DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff claims damages for personal injury resulting from the alleged negligence of the defendant Raymond Hawkswell (defendant) in a collision on Hursley Road, Toowoomba on 30 April 2007 at between 5:30am and 6:00am. At the time the plaintiff was driving a factory HSV Commodore sedan SS V8 and the defendant was driving a 1980 F100 truck and pulling a three horse float containing three thoroughbred racehorses. The defendant estimated the combined weight of truck, float, and horses at 2.7 tonne.^[1]  It is common ground that the defendant’s vehicle hit the plaintiff’s car square on from behind and that is evidenced by photographs of the Commodore post the accident.^[2]

LIABILITY

Plaintiff’s account of accident

2. [2]
   At the time the plaintiff was a 45-year-old truck driver and is still a truck driver. It is relevant that on either the Thursday or Friday evening prior to the Monday morning of the accident the plaintiff had endured the trauma of his daughter being admitted to hospital in Toowoomba suffering from a drug overdose as a result of an unsuccessful attempt on her life.

3. [3]
   The plaintiff said that at about 5:45am on 30 April 2007 he was driving his Commodore at about 55kph to 60kph^[3] along Wyalla Road towards Hursley Road.  The weather was fine and dry^[4] but it was very dark.  From his knowledge of the area he knew that there were people and horses at that time of day, in the area of Wyalla Road^[5] running alongside the Clifford Park Racetrack.  For that reason he drove with his lights on high beam. 

4. [4]
   As he drove along Wyalla Street, approaching the driveway into Clifford Park he noticed the defendant’s truck and float emerging from Clifford Park and immediately dropped his high beam to low beam.

5. [5]
   He thought the defendant would stop and give way to him but said he did not, but rather moved straight out onto Wyalla Road and pulled out in front of the plaintiff causing him to break severely. The plaintiff’s reaction was to flash his high beam at the defendant “to let him know that was a silly thing to do”.

6. [6]
   Both vehicles then continued along Wyalla Street to the Hursley Road intersection. The plaintiff said the defendant turned left into Hursley Road at a speed of about 10-20kph.^[6]  He followed the defendant around the corner and as soon as it was all clear he over took him and pulled back in front of him.  He was still doing between 50kph and 60kph.^[7]

7. [7]
   There was more lighting on Hursley Road than Wyalla Street according to the plaintiff but he said he was not aware that the lighting on the adjoining racetrack flooded onto Hursley Road.^[8]

8. [8]
   The plaintiff said as soon as he pulled back in front of the defendant after overtaking him, the defendant put his high beam and spotlights on, the reflection of which lighting in his cabin mirror and two side mirrors caused him to be blinded. He then just tapped his brakes to cause his brake lights to flash with the view to letting the defendant know that he should drop his high beam. According to the plaintiff the defendant kept his high beam and spotlights on for the whole time his vehicle was in front of the defendant’s.^[9]

9. [9]
   The plaintiff then continued down Hursley Road a short distance but as the defendant’s lights were still blinding him he took his foot off the accelerator again and in his words, “Before I knew it, I was hit from behind”.^[10]  At point of collision he said he was travelling at between 20kph and 30kph.^[11]  He said that the collision occurred about 80metres to 100metres from a taxi stand which he said was located about 300 metres from the Wyalla Street/Hursley Road intersection which would place the collision at between 200m and 220m from that intersection.^[12]

10. [10]
    After the accident the plaintiff said both he and the defendant alighted from their vehicles and the defendant said to him, “Oh, I can do without this,” to which the plaintiff replied, “And so can I”.  The plaintiff then said, “You’ve just pulled out in front of me.  You’ve hit me with your high beam.  Now you’ve hit me from behind.  Is there anything else you want to do to me?”

11. [11]
    According to the plaintiff the defendant responded, “Well, nobody drives up Wyalla Street that time of the day with their high beam on”.  To which the plaintiff replied, “You can’t say then you didn’t see me, ‘cause you know as soon as I exited the fence line I dropped my high beam and you know it”.  The defendant then said that, “He knew he was in the wrong, totally in the wrong”, and he was going to give the plaintiff his insurance details.  He told the plaintiff he was fully covered and that he was aware that he was, “Completely in the wrong”.  After giving the plaintiff his insurance details, the defendant again said, “I can do without this”, to which the plaintiff replied, “So can I”.  The defendant asked the plaintiff if he was ok and the plaintiff replied, “No, I’m not”.  The defendant said, “What’s wrong?” and the plaintiff replied, “Oh, I’m just upset because me daughter’s in hospital”, to which the defendant responded, “I’m sorry to hear that”, and, for a third time,“I can do without this”.^[13]

12. [12]
    The plaintiff was asked whether he was angry at any time as a result of the defendant not giving him right of way on Wyalla Street. He said he was a little bit shocked but he was not angry. He said he was emotionally upset because of his daughter’s situation which was traumatic and that he was worried, as any normal parent would be, as he drove to work on the morning of the accident.^[14]

Defendant’s account of accident

13. [13]
    The defendant’s account is different in material respects from that of the plaintiff’s. The defendant is a real estate agent who owns and trains race horses. He estimated the length of the truck and float at 38 feet (11.5 metres) and had measured it out the day before he gave evidence and said it was between 12 or 13 metres in length.^[15]  He works them each morning and each afternoon.  He said he usually goes to the racetrack at about 3.30 am and is normally home by 6 am.^[16]

14. [14]
    As I have said, on the morning in question he was driving his F100 truck towing a three horse float containing three thoroughbred racehorses. He said he drove very slowly out of the Clifford Park Racetrack onto Wyalla Street with his lights on low beam.^[17]  He said he nosed his vehicle onto the footpath and looked down Wyalla Street and saw lights coming from about four to five hundred metres away.^[18]  He moved onto Wyalla Street and turned left towards Hursley Road continuing to drive very slowly.  He said he did not see the plaintiff flash his high beam.^[19]  He proceeded towards the Wyalla Street/Hursley Road intersection and when he arrived there he said he probably almost stopped because Hursley Road at that hour was extremely busy.  He had his indicators on and turned left into Hursley Road.   

15. [15]
    During the turn into Hursley Road when his truck was on Hursley Road and the trailer still coming through from Wyalla Street he said “a car flew around the outside of me-come around onto Hursley Road, got in front of me and stopped”.^[20]  Later he said the car came “almost to a dead-set standstill”^[21] and later in cross-examination said, “Well, as far as I was concerned it stopped”.^[22]  He said the plaintiff’s car stopped one or two sedan lengths in front of him at most.^[23]

16. [16]
    The defendant said he got a bit of a fright when the plaintiff’s car stopped and he flashed his lights once or twice onto high beam and may even have sounded his horn.^[24]  The plaintiff then moved off but stopped again having travelled, “Another couple of metres, twenty metres, twenty feet, whatever”.^[25]  The defendant flashed his high beam again on the plaintiff but he did not move so the defendant then put his spotlights on him and the plaintiff moved off.^[26]  He said when he threw the spotlights up the plaintiff’s vehicle was five metres in front of him.^[27]

17. [17]
    By this time according to the defendant the horses in his float had started to get upset and were kicking^[28].  After the plaintiff started to move again the defendant said he started going again at a very slow speed and he then saw the plaintiff’s car pull in about 100 to 150 m behind the taxi rank on the side of Hursley Road.^[29]  He estimated his speed as he travelled towards the plaintiff at 5, 10 or 12 kph^[30] at point of impact with the plaintiff; he accepted that it could have been 10 to 15 kph which was the speed he gave in each of his police statements.^[31] He said the plaintiff had driven about a 100 metres from his stop position before pulling in behind the taxi rank.^[32]  He said ‘he had just got nearly level with the plaintiff’s vehicle when, without any indication at all, the plaintiff drove straight out in front of him and put his brakes on’.  The defendant said ‘he applied his truck brakes and the electric brakes on his float but could not stop in time with the result that he ran into the back of the plaintiff’s car’.^[33]

18. [18]
    He got out of his car and said to the plaintiff, “Are we going to talk about this?” to which the plaintiff replied, “Oh, I – I shouldn’t be driving when I’m like this”, or words to that effect.  The plaintiff then put his head down at the back of the car.  The defendant then said, “Can I help you in any way?” to which the plaintiff replied with something to the effect that his daughter was in a bad way.  The defendant then said, “Look, mate, if I can help you in any way I can” ….   He then obtained the plaintiff’s name and registration and gave him his corresponding details and left the scene.^[34]

19. [19]
    I want to now focus on the evidence of where the defendant’s vehicle was in relation to the plaintiff’s vehicle when the plaintiff pulled out in front of the defendant. The defendant first said that he got nearly level with the plaintiff when he pulled out in front of him.^[35]  He then said, “As I drew near him he just came straight out in front of me”.^[36]  He then said that the distance was, “A few metres; 10 metres, 20 metres”.^[37]  He next said that he was two to three car lengths away from the plaintiff when he commenced to move out.^[38]  I then sought to clarify the issue^[39] and the defendant said that the relevant distance was eight or nine metres although he could not say accurately.^[40] Finally, the defendant said he really did not know because, “I wasn’t measuring distances and, at the end of the day, I collided with him”.^[41]

Evidence of independent witness - Jo’anne Pujolas

20. [20]
    Ms Pujolas is a jockey and track work rider and gave evidence that she witnessed the collision. She said on the morning in question she was mounted on her horse and walking it on the footpath on Hursley Road towards the race track she said she heard an engine revving and looked up to see two cars driving towards her, one on the wrong side of the road and the other on the correct side. She said the car on the wrong side of the road pulled out in front of the other one and pulled over onto the side of the road onto the kerb 25 metres in front of her.^[42]  She identified the defendant’s truck and float when it came close to her^[43] because she had done track work for him, though she was not sure whether that was before, or since the accident.  She had also ridden the defendant’s horses in track work and the defendant had acted as agent in the sale of a house to her.^[44]  I should say that no attack was made on Ms Pujolas’ veracity as opposed to her recollection of events arising from that prior relationship with the defendant and, nor could any such attack be sustained, in my view, having heard her evidence.

21. [21]
    Ms Pujolas said that, as the defendant’s vehicle got nearly beside the plaintiff’s stationary vehicle, the plaintiff drove off again and drove in front of the defendant and stopped in front of him resulting in the defendant’s vehicle ploughing into him.^[45]  She said the plaintiff had quickly accelerated in a very sudden manoeuvre back onto the road in front of the defendant^[46] and stopped his vehicle as soon as he was in front of the defendant.^[47]  When asked how far behind the plaintiff’s vehicle the defendant’s vehicle was located at the point of impact she said, variously, the defendant was, “Until Hawkswell was beside him again”.^[48] “He was beside him”.^[49] And, “Only just clear of him … it wouldn’t have been the two-and-a-half (horse) lengths … required before (a car) can cross in front of a horse”.^[50]

22. [22]
    When the collision occurred Ms Pujolas said that the two vehicles were right beside her and about 10m - 20m from the taxi rank. She said the impact of the collision caused her horse to take fright, rear, spin and try to take off down the road which prompted her to say to the plaintiff, “You stupid idiot”. The plaintiff said he did not see any woman on a horse let alone hearing her say, “You’re an idiot”.

23. [23]
    Ms Pujolas did not recall seeing whether the vehicles had lights on and does not recall seeing any sort of blinding lights. Neither did she see either of the vehicles stopping and starting prior to the collision apart from that outlined above.^[51]  She did say, however, that the lights from the grandstand in Clifford Park Race Track go onto the track and also ‘come over the road’ which I take to be a reference to Hersley Road.^[52]

Which account of the incident is to be accepted?

24. [24]
    The evidence of Ms. Pujolas has assisted me in resolving the question of how this collision occurred. The plaintiff denied feelings of anger having been cut off by the defendant. However, I think it more probable than not that the burden of the worry of his daughter’s health, which he acknowledged, was traumatic and emotionally upsetting contributed to his reaction to being denied right of way resulting in his subsequent erratic driving

25. [25]
    I accept the defendant’s evidence, that he did not see the plaintiff flash his lights onto high beam in Wyalla Street. Given that, why would he flash his high beam and spotlights on a vehicle in front of him without reason? Why wouldn’t the plaintiff have continued driving at his 50 – 60 kph speed after overtaking the defendant which would have put him well clear of the defendant? In my view, the reason was that the plaintiff had stopped his vehicle in front of the defendant, as the latter outlined in his evidence. The defendant did not present to me as a person given to acts of provocation. It is more likely, in my view, that his account of the incident and the plaintiff’s driving; stopping and starting is the correct account of the incident. In making this finding I do not wish to be seen to be saying that the defendant’s evidence was seamless. It was not, which I shall shortly exemplify.

26. [26]
    Ms Pujolas’s account, from a person with no interest other than in telling the truth, corroborates in material respects the defendant’s version. I found her to be an honest and reliable witness. True, it is that her evidence did not completely accord with that of the defendant’s. For instance, she did not remember the vehicles having their lights on; didn’t see the spotlights or high beam, and gave evidence that there were no taxis on the rank; contrary to the defendant’s evidence that he believed there could have been three, and that he saw one taxi driver leaning against the boot of his taxi.^[53] 

27. [27]
    The important evidence she gave, which I accept, is that she was right near the two vehicles when the impact occurred, and that the plaintiff pulled out on top of the defendant when the defendant was in close proximity to him. Again, that does not accord with the variety of measurements given by the defendant seeking to explain the distance he was from the plaintiff when the latter pulled out. The defendant was clearly struggling in that regard to try to assist the court in giving measurements of some precision, but it was clear to me, that he could not reliably give much assistance as to actual measurements. The lack of any reliability of any evidence of the actual distance between the vehicles at the point when the plaintiff’s vehicle pulled out in front of the defendant’s makes the arithmetical calculations as to the time the defendant had to react, of little assistance, in my view.

28. [28]
    Mr Keane for the plaintiff assumed a speed of 10 kph (2.7 m per second) over a distance of 15 m to seek to establish that the defendant had some 5 seconds to avoid the collision from the time when he first saw the plaintiff pull out. But that equation suffers from the defect that one of its variables, distance, has not been established by the evidence to any degree of satisfaction to allow me to rely upon it. Further, the defendant’s answer to that proposition was that, “It happened quicker than that”.^[54]  Importantly, his evidence was that he was near the plaintiff’s vehicle when he pulled out and that he had no time to avoid the collision.  That accords with the evidence of Ms Pujolas.  One must bear in mind that lay witnesses do not have the obsession with precision that lawyers do when the latter seek to understand and interpret factual scenarios.  The primary concern of the defendant and Ms Pujolas on the morning was protecting their horses, not measuring distances.  In the defendant’s case, he had the added distraction of coping with the plaintiff’s erratic driving.  As was noted in Tebbit v Dunne and Anor [2009] QCA 86 at [23] it is seldom helpful to try to analyse minutely, with the benefit of hindsight, the precise positions of motor vehicles involved in a collision within a period of a few seconds leading up to the accident.  I am mindful the court there was dealing with a different factual situation, but I adopt that comment in the instant case.

29. [29]
    Again, it is true that Ms Pujolas did not see the plaintiff’s vehicle stop twice before she saw it pull off the road, but given that she was in a straight line or almost a straight line to both vehicles, and had the control and welfare of a horse to concentrate on, I do not think that detracts from the force of her evidence of the actual collision.

30. [30]
    As I have said, in accepting the defendant’s account of the events, I am mindful of the inconsistencies in his evidence. I have already identified those in relation to the distances of vehicles. There is also the evidence of the defendant that there were, he thought, three taxis on the taxi rank and Ms Pujolas who rode her horse past the ranks, said there were none. He was clearly wrong on that. He was also cross-examined about not going to speak to the taxi driver he saw leaning on the vehicle. He was also cross-examined about a police statement he signed which he frankly said he had forgotten about. Despite all the issues raised in cross-examination against the defendant, in my view, they were not, either individually or collectively, such as to found a conclusion that the defendant should be disbelieved in relation to the essential facts of the matter.

31. [31]
    In conclusion I reject the plaintiff’s account of the accident. I find that the plaintiff overtook the defendant as the defendant was negotiating the Wyalla Street/Hursley Road left hand turn and twice stopped in front of the defendant’s vehicle without any good reason. I further find that the plaintiff pulled off Hursley Road behind the taxi rank and brought his vehicle to a halt and, when the defendant was in close proximity to his vehicle, he pulled out without warning and drove back onto Hursley Road in front of the plaintiff. Once on the road I find that he braked his vehicle bringing it to a stop. The defendant’s vehicle then collided with the back of his vehicle.

Contributory negligence

32. [32]
    Despite my acceptance of the defendant’s version of events as to how the accident occurred it does not necessarily follow that the plaintiff is to be held entirely responsible for the accident. What I have to determine is whether the defendant contributed in any way to the collision. In Sibley v Kais^[55] the High Court is considering the liability of the two parties who had collided after both entered the intersection. 

33. [33]
    In considering the responsibilities of each of the drivers the court said:-^[56]

“The obligation of each driver of two vehicles approaching an intersection is to take reasonable care.  What amounts to “reasonable care” is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected.”

34. [34]
    That statement of principle applied in that case to an intersection situation is of broader application. It means that any driver of a motor vehicle seeking to satisfy the duty of reasonable care imposed on that driver, must at all times, have the vehicle so far in hand that it can be brought to a halt, or otherwise manoeuvred to avoid an impact should a situation arise such that if allowed to continue unaddressed, a collision may reasonably be expected to occur. As the court said, what amounts to reasonable care in a particular case is a question of fact.

35. [35]
    In Rains v Frost Enterprises Pty Ltd^[57] the then Full Court was considering an appeal from a 40% apportionment against involved an appeal from a finding of 60% liability against the defendant.  Briefly stated, the defendant was a lead warning vehicle for a large vehicle and had pulled over together with the larger vehicle on the side of the Bruce Highway for a rest.  When it was decided to proceed the driver of the warning vehicle drove onto the Highway with the view to indicating to the larger vehicle when it was safe for it to do likewise.  The warning vehicle drove slowly onto the Highway and two other cars past him without difficulty.  The plaintiff’s car then struck the right rear of the vehicle which was still moving slowly and spun out of control.  The trial judge found that the utility would have been visible to the plaintiff and apportioned 40% liability against the plaintiff and 60% against the defendant.

36. [36]
    On appeal, the court set aside the trial judge’s order and entered judgment for the defendant. In the course of the judgment Dunn J identified what he saw as the “special relation” between “leading car” and “following car” on a quite long straight stretch of road in conditions of good visibility. He said:-^[58]

“I have queried whether His Honour correctly appreciated the nature of the special relation between the leading car and the following car on a quite long straight stretch of road, in conditions of good visibility.  The essence of that relation is that the follower is in a better position than the leader to observe, and thus is able to make a choice between creating a hazardous situation (as, by failing to steer clear) and a safe situation (as, by steering well clear, or by stopping, if he is in doubt as to the leader’s intentions).

It is because of this aspect of the relationship that one finds such judicial observations as the following:-

‘The duty of an overtaking car is to watch carefully the leading car.  If the onus lies on one more than the other, the overtaking car has to show that the leading car is responsible for the collision.’

Twiehaus v Morrison (1947) NZLR 197 at 202:-

‘The following vehicle has the leading vehicle under observation, and it must be expected to watch the leading vehicle for any indication of its intention, but – without the negligence on his part – the driver of the leading vehicle may not know of the presence of the following vehicle, and the driver of the latter cannot assume, as the other may, that he is under observation.’

Kleeman v Walker (1934) SASR 199:-

‘If it be practicable to pursue a course which is safe, and you follow so closely upon the track of another that mischief may ensue, you are bound to adopt the safe course – when one coach follows a close upon the track of another, and there are two ways, one of which is perilous and the other safe, the driver is bound to adopt that which is safe.’

Mayhew v Boyce 1 Stark.423 (171 ER 517):-

‘-the duty which the plaintiff owed to the defendant was to keep to his right side of the road and not to change his course without due and adequate warning under the circumstances, to the defendant.  If that were not so, of course, no one could pass safely.  On the other hand, the duty which the defendant owed to the plaintiff lies in this:  that he was overtaking the plaintiff and his duty was not to run down with his car the plaintiff’s car.’

(Direction to the jury in Warren v Grinnel Co., cited with approval by Macdonald JA on appeal – (1936) 4 DLR 544, at 554):-

‘Whilst the relationship will vary with the circumstances of each case, such as the nature of the road, the usual speed of traffic, and traffic laws or conventions in force, it must always be appreciated and given due consideration’.”

37. [37]
    More recently, however, in Freeleagus v Nominal Defendant^[59] Keane JA said:-^[60]

“One must not overemphasise the responsibility of the following driver or the importance of that driver’s opportunity to avoid the risk created by the carelessness of another.  It must be emphasised of course, that cases of negligence in the management of motor vehicles must always be resolved on their own particular facts.”

38. [38]
    The question then is whether the defendant took reasonable care in all the circumstances. That calls for an identification and assessment of the risk of the ultimate collision. In Freeleagus the defendant had parked her vehicle off the Pacific Highway after her right-hand front tyre had deflated through no fault on her part.  The rear of her vehicle was intruding partly into the right-hand lane of the three southbound lanes and the plaintiff’s vehicle collided with it.  The court found^[61] that the situation of that vehicle did create a danger of collision, albeit not of the making of its driver.

39. [39]
    Considering the present facts, in my view the mere presence of a stationary vehicle on the side of a busy road, without more, would not usually create a danger of collision with other vehicles on the road. That is not to say that drivers of passing vehicles would thereby be relieved of the accepted duty to exercise reasonable care to avoid any foreseeable risk of a collision by, for instance, keeping a close eye on the stationary vehicle when approaching it to pass, lest it commence to enter the carriageway with little or no warning. If that occurred and a collision followed, the question to be addressed would be ‘whether the driver of the vehicle approaching the stationary vehicle exercised reasonable care in all the circumstances’.

40. [40]
    In the context of the events I have found occurred prior to the plaintiff pulling off to the side of the road, the question arises as to whether the plaintiff’s previous erratic driving should have given rise in the mind of the defendant to a heightened risk that the plaintiff may continue that behaviour and re-enter the road in other than safe circumstances. I consider that the answer to that is ‘Yes’ so that the defendant should have been alert to that potentiality.

41. [41]
    The next question is whether the defendant, in those circumstances I have found to exist, exercised reasonable care to avoid the collision. He was travelling at a low speed of 10kph - 15kph. He was aware of the plaintiff’s position on the side of the road; he was driving with a load of 2.7 tonnes with three racehorses on board whose safety he was clearly concerned with. The plaintiff was aware of his presence on the road and that he was travelling towards him. In my view, the duty he owed to the other road users would not have extended to stopping his vehicle in anticipation of the plaintiff pulling out in front of him. That would run the real risk of creating yet another hazard on the busy road in question. Rather, I consider the duty on the defendant in all the circumstances imposed upon him an obligation to drive at a speed and to otherwise manage his vehicle so as to be able to avoid a collision in the circumstances of the heightened risk I referred to. Of course, there will always be a point in time when no degree of care by one driver can avoid the consequences of the absence of care of the other. In my view, this was just such a situation.

42. [42]
    I am unable to see that it could be said that the defendant was driving other than reasonably in the overall management of his vehicle in the relevant factual context. Accordingly, I find no negligence on the defendant’s part whether contributing to the collision or otherwise. The plaintiff’s claim is dismissed.

QUANTUM

Lest I be later found to be wrong in my decision on liability I shall assess quantum. 

43. [43]
    As a result of the accident the plaintiff complains of discomfort in the neck, headaches and feelings of depression, nervousness and tiredness.^[62]  I shall later deal with those injuries in detail.

The Plaintiff’s Work

44. [44]
    The plaintiff is a 47 year old truck driver born 26 February 1962 and presently works for Tronc’s Transport Toowoomba and has done for some four and a half years. He works as a full-time casual which means he gets paid only for the work he does and does not receive sick pay or holiday pay. He has been involved in the transport industry since aged 25 and has driven most kinds of trucks from body trucks to semi-trailers to B-Doubles to road trains.^[63]  As a result of the accident he took two weeks off work between 24 September 2007 and 8 October 2007.  Otherwise, apart from time off to visit doctors and physiotherapists, he has not lost any work time.  He is very proud of his work ethic^[64].

45. [45]
    He gave evidence of a typical day’s work; starting at anywhere from 5 am to 8 am and driving somewhere on the Darling Downs to load a refrigerated van and then driving to Brisbane to a cold store to unload. The furthermost trip he makes to load the vehicle is to Oakey and Pittsworth and very rarely to Roma which he said was a two day trip. His truck is loaded by forklift and in Brisbane it is also unloaded by forklift. In other words, he is not called upon to load or unload the vehicle except occasionally he said when he had to go to Woolworths at the Range in Toowoomba where the truck had to be manually unloaded with a pallet jack. He said it was not unusual in Brisbane to wait three to four hours in a queue for the truck to be unloaded.

46. [46]
    His usual working day is 10 to 12 hours including the three to four hours unloading and four and a half to five hours driving. The typical day involves only one return trip to Brisbane although if he is asked to do two trips to Brisbane, which is not very often, he will drive down empty and load up with cardboard or something for the abattoirs.

47. [47]
    When waiting in Brisbane for unloading he usually goes straight to the drivers’ room.

48. [48]
    If he is feeling unwell he said he would usually lie down in the cabin bunk of his truck and have a rest or go and sit in the cafeteria.^[65]  In relation to the occasional manual unloading of his truck at the Toowoomba Range Woolworths facility, he said that he probably has to do that once every three to four weeks, but other drivers get that roster more regularly.  As a result of that reduced rostering he said he had earned the nickname, “the Bilby”, because his co-workers reckoned that he was a protected species getting easier work than allocated to them.^[66]  He was until 2008 the holder of a Fatigue Management Medical Certificate^[67] which allowed him to legally work 14 hours a day, but he allowed it to lapse so that he can now only legally work 12 hours a day.^[68]  He said that most of the other drivers (over 100) still had a current certificate.

Evidence of Plaintiff’s Supervisor, Mr Masterman

49. [49]
    Mr Masterman, a fellow employee of Tronc’s Transport gave evidence that he was the plaintiff’s supervisor and had been since August 2007.^[69]  His role is to provide the plaintiff with his daily work instruction.  He said he had known the plaintiff for three or four years but hadn’t had a lot to do with him prior to becoming his supervisor.

50. [50]
    He said he sees the plaintiff about three times a week and he usually doesn’t look good at all. He said he usually has tears rolling down his eyes, doesn’t look well and usually has no energy.^[70]  Mr Masterman conceded that he had no knowledge of the plaintiff’s appearance before the accident in April 2007.  When the plaintiff asked for lighter duties he said he accommodated him by giving him later starts at 11 am and he is usually finished by 7 pm.^[71]  He said on Mondays he usually started the plaintiff early and started him the next day and following days at 7.30 am unless he had no work for him, in which case, he would start at 11 am.  He said that on Saturdays he usually rings the plaintiff who usually declines work because he is not feeling well.^[72]

51. [51]
    But having said that the plaintiff usually declines offers of Saturday work, Mr Masterman then went on to say that he worked on Saturdays alright in 2008, but at Christmas 2008 he started to back off his Saturday work.^[73]    Later, he said that the plaintiff worked on Saturdays depending on what was available for him.^[74]  Finally, he said that there were other drivers who work a lot more Saturdays than the plaintiff with a few that worked nearly every Saturday.^[75]

Plaintiff’s Intention to Work in the Mines

52. [52]
    The plaintiff gave evidence that a friend of his, Geoff Saunders, working in the mining industry as a truck driver and said that he had discussions with him about 18 months to 2 years ago about working in the mines.^[76]  He said he was thinking pretty seriously about it at the time and would have been pretty close to going but didn’t feel he could handle it.  The job as he understood it entitled working 12 hour shifts which, apart from travelling to and from the mine, would involve just sitting in the vehicle driving around and around loading and unloading by tipping using levers to tip the load.  It involved working 5 days on, 5 days off.^[77]

53. [53]
    Although it sounded very good to him with the 5 days on, 5 days off, and the money to be earned, he said at present he was in a position with his job where he didn’t have to work (by this I take him to mean that he is not well) and where his actual driving time was 4 or 5 hours and not 10 or 12 hours which would be involved in the mines. He said the rest of the time in his present job was sitting around and waiting so that he wasn’t actually pushed to the limit whereas in the mines, he would have to, ‘go, go, go, all day’.^[78]

54. [54]
    In cross-examination he said that he considered very strongly going to the mines despite the then pain in his left elbow which he expected would abate within 18 months. He agreed his marriage was not sound at the time (in fact he separated in November 2008)^[79] and he was having some ups and downs with both of his daughters, but said that it wouldn’t matter if he didn’t see his wife for the time that he was away at the mines and his kids were old enough.  He denied that the idea of going to the mines was fanciful, and said it had been in his mind for quite some time and he had spoken about it with his stepson on several occasions.^[80]

Evidence of Mr Saunders

55. [55]
    The plaintiff’s friend, Mr Saunders, gave evidence that he worked in the central Queensland mines for 12 months from January 2008 to January 2009, but had left because of the economic downturn to take up a job with Wagner’s in Toowoomba.^[81]  He said he had discussed with the plaintiff the opportunities for work at the mines and said the plaintiff told him he did not take up the opportunity because he thought he would not be able to do the job without taking time off for his headaches.^[82]  These discussions took place at Christmas 2007.^[83]

56. [56]
    Mr Saunders explained that his work at the mines which he discussed with the plaintiffs involved driving road trains from where the coal was stockpiled, transporting it to the wash plants and then taking it from the wash plant to the train load where it was put on the trains. He said he was gone each day for 12 hours, but one hour involved the half hour drive to and from the mine and an hour’s rest. He said he spent about 9 hours actually driving.^[84]

Plaintiff’s Alleged Accident Related Injuries

57. [57]
    Dealing now with the injuries I identified above:-

Plaintiff’s Recreational Activities

58. [58]
    The plaintiff gave evidence that prior to the accident he had hobbies. He was a keen motor sports person and liked to tinker with cars and attend motoring events but that since the accident it had stopped to some degree to the extent that he does not go to events much and does not work on his cars too much.^[87]  He said that in the early days after the accident he didn’t feel up to pursuing those hobbies and lost all enthusiasm and still is not as enthusiastic as he used to be.^[88]  He said that his behaviour had changed a bit in that he had become a bit of a bore.  He also had not attended to his garden and lawns as he had prior to the accident.  Finally he said that he does not see his friends as often as he did because he did not have the enthusiasm to do so.^[89]

Plaintiff’s Pre-accident Medical Conditions

59. [59]
    The following injuries/medical conditions of the plaintiff pre-accident were the subject of evidence from the plaintiff:-

Tennis Elbow

60. [60]
    The plaintiff conceded he suffered a tennis elbow injury which he was suffering at the time of the accident, but which he has since recovered from.^[93]  He said that most of the entries in his diary throughout 2007 recording a sore arm referred to his tennis elbow.^[94]  He agreed that at the time of the accident this injury was causing him difficulties at work.^[95]

Depression/Suicidal Ideation

61. [61]
    The defendant sought to rely upon a letter from Dr G Nutting, orthopaedic surgeon, to Dr L R Knott dated 29 May 1998 to establish that any feelings of depression the plaintiff had encountered since the accident were pre-existing. That letter is in these terms:-

‘Glenn Vos returns on 29 May 1998.  It is very difficult to determine what is causing him the most pain at the present time.  Certainly his examination still does not suggest that he has any wasting of note or major problems, but he does insist that this has caused him suicidal ideation at times and I think that therefore it is reasonable to do something active about it.  I have suggested that he had an MRI of the biceps mechanism since his discomfort does appear to be related distally lateral to biceps.  The only reservation is of course that it is not tender in between these episodes.  He still does have some discomfort proximally’.

 That report related to bicep tendonitis which the plaintiff suffered in 1998 (shoulder injury).  The plaintiff said he could not remember expressing any suicidal ideation to Dr Nutting, but he did remember that the pain was so unbearable at the time that he said to Dr Nutting, “I just can’t handle this any more you know chop me arm off I just can’t handle it”. He said he, ‘did not remember every seeing a psychiatrist’.^[96]

62. [62]
    The plaintiff said that he may have sought treatment for depression a couple of times prior to the accident but he could not be sure, and he could not think of any injury apart from his shoulder operation which would have led to treatment for depression.^[97]

Headaches

63. [63]
    The plaintiff was questioned in relation to a bicycle injury he suffered in 1989 when, not wearing a helmet, he went over the handle bars and hit his head on the bitumen. He denied that he suffered a bad head injury,^[98] but acknowledged that, given that he had hit the bitumen head first he probably was complaining of headaches at the hospital.  He said that from 1989 onwards until between four and eight years ago or even a little bit longer, he suffered from headaches.  At that point, however, whenever it was he said he was diagnosed as having high blood pressure and once that was brought under control his headaches stopped.^[99]

64. [64]
    The plaintiff was then questioned about consulting Dr Phillips in Toowoomba in 1988 with pain in his shoulder accompanied by headaches. He conceded that he may have been having persistent headaches in July 1988 when he consulted Dr Phillips but did not accept that he had persistent headaches from 1989 to 1998.^[100]  He said he had headaches off and on through life like most people do but nothing like he is suffering presently.  He repeated that after receiving the treatment for high blood pressure he did not suffer headaches after that.^[101]

Lower Back Injury, High Blood Pressure, Asthma

65. [65]
    The plaintiff agreed he suffered a lower back injury on 19 July 2000 lifting a box at work, but said his back had healed and there was now nothing wrong with it. The only relevance of the blood pressure is as outlined above and his asthma condition is of no relevance.

Sleep Apnoea

66. [66]
    The next pre-existing condition the defendant alleged the plaintiff suffered from at the time of the accident was sleep apnoea. When it was put to him that he had suffered from this condition for a very long period he said that he wasn’t aware of that and had never taken any tests. He was asked whether the condition had ever affected him to which he responded that he was not sure what was being asked. When it was put to him again that prior to the subject accident in April 2007 sleep apnoea had caused him difficulty in sleeping his response was to say he had never had any sleep apnoea tests. When he was asked whether anyone had ever told him that he had sleep apnoea he said that all he could remember was the doctors talking about it but no more than that. He was then asked whether any problems he had with his sleep had caused him to fall asleep during the day to which he replied, “No. No, not really”.  He was then asked whether he ever found during the day that he was falling asleep causing him difficulties as a truck driver to which he responded that he had never fallen asleep behind the wheel.  He said the only difficulty he had sleeping over the years was when he had accidents and from the pain from sore shoulders and sore elbows.^[102]

67. [67]
    The plaintiff was then shown Exhibit 35 which, relevantly, contained a completed sleep patient referral form dated 2 March 2004 whereby his GP Dr Knott referred the plaintiff to Dr Ross Sellars Respiratory Physician at the Sleep Disorders Clinic Queensland Health, Toowoomba. That form contains the plaintiff’s name and date of birth and further information concerning the plaintiff. It recorded that he worked as a long-distance truck driver and had severe daytime somnolence. It further recorded that his driving was affected by sleepiness (e.g. dozing at lights, run off road, recent MVA), his employment was affected by sleepiness (such that continued employment is at risk) and that his employment was affected by sleepiness such that work performance is jeopardised. The plaintiff’s current condition was described as, ‘Needs a sleep study. Has sleep apnoea. Works as a truck driver’.

68. [68]
    A letter from Dr Sellers to the plaintiff forming part of the same exhibit and obviously wrongly dated 22 January 2004, records that the plaintiff failed to attend an initial consultation with Dr Sellers scheduled for 11 March 2004 at the Sleep Disorders Clinic.

69. [69]
    After reading Dr Knott’s referral letter the plaintiff then conceded that he knew he was fatigued back in 2004 at some stage and that he recalled that. When asked if all of the information on the referral form as I have outlined above was true, he responded by saying he recalled something about it but didn’t go for any tests. He conceded that he did have trouble trying to stay awake through the day at times and he recalled that Dr Knott had spoken to him of sleep apnoea, that he was supposed to go for a test but never did. He was then asked whether he recalled that his driving was affected by his sleepiness and that he was falling asleep during the course of his duties and he responded by saying he had never fallen asleep and had never had an accident although he had been drowsy. When it was put to him that his fatigue was attributable to sleep apnoea in that his sleep was interrupted during the night and he wasn’t getting a proper night’s sleep his response was to say that he could not remember back 5 years, but that may have been the case. When questioned further about his recollection of his sleep apnoea condition he continued to say he had never done the sleep apnoea tests and had never fallen asleep behind the wheel. The plaintiff’s response to questioning on this issue was not impressive.

Conclusions re Plaintiff’s Injuries

70. [70]
    I am satisfied that as a result of the accident the plaintiff suffered neck pain and headaches, feelings of depression, nervousness and at times had difficulty in concentrating. He also suffered from recurring flashbacks of the accident, interrupted sleep with resulting tiredness. I am satisfied that these symptoms persist to some degree today.

Significance of Plaintiff’s Pre-accident Medical Conditions

71. [71]
    As to the significance of the above pre-existing conditions I am not satisfied that any of them have contributed in any relevant measure to the plaintiff’s present post-accident related condition except perhaps for the sleep apnoea leading to sleep deprivation, tiredness and fatigue. As to the tennis elbow, whilst still present at the time of the accident, it has resolved. The plaintiff has acknowledged the pain from that injury. The lower back pain and shoulder injury had been resolved before the accident. As to the earlier bouts of depression, they were, in my view, so long before the accident they could not be said to be an existing condition so as to form part of the plaintiff’s feelings of depression post-accident. The headaches resolved after the plaintiff’s treatment for high blood pressure and, similarly, are unrelated to his accident related headaches. The same applies to his asthma condition.

72. [72]
    Although sleep apnoea was not definitively diagnosed by Dr Sellars, the respiratory physician, because the plaintiff did not attend his sleep clinic for the relevant test, nevertheless, symptoms consistent with the condition were clearly present in early 2004 resulting in Dr Knott referring the plaintiff to Dr Sellars. The plaintiff agreed he felt drowsy and had trouble trying to stay awake at times during the day. As I have earlier said, his evidence on the issue was not impressive. I felt he was very reluctant to concede what I believe, despite his evidence to the contrary, he knew to be a very real problem, possible sleep apnoea in 2004.

Medical evidence

Orthopaedic

Dr Pentis

73. [73]
    Dr Pentis gave evidence for the plaintiff and his report dated 5 June 2008 following his examination of the plaintiff on 27 May 2008 is Exhibit 23. On examination he found the plaintiff had tenderness in the occipital and upper cervical musculature on ranging and palpating with a decreased range of movement of the neck to the right. Motor and sensory function was normal and jerks were normal. There was no tenderness in the anterior cervical spine but there was pain on stressing the upper limb girdle. In Dr Pentis’s opinion the plaintiff sustained a musculo-ligamentous injury to his neck and occipital region leaving him with residual problems. At the time of the examination Dr Pentis considered that common sense, gentle exercises and analgesics would be the main stay of treatment for the plaintiff’s condition which could be reviewed the possible MRI as an alternative form of management if the condition deteriorated.

74. [74]
    Dr Pentis said that the plaintiff’s job as a truck driver was strenuous on the neck and may find that it causes problems long-term leaving him with a persistent impairment and a propensity to easier aggravation of the spine because of the effects of the accident. In his oral evidence^[103] he said there was no reason why the plaintiff would not be able to continue as a truck driver provided he did not do anything really heavy and he then referred to the truck driving job as requiring the driver to tie down straps or load up or even climb up on top of the truck which he said would stir up the problem.  He said that was not to say those activities could not be done but there would be problems with them and by the end of the day there would be some tiredness and soreness. 

75. [75]
    In the result he assessed the plaintiff’s whole person impairment as an 8% cervical DRE impairment resulting form the altered and restricted range of movement of his spine. He identified the difference between his opinion and that of Dr English who examined the plaintiff on behalf of the defendant as being the absence of any signs of restricted movement or any other gross signs being examined by Dr English. Dr Pentis agreed that it was possible to have a patient present at varying times with varying symptoms and to find that they don’t present exactly the same each time.^[104]

Dr English

76. [76]
    Dr English examined the plaintiff on 29 July 2008 some two months after the examination by Dr Pentis. He found that the plaintiff had sustained a musculo-ligamentous injury to his cervical region with intermittent pain and symmetrical range of motion with no evidence of structural injuries. He assessed the plaintiff under DRE cervical Category 1 with 0% impairment but thought it reasonable to award a 2% permanent impairment for the pain and suffering experienced by the plaintiff as a result of the accident. He agreed with Dr Pentis that the range of movement, the differentiating feature between their respective opinions, is something that will vary from day-to-day with the person’s symptoms^[105] but said that unless the range of movement, which he considered not a reliable hard find of a significant neck injury, can be demonstrated in the same reduced range in the same person on two or three separate occasions preferably with separate examiners, then that may justify a DRE Category 2 which Dr Pentis attributed to the plaintiff.  He said that in general unless that could be achieved then that category should not be applied.

Conclusion on the orthopaedic evidence

77. [77]
    The question then is whether the plaintiff’s symptoms presented to Dr Pentis on 27 May 2008 but absent two months later on 29 July 2008 at the examination by Dr English is an example of what was agreed by both doctors namely that symptoms can vary from examination to examination or whether on the other hand the symptoms presented to Dr English reflected a further improvement in the plaintiff’s condition. Given the two different presentations as to the important aspect of range of movement above discussed I am influenced by Dr English’s caveat on accepting a reduced range of motion based on one examination only.

Psychiatric Evidence

Dr Byth

78. [78]
    Psychiatric evidence was called by the plaintiff from Dr Byth whose report dated 4 June 2008 is Exhibit 22. Dr Michael Leong was called by the defendant and his report dated 8 August 2008 is Exhibit 24. At the end of the day there was not a great deal of difference in the opinions of the two doctors in the assessment of the plaintiff’s condition. Both diagnosed an adjustment disorder with anxiety and depressed mood with Dr Byth going a little further, and opining that the plaintiff’s flashbacks of the accident when he drives and on waking from sleep could arguably justify the additional diagnosis of Post Traumatic Stress Disorder (PTSD).^[106]  Dr Byth found the plaintiff to be socially withdrawn and in discomfort in his neck during his interview of him.  He was mildly depressed and mildly anxious with a thought content preoccupation with pain in his neck and with headaches.  He was upset by the restrictions this placed on his work and home activities.  He also presented as being preoccupied with the accident itself which he relived in flashback memories when driving and waking from sleep.  He had depressive thought content with ideas of reduced self worth and hopelessness and had suicidal thoughts since 2007 without any current suicidal intention.  According to Dr Byth the plaintiff’s recall of recent and remote events was mildly slowed by his social withdrawal from anxiety and depression.^[107]

79. [79]
    Dr Byth thought that the plaintiff would benefit from specialist psychiatric treatment including CBT, EMDR, desensitisation and higher doses of Lovan at a cost of $3,000. This treatment he thought would result in a partial improvement, but would leave the plaintiff with chronic mild to moderate anxiety and depression arising from the accident.

Dr Leong

80. [80]
    Dr Leong found that the plaintiff’s current problems included chronic pain in his neck and headaches aggravated by excessive physical activities. He reported sleep disturbance, difficulty getting comfortable, restless and broken sleep and being startled on awakening. His energy was poor and he felt fatigued. He had a loss of interest and motivation and was socially withdrawn. He was moody and cranky, emotional and depressed, anxious and hypervigilant in traffic, with poor memory and concentration. He had increased his alcohol intake, and increased weight, and had both financial and marital stressors.^[108]  Dr Leong recommended injury adjustment counselling for 6 to 8 sessions with a clinical psychologist and increasing the anti-depressant medication, Lovan, to at least 40 mg per day, or alternatively, using another anti-depressant, Efexor XR, 150 – 225 mg per day.

81. [81]
    As to the assessments of the doctors by reference to the six scales in Schedule 6 to the Civil Liability (Regulation) 2003 they agreed that the appropriate classifications for each of the classes: Travel, Social functioning and Concentration, Persistent and Pace was class 2, mild impairment.  They differed in their opinions in relation to the following and in the following respects:-

By reference to the Whole of Person Percentage Impairment Conversion Table in Schedule 5 to the Regulation, Dr Byth arrived at a figure of 7% and Dr Leong 5%.

82. [82]
    In my view the opinion of Dr Leong is to be preferred to that of Dr Byth as more closely describing the plaintiff’s condition. I consider Dr Byth’s opinion as to the plaintiff’s symptoms and the impact of the plaintiff’s injuries on him to overstate the position. I am unconvinced that what I see as a relatively minor accident could have resulted in the injuries to the degree described by the plaintiff to Dr Byth. I refer to his statements that he was, ‘deeply shocked’, ‘really anxious about driving trucks’, ‘scared and panicking that he could have another accident’, and depressed to the point of ‘having a lot of suicidal thoughts’. This, from a man who had driven big trucks for 22 years over 1.5 million kilometres,^[109] I could more easily accept that a driver of a sedan may retain thoughts and concerns of that magnitude, but I find it difficult to accept that feelings of such intensity would be entertained by the driver of a big rig of the type the plaintiff was experienced in driving.  I do not say the feelings were not held, but I consider they were overstated to Dr Byth, and as expressed to him, did not truly represent the picture of the plaintiff’s condition, nor do they presently describe that condition.

Assessment of Damages

General Damages

Neck Injury

83. [83]
    The plaintiff’s general damages falls to be assessed pursuant to the multiple injury provisions of Schedule 3 of the Civil Liability Regulation 2003.  As to his muscular-ligamentous injury to his neck an occipital region,   the parties agree that this injury is a moderate cervical spine injury within Item 88 of Schedule 4 of the Regulation with an ISV range of 5 to 10.  I agree with that and them to determine the appropriate ISV.  The plaintiff contends for an ISV of 9.  The defendant says 6, which I agree with.  I accordingly assess the ISV at 6.

84. [84]
    The extent of the whole person impairment is an important consideration, but not the only consideration affecting the assessment of an ISV.^[110]  Greater weight is to be given to assessments based on AMA 5^[111] and both orthopaedic surgeons have assessed by reference to that criteria.  Impairment ratings determined by reference to AMA 5 are designed to reflect functional limitations rather than disability and seeks to estimate the impact of the impairment on the individual’s overall ability to perform common activities of daily living excluding work.^[112]  In the result I assess the ISV at 2%.

Psychiatric Injury

85. [85]
    As to the psychiatric injury, namely, the adjustment disorder with depressed mood, I indicated my preference for the opinion of Dr Leong that the plaintiff has a whole of person impairment of 5%. That qualifies as a mild psychiatric impairment in terms of Schedule 6 to the Regulation and a moderate mental disorder under Item 12 of Schedule 4. The ISV range in that Item is 4 to 10. Pursuant to the definition of dominant injury in Schedule 7 that renders the cervical spine injury the dominant injury.

86. [86]
    The defendant submits that to adequately compensate the plaintiff for his psychiatric injury, the appropriate course would be to increase the ISV of the dominant injury from 6 to 10. The plaintiff, on the other hand, says that there should be an uplift from what he says is the appropriate ISV of 10 to 13 under Regulation s 4. I agree with the defendant’s submission on this issue and accordingly increase the ISV for the dominant injury to 10 to take account of the plaintiff’s psychiatric injury. That translates to a damages award of $11,000 pursuant to s 62 of the Civil Liability Act 2003 (“Act”).

Past Economic Loss

87. [87]
    The plaintiff claims lost wages of $1,550.57 attending doctors and physiotherapist,^[113] and a further $1,964.34 (a total of $3,514.94) being lost wages from 24 September 2007 to 8 October 2007 when he was unable to work.  To that he adds $2,000 he says had been saved by him through his employer’s wage retention scheme.  He says he spent that sum through his time off work.^[114]  Accordingly, the total claim for past economic loss is $5,514.91.  The defendant says the appropriate figure is $3,550.^[115]

88. [88]
    I cannot see any basis for the plaintiff recovering the $2,000 savings spent during his time off work as well as compensation for lost wages during that time. That would be double dipping. I assess past economic loss at $3,550 with superannuation at 9% of $320.00 and interest at 3.27% of 2.33 years of $270.00 a total of $4,140.00.

Loss of Future Earning Capacity

89. [89]
    Relying on the earnings of Mr Saunders in the mine being what he could have earned compared with his actual earnings,^[116] the plaintiff claims a loss of $360.00 per week to aged 60 (13 years) which he says equates to $180,828 using a 5% discount multiplier.  Discounting that figure for the normal vicissitudes of life he claims $125,000 for this aspect of future economic loss.

90. [90]
    The plaintiff put forward no authority for the claim nor did the defendant in rejection of it. The obvious authority on the issue is Malec v Hutton^[117] where Deane, Gaudron and McHugh JJ^[118] said:-

“When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred.  A common law court determines on the balance of probabilities whether an event has occurred.  If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.  Hence, in respect of events which have or have not occurred damages are assessed on an all or nothing approach.  But in the case of an event which is alleged would or would not have occurred, or might not yet occur, the approach of the court is different.  The future may be predicted and the hypothetical may be conjectured.  But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof.  If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring.  The probability may be very high – 99.9% - or very low – 0.1%.  But unless the chance is so low as to be regarded as speculative – say less than 1% - or so high as to be practically certain – say over 99% - the court will take that chance into account in assessing the damages.  Where proof is necessarily unobtainable, it would be unfair to treat as certain a prediction which has a 51% probability of occurring, but to ignore altogether a prediction which has a 49% probability of occurring.  Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability.  The adjustment may increase or decrease the amount of damages otherwise to be awarded …”

91. [91]
    This calls for an assessment of the probability the plaintiff would have taken up work in the mines. Despite the factors of his less than perfect marriage at the time and the challenges presented by his daughters which he readily admitted, I consider that that probability should be assessed at 50%. I accordingly award $62,500 for this being half the $125,000 claimed by the plaintiff.

The plaintiff’s future economic loss involves two considerations.  First, the loss of the opportunity to work in the mines at a higher level of remuneration and second, the risk that in the future he will not be able to retain employment.

92. [92]
    The plaintiff claims a further $50,000 for future economic loss on the basis that he may in the future be unable to maintain his employment, or unable to find further employment or employment at the same level of remuneration as he currently has. The plaintiff referred me to a number of cases.^[119]  Presently the evidence is that the plaintiff continues to work as he did prior to the accident albeit with a sympathetic employer rostering him around his fluctuating health when that is possible.  Although the plaintiff is presently coping with his work, the fact remains that he continues to experience headaches and some neck pain which injuries have not cleared up since April 2007.  It may well be that the plaintiff is able to work out his working life to age 65 without any impediment to his earning capacity, but I consider there is some risk that that may not be so.  In the event that that risk crystallised the plaintiff may find himself in a position where he is unable to find other employment or at least other employment with the same remuneration.

93. [93]
    Assessing future economic loss is always a matter of some speculation, but in all the circumstances I consider that an appropriate global figure for the plaintiff’s future economic loss for this aspect should be $25,000. Accordingly, the total damages for future economic loss will be $90,000 with superannuation at 9% ($8,100) a total of $98,100.

Past Special Damages

94. [94]
    The plaintiff claims $4,174.70 made up as follows:-

He also claims interest on components (a) and (c) of $53.00; a total of $4,227.05.

The defendant argued for a figure of $1,258.00.  I award $4,227.05.

Future Special Damages

95. [95]
    Dr Byth in his assessment costed the future treatment he thought the plaintiff needed at $3,000. Dr Leong did not descend to that particularity. In all the circumstances I consider the plaintiff should recover the sum of $3,000 as future special damages to cover the cost of that treatment. The plaintiff also claims a global figure of $3,000 for future analgesic medication without any particularity. I award $1,000 in that regard making the total future special damages award $4,000.

96. [96]
    The plaintiff’s claim is dismissed. Subject to any other order I may make on costs after hearing submissions from the parties, the plaintiff to pay the defendant’s costs on a standard basis.

Summary of Damages Assessment

Schedule “A”

Plaintiff’s Diarised Neck Pain

Schedule “B”

Plaintiff’s Diarised Headaches

Schedule “C”

Plaintiff’s Diarised Depression

Schedule “D”

Plaintiff’s Diarised Nervousness and Concentration Difficulties

Schedule “E”

Plaintiff’s Diarised Tiredness, Sleeping Difficulties and Flashbacks