Kruger v Cronn[2025] QDC 21

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiff claims damages for personal injuries sustained by him on 9 June 2017 when he came into forceful contact with the first defendant who was riding a dirt bike on a grassed footpath near the plaintiff’s home in Kanimbla, a suburb of Cairns.  The plaintiff’s personal injuries include fractures to his right forearm and an associated adjustment disorder with depressed and anxious mood.  Liability and quantum are in issue. 
2. [2]
   The dirt bike was unregistered, and a compulsory third party insurance policy was not in force in respect of it.  As a result, the Nominal Defendant is named as the second defendant to the plaintiff’s claim pursuant to s 31(c) of the Motor Accident Insurance Act 1994 (Qld).
3. [3]
   The circumstances in which the plaintiff met with the first defendant’s dirt bike on the grassed verge are contested.  Liability turns on whether, as the plaintiff contends, he was injured when the dirt bike collided with him whilst he was standing stationary on the grassed verge, or whether as contended by the second defendant, the plaintiff was injured because he deliberately extended his arm into the path of the dirt bike as the first defendant attempted to ride past him.

The scene

4. [4]
   The site of the incident is close to the plaintiff’s then residence situated at 10 De Roma Close, Kanimbla.  That house forms part of a group of five low set houses backing onto Ramsey Drive which are separated from the road by a high wooden fence running along the back boundary of the properties.
5. [5]
   Those houses are situated on the south-western side of Ramsey Drive, which at this location is made up of two lanes separated by a grass median strip.  A concrete footpath runs along the south-western side of Ramsey Drive behind the houses.  On the north-eastern side of Ramsey Drive, across from the houses, is a grassed verge that forms part of the road reserve and is open to be used by the public as a footpath.  
6. [6]
   The grassed verge spans a significant length of the north-eastern side of Ramsey Drive.  In the region across from the houses on De Roma Close, the grassed verge is quite narrow.  The kerb side edge of the verge is lined by a row of seven or eight mature trees planted approximately 4 or 5 metres apart from each other.  On the grassed verge’s other edge, there is a steep drop down into a creek or culvert shrouded in dense foliage including bamboo.  This narrow area of grassed verge links, at both ends, to an area of public land commonly referred to as the Moody Creek Catchment area.  Up towards the northern end of Ramsey Drive, the grassed verge opens out into an area of grassland.  To the east of the creek or culvert is another area of open space, the site of an old quarry, which joins up with the area of grassland at the northern end of Ramsey Drive and can also be accessed from the grassed verge just to the south of the houses on De Roma Close.
7. [7]
   When contact was made between the plaintiff and the first defendant on his dirt bike, the plaintiff was standing on the grassed verge, directly across from a pedestrian pathway linking De Roma Close and Ramsey Drive.  He was facing in a generally northwards direction.  The road surface was to his left side and the steep drop down into the culvert was on his right-hand side.  The first defendant was riding along the grassed verge in a southerly direction and directly towards the plaintiff.  The road surface was on his right-hand side and the drop on his left-hand side. 

The competing versions

8. [8]
   The plaintiff’s version of the incident is pleaded in paragraph 4 of the Second Further Amended Statement of Claim.  It is alleged the first defendant was riding the dirt bike along the grassed verge at or about 4pm on 9 June 2017.  The dirt bike was emitting a loud noise which was disturbing the plaintiff and his family.  The plaintiff walked from his residence and stood on the grassed verge so that he could talk to the first defendant and tell him to stop riding the dirt bike in the area.  As the plaintiff was standing on the grassed verge so that he could speak with the first defendant, the first defendant “failed to avoid” the plaintiff and collided with him.  When the plaintiff realised that the dirt bike was about to collide with him, he put his right arm up and out instinctively in front of his body to protect himself from the imminent collision.  When the plaintiff did this, the first defendant’s head struck the middle of the plaintiff’s forearm.  As a result, he sustained mid shaft fractures to both his right radius and right ulna.
9. [9]
   The second defendant denies the first defendant failed to avoid a collision with the plaintiff.  The Second Further Amended Defence of the Second Defendant pleads at paragraph 3(d) that the first defendant drove the dirt bike so as to to safely pass the plaintiff.  When the plaintiff observed the dirt bike, he moved to position himself directly in its path.  The first defendant attempted to manoeuvre the dirt bike away from the plaintiff however in response to each such manoeuvre the plaintiff altered his position to place himself in the dirt bike’s path.  The plaintiff moved towards the dirt bike in a threatening and confrontational manner and as the first defendant altered the path of the dirt bike to pass by the plaintiff, the plaintiff intentionally raised or swung his arm out and struck the first defendant.  It was the plaintiff’s intentional use of a swinging right arm which caused the fractures to the plaintiff’s radius and ulna. 

The first defendant’s conviction for dangerous driving

10. [10]
    On 17 October 2018, the first defendant was convicted after trial in the District Court at Cairns of dangerous operation of a motor vehicle causing grievous bodily harm to the plaintiff. 
11. [11]
    The plaintiff relies upon the first defendant’s conviction in proof of his claim.  In accordance with s 79(3) of the Evidence Act 1977 (Qld), the first defendant’s conviction raises a presumption that he committed the acts which at law constitute that offence.  The section relevantly provides:

Section 79 Convictions as evidence in civil proceedings

…

(3) In any civil proceeding in which by virtue of this section a person is proved to have been convicted by a court of an offence the person shall, unless the contrary is proved, be taken to have committed the acts and to have possessed the state of mind (if any) which at law constitute that offence.

12. [12]
    The plaintiff pleads the following facts are proved by the first defendant’s conviction for the offence:

• The first defendant dangerously operated the dirt bike on the grassed verge of Ramsey Drive on 9 June 2017;
• The first defendant’s dangerous operation of the dirt bike caused grievous bodily harm to the plaintiff.

13. [13]
    It is common ground between the parties that in the application of s 79(3) of the Evidence Act to the circumstances of this case, the onus rests on the second defendant to prove, on the balance of probabilities, that the first defendant did not dangerously operate the dirt bike and/or that the first defendant’s dangerous operation did not cause the grievous bodily harm suffered by the plaintiff. 
14. [14]
    The second defendant contends the first defendant did not operate the dirt bike dangerously because he was not driving at excessive speed, kept a proper lookout and attempted to manoeuvre the dirt bike past the plaintiff whilst he was standing on the grassed verge, which was a reasonable action in the circumstances given the plaintiff’s aggressive behaviour in moving into the path of the dirt bike.  As to the plaintiff’s arm injury, the second defendant contends the cause was not the operation of the dirt bike by the first defendant but the plaintiff’s intentional use of his right arm to strike the first defendant as he attempted to ride past.

The plaintiff’s version at trial

15. [15]
    The plaintiff gave the following version of the incident in evidence in chief.  The plaintiff lived at 10 De Roma Close with his then partner and their infant daughter.  On the afternoon of 9 June 2017, he was at home with his daughter and his partner’s father.  His daughter was unwell, and he was trying to put her to bed.  He heard a motorbike start up adjacent to the rear of the house.  He was concerned about the noise disturbing his daughter’s sleep and walked out to the back patio where he could look over his back fence to the grassed verge on the other side of Ramsey Drive to his house.  He saw two, possibly three motorbikes, that seemed to be “doing the circuit they normally did” which he explained involved the bike riders continuing in an anti-clockwise loop that went over towards the Moody Creek Catchment before travelling south along the grassed verge on Ramsey Drive and then turning left, back into the bushland area and starting the circuit again.^[1] 
16. [16]
    The plaintiff considered there was an ongoing problem with dirt bikes riding on the grassed verge and in the vicinity of his house.  He said he had rung the Police Link telephone line a few times in the past when he had witnessed bike riders riding in the area but that his complaints had not been actioned in a timely way.
17. [17]
    On this occasion, after giving the bike riders “a couple of minutes, hoping that they would just take off and that would be the end of it” he realised that “they were sort of set up there and they were going to continue riding for a while”.  He decided to walk over to the grassed verge and “say something to them”.^[2]
18. [18]
    He walked out of his house and out onto De Roma Close before walking down the pedestrian pathway linking De Roma Close and Ramsey Drive.  He crossed over Ramsey Drive and stood in the middle of the grassed verge.  He estimated the grassed verge had an approximate width of 4m at this location.  He was standing in the indentations made by the motorbikes in the grass, halfway between the road on his left and the bamboo and steep drop to his right.
19. [19]
    As he stood looking northwards, he saw a motorbike come around the bend in the road up ahead of him.  It was travelling on the grassed verge.  When he first saw this motorbike, it was approximately 110m in front of him.  The motorbike slowed down to go around the bend, but as it passed the bend it increased in speed and travelled in a straight line towards him.  He could see the rider on the bike and could tell, from his own experience with motorbikes, that the bike was a “dirt bike” or “pit bike”.^[3]
20. [20]
    The rider turned his head to the right as if to merge onto the road but remained on the grassed verge.  There was traffic on the road, and he remembers there were cars travelling on the road in the same direction as the motorbike and that these cars were parallel to the motorbike and travelling at the same speed, which he estimated to be 60km/h.
21. [21]
    The rider straightened his head and continued towards the plaintiff, before veering slightly to the right when he was approximately 60m from the plaintiff.  Thereafter, the rider continued in a straight line towards the plaintiff.^[4]  The plaintiff remained stationary in the same position as when he had first seen the motorbike.  He explained that as the motorbike approached, he “realised that this guy wasn’t going to stop the bike, I sort of froze.  I sort of stood my ground not knowing if he was going to veer left or veer right.  I didn’t want him to veer this way and then I jump that way to get away from him.  I didn’t want him to veer that way and I jump that way in front of him.  I was aware there was – how close the road was to me and that there was cars on that road.  I didn’t want to jump into the path of a moving car and get hit by a car, and I didn’t want to jump down the creek and fall down a four-metre embankment.”^[5]
22. [22]
    He explained that the whole thing happened within 7 or 8 seconds from the time he first saw the motorbike in front of him, and that, “From the time I saw him to the time of the incident I feel like I had one, maximum two, seconds when I went shit, this bike is going to go straight through me” and I had one second to react, like – it happened so quick.”^[6]
23. [23]
    He explained that when he had first seen the rider, he put both of his arms directly out in front of his body with his palms facing outwards signalling the rider should stop, but when he realised a collision was imminent, he instinctively put his arms up to protect himself, which involved putting both of his forearms out in front of his body, with his right forearm across his face and his left forearm across his torso or waist.  He said that he was worried about his face and upper body coming into contact with the motorbike.
24. [24]
    The positioning of the plaintiff’s arms was demonstrated by the plaintiff in the witness box and recorded in two photographs taken during his evidence and collectively marked Ex 23.  Photograph 1 of Exhibit 23 records the plaintiff’s arm position as described by him when signalling for the rider to stop.  Photograph 2 records the plaintiff’s arm position at the time of impact.^[7]
25. [25]
    After assuming this position with both of his forearms, one across and in front of his head and the other across his body, he said “There’s a couple of seconds there where I don’t – I don’t remember my arms snapping back when his face hit my arm.  I whether I lost my memory or blacked out because of the – the pain of my arm snapping, I’m unsure, but my first recollection of going from, “He’s going to hit me”, my next, sort of, memory is running over to him and the bike on the ground.”^[8]
26. [26]
    After the impact, he had concerns for the welfare of the bike rider who he noticed was on the ground behind him.  The rider was 5 or 10 metres from him and was motionless with the bike on top of him.  He ran over to pull the bike off the rider and check on him.  He thought he was dead.  When bending down to pull the bike from the rider, the plaintiff realised he had injured his right arm.  He was unable to lift his arm up and noticed that it was bent at the forearm and hanging downwards from his elbow.^[9]  As he attended to the rider, he heard a female voice screaming at him saying “Get off him, get off him. You’ve killed him. Get off him.”^[10]  The plaintiff had not noticed her before this and only came to the realisation that the female was the rider’s pillion passenger on the bike, as she screamed at him.
27. [27]
    He was concerned for his safety, particularly that other riders in the same group could turn up and confront him in circumstances where, because of his arm, he was in no physical state to defend himself from an attack or retaliation.  He decided to walk back to his house via the pedestrian lane way joining Ramsey Drive and De Roma Close.  On the way home he called triple zero.  The recording of that call was tendered in evidence as Exhibit 22. 
28. [28]
    The plaintiff explained his intention in walking over to the grassed verge was to “tell him to – to piss off and stop riding in the verge grass section…go back up to the basin, is a lot safer there – um- or either go back down Ramsey Drive, where there’s another big cleared section.  Um – I didn’t want the noise going past my house and there’s a narrow footpath where – where I thought it was a safety issue, so my suggestion was just go up the other end and keep driving up there, stop bothering people.”^[11]  He denied that he ever had an intention to cause any harm or injury to the bike rider.  He said that he had many implements such as rakes, shovels, baseball and cricket bats and spears that were stored in his garage and which he very easily could have taken with him to the grassed verge if he had wanted to hurt someone.
29. [29]
    The plaintiff was asked in his evidence in chief whether he had ever used the terms “clothesline” or “coat hanger” to describe how the incident had occurred.  He said he had “on and off”.^[12]  He explained that a “clothesline” or “coat hanger” was an “AFL football terminology”.^[13]  He said that he had played over 600 games of AFL and that in football terminology “a clothesline is when any part of your arm makes contact with someone else’s head, causing them to be slung back as if they have run into a clothesline.”^[14] 
30. [30]
    The plaintiff said that when he had previously used the term “clothesline” or “coat hanger” to explain his actions in the incident, he meant his forearm was raised across his body at shoulder height.  He asserted this was “a protective clothesline” used “when you’ve got the ball in one arm and you’re getting tackled, you only have one arm to defend yourself…ball tucked under your arm and you put your other arm like this when someone is barrelling into you”.  He asserted he had employed this “protective clothesline” in the incident and that “it was instinct to protect myself.”^[15]

The plaintiff’s earlier version

31. [31]
    The plaintiff gave evidence at the first defendant’s criminal trial as a witness for the prosecution.  A transcript of his evidence was tendered as Exhibit 35.  At that trial, the plaintiff did not assert he had a positive memory of placing his forearms out in front of his body by way of a “protective clothesline” to instinctively protect himself from impact with the motorbike. 
32. [32]
    He told the jury in that trial that after he saw the motorbike turn the corner and travel towards him, he put his hands up in front of his body with his palms outstretched signalling for the rider to stop.  He was asked what happened next and his evidence continued:

“I stood there, waiting for him to stop, I realised he wasn’t going to stop and that’s -that’s basically, the last thing I remember.  I don’t really remember the impact.  I don’t remember getting hit by the bike.  I remember, after the impact, running over to him because he was stationary on the ground with what – from what I can remember, the bike was either on top of him or very close to him and I could hear him making a moaning noise.  So I ran over to try and help him.

Mr Kruger, do you recall, in the seconds before the impact, whether the bike was being ridden in a straight line or which way---?---Yeah, the---

---it was being ridden?-----bike didn’t veer off at all.  He never changed directions.  He didn’t attempt to slow down.  He didn’t try to turn around and go back in the other direction.  He just continued speeding up.

So he continued accelerating?---That’s correct. Yeah.

And you said the bike then collided with you---?--- Yes.

---and that you don’t recall.  But are you able to say whether you had moved positions at the point of impact or what you were doing with your body?---Oh.  Look, I can only guess.  I I’ve – I’ve spoken to a psychiatrist about this who – who said it’s pretty normal behaviour---

If I could just – Mr Kruger, if I could just ask you to recount things that you do remember?---Okay. Yeah.

If you can’t recall that, that’s okay?---Yeah.  Look, I – I can’t remember the impact I can only presume that I’ve – I’ve braced myself and prepared myself for impact. So---

But, certainly, the last thing that you remember certainly was the position of holding your hands up?--- Yeah.

Is that correct? ---Yes.”^[16]

33. [33]
    As this passage makes clear, the plaintiff claimed to have no memory of the impact and no memory of putting his arms out in front of his body immediately prior to impact.  The plaintiff was taken to this passage of his evidence in the criminal trial when cross-examined by the second defendant’s counsel.  It was put to the plaintiff that he had never suggested at the criminal trial that he had his arms in a position anything like what is shown in Exhibit 23, photograph 2 (“the protective clothesline position”).  The plaintiff’s response to that suggestion was that he did not believe he was ever asked any questions about that issue.^[17]  Such response was an obviously unsatisfactory answer to the question given that the above questioning at the criminal trial was clearly directed to whether the plaintiff could recall what he was doing with his body at the point of impact. 

What the plaintiff has told others about the incident

What the plaintiff told his partner

34. [34]
    Ms Hammacott was in a de facto relationship with the plaintiff at the time of the incident on 9 June 2017.  Their relationship lasted about 5 years between May 2014 and April 2019.  They now share custody of the child they have together.
35. [35]
    The plaintiff told her that he deliberately “clotheslined” the rider by putting his right arm out to the side.
36. [36]
    In her evidence she described a telephone call she had with the plaintiff on the night of the incident where he explained what had happened.  He told her he had been in an incident and had “clotheslined” a motorcycle rider on Ramsey Drive that had been “lapping” whilst he was suffering from a migraine.  She said that she was extremely annoyed by what the plaintiff told her.
37. [37]
    The plaintiff was at hospital, but she did not attend on him that afternoon or evening.  Instead, a series of text messages were exchanged between them as follows (Exhibit 28):

At 8:10pm that night she sent the plaintiff the following text message:

“Sorry if you think I don’t care, I do, would never wish pain on you.”

The plaintiff replied:

“I know you care it’s okay…totally understand why you’re a bit pissed off.  Dumb thing to do, it wasn’t my intention to hit/hurt him.  I didn’t want you here when they put my arm back into place that’s all babe.  Love you.

Ms Hammacott then responded:

“Yes dumb thing to do.  If you didn’t mean to hurt him, what did you think was going to happen to him from a coat hanger exactly?”

The plaintiff replied:

“I didn’t expect him to ride a bike at me at 60kms an hour..split second decision/instinct.”

38. [38]
    In her evidence, Ms Hammacott explained the use of the term “coat hanger” in her text message was a reference to what the plaintiff had told her earlier over the phone.
39. [39]
    The next morning, on 10 June 2017, Ms Hammacott attended the hospital to visit with the plaintiff.  At the hospital the plaintiff demonstrated the clothesline action he had described to her on the phone the night before.  He also told her he had hidden behind a tree and jumped out and knocked the motorcycle rider off the bike. 
40. [40]
    A short time after the plaintiff’s discharge from hospital, Ms Hammacott recalls she went for a walk with the plaintiff and their daughter in the area of Ramsey Drive where the incident took place.  When there, the plaintiff conducted a re-enactment of what occurred in which he showed her the tree he hid behind, the direction the riders were coming down, and as well, his action in jumping out and making the clothesline motion.  The plaintiff demonstrated the clothesline motion to her by swinging his arm forcefully at shoulder height out to his side with his fist clenched.
41. [41]
    In cross-examination the plaintiff conceded he had “possibly” used the words “clotheslined” and “coat hangered” to describe his actions to Ms Hammacott but denied his use of those terms was a reference to him using a swinging arm to make contact with the first defendant.  He denied that he had ever demonstrated a swinging arm to Ms Hammacott or that he had ever said that he had hidden behind a tree and jumped out at the motorbike.

What the plaintiff told health professionals at the Cairns Mental Health Service

42. [42]
    In February and March of 2019, the plaintiff attended upon the Cairns Adult Mental Health Service on a number of occasions.  Notes made by three different clinicians during the plaintiff’s attendances record statements made by the plaintiff concerning his actions in the incident. His statements to these practitioners are consistent with the plaintiff using a deliberate swinging arm action to knock the first defendant from the motor bike.
43. [43]
    The plaintiff was seen by psychiatrist, Dr Vigo Van Meer, on 12 March 2019.  His clinical notes from part of Exhibit 46 but were also received as a separate exhibit – Exhibit 39.  Dr Van Meer explained his practice was to make handwritten notes with a pencil during a consultation with a patient which he would then type up after the consultation was completed.  His evidence was that whilst some of what is contained in his final typed notes may be copied and pasted from earlier assessments and reports, in respect of the notes documenting his assessment of the plaintiff, those contained under the heading “On review” are notes that he was able to say definitively he made himself.  Under that heading his notes relevantly include the following entry:

“he tells me he has instances in which he, mostly in traffic, let an accident happen because the other car or bike made a mistake.  This is the way he got his right arm broken.  He feels the impulse to do such things (a kind of road rage) and want to have help with it”

44. [44]
    In his evidence, Dr Van Meer confirmed this was an entry actually made by him and not something he had copied and pasted from elsewhere, noting that the entry reflected “his way of writing.”  The plaintiff was taken to this entry in cross-examination by the second defendant’s counsel.  He accepted he told Dr Van Meer that he had “instances in which he, mostly in traffic let an accident happen because the other car or bike made a mistake” but denied that he said what is then recorded, “this was the way he got his right arm broken, he feels the impulse to do such things (a kind of road rage).”  He denied saying anything like this to Dr Van Meer.
45. [45]
    The two other clinicians, social worker, Jannemieke Hanhart, and registered nurse, Thomas Braun, were not called as witnesses, however, their clinical notes were tendered as part of Exhibit 46. 
46. [46]
    The plaintiff was seen by Ms Hanhart on 20 February 2019.  Her clinical notes record the following account from the plaintiff about the incident:

“Significant incident - Precipitating

18 months ago Scott was part of an incident in which he got into an altercation with someone there had been men riding their dirt bikes on the pathways in front of his house, up and down

This was dangerous for the children living in the Street

Police had been called, and no change

Scott had been so fed up that at one point he had confronted one of the bike riders, had stood squarely in front of the upcoming bike.  The rider had continued driving straight at him at 60km p/h.  When he had realised that the driver would run him down, he had stepped away and given the driver a wack on his head. [had put out his arm while the driver had driven past]

His arm had been broken length wise, had snapped back in a right angle. Requiring surgery.”

47. [47]
    In cross-examination the plaintiff accepted, consistent with what is recorded, that he told Ms Hanhart:

• 18 months ago, he was part of an incident in which he got into an altercation with someone;
• There had been men riding their dirt bikes on the pathways in front of his house, up and down;
• That this was dangerous for the children living in the street;
• That Police had been called and there had been no change;
• That he had stood squarely in front of the upcoming bike; and
• That the rider had continued driving straight at him at 60km per hour.

48. [48]
    However, he did not accept he told Ms Hanhart:

• That he had been so fed up that at one point he had confronted one of the bike riders;
• That when he had realised that the driver would run him down, he had stepped away and given the driver a wack on his head; or
• That he had put out his arm while the driver had driven past.

49. [49]
    Mr Braun conducted a mental health assessment of the plaintiff on 1 March 2019.  That assessment involved the taking of the plaintiff’s “history of presenting problems”.  When cross-examined about the details of that history, the plaintiff largely accepted he had reported matters to Mr Braun consistent with what the notes recorded.  Mr Braun’s clinical notes also provide the following information under the same heading “Significant Incident-Precipitating” as appears in the clinical notes of Ms Hanhart:

“Significant incident - Precipitating

18 months ago Scott was part of an incident in which he got into an altercation with someone” there had been men riding their dirt bikes on the pathways in front of his house, up and down

This was dangerous for the children living in the Street

Police had been called, and no change occurred.

Scott had been so fed up that at one point he had confronted one of the bike riders, had stood squarely in front of the upcoming bike.  The rider had continued driving straight at him at 60km p/h.  When he had realised that the driver would run him down, he had stepped away and clotheslined the rider.  This broke his arm and snapped it in a right angle, requiring surgery.”

50. [50]
    As is plain, Mr Braun’s notes about the incident are an almost carbon copy of those made by Ms Hanhart.  It is an obvious inference that the content of his notes on this issue have been copied and pasted over from Ms Hanhart’s earlier notes concerning the same topic.  There is one notable difference.  His notes record a different description of the plaintiff’s action in striking the motorcycle rider.  Mr Braun’s notes record that the plaintiff “clotheslined” the rider rather than giving the rider “a wack on his head.” 
51. [51]
    In cross-examination, the plaintiff accepted the suggestion that the phrase “clotheslined” appearing in Mr Braun’s notes and not in Ms Hanhart’s, indicated he did tell Mr Braun what is recorded, namely that, “when he had realised that the driver would run him down, he had stepped away and clotheslined the rider.”  However, the plaintiff nonetheless maintained that what he told Mr Braun about the incident was consistent with his evidence in chief – that he had stood his ground and had his arm out in front of him at the time of impact.  His cross-examination on this topic included the following:

Now, to be fair to you, Mr Kruger, a lot of what is in Mr Braun’s report matches what was in Ms Hanhart’s record, but it’s slightly different.  He says when he realised – Mr Braun records, “When he” – that’s you – “had realised that the driver would run him down, he had stepped away and clotheslined the rider.”  Now, the phrase “clotheslined” does not appear in Ms Hanhart’s version.  So I’m suggesting that’s what you told Mr Braun? ---Yeah.

You didn’t seriously mean having your arm in front of you, did you?---It’s exactly what I meant.

How would stepping away with your arm in front of you cause the rider to be knocked down? How would that happen, Mr Kruger?---Because his head slammed into my arm.  Stepping away could mean backwards, like ---

Well, what do yo ---?---I don’t- I don’t ---

---say it meant?---I don’t---

Do you ---?--- I don’t think I stepped away.  I’ve always said I stood – I didn’t know where to stand, so I stood my ground.

Yeah.  Well, I’m suggesting that the truth is that you stepped away and swung your arm in the fashion I’ve been demonstrating at the rider, didn’t you? ---No.^[18]

What the plaintiff told Ms Clarke, psychologist

52. [52]
    The plaintiff attended 21 counselling sessions with Ms Tracey Clarke, a psychologist in private practice, between 7 July 2017 and 28 May 2018.  The plaintiff told her only that he believed he put his arm up protectively, not that he had an actual memory of doing so.
53. [53]
    Ms Clarke’s type written case notes of the plaintiff’s first counselling session on 7 July 2017 record that the plaintiff was referred to her for counselling by his General Practitioner because he had not been coping since incurring his arm injury on 9 June 2017 which involved a “m/bike rider who purposely ran into him.”  As to the specifics of the incident, the case note of the session relevantly provides:

Lives in Kanimbla – no rear neighbour – bushlands – Spoke about long term frustration regarding m/bikes that endlessly do laps at the back of his own house – noise always excessive – inefficient mufflers – everyone in neighbourhood been fed up for ages – have contacted police but nothing ever done to stop them and problem persisted.

…

8/6/17 daught 12 mths – very sick – neither slept – ang, wife, busy with relatively new business -  scott stayed home to take care of daught – she was still v. unwell – finally got her to stop grizzling and crying – she went to sleep – then woke up screaming when m/bike revved passed his house.  Frustrated – went to ask to stop – rider ran straight into him on footpath – put forearm up to shield self instinctively – knocked down – saw in distance rider with bike on top – panicked as thought he might have been dead - ran over – tried to get bike off him – as doing – young girl unknown acc rider assaulted him – couldn’t defend h/self with arm.”^[19]

54. [54]
    Although Ms Clarke was not challenged in cross-examination about the accuracy of her typed case notes, an issue arises about the reliability of the entry “put forearm up to shield self instinctively” as recorded in the type-written version of the 7 July 2017 case note. 

55. [55]
    In examination in chief, the plaintiff’s counsel asked Ms Clarke about how her case notes were produced:

Do you have with you your file about Mr Kruger? ---Yes, I do.

Yep. Now, when you saw Mr Kruger during those counselling sessions, did you make case notes?---Yes, I do.

All right.  Now, when you have a counselling session with Mr Kruger, how do you take those notes?---I take initial – uh- rough notes while they’re talking to me with my pen, and then, later – um – I’ll – I’ll add some etcetera.  But because these were – are required by – somebody requested them, I think – I would’ve typed them out because people can’t understand my writing.

All right.  So where you have, for example, in your case notes, “Session 1, 7 July 2017”, you’re saying what you did is made notes at the time of your consultation with Mr Kruger, and then, sometime later, did you type them up? ---Yeah, it would’ve been  - uh – when they were requested.  I -um – can’t take my eyes off people when I’m counselling them because  - um – it’s disconcerting to the client.  So I write while I’m watching them, and although I’ve managed to perfect it over the years, it’s still extremely messy.

Right.  So-but when you typed the notes up because they were requested by lawyers for court purposes, how did you do that?---Mm-hmm.  I went off the case notes.

All right?---My recent ones.

All right.  So are you confident that the typed copies we have are accurate case notes of your discussions with Mr Kruger?---Yes, they are.  Yes they are.”^[20]

56. [56]
    The typed case notes prepared by Ms Clarke form part of Exhibit 15.  Her more contemporaneous hand-written notes, however, are not in evidence. 
57. [57]
    Exhibit 15 also includes two reports prepared by Ms Clarke which also set out what the plaintiff told her about the incident.  In both of those reports (the first dated 20 November 2017 and the second dated 15 July 2018), Ms Clarke does not say the plaintiff positively asserted to her that he put his forearm up to shield himself instinctively, but merely that he believed he had put his arms up to protect himself.  And, that he only believed that to be the case because he did not recall the actual impact between himself and the motorcycle.  Both reports express this aspect of the plaintiff’s account using the same words:

“Scott does not recall the impact as he was in shock, however he believes that he put his arms up to protect himself.”

58. [58]
    In examination in chief, Ms Clarke confirmed both reports were accurate and prepared in accordance with her case notes.  The typed case notes show the only occasion on which the details of the incident were discussed with the plaintiff was in the first session on 7 July 2017.  Given this context, it is likely the type-written case note of the plaintiff’s first session is not an accurate reflection of Ms Clarke’s more contemporaneous hand-written note of what the plaintiff said.  In my view, the reports provide a more reliable record of what the plaintiff told Ms Clarke on this occasion.  It would make no sense for her reports to have included this extra detail about the plaintiff having no recollection of the impact and merely believing that he put his arms up if she was not told this by the plaintiff.  I find that what the plaintiff told Ms Clarke about his action with his arm was something that he believed he did but in fact had no actual memory of doing.

What the plaintiff told Dr Foxcroft, psychiatrist

59. [59]
    At the request of his solicitors, the plaintiff was seen and assessed by Dr Malcolm Foxcroft, a consultant psychiatrist.  What the plaintiff told Dr Foxcroft is inconsistent with the plaintiff’s account of the incident as given in evidence in chief.  The version he gave on this occasion made no reference to him making any action with his arms prior to the collision and further asserts that the impact caused him to be knocked to the ground. Dr Foxcroft’s report of 17 April 2018 records that the plaintiff provided the following description of incident to him:

“Mr Kruger stated that on the 9th of June 217 he was at his home in Kanimbla.  There had been some trouble with youths riding motorbikes in the local area.  There had been a motorbike come past and he had gone out onto the road to investigate and to attempt to stop the motorbike riders if possible.  There had been a group of unregistered riders riding unregistered bikes on the footpath in the road nearby.  Mr Kruger said he went down to the footpath and saw a motorbike approximately 100 metres away.  He said that the bike rider then looked at him and accelerated directly towards him.  Mr Kruger said he expected the bike rider would then move away and go onto the road but not hit him.  However, the bike rider continued to ride directly towards him.

Mr Kruger estimates that he was riding at 60 to 80km an hour and indeed the bike rider then struck him, knocking Mr Kruger flying.  He could not believe that the bike rider had deliberately done this.  He picked himself off the ground and saw that the bike rider was struggling to breathe as the bike was on top of him. He walked over to try and move the bike from the rider but found that his right arm was dangling and useless.  He said at the same point his right forearm was almost at right angles and he could not do anything for the bike rider who was struggling to breathe under the bike.  He said he then realised that he needed assistance, called the police and took himself to hospital.”

60. [60]
    In cross-examination, the plaintiff specifically disavowed that he was knocked over in the incident. He was asked:

“Mr Kruger, you – so yesterday, when the case was opened, Mr Houston told his Honour that you were not knocked over and not knocked out.  That was the – that was the truth wasn’t it? ---Yeah, I don’t believe I was knocked over and I definitely wasn’t knocked out.

You certainly weren’t knocked flying, were you? ---No.”^[21]

61. [61]
    In further cross examination, he accepted he told Dr Foxcroft that the motorbike rider was riding at 60 to 80 km an hour but did not recall saying that the bike rider struck him knocking him flying, although he admitted that it was possible he had said that.  When pressed to admit that if he did say those words to Dr Foxcroft that it was a “patently false” statement, the plaintiff replied that he was “unsure of exactly what happened after my arm was broken, where my body ended up or anything.”

The first defendant’s version

62. [62]
    The first defendant’s version of the incident is consistent with Ms Hammcott’s evidence about what she was told about the incident by the plaintiff: the plaintiff used a swinging arm to knock the first defendant from the motorbike. 
63. [63]
    The first defendant was 24 years of age, living in Cairns and in a relationship with Cassandra Hopper at the time of the incident.
64. [64]
    He had extensive experience with motorbikes growing up.  Two or three days prior to the incident he had purchased a small dirt bike, an unregistered 110cc Orion motorcycle, intending to teach Ms Hopper how to ride it.  He was hoping that she would be able use the bike to go riding with him on his step-father’s farm on the Atherton Tablelands.  Only two of the four gears were working and before using it, he had taken it to be serviced but was told it was going to cost him too much to fix the gears, so he decided to leave the gears as they were.
65. [65]
    On the day of the incident, he loaded the bike into the back of Ms Hopper’s car and the two of them drove to the Moody Creek Catchment area.  They parked the car and unloaded the bike on the grassed verge on Ramsey Drive just down from the pedestrian pathway between De Roma Close and Ramsey Drive.
66. [66]
    After unloading the bike, he started it up and explained a few things about the bike to Ms Hopper.  He then got on the bike and took it for a lap, driving up behind the culvert area and around and back near the quarry area before coming back down onto the grassed verge on Ramsey Drive and to the car. 
67. [67]
    Upon completion of this lap Ms Hopper got on the bike as a pillion passenger.  He took the bike in the same direction as his first lap.
68. [68]
    As he rode back down along the grassed verge from the northern end of Ramsey Drive, he turned around a left-hand corner.  He saw a man standing behind a tree next to the road.  He slowed the bike down and changed into first gear.  The man gave him no indication or signal to stop.  As the first defendant slowed down, the man started stepping towards the motorcycle.   The first defendant attempted to veer away from the man, but the man stepped out from the tree and in front of his path of travel. He went to veer out of the man’s path again, but the man kept standing in his way.  He was travelling slowly at this point, about 20kh/h, but did not want to stop because he was scared of the man’s intentions.  The man was frowning at him, and he was concerned for the safety of his girlfriend.  The man kept coming towards him and stepping into his path of travel.  The first defendant attempted to veer the bike to the left to go around the man, but as he did so he remembers seeing “an arm figure coming up and that was it.”^[22]  He was “not sure whereabouts it hit me, but I looked away at the time , and there was an arm.”^[23]  He later clarified that at this moment he saw a forearm across his face.  He remembers losing consciousness after this and not regaining consciousness until a later time when he was at home before being taken to the hospital.
69. [69]
    In cross-examination, he explained he was not riding the bike on the road because it was an unregistered pit bike or dirt bike.  He said when he first saw the man, he thought about stopping but decided not to because “he didn’t look too friendly.”^[24]  His evidence was that he was “scared of my life…and for my partner on the back.  He was looking very aggressive, coming towards us on a moving vehicle which I had no safety on.”^[25]  He said that the man kept stepping toward the motorbike and that “every path that I chose to go, he would step in front of it.”^[26]  He explained that he slowed down and “put it back into first gear to almost stopping position and then I got scared for my safety, so I tried to get my motorbike towards the car and get Cassandra off the motorbike so I could talk to the person…to find out what his problem was.”^[27]  He said that “He kept standing in front of me and I tried to do everything I could to avoid him and he kept stepping towards my path to the point where I would turn as much left as he (sic) could and he would step as much right as he could, directly in front of my path.”^[28]  The first defendant rejected the suggestion that he rode straight towards the plaintiff from the time that he first saw him up to the point of impact.^[29]  He said that he did not ride towards the man but rather tried to “veer as much – as far away as [he] could – of the person to give him space and myself space on the motorbike.”^[30]  Whilst he ultimately could not remember if he veered left or right immediately before impact he was adamant that he was trying to avoid the man at all costs.
70. [70]
    The first defendant rejected the proposition that the plaintiff was holding his hands out signalling for him to stop as he rode towards him as depicted in photograph 1 of Exhibit 23.  He also rejected the suggestion that at the point of impact, the plaintiff put his arms up in front of his body as described by the plaintiff in evidence and depicted in photograph 2 of Exhibit 23, stating that at the time of impact “there was an arm in front of my head.”^[31]

Ms Hopper’s version

71. [71]
    Ms Hopper was the first defendant’s pillion passenger.  Her evidence was broadly consistent with the first defendant’s account of the incident.
72. [72]
    Ms Hopper was 24 years of age and in a relationship with the first defendant that had been ongoing for about two or three years at the time of the incident.  Their relationship ended about 18 months before the commencement of the trial.
73. [73]
    She remembers the first defendant had acquired a small motorbike a couple of weeks prior to 9 June 2017.  The bike was purchased by the first defendant for her so she could learn to ride, and they could go camping together.
74. [74]
    On the day of the incident, they took the motorbike down to the quarry area near Ramsey Drive using her car.  Upon arriving at that location, the first defendant took the bike for a lap around the trees and open grass area and back to her car.  When he came back to the car, she got on the back of the bike, and they started off on another lap.  As they turned down Ramsey Drive, returning to the car, she saw a man jump out from behind some bushes.  He was standing in line with the bike as it travelled down the grassed verge.  She remembers the first defendant attempted to swerve right but the man stepped in line with the bike.  They then swerved to the left and the man took a step to the right so that he was back in line with the bike.  It appeared to her that “wherever we were going to go, he was going to make sure he was in front of the path.”^[32]
75. [75]
    She was frightened by the man.  He had his chest puffed out and walked towards them “with a lot of body anger”.^[33]  As they approached the man, she said the first defendant went to go to the right and the man put his right hand up in the air in line with their heads.^[34]  As at the time of the trial, seven years after the event, she did not remember the man’s arm hitting the first defendant but did remember the first defendant’s head hit her head and she was knocked unconscious.  She regained consciousness on the ground. When she regained consciousness, she observed that the first defendant was unconscious on the ground and his leg was caught in the fork of the bike. The man was standing over her and the first defendant and was swearing at them.  She went to stand up, but the man pushed her back down.  She asked the man “what have you done?” or “why did you do that?” and he replied with words to the effect of “You had it coming” or ‘You deserved it”.  The man then dragged the bike along the ground with the first defendant still entangled in it.  She yelled at the man telling him “Stop. Stop. You’ve done enough.”^[35]  She then sat on the first defendant so that the man would stop dragging him, and the man ran away.  She attended to the first defendant who was still unconscious on the ground.  Two boys about 16 years of age came up on a dirt bike and asked if they were okay.  By this time, the first defendant was awake.  She got the first defendant to her car, and they drove back to his house before then going to the hospital. 
76. [76]
    In cross-examination, Ms Hopper accepted that in her police statement taken on 11 July 2017 (Exhibit 36) she had said the motorbike was travelling at 60kh/h when she was on the back of it but explained she had given that estimate of speed based on her assessment that they were travelling at the same speed as the cars on the road and on the assumption that those cars were travelling at the speed limit of 60km/h, which she thought was the speed limit that applied.  She disagreed, however, with the suggestion that the first defendant did not slow down as they approached the man, stating “I believe he [the first defendant] did slow down, and it appeared that maybe we were going to stop, and then the rage of the man was scary, and I was too scared to jump off, and …I thought that he would move away.”^[36]  She said that the plaintiff’s “body language was enraged.  His face looked enraged.  I was scared, and he was coming towards us, and he wouldn’t move out of the line of the bike.  He made sure he was in line with the bike the whole time he was in sight of us.”^[37]  She did not accept the plaintiff had put his palms out in front of him indicating that he wanted them to stop prior to the collision.
77. [77]
    Ms Hopper did accept that she gave the following account of the circumstances in which contact was made with the plaintiff in her police statement: “As we got closer to him, the man king hit Daniel in the forehead and we both fell off the bike.  By king hit I mean the man took a swing at Daniel with his fist, his fist collided with Daniel’s forehead”.  She was asked at trial what she meant by the use of the term “swing” in her statement and responded “I remember his arm going up and it appeared to go back before it came forward, so it appeared that it was a punch, not trying to protect himself.  It was against us.”^[38]  She did not agree with the suggestion that at the point of impact the plaintiff put his arms up in front of his body as described by the plaintiff in evidence and depicted in photograph 2 of Exhibit 23.
78. [78]
    Ms Hopper was also cross-examined in relation to evidence she gave at the first defendant’s criminal trial.  A transcript of her evidence was tendered as Exhibit 37.  At the criminal trial, Ms Hopper described the plaintiff’s actions immediately prior to contact with the first defendant on the motorbike in a manner broadly consistent with her evidence in this trial as follows: 

“So we went forward more.  He did not move out of the way.  He stepped in line with the bike again as we tried to go back right, away from the bushes and he punched Daniel in the forehead, around here somewhere.  He was knocked out instantly.  His head hit my head and I was knocked out.  We both fell to the ground and I thought he was dead.”^[39]

The plaintiff’s version cannot be accepted

79. [79]
    The plaintiff’s counsel submits the plaintiff’s evidence about how the incident occurred and how he was injured when he was struck by the dirt bike should be accepted as truthful and reliable evidence.  I do not accept that submission.  For the reasons set out below, I cannot place weight on the plaintiff’s account.
80. [80]
    The plaintiff’s evidence that he assumed a defensive position in front of the bike as it drove directly at him is flatly contradicted by what he told his de facto partner in the immediate aftermath of the incident.  This earlier version is very damaging to the plaintiff’s credit.  It is plain he admitted to acting in an aggressive way, placing himself in the path of the dirt bike and deliberately knocking the rider off the bike, conduct which cannot be reconciled in any sensible way with the version of events he gave at trial.
81. [81]
    The account the plaintiff gave in evidence is also fundamentally different to the version he gave at the first defendant’s criminal trial in a crucial respect.  Absent from the plaintiff’s account at the first defendant’s trial is any reference to the “protective clothesline” which he says he deployed immediately before the dirt bike collided with him.  Description of this action is missing from the earlier version because the plaintiff claimed at that time to have no clear recollection of what occurred immediately prior to the collision and could only “presume” that he braced himself for the impact.  Whilst it is true that his claim to a belief that he did something to protect himself from the impact at the earlier trial is somewhat consistent with what he told Ms Clarke on 17 July 2017, just over a month after the incident, that he did not recall the impact but believes he put his arms up to protect himself,^[40]  it cannot be reconciled with the positive and detailed memory the plaintiff laid claim to in this trial.  In cross-examination, the plaintiff asserted that his “evidence has always been the same since day one” that his arms were in the position he described and as shown in Exhibit 23, photograph 2.^[41]  That is clearly not the case.  This stark difference in versions of the incident given by the plaintiff is damaging to his credibility and suggests his claim to have put his arms up in front of his body is a reconstruction.
82. [82]
    Also damaging to his credit is his claim that the action he now says he took in putting his forearms up in front of his body could be described as a “clothesline” or “coat hanger.”  The plaintiff claimed that those terms could describe an action whereby a bent forearm is placed out to the front of a player’s body, relying on his long experience playing Australian rules football.  But his use of those terms in that way is not consistent with the widely understood meaning given to them, which more commonly refer to a situation where contact is made with a player’s head or neck by a swinging arm outstretched to the side of the other player.^[42]  In cross-examination, the plaintiff accepted it was his belief that if he had coat hangered the rider by swinging his arm at him, that he would lose the case.  But a swinging arm coat hanger is exactly how he described what he did to Ms Hammacott.  That a swinging arm was deployed by him is also consistent with the clinical notes of Mr Braun, the Registered Nurse at the Cairns Mental Health Service, which record that the plaintiff “stepped away and clotheslined the rider”.^[43]
83. [83]
    Under cross-examination, the plaintiff was not prepared to accept that in ordinary parlance a coat hanger or clothesline would refer to a swinging arm directed at the neck or head.^[44]  Such a concession by him would have meant he had no way of reconciling what he told Ms Hammacott, Mr Braun and others about his actions with his evidence that he was not acting in an aggressive or confrontational fashion but in a defensive way and the first defendant rode straight into him as he was stationary on the grassed verge.  In my view, his claim that a clothesline or coat hanger referred to a self-protective action and not an aggressive one was a brazen attempt to tailor his evidence to account for his earlier use of these terms that were so clearly a problem for his case. 
84. [84]
    A further difficulty in the way of acceptance of the plaintiff’s account is that the evidence he gave for the first time at trial about his actions immediately prior to the collision is inconsistent with his case as pleaded.  The Plaintiff’s Further Amended Statement of Claim was filed by leave on 26 September 2024, less than three weeks prior to the first day of the trial on 14 October 2024.  That pleading alleged that when the plaintiff realised the motorbike was about to collide with him “he attempted to get out of the way and put his right arm up and out instinctively, to protect himself”^[45] ; and, “when the plaintiff put his arm up and out to protect himself, the first defendant’s head struck the middle of the plaintiff’s right forearm.”^[46]  
85. [85]
    This pleading is inconsistent with the plaintiff’s evidence that he deployed a “protective clothesline” just prior to the collision.  According to the plaintiff, that involved him standing in the direct path of the motorbike whilst both of his forearms were crossed over in front of his body, his right forearm protecting his face and head and his left protecting his torso or waist.  On his account, he made no attempt to get out of the way of the motorbike and his arms were deployed to the front of his body, not up and out from his body.   In seeming recognition of this problem, the plaintiff filed, with the court’s leave, a Second Further Amended Statement of Claim after the plaintiff’s evidence was completed.  That amended pleading materially altered paragraph 4(e).  It was amended to read “When the Plaintiff realized that the Orion motorcycle was about to collide with him, he attempted to get out of the way and put his right arm up and out instinctively in front of himself, to protect himself from the imminent collision.”
86. [86]
    The incompatibility of the plaintiff’s evidence with the case pleaded on the eve of trial is best illustrated by the plaintiff’s cross-examination where he disavowed that which was pleaded on his behalf:

“You would describe the movement I am making as taking my hand from my chest and putting it out so my arm is outstretched as “putting my arm out”, wouldn’t you? ---Yes.

It is true that when the – when you realised the motorcycle was about to collide with you, you attempted to get out of the way?---No.

Is it true that when you realised the motorbike was about to collide with you, you put your right arm up and out instinctively to protect yourself?---That seems like a dumb thing to do to me.

Yeah.  Unless you were going to coat hanger the rider, wouldn’t you?---Why would I want to coat hanger a ---

Mr Kruger, in your last version of your statement of claim in this case, your court document, prepared by your lawyers and settled by your barrister and filed a week – not a week ago, that’s the version that appears, “When the plaintiff realised the Orion motorcycle was about to collide with him, he attempted to get out of the way.”  You say that’s false, do you?---I – I didn’t get out of the way.  I had nowhere to go.

Well, do you – did you tell your lawyers that at any time, that you attempted to get out of the way?  Did you tell them that recently?---I had no reason to, because it didn’t happen.  I don’t know if we’ve mixed up the words or what, but I - I never tried to get out of the way.

And did you tell them recently you put your right arm up and out instinctively? –Up and out.  That’s up  [The plaintiff putting his forearm up and in front of his chest]

That’s not up and out?---What – what is – what – what---

That’s not up and out Mr Kruger, is it?---Your definition is different to mine.  Again, if you played AFL football, you would understand where I was coming from.

Yeah? --- Up and out, coat hanger.  That’s what this is.  [demonstrating with his right forearm in front of his chest]”^[47]

87. [87]
    The plaintiff’s denial that he made any attempt to get out of the way because he had nowhere to go is a contradiction of his pleaded case.  His explanation that this resulted because of some mix up with his lawyers was unconvincing.  As was his attempt to reconcile his earlier answer in the above passage, that putting his arm up and out “seemed like a dumb thing to do”, with his later insistence that his definition of “up and out” meant an “up and out, coat hanger”.  These later answers, relying on his own idiosyncratic definition of what a coat hanger is (i.e. a defensive action), sit ill with the plaintiff’s response to the suggestion that he was going to coat hanger the rider, “Why would I want to [do that].”  That response suggested acceptance that a coat hanger would be an aggressive action rather than a defensive one.
88. [88]
    Another problem with the plaintiff’s account is the implausibility of what he describes.  According to the plaintiff, the dirt bike collided with him as he stood stationary and directly front on to it.  It was travelling at a speed of 60 km/h at the time of impact and was conveying a rider and a pillion passenger.  And yet, the only injury occasioned to him was to his right arm.  The records from the plaintiff’s attendance at hospital after the incident show that he suffered no other injuries at all.  A dirt bike travelling at significant speed and colliding head on with a stationary person would, it might be expected, result in significant injuries to that person arising from contact with bike’s wheel, frame and handlebars, as well as from contact with those being conveyed on it.  The absence of any such injuries is more consistent, in my view, with the version of the incident advanced by the defendants.  On that version, the sole injury occasioned to the plaintiff resulted from the plaintiff swinging his arm into the path of the motorbike with the rest of his body remaining clear.
89. [89]
    On the plaintiff’s account, one might also expect injuries resulting from contact with the ground or road surface after being knocked over by the motorbike. Indeed, pursuant to the scenario he advanced in his evidence, it is inconceivable that he would not have been knocked to the ground from the impact, but nevertheless, his evidence was that he was not.  In cross-examination he specifically denied that he had been “knocked flying” by the motorbike even though he had used that very phrase to describe what had happened to Dr Foxcroft.
90. [90]
    That was not the only inconsistency between his version in evidence and what he told Dr Foxcroft.  He told Dr Foxcroft that the bike was possibly travelling at an even faster speed than 60 km and hour – up to 80km an hour.  What the plaintiff told Ms Clarke was also inconsistent with his evidence at trial.  Like his account to Dr Foxcroft, he told her that he was knocked down from the impact.  But as well, he said that he was physically assaulted by the rider’s pillion passenger, which is not a claim he made against Ms Hopper at trial.  Whilst these inconsistences in the accounts he gave to Ms Clarke and Dr Foxcroft are not particularly consequential when viewed in isolation, collectively they demonstrate the plaintiff’s ability to fashion his account of events to best suit his purposes. When speaking to these mental health practitioners it seems he was more than willing to exaggerate or distort certain aspects of his account.
91. [91]
    Another demonstration of his ability to fashion his evidence in a way he perceived would improve his case can be found in his response to the question whether he had told others that he had been involved in road rage.  The plaintiff insisted that “I have no - no rage.  Never been involved in road rage or in any sort of incident involving any sort of rage.”^[48]  That claim was not consistent with what is recorded in numerous places within the Cairns Mental Health Service records (exhibit 46), and specifically, what he told Dr Van Meer about the incident where he said, in effect, that his road rage impulses explained how he had broken his arm. 
92. [92]
    In summary, the plaintiff’s evidence about the key aspects of his version were not consistent with his earlier evidence at the criminal trial or with what he had told others about his actions.  It was also inconsistent with his pleaded case.  When cross-examined about the inconsistencies between his evidence at trial and what he had said about the incident on previous occasions, I generally found the plaintiff to be an unconvincing witness.  At times the plaintiff was evasive in his answers.  He also demonstrated an ability to distort and or tailor his evidence to best meet his purposes.  I do not accept his evidence about how the incident occurred. 

The other evidence provides a consistent and compelling narrative

93. [93]
    The plaintiff’s counsel submits Ms Hammacott’s evidence about the plaintiff admitting to jumping out from behind a tree and hitting the rider with a swinging arm should not be accepted because “she was motivated by spite because of the acrimonious Family Court proceedings between them about their daughter’s family arrangements.”^[49]  I reject this submission.  There is no evidence that the ongoing proceedings concerning the care of their child is “acrimonious”.  The child currently spends four nights a fortnight with the plaintiff in accordance with interim orders made by consent after a mediation was held last year.  Further, Ms Hammacott did not seek out the second defendant’s lawyers to speak with them about what the plaintiff had told her.  Instead, she simply responded to the second defendant’s approaches in this regard.  Such conduct by her does not evidence significant animosity or spite.
94. [94]
    The plaintiff’s counsel also points to an inconsistency between Ms Hammacott’s evidence at trial concerning the plaintiff’s injuries and limitations suffered after the incident and what she said in an earlier statutory declaration provided to his lawyers that was prepared when they were still together.  It is submitted this inconsistency is demonstration of Ms Hammacott’s acrimony.  I do not accept this submission.  Whilst her evidence about this may have become less favourable to the plaintiff then at the time she made her statement, in cross examination she conceded the truth of what she had said in that earlier statutory declaration. 
95. [95]
    The plaintiff’s counsel also submitted that Ms Hammacott’s evidence was unreliable because of the fact that she gave this statutory declaration to his lawyers which assisted his case on quantum.  It is argued that her conduct in doing so implied acceptance that the incident occurred in the way asserted by the plaintiff and was inconsistent with her evidence at trial.  I do not accept this submission either.  It is entirely understandable that Ms Hammacott would provide assistance to her then partner in this way at that time. 
96. [96]
    Further, even if it were the case that spite or animosity was part of her motivation in giving her evidence, that does not lead to the conclusion that her evidence must be false.  That is because her evidence finds support in the contemporaneous text messages she exchanged with the plaintiff; is aligned with the evidence given by the first defendant and Ms Hopper; and, is consistent with what the plaintiff told the three clinicians at the Cairns Mental Health Service.
97. [97]
    In the text messages between the plaintiff and Ms Hammacott, the plaintiff admits that his action in deploying a coat hanger was a dumb thing to do which he explains as a “split second decision/instinct.”  The irresistible conclusion arising from the text exchange is that Ms Hammacott’s account in evidence was a truthful account, notwithstanding the change in their relationship since the exchanges occurred. 
98. [98]
    As to the accounts given by the first defendant and Ms Hopper in evidence and the evidence of what the plaintiff told the clinicians, combined with Ms Hammacott’s evidence it provides a cohesive, consistent and compelling picture of what occurred which renders the plaintiff’s submissions about why her evidence ought be rejected unpersuasive.  I accept Ms Hammacott’s evidence. 
99. [99]
    Similarly, I am not persuaded that any cogent reason has been advanced which would require the rejection of the first defendant’s evidence or Ms Hopper’s evidence.  I accept that their accounts of what occurred are truthful and that they were both doing their best to give an accurate account of what occurred.  Whilst their versions are not perfectly aligned, for example Ms Hopper remembers the man jumping out from the bushes to the left whereas the first defendant though he stepped out from behind a tree to the right, they are broadly consistent.  On both of their accounts, the plaintiff appeared on the grassed verge in front of them.  Despite several attempts to alter the path of the dirt bike to avoid the plaintiff, the plaintiff continued to place himself in their path, and as they attempted to pass the plaintiff, he swung his arm at the first defendant connecting with his head. 
100. [100]
     I reject the submission made by the plaintiff’s counsel that the first defendant has no reliable or independent memory of the collision because he was knocked unconscious and was told by Ms Hopper what she believed happened.  That was not the effect of his evidence.  In response to the suggestion that he had no independent memory of what occurred the first defendant stated that he remembered exactly what happened before the collision.  His last memory was of the plaintiff’s arm striking his face.  He was thereafter rendered unconscious.  I accept his evidence in that regard.
101. [101]
     As to Ms Hopper, it is submitted her evidence is not reliable because she has given three differing versions about what happened – in her initial police statement (Exhibit 36), her evidence at the first defendant’s trial (Exhibit 37) and her evidence at this trial.  It must not be forgotten that she was giving evidence about an incident that took place more than 7 years after it occurred.  And that she was describing events that were all over and done with very quickly.  Some differences or anomalies as between her accounts ought to be expected in those circumstances.  However, in my view, her versions of the incident were broadly consistent across her statement, her evidence at the criminal trial and her evidence in this trial.  In all three versions her description of the plaintiff’s actions was consistent with the plaintiff intentionally striking the first defendant with his right arm as the motor bike attempted to pass him.
102. [102]
     Finally, there is the evidence of what the plaintiff told the three clinicians at the Cairns Mental Health Service.  The plaintiff’s counsel submits this evidence is “insufficient to cast any doubt about the truth of the plaintiff’s evidence.”^[50]  I disagree.  I do not accept the plaintiff’s evidence that he did not say what he is recorded to have said by these clinicians about his contact with the first defendant.  No reason is advanced to explain how all three of these clinicians managed to record a version of the incident that had not been related to them by the plaintiff.  None of these clinicians had any reason to lie about what the plaintiff told them or to record a false version.  Whilst it is true that there is likely some cutting and pasting as between Ms Hanhart’s notes and Mr Braun’s notes, the description of the action taken by the plaintiff as the motorbike approached is expressed slightly differently by each of them.  That slight difference in my view demonstrates that both clinicians were recording things that were actually relayed to them directly by the plaintiff.  Significantly, what the plaintiff is recorded as saying to Ms Hanhart and Mr Braun matches with what he told his partner in the immediate aftermath (at least in so far as he describes the swinging arm deployed).  It also matches with the versions given by the two other people involved in the incident.  Further, what he told Dr Van Meer about road rage explaining his broken arm is also consistent with the cohesive narrative of events that emerges from a consideration of all but the plaintiff’s evidence. 
103. [103]
     The evidence about what the plaintiff told his partner, the accounts given by the first defendant and Ms Hooper, and the contents of the clinical notes supports the same conclusion: the plaintiff deliberately assaulted the first defendant by swinging his arm at him as he rode past.

Findings about the circumstances of the incident

104. [104]
     In accordance with s 79(3) of the Evidence Act, the second defendant has succeeded in rebutting the presumption arising from the first defendant’s conviction that his dangerous operation of the dirt bike caused the plaintiff’s injury.  Relying on the evidence described above, which originates from three separate and distinct sources (Ms Hammacott, the first defendant and his pillion passenger, and the three clinicians), I am persuaded, on the balance of probabilities, that the plaintiff deliberately moved into the path of travel of the dirt bike and that as the first defendant attempted to ride past him, the plaintiff intentionally struck the first defendant in the head with his swinging right arm. 
105. [105]
     I make the following findings of fact about the circumstances of the incident.  In the afternoon of 9 June 2017, the plaintiff left his house and walked to the grassed verge across from the pedestrian pathway linking De Roma Close and Ramsey Drive.  He was frustrated and upset.  His intention was to confront the first defendant about using the area to ride dirt bikes.  He stood on a part of the grassed verge that was about 4m wide.  When he saw the first defendant approaching from the north, he stood directly in its path of travel.  The first defendant was about 100 metres ahead of him.  The first defendant slowed the motorbike down and attempted to adjust the bike’s course by variously veering right and then left but each time he adjusted his direction of travel, the plaintiff moved into his path.  The plaintiff was acting in a manner that the first defendant reasonably perceived was aggressive.  His fists were clenched, and he displayed an angry disposition.  The first defendant was concerned for his own safety and that of Ms Hopper.  He decided to ride past the plaintiff whilst remaining on the grassed verge.  As he came closer to the plaintiff, the first defendant attempted to veer to the right, away from the plaintiff and toward the road.  The plaintiff moved to his left and out of the direct path of the motorbike, but as the motorbike travelled past him and to the right of his body, he deliberately swung his right arm out and into the first defendant’s head, knocking the first defendant and Ms Hopper from the bike and causing the plaintiff to sustain the fractures to his right arm.  Had he not deliberately swung his arm at the first defendant, the bike would have travelled safely past the plaintiff without making any contact with him. 

Liability

106. [106]
     The plaintiff’s counsel conceded that if the court found, as it has, that the plaintiff deliberately moved into the path of travel of the dirt bike and that as the first defendant attempted to ride past him he intentionally struck the first defendant in the head with his swinging right arm, the inevitable result would be that the plaintiff’s case on liability fails.^[51]  That concession was appropriate for at least three reasons. 
107. [107]
     First, because on the facts as found, the first defendant was not in breach of any duty of care that was owed to the plaintiff.  Whilst the first defendant owed the plaintiff a high duty of care as a pedestrian on a pathway, whether negligence is established must depend on the facts of each case.^[52]  The plaintiff has not established that the first defendant failed to exercise reasonable care in the circumstances that were presented to him as he rode towards the plaintiff on the grassed verge.  It was not unreasonable for the first defendant to ride the dirt bike on the grassed verge. He was not riding on the road as he was conscious that he was on an unregistered dirt bike and was aware that there was traffic on the road. He was not riding at speed and had slowed down after observing the plaintiff ahead of him.  With more time and an opportunity for calm reflection, it may have been prudent for the first defendant to have come to a complete stop rather than attempting to pass the plaintiff on the grassed verge.  However, he did not have such time or opportunity.  He was faced by an obviously angry and aggressive man attempting to block his path.  He was concerned for his safety and that of his passenger if he did stop.  The plaintiff presented an obvious risk to him.  In the agony of the moment, the first defendant decided his best course of action was to veer away from the plaintiff and ride past him.  His action in doing so was not an unreasonable thing to do in all of the circumstances.^[53]  Indeed, if not for the plaintiff’s swinging arm, the first defendant would have been successful in passing by the plaintiff safely. 
108. [108]
     Second, because even if there was a breach of the duty owed by the first defendant to the plaintiff, that breach did not cause the harm suffered by the plaintiff.  Pursuant to section 11(1)(a) and section 12 of the Civil Liability Act 2003 (Qld) (the “CLA”) the onus lies on the plaintiff to prove that the breach of duty was a necessary condition of the occurrence of the harm.  Here, the plaintiff cannot establish that factual causation.  The cause of the plaintiff’s injuries was obviously his own action in deliberately striking the first defendant as he rode past.  If not for his own action, he would not have suffered injury.
109. [109]
     Third, because even if a causative breach of duty was established, in deliberately swinging his arm at the head of the first defendant as he rode past, the plaintiff was engaged in criminal behaviour.  Where liability is otherwise proved, s 45 of the CLA provides for an exemption from liability where the breach of duty happened while the person who suffered harm was engaged in conduct that is an indictable offence and the person’s conduct contributed materially to the risk of the harm.  The onus of proof under s 45(1) lies with the defendants.  On the findings I have made, this onus is easily met.  The plaintiff’s action in deliberately striking the first defendant amounted, at the very least, to a common assault of the first defendant under s 335 of the Criminal Code 1899 (Qld).  That assault was conduct which clearly contributed materially to the plaintiff’s risk of harm.  Without that conduct the plaintiff would not have been injured. 
110. [110]
     In view of the findings of fact that I have made about the conduct of the plaintiff in deliberately swinging his arm at the first defendant as he rode past him on the dirt bike, the plaintiff has failed to establish the defendants are liable for the injuries he suffered in the incident. 

Quantum

111. [111]
     In the event that my conclusions on liability are wrong, I will proceed to an assessment of the plaintiff’s damages.
112. [112]
     The agreed injuries are as follows:

     1. Comminuted fractures of the right radius and ulna mid shaft;
     2. Pulmonary embolus; and
     3. Adjustment disorder with mixed anxiety and depression.^[54]
113. [113]
     Damages are to be calculated pursuant to the CLA.

General damages

114. [114]
     In terms of the assessment of the plaintiff’s general damages, s 51 of the CLA provides:

“general damages means damages for—

1. pain and suffering; or

2. loss of amenities of life; or

3. loss of expectation of life; or

4. disfigurement.

injury means personal injury.”

115. [115]
     Pursuant to sections 61 and 62 of the CLA, when assessing general damages, a court must:

     1. Make an assessment of the injury scale value (ISV) of the relevant injuries;
     2. Calculate the damages pursuant to that ISV in accordance with the formulae set out in the Act
     3. Have regard to the injury scale values given to similar injuries in previous proceedings.
116. [116]
     Section 7 of the Civil Liability Regulation 2014 (Qld) (“the Regulation”) provides the ranges of ISV for particular injuries.  The first step in determining an ISV for a particular injury is to identify the appropriate item (injury) in schedule 4 of the Regulation.  The second step in the process is to select the appropriate ISV within the range prescribed for that particular item.
117. [117]
     In assessing the ISV, s 10 of schedule 3 of the Regulation provides the extent of whole person impairment (“WPI”) is a relevant consideration.  Schedule 8 provides WPI means a percentage estimate of the impact of a permanent impairment caused by the injury on the injured person’s overall ability to perform the activities of daily living other than employment.  Schedule 4 allows for consideration to be had to WPI in ascertaining the appropriate ISV within the range prescribed for a particular injury/item. 
118. [118]
     For psychiatric injury, it is necessary to ascertain the psychiatric impairment rating scale (“PIRS”) by reference to schedule 6 of the Regulation to in turn relate it to schedule 4 to determine the relevant ISV.

The physical injury

119. [119]
     In Dr Gillett’s reports dated 12 April 2017 and 21 April 2021, he assesses a 3% WPI with respect to the fractured right arm, and 1% WPI for the associated scarring, totalling a 4% WPI for the plaintiff’s physical injuries.
120. [120]
     When the plaintiff later attended on Dr Gillett for assessment on 2 July 2024, the plaintiff presented with some improvement to his physical injuries, and Dr Gillett accordingly assessed the plaintiff as having sustained a 3% total WPI which was made up of 2% WPI for the fractured right arm and 1% WPI for scarring.
121. [121]
     The plaintiff did not adduce expert evidence which assesses the nature and extent of pulmonary embolus that he sustained; however, I do accept that the plaintiff did indeed suffer pulmonary embolus secondary to his fractured right arm.

The psychiatric injury

122. [122]
     In terms of the plaintiff’s psychiatric injury, under cover of his report dated 17 April 2018, Dr Foxcroft initially assessed the plaintiff’s adjustment disorder at 7% on the PIRS.  In his later examination of the plaintiff on 2 June 2021, Dr Foxcroft assessed the PIRS at 5% and then reduced it to 4% when he examined the plaintiff on 19 July 2024.
123. [123]
     In his original report dated 3 September 2018, Professor Whiteford initially assessed the plaintiff at 5% on the PIRS.  Professor Whiteford later reduced his PIRS assessment to 0% following his examination of the plaintiff on 14 September 2021.  Professor Whiteford has not examined the plaintiff since that time.
124. [124]
     I prefer Dr Foxcroft’s PIRS assessments for the following reasons.  In his later reports dated 7 June 2021 and 22 July 2024, Dr Foxcroft makes reasonable and measured concessions that the plaintiff’s psychiatric condition has improved as time goes by, and this is reflected in Dr Foxcroft’s reductions in the PIRS assessments. Professor Whiteford, through no fault of his own, has not examined the plaintiff in more than three years.  By his own evidence, Professor Whiteford accepts that psychiatric symptomology fluctuates^[55] and that he cannot comment on what the plaintiff’s psychiatric condition was like in 2024, which ultimately rendered him unable to comment on whether he agrees with Dr Foxcroft’s 2024 PIRS assessment.^[56] 
125. [125]
     I therefore find it difficult to accept Professor Whiteford’s PIRS assessment in circumstances where that assessment was some three years before the commencement of this trial.  It is not indicative of the plaintiff’s current level of psychiatric symptomology.

Assessment

126. [126]
     As to the physical injury, the plaintiff argues it is appropriately categorised as an ISV 15 under item 107 of the Regulations, which has an ISV range of 6 to 15. The legislative guidelines however state that an ISV at or near the bottom of the range will be appropriate if there is a WPI of 6% and an ISV at or near the top of the range will be appropriate if there is a WPI of 12%.  Clearly, the plaintiff’s 3% WPI attached to his right arm injury does not come close to these yardsticks.
127. [127]
     I accept the second defendant’s submission that the plaintiff’s physical injury is best categorised under item 123 of the Regulations with an ISV of 8 uplifted by 25% to reflect the plaintiff’s additional psychiatric injury.  An ISV of 10 attracts a general damages award of $15,750.

Past economic loss

128. [128]
     The plaintiff was born on 11 July 1978 and is presently 46 years of age.
129. [129]
     Through his quantum statement^[57], the plaintiff gives the following evidence of his education and employment history.  He attended high school but left midway through year 12 in 1995 to commence an apprenticeship as a fitter and turner with the Port Lincon tuna processors.  He completed his apprenticeship in 2001 and became a qualified fitter and turner.  He entered the mining industry in 2004 when he gained employment as a fitter and turner at the Olympic Dam Mine.  He remained employed at Olympic Dam Mine in various plant and equipment maintenance roles until April 2013.  Following this, the plaintiff and his family relocated to Cairns, and he commenced employment with Glencore as a fly in fly out worker at the Earnest Henry Mine at Cloncurry as a fitter and turner.  In January 2015, the plaintiff left his employment at the Earnest Henry Mine so that he could be present at home and assist his then partner through her pregnancy.
130. [130]
     The plaintiff has not returned to the mining industry following his resignation from Glencore in 2015.
131. [131]
     The plaintiff’s evidence is that in the months following his resignation he drove cranes on construction sites for approximately one month, and then worked at Totally Workwear as a warehouse manager for a couple of months.  From 8 August 2015 to 8 July 2016 the plaintiff worked at Skill 360 as an apprenticeship employment coordinator.  Following this, the plaintiff had a short stint as a stay-at-home parent whilst his then partner established her own marketing business.  In 2016, the plaintiff completed a Certificate IV in Training and Assessment and then worked at TAFE as a teacher for a couple of months.  In August 2016, the plaintiff commenced casual employment as a boarding house supervisor for AFL Cape York House which is a camp for indigenous youth from the Cape and other remote regions across North Queensland.  On 28 January 2017, he commenced permanent employment with Cape York House.  As a permanent employee, the plaintiff earned $760 net per week.
132. [132]
     At the time of the incident, the plaintiff was working in his permanent role with Cape York House but says that he had commenced making enquiries about returning to work in the mining industry.  Due to his injuries, the plaintiff was unable to return to work at Cape York House for approximately eleven weeks.  On 28 August 2017, the plaintiff was cleared by his general practitioner to go back to work on light duties.  He returned to work for 2 weeks, but he struggled due to his injuries and took another three weeks off until he returned to work in early October 2017.  From October 2017 to the commencement of the trial, the plaintiff maintained relatively consistent employment mainly in the recruitment and youth support work sector, save for a period of six months that he spent in Canada with his then partner.
133. [133]
     The plaintiff asserts that but for his subject injuries, he would have returned to the mining industry thereby earning significantly more remuneration than he otherwise would have earned at Cape York House and his subsequent employers.  I do not accept the plaintiff’s evidence in this regard.  His employment history subsequent to his employment at Glencore suggests he was looking to move away from this type of work prior to the incident.
134. [134]
     In support of his supposed intention to return to the mining industry, the plaintiff relies on an email exchange that he had with a recruitment consultant.^[58]  The email exchange is dated 10 July 2017 and reads as follows:

At 9:43am, the recruitment consultant wrote:

“Good morning,

I have a number of Clients who are currently seeking HD Fitters, they are based in the following locations:

• Laverton – VIC
• Loganholme – BNE
• Goldfields – WA

If you are in the market and would consider making a move, please send me your updated CV and I will make contact with you to discuss in more detail.

Thank you,”

At 1:19pm that same day, the plaintiff responded:

“Hi Sabrina,

Thank-you for sending this through, I appreciate you staying in touch.

When I was enquiring late last year, I had full intention to be returning to the mines.

Unfortunately, I’ve since then been involved in a motor vehicle accident that will not see me pass a medical examination at this point.

Should that ever change I will definitely be back in touch.

Kind regards,”

135. [135]
     I do not accept this email to be a genuine reflection of an intention to return to the mining sector.  The timing of the email exchange is problematic.  The email exchange occurred one month and one day after the incident, and by this time the plaintiff had already contemplated, and taken steps to pursue a claim for damages.^[59]  In this context, his email appears to be a cynical attempt to bolster the economic loss component of his claim.  A text message exchange between the plaintiff and his then partner on the very same day the emails were exchanged confirms as much.^[60]  The text messages read as follows:

At 4:52pm on 10 July 2017, the plaintiff texted:

“Can you please print off the email from the mining company to give to the lawyers as proof I approached a recruitment agency to help me find employment within the mining industry

Also any other emails I have on yahoo showing proof

I’ve had about 25 of them emails over last year but can’t find them in my emails”

136. [136]
     In his email to the recruitment consultant dated 10 June 2017, the plaintiff states that “he would not be able to pass a medical examination at this point” and “should that ever change I will definitely be back in touch”.  Given that the plaintiff expressed this view only one month following the date of injury, it may well have been true that he would not pass a medical examination with his injuries still being relatively recent.  However, by the time the plaintiff’s physical injury had begun to stabilise, medical opinion said otherwise.^[61] 
137. [137]
     The only person who expresses the view that the plaintiff could not pass a medical examination for the purposes of re-joining the mining industry is the plaintiff.  This notion is not supported by medical evidence.  In any event, it is telling that the plaintiff has never attempted to take real steps to return to the mining industry such as undergoing a pre-employment medical examination since he left Glencore or following the stabilisation of his subject injuries. 
138. [138]
     I am not persuaded it is appropriate to calculate economic loss on the basis the plaintiff ever held an intention to return to the mining sector.
139. [139]
     The plaintiff gives evidence that due to his injuries he was unable to return to his employment as a youth worker for approximately 14 weeks.^[62]  I accept this, and accordingly allow past economic loss for a 14-week period at $760 net per week which equates to past economic loss in the sum of $10,640.
140. [140]
     Interest on past economic loss is calculated as follows: $10,640 x 4.33%^[63] ÷ 2 x 7.35 years = $1,693.11.

Past loss of superannuation

141. [141]
     The parties have agreed that the past loss of superannuation benefits is to be calculated at a rate of 9.75%.^[64]
142. [142]
     Accordingly, I award past loss of superannuation benefits in the sum of $1,037.40. 

Future economic loss

143. [143]
     The plaintiff is 46 years of age and has another 21 years until he reaches the statistical retirement age of 67 years.
144. [144]
     He remains employed on a full-time basis as a youth worker for Youth Link.
145. [145]
     It is plain that the plaintiff has a residual earning capacity; he has continued to work in some form of employment since the date of injury save for a period of six months in which the plaintiff lived in Canada with his then partner, and other short periods in between jobs.
146. [146]
     Whilst I do not accept that the plaintiff would have returned to the mining industry but for his subject injuries, I do accept that his subject injuries will, to a limited extent, negatively impact his future earning capacity and place him at a disadvantage on the open labour market.
147. [147]
     In arriving at this conclusion, I rely on the opinions of Drs Gillett and Foxcroft who both comment on the plaintiff’s future capacity for employment.
148. [148]
     So far as his ongoing and future employment as a youth worker is concerned, in his report dated 2 July 2024 Dr Gillett opines:

“In relation to his youth work, he has capacity to undertake that work in a more supervisory advisory aspect.  The issues he describes at present in relation to driving and physicality with separation of youths is consistent with his injuries and his limitations remain ongoing.  That is, overall, he is best suited in a non-hands-on heavy capacity using right upper limb.”

149. [149]
     In terms of his psychiatric injury, Dr Foxcroft forms the opinion that the plaintiff’s capacity for employment has not been impeded since 2021.  In his report dated 22 July 2024, Dr Foxcroft opines:

“He has, however, returned to full-time youth work over the past four years, was working in full-time youth work at the time of the review in 2021 and has continued to work in similar roles. He currently works in a non-residential care organisation with homeless youth in full-time youth work. He has had a partial incapacity for work in the periods just after the subject accident, but has been working in full-time youth work with no impairment in his capacity to work since 2021.” 

150. [150]
     I consider it appropriate to make a global award for future economic loss in the sum of $25,000 inclusive of superannuation contributions.

Special damages

151. [151]
     The parties are in agreement that special damages are assessed in the sum of $5,998.80.^[65]

Future treatment expenses

152. [152]
     In his report dated 2 July 2024, Dr Gillett opines that any future treatment is confined to the removal of the surgical metalwork at a cost of around $7,000.  This, however, comes at a risk in the form of potential neurovascular damage.  Dr Gillett opines that if the plaintiff can live with his condition and modify activities to control his crepitus, then it would be reasonable not to undertake it.  Dr Gillett further opines that if the plaintiff continues to have issues or developed any pain associated with the crepitus, then removal of the plate would be considered appropriate. 
153. [153]
     In light of Dr Gillett’s opinions, I consider there to be a 50% chance of the surgery becoming necessary.  Accordingly, I award a global sum of $3,500 for the possibility of the surgery to remove the surgical metalwork. 
154. [154]
     The plaintiff has demonstrated a willingness to engage in psychological treatment.  As such, I am prepared to allow, in full, Dr Foxcroft’s recommended future treatment in the form of 10 fortnightly sessions of counselling from a clinical psychologist or psychiatrist skilled in cognitive behavioural therapy and dialectical behavioural therapy at a cost of $240 per session.^[66]
155. [155]
     The cost of future psychological treatment is calculated as follows: a weekly cost of $46.15 x the 5% multiplier of 51 which totals $2,353.65. 
156. [156]
     I further make a modest global allowance in the sum of $500 on account of sporadic medical attendances and analgesics that the plaintiff may require with respect of his physical injuries throughout the course of his life. 

Future paid care

157. [157]
     The plaintiff contends for a global award of $5,000 for future paid care which represents the chance the plaintiff will be required to pay for commercial services of “heavy cleaning” and lawn and garden maintenance, should he and his current partner separate.^[67]
158. [158]
     I decline to make such award in circumstances where there is no orthopaedic or psychiatric expert evidence to support the notion that the plaintiff is unable to undertake these tasks. 

Summary of damages

159. [159]
     In summary, I assess the plaintiff’s damages as follows:

Conclusion

160. [160]
     The claim is dismissed.
161. [161]
     Insofar as costs are concerned, I encourage the parties to confer and agree on an appropriate order.
162. [162]
     If this cannot occur, the parties should, within 14 days, advise the court and file written submissions as to their respective positions on the question of costs.