Kickbusch v Lehane[2022] QDC 16

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   On 1 November 2016 the plaintiff, riding a small motorcycle, collided with a small truck towing a trailer (“the combined vehicle”).  He alleges that the collision was caused through the negligence of the first defendant, the driver of the combined vehicle. The plaintiff claims damages for personal injuries totalling $404,398.46,^[1] and costs, which he contends arises from the first defendant’s negligence.
2. [2]
   The second defendant is the insurer of the first defendant.  The defendants deny liability, and the quantum of damages is in issue.
3. [3]
   On liability, the defendants primarily deny liability, but alternatively submit that the plaintiff’s driving contributed to the cause of the collision to such an extent that an apportionment of 75 % contributory negligence should be found. 

 An objection to evidence

4. [4]
   On the first morning of trial, the defendants objected to portions of an expert report intended to be relied on by the plaintiff. The report was authored by Dr Raymond Hope, a consulting mechanical engineer. Some objections were the subject of agreement between the parties. The remaining objection was to a part of the report only, which succeeded, and the balance of the report became exhibit 23. There was a consequential objection to parts of a file note of a conversation with Dr Hope, which ultimately became exhibit 24. I gave rulings in the course of the trial, each with some particularly brief reasons.^[2] These are now more detailed, albeit still brief, reasons for that ruling.
5. [5]
   The objections were refined, in the course of submissions, to an objection to the opinion evidence as to the path that each of the truck (and hence the trailer) and the motorcycle took from Coronation Drive into Park Road.^[3] Those opinions were, in essence, said to be speculative and also not falling within the field of expertise of Dr Hope. Broadly speaking, the impugned passages were sought to be justified as being scientific and mathematical extrapolations from non-contentious facts that went to a central issue.
6. [6]
   There was no dispute as to the state of the law on the topic of admissibility of expert evidence, and I was referred to Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors (No. 5),^[4] R v Faulkner^[5] and Brown v Daniels & Anor.^[6] I had regard to those authorities, and the authorities mentioned in them in making my rulings.
7. [7]
   In the circumstances of this matter, there is no need to undertake a detailed consideration of the law on the topic. In essence, Dr Hope in his report has taken the accepted starting positions of each vehicle on Coronation Drive and the accepted resting position of the truck, accepted that the point of collision was at or near the resting position of the truck and opined that each had taken a certain course.
8. [8]
   To borrow, and adapt, the conclusion of Davis J in Brown v Daniels & Anor: ^[7]

“These opinions are, with respect, not truly based on any science. They are simply conclusions which are drawn from physical evidence. No science or expertise is identified as the basis upon which the conclusions are drawn. The Court is in as good a position as Dr [Hope] to consider the evidence and draw conclusions as to the movement of the two vehicles … [prior to] the accident.”

9. [9]
   True it is that Dr Hope had regard to the specifications of the truck in question, but there was nothing about that which required the application of special knowledge, expertise or experience.^[8] The court was in as good a position to determine these matters as anyone else.
10. [10]
    If I am wrong in the conclusion concerning the path taken by the motorcycle, in so far as Dr Hope relied on the Statutory Declaration of the plaintiff dated 26 April 2017, which eventually became Exhibit 12, the accuracy of significant parts of that declaration was so fundamentally thrown into doubt in the course of the trial as to substantially undermine any opinion based on it.

Factual summary on liability

11. [11]
    On the afternoon of 1 November 2016, the plaintiff, a 47-year-old man, left his place of work at the Gardens Point campus of QUT to travel home to Barden.  He was riding a Honda CT 110 motorcycle, otherwise described by him as “not … a powerful motorcycle … a 20-year-old postie scooter”,^[9] as he regularly did.
12. [12]
    He took his usual route of travel, which took him along Coronation Drive. He approached the intersection with Park Road at Milton to his right at about 5.00 pm. There was a dedicated single lane right-hand turning lane at the traffic lights into Park Road.  Traffic was backing up at the traffic lights that controlled the intersection and he filtered between the traffic in the turning lane and the lane for traffic intending to proceed straight ahead.  His intention was to turn right, and he pulled in behind the combined vehicle which was stationery at the front of the queue intending to turn right.  He positioned himself to the centre or left of centre of the turning lane.^[10]  Given the size and shape of the trailer, the plaintiff was not likely to be visible in the first defendant’s rear vision mirror at that time.^[11]
13. [13]
    It is admitted by way of pleadings that the truck length was 5.19 metres long and 2.155 metres wide, and that the tandem axle trailer was not less than 4.475 metres in length, including the towbar, and 2.03 metres wide.^[12] The towbar extended about 30 centimetres from the rear of the truck.^[13] Therefore the overall length of the combined vehicle was admitted as being about 9.96 metres, and it its greatest width was 2.155 metres.^[14]
14. [14]
    The collision occurred shortly after both the first defendant’s and the plaintiff’s vehicles turned right into Park Road.  The physical features of Park Road are important. There are a number of aerial photos of the area in evidence, including Exhibit 4 which has marked on it agreed measurements of various areas.  In addition, my appreciation of the evidence about the area has been enhanced by a visit to the scene having been conducted during the trial.
15. [15]
    From the perspective of turning right from Coronation Drive, Park Road runs at an angle less than 90 degrees to it. There is a roughly triangular raised median strip at the face of the intersection. I say “roughly triangular” because it has been curved slightly, probably to accommodate the entry of traffic into the acutely angled Park Road from Coronation Drive.  Traffic turning into Park Road is heading effectively north. Associated with the roughly triangular median strip is an area for pedestrians to cross Park Road, that is at its intersection with Coronation Drive.
16. [16]
    There are two continuous white lines continuing north from either side of the roughly triangular median strip which meet some distance north of it and continue as a single unbroken white line that separates the north bound and south bound lanes of Park Road. The distance from the northern line of the pedestrian area crossing Park Road to where the two lines meet is measured at 13.54 metres.^[15] 
17. [17]
    Exhibit 4 is marked as showing the north bound entrance to Park Road as being 7.16 metres in width.  That needs to be approached with circumspection as it is measured on an angle when compared with other measurements of the width of Park Road and is also contributed to in part by the shaping of the western curbing in Park Road and the shape of the median strip itself.  The Coronation Drive end of the north bound lane of Park Road, despite its width, is a single marked lane.  The width varies between 5.22 metres and 5.7 metres.  The lesser width is measured close to the point where the two painted lines extended from the raised median strip join.
18. [18]
    After about 35 metres,^[16] the single north-bound lane is divided into two marked lanes, separated by an intermittent short white line.  The left-hand lane is available for parking at certain times of the day, but is a marked clearway after 4.00 pm.  As will be seen, there is no reliable evidence that any cars were parked in the left-hand lane at the time of the collision.
19. [19]
    Further along Park Road, and to the right, is the intersection with McDougall Street.
20. [20]
    There is a notable incline travelling north along Park Road, commencing very shortly after entering it from Coronation Drive.

The plaintiff’s account of the collision

21. [21]
    The plaintiff recalls turning into Park Road behind, but to the right-hand side of the trailer.^[17]  The truck had gone wide to make the turn and had gone to the left-hand side of Park Road and was completely straight when the plaintiff entered Park Road.^[18]  The plaintiff later clarified that the truck and trailer had straightened up before it entered Park Road.^[19]  It appeared to the plaintiff that the truck was going to stop “in the left-hand lane”.^[20]  At that time the plaintiff was 1.5 to 2 metres behind the truck.^[21]  He maintained his line which was about one quarter of the way across the lane from the right-hand side,^[22] and accelerated to overtake the truck on the right-hand side. At that time he was unaware of the length of the combined vehicle.^[23] There was no traffic coming in the other direction at that time.^[24]  He travelled a few more metres and the truck “swung wildly” to the right and the plaintiff collided with it,^[25] causing him to fall to the roadway.  He recalled that the truck kept moving after the impact and “wedged” his bike.  He accepted that the truck moved further up Park Road after the impact, but only in the sense of marginal forward movement achieved in a predominantly diagonal angle across Park Road.^[26]  He did not recall seeing any indicators activated on the truck immediately prior to impact.^[27]  He recalled that he was lying on the roadway such that part of him was lying on the painted portion of the lines extending from the median strip, but that most of his body was in the opposite lane of travel along Park Road.^[28] 
22. [22]
    The plaintiff was cross-examined on a series of aerial photographs of the intersection and its surrounds on which had been superimposed markings suggesting the length of the combined vehicle, and of the truck itself, from the approximate resting position of the truck. That position was calculated by Dr Hope, an engineer, and derived from photos taken at the scene sometime shortly after the collision,^[29] as well as an image from Google Maps apparently captured in April 2017.
23. [23]
    Broadly speaking, the cross-examination of the plaintiff on Exhibits 14 to 19 inclusive was designed to show either the impossibility or improbability of the plaintiff’s account of how the collision occurred by reference to the admitted overall length of the combined vehicle and the calculated resting position. The questioning focussed on the plaintiff’s assertion that the trailer had passed the more northern of the two white lines marking the pedestrian passage across Park Road before he commenced overtaking.  It is sufficient to note that, broadly speaking, the plaintiff denied the essence of the propositions put to him, largely because he did not accept the angle at which the superimposed lines were drawn and because the proposition did not accord with his own recollection.  I need not refer to this evidence in more detail as, for reasons which follow, I found this line of cross-examination unhelpful.
24. [24]
    In cross-examination the plaintiff accepted that he had completed a Statutory Declaration dated 26 April 2017, attached to which were two images on which he had marked what he then said was the approximate point of collision.^[30]  The plaintiff accepted that those markings were “nowhere near where the point of impact was”.  He said that error occurred through carelessness, he accepted that his mark was about 16½ metres further up Park Road than was the fact and he denied that he had done that to mislead.^[31]

Raymond Hope

25. [25]
    In addition to part of Dr Hope’s report being tendered, he was also called to testify.  There was no objection taken to the opinion evidence about the resting position of the truck, as illustrated in figure 14 of Exhibit 23,^[32] and I accept that figure accurately shows the resting position of the truck, as derived from the photos taken on the day of the collision. It does not purport to show the position of the trailer.

The first defendant’s account of the collision

26. [26]
    The first defendant was the driver of the combined vehicle.  He was taking a co‑worker, Michael Ryan, home to West End.  They had both been working at Yatala that day.  It was not the first time he had taken him home.  He intended that day, as he had previously done, to turn right into Park Road, right into McDougall Street, right into Cribb Street, left into Coronation Drive and to go onto the Go-Between-Bridge to access West End.
27. [27]
    He recalled taking a wide arc turning into Park Road so as “not to clip the curb, because its quite narrow pulling into Park Road”.^[33]  He assumed the indicator would automatically switch off after he turned.^[34]
28. [28]
    He recalled driving roughly down the middle of Park Road.^[35]  Conversely, in cross‑examination, he said he could not recall if the passenger side wheels the truck went close to the left-hand side of Park Road^[36] but accepted that it was possible.^[37]  He considered Exhibit 6E did not assist his recollection, because the actual positioning of the visible wheels of the truck and the trailer was not clear,^[38] but he ultimately accepted the positioning of the rear wheel of the truck in Exhibit 6E was consistent with the wide arc bringing the wheel close to the left-hand curb of Park Road.^[39]  He also maintained that at the point of impact he was turning towards Park Road and “my trailer’s still coming around Park Road”.^[40]
29. [29]
    He said he was in second gear by the time he was in Park Road,^[41] in which case the maximum approximate speed is 20 kmph.^[42]  He did not recall if the truck was fully laden, but the trailer was fully packed, which affects the acceleration capacity of the vehicle.^[43]  He had no intention of stopping in Park Road.^[44]  As he “come around in Park Road” he remembered a motorbike colliding with the side of the truck, which was the first he knew of the presence of the bike.^[45]  Immediately before impact he was turning into Park Road, and he said he did not make a sharp turn to the right just before impact.^[46] 
30. [30]
    He denied having straightened up in Park Road before the impact.^[47] He accepted that a signed statement by him referred to him having made the right-hand turn and having “straightened up into Park Road”, but suggested it was written down wrongly as he “would’ve turned straight up Park Road”.^[48]
31. [31]
    He said the first that he knew of the plaintiff was when he called out immediately prior to the impact.  He did not look in the rear vision mirror as he turned into Park Road^[49] and, while he was aware of cars being behind him when stationary at the lights on Coronation Drive, he was not aware of a motorcyclist being behind him.^[50]
32. [32]
    He said he stopped the truck when the collision occurred, although probably not at that precise moment.^[51]  He does not recall the vehicle rolling back after the collision.^[52]
33. [33]
    He saw the plaintiff lying on the road.  He was completely in the southbound lane of Park Road.^[53]
34. [34]
    In an unresponsive answer in cross-examination, the first defendant wanted it “noted” that the particular vehicle has “a very sharp steering turning circle”.^[54]

The account of the first defendant’s passenger

35. [35]
    Michael Ryan was the passenger in the truck.  He said a wide turn was taken into Park Road, so the trailer did not get caught on the curb on the right-hand side but, but added that “I wasn’t paying much heed”.^[55]  At the time of the collision he thought they were in the middle of the road and it happened as the truck was straightening up after coming out on the street.^[56]  However, he also accepted that as the truck entered Park Road, it was close to the curb on the left-hand side.^[57]  He had no recollection of it slowing down once in Park Road.^[58]
36. [36]
    He did not know if the truck stopped immediately upon impact,^[59] nor if it rolled back to be in its position as shown in Exhibit 6.^[60]  He did however theorise that it could have rolled back.^[61] 
37. [37]
    At one point of the cross-examination he asserted that “we’d have been straightening up” to avoid cars parked ahead in the left-hand lane, but then said he was reconstructing what happened “because that’s what we always did”.^[62]  He went on to refer to a car shown parked in Exhibit 6D (a car that I am satisfied was not parked in that position at the time of the collision) to justify his testimony, but then denied any reliance on the position of that car in the photo.  He maintained cars were parked ahead.^[63]

The law and the pleadings

38. [38]
    Road users owe each other a duty of care. In Vairy v Wyong Shire Council,^[64] it was described as “the duty to take all reasonable care for the safety of other users of the highway having regard to all the circumstances of the case”. Additionally, the plaintiff owed a duty to take reasonable care for his own safety.^[65]
39. [39]
    While those statements of the content of the respective duties remain apposite, the principles are now directly governed by sections 9-12 of the Civil Liability Act 2003 (“CLA”).
40. [40]
    In considering the New South Wales equivalent to s 11(1)(a) of the CLA,^[66] the High Court in Wallace v Kam^[67] observed that proof of causation for the purposes of that limb of the provision requires the application of the “but for” test.
41. [41]
    The relevant particulars of the negligence alleged in the amended statement of claim are as follows:^[68]

4. “At or about 5.00pm on 1 November 2016, the Plaintiff was driving the Honda travelling in a generally westerly direction along Coronation Drive at or in the vicinity of Park Road, in the State of Queensland when:

1. (a)
   …;

2. (b)
   …;

3. (c)
   …;

4. (d)
   When the traffic control signal indicated that traffic on Coronation Drive intending on turning right into Park Road could proceed, the truck turned into Park Road heading in a direction and position on the roadway consistent with traffic entering the left hand side of the lane of Park Road and proceeded to slow down as if to stop;

1. The Truck’s position on Park Road at the conclusion of its turn was consistent with it occupying less than half of the width of the north-west facing roadway; and
2. The Truck had straightened following its turn from Coronation drive to suggest it was travelling generally in the same direction as the roadway;

5. (e)
   As the Truck drove into Park Road in the position and direction referred to in paragraph 4(d) hereof, the Plaintiff rode his motorcycle in a direction and position from Coronation Drive into Park Road consistent with traffic entering the right hand side of the lane of Park Road where the Plaintiff had more than half the width of the north-west facing roadway of Park Road available to travel within by approaching the road with his direction and path along Park Road as he did.

6. (f)
   As the Plaintiff continued on his path on Park Road as described in paragraph 4(e) hereof, he was riding past and along the right hand side of the Truck which was positioned on the left hand side of the carriageway consistent with traffic proceeding into the left hand lane of Park Road;

7. (g)
   As the Plaintiff rode the Honda past the full length of the trailer and body of the Truck and when he was approximately adjacent to the front driver’s side window of the Cabin of the truck and driver’s rear view mirror, the truck suddenly turned to the right and into the path of the Plaintiff;

8. (h)
   When the Truck turned to the right while driving along Park Road, the driver’s side door and rear view mirror of the Truck struck the Plaintiff;

1. (i)
   When the driver’s side door and rear view mirror struck the Plaintiff he was knocked from his motorcycle into the carriageway for traffic travelling in a generally southerly direction along Park Road;

10. (j)
    When the Plaintiff was struck by the door and rear view mirror and knocked form (sic) his motorcycle, he fell to the roadway and sustained personal injuries.

5. The motor vehicle incident referred to in paragraph 4 hereof and its consequences were caused by the negligence or the wrongful act of the First Joint defendant for which the Second Joint defendant is liable pursuant to the provisions of the Act:

1. (a)
   Failing to take due care and attention whilst operating the Truck;

2. (b)
   Failing to operate the vehicle safely;

3. (c)
   Failing to drive in accordance with the Transport Operations (Road Use Management – Road Rules) Regulation 2009, in particular rules 129, 146, 148 and 148A;

4. (d)
   Failing to maintain, or keep the truck under, proper control as to prevent it from colliding with the Honda;

5. (e)
   Failing to brake, slow down or otherwise steer clear of the Honda in a manner that would prevent the collision;

6. (f)
   Failing to keep any proper lookout;

7. (g)
   Failing to remain within his lane or line of traffic when driving into Park Road;

8. (h)
   Failing to keep to the left when driving into Park Road;

1. (i)
   Failing to give any or any adequate indication of his intention to turn to the right;

10. (j)
    Turning to the right when it was not safe to so do having regard to the presence of the Plaintiff.

42. [42]
    The defendants in their amended defence pleaded, in answer to those paragraphs:^[69]

2. As to the allegations in paragraph 4 of the Statement of Claim, the Defendants:

 (a) …

 (b) …

3. (c)
   Deny the allegations in sub-paragraphs (d) to (j) (inclusive) as they believe them to be untrue as the collision did not occur in the manner described and the defendants, in direct support of this denial, say that in truth and fact:

1. (i)
   The First Joint defendant was occupying the single and only lane from which vehicle were permitted to execute a right hand turn into Park Lane (sic) from Coronation Drive;
2. (ii)
   At the point of entry from Coronation Drive, Park Lane (sic) only consisted of a single lane in the direction of travel of the First Defendant;
3. (iii)
   When the traffic control signal indicated that traffic on Coronation Drive intending on turning right into Park Road could proceed, the First Joint Defendant turned into Park Road into the single and only lane of traffic in that direction of travel;
4. (iv)
   At all material times, the First Joint Defendant remained within his allocated lane and proceeded fully in accordance with the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld);

(iva) The Truck did not slow down in Park Road but rather was accelerating in order to proceed up the rise from Coronation Drive up Park Road;

(ivb) The Truck’s position on Park Road during and at the conclusion of its turn was not such as to occupy less than half of the width of the left hand carriageway because;

1. (A)
   The overall width of the truck was 2.155 metres
2. (B)
   The truck was towing a trailer that was approximately 4.5 metres long;
3. (C)
   The total length of the truck and trailer was approximately 9.965 metres;
4. (D)
   The left hand carriageway of Park Road was less than 6 metres wide;
5. (E)
   At no time were the passenger side wheels of the truck or the trailer near or adjacent to the kerbing on the left hand side of the carriageway;
6. (F)
   The turning manoeuvre of the truck and trailer was such that the truck and trailer always occupied well over 50% of the available width of the carriageway;

(ivc) At the time the Plaintiff commenced to undercut the truck and trailer the trailing end of the trailer was still in Coronation Drive;

(ivd) The truck did not make a sudden turn to the right;

5. (v)
   As the First Joint Defendant was executing the turn into Park Road in the manner described in sub-paragraph (iii) above; the Plaintiff attempted to undertake (pass on the inside of the turning vehicle) the Joint First Defendant’s truck;
6. (vi)
   As a result of the Plaintiff attempting to undertake the First Joint Defendant’s Truck, the Plaintiff collided with the driver’s side rear view mirror of the Truck and subsequently fell from his motorcycle and onto the roadway and was injured.

3. The Defendants deny the allegations in paragraph 5 of the Statement of Claim as the defendants believe them to be untrue as the First Joint Defendant was not negligent and did not breach his duty of care to the Plaintiff, either as alleged or at all, and the defendants say that the accident was solely caused by the actions and negligence of the Plaintiff by driving in the manner pleaded in sub-paragraph 2 of this defence and by the Plaintiff accordingly:

1. (a)
   Failing to drive with due care and attention;

2. (b)
   Failing to keep any or any proper lookout;

3. (c)
   Attempting to undertake, or pass on the inside of the turning Truck;

4. (d)
   Failing to give way to the Turning Truck;

5. (e)
   Causing or permitting the Plaintiff’s Motorcycle to collide with the truck.

43. [43]
    At paragraph 4 of the amended defence, the defendants pleaded, further and in the alternative, an allegation of contributory negligence by the plaintiff, referring to s10 of the Law Reform Act 1995. The defendants bear the onus of proof, on the balance of probabilities, of proving contributory negligence.
44. [44]
    It is unnecessary to extract portions of the Plaintiff’s amended reply. It is sufficient to note that some uncontentious matters were accepted but otherwise the plaintiff maintained the account pleaded in the amended statement of claim and denied those allegations in the amended defence which were contrary to that account.
45. [45]
    It can be seen that the plaintiff asserts a breach of what I will broadly refer to as traffic regulations on the part of the defendant. While a breach of the regulations, if proven, is a relevant consideration it is not definitive of the respective duties of drivers to each other. Nor is their breach conclusive as to the proof of the breach of the duty owed to one another.^[70]
46. [46]
    As contributory negligence is pleaded, sections 23 and 24 of the CLA and section 10 of the Law Reform Act 1995 are also relevant. A person may be guilty of contributory negligence if the person contributed in some way to the injury suffered.^[71]
47. [47]
    The process of apportionment as between the parties requires a comparison both of the degree of culpability and of the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each party which must be the subject of comparative examination, in light of the circumstances of the collision.^[72]

Factual findings on liability

48. [48]
    In circumstances where the relevant events occurred over a short period of time and the best part of five years prior to trial, there is a real risk that witnesses’ memories will not reliably recall relevant events.  The witnesses’ accounts must therefore be scrutinised before they are accepted. That scrutiny will usually occur by reference to other evidence which is not subject to the vagaries of recollection.
49. [49]
    Generally, I found the plaintiff to be an honest witness who did his best to recall events accurately. He was perhaps overly cautious in his responses during cross-examination, and at other times a little combative, but I consider that to be likely to the stress of the situation and the unfamiliarity of the witness box.
50. [50]
    However, as his markings on the photos attached to Exhibit 12 demonstrate, his reliability cannot be accepted without qualification.  Those markings are wrongly placed by a significant distance, and I consider were the result of a reconstruction by him.  I considered his explanation to be a little flippant, however I am not prepared to accept that they were drawn in a deliberate effort to mislead.  It seems unlikely that would be the case when it would have taken only one moment’s thought to realise others could more accurately place the point of collision.  I therefore accept it was an error.  There are also other aspects of his account which cannot be accepted.
51. [51]
    The first defendant and his passenger both presented as being generally disinterested in participating in the proceedings and, at times, reluctant to testify. Further, there were many internal inconsistencies in their respective accounts, perhaps accounted for by their respective disinterest.  I am however not prepared to discard the whole of their testimonies on these bases, but it does mean that their oral accounts should only be accepted after scrutiny, and preferably if supported by other reliable evidence or where the topic is not in dispute.
52. [52]
    I accept that the point of collision on the roadway was approximately at a point a little behind where the front drivers side corner of the truck is shown in Exhibit 6A, and hence as shown in figure 14 of Exhibit 23.  That is, I find the point of collision was on the right-hand side of the then single lane in Park Road.
53. [53]
    For reasons to be given, I conclude that this was a low-speed collision, although a more accurate statement of speed cannot be given.  Natural human reaction is to stop as soon as possible after becoming aware of the impact. This is consistent with the evidence of the first defendant. As it was a low-speed collision, the place where the vehicle was stopped would be close to the point of impact. Although the plaintiff recalled the truck continuing to travel forward and damaging his motorcycle, he maintained it was predominantly in a diagonal direction across Park Road.  Further, Exhibits 6C, 6D and 6E show comparatively little damage to the motorcycle, suggestive of little further travel by the truck after collision given that the collision itself was unlikely to have caused much observable damage to the motorcycle. 
54. [54]
    There is no credible evidence that the truck rolled backwards after the collision.  There is some speculation, but no credible evidence.  However, the degree of incline of Park Road is sufficient to make it possible that it did roll back. In the absence of any direct and reliable observation of that, I consider that the distance that it may have rolled back to be so small as to not relevantly affect my conclusion about the point of impact on the roadway. If it did roll back that short distance, given the angle of the front tyres of the truck and what can be seen of the angle of articulation of the trailer,^[73] it is unlikely to have pushed the trailer back down Park Road, but may have made the angle of articulation between the truck and trailer more acute. In any event, the distance I consider it may have rolled back is so little that it would make little real difference. 
55. [55]
    I accept that the first defendant took a wide arc turning into Park Road from Coronation Drive.  That is consistent with all accounts, and it accords with common sense when one looks at the angle of Park Road at the intersection.  To do otherwise, one would run a substantial risk of clipping the centre roughly triangular median strip, especially when towing a trailer. 
56. [56]
    However, there is no reliable evidence as to how wide the arc was, nor a more precise description of it. More particularly, the first defendant marked the track of the centre of the truck in taking that arc on Exhibit 26. While views may differ, it might be thought to be not a particularly wide arc, and the course he plotted that the truck took up the centre of Park Road does not sit well with other aspects of his testimony, nor other evidence. That aspect of his account cannot be accepted, nor can the plaintiff’s recollection on this aspect, for reasons which follow.
57. [57]
    The final resting position of the truck, as accurately shown in Exhibit 6E and figure 14 of Exhibit 23 puts the rear passenger side wheel of the truck close to but not in the left-hand kerbing of Park Road. Even allowing for some slight rolling back, this was the approximate position of that wheel at the time of the collision, meaning that the vehicle was to the left, but not the extreme left, of Park Road shortly prior to the collision.
58. [58]
    However, Exhibit 6E shows that there was an angle of articulation between the truck and trailer such that the trailer was not directly in line with the truck shortly before the collision. I conclude that the path taken was such that, as it is an articulated vehicle, the trailer was still coming into line with the truck. It follows that even if the truck was facing directly up and was in in the left-hand half of Park Road after it passed the northern line of the pedestrian passage, which I doubt, the trailer had not yet come into that line with the truck when it passed the northern line of the pedestrian passage. It cannot have done because it still had not taken up that line when it was past the northern pedestrian line as shown in the exhibit.
59. [59]
    In other words, the combined vehicle was taking up notably more than 50% of the lane way at the time it passed the northern pedestrian line. I therefore cannot accept the plaintiff’s assertions that the combined vehicle was in a straight line facing up Park Road when it crossed that line, or indeed at any time.
60. [60]
    In reaching that conclusion I have had no regard to Exhibits 13 to 19 inclusive. It is common ground that the position of the truck in figure 14 of Exhibit 23 accurately represents the position of the truck as seen in photographic Exhibit 6A taken on the day of the collision. The same cannot be said for the markings made on the defendants’ behalf on Exhibits 13 to 19 inclusive.  The accuracy of those markings was contested by the plaintiff in cross- examination and, in my view, they can only be accepted to such a level of generality that they are of no assistance.
61. [61]
    The accuracy of the markings on Exhibit 4 was not in contest.  Although it does not purport to show a precise distance from the northern line of the pedestrian passage across Park Road to the point where the front driver’s side corner of the truck rests, reference to the 13.54 metre marking satisfies me that the resting position of that corner of the truck was about 11 or 12 metres in a straight line from the northern pedestrian line.
62. [62]
    Each of Exhibits 13 to 19 are afflicted with the difficulty that the illustrated position of that corner of the truck is not only an estimation of where it came to rest, but that a small difference in the placement of the marking can make a real difference in calculation. The difficulty in accurately placing the resting point of that corner of the truck in Exhibits 13 to 16 is exacerbated by the fact that the spot on the roadway is clouded either by heavy shadow or overlying tree foliage.  The potential for inaccuracy is obvious. 
63. [63]
    Some examples will illustrate the point. First, Exhibit 16 suggests that the straight-line distance from the northern pedestrian line to the point of rest of that corner of the truck is 9.97 metres, measured on an angle.  I do not accept that to be the case. Second, if one adds the marked distances on Exhibits 13 and 16 to calculate the total distance from the northern pedestrian line to a point that appears to be only a little short of the commencement of the marked lanes in Park Road, it totals 30.53 metres.  The actual distance is a little under 35 metres.^[74]  This again illustrates the generality with which this group of exhibits must be approached. 
64. [64]
    Exhibits 17 to 19 were admitted only on the basis of cross-examination in which the plaintiff was asked to assume that the markings were accurate.  Any acceptance of the markings therein was on the basis of that assumption, which the plaintiff clearly did not accept was accurate. 
65. [65]
    I am not prepared to accept those markings as accurate either.  Each of the lines is intended to represent the driver’s side of the truck and/or the trailer.  The inaccuracies earlier referred to apply also to these exhibits.  Further, where the trailer is represented, the position of it can be nothing more than speculative as, there is no credible evidence of its precise resting position.  Figure 14 of Exhibit 23 does not purport to show the trailer’s resting position and what can be seen of it in Exhibit 6E is, in my view, only sufficient to say that it was at an acute angle of articulation relative to the truck, but nothing more.
66. [66]
    Further, the markings on those exhibits suggest that the trailer was connected to the rear driver’s side of the truck when it was in fact connected to the tow bar, which itself was in the centre of and protruding from the rear of the truck.  This necessarily must change the angle of articulation from that represented in the exhibits.
67. [67]
    For those reasons I consider Exhibits 13 to 19 to be of no assistance.
68. [68]
    It is inherent in what I have found that I reject the first defendant’s account to the effect that the collision occurred as the truck was turning into Park Road.
69. [69]
    Obviously, there was a short period of time between the plaintiff entering Park Road and the collision occurring, but I cannot calculate how long that was with precision. I accept that the truck continued moving forward after entering Park Road but I consider that as it reached the incline, whether in first or second gear and towing a fully laden trailer, it is likely that its already relatively slow rate of acceleration reduced, and it may have in fact slowed down.  I accept that the plaintiff may well have perceived that it was stopping, but I also accept that it was not intended that it stop, nor that it did so prior to the collision.
70. [70]
    I find that the plaintiff did turn into the right-hand side of the northbound lane of Park Road in an effort to pass the combined vehicle on its right, perhaps thinking that it was going to stop. At that time, the combined vehicle was occupying more than 50% of the width of Park Road. I am unable to conclude, if it is necessary, whether the trailer had passed the northern pedestrian passage line at that time. The only direct evidence on the topic comes from the plaintiff, who is unreliable in another aspect of the position of the combined vehicle when he entered Park Road, and I am unwilling to accept his evidence on this aspect, for that reason, without corroboration.
71. [71]
    In turning into Park Road in the manner he did, the plaintiff joined the first defendant in occupying the then but single marked lane for traffic which was, however, wide enough to accommodate two vehicles. Given the point of impact, the illogicality of deviating towards the truck and the fact that staying to the right is consistent with the plaintiff’s intended course of travel down Park Road, I accept that the plaintiff maintained his line of travel on the right-hand side of the lane at all times, as he testified. 
72. [72]
    The resting position of the truck, as shown in figure 14 of Exhibit 23, is at an acute angle to the centre lane marking.  Given it has come from the left-hand side of the lane, it has had to have turned relatively sharply to achieve that acute angle.  This is generally consistent with the plaintiff’s description of the truck having “swung wildly” to the right. The truck’s ability to do so is corroborated by the first defendant’s evidence that this particular truck has a very tight turning circle.^[75] I accept that the first defendant did move the truck suddenly to the right immediately prior to the collision and into the path of the plaintiff.
73. [73]
    The particular angle at which the truck is resting relative to the lane is inconsistent with the defendants’ submission that the first defendant should be taken to have been performing a continuous turning arc into Park Road. While I accept that the first defendant was probably travelling into the right-hand side of the lane to facilitate a right-hand turn into McDougall Street, the angle at which the truck was at rest relative to the single lane compels a finding that he did turn the truck sharply to the right shortly prior to the collision, and more sharply than required to simply position himself on the right-hand side of the lane.
74. [74]
    Exhibit 6A shows that the front wheels of the truck are pointed distinctly to the left in comparison to the front of the truck or, in other words, pointing up the roadway.  It may be that was, in part, as a result of the first defendant steering away from the plaintiff when he became aware of his presence.  However, I consider the dominant reason is more likely to be that having steered his truck too sharply to the right, the first defendant was straightening up to proceed further up along Park Road, to facilitate turning right into McDougall Street.  I prefer this to be the dominant reason as it would otherwise inexplicably mean that the truck would have proceeded into, if not across, the south bound lane of Park Road had it not collided with the plaintiff.  That path is also, according to Mr Ryan, consistent with what was usually done when turning into Park Road.
75. [75]
    By executing that manoeuvre, and by not giving way to the plaintiff who was in the same lane, I am satisfied that the first defendant was in breach of reg. 148A of the Transport Operations (Road Use Management – Road Rules) Regulation 2009.
76. [76]
    By the first defendant’s own testimony, he did not look in his rear-view mirrors for the presence of other vehicles on his right once in Park Road. I accept that to be the case. It is also likely that the truck’s indicator automatically switched off when the truck straightened up in Park Road. There is no evidence that it was reactivated before the truck turned to the right in the single lane.
77. [77]
    Given that the motorcycle was not a powerful vehicle, and so was not travelling particularly quickly, and given that the length of the combined vehicle was almost 10 metres (albeit a little less if the truck and trailer were not in a straight line), there was some appreciable time during which the plaintiff would have been visible to the first defendant, had he looked before he turned sharply to the right. Had he done so he could have braked, turned or taken other action to avoid the collision.
78. [78]
    I accept that the plaintiff came into contact with the truck on the driver’s side, and near the front of it.  The damage to the indicator light, as minimal as it is, and the displacement of the driver’s side external rear view mirror forward of its usual position, is consistent with the contact occurring in that area.  This is consistent with the plaintiff’s recollection and with the defendants’ pleadings.
79. [79]
    There is no obvious paint or panel damage near the indicator or the external rear view mirror.  This, together with the minimal damage to the indicator light, is suggestive of the contact being of relatively low impact and low speed. This is consistent with entries in the hospital notes and, allowing for the fact that the truck is likely to have travelled a short distance after the exact moment of impact, the plaintiff was likely to be lying close to the point of impact and across the painted road markings extending from the raised triangular median strip.  That is, the position recalled by the plaintiff is more likely to be correct than him having been thrown completely into the southbound lane of traffic as the first defendant recalled.
80. [80]
    It is not contested that the plaintiff was injured as a result of colliding with the truck and falling from the motorcycle onto the roadway.^[76]

Conclusion on liability

81. [81]
    Each of the plaintiff and first defendant had a duty to take precautions against a risk of harm.
82. [82]
    By turning the truck sharply to the right within the single lane of travel without prior indication or checking for the presence of other vehicles or persons in the lane, the first defendant failed to take precautions against causing harm to others. The defendants’ reliance on “following vehicle cases” is not a complete answer given the decisive conduct in the collision is the sudden change of direction by the first defendant.^[77]
83. [83]
    In circumstances where the first defendant was at some stage on the left of the lane, where he was travelling relatively slowly, where there was to his knowledge other traffic behind him in the turning lane, where the lane was wide enough for two vehicles to fit in it, where a second lane was marked a short distance away and where the indicator light had not been reactivated after being automatically turned off in the course of initially turning into Park Road, there was a risk which the first defendant ought reasonably to have known existed that another person or vehicle may have been in that lane adjacent to, or close to, him.
84. [84]
    In my view the risk of that occurring was not insignificant and a reasonable person in the position of the first defendant would have taken precautions against that risk by giving prior indication of an intention to turn, or by checking the rear view mirrors or by taking and other available steps to ascertain that there was no other person or vehicle likely to be affected by the taking of that sudden manoeuvre. Had the first defendant done so, it is likely that he would have been aware of the plaintiff trying to overtake on the right, given the time that it must have taken the plaintiff to get to the point of collision.
85. [85]
    On the other hand, I am also satisfied that the plaintiff failed to take precautions against the risk of harm by turning into the then single lane of Park Road and attempting to overtake the combined vehicle on the right-hand side when he was not aware of the length of the combined vehicle and when it was too early in the combined vehicle’s turning manoeuvre to be assured of its path up Park Road. It was foreseeable that, for whatever reason, the combined vehicle might veer right or otherwise take up space to its right in the single lane. The plaintiff was riding a small motorcycle and had little protection should that have happened. In those circumstances, the risk of harm was not insignificant.
86. [86]
    I consider that a reasonable person in the position of the plaintiff would have taken precautions that were not in fact taken, for example maintaining a position behind that combined vehicle, whether directly behind it or not, and not commencing to overtake until the two marked lanes commenced 35 metres up the roadway, or at least waiting longer to ensure that the presumed line of travel of the combined vehicle to the left of the lane was in fact maintained.
87. [87]
    The plaintiff has emphasised that, notwithstanding the responsibility cast on a following driver, it does not automatically mean that a following driver is completely or partly negligent and at fault. That is of course true, as each case must be determined on its own circumstances.^[78] Those cases where the following driver has been held to not be negligent at all are ones where that driver had not acted without reasonable care for his own safety, in the circumstances.^[79] The decision by the plaintiff to overtake, made so early in the turning manoeuvre undertaken by the first defendant, was executed too early to allow for a conclusion that he has not been contributorily negligent. As a following vehicle the plaintiff did have a heavy responsibility, but I need to be careful not to overemphasise that responsibility.^[80]
88. [88]
    In undertaking the process of apportionment, I recognise that the injuries would not have been caused but for the respective breach of duty by each party. In considering both of the degree of culpability and of the relative importance of the acts of the parties I consider that the collision was primarily due to the negligence of the first defendant. The sharp turn of the vehicle was highly irregular and not reasonably foreseeable to other road users. On the other hand, the overtaking on the right by the plaintiff is not all that unusual, even though risky. Against that must be factored his responsibility as a following driver.
89. [89]
    I assess the contribution of the plaintiff’s negligence to the collision at 40%.^[81]
90. [90]
    As the insurer, the second defendant is liable to the same extent as the first defendant.

The pleadings on quantum

91. [91]
    The plaintiff has pleaded that, as a consequence of the collision, he suffered the following personal injuries:

    1. (a)
       A Cervical spine injury;
    2. (b)
       Right Shoulder injury;
    3. (c)
       A Lumbar spine injury;
    4. (d)
       Haematoma to the arm through haemorrhage;
    5. (e)
       Chest injury with injury to the ribs;
    6. (f)
       Nervous shock and psychological injury;
    7. (g)
       Injury resulting in cervicogenic headache;
    8. (h)
       A head injury.
92. [92]
    He claims damages under various heads of damage, including interest where available.
93. [93]
    The defendants admit that as a result of the collision the plaintiff suffered a soft tissue injury to the cervical spine and right shoulder, and a concussive injury, but otherwise deny that the claimed injuries were caused by the collision. The defendants also put in issue the quantum claimed under many of the heads of damage.

The plaintiff’s circumstances

94. [94]
    The plaintiff was born 19 September 1969. He was just over 47 years old at the time of the collision, and is presently 52 years old.
95. [95]
    He was married in 2000 and has three daughters born in April 2005, December 2006 and June 2009 respectively.
96. [96]
    As at the date of this judgment, his notional retirement at 67 years of age is about 14½ years away. The 5% discount multiplier for 14 years is 529.
97. [97]
    As at the date of judgment, he had a life expectancy of 32.23 years.^[82] The 5% discount multiplier for 32 years is 845.
98. [98]
    A period of 5.31 years (276 weeks) has elapsed since the collision.

The evidence on quantum

The plaintiff

99. [99]
    Immediately after the collision, the plaintiff described that he was “pretty banged up” and “pretty sore all over”. He was particularly sore down the right side of his neck and his arm which had struck the truck, but his lower back and his shoulder were also sore.^[83]
100. [100]
     At the hospital he recalled being given as many painkillers as possible for his headache, and his left arm swelled to the point that concerns were being expressed about circulation in it.^[84] The was released from hospital the afternoon following the collision.
101. [101]
     He testified that the headaches were persistent and varied in intensity. They resulted in him consulting a number of different medical practitioners, including a neurologist, and other allied health practitioners. He was prescribed various medications at different times.
102. [102]
     He suffered a flare up in Easter 2017, which started presenting as a headache and neck pain, but which progressed to radiating through his shoulder and the top of his chest. As a result, he was hospitalised overnight.^[85]
103. [103]
     He did not return to work for a few weeks, but was paid through WorkCover.^[86] When he did return, his performance was affected by the pain and headaches, and this has persisted to the present time.^[87] He continues to suffer pain and associated phenomena such as tingling fingers, to the date of the trial.^[88]
104. [104]
     The pain and headaches, and the means he uses to deal with them, has affected his relationship with his wife and with his three daughters. He previously was a hands-on father, but can longer do what he used to do. He senses that he is now not as close to them as he previously was.^[89] He and his wife have drifted apart. There has been a loss of intimacy between them and they have attended a number of marriage counselling sessions.^[90]
105. [105]
     The pain and headaches have restricted his social activities, such as golf and fishing. Further, the plaintiff is worried that the need to accommodate his limitations will result in less offers for him to perform for Opera Queensland, with whom he has been associated for 25 years and from whom he also receives some income.^[91]
106. [106]
     At the time of the collision, the plaintiff had been active around the house, including the performance of household chores, maintenance of the yard and maintenance and renovations to the house. He now has to pay tradesmen to perform some of the renovation tasks he would himself have done and his wife does effectively all the household chores. Presently his daughters mow the lawn and collect fallen leaves. He does not know who will do that when they leave home, but thought he may have to pay people to do it.^[92]
107. [107]
     The plaintiff is the sole income earner in the household.^[93] His main source of income was through his employment as a learning designer at QUT. So that he may be employed under a more lucrative industrial award as an academic, he was at the time of the collision undertaking a PhD by thesis. He testified that he started that in early 2016.^[94] It was anticipated that it would be completed after three years.^[95]
108. [108]
     As a result of the injuries suffered in the collision, the plaintiff found he could not undertake his studies to the same standard and with the same efficiency as he had previously achieved. By taking leaves of absence from the PhD studies, and through an extension, he was at the time of the hearing required to submit his thesis by 22 December 2021. There is no evidence whether or not that was achieved, but he testified to the effect that he was concerned that it would not be achieved.^[96] His understanding was that there was no real option for a further extension of time, in which case he will have to remain in his current role.^[97]
109. [109]
     Although he is listed as a co-author of a number of publications and presentations,^[98] all but two of them were completed prior to the collision, and the other two are chapters from his PhD thesis.
110. [110]
     He is currently paid at step 5 of level HEWA8 on the applicable professional staff salary scales.^[99] Had he earned his PhD in the original three year timeframe, he expects that he would have been paid at least in accordance with step 6, level B as shown on the academic pay scales in Exhibit 5, and higher if he had also been promoted. Promotions can be applied for once a year.^[100]
111. [111]
     The cross-examination of the plaintiff did not suggest that any of the complained of injuries did not exist.

The plaintiff’s wife.

112. [112]
     Amanda Kickbusch testified that prior to the collision the plaintiff was “very light-hearted, friendly, happy, go-getting, full of energy, understanding, patient”. Since the collision, she said, he had changed a lot.^[101]
113. [113]
     She testified that prior to the collision the plaintiff did a lot of cooking, that he helped around the house a lot, he helped with everything around the house, he did cleaning, garden work and helped take the girls to school and their after-school activities. After the collision she “picked up on everything”.^[102] The position is maintained to the present day.
114. [114]
     She has noticed that her husband frequently appears to be suffering headaches or other pain. She has also noticed differences in the way he now approaches his PhD studies.
115. [115]
     It is otherwise unnecessary to summarise her evidence in detail.Her testimony was generally consistent with the plaintiff’s evidence where the two were concerned with the same topics. She was not cross-examined.

Dr Sternberg

116. [116]
     Dr Jason Sternberg was, at the time of the collision and for some time prior, both a work colleague and one of the plaintiff’s PhD supervisors.
117. [117]
     Prior to the collision he found him to be “very diligent, very engaged, a very sharp thinker both in terms of long term issues and strategies … and also someone who’s able to solve issues quickly as they arise and need to be dealt with necessarily”.^[103]
118. [118]
     Since the collision he “noticed a considerable decline in his – generally speaking, his sharpness, his ability to process information and act (sic) on information takes longer than it once did. He – I think it’s fair to say his attitude towards study has changed, whereas, once upon a time, obviously doing any form of study is a challenge but Steven embraced that challenge. And – since the accident, it – it seemed to become more of a burden for him than it once was”.^[104] He also observed that after the collision, and in relation to his PhD studies, “his head really didn’t seem in the game”^[105] and that his research was progressing considerably slower than it should.^[106]
119. [119]
     He said that it was possible for the plaintiff to apply for a further extension to submit his PhD thesis, on compassionate grounds, but said that its success was certainly not assured.^[107]

Medical records

120. [120]
     Exhibit 10 comprises large bundles of records and notes from the Royal Brisbane and Women’s Hospital, including Queensland Ambulance Service records, as well as several doctors’ practices and other allied medical health practitioners’ practices. It was admitted in that form by agreement. It is unnecessary to detail its contents other than to note that its contents are supportive of the plaintiff’s account of the injuries suffered and that he has been prescribed various medications at various times.
121. [121]
     Exhibit 11 comprises a series of invoices from certain allied health practitioners. They were admitted only for the purpose of proving the dates of the plaintiff’s attendance upon those practitioners.^[108] That treatment occurred between July 2020 and March 2021, and they thereby reflect recent treatment.

Dr Campbell

122. [122]
     Dr Scott Campbell, a neurosurgeon, was called by the plaintiff and had examined him on 20 February 2018,^[109] and again on 13 December 2018.^[110]
123. [123]
     In relation to the examination of the cervical spine on the first consultation, he observed a restricted range of movement by 30-40% in all directions. He noted pain at the extremity of the movements and asymmetry of flexion and extension. He also noted tenderness and guarding over the cervical paraspinal muscles bilaterally. There were no acute injuries shown on CT scans.
124. [124]
     He diagnosed the plaintiff as suffering a whiplash injury of the cervical spine, and assessed him as suffering a 7% Whole of Person Impairment (“WPI”) under the American Medical Association Guidelines 5^th Edition (“AMA5”) DRE Category II.
125. [125]
     He noted that chronic whiplash type symptoms are very difficult to manage and that the plaintiff’s restrictions are likely to present indefinitely.
126. [126]
     On the second consultation, the examination revealed similar results, including asymmetry of all movements, although now he observed 50-60% restriction in range of movement and tenderness and guarding to the right side only. His assessment of the degree of impairment was unchanged. He considered that the ongoing headaches were likely to be cervicogenic in nature, rather than being caused by post-concussion syndrome.
127. [127]
     In cross-examination he accepted that had the plaintiff presented with no asymmetry of movement and no guarding, an assessment under DRE II would not be appropriate. In that instance he would not have made an assessment under DRE I, but would have assessed a 1-3% WPI under Chapter 18 of AMA5, which chapter deals with pain conditions.
128. [128]
     His evidence as to what constitutes asymmetry is important, and is worth repeating verbatim:

“So asymmetry of movement, as I was saying, is a turning of the head one way or another during that range of movement so that it’s off alignment. So the guides ask is there asymmetry or is there not asymmetry. They don’t ask by how much. … So I’m reporting that there was asymmetry of movement. Now, furthermore, a lot of doctors think asymmetry of movement means you’re restricted in one direction by 30 per cent and then another by 50 per cent. That’s incorrect. An asymmetry of movement is actually one movement. You take flexion, which may be restricted, and then the asymmetry comes from whether you deviate from one side to another or you stay in the midline.”^[111]

129. [129]
     He accepted that different doctors can legitimately arrive at different measurements for loss of range of movement, and that even the same doctor can come up with different measurements on different days. There is also the possibility that a patient had improved or worsened between different consultations.^[112]

Dr Khursandi

130. [130]
     Dr Habibullah Khursandi is a consultant orthopaedic surgeon who was called by the defendants.
131. [131]
     He examined the plaintiff once, on 17 October 2019. On the examination of the head and neck, he noted that the range of movement was restricted to a range of 35^o for each assessment of flexion, extension and lateral flexions to the left and right (each with a normal range of 45^o) and for rotations to the left and right to 70^o (normal range 80^o). He observed that the range of movement was symmetrical and the movements were associated with pain and tenderness was present in the mid and lower soft tissues of the paraspinal muscles.
132. [132]
     He diagnosed the plaintiff as suffering a “Musculoligamentous sprain, cervical spine” and resolved soft tissue injuries of the right shoulder, both forearms and chest. He considered that the neck injury had now stabilised and had reached maximum medical improvement.
133. [133]
     Under Cervical Category Section II(B) of Table 15-7 of the AMA5 he assessed a WPI of 4%.
134. [134]
     Under cross-examination he accepted that had he utilised the DRE categories of AMA5, he would have assessed 0% impairment, but he considered that would be inappropriate.
135. [135]
     He considered that the difference in the observations as between his and those of Dr Campbell could be accounted for by an improved range of movement gained during the time between the two examinations.^[113]
136. [136]
     He conceded that the various treatments, including medications taken, were appropriate for the injuries complained of.
137. [137]
     Dr Khursandi’s testimony as to his understanding of the meaning of the term  asymmetry should also be repeated verbatim:

“Doctor, you refer to measurements. They were measurements undertaken by use of a goniometer, weren’t they?---That’s correct.

And you’ve regarded them as symmetrical because they are equal side to side?---That is correct.

Doctor, do you have a view that asymmetry under the AMA5 Guides is not about the equal distribution of a restricted range of movement one side to the other?---Well – sorry, can you repeat the – what do you mean by - - -

It’s just - - -?--- - - - not – asymmetry not related to range of movement? How else would you then describe asymmetry?

So that’s the way in which you understood sym – asymmetry, Doctor?---Yes. Asymmetry, that means a symmetrical range of movement or asymmetrical range of movement.

All right. And for the - - -?---That means if they’re equal on both sides of the range, yeah, that’s symmetrical.”^[114]

Factual findings concerning injuries

138. [138]
     In relation to his recollection of his injuries and their sequelae, I find the plaintiff to be honest and generally reliable. His evidence was generally supported by medical records and allied health records, as well as the recollections of his wife and Dr Sternberg, both of whom I also consider were honest and reliable witnesses.
139. [139]
     The plaintiff pleaded that, amongst other things, he suffered nervous shock and psychological injury as a result of the collision. There is evidence that the plaintiff has suffered distress and upset at his predicament and ongoing management of his headaches and pain, but there is no evidence over actual nervous shock, nor of an identifiable psychological injury. That evidence remains relevant, but it does not prove that pleaded injury.
140. [140]
     Further, it is not clear to me what was meant by the pleaded “head injury”, but it perhaps matters little as it is in the scheme of things a minor injury, if it were proven.
141. [141]
     Otherwise, I am satisfied that the pleaded injuries were suffered as a result of the collision. As submitted by the plaintiff,^[115] it is the injury to the cervical spine that causes him the most discomfort, and the headaches and pain are the most significant symptom cluster from his perspective. There are ongoing restrictions to his working, social and family lives which result from them.  All of these are, I accept, permanent, given the effective consensus of opinion on the topic by Drs Campbell and Khursandi.
142. [142]
     It may be strictly accurate to say that the haematoma to the arm was transitory, if viewed in isolation, but it was serious in itself. The plaintiff accepts that the injuries other than those to the cervical spine, right shoulder and the suffering of headaches have resolved.^[116]
143. [143]
     The plaintiff will continue to require treatment and medication for at least many years, and likely the rest of his life, as a result of these injuries. I also accept that they have caused, and they continue to cause, him significant pain and discomfort. Further, they impose considerable restrictions and difficulties on his ability to perform his work duties and his studies and otherwise restrict and interfere with his ability to undertake the usual activities of daily life.
144. [144]
     Although the notes in exhibit 10 reveal previous attendances at medical practices and hospital, there was no pre-existing injury to impact upon the attribution of these injuries having been caused by the collision.

General Damages

145. [145]
     The claim for general damages relies on multiple injuries, namely injuries to the cervical spine and the right shoulder ,and the suffering of headaches. It is common ground that the appropriate approach to the calculation of general damages in circumstances such as this is stated by McMeekin J in Allwood v Wilson & Anor.^[117]
146. [146]
     There is a difference in the assessment of the WPI as between Drs Campbell and Khursandi. Although there was a greater range of movement on one of the tests at the examination conducted by Dr Khursandi, the assessed range of other movements is broadly consistent between the two doctors. The real difference lies in the fact that Dr Campbell noted asymmetry and guarding on both of his examinations, and Dr Khursandi did not. If Dr Campbell is to be preferred the appropriate assessment under AMA5 is DRE Category II, whereas if he is not the appropriate assessment is either under Chapter 18 or Cervical Category Section II(B) of Table 15-7.
147. [147]
     I accept that the lack of guarding on Dr Khursandi’s examination may be attributable to some resolution of the injury since the last of Dr Campbell’s examination, but I also accept that the plaintiff demonstrated asymmetry in motion, and hence the correct assessment falls under DRE Category II.
148. [148]
     That Dr Khursandi did not observe asymmetry is no answer to the issue; he was not looking for the same thing that Dr Campbell observed.^[118] Unfortunately, the issue was not the subject of precise exploration in the course of evidence, but I consider that Dr Campbell’s definition of asymmetry is the preferable one. First, it more closely accords with the definition in the AMA5 itself.^[119] Second, Dr Khursandi’s definition of the term would exclude from proper assessment those patients whose cervical injury caused a deviation off the midline on rotation, but whose rotations were equal from side to side whereas Dr Campbell’s concepts of asymmetry and flexion allow those patients to be assessed according to separate criteria. Thirdly, I consider that Dr Campbell provided a more considered explanation of why he defined the term in that manner, whereas Dr Khursandi was abruptly dismissive of any other possible definition.
149. [149]
     Given I accept that the plaintiff demonstrated asymmetry of motion at all relevant times, the proper assessment is under DRE Category II, which allows for a 5% - 8% WPI. Dr Campbell assessed it at 7%, but some allowance from that is proper to reflect what may have been some slight improvement since the last of his consultations with Dr Campbell. I assess a 6% WPI based on the cervical injury alone.
150. [150]
     That injury then sits appropriately within item 88 of Schedule 4 of the Civil Liability Regulation 2014 (the Regulations); Moderate cervical spine injury - soft tissue injury.^[120] That item allows for an ISV range of 5-10. Given a WPI of 6%, I consider an appropriate ISV, if considered in isolation, would be 8. This, in my view, appropriately reflects the distinction between the injury actually suffered and the nature of an injury that would fall within the bottom range of item 87.
151. [151]
     I accept the plaintiff’s submissions^[121] that, considered in isolation, the shoulder injury would be found in item 98, the lumbar spine in item 94, the chest injury in item 3.2, the arm haematoma in item 124 and the headaches in item 9. None of those items provide for an ISV above 5.
152. [152]
     The WPI is an important consideration in the assessment of an appropriate ISV, but it is not the only consideration.^[122] I also recognise that where multiple injuries are being considered, their effects can overlap. The plaintiff is a middle-aged man, with more than 30 years of life expectancy during which he must deal with the pain and restrictions he is presently suffering, and he has suffered notably to the present time.
153. [153]
     The plaintiff submits that an uplift of not more than 30% is appropriate.^[123] Given the extent of all of the injuries and the persistent and restrictive nature of the pain and headaches, I agree that 30% is an appropriate uplift. This will result in an ISV of 11.
154. [154]
     Accordingly, I assess general damages at $17,760.00.^[124] Interest cannot be ordered on an award for general damages.^[125]

Past Economic Loss

155. [155]
     The plaintiff contends that there should be a global award of $50,000 for past economic loss on the basis of lost opportunities in the completion of his PhD studies. It is contended that there are 3 distinct components to that claim; first a loss of time attending to work, second the value of lost opportunities to work as an academic at a higher level of pay and, lastly, the loss of benefits obtainable in relation to academic and research awards.
156. [156]
     It is common ground that the total amount paid by WorkCover for loss of wages and weekly benefits and lump sums should be included in this award. That amount is $15,986.89.^[126] That is the first component relied on by the plaintiff. It is common ground that interest should not be paid on this portion as the plaintiff had the use of the money since payment.
157. [157]
     Otherwise, the thrust of the defendants’ submissions is that there is no evidence of actual loss and that even if the plaintiff had earned his PhD, there is no evidence to show he probably would have increased his income by now.
158. [158]
     The issue requires determination of what the likelihood is that the plaintiff would have obtained his PhD, and when.^[127]
159. [159]
     I am satisfied that it was likely that the plaintiff would have earned his PhD in early 2019 had the injuries not been suffered, or at least relatively shortly after that allowing for the common occurrence of minor amendments being made to the thesis. The evidence as a whole, and with particular reference to that from Dr Sternberg, satisfies me that the plaintiff was making good progress on his thesis, albeit that he was still in the first year of the studies, and that he was a bright and motivated man who was well accomplished in this area. I am satisfied that he was capable of achieving his goal, and was driven to do so.
160. [160]
     The whole premise of the plaintiff’s evidence on this topic was that he would have been employed at the academic level, and there was no suggestion to the contrary in the cross-examination. There is some possibility that he would have been promoted but, if that occurred, I think it would likely have been relatively recently.
161. [161]
     The plaintiff was also not challenged in his assertion that at present he was remunerated at step 5 of HEWA8 and, had he been awarded his PhD after the three year timeframe, he expected he would have been at step 6, level B of the academic salary scales at the time of trial. The difference between the two gross wages from 1 December 2017 to 7 December 2019 was about $4,600.00 per annum, and about $4,800.00 per annum since the latter date. The difference between the step 6 level B remuneration and the next wage is about $3,600.00. Each of these amounts have been taken from Exhibit 5, and reflect pre-income tax payment. Some deduction must be made for that.^[128]
162. [162]
     It is unclear on the evidence how soon after earning the PhD he would be employed at the academic rate, but his testimony was to the effect that promotions are granted once a year. I am prepared to assume for these purposes that he would have received the step 6 level B wage at some time before 7 December 2019.
163. [163]
     The evidence is too tenuous to allow for the possibility of receipt of monetary awards for research and academic work to allow any component for this. There was no claim for loss of income from his employment from Opera Queensland.
164. [164]
     I award $24,000.00 for past economic loss, including the WorkCover component.
165. [165]
     Interest will be calculated only on that part of the awarded damages which does not include the WorkCover component, namely $8,013.11. Using the formula at section 60(3) of the CLA,^[129] that amount is $314.87.

Past loss of superannuation

166. [166]
     I award a sum of $2,280.00, calculated at 9.5% of the award of $24,000.00.

Future economic loss

167. [167]
     I consider it possible, but unlikely, that the plaintiff will be awarded a PhD, at least under this candidacy. At the time he testified, he had about 4 months before the extended deadline and still had what appeared to be a substantial amount of work to complete. He was considerably behind where he should have been. It may have been achievable if he was capable of doing that at full capacity, but I accept he is not capable of doing that.
168. [168]
     The defendants submit that it is highly unlikely that he would not complete his thesis given all the effort he has put into it.^[130] The defendants point to Dr Sternberg’s evidence that the plaintiff transferred from completing a Doctorate of Creative Arts to the PhD program on 8 February 2019 and submit that demonstrates in itself an ability to finish his PhD studies. Dr Sternberg’s evidence was also that there was an expectation that the work done under the previous doctorate would continue on for the purposes of his PhD,^[131] and so it is not that he had to cram a full three year’s thesis work into a slender timeframe. I do not accept his transfer of doctorates in itself shows that there was no significant interference with his ability to study.^[132] It does perhaps demonstrate a belief in an ability to complete the PhD, but in my view also evidences the gap between ambition and ability.
169. [169]
     It is true that Dr Sternberg left open the door for a further extension on compassionate grounds, but the manner in which that answer was given strongly suggests that it is theoretical possibility rather than a likely outcome. Certainly, the plaintiff believed that he would not be granted a further extension.
170. [170]
     Accordingly, I accept that there will be, or might be, financial loss as a result of the injuries being suffered.^[133]
171. [171]
     There is no evidence of a defined weekly loss into the future, and so precise calculation is not possible. Accordingly, section 55 of the CLA applies. Recourse can however be had to Exhibit 5 as to applicable wages in the immediate past to assist with broad assessments in the future, bearing in mind that those figures are pre-income tax amounts and some adjustment is required for that reason.
172. [172]
     On the basis of the evidence as to the plaintiff’s approach and attitude to work and study prior to the accident and his history of achieving professional recognition, I accept that, had he not suffered the present injuries, the plaintiff would likely have advanced into the level D academic pay points over the next 14 years, and conceivably to step 4 of that level. There is insufficient evidence to allow me to conclude that he would likely have achieved the level of a professor^[134] and the salary that attracts, but I do allow for the possibility. ^[135] There are limited positions of that nature and many applicants, but I accept that he would likely have promoted well.
173. [173]
     The plaintiff submits that an assessment of future lost earning capacity on a global basis in the amount of $250,000.00 is reasonable. Using the 5% discount multiplier, that reflects an average weekly loss of about $470.00 per week of pre-income tax earnings looking 14 years ahead. That figure is slightly higher than the median point in the difference between the plaintiff’s current earnings and the present step 4, level D pay point, which is about $450.00 per week gross. Applying a broad discount rate of 20% for income tax results in a nett weekly figure of $360.00. It seems to me that latter figure is appropriate.
174. [174]
     Using that amount and applying the 5% discount multiplier results in a nett figure of $190,440.00.
175. [175]
     The plaintiff submits that there should be no allowance for other contingencies because there is “no particular evidence relating to a particular contingency which would suggest that further discounting would be appropriate”.^[136] The submission was based on a reference to the four major contingencies (other than death) which expose employees to the risk of loss of income as being sickness, accident, unemployment and industrial disputes.^[137]
176. [176]
     The submission cannot be accepted. Some of the medical notes in Exhibit 10 demonstrate that the plaintiff is a man who has had some prior health issues (although none of them impact upon on the causation issue here), that he at least was a smoker, that he has at different times prior to the collision had issues with his cholesterol and glucose levels and has had issues with the control of his blood pressure.^[138] In addition to that, there are some imprecise references to his BMI, but Dr Khursandi^[139] recorded his BMI in October 2019 as being in the obese range. It cannot be said that there is no risk of illness making an allowance for contingencies inappropriate.
177. [177]
     Additionally, I cannot ignore the matter of public notoriety that the university sector in the last few years has had to restructure itself to cope with changing economic influences. It cannot be said that employment in that sector is as stable as it was once thought to be.
178. [178]
     An allowance of 10% for contingencies should be made. On that basis, and rounding up, I award damages of $171,396.00. It is not appropriate to order interest.

Future loss of superannuation

179. [179]
     I consider it appropriate to factor in future increases to prescribed superannuation contribution rates. Although the rollout of those increases has been delayed from that noted in Heywood v Commercial Electrical Pty Ltd,^[140] a similar rollout scheme has now been legislated, with the top rate to commence from 1 July 2025. Accordingly, the majority of the future loss for this plaintiff will be at the top rate. I accept the plaintiff’s submission that it should be calculated at 11.64%.
180. [180]
     Accordingly, I award $20,020.80 for future lost superannuation.

Past gratuitous services

181. [181]
     The ability to claim for gratuitous services is restricted by section 59 of the CLA. The second defendant asserts that, in effect there is no evidence to meet the threshold for gratuitous services for the benefit of the plaintiff and which had not been provided prior to the collision.
182. [182]
     In summary the evidence on this topic is that the household comprised two adults and three children, aged 11, 9 and 7 years at the time of the collision. The plaintiff testified that he helped with the cooking and the laundry. He maintained the house and yard and, specifically, mowed once per week in summer and once every few weeks in winter. He blew the leaves in the yard a couple of times a week, all year round. His wife testified that prior to the collision the plaintiff did a lot of cooking, that he helped around the house a lot, he helped with everything around the house, he did cleaning, garden work and helped take the girls to school and their after-school activities. After the collision she “picked up on everything”.^[141] The position is maintained to the present day. None of this evidence was put in issue by the defendants.
183. [183]
     Common experience compels the conclusion that at least 6 hours a week were being occupied with these tasks, and I accept that this occupied at least 6 months of the nearly five years between the date of the collision and the trial. The defendants are correct in saying that there is no direct evidence of the time spent doing that which the plaintiff previously did, but a threshold of six hours per week for a household of five people, including three young girls, is not difficult to meet where the plaintiff had previously been active in the household tasks.
184. [184]
     I recognise that there may have been the occasional week where the six hour threshold was not met, but I accept that there was at least six months in total of that period where it was.^[142] That conclusion is not affected by the fact that some, if not all, of these tasks are for the combined benefit of the whole of the household rather than exclusively the plaintiff.^[143]
185. [185]
     The parties have agreed on a rate of $35.00 per hour. The plaintiff seeks an award based on 8 hours per week for six months, a global allowance of $2,500.00 for the children managing the yard and home maintenance duties and then a further allowance of not less than $5,844.00 for other things the plaintiff would otherwise have done in the 251 weeks since the collision (as at the date of the submission).
186. [186]
     In my view the overall claim is reasonable. However, given the lack of specific evidence on the topic, the first component should be limited to the minimum six hours per week. On the other hand, the last component should be adjusted to accommodate the lapse of time between the date of the submission and the date of judgment.
187. [187]
     I award an amount of $14,386.00^[144] for past gratuitous care. Interest cannot be claimed on this amount.^[145]

Future gratuitous care and paid services

188. [188]
     The plaintiff seeks damages for future paid or gratuitous care at an average of 15 hours per year for 14 years to the age of 67 years. The defendants maintain that there is insufficient evidence to permit calculation of any award.
189. [189]
     I have already recorded that the gratuitous care provided to the plaintiff continues to the present time. Both Drs Campbell and Khursandi agree, in effect, that the plaintiff’s present restrictions will not resolve or improve in any real sense. The services now provided will have to be provided for many years. The plaintiff may have ready-made yard-persons at home, but his daughters will eventually move away, and paid services will be required. Further, most or all house maintenance will have to be performed by paid services.
190. [190]
     The claim seems reasonable. I award damages in the amount of $4,500.00.  Interest cannot be claimed on this amount.^[146]

Past special damages

191. [191]
     The parties are agreed on the quantum of past special damages, namely $17,509.00, and I award damages in that amount.
192. [192]
     By agreement between the parties, of that amount interest is claimed on $4,371.95. I order payment of interest in the sum of $171.79.^[147]

Future expenses

193. [193]
     The plaintiff seeks future expenses damages for medical and pharmaceutical expenses and travel expenses for medical, pharmaceutical and rehabilitation expenses. The amounts he seeks are $480.00 per annum ($9.23 per week) for medical expenses, $10.00 per week for pharmaceutical expenses and a global award of $2,500.00 for travel expenses. The plaintiff has used the wrong multiplier in his submissions. He accepts that there should be an allowance for contingencies at a rate of 15%.
194. [194]
     The defendants contend that he should be awarded no more than $5.00 per week, and only for pharmaceutical expenses. That submission cannot be accepted. It fails to recognise the likely need for lifelong attention to his injuries and their sequelae.
195. [195]
     Future medical expenses and pharmaceutical expenses will be allowed at the rates sought, but by using 845 as the multiplier, i.e. to the point of his life expectancy. The global amount for travel will also be awarded. The total award will be discounted for contingencies.
196. [196]
     I award damages for future expenses in the sum of $15,936.95.
197. [197]
     Summary of damages

Orders

198. [198]
     My orders are:

1. Judgment for the plaintiff in the sum of $173,085.25.
2. Unless the parties can agree on costs, submissions on costs from both parties, limited to no more than five pages, must be exchanged and filed no later than 4.00pm on 24 February 2022.
3. Any reply to those submissions, limited to no more than three pages, must be exchanged and filed no later than 4.00pm on 1 March 2022.
4. Liberty to apply.