Potts v Frost [2011] TASSC 55

Supreme Court of Tasmania|2011-10-05|Before: Porter J

CITATION: Potts v Frost [2011] TASSC 55

15 - 19, 22 - 25 November, 2, 7 December 2010

Torts - Negligence - Road accident cases - Actions for negligence - Res ipsa loquitur - Motor cycle ran off roadway at a corner - Rider and pillion passenger both seriously injured with no recollection of accident - Inference of negligent riding drawn from circumstances.

Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121; Lafranchi v Transport Accident Commission [2006] VSCA 81; (2006) 14 VR 359, applied.

Knott v Royal Exchange Assurance [1955] SASR 33, considered.

Torts - Negligence - Contributory negligence - Particular cases - Road accident cases - Pillion passenger on motor cycle - Joyride after rider and passenger drinking alcohol - Warning from friend in course of journey - Passenger contributorily negligent to the extent of 30 per cent.

Torts - Negligence - Injuries to passengers - Defences - contributory negligence - Where affected by alcohol - Pillion passenger on motor cycle - Joyride after rider and passenger drinking alcohol - Warning from friend in course of journey - Passenger contributorily negligent to the extent of 30 per cent.

Damages - Measure and remoteness of damages in actions for tort - Personal injuries - Voluntary obligations - Services rendered with no legal or moral obligation to pay - Applicable principles.

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161; Van Gervan v Fenton (1992) 175 CLR 327, followed.

Damages - Measure and remoteness of damages in actions for tort - Measure of damages - Personal injuries - Other matters - Wilson v McLeay damages - Whether parental attendance at hospital "services relating to attendance" - Whether claim precluded by Common Law (Miscellaneous Actions) Act 1986, s5.

House v Forestry Tasmania [1995] Aust Torts Rep 81-331; Torrent v Lancaster [1991] Aust Tort Rep 81-089, followed.

Grimsey v Southern Regional Health Board [1997] TASSC 103; (1997) 7 Tas R 67, considered.

Damages - Measure and remoteness of damages in actions for tort - Measure of damages - Prevailing standards of general damages - Reference to earlier decisions of the court or other courts for the purpose of establishing appropriate award permitted by Civil Liability Act 2002, s28 - Provision applies even though cause of action accrued before date of commencement of section.

Rodway v R [1990] HCA 19; (1990) 169 CLR 515; Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819, applied.

Damages - Particular awards of general damages - Tasmania - 18 year old male - 27 at trial - Incomplete paraplegia - Non-economic loss of $180,000 - Total award of $1,840,335 after reduction of 30 per cent for contributory negligence.

Judgment Number: [2011] TASSC 55

1 In January 2002, Joshua Potts, the plaintiff, was 18 years old. He was single and lived with his parents. On one night in that January, at White Beach in southern Tasmania, he went for a ride on a motor cycle with a friend, Darren Frost. Both were in a group of young men staying at a friend's shack. The bike left the roadway and hit a tree. Tragically, both men were very seriously injured. They are both now paraplegics. Neither has any memory of the accident. The plaintiff has sued Mr Frost, alleging that he was the rider and that he was negligent in the riding of the motor cycle. Mr Frost claims that, in the event of findings that he was the rider and that accordingly the plaintiff was the pillion passenger, the plaintiff was contributorily negligent.

2 For the reasons which follow, I find that the plaintiff was the pillion passenger and that the defendant was negligent in the way in which he rode the motor cycle. This caused the plaintiff injury. The defendant is liable to pay damages to the plaintiff. I adjudge that those damages should be reduced by thirty per cent for the plaintiff's contributory negligence. Taking into account that reduction, I award damages in the sum of $1,840,335.

3 The accident happened on Tuesday 8 January 2002. It occurred late in the evening; the time is roughly estimated to be about 11pm. Police arrived at the scene at 12.45am on 9 January. The location of the accident was White Beach Road which generally runs along the foreshore of White Beach, and very approximately in a north/south direction; more nor easterly/south westerly than anything. At the point of the accident the road is flat with the bitumen surface being approximately 11 metres in width. A short distance from the accident scene, Lagoon Road forms a "T" intersection with White Beach Road, running in from the east.

4 The evidence suggests that immediately before the accident, the motor cycle was travelling from south to north. The motor cycle and the two men were found near a tree down a vegetated embankment, on the western, or beach, side of the road. They were a little under 20 metres past the apex of a right hand bend, following a relatively straight line from the line of the roadway leading up to the corner. The evidence suggests that the motor cycle was travelling on the left hand side of the roadway, with the rider failing to negotiate the right hand turn with the cycle running off the roadway in a straight line, and colliding with the tree. I will come back to greater detail of the accident scene and the location of the motor cycle and the two men.

5 On 7 January 2002 the plaintiff went to stay with friends at a shack at 30 Lagoon Road White Beach. The shack was owned by the father of one of the friends, Aaron Stirpen. Four young men were staying at the shack. In addition to the plaintiff and Mr Stirpen, Adam Bates and the defendant were also there. The defendant is about eight years older than the plaintiff. The four had played soccer together in the same team, and the purpose of staying at the shack was a "sort of team bonding"; a period of "relaxation before getting into pre-season training".

6 The plaintiff drove himself to the shack. The defendant went there on his motor cycle. The plaintiff said that he had known the defendant for a little over a year. In that time the plaintiff had not seen him drive a car, only the bike. In the time he had known the defendant, he had only seen one other person using the defendant's motor cycle. That was just before soccer training and the defendant allowed the other person to ride the bike on the grass.

7 The plaintiff had a motor vehicle licence but not a motor cycle licence, and had never held a motor cycle learner's licence. He said that he did not really know how a motor cycle operated other than a vague idea of the accelerator and brake being on the handles. He had no idea about the clutch or gears. He had had some experience riding as a pillion passenger. When he was about 13, he rode on a motor cycle with his father. There were not very many times when this happened and they involved short trips.

8 The plaintiff arrived at the shack at about lunch time. The group went to the beach in the afternoon, and after going back to the shack, then drove the short distance to Nubeena where they bought a carton of beer. This was early in the evening. Later the four set about drinking the beer. The played a "drinking game". This was described as follows:

"We played a game which is the first time I'd played it, but where we all just sat around and we had little shot glasses of - empty shot glasses and we'd fill it with beer and then you would drink 30 mils, and then a minute later you would have another 30 mils, and then another minute later you would have another 30 mils, and the idea is to get to a hundred and be a 100 club, but -".

9 The plaintiff said it was the first time he had played this game. He went to bed fairly late. He said he got to the 98th shot, went into the bathroom and "was unwell". He thinks that it was about 1am when he went to bed. He has a clear recollection of getting into bed and zipping up the sleeping bag. That is his last recollection. As noted, he has no memory at all of anything which occurred after he went to bed in the early hours of 8 January, and no recollection at all until he was in the Austin Hospital in Melbourne. He was in the Royal Hobart Hospital for two days and was taken to the Austin Hospital on 11 January 2002.

10 As both men sustained very serious injuries of a similar nature, they were both transferred to the Austin Hospital in Melbourne. Both men were later transferred to the Royal Talbot Rehabilitation Centre, the defendant being the first one transferred there. The plaintiff gave evidence of a very short and inconsequential conversation just before the defendant was moved. However the two spoke whilst at the Royal Talbot. Just before this conversation, the plaintiff had been told that the Motor Accidents Insurance Board ("the MAIB") was asserting that he was at the controls of the motor cycle. When he spoke to the defendant, the defendant said that it was amazing that their injuries were so similar; that it was like someone had attacked them with a baseball bat. The plaintiff said that he then told the defendant "the MAIB reckon I was driving". The defendant is alleged to have said that there was no way that he would have let the plaintiff ride the bike, especially if it was not on grass, and that he would never get on the back of it with the plaintiff. The plaintiff was not challenged in cross-examination about this conversation, nor asked about it at all.

11 Mr Bates said that he has known the plaintiff for about 10 years, and the defendant for possibly 15 years. Mr Bates knew that in early 2002 the defendant had a Yamaha motor cycle and had been riding that bike for about two to three years. Mr Bates had not ever seen the defendant with a pillion passenger on the bike.

12 On 4 January 2002 he had gone with Mr Stirpen to Mr Stirpen's father's shack at Lagoon Road Nubeena. He said that a few days later the plaintiff had come to the shack in his own vehicle. The defendant had also come to the shack on his bike, for which there was no spare helmet.

13 On Monday 7 January, it being a rainy day, the four men stayed inside all day entertaining themselves by playing card games and the like. During the course of that day they all drank alcohol. It was still raining the next day, and they did the same thing except for a trip to the Nubeena bottle shop. He said that a carton of beer in stubbies was purchased and taken back to the shack. (I think I am entitled to note that there are 24 stubbies in an ordinary carton.) It was some time in the afternoon when they bought the beer, and that they had started to drink it when they got back to the shack. They played cards and drank the beer. It continued to rain mostly through the night as it had done through the day. In cross-examination, Mr Bates said that there were three who were drinking the beer from the carton. They were the plaintiff, the defendant, and himself. The carton was shared about equally and the entirety of it had been consumed before the plaintiff and the defendant left on the bike.

14 Mr Bates does not remember any discussion about anybody going for a ride on the defendant's bike, but he saw the plaintiff and the defendant leave the shack. At this stage it was dark; he thinks it was late evening but does not remember the time. When the two left the shack on the motor cycle, the defendant was riding it, with the plaintiff on the back. Neither was wearing a helmet. Mr Bates got the keys to the plaintiff's motor car, got into that car, and attempted to follow the two on the bike. He agreed that as far as he knew the ride was nothing more than a joy ride.

15 He was able to follow them left from Lagoon Road onto White Beach Road. He continued to follow the tail lights of the motor cycle. When asked why he followed them, he said: "Just an instinct that it was safer to be - it just felt wrong, no helmets, no - basically no safety gear, just shorts and a tee shirt.... [I] just wanted to be there, just in case."

16 At the time of the accident White Beach Road followed the foreshore to where there was a creek. The road then took a sharp left turn up to a where a bridge crossed the creek. There was a small parking area where the road took the sharp turn to the left. (There is now a bridge across the creek at that point.) Mr Bates said he caught up to the pair just before the bend at a time when the bike was stationary on the left hand side of the road. He said that he was not sure but he thought he pulled up also on the left hand side. He spoke to the two men on the bike. He "suggested to them that they should head back to the shack". He felt that "everything was unsafe." He said that they both agreed and turned around on their bike and started to head back in a northerly direction towards the shack. At this time the defendant was the rider. By the time Mr Bates did a three point turn in the vehicle, the bike was out of his sight and he could not see them at all.

17 He drove along White Beach Road and then Lagoon Road to the shack which took him about a minute or two. The bike was not there when he returned. He and Mr Stirpen then got into Mr Stirpen's vehicle and went looking for the two men. He said that instead of turning left, or south, on White Beach Road, they went in the other direction. Not finding anything, they went back along White Beach Road, and returned to the shack. The plaintiff and the defendant still not being there, they set off again, this time turning left onto White Beach Road from Lagoon Road, effectively retracing Mr Bates' earlier trip in that direction.

18 As they were going south, Mr Stirpen remarked on a red reflection in his rear vision mirror, and they immediately stopped. Mr Bates said he jumped out of the car straight away and went down to a light which he saw in the bushes. The bike was on its side facing in a northerly direction and the two men were about half a metre above the bike (that is, closer to the road), facing the same direction; "Like the bike had just basically fell over and they just fell off and they were just laying there." The defendant was closest to the tree, and Mr Bates saw that both men were injured. The evidence shows that the accident site is 1.1 km from the shack.

19 By reference to police photographs, Mr Bates described the scene as follows:

the motor cycle was lying on its right hand side;
both men were a short distance from the bike but "it kind of looked like they were sitting on the bike, but not actually sitting on the bike" - the legs of both men being the closest parts of their bodies to the bike;
both men were lying on their right sides,
the defendant was closest to the handle bars facing the same direction;
- the plaintiff was behind the defendant, also facing in the same direction.

20 I accept Mr Bates' evidence, there being no reason to doubt its reliability.

Investigation of the circumstances of the accident

21 Constable Darren Leary was on duty at the time and was called to go the scene of the accident. For the purposes of his evidence, Constable Leary's qualifications and experience were explored. For the five years before December 2003, he was attached to the Accident Investigation Branch. He completed a course in accident investigation and reconstruction. In that role he had attended about 270 fatal and serious accidents. He had an additional two years attached to a district traffic section, during which he attended other serious accidents. He said that he had been a "hobby" motor cycle rider before completing a qualification course to become a police motor cycle rider. That training was in about 1995 and he had been a police motor cycle officer for about seven to eight years, which I assume coincided with his attachment to a traffic section.

22 There was nobody at the scene when Constable Leary arrived. It was, of course, dark. He said that the bike was not visible from the road when heading in a southerly direction, and that it was difficult to see it down over the bank in the debris. The bike was in the area of the tree between the roadway and the beach, facing in a north easterly direction. He saw a mark on the tree which he thought was where the bike had hit it, as it appeared fresh.

23 Constable Leary gave evidence of a mark starting just in the gravel verge of the beach side of the roadway which, he said, showed the direction of the bike in the path to the tree. He attributed the mark to the wheels of the bike, although he went on to explain that it would have occurred as a "result of the transferral brakes from front to rear wheel, because you actually put more weight onto the front brakes as you actually apply the brakes, so ..." [sic]. This was further explored as follows:

"You said the mark on the road is consistent with braking of the motor cycle, and did you say something about the load being transferred to the front wheel?....Yeah, it just shows the path that the bike's gone and it just shows there has been a clear transfer - the weight's transferred from approximately - I'd say the rear wheel to the front wheel - not that it's actually locked the bike up, but it's just a transfer of weight from rear to front because of the force."

24 Because of his experience, I accept Constable Leary's evidence as to theses matters. He said that the mark was about 6.2 metres in length, running from the gravel verge to a grass verge. From that point, there was a further 17.8 metres through grass and undergrowth to what he thought to be the point of impact with the tree. A plan of the roadway and mark, hand drawn by him, was tendered in evidence. It is convenient if I attach that exhibit to these reasons as Annexure "A". Although not purporting to be to scale, it was not challenged as a reasonably accurate depiction of the mark as it related to the roadway.

25 Constable Leary's traffic accident report was also tendered. From this, and from his evidence, it appears that there was a speed limit of 60kmh at that point on the roadway. There was no street lighting at the corner. As can be seen from the sketch, the front of the bike is noted as being 24 centimetres from the tree. It is not perfectly clear from the sketch, but the photographs tendered show that the length of the bike was virtually at right angles to the immediate line of the roadway and slightly to the north of the tree. Constable Leary's conclusions were set out in the "Brief Description" part of the accident report as follows:

"Unit 1 travelling in NE [direction] towards Lagoon Rd. Travelling into a right hand sweeping corner the driver of Unit 1 has lost control attempting to negotiate the corner and has travelled down through the scrub & collided with a tree."

26 Constable Leary took the view that the defendant was riding the motor cycle, but this view was based on the information which he had obtained from Mr Bates. No doubt this statement included a reference to the last sighting by Mr Bates of the motor cycle after he had suggested the two return to the shack.

27 In cross-examination, Constable Leary agreed that he was not able to reach any conclusion as to the cause of the accident: "It was inconclusive". He agreed that there were some possible causes that had occurred to him. The first was that the pillion passenger changed his position on the bike which, he agreed, could have an effect on both the driver and the bike itself. He explained this as follows:

"Normally, if you are coming into a corner you use the pillion passenger's weight to help you stabilize the bike, and if all of a sudden the pillion passenger sits upright or comes up out of the aerodynamics of the bike that can upset the structure of the motor cycle and it can cause you know the bike to just react a little bit differently."

28 He also agreed that a sudden application of the front brake "by reason of, for example, the rider suddenly seeing some wildlife in front of him or another vehicle" was a possible cause.

29 There is the aspect of the defendant's blood alcohol level. Apparently at the Royal Hobart Hospital, at 2.41am on 9 January 2002, a sample of blood was taken from the defendant for analysis. A certificate under the Road Safety (Alcohol and Drugs) Act shows that the analysis of the sample showed a nil concentration of alcohol in the defendant's blood. There was no evidence as to what this may have meant in terms of any blood alcohol level at the time of the accident, either in terms of metabolism between then and the time of the taking of the sample, nor any variations which may occur after the taking of the sample. These proceedings do not have the benefit of the presumptions which exist under the Act. Clearly though, the defendant had been drinking in a period not too distant from the accident. No doubt, although Mr Bates did not specifically put it this way, that was a factor in creating his concerns.

30 The last thing that needs to be mentioned in this section is a report of Transport Inspector John Wilson of the Department of Infrastructure, Energy and Resources, dated 30 January 2002. In that report, he sets out the detail of his examination of the bike. He states that prior to, and at the time of impact, the vehicle was in a roadworthy condition. His inspection revealed nothing that could have caused or contributed to the accident.

31 The matter is in issue on the pleadings, but as Mr Read properly conceded on behalf of the defendant, the evidence points to the strong probability that the defendant was the rider. For the following reasons, I am satisfied that the plaintiff was a pillion passenger, and that the defendant was at the controls

32 First, there is the distance from the point where Mr Bates last saw the pair on the bike (with the plaintiff as passenger) and the place of the accident. This is about 200 metres or so. The time of travel between the two points would have been minimal. It is highly unlikely that in the time and distance involved, the plaintiff and the defendant swapped places on the bike. The only alternative scenario is that they rode past the point of the accident, travelled to some other part of White Beach, returned to a point to the south of the accident site, and returned along that road, with the plaintiff at some point having taken over the controls. And this, all the while, evading the searching friends.

33 There are a number of reasons why Mr Bates would not have seen the two men and the bike after the accident when following them after his advice to return. The bike and the men were down an embankment in undergrowth. The area was not well lit. Mr Bates was not looking for them, and would not have been expecting to see them at that point.

34 The plaintiff referred me to a number of cases in which the so called "presumption of continuance" is referred to. A presumption that a person seen driving a motor vehicle shortly before an accident may be presumed to be driving at the time is not, in truth, a presumption. It is matter of drawing an inference. It is, as Dixon J said in Axon v Axon [1937] HCA 80; (1937) 59 CLR 395 at 405, "but a deduction from probabilities and must always depend on the accompanying facts". See also Carian v Elton [2000] NSWCA 175 at [28]. I have explained where I see the probabilities lie.

35 Next, there may be some dangers associated with acting in the absence of expert evidence on the evidence of the respective locations of the plaintiff, the defendant, the bike and the tree. However, this evidence is in my view far more consistent with the plaintiff having been the pillion passenger, than the rider.

36 Lastly, the evidence of the lack of experience on the part of the plaintiff in riding a motor cycle, and the attitude of the defendant to the plaintiff riding his motor cycle as shown by the statement made by him at Royal Talbot, add to the probabilities being in favour of the plaintiff being the passenger.

37 The particulars of negligence alleged are as follows. It is alleged that he:

"(a) failed to keep adequate proper or sufficient lookout;

(b) failed to properly negotiate a corner on White Beach Road thereby causing the motor cycle to leave the roadway and collide with a tree;

(c) failed to stop, slow down, swerve or otherwise manoeuvre his motor cycle to avoid a collision with a tree;

(d) rode the motor cycle at a speed that was excessive in the circumstances;

(e) failed to brake or brake the motor cycle sufficiently or in time or manner so as to avoid running off the roadway and colliding with a tree; and

(f) failed to so control manage and steer the motor cycle so as to avoid running off the roadway and colliding with a tree."

38 In addition, although not pleaded, as to which there is no requirement, the plaintiff relies on the principle of res ipsa loquitur.

39 The plaintiff says that all of the particulars of negligence have been made out, but that in any event the inference of negligence can be drawn from the fact the defendant simply failed to take a slight bend and ran off the road into the tree. The bitumen surface of the road was good and was flat in its relevant section.

40 The defendant submits that it is nothing more than speculation as to what caused the bike to leave the roadway, and that as the plaintiff has not established a cause he therefore cannot prove negligence. Further, the defendant says that the principle of res ipsa loquitur has no application because the fact of the bike leaving a roadway and striking a tree is not an occurrence of such a kind that in ordinary human experience would not occur without negligence on the part of the rider.

41 As to the first part of the submission, reliance was placed on Constable Leary's evidence which I have set out above at [27] and [28]. Possible causes of the accident included the plaintiff suddenly changing his position on the bike causing an imbalance, and any sudden application of the front brake occasioned by an emergency such as encountering wildlife or another vehicle in front of the bike.

42 As to the res ipsa loquitur principle, Mr Read relied on passages from Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121, and Lafranchi v Transport Accident Commission [2006] VSCA 81; (2006) 14 VR 359. He stressed that in Schellenberg, Gleeson CJ and McHugh J at [25] restated the operation of the principle as involving three propositions, the second of which is that a plaintiff may rely on it where the tribunal of fact concludes that the occurrence was of such a kind that it does not ordinarily occur without negligence. (The other two propositions are that there is an absence of explanation of the occurrence which caused the injury, and that the instrument or agency which caused the injury was under the control of the defendant.) I would point out that along with Gaudron and Kirby JJ, their Honours were at pains to stress that the principle was not a rule of law but merely an application of a permissible reasoning process; a description of a mode of inferential reasoning: see [22] - [24], and Gaudron J at [69]; Kirby J at [105] and [121]. At [31] Gleeson CJ and McHugh J said:

"[W]hile res ipsa loquitur may ameliorate the difficulties that arise from a lack of evidence as to the specific cause of an accident, the inference to which it gives rise is merely a conclusion that is derived by the trier of fact from all the circumstances of the occurrence. When it applies, the trier of fact may conclude that the defendant has been negligent although the plaintiff has not particularised a specific claim in negligence or adduced evidence of the cause of the accident. But it does nothing more."

43 In Lafranchi a car had left a roadway and hit a pole. Expert evidence was given on both sides. The issue of the defendant's negligence was whether there had been a sudden unexpected loss of consciousness. At [33] Maxwell P and Neave JA (Mandie AJA agreeing), after referring to a number of cases, said that the decisions cited "do not establish that the RIL principle applies whenever a vehicle crosses to the wrong side of the road, or veers off the road, or in some other way 'ends up where it ought not to be'. This proposition was advanced as if it were a principle of law, such that any judge dealing with a motor vehicle accident of this kind would be constrained by authority to conclude that the principle applied" [original emphasis].

44 Their Honours went on to say that the cases decided no such thing; what they did show was that "in a case where a vehicle ends up off the road, on the wrong side of the road, the RIL principle can apply". Their Honours agreed with the proposition that "the mere fact of losing control of a vehicle can establish negligence on the driver's part - but (it follows) it will not necessarily do so ... Where it applies, the RIL principle assists in the proof of matters of fact."

45 In Lafranchi, the Court held that on the expert evidence, it was shown that accidents of the type under consideration might or might not involve negligence. That being so, the occurrence had not been shown to be of the required kind, and the principle had no application. It is this aspect of Lafranchi upon which the defendant particularly relies. The defendant says that the accident might have involved negligence, but that it may not. However, the evidence in that case was not of evasive action or braking, and the expert opinion was that crashes of that type were characteristically caused by anything ranging from simple distraction to catastrophic loss of consciousness.

46 A useful starting point for the resolution of the issue is the observations of Reid J in Knott v Royal Exchange Assurance [1955] SASR 33, which remain pertinent. At 38 - 39 his Honour said:

"Collisions between vehicles, and between vehicles and pedestrians are so frequent, and the circumstances under which they occur exhibit such a diversity of human conduct, that usually no safe ground for presuming negligence is to be found in the mere happening of an accident occasioned in either of those ways. On the other hand, if a motor car which is being driven along a road suddenly overturns or runs off the road, there is at least ground for saying that the occurrence is unusual, and evidence of negligence may be found in its happening much more readily in the other classes of cases."

47 In this case, the line of travel as shown by the braking mark which commences at the gravel verge is of particular significance. The mark itself commences at a point just before the apex of the corner. Expert evidence is not required to conclude that, allowing for human reaction and mechanical response times, the braking action would have occurred a little distance before the commencement of the mark. Following the line of the roadway to the commencement of the mark shows that the rider had commenced to negotiate the corner but ran too wide as the angle of the corner increased, and basically travelled in a continuation of that line of travel towards the tree. The braking occurred just as the bike was leaving the bitumen surface. If the defendant had been forced to take evasive action for whatever reason, a far more sudden divergence from the previous line of travel would be likely. The line of travel as shown by markings is likely to have been quite different. I think it is more likely that the angle of the line of departure from the roadway is likely to have been more acute.

48 That, at least, is sufficient to put the case in a category of the kind of occurrence which does not ordinarily occur without negligence. That evidence makes the inference of negligence a more likely explanation. It is more consistent with negligence than with an innocent cause. Whatever the precise cause of the defendant running off the roadway, whether it be inattention, speed, or merely a failure to properly control the bike, or any combination, I am satisfied that it was negligently managed and that the defendant's negligence caused the accident. I think it is most likely to have been a combination of speed and inattention. At the least, I am satisfied that particulars of negligence (b), (c), (e) and (f) are made out.

49 The first allegation of contributory negligence is that the plaintiff travelled on the bike without wearing a crash helmet so as to unnecessarily expose himself to injury. The principal remaining allegations of contributory negligence are of travelling on the bike when the plaintiff knew or ought to have known that it was unsafe in the circumstances, and of failing to alight from the bike at a time before the accident. The "circumstances" are said to include the consumption of alcohol by both plaintiff and defendant, the nature and state of the road, the purpose of the journey, and the plaintiff's lack of experience as a pillion passenger.

50 I will deal firstly with the discrete ground of the failure to wear a helmet. It is an allegation of failure to do something which may have lessened the severity of injury. It was an issue on which the defendant called no evidence and was not one which was enthusiastically pursued in closing submissions. The defendant needs to establish that there is a causative link between the failure to wear a helmet and a particular injury, or a particular degree of severity of injury. In addition to the spinal injury, the plaintiff suffered a closed head injury. External head injuries were predominantly to his face. There is evidence of some cognitive deficits arising from the head injury. A clinical psychologist, Dr Jennifer Nichols, described different mechanisms of closed head injury in which the brain hits the front and back of the skull interior, or rotates on its stem. This causes bruising and possibly long term cognitive deficits. Dr Nichols said that such deficits in the plaintiff could be explained by a closed head injury.

51 In the defendant's case, some documents were tendered but these were not of a medical nature, and no witnesses were called. After the defendant's case had closed, the plaintiff sought to tender a number of expert statements and reports which had been served by the defendant's solicitors.[1] One of the proofs tendered was from a consultant rehabilitation physician, Dr David Burke. The evidence of both he and Dr Nichols is to the effect that whilst the wearing of a helmet may possibly have prevented or made less serious the closed head injury, it is not possible to be at all precise, and it is quite likely that the plaintiff would have suffered the same degree of injury in any event. This type of issue was discussed in Taylor v Scriven [2007] WASCA 208 at [13] - [15], in which the evidence was that a securely protected head could be less vulnerable to injury than a lesser protected head in a high velocity impact, and that the plaintiff's head injuries were of the type seen with persons wearing securely fastened helmets. Wheeler JA (Pullin and Buss JJA agreeing) at [15] said that on the evidence, although it was possible that the plaintiff's injuries would have been reduced if the helmet had been secured, there was no evidence from which it was open to conclude that such an outcome was probable. Similarly, on the evidence in this case, I am not able to conclude that it is more likely than not that the head injury would not have been caused or would have been of less severity, had the plaintiff been wearing a helmet.

52 As to the remaining allegations, the defendant argues that the journey undertaken by the pair was no more than a joy ride; other than that, it had no purpose. On the evidence of both the plaintiff and of Mr Bates as to what occurred the night before, and of Mr Bates as to the particular night, I am satisfied that both the plaintiff and the defendant had been drinking in a period not too long before they set off. Assuming the carton contained 24 stubbies and that the completed carton had been shared equally between three, each of the plaintiff and the defendant had consumed eight stubbies. Mr Bates' evidence would allow a finding to that specific effect, but at the least, I am satisfied that the defendant had drunk more than a negligible amount; at least several stubbies. There was no evidence about how either the plaintiff or the defendant appeared to be just before they set off, and there was no expert evidence as to the effects of drinking. However, in terms of contributory negligence, I think that a reasonable person would or ought be aware that someone who has had at least several drinks of alcohol may be less well equipped to manage a motor cycle on roadway with a pillion passenger on board, than one who has not. In this context, account should be taken of the nature of the roads around White Beach, the time of day and the weather. All were factors known to the plaintiff.

53 I think of considerable importance in looking at this question, is the reaction of Mr Bates. His immediate reaction was that the two setting off on the bike was "wrong". He specifically mentioned the lack of safety gear, but he also said that he felt "everything was unsafe". His feelings were strong enough to prompt him to immediately follow the pair in the plaintiff's motor vehicle, even though he himself had been drinking. Having caught up with them he told them to return to the shack. Although there was no warning in any specific terms, Mr Bates' action ought to have alerted the plaintiff to the risks of what he and the defendant were doing. This sort of situation was considered in Holden v Robertson (1987) 6 MVR 468. A warning had been given to a prospective pillion passenger by an off-duty police officer that he and the rider should not be riding the motor cycle because they had been drinking. At 476 Asche CJ said that "once the constable had spoken the plaintiff was on notice and should have more closely examined the defendant or more carefully thought about continuing with him and should not have continued. In doing so he was careless of his own safety".

54 After being spoken to by Mr Bates, the plaintiff could have quite easily walked back to the shack. A less safe option, but perhaps one less unsafe than continuing on with the defendant, was to get in the car with Mr Bates. In any event, I am of the opinion that a person of ordinary prudence would not have gone riding on the motor cycle with the defendant in all of the circumstances. That is more acutely so after Mr Bates had spoken to the pair. The plaintiff has unreasonably exposed himself to a risk of injury. The risk was in part caused by the reduced capabilities of the defendant because he had been drinking. I find that the plaintiff was in breach of the duty to take care of himself and thereby contributed to his injuries.

55 What needs to be considered are the comparative degrees of responsibility. The exercise is to assess the degree of departure from the standard of care of the reasonable person, and of the relevant importance of the acts of the parties in causing the damage. I have expressed my view as to the likely immediate cause of the bike leaving the roadway. On the basis that the plaintiff was negligent in going on, and continuing with the ride with the defendant in the circumstances, and making, as best one can, a comparison of the respective departures from the relevant duties of care, I think it is just as between the parties that the plaintiff be held liable for his own injuries to the extent of 30 per cent.

56 I will set out the material relevant to the plaintiff's pre-accident state, followed by an overview of the injuries suffered, their immediate treatment and broad long term consequences. I will then deal with the plaintiff's post-accident state and a number of issues which deal with the assessment process in the broad. All of the facts stated are my findings unless it is otherwise explicitly or impliedly clear. After this section I will turn to the individual heads of damages claimed.

57 The plaintiff's date of birth is 13 October 1983. Up until about grade 8 he lived with his parents and younger sister in Canberra before moving to Hobart. He finished year 12 and had enrolled in an economics degree course at the University of Tasmania. He was due to start at the commencement of the academic year in 2002, but the accident intervened. I will later discuss greater detail of his performance in college subjects.

58 Both his parents had been in the RAAF, his father having been in that service for about 20 years. The plaintiff said that since he was a child he was interested in joining the defence force in one capacity or another. In September 2001, he made application to join the Australian Defence Force Academy (ADFA) in Canberra with a view to being an Army helicopter pilot. At the time he was on medication for acne. He said that he was told his application would not be considered until he had not been using the medication for a period of six months. He decided to stay on the medication. Although he enrolled in the economics degree course, he still had a desire to become an Army officer. He said he wanted to be a pilot, but if that was not an option then he would have been happy "doing fairly much any other job". At the beginning of 2002 his intention was to pursue his university education and to apply to join the Army Reserve when he could.

59 Apart from his acne, his health was good and he was physically very active. As previously mentioned he played soccer, a sport in which he was particularly interested and at which he seemed to excel. He was playing in senior divisions from a young age, making the A grade men's team on a full time basis when he was 17, having had some experience in that division from when he was 14. The season which finished immediately before his accident, was his first full season with the senior team, he being the second highest goal scorer for the club. He started competing when he was in primary school. Before moving from Canberra, he and a friend, when they were in their early teens, coached an under 7s soccer team which he described as one of the highlights of his life thus far. He said he enjoyed very much looking after them and teaching them how to play soccer. His parents were very supportive of him in his pursuit of soccer. When asked whether he intended to continue playing into the future, he said that it was his dream to play: "I've always played soccer, it's always been my one love and ever since I was five, and I just play it all the time, ...".

60 In addition, he refereed soccer games from about the age of 14, often doing several games at a weekend, as well as playing in a game. He also represented his college in athletic carnivals in the two years he was there. The triple jump was his speciality. In addition, he played badminton in a mixed college team in years 11 and 12. He said that when he was at school he had a lot of female friends; he was "very social with the other sex", but that he had not had sexual intercourse before the accident. He said he had some good friends, with a circle of male friends, and a circle of female friends who would get together every lunch time and go to parties; "we were all hanging out together". He was asked about his thoughts of getting married. He said:

"It was always - always been, you know, a dream of mine, ... that you know one of my - one of my dreams has always been to, you know, get married, have kids and teach them how to play soccer just like - well not like my dad, he couldn't play soccer, he was terrible, but you know, hopefully do that."

61 The plaintiff arrived at the Royal Hobart Hospital at about 2am on 9 January 2002. Many and varied investigatory scans and procedures were carried out. In the ICU he was intubated, ventilated and sedated, catheterised and placed in a drug-induced coma. On 11 January he was transferred by air ambulance to the Austin Hospital in Melbourne. Further diagnostic scans and investigations were undertaken. The predominant injuries were as follows:

Burst fracture of L1 vertebra.
Fractures to the T2, 3, 4, 5, 8 and 9 vertebrae.
Head injury with a fracture at the skull base.
Multiple rib fractures predominantly to the left.
Interspinous ligament injury at T - 3, 4 with haematoma and oedema in the cord at that level.
Haematoma in the spinal cord at T12.
Multiple facial fractures and soft tissue injuries involving the right and left ethmoidal and frontal sinuses.
Multiple rib fractures.
Multiple fractures of the scapula.

62 The treatment he received at the Austin Hospital was extensive, and his time there was a very painful and traumatic one. A tracheotomy was performed on 14 January 2002. On 19 January 2002 corrective facial surgery was performed which involved an open reduction and internal fixation of the various fractures. Titanium plates were inserted above the right eye socket and into both cheekbones, with the jaw being wired. Two days later, he underwent major spinal surgery. This is described as an L1 corpectcomy and T12 - L2 fusion with Kaneda implants, titanium mesh cage and a rib and local bone graft. This involved removing the crushed body of L1 vertebra and replacing it with a titanium mesh cage filled with bone taken from the left tenth rib and the body of the L1 vertebra. T12 and L2 vertebrae were used fused together with a side implant and screwed into place. A postero-lateral T-T5 fusion was also carried out. Screws were placed into the pedicles on each side of the vertebrae and joined on by rods.

63 While those procedures were carried out, a feeding tube was inserted through the abdominal wall into the stomach. On 27 January the plaintiff was moved from ICU to a ward. It was a few days later when the tracheotomy tube was removed and the plaintiff was first able to gain a full understanding of what had occurred, and to talk to his mother about it. His first reaction was that he was "fucked" because he could not play soccer, although as he explained it in his evidence, "But then that was the least of my worries ...". He had a lot of periods when he was depressed after finding out about his condition. He cried a lot and had nightmares.

64 His time at the Austin Hospital until late March 2002, and then at Royal Talbot until coming home on 10 July 2002, involved intensive recuperative and rehabilitative processes. The daily routine at the Royal Talbot consisted of physiotherapy and occupational therapy. Essentially, the training was directed to achieving a high level of independence. Included in the instruction were issues relating to showering, toileting, wheelchair skills, and cooking and other domestic skills.

65 His six months spent at the two hospitals was marked by a number of severe and ongoing complications, the principal of which were:

a constant bowel infection which caused severe alternating diarrhoea and constipation, requiring him to be frequently washed down, and at one stage requiring 10 days in a dark isolation ward;
periods of deep depression, exacerbated by the bowel infection, and culminating in a request for nursing staff to "shoot" him;
severe pain in his right hip leading to extensive investigations for what was suspected to be heterotopic ossification (new bone growth in muscle tissue). This pain persists but is thought to be an imbalance in muscle operation;
body spasms which involve sudden outward flexing of the legs from the quadricep muscles causing severe pain in the legs and right lower back. This condition persists and is treated with the drug baclofen;
constant bladder infections due to the indwelling catheter until April 2002. (The plaintiff is unable to urinate without self catheterisation);
a bad pressure sore on his sacrum, which sore was in excess of the size of a 20 cent piece and which took quite a time to heal;
bouts of anger and frustration at his inability to perform simple mental tasks posed for occupational therapy purposes.

66 In short summary, the plaintiff is an incomplete mid-level paraplegic, the "incomplete" referring to the fact that he has some sensory function and some motor function in his lower limbs, but not to any great practical effect. He has an acquired brain injury with some cognitive impairment as a result, and with a loss of sense of smell and mostly of taste. He suffers bowel and urinary incontinence and loss of sexual function. The evidence is that his life expectancy has been reduced by approximately 10 per cent. There is potential for physical deterioration and an increase in the levels of functional impairment. He has a full insight into his disabilities and appreciation of the loss which he has suffered.

The plaintiff after the accident - the injuries and their consequences

67 When the plaintiff returned to his home in Lenah Valley, his time was mainly taken up with physiotherapy. He had been introduced to wheelchair tennis at Royal Talbot, and that became a regular part of his regime. Modifications were required to the Lenah Valley home. These included a new bathroom, a new bed and wardrobe, new heating, and carport extension to accommodate the movement of his wheelchair.

68 Although regularly occupied with therapy programs, the plaintiff said that he was bored and decided to re-enrol for the economics degree course. He started at the University of Tasmania in 2003, but soon struck difficulties. His problems with incontinence frequently led him to be late for lectures, and on one occasion, to miss a test. His absence of sense of smell means that he is not able to readily detect when he has fouled himself, and the embarrassment level is high. Furthermore, he found difficulties in maintaining his concentration. He found that he was not able to learn what he studied. He felt isolated and depressed. He managed to survive in the course through to the end of 2005 but was then excluded. After successfully appealing his exclusion, he was reinstated on a reduced workload, but was required to pass a number of subjects in 2006. This he failed to do, and at the end of the first semester in 2006, having lost his motivation, he did not re-enrol. He says that but for his injuries he thinks he would have been able to successfully obtain his degree. He found the facilities for disabled people somewhat lacking, and struggled to cope generally.

69 In 2005, the family moved home to a place in Rosetta where they still live. The plaintiff was having arguments with his father who was significantly suffering from a work-related back injury. They found a house with a self-contained flat underneath in which the plaintiff now lives. His mother does most of his domestic chores for him. He mostly has his evening meal with the family, negotiating a rather tricky course around the front of the house to get there, and a steep descent at the back to return. He wishes to live independently.

70 In December 2007, the plaintiff was able to find employment with a financial institution, having sought the assistance of the Commonwealth Department of Education, Employment and Workplace Relations. He said he was actively playing tennis and needed the money. It was negotiated that he start on a part time basis, but after a few months, he was required to work full time due to a merger with another organisation. He has now completed two TAFE courses, a Certificate II in Business, and a Certificate III in Financial Services. He is still employed on a full time basis, working from 8.30am to 5pm, but would like to reduce his hours.

71 The plaintiff's level of independence is much higher because of his ability to drive. After some initial difficulties with approval from an occupational therapist - which seem to have been resolved by the provision of a report from a neuropsychologist - he was able to obtain the relevant driver's licence. This was about two years after he came home. His pre-accident vehicle was of no use, and he got another vehicle which was modified for his use. That is now of some age and well worn. The family vehicle has also been modified for his use, because of difficulties he was having getting in and out of his own, particularly when manoeuvring his wheelchair tennis equipment.

72 The incomplete paraplegia means that the plaintiff has full sensation down to his nipples, with patchy sensation to his abdomen. From that point, he describes it as "just pins and needles until about half way down my shins and I can't feel my feet at all". On his back, the patchy sensation starts at about shoulder level. He has some movement in the quadricep muscles in his legs, but nothing of any real effect. He is able to shuffle or fidget around on his seat, which is a little fortunate because the partial feeling in his buttocks means that he gets a burning sensation when he sits all day. Scoliosis is present in his spine, causing him to lean slightly to the left.

73 He has had pressure sores. One developed on his sacrum while he was in the Austin Hospital. Shortly after he returned home, his mother discovered one on his right heel, and in 2008 one developed on his right buttock which he had to ask his mother to investigate and confirm. These sores have to be cleaned and dressed, the last one requiring a few visits to the general practitioner over a period of about a month. The plaintiff said that he checks nearly every day as far as he is able with the use of a mirror.

74 In terms of cognitive deficits, the plaintiff says that when he is under stress and he is required to learn new things, he does not learn as fast as he used to. Previously, he could comprehend things with one reading, but it now requires a lot more work for him. He said that he was not a slow learner, but that is what is now happening. The plaintiff's mother, Mrs Lee Potts, gave evidence that his short term memory was bad when he was in hospital, and although it had improved somewhat, "it takes him longer - you used to only have to tell Josh something once and that was it; now ... he takes a bit longer to remember some things, not everything, but some things."

75 The facial injuries caused the loss of the sense of smell and most of that of taste. He is able to taste things which are strongly salty, spicy or sour, but otherwise if things are bland, he cannot taste them and has no interest in eating them. He misses these abilities, and said that this loss is a lot worse than it seems. He often does not finish meals.

76 I have already mentioned the spasms in the upper part of the backs of his legs. They are a constant part of his life. They occur daily, almost always in the morning, but sometimes at night as well, and they are also less severe. This is notwithstanding that he takes the maximum dose of baclofen. He has had Botox injections and intensive stretching, but the spasms continue. In the morning, the spasms occur when he gets in the shower and is prepared for them. They dissipate after between 5 to 15 seconds. The plaintiff said that his body below the level of the lesion does not seem to sweat and cannot properly self-regulate its temperature; the spasms are even more frequent when it is cold. The cold "really affects" him.

77 As I mentioned before, the plaintiff has to self-catheterise in order to urinate. When and how he does this depends on his intended activity. Ordinarily, he carries out the procedure about four to six times a day, depending on how much he has been drinking. The catheter is inserted and he is able to discharge the urine directly into a toilet. He does not have sufficient feeling to enable him to detect the need to urinate. He gets a sensation like a full stomach, but generally just attempts to judge things. He suffers from urinary incontinence which means that he "leaks" between 20 to 100mls a day, again depending on how much he has been drinking and the number of times he has voided his bladder. This can cause embarrassing wet patches on his clothes and is particularly bad if he is playing tennis without the in-dwelling catheter.

78 An alternative means of urination is by means of an in-dwelling or, as he called it, "a semi-permanent" catheter. It is one which is put in place and connected to a bag which in turn is attached to his leg. This type constantly drains, and it is a question of feeling it to see how full the bag is. He is able to use an "able bodied" toilet to empty the bag. He said that he uses this catheter about once a week, mostly when he is going out with friends, and having a few drinks He also uses one when he is playing wheelchair tennis. There is a surgical procedure available to remedy the urinary incontinence, and which involves the installation of an "artificial sphincter". Essentially, it is an air inflated device which closes off the urethra, and when released allows urine to pass. The plaintiff said that he would like to undergo that procedure. He approached the MAIB for the funds for this procedure, but as his entitlements had expired, it would not accommodate him.

79 Constipation is a continuing problem. He regularly takes Senokot, a brand name for a natural product of the senna herb. The plaintiff has to evacuate his bowels by a direct manual process. This involves him massaging his abdomen and stimulating his rectum by digital penetration using a rubber glove and gel. Ordinarily, he does this every second day, but maintaining a balance between constipation and uncontrollable diarrhoea seems to be a constant battle. He has little feeling for when he needs to evacuate his bowels. By palpation, he can roughly assess, as he put it, "that at some time today either I'm going to have an accident or I've got to go to the bathroom". He said that sometimes he becomes paranoid and feels himself by putting his hand under his buttocks every 20 minutes or so. He finds this to be very embarrassing when he is at work, and often ties to disguise what he is doing as a readjustment of his clothing and the like.

80 When he has diarrhoea he sometimes has bad accidents which result in soiled clothing and he needs to go home, shower and change. This can happen at any time. If in bed at home during the night, he enlists his mother's help. Obviously, these incidents can cause significant disruption. On one occasion when he was in Melbourne playing tennis, an extremely bad episode of diarrhoea prevented him from going to a dinner, and took a considerable clean-up effort on the part of him and his mother. Mrs Potts gave evidence of three occasions on which she had to rescue him from university after bowel accidents, and two such occasions when he has been working at MyState. There are of course degrees of bowel accidents. The two most extreme events are the evacuation of the faecal matter, and the more extreme form of actual diarrhoea. Mostly, and fortunately as the plaintiff said, the bowel accidents occur at home. With this problem also, there is a surgical procedure available, called an ileostomy. It involves taking the small bowel to an external opening in the abdomen where the contents are collected in a bag attached to the abdominal wall. The bag is simply emptied once or twice a day. He does not presently wish to have this procedure done.

81 The plaintiff is not able to obtain a full erection and to have normal sexual intercourse. Rather than attempt to accurately summarise his evidence as to the situation and his experiences, it is best if I allow him to explain it for himself. His evidence was as follows:

"Can you have sexual intercourse?......Um, my ability to get an erection is gone. I can get a - I can get a semi-erection, but it's not, not useful enough to - to do anything with. It's not - it's not even - it's not hard enough, it's not just - there's no - I just can't, I can't do anything it's that embarrassing. And there's been that many times when I have, you know, met a girl and wanted to go home with her and it's just that embarrassing, I've got to come up with an excuse as to why, you know, she'll invite me home and I've to come up with an excuse as to why that's not a good idea and I'll go home by myself.

Have you tried means by which you can achieve a harder erection? I've tried everything under the sun. I have,... I started off with, you know, the tablets, so I've tried Viagra and Cialis, we tried that, and they had - all that I would get out of that was a semi erection for 24 to 48 hours, it was just no point to it at all. And then I went along and had - after that, ... trying every dose of that from the smallest to the highest, we went along to see a guy ... at the Royal who's a nurse there who deals with those areas, and he has the injections, or Caverject, and I'm not sure what the other - the other type one that only - so Caverject was no good and I tried from the lowest dose to the highest dose. I had a long partner, this was back early to my accident, I had a long term partner who was very forgiving with me and ... I tried every injection from the lowest to the highest and it didn't do it, so the guy even said - put me on this other drug which he said they don't even use in paraplegics anymore because it had the problem of giving people erections for too long so they were having to come into hospital to get rid of them and I had that one and there was still - from the lowest to highest and there was still no effect so then I moved onto what's called the penis pump. So I've used that one with very limited success in that, you know, you get - you get an erection out of it but you get a big - it takes about - it took about forty five minutes to get an erection that way and that time of just pumping the thing and in that time all romance has definitely gone and - and at the end of it you end up with an erection that is blue and red and looks like it's bruised and it's not - not very attractive at all, and then - and then whilst we were having intercourse, ... that was all well and good, but within about - it was only about two minutes, if even that, that the ring that was holding all the blood around the penis, because of the motions and the movement it just - it moved and the blood flowed and the erection had gone down to a level that it was no longer sufficient, but it wasn't - it didn't go down far enough that it was - that we were able to get the ring off, so we then spent another thirty minutes trying to get the ring off. So we had like an hour and a half, or an hour and fifteen or whatever it is, and for two minutes of intercourse and so that didn't get tried very often because it was that frustrating and my - my penis looked extremely - looked bruised for the next two, three days and it was just - it didn't look good when I was in the shower at all.

All right, thank you for that. Can you ejaculate?......The irony there, yes, I can, but I can't even get an erection so I don't know how that works, but it's a semi - semi erection and I can, but you know with stimulation, but it's - I don't understand why.

And do you have any feeling when you ejaculate?......I get - I get some sort of feeling but it's not - it's not the same, it's obviously a different - different feeling, it's - it sends my spasms - I do spasm when I'm doing it and it's not - it's not the most pleasant thing but it's not the most unpleasant either, so it's sort of a - I'm not sure what the feeling is, but -"

82 As to this disability, he has discussed with a urologist an option of a permanent penile implant. This involves an inflatable tube inserted down the side of the penis, with a small balloon-like device in the scrotum. It makes the penis air inflatable. He has expressed an interest in having the procedure but said that he wanted a partner to discuss it with at the relevant time, because it was a serious step and there were some complications. He has not yet discussed the issue with his recently found partner.

83 Not surprisingly, the plaintiff has suffered bouts of depression, and continues to suffer general anxiety and panic attacks. He generally cries more often, saying in evidence that he feels he has lost control of his emotions. He has moments of acute embarrassment, and also moments of annoyance when people ask him what happened, challenge his level of disability, or show a prurient interest in his sex life.

84 In 2003 he took antidepressant medication for a while but found the side effects difficult to deal with. Sometimes he gets worried and distressed, particularly about how things might unfold in the future. For a time he had panic attacks lasting for about 20 or 30 seconds. Those attacks continue, but to a much lesser degree. He has "moments" during which he gets deeply distressed at his loss and cries. He often has "negative thoughts" about embarrassing moments in the past with his incontinence problems, and generally about what the future might hold. He explained this as follows:

"I think about what's going to happen in the future. I think about, you know, what possibly can and can't happen. What, you know, what if such, you know, what if - I just think about the future and I can get just down on that. And I think about what I would have been doing when, you know, there will be some - I'll be like, 'Oh, I would love to have done that', and then the next minute I'll be down. I don't always - I don't always cry but I can get quite, you know, feel - get quite a few feelings of depression and it brings my mood down and that happens, you know, reasonably regularly but I am coping with it at the moment."

85 The plaintiff's body is considerably scarred due to the surgical procedures, although he does not seem to be overly concerned at the disfigurement. The major scar runs from the lower right abdomen at an angle upwards across the left lower rib area and up to a point at about mid-spine level, halfway between his side and the spine itself. There are very obvious suture marks. There is also a vertical surgical scar starting at the base of his neck and finishing just below shoulder blade level straight down the line of the spine.

86 The plaintiff is able to get himself out of bed in the morning, and by use of the wheelchair, make his way to the modified shower. He showers whilst seated, puts himself back in the wheelchair and then dresses himself. The dressing exercise he finds to be extremely difficult. He is able to put himself into his vehicle, and then dismantles the wheelchair and stows it in the car. This is a rather arduous process which I saw him perform by way of a view, at his home. When he goes to work, the reverse wheelchair process happens when he reaches his car park, and of course the reverse two procedures occur at the end of the working day. He says that he is "just buggered" when he gets home from work, and normally has a sleep before dinner. His mother cooks his dinner for him, but on occasions when she is away, he fends for himself. He says however that on those occasions he tends to sleep when he gets home, eats later, and less well. He goes upstairs for his dinner; if it is raining his mother brings the meal to him. The kitchen facilities in the flat are not entirely suitable for people with his disabilities.

87 When spending time in the flat, the plaintiff needs to be careful about temperature control. He has four panel heaters in order to heat up the entire area. There is a difficulty with his body self-regulating temperature. He is seriously affected by cold. He is generally a lot more uncomfortable when cold, and when he gets cold, he suffers more spasms.

88 His mother helps him when he has soiling accidents through diarrhoea. She does all his washing and makes his bed. There are no laundry facilities in his present flat. The plaintiff gave evidence that he wanted to move out of the flat when financially able to do so. He was asked what issues he thought were important in making him want to move out. He replied:

"The independence. I want privacy from my parents. They're upstairs, they're on their own, but they still - still too close to live to your parents. You know, the - I just want a place of my own. I want to you know look after myself. I just want to be independent and, you know, while I appreciate everything my Mum does for me, I wouldn't - yeah, I do want to do it - go out and live by myself. That's what I've, you know, I've always wanted to do. I didn't see myself at - what am I, 27 - and living at home."

89 There are things which he would be able to do if he lived independently, and things which he could not do. He is capable of looking after himself personally to the extent already discussed. With suitable facilities he would be able to cook and prepare meals. He can look after his feet - for instance clipping toenails - but does suffer minor injuries to his feet. He says these are things for which he should go to a podiatrist "but I don't have time to at the moment".

90 Although the plaintiff said that he could not do normal garden maintenance, he said that he would like to have a house with a little bit of garden so that he had some space between him and the neighbours. He thinks he would struggle putting the rubbish bin out. He cannot do that at his present because of the slope of the driveway. He thinks he would generally struggle with the task. Depending of course on height, he says that because of his long arms, he can reach to the back of things such as fridges and cupboards, but generally finds vacuuming and cleaning floors difficult. He said he tried vacuuming but when he pushes the cleaner one way, his wheelchair goes the other. It is the same with mopping. He cannot see himself changing the bed linen; "in fact it would be a great difficulty".

91 As far as shopping is concerned, he has done trips to the supermarket for a small number of items. He has tried to push a supermarket trolley but, I infer, it was too much for him. He said he would not be able to do a family's grocery shopping.

92 Generally, the plaintiff said that he valued his independence very highly, that he craved independence from his mother, and was a person who wanted to get on with things in life. In her evidence, Mrs Potts confirmed the domestic chores which she did for the plaintiff. She thoroughly cleans the flat once a week, which includes vacuuming and washing the floors, scrubbing the bathroom and trying to remove marks from the walls left by the wheelchair. She cooks for him every evening and makes his bed on a daily basis. She changes the bedding and does all his washing and ironing. Occasionally she vacuums his car.

93 The plaintiff presently works in the Retail Service and Support section of MyState Financial, which is a "call centre" type environment. His daily tasks include dealing with direct debit issues such as where the authority has been cancelled, the wrong name has been used, etc, setting up periodic transfer payments, resolving ATM disputes and other issues, dealing with stopped cheques and generally, as he described it, acting as "a help desk for the branches". The internal level at which he works is described as "entry level", but the manager of the section, Ms Tracey Walker, said that he was very competent in the role which he performed. "It's a repetitive task, so he - the work flow itself is the same on each occasion, so he performs that to a high standard. ... He works very well with the colleagues that he has in his team, so he's a very good team player and gets on very well with his team members."

94 In his evidence, the plaintiff was asked whether he thought he could continue to work in this job full time, or whether he was finding it too demanding in the physical sense. He said that he thought at some time he was going to wear out because he was already wearing out. He gave an instance of not long beforehand being run down to the extent that he got shingles and was having heart palpitations. He thought that working full time did take its toll. It was very difficult for him to work full time and fit in the medical and physiotherapy appointments which he needed. He could not see himself working full time for long in the future. Ms Walker said that they had noticed that he tires during the day. He took longer to do things such as going to the fax machine, and his tone of voice tended to plateau to the extent that his hours on the customer 'phone line had to be limited.

95 When asked as to how he would cope living independently and at the same time working full time, he said that he could not see that he would be able to do both; that is, do all the things necessary to look after himself and to work full time. He more saw himself working on a part time basis. He pointed out that that is what he had originally applied for and the basis on which he had started. Ideally he would like to work part time, in the order of three days a week. He did not see reduced hours per day as an option, preferring the notion of three full days. In cross-examination, he agreed that he was a very social person and that his work helped satisfy his social needs. Indeed that was where he had met his current female partner. I will return to aspects of the plaintiff's work at MyState when dealing with the claim for loss of earning capacity.

96 Before the accident, there was of course, the plaintiff's keen interest in soccer. He played at a high level of competition. He now maintains an interest but it seems restricted to watching English Premier League on television. He was interested in camping and going to the beach. He was always outdoors, hardly spending any time indoors at all. He said that he missed the outdoor life; he does his best to cope, "but it's difficult". He did however acknowledge that wheelchairs with large balloon tyres are available to enable access to sandy areas such as beaches, and to uneven terrain.

97 The plaintiff plays wheelchair tennis twice a week. He plays in an able-bodied pennant competition on Thursdays, and then practices with a tennis coach on the weekends. He has to play in an able-bodied competition because there are no longer any wheelchair tennis competitions as such in Tasmania. (The rules are modified for him in the able-bodied competition.) He travels to mainland Australia as many times as he can manage given his work commitments, to play in wheelchair tennis tournaments. These tournaments closely follow the able-bodied tournaments, so where there is a major tennis tournament, there is a parallel wheelchair tennis event. He has played in the Australian Open - three or four times - and the Victorian Open in Melbourne, in the Sydney International, and in competitions in parts of regional Australia. The parallel tournament situation exists elsewhere in the world; for instance, there are US Open and French Open wheelchair tournaments. He was the recipient of a State encouragement award for young sportspersons.

98 He enjoys the game a great deal. He says that he is a very competitive person and wheelchair tennis is his outlet; "that's all I'm getting". He wants to continue to compete as he loves doing it. He has played against men who have gone on to compete in the Paralympics, and that is obviously an ambition. Longevity in wheelchair tennis is better than in the able-bodied game. The major reason for that is that the wheelchair athletes are not exposed to the stress and strain on the knees. He gave an instance of the Australian No 1 player who was playing well into his thirties and his now nearly 40. His world ranking at the time of the trial was 243. He said that one can compete internationally as an individual, provided the resources are available, and he said that it was one of his dreams to play in Europe.

99 For a short time, the plaintiff also played wheelchair basketball. This led to his involvement in an organisation called The Glenorchy Youth Taskforce. He was contacted because of his sport involvement. The organisation's aim is to help under privileged and disadvantaged youth, designed to involve them in community-based activities and advance general skill levels. He was involved in this program from the end of 2006, but his work now prevents him from doing much, although he maintains contact. Gymnasium activities are something which he did in the past and has an interest in pursuing in the future. He went to the gym for a while, but had a bowel accident and became very self-conscious. At about the same time the benefits payable to him expired and he did not have the money to pay for it himself. He got enjoyment and benefit from it, but does not think it would be practicable to consider going to the gym on a regular basis whilst he is in full time work. If he were working part time, it is something that he thinks he would resume; "I did enjoy being there and I would think that hopefully it would have the added effect of increasing my fitness, but you know, I'm not sure, I'd hope so."

100 Going out with friends to hotels and restaurants is a regular event, although whether it is weekly or less frequently is not clear. Obviously there are some difficulties in going to some places more than others, depending upon access and facilities. The plaintiff said that he sometimes goes to the Casino and to a hotel at Glenorchy, he thinks he may have been to the Casino on weeknights. Sometimes he goes to social events with his old soccer club, although he does not have much involvement at all with his previous soccer friends.

101 As mentioned in the course of his evidence about sexual dysfunction which I have set out, the plaintiff had a long term girlfriend, the relationship with whom started in about mid-2004 and lasted for about 10 months. She was his first girlfriend and he ended the relationship, acknowledging that he "sort of pushed her away and wanted to see other people". Some time later, he met another girl who lived in Launceston. She came to Hobart and stayed with him for a few nights each week. This went on for about two months until he suffered bowel incontinence when they were in bed together. He said that she broke off the relationship the next day. As at the time of the trial, he had developed a relationship with a girl with whom he worked. They were good friends for a while and "decided to take that to the next level and things are going all right at the moment."

102 He has sought advice about what would be necessary in the future for him to father children. He saw an IVF specialist. There is a high degree of probability that his sperm count has dropped because of his injuries, but the IVF process would be available to him now or later. He said that he would be prepared to undergo the processes to ensure a pregnancy of his partner, were he to be in a relationship where both wanted to have children. He said that if this was the only option then that is what he would do. He confirmed in cross-examination that he held a real desire to enter into a loving and sharing relationship which might lead to a family.

103 At the time of coming home from Royal Talbot and within a short time afterwards, the plaintiff was taking baclofen for the leg muscle spasms, Senokot for constipation and an antidepressant. He was also required to take Macrodantin from time to time for recurring urinary tract infections, and oxybutynin in attempted mitigation of urinary incontinence. Presently, he takes the baclofen, the Macrodantin from time to time as the urinary tract infections persist, two paracetamol tablets a night, and the Senokot.

104 There was little controversy about the essential medical evidence. Cross-examination was more directed to eliciting information, than mounting a challenge. Except where otherwise apparent, I accept what follows. The first witness with whom I will deal is Associate Professor Douglas Brown. He is the Director of the Victorian Spinal Cord Service at Austin Health which includes the Austin Hospital and Royal Talbot. Professor Brown was the senior specialist in charge of the plaintiff's treatment at those two centres. His examination-in-chief consisted of twelve letters and reports ranging from October 2002 to June 2010, mostly to the plaintiff's solicitors. The bulk of what I see to be the relevant material comes from a letter of 18 December 2006, supplemented by two subsequent responses to particular inquiries. Professor Brown addressed a number of issues concerning the plaintiff's future medical condition and treatment, his present and immediate future needs for care, and the need for longer term and aged care.

105 Professor Brown's views as to future medical treatment are that the plaintiff requires optimum care, but even with optimum care, problems can develop. The most common of these are pressure sores, in which he includes burns, cuts, or other skin damage. Many of these can be treated early with minimum disruption, but if allowed to progress to become serious pressure sores, hospitalisation may be required. Healing of even a minor pressure sore area can take between two weeks and three months.

106 The damaged spinal cord often heals with a small fluid filled cyst at the area of nerve cell loss. In up to 2 per cent of patients the cyst may expand during their lifetime to cause further neurological damage. Surgical treatment is required in the form of drainage of the cyst. As to this spinal cyst, or "post-traumatic syrinx", Professor Brown explained that the problem occurs when the cyst expands up inside the spinal cord. The normal part of the cord will suffer damage and lose function. The higher the level of the original damage, the greater the implications this has. He disagreed that it would most commonly occur in the first five to ten years post-injury, saying it was completely unpredictable but that it involved a relatively small percentage of spinal cord injuries in any event.

107 The plaintiff's current method of bladder emptying is optimum, and he should suffer few urinary tract infections providing that his catheterisation technique is good. When the chance of infection in the bladder is reduced, the chance of infection ascending to the kidneys is also reduced. Nevertheless, the plaintiff is at risk of recurrent urinary tract infections beyond that experienced by the general population. With prompt treatment of these in an optimal fashion, it is unlikely that there will be long-term detrimental consequences. Generally, prompt treatment of any early problems with his bladder will minimise major complications in the future.

108 Bowel problems tend to become more common with the passage of time, and a number of patients develop severe bowel dysfunction after 10 years of spinal cord injury. Treatment for this level of dysfunction is the ileostomy. This is a very satisfactory treatment for chronic and severe bowel dysfunction, but there are some surgical risks. The incidence of patients with long-term spinal cord injury having an ileostomy is quite small - in the order of 1 - 2 per cent.

109 The risk of depression and other psychological sequelae is a very individualised matter. The plaintiff has not shown any particular tendency to this. Functioning in the community can be more difficult psychologically from a wheelchair base, where other members of the community do not know how to interact appropriately with someone who is different in an obvious way, and this can have a psychological impact. The plaintiff has proved he has the resilience to handle such situations. Generally, there is no evidence that the plaintiff is at particular risk in this area.

110 Because of the plaintiff's high level of paraplegia, he has significant problems with balance in the wheelchair, and therefore difficulties undertaking a number of tasks where control of body posture is important. Many domestic activities are difficult or impossible for someone of his level of injury from a wheelchair base. The upper arms, trunk, head and neck work extremely hard to undertake normal activities in a day. There is little or no reserve in upper body musculature for additional activity. He tires more readily than would be expected for the same task undertaken by someone who is able to spread the work amongst all of the muscles in the body.

111 Daily activities are very tiring, and unless the plaintiff has some assistance with domestic tasks, his ability to undertake study and employment will be affected by physical fatigue. This will become more apparent as he gets older, and by the time he reaches his mid-fifties, he may well benefit from additional attendant care to support him in his everyday activities. Quite commonly, patients at his level, who are between 50 and 60 years old, usually require additional assistance, particularly in the morning. He will experience additional wear and tear around his shoulder girdle, with possible degeneration of tendons around the shoulder joints and the early development of arthritis of the shoulders. The a real possibility of this degeneration of the tendons and joints due to overuse of the shoulders.

112 In Professor Brown's opinion, it could be said with some degree of confidence that spinal cord injury patients can expect to spend as much as two weeks per year, averaged over their remaining life, in hospital or bedridden for the treatment of complications of spinal cord injury involving a range of issues. Because the plaintiff is at risk of complications with urinary tract infections, he will need to see a general practitioner once or twice a year, and should be reviewed annually by someone with experience in the management of spinal cord injury patients. One particular area of potential problems is that related to his bowel care. This tends to become more prolonged and difficult with the passage of time. Generally, he will require annual reviews with particular blood tests, urine tests, ultrasound of his urinary tract, and plain X-ray of his urinary tract. As to his scoliosis, it is likely that it will remain fairly stable because of his age, provided he maintains good posture in the wheelchair. There is a possibility of damaging his urethra with self-catheterisation to the extent that he can no longer continue this method of bladder management. In that case a suprapubic catheter would most likely be the best option.

113 In cross-examination, Professor Brown said that skin care is an ongoing problem but not one that necessarily confronts paraplegic persons as they age. If care is exercised with the skin, it is unlikely that serious pressure sores will develop. The "sitting ones" are the ones that cause the biggest trouble and they are usually preventable by good cushioning, skin pressure relief and skin checks. He agreed that some preserved sensory function is useful to provide advance warning if it were a pain sensation. He also agreed that when individuals with spinal cord injury suffered shoulder pain, conservative management involved a review of mobility mechanics with a view to modification, but that annual reviews were desirable to look at functioning and mobility strength to avoid attempting to solve the problem at a later stage.

114 Professor Brown agreed that the average age when additional functional assistance was required for a paraplegic person was around 54. By functional assistance he referred to such things as slide board transfers to and from wheelchairs, powered wheelchairs, hoist transfers and similar systems. In terms of a percentage of patients who do not experience functioning difficulties as they get older, he would not agree with the figure being about 80 per cent. He thought it might be higher on the basis that the problems are not reported, as the patients may feel that they are doing well and simply attribute the difficulties to the aging process as such. The effect of his evidence is that it is important to continually monitor the situation and to make changes as and when required, in order to avoid more significant problems later on.

115 A number of succinct propositions were put to him. As to these, Professor Brown:

agreed that incomplete paraplegia and some pain sense remaining is helpful in preventing pressure sores;
said that although playing sport may not be so good from the point of view of shoulder function, being out and about and getting on with life "is an enormously positive contribution to independence, wellbeing, health generally and psychological wellbeing";
readily agreed that a paraplegic person sitting at home without interests would do less well than one out in the community working;
agreed that theoretically the higher one's intellectual capacity, the better chance of properly managing and warding off functioning problems in the future;
agreed that generally statistics show that persons in the lower socio-economic groups do worse than those who are better off;
readily agreed that the fact that the plaintiff had been in generally good health since his discharge from Royal Talbot would indicate that his future is better than if that had not been the case;
agreed that the plaintiff's low weight (55 kilograms) meant there was less pressure on his shoulders and generally on his upper limbs so that his outcome is likely to be better than if he were to put on weight, adding that there was also less weight on his bottom to cause pressure problems.

116 The witness was taken to his estimate of two weeks a year on average being spent in hospital or bedridden. He was asked whether that was not two weeks of each year, but rather "loaded up" towards the end of the person's life. He said that "if it was a pressure sore of course it'll be a longer term, but if you only had one pressure sore in ten years your average would be two weeks a year sort of ... It would tend to be later in life that - with those associated aging features ... that you get into troubles associated with a spinal cord injury". He said that his comments were confined to things relating to the spinal cord injury, and not other things which may affect the population generally, such as diabetes or dementia.

117 Dr Mark Slatyer, a consultant rehabilitation physician, also gave evidence. Dr Slatyer first reviewed the plaintiff in late August 2002, shortly after his return to Hobart from the Royal Talbot. He was involved in the plaintiff's treatment for about two years, and saw him for review in February 2008. Dr Slatyer said that it is likely the plaintiff will maintain his current functional level for most of the remainder of his life. However, some 20 per cent of patients can expect some kind of neurologic decline, included in the causes of which is the post-traumatic syrinx. Other possible problems include an injury to his shoulders such as a rotator cuff injury, or scoliosis. These scenarios could result in the deterioration of his present condition, making him functionally worse off.

118 Dr Slatyer noted that the plaintiff has a scoliosis (a spine curvature), but which had reduced as at March 2008. This needs monitoring with occupational therapy review of his seating. As to the post-traumatic syrinx, Dr Slatyer said there is a 5 per cent possibility of this following a traumatic injury. It can occur at any time from the time of the accident to as late as 20 to 30 years after the injury. He agreed that musculo-skeletal problems, such as premature arthritis, are a possibility. This is particularly so in the shoulders and elbows due to increased use in pushing the wheelchair, and in wheelchair transfers. He said that shoulder joint problems are a very common issue with paraplegics, and that in the plaintiff's case, there is a chance in order of 30 to 50 per cent that his shoulders will deteriorate over time. If that happens, the required level of attendant care "will be significant."

119 Sepsis is a potential hazard arising from not only pressure sores, but also urinary tract infections. Paraplegic patients can become very rapidly seriously ill and these infections must be treated aggressively when they are at an early symptomatic stage. Dr Slatyer also noted the existence of the plaintiff's scoliosis, but in a report in early March 2008 said that it had reduced at that time.

120 Dr Slatyer believed that the plaintiff was maximising positive outcomes by looking after himself particularly well. His full time employment has a most beneficial effect as, in general terms, that enables a spinal cord injury patient to be an engaged, productive member of society, and not focussed solely on the injury. The predominant physical issues to be faced by the plaintiff seem to particularly relate to a predisposition to early onset osteoarthritis in his shoulders and elbows due to increased demands on these joints, and the possibility of a rotator cuff injury which is very common in older and in more active spinal cord patients. Dr Slatyer said that any one of a number of occurrences as noted, could result in the plaintiff requiring a significantly increased amount of care. These situations usually occur in the aging spinal cord injury patient:

"I believe that over the next few years Joshua will have a period during which he has very few problems as long as he looks after himself, maintains his fitness, keeps his weight down and he's active and fully employed."

121 In Dr Slatyer's view, the plaintiff's short term prognosis is excellent, but his long term prognosis is affected by all of these issues. The possibility of his being less active and functionally less able than he is at present, is obvious because of those matters. Dr Slatyer agreed in cross-examination that it was generally true that someone who was intelligent and better able to address management issues, had a brighter outlook.

122 Dr Peter Sharman, a consultant occupational physician, also spoke of the prospects of shoulder degeneration or overuse complications resulting from wheelchair use. He described this as a "very significant risk", and reported that it would be reasonable to allow for difficulties with wheelchair transfers and use from between the ages of 50 and 55. Additional evidence about syringomyelia, the disorder of the development of a syrinx, came from Professor Peter Reilly, a consultant neurosurgeon. He reported that in general, the incidence of symptomatic syringomyelia is around 5 per cent of patients with spinal cord injury. He noted a Swiss study of 449 cases, the results of which were that nearly 5 per cent of paraplegic or tetraplegic patients developed symptoms of post-traumatic syringomyelia, with the mean time of onset of approximately five years. Looking at all of the evidence on these issues, I take the view that there is a high degree of probability of shoulder dysfunction in the plaintiff's early 50's, but a very low degree of likelihood of symptomatic syringomyelia, although it could possibly arise at any time.

123 As to the urological aspects of the injuries, the bulk of the evidence came from Dr Ian Middleton. In an early report Dr Middleton said that the plaintiff had a neurogenic bladder, which required self-catheterisation to empty. There were no demonstrable anatomical abnormalities apart from the paraplegia itself, the possibility therefore being that infections were predominantly being introduced by the catheter. The plaintiff needs to be assiduous with an aseptic technique on catheterisation, the need for which is likely to be permanent.

124 Dr Middleton noted the possibility of a permanent suprapubic catheter, as an option for patients who find self-catheterisation difficult or have ongoing problems with urinary sepsis. This catheter is one inserted into the bladder by an abdominal puncture, and needs to be changed monthly. Further, he said that patients with paraplegia and a neurogenic bladder are susceptible to stones, and in the long term have increased risk of kidney damage and even failure, which may occur secondary to the high bladder pressures that develop in the neurogenic bladder. "If carefully managed and appropriately catheterised, the risk of long term renal impairment is significantly decreased." He said that it is likely that the plaintiff will require long term and perhaps permanent antibiotic prophylaxis.

125 In a report in May 2006, Dr Middleton spoke of the plaintiff's problems with leaking urine and with erectile dysfunction. Subsequent diagnostic studies showed that the incontinence was stress incontinence due to sphincter muscle weakness, rather than urge-related. Dr Middleton later reported that if medication was not successful in controlling the problem, an artificial urinary sphincter (which I have previously described) could be considered. These sphincters last for about 10 years before requiring replacement, although Dr Middleton has at least one patient with the device which has been functioning satisfactorily for over 20 years. If both the sphincter and the penile prosthesis procedures were to be pursued, he would recommend that they be carried out six months apart, with the sphincter inserted first.

126 The life expectancy of the penile prosthesis is about the same as the sphincter. He said that over 20 years he had inserted about half a dozen penile prostheses, and over that period of time, the average replacement time was around 10 years. If one lasted 10 years, that was a good life expectancy. His experience was that men, including able bodied men, who had the prosthesis, replaced them until the day they died; on the other hand, he knew of men who did not use it frequently or at all, and if it failed it would not be replaced. "So the younger the patient, ... the more likely they are to want it replaced if it fails."

127 Dr Donald Moss, a consultant urologist from Ballarat, is the person who does these operations. In a report from 2007, he said that the plaintiff still had some forward ejaculation, but is likely to be infertile in the long term without artificial techniques. He said that because the plaintiff has limited general sensation, the penile prosthesis would not return him to totally normal sexual function, since he would still have incomplete sensory stimulation because of the anaesthesia over his genitalia, but it would enable him to obtain a satisfactory rigid erection for normal vaginal entry.

128 Neuropsychological assessments have been carried out by Dr Jennifer Nichols. These were done in January 2005, August 2006 and December 2006. The results of the 2005 testing are as follows. The plaintiff's verbal, perceptual, working memory and intellectual functioning fell in the high average to superior range and did not represent a deterioration from estimated pre-morbid levels of functioning. In contrast, his processing speed was in the average range, which fell below expected levels of functioning. His language ability was intact, with word finding fluency in the average range. This may represent a mild impairment of verbal fluency possibly due to processing speed deficits. Comprehension, listening skills and reading ability were intact.

129 In terms of memory functioning, the plaintiff was in the high average range for immediate memory. Compared to earlier post-accident testing done by others, there was a significant improvement in the visual immediate memory, with no longer any significant difference between visual immediate and auditory immediate performance. Working memory fell in the superior range. Overall, the plaintiff's memory performance fell between the low average and high average range which was consistent with previous post-accident testing. He continued to demonstrate deficits in processing speed and new verbal learning, compared to predicted pre-morbid levels of functioning. Executive functioning tests showed intact planning and organisation skills. The summary section of the relevant report contains the following:

"It is estimated that his pre-morbid intelligence fell in the high average/superior range. His current results suggest that he has not suffered from any impairment in his intellectual functioning as a result of the motor vehicle accident.

Mr Potts continues to show moderate impairment in information processing speed as compared to estimated pre-morbid abilities. This is also a consistent finding across previous assessments and has not shown any significant improvement. He also continues to show deficits compared to previous ability and new verbal learning. In contrast, there has been a marked improvement in Mr Potts' working memory ability. This suggests his ability to hold and manipulate information in his mind is now consistent with pre-morbid levels."

130 The 2006 testing showed little change of any real significance. The plaintiff continued to demonstrate deficits in processing speed and new verbal learning, compared to predictive pre-morbid levels. Dr Nichols' summary was that there was no evidence of any change in overall intellectual functioning; the plaintiff continued to show moderate impairment in information processing speed, and a reduced ability in new verbal learning. When cross-examined, Dr Nichols agreed that as to the pre-morbid state, she could not say where the "highs and lows" lay in relation to the various sub-categories of intelligence function. She agreed that the plaintiff told her that he had not applied himself at school, and that she had assumed that to be the case. However, testing showed some particular strengths and that "he had the ability but he may not have applied himself in those subjects because from his IQ he is showing that he had the ability."

131 Two of the defendant's medical reports tendered by the plaintiff were from Mr Martin Jackson, a consultant clinical psychologist. Both reports were prepared in 2003 and were based on the neuropsychological testing had been done after the accident and up until that point in time. Mr Jackson's findings at that time essentially mirrored those of Dr Nichols for the same period. On the basis of the then current neurological assessments, Mr Jackson concluded that the plaintiff was a man of estimated high average to superior pre-morbid intellectual abilities. His then current verbal and perceptual intellectual abilities were within the high average to superior range and were not impaired. However, his information processing speed was generally within the average range, indicating moderate impairment compared to his pre-morbid abilities. In summary Mr Jackson said:

"Overall, Mr Potts is a man of estimated high average to superior pre-morbid intellectual abilities who is demonstrating moderate impairment of information processing speed, moderate to moderately severe impairment of multiple task processing, moderate to moderately severe impairment of new learning and moderate slowness of verbal fluency. His impaired abilities are generally within the low average to average range, but are rated as being moderate to moderately severely impaired on the basis that his pre-morbid abilities were in the high average to superior range."

132 Mr Jackson said that the main issue in the plaintiff's case was his lack of insight into the nature and severity of his cognitive difficulties. He said that the plaintiff was not going to be able to learn at the same rate or with the same efficiency that he would have experienced during his year 12 at school. He is going to be much slower to take information in. He will need repetition of information and will need to be able to focus on smaller pieces of information at a time. Mr Jackson predicted that the plaintiff would struggle at university because of his slow processing and lack of efficiency with new learning.

133 A psychiatric assessment was carried out by Dr Philip Reid in September 2010. In a report Dr Reid said that the plaintiff presented "relatively well without evidence of a current episode of depression or an Adjustment Disorder". In his opinion, especially during the plaintiff's time at university, the severity of his distress may have reached the proportions of "Major Depression". Dr Reid said:

"This is not to suggest that the psychological impact of his injuries has not been profound. Certainly there has been understandable feelings of helplessness and despair when confronting the reality of his changed lifestyle. In general he has coped through denial and distraction. The greatest impact of improvement in his mental state came through participation in a youth program where he socialised and regained his confidence. From here he has gained work and feels more accepted. However his vulnerabilities remain in the form of his mild, cognitive impairment and the uncertainty of his yet to be realised goals of a relationship and independence from his family."

134 Dr Reid thought that the plaintiff had a reduced vocational capacity which came about through the acquired brain injury and associated cognitive changes. It was this injury which was more likely to be the cause of any lack of drive or ambition in his current occupation, rather than the psychological sequelae of the injury. He was of the view that for the plaintiff to achieve independence, it may come at the expense of working full time or being promoted.

135 As will have become apparent from my outline of the facts concerning the plaintiff's present disabilities, there is no real issue in this case as to the plaintiff's credibility. I accept both the plaintiff and Mrs Potts as truthful witnesses. Mr Read conceded that much in general terms, although qualified his position in relation to two particular matters which concern loss of earning capacity, and which more involve questions of what inferences are to be drawn, and questions of weight, than credibility as to the underlying facts.

136 Overall, it must be said that the plaintiff bears his grave injury and its daily consequences for him, with an admirable degree of fortitude. He spoke plainly of his difficulties without exaggeration or unnecessary embellishment. Some care needs to be exercised in making assessments of his current and future needs, not to act too readily on the plaintiff's own judgment and perceptions. Obviously, the task is to be significantly guided by his own evidence, but a degree of objectivity is required, guided by the relevant experts who have assessed his particular situation, and with a broad knowledge of the possibilities and probabilities for someone in his situation.

137 That brings me to the proper approach to the assessment of damages in relation to matters such as domestic, nursing and other attendant care, and items of equipment. It is particularly these heads of damage about which the major debate has occurred in this case. Some of the claims across the various heads of damage relate to past expenditure made not by the plaintiff, but by his parents. The defendant submits that these are not payable as the plaintiff has not incurred the expense, and is under no legal liability to repay the amounts. Mr Read relies on Blundell v Musgrave [1956] HCA 66; (1957) 96 CLR 73 as authority for that approach. The plaintiff relies on the concept of compensation for needs created by the injury, as articulated in Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161, and since confirmed in a number High Court cases.

138 It is now well established that the true conceptual basis of a claim for damages relating to pecuniary needs is that it is the need for items and services which is the loss, not the money required to fulfil the need. The cost of meeting the needs is the measure of the damages: Van Gervan v Fenton (1992) 175 CLR 327, Kars v Kars [1996] HCA 37; (1996) 187 CLR 354, Grincelis v House [2000] HCA 42; (2000) 201 CLR 321, CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 at [7]. As pointed out in the discussion at par4.3.1 of H Luntz, Assessment of Damages for Personal Injury and Death, 4th ed (2002), Blundell v Musgrave has not been expressly overruled, but Griffiths v Kerkemeyer has been recognised as a departure from the High Court's previous view expressed in Blundell: Kars v Kars (above) per Dawson J at 358, per Toohey, McHugh, Gummow and Kirby JJ at 368. Whilst there have been quite a few signs of discomfort at the consequences of this concept, it remains the law; see for example CSR v Eddy (above) Gleeson CJ, Gummow and Heydon JJ at [31], McHugh J at [100] - [102] and Grincelis v House (above) per Callinan J at [45] - [57].

139 The plaintiff can recover the reasonable cost for meeting a need created by the injury even though he has not incurred, and may not incur, any expense. However, the nature of the payments made and the relationship between the provider and a plaintiff, may be relevant as to whether the defendant is required to meet the expense or whether "the charitable subvention of the services should be debited against the plaintiff, so as to reduce or distinguish this otherwise established entitlement of the plaintiff to damages": Griffiths v Kerkemeyer per Stephen J at 175. As is explained at par4.3.3 of Luntz, (above), "Insofar as there is doubt as to whether the obligation to repay will be enforced one wishes to avoid double compensation to the plaintiff, the decision in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 provides a suitable means of making allowance for that contingency by reducing the damages according to the chance that the plaintiff will not have to repay".

140 That discussion evolves into the issue of the requirements to fulfil the injury-created needs. Expenses must be reasonably incurred, so the question in any particular instance is what is reasonably required, not what are not the ideal requirements. The approach is to assess what a person would do if he or she were spending their own money, yet had sufficient funds, and were well advised and reasonably careful about their own welfare. The benefit from the particular item of expenditure may have to be weighed against the cost: Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649 at 662; Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563 at 573.

141 This issue arises in this case in respect of many of the plaintiff's claims, particularly those relating to attendant care and special equipment. It also arises as part of a broader argument about what Mr Read described as "tennis-type claims". One quite large item of anticipated expenditure relates to the plaintiff's sport of wheelchair tennis, and his desire to travel, both in Australia and internationally, in order to compete. Given his established level of prowess, and what he has done to date, this is not an unrealistic scenario. The defendant's position is that many claimed items are not in respect of a need created by the injury, or alternatively the expenditure would be unreasonably incurred, or again as an alternative, the items of damage are too remote.

142 First, Mr Read submits that it is important to identify the level of abstraction at which the need is to be considered. "If the level is playing tennis then there is no evidence that this is needed by reason of the tort. If it is at the level put for the plaintiff - he chooses to play tennis and therefore he must have a specialised wheelchair then it can be seen there is a need. But a claimed based that way is a claim for loss of amenity. It sounds in general damages." The example was given of the plaintiff choosing to engage in round-the-world yachting, and the rhetorical question posed as to whether the defendant would have to pay for the cost of modifications to the yacht to make it suitable for a paraplegic, and for the cost of an accompanying carer. "Were it the case that the plaintiff was engaged in that pursuit before he was injured then the actual costs would be the basis of the claim but it would then have to survive the scrutiny of what is reasonable." Mr Read relied on a statement made in a completely different context by Owen J (with whom Rowland J agreed) in Stewart v Andri (1994) 19 MVR 1 at 12 that "the rationale for compensation lies in the loss to the injured part of the faculty, not its preservation in a different form".

143 As to the remoteness point, it was argued that the damage claimed must be of such a kind or genus that a reasonable person should have foreseen, and that considerations of remoteness may nonetheless mean that a defendant is not responsible for all losses even though of a kind or genus reasonably foreseeable in a general way. Mr Read submitted "It may be that it is foreseeable that a young man rendered a paraplegic might turn to some kind of sport or recreation that required an adaptive aid. But the measure of damages for that foreseeable consequence cannot be based on the actual cost (or possible future cost) in all cases, as that cost may be too remote." Mr Read set a geographical limit, confining the defendant's liability to the plaintiff's wheelchair tennis activities in Tasmania.

144 It seems to me that it is proper to approach the general issue on the basis that before the accident the plaintiff was a person who was keenly interested in, and regularly participated in, a physically competitive sport. That particular sport is no longer available to him, and he has taken up a substitute. I do not think that either taking up an alternative, or the nature of the alternative, are unreasonable. There is the additional aspect of mitigation of damage. The evidence of Professor Brown and Mrs Potts is that playing wheelchair tennis is beneficial for the plaintiff in both physical and mental terms.

145 In my view it follows that the defendant should be liable for the reasonable costs of the substitute sport. In the end, I do not understand Mr Read as taking issue with that; indeed, the cost of the sport wheelchair for tennis is conceded as not unreasonable. However, on whatever conceptual basis it is put, I would broadly agree with the defendant's submission that there would have to be some limitations on the extent of the defendant's liability. It is trite that injured plaintiffs should be awarded such sums as will restore them to the positions they would have been in had they not been injured. This has obvious limitations in terms of money being adequate compensation for physical impairment, but holds true in relation to the funding of needs created by the injuries. The fact that the plaintiff may be very successful in his substituted sport, and may wish to travel widely to pursue that sport, may be something for which the defendant should not be liable.

146 The last matter is the general issue of contingencies which was raised by Mr Hobbs in closing. He correctly observed that when considering contingencies, the Court must contemplate all things either to enhance or mitigate damages, according to what is considered appropriate: Ritchie v Victorian Railways Commissioner [1899] VicLawRp 130; (1899) 25 VLR 272 at 276; Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541 per Windeyer J at 543 - 544. In this case, it was submitted that in relation to a number of claims, the costs represented a reasonable quantification based on current presentation and predicted outcome on a best case scenario basis. It was submitted that there is a more than fanciful possibility that the plaintiff's condition could dramatically deteriorate to the extent of him becoming a quadriplegic, in which case, as Dr Slatyer observed, personal care and other costs "would be astronomically higher than they are now". It was submitted that I should make allowance for the potential adverse contingencies that may befall the plaintiff in the future in the event of a worst case scenario. In other words, when I look at what contingencies may operate to reduce a claim, I should generally bear in mind the possibility to which I have referred, and not overlook that as an ever present adverse contingency. I will endeavour to do this to the extent permitted by the evidence.

147 However, there is an overriding factor in this process. For many of the heads of damage which involve claims for life, the particulars have been calculated using a seven per cent multiplier which makes no allowance for mortality; (748). In these instances, I have not allowed for any discount for the contingency of early death. Of course, the plaintiff's injuries have shortened his life span, but that does not make him immune from normal causes of early death. I take the view that to a very large extent at least, that approach offsets the degree of likelihood of the catastrophic outcome spoken of in submissions.

148 I will now deal with the individual heads of damage, in the order, and with the subject headings as put forward by the plaintiff, except that I will deal with damages for pain and suffering and loss of amenities, after all of the others.

149 The items claimed and the respective amounts are as follows:

150 As to these items, I have had a little difficulty in following precisely what is in dispute, but it is at least clear that there is no argument at all about items 6, 9, 10 and 11. The defendant did not address item 12, but that may well have been an oversight. Starting then with the Wilson v McLeay damages [1961] HCA 56; (1961) 106 CLR 523, the claim represents Mrs Potts' loss of wages for most of the time she spent in Melbourne. Mrs Potts said she stayed because she was told that even patients who are in a coma who do not appear to be aware, do better when they have a loved one by their side. She said that in all the "down times" in which he was not doing therapy, she would sit with Joshua and help him pass the time or play games to help keep his mind active. She also learnt how to deal with his bowel problems. The plaintiff later told her that he was glad she had been with him. The hearsay assertion of Mrs Potts about the benefit of her being there was objected to, and the evidence was taken on the basis that it explained her reason for being there. No objection was raised to the evidence of the plaintiff's comment to his mother.

151 The defendant's submission is that the claim is not open because of the Common Law (Miscellaneous Actions) Act 1986, s5 - now repealed, but applicable to this action. The section provided that an award of damages relating to the personal injury of a person shall not include compensation for the value of services of a domestic nature, or services relating to nursing and attendance, which have been or are to be provided by another person to the injured person, and for which the person in whose favour the award is made has not paid or is not liable to pay. Mr Read did not refer to any authority on the point. Nor did Mr Hobbs for the plaintiff, in his short assertion that Wilson v McLeay damages "stand alone" with "a specific set of criteria", and to which damages, s5, did not apply.

152 This is surprising given that the issue was considered by Zeeman J in House v Forestry Tasmania Serial No B57/1994, [1995] Aust Torts Reports 81-331[2], and there is other Tasmanian authority bearing on the point. In House, the plaintiff claimed, pursuant to Wilson v McLeay, the loss of earnings of his wife for a period during which she cared for him at home, helping him shower, dress and undress. At 24 (62,271), after referring to the judgment of Stephen J in Griffiths v Kerkemeyer (above) at 171 - 175, Zeeman J said:

"The plaintiff's submission to the effect that s5 is directed only to an award of special damages and not to an award of general damages is devoid of merit. There is no basis upon which the plaintiff may recover the loss suffered by his wife. On common law principles he is limited to recovering the value of those services to him. Those services were rendered gratuitously. Section 5 prevents me from awarding any amount in respect of the value of those services."

153 Having regard to the gravity of the plaintiff's injuries, his age, the location of the hospitals, and the length and extent of his rehabilitation treatment, I am satisfied of the "need for such comfort and consolidation" that Mrs Potts, as mother, could provide: Hillier & Carney v Lucas [2000] SASC 331 per Lander J at [556]. That care is likely to have helped alleviate his medical condition. I do not think the time spent with the plaintiff was unreasonable. The claim is one for general damages, not for items of special damage. The question is whether what Mrs Potts did can be properly described as services relating to nursing or attendance within the meaning of the section, and so amount to gratuitous care caught by the prohibition. In Grimsey v Southern Regional Health Board [1997] TASSC 103; (1997) 7 Tas R 67, Wright J at 106 said that "relating to" is a phrase with a wide denotation, having been construed as including anything which can be regarded as having a material connection, correspondence or relationship to the thing in question. His Honour said: "It is therefore wide enough to cover any kind of 'attendance' upon an injured individual which arises from the injury sustained." This observation passed without comment in the defendant's appeal against some of the items which his Honour allowed: Southern Regional Health Board v Grimsey (1998) 8 Tas R 166 at 189 - 192.

154 Further, in Torrent v Lancaster [1991] Aust Tort Rep 81-089, Kennedy J (Rowland J agreeing) said, in the context of Wilson v McLeay, that in light of Griffiths v Kerkeymeyer, "There is much to be said now for assimilating the cost of the hospital visits to other gratuitous services provided for a plaintiff; ...". In my view, the application of what appears from these authorities compels the rejection of this claim. What Mrs Potts did amounted to services relating to attendance within the meaning of the section: see also Nicholson v Nicholson (1994) 35 NSWLR 308 at 323; Manning v State of NSW [2005] NSWSC 958 at [68] - [73].

155 I will next deal with items 2, 3, 4, 5, 7 and 13, being those other than for vehicle modifications and wheelchair replacement. These numbered items are expenses incurred by the plaintiff's parents, and are said to have been required to accommodate the plaintiff's injury-created needs. As such the claims are not ones for special damages, and fall within the principles which I earlier discussed. For those reasons, the defendant's submission that these claims are not payable because the expenditure is that of the plaintiff's parents is rejected. In each instance the issues are whether there was an injury created need for the item, and whether the expenditure is a reasonable measure of the fulfilment of that need.

156 The additional power costs arise from the increased need for heating for the plaintiff, caused by the difficulties which the cold creates for him. Additional and alternative heating was installed in the Lenah Valley home which was paid for by the MAIB. Mrs Potts gave unchallenged evidence that since that time, the household power costs had increased by about 50 per cent. Extra heating was installed in the Rosetta home which is the subject of claim number 10. Various accounts were tendered for the period 26 July 2002 to 18 August 2010. The claim is for $12,711, but this calculation is wrong. A 50 per cent reduction has been made for the period at Lenah Valley but not for the Rosetta period. On my calculations the claim ought to be $6,780. The continuing claim is not the monthly amount of $185 as claimed, but $92.70. The claim is made only to the date of judgment. I am satisfied of the need for this expense and that it is a reasonable amount. I allow $7,985.

157 The claim for additional telephone expenses was also explained by Mrs Potts. She said that initially there was more use of the phone in the house after Joshua came home from hospital, "but probably not so much now, ... - we were making a lot more doctors' appointments and organising, you know, for him to go to other places ...". The claim is for $233 based on Mrs Potts' estimate of "about twenty five dollars a year". Her evidence does not really permit a finding that the expense has occurred in the amount claimed each year, and the medical evidence would not suggest any significant expense over and above an ordinary household. I am prepared to allow $150.

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