Tarres v Rozelle Carriers Pty Ltd

Mr Tarres' work history with Hobbs Bros 8Mr Tarres was employed by Elysium No. 20 Pty Ltd, a company of which he was the sole director and shareholder. That company had a contract with Hobbs Bros for Mr Tarres to provide his services as a truck driver, operating from the trucking yard of Hobbs Bros located at Ingleburn. 9Mr Tarres was a very experienced truck driver. He started his own courier business in 1985, which ran for a few years. He slowly built up a transport business and moved from lighter vehicles into heavier vehicles. By about 1990, he had become involved in driving larger and heavier vehicles both within the State of New South Wales and interstate, including road trains and large fuel trucks. 10As well as driving heavy vehicles, Mr Tarres worked in various managerial positions for different trucking companies over the years. 11Mr Tarres, or the company through which he operated, Elysium, ceased to own trucks in about 2003. After that time his services as a driver were contracted to various organisations. He only provided labour to those organisations. 12In about August 2006, he commenced to drive for Hobbs Bros. He was required to arrive at the Ingleburn depot by about 6am each morning and would then drive a vehicle nominated by a Mr Scott Lovatt, or one of the senior employees at Hobbs Bros, and undertake the transport tasks that were allocated to him. Mr Lovatt was the Transport Manager for Hobbs Bros. If Mr Lovatt was not present, then Mr Les Smith, an allocator, would distribute the work tasks. 13From about September 2006, the vehicle that Mr Tarres primarily drove was a 1993 Ford Louisville 9000 Prime Mover, registered number STG 581. That was the vehicle that he was driving on the day of his accident. 14It is sufficient for present purposes to note that Mr Tarres was familiar with the vehicle and had driven it on many occasions prior to the accident in question. Some aspects of his driving history with the Ford Louisville will be discussed later in this judgment. 15In general terms, the work undertaken by Mr Tarres involved him moving trailers, both loaded and unloaded, from one location to another. Typically the trailers, when loaded, carried shipping containers. These containers were themselves either full or partially full of cargo, or else empty. 16It is a matter of common sense, and must have been obvious to Mr Tarres, that depending upon the nature of the trailer and its configuration, the size of the shipping container and the weight of the cargo inside the shipping container, that the external configuration, namely height and width of the trailer and any container loaded on it, would change from container to container, and journey to journey. Whether that change would be significant or noticeable would depend upon all of the particular features of the trailer, the container and its load. 17The instructions given by Hobbs Bros to Mr Tarres generally included the pick-up location, if that was different to the Ingleburn depot, and the delivery location. It was a matter for Mr Tarres, as an experienced driver, to select the roads along which he drove and to choose the route by which he travelled between locations.

The circumstances surrounding the collision 18On 17 January 2007, Mr Tarres commenced his day at the Ingleburn depot of Hobbs Bros at about 5.30am. After undertaking some earlier jobs, he drove to Patrick's Terminal at Port Botany. There a shipping container full of cargo was placed on the prime mover's trailer. He left Patrick's Terminal at about 11.25am to transport the shipping container and cargo to the premises of a company, called New Directions, which was located at 47 Carrington Road, Marrickville. 19Mr Tarres chose the route he was to travel from Patrick's Terminal at Port Botany to New Directions at Marrickville. 20That route was via Sydenham Station. He turned south into Victoria Road, which connects directly into Myrtle Road and then Carrington Road. At about the point along the continuum of Victoria Road and Myrtle Street, where the names of the roads change, the road passes underneath two parallel railway bridges. 21The northern bridge, being that closest to Marrickville Road, was the first bridge under which Mr Tarres passed as he drove from Port Botany to New Directions. The southern-most bridge, being that closest to New Directions, and in the direction of the Cooks River, was the second one he passed under. 22A survey of both bridges was admitted as Exhibit F. It was not in dispute, although the survey was not carried out until 2009, that it accurately represented the position and configuration of the railway bridges in January 2007. 23Since the accident happened as Mr Tarres drove in a northerly direction towards Marrickville, it will be convenient to note the relevant measurements for traffic travelling in that direction. The first bridge to be approached is the southern bridge. The survey shows that as one approaches the southern bridge, heading in a northerly direction, the minimum height from the underside of the bridge to the road surface is 4.38m. This is in the centre of the carriageway at about the location of the painted white line on the road. As one travels under the southern bridge to the exit side of it, that minimum height is slightly reduced to 4.33m. 24In other words, in order to travel safely in a northerly direction, under the southern bridge, the total vehicular height, namely from the road surface to the top of the shipping container, needed to be less than 4.33m. 25The clearance height for the northern bridge was somewhat less for traffic travelling in the northerly direction. Again, the minimum height clearance occurs at about the white line separating the two lanes of traffic. On the entry side of the northern bridge, the minimum clearance is 4.23m and on the exit side, that minimum clearance is reduced to 4.12m. 26Again, in other words, in order for the trailer and shipping container to pass safely under the northern bridge, the height of the shipping container loaded on the trailer, when measured from the road surface had to be less than 4.12m. 27For traffic travelling in a southerly direction, as Mr Tarres was on his way to New Directions with a loaded shipping container, the minimum height for both bridges, in about the middle of the road, was 4.43m. It can be seen that for traffic travelling south that the clearance is greater than for traffic travelling north. 28It is necessary to resume the narrative of what occurred. As Mr Tarres travelled in a southerly direction from Port Botany to New Directions, he approached the first (or northern) bridge. On that bridge there was a sign that said in a very obvious way "LOW CLEARANCE 4.0 m". The sign was accompanied by panels of vertical black and white stripes that clearly indicated the need for caution. 29Photographs (Exhibit E) also show that for traffic travelling north, as one approaches the southern of the two bridges, there is a like warning sign. 30By reference to the measurements of the survey detailed in [25] above, it can be seen that the sign warned road users that the clearance was less than it in fact was. No doubt this was appropriate in order to allow, albeit by a small distance, a margin for error. 31Each of these signs conveyed to the public in general, and to Mr Tarres in particular, that unless, in his case, the top of the shipping container was less than 4m from the road surface, it could not safely pass under the bridge, and that there would be likely to be a collision between the shipping container and the bridge superstructure. 32The precise dimensions of the prime mover and trailer upon which the shipping container was loaded, which Mr Tarres was driving, have not been proved in evidence. The shipping container was full of cargo. Mr Tarres described the cargo as consisting of cardboard boxes, the dimensions and weight of which were not clearly described, although Mr Tarres estimated that the difference in weight between the vehicle being loaded with the cargo and without the cargo was about two tonnes (T37.8; Exhibit A [39]). 33On his way to New Directions, as Mr Tarres arrived at the northern bridge, he noticed the "Low Clearance" warning sign. He slowed down considerably to ensure safe passage under the bridge. He received assistance from a motorist travelling in the opposite direction and passed safely under the bridge. 34As a consequence of this safe passage, Mr Tarres was entitled to conclude that the maximum height of the loaded container on the trailer was less than 4m. He did not know, and made no attempt to establish, what the clearance margin was. 35Having arrived at the New Directions site at about 11.40am, the shipping container was unloaded. This took some time, as Mr Tarres did not leave New Directions until about 2.40pm. The shipping container remained on the trailer, but the cargo of cardboard boxes was removed. 36After the shipping container was unloaded and before leaving the yard at New Directions, Mr Tarres did not check the height of the top of the container (T46.46) although he knew, as he left the yard, it was his intention to return along the same route which he had followed to arrive at the New Directions yard. 37Mr Tarres failed to measure the height of his vehicle and container before leaving New Directions. He could have, but did not, ask someone at the New Directions yard for a tape measure so that he could measure the height of his vehicle before he left the yard. He said that he had never thought about such matters. 38The ultimate destination of the trip after leaving New Directions is unclear. It was either Port Botany or Hobbs Bros' yard. It did not matter to Mr Tarres' route selection process, because in the assessment of Mr Tarres either destination meant that he would retrace the route along Myrtle Street and Victoria Road, passing underneath the railway bridges. Due to the accident, he did not make it to his ultimate destination. 39Mr Tarres could have taken a different route from the New Directions yard so as to avoid travelling underneath the railway bridges, but again, he said that he did not think about any change to his route. 40On his journey, after leaving new Directions at about 2.40pm, Mr Tarres travelled back along Carrington Road, into Myrtle Road and came to the railway bridges. He said that he again noticed the sign indicating a low clearance with a maximum height of 4m, which was on the side of the southern bridge facing him. His evidence was that he again slowed down to ensure that he could pass under the bridges safely. 41Mr Tarres stopped very close to, or just before, the first (that is, the southern) of the two bridges. His intention was to gain assistance from anybody travelling in a southerly direction as to whether he would be able to travel underneath the bridges with appropriate clearance. 42Whilst stopped there, an oncoming motorist stopped at the northern-most side of the northern bridge, in other words what would have been the final exit point for Mr Tarres and his truck from both bridges. Mr Tarres indicated to that motorist by pointing with his finger to the top of the container and the bridge. He also looked upwards at the time. He did this in order to seek to assistance from the oncoming motorist. 43The oncoming motorist signalled with his hand that Mr Tarres could drive towards him, which he did very cautiously. He put his truck in a very low gear, second gear, and moved forward. 44He said, initially in cross-examination, that he stayed in second gear the whole way under the bridge until he came into contact with the bridge. I accept that this is what actually happened. 45Mr Tarres successfully negotiated the first or southern-most bridge. He then passed through the relatively short gap between the bridges and commenced to travel under the second bridge. As he did so, the top of his container collided with the superstructure of the bridge. 46Mr Tarres estimated that he had travelled between 20m and 30m from the point where he had been stationary before the entry point under the southern bridge, to the point of collision. 47An issue arose between the parties as to what speed Mr Tarres was travelling when the collision occurred. There was a good deal of evidence about this, which it will be necessary to analyse in due course, and upon which it will be necessary to reach a conclusion. 48In cross-examination, Mr Tarres was pressed to give an estimate of his speed at the time he was passing under the bridge. This exchange took place: "Q. So you would have been doing walking pace, say, or something less? What was the position? A. It's very hard to judge what actual speed you are doing. You might think you are doing walking pace, but you might be doing, oh, 10 clicks. A walking pace is about 3 clicks, so it's very difficult. Q. You are, or you were, a professional driver, so you had a reasonable idea? A. Reasonable idea. Q. To the best of your estimation, were you doing a walking pace? A. Probably a little bit more. Somewhere around about that, yeah. It's very difficult. Q. Well, you were concerned about what was above you, weren't you? A. Yeah. I was concerned enough not to be doing anything but I wouldn't have been going too fast that I couldn't have stopped or stopped something from happening." (T52.37-T53.3) 49As he started to pass under the second bridge, the motorist gave Mr Tarres the "thumbs up" and waved him through. At that point, Mr Tarres commenced accelerating and continued to pass under the second (northern) bridge. As he was doing so, at some point that was not identified in the evidence, but under the bridge, the forward edge of the container came into contact with the bridge superstructure and his truck came to a halt. 50Mr Tarres said in cross-examination that the stop was sudden and it was accompanied by a bang which he heard. In his statement he described the truck coming to " an abrupt halt ". 51Immediately after the top of the container struck the bridge superstructure, according to Mr Tarres' evidence, the prime mover bounced up and down on its suspension. As that occurred he felt his head hit the roof of the cabin, which caused him pain. In his statement, Exhibit A at paragraph 41, he said: "I was still proceeding slowing when I believe the front corner of the container struck the railway bridge forcing the truck to come to an abrupt halt. This has caused my body to be thrust vertically upwards in the cabin of the truck causing me to strike my head on the roof of the cabin." 52In cross-examination, he gave this evidence: "Q. And was it on the up bounce that you felt your head strike something. A. Oh, I can't remember that, I can't remember details like that... Q. Well, tell me what you felt when the container hit the bridge. A. All I felt was hitting my head on the roof and then excruciating pain. Q. But you don't know whether that was when the prime mover bounced upwards? A. All I can remember is banging my head on the roof and it's just like, that's all I can remember, mate. ... Q. You said that the prime mover bounced? A. Well, that's what it felt like. I felt one big bounce and then me getting thrown up and hitting my head on the roof. ... Q. That's alright. But then you felt the prime mover rise upwards and you hit your head on the roof? A. All I remember is hitting my head on the roof. It was just like a bang. It was just like a big bounce and I just remember my head hitting the roof and then all these pins and needles like I was getting cut with razor blades. That's all I remember." (T58.48-59.33) 53He said that he was positive that his head hit the roof and not something else. 54According to his evidence, Mr Tarres estimated that there was a distance between the top of his head and the roof of the cabin of eight to ten inches. 55Mr Tarres was subjected to extensive cross-examination on the issue of what it was that his head struck. He indicated in Court that the crown of his head, the top of his head, had struck something hard. He was firmly of the view that he struck the roof of the cabin and did not strike the overhead console immediately above the windscreen at the forward section of the roofline. 56In the course of cross-examination he agreed that he was "...pretty sure that [his body] would have moved forward because my back wasn't touching [the seat]. I was on an angle. ..." (T61.24) 57He adhered to his evidence firmly that his head hit the roof and not the overhead console. 58Although the plaintiff was in pain and had a number of symptoms from his injury, he was able to remove the truck from under the bridge. He did that by turning the steering wheel to the right and driving the truck out. 59An ambulance attended and recommended to Mr Tarres that he go to hospital. After a period of rest, he decided to drive the truck back to the Ingleburn yard. When he arrived back at the yard, he complained of pain and was then driven by Mr Mark Robson, one of the principals of Hobbs Bros, to Campbelltown Hospital. 60It will be necessary in due course to give an account of the injuries and consequences of injuries that Mr Tarres sustained. 61However, for present purposes, it is appropriate to note the following contemporaneous accounts which relate to his injuries. The report of the ambulance service officers who attended at the scene of the collision recorded this (I have inserted common expressions used in such notes in lieu of the abbreviations contained in the actual document): "Patient self extricated from truck which struck overhead railway bridge. Patient complained of central cervical neck pain with tingling in hands. Nil loss of consciousness. On examination: glascow coma scale 15, pulse regular, normotensive, well perfused, nil shortness of breath, nil chest/abdomen pain, nil headache, pupils equal and reactive to light, limbs intact. Nil motor or neurological deficit. Patient states had initial loss of movement in hands, now self relieved. Patient still with tingling in arms and cervical neck pain. Patient refused treatment against advice. Ambulance officers outlined to patient he may have a serious neck injury and requires transport and treatment. Patient refused transport and treatment stating 'too inconvenient, has to organise truck and family. Will visit LMO later'. Patient advice card given. Unable to convince patient to be transported." (Ex M) 62After attending Campbelltown Hospital, he was apparently referred to Liverpool Hospital, where he remained for some time and was discharged home. Although the ambulance officer's report is the first contemporaneous note of the extent of the injuries suffered by Mr Tarres, there are further notes available from both Campbelltown Hospital and, somewhat later, Liverpool Hospital. 63It will be necessary to examine the question of liability in detail. However, some factual conclusions about the events leading up to and including the accident can be drawn at this point: (a)The truck which Mr Tarres was driving clearly exceeded 4.12m in height and was less than 4.23m in height. This means that its height exceeded the minimum clearance of 4m which was obvious to, and seen by, Mr Tarres on the sign as he approached the entry side of the southern bridge; (b)Mr Tarres knew that the configuration of the truck and trailer with the container on it was very close to the minimum clearance. That was obvious from the fact that he took great care when travelling to the New Directions yard in a southerly direction, and also from the fact that he brought his vehicle to a halt and sought assistance from an oncoming motorist to pass under the bridges in a northerly direction; (c)The vehicle was loaded when he travelled under the bridges on the first occasion heading south to New Directions and had been unloaded by removal of the cargo from inside the shipping container before he started to travel north; (d)Mr Tarres did not take any steps to satisfy himself by use of a tape measure or other personal visual observation that there would be, or that there was, adequate clearance between the top of the container and the railway bridge; (e)Mr Tarres relied solely upon an indication from a motorist travelling in a motor vehicle, coming in the opposite direction, to satisfy himself that it was safe to drive the Ford Louisville and trailer under the bridge; (f)The vehicle collided with that part of the superstructure of the northern of the two bridges, where the clearance was between 4.12m and 4.23m in height.

Speed 64The speed of the vehicle was a matter that was the subject of dispute. I have earlier referred to some of the evidence that the plaintiff gave. Initially, the impression which I gained from his evidence was that the truck was travelling in second gear at about 3km/h to 5km/h, but perhaps as much as, but no greater than, 10km/h, as it travelled under the northern bridge immediately before the point of collision. However, it seemed in cross-examination, that the plaintiff sought to qualify this evidence by suggesting that once he had been given the all clear sign under the second bridge, he was accelerating and had reached about 15km/h at the time of the impact. 65On 24 February 2007, the plaintiff attended at the Hills Police Station where he made a report of the accident. According to the police report (Exhibit G), the following relevant details were recorded: (a)the accident happened at about 2.30pm on 17 January 2007; (b)one vehicle was involved in the accident which was a Ford Louisville 9000 articulated vehicle, registration number STG 581, which sustained damage to its 'roof'. (This was the code allocated by police which I took in this case to mean the top of the container); (c)the pre-crash speed of the motor vehicle was 5km/h; (d)the crash summary details were: "On 17th January 2007 about 2.30PM the driver drove M/V STG-581 along Myrtle St Marrickville and during which the driver has collided with the lower part of a railway bridge causing minor damage to the top of the damage [sic]. The vehicle itself was not damaged only the container on top of the truck." 66In cross-examination of Mr Tarres, it was suggested that the following account was contained in a police officers notebook and that it was the account which Mr Tarres had given to the police when he reported the matter on 24 February 2007: "I was travelling along Myrtle Street, Marrickville at about 5 to 10 kilometres an hour when I was driving under railway bridges near the intersection of Carrington Road. The top of my container on the back of my truck clipped the bottom of the railway bridge. I was surprised at this because I had already driven through under the bridge earlier without incident." (T65.60 - T66.40) 67Mr Tarres did not dispute that he had given this account to the police officers. The account is generally consistent with the police report and generally consistent with the evidence that Mr Tarres initially gave. 68There are two other pieces of evidence that suggest that Mr Tarres may have been travelling at a somewhat faster speed. 69According to the clinical record of the Emergency Department of the Campbelltown Hospital (Exhibit J), the following history of the accident is recorded: "MVA, low speed, 15kph, truck hit the bridge, got stuck, sudden flexion and extension neck and head hit the roof of the truck. No LOC ..." 70As the plaintiff was not accompanied by any workmate into the Emergency Department, the probabilities are that the plaintiff was himself the source of the history. However, precisely what he said to Dr Kwok, which Dr Kwok then interpreted and wrote into the records, is unclear. The plaintiff himself gave no evidence about what he had said. 71Whilst the note is a contemporaneous one, it has a degree of ambiguity about it, which means I can place little weight upon it as a completely accurate estimate of speed given by Mr Tarres. 72Was Dr Kwok told, for example, that the speed was exactly 15km/h or no more than 15km/h or about 15km/h, from any of which descriptions he then wrote simply 15km/h. Alternatively, was Dr Kwok told that the accident was a low speed one, and he asked for an estimate of the speed, and was given a "best estimate". Alternatively, again having been told that the accident was a low speed one, did Dr Kwok infer that the speed was about 15km/h? These possibilities were not resolved by the absence of evidence from Mr Tarres. The existence of these possibilities combines to make the note unreliable as a basis for a firm factual finding that the truck was travelling at 15km/h, at least without regard to all of the other evidence. With the exception of the evidence to which I next refer, there was no other like evidence. 73The only other evidence was that which the plaintiff gave during the course of cross-examination, when he said that he thought that because of acceleration of the truck once he had been given the "all clear", he had reached about 15km/h at the time of impact. 74His initial evidence on this topic was that at T52.37-T53.3, which I have set at above in [48]. 75He was later taken back to the subject and asked further questions. He said this (T63.32-T64.36): "Q. When you hit the bridge is it fair to say you were not travelling fast at all? A. Relatively I wasn't travelling fast. Q. You were, by any measure, travelling very slowly, weren't you ... A: Slowly relative to the speed limit, yes. Q. Mr Tarres, you weren't contemplating going within 50 kilometres an hour of the speed limit, were you? A. Of course not. Q. Of course you were travelling slowly relative to the speed limit? A. Yeah. Q. That doesn't tell us anything about the pace you were travelling? A. Probably 15 clicks. Q. 15 kilometres an hour? A. Probably. Q. That's five times walking pace, is that what you say you were doing? A. If that is walking pace, I guess. Q. Why would you be going to go to 15 kilometres an hour? A. It doesn't take much to get a truck to go 15 kilometres an hour. Q. A truck in second gear accelerates fairly slowly, doesn't it? A. 15 clicks is fairly slow. Q. You had no need to go under that bridge at 15 kilometres an hour, did you? A. I had no need. Q. And, indeed, you were exercising caution, weren't you, as you were going under the bridge? A. Yes. Q. At 15 kilometres an hour is not exercising caution, is it? A. If you have been given the clearance to go it is. Q. So you thought it was wise to accelerate to 15 kilometres an hour solely on the basis you say you got the okay from a person sitting in a car? A. He got me that far, why would he lie halfway through it. Q. Why would you speed up? A. It is not speeding up as such. That's normal driving. Q. Normal driving when you are worried about the clearance, or lack of it, that you have got above your trailer? A. After you have been given the clearance, yeah." 76Earlier in his evidence, as I have recorded in [ 48 ] above, the plaintiff had acknowledged the difficulty of placing an estimate on the speed he was doing, but said that it was probably a little bit more than walking pace, that is, three kilometres an hour. 77I regard this estimate of 15km/h, which he gives in the evidence that I have extracted in [75] above, as unreliable and I do not accept it. The reasons for this are: (a)it is inconsistent with his earlier sworn evidence; (b)it is inconsistent with the account he gave to the NSW Police of the accident; (c)the manner in which he gave this evidence, and the terms of the answers which he gave, left me with the impression that he was engaging initially in speculation about the speed at which he was travelling, and then when pressed to justify the speculation, resorted to arguing with the questioner, and seeking to answer in a way which advanced what he perceived to be in his best interests; (d)the physical locations and the factual circumstances to which I next draw attention, tell against the accuracy of this estimate. 78There are a number of physical facts and circumstances about the scene of the collision that tell against the plaintiff's suggested estimate of speed of 15km/h, and all combine to persuade me that this was a low speed, that is, 5km/h to 10km/h impact. These include: (a)the width of the bridge; (b)the truck was in second gear; (c)the plaintiff accepted that he was moving slowly so as to ensure that he travelled safely under the bridge; (d)the collision occurred within a few metres of where his acceleration commenced; and (e)the container did not become severely wedged under the bridge, but rather was able to be extricated by turning the steering wheel to the right and driving the vehicle forward. 79I therefore conclude that the plaintiff's initial report to the police and his initial account in evidence, is more likely to be accurate than his later account of 15km/h. Whilst there is necessarily some imprecision in the plaintiff's estimates of speed, having regard to the evidence and the factors to which I have just referred, I am satisfied that the collision occurred whilst the truck was travelling between 5km/h and 10km/h, and no more. 80Expert evidence was given on a range of matters surrounding the occurrence of the accident, and what happened in a dynamic sense in the course of the accident. None of the experts expressed any view about the speed at which the vehicle was travelling. Rather, their views were constructed upon one or more assumptions as to the speed. In order to understand the effect of the experts' evidence, it is important to draw a firm conclusion about speed. 81To summarise, for the reasons that I have earlier indicated, I am satisfied that the speed was between 5km/h and 10km/h at the time of impact between the shipping container and the superstructure of the bridge.

Damage to prime mover, trailer and container 82The extent of damage to the prime mover, trailer and shipping container, if any, was one relevant factor for the experts to consider in expressing their opinions about the operation of the seatbelt. It may also have been helpful in determining the speed at which the vehicle was travelling when the collision occurred. 83There was no evidence that in the collision the prime mover was in any way damaged. There was no evidence that the trailer, nor any component part of it, or other fittings that formed a part of it, were in any way damaged. 84The only evidence of damage to any component part of the vehicle as a consequence of the collision with the railway bridge, was to the shipping container being carried on the back of the trailer. 85Exhibit K, a repair estimate, recorded that the total cost of repair to the shipping container was just over $5,000, and would involve a little over 100 hours of labour. The detail contained in that quote does not on its face allow any conclusion to be drawn about the extent of the damage, its precise location nor any measurements by which the shipping container was deformed in the collision. 86None of the experts inspected the damaged shipping container. There were no photographs tendered of the damage to the shipping container. It appears that the description that the plaintiff gave to the police (Exhibit G) was that there was "minor damage" to the top of the container. 87Although the container was taken back to the yard at Hobbs Bros, none of the employees of the defendant gave any evidence about the state of it, including any damage to it. 88The plaintiff gave little evidence about the damage. At T57.12 he said he thought he looked and there was " a bit of a bend on the container ... ". He made it plain that he could not remember exactly what it looked like. Later on in his cross-examination (T67.25), he said: "I didn't look at the container. I was pretty shaken up. So, the container still looked like a container to me. I didn't do a survey on it or anything." 89There was some evidence from the conclave of experts as to the extent of damage to the shipping container. Dr Gibson agreed that there was nothing that he had seen which allowed him to conclude that the damage to the container extended over any identified or measured distance. The other experts did not express any different view from this. 90However, Dr Gibson, based upon the interpretation of Exhibit K, the repair quote, inferred that the damage was " quite significant ". Mr McDougall seemingly agreed with this conclusion because he thought that the container was relatively new and had been " written off " and not repaired. The source of this last piece of information was not revealed. 91Mr Joy advanced the view rather tentatively that because of the number of components which were replaced, it was likely that the damage was " substantial, ... not minor ". 92The evidence is not sufficient to draw any conclusion about the extent of the damage to the shipping container, including the horizontal distance by which the container was deformed. I am not persuaded by the evidence of the experts that I should find any greater damage than that which the plaintiff thought was the case, simply by drawing conclusions from a repair quotation. 93As a result, I am unable to find that the container was deformed horizontally by a distance of 30cm, which is one of the factual assumptions the experts were asked to make, as a basis for their opinion. 94The evidence permits only of a finding that there was some minor damage to the top of the container, which did not appear, when looked at, to be out of shape in any recognisable way.

The cabin of the motor vehicle 95The prime mover, which was a Ford Louisville 9000 Prime Mover, was, at the time of the accident, a relatively old vehicle. It had been built in 1993 and was appropriately registered at the time of the incident. An explanation of some features of it is necessary in order to understand and decide the issues pleaded by the plaintiff. The full detail of these matters can be found in the various expert reports. There was no dispute about the detail of the cabin layout. 96The following features of the prime mover, and in particular its cabin, ought be noted. The driver's seat was an air-suspension model known as a "Bostrom 915" seat. Air pressure, which is stored in the truck's main air supply system, is used to raise or lower the seat. This occurs when a push-pull valve fitted to the lower left front corner of the seat base is operated. The seat incorporates a damping system in the suspension mechanism to prevent uncontrolled ongoing bounce-rebound motion in the suspension mechanism. The seat was able to travel vertically from its lowest adjusted setting to its highest adjusted setting through a distance of approximately 15cm. 97There was no evidence from the plaintiff as to where the seat was positioned in respect of its vertical travel at the time of the accident. 98Dr Andrew McIntosh noted in his report (Exhibit C) that he had measured the vertical clearance between the top of Mr Tarres' head and the cabin roof as being between 25cm and 26cm on the day of his inspection in April 2007. Whilst there was no doubt that Dr McIntosh's measurement was an accurate one on that day, there was no evidence relating the seat position on the day of the measurement when compared to the seat position on the day of the accident. 99It is therefore not possible to find with any precision what the clearance was, between the top of Mr Tarres' head when in the driver's seat and the cabin roof, without knowing the vertical position of the seat on the day of the accident. 100The pleadings included an allegation of a defect in the seat mechanism. The evidence suggested that there was only one occasion when the seat in the prime mover did not operate adequately. According to the plaintiff's evidence, on one occasion in the four month period that he drove the vehicle, he can remember the air-tube that supplied air to the seat becoming blocked and the airflow into the seat was stopped. Upon noticing that, he freed the air tube and thereafter he experienced no further problems with the seat. 101In light of that description in his evidence (T32-T33) and the absence of any other evidence suggesting a defect with the seat mechanism, I am not prepared to conclude that there was any operative defect in the seat at the time of the collision. 102The configuration of the inside of the cabin is also a relevant matter. There are some photos of it that assist in the description. Externally, the cabin is a typical cube. The driver's seat is situated so that the back of it is close to, but not touching, the rear wall of the cabin. In front of the driver, in addition to the steering wheel and instruments, there is an overhead console which is shown in a photograph in the expert report of Dr Thomas Gibson of 18 February 2008 (Ex 14, Figure 8). He describes it as a windscreen header panel. 103The precise dimensions of the windscreen header panel were not given in evidence. An observation from the photographs suggests that the nearest corner of it to a driver would extend down from the roof by some six centimetres or so and back towards the driver from the edge of the windscreen by about the same distance. Although some of the experts inspected the prime mover involved, none measured the windscreen header panel. 104Its presence necessarily narrowed the space which otherwise existed between the roof, the windscreen and the head of a person in the driver's seat. 105In the absence of any clear evidence about the internal measurements of the cabin, the height of the seat, and the height of the driver's head, at the time of the accident, I am unable to conclude by how much that space was in fact narrowed, except that it appeared to be about six centimetres or so.

Seatbelt 106The other feature of the prime mover's cabin that formed a central part of the factual investigation, and was said to be relevantly a cause of the plaintiff's injuries, was the driver's seatbelt. The passenger's seatbelt was not the subject of any evidence, and was not relevant to the issues in the proceedings. It can be ignored. 107The driver's seatbelt that was fitted was a lap seatbelt and not a lap-sash seatbelt. In the joint expert report (Exhibit L), the engineering experts agreed that the seatbelt fitted to the prime mover complied with all relevant Australian Design Rules, including those relevant to seatbelt equipment at the date of the building and the delivery of the truck. I am satisfied that the seatbelt that was fitted included, as part of the assembly of it, a Type 4N Emergency Locking Retractor ("ELR"). 108On each occasion between August 2004 and July 2008, when the prime mover was inspected by the Roads and Traffic Authority of New South Wales in accordance with the Heavy Vehicle Inspection Scheme, and a report was produced, the seatbelt was passed as suitable for the continuing registration of the vehicle (Exhibit 12). 109Although from time to time, it appears that a defect notice was issued as a consequence of these inspections, there was no suggestion that these defect notices had anything to do with the seatbelt. The notices, and the defects identified, all of which were rectified to enable renewal of registration, can be put to one side, because they are not relevant to any issue in these proceedings. 110One of the required features of a seatbelt, in order to comply with the Australian Design Rules, was that it incorporated an ELR. This, according to "Australian Design Rule 4/01 - Seatbelts", is: "a retractor incorporating a locking mechanism that is designed to lock under abnormal operating conditions." 111In Exhibit D, Mr Brendan McDougall, a mechanical engineer, reported that with respect to ELR's, there were two basic requirements of the Australian Design Rule 4. The first of these was that for Type 4N seatbelts the retractor must lock when the vehicle is decelerated at more than 8.3m/sec/sec. 112The second requirement of Australian Design Rule 4 was that the ELR must lock when the belt is withdrawn from the retractor at an acceleration rate of more than 20m/sec/sec . The design of the ELR is that it should lock with 50mm or less of strap movement. 113The joint report (Exhibit L) records the agreement of the experts that the force required to trigger the operation of a Type 4N retractor system, is as follows: (a)horizontal deceleration of not less than 8.3 m/sec/sec ; and (b)strap reel-out acceleration of not less than 19.6 m/sec/sec . I should note that sometimes in the evidence, marginally different figures were used, namely 8.3m/sec/sec and 8.5m/sec/sec, and also 19.6m/sec/sec and 20m/sec/sec. I regard these figures as the same and hence interchangeable for all of the purposes considered in this judgment. 114Within the ELR, there are two separate mechanisms. The first, activated by a sensing device, is designed to lock the retractor when the vehicle is decelerated at greater than the specified rate. The second, which consists of cams engaged by inertia, is designed to address the requirement of the speed at which the belt is withdrawn. Another part of the seatbelt mechanism, which is integral to the ELR, is a spring activated retractor mechanism, which retracts the seatbelt after it has been reeled out, so that after being buckled around the driver, the seatbelt is tightened and remains tightened. 115The working and mechanism of a seatbelt was described in an uncontroversial way by Mr Alan Joy in his report of October 2007 (Exhibit 16) where he said at page 14: "9.3.2 The fundamental mechanisms consist of a spring-tensioned reel which retracts the webbing when not in use, but allows some degree of free 'excursion' movement when fastened and there are no 'crash forces' acting on the vehicle or the occupants. 9.3.3 In the event of significant forces being generated by a collision or an overturn, the mechanism will lock the belt reel restraining the occupant and limiting their movement. 9.3.4 The reel which allows a conventional inertia reel seat belt to extend and retract in normal circumstances is equipped with not one but two locking mechanisms. 9.3.5 The first mechanism is one which detects 'abnormally' rapid reel-out of the belt and locks the reel, thereby limiting belt extension and occupant excursion. This is the locking characteristic which most people will encounter in the day-to-day usage of seat-belts as a result of attempting to pull the belt out too fast when putting it on. 9.3.6. The second mechanism is one which detects that the vehicle (to which the reel is bolted) is being subjected to forces in excess of those expected to be encountered in the course of normal operation, eg, forces generated in a collision or an overturn. ... 9.3.7 The two mechanisms operate completely independently of one another." 116I accept this description. 117It is necessary, against these observations of the type of seatbelt fitted, to attempt to understand the evidence as to how the driver's seatbelt in fact functioned, leading up to and at the time of the collision. 118The plaintiff's evidence was that on a number of occasions prior to the accident, the seatbelt did not function the way he understood it should. In his statement (Exhibit A), at [26], he observed that on a number of occasions the seatbelt would not retract and it would remain loose around his lower abdomen. He also said that when he pulled the seatbelt out quickly, it did not always lock. These observations suggest intermittent failures of both of these two parts of the mechanism. 119The plaintiff said that he had made verbal complaints to Mr Les Smith about the operation of the seatbelt on more than one occasion and that he did not observe that the particular seatbelt about which he had complained, was removed, repaired or replaced. 120The plaintiff also said in Exhibit A at [42], that immediately after the accident had occurred, with the assistance of a motorist, he stepped onto the first step outside his driver's door, which was below the level of the floor of the cabin of the truck, and realised that he still had in place around his lower abdomen the seatbelt which had not retracted. The seatbelt had not been unbuckled. This evidence was pointed to demonstrating that there was a defect in the seatbelt. 121The fact that the seatbelt could, whilst still buckled, reel out to the extent which it did, does not, of itself, demonstrate a defect. That is because the seatbelt is permitted to reel out to that extent provided that the rate of acceleration of the reel out is not more than 19.6m/sec/sec. The evidence of the plaintiff that he required assistance from a passing motorist to leave his seat and step down, does not suggest that he was doing so quickly, or at least at a rate of acceleration, such as would necessarily have resulted in the ELR mechanism operating to lock the seatbelt. 122In short, this incident is in keeping with the ordinary operation of a properly functioning seatbelt. It does not, without more, support a finding that the seatbelt was defective. 123The various employees, to whom the plaintiff said that he complained, had varying recollections about the complaints. Mr Mark Robson, a fellow truck driver, gave evidence that when he had driven the Ford Louisville prime mover the seatbelt had problems with its operation, including that it sometimes did not retract. He had noticed this on between four and six occasions. He described the seatbelt as " ...always a bit dodgy ". Although there was an attack on the accuracy and reliability of his evidence, having seen Mr Robson give his evidence, and in light of the other evidence in the matter, I am satisfied that his evidence ought to be accepted. 124Mr Les Smith who was employed as an allocator by Hobbs Bros at the relevant time, recalled that the driver's seatbelt in the vehicle in question had a problem in that it did not always retract. In his statement (Exhibit B) he said that the plaintiff, Mr Tarres, had complained about the condition of the seatbelt on a number of occasions. He said that Mr Tarres was told by him either to make a record in writing of his complaint on the daily worksheet or alternatively to take the truck to the workshop to get the seatbelt fixed. 125The workshop was located on the grounds of Hobbs Bros at Ingleburn, although it was run by independent mechanics known as NorthWest Mechanics. 126In cross-examination, Mr Smith adhered to his evidence-in-chief that he had a recollection of Mr Tarres complaining to him about the seatbelt. He said that he had himself experienced the seatbelt not retracting on one occasion prior to Christmas 2006, when he observed that the seatbelt was hanging loosely. He attempted to retract it but was unable to do so. 127If the seatbelt did not retract, then there must have been a failure of the mechanism to operate correctly. If that happened, on more than one occasion, then it is more likely than not that the seatbelt mechanism was defective. 128He reported the seatbelt malfunction, he said, to Mr Lovatt, his superior. I accept the evidence of Mr Smith, which I thought was given with some thought and care, both as to the complaints made to him by Mr Tarres and the complaint he made to Mr Lovatt. I also accept his evidence that he himself had observed a problem with the seatbelt when it did not retract. 129Mr Lovatt, who was a manager at Hobbs Bros, gave evidence that the plaintiff did not make any complaints to him about the seatbelt in the prime mover, nor did any other drivers of that prime mover. He said that he did not recall whether Mr Smith complained to him. 130He also gave evidence that the maintenance records for the vehicle, which were produced in Court, did not record any such complaint. The fact that the records that were produced did not contain any notification of any concern whatsoever about a seatbelt was not in contest. However, the evidence of Mr Lovatt also made it clear that the records that were produced were not necessarily the entirety of the maintenance records for the vehicle. He accepted that the records were incomplete. 131The plaintiff did not suggest that he made any complaint to Mr Lovatt about the seatbelt not working. However, Mr Smith said that he did speak with Mr Lovatt. The evidence on this subject is in conflict. On this topic, I prefer the evidence of Mr Smith who seemed to me to be more forthright in giving his evidence than did Mr Lovatt, who seemed reluctant to make any admission which he perceived might compromise the interests of Hobbs Bros. As well, the subject matter of the complaint, namely that the seatbelt did not work properly, was corroborated by the evidence of the complaints by the plaintiff to Mr Smith, which I accept, the observations of Mr Smith and Mr Robson, and the inherent likelihood that given the state of the seatbelt, and Mr Tarres' nature, he would not have held back from voicing any complaints. 132Mr Turner who was relevantly the principal mechanic at the Ingleburn site, denied any recollection of any complaint being made about a seatbelt. 133Mr Turner's evidence was that at regular intervals when the vehicle was serviced, one of the requirements of the service was that the retracting capacity of the seatbelt was tested, and if it were found to be faulty at that or any other test, then the whole seatbelt would be replaced. That course was followed because it was cheaper and more efficient to simply replace the entire seatbelt than to try and repair it. 134I accept that Mr Turner was doing his best to recall whether he had received any complaint about the seatbelt, but the fact is that he was one of a number of mechanics, albeit the principal one, at the workshop. The workshop looked after the whole of Rozelle Storage carrier's fleet, which included many different trucks. Mr Tarres' evidence that he complained to "the mechanics" about the seatbelt can be readily accepted, and is not inconsistent with that of Mr Turner because he may well have, and I find that it is more likely than not that he did, complain verbally to a mechanic other than Mr Turner. 135Accordingly, I accept that there were two or three occasions, as the plaintiff said, when he complained about the defective operation of the driver's seatbelt on the prime mover that was later involved in the accident, either to Mr Smith of Hobbs Bros, or else to the mechanics at NorthWest Mechanics. The complaint to NorthWest Mechanics was made in accordance with directions that the plaintiff received from his superior at Hobbs Bros. 136The seatbelt was inspected sometime after the accident by a number of the experts. 137Dr Andrew McIntosh inspected the truck and the seatbelt on 26 April 2007. He recorded that the seatbelt buckle functioned and did not undo under manual loading. He also reported that the seatbelt retractor did not always lock when he pulled the belt rapidly. He said that it "... did not always lock in a reliable manner ". 138Mr McDougall did not undertake any particular inspection of the seatbelt itself. 139Mr Alan Joy inspected the prime mover on 5 October 2007. At that time he found that the belt rolled out and retracted in a normal manner at typical rates of reel out normally associated with extending the belt to fasten it. He reported that rapid reel out of the belt resulted in locking of the reel on most, but not all occasions. 140Dr Gibson inspected the prime mover on 15 November 2007. He assessed the seatbelt and found that on each occasion when he tested it, it operated as expected - it locked when subjected to a rapid spooling out motion. He noted that the seatbelt buckle was functional. 141When considering this question in the joint report, the experts noted that the testing of the seatbelt in situ was limited. The report noted that the method of testing had a number of limitations incorporated into it. The experts all agreed that the testing carried out by Dr McIntosh and by Mr Joy, did not exclusively indicate a defect. 142The experts then considered the question of whether there was a defect in the seatbelt that required repair or replacement. The experts answered the question this way: "15(a) The experts' testing did not confirm a defect but indicated the need for further investigation of the alleged fault." No further investigation of the alleged fault was apparently carried out. 143The experts were asked to express an opinion as to whether there was a defect in the mechanism of the lap-sash seatbelt, consistent with it not locking in the manner described by the plaintiff and the assumptions which they were given which generally accorded with the description he gave of what happened in the accident. 144The agreed response to that question was this: "15(b) The results of the testing were possibly consistent with there being a defect in the mechanism of the lap seatbelt leading to it not locking in the manner described by the plaintiff in the ... assumptions. The tendency of the belt to not lock on some occasions when reeled out manually in testing is not exclusively consistent with there being a defect in the mechanism." 145These opinions were explored in oral evidence with the experts. 146It was plain from that evidence that the reservation of the experts in their joint opinion, about whether the testing revealed a defect in the mechanism, related to the less than scientific nature of the testing methodology. However, as was indicated, the test used was the same as that carried out for the purposes of registration and therefore one would expect that if it were applied on a sufficient number of occasions it would be, broadly speaking, accurate. I accept what Mr Joy said at T262.44 with respect to the test that: "...it has that subjectivity about the rate at which we pulled the belt out." 147The evidence of the experts about their testing does not cause me to doubt the accuracy of the evidence of the various lay witnesses to which I have earlier referred which satisfy me that there was a defect in the seatbelt.

Collision forces on the prime mover 148The experts were asked to identify the forces likely to have acted upon the prime mover, and separately the forces acting upon the plaintiff, when and immediately after the container struck the bridge. 149Care needs to be exercised in considering the experts' opinions as written in their individual reports and in the joint report. This is because a number of the factual assumptions which they were asked to make have not been proved. In particular, the assumptions as to speed of the vehicle at the point of collision and the extent of deformation of the shipping container have not been established by the evidence. 150Accordingly, absolute calculations as to velocity and force are unlikely to be accurate. However, apart from these matters, the lack of factual foundations did not derogate from the analysis of the experts, particularly as to the nature and direction of forces acting on the prime mover, and then the plaintiff within the prime mover cabin. 151The experts agreed that the initial force acting on the prime mover and trailer was directed rearwards. They agreed that this was a brief high intensity force that would have decelerated the vehicle rapidly, but the magnitude of the force was uncertain. 152In addition, three of the experts, Dr McIntosh, Mr McDougall and Mr Joy, were of the opinion that this rearward collision force on the trailer would also have created the conditions for causing a vertical motion of the cabin of the prime mover, which would relate to either or both of the forces generated by the container striking the bridge or the forces generated by engine torque. 153Dr Gibson agreed that the rearward collision force might have created the conditions for causing a delayed vertical motion of the cabin of the prime mover. He said that the magnitude of that vertical motion would be unknown but that it would be of significantly lower magnitude than the horizontal force. 154Mr McDougall and Mr Joy also agreed that an additional and immediately subsequent vertical motion might have been imparted to the plaintiff, when the container deformed and was pulled under the bridge. 155In the course of oral evidence, the experts' views on these forces were the subject of further discussion. Dr Gibson explained that by reason of the interaction of the forces on the container, the trailer and the prime mover, the back of the prime mover would be lifted up after the initial motion had ceased. Dr McIntosh agreed with Mr Gibson but refrained from expressing any view as to what the force was, and what the movement was in terms of distance, degree or angle. 156Mr Joy agreed that there would be vertical forces and agreed with Dr McIntosh's view that it was not possible to form any opinion about the timing and the magnitude of the vertical forces. Mr McDougall agreed but thought that the matter was somewhat more complex. He also pointed out that the totality of the movement of the vehicle would probably occur in one to two seconds and that the forces which were being discussed and described would, as a primary force, generally occupy the first few 100 milliseconds. 157He, too, was not prepared to give any opinion about the magnitude of the forces. Mr McDougall concluded by saying (T225.34) this: "I think it's a very complex motion which may go on here and I can't say - I believe there will be vertical forces involved. The magnitude of those, I just - with the information that we have got, I just can't quantify the magnitude of those forces." 158In an attempt to summarise their opinions, I posed this question (at T227.4): "Now, would I be safe, gentlemen, then to conclude that on the assumptions you have made about how the accident happened, and leaving some generality around the measurement of deformation, other than to say that it was of some significance because of the repair needs articulated, would I be safe to conclude that the initial primary force would be in a rearward motion, as your report all agrees on, thereafter there will be a complex of forces which will act on the prime mover in a complex way over a relatively short space of a second or two or three seconds. And whilst there may be a complex of forces, on the amount of information you have, it is not possible to tell with any precision the predominant one of those forces, or the strength of those forces. Would that be a fair way of summarising the conclusion on this topic?" 159Dr Gibson thought that the forces that occurred after the rearward motion would be significantly lower and delayed. Mr Joy agreed with Dr Gibson that any subsequent force would be lower. Mr McDougall agreed that the peak force would be lower and Dr McIntosh did not demur. 160I will accept these conclusions.

Impact of forces from prime mover to driver 161Having established the forces acting upon the cabin of the prime mover, the experts were asked to agree on the forces that acted upon the plaintiff as the driver in the cabin. 162The experts all agreed that the motion of the plaintiff would initially continue forwards until he was either restrained by his seatbelt or until he encountered some part of the interior of the vehicle. The steering wheel and its position with respect to the plaintiff was identified as a relevant possible feature which the plaintiff may have either struck, or else been restrained by.

Vertical motion 163Generally, it was thought there would be some subsequent vertical motion relative to the movements of the cabin. As Mr McDougall said with respect to that: "It may not be perfectly at the same time, so that the cab may be going up and the driver may moving down...or vice versa." (T232.38) 164The experts were also agreed that the motion of the driver in the cabin would occur in a very short space of time immediately following the impact with the bridge. It was agreed that the time frame was within one to three seconds. 165It is important to note when dealing with any question of vertical motion, because a properly fitted, adjusted and functional seatbelt would aim to keep the driver in contact with the seat, one is dealing with relative motion of the driver within the seatbelt and relative to the cabin. In other words, the question is what would then happen if the cabin were moving downwards and the driver upwards or, alternatively, if the driver were moving upwards and the seat moving upwards but at a different rate? 166Each of the experts agreed that there would be a vertical motion of the driver relative to the cabin, except for Dr Gibson who restricted his agreement to the possibility of vertical motion. It was also agreed that, subject to two qualifications to which I will shortly come, a lap seatbelt properly adjusted would ordinarily restrain vertical motion of a driver. That is because the two anchor points of a seatbelt, each of which with a fixed point in the cabin, would restrain the driver (if they are operating correctly) from vertical movement differentially with the cabin. 167There were two exceptions identified to this agreement by Mr Joy, namely, (a)whether the seatbelt was correctly fitted with the occupant seated normally. In other words, Mr Joy identified a possible reason why the seatbelt would not perform adequately, namely that if the occupant was seated in an unusual anatomical position relative to the way in which the seatbelt was meant to operate. Dr Gibson agreed that in his experience, a lot of occupants are not correctly seated and fitted with a belt. Dr Gibson made a point in his evidence (T272.30) that in this particular case, if the plaintiff was leaning forward at the time, there would be a much greater likelihood of hitting some area of his head on a part of the vehicle, because he would be closer to other parts of the vehicle; and (b)that from time to time Mr Joy had observed that seatbelts, otherwise operating entirely correctly, did not instantly restrain the occupant but rather allowed a small amount of additional reel out which would mean that the occupant was not firmly restrained. 168Both of these exceptions meant that although a seatbelt might be free of any defect and operating correctly, the occupant might not be restrained. 169Each of these can be dealt with briefly. Regarding the first exception, the plaintiff gave evidence that as he approached the bridge, the lap seatbelt was secured around his midriff in a normal, firm fashion. As well, the evidence was that as the vehicle was proceeding under the bridge the plaintiff was driving it in a normal manner and commenced to accelerate. He was not cross-examined on any of this evidence. From this evidence I would be prepared to infer that the plaintiff was sitting normally in his seat, and that his body position was neither unusual nor was it a cause of the seatbelt failing to restrain him. If the defendants wanted to rely on this exception, then they needed to address some cross-examination to the plaintiff to establish that his bodily position was out of the usual. They did not. 170I am prepared to conclude that the plaintiff was sitting in an ordinary typical anatomical position with the seatbelt fastened firmly around his waist. The first exception to which Mr Joy referred, is not established by the evidence in this case. 171As to the second exception, namely that there is some, in effect, allowable slack in an otherwise properly operating seatbelt, Mr Joy gave that evidence based on upon conclusions in some cases. There is no evidence that the seatbelt in this case worked in any way along those lines. Such testing as was done by the experts after the accident did not suggest an operation of that kind. In short, there is no evidence that supports that exception as being an available inference or conclusion in this case.

Vertical velocity 172None of the experts felt able to express a concluded view as to what the actual vertical velocity, or force, was which acted upon the plaintiff at the time, or immediately after the collision. Equally, each was agreed, assuming that the seatbelt operated correctly, that the plaintiff's body would have stayed in contact with the seat and have been restrained from moving, assuming the seatbelt worked correctly. 173The threshold force required to restrain the plaintiff in position in the seat was 8.5m/sec/sec. In other words, once the speed of the movement was at or more than 0.85g, then the threshold for operation of the seatbelt locking mechanism had passed, and accordingly it should immediately lock, thereby restraining the plaintiff. 174Mr McDougall gave evidence that it was his opinion that there would be no separation between the driver and the driver's seat unless there was a differential in acceleration in excess of 1g. At T258.6 he said: "If there is no differentiation of 1g, his weight will hold him, gravity will hold him in the seat, so if there is a differential in acceleration of 1g, then I think this should lock given that it was supposed to lock at 0.8g. I think that is correct." 175Neither Dr Gibson nor Dr McIntosh expressed any view. But Mr Joy considered the matter and then gave this explanation of his understanding at T258.25: "In simple terms, the proposition Mr McDougall has just put, that if there is a differential between the movement of the person in the seat and the seat in excess of 0.85g then locking should occur. In other words, if the upward movement of the seat to which the inertia reel is attached, the upward movement decelerates at more than 0.85g, the locking threshold for a 4N belt, then locking should occur." 176He was then asked whether he had any disagreement with Mr McDougall and he said: "No. In essence I don't disagree with what he just said." 177As I understand the effect of this evidence, it is this: the force of gravity is 1g. If one assumes that the only force which is operating on the driver and the cabin (including the seat) is gravity, then the driver will remain in contact with the seat and the seatbelt will hold him in place. 178If there is a differential vertical motion so that there is a deceleration greater than 0.85g, then the seatbelt should lock and restrain the driver. Necessarily, in order to overcome gravity and project the driver in an upward motion, the force has to be greater than gravity, namely 1g. In those circumstances the seatbelt ought, if it is operating properly, to lock and keep the individual firmly fastened and restrained in his seat. 179I accept this evidence. In short, this means that if the plaintiff could be separated from his seat, which was necessary if his head was to strike the roof of the cabin, then the forces were such that the seatbelt should have operated so as to restrain him from doing so.

Significance of injury location 180A number of the experts regarded the presence (or absence), and the location of the injuries, to the plaintiff as being important. I have previously identified at [51]-[57], some of the plaintiff's evidence on this issue. 181There were no injuries to any other part of Mr Tarres' body recorded. Of particular note was that there were no chest or abdominal injuries. There was no bruising consistent with the seatbelt having restrained the plaintiff, of a kind that are seen from time to time in motor vehicle accidents. There were no facial injuries. The absence of these type of injuries led Dr McIntosh to opine that there was no forceful impact of the plaintiff with any other part of the vehicle. He reasoned that the only impact was between the top of the plaintiff's head and the ceiling of the cabin. Both Mr McDougall and Dr McIntosh expressed the opinion that the fact of the impact to the top of the plaintiff's head causing the spinal compression injury was consistent only with the seatbelt having failed to operate correctly. 182Mr Joy did not entirely agree with this reasoning or opinion. He advanced the two reasons for his disagreement (T272) as being the possibility of the two exceptions to which I have earlier referred. As indicated earlier, I do not regard those exceptions as having factually occurred in this case and accordingly, I do not regard Mr Joy's evidence as denying the connection between the head injury and the seatbelt failing to operate correctly. 183Dr Gibson's view was that it was more likely that Mr Tarres had struck his head on the windscreen header panel, with the seatbelt operating to restrain his pelvis from moving, but with his head and upper body articulating forward until it struck the panel. 184The basis for this opinion, which was expressed first in his report of 18 February 2008 (Exhibit 14), and adhered to in his evidence, seems to be a combination of two principal features: (a)his opinion, which was generally shared by other experts, that the seatbelt mechanisms are very reliable, and therefore it would be unexpected and unusual for a seatbelt to fail to lock; and (b)his demonstration of the movement of the body of a volunteer within the cabin. The photographs in Exhibit 14 depict adequately this demonstration. 185Whilst I accept the experts' opinion about the general reliability of seatbelts, the fact in this case was that the seatbelt in this truck did have a defect in it before the accident. This diminishes, if not entirely removes, the element of reliability as being important in this case. 186I do not think that the demonstration is a sound basis for his conclusion in this case. That is because of the differences and uncertainties surrounding it. They are: (a)the volunteer in the demonstration was 180cm tall. Mr Tarres is 170cm tall; (b)the anthropomorphic features of the volunteer and Mr Tarres were not, in fact, compared. Did one have, proportionally speaking, longer legs than the other; did one have, proportionally, a longer neck than the other? These features were agreed to affect what ought happen to a driver (T236.48-T237.10); (c)the height of the seat, and the weight of the driver which can affect the operating height of the seat were unknown, for both Mr Tarres at the time of the collision and the volunteer in the demonstration. These matters would affect the likelihood of a driver travelling forward being able to strike his head on the windscreen console. (T237-T240). 187It is clear to me from these matters, and the evidence of the experts about this demonstration including that of Dr Gibson, that it is an unreliable basis for grounding any conclusion that it was possible, let alone likely, that a driver's head would collide with the windscreen header panel with the seatbelt operating correctly. 188I am not persuaded that I should accept this opinion of Dr Gibson. On the contrary, I am persuaded by the contrary opinions of the other experts. 189On this issue, I prefer the clearly expressed opinions of Mr McDougall and Dr McIntosh, over what seems to me to be the agreement of Mr Joy to, and the opinion of, Dr Gibson.

Conclusion on the seatbelt 190I conclude therefore, from a combination of facts which I will briefly outline, that the seatbelt should have, but did not, operate so as to restrain the plaintiff and prevent his head hitting the roof of the cabin. The factors are these: (a)there is no doubt that there was an element of vertical force imparted on the plaintiff in the course of the collision; (b)the vertical forces in the very short period immediately after the collision were of sufficient magnitude to have crossed the threshold for the operation of a seatbelt, namely, 8.5m/sec/sec (0.85g); (c)the only other likely collision point for the plaintiff's head, was a windscreen header console. Having regard to the plaintiff's height and the position of the truck's steering wheel, it is unlikely in my view that the plaintiff's head could have collided with the console without his body first colliding with the steering wheel and other parts of the infrastructure within the cabin; (d)there are no injuries consistent with any such collision having occurred and the distances involved make it unlikely that his head alone could have struck the console; (e)the absence of any other injuries (facial, abdominal or the like) together with the plaintiff's evidence and the objective diagnosis of his injuries, all point to a collision between the top of his head and the roof of the cabin as being the most likely mechanism; (f)this ought not have occurred if the seatbelt had been operating correctly.

Breach of Duty 191Because this proceeding is one to be considered under the Motor Accidents Act 1988, the test for breach of duty is that which is well known in the common law. 192It was stated by Mason J in Council of the Shire of Wyong v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-48 where his Honour said: "In deciding whether there has been a breach of the duty of care, the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal in fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors." 193It is a well-known, perhaps notorious fact, that a properly fitted and operating seatbelt is intended to, and will, have the effect of restraining a person in their seat in the event of a collision. This restraint prevents the person being tossed around inside a vehicle, or perhaps ejected from a vehicle, and thereby minimises the prospect of any injury occurring. 194So obvious and well supported by scientific research was this fact, that many years ago the various Parliaments throughout Australia introduced legislation making the wearing of seatbelts compulsory. In other words, the role and purpose of seatbelts is well known, and beyond debate. The risk of injury to a driver of a motor vehicle who was not restrained or not properly restrained by a seatbelt was clearly foreseeable and required a response. It could not be ignored. 195The plaintiff's case on breach of duty was that: (a)the seatbelt in the prime mover had been the subject of intermittent defects for some time prior to the plaintiff's accident. Hobbs Bros and Rozelle Carriers were on notice of those intermittent defects and should have, but failed to, remedy the defects by having the seatbelt replaced; and (b)the defendants ought to have upgraded the lap seatbelt to a lap-sash seatbelt which was safer and which could have been installed at no great expense. 196There was initially an allegation that the seat in the Ford Louisville prime mover was defective. That allegation was ultimately abandoned. There was no evidence to support such an allegation. 197In considering the first of the allegations on breach of duty, it is necessary to consider the findings which I have earlier made about complaints which were made, and the context or knowledge of the defendants at the time those complaints were made. 198Hobbs Bros and Rozelle Carriers must have known of the purpose of seatbelts. I find it hard to conceive that a trucking company, and all of its senior executives, would not have known at the time of this accident what seatbelts were intended to do, what they could do, and why properly operating seatbelts ought be included as a minimum requirement in any vehicle which was operated. As well, the law in NSW required them to have such a seatbelt. 199If an employer knowingly sent out a truck to be operated on the streets of Sydney without that truck having a properly operating and effective seatbelt, that would be obviously a breach of duty within the principles enunciated in Shirt . There would be a foreseeable risk of harm, the magnitude of harm could be very great and the likelihood of injury, in the event of an accident, high. In such a case, there are no competing considerations other than perhaps, cost. 200In this case, I have found that the employer was informed of complaints about the operating effectiveness of the seatbelt. It received those complaints on a number of occasions from the plaintiff. The plaintiff was directed to the employer's agent, NorthWest Mechanics, and nothing was done to replace the seatbelt. As well, Mr Smith, one of the supervisors had himself witnessed the defective seatbelt, and did so shortly prior to the accident. 201I accept the evidence of Mr Turner, the principal of NorthWest Mechanics, that if he had known that a seatbelt had a problem with its operation, the appropriate course would have been to replace the seatbelt because it was cheaper to replace the belt than to attempt to repair it. 202After receipt of the plaintiff's complaints, either a full and complete investigation ought to have been done, which would have revealed the existence of an intermittent defect, which would have mandated the replacement of the seatbelt. Alternatively, even if a full investigation was not thought to be warranted, the seatbelt ought to have been replaced in any event. 203The defendants acted unreasonably in failing to replace the seatbelt, and were accordingly in breach of their duty. 204The second allegation of negligence centres upon the proposition that as lap-sash seatbelts were safer than only lap-only seatbelts, it was unreasonable of the defendants to have provided a truck to Mr Tarres that did not have a lap-sash seatbelt. 205Mr Lovatt, who was at the relevant time the Operations Manager of Hobbs Bros, and who was the most senior executive of the defendants called to give evidence, said that for the whole of the time that he was working with Hobbs Bros he was aware that a lap-sash seatbelt would be safer than a simple lap seatbelt. He said he thought that was obvious and that everyone would be aware of that. 206I agree that it was obvious. Initially when seatbelts were made available in motor vehicles, only lap seatbelts were made available. Over time, lap-sash seatbelts came to be fitted to motor vehicles and they are what is now required by law, at least in the driver's seat. 207The mere design of the lap-sash seatbelt, additionally restraining as it does the upper body of the driver, makes it obvious that generally speaking the lap-sash seatbelt will be safer than a lap-only seatbelt 208Mr Lovatt was asked why he had not made a recommendation to the directors of the company to upgrade the seatbelts to lap-sash seatbelts. He said that he had never even thought about it. Taking that answer in combination with his earlier answers, I infer that Hobbs Bros' position was that the legal requirement for seatbelts, as is conceded to be the fact by the plaintiff in this case, in the Ford Louisville Prime Mover was only for a lap seatbelt. In those circumstances, Hobbs Bros took the view that they were lawfully entitled to operate the vehicle on the roadway, which was a correct view, and there was no need to upgrade the seatbelt to a lap-sash seatbelt. Again, speaking only of legal obligation, this conclusion is undoubtedly correct. 209It appears from the balance of Mr Lovatt's evidence that there was no consideration given either by him, or on the basis of his evidence by the directors of the company, to upgrading the lap seatbelts to lap-sash seatbelts. 210Mr Turner's evidence was that had he been asked to upgrade the seatbelt in the truck, to replace lap seatbelts with lap-sash seatbelts, it could have been done without difficulty. However, he was never asked to undertake that task and he had never suggested it. He said it would not have been a big problem to replace the lap seatbelts with the lap-sash seatbelts. 211The defendants disputed that their failure to replace the seatbelts, so that a lap-sash seatbelt was fitted, was negligent. They submitted that there was no demonstrated lack of reasonable care for the following reasons: (a)the minimum requirements dictated by the relevant motor vehicle regulations, which permitted a truck of this kind to lawfully operate on the road fitted with a lap seatbelt only, was a positive demonstration of what the common law would regard as a reasonable standard in all the circumstances; (b)the plaintiff's allegation was not anchored in point of time (other than a time prior to the accident in question), that is, when was it said that the defendants were negligent for failing to replace the seatbelts; (c)whether the defendants' conduct was reasonable or not had to be considered in light of the replacement of all lap seatbelts in trucks in their fleet and not just as a matter of isolated conduct in respect of this particular vehicle; and (d)there was no identified precedent for conduct of this kind being found to be negligent. 212It is unnecessary to examine each of these arguments because I am satisfied that the defendants did not act unreasonably in failing to replace the lap seatbelts with lap-sash seatbelts. 213It is to be remembered that the central feature of an allegation of the existence of a duty of care and any breach of that duty is a failure to act reasonably. Gleeson CJ said in Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517, this at [5]: "In legal formulations of the duty and standard of care, the central concept is reasonableness. The duty is usually expressed in terms of protecting another against unreasonable risk of harm, or of some kind of harm; the standard of conduct necessary to discharge the duty is usually expressed in terms of what would be expected of a reasonable person, both as to foresight of the possibility of harm, and as to taking precautions against such harm. Life is risky. People do not expect, and are not entitled to expect, to live in a risk-free environment. The measure of careful behaviour is reasonableness, not elimination of risk. Where people are subject to a duty of care, they are to some extent their neighbours' keepers, but they are not their neighbours' insurers." 214I am satisfied that whilst it may have been safer to have had a lap-sash seatbelt, and that may even have been the preferable course, the failure to replace the lap seatbelts and permit the Ford Louiseville Prime Mover to be operated lawfully in accordance with current motor vehicle regulations, does not persuade me to the conclusion that the defendants' conduct was negligent, and that they were acting unreasonably. 215In summary, the defendants breached their duty by failing to replace the particular lap seatbelt with another one which operated without a defect. However, I am not satisfied that the plaintiff has established their second allegation of failure to provide Mr Tarres with a truck with a lap-sash seatbelt as a particular of breach of duty.

Causation 216The principles of causation that are to be applied in the determination of this case are those that the common law requires. There is no statutory intervention of the kind seen in the Civil Liability Act 2002 affecting the determination of causation in this case. 217Mason CJ said in March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 515 this: "The common law tradition is that what was the cause of a particular occurrence is a question of fact which ' must be determined by applying common sense to the facts of each particular case ', in the words of Lord Reid: Stapley v Gypsum Mines Ltd (1953) AC 663 at 681. ... It is beyond question that in many situations the question whether Y is a consequence of X is a question of fact. And, prior to the introduction of the legislation providing for the apportionment of liability, the need to identify what was the 'effective cause' of the relevant damage reinforced the notion that a question of causation was one of fact and, as such, to be resolved by the application of common sense." 218As Hope and Priestley JJA said in Barnes v Hay (1988) 12 NSWLR 337 at 339: "What happens in practice and what we think the law requires is that the court decides whether the connection of the negligent act or omission of the defendant to the plaintiff's loss was such that the defendant should be made liable for it. In the present case we would conclude that the defendant's negligence was sufficiently connected with the plaintiff's loss to be regarded as a cause of it." 219A decision on causation is as Mahoney JA said in Barnes at 353, a normative one where: "...that evaluation is made, not by a 'test' or 'guide' such as the 'but for' test, but by a functional evaluation of the relationship and the purposes and policy of the relevant part of the law." 220As Allsop P said in, if I may say so with respect, a masterful paper on causation which he presented to the Torts in Commercial Law Conference in Sydney on 17 December 2010, when dealing with the judgment of the High Court of Australia in March this: "The judgment of Mason CJ (with which Toohey and Gaudron JJ agreed) stands for the propositions that where negligence is in issue, causation is essentially a question of fact to be answered by reference to common sense and experience and one into which considerations of policy and value judgments necessarily enter; and that the 'but for' test is not a definitive test of causation." 221At common law, successive or else concurrent causes of an injury can be proved with the consequence that liability can attach to each of those identified causes where the contribution has been material and not de minimis. 222Kirby J in Roads and Traffic Authority v Royal [2008] HCA 19 summarised the principles on causation. Those that are applicable in this case were described in this way: "81. First, it is important to recognise that, in the context of the law of negligence, causation is essentially a question of fact. Relevantly, the decision-maker must reach a conclusion by the application to the entirety of the evidence of common sense and the lessons of common experience. ... 82. Secondly, the burden of proving causation-in-fact, whether at trial or in a review of factual findings on an appeal by way of rehearing, is on the claimant. The standard of proof that must be met is the balance of probabilities. ... 83. Thirdly, whilst the 'but for' test may be useful in defining the outer limits of liability where causation is contested, it is 'not a comprehensive and exclusive criterion, and the results which are yielded by its application properly may be tempered by the making of value judgments and the infusion of policy considerations'. ... 85. Fourthly, where, as is sometimes argued to be the case, several acts or omissions on the part of contesting parties are alleged to be causes-in-fact of a claimant's damage, the resolution of the contest presents a question of fact that is itself to be decided by reference to the foregoing considerations. The search is not necessarily for 'the' cause because, in some cases, two or more factors may be found to have contributed in a legally relevant way to the damage that occasions the action. If, by the foregoing criteria, a conclusion is reached that two or more causes have played a part in causing the damage, legal liability will attach so long as a nominated cause is held to have 'materially contributed' to that result. ..." 223As I have earlier identified, the seatbelt, which was fitted correctly and was being worn appropriately on this occasion, did not restrain the plaintiff in the seat so as to prevent him hitting his head on the ceiling of the cabin. 224The conditions existed for the seatbelt to operate and restrain the plaintiff, but it did not. Its failure to restrain the plaintiff was as a consequence of a defect in the ELR. Had the plaintiff been restrained, he would not have sustained his head injury. 225In those circumstances, I am satisfied that as a matter of common sense, the defect in the seatbelt was a material cause of the plaintiff's injury. 226It is obvious that another cause of the plaintiff's injury was his driving the truck in a way that meant that there was a collision with the bridge. However, this was a concurrent cause of the plaintiff's injuries and as such, does not deny the causative effect of the seatbelt defect. As will become apparent when considering the question of contributory negligence, that causative effect can be taken into account by application of the relevant statute. 227It follows from the earlier discussion that the failure of the seatbelt to operate was a necessary condition to the plaintiff's injuries. Put a different way, I am satisfied that had the seatbelt operated correctly, the plaintiff would not have sustained his injuries.

Contributory Negligence 228The defendant alleges that Mr Tarres was guilty of contributory negligence. 229The defendants pleaded that the plaintiff was negligent essentially because: (a)he did not know, or check, the height of the shipping container on the back of his trailer before driving it on a public road; (b)knowing of the height restriction of the Myrtle Street bridge, the plaintiff failed to ensure that his prime mover, trailer and shipping container could pass safely under that bridge; (c)he failed to take an alternative route which would have avoided any prospect of a collision with the low bridge; (d)in attempting to pass under the railway bridges in Myrtle Street, the plaintiff did so 'without due care' because he failed to check the height of the trailer himself and took no other steps to ensure the safety of his trailer and load before passing under the bridge. 230Any consideration of contributory negligence needs to take place in accordance with the common law as that has been affected by s 74 of the Motor Accidents Act 1988. None of the specific matters set forth in s 74(2) of the Motor Accidents Act 1988 apply to this case. Accordingly, the issue of contributory negligence needs to be determined in accordance with the common law. 231In Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552, McHugh J said at [16] this: "16. At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff was exposed. In principle, any fact or circumstance is relevant in determining contributory negligence if it proves, or assists in proving, a reasonably foreseeable risk of injury to the plaintiff in engaging in the conduct that gave rise to the injury suffered. ... But in principle, any fact or circumstance which a reasonable person would know or ought to know, which tends to suggest a foreseeable risk of injury ... is relevant in determining whether the passenger was guilty of contributory negligence ... ." 232McHugh J went on to say this: "32. The test of contributory negligence is an objective one. Contributory negligence, like negligence, 'eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question'. ... 37. ... The relevant facts and circumstances include those which a reasonable person could have known by observation, inquiry or otherwise. In cases of contributory negligence outside the field of intoxicated passengers and drivers, the courts take into account as a matter of course those facts and circumstances that the plaintiff could have discovered by the exercise of reasonable care. ... 39. In other areas of contributory negligence, a plaintiff cannot escape a finding of contributory negligence by pleading ignorance of facts that a reasonable person would have known or ascertained. A pedestrian or driver who enters a railway crossing in the face of an oncoming train cannot escape a finding of contributory negligence because he or she was not, but should have been, aware of the train. Nor does it make any difference that the pedestrian or driver had defective hearing or sight. Contributory negligence is independent of 'the idiosyncrasies of the particular person whose conduct is in question'." 233So far as concerns this issue, I am satisfied of the following relevant facts and circumstances, each of which was known to the plaintiff: (a)the plaintiff was a very experienced truck driver; (b)the maximum height of the prime mover, trailer and its cargo, which would allow him to pass safely under the Myrtle Street bridges, was four metres; (c)at no time did he in fact measure the height of the shipping container, although he could have done so, at least, at the New Directions yard; (d)although his truck had passed safely under the bridges as it was heading towards the New Directions yard, the weight of the truck had, or may have, changed because the contents of the shipping container had been removed in an exercise which lasted some hours; (e)he did not know, because he had made no calculation about, to what extent, if any, the weight of his truck had changed; (f)when seeking to navigate his truck underneath the bridge, the plaintiff himself did not alight from his vehicle to make any observation of whether there was likely to be a collision with the bridge superstructure or whether there was adequate clearance. He merely relied upon an indication from an oncoming motorist about whom he knew nothing; (g)there existed an alternative path which did not have the height restrictions imposed by the Myrtle Street bridges which he could have, but did not, follow. 234Each of these facts demonstrates to me a person who failed to take adequate care for his own safety. The plaintiff was an experienced truck driver. He knew that this was a low bridge and he had to be careful to ensure that he could travel safely underneath it, or else take an alternative route. He really did nothing at all to satisfy himself that it was safe to travel underneath the bridge on his return journey, in circumstances where his load was lighter than it was on the journey to the New Directions yard when he had been able to travel safely under the bridge. 235The fact that he brought his truck to a stop and only moved forward having received a signal from another motorist, does not excuse the contributory negligence of Mr Tarres. The skill, expertise or experience of the oncoming driver was entirely unknown to Mr Tarres. The extent of the driver's view was necessarily more limited as the truck and vehicle came closer together. The primary obligation for ensuring adequate clearance was on Mr Tarres and not the unknown oncoming driver. Hence, Mr Tarres is not excused by his reliance on that driver, although it is a circumstance which is properly to be taken into account when determining the extent of his fault. 236In my opinion, a careful driver would either have taken a different route, or else have measured the container and its height from the ground before leaving the New Directions yard, so as to be confident of his ability to pass safely under the bridges. 237In those circumstances, I conclude that a finding of contributory negligence is appropriate. 238Section 9 of the Law Reform (Miscellaneous Provisions) Act 1965 requires that: "(1) If a person (the claimant ) suffers damage as the result partly of the claimant's failure to take reasonable care ( contributory negligence ) and partly of the wrong of any other person: (a) ... (b) the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage." 239This requires the Court to engage in an exercise of determining what is just and equitable in the circumstances, necessarily the making of an evaluative judgment, where the Court engages in: "... a comparison both of culpability, that is, of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage..." Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 at [10]; (1985) 59 ALJR 492. 240It is an exercise of proportion, balance and relative emphasis. 241On the one hand, as I have held, there was a defective seatbelt in the truck. It ought not to have been there. It could have been replaced easily. On the other hand, the plaintiff knew that there was a defect from time to time and knew that the seatbelt had not been replaced. He should have, but did not, take care to ensure adequate clearance and hence avoid a collision with the bridge. 242In all of the circumstances it seems to me that a proper and fair apportionment to the plaintiff for his contributory negligence is 35 per cent.

Elysium No. 20 Pty Ltd 243As I have referred to earlier, the plaintiff was employed by Elysium No. 20 Pty Ltd at the time of the accident. 244The defendants submit that by reason of the provisions of s 151Z(2) of the Workers Compensation Act 1987, a contribution by Elysium as the plaintiff's employer ought be notionally calculated and an appropriate deduction be made. 245The parties have agreed, and I accept that I should find, that the notional contribution of Elysium is 15 per cent. That agreement relieves the Court of the obligation to embark on a consideration of the extent to which, if at all, Elysium contributed to the plaintiff's injuries and disabilities.

DAMAGES 246In the accident, the plaintiff, having struck his head, sustained an injury to his cervical spine. He did not sustain any other injury. 247He complained of cervical neck pain with tingling down into his hands when attended to by the ambulance at the scene of the accident. 248He then attended Campbelltown Hospital and Liverpool Hospital. 249There was a complicating factor in the treatment of the plaintiff because prior to this collision, in 2004, the plaintiff underwent a liver transplant under the care of Professor Geoffrey McCaughan of the Liver Transplant Unit at Royal Prince Alfred Hospital, in Sydney. Naturally, the plaintiff was concerned about whether the accident had affected this transplant. 250Subsequently, the plaintiff was referred with respect to his spinal injuries, by the neurosurgery registrar at the Royal Prince Alfred Hospital, who had undertaken a review of the plaintiff at the request of the Liver Transplant Unit, to Dr Martin McGee-Collett, a specialist neurosurgeon, for ongoing care and treatment for injuries arising out of the motor vehicle accident. 251In the following review of the plaintiff's injuries and disabilities, it is convenient to recount the history by reference to the written reports of the various medical practitioners. It is convenient to do so for at least three reasons: (a)the accounts in the reports were taken by the parties to be accurate records of the history given and results of the examinations undertaken; and (b)there was no cross-examination of the plaintiff with respect to the accuracy or otherwise of any of the contents of the reports; and (c)none of the doctors were required for cross-examination about their opinions or their reports. 252Dr McGee-Collett saw the plaintiff for the first occasion on 5 February 2007. He concluded, at that time, that the plaintiff had suffered a spinal cord injury and that the plaintiff required further investigations in order to establish the appropriate course of treatment. 253On 12 February 2007, Dr McGee-Collett obtained the benefit of CT scans. He remarked in his report of that date to the plaintiff's general practitioner, Dr Raymond Morsingh, this: "The recent CT scan shows marked disc degeneration at C5/6 with a satisfactory lordosis apart from mild anterior subluxation of C4 on C5. All things considered the best surgical approach would be posterior decompression of the spinal cord augmented by posterolateral internal fixation and bone grafting. ... [Mr Tarres] understands that the surgery is not expected to relieve his sensory symptoms and the reasonable goal is to stabilise the situation and to prevent deterioration. He also understands that he is not expected to return to work as a truck driver. He is satisfied to proceed and I shall make the necessary arrangements once he is cleared as fit for surgery by Professor Geoff McCaughan." 254The plaintiff was seen by Dr Paul Clouston, a specialist neurologist, on 26 February 2007, at the request of the relevant workers compensation insurer. He says: "Immediately following the accident he experienced limb paraesthesia and temporary paralysis, but was able to recover and walk with assistance, and initially was transferred to Liverpool Hospital. He stayed in Liverpool Hospital for three days. Since the injury he has been troubled by persisting neck pain, severe paraesthesia in both arms, left more than the right, exacerbated by neck movements for instance turning his head in a particular direction or bending it forwards. He also has clumsiness and weakness of his hands, left worse than right, and urinary urgency. He reports no problems with his legs. He says his walking is normal. 255Dr Clouston undertook an examination and also viewed the recent imaging of the plaintiff's neck. He concluded his report with this impression: "This man has a significant subacute spinal cord compression relating to the motor vehicle accident. It is probable that he had an asymptomatic narrow cervical canal to begin with, and the trauma of the accident has caused a symptomatic spinal cord compression. An operation is urgently required both to stabilise his level of function, and hopefully (although not guaranteed) to improve it. He is at risk of catastrophic deterioration should any further cervical injury occur." 256On 21 March 2007, at Royal Prince Alfred Hospital, Dr McGee-Collett undertook cervical laminectomies, bone grafts and internal fixation. 257On 10 May 2007, Dr McGee-Collett reviewed the plaintiff and noted that the hand dysaesthesia persisted. He expressed this conclusion: "I reassured Mr Tarres that the neck pain should ease but that his neck would be stiff due to the internal fixation and bone grafting. ... Hopefully he will be able to discontinue opiate analgesics and he knows to taper their use over the next month or so. As advised prior to surgery he will not be fit to resume physically demanding work such as truck driving. Hopefully he will be fit for less physically demanding work at some point in the future, particularly if he pursues retraining." 258At that stage, Dr McGee-Collett thought that the plaintiff would be able to tolerate two or three days retraining or re-education each week. I do not take this to be a conclusion that the plaintiff was by then fit for part-time work. 259By July 2007, Dr McGee-Collett thought that the plaintiff would be fit to resume work for one day per week doing only light duties, such as office work. 260On 19 November 2007, Dr McGee-Collett was able to provide a comprehensive report about the plaintiff. He reported then that he thought that the injury sustained by the plaintiff, and the mechanism causing it, as were described to him, were consistent with each other. He also thought it was consistent with what he found at operation. 261He concluded his report with this opinion: "At the time of last review Mr Tarres' condition was stable. There had been slow improvement with regard to the severity of neck pain and he had been referred to a Pain Specialist for that problem and also any help that could be given for the disagreeable sensory disturbance in his hands resulting from the spinal cord injury. The overall prognosis is guarded to fair. I expect that subsequent radiology will confirm satisfactory incorporation of the bone grafts without delayed complication. His neck pain should settle to a tolerable level but his neck will remain stiff from the internal fixation and bone grafting. The sensory disturbance in his hands will be permanent." 262On 27 February 2008, Dr Peter Conrad, a specialist surgeon, expressed the opinion, having examined Mr Tarres on 26 February 2008, that he had sustained: "... a very serious injury to his neck, which necessitated a decompression and spinal fusion operation of his neck. He has severe restriction of movement and restriction of movement of both shoulders." 263He said that in his opinion, Mr Tarres was unfit for work and would not be able to work at any time in the future. As well he said that he thought he needed 10-12 hours per week by way of home care assistance. He calculated that Mr Tarres had sustained a whole person impairment as a consequence of his injury in the motor accident of 36 per cent. This opinion is the most pessimistic of all about the plaintiff's work capacity. I do not accept this assessment, which differs markedly from the assessment of most of the doctors, and in particular, from those who have an ongoing role in treating the plaintiff. 264By April 2008, the position had been reached that Dr McGee-Collett thought that the recovery from the operation was stable, that no further improvement could be expected and Mr Tarres' ongoing pain was being managed by Dr Robert Adler, who was a pain management consultant. 265On 23 April 2008, Dr Robert Adler wrote to Dr Morsingh, this: "Mr Tarres reduced his consumption of Panadeine Forte from an average of 6 per day to 4 per day, I understand. He appears to be relatively active, still reading as he enjoys it, cooking and taking walks. He manages the shopping chores, although he has some difficulty and continues to drive." He then discusses an alteration to his regime of medication. 266In September 2008, at the request of the solicitors for Hobbs Bros, the plaintiff was seen by Dr John Matheson, a consultant neurosurgeon. He expressed the opinion that the plaintiff was unfit to drive a truck because of his very stiff neck, but that he thought that clerical type employment would be within his capacity. He considered that the plaintiff had 20 per cent whole person impairment as a consequence of the motor vehicle accident. He thought that the plaintiff needed about one hour per week of handyman assistance to manage matters around the house because of his disabilities. 267It is plain that Dr Matheson was concerned that some of the symptoms of which the plaintiff complained, were not justified by the extent of the injury which he sustained and the operation which he had undergone. He said: "His complaints are a little disproportionate to the pathology but he has definite neck pathology." 268In February 2009, the plaintiff was seen by Dr Manohar, a specialist anaesthetist, for the purpose of a medico-legal assessment and report. 269Dr Manohar recorded this of the plaintiff's activities: "He is currently under the care of Wendy Chan, pain management specialist, and his GP Dr Morsingh in Wentworthville. He is attending physiotherapy and acupuncture. He is able to perform self care duties except washing his hair. He is able to carry out some light cleaning duties and prepare meals in a graduated fashion. He attempted to attend a computer course at the local TAFE however could not cope with the extended periods of sitting required as this aggravated his neck pain. His current problems are his constant pain and his use of MS Contin and Panadeine Forte. ... I consider that it was reasonable that he was unable to assist with the domestic chores for the first year after the accident due to his physical incapacity and the use of MS Contin. He still has restrictions on repetitive neck movements, quick neck movements, reaching and overhead arm activities, and with heavy lifting or carrying. He requires on-going assistance with the chores that require those activities, especially gardens and lawn care. ... He is able to carry out only sedentary duties with the option of changing position frequently. His attempt to retrain was unsuccessful due to his inability to sustain a posture for a prolonged period. He has not had training for sedentary duties." 270In February 2009, the plaintiff was seen by Dr Ian Smith, an injury management consultant. Dr Smith obtained this history: "He has virtually no movement in his neck and has constant pain at the base of the neck which radiates across to the trapezoid ridge. He feels his neck sits slight forward and to maintain his balance when walking, he has to use a walking stick. Because of the limited movement, he has great difficulty going up and down stairs. He also can only drive for about fifteen minutes with difficulty. He has pain and symptoms in both arms but the left is substantially worse than the right. He gets quite a severe pain around the left elbow and the upper left forearm; he has constant tingling and burning in the left hand which gets worse if it is touched. He has a reduced range of movement in both shoulders and both elbows due to the pain and stiffness around his neck. The grip strength in both hands is markedly reduced. ... He does get upset and tearful over his current situation... He finds it difficulty walking more than fifty metres. He is very fidgety when he sits." 271Dr Smith concluded that Mr Tarres would not be able to work a full eight hours a day for one day a week. He said this: "Because of his limitation on travel, he would only be able to work relatively close to home for a limited number of hours, perhaps each day, with maximum flexibility in the time of day that he would work. The other option is to look at whether there is any possibility of some work from home so that he can then use pacing strategies to get through. Mr Tarres is clearly permanently unfit for his pre-injury duties and it is highly unlikely that he will ever become fit for full hours of any job. At most it is likely that he will become fit for perhaps three or four hours a day between three and five days a week." 272By March 2009, Dr Morsingh, the plaintiff's general practitioner, thought that the plaintiff had sustained a 38 per cent whole person impairment and that his mental state was one of being "constantly depressed ". 273The plaintiff went back to see Dr Matheson, the consultant neurosurgeon, at the request of the defendant on 10 September 2009. Dr Matheson seems to have continued to be unimpressed with the plaintiff. He said this: "He has had appropriate treatment for his advanced neck condition, nothing much has changed. The only thing that has changed is he seems to be extending his illness behaviour and is quite happy to retreat into a sickness role and not attempt to get himself going again. His responses to his treatment have been less than optimal." 274Having given a history of various reports that had come to hand, he then expressed this conclusion: "Basically, there is no disagreement concerning his medical condition, i.e. he had a degenerative neck condition which was aggravated in this motor vehicle accident. Everybody agrees that he has a residual disability and would have some trouble working, especially as he is aging, however it is my view that his disability is disproportionate to his known pathology and treatment, and that there is a degree of illness behaviour operating here." 275By 2010, Dr Morsingh had become even more pessimistic, opining in August 2010 that Mr Tarres would never be able to return to any form of employment and that he would not be able to perform many functions of personal care and domestic duties and that he would " ... eventually require assistance with bathing, shopping, cleaning the house, washing and laundry ". 276Mr Tarres was referred by Dr Morsingh to Dr Ishana Harrysunker, a special psychologist who first saw him in October 2010. Dr Harrysunker thought by that stage that Mr Tarres had developed moderate levels of depression and anxiety. He also reported that Mr Tarres was experiencing a severe level of stress. He provided treatment by way of weekly to fortnightly sessions of psychotherapy focussing on: Psychological counselling to help him cope with his grief issues following the end of his marriage; Cognitive Behaviour Therapy and Mindfulness Therapy to relieve depressed mood, stress and anxiety; and Chronic pain management using relaxation techniques. 277Dr Harrysunker did not express any prognosis. 278By December 2010, Dr Adler, the specialist in rehabilitation medicine, had provided a comprehensive report. 279He diagnosed chronic mechanical neck pain, which was related to the spinal surgery. He described the original injury in this way: "The neck pain is likely arising from the trauma associated with multi-level cervical disc fusion surgery and also can emanate from the cord damage. This represents a severe spinal injury and he was only a hair's breadth away from sustaining a quadriplegia. There are soft signs of C7, mainly sensory radiculopathy, in the left arm. The left arm pain is likely mixed somatic referred pain from the extensive surgical site, and neuropathic pain related to the cord injury." 280He expressed this view about Mr Tarres' capacity for work: "He has a partial capacity for sedentary employment, such as basic clerical work, which I would estimate up to four hours per day. Sitting for long periods would [pose] difficulty in sedentary jobs, as neck aggravation will likely then occur. He does, though, have little in the way of transferable skills to sedentary employment where clerical and administrative skills are usually required. It is difficult to envisage a job that he would be able to manage to do, given his low educational level, largely unskilled job background and lack of transferable skills to any sedentary employment, combined with his age. There would be remote opportunity of his gaining any employment." 281Dr Adler did not think that Mr Tarres required any further surgical intervention although he thought he would be best managed in the future by some surveillance by a pain management clinician. 282He said this of Mr Tarres' capacity for domestic chores: "It would be reasonable for Mr Tarres to be assisted with domestic chores, if he were to be responsible for these and I would assess three hours per week for the heavier house chores. I would consider it unreasonable for him to manage the vacuum cleaning, cleaning of bathrooms, or windows, as examples of tasks beyond his abilities. Were he to need to maintain a garden, home maintenance assistance would be reasonable. Although he might be able to manage some of these tasks at times, I consider his overall efficiency to be quite impaired by the degree of neck and left pain related disability." 283A further report tendered at the hearing was dated 4 February 2011, and was written by Associate Professor Buzzard who described himself a senior consultant surgeon. Associate Professor Buzzard noted in the history given to him that the plaintiff was living alone in a house near Blacktown. He did his own housework and spent his days reading and doing a small amount of gardening. He recorded this: "I did note that he was using a walking stick. This has been since the neck operation. He chose to use a walking stick himself. That is because he feels 'I am being pushed down because of the weight of my neck; it helps stabilise me...'. He uses it constantly. He said he also uses it because 'when I've got the walking stick it creates an awareness in people'. He said 'If I didn't have it, and I went to church and somebody pats me on the back, I would fall to the floor ...'. " 284There was some further medical evidence provided by the defendants. Dr Seamus Dalton thought that the central problem with Mr Tarres when he saw him in late 2009, was a Chronic Pain Disorder. He assessed Mr Tarres as having 25 per cent whole person impairment, although he thought about half of that impairment was due to the underlying degenerative condition. 285In March 2010, the applicant was assessed by Ms Sue Barbuto, an occupational therapist. 286Ms Barbuto reported that although there had been significant difficulty in undertaking the assessment, that there was a need for assistance by way of attendant care from the time of the accident up until when she saw the plaintiff, and that there would be a need for future attendant care and domestic assistance. 287Ms Barbuto concluded that by the time of her assessment, Mr Tarres was substantially independent regarding personal care but required occasional assistance with hair washing and drying himself. 288With respect to domestic assistance, she recorded this: "Since Mr Tarres and his wife have separated I gather that he has performed the routine domestic tasks of loading and unloading the dishwasher, cooking, laundry, ironing as needed, making and changing his bed linen (the latter with difficulty), small amounts of shopping and occasional other tasks such as putting out garbage. Mr Tarres described the need to pace himself and alter his work methods to avoid significant exacerbations of pain. As Mr Tarres indicated that he is in pain twenty-four hours per day, he needs to work around his pain experience." 289She recommended that two hours per week by way of domestic assistance was necessary in order to assist Mr Tarres living alone with the heavier of the relevant domestic tasks. She expressed the view that he would require some assistance in due course with shopping, that he would require a contractor to undertake lawn mowing and home maintenance tasks.

Agreement of the parties 290The parties agreed on a number of matters relating to damages. They were: (a)the plaintiff's future life expectancy would end at 74 years of age; (b)the proper and reasonable sum to be allowed for past care and domestic assistance is $35,000; (c)the proper and reasonable sum to be allowed for future care and domestic assistance is $135,000; (d)past out of pocket expenses amounted to $75,500; (e)the plaintiff's whole person impairment was assessed under the Motor Accidents Compensation Act 1999 ("MAC Act") as greater than 10 per cent; (f)the plaintiff's most likely future circumstances, pursuant to s 126(1) of the MAC Act are that but for the injury, he would have continued to work as a truck driver for Hobbs Bros Pty Ltd or some other trucking company, earning $775 net per week from the date of the accident, up to the present and into the future. Note the award of damages for economic loss based on this finding is dependant upon further findings as to how long the plaintiff would have worked but for the injury and the plaintiff's residual earning capacity; (g)if any separate award is to be entered in relation to equipment, the cost of future equipment is $600; and (h)the amount to be awarded pursuant to the principles contained in the decision in Fox v Wood [1981] HCA 41; (1981) 148 CLR 438, is $11,786. 291The heads of damage which remained in dispute were: (a)non-economic loss; (b)future medical treatment expenses; (c)past economic loss; and (d)future economic loss. 292I note that the effect of the concessions of the defendants, that the plaintiff exceeds the threshold of 10 per cent whole person impairment required under the MAC Act, means that the plaintiff has an entitlement to damages for non-economic loss.

ONGOING DISABILITY OF THE PLAINTIFF 293The contest between the parties essentially related to the extent to which the plaintiff continued to be troubled by symptoms which related to his motor vehicle accident. 294In short the defendant submitted that the plaintiff was manifestly exaggerating the extent of his disabilities. 295As well this raised issues surrounding the plaintiff's residual capacity for work. 296It is necessary to examine the plaintiff's evidence together with evidence tendered by the defendant which tended to cast doubt upon the veracity and accuracy of the plaintiff's evidence.

The evidence of Mr Tarres 297The evidence-in-chief of Mr Tarres was largely given by statement (Exhibit A). A careful reading of that statement insofar as it dealt with damages suggests that the plaintiff has been most significantly affected by the neck injury. The description of the effects of the neck pain on him, which the plaintiff gives in his statement, suggests this: (a)he is presently taking eight Panadeine Forte tablets on a daily basis, and occasionally using MS Contin, a very strong analgesic, for pain relief; (b)the medication regime is necessary to enable him to function at all; (c)even with medication, the plaintiff is in severe pain at all times. The effect of the pain is that he has to carefully monitor his activities, undertake the more strenuous ones in short periods of time, and his pain is aggravated by undertaking any such activities; (d)in addition to neck pain, he suffers headaches on a regular basis which last for some days, requiring him to retire to bed; (e)generally speaking, colder months of the year are worse than warmer months of the year; and (f)he requires domestic assistance in order to survive at home. 298In addition to this description of his physical injuries and disabilities, the plaintiff describes " ... significant psychological trauma as a result of my injuries ". He says that he has become socially isolated, he is unable to work, go for a run, ride a bike or escape the continual pain that he is suffering. He said he had become very depressed, had suicidal thoughts and lacked any self-worth. He gave evidence that in his view, within six months of the accident, his relationship with his wife deteriorated to a point where it became obvious during 2009 that their relationship would not continue. 299His oral evidence-in-chief was largely to a similar effect. He said that he had been unable to find work and that his pain and other symptoms, and his difficulties and restrictions in his daily activities described in the statement, continued up to the time he gave evidence. 300A different picture emerged in cross-examination, which has led me to doubt the truthfulness and accuracy of the plaintiff's evidence about the extent of his symptoms. 301In cross-examination, the plaintiff initially asserted that he was in pain 24 hours a day whilst ever he had been conscious. 302He complained that he was unable to sit for any lengthy period of time and that when driving, he had real difficulties and it was painful. 303I gained the clear impression from the plaintiff's evidence that he was able to do very little activity, he was essentially constantly in pain and that even when the pain was relieved by medication, he continued to have real difficulty. 304The defendant showed a film, which was taken on 25 February 2011. That film showed that for a period of over an hour, starting at about 2.30pm, the plaintiff gave a driving lesson to a young woman who was his wife's sister's daughter. A careful observation of the film does not suggest that Mr Tarres had any of the difficulty about which he had given evidence. On the contrary, it appeared to me that he was able to move his head and neck about whilst sitting in the passenger's seat gesticulating in an attempt demonstrate his instructions to the learner driver. He was also able to remain seated, without apparent pain or discomfort for the whole of the lesson. 305At the conclusion of the lesson, the plaintiff then refuelled the motor vehicle being driven. It was suggested to him that it did not appear that he had an difficulty in: "... sitting in the passenger's seat gesticulating as required and obviously turning your head towards the instruments, the roadway, the mirrors, looking down at the kerb, looking forward as you gesticulated to her what to do." (T79.33) 306The plaintiff answered that although he was able to turn his body, he was not turning his head and that he was still in a lot of pain. He said: "It doesn't look like I'm in pain, but I am still in pain. I still got to live." 307My observation of the film did not accord with the plaintiff's answers to which I have just referred. I had the clear impression that he was capable of turning his head, albeit it with a little difficulty. He did not appear in pain and his level of activity did not reflect that he was in pain. 308As well, the defendants showed a number of other video films of the plaintiff's activities on different days, and at different times during the day. From these videos, I obtained a distinct impression that: (a)The plaintiff's evidence that he was constantly in pain, even if he had taken medication, was not correct. In the videos shown in Court, there were no obvious indications that the plaintiff was in any pain; (b)he had the capacity to undertake a reasonable range of activities, which he denied to some doctors, and in his evidence that he could do; and (c)at the times when he was observed, in particular when interacting and conversing with others, he does not appear to be obviously depressed or unable to show appropriate emotional response. 309I do not accept the plaintiff's answers that he gave with respect to how he was feeling during the course of this driving lesson, nor do I accept his evidence about the type and duration of his pain more generally. 310He agreed that he had given four or five driving lessons to the learner driver in question during 2001, and that the others had been both longer and shorter than the approximately one hour period during which he was filmed. 311It was put to the plaintiff as a result of what was demonstrated in the film, that there was nothing to stop him from giving driving lessons during ordinary business hours. He responded that if he was in pain he did not think he would be able to. It was put to him that there was nothing to stop him working part-time as a driving instructor. He asserted that there were potential problems with this type of employment, but agreed he had never tried to get a job as a driving instructor. 312I do not accept the plaintiff's evidence that he is unfit to work part-time as a driving instructor. The medical reports and opinions to which I have referred above (other than that of Dr Conrad, which I do not accept) suggest that the plaintiff would have a capacity for part-time work for a number of hours on a number of days of each week. The film that was tendered demonstrates that that capacity includes being a driving instructor. The plaintiff's history suggests that he was an expert driver and accordingly, would be sufficiently skilled to undertake that task. 313I am not persuaded that he is unfit to be a part-time driving instructor, on the contrary I am persuaded that he is fit to undertake some part-time work, including work a driving instructor. 314The medical opinions, which I accept, do not suggest that he is fit to do that or any other job, five days per week, eight hours a day. Indeed that proposition was not put to the plaintiff, nor advanced in final submissions by the defendants. 315In cross-examination, the plaintiff agreed that through the relevant workers compensation insurer he had been referred to a rehabilitation provider called "Konekt Australia Pty Ltd". That organisation arranged a work trial for him. He agreed that he made no effort to attend the work trial. He agreed that the organisation had suggested that he might attempt employment in a range of occupations such as a transport allocator, dispatch supervisor, transport coordinator, office manager and similar occupations. He agreed he had made no effort to obtain any work of that kind. 316He agreed he was able to attend and undertake tertiary studies at Macquarie University, attempting to obtain an Arts degree. As at the date of hearing he was a little less than quarter of the way through that degree. 317In summary, I formed the distinct impression from observing the plaintiff giving his evidence, closely attending to the medical opinions and observing carefully the various video films that were tendered about him, that he was overstating the extent of his pain and disability. 318Whilst I am satisfied that the plaintiff sustained the injury of which he complained, and had surgery which has stabilised his condition and provided some relief to which I have referred above, and whilst I am satisfied that the plaintiff continues to have a degree of pain and disability associated with his neck injury, I am not satisfied that it is as bad as he sought to make out. I am not satisfied that he is completely unfit for work. 319In my opinion, he is fit to work for the equivalent of one day a week, although it may be necessary for that to be spread over more than one day. 320A question arises as to when Mr Tarres was first in the position to exercise this residual earning capacity. Dr McGee-Collett thought that he had this capacity by July 2009. Dr Manohar thought that by February 2009 had had some capacity for part time work. In February 2009 Dr Smith though that he would become fit at some point in the future. By September 2009, on my impression of Dr Matheson's opinion, the plaintiff had some residual capacity for work. 321Applying an impressionistic approach and allowing some time (notionally) for the plaintiff to obtain employment, I am satisfied that he had a reliable residual work capacity from 1 January 2010. Until then, I am satisfied that he was unfit to work.

Non-Economic Loss 322Section 131 of the MAC Act provides that there needs to be a greater than 10 per cent impairment of the whole person. As I have recorded above, the defendants have accepted that the plaintiff has, at least, that degree of whole person impairment. The defendant accepted, thereby, that Mr Tarres was entitled to an award for non-economic loss, assuming that liability was established. 323The assessment of non-economic loss under the MAC Act mirrors the assessment that would have been made at common law, subject to the imposition of a ceiling, which presently is $450,000. 324Unlike the proportionality approach to non-economic loss in the Civil Liability Act 2002, the provisions of Part 5.3, and in particular ss 131 and 134 of the MAC Act do not require such an approach. 325Once the relevant threshold is passed, as it is in this case, then the Court is to assess damages for non-economic loss without any statutory restraint: see Hodgson v Crane [2002] NSWCA 276; (2002) 55 NSWLR 199 at [39] per Heydon JA. 326An award of general damages (non-economic loss for damages caused by motor vehicle accidents) is intended to compensate a plaintiff for the pain and suffering through which they have gone and will continue to go through, for the loss of the amenity of their life through which they have gone and through which they will go, and for the loss of enjoyment of the life which they had and which they cannot now continue to have. It is designed to compensate for all of those individual things, often too numerous to list, which fall within these general descriptions. 327I take all of the matters into account to which I have earlier made reference with respect to the impact that this accident has had on Mr Tarres. I note in particular that he has suffered from a degree on ongoing pain and the psychological condition of depression. He was obviously a person who enjoyed driving heavy motor vehicles and is now no longer able to do so. However, on the other hand, although he is in pain from time to time, he is still able to care for himself to a very great extent, he is mobile and able to walk and drive, albeit with some difficulty on some occasions. He retains his full intellectual capacity. 328For all of these matters, for non-economic loss, I assess $200,000 as being the appropriate and reasonable sum for Mr Tarres.

Past economic loss 329It was agreed between the parties, as I have recorded above, that the plaintiff would most likely have earned $775 net per week from the date of the accident, up to the date of judgment and into the future, as a truck driver for Hobbs Bros. The issue is, particularly having regard to his other complex medical conditions, how long he would have continued to drive a heavy vehicle. 330It is now a little over four and a half years since the accident. The plaintiff, who was born on 5 April 1954, is now aged 57. I do not doubt that he would have worked as a truck driver from the time of the accident in 2007 until now, and into the future. The totality of the evidence satisfies me that the plaintiff is unfit to work again as a truck driver, which occupation he had followed for many years. 331As I have earlier found, until 1 January 2010, I am satisfied that the plaintiff was unfit to return to any form of occupation. 332Since the beginning for 2010, on the totality of the evidence, I think that the plaintiff has retained a residual capacity for work. This is a capacity for work in a wide range of jobs that would be readily available in Sydney, but the plaintiff has made no effort to obtain any such work. 333In determining the residual earning capacity of Mr Tarres, I have done so by reference to his individual characterisation in the labour market: Nominal Defendant v Livaja [2011] NSWCA 121 at [65]. 334Because he lives in Sydney, it can be expected that there is a ready availability of jobs of the kind suitable to him. I am satisfied that his residual capacity is one which could be readily exercised. 335My assessment of his residual earning capacity is that he would be fit to work one out of the five days that he would otherwise have worked. I assess his residual earning capacity as being 20 per cent of his economic capacity, which was being fully exercised at the time of the accident. 336Accordingly, his economic loss to date is tempered by the fact that he could have, and in my finding would have, been able to obtain employment from January 2010. The fact that he made no effort to obtain any employment does not seem to me to impact upon an assessment of his residual earning capacity. 337The parties can calculate the precise figures for his past economic loss. Future economic loss 338As for the future, in accordance with s 126(1) of the MAC Act, and the parties' agreement, I am satisfied that the plaintiff's most likely future circumstances are that, but for the injury, he would have continued to work as a truck driver for Hobbs Bros Pty Ltd or some other similar trucking company, earning $775 net per week. 339The next question is for how long it is likely that the plaintiff would have worked, given his particular circumstances and his other illnesses and disabilities. I think it likely that the plaintiff would have worked to age 65 as a truck driver and thereafter retired. I will proceed with the assessment of future economic loss upon that basis. 340The relevant steps to be addressed when applying s 126 of the MAC Act were considered by the NSW Court of Appeal in Kallouf v Middis [2008] NSWCA 61 at [7] where McColl JA and Hall J said: "Section 126 is in the same terms as s 13 of the Civil Liability Act 2002. The provisions of the two sections have been considered by this Court on a number of occasions: Macarthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145; (2004) 41 MVR 235; Penrith City Council v Parkes [2004] NSWCA 201; Nominal Defendant v Lane [2004] NSWCA 405. The principles established by those cases as to the application of s 126 have been summarised by P A Leslie and M M G Britts, Motor Vehicle Law in New South Wales, 4th ed (1993) (at [13.7792]) as follows: (a) assess the 'most likely' of the possible future economic circumstances facing the claimant but for the accident (including type of employment, duration of employment and remuneration); (b) assess the claimant's economic prospects as a consequence of the accident; (c) compensate the claimant for the difference between (a) and (b), including, where appropriate, through the use of a buffer; (d) adjust (c) by an appropriate percentage (including, where appropriate, by 0%) for vicissitudes, to reflect the possibility that the claimant may not have achieved (a) even had the accident not occurred; and (e) include a statement of the assumptions made as to the claimant's most likely future circumstances and the appropriate percentage adjustment." 341The first step required by this approach is to assess the most likely of the possible future circumstances facing the plaintiff. As I have said, the parties have agreed on this and I adopt their agreement and make a finding accordingly. 342In other words, Mr Tarres would have continued to work as a truck driver for Hobbs Bros Pty Ltd or some other similar trucking company earning $775 net per week, until the age of 65. 343I next have to assess the present residual earning capacity of the plaintiff, or alternatively as it is put in Khallouf , the claimant's economic prospects. In my opinion, as I have held above with respect to the past, the plaintiff is capable of doing one day a week of work. It may be necessary for this to be spread over a number of days, but in total I assess his residual capacity as amounting to 20 per cent or one-fifth of his pre-accident capacity. 344Accordingly, the plaintiff will be entitled to a sum that reflects the net present value (on the 5 per cent tables) of 80 per cent of $775 net per week, until the age of 65. 345I am required by s 126 of the MAC Act to adjust this monetary value of lost earning capacity by an appropriate percentage for the vicissitudes of life. 346There is always a risk that Mr Tarres would not have been able to work through to age 65. Perhaps his current condition and illnesses may have interfered. Perhaps he may have been otherwise unable to continue his work, there may have been periods of time when he was not in full-time employment because contracts were not available, or there may have been other adverse vicissitudes resulting in his not working through to age 65. I would assess the likelihood of him working through to age 65 as being 85 per cent. In other words, I would deduct the conventional 15 per cent for vicissitudes. 347There was no claim made for superannuation with respect to his future economic loss and, accordingly, I make no allowance for that. 348The parties should calculate the proper sum for the plaintiff's future economic loss based upon these remarks.

Future treatment expenses 349The plaintiff claims the sum of $38,526.91 by way of future treatment expenses, in addition to the agreed sum of $600 for future equipment. 350The plaintiff's claim is based upon the need for the plaintiff to regularly consult his general practitioner about every six weeks, ongoing medication costs, annual neurosurgical review and psychological treatment. 351The defendants concede that the plaintiff has a need to remain under the care of a general practitioner for the future and that he will incur medication costs. Applying a relatively broad-brush approach, the defendants submit that the sum of $15,000 would be more than adequate. 352There is not a great deal of difference between what the defendants admit the plaintiff is entitled to and what the plaintiff claims. The real difference seems to be the amount of money which either party allowed, for each medical treatment, or attendance. 353Having regard to the unchallenged evidence of Dr Morsingh, the plaintiff's general practitioner, in this area, I am satisfied that I should adopt the sums of money which he includes in his written report. 354In addition the plaintiff claims psychological treatment because he sees Dr Harrysunker every couple of months for therapy for his depression. I am not satisfied that the need for psychological care is as great as the plaintiff claims. Accordingly, I think a figure a little less than that claimed by the plaintiff because of a deduction for the unnecessary extent of psychological treatment, would result in a sum of $30,000, including $600 for equipment being allowed for future treatment expenses. I regard this as a fair and reasonable sum and I will allow it.

Summary 355In summary, the awards for damages are as follows: Non-economic loss $200,000 Past out of pocket expenses $75,500 Past domestic and attendant care $35,000 Past economic loss To be calculated by the parties Future medical treatment expenses $30,000 Future attendant and domestic care $135,000 Future economic loss To be calculated by the parties 356There will be a verdict and judgment for the plaintiff in a sum which will need to be calculated to take account of: (a)the outstanding sums for past and future economic loss; (b)the application of a deduction of 35 per cent for contributory negligence; and (c)any necessary adjustment to account for the apportionment (notionally) of the fault of Elysium of 15 per cent. 357The parties did not make any submissions as to costs, and will have an opportunity so to do. I should indicate that my preliminary view which is, subject to receipt of submissions, that as the plaintiff has succeeded, the defendants should pay the plaintiff's costs.

Orders 358I make the following orders: (1)Judgment for the plaintiff. (2)On or before 4pm 6 December 2011, the parties are to file electronically with my Associate and serve: (a)proposed short minutes of order, including any order for costs; (b)any evidence necessary to support the proposed orders; (c)an outline of submissions which they wish to make in support of their proposed short minutes of order. (3)Adjourn the proceedings until 9.30am Friday 9 December 2011 for argument and final orders.

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. Decision last updated: 25 November 2011