HOBART, 14-28 February, 11, 21-30 March, 11-21 April, 14-17 June 1994

Counsel for plaintiff (1st, 2d actions): D Gunson, R Webster

Solicitors for plaintiff (1st, 2d actions): Gunson, Pickard and Hann

Counsel for defendant (1st, 2d actions): H J Kable QC, D Docking

Solicitors for defendant (1st, 2d actions): Abetz Curtis and Docking

Barry Burbury v Sievers (action no 1129/1987): - That judgment be entered for the plaintiff against the defendant in the sum of $268,370.41.

Sue Anne Burbury v Burbury and Sievers (action no 1204/1987): - That the plaintiff's damages be assessed at $352,614.90 and that final judgment be entered for the plaintiff against the first named defendant accordingly.

WRIGHT J These two actions, which were heard together, arose out of an accident on the Huon Highway at Glendevie soon after 9am on 23 September 1986. The plaintiffs, who are husband and wife, were partners in a commercial fishing business at the time. A Mazda 929 sedan, being driven by Mr Burbury, left the road and overturned on Glendevie Hill. It did not actually collide with another vehicle but it passed close by a Magna sedan being driven by Robert Alexander Sievers which was travelling in the opposite direction towards Dover. Sue Anne Burbury was a front seat passenger in the vehicle being driven by her husband.

2. It will be noted that the male plaintiff in the first action is also named as a defendant in the second action instituted by his wife. In the circumstances it is not surprising that Mrs Burbury's solicitors joined both drivers as defendants in her action for damages despite the fact that both she and her husband claim that the defendant Sievers caused the accident by driving partially on the wrong side of the road, thereby forcing Barry Burbury to steer to the left off the road in an evasive manoeuvre, causing him to lose control of the vehicle which then rolled over, thereby causing injury to his spine and his wife's neck. However, liability is no longer a live issue in Sue Anne Burbury's action because an interlocutory judgment for damages to be assessed was entered in her favour by consent on 2 November 1987. The judgment was in terms that she recover damages against the first named defendant (her husband) but that she recover "nothing against the second named defendant". It appears that judgment in these terms was entered without Mrs Burbury's specific instructions and it appears quite likely that the solicitors who were then acting on her behalf failed to advert to the detrimental effect that a judgment in these terms may have upon her ability to recover the value of services allegedly rendered to her by her husband under the Griffiths v Kerkemeyer principle. Nonetheless, the judgment stands in the terms in which it was entered and, consequently, I am only required to assess damages in Mrs Burbury's action. As a further consequence of this state of affairs, it seemed to me and also to counsel, that there was no conflict and no potential conflict of interest in Mrs Burbury and her husband being represented by the same firm of solicitors and by the same team of counsel during these proceedings. The assessment of damages in Mrs Burbury's case and the trial of Mr Burbury's action, together occupied some 33 sitting days. A good deal of this time was spent upon questions and issues relating to damages and the credit of both plaintiffs was placed under close scrutiny.

3. In many respects the male plaintiff was not a completely satisfactory witness in that he was unable to recall the chronology of some quite important events and there were several inconsistencies and internal contradictions in his evidence. However, he was in the witness box over a period of several days and was subjected to a very searching cross-examination. These factors may tend to explain his problem to some extent. Furthermore, I can understand that even a moderate level of chronic pain since 1986 could tend to blur the distinction between events and cause poor memory retention. Mr Burbury said that this was a factor which has affected his ability to recall some matters with precision. On the other hand I am left with the abiding impression that he was not as uncomprehending as he claimed on several occasions and that overall he was not completely reliable or frank. My assessment of his evidence has proceeded bearing these factors in mind.

4. The female plaintiff gave evidence before her husband and he remained in court during the greater part of that time. She was obviously tense and often defensive. I make specific reference to matters of credit affecting her testimony in what follows hereafter.

The allegations of negligence against Mr Sievers were extensive. They included allegations that he drove at an excessive speed, that he failed to keep a proper lookout, and that he drove on the incorrect side of the road. Reliance was also placed upon a number of alleged breaches of the Traffic (General and Local) Regulations 1956. In essence however, the plaintiff's case was that as Sievers approached Dover travelling uphill towards a right hand corner, he allowed his vehicle to travel with the driver's side wheels encroaching between 18 inches and 3 feet into the north bound lane and thus, as the road is fairly narrow at that point, he effectively forced the plaintiff's vehicle to leave the road to avoid a head on collision.

6. The defence case as pleaded alleged that the plaintiff was driving too fast, that he failed to "consider or adequately consider the then prevailing road and weather conditions", that he failed to keep a proper lookout and that he failed to keep his vehicle under control. The defence claimed that Mr Burbury lost control of his vehicle due to either excessive speed or the defective and slippery road surface or a combination of both of these factors and that the presence of Mr Sievers' vehicle on the roadway had no causative bearing upon the accident.

7. I visited the scene of the accident with counsel at the beginning of the trial and although this was a useful exercise enabling me to appreciate the topography generally and to view the corner near which the accident happened from both the uphill and downhill side, it became apparent as the case progressed that several important features had changed significantly since September 1986, not the least of which was that the road had been completely resurfaced in the recent past. Fortunately, however, an aerial photograph taken in 1977 and a series of photographs taken by Mr H N Robertson, a loss assessor, on 14 August 1987, enabled me to form a clear picture of the nature and condition of the road and in particular the road surface at the time of the accident. A rough sketch plan prepared by junior counsel was also of some limited assistance.

8. Evidence was given by each of the three parties to these proceedings and also by two passengers in, and the driver of, an HQ Holden. This vehicle was travelling closely behind Mr Sievers' vehicle as he drove up the Glendevie Hill and had been travelling behind him in this way for some considerable distance before that. Evidence was also given by a police officer, Constable Whitbread, who attended the scene and interviewed some of the witnesses. Mr P J Doyle, who has lived at Glendevie for 63 years and who is very familiar with the relevant piece of road and adjacent structures, also gave evidence. As may be expected when the trial takes place some 7 and a half years after the event, there was a substantial degree of conflict between some of the witnesses and memories were not as clear as they might have been. I am also satisfied that much of what I was told was the product of reconstruction, rather than unaided memory. In the absence of debris from a collision, skid marks or distinct areas of damage caused by a vehicle to vehicle impact, it is difficult to reach a firm conclusion as to the relative positions of vehicles and their positions on the road surface in a "near miss" situation, particularly when a trial takes place so long after the accident and memories have been dimmed by the passage of time.

9. Notwithstanding these problems and Mr Docking's able address urging me to take a contrary view, I have reached the conclusion that the accident was effectively caused by the defendant driving partially upon the incorrect side of the road as he approached the relevant bend in the road. I find that the speed of neither driver was excessive in the circumstances and the prevailing weather conditions, and I find no reasonable grounds for concluding that Mr Burbury reacted unreasonably or imprudently in driving into the drain as he claimed he did to avoid a collision. The plan provided by counsel shows that the bitumen surface of the road varies between 5.72 and 6.09 metres in width at the present time. The evidence leads me to conclude that it was somewhat narrower than this at the time of the accident, probably in the vicinity of about 5 metres. The north and south bound carriageways were, and still are, divided by double unbroken white lines for some considerable distance on either side of the corner. Although the aerial photograph tends to belie this fact, the corner is a reasonably sharp one. Because of a fairly substantial bank on the western side of the road, ie, the concave side of the bend, intervisibility for traffic approaching the corner is considerably restricted. Intervisibility was also further restricted by the presence of a pussy willow tree near the southern end of a timber shed adjacent to the road on the western side and slightly to the north of the corner. The shed still exists but the willow tree has been removed since the accident. There is a substantial downhill slope in the road travelling from south to north. No estimate of this gradient was provided and I am not sufficiently confident of my own ability to attempt to assess the degree of slope for myself. No suggestion was made that the camber of the road was inadequate or had any direct bearing upon the accident although the defence placed some substantial reliance on the proposition that, south of and at the corner, the road surface had deteriorated and formed a ridge which had a tendency to throw vehicles approaching from the south off line as they approached and traversed the corner.

10. The Burburys, who were living at Dover at the time, left home at about 9am. It was drizzling with rain and the road was wet at the time. They were intending to travel to Hobart to purchase equipment for their boat and to visit a friend. Mrs Burbury said that as their vehicle rounded the corner she saw Mr Sievers' white Magna sedan about 25 metres away straddling the centre lines. It stayed in this relative position as the two vehicles approached and passed each other near the northern end of the shed. She said that her husband steered into the table drain on the left hand side and the front left wheel of their vehicle then struck something, started to go up a driveway at the end of the shed, and then went out of control, rolling over as it did so. The speed of their vehicle prior to this was about 50 to 60 km/h. The speed of the other vehicle was about 70 to 80 km/h. After the Burbury's vehicle started to roll, it came to rest on the passenger side. She and her husband were still conscious. Mrs Burbury was still within the vehicle but Barry Burbury's body above the waist was hanging out of the sun roof which had been forced open in the accident. The occupants of an old HQ Holden vehicle which had been following the Magna came to their aid. Mrs Burbury gave a statement to Constable Davidson two days after the accident (P33) and the narrative of events therein contained appear to me to be completely consistent with her evidence-in-chief during the trial. Moreover, having regard to the overall view which I have formed as to how the accident occurred, I find it significant that Mrs Burbury said that as her husband steered the car to the left "he did not jerk it but steered it round, the next thing the car slid around and we hit the bank and rolled over ..." The picture presented of the car travelling along the drain, striking an impediment in the gutter (which I think it did) and then pivoting about the front passenger side wheel and being deflected by this impediment before heading up the bank and rolling over, is also consistent with Barry Burbury's evidence and is not essentially different from the evidence of other witnesses who described this slewing or pivoting motion in somewhat different terms. I do not regard it as inconsistent with Mr Burbury's statement to the MAIB in the Notice of Accident form which he signed on 1 October 1986, part of which reads, "My vehicle got out of control broadsiding along bank above road before striking tree stump and rolling".

11. Mr Doyle's evidence also lends weight to this version of events. At the time of the accident there was a long piece of concrete pipe covered with earth which formed a culvert in the drain on the western side of the road and provided a low bridge crossing from the road to the orchard adjacent to the northern end of the shed. Mr Doyle was a careful and impressive witness with that engaging candour and clear recollection which often typifies a witness who has been born and bred in the country. He described a gouge mark about 1 foot long in the bank at the southern end of these pipes which he actually observed on the day of the accident. He also confirmed that the Burburys' car was on the bank as described by them and not on its roof on the roadway blocking the north bound traffic lane as described by Mr Sievers. Whilst Mr Ian Fitzpatrick also remembered the Burburys' vehicle coming to rest on its roof, erroneously I think, no witness other than Mr Sievers claimed that it was across the roadway blocking the north bound lane. I find as a fact that the vehicle came to rest on the embankment with its bonnet pointing away from the road and lying on the passenger side. It had reached this position by rolling through 270 degrees, firstly on to its driver's side, then on to the roof and finally, coming to rest as I have described, on the passenger side.

12. In his submissions, Mr Docking, junior counsel for the defence, pointed out that in the photographs of the scene taken in 1987 the centre markings on the roadway appear very indistinct. He used this point to illustrate the unlikelihood that in the wet conditions which existed on the day of the accident, any witness would have been able to see the extent, if any, to which Mr Sievers' vehicle was encroaching on to its incorrect side. However it was not suggested to any witness that the lines were as indistinct on the day of the accident as they appear in the photographs, nor was it suggested that a combination of wet weather and faint paint markings would have prevented him or her from making observations as to the position of the defendant's vehicle on the roadway. Mr Docking also submitted that Mr Burbury's evidence was inconsistent with his answers to interrogatories in several respects but, having compared his oral evidence with those answers upon which he was cross-examined and which were tendered in evidence, I am unable to detect any material which would cause me to accept the proposition that he has significantly changed his story during the course of these proceedings.

13. Mr Burbury said that as he was driving his Mazda 929 vehicle towards Glendevie, "as I came around the bend a white Magna was coming towards me and he was partially into my lane (being the western side lane)". Asked how far the Magna was encroaching he said it was, "probably between a quarter and half a car width". His own vehicle was travelling at about 60 km/h he said, and the Magna and the Mazda were about 25 to 30 metres apart when he first saw the Magna approaching. He steered into the table drain on the left and the oncoming vehicle did not appear to alter course. At or near a position adjacent to the northern end of the shed shown in the photographs, the left side front wheel of the Mazda struck something, "the vehicle actually jumped in the air and started to swing so that it would have been facing a north-westerly direction and just dug into the bank and rolled over." It came to rest on the top of the bank "actually in the paddock". Criticism was made of this description of the vehicle's final resting place in defence counsel's closing address, but I find nothing inconsistent between this description and the description of the Mazda's behaviour provided by other witnesses. I think that the rear end of the Mazda probably commenced to swing out towards the centre of the road before it actually reached the culvert. Exactly where however, I am unable to say. I am also of the view that both the vehicle carrying the Fitzpatricks and Mr Thorpe and the Magna vehicle being driven by Mr Sievers, were substantially further north of the corner than the evidence of the occupants of the HQ Holden would suggest at the time that Mr Sievers drove partially on to the incorrect side and Mr Burbury's vehicle rounded the corner from the Dover direction.

14. One factor having a potential bearing upon Mr Burbury's credit and which caused me some initial concern was a telephone call which he made to Mr Sievers in December 1993. Mr Sievers' version of that conversation suggested that Mr Burbury rang him to try and find out what had actually happened in the accident because he was unable to remember details. This was to some extent confirmed by a note which Mr Sievers made the day after the conversation and which became an exhibit at the trial (D29). However, I accept Mr Burbury's explanation as to why he made the telephone call to Mr Sievers, viz, as a result of a misunderstanding of a remark made to him by his solicitors but I think that both he and Mr Sievers have a selective memory as to what was said in the course of that telephone conversation. I have a strong suspicion that despite the misunderstanding which prompted the call, Mr Burbury was anxious to find out what Mr Sievers intended to say about the accident when giving evidence in the forthcoming trial and that he may have feigned some vagueness of memory for that purpose, but I think it highly unlikely that he was genuinely claiming a loss of memory of any relevant detail of the accident at that stage of proceedings. This view of the conversation plainly reflects upon Mr Burbury's credit, of course, and I do not lose sight of this important fact but, overall, having regard to the view I have formed as to Mr Sievers' unreliability when recounting the relevant events and his admitted attempts to deceive the court on some issues, this is not a sufficient basis for me to discard the male plaintiff's version of events or to entertain a significant doubt as to the cause of the accident.

15. The occupants of the HQ Holden which was travelling behind Mr Sievers' Magna sedan all gave evidence. They were Desmond Thorpe, who was called by the defence, and Ian and Antony Fitzpatrick, both of whom were called on behalf of the plaintiff. They were independent, if unsophisticated, witnesses and their evidence was very important. There is no reason for doubting the honesty of any of them. The Fitzpatricks attended the offices of Mrs Burbury's solicitors approximately five weeks after the accident and gave a statement as to their observations. An attempt was made to have these statements admitted pursuant to the provisions of the Evidence Act 1910, s81B, but I refused the application. Mr Thorpe gave a statement to the police officer who attended the accident but I think his memory had faded somewhat more than that of the Fitzpatricks by the time he came to give evidence at the trial. Mr Ian Fitzpatrick told me that he was sitting in the middle of the front seat of the HQ Holden as it was travelling through Waterloo, a small district about 5 or 6 kilometres north of Glendevie. He noticed Mr Sievers' white Magna travelling along the road ahead. He noticed that it was going over the white lines including double lines on the corners. The extent to which it did this varied from time to time, but on occasions it was as much as 18 inches over the double white lines. He saw the vehicle drive up the Glendevie Hill and as it did so it again went over the white lines in the centre as it approached the corner. He said the vehicle was approximately 1 foot over the lines as it went around the corner. He saw Mr Burbury's Mazda vehicle come round the corner from the opposite direction. At first it appeared to be travelling normally but he said it "just must have swerved some how to miss the Magna and just started to go sideways after that". He said that he saw the Mazda swerve into the left hand side of the road and roll over. He remembered a single policeman attending the accident scene. He thinks this was Constable Whitbread, however he said that he was not asked for his name and address and he does not think that he spoke to the policeman at the scene. He certainly did not tell him that he had not seen anything as was put to him in cross-examination. At no time did he see the Mazda on its incorrect side of the road and he would estimate its speed to be approximately 60 to 70 km/h. He said the Magna vehicle was travelling at about 60 to 70 km/h as it went up the hill. He did not know Barry or Sue Burbury before the accident, although he may have had a drink with their son, Michael, at Dover Hotel on a subsequent occasion. He said that Mr Thorpe's car was travelling about 2 to 4 car lengths behind the Magna as it went up the hill. Mr Thorpe had to "move over a bit" to avoid being hit by the back end of Mr Burbury's car as it slewed just before the accident.

16. Mr Ian Fitzpatrick's credit was attacked on the basis that he had a number of previous convictions but he readily admitted these and there is not the slightest reason for me to disbelieve his evidence in relation to this accident. Mr Ian Fitzpatrick was not asked as to the nature of the road surface although he did volunteer that it was a "terrible road". His brother, Antony, who was sitting in the left hand passenger seat, described the progress of the Magna from Waterloo in the following terms, "every corner he was coming to he was cutting the lines a bit. He did it quite a few times". He also said "we said about him crossing the lines, we thought he might have had a couple to drink". Asked in cross-examination why he remembered so much about the accident, he said (at 108) "because ... on the day we was going to work the roads were wet and we was following this car that was sort of going all over the road. It was crossing the white lines and we knew there was something going to happen." He said as the Magna vehicle approached the corner it went on to its wrong side about 10 feet back from a pole which he identified in the photographs. He said of Mr Burbury's car that it was coming round the corner as a normal car would come round the corner and "he tried to avoid the white car and lost control and it nearly got us, we had to move to the side as well." He said in answer to my question as to what he meant when he said that Mr Burbury lost control, "well he was sort of trying to avoid the white car that was over the white line ... and when he was trying to do that, because the road was greasy, he lost the back end of it as well because the road down there was a bit choppy and there used to be a bump in the road and if you hit that you can lose your back end as well. It just was a bad piece of road down there at the time." I think that in this brief passage he encapsulates his best description of what happened to Mr Burbury's vehicle, although I am by no means satisfied that the slewing motion of Mr Burbury's car was caused by the defective road surface rather than the sudden swerve which I think he must have made to avoid the oncoming Magna.

17. Mr Thorpe's vehicle followed the Magna around the corner and Mr Antony Fitzpatrick said that he could see Mr Burbury's car start to roll over before the shed blocked their view as the Holden proceeded around the corner. He did not know the Burbury's before that day and he says that he gave the policeman his name as a witness but the police never came to interview him. He described the corner near which the accident occurred as "dangerous" or a "suck-in" corner because "you gradually go over the line without realising it".

18. Mr Desmond Thorpe, the driver of the HQ Holden, was first alerted to an impending accident when one of the Fitzpatrick brothers called "look out". Mr Thorpe then said that he saw the rear end of a car "sort of just sliding a bit so I moved to the left hand side". He did this because he thought the oncoming vehicle was going to hit the back of his car. In fact no collision occurred. It seems to me there may be some significance in Mr Thorpe's apprehension that the sliding car may hit the back of his vehicle rather than the front or some other part of it. This tends to give the impression that the further Mr Burbury's vehicle was coming down the road, the more the back end was sliding out. Had it been in a complete broadside across the road as described by Mr Sievers, I would have expected Mr Thorpe to have anticipated a heavy collision with the front or side of his own vehicle and, having regard to the narrowness of the road at this point, he would almost inevitably have needed to swerve off the road on his left hand side to avoid a collision rather than simply deviating to the extent that he did. Mr Thorpe estimated his own speed at between 70 and 75 km/h. It was plain under cross-examination that his memory of the events was not particularly good. He was spoken to by Mr Webster, junior counsel for the plaintiff, by telephone some months prior to the accident and he then informed Mr Webster that he did not remember much about the accident. He was unable to say whether or not there was any discussion between himself and the other occupants of the car about the possibility that the driver of the Magna had been drinking. He was also unable to say whether or not the Magna went over the white lines between Waterloo and Glendevie and he was unable to say for sure whether the Magna was over the centre lines immediately prior to the accident. He thought, but was not sure, that Mr Burbury's Mazda vehicle had gone past the Magna when he saw it for the first time. He also confirmed that the Mazda was not in a full broadside. He said "its tail was just out a bit".

19. Constable Whitbread was called to give evidence for the defence. He said that Constable Davidson was in attendance when he arrived at the scene of the accident, possibly half an hour after it had occurred. He said that he asked all persons standing around whether they had seen the accident and he said that this group included the Fitzpatricks. He said that both of them said that they did not see the accident occur. However it was plain from cross-examination that Constable Whitbread was fairly vague in his memory of what had transpired and that the first time he was asked to recall the accident had been a few weeks prior to giving evidence. He acknowledged that he had attended hundreds of accident in his professional career as a police officer. I have some hesitation in accepting that he made the inquiry of the small group of people in attendance in the terms that he claimed he did. In any event, I attach little significance to the fact that the Fitzpatricks did not volunteer a statement to the police at the scene. As I have already mentioned, Antony claimed that he gave his name and address to the police but was never interviewed, and Ian says that he was not spoken to by the police at all that day. I am unable to make a positive finding as to why neither of them was interviewed by the police. However I find positively that they both observed the driving behaviour of the Magna as it approached the Glendevie Hill and the way in which the Magna and the Mazda passed immediately before the accident occurred. Constable Davidson was not called to give evidence but counsel were agreed that no adverse inference should be drawn from this fact.

20. Mr Docking submitted that it was highly unlikely that Mr Sievers would have driven his vehicle on to its incorrect side going up Glendevie Hill if his tendency before that had been to "cut corners" or if his intention was to cut the particular corner which he was then approaching. However I find nothing incongruous or unusual in such a proposition. The driver of such a vehicle does not suddenly swerve to left or right as he is rounding the corner itself; he gradually drifts across into the oncoming lane as he approaches the corner, usually well back from the actual commencement of the bend and even further back from the apex of the corner itself. Furthermore, having regard to the slight curve back to the left just before the northern side of the corner as is clearly illustrated in photograph P86(1), the behaviour attributed to Mr Sievers is just what I would expect of an inattentive driver with a tendency to cut corners as he approached the bend in question.

21. Mr Sievers denied that his vehicle was on the incorrect side of the road at the time Mr Burbury's car came around the corner ahead of him. He claims that he was on his correct side at all times. However he saw that Mr Burbury's car was going to crash so he continued beyond the corner for a short distance to a place at which it was convenient to turn and then went back to the scene of the accident. He was not there when the police arrived, having decided to return to Geeveston to arrange for a tow truck to come and pick up Mr Burbury's vehicle. It was suggested that this behaviour indicated that he was anxious to absent himself from the accident scene due to a realisation that he had been responsible for it. I am unable to attribute these motives to him. At all events he attended the police station at Dover and gave a statement later the same day. His statement to the police was in the following terms (Exhibit D30):

"Just prior to 9am this morning I was driving a white

Magna CE 0992 south on the Huon Highway towards Dover, my

speed was around 70 km/h.

I was travelling up hill through Glendevie at the time,

the road was wet and slipper.

I was approaching a blind right hand corner and I was

about fifty metres from the corner when a blue sedan

rounded the corner from the opposite direction, I saw the

tail end begin to slide out, I did not have time to take

evasive action but I was not hit, the last I saw of the

vehicle was in my rear vision mirror and it was virtually

at right angles to the highway.

I would say that he was not going fast.

I went back as I could tell he was going to hit something

I saw the vehicle on its passenger side with the driver

sitting on the bank talking to his wife who was still in

the vehicle and still in her seatbelt.

I made sure she was okay and later helped her to sit in

another vehicle and then I left to arrange a tow truck

from Geeveston."

22. It will be noticed that in this statement Mr Sievers says that he saw the tail end of Mr Burbury's vehicle "begin to slide out". He then continues to describe the vehicle's behaviour and suggests, as I see it, that it was virtually at right angles to the highway after it had gone further down the road beyond the point at which the vehicles passed each other. In his evidence during the trial however Mr Sievers said that he saw Mr Burbury's vehicle broadsiding (nearly 90o to the road) as it came into view around the corner ahead of him. In fact he says that he saw the rear of the vehicle before he saw the front end. His view, he says, was almost completely side on. This description is consistent with the description which he gave in answer to interrogatory No 18 (P150). If this is what he saw the Burbury's vehicle was plainly out of control. Yet Mr Sievers says it was "not going very fast" and furthermore that it followed the line of the road as it came around the corner and ultimately crashed - actually he did not say this specifically but it is inherent in what he did say and the way in which he described the vehicle in its final resting position on its roof (partially) and on its correct side or substantially on its correct side of the road.

23. It seems to me that if the vehicle was in a full broadside as it first came into Mr Sievers' view, it would be almost inevitable that it would slide on to its incorrect side of the road and possibly off on to the verge or into the paddock on that side at or near the apex of the corner. At no time did Mr Sievers claim that the driver of the oncoming vehicle regained control of his car or was able to steer the vehicle back on to its correct course. It is also inconceivable to me that, seeing such events unfolding so closely ahead of him, Mr Sievers would not brake heavily and swerve hard to the left, if necessary going off the road, in an attempt to avoid an accident. The time available to take evasive action was not great and Mr Sievers was aware that another vehicle was following closely behind his own car, but, nonetheless the picture he presents is one of imminent peril requiring an immediate response and I find it extremely difficult to accept that he apparently made no attempt to avoid a collision. As I have said, resolving the conflict of evidence between the plaintiffs and Mr Sievers is not easy because of the absence of objective marks upon the road from which the course of either vehicle could be deduced. However, the Fitzpatrick brothers, despite some discrepancies in their evidence, tend to support the plaintiff's case. Significantly they did not claim that Mr Sievers' vehicle was wholly on the incorrect side of the road. There was no obvious exaggeration in what they said. They are plainly independent witnesses and they were well placed to see what happened. They also described Mr Sievers as driving inattentively over a substantial distance before the accident occurred.

24. It is strange that Mr Sievers, having driven on around the corner and then back to the scene, did not arrive until Mr Burbury was out of the car and "sitting" on the bank but this is of little significance. What is of more significance is that Mr Sievers did not identify himself as the driver of the Magna to Mr Burbury and it is obvious, on any version of the evidence, that Mr Burbury did not recognise Mr Sievers as such. According to Mr Sievers he asked Mr Burbury "what happened" to which Mr Burbury replied "Some bastard run me off the road]" An utterance of this kind is almost part of the res gestae and it tends to confirm Mr Burbury's version of events. Mr Sievers says that he interpreted this response to his question as an attempt to blame a fictitious person for the accident but I find this hard to accept. If Mr Sievers was not responsible for the accident, he may have had every reason to view Mr Burbury's claim that someone had "run him off the road" with suspicion if he had seen him come around the corner and then start to broadside. If however Mr Sievers was not responsible and saw Mr Burbury's vehicle sliding broadside on as it actually came into his view as he claimed, and if, furthermore, it was not going fast at the time, he would have no reason for suspecting that Mr Burbury was blaming a fictitious person for his own negligence. I do not overlook the fact that Mr Sievers says there were no other vehicles proceeding up the road ahead of his car towards Dover and therefore, if Mr Burbury had said to him that someone had "cut the corner" and forced him off the road, Mr Sievers may well have been suspicious of that claim, but in the absence of further inquiry by him or explanation by Mr Burbury as to what happened, it would be a very strange conclusion for him to have reached that Mr Burbury was lying as to the cause of the accident when all he had said was "Some bastard run me off the road]" Someone may well have pulled out of a driveway or from the side of the road just around the corner (and it was a blind corner) forcing Mr Burbury to take evasive action.

25. Mr Sievers appeared an articulate, careful and intelligent witness in evidence-in-chief, but under cross-examination he demonstrated a capacity to rationalise, a poor memory and a propensity to make contradictory and inconsistent statements. More importantly, he also admitted telling deliberate lies. Certainly this was under fairly intense pressure from Mr Gunson, senior counsel for the plaintiff, but I find that the admissions were not simply the product of such pressure and did in fact represent a true acknowledgment by the witness of a desire to deceive the court.

26. For the reasons I have given I take the view that this accident was caused by Mr Sievers allowing his vehicle to encroach over the double centre white lines thus forcing Mr Burbury to swerve to the left to avoid a collision. I find that the extent of this encroachment was in the vicinity of 18 inches into Mr Burbury's lane. Despite the nature of the corner and the condition of the road surface and the state of the weather at the time, I am not satisfied that Mr Burbury's driving was a contributing factor. This is a very narrow section of road, even at the present time. It was somewhat narrower in 1986. Mr Burbury's capacity to manoeuvre was circumscribed by the proximity of the drain and embankment on the western side of the road. I find that he did all he reasonably could to avoid a collision in the limited time available to him. I turn now to consider the question of damages in both actions.

27. Mrs Burbury was aged 38 at the time of the accident and is now 45. She left school halfway through her second year at High School at age 13 and has undertaken no formal academic education since then. During her early years in the workforce she was employed as a factory hand on the mainland and later returned to Tasmania where she worked as a shop assistant in Hobart and as a factory hand on the North West Coast. On going back to Sydney about 1964, she met and later married her husband. There were two children of the marriage, Michael born 1965 and Lisa, born 1966. She continued working in Sydney and then in Victoria as a factory hand, returning once more to Tasmania in about 1970 where she obtained work as a housemaid at the Travelodge Hotel in Hobart for about 4 years. The family moved to Spreyton where Mrs Burbury secured employment as a motel housemaid at the Argosy Motel and subsequently as a factory hand at Edgells. Then she worked as a housemaid again, this time at the Gateway Hotel where she continued for about four years.

28. The female plaintiff also bred Pekingese and Scotch Collie dogs over a period of about eight years but it is unclear from the evidence whether the hobby was continuing at the time of the accident. This was not a commercial venture, apparently, but the plaintiff derived pleasure and satisfaction from breeding and exhibiting the dogs.

29. From 1982 onwards she operated a fishing venture in partnership with her husband as B and S Burbury. They had both been keen amateur fishermen before this time. Their first commercial fishing boat was a 29 foot converted 'couta boat, the "Sue Anne". This was operated by Mr Burbury alone from 1979 until the formation of the partnership with his wife. The "Sue Anne" was later sold and replaced by the "Imlay Star", a 40 foot diesel powered fishing boat. Mrs Burbury assisted her husband in maintenance work on the boat including sand papering and painting.

30. Before she joined the crew of the "Imlay Star" she did much of the maintenance work at home such as lawn mowing and gardening. Soon after the "Imlay Star" was purchased Mrs Burbury commenced going to sea as a working member of the partnership. At first the boat operated as a trawler, then as a scalloper for about five months from March to July 1982, and finally she was converted to a cray fishing boat with a licence for twenty-three pots. This was later increased to twenty-nine pots. Mrs Burbury says that after this final conversion she worked regularly as a deckhand and that she and her husband were the only two regular members of the crew. This claim is somewhat at odds with the partnership records which suggest that on about fourteen occasions an additional deckhand was engaged for a voyage but, despite counsel for both parties (for obviously different reasons) suggesting that I should make no positive finding about this, I am very suspicious that these records are not accurate and that an extra crew member was not on board on most of these occasions.

31. In 1983 the Burburys moved to Dover and continued to reside there until the accident. It is apparent from the description provided by both Mrs Burbury and her husband that she was capable of and consistently performed hard physical work including handling heavy cray pots and equipment. The cray pots have a dry weight of 33 1/2 kilos each. When the anodes are added and they are wet the pots are considerably heavier. I have no reason to doubt that prior to the accident she was in excellent health and was in strong physical condition.

32. Mrs Burbury said that in good fishing conditions they would make as many as four shots a day and one shot at night, but there is little, if any, documentary evidence to support this claim. Indeed such records as there are tend to contradict it. Nonetheless it is plain that they operated well as a team and were good fishermen, producing substantial catches. They lived on the boat, and principally fished the South, South East, East and North East waters of the State. They both enjoyed the life and her recollection of the good times brought tears to Mrs Burbury's eyes. No doubt seven years or so after the event one tends to forget the cold, rough weather, the days when the fish were elusive and those occasions when even a forty foot boat must have seemed a cramped and damp environment. For two months of the year, usually May and June, the boat was taken to Dover for slipping and the performance of routine maintenance work in which Mrs Burbury regularly participated. This too was physically demanding work. Speaking of her physical condition Mrs Burbury said, "I had muscles in my arms. I was more like a body builder and felt like one."

33. From time to time Michael went on fishing trips with his parents. According to his mother this was very infrequent, "probably once, Christmas time for extra money". She said, "There was no need to take him" - meaning as I understand it that she and her husband were capable of doing the necessary work on their own.

34. In February 1986 Mr and Mrs Burbury took time off from fishing to complete building their house at Dover but apart from this break they appear to have been more or less continuously engaged in crayfishing during the relevant crayfishing seasons up until the accident. After the accident, although Barry Burbury returned to sea for a limited time in 1987 and 1988, Mrs Burbury did not accompany him. She has not been fishing since the accident.

35. Following the accident for a period of three months, the plaintiffs kept separate diaries in a single book detailing their daily experiences and in particular their disabilities arising out of the accident (P34). As these entries go back to the actual date of the accident and as the diary was compiled on their solicitor's advice, it is plain that some of the entries are retrospective and not contemporaneous. Nonetheless it is a useful record of their daily experiences and feelings.

36. Initially Mrs Burbury was aware of pain at the base of her neck and in the left hip. She travelled to the Royal Hobart Hospital with her husband by ambulance but neither of them was admitted as an inpatient. She was provided with a stiff neck brace and returned to Dover by the ambulance. Her husband was admitted to the Dover hospital for about three days. She herself was not admitted.

37. The morning after the accident Mrs Burbury awoke to find that she was shaking and her neck was very sore. She believes that she consulted Dr Parker but has no recollection of doing so. The principal source of Mrs Burbury's neck pain is just below the collar line at the base of the neck. She says that she has pain from this source at all times although it does vary in intensity. It radiates into the right shoulder and all the way down the left arm. The fingers on her left arm are numb. This developed within a few days of the accident. She still suffers pain in the hip but this is not continuous "it comes and goes". The only other injuries she suffered were a few bruises to the left hip and the right breast. She consulted Dr Parker and continued wearing the neck brace. She was prescribed Panadeine Forte for the pain in the neck. Additionally Dr Parker prescribed physiotherapy treatment. Mrs Burbury said that for the first few days after the accident she had difficulty sleeping and suffered an amount of dry retching. The pain she described as "excruciating". She also suffered bad headaches. She said "I didn't really think that I could live with them." To enable her to sleep she took Serapax. She continued to see Dr Parker who arranged for her admission to St Helen's Hospital where she was seen by Mr F G Binns, an orthopaedic surgeon. She has seen him on numerous occasions since the accident. An unusual feature that she has noted is that from to time she becomes very breathless and is unable to breathe deeply. She said it is like a spasm which stops her taking a normal breath.

38. On Mr Binns' recommendation she consulted Mrs Karen Grimmer of Northside Physiotherapy Centre for physiotherapy treatment but Mrs Burbury says that physiotherapy did not provide either relief or improvement in her condition. Mrs Burbury claims that as a result of her disabilities following the accident, she is now unable to work on a fishing boat and she says that her capacity to lift heavy objects is now severely restricted. She says "two or three dinner plates is about my extent". She can carry a partially full basket of wet washing but generally has difficulty holding objects because she had a tendency to drop them from her numb fingers. She says that she has a constant headache ranging from mild to "lifting off". During the course of her sojourn in the witness box she claimed that she had a headache throughout that experience. She also said that she had pain in the middle of her shoulder blades. The pain in her left hip she described as like a nagging toothache and she had noticed that it was brought on in particular by climatic changes. She cannot lie on her back without pain and she sleeps at night on her right side. Her ability to perform housework has been restricted. Mrs Burbury says that prior to the accident she was very house proud. She cannot now clean windows, change a light bulb or put a doona cover on the bed. She cannot lift a roasting dish out of the oven, mow the lawns or do the garden. She says she can use a duster. She is also able to drive a motor vehicle but this aggravates the pain in the neck. She no longer wears a neck brace having abandoned it approximately eighteen months prior to the trial. She has not had physiotherapy for about three years as it did not appear to be giving her any improvement in her symptoms. About once a fortnight or once a month she suffers from dizzy spells. When walking, she gets pain in the hip which radiates down the entire length of the leg into the ankle where it feels like a burning pain. She continues to take Panadeine Forte, up to six or eight tablets a day and she also takes Panamax.

39. Mrs Burbury used to enjoy knitting but has given this up as she says she cannot do it without pain. She can no longer dig in the garden. This was previously a pleasure for her. Travelling any great distance in a motor car cannot be achieved without pain. Prior to the accident she enjoyed a good sexual relationship with her husband but this has now totally ceased. She attributes this development to pain but just how or why her accident related injuries have affected this aspect of her personal life is difficult to see. She claims to be distressed by the fact that sexual relations have ceased. She is unable to carry heavy bags of groceries from the supermarket and she now has trouble caring for her dog. She no longer breeds dogs. She has numerous other difficulties. She is unable to wear high heeled shoes, she has difficulty reversing a motor vehicle and has to use the rear view mirrors to achieve this manoeuvre. She claims that these restrictions have severely frustrated her. I have no reason to doubt these claims which were amply corroborated by her husband and are consistent with the medical evidence.

40. In December 1987 she consulted Mr Michael Jackson, an anaesthetist specialising in pain control and he administered a cervical epidural injection. This provided no relief and in December 1987 Dr Jackson performed a facet block. Initially this provided some pain relief but the problems returned within a few hours. She was admitted to St Helen's Hospital from 13 to 15 August 1990 for treatment by Mr Hunn, a neurosurgeon who performed a myelogram. Not surprisingly she found this a painful procedure. Mrs Burbury is able to vacuum around the house but this causes pain and she is unable to do the whole house at the one time. Once again I must say that this complaint does not surprise me. It is a complaint commonly made by people who have sustained a whiplash injury of the kind which Mrs Burbury appears to have sustained. She has some difficulty putting on jumpers and she finds the continual movement associated with ironing painful. To alleviate this she has purchased a light weight iron and her husband now helps her in this task. She cannot use a blow drier on her hair and she can only use a brush for a minute or so. Sometimes her husband assists her with these chores. She says that she has difficulty hanging out clothes on the clothes line. She is able to do it and will do it if there is nobody else there to assist her but mainly it is done by her husband. If she performs this task however she pays for it by pain later on.

41. Mrs Burbury has not been employed in any capacity since the accident and for the last 3 1/2 years she has been an invalid pensioner. Mrs Burbury says that she is in tears almost every day because of the pain that she experiences. Describing her breathless attacks in a little more detail she said that these occur four or five times a year on average and last up to five days. She said "I can't breath I have to take little tiny shallow breaths I am in so much pain I cannot sit down I cannot stand I cannot lay down I cannot do anything." She says the pain seems to originate in some spasm between the chest wall and the shoulder blades. When it occurs she can do nothing but go to bed for the duration of the attack. These symptoms were not fully explained by any medical practitioner called by the plaintiffs but Mr Southby's evidence tended to show how they were related to the neck injury.

42. At one stage she and her husband went to Queensland to see whether or not the weather conditions up there may be more conducive to relief of their painful symptoms but the warmer climatic conditions were apparently of no assistance at that time. She tried a TENS machine to alleviate the pain but it only appeared to make her symptoms worse.

43. Mr and Mrs Burbury now reside in Devonport and she sees Dr New, a general practitioner practising at Ulverstone, who prescribes Panadeine Forte in packages of 100 at a time. Since August last year she has been taking Ducene instead of Serepax to help her sleep. Throughout the trial, whenever she was in court, whether giving evidence or simply observing proceedings, Mrs Burbury sat with her neck in a very rigid position. She appeared unable to turn it from side to side without considerable difficulty and she appeared limited in her capacity to do so. This appeared to be in marked contrast to her movements as shown in some surveillance film which was tendered in evidence, in particular a film taken when she and her husband were at Kingston Beach. Mr Burbury, when giving evidence, conceded that the video films gave a fair depiction of how he and his wife were living and what they could and could not do at the present time.

44. A number of the medical experts who were called to give evidence also remarked that Mrs Burbury's apparent freedom of movement in the film contrasted with the stiffness that she appeared to exhibit in her neck when attending their surgeries. In only one film, as she was walking towards a supermarket, did Mrs Burbury seem to exhibit the same stiffness in her neck whilst being filmed. It was suggested by Mr Kable, senior counsel for the defence, that this stiffness only became evident after Mrs Burbury became aware that she was under surveillance and was being filmed by private investigators. Had this fact been proved in evidence, I would have been a good deal more sceptical of the plaintiff's evidence. However the Gard brothers who carried out the greater part of the surveillance claimed that they were very careful to ensure that their filming activities were not observed by the plaintiffs and they claimed that at no stage did they deliberately let the plaintiffs become aware that they were being filmed. On the other hand Mr and Mrs Burbury claim that they were aware of the surveillance from a very early stage; indeed to such an extent, that their neighbours complained of the presence of the investigators' van at Blackman's Bay where some of the filming was carried out. It is difficult to know just when the Burbury's became aware that they were under surveillance. There are two sequences in the surveillance video tapes showing Mrs Burbury hanging out clothes on a clothes line. The first and earliest of these was taken at Dover and, although not particularly clear, seems to show her performing the task without apparent difficulty. A closer and more revealing film of her performing this task was taken whilst she was at Blackman's Bay. The clothes line is above head height and she appears to be stretching up to the line and pegging clothes without any difficulty. Once again I think it fair to say that the medical practitioners who were asked as to their impressions of this film expressed some surprise that she was able to perform this task as well as she could in light of the complaints she had made to them and the appearance that she presented when attending their surgeries. On the balance of probabilities I find that Mrs Burbury's neck movements are not nearly so restricted as they appeared throughout the trial. I think there has been a degree of exaggeration of symptoms but I am still satisfied that she is substantially disabled by the neck injury and, given the consequences of that disability, that she is unlikely to be able to work in those areas of employment in which she has had past experience.

45. The overall impression I get is that Mrs Burbury has tended to exaggerate her symptoms and disabilities when attending doctors and I have little doubt that these exaggerations have come about as a result of her desire to impress them with the extent of her disability. On the other hand it must be borne in mind that whiplash injuries of the type that she sustained, if not mechanically disabling the patient from performing the household tasks described by Mrs Burbury, often produce symptoms of discomfort and pain once the task has been accomplished. In an attempt to continue leading as normal a life as possible whiplash victims will frequently continue their domestic chores as best they can but at the cost of chronic recurring pain. Injured plaintiffs will frequently say "I can't do this or I can't do that" when what they really mean is, "If I do this or that I pay for it with pain later on". Mr Kable very fairly conceded that he did not place reliance on the video films as showing that Mrs Burbury could in fact perform tasks which she had said she was unable to perform, but rather, he said, the films show that her neck and associated physical movements are much less restricted than she consistently maintained to the doctors and during the course of the trial. In Mrs Burbury's case I think she has a moderate degree of disability resulting from the whiplash injury. I think this degree of disability is such as to prevent her from returning to employment on a fishing boat and I am also satisfied that she is precluded from factory work or housemaid work in a motel of the kind that she used to undertake prior to entering into the fishing partnership with her husband. In light of her lack of formal education I think it unlikely that she will obtain paid employment in the future. To all intents and purposes she has been totally disabled by the accident.

46. A number of medical practitioners were called in support of the plaintiff's claim. The reports which they had prepared from time to time were tendered as exhibits and provided the framework around which their oral evidence was given. In addition, medical reports prepared by Mr Graeme Duffy, a neurosurgeon from Hobart and now sadly deceased, were taken into evidence by consent. Mr Robert Southby, a consultant neurosurgeon from Melbourne, gave evidence on behalf of the defence.

47. I have already mentioned that Mrs Burbury saw Dr Parker, a local general practitioner at Dover, and was referred by him to Mr F G Binns, an orthopaedic surgeon practising in Hobart, about three weeks after the accident. Mr Binns noted that she had a very painful neck but "no other injuries", but I do not take this to necessarily contradict the plaintiff's claim that she had a jarred hip as well. Mr Binns observed that Mrs Burbury had a long thin neck and that she was tender and exhibited very little movement in the neck. He also noted that there were no abnormal neurological findings in the arms and no x-ray evidence of bony injury to the neck although he did note "evidence of minimal early degenerative change of the C6-7 intervertebral level" - a condition which Mr Duffy regarded as caused by the accident when he saw her in April 1987, at which time he said in a report to Dr Parker, "There is probably some narrowing at the 6-7 level with a little flake of calcium in front of it ... There is little doubt that she has injured the 6-7 disc and she could well have a problem at the 5-6 level as well".

48. Other doctors, notably Dr Michael Jackson and Mr Hunn, tended to attribute the bony abnormalities at C6-7 and in particular the small bone flake to the motor accident but it is probably unnecessary to make a specific finding as to this because I take it to be uncontested that whatever painful symptoms and movement restrictions have existed in Mrs Burbury's neck, arm and shoulder region since September 1986, are indeed attributable to the trauma of the accident. The real issue is as to the extent of pain, restriction and consequent disability.

49. Mr Binns recommended that she wear a collar and take analgesics for pain. He also prescribed physiotherapy, firstly at Dover, and then at the Douglas Parker Centre. As already noted, Mrs Burbury says she had no relief from this treatment. She attributed her lack of success in this respect to the necessity to make long car journeys from Dover to Douglas Parker Centre for treatment which tended to exacerbate her neck pain, but as Mr Kable pointed out, she had the option of entering Douglas Parker as an inpatient but had neglected to do this. Mrs Burbury was unable to satisfactorily explain her reluctance to follow this course. When seen by Mr Binns on 16 June 1987, ie, nine months after the accident, he noted that she had a "fair range of movement of her neck" but with pain and also that she had pain in the neck, discomfort in the left arm and odd feelings in the little and ring fingers. Mr Binns considered that her progress was slow but hoped the injuries would settle down. By 30 October 1987 however, he had concluded that unless she was prepared to submit to surgery she was unlikely to improve further. Mrs Burbury has maintained throughout the period since the accident that she is not prepared to have invasive surgery of the type recommended from time to time by some of the medical practitioners who have seen her, namely an anterior cervical micro discectomy/fusion. On the other hand, all doctors agreed that it was reasonable that she should refuse that procedure as experience shows that it is not universally successful in alleviating all or even most of the symptoms resulting from this kind of whiplash injury and it is a procedure with not inconsiderable risks. Although declining a discectomy/fusion operation, Mrs Burbury has undertaken at least three procedures for diagnostic or therapeutic purposes which have required her admission to hospital. Following an unsuccessful trial with a TENS apparatus, she had a cervical epidural carried out at St John's Hospital on 23 November 1987 by Dr Michael Jackson. This failed to have any significant impact on her symptoms although there was some initial relief of pain. After she was reviewed by Dr Jackson she was re-admitted to St John's and Dr Jackson performed a cervical facet block of left C3, C4, C5, C6 and C7. Again there was initial pain relief but within a short period her previous symptoms returned. On 14 August 1990 she underwent a myelogram performed by Mr Hunn. In his report of 20 September 1990, Mr Hunn, taking account of the results of the myelogram and the results of an electrophysiological assessment carried out by Dr Siejka, concluded that surgery did not offer a solution to the plaintiff's problems. It is clear therefore that Mrs Burbury's disinclination to have such a micro discectomy/fusion operation cannot diminish her claim for damages on the basis that she has failed to mitigate her loss (cf Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345).

50. The first specific mention to a doctor of possible neurological symptoms in the left leg appears to have been made by Mrs Burbury to Mr Binns on 27 June 1989 although it must be noted that she had complained to Dr Parker sometime before this of "aching legs" - indeed she mentioned to him a much more diverse range of symptoms than she appears to have mentioned to the other medical practitioners. In the history which Mrs Burbury provided to Mr Hunn on 25 June 1990 she said that she noticed pain in the left hip following the accident. Whilst by no means of the same magnitude as the pain in the neck, the hip pain is said by Mrs Burbury to have continued to produce painful symptoms to the present time. These are factors necessarily to be considered in assessing the plaintiff's overall consistency and reliability. Having considered the matter from this perspective I cannot say I doubt her claim to have suffered some degree of injury to the left hip but I do not think that it can loom very large in the overall assessment.

51. Apart from this factor I think it fair to say that Mrs Burbury's complaints to the various doctors who have seen her have had an overall consistency.

52. Generally speaking (with the initial exception of Mr Southby) they hold the view that she is permanently disabled from performing the work which she previously performed on the fishing boat and that she should not be involved in employment requiring repeated bending, heavy lifting, jarring the neck or holding her head or neck in cramped or unusual positions for prolonged periods of time. She would probably have difficulty in employment involving significant use of a computer terminal and, as driving a motor vehicle more than a few minutes causes pain in the neck, driving a taxi or courier van would be out of the question.

53. There is some difference between the doctors as to whether Mrs Burbury's current condition will improve, deteriorate or remain the same. It is accurate, I think, to say that comparing her earlier complaints to the doctors with her present complaints in the witness box, that her condition has become worse since an initial improvement was noted by Mr Binns in 1986, but it isalways difficult to assess this when one remembers that the trial process causes a plaintiff to focus upon his or her symptoms in much greater detail than one would expect during even the most thorough and careful medical examination. Overall I am satisfied that the plaintiff will not improve whether or not she has surgery but I think that significant deterioration is unlikely. To all intents and purposes her present condition can be regarded as permanent.

54. The defence made a very important issue out of the apparent freedom of movement shown by the plaintiff in some of the video films and the very limited degree of neck movement amounting to an almost rigid condition as manifested during her visits to medical practitioners and also during her time in court. It was suggested that this indicated that she was pretending a much greater degree of disability than actually existed.

55. The video film was shown to Mr Liddell, Dr Jackson and Mr Hunn. It was suggested to them that she appeared to move much more freely in the film than when presenting to their surgeries for assessment. This point was generally conceded but Mr Liddell staunchly maintained that his overall assessment of the plaintiff's disabilities was not significantly altered. Dr Jackson conceded that the plaintiff's movements as filmed may be evidence of exaggeration of symptoms as reported to him. The video film was not shown to Mr Binns although some of the events depicted therein were described to him and he was asked to comment. Mr Kable's cross-examination of Mr Hunn illustrates the extent to which his views, as expressed in his reports and in evidence-in-chief, were modified as a result of seeing the films:

"Q (Referring to video film taken on 17 January 1990)

Are you able to say anything about the movement of either

the neck, or Mrs Burbury in that short segment as to the

consistency of the movements observed and the way she

presented on examination? ... She appeared to have a full

range of neck movement on that particular scene and

appeared to be working in a posture that would be

disadvantageous for her neck without great difficulty.

So once again there would appear to be some inconsistency

with what I've been told and what I've observed. However

if she had, for instance, recently taken analgesic, or if

there was something that she was doing as a once off and

paid for it later, then possibly it might be an

explanation.

...

Q Now you've looked at the larger video what do you say

as to Mrs Burbury's ability to move her neck from time to

time as evidenced on that video. Did you see her move

her neck to a greater extent than she had on clinical

examination on the video? ... Yes, I would have to say

that in general she appeared to move her neck more freely

and through a greater range than I observed her clinical

examination. However, on particular instances I did feel

that while the range of movement was greater than it had

been on examination it was still less than would be

expected of complete normality and that I did feel that

there was some evidence on the video of restricted neck

movement, particularly rotation.

Q Certainly towards the end there was one segment, very

demonstrably where she seemed to walk very stiffly from

the rear of a car toward a shopping centre. Do you

recall that now? Are your conclusions based generally on

the whole video rather than it segmented? ... My

conclusions were based on a number of instances,

particularly one where she was talking with a friend - I

think at Kingston Beach and at one point she looked over

her shoulder and it seemed to me pretty clear that she

did not move her neck fully round as one would expect

normally and was forced to deviate her eyes and twist her

shoulders indicating some restriction and possibly

discomfort in doing that.

Q Thank you. But not restriction or discomfort to the

extent evidenced to you upon examination? ... No. It did

seem less.

...

Q We have a person who appears to be unrestricted in

their movement and that's not Mrs Burbury in the film or

upon examination. We have Mrs Burbury upon examination

who is severely restricted in movement. And we have Mrs

Burbury in the film evidencing a greater degree of

movement and ability to move the neck than exhibited upon

examination but the film does not lead you to the view

that she is completely unrestricted in her ability to

move her neck. ... That is correct.

Q That would be an accurate summary? ... That would be.

Q And in reaching those conclusions the video you saw,

you were made aware by the provision of a schedule that

it was taken on a number of different days? ... Correct.

Q And you were made aware that on some occasions the days

were close in time to each other? ... Correct

...

Q Having watched the video, is it a reasonable medical

conclusion that there is no medical reason why, provided

she takes her time, Mrs Burbury should not do normal

domestic chores in the house? ... The video evidence can

only be interpreted in terms of the movement and we can't

make any conclusions as to the discomfort that might be

associated and in viewing the video I felt, on several

occasions, well here's somebody doing something that

looks pretty normal but then I had to caution myself in

making any conclusions that I couldn't tell what she was

experiencing or what she might have felt the next day.

And she was doing things such as dealing with a

grandchild which she probably didn't have any alternative

but to do what she had to do. So on the evidence of her

function movement one would certainly feel that she was

likely to have a pretty full range of abilities with

respect to household duties but I cannot comment on what

those duties might entail in terms of symptoms that might

be generated and there could be significant discomfort as

a result of some of the heavier aspects of the household

duties.

Q She gave evidence that she, in fact, obtained relief

from taking the pharmaceutical products that she takes -

that is the Panadeine and various other ones and if her

evidence were that that does in fact relieve the symptoms

of pain then that conclusion, coupled with the lack of a

functional disability, would authorize the conclusion

that she is not disabled, subject to taking the

pharmaceutical products, for ordinary household tasks?

... I would agree.

Q And again if she were to have given evidence that she

does obtain pain relief from the pharmaceutical products

she takes that would authorize the conclusion that she

could perform tasks above her head, such as putting the

washing out? Not for eight hours a day, but in the

confines of a family of two adults and one small child.

... Yes.

...

Q Now you then, in response to the specific questions,

set out your opinion and you opine as to the genuineness

of complaints and you indicate, as I understand your

report, that one of the things that influences you in

reaching that conclusion was that the clinical findings,

a lack of cervical motion - that's one of the two

features that you found persuasive, led you to the

conclusion. What I want to suggest to you is that

conclusion, firstly, cannot be drawn as strongly having

regard to what you've now seen on video? I don't suggest

you necessarily have to go to the complete opposite, but

that your conclusion that the complaints are genuine, to

the extent they were made to you, that conclusion is no

longer as easily drawn? ... The degree of symptom and

the incapacity implied I think would have to be

reassessed, yes.

Q And it is not possible for the clinician in a case such

as this, where you have not had the benefit of watching

the witness for many days, to reach a conclusion as to

whether the reason for the difference in symptomatology

is conscious or subconscious, is that a fair - - ...

Correct, yes.

Q As a clinician sitting here giving evidence you can

say: 'the symptomatology complained of is very different

to that which I saw on film, therefore my conclusion that

the complaints are genuine has to be reassessed in the

light of the new evidence, but I'm not equipped to say

whether the person is being deliberately not truthful, or

whether the symptomatology has changed, because of

unconscious or subconscious reasons'? ... Correct.

Q All those propositions are reasonable propositions? ...

I believe so."

56. Mr Kable submitted that Mr Hunn was an impressive witness and whilst agreeing with him in this respect, I should not be taken as indicating that any of the other medical practitioners were other than careful, reliable and helpful to me. Mr Liddell's evidence was of particular value.

57. Video films often provide dramatic evidence of a false or inflated claim but one must be careful to bear in mind that they represent but a small fraction of the plaintiff's activities during the period between accident and trial and that a lay assessment can sometimes be mistaken. This was well illustrated in this case by the doctors, particularly Mr Liddell, observing and commenting upon movement restrictions and abnormalities which were not immediately apparent to me on a first viewing. Nonetheless, I have concluded that the video films do tend to prove that the plaintiff's neck movements are substantially less restricted than she claims and this must lead inevitably to the conclusion that, consciously or subconsciously, she has exaggerated her degree of incapacity. Notwithstanding this adverse finding I remain of the view that Mrs Burbury has a significant residual disability. As Mr Hunn observed in his report of 28 May 1993 (Exhibit P54):

"It is recognized ... that in persons suffering a kinetic

injury to the cervical spine there may be a dearth of

radiological, electrophysiological and neurological

abnormalities demonstrated and yet symptoms persist."

58. Mr Hunn had also noted in an earlier report that in Mrs Burbury's case the altered sensation over the ulnar digits was a clinical finding (as I understand it with a substantial objective component) which tended to support her case. This was a finding additional to the lack of cervical motion which he initially regarded as confirmatory of the genuineness of her complaints but which he conceded he would have to reassess in view of what he had seen on the video film.

59. Mr Robert Southby, a consultant neurosurgeon from Melbourne, examined both Mr and Mrs Burbury on behalf of the defence. He was called to give evidence only in respect of Mrs Burbury. He said that he considered the abnormalities detected by x-ray, CAT Scan, Myelogram and MRI investigation at C6/7 to be degenerative in origin and not the product of the motor accident. He acknowledged an impairment of neurological function in her left arm and hand but expressed the view that Mrs Burbury had no physical disability as a result of her injuries, taking the view that the accident had merely caused "transient aggravation" of the degenerative changes at C6/7. Between 24 November 1989 and 11 October 1993 Mr Southby prepared numerous reports for the defendant's solicitors and saw Mrs Burbury on many occasions. It is noteworthy that Mrs Burbury's reported symptoms remained fairly constant throughout these examinations. Whilst Mr Southby is a surgeon whose views are entitled to respect, I feel he was somewhat hasty in his initial judgment of the female plaintiff. In cross-examination he acknowledged that Mrs Burbury may well have pain of the type she described and it appeared to me that in making the initial assessment of her which he did, he was really saying that he was unable to find a physiological reason for the pain. However he acknowledged that he had no reason to doubt the veracity of her complaints and that people allegedly suffering from whiplash type injuries frequently claim to suffer from a similar pattern of pain and disability. Asked as to Mrs Burbury's evidence as to breathing difficulties with associated chest problems, he said:

"Was that particular complaint an unusual one in any way

at all given the nature of the injury she described and

given the nature of the pain that she complained of? ...

It is slightly unusual, but it is a reflection of the

fact that the upper front part of the chest wall, what is

called the pectoral region, which is the part that is

overlain with the pectoral muscles, chest muscles, that

area is supplied by nerve roots that come from the neck

and some people - not a great number, but some people do

complain of a pain in the chest as a result of a neck

injury and this pain can appear to be made worse by

breathing.

She described in her evidence some sort of attacks that

she gets where it gets worse on occasions. Is that

consistent with the sort of problems that you've

experienced with other patients. That's usually where the

chest pain comes in attacks of that nature - I think it

is less likely to be coming from the neck and is more

likely to be a local chest condition, but I have no

difficulty accepting that people with neck problems can

complain of chest pain.

And so this wasn't something that you found remarkable in

her history? ... No, sir.

And you accepted her complaints in this regard were

genuine, in that she described a symptom that sometimes

occurs? ... Yes, sir."

60. He was then questioned about her hip problems and headaches as follows:

"And she also mentioned pain in her left hip which

spreads down the back of the left leg to the foot. Were

you able to ascribe any source to that pain? ... I think

there you would be looking more at the - either at the

lumber region, at the lower back, or indeed a local hip

injury, an orthopaedic problem.

And finally she described headaches which affect either

the back of the head on both sides, or make her feel as

though the top of her head is going to lift off. The

headaches have a throbbing quality. Was the nature of the

headaches that she described consistent with the sort of

headaches other patients have described in circumstances

similar to Mrs Burbury's? ... Yes, sir.

There is nothing unusual about the claim given the nature

of the injury? ... No, sir, no."

61. By the time the cross-examination had concluded it is fair to say that Mr Southby's views were not greatly at variance with those of the plaintiff's own medical witnesses. He agreed (inter alia) that it would be unwise for Mrs Burbury to work on a fishing boat or as a hotel housemaid as she would be unfit for both occupations.

62. Mrs Burbury developed breast cancer in 1991. Evidence of the nature and extent of this cancer and its likely effect upon her longevity was given by Mr Robert Linacre, and a consultant physician Dr Raymond Lowenthal. In essence they both confirmed that the cancer had no causal link to the motor accident but that the statistical odds in favour of Mrs Burbury's long term survival were considerably better than those suggested in the generalized views expressed in a proof of evidence prepared by Mr Brodribb, a surgeon engaged by the defence. Mr Linacre, who surgically removed Mrs Burbury's breast tissue in a total mastectomy on 13 August 1991, found one of four lymph nodes was affected by cancer cells. This was a low node. According to both doctors there are four principal factors which are relevant to prognostication about the spread of breast cancer. They are:

(a) the size of the original tumour;

(b) the grade of the original tumour, ie, the degree to

which its cells resemble normal breast tissue;

(c) the presence or absence of lymphatic spread; and

(d) the presence or absence of oestrogen receptors.

(a) the tumour size was 1.9 cms (ie, "earlyish" said Mr

Linacre);

(b) the tumour grade was unclear but probably about grade

2;

(c) a single low axillary lymph node was involved; and

(d) the tumour was both oestrogen and progestogen

positive.

64. These were all regarded as fairly favourable factors by both doctors. Following surgery, Mrs Burbury had chemotherapy for about six months and when reviewed by Mr Linacre in February 1994, prior to his giving evidence, he found no evidence of a recurrence of her disease. It was pointed out by both doctors that even if there was a recurrence, whether in the breast or some other part of the body, the disease would still be treatable if detected early and even if untreated, she may survive for a considerable period.

65. Taking into account Mrs Burbury's history and progress to the date of trial, Dr Lowenthal, who had assessed her chances of recurrence of breast cancer at about 50 per cent in his report of 4 October 1993 (P77), revised those odds in the witness box, stating that at the present time her chances of sustaining a recurrence are about 35 - 40 per cent. The odds given by Mr Linacre were quoted in a somewhat different way by saying that her chances of survival in five years' time are about 80 - 85 per cent. Mr Linacre rejected the suggestion put to him in cross-examination that, ignoring the injuries caused in the accident, hard physical work of the kind undertaken by Mrs Burbury on the "Imlay Star" would be beyond her capacity after the mastectomy except for a reasonable period for recovery and convalescence.

66. Other factors suggested by Mr Kable as impinging adversely upon Mrs Burbury's future earning capacity were as follows, viz:

(a) on her own admission she would not have continued

working on a fishing boat after her husband's retirement;

(b) her husband may have had to cease fishing not only in

consequence of retirement due to advancing age, but also

if he were to be severely disabled or injured, either as

the result of his degenerating back condition (which ante

dated the accident) or his involvement in some other

unforseen mishap or disaster.

67. In my opinion these are both legitimate considerations and must be taken into account although it may be observed that if Mrs Burbury were to be deprived of an opportunity to earn income in the fishing industry there may have been other occupations where she could have sought and obtained paid employment if she had not been injured in September 1986. It was fairly conceded, I think, that the fact that she had undertaken full time parental responsibilities for her grand-daughter Sherrie since the accident did not suggest that she would have given up her active involvement in the fishing industry for this purpose if the accident had not occurred - it is just impossible to say whether she would have undertaken these responsibilities if she had been fishing at the time the relevant circumstances arose. It was also conceded that the mere fact that she and her husband are now jointly caring for Sherrie does not necessarily mean that their respective disabilities have been overstated.

68. On the other hand, reliance was placed by the defence upon three sections appearing in an affidavit jointly sworn by both plaintiffs on 12 August 1992 (D23) in relation to custody proceedings in the Family Court of Australia in which the following statements appear:

"(2) The Respondents ... (ie the Burburys)

...

(e) Deny that the Respondents are in poor health, or

suffer from a physical condition or restriction with

respect to the proper caring for the child.

...

(16) That we both enjoy good health and suffer no

physical impediment which restricts us in any way to

devoting our full time care to the child, Sherrie Marie

Burbury.

...

(18) That it is not and has never been our intention to

leave Tasmania or to move from our new home."

69. Paragraph 18 was contrasted with the evidence of both plaintiffs that they left Tasmania intending to live in Queensland in 1989, a fact confirmed by statements made to Mr Binns and Mr Duffy at about that time, but I think the reference to the "new home" in par18 of the affidavit may tend to introduce some ambiguity into par18 which robs it of the effect claimed by the defence. On the other hand, pars2(e) and 16 are less readily explained or rationalised in light of the significant disabilities claimed to now exist by both plaintiffs and, accordingly, it must be concluded that they have each shown a capacity to bend the truth somewhat to their own perceived advantage. I have taken these considerations into account along with other factors in assessing the creditworthiness of both plaintiffs.

70. A claim for exemplary damages formed no part of the female plaintiff's original claim but by an amendment to the particulars made during the course of the trial, Mrs Burbury sought exemplary damages against her husband alleging that such damages were recoverable as a consequence of the manner in which the solicitors for the MAIB had conducted themselves during the progress of the litigation.

71. It was not disputed that exemplary damages may be recoverable in a proper case notwithstanding that the tort in respect of which they are claimed is a tort other than defamation and also notwithstanding that the defendant against whom they were claimed may be entitled to complete indemnification in respect thereof pursuant to a compulsory insurance scheme (see Lamb v Cotogno (1987) 164 CLR 2 and Coloca v BP (Aust) Ltd [1992] VicRp 74; (1992) 2 VR 441). No argument in opposition to the current claim was based on the fact that the claim for exemplary damages had nothing to do with either the circumstances of the accident itself or Mr Burbury's conduct before or after that event, but depended rather upon what the solicitors representing the MAIB had done in July 1993, nearly seven years afterwards. It seems to me to be very doubtful whether exemplary damages would be recoverable in such circumstances, notwithstanding the fact that the High Court apparently saw no impediment to granting Mr Cotogno exemplary damages in respect of Mr Lamb's conduct subsequent to the relevant act of driving which gave rise to the action for trespass to the person in that case. (See Lamb v Cotogno (supra)).

72. As I have already mentioned, Mrs Burbury sustained a whiplash type of injury to her neck in the accident. She worked in partnership with her husband upon their jointly owned fishing boat "Imlay Star" at the time of the accident. She was physically healthy, fit and strong and performed a good deal of hard, manual work on the boat. Since the accident, in consequence of her injuries she has been unable to resume this occupation and that she is now unfit for any paid employment. As she is only 45 years of age at the present time it is plain that my assessment that she has been permanently incapacitated by the accident will support a significant claim for damages for lost earning capacity, as well as for future expenses and other components based upon her reasonable pre-accident expectation of long life and good health. It was obviously germane to these issues for the solicitors on both sides to consider whether or not she would have continued to enjoy good health and be involved in gainful employment if the accident had not occurred.

73. On or about 8 July 1993 Messrs Murdoch Clarke Cosgrove and Drake, solicitors for the MAIB, and nominally for the defendant Barry Burbury, delivered to Messrs Gunson Pickard and Hann, solicitors for the plaintiff, a proof of evidence prepared by Mr Ashton Denehey, a partner in the firm, after consultation with Mr Robert Brodribb, a general surgeon, in the following terms:

"Proof of evidence of ROBERT BRODRIBB, general surgeon:-

Cancer of the breast has a largely unpredictable course,

some patients dying from the disease within a year of

diagnosis, and others living for several decades and

dying from other causes. Patients with axillary lymph

node deposits have a higher risk of dying from their

disease than those in whom the axilla is clear. 70% -75%

of those with a clear axilla have no recurrence after

primary surgery compared with 25% - 30% of those with

deposits in the axillary lymph nodes.

Axillary lymph node deposits, therefore, are associated

with a less favourable prognosis.

Recurrence of breast cancer following surgery may occur

at any time even after twenty years from the time of

surgery. About half the recurrences occur within the

first three - five years but recurrences will continue to

occur during the next fifteen or twenty years. Cure of

the disease in the presence of lymph node deposits is

therefore almost impossible to predict.

A patient with cancer of the breast and secondary

deposits on the axillary glands has a greater chance of

recurrence than a patient where the axillary lymph nodes

are not involved."

74. Upon receipt of this proof of evidence Mrs Burbury's solicitors dispatched a copy thereof to their client with a letter in the following terms:

"The solicitors for the Motor Accidents Insurance Board

have forwarded to us the enclosed proof of evidence by Dr

Robert Brodribb, a general surgeon. This has obviously

been delivered in respect of the issue as to your

potential life span as a result of the breast cancer that

you have contracted. We do not know whether what Dr

Brodribb says is correct. Do you wish us to refer the

proof to your own treating surgeon to see what he has to

say about it or would you prefer to do so? Would you

please advise us."

75. Upon receipt of this letter and the enclosure, Mrs Burbury became deeply distressed, interpreting Mr Brodribb's words as indicating that her life expectancy was less than she had been led to believe it was by Mr Linacre and that there was a good chance that the cancer would recur in future. Apparently she had believed that she had an 80 per cent chance of full recovery, although she realised a final opinion as to her prospects would not and could not be given until five years after the operation. She consulted her general practitioner for reassurance and was prescribed tranquillisers to calm her down. Mrs Burbury said that she contemplated suicide and that she has remained distressed by the incident until the present time. She says that despite reassurance by her own medical advisers that she has a good prognosis, she has developed a lack of confidence in their advice and she has remained doubtful about such advice ever since. Mrs Burbury and her husband attempted to contact Mr Brodribb to discuss the proof of evidence with him. However, he advised them that he was not prepared to do so. They also contacted the "Mercury", a local newspaper, and were instrumental in the publication of an article criticising the MAIB's conduct of the litigation (see Exhibit D18). A complaint was made to the Law Society of Tasmanian in respect of Mr Denehey's conduct in supplying Mr Brodribb's proof in the form in which it was provided, and a further complaint was apparently made to the Ombudsman, but for what purpose is unclear.

76. Whilst I do not doubt that Mrs Burbury was distressed to receive the proof by Mr Brodribb, I think that a significant part of the reaction exhibited by both Mrs Burbury and her husband, had its genesis in their sense of frustration that their cases were proceeding far too slowly, and their joint belief that the delay was being caused deliberately by the MAIB and/or Murdoch Clarke Cosgrove and Drake. An agreed chronology of events detailing pre-trial procedures undertaken between December 1991 and June 1993 and a further chronology listing the medical examinations and reports provided in respect of Mr Burbury's claim does not substantiate such beliefs. Nor, in my opinion, can it be concluded that either the MAIB or Mr Denehey concocted the proof by Mr Brodribb for the purpose of causing anguish or distress to Mrs Burbury or so as to break her will and thereby oblige her to accept an inadequate out of court settlement. In the case of In re a Solicitor (List B unreported 31 July 1969) Cosgrove J discussed the nature and purpose of a proof of evidence. He said:

"What is a proof of evidence? The Oxford English

Dictionary gives this meaning 'A written statement of

what a witness is prepared to swear to.' I accept that,

with this distinction - that a proof is a document

prepared by a solicitor and it is therefore a statement

of what the solicitor believes the witness will swear to.

In the ordinary sense a proof is prepared by a solicitor

for a barrister to enable him to advise, or to lead

evidence from a witness. It used to be headed 'AB to

prove:' It is not normally signed, although a solicitor

may prevail upon the witness to sign it in certain

circumstances, eg, when he fears the witness may turn

hostile in the box. In the sense in which it is used in

O40, r5, it is the same sort of document - one prepared

by a solicitor giving the substance of the evidence which

he believes the witness will give at the trial. It is a

warning to the opponent to be ready to meet such

evidence. The purpose of the rule is to give one's

opponent adequate time to consult his client and if

necessary, an expert in the same field so as to be able

to cross-examine the witness, if he is called, and, in an

appropriate case, to contradict him. It is not an

undertaking to call the witness, it is not evidence, and

it is not an assertion that the witness has expressed

that opinion to the solicitor. It is not vouched for as

something upon which the opponent can rely, either as to

the opinion or the fact that it has been expressed."

77. The proof was one which Mr Brodribb himself apparently approved and I have no reason to doubt that it expressed his genuine and considered opinion on the matters mentioned therein. It was accepted that Mr Brodribb was a surgeon with the relevant expertise and competence to express the opinions which he did. Whilst the plaintiff's witnesses, Mr Linacre and Dr Lowenthal, did not completely agree with all that was stated in the proof, they did agree with the substance of what was said. They also agreed, and this is quite apparent also to a non-expert reading the document, that the proof contains a generalised dissertation upon breast cancer and its sequelae and does not purport to be an expression of a prognosis for Mrs Burbury specifically.

78. It is noteworthy that Mrs Burbury's own solicitors saw fit to forward a copy of the proof to her without comment or reassurance. They simply asked for her instructions. Presumably they saw no reason to anticipate she would react as she did. They had already received a report from Dr Lowenthal dated 5 April 1993 (Exhibit P76) although I note that this dealt with the question of causation of the breast cancer rather than Mrs Burbury's long term prognosis, and Mrs Burbury herself had received a report from Mr Linacre dated 23 July 1992 (Exhibit P60) which was intended for use by her in respect of a custody claim relating to her grand-daughter Sherrie. It is also worth mentioning that in their letter to Dr Lowenthal dated 23 September 1993 (Exhibit D10) Gunson Pickard and Hann referred to Dr Brodribb's proof, correctly I think, as "very general in nature". In my opinion there is no reason to suppose that Mr Brodribb's proof did other than incorporate a bona fide expression of his opinion as to the factors bearing upon the prognosis for breast cancer generally and I am somewhat at a loss to understand why Mrs Burbury underwent such a serious reaction as she did. As I have said I think that this was in part due to frustration and resentment based upon her perception of the MAIB and Mr Denehey as the b 1/2tes noir who were unnecessarily manipulating the proceedings to her disadvantage, but even if I am in error as to this I can only consider her reaction as bordering on the irrational.

79. Mr Gunson submitted that as the plaintiff's solicitor he had an unqualified obligation to send a copy of the proof to his client and thus, in doing so, there was in effect no break in the chain of causation between the supply of the proof by Murdoch Clarke Cosgrove and Drake and its damaging effect upon his client. I remain unpersuaded as to this. If a solicitor receives material which might reasonably distress a client there are tactful and discreet ways and means of dealing with it which will minimise or obviate any such effect.

80. When called upon by the Law Society to explain his conduct in relation to supplying the proof, Mr Denehey provided a very detailed analysis of the litigation and the factors which caused him to seek Mr Brodribb's advice and to prepare and supply the proof in the form that he did. This document became Exhibit P121B. There is no need to discuss its contents in detail. Whilst Mr Denehey did not give evidence at the trial, I see little reason for him to have done so. There is no basis for disputing what he has said in Exhibit P121B as to his reasons and motives for taking the action complained of and I am prepared to accept the facts stated by him in that letter pertaining to his reasons for the preparation and dispatch of the document.

81. With the aid of hindsight it is possible to suggest other ways in which he may have gone about the task of finding out the extent to which Mrs Burbury's cancer may have affected her life expectancy but this is a far cry from attributing improper conduct or motives to him. The plaintiff's claim for exemplary damages is couched in the following terms in the particulars:

"The Plaintiff claims exemplary damages from the First

Named Defendant as a result of severe mental stress

caused to her by the First Named Defendant's then agents

the legal firm of Murdoch Clarke Cosgrove and Drake ('the

solicitors') whereby the solicitors acted:-

(a) in a humiliating manner towards the Plaintiff;

(b) in wanton disregard for the Plaintiff's mental health

and welfare;

(c) in a high-handed fashion towards the Plaintiff;

(d) in a malicious manner towards the Plaintiff;

(e) in a cruel manner towards the Plaintiff;

(f) in an insolent manner towards the Plaintiff;

(g) in contumelious disregard for the Plaintiff's rights;

and

(h) in contumelious disregard for the Plaintiff's mental

condition."

82. It was properly conceded by counsel for the plaintiff that the views expressed by Lord Denning MR and Lord Wilberforce in Whitehouse v Jordan (1980) 1 All ER 655 and (1981) 1 All ER at 276, respectively, are not directly applicable in Tasmania and that it would not be improper for a practitioner to spend time with an expert to prepare a proof of his evidence for delivery to the opposing side in accordance with the Rules of Court, O40, r5. It was strongly argued however that a proof should not be misused or corrupted or used for an improper purpose. I do not disagree with that proposition, indeed I strongly support it, but in my opinion there is no basis for concluding that Mr Brodribb's proof was corrupted or misused in the present case. It was submitted that Mr Denehey could have sought direct access to Mrs Burbury's medical advisers or applied to have her medically examined pursuant to the Evidence Act 1910, s25 if he had wished to learn more about her condition. It is plain that Mr Denehey adverted to both these possibilities but concluded, whether rightly or wrongly, that neither course was appropriate in the circumstances.

83. Exemplary damages are intended to punish and deter reprehensible conduct by a tortfeasor. Assuming, without deciding, that such damages could be awarded in this case if it were to be shown that the MAIB's solicitors exhibited a contumelious disregard for Mrs Burbury's feelings and welfare, I must say that I am quite unpersuaded that any such state of affairs existed. In my opinion this component of the female plaintiff's claim must fail.

GRIFFITHS V KERKEMEYER - CAN THE PLAINTIFF RECEIVE DAMAGES IN RESPECT OF GRATUITOUS SERVICES RENDERED BY HER HUSBAND?

84. This case raises for decision an issue which was adverted to, but not resolved, in MAIB v Pulford and Jones Serial No A43/1993 (unreported, available on SCALE). Although I have determined that Mr Burbury's manner of driving was not negligent, the fact remains that in his wife's action he is the sole defendant against whom judgment has been entered. It has not been contended that this judgment should be set aside or that I can, or should, approach the assessment of damages in her case on any basis other than one which assumes that he was the sole tortfeasor and is liable to indemnify her in respect of her losses.

85. The question therefore arises whether her claim for compensation for the voluntary provision of domestic services by her husband is recoverable. If he is the tortfeasor who caused her loss, has he not mitigated her loss by providing those services himself, and would she not be provided with double compensation if she were to receive not only the benefit of such services as he has provided and will provide in the future, but also cash compensation from his insurers based upon the value of such services?

86. This is a problem which has arisen for decision in Australia on a number of occasions since 1976. Cox J referred to most, if not all of the relevant cases in his judgment in Pulford's case. Until the decision of the Court of Appeal of New South Wales in Lynch v Lynch (1991) 25 NSWLR 411, the consistent attitude of the Australian courts had been that a plaintiff would indeed receive double compensation if permitted to recover in this way and consequently that damages which would otherwise have been recoverable must be reduced.

87. Strangely enough, the same problem does not appear to have arisen in Britain before Hunt v Severs (1993) 4 All ER 180 (CA) and [1994] UKHL 4; (1994) 2 All ER 385 (HL). The English Court of Appeal (which was not referred to the Australian authorities), concluded at 191 of its judgment:

"Where services are voluntarily rendered by a tortfeasor

in caring for the plaintiff from motives of affection or

duty they should in our opinion be regarded as in the

same category as services rendered voluntarily by a third

party, or charitable gifts, or insurance payments. They

are adventitious benefits, which for policy reason are

not to be regarded as diminishing the plaintiff's loss."

88. It is not difficult to regard such an approach as fair and reasonable and indeed preferable to a rule which would see the plaintiff's quantum of damages depend upon her foresight in securing the gratuitous services of someone other than the tortfeasor or by entering into a legally binding contract to pay for such services prior to trial, ie, the very practices which were criticized in Donnelly v Joyce (1975) QB 454 and which led in Australia to the rule in Griffiths v Kerkemeyer.

89. The Australian cases referred to by Cox J in MAIB v Pulford (supra) were cited in argument to the New South Wales Court of Appeal in Lynch v Lynch (supra), but were not referred to in the principal judgment of Clarke JA with whom the other members of the Court agreed. Clarke JA's approach was similar to that which was later taken by Sir Thomas Bingham MR in the Court of Appeal in Hunt v Severs (supra). At 419-420 Clarke JA said:

"In this case the relevant loss which the respondent

suffered was the accident-caused need for nursing and

allied services. She should be compensated for that loss

unless there are relevant considerations, such as, the

character of the benefit the respondent received, which

should lead the court to reject the claim.

Here there are competing considerations. On the one hand

there is a difficulty in accepting a principle pursuant

to which A, to whom services are provided by her mother

who is not the defendant, is awarded $X and B, whose

services are provided by her mother who is the defendant,

is awarded nothing. In both instances the plaintiffs are

blameless and their needs are, as I assume, identical.

On the other hand if recovery is permitted the defendant

is, in theory, required to pay, in effect, twice once

for the cost of the services and once in the labour

expended in performing the services."

90. Hunt v Severs went on appeal to the House of Lords and the Court of Appeal's decision was reversed.

91. Mr Kable submits that I am bound to follow the House of Lords. However, since the High Court's decision in Cook v Cook [1986] HCA 73; (1986) 162 CLR 376, I think this proposition may be open to question. At 390, Mason, Wilson, Deane and Dawson JJ said:

"The history of this country and of the common law makes

it inevitable and desirable that the courts of this

country will continue to obtain assistance and guidance

from the learning and reasoning of United Kingdom courts

just as Australian courts benefit from the learning and

reasoning of other great common law courts. Subject,

perhaps, to the special position of decisions of the

House of Lords given in the period in which appeals lay

from this country to the Privy Council, the precedents of

other legal systems are not binding and are useful only

to the degree of the persuasiveness of their reasoning."

92. Nonetheless decisions of the House of Lords are entitled to, and deserve, the greatest possible respect and unless in conflict with substantial Australian authority or a decision of the High Court, should normally be followed by a judge sitting at first instance in Tasmania.

93. Unfortunately a choice whether or not to follow the House of Lords is not clear cut in the present case. I say this because there appears to be a degree of conflict between the approach of that Court and the approach of the High Court in Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327. In Van Gervan's case the joint judgment of Mason CJ, Toohey and McHugh JJ at 332-333, the following passage appears:

"Thus, the important difference between the judgment of

Gibbs J and the judgments of Stephen and Mason JJ in

Griffiths is that, while Stephen and Mason JJ were of the

opinion that the plaintiff's damages are to be calculated

by the need for the services, Gibbs J thought that that

was a necessary but not a sufficient condition of

liability. In the opinion of Gibbs J (Griffiths (1977),

139 CLR, at p 168), the satisfaction of the need is not

sufficient unless the need 'is or may be productive of

financial loss'. But to add this requirement is to go as

close as is possible to treating the claim as a claim for

special damages. Yet the Griffiths v Kerkemeyer doctrine

was only made possible by rejecting the established

common law rule that, in an action for damages for tort,

the reasonable cost of services required as the result of

the tort is a claim for special damages and can only be

recovered if the plaintiff has a legal (or perhaps a

moral or social) obligation to pay for them (Blundell

(1956), 96 CLR, at pp 79-80, 92). As Stephen J pointed

out in Griffiths ((1977), 139 CLR, at p 179), the

principle laid down in Donnelly 'deprives of all

substantive significance the distinction between special

and general damages: if a plaintiff's accident-caused

need is the loss to be compensated, the reasonable cost

of satisfying that need being only a means of quantifying

the damages to be awarded, the distinction between these

two kinds of damages becomes unreal'.

Although the judgment of Gibbs J in Griffiths has

frequently been cited as though it contained the ratio

decidendi of Griffiths (see Johnson v Kelemic, (1979)

FLC 90-657; Kovac v Kovac, (1982) 1 NSWLR 656; Maiward v

Doyle, (1983) WAR 210; Carrick v The Commonwealth, (1983)

2 Qd R 365), it was a dissenting judgment on the point of

principle. Significantly, in Nguyen (1990) 169 CLR, at p

262, Dawson, Toohey and McHugh JJ interpreted Griffiths

as holding that 'the plaintiff's loss ... was represented

by (his) need'.

Consequently, it should now be accepted that the true

basis of a Griffiths v Kerkemeyer claim is the need of

the plaintiff for those services provided for him or her

and that the plaintiff does not have to show, as Gibbs J

held, that the need 'is or may be productive of financial

loss'."

94. By contrast, Lord Bridge who delivered the principal judgment in Hunt v Severs (supra) in the House of Lords said at 394:

"Thus, in both England and Scotland the law now ensures

that an injured plaintiff may recover the reasonable

value of gratuitous services rendered to him by way of

voluntary care by a member of his family. Differences

between the English common law route and the Scottish

statutory route to this conclusion are, I think, rarely

likely to be of practical importance, since in most cases

the sum recovered will simply go to swell the family

income. But it is nevertheless important to recognise

that the underlying rationale of the English law, as all

the cases before Donnelly v Joyce demonstrate, is to

enable the voluntary carer to receiver proper recompense

for his or her services and I would think it appropriate

for the House to take the opportunity so far as possible

to bring the law of the two countries into accord by

adopting the view of Lord Denning MR in Cunningham v

Harrison that in England the injured plaintiff who

recovers damages under this head should hold them on

trust for the voluntary carer.

By concentrating on the plaintiff's need and the

plaintiff's loss as the basis of an award in respect of

voluntary care received by the plaintiff, the reasoning

in Donnelly v Joyce diverts attention from the award's

central objective of compensating the voluntary carer.

Once this is recognised it becomes evident that there can

be no ground in public policy or otherwise for requiring

the tortfeasor to pay to the plaintiff, in respect of the

services which he himself has rendered, a sum of money

which the plaintiff must then repay to him."

95. It will be noted that here emphasis has shifted from the Donnelly v Joyce line of reasoning to that which commended itself to the Court of Appeal in Cunningham v Harris and, furthermore, the House of Lords took the clear view that a successful plaintiff recovers such damages only as a trustee for the voluntary carer. This is not consistent with the High Court's approach in Griffiths v Kerkemeyer as explained in Van Gervan v Fenton (supra), and indeed, Lord Bridge at 395 acknowledged that fact in the following passage:

"I add a short postscript with reference to a number of

Australian authorities which were helpfully drawn to your

Lordships' attention. The decision of the High Court of

Australia in Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

adopts in substance what I may call the principle of

Donnelly v Joyce. Since then there has been a

significant number of Australian decisions, both reported

and unreported, rejecting claims by injured plaintiffs to

recover the value of gratuitous services rendered to them

by defendants. The reported decisions to this effect by

single judges are Gowling v Mercantile Mutual Insurance

Co Ltd and Gowling (1980) 24 SASR 321, Jones v Jones

(1982) Tas R 282, Gutkin v Gutkin (1983) 2 Qd R 764 and

Maan v Westbrook (1993) 2 Qd R 267. To the like effect

are the decisions of the Full Court of the Supreme Court

of Western Australia in Snape v Reid (1984) Aust Torts

Rep 80-620; and of the Full Court of the Supreme Court of

Tasmania in Motor Accidents Insurance Board v Pulford

(1993) Aust Torts Rep 81-235. The only contrary decision

is that of the Court of Appeal of New South Wales in

Lynch v Lynch (1991) 25 NSWLR 411. In this case the

court's reasoning was expressly related to the

circumstance that the claim arose out of an accident

which was the subject of a particular statutory

compulsory insurance scheme. I do not think it would be

helpful to encumber this opinion with a detailed

examination of the case. I am content to say that I

agree with the criticism of the decision by the Full

Court of the Supreme Court of Tasmania in Motor Accidents

Insurance Board v Pulford, who declined to follow it."

96. For my part, I think there is much to be said for the approach of Sir Thomas Bingham and Clarke JA. In MAIB v Pulford (supra) I described Lynch v Lynch (supra) as presenting a "pragmatic but eminently sensible approach" and I still subscribe to that view. It is easy to lose sight of the fact that in the case of husband and wife or others in a close domestic relationship the services rendered by one who is a tortfeasor to another who is a seriously injured plaintiff are regarded by neither as a mitigation of the tortfeasor's responsibility to pay damages. Moreover the provision of such services gratuitously is frequently necessitated by mutual financial hardship flowing from impoverished circumstances resulting from the accident, and continuing, sometimes for many years until the court brings down its judgment or the action is settled. Therefore the analogies of the supplier of the wheelchair, the panel beater and fence repairer referred to in Hunt v Severs are not really apposite because if tortfeasors such as these gratuitously supply their labour and services it may be assumed, in the absence of proof to the contrary, that they are intentionally doing so to mitigate the claim or potential claim against them, ie, they are deliberately paying in kind rather than cash to reduce the claim. In the case of the relative or spouse tortfeasor who is merely extending or increasing previously rendered domestic assistance to cope with the plaintiff's incapacity, no such assumption can be made. Such services are neither sought and delivered to the plaintiff nor rendered by the defendant on the basis that by so doing the defendant is achieving, or the plaintiff is effecting, a partial release of any damage's claim which the plaintiff may have. I think the policy embraced by the English Court of Appeal and the New South Wales Court of Appeal has much to commend it.

97. The contrary point of view is founded upon an attractive process of logic, but one which is based upon a premise which appears to me to equate a Griffiths v Kerkemeyer claim with a claim for special damages. The High Court has made it plain that it should not be so regarded.

98. Nonetheless, the only decision of authority which directly supports the view to which I incline is Lynch v Lynch. The other decisions are all to the contrary. The most recent, the House of Lords, directly disapproves of Lynch and supports the view of Cox J in the Full Court in MAIB v Pulford. In Maan v Westbrook (1992) 2 Qd R 267 Thomas J declined to follow Lynch v Lynch (supra) saying at 268:

"I do not think that the fundamental structure of civil

proceedings and a fundamental rule in the assessment of

damages ought to be compromised by considerations of the

kind mentioned in Lynch. If justification is sought in

legitimate social engineering, I venture to doubt whether

the allowance of such damages produces fairer

consequences on the whole"

99. In my opinion, the weight of authority is clearly in favour of disallowing this part of the plaintiff's claim and that is the course which I propose to take. The female plaintiff may not be entirely without a remedy. As I have acquitted Mr Burbury of negligent driving she may be entitled to recover all or some part of the loss she claims to have sustained in an action against her former solicitors.

100. Mrs Burbury's main source of household help at the present time is her husband Barry but as I have already ruled, she cannot recover any damages in respect of the services which he renders to her. However Mr Gunson has asked that I assess the extent of Mr Burbury's assistance to his wife so that a new trial will not be necessary in the event of a successful appeal from my decision. That seems to me to be a perfectly reasonable request and in accordance with usual practice. Mr Kable submitted that both Mr and Mrs Burbury had grossly overstated the level of assistance which she requires in claiming that he provides her with 23 hours' assistance at the present time. He pointed out that in her letter to her solicitors, Piggott, Wood and Baker on 29 May 1988, in which she commented on draft particulars prepared by them in which they suggested a claim of three hours per week ($30), she had said:

"The amount of assistance I need long term is hard to

ascertain because when my daughter in law is not here my

husband has been available to do the things I am unable

too (sic), if and when my husband is unavailable due to

work etc the level of assistance I would require may

indeed be more than the 3 hours per week ($30) mentioned

in your draft claim."

101. Mr Kable's point appears to be that Mrs Burbury did not repudiate three hours per week as totally inadequate but, by the same token, she did not accept it either. I do not see this document as necessarily confirming or demonstrating a present desire by the Burburys to falsely inflate their claim but, nonetheless, I have concluded that 23 hours per week is an excessive claim. Like Mr Hunn, the neurosurgeon, I would have considerable difficulty in accepting that she needs Mr Burbury's assistance for 23 hours per week to perform that part of the housework which she is incapable of performing.

102. If she had declared herself incapable of performing all household tasks requiring use of the arms and shoulder girdle due to the intense pain created thereby, and I were to accept that evidence, it may have been possible for me to accept that those tasks would have to be performed by an able bodied person and that compensation at a proper commercial rate for about 23 hours per week should be allowed. But the evidence of the plaintiff and her medical advisers does not permit such a finding. The plain fact is that she performs the greater part of the housework, albeit more slowly than before and certainly at a cost to her of pain in the neck, arm and shoulder blade. I really think that an allowance of about 7 hours per week would be closer to the mark. On the other hand of course, by performing these tasks herself, and it is entirely reasonable that she should do so, she brings on pain, including headaches, with the attendant necessity for analgesics and the concomitant of stress and unhappiness, thus enhancing her claim for a generalised award for pain, suffering and loss of amenities. It is rarely possible to be completely accurate in a matter of this kind but taking into account the findings I have made as to Mrs Burbury's capacity to perform household tasks, albeit slowly and with difficulty, I think an allowance under this heading of more than 7 hours per week could not be justified.

103. What I have said as to Mr Burbury's assistance to his wife disposes of her claim to the present time but the question must be asked. "What of the future?" Can it reasonably be inferred that Mr Burbury will continue to provide for his wife's needs in the years to come? On the basis of his age and their respective life expectancies is she likely to outlive him and thus need household assistance after his death? Some evidence was given which tended to show that their marriage was in trouble and, indeed, that she had contemplated suicide but in my opinion although their relationship has changed for the worse since the accident, there is no real basis for concluding that separation or divorce is likely and, as for suicide, as Mrs Burbury herself acknowledged, her obligations to Sherrie would rule that out. On the other hand why should I assume that Barry will continue to provide services in the future. Both plaintiffs are now aware that in my opinion so long as Barry provides the services Mrs Burbury's claim will be commensurately diminished. Regardless of whether I award Mrs Burbury a sum to compensate her for the future cost of domestic services or not she may well decide to hire regular household help two or three mornings per week now that she has had her damages assessed and knows that she will have a substantial amount of money at her disposal, indeed I think it highly likely that she will do so. In these circumstances I think it reasonable to allow her a sum in respect of future Griffiths v Kerkemeyer assistance based upon a need for seven hours per week at a cost of $10.50 per hour for 35 years (assumed life expectancy) but diminished both by the usual 3 per cent for present payment and reduced by a further 20 per cent for contingencies.

104. It will be noted as the reader progresses through these reasons, that I have varied the contingency factor in respect of Mrs Burbury's claim when I am dealing with different aspects of damages.

105. Whilst I consider 15 per cent to be an appropriate reduction factor in respect of part (ii) of her future earning capacity, I consider that a higher percentage should apply when dealing with assumed costs and expenses spread over the whole life span (see Overland Sydney Pty Ltd v Piatta (1992) Aust Torts Rep 81-191). My assessment for Mrs Burbury's future Griffiths v Kerkemeyer entitlement is therefore $10.50 x 7 x 1138 = $83,643 less 20% = $66,914.40.

SUE ANNE BURBURY AND BARRY BURBURY - GRIFFITHS V KERKEMEYER CLAIM COMMON TO BOTH ACTIONS

106. Mrs Burbury and her husband were both totally disabled for a period of two or three months immediately following the accident. Their son Michael and daughter-in-law Penny, who had been visiting them at Dover, had left to return to their home on the North West Coast shortly after the Burbury's left to travel to Hobart on the day of the accident. As luck would have it they came upon the accident scene as they travelled up the main road towards Hobart. Penny and Michael returned to Dover and provided full housekeeping assistance for their injured parents until approximately Christmas 1986. It was suggested by defence counsel that Penny Burbury being pregnant at the time, would not have been able to provide the sort of nursing and housekeeping assistance that Sue and Barry Burbury required. However I do not accept this proposition. I am satisfied on the whole of the evidence that Penny and Michael gave considerable assistance to their parents during their time of need. Penny did the housework, cooking, cleaning, washing, ironing and so forth whereas Michael looked after the garden, the lawns and wood chopping. Furthermore the "Imlay Star" was on the slip at the time of the accident and Michael therefore had the responsibility of sanding, painting and anti-fouling it, getting it back in the water and performing all the other maintenance tasks necessary to put it into good condition for the following season. Michael also drove his mother and father to Hobart for medical treatment on a number of occasions and took his mother for physiotherapy treatment locally. Mrs Burbury claimed in her evidence that Penny and Michael each performed about thirty-five hours work per week. Mrs Burbury's mother, Mrs Hawkes, came down from Sydney at Christmas time (21 December 1986) to take over the domestic chores from Michael and Penny. This she did for approximately two months. During this period of time she assisted around the house doing the washing, ironing, cleaning and so forth. Mrs Burbury estimates that her mother would have been working in this way for about thirty-five hours each week. Following Mrs Hawkes return to Sydney on 22 February 1987, Michael and Penny returned to Dover and then continued to render assistance of the same kind as they had before for two weeks every month over a total period of about fourteen months. During this period Mrs Burbury estimated Penny was working about twenty hours a week and Michael about ten to fifteen. Mrs Burbury enumerated Michael's tasks as follows; chopping the wood, mowing the lawn, checking the boat, chauffeuring, all the odd jobs, the errands, purchasing the groceries and any maintenance work that needed doing on the boat or the house. She paid them nothing for their work and labour but she did reimburse them for the cost of running their motor car to and from Devonport and provided their living costs at Dover.

107. In September 1987 Barry Burbury entered St John's Hospital in Hobart to undergo a micro discectomy operation. Whilst he was in hospital Penny and Michael returned to Dover for a period of approximately two months to assist Mrs Burbury. During this period Mr Burbury was at home recuperating from his operation and Michael and Penny not only assisted with the housework as before, but they also assisted in manoeuvring Mr Burbury around the house. It was estimated that Penny was performing about twenty hours work a week and Michael was doing about fifteen. Mr and Mrs Burbury provided Penny and Michael with petrol money and when Mrs Hawkes came down to visit, they paid her airfares to and from Sydney, a total of between $300 and $500 per return flight. She has made a similar trip each year between 1986 and 1991. She also came over in December 1993 and on this last occasion stayed for five weeks. Her fares have been paid by Mrs Burbury on each occasion.

108. It was claimed that Michael and Penny continued to render assistance to Mr and Mrs Burbury in this way until they sold their home at Dover in May 1989. I find it very difficult to assess the amount of time during which it could fairly be said that Penny and Michael were ministering to the needs of their parents during this time. The description of the work performed does not suggest that they were both working full time but of course this has not been claimed. Moreover they continued visiting once Mr Barry Burbury had returned to sea fishing during the winter period in 1987: it was suggested by Mr Kable that this demonstrated that the claim for Penny's and Michael's services was exaggerated but this does not necessarily follow because the wood would still need chopping, the meals would still need preparation and cooking, the washing and ironing would still have to be done and so on. I think it would be fair and reasonable to assess the value of their services (combined) until 20 December 1986 (and those of Mrs Hawkes for the first Christmas period after the accident) at the rate of 35 hours per week and from then until Mr Burbury returned to fishing in 1987, which for present purposes I will take to be 25 May 1987, at the rate of 35 hours per fortnight. No claim has been made for the cost of their travel to and from Devonport although over the period it must have been considerable. Similarly no claim was made for Mrs Hawkes' travel costs. Mr Gunson submitted that I could make an allowance for these expenses in general damages but without the costs having been particularized I think this would be inappropriate. The value of providing domestic services during the relevant periods was admitted by the defence in each action. I propose to allow the following:

1 Penny and Michael - 35 hours per week 23/9/86 to

20/12/86 @ $8 per hour (to 5/10/86)

and $8.50 per hour (6/10/86 to 20/12/86)

ie (a) 1 and five sevenths weeks @ $8 per hour = 480.00

(b) 13 and one seventh weeks @ $8.50 per hour = 3,910.00

2 Mrs Hawkes - 35 hours per week 21/12/86 to 22/2/87 @

$8.50 per hour ie 9 weeks @ $8.50 per hour = 2,677.50

3 Penny and Michael 35 hours per fortnight 23/2/87 to

25/5/87 ie 13 weeks @ $8.50 per hour = 1,933.75

$9,001.25

109. There is a complete absence of documentary records which would show with precision the times when Penny and Michael attended and did work for the plaintiffs after May 1987. Taking into account the fact that their visits were only fortnightly, that Mr Burbury was absent fishing for some part of the time, that Penny had a new baby in June 1987 and the very minor consideration that the plaintiffs were absent on their Noosa trip, albeit for only a few days, and doing the best I can on the fairly generalized information provided, I think it would be reasonable to allow for the cost of gratuitous services at the rate of 25 hours per fortnight from May 1987 to the end of April 1989. I have included Mrs Hawkes' Christmas visits in both December 1987 and December 1988 in this overall assessment. I have not overlooked the fact that Penny and Michael returned to Dover for a continuous period of two months after Mr Burbury's operation in September 1987. I therefore propose to allow the following amount for the period:

4 Penny, Michael and Mrs Hawkes 25/5/87 to 30/4/89 (say)

100 weeks @ 25 hours per fortnight (to nearest dollar)

(a) 25/5/87 to 14/3/88 @ $8.50 per hour $4,463.00

(b) 15/3/88 to 30/6/88 @ $9 per hour $1,671.00 (c) 1/7/88 to 26/8/88 @ $9.50 per hour $950.00 (d) 27/8/88 to 26/2/89 @ $10.00 per hour $3,250.00 (e) 27/2/89 to 30/4/89 @ $10.50 per hour $1,181.00

110. The only other component of the joint Griffiths v Kerkemeyer claim is in respect of a Mrs Hull who used to assist in the household when the Burbury's were living at Dover and later at Blackman's Bay. She was not paid for the work which she did but it seems reasonable to make an allowance in respect thereof under the Griffiths v Kerkemeyer principle.

111. The only details of Mrs Hull's assistance were provided in the transcript at 453. They were very sketchy but I think it would be reasonable to allow $250.

112. The plaintiff Barry Burbury is aged 54 years (d o b 8 October 1939). He was 46 at the time of the accident. He left school aged 15 without any formal qualifications. His first employment was on a farm at North West Bay and from there he obtained work as a factory hand, firstly at H Jones and Co and then with Tasmanian Fish Canners. From 1957 to 1960 he was employed as a deckhand on various fishing boats. He then drove a taxi for his uncle with City Cabs and later purchased his own vehicle. He operated this successfully for two years and in 1964 moved to Sydney where he obtained work as a steel fabricator for Cutting Edge Pty Ltd progressing to foreman after about three years. It was during his six years with this company that he met and starting living in a de facto relationship with his present wife. He moved to Melbourne where he was appointed manager of a new factory by his employers. This venture proved unsuccessful however and he changed employment, taking on work as a salesman selling machinery of different kinds. Mr Burbury and his wife then moved to Tasmania where they married in 1971. He obtained work with the Egg Marketing Board in 1974 as an inspector. He held this job for five years. In 1979 he left to take up professional fishing. The family was then living at Spreyton. The first boat he used commercially was the "Sue Anne" which he purchased in 1977 and worked single handed. He subsequently purchased the "Imlay Star" and he and his wife commenced a working partnership about 1982. In 1983 they moved to Dover. He described their normal working and maintenance schedules in some detail which it is unnecessary to reproduce here. He plainly had considerable skills, not only in running and fishing his boat successfully, but also in making and repairing equipment, maintaining the engine and other mechanisms and performing routine annual maintenance tasks such as cleaning and painting the hull. Mr Burbury substantially confirmed his wife's description of the divisions of work between them and from the description given by both of them, it is clear that reasonable physical fitness was required for many of the tasks and in particular, the handling of the heavy craypots.

113. Mr Burbury claimed that he intended to continue as a fisherman "as long as possible" and that he had given no thought to when he may retire. He described his job as a "hobby as well as a living". He said that some fishermen continue working well beyond the age of 65 years, but in the Particulars of Claim, par4.6, he says "the Plaintiff accepts that he would not have been able to work beyond age 60 because of the heavy nature of the work required to be carried out by a crayfisherman". This concession was repeated in par6.1 of the Particulars but when under cross-examination at 2570 et seq, he alleged that the particulars were wrong in this respect. Notwithstanding this material and Mr Gunson's submissions that I should assess compensation for future economic loss on a basis which would reflect the real chance that the Burbury partnership would remain actively engaged in the fishing industry after Barry's 65th birthday, I think that this prospect was nothing more than a remote possibility. I think that his abnormal back was a likely source of severe future disability even before the accident, taking into account Mr Einoder's findings in 1983 and the nature of Mr Burbury's occupation. However in light of the way in which I have approached the question of future economic loss Mr Burbury's likely date of retirement from fishing has little practical effect upon the outcome.

114. In the course of the accident the Mazda rolled over and Barry Burbury's head and body were propelled through the closed sun roof. He was hanging through the roof at about waist level. He had been wearing a seat belt. It was not disputed that the accident caused a severe crushing or bursting fracture of the L4 vertebra. Mr Burbury says that he was in exquisite pain. He tried to stand and his legs would not work. The trip to Hobart by ambulance was "slow and murderous". After x-ray at the Royal Hobart Hospital he was sent back to Dover Hospital. According to entries in a diary which his solicitors advised him to keep, his pain was very severe for the first few days. On 27 September he was taken home by his son. Although I am conscious that the initial diary entries were made retrospectively, I think they are reasonably reliable. The principal source of pain appears to have been from the hips to the knees like a "huge toothache deep inside." Strong analgesics gave some relief on occasions but had a tendency to cause severe stomach pains and constipation. Sleep was difficult or non-existent. A couple of trips by car to Hobart for review by medical practitioners caused severe pain. Unfortunately the diary entries made by Mr Burbury cease on 27 October although his wife's entries in the same book continue until 23 December. Until Christmas 1986, Mr Burbury spent a good deal of his time resting on a mattress on the lounge room floor or an adjacent sofa. His son Michael assisted him in bathing and using the toilet. A masseuse from Huonville used to attend three days per week to massage his legs to prevent muscle wasting. With the approach of the crayfishing season both Mr Burbury and his wife were anxious to get fit enough to go fishing. This proved impossible however, so after an initial reluctance, they entered into an agreement with a Mr Wignall to take the boat to sea with Michael as his deckhand. I review Mr Wignall's performance in another part of these reasons.

115. Mr Burbury is unable to recall when he first went back to sea skippering his own boat. The first entry in the Log Book (Exhibit P16) suggests that it was about Friday 22 May 1987 but there is a page missing between this and the previous entries which were from August 1986. Mr Burbury suggested Wignall may have been responsible for this and in the circumstances that seems a not unreasonable explanation, although it does leave unconfirmed Mr Burbury's evidence that when he first returned to fishing he did so very cautiously, going out just for a day at a time. There appear to be no entries which directly substantiate this.

THE WHEELHOUSE INCIDENT - WAS THIS AN INDEPENDENT CAUSE OF THE PLAINTIFF'S CURRENT INCAPACITY?

116. It was submitted by defence counsel that one of the central difficulties bearing upon Mr Burbury's claim arose out of, or is highlighted by, contradictory answers which he gave in evidence-in-chief and later in cross-examination relating to an incident on board the "Imlay Star" when he tripped or stumbled against the coaming beneath the wheelhouse door. In his evidence-in-chief Mr Burbury said that this incident had occurred before he and his wife went on a holiday trip to Noosa in Queensland in September 1987. However when cross-examined Mr Burbury said he had been mistaken in giving that evidence and that, upon reflection, he could remember this mishap had actually occurred on or about 16 December 1988. He pointed out that in 1987 he was fishing on the East Coast with Mr Wisby during the period when he had originally claimed the incident occurred, but as he could now clearly recall that he was fishing with his son Michael and a Mr Barnes as deckhands, and that the incident had occurred near Standaway at Bruny Island whilst they were "on the new shellers" and that he had immediately returned to port and sought medical attention from Dr Parker, the incident must have occurred after the commencement of the crayfishing season the following year (1988).

117. Mr Kable's argument, as I understood it, was as follows. Medical opinion was unanimous that the crush fracture to the L4 vertebra apparently sustained by Mr Burbury in the course of the motor vehicle accident had healed without giving rise to any or any significant residual disability. Medical opinion attributed Mr Burbury's ongoing incapacity to return to his former occupation as a fisherman, at least in part to a prolapsed disc at L5/S1, a condition which had required surgery by Mr John Liddell, a neurosurgeon, who performed a right L5/S1 micro discectomy on 15 September 1987, during which a very large subligamentous almost free fragment of disc material was discovered. Therefore, assuming the wheelhouse incident had occurred before the trip to Noosa and that for the first time since the accident the male plaintiff began to suffer sciatic pain in the right leg immediately following the wheelhouse incident, then that incident should be regarded as the source and cause of Mr Burbury's present back disability and, in consequence, his continuing economic loss could not be attributed to the motor vehicle accident. Mr Kable submitted that my acceptance of this argument would also impinge heavily upon Mrs Burbury's claim for economic loss because, if her husband had been rendered unemployable by causes other than the accident, she would have been unable to continue earning income as a deckhand.

118. Mr Kable also argued that, notwithstanding the existence of significant medical opinion suggesting that regardless of when the wheelhouse mishap took place there was a probability that the plaintiff's spinal structures had been weakened by the motor vehicle accident, predisposing him to the very kind of disc prolapse which he in fact sustained, the evidence of Mr Hunn, a consultant neurosurgeon engaged by the plaintiff should be preferred to that of other medical practitioners. He submitted that Mr Hunn was unable to say that Mr Burbury's disc prolapse was more probably due to the motor vehicle accident rather than to pre-existing abnormalities.

119. To examine these submissions it is necessary to consider the plaintiff's medical history. Mr Burbury had consulted Mr Einoder, an orthopaedic specialist in Launceston on 11 July 1983 and received treatment for chronic backache in the lumbar/sacral area and thus it is plain that his back was far from normal before the accident, although he claims (and there is nothing to contradict him) that after Mr Einoder gave him treatment by injections his back was soon pain free and he suffered no further ill effects. This claim seems to be supported indirectly by the fact that the fishing records show only a twelve day gap between two fishing trips and that it was at this time that Mr Einoder treated the plaintiff. Mr Burbury did not attribute his loss of balance producing the stumble in the wheelhouse to any predisposing pain, weakness or other factor caused by the motor accident (cf Jenkins v Hansen and Yunken (Tasmania) Pty Ltd A2/1989 at 19, 22) and Mr Kable argued that irrespective of any weakness caused at level L5/S1 by the motor accident, the wheelhouse incident or mishap constituted a novus actus interveniens (cf Mason CJ at 517, March v Stramare (E and M N) Pty Ltd [1991] HCA 12; (1990-1991) 171 CLR 506 and Neasey J at 19, 20 of his judgment in Dawes v ANM B20/1982). Mr Kable submitted that those injuries which had been caused by the accident had ceased causing any disability at the time and that the fall in the wheelhouse inflicted a new and separate injury on Mr Burbury's spine.

120. The second limb of Mr Kable's argument would be strengthened if I were to accept that the wheelhouse incident antedated the trip to Noosa, but if Mr Burbury's mishap in the wheelhouse had not occurred until about December 1988, there could be no dispute that by then he had developed a very serious disc prolapse at L5/S1 resulting in right sided sciatica and had already undergone surgery for that very problem. There would therefore be no reason for concluding that the stumble in the wheelhouse had caused a new injury rather than a simple aggravation of a well established pre-existing condition although, the question would still remain, had the L5/S1 prolapse been caused by the trauma of the accident.

121. Mr Kable submitted that an absence of evidence from Mr Wisby, the deckhand employed by Mr Burbury in 1987, denying that the wheelhouse incident occurred whilst he was on board should lead to adverse inferences against the plaintiff's claim. I do not accept this. Had the male plaintiff continued to assert that the incident occurred at some time prior to September 1987 and that Mr Wisby was aboard the boat at the time, a failure by Mr Gunson to question Mr Wisby about it when he was giving evidence on other matters may well have created a situation from which an adverse inference could, and should, be drawn; but such was not the case.

122. The wheelhouse incident did not figure in the medical histories provided by Mr Burbury to his medical advisers before December 1988 and I am unable to attribute to him the subtle trickery which would be inherent in his having omitted that detail at or about the time of the incident and having supplied it later on to give verisimilitude to his account of it having occurred later (in 1988) when giving evidence at the trial.

123. At first Mr Burbury did not intend to call his son Michael to give evidence but when it became apparent that a failure to do so may excite adverse comment this decision was reversed. Regrettably however Michael's evidence concerning the nature of his father's mishap was sketchy and the date of its occurrence was far from clear. He did however confirm that he had been present at the time of the mishap, whenever it was, and he also confirmed that he had worked on a fishing trip with Mr Barnes on his father's boat. Mr Barnes did not give evidence although it appears that inquiries to locate him may have been carried out without success.

124. It was submitted for the defence that despite the absence of direct evidence that the wheelhouse incident had occurred before the Noosa trip, there were several strong indications from the contents of at least two of the medical reports tendered in evidence which suggested that this was indeed the case. In cross-examination the plaintiff said that he was suffering severe symptoms before leaving Tasmania (2602). In a letter to Dr P T Yeo dated 14 September 1987 (41) Mr John Liddell said:

"Approximately three weeks ago, shortly before taking a

trip to Queensland, he experienced the acute onset of

right lower limb discomfort."

125. This assertion was repeated by Mr Liddell in a report which he provided to the plaintiffs' solicitors dated 9 October 1987 (P44) and Mr Einoder made reference to the plaintiff having "jarred" his back on the boat prior to the Queensland trip but there was no evidence to justify the conclusion that the plaintiff was necessarily referring to the wheelhouse incident. At 2652 Mr Burbury said there were "quite a few" incidents when he fell down as a result of his back injury.

126. Dr Des Parker of Dover, a general practitioner, attended to the plaintiffs at the scene of the accident in September 1986 and was consulted by Mr Burbury on several occasions thereafter. In a report which he provided to Messrs Gunson, Pickard and Hann dated 21 March 1988 (P80) Dr Parker said:

"I saw him again on 17/8/87 he was taking analgesics

because of pain going down the (R) leg with pressure in

the lower abdomen. I suggested admission for traction

but he declined as he had arranged a holiday in

Queensland and felt that with sun, swimming in a heated

pool and rest he could settle down."

127. It should be noted here that about three days after arriving in Queensland for his holiday Mr Burbury experienced the onset of acute right sided sciatic pain when he lifted his right leg whilst showering. The holiday came to an abrupt and premature end as a consequence and Mr Burbury returned to Hobart where he was referred to Dr P T Yeo, a neurologist, who in turned referred him to Mr Liddell, who performed the right sided micro discectomy at L5/S1 which I mentioned above. Mr Kable points out that 17 August 1987, the day he saw Dr Parker, was three days after he had returned from a fishing trip on the East Coast according to entries in the log book. This was the first occasion that acute right sided sciatica had been mentioned in any of the medical reports. Thus, it was argued, as Mr Burbury himself had placed the wheelhouse incident as occurring prior to the Queensland trip in 1987 in his evidence-in-chief, it could and should be inferred that it was that very incident which first produced the plaintiff's right leg symptoms which were correctly interpreted by Dr Yeo and Mr Liddell as being the result of disc herniation or prolapse at L5/S1. In resolving this question it is clearly a matter for some regret that Dr Parker was not called to give evidence but it was common ground that due to advancing age he was not able to do so.

128. A finding that the wheelhouse incident occurred shortly before the trip to Noosa would clearly permit the conclusion that this event marked the commencement of the disc herniation. Furthermore as the onset of symptoms resulted from a stumble followed by a fall on to the deck of the wheelhouse, and as the stumble was not attributed to any weakness or disability resulting from the accident, the fall may have been sufficient of itself to have caused the injury to the L5/S1 disc, particularly as the plaintiff's back had been the source of chronic backache including left sided sciatica until Dr Einoder treated those symptoms by epidural injection in 1983, curing the backache and at the same time observing that x-rays disclosed minor degenerative changes of the L5/S1 disc space which was the apparent cause of the left sided sciatica. There is some force in this argument, but much of that force derives from an acceptance that the problem for which Mr Burbury consulted Dr Parker in August 1987 resulted from a fall in the wheelhouse rather than some unspecified "jarring" incident.

129. Mr Kable submitted that I should reject Michael Burbury as a truthful witness. He referred to Michael's refusal to answer questions relating to Social Security payments on the ground that his answers may tend to criminate him and his admitted conviction for an offence of dishonesty some years ago. In Dolan v AOTC [1993] FCA 202; (1993) 114 ALR 231 Spender J reviewed a number of authorities and concluded that no adverse inference may be drawn from the refusal of a witness to answer a question on the ground that the answer may tend to incriminate him, and this view was endorsed by Lee J in Pappas v New World Oil (1993) 117 ALR 310. Spender J reached his opinion in part upon the basis that to draw an inference adverse to the credit of such a witness would tend to destroy the privilege claimed but with all respect I cannot agree. The essential purpose in permitting the exercise of such privilege is to entitle a witness to refuse to furnish evidence against himself which may then be utilized in current or future criminal proceedings. It seems to me that by acknowledging that a truthful answer to a question may expose him to the risk of prosecution it is possible for the tribunal of fact to draw an adverse inference, the strength of which will no doubt depend upon the nature of any possible prosecution. Equally of course the tribunal may conclude in appropriate circumstances that such an acknowledgment is of itself some evidence of candour to be taken into account in the witness' favour. I take Mr Kable's submissions into account but in the final analysis they do not cause me to regard Michael as an unreliable witness. It was plain that his parents were loath to call him due to a family rift. The fact that he came despite this and gave evidence on their behalf is no guarantee of his honesty of course, but overall, he seemed to me to be frank and doing his best to give accurate answers. Generally speaking I accept what he told me. Whilst the state of the evidence leaves a good deal to be desired I am prepared to find on the balance of probabilities that the wheelhouse incident occurred in December 1988 and did not antedate the Noosa holiday.

130. A finding that the wheelhouse incident occurred in 1988 rather than 1987 is not an end of the matter however. Mr Kable submits that Mr Hunn's opinion amounts to no more than an acknowledgment that the motor accident may have been instrumental in causing the herniation of the L4/S1 disc and he urges me to accept that opinion in preference to all others which are to a contrary effect. However there is considerable medical opinion supporting the plaintiff's case on this issue. Mr F G Binns, an orthopaedic surgeon who treated him initially for the compression, or, as he called it a "bursting" fracture of the fourth lumbar vertebra, said in his report dated 12 April 1988 (P74):

"While his bursting fracture at the 4th lumbar vertebra

is only one level above this lumbo sacral junction"

(L5/S1) "I would consider that with the bursting injury

that he must have also sustained some further injury to

the lumbo sacral region. I think this is a reasonable

assumption but certainly cannot be proved."

131. Under cross-examination Mr Binns agreed that the word "must" in the above extract should be rejected and the word "could" used in its place (see transcript 1269).

132. Mr Liddell, who it will be remembered was the surgeon who actually performed the discectomy, and Dr P T Yeo, who saw Mr Burbury upon his return from Queensland a few days before that operation, were both very sure of a direct causal relationship between the accident and the L5/S1 disc herniation. Although Dr Yeo was unaware of Mr Burbury's previous back problems which had necessitated treatment by Dr Einoder in 1983, he steadfastly maintained the opinion expressed in his report of 7 October 1987 (P79) in which he said:

"His lesion" (the L5/S1 herniation) "is certainly the

result of the injury sustained in the motor vehicle

accident."

133. In report P44 Mr Liddell was also confident of this conclusion saying:

"The temporal relationship between the accident, and the

disc herniation is such that I believe that the disc in

question was most likely damaged in the accident, thereby

'setting the scene' for the subsequent disc herniation,

and in that respect, I believe, that the need for surgery

was indirectly attributable to the accident in question."

134. Mr Liddell expanded on this opinion in the course of oral evidence saying:

"If that flexion compression fracture was indeed the

result of a motor vehicle accident that indicated that

there were substantial forces involved at the time of the

accident, which could easily have damaged the surrounding

ligament of the disc in question - not sufficient to

cause a problem at that particular time, but certainly

sufficient to weaken it and thereby allow the herniation

of the disc material at a later date."

135. It should be noted that contrary to Mr Kable's submission that all doctors were in agreement that the crush fracture of the L4 vertebra had healed following the motor accident without giving rise to any significant residual disability, Mr Liddell was by no means sure of this. He agreed that the fracture was more properly to be regarded as a flexion compression fracture rather than a burst fracture because there were no bony fragments in the spinal canal, the posterior element of the vertebral body was not damaged and no pedicles were involved, but he was not prepared to agree that it was unlikely that Mr Burbury's present symptoms are emanating from that source. Mr Liddell did concede that he could not say the L4 fracture was the probable source of symptoms but he certainly did not rule it out as a possible cause or contributor to Mr Burbury's present condition.

136. In his report of 12 October 1993 (P88) Mr B J Einoder said:

"Although I am not able to accurately define the reason

why the patient's symptoms are so severe I do believe

that a force severe enough to crush the 4th lumbar

vertebra by 50% is also a force severe enough to cause a

multitude of other injuries within the spine that are not

measurable clinically and do not show up especially in

investigation."

137. On the other hand, in the same report he said:

"On 23/9/86 he had a severe injury to his lumbar spine

the force of which was strong enough to compress 50% of

the 4th lumbar vertebra. There is a probability that

this may further derange to (sic) the L5/S1 disc space.

It is my experience that severe injuries such as this

rarely damage the disc. This confirms the more (sic)

likelihood that the weakening of the annulus fibrosis

which contains nucleus pulposus is a degenerative

condition rather than an acute injury."

138. When giving oral evidence Mr Einoder qualified the statement contained in the penultimate sentence of this passage saying that he should have added after the word "disc" the words "unless it is already abnormal". On the basis of this modification of his opinion Mr Einoder tended to take up the position that, although the motor accident produced a severe force to an already abnormal area of the spine, he was unable to say with confidence the extent to which that insult was causative of the disc prolapse. He did say that the motor accident "in all probability would have disrupted the disc to some degree". Beyond this he was not prepared to go.

139. Mr Southby was cross-examined by Mr Gunson as to his examination and opinion in relation to Barry Burbury but I think the most significant thing which he said as to the male plaintiff's back injury was during the course of re-examination after Mr Kable, having recounted briefly Mr Burbury's medical history from 1983 onwards, asked the following question:

"Now you have thus the condition in 1983 and you have the

car accident which the reports which you've endorsed, the

conclusions in described as causing a fracture of L4.

What is your opinion as to whether it is likely that the

car accident caused any damage to L5/S1?"

"Yes, I think it is likely that if a force was subjected

to the lower back sufficient to fracture the body of the

L4 vertebra then the disc at the L5/S1, which we already

know to be degenerate, is likely to have suffered further

damage."

141. It seems to me that viewed as a whole, there is not a great deal of dispute between the doctors on this issue. They all acknowledge that severe force would be needed to crush the fourth vertebra to the extent it was. That segment of the spine is very close to the L5/S1 disc space and it is not difficult to visualize the transmission of some of that force to surrounding structures. If those structures have already undergone some degenerative changes it is not difficult to visualize such force causing further weakness in the disc leading to the herniation and acute symptoms therefrom after even minor activity or stress a few months later. I do not think that Mr Hunn's careful and cautious approach should be regarded as an impediment to a finding that, on the considerable weight of the other opinions I have referred to, it is more probable than not that the plaintiff's disc herniation and prolapse was caused by the accident and the majority, if not all of his present back symptoms and resultant disability, should also be attributed to the trauma caused by the accident.

142. To sum up, Mr Burbury had a weakness in the L5/S1 disc prior to the accident. This weakness however was on the left side and was brought under control by conservative treatment in 1983. Then came the motor accident in 1986. The injury then sustained was of a sufficient magnitude to cause severe crushing damage to the L4 vertebral body. This consideration permits and leads strongly to the inference that the surrounding and adjacent structures in the spine were severely stressed. Further damage to the L5/S1 disc was highly likely. If such damage occurred, it was insufficient to result in an immediate herniation or prolapse of the disc, otherwise symptoms which later became manifest would have occurred very shortly after the accident. Any damage which occurred to the L5/S1 disc remained asymptomatic or, alternatively, the symptoms were masked by continuing symptoms from the L4 crush fracture until Mr Burbury developed right sided sciatica shortly before his planned trip to Queensland. On the balance of probabilities I find that the event which triggered the onset of right sided sciatica was not the incident which I have described as the wheelhouse incident. It was probably some other event which caused a jarring of the spine. Having rejected the wheelhouse incident as the triggering event, there is no reason for me to assume that the actual triggering event of itself involved substantial trauma to Mr Burbury's spinal column. I think that it was only a matter of time before some relatively minor stress or activity produced major problems attributable to the damage to the disc resulting from the accident. Merely because the disc was abnormal in 1983 does not lead me to conclude that the accident played an insignificant role in causing the prolapse. It seems to me that a conclusion that the accident was a direct cause of the disc prolapse which manifested itself unmistakably in Noosa is a proper and appropriate inference to draw in all the circumstances. This involves a common sense judgment of cause and effect drawn from the whole of the relevant evidence and in my opinion would be a permissible conclusion even if none of the doctors was prepared to acknowledge it as a probability. However, as I say, there is considerable medical support for this conclusion and it is the finding which I now make.

143. In my opinion the pre-existing weakness only becomes a factor when considering an appropriate reduction of damages for contingencies. Bearing in mind the strenuous nature of his occupation as a fisherman, the susceptibility of his back to future injury having regard to the degenerative changes which were found to have occurred prior to 1983 and the generally hazardous nature of a fisherman's occupation, I am of opinion that a fairly considerable discount is required.

144. Finding as I do that Mr Burbury's present disability has resulted from the accident, it is necessary to consider the nature and extent of that disability.

145. I was urged by defence counsel to find that, although it must be conceded that Mr Burbury can no longer perform the hard physical work of which he was capable before the accident, he should have been able to continue working as the skipper of his boat. It was submitted that by selling the boat, using the proceeds of the sale for living and other expenses over the intervening years and failing to look for alternative employment, the plaintiff had unreasonably failed to mitigate his damages. The primary argument was that he should have kept the fishing business going. It was a reasonably profitable enterprise, and even though his wife was no longer able to accompany him and perform the duties of a deck hand, he could have employed a deckhand in her place and thus kept the damages for economic loss to a figure equating with the percentage share of the catch which according to prevailing industry standards would be payable to a competent deckhand. The key element of this argument is, of course, the assumption that a man with a severe back disability could continue on as skipper regardless of the disability. In my opinion this is where the argument comes to grief. The boat used in the Burbury's business was forty feet long. It was not an ocean going vessel. Comparatively small craft like this pitch and roll in a heavy seaway and sure footedness and a strong back are essential requirements for anyone travelling on board, let alone for a person with the responsibilities of command. It is nothing like standing on the bridge of a cargo ship or cruise liner. As Mr Gunson pointed out, the skipper of a fishing boat needs to get down in the engine room and chain locker and attend to other mechanical tasks if and when they arise. He is a mechanic and labourer as well as a navigator and steersman. No doubt there have been fishing boat skippers who, through pressure of financial circumstances or other reasons, have gone to sea with disabilities of one kind or another, but I would imagine they are the exceptions to the rule. It should not be forgotten that Mr Burbury did undertake several fishing trips between the date of the accident and his final abandonment of the enterprise in 1989 so it cannot be said he was completely lacking in perseverance. Mr Wisby's evidence amply supports Mr Gunson's submission that Mr Burbury was carrying on as skipper in 1987 only under very severe difficulties and Michael Burbury's evidence confirms a similar picture in 1988.

146. I think the other factor which Mr Kable has overlooked is that from the description of the workload shared by Mr and Mrs Burbury when operating the "Imlay Star" together, it was quite apparent that of necessity they both undertook a substantial amount of heavy physical work, lifting and bending, baiting and resetting the pots and so on. I think it would be quite unrealistic to expect the whole of such work to be undertaken and satisfactorily performed by a single deckhand. Perhaps two deckhands could accomplish all relevant tasks whilst a third person simply steered the boat, but once financial provision has to be made for three men to derive a livelihood from such an arrangement, it is fairly clear it would render the business unviable. It comes to this - if Mr Burbury is unable to operate his boat as an able bodied seaman, the venture ceases to be worthwhile.

147. Mr Kable submitted as an alternative that Mr Burbury could have leased his boat for a financial return based on a share of the catch. In fact Mr Burbury tried that very solution. He leased the boat to one Wignall, and Michael Burbury went along as Wignall's deckhand. They only did one trip together. The venture was a disaster. Wignall, whose seamanship obviously left a lot to be desired, wrapped the Morris line around the boat's rudder resulting in it drifting through the night out of control in gale swept seas. Furthermore, he caused damage to the hull of the boat and was plainly unsatisfactory in other respects, not the least of which was that he was apparently selling part of the catch privately and thus depriving Mr and Mrs Burbury of a legitimate part of their income. He put Michael ashore only 24 hours after leaving harbour and then disappeared without trace for about three weeks before returning to port again.

148. Not surprisingly, Mr and Mrs Burbury terminated the agreement. They were loath to try again. They knew no one they could trust with their boat. They elected to sell their house and business. I am unable to say that they acted unreasonably. Mr Kable relied on Mr Parson's evidence to support a contention that by failing to keep their boat and craypots and failing to lease them to another fisherman the Burbury's claims for economic loss should be reduced. I will deal with that submission a little later on but I note here that I do not accept it.

149. Mr Burbury returned to work on the "Imlay Star" in 1987. He was unable to provide the exact date in his evidence but it seems fairly clear from entries in the log that his first trip was nine days from 22 to 30 May. He undertook another trip over twelve days between 17 and 28 June, a third trip over nine days between 1 and 9 July, and a fourth slightly longer trip from 13 to 17 July. The final trip for that year took place from 3 to 14 August. He did two trips in February and March 1988 and then after a considerable break he fished during the greater part of November and early December the same year. He did two trips early in 1989, the last concluding on 19 January. The boat was sold on 11 April 1989, together with the craypots and pot licences.

150. Although confining himself to steering and navigating the boat during this period of time, Mr Burbury said he was in fairly constant pain, mainly in the right leg and lower back. He had difficulty sleeping on board as a result and during rough weather he had to stay at anchor in sheltered waters.

151. The normal method of payment for a deckhand is by way of percentage of the gross value of the catch and this can vary from as low as 7 and a half per cent to 25 per cent. In May, June, July and August 1987 the plaintiffs employed Mr Peter Wisby as deckhand and paid him 20 per cent of the value of the catch. The boat was working mainly in the East and North East of Tasmania, using St Helens as its home port. The weather was generally calm according to Mr Wisby but nonetheless Mr Burbury frequently complained of back pain and spent much of his time when the vessel was at anchor lying down although on occasions they would go pleasure fishing together in the boat's dinghy. At first it appeared to me to be significant that during this period Mr Burbury was able to get by with only one, previously inexperienced, deckhand but it is plain enough that fishing time is limited and catches are quite low during the winter months. Mr Kable did not suggest to Mr Wisby that Mr Burbury fell or collapsed in the wheelhouse during any of these trips.

152. During September 1987 Mr and Mrs Burbury went on their holiday to Noosa in Queensland and while showering one morning Mr Burbury moved his leg in such a way as to suffer acute disabling pain in the back. This was on or about 17 September. At this time the crayfishing season was closed from 31 August to 1 November each year. The plaintiff returned to Hobart and it was found that Mr Burbury had suffered the large postero-lateral disc herniation at L5/S1 which necessitated the microdiscectomy performed by Mr Liddell. During the next crayfishing season Mr Burbury says he was unable to operate without the assistance of two deckhands and, as he found this uneconomical, he decided to give up fishing. This was a decision he reached after consulting with his wife and considering his options over a long period of time.

153. The proceeds from the sale of the boat and pot licences were used to pay off a loan of $21,661.05 to the Agricultural Bank, a commission of $8,000 to the brokering agents, $25,000 to AGC in respect of a car loan, $5,000 owing to another finance company in respect of the auto pilot on the boat, a loan of $14,000 due to Safcol and $20,000 owing on the mortgage of their house at Dover, leaving the plaintiffs with $214,500 which they invested upon commercial bills with the ANZ Bank. When the new home at Blackman's Bay was purchased, $124,500 of this money was required for the purchase. The balance of the funds has been spent on sundry purchases and living expenses and at the moment the Burburys are again in debt to the tune of about $4,000 although they own their motor car and home at Ambleside in Devonport. A good deal of the money they had at the ANZ Bank appears to have been spent on solicitors' fees involving a prolonged and expensive litigious battle with their daughter in relation to a custody claim for their grand daughter Sherrie. They also had to pay a substantial sum to their former solicitors dealing with this case when they transferred their file to Messrs Gunson Pickard and Hann. I am satisfied that they did not squander or fritter their capital in any wasteful way. Such a conclusion provides a separate and independent basis for concluding that it has not been shown that they have unreasonably failed to mitigate their damages in respect of future economic loss.

154. Mr Burbury is an invalid pensioner at the present time. He has modified the garden at Ambleside by reducing the area of lawn. He is able to mow the lawn with a self propelled mower in easy stages. He does most of the gardening and has modified some tools to ease this task. He can go shopping and carry the groceries so long as they are distributed evenly in weight. Upon waking in the morning he is conscious of pain across the hips and down into the groin and will usually take two Panadeine Forte upon rising. Further medication consisting of Panadeine, Panamax or Panadeine Forte may be required during the day, averaging about three or four tablets per day overall. He takes Serepax to help him sleep at night. Because the Panadeine Forte tends to cause mouth ulcers he needs to use Cepacaine to treat that condition and as the analgesics also cause constipation he takes Agarol regularly. He also takes Pepcidine to neutralise stomach ulcers resulting from the analgesic use. These medications have all been prescribed by his general practitioner, Dr Monks. Although Dr Monks was not called to give evidence I am prepared to accept that he has prescribed these medications as claimed by Mr Burbury.

155. Mr Burbury says that prior to the accident he would have been able to do maintenance on the house such as painting, but he is no longer able to do that. He is unable to work overhead from a ladder. He played golf and bowls before September 1986 but is no longer able to do so. He was a pistol shooter and hunter but I get the impression that he was doing little, if any, of this before the accident. He has tried bream fishing in the Mersey River but finds it so uncomfortable that he has given it up. As he gets pain across the hips when driving a car and as this gets progressively worse the longer he drives, he feels he would be unable to drive a taxi nowadays. This is an assessment supported by Mr Hunn. I pause here to note that while seated in court throughout the trial (other than when he was in the witness box) I observed that Mr Burbury sat continuously in an abnormal position resting his weight upon his right thigh and buttock. I did not gain the impression either from his demeanour or otherwise that his discomfort was feigned. He says that despite his own disability he is able to assist his wife with cooking, lifting heavy utensils, clothes washing and hanging clothes on the line, some of the dusting and cleaning the bathroom. He also assists her to use a hairdryer, a task which she finds particularly difficult to achieve on her own. Mr Burbury says he timed himself doing these jobs at his solicitor's request but as I indicated when dealing with Mrs Burbury's claim, I have the greatest difficulty in accepting that these jobs would take him anything like 23 hours per week. The written particulars of the self-assessment he performed were not tendered in evidence as I recall.

156. The evidence satisfies me that Mr and Mrs Burbury had a good business, personal and marital relationship before the accident and that they both look back with nostalgia to their days fishing together. However they are now preoccupied with their own pains and discomfort no doubt amplified by the introspection necessarily brought on by prolonged involvement in litigation of this kind. Sexual intercourse has ceased and I think there is probably a level of chronic depression although there was no medical evidence to substantiate this conclusion on my part. They have separate rooms and both admit to being irritable with each other. They see little if anything of friends they had before the accident but this may be due to circumstances other than their own changed outlook on life.

157. I accept that the male plaintiff, whilst able to assist his wife to some degree in the performance of household tasks has an accident caused disability which precludes him from undertaking his former employment as a professional fisherman. I also accept that although theoretically he may have some residual capacity to earn income for example as a shop assistant or a part time taxi driver it would be unrealistic to expect that he will ever work again and that therefore he should be regarded for present purposes as unemployable. The evidence of Mr Graham McDermott, the Manager, Human Resources at the Hobart City Council satisfies me that Mr Burbury would have no chance of gaining employment with a large organization such as a municipal council, due, in part at least, to the perception that he would be a significant "compo risk" in view of his history of back problems. It does not appear to me that Mr Burbury has such special skills or qualities that he would be taken on by an employer irrespective of such a risk. Nor do I think he would have been qualified or physically able to carry out such jobs as building inspector or parking meter attendant.

158. In the circumstances however this does not mean that his assessed income from fishing should simply be extrapolated from the date of the accident to the date of his 60th birthday without diminution for contingencies. As I have already indicated, I am of the view that a significant allowance should be made in this case based upon the dual adverse considerations of the generally hazardous nature of the fishing industry and the special susceptibility which Mr Burbury had with the pre-existing abnormality in his back. All in all, I think a higher than average discount of 30 per cent should be made on account of these factors.

159. As Mrs Burbury's fortunes as a fisherman coincided exactly with her husband's it is appropriate to make a similar discount for her, subject to this however; if she were to be forced out of the fishing industry due to her husband's early retirement, it is entirely likely in my opinion, if she remained able bodied herself, that she would have obtained work herself, either as a factory hand or more probably, I think, as a hotel housemaid. It could be suggested (although it was not) that she ran something of a double risk whilst on the fishing boat. Not only would her income from that source cease if her husband were to be seriously injured or disabled from continuing in that occupation, but that result would also occur if she herself suffered a similar fate; although if she was injured on the boat and her husband was not, her role could have been taken over by a paid deckhand, thus no doubt preserving some part of the partnership's profitability in which she could share. These considerations suggest the need for a very complex although possibly illusory set of calculations to reach an appropriate figure and I think a much preferable approach is to regard her expectation of income from fishing on the same basis as her husbands and then, to take account of her younger age, to allow an amount for seven years' employment at housemaid's wages thereafter with a further discount for adverse contingencies based upon the uncertainties resulting from breast cancer and its sequelae. BOTH PLAINTIFFS

(a) loss allegedly occasioned by the premature sale of craypot licences

160. The plaintiffs each claim to have lost $18,275 as the result of their sale of the craypot licences. As already mentioned, they jointly held licences for 29 pots. These were sold for $4,300 per pot, ie $124,700. This represented a considerable increase in value compared with the prices which they originally paid for the pots. The first 23 pot licences had cost only $3,000 altogether in 1979 and the next six, purchased in about 1982, were $2,000 each, but the size of the profit or capital gain is irrelevant for present purposes. Evidence was called on behalf of the plaintiffs from Mr I M Parsons, an insurance agent and fishing boat and fishing licence broker. He appears to deal with a substantial part of the Tasmanian trade in these commodities. He gave evidence that in November 1992, craypot licences were selling in Tasmania for $6,000 per pot. There had been some sales between November 1993 and March 1994 at $6,250 or $6,300 per pot. The plaintiffs claim firstly, a loss of $56,550 being the difference between the sum at which they sold their pots ($4,300) and $6,250, viz, $1,950. Additionally they claim a sum per pot to compensate them for "the potential increase in the value of the individual craypot licences from now until (their) anticipated retirement from the fishing industry."

161. In my opinion these claims are misconceived and should not be allowed. It is not suggested that the pots when sold were sold at less than the then current market value. Indeed Mr Kable demonstrated that by manipulating the prices allocated to the house, the boat, the licences and other items in the contract for sale of 11 April 1989 (Exhibits P27A and B), the Burburys may well have effectively understated the value of those items by about $20,000. Mr Kable suggested that this undervaluation related to the craypots, but in my opinion it is more likely that it related to the "Imlay Star" which by that time had been depreciated for tax purposes to approximately $18,400. This observation should not be taken as suggesting that there was anything fraudulent or deceitful in this process.

162. It was not suggested that the plaintiffs were obliged to sell at an inadequate or inappropriate sum as a result, for example, of extreme or urgent financial hardship resulting from their injuries. No allowance has been made in the calculations upon which the claims are based for the compound interest which could have been earned by investing the $124,700 received from the sale between the date of receipt and the date of trial. No sound basis has been established for assessing the value of a craypot licence at the time of the plaintiffs' intended retirement. If crayfish are less plentiful then than they are now, the value of a licence may fall. If they are more plentiful more licences may be granted. The whole exercise is simply speculative

163. The primary objection is more fundamental however. If the plaintiffs were still fishing, their licences would be incapable of realisation until retirement. There is therefore simply no warrant for assessing the value of a licence at a particular time such as November 1993 or March 1994 and using that as a foundation for assessing the supposed loss. A somewhat similar claim made by the plaintiff partners in Gensicke v Keep (B18/1994 at 18) was rejected by me for similar reasons and I have not been persuaded to a contrary conclusion on this occasion. This component of both plaintiffs' claim is rejected.

164. If as submitted by Mr Kable, the plaintiffs should have retained their boat and craypots and all relevant licences and leased them to some other person or company, thus providing themselves with a continuing income from the fishing industry, some additional consideration of this issue may have been necessary.

165. By his cross-examination of Mr Brettingham-Moore and Mr Parsons, Mr Kable was able to demonstrate that the leasing of boats and pots is not so unusual as Mr Burbury's evidence tended to suggest. Perhaps it is more common now than when Mr Burbury was fishing. It seems to me however that Mr Kable's submission, based upon the evidence disclosed in the course of these cross-examinations was also misconceived. He seemed to be saying, "If the plaintiffs had retained the boats, pots and licences, they could have leased them and provided themselves with an income and consequently they would have no claim, or a reduced claim, for future economic loss." In my opinion such a proposal ignores or loses sight of the fact that a claim for future economic loss is based upon the reduced earning capacity of the injured party. Merely because the relevant injury has released the capital invested by the injured party in his or her business enabling it to be spent, rather than conserved or re-invested, does not change the method of approach in assessing the value of the lost earning capacity. The injured party does not get an undeserved windfall in this way. If he maintained his boat, other plant, equipment and licences as no doubt he would to enable him to continue working until retirement, he would still have them available to sell upon his retirement. Merely because he sells them earlier rather than later does not appear to me to entitle a tortfeasor to a credit against the sum properly recoverable for lost earning capacity.

166. It is also relevant to consider what funds Mr and Mrs Burbury had at their disposal upon selling their house and business in April 1989. I have reviewed the evidence as to this in an earlier part of this judgment and from the figures there quoted it will be seen that in order for them to continue in the fishing industry they would have had to continue servicing not only their own equity capital, but also a substantial debt to the Agricultural Bank and finance companies, as well as the mortgage on their home. These factors (excluding the home mortgage) tend to explain why their profits from the business were fairly modest. Furthermore, as must be obvious, it is one thing to run a small family business where the partners enjoy each other's company and the environment in which they work and provide all or virtually all of the hard work to ensure its success, and quite another to expect those partners, after sustaining disability, to employ strangers to take over the boat which was both their factory, conveyance and home, to operate far away from their immediate control or supervision. It is neither surprising, nor, in my opinion, to the plaintiffs' financial detriment in these proceedings, that they decided to sell up, lock, stock and barrel, and move away from Dover. Mr Burbury encapsulated his reasons for the decision which was taken in the following passage of evidence:

"Q If you were leasing out your boat, getting 33 and a

half percent gross, of the takings, it would not be a

money making venture? ...

A It'd be a bit like playing the stock market - very

speculative. It depends on who runs the boat, whether

the income - you know - how many fish they catch, how

they look after your vessel, whether they do the right

thing legally - you know, you could stand to lose your

ship, your licence, the whole works. That was a decision

that we had to make."

167. His re-examination at 3160-3161 is also relevant and persuasive as to this issue.

168. Mr Burbury made what appears to me to be a very good point when he said during the course of cross-examination, that professional people who lease fishing boats to fishermen may well be doing so for the purpose of making capital gains on the value of licences rather than making an income on which to live. Whilst there was no evidence to substantiate this proposition it seems to me that it at least tends to undermine the defence contention that leasing the boat would be an obvious way for the plaintiffs to sustain their income. Furthermore, Mr Burbury says that he was always hoping to be able to get back to full time fishing himself. He was asked to explain how this statement could be true when he advertised the boat for sale in a New Zealand paper as early as April 1988. As I understood him he said that good prices were being paid for cray boats in New Zealand at the time and he thought he would test the market without necessarily committing himself to sell unless the price offered was very substantial.

169. I have some difficulties with this explanation. If the boat was sold and Mr Burbury was to continue fishing he would need to secure a replacement. Furthermore, a sale of the boat at above its written down price for taxation purposes would have attracted an additional tax liability. Whilst I am prepared to accept that Mr and Mrs Burbury had not made an irrevocable decision to quit the fishing industry at that time, it is fairly plain that they were seriously contemplating doing so.

170. Nevertheless, the defendants carry the onus of proving that the plaintiffs failed to take reasonable steps to mitigate their loss and in my opinion they have failed to do so.

BOTH PLAINTIFFS - EFFECT OF DISABILITY SUPPORT PENSION UPON CLAIM FOR FUTURE ECONOMIC LOSS

171. The defence did not contend that the receipt by the plaintiffs of an invalid pension should reduce any damages to which they may be entitled in respect of diminished earning capacity to the present time.

172. However it was submitted that as a result of comparatively recent amendments to social security legislation effected by the Social Security Act 1991, the foundation for the decision of the High Court in Redding v Lee [1983] HCA 16; (1982-1983) 151 CLR 117 has been removed. The High Court in Redding v Lee (supra) did not purport to establish a principle valid for all time irrespective of the content of legislation conferring benefits upon injured plaintiffs. As Gibbs CJ observed at 125:

"In the case of a benefit provided under statutory

authority, the intention of the legislature, in providing

the benefit, must be gleaned from the statute itself as a

matter of interpretation. If the statute expressly

provides (as some statutes relating to workers'

compensation have done) that a plaintiff who has

recovered damages shall repay the amount of the benefit

it will be clear that the receipt of the benefit must be

disregarded in the assessment. In many cases, however,

the statute under which the benefit is provided will give

no assistance of this kind. Then it will be necessary to

consider closely the nature of the benefit itself. The

conclusion that the benefit is intended for the plaintiff

personally and not in reduction of the damages may more

readily be drawn when it is seen that the receipt of the

benefit is not dependent on the loss of wages or earning

capacity (I shall refer again to the distinction) for

which the plaintiff claims damages (cf Parry v Cleaver

(1970) AC, at p 42, per Lord Wilberforce) and is not

intended to replace the lost wages or remedy the loss of

earning capacity."

173. To test the legislation by reference to whether or not it is intended to confer a benefit upon an injured person irrespective of whether that person has a right to claim damages or compensation from another party is not a wholly satisfactory test. Nor is it easy to discern some overall purpose to legislation of this kind, (eg see the comments of Brennan J in Redding v Lee (supra) at 163). If the legislation requires an injured party who has received benefits under the legislation to repay such benefits in the event of a successful claim it is usually apparent that such a process negates any argument that the damages or compensation should be reduced. The present legislation appears to combine two philosophies and to some extent suggests a compromise approach by Parliament (cf the provisions of the English Law Reform (Personal Injuries) Act 1948 referred to by Gibbs CJ in Redding v Lee (supra) at 125-126).

174. Mr Kable submits that the legislative scheme has so altered that the reasoning in National Insurance Co of New Zealand Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569 which underpinned the majority decision in Redding v Lee (supra), is no longer applicable (see Camm v Salter (1992) 2 Qd R 342 per Thomas J at 348). Mr Kable argues that both plaintiffs have a clear entitlement to receive an invalid pension (now called a "disability support" pension) subject only to a lump sum exclusion period provided for in s1165. This operates to postpone that entitlement for a period which is dependent upon the application of a formula whereby the sum awarded for future economic loss is divided by "average weekly earnings" being the Australian Statistician's estimate of the average weekly earnings of male employees in Australia published during the month before the compensation (damages) payment became payable. Thus, if compensation of $100,000 were to be awarded for lost earning capacity and the average weekly earnings for the preceding month were $500, the disability support pension would not be payable for 200 weeks. Thereafter payments would recommence, bureaucratic discretion no longer forming part of the necessary steps towards re-implementation. Mr Kable submits that once an estimate has been made for future economic loss I should discount the prospective award, as I understand his argument, either by calculating the value of that economic loss from the recommencement date of the pension and deducting the value of the pension from then until the plaintiffs' likely retirement date or dates, or by making an allowance by way of deduction for contingencies. Plainly enough an attempt to make a precise mathematical calculation would be a difficult task; perhaps, as Underwood J observed in Sorenson v Woolnough (A32/1989) at 2 it would present an "insoluble problem." Amongst other things the average weekly earnings are likely to change significantly over the intervening period and there may well be amending legislation changing not only the detail but the percentage of disability which must exist before a pension becomes or continues to be payable.

175. In response to Mr Kable's argument Mr Gunson pointed out that there was no absolute entitlement on the part of either plaintiff to a future pension because the amount recovered in their respective actions may either diminish or reduce to nothing the rate of such pension by application of means tests based upon either assets or income or a combination of both. Thus for example, if the plaintiffs were to recover combined damages of $339,500, as they already own their home at Ambleside, the asset test would apply so as to preclude either of them from receiving any pension payment whatsoever. Similarly if they were to receive a combined income of $1,247.60 per fortnight they would have no entitlement to a pension payment. An investment of $240,000 each at seven per cent per annum would put both plaintiffs well over this limit.

176. Mr Gunson referred me to the provisions of the 1991 Act, ss94, 96, and in particular, 98(2). Section 98(2) provides:

"Subject to subsection (3)" (irrelevant for present

purposes) "a disability support pension is not payable to

a person if the person's disability support payment rate

would be nil."

177. He also handed up Tables showing the relevant nexus between assets and income and the pension rates payable (P153).

178. Furthermore he pointed out that a recipient of a disability support pension, to ensure continuing entitlement may be required to undertake rehabilitation programmes (s104), attend interviews and complete questionnaires (s105) and submit to medical examinations (s116). As a result, he submitted it could not be said that a continuing entitlement to such a pension was no longer subject to certain, albeit restricted, bureaucratic controls and discretions. A pensioner who is no longer qualified is no longer entitled to receive a pension (s137).

179. Whilst I agree with Mr Kable's primary submission, based upon the principle acknowledged in Jesberg v Rackemann (1986) 1 Qd R 181, that in assessing the value of the loss of future earning capacity, it is appropriate to take into account any right which an injured plaintiff may have to receive a disability support pension, I think it quite unrealistic to attempt to assess such a prospect in precise monetary terms. In my opinion the sensible course is to take account of such future prospects in assessing an overall percentage for contingency factors. That is what I propose to do in respect of both plaintiffs.

180. The claim of each plaintiff is formulated on a similar basis. It is claimed that at the time of the accident they were each earning $25,000 (gross) per annum; a nett figure has not been provided. It is further claimed that by 14 December 1992 (the date upon which Particulars of Claim for Damages was delivered in each case) this would have increased to $55,000 gross each per annum. The claim for future loss is based upon a continuing earning capacity of $60,000 each per annum until each plaintiff attains the age of 60 years.

181. The starting point for an examination of these claims must be the partnership's earning record over the years before the accident:

1 For the year ending 30 June 1982 the partnership

operated at a loss of $7,100 before addition of an

investment allowance which increased the loss to $7,653.

As a result for a "start up" year this is neither

surprising nor, of itself, particularly significant.

2 For the year ending 30 June 1983 the partnership loss

was $3,873 before addition of an investment allowance

which increased the loss to $4,179.

3 For the year ending 30 June 1984 the partnership income

from fishing was $6,166 profit plus an extra sum of $655

from non-primary production sources. (Interest from

monies on deposit with the ANZ Bank). Total $6,821.

4 For the year ending 30 June 1985 the partnership income

from fishing was $17,860 profit plus $971 in interest

from the ANZ Bank. Total $18,831.

5 For the year ending 30 June 1986 the partnership income

from fishing was $15,107 profit plus $47 in interest from

the ANZ Bank. Total $15,154.

6 For the year ending 30 June 1987 the partnership would

have made a loss again as fish sales amounted to $26,117

and the fuel rebate amounted to $1,334 whereas the

expenses amounted to $34,660. However the MAIB provided

the plaintiffs with income reimbursement following the

accident which amounted to $30,246. Overall therefore,

the partnership made a profit of $23,037 plus ANZ Bank

interest $44 and recouped depreciation on the wrecked

Mazda ($287). Total $23,368.

7 For the year ending 30 June 1988 a similar story

emerges. Income from fish sales, $32,104. Fuel rebate

$1,798. Reimbursement of income from MAIB, $37,750.

Expenses amounted to $44,906. Partnership profit,

$26,746 plus ANZ Bank interest $44. Total $26,790.

8 For the year ending 30 June 1989 (the last year for

which a partnership return was prepared for income tax

purposes), the picture was as follows: Fish sales

$42,827. Fuel rebate $1,111. Profit on sale of fixed

assets $11,936 and reimbursement of income from MAIB

$10,412. Partnership profit $18,539 plus ANZ Bank

interest $667. Total $19,206.

182. For the purpose of satisfying the MAIB as to their income at the time of the accident and in order to claim an income support allowance thereafter, the plaintiffs instructed their accountant, Mr P T Beven of Wise, Lord and Ferguson, to prepare a trading and profit and loss statement to show the financial position of their partnership during the twelve months immediately before the accident. A copy of this document became exhibit P35.

183. These figures show fish sales of $75,768, and a fuel rebate of $1,890 giving a gross profit of $77,658. After deduction of expenses this produced a nett profit of $28,770.

184. On these figures alone it would be difficult to see how the plaintiffs' claim as particularized could be substantiated, but, based upon information supplied by witnesses as to the prices of crayfish over the period from 1986 to the time of the trial and other factors, it was submitted that the plaintiffs would have been able and likely to increase their profits substantially from 1986 onwards.

185. In the first place there were two factors which would have served to reduce the plaintiffs' actual and notional overheads each year, thus increasing the partnership's profit, the plaintiffs' taxable income and, probably, also their disposable income. Firstly the "Imlay Star", purchased in 1981, was being depreciated at 13.28 per cent per annum, reducing its written down value to $24,583 by 30 June 1986. Secondly, the loan to the Agricultural Bank was being reduced regularly at the rate of $2,500 every six months and as the capital debt decreased, the payment of interest also would have diminished. Although there are no specific figures showing the extent to which this loan had been reduced from its original level of $50,000 by 30 June 1994, it seems probable that it had been reduced to $30,000 at that time and that it had been further reduced to $20,000 at the time of sale in April 1989. (Part of the $21,661 paid to the Agricultural Bank on 4 May 1989 seems to have consisted of accrued interest).

186. Mr Webster, junior counsel for the plaintiffs prepared a very detailed series of documents in which he analysed and averaged the month by month crayfish catch achieved by the Burburys during their involvement in fishing the "Imlay Star", and projected these figures for the years following the accident. Then, using the evidence of Mr Brettingham-Moore and exhibit P85 as to fish prices over the intervening years, he calculated the likely gross income which the Burburys could have achieved if they had continued fishing to the same pattern as they had established prior to September 1986.

187. The evidence of Mr Robert Kennedy, Senior Research Scientist with the Department of Primary Industry and Fisheries, specalizing in the Tasmanian Rock Lobster, provided data which indicated that over the last thirty years or so, catches of crayfish in Tasmanian waters have remained fairly constant despite some variations to the duration and scope of the annual closed season, the details of which were included in exhibit D26. On the basis of this material there is no reason to suppose that catches of crayfish by the Burburys would have increased or decreased significantly between 1986 and 1994.

188. I consider Mr Webster's analysis to have been a most useful exercise. No doubt this will constitute one of the few occasions when fishermen will have reason to be grateful for the duty cast upon them by the Sea Fisheries Division requiring completion of regular returns showing details of crayfish caught around the Tasmanian coast, because Mr Webster was able to extract most of the material for his study from those returns (Exhibit P123). Information as to scallops and shark fishing was also included by Mr Webster, as was material from the "Imlay Star's" log books (Exhibits P16 and P31). It seems to me that Mr Webster's analysis has taken all proper considerations, both favourable and adverse into account, (such as the changes to the closed seasons from 1989 to 1993 as contained in Exhibit D26) and it thus provides a reliable guide to the likely earnings of the partnership after 1986. On the figures prepared it was contended that the average gross earnings of the Burbury partnership for the period 1 November 1986 until 31 August 1993 (ie seven complete seasons) would have been $132,496 per annum. Mr Webster also used an alternative method of making this calculation which suggested an average yearly gross income of $142,100 per annum but, useful as that process was as a checking mechanism, I do not regard it as quite so persuasive as his primary analysis.

189. There is no completely reliable evidence which would enable me to calculate with any degree of accuracy the extent of overhead payments or expenses which it would have been necessary for the Burburys to incur in order to keep their business operating after 1986, but if one expresses the overheads as a percentage of the gross income for the years ended 30 June 1984, 30 June 1985 and 30 June 1986, one finds the following:

(a) 30/6/84 Gross Income $55,092

Expenses 48,920

Nett Profit 6,172

therefore Expenses equalled 88.8% of Gross Income

(b) 30/6/85 Gross Income $73,977

Expenses 55,885

Nett Profit 18,092

therefore Expenses equalled 75.55% of Gross Income

(c) 30/6/86 Gross Income $60,334

Expenses 45,227

Nett Profit 15,107

therefore Expenses equalled 74.95% of Gross Income

190. I have taken only the last three years of the partnership figures into account because prior to that time the Burburys were fishing only 23 pots and to include the figures from those early years would be likely to distort the final result.

191. Despite the considerations as to reducing interest payments and depreciation urged upon me by Mr Gunson I am not persuaded that the overall expenses of the partnership would necessarily have diminished to the extent claimed from 1986 onwards. It must be borne in mind that mechanical repairs and updating and replacing electronics and fishing gear are constant sources of expense for an enterprise of this kind, and, although the number of years available for comparative purposes is very small, I would find it difficult to conclude that profits were likely to exceed more than about 30 per cent of the gross income after 1986.

192. I therefore propose to accept the figure of $132,500 as the likely average gross receipts of the partnership from 1986 onwards had both partners been able bodied and devoting their full time to the business, and I also propose to accept that their likely profit margin would have been 30 per cent or $39,750 per annum, ie $19,875 per annum each. It would be reasonable to round this figure up to $20,000 per annum.

193. Despite submissions to the contrary I consider that there is insufficient material for me to draw an inference or make an assumption that profits would have increased or were likely to increase if a larger boat and more cray pots and licences were to be purchased.

194. Accordingly I propose to allow the following amounts for past and future economic loss.

1 Barry Burbury

(a) Past Earning Capacity

Past economic loss September 1986 to September 1994

8 years at $20,000 gross per annum $160,000.00 160,000.00

(i) Less tax and Medicare levy

Tax Medicare

1986/87 2,290 280

1987/88 4,001 250

1988/89 4,001 250

1989/90 3,317 250

1990/91 3,118 250

1991/92 3,118 250

1992/93 2,920 250

1993/94 2,920 250

28,373

$131,627

(ii) Less Income actually received

Income Tax Medicare Nett

1986/87 11,684 1,659 134 9,891

1987/88 13,373 2,024 167 11,182

1988/89 9,603 1,132 9 (From Notice of

Assessment) 8,462

1989/90 11,620 1,369 145 (From Notice of

Assessment) 10,106

1990/91 1,964 Nil Nil (From Notice of

Assessment) 1,964

1991/92)

1992/93) Disability support pension sole income

$41,605.00

1993/94) therefore not included

Total $90,022.00

195. I have included the MAIB disability allowance payments in the above income as this benefit was paid on the basis that it was in lieu of income from the fishing business and in the circumstances of this case where, during the first three years after the accident the plaintiffs continued their fishing operations, albeit on a reduced basis, it seems to me that this is an appropriate way to give credit for the payment of scheduled benefits as required by the Motor Accidents (Liabilities and Compensation) Act 1973, s27.

196. I do not lose sight of the fact that this results in the MAIB receiving a direct credit for less than the gross amount which was paid to Mr and Mrs Burbury by way of disability allowance between 30 September 1986 and 23 September 1988, namely $37,866.03 and $41,356.18 respectively, but were I to take a different course from the one which I propose, I think the principle established in Fox v Wood (1981) CLR 438 would be infringed (cf Van Gervan v Fenton (FC) A10/1991 and Leighton Contractors Pty Ltd v Cule (FC) A67/1993).

BF $90,022.00

(b) Future Earning Capacity

Part (a) takes Mr Burbury's economic loss to 30 June

1994. As at 30 June 1994 he was aged 54 years. If he

were to retire as a fisherman at or about 60 years of age

he would have approximately 6 and a half years ahead of

him earning $16,830 nett per annum. Although I find that

he would probably have retired from fishing at age 60 I

think it likely he would then have continued in some job

such as taxi driving until age 65.

There is no evidence to suggest what income he would have

received from this source but I would be surprised if he

could not have earned a somewhat similar amount.

Therefore for the purposes of the present assessment I

propose to regard a nett income of $16,830 per annum as

extending until age 65, ie, 11 1/2 years from the present

time. On the basis of the usual 3% discount tables

(exhibit P141), I calculate the present value of the lost

earning capacity to be:

$324 pw x (490 (11 years) + .9 (3 months)) 161,676.00

ie, 324 x 499 48,502.80

Less 30% for contingencies 113,173.20

$203,195.20

2 Sue Anne Burbury

(a) Past Earning Capacity

There is no rational basis for distinguishing between the

two plaintiffs in respect of past economic loss and

consequently I propose to allow the same amount as

allowed in respect of Barry Burbury.

$90,022.00

(b) Future Earning Capacity

Mrs Burbury's future income from fishing would have been

co-extensive with that of her husband for the reasons

previously discussed. Therefore for the next and a

quarter years (until his retirement at age 60) I propose

to assess her income in the same way as I have assessed

his. Thereafter I think it likely she would have secured

employment as a hotel housemaid until she attained 60

years of age, ie, 12 October 2008 (d o b 12 October 1948)

ie, 7 years after cessation of the fishing business.

I calculate the present value of this lost earning

capacity to be:

(i) Income from fishing

$324 pw x (287 (6 years) + 12 (3 months))

ie 324 x 299 = $96,876

Less 30% for contingencies $29,063

$67,813.00

(ii) Exhibit P151 shows that under the Hotel and Retail

Liquor (Federal) Award a housemaid's wage at 9 December

1993 was $350.10 per week gross. In assessing the

value of this component of the damages it is necessary

to have regard to the fact that these payments would

not commence for about 6 and a quarter years. As the

payments would be periodic, Table 1 of Luntz, 3rd edn

at 543 is not really appropriate and I think the

nearest one can reasonably come to its present value is

by taking the difference between the N factor in P141

at 6 and a quarter years (approximately 299) and at 13

and a quarter years (approximately 572) ie 273 and

multiplying that by $296 being the award rate of:

$350.10 less tax and medicare levy

therefore 273 x 296 $80,808.00

In respect of this period I think it reasonable to apply

a contingency discount of 15% to take into account the

breast cancer factor.

$12,121.20 $68,686.80

Total $226,521.80

BARRY BURBURY - FUTURE PHARMACEUTICAL AND MEDICAL EXPENSES

197. Barry Burbury takes about four Panadeine Forte and four Panadeine tablets per day. He takes one Serepax at night and he uses Cepacaine, Agarol and Pepcidine as required. The unit cost of all these medications has been agreed by the defence. I have checked the costs claimed against the evidence and they all seem reasonable to me with the exception of Panadeine Forte which I asses at $7.72 per week rather than $9.72. Accordingly I allow $23.84 per week. Mr Burbury's life expectancy is approximately 21 years. I propose to allow $23.84 x 816 = $19,453.44 (3 per cent discount) and I will discount that sum by a further 10 per cent for general contingencies making a total of $17,508.10. Mr Burbury says he sees his general practitioner, Dr Monks, in Devonport every three or four weeks. For the same reasons as I express in respect of Mrs Burbury's claim under this heading I think six consultations per annum should suffice. I allow Mr Burbury $3.11 per week for this expense $3.11 x 816 = $2,537.76, discounted 10 per cent for contingencies = $2,283.99.

SUE ANNE BURBURY - FUTURE PHARMACEUTICAL, MEDICAL AND TRAVELLING EXPENSES

198. It is claimed that the plaintiff uses a number of analgesic and relaxant drugs on a more or less regular basis. There is no dispute as to the unit cost of the medication which she says that she takes. She claims $14,596.11 as the future cost of this medication. According to her evidence she takes about eight Panadeine Forte, Panamax or Panadeine per day and one Ducene per day. Assuming that she takes four Panadeine Forte, two Panamax and two Panadeine on average, I calculate the total annual cost at $564.65 or $10.85 per week. Discounted at 3 per cent for 35 years, this amounts to $12,401.55. I think it reasonable to infer that she will continue to use medication at about the same rate but, for reasons previously discussed, I am of opinion that her overall claim should be reduced by 20 per cent for contingencies. I accordingly propose to allow $9,921.24. It is also reasonable for her to continue seeing her general practitioner, Dr New, from time to time. The claim is for once per month, but as the accident caused disability has settled into a regular pattern, and Dr New was not called to substantiate a need for such regular attendances, I think that six times per annum should be more than enough for the purpose of counselling support and the provision of prescriptions. I will allow $192 per annum or $3.11 per week. Discounted at 3 per cent for 35 years this amounts to $3,554.73. Discounted a further 20 per cent for contingencies I assess $2,843.78 as the appropriate sum under this head. It is also claimed that the plaintiff should be allowed the cost of travelling from Devonport to Ulverstone to consult Dr New, (a distance of 44 kilometres at 45 cents per kilometre). The distance and rate is admitted but the defence challenges the reasonableness of allowing this cost. Whilst I think that there must be some limit upon a person's entitlement to charge a tortfeasor for the cost of travelling to see a medical practitioner of his own choosing when several competent practitioners are available in his or her home town, I do not see this as unreasonable, although I think it likely that with advancing age and a waning desire on the plaintiff's part to travel back and forth to Ulverstone, I should allow it for only ten years. I therefore allow 44km x 6 = 264km per annum, ie 5.07km per week at 45 cents per kilometre x 452 (10 year factor - see Exhibit P141) = $1,030.56.

BOTH PLAINTIFFS - PAIN, SUFFERING AND LOSS OF AMENITIES

199. I have dealt with the principal factors relevant to each plaintiff's claim under this head already. They both suffer intermittent chronic pain which is exacerbated by activity and temporarily relieved by medication. They have been obliged to give up a business venture which they both enjoyed and they have both become short tempered and introspective. Their previously happy relationship has suffered and I expect this to be permanent, although with the cessation of these proceedings and the associated anxieties, it may well improve. In my opinion damages under this head for each plaintiff should be assessed at $35,000.

200. I propose to assess Barry Burbury's damages as follows:

(1) Pain suffering and loss of amenities $35,000.00

(2) Griffiths v Kerkemeyer - half of claim 10,383.12

(3) Loss of Earning Capacity

(a) Past 90,022.00

(b) Future 113,173.20

(4) Future Pharmaceutical and Medical Expenses

(a) 17,508.10

(b) 2,283.99

19,792.09

$268,370.41

201. In the circumstances I see no reason to add and then subtract the past hospital, medical and pharmaceutical expenses which were paid to the date of trial by the MAIB.

202. I propose to award Sue Anne Burbury damages as follows:

(1) Pain suffering and loss of amenities 35,000.00

(2) Griffiths v Kerkemeyer half of claim 9,001.25

11,515.00

250.00

20,766.25

10,383.12

(3) Future Griffiths v Kerkemeyer

66,914.40

(4) Loss of Earning Capacity

(a) Past 90,022.00

(b) Future 67,813.00

68,686.80

136,499.80

(5)

Future Pharmaceutical, Medical and Travelling Expenses

(a) 9,921.24

(b) 2,843.78

(c) 1,030.56

13,795.58

$352,614.90

203. As with Mr Burbury's claim I see no reason to add and then subtract the past hospital, medical and pharmaceutical expenses which the MAIB had paid prior to the date of trial.

204. Barry Burbury v Sievers (action no 1129/1987): - That judgment be entered for the plaintiff against the defendant in the sum of $268,370.41.

205. Sue Anne Burbury v Burbury and Sievers (action no 1204/1987): - That the plaintiff's damages be assessed at $352,614.90 and that final judgment be entered for the plaintiff against the first named defendant accordingly.