quite fit. He confirmed that the plaintiff’s work require climbing on large equipment and getting into awkward positions: p. 73. He spoke highly of his work and approach to the job. Another co-employee, Mr Mountney, spoke well of the plaintiff’s work prior to the accident: p. 81. Since the accident the plaintiff still did his work properly, but was slow and dis-interested and was obviously not himself: p. 82-3. Mr Law also thought that his ability to work had deteriorated: p. 90.

47. [47]
    At the time of the accident the plaintiff had been in a de facto relationship for about 12 months with Ms Matthews: p. 97. After the accident she collected the plaintiff from Keoghs and escorted the vehicle which was moving the motor cycle back to their house, and then drove the plaintiff to hospital: p. 98. She confirmed that after the accident the plaintiff was in a fair bit of pain and was limping and had a lot of grazes and bruises, and that he rested during the time he was off work: p. 99. She said that since the accident the plaintiff had stopped going to the gym, and does not do a lot of walking, and does not do as much around the house because by the time he has finished work he was not up to much else: p. 99. She confirmed that she had been regularly massaging his right hip to ease his discomfort. She had the impression that the plaintiff was finding field work easier than work in the workshop: p. 101.

48. [48]
    The plaintiff was born on 3 August 1963 and is now 39. I accept that as a result of the accident the plaintiff has the injuries described by Dr Cook, and that they cause him continuous although varying pain, the pain being stirred up by his work. It is likely that the condition will continue indefinitely; if it gets significantly worse there are some things which can be done for it. On the other hand the doctors do not hold out any real prospect of significant improvement. It is clear that the effect on the plaintiff will depend very much on whether he continues to work as he has been. If the plaintiff was able to change to a lighter job, or is forced to give up work completely, that would reduce the amount of pain he suffers, but conversely would increase his economic loss. The plaintiff has persisted with his work and has found the field work easier, and I think that the plaintiff will probably persist with the field work. There is likely to be a continuing demand for people to do that sort of work, either with his present employer or some other employer, and as an experienced and competent tradesman I do not think there will be any great difficulty in the future in his obtaining employment so long as he is physically able to undertake it.

49. [49]
    The plaintiff did not say that he was planning or intending to give up his employment at any particular time in the future, and although a period of five years is referred to in paragraph 52 of Exhibit 4, there is nothing in the medical evidence to suggest that there is any particular prospect of his ceasing work at that point. On the contrary, the doctors expect that he should be able to continue to work indefinitely, so long as the work is not too demanding. He has changed employer from time to time in the past, and if experienced diesel fitters are in short supply, as was indicated in the evidence, there would always be the prospect of his moving to another and perhaps lighter job if his current employer were to demand greater physical effort from him. Overall I assess that it is likely the plaintiff will remain in employment for most of the balance of his working life, although some allowance should be made for the possibility that that will not be the case, in which circumstances his pain and suffering would decrease. I accept that this has had a significant adverse effect on his recreational activities, and his enjoyment of life generally, but it does not seem to me that as a result of his injury he has any need to have things done which he would otherwise have done for himself in the activities of daily living. In all the circumstances I assess damages for pain and suffering and loss of amenities at $32,000, of which I apportion $7,000 to the past. That will carry interest at 2% per annum for 2.6 years.

50. [50]
    With regard to past economic loss, it is uncontroversial that after the accident the plaintiff lost net income of $219.39 (reimbursed by WorkCover) for the period when he was off work, apart from the first four days where he was paid by his employer anyway. Apart from this, the only loss suffered by the plaintiff would have been by way of voluntary overtime refused, or through the loss of the opportunity to do mine work, which involved working an extra shift of 12 hours plus travelling time, presumably in addition to rather than in lieu of a normal working day. The plaintiff’s figure is an estimate only and this amount of overtime is not directly supported by other evidence, although the availability of such overtime from time to time was confirmed by other witnesses. There is however no evidence to support the extent of the claim in relation to lost overtime, and I note that in the financial year prior to the accident the plaintiff’s net income was actually lower than in the financial year after the accident: Exhibit 4. In these circumstances I think that my approach should be a moderate one, and I will allow $3,000 in total for past economic loss. That will carry interest at 4% per annum for 2.6 years.

51. [51]
    With regard to future economic loss, at the present time the only economic loss being suffered is the continuing loss of ability to do the particularly remunerative work at the mines, or the opportunity to do other heavier but more remunerative work. There is however the possibility that at some time in the future the plaintiff will be unable to continue to do the work he is currently doing, and will either have to give up work completely or, more probably, change to a less physically demanding but presumably less remunerative job. As I have said earlier, I think it is likely that the plaintiff will continue probably in his current employment or something like it, until about age 65, a conclusion which is supported by the medical evidence and depends to some extent on my assessment of the plaintiff as an individual. There is however some reasonable chance that that will not be the case, and it is necessary to make allowance for this, and also make allowance for the fact that the plaintiff is not as favourably positioned in the labour market as he otherwise would have been had he not been injured, although I accept that his qualifications and experience in his trade are a valuable asset and likely to be always in demand.

52. [52]
    It was submitted on behalf of the defendant that a global award of the order of one year’s nett salary of $30,000 would be appropriate to accommodate this chance. Bearing in mind that the plaintiff had (before allowance for vicissitudes of life) the prospect of 25 years earnings ahead of him, this is not much of an allowance, particularly with the continuing loss of the opportunity to do more remunerative work. No doubt as the plaintiff aged his enthusiasm for doing what would undoubtedly be quite a strenuous shift to earn that extra money would have diminished anyway, but equally his ability to tolerate the pain levels is likely to diminish as well as he gets older, particularly if the situation is complicated by some other medical condition which would not alone have prevented him from working. It was submitted on behalf of the plaintiff that a reasonable allowance was the figure of $75,000 and in all the circumstances I think that such a figure is reasonable.

53. [53]
    That figure represents only 15% of the present value of 25 earnings at his current rate and may be compared with Dr Cook’s opinion that the likelihood of the plaintiff’s requiring arthrodesis of his sacro-iliac joint is less than 10-15%: p. 148. Dr Cook also said that it would be preferable to change his occupation rather than undergo the surgery. But it is quite possible that the plaintiff will decide he is unable to continue to work at the current level even if his condition does not deteriorate to that point, and I think the probability that the plaintiff will at some stage either move into a less strenuous job or stop work completely is higher than that, with the probability no doubt increasing as time passes. Perhaps $10,000 of this figure represents the loss of opportunity to do more remunerative work. My impression from the evidence from the plaintiff’s de facto wife was that at the time of the trial the plaintiff was still finding even field work fairly heavy going, so I think some significant allowance should be made for the possibility that the plaintiff will at some stage in the future change to a less physically demanding employment, or if that cannot be found, give up work entirely. If he gets to the stage where he is unable to work as a diesel fitter at all, he would then be simply an unskilled person with a disability, and would be likely to have difficulty finding suitable employment.

54. [54]
    It was agreed (p. 2) that the plaintiff be compensated for loss of superannuation benefits by an allowance of 7% of past economic loss, and 9% of future economic loss, an amount of $6,960.

55. [55]
    The plaintiff claimed for gratuitous assistance in respect of two hours a week for massage since the date of the accident; and for gratuitous assistance on a similar basis indefinitely into the future. This treatment offers him symptomatic relief, and it is a question of whether it is worthwhile on that basis. The question is whether this is something he needs in the sense that, if his partner were unavailable to provide it, he would pay someone to do it. I do not think that it would be reasonable to allow massage of this frequency provided on a commercial basis simply as a means of pain relief, for someone with the plaintiff’s condition^[14], and I think it necessarily follows from that that it is not reasonable to allow compensation for gratuitous assistance in respect of this massage.

56. [56]
    In case a different view may be taken elsewhere about that, I find that the plaintiff has been receiving the equivalent of two hours per week for massage, for which at the agreed rate of $12 per hour (p. 2) comes with some rounding to $3,000. I would allow interest upon this for 2.6 years. For the future I would allow two hours per week for 46 years at $12 per hour, but provide a significant discount to accommodate the vicissitudes of life and the possibility that either the condition will moderate to some extent and the massage would no longer be necessary, or less frequent, or the condition will worsen and either the massage will be unhelpful or there will be surgery which will be of greater assistance, or the plaintiff will cease or reduce work under which circumstances there will be less need for massage. Bearing in mind all of these considerations, I think there should be a significant discount, and I would allow $20,000 for future gratuitous care.

57. [57]
    In the circumstances however for the reasons I have given I will not allow compensation in respect of the massages. There would however no doubt have been some other necessary gratuitous care provided in the period immediately after the accident, and the defendant did not dispute the sum of $400 to cover this, together with an allowance of $1,000 for future care to accommodate the possibility that at times in the future some specific assistance will be needed because of the consequences of the injury. I will allow these amounts, together with $80 interest in respect of past care.

58. [58]
    Special damages consist of WorkCover payments totalling $2,433.19, the Fox v Wood factor of $62 and medication totalling $58, which were uncontroversial: Exhibit 4, Exhibit 8. In addition the plaintiff claimed for the cost of Feldene, for pain relief, at $13 and the cost of his recent injection into the sacro-iliac joint, $460.10: Exhibit 26. I will allow these amounts as well, so special damages comes to $2,998.29, of which $181 will carry interest at 4% for 2.6 years, $19.

59. [59]
    For future medical expenses, there is some possibility that the plaintiff will require surgery on his sacro-iliac joint, although it is unlikely to come to surgery and my assessment of the plaintiff is that he will be reluctant to undertake such surgery, and accordingly only a modest allowance should be made for the chance that this will occur, and I will allow $500. On the other hand, it is likely that he will need some pain relief from time to time in the future, probably indefinitely, and the medical evidence suggests that the use of painkillers such as analgesics, or creams, would be reasonable, with perhaps occasional physiotherapy. The difficulty with the physiotherapy is that the plaintiff’s past experience has not encouraged him to undertake it, but I think it is likely that there will be some medical and physiotherapy expenses from time to time in the future, even though the plaintiff’s condition is not one which requires regular medical supervision.

60. [60]
    The other consideration is whether the injection will be repeated. These generally provide only temporary pain relief, although there is some prospect of achieving some lasting reduction in the pain. The medical evidence did not suggest that they were something used routinely and indefinitely, and the plaintiff did not seem very keen about having another injection. Although reference was made to two injections per year, this was more a limit rather than a reasonable treatment regime. On the whole I think it highly unlikely that the plaintiff would have as many as two injections per year in the future, although he may well have some further injections on occasions in the future, particularly if there is some specific exacerbation of this condition. Overall therefore there are various things which are likely to cost him money in the future but it is not possible to be precise about how much and when. In these circumstances I will allow a global figure for other future medical expenses of $2,000. This produces a total for future medical expenses of $2,500.

Summary

61. [61]
    Damages are assessed accordingly as follows:

1. (a)
   Pain and suffering and loss of amenities$32,000

2. (b)
   Interest on $7,000 at 2% for 2.6 years$364

3. (c)
   Past economic loss$3,000

4. (d)
   Interest at 4% for 2.6 years$312

(e)Future economic loss$75,000

6. (f)
   Loss of superannuation benefits $6,960

7. (g)
   Past gratuitous care$400

8. (h)
   Interest at 8% for 2.5 years$80

1. (i)
   Future care$1,000

10. (j)
    Special damages$2,998

(k)Interest on $181.00 at 4% for 2.6 years$19

(l)Future medical expenses$2,500

Total$124,633

62. [62]
    There will therefore be judgment that the defendants pay the plaintiff $124,633 which includes the sum of $774 by way of interest. I will circulate these reasons and invite submissions as to costs, but unless some other order is appropriate I will order the defendant to pay the plaintiff’s costs of the action to be assessed.