Marlow v Walsh [2007] TASSC 32

Manley v Alexander [2005] HCA 79; South v James Loughran & Sons Pty Ltd & Ors [2003] TASSC 59; Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492, referred to.

Damages - Particular awards of general damages - Tasmania - Head injury suffered 1994 - Minimal physical consequences - Consequential depressive illness treatable but untreated.

Husher v Husher [1999] HCA 47; (1999) 197 CLR 138; Medlin v The State Government Insurance Commission (1994 - [1995] HCA 5; 1995) 182 CLR 1, referred to.

Judgment Number: [2007] TASSC 32

1 By a writ filed 25 November 1997 the plaintiff claimed damages for personal injuries from the defendant arising out of a motor vehicle accident on Fortescue Bay Road, Fortescue Bay on 11 December 1994.

2 By his statement of claim the plaintiff claimed:

"1 At all material times, the Defendant was the driver of a White Mini Moke, VC1869, hereinafter referred to as the Vehicle.

2 The Defendant was driving the Vehicle along Fortescue Bay Road in Tasmania on the 11th day of December 1994.

4 The Vehicle was involved in an accident caused by the negligence of the Defendant.

A The Defendant had been drinking alcohol prior to driving the Vehicle.

B The Defendant failed to keep proper control over the Vehicle.

C The Defendant started to turn a corner and cornered too widely causing the car to slide sideways and lose traction and go into a dirt drain.

D The Defendant failed to control the said Vehicle so as to prevent it rolling or throwing the Plaintiff out of the Vehicle.

E The Defendant failed to install adequate restraints in his Vehicle to prevent injuries occurring to passengers within.

5 By reason of the Defendant's negligence as pleaded the Plaintiff has suffered personal injury, loss, damage and has been put to expense.

The Plaintiff suffered a blow to the head, lost consciousness and suffered injuries including a compound fracture of the skull.

6 And the Plaintiff claims damages and costs to be taxed."

3 By his defence, the defendant admitted pars1, 2 and 3 of the statement of claim, denied pars4 and 5, did not plead to par6 and further pleaded voluntary assumption of risk and contributory negligence in the following terms:

"7 Further, the Defendant says that if the Plaintiff was injured as alleged in the Statement of Claim (which is denied by the Defendant), the Plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it.

PARTICULARS OF VOLUNTARY ASSUMPTION OF RISK

The Plaintiff:

(a) Exposed himself to danger by allowing himself to be driven in a vehicle by the Defendant when the Plaintiff was well aware that the Defendant was intoxicated at the time.

(b) Allowed himself to be driven in the rear of a vehicle which was fitted with neither seats nor seatbelts.

8 Further, the Defendant says that if the plaintiff was injured as alleged in the Statement of Claim (which is denied by the Defendant), the Plaintiff failed to take care for his own safety and was wholly responsible for and materially contributed to his injuries.

PARTICULARS OF CONTRIBUTORY NEGLIGENCE

The Plaintiff:

(a) Failed to exercise sufficient care for his own safety.

(b) Got into a rear of a vehicle where there were no seats or seatbelts fitted

(c) allowed himself to be driven by the Defendant when he was aware that the Defendant was intoxicated."

4 On the weekend commencing Friday 9 December 1994, there was an annual volleyball tournament held at Fortescue Bay attended by a number of people. On the Friday afternoon, the plaintiff travelled in a friend's car the approximately 20-kilometre trip from Port Arthur to Fortescue Bay. To get home on the Sunday afternoon, the plaintiff flagged down the first car that came past him, which was the defendant's. The defendant was driving a Mini Moke. He already had two passengers whom the plaintiff knew. One, Craig Wellard, was in the front passenger seat and the other, Vaughan Lynch, was in the back on the passenger side. The plaintiff got in behind the driver. The vehicle was then driven along the Fortescue Bay Road towards Port Arthur. The accident occurred during the course of that drive.

5 The defendant, according to his answers to interrogatories, had no recollection of the accident. He did not give evidence about it or indeed at all. Only two witnesses did, the plaintiff and the other back seat passenger, Lynch.

6 The plaintiff's recollection was that until the "crash", the drive was uneventful. Describing the accident, he said the vehicle came over a rise and ended up on the wrong side of the road. The vehicle drifted into a drainage ditch. He could see the vehicle was going to crash and so he told the others to brace themselves and then braced himself. The vehicle hit an embankment. The plaintiff was looking at it as the vehicle hit. His next recollection was waking up on the ground, vomiting and feeling a big lump on his head.

7 Lynch's recollection was that the vehicle came around a sharp left hand corner and the back end of the vehicle "must have hit - oh well I say it must have hit corrugation or something, it's arse end got into the gutter, it's pulled the rest of the vehicle in, and it just must have hit a rock or a - or some sort of embankment and it's just come to a stop and flipped over on its side." The photographs of the accident scene show a setting more consistent with the description of the witness Lynch than that of the plaintiff. When the vehicle came to rest, it was on its right side against the embankment on the right hand side of the road. Lynch climbed out, as did Wellard and the defendant. They saw the plaintiff still in the vehicle, just lying there. He was groggy. They pulled him out and someone took him to the local hospital. The defendant, Wellard, and Lynch then righted the Mini Moke and Lynch drove it to Port Arthur. At no stage did the vehicle roll. The plaintiff was not thrown from the vehicle as a result of the vehicle tipping onto its side.

8 The witness Lynch knew the Fortescue Bay Road fairly well at the time of the accident and had seen it three or four months before trial. He said it had not been remade in the intervening period and, if anything, was probably worse now than it was in 1994. He was shown a number of photographs of the road. He described what he saw in the photograph, which became exhibit D10, as "probably the best of the road there ...". He agreed that part of the road there identified was about 3 metres wide. Lynch described the road in 1994 as being "a 100 metres of the road would be really good and the next 200 or 100 metres would be just corrugated or potholes". He agreed it was a really unpredictable road, not difficult, but "horrible".

9 Lynch said no one in the vehicle had been drinking while the vehicle was being driven prior to the accident. The evidence was the vehicle was roadworthy at the time of the accident.

10 The defendant was about 17 at the time of the accident and a provisional driver. At some time on the day of the accident he was breathalysed and returned a blood alcohol reading of .085. While that reading was one in excess of the prescribed level for a driver, there was no toxicological evidence as to what, if any, impact that reading may have had on the defendant's capacity to drive.

11 Counsel for the plaintiff submitted that inevitably there must be a finding of negligence against the defendant. He submitted the defendant was negligent in the driving, management and control of his vehicle. He submitted that "by losing control of the vehicle and allowing it to veer onto the incorrect side of the road and being unable to correct the course of travel ..." the defendant was negligent.

12 The defendant submitted negligence on his part had not been established by the plaintiff. His counsel referred to a decision of the High Court in Manley v Alexander [2005] HCA 79 where the majority, constituted by Gummow, Kirby and Hayne JJ, said at par12:

"But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.

That this was the appropriate test to apply to the defendant's driving was not challenged by counsel for the plaintiff.

13 There can be no dispute on the evidence that the defendant's vehicle, immediately prior to impact with the embankment on the right hand side of the road, was on the wrong side of the road, and the defendant did not control the vehicle such as to prevent the impact. What is unclear is how the vehicle came to be on the wrong side of the road. Did the defendant simply take the corner too widely, hit a corrugation or pothole and lose control; or did he drive on the correct side of the road but hit a corrugation or pothole which caused him to lose control and slide into the culvert? The plaintiff gave no evidence as to how the vehicle came to be on the wrong side of the road, just that it was. Lynch did not actually say how it got there either. His evidence was equivocal as to whether he thought the vehicle was already on the wrong side of the road when it might have hit a corrugation, or whether the hitting of the corrugation caused it to go to the wrong side of the road and then into the gutter.

14 However the vehicle came to be on the wrong side of the road, I accept that at some stage while the vehicle was on the road surface, it hit a corrugation or pothole which caused it to slide into the culvert on the side of the road where it then tipped over. It can be inferred from the evidence as to the defendant's age that he was unlikely to have been an overly experienced driver. Fortescue Bay Road, as described by the witness Lynch, and as evidenced in the tendered photographs, would have presented a challenge to his driving ability. There was no evidence he was speeding, that he was not paying attention to his driving, or that he was driving in any untoward manner at all. However, given the witness Lynch's description of the road, the defendant had to have been aware of the existence of corrugations and potholes and the possibility that hitting one or more might affect his control of his vehicle. He had a duty to drive in such a manner so as to be aware of the state of the road and be able to take precautions to prevent a loss of control arising from that state. He clearly did not take those precautions.

15 The plaintiff also pleaded as a particular of negligence that the defendant had been drinking alcohol prior to driving. The defendant admitted by his answers to interrogatories that he was not completely sober at the time of the accident. I do not, however, accept that fact, and the fact he was breathalysed and produced a certain reading, in themselves are evidence of negligence. It is the impact of that alcohol consumption and the blood alcohol level on the defendant's capacity to drive which is relevant. There is no evidence at all of any adverse impact and there is some evidence to support there was none. The witness Lynch was questioned about his assessment of the defendant's sobriety prior to his accepting a lift from him. He obviously had no concerns that the defendant's capacity to drive was in any way adversely affected by alcohol consumption. That his capacity to drive was unaffected was supported by evidence that prior to the accident the drive was uneventful.

16 The plaintiff further pleaded that the defendant failed to install adequate restraints to prevent injuries to passengers. There were no seatbelts in the area where the plaintiff was and it is difficult, given the type of vehicle this was, to see what sort of restraints could have been fitted. However this asserted failure can only be relevant if, had "adequate" restraints been fitted, they might have prevented the plaintiff being injured. The evidence was the plaintiff was not thrown from the vehicle and was still in it after the accident. The inference from the evidence of the witness Lynch was that the plaintiff was still where he had been sitting. There was no evidence at all that any sort of restraints might have prevented the plaintiff's injury. I am not satisfied that this particular has been made out.

17 I accept that the defendant's failure to properly control his vehicle, such as to keep it on the correct side of the road and prevent its sliding off the road into the culvert on the side, was a breach of his duty of care to the plaintiff and, that as a consequence of that breach, the plaintiff suffered an injury.

18 The defendant pleaded that the plaintiff had exposed himself to danger by allowing himself to be driven in a vehicle when he was well aware the defendant was intoxicated and in the rear of a vehicle fitted with neither seats nor seatbelts.

19 For the defendant to succeed with this defence, he must have established that the plaintiff knew of the existence of the danger to himself, fully appreciated the risk created by it, and voluntarily accepted that risk (see discussion in The Law Of Torts, John G Flemming, 9th ed commencing at 327).

20 There was no evidence the defendant was intoxicated, nor any that the plaintiff either believed he was, or had information from which he could have known he was. There was also no evidence that the plaintiff knew that the absence of an actual seat or seatbelts in the rear of the defendant's vehicle in itself posed a particular risk, given there was a roll bar and side rails which the plaintiff may have used.

21 In his closing submissions, counsel for the defendant did not seek to rely on either of the pleaded bases but referred to other factors not pleaded in a very brief form. He did not at any stage seek to amend his pleadings. The defence as pleaded is not made out.

22 In South v James Loughran & Sons Pty Ltd & Ors [2003] TASSC 59, Evans J correctly identified the law as to contributory negligence when he said at par74:

"The plaintiff will be held responsible for contributory negligence if he has exposed himself to a risk of injury which might reasonably have been foreseen and avoided and the injury he has suffered is within the class of risk to which he was exposed: Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 at 611; Jones v Livox Quarries Ltd [1952] EWCA Civ 2; [1952] 2 QB 608 at 615; Froom v Butcher [1975] EWCA Civ 6; [1976] QB 286 at 291. The test of contributory negligence is an objective one. The plaintiff is held to the standard of care expected of an ordinary reasonable person engaging in the conduct that caused the plaintiff's injury: Joslyn v Berryman; Wentworth Shire Council v Berryman [2003] HCA 34, pars32, 35 and 70."

23 The defendant pleaded knowledge by the plaintiff of his intoxication. There was, as I have said, no evidence of any such knowledge. The defendant otherwise pleaded that the plaintiff had accepted a lift in a vehicle with no rear seats and seatbelts, and failed to exercise sufficient care for his own safety. No further particulars were supplied as to the manner in which it was said he had failed to exercise sufficient care.

24 The driver of the vehicle the plaintiff was travelling in was, in his words, "a young fit fella". The vehicle itself was a Mini Moke. The vehicle was an open vehicle, that is, with no roof at all or sides above about hip height if a person were to be seated in the front seats. There were two front seats. There was what appeared to be a metal frame which ran from one side of the vehicle to the other in the form of three sides of a rectangle immediately behind the front seats. It might be loosely described as a roll bar. From each side running to a point on the chassis at the back, were two further rails. It could be inferred that if anyone were seated in the area behind the front seats they might use the side and top rails to hold on. There were no actual seats in the rear area of the vehicle. There was, instead, a flat area which appeared to be slightly raised above the floor level. From the evidence, that was where the plaintiff and the witness Lynch were seated. There were no seatbelts or any form of restraints in the rear area. There were seatbelts for the two front seats.

25 The defendant's vehicle was clearly not designed to, as a matter of course, carry four seated passengers. Had it been so, there would have been at least four fixed seats. There was no evidence as to the age of the vehicle or whether it was manufactured at a time when seatbelts for all passengers in vehicles became compulsory. However, there were seatbelts for the front seats. The structure of the vehicle provided little or no protection for passengers generally. However, the existence of fixed seats with seatbelts and a roll bar provided a level of protection to those passengers occupying those seats, which was clearly not afforded to anyone seated in the rear, without the protection of either.

26 The plaintiff flagged the vehicle down. He chose to travel in this particular vehicle in the rear area where he did. There was no evidence he had to, and it can be inferred from the fact he flagged down the first vehicle that came, that there were others coming. It was clearly foreseeable that if the vehicle were involved in an accident, any passengers in the rear area of the vehicle were more at risk than those in fixed seats with seatbelts.

27 The plaintiff had travelled into Fortescue Bay along the same road two days before. He had to have had some idea of the state of the road which, in Lynch's words, was unpredictable and horrible.

28 I am satisfied the plaintiff's injuries were in part suffered as a consequence of his own failure to take care for his own safety, in that he got into a vehicle, in particular the rear of the vehicle, with neither seat nor seatbelt, which afforded him little protection in the event of an accident involving impact to the driver's side of the vehicle. As to the extent to which the plaintiff should be found to have contributed to his injuries, I have had regard to the passage in the joint judgment of the court in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494, where their Honours said:

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

29 Given the circumstances of this case, I would assess the responsibility of the plaintiff at 25 per cent.

30 The credit of the plaintiff is a matter which requires comment because the acceptance or otherwise of his evidence in relation to a number of matters impacts on the outcome of his claim. I had an opportunity to observe him in the witness box over an extended period as he gave his evidence. I formed the view from his manner of answering questions that his repeated reliance on a lack of memory was convenient and selective. When it suited him he gave responsive answers. When it did not, he said he could not recall. He was evasive and at times would not concede even the most obvious matters. For example, documents were put to him which he had clearly signed. However, when the contents did not suit him, he had an explanation as to why. For example, with his curriculum vitae he blamed someone else for carrying through information he said no longer applied, despite admitting it was prepared under his instructions. I do not accept that his memory was as faulty as he implied and take the view he regularly manipulated his answers to suit what he knew was required. I have looked, where possible, for evidence from documents and other witnesses to corroborate his evidence.

31 The plaintiff was born on 19 March 1966 and was 28 at the time of the accident. His parents divorced when he was 11. His father was in the Air Force, which resulted in a fairly nomadic lifestyle for the family. The plaintiff left school in 1982 at the age of 16. Between then and the date of the accident, he held a number of short term jobs. He worked for one company for six months in 1985, as a storeman in Canberra for almost a year in 1988, casually as a function waiter at a hotel in Canberra for three months in 1989, at which time he attended a TAFE college course and obtained a certificate as to attendance and completion of a barperson and waiting course, for about four or five months with a landscape gardener in 1991 doing paving, and for about a year as a kitchen hand in about 1991.

32 A document was tendered showing that for an unspecified period in about April 1992, the plaintiff attended a TAFE college in Canberra. The course was identified as "Automotive Spare Parts" and there was an indication of passing a subject. However, no detail was provided as to the duration of the course, whether it was completed, and just what the document actually meant.

33 Between August 1992 and February 1993, the plaintiff was employed as a trainee with the Parks and Gardens Service in the Australian Capital Territory under a government job skills program. While engaged in that trainee position, the plaintiff attended a course at a TAFE college. He produced a Statement of Attainment in Urban Horticulture dated 11 December 1992. His counsel also tendered an undated certificate as to the plaintiff's attendance at a training program on the operation, safety and maintenance of a ride on lawn mower, a certificate as to completion of the job skills program dated February 1993, and a reference from the plaintiff's supervisor during that period.

34 The only evidence of the plaintiff's level of income prior to the accident was in the form of some group certificates which showed the plaintiff's gross taxable income in the financial year ended 30 June 1990 was $1,078.73 and for the year ended 30 June 1993, $6,987.42.

35 In 1992 while still living in Canberra, the plaintiff separated from a de facto partner and shortly after decided to move to Tasmania. A friend had told him there was "heaps of work" and a good lifestyle to be had at Port Arthur. The plaintiff spent some time with his father in Victoria after finishing the parks and gardens position in February 1993, and then moved to the Port Arthur area late in 1993. There was no evidence of any employment between February 1993 and when the plaintiff came to Tasmania later in the same year. I am satisfied that between leaving school in 1982 and when he came to Tasmania late in 1993, the plaintiff did not have constant employment, but worked sporadically in largely unskilled positions, subject to obtaining some training in horticulture over a six month period before leaving Canberra.

36 On arrival in Port Arthur, the plaintiff went to stay with Doug and Leslie McIntyre at Radnor near Port Arthur, and worked on their 11 acre property in exchange for his board and lodging. His work involved mowing, tree pruning and some fencing. When he first started, he was working five or six hours a day, but that reduced to two to three when he got on top of it. He said winter was very quiet. The plaintiff was asked what he did in the winter and he replied, "Not a great deal for them. I ended up going and getting a job on a crayfishing - or did tucker run on a crayfishing boat". He described the "tucker run" as going out to learn the trade and for your work you were fed at the end of the day. He did that for about six months, giving thought to becoming a crayfisherman. The plaintiff's evidence was this crayfishing work was during the winter of 1994.

37 The plaintiff said that in 1994, he formed the view that there seemed to be a good opportunity for him to set up a landscaping/ground maintenance business around the Port Arthur area looking after holiday homes of which there were a number. He was asked what he intended to do about it and he said, "Oh I would - wanted to, yeah, gather myself some tools, and I would have put out some pamphlets or something, and tried to get myself started from there." He said he intended to do this as soon as he acquired the basic tools, a lawnmower and a brush cutter and a rake and a shovel. Up until the time of the accident, the plaintiff had done nothing to give effect to this plan, but had simply continued to work on the McIntyre's property as before. There was no evidence he made any effort to get any other paid employment during this period.

38 Prior to the accident, the plaintiff joined in local community activities. He joined the local cricket team, playing only three games before the accident. He joined a volleyball team, playing the first Sunday of the month during summer. He met people through those activities and also at the local hotel. He enjoyed surfing, swimming and snorkelling.

39 There was no evidence of any taxable income earned by the plaintiff from when he ceased work in the Australian Capital Territory in February 1993 to the time of the accident, 22 months later. I am satisfied the plaintiff was content with the lifestyle that he came to in Tasmania, which was basically to work for food and lodging. That conclusion is consistent with the plaintiff's employment history prior to moving to Tasmania. While in his evidence the plaintiff said he had ambitions to be a crayfisherman and to set up a landscaping and maintenance business, he had done nothing conclusive to pursue either ambition and I conclude he was unlikely to ever do so on any formal and commercial basis. His future as far as employment was concerned post-December 1994, absent the car accident, was likely to be akin to what it was prior to the Tasmanian move, but confined within what would be available to him within the relatively small community in and around Port Arthur. The likelihood of his earning a regular taxable income was minimal, and that of his earning any more than a small amount at all, low.

40 After some initial attention at the local medical centre after the accident, the plaintiff was taken to the Royal Hobart Hospital. A document entitled "Report on Patient", which was part of exhibit P10, read as follows:

"On arrival at the Royal Hobart Hospital the patient was eye opening, spontaneous movement, spontaneous speech, however abusive to staff. Plain lateral skull x-ray demonstrated a fracture of the right parietal temporal bones. This was depressed. There was a small stellate wound over the fracture and therefore the fracture was deemed to be compound. The patient was transferred ... to The CT scanner ... . CT scan demonstrated depressed skull fracture of the right parieto temporal region with some sub extra dural blood and contusion of the right parietal lobe. ..".

"Robert underwent an uncomplicated right parietal craniotomy on the 11th December 1994. Post operatively the patient did extremely well, was kept on antibiotics post operatively. No signs of infection at discharge, wound healing well. The patient did not have any demonstrable cognitive deficit at discharge. The patient did have some a defect on the right side of his head due to the fact that part of his right temporalis muscle was resected at operation. During his admission Robert complained of increasing deafness in his right ear. Examination of his right ear revealed some fluid behind his right ear drum. This is probably related to his right sided fractures and the plan is to have the patient reviewed at ENT Clinic on the 20th December 1994 at 3.00pm. Until that time the patient is to be continued on antibiotics."

41 Another document within the same exhibit set out that when the surgery on the plaintiff's head was done, the dura was not seen to be penetrated and after removal of bone fragments, bone was replaced with plates and screws.

42 There was no record of any other injuries. The plaintiff was discharged from hospital on 16 December 1994, that is five days after the accident.

43 The plaintiff said he began noticing headaches on going home from hospital. He also felt a little unbalanced and described a bit of heaviness on the right side of his head. The bandages on his head came off about a fortnight after his surgery, leaving him with a huge scar. His hair grew back, but he can still feel the plate and screws through the skin on his head. Because there is little flesh left under the skin, the screws occasionally catch on the skin and make little popping sounds. He does not like lying on the right side, but described no other discomfort arising.

44 As to the headaches, the plaintiff described headaches over the entire period since the accident which could last from ten minutes to half a day and which could occur twice a day or once every couple of months. The plaintiff was asked whether he had sought treatment for his headaches. He said he was seeing a doctor at the time, that he was supposed to see Dr Ireland but "had a bad experience when I went to see Dr Ireland" and that caused him to shut down and not go for any further treatment. He gave no explanation as to what that experience was. At no stage since has he apparently sought any other medical help in relation to these headaches.

45 According to a report from Dr Ireland dated 7 October 2001, she saw the plaintiff twice. The first time was on the date of the accident and the second time was 12 months later. On the second occasion, she noted he had made a good physical post-operative recovery, although appeared depressed. She prescribed an antidepressant. There was no apparent complaint of persistent headaches. The plaintiff went back to the same surgery in September 1997, and then on four occasions between 30 November 1997 and 13 June 2001 on unrelated matters. The only other attendance was on 29 November 1997 when he saw a locum who noted he was suffering a "dull heavy feeling" over the right side of his head that was constant, but worse with reading and exercise, and that he had been depressed after the motor vehicle accident, but had not been lately. The locum also noted a report from the plaintiff that though anxious, he was feeling detached. It is apparent from this report and one of Dr Francis Watkins that the plaintiff has not been averse to obtaining medical advice for other conditions from time to time, and even travelling to Hobart for that purpose.

46 The plaintiff described continuing partial deafness in his right ear, continuing tinnitus involving ringing in his ear and a feeling or sensation of burning on the right side of his head when he undertook any physical activity. He described the sensation as being as if the blood got hot, and said it was enough to make him sit down and stop what he was doing. In particular he noticed this if doing heavy lifting on a hot day.

47 When the plaintiff was discharged from hospital, he was prescribed anti-epileptic drugs, I infer to prevent any possible seizures, and antidepressants. He said he stopped taking both after about three months because he said they made him more depressed. He did not seek advice about this move or any alternative medication to address the difficulties he described. He took a natural remedy for the tinnitus, but said he stopped that after six months because he could not afford it. He did not describe seeking any medical advice to address the difficulties with ongoing tinnitus or deafness nor any intention to do so.

48 There was a significant dispute at trial as to just what the consequences of the accident were for the plaintiff. He claimed to have suffered a significant change in his personality and to be largely unable to work or look after himself. He sought significant general damages and damages for lost earning capacity and future care as a result.

49 The plaintiff, on leaving hospital, returned to live at the McIntyre's property. For the first three months he said he did little more than sleep. He was asked if anyone provided him with care and he replied, "Not professionally, no not even unprofessionally." The McIntyres then asked him to leave their property. He did so, moving to live with a John Vanderlist, where he stayed for about eight months to a year. He then reconciled his relationship with the McIntyres and moved back to their property.

50 He said he did not do much for the McIntyres, and Mrs McIntyre had to chase him out to do some work. He said he became depressed, he felt down, he felt he was not worth anything and he was inferior. He described this feeling of inferiority as ongoing. He could not relate to what people were doing. He said he felt safer inside, and just spent time watching television, using his playstation and just thinking.

51 At some stage after the plaintiff went home from hospital to live at the McIntyres and when he returned there, the plaintiff also spent a period of about six months living with his father in Victoria.

52 The plaintiff described going to the pub to make himself feel better, spending more money than he should, and then feeling worse. He only talked to people if he knew them and was more easily affected by alcohol than he believed he used to be. While prior to the accident he enjoyed female company and had girlfriends, he had had no relationship since, and from the point of view of sexual activity, no longer felt as aroused as he used to.

53 Following the accident he said he had to stop diving for abalone because, if he got more than his body length below water, his right eye felt like it was going to pop out and it was painful. Notwithstanding this complaint, the plaintiff has maintained for a number of years up to the trial various fishing licences.

54 The plaintiff was asked about any continuing problems with balance. He said that when he is on a boat he is called "the clutz", something Leslie McIntyre confirmed. The inference was this meant he was clumsy. He said he used to go out regularly on the McIntyres' boats in the summer. He described a number of other ongoing problems. These included a lack of concentration when doing intricate work such as his building of a scale model boat, the feeling of heaviness on the right side of his head, the tinnitus, and an inability to use a computer. He said he no longer played cricket or volleyball, no longer dived, surfed or swam, and pursued no other interests. He could drive a car and occasionally went fishing or put a cray pot in with the McIntyres, but that was all.

55 As to the inability to use a computer, he said he tried to do a computer course when he stayed with his father and he suffered more headaches trying to concentrate on the screen. The evidence suggests this visit was in 1995 or maybe 1996 and there was no evidence of any attempt since to try using a computer or to seek an explanation as to why a headache produced by use of a computer might be accident related.

56 The plaintiff initially said he had applied for no paid work since the accident, but then said he had applied for work with the local council. Until January 2004, he received an unemployment benefit, but said he was never sent to a job interview. Over the years he has done some work unpaid, but has never been able to do it for much more than a matter of hours. He did not believe he could work now because he did not know if he would get out of bed in the morning to go to work. He did not feel he could do any work which involved climbing or heights because of what he said was the "dizziness and stuff". No other evidence was given about dizziness having been suffered. The plaintiff completed a car licence renewal in 2003 in which he said he did not suffer from any problems with balance.

57 The plaintiff described having no friends and having an erratic memory. He continued to live in a one bedroom unit on what was the McIntyres' property but which was now owned by his friend, Vanderlist. He was not able to look after the unit. He did nothing and had dirty clothes all over and heaps of unfinished things. He did not have a washing machine, did not like to go out much and would not go to a laundromat. When asked why he would not go to the laundromat, he said he might see people he did not know there and did not particularly like the people who ran the business. He only shopped at the Port Arthur shop because he knew the people there and it meant he did not have to leave the peninsula.

58 The plaintiff sustained a moderately severe compound depressed fracture of the skull in the right fronto-parietal region. When he was discharged from hospital, he was to be reviewed by an ENT surgeon and was to see his treating neurosurgeon, Mr Liddell. He did not go to see Mr Liddell as arranged. The plaintiff next saw him in April 1998 for the purpose of a report requested by his solicitor. There is no evidence the plaintiff saw any other neurosurgeon in the interim. Mr Liddell examined the plaintiff in 1998 and determined the neurological examination was unremarkable and that "his hearing appeared satisfactory - at least grossly." Mr Liddell, having however been told that the plaintiff continued to experience symptoms such as some deafness, some ringing in his right ear and some heaviness on the right side of the head, suggested that a formal assessment by an ENT surgeon might be appropriate and that:

"In addition, there may be some merit in investigating him further, with cranial and cervical MRI scans, and perhaps, a formal neuropsychological assessment. Although the benefit of the latter would quite likely depend upon the extent of the information available, as to his pre-morbid condition."

59 There was no record of any complaint to Mr Liddell about continuing headaches.

60 In March 1999, Mr Liddell wrote a further report, which appeared to be in response to a specific query about epilepsy. He said that if, as he assumed, the plaintiff had had no seizures since the accident, there was a less than 3 per cent chance of his developing epilepsy. There has been no suggestion of any seizure before or since that report.

61 In August 1998, the plaintiff was reviewed by an ENT surgeon, Mr Ryan. He noted mild deafness and the tinnitus as a consequence of the head injury.

62 The plaintiff was seen by Dr Ian Sale, a psychiatrist, on 1 February 1999. He concluded that it seemed reasonably likely that there may have been an organic personality change in the plaintiff as a consequence of the head injury, but that firm diagnosis would require a reliable third party account from someone who had known the plaintiff before and after the accident. At the request of the plaintiff's solicitors, he spoke to Mrs Leslie McIntyre in July 2000 and wrote a further report. In that he noted her description of the plaintiff in the following terms:

"Ms McIntyre was able to confirm that there had been significant changes in Mr Marlow's demeanour since the accident. She described him as beforehand having been a cheerful, conversational and animated individual.

Following the accident he appeared to her to have lost drive and initiative. He had become far less conversational. He needed to be prompted to do things including attending to personal hygiene. His areas of interest had contracted sharply. He often seemed to be tired. Although he still has some friendships, he stays in his home for much of the time, having little interest in social activities unless prompted.

Ms McIntyre had noticed that Mr Marlow seemed to have problems with balance and at once [sic] time observed him to fall over. He also complained of frequent headaches and of ringing in his ears. It also seemed to her that his memory was far poorer."

"On the further information available, it seems probable to me that your client suffered a significant head injury that has led to a marked personality change. He has become isolative, lacks drive, has a reduced capacity to interact socially, and may have become subject to odd, even delusional beliefs.

...

Whether or not treatment would be useful is impossible to estimate. However, a trial of a low dosage anti-psychotic agent would probably be warranted. Unfortunately, this is unlikely to happen as your client has little insight into his situation.

...

Although treatment might ameliorate these difficulties, given the organic causation and the time that these difficulties have been present, his prognosis would have to be regarded as poor."

63 The plaintiff was seen by a Dr Martin Rose, a consultant psychiatrist, on 17 August 2001. He expressed the view that the plaintiff had developed a Major Depressive Disorder as a consequence of the accident. He recommended that the plaintiff should be receiving anti-depressant medication. He concluded that with adequate treatment, the depressive illness would significantly improve and may even completely resolve. However, the plaintiff's attitude to treatment made that impossible. Without effective treatment the prognosis was that the plaintiff would remain depressed. The plaintiff would not see a psychiatrist for treatment or take medication. It was recommended there be neuropsychological therapy.

64 Dr Rose was also of the view that there was only a mild incapacity for employment and noted the main problem as being a lack of availability.

65 The plaintiff was then seen by consultant neuropsychologist Mr Ian Fourez in August 2002 and November 2005. On those occasions Mr Fourez conducted certain tests to determine if there had been any loss of cognitive function. In the several months prior to the 2005 assessment, the plaintiff was asked to abstain from use of marihuana. It was also recommended that he take anti-depressants. This arose because in late 2004 Mr Fourez had suggested that there were, in his words, three main contenders to account for what appeared to be a change in the plaintiff's behaviour since the accident. He identified these as that the plaintiff suffered from clinical depression, he had sustained an organic personality disorder, or he suffered from the effects of marihuana.

66 During the period of requested abstinence from marihuana the plaintiff was regularly tested. The last test was conducted on the morning of his assessment by Mr Fourez in November 2005. All tests save the last one showed negative for marihuana. Mr Fourez's notes of his meeting with the plaintiff on 29 November 2005 record that the plaintiff told him he had stopped using cannabis in February 200, save for an instance when he had been to a friend's funeral about a month before. The opinion of Mr Andrew Griffiths from Forensic Science Service Tasmania was that cannabis would not have been detected unless it had been taken within the last 15 days. The inference was the plaintiff was continuing his marihuana use.

67 The plaintiff did not take the anti-depressants it had been recommended he take.

68 The results of the psychological testing conducted in 2002 and 2005 were largely the same, save for a noted improvement at the time of the second in some aspects of verbal recall and memory. Mr Fourez found that overall neuropsychological results were not indicative of significant cognitive deficits aside from a mild reduction in attention. He went on to say in his 2002 report:

"Affectual changes in the direction of reduced spontaneity, limited initiation, and impaired emotional expression have been cited in conjunction with right hemisphere lesions. Thus Mr Marlow's behavioural presentation could be considered consistent with right hemisphere dysfunction. There are however no reliable methods to establish this aside from clinical impression and, importantly, third party reports. The written testimonials of friends and family members that you have sent me certainly corroborate such changes in Mr Marlow from before to after the accident. Alternative explanations might involve the potential role of depression or the effects of chronic marijuana use."

69 Mr Fourez reported in 2005 that the plaintiff was better groomed than he had been in 2002 and seemed alert and impressed as being more responsive. He said that whereas he was flat in his affect and lacking initiation in 2002, he seemed more animated and interactive, particularly as the session in 2005 progressed and the plaintiff relaxed. He conceded it was possible this was a consequence of not using marihuana.

70 For the purpose of his 2005 report, Mr Fourez was asked if he believed Mr Marlow suffered from an organic personality disorder. He responded:

"I initially raised this possibility because Mr Marlow displayed a lack of drive and poor initiation that were not accompanied by complaints of affectual changes. In fact his presentation suggested a degree of emotional indifference and lack of concern. There is now clear evidence of a mood disorder, which I believe makes the diagnosis of major depression more probable."

He accepted as a reasonable conclusion that the symptoms from which the plaintiff suffered were substantially as a consequence of the motor vehicle accident.

71 Leslie McIntyre, Vaughan Lynch and Sharon Thompson had all known the plaintiff to varying degrees prior to his accident and all had contact, again to varying degrees, after it. A consistent theme arising in their evidence was that the plaintiff was sociable and outgoing before the accident and had become withdrawn after it.

72 When the plaintiff was cross-examined, he was shown three portions of surveillance tape. As to the second, it displayed a date 1 February 2004. It showed a group of people including four or five males, a female and a child and a couple of dogs. One male and the female at one point appeared to be dancing. It was put to the plaintiff he was the male dancing. He responded, "I don't even recognise it as being me". He repeated twice when pressed, "It could be anybody" and said he had no recollection of the incident and did not recognise the area where it was taken.

73 The third tape displayed the date 11 May 2006. It showed a male, the plaintiff agreed was him, with a dog, taking washing to the youth hostel and then going to and remaining at the local hotel. The male is seen to enter the hotel shortly before the tape displays the time 13.50 and to still be there at 15.21. The male in the third tape is clearly the same male as that the plaintiff did not recognise as himself in the second tape. The hair and beard are the same, the walk is the same and the dog is the same. I conclude that even if the plaintiff was being truthful when he said he did not recognise the scene nor remember the day depicted in tape two, he was attempting to mislead the court by refusing to acknowledge the obvious, namely that he was the male shown to be doing a dance of sorts in tape two. That does not assist his credit.

74 It further does not assist his credit that he is shown in tape two to be interacting quite animatedly in a group of five adults and a child without any apparent hesitation. This was contrary to his evidence about the limited level of his interaction with people.

75 As to the third tape and the plaintiff's evidence relating to it, the following conclusions can be drawn. The plaintiff is able to drive and to independently purchase items at the local shop. On this day he took one bag of washing to the youth hostel and appeared to have no concern about taking his dog for a walk in the bush nearby before he went to the hotel. The plaintiff was greatly upset by the death of his father in 2002. The plaintiff, over the period of some 37 minutes he was observed at the bar in the hotel, was in the company of three other people for almost the entirety of the time. He was observed to be talking almost constantly during that period to the people on either side of him and to the barman, both while that barman was serving and when he came out to stand beside the plaintiff in the bar itself. The plaintiff was obviously animated. He knew the lady he spoke to because she was a former neighbour, but suggested he did not know the man he identified as Jason very well. The plaintiff's animation in the form of physical gestures occurred at different times during the portion of the tape scene and I do not accept it solely occurred as a result of the plaintiff's consumption of alcohol.

76 I conclude the plaintiff, in his evidence generally, was attempting to minimise his capacity post-accident to interact with other people in social settings and that he was clearly able to do that without apparent difficulty, at least on the occasions shown on video surveillance. His attempt to distance himself from the activities shown in the tapes and to explain his animation by the consumption of alcohol suggests a deliberate attempt to misrepresent his situation.

77 The preponderance of expert evidence is that the plaintiff has suffered from a depressive illness since, and as a consequence of, the motor vehicle accident, as opposed to an organic problem. There was a suggestion any such illness may have resulted from the death of his father. However the reports of lay witnesses, combined with the medical opinion, satisfies me the problem existed prior to that. I accept that this depressive illness is a consequence of the 1994 accident. The difficulty with assessing the impact of this depressive illness on the plaintiff for the purpose of a damages award is, however, complicated by a number of factors. These are that the plaintiff has, in my view, exaggerated the continuing effects upon him of it and has refused to accept medical advice as to treatment which, in Dr Rose's view, would probably be largely successful.

78 I accept that the plaintiff's head injury has impacted upon him in a number of other ways. He has the scar on his head which is covered by hair. There is no evidence of pain associated with this, but some ongoing discomfort. As to the headaches complained of, while common sense dictates the plaintiff is likely to have suffered from headaches for a period after the accident, there was no complaint to his general practitioner of any persistent headaches 12 months after the accident and no evidence of any organic cause. Further, despite his complaints in his evidence, the plaintiff takes no medication and has sought no advice about them. I cannot accept, in those circumstances, that any headaches from which the plaintiff might suffer now are necessarily related to the accident.

79 I accept that the plaintiff has suffered a mild loss of hearing in his right ear and tinnitus in that ear. However there was no evidence either condition impacted to any significant degree upon the plaintiff. He takes no medication for the tinnitus. As to the sense of heaviness on the right side of his head and a burning or tingling sensation on the right side of his head during some physical activity (particularly in hot weather), these are both matters which have been raised with medical practitioners but for which no organic cause appears to have been found. It was never suggested he did not suffer from these symptoms.

80 As to problems with dizziness and one referred to with the plaintiff's right eye, there was no evidence of a complaint about either to any medical practitioner over the years since the accident. The plaintiff's application for renewal of his licence in 2003, already referred to, suggested there was no problem with dizziness (or indeed for that matter with depression).

81 There was evidence of some reduced capacity to concentrate on activities.

82 While the accepted difficulties have all impacted upon, and continue to impact on, the plaintiff's life since the accident, medical opinion suggests that treatment, at least for the depressive disorder, is available and likely to be helpful but which the plaintiff simply refuses to have. Indeed the plaintiff will not see a doctor for advice only apparently when sent for assessment by his solicitors, and will take no medication or treatment.

83 The plaintiff's counsel outlined the damages sought in a schedule. The heads of damage identified by that schedule were general damages, past wage loss, loss of future earning capacity to age 65, past and future superannuation entitlements, past treatment and rehabilitation expenses, and past and future care pursuant to Griffiths v Kerkmeyer as per the particulars of claim. Counsel for the plaintiff, when preparing the schedule, was unaware that the last-mentioned head of damages by reference to that case was no longer available in this State although an amount for actual expenditure could be sought.

84 In his particulars of claim, the plaintiff identified this head of damages as being for pain and suffering and loss of amenities of life, and sought the sum of $120,000. At the close of the hearing, counsel sought $150,000, although the damages were simply described as general damages. It was not suggested the head of damages in the particulars was different from that in the schedule. The plaintiff was 28 at the time of the accident. What employment he had prior to that time involved outside physical activity and he was involved in local sport. He suffered a head injury which required surgery but which saw him discharged from hospital to home within five days. He appears to have suffered no other significant direct physical injury. From a physical point of view, leaving aside issues of headaches and tinnitus, he physically recovered relatively quickly, having no further treatment after leaving hospital. He is now 40. He has suffered from a depressive disorder for some years for which he refuses to seek treatment. There has, no doubt as a consequence of this depressive disorder, been an adverse effect on the plaintiff's sex life.

85 The amount sought by way of damages under this head by the plaintiff is, in my view, excessive, having regard to the nature of his injury, the level of disability which has flowed from it and the lack of treatment between the date of the accident and now, and the lack of any need for treatment in the future. I accept that a head injury is not a trivial matter. However, the mere fact of a head injury without regard to its consequences does not justify the level of damages sought. I allow the plaintiff $25,000 by way of general damages.

86 The claim was divided into two, that is for past loss and future loss.

87 In the plaintiff's schedule of damages, the first portion of this claim to cover the period from the date of the accident to 8 December 2006 amounted to $110,690. It was calculated by reference to a net weekly wage of $354.80 over the entire period which was then reduced by half. The plaintiff's counsel tendered as evidence two 2006 awards, the Horticulturists Award and the Miscellaneous Workers Award. I was unable to extract the figure of $354.80 from either of those. An enquiry to counsel revealed that the figure of $354.80 was referred to in the plaintiff's particulars. In that document the figure was shown as being equal to the average of wage rates taken from each of what I infer to have been earlier versions of the awards in evidence, less tax.

88 The claim under the second head, which it was suggested could be used as a guide, amounted to $106,930. That was calculated in the schedule provided by applying a 7 per cent multiplier for 25 years (629) to an amount of $200 per week and allowing 15 per cent for vicissitudes.

89 Counsel for the plaintiff submitted in relation to the plaintiff that:

"He clearly had a capacity for work prior to this accident. His earning capacity as proven by the financial records, such as they are .. was fairly modest. But that doesn't mean that he was confined to that sort of earning capacity for the rest of his life ... ."

The financial records produced disclosed the taxable income of the plaintiff at $6,987.42 (or about $135 gross per week) in 1993 and $1,078.73 in 1990. On the plaintiff's own evidence, it seems by choice he had no taxable income in the financial year ended 30 June 1994, that is the last year prior to the accident. The only source of income since the accident appears to have been social security benefits of some type.

90 In Husher v Husher [1999] HCA 47; (1999) 197 CLR 138, Gleeson CJ, Gummow, Kirby and Hayne JJ said at 142:

"The trial judge assessed the amount to be allowed to the appellant in respect of past and future economic loss in accordance with what he took to be the principles established by the Court of Appeal of Queensland in Seymour v Gough ([1996] 1 Qd R 89). In particular he calculated the amount to be allowed for loss of future earning capacity on the basis that the appellant would probably have received only half of the profits of the partnership. Under this head of damages the appellant was awarded a sum based on that half share of profits, adjusted to reflect various contingencies, including the possibility that some other business arrangements might have been made."

91 In Medlin v The State Government Insurance Commission (1994 - [1995] HCA 5; 1995) 182 CLR 1, the court dealt with a university professor who was injured in a car accident. He returned to work and resumed his duties the following year. However, four years later he retired early because he said the consequences of the accident had rendered him unable to perform his duties to the high standards he required. The court held:

"... that the plaintiff was entitled to damages for loss of earning capacity, by Deane, Dawson, Toohey and Gaudron JJ on the ground that effects of his injuries were a causative influence in the premature termination of his employment because their effect was to decrease his ability to discharge the duties of his appointment and a contributing cause of his desire to devote more time to research; hence the premature termination of his employment was the product of the diminution of his earning capacity; and by McHugh J on the ground that, because the act of retirement was not unreasonable and the reasons for it were the result of the plaintiff's injuries, his loss was causally related to the defendant's negligence."

Their Honours Deane, Dawson, Toohey and Gaudron JJ went on to say at 6:

"For the purposes of the law of negligence, the question whether the requisite causal connection exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience. And that remains so in a case such as the present where the question of the existence of the requisite causal connection is complicated by the intervention of some act or decision of the plaintiff or a third party which constitutes a more immediate cause of the loss or damage. In such a case, the "but for" test, while retaining an important role as a negative criterion which will commonly (but not always) exclude causation exclude causation if not satisfied, is inadequate as a comprehensive positive test. If, in such a case, it can be seen that the necessary causal connection would exist if the intervening act or decision be disregarded, the question of causation may often be conveniently expressed in terms of whether the intrusion of that act or decision has had the effect of breaking the chain of causation which would otherwise have existed between the breach of duty and the particular loss or damage. The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent decision, the defendant's wrongful act or omission is, as between the plaintiff and the defendant and as a matter of common sense and experience, properly to be seen as having caused the relevant loss or damage."

92 In the present case, the plaintiff's employment history prior to the accident is clearly a relevant factor. His demonstrated earning capacity prior to his moving to Tasmania was minimal. He worked sporadically and appears to have made no concerted effort to train himself fully and obtain permanent employment. In the period of what appears to be in excess of 12 months, the plaintiff lived in the Port Arthur area prior to the accident, he did not seek paid work at all. Instead, by choice, he worked for food and/or board. He gave evidence that he planned to move to Tasmania and save enough to buy some land and put a house on it. He also gave evidence he planned to set up a business looking after the gardens of holiday homes in the area. He also thought of becoming a crayfisherman.

93 There is no evidence he actually did anything to further any of these plans prior to the accident. His evidence that he would have started the gardening business "as soon as I acquired the basic tools, a lawnmower and a brushcutter and a rake and a shovel" was unconvincing. The evidence of Mrs McIntyre was clearly that such help could have been provided if asked for.

94 I conclude that the plaintiff was unlikely to ever have pursued business or employment opportunities such as to earn himself a regular and, perhaps in the eyes of most people, satisfying income. I conclude his work future, absent the accident, would have been one that might have involved sporadic, but irregular, employment earning him little, and that it is likely he would have remained largely, or even wholly, dependent on social security for the rest of his working life.

95 As to past loss, given the findings I have made, it is impossible to make a calculation by reference to any precise level of income. At best, any assessment must be based on the probability that if he earned anything at all, it would average out at a small weekly amount in the region of $50 per week. In the circumstances I assess the past loss to 8 December 2006 at $31,000. As to future loss, similar comments apply. The plaintiff has a capacity for work and I am not satisfied the capacity he had pre-accident has been markedly affected by the accident. Using an estimate of say $75 per week as a likely earned income, I assess the future loss at $40,000.

96 The amount claimed for past and future superannuation was $25,000 based on much higher incomes than I have been prepared to allow for. The best I can do under this head is use as a guide the methodology employed in the plaintiff's particulars, as opposed to the actual calculations. In doing so, I allow an amount of $3,000 under this head.

97 An amount of $3,788.05 was claimed. As to the amount of $1,757, I accept from the timing of the expense and, despite the lack of direct evidence, that all of this relates to treatment sought which is related to the accident. As to the sum of $2,031.05, while there is no direct evidence at all as to when the assistance which is charged for was provided and the details of what it relates to, I accept that it is more likely than not that it was accident related. It is unlikely, as suggested by counsel for the defendant, that such services would have been provided to someone suffering from depression unrelated to the accident. I accept this allowance.

98 The amount therefore allowed under this head will be $3,788.05.

99 There is no evidence the plaintiff requires ongoing treatment for any condition arising from the accident. There was evidence of treatment recommended in relation to depression. However there was also evidence to support the conclusion that the plaintiff will not undertake any such treatment. In those circumstances no allowance should be made for future medical expenditure.

100 As to pharmaceutical expenses, there was no evidence the plaintiff was utilising medications or herbal treatments for any condition it could be said was accident related or that he was likely to.

101 The third aspect of this claim arose having regard to the evidence of Ms Freeman. Ms Freeman was an occupational therapist who visited the plaintiff at home on 16 February 2006. Ms Freeman determined that the plaintiff required home care in the form of assistance with housework, clothes washing and shopping. The problem with this assessment is, however, that it was based largely on the reports of the plaintiff to her about what he could and could not do and the state of his living quarters as she observed it.

102 In contrast to this, there was evidence the plaintiff could, and did, take his own washing to the youth hostel to be washed, that the only reason he did not do it at home was because his washing machine had broken down, that he was quite capable of physical activity which would allow him to clean his home and that he was capable of doing his own food shopping. There was no evidence from the plaintiff that he was unable to do the things that Ms Freeman suggested should be paid for, nor that he was likely to need and have to pay for such services in the future.

103 There will be no allowance under this head.

104 By way of summary, I allow the following to the plaintiff: