Imbree v McNeilly & Anor

LEGISLATION CITED : Motor Accidents (Compensation) Act 1979, Northern Territory Motor Accidents (Compensation) Amendment Act 2000, Northern Territory

Breavington v Godleman (1988-1989) 169 CLR 41 Boyd v Boynton & Ors 28 NTR 1 Cook v Cook (1986) 162 CLR 376 Godhino v Willard 51 NTR 31 John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503 Joslyn v Berryman (2003) 214 CLR 552 CASES CITED : Marsland v Andjelic (1993) 31 NSWLR 162 Mathews v McCullock of Australia Pty Limited (1973) 2 NSWLR 331 MBP (SA) Pty Limited v Gogic (1990-1991) 171 CLR 657 Nettleship v Western (1971) 2 QB 691 Perrett v Robinson (1988) 169 CLR 172 Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALR 529 Southwell v Takashi Tomomoto, Bridgestone Australia [1994] NTSC 105

Paul Anthony Imbree (Plaintiff) PARTIES : Jesse McNeilly (1st Defendant) Qantas Airways Limited (2nd Defendant)

COUNSEL : Dr. A. Morrison SC/A. Stone (Plaintiff) K. Rewell SC/M. Cleary (Defendants)

SOLICITORS : Turner Whelan (Plaintiff) TL Lawyers (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20055/05 PAUL ANTHONY IMBREE v JESSE McNEILLY & ANOR

1 HIS HONOUR: Paul Anthony Imbree brings these proceedings against Jesse McNeilly and Qantas Airways Limited, claiming damages for negligence. On 3 April 2002 the plaintiff was a front seat passenger in a motor vehicle being driven by the first defendant, which vehicle was owned by the second defendant. The first defendant was driving that vehicle in an easterly direction on Larapinta Drive towards Hermannsburg in the Northern Territory when he lost control of the vehicle and it overturned. The plaintiff sustained injury to the cervical spine resulting in tetraplegia.

2 At the time of the accident the plaintiff was a contracts manager and purchasing officer with the second defendant and he was provided with the vehicle involved in the accident as part of his remuneration package. With two of his sons, he was touring in the Northern Territory. The first defendant was a friend of the plaintiff's son, Paul, and with Ben Watson, a friend of the plaintiff, he joined the Imbrees in the touring party.

3 The first defendant had no driving licence nor did he have a learner's permit. He was, however, driving the second defendant's vehicle when it overturned. There has been a strenuous contest on the issue of liability, and apart from denying negligence the defendants have pleaded the voluntary assumption of risk, participation in a joint illegal enterprise and contributory negligence.

4 At the outset I propose to undertake a brief review of the accounts of the accident given by the occupants of the vehicle.

5 The vehicle was a GXL model Toyota Landcruiser station wagon registered in New South Wales, QTX 876. The party was proceeding in it in an easterly direction from Kings Canyon towards Hermannsburg, and the accident happened some eleven kilometres west of Hermannsburg. Driving duties were being shared during the passage from Kings Canyon, as, indeed, they had been throughout the entire excursion. I shall examine more closely the extent of the driving undertaken by the first defendant shortly, but according to the plaintiff the first defendant was driving on Larapinta Drive for some forty minutes before the accident and the plaintiff was seated beside him in the front of the Landcruiser.

6 The plaintiff described the road as "very wide", providing one lane of traffic in each direction. He said there was also a graded area on the sides of the roadway and the vegetation was well away from the road. The plaintiff's observation was that the vehicle was maintaining a steady course as it had done for forty minutes. His first sensation of something untoward happening was when the vehicle veered "fairly sharply to the right" and it headed towards the bushland on the right hand side of the road. The plaintiff said that he reached over to try to pull the steering wheel back, but thought better of it and was yelling out to the first defendant to brake. He said that the vehicle went into the graded area beside the right hand lane and that the first defendant manoeuvred the vehicle back on to the road to the left. He described this as a sharp manoeuvre, probably at forty-five degrees. He said that the vehicle seemed to be under acceleration again when it rolled over on to the driver's side. The plaintiff's estimate of the speed at the time the vehicle rolled was seventy kilometres per hour.

7 He said that before the accident happened he noticed a piece of black tyre on the road. It would have been six to eight inches long and four inches wide, and he saw it when the vehicle was 300 metres away from it. According to the plaintiff, shredded bits of tyres were regularly encountered on the outback roads.

8 Reece Imbree was in year ten at the time of the accident and was sleeping in the back of the vehicle at the time of the accident. His evidence does not assist.

9 Paul Imbree had driven five times during the holiday, the first stretch being after the party left Bourke on the way to the Northern Territory. He drove in Larapinta Drive immediately before the first defendant took over, and he said he had no difficulties in doing so. Nor did he notice the first defendant have any difficulty before the accident happened. Paul Imbree said that he saw the tyre in the centre of the road and the vehicle appeared to be going to the left of it but then moved to the right and started losing traction. It then turned left at right angles after the rear wheels had reached the edge of the road. He was unable to say whether the brakes were applied before the Landcruiser rolled over, the driver's side hitting the ground first.

10 In cross examination Paul Imbree gave the following answers to the following questions: "Q. Your recollection of the movement of the vehicle immediately before the accident, is that it first moved slightly to the left. Is that your recollection? A. That's right.

Q. Then swerved sharply to the right? A. I want to make a difference between how sharp it turned. Firstly when you're describing to the right and then how I describe as the major sharp turn to the left where the rear wheels hit the soft sand on the right-hand side of the road, it was much sharper, that left turn.

Q. You said I think, that you first moved to the left at least to some degree? A. Yes that's right.

Q. You felt the vehicle lose traction? A. That's right.

Q. What do you mean by lose traction? A. The wheels and steering didn't seem to be consistent with what was happening before.

Q. Did it begin to fishtail. Is that what you mean by losing traction? A. Yes, the car did fishtail.

Q. Once that happened, the vehicle then swerved - let's not worry about the degree for the moment - to the right. Is that correct? A. Say that again.

Q. After the vehicle lost traction on the left-hand side of the road, you felt the vehicle swerve to the right? A. Well the vehicle was going to the left and as it turned right, that's where I felt it lost traction.

Q. The vehicle went right to the extent that it went right across the full width of the road surface? A. That's right. The rear wheels did touch the loose surface to the right-hand side of the road.

Q. When the wheels of the vehicle touched to loose surface on the right of the road, did you again feel a loss of traction? A. That's right.

Q. Again some sort of fishtailing effect? A. Yes.

Q. Or at least you felt that one or more of the wheels was not gripping any surface? A. Yes, the rear wheels.

Q. Then the vehicle swerved sharply to the left. Is that right? A. That's right.

Q. Then rolled on to its driver's side? A. That's right.

Q. So the last movement was a sharp swerve to the left and then an overturn on to the driver's side? A. That's right."

11 The plaintiff's friend, Ben Watson, was sitting in the back seat of the car when the accident happened. He said he could not recall anything significant about the way in which the first defendant was driving the vehicle. As to the accident itself, Mr Watson said (T 190): "All I can remember is the vehicle swerving, the vehicle rolling and then it coming to a stop."

12 He thought that the vehicle swerved initially to the right but could not recall whether it swerved in a different direction after that, and as to the speed of the vehicle, he recalled it being slow.

13 It was the recollection of the first defendant that he was driving the Landcruiser "for around half an hour or so" when the accident happened, and was travelling at seventy to eighty kilometres per hour on Larapinta Drive. He said there were corrugations in the roadway. He noticed the shredded tyre on the road when he was approximately fifty metres from it, and he steered the vehicle to the left when he was about thirty metres from it. He said he could feel the vehicle digging into the sand and by this time the vehicle had passed the shredded tyre. He tried to correct the vehicle to steer off to the right, and he accelerated. He described what happened then (T 271): "Q. What path did the vehicle then follow? A. The vehicle reacted obviously to my judgments in sort of a more radical or quicker way than I expected, being swerving to the right. I think at that stage because I've panicked, I've accelerated the vehicle. It swerved off to the right like I said. Pretty much as soon as it swerved off to the right, I noticed there was a ditch in front of me being the right-hand side of the road. Once again as soon as I saw the ditch, I've again corrected the vehicle to the left, kept accelerating at that time.

Q. How hard did you steer back to the left when you saw the ditch on the right-hand side of the road approaching? A. Quite sharply because at that stage I was panicking because the vehicle actually swerved - was about to swerve off the road, so I've panicked, accelerated the vehicle and turned the car to correct it.

Q. What happened when you turned the car to the left in an effort to correct it? A. As soon as I turned the car to the left, the car swerved quite sharply, or the back end of the car actually slid out over the corrugation, and Paul senior was yelling something at me. I can't actually remember what it was, and then at that stage the vehicle rolled."

14 I accept that each of the witnesses whose evidence I have briefly reviewed endeavoured to give a truthful and honest account as to what happened leading up to the accident. I am satisfied that it was the first defendant who was driving the Landcruiser when it overturned, and I am satisfied that the accident happened after the first defendant had steered the vehicle to the left side of the road and that the vehicle thereafter crossed to the right hand edge of the road, and then returned sharply towards the centre of the road under acceleration, overturning in the process.

15 John Baum was a police officer with the Northern Territory Police Service at the time of the accident and was stationed at Hermannsburg. He attended the accident scene on the evening of 3 April 2002, and he took photos at the scene (see Exhibit E). He took six photographs looking east towards Alice Springs and then a series of photographs looking to the west. He observed the tyre track of the vehicle and he marked copies of the photos appearing at 82-85 of Exhibit E locating the relevant tyre marks on those copy photos, which became Exhibit 8. From the markings on the roadway, it appeared to Mr Baum that the vehicle had passed by the shredded tyre debris before turning towards the right. Mr Baum gave these answers to these questions (T 298-299): "Q. Were you able to establish by your examination of the scene in the photographs that the first lateral movement of the vehicle, that is the first steering manoeuvre of the vehicle, was in fact to the left? A. From the tyre marks it appears that the vehicle has moved to the left. It is a very gradual movement. Though whether it was deliberate or uncontrolled, I could not say just from looking at the marks.

Q. Having made the tyre track that you indicated in photograph 82 on the softer material, your analysis was that the vehicle swerved to the right, is that right? A. Yes, the vehicle has made a right-hand side steering manoeuvre.

Q. And has proceeded across the roadway onto the soft material on the right-hand side? A. Correct.

Q. And you photographed the tracks of the vehicle as it went through the soft material on the right-hand side? A. Yes.

Q. And it went back left? A. Yes, very hard left-hand steering manoeuvre was input.

Q. Was there more turning after that or did the vehicle turn whilst it was still turning left? A. From the severe left-hand side steering input, the vehicle went broadside as we described before sliding sideways. The wheels have gripped into the ground and the vehicle has overturned and has come to its final rest, so there were no more steering inputs after that."

16 I accept the evidence which Mr Baum gave. His observations and conclusions appear to me to be consistent with the description that the first defendant gave concerning the circumstances in which the accident occurred.

17 I am satisfied that the accident occurred on a straight section of roadway in fine and dry conditions. Proceeding east, the first defendant would have had the sun behind him, and I am satisfied would have had a clear view of the roadway in front of him for no less than 300 metres. When Mr Wingrove attended the scene on 6 January 2006 he measured the road width as varying between eleven and twelve metres, with a slight incline to the east. Whilst no doubt the condition of the road surface would vary from time to time depending upon when it had last been graded, it is probable that the width of the road and the slight incline to the east observed by Mr Wingrove would have been more or less the same as at the date of the plaintiff's accident.

18 What was the condition of the road surface when the accident happened? Exhibit 7 reveals that what the records describe as a "full maintenance grade 1 pass" was carried out on 8 August 2001. The road surface was attended to again in February 2002.

19 As the Landcruiser proceeded east towards Hermannsburg, I am satisfied that it passed road signs beside the northern edge of the roadway which recorded these messages: "BEWARE LOOSE SURFACE DUST CORRUGATIONS" (Exhibit 2)

and "GRAVEL ROAD CAREFUL DRIVING TECHNIQUES ARE ADVISED" (Exhibit 4)

20 The notice depicted in Exhibit 2 was located ten kilometres west of the accident scene and the notice recorded in Exhibit 4 was located 10.3 kilometres west of the accident scene.

21 The plaintiff gave evidence that the signs depicted appeared typically on outback roads. Mr Baum, when asked about the signs (T 304), agreed that signs of that type were to be found "quite commonly on similar roads all around the Alice Springs area". Mr Baum's attention was directed to Exhibit 3, depicting a road sign beside a paved section. He was then asked these questions and gave these answers (T 288-289): "Q. Incidentally, from your experience on those, on that, on Larapinta Drive, does each of those signs accurately depict the state of the roadway to come beyond the sign? A. In my opinion they all depict the entire road. They're just general warnings, you know, look out for what's coming sort of thing.

HIS HONOUR: Q. They're signs that could have been placed anywhere along the road just as relevantly as where they are? A. Yes, very much so. They're at the beginning of the unsealed section at both ends of the road and then periodically through the whole stretch."

22 The other former Northern Territory Police Force officer, Andrew Craig, gave evidence consistent with that given by Mr Baum. Mr Craig agreed (at T 311) that signs like those depicted were to be found on roads other than Larapinta Drive.

23 According to Mr Baum, Larapinta Drive is a major tourist road (T 300). Unlike some other roads in the area, Larapinta Drive was not posted as being unsuitable for two wheel drive vehicles and the normal unrestricted speed limit applied. When taken to the photographs appearing in Exhibit E, Mr Baum considered that the section of roadway where the accident occurred was in reasonably good condition (T 301). As to the corrugations, he said he had seen worse. He was asked these questions and gave these answers (T 301): "Q. Do you agree that that section of Larapinta Drive at the time was in good condition? A. I have seen it better and I have seen it worse.

Q. Indeed that was one of the better sections of Larapinta, was it not, the area where the accident occurred? A. That would be a fair comment. It is fairly standard for the whole length of Larapinta Drive."

24 Mr Baum used the road regularly prior to the plaintiff's accident and he said he travelled along it between 100 and 120 kilometres per hour.

25 Mr Baum said that the dust at the side of the road was not bull dust, and he agreed, when his attention was drawn to the photographs in evidence, that the dust did not appear to be unduly deep.

26 Mr Baum's attention was drawn to a statement which he made on 13 November 2002 in which he was asked these questions and gave these answers (T 304-305): "Q. Would you agree that you said in that statement that it was a fairly good gravel surface? A. I don't have a copy of my statement.

Q. (Shown statement). Read that to yourself? A. Yes.

Q. Would you agree that you had described it as a fairly good gravel surface? A. Yes.

Q. You had also said it was heavily corrugated due to its regular traffic? A. Yes.

Q. But this particular section was not heavily corrugated? A. The corrugations are present. It is heavier than other bits, not as heavy as some bits.

Q. The section where the accident occurred was not heavily corrugated, do you agree with that? A. Not compared to other sections, I would agree.

Q. In general where this accident occurred the road was a good gravel surface? A. As far as gravel road goes I think it is fairly good, yes."

27 I accept as reliable the evidence which Mr Baum gave concerning the condition of the roadway and as reviewed above.

28 Mr Baum's evidence as to the condition of the road does not, of course, stand alone, and I am mindful as to what Mr Ristell said. Mr Ristell was qualified to give evidence on behalf of the defendants, and is a driving instructor whose field of expertise is the training of drivers in four wheel drive vehicles. He attended the scene of the accident on three successive days in July 2005. He described the road (T 361) as "extremely rough, corrugations, bull dust, potholes, with a number of tyre remnants on the sides of the road that bear testimony to the fact that it is very rough surface. It is typical of the roads in that part of the world around Alice Springs… It is a very challenging road to drive on. It certainly does require additional skills."

Mr Ristell went on to say: "I think most city drivers would be shocked how rough the conditions are, how severe the corrugations, potholes and bull dust is. Without warning there are very few signs which indicate what is coming up."

29 He considered it would be difficult for an inexperienced driver to appreciate what the vehicle might do when it had to cross corrugations in the road surface (T 362).

30 Mr Wingrove, who I accept was an experienced dirt road driver, did not consider the road surface of Larapinta Drive to be "a bad road by any means" at the time that he drove on it. He rather considered it to be "a good quality road" (T 261). He recognised, however, that the road could be expected to deteriorate between one grade and another and he was not aware how long it was before his inspection that the road had last been graded, but it emerged in evidence that the road was attended to within a month of his inspection in December 2005.

31 Mr Craig said that he drove along Larapinta Drive when stationed in Alice Springs approximately twelve times. That was in the period between 1995 and 2005. In that period, Mr Craig said that the road condition varied from time to time and along the road itself. He said there were sections where the road could be quite rough on occasions and quite reasonable on occasions (T 307).

32 The plaintiff was interviewed by police at Royal Adelaide Hospital on 23 April 2002 and at that time he described the road as "very rough" and that there were "corrugations all the way along it". He invited police attention to the corrugations when investigating the accident. However, the plaintiff said that he did not himself observe corrugations of significance that would have caused the accident (T 66).

33 Paul Imbree said that when he was driving along Larapinta Drive before the first defendant took his turn the condition of the road was similar to that shown in the photographs in Exhibit E. He said there were no significant creeks on the road and the road was flat. He experienced no difficulties in driving on it (T 171).

34 Ben Watson, when shown the photograph on p 81 of Exhibit E, said that the road was much the same along Larapinta Drive and that there was nothing in the road surface as the vehicle travelled along it that caused him any concern.

35 The first defendant described the road surface in this passage of his evidence (T 270): "Q. How would you describe the surface of the road as you drove along it. How did it feel to drive on? A. The surface of the road was fairly good being very long and straight for the whole time I was driving. The surface of the road was generally - it was a wash board sort of surface to it.

Q. What do you mean by a wash board surface? A. It was sort of just uneven, sort of up and down.

Q. Were there corrugations? A. Yes, sorry corrugations.

Q. Is that what you mean by wash board? A. Corrugations being in the centre of the road. It was a fairly good road to drive on, but the slower I went, the more you'd sort of notice the corrugation in the traction of the vehicle.

Q. What did you notice about the corrugations in terms of traction? A. There was no problem with traction being on the corrugation. You could just feel it in the steering and just on the surface of the vehicle the slower the vehicle went."

36 The photographs in Exhibit E and Exhibit B depict the road surface as at the date of the accident, and, as previously observed, I consider Mr Baum's evidence about the road surface at the time of the accident to be reliable.

37 Why did this accident happen? I referred earlier to the first defendant's account as to what happened. Essentially, I accept the first defendant's account, although he was probably mistaken in his perception that the vehicle dug into the sand after he moved to the left to avoid the tyre debris. The perception as to what happened to the near side tyres is not borne out by consideration of the photographs in Exhibit 8. What seems to have been critical is what happened after the first defendant had gone to the edge on the right hand side of the roadway, and the sharp turn to the left from there and the continuing acceleration proved critical.

38 I find myself assisted on this question of causation by evidence that Mr Wingrove gave. In his report dated 31 January 2006, Mr Wingrove commented upon the significance of the acceleration at the time that the first defendant steered to the left since this caused the vehicle to oversteer. In cross examination Mr Wingrove gave evidence as follows (T 255-256): "Q. I think it's your opinion that it wasn't the condition of the road surface that caused this collision to occur, but the various errors made by Mr McNeilly. A. The one error, principally one error made by him.

HIS HONOUR: Q. Which one are you referring to? A. The acceleration. I don't believe that the loose material at the edge of the road, and I don't think he made all that sudden steer to the left, certainly the physical evidence doesn't indicate that that took place, but the acceleration would have been the thing that caused the vehicle to in effect oversteer. Q. But of course what put him in that position in the first place was his failure to see the debris on the road early enough? A. Yes, that, but - how can I put it - the accident still need not necessarily happen by failing to see that and failing and doing the right turn. It's the subsequent going into the material, in the loose surface, I don't think that was a significant factor, and making the left turn was all that significant, except that when he applied the acceleration the rate of the turn - now I'll try to explain that. If you look at the accident police photos it shows the vehicle actually started, starting to point back from the direction from whence it had come. It shows the steer wheels on the vehicle almost in a parallel position. Now, at some stage if he steered to the right and then steered to the left, the vehicle had to be parallel with the edge of the road. Now, to get it to turn (witness indicating) so that it is perpendicular to the road in half of the width of the road that's almost at full lock for that type of vehicle. Now to get it into full lock the driver would of had to come from the right steer to the left steer and get it into the full lock, which would have required one more full circle of the steering wheel. Now, I don't believe a driver of Mr McNeilly's experience could have got that wheel around in that sort of a lock quick enough in that sort of distance. So the only way the vehicle could have actually spun around past the perpendicular and further was the acceleration that brought the back of the vehicle around.

Q. And of course, an experienced driver would know not to accelerate when you find yourself in difficulty like that but to do exactly the opposite, to let speed off. A. It's the first thing you do, you get into loose material and the vehicle starts to drift you take your foot off the accelerator.

Q. That's something from your experience you know to do, the opposite, to speed up, is inviting disaster? A. You do that in any vehicle. If you accelerate in a turn you are going to do one of two things: you are going to roll the vehicle or roll the vehicle and/or oversteer the vehicle.

Q. And you've either got to be told that to know it or learn it by unfortunate experience, is that right? A. Well, that's part of the learning process. When you start to be a learner you learn these things and you're instructed in these things and unfortunately I think the bulk of the learning is from experience. Certainly I didn't learn from instructions from my father.

Q. You see, in fact the succession of errors that Mr McNeilly made bred on each other didn't they? A. Yes, well the accident could not happen if he just simply steered to the right and went off into the paddock.

Q. Well, firstly the accident wouldn't have happened in all probability if he had seen the object in the road 300 metres ahead? A. Yes, straddled it or stopped the vehicle.

Q. Because there would have been a range of fairly straightforward options available to him? A. Yes, I agree with that.

Q. Secondly, if having finally seen the debris on the roadway he had remained calm and simply driven around it, over it, or straddled it, the accident probably wouldn't have happened? A. Yes.

Q. Thirdly, if he hadn't moved to the left sufficient to take him onto the soft edge of the roadway but had moved only a little to the left he could have driven ahead and the accident probably wouldn't have happened?

A. Even if he west to the left, to the near side of the road to dodge it, had he not made a sudden steer I don't believe the soft edges of the road would have caused him to lose control. I went through that exercise and I didn't find any difficulty in it. "

39 I accept that it was the sharp change of direction to the left after the first defendant had crossed to the incorrect side of the road and to the edge of it which, when coupled with the acceleration, caused the vehicle to move into a position where it overturned.

40 Was the first defendant negligent in the circumstances of the accident?

41 It was submitted on behalf of the defendants that the first defendant owed to the plaintiff no duty of care in the circumstances of this case having regard in particular to the following matters:

(a) the fact that the plaintiff allowed the first defendant to drive the vehicle, knowing he was unlicensed and inexperienced;

(b) the plaintiff allowed the first defendant to drive on a roadway which was unsuitable;

(c) the plaintiff allowed the first defendant to drive the vehicle notwithstanding the road signs to which reference has been made;

(d) the plaintiff allowed the first defendant to drive in circumstances when he knew that the first defendant's ability to deal with an obstruction on the roadway was compromised by his lack of training, skill and experience;

(e) the plaintiff knew that the first defendant required careful and continuous instruction but failed to give it.

42 In these circumstances it was submitted that in allowing the first defendant to drive the plaintiff denied himself the benefit of a duty of care.

43 I am not attracted by the defendants' submissions to the above effect. I will return to consider the various matters raised presently. However, in my opinion, it does not follow in the circumstances to which Mr Rewell referred that the first defendant owed no duty of care to the plaintiff; however, the circumstances that the first defendant was unlicensed, without a permit and of limited experience do bear upon the standard of care required of him.

44 Dr Morrison submitted that the decision of the High Court in Cook v Cook (1986) 162 CLR 376 was no longer to be regarded as the law. He submitted that the English position in Nettleship v Western (1971) 2 QB 691 ought to be followed. He submitted that it was undesirable that there be a sliding scale of duties of care and corresponding standards of care, and referred to the comments of Professor Fleming on Cook v Cook in the 9th edition of the Law of Torts (at 341-342).

45 I note Dr Morrison's submission but I consider that I am obliged to follow Cook v Cook, and that the principles to be found in that decision are directly in point. In Cook the driver was neither experienced nor the holder of a licence or a permit but was invited by the passenger to drive the car. When seeking to avoid a parked vehicle, the driver accelerated and lost control of the car. In the result it mounted the footpath and crashed into a concrete pole. The injured passenger failed at first instance but an appeal was allowed with a finding of contributory negligence. The High Court dismissed the further appeal.

46 In their joint judgment in Cook, Mason, Wilson, Deane and Dawson JJ, in a passage commencing at 382, stated principles which are conveniently summarised in the headnote to the report: "(1) Where the plaintiff as passenger has been injured in a vehicle driven by the defendant, there is ordinarily a relationship of proximity of driver and passenger, and the standard of care is that reasonably to be expected of an experienced, competent driver. The standard is objective and impersonal, not being modified or extended by the driving history, ability or idiosyncrasy of the particular driver. (2) Exceptional facts may alter the relationship between a driver and a passenger so as to import a different standard of care, adjusted to the relationship. Such a case is that of driving instructor and pupil, where the standard remains objective but is adjusted to fit the special relationship. (3) The onus of establishing facts founding a relationship of such a special or different category as to import a standard of care other than that of a qualified and competent driver falls on the party asserting it. (4) Actions fairly to be seen as the result of known inexperience or lack of qualification in the driving of a vehicle, rather than as having been caused by superimposed or independent carelessness, do not of themselves, constitute a breach of duty owed by driver to passenger."

47 Their Honours considered there was nevertheless a breach of the duty of care which the driver owed to her passenger. Their Honours said (at 389): "With some hesitation, we have come to the same conclusion as that which was reached by Johnston J That is that the appellant's action in deliberately accelerating so as to avoid an object in the path of the vehicle she was driving involved, in the absence of any suggestion of skidding and in circumstances where she was deliberately steering the car off the roadway, an element of carelessness over and above what could be attributed merely to inexperience. It has not been disputed that that acceleration was a cause of the accident and was largely responsible for the severity of the impact when the vehicle came into contact with the stobie pole and the respondent was thrown against the windscreen. Any such superimposed carelessness on the part of the appellant constituted a breach of the duty of care which she owed to the respondent. That being so, it seems to us that the conclusion reached by the majority of the Full Court of the Supreme Court was correct on the particular facts of the case..."

48 Contrary to the defendants' submission, I do not accept that the application of the principles to be found in Cook v Cook would lead to the conclusion that there was no breach of duty in the present case. It seems to me that in accelerating as he did in conjunction with steering sharply back towards the centre of the road from the southern edge of it, the first defendant behaved with carelessness over and above what could be attributed merely to inexperience. I accept the first defendant's evidence that he had been instructed by his grandmother in a lesson given to him before this accident that he should not attempt to accelerate out of a problem (T 284). The first defendant also agreed in cross examination (T 284) that common sense would have suggested that the thing to do was to take his foot off the accelerator.

49 It seems to me that just as the deliberate acceleration in Cook v Cook introduced an element of carelessness over and above what could be attributed merely to inexperience, so, too, does the first defendant's deliberate acceleration in this case.

50 I am satisfied that the first defendant was negligent and that his negligence was causative of the accident.

51 I consider that the defendants' reliance upon the defence of volenti non fit injuria is misplaced. I am not persuaded that the plaintiff in permitting the first defendant to drive the Landcruiser voluntarily assumed the risk of injury. In order for the volenti defence to succeed, it is necessary that the plaintiff knew the facts relied upon as constituting the danger and also that he fully appreciated the danger inherent in such facts. The defence of contributory negligence will, of course, require discrete consideration presently, but I am not persuaded that the plaintiff ought be treated as having accepted the risk which here materialised. On the contrary, I accept the evidence which the plaintiff gave in cross examination (T 117): "Q. You see, by putting a driver in charge whose standard of driving was much less than your own, you knew that you were creating a risk of accident or injury that wouldn't exist if you were driving yourself, didn't you? A. No, I didn't think that that was a sufficient differential in risk that would warrant that conclusion.

Q. You are suggesting that, are you, that you didn't think there was any more risk in having Jesse drive than in driving yourself. Is that what you are suggesting? A. Sir, if I thought that he was any risk in that sense, with my children in the car, I would not have permitted him to drive at all. The risk wasn't there in the sense that you are suggesting. There was nothing additional about the way he was driving that caused any additional risk."

52 The defendants have submitted that the plaintiff ought not to succeed because of his participation in an illegal enterprise. The plaintiff was aware that the first defendant was unlicensed and he acknowledged in cross examination that he knew it was illegal to put the first defendant in control of the vehicle (T 82). He also agreed that one of the reasons why he did not let the plaintiff drive on sealed roads was to minimise the risk of detection by police (T 81). Mr Rewell submitted that the illegal activity in which the first defendant engaged with the permission of the plaintiff presented a greater challenge to the first defendant's driving skills because he was driving on an unsealed road. In the circumstances it was submitted the plaintiff ought to be deprived of an award of damages on the grounds of public policy. I do not accept that submission.

53 In Mathews v McCullock of Australia Pty Limited (1973) 2 NSWLR 331, a decision to which Mr Rewell referred in his written submissions, the plaintiff was injured when riding a motorcycle whilst disqualified from holding a licence. His injury was sustained when his cycle was struck from behind by another vehicle. The plaintiff's illegal behaviour in riding his cycle without a licence did not preclude him from recovering damages. In Cook v Cook (supra), the plaintiff allowed the inexperienced driver, who held neither a licence nor a permit, to drive the motor vehicle. The unlawful nature of the conduct in the course of which the plaintiff was injured did not preclude an award of damages in that case.

54 The two cases to which I have referred illustrate that in Australia the fact that the plaintiff may have been acting illegally at the time injury was sustained is not of itself a circumstance that defeats a claim for damages. I do not consider that public policy requires that the plaintiff be deprived of any entitlement to damages in circumstances in which he has been gravely injured in consequence of the negligence of the driver of the vehicle in which he was travelling.

55 I consider that the plaintiff has proved an entitlement to damages by reason of the negligence of the first defendant, but this brings me to a consideration of the defence of contributory negligence.

56 It has been submitted on behalf of the defendants that even if the plaintiff is found to be entitled to succeed, he must have been guilty of "a high degree" of contributory negligence:

(i) in permitting the first defendant to drive at all, having regard to his limited skills and experience;

(ii) in permitting the first defendant to drive on Larapinta Drive;

(iii) in failing to provide any instruction, either in proactive or reactive driving skills.

57 Mr Rewell correctly submitted that the test of contributory negligence is, of course, an objective one: see Joslyn v Berryman (2003) 214 CLR 552, esp per McHugh J at 564 [32] and per Gummow and Callinan JJ at 575 [70].

58 The first defendant was at the time of the accident sixteen years of age. He had never held a driver's permit. He failed in an attempt to gain a permit two months before the accident because he was unable to produce a birth certificate. Five days before the trip began he failed to obtain a permit when he failed the theory test at the RTA office at Miranda.

59 The first defendant had gained some driving experience with the help of his grandparents. He had four or five lessons on a Land Rover in the sand dunes at Kurnell. Each lesson was of thirty to forty-five minutes duration, and the maximum speed he was allowed to travel was fifty kilometres per hour.

60 In addition to the lessons on the Land Rover, the first defendant had had four or five lessons driving a Volvo at the Woronora Cemetery.

61 The plaintiff, of course, was aware that the first defendant had never held a learner's permit and the plaintiff had never seen him drive before the party left Sydney. He said he understood from discussion with his own son that the first defendant drove regularly, and his son had pointed out to the plaintiff the Land Rover "Jesse drives" (T 41).

62 I accept that the plaintiff did not allow the first defendant to drive before the party left Bourke because to have allowed him to drive on sealed roads would have involved the risk of detection by the police and would also have exposed the first defendant to driving in greater traffic than on the dirt roads where the first defendant's experience on this particular trip commenced.

63 I accept that the first defendant drove on four occasions before the party reached Larapinta Drive. The first occasion was after the party left Bourke and he drove then for thirty or forty minutes. The second and third occasions were on the Simpson Desert, and on each of these occasions again he drove for thirty to forty minutes. The first defendant drove again in the vicinity of the Finke River; once again he drove for thirty to forty minutes.

64 According to the first defendant, the plaintiff instructed him, as he did his own son, that he was not to travel at more than seventy to eighty kilometres per hour. I accept that that instruction was given and that it was obeyed. The first defendant said that the conditions encountered beyond Bourke were similar to those on Larapinta Drive. He encountered corrugation and potholes and puddles and dips but he said he was able to deal with these conditions without difficulty. When driving in the Simpson Desert, the first defendant said the plaintiff instructed him where to position the vehicle, and the tyre pressure was lowered for the Simpson Desert conditions. When he drove again for the fourth time in the Finke River vicinity, according to the first defendant the road conditions were poorer there than on Larapinta Drive. There were deeper corrugations and potholes there. However, he said that he had no difficulty with that driving.

65 Apart from his own driving experience on the trip, the first defendant said that he watched his friend, Paul Imbree, when he was driving.

66 According to the first defendant, the plaintiff told him at various stages where he was to drive, and he did what he was told.

67 I accept the first defendant's account of the extent of the driving experience he had on this trip, where he had it and what instruction he was given.

68 Ben Watson entertained no concern about the first defendant's driving before the accident, and neither did Paul Imbree.

69 The plaintiff recounted little by way of instruction given to the first defendant apart from the imposition of the speed limit already noted. The plaintiff said he told the first defendant where to place his hands on the steering wheel, although the plaintiff did not detail instruction given as to the course the first defendant should set at any particular time. I do accept that instruction was given as described by the first defendant.

70 The plaintiff said that in the first driving spell that the first defendant had he told him where to place his hands on the steering wheel but thereafter on that occasion the first defendant drove without further instruction. In the Simpson Desert, according to the plaintiff, the first defendant drove safely and steered a good course. In the vicinity of the Finke River, the plaintiff said that the first defendant drove safely and comfortably.

71 I accept that nothing untoward occurred on any of the occasions that the first defendant drove the LandCruiser before he took the wheel on Larapinta Drive. I accept that up until that point of time he responded to such instruction as was given. I also accept that nothing untoward happened until immediately before the accident.

72 The plaintiff had no precise information as to the first defendant's previous driving experience, which I accept was as described by the first defendant. The plaintiff ought to have made it his business to find out details of the first defendant's prior experience such as were described by the first defendant in his evidence.

73 I am not persuaded that the plaintiff failed to exercise reasonable care for his own safety by permitting the first defendant to drive at all. The first defendant had to build on the experience his grandparents had given him by some means or other if he was to become an experienced driver, and the plaintiff, himself an experienced driver, had the opportunity to observe and assess the first defendant for a period of no less than two hours before deciding to allow the first defendant to drive in Larapinta Drive.

74 Having earlier decided to allow the first defendant to drive, it seems to me that the exercise of due care required of the plaintiff that he afford reasonable instruction, and this, of course, applied not only to the four episodes of driving experience undertaken prior to reaching Larapinta Drive, but also to the driving in Larapinta Drive.

75 Was the plaintiff negligent in allowing the first defendant to drive in Larapinta Drive? In Mr Ristell's opinion, having regard to his own expertise as a driving instructor, Larapinta Drive was an inappropriate road upon which to teach an inexperienced driver.

76 Mr Ristell was asked these questions and gave these answers (T 365-366): "Q. Have you had experience in teaching young drivers to drive four-wheel drive motor vehicles? A. Yes, extensive experience in that.

Q. Do you regard Larapinta Drive as an appropriate road surface on which to teach young, inexperienced drivers to drive four-wheel drives? A. At some stage of their training that sort of thing may be used but not early on and not at high speed.

Q. Firstly, to deal with the expression early on, if this boy had had a total of less than eight hours driving experience in all on any surface, would that be sufficient to instruct him on Larapinta Drive? A. Definitely not.

Q. If his offroad experience, as I have detailed to you earlier, the sand dunes at Kurnell, sand on the Simpson desert and two other sections of rough roadway, would that be sufficient being less than six hours in all, probably less than five, to warrant him being taught or allowed to drive on Larapinta Drive? A. No, that experience would be virtually irrelevant."

77 Mr Ristell emphasised the importance of instruction and opined that a speed of eighty kilometres per hour on Larapinta Drive was too high a speed for a person of the first defendant's inexperience. He gave this evidence (T 381): "Q. Leaving aside for a moment the suitability or unsuitability of Larapinta Drive per se, was the experience that Jesse McNeilly had obtained either off-road or on road, in your view, sufficient for him to be permitted to drive along Larapinta Drive at a speed of 80 kilometres an hour.

Q. Knowing what you now know of the experience that Mr McNeilly had in off-road, and indeed, in on-road conditions, was a direction that he be permitted to drive at up to 80 kilometres an hour, an appropriate speed for off-road driving on his part at that stage of his learning career? A. Definitely not.

Q. In addition to matters concerning speed, when a driver is taken off-road for the development of experiential skills, is instruction a part of the process of obtaining those skills safely? A. Absolutely, extensive instruction.

Q. Knowing what you know of Mr McNeilly's off-road skills before he was permitted to drive on Larapinta Drive, was a level of instruction that was confined to how to hold your hands on the wheel and don't drive faster than 80 kilometres an hour, sufficient in terms of instruction for off-road driving?

WITNESS: A. Not even close. No, definitely not sufficient."

78 Mr Wingrove did not agree with Mr Ristell's assessment of Larapinta Drive, and he did not regard the road as being unsuitable for the first defendant to drive upon. Indeed, in cross examination (T 333), Mr Wingrove opined that "it was a good road for a person to get some experience on." He added that it was a road "that I would have put a member of my family on to learn, to be honest." Mr Wingrove would, however, have expected that the first defendant would have been instructed concerning the various potential hazards and recovery skills that might be required (T 334).

79 Mr Poulter has instructed drivers in the use of four wheel drives since 1993 and he has instructed novice drivers in the use of such vehicles. Over the course of some ten years he has taken them on four wheel drive tours in the outback. He said he would not have hesitated to allow an inexperienced driver to drive on Larapinta Drive with supervision and instruction (T 341). He considered that eighty kilometres per hour was an acceptable speed (T 343). Indeed, on a corrugated surface like Larapinta Drive he considered a constant speed of eighty kilometres per hour was to be recommended (T 350).

80 Whilst he disagreed with the proposition that Larapinta Drive was a road that was unsuitable for a learner, Mr Poulter considered that Larapinta Drive was not an appropriate place for a novice who was not under instruction or supervision (T 352).

81 Dr Morrison submitted that the Court ought to prefer the opinions as to the suitability of Larapinta Drive for learners as expressed by Mr Wingrove and Mr Poulter to the opinion as to the unsuitability of that location as expressed by Mr Ristell. It was submitted that Mr Ristell's evidence was unsatisfactory in a number of respects:

(i) in the assertion that he had difficulty in controlling his vehicle at eighty kilometres per hour on Larapinta Drive and hence that this was an unsafe speed for a learner;

(ii) in his assertion that the driving experience in the Simpson Desert afforded no experience or skill learning for Larapinta Drive, even though he acknowledged that it involved driving over tracks as well as sand dunes;

(iii) Mr Ristell said that the police photographs demonstrated very severe corrugations, contrary to the view of Mr Baum;

(iv) Mr Ristell was entirely dismissive of the experience gained by the first defendant at Kurnell and Woronora Cemetery;

(v) Mr Ristell described Larapinta Drive as extremely rough, contrary to the evidence of Mr Baum;

(vi) Mr Ristell disagreed entirely with the proposition that the advisory signs were intended to convey a general warning regarding the state of the road at large rather than a warning as to a specific area of it. This evidence did not accord with the evidence of Mr Baum

82 I was particularly impressed with the evidence of Mr Baum, who, by reason of his posting at Hermannsburg, was best qualified to assess the road conditions on Larapinta Drive. I prefer his assessment of those conditions specifically referable to the time of the accident than Mr Ristell's assessment formed following an inspection in July 2005. I am not persuaded by Mr Ristell's evidence that it was unsafe to travel along Larapinta Drive at a speed in excess of eighty kilometres per hour. Mr Baum's evidence persuades me otherwise.

83 Both Mr Wingrove and Mr Poulter considered Larapinta Drive was not inappropriate for a learner to drive upon and having reflected upon the evidence of all three witnesses, and bearing in mind the various matters raised by Dr Morrison concerning Mr Ristell's evidence, I do not find that the plaintiff was negligent merely in permitting the first defendant to drive on Larapinta Drive.

84 However, I consider that there was a need to provide the first defendant with appropriate instruction. The only instruction that the plaintiff contends he gave to the first defendant was as to the speed at which he should travel and as to the way in which he should hold the steering wheel. More was required than that. The plaintiff should have given the first defendant further instruction relevant to the conditions likely to be encountered on Larapinta Drive. Whilst the first defendant acknowledged that common sense suggested he ought not to have accelerated when he did and whilst in doing so he failed to comply with his grandmother's instruction, it seems to me that prudence required that the plaintiff instruct the first defendant, before he drove on Larapinta Drive, that in the event that the vehicle entered on to the shoulders he ought not to change direction sharply and he ought not to accelerate when seeking to return to the road surface proper. In the exercise of due care, it was not enough for the plaintiff to sit in the front passenger seat observing what the first defendant was doing. The exercise of due care called for ongoing instruction as required.

85 In addition to the instruction which I have already identified as instruction that ought to have been given, it seems to me that prudence required that the plaintiff be instructed not to change direction to pass over an object such as the shredded tyre which appeared on the road surface. The evidence was that such an object was frequently observed, if not on then beside the road. According to the plaintiff, he observed the tyre remnant which influenced the first defendant to change direction when the LandCruiser was 300 metres away from it. The plaintiff said he was unable to recall if such an object had been encountered when the first defendant was driving earlier. It seems to me that prudence required that the plaintiff, having seen the tyre, should have pointed out to the first defendant that the proper course was for him to drive over the top of it.

86 Caution must be exercised in avoiding a determination as to the content of appropriate instruction only with the benefit of hindsight, but it seems to me that in the three areas to which I have referred, there was a need for the plaintiff in the exercise of due care to give the first defendant relevant instruction before the first defendant began to drive on Larapinta Drive. I find no such instruction was given, and I find on the balance of probabilities that the failure to give such instruction constituted contributory negligence.

87 I do not overlook the assertion that the plaintiff was negligent in allowing the first defendant to drive at a speed of up to eighty kilometres per hour. However, considering the totality of the evidence in point, I am not persuaded by what Mr Ristell said that the plaintiff was negligent in allowing the first defendant to drive at a speed of up to eighty kilometres per hour. His negligence was in permitting the first defendant to drive absent the instruction on the matters I have identified. Failure to instruct I consider contributed to the harm that the plaintiff suffered.

88 How is fault to be apportioned in this case? Mr Rewell submitted that the plaintiff ought to bear most of the responsibility for the occurrence of the accident and advanced a suggested assessment of seventy-five percent for contributory negligence. Dr Morrison's submission was to the contrary, and he submitted that if there was to be a finding of contributory negligence, it would not exceed twenty to twenty-five percent.

89 In Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALR 529 Gibbs CJ, Mason, Wilson, Brennan and Deane JJ said in their joint judgment (at 532-533): "A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201… The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 , and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination…"

90 I must address the apportionment issue with the considerations identified in Podrebersek very much in mind.

91 The conclusion I have reached is that it is just and equitable, having regard to the plaintiff's share of the responsibility for the harm suffered, that the damages to which he would otherwise have been entitled ought to be reduced by thirty percent. The assessment of damages

92 By reference to what principles are damages to be assessed in this case?

93 It is now settled that the law governing the assessment is the law of the Northern Territory: see John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503. Whilst that much is clear, the governing principles for the purposes of this claim are nevertheless a matter of contention. The argument centres upon the construction and application of the Motor Accidents (Compensation) Act, Northern Territory, and its provisions such as were in force on 3 April 2002.

94 The law of the Northern Territory was changed by the introduction of the Motor Accidents (Compensation) Act 1979 which eroded common law rights for those living in the Northern Territory. When the Act came into force on 1 July 1979, s 5 provided: "(1) Subject to sub-section (2), no action for damages shall lie in the Territory in respect of the death of or injury to a resident of the Territory in or as a result of an accident that occurred in the Territory. (2) Subject to sub-section (3), nothing in sub-section (1) deprives a person of the right to bring an action for damages for pain and suffering or loss of amenities of life. (3) A person who has received or has elected to receive a benefit under section 17 cannot commence or continue an action referred to sub-section (2)." (Emphasis added)

95 Section 5 was repealed in 1997 and in its place a new s 5 was introduced, providing thus: 5. Abolition of certain common law rights (1) An action for damages shall not lie in the Territory - (a) in respect of the death of or injury to a person who at the time of the accident was a resident of the Territory; or (b) in respect of an injury to a person who, at the time of the accident, was not a resident of the Territory - (i) for non-economic loss in excess of the amount from time to time prescribed for the purposes of section 17; or (ii) for future loss except at discounted present values; in or as the result of an accident that occurred in the Territory. (2) In subsection (1)(b) - (a) "non-economic loss" means - (i) pain and suffering; (ii) loss of amenities of life; (iii) loss of expectation of life; or (iv) disfigurement; and (b) "future loss" means - (i) future economic loss; (ii) future loss of earning capacity; or (iii) future expenditure on needs resulting from the injury, and includes - (iv) in the case of the person's death, future loss by a spouse, dependent child or dependent parent of income due to loss of earning capacity referred to in paragraph (ii); and (v) a claim for damages under the Compensation (Fatal Injuries) Act …"

96 There was a further amendment to s 5 effected by the Motor Accidents (Compensation) Amendment Act 2000 which inserted after sub-section (1)(b)(ii) the following: "(iii) for future economic loss or future loss of earning capacity calculated on a weekly basis for any sum in excess of the amount from time to time prescribed for the purposes of section 13"

97 Hence, as at 3 April 2002, s 5 was in the form following: (1) An action for damages shall not lie in the Territory - (a) in respect of the death of or injury to a person who at the time of the accident was a resident of the Territory; or (b) in respect of an injury to a person who, at the time of the accident, was not a resident of the Territory - (i) for non-economic loss in excess of the amount from time to time prescribed for the purposes of section 17; (ii) for future loss except at discounted present values; or (iii) for future economic loss or future loss of earning capacity calculated on a weekly basis for any sum in excess of the amount from time to time prescribed for the purposes of section 13, in or as the result of an accident that occurred in the Territory . (2) In subsection (1)(b) - (a) "non-economic loss" means - (i) pain and suffering; (ii) loss of amenities of life; (iii) loss of expectation of life; or (iv) disfigurement; and (b) "future loss" means - (i) future economic loss; (ii) future loss of earning capacity; or (iii) future expenditure on needs resulting from the injury, and includes - (iv) in the case of the person's death, future loss by a spouse, dependent child or dependent parent of income due to loss of earning capacity referred to in paragraph (ii); and (v) a claim for damages under the Compensation (Fatal Injuries) Act…" (Emphasis added)

98 "Resident of the Territory" is defined in s 4 of the Act. It is unnecessary for present purposes to record that definition here. Plainly, the plaintiff was not a resident of the Territory at the time of his accident, and that much is common ground between the parties.

99 It follows, therefore, that s 5(1)(a) does not apply. Dr Morrison submitted that s 5(1)(b) does not apply either because whilst the plaintiff's accident occurred in the Northern Territory, the action the plaintiff brings is not being brought in the Territory. So it is that Dr Morrison contends s 5(1) has no application and in the result Dr Morrison submits that the plaintiff is entitled to have his damages assessed, unfettered by the provisions of the Territory legislation and therefore by reference to common law principles, including the paramount principle that damages are to be awarded by way of compensation so as to put the plaintiff, so far as money can do it, in the position in which he would have been had he not been injured.

100 Dr Morrison submitted that when one considers the Second Reading Speeches at the time of the introduction of the Act in 1979 and at the time of the amendment to s 5 in 2000 they support the proposition that a plaintiff in the position of this plaintiff was not intended to be affected by the Northern Territory legislation.

101 In the Second Reading Speech of the Chief Minister on 8 March 1979, he said concerning s 5: "Clause 5 removes the right to initiate actions in negligence as a means of victims securing compensation for motor accidents. That right is replaced by the benefits later in the Bill. Honourable members will note that the clause does not seek to remove the rights of visitors to the Territory or the common law rights of Territorians outside the Territory…"

102 In the Second Reading Speech on 11 May 2000 concerning the amendments identified earlier in this judgment, the following appears: "The consultants recommended, and the Government accepts, that the common law should be modified as it is in interstate jurisdictions to cap the level of awards for future economic loss payable to non-Territorians, to be the same as the level payable to the residents under the scheme. This will be achieved by the addition of the new paragraph 5(1)(b)(iii) to the current Act…"

103 And, then: "The Government recognises that the provisions will restrict the level of damages awarded to non-residents by the Northern Territory Courts but consider that the advantages of the continued financial viability of the scheme, and the maintenance of the current level of benefits payable to Territorians, far outweighs the detriment."

104 Dr Morrison submitted the legislation in the Northern Territory does not affect an action brought by a non-Territorian suing in a jurisdiction outside the Northern Territory where the motor vehicle involved was registered and insured outside the Northern Territory.

105 Dr Morrison drew attention to the reference to s 13 in s 5(i)(b)(iii). Section 13 provides: "13. Compensation for loss of earning capacity (1) A person who suffers an injury in or as a result of an accident that occurred in the Territory or in or from a Territory motor vehicle - (a) who was, at the time of the accident, a resident of the Territory; and (b) whose capacity to earn income from personal exertion (either physical or mental) is, in the opinion of the Board, reduced as a result of the injury, shall be paid such compensation for that loss of earning capacity as is provided in this section…"

106 Section 13 expressly limits its scope to residents of the Territory and provides for involvement of "the Board", which the Supreme Court in this State is not in a position to consult. Hence, Dr Morrison submitted, it is clear that the legislature did not intend that s 13 should apply to non-Territorians suing outside the Territory, and it follows that the reference to s 13 in s 5(1)(b)(iii) was a reference not intended to apply to non-Territorians suing outside the Territory either.

107 Dr Morrison next made reference to s 41 of the Act. Section 41 is in these terms: "41. Savings and enforcement of certain rights (1) In this section 'authorized insurer' and 'third-party policy' have the same meaning as they respectively have in Part V of the Motor Vehicles Act as in force immediately before the commencement of this Act. (2) Notwithstanding anything in this Act, where an action in respect of the death or injury of a person in or as a result of an accident would have lain under the law applicable immediately before the commencement of this Act had the accident then occurred, nothing in this Act shall apply so as to prevent a person pursuing such action against a person who, at the time of the accident, was the holder of a current third-party policy. (3) Notwithstanding anything in this Act, the Board may, as a condition of paying or continuing to pay a benefit under this Act - (a) in a case referred to in subsection (2); or (b) in a case where a person entitled to a benefit under this Act has a right of action against any other person as a result of the accident in respect of which that entitlement arose, require the person to commence or continue an action against the person holding a current third-party policy or that other person, as the case may be…"

108 Dr Morrison submitted that s 41 made clear that in respect of existing and continuing third party policies, the existing common law rights remain.

109 Mr Rewell submitted that the assessment of damages in this case was governed by the provisions of s 5 of the Motor Accidents (Compensation) Act. He submitted that the introductory words of s 5(1) apply both to residents in the Territory, whose position is considered in (a), and to non residents, whose position is considered in (b). If the words are to be given the meaning for which the plaintiff contends, it was submitted that residents could avoid the effect of s 5 by commencing their proceedings in some other State or Territory and hence that the purpose of the Act would be frustrated.

110 In responding to that submission, Dr Morrison referred to the decision of Martin J in Godhino v Willard 51 NTR 31. That case concerned the Northern Territory statute in its earlier form as in operation in November 1981. The plaintiff in that case left the Northern Territory after the accident and argued that since he was no longer a resident at the time of bringing proceedings, s 5(1) did not apply. His Honour's remarks in dealing with the submission were obiter because his Honour determined that s 41(2) saved the right of a person injured in an accident to pursue an action against a person who at the time of the accident was the holder of the third party policy. His Honour did express the opinion however that the relevant time of residence for the purpose of s 5 was the time of the accident itself. His later departure from the Territory was, in his Honour's view, irrelevant.

111 The facts in Godhino were different from those in the present case and ,of course, the action which was brought was brought in the Northern Territory. Section 5 was in a different form then, and I do not find the reference to Godhino particularly helpful.

112 What is clear in the present context is that had the plaintiff brought this action in the Northern Territory, s 5(1)(b) would have required that damages be assessed in accordance with that provision.

113 If the effect of the statutory expression of s 5(1) was to avoid the operation of the sub-section in a case where, as here, the plaintiff non-resident chose to sue outside the Northern Territory, this would place the plaintiff at an advantage he would not have enjoyed in proceedings in the Northern Territory, where the accident occurred and the cause of action arose.

114 It seems to me that this result would encourage forum shopping and would be altogether contrary to the reasoning in John Pfeiffer Pty Limited v Rogerson (supra): see in particular the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at 521-522 [27] and 540-542 [88]-[96] and 544 [101]-[103].

115 The Second Reading Speech in 1979 to which Dr Morrison drew attention was, of course, repealed in 1997. Section 5 of that Act was directed only at "residents of the Territory" and was in a form significantly different from s 5 of the 1997 Act. Nor do I find the Second Reading Speech for the 2000 Act of assistance in the present context.

116 Mr Rewell submitted that Dr Morrison's reliance upon the reference in s 5(1)(b)(iii) to s 13 was unfounded. It was submitted that the reference to s 13 was simply a reference to "the amount" which is made relevant to s 5(1)(b)(iii) calculations. The relevant amount as provided for from time to time is presumably readily ascertainable by reference to available publications. I accept Mr Rewell's submission, and I do not consider the reference to s 13 advances Dr Morrison's principal submission.

117 As to s 41, Mr Rewell submitted that the section has not been altered since the Act was introduced in 1979 and is plainly intended to apply to circumstances where a person is injured and the party at fault was the holder of a third party insurance policy issued under the law as it existed before the statute's operation commenced. Reference was made to the decision in Boyd v Boynton & Ors 28 NTR 1 in support of this submission. In that case the plaintiff was injured in a motor vehicle accident in Katherine in the Northern Territory in July 1979, and a certificate evidenced that there was a third party policy in force in respect of the car. It was held that the plaintiff could pursue an action for damages against the holder of the current third party policy and was not restricted by the provisions of the 1979 Act in the damages recoverable provided negligence was proved. Forster CJ referred to s 41 as being "a transitional saving provision", and said this (at 4-5): "In order to make the transition from the old scheme to the new, it seems to me that the legislature intended that third party policies current on 1 July 1979, with respect to which premiums had already been paid, should continue in force until they expired, whereupon with the re-registration of the relevant vehicle, the compensation contribution would be made in lieu of a premium to renew the third party policy."

118 It was submitted that s 41 does not apply to the plaintiff's claim here, and I accept that submission.

119 Both counsel referred to the decision in Perrett v Robinson (1988) 169 CLR 172. The plaintiff sued the defendant for damages for personal injuries sustained in a motor vehicle accident that occurred in the Northern Territory. The plaintiff was a resident of the Northern Territory as defined under the 1979 Act (supra). He brought his action in Queensland in compliance with a requirement of the Board under s 41(3)(b) of the Motor Accidents (Compensation) Act (see [105] above). It was held at first instance no damages for impairment of earning capacity should be allowed because s 5 of the Act applied (see Perrett v Robinson (1987) SMVR 39). The appeal to the High Court was dismissed.

120 It is to be observed at the outset that the facts are distinguishable from the present case. The plaintiff was a Northern Territory resident who sued elsewhere. The court applied the principles in Breavington v Godleman (1988-1989) 169 CLR 41, in which a majority of the court held that the law of the Northern Territory as the lex loci delicti was applicable in an action brought in Victoria. Of course, Perrett was decided before Rogerson.

121 What is significant about Perrett is that it acknowledged the overriding effect of s 41(2) upon s 5(1) and s 5(2) in the circumstances provided for in s 41(2) (see the judgment of Brennan J at 180-181). Moreover, Perrett recognised the purpose of s 41 in providing a vehicle for reimbursing the Territory Insurance Office for benefits paid by it under the Act (see the judgment of Toohey J at 190).

122 Further, the Court recognised the transitional nature of s 41(2). Dawson J said as to this at 184-185: "Before turning to the actual wording of s 41 it may be helpful to observe that the aim of the section is apparently to ensure that the compensation scheme may be reimbursed out of insurance moneys payable in respect of injuries for which benefits are paid under the Act. Section 41(2) is transitional and preserves actions against persons holding current third party policies which expire after the commencement date of the Act. The policies referred to in s 41(2) are policies under the compulsory third party insurance scheme in the Northern Territory which was replaced by the no-fault scheme under the Act. Those policies would now have expired and, as a consequence, it would seem unlikely that s 41(2) has any longer any operative force."

123 Toohey J said (at 191): "While not in express terms a transitional provision, s 41(2) of the Act is of that character, for reasons explained by Forster CJ in Boyd v Boynton (1984) 28 NTR 1. When the Act came into force on 1 July 1979, Pt V of the Motor Vehicles Act was repealed. The compulsory third-party scheme existing under Pt V was replaced by the no-fault scheme under the Act. An amendment to the Motor Vehicles Act, also operative from 1 July 1979, provided for compensation contributions to be made by all persons seeking to register or re-register a motor vehicle."

124 Toohey J then went on to refer to what Forster CJ said in the passage I set out earlier (at [115] above).

125 Toohey J also recognised the "limited duration of s 41(3)" (at 191).

126 Ultimately I do not consider that Perrett advances Dr Morrison's submission.

127 It would indeed be a curious result if the plaintiff was here able to recover damages unfettered by statutory restraint, a result not achievable had he sued in the Northern Territory where the accident happened, nor if he had been injured in New South Wales, where the relevant policy of insurance was issued. I have concluded, persuaded as I am by Mr Rewell's submissions to this effect, that s 5 ought not to be given the effect for which Dr Morrison contends. In my opinion, damages are to be assessed in accordance with the statutory scheme of the Northern Territory.

128 Dr Morrison submitted that even if I came to this conclusion the restriction would not extend to the award for economic loss because s 5(1)(b)(iii) should not apply to this claim.

129 Dr Morrison referred to the decision in Southwell v Takashi Tomomoto, Bridgestone Australia ([1994] NTSC 105). The plaintiff in that case was not a resident of the Northern Territory. He was injured in a motor vehicle accident in the Northern Territory in November 1989. He brought his claim in the Northern Territory. In the proceedings brought, Angel J held at [6]: "Under s 5(1)(b) of the Motor Accidents Compensation Act, persons who are not residents of the Territory retain their full common law rights in relation to economic loss while their common law rights in relation to non-economic loss are limited to the amount prescribed for the purposes of s 17 of the Act."

130 In assessing damages his Honour used a three percent discount for the calculation of economic loss and allowed interest on non economic loss in accordance with MBP (SA) Pty Limited v Gogic (1990-1991) 171 CLR 657.

131 It was submitted that I should adopt the same approach to my assessment in this case.

132 Southwell was decided prior to the amendments to the relevant statute introduced in 1997 and 2000. I must have regard to the statute as it stood in April 2002.

133 As I understand Dr Morrison's argument, he submits that even if this be so, the reference in s 5(1)(b)(iii) to s 13 invites attention to the content of s 13, and that content only applies to a resident of the Territory. This overlaps with the submission identified earlier (at [103] and [104] above). I do not accept that submission for the reasons earlier stated (see [114] above).

134 For the reasons stated, I propose to assess damages in accordance with the restraints imposed by s 5(1)(b) of the Motor Accidents (Compensation) Act as in force at 3 April 2002. I propose also to indicate what damages I would have awarded under the relevant heads of damage if I had concluded that damages were properly to be assessed unfettered by those restraints. I am going to adopt this course in an endeavour to avoid a new trial in the event that I am found on appeal to be in error in concluding that s 5(1)(b) governs the assessment. Life expectancy

135 Before considering the various heads of damage, it is necessary to determine the plaintiff's probable life expectancy. This has been a matter of contention with differing opinions being given by Dr Buckley and by Dr Voss.

136 Dr Buckley is a specialist physician in rehabilitation medicine. He examined the plaintiff on 17 February 2005 and three reports from Dr Buckley were tendered, bearing dates 27 April 2005, 20 June 2005 and 13 January 2006. Dr Buckley addressed the issue of life expectancy in his report dated 20 June 2005 in which the doctor wrote: " Life expectancy Australian data published by Associate Professor, John Yeo, formerly of Royal North Shore Hospital Spinal Injuries Unit, suggest that Mr Imbree's level of disability is associated with a survival of 77% of the years that would normally remain. In the same publication, Professor Yeo indicates various factors which may improve the survival above the average. Positive effects in this regard, for Mr Imbree, include good psychosocial adjustment, absence of significant pre-existing or unrelated concurrent medical conditions, high motivation in self care and (presumably) good availability of medical and attendant care. Taking all these issues into account, I propose that it is reasonable to increase the survival from 77% of the years that would normally remain to 85% of the years that would normally remain."

137 The material attributed to Associate Professor Yeo was tendered as Exhibit K, and comprises a study analysing the mortality of 1453 spinal cord injured patients treated at a university teaching hospital over a forty year period. The study acknowledged an improvement rate in the standardised rate of mortality among people with spinal cord injury over a twenty year period to 1993, and as Dr Buckley stated, the study suggested that the plaintiff's disability is such that his life expectancy is seventy-seven percent of the years that would normally remain. However, Dr Buckley considered, consistently with Dr Yeo's study, that there were to be factored into that study outcome the positive features which Dr Buckley identified in his report, and hence he arrived at the opinion that the plaintiff's life expectancy is reduced to eighty-five percent of the years that would normally remain.

138 In cross examination Dr Buckley acknowledged that there were studies that had been carried out elsewhere in the world which had produced less favourable outcomes as to life expectancy than Dr Yeo's studies. In particular, Dr Buckley was aware of the poorer results of studies in the United States.

139 In cross examination it was put to Dr Buckley that he had "double counted" in taking Dr Yeo's projected figure of seventy-seven percent and in projecting it again to eighty-five percent for the plaintiff. Dr Buckley responded (T 226): "A. I think they are two quite different projections. The first is related to the fact that we, the medical attendants, are improving the care of people with quadriplegia as a group. Their life expectancy as a group is rising. My second projection is entirely related to Mr Imbree's personal circumstances and characteristics which in my opinion are likely to improve his life expectancy beyond the average of people with his type of injury."

140 The cross examination continued: "Q. I assume if Professor Yeo had had the opportunity to see Mr Imbree himself you would defer to Professor Yeo's own opinion as to how his research should be applied in the particular case of Mr Imbree? A. Not necessarily. Not necessarily. I am, for example, aware that Professor Yeo's usual approach to this is to simply quote the average that he has found. I am not certain why Professor Yeo doesn't then look at the individual and say: I expect that this man may be better than the average or worse than the average. I am aware that he does not tend to say that.

Q. Professor Yeo's usual practice is to quote the projected figure that he and his colleagues produce? A. Yes, it is.

Q. And if anyone is in a position to interpret the basis on which that projection was based, to see if it warrants increase in a particular case, it is Professor Yeo, is it not? A. Professor Yeo will have an opinion about that and I have an opinion about it. I have enormous respect for Professor Yeo, but nevertheless my understanding of the data here is that Professor Yeo opens the possibility and the fact, if you like, that individuals are different or may be different to the group.

Q. But the one in the best position to known what he had in mind when he improved the statistical figure of 70 per cent to 77 is Professor Yeo himself? A. I would have to concede that. But it is fairly clearly stated in my opinion in this study about what his reasons for increasing from the 70 per cent to the 77 per cent are, and he goes onto state then there are some additional factors which should be taken into account or may be taken into account."

141 Dr Voss was called in the defendants' case. Dr Voss was in clinical practice for many years as a specialist in rehabilitation medicine but has ceased clinical practice and now does part time medico-legal work. Dr Voss did not see the plaintiff for the purposes of the preparation of his report of 21 February 2006 (Exhibit 10). Dr Voss referred in his report to the Yeo studies and to the studies of the University of Alabama where a database of 6579 deceased subjects who had suffered spinal cord injuries was utilised. The conclusion of Dr Voss was that the plaintiff is unlikely to survive beyond twenty years from the date of his injury. Dr Voss opined that Professor Yeo's studies made no allowance for the fact that the plaintiff was a high level quadriplegic and Dr Voss preferred the American studies with the wider database. By reference to the American studies, having regard to the high level of quadriplegia, the plaintiff's life expectancy was "something less than twenty-one years".

142 In cross examination Dr Voss said (T 319) the patients at North Shore Hospital would receive better care than patients in the United States "particularly the poorer southern part". He acknowledged that in the period covered by Dr Yeo's study there was a progressive improvement in the life expectancy level, and he acknowledged that the circumstance of being a non smoker was relevant to life expectancy, as was the absence of urinary tract infections, as was the absence of bedsores.

143 Notwithstanding the larger database in the American studies, I am persuaded by Dr Buckley's evidence that the Dr Yeo study provides a more relevant guideline when one is looking at life expectancy levels for quadriplegics in New South Wales. Moreover, it seems to me to be consistent with the Dr Yeo study that Dr Buckley should bring into account in assessing this particular plaintiff's life expectancy those favourable features identified by Dr Buckley as being present in the plaintiff's case.

144 I am asked by Mr Rewell to infer that Associate Professor Yeo if called would not have assisted the plaintiff's case where there has been a failure to explain why he has not been called. Equally, Dr Morrison relies upon Jones v Dunkel concerning the failure of the defendants to call Associate Professor Jones, there being no explanation as to why he has not been called. I accept, of course, for the purposes of these competing submissions that both these specialists were qualified to give evidence in this case, and ultimately I have concluded that I should determine the life expectancy issue on the evidence that is before me.

145 Mr Rewell submitted that I should determine on the balance of probabilities that the plaintiff's life expectancy was 22.4 years from the date of injury or 18.5 years from the date of judgment. However, preferring as I do the evidence of Dr Buckley who had the benefit of seeing the plaintiff and whose assessment was influenced by Dr Yeo's studies rather than the Alabama studies, I find that the plaintiff's life expectancy, which, but for his injuries, would now have been thirty-six years, has been reduced to eighty-five percent of that period, namely 30.6 years.

146 The parties were requested to prepare a schedule of damages, indicating in appropriate columns the various heads of damages, the plaintiff's claim and the defendants' response. This course was followed, and has been of assistance to me in addressing the issue of damages. I propose to address the various items in the order in which they were addressed in the schedule. A copy of the schedule of damages referred to in submissions and in this judgment has been marked for identification:5 and placed with the papers. Non economic loss

147 Following his accident the plaintiff was taken to Royal Adelaide Hospital where surgical intervention was required to stabilise a fracture dislocation at C4/5. He was moved to Prince of Wales Hospital, Sydney on 26 April 2002 and on 17 May 2002 he was transferred to Prince Henry Hospital for rehabilitation. He has been left with the most grave disabilities by reason of the injury sustained. He has no voluntary movement in his legs or in his arms. He is able to control a wheelchair with chin control and breath control for the switches. He is dependent upon an electric hoist for transfers, and is essentially dependent upon others for all aspects of his daily living.

148 Dr Buckley, in his report of 27 April 2005, has provided a complete review of the plaintiff's ongoing problems and needs. That review is unchallenged, and I accept it as accurate. How the plaintiff's needs are reasonably to be addressed is a matter that must be considered discretely, but a reading of Dr Buckley's report records the devastating effect of the accident upon the plaintiff.

149 Prior to this accident the plaintiff enjoyed an active lifestyle. He was a qualified solicitor who in 1995 joined Qantas and became a contracts manager and purchasing officer. Outside his work activities, he led an active life and was interested in trail bike riding, motor cross driving, scuba diving, snorkelling, spear fishing and boating. He also had an interest in four wheel drive vehicles, and his mechanical skills were such that he was able to service his own vehicle. He constructed substantial additions to the home he shared with his wife at Grays Point, and after their separation he carried out substantial additions to his home at Kirrawee.

150 The plaintiff had had a knee reconstruction in 1996 and he had injured his back, but I accept that generally his health prior to the accident was good.

151 A video was shown in the course of the hearing which affords a presentation of the plaintiff's daily routine, and I am mindful of its content when determining what allowance should be made for non economic loss.

152 The maximum amount payable pursuant to s 5(1)(b)(i) for non economic loss is $216,112. The parties are agreed that that sum should be awarded to the plaintiff and having regard to the features of non economic loss that bear upon the plaintiff's entitlement, I am satisfied that this is the proper sum to award.

153 (If damages were to be assessed without the applicable statutory restraint, I would have allowed for the non economic aspects of general damages, the sum of $400,000.)

154 The plaintiff is entitled to interest on the allowance for non economic loss. The parties are agreed that the appropriate allowance is $8644, and I include that amount in my assessment.

155 (Absent the statutory restraint, and had I awarded $400,000 for the non economic aspects, I would have awarded $16,000 by way of interest.) Past economic loss

156 The parties have agreed that the appropriate allowance for past economic loss in this case is $233,920, and I include that sum in my assessment. That allowance attracts interest, and once again the parties are in agreement as to the appropriate interest. It is the sum of $42,106.

157 (It would have been appropriate to have made the same allowances for past economic loss and for interest in the event that the award of damages here was free of statutory restraint.) Future economic loss

158 By report, being part of Exhibit C, Furzer Crestani have made calculations concerning the plaintiff's future economic loss on bases postulated in Schedules C-F. However, because the Motor Accidents (Compensation) Act applies, s 5(1)(b)(iii) limits the allowance for future economic loss or future loss of earning capacity to a calculation based on the weekly rate set for the purposes of s 13. Here the relevant weekly rate is $562.15, and it is common ground that the plaintiff is entitled to be compensated for a loss in that amount to age sixty-five. The statute imposes a six percent discount rate in respect of the present value of future losses. The parties are agreed that the appropriate award for future economic loss is $308,620, and I include that figure in my assessment.

159 (If the statute did not apply, the parties are again agreed as to what the appropriate award would have been for the future economic loss, and the figure to be included in the assessment would have been $1,519,380.) Superannuation

160 The plaintiff is entitled to be compensated for lost superannuation benefits, and on the appropriate entitlement the parties are agreed. It is agreed that the proper allowance is $36,407, and that sum I include in my assessment.

161 (Had the Northern Territory statute not applied, the parties are agreed that the appropriate allowance for the loss of superannuation benefits would have been $162,731.) Motor vehicle, discount fares and long service leave claims

162 It is convenient to deal with these three items together. Under the claim for future economic loss, the plaintiff claims compensation for the loss of the motor vehicle provided as part of his salary package, the loss of availability of discount fares with Qantas, and the loss of long service leave. These are significant claims which have been quantified in the report by Furzer Crestani dated 1 February 2006.

163 The claim advanced for the value of the provision of the motor vehicle to the plaintiff by his employer Qantas is a claim for $297,785. The method of calculation of that claim is exposed in Schedule M to the Furzer Crestani report of 1 February 2006. The claim for the loss of the discounted airfares is a claim for $177,240. The method of calculation of that claim is exposed in Schedule P to that same report. Then there is a claim for long service leave benefits which have been lost and the method of calculation of that claim is exposed in Schedule I to that same Furzer Crestani report.

164 The defendants submit that no provision should be made for any of these three claims.

165 The issue that arises is whether the Motor Accidents Compensation Act precludes recovery under these headings. Counsel were not able to refer to any authority which is directly in point, but the claim involves consideration of ss 5 and 13 of the statute. Section 5(1)(b)(iii) restricts a claimant to recovery "for future economic loss or future loss of earning capacity" to the amount prescribed from time to time for the purposes of s 13. Section 13 addresses provision for loss of earning capacity, and, as earlier mentioned, the allowance for such losses as are contemplated by these two sections is capped at provision for $562.15 per week. It seems to me that the defendants' contention that that cap embraces the entire salary package when provision is being made for future loss of earning capacity is correct. These provisions in respect of which the plaintiff seeks to make this discrete claim have to be regarded as elements of the salary package, and in my opinion these discrete claims cannot be maintained.

166 I observe further that a claim later to be considered for travel costs and a claim later to be considered for future motor vehicle costs are being advanced and are compensable.

167 (If, contrary to the conclusion I have reached, the claims in respect of the motor vehicle, the discount fares and the long service leave are recoverable, I do not understand the defendants to maintain that the mathematical basis for these damages is incorrect.) Future treatment

168 It is common ground that the applicant will require treatment in the future in a number of disciplines. Provision has to be made for the cost of treatment by the plaintiff's general practitioner, a spinal specialist, a neurologist, a physiotherapist, an occupational therapist and a dietician. Provision has to be made for nursing care and for hospitalisation in the event of pneumonia, for renal care and for future surgery. Provision has to be made for the services of a podiatrist and for pharmaceutical supplies.

169 The area of dispute which bears upon the allowances to be made under this heading is the plaintiff's life expectancy. For reasons stated earlier, I accept that the plaintiff has the life expectancy which Dr Buckley opined rather than the lesser life expectancy which Mr Rewell submitted I should find. It follows that the plaintiff is entitled to have included in his assessment the following amounts for future treatment:

General practitioner $22,320 Spinal specialist 1,496 Provision for future surgery 33,740 Provision for renal care 15,713 Provision for hospitalisation for pneumonia 30,266 Provision for urological treatment 7,972 Physiotherapy 5,148 Occupational therapy 29,760 Nursing care 12,019 Dietician 2,003 Podiatrist 5,456 Pharmaceutical costs 191,219 357,112

170 Since the only issue about any of the future treatment costs above identified was the impact of the plaintiff's life expectancy upon the estimated costs, I do not find it necessary to go into further detail about the nature of the various needs for such future treatment and how it is expected to arise. The parties were agreed as to the relevant mathematical calculations.

171 I include the sum of $357,112 in my assessment.

172 (Had it been appropriate to assess damages according to common law principles, the relevant figures would have been these:

General practitioner $31,500 Spinal specialist 2,111 Provision for future surgery 51,946 Provision for renal care 22,179 Provision for hospital care (for pneumonia) 42,714 Urological treatment 11,251 Physiotherapy 7,266 Occupational therapy 42,000 Nursing care 16,962 Dietician 2,827 Podiatrist 7,700 Pharmaceutical 269,866 $508,322) Case manager

173 A claim is made on the plaintiff's behalf for an allowance for the provision of a case manager. This claim is disputed.

174 Support for the claim is to be found in the evidence Glynnis Flanagan, an occupational therapist. In her report, Ms Flanagan wrote, after assessing the plaintiff's situation in his home, (para 11.8.4 of report of 25 January 2006): "Whilst I believe that Mr. Imbree is capable of managing his own affairs, considering the nature and complexity of the level of care and assistance that he requires including ensuring that his health management plan is carried out, that attendant carers provided by the service provider are suitable and competent in providing services to Mr. Imbree, as well as the inevitable need to source new providers and health care services when current service providers are no longer available (for example at the current time Mr. Imbree and his case manager are having difficulty locating a private practising Occupational Therapist within close proximity to his home), provide support to Mr. Imbree and assist him with achieving his goals and the inevitable need to maintain and keep equipment functioning (at the current time the Environmental Control Unit is not functioning well and his wheelchair needs review and updating). As stated, whilst I believe that Mr. Imbree does have the capabilities of managing his affairs, considering he has to live with severe physical disability, which in itself can be a source of frustration and can be depressing, I believe that he does require ongoing assistance and support in managing his affairs. Thus I recommend ongoing case management by a professional who has experience with persons who have spinal cord injury. I recommend provision be made for five hours per month case management (including travel time) now and in the future."

175 Ms Flanagan gave evidence consistent with the above (T 147).

176 In cross examination, Ms Flanagan acknowledged that care arrangements had been put in place ever since he returned to his home early in 2004. Moreover, Ms Flanagan acknowledged that the care arrangements were working well. Ms Flanagan was asked these questions and gave these answers (T 148-149): "Q. What would the case manager do one hour a week? Come over and say: How are you going? A. The case manager would probably spend two hours every second week or maybe once a month, for example if something is wrong with the wheelchair and something goes wrong with the system that operates the TV, you have to allow the time to research if something goes wrong. There was another thing that Paul was busy working on when I saw him was his car, the car is fine, but the system that is attaching his wheelchair into the car is not working as well as he would like it to work at the moment. That is being researched. Is there a better method? That is what a case manager helps him to do.

Q. Once it is routine as it is in Mr Imbree's case, what on earth is a case manager going to do in a two-hour period every fortnight or five hours every month? A. You have to allow travel time and time to write up notes of what she has done, so it would not be five hours sitting with Paul."

177 As Ms Flanagan acknowledged in cross examination, the plaintiff is fully computer literate and he researches for himself, but, nevertheless, Ms Flanagan remained of the opinion that the applicant needed support such as a case manager could provide.

178 This was a view which was not shared by Dr Buckley. Dr Buckley said in evidence (T 220) that he did not usually recommend case management services where the patient was "cognitively able". In cross examination he explained that those who have normal cognitive function do not require case management "because they are capable of doing the job themselves usually". He was then asked these questions and gave these answers (T 221): "Q. If, for example, this plaintiff was capable of trading shares and managing his own bankings and share investments and other investments, that would be a good indicator that he is also cable of dealing with what otherwise might be case management issues wouldn't it? A. I think I would have to accept that, yes.

Q. Indeed, in dealing with these types of issues assists a quadriplegia with full cognitive function to have a level of independence, at least in the sense of managing one's affairs doesn't it? A. I certainly believe that people with quadriplegia in particular should have the capacity to be as independent as possible. I don't like the idea though that people are forced to take on responsibilities that they're not capable of doing in order to try and teach them responsibilities.

Q. But the sort of things that Dr Morrison mentioned to you as being organising transport and things like that of course are well within the capabilities of a cognitively intact quadriplegia who can trade in shares and manage other financial matters? A. I would have thought that Mr Imbree could have managed these sorts of issues himself. The fact that somebody else is doing it, I'm honestly not certain of what the reason for that was or is.

Q. Well, if you assume for a moment that the reason for case management or at least the primary reason for case management to date is to have all assistance put in place, that Mr Imbree has needed, and then of course to liaise with an insurance company who has paid for those systems who require of course reports and so forth, that's not something that will persist in the future is it? A. No it's not.

Q. Once the need for that kind of back reporting in order to arrange for funding is removed, of course the need for case management as in the past will be removed? A. Well I would certainly hope so, yes. "

179 I see no reason to prefer the opinion of Ms Flanagan to the opinion of Dr Buckley, and the plaintiff impressed me as an alert person capable of participating in the management of his own affairs. The claim for case management is a claim calculated at $94,431. That sum is calculated to allow for five hours case management per month.

180 I am not satisfied that such a degree of management will be required by the plaintiff on a regular basis. It is to be recognised though that situations may arise, for instance with carers where the plaintiff may become dissatisfied with them and wish to have them replaced. It would be reasonable in such circumstances to have somebody step in to manage a changeover. There may, from time to time, be other situations warranting a manager's assistance. I think it reasonable to provide for a fund to address such problems as may occur from time to time, and I propose to allow $47,000 for this. I recognise that this approximates to fifty percent of the claim made by the plaintiff, approximating to provision for two and a half hours per month, and I include this in my assessment.

181 (In accordance with common law principles, I would have allowed $65,000 for this provision.) Care

182 The accident and the injuries sustained in it have left the plaintiff dependent on others for all activities of daily living. He requires two attendants and a hoist to assist him with transfers. He is reliant upon an electric wheelchair for mobility within the house and he is reliant upon others for transport outside the house. There is no issue but that the plaintiff requires attendant care twenty-four hours per day and two carers to help with personal care and to assist with transfers. I had the benefit of seeing a video illustrating the plaintiff's daily routine, and evidencing the type of assistance provided.

183 Paid care costs to date have been met by the defendants and are not brought into account in my assessment of damages. The present regime of care is that there is one carer around the clock and there is an overlap between the shifts of the carers for two hours in the morning and half an hour in the evening. That overlap makes provision for the plaintiff's needs for personal care for showering and dressing and for going to the toilet and for attendant transfers.

184 The plaintiff was hospitalised until January 2004 when he moved into his present home at Caringbah. Since then the regime of care currently in place has been available. The plaintiff said he sees six different carers during the week, and his experience has been that there is a turnover of carers, with each carer staying on average for one year. There is, however, one carer who has been with him since his discharge from hospital. The plaintiff said that the carer who stays during the night has a bedroom with bathroom facilities, and it is only occasionally that he needs assistance during the night. That said, I accept nevertheless that there must be a carer on call during the night.

185 The plaintiff acknowledged that with appropriately skilled people, his needs were met by having one carer all the time and two carers for two and a half hours per day (T 134). The real issue looking to the future is how best that level of care can be provided. Mr Rewell submitted that in the future the plaintiff's care needs can be met by having a live-in couple five days a week, and then on weekends shift carers in the manner in which the plaintiff presently has for seven days per week. Mr Rewell acknowledged the difficulties in having live-in couples seven days per week because this would necessitate providing accommodation for two lots of carers within the plaintiff's home.

186 Dr Buckley favours the notion of live-in carers, and this is reflected in his report of 27 April 2005 (see Exhibit B). Dr Buckley acknowledged (at T 217) that there are advantages and disadvantages of care being provided on the one hand by a house couple and on the other hand by shift carers, and he acknowledged the difficulty in finding a house couple these days (T 217).

187 Ms Flanagan began in her report of 26 June 2003 by proposing the arrangement of a house couple to attend to the plaintiff's needs. However, Ms Flanagan revised this recommendation, and in her report of 25 January 2006 stated that she had been unable to locate any live-in house couple currently providing services such as the plaintiff would require. Her evidence (at T 144) was she has tried six or seven agencies and only two of those agencies would be interested in endeavouring to find a house couple by advertising.

188 Ms Lynn, who is the principal of a company known as Premier Care Pty Limited, provides care primarily by the provision of shift carers. However, the witness did provide costings for a regime of care with a house couple working five days per week live in. In fact, Ms Lynn's agency does not provide live-in care and has never been involved in that provision.

189 Ultimately, the evidence in this case fails to satisfy me that live-in house couples are readily available. It may be possible to find them from time to time but certainly the sort of care arrangements which are presently in place are more readily available.

190 I find on the balance of probabilities that the plaintiff's future care needs are reasonably to be addressed by maintaining the sort of regime which is presently in place. I consider that the plaintiff's claim for future care should be addressed by providing for shift carers with an overlap of two hours in the morning and half an hour in the evening, seven days per week.

191 The current cost of providing the routine of care which is in place is $390,594 per annum (see costing from Nursing Group Pty Limited dated 18 January 2006 in Exhibit D). This equates to $7511 per week, and I use this figure as a guide for the future. It has not been suggested that what has been paid in the past has been unreasonable in circumstances where the care has been provided in the manner in which it has, that is by rotating shifts with two and a half hours overlap per day. Approaching the matter on the basis of the plaintiff having a life expectancy of 30.6 years, and using the six percent tables, I allow for the cost of future care the sum of $5,585,000 (rounding the calculation off).

192 (Had it been appropriate to use the three percent tables, I would have allowed $7,886,550.)

193 A claim is also made for gratuitous assistance, both past and future.

194 As to the past, the defendants acknowledge that it is reasonable to make an allowance but that this should be limited to the period during which the plaintiff was in the various hospitals to which he was admitted. It was the plaintiff's contention that whilst the plaintiff was in hospital it was reasonable to make provision for six hours per day and after he came home from hospital to allow for sixteen hours per week.

195 The plaintiff's evidence was that from the time he went into hospital in Adelaide he had assistance from his mother, from Kathy Tregaris, with whom he was in a relationship at the time, and from his father. He said he was attended, not by all of them at the one time, from 8.00 am until 9.00 pm whilst he was in Adelaide. He described the assistance (at T 30): " MORRISON: Q. What things did she assist you with? A. When they came over I was in a hospital bed pretty much with a neck brace on and immobile. They helped me with all the things that were necessary that the nurses weren't doing. They were all the little things like scratching, assisting me with the wiping of my face. The nursing staff were pretty busy there so they were few and far between so they helped me with that. They helped me change the channels, get the laundry done that I needed to get done and did the little items and shopping that I needed. Apart from that, they handled the interface back into Sydney for all the banking that needed to be done, the share transactions that hadn't been completed but needed concluding and basically helping me out with all my financial arrangements.

Q. Who was it that you relied on if you wanted to drink or anything of that nature? A. Because they were at my side I was able to get Kathy, my father or my mother, whoever was there at the time. They were sharing the work load, as it were, with me and they were able to attend to getting me something to drink. At the time I was, had a burning sensation in my, inside my mouth because I was having some, some dreams about sand burning me and so forth, so. And at that stage I didn't understand the lack of facial fluid, the inability to cough and sneeze so I was trying to address those issues. So they were there with mouth swabs and gentle stroking to my forehead, just things that were able to comfort me during the most distressing time."

196 He described the assistance which continued after he was transferred to Prince of Wales Hospital, where, he said, his father would attend from 10.30 am until 4.00 pm or thereabouts and he would have Kathy or his mother with him until 10.00 pm or 10.30 pm (T 33).

197 After the plaintiff went to President Private Hospital, the same pattern of attendances continued.

198 I accept the plaintiff's evidence as to the level of attention and care he was given by both his parents and Ms Tregaris whilst he was in hospital and that it is reasonable to make provision for the assistance gratuitously provided by them before he was allowed to go home.

199 It is not possible to determine with precision how much of the twelve hours per day that the plaintiff was attended in hospital by one or other of his parents or by Ms Tregaris was spent in addressing a compensable need, but doing the best I can I propose to allow four hours per day from 4 April 2002 until 4 January 2004 when the plaintiff was allowed to go home. Both the plaintiff and the defendants have adopted an hourly rate of $33 for the purposes of calculating an allowance for the past, and I use this same hourly rate. The period is ninety-one weeks and for twenty-eight per hours per week, I allow $84,084.

200 The defendants submit that no allowance for past gratuitous care should be provided beyond 4 January 2004, but it is submitted on the plaintiff's behalf that sixteen hours per week should be treated as compensable.

201 The plaintiff gave evidence of assistance his father has given since the plaintiff was discharged from hospital. He said that his father has done maintenance work around the home for one to two hours per week and that he has assisted the carers for an hour per week. The plaintiff said that his mother helped to do cleaning in the house and helped with the cooking and the ironing. His estimate was ten hours per week. He said that his son gave assistance in the operation of the computer.

202 Whilst the plaintiff has had the services of the paid carers since January 2004, I consider it is reasonable to make some modest allowance for gratuitous care provided since January 2004. It is reasonable to make provision for maintenance assistance that the plaintiff's father has given and it is reasonable to make some allowance for what the plaintiff's mother has done for him over and above the care provided by the paid carers. However, when having regard to work that the mother has done in the house, it is to be borne in mind that the plaintiff's mother is living in the house and it certainly would be unreasonable to treat as compensable all time spent by the plaintiff's mother in routine chores.

203 Again, it is impossible to approach this task with mathematical precision, but I am satisfied that it is reasonable to afford compensation for eight hours per week for gratuitous assistance provided from 4 January 2004 to date. I calculate the allowance for that period at $34,320.

204 Hence, for past gratuitous assistance, I award altogether $118,404.

205 That sum attracts interest, and I award $21,300 by way of interest, rounding the calculation off.

206 (I would have made the same allowance for past gratuitous services and interest had the statute not applied.)

207 There is a claim made for future gratuitous assistance. That claim has to be considered against the background that apart for provision being made for twenty-six and a half hours of care per day, provision is also to be made discretely for future gardening and maintenance.

208 It is submitted on the plaintiff's behalf that it is reasonable to allow sixteen hours per week for future assistance of the type gratuitously provided to the plaintiff since January 2004. The defendants submit that this is an unreasonable claim having regard to the level of paid care for which provision is to be made. That paid care includes provision for gardening and maintenance, for which, of course, there was no past provision.

209 I am not persuaded that it is reasonable to allow any sum to provide for future services gratuitously provided. I so conclude because of the extent of the paid care that the plaintiff will have the benefit of and which I have identified. Future gardening and maintenance

210 The parties are agreed that it is appropriate to make provision in the plaintiff's award for future gardening and maintenance. The parties are also agreed as to the appropriate costing rate. The only issue is the issue of life expectancy. The plaintiff claims $85,932 based upon the life expectancy expressed by Dr Buckley. The defendants advance the lesser figure of $68,230. Since I accept that the plaintiff has the life expectancy opined by Dr Buckley, I award for future gardening and maintenance the sum claimed by the plaintiff, $85,932.

211 (If damages were being assessed at common law, I would have allowed the plaintiff the amount claimed on that basis, namely $121,275.) Additional travel costs

212 A claim is advanced on behalf of the plaintiff for the cost of two carers accompanying him on holidays. Costings have been done on the basis that the applicant go to Cairns, or to some other Australian destination, with the addition of a four week trip overseas to Europe every three years. There is no issue between the parties concerning this claim other than the life expectancy issue. Since I have made a finding in the plaintiff's favour on that issue, I allow the plaintiff the sum of $303,054, as claimed.

213 (If damages were assessable at common law, I would have awarded the plaintiff $427,697, using the three percent tables.) Home modifications

214 There are three associated claims that arise for consideration:

(i) there is a claim for the cost of internal modification of the house where the plaintiff now resides, in the sum of $68,775;

(ii) there is a claim for modifications to the swimming pool, and that claim is for $185,129;

(iii) there is a claim for the cost of installation of a lift to allow access to the pool level, and that claim is for $93,873.

215 These claims, all resisted by the defendants, pose difficult questions.

216 Before he was injured, the plaintiff lived at 62 Gore Avenue, Kirrawee. This home was located with its rear boundary on the Royal National Park and it was adjacent to a creek known as Savilles Creek. Photographs of the property are an annexure to a report of the valuer, Grahame Brook (see Exhibit C, 258 and following). Because that property was on a block described by Mr Brook as being "abnormally steep", it was no longer suitable for the plaintiff once he had sustained his injuries. That much is common ground. Indeed, the unsuitability of that property had the consequence that the plaintiff was required to stay in hospital until some suitable accommodation could be found.

217 Mr Brook's services were engaged in this regard, and in his letter to the plaintiff's solicitors dated 12 January 2004 he reported on the availability and cost of accommodation to meet the plaintiff's needs in the general area. He wrote on 12 January 2004: "Obviously nothing offered suits all or even most of our needs and there will be a great deal of renovation necessary once a property has been found. The most recent submissions which I have received comprise a property at 59 Evelyn Street, Sylvania which is 1076m² with an older style fibre cottage. The vendors are asking $1,075,000 for this site which from our point of view would be land value only and require total redevelopment. 218 Belgrave Esplanade, Sylvania is a more substantial brick home on a level waterfront site of 860m² and includes an inground pool however it is not invalid compatible and would require extensive work. The vendor is asking $1,750,000 for this property. Homes on level suburban blocks of say 600m² to 800m² can be purchased in some of the better areas of the Shire for between $800,000 to $1,000,000 whilst the lesser areas offer properties on reasonable land parcels for between $600,000 to $800,000. In most instances the dwelling would need to be demolished. As for identifying suitable properties I have explained to you the situation whereby the agents sell the property whilst we are talking about it, as a result of which it is extremely difficult putting any firm proposals together. From what I have identified it would appear that it is unlikely that we can obtain a suitable property for complete redevelopment under say $900,000. To purchase a property with the potential to renovate it seems that the market is looking at over $1,000,000 and the better areas from about $1,500,000."

218 What then happened was that the property where the plaintiff now resides at Fernleigh Road was acquired, and it cost just over $1.5 million. The Gore Avenue property was sold for $575,000, so that the added cost of the move for the plaintiff was $1,006,088 (see Exhibit P). The plaintiff claims that additional cost as well as the cost of the internal modifications, the changes in the swimming pool area and the lift installation cost.

219 The defendants claim that those costs cannot be recovered. The plaintiff now has a much more valuable house than before. Moreover, this property was purchased knowing the areas of unsuitability associated with it and it is argued that it is unreasonable for the defendants to have to pay for the further modifications.

220 The costings for the modifications reflect the costings set out in the report of Kengreen Consulting Pty Limited of 8 February 2006 (see Exhibit C, p 181 and following). There is no challenge to those costings as such; the objection is one of principle on the basis previously outlined.

221 I have found this issue to be one of great difficulty because of the way in which the evidence has been left. Plainly, in principle, the plaintiff is entitled to have included in his award the added cost of securing appropriate accommodation reasonably suitable for his particular needs. I would perceive this to be well settled. In any event, see Marsland v Andjelic (1993) 31 NSWLR 162. When one totals the claim which the plaintiff is here making, it is a claim for $347,777 for the modifications plus an additional claim of $1,006,088 (as detailed in Exhibit P). Altogether then, the plaintiff is claiming to be compensated in an amount of $1,353,865. Yet he has the benefit of a better class of property to enjoy, and he has a more valuable capital asset. Dr Morrison submitted the latter feature is irrelevant because he needs the modified property to accommodate his needs for the future, and not for sale purposes.

222 The difficulty in considering the competing submissions in this case is that I do not have the benefit of any expert evidence advanced by the defendants to afford some alternative basis for assessing the reasonable allowance for these heads of damage. I do not have evidence presented by the defendants posing an alternative way and other costings as to how suitably modified accommodation with a swimming pool could have been provided for the plaintiff. I am satisfied that it is reasonable to make provision for a swimming pool.

223 It seems to me that it was reasonable for the plaintiff to look for accommodation in the area where he was accustomed to live. It is plain from the reports written by Mr Brook that properties fronting the National Park were not going to be suitable because they were too steep and that there was a need to look to other areas where the land was more level. He reported that it was "unlikely that we can obtain a suitable property for complete redevelopment under, say, $900,000". What the added cost of "complete redevelopment" would have been has not been the subject of evidence.

224 The defendants have made payments to and on behalf of the plaintiff, and they have been pleaded by way of a defence. Those payments extended to the provision of this current property. There is no evidence as to the extent of the involvement of the defendants in the decisions that were necessarily taken concerning its acquisition, and there is no evidence that the defendants considered the expenditure on this property was unreasonable.

225 The plaintiff was not cross examined about the reasonableness of the claim concerning home costs; the author of the report from Kengreen Consulting Pty Limited setting out the rectification costs was not required for cross examination; and neither was Mr Brook required for cross examination on his reports.

226 With some hesitation, I conclude that it was reasonable of the plaintiff to purchase the present property and that it is reasonable to allow for the cost of internal modifications necessitated by the plaintiff's special needs. Further, I conclude that it is reasonable to allow the plaintiff the cost of the installation of the lift and the modifications to the pool necessary to enable him to utilise the pool.

227 Mr Rewell submitted that if such conclusions were reached by the Court there should nevertheless be a deduction of approximately $500,000 by reason of the fact that the plaintiff has the benefit of a greater asset than he had before, as well as the enjoyment of the more expensive property. This property was not purchased for resale and it is probable that the plaintiff will remain there indefinitely. On the other hand, the plaintiff now has a more valuable capital asset than before his accident, putting aside the cost of the modifications referred to, and, upon reflection, I consider there is merit in Mr Rewell's submission. The plaintiff's home at Gore Avenue was sold for $575,000, and the present home cost $1.5 million. Treating these figures as evidencing the market values of the two properties, the plaintiff now has a property worth almost $1 million more than the property he had before. Whilst I recognise the present acquisition was, in a sense, a forced one, and whilst I also recognise that the plaintiff's enjoyment of his present home must be severely limited because of his disabilities, I consider it reasonable to make a deduction of $500,000 to bring into account these considerations urged by Mr Rewell.

228 In the result, I allow the home modifications in the sum claimed, $68,775. I allow the pool modifications in the sum claimed, $185,129. I allow the cost of the installation of the lift at $93,873. I also allow for the additional cost of the acquisition of home (set out in [218] above), after deducting the sum of $500,000 for the reasons indicated, the sum of $506,088. Wheelchair restraint system

229 A claim is made for a wheelchair restraint system. The amount claimed is $3016. That claim is not challenged. Hence, I include $3016 in the plaintiff's assessment. Additional immediate equipment needs

230 Agreement was reached between the parties that it was reasonable to allow in respect of items other than a wheelchair the sum of $5000 (T 456) under this heading. The claim for a new wheelchair was, however, resisted.

231 The complaint about the present wheelchair is that it is unsuitable and tends to tip, but Mr Rewell has correctly pointed out that the plaintiff is attended by a carer when he leaves home. If there is a need to replace the wheelchair, and the evidence does not satisfy me there is such a need, then adequate provision for this is to be found in the allowance I am about to make under the schedule heading "Wheelchair and related needs".

232 (I would have allowed $5000 under this heading if there was no statutory restraint.) Computer provision

233 Whilst the plaintiff is unable to use his upper limbs, he is able to access a computer either by head control or speech recognition: see the Smith report of 15 September 2004, Exhibit C. It is reasonable to make provision for the plaintiff's computer needs as costed in the Smith report at $10,294 per annum. As I understand it, the only issue between the parties on the claim for the computer is life expectancy. The claim made by the plaintiff is reasonable, and I allow the amount claimed, namely $136,061.

234 (Had the claim been for assessment at common law, I would have awarded $192,021 as claimed.) Motor vehicle

235 It is reasonable to make provision for a motor vehicle for the plaintiff. There will be added expenses in the provision and modification of a motor vehicle suitable for transporting the plaintiff. The defendants contend that the plaintiff should only be compensated for the add on costs and not for the capital costs of the vehicle itself.

236 I do not accept that qualification in the particular circumstances of this case.

237 Had the plaintiff not been injured and been rendered incapable of working, he would have the benefit of receiving a car as part of his salary package. That benefit was lost when he ceased to be employed by Qantas.

238 By reason of the accident and its consequences, the plaintiff has to bear the capital costs of the acquisition of a suitable vehicle from time to time. Hence, in my opinion, it is reasonable to provide for this in the award of damages.

239 The plaintiff has presented costings based on the future annual distance travelled being 10,000, 15,000 and 20,000 kilometres. The plaintiff has scheduled calculations based upon 20,000 kilometres per year, but I think it unlikely that the plaintiff will travel so far on average, and I propose to allow for the cost of 15,000 kilometres per year which I consider to be a more likely usage.

240 According to the author of the report from the NRMA (see Exhibit C, p 235) the weekly cost for the provision of a suitable motor vehicle being driven 15,000 km per year is $258.30. On the six percent tables, I allow $192,175 for the claim under this head.

241 (If the damages were being assessed at common law, I would have awarded $271,215.) Wheelchair and related needs

242 The total annual cost for this is stated at $20,065. The issue between the parties is life expectancy. Having regard to the finding I have expressed on that issue, I compensate the plaintiff for this ongoing need over a period of 30.6 years, and I allow the sum of $287,184.

243 (On a common law assessment, I would have allowed $404,914.) Future home maintenance needs

244 In the course of submissions Mr Rewell indicated that the only issue as to the amount to be allowed for this was life expectancy (T 430). Hence I allow the sum claimed by the plaintiff, namely $164,295, accepting as I do the plaintiff's case on life expectancy.

245 (Had damages been assessed at common law, I would have allowed the claim of $231,868 as presented.) Medical equipment

246 Once again, Mr Rewell indicated that the only issue was life expectancy. It follows that I allow the plaintiff's claim as expressed in the sum of $231,518.

247 (Had the assessment been without statutory restraint, I would have allowed the claim made of $326,739.) Additional replacements

248 Again, there is no issue as to this item other than life expectancy. Hence I allow the plaintiff's claim in the sum of $27,006.

249 (But for the statutory restraint, I would have allowed $38,114 as claimed.) Claim for environment control unit

250 A claim is made for the provision of an environmental control unit. Thus far the system provided for the plaintiff has been unsatisfactory. In fact, two controls have been tried but the plaintiff's evidence was that the equipment has been relatively unsuccessful. However, it does not follow that no effective environmental control system can be introduced, and in his report of 27 January 2006 Dr Smith makes provision for a proposal and provides costings for a system. The capital cost of the equipment and the annual running costs would require provision in the plaintiff's award of an amount, in round figures, of $300,000.

251 Mr Rewell, having drawn attention to the troublesome and unhelpful equipment thus far provided, further submitted that it would be unreasonable to allow this claim when the plaintiff has a carer in attendance twenty-four hours per day.

252 In response, Dr Morrison submitted that the ECU would give the plaintiff some modest degree of independence so that he would be able to change the channel on his television set or alter the temperature in the room without having to wait for the carer to arrive. He further submitted that the provision of the equipment has been recommended by the occupational therapist and, of course, it would replace the inefficient system presently available to the plaintiff.

253 Having reflected on the competing submissions, it seems to me to be reasonable to allow for an environment control system in the plaintiff's award. I accept that it would afford to the plaintiff some degree of independence in his day to day activities and would permit him to do some things for himself without having to wait for the carer to attend upon him.

254 Accordingly, I include in the assessment, the sum of $300,000 in relation this claim.

255 (I would have allowed the same sum on an assessment based entirely on common law principles.) Past treatment expenses

256 These expenses have been met by the insurer of the defendants and are continuing to be met by it. I am asked to publish my assessment so that the necessary adjustment can be made for payments made by the defendants to date. Hence, I am asked to defer directing the entry of a verdict and judgment Ongoing home costs

257 The plaintiff makes a claim for ongoing home costs such as are incurred over and above those costs that have been incurred in the pre-accident home. The additional costs reflect differences in the amounts paid for electricity, water, council rates and house insurance. The plaintiff's claim is that he now spends an additional $59.80 per week.

258 I am not satisfied that this is a reasonable claim. For instance, land valuations may well have increased since the plaintiff moved and there could be a number of factors which account for the increase. Without evidence, other than Exhibit Q, I am not satisfied that this claim has been made out. Fund management

259 The final head of damages advanced is a claim for the provision of fund management. This claim is contested.

260 The plaintiff relies upon evidence that the plaintiff gave that his capacity to trade shares quickly is hampered by his physical disabilities and reliance was also placed upon the report of Mr Borenstein, a psychologist who made an assessment in September 2004. Mr Borenstein considered the plaintiff had an adjustment disorder with mixed anxiety and depressed mood.

261 The plaintiff, too, gave evidence that he is handicapped by depression which affects him adversely once or twice a week for up to four hours (T 39). He said the depression is debilitating (T 40).

262 However, the plaintiff is able to buy shares online, and does so (T 121). He said he is able to manage his share portfolio without assistance, although he would not trust himself to deal with shares in a rushed environment.

263 The report and evidence of Dr Buckley to which I made earlier reference are very relevant to the consideration of this claim. I will not repeat the evidence to which I referred earlier (at [178]), but I am influenced by that evidence.

264 The plaintiff impressed me as an intelligent person who should be capable of looking after his own affairs, and having regard to the opinion of Dr Buckley, whose evidence I accept, I am not satisfied in this particular case that it would be appropriate to make an allowance for fund management. Assessment summarised

265 Accordingly, I summarise the assessment as follows:

Allowance for non economic loss $216,112 Interest on allowance for non economic loss 8,644 Past economic loss 233,920 Interest thereon 42,106 Future economic loss 308,620 Lost superannuation benefits 36,407 Future treatment: General practitioner $22,320 Spinal specialist 1,496 Provision for future surgery 33,740 Provision for renal care 15,713 Provision for hospitalisation for pneumonia 30,266 Provision for urological treatment 7,972 Physiotherapy 5,148 Occupational therapy 29,760 Nursing care 12,019 Dietician 2,003 Podiatrist 5,456 Pharmaceutical costs 191,219 357,112 Case manager 47,000 Future care 5,585,000 Past gratuitous care 118,404 Interest on award for past gratuitous care 21,300 Future gardening and maintenance 85,932 Additional travel costs 303,054 Home modifications 68,775 Pool modifications 185,129 Installation of lift 93,873 Part of additional cost of acquisition of home 506,088 Wheelchair restraint system 3,016 Additional immediate equipment needs 5,000 Computer provision 136,061 Provision of suitable motor vehicle 192,175 Wheelchair and related needs 287,184 Future home maintenance needs 164,295 Medical equipment 231,518 Additional replacements 27,006 Environment control unit 300,000 $9,563,731

266 I publish the assessment to allow consideration of the defence as to payments made by the defendants.

267 Apart from any deductions that may be warranted by reason of payments already made, the amount for which verdict and judgment is to be entered will also require adjustment by making the appropriate reduction for the finding of contributory negligence. Formal findings

268 1. I find negligence proved as against the first defendant and the second defendant. 2. I find contributory negligence to have been proved. 3. I find it just and equitable that the plaintiff's damages be reduced by thirty percent by reason of that contributory negligence. 4. I assess the plaintiff's total damages (before such reduction) in the sum of $9,563,731, subject to such adjustment as is required for payments made by the defendants' insurer.

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