CONNOLLY v BURTON

CONNOLLY v BURTON - [2007] NSWSC 1484 - NSWSC 2007 case summary — Zoe

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The plaintiff 4 The plaintiff was an experienced stunt performer at the time of the accident. He commenced his initial training in about 1986 with Mr Rangi Nikora, a New Zealand stunt co-ordinator and was particularly competent in martial arts and the handling of weapons. He had performed many stunts, including precision driving stunts and had acted as a double for the main actors. He is in excess of 6 feet in height and had a strong physique making him particularly suitable for roles in action movies. 5 At the time of the accident the plaintiff had completed full time training over a two year period with Mr Nikora so that he could obtain work as a stuntman. Ms Gilliam Statham, a stunt performer who also trained under Mr Nikora gave evidence that the training with Mr Nikora was "extremely hard". Out of the 30 people who started the stunt training course with Mr Nikora, she and the plaintiff were two out of only six people to successfully complete the course. She recalls that the plaintiff performed the training tasks "just as well as anyone else in the group". 6 Ms Statham says Mr Nikora's training covered all areas of stunt work. She explained that Mr Nikora taught high-level skills that stunt performers usually only learn after they are graded as Stunt Action Personnel. 7 Ms Statham says the training allowed performers to come into the industry at a higher level than other stunt performers because Mr Nikora's training covered skills that others coming into the industry would not have covered. Ms Statham believes that it was rare for performers who had not trained with Mr Nikora to have the high level skills that those who trained with him possessed. When asked by counsel for the defendant whether she thought the two years spent training with Mr Nikora had put her in a more favourable position as an employee, Ms Statham said "I definitely believe that". 8 In 1998 the plaintiff was invited to join the Stunt Agency which was the then premier agency for stunt performers in Australia. At the time of the accident I am in no doubt that his career was on the ascendency. Although the industry is competitive and, as with principal actors the flow of work may not be consistent, but for the accident he would have continued as a stunt performer for the foreseeable future. 9 The plaintiff has recently been diagnosed with pancreatic cancer. Because of concerns with respect to his health arrangements were made for his evidence to be taken before Mr Menzies SC as Commissioner on 12, 13 and 14 June 2007. The transcript of these proceedings was tendered together with his written statement.

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The morning sequence 14 The arrangements to film these sequences were complex. The number of people on the site on this day exceeded 100. They arrived early in the morning. During the morning the sequence involving the car was rehearsed and attempts made to film its movement and ultimate explosion. Those attempts were not successful. 15 The plaintiff arrived onsite early that morning. He was called down to the set at about 11 am together with the actor playing the second guard whose name was Jon Heaney. They met the defendant and Mr Donaldson on the bridge. Mr Burton instructed the plaintiff that he was to position himself so that he could fire at the helicopter and then, on cue, turn at the last minute as the bike came over him, pull backwards and shoot as the rider passed over head. When the scene was being discussed it was anticipated that Mr Donaldson would give the cue by calling out "bike." However, this was not possible due to the fact that the actors were wearing ear plugs and there was significant noise from the helicopters and the firing of blank bullets. The plaintiff understood that the cue would be given by Mr Page moving his hand down past his face at the appropriate time. 16 The scene was rehearsed a number of times. At one stage the helicopters were having problems and preparations were delayed when they had to refuel. At another stage the motor vehicle was having problems in being accurately positioned. There were also problems with the motor cycle including difficulties in setting up its fly rig. 17 At the same time as the explosion was being filmed the motor cycle sequence including the guards, was also being rehearsed. The cycle was suspended on wires between two cranes referred to as a rig which fires the bike down a device known as a traveller. The cycle was being ridden by another stunt actor. Apparently in the morning rehearsal the sling malfunctioned and the bike veered out of control. The rider became entangled in the wires and was fortunate to escape serious injury. 18 The plaintiff says as things went wrong the atmosphere on the set became extremely tense. This was not surprising. Given the number of people on site and the equipment being utilised the cost would have been significant. 19 Mr Burton gave evidence before me. He impressed me as a man prone to impatience with high expectations that his instructions will be obeyed. He described himself as a person who "makes things happen." He said that his mood was "always of passion and get it done and sometimes I am a little loud and I am a little energetic and I talk loud and I make things happen." I have no doubt that this is an accurate description of his behaviour on the relevant day. He was not in a mood to take no for an answer. The afternoon sequence

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20 After the problems of the morning activities were suspended for lunch. When the plaintiff came back onto the set after lunch he waited with Jon Heaney in the area where they had been marked to stand during the morning's rehearsals. The plaintiff said that it was quite late in the day when Mr Burton came down onto the bridge and said to everyone around in a loud and aggressive manner: "We've got to get something in the can for today. We only have 20 minutes of usable light. We have to have something out of today." 21 The plaintiff says that Mr Burton approached him and Mr Heaney and said: "We're going to cheat you back 8 feet and bring you into the middle of the bridge to make it look like you're talking. It's going to be a reverse shot so we've got something in the tin." When using the expression "cheating" Mr Burton was referring to the fact that although their physical location would be altered on the camera it would appear as if they were standing in the same place as in the original sequence. The plaintiff says that Mr Burton continued and said: "Don't turn around because you don't know the motor cycle is there. Wait for Grant's cue. Otherwise the shot will be ruined. Wait for Grant's cue." 22 The plaintiff says that Mr Burton was emphatic and said: "Don't turn around too soon. You don't know the motor cycle is there. You're shooting at the helicopters. You hear the motor cycle as it gets close to you and then you turn around and shoot at it." 23 The plaintiff says that Mr Burton was stressed at this stage. He recalls that Grant Page was present but does not remember where Mr McDonald was. The plaintiff says that he was concerned about the safety of the proposed manoeuvre and said to Mr Burton: "Sir, this is going to change the timing for us." 24 The plaintiff had in mind that by moving closer to the point from which the motor cycle was moving toward them there would be less time between when it came into view and the time at which the cue to move away could be given. He said that Mr Burton threw his arms up into the air, turned as he walked away and said: "Just fucking work it out." The plaintiff said that Grant Page then came over to him and said: "I'll cue you earlier to make up for it." The action with the guards standing in their new position was not rehearsed. 25 The plaintiff said that everyone took up their positions. Because the plaintiff and Mr Heaney had been moved more into the centre of the bridge they were in the line of the motor cycle. The action call was given and the plaintiff and John Heaney started firing at the helicopter and discharged a few rounds. He said he did not see any cue from Grant Page and he decided to turn away because he knew he was in a dangerous position with less time to react. As he started to turn he was struck by the motor cycle. He did not see the cycle before it hit him. The front wheel of the motor cycle hit his right arm, the blinker hit the right side of his face and the frame of the bike struck him in the right shoulder blade. He was thrown forward and hit the ground. One of his teeth fell out. He immediately knew that his arm was broken. 26 He said that Mr Page came over to him and said: "Didn't you hear the cue?" The plaintiff says that he put his left arm up and pulled out his right ear plug and said to Mr Page: "What fucking cue?" The plaintiff says that with the attendant noise which required the use of ear plugs the only effective cue was visual. 27 I accept the plaintiff's evidence.

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Mr Burton's evidence 28 Mr Burton gave evidence of the events. Although he clearly recalls some matters, in my judgment, his recollection of some of the events is clearly faulty and does not accord with the sequence of events confirmed from other evidence. This is not surprising given the lapse of time since the accident. Where his evidence differs from the plaintiff I prefer the plaintiff's account. 29 Mr Burton recalls giving directions which altered the positions of the stunt guardsmen from the morning to the afternoon shoot. He said that together with the camera operators the stunt actors were given their positions that would be best for the camera. He said he was also concerned about the safety of the operation. He said that the shot was discussed amongst a number of people and the positions of the actors and cameras were worked out. Mr Burton has no recollection of the plaintiff expressing concern about being moved closer to the gate. 30 Mr Burton says that he does not recall walking away from Mr Heaney and the plaintiff and saying words to the effect: "you just work it out." Notwithstanding his lack of recollection I am completely satisfied that this conversation occurred. 31 When cross-examined Mr Burton revealed that he had never wanted the motor cycle to be confined by cables. He thought that given the capacity of cyclists to perform tricks the cables and attachments were a waste of money. He denied that he was agitated or irritated but I am in no doubt that this was the case. He accepted that he may be aggressive and said "from the moment I get to the minute I leave I want every shot I can get." He agreed that he told the stuntmen where to stand. He denied that he moved them closer together. In this respect I prefer the evidence of the plaintiff. It was put to him that the actors were moved so that they were just an arms length away from each other. Mr Burton said he did not recall this. 32 Mr Burton was asked about whether on more than one occasion he had instructed the stunt actors not to turn around. Initially, he said: "I deny that. I don't recall that. Don't recall it." He was then asked: "Q. And you said to them, wait for Grant's cue otherwise the shot will be ruined, wait for Grant's cue", didn't you? A. I don't recall that either." 33 Mr Burton was asked: "Q: Do you say firstly that you believed at the time that what you were doing was safer for them?

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A: I always think about safety. I always think about - nothing has to be unsafe if you know where to put the cameras and you know your angles and I am an expert at angles." 34 Mr Burton admitted that he knew that Mr Page had been designated to give the cue. However, because Mr Page was the safety officer on the set he should not have been given this task. Mr Burton knew this and agreed that Mr McDonald should have had this task. 35 It is obvious from the film of the accident that neither of the actors saw the bike as it was approaching. The plaintiff does turn to look at it immediately before impact which is consistent with his evidence that he was concerned that he was in a position of danger. However, there is no indication on the film that he turned in response to seeing the bike even out of the corner of his eye. 36 There was a discussion with Mr Burton about whether he had positioned the stunt men so that it was impossible for them to see the bike approach them in their peripheral vision. Evidence was given of the original position of the stunt actors, and Mr Page, which indicated that the actors would be looking south of east with a capacity to see the bike approaching out of the corner of their eyes. When the actors were moved closer to the gate Mr Page's position was altered so that the actors were now required to look north of east if they were to see Mr Page's cue. I am satisfied that this denied them any effective capacity to see the approaching bike. 37 Mr Burton says that he recalls telling both actors to keep the bike in their peripheral view. This may have been the case in the morning but the altered positions in the afternoon made this impossible. Although Mr Burton says that he considered at the time that the actors would be able to see the bike out of their peripheral vision, the film of the event confirms that this could not have been the case. When Mr Burton said: "I wouldn't do it any other way" he confirms the approach which should have been adopted. However, I am satisfied that it was not adopted on this occasion. 38 In an accident witness report dated 7 June 1999, Mr Burton said: "It was one of three set ups left to do that day. It was the same scene we had been on all day. It had been rehearsed and shot previously" "They (the gate guards) were supposed to dive out of the way. The individual that got injured did not move and was struck by the motorcycle. He stood there frozen and did not move. The other guy moved and was not hurt" 39 In saying that "It had been rehearsed and shot previously" it is unclear whether Mr Burton was referring to previous rehearsals in the morning or was saying that there had been a rehearsal after lunch. In any case, it is inconsistent with the evidence in Mr McDonald's accident report. 40 Mr Burton recalls there being a rehearsal after the actors were repositioned. His evidence is that there had to have been a rehearsal because the actors and cameras had been moved. The plaintiff says this was not the case. I accept his evidence. The scene was not rehearsed with the "stuntmen in their changed positions."

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Positioning of the stuntmen 41 The film of the incident was taken from a camera positioned slightly toward the western side of the bridge. The plaintiff was positioned on the western side with Mr Heaney to the east of him. The film shows the motorbike making direct contact with the plaintiff as he turned. This would suggest that rather than travelling down the centre of the bridge the bike was off line and had moved to the west. However, whether this is what actually happened or is the impression given because of the camera angles and the actual positioning of the actors cannot be determined. However, Mr Heaney does not move and the motorcycle does not impact upon him. This may have been because he was positioned away from the mid line of the bridge rather than because the bike had veered to the west. 42 The scene was reshot on the day after the accident. On this occasion the actors were positioned further apart and taken clearly out of the path of the bike. Mr Burton said: "After the incident I wasn't about to put anybody anywhere near the, that motor cycle and the traveller. … I made a change so I wouldn't hurt somebody else with a faulty rig." 43 This statement suggests that Mr Burton believes that the plaintiff's accident was caused by a faulty traveller. Mr McDonald was of the same view. Whether or not the traveller was faulty it is apparent that the plaintiff was positioned in a location where, unless adequate warning, which allowed him to fall out of the way, was given, he was at significant risk of being hit by the motorcycle. 44 Mr Burton was asked: "Q: There was absolutely no need for the stunt men to be put in the path of the motor cycle in order to get the shot you desired or the impression you wanted, correct? A: You know, you know, you're asking me a question that, that is highly - yes, it was. It was very much so. It's a creative thing. You have to make it exciting and keep it safe and you, you're saying it wasn't necessary does not mean it's not necessary. Q: I am putting to you, Mr Burton, that you created … A: It was necessary. Q: … the effect you wanted the very next day without having people in the path of the motor cycle, didn't you? A: No. I compromised. Q: Just as you could have the day earlier in the interests of safety, correct? A: No. Q: Why do you say no Mr Burton? A: Because I made a compromise the second day after the accident. I had no idea that the man was going to stand there and not move out of the way. Q: Because you thought … A: He saw the … Q: … the motor cycle was coming? A: He saw the bike coming, as you just said, and elected to stand there instead of jump out of the way as the other man did. I don't mean to be mean, you have to take some, when - as a stunt man you have to take responsibility to get out of the way and if it is ahead of the cue you've got to leave. That responsibility is yours. … Q: Mr Burton you admit do you not that you had some responsibility to ensure the safety of this stunt? A: As I do with all stunts and all action on all of the movies that I do. Yes I have responsibility." 45 Mr Burton's response that the other stuntman, Mr Heaney, got out of the way of the motor cycle is not consistent with the action which can be observed on the film of the event. Mr Heaney had not moved by the time the plaintiff had been hit. The evidence of others about the accident

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Factual conclusion 51 I have already indicated that I accept the plaintiff's evidence. I am completely satisfied that both the plaintiff and Mr Heaney were repositioned for the afternoon shoot closer to the gate to Bare Island than previously. They were moved approximately "8 feet." This would have reduced the time between when the motorcycle came into view and when it passed over them. The plaintiff submitted that that difference was significant but in the scheme of this event I am satisfied that this difference in timing did not materially contribute to the accident. 52 However, I am satisfied that the actors were moved closer together. The plaintiff was placed in a position where it was clearly foreseeable that unless he was able to move out of the way he would be hit by the motor cycle as it came across. He had been instructed to look away from the direction of the bike which he could not see in his peripheral vision. Accordingly, if he was to avoid injury he was entirely dependent upon an accurate cue which had to be given visually. Mr Woodward who has worked in the stunt industry since 1981 gave evidence that placing a stunt person in this position made the stunt more dangerous. In the plaintiff's case that danger materialised when the visual cue was not given. There may have been an oral cue but because of the noise on site that would have been useless. The risk to the plaintiff was increased by the fact that the sequence was not rehearsed. 53 Although Mr Page was the safety officer on site and there were other people who played part in the events on the day of the accident it was the defendant who directed that the plaintiff be positioned in the path of the motor bike. In his role as a director he required this position to be adopted. To my mind he both exercised his authority as the second unit director but he also in part took upon the role of stunt coordinator. He demanded that the scene be configured as he required it, leaving it for others to work out the detail. His personality and manner on this occasion were such that it was unlikely that any one on the site would have questioned his direction or argued that the proposed sequence created unacceptable risks.

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Stunt Industry expert evidence in relation to liability Mr Scott Leva 54 Mr Scott Leva has over 29 years experience working as a stuntman, stunt co-ordinator and second unit director. He examined the documents including incident reports and viewed the footage of the incident and concluded that the defendant had no responsibility for the accident. 55 Mr Leva believes that Mr McDonald should have been in charge of cuing the gate guards, making sure they could see the bike and rehearsing the scene. "Even if the Director was to ask the stunt performers to turn their backs to the bike, the stunt coordinator should have re directed his performers to make sure they did have a visual on the Bike." 56 He says the Stunt coordinator is responsible for ensuring that stunts can be safely performed. "Some directors will ask for extremely dangerous set ups. In most cases they do not know better when they are looking at their shot. It then falls to the Stunt coordinator to tell them what can and cannot be done." 57 Mr Leva does not believe that the Second Unit Director can assume the role of stunt coordinator unless contracted to do so or there is no other qualified stunt coordinator on set. He says in this case there was nothing to suggest that Mr Burton was contracted to be a stunt coordinator or assumed such a role. 58 In relation to cueing, Mr Leva says "the cues should have been visual, not verbal. With explosions and gunfire going on at the same time, the chances of hearing a verbal cue were extremely limited. Further, I observed the Mr Connolly wore ear plugs, which would have severely inhibited his ability to hear the verbal cues." 59 In Mr Leva's opinion, "… the stunt performers should have had some visual perspective of the bike. They could have been placed in a way that looks as though they are not seeing the bike, but can actually see it from take off to landing. This was proven when the bike went out of control during rehearsal. They saw the bike and were able to get out of the way."

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Mr Lawrence Woodward 61 Mr Woodward has worked as a stuntman, stunt safety officer and stunt coordinator since 1981. He examined documents relating to the accident including accident reports and viewed the footage of the accident. 62 In his opinion "it is within the power of the Second Unit Director to assume the role of stunt co-ordinator and my observations of the video tapes indicate this is what Mr Billy Burton did…my observations are that by his actions Mr Burton took responsibility as stunt co-ordinator early on the day of the shoot. In my opinion, Mr Burton's conduct replaced the designated roles of the Stunt Co-ordinators, Mr McDonald and Mr Smrz." 63 Mr Woodward disagrees with Mr Leva's view that the Second Unit Director cannot have dual roles and assume the role of stunt coordinator unless contracted to do so or unless there is no other qualified stunt coordinator. In his opinion, Mr Burton assumed the role of stunt coordinator when he personally gave instructions to the stuntmen. 64 In cross-examination, Mr Woodward explained that a director can have a say in stunt sequences. He says that while it is appropriate for a director to direct stunt performers in terms of the "emotive action" it is not appropriate for the director to give directions on the physical performing of the action. 65 Mr Woodward also said that it was wrong to designate the safety officer instead of the stunt coordinator to cue the guards. He explains that for a production the size of Mission Impossible II "the safety officer is responsible for the overall safety on set of the cast and crew and therefore cannot be a performer, director or anything else." 66 Mr Woodward also said the scene where the plaintiff was injured should have been performed on the day of the accident in the same manner as it was performed on the following day. He said that it was wrong to move the stuntmen closer together into the trajectory of the motorcycle and to direct them not to look around at the oncoming bike. He also considers that it was wrong for Mr Burton to change the stunt without a rehearsal. He agreed with Mr Leva that there should have been a rehearsal after the guards were moved, and that placing the guards closer together made the stunt more dangerous.

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Findings in relation to liability 67 Consideration of the relevant evidence leads me to the conclusion that the defendant breached the duty of care which he owed to the plaintiff and that breach materially contributed to his injury. I accept that in the ordinary course of a film set the second unit director's responsibilities are confined to defining the scene he wishes to capture and it is for others, especially the stunt coordinator, to organise the set so that the second unit director's requests can be met. The safety officer has responsibility for the safety of the sequence and should intervene if an unreasonable or unnecessary risk is being created. 68 However, on the day of the accident Mr Burton took control of the set to such an extent that the others on the site were required to accept that the plaintiff would be positioned so that, unless the cue was given at precisely the right time, it was highly likely that the plaintiff would be injured. The morning rehearsal very clearly indicated the potential for the motorcycle to get out of control, or at the very least diverge from its intended path. By requiring the plaintiff to stand closer to the midline of the bridge the defendant required him to stand where he was exposed to considerable danger. That danger was greatly enhanced by the command by Mr Burton that the stuntmen were to look away from the approaching motor cycle denying them an opportunity to see it approaching in their peripheral vision. This meant that the plaintiff's safety depended entirely on the effective cue from Mr Page. When that cue was not given, or perhaps was given orally, the danger which Mr Burton's instructions had created became a reality and the plaintiff was severely injured. 69 I am satisfied that whatever may have been the contracted responsibility of each person and their usual role on a film set it was Mr Burton who took charge of the set. It was his demands which created the danger. Furthermore, he was aware of the danger, he had witnessed the morning accident, knew that he was requiring the plaintiff to stand in the path of the motorcycle and that in that location the timing of the warning to the plaintiff to fall out of the way would have to be precise if injury was to be avoided. When the plaintiff raised concerns about his safety Mr Burton, already exasperated by the day's events, effectively ignored them merely indicating that the others on site should work out those matters. 70 I accept that Mr Burton was not entirely to blame for the accident. However, his emphatic direction that the plaintiff be positioned at a point of very considerable danger materially contributed to his injuries. As the person with primary responsibility for the situation, having taken control of the detailed arrangements for the stunt, he owed a duty of care for the plaintiff's safety. The accident which occurred was entirely foreseeable and as the events of the next day demonstrated the scene could have been shot without danger to the plaintiff. At the very least Mr Burton should have required a rehearsal so that cueing signals and the timing of movements in a safe manner could be practised. His determination to capture some footage from what would otherwise have been a wasted day made this impossible.

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i. General damages ii. Interest on general damages iii. Past economic loss iv. Interest on past economic loss v. Loss of superannuation benefit vi. Future loss of earnings vii. Past out-of-pocket expenses viii. Future out-of-pocket expenses ix. Griffiths v Kerkemeyer x. Domestic assistance xi. Fox v Wood i. General damages 75 The plaintiff claimed $250,000 for general damages. The defendant submitted that an appropriate sum was between the range of $80,000 to $100,000. The difference between the figure suggested by the plaintiff and the defendant is partly explained by the fact that the plaintiff alleges injuries to his right shoulder and arm as well as his neck and left arm were all caused by the accident. 76 The plaintiff was born on 5 October 1962 and was 36 years of age at the time of the accident. He is now 44 years of age. He gave evidence that before the accident he was a happy and outgoing person who was very active and enjoyed a variety of sports. He said that after the accident he could no longer enjoy these activities because of the pain and that this made him depressed. 77 The plaintiff was aware almost immediately following the impact that he had fractured bones. He said he was in intense pain and was given morphine injections within a short period. He lost a second tooth when he vomited at the hospital. He suffered a severely comminuted fracture of his right clavicle, a comminuted fracture of the radius and ulnar, facial lacerations, bruising, neck pain and lost two teeth. He was operated on to position his fragmented bones and allow healing. He required a bone graft from his right leg with the insertion of screws and plates. It was a delicate and difficult operation. The plaintiff spent about a week in hospital during which time he suffered severe pain. He returned later for further operations to remove plates and screws. 78 Although the plaintiff undertook a rigorous program of exercise and physiotherapy he was not able to recover his previous physical capacity. He has continued to suffer pain and the loss of his hoped for career as a stuntman has significantly affected his sense of well being. His years of training and hard work led to the significant opportunity presented by a role in Mission Impossible II. From the day of the accident his chosen career has been denied to him. 79 After the plaintiff left hospital he continued to carry his arm in a sling for about 3 months. The pain would wake him at night and for many weeks he was taking up to 12 Panadene Forte tablets per day. He was cared for by his girlfriend of four years after the accident but that relationship ended about a year later. The plaintiff said that his depression and irritability after the accident caused the break up.

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80 From the time of the accident the plaintiff reported that he had a stiff neck. He gave evidence that about two years after the accident the pain in his neck increased followed by a tingling sensation down his left arm. The plaintiff was referred to Dr Cree, a spinal surgeon who performed an MRI scan and diagnosed cervical damage. There was an issue as to whether these problems on his left side were due to the accident. 81 The hospital records do not show an injury to the neck or left shoulder and arm at the time of the accident. Counsel for the defendant referred to a drawing of a human body in the hospital records which shows a line towards the neck and shoulder region accompanied by some unclear words. It was suggested that those words said "not tender". The plaintiff gave evidence that although he did not experience pain or tingling down his left arm before June or July 2001 he did experience stiffness in the neck. He said that since the accident he always had a stiff neck and had told his medical carers about this problem. The plaintiff also recalls telling Dr Solomon, Dr Little and his physiotherapist Mr Neville shortly after the accident of a problem of veering to the left when walking. 82 He said that he did not complain to the Prince of Wales Hospital on 7 June 1999 of any pain in his left arm but only that he had a stiff neck. He said that he did not complain to Dr Solomon about his left arm on 9 June 1999 because "I was more concerned with the rest of my body at the time, it took over the pain I was having anywhere else, the shoulder and the forearm." The plaintiff said that he complained to his doctors when the symptoms of his left arm became more severe in June or July 2001 which was the first time his pain had "progressed from pain in the neck to pain in the arm." 83 In cross-examination the plaintiff maintained that he had a stiff neck from the time of the accident. He said that it was not his primary concern because it was overshadowed by the pain he was experiencing in his right shoulder and right arm. 84 The plaintiff was asked: "Q. Had you had pain or a sensory change in your left arm or left hand whilst you were in hospital at Prince of Wales private hospital you would have told nurses or doctors about that would you not? A. It depends what I was in the most pain from at the time. You tell 'em what's hurting at the time, what the main pain is at the time so they can either give you morphine or put a pack on you or do whatever, so you prioritise where the pain's coming from and that's what I would've done, that's what I've always done." 85 It was put to the plaintiff that he had not experienced neck pain immediately after the accident because the hospital examination notes had recorded "full ROMC spine" which is said to mean full range of movement. The plaintiff did not recall an examination of his spine at the hospital. 86 Counsel for the defendant also submitted that the plaintiff's assertion that he suffered left arm pain from the date of the accident is inconsistent with the report of Dr Darveniza, neurologist who examined the plaintiff on 18 December 2006 and reported that he had become aware of his neck and left arm pain after the injuries to his right side had improved. The plaintiff was cross examined about this: "Q. As the injuries to his first right forequarter improved with time he became aware of persistent neck pain radiating down the outside of the left arm to the hand and fingers." Do you remember saying that to Dr Darvenzia? A. I don't remember but it's not unreasonable. Q. Certainly that's inconsistent with you suffering left arm symptoms from the date of the accident isn't it? A. It's not - it's not from having it been stiff. Now stiff is stiff. Stiff is stiff neck, stiff body. You can imagine I got hit by this motorcycle. My entire body was to the point it was not my body anymore, right. The shoulder pain, the forearm pain, that was to the forefront. The rest of the body felt like I was in someone else's body and it was foreign to me. I was stiff, I was like I said I was like I was in somebody else's body. What was most concerning one day may be not as concerning the next day because something else felt wrong.

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Counsel's submissions 99 Counsel for the defendant submitted that the plaintiff's left side problems were not related to the accident because, although Dr Solomon had given precise attention to the plaintiff and his injuries, he did not detect left side problems until some time after the accident. It was also suggested that the opinion of Dr Bowers, contained in his report of 1 March 2000, should be regarded as weak evidence because contrary to the hospital records which revealed no actual injury to the neck, Dr Bowers had found that the investigations performed at Prince of Wales Hospital demonstrated soft tissue injury to the neck. 100 The defendant relies on the evidence of Dr Spira who was primarily concerned with whether there was an observable impact injury at the time of the accident or some direct relationship between the impact and later symptoms. However, the other doctors accepted that the initial impact may not have given rise to symptoms which immediately materialised but rather put stressors on the spine which leading to an accelerated deterioration. 101 I am satisfied to the relevant standard that the plaintiff's problems with his neck and left side were as a result of the accident. No other cause can be identified. Although natural deterioration was a possibility I accept the evidence of the doctors who believe that the severity of the collision with the motorcycle was the cause of the deterioration. In my view the accident was the cause of the problems in the plaintiff's left arm. 102 There is no doubt the plaintiff suffered severe and painful injuries. Apart from his physical problems he suffered the psychological impact from the loss of his chosen occupation. In my opinion an appropriate award of general damages is the sum of $140,000. The plaintiff would have experienced the greatest pain and endured frequent hospitalisation and rehabilitation treatments during the years immediately following the accident. Regrettably as I discuss below, his life will almost certainly be shortened by his cancer. In these circumstances, I attribute $120,000 of general damages to the past and $20,000 to the future.

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iii. Past economic loss 105 The plaintiff claims $664,907 (after tax) for past economic loss. Alternative proposals were put on behalf of the plaintiff, and on behalf of the defendant as to the appropriate method of calculating the plaintiff's past loss. The plaintiff relied on the reports of Mr Ivey, chartered accountant and business analyst. It was submitted by counsel for the plaintiff that the appropriate method was to consider the earnings of three stuntmen considered comparable to the plaintiff, they being Mr Paul Doyle (also known as Paul Franklin), Mr Brett Praed and Mr Nash Edgerton. The plaintiff's past economic loss claim was based on the average net earnings (including residuals) of these men for the relevant periods of time. 106 The defendant took a different approach. It was submitted that the calculation should be made by taking the plaintiff's taxable income for the year ending 30 June 1999, being $46,788 per anum ($899.79 per week) and deducting one third for tax. This would leave $600 net per week or $249,600 for 8 years to be further reduced by 50% for residual earning capacity. That would leave $124,800 not including reductions for other relevant industry considerations. 107 The assessment of the lost earning capacity and the chance of a plaintiff achieving an identified level of earnings is notoriously difficult. The court is required to do the best it can to achieve a fair result: State of New South Wales v Moss (2000) 54 NSWLR 536. In Norris v Blake [No 2] (1997) 41 NSWLR 49 the plaintiff's earning capacity as an actor was completely destroyed. Although he was young at the time of his injury, he had already established himself as an actor with a promising future. The issue at trial and on appeal was how the value of his lost earning capacity was to be assessed given that his injury had occurred at an early stage of his career where his potential had not translated into concrete earnings. 108 As in Norris, the plaintiff's earning capacity in the present case was interrupted before a pattern of actual earning could be established. It is not possible to point to the income which his earning capacity was yielding and use that as the basis to calculate what his earning capacity would have been. The Court of Appeal in Norris explained (at [73]) that the proper approach to compensation for the loss of earning capacity in this situation would be to assess what the plaintiff would have most likely earned during the rest of his working life, and make an adjustment for contingencies which may include the possibility that the plaintiff might have done far better. 109 I am satisfied, having regard to the medical evidence that because of the accident the plaintiff lost all capacity to work as a stuntman. But for his supervening illness, an issue to which I will return, I am satisfied that but for the accident the plaintiff would have been able to work as a stuntman for an indefinite period and would, as happens with many people in the industry have progressed to be a stunt coordinator. However, progress beyond performing as a stunt actor would have been unlikely prior to this trial. I consider the plaintiff's lost earning capacity in detail below.

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Residual earning capacity 110 The accident not only destroyed the plaintiff's capacity to work as a stunt performer, it seriously affected his capacity for any permanent employment. The plaintiff submitted that having regard to his age, geographical location, injuries and disabilities, he was and is unemployable and has had no residual earning capacity since the accident. The evidence indicates that the plaintiff engaged in significant attempts to rehabilitate his body with a view to returning to his pre-injury employment. He was not able to do this. He has made other efforts to obtain employment and has undertaken courses to try and retrain himself to work in the film industry. The plaintiff's attempts to obtain employment which was compatible with his physical injuries have failed. I accept his evidence that he has been unable to successfully obtain employment as a sales person, property manager, real estate salesman, safety inspector or valuer. I accept the plaintiff when he says that his injuries have limited his capacity to drive and if he sits still for any length of time receives severe pain in his neck and back. 111 The plaintiff was able to obtain a job as an administration assistant and was employed for 7 months. The hours of the job varied. The plaintiff says that having a job made him feel worthwhile although it was physically hard for him. He was unable to sit at a computer for more than 30 minutes at a time and would suffer pain in his neck, right shoulder and right forearm. He was only able to work if he took up to 10 Panadene Forte per day. Ultimately he became intolerant of the pain and was unable to continue his employment. 112 Because of the plaintiff's physical strength and capacity it has been understandably difficult for him to accept the severe limitations which his accident has imposed. I am satisfied that he has made genuine efforts to gain employment but in the ultimate they proved unsuccessful. In my opinion the accident caused him to entirely lose his capacity for gainful employment.

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Stunt residuals 113 When considering his lost earning capacity it is important to have regard to the somewhat unusual remuneration pattern in the "stunt business." In addition to his earnings for appearing in front of the camera, the plaintiff would have received residual payments from Mission Impossible II and other movies in which he would probably have appeared. 114 According to the Ivey report residuals are generally paid to performers based on a percentage of the producer's profits from worldwide sales for ancillary rights. There was a clause in the plaintiff's contract for Mission Impossible II, which provides for the payment of residuals. 115 Mr Norris who has considerable knowledge of stunt performers (I discuss his evidence in greater detail below) said in his affidavit that the plaintiff would have been on a similar residual structure to Mr Doyle and Mr Praed. Mr Norris's evidence was that a stunt performer often makes more money in ancillary rights flowing from DVD sales than they make from the film being shown in cinemas. He said that the residuals a stunt performer receives for working on an Australian production would be less than for work on international movies. According to Mr Norris, "A conservative estimate for residuals paid in a year to a stunt performer is between $20,000 and $50,000." 116 Mr Darko Tuscan who replaced the plaintiff on Mission Impossible II after the accident was used by the plaintiff as a comparable for the actual earnings he would have earned in Mission Impossible II but not as a general industry comparable. In his calculation of the plaintiff's lost income, Mr Ivey took into account the residuals earned by the comparables and assumed that the residual payments which the plaintiff would receive in relation to his work as a stunt performer on Mission Impossible II were the same as those paid to Mr Tuscan. They totalled $112,886 (before tax) from 2001 to 2006. Other than this evidence, there was no other evidence provided of Mr Tuscan's earnings. 117 The defendant does not accept that Mr Tuscan's stunt residual earnings from Mission Impossible II are a reasonable guide for the plaintiff's loss with respect to that film. It was submitted that it is not clear whether Mr Tuscan only undertook the same role for the same duration as the plaintiff or whether he was engaged for other parts. The defendant questioned why Mr Tuscan was used as a comparable on Mission Impossible II but not in relation to other films. The defendant suggests that in the absence of evidence of Mr Tuscan's other earnings, except from Mission Impossible II, the court should infer that the plaintiff was afraid to rely on Mr Tuscan's earnings because it would not assist his claim. Because Mr Norris had said in cross-examination that after 1999 there was only one major international movie a year in Australia, the defendant submitted that this would have increased competition for work and accordingly residuals should not be calculated on the basis that the plaintiff would have obtained a role in a major international film each year. The defendant's ultimate position in relation to residual payments was that the plaintiff is not entitled to them except with respect to Mission Impossible II. 118 As I have discussed below if he had not been injured the plaintiff would have secured engagements as a stunt performer. He would have received some residuals. However, the evidence does not enable the extent of the residuals to be determined with precision. Although Mr Tuscan earned residuals from Mission Impossible II the terms upon which he was engaged were not disclosed and I was given no evidence of his other earnings. I have included below that the plaintiff's economic loss should be computed by reference to other stunt performers. The income history of those performers includes residuals. In my opinion it is reasonable to conclude that the plaintiff would have received residuals in a similar manner as part of his total income.

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Are Paul Doyle, Brett Praed and Nash Edgerton comparables to the plaintiff? 119 The plaintiff relies on the evidence of Mr Glenn Rhueland and Mr Guy Norris to support the use of the earnings of Messrs Doyle, Praed and Edgerton as comparable stunt performers to the plaintiff. The defendant rejects this submission and says that the plaintiff was a less experienced and skilled stunt performer than those to which he was being compared. 120 Mr Glen Rhueland who is a stunt coordinator gave evidence by telephone link. He said that he had given the plaintiff work as a stuntman during the 1990s. He said that Mr Edgerton and the plaintiff were of the same standard and were being employed for the same work during the 1990s. In cross-examination, Mr Rhueland said that he used Mr Doyle and Mr Praed interchangeably. He described the plaintiff as having significant physical ability as a stunt actor, that he was "quite handy as an actor" and accordingly could have portrayed a character. He had the ability to take a bump and participate in a fight. In his work as a stunt coordinator Mr Rhueland also used Mr Praed and Mr Doyle and said together with the plaintiff in the late 1990s they were up and coming stunt performers. Mr Rhueland said the plaintiff was also good with weapons. 121 Mr Guy Norris also gave evidence. He was previously the owner and director of the Stunt Agency based in Sydney which represented people working in the stunt industry including Messrs Doyle, Praed and Edgerton. Mr Norris believes these men had similar physical attributes and had a similar level of skill and experience to the plaintiff prior to the accident. Mr Norris described the plaintiff as having an extremely high level of dedication and a person who was always trying to better his training and skills. In his affidavit dated 9 December 2005 Mr Norris listed a number of feature films on which Mr Doyle and Mr Praed had been involved and in which he said he could have cast the plaintiff had he not been injured. 122 The defendant tendered an economic loss report by Ms Lindsay, who is a chartered accountant and the director of Forensic Accounting. She said that from a financial perspective the plaintiff was not comparable with the other stunt actors. Based on the income tax returns of Mr Edgerton and Mr Praed and the remittance advices of Mr Praed and Mr Doyle, Ms Lindsay found that: · the plaintiff worked on significantly fewer days than the alleged comparables in 1998 and 1999; · the plaintiff's gross income in 1998 and 1999 was significantly less than that of the alleged comparables being between 18% and 75% of the gross income of the alleged comparables' gross income; and · the plaintiff's residuals in the years 2000 and 2002 for work performed before the accident were significantly less than those of the alleged comparables. 123 Ms Lindsay also noted that there were a number of other factors which indicated that the plaintiff was not comparable with the others. She observed that: · The alleged comparables appeared to own stunt equipment and made claims for depreciation in their income tax returns, where as the plaintiff does not appear to have made any such investment; · Mr Praed and Mr Doyle had corporate trading entities, where as the plaintiff declared his income in his own name; · It appears that Mr Edgerton is involved with many aspects of the stunt and film industry including film making, editing and equipment hiring, whereas the plaintiff does not appear to be involved in such activities · The alleged comparables appear to undertake a significant amount of travel, where as the plaintiff's tax returns indicate that prior to the accident he did not travel for work.

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128 Averaging these figures, the average income (before tax) works out to be $135,000. To calculate the plaintiff's loss of income, it seems that Mr Ivey used the average earnings of the comparables as set out above to represent the plaintiff's "Gross Loss". He then added to this the plaintiff's "Actual Taxable Income" (excluding workers compensation and government benefits) to produce his "Expected Taxable Income". Mr Ivey then calculated the plaintiff's "Expected Net Income" (after tax) and deducted from this, the plaintiff's "Actual Net Income" (after tax) to arrive at his assessment of $664,907 (after tax) for past economic loss. The loss of residuals from Mission Impossible II was factored into this figure. 129 Ms Lindsay said that the plaintiff's income had been overstated because Mr Ivey added the plaintiff's gross loss to his actual taxable income. She says that "it appears that the author of the Ivey Report is suggesting that, but for the accident, the plaintiff would have earned both the income that he actually earned, and the income equivalent to the average of the alleged comparables." Ms Lindsay says that if the plaintiff's earning capacity but for the accident should be measured by reference to the income of comparables then that amount is the full extent of the plaintiff's earning capacity. In response Mr Ivey says that Ms Lindsay's interpretation of his analysis is incorrect and that the plaintiff's actual income is deducted in determining the gross economic loss. 130 In assessing the plaintiff's earning capacity, Ms Lindsay took into account the plaintiff's actual income from working as a stuntman prior to the accident and used the Australian Bureau of Statistics (ABS) which recorded the average weekly total earnings for "Actors, Dancers and Related Professionals/Other Entertainers" to be $676.40 as at May 1998 and $1,508.40 as at May 2006. Because the data between these two dates was not available, Ms Lindsay obtained an approximation for the period from 1999 to 2005 by performing a pro-rata calculation between the two dates. Ms Lindsay also used data of the average weekly earnings for actors, dancers and related professionals from a publication titled "What Jobs Pay" by Mr Rodney Stinson which according to Ms Lindsay is widely used in economic loss quantifications for personal injury matters. Based on this, Ms Lindsay calculated the plaintiff's past economic loss under a number of scenarios. Under her method the plaintiff's annual average earning capacity for the period of past loss based on industry average earnings works out to be $56,000 before tax. 131 Assuming that the plaintiff has no residual earning capacity and would have retired at the end of February 2007, Ms Lindsay calculated the plaintiff's past economic loss to be $277,021(after tax). 132 Counsel for the plaintiff submitted that it was inappropriate for Ms Lindsay to analyse the plaintiff's economic loss by reference to the average salaries of actors and performers in the industry. According to Mr Ivey the industry statistics used by Ms Lindsay are not an appropriate measure of the plaintiff's expected income because they are not specific to stunt performers but cover a broad group of occupations including dancers, comedians and magicians. He also said that because the statistics include a wide range of incomes, the average earnings of the group may not be a reliable estimate of the earnings of stunt performers. Mr Ivey also questioned whether the statistics include residual earnings because the ABS data excludes irregular payments and the Stinson data is based on figures of the "last total pay". In my view, Ms Lindsay's method is not a reliable reflection of the plaintiff's earning capacity. I prefer the use of comparables. In my view the plaintiff's income would have reflected the earnings of the specialised group of performers involved in undertaking stunts. 133 There are nevertheless considerable difficulties in determining the plaintiff's economic loss. The available pool of stunt actors with the plaintiff's particular attributes was small. Accordingly, he would have had to compete for work with other actors most of whom were more established than he was. However, the plaintiff had worked hard to obtain the opportunity to perform in big budget movies. He had achieved this with his role in Mission Impossible II. The extent to which he would have been able to continue to attract work and whether he would have earned at the level of other actors cannot be determined with certainty. The plaintiff's tax returns indicate that his earnings before the accident were not similar to the earnings to those men said to be comparable to him. Counsel for the plaintiff submitted that he had attained this position at the time of the accident. It seems to me that he had not yet reached the same level as the other stunt performers said to be comparable to him. However, I am satisfied that because of his physical capacities, attractive looks and dedication to the industry he would have achieved significant success. To my mind he would have been likely to have earned at 70% of the average rate of the alleged comparables from the time of the accident until his illness this year. 134 The consequence is that the plaintiff is entitled to an amount calculated as 70% of the after tax earnings of the other stunt performers earning from performing as stunt actors from the date of the accident until April this year. I will invite the parties to agree this sum. The April date is defined by the supervening illness which the plaintiff has contracted which, as I discuss below, would have brought to an end his career as a stunt performer. 135 From this must be deducted the plaintiff's workers compensation benefits which he has received to the date of verdict. The details from the workers' compensation insurer show that the actual amount paid to the plaintiff up to and including 21 November 2007 was $169,785.18 which both parties accept as being the actual amount that has been paid.

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Supervening illness/Life expectancy 141 Early in 2007 the plaintiff became aware of pain in the region of his stomach. He was diagnosed with pancreatic cancer in May 2007. Although the plaintiff has embarked upon a rigorous regime of natural medicine in an endeavour to limit or eliminate the cancer the medical evidence indicates that he has a radically shortened life expectancy. Dr Parkin the gastroenterologist who has been caring for the plaintiff since 30 April 2007 gave an opinion that the plaintiff: "almost certainly has locally advanced pancreatic carcinoma and the only real likelihood of 'cure' is aggressive surgery with a Whipple's procedure and possible follow up chemotherapy…His prognosis regardless of therapy is guarded/poor". 142 Evidence in relation to the plaintiff's life expectancy was limited. Dr Levi, a cancer specialist provided statistical information on the issue. He did not interview or examine the plaintiff but considered the medical reports and the results of the MRI performed on 4 May 2007 which revealed a large cystic mass in the plaintiff's pancreas. 143 Under alternative therapy treatment, Dr Levi predicts that the plaintiff has a less than 25 percent chance of surviving beyond 12 months. Dr Levi predicts that the likelihood of the plaintiff being suitable for aggressive surgical treatment in the form of a Whipple procedure is less than 50 percent. If it is assumed that this procedure can be undertaken, Dr Levi estimates that the plaintiff's likelihood of surviving beyond one year is approximately 50 percent, his potential for surviving beyond two years is approximately 25 percent and his potential for surviving beyond 5 years is 10 percent. 144 In the case that the malignancy cannot be operated on and the plaintiff undergoes radiotherapy followed by chemotherapy, Dr Levi estimates that the plaintiff's potential for surviving beyond one year is approximately 35-45 percent, his potential for surviving beyond two years is less than 20 percent and his potential for surviving beyond 5 years is less than 5 percent. 145 Dr Levi also provided an opinion as to when the plaintiff would have become unfit for work as a stunt performer. Taking into account the cancer and excluding any injuries associated with the accident, he estimates that it is likely that the plaintiff would have been unfit for stunt work approximately 2-3 weeks after the first symptoms of pancreatic cancer appeared. His opinion is that: "If he was first seen by Dr Parkin on 30th April 2007 then it is reasonable to estimate that by the beginning of March 2007 he would have suffered sufficient symptoms associated with his pancreatic cancer which would almost certainly have made him unfit to continue working as a stunt performer." 146 Dr Levi was asked to reconsider the plaintiff's life expectancy after new pathology and radiology tests were performed. He found that the results essentially confirm the diagnosis of locally advance pancreatic cancer. In his opinion, the radiology report of 26 June 2007 reveals an increase in the size of a pancreatic mass lesion "which is a strong indication of the progression of the cancer". He treated this report as more reliable than the biochemical changes noted in the pathology report of 18th June 2007 that indicated an improvement in liver function. 147 Dr Levi says that there is now a less than 25 percent chance that surgery will be feasible. Provided that radiotherapy followed by chemotherapy is undertaken in the relatively near future, his opinion did not change from his previous report. 148 The impact of a supervening event has been considered in a number of cases. In Jobling v Associated Dairies Ltd [1982] AC 794 the plaintiff sustained a back injury at work which reduced his earning capacity by 50 percent. Three years later and before the trial, he was found to be suffering from a naturally occurring condition which was unrelated to the accident and totally disabled him from working. The issue was whether the employer was liable to pay damages for loss of earnings for the balance of the plaintiff's working life. The trial judge had assessed damages without reference to the disabling illness. The Court of Appeal and the House of Lords held that the later condition had to be taken into account and the employer was only liable for damages up to the emergence of the later illness because the supervening illness would have overtaken the plaintiff in any event. 149 Several of the judges expressed dissatisfaction with the reasoning in an earlier case of Baker v Willoughby [1970] AC 467 where the House of Lords had held that in assessing the plaintiff's damages for an original injury to his leg, account should not be taken of the amputation of that leg resulting from a subsequent tortious act for which the defendant was not responsible: see eg Lord Edmund-Davies at 807-9; Lord Keith of Kinkel at 815; Lord Bridge of Harwich at 820. 150 In Faulkner v Keffalinos (1971) 45 ALJR 80, the plaintiff was injured in a car accident which reduced his earning capacity. Before the trial, he was injured in another accident that was not the result of a tortious act but his own fault. He did not work after this accident. The general damages awarded by the trial judge were reduced on the basis that he should have taken into account the fact that the plaintiff might have been prevented from earning his previous income by the contingencies of life. 151 Windeyer J distinguished the case from Baker v Willoughby and without making a distinction between subsequent tortious or non-tortious supervening events explained at 85 that: "The impairment of a faculty, such as a capacity to earn money, is not like damage to property. The capacity has no value unless it be exercisable. It is only while, and for so long as, it can be exercised that an impairment of it can produce a pecuniary loss. It is for this reason that in assessing damages for the destruction or reduction of earning capacity an allowance must ordinarily be made for the contingency - if in the particular case it is seen as a reasonable possibility - of interruptions of a man's working life by periods of unemployment, sickness or accident. If in fact any of such things occurs before the assessment has to be made, what would have been allowed for as a possibility has become an actuality: the risk of an interruption of earnings has materialised and a hypothetical deduction to be made in the computation of damages has crystallized. It is therefore a mistake to think of damages recoverable for the consequences of the first accident as diminished by the second accident. So far as the damages result from the impairment of earning capacity, the second accident merely supplies a measure of one thing that must be taken into account, namely the risk of an accident." 152 In the more recent case of DNM Mining Pty Ltd v Barwick [2004] NSWCA 137, Giles JA with whom Santow JA and Windeyer J agreed explained damages for loss of earning capacity at [39]: "Since the court acts on facts rather than speculation where it can, if prior to the hearing there has been an event which would independently have caused loss in whole or part of the lost earning capacity, that event must be taken into account in determining the duration or extent of the exercise of the lost earning capacity and so in arriving at the plaintiff's damages." 153 At [41] he said: "It would be absurd to take account of the contingency of death or illness when hypothetical but refuse to take account of it when a known fact, and similarly for the contingency of accident."

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vi. Future loss of earnings 154 The plaintiff did not challenge Dr Levi's reports except to point out that they are statistical in nature. His case is similar to Jobling and Faulkner in that his cancer is a naturally occurring supervening event. Damages for his loss of future earning capacity must be confined. In my view these tragic events would have denied the plaintiff any capacity to work from early May this year. His future earning capacity would be confined to earning continuing residual payments. 155 There is an issue as to how long the plaintiff will continue to receive stunt residuals. Mr Norris gave evidence that for major films like Mission Impossible II or the Matrix, residuals would flow for about 7 or 8 years. Mr Ivey included a table in his report of the residual payments received by the plaintiff's comparables and Mr Tuscan for major movies. It shows that depending on the size of a movie, a stunt performer can continue to receive residual payments from three to seven years at a decreasing rate. 156 Mr Ivey assumed that the plaintiff would not have been able to work after April 2007 irrespective of the accident. He assessed the plaintiff's loss by reference to the residuals received by the comparable performers and estimated that the total residuals he would receive after April 2007 over the 7 year period would be around 2.5 times the residuals he would have received in his last year of work. Mr Ivey averaged the residuals earned by Mr Edgerton and Mr Praed in the last 3 years to determine that the plaintiff's residual payments in his last year of work would have been $81,638 per annum. Mr Ivey used this as the base value and calculated the stunt residuals to be received in the following years by decreasing the initial base value by 25 percent, then 50 percent, then 40 percent, then 30 percent, then 25 percent, then 20 percent and then 10 percent. Mr Ivey found the present value of the plaintiff's future loss of income over 7 years to be $148,654 (after tax). To this he allowed a discount of 15 percent for vicissitudes, applied a discount rate of 3 percent per annum, adopted 16 October 2007 as the present value date to arrive at $126,356 being the figure claimed by the plaintiff. 157 Ms Lindsay adopted a different approach. She assumed that the plaintiff would have continued to receive residuals for 6 years. She assumed that the residuals would be around 10% of the plaintiff's earning capacity but for the accident, which she calculated as being about $5,000 per annum. According to Ms Lindsay, this figure is equal to the average of the plaintiff's actual residuals since the accident. Ms Lindsay applied a 3% per annum discount rate, assumed a present value date of 2 October 2007 and allowed 15% for vicissitudes. Because I did not accept Ms Lindsay's method of calculating the plaintiff's loss earnings, I cannot accept her calculations of stunt residuals which are based on a percentage of her calculation of the plaintiff's earning capacity. 158 In my opinion the plaintiff would expect to earn residuals in future years. However, the precise extent of those residuals and the exact period over which they may have been earned is impossible to determine. Utilising the comparables and my estimate of the plaintiff's earning capacity in comparison indicates that in his last 3 years until his illness he may have earned $57,146 per year before tax from residuals. These would have continued at a diminishing rate over the succeeding years. Mr Ivey was of the view that appropriate allowance would be made if the damages included residuals assessed at the rate for one year and it was assumed he would have earned a total of about 2.5 times this amount over 7 years. I believe Mr Ivey's approach is appropriate. My calculation indicates a sum of $142,865. The parties are to confirm their agreement in the appropriate sum to be awarded. 159 It would be usual to provide for contingencies or future loss of earning capacity. However, as the residuals are payable for work already completed I see no reason to provide any component for contingencies in relation to the future economic loss comprised exclusively of residuals.

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viii. Future out of pocket expenses 161 The parties were unable to reach an agreement on this head of damage. The plaintiff claims $20,000 for future medication and treatment, which I assume is for the balance of his life expectancy. The plaintiff submits that the treatment regime already undertaken and the evidence of his workers' compensation Insurer's list of payments demonstrates that he requires one visit per month to a GP or specialist at $60 per visit, $12 per week ($48 per month) for painkillers like Panadeine Forte and two physiotherapy, manipulation or massage visits per week at $60 per visit. 162 The defendant although agreeing to the rate of $60.00 per visit does not accept an allowance for any of these expenses. It was submitted that in light of plaintiff's pancreatic cancer and reduced life expectancy no allowance should be made. I do not accept this. As the medical evidence indicates, the plaintiff is likely to have ongoing pain because of the accident. It follows that he will require medication such as painkillers and some form of massage or physiotherapy to manage his pain. 163 The CGU Workers Compensation (NSW) Limited list of payments which the plaintiff relies on to show how regularly he receives treatment was not explained by written or oral submissions. Although the document confirms that the plaintiff has consulted GP's, physiotherapy and massage therapists, it is not clear how many times the plaintiff consults these practitioners on a weekly or monthly basis. The document only shows payments made for remedial massage in 2007 and does not seem to indicate that payments are made to a GP or specialist on a weekly basis. 164 Having regard to this evidence and the plaintiff's treatment history, my view is that one visit to a GP or specialist doctor per week would be excessive. The evidence of Dr Bowers in his report dated 19 January 2007 in relation to future treatment is that: "… he will require an average of eight sessions of physiotherapy per annum. He will likely require analgesic or anti-inflammatory medications costing approximately $40 per month on average in perpetuity. He will require General Practitioner visits once each six months to monitor his condition and prescribe medications. He will require review by a spinal surgeon on average once each three years." 165 I propose to allow the expenses claimed for $48 per month for medication, one visit to a GP or specialist per month at $60 per visit and four physiotherapy or massage visit per month at $60 until 30 June 2009 to take into account the plaintiff's shortened life expectancy. The parties are to calculate the appropriate sum.

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x. Domestic assistance 167 The plaintiff also claims $30,000 for domestic assistance with heavy tasks. This claim is based upon an assessment made by Dr Bowers in his report dated 1 March 2000, where he said that the plaintiff will require three hours per week of domestic assistance for the rest of his life for very heavy home duties. The plaintiff's written submission was that "The evidence indicates a need of 156 hours per year for 7 years at $22 per hour producing a total of $24,024 for the past. This is rounded to $30,000 to allow for the future." As I understand it, the plaintiff claims $24,024 for past domestic assistance and $5,076 for future assistance. 168 The defendant submits that there is no evidence that the plaintiff has been provided with gratuitous or paid care for heavy household tasks for three hours per week and contends that he will not require any domestic assistance in the future. Counsel for the defendant pointed out that Dr Bowers had also said in his report that the plaintiff "does not utilise and home help services" and "at the present time, he is independent with self-care and simple tasks, albeit with aches and pains. He can perform heavy tasks but does so with aches and pains and must modify his method." 169 The plaintiff gave evidence that he cannot do heavy work around the house like push a vacuum cleaner or lawn mower. He said he is able to use a broom and can help his mother lift local shopping but cannot lift heavy boxes or household items. He said that his nephew helps his mother mow the lawn. There will be a need for future attendant care. 170 As there is no record of receipts for past for domestic assistance with heavy tasks, I do not allow damages for past domestic assistance. As for future domestic assistance, I am not persuaded that 3 hours assistance per week is necessary for very heavy home duties. I would limit his claim to one hour per week at $22 per hour, in the sum of $1,761.76 ($22 x 52 weeks/yr x 1.54 years from 14 December 2007 to 9 June 2009).

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xi. Fox v Wood 171 In Fox v Wood (1981) 148 CLR 438 the High Court held that the tax paid on workers compensation payments is recoverable in an action for common law damages. The parties were not able to agree on this head of damage. The plaintiff claims $46,145. This figure is taken from Mr Ivey's calculations which is based on the plaintiff's workers' compensation payment summaries and assessed at the plaintiff's marginal tax rate. 172 The plaintiff submitted that although the workers' compensation insurer had deducted tax this was not the appropriate rate for present purposes because the plaintiff had other income in the years 2002 to 2003 and 2006 which affected his tax rate and placed him in a higher tax bracket. It was submitted that Mr Ivey's Fox v Wood calculations should be adopted because he accounts for the extra tax paid on the workers compensation payments. 173 The defendant does not accept this approach. It was argued that because Fox v Wood damages are limited to the amount of tax deducted from workers compensation payments made to date, there was no basis for Mr Ivey to rely on the plaintiff's hypothetical earnings and tax deductions. According to the defendant, the plaintiff is only entitled to $25,814.20 being the amount described as "weekly benefit government payee tax" that has actually been deducted by the workers compensation insurer, CGU Workers Compensation (NSW) Limited from 7 June 1999 to 8 October 2007. It was submitted that because the object of damages is to put the plaintiff in the same position that he would have been in had he not been injured, he is only entitled to receive his net weekly workers compensation payments and any "tax credit" paid by his insurer to the tax office. What he may have earned other than this and what he had to pay tax on should not impact on the restitutionary obligation of the defendant. 174 Alternatively the defendant submits that the plaintiff was not subject to an increase in taxation on the workers compensation but had taxation imposed on the income he received. The defendant contends that there is no causal connection between any such increase and the injury because his tax assessment was caused by the receipt by him of the totality of his income which had nothing to do with the event in respect of which he sues. It was argued that "the 'increase' in taxation is not caused by the tort but by the receipt of other taxable income. 175 It was further submitted that the "notional" loss was too remote and not reasonably foreseeable because it could not be established that the defendant as an employee of a film production company knew or ought to have known that if he injured the plaintiff there would be a notional increase in the taxation paid by the plaintiff on workers compensation: See Mt Isa Mines Limited v Pusey (1970) 125 CLR 383 at 390; Minister Administering the Environment Planning and Assessment Act 1979 v San Sebastian Pty Ltd and Ors [1983] 2 NSWLR 286 at 295. The defendant further submitted that the court should approach the assessment of damages broadly and not be required to rely upon speculation, assumption, inference and inexactitude to achieve the kind of precision required by the plaintiff: Cattanach v Melchior (2003) 215 CLR 1 at [10]. 176 I accept the defendant's argument. The most appropriate calculation of the tax paid on workers compensation is that which was deducted by the workers' compensation insurer. I allow $25,814.20. 177 The parties are to consider these reasons and agree the outstanding matters. Failing agreement I will make appropriate determinations following which I will invite the parties to bring in appropriate short minutes of order.

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TUESDAY, 18 DECEMBER 2007 178 On 12 December 2007 I published to the parties a draft of my reasons in this matter. I took that course because I was aware of the plaintiff's failing health and was concerned to ensure that the matter could be disposed of in the year 2007. As will be apparent from my reasons I was not aware of the critical nature of the plaintiff's health at that stage but, tragically, he passed away last Friday. I published my reasons in draft because there were a number of matters where I needed the parties' assistance in working out the numerical detail. I provided the parties with an analysis of and ultimately a conclusion in relation to all of the relevant matters. 179 As the draft made plain, there were a number of matters upon which I sought the parties' assistance and, if possible, their agreement. As it happened that agreement came to pass and on Friday I was provided with a document headed, "Consent Orders," and short minutes of order, each of which I understood had been agreed by the parties. I was also informed that the parties wished me to make orders in chambers, and I did so at 10.40am on Friday morning. Consistently with those events I now formally publish my reasons for decision. I also confirm that I have made orders providing for a verdict and judgment for the plaintiff in the sum of $1,018,253.20. I provided, in the orders I made on Friday, that the defendant was to pay the plaintiff's costs, however, I have been informed that there may be a further application in relation to that matter, so I vacate the order which I made on Friday. I attach a copy of the orders which I made on Friday, 14 December 2007. 180 I also publish further a document headed, "Consent Orders," which I have initialled and dated with today's date. That document sets out the breakdown of the various heads of damage claimed by the plaintiff and which were the subject of consideration in my reasons for judgment. 1. General Damages $140,000 2. Interest on General Damages $20,448 3. Past Economic Loss $447,171 4. Interest on Past Economic Loss $120,000 5. Past and Future Superannuation $58,500 6. Future Economic Loss $140,000 7. Past out-of-pocket expenses $51,194 8. Future out-of-pocket expenses $6,132 9. Griffiths v Kerkemeyer $7,315 10. Future Attendant care $1,679 11. Fox v Wood $25,814.20 TOTAL $1,018,253.20

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181 The verdict and judgment is, of course, in a sum consistent with the accumulation of the items claimed and the amounts so determined. 182 Mr Conolly seeks leave to appear for the estate of the plaintiff, to make an application that, rather than a party/party order for costs, I should make some more substantive orders in the plaintiff's favour. The parties are agreed that I should hear that application and determine the ruling I would make but defer entering judgment upon the application until appropriate steps have been taken in relation to the estate of the plaintiff. 183 As I indicated, the parties are agreed that I should receive the evidence and hear argument in relation to the plaintiff's application for an order for indemnity costs having regard to offers which were exchanged in correspondence which is now in evidence. The plaintiff in that correspondence, in a letter dated 5 October 2007, suggested, through his solicitors, that his claim should be assessed at $1,370,548. Notwithstanding that assessment the plaintiff offered to settle at a sum of $990,000. The offer was left open for two days. It was rejected by the defendant, who made a counter offer in a substantially lesser sum. 184 As I have indicated, the offer was made after the evidence and submissions in the case had closed. However, in the course of preparing my reasons for judgment it became plain to me that there were at least two issues turning upon the entitlement to further residual payments upon which I did not have satisfactory submissions and required further assistance from the parties. That assistance was obtained and I was able to provide my reasons in the manner which I have previously indicated. It seems to me that, at the point at which an offer was made, complexities in the proceedings remained, and those complexities needed the assistance of further submissions and, ultimately, resolution by me. The plaintiff, not having made an offer pursuant to the rules, I must determine whether or not it was reasonable for the defendant to have rejected the offer in the circumstances of this case. The relevant principles were discussed by the Court of Appeal in Dunstan v Rickwood (No 2), [2007] NSWCA 266. 185 Having regard to the history of this matter and its inherent complexities I am not persuaded that it was unreasonable for the defendant to have rejected the offer that was made. The evidence in relation to liability was complex and required considerable analysis and thought before I reached a conclusion. Furthermore, there were a number of significant issues in relation to damages which arose in this case for the first time, as far as I am aware. In my opinion, those complexities were such that in the circumstances I am not persuaded that an order other than order for party/party costs should be made. 186 Accordingly, if it be appropriate, I would now reinstate the orders which I made on Friday in relation to costs, which was that the defendant is to pay the plaintiff's costs. It may be that after probate has been granted, or some other step has been taken, it may be necessary, Mr Conolly, for you to approach me to confirm that order but I suspect that the defendants, in the circumstances, would abide by what I just said. 187 BRAHAM: In fact it occurred to me that, perhaps, your Honour would vacate the orders your Honour made earlier today vacating the orders on Friday. 188 HIS HONOUR: That's what I've just done. In so far as I have the power to do it that's what I have just done. If there was any issue in so far as the defendant was concerned you will, no doubt, talk to Mr Conolly and, if needs be, approach me at some later date, but I would assume the defendant would not see that as necessary. 189 BRAHAM: I would make the same assumption, your Honour. 190 HIS HONOUR: There's nothing further I need to do, is there? 191 BRAHAM: Yes there is, your Honour; orders on the cross-claims. I have signed consent orders from the defendant and cross-defendants disposing of the cross-claims. 192 HIS HONOUR: I can just make those orders, can I? 193 BRAHAM: Yes. They don't involve the plaintiff. 194 HIS HONOUR: Yes. There were various cross-claims filed in the matter, the detail of which it was unnecessary for me to examine. However, I understand that the parties have been able to agree to those cross-claims. Accordingly, I make orders on the cross-claims in accordance with the consent orders, which I have initialled and dated. A copy of these orders is attached. 195 BRAHAM: Yes, if your Honour pleases. **********

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Judgment (62 paragraphs)

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Cases Cited (9)