Zamagias v Saltalamaccia

How did the collision occur?

1. Both the Plaintiff and the Defendant assert they had the right of way at the intersection at the time of the collision.
2. The Plaintiff said that on the day of the accident, he arrived at work for his shift, which on this day commenced at 5am and concluded at 2.30pm. At about 1.30pm he was told about a bus broken down at the Liverpool interchange and he was asked to go to there to effect repairs.
3. He travelled in an easterly direction along Hoxton Park Road in the T-way. At the intersection of Hoxton Park Road and Access Road, he saw the traffic lights governing the intersection and said that the B light in the T-way was white, allowing him to proceed, and he saw a red arrow for the right turn lane beside the T-way. He drove through the intersection. As he entered the intersection, he saw a white car on his left hand side turning in front of his van and he swerved to avoid it. The right hand side of the white car came into contact with the left rear side of his van and his van rolled over.
4. The Plaintiff agreed that the roads in the area in which the accident occurred were busy, and that he was very familiar with the intersection, having driven along Hoxton Park Road many times in the course of his employment. He had also on occasion turned right from Hoxton Park Road onto Access Road.
5. The Plaintiff denied that the B light facing him was red and that he had mistakenly drove through it.
6. The Defendant was driving with her brother, Gabriel Halwagy, east along Hoxton Park Road intending to turn right into Access Road.
7. The Defendant too was familiar with Hoxton Park Road and the intersection off to the right to Access Road, having made that trip on a number of occasions.
8. The Defendant said that as she approached the intersection, the round traffic light was green and the right turn arrow was red. She was the first car at the intersection and stopped on the line.
9. The Defendant gave several accounts of the circumstances of the accident.

27 May 2018 - Account to the police officer

1. After the collision, the Defendant was taken to hospital and released on the evening of 23 May 2018. She did not speak to police at the scene, but on 24 May 2018 went to the police station to tell them "her side of the story". If a note was taken of that account it was not available.
2. On 27 May 2018 the Defendant returned to the police station to be interviewed. She attended in response to a telephone call from Constable Benitez, who was investigating the circumstances of the accident. He told her that the police were considering charging her in relation to the accident. She attended the police station with her brother and her father. Her brother was interviewed separately.
3. The interview with the Defendant was recorded by the investigating officer in his notebook, which was unable to be found. The police officer was unavailable to give evidence. However, an investigator engaged by the insurer of the Defendant interviewed Constable Benitez, who read out to the investigator the contents of his notebook as it related to this accident. That account was included in the investigator's report and formed part of the evidence in the hearing.
4. The interview commenced with the officer asking the Defendant to tell him what had happened. She said: I was - I was driving on Hoxton Park Road. My brother was my passenger. On (sic) the intersection of access road, I stopped on the red light. I was on the right‑turn lane. I was talking to my brother, Gabriel, about my fiancé losing his job. After a few seconds, Gabriel gave me a nudge with his elbow and said, 'Lights are green.' I started turning, keeping an eye out on the driver's side corner of my car. As I was turning, I heard Gabriel say 'shit' as he grabbed me and pulled me towards him. A split‑second later I heard a bang and I see a car flipping.
5. The officer asked the Defendant whether she checked the colour of the traffic light and the Defendant said, "Yes," and added that it was green to go straight ahead, a green arrow and the B light was red.
6. The officer's notebook records that he asked the Defendant whether she checked her right before starting to turn and she said she checked to her right. She was asked what did she see, and answered, "Opposite, a car stopped Red Rooster and Peppers".
7. The Defendant agreed that she did not look behind her or towards the T-Way lane.
8. The officer's account continued: Is it fair to say that (sic) weren't paying attention on the road? To which the Defendant answered: No. I was talking to my brother but when the car started to turn I was paying full attention.

Defendant's evidence at the hearing

1. The Defendant said in her evidence in chief: I was the first car at the intersection. Stopped there for a few moments, and then once they turned green, I looked left and right and that's when I proceeded to turn right.
2. The Defendant said that she waited at the intersection no longer than a minute and then said: So, the lights turned green, which meant the bus lane turned red. It wasn't ‑ the B wasn't white anymore. And then I looked left and right as what I would normally do at an intersection, started turning right and then the crash just happened.
3. The Defendant added that in the time that she was turning, and before the crash, she observed the traffic heading west along Hoxton Park Road was stopped.
4. The Defendant said that while waiting for the lights to change, she was chatting to her brother about her partner wanting to leave his job. She said, referring to her brother: A. He's like, "We can go." And I looked, I'm like, "Sorry, we're just so into the conversation of my husband quitting just before getting married." Q. So, you started to turn right? A. Right. Yes. Q. What did you then experience? A. So, basically once we turned, right, my brother called out, "Shit." And then as soon as the impact happened, my eyes just locked on the window being cracked. And then we were steering to the left so we don't end up underneath the van, because the van was flipping.
5. In cross-examination. the Defendant denied that the only thing that caused her to turn right was her brother's prompt, and further denied that she did not in fact see the green light.
6. In relation to her brother taking hold of the steering wheel, the Defendant said: A. He was holding me. I can't - like I said, I can't tell you exactly - it was five years ago - whether or not he was physically holding me or the wheel. But he was next to me, and he was protecting his sister. Q. And the events of that day, if I were to suggest to you, to this day remain hazy in your mind? A. It will taunt (sic) me until I never have to hear it any more. Q. Well, you can't quite remember how it was that your brother pulled the wheel. You've just indicated that. So your memory can't be that great in connection with the events that day. A. My memory is perfect when it comes to the phasing of the lights and when I turned. I just cannot tell you whether or not he had both hands on the wheel or both hands on me.
7. The Defendant's brother, Gabriel Halwagy, made a statement to Officer Benitez on 27 May 2018, which is not recorded as answers to questions but as a brief narrative which relevantly says: As the traffic arrow turned green on vehicle one, started - vehicle one started turning. Gabriel saw a white van travelling at speed towards vehicle one. As a result Gabriel Holloway (sic) placed his right arm around driver one in attempt to protect the driver. And, which, and with his left hand took hold of the steering wheel and turned it left.
8. In his evidence, Mr Halwagy said that as they approached the intersection with Access Road, the round light for ongoing traffic was green and "our one came to a red light" and so they stopped at the intersection.
9. In reference to the conversation with his sister about her fiancé's work, he said: Yes, as I turned up, I've seen that the traffic lights - go green. And I nudged my sister, and she pretty much went ahead with it. And as we were turning right into Pep's Autos, I've seen on the corner of my eye that there was a van coming on the T-way intersection. And he pretty much just knocked over the righthand side, and as then I was grabbing my sister, and my lefthand side was turning the lefthand side of the steering wheel trying to steer away.
10. He added: Q. Do you recall if you said anything at the time? A. I was just - I was - I was like, "Oh, shit." So like, yeah, I was in shock. We were in shock. Yeah. And she was just screaming. Yeah.
11. Later, in cross-examination, Mr Halwagy said that his sister did not immediately start to turn right once the arrow turned green, but she started to turn once he nudged her. The accident happened almost immediately.
12. There is no mention in the narrative of the police officer about Mr Halwagy nudging his sister to tell her the light was green.

The apology

1. The Plaintiff said that while he was in hospital on the night of the accident, he was with both of his parents when the Defendant's mother and Mr Halwagy came to his room. The Plaintiff said Mr Halwagy said, "It could have been worse if he didn't grab the steering wheel."
2. The Plaintiff said he did not respond and could not recall if Mr Halwagy said anything else.
3. The Plaintiff's mother spoke of this incident and said that the Defendant's mother and brother came into the Plaintiff's hospital room and asked how her son was, and she replied, "Not very good". She said that the Defendant's brother said, "Probably worse if I'm not take the steering wheel." She said that the Plaintiff said nothing.
4. Mr Halwagy said he went to see the Plaintiff who "apologised to him" and said, "Everything was all good". Mr Halwagy said the Plaintiff said, "I'm sorry mate for what happened." Mr Halwagy did not recall the Plaintiff's parents being in the room at the time and said he was the only person there. He did not mention his mother being there.
5. It was suggested that this conversation was a recent invention by Mr Halwagy. He agreed that he did not tell the police about the Plaintiff's apology when he went in to be interviewed. He said the police officer did not ask him whether he had visited the Plaintiff in hospital and thus he did not tell him about the conversation. He said he did not know that he and his sister had attended the police station to be interviewed on 27 May 2018 because the police were considering charging her. He said that he was not asked anything about what had happened after the accident and so did not volunteer the information.
6. I do not accept Mr Halwagy's account of what was said in the hospital. Both the Plaintiff and his mother spoke of Mr Halwagy telling the Plaintiff how he had prevented the accident from being worse by taking control of the steering wheel, a point he made in his police statement on 27 May 2018. I accept the Plaintiff and his mother's evidence that the Plaintiff did not respond to what Mr Halwagy had said. It was never suggested to the Plaintiff's mother that she and her husband left the Plaintiff alone in the room with Mr Halwagy. Nor was it suggested to the Plaintiff's mother that the Plaintiff apologised to Mr Halwagy. Mr Halwagy makes no mention of his mother being present.
7. It was not suggested to Mr Halwagy that the conversation was an attempt to convey an acceptance of responsibility by the Plaintiff for the accident. It is difficult to understand why, when an apology was apparently made some five days before, Mr Halwagy did not tell the police about it. It's importance to the issue of who was at fault in the collision would have been obvious. However, in the result, little turns on it.
8. Counsel for the Plaintiff argued that if it was found that this conversation did not take place, it renders the whole of Mr Halwagy's evidence unreliable, and I would, therefore, not accept his account of how the accident occurred. I do not accept that submission. Mr Halwagy's evidence in other respects is broadly consistent with his sister's account and their accounts to the police shortly after the accident. That I do not accept the conversation occurred does not, in my view, render the balance of his evidence unreliable.
9. The Plaintiff denied he was tired when driving to the Liverpool bus depot because it was at the end of his shift, and there is no evidence to suggest that he was. It was not suggested that he was speeding or that he was distracted by anything going on around him. He said he drove through the intersection with the white B light.
10. Both the Defendant and her brother said they were talking in the car about her fiancé either losing or leaving his job. She said in evidence that since they were soon to be married, she did not want her finance to be out of work at that time. It is tolerably clear that during the conversation they were looking at each other. The evidence of the Defendant and her brother is to the effect that it was he who looked up from the conversation and saw a green light and nudged her to go. He said that on being nudged she started the turn, and she said in her police statement that she started turning when he told her to, he said she "pretty much went ahead with it" (the right turn).
11. The Defendant further said that she commenced turning and a "split second" later she heard a bang and saw the Plaintiff's van turning over. Mr Halwagy described his sister as screaming.
12. While the Defendant said in her evidence that when her brother nudged her and told her the light was green, she looked left, right and in that time observed that the cars travelling west on Hoxton Park Road were stopped, and that while she could not remember her brother taking hold of the steering wheel, her recollection of the phasing of the lights was "perfect", it is clear from her statements that the perfection of her recollection accrued over time. However, in my view, the probability is that she is incorrect.
13. I regard the statements of the Defendant and her brother made immediately after the accident to be a more accurate reflection of what happened, and importantly, her answer to the police officer that she did not look at the T-way light when she started the turn.
14. I am satisfied that it is more probable that the Defendant's conversation with her brother caused her to be distracted while waiting for the light to turn green, and that she turned right when nudged by her brother, turned in error, not seeing that the arrow remained red.
15. I find that the Plaintiff did not travel through the intersection against the red B light and was not, therefore, responsible for the accident.
16. It follows that I find It is more probable than not that the accident occurred through the Defendant and her brother being distracted, and she turning right on his mistaken view that the right hand turn was green and turned in front of the Plaintiff's van that had right of way. The Defendant thus failed to pay proper regard to the traffic signal and breached her duty of care to the Plaintiff, which was the cause of the accident.

The Plaintiff's injuries

1. Following the accident, the Plaintiff was taken to hospital by ambulance having been cut out of the van because the doors could not be opened. His head was immobilised in a brace and he was strapped to a board. He described it as being uncomfortable, and later the Plaintiff was fitted with a rigid neck brace. The Plaintiff said, while attached to the board and with his head restrained, he had pain in his arms and his head was swollen. When he saw the degree to which it was swollen, he said he "freaked out", thinking he was disfigured.
2. The Plaintiff was discharged after a few days to the care of his general practitioner, Dr Ali, and a consultant neurosurgeon, Dr Darwish.
3. On being released, the Plaintiff had to continue wearing the rigid collar except when bathing. He kept the rigid neck brace on while he slept. After being told he could safely remove it, the Plaintiff said he continued to wear it a little bit longer because his neck muscles felt weak. He continued to sleep in it even though it was uncomfortable and affected his sleep. He said his sleep, in the nine weeks after being discharged while having to wear the collar, was "atrocious" and said he was tired, moody, depressed and angry. In all, the Plaintiff wore the collar for about nine weeks after being discharged from hospital.
4. For the first two weeks after his discharge, the Plaintiff's father helped him remove the hard collar and replace it with one in which to shower, and helped him wash himself for a short time. The Plaintiff said he felt like an infant. Eventually, after about five weeks, he managed to swap collars without his father's assistance.
5. The Plaintiff had physiotherapy after being discharged from hospital.
6. Some weeks after the accident, the Plaintiff and his father travelled to Greece as part of long-standing arrangements. The Plaintiff said that while away his father continued to assist him to shower and also in washing, cooking and seeing that the Plaintiff had his medication.
7. The Plaintiff said that since the accident he has near constant pain in his neck, head and right and left arm, lower back and right leg. He is prescribed Panadeine Forte and Nurofen, which he continues to take, some days more than others, depending on the level of pain in which he finds himself. He described having "flare ups" and said if he wakes up in pain, or has slept in a contorted position, he takes pain medication. He said he has bad sleep because of the pain.
8. The Plaintiff continues to see his general practitioner and neurosurgeon.
9. The Plaintiff said he is depressed because he can now not do many of the things he used to do before the accident. The Plaintiff lives with his parents, and described his frustration at seeing his father doing tasks around the place that he used to do for him such as moving the lawn. He said it was his job to take care of them.
10. The Plaintiff has returned to driving, but said that he finds it uncomfortable and he cannot turn his head to the right as he did before. He said that sitting down for a long period of time causes him to have the sensation of pins and needles in his lower back and leg.

Dr James Bodel

1. As a result of the accident, the Plaintiff suffered a fracture of the C2 vertebral body, which was described by Dr Bodel, the Plaintiff's expert specialist orthopaedic witness, as a potentially life threatening injury. This injury was treated conservatively with the rigid collar that the Plaintiff wore. The Plaintiff also suffered aggravation of a pre-existing but asymptomatic degenerative change at the C6/7 of his spine.
2. In Dr Bodel's most recent report of 6 April 2021, he described the Plaintiff's then complaints as being pain in the base of his neck and over the top of his right shoulder. Numbness and tingling radiating down the right arm to the middle and ring finger of his right hand, pain and stiffness in the region of the left shoulder, lower back pain aggravated by prolonged sitting, bending, twisting or lifting, and persisting instability in the region of the right knee.
3. Dr Bodel identified his ongoing disability as pain and stiffness in the neck with numbness and tingling in the right arm, intermittent numbness and tingling in the left arm and also pain in the lower part of the back. He noted that the Plaintiff complained of frustration and agitation which affected his emotions.
4. Dr Bodel diagnosed him as having a fracture of the C2 vertebral body, mild C7 nerve root irritability in the right upper limb, possible ulnar nerve pathology in the left arm, soft tissue injury to the lower part of the back and psychological sequelae.
5. The Plaintiff's condition has stabilised and Dr Bodel did not believe that the Plaintiff could return to his former employment. He said that the Plaintiff's prognosis was guarded, particularly in relation to the neck injury.
6. Dr Bodel agreed that, radiologically, the C2 fracture had healed satisfactorily without displacement, however, he said that the Plaintiff has symptoms from the fractured C2.

Dr Anthony Smith

1. The Defendant obtained an expert opinion from Dr Anthony Smith, an orthopaedic specialist.
2. Dr Smith said that if the Plaintiff fractured the C2 vertebral body, it would appear to have healed. Equally, he could have aggravated his moderately advanced cervical degenerative disease at C6/7 and could have sustained soft tissue injuries.
3. In short, Dr Smith said that whatever injuries the Plaintiff sustained in the accident, he had made a complete recovery and he was embellishing his symptoms. Dr Smith said that the significant restriction in neck movement would not be expected as a result of the C2 fracture and that the degenerative change at C6/7 would have no real effect on neck flexion and extension. He said that there was no physical basis for the weakness in his upper limbs nor any organic illness that could produce the pattern of weakness complained of by the Plaintiff. He concluded that the Plaintiff was embellishing his symptoms.

The Joint Expert Report

1. The doctors conferred and produced a joint report.
2. In that report, the experts agreed that before the accident, the Plaintiff had pre-existing musculoskeletal conditions which were not interfering with his ability to perform his work as a diesel mechanic, and they do not appear to be contributing to his present incapacity. They agreed that he had sustained a C2 fracture in the accident.
3. Dr Smith maintained his opinion that the Plaintiff made a complete recovery within six months of the accident and could have returned to his pre-accident occupation. Dr Bodel was of the view that the Plaintiff has made progress in his recovery and has improved over time, but said that the injury has impacted his capacity for employment.
4. Dr Bodel did not agree that the Plaintiff's complaints were confected nor that there was no basis for them. He said that the Plaintiff's fracture and aggravation of the pre-existing degenerative changes were due to the moderate to high speed sudden deceleration in the accident and that he cannot return to his pre-accident employment.
5. As to Dr Smith's opinion that the Plaintiff's complaints of pain were not anatomically consistent, Dr Bodel said that he took a more global assessment of the Plaintiff and found that he had suffered a soft tissue injury and fracture and aggravation of the pre-existing degeneration involving the whole of the neck and left upper limb. He was satisfied that the clinical presentation of the Plaintiff was due to genuine pathology.
6. On this point of whether the Plaintiff was confecting or embellishing his symptoms, it is important to note that it was never suggested to the Plaintiff in cross-examination that this was the case.
7. Dr Darwish, a neurosurgeon, has been consulting with the Plaintiff's general practitioner since the accident and has produced a number of reports to the general practitioner, Dr Ali, the basis of which is the acceptance of the Plaintiff's complaints of pain and stiffness. Further, Dr Ali did not apparently doubt the genuineness of the Plaintiff's complaints nor the association with the accident. The report of the Vocational Assessment of the Plaintiff conducted at the Defendant's request clearly accepts the Plaintiff's accounts of disability and "ongoing dysfunction".
8. I do not find that the Plaintiff is embellishing his symptoms nor that he has made a full recovery from his injuries. But for the opinion of Dr Smith, the medical evidence, both expert and treating, is that the Plaintiff's present disabilities are genuine, continue and have impeded his return to his former occupation.

Non-economic loss

1. The Plaintiff's injuries and continuing disabilities have impacted his life significantly. The work he so clearly enjoyed has been lost to him as has his recreation of building and working on car engines with his friend. The Plaintiff says that he is in constant pain, with some days being worse than others depending on what activities he has done. He cannot help his parents around the house and feels distressed that he cannot help them as he has in the past.
2. While his pain and restriction of movement may improve, Dr Bodel said that the Plaintiff's condition was stable and that is a condition in which he is impaired and in pain. He said he is depressed and sad.
3. The measure of non-economic loss here is determined by reference to a statutory maximum, at present $620,000: Motor Accidents (Determination of Non-Economic Loss) Order 2023 (NSW). For the Plaintiff, it was argued that his non-economic loss should be reflected as 40% of that figure, that is $248,000. While there is no doubt that the accident has had a significant impact on the Plaintiff and his life, I am of the view that an appropriate figure to represent his non-economic loss is $186,000. In coming to that figure, I take into account that Dr Bodel believes that with increasing fitness the Plaintiff's pain symptoms may abate and that the Plaintiff has found alternate employment which he clearly enjoys and which provides him with a career path. To an extent, albeit not as fully as before, he still can enjoy car racing with his friend.

Economic loss

1. At the time of the accident, the Plaintiff was a diesel mechanic working on buses for Transit Systems Australia. After leaving school at year 12, he competed a Heavy Vehicle Mechanic Course at TAFE and obtained a number of ancillary certificates. While studying he worked part-time.
2. Having completed his training, the Plaintiff worked in the field of diesel mechanics with short pauses when he worked in other types of employment. He started work with Transit Systems Australia in 2010.
3. The Plaintiff described the work involved in diesel mechanics as heavy, involving fitting heavy parts into awkward spaces.
4. While working at Transit Systems Australia, the Plaintiff also did cleaning work for the same company at various sites outside his usual hours as a mechanic.
5. It was clear from the Plaintiff's evidence that he enjoyed the work at Transit Systems Australia.
6. In his spare time, the Plaintiff built race cars and race motors with a friend who owned a race car and they would attend the car races together. The Plaintiff said he would help out with the mechanics of the car at the races. He would spend three hours, twice a week, doing that. He said it was enjoyable. While he still attends the car races and helps out, he no longer can help rebuild the car motor.
7. The Plaintiff has not returned to his previous work as a diesel mechanic. Since being unable to return to his former work, the Plaintiff has undertaken retraining and rehabilitation to find different work.
8. He has obtained TAFE qualifications in diesel mechanics in training and assessment. He is presently employed at TAFE as a disability assistant (assisting students learning the trade of diesel mechanics who need additional support) and he can assess people who have not yet been licenced in that trade and are doing the course to become licenced. He has also obtained a youth work certificate as an adjunct to the TAFE work in the learning of the trade in diesel mechanics.
9. He is presently working 18 hours each week at TAFE, 6 hours on three days. He said that the teaching duties, walking, sitting, standing and moving around campus give him pain in the neck, arm and head. He finds that if he is sitting for a prolonged period of time with a student, explaining a task or helping, that causes an increase in pain in his neck. The Plaintiff said that by taking a day off between teaching days he finds he can recover. He said that he would like to increase his hours of work and said that it would depend on the time and how he feels. He said he would consult with his doctors about increasing his work hours.
10. Given that the Plaintiff had pre-existing degeneration at C6/7, the experts were asked to express an opinion as to whether, but for the accident, the Plaintiff would have had to stop work as a diesel mechanic. Dr Smith's view was that there was no impediment to his return to his former employment, however he said that given the Plaintiff's age, late 40s, it would have been a good idea for him to find different employment, such as the TAFE work he was presently undertaking.
11. Dr Bodel did not accept the proposition that the degenerative change in the Plaintiff's back would have inevitably become symptomatic and cause him to cease work as a diesel mechanic. He said that the amount of degenerative change and the onset of symptoms as a result do not run in parallel. Dr Bodel pointed to the fact that at the time of the accident, the Plaintiff was in his mid-40s doing heavy work both in a workshop environment and in the field without symptoms. He agreed that the type of work being undertaken by the Plaintiff was a stressor that might cause otherwise asymptomatic degeneration to become symptomatic. Dr Bodel rejected the suggestion that the nature of the Plaintiff's work, on top of the degeneration, would have inevitably led to the development of symptoms. He said it was possible but not inevitable. Nor did he agree that development of symptoms was probable had the Plaintiff continued to work as a diesel mechanic.
12. As to his present occupation, Dr Bodel thought that with appropriate continued care, medication and review by his general practitioner, the Plaintiff was working at capacity and said that if his present work hours had been certified by his treating doctors, then the Plaintiff should abide their opinions. Whether he can increase those hours would depend on whether his physical fitness improves and, if so, hopefully his symptoms will diminish.
13. The Defendant argued that based on the vocational assessment of the Plaintiff conducted by Ms Liz Atteya of Vocational Capacity Centre, there was a range of occupations available to the Plaintiff which would provide him with employment and be appropriate to his disabilities. The report observes that the Plaintiff is strongly motivated to pursue a role as a vocational education teacher and said that his vocational history, cognitive skills and abilities position him well to undertake that role. It continued and said that he could broaden his options for employment, for example, drone pilot, mechanical engineer, draftsperson and caravan salesperson, and it was said he could work at these occupations for 30 hours per week.
14. The cross-examination of the Plaintiff was focussed on increasing his hours at his present position rather than exploring whether he would or could become a drone pilot. The Plaintiff agreed that if he was offered more hours to work at TAFE, he would accept them if he could cope physically with the additional load. This evidence is consistent with the Plaintiff's evidence generally that he is looking to do further certificate courses to supplement the work he is already doing. It is important too to bear in mind that at present he is working 18 hours per week, which at this time is on the recommendation of his neurosurgeon.
15. There is insufficient evidence to conclude that it is probable that the Plaintiff will move to working full-time at his present occupation given the time that has passed since the accident. However, it is reasonable to conclude that he may well increase his hours of work over time, although falling short of full-time work.

Past Economic Loss

1. The parties have agreed on what the Plaintiff would have earned at his previous occupation but for the accident (I note in passing that there is a mathematical slip in the Plaintiff's calculations dealing with the past loss from 1 January 2023 to 16 February 2023, being 6.7 weeks, which is incorrectly said to be $90,045 rather than $9,045, which is the figure included in the total in the Plaintiff's schedule).
2. I accept the Plaintiff's calculations that from the date of accident until the Plaintiff commenced working at TAFE on 17 February 2023, he had a total loss of income of $319,033.
3. There was a dispute between the parties as to the continuing economic loss suffered by the Plaintiff being his net weekly earnings of $1,350 less his weekly earnings at TAFE.
4. The Plaintiff claimed a weekly net loss of earnings from 17 February 2023 of $810 (being the "but for" earnings of $1,350 net per week, less the Plaintiff's average weekly earnings of $540 net per week). The Defendant disputed the calculation of the Plaintiff's present net weekly earnings and contended that the more accurate calculation was based on his present hourly rate of $46.05 per hour amounting to $721.90 per week. The difference being that the Plaintiff's calculations reflected the Plaintiff not being paid during school holidays, whereas the Defendant's calculations were calculated throughout the working year. There was no evidence to support the assertion that the Plaintiff did not work during school holidays. Thus, the measure of the Plaintiff's present economic loss will reflect a difference between his "but for" earnings and $721.90 per week amounting to a net loss of $628.10. In the period between 17 February 2023 to the date of hearing, 23 October 2023, this represents a net loss of $22,297.55
5. The Plaintiff's past economic loss then is $341,330.55.
6. Past loss of superannuation at 11.75% is $40,106.33.

Future Economic loss

1. Turning to the future, the Plaintiff claims the same loss continuing until retirement, that is, he will continue to work 18 hours per week in his present employment. However, the Plaintiff's evidence was that if he could manage it, he would work for longer hours. Dr Bodel thought that if the Plaintiff became physically fitter, his symptoms might abate to a degree.
2. In all of the circumstances, it is probable that the Plaintiff may well be able to work longer hours at TAFE, especially since he wishes to add a further certificate in counselling to augment the work he does in the mechanical course. However, the evidence does not admit of any precision as to whether and by how much his hours might increase nor when that might occur. In order to take that possibility into account, I propose to increase the deduction for vicissitudes from the suggested 15%, sought by the Plaintiff, to 20%.
3. Therefore, the Plaintiff's continuing economic loss is $628.10 per week x 646.2, which is $405,878,22, less 20%, which equals $324,702.57.
4. Future loss of superannuation is $324,702.57 x 14.57%, which comes to $47,309.16.
5. The amount to be repaid to the Plaintiff in relation to Fox v Wood is agreed at $30,878.
6. The damages for economic loss are thus: $784,326.61.
7. Taking into account the damages for non-economic loss of $186,000, the total damages are $970,326.61.
8. There will be verdict and judgment for the Plaintiff in the sum of $970,326.61.
9. The Defendant to pay the Plaintiff's costs as agreed or assessed.

Orders

1. The orders of the Court are: 1. Verdict and judgment for the Plaintiff in the sum of $970,326.61. 2. The Defendant to pay the Plaintiff's costs as agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2023