Direen v Coad [2005] TASSC 21

Supreme Court of Tasmania|2005-04-05|Before: Evans J

CITATION: Direen v Coad [2005] TASSC 21

Torts - Negligence - Road accident cases - Actions for negligence - Apportionment of damages - Pedestrian accidents - Pedestrian stepped into path of vehicle.

Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492; Teubner v Humble (1961 - [1963] HCA 11; 1962) 108 CLR 491, referred to.

Damages - Particular awards of general damages - Tasmania - Leg, abdominal, head and facial injuries - Aged 23 unemployed - Gross award $208,055.47 including $40,000 for general damages.

Judgment Number: [2005] TASSC 21

1 The plaintiff sues the defendant for damages for injuries suffered by the plaintiff when he, a pedestrian, was struck by a motor vehicle driven by the defendant. The accident occurred at about 12.20am on Sunday, 27 January 2002, on the Channel Highway at Cygnet. At the time the defendant was driving his Toyota Hilux utility in an easterly direction from Cygnet towards Nicholls Rivulet Road; his ultimate destination was Conningham. He was following a Toyota Coaster bus driven by Hilary Direen. The plaintiff, in the company of a friend, Amanda McCaw, was walking beside the highway in the opposite direction to these vehicles. He was walking on the left hand verge of the highway viewed from the direction in which the vehicles were travelling. Ms McCaw was on the other side of the highway. The bus passed the plaintiff without apparent difficulty, but the defendant's utility did not; the front left hand corner of the utility struck the plaintiff, severely injuring him.

2 The plaintiff was 23 years of age at the time of the accident. On the day prior to the accident, Australia Day, the plaintiff awoke between 9am and 10am. During the day, he and a friend shared about 10 cans of draught beer which were left over from the previous night's activities and late that day they walked to the nearby home of friends. At about 9pm to 10pm, the plaintiff left that home with his cousin, Nicholas Direen, who drove the plaintiff and three others, including Amanda McCaw, to Nicholas Direen's residence on the northern side of the Channel Highway, Cygnet. At that residence, the plaintiff drank 4 to 5 stubbies of home brewed beer. Shortly after midnight, the plaintiff, having declined his cousin's offer of a bed for the night, left the residence with Ms McCaw to walk to their respective homes in Cygnet. The plaintiff was wearing dark clothing. The plaintiff estimates that he had consumed about 11 cans or stubbies of beer over the 15 hours prior to his departure from his cousin's residence and that 4 to 5 of them had been consumed in the prior three hours. As to his sobriety, the plaintiff, no stranger to alcohol, said he was drunk but he felt capable of getting himself home. Ms McCaw said she had seen the plaintiff a lot worse affected by alcohol.

3 There is a concrete footpath on the southern side of the highway opposite the residence of Nicholas Direen. On the northern side of the highway there is no footpath, but the width and state of the verge is such that it can be used by pedestrians. Upon leaving the residence, the plaintiff and Ms McCaw walked west towards Cygnet on the northern side of the highway. The accident occurred on a slight left hand bend in the highway, viewed from the direction in which the plaintiff and Ms McCaw were walking, about 250 metres west of the residence. Photographs taken of the verge on the northern side of the highway following the accident show a piece of glass and a piece of perspex which probably came from the utility. I conclude, in large part from the position of these items that the point of collision was about 5 metres west of a guide post on the northern side of the highway. That point is roughly 12 metres north east of a street light on the southern side of the highway. In the vicinity of the accident, all street lights along the highway are on its southern side. From the northern verge of the highway at the point of collision, a pedestrian would have a clear view for at least 150 metres west along the highway. At the point of collision, the verge on the northern side of the highway between its bitumen edge and an adjacent wire fence was 2 metres; the sealed surface of the highway was 5.6 metres wide and the northern lane of the highway was 3 metres wide. On the southern side of the highway was a concrete footpath 1.2 metres wide.

4 After the plaintiff and Ms McCaw had walked approximately 150 metres from Nicholas Direen's residence, she crossed the highway from verge on its northern side to the footpath on its southern side as she felt it was safer to walk on that footpath. The plaintiff remained on the northern side of the highway.

5 In a statement made to police on 7 February 2002, when he was still hospitalised and was taking medication, the plaintiff said of his recall of what had occurred following his departure from Nicolas Direen's residence:

"Amanda and I left after midnight I'm not sure what time it was and started walking back to Cygnet. We hadn't gone very far along the road from Nick's place is about all I can remember. I was walking on the right hand side of the road towards the on coming traffic from Cygnet. I do remember walking on the grass verge beside the road hitching a ride.

I don't recall anything else about the accident or that night. All I can remember is coming too in hospital a couple of day's later."

6 In evidence, the plaintiff said that after leaving the residence of Nicholas Direen, he and Ms McCaw walked towards Cygnet on the northern side of the highway for about 500 metres (I find that this estimate of distance is erroneous) where they planned to cross the road to start hitch hiking. The plaintiff said that Ms McCaw saw headlights, dashed across the road and called for him to follow as cars were coming; she was repeatedly yelling "Quick, quick" to him, but he did not think he had sufficient time to cross the highway and remained on its northern side. He initially said that when he first saw a set of headlights approaching, the vehicle was only a few car lengths away and he distinctly remembers taking a step or two back from the highway and waiting for the cars to pass. He said his last memory was of moving away from the highway and a large vehicle passing him. At a later point in his evidence, he said that on seeing one set of headlights, he stepped away from the highway and continued down the verge.

7 Save where corroborated by other evidence, I am not prepared to rely on the plaintiff's evidence of what occurred from the time he left the residence and the accident. In view of his state of intoxication at that time and the trauma he suffered when struck, there is a real prospect that if he has a recall of what then occurred, the recall is not reliable. Bearing in mind his statement on 7 February 2002 as to his lack of recall, I am not prepared to accept that he now has an actual recall of what occurred. In reaching this conclusion, I recognise that the statement was made within about four days of the plaintiff's first recall of post-accident events and at a time when he was taking medication. Whilst I readily accept that his recall may have improved since 7 February 2002, his evidence smacks of reconstruction and I specifically reject his evidence that upon seeing the lights of an approaching vehicle, he took one or two steps back and waited for it to pass. From the evidence of Hilary Direen, which finds some support in the evidence of Ms McCaw, I conclude that as the bus passed the plaintiff, he continued walking along the verge of the highway in the direction of Cygnet.

8 Ms McCaw gave evidence that as she was nearing the point where the accident occurred, she observed the lights of vehicles travelling towards her; she called to the plaintiff and told him of their approach, and she did so because of her concern for his safety and because she wanted to be sure that he had seen them. Ms McCaw said she called to the plaintiff "There's couple of cars coming". I do not accept that she specifically mentioned "a couple of cars". Her evidence is that what prompted her to call to the plaintiff was the reflection of approaching vehicle lights rather than the actual headlights, so it is most unlikely that she would have concluded and specified that more than one vehicle was approaching. In my view, her evidence as to this is a manifestation of her inclination to assist the plaintiff, in this instance, by giving evidence that suggests that he must have been aware that two vehicles were approaching and accordingly that he would not have stepped on to the roadway after the first vehicle had passed. The conclusion I draw from her evidence of calling to the plaintiff is that she was concerned that the plaintiff's state was such that he might not hear or see the approaching vehicle or vehicles and that he might step on to the highway. When she called to the plaintiff, he was a little ahead of her and on the other side of the highway and due to the slight left hand bend in the highway he was in a better position than she to see on-coming vehicles. Whilst she could only initially see the reflection of the lights of on-coming vehicles, the plaintiff would have had a direct view of oncoming vehicles down the highway.

9 Consistent with the evidence of the driver of the bus, Hilary Direen, I find that as the bus passed the plaintiff and Ms McCaw, the plaintiff was walking with his head down along the verge of the highway just off its bitumen edge. Ms McCaw said that after the bus passed the plaintiff, he continued walking and was struck by the utility that was about 1 to 1½ car lengths behind the bus. As to the plaintiff's position when he was struck, she said "From my position he looked like he was off the road".

10 Within a short time of the occurrence of the accident, the defendant's mother, Patricia Coad, arrived at the scene and spoke to the defendant. As she did so, a young lady, who I am satisfied was Ms McCaw, said to the defendant's mother, "It wasn't his fault, ... Tim was crossing the road to me". In evidence, Ms McCaw said that if that was what she said to the defendant's mother, "It must have been because I was in shock. Because I couldn't think clearly after the accident". She denied seeing the plaintiff start to cross the road and said he was still walking towards, and facing towards, Cygnet, when he was struck.

11 Hilary Direen gave evidence that on the night of the accident, he was driving his bus out of Cygnet along the Channel Highway and, by arrangement, the defendant was driving behind him because the defendant did not know the whereabouts of the residence to which they were going at Conningham. Mr Hilary Direen said his speed as he drove across a bridge, which I find to be about 150 metres from the scene of the accident, was about 50 kilometres per hour and that at that time the defendant's utility was about 30 metres behind the bus. He said that the headlights of the bus were on full beam and that upon seeing a female, whom I find to be Ms McCaw, on the right hand side of the highway, he took his foot off the accelerator; almost immediately he saw Ms McCaw, he saw a man walking on the left hand side of the highway, whom I find to be the plaintiff. Mr Direen said the man was walking with his head down, just on the gravel verge and just off the bitumen edge of the highway. I find that at the time Mr Direen first saw Ms McCaw and the plaintiff, they were about four car lengths from the bus; this finding reflects a statement Mr Direen made to a solicitor acting for the plaintiff about a week after the accident.

12 Simon Coad, the defendant, was 19 years of age at the time of the accident. He gave evidence that immediately prior to the accident, he was driving his utility behind Mr Direen's bus, his intention being to follow it to Conningham. When interviewed by the police a little over seven months after the accident, the defendant said, with reference to the accident:

"At the time it was foggy and visibility was poor. I would have been doing about 45kmph at the time and I would have been about 50 metres behind the bus. I didn't see this male person at all before I hit him. He was wearing dark clothing and stuff. I hit this person with the left hand front corner of my vehicle."

When giving evidence, the defendant estimated his speed at the relevant time at 45 kilometres per hour and the distance of the utility behind the bus at 30 metres.

13 I find that before Mr Hilary Direen took his foot off the accelerator of the bus upon seeing Ms McCaw, he was travelling at about 50 kilometres per hour. Mr Direen is a most experienced driver and I accept his evidence as the most reliable evidence before me as to speed. I find that in following the bus, the defendant was travelling at the same speed as the bus, that is, about 50 kilometres per hour, and that he was travelling close behind the bus at a distance of between 30 metres (Mr Hilary Direen's estimate) and 1 to 1½ vehicle lengths (Ms McCaw's estimate). A finding that the utility was closer than 30 metres from the bus is consistent with Mr Hilary Direen's evidence that upon seeing Ms McCaw, he took his foot off the accelerator. The defendant said he did not change speed during the period shortly prior to impact; accordingly it is likely that the utility closed slightly on the bus. The defendant's evidence that the lights of his utility were on low beam and that he could not see beyond the rear of the bus also suggests that he was close to the bus.

14 In evidence, the defendant said that because of fog, visibility was reduced, although he could see houses and lights. He attributed the fog to an earlier thunder storm. Ms McCaw had no recall of any fog that night. The plaintiff said there were little wisps or patches of fog about. Mr Hilary Direen said there were little patches of fog, up to one metre high, coming off the road like wisps of steam. I find that in the vicinity of the accident there were occasional patches of fog or steam rising from the ground but that it is unlikely that they relevantly interfered with the vision of any of those involved.

15 In his statement to the police, the defendant said that he did not see the plaintiff at all before impact. In evidence, the defendant said that he did not see the plaintiff until impact or possibly a split second prior to impact and he did not see Ms McCaw at all until he returned to the scene following impact. I find that the defendant did not see the plaintiff until the virtual instant of impact.

16 Consistent with the defendant's evidence and damage caused to his utility, I find that the plaintiff was struck by the front of the utility at its left corner directly in front of its left front tyre. Notwithstanding that the utility was fitted with bullbars, upon impact its front left headlight was broken and the plaintiff was thrown up on to and over the left hand side of its bonnet and left guard. Consistent with the injuries suffered by the plaintiff and the evidence of Ms McCaw, I consider it probable that at the time of impact, the plaintiff was roughly facing the utility rather than across the highway.

17 In evidence, the defendant said that at the time of impact, his utility was travelling on the bitumen; it was definitely on the bitumen and its left tyres were about 2 feet on to the roadway from its bitumen edge. He said that the right side of the utility was not over the centre line of the roadway. He said he would have noticed had his vehicle strayed off the bitumen on to the verge.

18 I am satisfied that the defendant's evidence was honestly given. My satisfaction as to this is based on my impression of him as he gave evidence and, in particular, the integrity he manifested immediately following the accident. Nevertheless, as can be seen from some of the findings I have already made, I am not satisfied that all of the defendant's evidence was reliable, in part because he was not an acute witness and he obviously had difficulty in understanding some questions and in articulating some answers. I do, however, accept the reliability and honesty of the defendant's evidence that his utility did not leave the bitumen roadway. I consider it to be almost inevitable that he would have noticed had it done so.

19 I find that at the point of impact, the tyres of the defendant's utility were not off the bitumen surface of the roadway and the plaintiff was on the edge of that surface, he having stepped to his left on to the bitumen almost immediately after the bus passed, with a view to crossing the roadway as he continued in the direction of Cygnet. Matters that influence me in making this finding include the following:

* I accept the defendant's evidence that his utility did not leave the bitumen surface of the roadway.

* Ms McCaw's statement to the defendant's mother to the effect that it was not the defendant's fault as the plaintiff was crossing the roadway.

* Ms McCaw had encouraged the plaintiff to join her on the other side of the roadway where there was a concrete path. It was logical for the plaintiff to do so as there was no made footpath where he was walking.

* I conclude from the evidence as to the plaintiff's intoxication and Ms McCaw's concern that the plaintiff should move from the verge on the northern side of the roadway to the footpath on the southern side of the roadway, that the plaintiff's state was such that he might not see or hear an approaching vehicle and might stray on to the roadway when it was dangerous to do so. I conclude that the bus initially obstructed the plaintiff's view of the utility and the plaintiff, who was walking with his head down, stepped on to the roadway without noticing the utility.

* After the accident, no tyre marks were observed off the bitumen edge of the highway near the point of impact. Rodney Browning, the first police officer to the scene, looked for and found no evidence that the utility had left the sealed portion of the roadway. A police accident investigator and a police photographer attended the scene of the accident about an hour after its occurrence. The photographer did not give evidence, but I infer from her photographs that she did not observe any tyre marks. The accident investigator, Graeme Hobbs, said that he would have looked for tyre marks and noted any that he saw. He did not note any. At the time of the accident, the verge was moist and the tread on the utility's tyres was pronounced. Had the utility left the sealed portion of the roadway, I would have expected its tyre marks to have been apparent.

* The possibility that the curve in the roadway caused the defendant's vehicle to stray on to the verge is not high as the defendant was familiar with the road.

* The position of the piece of glass and piece of perspex, which can be seen in photographs taken of the verge following the accident and which probably came from the utility, together with evidence as to where the plaintiff came to rest following the accident, do not assist in establishing whether the plaintiff was just on or just off the sealed roadway at the time of impact.

20 The speed limit governing the section of roadway where the accident occurred was 60 kilometres per hour. Although there were wisps of fog about, I do not consider that their presence played any part in what occurred or that their presence, coupled with any other circumstance, warranted the defendant driving at a speed of less than 50 kilometres per hour. I am, however, satisfied that the defendant's failure to see the plaintiff prior to the instant of impact was a breach of his duty of care to the plaintiff and flows from his failure to travel a sufficient distance behind the bus. At 50 kilometres per hour, the defendant was travelling at just short of 14 metres per second. For a distance of at least 150 metres prior to the point of impact there was nothing to obstruct the defendant's view of the plaintiff besides the bus. The bus was obstructing the defendant's view to its left and beyond it, so it was likely to obstruct his view of any person, animal, vehicle or the like ahead of the bus that was, or was about to, intrude on to the roadway. In these circumstances, it was incumbent on the defendant to travel a sufficient distance behind the bus to allow him to see and manoeuvre to avoid such an intrusion. He was not doing so. He did not see the plaintiff until the instant of impact.

21 As to contributory negligence, the issue is whether the plaintiff's injuries were suffered partly as a result of his own failure to take care for his safety. Plainly they were. In apportioning responsibility, I am guided by the following passage from the joint judgment of the five justices who constituted the court in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494:

"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] UKHL 4; (1953) AC 663, at p 682; Smith v McIntyre (1958) Tas SR 36, at pp 42-49 and Broadhurst v Millman [1976] VicRp 15; (1976) VR 208, at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."

As this case involves a motor vehicle and a pedestrian, I am also mindful of the following passage from Teubner v Humble (1961 - [1963] HCA 11; 1962) 108 CLR 491, Windeyer J at 504:

"I would say only that the statement that ... the motorist and the pedestrian are on different planes in respect of negligence is, I think, likely to mislead. If it means only that the degree of care that must be exercised in any operation varies with the risk involved, this goes without saying. The question is one of fact. I know of no relevant rule of law except that a man driving a motor car must act as a reasonable and prudent man driving a motor car would act in the circumstances: and a pedestrian must act as would a reasonable and prudent pedestrian in the circumstances. Whether or not either has done or failed to do so is essentially a question of fact. A motor car does not become anything different from what it is by calling it 'a lethal weapon'. Doing so may bring home, if it be not sufficiently obvious, that if the driver of a motor car does not drive carefully he may kill somebody: whereas the carelessness of a pedestrian is a carelessness for his own safety rather than a disregard of the safety of others. But when both are at fault the question is how far in the circumstances did the motorist depart from the standard of care of a reasonable man driving a motor car, and the pedestrian from the standard of care of a reasonable pedestrian."

22 As to the whole conduct of the defendant in relation to the circumstances of the accident, it is significant that his breach was momentary and was not the outcome of an extended period of irresponsibility. He had only just embarked on the journey and had only had a short time to settle on what was a safe distance to drive behind the bus. Notwithstanding that the group of people he was with had been at a hotel, the defendant had not consumed any alcohol as he intended to drive. Whilst it was foreseeable that a pedestrian could be on the northern side of the roadway, the likelihood of a pedestrian being there was low due to the absence of a footpath on that side and the presence of a made footpath on the other side, coupled with the time, 12.20am.

23 The final act of the plaintiff that brought about his injuries was stepping on to the roadway into the path of the defendant's vehicle. Whilst the plaintiff's breach was, like the defendant's, momentary, it was the culmination of a period of irresponsible conduct. In an inebriated state and in dark clothing, the plaintiff chose to walk on the verge of the roadway where there was no made footpath, notwithstanding the presence of a footpath on the other side of the roadway. By this conduct he put himself at some risk for the period of time it took him to walk from the residence to the point of impact. The plaintiff was in a position to see on-coming traffic and on doing so the obvious precaution for him to take was to step back well clear of the roadway. He did not do so on seeing the bus; instead he proceeded along the verge of the roadway with his head down and, without looking, he stepped on to the roadway into the path of the defendant's utility.

24 I assess the plaintiff's responsibility for his injuries at 40 per cent.

25 The plaintiff was born on 13 July 1978. At the time of the accident, 27 January 2002, he was 23 years of age. When the plaintiff was 14 years of age, his father died and this loss caused the plaintiff, in his words, "to run off the rails a little bit". During 1993, the year following his father's death: the plaintiff was on one occasion found so intoxicated as to warrant admission to the Royal Hobart Hospital; he was in grade 10 at school, got into trouble for fighting and stealing and was suspended; and he began using cannabis. In 1994 he enrolled at Elizabeth College but dropped out after a couple of months. He completed his schooling when 15 years of age.

26 About six months after leaving Elizabeth College, he obtained a traineeship with a panel beater. In July/August 1995, about a month prior to completing the traineeship, he dislocated his shoulder whilst playing State league soccer and was laid off. Over the following Christmas period he obtained work with a manufacturer of screen doors and blinds. With the support of Centrelink, he enrolled in a six month land care and environment course that involved various activities including laying garden beds, planting trees, chemical spraying, bricklaying and the like. Whilst undertaking the land care course, he obtained a night filler's job with a supermarket for about 20 hours a week. He stayed in this job for about six months. By late 1998, his mother and elder brothers, Adrian and Brendan, had moved to Perth, Western Australia. At about this time he moved from Hobart to Cygnet. Whist at Cygnet he did a bit of fruit picking and other odd jobs but obtained no regular employment. In June 1999 he moved to Perth to join his mother and brothers. In Perth he was employed from 15 June 1999 until 15 January 2001 working with a sub-contractor to the proprietor of a shopping centre. His work involved a split shift, working as a gardener during the day and a cleaner during the night. During this period of employment he was promoted to the position of leading hand of the crew he worked with and he was able to facilitate the employment of his brother Adrian by the same sub-contractor for a short period. The plaintiff terminated his employment in January 2001 in order to return to Hobart and rejoin a girlfriend he had left behind when he moved to Perth. That relationship failed within about seven months of his return. Shortly after his return he moved to Cygnet where he lived with his brother Brendan, who had previously returned to Tasmania from Perth. During the period of about 12 months between the plaintiff's return from Perth and his accident, he did not obtain employment. He said that after his relationship with his girlfriend broke up, he "got stuck on the alcohol for a while". His abuse of alcohol at this time is demonstrated by an incident on 1 August 2002; he fell asleep whilst intoxicated with his foot on a heater and burnt his heal sufficiently badly to require a skin graft.

27 During the period of about eight years between the conclusion of the plaintiff's schooling and the accident, he demonstrated that he was able to obtain and retain employment. However, he was also unemployed for extended periods during some of which he chose to reside at Cygnet, where he had reduced prospects of obtaining employment. I am satisfied that to a significant degree the plaintiff's employment status has been shaped by his attitude to employment from time to time which has, in turn, been influenced by his consumption of alcohol and cannabis. I conclude that for significant periods the plaintiff has had little interest in obtaining employment. As to cannabis, the plaintiff has been a user since he was 14 years of age. He used to give cannabis up during the soccer season for fitness reasons. He has not played soccer since 1995 when he injured his shoulder, after which he was using, in his words, "a fair bit of cannabis". He said he used cannabis for relaxation purposes after a hard day and was not a consistent user.

28 Following the accident the plaintiff was admitted to the intensive care unit at the Royal Hobart Hospital where he was intubated, ventilated and sedated. He sustained multiple injuries including shaft fractures of both femurs, multiple abdominal perforations in his caecum, jejunum and sigmoid, a fractured mandible, loosened incisors and a closed head injury. His abdominal perforations were repaired via a laparotomy. His bilateral femoral shaft fractures were treated with internal fixation using intramedullary rods with proximal and distal cross fixation. An open reduction and internal fixation was performed on his fractured mandible.

29 He was transferred to Calvary Hospital on 28 January 2002. On 11 February 2002, he was transferred to the Clarke Rehabilitation Unit, St John's Hospital. On 26 February 2002, he was discharged from there to supported accommodation at Cay Lea as he was wheelchair bound and unable to access his accommodation at Cygnet for about six weeks. When he returned to Cygnet, he was mobile on crutches but required the support of community nursing. He was also assisted by his brother.

30 In his evidence-in-chief and initially in the course of cross-examination, the plaintiff maintained that for 18 months, until about August 2003, he could not walk without the aid of a crutch. When pressed in cross-examination, the plaintiff acknowledged that by March 2003 he was no longer using crutches and that on 12 March 2003 he had told Mr Wearne, an orthopaedic surgeon, that he could walk one kilometre on even ground without support.

31 In his evidence-in-chief, the plaintiff said that he was still taking a 200 mg slow release pain relief tablet a day. Under cross-examination he acknowledged that between 14 October 2003 and about June 2005, he had only obtained two scripts for such tablets, that is a total of 40 tablets over a period of about 20 months and that he took Panadol as needed. Such a reduced resort to pain relief medication is consistent with a statement the plaintiff made to Mr Wearne on 13 March 2003 that his only medication consisted of an occasional 100 mg tablet of Tramadol.

32 In evidence-in-chief, the plaintiff said that since the accident he had tried to drive a manually geared motor vehicle in a paddock, but had trouble operating the clutch. Apart from this incident, he said that he had not driven since the accident "but I could still drive an automatic I reckon because my right leg is fairly capable still". Under cross-examination the plaintiff acknowledged that on two occasions since the accident, he has been apprehended by police for driving a motor vehicle with a blood alcohol content of about .2 per cent and that at about the time of these offences, which occurred approximately 12 months after his accident, he was driving an automatic vehicle about once every couple of weeks.

33 The plaintiff's evidence in relation to: the length of the period that he needed crutches; his resort to pain relief tablets; and, not driving, reflects poorly on his credit and satisfies me that he has knowingly exaggerated some aspects of his residual disabilities.

34 The plaintiff suffered a closed head injury. At the scene of the accident he was assessed as having a Glasgow Coma Scale score of four. His injuries included a left periorbital haematoma. Whilst some evidence of a CT brain scan taken of the plaintiff on 27 January 2002 suggests that it showed small petechial haemorrhages in the right parietal lobe, I reject this evidence. The report of that scan is consistent with the absence of such haemorrhages. The plaintiff did not suffer from significant retrograde amnesia but did suffer from post-traumatic amnesia. Again, whilst some evidence suggests that the plaintiff's post-traumatic amnesia extended for three weeks, I reject this evidence. It is apparent from the plaintiff's evidence that his recall of events subsequent to the accident goes back to an incident that occurred on 3 February 2002, that is within eight days of the accident.

35 Mr Martin Jackson, a clinical neuropsychologist, assessed the plaintiff on 8 April 2003 and Dr Jennifer Nichols, a clinical psychologist, assessed the plaintiff in January 2004. Mr Jackson gave evidence and also provided evidence of Dr Nichols' assessment. I find that the plaintiff suffered a serious closed head injury in the accident and that in consequence, for a period of about one year, he suffered from memory problems and he continues to suffer with concentration difficulties and impairments in the areas of speed of information processing, multiple task processing and new learning and memory when the information is unstructured ("the processing problems"). These deficiencies are a mild problem, albeit that he is slow at completing some tasks and is less efficient than he was before the accident. Whilst this will affect his work efficiency, in terms of the speed at which he can carry out tasks and some initial difficulties with complex unstructured situations, with repetition he should be able to learn and remember these reasonably well. Importantly, his considerable strengths in the areas of reading, general knowledge and vocabulary remain. The results of some of the tests conducted on the plaintiff place him in the top 5 per cent of the community in these areas. With these results in mind, given the nature of and inconsistency of the plaintiff's pre-accident employment, it must be concluded that he has been a significant under-achiever in relation to employment. This conclusion reinforces the view I have already expressed, that the plaintiff's indifferent employment history can be attributed to his attitude to employment rather than his capacity for employment.

36 Subsequent to the accident, primarily during the first twelve months following the accident, the plaintiff suffered from depression which I find can be attributed to his physical injuries and his closed head injury. Whilst at St John's Hospital Rehabilitation Unit he consulted a psychologist, John Forez, whom he saw on several occasions. He failed to keep his last appointment with Mr Forez and has not again sought the assistance of a psychologist. He discussed his depression with his general practitioner, Dr Nick Cooling, who suggested that the plaintiff take anti-depressant medication, but the plaintiff did not choose to do so. I am not satisfied that the plaintiff has significant on-going problems with depression or anxiety as a consequence of his accident injuries.

37 Many, about 16, of the plaintiff's teeth were cracked, fractured or loosened in the accident. A splint was fitted to stabilise six of his bottom teeth, and the treatment he has required includes root canal procedures, and composite resin fillings. It has been necessary for him to attend for treatment on upwards of 16 occasions. Because of the damage to and loosening of his teeth, initially he had to take care to cut up hard food such as apples and he still finds it difficult to bite such food. In mid-2003, the plaintiff failed to keep three appointments for dental treatment that he needs and, save for the rectification of a failed root canal procedure, he had not taken any steps to obtain that treatment prior to the hearing.

38 The plaintiff has been left with small facial scars below his lip and chin and lengthy scars to his abdomen and each thigh, as well as scars on each knee. His facial scars are of no cosmetic concern so long as he retains facial hair. They would be a minor cosmetic disability if he shaved, and if he was to do so he would need to exercise care to avoid cutting himself where he is scarred. Although the plaintiff expressed concern about the scar down his abdomen, it is largely concealed by hair and I do not consider it, or his other scars, to be of any real significance.

39 Rehabilitation support provided to the plaintiff following the accident included extensive physiotherapy and hydrotherapy twice a week, which was largely focused on strengthening his legs. This support ceased on 29 May 2003. The plaintiff underwent operations on 20 May 2002 to remove the distal cross screws from his left femur and on 14 July 2004 to remove the intramedullary rod and cross screws from his right femur. Following each of these operations, the plaintiff was disabled for about a month to six weeks. A further operation will be required to remove the intramedullary rod from his left femur. Following the removal of a rod, it is necessary for the plaintiff to avoid risk activities such as contact sports for a minimum of six months.

40 As to the plaintiff's disabilities referable to his orthopaedic injuries, Mr Wearne, who examined the plaintiff on 12 March 2003, described the plaintiff as a strong and healthy young man and said that he expected the plaintiff's recovery to continue. He said it was too early to make any assessment of the plaintiff's permanent disability or impairment, but that he, Mr Wearne, would expect the plaintiff to be able to return to any of his former occupations within twelve months of that examination; however, there would have to be a query as to his future ability to engage in heavy labouring-type work because of the possible impairment of his lower limbs. Mr Wearne said that where there has been a violent injury such as the plaintiff's, there is the possibility that he could develop degenerative changes in both knees and both hips at an earlier age than would otherwise have been the case. He expressed the opinion that the plaintiff could develop degenerative changes in both knees and hips in his 50s, rather than in his 70s, the usual age at which people develop degenerative changes in these areas, simply as a result of the passage of time. He said that because of the possibility of early degenerative changes in the plaintiff's weight-bearing joints, he had some reservations about the plaintiff's capacity for heavy labouring work such as concreting, working on a building site or working as a scaffolder, even over the next 20 years. He considered that there is a high probability that the plaintiff would be unable to perform this type of heavy work when over the age of 50 years. With reference to evidence given by the plaintiff that he had difficulty carrying a weight in excess of 10 kilograms, Mr Wearne said that this was consistent with his knowledge of the plaintiff's injuries.

41 When the plaintiff consulted Mr Martin Jackson on 8 April 2003, the plaintiff said that his legs were continuing to get better, although he still had trouble walking up or down stairs or slopes, he continued to experience some pain in his hips and knees, and had difficulty getting down low or squatting. The plaintiff reported no problems with the activities of daily living and said that he undertook all domestic activities.

42 Following the accident, the plaintiff attended a rehabilitation physician, Dr Mark Slatyer. The plaintiff has not sought the assistance of Dr Slatyer since 28 March 2003. Mr John Mills is the orthopaedic surgeon who operated on the plaintiff's injuries. The plaintiff did not consult Mr Mills between 17 January 2003 and 14 July 2004, when he saw Mr Mills for the removal of the intramedullary rod and cross screws from his right femur. Besides this surgery, an appointment with Dr Cooling for the purposes of the surgery and an appointment with Dr Cooling on 16 October 2003, the plaintiff did not seek any treatment referable to his injuries between May 2003 and the hearing. I find that by May 2003, the plaintiff had largely recovered from his injuries and no longer needed regular treatment for the same and that consistent with the evidence of Mr Wearne, and subject to the qualifications expressed by him, the plaintiff was fit to return to his former occupations by about the end of March 2004. I also find that from May 2003 to the end of March 2004 the plaintiff had a capacity to work but not to perform work as physically arduous as the work he had previously performed. Consequent upon the surgery performed on 14 July 2004, the plaintiff was unfit for work for 4 to 6 weeks from that date.

43 It is significant that the plaintiff's retained strengths in the area of reading, general knowledge and vocabulary preserve the considerable advantage he enjoys in obtaining employment in a variety of areas. Nevertheless, as a consequence of his injuries, he has a reduced capacity to obtain, perform and retain employment involving heavy physical work, a reduced working life in the area of physical work, and a reduced capacity to perform work involving the mild processing problems to which I have referred.

44 In the light of evidence of the earnings of the plaintiff's brother Adrian, I find that had the plaintiff done that which he says he wanted to do, that is gone to Western Australia and obtained employment similar to that which he had enjoyed in that State before he returned to Tasmania in January 2001, his after tax earnings during the 2002-2003 financial year would have been about $500 per week. On this basis , the upper limit on his potential loss of earnings during the 28 months when he was totally or partially incapacitated between the date of the accident and September 2004 is an after tax amount of about $56,000. The plaintiff explained his failure to return to Perth in order to obtain work prior to his accident on his impecuniosity. However, he took no steps to borrow the necessary money. His brother Adrian said in evidence that he would be quite happy to lend the plaintiff the fare to Perth. In view of the uncertainty about whether the plaintiff would have in fact sought and obtained employment during the period between the accident and September 2004, and my finding that he only had a partial incapacity for work during 10 months of the period of 28 months in question, I assess his loss of earnings to September 2004 at $20,000.

45 I am satisfied that by reason of the plaintiff's ongoing incapacities and vulnerabilities arising from the accident, he will suffer further earnings losses. There is no empirical basis on which I can assess these losses. The extent to which the plaintiff is employed over the balance of his working life, about 39 years, will depend more on his attitude to employment than his capacity for employment. His conduct prior to and subsequent to his accident suggests that he will continue to have an indifferent attitude to obtaining employment and may only be employed in the future on an intermittent basis. However, the plaintiff has demonstrated considerable fortitude and application in coping with and recovering from his injuries. He was an articulate witness and can present himself well if he chooses. It may be that with maturity his attitude to employment will change and he will be in full time employment for the bulk of the balance of his working life. Whatever course he takes, the vulnerabilities and incapacities caused by the accident may adversely impact on him obtaining and performing employment, the duration of his working life, and the earnings he derives from such employment as he obtains. As to the likely level of his potential earnings, I pay regard to the evidence that during the 2003/2004 financial year the plaintiff's brother Adrian earned $32,000 after tax, in employment similar to that which the plaintiff performed before the accident. I also take into account his potential loss of superannuation contributions. Doing the best I can, I assess his loss in this regard at $50,000.

46 For a period of about 16 months following the accident, the plaintiff was to varying degrees significantly disabled and inconvenienced by his injuries and in receipt of regular treatment. This occurred at a time in the plaintiff's life when most young men are very physically active. He, however, at least during the initial period of his injuries, was very severely disabled and in considerable pain. It is not at all surprising that during this period he suffered from depression. He has been left with the residual incapacities and vulnerabilities to which I have referred and, he being a young man, they will affect him for many years. He also needs to undergo the further treatment referred to in these reasons. I allow the plaintiff $40,000 in respect of this head of damages.

47 The agreed amount allowed in relation to this item is $84,907.03.

49 The plaintiff will need to undergo further surgery to remove the intramedullary rod and related items from his left femur. On the basis of the expenses incurred when this procedure was performed on the plaintiff's right femur, together with an allowance for related medical and physiotherapy treatment, I allow $3,000.

50 The plaintiff requires further dental work and I allow the estimated cost of this work, $5,828.

51 Whilst I am not satisfied that the plaintiff has significant on-going problems with depression or anxiety, consistent with the recommendations of Mr Jackson and Dr Nichols that it is appropriate that he seek the assistance of a psychologist, I allow the plaintiff the cost of this service as estimated by Mr Jackson, $2,106.

52 I consider it reasonable to allow the plaintiff a little less than two attendances on his general practitioner a year. Adjusting the discounted claim as made to reflect this, I allow the plaintiff $1,000.

53 I allow the plaintiff $26 per annum for medication, that is a discounted amount of $362.50.

54 I allow the plaintiff 50 kilometres travel per annum for treatment. Adjusting the discounted claim as made to reflect this, I allow him $350.

55 No allowance is made for the plaintiff's claim for household and gardening assistance, save insofar as regard is had to his reduced physical capacities in the award of general damages.

56 In summary, my assessment of the plaintiff's damage is:

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