Hunter v Shelly & Anor

[1] The plaintiff claims damages for personal injuries sustained by him in the early hours of the 5 May 2001 when he was thrown from the back of a utility being driven by the first defendant along Bootooloo Road near Bowen.

[2] The defendants deny liability and allege that the plaintiff was guilty of contributory negligence.

[3] The plaintiff's wife (they were not married at the time but were in a relationship) worked as a barmaid at the Denison Hotel at Bowen. The Denison Hotel and the Merinda Hotel, some 10 to 15 kilometres north of Bowen were at the time owned by the same interests.

[4] The plaintiff's wife was asked by her superior on the afternoon of 4 May 2001 to leave the Denison Hotel where she was working and go and help at the Merinda Hotel.

[5] She was driven there by her superior who arranged with the first defendant, an employee of the hotel's owners, to drive her home when she had finished at the Merinda Hotel. The plaintiff went to the Merinda Hotel to drink during the period that his wife was working, arriving there at about 5.00 pm.

[6] When the time came to leave a little after 2.00 am arrangements were made for the first defendant to drive the plaintiff's wife, the plaintiff, another employee one Batten and a patron of the hotel, Deborah Jensen to their respective homes.

[7] The vehicle in which they were to travel was a Toyota Hi Lux utility. This is shown in exhibit 4.

[8] The plaintiff says that he got into the front of the vehicle but was then told that Jensen would be travelling as well. He said that as he did not want a woman to sit in the back of the utility he got into the back himself instead. Batten was already sitting in the back of the vehicle.

[9] The plaintiff and Batten travelled in the back of the vehicle seated with their backs against the cabin of the vehicle. Each said that they were holding onto the side of the vehicle. Batten was on the driver's side and the plaintiff on the passenger's side.

[10] The plaintiff's wife was seated beside the first defendant and Jensen was seated closest to the door.

[11] In order to take Jensen home it was necessary to drive off the Bruce Highway which the vehicle travelled along from Merinda heading towards Bowen and turn into Bootooloo Road which is where the incident occurred.

[12] The plaintiff had consumed a substantial quantity of alcohol during the course of the afternoon and evening. According to the notice of claim form (exhibit 10) he had drunk some 20 rums. He took a can of rum with him in the vehicle. He must have been substantially affected by alcohol at the time the incident occurred.

[13] In the course of cross-examination it was put to the plaintiff that the first defendant had told him that he did not want anybody travelling in the back of the vehicle and said to the plaintiff "If we get pulled up, it is your problem." According to what was put, the plaintiff replied, "It will be alright, if anything happens I will wear it."

[14] The plaintiff denied this. In fact the first defendant did not give evidence of this conversation and I am satisfied it did not occur.

[15] When he gave evidence the defendant claimed that he said when he found the number of people who were to travel in the vehicle that he would make two trips, taking the plaintiff's wife and Debbie Jensen home first then returning for the two men. He says that the men refused to get out of the back or at least the plaintiff did, and as a result he commenced the drive with the passengers that I have just described in the positions that I have just described. This account was not put to the plaintiff.

[16] Merinda is a small place some 10 to 15 kilometres north of Bowen. The hotel had closed some time after 2.00 am and the evidence suggests that there was nobody else around Merinda at the time. It is plain that there was no public transport available. I think it highly improbable that the first defendant made any such statements.

[17] The accident occurred as the vehicle was driven along Bootooloo Road. Exhibit 5 is a photograph showing Bootooloo Road in the direction in which the vehicle was travelling at the time when the incident occurred. The evidence suggests that the roadway was flat and straight for a number of kilometres. The bitumen surface was wide enough for two vehicles to pass. As will be seen, the area to both sides, but particularly to the left is open and vision is unobstructed.

[19] The defendant says that he was travelling at about 60 to 80 kilometres per hour with the lights on high beam. He says that he saw a kangaroo on the left hand side of the car and he applied his brakes but did not cause the vehicle to skid. He said the kangaroo "came across the road and I was going to hit it so I moved - I think I moved to the left-hand side and I've ended up hitting it anyway".

[20] He estimated that the kangaroo was about 10 metres in front of him when he saw it. He says that when he swerved his vehicle to the left the wheels did not leave the roadway. The front driver's side of his vehicle collided with the kangaroo. He marked exhibit 5 showing where he says that the kangaroo was when he saw it. This is where the cut grass meets the uncut grass.

[21] He heard Batten call out that the plaintiff had fallen out of the back of the utility. He pulled the vehicle up and they returned to find the plaintiff lying on the roadway. He was at that time in the process of pulling up.

[22] In cross-examination he said that he had swerved to the right towards the middle of the road before then swerving to the left. He could not say if the kangaroo was stationary or moving when he first saw it.

[23] The plaintiff's wife, Megan Hunter, gave an account of what took place after they left the hotel and prior to driving away which is supportive of the account given by the plaintiff.

[24] She was seated beside the first defendant and as he drove along she said that she became concerned that he was travelling too fast, being concerned about the possibility of kangaroos in the area. Because of this she looked at the speedometer and saw that it was registering 120 kilometres per hour. She looked back and saw a kangaroo sitting on the left side of the road "sitting on the gravel". It was, she said, standing still or sitting still at the time "relatively close" to the bitumen.

[25] The kangaroo jumped onto the roadway and the first defendant swerved to his left and then swerved back to the middle of the road. The car collided with the kangaroo.

[26] It was her evidence that the vehicle had slowed but that the wheels hadn't locked. She had the impression of her husband coming out of the vehicle in the course of its swerving.

[27] Jensen, who was seated in the front, closest to the passenger's side door, gave an account which was to the effect that the kangaroo, when she saw it, was close to the side of the road and that it did not in fact jump onto the road, but that the first defendant swerved, having seen it and struck the kangaroo. I do not accept this account and think it is plainly in error. She had expressed the opinion that the vehicle was being driven "safely" although she could not give an estimate of its speed.

[28] Batten gave evidence that the vehicle was being driven at about 80 kilometres per hour and that the swerve of the vehicle was quite gentle and created no difficulty at all for him seated in the back. He gave evidence that the first defendant had before leaving the hotel expressed some concern about people sitting in the rear of the vehicle.

[29] I should say that the impression I had of Batten was one of a person anxious to give an account which was exculpatory of the first defendant and his driving. I do not accept that the swerve was as gentle as he suggests. It was plainly sufficient to cause the plaintiff, a heavily built man, to be thrown upwards and over the side of the utility (about 30 centimetres) and out of the vehicle. I also do not accept his account of the first defendant raising any concerns about people travelling in the rear of the vehicle.

[30] I am inclined to accept the evidence of the plaintiff's wife, that the vehicle was travelling at a high speed and that she looked at the speedometer and saw that it was travelling at about 120 kilometres per hour. I thought she was an impressive witness.

[31] Such a speed would plainly be excessive. It would not only exceed the speed limit but would make it difficult for a driver to react to and take evasive action if he was confronted with anything in front of him.

[32] In my view the evidence justifies a conclusion that the plaintiff ought to have seen the kangaroo a significant time and distance before he did. As I have said, it was on his account only 10 metres away from him when he first saw it and he was not certain whether it was stationary or moving at that time. When Megan Hunter saw the kangaroo it was stationary. It cannot however be known for how long it had been stationary at the time she saw it. She saw the kangaroo immediately prior to the swerving of the vehicle and the application of the brakes.

[33] The photographs show a long straight level stretch of road with clear areas to the side, particularly to the left where the kangaroo came from. The first defendant was aware of the risk of encountering kangaroos in the district, although not necessarily in this area particularly.

[34] It seems to me that had the first defendant been keeping a proper look out and travelling at a reasonable speed he ought to have seen the kangaroo significantly earlier than he did and been in a better position to take steps to manage the situation.

[35] I accept the evidence of Megan Hunter that the kangaroo was on the edge of the gravel when she saw it, which would suggest it was significantly closer to the road than where the first defendant says it was. He marked on one of the photographic exhibits where he suggests he saw it.

[36] If the kangaroo was stationary at all times as the first defendant approached it then plainly he should have seen it much earlier than he did. Indeed it was conceded in addresses by counsel for the defendants that this would be so. The position is not quite so clear if the kangaroo had been in that position for only a very short period, having moved there before pausing. Nonetheless I think it reasonable to conclude that had the kangaroo moved to that position whilst the vehicle was approaching the probabilities are that the first defendant with the lights of the vehicle on high beam ought to have been aware of its approach and presence.

[37] If, as I think is the case, the defendant ought to have seen the kangaroo at a point at which he was in a position to take control of his vehicle and to manage the situation, a number of possibilities existed. The kangaroo may have passed across the roadway in front of the vehicle safely, or if it had stopped, the defendant might by perhaps sounding his horn, have caused it to move out of the way. In the event that it remained in the centre of the roadway, the defendant, had he seen the kangaroo earlier and been travelling at a reasonable speed, ought to have been able to pass the kangaroo in such a way and at such a speed as to avoid the need to swerve in the way in which he did which, as I have indicated, generated such forces as to cause the plaintiff to be lifted and thrown out of the vehicle.

[38] I find that the defendants were negligent because of the first defendant's failure to keep a proper look out and because he travelled at an excessive speed in the circumstances and that such negligence was a cause of the plaintiff's injuries.

[39] There are particulars of contributory negligence alleged. I am not persuaded that the plaintiff was negligent in travelling in the back of the vehicle in the circumstances in which he did. There was no alternative if he wished to get home that evening on the evidence before me. At least there is no evidence which would suggest any alternative means of getting home. I have already said I do not accept the evidence that the first defendant offered to make two trips.

[40] However it seems to me clear that the plaintiff must not have been holding onto the side of the vehicle securely if at all. Batten was not thrown from the vehicle. In the circumstances in which he was travelling, the plaintiff in my view was guilty of a failure to take reasonable care for his own safety by failing to maintain an adequate hold upon the vehicle so as to protect himself in the event of any sudden movements of it and he failed to do so. No doubt his consumption of alcohol may have played a significant role in this.

[41] I think that an appropriate apportionment of responsibility between the plaintiff and the defendants is 75 per cent to the defendants and 25 per cent to the plaintiff.

[42] The plaintiff was born on 13 July 1973. He was educated to Grade 10 at a Queensland high school. For a period he undertook a refrigeration mechanic apprenticeship but left after nine months when the company by whom he was employed failed. Thereafter he has worked in a variety of unskilled positions such as builder's labourer and similar jobs.

[43] He was a good sportsman. His main interests appear to have been rugby league and power lifting.

[44] The plaintiff presented in court as a heavily built man who now carries a good deal of excess weight. The impression I was left with was of a somewhat rough and ready character who placed great emphasis upon and perhaps even defined himself by reference to his physical strength and capabilities.

[45] He presents as a person who having had a substantial loss of these capacities sees himself as having been significantly diminished as a human being. I had the impression that he was a genuine person who genuinely feels badly about this and would like to overcome his difficulties.

[46] Whilst the plaintiff was, I am satisfied, a physically strong and able man it is plain that he did not work constantly. In his statement (exhibit 2) he says that his lifestyle prior to meeting his wife was to work in unskilled jobs for a period of time and when he had earned enough money to travel around he would leave, taking another job when the need to obtain further money arose.

[47] He met his wife in December 2000 in Townsville. He moved to Bowen to live with her in January 2001 and they were living in Bowen when he was injured. He had not worked for almost a year prior to the accident but says that he intended to work on a small crop farm in the Bowen area where his wife's father worked and that his wife's father was to obtain a position for him. It is clear from material placed before the court without objection that this would not have occurred if it indeed would have occurred until somewhat later in the season. He and his wife had discussed moving to Darwin to obtain work. His evidence was that there was work available there, something which he had learned through others.

[48] The picture then is of a man who was fit and able but whose work history was interspersed with significant periods of unemployment when he would move around.

[49] At the time that he was injured he was in a relationship and his partner was pregnant with their child who was born on 30 October 2001. The position then, it seems to me, either had been reached or was shortly to be reached when the plaintiff would have had a somewhat greater incentive to settle down and receive a steady income from which he could provide support to his wife and child. After the birth of the child, the plaintiff's wife might also have continued to work. Nonetheless there has to be taken into account in any assessment of damages the fact that he may have had significant periods of unemployment given his pre-accident work history.

[50] The plaintiff sustained a number of injuries. The most significant of these were not detected at the Bowen Hospital but only found after he had travelled to Darwin a few weeks later. He and his wife travelled to Darwin by car and he says he spent most of the time lying down whilst his wife drove. He had no reason at this time to believe that he had any fractures and I assume that he proceeded upon the basis that the pain and discomfort that he was suffering would improve.

[51] On 26 May 2001, he attended the Palmerston Medical Clinic in Darwin and x-rays were taken. These revealed fractures of the sacrum with injury to the sacro iliac and pubic symphysis, a fracture of the right fibula and a small fracture of the base of the distal phalanx of the middle finger, a fracture of the tuft of the middle finger and a fracture of the distal end of the middle phalanx of the middle finger.

[52] He says that he suffered a good deal of pain from each of these areas of his body and was prescribed painkilling tablets. Whilst he was waiting for some surgery on his ankle in Darwin, he and his wife decided following the birth of their child to return to Gladstone where her parents lived so that she would have someone to help her with the child. He underwent a bone graft operation for the non-union of the fibula at the Gladstone Hospital on 19 May 2002.

[53] When Dr Dickinson saw the plaintiff on behalf of the defendants in May 2002 he says that the plaintiff made no complaints regarding his lower spine and thought that his position overall had improved. The plaintiff acknowledged that there was a period when he thought his position was improving and when he was taking a positive attitude to this trying to convince himself that things were in fact improving and carrying out the exercises he had been given. It is clear however from a later report of Dr Dickinson that the plaintiff denied ever having said that he had no pain from his back when he saw Dr Dickinson in May 2002.

[54] On the same day he saw Dr Dickinson he saw Dr Pentis, an orthopaedic surgeon who the solicitors for the plaintiff had arranged to see him. At this time he complained of pain in his back. I think it improbable he would on the same day have presented with entirely different accounts of his position even if he was, as it seems to me likely to be the case, taking an optimistic view of his condition overall. I accept that he has always had pain in his lower spine as a result of a fracture of the sacrum. I can only assume some miscommunication occurred between the plaintiff and Dr Dickinson on this occasion.

[55] The plaintiff has, I am satisfied, suffered from spinal pain since the time of the accident. In addition to the spinal pain he has suffered pain from time to time in the right ankle, particularly if he is on his feet for any length of time. He suffers occasional shooting pain in his left middle finger. By the end of 2002 the plaintiff appears to have dropped his bundle. He says that he became depressed because he could not care for his family financially. At that time they were living in Gladstone. He says that whilst prior to that time he had been a moderate drinker, he commenced to drink very heavily and to abuse cannabis. He was drinking up to a bottle of rum a day and a carton of beer and to use his words, "writing himself off". He stopped taking painkilling tablets. It would seem that this was his way of coping with the pain he was suffering and the depression he says that he felt at his predicament.

[56] The plaintiff has succeeded in overcoming his abuse of alcohol and drugs and had managed to do so by May 2004.

[57] The family moved to the Sunshine Coast and then in September 2004 back to Gladstone. In June 2005 the family moved to Gympie where the plaintiff's wife runs a jewellery franchise.

[58] I accept the evidence of Dr Richards, psychiatrist that the plaintiff has developed a pain disorder associated with both psychological factors and his general medical condition. The psychological factors, according to the first report of Dr Richards, involved poor pain management with the elaboration of multiple exuberant complaints and impairments and the abuse of analgesic drugs. The complaints which the plaintiff made and continues to make in relation to his back cannot be explained in organic terms and are it seems, psychiatrically determined to a significant degree.

[59] The plaintiff has unconscious dependency needs according to Dr Richards which have left him "a cipher" relying upon his father-in-law for housing, his wife for food, housekeeping and creature comforts, Centrelink for financial support and alcohol, marijuana and other narcotic analgesics for pain management.

[60] As I have said the plaintiff was able to overcome his abuse of alcohol and cannabis (although it seems that he has continued to use both socially) and underwent a rehabilitation program arranged by the insurer through CRS Australia. This was in 2004 but he did not complete this because he says the pain proved too great. He ceased using alcohol and cannabis by May 2004 and he ceased taking anti-depressant tablets in October 2004.

[61] Since February 2004 he has been taking a morphine based drug to manage his pain and continues to do so, now taking MS Contin. He previously took Ordine. This medication carries with it its own risks. Dr Richards thinks that he is substance dependent now for his pain.

[62] Dr Lovell, a psychiatrist, has seen the plaintiff on behalf of the solicitors for the defendant. His assessment was that the plaintiff suffers a chronic adjustment disorder with depressed mood and displays abnormal illness behaviours which if unconscious constitute a chronic pain disorder. Dr Richards does not take issue with the diagnosis of the chronic adjustment disorder but says that this is a condition which would be additional to the pain disorder of which he spoke. There was some dispute between Dr Lovell and Dr Richards as to the PIRS impairment which Dr Richards ascribes to the plaintiff.

[63] A very substantial difference between them exists however as to the plaintiff's earning capacity. Dr Richards thinks that the plaintiff is likely to be permanently unemployable whereas Dr Lovell thinks that he would be capable of light maintenance work. As I have said I accept Dr Richards' diagnosis of his psychiatric condition. I also accept what he says about the plaintiff's incapacity to work.

[64] Dr Pentis assessed the plaintiff's disability arising from the injury to his finger as being about 3 per cent of the loss of efficient use of the arm. He thought a fusion might be able to be performed which would cost in the vicinity of $3,000 - $4,000. The ankle, in his view, had healed but had left him with a residual weakness with some loss of movement and decreased strength. It would, in his view, affect all activities that required use of the ankle, walking, climbing, running, squatting and bending. It would mean that the plaintiff would be best suited to a sedentary occupation. On my assessment of him, he would be unlikely to be employable in a clerical or similar position. There will be further degeneration of the ankle in Dr Pentis's view. In a report of 8 July 2004 he thought that the plaintiff had a disability of about 10 per cent of the right leg and that no further treatment was likely to be required. There were no gross degenerative changes in the joint region.

[65] His view was that the plaintiff had been left with a disability of the lower back as a result of a fracture of the pelvis. He thought that there was both some tenderness and a general weakness of the lower back. He thought that avoidance of heavy lifting and any strenuous recreational and sporting activities was indicated. He assessed the plaintiff as having a 10 per cent loss of the efficient function of the spine as a whole which might degenerate to a 15 per cent loss over the longer term.

[66] In a report of 16 July 2002 he thought that, from an orthopaedic point of view, the plaintiff should avoid heavy work but would be capable of working in a light to moderate position where he could change his position from sitting to standing as required.

[67] Dr Dickinson thought that when he saw the plaintiff in 2002 he had made a good recovery from the various fractures. According to Dr Dickinson, the plaintiff had little, as I have said, in the way of pain or discomfort in the area of the pelvis and there was virtually no impairment arising from this nor from the other fractures.

[68] When he saw him in March 2003 he was complaining of pain in his lower back when leaning over even performing moderate tasks and from time to time the pain would radiate down to the left buttock and left leg. He complained of pain in his ankle, particularly if standing on it for any length of time and pain in his left middle finger.

[69] Dr Dickinson thought that the problems with the left middle finger constituted a disability of about 1 per cent of the body as a whole, that the plaintiff had a disability of about 3 per cent of the right leg as a result of the ankle fracture. He said that he could not detect any disability of the lumbar spine and that the complaints that were made were not physiological in nature and do not constitute any evidence of any abnormality of the spine. He expressed the view that the plaintiff would be fit to work in any capacity for which he was suitably qualified and that he had no orthopaedic disability which would prevent him from working. It seems that he and Dr Pentis did not use the same criteria when expressing percentage loss of function in their reports.

[70] I accept the opinion of Dr Pentis that there is some orthopaedic basis for the complaints which he makes in his lower back but these do not explain the level of complaints which he makes. He has complained of pain in his back since the time of the accident and although as I have said, at one time he appeared to think that some improvement was being made and to adopt the attitude that this was going to continue, he has never been without pain in his lower back. I do not therefore accept the opinion of Dr Dickinson that the plaintiff has no orthopaedic symptoms in his lower back but as I have said it is plain that his complaints in this regard cannot be explained on this basis alone. I accept Dr Richards' opinion that the pain has a significant functional or psychiatric component arising from the pain disorder associated with psychological factors and a general medical condition that he describes.

[71] In court the plaintiff limped and used a walking stick. He said that he had good days and bad days and that at the time he was giving evidence he was in a worse condition than he had been the previous day. He takes his medication first thing in the morning and his evidence is that early in the morning is when he is at his best each day.

[72] A video was shown of the plaintiff taken on 7 April 2005. It shows the plaintiff at about 11.00 am in the morning. He is not entirely visible because of the presence of a vehicle but appears to work for some time on a child's bike. On one occasion he lifts this and twists slightly and his movements to the extent that they can be seen appear free. He acknowledged that he was capable of activities of that kind, particularly of a morning. He says that he was fixing up his daughter's bike at the time.

[73] A little later in the day he is shown walking to and from a shopping area carrying relatively small items of shopping. He had the walking stick in his hand but did not use it and appeared to be walking freely. The plaintiff again acknowledged that he was capable of shopping and carrying small items.

[74] At present he performs some work for his wife which involves doing the banking and some other activities and receives $50 a week from her. He has been doing this since she commenced in June 2005.

[75] The plaintiff, it is clear, has not always been cooperative with those who have been treating him. He failed to attend appointments for treatment such as at the Gladstone Hospital and has not always followed the physiotherapy regimes which had been prescribed to him.

[76] He has had the motivation to successfully tackle his alcohol and drug abuse problems. This may have been spurred by his wife's leaving him and giving him an ultimatum to change.

[77] Dr Richards when he saw him in March 2003 thought that the plaintiff should at that time be encouraged to undertake detoxification and then transfer to a multi-disciplinary pain management unit so that he might undergo a program to manage his pain.

[78] This has not occurred and instead he has been prescribed narcotic drugs to manage his pain, something which on the evidence before me gives rise to some risks of its own. Nonetheless Dr Richards thought that this might be the least worst option to manage his pain at this time.

[79] That the plaintiff should undergo a pain management course was also a view expressed by Dr Lovell as well as by occupational therapists who gave evidence. Dr Richards thought that with the passage of time that had occurred and the plaintiff's history it was unlikely that any long term benefit would be produced from this and that the plaintiff would remain in his view, permanently unemployable. He did not however rule out altogether the possibility of some benefit from such a course.

[80] I am inclined in relation to this aspect of the matter also to accept Dr Richards' opinion.

[81] It was not suggested that the plaintiff had failed in any way to mitigate his loss and as will be obvious it was as a result of seeing his doctor that he was prescribed the morphine based drugs he has been taking.

[82] Nonetheless I think some allowance should be made for the chance that the plaintiff will undergo such a course and derive benefit from it which might result in the plaintiff having an earning capacity for the remainder of his life. He is still a young man and I think he is deeply unhappy with the situation in which he finds himself. He would like to live a more normal existence. Not being the breadwinner of the family and being dependent on his wife is plainly not something which he finds easy to accept.

[83] I do not find satisfying the proposition put to the plaintiff that he had largely recovered from the effects of his injuries by the first part of 2002 and that thereafter "for reasons best known to yourself" decided to adopt the role of an invalid.

[84] I accept that the plaintiff suffers a good deal of pain and discomfort and that this significantly restricts his leisure activities which were in the past focussed upon physical activity such as fishing and riding motorcycles.

[86] I assess the plaintiff's general damages at $60,000. I allow interest at 2 per cent on $30,000 for 4.4 years producing a sum of $2,640.

[87] There is evidence of average weekly earnings and of what a builder's labourer would have earned under the relevant award in the period from the time of the accident until the present. The claim advanced is based on this evidence but with some discounts allowed for. The defendants on the other hand have taken the plaintiff's pre-accident earnings over the three years prior to the accident and averaged these to produce a figure of $256 per week net. Whilst I am satisfied that it is reasonable to make an allowance for the risk that the plaintiff might have continued to have significant periods out of employment in the time between the accident and the present, I also think that there has to be taken into account the fact that there were important factors which would have tended to push him into permanent employment and the receipt of a steady wage. I think that the amount claimed is not unreasonable but making some additional allowance for the factors that I have referred to, I allow $70,000 for past economic loss. Interest at 2.52 per cent on the difference between this sum and the sum of $44,000 received by way of income substitution from Centrelink for 4.4 years produces a figure of $2,882.88.

[88] I allow loss of superannuation on $70,000 at 8 per cent being a figure of $5,600.

[89] So far as future economic loss is concerned, the plaintiff is now 32. He is unskilled and is likely to have worked in an unskilled or semi-skilled capacity relying upon his hands. I think it highly improbable that he would be capable of being retrained into a clerical or managerial position. He has demonstrated in the last few months a minor earning capacity but this is very much incidental to his wife's business and can hardly be treated as indicative of a capacity likely to be exercised in the open market place. I have referred to the fact that I think there is some chance that he will return to the workforce following a successful undertaking of a pain management program but I think the probabilities are, in accordance with what Dr Richards has said, against this.

[90] I also think some allowance has to be made for the risks that the plaintiff, being engaged in demanding physical work might have had to cease work before and even significantly before the age of 65 upon which the calculations before me have been based, whether because he suffered some injury of some kind or developed some problems because of the physical demands upon him. The general contingencies and vicissitudes of life are to be allowed for.

[91] Doing the best I can faced with these imponderables I allow for future economic loss the sum of $250,000. This would reflect a loss of a little over $300 a week for 30 years.

[92] I allow loss of superannuation at 9 per cent. This is $22,500.

[93] There are claims for past and future care and assistance. The plaintiff has plainly had from time to time the need for assistance. At present it is said that the plaintiff's wife performs for about an extra one hour per day tasks that he is not able to do and that he would otherwise have done. These include raking, taking rubbish out, carrying groceries, lifting and carrying and activities with the child. The relevant rate has been agreed upon.

[94] The court's power to award damages for gratuitous care and assistance in a case of this kind is circumscribed by the terms of section 55D(1) of the Motor Accident Insurance Act 1994 (Qld) as amended.

[95] The activities in respect of which the claim is made would seem to be permissible in terms of the above section. There is evidence to support this claim coming from the plaintiff and Helen Coles, an occupational therapist. It is likely his need for assistance will continue but there are many contingencies to be allowed for. A significant allowance should be made for these and the chance he will be better able to manage his pain in future or be prepared and able to undertake at least some of these tasks when he is having better days. I do not overlook the evidence of Sue Campbell, an occupational therapist called for the defendant, that the plaintiff does not require any care and assistance but think it likely that he has in the past and that he does.

[96] I allow in respect of the past 4.4 years the sum of $12,500 and I allow interest at 2.52 per cent on that for that period. The amount for interest then is $1,386.

[97] For any future allowance for care and assistance there has to be taken into account a variety of contingencies. The assessment of damages under this head involves many imponderables.

[98] The claim made should be scaled back substantially and I think that an appropriate allowance would be $25,000.

[99] There is agreement about other heads of damages. These are: (a) past medical expenses - $3,884.55, (b) past medication - $275.00, (c) past travel expenses - $500.00. For future medication I allow $1,250.

[100] The plaintiff has received $3,766.65 by way of refund from the Health Insurance Commission. There will therefore be interest on the difference between the past expenses and that sum namely $892.90. I allow interest at 2.52 per cent on this amount. The interest component then is $22.50.

[101] The total of these sums is $458,440.93. Reducing this by 25 per cent for contributory negligence produces a figure of $343,830.70.

[102] I give judgment for the plaintiff against the defendants in the sum of $343,830.70.