New South Wales District Court CITATION: Damm v Damm [2008] NSWDC 64 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 1- 4 & 7 April 2008 EX TEMPORE JUDGMENT DATE : 11 April 2008 JURISDICTION: Civil JUDGMENT OF: Sidis DCJ DECISION: Stood over for parties to address on outstanding issues. CATCHWORDS: MOTOR VEHICLE ACCIDENT - impact with cow on highway - cow escaped from TSR - liability of driver, owner of cow and local Rural Lands Protection Board - apportionment - whether RLPB under duty of care - defences available to RLPB under Civil Liability Act 2002 - assessment in context of pre-existing brain damage Civil Liability Act 2002 LEGISLATION CITED: Rural Lands Protection Act 1989 Motor Accidents Compensation Act 1999 David Andrew DAMM (Plaintiff) PARTIES: Kerry Peter DAMM (1st defendant/3rd cross defendant/5th cross claimant/6th cross claimant) L H WILSON & CO PTY LTD (2nd defendant/1st cross defendant/2nd cross defendant/3rd cross claimant/4th cross claimant/5th cross defendant/) HUME RURAL LANDS PROTECTION BOARD (3rd defendant/1st cross claimant/2nd cross claimant/4th cross defendant/6th cross defendant) FILE NUMBER(S): Albury 61/03 B D Dooley SC (Plaintiff) COUNSEL: M T Vesper (First Defendant) R Royle (Second Defendant) R J M Foord ( Third Defendant) Adams Leyland Lawyers (Plaintiff) SOLICITORS: Ferguson Lawyers (First Defendant) Sparke Helmore (Canberra) (Second Defendant) Gibney & Gunson ( Third defendant) JUDGMENT 1 Davey Andrew Damm claims that he was injured when the truck in which he was travelling struck a cow on the Riverina Highway west of Howlong at about 6am on Sunday 24 September 2000. 2 The first defendant, Kerry Damm, is the plaintiff's father who was the owner and driver of the small Mitsubishi Canter truck. 3 The second defendant is L H Wilson & Co Pty Ltd, the owner of the cow. 4 The third defendant is the Hume Rural Lands Protection Board which controlled and managed the Moorefields travelling stock reserve on Crown lands to the west of the point at which the plaintiff's accident occurred. 5 Each of the defendants cross claimed against each of the others. 6 The issues were: (1) whether any of the three defendants were liable in negligence to the plaintiff. (2) if more than one was liable, the proportions in which liability was to be allocated amongst the defendants. (3) the extent to which the plaintiff suffered injury in the accident, having regard to his pre-accident medical history. (4) the extent to which he is to be compensated for non-economic loss, loss of income earning capacity, out of pocket expenses and domestic assistance. 7 The claim made in the particulars for fund management has been abandoned. 8 The accident occurred when the plaintiff and his parents were travelling from their home at Balldale to Albury in the early hours of 24 September 2000. The first defendant was driving, Mrs Damm was seated in the centre seat and the plaintiff in the left side passenger seat. They were all wearing their seatbelts. 9 They left home shortly after 5am. The early introduction of daylight saving time by reason of the Sydney Olympic Games meant that it was dark at that time of the morning. The plaintiff and his parents said that at the time of the accident there was a glow of morning light on the horizon to the east. 10 They travelled from Balldale to the Riverina Highway and then east towards Howlong. The speed limit on the Riverina Highway at the site of the accident was 100 kilometres an hour. The first defendant said he was travelling at ninety kilometres an hour, that being the maximum speed at which he could drive his truck. 11 As the truck approached a left hand bend that is about 400 metres east of the entry to the Moorefields travelling stock reserve, the parties in the truck saw what was initially described as a single flashing light. The first defendant said he took his foot from the accelerator and slowed the speed of the truck to about seventy kilometres an hour. The plaintiff thought that he slowed to eighty kilometres an hour. 12 The first defendant said he understood the flashing light to be the headlight of a motorcycle alternating between high and low beam. It ultimately transpired that it was the single operating headlight on a motor car. The plaintiff and Mrs Damm confirmed that there was one headlight only on the car. 13 The defendant said that, upon rounding the left hand bend and noticing the oncoming light, he switched the headlights on the truck from high to low beam. He said he thought that the oncoming driver was flashing his headlight to indicate that he thought that the lights on his truck was still on high beam. The first defendant in response flashed his lights at least twice. 14 The first defendant said he then noticed two cows on the road. One was directly in front of him and running at full gallop from the right to the left. The second cow was to his right. He said he put his feet on the brake and the clutch at the same time but they were of no assistance because of the proximity of the truck to the cow at that point. He told his passengers to hold on as he struck the cow. 15 The first defendant said the next thing he knew was that they were airborne looking up at the stars. The truck landed with some force further east on the highway. 16 The cow was a Poll Hereford described as brownish red in colour with white facial markings. There was evidence that there was some mist in the vicinity at the time of the accident but the first defendant said that this had not affected his visibility and that he was able to see the lines on the road and the oncoming flashing light. 17 The flashing light also alerted the plaintiff and Mrs Damm to the need to look out. Both said they were looking around for the reason why the oncoming driver was flashing the light. The plaintiff said he saw nothing until he saw a cow directly in front of the truck. He indicated on a drawing that the cow crossed in front of the truck at an angle. When he saw it, it was about one metre away. 18 He said the first defendant did not brake, sound his horn or flash his lights before striking the cow and becoming airborne. 19 Mrs Damm said the other vehicle was approaching at some speed. She said she was looking to the right and the left in response to the flashing light and she saw the cow's face directly in front of the centre of the windscreen about a metre away. In cross-examination she said that she could see two small truck lengths ahead because the lights were dim. 20 It was not disputed that the cows were the property of the second defendant and that they had been agisted on the Moorefields travelling stock reserve from which they had escaped onto the Riverina Highway. 21 A site inspection was undertaken on 1 April 2008 in the course of which the following features were noted. 22 Part of the Kismet Farm operated by the second defendant borders the River Murray. To the west also bordering the river is a motel and caravan park known as the Kismet Caravan Park. Further to the west also bordering the river is the Quat Quatta State Forest. This is a picturesque area available to the public for recreational use including fishing and overnight camping and for the agistment of cattle. All such uses required a permit. 23 The Kismet Caravan Park borders the Moorefields travelling stock reserve which is managed by the third defendant. Access to the caravan park and to the travelling stock reserve and the State forest from the Riverina Highway is provided through adjoining gates. A bitumen road provides access to the caravan park. A gravel road runs along the eastern boundary of the travelling stock reserve with gates in position at the Riverina Highway and the State forest boundaries. The road provides access to the travelling stock reserve, the State forest and a residence on an adjoining property. Cattle grids have been installed at each of the gates. 24 At the time of the accident there was a grid only at the gate providing access to the State forest. The grid at the highway gate was installed shortly after the plaintiff's accident. 25 It was not disputed that the cow escaped from the travelling stock reserve through the gate at the highway boundary. It was not known who left the gate open. 26 The general layout of the various properties and of the travelling stock reserve is shown in exhibit 3D9. 27 There is a gentle curve in the highway from the gate to the travelling stock reserve for a distance of about 400 metres. There is then a straight section of highway for a distance variously estimated to be between one and two kilometres leading to a double S bend. Only two trees are growing on the road reserve. They are positioned about 500 metres east of the gate to the travelling stock reserve on the southern side of the highway. It was in the vicinity of these trees that the accident occurred. ISSUE 1 - LIABILITY The First Defendant 28 The first defendant, the plaintiff and Mrs Damm all acknowledged the fact that kangaroos and stock may suddenly appear on rural highways. They also said that they did not know why the oncoming car was flashing its light but understood that it indicated that there was some sort of problem or danger ahead of them. Among the possibilities they referred to were that there were police ahead or a motor vehicle accident, but they expected that the incident would be to the east of the approaching vehicle. 29 They all said that the cow that was struck appeared suddenly in front of the truck and was not visible, although they were looking around, until it had reached the centre of the truck. 30 It was asserted by the plaintiff and the second and third defendants that the first defendant had been in breach of his duty of care to the plaintiff for the following reasons: (1) He had switched to low beam immediately upon seeing the oncoming motor vehicle. It was asserted that he should have remained with his lights on high beam because he apprehended that there was a problem ahead of him. The first defendant explained that he did so as a matter of courtesy and because he believed the oncoming driver was flashing his lights to indicate that he believed that the first defendant was driving on high beam. I accept that this was a reasonable response in the circumstances where the first defendant had no idea why the oncoming driver was intermittently flashing his headlight. (2) The first defendant was looking directly ahead and concentrating on the light of the oncoming motor vehicle rather than looking around to ascertain what the danger was. Again I consider it not unreasonable to expect that whatever hazard was the subject of concern to the oncoming driver was likely to be on the road itself. Further, the plaintiff and Mrs Damm both said that they were looking around and that they saw nothing until the cow appeared directly in front of the truck. (3) The statement recorded by police, Exhibit 3D1, indicated that the first defendant had in fact seen the cows for some time before they ran in front of the truck. The words recorded are: It was dark and a light mist. I noticed a car about 800 metres in front of me flashing a light at me. I started to back off to about seventy kilometres. I kept watching this light, trying to figure out what it was. I thought it was a motorbike at first, then I realised there was cattle on the road. Two Hereford cows ran across the road from my right to the left side of the road. I couldn't do anything but brake harshly. The first cow I hit straight on. I wiped the front of the truck out. I saw the cattle, braked and hit the cow within seconds. In my view, this statement could not be read as indicating that the first defendant had the cows in view for longer than the one to two seconds he claimed. I refer once more to the evidence of the plaintiff and Mrs Damm that the cow was not visible until it was directly in front of the truck. (4) The first defendant was travelling too fast in circumstances where his headlights were on low beam. The first defendant accepted that with his headlights on high beam he would have visibility of the road and its surroundings for up to 100 to 120 metres and that had he seen the cattle from that distance he could have stopped the truck. He agreed that on low beam his visibility was restricted to twenty to thirty metres with the light thrown from the centreline of the road to his left. He agreed that at a speed of seventy kilometres an hour he could not stop the truck in the distance of the thirty metre range provided by the headlights. He agreed that an appropriate speed at which to bring the truck to a halt within that distance was thirty to forty kilometres an hour. He did not take any action to slow the truck to this speed. He acknowledged that this was of particular necessity because of the difficulties he described in manoeuvring the truck such that he would not be able to swerve to avoid an obstruction that suddenly appeared in front of him. I find that in this aspect of his driving, the first defendant was in breach of his duty of care to the plaintiff. He was aware of the potential hazard ahead and it was therefore necessary that he be in a position to deal with that hazard whatever it might have been. Continuing to drive at a speed of seventy kilometres an hour in those circumstances in my view put the first defendant in breach of his duty. 31 I find the first defendant liable to the plaintiff in negligence. The Second Defendant 32 Graham Wilson, a director of the second defendant, gave evidence on its behalf. He is fifty-nine years old and has lived on Kismet Farm for the whole of his life. The property has been in his family since 1912. It is a 900 acre property dissected by the Riverina Highway. 33 The second defendant's business is that of breeding and grazing cattle and sheep. In September 2000 the farm was carrying a herd of Poll Hereford cows. With the appropriate permit, sixty of those cows were grazing on the State forest when Mr Wilson was alerted to an impending flood on the river. 34 Mr Wilson had established a practice with the ranger employed by the third defendant, Mr Alan Scammell, of securing permission by telephone to move the cattle to the travelling stock reserve. When the cattle were moved off the travelling stock reserve, Mr Wilson's practice was to inform Mr Scammell of the numbers of cattle involved and the number of days during which they remained on the reserve. Mr Scammell then prepared and forwarded an invoice for the relevant fee which Mr Wilson paid. 35 Exhibit 3D8 is the grazing permit prepared by Mr Scammell in response to the conversation between them on 13 September 2000. It provided for sixty cows and calves at a rate of two dollars per head. 36 On 23 September 2000, Mr Wilson moved all but two cows and their calves to a paddock on the northern side of the highway. He decided to leave these cattle because the cows had only recently calved. He said newborn calves were reluctant to leave the area in which they had been deposited by the cows except to stand to feed. Moving them therefore was fraught with difficulty and upset for both the cow and the calf. These were the cattle that were present on the highway in the early morning of 24 September 2000. 37 Mr Wilson agreed that he was aware of the potential serious consequences to members of the public if cattle escaped onto the Riverina Highway. He said he had been unaware of any incident in which cattle had escaped from Kismet Farm. A cattle grid was installed at the main entrance to the Kismet Farm. This was a gate, he said, that was regularly used and the grid was therefore installed as a matter of convenience and safety. 38 Mr Wilson said, It's obviously good protection for stock getting on the road. 39 Mr Wilson was aware of one occurrence when cattle had escaped onto the highway through the gate to the travelling stock reserve. He believed that this had occurred in the 1980s and had involved cattle belonging to another farmer that were grazing on the State forest. It appeared that the gates had been left open at both the State forest and the highway entrance to the travelling stock reserve. Following this incident, a cattle grid was installed at the State forest entrance gate. 40 Mr Wilson said that Mr Scammell attended to the necessary maintenance of fences on the travelling stock reserve but that if he noticed a problem with the fence he would occasionally undertake a repair on a voluntary basis. 41 Mr Wilson was aware of the multiple uses of the road leading through the travelling stock reserve leading to the river. He said he was aware that it was occasionally left open by persons uninitiated in the ways of the land. He said he regularly checked that the gate was closed, sometimes up to twenty times per day, when he had cattle on the travelling stock reserve. 42 On the evening of 23 September, he had checked and was satisfied that the gate to the highway was closed and that the cattle had been secured. 43 Mr Scammell confirmed Mr Wilson's evidence of their arrangements for the second defendant's use of the travelling stock reserve. 44 For the second defendant it was argued that it was not liable because although the risk of injury from cattle escaping was foreseeable, the risk was not of such magnitude that a reasonable person in the second defendant's position would consider it necessary to take preventative action; there had been only one prior occurrence; the second defendant was not responsible for the care and maintenance of the travelling stock reserve; and the second defendant, through Mr Wilson, regularly checked that the gate was closed. 45 It was further argued that, in this instance, the gate had been left open by a third party and the only practical and effective means of containing cattle within the reserve would have been the installation of a cattle grid which was outside the control of the second defendant. 46 Authority was referred to in support of these propositions. 47 I do not accept that a reasonable person in the second defendant's position would not consider it reasonable to take action in response to this foreseeable risk for the following reasons: (1) The risk of injury to the users of the relatively busy Riverina Highway was significant. The speed limit on the highway was 100 kilometres an hour. There were no street lights and there was therefore a potential for a high speed impact with consequent serious injury. Mr Wilson said he had not considered erecting a sign alerting road users to the presence of cattle on the reserve and exhorting them to ensure that the gate was closed. He agreed that the travelling stock reserve covered a large area and it would not necessarily be apparent to recreational users when stock was moved onto the reserve which was only infrequently used. He agreed that it was not a practical proposition to supervise cattle in a reserve on a twenty-four hour basis. He said that if that had been a condition of the issue of the permit he would not have moved his cattle there. Mr Wilson was asked to consider the option of a self-closing gate. He said he was aware of such gates which were solar powered with back-up batteries and could be installed at a cost of between $1,000 to $2,000. (2) Mr Wilson was aware of an earlier incident that had resulted in the installation of the grid at the State forest gate. This incident had been the result of a gate being left open, probably by recreational users who were also using the gate at the highway entrance. Exhibit 3D10 was a facsimile message from Mr Scammell to an officer of the State forest seeking a contribution in respect of the installation of the grid after the plaintiff's accident in which he stated: This has become necessary as it is near impossible to have stock on the reserve without the gate into the Riverina Highway being left open by visitors to the Quat Quatta State Forest and the river for fishing, et cetera. Thus there was evidence of increased frequency of use of the travelling stock reserve and the State forest for recreational purposes. This increased use could not have gone unnoticed by Mr Wilson who lived and farmed on the second defendant's property. (3) Mr Wilson had taken steps to deal with the risk at the entry to the second defendant's property, Kismet Farm, by the installation of a grid because for the very reason that this gate was used regularly by his family and visitors the grid had been installed for purposes of convenience and safety. (4) I do not accept that the second defendant was powerless to take steps to deal with the risk. There were two possibilities. He had a good working relationship with Mr Scammell and he could have raised with him the need for the installation of the grid at the highway entry. Further, he could have implemented a system of placing his own sign on the gate at times when cattle were moved onto the travelling stock reserve. There was evidence that this could have been achieved at very moderate cost. Mr Scammell said that such a sign would have prompted ninety per cent of users to the need to close the gate. Mr Scammell said that many farmers used their own initiative by placing a sign on the gate when they moved stock onto a reserve. 48 I thus reject the submission that the second defendant did all that was reasonable in the circumstances and I find the second defendant liable to the plaintiff in negligence. The Third Defendant 49 The third defendant attempted to mount an argument that its obligations in respect of travelling stock reserves were limited to those set out in s 81 of the Rural Lands Protection Act 1989 which it was agreed governed the third defendant's activities in 2000. 50 It claimed that the power was limited therefore to taking appropriate measures to prevent unauthorised persons, animals and vehicles from trespassing on the reserve. It was said therefore that containment was not within the scope of the powers conferred upon the third defendant by the legislation and it argued that the provisions of the Act and regulations imposed upon the second defendant the obligation to contain cattle within the travelling stock reserve. 51 This argument overlooked the provisions of s 9 of the Act dealing with Functions Generally. Section 9 specifically included the care, control and management of travelling stock reserves and camping reserves within the third defendant's district. Section 81 deals with Specific responsibilities of a board in respect of travelling stock reserves. Subsection (1) opens with the words: A board that has control of a travelling stock reserve is responsible for the care and management of the reserve and in particular is responsible for ….. . 52 The general provisions in s 9 lead me to the conclusion that the general functions of the third defendant extended to care, control and management so that animals permitted to enter onto travelling stock reserves in return for a fee will be adequately contained within the reserve. 53 I find therefore that the general functions conferred upon the third defendant by the legislation imposed upon it a duty to take reasonable care to protect users of the adjacent Riverina Highway from the risk of injury presented by the escape of stock. 54 The evidence of Mr Wilson concerning the circumstances of the grant of the grazing permit on 13 September 2000 was confirmed by Mr Scammell. The allegations made against the third defendant were based upon a common law duty as the occupier of the land. 55 The issues raised in defence by the third defendant were: (1) The practicability of installation of cattle grids having regard to the third defendant's management of more than 160 travelling stock reserves on 3,800 hectares of land. This argument fell away in the face of evidence of Mr Scammell that only five travelling stock reserves had been identified as representing a risk that required the installation of a cattle grid. (2) The third defendant had acted responsibly in implementing a programme for the installation of grids on those five travelling stock reserves as funds permitted. Mr Scammell said that at the time of the plaintiff's accident one such grid had been installed in 1998. His evidence was that the programme had been adopted in response to the increased use of reserves that have access to the river for recreational purposes. The second grid that was installed was that at the Moorefields travelling stock reserve after the plaintiff's accident. This argument fell away in the face of evidence that the cost of installation of the grids was well within the financial capacity of the third defendant which generally operated with a surplus of funds ranging, according to the limited financial statements in evidence, between $70,000 and $200,000. The full cost of installation of each grid on the evidence would have been about $4,000. This figure does not take account of the prospect of volunteered labour and contributions from adjoining property owners. The cost of the grid at the Moorefields travelling stock reserve was reduced to $2,000 by this means. Mr Scammell was unable to explain the delay between 1998 and 2000 in the full implementation of the programme for installation of the grids. (3) It was argued that cattle grids are not foolproof. I accept that no system is perfect and that the behaviour of animals is unpredictable. However, there was evidence that the grids at the entry to the State forest and to Kismet Farm had been effective and that grids generally were of substantial effect. (4) There was no pressing need for this cattle grid having regard to the prior history, namely that there had been no escape of animals from this travelling stock reserve. Mr Scammell's evidence concerning the circumstances of the installation of the grid at the State forest entry differed from that of Mr Wilson. He said that it had been installed because of the continuing problem of the trespass of cattle from the State forest onto the travelling stock reserve. He said he had been unaware that cattle had escaped onto the road. Mr Wilson's evidence was straightforward and I have no reason to reject that part of his evidence. Mr Scammell agreed that persons who left open the gates at the State forest entrance to the travelling stock reserve were the same as those using the highway entrance and he agreed that he was aware of the danger to highway users if cattle escaped through the open gate onto the highway. He did not explain why he considered it necessary to install a grid at the State forest entrance to protect the travelling stock reserve from trespass, but did not consider it necessary to protect against the risk that the same persons would leave open the highway gate with potentially serious consequences to highway users if cattle escaped. (5) It was argued that there was no evidence that a sign would have overcome the problem presented by persons unfamiliar with the requirement to leave gates as they were found on rural properties. However, there was evidence from Mr Scammell that ninety per cent of persons would respond to such a sign. Further, there was evidence that the reserve was irregularly used by stock. This made it apparent that persons who travel across the travelling stock reserve regularly might not appreciate that there were in fact cattle there, particularly when they were in small numbers such as the two cows and two calves left by Mr Wilson on 23 September 2000. Alerting them to the presence of cattle by the installation of a sign, in my view, would be a reasonable step to take in such circumstances. Responsible persons would be likely to respond to the sign responsibly. (6) I accept that a locking gate, having regard to the multiple use of the road through the reserve, was not an option. This increased the imperative of considering an alternative means of securing the stock. (7) I accept that ceasing the use of the travelling stock reserve was not a reasonable option in the face of the statutory powers conferred on the board. (8) No evidence was addressed to the question of alternative access. (9) There was likewise no evidence that a self-closing gate would have been sufficiently effective. 56 The result is that having already found that the third defendant owed a duty of care, I find that it was in breach of its duty for the following reasons: (1) Whether or not it was aware of the escape of cattle referred to by Mr Wilson, as early as 1994 as evidenced by the management plan exhibit 3D3 and at least by 1998, the third defendant was aware of the changing circumstances of the increased multiple users of the Moorefields travelling stock reserve. (2) The third defendant was specifically aware that users were not closing the gate at the State forest entrance to the Moorefields travelling stock reserve and it was aware that it was most likely that the gate was left open by recreational users. (3) No consideration was given to the prospect that those persons would exhibit a similar absence of consideration in respect of the gate at the highway entrance. (4) The third defendant was aware of the significant risk of injury to highway users if stock escaped onto the highway. (5) The third defendant was aware that the risk could have been substantially eradicated by the installation of a grid at the highway entrance. (6) The cost of installation of the grid was minimal having regard to the magnitude of the risk. (7) The cost of installation was not beyond the financial means of the third defendant. (8) A reasonable person in the position of the third defendant would have taken the simple precaution of the installation of a moderately priced cattle grid to guard against the significant risk of escape of cattle onto the highway. 57 The question that then arose was whether the Civil Liability Act 2002 provided a defence to the third defendant. For the reasons already expressed, I do not consider that s 42 of the Act relating to resources and responsibilities is of assistance to the third defendant. 58 The third defendant also relied upon s 43A which deals with special statutory provisions. For the reasons already stated, I do not consider the third defendant's functions in respect of the care, control and management of the travelling stock reserves fall within the provisions of s 81 of the Rural Lands Protection Act 1989 which sets out specific provisions relating to its travelling stock reserves. 59 The issue therefore is whether in failing to exercise its general functions, which included the management of the Moorefields travelling stock reserve so as to present the escape of stock, the third defendant was acting so unreasonably that no authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions. 60 I have been provided with a number of authorities, none of which in my view assisted in determining this point. I accept that those authorities indicated that the onus is on the plaintiff to establish that the third defendant's conduct was unreasonable to the extent provided by s 43 of the Act. 61 The plaintiff's evidence, in my view, was sufficient to establish that the third defendant did not act reasonably in response to the risk. 62 In my view, the risk was very obvious. Members of the public travelling on the Riverina Highway at the speed limit of 100 kilometres an hour are in a position of significant vulnerability, particularly if they are travelling in the hours of darkness. The magnitude of the risk is of high degree, that of serious injury or even death. 63 The likelihood of the risk eventuating increased with the increased passage of recreational users through the travelling stock reserve. These were factors all known to and acknowledged by the third defendant in 1994 and when it implemented in 1998 the programme for the installation of the grids. It was the only party to these proceedings having the necessary degree of control over the Moorefields travelling stock reserve to take precautionary measures to deal with the risk by the installation of a cattle grid. 64 The delay in implementation of the preventative programme was unexplained except by reference to the alleged lack of financial resources. This was an allegation which the evidence proved was without foundation. 65 In the circumstances, I find that the provisions of s 43 do not assist the third defendant in avoiding liability to the plaintiff. ISSUE 2 - APPORTIONMENT 66 In my view, the third defendant must bear the greatest share of the responsibility because it had the control, care and management of the Moorefields travelling stock reserve. Had it fulfilled its obligations towards users of the reserve, neither the first or the second defendant would have been required to respond to the emergency. 67 In the circumstances, I have apportioned liability as follows: as to the third defendant, fifty percent; the first defendant, thirty percent; and the second defendant, twenty per cent. ISSUE 3 - THE EXTENT TO WHICH THE PLAINTIFF SUFFERED INJURY IN THE ACCIDENT 68 The plaintiff said that when he saw the cow ahead he extended his right arm to protect his mother and he attempted to brace himself by placing his left arm on the window frame to his left. Nevertheless, the impact when the truck returned to the road resulted in his head hitting the front windscreen. He claimed that he suffered brain damage. 69 He also claimed that he suffered a sore neck and headaches. 70 The determination of the plaintiff's claim of head injury presented some significant complexities. At the age of three weeks the plaintiff suffered an episode of apnoea. Mrs Damm stated that he stopped breathing and turned blue. It was apparent from the medical material that he suffered resulting brain damage and he suffered from epileptic fits until he was about four years old. 71 From the age of four to seventeen years he was in good health and he had no fits. 72 In 1984 at the age of seventeen, he was involved in accident in which he was knocked from his bicycle. He suffered a blow to his head. His epileptic seizures recurred and he was placed on medication. 73 In 1991 on medical advice, he ceased medication and returned to good health. His seizures again ceased and he lived a relatively normal life until September 2000. 74 He claimed that the blow to his head in 2000 had led to a recurrence of seizures with the result that he will require medication on a lifelong basis. He also claimed that it caused him a deterioration in his mental health. 75 Whilst the defendants all appeared to accept that the accident was responsible for a measure of psychiatric decompensation, they challenged the connection between the blow to the head and the recurrence of the epileptic seizures. 76 At the time of the accident the plaintiff was living and working in Sydney. The accident occurred whilst he was visiting his parents who lived at Balldale. He returned to Sydney after the accident and resumed his pre-accident lifestyle. 77 Medical reports of treating doctors and the evidence of Mrs Damm indicated that all was not well when he returned to Sydney. The plaintiff referred to an incident that occurred in November when, on a day when he should have been at work, he found himself driving south on the Hume Highway with no recollection of why or how he came to be there. His work was affected by episodes of disorientation. 78 In April 2001, he was terminated from the position he had held in Sydney for four years in circumstances which the plaintiff said he was not able to explain. He could only say that for reasons unknown to him the police were called and he was taken away in handcuffs. 79 On 11 January 2002, at his parents' Balldale home, he suffered a grand mal seizure involving the loss of consciousness. He was treated at Cowra Base Hospital by a general practitioner and referred for treatment to Dr Ring, neurologist. 80 Mrs Damm gave evidence that during the period from September 2000 to January 2002 the plaintiff's approach to life had changed. He had decreased enthusiasm for his life in Sydney and his work and he had suffered a marked deterioration in his personal hygiene and attention to domestic chores. 81 Mrs Damm said that prior to the accident, notwithstanding his acknowledged mild intellectual disabilities, he had been managing well. He had completed school to Year 10, although not without difficulty. He was independent and capable of financial management. Indeed, he had purchased his own house in Balldale before going to Sydney to work. 82 Domestically he kept his accommodation and clothing clean and he attended appropriately to his personal hygiene. 83 She said he had been very distressed at the loss of his job in Sydney and the circumstances in which he had been terminated. 84 Dr Ring, neurophysiologist, reported in January 2002, that in addition to the prolonged seizure that occurred in that month, the plaintiff had suffered three to four minor episodes of partial seizure in the preceding twelve months. 85 Dr Brooder reported in May 2005 further symptoms in this period of increasingly aggressive behaviour leading to the loss of his job and the development of an obsessive-compulsive disorder. Symptoms of this disorder were described in detail by Mrs Damm. 86 Dr Badaines described the plaintiff's psychological disabilities. He acknowledged the pre-accident history of cognitive impairment and episodes of aggression and depression. He noted the obsessive-compulsive disorder and suggested that it could be the plaintiff's method of managing his anxiety and of giving himself some sense of control. 87 As far as causation is concerned, Dr Ring attributed the seizures to the hypoxic brain injury that the plaintiff had suffered at three weeks of age and he attributed his mild intellectual disability to the same cause. 88 He said the plaintiff's symptoms of lack of impulse control, tendency to violence and aggression and depression were not the direct result of the head injury suffered in the motor vehicle accident but were indirectly the result of the accident in that they were symptoms of frustration at being unable to secure employment and at suffering from recurrent symptoms in a person with a pre-existing cognitive disability. 89 Dr Brooder's opinion was that the accident had aggravated the plaintiff's former epileptic condition and his underlying complex partial seizure disorder. It had also aggravated a previous longstanding psychological state. 90 Dr Drury, a clinical neuropsychologist, in May 2006 confirmed that the cognitive deficits demonstrated on testing were the result of the initial hypoxic brain damage. He also noted indications of incidents of temper outbursts consistent with the nature of his brain damage that had occurred prior to the accident. He said that it was possible that exacerbations had taken place after the bicycle accident and after the 2000 accident, but he said that the plaintiff's symptoms most likely had a psychogenic basis. 91 Dr Badaines, on the issue of causation, said the following: He sees it as a reversal of the good progress he was making and the likely end of his optimistic view of life in terms of employment, relationships and an independent lifestyle. In addition, he views himself as disabled now and with little hope of that changing. He is angry about these changes, his relative helplessness and dependency and he strikes out in anger when frustrated or challenged. These features, however, appear to be an extension of an already aggressive personality with poor impulse control and a tendency towards violent outbursts, but certainly exacerbated by the enduring frustrations, et cetera, post injury, described above. The depression is likely to be a major contributor to his lethargy, fatigue, sleep disturbance and slower pace of life. Anxiety about employment and his future also contribute to the low frustration, tolerance and angry outbursts. 92 Dr Lim's opinion was of an aggravation of a previous susceptibility to epilepsy and of longstanding behavioural problems. 93 Dr Davis said that it could be argued that the plaintiff's psychiatric problems developed subsequent to the accident in September 2000, but he said that there had been no additional brain damage or exacerbation of his underlying neurological condition. 94 Having regard to the evidence of the plaintiff and his mother and the medical material before me, I make the following findings. (1) Notwithstanding the opinion of Dr Davis, the preponderance of the medical opinion is that this accident has aggravated both the plaintiff's pre-existing epileptic condition and his pre-existing psychological condition involving an increase in his tendencies to poor impulse control, aggression, anxiety and depression. (2) He has some continuing complaints of neck pain and headaches but they are of limited significance. (3) The results as far as his epileptic condition and his psychological condition are concerned are of particular significance to this plaintiff having regard to his pre-existing vulnerabilities and deficits. His perception is that at his current age of forty he has been robbed of his independence and the lifestyle that he had worked hard to achieve. ISSUE 4 - ASSESSMENT OF DAMAGES Non Economic Loss 95 Having regard to the findings made in respect of causation, I have assessed the plaintiff's non-economic loss at thirty percent of a worst case resulting in an award pursuant to the Civil Liability Act of $101,500. 96 I have made no assessment for the purposes of the Motor Accidents Compensation Act 1999 for reasons which I will deal with at a later stage. Income Loss 97 As noted, at the time of the accident the plaintiff was working in Sydney in a labouring position earning about $510 net per week at the time of the accident. 98 His pre-accident work history indicated a willingness to work but with a number of instances where he left jobs or his employment was terminated through disputes with co-workers. 99 There was a two year period of unemployment before, at Mrs Damm's suggestion, the plaintiff travelled to Sydney where he found work within one week in the position that he retained for four years until April 2001. 100 Since the accident there was a period of unemployment until, in 2004, he found work at Kennedy's, a meat packing operation. He stayed there for six months before he was terminated in February 2005. He said he initially enjoyed the work which was part-time, but his workload increased beyond his capacity. He also complained of harassment by his co-workers. 101 In mid 2005, he secured casual employment in a local vineyard attending to wiring on which the vines are grown. The work was initially part-time and seasonal. His hours have gradually built up to between thirty to thirty eight hours a week although it is still casual and he can choose whether he wishes to work or not. The plaintiff basically works alone and without supervision. It appears that he is particularly suited to this type of position. 102 The findings in respect of causation lead me to the conclusion that the Sydney job was lost because of the consequences of the motor vehicle accident. Similarly, the periods of unemployment since that date have been the result of the consequences of the accident. 103 Past loss has been claimed on the basis that the plaintiff would have earned an increasing salary from his work in Sydney and that his income earning capacity therefore has increased on an inflationary basis from 2000 until 2008. 104 An allowance has been made for income earned since he returned to work. 105 The total claimed is $157,241 which I regard as reasonable. 106 Superannuation on that sum has been allowed at eleven per cent in the sum of $17,296. 107 The plaintiff claims a future loss of income on the basis of $400 per week. I regard this as an overstatement of his loss. The plaintiff's hours of work have been increasing. Further, s 13 of the Civil Liability Act and its corresponding provision in the Motor Accidents Compensation Act require me to take account of his likely future prospects. In this regard, there was a prior history of turbulent relationships with co-workers that indicated that the plaintiff was likely to suffer some instability in his future employment. I have adjusted his loss to $250 per week and applied the standard 15% to vicissitudes. The amount allowed is $160,140. Superannuation has been allowed at 11% in the sum of $17,615. Domestic assistance 108 In respect of domestic assistance for the past, the claim is made from 109 1 May 2001, when the plaintiff returned home after losing his job, to 110 1 November 2004 on a voluntary basis at various rates. This claim was based on the evidence of Mrs Damm concerning the extent to which she assisted the plaintiff in his debilitated psychological condition after he returned to Balldale initially to live with his parents, and then in his own home. 111 I acknowledge that Mrs Damm gave evidence of a considerable amount of care provided but I do not accept that this amount of care was necessarily generated by the consequences of the accident, or that it extended over the hours claimed. I am prepared to allow an average of ten hours per week for these periods. On this basis I have allowed the plaintiff $14,663. 112 For the future Dr Lim expressed the view that no assistance was required. An assessment was made by Miss Ravagnani in July 2006 in which she recommended a number of services. Having heard the evidence of the plaintiff and Mrs Damm I am satisfied that the plaintiff has made considerable gain since he was interviewed by Miss Ravagnani and that he is not in need of the extensive support services that she recommended. 113 The plaintiff demonstrated a determination to work and to remain living and caring for himself independently in his house at Balldale. 114 I accept however that as a result of this accident he has developed some difficulties with the obsessive compulsive disorder, depression and lethargy and those difficulties generate a need for the four hours per week of drop-in supervision recommended at the commercial rate of $31.90 per hour. This allowance is costed at $121,271. Past out-of-pocket expenses 115 In respect of out-of-pocket expenses the defendants resisted the claim for medication on the basis that the medication was provided for a pre-existing medical condition. There was no evidence before me that the plaintiff would inevitably have required lifelong anti-epileptic medication, and I have therefore allowed the amounts claimed. The amount allowed for the past is therefore $1,555.10; for the future $6,215.62. Remaining Issues 116 There is complicating factor in relation to the first defendant in that no medical assessment has been undertaken of the plaintiff's whole person impairment as required by the Motor Accidents Compensation Act. There are medical reports in evidence which offer various assessments both above and below the required 10% threshold. There is no evidence of any formal notice of a dispute served on behalf of the first defendant. However, on reviewing the Act it appeared to me that the only power which I have to refer the matter for medical assessment is contained ss 61, 62 and 111 of the Act. Each of those provisions require that an assessment already be made before the matter comes to court. The power is to refer the matter for further medical assessment should the appropriate circumstances arise. 117 I appreciate that this is a matter of some significance to the plaintiff and I therefore propose to stand over these proceedings for further argument on that issue. 118 There is also the question of interest and costs which needs to be taken into account and it is not until the first defendant's position has been clarified that I can finalise the cross-claims. 119 It appears therefore that regretfully I cannot enter final orders this morning. 120 The proceedings will stand over to allow the parties to address me on the outstanding issues. ADDENDUM CONSENT ORDERS signed by all parties and entered 3.5.08 1 Judgment for the Plaintiff against the First Defendant in the sum of $495,996.72; 2 Judgment for the Plaintiff against the Second and Third Defendants in the sum of $597,496.72; 3 The Defendants are to pay the Plaintiff's costs First Cross Claim 4 The Third Defendant's cross claim against the First Defendant, judgment for the Third Defendant in the sum of $179,249.02 (30% of the total judgment money) and 30% of the Plaintiff's costs; Second Cross claim 5 The Third Defendant's cross claim against the Second Defendant, judgment for the Third Defendant in the sum of $119,499.34 (20% of the total judgment money) and 20% of the Plaintiff's costs; Third Cross claim 6 The Second Defendant's cross claim against the First Defendant, judgment for the Second Defendant in the sum of $179,249.02 (30% of the total judgment money) and 30% of the Plaintiff's costs; Fourth Cross Claim 7 The Second Defendant's cross claim against the Third Defendant, judgment for the Second Defendant in the sum of $298,748.36 (50% of the total judgment money) and 50% of the Plaintiff's costs; Fifth Cross Claim 8 The First Defendant's cross claim against the Second Defendant, judgment for the First Defendant in the sum of $99,199.34 (20% of the total judgment money awarded against the first defendant) and 20% of the Plaintiff's costs; Sixth Cross Claim 9 The First Defendant's cross claim against the Third Defendant, judgment for the First Defendant in the sum of $247,998.36 (50% of the total judgment money awarded against the first defendant) and 50% of the Plaintiff's costs; Costs 10 All parties bear their own costs in relation to the cross claims filed in these proceedings. ********** 14/05/2008 - Addendum following filing of consent orders - Paragraph(s) 120 11/09/2008 - Formatting of Short Title - Paragraph(s) Short case title 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.