Foreshew v Imsies & Anor

Nature of case 1The plaintiff, Mr Dean Foreshew, claims damages from Jiries Imsies, the first defendant, and Kamal Imsies, the second defendant, for serious orthopaedic injuries he received in a road traffic accident that occurred at about 1.30pm on Tuesday 20 March 2007. The claim is governed by the provisions of the Motor Accidents Compensation Act 1999 [" MAC Act "].

Factual background 2At the time of the accident, the plaintiff was riding his motorcycle south along George Street at Mt Druitt on a journey to his place of work. At the same time, the second defendant drove the first defendant's motor vehicle from a south facing stationary position in George Street at a T-intersection with Miller Street, and into a U-turn manoeuvre across the path of the plaintiff's direction of travel. This resulted in a collision between the two vehicles. The defendants have admitted breach of duty of care in respect of the collision.

Issues 3The issues to be determined are, firstly, whether there was contributory negligence on the part of the plaintiff, as alleged by the defendants, and if so, was this causally relevant, and secondly, the measure of the plaintiff's entitlement to damages.

Summary of findings 4I have found that the defendants have established contributory negligence on the part of the plaintiff. I have found that the defendants have failed to establish that the plaintiff's contributory negligence was a relevant cause of the accident. I have assessed the plaintiff's damages in the sum of $1,210,042.

Assessed heads of damage 5The plaintiff's revised claim is for 10 heads of damage. These heads of damage, and the related damages submissions by the parties are summarised below, together with the paragraph references to my assessments of the various heads of damage claimed: Head of Damage claimed by plaintiff Plaintiff's Submissions Defendants' Submissions Award Paragraphs (a) Non-economic loss $350,000 $150,000 $275,000 [92] - [96] (b) Past loss of earnings $168,469 $55,792 $140,000 [97] - [117] (c) Future loss of earning capacity $744,260 $100,000 $527,520 [118] - [174] (d) Past loss of superannuation $18,531 $4,138 $15,400 [175] (e) Future loss of superannuation $81,868 $Nil $58,027 [176] (f) Past gratuitous care $6,160 $6,160 $6,160 [177] (g) Future domestic paid assistance $158,224 $6,914 $134,490 [178] - [199] (h) Childcare - past $754 $754 $754 [200] (i) Future out-of-pocket expenses $89,445 $9,965 $23,000 [201] - [214] (j) Past out-of-pocket expenses $29,691 $29,691 $29,691 [215] Totals $1,647,402 $363,414 $1,210,042 -

Evidence overview 6The plaintiff and his wife Natalie Foreshew were the only witnesses who gave oral evidence. The plaintiff tendered a bundle of 20 medical reports: Exhibit "A". The defendants tendered a bundle of 4 medical reports: Exhibit "1". In addition, the parties tendered a number of other photographic and documentary exhibits relevant to their respective cases on the issues of contributory negligence and on damages. I will refer to those exhibits where relevant.

Procedural ruling 7At the hearing the defendants sought to tender a report dated 27 September 2008 from Mr Grant Johnstone, a consulting engineer and accident reconstruction expert. That tender was rejected. At the time I gave short reasons for taking that course and indicated I would give more detailed reasons in my overall reasons for judgment. Those reasons follow. 8Mr Johnstone's report had been commissioned by other solicitors who had represented the defendants in proceedings in the Local Court that arose from the circumstances of the collision. In the present proceedings, Mr Johnstone's report was obtained by the defendants' current legal representatives through the subpoena process. This occurred on or about 15 April 2011. 9At a directions hearing before the Judicial Registrar on 17 April 2011, a final hearing date for these proceedings was allocated for 13 July 2011. At that time the defendants gave no indication to the plaintiff's solicitor or to the Judicial Registrar, that the report of Mr Johnstone was to be relied upon. When Mr Johnstone's report was subsequently emailed to the plaintiff's solicitor, he correctly took the view that the defendants required leave to rely upon that report. 10As a consequence, and in reliance on that view, the plaintiff's side made no attempts to obtain evidence to address the report of Mr Johnstone by seeking to obtain evidence from an expert with similar qualifications. The plaintiff's solicitor advised the solicitor for the defendants of that position. 11In my view, in those circumstances, absent leave being obtained by the defendants, the plaintiff was not required to seek an opinion on the content of Mr Johnstone's report and incur the cost of doing so where the defendants did not have leave to rely upon that report. When the matter was mentioned before the List Judge on 6 June 2011 in order to vary the hearing date to 12 September 2011, the defendants did not take steps to definitively resolve the issue of the status of Mr Johnstone's report. 12In balancing the relevant interests of the parties, as well as the public interest in the orderly administration and disposal of the business of the court, at the hearing I considered that it would be unjust and prejudicial to the plaintiff to have the proceedings unreasonably delayed as a result of an inevitable vacation of the hearing date for the purpose of obtaining a report from an expert with similar qualifications to Mr Johnstone, where the defendants were in breach of case management orders aimed at the efficient disposal of the proceedings: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27. 13Also, I took the view that as the matter at issue was the argued speed of the plaintiff's motorcycle at the time of the accident, this stood to be determined as a matter of fact, which did not require expert evidence, and it was open to the parties to call whatever factual evidence they considered to be relevant to that issue, including measurements taken from the roadway in question.

Facts 14In the paragraphs that follow, unless otherwise stated, my findings of fact are as follows.

Plaintiff's personal background and work history 15The plaintiff was born in 1979. He was aged 28 years when injured in 2007. He was aged 32 years at the hearing. He is married. At the time of the hearing he and his wife had two dependent children and another child was expected shortly. Although the plaintiff had obtained the School Certificate, his educational achievements were modest. He was not academically inclined. He rated himself as being poor at tasks involving writing and spelling. He had no aptitude or experience with clerical work. 16After leaving school, and before the injury the subject of these proceedings, the plaintiff worked in a variety of manual occupations that required hard physical work. He worked as a bricklayer's labourer, he worked in the construction of metal sheds and garages, he drove earthmoving dump trucks, he worked as a yardman, and he drove forklift trucks. At the time of his accident, he was involved in heavy lifting tasks involving freight handling whilst in the employ of Start Track Express. All of these occupations involved the plaintiff being required to carry out heavy work. His freight handling work required him to lift weights of the order of 35kgs if not more, onto conveyors. 17The plaintiff was an industrious person who also had in the past simultaneously pursued multiple jobs in order to derive additional income to provide for his family. In addition to the full time position in the freight-handling job, he had undertaken casual work for a paintball gaming company called Adventure Quest Paintball. Before the accident, he did this work for 3 to 4 days a month on weekends. Apart from refereeing at paintball shooting games and dodging paintball shots, that work also involved a lot of lifting, pushing heavy wheelbarrows and a lot of walking on uneven ground, including in bushland settings. 18At the time of the accident, the plaintiff had made plans to stay in his employment on the afternoon shift with Star Track Express between the weekday hours of 3.30pm and 11.30pm, to reduce his level of his weekend involvement in the paintball refereeing work, and to undertake additional weekday morning casual work for 26 hours per week at the rate of $25 per hour for JWS Plastics through an agency called Action Workforce. This was similar work to that which he had previously carried out for that company. In fact the plaintiff was due to commence in that additional employment with JWS on 21 March 2007, which was the day after the subject accident.

Plaintiff's previous health history 19The plaintiff was in good health before the accident in question. He had been injured in a previous motorcycle accident in 2002. This had resulted in a fracture of his left tibia near the left knee. He required some surgery for that injury which involved open reduction and internal fixation. This involved the insertion of a metal plate into the left leg. The plaintiff stated, and I accept, that after the passage of several years, that fracture had healed quite well. In that regard, in 2002 he had returned to heavy work at JWS Plastics where his duties involved driving forklift trucks and heavy lifting. The effects of that earlier injury did not seem to interfere with the plaintiff's pre-accident heavy duties at Star Track Express, which he had commenced in March 2001. Concurrently with that employment, in 2002/2003, the plaintiff had pursued additional employment with JWS Plastics. The plaintiff remained in the employment of Start Track Express at the time of the subject accident.

Events of the collision 20Shortly described, the events of the collision were as follows. At some time shortly before 1.30pm to 2.00pm on Tuesday 20 March 2007, the plaintiff set out from home on his motorcycle to travel to his work at Star Track Express. He travelled in a southerly direction along George Street, Mt Druitt. 21The terrain involved him riding over a number of crests of hills in the roadway along that journey. The plaintiff had ridden his motorcycle over the crest of one such hill and as he was riding downhill on the other side of that crest, he saw the defendants' stationary vehicle, which was to the left of the roadway about 50m ahead of him. In these events that vehicle moved off from a stationary position in a U-turn manoeuvre at the T-intersection of George Street with Miller Street. 22The plaintiff first responded to the situation that then confronted him by decelerating. He then tried to steer a course around the turning vehicle. In doing so, he also applied his brakes, but his wheels locked, and his motorcycle then collided with the right hand side of the turning vehicle. The photograph comprising Exhibit "3" indicates significant impact damage occurred to the front driver's side panel of the defendants' vehicle. 23As the defendants have admitted a relevant breach of duty of care, it is not necessary to refer to the facts in greater detail at this point, but I shall do so in connection with my evaluation of the issue of contributory negligence raised by the defendants. The basis of the contributory negligence claim is that prior to the deceleration of his motorcycle, the plaintiff's motorcycle was being driven at a speed of about 55kph to 60kph in a 50kph zone.

Injuries 24Immediately following the collision, the plaintiff found that he had been thrown from his motorcycle and had landed on his back on the concrete footpath. In those events he experienced a lot of pain to his chest and to his groin. The ambulance report stated that the plaintiff had been found some 15 metres away from the assumed point of impact. Whilst in that position, the plaintiff said he had been approached and found himself to be bothered by the attention of the second defendant, who sought to blame him for the collision. This confrontation continued until some other people arrived and told the second defendant to go away. 25The ambulance report stated that the plaintiff had sustained multiple fractures to the left tibia, fibula and ankle, with abrasions and pain to both hips and the abdomen. 26The hospital records described the plaintiff's injuries as comprising a transverse peri-prosthetic fracture of the left tibia. The hospital records also note the plaintiff suffered a laceration to his spleen which was treated conservatively without surgical intervention. 27The fractured left tibia was in a position just below the site of a previous tibial fracture that had been treated with open reduction and internal fixation with hardware. 28In addition, later opinion showed that the plaintiff had suffered ischaemic damage to the muscle segments of the left calf muscles in association with the fractures in the subject accident. The injury that occurred on 20 March 2007 had aggravated the previous injury the plaintiff had suffered to his lower left leg several years earlier. 29The hospital records also revealed that the plaintiff also suffered a segmented pelvic fracture comprising fracture of the superior pubic ramus, fracture of the inferior pubic ramus, and a fracture of the sacral hilum, with the possibility of involvement of the left acetabulum. The hospital records also described grazes to the plaintiff's left flank and an abrasion to the right buttock and to the back. A later x-ray of the left hip revealed the pelvic fractures extended to the left acetabulum.

Treatment and investigations 30The plaintiff was initially an in-patient at Nepean Hospital for 6 days between 20 and 26 March 2011. In that time he underwent surgical procedures for the removal of the previous hardware nail and screws that had been inserted into his left leg as result of the earlier motorcycle accident. That procedure was then followed by open reduction and internal repair of the fractures to the left tibia sustained in the subject accident. This involved the insertion of an inter-medullary rod. 31The plaintiff experienced what he described as excruciating pain in his chest, and his left hip and leg whilst in the Nepean Hospital. Whilst there, he underwent imaging studies of his cervical spine, his abdomen and pelvis, and a retrograde urethrogram, the latter being required because of the presence of haematuria. Subsequently, the plaintiff was re-admitted to hospital for removal of the surgical hardware because the fracture to his left leg was not progressing as expected. 32Initially, following his treatment, the plaintiff required the use of crutches for 9 months on account of his limited mobility. Thereafter, he was required to use a walking stick for support for a further 2 to 3 months. It was only after he started full weight bearing on his left leg that he started to experience back pain. When that back pain was later investigated by CT scanning it was revealed that there was a mild postero-central and postero-lateral disc protrusion at L4/5. Subsequent MRI scanning revealed internal disc disruption at the levels L4/5 and L5/S1 disc, and an annular tear at the level L5/S1. This has been assessed by an orthopaedic surgeon as being due to the trauma of the accident. The x-rays of the plaintiff's lumbar spine also revealed a number of fractured left transverse lumbar processes. 33In July 2008 the plaintiff underwent some orthopaedic surgery to the tendons of his right foot to address problems that had developed concerning the curling of his toes. This was due to contractures of his tendons. This required a tendon lengthening and related tenotomy procedure. This was as a result of ischaemic damage to some deep posterior segments of the muscles comprising the plaintiff's left calf, secondary to the adjacent tibial fracture. The plaintiff was required to wear a CAM boot for some weeks following the surgery to his tendons. 34The plaintiff described his recovery from the subject motorcycle accident as being incomplete. 35There was evidence that the plaintiff had been involved in a further motor vehicle collision between two trucks whilst he was at work on 21 August 2010. That collision was described by the plaintiff as involving a relatively low speed of about 10kph. The plaintiff said that he was not injured in the accident but was shaken emotionally, and as a result had a few days off work. He stated that he had not injured his back. I accept his evidence in this regard. The medical certificate from Dr Nguyen suggesting there was a back injury was incomplete and not signed, and I am inclined to discount it for that reason.

Medical assessments 36In addition to reports from treating doctors, the parties obtained assessment reports from medico-legal experts. 37On behalf of the plaintiff, reports were tendered from Dr Max Ellis, a consultant orthopaedic surgeon. On behalf of the defendants, reports were tendered from Professor Frederick Ehrlich, a consultant in orthopaedic and rehabilitation medicine, as well as a report from Professor Robert Pryor, a consultant vocational psychologist. 38The principal areas of medico-legal dispute concerned the plaintiff's claim for loss of earning capacity, and the extent if any to which the plaintiff will require future domestic assistance. I will analyse those controversies in the context of the damages issues in which they arise. Essentially, in resolving those matters of dispute, I have accepted the plaintiff's factual based evidence on these matters.

Disabilities 39There was no challenge to the factual matters summarised in the reports of the medical practitioners whose reports were tendered. Since those reports contained detailed and admissible descriptions of the plaintiff's complaints of injury and disability, in addition to the oral evidence, I have drawn upon those reports to arrive at my findings concerning the injuries sustained by the plaintiff, and the ongoing effects upon the plaintiff of those injuries: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 per Heydon JA at [70]; Evidence Act 1995, s 60. 40The plaintiff has significant post-operative scarring to his left knee and left ankle. These are readily apparent in the four photographs that have been tendered: Exhibit "C". 41The plaintiff continues to experience ongoing discomfort under the toes and the ankle of his left foot, as well as stiffness of the left ankle. The plaintiff feels that his lower left leg scars are tight and rough. He avoids displaying his scars by wearing joggers with tall socks. 42The plaintiff is never free of pain in his left knee and ankle. The plaintiff had an area of decreased sensation over the antero-lateral aspect of the mid tibia. He continues to have reduced movements of his left ankle, and he can no longer kneel on his left knee. He is no longer able to squat. His left knee gets sore when he walks on uneven ground. He thinks the knee pains are getting worse over time. Medical opinion is to the effect that the pre-existing left knee problems have been aggravated and made worse by the subject injuries, although at one stage, in a medical report, it was recorded that for a time, the left knee condition had receded to the condition it was in before the 2007 accident. That seems to have been a temporary improvement, as the plaintiff has described his problems as having become worse since then. This is to the point where left knee replacement will be required. 43The plaintiff also experiences pains in his left hip. He feels this is getting worse. He has ongoing back pain, which he feels is becoming worse over time, but he does have some days when he does not experience any back pain. He experienced a flaring up of his back pains recently when he was working morning overtime hours. 44The plaintiff's back problems are aggravated by standing and sitting for prolonged periods. His hip and groin pain are aggravated by standing, sitting, and walking for more than about 10 minutes. 45The plaintiff continues to have left knee weakness, his left hip movements are restricted, as are his left foot movements. His low back pains persist, and are exacerbated by heavy activity. 46The plaintiff's injuries have caused him to become restricted in his ability to perform a wide range of work, domestic and sporting activities. These sporting pursuits include touch football, running and golf, these being activities that previously caused him no difficulty. 47The plaintiff's domestic involvement with housework, home, garden and lawn care now cause him difficulty, whereas beforehand, this was not the case. Medical opinion is that the plaintiff's lifestyle has become degraded. He faces separate future surgery to his left hip and left knee in addition to what I accept will be a need for intermittent medical supervision for his residual problems. 48The plaintiff has become quite angry with himself, and at everyone around him. He has been too proud, and in my assessment, too embarrassed, to seek out treatment from a " head doctor " as he described it, saying that this was not in his nature. The industrial psychologist who assessed the plaintiff at the request of the defendants, did not seem to address that issue in his report. 49The consequences of the accident for the plaintiff were explained in practical terms by Mrs Foreshew. She stated that whereas her husband was previously an outgoing, happy fun-loving and energetic person, he is now affected with pain, he has become cranky and impatient with their children, he complains of pain, he lays down a lot, he is less active and he has gained a lot of weight as a result of his inactivity. He has also become less helpful around the house concerning domestic activities. These matters have led to marital tensions.

Issue 1 - Alleged contributory negligence 50The defendants admitted a relevant breach of duty of care, and it was conceded that such breach was a relevant cause of the collision. I infer from the plaintiff's account of the events of the collision, which I have accepted, that the basis of the admission of breach of duty of care by the defendants was that without warning, the second defendant undertook the inherently dangerous task of attempting to make a U-turn at a T-intersection. This was in an area near unbroken road lane markings, and was across the plaintiff's path of travel about 50m past the crest of a hill whilst the plaintiff was approaching. 51The photographs comprising Exhibit "2" indicate that the plaintiff would have had a clear view of the accident scene as he came over the crest of the hill and approached the point where the collision occurred. The photographs show that at Miller Street, where the defendants' vehicle was driven into a right turn, Miller Street formed a T-intersection with George Street, and there was an interruption to the double white lane marking lines on the roadway of George Street at that point. 52The same photographic exhibits also show that on his approach to the point where the collision occurred, the plaintiff would have seen the defendants' vehicle stationary in what I infer from the road markings to be either a bicycle lane or a vehicle parking lane immediately before the vehicle moved off and turned into his path of travel. 53In those circumstances, at the scene that prevailed at the time of the accident, absent any evidence of a right turn indicator flashing on the driver's side rear of the defendants' stationary vehicle, a motorcyclist approaching the defendants' vehicle from behind, as the plaintiff had done, would have been entitled to assume that the stationary vehicle would continue to remain stationary until any approaching southbound vehicles, such as his own, had passed. 54However, a proviso must be added to that assumption, namely, that a prudent motorcycle rider must remain on the lookout for sudden changes in traffic conditions, and therefore ensure he or she is travelling at an appropriate speed for the prevailing road conditions. 55The defendants claimed that the collision was also due to contributory negligence on the part of the plaintiff. In essence the defence of contributory negligence was particularised as being respective failures on the part of the plaintiff to take care for his own safety because he had ridden his motorcycle over the crest of a hill at an excessive speed; failure to maintain a safe distance between his own motorcycle and the turning vehicle ahead; and failure to stop, reduce speed, or otherwise manoeuvre or control his vehicle in order to avoid the ensuing collision. 56The plaintiff lived a short distance away from the accident scene. At the time, he was riding south along George Street near the intersection of that street with Miller Street. He was journeying to his workplace. He knew that along the intended journey he had to ride his motorcycle over the crests of several hills. He estimated his speed of travel over the crest of the hill in question at about 55kph or 60kph. The applicable speed limit for traffic in that area was 50kph. 57As he travelled over the crest of the hill in question, the plaintiff first saw the defendants' stationary vehicle from a distance of about 50m ahead of him and to his left at the intersection of George Street with Miller Street. 58The plaintiff said that on seeing the defendants' vehicle ahead of him, he looked down at his speedometer and noted his speed. As the plaintiff's motorcycle drew nearer to the rear of the defendants' stationary vehicle he observed that vehicle to pull out to the right, and in front of him onto the roadway to make a U-turn across the path of his direction of travel. The distance between those two points was not explored in the evidence. 59In these events, the plaintiff tried to swerve to miss the vehicle but he was unsuccessful in that attempt. Instead, the front portion of his motorcycle collided with right, or driver's side mudguard of the defendants' turning vehicle. In that collision the plaintiff was thrown from his motorcycle and landed on his back on an adjacent footpath. 60In recounting his actions in the lead-up to the collision, the plaintiff said he did not immediately apply his brakes when he saw that vehicle. However, his initial reaction was to slow down to a speed of 50kph. He initially did so by means of deceleration rather than by braking. This may have been for the purpose of allowing the defendants' vehicle to complete the turn, although this was not explored in detail in his evidence. 61In his approach to the point where the collision occurred, the plaintiff did not see any right turn indicator on the rear of the defendants' vehicle. There was no evidence called by the defendants to suggest that there was such an indicator operating at the time. 62The plaintiff stated that at the time of his first sighting of the defendants' vehicle, if he had applied his brakes, he would not have been able to stop his motorcycle in order to avoid a collision. The plaintiff explained that the events " all happened so fast ". 63The plaintiff stated that in those events, he crossed over to the incorrect side of the roadway in order to try and avoid a collision. He also stated that when he was a short distance away from the defendants' vehicle he had also applied his brakes. This had caused his wheels to lock, and shortly afterwards, he collided with the driver's side of the defendants' turning vehicle. He stated that these events all occurred in what seemed to him to be one motion. 64The plaintiff sought to resist a finding of contributory negligence, arguing that the events relied upon by the defendants to sustain such a finding, occurred in the agony of the moment. 65For the reasons that follow, I consider that the plaintiff's account of the events, as summarised above, and which I accept in its entirety, nevertheless requires that there be a finding of contributory negligence on his part. 66First, the plaintiff acknowledged he was riding his motorcycle at a speed above the applicable speed limit. This necessarily meant that for so long as he did so, he was going to be impeded in his ability to appropriately react to any situation of danger that might have, and in fact, emerged ahead of him. The plaintiff candidly conceded in his evidence in chief that he had been travelling at a speed in excess of the applicable speed limit as he negotiated the crest of the hill. I am therefore satisfied that the allegation that he was travelling at an excessive speed has been made out, and that this amounted to contributory negligence on his part. 67Secondly, in approaching and travelling over the crest of a hill at an excessive speed, the plaintiff was taking the unnecessary risk that his ability to appropriately recognise and react to a sudden situation of danger would be significantly reduced. This was especially so where the distance between the crest of the hill over which the plaintiff had travelled and the nearest intersection between George Street and Miller Street was only about 50 metres away. If the plaintiff had been travelling at the applicable speed limit of 50kph, which is the equivalent of 13.88m per second, he would have had about 3.6 seconds in which he could have maintained a view of the defendants' vehicle and taken evasive action. At the speed of 60kph, which I find to have been the most probable speed of the plaintiff's travel, the plaintiff would only have had some 2.96 seconds in which to take in the scene and to react appropriately. However, since he was travelling at an excessive speed, he necessarily limited his opportunity to take evasive action. 68On the matter of the plaintiff's speed, it was noted in the ambulance report that the plaintiff's motorcycle was travelling at approximately 70kph prior to the collision. This was not a matter that was taken up with the plaintiff. There was no indication as to the source of that comment. I do not consider the context to require an inference that it was an admission by the plaintiff. I consider that I should give that notation no weight when considering the plaintiff's own evidence of his speed. The position might have been different, if for example, the notation had been made by a police officer whose duty was to investigate the circumstances of the accident to try and ascertain the speed of the plaintiff's motorcycle. 69Thirdly, by travelling at an excessive speed for the circumstances, those circumstances being the applicable speed limit of 50kph and the fact that he had to ride over the crest of a hill, which necessarily meant his visibility of the road conditions ahead would for part of that journey be limited, the plaintiff thereby necessarily limited his options for appropriately reacting to a situation of potential danger ahead. This made it more likely that he would have to adopt a less considered and more urgent reactive response to any emergent situation of danger. This undoubtedly increased the likelihood the plaintiff would be placed in a situation of danger that exposed him to potential injury. 70In my view, this is what occurred in this instance, where in one continuous motion, the plaintiff swerved onto the incorrect side of the roadway to try and avoid a collision, and then applied his brakes so that he locked the wheels on his motorcycle. This meant he was not in complete control of the motorcycle in the events leading to the collision. 71Accordingly, there must be a finding of contributory negligence on the part of the plaintiff. This leaves the remaining question of whether that contributory negligence was a relevant cause of the collision. This question requires careful evaluation as the plaintiff maintained that he would not have been able to avoid the collision even if he had been travelling at the applicable speed limit of 50kph as he negotiated the crest of the hill. 72On one view, that could be seen as a convenient hindsight statement. On the other hand, the plaintiff was the only witness who gave evidence on the liability issues, and his evidence was not inherently or plainly wrong on its face, and it was not contradicted. It therefore requires careful analysis whilst at the same time recognising that questions of negligence or contributory negligence are not generally decided on finely tuned assumed calculations made in retrospect, but on evidence. 73Here, the only evidence on the contributory issue was that of the plaintiff. At the first level of analysis it is therefore appropriate to test that evidence by the only means that are available, namely mathematically. 74In order to identify whether there would have been a relevant difference in the causation outcomes if the plaintiff had been travelling at the speed limit, it is relevant to look at the significance of the speeds referred to in the evidence in terms of time and distance travelled. 75A speed of 60 kph is the equivalent of 16.88m per second. A speed of 50kph is the equivalent of 13.88m per second, a difference of 3m per second. 76The relevant distance the plaintiff had to take in the scene, where the accident would occur once he was at the crest of the hill, was about 50m. There was no evidence as to at what point along the plaintiff's 50m journey the vehicle turned from its stationary position and moved across his path of travel, thereby requiring him to take evasive action. 77A vehicle travelling at 16.88m per second or 60kph would take some 2.96 seconds to travel a distance of 50m. Similarly, a vehicle travelling at 13.88m per second or 50kph would take some 3.6 seconds to travel a distance of 50m. The difference is 0.64 seconds. 78At 60kph or 16.88m per second, a vehicle would travel 10.80 metres in 0.64 seconds. At 50kph or 13.88m per second, a vehicle would travel 8.88 metres in 0.64 seconds. The difference is 1.92 metres. 79That first level of analysis reveals that on the evidence in this case, very fine tolerances are involved in order to sustain a causation finding on the contributory negligence issue as argued by the defendant. 80However, that micro view must be balanced as against a more macro or overall view of the evidence, or the absence of evidence, on critical matters. 81These critical matters include an allowance for reaction time, which must be allowed for on a commonsense basis as it can vary according to circumstances, and factors such as the position or approximate location along that 50 metre journey when the defendants' vehicle commenced to turn across the path of the plaintiff, the distance over which the plaintiff had time to react and take evasive action, whether the defendants' vehicle moved at a constant or an accelerating speed whilst it was driven through the U-turn manoeuvre, or whether it was driven with some hesitation in its movements. Then there is the question of the turning trajectory of the vehicle on the road surface, and what influence that may have had on the speed of travel of the vehicle. These are but some of the matters on which the evidence is silent. 82In the absence of any basic factual evidence concerning the defendants' vehicle as to it's speed, rate of acceleration and distance travelled, it is difficult to arrive at any meaningful estimation of whether an extra 0.64 second of time available to the plaintiff would have made a material difference to the outcome. 83On the evidence, the best that could be said of the defendants' vehicle is that it was either a slow moving vehicle which presented an obstacle to the plaintiff's progress, or it was a rapidly accelerating vehicle that suddenly presented as an obstacle to the plaintiff. If the plaintiff's vehicle had been travelling at the speed limit, the chances of him avoiding the collision would have been greater than was the more limited opportunity he had because of the higher speed at which he was travelling. However, necessarily, on the evidence, the issue cannot be determined by speculative means. 84Overarching all of these matters is the fact that the estimated distance of 50 metres from the crest of the hill to the accident scene was only an approximation and was not put forward as an accurate measurement. Neither party introduced factual evidence on that simple issue, a matter on which in this instance, the defendants bore the onus of proof. 85When this overall view of the factual circumstances is considered, along with the plaintiff's own evidence that he could not have avoided the collision even if he had been travelling at the speed limit of 50kph, I am not persuaded that the defendants have either displaced the plaintiff's account of events as improbable or wrong, or discharged the onus of proving that the plaintiff's contributory negligence was a relevant cause of his injuries: s 5D and s 5E of the Civil Liability Act 2002 [" CL Act "] . 86I therefore find that although there was contributory negligence on the part of the plaintiff, the defendants have failed to establish that such contributory negligence was a relevant cause of the plaintiff's injuries. 87In conformity with convention, notwithstanding the preceding finding, to allow for the possibility that it may be found on appeal that I may have erred in arriving at my conclusion on causation, I will in brief terms record my view of the alternative finding I would have arrived at if causation had been established. 88In my analysis I consider that the defendants would have had to bear the far greater share of the apportionment of the respective culpabilities. This is because making a U-turn without warning near the crest of a hill was an inherently dangerous manoeuvre fraught with the danger of collision with vehicles approaching over the crest of the hill with very limited distance and opportunity for evasive action. The contribution of excessive speed of the order of 10kph on the plaintiff's part would have had very little influence in lessening the opportunity for taking evasive action. 89The defendants submitted the appropriate discount for the plaintiff's contributory negligence should be 20 per cent. I considered that to be outside the appropriate range. If causation had been established, in weighing the respective responsibilities, I consider the appropriate just and equitable range that would have to represent the plaintiff's culpability would have been of the order of 10 per cent to 15 per cent, and most probably in the middle of that range, if causation had been established.

Issue 2 - Assessment of damages 90Before assessing the heads of damage claimed by the plaintiff it is necessary to identify the plaintiff's probable remaining life span.

Life span 91An assessment of some components of the plaintiff's entitlement to future damages first requires identification of the years that probably remain for the plaintiff. Having regard to the current prospective life tables, at age 32, this being the plaintiff's age at trial and, in the absence of any medical or other evidence suggesting the plaintiff may have a decreased life span, I assess the plaintiff's probable remaining life span to be in the rounded down statistics based figure of 53 years.

Non-economic loss 92The nature and extent of the plaintiff's injuries, and the resultant disabilities that flowed from those injuries clearly calls for a significant award of damages for non-economic loss. This is because the plaintiff has suffered, and will continue to suffer, a great deal of pain, suffering and loss of amenity of life over his very considerable probable remaining life span. He also faces significant surgical procedures for the replacement of his left knee and left hip. I have already reviewed and summarised the plaintiff's ongoing disabilities at paragraphs [39] to [49] of these reasons. My assessment of damages for non-economic loss has taken those matters into account. 93In addition to the physical problems that continue to affect the plaintiff's left hip, left knee, left ankle, left lower leg, his back, the plaintiff must also endure the emotional sequelae of his injuries and disabilities. My impression was that despite the plaintiff's stoic and understated description of such matters, he has suffered considerably from the effects of the accident. The plaintiff has work, domestic, leisure and sporting restrictions, each of which significantly and adversely affect the ability of the plaintiff to otherwise enjoy the amenity of his life. 94On behalf of the plaintiff it was submitted that damages for non-economic loss should be assessed in the amount of $350,000. In contrast, on behalf of the defendant, it was submitted that the appropriate sum to be awarded for non-economic loss should be assessed in the amount of $150,000. In my view, neither of those submissions should be accepted. 95Having regard to the injuries and disabilities I have identified above, in achieving a fair balance, I consider that the appropriate sum to compensate the plaintiff for his past and future pain and suffering and loss of the amenity of his life, which is both fair to the plaintiff and not unfair to the defendant, is the sum of $275,000. 96I therefore assess the plaintiff's damages for non-economic loss in the sum of $275,000 .

Past loss of earnings 97On behalf of the plaintiff, it was submitted that damages for the plaintiff's claim for past loss earnings should be assessed in the amount of either $168,469 (submitted Method 1 ) or $140,069 (submitted Method 2 ). 98The basis of the plaintiff's submission underpinning the Method 1 calculation comprised two components. The first component is the agreed component of make up pay paid by the workers' compensation insurer in the amount of $28,069. The second component of the Method 1 calculation is an amount of $600 per week net representing the plaintiff's lost income in respect of his second and third jobs with the paintball activities and lost overtime and shift allowances in the amount of $600 per week net for 4.5 years, totalling $140,400. The combined total of these two amounts for Method 1 is $168,469. 99The basis of the plaintiff's submission underpinning the Method 2 calculation also comprised two components. The first component is as in Method 1 , namely $28,069. The second component of the Method 2 calculation comprises three sub-components, namely loss of income from the proposed second job with Action Workforce with JWS Plastics at the rate of $400 per week net for 4.5 years, namely $93,600; loss of shift allowances with Star Trek Express, at the rate of $100 per week net for 2 years, namely $10,400; and the loss of overtime with Star Trek Express at $200 per week for 40 weeks, tallying $140,069 for Method 2 . 100In contrast, on behalf of the defendants, it was submitted that the appropriate sum to be awarded to the plaintiff for past loss of earnings should be in the amount of $55,792. 101The difference between the respective positions of the parties was essentially accounted for by differing assumptions as to which employment the plaintiff was likely to be pursuing if the accident had not occurred. 102In my assessment of the plaintiff, I considered his evidence to the effect that he intended to work in multiple jobs and take the opportunities available to him to work overtime, was truthful. He recognised his educational limitations. He knew his work skills and experience were in the areas involving heavy manual work. He was young, fit and healthy, and able to carry out that work. 103More importantly, he had a very strong and creditable motivation to take on multiple jobs and overtime in order to maximise his earnings whilst he was able to do so in order to improve the economic and living circumstances of his family. I considered that evidence to be believable, and to be based on the reality that he had a young and growing family to support, and he had the responsibility of meeting significant mortgage payments. 104In those circumstances, I accept his evidence that he would have continued his afternoon shift with Star Track Express, and taken on the extra work with JWS Plastics and to a lesser extent, continued his weekend paintball job for some time until that work tapered off in favour of the other two jobs. I accept his evidence that he would have worked long hours to achieve this, at least for several years, and certainly up to the time of the trial. He had the economic imperative to do so, he had the ability to market his labour in that way, the work was available to him, he was prepared to extend his efforts to take on the additional work, and I find that it was highly likely that he would have worked those long hours for the economic reward that such efforts would have provided to him and to his family. 105Before assessing damages for past loss of earnings it is appropriate to review the factual circumstances. There is no suggestion that the plaintiff has failed to take reasonable steps to mitigate his loss of earnings. 106The plaintiff was away from work in his position with Star Track Express for some 9 or 10 months. On his return to work at that position, which followed the assistance of a rehabilitation provider, and a lot of pool exercises to build up his muscles again, the plaintiff started back at his employment with Star Track on light duties for 4 hours per day. Over time, he built his working hours up to full time hours after a few months. His normal working hours for Star Track were between 40 and 45 hours per week. The standard hours were 40 hours per week plus an additional 5 hours of overtime per week. 107In December 2009 the plaintiff changed his employment with Star Track from the afternoon shift to the day shift because he was not coping well with the afternoon shift. This was because there was a lot more lifting and a lot harder work in the afternoon shift. The day shift position was easier for him, but in making that change he lost the benefit of a shift penalty allowance of $100 net per week. At that time he also had to forego his weekly 5 hours of overtime on the afternoon shift, which has resulted in a net loss of $200 per week, or a total loss of $300 per week net. 108Whilst those post accident changes in work arrangements have enabled the plaintiff to more actively participate in family matters, including sharing the responsibility of picking up his children from school, I do not accept the defendants' submission that these advantages were the motivating factor for the plaintiff changing his working shift with Star Track Express from the afternoon/evening shift to the day shift. I consider that the family advantages that followed were incidental to that change and not determinative. 109I also accept the evidence of the plaintiff that he has not been able continue with the paintball employment since 2009 because of the duties in that employment, which included heavy lifting and walking through the bush on uneven ground, and which he could no longer do. He found that when he was doing that work after the accident, he felt very sore at the end of the day, which seems to me to be a good reason for not pursuing that work. 110The plaintiff was rostered to commence the additional work duties at JWS Plastics on 21 March 2007. I accept his evidence that he would have continued in that work had he not been injured and that he has not been physically able to take up that work since the accident. 111In my view, the plaintiff would have continued in his onerous work regime in order to benefit his family and as a matter of economic necessity. This view is supported by the evidence of Mrs Foreshew. She explained that after her husband's changed work arrangements, they fell behind in their mortgage payments and they had to seek assistance from her parents. 112In my view, the approach embodied in the plaintiff's submitted Method 1 is to be generally preferred to Method 2 and the defendants' submissions. 113I use the term generally because the assumption that the plaintiff would have continued with the demanding work regime described in his evidence must be seen as being subject to a range of vicissitudes and factors arising from the inter-relationship of the three jobs, the continued and predictable timing of available work hours, the availability of overtime, the stability of family arrangements that freed the plaintiff's time to enable him to pursue such a demanding regime of work at the expense of family and leisure pursuits, and continuing good health. These are all the usual imponderables that aggregate under the umbrella term of vicissitudes and they must be accounted for when it comes to assessing the continuity of events to which some uncertainty must attach. 114In my view, taking those factors into account, a discount of 15 per cent should be applied to the plaintiff's submitted calculations. 115Accordingly, I accept on behalf of the plaintiff's submission, subject to an adjustment for vicissitudes, that Method 1 is the generally preferred and appropriate method by which the plaintiff's claim for past loss of earnings should be assessed. 116After applying a 15 per cent discount to the Method 1 calculation, this yields an amount of $143,191, which I round down to $140,000 because precise calculations are not realistically possible in this instance. 117I therefore assess the plaintiff's damages for past loss of earnings in the submitted sum of $140,000 .

Future loss of earning capacity 118As was the case with the claim for past loss of earnings, the parties also adopted disparate positions with regard to the claim for future loss of earning capacity. 119On behalf of the plaintiff it was submitted that the plaintiff's claim for loss of earning capacity should be assessed on the basis of a loss of $1000 per week net projected at 5 per cent over 35 years until an assumed retirement age of 67 years, which after a 15 per cent discount for vicissitudes is applied, yielded an amount of $744,260. 120In contrast, on behalf of the defendant, it was submitted that the plaintiff's claim for future loss of earning capacity over the entire period of his remaining working life should be assessed in the buffer sum of $100,000 including any future superannuation losses. 121The defendants relied upon a report from Professor Robert Pryor, a vocational psychologist, to seek to demonstrate that the plaintiff had a residual earning capacity in a variety of occupations. I consider that Professor Pryor's opinions should be discounted for a number of reasons. 122First, I considered his opinions were based on assumptions that were not put to the plaintiff in cross-examination. Professor Pryor suggested that apart from the position of Forklift Driver, a position in which the plaintiff was currently experiencing difficulty in, other suggested suitable occupations for the plaintiff included Stock Clerk, Warehouse Administrator, Production Clerk, Sales Representative, Train Controller, Backhoe Operator, Locksmith and Building Associate. Having regard to the job descriptions of those positions, without explanation by oral evidence, and without intending any disrespect to the plaintiff, it is difficult to conceive how someone with spelling skills equivalent to the 5 th percentile, and who has a marked differential pattern between verbal and non-verbal reasoning, as was ascertained on Professor Pryor's testing, would be likely to be seriously considered for a broad range of such positions. In my view, Professor Pryor's opinions as to those job categories, was theoretical and unrealistic. 123Secondly, there is an apparent flaw in Professor Pryor's reasoning insofar as the non-specific position of Sales Representative is concerned. At page 2 of his report, Professor Pryor recounted a history that whilst in the paintball employment, the plaintiff had been " given training in sales and customer relations". Without evidence of the plaintiff having had a proven track record for work as a Sales Representative, and on the basis of an unproven assumption recorded at page 4 of the report, where Professor Pryor stated that the plaintiff " had also worked as a sales representative ", he proffered the view that the plaintiff could work in sales. There is an obvious distinction between receiving training is sales, and being able to effectively work in such a capacity. In my view the opinion referred to is flawed, as there was no evidence the plaintiff had worked in that capacity. Furthermore, when proper regard is had to the plaintiff's reading, writing and spelling skills, I consider a sales position was most unlikely, especially in the absence of evidence that the plaintiff could be effectively trained to overcome those educational and skill set shortcomings in the requirements for that position. 124Thirdly, Professor Pryor seems to have relied upon an observation that was not put to the plaintiff, either by Professor Pryor, or by counsel for the defendant, for comment. At page 6 of the report, it is stated that the plaintiff's sitting tolerance was observed to be in excess of 50 minutes. In my view, in the circumstances where that matter was not exposed to the plaintiff for comment, it would be procedurally unfair to base work fitness findings on such an observation without additional evidence demonstrating that procedural fairness had been afforded to the plaintiff in connection with that observation, and its occupational significance, if correct. Furthermore, it would seem that Professor Pryor has no medical qualifications that would permit work capacity conclusions to be based on such an observation. 125Fourthly, I consider Professor Pryor's work suggestions to be of diminished and only theoretical relevance once full recognition is given to the significance of his statement at page 8 of his report to the effect that " Mr Foreshew's general ability was in the average range however this masked a major difference in his verbal and non-verbal reasoning scores ". Furthermore, Professor Pryor's alternative work suggestions appear to be predicated on a willingness and aptitude on the part of the plaintiff to successfully undergo training, a matter that was not exposed to him for specific and appropriate comment. 126I therefore do not accept the mitigation of loss of earning capacity formulations put forward by Professor Pryor. 127This component of the plaintiff's claim is in the context of the plaintiff's own evidence of concerns he held to the effect that he might not be able to continue in his present employment after a further 2 years. That evidence was not challenged. The plaintiff's evidence in that regard must be viewed in the context of the circumstances where he has little aptitude and experience for more sedentary and clerical forms of employment. 128The plaintiff's evidence was that he was intending to end his employment with the paintball activities in order to work the morning shift with JWS Plastics for 3 days per week or whatever days were available, and the afternoon shift full time with Start Track Express for as long as possible, or " forever " as he put it, which I took to mean for the remainder of his otherwise normal working life. 129Again, the plaintiff's economic imperative was his worry or concern over his mortgage payments and his desire to provide his family with a good life. He was prepared to take on that onerous work regime for those benefits even if that meant sacrificing or limiting some family time together, and at the expense of his opportunities for leisure and relaxation. I considered the plaintiff's evidence on those matters to be given sincerely and truthfully, and I accept that evidence. 130Before undertaking the task of assessment it is relevant to consider the medical opinions insofar as they have relevance to the claim for loss of earning capacity. 131On the one hand, on 21 January 2010, Professor Ehrlich has stated that the plaintiff had made a good recovery from his injury and noted that the plaintiff had resumed his normal duties on a full time basis, and that no complications of any kind should be expected to occur. In noting the plaintiff had suffered injuries consisting of pelvic fractures, fractured left tibia and fibula and back strain, he anticipated no further problems with the plaintiff's future employment. 132In his second report which was dated 1 December 2010, Professor Ehrlich stated that he could add little to what he had previously said about the plaintiff, and noted the plaintiff's various complaints of discomfort were consistent with the nature of the injuries he had sustained. Professor Ehrlich further noted that " fortunately, [the plaintiff's] job involves almost entirely forklift driving, a task which he can accomplish without too much difficulty [.]" 133On the other hand, on 2 July 2008 Dr Ellis expressed the view that the plaintiff was permanently unfit for physically demanding work requiring repeated bending and heavy lifting, noting that continued attempts to perform such work would result in increasing pain, and as a result, the plaintiff could anticipate increasing disability and impairment. He suggested rehabilitation assistance should be aimed at finding the plaintiff lighter work. 134In his 23 September 2009 report, Dr Ellis stated that although the plaintiff maintained his employment as a forklift driver, his working life expectancy has been significantly reduced as a result of the injury in question. He reiterated his earlier opinion to the effect outlined in the preceding paragraph. 135In a subsequent report dated 23 November 2010, which followed intervening MRI investigations of the plaintiff's lumbar spine, and which also followed a third examination of the plaintiff's progress over a period of a little over 2 years, Dr Ellis noted that the plaintiff's work involved him in handling items of freight weighing up to 20kgs, and work limited to short periods in heavy work because of limitations concerning impairments to the plaintiff's back and left leg. In that last report, Dr Ellis reiterated his opinion as cited in the preceding paragraphs. 136The 25 May 2010 report of Dr Darryl Fraser, consultant orthopaedic surgeon, noted that the plaintiff had a permanent disability to his left hip, low back and left ankle. He also noted that the plaintiff had returned to his pre-accident employment but in modified work not involving lifting and bending. 137In assessing these differing views, it seems that the essential difference lies in the matters of history that have been variously assumed by Professor Ehrlich and Dr Ellis. 138In my view the controversy within the medical evidence should be resolved by a preferred acceptance of the views of Dr Ellis compared to the views expressed by Professor Ehrlich. My reasons for this conclusion are as follows. 139First, the history of the plaintiff's circumstances and problems as recorded by Dr Ellis is more detailed than that obtained by Professor Ehrlich, and it more accurately reflects the matters the plaintiff stated in his evidence, and the results of medical investigations. For example, it was incorrect to assume that the plaintiff had at the time of his examination by Professor Ehrlich, returned to his pre-accident employment. He had returned to a job that was more than just modified. 140Secondly, Professor Ehrlich appears not to have considered the plaintiff's changed work shift arrangements and his less onerous duties on the day shift. Furthermore, Professor Ehrlich appears not to have considered the incremental difficulties the plaintiff experienced with his work. as was considered by Dr Ellis, and which has been described by the plaintiff in his unchallenged evidence that he has concerns about whether he will be able to continue in his present work for a further 2 years. 141Thirdly, Professor Ehrlich has not recorded or considered the difficulty the plaintiff described in his evidence as to his need to have his fellow workers assist him with heavier tasks. Whilst it is possible that issue may not have been broached in the consultation with Professor Ehrlich, it is nevertheless an important issue that impacts upon the plaintiff's future employment and employability. 142Fourthly, I prefer the analysis of Dr Ellis, in which the significance of the plaintiff's lumbar disc problems was considered. Whilst Professor Ehrlich has accepted that the plaintiff's complaints are consistent with his injuries, he seems to have left the question of the lumbar disc problems in an ambiguous state in his reports, stating that the scans of the lumbar spine are in normal limits, with some minor disc bulging at one level, but not different from what is found in a substantial portion of the " normal " population. The difficulty with that analysis is that Professor Ehrlich has expressed his opinion in general terms using the comparator of the " normal " population without stratification for age, injury history or any other factors, whereas Dr Ellis has specifically considered the issue of the plaintiff's age and the circumstances of the injury to formulate his view that the MRI findings were consistent with the accident, which he correctly referred to as severe. Dr Ellis has described the findings as being due to an acute lumbar injury, a matter apparently not considered by Professor Ehrlich. 143Fifthly, Professor Ehrlich seems to have considered a less serious range of injuries to those which have been documented in the plaintiff's medical investigations. In that regard Professor Ehrlich incorrectly assumed there was no fracture of the plaintiff's sacrum, when the x-ray report of Dr Chan dated 22 June 2007 showed undisplaced sacral fractures. Professor Ehrlich assumed there was no acetabular fracture when the 20 March 2007 x-ray report of Dr Evans clearly stated there was involvement of the left acetabulum. Professor Ehrlich had assumed that the plaintiff had not suffered any injury to his spleen, whereas the same x-ray report revealed a subtle laceration to the spleen. Professor Ehrlich's report also did not consider that the plaintiff had minimally displaced fractures to the left transverse processes of L3/L4 and the left sacrum. 144In my view, these matters indicate that Professor Ehrlich's opinion has not fully considered the full range of the plaintiff's documented injuries. This may well have been because he had not been provided with the relevant imaging reports. Nevertheless, for these reasons, I discount his opinions and prefer those of Dr Ellis. 145In the absence of oral evidence from these experts, and on the face of the reports, I prefer the more reasoned approach taken by Dr Ellis, and I therefore prefer and accept his opinions to those of Professor Ehrlich on questions of accident related injuries, disability, and the impairments that relate to the plaintiff's future work activities. 146I therefore consider that the plaintiff's damages for impairment in his future earning capacity must proceed upon the basis of the plaintiff's own real concerns, and the medical concerns expressed by Dr Ellis. 147That assessment must take into account the fact that the impairments in question will apply to the plaintiff over the entire remainder of his otherwise normal working life, and already have an impact because he is not working to the level he had anticipated he would be working at this time if the accident had not occurred, namely the additional hours of overtime he has foregone by changing to the day shift, the additional income from JWS Plastics, and any income he may have continued to derive from the paintball activities. 148The assessment of this component of the claim largely follows the I approach taken with regard to the claim for past loss of earnings, but with adjustments to allow for the different considerations that would be most likely to apply to the plaintiff's future circumstances. 149The first such consideration is that I do not see a proper basis in this case for projecting the plaintiff's claim for damages beyond the normal retirement age of 65 years, which means that the projection period must be confined to the ensuing 33 years, and not the longer period that was submitted on behalf of the plaintiff. 150The second such consideration is the identification of a basal amount or amounts for projection of the future loss, or put differently, the identification of the appropriate sum to compensate the plaintiff for future loss of earning capacity. 151It seems to me there are 2 basic approaches open on the evidence with regard to the assessment of damages for future loss of earning capacity. 152One such approach would be to select an overall global buffer sum as argued by the defendant, but not necessarily in the amount suggested by the defendant. A justification for that approach would be that the plaintiff is presently working and although he has concerns about continuing to work, the fact remains that he is still working. A difficulty with that approach is the reality-based concerns of the plaintiff as to his ability to carry on working after about 2 further years, which I have accepted. Another difficulty is the fact of the current losses that I consider the plaintiff is incurring from his inability since 21 March 2007 to take up the JWS employment, or its equivalent, or alternatively, his inability to carry out work of the kind involved in the paintball activities. 153Another possible approach would be to assess the future losses in defined stages, according to the plaintiff's most likely circumstances that would have prevailed but for the injury. 154Of these two approaches, I consider the latter to be the most appropriate because it permits a reasoned analysis, but with a buffer included for the reasons I shall explain. I will undertake that task in the paragraphs that follow. 155If he had not been injured in the accident in question, the plaintiff would have otherwise derived extra earnings by pursuing an additional 5 hours per week of overtime earnings as well as penalties and shift allowances whilst working the night shift at Star Track Express. In addition there are the losses from the further earnings I find he would have derived if he had commenced work with JWS Plastics on 21 March 2007, as had been arranged. By now, in order to pursue those jobs, the plaintiff would have given up his paintball work. 156I accept the plaintiff's evidence that the overtime, penalties and shift allowances in the employ of Star Track Express should be broadly valued at $300 per week net. 157I also accept that the plaintiff's employment at JWS Plastics would have been at the rate of $25 per hour gross, and the work on offer to him was for at least 26 hours per week, which is the equivalent of $650 per week gross without other benefits such as holidays and sick leave. Allowing for holidays and 2 weeks of sick leave per year, a weekly sum of $650 per week over 46 weeks per year is the equivalent of $29,900 per annum for a 52-week year, which is the basis upon which a projection must proceed. I estimate the promulgated 37 per cent rate for tax would apply to such earnings and the 1.5 per cent Medicare levy would also apply. This would reduce the earnings of $29,900 gross to an amount of the order of $18,388 per annum net, which is the equivalent of the rounded down figure of $350 per week net for a 52-week year. 158I consider the total of these amounts respectively valued at $300 per week net and $350 per week net, namely $650 per week net, should be projected for a period from the present time, subject to identifying a limiter on the years for projection. 159In my view, it would be unrealistic to simply identify, as was argued on behalf of the plaintiff, that the value those present losses, which the plaintiff estimated at $1000 per week, and project them over the plaintiff's remaining probable working life, but for his injury. 160The reason I consider that approach to be unrealistic is that I consider it would have been unlikely that once the plaintiff had paid off his mortgage and had consolidated his financial position, he would have continued to maintain an onerous work regime involving 2 - 3 jobs which may or may not have included weekend work, and which would have included weekday overtime of the order of 5 hours per week. I consider that in the process of ageing, against a background of increasing financial security, as a wage earner engaged in relatively heavy work, it would be unlikely that the plaintiff would continue such an onerous albeit financially rewarding regime, especially as to continue in that way, would have been at the expense of the amenity of his family life as his children grew older. 161Balanced against those considerations, it is clear that the plaintiff was ambitious for his family to have financial security, and it may well have been the case that additional earnings could have been used for family holidays and to pay for the education of his children. There is no need to speculate further on whether or not this may have occurred. It is simply sufficient to identify these possibilities as matters that arise for consideration as potential balancing vicissitudes that are to be weighed in favour of the plaintiff and against the defendant, in the same way as the other matters I have identified are to be weighed as vicissitudes against the plaintiff. 162Having regard to the plaintiff's strong motivation to earn additional monies to pay his mortgage and benefit his family, given his present age of 32 years, I consider it would be reasonable and fair to both parties that I should limit the projection of this component of the loss for a further 13 years until the plaintiff would be aged 45 years. 163Whilst that period may appear somewhat arbitrary, it would appear to coincide with what might be considered middle life. At that time, his children, who were born in 2005, 2007 and I assume by now, 2011, would be respectively aged 19 years, 17 years and about 14 years. At that stage they would possibly be less dependent upon his earnings and be positioned more towards independence. At that stage the plaintiff's mortgage would be more likely to have been significantly reduced if not paid off entirely, thereby freeing him of the obligation of taking on the more burdensome and additional working hours, which was the path he was pursuing at the time he was injured. 164The projection of $650 per week net at 5 per cent over 13 years (x 502.3) yields an amount of $326,495 without discount for vicissitudes. Although there is an argument in favour of reducing the conventional 15 per cent discount for vicissitudes to something less than that because the projection is not for the entire working life, I consider that the conventional discount of 15 per cent should nevertheless apply. As a result the projected sum is reduced to $277,520. 165In my view, that sum is the appropriate measure of the plaintiff's loss of overtime, penalty, shift allowances and additional casual employment. I consider that after what I have described as mid-life, it would be unlikely that the plaintiff would find such a burdensome regime congenial to family life and at that point the monetary benefits from such a regime would probably be outweighed by the lifestyle benefits that would probably flow from the relative financial security that would have been achieved by that time. By age 45, the plaintiff would probably have sought the employment he has now, that is day shift work, without overtime or after hours penalty and shift allowances. 166This then leaves the assessment of the plaintiff's impaired earning capacity in his present employment, which he fears he will no longer be able to pursue after 2 years. 167In the plaintiff's present employment at Star Track Express, the unchallenged evidence is that the plaintiff's fellow workmates on the day shift have been helping him out with the lifting tasks that are required of him in his work. He has now got to the stage where, at the end of his working day, he feels quite sore and has to lay on the lounge. This has led him to feel he will probably not be able to continue in his present employment for more than a further 2 years. I do not consider the plaintiff to have exaggerated or to have overstated his concern. Before the subject accident, he had no plans for early retirement. 168The plaintiff recognises he has a limited array of work skills and he believes, realistically in my view, that he cannot carry out his former heavy employment tasks such as erecting garages, driving dump trucks or activities of that nature. 169In my view, these matters give rise to a very substantial claim for future loss of earning capacity. 170Given the plaintiff's industriousness to date, I doubt that he will remain totally unemployed after he finds it necessary to leave his present job. In that regard, from his description, I accept his concerns as to continuing in his work, as realistic. I consider that as a resourceful man he will eventually find some form of light unskilled or semi-skilled work, although it will probably take him some time to do so. It may well have to be part time work to accommodate his need to rest due to his discomforts. In this regard, with his disabilities, I consider that he will be at a distinct disadvantage in selling his labour on the open labour market and the range of appropriate jobs will therefore be limited to him, and such jobs may not be long lasting or full time, either because of their terms, or because of the effects that such jobs might have on the plaintiff's disabilities. 171I have previously identified my reasons for not accepting the opinions of Professor Pryor on alternative employment categories. I consider the plaintiff's physical disabilities and his limited potential for retraining based upon his limited educational attainments to represent significant hurdles for him obtaining mitigatory earnings. 172Taking those factors into account I consider that the appropriate amount of a buffer to cushion him against impairment of earning capacity for projection over the plaintiff's remaining working life of 33 years is the additional buffer amount of $250,000. This is the rounded down equivalent of the projection of a little over $340 per week net as an average over the plaintiff's remaining 33 years of working life, less a discount of 15 per cent for vicissitudes. 173The combined effect of these two component sums of $277,520 and $250,000 is a total amount of $527,520 174I therefore assess the plaintiff's damages for future loss of earning capacity in the sum of $527,520.

Past loss of superannuation 175Consistent with my finding that in the period between 20 March 2007 and the date of the hearing the plaintiff has lost earning capacity in the sum of $140,000, it is necessary to assess the value of the past loss of employer funded superannuation benefits. The convention is that in the absence of actuarial evidence of that loss, 11 per cent of the net sum awarded for past loss of earning capacity is taken to represent the loss for this head of damage. Accordingly, 11 per cent of $140,000 is the equivalent of $15,400. This sum includes the agreed figure of $2526 for superannuation on make-up pay: T80. I therefore assess the plaintiff's damages for past loss of superannuation in the sum of $15,400 .

Future loss of superannuation 176Consistent with my findings in respect of past net employer funded superannuation losses, it is necessary to assess the value of the loss to the plaintiff of future employer funded superannuation benefits, I apply a similar convention of 11 per cent of the net sum awarded for future loss of earnings to represent the loss for this head of damage. Accordingly, 11 per cent of $527,520 is the equivalent of $58,027 . I therefore assess the plaintiff's damages for future loss of superannuation in the sum of $58,027 .

Past gratuitous care 177The parties have agreed on the amount of damages to be awarded on account of past gratuitous care in the amount of $6160 for 10 hours per week for 22 weeks post-accident. I therefore assess the plaintiff's damages for past gratuitous care in the agreed sum of $6160 .

Future paid domestic assistance 178On behalf of the plaintiff it was submitted that damages should be assessed for future paid domestic assistance at the rate of $160 per week for the assumed submitted life expectancy, in the amount of $158,224. In contrast, the defendants submitted that the appropriate sum for future paid domestic assistance was an amount of $6914. The basis of the defendants' submissions was the reasoning in Miller v Galdarisi [2009] NSWCA 353 at [14] to [25]. 179The evidence of the plaintiff on this issue was that whereas before the accident he attended to household maintenance tasks such as mowing the lawns, gardening, washing the cars, the children's bikes, his motorcycle, vacuuming and mopping of floors, hanging out the washing and cooking the evening meals before going to work. 180The plaintiff stated that after the accident he had for a time obtained domestic assistance from his mother-in-law, but now his wife does everything whilst he rests at the end of his working day. He now rarely hangs out the washing, he cooks on only about 2 days per week instead of cooking daily as he used to do before the accident. He does not do any gardening or washing of the cars because it is too much for him to cope with that activity. He staggers the lawn mowing of the front and back yards on the occasions that he does mow the lawns. He said that if monies were available to pay for the heavier aspects of housework, vacuuming, gardening and the like, he would use those monies for that purpose. I consider that the plaintiff's evidence as to his future intentions in this regard was soundly based on the evidence of his own limitations. 181Mrs Foreshew confirmed that the plaintiff had carried out " quite a bit " of housework and did the cooking before his accident. She confirmed that since the accident in question, the plaintiff has essentially ceased carrying out domestic activities apart from cooking 2 days per week, and occasionally mowing the lawn. She stated that he could no longer trim the lawn edges because of a difficulty handling the equipment used for that purpose. She confirmed that the provision of 4 hours per week of domestic assistance would be helpful. 182In that regard, the Foreshew family home comprises three bedrooms, a bathroom, a kitchen, separate sitting and dining rooms, and a laundry. In my view, when the domestic activity of lawn mowing is also considered in the mix, a claim of 4 hours per week seems reasonable, given the description of the home. 183There are some comments within the medical evidence on the issue of the plaintiff's need for future domestic assistance. 184In his 2008 report, Dr Ellis expressed the opinion justifying the provision of domestic assistance for 4 hours per week twice per week for an initial 12 months after the accident, tapering off to a lesser extent thereafter. That opinion was expressed before the pathology in the plaintiff's lumbar spine was identified on imaging studies. In his 2009 report, Dr Ellis reiterated his earlier opinion, saying that such assistance would be required, but added the rider that the requirement would be for at least 12 months after the accident, then tapering down to a reduced level, from which I conclude the need would continue to some extent thereafter. In his 2010 report, Dr Ellis repeated that earlier view. 185In contrast to the views of Dr Ellis on this issue, in his first report, Professor Ehrlich referred to the plaintiff as coping with his domestic responsibilities. That statement was not defined or further explained in the report other than to state that the plaintiff had difficulty with lawn mowing until he had the operation on his toes some 18 months after the accident. Professor Ehrlich expressed the view that the plaintiff would not require future domestic assistance. 186As no oral evidence was called from these experts, it was not possible to reconcile these two opposing views other than by examining the history upon which they were based. Given that there was no exploration within the evidence of the plaintiff of the circumstances and the extent of any questions Professor Ehrlich had asked of him and which underpinned the history concerning the absence of the need for domestic assistance as summarised by Professor Ehrlich, I consider that it would be unfair and unsafe to assume that the plaintiff made an admission against his own interests to Professor Ehrlich to the effect that he did not require domestic assistance: Mason v Demasi [2009] NSWCA 227, per Basten JA at [2]. 187Furthermore, that history, as summarised by Professor Ehrlich, is inconsistent with the evidence of the plaintiff. It was not suggested to the plaintiff that he was exaggerating his claimed need for domestic assistance, or that he had given an inconsistent account of the claimed need when he was examined by Professor Ehrlich. 188In these circumstances, to the extent that expert evidence is required to support a claim for future domestic assistance, I prefer the opinions expressed by Dr Ellis. This is because they seem to me to be based on a detailed exposition of the plaintiff's history taken over the course of three consultations at which the plaintiff's physical limitations were the subject of medical evaluation and comment. In arriving at that conclusion I have also had regard to the reasons for preferring the opinions of Dr Ellis to those of Professor Ehrlich on the economic loss issue, namely, differing understandings of the nature of the plaintiff's injuries. 189Furthermore, I accept the evidence of the plaintiff that the condition of his left knee, left hip and lower back would make it difficult for him to carry out the heavier aspects of housework and home maintenance, which in my view demonstrates an injury based need for the claimed future domestic assistance, which was not the plaintiff's situation before the subject accident. 190I consider the claim for 4 hours per week to be reasonable, and reflective of the plaintiff's changed circumstances due to the subject accident. The claimed hourly rate of $40 per hour representing the commercial cost of such assistance is within the range established in the evidence and is within the range of rates frequently seen in similar cases. I therefore consider the claim for the value of 4 hours per week at $40 per hour, or $160 per week, to be on its face reasonable. 191The defendants submitted that since the accident, the plaintiff's wife had provided the claimed services to him gratuitously and no award should be made for future paid domestic assistance. The defendants relied upon the decision in Miller v Galdarisi [2009] NSWCA 353 at [14] to [25] in support of that proposition. 192I do not accept the defendants' submission in that regard because unlike the position in Miller v Galdarisi, where it was pointed out at [15], there was no evidence in that case that the pre-trial gratuitous assistance would cease at some time into the future, in the present case, the person providing the services, Mrs Foreshew, indicated that if funds were available for the services to be paid for, this would be the preferred course. In my view, that evidence distinguishes the present case from the evidentiary basis upon which Miller v Galdarisi was decided on this point. 193Furthermore, when the Foreshew family circumstances are considered, it would seem unlikely that in addition to her own work, Mrs Foreshew would have sufficient time to continue to carry out all the domestic tasks that were previously performed or substantially contributed to by the plaintiff. I infer from the evidence of marital tensions that had arisen since the plaintiff's injury, that Mrs Foreshew would be unlikely to continue to carry the burden of domestic tasks as well as her own work and the tasks associated with caring for her children. 194In my view, it cannot be reasonably assumed, from the evidence of Mrs Foreshew, that she would continue to willingly provide the assistance that she has been providing gratuitously until now: Miller v Galdarisi, at [21], particularly since there is evidence of marital tensions to be considered. In my view, this is not a case where a figure was "plucked out of the air": Miller v Galdarisi, at [24]. 195Instead, there is medical and lay evidence which supports the plaintiff's claim, and evidence from Mrs Foreshew which indicates she is sufficiently busy with her own work and responsibilities, that leads to the reasonable inference that if funds were available, as they will be following the conclusion of this litigation, the services will be obtained on a paid basis, and no longer provided on a gratuitous basis. 196I therefore accept the proposition raised by the evidence to the effect that if funds were available for the purpose, future domestic assistance would be obtained by payment at commercial rates, as has been claimed on the plaintiff's behalf 197However, I consider that the claim should be discounted to a modest degree to allow for the potential vicissitude that as the plaintiff's family grows, and his children leave the family home, the plaintiff may, as many people do, downsize his home with the effect that the extent of the need for 4 hours per week of paid domestic assistance may lessen over the course of his remaining life span. Although there was no evidence to justify a finding on this possibility, and to a degree it involves speculation, I nevertheless consider that it represents a type of vicissitude that should be accommodated by a discount, which I assess at 15 per cent. 198Accordingly, the projection of $160 per week at 5 per cent over 53 years (x 988.9) less 15 per cent for vicissitudes yields an amount of $134, 490. 199I therefore assess the plaintiff's damages for future paid domestic assistance in the sum of $134,490 .

Past child care 200The parties have agreed on the amount of damages to be awarded on account of past child care expenses in the amount of $754. I therefore assess the plaintiff's damages for past child care expenses in the agreed sum of $754 .

Future out-of-pocket expenses 201On behalf of the plaintiff it was submitted that the appropriate sum to be awarded for the likely cost of future medical treatment was $89,445. That sum comprised an allowance of $40,000 for the cost of future surgery, and an amount of $49,445, which was derived by projecting an amount of $50 per week for ad hoc recurring medical and allied expenses over the submitted life span. 202In contrast, the defendants submitted that the appropriate sum to be allowed for the plaintiff's likely future treatment needs was the sum of $9965. 203The medical evidence contains disparate views on the issue of the need, if any, for future medical treatment. On the one hand the reports of Professor Ehrlich state that no future treatment will be required. On the other hand, the final opinion of Dr Ellis reiterates his earlier expressed views, namely that the subject accident has aggravated the plaintiff's previous knee injury so that left knee replacement will be made more likely, at an estimated cost of $18,000, and that the pelvic fractures and injury to the hip joint will lead to progressive osteoarthritic changes in that joint, therefore requiring that the plaintiff have a hip replacement later in life, at an estimated cost of $20,000. In each instance, Dr Ellis stated that these costs would include ancillary expenses. No precise timing was specified for these procedures. 204In balancing the respective opinions I prefer the views of Dr Ellis to those of Professor Ehrlich because Dr Ellis has explained through reasons why the anticipated procedures will be likely to be required. I am therefore satisfied that some allowance in the plaintiff's damages should be made for future treatment. 205This is not a case where, like some cases, the evidence sets out a survey of the types of recurring treatment that would be required in the future, together with an estimate of the likely timing and cost of such treatment. Nevertheless, some allowance should be made. 206It seems reasonably clear that with ongoing knee, hip and back pains, the plaintiff will need to occasionally see his general practitioner and possibly, specialists, from time to time to consider his condition and his need for treatment, including medication. Whilst the evidence does not permit a prescriptive approach to quantifying that source of potential expense, I consider that over the plaintiff's lifetime, a lump sum buffer allowance of $10,000 should be made. 207When that amount is analysed, it roughly equates to the projection of $10 per week over 53 years on the 5 per cent tables. In my view this demonstrates that the amount is reasonable and should be included in the plaintiff's damages award. 208In conformity with my acceptance of the opinion of Dr Ellis as to the plaintiff's need for future treatment, I consider that an allowance should be made for the likely cost of the two surgical procedures. 209The need for hip replacement surgery will only arise for the plaintiff in later life. On the state of the evidence it is not possible to determine when that might occur in terms of years from now. In those circumstances, an arbitrary time must be selected in order to estimate the deferred cost. In my view, the sum of $20,000 for the estimated cost of hip replacement should be deferred for another 18 years, to when the plaintiff will be aged 50 years. The deferral of $20,000 for 18 years at 5 per cent (x 0.416) yields the amount of $8320. I consider that sum should be included in the plaintiff's damages assessment. 210The need for knee replacement surgery is likely to arise because of the aggravation of the earlier lower leg fracture. The impression I gained from the way in which Dr Ellis has expressed his opinion on this issue is that were it not for the aggravating effects of the 2007 accident, a left knee replacement procedure would not be required. Although there was some uncertainty on this, I find on the balance of probabilities, that this was the meaning that Dr Ellis was conveying in his reports. 211With regard to the likely timing of the left knee replacement procedure, as with the hip replacement, an arbitrary estimate must be made. In that regard, I consider that the cost should be deferred by 25 years to when the plaintiff is aged 57 years. The deferral of $18,000 for 25 years at 5 per cent (x 0.295) yields the amount of $5310. I consider that sum should also be included in the plaintiff's damages assessment. 212The total of these three components is $23,630, which I will round down to $23,000 in recognition of the fact that the evidence does not make mathematical precision possible in this instance. 213On behalf of the plaintiff it was argued that an additional allowance should be made for repeat joint replacement procedures, as commonly occurs, especially as the plaintiff is relatively young, and where such devices can and do wear out or fail. Whilst that may be a truism which on its face seems reasonable, such speculation, without medical evidence to justify such a conclusion, is not permitted: Strinic v Singh [2009] NSWCA 15; (2009) NSWLR 419. 214I therefore assess the plaintiff's damages for future out-of-pocket expenses in the sum of $23,000 .

Past out-of-pocket expenses 215The parties have agreed on the amount of damages to be awarded for past out-of-pocket expenses in the amount of $29,691. I therefore assess the plaintiff's damages for past out-of-pocket expenses in the agreed sum of $29,691 .

Summary of damages assessment 216My assessment of the Plaintiff's damages is summarised as follows: (a) Non-economic loss $275,000 (b) Past loss of earnings $140,000 (d) Future loss of earning capacity $527,520 (e) Past loss of superannuation $15,400 (f) Future loss of superannuation $58,027 (g) Past gratuitous care $6160 (h) Future domestic paid assistance $134,490 (i) Childcare - past $754 (j) Future out-of-pocket expenses $23,000 (k) Past out-of-pocket expenses $29,691 Total $1,210,042

217The above damages assessment does not require apportionment on account of the finding of the plaintiff's contributory negligence.

Disposition 218The defendants have failed to establish the defence of alleged contributory negligence. The plaintiff's damages assessment is $1,210,042.

Costs 219As the plaintiff has succeeded on the substantive issues calling for decision in the proceedings, unless otherwise ordered, I consider that he is entitled to have his costs paid by the defendants.

Orders 220I make the following orders: (a)Verdict and judgment for the plaintiff in the assessed sum of $ 1,210,042 without any discount for alleged contributory negligence ; (b)The defendants are to pay the plaintiff's costs on the ordinary basis unless otherwise ordered; (c)The exhibits may be returned; (d)Liberty to apply on 7 days notice if further orders are required;

Amendments 19 December 2011 - Slip rule Amended paragraphs: 217 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 December 2011