Hunt v State of New South Wales; Shipton v State of New South Wales

Civil Aviation (Carriers Liability) Act 1959 (Cth) Motor Accidents Compensation Act 1999, Schedule 1, s9 LEGISLATION CITED : Motor Accidents Act 1988, Part 6, s2A, s2B, s3, s6, s68A, s70, s79 Workers Compensation Act 1987

Air France v Saks 470 US 392 (1985) Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; 215 ALR 385 Australian Casualty Co Ltd v Federico [1986] HCA 32; 160 CLR 513 CASES CITED : Hunt v State of New South Wales; Shipton v State of New South Wales [2005] NSWSC 12 Kelly v The Queen [2004] HCA 12; 218 CLR 216 Leo N Dunn & Sons Pty Ltd v McPhillamy [2000] NSWCA 343 Povey v Qantas Airways Ltd & Anor [2005] HCA 33; 216 ALR 427

Paul John Hunt - Plaintiff PARTIES : Brett Leslie Shipton - Plaintiff State of New South Wales - Defendant

IG Harrison SC with JR Wilson - Plaintiffs COUNSEL : GA Laughton SC with M Hutchings - Defendant

Lamond Howard & Associates - Plaintiffs SOLICITORS : IV Knight - Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20629/00 Paul John Hunt v State of New South Wales 20630/00 Brett Leslie Shipton v State of New South Wales (No 2)

JUDGMENT 1 HER HONOUR: In these proceedings I delivered judgment on 2 February 2005 (Hunt v State of New South Wales; Shipton v State of New South Wales [2005] NSWSC 12 (to which I will refer as "the liability judgment")), holding the defendant liable to compensate each plaintiff in damages for personal injury suffered by him over a period between November 1997 and May 1999, in the course of his engagement as a police officer. The present judgment should be read in conjunction with the liability judgment. What follows is not, and is not intended to be, a comprehensive account of the liability judgment. Put briefly, each plaintiff was, at all relevant times, deployed at a branch of the NSW Police Service ("the Police Service") known by the acronym STAMP (School of Traffic and Mobile Policing). Their tasks were to prepare for the 2000 Olympic Games in Sydney, by training police officers in defensive and security driving techniques. The training involved the use of motor vehicles in a variety of adventurous and dangerous manoeuvres. As a result each plaintiff sustained back injury as a consequence of which he was medically retired from the Police Service. I held that the Police Service (which, although not strictly the employer of either plaintiff, for relevant purposes, operated essentially in that capacity) was negligent in two respects: in failing to provide adequate seating in the vehicles to accommodate the extremely rough treatment the vehicles and occupants were to endure in the training programme, and in failing to equip the vehicles with adequate seatbelts to protect the occupants against the consequences of that treatment. 2 Those findings meant that each plaintiff was entitled to an award of damages. Although the parties had proceeded on the basis that, the injuries having been caused in association with the use of motor vehicles within the meaning of the Motor Accidents Act 1988 ("the Act"), the provisions of the Act governed the quantification of the awards of damages, I experienced doubts that that was the correct approach. I accordingly invited further submissions in that respect. The operative provisions for that purpose are contained in Part 6 of the Act. I received written submissions from all parties, and a further oral hearing took place on 26 July 2005. 3 Senior counsel for the defendant submitted that, notwithstanding the doubts I had expressed, the correct position was, nevertheless, that the Act applied. Senior counsel for the plaintiffs (somewhat reluctantly, I thought) argued that the Act did not apply, and that damages ought to be assessed under common law principles. (Senior counsel for the defendant accepted that, if the Act does not apply, then damages are to be awarded by reference to those principles.) 4 Both counsel referred extensively to the decision of the High Court in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; 215 CLR 385. I have concluded that, while the approach to be taken to the question is considerably illuminated by the judgments in that case, it is not, by reason only of the quite different facts of the cases, determinative. 5 It is convenient to begin with the relevant statutory provisions.

Motor Accidents Act 1988 6 In s2A(1) of the Act its objects are spelled out. Relevantly, they include: "(b) to re-instate a common law based scheme under which damages can only be awarded after a finding of negligence, and

(c) by the scheme under this Act: (i) to reduce the cost of the former common law based scheme by limiting benefits for non-economic loss in the case of relatively minor injuries, and ..."

Subs(2) provides: "(2) It must be acknowledged in the application and administration of this Act: (a) that participants in the scheme under this Act have shared and integrated roles with the overall aim of benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable, and ... (c) that: (i) the premium pool from which each insurer pays claims consists at any given time of a finite amount of money, and

(ii) insurers are obliged under this Act to charge premiums that will fully fund their anticipated liability, and

(iii) the preparation of fully funded premiums requires a large measure of stability and predictability regarding the likely future number and cost of claims arising under policies sold once the premium is in place, and

(iv) the stability and predictability referred to in subparagraph (iii) require consistent and stable application of the law." S2B requires a purposive construction of the Act.

The focus on the economics of awarding damages is echoed in s68A, to which I will shortly come. 7 The definition section is s3. Two of the definitions are presently material. The first is the definition of "injury", which is in the following terms: "' injury ':

(a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during: (i) the driving of the vehicle, or (ii) a collision, or action taken to avoid a collision, with the vehicle, or (iii) the vehicle's running out of control, or (iv) such use or operation by a defect in the vehicle, and

(b) includes: (i) pre-natal injury, and (ii) psychological or psychiatric injury, and (iii) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses." 8 The second material definition is that of "motor accident", which is in the following terms: "' motor accident ' means an accident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which causes the death of or injury to a person." 9 Part 6 of the Act is headed "Awarding of damages". The relevant sections are:

(a) to control the amount of damages that may be awarded to a claimant for the purpose of ensuring that the scheme under this Act is affordable, and (b) to achieve this control by the deliberate strategy of placing the burden of ensuring affordability on those who suffer relatively minor injuries so that sufficient funds are available to more fully compensate those who suffer more severe injuries." " 69 Application

(1) This Part applies to and in respect of an award of damages which relates to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle." " 70 General regulation of court awards

A court shall not award damages to a person in respect of a motor accident contrary to this Part." 10 Thereafter, the provisions of Part 6 are designed to implement the objects set out in s2A and s68A - that is, to place ceilings on the amount of damages that may be awarded, where the Part applies, in respect of the various heads of damage commonly awarded in personal injury cases. By way of illustration only, s79 is directed to limiting the amount of damages that may be awarded for non-economic loss. Subs(2) provides that the amount of damages to be awarded for non-economic loss shall be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded. 11 There are many other provisions which deal with other heads of damages to which it is not necessary to go.

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd 12 One difference between Allianz and the present case is that Allianz was concerned with the determination of liability under the Act; the present cases are not concerned only with the quantification of damages, whether that is to be under the Act or otherwise. 13 The plaintiff in Allianz was an employee ("Oliver") whose work included unloading airline containers from a vehicle fitted with a mechanism for that purpose. The mechanism became defective and inoperable. The employer directed Oliver to unload the containers manually. As a consequence of doing so Oliver suffered injury. There was no dispute that the system of work was unsafe or that Oliver was entitled to be compensated by his employer for his injuries. The dispute that arose was whether the employer was to be indemnified for its undoubted liability to Oliver by the insurer of its liability in respect of the use and operation of the motor vehicle, or by the insurer of its liability under employment legislation. As in the present case, the essential question was whether the injury to Oliver was one subject to the provisions of the Act. There, however, the factual parallels with the present case end. 14 In Allianz, all members of the High Court held that the injury was not one to which the Act applied. That was, however, as I read the judgments, for reasons that cannot be brought to bear upon the facts of the present case. 15 The key to the decision in Allianz lies in the proper construction of the definition of "injury" in s3 of the Act. On the facts in Allianz, the injury to Oliver came within that definition only if it could be shown to have been the result of and caused by a defect in the vehicle during its (negligent) use and operation. (The injury was not related to the driving of the vehicle, to a collision or avoidance of a collision, or the vehicle's running out of control.) 16 There was no doubt that there was a defect in the vehicle. That was why Oliver was directed to unload the containers manually. In a joint judgment, Gummow, Hayne and Heydon JJ isolated the question as one of causation: "95 ...whether the state or condition of the vehicle (was) to be treated as causative [of the injury] in the relevant legal sense required by the [Act]." 17 Also worth extracting are paragraphs [60] (in the judgment of McHugh J) and [103] (in the joint judgment): "60 In the present case, however, Mr Oliver's injury was not a consequence of contact with or use of the unloading mechanism. Even on a common law approach to causation, uncontrolled by the objects of the Act, the defect in the vehicle did not cause Mr Oliver's injury because it had no physical connection with the injury. There was no direction to use the defective loading mechanism. On the contrary, there was a direction to work without it." "103 It was the system of work adopted by GSF to deal with the problem of unloading presented by the failure in operation of the motorised T-bar and, in particular, the direction to use the crowbar to lever the containers which had a predominant quality for, and an immediacy to, Mr Oliver's injury. The defect in the T-bar was not a defect by which the accident was caused in the necessary statutory sense." 18 The same cannot be said of the present cases. The injuries to both plaintiffs sit comfortably within a literal and sensible reading of s6. 19 I have already held, in the liability judgment, that these injuries were caused by the fault of the Police Service (for whose defaults the defendant is responsible) which was the owner of the vehicles; if it is not already clear, I now hold that they were caused by that fault, in the use and operation of the vehicles; and that the injuries were the result of, and caused during: (a) the driving of the vehicles (sub-para (i) of the definition); (b) a collision (or collisions), or action taken to avoid a collision or collisions with the vehicles (sub-para (ii)); and (c) by reason of defects in the vehicles (inadequate seats and seatbelts) (sub-para (iv)).

The definition of injury is thus fully engaged. 20 The ratio of Allianz does not, therefore, guide the present determination. There are, however, many observations and passages in Allianz that do give such guidance. At [8] McHugh J observed: "The difficulty of the case arises from the failure of the Act to state expressly or inferentially that that Act does not apply if the Workers Compensation Act or, indeed, any other statutory public liability scheme, applies to the facts of the case." 21 That observation has no implications for the determination of the present issues; neither the Workers Compensation Act 1987 nor any other statutory public liability scheme would apply in the absence of the Act. It is by common law principle that damages are to be assessed if the Act does not govern that assessment. 22 The Act is not explicit as to the circumstances (if any) in which, where an injury comes within the s3 definition, the Act nevertheless does not apply. 23 At [43] of Allianz McHugh J wrote: "Although the Act establishes a compulsory third party insurance scheme for motor vehicle injuries, the Act does not and was never intended to provide a universal, comprehensive scheme to award damages to every person who sustains an injury that was in some way connected to a motor vehicle. The Attorney-General made a statement to this effect when he gave the Second Reading speech for the 1995 Bill [making amendments to the Act to bring it into the form in which it was at the time of the Allianz injury, as well as the present injuries]: 'The CTP [compulsory third party] policy and the motor accidents scheme simply are not, and were never intended to be, a comprehensive accident compensation scheme providing substantial damages in all cases of injuries connected in some way to the use of a motor vehicle.'" (footnotes omitted) 24 The High Court paid particular attention to the objects of the Act, both as stated in s68A (with reference to the quantification of damages as provided for in Part 6) and in ss2A and 2B. McHugh J wrote: "48 Santow JA held, correctly in my opinion, that, consistent with the Minister's Second Reading speech, the Act announces its own purposes in s 2A, and that cost-saving is the predominant consideration. His Honour held that in light of the cost-saving purposes of the Act, the breadth of its application is a relevant consideration. He found that '[i]f motor accident liability encompasses what is really employer liability, that purpose is clearly not served.' Given also that s 2B directs a construction of the Act that promotes its object over one that does not, '[a]ny narrowing of its coverage readily supports the cost-saving objects of the ... legislation. Any extension does the opposite. ... The 1995 amendments were introduced to narrow the definition of injury and thus its reach.' 49 In pursuit of the Act's objects, Parliament has limited the scope of the Act by means of the concept of causation. ... ... 53 The above examination of the subject, scope and purpose of the Act suggests three matters that are relevant in the construction of Pt 6 of the Act . First, the Act does not provide a universal compensation scheme for all injuries sustained in connection with a motor vehicle. Second, cost-saving and the need to keep the scheme affordable are significant objects of the Act . Third, the Act has tightened the definition of injury by reference to its cause. These three matters indicate that, in the inquiry into the question of causality, an approach that limits the scope of the Act is preferable to one that would extend its application. This in turn suggests that a close causal connection is required for the injury to satisfy the requirement the injury be 'caused ... by a defect in the vehicle'." (footnotes omitted) 25 I believe the following also to be correct, and to warrant express statement. The Act is not an Act that creates rights, or new rights, to compensation; it is not an Act that creates a compensation scheme. It is an Act that builds upon, and varies, by significantly limiting, rights developed at common law upon persons injured by the use of motor vehicles, and the principles by which compensation to which they are, at common law, entitled, is to be quantified. It is for that reason that the Act contains no provision asserting when, or the circumstances in which, an injured person will be entitled to an award of damages. There is not be found in the Act any provision that expressly confers any entitlement on any person injured as a result of the use of a motor vehicle. Rather, the right recognised at common law is assumed to continue, but as modified by the Act. The circumstances in which damages may be awarded are spelled out (by reference to the definition of "injury") and the quantification of those damages is modified (by the various provisions of Part 6). The right to compensation is not created by the definition of "injury" in s3. As McHugh J pointed out in Kelly v The Queen [2004] HCA 12; 218 CLR 216, and repeated in Allianz, a definition is not an enactment of substantive law. 26 The emphasis given by the High Court to the stated objectives of the Act, and of Part 6, reinforce the doubt I earlier expressed as to the application of the Act in the present case. The basis for querying the application of the Act is, however, different. It lies, not in the definition of injury, which, as I have concluded above, is amply met here: it lies in the words of s70. 27 I proceed on the basis that the common law applicable to negligently inflicted injury applies, subject to the modifications now contained in the Act to injury negligently inflicted involving the use of motor vehicles. That means that (as the defendant concedes) unless Part 6 of the Act applies, each plaintiff is entitled to an award of damages calculated on a common law basis. The question therefore is a simple one: does the Act apply or does it not? In my opinion the answer also is a simple one, although it may at first surprise some. In my opinion Part 6 of the Act does not apply, and for this (also simple) reason. 28 For present purposes the key provision is s70 (which appears in Part 6). S70 limits the award of damages to a person injured in a "motor accident" to those calculated in accordance with Part 6. I have earlier set out the definition of "motor accident". I repeat it here. A "motor accident" is "an accident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which causes the death of or injury to a person". (emphasis added) 29 "Accident" is not defined in the Act. It is therefore appropriate to have recourse to dictionaries in aid of the interpretation of that (commonly understood) word: Macquarie Dictionary (Revised 3rd Edition) 2003 (identical in Revised 1st Edition 1985): 1. an undesirable or unfortunate happening; casualty; mishap. 2. anything that happens unexpectedly, without design, or by chance. 3. the operation of chance ...; The Oxford English Dictionary 1989: 1. anything that happens. 1a. an occurrence, incident, event. Obs b. anything that happens without foresight or expectation; an unusual event, which proceeds from some unknown cause, or is an unusual effect of a known cause; a casualty, a contingency ... unforeseen course of events. c. esp. an unfortunate event, a disaster, a mishap ...; The New Shorter Oxford English Dictionary 1993: 1. a thing that happens. a. an event. ( obs) in gen sense b. an event that is without apparent cause or unexpected; an unfortunate event, esp. one causing injury or damage; 30 The meaning of the word "accident" was considered by the High Court in Australian Casualty Co Ltd v Federico [1986] HCA 32; 160 CLR 513. In a joint judgment of Wilson, Deane and Dawson JJ, the following appears: "As a matter of ordinary language in this country, an 'accident' (from the Latin accidens) means very much what the etymologist would expect. It is something which happens without intention or design. When used with reference to something which causes injury, it means an unexpected and unintended mishap. In that context, the ordinary and natural meaning of the word still corresponds with Lord Macnaghten's definition in Fenton v. Thorley & Co., Limited [[1903] AC 443, at p 448] which, although propounded in a Workmen's Compensation Act case, has commonly been accepted as applicable to the use of the word in public liability and other insurance policies: 'an unlooked-for mishap or an untoward event which is not expected or designed': (see, to the same effect, Lord Lindley [at p.453])." (p 527) (emphasis added) 31 In cases where the meaning of the word "accident" falls for consideration, the need to do so usually derives from some statute, provision or contract that confers rights upon a party who has, or is alleged to have, suffered some injury as a result of "accident". It is, therefore, always necessary to bear in mind the context in which the word appears, which may provide some guide to its intended meaning in that context. 32 In Federico, the respondent, Mr Federico, held an insurance policy that entitled him to certain benefits in the event of "bodily injury caused by an accident". As a result of the work he did as a tiler Mr Federico suffered injury. The insurance company declined liability on the policy, initially citing three grounds, of which only one was, by the time the matter reached the High Court, still extant. That was that Mr Federico's injury was not caused by an accident. 33 The majority in the High Court drew a distinction between an event that is an accident - dropping a heavy object upon one's foot, for example - and unexpected or unintended (accidental) characteristics or consequences of an intended act - holding a fragile object so tightly as unintentionally to break it is the example given. 34 But their Honours accepted that there was nothing unintended or accidental about what Mr Federico did in going about his tiling. What was unintended - accidental - was the consequences to him of that activity. Their Honours said that while the activities he undertook in his tiling were intentional, they incidentally created internal pressure to an extent greater than his disc system could bear without serious damage, and that this was both unintentional and unexpected. It was necessary to take into account the element of mishap or misadventure involved in this unexpected and unintended circumstance. That was an accidental incident or consequence of an intended act. Accordingly, their Honours held that it would be a distortion of ordinary language in that case to say that the injury was not caused by an accident. 35 These findings might appear, at first blush, if not to dictate, then at least strongly to suggest, a similar approach in the present case. But closer analysis reveals that they do not have that consequence. Their Honours went on expressly to recognise that their findings in this case did not necessarily encompass all circumstances of injury alleged to have been caused by accidents. At [532] they wrote: "There are two further matters to which brief reference should be made. The first is that it may, in some cases, be necessary to define with greater precision what is involved in the notion that a mishap be unintended and unexpected. An obvious example of a case where more precise definition of those notions would be required is where the risk of the mishap was foreseen or courted even though it was thought unlikely that it would occur." (It is unnecessary to consider the second matter to which their Honours alluded.) 36 The "mishap" in the last sentence of this passage is not the event that caused the injury, but the unintended consequence of that event - in Mr Federico's case, the accumulation of internal pressure causing damage to his body, or the injury itself. There was, as their Honours said, no suggestion in that case that the risk of mishap was foreseen or courted, even if thought unlikely. It can hardly be said in the present case that the mishap - the accumulated damage to the backs of the two plaintiffs - was anything other than foreseeable - such a finding is fundamental to the determination I have already made. Foreseeability was also not an issue in Federico. 37 The fact that a "mishap" - unintended consequence - is foreseeable or even foreseen does not, of course, necessarily convert accidental injury into something else. But it may mean that the injury is not accidental. 38 In my opinion, in its context in s3 of the Act, "accident" is a reference to an event which causes injury; the injury is separate and distinct from the "accident". 39 That brings me to the decision of the High Court in Povey v Qantas Airways Ltd & Anor [2005] HCA 33; 216 ALR 427 which supports the view I have just expressed. That case involved a claim for damages pursuant to the Civil Aviation (Carriers Liability) Act 1959 (Cth), which (in a roundabout way and by reference to Articles in certain international treatises) entitled an airline passenger to damages for bodily injury where: " ... the accident which caused the damage so sustained took place on board the aircraft ..." 40 The issue in that case was whether or not the plaintiff's statement of claim disclosed a viable cause of action. The majority (Gleeson CJ, Gummow, Hayne and Heydon JJ) adopted the distinction between "accident" as the event of a person's injury and the cause of the injury ([32]). They held that, in the context in which the word there appeared, it referred to the event rather than the cause of injury. In doing so they followed the decision of the Supreme Court of the United States of America in Air France v Saks 470 US 392 (1985). At [34], their Honours held: "Further, in understanding what is meant by 'accident', it is necessary to give proper weight to the way in which Art 17 relates to three different concepts. Article 17 refers to 'damage', to 'the death or wounding of a passenger or any other bodily injury suffered by a passenger', and to 'the accident which caused the damage so sustained'. The damage sustained is treated as being distinct from the accident which caused the damage, and both the accident and the damage are treated as distinct from the death, wounding or other personal injury. What that reveals is that the 'accident', in the sense of 'an unfortunate event, a disaster, a mishap' is not to be read as being sufficiently described as an adverse physiological consequence which the passenger has suffered. It may be accepted that its happening was not intended. ... As the parties to this appeal accepted, 'accident' is a reference to something external to the passenger." (italics in original; footnotes omitted) 41 Their Honours then held that, in the instruments in which the word appeared, the concept of "accident" invited two questions: first, what happened on board the aircraft that caused the injury of which complaint was made?; secondly, was that happening unusual or unexpected? ([36]). 42 In coming to my views in the present cases, I have left out of account the circumstance that the events that gave rise to the plaintiffs' injuries were a series of acts or events; I have assumed that "accident" for the purpose of s70 of the Act may be constituted by a series of acts or omissions; this has proved to be correct: see Povey [35]. 43 Adapting the two questions asked in Povey to the present cases: it is not difficult to identify what happened that caused the plaintiffs' injuries. That was the series of manoeuvres and collisions which caused their bodies to be jolted and jerked and thrown around the vehicles. Nor is it difficult to answer whether what happened was unusual or unexpected. Certainly, in ordinary human activities one would have to say that these activities were unusual. They were not, however, in the daily lives of the two plaintiffs and their colleagues, unusual. And certainly they were not unexpected. They were precisely what the plaintiffs were engaged to do. 44 Accordingly, I have come to the view that the plaintiffs injuries were not caused by accident. They are therefore not within the meaning of s70 of the Act. The calculations of the damages to which they are entitled is not limited by Part 6 of the Act. This view is, I think, consistent with and supported by, the decision of the Court of Appeal in Leo N Dunn & Sons Pty Ltd v McPhillamy [2000] NSWCA 343. 45 In the notes to s3 in Butterworths' Motor and Traffic Law Service, it is suggested that the construction I propose would be "intolerable". However, that is said to be because the purpose of the Act is to compensate persons who have suffered injury or death caused by the fault of others in the use or operation of a vehicle. This can now clearly be seen to be incorrect: see the various passages from Allianz extracted above. The editors mis-state the purpose of the Act. 46 I am reinforced in the view I have taken by reference to the passages I have extracted from Allianz. In particular, the passage drawn from the judgment of Santow JA, adopted by McHugh J, that: "'... [i]f motor accident liability encompasses what is really employer liability, that purpose is clearly not served.'" 47 Before proceeding to calculating the damages to which the plaintiffs are entitled under common law principles, it is appropriate to make the following observations, since this conclusion may be perceived to have unforeseen implications. 48 It may well be that, if my analysis is correct, the quantification of damages to be awarded in respect of some injuries caused by or arising out of the use of motor vehicles will not be within the Act. One example that comes to mind concerns injuries caused where a vehicle is used, deliberately, as a weapon. That does not, of course, mean that the injured person would not be subject to an award of damages. But there may be an apprehension that individuals so injured would not be entitled to the benefit of compulsory third party insurance. This does not appear to me to be so. By s10 of the Motor Accidents Compensation Act 1999, a policy of insurance issued under that Act insures the owner of the motor vehicle, and any other person who at any time drives the motor vehicle, whether with or without the consent of the owner: "... against liability... in respect of the death of or injury to a person caused by the fault of the owner or driver of the motor vehicle." 49 This terminology is consistent with that used in the various forerunners of the Motor Accident (Compensation) Act, including s9 and Schedule 1 of the Act. The cover provided by third party insurance is not confined to cases where damages are quantified under the provisions of the Act. As I read this section therefore, even where damages are to be awarded at common law, rather than under the Act, the compulsory third party insurance provision would continue to ensure that the injured person would have the benefit of the owner's compulsory insurance. 50 In my opinion, the proper basis on which to assess the plaintiffs' claims to damages is on that of "employer" liability. Their injuries were caused by nothing other than unsafe systems of work. The objects of the Act in conserving the funds available to persons truly injured by motor vehicle accidents would not be served by making those funds available to an employer who conducted itself as the Police Service here conducted itself. (I have not overlooked the fact that, in all probability, the funds would not, in the present case, be drawn upon for that purpose because of the identity of the defendants. Nevertheless, the principle remains the same: if another employer caused injury to an employee by requiring that employee to engage in an unsafe system of work, even though that unsafe system of work may involve the use and operation of motor vehicles, that liability ought not to be met out of the funds available to provide compensation under the Act.) 51 I now proceed to an assessment of damages in each case.

DAMAGES 52 At the outset I should say that I accepted both plaintiffs as truthful witnesses. Each was impressive, and each gave truthful evidence, without exaggeration, of his condition. Indeed, despite some forays in cross-examination, I do not understand counsel for the defendant to suggest otherwise. What I propose to do is make the necessary findings of fact, and determinations that will enable the final calculation of damages to be performed by the parties.

Mr Hunt 53 Mr Hunt was born on 10 June 1955. After an initial career as a panel beater, he joined the Police Service in December 1979, when he was 24 years of age, after a twelve-month training programme and a further twelve-month period as a probationary constable. His initial career in the Police Service appears to have been unremarkable and conventional, with appointments at various country and city police stations, frequently with the local Highway Patrol, he having completed a period of training for that deployment. 54 In 1992, at the age of about 37, he was appointed to STAMP. It is not clear what rank he held at that time. 55 Mr Hunt was a committed and ambitious officer of STAMP. He aspired to becoming officer in charge of STAMP, for which position he would have been promoted to the rank of Chief Inspector. 56 He was medically retired from the Police Service in the middle of 2001. At that time he held the rank of Senior Sergeant. He began to suffer pain while still participating in the driver education programme, although the pain was intermittent and tended to subside during periods when the courses were not being conducted. Eventually, however, he found it necessary to limit his physical participation in the more violent aspects of the programme. 57 He then was involved in the motorcycle accident, to which reference has been made in the liability judgment. This caused severe pain in the lower back and right leg, and pain in the left leg, together with pins and needles and tingling. This precipitated his first consultation with a medical practitioner. He was prescribed painkillers and was off work for three weeks. During this time, he said, he was "virtually incapacitated". He was unable to dress himself, to do any housework or domestic duties; he experienced great difficultly getting into and out of a car to seek medical treatment; he had great difficulty in walking. He was unable to play any sport or even to swim. 58 After three weeks the pain began to subside and, after a rehabilitation programme, he resumed work, but on light duties. From the middle of 2001 he was on full-time sick leave and undertaking no duties. His actual retirement occurred in March 2002. At the time he gave his evidence (March 2004), Mr Hunt had daily constant pain which varied from a very low level to a high level depending upon his activities. He gained some benefit from exercising in a swimming pool, but the pain is exacerbated by, for example, heavy gardening. 59 He has found it necessary to give up many pre-injury activities, including golf and membership of a Rotary club. While living in Goulburn, Mr Hunt and his wife established a child care centre, which Mrs Hunt conducted and to which Mr Hunt contributed by looking after general maintenance, both indoor and outdoor, gardening and directing play equipment. 60 In about 2001 he and his wife moved from Goulburn, where they owned a house and garden, to Nunderi, on the North Coast of NSW. 61 For a time Mr Hunt was able to work, part-time in that area as a bus driver. He gave up this work in May 2003, because the pain in his back became too much for him. 62 At some stage Mr Hunt acquired a degree in Adult Communication, and, on moving to the North Coast, he contacted TAFE with a view to obtaining part-time lecturing, possibly in subjects such as justice and administration. He was of the view that he could do this for two, or at most, three days per week. This was because of the uncontrollable nature of the pain that he suffers. 63 He acknowledges that he is able to engage in gardening, although, if he is to attempt any heavy gardening, he wears a girdle. There are a number of household tasks, such as vacuuming, sweeping, cleaning windows, painting and the like which he is now unable to do. 64 He attends a general practitioner about four times a year, for which he pays $45 each time; he has had some physiotherapy at a cost of $65 per consultation. 65 He said that, had he not been forced out of his work, he would have remained with the Police Service until retirement age of 65. 66 His day to day life now is, he said, "very sedentary"; he does some light gardening and tries to assist his wife who was in the process of attempting to establish a business subcontracting services in the childcare industry. 67 He receives assistance from his 19 year old son, from his own brother and his brother in law in the tasks he is unable to undertake. 68 Mr Hunt was examined in July 2001, and again in February 2004, by Associate Professor Les Barnsley, a consultant rheumatologist, who provided reports as to his condition. Professor Barnsley also gave oral evidence. In his first report Professor Barnsley diagnosed "a significant annular tear" of the L5/S1 disc, which he considered consistent with the symptoms described by Mr Hunt. 69 In his second report Professor Barnsley said: "Your client's disability stems from his back pain. There was nothing on this history that leads me to question the veracity of his complaints. He has significant functional impairment stemming from his back pain. I believe that he has had significant pain over the last seven years from his back and I think it is more likely than not that he will continue to experience pain at or about the current levels for the foreseeable future. It is clear that his back pain has had a profound effect upon his vocational and recreational activities and he has significant restrictions because of ongoing symptoms of pain. ... I believe that Mr Hunt's fitness for work on the date that I saw him, 3rd February 2004, was that he was unable to perform his pre-injury duties as a policeman and police driving instructor. He would be capable of performing some duties but these would be quite limited. Specifically, he should not be put in a position where he has to sit down or stand for prolonged periods of time without been (sic) able to shift position or take appropriate breaks. He should not be involved in any activities that involve significant lifting, pushing or carrying." 70 In this report Professor Barnsley expressed the view that Mr Hunt was suffering a 15% permanent impairment of his low back "compared to the most extreme case". He foresaw no specific treatment. He thought that Mr Hunt had "a significant restriction of his future earning capacity" by reason of the restrictions on his activity, and thought that he would be likely to require some assistance with heavier tasks at home. 71 Dr Fred Blake, an orthopaedic consultant, was qualified to offer an opinion on behalf of the defendant. Not surprisingly, having regard to the defendant's decision medically to retire Mr Hunt, Dr Blake's opinion was not significantly different to that of Professor Barnsley. His prognosis was for continuing or intermittent pain and disability in the lower back and right leg with a degree of improvement more likely than deterioration but recognising the possibility of deterioration. 72 Dr Blake attributed the bulk of Mr Hunt's symptoms to the motorcycle accident, but I have already dealt with that issue in the liability judgment. 73 Dr Peter Henke, a consultant in rehabilitation medicine, was also qualified to provide a report on behalf of the defendant, and this he did in December 2003. Dr Henke thought that Mr Hunt would, over the ensuing three years, regain his fitness for clerical work of normal working hours. 74 In a later report, Dr Blake assessed Mr Hunt as having a 20% impairment of the back, 10% permanent loss of efficient use of the right leg and no loss of efficient use of the left leg. 75 I accept that Mr Hunt is significantly disabled. I accept that it is unlikely that he will return to full-time work, although (and it is not contested) he retains some residual working capacity.

general damages 76 Having regard to the six years during which Mr Hunt has endured his symptoms, and the bleak prognosis for the future, I am of the view that an appropriate sum to compensate Mr Hunt by way of general damages is $100,000. That is the amount I propose to award. (If, contrary to my view, damages were to be awarded under the Act, I would assess Mr Hunt's condition as 30% of a most extreme case.) He will be entitled to interest on this sum. Of this, I would allocate 20% to the past and 80% to the future.

future medical expenses 77 On behalf of the plaintiffs it is submitted that an allowance should be made for six consultations per year with a medical practitioner, at a cost of $45 per consultation. This is not commensurate with the evidence given by Mr Hunt as to his current rate of consultations, which is quarterly. On behalf of the defendant it was submitted that no allowance should be made, because, prior to the motorcycle accident, Mr Hunt did not consult a general practitioner, and it was only after that event that he sought medical treatment. 78 This may be so, but it is not in accord with the conclusions I have already reached as to the cause of his present condition. 79 I propose to allow four consultations with a general practitioner per year, at a cost of $45 each. 80 It was also claimed on his behalf that he would require biennial assessment by a spinal injury specialist, at a cost of $165. The defendant accepted that the claim was not unreasonable, but noted that Mr Hunt is not under the care of a specialist at the moment and submitted that "the amount claimed should be limited". How it should be limited was not specified. I agree that the claim is not unreasonable and I see no reason to doubt the cost. I propose to allow the amount claimed, which has been quantified in the plaintiff's written submission as an amount of $1,325.74. 81 Mr Hunt also claimed physiotherapy expenses at six sessions per year at a cost of $35, yielding a sum of $3,368.55. The defendant accepts the claim and the quantification and I propose to allow it. 82 A claim is also made for "remedial massage" with the assertion (in the written submissions) that he has had remedial massage over the last twelve months at an average cost of $50 per week, and that he requires one such session each week. The sum claimed is $41,665. There was no evidence to support the claim; it is disputed by the defendant on the basis that, an allowance having been made for physiotherapy, the massage claim is double dipping. 83 I must confess that I am troubled by the absence of evidence to justify the claim. However, in my view the physiotherapy claim is very modest and does not justify a conclusion that a claim for massage is double dipping. I think some allowance should be made, but not in the amount claimed. I propose to allow $10,000. 84 A claim is also made for membership of a swimming pool for the purpose of hydrotherapy. The defendant does not accept the claim. Once again the evidence is extremely limited. It is true that Mr Hunt said that he obtains some relief from swimming, but there is no evidence of the cost of that to him. However, the claim made is, again, modest - $2 per week for life, totalling $1,667.60. In the circumstances I think it should be allowed. 85 Finally, under this heading, Mr Hunt claims $9,221.83 for pharmaceuticals, being analgesics and anti-inflammatory medication. The claim and the quantification are agreed and are allowed.

past voluntary assistance 86 I have above referred to evidence of assistance given to Mr Hunt by members of his family, including his wife, in relation to household tasks and maintenance which he was previously able to carry out and in respect of which he is now dependant upon others. The claim that is made is for ten hours per week at an hourly rate of $18. The defendant concedes the hourly rate, but not the claim. In doing so, the defendant invoked the provisions of s72(2) of the Act which preclude an award of compensation under this head (where the Act applies) where the services are provided for less than six hours per week and for more than six months. That section can be put to one side, having regard to the conclusion to which I have come. The defendant's written submissions on this point conclude with: "The short point is, he is not so disabled as to require domestic assistance. True it is he has some back pain." 87 In my opinion this understates the effect of the evidence, including the medical evidence adduced by the defendant itself. I do not think the claim is unreasonable and I will allow it. 88 The allowance is made in relation to the assessment of damages at common law; it would also be made if damages were assessed under the Act. However, at common law Mr Hunt is also entitled to interest on this sum and that is allowed.

future commercial assistance 89 Mr Hunt makes a claim for ten hours of commercial assistance per week from the date of judgment, for the period of his life expectancy, at the same rate. The defendant contests the claim, arguing that it has no factual basis nor any medical basis. 90 In my opinion the evidence does justify an inference, at least, that the need for services up to date will continue, relatively unchanged (or at least not diminished), into the future. 91 On behalf of Mr Hunt a concession was made that it would be open to limit the allowance for future care to, say, the date when Mr Hunt will attain the age of 70 and might be presumed to stop performing domestic duties and general household maintenance. I do not accept the concession. Although, no doubt, as he ages, Mr Hunt's ability to perform such tasks will diminish, he will always suffer a deficit by comparison with an uninjured person, or by comparison with what could have been expected of him had he been uninjured. In fairness to both parties, I think the allowance should be made until the date when he attains 75 years of age; but it should be subject to the usual discount for contingencies.

economic loss 92 On Mr Hunt's behalf it was submitted that it is likely that he would have attained the rank of Chief Inspector as was his ambition. 93 I am satisfied that Mr Hunt was indeed a committed and dedicated police officer, and an ambitious one. I am satisfied that he would have continued to progress in the ranks of the police service. However, there was no cogent evidence on which to determine that he would have achieved his goal of becoming a Chief Inspector. There was simply no evidence about the system of promotion within the Police Service, or the availability of positions of Chief Inspector, the number such positions, what was required in order to attain that position, or Mr Hunt's capacity relative to those who would be competing with him. On the evidence, I am unable to make the finding contended for. The only relevant material before me was contained in Schedule 1 to Mr Hunt's written submissions, and this is extremely limited. It shows wage rates for officers holding the rank of Senior Sergeant, at Levels 1, 2 and 3; holding the rank of Inspector, at Levels 1, 2, 3 and 4; and holding the rank of Chief Inspector at Levels 1, 2 and 3. On behalf of the defendant it was submitted that the Court would not accept that Mr Hunt was likely to be promoted beyond the rank of Senior Sergeant. I reject this. 94 In the absence of concrete evidence, I am prepared to infer that, by the age of 50, Mr Hunt would have attained the rank of Inspector Level 3. 95 I acknowledge that this is little more than a stab in the dark; it seems to me to be the fairest way of dealing with the competing contentions. 96 The defendant also challenged the proposition that Mr Hunt might have continued in the Police Service until the age of 65. Again, there was no evidence as to patterns within the Police Service, nor, indeed, the availability of engagement to that age. Nor was there evidence (other than one answer given by Mr Shipton), which the defendant could have produced, to show the normal retiring age for police officers. Mr Shipton's evidence was that 60 was the retirement age for police officers. Indeed, in the written submissions presented on behalf of Mr Hunt, there appears to be an assumption that retirement age is 60. This should be the basis of the calculations.

post injury earning capacity 97 Three options were presented on behalf of Mr Hunt as the basis for calculation of post injury earning capacities. The first assumed that he continues working as a Senior Sergeant, but for nine hours per week. This was taken from the hours he was working on light duties before his medical retirement and gives him a residual earning capacity of approximately $285 per week net. The second option was working as a bus driver for 20 hours per week. Working on the relevant award rates of $18.21, this would give an earning capacity of $265. (In my opinion this basis is untenable. Mr Hunt gave express evidence that he had to give up working as a bus driver because of his incapacity and unreliability.) 98 The third option is employment as a clerk for 20 hours per week at a rate of approximately $20 per hour. This would yield approximately $295 net per week. 99 In my opinion Mr Hunt should be determined to have residual earning capacity of $290 net per week.

future economic loss 100 The claim made on behalf of Mr Hunt in the written submissions is not easy to understand. However, in my opinion, the parties can make the necessary calculations on the basis of the findings I have already made: that is, that he would have remained in the Police Service until the age of 60; that, by the age of 50, he would have attained the rank of an Inspector Level 3; that his residual earning capacity from the date of his retirement is $290 per week. 101 Mr Hunt is, of course, entitled to interest on this component.

superannuation 102 Mr Hunt makes a claim for superannuation, but the basis on which it is made is unclear to me. However, it appears to be disputed only in a minor respect. It appears that Mr Hunt claims superannuation calculated as at 11% of what his gross weekly wage would have been absent his injury; the defendant does not contest the entitlement to an allowance for loss of superannuation, but argues for a figure of 9%. The obvious solution is to allow 10%, and this I propose to do. 103 There is, however, a gross discrepancy between the resultant figures contained in the written submissions; Mr Hunt's figures yield a total sum of $47,917.10. The defendant's figures result in an allowance of between $10,000 and $12,000. 104 If the parties are unable to reach agreement, having regard to what I have just written, it will be necessary for them to explain to me the basis of their calculations. 105 Mr Hunt also claims for a holiday loading at 17% of his lost earnings per annum for four weeks. So much is agreed. The actual figure will depend upon the amount awarded. It will be necessary for the parties to perform this calculation.

Mr Shipton 106 Mr Shipton was born on 13 February 1967. He joined the Police Service in 1986, at the age of 19. Like Mr Hunt, he was discharged on medical grounds in July 2001. 107 Like Mr Hunt, his career was conventional and unremarkable until the events that give rise to the present claim. 108 He was transferred to the Goulburn Police Academy as a driver trainer as early as May 1991. While he was there in 1993 he experienced some pain in the lower back, which he attributed to gymnasium work, and in respect of which he had physiotherapy and recovered. In 1994 he was promoted to the rank of Senior Constable. He undertook additional study from 1996. In that year he commenced work towards a Bachelor of Education, which he completed in 1997. Subsequently he completed a Graduate Certificate in Management through Charles Sturt University in 1999, and a Master of Education in 2002 through the University of Technology, Sydney. 109 By the time of his discharge he was a Level 5 Senior Constable. 110 Mr Shipton was also ambitious, and was intent on obtaining promotion. It was to this end that he undertook his university courses. He hoped to attain the rank of Inspector or greater. 111 His intention was to remain in the Police Service until what he said was the retirement age of 60. 112 In April 1997, following a bout of tyre changing, he again experienced some mild lower back pain for which he had physiotherapy and from which he recovered. As early as the first day of the first course in which he was involved Mr Shipton began to suffer some weakness in his back and general tiredness. This remained static for a time, and then began to deteriorate. He did not seek treatment, thinking that he would improve, and, indeed, after the first course concluded, this proved to be correct. 113 In August 1988, still suffering moderate pain, he suffered an exacerbation which coincided with his reaching into a vehicle and picking up a video camera. He felt a very sharp pain in the middle of the lower back and felt the muscles spasm. His back became very stiff and very sore thereafter. He was in a lot of pain and spent a good part of the day lying down and taking Panadol from which he obtained no relief. The pain continued and he was unable to work for several days. He then consulted a medical practitioner in Goulburn. He had physiotherapy. The pain began to settle, but he never fully recovered. He was then off work for several weeks, continuing to suffer pain. 114 Mr Shipton also suffered emotional consequences of his injury and this had an impact upon his relationship with his wife, to whom he had been married only about a year. The couple separated for a time. Mr Shipton became withdrawn and uncommunicative. His wife, who was also a police officer, applied for and was granted a transfer to Moree. The couple reconciled and Mr Shipton took long service leave and joined her there. After a few months they left Moree and returned to Sydney. 115 Mr Shipton returned to full-time work at STAMP, but on restricted duties which mostly involved classroom teaching. This was in the middle of 1999. He found working normal hours too burdensome because of the pain in his back. He cut back his university studies and reduced his working hours from eight per day to six. He continued with this regime until he was discharged in July 2001. 116 During this time he had variable levels of back pain, which could be aggravated by such minor strain as lifting his baby son. 117 He was receiving regular medical treatment as well as physiotherapy, which he eventually gave up because he was not obtaining sufficient benefit. He was also having chiropractic treatment, massage and hydrotherapy. 118 Following his discharge, Mr Shipton was able to obtain some casual work marking for the Charles Sturt University; he obtained a job as an education officer at the Goulburn Correctional Centre in March 2002, and continued in that job until January 2003. From this employment, which was full-time, he received about $48,000 per year. 119 His back was quite stable at this time but was still susceptible to aggravation from quite minor activity. 120 In January 2003 the family moved to Queensland, where he obtained a position as an education officer at the Woodford Correctional Centre. This, too, was a full-time position, employing him for 36¼ hours per week. He remained in that employment until July 2003. He left this employment for a number of reasons, which included deterioration in the condition of his lower back, increasing frequency of aggravations, and a desire again to relocate. He was offered a half-time teaching position at Maroochydore TAFE which he accepted and which he held at the time of giving evidence. It was, however, a one-year contract. In this employment he was paid about $26,000 gross per year. 121 At the time of giving evidence he described his condition in the following terms: "Most of the time I might just have a mild level of pain. Sometimes I don't have any pain at all, especially kind of through the middle part of the day. When I wake up in the mornings it is quite stiff, my back. I get out of bed and I am just a little bit bent initially. After an hour or two that will work out, that stiffness, and again I generally feel not too bad through the day, depending on what activities I do through the day. Especially if I am looking after the children, it might then tend to get a bit worse later in the day, a bit sorer. Generally, it is in the centre of my back, sometimes a bit further across, more often on the right side into the hips a bit. When it's worse, it gets painful into the hips as well." 122 He was still receiving chiropractic treatment and some massage, but financial constraints meant that this was less than he would have chosen. He was taking a muscle relaxant, an anti-inflammatory, and occasional painkillers. 123 Mr Shipton has been denied his pre-injury activities of playing squash and running. Prior to his injury he was an active participant in the household chores, assessing himself as an equal contributor. He said that, post-injury, his wife does a greater proportion, which he assessed at about 70%. She undertakes the more strenuous activities such as floor mopping and moving furniture for vacuuming. 124 In cross-examination Mr Shipton acknowledged that he was a regular attendee at the gym where he engaged in an exercise programme that he had worked out with his sports injury specialist doctor. 125 Professor Barnsley also examined and reported upon Mr Shipton's condition. In his first report, dated 25 July 2001, he assessed the permanent percentage impairment of Mr Shipton's lumbar spine at 10%. He believed that he would continue to have symptoms of low back pain, which would most likely be episodic and which would interfere with his ability to perform some normal duties. He recommended that Mr Shipton avoid jobs requiring heavy lifting. 126 In a 2004 report Professor Barnsley expressed the view that Mr Shipton was not fit for his pre-injury duties but was capable of performing other duties involving less stress on the back and that give him opportunities to stand and move as required for symptom relief. He repeated his view that Mr Shipton suffers 10% permanent impairment. He did not anticipate operative intervention but thought that intermittent courses of physiotherapy would be beneficial. 127 Also in evidence was a report of psychologist to whom Mr Shipton was referred by the Commonwealth Rehabilitation Service in 1998. The psychologist proposed a management plan involving ongoing assessment, education about stress and depression, training in strategies for controlling anxiety and reducing stress and pain and supportive counselling directing at assisting with depression and adjustment to injury. 128 Thereafter the psychologist saw Mr Shipton on a number of occasions until the Shiptons moved from Goulburn. 129 Medical evidence provided on behalf of the defendant did not depart significantly from the views expressed by Professor Barnsley. 130 Psychiatric reports were tendered on behalf of the defendant. One psychiatrist, Dr Dyball, accepted that Mr Shipton's back injury clearly played a part in what he diagnosed as an adjustment disorder with some degree of anxiety and depression. A second psychiatrist, Dr Lucire, recorded depressive illness, from which Mr Shipton had fully recovered. 131 I accept that Mr Shipton was also a career police officer with ambitions for promotion which were likely to be realised had he not been injured. Again, the evidence is deficient as to any real support for specific findings as to his likely career path absent injury.

general damages 132 In my opinion the injury suffered by Mr Shipton is broadly comparable to that suffered by Mr Hunt. True it is, he is younger, and therefore a greater proportion of his life has been affected by his injury; and he suffered significant psychological effects, which, it seems, Mr Hunt did not. Nevertheless, I am of the view that the award of general damages should be the same in both cases. I propose to award Mr Shipton the sum of $100,000 by way of general damages. Of this, I would allocate 20% to the past and 80% to the future. 133 For the purposes of s79(2) of the Act (if it were relevant), I would assess Mr Shipton's case also as 30% of the most extreme case.

future medical expenses 134 Mr Shipton claims an allowance for two consultations with a general practitioner at a cost of $21; specialist consultations biennially at a cost of $71.10; osteopath and chiropractic treatment eight times per year at a cost per consultation of $63. Each of these is accepted on behalf of the defendant and will be allowed. He claims 20 massage sessions per year at a cost per session of $40. As to this, on behalf of the defendant it was merely observed that the massage is an irregular event and that there is no suggestion that he would continue to have massages as regularly in the future as he presently does. I do not accept this. I think, so long as Mr Shipton obtains benefit from the massages, which he obviously does, he will continue to have them as needed. The defendant's submission ignores the evidence to which I have referred, that he has less than optimum treatments at the moment by reason of financial constraints. I propose to allow the amount claimed.

pharmaceutical expenses 135 Mr Shipton claims for the various pharmaceuticals which he uses, which I have outlined above. The total claimed is an amount of $12,511.39. As to this, the defendant submitted that the Court ought to allow no more than $30,000. This is clearly an error. The defendant intended to refer to the total future and ancillary expenses claimed at $43,637.73. I propose to allow that amount. The defendant has not identified any excess in the amount claimed.

past voluntary assistance 136 A claim is made for past voluntary assistance on an average of ten hours per week, at a rate of $18 per hour. The defendant submitted that the Court should make an allowance for past voluntary assistance until Mr Shipton's return to full-time teaching on 8 May 1999 at three hours per week for about two years, at $25 per hour or $75 per week, giving a total of $7,800. 137 The evidence is far from detailed as to what assistance Mr Shipton has received in the past. However, bearing in mind his quite serious psychological condition, it is not difficult to infer that he needed, and was provided with, such assistance. It is likely that the extent of his incapacity was variable over the relevant period, but I would accept an average of ten hours per week. I propose, therefore, to allow the amount claimed. He is entitled to interest on that amount.

future commercial assistance 138 I am not, however, satisfied that into the future he requires more than six hours per week and I propose to allow that amount.

economic loss 139 Notwithstanding the evidence I have quoted above, it was submitted on Mr Shipton's behalf that the probabilities are that he would have achieved the rank of Chief Inspector. As in the case of Mr Hunt, the evidence simply does not allow such a finding to be made. Doing the best I can on the limited evidence available, I am of the view that Mr Shipton is likely to have achieved the rank of Inspector Level 4. The differential between him and Mr Hunt arises because of their ages on entry to the Police Service. In my view Mr Shipton could have expected to have achieved that rank by the age of 48.

post-injury earning capacity to date of judgment 140 I have referred above to the evidence of Mr Shipton's actual earnings since his discharge from the Police Service. I am satisfied that Mr Shipton's residual earning capacity is being fully exploited in the position he held at the date of giving evidence. 141 On behalf of Mr Shipton a calculation was made demonstrating his loss between his discharge, and the anticipated date of judgment. It seems to me that this could be simplified. There appears to be no dispute about what Mr Shipton would have earned had he remained in the Police Service; and, while the source of the figures is not clear, there seems to be no, or little, dispute about what he has actually earned in that time. In my opinion the parties are best placed to make this calculation. I will resolve any issues that remain outstanding after the parties have had the opportunity to do so.

future earning capacity 142 Mr Shipton's future loss of earning capacity should be calculated on the basis of the figures which I understand can be agreed referable to the career path I have accepted, together with his demonstrated earning capacity.

superannuation and holiday loading 143 Mr Shipton details his claims in his written submissions, and these are accepted by the defendant. These will be allowed and should be the subject of agreement between the parties. 144 The parties can also calculate the interest which should be allowed in respect of the various claims. 145 It will be necessary for the parties to undertake the necessary calculations, and to bring the figures up to date. I will direct that they jointly bring in those minutes of order to reflect the findings and calculations here stated. In the event that there is anything that I have overlooked, or that requires further clarification, the matters can be re-listed by arrangement with my Associate.

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