Shayne Henderson v Darren McLean

District Court of NSW|2007-10-05

CITATION: Shayne Henderson v Darren McLean (Taree) [2007] NSWDC 199

DECISION: 1. Verdict and Judgment for the plaintiff against the Defendant in the amount of $148,825; 2. Order the 1st Defendant to pay the Plaintiff's costs of the proceedings against 1st Defendant, such costs to be agreed or assessed on the ordinary basis; 3. I direct that the exhibits be retained in the registry for six weeks; 4. I publish my reasons; 5. I grant a stay of enforcement of the Judgment up to and including 8/11/07.

LEGISLATION CITED: Civil Liability Act 2002 Motor Accidents Compensation Act 1999

PARTIES: Shayne Henderson (Plaintiff) Darren McLean (1st Defendant)

COUNSEL: R Letherbarrow SC with D M Wilson (Plaintiff) D Russell SC (1st Defendant)

1 The plaintiff in these proceedings, Shayne Henderson, was injured in a motor vehicle accident on 16 August 2002 and brings this claim for damages in negligence against the 1st defendant, Darren McLean. As the proceedings between the plaintiff and the 2nd Defendant, Daryl John Potts, were settled prior to commencement of the hearing, for convenience, I will refer in this judgment to Mr McLean as "the defendant".

2 The plaintiff was born on 18 February 1965 in Sydney and so he will shortly be 43 years of age. He lives in a rented property in Taree West with Sharon Taylor, the mother of his two sons who are aged 12 and 4 years respectively. The plaintiff and Ms Taylor both said that they had known each other for 20 years and had lived as man and wife on and off during that period. At the time the case was heard in Taree District Court in July 2007, they were not living as man and wife and the plaintiff was sleeping in a separate room.

3 The plaintiff was the ninth child of ten children. Unfortunately, the plaintiff got into trouble with the law at an early age. He was convicted of stealing when he was aged ten and was released on probation for 12 months. In 1977 the plaintiff was convicted of stealing again and committed to an institution. The following year, 1978, the plaintiff was convicted of a number of driving offences and given a two year good behaviour bond.

4 The plaintiff left school in 1980 aged 15 years. He obtained the School Certificate.

5 Over the next 20 years the plaintiff spent 8 years in prison. The most serious offence he committed was in 1987 when he was convicted of robbery. He served 4 years in gaol for this offence. Other offences that were committed included convictions for stealing, breaking and entering, mid-range PCA and other driving offences, indecent assault, escaping lawful custody, assault and behaving in an offensive manner. The plaintiff has not been in gaol since his release in 1990.

6 Unsurprisingly, the amount of time spent in gaol and the difficulties the plaintiff has had with the law have affected the plaintiff's employment. Between leaving school and the date of the accident, the plaintiff hardly worked. Although he obtained a forklift licence, it appears he has never put it to use. The plaintiff said that the bit of work that he had done included labouring and fruit picking. He learned to paint when he was in gaol and has sold a few oil paintings. Although he had a promising career as an amateur boxer, the plaintiff did not earn any money from boxing. The plaintiff also did some road work for Bailby Roadways in Queensland when he was living in Queensland. He lived in Queensland for about 8 years.

7 The plaintiff did not produce any tax returns or group certificates in relation to his earnings. He said that he was living in Taree for a bit over 3 years before the accident and during that time was unemployed. He said he did not work for at least 4 years before the accident because he was addressing his drug addiction.

8 Bearing in mind that 22 years had passed after the plaintiff left school, up to the date of the accident, the plaintiff was asked, leaving aside time spent in gaol, approximately how many of the those years he had worked if the part-time jobs he had done were added together. His answer was "probably 2 years" (T10.48).

9 The plaintiff said he became involved in drugs at an early age and he had a heroin problem for many years. He said he was taking that drug on and off until the year 2000. Between then and the accident the plaintiff was on a methadone program, but he also dabbled in other drugs, including marijuana. Before the accident he was taking MS Contin, a strong painkiller.

10 At the time of the accident the plaintiff was living part time in a unit he was renting in Wynter Street Taree. He spent the rest of the time with Ms Taylor in her two bedroom home unit at Chatham. His older son had been born and Ms Taylor was pregnant with the younger one. The plaintiff was not working but said he did a bit of gardening at the back of the unit. Ms Taylor was working part time as a cleaner in a motel. They shared the shopping.

11 At the time of the accident the plaintiff was receiving sickness benefits due to his drug problems. When asked whether he might have looked for any form of work once his second son would be born, he said "I think so". The answer was given on the basis that he wanted to secure a home for the children and a better outlook on life compared with what his own experience had been (T 14.50). The plaintiff said he had a good relationship with his sons and Ms Taylor confirmed this when she gave evidence.

12 In the afternoon of 15 August 2002, the day before the accident, the plaintiff went in Ms Taylor's car to the house of James Tisdell. Mr Tisdell was an acquaintance of the plaintiff who lived in a rural property at Glenthorne Road, Taree, about two miles from the plaintiff's unit. Mr Tisdell's house was a farmhouse. When he arrived at the property, Mr Tisdell was not there. The plaintiff had gone there to collect $50 which he had lent Mr Tisdell earlier that day. Mr Tisdell had promised he would repay the plaintiff later that day.

13 The plaintiff said it was still light when he arrived at Mr Tisdell's property. He got bored waiting for Mr Tisdell and to pass away the time, he went for a walk and ended up on the next door neighbour's farm. He started to collect cow manure to use as fertilizer in his garden. The plaintiff said the neighbour came out and was not impressed by the fact that the plaintiff was on his property. Once he explained why he was there, the plaintiff said the man gave him a plastic bag so he could put the manure in and they had a conversation.

14 The plaintiff said that after he had the conversation with Mr Tisdell's neighbour, he walked down the paddock and started crossing a creek. It was deeper than he realised and very soon he was up to his neck, but he managed to get himself to the other side of the creek where he got out soaking wet. By then it was dark. He was not sure where he was and because he had been up to his neck in the creek he did not want to go back across it, so he walked along the creek bank where he had emerged. The plaintiff kept walking. It got darker. Eventually, the plaintiff ended up in swamp land and became lost. As things transpired, the plaintiff was lost for nearly 10 hours before he was involved in the accident.

15 The plaintiff said he had not taken any drugs on 15 August 2002. He had taken his methadone first thing in the morning. He was not sure what affect it had on him. Typically, however, the methadone made him feel content.

16 The plaintiff said that when he realised he was lost he just kept wandering to see if he could find a way out. It was pitch black, he was tired and soaking wet. He felt "buggered" and completely disorientated.

17 I interpolate here that John Thomas Erby, the owner of the land where the plaintiff had been collecting cow manure, gave evidence that he was a taxi proprietor who lived on a one-acre block in Glenthorne Road Taree. He spoke to the plaintiff very briefly to ask him what he was doing on his property and was told something about the plaintiff collecting cow manure. He may have given the plaintiff a plastic bag for this purpose, or the plaintiff may have had one on him, he could not recall precisely.

18 After the plaintiff told Mr Erby that he was collecting cow manure, the conversation ended. Mr Erby then observed the plaintiff going across the paddocks behind his property in the direction of a creek. He then lost sight of the plaintiff. He said that there was swamp all behind the creek and that was an area where a person could easily become lost at night time.

19 After wandering around lost for many hours, the plaintiff eventually heard the sound of traffic, so he headed towards the noise. He came across the highway, that is, the Pacific Highway, near Taree. The plaintiff did not recognise the highway at first, but realised shortly afterwards that he was on a side of the highway, somewhere between Cundletown, about 7-8 kilometres north of Taree, and Purfleet, several kilometres south of Taree. From Purfleet, the Old Bar Road crosses over the highway as an overpass. In this respect the vicinity of the accident can be seen in the report of Mr Johnston (exhibit B) at p 10 figure 3.1.

20 The plaintiff said that the highway was a divided road. Where he was standing, there were two lanes heading north. The plaintiff tried to flag down two vehicles, but they passed him by. So the plaintiff crossed to the middle of the road. The middle of the road consisted of an area of grass and bushes of small height. The plaintiff from there observed the two south bound lanes. He remembered that it was raining, but could not recall what clothes he had on, although he said he had on white runners. I interpolate here that Ms Taylor's evidence, which I accept, was that after the plaintiff was discharged from hospital she was given some of his clothing, which he said he had on at the accident (T 118.44) and that it included a short sleeved, silky white shirt.

21 After giving evidence about being in the bushy area dividing the highway, the plaintiff said that the next thing he remembered was being half way across the road, feeling a big thud on his left shoulder and then flying forward. The plaintiff vaguely remembered that he woke up face down on the road.

22 When asked at what angle he was crossing the road, the plaintiff said he was going straight across. He did not remember seeing any vehicles before being hit. He said his memory was poor. He vaguely remembered an ambulance, but his next clear memory was waking up in John Hunter Hospital in Newcastle.

23 The plaintiff's version of what occurred prior to the accident remained the same when he was cross-examined. He added that when he was on the farm adjoining Mr Tisdell's place that he took some oranges off that neighbour's tree and that he spent about 20 minutes collecting cow manure. He said that the neighbour, when he spoke to him, was not impressed about him being on the neighbour's land and this was understandable. However, the neighbour gave him the plastic bag to fill with oranges. He spent about 15-20 minutes on that property before walking down to the creek at the bottom of the paddock.

24 The plaintiff said he was not under the influence of drugs at the time and the observations Mr Erby made of him did not suggest otherwise. The plaintiff had taken his methadone and this had made him feel content. He said he was thinking straight and after he fell into the stream and got to the other side, he did not want to go back the same way, which is why he kept walking along the embankment. The result was that he got lost and it was pitch black. For the next 9-10 hours the plaintiff said he was walking through swamp, thick bush and across paddocks. He was completely lost. When he arrived at the side of the highway, all he knew was that he was somewhere between Cundletown and Purfleet. He was sure that he stayed on the side of the road when he tried to hitch a ride with the two vehicles that went past him. He said that because there were too few cars coming he made a decision to cross to the other side of the highway. He agreed that the weather conditions were poor. It was pitch black and raining, with poor visibility.

25 The plaintiff said that when he reached the middle of the road he slipped on the grassy section. There was no steel Armco fence in the middle of the road.

26 The plaintiff agreed he had filled out a claim form, exhibit 2, in which he had made the following statement: "In pouring rain I crossed the highway. As I walked through the middle of the highway it was very wet and slippery. Also poor visibility. I remember slipping on the wet grass as the gully went up and onto the road. Half way across the road I remember a big thud from behind."

27 The plaintiff said he was walking across the south bound section of the highway at normal pace. He said he did not see the defendant's truck before it hit him, by which time he had got across the right hand lane (heading south) and had gotten somewhat into the left hand lane (T 76.4). Before the collision he had not seen any other vehicles, although he claimed to have looked before attempting to cross the highway. When pressed, he admitted that if the defendant's truck had been on the road, he would have been able to see it and he could not offer any explanation as to why he had not seen it. He had not seen any lights on the truck either. He agreed it would have only taken about three seconds after he emerged from the trees to cross the highway at normal pace to the point where he was hit.

28 Denny Matkovic gave evidence that he is a carpenter, but in 2002, he was driving a semi-trailer for Woolworths Limited. He had been doing that for about two and a half to three years.

29 At about 4.30-5.00am in the morning of 16 August 2002 Mr Matkovic was driving his semi-trailer heading south. Mr Matkovic described the rain as "just a drizzle" (T 100.40). It was not a heavy downpour or anything like it.

30 Mr Matkovic was travelling at about 100 kilometres per hour with his headlights on low beam because the defendant's vehicle was in front of him, about 300 metres away. He could clearly see the defendant's vehicle.

31 Mr Matkovic had a CB radio in his semi-trailer and although he had it on at the time, it was turned down because there was chatter and Mr Matkovic wanted to listen to music. He had the standard radio on and was listening to it when picked up someone saying on the CB radio "shit, I think I've hit something". Mr Matkovic described the way in which this had been said as "quite loud and sort of disturbed" (T 101.53) and this was obviously the reason why Mr Matkovic heard it.

32 Mr Matkovic said he went onto the CB radio and asked then which direction the person who had spoken was headed. When told "south bound", Mr Matkovic slowed down immediately. He saw the plaintiff lying on the far right-hand lane with his head on the separation line between the two lanes. Mr Matkovic then pulled his vehicle over and stopped about 100 feet away from where the plaintiff was lying on the road. The defendant's semi-trailer was already parked on the same side. Mr Matkovic pulled his semi over in front of the defendant's. Before getting out of his vehicle he radioed to let other drivers know that there was a body on the roadway and they should stay in the left hand lane.

33 When Mr Matkovic got out of his vehicle it was drizzling and he observed the plaintiff wearing sandshoes or thongs, shorts and a t-shirt. He could not remember the colour of the plaintiff's clothes.

34 When asked about the visibility whilst he was driving before the accident, he said it was not too bad and he had no difficulty seeing the defendant's vehicle when it was 300 metres ahead of him. Mr Matkovic said he did not see the defendant's vehicle swerve or brake before the accident.

35 Mr Matkovic said that the first time he was asked to recall what he had heard over the CB radio was some years after the accident when a lawyer spoke to him. He was sure he recalled the words used over the CB radio were "shit, I think I've hit something".

36 The defendant, Darren William McLean, gave evidence that his present occupation is that of an underground miner, but at the time of the accident he was employed as a transport driver by Trevor Turvey Transport, for which company he had worked for about a year. He had had a couple of years experience as a truck driver before that.

37 At 2pm on the day before the accident, 15 August 2002, the defendant had left Brisbane in his Sterling prime mover, towing a 14 metre fully laden trailer headed for Sydney. The whole vehicle weighed around 40 tonne including the load.

38 At 5am on the morning of 16 August 2002 the defendant said he was driving on the Pacific Highway in a southerly direction near Taree in weather conditions which he described as "dark and misty rain" (T 136.25). He had his wipers on and was travelling in the left hand lane. He could not recall what the speed limit was, but said he would have been doing it "whatever it may have been" (T 136.53). He said his vehicle was limited by a governor to 100 kilometres per hour. He had the semi's lights on but he could not recall if they were on high or low beam.

39 As he was driving along, the defendant said he saw something about 4 seconds before he hit it (T 137.21). He was not good at distances, but gave an approximation in Court, which the parties agreed, was "around 40 metres" (T 137.46). That is to say, the object was about 40 metres from the defendant when he first observed it. He said that prompted him to back his vehicle off, that is to say, move it over to the left and brake.

40 The defendant said when he first saw this object it was in his lane to the extent of 2 feet to the left of the separation line between the two lanes. He did not recognise the object when he first saw it. It was only when he got closer that he realised it was a man and this was just before he collided with the plaintiff. The defendant said that the plaintiff had moved between 5-6 metres between the time the defendant first observed him and when the collision occurred.

41 When the defendant realised it was a person he said he panicked. He was already braking and moving over and he tried to get out of the plaintiff's road but could not. He said at the point when he realised that the object was a man moving ahead of him, he observed the plaintiff was walking away and he could see his back (T 139.16). In other words, the plaintiff was walking in the same direction as the defendant was driving the semi-trailer. The defendant said "… he just seemed to keep veering, like he was just wobbling across. He's not going straight across the road, walking straightish, but heading further into my lane" (T 139.34).

42 The defendant said that immediately prior to the collision he had pulled across as far as he could and the plaintiff disappeared under the front right hand side of the vehicle and he heard a thump, so the defendant knew there had been a collision. He kept braking and as he was pulling up he grabbed the CB radio and said "I've just hit someone, look out" (T 140.33), because he was aware there was another vehicle following behind him. When asked again what he said, the evidence was (T 140.39): "Q. So you said "I've just hit someone, look out"? A. Well, yes. Be aware slow down."

His Honour: Q. Sorry, what did you say? As best as you can recall, what did you say to him? A. It was something on the lines, I would have - I can't remember his name, it would have been a nickname, it was just someone I knew of from work and we happen to be travelling together that night, so I would have called him by his nickname and said 'I've just hit a man", you know, but be aware, slow, you know, look out, there's someone going to be laying (sic) on the road."

43 The defendant said he stopped his vehicle on the side of the road. There was room to park it on the fog line. He put the flashers on, got out of the semi and ran back to the accident scene where the plaintiff was lying on the ground. Another person had pulled up in a utility and was attending to the plaintiff.

44 The defendant said he spoke to the police at the scene and they took his statement. He could not remember if he had signed it.

45 In cross-examination the defendant identified his semi-trailer as being very similar to the one in Mr Johnston's report at page 19 (exhibit B). He said that the vehicle had extra driving lights fitted to it on the bull bar. There were two of them and generally speaking they were better than the manufacturer's high beam lights.

46 The defendant said he did not know where the plaintiff, when he merely observed him as an object, had come from. I am satisfied he most likely saw the plaintiff because the plaintiff had a white shirt on. However, the defendant said he thought at the time it might have been a kangaroo and he did not see it before it was in his lane. He was unsure as to whether or not he had his high beam lights on at the time. He agreed that there was no other vehicle in front of him at the time.

47 The defendant agreed that, where the collision occurred, the road was effectively straight. If there was a bend before the point of collision it was only a very minor one. He also agreed that it was not pouring, it was just raining.

48 The defendant said that the collision came as a great shock to him. He did not remember word for word what he said on the CB radio. He agreed that he may have said "Shit, I think I've hit something". He agreed that the object when he first saw it was not going straight across the road, but walking at an angle and if it kept going at the angle he observed, it would have taken 50 or 60 metres to get off the road.

49 The defendant denied telling the police that he had called out on the CB radio that there was someone on the road before he struck them. He said the policeman had got it wrong and it was ridiculous for him to have noted that.

50 In terms of the clothes the plaintiff was wearing, the defendant's recollection was vague, although he remembered a blue raincoat or parka. He had runners on as well.

51 The original of the police notebook was not available, but the contents of it had been transcribed by the plaintiff's solicitor in the company of the police officer who created the document. Apart from a minor error which is of no consequence, I am satisfied, from the evidence given by the plaintiff's solicitor, that he accurately transcribed the material contained in the police notebook. The transcribed version (exhibit G) contained a statement by the defendant as follows: "I was travelling south in the nearside lane at about 100kph. It was raining quite heavily and it was dark. There was no-one in front of me. I came around a right-hand bend. I travelled a short distance and realised that there was someone in the middle of the road. I slowed down and called on the CB that there was someone on the road. I moved over to the left and the man walked into the front offside of my truck. I pulled over where I could. I ran back down the road to render assistance. There was another truck behind me and he pulled up as well. His name was Danny, driving for Symons Transport - 0408 971 084."

52 The material in exhibit G is consistent with the summary in the COPS report, exhibit J.

53 Daryl Potts, the 2nd Defendant, gave evidence that he was a road maintenance supervisor who, in August 2002, was a road maintenance patrolman employed by Thiess Pty Limited. He drove a utility vehicle and left home to go to work at 5am on the day. It was raining and dark and he used his wipers on the trip with his headlights on. He was travelling between 90-95 kilometres per hour in the vicinity of the accident where the speed limit was 110 kph.

54 Mr Potts said that he had just overtaken a semi-trailer in the left lane when ahead of him he saw a person lying on the road and some hazard lights in the distance. He immediately reduced speed to around 80 kph. He observed the plaintiff's head was in the left-hand lane and his feet were protruding into the right-hand lane. He was only about 20 metres away when he saw the plaintiff on the ground and swerved to the right to avoid the plaintiff, but ran over his legs. He then reversed his vehicle back to where the plaintiff was on the roadway, called 000 and turned on his hazard lights. He observed the plaintiff wearing a spray jacket, shorts and a shirt. He was not sure what colour the spray jacket was and could not remember the colour of the plaintiff's shirt.

55 Mr Potts had a good recollection of the vegetation in the middle of the road. It was very low at the time, no more than three foot high, if that. The highway at that point had not long been opened and the bushes had only just been planted.

56 Senior counsel for the defendant submitted that the defendant was not negligent and that the injuries suffered by the plaintiff in the accident were entirely due to his own fault. The plaintiff put himself in a position of danger, failed to look to the left before crossing the road, did not observe the defendant's lights on and heard no noise of the semi-trailer approaching. On the other hand, counsel submitted that the defendant's oral evidence was credible, that it ought be accepted and if it was, there was no basis for finding that the defendant was negligent because, through no fault of his own, it was not possible for him to avoid the collision.

57 The defendant relied on what was contained in paragraph 5.25 of Mr Johnston's report (exhibit B), so that, at 100 kph the defendant would have travelled at a ground speed of 28 metres per second. If the Court accepted the defendant's evidence that, from when he first saw the "object" until when he hit it he was only 4 seconds away, this meant that the defendant was approximately 112 metres away from the plaintiff when he first saw him. Accepting what Mr Johnston said in paragraph 5.34 of exhibit B, this would mean that the defendant was unable to stop in time to avoid a collision because Mr Johnston said that it would take 148 metres to bring a semi-trailer to a stop, applying heavy braking. In that respect, it was not possible to brake heavily because of the conditions and the possibility of the semi-trailer jack-knifing. It was submitted the defendant did all that was possible in the circumstances because, if his evidence was accepted, he had veered to the left and braked as best as he could and in doing so nearly avoided the plaintiff. The defendant was placed with an agony of the moment decision and acted correctly at the time. Moreover, in the area in question it was not unreasonable for the defendant to be travelling at 100kpm in the dark when it was raining because it could not reasonably be expected that there would be persons on the roadway. The defendant's actions were those of a reasonable man.

58 The defendant conceded he was not much good at estimating distances and accordingly, I do not accept his evidence that the plaintiff was only 40 metres away from him when he first saw the plaintiff in the form of an "object". In terms of the time estimate given by the defendant, namely 4 seconds, my assessment of the defendant while he was giving evidence was that he was defensive and anxious to avoid culpability. Whilst, perhaps, the latter is understandable, nevertheless, in my assessment of the defendant, this state of mind infected his evidence and I do not accept that his estimate of the period of time which elapsed between first seeing the plaintiff and the time of collision, namely, 4 seconds, was accurate.

59 In addition, by the time the defendant gave evidence, 5 years had elapsed since the accident occurred. Having regard to this and what I have said already about the defendant's oral testimony, I prefer the evidence given by the defendant in the statement he made at the scene of the accident to the police officer, compared with his oral testimony to the Court denying the content of the statement. At the time he made the statement to the police things were fresh in his mind.

60 Mr Potts said that approaching the accident scene from the north, the roadway veered to the right "and then there's a short straight and then it veers to the left" (T 163.42). In this respect the defendant said in his statement that he came around that right-hand bend. He travelled a short distance and realised that there was someone in the road. That caused him to slow down and make a call on the CB radio to alert others to the fact that there was a person present on the road. He then moved over to the left and the plaintiff walked into his truck.

61 Senior counsel for the defendant submitted that, in effect, what was contained in the statement made to the police was not inconsistent with the defendant's oral testimony. The police officer must have recorded events in the wrong order, particularly the reference to the call being made on the CB radio. Counsel submitted this must be so because Mr Matkovic heard the defendant saying on the CB radio that he must have hit something. Mr Matkovic's evidence, which I accept, does not mean that the defendant did not call before the accident on the CB radio that there was someone on the road before the accident occurred. Mr Matkovic said he had his CB radio turned down and was listening to music. Obviously, Mr Matkovic's attention was drawn to the CB radio comment because of the exclamatory way in which the defendant made the statement that he thought he had hit something. In other words, Mr Matkovic simply missed hearing the first statement made by the defendant over the CB radio warning others that there was something on the road.

62 Based on the defendant's statement to the police officer that he slowed the vehicle down and called on the CB that there was someone on the road, I am satisfied that the time that elapsed between when he first saw the plaintiff and the point of collision must have been, as a matter of commonsense, much more than 4 seconds and looking at it the other way, I am satisfied he was more than 112 metres away from the plaintiff. More likely than not, the defendant was at least 8 seconds or 224 metres away from the plaintiff when he first saw him. Clearly, on the basis of the estimates given by Mr Johnston, which the defendant did not cavil with in paragraph 5.34 of exhibit B, the defendant could have pulled his vehicle up completely or slowed it down sufficiently to move to the left-hand side of the road to avoid the plaintiff. In this respect I accept Mr Matkovic's evidence that he did not observe the defendant braking or swerving to avoid a collision. Taking account of Mr Johnston's evidence about the width of the roadway in the area of the collision, I am satisfied that the defendant had at least two feet to move to his left to avoid hitting the plaintiff altogether.

63 In the circumstances I am satisfied that the plaintiff has established the defendant's breach of duty of care in that the defendant failed to take evasive action to avoid the collision with the plaintiff after he had first observed him. The defendant failed to brake his vehicle to bring it to a stop or, at the very least, to slow it down and move to the left to avoid a collision, which I am satisfied he could have done in the circumstances.

64 The defendant has pleaded contributory negligence. This is to be determined in accordance with the Civil Liability Act 2002: ss 3B (2)(a), 5R and 5S. Counsel for the plaintiff concede that there should be a significant reduction on account of their client's contributory negligence. The concession was that a finding in the order of 60% contributory negligence might be considered appropriate by the Court. Senior counsel for the defendant submitted that a finding of contributory negligence in the order of 75%-80% was appropriate if the Court found the defendant guilty of negligence.

65 The plaintiff was a pedestrian who put himself at risk and he was not able to explain to the Court how it was that he was veering across the Pacific Highway between Cundletown and Purfleet at 5am in the morning, from west to east at an angle without (obviously) hearing the defendant's semi-trailer or seeing it. The plaintiff was extremely foolhardy in all the circumstances taking the risk that he did which significantly contributed to the accident occurring. I therefore find the plaintiff guilty of contributory negligence to the extent of 70%.

66 The assessment of the plaintiff's damages must be made in accordance with the provisions of the Motor Accidents Compensation Act 1999.

67 The defendant conceded the plaintiff was entitled to damages for non-economic loss and contended an appropriate award was $250,000. On the other hand, the plaintiff contended that an award of $275,000 was appropriate.

68 It is common ground between all the medical experts that the plaintiff suffered a brachial plexus injury to his left arm resulting in complete paralysis of this limb. He also injured his knee, broke ribs and had a collapsed lung. In this respect the plaintiff was in hospital for six weeks after the accident and he had a number of operations. When he returned home from hospital the plaintiff was bedridden for the first six months. His left arm began to reduce in size during that period and he has not been able to use it (see the photographs in exhibit F). He has constant pain in the left arm all the way up to his shoulder. It is of a burning and stabbing nature and the plaintiff takes a lot of painkillers to reduce the pain, but it is never completely eliminated. The result is that the plaintiff is restricted in the things that he can do. For example, he is restricted in playing and interacting with his children and he has problems dressing and showering. The plaintiff also has problems with his neck and chest. He feels depressed a lot of the time and comes across this way in the witness box. The plaintiff has burnt himself on the stove on a number of occasions due to not being able to use both hands and arms whilst cooking. He has suffered from infections in the arm and has had several hospital admissions to have it drained. The plaintiff does not want to have his arm amputated. The appearance of his hand looks bad as well, with the four fingers and the thumb clawed over and gripped together.

69 Taking all of the matters referred to above into account, as well as the material contained in the medical reports about the plaintiff's level of complaints and disabilities, the pain he has suffered and the restrictions on his range of activities and loss of the amenities of life, I consider the appropriate amount to award the plaintiff for damages for non-economic loss is the amount of $270,000. This will be included in his damages.

70 In terms of past out of pocket expenses, these have been agreed in the amount of $11,944.

71 In terms of future out of pocket expenses, the Court was asked to approach the matter on the basis that the plaintiff was born on 18 February 1965 and that both parties had worked off a life expectancy of 85 years (multiplier 938.2).

72 Based on the evidence given to the Court, in terms of future expenses, I am satisfied it is appropriate to allow $15 per week for medication and consultations with medical practitioners. Rounded off, this amounts to $14,000 and this amount will be included in the plaintiff's damages.

73 In terms of past and future economic loss, counsel for both parties approached the matter on the basis that the plaintiff should be awarded a small cushion. Counsel for the plaintiff submitted that, if an allowance of $100 per week for the past five years and future years was allowed for diminished earning capacity, that a cushion of $75,000 in round figures should be awarded. Counsel for the defendant submitted that the appropriate cushion to be awarded would be nil for the past and $25,000 for the future.

74 The plaintiff will shortly turn 43 years of age. He has hardly worked during his lifetime. Since he came out of gaol in 1990 it seems he may have done a little bit of work as a road worker whilst living in Queensland with Ms Taylor. As recorded earlier in this judgment, the plaintiff himself estimated that all up he has only worked 2 years since leaving school many years ago. He also had not worked at all for at least 4 years before the accident occurred.

75 The evidence therefore establishes that the plaintiff has an appalling track record in terms of his employment. It is extremely doubtful, therefore, if the accident had not occurred, that the plaintiff would have done much work at all. Nevertheless, both counsel are correct in identifying the fact that the plaintiff has suffered a severe diminishment in his earning capacity, in respect of which some compensation ought be allowed because, based on his prior work history and lack of training, it is hard to see what job the plaintiff would be capable of performing.

76 The Court is required to approach the matter in accordance with the provisions of s 126 of the Motor Accidents Compensation Act 1999. Having regard to the matters I have set out, but allowing for the fact that the plaintiff has not been in gaol for 17 years, he has not had heroin for at least five years and assuming a retirement age of 65 years, I assess the plaintiff's prospects of working full time during his remaining 22 years of working life as no more than 15%. I have therefore assumed the plaintiff would work in total for about 3½ years during this time.

77 It is common knowledge that average weekly earnings for males at the present time are about $1,200 per week gross or $880 per week net. I do not think it likely that the plaintiff would earn this much if employed at the present time. I consider an appropriate figure would be $600 net per week. Approaching the matter on the basis of the assumptions set out above, namely that the plaintiff would only have worked for 3½ years out of the next 22 years, I arrive at a round figure of $67,000 ($600 x 703.8 x 3.5 22). From this, 15% should be deducted for the usual vicissitudes. This results in a figure which I award for future economic loss in the amount of $57,000 (round figures).

78 In terms of past economic loss, approximately five years have elapsed since the date of the accident. Bearing in mind the plaintiff's evidence that he was still coming to grips with his heroin addiction at the time, (he has been off the methadone programme since just after the accident) it is reasonable to assume that the plaintiff would only have worked for about 10% of the time during this period. Allowing a figure of $400 net per week on average for that five year period, in round figures, I arrive at $10,400 ($400 x 52 x 5 x 10%) for past economic loss.

79 In terms of the plaintiff's claim for attendant care services, the Court's determination has to be made pursuant to s 128 of the Motor Accidents Compensation Act 1999.

80 Senior counsel for the defendant submitted that during the period whilst the plaintiff was recovering as best he could from his injuries, that an allowance of $21,840 ought be made ($20 x 14 hours x 78 weeks). Thereafter, he submitted the plaintiff had failed to establish that services had been provided in the past and will be provided in the future for 6 hours per week or more and for 6 months or more. Therefore, the plaintiff's claim did not get over the threshold in s 128. To support this submission, counsel said that an allowance of $5,282 ought be made for occupational therapy equipment equipment (as per the Arnold Report as part of exhibit 1). I do not propose to approach the matter this way and make that allowance because I am not satisfied that the plaintiff would acquire and use the equipment. His evidence demonstrated a lack of motivation in this respect. The question for determination therefore is, first, whether the plaintiff has established that attendant care services have been provided in the past for a period longer than the defendant conceded and secondly, whether he has established that they will be provided in the future and, if so, whether he crosses the statutory threshold.

81 Counsel for the plaintiff submitted that an award for past attendant care services should be made on the basis of 28 hours per week since the accident and, in respect of the future, for 14 hours per week for the remainder of the plaintiff's life.

82 At the outset I reject the plaintiff's claim that there should be an allowance based on a commercial rate because the plaintiff made it quite clear that he would not employ anyone to provide the services. He said he would rather keep the money than get someone in (T 35.25).

83 The plaintiff's evidence was that after he was discharged from hospital and went home that Sharon did everything for him and still did. She did more at the beginning than at the present.

84 At the present time, the plaintiff relies entirely on Sharon for two whole days every fortnight because he has generally run out of the painkiller MS Contin by then, because he takes a little bit too much of it and the doctor is strict in terms of giving him a fresh script.

85 The plaintiff said that when he is on the painkiller he tries to mow the lawn once a month and he occasionally drives the car to the supermarket. Sometimes he sweeps the floor. Essentially, though, Sharon and the kids do the housework.

86 The plaintiff no longer gets Sharon to help him have a shower because it gets her down. He described the situation as "She's living my life. You know, I stay at home all the time, I don't go anywhere, I don't do anything" (T33.45).

87 Sharon ties the plaintiff's shoelaces and does all the shopping for the household, including the plaintiff. Sharon does nearly all the cooking and the washing up. Sharon also does the washing of the clothes.

88 The plaintiff said that if Sharon left him he would not be able to look after himself (T 35.20).

89 The plaintiff said that prior to the accident he did as much as house cleaning as Sharon.

90 The plaintiff said that things were very hard for him now in terms of household chores. He could not peel potatoes, carrots or other vegetables and he could not open canned foods.

91 The plaintiff said he does as much as he can for himself because he and Sharon have had problems in their relationship.

92 The plaintiff only occasionally assists with the shopping now, whereas he used to share it with Sharon.

93 The plaintiff said he does his best to get his own breakfast. He has to get his lunch because he does not want to cause problems with Sharon. He is afraid she will get angry with him for not doing anything around the house. He said there was one stage where Sharon was going to leave him and he was potentially facing the prospect of having to look after himself without assistance (T 88.15).

94 The plaintiff only helps cook the evening meal once a week or once a fortnight and is not up to doing it more frequently because of the pain he is in and the depression he feels. Sharon cuts up his food for him. She also drives him into town when he needs to go there. Sharon also takes the plaintiff to see his general practitioner at Wingham. His evidence was at T 87.46: "Without Sharon I'd be buggered. I'd be a mess. I wouldn't be able to survive, I know I wouldn't. She goes to the shop for me, she does - she does get you know, sick of it, of course she does. She does my washing. She does cooking. She cleans. We have two kids that make a mess every day. By the next day it's clean and by that night or the next morning, it's back to the same."

95 Sharon Taylor gave evidence that she had been in a relationship with the plaintiff on and off for 20 years and at the time of the hearing it was "an off situation" (T 116.31) and they were living in separate bedrooms in Ms Taylor's house at 28 Gleeson Street Taree.

96 Ms Taylor said that prior to the accident the plaintiff was at her house most of the time. When he was in his unit in Wynter Street Taree she used to visit him there occasionally.

97 Before the accident, Ms Taylor was living in a two-bedroom unit at Chatham with their two sons and the plaintiff visited her nearly every day and assisted with housework, including sweeping the floor and washing up.

98 Ms Taylor said that after the plaintiff was discharged from hospital he came to her home and she helped him shower, dress and undress. She prepared his meals, helped him walk, did up his shoelaces, buttons and zippers. This went on for about two years and she spent two to three hours per day doing these things.

99 Ms Taylor said that the plaintiff has adjusted in terms of mobility and can walk without a stick. He has learned to live with one arm, but she said she still assists him doing up buttons, preparing all the meals, doing up his shoelaces, helping him put his shirt on and off, making his bed, and so on. She said that this took up about an hour and a half each day. It did not include the shopping and she practically did all of the shopping without much assistance from the plaintiff.

100 Ms Taylor's assessment was that it took up to 18 months for the plaintiff to adjust to living with one arm after he came home from hospital. Certainly during that period the assistance she gave him was more than at the present time. He then started to do a few more things for himself.

101 In my opinion the defendant correctly conceded that an allowance for past gratuitous assistance in the amount of $21,840 ($20 x 14 hours x 78 weeks) should be allowed for the period of 18 months after the plaintiff was first discharged from hospital. I reject the defendant's submission that no allowance ought be made after that date. Taking the evidence of the plaintiff and Ms Taylor together, which I accept, I am satisfied that since then, Ms Taylor has provided the plaintiff with attendant care services, on average, for at least one hour per day. Whilst it is quite possible that the period of time has been more than this on a daily basis, nevertheless, the plaintiff bears the onus. In this respect the Court is not satisfied on the balance of probabilities that the services provided were more than one hour per day because the estimates that the plaintiff and Ms Taylor gave varied and were vague in some respects.

102 Accordingly, for the period of 3½ years to date, I allow $25,500 ($20 x 7 hours x 182 weeks).

103 I am satisfied that the current position will pertain in the future, but, bearing in mind that the plaintiff and Ms Taylor are not married, that their relationship is and has been rocky and they were not living together as man and wife at the time of trial, an allowance of 35% for vicissitudes should be made to take account of the possibility Ms Taylor will stop providing gratuitous attendant care services. Thus, I arrive at a round figure of $85,400 ($20 x 7 hours per week x 938.2 x 65%) for future attendant care services.

104 In summary therefore, the damages awarded to the plaintiff are $496,084 as follows: Non-Economic Loss - $270,000

105 After deducting 70% for the plaintiff's contributory negligence, the result is a Verdict and Judgment for the plaintiff in the amount of $148,825.

106 Costs should follow the event on the ordinary basis, but I will hear the parties if they wish to make submissions to the contrary.

107 I direct that the exhibits be retained in the registry for six weeks.

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

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Judgment (115 paragraphs)

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