Veyt v Stevenson[2015] QDC 84

DISTRICT COURT OF QUEENSLAND

1. [1]
   This proceeding was concerned with a claim for damages in negligence by the plaintiff against the first defendant. The second defendant is the insurer of the first defendant. For the reasons set out below the orders of the court are:

1. Judgment for the plaintiff against the second defendant in the sum of $109,628.00;
2. The second defendant pay the plaintiff’s costs of the proceeding.

Background

2. [2]
   At or about 10:00am on 23 April 2011 the plaintiff, then a 51 year old male, was riding his motorcycle in a southerly direction on Stapylton-Jacobs Well Road. Ahead of him, also heading in the same direction were, in order, an old utility driven by Mr Gordon, a large truck driven by the first defendant and a bicycle being ridden by Mr Jensen. Heading in a northerly direction towards the abovementioned vehicles was a motor vehicle driven by Mr Kelly with his wife Mrs Kelly as a passenger. The road, generally speaking, was a straight and level two lane rural bitumen road with the lanes separated by a broken white centre line and bordered by white “fog lines”.^[1] The speed limit was 100 kilometres per hour and it was a clear day with good visibility. The plaintiff was an experienced motorcyclist and the first defendant was an experienced truck driver.

3. [3]
   Approaching the driveway to 737 Stapylton-Jacobs Well Road, the utility driven by MrGordon overtook the truck driven by the first defendant. Almost immediately after that the first defendant moved his truck into the northbound lane to provide a safe distance between it and the bicycle ridden by Mr Jensen. At the same time, unknown to the first defendant, the plaintiff, who was unaware of the presence of MrJensen, had commenced to overtake his truck.

4. [4]
   Unaware of why the truck was moving into the northbound lane the plaintiff tried to abort his passing manoeuvre but lost control of his motorcycle, crashed onto the roadway and suffered a number of serious, but non-life threatening injuries. The first defendant, notwithstanding the fact that he was aware that the plaintiff had lost control and fallen off his motorcycle continued to drive in a southerly direction until he was stopped by Mr Gordon and told he had been involved in an accident.

5. [5]
   Unsurprisingly the controversy centred around whether the accident was caused by negligent driving on the part of the first defendant or on the part of the plaintiff or if, in fact, the accident was the result of negligence by both. The nature and extent of the plaintiff’s injuries and the quantum of damages that ought be awarded was also hotly contested.

Liability and causation

6. [6]
   Sections 9, 23 and 24 of the Civil Liability Act 2003 (CLA) relevantly provide:

“9General Principles

3. (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 things)—

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

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…

23Standard of care in relation to contributory negligence

3. (1)
   The principles that are applicable in deciding whether a person has breached a duty also apply in deciding whether the person who suffered harm has been guilty of contributory negligence in failing to take precautions against the risk of that harm.

3. (2)
   For that purpose—

1. (a)
   the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and

2. (b)
   the matter is to be decided on the basis of what that person knew or ought reasonably to have known at the time…

24Contributory negligence can defeat claim

In deciding the extent of a reduction in damages by reason of contributory negligence, a court may decide a reduction of 100% if the court considers it just and equitable to do so, with the result that the claim for damages is defeated.”

7. [7]
   The following facts were pleaded against the first defendant^[2]:

“(d)Approximately 850 metres north of the intersection of the road with Norwell Road, the plaintiff indicated and commenced to overtake the truck.

5. (e)
   As the plaintiff in the overtaking lane reached a point around level with the rear of the truck, it, without indicating, commenced to veer over the broken centre line into the plaintiff’s overtaking lane.

6. (f)
   At about the same time referred to in subparagraph (e) hereof the plaintiff became aware of an approaching red vehicle some 800 metres away.

7. (g)
   The truck continued to move into the plaintiff’s overtaking lane until it was predominantly in the overtaking lane and depriving the plaintiff of road on which to overtake.

8. (h)
   The plaintiff slowed and the rear corner of the truck clipped the plaintiff on the arm.

1. (i)
   The plaintiff lost control of the motorcycle and crashed to the roadway.”

8. [8]
   It was then pleaded against the first and second defendants that the accident was the consequence of the negligence of the first defendant, the particulars being:^[3]

“(a)failing to keep any or any proper look out and in particular failing to observe the motorcycle was overtaking the truck;

2. (b)
   failing to indicate his intention to move into the overtaking lane;

3. (c)
   failing to exercise due care and skill in the management and control of the truck;

4. (d)
   depriving the plaintiff of reasonable overtaking space in circumstances where there was no reason to do so;

5. (e)
   failing to stop at the scene of the accident.”

9. [9]
   As the second defendant’s counsel pointed out, failing to stop at the scene could not be a cause of the accident. In response to the other allegations on the part of the plaintiff the second defendant denied that the truck driven by the first defendant moved predominantly into the overtaking lane and denied that the truck deprived the plaintiff of sufficient space to overtake it.^[4] Any negligence on the part of the first defendant was denied and it was said that the accident and thereby any injury, financial loss or other damage suffered by the plaintiff was caused and/or contributed to by his negligence.^[5] In paragraphs 3(e) and 12 of the defence it was relevantly pleaded:

“… the accident was caused by the negligence of the plaintiff in attempting an overtaking manoeuvre in circumstances when it was unsafe to do so.”

And

“The second defendant says that the plaintiff’s injuries, loss and damage were caused and/or contributed to by the plaintiff’s own negligence in that he:

1. (a)
   Failed to keep a reasonable distance behind the truck;

2. (b)
   Failed to keep his vehicle under control at all times;

3. (c)
   Failed to keep any or any alert and proper look out;

4. (d)
   Failed to proceed at a speed which was reasonable relative to the speed of the truck and failed to anticipate the actions of the truck driver in front;

5. (e)
   In the circumstances, failed to have regard for his own safety.”

10. [10]
    Of course it is not sufficient to simply point to a breach of duty of care on the part of the first defendant for the plaintiff to succeed. Factual causation has to be established. That is, proof is required to establish “that the defendant’s negligence was a necessary condition of the occurrence of the particular harm.”^[6] As Heydon J stated in Strong v Woolworths,^[7] causation is an element of the tort of negligence on which the plaintiff bears the onus of proof. Section 12 of the CLA provides:

“12 Onus of proof

In deciding liability for breach of a duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.”

11. [11]
    In Wolters v The University of The Sunshine Coast^[8] Applegarth J relevantly said:

“128. A defendant who exposes a plaintiff to a risk of injury or who, by omission, fails to take reasonable steps to avoid or minimise that risk is not liable unless the risk comes home in the sense that the court is ultimately satisfied on the balance of probabilities that the defendant’s breach caused or materially contributed to the harm actually suffered. The onus remains on a plaintiff to prove that the harm in fact resulted from the risk, or increase to the risk, created by the defendant’s breach of duty.

...

144. 144.
     The law requires that a plaintiff prove that a defendant’s conduct materially caused the injury. In law, problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence. A person should not be liable for every wrongful act or omission which is a necessary condition of the occurrence of the injury. The mere fact that injury would not have occurred but for the defendant’s act or omission may not be enough to establish a causal connection for legal purposes. ...

144. 145.
     If, however, the incident did cause her injury, then it need not be its sole cause. Causation will be established if the relevant act or omission contributed materially to the damage suffered. The law recognises that concurrent or successive acts may each amount to a cause of the injury suffered by the plaintiff.

144. 146.
     Questions of causation are resolved by applying common sense to the facts of each case. Value judgments are involved. ...” (Footnotes omitted).

12. [12]
    Section 11 of the CLA dealing with causation identifies a number of “general principles”:

“11 General principles

3. (1)
   A decision that a breach of duty caused particular harm comprises the following elements—

1. (a)
   the breach of duty was a necessary condition of the occurrence of the harm (factual causation);

2. (b)
   it is appropriate for the scope of the liability of the

person in breach to extend to the harm so caused (scope of liability).

3. (2)
   In deciding in an exceptional case, in accordance with established principles, whether a breach of duty— being a breach of duty that is established but which can not be established as satisfying subsection (1)(a)—should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach.

3. (3)
   If it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach—

1. (a)
   the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and

2. (b)
   any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

3. (4)
   For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty.”

13. [13]
    Before proceeding any further, I consider it appropriate to set out a number of findings in respect of allegations of fact made on behalf of the plaintiff and the second defendant. The first is that the evidence sufficiently establishes that at all material times the plaintiff had his motorcycle headlight on. Second, I am satisfied that before the first defendant commenced to move into the northbound lane he did activate his right hand indicator. I accept the first defendant’s evidence on this point and consider that the plaintiff was unlikely to have been able to observe whether the first defendant indicated or not. It is more likely than not that at the time the first defendant would probably have activated his right hand indicator, the plaintiff would have already been at or very near the rear corner of the truck and, given that he was attempting an overtaking manoeuvre at or about 90 kilometres per hour at the same time the truck was starting to move into this lane, I am unable to accept that he would have been able to make any sensible observation about whether the front indicator of the truck had been activated. That the first defendant activated his right hand indicators before moving into the northbound lane is not the end of the matter. For reasons set out below, I consider that he ought to have indicated at an earlier stage. Also, it is tolerably clear that the first defendant did not “veer” into the northbound lane nor did the truck occupy all but some 30 centimetres^[9] of that lane. There was no reason for the first defendant to make a sudden movement into the northbound lane and I accept his evidence that he did not do so. I prefer the evidence of the first defendant, which was materially corroborated by the evidence of Ms Kelly, that the truck moved into the north bound lane by in the order of 1.2 metres. That would, in usual circumstances, still leave sufficient room for the plaintiff to complete his overtaking manoeuvre. However, he was unaware of why the truck was moving in to the northbound lane and how far the driver intended to intrude into that lane. For reasons discussed below I also have concluded that at no time did the truck come into physical contact with the plaintiff.

14. [14]
    As mentioned above, the speed limit on this section of road was 100 kilometres per hour. None of the vehicles involved in this incident were travelling in excess of the speed limit. According to the plaintiff, at the time he commenced his overtaking manoeuvre the truck was doing about 75 kilometres per hour.^[10] On balance, I prefer the evidence of the first defendant to the effect that he would have been travelling at between 60 to 65 kilometres per hour and not 70 or more kilometres per hour. I accept the first defendant’s evidence on this point over that of the plaintiff for a number of reasons. First, the first defendant was in a better position to know his speed than the plaintiff who again would have been more focused on his own speed in preparation to overtake the truck. Second, I accept the evidence of the first defendant that he was driving cautiously at the time because not only was he in control of a heavily loaded truck with a flat or flattening rear tyre but was also about to overtake Mr Jensen on his bicycle. I should note here that there is no suggestion that the flat or flattening rear left tyre was in any way a contributing factor to this accident.

15. [15]
    During his evidence-in-chief, the plaintiff described what occurred:^[11]

“… I passed – I passed a few vehicles. There was – we were all following the truck. As vehicles would pass, pass the truck in turn I’d round up other vehicles and pass them. I came up behind the truck, lagged back. There was dust coming from the truck, I remember. There was – I just sat out near the white line a couple of times to make sure it – it was clear to pass. Noticing that it was clear to pass, I – I’ve gone to pass him. As I’ve got along … I was probably about two – three car lengths behind the truck. I poked – I poked out to see if there was anything coming, just sat on the white line, had a look around, nothing coming, so I moved up to overtake him indicated. I moved – went to overtake him. As I’ve got level with the back of the truck, I noticed it start to come out. And in the momentum, I got to about halfway past the truck, yeah a bit over halfway, maybe. I looked in his mirror because I’d thought has he seen me. I looked at the side of the truck, noted – noticed there was no – no indicator on, because the truck in particular, I think, had an – I’m sure had an indicator on the side of it near the cab near the front wheel somewhere. And as he’s moved over, I’ve buttoned off to drop back behind him. And as – as a result of that he’s clipped me and I’ve lost control.” (Emphasis added).

16. [16]
    The reference to “buttoned off” was explained by the plaintiff to mean that he had decelerated. During cross-examination the following exchange took place between the plaintiff and MrMatthews QC, senior counsel for the second defendant:^[12]

“Question:Now Mr Veyt you disagreed with me when I suggested to you the truck was only doing 50 to 60 kilometres an hour yesterday didn’t you? You just disagreed with that? You thought it was going much quicker?

Answer:When I looked at my speedo following the thing I was doing about roughly 70 kilometres an hour.

Question:What – what did you mean – what ‘speedo following the thing’, what did you mean by that?

Answer:Following the truck sorry. I looked – I glanced down at my speedo when I was sitting behind it and my speedo was reading 70.

Question:Oh, when do you remember you did that?

Answer:Well, I always glanced down at – my – even driving. I glanced, probably, at my gauges about once a minute at least. It’s just habit I suppose.

Question:Well, see, what I’m going to suggest to you occurred was there was a vehicle ahead of you between you and the truck which overtook the truck and was an older utility. And you almost immediately followed it around the truck. You didn’t hang back and wait until it had gone completely past. And you went as well?

Answer:That’s a normal passing manoeuvre when you ride a motorbike.

Question:Okay, so what I’ve described is what you did do and your response is it is a ‘normal passing manoeuvre when you’re on a motorbike’?

Answer:It usually is. You usually follow------

Question:Sorry, I just want to get this correct on the record. I don’t want to misunderstand you. You agreed with my description as to what occurred but said that it is a normal passing manoeuvre?

Answer:Maybe not normal.

Question:On a motorbike?

Answer:I’ll change – I’ll change that wording but.

Question:Will you? To what?

Answer:A lot of times when there are other vehicles overtaking you – you wait till they’re nearly right at the front of – of – of the other vehicle because I – where I was sitting near the white centre line I could see that it was clear past that vehicle so I just followed him around before other cars that were going slow as well did.

…

Question:All right you followed the car ahead around the truck didn’t you?

Answer:No I didn’t.

Question:… because you thought you had a clear enough view past the car that was already overtaking the truck to the oncoming traffic. That’s what you did didn’t you?

Answer:The – what happened was, as the truck was driving along, the ute was behind it. The ute went out and went around the truck. That’s when I came up behind the truck, came out to have a look, noticed it was clear and followed it – and – and come around the truck as well.

Question:No no and followed the ute around?

Answer:Well, the ute was – the ute was probably …

Question:Followed it around is what you said wasn’t it?

Answer:The ute was probably in front of the truck already. Not pulling in but in front of the truck.

Question:Travelling up the incorrect side of the road in the overtaking manoeuvre?

Answer:The utility?

Question:Yes travelling up the wrong side of the road…?

Answer:Yes. He was – he was …

Question:Whilst it was overtaking and had not, at the time you commenced to overtake, had not yet returned to its correct side of the road. Is that what you’re saying?

Answer:Starting to.

Question:See, Mr Veyt, I’m going to suggest to you that the – that whether you saw it or not, the truck indicated an intention to move to the right and moved very slowly to the right after the utility had passed it and just before the utility commenced to cross back in front of it onto its correct side of the road?

Answer:That’s when I was along side of it. I didn’t see any indicator.

Question:No. Well I’m putting to you that there was an indication – signal of an indication to move to the right that the truck did not commence its move to the right around the cyclist until the utility had gone past it?

Answer:I don’t know about that.

Question:No. Because you at no time were aware from the times you’d moved in the line of traffic towards the white line to look ahead – you at no time were aware of there being a man on a bicycle riding along the edge of the fog line on – in your direction of travel were you?

Answer:No. I wasn’t because of – when you sit in either on – in – in your normal lane of travel from the way travel wears the bitumen out, there’s always like, two groves on each side of the road, whether you’re going north or south from the weight of trucks, the weight of cars, you normally get, like, the road – a little dip, the middle – a little dip from where the wheels always sit, and if you’re crossing over that all the time, it’s – it’s easy to lose control. On this straight stretch of road, I did move over because I knew the other cars were going to overtake the truck so I couldn’t see what was on the left hand side of the truck.

Question:See I’m suggesting what happened was you just got impatient and you just followed the ute around?

Answer:No. I didn’t get impatient because I’ve always been a careful rider.” (Emphasis added).

17. [17]
    The “ute” discussed in that passage of evidence was an old utility driven by MrGordon. Mr Gordon’s evidence was that:

“… and I overtook a truck and I saw in my mirror – just before I did I saw a car – a bike overtaking. And then when I overtook the truck, I got back in, got close to my lane, checked my mirror and I saw the bike spinning down the road and that’s all I seen about it.”^[13]

18. [18]
    Mr Gordon then pulled to the side of the road and after the truck driven by the first defendant passed him he then returned to see if the plaintiff was seriously injured. At this stage the plaintiff told him that the truck had “run him off the road”.^[14] Mr Gordon then pursued the truck and after the first defendant had pulled over, told him that he had been involved in an accident and had “knocked” the plaintiff.^[15] Mr Gordon in that context was clearly referring to what he was told by the plaintiff as he had earlier acknowledged that he had not seen what caused the motorcycle to go out of control.^[16] He had no basis for saying that the first defendant had come into contact with the plaintiff but that was an understandable assumption in the circumstances. As was the case with the plaintiff, Mr Gordon was at no time aware of the bicycle being ridden by Mr Jensen.

19. [19]
    It would appear that the only driver who was aware of Mr Jensen at relevant times was the first defendant. His evidence-in-chief was to this effect; he was travelling in the southbound direction travelling at between 60 to 65 kilometres per hour when he observed Mr Jensen on his bicycle and began to slow. Just as he was approaching Mr Jensen the utility driven by Mr Gordon had overtaken him and once he let it pass he then put on his indicator and moved into the right lane to the extent that approximately half the width of his truck entered that lane. According to the first defendant the truck he was driving was 2.4 metres wide.^[17] As already stated, that evidence was generally consistent with the evidence of Ms Kelly who placed the truck at or about one metre into the northbound lane at the time it was being overtaken by the plaintiff. In this regard I do not consider the sketch prepared by the first defendant prior to the hearing of this matter to be of any probative value.^[18]

20. [20]
    The first defendant was asked whether he observed anything in his rear view mirror before he moved into the northbound lane. He said that he did not. The next thing he recalled was:^[19]

“As I was passing the motorcycle – sorry – the bike rider, I heard this crashing metal – metal on bitumen sound and I looked in the mirrors then to see this motorbike sliding along the road. I don’t know where he came from.” (Emphasis added).

21. [21]
    The first defendant said he did not stop because he believed he had done nothing wrong. Such callous disregard for the welfare of another human being is difficult to comprehend. However, I do not consider it to be indicative of a guilty conscience. The more likely explanation is that the first defendant considered having his tyre repaired more important that the health of the plaintiff. He agreed that he was in a “hurry” to get the tyre fixed^[20] but I am nonetheless satisfied that the truck was not travelling in excess of 65 kilometres per hour at the relevant times.

22. [22]
    During cross-examination the following exchange took place between Mr Newton, counsel for the plaintiff, and the first defendant:^[21]

“Question:If it be the fact, as we assert and as his Honour may find, that this bike, having seen the utility successfully passed you, had snuck its nose out a couple of times to make sure it’s clear and then equally went past you and was certainly up to the middle of your vehicle or thereabouts as you came across, any reason you’re aware of why you wouldn’t have been aware of that?

Answer:What the motorcyclist?

Question:Yes.

Answer:I was probably watching – looking ahead. When I pulled out, I was looking straight ahead, then to get past the bike [indistinct] left hand mirror on the bike rider so that I didn’t cut him off and I pulled back in the lane. This – as I was passing him, that’s when I heard the motorbike. Up until then, he wasn’t visible in my mirrors.

Question:So certainly from any point of time where he came out and commenced an overtaking manoeuvre, you were never aware of his presence at all?

Answer:No. I didn’t know there was a motorcyclist behind me. No.

Question:So before you commenced to move over, you never checked to make sure there was no other passing vehicle?

Answer:Sorry? What was that?

Question:Before you commenced to move your truck over, you did not check your right rear vision mirror to make sure there was no overtaking vehicle?

Answer:I did check. There was no vehicles overtaking [indistinct], then I proceeded to pull out past the bike rider. There was no vehicles going to pull out or in that lane trying to pass me.” (Emphasis added).

23. [23]
    As indicated earlier, I do not accept the truck driven by the first defendant came into contact with the plaintiff and/or his motorcycle. According to the plaintiff the truck “clipped” him. Ms Kelly, the passenger in the vehicle heading north towards the plaintiff and the first defendant gave evidence to the effect that she was some 30 to 40 metres away when she observed what occurred and that the vehicle she was travelling in was probably doing in the order of 100 kilometres per hour. Clearly that estimate of distance cannot be correct, otherwise the vehicle she was travelling in would have itself collided with either the plaintiff or the first defendant’s truck if not both. According to Ms Kelly, when the plaintiff’s motorcycle was level with the truck’s cab or driver’s door the truck then began to move across into the northbound lane and “hit the motorbike causing him to go over the handlebars and slide off to the side of the road”. That is of itself at odds with the plaintiff’s own evidence that the back of the truck clipped his left shoulder.^[22]

24. [24]
    The plaintiff asserted that he suffered a number of injuries as a consequence of the accident yet no injury to the left shoulder is recorded. That of course is not decisive but it is a relevant consideration. More importantly however is that on a number of occasions in describing what occurred, at no time did the plaintiff report to anyone else that he had been struck by the truck. As already referred to he told Mr Gordon that he had been “run off” the road by the first defendant. When Mr Jensen attended the plaintiff, which was almost immediately after the accident occurred, he said that the plaintiff told him “I gave it [presumably the motorcycle] a bit and when I hit the brakes – when I touched the brakes, that’s when I lost it”. When Mr Jensen was asked whether the plaintiff reported any contact between him and the truck Mr Jensen said that he did not.^[23] When asked in cross-examination whether or not he could have been mistaken in his recollection of what the plaintiff told him he replied that he did not think so. I accept Mr Jensen’s evidence.

25. [25]
    Later the same day but after the plaintiff had received attention at the Gold Coast Hospital the plaintiff was spoken to by Constable Gunn who recorded parts of his telephone conversation with the plaintiff in what was described as a police “narrative”.^[24] That narrative recorded:

“I was driving down Jacobs Well Rd, I had passed a couple of cars when I came up to the truck back of the truck. I pulled out a couple of times to go around the truck and then pulled back in behind the truck. I have then attempted to overtake the truck again and when I pulled out I saw the truck start to move out into the other lane. I have then de-accelerated as I would have ended up on the gravel. I don’t remember what happened next. I seemed to lose control and I have then slid along the road.”

No mention was made of any contact between the plaintiff and the truck and the reference to losing control is consistent with what the plaintiff told Mr Jensen. It is also consistent with the version of events given by the plaintiff and recorded by one of the attending ambulance officers. In the ambulance report^[25] it is recorded that the plaintiff’s version of events was:

“… while going to overtake a truck, the truck has pulled out on him, so he states that he went to brake hard when the front end came out from under him and he landed on the road taking most of the fall on his left side. He states that he was travelling at about 90 kilometres per hour. …”

26. [26]
    Following these more contemporaneous statements the plaintiff was then recorded as having given a number of differing versions to his property insurer. In the agreed bundle of documents conversations between officers of his insurer and the plaintiff are recorded.^[26] On 10 May 2011 the following entry is recorded:

“The insured was riding behind a tip truck, has gone to overtake, has seen that a car was coming the other way decided that wouldn’t be able to make it. Has pulled back in behind the truck and clipped the back of the truck hitting the ground.”

On 20 May 2011^[27] the following entry appears:

“Called ins’d – he is aware of update. And very happy. He also asked if we were going to chase up the TP, advised as per his lodgement version we were going to hold him liable, read to him, insured advised incorrect version and not what happened at all. He advised he was in the lane next to TP truck. TP truck has then swerved into ins’d lane causing him to fall off bike, have sent him S and D and he will complete.”

On 11 June 2011 the plaintiff completed an accident detail form in which he described the accident in the following terms:^[28]

“I was passing a truck when he moved over into my lane I de-accelerated to come back in behind him and he kept moving over clipping me causing me to lose control and fall off.”

27. [27]
    In a later document dated 11 July 2011, in responding to the questions about who caused the accident and why, again the plaintiff made no mention of being clipped or otherwise struck by the truck. The plaintiff answered:^[29]

“The truck driver. He pulled out when I was passing him. Came rite (sic) over into my lane.”

28. [28]
    The plaintiff stated that he could not recall giving any of these versions of events but he did not deny that he might have. The plaintiff also stated that he could not recall any of the conversations between himself and Mr Jensen, the ambulance officers and Constable Gunn.

29. [29]
    Returning to the evidence of Ms Kelly, at first blush it tends to support the plaintiff’s version that he was struck by the truck. However her oral evidence stands in contrast to the equivocal version given by her in a written statement signed 22 February 2013^[30]. That statement records:

“I observed a truck travelling towards us on the opposite side of the road. My husband’s vehicle would have been going at roughly the speed limit. I then observed a motorcycle pull out from behind the truck and go across into our lane, in an obvious attempt to overtake the truck. As the motorcycle approached the front of the truck, the truck pulled out onto the other side of the roadway. I cannot say precisely how far it came out but it definitely moved well into the lane on the other side of the road. At the time I was not quite sure why it was doing that. I observed the motorcycle near the front of the truck and I thought there may have been a collision with the motorcycle possibly striking the driver’s mirror door. In any event as the vehicles got close to impact the motorcycle driver became dislodged. I recall seeing him go over the handlebars and the bike bounce several times, possibly three, quite high on the roadway before eventually coming to a stop in the centre of my lane.” (Emphasis added)

30. [30]
    It is quite clear that Ms Kelly, before signing the statement and having it witnessed by her husband, gave the statement careful thought as there were a number of amendments, additions and deletions made by her. Given the obvious short amount of time Ms Kelly would have had to observe what occurred and the clear inconsistences or tensions between her oral evidence and her written statement I find it difficult to give her evidence on this issue much weight.

31. [31]
    I can accept that immediately after the accident the plaintiff would have been dazed, if not in a degree of shock, when speaking to Mr Jensen, the ambulance officer and even at the later time when speaking to Constable Gunn. However, at no stage did he lose consciousness and the level of consistency between the versions given to those gentlemen together with the other equivocal, if not contradictory, evidence concerning there being physical contact or not leaves me in the position where I am not satisfied on the balance of probabilities that physical contact had occurred. For the sake of completeness I should add that the absence of any damage to the rear of the truck was unpersuasive.

32. [32]
    In the circumstances of this case, whether there was or was not contact between the truck and the plaintiff is not a determinative factor. On balance it seems to me that if both the first defendant and the plaintiff had exercised more care and attention this accident probably would not have occurred. The evidence makes it clear to me that the plaintiff was more concerned with getting past the truck driven by the first defendant than with what was otherwise occurring on the road ahead of him. To this end, he was travelling so close to the rear of the truck that he was effectively for most, if not all, material times within its blind spot. Further, by travelling so close to the centre line so as to avoid the ruts in the road and to be able to “duck out” and see what was coming in the opposite direction and “round up” (overtake) other vehicles^[31] he denied himself the opportunity of being able to see what was ahead on the left hand side of the road and, in particular, the existence of Mr Jensen on his bicycle. His own evidence was that it was because of this method of riding that he did not see Mr Jensen.^[32] Had the plaintiff operated his motorcycle in a way which afforded him the opportunity to appreciate all of what was occurring on the road ahead at the material time, he would have been able to delay or otherwise adjust his passing manoeuvre accordingly and, at the very least, be aware that when the first defendant’s truck was moving into the northbound lane it was only doing so to accommodate the cyclist and was not going to continue moving so as to occupy the whole of that lane. Had the plaintiff not lost control of his motorcycle he very likely would have been able to overtake without incident.

33. [33]
    The plaintiff may have been some two to three car lengths behind the truck at various times, but the evidence of Mr Gordon, the first defendant, and that of the plaintiff himself has led me to conclude as follows. Immediately before commencing his overtaking manoeuvre the plaintiff was close to the rear right corner of the truck. Second, the plaintiff commenced to overtake the truck before Mr Gordon had completed overtaking it and before his utility had returned completely to the southbound lane.

34. [34]
    On the other hand, the first defendant is an experienced truck driver and ought to have known that there was a risk that a vehicle travelling behind could be situated within its blind spot and, accordingly, ought to have been particularly careful in checking his rear view mirrors immediately before moving to the right. The first defendant failed to operate his vehicle in a safe and proper way in two respects, in my view. He failed to keep a proper lookout via his right hand rear view mirror and did not indicate his intention to move into the northbound lane in sufficient time to give adequate warning to those travelling behind who might have been tempted to overtake. On the first defendant’s own evidence, he was only 20 to 30 metres from Mr Jensen before he activated his indicators in circumstances where he knew or ought to have known that there was following traffic likely to want to overtake his slow moving truck. In circumstances where the first defendant had had Mr Jensen under observation for some time^[33] it was negligent conduct to wait until 20 to 30 metres away from him before giving indication of an intention to move into the oncoming lane.^[34] By the time the first defendant gave indication, the plaintiff was probably at or just passing the right corner of the truck at between 90 to 100 kilometres per hour.

35. [35]
    On balance, I have also concluded it more likely than not that while the first defendant checked his rear view mirror at or about when Mr Gordon commenced to overtake, at the time he began to steer into the other lane and at the time the plaintiff was in the process of overtaking, he did not check his mirror again and was “looking straight ahead”. I find that it was not until he heard the plaintiff’s vehicle hit the road that he looked into his rear view mirror again.^[35]

36. [36]
    Had the first defendant checked his rear view mirror immediately before moving to the right he would have or at least should have seen the plaintiff. Failing to do so denied him the opportunity of taking steps to avoid injury to the plaintiff by reducing his speed further and delaying moving into the right hand lane. By failing to give reasonable notice by indicating at an earlier time his intention to move to the right, the first defendant denied the plaintiff the opportunity to delay his overtaking manoeuvre.

37. [37]
    The aforesaid omissions on the part of the first defendant were negligent and that negligence was a material cause of the plaintiff losing control of his motorcycle and thereby of the accident. However, for the reasons given, I have also concluded that the plaintiff was himself negligent and his negligence was also a contributory cause of the accident.

38. [38]
    It was submitted on behalf of the second defendant that in the event that I found negligence against the first defendant and the plaintiff then the appropriate distribution of blame would be 25 percent to the first defendant and 75 percent to the plaintiff. In this context I was referred to the “special relationship” between the “leading car” and the “following car” explained by Dunn J in the Full Court decision of Rains v Frost Enterprises Pty Ltd.^[36] In Freeleagus v Nominal Defendant^[37] the Court of Appeal cautioned against over emphasising the responsibility of the following driver or the importance of that driver’s opportunity to avoid the risk created by the carelessness of another. The “special relationship” concept was also considered in Vos v Hawkswell & Anor^[38] where Muir JA (with Holmes JA and Atkinson J agreeing) said:

“Counsel for the appellant made much of the discussion of authorities by Dunn J in Rains v Frost Enterprises Pty Ltd concerning the ‘special relationship’ between the ‘leading car’ and the ‘following car’: the latter normally being in a better position than the former to observe and avoid creating a hazardous situation. The ‘special relationship’ referred to by Dunn J was that between two cars ‘on a quite long straight stretch of road, in conditions of good visibility.’ His Honour’s discussion does not suggest that the driver of the following car is inevitably liable should his vehicle collide with the vehicle in front. There is no such principle. Liability must be determined by reference to the particular facts of each case.” (Emphasis added)

39. [39]
    To similar effect with the observations by Martin J in Shaw v Menzies & Suncorp Metway Insurance Ltd^[39] where his Honour adopted the reasoning of the High Court in Podrebersek v Australian Iron & Steel Pty Ltd:^[40]

“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison of both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ….. and of the relative importance of the acts of the parties in causing the damage ….. . It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.” (Emphasis added and authorities deleted).

40. [40]
    This case bears some similarities with Rains v Frost Enterprises Pty Ltd. It was a fine clear day where all the vehicles were travelling on a relatively flat and straight stretch of road. Such conditions might suggest that the plaintiff was in a materially superior position to avoid an accident involving the first defendant’s truck. However, in my opinion while the plaintiff was a “follower” the first defendant was in charge of a large heavy vehicle capable of causing serious injury and damage in the event of a collision. By steering his truck partly into the oncoming lane to ensure a safe distance between it and Mr Jensen the first defendant was acting lawfully. However, such a manoeuvre on a straight section of road would not be one a following driver would normally be expecting and therefore involved an additional degree of risk. As Martin J observed in Shaw, a driver in such a situation must be alert for other drivers including those who may not themselves be complying with the rules of the road.

41. [41]
    Both the plaintiff and the first defendant owed to other users of the road, including each other, a duty to exercise reasonable precautions to avoid causing an accident. That duty included the obligations to seek a proper look out, to give adequate warning of an intention to change direction and to overtake only when safe to do so. The risks and consequences associated with a breach of duty to take reasonable precautions were foreseeable, significant and likely to cause reasonable harm. Bringing into account and comparing the relevant conduct of the plaintiff and the first defendant I have reached the conclusion that the evidence establishes that the first defendant’s negligent conduct was more responsible for the accident than the plaintiff’s contribution to its cause, and to a material extent. Accordingly, I will assess the plaintiff’s contributory negligence at 25 percent.

Quantum

42. [42]
    In his statement of claim the plaintiff claimed $700,000 damages for the negligence of the first defendant. During final submissions that claim was reduced to $498,360.24 inclusive of interest. That amount was made up as follows:^[41]

2. 1.
   General damages – ISV22 $34,840

2. 2.
   Medicare refund (admitted)^[42] $3,969.20

2. 3.
   Out of pocket expenses$1,760.40

2. 4.
   Interest thereon 0.7175%, 3.9 years$49.26

2. 5.
   Past economic loss – say $1,000 net per week

for 3.9 years discounted at 30% $141,960

2. 6.
   Superannuation thereon at 9.25%$13,131.30

2. 7.
   Interest on $66,867$1,871.11

2. 8.
   Future economic loss/impairment - say

$1,000 net per week for 12 years (5% tables)

with a 50% discount$237,000

2. 9.
   Superannuation thereon at 10.13%$25,008.10

2. 10.
   Future treatment, medication and travel$17,470

2. 11.
   Past care (admitted)^[43] $12,121.87

2. 12.
   Future care at $27.00 per hour, one half hour

per week or $13.50 at 25 years (5% tables)$10,179

43. [43]
    On behalf of the second defendant it was submitted that damages would be assessed at between $85,157.62 and $90,632.62. The difference between those two figures being the difference in the assessment of future economic loss, superannuation, and interest thereon in the amount of $5,475. The range of damages contended for on behalf of the second defendant was made up as follows:^[44]

2. 1.
   General damages $16,250

2. 2.
   Past special damages$5,729

2. 3.
   Interest on part$96.75

2. 4.
   Interest on part$15,000

2. 5.
   Interest thereon $824.40

2. 6.
   Loss of past superannuation $1,350

2. 7.
   Future loss of earning capacity$15,000 - $20,000

2. 8.
   Loss of future superannuation benefits$1,425 - $1,900

2. 9.
   Past gratuitous care and assistance (admitted)$12,121.87

2. 10.
   Future gratuitous care and assistance $7,650

2. 11.
   Future expenses $9,710

General damages

44. [44]
    The plaintiff’s injuries attracted the following assessments of whole of person impairment:

1. Fractured right wrist 8% (arm 13%)
2. Left elbow injury 1% (arm 2%)
3. Right shoulder injury 3% (arm 5%)
4. Right knee injury 2% (leg 12%)
5. Cervical spine injury – 5%

The plaintiff also suffered fractures to his left ribs.

45. [45]
    Pursuant to the CLA, general damages are to be assessed in accordance with the Civil Liability Regulation 2003 (CLR). In Allwood v Wilson and Anor^[45], McMeekin J said in a case such as this involving multiple injuries:

“(19)I am required to assess an Injury Scale Value (ISV) for the injuries from the range of Injury Scale Values set out in Sch 4 of the Regulation in order to determine the level of general damages (as defined) in accordance with the rules laid down in part 2 of Sch 3 of the Regulation.

3. (20)
   This case concerns multiple injuries. In such a case it is necessary to determine the dominant injury as it is defined, have regard to the range of ISVs applicable to that injury, determine where in the range of ISVs provided for that injury it should fall, and determine whether the maximum ISV in that range (the maximum dominant ISV) adequately reflects the adverse impacts of all injuries. If the maximum dominant ISV is not sufficient then the ISV may be higher but not more than 100 and only rarely more than 25% above the maximum dominant ISV selected. In arriving at an appropriate ISV the court needs to bear in mind that the effects of multiple injuries commonly overlap.

3. (21)
   Whilst the regulations indicate that the purpose of the elaborate scheme set out there is to promote consistency in awards, sight must not be lost of the overriding purpose of the ISVs prescribed – to reflect the level of adverse impact of the injury on the injured person.

3. (22)
   The court is required to have regard to the guidance provided by the provisions in Schedule 4 concerning its use insofar as they are relevant to the particular case but it is not necessarily limited to those factors: Sch 3 s 8.

3. (23)
   Additionally, in assessing an ISV, a court may have regard to other matters to the extent they are relevant in a particular case: Sch 3 s 9. The examples provided of other matters are the injured person’s age, degree of insight, life expectancy, pain, suffering and loss of amenities of life. In assessing an ISV for the multiple injuries, the range for, and other provisions of schedule 4 in relation to, an injury other than the dominant injury of the multiple injuries can be considered.

3. (24)
   The extent of whole person impairment is an important consideration but not the only consideration affecting the assessment of an ISV… The dictionary defines whole person impairment (WPI) in relation to an injury as an estimate ‘… expressed as a percentage, of the impact of a permanent impairment caused by the injury on the injured person’s overall ability to perform activities of daily living other than employment.’” (Emphasis added, footnotes removed).

46. [46]
    The parties are in agreement that in this case the “dominant” injury for the purposes of the CLA is the right wrist injury which is identified as item 107 in the CLR as a “moderate wrist injury” with an ISV range of 6-15. On behalf of the second defendant it was submitted:^[46]

“The plaintiff’s ‘dominant’ injury as that term is used in the CLA is the right wrist injury and is properly assessed within Schedule 4 of the CLR as item 107 as a ‘moderate wrist injury with an Injury Scale Value of 10.

Rarely will an uplift of more than 25% be allowed. It is submitted that this is not even a case where an uplift of 25% should be allowed given the nature and degree of the orthopaedic injuries sustained by the plaintiff. Instead we contend that an uplift of in the order of 15% would be appropriate.”

47. [47]
    In support of his assessment of general damages in the sum of $34,840, Mr Newton posed and then answered a number of rhetorical questions in his written submissions:

“Dominant injury is the right wrist because it has the highest ISV of 15. Is ISV 15 adequate for multiple injury? No, increase 25% to ISV 19. Is ISV 19 adequate for multiple injury? No, increase to ISV 22. General damages $34,840.”

48. [48]
    The level of general damages contended for by the plaintiff is excessive even taking into account the other injuries suffered by the plaintiff as a consequence of the accident. Item 107 of schedule 4 of the CLR relevantly provides:

“Additional comment about appropriate level of ISV

• An ISV at or near the bottom of the range will be appropriate if there is whole person impairment for the injury of 6%.
• An ISV at or near the top of the range will be appropriate if there is whole person impairment for the injury of 12%”

49. [49]
    As identified above according to Dr Gillett this injury resulted in a 13% impairment of the right wrist and an 8% whole of person impairment. When McMeekin J referred to the ISV only being increased by more than 25% “rarely” his Honour was referring to s 4 of Schedule 3 of the CLR which relevantly provides:

“(1)This section applies if a court considers the level of adverse impact of multiple injuries on an injured person is so severe that the maximum dominant ISV is inadequate to reflect the level of impact.

3. (2)
   To reflect the level of impact, the court may make an assessment of the ISV for the multiple injuries that is higher than the maximum dominant ISV.

3. (3)
   However, the ISV for the multiple injuries –

1. (a)
   must not be more than 100; and ….

2. (b)
   should rarely be more than 25% higher than the maximum dominant ISV. …” (Emphasis added).

50. [50]
    Section 3 of Schedule 3 of the CLR provides:

“3Multiple injuries

3. (1)
   Subject to section 4, in assessing the ISV for multiple injuries, a court must consider the range of ISVs for the dominant injury of the multiple injuries.

3. (2)
   To reflect the level of adverse impact of multiple injuries on an injured person, the court may assess the ISV for the multiple injuries as being higher in the range of ISVs for the dominant injury of the multiple injuries than the ISV the court would assess for the dominant injury only.”

51. [51]
    During his oral submissions, Mr Newton put the plaintiff’s case in this way:^[47]

“… Is it reasonable to take it to the top of the range? We would say obviously yes – no doubt my learned friend would disagree with that – and then we part company because we say this is a classic case where you will increase the 25 percent the Regulation envisages because of the multiple injury (sic) and our learned friend, I think, suggests you would increase it less than that. And then we say you would go the step further and say there would be an additional increase, and our learned friend says there is absolutely no reason why that is so. Your Honour, the reason it is so is because what you have done is taken a man and injured his elbow and right wrist which, really, is two principle injuries so that he has neither a good arm to speak of, and then you have all these other problems and we accept our learned friend’s submission that insofar as the shoulder and the knee are concerned that they are aggravations of what was probably asymptomatic pre-existing degeneration – I think Dr Gillett accepted that – but he had taken that into account in apportioning his percentage impairments. So that is being dealt with in that sense. And we say the combination of his injuries has rather created a fairly miserable state of being and an ISV of 15 is not adequate.”

52. [52]
    At the time of the accident the plaintiff was 51 (DOB 25/03/60) and at the time of the trial was nearly 55. Prior to the accident he had suffered a number of injuries from which he had made a full recovery with no residual problems. However, on 16 February 1999 he suffered a heart attack, was taken to the Nambour Hospital and was discharged from that hospital four days later. On 3 April 2000 the plaintiff was provided with a cardiovascular diagnostic report from the Prince Charles Hospital. From the date of the heart attack to 20 August 2007 the plaintiff was in receipt of a disability support pension from Centrelink. Despite employment as a concrete truck driver between 20 August 2007 and 30 June 2008 the plaintiff remained on the disability support pension and was on that pension when the subject accident occurred.

53. [53]
    Following the accident the plaintiff was hospitalised on 23 April 2011 and was not discharged until 9 May 2011. During his stay in hospital the plaintiff underwent four operations or procedures on 25 April 2011, 27 April 2011, 2 May 2011 and 4 May 2011. Those procedures included having a plate inserted in response to his right wrist injury and a skin graft to the left elbow. The impact the injuries have had on the plaintiff’s life were described by him in oral examination and reported (as described by the plaintiff) in the reports of Ms Coles, an occupational therapist.^[48] I do not consider it necessary to repeat that evidence however some observation is necessary. First, it is clear that of major concern is the right wrist injury. To deal with the pain of this injury the plaintiff takes 30mg of Oxy-Contin twice a day. Even with that medication, as I understand his evidence, the plaintiff rates the pain associated with that injury at 5 out of 10 and, upon aggravation, 8 or 9 out of 10.^[49] The Oxy-Contin also helps with the pain resulting from other injuries sustained as a result of the accident. The evidence suggests that the second most severe injury is that to the plaintiff’s left elbow. On medication the plaintiff described level of pain as being 3 or 4 out of 10 and again, on aggravation, up to 8 or 10 “depending on what I try and do”.^[50] The plaintiff also described the pain associated with other injuries and in particular his right shoulder and right knee.

54. [54]
    I accept that the multiple injuries suffered by the plaintiff have caused him significant periods of pain and have adversely impacted on his enjoyment of life to a significant extent. However, the injuries have not deprived him of the ability to enjoy a number of pursuits and interests he enjoyed prior to the accident. By way of example, while the plaintiff no longer considers he is fit to go camping he is still able to enjoy fishing albeit that it is now more awkward than it once was. It would appear that the same could be said for other interests including cooking and gardening. Further, while I also accept that his ability to enjoy social events would be limited from time to time because of pain and restricted movement, his social life has not been brought to a complete end. Also, while he may no longer be able to participate in martial arts, he has replaced that with more passive meditation.

55. [55]
    Further, for reasons which will be dealt with in more detail below I do not consider this to be a case where the plaintiff has been rendered incapable of employment in a position or role he once enjoyed. Finally, in this context it has not been suggested that he is now physically incapable of riding his motorcycle and, given his clear enthusiasm for that activity (over 30 years), I am unable to accept that he is now so unsure and nervous about riding that he is considering selling his motorbike. Despite him reporting that to Ms Coles it was not a matter touched on in his oral evidence. I also note that the plaintiff seemed to have become more active after his heart attack than he was before it. On 18 February 1999 he is reported as describing his interests and employment as “pottering around” and “usually unemployed”.^[51]

56. [56]
    Notwithstanding the above, I consider that the range intended for by the second defendant fails to adequately recognise the impact of the multiple injuries on the plaintiff but, on the other hand, there is no justification for an “uplift” of the type contended for on behalf of the plaintiff.

57. [57]
    Given the prescribed dominant ISV range of 6 to 15, in circumstances where the whole person impairment for the plaintiff’s right wrist injury was assessed at 8% (arm 13%), a starting point of an ISV level of 15 cannot be justified. I propose to adopt a value of 10, but that does not adequately reflect the full extent of the level of impact on the plaintiff caused by the multiple injuries he suffered as a consequence of the accident. The next step is then to determine whether the maximum ISV for the dominant wrist injury (ISV 15) is still “inadequate to reflect the level of impact”.^[52] It is in that it fails to sufficiently address the totality of the adverse impacts of the numerous injuries to the various parts of the plaintiff’s body. The ongoing pain requiring daily dosages of Oxy-Contin, a morphine derivative pain killer, together with the other impacts identified above warrants a further, but modest, uplift of 15%, resulting in an ISV of 17. Pursuant to section 2(d) of Schedule 7 of the CLR, that results in a figure of $24,960.00 for general damages.

Past care, Medicare refund and out of pocket expenses

58. [58]
    Past care and the Medicare refund have been agreed in the amounts of $12,121.87 and $3,969.20 respectively. Also, I can see no reason for not accepting the plaintiff’s assessment of out of pocket expenses in the sum of $1,760.40 and the calculation of interest thereon at $49.26 (total $1,809.66).

Economic loss

59. [59]
    Because of the sporadic work history of the plaintiff and his heart attack in 1999 there is a paucity of independent objective evidence concerning the economic/financial affairs of the plaintiff, save for Centrelink documentation. In Nucifora & Anor v AAI Ltd^[53] McMeekin J relevantly said:

“At least since Graham v Baker it has been well established that a plaintiff must demonstrate that his or her earning capacity has been diminished by the accident-caused injury and that that diminution ‘is or may be productive of financial loss.’ Those requirements plainly continue: McCarthy. In determining the ‘may be’ issue relevant in this case the principles explained in Malec v JC Hutton Pty Ltd apply. There is the ‘double exercise in the art of prophesying’ involved – what the future would have been if the injury had not occurred and what it is now likely to be. As usual the fact finder must state the financial findings underpinning the award and display the reasoning behind the award sufficiently at least for the parties, and the Court of Appeal if called on, to comprehend the result, although the methodology need not include an explicit statement of a formula: Reardon-Smith. An ‘experienced guess’ has been held to be a sufficient response to the facts presented: Ballesteros.”

60. [60]
    Section 55 of the CLA provides:

“(1)This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.

3. (2)
   The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.

3. (3)
   If the court awards damages the court must state the assumptions on which the award is based and the methodology it used to arrive at the award…”

61. [61]
    In Reardon-Smith v Allianz Australia Insurance Ltd^[54] which followed the decision of Ballesteros referred to by McMeekin J in Nucifora & Anor, Keane JA, with whom Williams JA and Atkinson J agreed observed:

“Section 55(3) of the Act is evidently concerned to ensure that the assessment of damages precedes in a manner which is sufficiently transparent that the basis of the decision is apparent both to the parties and to an appellate court. To this end, the provision requires that the methodology and assumptions on which the award is based be stated: it is clear, however, that it does not require an explicit statement of a calculation in which a formula is applied to factual findings.”^[55]

62. [62]
    In Allianz Australia Insurance Ltd v McCarthy^[56] White JA, after referring to s 55 of the CLA, went on to say:

“While the primary judge’s assumptions upon which she proceeded to award a global sum are accepted by the appellant to be adequately identified, her Honour’s methodology is not. Before considering that matter it is necessary to mention some relevant principles. Section 55(2) of the Civil Liability Act mandates that a court may only award damages if satisfied that the person injured will suffer loss of earnings. In this, the provision does not alter the common law.

In Graham v Baker Dixon CJ, Kitto and Taylor JJ noted:

‘… an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss.’

That is, it must be demonstrated that the injured person’s impairment has resulted in loss in monetary terms. This statement of fundamental principle was restated in Medlin v State Government Insurance Commission…” (Footnotes deleted).

White JA went on to say:^[57]

“What the respondent had to prove here, on the balance of probabilities, was that her earning capacity had been diminished because of the negligently-caused injury… . The evidence did not go so far. …”

63. [63]
    Ms Coles, in her first report sets out, to the best of the plaintiff’s recollection, the jobs he held from the time he left school at age 17 in 1977 up until his heart attack.^[58] Ms Coles reports numerous employers and that the longest period with the one employer was 2 years at the Commercial Hotel as a yardman. The plaintiff spent three years at the Boyne Smelter as a labourer but with “different contractors”. There are various entries ranging from an unspecified period with the Gladstone City Council and being employed “off and on interspersed with periods of unemployment” with various companies in Gladstone as a labourer/trades assistant on “shutdowns”. From February 1985 to December 1989 the plaintiff took a “working holiday” around Australia. His employment during that period was described in Mr Newton’s “court chronology” in these terms: “Plaintiff does a working holiday around Australia from Gladstone over a five year period, interspersed with unemployment benefits.” Ms Coles reports that on returning from this working holiday the plaintiff was employed for eight months with Audi Orica as a steel fixer, 12 months with EPH as a trades assistant, working “off and on” for various companies as a labourer on shutdowns, one year with Thiess as a storeman/dogman, and three to four years with various companies in and around Gladstone and the “mines”. In this regard it is to be noted that the plaintiff is licensed/ticketed to operate a crane up to a 60 tonne capacity. This history is largely consistent with the description of work given at the Nambour Hospital on 18 February 1999, namely “usually unemployed”.

64. [64]
    From the date of his heart attack on 16 February 1999 the plaintiff remained unemployed and the recipient of disability benefits until 20 August 2007. Sometime during 2002, the plaintiff spent 4 months in custody for what were described as “DVO issues”.^[59] From 20 August 2007 to 27 August 2008 he was employed by PEB Lawless Pty Ltd and then P & B Lawless as a concrete agitator truck driver. During that 53 week period the plaintiff earned $67,678 gross and paid $15,871 in tax^[60] (i.e. $977.50 net per week). His employment was terminated because he and his employer were unable to come to an arrangement concerning his work hours.^[61] According to the plaintiff, and supported by various documents, he was unable to cope with working up to 70 to 80 hours per week on occasions. Because of having to work those hours he became run down, fatigued and suffered chest pains. The chest pains seemed to have been more associated with bronchitis than his previous heart condition.

65. [65]
    Adopting the “Lawless” rates of pay as the best guide to what the plaintiff could have earned and would have earned into the future, past economic loss for 3.9 years was calculated on behalf of the plaintiff at $141,960. Future economic loss for 12 years was claimed in the amount of $237,000. Past economic loss was discounted by 30% and future economic loss by 50%. According to the second defendant, having regard to the plaintiff’s past history, particularly his sporadic work history and his heart attack, past economic loss should be assessed on a global basis and very modestly. An allowance for past economic loss in the sum of $15,000 was contended for and for future economic loss, not in excess of $20,000.

66. [66]
    During the course of the trial I heard evidence from a Mr Glossop a tugboat deckhand employed in Gladstone and a Mr Shamier also employed in Gladstone as a rigger and trades assistant. According to Mr Glossop he worked between 56 and 70 hours per week and in 2011 earned approximately $101,000 gross and in 2014 approximately $106,000 gross. Mr Glossop’s work roster was 21 days on and 21 days off. Tugboat deckhands were required to have a medical every two years. As best as I could follow Mr Shamier’s evidence, in 2014 he earned $142,000 gross. However, he was at the top level or grade of his occupation. Employees at the lower entry level in 2014 would have earned $92,000 gross. Mr Shamier also gave evidence that his work roster would on occasions involve a 10 hour day. A Mr Troy also gave evidence. Mr Troy was a retired crane driver who worked for a number of years with Bechtel. He worked in the Gladstone area on a “fly in fly out” basis on a four week on one week off roster. During the four week “on” period he would be required to work 58 hours per week. Mr Troy’s tax return for 2014 revealed that he earned a taxable income of $137,617 with $41,482 withheld as tax.^[62]

67. [67]
    I did not find the evidence of messes Troy, Glossop or Shamier to be of any real assistance either in respect of the potential earning capacity of the plaintiff or his prospects of gaining employment in Gladstone or anywhere else. It is true that the plaintiff had a history of employment and family contacts in Gladstone and that he had a license to operate a crane up to 60 tonnes. However, unlike Mr Glossop who had some 30 years’ experience the plaintiff had no experience of working on a tugboat. Also, unlike Mr Troy who had some 30 years’ experience driving a crane, the plaintiff had not, as far as I could tell from the evidence, operated a crane since some time at or around 1998. At the time of his heart attack he was employed as a plasterer/painter working on a fence in Eumundi with a friend. The state of the evidence was such that the best guide as to the net income the plaintiff may have been able to achieve, when and if employed, was that of in the order of $1,000 per week.

68. [68]
    On balance however, I consider that this case does not warrant an assessment of economic loss anything like that contended for on behalf the plaintiff. In 1984 he was working for the Gladstone City Council and, during the course of that employment, suffered a work related injury requiring him to have physio-therapy. According to the plaintiff he was off work for about one year because of that “soft tissue” injury. The plaintiff’s evidence is then that after recovering from that injury he went on the five year working holiday which ended at about Christmas 1989. During that period he did “odd jobs” and received unemployment benefits. Sometime in 1996 the plaintiff resumed more permanent employment when he again suffered a work related injury. That employment seemed to be in the construction industry but at the time the plaintiff suffered his heart attack he was, as I have said, working as a plasterer.^[63]

69. [69]
    According to the plaintiff from the date of his heart attack he continued to suffer chest pains. However, on 5 October 2010 he underwent a stress test, among other things, at the Gold Coast Hospital. As a consequence, of that his medication was changed and he “felt like a new man” and had a “new lease of life”. He also said that, as a consequence of this rejuvenation he intended to return to the work force on a full time basis.^[64] I cannot accept the plaintiff’s evidence in this regard. On the evidence before me there was no direct connection between his concerns about his heart and his termination of employment with Lawless. He just found the hours required were too demanding. Further, contrary to his evidence to the effect that in 2011 he began actively seeking employment in Gladstone with Bechtel he remained on the disability pension. That is, there was no attempt by him to change his status at Centrelink from being a disability pensioner to a person who was now ready, willing and able to re-enter the workforce. On 13 April 2011 the plaintiff lodged a credit card insurance claim with the ANZ Bank. In that document he described his previous occupation as that of a “truck driver” and that the basis for his claim was a “heart condition”^[65]. Also, on 28 March 2011 the plaintiff was in discussions with the Commonwealth Bank concerning his financial difficulties and, in particular, his inability to keep up payments on his loans. On 28 March 2011, the Commonwealth Bank wrote to the plaintiff advising, among other things, on how and what was required to make a “hardship application”. On 14 April 2011 the plaintiff responded stating in part:^[66]

“At the moment I am trying to get early payout from various super schemes I have held in the past. I have been informed that this could take some time to come through. My alternative plan is to put my property on the market. As my property is in Gladstone Qld it should sell pretty fast and at a fairly good price with the current boom in the town. On doing this I will settle all of my accounts in full with Com Bank and other financial institutions.

Last month I travelled to Gladstone and approached to (sic) real estate agents to find out about putting my house on the market. These two agents are keen to sell my house for me and say that I will get the price I want. …”

70. [70]
    His implicit representation to the ANZ Bank that he was incapable of earning income because of his heart condition is at odds with his evidence that he was actively seeking employment with Bechtel in Gladstone and that he had in early January 2011 attended the office of that company to drop off his resume. His advice to the Commonwealth Bank, despite referring to his visit to Gladstone in or about March 2011 also made no reference to him attending the office at Bechtel. When asked why he did not advise the ANZ Bank that he considered himself capable of employment he replied “I don’t know”. The plaintiff’s attempt to reconcile the inconsistencies in his correspondence with the Commonwealth Bank was equally unconvincing.^[67] I am also satisfied that he made similar representations and gave similar advice to Charter Mercantile Agency acting for the Commonwealth Bank in early 2012. The plaintiff said that he could not recall certain aspects of conversations but did not deny the thrust of Mr Matthews’ questioning on the issue.^[68]

71. [71]
    During the course of his evidence in chief, the plaintiff also referred to advice from Messrs Glossop and Shamier, who were both union delegates, which he said gave him great confidence that he would be able to achieve employment in Gladstone. According to the plaintiff the advice from Mr Shamier was so convincing that he believed he “would have ended up with a job out of it for sure.”^[69] Mr Shamier in fact gave no evidence about the prospects of the plaintiff gaining employment in Gladstone in either the pre or post-accident situation.

72. [72]
    As to Mr Glossop, according to the plaintiff he would have had “a big chance of getting that job”. That job was as a deckhand on tugboats in Gladstone Harbour.^[70] There was nothing in the evidence of Mr Glossop that justified the confidence of the plaintiff. I accept that Mr Glossop was respected enough by his employer to have people recommended by him offered employment. However, it seems sufficiently clear to me that when making employment recommendations to his employer Mr Glossop recommended people who were, unlike the plaintiff, experienced in working on tugboats.^[71] Perhaps even more importantly, the evidence of Mr Glossop again does not support the plaintiff’s optimistic views of employment in the tugboat industry. It is clear that when Mr Glossop was referring to the demand for employment in Gladstone he was referring to employment not in that industry but in the construction industry.^[72]

73. [73]
    The final matter that needs to be dealt with in this regard is the plaintiff’s evidence concerning his job applications with Bechtel. According to the plaintiff, sometime in January 2011 when in Gladstone he “dropped” his resume in the Bechtel office or that part of the office concerned with the LNG project. The plaintiff said that he intended to give the document to a specific person but that person was in a meeting and so he left it with “the office girl who was at the front desk”.^[73] He applied for different types of employment including that of a crane driver, truck driver, agitator driver or dogman. He also gave evidence that in the month prior to the accident, March 2011, he lodged an online job application with Bechtel. The plaintiff did not keep a copy of the resume he said he dropped in at the Bechtel office in January nor did he have any record of his online application in March 2011. As I understood his evidence as to the latter online application, that was so, at least in part, because he used a friend’s computer.^[74]

74. [74]
    Somewhat surprisingly in my view, on 8 October 2011, after the subject accident, the plaintiff said that he went online to see if his earlier job application was still there and if anything needed “updating”. One would wonder why a person, who on his own evidence considered himself to be incapable of carrying out any meaningful physical activity, would check to see whether his application for manual work needed updating. Further, the online application is littered with inaccurate information. By way of examples, it represented that from 15 June 2006 up until the time of the lodging of the application, the plaintiff was driving a concrete truck delivering concrete to various worksites.^[75] I was not taken to any evidence to show that that was the case. Indeed the evidence was that after ceasing employment with Lawless on 27 August 2008 the plaintiff went on to and remained on a disability pension. Further, under the heading “medical history” he described his condition of health as being “good” and stated that he had no medical condition or limitation that may restrict the performance of any duties and gave the same answer in respect of the question about whether or not he suffered any medical condition which required control through medication. Accepting for the moment that this was a reasonable description of the plaintiff’s health prior to the accident, (which I consider to be unlikely) one might have reasonably expected that if the reason the plaintiff went online some five to six months after the accident was to update it, under the heading “medical history” some mention might have been made about the injuries associated with the motorcycle accident. I find the evidence of the plaintiff on this issue highly improbable. The evidence concerning these purported job applications and the contradictory evidence given about the cause of the accident and his financial affairs, including employment details given to various parties at various times leads me to conclude that, when confronted with difficult questions, the plaintiff was prone to evasiveness or to give answers designed to presented his case in its most favourable light, regardless of whether or not those answers were strictly accurate. Finally on this topic, I much prefer the evidence of Ms McMillan from Bechtel which was to the effect that it was unlikely that the plaintiff made the applications he said he made in January and March 2011. I find it more likely than not that the online application made on 8 October 2011 was the first application lodged with Bechtel. To lodge such an application containing the information that it did could have no legitimate purpose.^[76]

75. [75]
    Turning to the medical evidence I am satisfied that the plaintiff’s pre-accident heart condition would not have prevented him from carrying out gainful employment. It also seems clear to me based particularly on the evidence of Dr Gillett and Ms Coles that, while some limited employment opportunities might become available from time to time, the plaintiff is now incapable of carrying out any meaningful full time employment for which he is either qualified and/or experienced.^[77] That is, save for the occasional relatively low level and casual form of employment, the plaintiff was rendered unemployable as a consequence of the accident. However, the employment history of the plaintiff, including that with Lawless, leads to me to conclude that, for the main part, the plaintiff would have been likely to have continued to voluntarily remain unemployed and collect his disability pension, based on his heart condition, rather than work on any full time or significant basis. In other words, I consider it more likely than not that the plaintiff would have been inclined to drop in and out of employment depending on his financial needs from time to time but to otherwise largely remain the recipient of some form of pension.

76. [76]
    In the circumstances I consider it would be artificial to attempt to carry out any mathematical calculation of past and/or future economic loss based on an expected net income, years of work and expected employment life which would then be discounted by various percentages depending on whether it was applicable to past or future economic loss. To be blunt the evidence leaves me to conclude that it would be simply impossible to determine with any precision what the real economic impacts the accident caused the plaintiff in respect of his employment opportunities. To put it another way while I am satisfied that on the balance of probabilities the plaintiff has suffered and will continue to suffer diminution of earning capacity that would be productive of economic loss, it was not possible to calculate in any precise way what that loss might have been. Accordingly the only option open is to adopt a global approach.

77. [77]
    The lump sum of $15,000 advocated for on behalf of the second defendant for past economic loss is still materially too low in my view. It fails to have sufficient regard to the fact that, as I have already concluded, from time to time the plaintiff would be likely to re-enter the workforce albeit only when and for how long he considered acceptable. However, as Mr Newton acknowledges any calculation of economic loss be it past or future, needs to be significantly discounted to bring into account all of the relevant circumstances. Doing what I can with the evidence I have concluded that the sum of $25,000 inclusive of interest and superannuation is an appropriate award for past economic loss. The adoption of such a relatively modest allowance for past (and future) economic loss not only gives appropriate recognition to the plaintiff’s past work history but also brings into account the fact that a degree of reluctance on the part of some potential employers might also be expected were his heart condition and criminal record to become known.

78. [78]
    Turning to future economic loss, bearing in mind the plaintiff’s age and overall health at the time of the accident I consider Mr Newton’s assessment of the plaintiff having approximately 12 years available to him to earn further income to be reasonable. Unfortunately though I consider that the plaintiff’s already chequered work history would be likely to have become even more chequered as the years progressed. In this regard his non-accident related health issues are obviously relevant. But, as is the case concerning past economic loss, the prospect of some form of light opportunistic work opportunities post-accident remains.^[78] For the same reasons concerning past economic loss I do not consider it appropriate to adopt the mathematical method advocated for by Mr Newton. On behalf of the second defendant it was acknowledged that while the plaintiff may have from time to time been engaged in “one off or short term intermittent low paid employment” and that:

“A reasonable expectation for an allowance of future economic loss by way of a global diminution of capacity to engage in intermittent short-term employment would be a sum of something in the range of $15,000 to $20,000.”

79. [79]
    In support of that proposition my attention was directed to two Court of Appeal decisions being Allianz Australia Limited v McCarthy^[79] and Smith v Body Corporate for Professional Suites Community Title Scheme 14487^[80]. The Allianz case is of little assistance on quantum. In that case the plaintiff, a young woman, suffered a significant soft tissue injury to her right fore-foot. However the evidence was sufficient to convince the Court of Appeal that it was likely that she would go on to complete her business degree, gain employment in her chosen field and would probably continue in that field, albeit in discomfort, or move to an alternate equally well paid or perhaps even more lucrative source of employment. Accordingly, the plaintiff had a long working life ahead of her.^[81] Gotterson JA, agreeing with the President, observed:^[82]

“I agree with the President that the factual findings made by the learned judge do justify a conclusion that by virtue of her injury and the arthritic symptoms which have developed from it and which are likely to worsen over time, the respondent is exposed to some risk of bouts of income loss because of short term inability to work and that, in consequence, her income earning capacity has been impaired. The risk, though low, is not insignificant to a point that it ought be disregarded, in my view. However, it bespeaks a no more than very modest impairment of income earning capacity and a correspondingly modest likelihood that it will produce financial loss.”

80. [80]
    In this case, unlike the situation in Allianz, the plaintiff is a middle aged man who’s qualifications and work experience meant that he was only ever going to be employable in the more unskilled area of the workforce. The evidence was also that the injuries resulting from the accident have all but ruined his ability to gainfully work in that capacity. Here there is no question that the accident related injuries impaired his income earning capacity and had the potential to cause significant financial loss. According to Dr Hossack, a specialist cardiologist, the plaintiff’s heart condition would not have prevented the plaintiff from working^[83] and being taken off his disability pension.^[84] However, it was tolerably clear that Dr Hossack’s opinion was based on the plaintiff working only a standard 38.5 hour week.^[85] On the evidence before me, no one in the construction industry appeared to work a standard 38.5 hour week in Gladstone.

81. [81]
    Dr Galea, also a specialist cardiologist, gave evidence concerning the heart condition of the plaintiff. On balance, where there was conflict between the evidence of these two doctors, I preferred that of Dr Hossack. I found it difficult to follow aspects of Dr Galea’s evidence as at times it was both unclear and uncertain. That was particularly so in regard to the question of whether the plaintiff had suffered one or two heart attacks.

82. [82]
    The Court of Appeal decision in Smith is also of little assistance. In Smith the trial judge awarded $15,000 for loss of future earning capacity based on the psychological complications and scarring arising from the accident. According to McMurdo P, agreeing with Fraser JA, notwithstanding the fact that the trial judge’s award in respect of future economic loss was modest it was nonetheless within an appropriate range on the evidence.^[86] Fraser JA relevantly observed:^[87]

“The evidence in support of the claim for future economic loss was also imprecise and general. That is no criticism of the applicant or her lawyers, but it does make it difficult for the applicant to contend that the global assessment made by the trial judge was inadequate. I am not persuaded that there is any ground for interfering with the award of damages for economic loss.”

83. [83]
    Neither Smith nor Allianz, in my respectful opinion, provide any material assistance in the assessment of damages in this case other than to make it clear that in appropriate circumstances modest and even very modest awards of damages for economic loss will be appropriate.

84. [84]
    That the plaintiff’s potential future working life after the accident was about three times that of his past (3.9 years) loss does not in the circumstances of this case warrant anything like a threefold increase of any global award for future economic loss. As I have already stated, I consider the plaintiff’s chequered work history together with his non-accident related health issues, would have seen his already less than enthusiastic approach to work decline even further as time went on.

85. [85]
    Between 1999 and the date of the accident (effectively 11 years) the only income derived from employment was the $52,000 he earned over the 13 months with Lawless. I am not at all satisfied that the plaintiff would have been likely to put much more effort into gaining meaningful employment in the future than he had in the previous 11 years. Any assessment of future economic loss must also be appropriately discounted in recognition of the fact that it is the present value of an ongoing but future loss that is being calculated.^[88] On the state of the economic evidence, such as it is, I consider it appropriate to make a global allowance in the sum of $52,500 (including superannuation) for future economic loss.

Future care, treatment, travel etc

86. [86]
    In respect of future gratuitous care, the parties are in agreement that a rate of 0.5 hours per week at $27 per hour is reasonable. The only material difference between the parties, at least as far as I understand it, is whether I should discount the award by 15% to take into account “contingencies” and whether the time for care should be 20 years and not the 25 years contended for on behalf of the plaintiff. On behalf of the second defendant the following submissions were made:^[89]

“The plaintiff has a future life expectancy of 23 years.

In any event some care would be required regardless of any injuries sustained in the accident within 20 years.

Half an hour per week for a period of 20 years calculated with reference to the 5% tables and then discounted by 15% for contingencies would result in an award of approximately $7,650.”

87. [87]
    The evidence of Dr Hossack is that the plaintiff’s life expectancy at 54 was 22.84 years,^[90] not 25. Given the non-accident related medical history of the plaintiff and that I am estimating a future economic loss spanning many years, I have concluded that some discount to bring into account the contingencies of life. I can see no justification for otherwise concluding that the plaintiff would have required care in any event by the time he was about 74. An allowance for future care will be for 22.84 years discounted by 15% at the agreed rates, resulting in $8340.^[91]

88. [88]
    Future expenses are claimed in the amount of $17,470 (inclusive of a 30% discount). The second defendant contends for the sum of $9,710 and take particular issue with what they say is the lack of evidence warranting any allowance for physiotherapy and the use of “simple” analgesics. As to the latter that is because, according to the second defendant, the plaintiff is also being prescribed and taking Oxy-Contin. While being less than perfect I accept the plaintiff’s evidence that he does require and take analgesics since the accident in addition to the Oxy-Contin. Also, on the evidence before me I am not aware that the plaintiff’s claim under this heading involves any specific allowance for physiotherapy. The only adjustment that ought be made to the plaintiff’s claim would be to reduce the 25 year period used. However, on balance I have reached the conclusion that the 30% discount proposed by Mr Newton adequately takes that into account. Accordingly the sum awarded under this heading will be $17,470.

Assessment for damages

89. [89]
    For the reasons given damages would be assessed in the sum of $146,171.20 made up as follows:

2. 1.
   General Damages $24,960

2. 2.
   Past damages and out of pocket expenses $5,778.86

2. 3.
   Past economic loss (including interest and superannuation)

and superannuation)$25,000

2. 4.
   Future economic loss (including superannuation) $52,500

2. 5.
   Past gratuitous care and assistance (admitted) $12,121.87

2. 6.
   Future gratuitous care and assistance $8,340

2. 7.
   Future treatment and travel $17,470.

90. [90]
    Taking into account the plaintiff’s contributory negligence the final determination of damages is assessed at $109,628.00.

91. [91]
    For the reasons given the orders of the court are:

1. Judgment for the plaintiff against the second defendant in the sum of $109,628.00;
2. The second defendant pay the plaintiff’s costs of the proceeding.