Du Pradal v Petchell[2014] QSC 261

SUPREME COURT OF QUEENSLAND

1. On Sunday 29 June 2008 the first plaintiff, Mr Du Pradal, was snorkelling off Cape Moreton when he was run over by the white-coloured motor boat (a Haines Hunter 450S vessel) driven by the defendant, Mr Petchell. The third party, Mr Willsford, was in Mr Du Pradal’s yellow-coloured motor boat (a Seafarer Viking vessel) at the time of the accident.

2. Mr Du Pradal who was born in 1943 suffered severe injuries in the accident. He claims his injuries and consequential loss and damage were caused by the negligence of Mr Petchell. Mr Du Pradal was an employee and director of the second plaintiff which claims to have suffered loss as a result of the deprivation of his services.

3. Mr Petchell denies liability for the accident and claims that it was caused or contributed to by Mr Du Pradal’s own negligence. Mr Petchell also claims that the accident was caused or contributed to by the negligence of Mr Willsford and brings the third party proceeding against Mr Willsford.

4. At the commencement of the trial it was directed that the third party will be bound by any judgment given between the plaintiffs and the defendant and evidence in the proceeding between the plaintiffs and the defendant will be evidence in the proceeding between the defendant and the third party. Leave was also given to the third party to defend the plaintiffs’ claim against the defendant.

GPS data

5. Apart from the witnesses who were able to give evidence of their own observations made around the time of the accident as to the paths taken by the respective boats of Mr Du Pradal and Mr Petchell, and the activities in the water of Mr Du Pradal and Mr Willsford, the paths of both vessels were recorded on respective GPS systems. Software engineer Mr Kenneth Webber downloaded the material from the GPS systems and, using a computer program, showed the information on a series of maps that incorporated a sea map of the area (exhibits 6, 18, 37 and 49). The data obtained from the Garmin GPS unit on Mr Du Pradal’s vessel is set out in exhibit 5. For each point, exhibit 5 shows the date and time, the accuracy of the GPS unit, the distance moved since the last point, the time taken to move between the consecutive points, the speed and the longitude and latitude. The data from the Lowrance GPS unit used on Mr Petchell’s vessel is set out in exhibit 50. For each point, exhibit 50 shows the latitude and longitude and a reading in metres, so the distance between points is shown in metres. The Lowrance GPS unit did not record the time at each point. Both the Garmin GPS and the Lowrance GPS recorded a point when there was a change in speed or direction or location. The Garmin GPS gave the speed of Mr Du Pradal’s vessel, but the Lowrance GPS did not provide the speed of Mr Petchell’s vessel (because it did not record the time).

6. The maps produced from the data show the paths of the respective vehicles around the time of the accident. Mr Webber identified six drifts of Mr Du Pradal’s boat (exhibit 18). A drift is where the vessel moves with the current or wind and the speed is less than about 3km per hour.

7. The accuracy of the data downloaded from the GPS units was not in issue, but its interpretation because of the inherent limitations of the respective GPS units was to some extent in issue.

The accident

8. The day of the accident was fine and sunny. Early in the morning Mr Du Pradal and Mr Willsford left Scarborough for Brennan Shoal where they did some snorkelling.  Prior to 11 am Mr Du Pradal navigated his vessel from Brennan Shoal to a position adjacent to Honeymoon Bay off Cape Moreton and stopped the vessel at approximately 11 am.  Mr Du Pradal noticed a large group of between 8 to 12 anchored boats fishing in the vicinity.  Most were “tinnies”.  Mr Du Pradal said he displayed the dive flag (similar to exhibit 10) by placing it in the fishing rod holder on the frame of the canopy on the starboard side of his boat (as shown in exhibit 11).  Mr Willsford remembered that the dive flag was on display in Mr Du Pradal’s boat when he was in the water on this occasion.   

9. Mr Willsford went snorkelling at this location first. Mr Du Pradal let Mr Willsford decide where he wanted to swim. Mr Willsford was swimming about 20 to 30m from the other boats while Mr Du Pradal’s boat did a couple of drifts. Mr Willsford’s dives were closer to the shore than Mr Du Pradal’s dive (at Transcript 4-45). Mr Willsford was drift diving with the current and the presence of a current was a function of his decision to do drift diving. There were other divers in the water closer to the shore.

10. Mr Du Pradal commenced snorkelling and spearfishing at about 11:50 am. He attached his Ronstan hard plastic orange float that was 500mm long and 200mm wide to his spear gun with 20m of line before he entered the water. Mr Du Pradal was wearing a dark grey and blue wetsuit with a hood. He wore black goggles and was using a black snorkel. He was wearing long green fins.

11. Mr Du Pradal’s boat was not anchored whilst he was snorkelling. (The movement of his boat whilst he snorkelled when it was not being driven is shown as drifts 5 and 6 on exhibit 18.)

12. When Mr Du Pradal got into the water, he said he was about 30 to 40m from the other boats which were closer to the land (at Transcript 1-32). He noticed there was no current. Mr Du Pradal was swimming towards the anchored boats (which were now only 15 to 20m away) and a sandy area.

13. On the morning of the accident Mr Petchell and his friends Mr King and Mr Sandford left in Mr Petchell’s boat from Bribie Island to travel around Cape Moreton to Deep Tempest where they went fishing.  Their outward path of travel was about a kilometre further out from Cape Moreton than their return path of travel (map 3 of exhibit 6).  They were on their return trip when the accident occurred.   

14. Immediately prior to the accident, Mr Du Pradal said he was floating in the water with his face downwards (waiting for fish to appear), but his head and shoulders out of the water (at Transcript 2-12). He had looked up by lifting his head to see Mr Willsford on his boat eating a sandwich (at Transcript 1-33). He was about 20 to 30m away from his boat. He was close to his float, as the float line was not stretched (at Transcript 2-4). He was close to other boats and felt safe (at Transcript 2-14). He did not hear the approach of Mr Petchell’s boat which he would have expected to hear, if his head had been under the water, as the sound of the boat would have been magnified (at Transcript 1-34). Mr Du Pradal estimated (wrongly) that he was about 100m from the shore when he was struck by Mr Petchell’s boat. Mr Du Pradal conceded in cross-examination that the drift of his boat shown on exhibit 18 immediately before the accident suggested there must have been a current flowing (at Transcript 2-10) or a light south-easterly breeze (at Transcript 2-32).

15. Mr Willsford observed that when Mr Du Pradal got into the water for this dive prior to the accident, he snorkelled near his own boat. When Mr Du Pradal came “uncomfortably close” to his boat, Mr Willsford repositioned the boat slightly up current of him about 30 or 40m away (at Transcript 3-54). Mr Willsford recalled that the most of the anchored boats were to the south of him and there was one boat to the north of him (at Transcript 3-57). During cross-examination, Mr Willsford agreed that during his dive, Mr Du Pradal would have dived under the water, before returning to the surface and said he was guessing when he said that Mr Pradal would have done it “a few times”(at Transcript 4-58).

16. Both the boat and Mr Du Pradal were drifting in a north-westerly direction, when Mr Willsford observed Mr Petchell’s vessel 100m or slightly more away from Mr Du Pradal’s vessel and coming in across from the port side. It was moving on the top of the water or planing, as it was travelling “quite fast” (at Transcript 3-56). Mr Willsford observed three people on the boat and tried to attract their attention by waving his arms and yelling at them. He saw them observe Mr Du Pradal’s float in the water, as they pointed to the float and turned their heads. Mr Willsford did not see Mr Du Pradal struck by the boat, but could hear the sound. He was watching Mr Petchell’s boat, when he heard the sound (at Transcript 4-48). He did not observe any noticeable alteration in the speed of Mr Petchell’s boat before it struck Mr Du Pradal (at Transcript 3-57). Mr Du Pradal was between 20 and 40m away from his boat when he was struck. The nearest of the anchored boats to Mr Du Pradal when he was struck was about 20m away (at Transcript 3-57). Mr Willsford immediately started the boat and drove it cautiously to Mr Du Pradal, in order to retrieve him.

17. According to the Garmin GPS, the point at which Mr Willsford started the boat was about point 194. The accident must have occurred when Mr Du Pradal’s boat was travelling between point 193 and point 194 (shown on map 5 of exhibit 6). That fixes the time of the accident at 11:58 am.

18. Mr King was in the passenger seat to the left of the driver’s seat in Mr Petchell’s boat. The boat had rounded the Cape travelling about 28 miles per hour, but proceeded to slow down, because the swell started to pick up.  Mr Petchell’s boat was riding the swell – accelerating to go up the wave and decelerating to come down.  Mr King noticed two groups of five or six boats each and a gap around 40m between the two groups of boats.  Mr Petchell’s boat had slowed down to about 13 miles per hour (at Transcript 4-80) and was proceeding in the middle between those two groups of boats.  The first thing that Mr King saw as the boat was coming down on the wave was a buoy and then everything happened in a split second.  Mr Petchell said:  “whoa, what was that? was a crab pot”, started turning the boat to the right and knocked the boat into neutral.  When the boat stopped swerving “and it was sort of momentuming forward”, Mr King saw a black wetsuit in the water only 5 or 6m in front of the boat that “just sort of popped up right in front of the bow” (at Transcript 4-81).  Mr King could feel the diver go underneath the boat on the passenger side of the boat where he was standing, and the boat was floating adrift, coming to a stop.

19. As Mr Petchell’s boat approached Cape Moreton, Mr Sandford was standing behind Mr Petchell and Mr King.  Mr Sandford’s markings on the photograph of Cape Moreton (exhibit 55A) incorrectly identified the general vicinity of where the accident occurred, but his markings give some relativity to what he recalled observing about the location of the other boats in the area and Mr Du Pradal.  Mr Sandford observed two groups of boats with about five or six boats in each group and the distance between the two groups of boats, he estimated “At a guess it could be 40 to 50m” (at Transcript 5-56).  As they came around to Cape Moreton, Mr Sandford observed a marker buoy with the groups of boats on either side and as they came through the gap, at the last second he saw “something bob up” and then felt a thud.  Mr Sandford thought the orange marker buoy was a crab pot buoy.  He estimated the boat was about 5 to 6m away from the object he saw pop up.  Mr Petchell’s boat was travelling about 15 miles per hour and the boat was “up on the plane” (at Transcript 5-60).  Immediately after the thud, Mr Petchell put the boat into neutral and the boat slowed and, when Mr Sandford looked around, he saw a man in the water and a yellow boat which he had not seen earlier that tried to pick him up (at Transcript 5-57). 

20. At the time of the accident Mr Bartley was fishing with his son in his half-cabin 18 footer about 400m from the northern tip of Cape Moreton. His brother’s boat was about 10m away from his boat, closer to the island and there were three to five other boats closer to the island again. Mr Bartley did not observe the collision, but observed the activities in the area before and after the collision. He had noticed the yellow boat with two divers. He had also noticed another boat 150 to 200m closer to the island with spear fishermen. Mr Bartley’s boat and his brother’s boat were anchored and he noticed the yellow boat “drifting through all the time, just drifting past us” (at Transcript 2-63). The yellow boat got 4 to 5 feet away from Mr Bartley’s brother’s boat. The diver got within 5 feet of Mr Bartley’s boat. Mr Bartley noticed that of the two divers on the yellow boat, one was an older fellow and one was a younger fellow. The older fellow had an orange float that Mr Bartley recognised as a dive float. Mr Bartley saw a dive flag on the yellow boat which he thought was on the left hand side on the transom of the boat at the back and hidden by the motor at times.

21. Mr Bartley heard a bang and then heard a roar like “the motor rev hard in reverse” and it then stopped. It was apparent from Mr Bartley’s evidence that he thought that it was the yellow boat that had struck the man in the water. He saw the yellow boat stop in a hurry and reverse back very quickly and the man in the boat leaning over the back to grab another man. Mr Bartley thought the roar of the engine was from the yellow boat. The yellow boat was about 10m away from Mr Bartley’s boat when it reversed back and was about 10m away when the man in the yellow boat grabbed at the man in the water. The man in the boat was having trouble getting the other man into the boat and they were drifting away from Mr Bartley’s vessel. He observed that “the current was running pretty strong out there”. Mr Bartley had not observed the white boat pass at all and said that it was about 150 or 200m out further.

22. Mr Petchell was driving the boat between 10 to 15 miles per hour as it approached Cape Moreton.  The speed of the boat varied, depending on where the boat was sitting in relation to the swell which was around one and one-half metres.  He described what happened as he approached the stationary boats in these terms at (Transcript 5-67):

“When I was coming back in and I was off Moreton Island, I saw the two groups of boats there anchored.  As I was approaching the boats, I saw a red buoy in between the thinner of the two boats.  My initial thought to that red buoy – I thought it was a crab pot or a lobster pot.  As I was approaching that – the group of boats – the buoy would go in and out depending on where you were in relation to the swell.  Yeah.  And then as I approached the group of boats, there was a safe passageway through there and I saw the red buoy up in front of myself and as I approached the buoy, I was looking out.  I stayed back a little bit and then I went between the centre of the two groups of boats and when I mean the centre, the groups of boats weren’t just dead lined up.  They were pretty close to a line but so that centre line’s over a wide distance.  I saw the red buoy there and initially I thought it was a crab pot or a lobster pot down there.  I hadn’t seen people spear fishing there before.  When I saw the pot there, I – it was sitting roughly in between the centre of the passageway.  I didn’t want to go too close to the boats – the boats that were anchored on my starboard side which was the right-hand side so I picked a course where I knew I was a safe distance away from the boats and I wasn’t going to run into the buoy.  As I approach the buoy, I was looking in front of myself.  I was standing up.  I had good vision.  And the – I passed the red buoy on my portside.  I saw it out the corner of my eye.  I knew I was clear from there.  And once I passed the red buoy, I was an exact distance, again, it’s – I was looking out directly over the bow of the boat and – well, a diver popped up on my left-hand side.”

23. The red buoy was about 100 to 150m away when Mr Petchell said he first saw it and he dropped speed to around 10 miles per hour as he got close to it. There was a gap of about 30 to 50m between the boats that he was passing through. The boats he was passing were anchored vessels, as all the bows were pointing in one direction and they were not drifting. Mr Petchell was aware of the speed limit of 6 knots when passing within 30m of an anchored vessel (at Transcript 5-75). He steered the boat to the right-hand side of the buoy. Mr Petchell did not realise at first that the black object that came up directly over the bow about 3m from the tip of the bow was a diver. When he saw the black object, the buoy was about 20m from it. When the black object came up, Mr Petchell’s first reaction was to put the motor into neutral and he did veer the boat a little to the right, but the power was out of the motor. He felt two hits to the port side of the boat and felt something run down the side of the boat. Mr Petchell was turning around to look out of the back of his boat when he saw the yellow boat go to the diver’s rescue. He did not see any dive flag on the yellow boat. The yellow boat then came towards his boat and the request was made for him to radio for help.

24. After Mr Willsford got Mr Du Pradal into his boat, he noticed that Mr Petchell’s boat was not in the immediate proximity. He estimated from map 27 of exhibit 6 that it was stopped at about point 4-1297. Mr Willsford drove Mr du Pradal’s boat, so that it approached Mr Petchell’s boat and he could confirm that help was on its way and the helicopter should go to Comboyuro Point. Mr Willsford then drove the boat to the area known as Yellow Patch.

25. Mr Du Pradal was transferred by helicopter from Moreton Island to the Royal Brisbane and Women’s Hospital.  Mr Willsford spoke to Sergeant Evans and the other police officer when they arrived at Yellow Patch about one and one-half hours after the accident (at Transcript 4-27).  The police took the photographs of Mr Du Pradal’s boat that comprise exhibit 1.  Mr Willsford accompanied the police on the police boat when they went to look at the approximate location of the accident.  A photograph was taken of the area (exhibit 36) about two hours after the accident.  A number of witnesses confirmed that there is usually an afternoon sea breeze on Moreton Bay.  When Mr Wood was shown exhibit 36, he considered that it showed it was “a beautiful day” at the top of Moreton Island (at Transcript 4-24).   

Location of the accident

26. Although a number of the witnesses described by reference to the photographs in exhibit 3, the approximate point of impact between Mr Petchell’s boat and Mr Du Pradal, the plotting of the GPS data gives a more precise general area of the collision. It had to be on the line plotted from the GPS on Mr Petchell’s boat. After the accident, Mr Willsford drove Mr Du Pradal’s boat close to Mr Du Pradal in order to retrieve him from the water. According to the Garmin GPS, it took 41 seconds for Mr Du Pradal’s boat to move from point 194 to point 200 which was about where Mr Du Pradal was rescued. The intersection of the path between Mr Du Pradal’s boat and the path of Mr Petchell’s boat is between point 200 and point 201 on map 5 of exhibit 6. In the time it took for Mr Willsford to get Mr Du Pradal’s boat to Mr Du Pradal, he would have moved with the current, but it gives a good indication of the area of the collision. That is measured by Mr Webber as being 380m from the tip of Cape Moreton, as shown on map 4 of exhibit 6.

27. I find that the accident occurred at a popular fishing and diving spot. Apart from the evidence of Mr Du Pradal and Mr Willsford, this was shown by the number of fishing boats that were anchored on the day of the accident and from the experience of other witnesses. Mr Bartley had fished in the location for two or three years and always saw other people there fishing or diving (at Transcript 2-62). Mr Guy Wood who was an independent witness had been free diving or spearfishing for over 30 years and identified this area off Cape Moreton as a popular dive spot, noting “you’ll get people jumping in there pretty much every weekend that’s diveable” (at Transcript 4-7). Another independent witness, legal practitioner Mr Randell who is involved in the Australian Underwater Federation (a body that represents underwater sports including spearfishing), identified the area where the accident occurred as a dive site. Sergeant Worrall had also seen people fishing and diving there. According to exhibit 6, the depth of the water where the accident occurred was greater than 10m and Mr Wood estimated it was between 10 and 20m (at Transcript 4-8). Sergeant Worrall described it as “an open clear waterway” (at Transcript 5-15). He also said there were no defined channels on chart in that region. It is an area traversed by recreational vessels. It is therefore misleading to describe it as a major boating channel.

Application of Civil Liability Act 2003 (Qld)

28. Although Mr Du Pradal’s claim against Mr Petchell for damages is based on a cause of action for negligence, the application of the law is modified by the Civil Liability Act 2003 (Qld) (CLA) (Reprint No 2). 

29. Mr Petchell’s defence relies on s 9(1) of the CLA that provides:

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

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

(b)the risk was not insignificant; and

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

30. In dealing with s 9(1)(c) of the CLA, s 9(2) sets out that the court must consider (among other relevant things) the probability that the harm would occur, if care were not taken; the likely seriousness of the harm; and the burden of taking precautions to avoid the risk of harm. 

31. In relation to causation, s 11 of the CLA applies.  Under s 12 of the CLA, Mr Du Pradal has the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation in deciding the issue of liability for breach of a duty.

32. Under s 23 of the CLA the principles in deciding whether a person has breached a duty also apply in deciding whether the person who suffered harm has been guilty of contributory negligence in failing to take precautions against the risk of that harm.       

What caused the accident?

33. In simple terms, the accident was caused by Mr Petchell driving his boat over Mr Du Pradal in the water.

34. The causes of the accident that have been explored during the trial are:

1. Mr Petchell driving his boat too fast in the circumstances;

2. Mr Petchell failing to slow and keep a proper lookout on spotting the orange dive float;

3. Mr Petchell navigating his boat in breach of s 127(2) of the Transport Operations (Marine Safety) Regulation 2004 (Qld) (the Regulation);

4. Mr Petchell not operating his boat safely contrary to s 43 of the Transport Operations (Maritime Safety) Act 1994 (Qld) (the Act);

5. Mr Petchell failing to observe the dive flag flying from Mr Du Pradal’s boat;

6. Mr Petchell failing to notice Mr Du Pradal in the water before his boat struck him;

7. Mr Petchell failing to observe Mr Willsford’s warning that Mr Du Pradal was in the water;

8. Mr Du Pradal snorkelling in a major boating channel;

1. The failure of Mr Du Pradal to have a dive flag on his float;

10. The failure of Mr Du Pradal to have a dive flag on his boat;

11. The breach by Mr Du Pradal of rule 27 of the Marine Orders – Prevention of Collisions (made pursuant to s 425(1AA) of the Navigation Act 1912 (Cth)) in failing to exhibit a rigid replica of the international code flag “A” not less than 1 metre in height on the buoy with a high visibility floating line and his vessel;

12. The failure of Mr Du Pradal to keep within a reasonable distance of his boat;

13. The failure of Mr Du Pradal to have an agreed position with Mr Willsford that Mr Du Pradal’s boat would maintain in relation to Mr Du Pradal;

14. The failure of Mr Willsford to ensure that Mr Du Pradal’s boat was operated safely thereby breaching s 43(1) of the Act;

15. The failure of Mr Willsford to ensure that a dive flag was erected on Mr Du Pradal’s boat and/or float thereby breaching rule 27 of the Marine Orders;   

16. Mr Willsford allowing Mr Du Pradal to drift an excessive distance from his boat;

17. Mr Willsford failing to keep Mr Du Pradal under adequate observation;

18. Mr Willsford failing to provide Mr Petchell with any adequate warning of Mr Du Pradal’s presence in the water;

19. Mr Willsford failing to warn Mr Du Pradal of the approach of Mr Petchell’s vessel.

35. In order to decide what caused or contributed to the accident, it is necessary to resolve the factual issues relevant to causation, including:

(a)whether the dive flag was displayed on Mr Du Pradal’s boat;

(b)Mr Willsford’s role whilst Mr Du Pradal was in the water;

(c)what Mr Du Pradal was doing when he was struck by Mr Petchell’s boat;

(d)the distance between Mr Du Pradal and his boat;

(e)the speed and path of Mr Petchell’s boat when it struck Mr Du Pradal;

(f)whether Mr Petchell was keeping a proper lookout.

The dive flag

36. Mr Du Pradal was an experienced diver and had been diving at this location off Cape Moreton on a monthly basis for the previous 20 years.  I am satisfied that, consistent with his practice, Mr Du Pradal had put the dive flag into the holder on his boat before Mr Willsford got into the water at this location.  That is consistent with Mr Willsford’s memory (at Transcript 3-51).  Even though Mr Bartley was mistaken about where on the boat the dive flag was displayed, he provided some confirmation that there was a dive flag on display. 

37. This only became an issue because the dive flag was not on the boat when it reached Yellow Patch. It did not necessarily follow that the dive flag was not there, when Mr Du Pradal was diving, from the fact that Mr Petchell, Mr King and Mr Sandford did not notice a dive flag on the yellow boat, when they saw it after the accident. Mr Willsford threw things out of the boat during his attempts to bring Mr Du Pradal on board after the accident (at Transcript 3-51) and travelled at some speed, up to 41 kilometres per hour (according to exhibit 5), to get to Yellow Patch. In any case, as neither Mr Petchell nor his passengers observed the yellow boat prior to the accident, the display or otherwise of the dive flag could not make any difference to the manner in which Mr Petchell drove his boat prior to the accident.

Mr Willsford’s role

38. Mr Du Pradal was some 30 years older than Mr Willsford and substantially more experienced in diving. Before the accident, Mr Du Pradal was very fit and strong. Mr Du Pradal chose where he wished to dive before entering the water and was satisfied as to his position relative to his boat very shortly prior to the accident. Mr Willsford was not Mr Du Pradal’s “dive buddy”, but was merely on Mr Du Pradal’s boat, whilst Mr Du Pradal was in the water. There was no arrangement between Mr Du Pradal and Mr Willsford requiring Mr Willsford to supervise Mr Du Pradal in the water. All Mr Du Pradal was expecting of Mr Willsford was that he would respond, if Mr Du Pradal lifted his spear gun in the air to signal he was ready to be collected (at Transcript 1-84).

Mr Du Pradal’s activity

39. Mr Du Pradal had been in the water only for about eight minutes when the accident occurred. I accept his evidence that he was trying to spot fish without success when he was struck. He would only dive down, if he saw a fish. He had not done so during this last turn in the water and was therefore floating on the surface of the water when he was hit by Mr Petchell’s boat. Mr Du Pradal’s evidence is supported by the fact that he did not hear the approach of Mr Petchell’s boat, as it is more likely he would have done had his head been under water. It is also supported by the location of his injuries on his left side and particularly his left lower limb injuries. Dr Gillett’s opinion is that Mr Du Pradal’s injuries were consistent with being struck by a rotating propeller, particularly the series of lacerations to the left lower limb (exhibit 23). Mr Du Pradal’s evidence is also supported by Mr Wood’s opinion that it would have been the head that broke the surface, when the diver returned to the surface from a dive (at Transcript 4-13).

40. Although Mr Bartley said that he recalled the older diver diving under the water and coming back up several times (at Transcript 2-78), he must have been mistaken about that observation in relation to the occasion that Mr Du Pradal went into the water before the accident. Mr Willsford was guessing about the number of times that Mr Du Pradal dived under the water. The submission was made on behalf of the defendant that Mr Willsford did not give evidence that Mr Du Pradal was floating when hit. To the extent that submission suggests the inference should be drawn that Mr Du Pradal must not have been floating when hit, it must be rejected. First, Mr Willsford was not cross-examined on whether Mr Du Pradal was floating when hit; and second, Mr Willsford did give evidence that he did not see Mr Du Pradal when he was struck by Mr Petchell’s boat, as he was watching the boat. In any case, in relation to both the evidence of Mr Bartley and Mr Willsford on this aspect, what was important was what Mr Du Pradal was doing immediately before the accident and not what he may have done when he initially entered the water.

41. I consider that the evidence of Mr Petchell and his passengers to the effect that Mr Du Pradal popped out of the water was their way of explaining why they saw Mr Du Pradal only immediately before impact. As they had not spotted him previously, they have used the language that suggested it was Mr Du Pradal who came up out of the water. Their description is more consistent with describing how it appeared to them, rather than an objective description of Mr Du Pradal’s activity immediately before the accident.

The distance between Mr Du Pradal and his boat

42. It was apparent that many of the witnesses gave inaccurate estimates of distances which was no doubt contributed to by the difficulty in estimating the distances between people and objects that are moving with the current and/or breeze. Even though Mr Du Pradal thought that immediately before the accident he was only about 20 to 30m from his boat and Mr Willsford estimated that Mr Du Pradal was up to 40m away when he was struck, the analysis of the GPS units suggests that the distance was more like 50m (map 5 of exhibit 6). There are no absolute rules as to the distance between a diver and his boat. Mr Wood explained that it was usual for the diver to be between 50 and 80m, up to 100m, away from the boat, depending on the conditions (at Transcript 4-11). It was relevant that Mr Du Pradal was comfortable with his position in relation to his boat and the conditions were good for diving. On the basis of exhibit 36, I do not accept Mr Petchell’s evidence that the swell was around one and one-half metres.

The speed and path of Mr Petchell’s boat

43. The “planing” of Mr Petchell’s boat immediately before the accident was consistent with it travelling at some speed. Mr King’s evidence of the boat travelling at 13 miles per hour was based on his seeing the digital speed recording at the relevant time on Mr Petchell’s boat and I accept that as the most reliable evidence of the speed immediately before impact. That converts to 11.3 knots.

44. The next issue in relation to the speed of Mr Petchell’s boat was whether he had slowed down from 13 miles per hour before he hit Mr Du Pradal. As the Lowrance GPS unit did not record time, there is no way by reference to the GPS data to differentiate the reason why a point was recorded for the path of Mr Petchell’s boat. A point could be equally consistent with a change in direction as a change in speed or a change in both. All the GPS data showed was a slight deviation to the right at point 4-1294, point 4-1295 and point 4-1296. There are more frequent points from point 4-1297 for which there is other evidence that Mr Petchell’s boat was stopped, as that was when Mr Willsford spoke to those on Mr Petchell’s boat to confirm an emergency call had been made. The distance between point 4-1295 and point 4-1297 (according to exhibit 50) is 79m.

45. Mr Willsford was watching Mr Petchell’s boat and it did not appear to slow down before striking Mr Du Pradal. Mr Sandford recalled hearing the thud, before Mr Petchell put his boat into neutral. The fact that Mr Bartley did not even consider that the white boat had any role in the accident, because it was so far away, also supports the conclusion that Mr Petchell’s boat was still moving at some speed after the accident. The evidence of Mr Petchell that suggests that he put his boat into neutral, before it struck Mr Du Pradal, is not consistent with the limited changes recorded by the GPS unit on his boat between points 4-1294 and 4-1296 and the distance that his boat immediately travelled away from the accident location. Mr King’s evidence that he saw the diver 5 or 6m in front of the boat, after the boat had been put in neutral and stopped “swerving” is also not consistent with the limited recorded changes in direction of the boat by the GPS unit between points 4-1293 and 4-1296. Mr King must have been mistaken about the order in which the events happened, which is not surprising as he himself described these events happening in a “split second”. It is therefore more probable than not that at the time Mr Du Pradal was struck, Mr Petchell’s boat was still travelling at about 13 miles per hour.

46. On the basis of the respective estimates of Mr Petchell, Mr King and Mr Sandford as to the distance between the two groups of boats through which Mr Petchell was navigating his boat (ranging between 30 and 50m), it is more probable than not that Mr Petchell’s boat was less than 30m from an anchored boat when Mr Du Pradal was struck. This is consistent with Mr Du Pradal’s evidence he was in the vicinity of anchored boats 15 to 20m away from him which is also consistent with the distance that Mr Bartley estimated the injured diver was away from his boat when the yellow boat attempted to retrieve him.

47. In view of the proximity of Mr Petchell’s boat to other anchored boats that brought him within 30m of at least one anchored boat at the time of the accident, the speed of his boat of 13 miles per hour was in excess of that prescribed as the maximum speed under s 127(2) of the Regulation. The submission is made on behalf of the defendant that as Mr Du Pradal’s boat was not anchored and was drifting with the current, his boat is irrelevant to any consideration of s 127(2) of the Regulation. The appropriate speed for Mr Petchell’s boat was dictated by all the circumstances which included the presence of anchored boats that were fishing at the time.

Whether Mr Petchell was keeping a proper lookout

48. The Ronstan orange float used by Mr Du Pradal was a popular and common dive float in 2008. As a comparison of exhibits 12 and 13 show, the orange dive float is distinctly different in size and shape from a crab pot float. As Mr Wood explained (at Transcript 4-8), the purpose of the float is twofold – for safety to alert others that there is a diver in the area, but also to prevent the loss of the speargun (attached by line to the float) when a big fish is shot and pulls the speargun out of the diver’s hand.

49. That there could be no confusion between the purpose of the Ronstan orange float and a crab pot float was confirmed by Mr Bartley and Mr Wood. The area being traversed by Mr Petchell’s boat was not an area for crab pots. There was no reasonable basis for Mr Petchell (or his passengers) to make the mistake they did about the significance of the orange float.

50. The orange float did not need a dive flag attached for it to be recognised as a dive float. Mr Willsford’s inflatable float was of a different type to Mr Du Pradal’s float and had a flag attached, but Mr Willsford was the only diver amongst his diving companions at that time with a flag on his float. That is consistent with the evidence of Mr Randell (at Transcript 5-12) that in 2008 most dive floats did not have dive flags and the evidence of Mr Wood (at Transcript 4-8) that divers are more aware now than in 2008 about having a dive float with a flag.

51. As the orange float was visible to Mr Petchell when he was about 100 to 150m away from it, the orange float did act as a warning that a diver was in the vicinity. If Mr Petchell had not made the mistake about the significance of the orange float, he had the opportunity to change the boat’s path of travel or slow down and keep a proper lookout for the diver.

Did the Marine Orders apply to Mr Du Pradal’s boat?

52. The Marine Orders were the relevant regulations made for giving effect to the Prevention of Collisions Convention and their coverage was regulated by s 258 of the Navigation Act.  Under s 258(2A), the Marine Orders did not apply to a ship of a kind referred to in s 2(1) of the Navigation Act. A pleasure craft is one of the vessels that is specified in s 2(1) of the Navigation Act.  Mr Du Pradal’s boat was a pleasure craft for the purpose of the Navigation Act.  The requirements of rule 27 of the Marine Orders had no application to Mr Du Pradal’s boat on the day of the accident.

53. After the parties had made submissions at the conclusion of the trial, further written submissions dated 27 June 2014 were provided on behalf of Mr Du Pradal in relation to the applicability of the Marine Orders.  In response, the defendant conceded that the Marine Orders, as such, did not apply to Queensland, but were made applicable by s 126 of the Regulation, as s 258(2C) of the Navigation Act clarified that s 258(2B) was not intended to restrict the operation of a State law that relevantly gives effect to the Prevention of Collisions Convention.  Further submissions dated 18 July 2014 were made in response on behalf of Mr Du Pradal to the effect that it was too late for the defendant to rely on s 126 of the Regulation, as that was not pleaded in the defence, and there was no application to amend the pleadings. 

54. Even if the defendant could at this late stage amend his defence to rely on s 126 of the Regulation, I would not be satisfied that rule 27 of the Marine Orders was applicable.  Rule 27 applies to vessels “restricted in their ability to manoeuvre” when engaged in “diving operations”.  I note that Studdert J in Smith v Perese [2006] NSWSC 288 at [222] entertained some doubt as to what was covered by the expression “diving operations” in a case concerned with a boat which had dropped off spearfishermen.  The rule is directed to preventing collisions between ships.  The requirement under rule 27(e) for a vessel engaged in diving operations which is restricted in its ability to manoeuvre to exhibit the lights and shapes and/or the International Code Flag “A” had no relevance to Mr Du Pradal’s boat that was easily able to be manoeuvred.

Liability

55. Mr Petchell made a number of mistakes in the manner in which he drove his boat, as he approached the anchored fishing vessels. He was ignorant that he was in the vicinity of a popular dive spot. He saw the orange dive float to which Mr Du Pradal was attached at a sufficient distance to enable him to navigate a path that took him well clear of the dive float and the attached diver, but failed to do so. His slight veering of the boat to the right merely avoided colliding with the dive float but did not have regard for the diver in the vicinity of the dive float. It is not unusual for people to be in the water in the vicinity of anchored recreational vessels. Mr Petchell failed to comply with the speed limit of 6 knots when his boat was within 30m of anchored boats. It is apparent that the speed limit provided for by s 127(2) of the Regulation was common knowledge amongst persons operating boats at the time, as shown by the evidence of Mr Petchell and Mr Lack (at Transcript 3-19). It was not unreasonable for Mr Du Pradal to take into account the protection afforded by being in the water close to anchored boats in deciding where to look for fish to shoot.

56. The risk of harm to a diver in the water at a popular dive spot and in the vicinity of anchored recreational vessels was a risk of which Mr Petchell ought reasonably to have known and the risk was not insignificant. A reasonable person in Mr Petchell’s position navigating the boat in the vicinity of a popular dive spot where there were anchored fishing vessels and a commonly used dive float signalling the presence of a diver in the water would have taken precautions to avoid the risk of harm to the diver. There was an easily available course of action for Mr Petchell to take to avoid that risk of harm and that was to travel further out from the shoreline and the anchored vessels. In fact, travelling the same route on his return journey that he took on his outward journey when passing Cape Moreton would have easily avoided the risk of harm. 

57. The accident was not caused or contributed to by the distance that Mr Du Pradal’s boat was from him.

58. As for contributory negligence, Mr Du Pradal was spearfishing in a popular dive spot and attached to a commonly used dive float in the vicinity of anchored fishing vessels. Mr Du Pradal did not fail to take precautions against the risk of the harm of being struck by a boat travelling through the area. He was entitled to act on the basis that any boat would be navigated in accordance with s 127(2) and so as to avoid the dive float and the area in the vicinity of the dive float where a diver was likely to be attached to the dive float.

59. I accept Mr Willsford’s evidence that he waved his arms and tried to attract the attention of the people on Mr Petchell’s boat, even though he was not seen by them. As Mr Willsford was not supervising or responsible for Mr Du Pradal during his dive, there was no duty of care imposed on him to intervene to protect Mr Du Pradal from the acts of a stranger such as Mr Petchell. If there were such a duty of care, Mr Willsford did not breach it, as when he noticed Mr Petchell’s boat, he tried to attract the attention of Mr Petchell and his passengers. It is unreasonable to suggest that at the same time he was doing that, he should have also been trying to warn Mr Du Pradal. Whether or not there was a duty owed by Mr Willsford to Mr Du Pradal to look out for him while he was in the water, Mr Willsford did so.

60. Mr Du Pradal has succeeded in proving that the accident was caused by Mr Petchell’s breach of the duty of care owed to him. Contributory negligence cannot be established. Mr Petchell’s third party claim against Mr Willsford for an indemnity or contribution against any damages which Mr Du Pradal recovers against Mr Petchell must be dismissed, on the basis that either there was no duty of care owed by Mr Willsford to Mr Du Pradal or, if there were, there was no breach by Mr Willsford in the circumstances.

The injuries

61. Mr Du Pradal sustained comminuted fractures of the left seventh to tenth ribs and fractures of the left eleventh and twelfth ribs and associated pneumothorax, a laceration to the left of the diaphragm, bruising to the heart, injury to the right lung, internal injuries requiring a splenectomy and oversewing of the laceration to the tail of the pancreas, compound fractures to the left tibia and fibula, compound fracture to the left mid-foot and closed fracture of the left proximal femur. As a complication of these injuries, Mr Du Pradal suffered an embolic stroke on 9 August 2008 resulting in expressive dysphasia. He was left with extensive scarring to the abdomen and left lower limb as a result of the surgery.

62. Mr Du Pradal was treated by Dr Pollard when he arrived at the Royal Brisbane and Women’s Hospital. He was hypotensive on arrival. After surgery on the abdomen (during which he required 35 units of blood products), he had surgery on his leg and foot injuries, and was admitted to the intensive care unit. Dr Pollard considers that the lacerations to the left knee, the left leg (which caused the compound fractures) and the left foot (causing metatarsal fractures) were caused by the propeller.

63. Further procedures were performed on 3, 4, 7 and 12 July 2008. Mr Du Pradal had multiple sources of sepsis that required continuing anti-biotic and anti-fungal treatment with continuing infection in wounds in the left foot. He was not discharged from the intensive care unit until 18 July 2008. He had further surgery to his left foot on 18 July 2008.

64. Mr Du Pradal was admitted to inpatient rehabilitation at the Geriatric Assessment Rehabilitation Unit (GARU) on 2 September 2008. He was discharged home on 15 October 2008 in a wheelchair. He was not allowed to weight bear until the tibial fracture started to unite. He continued attending day hospital until June 2009. Mr Du Pradal required speech therapy for moderate dysphasia and mild dysarthria.

65. Mr Du Pradal started using Canadian crutches whilst still using the wheelchair and graduated to using the crutches. He graduated from the crutches to walking with the assistance of a cane.

66. Mr Du Pradal was examined by orthopaedic surgeon, Dr Gillett, on 15 October 2009, for the purpose of a medico-legal report (included in exhibit 7).

67. Dr Gillett noted that Mr Du Pradal walked with a tilted leg gait with a long left leg and walked with a stick. He stood with “a scoliotic attitude of the lumbar spine”. Dr Gillett noted the left foot is “in valgus malaligment with flattened medial arch” and the toes have “a bilateral hallux valgus deformity”.

68. Dr Gillett considered that Mr Du Pradal had reached maximum medical improvement in that the fractures were all united and his measured impairment was unlikely to change over the next 12 months. He considered his ongoing disability would impact on weight bearing and ambulation activities, so that, in general terms, Mr Du Pradal would be suitable “for a somewhat sedentary existence in life rather than a weight bearing existence”. Dr Gillett considered that Mr Du Pradal’s back symptomatology was an indirect consequence of his injuries and gait abnormality and did not result in any impairment.

69. Dr Gillett assessed the left femoral fracture as equating to a 10 per cent loss of whole person function, the left tibial fracture equated to a 2 per cent loss of whole person function, the left foot injury equated to a 7 per cent loss of whole person function and that in combination these impairments and the leg length discrepancy equate to an additional 4 per cent loss of whole person function. Dr Gillett therefore assessed Mr Du Pradal’s impairment of the left lower limb as a 21 per cent impairment of whole person function.

70. Mr Du Pradal saw orthopaedic surgeon Dr Saxby on 29 August 2011 at the request of Mr Petchell’s solicitors. Dr Saxby’s opinion in his report (exhibit 47) is that Mr Du Pradal has been left with a 20 per cent whole person impairment for all the lower limb injuries.

71. Dr Gillett and Dr Saxby conferred on 19 July 2013 in relation to their respective reports and produced a joint report dated 19 July 2013 (exhibit 24). They were in agreement that Mr Du Pradal is suitable for sedentary employment and will have difficulties associated with any standing or walking activities or carrying heavy objects. Dr Gillett was prepared to accept Dr Saxby’s examination findings (which took place at a later time) and agreed with the conclusion of a 20 per cent impairment of whole person function associated with the left lower limb. In the joint report Dr Gillett and Dr Saxby assessed the scarring as a 4 per cent impairment of whole person function, noting they would defer to a plastic surgeon. No opinion has been obtained from a plastic surgeon for the purpose of the proceeding. The photographs of Mr Du Pradal’s scarring comprise exhibit 55.

72. Neurosurgeon Dr Scott Campbell examined Mr Du Pradal at the request of his solicitors on 2 September 2009 and prepared a report of the same date (included in exhibit 7). Dr Campbell considered that Mr Du Pradal’s expressive dysphasia was caused by a small infarct of the left middle cerebral artery that occurred as a result of the stroke on 9 August 2008 that caused moderate impairment in communication and production of language skills of daily living, resulting in a 10 per cent whole person impairment. On examination of the lumbar spine, there was decreased flexion by 50 per cent and extension by 80 per cent and pain and stiffness at the extremities of these movements. There was also tenderness and guarding over the lumbar paraspinal muscles bilaterally. Dr Campbell diagnosed a chronic soft tissue musculo-ligamentous injury of the lumbar spine which he assessed as a 6 per cent whole person impairment.

73. Mr Du Pradal was examined on 9 September 2011 by neurosurgeon Dr Coyne who provided a report dated 16 November 2011 (exhibit 52). Although Dr Coyne acknowledged that Mr Du Pradal was suffering from ongoing lumbar spine symptoms (with restrictions in flexion and extension), there was no treatment that could be offered other than using analgesic medication as necessary. Despite the presence of ongoing symptoms, Dr Coyne assessed Mr Du Pradal as having 0 per cent whole person impairment for the lumbar spine injury.

74. Mr Du Pradal was still suffering from dysphasia when examined by Dr Coyne. He was finding it difficult to say the right word and occasionally used word substitution. Dr Coyne assessed him with 10 per cent permanent impairment of the whole person as a result of his cerebral speech impediment.

75. Dr Campbell and Dr Coyne prepared a joint report dated 22 July 2013 (exhibit 53). They were in agreement that Mr Du Pradal’s dysphasia as a result of the stroke resulted in 10 per cent whole person impairment. The doctors noted that the difference in their assessment of the lumbar spine injury was due to differences in observed findings at the time each doctor examined Mr Du Pradal.

76. Dr Coyne considered that a soft tissue injury to the lumbar spine would not normally restrict a person from undertaking light sedentary employment. Dr Coyne considered that Mr Du Pradal may require some assistance with landscaping and heavy home maintenance, but would be capable of most routine household tasks (exhibit 54).

77. Mr Petchell’s solicitors obtained a report from neurologist Dr Saines dated 6 August 2013 (included in exhibit 7) based on the medical reports provided by the solicitors, but without an examination of Mr Du Pradal. Dr Saines agreed with the assessment of the impairment by Dr Coyne in respect of the stroke that it resulted in a permanent impairment of 10 per cent of the whole person and the condition was stable and stationary.

78. Physician Dr Trevor Myers examined Mr Du Pradal on 11 August 2009 for the purpose of providing a medico-legal report dated 20 August 2009 (included in exhibit 7). Dr Myers noted that Mr Du Pradal responded well to the treatment for the severe chest trauma, but has been left with some pain in his rib cage, some impairment of thoracic movement and some loss of pulmonary function that was likely to remain permanently. Dr Myers assessed the injury to the chest as consistent with a 10 per cent whole person impairment.

79. Dr Myers noted that although Mr Du Pradal suffered severe closed abdominal trauma resulting in life threatening injuries culminating in the splenectomy followed by bleeding problems and extensive further surgery, he responded well to the treatment. He has been left with extensive abdominal scarring with some impairment of immunity following the splenectomy, so that he will require regular pneumococcal and other vaccines for the remainder of his life. The cost for injections to counter loss of immunity is $100 per annum (exhibit 44). He faces the risk of developing bowel adhesions and possible obstructions as a remote consequence of the abdominal trauma, although the probability of that cannot be quantified. It appears that Dr Myers only examined Mr Du Pradal on the one occasion about 14 months after the incident. His prediction that Mr Du Pradal’s disordered gait would require him to walk with the permanent assistance of a can has not happened.

80. Mr Du Pradal was totally dependent on Mrs Du Pradal when he was in the wheelchair. He continued to use the wheelchair when he started on crutches in February 2009.

81. Mr Du Pradal found that he could do very little for himself when on crutches and Mrs Du Pradal still had to do everything for him.

82. When he graduated to walking with the assistance of a cane in July 2009, Mr Du Pradal could still do virtually nothing around the house. When he was using the cane, he was able to get into the car and resume driving (at Transcript 2-27). At first he suffered bad pain after being in the car for half an hour.

83. Before the accident Mr and Mrs Pradal shared the household chores, except the cooking of the evening meal which Mr Du Pradal did. Mr and Mrs Du Pradal’s house is situated on seven and a half acres. Before the accident Mr Pradal did the heavy chores in the yard including mowing the lawn, blowing the leaves from the patios, cleaning the gutters, cleaning the pool and trimming branches. Whilst using the cane, he got back to mowing the lawn in the immediate vicinity of the house using a ride-on mower (at Transcript 1-44). Prior to the accident, Mr Du Pradal cleaned the two vehicles in the household weekly. He has been unable to resume this task.

84. Mrs Du Pradal considers that by the end of 2010, Mr De Pradal had stabilised and he had reached his maximum improvement (at Transcript 2-90).

85. Mr Du Pradal still suffers pain in his hip, because one leg is longer than the other, so bending over hurts greatly. He describes his “whole hip is out of sync” (at Transcript 1-45). He has pain in his legs the whole time (at Transcript 1-47).

86. He cannot carry a shopping bag with uneven weight and can only do very light shopping.

87. He has not been able to return to diving. He can only walk for a short spell of 20 minutes. He tires easily. He can sit for an hour to an hour and a half. The only problem he now has with dressing is putting a sock on his left foot and tying the shoelace on the left shoe. He is unable to cut his toenails.

88. Mr Du Pradal takes Paracetamol Forte twice or three times daily for months on end to treat his pain. He estimates this costs $40 per month.

General damages

89. The court is required by s 61 of the CLA to assess an injury scale value (ISV) on a scale running from 0 to 100 under the Civil Liability Regulation 2003 (CLR).  (The parties are agreed that the relevant version of the CLR for the purpose of this proceeding is Reprint No 1A.)  The rules for assessing the ISV are set out in s 6 of the CLR and schedules 3 and 4 to the CLR.  As there are multiple injuries, s 3 and s 4 of schedule 3 to the CLR are applicable.  McMeekin J in Allwood v Wilson & Anor [2011] QSC 180 at [20]-[24] explained how the CLR applies to multiple injuries. 

90. The parties differ as to which of Mr Du Pradal’s injuries is the dominant injury for the purpose of applying schedule 3 to the CLR. 

91. The definition of “dominant injury” in schedule 7 to the CLR is:

“dominant injury, of multiple injuries, means—

(a)if the highest range for 2 or more of the injuries of the multiple injuries is the same—the injury of those injuries selected as the dominant injury by a court assessing an ISV; or

(b)otherwise—the injury of the multiple injuries having the

highest range.

Note—

The selection as a dominant injury of a particular injury from 2 or more

injuries having the same highest range will not affect the outcome of the

court’s assessment of an ISV for the multiple injuries.”

92. It is submitted on behalf of Mr Du Pradal that he suffered the following injuries itemised in schedule 4 and the dominant injury is item 79 (the injury to the pancreas):

(a)Item 8 – minor brain injury – ISV 6 to 20;

(b)Item 38 – moderate chest injury – ISV 11 to 20;

(c)Item 66 – minor injury to kidneys or ureters – ISV 0 to 10;

(d)Item 74 – minor bowel injury – ISV 3 to 6;

(e)Item 79 – injuries to the pancreas – ISV 10 to 35;

(f)Item 81 – injury to the spleen or uncomplicated loss of spleen – ISV 0 to 7;

(g)Item 93 – moderate thoracic or lumbar spine injury – soft tissue injury – ISV 5 to 10;

(h)Item 134 – serious lower limb injury, other than an injury mentioned in Division 10 or Divisions 12 o 15 – ISV 21 to 30;

(i)Item 148 – serious foot injury – ISV 9 to 12;

(j)Item 155.3 – moderate scarring to a part of the body other than the face – ISV 4 to 8.

93. On the basis that item 79 has an ISV range of 10 to 35 and that should be selected as the dominant injury, in accordance with the definition of “dominant injury”, it is then submitted on behalf of Mr Du Pradal that as he sustained various and multiple significant injuries to diverse parts of his body an uplift factor of 100 per cent should be applied to an ISV of 35. An ISV of 70 results in general damages of $150,800.

94. The defendant submits that the dominant injury is the lower leg injury and the appropriate item is item 135 (moderate lower limb injury) with an ISV range of 11 to 20 where an ISV is at the top of the range will be appropriate, if there is whole person impairment for the injury of 15 per cent. The defendant’s submissions then allow for an uplift of 25 per cent to an ISV of 20, resulting in an ISV of 25 which equates to $35,000.

95. Section 4 of schedule 3 to the CLR allows the court to apply an uplift factor to the maximum dominant ISV, where the court considers the level of adverse impact of multiple injuries on the injured person is so severe that the maximum dominant ISV is inadequate to reflect the level of impact.  Under s 4(3)(a), the ISV for the multiple injuries must not be more than 100.  Under s 4(3)(b), the ISV for the multiple injuries “should rarely be more than 25% higher than the maximum dominant ISV”.  The court is required under s 4(4) of schedule 3 to give detailed written reasons for the increase, if the increase is more than 25 per cent of the maximum dominant ISV.

96. Under s 8 of schedule 3 to the CLR, in assessing an ISV, a court must have regard to the provisions set out in schedule 4 relevant to using schedule 4 to assess an ISV for particular injuries to the extent that those provisions are relevant in a particular case.  That is expressed not to limit the court, however, from having regard to other factors it considers are relevant in assessing an ISV.  Section 9 of schedule 3 specifically provides that a court, in assessing an ISV, may have regard to other matters to the extent that they are relevant in a particular case.  Examples are given including the injured person’s age, degree of insight, life expectancy, pain, suffering and loss of amenities of life.  A specific example is given in respect of assessing an ISV for multiple injuries that regard may be given to the range for, and other provisions of schedule 4 in relation to, an injury other than the dominant injury of the multiple injuries.  It is expressly noted in s 10 of schedule 3 that the extent of whole person impairment is an important consideration, but not the only consideration affecting the assessment of an ISV.       

97. The first issue is identifying the dominant injury. Item 79 is for loss, or effective loss of the pancreas. That does not describe the injury to Mr Du Pradal’s pancreas which required oversewing of a laceration. The impairment of immunity suffered by Mr Du Pradal is related to the loss of his spleen and not the injury to his pancreas. I do not consider that Mr Du Pradal has sustained an injury to which item 79 applies.

98. The injury to Mr Du Pradal’s left lower limb caused him great suffering and left him with a 20 per cent whole person impairment with an additional 4 per cent whole person impairment for scarring (where most of the scarring is to the left lower limb). Even though the provisions for item 134 in the CLR suggest a lower limb injury causing whole person impairment of 30 per cent is an example of a serious lower limb injury, the descriptions otherwise for serious lower limb injury are more apt to Mr Du Pradal’s injuries than that of item 135 for moderate lower limb injury.

99. Before considering the ISV for item 134, I will look at the ISV ranges for the other injuries. Item 8 (minor brain injury) with an ISV range of 6 to 20 is appropriate for the stroke that has left Mr Du Pradal with a 10 per cent whole person impairment due to dysphasia. In the light of Dr Myers’ assessment of the injury to the chest as consistent with a 10 per cent whole person impairment, item 38 (moderate chest injury) with an ISV range of 11 to 20 is appropriate for that injury. Item 81 (uncomplicated loss of spleen) with an ISV range of 0 to 7 is appropriate for the loss of Mr Du Pradal’s spleen. Dr Gillett and Dr Saxby assessed the lumbar spine impairment as 0 per cent. In the light of Dr Gillett’s opinion that the lumbar spine injury was a consequence of the leg injury which makes sense in the circumstances, I find the conclusion in the joint report (exhibit 24) more compelling than the opinion of those doctors who assessed a whole person impairment greater than 0 per cent for the lumbar spine injury. Item 94 with an ISV range from 0 to 4 applies to the lumbar spine injury. Dr Gillett and Dr Saxby included the left foot injury in the assessment of the whole person impairment due to injuries to the left lower limb. Part 7 of schedule 4 concerning scarring to parts of the body other than the face usually applies to injury involving skeletal damage only if the skeletal damage is minor, as many of the physical injuries mentioned in schedule 4 involve some scarring and this has been taken into account in fixing the range of ISVs for these injuries. As the skeletal damage suffered by Mr Du Pradal to his left lower limb was significant, I have taken into account the opinion of Dr Gillett and Dr Saxby on the additional whole person impairment caused by the scarring of 4 per cent, in deciding that item 134 is the appropriate item for Mr Du Pradal’s lower limb injury and not item 135.

100. Item 134 has an ISV range of 21 to 30. I would not assess the lower limb injury by itself as having an ISV of 30. Because of the other injuries which themselves would have been assessed for ISVs, it is appropriate to assess the lower limb injury as having an ISV of 30.

101. The next issue is whether the level of adverse impact of multiple injuries on Mr Du Pradal is so severe that the maximum ISV in the range for the dominant injury is inadequate to reflect the level of impact.

102. Mr Rolls of counsel on behalf of Mr Du Pradal submits that an uplift greater than 25 per cent ought to be made in this case on the basis that, having regard to his age and extraordinary fitness and vitality prior to the accident, upon which a significant impact has been made due to the pain, suffering and loss of amenities of life that have resulted from the variety and severity of the injuries he sustained. Ultimately it was submitted that an uplift of 100 per cent ought to be applied. Reference was made to Clement v Backo [2006] QSC 129 where Dutney J applied a 100 per cent uplift and Munzer v Johnston [2008] QSC 162 where McMeekin J applied a 75 per cent uplift.

103. Clement can be distinguished on the facts.  The application of the CLR did not result in an ISV that reflected the effect of the combination of injuries on Mr Clement.  Mr Clement had three equally serious injuries, each assessed as constituting the whole person impairment of between 5 per cent and 6 per cent, but the dominant injury was only one of those injuries where the maximum ISV was 10.  The provisions for the item stated an ISV of 10 was appropriate for a whole person impairment of 8 per cent caused by soft tissue damage which was much less than the plaintiff’s whole person impairment of 15 per cent to 18 per cent.  Dutney J determined that the appropriate ISV was 20 which meant the application of an uplift of 100 per cent.  Munzer can also be distinguished on the facts of that case.  Ms Munzer had suffered a combination of severe injuries with substantial impact that would continue for the next 40 years.  An ISV of 24 was assessed for each injury to the left and right knee which was the maximum for that item and an ISV of 20 for her elbow injury for which the maximum ISV was 25.  The item for the elbow injury had the highest range and was therefore the dominant injury, but (unlike this matter) there was no room left in that range to accommodate the multiple injuries.  

104. Some account has been taken of the effect of the multiple injuries on Mr Du Pradal in selecting the maximum ISV of 30 in the range for item 134. Because Mr Du Pradal has been affected in such different ways by his injuries such as the dysphasia and the residual chest disabilities, in addition to the whole person impairment in combination for the lower limb injury and scarring of 25 per cent as well as the other lesser injuries, I am satisfied that an ISV of 30 is inadequate to reflect the level of impact of the multiple injuries on Mr Du Pradal. Mr Du Pradal’s age is relevant. I consider that an uplift of 33.33 per cent should be applied to the ISV of 30 making an ISV of 40 and that will adequately reflect the adverse impact of Mr Du Pradal’s multiple injuries. That results in general damages of $68,000.

Special damages

105. Mr Du Pradal’s claim for special damages in the sum of $119,759 is not in issue. That includes a refund to the Royal Brisbane and Women’s Hospital of $105,876.82 and a refund to the AGL Action Rescue Helicopter of $4,950. The balance of the special damages of $8,752 for miscellaneous and pharmaceutical expenses attracts interest under s 60(2) and s 60(3) of the CLA. When the parties made their submissions at the conclusion of the trial, it was submitted on behalf of Mr Du Pradal that interest under those provisions of the CLA was 2.26 per cent.  The defendant’s submissions used interest of 2.065 per cent.  The appropriate rate under s 60(3) of the CLA must be selected at the beginning of the quarter in which the award of interest is made.  On that basis the appropriate interest rate is 1.56 per cent.  I calculate the interest on the special damages for a period of six years four months at this interest rate to be $865. 

Diminution in earning capacity

106. The business of the second plaintiff is the design, manufacture and retail sale of women’s fashion clothing. Mr and Mrs Du Pradal are the shareholders and directors of the second plaintiff. Mrs Du Pradal is the designer and the face of the business, but prior to the accident Mr Du Pradal undertook the administration and management of the business.

107. It is not in issue that damages for past and future economic loss represent diminution in earning capacity that is productive of financial loss: Medlin v State Government Insurance Commission (1995) 182 CLR 1, 3 and 16.   

108. Mr Du Pradal qualified as an architect overseas and when he immigrated to Australia in 1986 he established an architectural practice.  Mrs Du Pradal’s designer label was established by Mr and Mrs Du Pradal in 1988.  From the early 1990s Mr Du Pradal took over the general administration and management of the business. 

109. At the time of the accident the business had boutiques in the City and in Milton and Mr and Mrs Du Pradal had entered into a contract to purchase a design studio in Milton.  The purchase of the studio was completed in August 2008.  The studio then had to be fitted out for the second plaintiff’s manufacturing operations and the made-to-measure service.    

110. In respect of the financial side of business, prior to the accident Mr Du Pradal would handle all accounts, oversee stock, order materials and transport supplies and stock to and from the various business premises.

111. If Mr Du Pradal had not been injured his expectation was to continue working until Mrs Du Pradal (who is 10 years younger than him) was ready to retire.

112. After the accident, Mr Du Pradal was unable to work in the business. When he resumed driving, he could transport stock. When he did resume working, he found he tired and continues to tire very easily, usually returning home after being at work for a couple of hours. He can only do minor duties, such as collecting the post, transporting stock to the shops and diarizing the accounts, and usually does not work on more than four days per week.

113. Mr Du Pradal’s tax returns for the years ended 30 June 2006, 2007 and 2008 showed he received management fees of $30,000 gross per annum from the second plaintiff. On the basis that results in a net amount of $500 per week, Mr Du Pradal claims an ongoing economic loss of $500 per week at least until Mrs Du Pradal’s 65^th birthday.  It is submitted on behalf of Mr Du Pradal that although Mr Du Pradal has endeavoured to return to work and to do small administrative tasks, he is precluded from returning to work on any substantial basis due to the combined effects of his orthopaedic and neurological disabilities and should be found to be commercially unemployable. 

114. It is submitted on behalf of the defendant that Mr Du Pradal’s income has never been dependent upon the hours of work undertaken by him, as his income has been the same as the income of Mrs Du Pradal, with the exception of the year ended 30 June 2009. They were both paid the same gross wages in each of the years ended 30 June 2006, 2007 and 2008. For the years ended 30 June 2010, 2011 and 2012, Mr and Mrs Du Pradal each received the same gross income which was made up of dividends from the second plaintiff and rent and neither were paid wages. It appears that Mrs Du Pradal received $25,000 gross in wages for the year ended 30 June 2009, when no wages were paid by the second plaintiff to Mr Du Pradal. The defendant therefore submits that before the accident Mr Du Pradal’s wages were dependent on profit, so it should be assumed that if he had not been injured, he would have shared the sum of $25,000 paid by the business to Mrs Du Pradal for the year ended 30 June 2009, so that his loss is $12,136 net. On the basis that no wages were paid by the second plaintiff, even to Mrs Du Pradal, in the following years, it is submitted by the defendant that Mr Du Pradal would not have received wages for those years had he not been injured and therefore has not suffered any loss. The defendant relies on the analysis of the second plaintiff’s accounts by the expert accountant Mr Flynn that the reduction in salaries for Mr and Mrs Du Pradal after the accident coincided with the increase in rent paid to them for the Milton retail premises and the Milton studio.  The evidence does not warrant any conclusion that the rent paid for the Milton retail premises and studio was other than a market rent.  

115. The problem with the approach of the defendant to the assessment of damages for diminution in earning capacity is that it is predicated on the basis that his capacity to receive income depended solely on the second plaintiff’s profits. The approach of the defendant penalises Mr Du Pradal in assessing his economic loss for the fact that Mrs Du Pradal was also kept away from the second plaintiff’s business when caring for Mr Du Pradal.

116. Mr Du Pradal was performing an administrative role in the second plaintiff’s business before he was injured for which he was being paid relatively modestly, but at the same rate in the three years preceding the accident. He seeks damages for his diminution in earning capacity only by reference to that wage.

117. The medical evidence supports the contention that there has been a significant diminution in Mr Du Pradal’s earning capacity since the accident. Dr Campbell considered that if Mr Du Pradal could sit for periods of one to one-half hours, he should be able to undertake a sedentary job doing administrative and desk work for 15 to 20 hours per week (at Transcript 1-56). Dr Gillett and Dr Saxby in their joint report (exhibit 24) considered that Mr Du Pradal would not return to his previous occupations, but confirmed his suitability for sedentary employment with some restrictions. Dr Myers expressed the opinion in his report that Mr Du Pradal “will find great difficulty working in his previous occupations”. Dr Myers did not, however, have the benefit of updated information on what Mr Du Pradal has managed to do by way of making some small contribution to the second plaintiff’s business, although significantly restricted in his work activities compared with what he undertook before the accident.

118. In view of Mr Du Pradal’s determination to return to the workplace and that he has achieved doing so by modifying his activities, I cannot accept the submission that he is commercially unemployable. His diminution in earning capacity is nonetheless significant. Having regard to the medical evidence and the significant reduction in hours that he has worked, I would assess that diminution at 80 per cent of his pre-accident capacity. Approaching the assessment this way, the calculation is not affected by the fact that the second plaintiff has chosen not to pay Mr Du Pradal wages for the reduced contribution he makes to the business. I therefore assess past economic loss on the basis of the full $500 net per week until 31 December 2010 (coinciding with the time when his injuries had somewhat stabilised) and at $400 net per week from 1 January 2011 until the date of judgment. That makes 130 weeks at $500 per week which is $65,000 to which must be added another $79,200 (198 weeks from 1 January 2011 to the date of judgment at $400 net per week). Interest on past economic loss of $144,200 calculated under s 60 (2) and s 60(3) of the CLA at 1.56 per cent for 6 years 4 months is $14,247. 

119. Having regard to his age of almost 65 years old when he was injured, Mr Du Pradal’s expressed intention that but for the accident he would have continued working for another 10 years until Mrs Du Pradal retired was aspirational, but not a sound basis for calculating future diminution in earning capacity. Allowing for his previous good health and work pattern and that the past economic loss allows for him to have continued working until the age of 71 years, I consider that future diminution in earning capacity should be limited to another year at $400 net per week which amounts to $20,360. That does not warrant any further discounting.

Care

120. The assessment of damages for gratuitous services is regulated by s 59 of the CLA.

121. The claim made by Mr Du Pradal for damages for care was pleaded in these terms in the statement of claim:

“… the first plaintiff … has a need for domestic, nursing care and assistance and such a need will continue for the remainder of the first plaintiff’s life. The amount of such care and assistance is as set out at page 22 of the report of Ms Helen Coles Occupational Therapist, dated 22 March 2013 and pages 10 to 11 of the updated report of Ms Coles dated 21 May 2014. Particulars of the amount claimed will be provided prior to trial.”

122. Although Mr Du Pradal’s claim for care is based on the level of care described in Ms Coles’ assessment, schedules of care (exhibit 29) were prepared by Mrs Du Pradal to summarise the care provided by her at each stage of Mr Du Pradal’s recovery and from October 2010 onwards. I ruled during the trial at Transcript 2-89) that Mr Du Pradal’s claim was limited to the care and assistance described in Ms Coles’ reports.

123. Ms Coles did two assessments in February 2013 and May 2014 that resulted in her reports that are included in exhibit 7. Ms Coles’ assessment is based on visits to Mr and Mrs Du Pradal’s home and business premises on the first occasion, her observations of Mr Du Pradal when moving, standing, sitting, squatting and kneeling, and her interviews with Mr and Mrs Du Pradal on both occasions. Ms Coles’ assessment has to be considered in the light of the evidence given by Mr and Mrs Du Pradal at the trial.

124. It is submitted on behalf of the defendant that Mr Du Pradal’s evidence was so vague, it could not support an allowance of care. This is unfair to Mr Du Pradal when his requirement for care was extreme in the early stages as he transitioned from hospital to home, whilst he was in the wheelchair and then commenced mobilising with crutches. There was not too much detail required, other than his observation that he could do nothing for himself. The defendant’s submission overlooks that Mrs Du Pradal was very eloquent in the course of her evidence about the extent of Mr Du Pradal’s need for care at each stage and the provision of that care by Mrs Du Pradal and for three months after his discharge from hospital also by Mrs Du Pradal’s mother. There is also relevant medical evidence.

125. Although the schedules in exhibit 9 were largely done by Mrs Du Pradal in the weeks leading up to the trial, I have no difficulty in accepting that she had a clear recollection of the milestones when Mr Du Pradal’s requirements reduced and the schedules, subject to a couple of exceptions which I will identify, give a generally accurate indication of the type of care that Mr Du Pradal required and was given.

126. The schedules are divided into the following time periods:

(a)home visits on the four weekends before discharge from hospital on 15 October 2008;

(b)15 October 2008 to 15 February 2009 (when Mr Du Pradal was in the wheelchair);

(c)15 February 2009 to 15 October 2009 (when Mr Du Pradal was mobilising on crutches and then using the cane);

(d)15 October 2009 to 15 October 2010 (during which Mr Du Pradal continued to recover);

(e)15 October 2010 onwards (when the injuries had stabilised).

127. As it is the commercial cost of the requisite care that is used for assessing the damages, relevant wage rates for the various services were provided by an expert in this area Ms Susan De Campo (exhibit 9). The defendant submits that the hourly rates referred to in Ms De Campo’s report with respect to personal care are excessive, as most persons paid under the award have a Certificate IV in disability and aged care, or many years experience in personal care. It is submitted that there is no evidence in relation to a reasonable award for personal care relative to the needs of Mr Du Pradal. I accept that the rates in Ms De Campo’s report are relevant for calculating the commercial cost of providing the care that Mr Du Pradal required and it is appropriate to use those award rates.

128. One area where Ms Coles’ assessment of hours exceeded what Mrs Du Pradal recorded was for the weekend care. Ms Coles allowed 171 hours which reflected that Mr Du Pradal was still in need of the equivalent of hospital type care and Mrs Du Pradal identified 109 hours of personal care and domestic assistance provided during the weekends of home visits. Mrs Du Pradal explained that Mr Du Pradal slept for much of the time. I therefore accept that the evidence shows a need for personal and domestic care for Mr Du Pradal during that period of 109 hours that was provided.

129. The eight hours per day for four months after discharge assessed by Ms Coles is maintainable, having regard to Mrs Du Pradal’s schedule and the personal care that Mr Du Pradal required in connection with getting in and out of bed, bathing, toileting, cognitive exercises, physical exercise, massage and medication, and transporting him to and from hospital.

130. For the next eight months (between February and October 2009) Ms Coles’ assessment is that Mr Du Pradal required four hours personal care reducing to two hours per day. The calculation has been done on the basis of three hours per day during that period is not unreasonable in the light of Mr Du Pradal’s needs, as he mobilised and his recollection that he could still do virtually nothing around the house whilst on crutches.

131. For the next year Ms Coles’ assessment for personal care was for two hours reducing to one hour per day which again was is not unreasonable in the light of Mrs Du Pradal’s evidence. With respect to the ongoing personal care from October 2010, Mr Du Pradal only needed limited assistance in putting a sock on his left foot, tying his shoelace and cutting his toenails. I accept the defendant’s submission that Ms Coles’ allowance of three to four hours per week is excessive. It appears that Ms Coles allowed for Mrs Du Pradal’s drying Mr Du Pradal’s feet, but that does not accord with Mr Du Pradal’s evidence. I will therefore allow two hours per week personal care for the period from October 2010 until the date of judgment. The fact that I find that a couple of Ms Coles’ allowances are greater than what was required relates to the evidence that was adduced at the trial and does not suggest any general unreliability otherwise about Ms Coles’ assessment.

132. Ms Coles assessed the domestic assistance that Mrs Du Pradal provided as two hours per day for six months, one and a half hours per day for six months, one to one and a half hours per day for 12 months and no less than one hour per day (or seven hours per week equivalent) ongoing. In light of the assumption by Mrs Du Pradal of the preparation of all the meals in the first six months and then the evening meal thereafter and doing the laundry, this assessment is reasonable.

133. Ms Coles has acted on different information about mowing of the yard than Mr Du Pradal gave in evidence. Ms Coles reports that Mr Du Pradal returned to mowing about 12 months prior to her interview in February 2013 (ie February 2012), when Mr Du Pradal gave evidence that he could resume mowing on the ride-on mower when he could walk using the cane for assistance (in the latter part of 2009). Ms Cole estimates that Mr Du Pradal was working three hours per week in the garden before the accident and Mrs Du Pradal assumed that role. I will therefore allow the provision of care and assistance for garden maintenance at three hours per week for one year from 15 October 2008 and for the next year at two hours per week. Although Ms Cole is of the opinion that ongoing assistance required for the garden has been about two to two and a half hours per week, that does not accord with Mr Du Pradal’s evidence. He appears to have been able to resume most tasks in the garden, although it takes him longer. I will therefore allow for care and assistance ongoing at one hour per week. The threshold requirement under s 59 of the CLA of at least 6 hours care per week for six months has been easily met.  The summary of the assessment of care is:

134. That makes a total amount for damages for care and assistance of $138,321. Interest assessed at common law at 2 per cent from the date of the accident to the date of judgment amounts to $17,521.

135. Mr Du Pradal’s ongoing needs for the purpose of assessing damages for future care should be calculated on the same basis I have used for calculating care in the period immediately preceding the date of judgment which is at two hours of personal care per week at $26.80 per hour, seven hours of domestic assistance per week at $26.80 per hour and one hour per week of garden maintenance at $40 per hour. This makes a total of $281.12 per week. That need for future care, discounted by 10 per cent, produces damages for future care of $146,618.

Future treatment

136. Mr Du Pradal will be incurring expenses for paracetamol of $40 per month for the rest of his life for pain relief and annual injections to increase his immunity at a cost of $100 per year for the rest of his life. On the basis he has a life expectancy of 15.84 years and using the 5 per cent tables for $11.15 per week, that results in expenses for future treatment of $6,461. I will apply a discount of 15 per cent, as submitted on behalf of Mr Pradal, which gives an amount of $5,492 for this head of damages.

Summary of damages for Mr Du Pradal

137. The following table sets out my assessment of damages for Mr Du Pradal:

The second plaintiff’s claim

138. The second plaintiff claims it was financially unable to pay replacement labour for the tasks that had been undertaken by Mr Du Pradal in the business prior to the accident and became less profitable due to Mrs Du Pradal undertaking the duties formerly undertaken by Mr Du Pradal.

139. The second plaintiff’s claim is for damages for the action per quod servitium amisit (for loss of services) which cause of action has been confirmed by the High Court in Barclay v Penberthy (2012) 246 CLR 258 at [35], [40], [101] and [155] as remaining part of the common law of Australia.

140. The second plaintiff did not employ a substitute employee for Mr Du Pradal, but ultimately the submission was made that the value of the lost services of Mr Du Pradal was the notional cost of replacement labour and the evidence of Mrs Du Pradal and Mr Flynn demonstrated that the cost of replacement labour would have been approximately $70,000 per annum. On the basis that the second plaintiff saved the management fees paid previously to Mr Du Pradal of $30,000 per annum, the second plaintiff claims $40,000 per annum for two years plus a further allowance of $7,000 for the extra cost incurred in fitting out the Milton studio.

141. This is opposed by the defendant on the basis that the claim by the second plaintiff as pleaded was for loss of net profits which is not the measure of damages in an action for loss of an employee’s services and which is not what is now claimed in submissions by the second plaintiff.

142. The issue as to what is the appropriate measure of damages in an action for loss of an employee’s services was considered in Barclay by the members of the court, except for Heydon J. The joint judgment of French CJ and Gummow, Hayne, Crennan and Bell JJ accepted at [57] that the basis measure of damages “should be the market value of the services, which will generally be calculated by the price of a substitute less the wages which the master is no longer required to pay to the injured servant”.  It was noted at [58] that “like any plaintiff the employer is obliged to take reasonable steps to mitigate the loss occasioned by the defendant’s interference with the provision of services by the injured employee”.  Kiefel J also favoured at [164] confining damages for the action per quod servitium amisit to the cost of substitute labour, noting: 

“To permit recovery on any wider basis, including for profits lost, would be to transform an exceptional remedy for a particular type of loss into a substantial exception to the general principles which have developed concerning recovery of economic loss in tort.  In terms of the coherence of the law, that would be undesirable.”  

143. On the first day of the trial, Mr Kimmins of counsel for the defendant made it clear that the defendant was relying on Barclay to assert the second plaintiff’s pleaded claim for loss of profits was not the correct measure of damages for the cause of action.  The second plaintiff did not seek to amend its statement of claim to reflect its ultimate submission for damages calculated on a notional cost of replacement labour, presumably because such an amendment would have been futile as the notional cost of replacement labour is not the appropriate measure of damages.  The second plaintiff cannot succeed as a matter of law on the basis of its pleaded claim for damages for lost profits as a result of the loss of the services of Mr Du Pradal and cannot succeed for a claim for the cost of replacement labour which it did not incur (and has not pleaded).  The second plaintiff’s claim must be dismissed.

Orders

144. I will make the following orders:

1. Judgment for the first plaintiff against the defendant in the sum of $675,203.

2. The second plaintiff’s claim against the defendant is dismissed.

3. The defendant’s claim against the third party is dismissed.

4. Adjourn the issue of the costs of the proceeding and the third party proceeding to a date to be fixed.

145. I will give the parties an opportunity to consider these reasons, before dealing with the issue of costs.