Wills v Bell [2001] QSC 444

TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - plaintiff was a passenger in his own car - defendant was driving when vehicle collided with bridge pylon - both parties intoxicated at time of accident - plaintiff sustained serious injuries

TORTS - NEGLIGENCE - INJURIES TO PASSENGERS - plaintiff sustained serious head injuries

TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - whether plaintiff guilty of contributory negligence - whether plaintiff knew the defendant's ability to drive was impaired by alcohol

TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - whether plaintiff guilty of contributory negligence - whether need to decide whether to travel with defendant if defendant was intoxicated was reasonably foreseeable to plaintiff - whether plaintiff disabled himself by excess consumption of alcohol so as to be incapable of appreciating the condition of defendant

TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - whether plaintiff was wearing a properly adjusted and fastened seatbelt - evaluation of evidence

TORTS NEGLIGENCE - MISCELLANEOUS DEFENCES - joint illegal enterprise - driving contrary to Traffic Act 1949 and Motor Vehicles Insurance Regulations 1968 - whether illegality of such a kind as to negate duty of care owed by defendant to plaintiff - where illegality arises from infringement of statutory provisions designed to promote safety

TORTS - NEGLIGENCE - MISCELLANEOUS DEFENCES - volenti non fit injuria - whether plaintiff had a full appreciation of the risks involved in being driven by defendant - whether full acceptance of risks by plaintiff

TORTS - NEGLIGENCE - STATUTES, REGULATIONS - ADMISSIBILITY AND EFFECT IN ACTIONS FOR NEGLIGENCE - whether reg 17 of Motor Vehicle Insurance Regulations 1968 enables defendant by election to recover from plaintiff any award of damages - reg 17 dependant on breach of reg 13(2)(b) - whether defence can show that plaintiff breached reg 13(2)(b)

TORTS - THE LAW OF TORTS GENERALLY - JOINT OR SEVERAL TORTFEASORS - LIABILITY OF THIRD PARTIES - where third parties are hotel and hotelier - duties owed by third parties to the plaintiff in contract and in tort - whether third parties in breach of duties

TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES - ASSESSMENT OF DAMAGES - GENERALLY - appropriate quantum of damages

Liquor Act 1992

Cole v Lawrence [2001] NSWSC 92; (2001) 33 MVR 159

Cook v Cook [1986] HCA 73; (1986) 162 CLR 376

Desmond v Cullen [2001] NSWCA 238

Evans v Accident Insurance Mutual Holdings Limited [1998] 2 QdR 350

FAI General Insurance Co Ltd v Green (unreported_,_ Davies and McPherson JJA and Ambrose J, 19 April 1996)

Gala v Preston [1991] HCA 18; (1991) 172 CLR 243

Goode v Thompson (unreported, Ambrose J, 2 July 2001)

Green v Discombe (unreported, Derrington J, 19 April 1995)

Hedge v Trenerry (unreported, Davies and McPherson JJA and Demack J, 7 November 1997)

Johns v Cosgrove (1997) 27 MVR 110

McPherson v Whitfield [1996] 1 QdR 474

Nominal Defendant v Saunders (1988) 8 MVR 209

Roggenkamp v Bennett [1950] HCA 23; (1950) 80 CLR 292

Trenerry v Hedge (unreported_,_ Shepherdson J 14 May 1996)

Winterton v Mercantile Mutual Insurance (Australia) Ltd [2000] QCA 249

JJ Clifford QC and MJ Liddy for the defendant by election

[1] MULLINS J: On Saturday, 5 February 1994, the plaintiff was a passenger in his Toyota Landcruiser registered number 543-BYK which was being driven by the defendant when the vehicle collided with the concrete post on the railing of the Gap Creek Bridge on the Capricorn Highway approximately 16 kilometres west of Anakie in the State of Queensland and approximately 168 kilometres from Jericho. The defendant was subsequently convicted of driving under the influence of liquor, as the breathalyser test administered subsequent to the accident showed a blood alcohol concentration ("BAC") of 0.23%. The plaintiff claims damages for negligence, as a result of the personal injury suffered by the plaintiff in the accident.

[2] The plaintiff was born on 10 April 1958 and was therefore 35 years at the date of the accident. His parents were the owners of a cattle and sheep property near Aramac. He was educated to grade 10 and then worked as a jackeroo on the family property and other properties for several years after leaving school.

[3] He then commenced employment as a plant operator, operating a wide range of large plant and heavy equipment including draglines, bulldozers, graders, loaders and backhoes. He worked at a variety of mine and construction sites throughout Queensland. By 1980 he had purchased his own grader and was operating as a contractor. He travelled extensively overseas during 1988 and 1989.

[4] The plaintiff commenced employment as a plant operator with South Blackwater Coal Limited on 23 October 1989. He was still employed at South Blackwater at the mine at the date of the accident.

[5] The plaintiff has never married, although he lived in a relationship with a woman who had two children at Blackwater for approximately 2 years until the end of 1991.

[6] Prior to the accident, the plaintiff was described as friendly and outgoing and having a good personality and a lot of friends, although reference is made to his having a tendency to be short tempered. He had a good memory, spoke clearly and was physically fit. He did a lot of reading and participated in many outdoor activities.

[7] The plaintiff's claim is defended by the defendant by election which is the insurer under the policy of insurance that was in force in respect of the plaintiff's vehicle at the date of the accident pursuant to the provisions of the Motor Vehicles Insurance Act 1936. It is not in issue that the defendant was an insured person within the meaning of that term in that Act.

[8] The defences raised by the defendant by election primarily arise out of the allegation that in the 24 hours immediately preceding the accident the plaintiff and the defendant had consumed massive amounts of alcohol. For most of that period the plaintiff and the defendant were at the Jordan Valley Hotel ("the hotel") in Jericho. It is alleged that the driving of the Toyoto vehicle by the defendant was an illegal act contrary to s 16(1) of the Traffic Act 1949 and reg 13(2)(a) of the Motor Vehicles Insurance Regulations 1968 ("the Regulations"), the plaintiff was party to and jointly responsible for such illegality and the act of the plaintiff in permitting the defendant to drive was itself illegal. The defendant by election therefore alleges that the defendant owed no duty of care to the plaintiff. An alternative defence is that if the defendant did owe the plaintiff a duty, it was to drive as a reasonable person who had been drinking to excess and the defendant did not breach such duty of care.

[9] The defendant by election also raises the defence of volenti non fit injuria. Alternatively, the defendant by election claims that the plaintiff was guilty of contributory negligence arising out of permitting the defendant to drive his motor vehicle when the plaintiff knew that the defendant was so under the influence of alcohol, that his capacity to drive the vehicle was impaired. The defendant by election also bases the plea of contributory negligence on the allegation that the plaintiff so disabled himself by the consumption of liquor, so as to be incapable of fully understanding and appreciating the condition of the defendant. Another basis on which the defendant claims that the plaintiff was guilty of contributory negligence is the allegation that the plaintiff was failing to wear, properly adjusted and securely fastened, the seatbelt fitted to the seat occupied by the plaintiff in the vehicle at the time of the accident.

[10] If the plaintiff is successful in any degree in obtaining an award of damages against the defendant by election, the defendant by election relies on reg 17 of the Regulations to enable the defendant by election to recover from the plaintiff the amount of any damages awarded to the plaintiff. This is on the basis that there was default by the plaintiff under the statutory insurance policy which would have allowed the defendant by election to avoid the policy and that default contributed in a material degree to the circumstances in which the defendant by election became liable to pay the damages to the plaintiff. The defendant by election therefore claims to be entitled to set off against any award of damages in favour of the plaintiff the amount of that award.

[11] The first third party was the licensee of and carried on the business of the hotel which included employing the staff of the hotel. The second third party was one of the directors of the first third party and the nominee of the first third party for the purposes of the Liquor Act 1992.

[12] On the afternoon of Thursday, 3 February 1994, the plaintiff and the defendant registered as guests of the hotel. It is alleged that, in breach of the terms of the contract which existed between the first third party and the plaintiff and the defendant as guests of the hotel or the duties that were owed by the third parties and the employees of the first third party to the plaintiff and the defendant as guests of the hotel or the statutory duties, the third parties and the employees of the first third party supplied alcohol to the plaintiff and the defendant at the hotel on 5 February 1994 in circumstances where the plaintiff and the defendant were grossly and unduly intoxicated, it was known that the plaintiff and defendant were intending to drive a motor vehicle from Jericho to Blackwater, it was known that the plaintiff and the defendant were likely to do harm to themselves or each other and to do so breached s 156(1) of the Liquor Act 1992.

[13] The third parties are defending the claims made against them on the basis that they did not know, and there were no circumstances whereby they ought to have known, that the plaintiff and the defendant would drive a vehicle after leaving the bar on the Saturday, drive such a vehicle after having consumed further alcohol or intend to act otherwise than as they had indicated, namely retiring to their room for a sleep and staying the night.

[14] At the commencement of the trial I made orders that the third parties be bound by the judgment between the plaintiff and the defendant by election in the principal proceeding, that evidence in the principal proceeding be evidence in the third party proceeding, and that evidence in the third party proceeding be evidence in the principal proceeding.

[15] The defendant by election also relies on reg 17 of the Regulations to seek a declaration against the defendant that upon payment by the defendant by election of any sum in satisfaction of any judgment which the plaintiff may obtain against the defendant by election, the defendant by election is entitled to recover from the defendant, as a debt due and owing but unpaid, that sum so paid by the defendant by election and for judgment against the defendant for the said sum.

[16] The plaintiff was able to give evidence himself. Of his family members, his mother (Mrs Fay Wills), his sister (Miss Madonna Wills) and one of his brothers (Mr Damien Wills) gave evidence.

[17] Witnesses who gave evidence of the plaintiff's work history and habits prior to the accident were Damien Wills; plant manager Ronald Eastdown who had engaged the plaintiff in the late 1970's in Mt Isa in respect of servicing and repairing trucks, bulldozers and other heavy plant and equipment; Raymond Coyne who was the open cut superintendent at the South Blackwater coal mine during the plaintiff's employment at the mine; and Raymond Daly who was the plaintiff's neighbour at Blackwater for about two years until the end of 1992, and who also worked at the South Blackwater mine. Barry Stephen Hamilton who was the paymaster at the South Blackwater mine at the date of the accident and who remains the paymaster provided copies of group certificates for another employee at the mine post accident to assist in determining the plaintiff's post accident earnings and earning potential.

[18] There was evidence from witnesses who had some knowledge of the activities of the plaintiff and the defendant in the two days preceding the accident. A friend of the plaintiff, Mr Sydney de Landelles, gave evidence of drinking with the plaintiff (and to a lesser extent the defendant) at the hotel for about 2 to 2½ hours in the middle of the day of 5 February 1994. The defendant was called by the defendant by election. Senior Constable David Pearce who attended the accident and took the defendant to Emerald for a breathalyser test gave evidence. The second third party (Mr Stone) was able to give evidence of his observations of the plaintiff and the defendant at the hotel. His wife, Mrs Stone, who also worked at the hotel had some limited recall of observing the plaintiff and the defendant. The defendant by election called private investigator Mr Denis Arndt to give evidence of the statement which he took from Mr Stone which was not subsequently signed by Mr Stone.

[19] The defendant by election called Mr Norman Morris who was the first motorist to arrive at the scene of the accident. The third party called Ms Eileen Calway Pridham, who was one of the ambulance officers who attended the accident.

[20] There were a number of witnesses who have been involved in or gave evidence relating to the care of the plaintiff since the accident: Mrs Jennifer Devry who has been the plaintiff's primary case worker through Blue Care for the last 2 years; Miss Pamela Ellem who was a rural family support worker and involved in providing support for the plaintiff and his family during 1995 when the plaintiff was residing at a hostel in Emerald; Mr Jon Campbell who is the regional manager of Blue Care for the central Queensland/Wide Bay region and who had provided information to the plaintiff's solicitors on the cost of care given to the plaintiff by Blue Care; and solicitor Mr Timothy Carberry who is a senior legal officer in the Department of Families who produced the Department's Disability Program Manual published in September 1995 which applies to the services provided to the plaintiff by Blue Care under the scheme called Project 300.

[21] Medical evidence was called from occupational therapist Lesley Stephenson; neurologist Dr John Corbett; the former director of the Head Injury Unit of the Princess Alexandra Hospital Dr Paul Hopkins; Dr Shirley Jorgensen who was the plaintiff's treating doctor when he was an in-patient at the Baillie Henderson Hospital; psychologist Michelle Moore who did an assessment of the plaintiff's intellectual ability in November 1996; Dr Ewan McPhee who had applied a plaster on 1 February 1994 to the plaintiff's fractured left scaphoid bone; orthopaedic surgeon Dr David Morgan who had assessed the plaintiff for medico-legal purposes on 30 March 1995; psychiatrist Dr Donald Grant who had assessed the plaintiff for medico-legal purposes on 19 May 1997; Dr Keith Adam who was called by the defendant by election and who is a medical practitioner who specialises in occupational medicine; and Dr John Evans who is a general medical practitioner at Emerald who conducted a medical on the plaintiff on 10 October 1989 to enable the plaintiff to work at the South Blackwater coal mine and who was the plaintiff's treating doctor in 1992 and 1993. A number of medical reports and records were admitted into evidence without the relevant authors being called.

[22] The defendant by election called Dr Brian Purssey, a senior lecturer in clinical surgery, who had provided two reports. In the first report (Exhibit 40) he dealt with the likely alcohol level of the defendant at the time the plaintiff and the defendant departed from Jericho on the day of the accident and the possible indicia of that alcohol level and whether the plaintiff would have suffered the injuries which he did sustain had he been wearing a seatbelt at the time of the accident. Dr Purssey's second report (Exhibit 41) was prepared on the basis that at the time of the accident, the plaintiff was wearing a seatbelt, but was slumped across the console. The plaintiff called engineer Dr Duncan Gilmore on the issue of whether the plaintiff was wearing a seatbelt.

[23] The plaintiff has no recollection of the events immediately preceding the accident or the accident. Because of the disabilities with which the plaintiff has been left as a result of the accident, I place little weight on the accuracy of historical information conveyed by the plaintiff in his oral evidence. The plaintiff clearly displayed the intellectual deficits which were described by other witnesses.

[24] The defendant is a critical witness, when it comes to making findings in relation to the events leading up to the accident and the accident. I have reservations about the defendant's evidence. It was apparent from many of the answers which he gave that he had little accurate recollection of the events on the day of the accident and those immediately preceding the accident. I formed the impression that he gave many answers, because he was deducing what had happened, rather than being able to recall what had happened.

[25] The defendant's lack of recollection can be illustrated by reference to the answers he gave, when being questioned as to why he and the plaintiff left Jericho in the afternoon of 5 February 1994:

Do you know when that decision was made?--No, not really, no.

Was it made in the bar at the hotel before going to the mate's place in the afternoon?-- No, I don't think so.

Was it made at the mate's place?-- In the course of the afternoon, I suppose.

Or was it a decision that when you got back to the hotel after the mate's place you said, `Oh, you know, come on, let's go. Why stay?'? You don't recall?-- No, not really, no.

You don't recall whether it was you who initiated that or whether it was Mr Wills who initiated that trip to get home that night?-- Well, must have made the decision - the decision must have been made between the two of us. He's too big to chuck in the car.

But I was asking you who initiated that talk. Was it you who said, `Come on, let's go', or was it Tim who said, `Come on, let's get out of here.'?-- I don't recall.

There was a similar lack of recall when the defendant was cross-examined on why his gear had remained in the room at the hotel until the plaintiff and the defendant departed:

"Isn't it the case that if you weren't staying the night you would have packed your gear earlier in the morning and vacated the room?-- Maybe we weren't going to leave. Maybe we were. Who knows?"

[26] Another example of the defendant's lack of recall is his evidence about the time the plaintiff and he departed Jericho. The defendant had provided his solicitor with a statement dated 1 December 1997 which became Exhibit 48. In that statement the defendant fixed the time of departure from Jericho at about 4pm to 4.30pm. In examination-in-chief when asked when they left Jericho, the defendant stated: "Around about 4, going by the time of the accident". When asked in cross-examination as to what time he thought they left Jericho, Mr Bell replied "I don't know, probably about 4 o'clock". The following exchange then took place:

"How confident are you that you left Jericho at about 4 o'clock?-- Not really.

You might have left there at 5 o'clock, 5.30?-- Could have done, yes.

What about two hours then, would you have left Jericho about half past five?-- Could have done, yeah."

[27] As confirmed by Dr Purssey's evidence, it is consistent with the defendant's BAC at 9.29pm on 5 February 1994, that the accuracy and reliability of his memory of the events leading up to the accident was severely impaired, as a result of the consumption of alcohol prior to the accident.

[28] I am therefore cautious about accepting any evidence of the defendant on critical events which is not in some respect supported by other evidence. Where there is disparity in the evidence of the defendant with that of Mr and Mrs Stone, I will act on the evidence of Mr and Mrs Stone. Mr Stone presented as a straightforward witness. The defendant by election introduced into evidence the statement which Mr Arndt handwrote after interviewing Mr Stone in about September 1995. Mr Arndt had produced a typewritten statement which contained differences from the handwritten statement. The typewritten statement was forwarded to Mr Stone to check and sign, but he never did that. Mr Stone stated, and I accept, that he did not sign that statement, because it did not accord with his recollection of what had occurred. To the extent that Mrs Stone's limited involvement and recollection allowed her to give relevant evidence, I found her credible.

[29] The plaintiff had fractured his left scaphoid bone on Boxing Day 1993. The plaintiff had returned to work after that injury on 29 December 1993. The plaintiff went on sick leave on 31 January 1994. The injury to the scaphoid bone was not healing well and the plaintiff consulted Dr Evans on 1 February 1994. He applied a fibreglass plaster cast which immobilised the thumb, but left the fingers free to move. The plaster cast extended to the plaintiff's elbow.

[30] The plaintiff was interested in purchasing a rural property called "Winooka" near Jericho. He had raised with the defendant the possibility of going into a partnership with the defendant to purchase the property, with the defendant and his family to live on the property and manage, while the plaintiff remained employed at the mine. The purpose of the trip to Jericho on 3 February 1994 was to enable the plaintiff and the defendant to inspect the property.

[31] On Thursday 3 February 1994 the plaintiff and the defendant met at Emerald. They had a number of appointments in Emerald relating to the proposed venture. They visited QIDC, an accountant, solicitors and a motor dealer. They left Emerald mid afternoon in the plaintiff's Landcruiser which was a 1993 model which had been acquired by the plaintiff in June 1993. Although there was some evidence that the plaster on the plaintiff's left arm would have made it difficult for him to drive, I find that the plaintiff was able to drive his vehicle, despite the plaster, and did so when he and the defendant left Emerald. The plaintiff and the defendant arrived at the hotel in the early evening.

[32] It is the case of the third parties that the plaintiff and the defendant booked and paid for a room at the hotel for 3 nights when they arrived on 3 February 1994. Mr Stone states that his practice was to require for accommodation to be paid in advance at the time of booking, unless there was a government work order or the like for the accommodation. Although Mr Stone is not certain that he was the one who took the booking from the plaintiff and the defendant, it was likely to have been him and he had a recollection that they had said to him that they were to be staying 3 nights. The fact that the belongings of the plaintiff and the defendant remained in their room at the hotel, until they departed late in the afternoon of 5 February 1994, is also consistent with an intention on their part to stay that night at the hotel. As the defendant's evidence to the effect that he paid for the accommodation when he and the plaintiff departed the hotel on Saturday was clearly based on a deduction on his part that he would have paid for the accommodation when he left, I find that the plaintiff and the defendant paid for 3 nights' accommodation when they arrived at the hotel on Thursday.

[33] Mr Stone recalls that on two occasions during their stay at the hotel, the plaintiff and the defendant purchased beer to take away. Mr Stone recalls that at some stage the plaintiff and the defendant visited Mr Arthur Cox who lived on a property outside Jericho and was a friend of the plaintiff. I find that one of the purchases of takeaway beer was for the visit to Mr Cox. Mr Stone was not sure, but thought it was possible, that the visit to Mr Cox took place on the Thursday night.

[34] On Friday 4 February 1994 the plaintiff and the defendant spent most of the day looking over the property "Winooka". They returned to the hotel around 8pm. They had dinner at the hotel and drank beer in the bar until midnight when the bar closed. The defendant drank Fourex Gold beer with an alcohol strength of 3.5% and the plaintiff drank what was described as "heavy" beer with an alcohol strength of 4.9%. After the bar closed, the plaintiff and the defendant went to a house warming party for some employees of the hotel at a house near the hotel and continued drinking. They took beer which they purchased from the hotel to this party.

[35] The plaintiff and the defendant remained at the party until about 4.30am on Saturday, when they returned to the hotel. They slept for a few hours. It is not clear when they arose. The defendant stated that he got up on that Saturday about 8 or 9 o'clock, but that the plaintiff was still in bed. The defendant stated that he had breakfast, but if he did, it was not at the hotel which did not serve breakfast. Mr Stone recalls seeing both the plaintiff and the defendant in the late morning, when the bar was open. The plaintiff and the defendant commenced drinking beer. Mr Stone recalls that they showed some effects of a night out drinking alcohol, but there was nothing unusual about them. Mrs Stone thought they looked tired and that they had a rough night, but that it did not stand out that they were really drunk. Mr Stone describes their drinking in the bar on Saturday as "steady" - something like 3 or 4 pots per hour.

[36] Mr De Landelles who lives at Jericho recalled seeing the plaintiff standing outside the hotel on Saturday 5 February 1994 somewhere near midday. Mr De Landelles was driving past the hotel, took his vehicle home and then walked back to the hotel, met the plaintiff and the defendant in the bar and had a drink with them. He states they were drinking beer and that he spent about 2 to 2 ½ hours drinking with them. He states that when he arrived the plaintiff and the defendant "weren't slurring in their speech, or anything, and they were steady when they were walking to the toilet". He recalled that at some stage the conversation was about a football match at a place about 4 hours away at which the defendant's son was playing that the defendant wanted to go to. Mr De Landelles recalls that the plaintiff said to him that he was going to book in for another night and that the plaintiff tried to talk Mr Bell into staying. Mr Stone also recalls hearing a discussion involving the plaintiff and the defendant about a football match, when they were drinking in the bar on Saturday. Mr Stone's recollection was that the defendant's son was playing in one of the matches at Tieri, there was a discussion about the plaintiff and the defendant going to it during which the plaintiff stated that he did not want to go to it, and they decided that they were staying. Mr De Landelles believes he left the bar by 2pm or 2.30pm and that the plaintiff and the defendant remained in the bar.

[37] Mr De Landelles describes the condition of the plaintiff and the defendant when he left the bar as "still reasonably good" and that "they wouldn't have been sober and they weren't very drunk". He did not observe either of the plaintiff or the defendant conducting himself in a way consistent with being intoxicated.

[38] The defendant stated that he and the plaintiff left the bar mid-afternoon, about 1pm or 2pm and they went around to the place of a friend whom the plaintiff knew and had a few beers around there. The defendant recalled that they were driven in somebody's vehicle to this friend's place, but cannot remember who drove them or the name of the friend whose place they visited. When the defendant was asked whether it may have been Mr Arthur Cox, he answered "It could have been. I don't remember."

[39] No other witness was called who could identify the person visited by the plaintiff and the defendant on the afternoon of 5 February 1994.

[40] Mr Stone recalls that the defendant left the bar about lunchtime saying he was going to have a sleep and that about an hour or so later that the plaintiff left to do the same. Mrs Stone could also recall seeing the plaintiff and the defendant in the bar, when they were drinking on that Saturday about 11am or 12 noon, when one of them said that he was going to have a sleep and that the other stayed on for about half an hour or an hour and also left. After the plaintiff and the defendant left the bar in the afternoon of the Saturday, neither Mr or Mrs Stone saw either of them again.

[41] Mr Stone did not consider that the plaintiff and the defendant were "overly intoxicated" when they left the bar. He states:

"Obviously they had some, you know - I knew they had been drinking but not to say that I would have stopped serving them or had any reason to, you know, caution them or anything like that."

Mr Stone concedes that they would have been over the limit to drive, but states they were not exhibiting any of the signs published by the relevant government department as behavioural signs of intoxication (Exhibit 54). Mr Stone could not recall any difference in condition between the plaintiff and the defendant. I accept Mr Stone's evidence.

[42] Although the evidence of all witnesses relevant to the times at which the plaintiff and the defendant departed the bar on Saturday vary, it is apparent that by some time in the early afternoon both the defendant and the plaintiff had departed from the bar. Mr and Mrs Stone assumed that they departed, in order to sleep, because of what they had heard the plaintiff and the defendant saying about doing so. A visit by the plaintiff and the defendant to a friend's place after they had left the bar is also consistent with their leaving the bar. I find that after the plaintiff and the defendant left the bar on Saturday afternoon, they went to a friend's place and continued drinking alcohol.

[43] In the light of Mr De Landelles' evidence to the effect that the plaintiff intended staying another night at the hotel when they were drinking together in the middle of the day on Saturday, and the evidence of Mr and Mrs Stone relating to the announced intention of each of the plaintiff and the defendant that he was going to have a sleep when he left the bar in the early afternoon, I find that there was no intention of the plaintiff at the time he left the bar on Saturday to return to Blackwater or otherwise travel in his vehicle on that day.

[44] According to the defendant, after the plaintiff and the defendant returned from visiting the plaintiff's friend's place, they went back to the hotel. He stated that they possibly went to the bar to have a couple of beers, grab their gear and paid the bill and went. There can be no doubt that the plaintiff and the defendant departed the hotel late in the afternoon of the Saturday. Mrs Stone gave evidence that she had never packed a guest's gear. I find that the plaintiff and the defendant packed their own gear and, as there was no bill to pay, they simply departed the hotel without returning to the bar. I accept the evidence of Mr and Mrs Stone that they had no idea that the plaintiff and the defendant had departed, until one of their customers told them of hearing about the accident later in the evening.

[45] In the absence of any clear evidence as to why the plaintiff and the defendant departed the hotel late on the Saturday afternoon, it is not possible to make a finding as to which of them was responsible for the decision to travel.

[46] Based on the time of 7.30pm at which the accident has been estimated as occurring and the evidence that it would have taken 1 ½ hours to 2 hours to drive from Jericho to the Gap Creek Bridge, I find that the plaintiff and the defendant departed the hotel to return to Blackwater around 5.30pm.

[47] According to the defendant, the plaintiff and the defendant took turns in driving on the trip back to Blackwater from Jericho. Apart from comfort stops and/or to change who was driving, the defendant states that the plaintiff and the defendant did not stop to visit any place or person on the return trip. The defendant states that, when changing positions in the vehicle, each of them walked around the vehicle. When the defendant gave his evidence-in-chief, he stated that he had taken over the driving of the vehicle a little time before the accident happened and that "I got up the road a bit and I lost the cigarettes and bent down to pick them up and run into a bridge". Immediately after the accident, the defendant had reported to Senior Constable Pearce that he was driving the vehicle at 80 kms per hour when the accident occurred.

[48] In evidence-in-chief, the defendant explained why he had taken over the driving as follows:

"And how did you come to be driving it then?-- Well, Tim was driving us, but he wasn't making a real good fist of it and we worked it out together I might be a bit better driver than he was.

What did he say; can you remember?-- `I better have a go.'

You both got out and swapped sides?-- That's correct.

What was Tim doing after you took over the driving?-- Laid on the seat beside me and went to sleep.

Can you just describe, first of all, whether he put his seat belt on?-- He had his seat belt on.

And after he had got his seat belt on what did you do in terms of going to sleep?-- He fell down on the seat beside me on the console.

Is that the centre console between the front seats?-- That's correct.

And what about his chest, where was it in relation to the sash part of the seat belt?-- The sash part was still up on the top and he was out of that part of it.

But he still had on the lap part of it?-- That's correct.

And when he put his head on the centre console what did you do?-- He kept on moving over towards me. I just sort of nudged him out of the road, said, `Give me a bit more room.'

You were obviously handling the steering wheel. How close was he getting to the steering wheel when he was leaning over like that?-- He wasn't actually. He was only just where my elbow was touching him; that's all.

Was that his position at the time you hit the bridge pylon?-- I'd say so, yeah."

[49] Mr Douglas QC on behalf of the plaintiff cross-examined the defendant in respect of the statement in Exhibit 48 that, immediately before the accident, the plaintiff was going to sleep again, so that the defendant took over the driving and the plaintiff had a sleep:

"You've told people before that Mr Wills fell asleep at the wheel on this trip, haven't you?-- Not as in nod - nod right off, but wandering off the road.

Falling asleep at the wheel?-- Not as in head down on the wheel, but -----

Haven't you told people before that about 10, 15 minutes before the accident Tim was driving, but kept going to sleep and was running off the road?-- That's correct, yeah.

And that happened two or three times?-- Couple of times probably, yeah.

And did you then take over the driving?-- That's right."

[50] Photographs of the plaintiff's vehicle taken after the accident show the extensive damage to the front passenger side of the vehicle where it collided with the concrete post on the bridge. After the impact, the vehicle spun to the right and came to a stop on the bridge across the road perpendicular to the path in which the vehicle had been travelling prior to the collision, with the front of the vehicle facing the railing to which the concrete post had been attached. The near side front of the vehicle had been pushed back and was intruding into the passenger's space of the front seat passenger.

[51] The defendant was conscious after the accident and recalls observing that the plaintiff was breathing, as if he was not getting a proper breath. The defendant states "so I picked him up - sat him up in the seat and held his head up". The defendant states that the plaintiff still had the seatbelt on at the time of the accident, as the defendant states that he saw the plaintiff in the seatbelt after the accident. The defendant states that he could not get the plaintiff out of the car, because the left-hand side of the vehicle was smashed in. The plaintiff remained trapped in the vehicle. The defendant was able to get out of the car and it was not very long before Mr Morris stopped. The defendant sustained a broken arm and a broken sternum in the accident.

[52] Mr Morris went and looked at the vehicle and looked at the plaintiff through the window. He states "I didn't see a seat belt on the passenger at the time". He observed that the plaintiff was crouched or leaning forward. When it was suggested to Mr Morris in cross-examination that he did not remember whether the passenger had a seatbelt on or not, he responded "No, he wasn't wearing one". Mr Morris went to ring for the ambulance from a house that was up the road.

[53] The ambulance report which is included in Dr Gilmore's report (Exhibit 38) shows that the call for the ambulance was received at 8.06pm and that the ambulance arrived on the scene at 8.37pm. Ms Calway Pridham recalls attending to the plaintiff whilst he was within the vehicle. She does not recall whether or not the plaintiff was wearing a seatbelt at that time. She does recall observing a brown glass bottle and some broken glass on the floor near the plaintiff's feet in the vehicle. She describes the brown glass bottle as either being a beer bottle or a ginger beer bottle and about a stubby size. The bottle was empty.

[54] The ambulance report describes the plaintiff's state as unconscious. The ambulance report includes a diagram of a human figure with markings to show where injuries were observed. Ms Calway Pridham recalls that she put the marks on the diagram to record the contusions, lacerations and abrasions that she had observed on the plaintiff's body and that, as far as she can recall, she accurately recorded her observations. That diagram records contusions on the front of the left shoulder area and contusions on the front about waist level, slightly to the right of the centre of the body.

[55] Senior Constable Pearce dealt with the defendant at the accident scene from 8.43pm. In response to Senior Constable Pearce's question whether he had been drinking, the defendant replied "Yeah, mate I've had a few". When asked when his last drink was, the defendant said "Jericho, mate". Senior Constable Pearce asked the defendant how many drinks he had, to which the defendant replied "Oh, mate, don't know. We were just coming back from Aramac. I was looking at a property". Senior Constable Pearce administered a road side breath test and because the reading was 0.245, he immediately conveyed the defendant to Emerald for the purpose of undergoing a breath analysis. Senior Constable Pearce states that he could smell alcohol on the defendant's breath and could recall some slurring of words by the defendant at the accident scene. He states that the defendant dozed on and off during the journey to Emerald.

[56] The defendant subsequently pleaded guilty and was convicted of driving the vehicle whilst under the influence of liquor or a drug. The certificate of conviction is Exhibit 47.

[57] On the basis of the BAC of 0.23% at 9.29pm, Dr Purssey did calculations of what the defendant's BAC was likely to have been at the time of the accident and at the time of leaving Jericho. Dr Purssey's experience in respect of the effect of alcohol on the human body and its affect on the ability to drive dates from the late 1960's, when he was an assistant Government Medical Officer and had involvement with the introduction of the breathalyser into Queensland. Dr Purssey's report (Exhibit 40) deals with the rate of absorption and elimination of alcohol from the human body. His expert evidence in this area was not challenged. Dr Purssey stated that the maximum BAC following the last alcoholic drink is reached after a varying period of time with a mean in the vicinity of 45 minutes, following which it begins to fall. Dr Purssey also stated that where a person has been drinking alcohol over an extended period of time, the BAC at the time of the last drink could be the maximum. Dr Purssey described how alcohol is eliminated at a variable rate from person to person, the mean rate being in the vicinity of 0.02% per hour. Dr Purssey referred to investigations which showed that the BAC of the average Australian adult male rises by approximately 0.01% for each 200mls of full strength Australian beer.

[58] It was submitted on behalf of the third parties that the plaintiff and the defendant drank beer on the trip home from Jericho, because of Ms Calway Pridham's evidence. Her evidence is equally consistent, however, with bottles being left in the vehicle after one of the trips such as to Mr Cox while the plaintiff and the defendant were still at Jericho. I am not satisfied that the plaintiff and the defendant were drinking beer after leaving Jericho. On the basis that the defendant did not drink any further alcohol upon departing Jericho in the late afternoon of the day of the accident and that the defendant had his last drink at approximately 4.30pm, Dr Purssey calculated and I accept that the defendant's maximum BAC would have been around 0.31% at 5.30pm and around 0.27% at 7.30pm.

[59] No BAC analysis was done in relation to the plaintiff after the accident.

[60] Dr Purssey's first report sets out the effects of alcohol on the human body which are relevant to the ability to control a motor vehicle. These are disturbance of perception, reaction time, reaction and judgment, the apparent stimulant effect of alcohol and, to a lesser extent, disturbance of muscular control and balance and effects on the eyes. Dr Purssey referred to studies which showed that accident liability increases with increasing levels of blood alcohol which is estimated to be 30 to 50 times normal at a BAC of 0.15% and above. Dr Purssey stated that the effect of alcohol on the capacity to drive a vehicle when the BAC was at 0.15% or above was applicable whether one was an experienced or an inexperienced drinker.

[61] In view of the defendant's likely BAC at the time of the accident of around 0.27%, the defendant was excessively intoxicated and therefore affected by alcohol in the ways described by Dr Purssey. Although the defendant describes the accident as having occurred immediately after he bent down to pick his cigarettes up off the floor which is not an uncommon (even though, never safe) manoeuvre for the driver of a vehicle to perform, from the fact that the vehicle was immediately driven into the bridge post, I infer that the defendant's intoxication was causative of the defendant's undertaking this manoeuvre at the time at which he did. I reject the plaintiff's submission that no causative link can be shown between the drinking and the accident. The plaintiff submits that "Anybody rounding a curve at speed while looking for cigarettes in a car could cause such an accident". A driver who was not intoxicated would not choose that point in the journey when the vehicle was being driven towards the bridge to look for cigarettes on the floor of the vehicle.

[62] The plaintiff was taken by ambulance from the scene of the accident to Emerald District Hospital. He was transferred by air ambulance to the Rockhampton Base Hospital on 6 February 1994 where a CT scan was performed which showed diffuse cerebral injury and, more particularly, frontal lobe contusions. He had areas of pinpoint bleeding over his basal ganglia. Other injuries that were noted were three right posterior rib fractures for which an intercostal catheter was inserted. There is medical evidence that this suggests that there was a lung puncture causing a pneumothorax or that fluid collection developed. The plaintiff also had a fracture of his right acetabulum, a compound fracture of his left tibia and fibula and a closed fracture of his left ankle.

[63] The plaintiff was taken to theatre immediately for a compound scrub of his tibia and fibula fractures and internal fixation and internal fixation of his fractured ankle. An intracranial pressure monitor was also placed at that time. The acetabular fracture required no correction. A CT scan performed on 7 February 1994 showed infarction of the left frontal lobe with more compression of the anterior basal cisterns. Drugs were administered to control the intracranial pressure. By 9 February 1994 the drugs were no longer achieving control and the plaintiff was taken to theatre for a partial left frontal lobectomy where the contused brain tissue and some normal frontal lobe were removed. Following this, the plaintiff's intracranial pressure remained lower and amenable to control.

[64] A tracheostomy was performed on 11 February 1994. The photographs taken of the plaintiff while he was in Rockhampton Base Hospital which comprise Exhibit 12 show the tracheostomy tube. These photographs clearly shows some bruising in the right lower chest area, although it appears to be at a slightly higher level than the contusions noted on the diagram in the ambulance report. Two of the photographs also include two of the plaintiff's brothers who attended at the hospital until 13 February 1994. These photographs must have been taken no later than 13 February 1994. The plaintiff remained in a coma from the time he was admitted to Rockhampton Base Hospital until at least 2 weeks later.

[65] A PEG feeding tube was inserted on 2 March 1994 and the plaintiff was transferred to the ward for rehabilitation. On return to the ward, the plaintiff was flexing to stimulus and obeying commands at times and his eyes were opening spontaneously and occasionally fixating.

[66] By 8 March 1994 Mr Wills was following two step commands and responding to questions with pen and paper. The tracheostomy tube was removed on 12 March 1994 and the plaintiff began to take a normal diet orally. The plaintiff began speaking on 14 March 1994 and commenced mobilisation with physiotherapy on 16 March 1994.

[67] On 21 March 1994 the plaintiff was transferred from Rockhampton Base Hospital to the Princess Alexandra Hospital Head Injury Unit for rehabilitation.

[68] The PEG feeding tube was removed on 12 April 1994 and the plaintiff's diet became fully oral. A Herbert's screw and bone graft was performed on the left scaphoid on 20 April 1994. A urethral stricture developed secondary to insertion of an indwelling catheter. This was dealt with by a urethroscopy performed on 18 May 1994.

[69] The plaintiff was discharged from the Head Injury Unit on 17 June 1994. On discharge the plaintiff's problems arising from the accident were:

3. Mild spastic quadraparesis left worse than right

4. Fracture of left ankle with decreased range of movement

[70] The plaintiff returned to his parents' property at Aramac. Mrs Wills provided the full-time care that was required and drove him to Longreach for therapy. The plaintiff was required to return to Princess Alexandra Hospital for treatment periodically. He was having urinary tract operations nearly every two months.

[71] At some stage when the plaintiff and Mrs Wills were visiting Miss Wills, the plaintiff suffered a seizure which may have been epileptic which resulted in his being admitted temporarily to hospital in Toowoomba and medicated on an anti-convulsant.

[72] In November 1995 the plaintiff participated in a trial independent living assessment at the Princess Alexandra Hospital which showed that he was not capable of independent living. He then spent 3 weeks with his sister in Toowoomba.

[73] In December 1995 the plaintiff was placed in a serviced hostel in Emerald with considerable community support through a community organisation in terms of provision of meals, assistance with shopping and counselling. This placement broke down because of personality clashes between the plaintiff and staff and other residents.

[74] The plaintiff visited Princess Alexandra Hospital for further medical treatment, then returned home to his parents and after having some type of fainting turn which resulted in his admission to the Barcaldine Hospital, the plaintiff was placed in accommodation in Barcaldine with community support.

[75] The plaintiff was admitted to Penrose House at Baillie Henderson Hospital in Toowoomba on 14 October 1996 for treatment for post head injury behavioural problems. Soon after the plaintiff was admitted, he was placed in the secure unit for a period of about 7 weeks which the plaintiff found difficult. Apart from some periods of leave with family members, the plaintiff remained an inpatient until 9 April 1998. Miss Wills visited the plaintiff every second afternoon during the week and he stayed with her most weekends while at this hospital.

[76] On discharge from Baillie Henderson Hospital on 9 April 1998, the plaintiff returned to his parents' property for the Easter period. Arrangements had been made for him to commence living in Barcaldine. On 28 April 1998 the plaintiff commenced living in a Housing Commission house at Barcaldine with services provided by Blue Care under the Project 300 scheme which were the care arrangements that were still current at the time of the trial.

[77] The plaintiff was seen by urologist Dr Kenny P'ng in Rockhampton on 20 May 1998 who performed a visual internal urethrotomy to deal with the plaintiff's stricture problem. Dr P'ng taught the plaintiff self-balloon urethral dilatation to keep the stricture open in its new diameter. This process successfully addressed the stricture problem.

[78] Dr Corbett's description of the plaintiff's disabilities as a result of the head injury in his report dated 1 April 1995 is still applicable to the plaintiff's current condition:

"His principal residual disabilities as a result of his accident and head injury consist of impaired intellectual function. Specifically, he had impairment of memory and concentration, he is excessively distractible, his capacity to organise and plan is impaired, he has impaired insight, he tires excessively, he lacks energy and drive his frustration tolerance is low, he is readily angered and he expresses his anger in socially inappropriate ways and places. He also lacks `subtlety' in his conversation and demeanor, and this is likely to be the result of an overall coarsening of his personality. Altogether, his personality has changed significantly for the worse as a result of his head injury."

[79] The plaintiff has been left with weakness and spasticity of all his body, but particularly his left side. He is clumsy, coarse in his hand movements and poorly coordinated and has problems in coordination and performance of fine movements of his left upper limb. He exhibits paralysis of his left soft palate. He has lost the ability to cry. His speech is dysarthric and difficult to understand. The plaintiff speaks in a slow, nasal and monotonous tone which was quite noticeable when he gave evidence.

[80] Orthopaedic surgeon Dr David Morgan reviewed the plaintiff's orthopaedic injuries on 30 March 1995. Dr Morgan observed that the plaintiff was suffering from chondromalacia patellae syndrome and some incompetence of the anterior cruciate ligament in his left knee, combining to give rise to impairment of some 15% of the normal functional capacity of the left lower limb. Although the fractures of the left tibia and fibula healed, the plaintiff was still suffering from some discomfort in that area which Dr Morgan considered contributed an additional loss of 5% of the left lower limb function. Although the fractures of the left ankle had healed, the plaintiff was also left with ongoing discomfort and some restrictions in ranges of motion which Dr Morgan considered gave rise to a further loss of 15% of the lower left function, making a total loss of 35% of the lower left limb function. Dr Morgan expressed the opinion that the loss of function may improve in the future, but he was not asked to review the plaintiff again. According to Mrs Wills the pins in the plaintiff's left lower limb were removed in June 1996 at the Princess Alexandra Hospital. The loss of function in the left lower limb from the orthopaedic injuries is difficult to isolate from the left sided weakness which appears to be attributable to the brain injury.

[81] Psychiatrist Dr Donald Grant reviewed the plaintiff on 19 May 1997. Dr Grant assessed the plaintiff as having significant problems with memory, problems with concentration, dysarthria and major personality change. Mental status examination showed evidence of dysfunction in multiple areas of the brain, particularly temporal lobe and frontal lobe dysfunction. Dr Grant expected that most of the improvement post injury would have occurred by the time he assessed the plaintiff.

[82] Dr Hopkins treated the plaintiff at the Princess Alexandra Hospital during his rehabilitation period as an inpatient and then during the post hospital discharge period. He reviewed the plaintiff on 23 October 1998 for the purpose of a medico-legal report requested by the solicitors for the defendant by election. Dr Hopkins confirmed that the plaintiff's continuing problems were organic mental deterioration secondary to the traumatic brain injury with quite major post injury deficits in cognition and memory function and behaviour, multiple scarring, some left sided spastic weakness, spastic dysarthria and urethral stricture. Dr Hopkins noted that the plaintiff was also on anti-convulsant drugs for post traumatic epilepsy but the described turns were not typical of grand mal epilepsy and needed ongoing review. In relation to the requirements for future care of the plaintiff, Dr Hopkins stated:

"He is unemployable in any form of remunerative employment. He is not capable of independent or unsupervised living. He can safely be left for long periods of time during the day and also overnight. He does not require anything like minute by minute supervision. He is quite good at basic domestic tasks in a structured situation. He is independent in personal care. He does require reminding with his medication. He can't drive a motor vehicle and he can't manage his own shopping or provisioning. He needs direction in terms of his day to day living and community access. His cognitive and memory impairments are only partly the basis of his social dependency. It is particularly the organic personality change secondary to his brain damage that makes him such a handful in regards to living in the context of his family or in the community."

[83] Dr Hopkins described the plaintiff at being at the "severe outcome end" in terms of the spectrum of social disability from head injury. He considered that his personality change and behaviours are more dominant than the cognitive and memory impairments. He also considered that his disabilities would not improve, although the plaintiff would be likely to become more amotivational and apathetic with the passage of time and possibly less socially disruptive.

[84] From the evidence of Mrs Wills, Miss Wills and Mrs Devry, it is apparent that he needs supervision in his daily activities, particularly the organisation of them. The plaintiff lacks judgment about his own capabilities. He lacks judgment about spending money. Many anecdotes were related during the course of the trial of instances where the plaintiff had ordered goods which he did not require or could not afford. It is also apparent from the methods used by Mrs Devry to deal with the plaintiff on a daily basis that his behaviour is able to be controlled. Dr Corbett described the plaintiff as not being "beyond behavioural conditioning".

[85] The defendant by election submits that the plaintiff was injured during the course of a joint enterprise of the plaintiff and the defendant involving illegality of such a kind, that no duty of care was owed by the defendant to the plaintiff. The defendant relies on the principles found in the judgment of Mason CJ and Deane, Gaudron and McHugh JJ in Gala v Preston [1991] HCA 18; (1991) 172 CLR 243.

[86] The illegality which was pleaded by the defendant by election against the plaintiff was the driving of the vehicle contrary to s 16(1) of the Traffic Act 1949 and reg 13(2)(a) of the Regulations and that the plaintiff was party to and jointly responsible for such illegality or the act of the plaintiff in permitting the defendant to drive was illegal, as contrary to reg 13(2)(b) of the Regulations.

[87] During submissions it was also raised by the defendant by election that this was a case of dangerous driving by the defendant in contravention of s 328A of the Criminal Code to which the plaintiff was a party. The defendant was not charged with an offence under s 328A of the Code. The defendant by election had not pleaded its reliance on contravention of this provision. It is therefore not appropriate to consider the issue of illegality by reference to s 328A of the Code.

[88] In Gala v Preston the respondent suffered injuries when the motor vehicle in which he was a passenger veered off the road and struck a tree. It was being driven by the first appellant. At the time of the accident both the respondent and the first appellant were engaged in the unlawful use of the motor vehicle contrary to s 408A of the Code and each was subsequently convicted of that offence. The respondent and the first appellant and two others had been drinking alcohol for some 5 hours when they decided to steal a motor vehicle to travel north. The respondent drove the vehicle for some distance and then the first appellant took over the driving. Some 3 hours after they had commenced the journey, the accident occurred.

[89] There is an analysis in the joint judgment of earlier authority in respect of claims for negligence arising out of illegal activity. The conclusion was reached in the joint judgment that the joint criminal activity involving the theft of the motor vehicle and its illegal use in the course of a spontaneously planned joy ride gave rise to the only relevant relationship between the respondent and the first appellant. As that criminal activity was, of its nature, fraught with serious risks, it was not possible or feasible for the court to determine what was an appropriate standard of care to be expected of the first appellant as the driver of the vehicle. It was stated in the joint judgment that to conclude that the first appellant should have observed the ordinary standard of care to be expected of a competent driver would be to disregard the actual relationship between the parties, as a result of the joint criminal activity.

[90] Although the joint judgment refers to the consumption by the participants of massive amounts of alcohol for many hours prior to the accident which would have affected adversely the capacity of a driver to handle the motor vehicle competently, the joint criminal activity that was identified in that case was the theft and use of the motor vehicle, rather than the driving of the motor vehicle while the first appellant was affected by alcohol.

[91] It was explained in the following terms at 249-250 of the joint judgment how not every joint illegal enterprise negates a duty of care:

"But it would be wrong to regard the case as authority for the proposition that in all circumstances the participation of plaintiff and defendant in a joint illegal enterprise will negate the existence of a duty of care on the part of the defendant to the plaintiff, even when the alleged breach of duty arises in the execution of the criminal act. To take one example. The fact that a joint enterprise is carried on illegally in breach of safety regulations requiring a particular precaution to be taken should not preclude the existence of a relevant common law duty of care on the part of one participant to another unless circumstances of the parties' relationship, including the nature and incidents of the enterprise, are such as to make it unreasonable to fix a participant with a duty of care. There is no a priori reason why the illegality of a particular enterprise or activity should automatically negate the existence of a duty of care which might otherwise arise from the relationship which subsists between the parties, especially if it be accepted that the decision in Smith v. Jenkins does not rest on public policy."

"The majority reasoning in Progress and Properties and Jackson v. Harrison is inconsistent with the proposition that a defendant is under no duty of care whenever he or she is engaged with a plaintiff in the commission of a joint illegal enterprise and the alleged breach of duty arises in the execution of the criminal act. There are two strands to the majority reasoning. The first is that, in cases involving a joint illegal enterprise, it is necessary to examine the relation of the illegality to the negligence complained of with a view to ascertaining whether it is possible or feasible for the court to determine an appropriate standard of care. If it is impossible or not feasible to do so, no duty of care arises. The second is that, in cases of illegality arising from infringement of statutory provisions which are designed to promote safety, e.g., traffic laws and industrial safety regulations, there is no reason why illegality of that kind should negate the existence of a duty of care."

[93] The facts of this matter are easily distinguishable from those in Gala v Preston, such that this matter does not fall in the category of cases of joint illegal enterprise where it is neither possible nor feasible for the court to determine an appropriate standard of care to apply to allegedly negligent conduct committed during the joint illegal enterprise. This is a case of illegality arising from infringement of statutory provisions designed to promote safety, namely traffic laws about driving under the influence of alcohol, and laws to regulate the application of compulsory insurance arising out of the use of motor vehicles.

[94] The illegality associated with the defendant's conduct in driving the vehicle in breach of s 16(1) of the Traffic Act 1949 and reg 13(2) does not displace the duty of care on the part of the defendant as driver of the vehicle owed to the plaintiff as the passenger of the vehicle.

[95] The standard of care owed by the defendant to the plaintiff was that which could reasonably be expected of an experienced and competent driver: Cook v Cook [1986] HCA 73; (1986) 162 CLR 376, 383. There is no basis for imposing the lesser standard of care sought to be imposed by the defendant by election of that of a reasonable person who had been drinking alcohol to excess.

[96] The onus of establishing this defence lies with the defendant by election. It must be shown that the plaintiff had a full appreciation of the risks involved in being driven by the defendant and that there was full acceptance by the plaintiff of those risks: Roggenkamp v Bennett [1950] HCA 23; (1950) 80 CLR 292, 300, Suncorp Insurance & Finance v Blakeney (1993) 18 MVR 361, 364, McPherson v Whitfield at 480-481.

[97] Because of the lack of evidence about the plaintiff's degree of intoxication at the time the plaintiff and the defendant left Jericho, it is a matter of speculation or guesswork, as to whether the plaintiff had sufficient knowledge or appreciation of the degree to which the defendant was intoxicated, at the time the defendant took over the driving before the accident. I do not find the defendant's evidence about the plaintiff's state of intoxication of any assistance, because of the lack of reliability of the defendant's evidence about those events.

[98] The submissions made on behalf of the third parties in support of a finding that the defence of voluntary assumption of risk was made out took the approach that the time at which the issue of acceptance by the plaintiff of the risk should be considered should not be limited to that immediately prior to the accident. The third parties submit that during the day of and two days immediately prior to the accident the plaintiff and the defendant ventured on a course of reckless conduct, whereby the plaintiff took the risk upon himself, if the defendant drove the plaintiff's vehicle whilst grossly affected by alcohol.

[99] The assumption which underlies this submission that the drunken spree of the plaintiff and the defendant involved drinking and driving is not borne out by the evidence. The continual drinking commenced on the evening of the Friday. I have found that there was no plan by the plaintiff and the defendant to travel on the Saturday. There was not a course of reckless conduct commencing on the Friday evening involving drinking and driving. On the facts of this matter, whether the defence of voluntary assumption of risk is made out should be considered at the time the plaintiff and the defendant decided to leave Jericho.

[100] On the state of the evidence it is not possible for the defendant by election to discharge the onus which it bears, in order to establish the defence of voluntary assumption of risk.

[101] The defendant also bears the onus of proving the defence of contributory negligence.

[102] The first basis for the defendant by election's plea of contributory negligence that the plaintiff travelled with the defendant when he knew the defendant was so drunk that his capacity to drive the vehicle was impaired must fail for the same reason that the defence of voluntary assumption of risk fails. The knowledge of the plaintiff that is necessary to establish this basis of contributory negligence is not established on the evidence.

[103] The second basis of the defendant by election's plea of contributory negligence does not depend upon proof of the plaintiff's knowledge of the level of intoxication of the defendant. It depends on showing that the plaintiff disabled himself by the consumption of liquor, so as to be incapable of fully understanding and appreciating the condition of the defendant. That basis for contributory negligence was described by Macrossan CJ (with whom McPherson JA agreed and Lee J was in general agreement) in McPherson v Whitfield at 478 as:

"If a person should reasonably foresee that he may subsequently be confronted by the necessity to choose whether or not he will travel as a passenger in a car driven by an intoxicated driver, but nevertheless imprudently proceeds to drink to excess diminishing his capacity to discriminate and reducing his ability to make a reasonably careful decision when the occasion does arise, he may well not escape a finding of contributory negligence."

"... I agree with his Honour that there is no universal rule that self-induced intoxication must be excluded from the equation when deciding whether or not a passenger has acted in disregard for his own safety. To the contrary, it may well be of great significance if, at the relevant time, there was no appreciable risk that he would become a passenger in a vehicle with an intoxicated driver. ... I can see no social policy to be promoted by a rule the effect of which would be to compel a plaintiff to remain sober enough to independently assess a driver's condition when at all times during which his capacity to do so existed, no foreseeable risk of injury to himself arose. The issue as I see it is not whether the law should allow self-induced intoxication to be used as an `excuse' of some kind but rather whether the law should require a plaintiff to take precautions against a risk which, at the time when the choice is to be made whether or not to take those precautions, is not foreseeable."

[104] A similar approach was followed by Miles and Spender JJ in Nominal Defendant v Saunders (1988) 8 MVR 209, 216.

[105] I was referred to the observations of Hulme J in Cole v Lawrence [2001] NSWSC 92; (2001) 33 MVR 159 at paras [75]-[81] in respect of the passage quoted above from the judgment of Macrossan CJ in McPherson v Whitfield. Hulme J stated:

"[76] Secondly, while I accept that there is the distinction adverted to by Macrossan CJ between someone who becomes intoxicated when there is no `reasonably foreseeable specific risk to his safety' and someone who becomes intoxicated when there is such a risk, I am by no means disposed to regard the former situation as one where there is not likely to be contributory negligence. Indeed I do not read the judgment of the Chief Justice as going so far but the submissions in this case did, or come close.

[77] Whatever risks may exist or be apparent, circumstances not infrequently change, even within a short time. While I appreciate the test is one of reasonableness, not perfection, it seems to me that to render oneself significantly less capable of dealing with whatever may occur - perhaps due to the conduct of others perhaps to the loss of one's own self control - is to take a significant risk of no significant utility."

The facts of the case before Hulme J involved a plaintiff who became drunk at a football club, left by foot and was struck by a vehicle. The case did not involve a person who was drinking who then became a passenger in a car driven by an intoxicated driver. The distinction made by Macrossan CJ between a person who should reasonably foresee that he may need to make a decision about whether or not to travel as a passenger in a car driven by an intoxicated driver and a person for whom it is not reasonably foreseeable that that decision will need to be made was not relevant on the facts in Cole v Lawrence, but is apposite to this matter.

[106] In view of my finding that at the time the plaintiff left the bar of the hotel in the early afternoon of the day of the accident, he had no intention of returning to Blackwater or otherwise travelling in his vehicle on that day, the defendant by election cannot show that the plaintiff's voluntary intoxication occurred in circumstances where it was foreseeable that he would be placing himself in a position where he would have to make a decision about whether or not to travel as a passenger with the defendant when the defendant was in a state of intoxication.

[107] The third basis relied on by the defendant by election to raise contributory negligence is that the plaintiff was failing to wear his seatbelt, properly adjusted and securely fastened. This requires analysis of all the relevant evidence on this aspect.

[108] I have set out above the evidence of the defendant and Mr Morris relating to whether the plaintiff was wearing a seatbelt. The other evidence on this issue came from Dr Gilmore and Dr Purssey.

[109] Although it is apparent from Dr Purssey's first report that Dr Purssey prepared the report on the basis of an assumption that the plaintiff was not wearing a seatbelt at the time of the accident, it became clear from Dr Purssey's oral evidence that he had concluded that it was extremely unlikely that the plaintiff was restrained at the time of the accident. Although for the purpose of Dr Purssey's second report, he was asked to assume that the plaintiff was slumped over the console which he treated as meaning either slumped over the centre console or slumped forward over the dash and also asked to assume that the seatbelt was fastened, Dr Purssey concluded that the actual injuries were not consistent with the wearing of a seatbelt in this manner.

[110] Dr Gilmore's report and evidence was primarily responsive to those reports of Dr Purssey. Dr Gilmore concluded that the severe nature of the injuries suffered by the plaintiff could have been expected in this collision, under conditions of passenger compartment intrusion with the plaintiff's sitting upright in the seat initially and wearing the seatbelt correctly.

[111] The difficulty in comparing the respective evidence of Drs Purssey and Gilmore is that they have approached the issue of whether or not the plaintiff was restrained by a seatbelt from their respective disciplines of medicine and mechanical engineering.

[112] It is apparent from the photographs taken of the plaintiff's vehicle after the accident and the fact that the concrete post on the bridge with which the vehicle collided was destroyed, that the collision was severe. Dr Purssey properly conceded that he could not say that the injuries sustained by the plaintiff could not have occurred had he been wearing a properly adjusted and securely fastened seatbelt. That does not dispose of the issue. It is a matter of determining whether the defendant by election has shown that it was more probable than not that the plaintiff was not wearing a seatbelt correctly fastened.

[113] For the purpose of his reports Dr Purssey found an undamaged 1993 Toyota Landcruiser in respect of which he took measurements and then used the photographs of the near side of the vehicle after the accident to estimate the actual amount of rearward crush that occurred. Although Dr Gilmore pointed out that there were a number of positions in which the front passenger seat could have been set, he conceded that the distances measured by Dr Purssey were a useful guide. Both Dr Purssey and Dr Gilmore were agreed that the dashboard and windscreen base were pushed backwards toward the passenger by some 200mm to 300mm. The dashboard contained a protruding grab handle which would sit directly in front of the passenger. With the front seat in the "normal" position chosen by Dr Purssey, his dimensions from the vertical squab of the seat to the front of the vehicle were:

Allowing for Dr Purssey's estimation of the intrusion into the cabin on the passenger's side, Dr Purssey estimated the changed dimensions from the vertical squab to the front of the passenger compartment as:

[114] Dr Gilmore pointed out that the distances from the squab to the dash and windscreen should be measured from the front of a seated passenger's face and chest. He allowed 200mm for the depth of the person's body and reduced the relevant estimations to 415mm and 815mm. Dr Purssey agreed with that refinement. Both Dr Purssey and Dr Gilmore were agreed that these distances were minimum distances, as the crush was maximal at the left door and minimal at the centre console.

[115] Dr Gilmore includes in his report in appendix 4 illustrations of the relative positions of a driver in a July 1999 Mitsubishi Pajero 4WD vehicle under conditions of full frontal collision at 55km/hr into a barrier. That vehicle contained an air bag. Dr Gilmore estimated that the driver's head displaced forward an estimated 400mm and that, without an air bag, the driver's head could be expected to impact the dashboard and that the displacement effect at 80km/hr or higher would be significantly increased. Dr Gilmore also relied on literature which concluded that the typical forward movement of the restrained adult obtained from laboratory tests on cadavers using a three point restraint in a Volvo 244 at 50km/hr is 560mm for the head and 400mm for the chest. Dr Gilmore was therefore of the opinion that the allowable displacement of 415mm movement for the chest before it contacted the grab handle on the dash of the vehicle was similar to the 400mm quoted for a Volvo 244 at 50km/hr and stated:

"At an estimated 80 km/h, the expected displacements will exceed the distances available, implying impact between the body and the dashboard/windscreen base."

[116] Dr Purssey made the observation from appendix 4 to Dr Gilmore's report that the projected path of the head of the driver would appear to be more towards the middle or lower part of the windscreen, not the dash. Dr Purssey developed this and made the point that if the plaintiff were restrained by a seatbelt and his head were moving forward, allowing for the elongation of the seatbelt, the maximum forward movement of the head would be 475mm, but that his head would be moving forward above the dash, not down into the dash. I found Dr Purssey's evidence on this aspect more compelling and in accord with common experience than Dr Gilmore's calculations and conclusions.

[117] There was some difference between Drs Purssey and Gilmore as to the direction of the forces operating on the plaintiff at the point of impact and then throughout the course of the collision. It is not necessary to resolve those differences, because both ultimately did agree that at the point of impact the plaintiff's body would have been moving forward and then would have been subject to tremendous deceleration. Dr Gilmore used the expression "severely flung forward". If the plaintiff had been wearing a seatbelt, Dr Gilmore described that the plaintiff's body would have been "flung forward against the belt" and that the belt would be "stretched across the body extremely tightly". Dr Purssey explained that once the seatbelt had reached its full stretch, it could not go any further and "the body hits it hard".

[118] Dr Purssey was able to comment on the likelihood of each injury of the plaintiff's being sustained, if he had been wearing a correctly fitted and fastened seatbelt by reference to his clinical experience and his study in the area. Dr Gilmore was limited in this aspect to reliance on what the studies in the area had concluded about the nature of injury sustained with wearing seatbelts and with not wearing seatbelts.

[119] Dr Purssey described the head injury sustained by the plaintiff as "massive" and consistent with the plaintiff's head having struck the windscreen. Dr Purssey stated:

"... it is highly, or unlikely in the extreme that he was restrained at the time of the accident to receive this head injury".

[120] Dr Purssey conceded that the soft tissue injury to the plaintiff's neck could have occurred with or without a belt. The plaintiff sustained a laceration to his chin. It is described in Dr Harris' report as leaving the plaintiff with a scar on the left side of the chin which is V-shaped with the upper limb of the scar being 3cm in length and the lower limb 4cm in length. The stitched laceration is clearly visible on the left side of the plaintiff's chin in the photographs which are Exhibit 12. Dr Purssey stated that the laceration would not have occurred with a seatbelt. I found Dr Gilmore's evidence on this injury unconvincing, when the location of the laceration on the chin (and not under the chin) is taken into account. Dr Gilmore stated that the plaintiff could have been cut to the bone on the chin, whether he was wearing a seatbelt or not, and he stated:

"The seatbelt will slide around on your body, it will slide - it must slide up because the body goes forward, the seatbelt will be virtually almost strangling you, holding you around the neck or the sash would be, and certainly I envisage very high on the body ... ."

When it was put to Dr Gilmore that it was highly unlikely that the seatbelt would cause a laceration to the bone on the chin, as distinct from an abrasion on the neck, he stated:

"Well, there again in such a severe accident - you or I weren't there at the time. We don't know where the head was flung, whether it was flung against the belt, where the belt went. You really can't say that. I'm not in a position to say that. I don't think anyone is in a position to say that."

[121] The chest injury was severe because the fractured ribs caused lung damage that required the lungs to be drained. Dr Purssey considered the severity of the chest injury in this case was not consistent with the wearing of a seatbelt, particularly as it was the posterior ribs that were fractured and not the anterior ribs. Dr Purssey conceded that he could not say that the fractures of the posterior right ribs could not have occurred, had the plaintiff been wearing a properly adjusted and fastened seatbelt. Both Drs Purssey and Gilmore referred to the fact that fractures normally occur where the sash portion goes across the chest.

[122] I find the photographs of the plaintiff which are Exhibit 12 to be of greater assistance as to the bruising to the chest sustained by the plaintiff in the accident, than the diagram in the ambulance report which was completed by Ms Calway Pridham. That diagram is based on an outline of a human body which is only 53mm from the top of the head to the heel. The contusions shown on the front centre of that body are likely to be the bruises shown in the photograph which are to the right side and above the plaintiff's waist. What is remarkable about these photographs taken of the plaintiff within 8 days of the accident is that they show no "angled bruising ... across the chest ... from a sash belt" which is what Dr Purssey would have expected to be the pattern of contusions consistent with a sash seatbelt. This is particularly so, having regard to the severity of the impact and the description by both experts of the body being flung forward against the seatbelt which also accords with common experience.

[123] Dr Purssey considered that the plaintiff would have still suffered the fractures of the left ankle and probably also the compound fractures of the tibia and fibula, if he had been wearing a seatbelt. It is Dr Purssey's experience that the fracture of the acetabulum is common where a seatbelt has not been worn, but he conceded that it could also have occurred, even if a seatbelt had been worn, because of the compression of the vehicle and the intrusion into the front passenger compartment. That was consistent with evidence given by Dr Morgan that the wearing of a seatbelt does not exclude an injury of this nature.

[124] Even allowing for the severity of the collusion, I consider that Dr Purssey's analysis of the injuries, particularly the head injury, chest injury and the lack of bruising across the plaintiff's chest makes it more likely than not that the plaintiff was not wearing a seatbelt properly fastened at the time of the accident. This analysis is supported by the calculations which Dr Purssey has undertaken in relation to the distances within the vehicle and the likely distance that the plaintiff's head would have moved forward, if the plaintiff had been restrained by the seatbelt.

[125] That finding is also consistent with Mr Morris' evidence which I have no hesitation in accepting that, when he arrived at the accident and observed the plaintiff, the plaintiff was not wearing a seatbelt.

[126] A number of submissions were directed to the defendant's evidence on this aspect. I have concluded that the defendant's evidence to the effect that the plaintiff did fasten the seatbelt when the defendant took over the driving prior to the accident was a deduction on the part of the defendant. I do not accept that the defendant has a reliable recollection, because of his intoxication, about this issue of how the plaintiff was seated at the time of the accident and whether his seatbelt was fastened. I also find that the defendant's evidence to the effect that he observed the plaintiff in the seatbelt after the accident was a deduction on the defendant's part.

[127] I accept Dr Purssey's evidence that the magnitude of the plaintiff's injuries would not have been as great in respect of the head and chest injuries, if the plaintiff had been wearing a seatbelt. The serious head injuries sustained by the plaintiff were the cause of his significant residual disabilities. The defendant by election has therefore discharged its onus in relation to contributory negligence on the part of the plaintiff by reason of failure to wear a seatbelt. In the circumstances the apportionment of liability against the plaintiff on this account should not be insignificant and will be 20%.

[128] The Motor Vehicles Insurance Act 1936 required the plaintiff as the registered owner of the vehicle to indemnify himself and all other persons by a contract of insurance with a licensed insurer against all sums for which he or any such other person should become legally liable by way of damages to any person (including in respect of such injury caused by any such other person to the owner himself).

[129] The definition of "insured person" in that Act which also applies to the Regulations was:

"A person who under a contract of insurance in accordance with this Act is indemnified against all sums for which he or his estate shall become legally liable by way of damages for accidental bodily injury (fatal or non-fatal) to any person in any State or Territory of the Commonwealth of Australia caused by, through, or in connection with the motor vehicle in respect of which such contract is in force;"

[130] The regulation making power in that Act is found in s 9. Relevantly, s 9(h) provided:

"(h) The circumstances in which the Office or a licensed insurer may recover from an insured person any sum paid on his behalf; the regulation of such recovery; the subrogation of the Office and licensed insurers to the rights of an insured person against any other person in respect of any claim; the enforcement of the rights to which the Office or, as the case may be, licensed insurer is subrogated."

[131] The terms of the insurance policy issued under that Act are found in the third schedule to the Regulations. The policy was issued subject to the provisions of the Act and the Regulations which were deemed to be incorporated in and to form part of the policy and stated:

"... it is expressly declared that the indemnities contracted for under this policy are subject to the due and proper observance and fulfilment by the insured person concerned of the provisions of the said Acts and regulations and all endorsements hereon which Acts, regulations and endorsements shall be deemed to be the essence of the contract and to the extent that they require anything to be done or to be not done by the insured person concerned that requirement shall (and, in the case of an endorsement, subject to the said Acts and regulations) be a condition precedent to the right to recover hereunder."

"17. Notwithstanding that by reason of the provisions of a contract of insurance or policy or these Regulations and the circumstances of the case in question an insurer could, but for this regulation, avoid his liability under such contract to indemnify the insured person concerned upon a claim made thereunder by the insured person, the insurer-

(a) May exercise the powers and authorities conferred upon him by regulations 10 and 11 of these Regulations; and

(b) Shall be subject to the liabilities and obligations imposed upon him by regulations 11 and 12 of these Regulations, the provisions whereof may be enforced against him according to their terms,

and for these purposes the insurer shall be deemed to be liable under the contract to indemnify the insured person concerned.

If, in such a case, the insurer pays any sum by way of settlement of any proceeding or to satisfy any judgment or order made or entered against him then he may, by way of action in any court of competent jurisdiction, recover that sum, as a debt due and owing but unpaid, from the insured person whose default constitutes the circumstances by reason whereof the insurer could, but for this regulation, have avoided his liability under the contract of insurance but only if the default is such that the court in which the proceeding for such recovery is taken is satisfied that it contributed in a material degree to the circumstances in which the insurer agreed to pay or otherwise became liable to pay that sum."

[133] Regulation 13(2)(b) of the Regulations provided:

(b) Permit or suffer another who is under the influence of intoxicating liquor or a drug to drive or be in charge of a motor vehicle in respect of which he is an insured person;"

[134] The argument advanced by the defendant by election in reliance on reg 17 relies on the consideration of reg 17 in Evans v Accident Insurance Mutual Holdings Limited [1998] 2 QdR 350. It was submitted that in neither of the judgments of Macrossan CJ and Pincus JA was the proposition doubted that reg 17 applied to an action brought by a plaintiff where that plaintiff was an insured person, although not the driver at the time, in respect of the relevant motor vehicle, but who had permitted the driving by a person who was under the influence of alcohol.

[135] The plaintiff submits that if reg 17 has the effect contended for by the defendant by election, reg 17 is broader in operation than the substance of the regulation for which the regulation making power provided in s 9(h) of the Motor Vehicles Insurance Act 1936. This is on the basis that the regulation making power was limited to the circumstances in which the licensed insurer could recover from an insured person any sum paid on behalf of the insured person. The plaintiff argues that as the defendant is the insured person for this claim, reg 17 should be confined in its operation to recovery proceedings against the defendant in respect of moneys paid on his behalf.

[136] Alternatively, the plaintiff submits that the proper construction of regs 10, 11 and 17 leads to the same conclusion that reg 17 is confined in its operation in this matter to recovery proceedings against the defendant in respect of moneys paid on behalf of the defendant. The plaintiff submits that, in any event, on the basis of the majority reasoning in Evans, the plaintiff did not permit or suffer the driving of the vehicle by the defendant.

[137] In Evans the issue arose whether knowledge of the relevant matters was required of an insured person, before a breach of reg 13(2)(b) could be established. Macrossan CJ held that it was and stated at 359:

"The conclusion should be reached that for an insured person to be in a position where it can be said he has permitted or suffered `another who is under the influence of intoxicating liquor' to drive his vehicle he must either know that the time at which or the period for which acquiescence is given is a time or period when the permittee is or will be under the influence or he must know facts from which it must be concluded that he knew the permittee was or would be under the influence."

Pincus JA dissented in Evans and considered that reg 13(2)(b) should apply where the insured person's own intoxication was the reason why the insured person did not know of the driver's intoxication.

[138] The third member of the court in Evans was Fryberg J. He resolved the appeal on another issue which was before the court which was whether the insured person and driver were co-owners of the relevant vehicle. Fryberg J added at 367:

"However, in case the foregoing approach be too narrow, I would also express general agreement with the reasons for judgment of the Chief Justice. My only reservation is the question of the construction of reg. 17. In my view, that issue should be left for another day."

[139] The judgment of Fryberg J therefore supports the conclusion of Macrossan CJ as to the element of knowledge required, before reg 13(2)(b) can be invoked against an insured person.

[140] In order to raise this defence based on reg 17, the defendant by election bears the onus of showing that the plaintiff had breached reg 13(2)(b). For similar reasons for which the defendant by election has been unsuccessful in establishing the defence of voluntary assumption of risk, the knowledge of the plaintiff that is necessary to establish a breach of reg 13(2)(b) is not established on the evidence.

[141] It is therefore not necessary to consider the plaintiff's alternative arguments raised to meet the defence based on reg 17. If it were necessary to do so, but for the authority of the majority view in Evans in respect of the application of reg 17, there is some attraction in the argument of the plaintiff, as to the proper construction of reg 17. This construction argument of the plaintiff does not appear to have been advanced in Evans.

[142] Pincus JA expressly held in Evans (at 361) that reg 17 sufficiently evinced an intention to catch the case in which the injured plaintiff was also the insured person. The reasons for judgment of Macrossan CJ proceed on the basis that reg 17 could be relied on by the insurer in that case. Fryberg J expressly reserved his position in relation to the construction of reg 17.

[143] The plaintiff submits that reg 10 permitted the licensed insurer to elect to be joined in a proceeding against an insured person for which the insured person is indemnified. If the insured elected to defend under reg 11, it was then entitled to the sole conduct of the proceedings on behalf of the insured person. It is therefore submitted that once an election to defend has been made by the insurer, the insured person relevantly is that person against whom the claim was made. It is therefore argued that the recovery allowed under reg 17 is specifically linked to the exercise of the power to elect to be joined under regs 10 and 11 and similarly specifically linked to recovery from the insured person which must be a reference to the insured person against whom a claim has been made under reg 10. It is submitted that the use of the definite article is significant as, elsewhere in the Regulations, the indefinite article is used almost exclusively in reference to insured persons. It is therefore submitted that the Regulations do not permit recovery by the licensed insurer by way of reimbursement from the owner, when the claim for which indemnity by the licensed insurer is provided is made against a person other than the owner.

[144] The defendant by election claims against the third parties for indemnity or contribution on the basis that, if the defendant by election is liable to the plaintiff for damages to any extent, the third parties' breach of contract, the duty of care or statutory duty caused the plaintiff to suffer loss and damage as a result of the accident.

[145] The defendant by election pleads that implied terms of the contract entered into between the first third party on the one hand and the plaintiff and the defendant on the other hand, as a result of the plaintiff and the defendant registering as guests of the hotel on 3 February 1994, were:

"(a) that the First Third Party and the Second Third Party and the employees of the First Third Party would take all reasonable care to provide accommodation to the Plaintiff and the Defendant that was reasonably fit for that purpose;

(b) that in the course of the stay at the Hotel of the Plaintiff and the Defendant the First Third Party, the Second Third Party and the staff of the First Third Party would observe the provisions of the Liquor Act;

(c) that the First Third Party, the Second Third Party and the employees of the First Third Party would take all reasonable care to prevent foreseeable harm occurring to the Plaintiff and the Defendant;

(d) that the First Third Party, the Second Third Party and the employees of the First Third Party would not supply alcohol to the Plaintiff or Defendant at the Hotel if they were unduly intoxicated;

(e) that the First Third Party, the Second Third Party and the employees of the First Third Party would not allow alcohol to be consumed by the Plaintiff or Defendant at the Hotel if they were unduly intoxicated;

(f) if the Plaintiff or Defendant's state of intoxication became so gross as to cause incapacity on the part of the Plaintiff or Defendant for reasonable self-preservation or for reasonable preservation of the other, the First Third Party, the Second Third Party and the staff of the First Third Party would take reasonable action to avert the Plaintiff or Defendant moving into dangerous circumstances with respect to themselves or the other."

[146] The third parties admit the implied terms set out in paragraphs (a), (b) and (d). In relation to the implied terms alleged in paragraphs (c), (e) and (f), the third parties admit such obligations and duties as are imposed by law, but otherwise deny the allegations on the basis that they are untrue.

[147] As a result of the existence of that contract, the defendant by election pleads that the third parties and the employees of the first third party owed to the plaintiff and the defendant a duty to:

"(i) take all reasonable care to provide accommodation to the Plaintiff and the Defendant that was reasonably fit for that purpose;

(ii) in the course of the stay at the Hotel of the Plaintiff and the Defendant, observe the provisions of the Liquor Act;

(iii) take all reasonable care to prevent foreseeable harm occurring to the Plaintiff and the Defendant;

(iv) not supply alcohol to the Plaintiff or Defendant at the Hotel if that party was unduly intoxicated;

(v) take reasonable action to avert the Plaintiff and the Defendant moving into dangerous circumstances with respect to themselves or the other if their or either of their states of intoxication became so gross as to cause incapacity on their behalf for reasonable self preservation or preservation of the other."

[148] The third parties admit the duties set out in paragraphs (i) and (ii). The third parties admit the duties that are set out in paragraphs (iii), (iv) and (v) to the extent that they are imposed by law, but otherwise deny the allegations contained in those paragraphs on the basis that they are untrue.

[149] The third parties, while conceding that some duties were owed both in contract and in tort to the plaintiff and the defendant, seek to defend the claims against them made by the defendant by election on the basis that on the facts of this case, there was no breach of any duties that were owed.

[150] The question of a publican's liability for injuries caused to a patron who departed the hotel in an intoxicated state was considered in Johns v Cosgrove (1997) 27 MVR 110. Derrington J stated at 114:

"It is not negligence merely to serve a person with liquor to the point of intoxication; but it is so if because of the circumstances it is reasonable foreseeable that to do so would cause danger to the intoxicated party, such as, for example where the intoxication is so gross as to cause incapacity for reasonable self-preservation when it is or should be known that he or she may move into dangerous circumstances, and where no action is taken to avert this."

[151] In that case the patron left the hotel in order to catch a bus home. While waiting at the bus stop, he moved onto the road and was struck by a vehicle. The patron's BAC was measured shortly afterwards at 0.332%. The publican was held liable because of the special circumstances in that case, which were that the hotel was situated between two major arterial roads, the patron's habit of going home unescorted was known, the gross level of intoxication of the patron and the failure of the publican to take any precautions for the patron after turning him out at closing time.

[152] A more open-ended view of the liability of those conducting licensed premises was found in Cole v Lawrence at paras [47] to [68]. The duty was described as being owed by the licensee to the patron to take reasonable care in and about the serving of alcohol and was found to be breached by the supply of bottles of champagne to the patron when she was drunk and which were found to be a contributing cause of the injury she suffered when she was struck by a vehicle after leaving the licensed premises. The facts in Cole v Lawrence are distinguishable in that the patron in that case was grossly intoxicated whilst at the licensed premises.

[153] The question of the liability of a licensee of a hotel to a patron also arose in Desmond v Cullen [2001] NSWCA 238 in which Grove J (with whom Young CJ in Eq agreed) accepted that the duty of care of an innkeeper extends to refraining from serving intoxicating liquor to the apparently inebriated and, if inebriation does occur, to take reasonable steps in the circumstances in respect to the safety of the inebriate. The other member of the court, Spigelman CJ, found it was not necessary to decide the boundary of the duty owed by a licensee of a hotel to patrons of the hotel. In that case a patron who had been in a group purchasing beer in a shout who was capable of walking when he left the hotel was struck by a vehicle, as he was walking home. Although the bar attendant observed that the patron was displaying "the wobbly boot" when he was leaving, his friends said they would look after him. On the facts it was found that there was no evidence that the licensee knew that the patron was affected by liquor, beyond the observation that he displayed the "wobbly boot" and any duty on the part of the licensee to have taken or escorted the patron home was discharged by the reliance of the licensee on the proffered assistance of the patron's friends.

[154] This is also a matter in which it is not necessary to identify the precise terms of the contract between the third parties and the plaintiff or the duty of care owed by the third parties to the plaintiff, as the relevant facts must preclude a finding of breach of any duties that were owed to the extent that they are based on the terms and duties which are pleaded.

[155] These relevant facts were that the plaintiff and the defendant were not grossly intoxicated when they left the bar of the hotel in the early afternoon of the day of the accident ostensibly to have a sleep. Mr and Mrs Stone believed that the plaintiff and the defendant were intending to stay the night in Jericho. Mr and Mrs Stone had no knowledge of the plaintiff and the defendant's leaving the hotel in the afternoon of the day of the accident to drink at a friend's place or that they had even departed the hotel to return home by about 5.30pm. The events that occurred of the defendant's driving the plaintiff while the defendant was grossly intoxicated could not be described as foreseeable harm in the circumstances known to Mr and Mrs Stone.

[156] If there were a statutory duty by the third parties to the plaintiff in terms of s 156(1) of the Liquor Act 1992 which would mean that the third parties owed a duty to the plaintiff not to supply him liquor or allow liquor to be consumed by him, if he were unduly intoxicated or disorderly, the findings which I have made about the state of the intoxication of the plaintiff and the defendant at the time they left the bar in the early afternoon of the day of the accident mean that the defendant by election has failed in proving a breach of s 156(1) of the Liquor Act 1992.

[157] The defendant by election's claim against the third parties must be dismissed.

[158] The plaintiff seeks an award of $150,000 for damages for pain and suffering and loss of amenities of life. The defendant contends that the appropriate award is the sum of $100,000.

[159] The plaintiff relies on the award for general damages made in Trenerry v Hedge (unreported_,_ Shepherdson J, 14 May 1996) which was the amount of $150,000 for a plaintiff who was injured in 1982 when she was 17 years old and who received not dissimilar neurological injuries to the plaintiff. The award was described by the Court of Appeal as "certainly high", but not excessive: Hedge v Trenerry (unreported, Davies and McPherson JJA and Demack J, 7 November 1997).

[160] The Court of Appeal did not interfere with an award of $150,000 for pain, suffering and loss of amenities in FAI General Insurance Co Ltd v Green (unreported_,_ Davies and McPherson JJA and Ambrose J, 19 April 1996) where a 10 year old boy had suffered serious brain damage which destroyed his earning capacity and caused the need for some care.

[161] General damages of $150,000 were also awarded to a boy aged 12 years when injured in Goode v Thompson (unreported, Ambrose J, 2 July 2001) where a very severe head injury was sustained with the consequence that the child's earning capacity was destroyed and full time care and attention was required for the rest of his life. The fact that that plaintiff had "little insight into his pitiable condition" affected the assessment of general damages.

[162] Support for an award of general damages of less than $150,000 is gained from Winterton v Mercantile Mutual Insurance (Australia) Ltd [2000] QCA 249. A 14 year old girl was injured in a motor vehicle accident in 1995. She had functioned in the low average to borderline range of intelligence before her injuries. Her head injuries caused impairment of her gross motor skills in the form of loss of mobility and balance, while her fine motor skills were impaired by poor coordination and an involuntary tremor. Although she could manage some personal hygiene tasks independently, she needed assistance with other aspects of grooming and personal care and manifested severe cognitive deficits. She was assessed as performing in the borderline mentally retarded to mildly mentally retarded range. At trial an amount of $200,000 was awarded for pain, suffering and loss of amenities. That was reduced to $150,000 on appeal.

[163] The defendant by election relies on the lack of evidence given by the plaintiff himself as to his pain and suffering and that there was evidence of some less than perfect insight on the plaintiff's part into his disability. The defendant by election had also allowed in the assessment of pain and suffering an amount for loss of expectation of life on the basis of Dr Hopkins' evidence of a 10% impairment of life expectancy over the whole life, resulting in a loss of expectation of life of 7.5 years. That estimate, however, has to be compared with Dr Corbett's estimated reduction of 1% to 2%.

[164] My own estimation after observing and listening to the plaintiff give evidence was that his cognitive deficits had not deprived him of insight into the differences between his life pre-accident and post-accident. When asked how the plaintiff felt about himself compared to how he felt about himself before the accident, he answered, "Well, I sort of can't do much now". He then said he was much affected by that. It was also apparent from Mrs Devry's evidence that the plaintiff does get frustrated when he cannot do a particular task. Dr Hopkins expressed the opinion that the plaintiff does have insight into his life situation, recognising the gap between his pre-injury lifestyle and his present situation. Dr Hopkins draws the distinction between that insight and the lack of insight that the plaintiff has in his interpersonal and social interactions which is a consequence of his injuries.

[165] In view of the plaintiff's age when injured, compared to that of each of the plaintiffs in Trenerry v Hedge, FAI General Insurance Co Ltd v Green and Winterton v Mercantile Mutual Insurance (Australia) Ltd, I consider that an award of $125,000 is appropriate for the plaintiff's pain and suffering and loss of amenities of life which also covers loss of expectation of life.

[166] I determine the component of the award for damages of pain and suffering and loss of amenities attributable to the past to be $60,000. Interest will be allowed on $60,000 at 2% for 7.8 years which is $9,360.

[167] The plaintiff's calculation of past economic loss is found in Exhibit 43 which is based on the earnings of a comparable employee of the same employer who was advised to Mr Hamilton by the supervisor in charge of the open cut. The calculation of lost earnings until 20 August 2001 is $311,511.67 and the plaintiff submits that ongoing lost income to the date of judgment is to be calculated at $1,041.50 per week. In addition, the plaintiff would have been provided with board and utilities. That is estimated at $60 per week which calculated for 7.8 years would be a further $24,336. Extending the calculation of past economic loss until the end of November 2001 makes the total amount approximately $350,000.

[168] The defendant by election did not dispute the starting point for the plaintiff's claim for past economic loss, but submitted that the past loss should be discounted by 30% to take account of a number of factors. It is therefore necessary to make findings in respect of the factors relied on by the defendant by election to support a substantial discount.

[169] The plaintiff's medical history prior to the accident was explored with a number of witnesses, as in order to continue as a plant operator at the mine, he would have had to continue to attend for regular compulsory medical examinations.

[170] According to medical records that were tendered during the trial, the plaintiff was admitted to the Dysart Hospital on 24 November 1986 following a blackout at a mine site where he was found slumped over the wheel of a grader. On admission, the plaintiff smelt heavily of alcohol. He advised that he had drunk 6 stubbies that day prior to work and 12 stubbies the day before.

[171] The plaintiff was readmitted to the Dysart Hospital on 6 September 1987 following another blackout. He had telephoned his neighbour complaining of pains in his chest and was found shortly afterwards slumped on the floor at home. He again advised he had been drinking heavily prior to the incident.

[172] In the latter admission, it was noted that the plaintiff had "epilepsy on EEG last November", although there was no actual report on record. The report from the Dysart Hospital noted that the plaintiff had apparently been started on Tegretol some time in between, but states that "his compliance was questionable".

[173] According to the Rockhampton Base Hospital records, the plaintiff was admitted to that hospital late on 13 February 1992 after being transported from Blackwater Hospital where he had been restrained by six men and was in handcuffs. The plaintiff had been sacked two days previously and had been drinking constantly in that two days. On admission at Rockhampton Base Hospital the plaintiff was described as smelling strongly of alcohol. In the history the plaintiff gave the next day, he referred to his de facto wife's leaving him three months previously and that he had been drinking heavily "about 12 stubbies per day" since then.

[174] The incident which resulted in the plaintiff's dismissal was the tearing of a button off the supervisor's shirt. After the dispute had been mediated, the plaintiff was reinstated as an employee on 12 May 1992 without loss of entitlements.

[175] The plaintiff was referred again from Blackwater Hospital to Rockhampton Base Hospital on 14 November 1992 following presentation with collapse and ataxia. The plaintiff was reviewed by a psychiatrist on 19 November 1992. According to the notes of the psychiatrist, the plaintiff was aggressive about having to be interviewed by the psychiatrist and the plaintiff then discharged himself from the hospital. The plaintiff's subsequent work history after returning to work on 20 November 1992 is unremarkable.

[176] Mr Coyne described the plaintiff as a reasonable plant operator who would have moved through the classification levels on seniority, as positions became available, but Mr Coyne did not consider that the plaintiff would have become a supervisor. Mr Coyne stated that there had never been any incident at the mine involving the plaintiff's turning up for work in an intoxicated state. Mr Coyne stated that a random alcohol testing program commenced in 1995 at the mine.

[177] Dr Corbett expressed the view which I accept that, on balance, he did not consider that the plaintiff had epilepsy before the accident. In view of the period of 14 months between November 1992 and the date of the accident in which nothing significant occurred in the plaintiff's history relating to alcohol, Dr Corbett considered that alcohol was probably not a significant factor in respect of the plaintiff's capacity to work at the date of the accident. That appears to be a reasonable conclusion.

[178] The events relied on by the defendant by election between 1986 and 1992 in relation to the plaintiff's abuse of alcohol cannot be ignored. That history has to be taken into account with the otherwise good work history of the plaintiff. The defendant by election's proposal to discount the past loss by 30%, even allowing for the additional matters which the defendant by election raises, apart from the effect of alcohol abuse, is excessive. The risk that the defendant's work capacity may have been affected by alcohol abuse and the small sums for which credit should be given in respect of the past loss would be reflected by a discount of 10%. The plaintiff therefore should recover $315,000 for past loss.

[179] As the plaintiff has received a disability pension since shortly after the accident, the defendant by election submitted that a deduction should be made from past economic loss to account for receipt of the disability pension, before calculating interest. The amount of the disability pension was not established. The defendant by election submitted that it would have been in the order of $200 per week and Mr Morton of counsel on behalf of the plaintiff submitted that it was only about $150 per week. As there is nothing precise about either figure, but some allowance needs to be made for the receipt of this pension when calculating interest, I will estimate that approximately $70,000 was received by way of pension and calculate the interest on past economic loss in respect of the sum of $245,000. Interest at 5% for 7.8 years on $245,000 is $95,550.

[180] The plaintiff's calculation for future economic loss proceeds on the basis that he would have worked at the mine or in other mines until he was at least 60 years. It is also submitted that, even if he had ceased work in the mines at that age, he would have had many skills which could have seen him continue to earn income past the age of 60.

[181] The plaintiff's plan in purchasing a rural property on which he could graze cattle, while he remained employed at the mine, showed enterprise. At the date of the accident the plaintiff already owned cattle which were agisting on another's property. Apart from the episodes with alcohol, the plaintiff's work history warrants proceeding on the basis that he would have remained employed at the mine for as long as he was able. The work at the mine was obviously arduous. Mr Coyne did not recall anyone who was presently 60 years old working at the mine, but could state that there were a number of employees in the mid-50's range.

[182] When the plaintiff was asked in examination-in-chief, as to what age he thought he might retire at, he responded firmly "about 55". Mr Morton submitted that it was questionable whether that response was reliable. I consider it a realistic response and supported by Mr Coyne's evidence. Even if the plaintiff had retired to a property it is unlikely that he would have continued to earn at the rate of $1,041.50 per week.

[183] A loss of $1,041.50 for 12 years on the 5% tables is $493,671.

[184] The plaintiff's calculation of future economic loss did not include a component for the value of board which would have been provided to the plaintiff had he continued to reside at the single persons' quarters at the mine. I accept the submissions made by the defendant by election that it was unlikely that, if the accident had not occurred, the plaintiff would not have formed another relationship with a woman which would have required him to move to Blackwater. As the amount of the board was included in the calculation of past economic loss, the probabilities of the plaintiff's not continuing to reside at the single persons' quarters is provided for by not including an amount on account of the value of board in the future economic loss calculation.

[185] The plaintiff submits that no further discount should be made to the plaintiff's award for future economic loss, as it is sufficient discount that the plaintiff's award is limited to a particular age without making any further allowance for what he may have earned after that age. The defendant by election seeks to apply the normal discounting for contingencies of 15% and then discount the result further by reason of the history of blackouts and alcohol abuse relied upon by the defendant by election as putting the plaintiff's employment at risk. The defendant by election submits that the further discounting should be in the order of 30%.

[186] One of the matters also relied on by the defendant by election for discounting the plaintiff's future economic loss was the fact that when Ms Moore was obtaining a history from the plaintiff at Baillie Henderson Hospital, he described to her a history of drug and alcohol abuse during his late adolescence and early adulthood. He also reported polysubstance abuse of alcohol and the non-intravenous use of drugs such as amphetamines and marijuana. Dr Corbett expressed the opinion that there was no reason to expect confabulation in that area, so that it is likely there was some factual basis for the history given by the plaintiff. No family member or other witness who was acquainted with the plaintiff during his late adolescence and early adulthood had any knowledge of use of illegal drugs by the plaintiff. Nothing in the medical reports or records relating to the plaintiff from the mid 1980's provides any indication that such conduct continued. Even accepting that the plaintiff did use amphetamines and marijuana 12 to 15 years prior to the accident, the lack of continued use does not warrant treating a relapse into use of such drugs as a contingency which warrants discounting future economic loss.

[187] For the reasons which I have dealt with in relation of the discounting of past economic loss, I do not consider that the risks identified in relation to the plaintiff's employment, as a result of alcohol abuse, require the severe discounting contended for by the defendant by election. Having regard to the assumptions made in relation to the calculation of the sum of $493,671, I consider it sufficient to apply a discount for contingencies of 15% which results in an amount for future economic loss in round terms of $420,000.

[188] The plaintiff seeks to recover superannuation loss calculated at 8% of past and future economic loss. The defendant by election submits that it is appropriate to allow superannuation loss at 6% of net past economic loss and 7% of net future economic loss, as, in relation to the future, there would have been a 15% tax on entry to the fund and a 15% tax on withdrawal. I accept the defendant by election's submission. The total amount for loss of past and future superannuation will be $48,300.

[189] Exhibit 20 is the schedule of past care. It is divided into schedule A and schedule B. Schedule A deals with the gratuitous care provided by family members from 6 February 1994 until 31 October 1997.

[190] All family members travelled to Rockhampton Base Hospital when the plaintiff was taken there after the accident, as they believed he would not survive. As he was in a coma for the first two weeks, there was in effect nothing which could be provided by all members of the family greater than the presence of one member of the family to provide support for the plaintiff. I therefore accept the submission of the defendant by election that the plaintiff should be compensated only for the gratuitous care provided by Mrs Wills in that period between 6 February and 20 March 1994.

[191] I accept Miss Wills' evidence as to the care which she provided to the plaintiff whilst he was at Princess Alexandra Hospital and then at Baillie Henderson Hospital. It appears that the provision of gratuitous care fell to Miss Wills while the plaintiff was at Baillie Henderson Hospital, rather than Mrs Wills. As the calculation for the gratuitous care provided by Miss Wills during the period the plaintiff was at Baillie Henderson Hospital was set out in the plaintiff's quantum submissions (Exhibit 60) rather than Exhibit 20, I will deduct from schedule A the amounts incorporated for gratuitous care for the period from 16 September 1996 until 30 October 1997. That amends the total for schedule A to $92,007.70.

[192] The amount claimed for Miss Wills' gratuitous care whilst the plaintiff was an inpatient at Baillie Henderson Hospital is $15,950.58 which I allow.

[193] Schedule B of Exhibit 20 deals with gratuitous care provided from 1 November 1997 to the date of trial. As the gratuitous care was primarily provided by Miss Wills until 9 April 1998, I will delete the claim for care from 1 November 1997 until 31 May 1998 and instead substitute a claim for the period from 10 April 1998 until 31 May 1998 (a period of 7.2857 weeks) which at $11 per hour makes the sum of $1,202.14.

[194] Mrs Wills has estimated that since the plaintiff relocated to Barcaldine on 9 April 1998 that she has provided care at an average of 15 hours per week. More assistance was obviously required during the settling in period for the plaintiff in his new home and his new routine. Mrs Wills visits the plaintiff approximately monthly and the plaintiff visits his parents' property on weekends when he chooses to which appears to be less frequently than monthly. Mrs Wills is in constant telephone contact with the plaintiff and spends much time on the telephone endeavouring to sort out problems involving the plaintiff. Sometimes that requires her to make a trip to Barcaldine.

[195] As the period covered by schedule B incorporates the period of settling in to the routine of care and activities at Barcaldine, I accept that, even allowing for the care provided through Blue Care, that the plaintiff's family primarily through Mrs Wills has provided an average of 15 hours per week in gratuitous care.

[196] Allowing for gratuitous care at the same rate for the period from 20 August 2001 to 30 November 2001 at $20.34 per hour makes a further sum of $4,445.73. The amended total of schedule B is therefore $54,796.35.

[197] The total amount allowed for past gratuitous care provided by the plaintiff's family is therefore in round terms $160,000.

[198] The defendant by election submits that the amount for past gratuitous care in this vicinity is "unacceptable, excessive, and not necessary". The amount claimed, however, is in respect of a period in which substantial commitment has been required of Mrs Wills to get the plaintiff into a position where he is now capable of living by himself in a house at Barcaldine with the assistance of daily supervision and care from Blue Care.

[199] The plaintiff also makes a claim for gratuitous care rendered by Mrs Devry for the past 2 years.

[200] Blue Care is funded by the State of Queensland under the scheme Project 300 set up in respect of the Disability Services Act 1992. The plaintiff has not had to pay for the care provided to him through Blue Care, because Blue Care applies to the State of Queensland for the funding to provide that care.

[201] Blue Care has a coordinator based in Barcaldine to coordinate the care for the plaintiff. Mrs Devry commenced looking after the plaintiff through Blue Care on 1 September 1999. She attends at the plaintiff's home at 8am in the morning and, in a supervisory role, makes sure that he has eaten breakfast, attended to his grooming and gives the plaintiff his medication. She then accompanies him on an activity. One day he goes to TAFE. Another day the plaintiff goes to a gymnasium for exercise. It appears that Mrs Devry assists the plaintiff with his shopping and then has him assist her in cooking meals which can be re-heated by the plaintiff. Mrs Devry usually leaves about 11am.

[202] In the middle of his day the plaintiff spends time in having lunch and going down town to pick up mail from businesses to post. One day each week the plaintiff accompanies the mail carrier who does the country mail run. The plaintiff goes as an observer, but might open the occasional gate.

[203] Mrs Devry usually returns at 3pm until 6pm. Each afternoon they do grocery deliveries for one of the shops in Barcaldine. The grocery shop pays the plaintiff for delivering the groceries. It may be only $20 per week, if there are not many groceries. It is never more than $50 per week.

[204] Mrs Devry works 10 days each fortnight. (Blue Care provides another carer or carers for the other days.) Apart from the 6 hours per day, she is available to speak to the plaintiff when he telephones her or if there is an emergency. Mrs Devry has endeavoured to reduce the number of telephone calls by explaining to the plaintiff that she will reduce the time she spends with him during the day by 10 minutes for every telephone call. Mrs Devry has been successful in reducing this after hours contact.

[205] When asked what was the average number of hours that Mrs Devry spent dealing with the plaintiff one way or the other, she responded "Probably between seven and eight".

[206] It was apparent from Mrs Devry's evidence that by her persistence with the routines that have been developed for the plaintiff, she has been able to train him about making demands on her time outside the 6 hours per day. I accept that Mrs Devry has in the past provided the additional care for which she does not receive payment. It was not clear from Mrs Devry's evidence that the additional care worked out at an average of 1 to 2 hours per day. I will allow 1 hour per day as an average for the additional care which the plaintiff has received from Mrs Devry since 1 September 1999.

[207] Using the rates for the periods from 1 September 1999 set out in schedule B in Exhibit 20, I calculate the gratuitous care provided by Mrs Devry as follows:

[208] I will therefore allow on account of past gratuitous care the amount of $171,742.85.

[209] Interest on the past gratuitous care provided by the plaintiff's family will be allowed at 5% for 7.8 years which amounts to $62,400. Interest will be allowed on the gratuitous care provided by Mrs Devry at 5% for 2.25 years which amounts to $1,321.07, making a total amount of interest on past care and assistance of $63,721.07.

[210] The plaintiff's claim is based on an unimpaired statistical life expectancy of 34.41 years, on the basis of his present age of 43 years. Dr Corbett considered a reduction of 1% to 2% was appropriate, whereas Dr Hopkins thought that something in the order of 7 years was appropriate. I accept that there is no real basis to choose between the estimates. I will therefore assess damages for this head on the basis that the plaintiff has a life expectancy of 30 years.

[211] It was apparent from the evidence of Mrs Devry and Mrs Wills that the plaintiff's current care arrangements are working well. They provide the basis for working out what should be allowed for future care. In view of the improvement that the plaintiff has shown during the period of 3 ½ years in which he has been receiving daily supervision and care and that the medical opinions do not suggest that he will require greater care than this in the future, it is reasonable to allow for future care on the basis of 6 hours care per day from an appropriately qualified care worker, such as Mrs Devry.

[212] The difference in the calculations submitted respectively by the plaintiff and the defendant by election is whether this future care is allowed for through an agency such as Blue Care or calculated on the basis of the appointment of a local person as the plaintiff's case manager who arranges for the rosters of carers. This was the third alternative suggested by Ms Stephenson.

[213] Blue Care calculates that if it were to charge the plaintiff for the services that are provided to him on the basis that Blue Care was not receiving any Government subsidy support to provide those services, it would need to charge $26 per hour for the carer and $50 per hour for the coordination. This compares with the rate at which a disability support worker would be paid during the week at $14.15 per hour and during the weekend at $21.23 per hour. Ms Stephenson considers that a case manager who was responsible for rosters, pays, recruitment and training where there was no agency would be required to work 7 to 10 hours per week and would be paid between $25 per hour and $30 per hour.

[214] The success of the care which has been provided to date to the plaintiff through Blue Care has been partly due to the coordination and support role that Blue Care provides for the carers. The personality of the carer is obviously important. Blue Care has the resources to be able to procure carers on a daily basis and to provide replacement carers, as the need arises, and continuity of care.

[215] In order to ensure that the plaintiff continues to receive the type of care which has enabled him to function optimally and as independently as possible, the plaintiff seeks that such care be allowed in the future at $26 per hour which means care can be provided through an agency. I accept that is appropriate. The care should be for 6 hours per day. As I considered that the additional care that Mrs Devry was providing above the 6 hours per day was diminishing, I do not consider it necessary to allow for gratuitous care provided by a carer such as Mrs Devry above the 6 hours per day.

[216] Future care provided to the plaintiff through an agency also requires an allowance for coordination. Ms Stephenson's estimation that the role of a coordinator can take from 7 to 10 hours per week was in the context of no agency involvement. Dr Hopkins considered that the plaintiff's future care would require in the region of 35 hours per week of carer time and 2 hours per week of case management time which would be the average weekly time for organising care and to be a reference point for the client and the care staff. Allowance for future care must therefore cover the case manager's time of 2 hours per week at $50 per hour.

[217] The plaintiff also seeks a further 2 hours per day representing care provided by Mrs Wills. I also inferred from Mrs Wills' evidence that the care which she is providing is diminishing. In view of Mrs Wills' age, it is unlikely that she will provide such care for more than 5 years. I do not see that it is necessary to provide for gratuitous care being provided to the plaintiff by others after that time. The plaintiff's siblings are not in a position to provide that care.

[218] I therefore calculate the future care to be provided by Mrs Wills at 1 hour per day at $11 per hour on the 3% tables to be $18,711. I calculate the allowance for the paid future care of a carer to be 6 hours per day at $26 per hour on the 5% tables for the next 30 years to be $897,624. I calculate the allowance for the coordinator at $50 per hour for 2 hours per week on the 5% table for the next 30 years to be $82,200. That makes a total amount for future care of $998,535.

[219] Exhibit 17 is a schedule of taxi fares accompanied by receipts in respect of trips taken by Mrs Wills associated with the treatment of the plaintiff. The total amount expended between March 1995 and October 1996 is $716.76. I will allow interest on that amount of $418.10 comprising 5% for the period between 5 March 1995 and 14 October 1996 ($53.75) and 10% thereafter for 61 months ($364.35).

Accommodation and meal expenses for medical appointments

[220] Exhibit 15 is the schedule of accommodation and expenses for Mrs Wills in connection with the medical treatment of the plaintiff. The total amount incurred between 5 February 1994 and 15 May 1997 was $3,997.05. Interest should be allowed on that sum of $2,448.19, making a total amount of $6,445.24.

[221] Exhibit 18 is the schedule of bus and airfares incurred by Mrs Wills in connection with the plaintiff's treatment. The total amount expended was $8,042.05. Interest should be allowed on that sum of $4,630.68, making a total amount of $12,672.73.

[222] Mrs Wills incurred $559.60 on account of pharmaceutical expenses for the plaintiff between 18 June 1994 and 9 October 1996. The details are set out in Exhibit 16. Interest should be allowed on that amount of $349.74, making a total amount of $909.34.

[223] Exhibit 14 is the schedule of mileage expenses incurred mainly by Mrs Wills in relation to making trips in connection with the plaintiff's care and treatment. The total expense is $14,103.19. Interest will be allowed in the sum of $7,404.18, making a total amount for mileage expenses of $21,507.37.

[224] Exhibit 19 is a schedule of miscellaneous expenses incurred by Mrs Wills in relation to the plaintiff's care and rehabilitation. The sum claimed of $485.80 is not challenged. Interest of $344.10 should be allowed, making the total amount for miscellaneous expenses the sum of $829.90.

[225] The plaintiff seeks the sum of $291,006.31 in order to make the following refunds:

[226] In relation to the funds provided to Blue Care for the plaintiff's care of $205,707, the Disability Program Manual (Exhibit 22) which applies to the administration of that funding merely refers to the expectation that an individual who has received compensation settlements to provide for their attendant care and accommodation support needs will refund the moneys previously provided for those purposes. There is no provision in the Disability Services Act 1992 requiring the refund to be made by the plaintiff. As there is no legal liability requiring the plaintiff to repay that sum to the State of Queensland, there is no basis on which the plaintiff can recover that amount from the defendant by election.

[227] Exhibit 23 contains documentation to support the liability of the plaintiff to cause refunds to be made to the Rockhampton Base Hospital, Princess Alexandra Hospital, Commonwealth Rehabilitation Service and the Health Insurance Commission. The total amount of the refunds is $85,299.31 which is recoverable by the plaintiff from the defendant by election.

[228] At the time of the trial the plaintiff was taking Risperidone. The allowance for future medication has to take into account the possibility of the plaintiff's requiring an anti-convulsant medication. The defendant by election submitted that this head of damage should be $10,000 which was a little more than that submitted by the plaintiff. I will therefore allow the sum of $10,000 for future medication.

[229] The plaintiff seeks an amount of $20,000 to cover the additional expenses he would need to incur, if he were to be accompanied by a carer if he travelled for recreation. The plaintiff seeks to rely on the approach to such head of damage by Green v Discombe (unreported, Derrington J, 19 April 1995).

[230] The defendant by election submits that there should be no allowance for such travel costs, as it could not be of benefit for the plaintiff to travel around the world, as it would be upsetting and confusing for him to be removed from his routine. I am not satisfied on the evidence that it is likely that the plaintiff will travel with a carer. I therefore will not make an allowance for this head of damage.

[231] It is foreseeable that the plaintiff may require specialist medical treatment in the future which will require him to travel to, say, Rockhampton. The defendant by election submits that a global amount of $2,500 should be allowed for future travelling for medical attention. I will allow the sum of $2,500 on that account.

[232] The plaintiff has a regular consultation with his general medical practitioner each month. This is as a result of his residual disabilities produced by the injuries sustained in the accident. There is also the possibility of other specialist medical attention which will be required as a result of these disabilities. The defendant by election's estimation of $10,000 is again a little more generous than that calculated on behalf of the plaintiff. I will allow the sum of $10,000 for this head of damage.

[233] One head of damage has been deferred until after the publication of these reasons. That is the administration expenses which will be charged in respect of the administration of the damages award recovered by the plaintiff. Apart from that head of damage, my findings in relation to quantum can be summarised as follows:

[234] After apportionment for contributory negligence, the damages assessed at this stage amount to $1,918,806.10.

[235] I will therefore adjourn the proceeding for further hearing in respect of assessment of the administration expenses which should be the subject of an award in favour of the plaintiff against the defendant by election.

Defendant by election's claim against the defendant

[236] Although the defendant was a witness in this proceeding, the defendant was not represented at the hearing. The defendant does not seek to raise any matters which might exculpate him from liability under reg 17 of the Regulations.

[237] The defendant breached reg 13(2)(a) by driving the vehicle while intoxicated. As the defendant's intoxication contributed in a material degree to the circumstances in which the defendant by election will be liable to pay damages to the plaintiff, the defendant by election is entitled to the declaratory relief sought in its notice claiming indemnity or contribution.

[238] Except for the dismissal of the defendant by election's claim against the third parties, it is premature to formulate the terms of the final orders. I will hear submissions on the issue of costs between the defendant by election and the third parties.