James v Surfers Jet[2015] QDC 233

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 26 April 2010 the plaintiff was a passenger on a jet boat operated by the defendant, sitting in the end seat of the back row. At one point during the ride the plaintiff said that he was thrown into the air, and when he came down on the seat he felt pain in his back. It emerged that he had fractured a vertebra. The plaintiff alleges that this injury was caused by the negligence of the defendant in the way the boat was operated, but there was no evidence that any specific thing which should not be done by a jet boat operator was done on this occasion; the plaintiff’s case was essentially one of res ipsa loquitur. The defendant said that on this occasion he did what he does on every jet boat ride that he conducts, and that he has never known of any passenger being injured in this way before. Inferentially, his defence was that the plaintiff’s injury was caused by some inherent weakness in the plaintiff’s spine, or was otherwise suffered without negligence on his part. Liability and quantum are both in issue.

2. [2]
   The proceeding was brought against a business name, as permitted by the rules. The defendant said that he and his wife carried on business under the name “Surfers Jet” at the relevant time: p 50. There was evidence that that was a registered business name: Exhibit 1, tab A. The Uniform Civil Procedure Rules 1999 (“UCPR”) r 91 applied, but sub‑rule (2) was not complied with. The notice of intention to defend filed by Mr Lines on 14 May 2013 was entered in the name “Surfers Jet”, only a post office box was given as the residential or business address, and the address for service, and it was signed by Mr Lines under the description “driver”. A further notice of intention to defend, which suffered from the same deficiencies, except that it was signed by Mr Lines with the description “defendant”, was filed on 16 July 2013.

3. [3]
   The defendant also did not comply with sub-rule (3), but the notice of intention to defend has not been set aside. There was an application made to the Court, but it was to dispense with the defendant’s signature on the request for trial date, and an order to that effect was made by another judge on 28 November 2014. In the circumstances I am prepared to treat the notices of intention to defend as notices filed by Mr Lines personally, and to treat the proceeding as being brought against him personally. The negligence alleged by the plaintiff was on grounds which would be applicable to him in his capacity as a driver of the jet boat: see further amended statement of claim filed 24 July 2014, para 11.

More details about the facts

4. [4]
   On 26 April 2010 the plaintiff was attending a work function with his wife at Paradise Point: p 5. The organisers had arranged for the participants to have a jet boat ride provided by the defendant, using a boat a photograph of which is Exhibit 3. There were 14 passenger seats in the boat and a seat for the driver, at the front. The defendant explained that a jet boat is propelled by a jet of water that can be steered, and has no propeller or rudder, or indeed any keel: p 52. The boat is designed to slide at a much lower speed than would a normal boat: p 52. This vessel was built in New Zealand in 2004 to be used as a jet boat on the Shotover River: p 51.^[1]The defendant has not modified the boat: p 55.

5. [5]
   The plaintiff sat in the seat at the starboard end of the rear row, with his wife next to him. The seats had only limited padding,^[2]and there was in front of each seat a bar to hang on to. The plaintiff said that the driver of the boat introduced himself and explained what he would be doing, but that there was no safety briefing: p 6. The boat proceeded to an area on the Broadwater, not far from South Stradbroke Island, and did a 360 degree spin. He was holding onto the rail in front of him, as tightly as he could: p 7. He said that the boat came in pretty fast, the nose of the boat buried itself in the water and he went up in the air, and when he crashed back down onto the seat he felt excruciating pain in his back. Later he said that as the boat performed the manoeuvre, he was thrown clear of his seat, and then came back down onto it: p 7. He was unable to sit down because of the pain. The boat stopped, and then proceeded slowly back to the pontoon.

6. [6]
   The plaintiff’s wife confirmed that she was sitting next to her husband: p 42. She said that the driver spoke about mobile phones and sunglasses on the boat, and when they were out on the Broadwater demonstrated a hand gesture that he would give before he did the big turns. He did give that gesture prior to this particular turn: p 43. During the turn she said she was also tossed up out of her seat, and as she came down she heard her husband scream: p 43. He subsequently appeared to be in a great deal of pain. When they got back, the plaintiff gathered up his belongings, his wife drove him home, and he rested until he went to the doctor: p 44.

7. [7]
   The plaintiff also called evidence from another person who was on the jet boat ride, although she and her husband were sitting in the front seat beside the driver: p 39. She said that when they were out on the Broadwater the driver of the boat explained that he would make a particular gesture to tell them that he was going to do a spin so that they could brace themselves, and that was what occurred: p 40. There was a handle in front of her seat for her to hang on to: p 41. She said that it was quite fast and exciting, that she dislodged slightly from her seat, as did her husband, though she was holding on as best as she could. Her husband came to her side of the seat to some extent. She agreed that she had bounced up in the air a bit, and evidently neither she nor her husband were injured. After the spin the plaintiff was complaining of pain and they were taken back to the dock: p 41.

8. [8]
   The defendant, Mr Lines, gave evidence. He has held a commercial skipper’s ticket since April 2000: p 51. He was the driver of the vessel on 26 April 2010, and he agreed that he loaded 14 passengers including the plaintiff who sat in the rear starboard side seat. He said that at the dock he introduced himself, explained where lifejackets were kept and how long the trip would go, explained speed limits and said that they would be doing some spins during the trip and demonstrated the spin signal that he would give before each spin. He said he also explained how to brace for the spins, by holding onto the rail in front of the seat, and pushing themselves back into their seats with their feet on the floor. He said they went out into the Broadwater, and when he found calm water close to South Stradbroke Island he executed what he described as a normal spin to port whereupon he heard the plaintiff say that he had hurt his back. He took the plaintiff back to the jetty. The plaintiff declined his offer to call an ambulance. The plaintiff and some others left the vessel, but they were replaced and he conducted another trip.

9. [9]
   According to the defendant, in a spin the back of the boat begins to turn out but the boat continues to move forward, the stern of the boat rises out of the water and the bow goes below the water level, but then comes back up after a short time: p 53. When the stern rises out of the water power is cut off, since otherwise air would be sucked into the engine. The boat actually turns a bit over 270 degrees. He said that the manoeuvre was not done going through waves, and that most of the weight of the vessel was at the rear so that the stern of the boat did not rise up very quickly during the turn, there was a big slide first and then the stern went around and the process takes a few seconds: p 54. The defendant said he had taken 40,000 people as passengers for spins, and the plaintiff was the only injury: p 54.

Credibility

10. [10]
    When cross-examined on his credit, the plaintiff admitted that when he had filled in a form for a medical examination before receiving a taxi driver’s license he had failed to disclose a number of medical conditions from which he was in fact suffering: p 19, 20. As well his evidence that he was intending to work until he was 70 (p 24) was inconsistent with his wife’s evidence that they were planning to retire in February 2016: p 45. In view of this, I am wary about the plaintiff’s reliability. There was some challenge to parts of the defendant’s evidence, but his credibility generally was not attacked, nor was any particular reason shown to doubt his evidence.^[3]In general I accept his evidence. There was no challenge to the credibility of any other witness.

Investigation

11. [11]
    The incident was investigated in October and November 2010 by a Marine Officer following a maritime incident report: p 26, 28. During that investigation he interviewed the defendant who, when asked whether it was normal for people to come out of their seats during spins, had replied that it does happen: p 27. The Officer had been conducting investigations into marine incidents since about 2002, but had not been involved in a lot of incidents involving jet boats: p 28. Those that he had investigated concerning jet boats involved close quarter situations or collisions or groundings, and he did not recall another matter he had investigated personally involving an injury to a passenger on a jet boat: p 29. The defendant’s vessel held a compliance certificate from an accredited surveyor to indicate that it complied with the safety standards in force for such a vessel at the time it was registered: p 36. At that time this did not include the provision of seatbelts, nor did the current regulations require the provision of seatbelts for such a vessel: p 37.^[4]There was no requirement that the passengers wear life jackets: p 38.

Medical Evidence

12. [12]
    The plaintiff attended his GP on 28 or 29 April 2010^[5]where according to the GP’s notes the plaintiff was complaining of low back pain but with no radiation, and had good extension and flexion though his lateral flexion was reduced. He was treated conservatively, but returned to the GP on 17 June complaining that he was still suffering from back pain mainly in the upper lumbar region. An x-ray revealed a compression fracture of the T11 vertebra. Treatment was again conservative, though he was later referred to a neurosurgeon who on 24 August 2010 operated on the vertebra. An MRI scan on 7 September 2010 showed a T11 vertebral body fracture. There were subsequently a series of facet joint injections, and on 14 October 2010 there was further surgery involving a T9 to L1 posterior fusion, though even this left the plaintiff with persisting mid-back pain.

13. [13]
    The plaintiff was seen by a neurosurgeon, Dr Campbell, on 19 August 2011 for the purposes of a report: Exhibit 1. Dr Campbell noted the history of treatment as set out, and that the plaintiff continued to complain of mid-back pain and stiffness, daily, with pain radiating down to the lower back region, aggravated by walking, standing, prolonged sitting, pushing a lawnmower or other household duties. There was no prior history of mid-back pain. At that time he was taking significant painkillers, Di‑Gesic and OxyContin, for pain relief as required. There was at that stage decreased flexion and extension, and tenderness and guarding over the region of the scar, though lower limb power reflexes and sensation were normal.

14. [14]
    Dr Campbell thought that his condition had reached maximum medical improvement. In accordance with the AMA guide, 5^th edition, DRE category 4, the plaintiff was suffering a 28% whole person impairment. He would have restriction of movement interfering with social activities, walking or sitting for prolonged periods. He did not consider any further treatment was appropriate, although some physiotherapy might be needed from time to time to deal with any acute exacerbations of the injury. The plaintiff was unable to perform heavier gardening work. The plaintiff would be able to cope with sedentary work as long as he was not required to sit for prolonged periods of time or lift equipment, but he would have difficulties with work on site, and may need to reduce his work hours if he is having continuing difficulties at work.

15. [15]
    Under cross-examination Dr Campbell said that he would probably see one or two crush fractures of vertebrae arising from boat rides in general in a year.^[6]Usually they occur in rough weather with the person being thrown up and down unexpectedly and landing heavily. He said that the distance a person would have to be thrown into the air and fall on their posterior onto a padded seat to cause a T11 fracture was variable depending on the person and their bone structure and what they are landing on and how briskly they are thrown up and down, but he would think anything from half a metre to get a significant injury: p 31-2. The injury was similar to that suffered by someone in a four-wheel drive vehicle which hits a washout on a beach. The most common sites for such an injury are T11, T12 and L1: p 33. He said osteoporosis could play a role in older patients, but not usually degenerative changes: p 32.^[7]Dr Campbell did not think it unusual that only one person in the boat sustained an injury, because of the various factors which can be relevant.

16. [16]
    Dr Campbell said that it was possible for a person to have a fracture of the vertebra without being aware of it, so that it was possible that the fracture occurred on a prior occasion, though it was difficult to say: p 32. However after looking at the images from the MRI scan, he said they indicated that the fracture was either at the time of the reported accident or after it, rather than a pre-existing fracture: p 33. He said pain levels can vary considerably with a fracture of the vertebra, but this was a severe fracture which would produce pain in the vast majority of cases: p 34. He thought that greater padding on the seat would help avoid such an injury, as would a chance to brace oneself or a seat belt which prevented one from getting too high above the seat: p 33.

Duty and breach

17. [17]
    It is clear that the defendant, as the operator and driver of the jet boat, owed a duty of care to the persons who are riding on it as his passengers.^[8]It was plainly foreseeable that a want of reasonable care on his part for the safety of his passengers could lead to their suffering injury. For example, if he failed to keep a proper look out and as a result collided with another vessel and a passenger was injured, he would be liable for the injuries to the passenger in the same way that the driver of a motor vehicle who failed to keep a proper look out and as a result collided with another vehicle would be liable for the injuries to a passenger in the vehicle. The possibility of injury to a passenger is plainly foreseeable, even if the situation is such that, if nothing goes wrong, the actual risk of injury was almost nil, so that the likelihood of the injury occurring was quite low.^[9]The jet boat ride involves travelling at some speed, and undertaking manoeuvres which, at the very least, produces effects for the passengers rather different from just sitting quietly on a seat.

18. [18]
    The defendant as an experienced jet boat operator was aware of this, and the admission he made to the marine officer indicated that he was aware that people did, at least on occasions, come out of their seats during spins. In evidence the defendant was more frank, admitting that passengers (and he) would bounce out of their seats on a daily basis, mostly when going over waves: p 60. In addition, the defendant said that he explained to the passengers how to brace for the spins, and told them to hold onto the rail in front of the seat and push themselves back into their seats. That shows that it was foreseeable that conditions would be created where it would be appropriate for the passengers to be hanging on, and that this was known to the defendant. Accordingly, it is I think obvious that there was a duty owed by the defendant to the plaintiff to take reasonable care to avoid causing him physical injury.

19. [19]
    I should say that I was not referred to any other decisions involving injuries suffered by passengers in jet boats, and the only case that I have been able to find myself was Harwood v Priestley (1997) 6 Tas R 383. That was a decision of the Full Court of Tasmania, but on an interlocutory appeal as to the operation of certain provisions of the Evidence Act in relation to the taking of evidence on commission. The issue arose in the context where the plaintiffs claimed damages in respect of the death of a resident of the United States of America who was alleged to have died as a result of injuries sustained while riding as a passenger on the defendant’s jet boat at New Norfolk on 2 March 1991: p 385. The factual basis of the claim was irrelevant to the point the Full Court had to consider, and apart from noting that there was an allegation that the defendant had driven the vessel negligently, nothing was said about it. I have been unable to find a decision on the trial of the matter, which may well have been subsequently compromised. Although jet boats have been operating for a long time in New Zealand, the existence of a no fault accident insurance scheme since 1974 means that after then there will be no New Zealand Court decisions dealing with allegations of negligence on the part of jet boat operators.^[10]

20. [20]
    The existence of a duty of care however does not mean that, if an injury is suffered while the duty is operating, there will necessarily have been a breach of that duty. At common law, the duty was only to take reasonable care to avoid or minimise the risk of injury to the person to whom the duty was owed. This involves an inquiry to identify, with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk.^[11]The matter is now regulated in Queensland by the Civil Liability Act 2003 (“the Act”), s 9 of which provides:

“(1) A person does not breach a duty to take precautions against a risk of harm unless—

1. (a)
   the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and

2. (b)
   the risk was not insignificant; and

3. (c)
   in the circumstances, a reasonable person in the position of the person would have taken the precautions.

3. (2)
   In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant thing)—

1. (a)
   the probability that the harm would occur if care were not take;

2. (b)
   the likely seriousness of the harm;

3. (c)
   the burden of taking precautions to avoid the risk of harm;

4. (d)
   the social utility of the activity that creates the risk of harm.”

21. [21]
    There are two other matters to be considered. The first is that it is not necessary to foresee the precise injury which occurred, but rather injury of a given description, formulated by reference to the nature of the risk which ought to have been foreseen.^[12]The authorities indicate that nothing very precise in this regard is necessary, and in the present case I think it is sufficient for it to have been reasonably foreseeable that a passenger could suffer some physical injury as a result of being thrown around during the manoeuvres, specifically the performance of the spin, of the jet boat. The other consideration worth noting is that the assessment has to be undertaken prospectively, rather than by with the benefit of hindsight and with reference to the particular harm which has resulted.^[13]I do not understand that s 9 requires a different approach to the consideration of whether a duty of care has been breached.

22. [22]
    Working through then the factors dealt with in s 9, it is appropriate to begin with those in subsection (2). There is very little evidence of the probability that harm would occur if care were not taken, since there was no evidence that injuries of this kind occurred regularly as a result of the operation of a jet boat doing a spin. Injuries of this kind do occur, as shown in the evidence of Dr Campbell, but from his evidence they appeared to be associated more with a small boat negotiating rough water, and there was no evidence that the water here was other than smooth. He said that the position was similar to that where a four wheel drive hits a washout on a beach, which I take to be the equivalent of a severe pothole, which one would expect would cause a fairly severe jarring to the spine. The defendant’s evidence that he has given a large number of other people rides exactly the same way without injury being suffered suggests, if it is accepted, that the probability of harm occurring from conducting a spin with this jet boat in the way the defendant conducted it was quite low.

23. [23]
    It may be, of course, that that evidence is not reliable and should not be accepted, but it was not challenged in cross-examination and there is no evidence to contradict it. The fact that the Marine Officer had not personally investigated an example of personal injury involving a jet boat passenger does provide some support for the proposition that such injuries are rare. The problem for the plaintiff is that there is simply no evidence on the other side; there is no evidence that such injuries are other than rare. There was no particular attack made on the general credibility of the defendant in cross-examination, and in those circumstances I do not consider that I am justified in rejecting the defendant’s evidence that he has conducted a large number of these rides previously without injury materialising. In those circumstances, it seems to me that the probability that harm would occur if care were not taken was low.

24. [24]
    As to the likely seriousness of the harm, it is I think obvious enough that serious harm can result from spinal injuries, or indeed from any physical injury when people are thrown about and might collide with each other or parts of the boat. In circumstances where the evidence is that the chance of people suffering any injury from being thrown around in this manoeuvre is very low, it is difficult to generalise about the sort of injury which might actually be suffered, but obviously at least in theory there is some potential for serious injury if the risk of injury materialises in a particular case.

25. [25]
    As to the burden of taking precautions to avoid the risk of harm, the difficulty that I have is that, in circumstances where the risk of injury is very low, it is not at all clear what it was that if done would in fact have avoided the risk of injury in this case. The difficulty here is that the defendant said that what he did in this case was no different from what he always does in performing a spin with a jet boat, which has not resulted in injury in the past. Assuming that the plaintiff’s injury was in fact caused by his being thrown up in the air and then dropping again onto his posterior, it is not at all clear what it is that the defendant could have done to avoid the risk of that harm. This inquiry is perhaps closely related to the inquiry in the next paragraph, in circumstances where there was no particular social utility in the activity the defendant was carrying on, other than as a source of enjoyment and amusement for the participants. If it be the case that performing spins in jet boats necessarily produces a risk of significant injury to the spine in the passengers, there may well be a question of whether in those circumstances it was appropriate to do spins in jet boats at all, but the difficulty is that it is not at all clear that that was the situation here.

26. [26]
    Accepting that the plaintiff in fact suffered his injury in the way described, the crucial thing that I do not know, in the present case, is whether this occurred because the defendant did something which was not ordinarily done, either by him in particular or by reasonable jet boat operators in general, and which, if it had not been done, would have avoided the plaintiff’s injury. I mention this because I have looked at a number of other cases where plaintiffs have suffered injury while engaged in recreational activity, where there has been evidence showing that the injury was suffered because the operator of the activity did something which ought not to have been done in the particular case, and which had the effect of increasing the risk of injury, which risk in fact was manifested in the particular case.

27. [27]
    In Baresic v Slingshot Holdings Pty Ltd [2004] NSWCA 464 the plaintiff suffered a severe neck injury on an amusement ride, where she and her husband were strapped into a capsule which was then launched into the air on two wire cables which supported it while it bounced around a bit until it calmed down and was then lowered to the ground. In that case it was held that the injury was foreseeable, particularly in a context where the ride was not carefully managed. The evidence in that case was that at the time the capsule was released, which was the point at which there was an unusually high gravitational force exerted on the occupants, the plaintiff’s head was not in the position where it ought to have been, since the plaintiff was at the time attempting to attract the operator’s attention and say something to him. The Court held that this ought to have been apparent to the operator, and that there was a breach of duty of care on the part of the operator in releasing the capsule while the plaintiff’s head was in that position.

28. [28]
    The operations manual for the ride contained an instruction that the controller and the assistant controller ought to confirm visually that the riders’ heads were back in the headrest before releasing the ride, which had obviously not happened. In those circumstances, the New South Wales Court of Appeal, reversing the decision of the trial judge, held that the plaintiff’s injuries were caused by the negligence of the operator. In that case however there was evidence that the plaintiff was injured because something was done on this occasion which would not ordinarily be done, and there was evidence that at the time of the injury the operator ought to have known that this ought not be done.

29. [29]
    Another case is Hume v Patterson [2013] NSWSC 1203. The plaintiff suffered a catastrophic injury when engaged in wake-skating on the Tweed River, something apparently similar to riding a water ski except that it was undertaken at slower speed.^[14]The practical resolution of the matter turned on the question of whether the operator of the boat had stayed in deep water, or whether the accident occurred because the plaintiff happened to fall off the skate at a point where the water was only about 1m deep because of the presence of a sand bar, as a result of the boat operator straying outside the navigation channel which marked the area of water which was deep enough to be skated in safely. There was evidence that it was common, indeed usual in the case of relatively inexperienced skaters, for skaters to fall off, and if one falls off a skate there is a risk of hitting one’s head on the bottom if the water is shallow enough for that to occur, a risk which can be avoided or at least minimised by keeping the boat in relatively deep water. Once the trial judge found that the boat had in fact strayed into water that was shallow enough that there was a significant risk of injury if the skater fell at that time, the plaintiff succeeded. Again, that was a case where it was proved by evidence that the defendant operator had done something which ought not to have been done in the conduct of the activity in question.

30. [30]
    In Rogers v Interpacific Resorts (Australia) Pty Ltd [2007] QSC 239 the plaintiff suffered injury to his eye when riding as a pillion passenger on a jet ski driven by his son while they were staying at a resort operated by the defendant, and had booked the use of the jet ski for a period. The Court found that the injury happened because the son was not operating the jet ski properly, and that this was as a result of the son not having been given proper instruction, as a novice jet skier, when given the use of the jet ski. There was evidence that the instructions in fact given did not comply with the sort of instructions ought to have been given to a novice jet skier, both in terms of the instruction manual provided with the jet ski when it was supplied to the defendant, and from the evidence of an experienced jet ski instructor who gave evidence about what was required for proper instruction in the case of a novice skier. There was also evidence that after the incident it was investigated by a marine officer from the transport department as a result of which a direction was issued to the defendant in relation to the briefing to be provided for inexperienced jet ski riders: [19]. In that case therefore there was plenty of evidence that the defendant had failed to give the sort of instructions which ought to have been given if it was making a jet ski available to an inexperienced user.^[15]

31. [31]
    Dr Campbell said that additional padding of the seat would help to avoid an injury such as this: p 33. The plaintiff said there was no padding on the seat: p 23. He said the seats were not padded at the time and that the padding shown in the photographs had been put in afterwards: p 25. The plaintiff’s wife also thought the seats were not padded: p 42. The other passenger could not recall whether there was padding: p 39. The defendant said the seats had some padding, one inch closed cell foam (p 66), which is consistent with the general appearance of the seats in the photographs Exhibit 3. The defendant said that he was unable to change this as it would involve changing the way the boat was designed: p 66. I suspect that what this may have meant in practice was that, if he fitted softer or more extensive padding, the boat might have to be resurveyed, but it is not obvious that that would pose any particular difficulties. In view of my concern about the reliability of the plaintiff, I prefer the evidence of the defendant on this point, and find that there was some, but not much, padding on the seats at the time.

32. [32]
    The real answer to this point is that a lack of padding was not relied on as a particular of negligence. All the particulars pleaded in paragraph 11 are concerned with the operation rather than the design of the vessel. Indeed, counsel for the plaintiff at p 61 expressly confined the plaintiff’s case to particulars:

“(a)  operating the jet boat at an excessive speed.

(b)  failing to negotiate the wake in a safe manner.

(d)  failing to warn the plaintiff to brace.”

Particulars (c) and (e) were expressly abandoned, and there was no submission advanced in support of either (f) or (g), which appear to have been tacitly abandoned.

33. [33]
    In relation to the question of speed, the defendant said that he was operating the boat flat out, going at about 30 knots which was its top speed fully loaded: p 65. The defendant denied the suggestion that he was going too fast to do the spin manoeuvre, and said that if he had been going slower, or at least much slower, the boat would not have been able to do the spin manoeuvre at all: p 62. His evidence was that in order to do the manoeuvre it was necessary for the boat to be, as he put it, “on the plane”, that is to say not simply sitting in the water, but to a large extent sliding along the top of it, and that one had to be doing 25 to 30 knots in order to do this: p 60. The proposition that the boat needed to be “on the plane” in order to perform the spin manoeuvre as described by the defendant makes sense to me, in circumstances where the manoeuvre he described involves the boat essentially rotating while sliding across the top of the water, at least in the early part of the manoeuvre, and the notion that this would not occur if the boat was not “on the plane” makes sense.

34. [34]
    There was also no evidence to contradict the proposition that the defendant had a relatively narrow speed range within which he could perform the manoeuvre at all, and that it was appropriate in order to perform the manoeuvre with a fully laden boat that he try to get the speed up to 30 knots. A vessel travelling at 30 knots is travelling at approximately 34.5 miles per hour, or a little over 55km per hour.^[16]There was no evidence that the defendant was doing more than 30 knots when he went into the spin, nor was there evidence that a reasonably careful jet boat operator would have gone into the spin at a lower speed, nor was there evidence to contradict the defendant’s proposition that it was necessary for him to be going at least close to that speed in order to perform the spin at all.

35. [35]
    The defendant also denied that it was too fast in the prevailing conditions, that is to say, the suggestion that there was something about the circumstances on this particular day which made it either appropriate to reduce the speed at which he went into the spin, or unsafe to perform the spin at all. That suggestion was denied (p 62) and there is no evidence that the speed at which he went into the spin was too fast in the prevailing conditions. Indeed, there is no evidence of the prevailing conditions except from the defendant,^[17]but he said that the manoeuvre was performed in smooth water and in calm conditions, which he said was what was required: p 54. The plaintiff’s argument was that the defendant’s evidence that there were good conditions and that the spin was the same as every other spin that he did must have been wrong because on this occasion someone was injured: p 62. This really amounts to the proposition that the defendant must have been negligent because someone was injured. I shall come back to that proposition.

36. [36]
    The next matter relied on as a particular of negligence on the part of the defendant was failing to negotiate the wake in a safe manner: para 11(b). This was a reference to the proposition alleged in paragraph 10 that the jet boat made a sharp right hand turn at high speed “crossing its wake”. The proposition in paragraph 10 that the jet boat crossed its own wake when performing the spin manoeuvre was expressly denied by the defendant.^[18]The plaintiff said that the boat crossed its wake in the course of the spin: p 7. This was the first occasion on which he had been in a jet boat (p 22) but he described having seen them do turns which he described as just a very sharp turn which involves crossing the wake. But his description of what happened to him was that the driver pulled the steering wheel hard over to the right, and the boat spun clockwise (p 22) and the back of the boat flung up in the air, and the bow went into the water, with the back up in the air and turning at the same time, and then it came down: p 23. His wife described the manoeuvre by saying that the boat turned, the back of the boat came up and jolted them forward, and she was tossed up so that her backside and her upper body were up out of the boat although she was hanging on to the bar: p 43.

37. [37]
    As the defendant described the spin manoeuvre, for most of the manoeuvre the boat is still travelling in the same direction, but rotating in one direction in something like a slide across the top of the water, until the rear of the boat rises out of the water when he has to cut off power. The boat would slide until it goes off the plane and then continues to turn until it gets to about 270 degrees: p 52, 53. No other witness spoke about the jet boat crossing its wake, and the description which all of them, even the plaintiff,^[19]gave matched the description of a spin manoeuvre given by the defendant. What I suspect may have happened is that the plaintiff had on earlier occasions seen jet boats performing a tight turn manoeuvre, which would involve crossing the wake, when he was out fishing: p 22. In all the circumstances, I do not accept the evidence of the plaintiff on this, and find the defendant did not cause the vessel to cross its wake. In these circumstances there can be no question of negligence in failing to do so in a safe manner. Paragraph (b) is not made out.

38. [38]
    As to the question of whether the plaintiff was warned to brace, the defendant’s case on this was that before leaving the jetty he demonstrated the spin signal that he would be giving before he made the spin, and explained to the passengers how to brace for spins, by saying they should hold on to the rails in front of their seats and push themselves back into their seats with their feet on the floor: p 51. There was a conflict of evidence on this point. The plaintiff’s evidence was that there was no instructions about bracing given before they left the pontoon, but he also said that the defendant said that a particular sign with his finger indicated that they would be doing a spin: p 6. The plaintiff’s wife said that the driver spoke about mobile phones and sunglasses when they got into the boat, but then when they were out on the Broadwater gave instructions on how he would prepare them for the turns, and gave a hand gesture for the “big 360” which was what he did do before the spin manoeuvre was performed: p 43. The other passenger called referred to the driver saying when they got on the boat about what was going to happen, and “spoke about holding on tight which was obviously the best advice”: p 39. When asked whether there were any instructions given about doing spins her evidence was that this was given when they were out on the Broadwater, and that he would let us know before he did a spin so we could brace for it, and he demonstrated a motion he would make with his hand, which in fact was what he did: p 40.

39. [39]
    The plaintiff said that during the spin manoeuvre he was hanging onto the rail in front of him as tightly as he could; under cross-examination the plaintiff confirmed he was hanging onto the handrail, and said that he was not aware of his feet having left the floor: p 11. He had no idea how high he went into the air, but he went up in the air substantially.

40. [40]
    The evidence of the plaintiff’s witnesses is therefore inconsistent in relation to what instructions were given, though the effect of the other passenger’s evidence was that something was said like what the defendant claims he said, but after the boat was out on the Broadwater. The plaintiff’s wife confirmed that there was some instruction given while out on the Broadwater (p 43) and indeed the plaintiff said something to the same effect (p 6) so that this was not a situation where instruction was given while the boat was out on the Broadwater but the plaintiff and his wife who were seated in the back seat could not hear it over the noise of the engine. The proposition that the defendant would give the full briefing before he started the engine, as he claims, makes sense but in the circumstances there is no clear basis to reject the evidence of the other passenger that the relevant part of the briefing was in fact given out on the Broadwater.

41. [41]
    If I had to resolve this conflict I would prefer the evidence of the other passenger, that the relevant briefing about what to do in a spin was given on the Broadwater, but it seems to me that the effect of her evidence is in substance to support the proposition that the defendant gave instructions at some point about bracing for a spin along the lines of his testimony. There were, I suppose, three parts to the instructions: hold onto the rail in front, keep your feet on the floor, and push back into the seat. The plaintiff’s evidence was that in fact he was holding onto the rail as tightly as he could at the relevant time, and as far as he was aware he kept his feet on the floor. He also demonstrated holding the rail in a way which indicated that he was holding it at arm’s length (p 7), which would have been the best he could do to comply with an instruction to push back into the seat. On the plaintiff’s evidence, he was in substance bracing himself in the way the defendant had instructed.

42. [42]
    There was no evidence that the instructions for bracing that the defendant claimed to have given were not adequate or appropriate,^[20]and that a reasonably careful driver would have given more extensive or different instruction, so in substance paragraph (d) amounts to an allegation that the defendant did not give the instruction that he claimed to have given. I am not persuaded on the whole of the evidence that that was made out, but in any event on the plaintiff’s evidence he was in substance complying with that instruction anyway, so even if he was doing so by coincidence and without any prompting from the defendant, it follows that the absence of any instruction (if that is what happened) was not a cause in the legal sense of the plaintiff’s injury. This allegation has therefore not been made out, and neither has causation been shown in relation to it.

43. [43]
    Accordingly, the plaintiff’s case really comes down to the proposition that there must have been some unspecified negligence on the part of the defendant, because the plaintiff ended up injured. At the beginning of these reasons I classified this as a res ipsa loquitur argument, though in my opinion that principle does not apply. In Government Insurance Office of NSW v Fredrichberg (1968) 118 CLR 403 Barwick CJ at p 413 said:

“The so called doctrine is no more than a process of logic by which an inference of negligence may be drawn from the circumstance of the occurrence itself where in the ordinary affairs of mankind such an occurrence is not likely to occur without lack of care towards the plaintiff on the part of a person in the position of the defendant.”

44. [44]
    As that passage makes clear, the doctrine applies in circumstances where, although the precise explanation for the occurrence is unknown, the tribunal of fact can on the basis of its ordinary experience of life arrive at the conclusion stated. That case was concerned with a jury trial, but the same position applies in the case of a trial by judge. That is illustrated by the decision of the High Court in Lambos v Commonwealth of Australia (1967) 41 ALJR 180, where Barwick CJ, with whom the other members of the Court agreed, after stating the proposition in terms similar to those set out above continued at p 182:

“What happens in the ordinary course of mankind is either the subject of evidence or of common knowledge. Here there was no evidence whatever beyond the fact that in four years operations nothing of the kind had manifested itself in the operation of this machine. It seems to me that neither a jury nor a judge has of common knowledge any information which would warrant the inference that, when an accident of the present kind occurs the use of a complicated piece of machinery… having various components for the merest understanding of which some mechanical knowledge or expert explanation is necessary, the accident is more likely than not to have occurred due to the want of care on the part of the [employer]. In my opinion, therefore, the appellant must fail unless he establishes by evidence beyond the fact of the occurrence that the respondent was in breach of its duty towards him.”

45. [45]
    A similar conclusion was reached by the Full Court in Dwan v Farquhar [1988] 1 Qd R 234 in relation to whether the mere fact that a plaintiff had contracted AIDS as a result of a blood transfusion during a surgical procedure was sufficient to show a prime facie case of negligence against the doctors involved in performing the operation, bearing in mind the lack of information about the risk of transmission of AIDS by blood transfusion at the time this particular transfusion occurred. Ambrose J at p 249 quoted a passage from the decision in Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at 116 where four members of the Court said in a joint judgment:

“The vital condition for the operation of the principle is that ‘the accident is such as in the ordinary course of things does not happen if those who have the management use proper care.’  Indeed, to overlook or to exclude this requirement might well be thought to produce the result that the mere proof of any occurrence causing injury will constitute sufficient proof of negligence in any case where an object which, physically, has caused injury to the plaintiff is under the control and management of the defendant and the actual cause is, therefore, not known to the plaintiff and is, or should be, known to the defendant. The requirement that the accident must be such as in the ordinary course of things does not happen if those who have the management use proper care is of vital importance and fully explains why in such cases res ipsa loquitur.”^[21]

46. [46]
    That is the difficulty that I have here. It seems to me that the plaintiff in the present case has proved no more than the situation that the High Court in that passage said did not give rise to that principle, namely, mere proof of an occurrence causing injury where the defendant had the control and management of the thing that physically caused the injury. I accept that it was the jet boat under the control and management of the defendant that physically caused injury to the plaintiff, but this decision is clear authority that that is not enough. I cannot say that this is something that in the ordinary course of things does not happen if those who have such management use proper care. My ordinary experience of life tells me nothing about the operation of jet boats. The evidence in the present case suggests that the accident, in the ordinary course of things, does not happen at all. That does not help throw any light on whether, on an occasion when it has happened, it occurred because there was a failure on the part of the defendant to take reasonable care in the management and control of the jet boat.

47. [47]
    It may be of course that there was something that happened on this occasion which ought not to have happened, which if it had been revealed would have demonstrated that the defendant had failed to take reasonable care, but the plaintiff does not know what that was. That is not the only available hypothesis in my opinion. There are at least two others: first, that the defendant was taking reasonable care but that something unusual happened on this occasion which caused the injury to the plaintiff, despite that reasonable care.^[22]Second, that the plaintiff at the time had a vertebra that was unusually susceptible to injury, so that something which would have been harmless to others caused him to suffer a serious fracture. The medical evidence of Dr Campbell, which was un-contradicted and which I accept, was that how far a person would need to be thrown into the air to cause such a fracture was variable depending on the person and their bone structure (p 31) but that he would think that anything from half a metre would produce a significant injury: p 32.

48. [48]
    The plaintiff could not identify how far off the seat he was thrown, but half a metre is a long way, particularly in the case of a plaintiff who remained hanging on tightly to the bar on the back of the seat in front of him throughout, and who believes his feet did not leave the floor. I am prepared to accept that the boat performed a manoeuvre which caused the plaintiff to be thrown up to some extent out of his seat so that his posterior was no longer in contact with it, and that it then came down hard on it, but I cannot accept that he was thrown up anything like half a metre out of his seat.^[23]Dr Campbell said at p 31 that the amount of force required was variable according to the person. I am referring to this evidence not to show that this is likely to be the explanation for the plaintiff’s injury, but simply to make the point that it is a plausible hypothesis.

49. [49]
    In those circumstances, I have no evidence which supports the conclusion that, in the ordinary course of things, the hypothesis of negligence would, on the balance of probabilities, outweigh the other two hypotheses.^[24]I certainly cannot say that that is the case on the basis of my own common sense and experience of life. The plaintiff has not in this case proved facts which are sufficient to sustain an inference of negligence, on the balance of probabilities. In my opinion, the case is not taken beyond the point which the High Court in Mummery said was insufficient.

50. [50]
    The matter is not made easier for the plaintiff because the way the case has been pleaded and argued means the particular of negligence remaining for consideration is that the jet boat was operated at an excessive speed. There is no proper basis on the evidence on which I could conclude that the fact of the injury supports an inference of negligence on the ground of excessive speed, rather than one of the other available hypotheses. In order to show that the defendant breached his duty to the plaintiff in failing to perform the spin manoeuvre at a slower speed, it follows from s 9(1)(c) that is it necessary to show that a reasonable person in the position of the defendant would have done that. On the evidence in this case and considering the matters referred to in subsection (2), I am not persuaded that that was a precaution that a reasonable person in the position of the defendant would have taken. There was no evidence to support such a conclusion, and I am not prepared to draw the inference that that was the case simply on the basis of my common knowledge and the fact of the plaintiff’s injury. In those circumstances the plaintiff has failed to prove that the defendant was in breach of his duty of care to the plaintiff, and the plaintiff’s case fails.

51. [51]
    In these circumstances it is not necessary for me to consider the question of causation. Bearing in mind that the issue was very much in dispute at the trial, particularly from the point of view of the defendant, I should find expressly that the fracture to the plaintiff’s vertebrae did occur when he landed heavily on his seat in the jet boat in the course of the performance of the spin manoeuvre on the day in question. I accept that the plaintiff’s symptoms and signs at that point were consistent with the fracture of the vertebra, which was detected on x-ray not all that long thereafter, and in light of the evidence of Dr Campbell, the fracture had not occurred prior to that date. In the circumstances, however, because of the findings made earlier there must be judgment for the defendant. In this situation it is unnecessary for me to consider further the issue raised by the defendant in relation to obvious risk, or the question of quantum, but in case a different view may be taken elsewhere I should on precautionary basis say something about these matters.

Obvious risk

52. [52]
    The defendant pleaded the definition of “obvious risk” in the Civil Liability Act 2003 s 13, and alleged that the plaintiff was undertaking an activity with obvious risks as defined. There are difficulties with this allegation. The first is that it is imprecise in its identification of the particular risk that is alleged to be obvious. The pleading seems to proceed simply on the notion that there was some inherent risk in going on a jet boat ride, and it was this risk that was obvious to the plaintiff. The difficulty with that plea is that the plaintiff’s case was not put on the basis that there was negligence in failing to warn the plaintiff of a risk inherent in going for a jet boat ride, but rather that on this particular ride the boat was managed negligently by the defendant. In these circumstances, what must be obvious is the risk of negligent conduct.^[25]It may be obvious that there are some risks associated with a jet boat ride, but it does not follow that it will be obvious that there is a risk of the operator negligently attempting to perform a spin manoeuvre at an excessive speed. Apart from the question of whether negligence is obvious, the authorities indicate that the particular risk which must be considered should be defined with a reasonable degree of precision.^[26]

53. [53]
    On the basis of that analysis the relevant risk would be the risk of suffering an injury as the result of being thrown up in the air at some stage during the ride and coming down hard on the seat. The difficulty with that argument is that it would not be enough to show that it was obvious that one would be bounced around a bit in the course of the ride, but it would need to be obvious, even if unlikely, that there was some risk of being bounced around a bit to the point of suffering significant injury to the spine. I do not think that that risk was obvious. There is yet another difficulty facing the defendant, since the proposition that the risk was an obvious one does not in itself operate as a defence under the Act. It serves merely as a qualifying factor for the operation, when they apply, of ss 14 to 19, which may produce such a defence.^[27]But no such defence was pleaded by the defendant. Accordingly, in my opinion, there was no relevant obvious risk, and even if there was, there was no defence pleaded which made such a finding relevant.

Quantum

54. [54]
    The plaintiff said that he felt excruciating pain in his back, to the point where he was unable to sit down: p 7. He declined the defendant’s offer to call an ambulance. I do not think that that means that he did not suffer the injury on this occasion, but it suggests that his back was not so painful that he was unable to sit down in his car to be driven home. He did not attend a general practitioner until two or three days later. The initial examination of the GP seems to have revealed a greater degree of flexibility in the spine at that time than was the outcome when the plaintiff was examined by Dr Campbell 16 months later. Pain is now radiating to his lower back, but there was no radiation at first. The plaintiff was initially treated conservatively, even after the fracture was discovered, but he did not recover,^[28]and two separate operations on the spine have not produced any significant improvement. Indeed if anything the plaintiff’s back condition has worsened: p 23.

55. [55]
    I have already referred to the evidence of Dr Campbell, including his assessment and opinion of the plaintiff’s condition. The plaintiff verified the statement of loss and damage dated 25 July 2014 which indicated that his pain was aggravated by walking over 100 metres, standing in queues and prolonged sitting, and by performing various household tasks: Exhibit 2. He is unable to play golf, or go boating or surfing, or to attend a gym: p 24. At work he uses a specially padded chair to assist him in managing pain.

56. [56]
    The defendant in his defence did not plead to those parts of the plaintiff’s statement of claim which alleged damages. I do not think however that, even if this amounts to an implied admission on the part of the defendant, that is binding on me in the assessment of damages. That assessment is to a large extent governed by the provisions of the Civil Liability Act 2002, and the Regulation under that Act, and I am required to assess damages in accordance with those statutory provisions, a requirement which is not avoided by the fact that there is an admission on the pleadings. The deemed admission may be relevant if there are allegations of factual matters on which the Act and Regulation operate, or if there are aspects of the assessment of damages which are not regulated by the Act or Regulation, but I will deal with that as and when it arises.

57. [57]
    With regard to general damages, these must be assessed in accordance with the Regulation: Act s 62. It was pleaded and submitted that the appropriate item number in the Regulation was 91, and I agree with this: item 90 was not engaged, there being an absence of gross limitation of movement or any evidence of neurological impairment.^[29]On the other hand, there has been serious permanent impairment in the thoracic spine involving a compression of more than 25% of one vertebral body, and there have been symptoms which persist despite surgery. The plaintiff’s surgery has failed in the sense that it has not removed the ongoing pain, and the whole person impairment is greater than 24%, but there was no evidence of objective signs of significant residual nerve root damage.

58. [58]
    Taking into account the medical evidence and the age of the plaintiff, I find that the appropriate ISV is 32. There was no evidence of any relevant pre-existing condition. I am taking into account the whole person impairment as assessed by Dr Campbell of 28%, which I accept. The plaintiff’s injury was suffered in April 2010, so a money value for the ISV is determined by applying table 1 in schedule 7 of the Civil Liability Regulation 2014. This produces an amount for general damages of $49,400.

59. [59]
    Past economic loss is claimed on the basis that for about 20 weeks the plaintiff was unable to work because of his initial pain, and as a result of surgery, and that during that period he lost net wages of $26,667, and superannuation contributions of $4,946.86. The evidence however was very vague about the time the plaintiff was off work. The plaintiff in the witness box could not recall when he went back to work after this incident, but he said it was before 17 June 2010: p 15. He later said he had about 10 weeks off work from around the 16^th: p 16. The medical records (Exhibit 1, tab C) indicate that the GP provided the plaintiff with a medical certificate on 29 April; there was a further medical certificate provided on 22 June and I assume 30 June, 6 July, 14 July and 28 July. The plaintiff spent a couple of days in bed immediately after the incident, and when he first saw the GP he was given a medical certificate. The records do not indicate for how long, but presumably it was at least one week.

60. [60]
    The plaintiff said that after some unspecified period off work he did go back to work before a further period off work after the fracture was detected on an x-ray: p 15. After he saw the doctor on 22 June he was given further medical certificates (Exhibit 1, tab C) and he said he thought he was off work for about 10 weeks at this point: p 16. None of this is referred to in the claim for past loss of income in Exhibit 2, but it is clear from the plaintiff’s evidence that he was made redundant from his then employment on 20 May 2011, for reasons which did not involve the injury to the back: p 17, 18. On 9 July he began working as a taxi driver, which he coped with but with difficulty (p 21) before he obtained other employment as an estimator on 28 August 2010: Exhibit 2. He has continued to work in such a position since then,^[30]and he still occasionally does a taxi shift to earn additional money: p 24. The effect of his evidence is that, although he finds working painful because of the prolonged sitting involved, and he has to take painkillers, he has been generally coping with the further work: p 24.

61. [61]
    Overall therefore the evidence indicates that he was off work for about 11 weeks after the accident during his period of employment with his then employer. The first surgery was during the period of 10 weeks, and I expect there was some further time off work at about the time of the second surgery in October 2010 but there is simply no evidence to quantify that. Overall I would allow 13 weeks in the light of the evidence I have seen. According to Exhibit 2, the plaintiff for the year ended 30 June 2010 earned net income of $71,955, or $1,383.75 per week. Allowing past loss of income at that rate for 13 weeks produces an award of $17,988. This is more than the amount claimed in Exhibit 2^[31]but less than the amount alleged in the pleading, though my calculation is based on a slightly higher net per week income at the date of the accident than that alleged in paragraph 16.

62. [62]
    Strictly speaking, because of the lack of evidence as to the period of time off work this is a situation where I am unable to calculate precisely an award of damages for loss of past earnings, even though there is reasonable evidence of the particular weekly loss, so s 55 of the Act applies. As a consequence, I have to be satisfied of the existence of actual loss of earnings before I can award damages for loss of earnings, and therefore should award damages on the basis of loss proved by evidence to the extent that that has occurred rather than any deemed admission on the pleading. On that basis I award past economic loss at $17,988.75. In addition, past loss of superannuation is claimed. This must be calculated in accordance with s 56 of the Act, which requires an assessment of 9% of the amount allowed for past economic loss, that is, $1,619.

63. [63]
    With regard to future economic loss, this was claimed in the pleading on the basis of an economic loss of $163.35 per week for the balance of the plaintiff’s working life of eight years. Again, s 55 of the Act applies and I have to be satisfied that the plaintiff will suffer loss of earnings in the future before I can make an award of damages on that basis. The amount claimed appears to be based on the notion that the plaintiff is entitled to be compensated because his current employment is less remunerative than his former employment. The plaintiff was frank in the witness box about this, and I find that he had lost his previous employment not because of his back but because of a downturn in the building industry. That probably explains the fact that his current remuneration is not as great as his former remuneration; there was no evidence to the contrary.

64. [64]
    Indeed, there was no evidence that the plaintiff is currently any worse off financially than he would have been if he had not had the injury, or that that position will not continue. The plaintiff said that his expectation before the time of the accident was that he would work to about 70, and that was still his expectation, depending upon his back: p 24. The plaintiff’s wife said that at the time of the accident her husband had no particular retirement plans. However, they were now planning to retire in February 2016, as they had recently bought a caravan and were planning to go travelling within Australia: p 45.

65. [65]
    The plaintiff was born on 27 February 1949, and accordingly is now 66: p 21. If the plaintiff loses his current employment, one would expect that his back difficulties would put him at risk in the labour market, though he appears to have been coping with that fairly well up to now. On the plaintiff’s evidence, he actually has some four years’ working life ahead of him. In view of the wife’s evidence however, his working life at the time of trial was about 12 months. If the plaintiff retired early because of extra difficulty associated with his injury, this would be compensable, even if the decision to retire was his own choice.^[32]In the present case however there was no evidence from the plaintiff that the decision to retire was in fact prompted even in part by the continuing pain in his back; the plaintiff said nothing about this matter.

66. [66]
    If the plaintiff seeks damages for future economic loss on the basis that he will be retiring earlier than would otherwise be the case because of the continuing pain in his back, he has the onus of showing that, and he has not given any evidence in support of that proposition. In those circumstances, I am not prepared to find that the decision to retire in February 2016 was caused in a legal sense by the plaintiff’s back injury. The only matters to be covered by future economic loss are some allowance for the risk that the plaintiff’s back pain will interfere with his earnings between the time of trial and February 2016, and some risk that he might be made redundant in that same period for reasons not associated with his back pain, and experience greater difficulty in obtaining alternative employment because of his back pain. Given the plaintiff’s work history until now, the chances of either strike me as very small, and only a very modest lump sum assessment should be made for future economic loss on this basis. I would allow $5,000. Future loss of superannuation entitlements under s 56 comes to $450.

67. [67]
    The plaintiff claimed special damages in the form of medical expenses of $72,995.25 in accordance with Schedule C of the statement of claim, $3,340.97 as mileage for medical appointments in accordance with Schedule B of the statement of claim and pharmaceutical expenses of $4,000 on a global basis. The medical expenses are quite large, in part because they include an amount of $34,256 for the hospital charge in connection with the surgery in October 2010 and a gap payment of almost $6,000 for the surgeon who performed that operation. I note, however, that there are similar, though much smaller, entries in April 2012 for some further surgery performed apparently by the same neurosurgeon as in 2010, though the amounts involved are much less and presumably what was done was much less extensive. There was no evidence from the plaintiff about this surgery at all. Indeed, there was no evidence from the plaintiff about any of this, since there is no direct reference in Exhibit 2 to the medical expenses.

68. [68]
    The plaintiff appears to have been relying on the deemed admission of paragraph 27 of the statement of claim, though that is a slender reed in circumstances where it does not in terms allege that as a result of the injury the plaintiff incurred the expenses referred to in that paragraph; it merely alleges that the plaintiff claims these amounts, which proves nothing. This is quite an unsatisfactory state of affairs given the size of the claim for special damages, but I expect that the practical answer is that, if this point had been raised during the trial, the plaintiff would have reopened his case and led further evidence to prove up the amounts claimed in the schedules. In the circumstances where this assessment is on a precautionary basis only, I am prepared to leave the resolution of that point to another place.

69. [69]
    There was evidence that the plaintiff has been taking quite a lot of painkillers since the accident, and in the circumstances I am prepared to accept that a global figure for pharmaceutical expenses of $4,000 is reasonable.

70. [70]
    He also claimed for future expenses, on the basis of future medical expenses, and I think it likely that there will be occasions when the plaintiff will seek some medical attention because of flair ups in his pain, though it appears from Dr Campbell’s evidence that nothing very useful can be done to improve his condition in the future by way of medical treatment. There is also a likelihood of significant future expense on painkillers, and in the circumstances the global figure of $10,000 appears reasonable even though it remains entirely un-particularised in Exhibit 2. There is also a claim, indeed two claims, for future paid care: in paragraph 29, of $30 per week for gardening, and in paragraph 31, of two hours per week for other unspecified care. This was repeated in Exhibit 2, but no particulars were given.

71. [71]
    This is not a case within s 59 of the Act, but the evidence of the need for paid care in the future is slim. Dr Campbell in his report indicated that the plaintiff was still mowing and trimming his own lawn, having purchased a self-propelled lawnmower to help with the lawn, but could not dig or shovel. In practice his wife performed the heavier housework and, presumably, heavier gardening. Dr Campbell expressed the opinion that if gratuitous help were not available from his wife with regard to home duties it would be reasonable to hire a housekeeper one to two hours per week, and similarly reasonable to hire a gardener for one to two hours a fortnight for help in the garden. There was no evidence that any such paid care has been obtained in the past, and no evidence that his wife would be unwilling to provide such care in the future; obviously there is some risk that his wife will be unable to do so, particularly in time.

72. [72]
    The plaintiff’s wife said at the time of the incident she was doing casual work (p 44) but otherwise gave no evidence relevant the question of future care; presumably when she joins he husband in caravanning around Australia in February next year, there may be a need to provide paid gardening in any event. There is also the difficulty that there is no evidence as to what it would cost to provide the care if the need for it arose. This is not a matter on which a court should have to speculate. In all the circumstances, I do not consider that there is enough evidence upon which I could properly make a finding of any particular amount for future expense of this nature, nor do I consider that there has been a proper factual allegation in the statement of claim the deemed admission of which overcomes the need for evidence. The plaintiff has just not properly prepared his case in relation to this point, and I decline to assess damages for future care.

73. [73]
    There is also no claim for interest. Because of s 60 interest cannot be claimed for general damages or gratuitous services, but interest at the rate specified in s 60 can be claimed on past loss which produces some out of pocket loss for the plaintiff. Commonly it is allowed on past economic loss, but not past loss of superannuation benefits, and such special damages as amount to out of pocket expenses. According to the Reserve Bank of Australia website the rate for ten year treasury bonds under capital market yields – capital F2.1 at the beginning of the current quarter is 2.72%. The past economic loss was suffered over a period, but if it can be taken as having been suffered in mid-September 2000 that would provide a reasonable basis for allowing interest at the statutory rate for a period of five years. For past economic loss, that comes to $2,446.37.

74. [74]
    With regard to out of pocket specials, that would apply to the $4,000 pharmaceutical expenses and the $3,340.97 travelling expenses, and that part of the medical expenses paid by the claimant, which in Schedule C to the statement of claim is helpfully totalled at $14,068. That was incurred at various times between April 2010 and May 2014, but a relatively large part of it was incurred by October 2010. The claimant expenses in Schedule C up to the end of October 2010 came to $10,755.40, and in all the circumstances what I would do is allow interest on out of pocket specials at the prescribed rate for five years on $11,000, and for two and a-half years on the balance, on the basis that the balance of the expenses were spread over the whole period since the date of the accident. This is, I think, a sufficient degree of mathematical precision to be fair as between the parties. This produces an award of interest on out of pocket specials (assuming that they would be allowed anyway) of $2,204.00.

75. [75]
    Accordingly, my precautionary assessment of damages in this matter may be summarised as follows:

76. [76]
    In the circumstances however for the reasons I have given there will be judgment for the defendant. In circumstances where the defendant appears never to have been legally represented in relation to the proceeding, there is no question of costs.