PETTIGREW v WENTWORTH SHIRE COUNCIL

Judgment 1HIS HONOUR: Nature of Proceedings The plaintiff brings proceedings in negligence against the defendant in respect of an accident which occurred on 19 July 2006. The plaintiff alleges that while driving in a northerly direction in Channel Road, Curlwaa, NSW, he lost control of the vehicle which he was driving as he was negotiating a left-hand corner. The plaintiff alleges that the cause of him losing control of the vehicle was the presence of substantial quantities of gravel on the road which had been placed there by servants of the defendant. The plaintiff's vehicle rolled and he suffered serious injuries. 2The particulars of negligence, relevant to the claim are as follows: (a) Covering the roadway with gravel. (b) Failing to advise drivers of the roadway of the presence of gravel. (c) Spreading gravel on the roadway without placing warning signs warning motorists on the approaches to the bend where the accident took place of the presence of the gravel. (d) Placing gravel on the roadway in circumstances where there were no signs placed on the roadway to warn drivers of the altered conditions of the roadway. (f) Failing to place warning signs on the roadway to warn road users including the plaintiff of the presence of gravel on the roadway. (g) Failing to advise or alert road users as to the presence of gravel on the roadway. 3There was no issue that the defendant had the care and control of Channel Road. The defendant admitted that it had undertaken edge repair along that road between 15 - 17 July 2006, but otherwise made no admissions in relation to the presence of the gravel. It asserted that due to the minor nature of the repair work, no sign was necessary and that the amount of gravel used to complete the works was so small that it was not reasonable for it to anticipate that the gravel would come onto the road so as to make it dangerous. 4The defendant raised the following particulars of contributory negligence: (i) Failing to move with care in the area in which he was. (ii) Driving at a speed excessive in the circumstances. (iii) Failing to keep a proper lookout. (iv) Driving too close to the edge of the road. 5In its pleadings the defendant relied upon ss 5F, 5G, 5H and 45 of the Civil Liability Act 2002 (CLA). Factual background 6Unless otherwise indicated, I find the facts relating to the accident to be as follows. 7The plaintiff was born in May 1968. He attended school until year 11. After leaving school he was an apprentice motor mechanic and gained a trade certificate some four years after commencement. He worked as a motor mechanic for the Oakley Council for four years and Midas Exhaust Springvale for 12 months. 8Thereafter the plaintiff spent a year doing LPG conversions. He worked with A & R Holden Wreckers at Dandenong for four and a half years as a motor mechanic. In 1999 he commenced employment with the Royal Automobile Club of Victoria. He left that employment late in 1999 to relocate to Mildura and worked with Mildura Auto Works as a mechanic until 2001. 9While working for Mildura Auto Works, the plaintiff was off work for nine months and underwent bilateral carpal tunnel operations in respect of his hands and wrists. When he returned to work after the operations, he was dismissed. He was out of work for about six months. 10In 2001 he commenced employment with the defendant as a maintenance fitter and worked there until February 2004. He left that employment because his father had become ill with lung cancer and he wished to spend more time with him. His father died in February 2007. 11At the time of the accident, the plaintiff was living in Channel Road, Curlwaa, a short distance to the south of where the accident occurred. He had lived at that address for about five years with his partner of nine years, Ms Donna Lawrence. At the time the plaintiff was spending a week at Curlwaa and the balance of the time in Melbourne with his father. It was known that his father's illness was terminal. 12On the day of the accident, the plaintiff had been back from Melbourne for approximately 3 - 7 days. The plaintiff had driven over the road where the accident took place approximately six times during that period and at no time had he observed any road works or gravel on the road. He believed that the last time that he drove over that piece of road was two days before the accident. 13Channel Road is 5.8 kilometres long. It is a sealed, two-way, local, rural road which travels generally north from the Silver City Highway for a distance of about 3.2 kms before turning west and south. The road services farming/rural properties in the Curlwaa region of New South Wales. The accident site is about 740 metres north of the intersection with the Silver City Highway. The plaintiff's residence at the time was about 400 metres to the south of the accident site. 14Travelling north along Channel Road on the immediate approach to the accident site, the road follows a short, straight and generally level alignment with a transitional entry into the left curve. The road pavement is constructed of a 3 - 5 mm chip bitumen bonded gravel (spray seal). It has an overall width of approximately 5.4 metres along the straight approaches and widens to approximately 6.3 metres through the left curve. The curve radius was between 47 and 50 metres. 15At the present time the curve has a 45 km/h advisory speed sign. At the time of the accident, the advisory speed sign was 40 km/h. This advisory speed sign was located 25 metres south of the southern tangent point of the subject curve (i.e. from the commencement of the straight leading into the curve) and approximately 139 metres south of the accident site. The speed limit for the location at the time of the accident was 60 km/h. 16The point where the plaintiff's vehicle travelled over an embankment and crashed into a pile of logs was located on the eastern side of the road adjacent to an earthen access driveway, which was illustrated on the site plan attached to exhibit B (the joint experts report). The southern face of the embankment was located approximately 52 metres north of the curved apex and approximately 6 metres north of the northern tangent point of the subject curve. 17At the time of the accident the plaintiff was driving a 1990 model Holden VN sedan, Victorian registration SFL 693. Nothing turns on the identity or type of vehicle. Some aspects of the accident are agreed between the parties, i.e. that upon negotiating a left-hand bend approaching the intersection of Channel Road with Poplar Road, the plaintiff lost control of the vehicle which then rolled off the bitumen, over an embankment and stopped upright on a pile of timber logs. The vehicle rolled at least once. The accident occurred at approximately 5.15pm. Poplar Road intersects Channel Road approximately 30 metres to the north of where the accident occurred and runs in an east-west direction. 18There was not a high volume of traffic on the road. The plaintiff's estimate was 50 vehicles a day, including approximately five semi-trailers from a nearby fruit packing co-operative. During the three hours that Mr George (the defendant's expert) was present at the accident site in 2009, he observed 15 vehicles pass. The estimate of Ms Lawrence was approximately 20 vehicles per day, but this estimate was made hesitantly with considerable qualifications. 19The plaintiff said that it was his habit to drive through the bend at 40 - 50 km/h. He said that he had not often driven through the bend at a speed in excess of 50 km/h. He said that the bend could be taken comfortably at a speed of 50 km/h, but that at 60 km/h "it felt like you're going to break traction and just lose the corner" (T.23.31). 20The plaintiff said that at approximately lunchtime on 19 July 2006 he observed a council truck in the vicinity of the bend where the accident took place. He said that he recognised the truck as that which was used by Des Huddleston, an employee of the defendant. In his evidentiary statement, the plaintiff described the truck in considerable detail. It is not clear, however, whether he was describing what he saw on the day of the accident, or whether he was describing the truck which was normally driven by Mr Huddleston. The plaintiff said that he made these observations from his house. He said that he saw Mr Huddleston standing near the truck, as well as two other persons. 21In evidence the plaintiff said that Mr Huddleston was not a friend. He was someone whom the plaintiff knew from the time when he worked for the defendant. The plaintiff said that approximately an hour later on the same day, two other employees of the defendant, drove past his house in a green ute. The ute had council markings on it and was usually used by Ray Egan. The plaintiff identified those persons as Darryl Wade and Ernie McAlister. The plaintiff only knew these persons from his time working for the defendant. The plaintiff said that he spoke briefly to these two persons and during that conversation Mr McAlister said "We're going up the road to see what the boys are doing". The ute was travelling in a northerly direction towards the bend. The plaintiff said that when he looked up he could still see the truck in the vicinity of where he had earlier observed it. 22Under cross-examination the plaintiff estimated the distance between his house and where he saw Mr Huddleston to be approximately 300 metres. He said that he had a fairly clear view of the truck, although there may have been a few bushes obscuring it. He could not see all of the truck, but could see the top with its flashing lights and the sign. He was not able to see what was on the back of the truck. He said that he was able to identify Mr Huddleston because of the hat which he wore, which was not Council issue, but was like a cowboy hat. 23The plaintiff was cross-examined to the effect that he was not telling the truth when he said that he had seen all or any of those persons on the day of the accident. It was put to him that those persons had not been in the vicinity of his house or the bend on that day. It was put that as of January 2006 a different kind of truck was used by the defendant for road works and that the truck which Mr Huddleston previously used had been sold. In other words, he could not have seen Mr Huddleston's old truck which he described in detail at the bend on the day of the accident. If he had truly seen Mr Huddleston and a truck, it would have been the new style of truck which was used for road-works and laying gravel (exhibit 3). It was suggested to him that he had given this evidence to try to assist his case. 24Mr Huddleston gave evidence and a statement by him dated 13 May 2011 was tendered (exhibit 2). In his statement, Mr Huddleston agreed that he had performed pothole and edge repair work in Channel Road Curlwaa in July 2006. In doing so he used the new truck which had been purchased in January 2006. This truck required only one person to do the job which had previously been done by three persons. In carrying out that work, Mr Huddleston said that he only sprayed aggregate (gravel) on the section of the road which required repair. He did not spray the trafficked section of the road. 25He said that he undertook edge repair work at the bend where the accident took place. He said that he only sprayed the gravel over a distance of about 10 metres, and that it was about 400 - 600 mm wide to cover potholes which had formed along the shoulder of the road. He said that he was the only person who performed the work and that no other council workers spoke to him at the time. He said that after he had completed the work, he swept the edge of the roadway clear of any loose stones. He said that he did not erect a sign because there was no need, there being no gravel on the road. He said that while he was aware that gravel could be moved by vehicular traffic, this movement was usually minimal. 26By reference to the photographs which had been taken of the accident site, he said that he did not expect the gravel to have moved across the roadway to the extent shown in the photographs. 27In his evidence at trial Mr Huddleston said that he could not remember what day he did the work on the bend where the accident occurred, but he did so in July 2006 and that it took him about an hour and a half. When shown the photographs of the gravel on the road, he responded: "A bit much stone there for my little work I done. I don't know where the stone come from." (T.143.29) "Q. So one of the things is putting gravel on the road would make it dangerous wouldn't it? A. It would, but not the amount I put it on it." (T.148.12) 28Under cross-examination it became obvious that Mr Huddleston had no actual recollection of having worked on the bend in July 2006 but only a general recollection of having done work at that location in Channel Road on a number of occasions. On each occasion when he performed the work, it was generally the same, i.e. repairs to the edges and filling in potholes. The first time he was asked to try to recollect what work he had done in July 2006 was in about May 2011 when the statement was prepared (T.154.30-155.8). He was apparently approached by Mr Wade, shown a photograph of gravel on the road and told that a car had rolled at the bend in July 2006. On the basis of his recollection, the defendant prepared exhibit 2 which Mr Huddleston signed. 29He consistently denied that the gravel shown in the photographs could have come from his work. He was, however, unable to explain how that amount of gravel could have come onto the road surface (T.160.35-.47). He suggested that "it could have come off another truck, too, other than a Shire truck" (T.162.39). When that answer was tested, the following exchange took place: "Q. Have you ever seen trucks go down there spilling gravel all over the place? A. Not spilling gravel all over the place, no, grape juice and orange juice. " (T.163.1) 30Mr McAlister gave evidence and a statement signed by him on 13 May 2011 was tendered (exhibit 4). He denied that he had spoken to the plaintiff at any time since the plaintiff ceased employment with the defendant in February 2004. He said that he would not have been travelling as a passenger in a ute being driven by Mr Wade since he worked in a different part of the defendant's organisation and was responsible for weed control, not road maintenance. 31Under cross-examination he agreed that May 2011 was the first time that he had been asked to try to recollect what happened in July 2006. He said that the inquiry had been made of him by phone and that he had been asked whether he had been at the scene of an accident. He could not remember who had made the inquiry. 32He said that it was most unlikely that he would have driven with Mr Wade because Mr Wade was not in charge of him. He was definite that he would not have been driving in a utility in Channel Road with Mr Wade, particularly not in Ray Egan's green ute. Although Mr McAlister did not have any recollection of what he was doing in July 2006, he was definite that he would not have been in a utility in Channel Road at that time because there was no reason for him to be there. 33Mr Wade gave evidence and his statement of 13 May 2011 (exhibit 5) was tendered. In his statement Mr Wade said that edge repair work was undertaken along Channel Road in July 2006. He confirmed that the new truck was purchased in January 2006 and that thereafter, the defendant would only have used that truck to undertake routine maintenance and patching work. He confirmed that Mr Huddleston was the only employee of the defendant who used that truck. Mr Wade denied that he had seen or spoken to the plaintiff on 19 July 2006. He denied that he had inspected any edge repair work on that day. He said that if he were inspecting or viewing work, he would not have travelled to the site with Mr McAlister. He said that he had not spoken to the plaintiff since the plaintiff ceased working for the defendant in February 2004. 34In his evidence at trial, Mr Wade said that in July 2006 his position with the defendant was that of a Supervisor of Roads. He had been employed by the defendant for 29 years. As a Supervisor, he did not physically do the work but checked work that other employees had performed. He identified a document which formed part of exhibit E (documents produced by the defendant in answer to a subpoena) as a daily running sheet which he had signed. That document was dated Monday 17 July 2006 and appeared to relate to work performed by Mr Huddleston on that day. On its face, the document seemed to indicate that Mr Huddleston had laid 500 square metres of road mixture on that day. When he was questioned about the circumstances in which he signed the daily running sheet, Mr Wade said: "A. Oh, when the people go out and do the work they bring these completed sheets back in stating how much work they have completed during the course of that day and I sign-off on it." (T.174.31) 35In cross-examination Mr Wade said that he did not know where he was on 19 July 2006 and that he could have been in Channel Road. He also agreed that he could have been driving Ray Egan's green ute. He agreed that he had only been asked to remember the events of 19 July 2006 in May 2011. He agreed that stopping for a few moments to say hello or good day to someone was not something he was likely to remember after five years had elapsed. 36When asked what the figure 500 on the daily running sheet relating to Mr Huddleston meant, he said: "A. That would mean for the time he was on that job that day he would have completed roughly around 500 square metres of cracking, edging, pothole repair, whatever he was doing on that day. " (T.179.4) 37When shown the photographs of the road and gravel upon the road, taken after the accident, he agreed that the photographs showed an excessive amount of gravel on the road surface. 38As this evidence makes clear, there was an issue between the parties as to whether the plaintiff had seen Mr Huddleston at the bend in Channel Road on 19 July 2006 and whether he had seen and spoken to Messrs McAlister and Wade on that day when they were travelling in a green utility heading north in Channel Road. 39The only direct evidence of how the accident occurred comes from the plaintiff and Warren Gaunt. In his statement, the plaintiff said that at about 5.15pm he was going to the nearby town of Dareton to get some bread and milk. As he pulled out of his driveway and turned left into Channel Road, he saw Mr Gaunt approximately 50 metres away and gave him a lift. He picked Mr Gaunt up to the south of the speed advisory sign. 40In his statement (exhibit F), the plaintiff described what happened next: "32 As I approached the corner where the accident took place, there is a speed advisory sign. As I got to a point which is shown in photograph number 7 in Mr Axup's report, I noticed gravel on the roadway. The gravel spread across the entire width of the roadway. It was fine gravel, which I recognised as 3mm chip. I recognised this from my work with the Council when on a number of occasions, I observed that being kept in the Council yard. 33 The colouring is quite similar to the road. 34 As I proceeded towards the corner, I was surprised to observe there was a large volume of gravel on the roadway which had not been apparent to me as I approached it. 35 I was travelling at approximately 50 km/h. As I approached the apex of the corner of the bend the rear of my vehicle commenced sliding to my right or the offside of the vehicle. I attempted to correct by turning my wheels to the right in the same direction as the skid. After a short period of time I felt my wheels grip and the vehicle was then spun back to the left, or to the nearside, spinning 180 degrees, so that when my vehicle left the roadway I was travelling backwards over an embankment on the opposite side of the road and it rolled over and ended up back on top of its wheels on top of a woodpile. 36 I am well aware from my experience of driving with gravel on the roadway is dangerous. I was well aware that the corner where the accident took place was a dangerous corner. If I had been alerted or had realised the amount of gravel and the distance over which the gravel was spread, I would have reduced my speed considerably or I would have chosen to take another route to the shops." 41The plaintiff's evidence as to how the accident occurred was given by reference to certain photographs which were taken by Ms Lawrence. These photographs showed substantial amounts of gravel on the road in the vicinity of the bend. The gravel is the darker material on the road surface. Ms Lawrence explained that the batteries in her camera were flat and had to be replaced. At the time she did not realise that this would have an effect on the time and date which would appear on the photographs. She said that the photographs which show the date 19 July 2006 were in fact taken at approximately 8am on 20 July 2006 and the other photographs were taken approximately 5-6 days later, on two days following the discharge of the plaintiff from hospital. She said that the photographs taken on the later occasions still showed substantial quantities of gravel on the road, which had not been removed. The photographs which she took on those occasions comprise exhibit C. Ms Lawrence said that the state of the road depicted in the photographs taken on the morning following the accident, was the same as how the road appeared the previous evening when she had observed the accident scene. (T.122.4) 42The evidence of the plaintiff on that issue was somewhat different. By reference to photograph "PO3" in the second report of Mr Axup, the plaintiff said: "Q. Was that gravel there on the day of your accident? A. That gravel was. Q. Can you tell us if it looked like that or if it was somehow different on the day of your accident? A. It didn't look like that. On the day of the accident it looked like - there was that much gravel on there it looked like bitumen, it looked like the road. Q. Can you describe that, what did it look like to you? A. It was an even layer of gravel. The only thing that let me know it was any different was it was a little darker than the rest of the road. Q. Was it a straight line across the road or what? A. Yes, it was." (T.28.33) 43In relation to how the accident occurred, the plaintiff's evidence was: "Q. The photograph at P03 is just past the speed advisory sign and you have told us that it was the gravel over the road and it was just dark and looked like the bitumen. How far away had you noticed that? A. It wasn't until - I was probably 10 metres before I got to it that I saw it. Q. And did that cause you any concern? A. Well, no, not really at the time because I didn't think it was gravel, I thought it was road. Q. When you say road, do you mean bitumen? A. Bitumen, yeah. Q. What speed were you doing? A. 50ks top, 40 to 50ks. Q. Did you enter the gravel area? A. Yep. Q. What happened when you drove on to that area? A. As soon as I got on to the gravel area you have to turn left to go into the bend, and-- Q. How did you realise it was gravel as distinct from bitumen? A. It wasn't until I turned the wheel that I realised it was gravel. ... Q. Can I show you P03 and you can see in the centre a line that is where the gravel commences in the middle of the roadway? A. Yes. Q. Is that about where it commenced, according to your recollection? A. Yes. Q. Can you just draw a line across the road on the original, just a single road to show where it commenced? A. (Witness complied.) Q. You have drawn a line on P03 across the roadway. Having crossed that section or that part of the roadway, how long before you commenced to turn your wheels or something else occurred? A. It was only a couple of seconds after I got on to the gravel that I had to steer around the corner. Q. And what happened? A. As soon as I went to turn the car wasn't turning at all, it just went straight, it was like there was no control in it. Q. What happened to the front and the back of your vehicle? A. I turned the wheel of the car, still heading straight. Q. Which way did you turn the wheel? A. Turned it left. The car still headed straight. Q. Did that give you a surprise? A. Yes. Q. When did it occur to you you were on gravel? A. As soon as the car kept going straight when I turned it. Q. So that you turned your wheel to the left and what happened to the rear of your vehicle? A. The back end started to slide out to the right, so I tried to correct it and then it did nothing and then gripped and flipped me around. Q. When you say it did nothing? A. The car. Q. The car did? A. It was still sliding. Q. And it made no difference what you did with the steering wheel; is that right? A. Yes. Q. Did you apply at brakes or anything like that? A. No. Q. Then what happened? A. I tried to steer the opposite way so it would stop sliding and the front wheels must have just gripped and the car flipped around. Q. How far had you travelled before you say the front wheel must have gripped? A. How far, probably 50 metres. Q. Then when the vehicle flipped, what happened then? A. We just sort of turned around and started sliding on an angle backwards, sideways and backwards. Q. So now the rear of the vehicle is now heading in a northerly direction; is that right? A. Yes. Q. And when the vehicle had gone around, if one is in the driving position had the rear of the vehicle gone to the right or the left? A. It went around to the left. Q. So originally it went to the right? A. Yep. Q. Then it came back and went right around to the left? A. Yep. Q. How far, if you are able to tell us, did you travel backwards, as it were? A. I think it would have been 150 metres, around about, 100. I'm not sure about that distance, but, yeah, about 150. Q. Did this all take very long? A. It took a few seconds." (T.29.49 - 32.16) 44Under cross-examination, the plaintiff described the accident as follows: "Q. As I understand the sequence of events, you picked up Mr Gaunt and you then proceeded along Channel Road in a northerly direction? A. That's correct. Q. And at some point the vehicle you were driving didn't respond as you expected it to? A. That's right. Q. Are you able to say what that point was? A. Well, as soon as I went to turn around the second bend. As soon as I turned my steering to take the second bend. Q. Do you know how far it was from where you picked Mr Gaunt up to the point where the car first failed to respond as you expected it to? A. I don't know exactly. I'd say around 100 metres, 150. Q. (Exhibit G shown.) The red circle represents the speed advisory sign, is that right? A. That is correct. Q. The red cross represents the place where you saw the truck, is that right? A. Yes. Q. And then the black line, what does that represent? A. That was where I left the road, and ended up. Q. Are you absolutely certain? A. Yeah." (T.71.47 - 73.14) "Q. When you attempted to steer the vehicle I understood your evidence to be that it just kept going straight ahead, is that right? A. It started to turn but it didn't, like, I turned the steering wheel to turn a corner and is slightly turned but still slid. HIS HONOUR: The gesture he made was a gesture which is consistent with turning a steer wheel to the left. Q. Is that correct? A. That is correct, yes. SHELDON Q. And this was at a point just beyond the speed advisory sign, was it? A. Yes. Q. And your estimate of the speed you were doing immediately before that was somewhere between 40 and 50 kilometres an hour, is that right? A. Estimate, yes. Q. Having turned the wheel you suggest that you had no response from the vehicle for a distance of about 50 metres, is that right? A. That is an estimate, yes. Q. To be fair to you I should say that the rear of the vehicle stepped out to the right, is that correct? A. Yep. Q. There was then a regaining of traction in the front of the vehicle? A. No. What happened, because it started to slide out to the right I started to turn to the right so I didn't lose control of it and then it grabbed on the front and spun around. Q. And from that point you were travelling backwards? A. Well, sort of backwards and sideways a bit. Q. And you travelled in that configuration for about 150 metres? A. Yes. Q. Did you apply your brakes in that 150 metres? A. No. Q. I take it you didn't accelerate? A. No. I was just hoping it would, that it would slide and stop. But it didn't stop. Q. 150 metres is a long way? A. I know it is, it was like I was on marbles. Q. You say you were travelling sideways and backward at that stage? A. Sort of, yeah. Probably on a 45 degree angle. Q. But you were leading with the rear of the vehicle? A. Yeah. Q. And in that configuration you left the road? A. Yes. " (T.81.41-82.47) "Q. And as I understand what you have said both in court and in your statement, you considered this corner to be a corner that was somewhat tricky to negotiate, even in good conditions. Is that right? A. No, it wasn't, as long as you didn't speed it was all right. Q. You knew there was a speed advisory sign, didn't you? A. Yeah. Q. And you knew that this was 40 kilometres an hour, wasn't it? Is that right? A. Yes. Q. Your evidence would suggest there's really no possibility that you were travelling below the speed advisory sign. Would you agree with that? A. Yes. Q. And it was obvious to you before you got to it that there was a change in the surface of the road? A. No, there wasn't. No, it wasn't. Q. It was a different colour, wasn't it? A. Yeah, but it just looked like bitumen. It looked like they had fixed the road up better than it was. Q. But you had seen nothing going on? A. But I saw the truck there. Q. But this was over an extended length, wasn't it, this bitumen? A. It was halfway through the bend so I only saw it when I was basically on top of it. Q. But it would have been obvious from a distance back, wouldn't it? A. No. Like I said, it was halfway through the bend. Q. You say there was quite a stark difference in colour between the old road surface and what you thought was the new road surface; is that right? A. Yeah. Q. And that difference in colour would have been obvious to you from some distance away, wouldn't it? A. No, not really. That's what I mean, I didn't see it really until I was 10 metres from it and then right on top of it. Q. But even 10 metres from it, given the speed you were doing, it would have been possible to slow down considerably, wouldn't it? A. If I had have thought it was necessary I would have. Q. You didn't look at your speedometer, did you? A. No. Q. Your estimate of your speed is just based on a feeling, isn't it? A. Yes. Q. Given that you had seen a truck there, did it occur to you that there might have been work done on the road? A. No, I wasn't thinking about it, I was just thinking about getting to Dareton and getting the milk and getting home. Q. Your approach to this corner would always be to take care and ensure you weren't travelling too quickly? A. I only take as much care on that corner as any other corner. Q. So it wasn't particularly the concerning corner to you in general? A. Not if I wasn't speeding, no. It felt - like that's why I say I was only doing 40 or 50 because the speed I was approaching the corner felt comfortable. Q. Did you ever take trouble to check your speedometer against the warning sign when you were driving through that corner other than on this day? A. I never checked it on that day. Q. I realise you say that. A. Yeah, I had a few times, that's why I know if I took it at 60 it got a bit ugly around the corner. Q. Have you still got exhibit C in front of you? A. Is that C? Q. Can I just take you to photograph 25 which is on page 13. If you had seen that situation as you approached, would you have recognised that as being consistent with there being some gravel on the road? A. Yes. Q. And would that have caused you to drive at a different speed? A. Yeah, I would have backed off a bit for that, yeah." (T.87.19-89.1) 45The plaintiff was cross-examined as to where he left the road: "Q. And was there a time when you were unable to say where you had left the road? A. Yes. Only because I couldn't recognise the, the pictures, the detail in the pictures. Q. I'm sorry? A. I couldn't recognise the detail in the picture when I, when I couldn't do it, when I couldn't recognise it." (T.75.4) The plaintiff said that he had not been present at any time when Ms Lawrence took photographs. "Q. To come back to the sequence of events while you were in the car, I understand you to agree that there was a period during which you had been unable to say where you left the road and where you lost control. That's right, isn't it? A. Yeah, because I couldn't recognise it from the photos, yeah. Q. But at some point that changed, did it? A. Well, yeah. Q. What was that point? A. It was where I could, where I had pointed out certain landmarks in the photos that I hadn't recognised. Q. And are you able to say which photographs it was that enabled you to identify landmarks so as to say where it was you lost control and where you had gone off the road? A. I knew where I lost control, I just couldn't recognise the positions where I went off the road." (T.80.16) 46By reference to those exchanges and other evidence at T.80-81, I have concluded that the plaintiff now has no clear recollection of where he first lost control of the car and where it moved before going over the embankment and rolling onto the woodpile. The evidence which he gave at trial and when providing particulars, appears to have been largely a reconstruction. In reaching that conclusion, I do not wish it to appear that I am making an adverse credit finding against the plaintiff. I am sure that the plaintiff now genuinely believes that his reconstruction of events is correct. However, as became apparent from the analysis by the experts, the plaintiff's assessment of where he left the road was incorrect. 47Mr Gaunt was not able to add anything as to how the accident occurred. He described the speed at which the vehicle was travelling as "normal". He said that the road looked normal before the accident. He agreed that the car slid for a while before it rolled over. 48Following the accident, the plaintiff and Mr Gaunt were able to get out of the car. Although the plaintiff was shaken, he did not think that he had been injured. Two children approached the car and the plaintiff yelled out to them not to bother calling anyone because "we were all right". The plaintiff did not look at the road surface but walked home. Subsequently the plaintiff's car was taken to his house. Neither the plaintiff nor Ms Lawrence was able to say how the car got back to the house. 49Upon returning home, the plaintiff with the assistance of Ms Lawrence washed blood from his face, drank some beer and rested. The plaintiff said it took a couple of hours before he started to really feel pain. He said: "A. Well, I was feeling battered because I had been through the rollover and I was expecting that, but after I think it was about an hour and a half it felt like someone was kneeling on the side of my head pushing it into my collar bone. That's when I got Donna to take me to the hospital." (T.89.23) The blood to which the plaintiff referred came from cuts to his head. 50While he was still at home, the plaintiff observed the police drive past his house. He then walked back to the accident scene and spoke to the police. Neither the plaintiff nor his partner called the police. He said: "A. No, I wasn't going to call the police because I didn't think they needed to be called unless someone was injured and going to hospital. I felt bruised but I didn't think I was as broken up as I was." (T.41.48) 51The plaintiff was breathalysed and produced a low reading. The plaintiff said that while he was speaking to the police officers at the accident scene, a truck travelling on Channel Road in a southerly direction appeared to skid and almost left the road causing the plaintiff and the two police officers to move out of its way. The plaintiff described the truck as a semi-trailer carrying oranges in crates. 52Because the pain was increasing, the plaintiff and his partner attended the Mildura Base Hospital at about 7.30pm. He was kept at the hospital overnight and the next morning was taken by air ambulance to the Alfred Hospital in Melbourne. There, x-rays including CT and MRI scans were taken of his neck, head and back. These investigations revealed damage to discs in his neck and damage to his thoracic spine. He was discharged from the Alfred Hospital on 24 July 2006 wearing a cervical collar. 53When conservative treatment failed to effect any improvement, the plaintiff was readmitted to the Alfred Hospital on 14 September 2006 and underwent a posterior instrumental fusion at the C5/6 level on that date. On 12 October 2006 he underwent an anterior cervical decompression and fusion at the C5/6 level. He was discharged from the Alfred Hospital on 14 October 2006. Despite the operations being successful, the plaintiff has continued to experience pain in his neck and back. He has not returned to any paid employment. 54In June 2008 the plaintiff and his partner moved to Bendigo. The plaintiff said he had become very short tempered which led to him and his partner separating in November 2008. The plaintiff then moved to his mother's house in Noble Park, Melbourne. In August 2010 the plaintiff and his partner reconciled and presently reside together at Frankston in Victoria. 55Two experts in motor vehicle crash analysis were called, Mr Axup on behalf of the plaintiff, and Mr George on behalf of the defendant. Each had considerable experience in accident investigation. Both experts prepared a joint report (exhibit B) dated 30 April 2012. 56There was almost no disagreement between the experts (T.188.1). They agreed that loosely packed gravel, such as was depicted in the photographs would have a co-efficient of friction of between .45 and .55 and would produce a critical speed range of between 53 and 62 km/h in respect of the curve. That speed range would be lower if the vehicle was being accelerated or braked. This meant that any speed at or above the critical speed, could cause a vehicle to leave the road. 57The experts concluded that the specific location where the plaintiff's vehicle left the road could not be ascertained conclusively. They agreed that it was possible that the vehicle left the roadway immediately prior to it entering the embankment. They formed this opinion based upon two of the plaintiff's photographs - 050 and 016 in exhibit C. They agreed that these photographs depicted apparent continuous scuff marks travelling between the eastern edge of the sealed road pavement, over the gravel shoulder and into the embankment. 58Mr George provided the following explanation for how the plaintiff's vehicle came to leave the road at the point nominated by him and Mr Axup. "WITNESS GEORGE: Your Honour, it is a different, it's a different phenomena here where the vehicle leaves the road. It is not trying to negotiate a bend. If the vehicle is over-steered on the bend then, and as described my understanding is that the rear end went out to the right, the driver attempted to correct that and it went into an opposite over-steer. So this, all this is, is the result of a, an opposing yaw. So typically what happens is the vehicle goes into an initial yaw, one way or the other. In my experience as a crash investigator a typical, and this is actually taught in doctrine, a typical result is a back off over-steer where the driver, not accustomed to the rear end sliding out, backs off the accelerator and steers off to the loss of control and the vehicle goes into an advanced opposite yaw which is usually unrecoverable. So my understanding is that the vehicle is said to have rotated around 180 degrees and gone off toward with its back leading at some sort of angle, so this here would be consistent with that. HIS HONOUR: Putting it in somewhat simpler terms, is what you are saying this; although the road is straightening at this point in fact what has happened is control has been lost some distance further back and the car has basically been, even though it may have been on that straight or straighter portion of the road, out of control in a yaw state at that point when it starts to leave the road? WITNESS GEORGE: Yes. If these are the results of that, then practically the entire clockwise yaw manoeuvre, that is the secondary yaw manoeuvre, would have been occurring on the pavement, on the sealed pavement and, where there was gravel, and, and you would expect to see some sort of footprint of that." (T.191.3-.33) 59Mr Axup did not necessarily agree that there would be some sort of footprint visible on the road: "WITNESS AXUP: It is pretty typical of the secondary over-steer on most sealed payments. Where you have loose aggregate on the pavement you may not get it because of the low friction value, but it is pretty typical. Most of the instances you see on country highways leave you a very distinct and very heavy set of tyre marks. HIS HONOUR: And that is regardless of whether the driver braked or not? WITNESS AXUP: Yes. Because the vehicle is rotating and therefore its wheels are in fact sliding across the surface and leaving the compound behind it. HIS HONOUR: But you say because of the gravel on the road that may not be the case here? WITNESS AXUP: It may not be. It may be a function at the time that the vehicle went off, there may have been marks where the tyres have swept the aggregate. But given the duration of time and vehicles passing through the site they would be obliterated very quickly." (T.191.49-192.17) 60The experts agreed on the following: "Q. Is it agreed what the general practice in the industry for the placement of signs was in July 2006 in relation to road works of the nature undertaken by council at the time of this accident ... A. It is agreed that the general practice for road works is to follow the guidelines as set out in AS 1742.3 (1996) and SAA HB81.6 (1998)." 61The experts explained that response at T.196.33. Page 11 of exhibit A set out part of those guidelines as follows: "Paragraph 3.7.2 of AS 1742.3 - 1996 states: The WETAR, SLIPPERY, SOFT EDGES, ROUGH SURFACE, GRAVEL ROAD, LOOSE STONES and LOOSE SURFACE signs should be used to warn road users of conditions which render a surface of the roadway or its edges temporarily hazardous. The signs should be erected at least 30m before the beginning of the hazard or at a greater distance where warranted by prevailing conditions. The SLIPPERY sign (T3-3) may be used to warn of a slippery condition caused by water, ice or loose material on the road surface. In the latter case, the sign Loose Surface (T3-14) should be used in conjunction with the Slippery signs." (Examples of the signs referred to were set out in exhibit A.) 62The following was at p 12 of exhibit A: "The Field Guide SAA HB81.6-1998 at paragraph 3(h) states - Road condition signs. At BS works you will need to use the following road conditions signs: (i) Loose stones (symbolic). Use this sign either during preparation work when there may be loose material on the running surface, or when opening to traffic after sealing. In the latter case, leave the signs in position until all loose aggregate has been removed. At paragraph 4 it states - COMPLETING THE WORK When you have completed the sealing or asphalt work, you should aim wherever possible to remove all loose material from the road, restore all pavement markings and raised pavement markers, and remove all temporary signs and devices, including advance signs and speed limits, on the same day as the work is completed. If you cannot achieve this the least you should aim for is as follows: (a) Remove all loose material from the running surface - (i) the same, if the traffic volume is more than 10,000 per day; (ii) the next day if the traffic volume is between 1000 and 10,000 vehicles per day; or (iii) within the next week, if the traffic volume is less than 1000 vehicles per day." 63The following question and answer by the experts was set out in the Joint Report: "9 Is it agreed what were the applicable standards for the placement of signs in the circumstances in which this accident occurred was at the time of this accident? ... A. It is agreed that Loose Stones signs should have been left in place at the site until the loose material had been removed from the running surface of the road in accordance with SAA HB81.6-1998. 64Both experts accepted that the plan annexed to the Joint Report accurately set out the salient features of the bend. The diagram was drawn to scale. It was agreed between the experts that the marks on the shoulder of the road, depicted in photographs 17, 18 and 19, were irrelevant to how the accident occurred. 65In setting out his conclusions on p 13 of exhibit A, Mr Axup said: "Leaving the road surface contaminated with loose stones as depicted in the photographs and without the appropriate warning signs not only breached the guidelines laid down in the Australian Standards, but also created an unwarranted hazard to drivers." Mr George implicitly agreed with that opinion. Submissions and consideration - liability 66Before considering the legal basis for liability pursuant to the CLA, it is necessary to resolve some further factual issues. 67As I have already indicated, I accept the conclusion of the experts that photographs 050 and 016 in exhibit C depict the point at which the plaintiff's vehicle left Channel Road. Commensurate with that finding is the conclusion that the photographs and locations identified by the plaintiff as showing where his vehicle left the road are incorrect. In the course of reviewing the facts, I indicated that this discrepancy does not adversely reflect upon the plaintiff's credit. 68I found the plaintiff to be an impressive and honest witness. In relation to liability, he appeared to be doing his best to assist the Court. However, it was apparent from his evidence that he had considerable difficulty relating the photographs taken by Ms Lawrence to the topography. That difficulty was compounded because he was not present when the photographs were taken. There was the added difficulty produced by the circumstances of the accident, i.e. the loss of control of the vehicle with its dramatic change of direction culminating in it crossing the embankment and rolling onto the woodpile. Given that the plaintiff's focus would have been on trying to control the vehicle, it is understandable that he would not have been paying particular attention to where exactly the vehicle was moving at any point in time. The various evolutions of the vehicle before it came to rest would probably have occupied less than a minute. 69The plaintiff was heavily cross-examined about where the vehicle was when he first lost control and how precisely the vehicle moved thereafter. His answers were contrary to the expert opinion. In submissions by the defendant it was put that this was evidence that the plaintiff was driving erratically. I do not agree. In an emergency situation such as that with which the plaintiff was confronted, it is to require an unrealistic degree of precision to expect that the plaintiff would be accurate in his recollection as to time and space. The important elements of what he said are that he was driving at a speed at which he would normally be able to negotiate this corner, he lost control of the car and it left the road. There is a perfectly logical explanation for that sequence of events - the gravel on the road. 70These difficulties satisfactorily explain the plaintiff's inability to identify where on the photographs various events occurred when asked by the defendant in its request for particulars. His attempts to provide that information subsequently and at trial clearly involved a reconstruction by him of what occurred, albeit as I have found, a genuine attempt not one designed to mislead either the defendant or the Court. 71It follows that I draw no adverse inference against the plaintiff because of his inaccuracy in making notations on the photographs. 72The defendant submitted that the Court should infer that the plaintiff was speeding or driving at a speed which was unsafe in the circumstances. The only evidence available to support that submission is that on his own admission the plaintiff was travelling in excess of the speed on the speed advisory sign on the southern approach to the bend. It can be inferred from the opinion of the experts that his vehicle was probably travelling at a speed in excess of 53 km/h, since it is known that the vehicle left the road and that the critical speed range for the corner with gravel on the road was between 53 and 62 km/h. 73As is clear from the first report of Mr Axup (exhibit A), the critical speed for this corner without gravel on the road surface was significantly higher. Mr Axup suggested 75 km/h, although that figure was based on an incorrect measurement of the curve radius. Using the correct radius distance, the critical speed for this corner without gravel, would have been in the order of 65 km/h. 74The plaintiff's evidence was that having lived in this area for five years, he had negotiated the corner on many occasions and was aware that it could be comfortably negotiated at 50 km/h, but that it felt difficult at 60 km/h. It is not without significance that the apex of the corner was approximately 250 m from where he picked up Mr Gaunt. This is a short distance over which to build up speed. Although the plaintiff did not look at his speedometer as he was approaching the corner, he felt that he was travelling at a comfortable speed. Mr Gaunt provides support for that evidence. I find that the speed at which the plaintiff entered the corner did not exceed 60 km/h. 75Given the plaintiff's familiarity with the road and because he had negotiated this corner on many previous occasions, I am not prepared to find that driving at a speed in excess of the speed advisory sign of 40 km/h was an excessive speed in the circumstances. Taking those matters into account, and also taking into account the relatively short distance between where he picked up Mr Gaunt and the apex of the corner, I am not prepared to find that driving at a speed of between 53 km/h and 60 km/h was excessive in the circumstances. 76In making those findings, I have restricted my consideration purely to speed and I have not taken account of the defendant's submissions in relation to whether or not the plaintiff was keeping a proper lookout. 77The defendant submitted that the Court should not find that the gravel shown on the road in the photographs which comprise exhibit C, came from the defendant. The defendant based that submission on the evidence of Mr Huddleston to the effect that he was only performing relatively minor repair work on the corner in July 2006, such work comprising repair to the edges of the road and filling potholes. He said that the amount of gravel shown in the photographs was beyond that which he would have used to perform that work. He suggested in the course of cross-examination that the gravel may have come from a passing truck, which had no connection with the defendant. 78I found Mr Huddleston to be an unimpressive witness. He was somewhat defensive in his responses under cross-examination. He appeared very aware of the fact that he was the person who was likely to have deposited the gravel in the vicinity of the corner. Despite what was set out in his statement, it was clear that he had no independent recollection of what he had done in relation to Channel Road in July 2006. The reason for his defensive posture is clear when one takes account of the circumstances in which he was asked to make a statement. He was shown a photograph depicting gravel on the road and told that a motor vehicle accident had occurred as a result of the gravel. The suggestion which he volunteered that a truck, not belonging to the defendant, may have deposited gravel in the vicinity of the corner came after he was unable to explain how the amount of gravel shown in the photograph could have come onto the road. When pressed about whether he had ever seen trucks transporting gravel on Channel Road which were not associated with the Council, he said that the only trucks which he had seen were transporting fruit. 79There is other evidence which indicates a strong likelihood that the gravel on the road in the vicinity of the corner came from the defendant. Mr Huddleston agreed that in July 2006 he was performing edging and pothole filling work at the corner, although it is clear that he had no precise recollection. The defendant in its defence admitted that "it undertook edge repair along Channel Road between 15 to 17 July 2006". Mr George was asked to assume "between 15 and 17 July 2006 Wentworth Shire Council undertook edge repair and pothole repair work along Channel roadway". It was not clear from where the defendant obtained that information since it did not appear in documents produced by the defendant in answer to a subpoena. I infer, however, that this information was passed onto Mr George and set out in the defence on the basis of instructions from the defendant and information otherwise available to it. 80Exhibit E comprised documents produced by the defendant in answer to a subpoena. The subpoena required the production of "all correspondence, memorandum, plans, books of record, inventory records and all other documents relating to work done to Channel Road, Curlwaa in July 2006". Included in the documents produced in response to that subpoena was a document headed "Daily Running Sheet - Front" which referred to work performed by Mr Huddleston on Monday, 17 July 2006. It indicates that on that day he laid 500 square metres of gravel/aggregate and worked for four hours in order to do so. 81There was some doubt in the evidence as to whether the 500 square metres would have been laid on that day or would have indicated the amount of aggregate cumulatively to be laid as part of the job. Certainly Mr Wade seemed to think that the 500 square metres related to work done on that day. Although it was not clear how much gravel/aggregate would need to have been laid to make up 500 square metres, it seems to me as a lay person that it would be much greater than that which would be required to perform edging repairs and pothole filling on the corner where the accident occurred. If Mr Wade's assessment of what was normally contained on a Running Sheet is correct, this sheet would seem to indicate that Mr Huddleston laid much more gravel and aggregate on that day than he described in his evidence. There was a general assumption in the trial that this running sheet which described work performed at Curlwaa, included work performed on this corner. 82Also included in exhibit E was a letter dated 22 July 2006 sent by a Ms Wall to the defendant. Ms Wall occupied a house next to where the accident occurred. The letter relevantly said: "I am writing to express my concern about the state of the road surface on the bend near our house on Channel Road, near the intersection of Poplar Lane. Recently road works were carried out which resulted in fine grey gravel being spread over the bend. In the past there have already been accidents due to the sharpness of the bend and this gravel has increased the likelihood of further accidents. Since this last lot of gravel has been put on the road we know several people who have had their vehicles slide whilst negotiating the turn, have witnessed some cars lose control and spin right around and seen tyre marks where cars have left the road. Last week we returned home to find a car had slid, rolled and ended up on the woodheap near our driveway. Luckily no-one was hurt. I would ask that you review the use of this gravel on the bend (this is the second time this year it has been used) ..." 83The defendant responded to Ms Wall by a letter dated 13 October 2006 as follows: "ROAD SURFACE I acknowledge your letter received on 22 July 2006 regarding the road surface on the bend in Channel Road near the intersection of Poplar Lane. Council has cleaned the road surface of loose gravel and will be mindful in future maintenance of the road, to minimise any loose stones. Nevertheless a review will be undertaken to determine any signage or line marking enhancements to reinforce the need for appropriate caution by drivers approaching the bend. ..." 84By letter dated 7 December 2006 addressed to the plaintiff's solicitors, the defendant advised as follows: "Further to our telephone conversation this morning regarding documentation on work performed on Channel Road, Curlwaa, I am forwarding all documentation that we have relating to this matter. As work carried out on local roads maintenance is booked to one number, it is difficult to determine exactly where this work is carried out. After further investigation I have determined that work was carried out on Channel Road, Curlwaa on Monday 17 July 2006 as per copy of attached documentation. Unfortunately the accident was not reported to this Council. On the 22nd July 2006 Council received a letter from Jennifer Wall expressing her concerns about the road condition and Council revisited the site in response to the letter. Jennifer Wall's letter was received by Council on 26 July 2006 and a Council employee, who was working on "clean up" attended and inspected the road on that day." 85It was common ground that the only entity authorised to perform road works on Channel Road was the defendant. Accordingly, the reference by Ms Wall in the first paragraph of her letter to "road works" being carried out on the bend "recently", could only refer to work carried out by the defendant. Ms Wall, who lived next to the corner, was in no doubt that it was these road works which had rendered the corner dangerous and had led to cars sliding on the corner. Significantly, the defendant in its response to Ms Wall of 13 October 2006 and in its letter to the plaintiff's solicitors of 7 December 2006 did not deny that it had carried out the relevant road works, nor did it assert that some other entity might have been responsible for the gravel on the road. 86To suggest as the defendant does, that some other entity was responsible for the gravel on the road at the corner where the accident occurred is to rely upon speculation, rather than the evidence at trial. The only evidence is that the defendant was carrying out road works in Channel Road at least two days before the accident, i.e. 17 July 2006. Both Mr Huddleston and Ms Wall take that matter further and say that road works were performed at that corner. Ms Wall describes the hazard created by gravel on the road and asserts that the defendant was responsible for the gravel. Not only did the Council not deny that assertion, it sent somebody out on either 26 or 27 July 2006 to sweep up the gravel. It follows that the evidence is overwhelmingly to the effect that the Council deposited the gravel on the road depicted in the photographs, exhibit C, and that the amount of gravel deposited on the road was significantly greater than that required to perform the work described by Mr Huddleston. 87The defendant submitted that the plaintiff should not be believed when he said that he saw Mr Huddleston with his truck in the vicinity of the corner on the day of the accident and when he said that he saw and spoke to Messrs McAlister and Wade outside his home on that day. The defendant relied on the evidence from all three persons that they were not in Channel Road on that day and in the case of Messrs McAlister and Wade, that they did not speak to the plaintiff. 88In the case of Mr Huddleston, the defendant submitted that the defect in the plaintiff's evidence was that the truck which he described could not possibly have been the truck used by Mr Huddleston at that time. This was because Mr Huddleston was using a new truck acquired in January 2006 which was very different to the old as can be seen from exhibit 3. The defendant submitted that the plaintiff's motivation in giving that evidence was to establish that the defendant was performing road work at the corner just before the accident occurred. 89I accept that the plaintiff was telling the truth about seeing Mr Huddleston with a truck at the corner. It is by no means clear when it was that Mr Huddleston laid aggregate/gravel at the corner. Mr Huddleston himself had no independent recollection and as the letter from the defendant to the plaintiff's solicitors of December 2006 made clear, the records held by the Council did not greatly assist. Certainly Mr Huddleston was doing work on 17 July 2006 in Channel Road, but that does not mean that he may not have been performing work there on other dates, including 19 July 2006. In that regard the defendant was prepared to admit and provide instructions to Mr George that road works were conducted in Channel Road on 15 and 16 July 2006 without there being any supporting documentation. 90Much of the attack on the plaintiff on this issue was directed towards what was said to be the plaintiff's description of the truck which he saw with Mr Huddleston. The defendant's submission is based on the proposition that the truck described by the plaintiff could not have been the truck with Mr Huddleston, even if the plaintiff had in fact seen him on 19 July 2006. 91A close examination of the plaintiff's evidence does not support the submission. The plaintiff made it clear that he did not see all of the truck. What he saw was part of the truck and its top. The distance was approximately 300 metres, with some bushes in between. If in fact the plaintiff saw Mr Huddleston and a truck, he may well have assumed without paying particular attention to the truck, that it was the same truck as Mr Huddleston had been driving when the plaintiff worked for the defendant. 92The detailed description which the plaintiff gave of Mr Huddleston's truck, when taken with the questions which he was actually asked, was not a description of the truck which he said he saw on 19 July 2006, but rather a description of the truck which Mr Huddleston used to drive when the plaintiff was working for the defendant. While it may have been clear to an observer standing next to the truck depicted in exhibit 3, that it was very different to the old truck, such difference may not have been apparent to a person making an observation at a distance of 300 metres when the truck itself was partly obscured. It is also significant that the plaintiff recognised Mr Huddleston because of his distinctive hat, rather than because he recognised Mr Huddleston's features. 93For the reasons already referred to, I found the plaintiff to be a more reliable witness than Mr Huddleston and I accept the plaintiff's evidence as to Mr Huddleston's distinctive headwear. When Mr Wade gave evidence in the defendant's case, he was not asked any questions about whether or not Mr Huddleston wore a distinctive hat, even though Mr Huddleston was one of the employees under his direct control. 94Alternatively, the plaintiff may have seen Mr Huddleston at the corner with the truck and have been mistaken as to the date. It may have been 18 July or 17 July. It is clear from Mr Wade's evidence and that of Mr Huddleston, that when road works were carried out at the corner in 2006, they would have been carried out by Mr Huddleston. Mr Huddleston said that he did carry out road works at the corner. The letter of Ms Wall indicated that road works were carried out at the corner at a time close to when the accident occurred. 95The first time the plaintiff referred to seeing Mr Huddleston was in his statement, exhibit F, which he signed in February 2011. With such a substantial effluxion of time and given the serious nature of the injuries which he suffered, he could have been mistaken as to the date on which he saw Mr Huddleston and the truck at the corner. What is known is that Mr Huddleston and his truck were in fact at the corner doing work, but on the defendant's case not on 19 July but on 17 July 2006 in accordance with the Daily Running Sheet. 96If in fact the plaintiff did not see Mr Huddleston and his truck at any time before the accident and his evidence to that effect is a fabrication, he has been rather fortunate in that Mr Huddleston was at the corner with his truck doing road works but on 17 July not 19 July 2006. It would be a surprising untruth for the plaintiff to invent since it would be easily rebutted by the defendant when it called Mr Huddleston. 97I am satisfied that if Mr Huddleston and his truck were not at the corner doing work on 19 July 2006 as the plaintiff says, it is not because the plaintiff is deliberately seeking to mislead the Court, but because the plaintiff did in fact see Mr Huddleston and his truck in July 2006 but has mistaken the date upon which he made that observation. 98Messrs Wade and McAlister were not asked until May 2011 to recollect whether they had spoken to the plaintiff on 19 July 2006. Both of them agreed that they had no independent recollection of what they had been doing that day. Mr McAlister was definite that even though he had no independent recollection, it was most unlikely that he would have been travelling with Mr Wade since he worked in a different part of the defendant's organisation. Mr Wade agreed that after so much time, he may well have forgotten a brief conversation with the plaintiff almost five years before. Mr Wade agreed that he could have been driving in Channel Road on 19 July 2006. 99Nothing turns on whether this conversation took place except the plaintiff's credit. It may be that the plaintiff is mistaken with his recollection about Mr McAlister. He may, however, be correct about having spoken to Mr Wade in July 2006, particularly since road works were being carried out in Channel Road at this time. If the plaintiff is mistaken in his recollection in this regard, either as to who was in the car or as to what was said, or as to the date, I do not draw the sinister inference sought on behalf of the defendant. I accept that if the plaintiff is mistaken, it was a genuine mistake of recollection. On the other hand, it may be as Mr Wade agreed, that the plaintiff's recollection is correct and Mr Wade was in Channel Road in July 2006. 100Another factual issue is the amount of gravel on the road at the time of the accident. I am satisfied that the photographs taken the following morning, which bear the incorrect date of 19 July 2006, provide a reasonable indication of the amount of gravel on the road at the time of the accident. All of the evidence suggests that this was not a particularly busy road with approximately 50 cars per day, including 4 or 5 semitrailers, using it. While this would cause some disturbance to gravel on the road, it would not have been particularly great between 5.15pm the previous evening and the morning of the following day when the photographs were taken. 101This conclusion is strengthened by the contents of the photographs taken some 5 or 6 days later when the plaintiff was discharged from hospital. These photographs still show substantial quantities of gravel on the road at the corner and what they depict is not dissimilar to those photographs taken earlier. The wheel marks of passing traffic seem more prominent, so that the gravel itself has been pushed into what was described as "windrows". The fact that such gravel remained on the road in that way after 5 or 6 days is consistent with the traffic flow over the road being low. It also means that these photographs, albeit taken some days later, are useful in demonstrating the state of the road when the accident occurred. 102The only contrary evidence comes from the plaintiff. He said that the state of the road as shown in the photographs was different to that which he observed when the accident occurred. His evidence was that the gravel appeared to be spread in a uniform fashion across the road so that he thought initially that the road had been resurfaced in some fashion. He said that it was only when he was approximately 10 metres away and almost onto the gravel that he realised that there was a problem. 103I have concluded that the plaintiff is mistaken in this evidence. It is inconsistent with the photographs taken on the following morning. It is inconsistent with the observations of Ms Lawrence. There may have been slightly more gravel on the road at the time of the accident but generally speaking, I am satisfied that the photographs taken the following morning, and to a lesser extent those taken some days later, give a reasonable indication of the state of the road surface when the accident occurred. 104In giving the evidence which he did I do not find that the plaintiff was seeking to deceive the Court. His evidence was that he did not see the gravel until the vehicle had almost reached it. He said that afterwards he was pretty shaken up and that all he wanted to do was go home. Specifically, he made no further observation of the road at that time nor did he apparently make any observation of the road at the time the police came. Had the plaintiff wished to deceive the Court, he could have given evidence of close examination of the road surface on one or both of those occasions. 105The fact that the plaintiff gave no evidence about an examination of the road following the accident, is consistent with the serious injuries we now know that he suffered, but also with the conditions of visibility at the time. This accident occurred in the middle of July at approximately 5.15pm when at the very least, conditions would have been getting dark. By the time the police officers arrived an hour later, it would have been fully dark. It would have been difficult for the plaintiff to have made any detailed observation of the road surface on those occasions in those conditions. 106By way of summary, I find as follows. I accept the plaintiff's evidence that he had not driven through the corner with gravel present on the road surface before 19 July when the accident occurred. I accept that he did see Mr Huddleston with his truck, but that it may not have been on 19 July 2006, but a day or so earlier. I find that he did see Mr Wade in July 2006 but again he may have been mistaken as to the date. He probably did not see Mr McAlister and is mistaken as to who was with Mr Wade at the time he saw him. In that regard, I found Mr McAlister's explanation for why he did not think he was in the utility with Mr Wade in July 2006 to be convincing. 107I find that the plaintiff was not travelling at an excessive speed in the circumstances at the time when the accident occurred and that he was probably travelling between 53 and 60 km/h. I find that the plaintiff lost control of his vehicle as it negotiated the corner, probably at the apex of the corner. I find that the plaintiff did not see the gravel until he was about 10m away from it. I find that the physical cause of the plaintiff losing control of the vehicle was the loss of traction by his vehicle due to the presence of gravel on the road at that location. 108It is necessary to assess liability against the background of those factual findings. 109It was accepted by the parties that the defendant as the entity having the care and control of Channel Road owed a duty to exercise reasonable care for the safety of those persons using the road. Neither party made any submissions as to the content of that duty. 110Some assistance on that issue is provided by Brodie v Singleton Shire Council [2001] HCA 29, 206 CLR 512. Gaudron, McHugh and Gummow JJ provided the following guidance: "150 The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature of those conferred by the LG Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. ..." "159 The discharge of the duty involves the taking by the authority of reasonable steps to prevent there remaining a source of risk which gives rise to a foreseeable risk of harm. Such a risk of harm may arise from a failure to repair a road or its surface, from the creation of conditions during or as a result of repairs or works, from a failure to remove unsafe items in or near a road, or from the placing of items upon a road which create a danger, or the removal of items which protect against danger." 111It is then necessary to consider the question of whether that duty was breached by the defendant. This is determined by the application of s 5B CLA. "5B(1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 112The application of those requirements to the facts of this case demonstrates a breach of duty on the part of the defendant. The relevant risk of harm was the presence of a substantial quantity of gravel on the road surface at a difficult corner, which might cause vehicles attempting to negotiate that corner to leave the road. That risk was foreseeable. It was well known to Mr Wade and Mr Huddleston and was expressly referred to in the Australian Standard. The risk of such harm occurring was not insignificant because the presence of the gravel on the road surface substantially lowered the critical speed for vehicles attempting to negotiate the corner. 113In those circumstances a reasonable council, which carried out the road works at the corner would have taken steps to make sure that the gravel used was not in such quantity as was likely to come upon the road and would have erected an appropriate sign. The signs to be erected were those set out in the Australian Standard, either a Slippery sign or a Loose Surface sign. 114A reasonable council would have taken those precautions because there was a high likelihood that harm would occur if gravel were allowed to remain on the road surface at the corner and no sign was placed in position. The harm likely to be occasioned was substantial. Serious injury or death could occur if a car lost control and left the road. The burden of taking the specified precautions to avoid the risk of harm was minor. The carrying out of road works in such a way as to not place excessive gravel on the road was an accepted method of properly carrying out the work and the affixing of signs where a hazard was recognised was inexpensive and easily achieved. 115It is not without significance that Mr Huddleston in his evidence said that he did not erect a warning sign because there was insufficient gravel used in the repair work which he carried out to justify it. Implicit in that evidence is a capacity on the part of Mr Huddleston to erect such a sign. I infer that he carried such a sign on his truck or had easy access to such a sign. 116While there was a high social utility in carrying out road repairs at that corner, there was an equally high social utility in making sure that the repairs were properly carried out so as not to create another hazard and if it became necessary for substantial quantities of gravel to be used, then an appropriate sign should have been erected. 117It follows that I am satisfied that the defendant breached the duty of care which it owed to the plaintiff as a driver on Channel Road. 118The next issue is whether this breach of duty caused the plaintiff's accident. Section 5D CLA provides: "5D(1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ("factual causation"), and (b) that it is appropriate for the scope of the negligent person's liability to extend the harm so caused ("scope of liability"). (2) In determining in an exceptional case, in accordance with established principles, where the negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the Court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the Court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party." 119The determination of factual causation under s 5D(1)(a) is a statutory statement of the "but for" test of causation (Adeels Palace Pty Ltd v Moubarak [2009] HCA 48, 239 CLR 420 at [55]). Applying that test, it is clear that the plaintiff would not have lost control of the vehicle except for the presence of the gravel on the road. This is the opinion of the experts and is the inevitable inference from the description given by the plaintiff of what happened. That being so the "scope of liability" determination presents little difficulty. It was accepted that the scope of the defendant's liability extended to the harm suffered by the plaintiff in this case. 120The defendant challenged a causation finding on two bases. The first was based on the plaintiff's evidence that what he saw was a continuous dark line so that he thought the road had been resealed when, as I have found, the more likely scenario is that the road surface was as depicted in the photographs, particularly those taken on the day following the accident. The defendant submitted that if such was the state of the road, the plaintiff should have observed the gravel earlier than he did and should have been able to bring the vehicle to a halt. In other words, it was the plaintiff's failure to keep a proper lookout which was the necessary condition of the accident, and that therefore causation has not been established. 121I do not agree. The defendant's submission on this issue misunderstands the analysis by the High Court in Strong v Woolworths Ltd [2012] HCA 5, 86 ALJR 267. There can be more than one necessary condition for an accident occurring. Even on the defendant's submission, the contribution of the gravel cannot be excluded as a necessary condition of the accident. In my view, its presence in the absence of any warning was by far the most important contributor to the accident. There would have been no need to keep a proper lookout unless this hazard had been present on the road. 122Accordingly, the defendant's submission goes to contributory negligence but not to primary negligence. 123The defendant also submitted that the failure by it to erect an appropriate warning sign was not a necessary condition of the accident occurring since the plaintiff would not have paid any attention to it. The basis for that submission was the failure by the plaintiff to comply with the 40 km/h speed advisory sign. 124I do not agree. The plaintiff had lived in this area for 5 years. He had driven through his corner on hundreds of occasions. He was aware that it was a difficult corner, but was also aware that it could be comfortably negotiated at a speed of between 50km/h up to 60km/h. At 60 km/h he said "it just didn't feel right" (T.23.8) "it felt like you're going to break traction and just lose the corner" (T.23.31). In not following the speed advisory sign, the plaintiff was doing no more than making use of the knowledge and experience of this corner which he had acquired over the preceding five years. 125The plaintiff did not appear to me to be the sort of person who would ignore signs. The reason he did not comply with the traffic advisory sign was because his own experience told him that he could safely negotiate the corner at a higher speed. Given the plaintiff's acknowledgement that the corner was a difficult one, had there been a new sign erected indicating either a slippery surface or a loose surface, the plaintiff would in all probability have noticed it, reduced speed and kept a proper lookout until the precise nature of the hazard revealed itself. There was nothing in his demeanour or evidence to suggest to me that he was likely to ignore a sign such as that, particularly when he had seen Mr Huddleston either on the day of the accident or some days previously at the corner. 126I am satisfied that the plaintiff has established causation and therefore negligence against the defendant. There remains the question of contributory negligence. The test for contributory negligence is an objective one (Joslyn v Berryman [2003] HCA 34, 214 CLR 552). For the reasons already indicated, I am not prepared to find that the plaintiff failed to exercise reasonable care for his safety by not complying with the traffic advisory sign. Whether he failed to keep a proper lookout in the circumstances is not so clear. 127A court has to be careful when assessing photographs. In this case I have the benefit of the opinion of the experts and the evidence of the plaintiff and Ms Lawrence, who saw the gravel on the road. On the photographs, the gravel is the darker substance and the road is the lighter surface. Looking purely at the photographs and without regard to other considerations, the contrast between the gravel and the surface of the road is fairly clear. That, of course, does not end the matter. 128The accident occurred at approximately 5.15pm in July when visibility and lighting conditions would have been poor. It is not known whether the plaintiff's headlights were on or not. In such conditions, however, the state of the road surface would have been more difficult to assess. This may explain in part the plaintiff's evidence that what he observed was a continuous dark line where the gravel commenced. Another matter to be taken into account is that there is an inevitable delay between perception and reaction. The experts usually allow one and a half seconds. At a speed of 55 km/h a vehicle would travel 23 metres in one and a half seconds. Finally, a driver is not only looking at the road surface, but is looking ahead generally so as to detect other hazards. 129On the other hand, the quantity of gravel on the road was substantial and there would have been definite contrast even in poor lighting conditions. The gravel was there to be seen but was not seen by the plaintiff until it was too late for him to do anything about it. In those circumstances I am satisfied that the plaintiff failed to keep a proper lookout and therefore was partially responsible for the accident. 130In carrying out the balancing exercise of relative culpability and causal potency discussed in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34, 59 ALJR 492 I assess the plaintiff's contributory negligence at 15 percent. In my opinion, the negligence of the defendant far outweighed that of the plaintiff as did its culpability. Its negligence consisted of placing or allowing to be placed on the road at a difficult corner, a substantial quantity of gravel and having done so, it failed to place in position any warning sign. The dangerous state of the road was created by the defendant. 131In its pleadings the defendant relied upon various sections of the CLA. At trial no submissions were addressed to these sections, nor were they particularised. Nevertheless, they have been raised in the pleadings and it is necessary for the Court to briefly deal with them. 132Section 45 CLA relates to non-feasance by a road authority. The negligence in this case related to misfeasance in that the defendant created the harm and did not warn road users of it. Section 45 has no application to the facts of this case. 133The defendant also relied upon ss 5F, 5G and 5H CLA. These sections relate to liability for an "obvious risk". The risk of harm with which the plaintiff was confronted on 19 July 2006 was not an "obvious risk" as envisaged by those sections. It was a risk which could only be detected by a driver keeping a careful lookout at the road surface while driving. In that regard it is significant that the Australian Standard requires specific warnings to be given concerning the particular risk of harm which eventuated. Finally, I have found that the plaintiff was not aware of the risk posed by the gravel until it was too late to do anything about it. Those sections of the CLA have not been made out. Damages 134When the plaintiff was first admitted to the Alfred Hospital on 20 July 2006 he was diagnosed with traumatic fractures of facets at C5/6 with right C6 radiculopathy. There were also wedged compression fractures of T3 and T4. When he returned to the Alfred Hospital in September 2006, follow up x-rays showed a traumatic slip of C5 over C6, indicating the need for surgical stabilisation. An MRI scan of the cervical spine showed the fracture at C5 and soft tissue injuries C2-C6. A CT angiography showed occlusion of the right vertebral artery. Plain x-rays of the cervical spine showed a grade two spondylolisthesis and anterior slip of C5 on C6 of about 6 mm. An MRI scan confirmed these abnormalities with a complete tear of the anterior longitudinal ligament and near complete tear of the posterior longitudinal ligament. At C5/6 there were moderate to severe right-sided foramenal stenoses with no cord compression. 135As already indicated, on 14 September he underwent a posterior fusion at C5/6 and on 12 October he underwent an anterior cervical decompression and fusion at C5/6. The wedged compression fractures of T3 and T4 were regarded as mild. There were no abnormalities in the lumbo-sacral spine identified. The operating neuro-surgeon at the Alfred Hospital was Mr Greg Malham. While in hospital the plaintiff suffered from positional vertigo and cough syncope. These two conditions lasted for a considerable time but had resolved by the date of the trial. 136When further tests were carried out in May 2007, CT scans showed excellent position and healing of the fractures at C5/6. 137Dr Malham saw the plaintiff for the last time in October 2007. The history given by the plaintiff was that he still had persisting cramps affecting the left side of his neck and that there was stiffness in his upper back, which forced him to lie down for relief. His main problem at that time was the cough syncope which caused him to become dizzy and on occasions to black out. He also complained of difficulty swallowing solid foods. 138The result of Mr Malham's examination was as follows. "On examination Mr Pettigrew was alert, oriented and appropriate. Co-operative with all questions and examinations. Well muscled man in good health. No muscle wasting, upper limb with normal power and sensation. Full range of shoulder movements bilaterally. No lower limb neurological deficit. Tests of gait were normal. Tests of balance were intact with in tact tandem walking and negative Romberg's test." 139Mr Malham recommended a number of additional tests which were never carried out. Mr Malham noted that his main problem when he saw him was the pain in his neck and the episodes of dizziness as a result of his cough syncope. 140The plaintiff saw a Dr Shannon, general surgeon, in October 2007. Dr Shannon took a history that the plaintiff had not received any specific treatment since his discharge from hospital, except attendances on general practitioners for the prescription of painkillers. There was a brief period of physiotherapy. The plaintiff said that he tried to do a bit around the house but had not returned to work. The plaintiff complained of limited neck movement with a particular difficulty in looking down. He complained of cramping in the neck and dizziness. He had upper backache, with the pain getting worse as the day progressed. The prognosis by Dr Shannon was for the development of disc degeneration with the passage of time. He thought the plaintiff would have difficulty resuming his occupation as a motor mechanic. He considered that the plaintiff's complaints were reasonable. 141In October 2007 the plaintiff saw Dr Stern, a psychiatrist. Dr Stern received a history of pain in the neck, mid and low back, with dizziness and difficulties when the plaintiff looked up and down. The plaintiff said that he was frustrated by his physical restrictions. The plaintiff said that his sleep was disturbed by pain. He could only sleep for about two hours. Because of lack of activity, his weight had increased by about 25 kgs. Following the accident, the plaintiff had noticed erectile dysfunction which was affecting his relationship with his partner. The plaintiff was complaining of reduced memory and concentration. Dr Stern concluded that there was no psychiatric disorder. He found no evidence of any anxiety, depressive or post-traumatic stress disorder. Dr Stern thought the plaintiff's orientation, memory and concentration were in tact and that his intelligence was normal with a good insight into his current situation. 142The plaintiff saw doctors in 2008. In April 2008, at the request of his solicitors, he saw Dr Rowe, a specialist occupational physician. At that time he complained of pain and stiffness of movement in the neck. He was dizzy and felt weak and tired. He was conscious of scarring at the back of his neck and had some numbness near the scar. He had pain in the mid thoracic region. If he twisted or bent his neck, he became dizzy. 143Dr Rowe was told that the plaintiff had been unable to return to any work, other than to perform a few simple jobs at home. He said that he had always worked as a motor mechanic and had no other occupational experience. During 2007 he had resumed riding a motor bike and at the time of this examination was continuing to do so. He was able to drive a motor vehicle. 144Dr Rowe did not think that the plaintiff could return to work as a motor mechanic and unless he was retrained, it was unlikely that he would return to any work. He said "he would be able to be retrained or re-educated in some other form of work, but he will always have limitations in regard to working with his neck in a constant position, doing heavy lifting or working in awkward positions". 145The plaintiff was seen by a neurosurgeon, Dr Klug, in June 2008. At that time the plaintiff reported cramp-like pain on the left side of his neck and very occasional dizzy episodes. He continued to have difficulty in swallowing. There was some pain in the thoracic region of his spine, particularly if he bent forward on a repetitive basis. There was no numbness or tingling in his arms and he did not have any pain in his lower limbs. He said that his memory function was not as good as it was before the accident. 146Dr Klug concluded that the plaintiff had probably not suffered a head injury. Although the plaintiff had suffered a very serious injury to his neck, he had made a good recovery. The restrictions of movement complained of by the plaintiff were reasonable. The absence of pain in the arms indicated that the radiculopathy had resolved. 147In relation to employment, Dr Klug said: "I do believe that as a result of the substantial injuries his work capacity has been substantially lessened. At the present time based on my assessment I do believe he could probably undertake some forms of employment which were not physically demanding. I do believe he could undertake light physical work such as working at bench-top height at some sedentary activity." 148Dr Klug thought that his prognosis was reasonable, but that he would continue to experience pain into the future. 149A further series of medical examinations took place in 2010. In January 2010 the defendant had the plaintiff examined by Professor Davis, a neurologist. The plaintiff told Professor Davis that ever since the accident he had experienced fatigue, pain in the back and neck, positional giddiness and had been unsuccessful in returning to work. He said that he even had difficulty working on his own car. He said that his memory was "all over the shop" since the accident. His partner said that he could not even remember his birthday and that she had to write everything down for him and he even had trouble reading that. 150The plaintiff complained of pain in both shoulders, more on the left than the right. He had difficulties with erections and used Viagra. His dizziness had significantly improved. He became tired very easily and activity brought on pain. In relation to his emotional state, Professor Davis recorded the following: "His wife describes him as an emotional "wreck" and he acknowledges that he is suffering. He is frustrated at having to live with the restrictions caused by this accident. He is upset by the constant pain and that people don't really believe him when they see him walking around. Donna points out that he cries a lot. He might say he is going out for an hour or so, stay away for a day and seems to have just "lost it". He doesn't think that his mates understand the degree of suffering that he goes through when they see him walking around." 151The plaintiff was taking Oxycontin, Panadeine Forte, Panamax and Viagra. The plaintiff said that he was consuming quite a lot of alcohol and that the combination of half a dozen a whiskeys each day and the analgesics provided better pain relief. He was continuing to ride a motor bike with his club "The Rebels". On occasions, he was forced to leave his bike at places because he was not well enough to get back to the club due to physical problems. 152Professor Davis concluded that the plaintiff had not suffered any significant head injury or brain damage. He thought that any memory and mental problems were psychologically caused. Professor Davis could not find any physical basis for the plaintiff's erectile problems. 153Professor Davis accepted that the plaintiff had suffered very significant injuries to his neck and upper back. He thought that his complaints of continuing pain in the neck and upper back were reasonable. He thought that future treatment should be conservative and should consist of pain relieving medication. He thought that the plaintiff appeared to have a psychiatric problem. 154In relation to employment, he said: "I think that this man could potentially return to the workforce but would agree with other occupational experts that it would be difficult to see him working as a motor mechanic. There are a range of other potential work options and it would be quite incorrect to regard him as permanently and completely incapacitated for work of a suitable nature." 155At the request of the defendant's solicitors, the plaintiff saw Dr Weaver, orthopaedic surgeon, in January 2010. When asked by Dr Weaver to identify his most serious problem, the plaintiff responded "memory". The plaintiff and his partner then explained the problems which indicated to Dr Weaver some difficulties with cognition. 156The plaintiff also complained of neck pain and pain affecting the upper back between the shoulders. The pain made it difficult for him to move his head at times. He told Dr Weaver that he was taking Viagra. 157On examination Dr Weaver found that his range of neck movements was very restricted. He had full movements of the shoulders but he complained of some thoracic discomfort. In relation to the low back, the plaintiff had full flexion movements with some slight limitation of lateral flexion. Rotatory movements were bilaterally full but were associated with some discomfort. 158In providing his assessment, Dr Weaver restricted himself to orthopaedic matters only. Dr Weaver considered that the plaintiff's complaints of pain in relation to the neck and upper back were reasonable. He did not think the plaintiff required any further orthopaedic treatment. He thought that some physiotherapy on occasions when the plaintiff was experiencing exacerbations of pain would be reasonable. 159In relation to employment, Dr Weaver said: "Mr Pettigrew has sustained a very substantial injury to his cervical spine and there is evidence of additional damage to the thoracic region as well. These problems almost certainly mitigate against the proposition that he would ever resume employment of a heavy character at any time. This would almost certainly preclude many forms of employment as a mechanic for instance. The question as to whether he is capable of being retrained for alternative employment again almost certainly relates to matters other than the orthopaedic or musculoskeletal problems which he has been experiencing. My own suspicion is that Mr Pettigrew is probably not particularly motivated to return to the workforce any way; I note that he has already been provided with the assistance of a disability support pension. I would have thought that the proposition of returning to work will prove a very formidable one for all concerned and I certainly doubt that Mr Pettigrew is going to make any attempt to do of his own volition. I am nevertheless obliged to reiterate that there is absolutely no musculoskeletal reason which would prevent him from returning to useful employment of some kind." 160At the request of his solicitors, the plaintiff saw Dr Klug again in November 2010. The plaintiff said he was still troubled by stiffness and discomfort in his neck and intermittent cramp-like pain on the left side of the neck. The neck pain on occasions extended into his shoulders. Dr Klug noted that during the interview the plaintiff was able to sit in comfort and was able to remove and replace items of clothing without the need of assistance. He observed the plaintiff to move in a free manner and that his gait was normal without any obvious evidence of a limp. He had the ability to stand on his heel and toes. The plaintiff was able to demonstrate quite a good range of movement in his thoracolumbar spine, but did complain of some discomfort in the low back on the left side. Dr Klug thought that the plaintiff was neurologically normal in relation to his arms and legs. 161Dr Klug agreed with the other doctors that the plaintiff had not suffered a head injury and had not suffered brain damage in the accident. His problems with memory were psychologically based. He thought that the plaintiff's complaints in relation to his neck were reasonable and that continuing mild symptoms in his upper back, and perhaps low back, were reasonable as well. 162In relation to work, he said: "You've asked me whether or not he is incapacitated for work as a result of the injury sustained and if so, the extent of such incapacity. In my opinion this person does have a physical disability related to his injuries. I feel it would probably be inappropriate if he undertook types of employment placing undue strain on his neck and back region, but that from the purely physical point of view many alternate types of employment of a less physically demanding nature would be within his capabilities." 163In June 2010 the plaintiff was referred by his solicitors to a neuro-psychologist, Mr Drury. The plaintiff complained of constant neck pain and constant pain in the upper back, shoulders and middle back, with pain radiating to the hips. He felt very tired most of the time and he had some erectile dysfunction. The plaintiff went into considerable detail about his memory problems and problems of concentration, planning and speed of thinking. The plaintiff complained of frequent mood swings, feelings of anxiety and depression. Having administered tests and considered the results, Mr Drury concluded that it was unlikely that the plaintiff had suffered any brain damage. He thought that the plaintiff's pattern of memory difficulty was not consistent with an organic basis. He thought that "it is likely that some combination of his psychological state, pain and fatigue is the basis for such difficulties". 164The plaintiff's solicitors referred him to Dr Epstein, psychiatrist, whom he saw in September 2010. He told Dr Epstein that although his weight had significantly increased, he had managed to reduce it by 15 kgs in recent times. He was still experiencing some difficulty with sleeping. He had flashbacks to the accident at least weekly, especially when travelling in traffic. He road a bike and regularly drove a motor vehicle. He felt safer being a driver than a passenger. He complained of ever-present pain in the neck, middle and upper back and shoulders. He said that he could walk for about 15 minutes and could not run easily and was very restless when seated. He was irritable, anxious and his mood was low. He felt depressed five days out of seven, lasting for a few hours. His libido was normal but he was very self-conscious about his erectile dysfunction. 165In relation to the interview, Dr Epstein reported: "He was co-operative during the course of the interview and made good eye contact. He appeared well oriented to time, place and person. His effect was restricted and he appeared depressed and mildly anxious. His perception appeared normal. His intellectual functioning appeared normal. His speech appeared normal in rate, rhythm, volume, tone and syntax. He had no obvious problems with memory or concentration. There was no evidence of thought disorder. There was no evidence of delusions or hallucinations." 166Dr Epstein concluded that the accident was associated with some symptoms of a mild post-traumatic stress disorder which had been improved but were still present. He thought the plaintiff could benefit from some psychiatric treatment which he described and which would take six months to complete. The approximate cost would be $3000. 167Dr Epstein found no evidence that he had any significant cognitive dysfunction and he thought that any difficulties which he had came from his psychological response to the accident, rather than an organic cause. 168There was one report which I have not set out in detail. It is a report by Suzanne Ravagnani and Mark Ravagnani. Ms Ravagnani is an occupational therapist and Mr Ravagnani is a vocational psychologist. They saw the plaintiff in May 2009 at his home. Their report seems somewhat out of step with the assessment of the doctors who have seen the plaintiff and does not accord with my observations of the plaintiff over two days in the witness box. 169The sort of matters which they recommended were a supervised exercise program over twelve months with an organisation such as Fitness First and then gym membership for the rest of his life. They suggested 12 hours of physiotherapy per year, together with various natural therapies and occupational therapy. The following additional pieces of equipment were suggested: An adjustable recliner, a pillow, a mattress overlay and a seat/stand stool. 170In relation to domestic assistance, they identified a need for assistance with housework, such as cleaning bathrooms, toilets, hanging heavy washing, changing bed linen, garbage removal, assistance with shopping and putting groceries away, gardening, lawn mowing, cleaning outdoor areas and home handyman tasks. The total amount of time was calculated at seven and a half hours of assistance per week. 171In relation to those assessments by Ms and Mr Ravagnani, it is useful to go to some of the comments by doctors on the same subject matter. Dr Klug in November 2010 said: "He is able to cope with the activities of daily living. He helps his mother with some tasks around his home. He does note however that if he tries to bend such as when he attempts garden activities the pain particularly in the region of his hips becomes more marked. He also notes that walking tends to aggravate pain in this and his neck region." 172Dr Weaver said in relation to the following question: "7 Your opinion as to whether the plaintiff has or will require domestic assistance as a result of his alleged accident and your comments on the assistance described in the report of Ravagnani dated 1.7.2009. These are matters a little outside my field of competence but I can only make the observation that Mr Pettigrew himself has a partner with whom he lives. Anyway Mr Pettigrew is theoretically capable of undertaking his own personal requirements and I would have thought that there was a fairly limited requirement for him to be provided with assistance from any other outside source. ... I would certainly have some difficulty in accepting the schedule of alleged requirements as set out in the middle part of page 7 of the report of Mrs Ravagnani." (P 7 sets out the need for domestic assistance) 173Professor Davis said: "Finally, I have reviewed the report of an occupational therapist, Ms Suzanne Miller Ravagnani and the vocational psychologist, Mr Mark Ravagnani. It seems that they considered that he has much greater disability than was evident on my assessment. While I do not disagree with the general comments on his problems, they point out that he is currently unfit for work, although do indicate that he would be potentially suited for light, manual or sedentary occupation. I agree with the view that he has permanent limitations for physical work. I do not think that he needs grab bars in the shower and toilet and some of the other needs (for example electronic garage doors) seem to be somewhat excessive. The degree of modification to his home seems to be disproportionate to his level of motor bike riding, which requires considerable skill in balance and motor functioning overall." 174In relation to motorbike riding, the evidence would seem to be that the plaintiff resumed riding his motorbike and continued to do so in 2007, 2008 and 2009 but had ceased doing so by the middle of 2010. That was the history recorded by Dr Epstein and Dr Klug. 175The plaintiff's evidence and that of his partner as to his current state of health was as follows. The plaintiff said that he consumed approximately 3 Oxycontin tablets per week and between 16 and 24 Panadeine Forte tablets. He saw his general practitioner monthly, mainly for the purpose of the prescription of painkillers. He said that he tried to only take the painkillers when his neck was particularly painful. The dizziness, which was troubling the plaintiff for quite some time, has now cleared up. 176The plaintiff complained of pain in his neck and throughout his whole back, extending into his legs and hips. There was no complaint to any of the doctors of pain extending into his legs. The plaintiff did not suffer any injury to his low back in the accident. The plaintiff had consistently complained of pain in his neck and thoracic spine and in his shoulders from time to time but not in his low back, extending into his legs. I do not accept that any low back pain extending into the plaintiff's legs has anything to do with the accident. 177The plaintiff said in evidence: "Q. How often does it get crippling when you need to lie down? A. If I do any bending over, like picking up rubbish off the floor, something like that, I could probably do that 10 times and then I'd need to lay down for a few hours. Q. If you sit for long periods over time, how does that effect you? A. It is just uncomfortable. It seems like me back is freezing up, that is why I'm always twitching around." (T.44.10) 178That evidence did not accord with my observations of the plaintiff in the witness box. He seemed comfortable and he was able to move his neck reasonably freely, although it was not necessary for him to engage in much lateral neck movement. None of the doctors who saw the plaintiff received any history requiring him to lie down for a few hours after bending ten times or so. I have concluded that this aspect of the plaintiff's disability is exaggerated. 179In his evidentiary statement the plaintiff said the following in relation to his memory/concentration: "(e) I have problems with my memory and my concentration; I get dates mixed up. I forget things. I have trouble following movies which become complicated. I have difficulty if people discuss things with me. I sometimes "get lost" with the conversation and not follow what they are talking about." 180If the plaintiff does experience those difficulties, I did not observe any signs of it while he was giving his evidence and while he was being cross-examined. That was not the conclusion which Dr Epstein arrived at when he examined the plaintiff in September 2010. I have concluded that this description of his symptoms is exaggerated. 181In that regard, Ms Lawrence gave the following evidence: "Q. What about doing things around the house, what did he say about that? A. He can't, he's useless, he can't do nothing any more, "I might as well just go." Q. What about reading the reader and that sort of thing with the children? A. Well, he had no concentration. He couldn't sit down and read her reader with her any more and he would lose concentration really easy. " (T.112.40) "Q. Why doesn't he prepare their meals? A. Because he gets frustrated and he forgets to eat so if I get a pie out of the microwave or make up a sandwich he will toast it and he will eat it and I know he's eating. Q. Do you do anything about his lunch? A. I normally get it, either a pie or something out of the freezer or a packet of noodles out of the cupboard or make a sandwich and put it in the fridge." (T.113.42) "Q. In doing that you also prepare something for your husband, for Mr Pettigrew to eat? A. That is correct. Q. During the course of the day? A. Yes. Q. But to your observation he could prepare a meal, a simple meal for himself, couldn't he? A. Well, no. Oh, he forgets to eat, that is his problem. If it is not there in front of him he is not going to eat it. Q. You don't put it in front of him, do you? A. No. I leave it either in the fridge on the middle shelf or on the bench. Q. So he still has to go and get it? A. Yes. Q. So he has to remember to eat it? A. If it is there in front of him he seems to eat it. Q. You have seen him prepare food for himself, haven't you? A. Prior to the accident, yes. Q. After the accident? A. I have seen him make a cup of noodles." (T.127.9) 182The suggestion that the plaintiff is unable to remember to eat is not consistent with my observation of the plaintiff's performance in the witness box or with the observations of the neuro-psychologist, Mr Drury, and the psychiatrist, Dr Epstein. I regard that evidence as exaggerated and not an accurate description of the plaintiff's mental capacity at the present time. 183I cannot see any reason why the plaintiff cannot cook, vacuum, clean the dishes or do other light housework. He may have difficulty performing all maintenance work on the cars which they own but the histories recorded by the doctors include references to him carrying out some car maintenance. Damages 184It is against that background that I now come to assess the plaintiff's damages. The plaintiff was born in May 1968 and is now aged 44. He was 38 when the accident occurred. I accept that uninjured, he would continued to work to age 67. The 5 percent multiplier for the next 23 years is 721.2. The plaintiff's life expectancy is 44 years. The 5 percent multiplier is 944.5. Damages have to be assessed in accordance with the CLA. Non-economic loss 185Despite the scepticism which I have expressed about some aspects of the plaintiff's damages, the medical evidence is unanimous as to the serious nature of the injuries suffered by the plaintiff to his neck and upper back and surrounding structures. He was very lucky not to be rendered a quadriplegic. All the doctors agree that continuous pain and restriction in his neck and upper back are reasonable. He will experience these disabilities for the rest of his life. Many activities which the population perform without thinking, he will have to carry out cautiously or will be unable to perform them at all. He will be required to take strong painkillers with their inevitable side effects, for the rest of his life. His ability to engage in leisure activities involving competitive sport or even simple running has been substantially lost. He will always have problems sleeping and getting himself comfortable when in bed. I assess non-economic loss at 40 percent of a most extreme case - $208,000. Past economic loss 186The plaintiff ceased work with the defendant in order to look after his father. His father died in February 2007. I accept that uninjured, the plaintiff would not have resumed employment until some months after his father's death. I accept the defendant's submission that it is unreasonable to expect that the plaintiff would have been able to immediately find employment, once he started looking for it. I am satisfied, however, that uninjured the plaintiff would have been able to obtain employment as a mechanic by 1 July 2007. Accordingly, I propose to calculate his past economic loss from that date. 187The parties are almost ad idem as to the likely earnings of the plaintiff had he not been injured. On the basis that Mr McAlister is now earning $48,000 gross per year, I am prepared to accept the plaintiff's calculation that uninjured, the plaintiff would have earned an average of $661 net per week from 1 July 2007 until the present time. 188The defendant submitted that on the plaintiff's own evidence, he could retrain so as to become a teacher at TAFE in a course associated with motor mechanics. While it is true that the plaintiff did in passing make that suggestion, the Court was given no information about what the job of a TAFE teacher in the motor mechanic field would entail. There was no information provided as to how much practical or physical work was involved, nor as to how long it would take to train the plaintiff and matters of that kind. I am not satisfied that this is a realistic aspiration for the plaintiff. More information would need to be available before the Court would be in a position to assess whether such employment was suitable for the plaintiff and whether the plaintiff had the intellectual capacity to qualify so as to become a TAFE teacher. 189The evidence as to the sort of work which the plaintiff could do is unsatisfactory. All the doctors agree that the plaintiff could not return to the only work which he has ever performed, i.e. that of a motor mechanic. There appears to be a general agreement that he could perform some light work which did not involve strenuous movements of the neck and arms or the awkward positioning of his neck. The work would also have to accommodate the plaintiff's complaints of continuous pain of varying intensity in his neck and thoracic spine, which the doctors accept as genuine. While the doctors described in very general terms the sort of work which the plaintiff could perform, no actual job or jobs were identified. 190One also has to keep in mind that the plaintiff has lived in country areas for all of his life (except for a brief period when he lived with his mother after he and his partner separated). Given his disability, there are now good reasons for that. It is less expensive to live in the country than in a city. The downside is that employment is notoriously more difficult to obtain in rural areas. 191The theoretical exercise which has to be carried out was conveniently summarised in Husher v Husher [1999] HCA 47, 197 CLR 138 at [7] where the plurality said: "7 Since at least Graham v Baker it has been recognised that it is convenient to assess an injured plaintiff's economic loss "by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss". But damages for both past loss and future loss are allowed to an injured plaintiff "because the diminution of his earning capacity is or may be productive of financial loss". Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if injury had not been sustained." 192On the basis of the sparse evidence available, but also having regard to the opinion of all of the doctors who have turned their mind to the issue, it seems to me that the plaintiff does have a residual earning capacity. It is a capacity, however, which it will be difficult for him to utilise. He will only ever be able to perform light work, and he may not be able to perform that on a regular basis. Accordingly, his residual earning capacity is restricted to part time work. I would assess its value at between $150 and $200 per week. 193There was no evidence of the plaintiff having made any attempts to obtain work since his father died. The medical evidence indicates that except for the episodes of dizziness, his physical injuries had stabilised by mid 2007. The episodes of dizziness did not resolve until some time in 2011. Dr Shannon regarded the dizziness as well as the plaintiff's physical disabilities as being something which would make employment more difficult for the plaintiff to obtain and keep. 194Although the dizziness had not resolved by 2010, the medical reports obtained during that year, particularly those from Professor Davis and Dr Weaver in January 2010 and Dr Klug in October 2010, indicate that it was not a major problem. In those circumstances, I propose to award in favour of the plaintiff full economic loss until 1 January 2010 and to then deduct $150 net per week to take account of his residual earning capacity. Using an average earning capacity over the period of $661 net per week that would produce a figure for past economic loss of $150,827. Past loss of superannuation has to be added to that figure, i.e. $16,599. Future loss of earning capacity 195By reference to Mr McAlister's earnings, uninjured if the plaintiff were working for the defendant, he would be earning $772 net per week. While that is significantly less than average weekly earnings of males in fulltime employment in New South Wales at the present time, it is consistent with the plaintiff's pre-injury tax returns which have been tendered. I accept that figure as a useful indicator of what the plaintiff would have been earning uninjured. 196For the reasons already indicated, I propose to deduct from that figure $200 net per week to take into account the plaintiff's residual earning capacity. I see no reason why uninjured the plaintiff would not have continued to work to age 67 when he would have become eligible for the age pension. No reason has been put before me as to why the conventional deduction for vicissitudes of 15 percent should not be applied, and I do so. That being so, I award to the plaintiff $350,550 for future loss of earning capacity. Future superannuation loss would be $38,561. Out-of-pocket expenses 197Past out-of-pocket expenses were agreed at $84,146.00. 198In relation to future medical expenses, I do not accept that a supervised exercise and training program is something which is needed by the plaintiff. He gave no evidence in relation to it. I am not persuaded that the plaintiff would avail himself of that program if it were offered to him. 199In relation to psychiatric/psychological intervention, I agree that this would be of use to the plaintiff. Dr Epstein costed such a program at $3000 and I allow that amount. 200I could well understand that the plaintiff might need a reversing sensor on his motor vehicle, given his difficulty in lateral neck movements and I allow the amount claimed, i.e. $340. 201The attendance on a general practitioner every six weeks for the purpose of prescribing analgesics is reasonable. The cost works out to $9.20 per week. Accordingly, I allow $8,689. 202I share the scepticism of some of the doctors in relation to the proposed gym membership for the plaintiff for the rest of his life. The plaintiff gave no evidence about whether or not he would attend a gym if funds were made available to him. I am not satisfied that he would. I am not prepared to allow that amount. 203Physiotherapy at the rate of $840 per annum was claimed. The plaintiff has not undergone any physiotherapy since early 2007. He did not give evidence consistent with an ongoing need for such treatment. I can well accept that there may be occasions when exacerbations of pain would occur when physiotherapy would be of considerable assistance. I do not, however, accept a continuing need for the rest of his life such as has been claimed. I propose to allow $5000 to cover such periods of exacerbation in the future. 204I accept the plaintiff's evidence as to his need for painkilling medication. The claim is $7.39 per week and I allow it, i.e. $6,980. 205A claim was made for equipment needs amounting to $8604. This was based on the assessment by Mr and Ms Ravagnani in their report. The plaintiff gave no evidence as to such a need. The need for such equipment is not supported by the medical evidence. Accordingly, I do not allow it. 206On the basis of the above assessments, I award in favour of the plaintiff the amount of $24,009 for future out-of-pocket expenses. Past domestic assistance 207Relying upon what the plaintiff said in par 82 of his evidentiary statement, a claim is made for 40 hours per week for 38 weeks at $22.10 per hour. This relates to the period up to 1 February 2007. This encompasses the period immediately following the accident and following the three episodes of major surgery which the plaintiff underwent in September and October 2006. I propose to allow that part of the claim, i.e. $20,155. 208For the period 1 February 2007 until 1 June 2008 the plaintiff claims assistance at the rate of 10 hours per week for 69 weeks. In his evidentiary statement, the plaintiff said that during that time his partner undertook all of the housework and that he no longer mowed the lawn, did any cooking, vacuuming, cleaned the dishes or maintained the vehicles. There is also evidence in the schedule provided by Mr and Mrs Ravagnani in par 5.3 of their report. There they opine that the plaintiff would require assistance in heavy housework, shopping, gardening, home handyman tasks, car cleaning and maintenance. 209No information was provided as to the size of the plaintiff's home and no evidence was given as to exactly what it was about those tasks which would prevent the plaintiff from carrying them out himself, albeit that it may take him much longer than an uninjured person to perform some of them. 210On the basis of my observations of the plaintiff while giving evidence, and on the basis of the medical material, I am not satisfied that the plaintiff could not cook, clean dishes or do some vacuuming and some mowing of the lawn. I do not see why the plaintiff, who at this time was riding a motor cycle and has been able throughout the period to drive a motor vehicle, cannot do his own shopping and put away the groceries which he might purchase. He could certainly do some maintenance on the cars and some cleaning, although I accept that he would require assistance with anything which required heavy lifting. I accept that the heavy aspects of housework, such as cleaning a bathroom floor, or hanging heavy washing would be difficult for him to perform. 211Section 15 CLA provides: "15(2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. (3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided): (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months. ..." 212By reference to s 15 CLA, I am not satisfied that the plaintiff needs at least 6 hours of gratuitous assistance per week. I accept that he would require some assistance with some handyman tasks and that car maintenance may from time to time, require work which was too heavy for him to perform. Although he could do some cleaning work, I accept that scrubbing a bathroom floor would be beyond his capacity. Even making an allowance for the need for assistance in relation to those tasks, I am not satisfied that the need is such as to amount to at least 6 hours of assistance per week. There is no evidence that need for handyman assistance or mechanical assistance has been met since the accident. 213It follows that I reject the plaintiff's claim for gratuitous assistance for the past beyond 1 February 2007. It also follows that I reject the plaintiff's claim for gratuitous assistance for the future. 214This does not end the matter. I accept that if the plaintiff cannot perform heavy home maintenance work when it is required and cannot perform the heavier tasks associated with the maintenance of the family's motor vehicles and that he will have to pay for that work. No information was provided as to whether any actual payments have been made in the past. Accordingly, I do not make any allowance for paid assistance for the past. 215In relation to the future, no costings were provided in respect of paid assistance. Nevertheless, the Court is able to make an allowance based on its general knowledge. It is difficult to imagine handyman assistance being provided at a rate of less than $50 per hour. Mechanical assistance in respect of the family's motor vehicles would probably be charged out at a higher rate. In the circumstances of this case, I propose to allow 10 hours of handyman assistance per year at $50 per hour and 5 hours per year of mechanical assistance in respect of the maintenance of the cars which otherwise the plaintiff would have performed himself, had he not been injured. That would produce a figure of $13,700 for future paid assistance. 216In summary, my assessment of the plaintiff's entitlement to damages, before deducting anything for contributory negligence, is as follows: Non-economic loss $ 208,000.00 Past economic loss $ 150,827.00 Past loss of superannuation $ 16,599.00 Future economic loss $ 350,550.00 Future superannuation loss $ 38,561.00 Past out-of-pocket expenses $ 84,146.00 Future out-of-pocket expenses $ 24,009.00 Past domestic assistance $ 20,155.00 Future paid assistance $ 13,700.00 TOTAL $ 906,547.00