New South Wales Supreme Court CITATION : Armstead v The Nominal Defendant [2005] NSWSC 472 HEARING DATE(S) : 18/04/05 - 04/05/05 JUDGMENT DATE : 27 May 2005 JUDGMENT OF : Cooper AJ at 1 DECISION : See paragraphs 401 and 402 of judgment CATCHWORDS : Motorcycle accident - Unknown defendant - Quadriplegia care requirements - Past care costs - Future care costs Motor Accidents Act 1988 LEGISLATION CITED : Civil Liability Act 2002 Fox v Percy (2003) 214 CLR 118 CASES CITED : The Nominal Defendant v Gardikiotis (1996) 186 CLR 49 Richard Paul Armstead PARTIES : The Nominal Defendant FILE NUMBER(S) : SC 20439 of 2002 D Wheelahan QC, P Frame (Plaintiff) COUNSEL : B Gross QC, P J Gow (Defendant) Lamrocks Penrith (Plaintiff) SOLICITORS : McMahons National Lawyers Sydney (Defendant) LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION COMMON LAW LIST ACTING JUSTICE COOPER 27 May 2005 20439 of 2002 RICHARD PAUL ARMSTEAD v THE NOMINAL DEFENDANT JUDGMENT 1 COOPER AJ: In this case the plaintiff sues to recover damages to compensate him for very serious injuries resulting in quadriplegia sustained by him on the night of 9 March 2000 when the motorcycle he was riding and he parted company and he fell striking his head against the corner of the concrete kerb. 2 He alleges that an oncoming vehicle on his side of the road was about to collide with him head on and in order to avoid such a collision he was compelled to cross on to his incorrect side of the road in a rushed emergency manoeuvre thereby resulting in his fall and injuries. The defendant denies that there was any such oncoming vehicle and claims that the injuries were caused by the plaintiff driving round a left-hand bend in the roadway at an excessive speed. THE LOCAL GEOGRAPHY 3 The plaintiff was travelling along a road at Newport which has been referred to as Crescent Road. This is a generally a narrow winding road sealed from kerb to kerb and 8 metres in overall width. Down the centre of the roadway is a set of double dividing lines. 4 When travelling north, as the plaintiff was doing, Crescent Road makes a sharp left-hand turn and is uphill to the intersection of that street with Cecil Road which enters from the plaintiff's right (the east). 5 Opposite the mouth of that intersection is the crest of the hill and a sharp left-hand bend. There is a break in the centre lines opposite that mouth for approximately 9 metres. To the north of that intersection Crescent Road slopes steeply downwards (an 18% grade) to the intersection of Yachtsmans Paradise which enters Crescent Road on the left (the west). From the intersection of Cecil Road to the intersection of Yachtsmans Paradise is approximately 75 metres. At the bottom of the hill and at about the intersection of Yachtsmans Paradise is a set of 4 islands in the centre of the roadway. It is along the section of Crescent Road between the intersections of Cecil Road and Yachtsmans Paradise that the plaintiff came to grief. 6 It was dark but the weather was fine and the roadway was dry. THE PLAINTIFF'S EVIDENCE 7 The plaintiff testified that he was familiar with this section of roadway having traversed it hundreds of times in both daylight and nighttime. He said that he understood it very well (p. 10). He was riding a 600cc Kawasaki motorcycle which was only about 3 months old. He was wearing an approved full-face helmet which was about the same age. Both were in excellent condition. He liked driving along that route to his then home because there were no traffic lights and he regarded it as a very pleasant route. 8 The speed limit in Crescent Road appears from evidence from Pittwater Council to have been 40 kilometres per hour although there is some dispute as to whether this was clearly indicated. 9 The plaintiff drove north along Pittwater Road and then turned right into Mona Street. He then turned right again into Waterview Street until he reached the intersection of Crescent Road. He then turned left in Crescent Road at which point there is a speed hump. He slowed the bike down and went over that hump approximately in third gear doing around 20 kilometres per hour. After Crescent Road passes the intersection of Phillip Road there is a distinct downgrade and then an upgrade with a general left-hand turn to the intersection of Cecil Road. 10 As the plaintiff was approaching the intersection of Cecil Road he described his speed as around 40 kilometres per hour and his position approximately half a metre to the left of the centre lines. As he came to the crest of the hill opposite Cecil Street he slowed down because the corner turns to the left more than 90 degrees. 11 As he rounded that left-hand bend he was confronted and blinded by a set of headlights on high beam approaching him on his side of the road. His evidence was that, at this stage, he was approximately where the double lines started again on the north side of the intersection of Cecil Road. In evidence he was unable to say how far away the lights were from him when he first saw them. At this time his motorcycle was leaning about 10 to 15 degrees to the left because he was going around a left corner at a speed of around 30 to 35 kilometres per hour. He testified that, had he continued on the path he was then travelling he would have hit the car head on. 12 His evidence was that on realising the danger of the imminent collision he applied his brakes, straightened the bike up to the perpendicular position, changed down a gear to slow down more, pushed down hard on the front brake to slow down quicker and then sharply turned off to the right to get out of the way of the oncoming vehicle. He said in answer to a question p. 19: "I put a lot, a hell of force on to the front brake because that's the better brake to use, and enough force on the back brake so I wouldn't lose the back end out." 13 He crossed the double lines and remembered putting the brakes on and he had a vague memory of going over the handlebars and remembers nothing else. So far as he could recall his motorcycle was then straight and stable going off to the right. 14 He said: "I remember stopping, putting the brakes on, and change down gear and the bike went off to the right. So I instantly automatically steered myself to the right to avoid that car and that's the memory I have, the set memory". 15 His next memory was waking up in hospital. 16 He described the lights of the oncoming vehicle as set low and vaguely similar in height and size to a Hyundai Excel which he had owned before he acquired his motorcycle. When asked if he noticed anything about the speed of the oncoming vehicle relative to his own he said he did not really. He was just blinded with the light with his visor down. He denied attempting to turn into Cecil Street pointing out that he was already just past that intersection. 17 At p. 93 under cross-examination he said: "I remember seeing a car and had a split second to make a decision. I put the brakes on, changed down gear and because the way the bike was slightly leaning to the left it stood up the bike in the vertical position and then I steered suddenly, quickly to the right and that's all I remember." EVIDENCE OF THE LAY WITNESSES 18 Lee Morgan and Brendan Fowler had been visiting number 47 Crescent road. That house is located at the end of a steep uphill driveway, some 70 metres long, leading from Crescent Road. It is on the eastern side of that road. 19 When about 50 or 60 metres from the roadway he heard a screeching noise and then a collision. Before hearing that sound he had neither seen nor heard any motor vehicle going along Crescent Road from his right or from his left. He then ran down the driveway to Crescent Road. To the right of the driveway of Number 47 he saw a motorcycle and to the left of the adjoining driveway leading to Number 45 Crescent Road he saw the plaintiff with his head in the gutter. He described the location of the plaintiff as a metre or two to the south of the driveway to Number 45. 20 In his statement, Exhibit 10, he said at paragraph 11: "Prior to hearing the sound of the collision I heard nothing else. As I walked down the driveway I wasn't aware of any cars driving in a southerly along The Crescent. I believe that I would have been aware of any car passing the driveway in the time I was walking along it in the direction of my home. I didn't hear the sound of any breaking or tyre screeching prior to the sound of the collision." 21 In his evidence at p. 435 he pointed out that there is a tree about 5 metres to the south of the driveway to Number 45 and the plaintiff was between the driveway and that tree - he thought closer to the driveway. 22 Brendan Fowler was walking down the same driveway from Number 47 but was behind Lee Morgan. He was, therefore, at a higher level than Morgan. He said that he saw a red light about the same size as a tail light and, at the same time, he heard what sounded like a motorcycle engine at full throttle. The red light went from his left to his right upwards at an angle which he indicated at about 60 degrees from the horizontal and then downwards but he could not see its downward movement. Immediately after that, he heard a crunching noise of metal on something hard coming from Crescent Road. He ran down to the roadway and saw a rider to his left with his face down in the gutter and a motorcycle was on his right on its side at the driveway to number 47 with its rear wheel still spinning but the engine was not running. 23 I shall come back to the significance of this red light later. 24 Mr Fowler added that there was a chip of cement freshly missing from the top corner of the kerb about 1 metre south of the driveway to Number 45 at the point where the plaintiff was lying and which he surmised was most probably caused by the impact of the rider's helmet with that corner. 25 In the light of this evidence plus the nature of the damage to the plaintiff's helmet and the nature of his injuries (of which more will be said later) I am comfortably satisfied that Mr Fowler's assumption is factually correct. 26 That night and again at 7 o'clock the next morning he looked for marks on the roadway. He saw scrape marks on the bitumen about 3 metres to the south of Number 45's driveway. They were towards the centre of the southbound lane. He indicated that they covered an area of about 18 inches by 15 inches. He also looked on those two occasions for skid marks but saw none. In his search at 7:00am the next morning he went up to the corner of Cecil Road and saw no skid marks nor did he see any debris on the roadway. He said: "I couldn't find anything". 27 The other significant "witness" is Exhibit F which comprises a number of photographs of the subject motorcycle. These photographs show minor damage to its right hand side consisting, in the main, of scrape marks at varying angles. The expert witnesses called by both parties agree that such scratch marks are consistent with the motorcycle having slid down the hill on its right hand side and at the same time turning around whilst on its side. 28 In the light of the evidence of Messrs Morgan and Fowler as to the points at which the plaintiff and his motorcycle ended up it is clear that the plaintiff ended up approximately 31 metres north of the northern kerb alignment of Cecil Road and his motorcycle ended up approximately 10 metres further south in Crescent Road. 29 If, as the plaintiff said, he moved to his right and applied his brakes just past the recommencement of the double lines north of the intersection of Cecil Road, he ended up some 5 metres to his right and slightly under 30 metres to the north of his starting point. I accept the expert evidence that the movement to the right could cause his motorcycle to "high side", that is fall on to its right-hand side, and throw him over the handlebars and result in his landing head first on the top corner of the cement kerb. 30 The fact that his motorcycle continued on for a further 10 metres is not indicative of high speed but rather of the steep downward slope coupled with the fact that the rear wheel was turning and it could have caused the cycle to move further if it came into contact with the kerb or the roadway. SOME RED HERRINGS 31 The police report, Exhibit 2, states: "There are no skid marks on the road. The motorcycle has minor damage to the front and left side." 32 This last statement is incorrect. Exhibit F shows no damage on the left side whatsoever. All of the damage is confined to the right side. 33 The report also says that the speed limit in force was 60 kilometres per hour. This is incorrect. The plaintiff thought that it was 50 kilometres per hour but records from the Pittwater Council indicate that is was 40 kilometres per hour. 34 It would appear that although the police officer spoke to some people who live nearby he conducted but a superficial examination of the scene. It may well be that no marks were seen by him in the dark but there is no attempt to revisit the scene in daylight. There must have been some marks on the roadway. It appears that he was looking only for skid marks. 35 In addition to the chip out of the top corner of the cement kerb at the point where the plaintiff was found lying by Mr Fowler, the fact that the plaintiff hit that point head first is supported by evidence of damage to the helmet. This is described in the police report as: "a large crack in the middle front section." It was described by Ms Goldsworthy as a crack above the eyepiece in the front about 2 inches long and a further crack down on the chin section. Ms Goldsworthy also testified that the helmet had no such cracks prior to the accident. 36 Mr Henderson, an expert engaged by the plaintiff, gave evidence of seeing a black mark on the vertical section of the kerb on the eastern side of Crescent Road at a point approximately 12 metres to the north of Cecil Road. He expressed the opinion that this was consistent with the faring of the motorcycle coming into contact with that part of the kerb. However when he was asked to identify any marks shown in the photographs of the motorcycle consistent with such a collision he was unable to locate any. Furthermore, if the faring had come into contact with that part of the gutter the probabilities are that the cycle would have fallen on to the grass adjacent to the kerb on the footpath and there would have been marks in the grass at that point. There were no such marks. Accordingly, on the probabilities I am satisfied that the mark indicated by Mr Henderson was not connected with this accident. 37 Mrs Goldsworthy, the then partner of the plaintiff, had been told by either police or by hospital staff members, that the plaintiff had ended up outside Number 45 Crescent Road and that local residents had given him assistance. Two days after the accident she went to the scene for the purpose of speaking to those people and thanking them for their assistance. 38 She said that she had a walk around to see if she could see why the accident had occurred. She saw nothing on the road that the plaintiff may have hit such as debris. She saw a short skid mark at the top of the hill and she marked its position and angle to the kerb line on Exhibit O. 39 The position and angle of the skid mark as drawn by her is inconsistent with the manoeuvre undertaken by the plaintiff and, therefore, is on the probabilities not connected with the accident. This was the unanimous view of all experts who were asked to give their opinion on it. She also described scrape marks which she said were on the eastern side of the road starting probably about 5 metres down from the crest of the hill. They were just scrapes as if something had scraped down the road and they went a little further than the spot where she was told the plaintiff had ended up. She also marked the position of those scrape marks on Exhibit O. 40 This evidence is contrary to the evidence of Mr Fowler who described a much shorter length of scrape marks further to the south than 5 metres down from the crest of the hill. I am therefore satisfied on the probabilities that her estimate of 5 metres is incorrect and, to the extent that that estimate is reflected in her drawing on Exhibit O it, likewise, is incorrect. 41 Mr Stuart-Smith and Mr Griffiths agree that the damage to the motorcycle shown in Exhibit F is inconsistent with it having tumbled side over side. Mr Griffiths said that the damage shows a bike that went on to its right side and then stayed there (p. 378). He was asked at the same page:- "Q. So such a manoeuvre is completely consistent with a motorcycle having high sided, fallen on its right side and slid on the right side and down a fairly steep hill. A: That was my view and when I expressed that view initially it seemed I was in the minority." 42 In his statement to the police on 14 October 2000 the plaintiff said: "As I rode over the apex I saw a set of lights coming up on the wrong side of the road towards me. They were about 20 metres away from me." 43 Ten days later he gave a statement to an insurance investigator and in paragraph 13 said: "As I hit Cecil Road, I saw headlights approaching from the opposite direction. These lights were on high beam. They blinded me. I had my visor down at his time. When I saw these headlights they were about 20 metres north of the intersection. The trouble is with that intersection, you can't see the approaching traffic until you the hit the corner as it goes around on itself. Those lights appear to be fully on my side of the road. Those lights appeared to be going quicker than me." 44 On behalf of the defendant it is submitted that if the distance between the plaintiff and the oncoming vehicle was only 20 metres they would have been approaching each other at such a speed that a collision was inevitable. With this I agree. 45 The plaintiff gave evidence that he was reluctant to tell both the police and the investigator how far away the vehicle was when he first saw it. He was pressed to give a distance and he expressed the opinion of 20 metres. Such an estimate however is totally unreliable. He was blinded by the oncoming headlights and therefore would have been unable to distinguish any of the surrounding features which would enable him to make any reliable estimate. Furthermore he was confronted with an emergency and had to react in an emergency. With the benefit of hindsight and in the calmer atmosphere of the Court he has said that it was more likely that the oncoming vehicle was further away. I have no hesitation in accepting this evidence. 46 What is not doubt that the plaintiff ended up on his wrong side of the road and in collision with the kerb. On behalf of the defendant it is submitted that this was because he had taken the left hand curve of Crescent Road at an excessive speed, crossed on to the wrong side of the road and lost control as he was trying to get back again to his correct side. This submission is supported by some of the evidence of experts called on its behalf. 47 In my view, of greater significance is the fact that all experts agree that the objective facts are consistent with the plaintiff having made an emergency turn to his right to avoid a perceived danger and in the course of so doing the motorcycle became unstable, it went on to its side, he was thrown over the handlebars and ended up hitting his head on the top corner of the kerb. 48 This is not a case to be determined by the opinions of experts. The real issue is: has the plaintiff satisfied the court on the balance of probabilities that his version of the causes of the accident is to be accepted. Indeed, in relation to much of the evidence of experts on both sides who sought to give evidence of reconstruction of how the accident occurred I would repeat with respect the words of Callinan J in the case of Fox v Percy 214 CLR 118 at p. 167. "Rarely in my opinion will such evidence have very much, or any, utility. Usually it will be based upon accounts, often subjective and partisan accounts, of events occurring very rapidly and involving estimates of time, space, speed and distance made by people unused to the making of such estimates. Minor, and even unintended but inevitable discrepancies in relation to any of these are capable of distorting the opinions of the experts who depend on them. It is also open to question whether the variables in relation to surfaces, weather, and the tyres, weight and mechanical capacities of the vehicles involved can ever be suitably accounted for so as to provide any sound basis for the expression of an opinion of any value to a court." WAS THERE AN ONCOMING CAR? 49 On behalf of the defendant it is submitted that the evidence of the plaintiff should not be accepted because, amongst other reasons, he has given no less than 8 different versions of the accident. 50 The first alleged version is said to have been given some 2 or 3 weeks after his admission to the Royal North Shore Hospital to Dr Soden who spoke to him in her capacity as a data collector for the Register of Spinal Cord Injury cases. She spoke to him whilst he was in intensive care. This was within the period within which the plaintiff says he has no memory. 51 She asked him a number of questions the first one being: "what was the victim doing at the time of injury event". She wrote down an answer: "Travelling home on motorbike with full face helmet. ETOH 0.08." 52 She explained that ETOH means blood/alcohol reading. At that stage the plaintiff was unaware of an alcohol reading and in fact his blood/alcohol reading was different from 0.08. Dr Soden could not satisfactorily identify the source of this information, but agreed that it may have been in some medical notes. 53 The second question was: "What went wrong? Describe how things went to precipitate the entire incident or injury sequence." 54 The answer she recorded was: "Came over a rise and hit rain from stormy weather. Hit debris on the road from previous days rain". 55 The next question is "What actually inflicted the injury". The answer recorded is: "Impacted face on kerb and head forced into extension." 56 In evidence the plaintiff agreed that there could have been rain on the day before the accident and that when there is rain there is sometimes debris on the road but he explained that it is always in the gutter and his motorcycle was nowhere near the gutter. Furthermore, having heard the plaintiff speak I consider it highly unlikely that he would use a phrase such as: "forced into extension". 57 Dr Soden said that she was satisfied that the plaintiff was then conscious and alert. She was unable to say on what she based this information. 58 The lack of reliability of her evidence is exemplified by the following passage at pp 34 and 35:- "Q. But as long as you get the information from some source that you convey to the Central Register, that's all you need, isn't it? A. Yes, but the patient – we also need to get a vignette which creates the scenario as close as possible to the injury event. Q. Yes but you would have been told by anybody that had or was alleged to have had. A. That is one of the failings of the system. It can be either the patient's reporting or a reporting in the notes, that are deficient in these catastrophic injuries." 59 It is also clear that she got the location of the accident wrong. She noted it as Mona Vale. It took place at Newport. 60 Of particular significance is the following question and answer:- "Q. Thank you Doctor. May I encapsulate all of this material with this proposition? Doing the best you can to provide a record for the case registration data base in South Australia, you have done your best to glean the information that is set in Box 26 from whatever source it was available. A. Yes." 61 In addition to this, there is the evidence of Ms Goldsworthy to the effect that two to three weeks after his admission into Royal North Shore Hospital, the plaintiff was still fighting for his life. He had had a tracheostomy and was unable to speak unless it was capped. Dr Soden was unable to recall whether it was capped or not. 62 In the light of all of this evidence I am comfortably satisfied that if the plaintiff did in fact give Dr Soden this information (as to which I have some doubt) then it was the consequence of his befuddled state of mind and cannot be relied upon as an expression of an accurate factual account. 63 The second alleged version is that the plaintiff gave evidence that while in Royal North Shore Hospital he had no recall of the events of the accident. He was in that hospital from 9 March to 29 May 2000, a period of 11 weeks. His evidence was that he was not able to recall the events concerning the accident until he was an inpatient in the Moorong Rehabilitation Centre to which he was admitted on 29 May. 64 In this evidence he is corroborated by Mrs Goldsworthy, his then partner, who gave evidence that he was asking her what had happened. He kept on asking this question and she told him that he had had a motorbike accident and was paralysed. He failed to understand what she was telling him because he answered with words to the effect: "don't worry, I'll be out in a week." 65 She gave evidence that over a period of at least 6 weeks he was in such a confused state that he had no comprehension of the extent of his injuries but seemed to think that everything was going to be all right. 66 She went further and said (p. 391) that approximately 6 weeks after the accident he said that he remembered bright lights and swerving to miss them. He was extremely frustrated and could not remember the day of the accident at all. It was over the ensuing weeks that he remembered bit-by-bit different parts of the day and not necessarily in proper order. He later recalled being at the hotel at Cremorne and then driving around Crescent Road. Her evidence was that from the time that he mentioned the lights to the time any new information came forth was some two to three weeks. 67 Subsequently the plaintiff contacted his present solicitor who was recommended by his brother who had gone to school with the solicitor. It was the plaintiff's brother, Michael, who made the initial contact with the plaintiff's present solicitor and later Mrs Goldsworthy was asked to give him a call. She was asked by the solicitor to make an effort to find out if anyone knew anything about the accident. As a result, she prepared a pamphlet which she dropped in letterboxes in the street. 68 In that pamphlet, Exhibit M, reference is made to the fact that the plaintiff only recently recovered his memory of the events. 69 On behalf of the defendant it was submitted that the gradual onset, piece-by-piece, of memory of the events about the accident is highly improbable. I cannot agree with this submission. In my view, particularly having regard to the description of the regaining of memory given by Mrs Goldsworthy, it is highly probable and acceptable. 70 What is claimed to be the third version is contained in the plaintiff's Personal Injury Claim Form (Exhibit 1) signed by Mrs Goldsworthy on behalf of the plaintiff. It reads so far as is relevant:- "Heading north along The Crescent. As I came up the hill and began to lean into the curve, I saw a set of headlights on my side of the road. I attempted to pick the bike up out of the left and swerve right around the vehicle. The bike slid on the right-hand side and I hit the gutter with my head." 71 In evidence the plaintiff said that the last sentence was based on something he had been told. The first part he remembered. 72 The sketch forming part of the claim form shows the plaintiff swerving to the right in about the mouth of Cecil Road with the oncoming car almost touching him. This was clearly not a drawing to scale. However it does show a reasonable representation of what happened although not necessarily in the correct position on the roadway. It is certainly not inconsistent with the evidence which the plaintiff gave in Court. 73 The fourth alleged version is contained in a statement dated 14 October 2000 given by the plaintiff to Senior-Constable Pringle (Exhibit 2). The relevant part reads:- "I turned left into The Crescent from Waterview Road, Mona Vale. I was in third gear as I turned into the street. I drove down the gully and changed up gears. When I hit the bottom of the gully I changed down. The whole street sweeps around to the left and I came to the crest of a little hill that sweeps around the corner. As I rode over the apex I saw a set of lights coming up on the wrong side of the road towards me. They were about 20 metres away from me. I basically hit the brakes, kicked the bike out of the left-hand corner, tried to go right. I went over the top of the handlebars. That's basically all I remember. . . . I was going about 30 kilometres per hour." 74 With the exception of the estimate that the lights were about 20 metres away from him, this version is substantially the same as he gave in evidence. 75 What is said to be the fifth version is contained in a statement to an insurance investigator on 28 October 2000, Exhibit 6. The relevant parts of this stated:- 12 "I was riding at a speed of about 30 kph, getting down that area. When I hit Cecil Road I was going 30 kph ……I was riding on my correct side of the roadway positioning myself to go through the bend, leaning the bike to the left. 13 As I hit Cecil Road, I saw headlights approaching me from the opposite direction. These lights were on high beam. They blinded me. I had my visor down at this time. When I saw these headlights, they were about 20 metres north of the intersection. The trouble is with that intersection, you can't see the approaching traffic until you hit the corner as it goes around on itself. Those lights appeared to be fully on my side of the road. These lights appeared to be going quicker than me. 14 When I first saw these lights, I was right at the apex of the corner and little bit to the right, of the middle of my lane. I picked my bike up, by this I mean I straightened it up out of the lean, and I hit the brakes. I tried to turn right up into Cecil Road to try and avoid the car. I then remember going over the handlebars, and that's about it. I don't remember the headlights passing me at all. I believe the car must have passed me still driving in the northbound traffic lane. 15 The car appeared to be a small two door, but I am not sure. I can't say what colour this car was. I can't say how many persons were in this car. I can't describe the numberplates at all. All I saw was the bright lights ahead of me. If I had kept going in my lane I would have hit him head on. He would have got me regardless either head on, or on the left-hand side. 16 The next thing I remember is being in hospital, with my partner, Karen alongside me in intensive care. This was about 4 weeks after the accident." 76 With certain exceptions this is substantially the same as he gave in evidence in Court. The first exception is his estimate of 20 metres. The second exception is that he thought that the other car was going faster than him. The third exception is that he tried to turn right up into Cecil Road to try and avoid the car. 77 The plaintiff explained that he was pressed to give an estimate of his distance from the oncoming car and that reluctantly he did so. He also said that he did not tell the investigator that he tried to turn right up into Cecil Road and added that such a manoeuvre was impossible because at the time he saw the oncoming headlights he was almost at the northern edge of that intersection. Indeed had he tried such a manoeuvre he would have collided with the kerb much closer to intersection of Cecil Road than he did. 78 What is alleged to be the sixth version is a passage in the report of Dr Buckley of 1 June 2001. Dr Buckley says that he was told that:- "He was driving his new motorbike wearing his helmet and full gear when he came around a bend to find a car on the wrong side of the road. He thinks he braked, to avoid the vehicle, but in any event, lost control, striking the gutter. He was found by some people in the street. His last memory of the accident was braking. His next memory was 3 weeks later in Royal North Shore Hospital." 79 This, of course, is Dr Buckley's paraphrasing of a potted version of the accident given to him by the plaintiff. It is not inconsistent with the substance of the plaintiff's evidence. 80 The alleged seventh version is comprised in a diagram drawn by Mrs Goldsworthy on behalf of the plaintiff, sent to the plaintiff's solicitor and then transmitted by the latter to Mr G Moir and reproduced in his report (Exhibit 7). This shows the plaintiff's motorbike making a sudden deviation to the right at or just past the northern end of the mouth of the intersection of Crescent Road with Cecil Road and then a curve to the left immediately after that sudden right deviation. 81 This is neither consistent nor inconsistent with the plaintiff's evidence. He did not know the entirety of the course which his motorcycle took. He was aware he turned to the right, was aware or vaguely aware that he went over the handlebars and that's all he knows. The balance is a reconstruction by Mrs Goldsworthy. 82 The alleged eighth version is what the plaintiff said in Court. I have already referred to some exceptions. In addition the plaintiff in evidence described the oncoming vehicle as a small vehicle when judged by the height of its headlights. He did say in his evidence that he thought, but was not sure, that it was a two-door vehicle. In evidence he went into a lot more detail as to the application of the brakes and the gearing down of his vehicle and trying to swing to the left than he did in any of the previous versions. But this added information was given in Court in answer to searching questions. 83 In short, the plaintiff has given a consistent version of the accident involving his coming around the corner, being confronted by oncoming headlights blinding him on his side of the road and, as a result, having to take emergency action to get out of its way. This has been consistent from as early as 22 June 2000. This consistency in my view tends to render his version of how the accident occurred and in particular the presence of an oncoming car on his side of the road, all the more probable. 84 It is also submitted on behalf of the defendants that if the plaintiff was travelling at only 30 – 35 kilometres per hour and if that speed was reduced by heavy braking and gearing down, it should have virtually come to a halt and would be unlikely to continue such a long distance to the north striking the eastern kerb, scraping along the road and causing such serious damage to the plaintiff's helmet and neck. 85 In the first place there is no evidence that the motorcycle struck the kerb prior to the plaintiff falling off it. In the second place the distance between the point at which the plaintiff started his right-hand turn and where he came to rest was on the probabilities less that 25 metres. 86 In the third place the contention of the defendant is based on the estimate that the plaintiff struck the kerb at 30 kilometres per hour. I find little or no objective evidence to support this estimate. The plaintiff's helmet came into collision with the top corner of the cement kerb where the vertical section meets the horizontal section. In other words there was a very narrow area which exerted force on the plaintiff's helmet. None of the calculations given by the experts appear to have taken this into account. 87 I do agree with the defendant's contention that vehicles normally do not travel on the wrong side of the road. However the statistical improbability of such an event does not mean that it did not happen on this particular occasion. 88 The plaintiff gave evidence that he was not aware of the oncoming vehicle passing him. In view of the fact that his attention was concentrated on getting the motorcycle out of the way and that he was blinded by the oncoming lights I do not regard this as tending to establish that there was no such oncoming vehicle. 89 However there is the evidence of Mr Morgan and Mr Fowler to the effect that they neither heard nor saw any southbound vehicle before the sound of the plaintiff's motorcycle falling on the roadway. 90 This evidence however must be viewed in the light that the other vehicle was a small vehicle and that these men were then some 50 and more metres away from the roadway and that there were at that time a large number of trees around them which would have the effect of deadening sound coming from the roadway. 91 As against all of this it is necessary to look at the history of the plaintiff. 92 He was born on 24 June 1959 and attended school until 1976 after which he commenced and completed an apprenticeship as a fitter and turner. From the time he left school up to the date of the accident he was in regular employment earning quite good money. At times he took on a second job. 93 His first marriage ended in separation in 1993 and dissolution in 1996. His former wife was a paranoid schizophrenic and the plaintiff sought and was awarded sole custody of their daughter, Gina, whom he then raised as a sole parent until meeting Mrs Goldsworthy, the woman with whom he cohabited for a few months prior to the subject accident. 94 He obtained a motorcycle rider's licence when he was 18 and rode this motorcycle for something like 10 years in the intervening years to the date of his accident. 95 As mentioned earlier he was familiar with Crescent road and its twists and bends and hills. He rode his motorcycle to work daily. 96 On the day of the accident he came home from work, had a shower and went to Sydney City Kawasaki Bike Shop in Redfern to view some equipment. 97 He then rode to the Strata Hotel on Military Road, Cremorne near the intersection of that road and Spofforth Street. He gave evidence that he there drank five or six full strength metric schooners of beer with some friends and also ate some sandwiches and chips. He was at the hotel from approximately 6:45 pm to 9:45 pm. So far as he was aware he was unaffected by alcohol. 98 He then drove down Military Road on to the Spit Bridge up to Seaforth and from there to the Wakehurst Parkway and joined Pittwater Road at Narabeen. He then drove along Pittwater Road turning off into Mona Street and then followed the route described earlier. 99 Over this journey he had ridden along main roads which are heavily trafficked and which have traffic lights, without any adverse problems. 100 An example of the reliability of the plaintiff as a witness is demonstrated in the report from Professor Starmer to the defendant's insurer of 5 January 2001. 101 The plaintiff gave evidence that between about 6.45 and 9.45 on the evening of 9 March 2000 he consumed 5 or 6 schooners of full strength beer. 102 At paragraph 4 of his report Professor Starmer says:- "Given the body weight (85 kg) and gender (male) of an individual, the amount of alcohol consumed (73.9 grams) and the time frame of the drinking episode (he started drinking at 6.45 pm), it is possible to make an estimate of the most likely blood alcohol concentration at some later time point. Applying this calculation to Mr Armstead, I am of the opinion that at the time of blood sampling (23:59 hours), his blood alcohol concentration should have been about 0.059 grams per millilitres, which is in reasonable agreement with the police finding. His recall of his drinking over the period in question is therefore likely to have been accurate." 103 The plaintiff impressed me as a witness who was doing his very best to tell the truth. He gave his evidence in a clear manner and under robust cross examination was prepared to concede matters (including his consumption of alcohol) which may have been against his interests but nonetheless were consistent with his overall version of events. 104 Having seen and heard the plaintiff and after considering all of the evidence I am satisfied on the probabilities that his version of an oncoming car with its lights on high beam forcing him to take sudden emergency evasive action is eminently probable and believable. In coming to this conclusion I have disregarded Mr Fowler's evidence of the moving red light. The Moving Red Light 105 But there is a further matter to consider and that is what was the moving red light described by Mr Fowler in his evidence. 106 To answer this question it is necessary to set out the relevant passages from his evidence. 107 At pages 438/9 "Q. Approximately how far were you from where the driveway enters Crescent Road? A. Over 50 metres. Q. So what did you notice at this stage? A. What I saw was a red light about the same size as a tail light and, as I heard an engine wind out I saw a red light more or less in front of me, and it went from my left to my right, and it was on an incline, like that. Q. You show in an arc which goes from the bottom of the arc to the top, but you have not shown any further - you have shown the upward arc. You did not see any downward arc? A. No. Q. Did you hear any noise? Can you describe the noise you heard? A. As I saw the light moving I heard an engine, small engine, wind out. Q. And the engine sounded like what type of engine? A. Motor cycle. HIS HONOUR: Q. What do you mean by winding out? A. Full throttle, take it to full throttle. GROSS: Q. Did you hear any other sound at all? A. Shortly after that I heard a crunching noise, a crashing noise, metal on something hard. Q. Where did you hear that noise? A. I heard that noise about two metres from the top of the driveway when I started running down." 108 At page 440:- Q. Would you do it again - maybe about three inches across. Are you trying to make a circle? A. It is a rounded rectangle. I saw a light about that size. Q. A rounded rectangle about three or four inches across, three inches across and two and a half inches vertically. HIS HONOUR: Q. I just want to understand the movement you saw of this light? A. My line of sight from where I was positioned, Crescent Road four years ago, could be seen, you could see a bit of the road and the telegraph pole, there is the road there, I saw a red light from where the corner bit should be, come from my lower left and it went upwards to my right, and then disappeared. GROSS: Q. Along what line relative to Crescent Road? A. That would be going down Crescent Road. Q. From left to right - you are indicating with your hands? A. Yes. HIS HONOUR: Q. Could you help me. You said it was going down Crescent Road, Which direction in Crescent Road, downhill? A. Yes. It was - it was coming from Cecil Road directly, down Cecil Road and straight down Crescent Road. Q. And straight down Crescent Road, how could you tell it was on the road? A. The light was not on the road. The light was airborne. Q. At that stage what made you think it was airborne? A. I have lived there for so long, I knew the telegraph pole, I used to watch for the pizza delivery coming around the corner, I knew where I saw the light it was not touching the ground. That light was airborne. It had left the ground. 109 At pages 440 and 441:- GROSS: Q. I appreciate you see the light in its upward arc, not any further arc, but if that arc was continued, where would it take that light? A. It would have taken that light to just the right of my drive. Q. In Crescent Road? A. In Crescent Road. Q. Apart from that light did you see any other light or lights? A. A street light on the telegraph pole, that was the only other light. No vehicles. Q. You did not see any light or lights, consistent with any other vehicles? A. No. Q. And the light you saw, was it a single light? A. A single light. 110 At pages 445 and 456 Q. I think you're aware that down through the trees below where you've put the circle and to the left of the circle, there is actually the house to number-- A. There's a white house all through there just to the right of the red circle is number 45. So the red light I've seen has occurred - I've seen through a gap between the house at number 45 and all the foliage next door to them. That's where my vision has been, through that area. Q. For what period of time did you have the red light under observation. Was it just a split second, fraction of a second? A. One and a half seconds. Q. During that one and a half seconds, did you have it under observation the whole time, did you? A. Until the red light was no longer in my vision. Q. When you first heard a noise, did the noise appear to be coming from where you've now indicated the red circle or appear to be coming from up near the intersection? A. No, with the red circle. It all ran together simultaneously. 111 At pages 447 and 448 he was questioned with photograph number 3 in exhibit J:- HIS HONOUR: Q. That indicates what, that arrow? A. That's the position of where approximately I can see lights coming up or down Cecil Road. Q. Cecil Road? A. Yes. Q. What about Crescent Road? A. On Crescent Road where the circle is on the picture, that's approximately the vision I have to the left of my driveway of Crescent Road. Q. What about the intersection of Crescent Road and Cecil Road? A. Is the same position as the circle. Q. Same position as the circle? A. Yes. I can't see the far left edge of that intersection because that's obscured by a house. What I can see is the right side of that intersection. Q. So a vehicle going up Crescent Road to the south past Cecil Road would be making a right-hand turn? A. Yes. FRAME: Q. What I'm suggesting to you, if you were looking towards the arrow that we now know to represent traffic in Cecil, right, knowing that at that point the Crescent does a right turn? A. Yes. Q. If you were standing at the top of the driveway looking towards that arrow, vehicles turning right as it were, with the curvature and going along the Crescent would appear to be going from your left to your right? A. Level, left to my right, level. 112 And at pages 449 and 450:- Q. You've told us today that it appeared to be going up and then you lost sight of it? A. Yes. The light went from the left to my right on a steep incline, and because I only saw a red light, and at the other end of the red light should have been a white light, right, which is the head lamp. From the height that I was standing at that was - yeah, they were the estimates that I made with him at the top of the driveway. Q. So you estimated that it was 4 feet because you couldn't see a headlight. Is that right? A. We estimated it was 4 feet from where my line - where I could see the telegraph pole. That road drops down, so that's where we stood at the top there. This is before any telemetry was done. 113 At page 451 Q. What I want put to you is from your vantage point, if you saw anything, it would have been a light similar to the light that you see here being a tail light of a vehicle disappearing around the corner moving from right to left. Do you understand what I'm saying to you - moving from left to right? A. Level, it's moving - a car going around Crescent Road southbound to Mona Vale, its tail lights actually come into vision and move on the same plane away from you and disappear, whereas what I saw was actually moving up where there is no road there. 114 At page 453:- A. Are you trying to get at, is it possible that it might have been another vehicle driving away? HIS HONOUR: Yes. A. That is what you're trying to get at? Q. Yes, you put it precisely; what is your answer to it? A. My answer to that is, no, your Honour. Q. Why? A. The altitude, the sharpness of the small red light that I saw has gone up at this kind of angle, whereas a vehicle going southbound around Crescent Road, while it still goes from my left to right, it is a shorter distance and there is no incline to be had. 115 To understand Mr. Fowler's evidence it must be borne in mind that his observations were made from a point of the driveway to Number 47 Crescent Road which is substantially higher than the adjacent roadway and approximately level with the crest of the hill at the intersection of Crescent Road and Cecil Road. There were trees between that position and the intersection. The light that Mr Fowler saw was observed, as it were, through portholes in the foliage of those trees. His view of the roadway immediately to his left of the driveway was obscured by the house at Number 45. 116 The motorcycle coming towards him would have had its headlight, and not its taillight, facing him. Over the top of the taillight is a form of cowling which prevents one seeing that light from immediately above the motorcycle. 117 He said that the light was airborne and had left the ground. For this to have occurred the motorcycle must have either achieved a position where it had somersaulted over its front wheel or was airborne and had turned sideways 90 to 180 degrees. All experts agree that the damage to the motorcycle was not consistent with the bike having somersaulted end-over-end or even side-over-side. At page 348 Mr Stuart-Smith the expert engaged by the defendant was asked:- "Q. So it might have been running on its front wheel with its tail up in the air. A. It couldn't really have been doing that for the tail to have come up in the air. Theoretically that would be possible, but in practice highly unlikely." 118 On behalf of the defendant it was submitted that the red light was visible because the cycle was in the horizontal, or close to horizontal, position and turning around so that the red light was visible. However the damage is such as to render it in my view highly improbable that the motorcycle was airborne while it was turning around. I accept that when it was turning around it was on the ground sliding downhill and not in the air. 119 The key to understanding Mr Fowler's evidence is that he said he could see the streetlight on the telegraph pole which he identified as the one on the western side of the Crescent Road opposite the mouth of Cecil Road. He said that he could not see the eastern side of that intersection but he could see the Western side. 120 Mr Fowler said: "I knew the telegraph pole, I used to watch for the pizza delivery coming around the corner." 121 That pizza delivery coming around the corner would be travelling in a northerly direction towards him. Accordingly he would be able to see it because it was on the western side of the carriageway. That is the same side as the telegraph pole to which he referred. 122 I am satisfied on the probabilities that the light that he saw was in fact the vehicle described by the plaintiff going up the last part of the hill on its wrong, or western, side of the road and then disappearing around the right turn of the corner of Crescent Road. That vehicle, on the probabilities would have reached that position at about the same time as the plaintiff lost control of his motorcycle causing Mr Fowler to hear the sound of the cycle engine winding out followed immediately by the sound of the crash. 123 From the vantage point of Mr Fowler, a tail light on the offending vehicle travelling south in the northbound lane would appear to move slightly upwards and from right to left as it was commencing to turn round the right hand bend and then disappear as it was completing that turn. The level movement of the oncoming pizza delivery to which Mr Fowler referred may well apply to a southbound vehicle in its correct lane, but not to a southbound vehicle in its wrong lane. 124 For all of these reasons taken collectively and individually I am comfortably satisfied that the plaintiff came to grief because he was forced to take emergency evasive action to avoid a head on collision with a vehicle approaching him on its incorrect side of the roadway. 125 The driver of that unidentified vehicle was clearly guilty of negligence and that negligence caused the plaintiff's injuries. Contributory Negligence 126 I now pass to the issue of contributory negligence. 127 The police report, Exhibit 2, reveals that a blood sample was taken when the plaintiff was admitted to Royal North Shore Hospital at about midnight on 9 March 2000. A reading of that sample revealed a blood/alcohol level of 0.064. The report goes on to say that it had been decided that police will exercise their discretionary power in not taking action against the plaintiff for low PCA due to the serious and permanent nature of his injuries. 128 Section 138 of the Motor Accidents Compensation Act provides:- "A finding of contributory negligence must be made in the following cases…… (a) Where the injured person….has been convicted of an alcohol or other drug related offence in relation to the motor accident unless the plaintiff satisfies the Court that the alcohol or other drug involved in the commission of the offence did not contribute in any way to the accident". 129 There is no such conviction, consequently the mandatory requirements of this section do not apply. 130 It is submitted on behalf of the plaintiff that even if he had been convicted he has established that alcohol did not contribute in any way to the accident. 131 He was confronted with an immediate danger. In order to avoid a head on collision he had no choice but to deviate to the right and the evidence establishes to my satisfaction of the balance of probabilities that manoeuvres such as those which the plaintiff was compelled to undertake are likely to have the result that ensued - namely that there was a "high siding" incident causing him to be thrown from his cycle. It is unfortunate that he struck a hard and narrow unforgiving surface such as the top corner of the kerb with his head. 132 On behalf of the defendant it is submitted that there was contributory negligence in two respects. First that the plaintiff was travelling at an excessive speed and secondly that he was affected by alcohol. 133 In relation to the first I am satisfied that the plaintiff was not travelling at a speed which was excessive in the circumstances. In relation to the second it is necessary to have consideration to the report of Professor Starmer. 134 Professor Starmer expresses the opinion that, accepting that the blood sample was taken at 23:59 hours (approximately 1 hour and 19 minutes after the crash) and applying the well-established formula for the rate of elimination of alcohol from the system, then the plaintiff's most likely blood alcohol concentration at the time of the crash would have been about 0.084 grams per 100 millilitres. He did not think that it would have been lower than 0.077 grams per 100 millilitres or higher than 0.090 grams per 100 millilitres. 135 The Professor expresses the opinion that the facets of rider control can be shown to be greatly impaired at blood alcohol concentrations below 0.064 grams per 100 millilitres which is a conservative estimate of his blood alcohol concentration at the time of the crash. 136 He also points out that, in the circumstances of this case, reduction in glare resistance might have been a causal factor in the collision. He refers to experiments which show that an alcohol dose of 0.7 gm per kg reduced glare resistance in some subjects. I would emphasise here that Professor Starmer says it might have been a causal factor in the collision and that the alcohol dose of 0.7 grams per kilogram reduced glare resistance in some subjects. 137 His report concludes:- "In conclusion, it appears that Mr Armstead's blood alcohol concentration would probably have been near or within the middle range prescribed concentration for drivers and riders. As an experienced motorcyclist, he would have only been slightly to moderately impaired, depending on his tolerance to alcohol (and this should be established), but, apparently through no fault of his own, he found himself in a hazardous situation where the alcohol which he had consumed reduced his ability to cope." 138 It also has to be borne in mind that the plaintiff was wearing a full head visor and the effects of the glare through the eyeglass and inside his helmet would have aggravated the effects of the oncoming light. I am satisfied that it is the experience of most drivers, who have not consumed alcohol, that the glare at night-time from oncoming headlights on high beam has the effect of reducing vision of the roadway almost to nil. From the time the plaintiff first saw the oncoming lights to the time his head struck the kerb he travelled somewhat less than 25 metres. At 30 kilometres per hour (8.28 metres per second) he would have covered this distance in under three seconds. I am satisfied that an alcohol free driver or rider would not have recovered full vision in this time particularly having regard to the fact that the plaintiff was engaged in trying to control his motor cycle whilst escaping from the path of the oncoming car. 139 The evidence satisfies me that the plaintiff did react appropriately in the circumstances and that he manoeuvred appropriately in the circumstances. With or without the effects of alcohol a fall from the bike was highly likely to occur. The essential cause of the gravity of the plaintiff's injuries is that he was unfortunate enough to suffer a collision between the area of his forehead and the top corner of the cement kerb. 140 I am satisfied that this consequence was in no way related to his consumption of alcohol. 141 It is appreciated that in most cases one would find that a blood alcohol of 0.084grams per 100 millilitres would be a fault on the part of the plaintiff which contributed to the plaintiff's share in the responsibility for his damage. 142 But one has to apply the provisions of section 9(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1965 to the facts as found in this particular case. The task is to reduce the damages to such extent that the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage. 143 In this particular case the situation which the unidentified vehicle created was of such a nature that I am satisfied (regardless of whether the onus be upon the defendant or the plaintiff), that his consumption of alcohol in no way contributed to the damage which he suffered. 144 It is very easy to say that in normal situations such a blood alcohol level would contribute to the damage which the plaintiff suffered in the light of findings of experiments on other people. Once, however, must be careful to look at the particular facts of the case and to apply the law to this particular case. DUE INQUIRY AND SEARCH 145 It is not really in issue between the parties that due inquiry and search was made for the unidentified vehicle. 146 There is evidence that Mrs Goldsworthy prepared a pamphlet (Exhibit M) which she dropped into the letterboxes of houses near the accident scene and received no substantial help in identifying the vehicle. There is evidence of the insertion of advertisements in newspapers seeking help none of which resulted in any information leading to the identification of the vehicle. 147 The plaintiff was unconscious after the accident and suffered post traumatic amnesia for a period of some 3 or 4 weeks. He did not recall the circumstances of the accident until about a month later and then only partially. Attempts to identify the vehicle were commenced shortly afterwards. 148 The police were unable to take any action to locate the unidentified vehicle shortly after the accident because the people they interviewed were unaware of its involvement and the plaintiff was unconscious. The police attempted to interview the plaintiff at Royal North Shore Hospital on 10 March and again on 30 March 2000 and were informed that he was not then fit to be interviewed. See Exhibit 2. 149 It is clear, therefore, that the plaintiff is entitled to a verdict on the grounds of the negligent driving of the oncoming vehicle the identity of which cannot be ascertained after due inquiry and search. AS TO DAMAGES Background of the plaintiff. 150 He was born in June 1959, attended St Ives High School and left with his school certificate in 1976. He then secured an apprenticeship with the Department of Navy at Garden Island Dockyard as a fitter and turner and duly completed that apprenticeship. Thereafter he has remained in constant employment with different firms until the date of his accident. 151 At the time of the accident he was employed by Power Marine at Palm Beach as a fitter and turner working on boats which ranged in size from small boats up to America's Cup boats. Before that job he had a second job working as an assistant in nursing at Wesley Gardens at Belrose. He started at Power Marine in about October 1999. 152 In December 1999 he moved into a house together with his partner Karen Goldsworthy. 153 At Power Marine the plaintiff worked overtime on a Saturday and Sunday at times. 154 The plaintiff had been previously married on 13 September 1996 and a daughter was born of that union on 5 June 1987. They separated on 6 September 1993 and the marriage was dissolved in 1996. The plaintiff was awarded sole custody of the daughter because his wife was a paranoid schizophrenic. Thereafter he brought up his daughter right up to the time of the accident. She is now almost 18. 155 In August 1997 he met Karen Goldsworthy who had two children by her prior marriage. 156 On 6 December 1999 the plaintiff and Mrs Goldsworthy moved to a house at Coral Close, Avalon which was purchased by both of them as tenants in common the plaintiff having a 30% share. 157 The house into which they moved had 3 bedrooms and a fourth was added afterwards. The plaintiff who had carpentry skills maintained the outside of the property and did repairs as and when required. 158 Prior to the subject accident his health was good and he was concerned to maintain that good health by weightlifting 5 times a week and surfing regularly of a weekend. 159 As a young man he had played Rugby and had slipped a disc. He had regular chiropractic treatment for this and it caused him no loss of work time. 160 He played Rugby until 1991 after which he just played the odd game through to 1998 when he was coaching Rugby with a team at St Ives. 161 The relationship between the plaintiff and Mrs Goldsworthy after cohabitation commenced some 3 or months before the accident was going well. The 3 children all appeared to get on well with each other. 162 Mrs Goldsworthy described the plaintiff as a very dedicated and loving father. During the time that she knew him he was in regular employment and told her he enjoyed his work because it was the job he always dreamt of having. 163 Her evidence was that he was extremely keen on personal fitness, always had a gymnasium in his garage and he set it up on the veranda of the home which they shared and used the equipment regularly. 164 At p. 388 she was asked:- "Q. Did Paul express to you how he was feeling about things before the accident? A. Yes, when we bought the house and moved in he was just so happy, he had said that he had finally found the perfect job, he had the perfect woman and had his dream of owning his own home and getting a motorcycle again. He couldn't be happier." 165 She described him as ruggedly handsome, quite cheeky with a great sense of humour, very reliable and very loving and he had a very good memory both for short term and long matters. THE INJURIES AND DISABILITIES 166 There is no issue between the parties as to the extent of the injuries or as to the fact that the plaintiff has been left a quadriplegic with very little ability to care for himself without assistance. 167 His injuries included a head injury with loss of consciousness, damage around the 5th, 6th and 7th cervical vertebrae with immediate paralysis. He had a fracture of his lower jaw in 3 places, a fracture of his upper jaw near the nose and fractures to both cheekbones. There was a fracture of the rib on the right side with lung rupture and there was a brachial plexus lesion on the right in addition to a spinal cord injury around the upper cervical region. 168 He was initially taken to Royal North Shore Hospital where he remained for some 11 weeks. He was managed in the intensive care unit with respect to his loss of consciousness and a tracheostomy was performed. No operations were performed on his cervical injury but a neck brace was fitted. 169 Whilst in that hospital a supra-pubic catheter was inserted into his bladder. His lower jaw was internally plated as was his upper jaw and cheekbones during a procedure which lasted some hours. 170 He was transferred to Moorong Hospital for about a week but developed faecal impaction and was re-admitted to the Royal North Shore Hospital where he remained for about a week. From time to time He was re-admitted to that hospital for scans and an MRI and then underwent rehabilitation at the Moorong Rehabilitation Unit until 2 October 2000 when he returned home. 171 Between that time and January 2001 he had been re-admitted to hospital on 3 occasions principally in an attempt to improve the range of movement in his left hand. He underwent a fusion of the interphalangeal joint of the left thumb and in June 2002 he had a tendon transfer with further transfers being performed in July 2002. 172 He has suffered complications of pressure sores, urinary tract infections and a blood clot in his urine. He has also had autonomic dysreflexia. If the urinary catheter blocks up an autonomic dysreflexia results. The tendon transfers and fusions around the left hand have improved function but he still has only minimal use of that hand. 173 Management of his bladder is maintained by a supra-pubic catheter which is changed once each four weeks and which drains into a leg bag that is emptied about every 4 hours. 174 His bowel is managed by oral faecal softeners and rectal stimulants. Bowel emptying is undertaken during his showering. 175 The plaintiff has little or no movement in his right arm. He has some movement in his left arm and with the palm downwards can form a grip between his left thumb and the remaining fingers. He cannot form a fist. 176 He can feed himself using ring utensils including a fork and spoon but his food has to be cut up for him. He cannot shave but is able to clean his teeth using an electric toothbrush. His left index finger is stiff but he can use it to press buttons on a phone or other similar piece of equipment. He can assist in washing and drying his upper body but otherwise washing, drying and dressing has to be done for him by others. 177 He has various pieces of equipment appropriate to his spinal cord injury including an electric wheelchair with deep contoured Gel cushion, a manual chair with the same cushion. He has a commode chair and a PADP bed that is electric and the controls of which he can operate. He has a sleep maker mattress with an eggshell cover. To enable his carer to get him in and out of bed and in and of the chair he has a mobile electric hoist. He has a pedal machine which he uses to try to provide some movement and avoid stiffness in the legs. He also has an electric standing frame. 178 The plaintiff is left with a quadriplegia worst on the right than on the left. On the right, in addition, he has a brachial plexus lesion. He has pain throughout the body particularly involving the right arm and if it is touched he gets supra-pubic pain and pain located in his feet and legs. The fingers of his right hand are stiff. The various surgical procedures performed on his arm and hand have improved his grip but fine control remains absent. 179 He also has a neurogenic bladder and bowel. 180 The plaintiff claims that he has brain damage which has resulted in problems remembering things such as whether he has taken his medication and he repeat questions in less than a minute. His concentration wanders. 181 He gets frustrated and says things and then realises that he uses the wrong words from time to time. 182 He finds it difficult taking things into his mind and forgets what he has read in books and has to recheck. 183 At an examination conducted on 20 January 2003 Professor Jones found that examination of the upper limbs revealed extensive scars in the left forearm with evidence of tendon transfers and joint fusion in the left hand. He had about 3 out 5 power in the fingers of the left hand but this was of a coarse nature and fine movements were absent. He could oppose his thumb to his flexed fingers sufficient to undertake some activities of daily living. When writing he adopted a technique using the standard ballpoint pen with a grip reminiscent of a tenodesis style of a C6 quadriplegic without tendon transfer. Elbow flexors on the left were 4 out 5 and extensions 4 minus out 5 and wrist extension was to about 3 plus out of 5. 184 Sensation in the left arm was to the thumb at about C6. In the right arm there was source-altered sensation with allodynia and a dysaesthetic sensation to gentle touch particularly around the thumb where there was altered pinpricks sensation. Elbow flexors were 3 plus and extensors nil. Wrist extensions were 3 plus and there was no voluntary finger flexion or extension present. There was no spinothalamic sensation in the trunk or lower limbs and at that stage he had no pressure sores. 185 Professor Jones reported to the defendant's solicitors that on balance it would seem that the plaintiff had suffered some alteration in cognitive function. He believed that he would be capable of managing his own financial affairs although he would require advice for the management of large sums of money. 186 Mr Peter Rawling, a clinical neuropsychologist, reported to the plaintiff's solicitors on his examination of the plaintiff which took place on 17 January 2003. He conducted a number of tests and concluded:- "Neuropyschological testing, now almost 3 years post injury, revealed a number of deficiencies in his cognitive functioning. The primary finding was of a moderate to severe attentional deficit. His auditory-verbal working memory span (the ability to hold and mentally manipulate verbal information) was limited. He had difficulty with tests of mental tracking and requiring sustained attention and there was a mild to moderate slowing in the rate of information processing. Intellectual and higher-level executive functions were well maintained but memory functioning was compromised. His acquisition rate was slowed and there was evidence of an accelerated rate of forgetting over time. Some difficulty arose in determining the aetiology of these cognitive deficits. It is possible that they were the result of the distracting effect of chronic pain and/or the sedative effects of the analgesia required for the management of his pain. Consistent with this, a marked weakness was seen for simple tests of attention. On the other hand, the facial injuries sustained in the accident suggested that he has sustained a severe blow to the head in the accident and there was possibly a significant period of post traumatic amnesia. The preservation of intellectual functioning and the relatively greater impairment in memory over attention provided some support for the hypothesis of traumatic brain injury." 187 Patricia Jungfer a consultant psychiatrist saw the plaintiff on 13 February 2003 and reported to the plaintiff's solicitors on 19 March 2003. She expresses the view that he now presents with a moderate degree of cognitive impairments that require some supervision of his activities of daily living from a cognitive impairment perspective. 188 In addition he has had changes with regard to personality and the regulation of his emotional control consistent with organic changes seen in structural brain injury. However his physical impairments from his quadriplegia mask the significance of cognitive impairments and it is the physical impairments that lead to the greater amount of need for care. 189 She also expresses the opinion that the plaintiff presents with a cognitive disorder that occurs following a head injury. This disorder is characterised by changes in short-term memory, alteration in personality, initiative and emotional control. In the past he would appear to have had a major depressive disorder which at that stage was being treated with anti-depressants and there was an adjustment disorder with depressed and anxious moods. 190 With regard to the plaintiff's capacity to manage his financial affairs she says:- "Mr Armstead would appear to be able to manage his financial affairs on a day to day basis. His physical impairments really restrict issues about impulsive spending or inappropriate purchases and the extent of the impulsivity is not severe. He does however because of his cognitive problems have difficulties with regard to managing money that is, keeping track of paying bills and therefore he requires another party to do that. He could manage a regular allowance on a weekly basis. However he would need someone to supervise and prompt with regards to the bill paying and he would obviously benefit from financial advice regarding the establishment should he receive any form of monies in terms of a settlement. But I do not believe he requires someone such as the Protective Commission to manage his affairs, that he has sufficient reasoning and understanding to be able to advise financial managers." 191 The plaintiff gave evidence that he has no sensation from about the line of the armpits downwards. He has pain in his right arm all the time. It feels as if it is sunburnt. He feels that if his jaw is maligned. He now has to wear glasses because the muscles around his eyes were strained. 192 He has had urinary tract infections every couple of months and this is a problem which is continuing. From time to time the tube from his supra-pubic catheter gets blocked or kinked or the bag gets full in which case he suffers from autonomic dysreflexia. This causes headaches going up around the neck and face and he goes red in the face. He uses a nitrolingual spray and tablets to control this. 193 In addition he suffers from spasms through his legs, hands and arms and torso. This causes him to jump around and sometimes results in stiffness of the hand. These spasms are managed by medication. Of a nighttime he puts his hands in splints so that they do not curl over and become fists. Over the past 6 to 8 months prior to his giving evidence he had a bedsore which kept him confined to bed and resulted in the wasting in his arms, body and legs. He has to build up his muscles, particularly in the arms so as to give him further capacity to assist himself. 194 He first developed bedsores when he was living alone at the institution at Beralla in 2004. 195 He is unable to control his temperature and has difficulty coughing because he does not have the lower abdominal muscles to cough properly. 196 He is unable to change his position in bed by himself. To get from a bed to the chair a sling has to be placed around him attached to a hoist and then the hoist has to be moved with him suspended from the sling. Another hoist is required to take him in and out of a vehicle. 197 He needs help at night because he wakes up feeling uncomfortable or wants to move his position. Without help he is stuck in the same location. If he gets hot or cold he has very little ability to move bedclothes. 198 Carers prepare his lunch for the day consisting usually of sandwiches. They put it on a large plate which he can slide across his lap and pick up. On occasions he has dropped a plate and then has to wait for someone to come and pick it up and in the meantime he does not have the food. 199 When in a wheelchair he has a safety belt around him and a strap between his legs to keep them together. 200 If he is alone and something happens to his seating posture such as slipping backwards or sideways in the chair he becomes uncomfortable and pressure is applied to his pressure sore. He then has to wait around until he can get someone to help him. 201 If his right palm is upwards he can retain something in the hand but if it flops over he has no control over it or its contents. 202 Mrs Goldsworthy described his condition as extremely depressed. He would go through very long periods of being depressed and feeling useless and at other times he would be extremely irate. The children stayed away from him as much as possible because of this. 203 After the plaintiff returned home Mrs Goldsworthy altered her working hours so that she could spend more time with him to assist him. 204 In April or March of 2003 Gina, the plaintiff's daughter, left home and moved in with the plaintiff's brother and his wife who were then living in China. The plaintiff moved out of the home at Coral Close, Avalon in August 2003 under the following circumstances described by Mrs Goldsworthy at p. 402:- "He decided in the January of that year (2003) that he wanted to end the relationship and start afresh somewhere where no-one knew him, where he didn't have to live up to what he used to be, but he had to go on a waiting list. No government help. He was forced to stay in the home situation. I kept looking after him till the August when we found somewhere and his parents agreed to help finance him moving there to live. Q. Did you ask him why he wanted to end the relationship? A. Yes. Q: What did he say? A. He indicated he couldn't cope, it wasn't working, he couldn't understand that I could love him the way he was, he thought that I looked at him and compared him to what he used to be, and he couldn't cope with that. Q. Had Paul not made the decision to move out would you have remained as his carer and partner. A. Definitely." 205 Mrs Goldsworthy described the plaintiff's problems with his short-term memory by saying that she would give him medication and 5 minutes later he would ask for it. 206 The evidence of the plaintiff is that if he recovers a verdict he wants to move to Brisbane and acquire a house in which he can live. He has brothers and his daughter living there and his parents live not far away at Ballina. QUANTIFICATION OF DAMAGES 207 It is now necessary to embark upon the very difficult question of quantification of damages. 208 The main difficulty is in forecasting what is likely to happen with this plaintiff in the future. The first question to decide is on the probabilities what is his life expectancy? 209 The plaintiff is about to turn 46. The life expectancy according to the Australian Bureau of Statistics for a man aged 46 is a further 33.8 years. 210 A paper published by Associate Professor John Yeo suggest that the plaintiff's level of disability is associated with a survival rate of 77% of the years that would normally remain. However he also points out that there are factors which may improve the survival above the average. These include psychological adjustment, absence of significant pre-existing or unrelated medical conditions, high motivation in self-care and good availability of medical and attendant care. When these matters are taken into account Dr Buckley expresses the opinion that it is reasonable to increase the survival rate from 77% to 85% of the years that would normally remain. However he agreed (p.152) that urinary tract infections and bedsores keeping him confined to bed for some months over the last year or so could affect his life expectancy and reduce the increased rate he had suggested down more to the average range. 211 On the other hand Professor Jones expresses the opinion that his life expectancy is until about age 65. This would allow the plaintiff a further 19 years which is only 56% of the statistical 33.8 years remaining. 212 Having regard to the facts of this particular case I feel that it is appropriate to assess the plaintiff's life expectancy at the average figure fixed by Professor Yeo namely at 77% of the 33.8 years yet remaining in the average life expectancy. This comes to 26 years. 213 It is appreciated that in determining a matter such as life expectancy of a particular individual it seems unsatisfactory to use statistical averages. However this is in my view the most accurate, although not perfect, indicator that is available and I therefore propose to apply it. NON-ECONOMIC LOSS 214 There is no dispute that the plaintiff is entitled to the maximum allowed for non-economic loss namely for $341,000. PAST ECONOMIC LOSS 215 It is conceded that the plaintiff's net rate of pay as of the date of the accident was $650.00 per week. 216 The plaintiff claims, however, that the rates of pay would have been increased by an amount representing the CPI increases over the 5 years since the accident. Thus, as at the date of trial the earnings would be $812.00.06 net per week. This represents a claim totalling $204,291. 217 The defendant contends that the plaintiff's past economic loss should not include assumed wage loss augmented by CPI increases because there is no evidence that the level of earnings of employees of the plaintiff's pre-injury employer have followed the CPI patterns or that work and levels of pay have been available to the same extent, particularly as the plaintiff's income involved overtime. 218 With this submission I agree. The $650.00 net per week earned by the plaintiff may well have included over award payments which may not necessarily have increased in accordance with CPI patterns. The plaintiff's employer's business may have deteriorated and therefore the ability to pay the plaintiff higher wages would have been diminished. In short there is no evidence as to the state of the business by which the plaintiff was employed or as to whether the plaintiff was replaced and, if so, what his replacement is earning. Under these circumstances I would reject the plaintiff's submissions that the past wage loss should be augmented as claimed. 219 The defendant also submits that there should be a reduction of approximately 10% for adverse contingencies given that the work involved overtime which may not have been consistently available or taken up and that the plaintiff was undergoing chiropractic treatment every few weeks for a problem in his back. 220 I would reject these submissions. In the first place there is no evidence that there has been any change in the situation since the time of the accident in the employer's business. Secondly although the plaintiff did attend the chiropractor it did not affect his work at all. He continued to work hard, work overtime, exercise and remain in constant employment. 221 Accordingly I propose to allow the plaintiff past economic loss at the rate of $650.05 per week from the date of the accident to date less 1 week in accordance with s. 124 of the Motor Accidents Compensation Act. Accordingly the allowance under this heading is $176,163.55. FUTURE ECONOMIC LOSS 222 The calculations of the plaintiff are based upon $812.06 per week which is the pre-injury net earnings augmented by CPI to date to age 65 or 70. 223 The defendant however submits that future economic loss should be based upon $650.00 net per week to age 65 less a reduction of 20% for adverse vicissitudes. 224 The increased rate of reduction is based on the facts that the work of a fitter and turner is physical placing postural strains on the neck and thorax and spine; that the plaintiff has in the past complained of pains in his spine and had chiropractic treatment for it. 225 Furthermore the defendant claims that some modest reduction should be made for the potential of the plaintiff to find some limited part-time work. 226 With regard to the first submission I am satisfied that the plaintiff has been able to work notwithstanding his pre-existing problems and I see no reason why he would not have been able to continue such work until the age of 65. It is true to say that his earnings pre-injury included overtime. On the other hand he may have had increased overtime or less overtime in the future. His past work history demonstrates that when in need of extra earnings he took on a second job to meet the shortfall in his monetary needs. 227 As to the potential of the plaintiff to find some limited part-time work I regard this, having regard to the plaintiff's undoubted physical disabilities, as totally unrealistic. He has indicated a genuine interest in finding work assisting others who are quadriplegic. This may well be voluntary work. Even if voluntary it would be good for the plaintiff's condition to take part in it. But to suggest, as the defendant does, an average allowance of between $50 and $100 per week for residual earning capacity, I regard as totally unrealistic. I regard his earning capacity as reduced to nil having regard to all of the evidence. 228 I propose to allow him $650 net per week to age 65 less 10% for adverse vicissitudes. I have reduced the normal rate of 15% to 10% because having regard to the plaintiff's capacity to work before his injury I am satisfied on the probabilities that if uninjured his rate of earnings would have increased and that this would offset any possibility of adverse vicissitudes to the extent reflected by the reduction proposed. 229 Accordingly under this heading I allow $378,062.00 This represents the present capital value at 5% per annum of $650.06 for 26 years less 10%. LOSS OF SUPERANNUATION BENEFITS 230 Both parties agree that this should be calculated at the rate of 8% in respect of the past and 9% in respect of the future. 231 However, the plaintiff submits that that percentage should be applied to the gross earnings lost both for the past and the future. 232 As against this the defendant relies on s.15A of the Civil Liability Act which states:- "The maximum amount of damages that may be awarded for economic loss due to the loss of employer superannuation contributions is the relevant percentage of damages payable (in accordance with this Part) for the deprivation or impairment of earning capacity on which the entitlement to those contributions is based." 233 The defendant submits that the words: "damages payable . . for the deprivation of impairment of the earning capacity on which the entitlement to those contributions is based" must relate to the net wage loss after tax because that is the amount upon which the damages for deprivation or impairment of earning capacity is based. 234 Whether this submission be correct or not (and I am inclined to think that it is) I propose to allow damages for loss of superannuation based upon the appropriate percentage applied to the net earnings loss allowed. The reason for this is that the amount which the plaintiff would have received at the end of his working life for superannuation had he not been injured would have depended upon a number of imponderables such as the rate of applicable income tax, the fees charged by the superannuation fund, and the earnings derived by the superannuation fund from the monies contributed. 235 Taking all these matters into account I am satisfied that a reasonable method of calculation of the loss of superannuation benefits is to apply the relevant percentage to the net earnings loss actually allowed. 236 I therefore allow for loss of past superannuation benefits $14,093.08. 237 I allow for loss of future superannuation benefits $34, 025.58. PAST OUT-OF-POCKET EXPENSES 238 It is agreed that these total $137,632.20. FUTURE MEDICAL EXPENSES 239 The plaintiff has provided a list of future medical expenses based upon the medical evidence. The defendant agrees with this with 3 exceptions. 240 First the defendant disputes that the plaintiff's life expectancy is 29 years as alleged by the plaintiff. For reasons already given I propose to allow 26 years. 241 Secondly, the defendant claims that the claims for physiotherapy and psychiatric counselling are excessive. 242 The plaintiff claims for physiotherapy 6 treatments per annum at $110 each. This is based upon the report of Dr Buckley. 243 The defendant submits there should be no allowance made for physiotherapy because the plaintiff gets chiropractic treatment for his neck every few weeks and physiotherapy is not required. 244 The chiropractic treatment which the plaintiff now receives is really a continuation of his previous treatment and having heard the nature of it I query whether it is really necessary. However it does make the plaintiff happier and no claim is made for it. This treatment relates to the neck. 245 I am satisfied that further treatment could be required in the future and that under the circumstances it is appropriate to allow for 2 physiotherapy treatments per annum. 246 The plaintiff claims 4 sessions of psychiatric counselling per year at $230 each. The defendant submits that the plaintiff has indicated no propensity for seeking psychiatric counselling and that his treatment appears to have been largely a general practitioner level and is likely to remain so. A general practitioner can deal with the emotional or psychiatric problems with which may arise from time to time. 247 The difficulty in determining the appropriate amount to allow for psychiatric counselling is that one does not know to what extent the plaintiff may be frustrated and depressed in the future. He intends to move to Brisbane to be close to his family. This should improve his condition. On the other hand it may not. 248 Bearing all of this in mind I propose to allow one psychiatric counselling session per annum at $230. It is appreciated that there may be some years in which he will not seek this treatment but there may be others where he will seek it more than once. 249 After making these adjustments and also recalculating the plaintiff's figures on the basis of a life expectancy of 26 years I allow for future medical expenses the total sum of $136,277.86. PAST CARE 250 The defendant agrees with and accepts the plaintiff's calculation of past care from 10 March 2000 to 17 August 2003 (provided in the main by Mrs Goldsworthy) at a total of $129, 937. WHEELCHAIR AND SPECIAL NEEDS 251 In Schedule 8 of his submissions the plaintiff sets out the annualised costs of wheelchairs and other special needs identified by Ms Croker, occupational therapist appearing at pages 210 and 211 of Volume 3. The defendant challenges only 3 items. 252 The first is the annualised cost of manual wheelchair claimed at $400. It contends that the manual wheelchair gets very little use because he always uses the electric wheelchair. 253 The answer to this submission that the plaintiff has been confined to bed for some months in the past year because of pressure sores and so the muscles in his upper limbs have wasted. In the future he needs to use that chair if for no other reason than to assist in increasing the muscles of his arms. 254 Furthermore it is a folding manual wheelchair which is very convenient when he has to go in a vehicle because it can be folded up. The claim is based upon a cost of $2,525 for a basic model replaceable every 8 years. 255 I am satisfied that once the plaintiff's pressure sores are cured he will use the manual wheelchair with increasing frequency and that the amount claimed is quite reasonable. 256 The next challenge is to the bed of $273.33 per annum and the mattress of $272.50 per annum. The defendant submits that the plaintiff would require a bed and mattress even if uninjured. 257 The schedule prepared by Ms Croker indicates that the bed is a special adjustable Hi-Lo low bed at a cost of $4,100 annualised over 15 years. This is not the type of bed which would be required by the plaintiff if uninjured. 258 The mattress is a special air pressure relief mattress which is designed to reduce the risk of pressure sores. It costs $2,725 and has been annualised over 10 years. I consider this claim quite appropriate. 259 The final challenge is to $60.00 for the annualised cost of a remote control television set. 260 Ms Croker has included in her claim a remote control television at a cost of $600.00. The defendant claims that this would be required in any event if uninjured. With this I agree and I therefore deduct the $60.00 annualised cost from the claim. 261 This reduces the amount allowed to an annual cost of $5,186.07. 262 Applying a life expectancy of 26 years this amounts to a total allowance under this heading of $76, 399.61. FUTURE CARE REQUIREMENTS 263 This is the biggest single item in the plaintiff's claim for damages and the one over which there has been the greatest amount of dispute. 264 The plaintiff claims care on the basis of 24 hours per day as recommended by Dr Buckley and Ms Croker. In addition he claims the cost of a second carer for a total of 4 hours per day being 2 ½ hours each morning and 1 ½ hours each evening. 265 The rates claimed are those for engaging such carers through an agency. 266 The defendant submits that 24 hour per day care is not necessary and relies upon the evidence of Professor Jones, a rehabilitation consultant, and Ms P Tiebenger, occupational therapist, pointing out that their calculations are in accordance with the MAA Guidelines (Exhibit 12) which are based on evidence based medicine. 267 Those Guidelines describe the range of mobility and movements of a C6 quadriplegic. That range includes such matters as:- "A range of assistance is required from some assistants to independence with wheelchair to bed and bed to commode transfer and minimal assistance required with other transfers." 268 Because of the plaintiff's minimal use of his right arm and only slight use of the left arm more than minimal assistance is required with "other transfers". A further ability envisaged by the Guidelines in a C6 affected quadriplegic is that he can drive an appropriately modified vehicle using hand controls but may require assistance and aid with transfer in and out of the vehicle and loading and unloading the chair. Because of the plaintiff's lack of use of his right arm and only slight use of his left arm he is unable to drive at all. Consequently he must be regarded, in my view, as a person who is more disabled than the description set out in the guidelines for a C6 affected quadriplegic. This was the view of Ms Croker. It was ultimately agreed with in cross-examination by Ms Tiebanger and even begrudgingly conceded by Professor Jones in cross-examination. 269 On the basis of C6 quadriplegia the Guidelines suggest personal assistance of 28 to 35 hours per week and domestic services of 18 to 21 hours per week. On the basis of C5 quadriplegia the Guidelines suggest personal assistance of 42 to 49 hours per week and 18 to 21 hours per week for domestic services. In addition an inactive sleepover of 56 hours per week is recommended. 270 Even Professor Jones says that this plaintiff requires the services of a sleepover which means a continuous period during which a person is required to sleep at the workplace and be available to deal with any urgent situation which cannot be dealt with after the end of the sleepover period. 271 On behalf of the defendant it is pointed out that the plaintiff's own evidence accommodates the possibility of the plaintiff being left alone for periods of 3 hours at a time. This contention however overlooks that during that period the carer would be attending to such matters on behalf of the plaintiff as doing his shopping which he is unable to do. 272 Whilst he can travel around a supermarket in his electric chair he cannot reach items from the shelves, handle the items himself satisfactorily or handle the money necessary to pay the cashier. Furthermore in most supermarkets the exits at the cashier would be too narrow for an electric wheelchair. Consequently even if the plaintiff goes to the shops he would still need an assistant. 273 The evidence of the plaintiff and Mrs Goldsworthy indicates a situation where it is unlikely that the plaintiff could survive safely with a reasonable quality of life in the absence of full-time care. When he was living with Mrs Goldsworthy from discharge from hospital until separation in August 2003 he had, in effect, the benefit of a full-time carer either commercially provided by Homecare Services of NSW or by Mrs Goldsworthy. He was left alone for short periods only. 274 The evidence satisfies me that the plaintiff not only suffers complete quadriplegia at level C6 but also a brachial plexus injury and some diminution in his memory and cognitive powers. He has virtually no use of the right arm and very limited use of the left arm. After surgery he is left him a pincer grip between his fingers and thumb. His capacities are very small and he has numerous difficulties associated with falls from his wheelchair, dropping of medication and foods, inability to control his body temperature and the sequelae of autonomic dysreflexia. 275 I am therefore satisfied on the probabilities that full-time care is required. 276 The defendant further submits that insofar as any care organisation charges a commission for providing a carer this should be very substantially reduced or eliminated because of the need for the plaintiff to mitigate his loss and the probability that he would in fact do so by contracting direct with the carers and not paying any additional service fee except in situations where there was a form of emergency such as the employed carer not being available. The defendant acknowledges that there would some administrative costs in relation to looking after the payment of carers and that the plaintiff is competent to attend to this. 277 This submission overlooks the fact that if the plaintiff were to employ carers direct his obligations goes far beyond the mere payment of the appropriate rate of pay. 278 In the first place he has to calculate that rate of pay. Secondly, he has to deduct from it the appropriate rate of income tax. Thirdly, he has to pay that tax to the Australian Taxation Office. Fourthly, he has to calculate the appropriate rate of superannuation and remit that to the appropriate superannuation fund. Fifthly, he is confronted with the difficulties arising out of Goods and Services Tax. This tax is payable upon domestic services but not upon nursing services. The appropriate amount would have to be calculated and sent to the appropriate taxation authority. Sixthly, he would have to arrange for Worker's Compensation insurance and public liability insurance and to pay the appropriate premiums. Seventhly, he would have to arrange for the recruitment of replacement staff once a particular carer ceased his or her employment. This would involve the cost of advertising and interviewing candidates. 279 I am satisfied that these administrative obligations are beyond the capacity (especially the physical capacity) of the plaintiff. He would then have to engage a person to look after these matters for him. 280 If the plaintiff, as suggested on his behalf, uses an agency then all of these administrative matters are looked after for him and their costs are included within the margin charged by the agency. 281 There was an issue as to the best method of delivering care. At one stage it was suggested that the best method was by having a person or a couple living in. However Ms Croker and Ms Andrews and Professor Jones agreed that, if the plaintiff were to be afforded full-time care, it is best delivered by way of rotating shifts. 282 It needs also to be borne in mind that the nature of the care required is not just domestic assistance. It also requires someone who is used to dealing with people who are quadriplegics and who can handle the transfers by means of the sling and hoist and also who can attend to the changing of the urine bags and the bowel clearance. 283 Accordingly I agree with the suggestion contained in the report of Complete Domestic Care of 5 September 2003 appearing in Folder 3 from p. 216, that someone with the skill of an Assistant In Nursing is required. 284 This report also points out that the carer will need to be provided with food and a room in which to stay at least during the sleepover periods. 285 That report also points out that domestic carers with Assistant In Nursing experience will provide washing and ironing, cleaning kitchens and bathrooms, cooking, sweeping, vacuuming and washing floor surfaces, running short errands including shopping, making beds, dusting, assistance with nail, teeth and hair care, dressing and bathing, accompanying client to outings and medical appointments as well as supervision and companionship. 286 In its report of 2 September 2004 that organisation sets out the rates of charges for four different agencies. There is a variation in hourly rate of some $6.00 between them. 287 The plaintiff has based his claim upon the average of those 4 rates. 288 On behalf of the defendant it is submitted that this is inappropriate and that one should take the lowest rate. 289 In my view the plaintiff is entitled to a reasonable service and a reasonable service would include a cost based upon the average rather than upon the minimum. 290 The plaintiff, as mentioned earlier, claims for an extra 4 hours per day for a second person to assist the carer during the heavy lifting periods in the morning and evening. It is the protocol in hospitals for the sake of occupational and health safety of care workers that a second person be present. Professor Jones said that is was quite unnecessary and that one person can do the job on his/her own. 291 I consider it appropriate for the sake of occupational health safety that a second person be engaged to assist the carer during the heavy times. However this would not be necessary for the total period that these heavy jobs occur. A period of 3 hours per day would be sufficient. 292 After making these adjustments the total cost of carers on a weekly basis is $5,305.16 details of which are:- Monday to Friday – active and sleep over shifts $614.98 X 5 $3,074.90 Saturday active and sleep over shift $689.45 Sunday active and sleep over shift $786.91 TOTAL $4,551.26 Add allowance for public holidays 8 per annum – average loading $346 per day 8 X $346 divided by 52.18 - $53.05 Add 3 hours for second carer Monday to Friday add $31.21 per hour $468.15 Add 3 hours for additional carer Saturday @ $35.65 per hour $106.95 Add 3 hours for second carer on Sunday @ $41.75 per hour $125.75 Total cost of carers on weekly basis - $5305.16 293 Capitalising this for 26 years at 5% per annum gives an allowance for future care of $4,078,076.48. FUTURE CHEMIST EXPENSES 294 It is conceded that the cost of future chemist expenses is $5,713 per annum. 295 Capitalising this figure over 26 years life expectancy at 5% per annum yields an allowance under this heading of $84,164.96. PARA-QUAD NEEDS 296 It is agreed that the annual costs under this heading are $5,452.34. 297 Capitalising this at 5% per annum for 26 years gives an allowance for this heading of $80,329.15. GARDENER - HANDYMAN 298 No claim in respect of a handyman is made under this heading. This is dealt with in relation to building costs later. 299 The plaintiff, however, claims the cost of a gardener at a rate of 1 ½ hours per week. 300 The defendant says that there is no need for a gardener. Any house that the plaintiff constructs or purchases does not need to have a lawn or garden which requires a gardener. Also such gardening as may be required could be done by the carer. 301 As mentioned earlier gardening is not included within the job description of the carer. 302 It is quite true that the plaintiff could so construct his house and grounds that there would be no need for a gardener. But that would be a very bare and uninteresting form of environment. He is entitled to be compensated to a reasonable extent and a reasonable extent would include having a house which would have some greenery around it. 303 I therefore consider it reasonable to allow 1 hour per week at the rate stipulated at $34.15 per hour. 304 When this is capitalised for 26 years at 5% per annum the result which is allowed under this heading is $26,251.10. TRANSPORT COSTS 305 Under this heading the plaintiff claims the amount by which a special vehicle to transport him would exceed the costs of an ordinary vehicle annualised on the basis that he travels 15,000 kilometres per year. 306 The defendant submits that prior to the accident the plaintiff had a vehicle and also a motorbike. This is not correct. He had the motor car before he had the motorbike. 307 The defendant further submits that there is no indication that any vehicle he would need for his transportation would cost more than the total of the motor vehicle expenses he would have had if the accident had not happened. 308 The evidence contained in the report of Mr Wood of the NRMA contradicts this. 309 Thus the capital cost of a V W Transporter van with tracker wheelchair conversion including dealer delivery charge and Government Stamp Duty totals $81,997 whereas the cost of a Toyota Camry on the road is only $29,087. This affects the depreciation content of the calculation. 310 The cost of registration and insurance for the V W automatic van with wheelchair conversion is some $300.00 per year more than the cost of those items for the Camry. 311 The cost of fuel for the van is some $500.00 more than the cost of fuel for the Camry per annum. Similarly the maintenance costs are higher. 312 These figures are calculated on the basis of a use of 15,000 kilometres per year. 313 The defendant claims that a person such as the plaintiff being transported by others would be unlikely to do as much travelling as he would have had the accident not occurred. Therefore a calculation based on 15,000 per year is excessive and it should be closer to 10,000 per year. 314 The plaintiff intends to move to Brisbane where he will have relatives in that city and also parents in Ballina. It is not unreasonable that he should be driving around visiting his family. I consider it quite reasonable to assume the usage of 15,000 per year. 315 In the light of the calculations provided by Mr Wood in his reports appearing the plaintiff's Volume 3 at pp. 233 and following I consider the method of calculation set out by the plaintiff in its Schedule 13 as quite appropriate except that it should be varied to allow for a life expectancy of 26 years. 316 On this basis I allow for transport costs the sum of $89,631.56. ARCHITECTURAL NEEDS 317 J J Newlin-Mazaraki architects have submitted 2 reports. The first was based upon the plaintiff continuing to live in the house at Coral Close. The second dated 21 January 2004 is based upon the fact that he has left that address and intends to move to Brisbane to be close to his family members. 318 For the purposes of giving an assessment of extra costs of housing due to the plaintiff's disability the reporter has assumed that the plaintiff will build a new home in which his disabilities are catered for. 319 He then includes in his report two designs. The first is the basic design for an uninjured person and his daughter. It is a design for a two-bed roomed house with one bathroom, a laundry, kitchen, living room and dining room. 320 The second design is based upon the first plan but is altered and enlarged and has extra facilities to meet the requirements of the plaintiff in his disabled condition, 321 This second design includes what is described as "live-in carer's accommodation comprising a bedroom, lounge room, kitchenette, and en suite bathroom. 322 In making an allowance for carers I have already adopted the basis that the plaintiff would have a roster of carers provided by an agency. Accordingly it would be inappropriate to allow in addition the costs of extra building costs for live-in carers. 323 Undoubtedly, there has to be provision for a bedroom for a carer – particularly one performing sleep-over duties. But the provision of whiat is a self contained flatette is considered unreasonable. 324 Which brings us back to the first design which is for the plaintiff in an uninjured condition. It allows for only two bedrooms. I have some difficulty in accepting that in an uninjured state a person would build a house with only two-bedrooms. In this day and age most houses are built with three-bedrooms and indeed two-bed roomed houses would be very difficult to sell on the market. Accordingly, I would regard a reasonable basic house as one with three bedrooms. Which would provide accommodation for a carer attending on a roster basis. 325 Accordingly, I do not allow the cost attributable to the live-inn carer's accommodation of $75,289.50. 326 Other extras such as a larger garage and accommodation for his equipment is quite reasonable in my view. 327 I shall deal later with the question of an indoor hydrotherapy pool. 328 On behalf of the defendant it is submitted that a purpose built house would be no different in terms of total cost from those he would have had if he had not been injured except for the cost of air-conditioning. The argument continues that the size of the house is the same, it is just the layout of rooms within that total size that needs to be altered and this does not result in extra cost. 329 This submission is contrary to the evidence. 330 I have carefully considered that costing set out in the reports of Mr Mazaraki and also of the quantity surveyor (Woollam Parkinson) and feel that, when they are compared with the costing given by Mr Weyland to the defendants, they are quite reasonable. However they do require some modifications. 331 I have carefully considered this schedule of costs set out in the Woollam Parkinson report at pp.79 and following of Folder 3. 332 They estimate the cost of building the basic house as $119,358.40 and of building the disabled person's house at $599,680.01. 333 I deduct from the costs of the disabled house the cost of live-in carers' accommodation of $75,289.50 and of the hydrotherapy pool of $117,902.80. This is a total deduction of $193,192.30 leaving a cost of $406,487.71. 334 The allowances for consultants' fees escalation and contingency totalling $96,937.95 require recalculation. If one deducts the amounts for these items totalling $96,937.95 from the estimate of $406,487.71 one is left with a net figure of $309,549.77. 335 On this figure I have recalculated the consultants' fees at 6%, the escalation costs at 4.5% and the contingency costs at 10% which gives a total of $63,457.67 which has to be added to the $309,549.77 giving a total estimated costs of building a house for the plaintiff in this injured condition of $373,007.44. 336 The difference between $373,007.44 and $119, 358.40 (the estimated cost of the basic house) is $253,649.04. This is the figure which I will allow for the extra costs of building a house for the plaintiff in his injured condition. 337 I now pass to the question of the hydrotherapy pool. 338 The plaintiff has been unable to undergo hydrotherapy in the past because he had repeated urinary tract infections. Accordingly he has never used one. In any event the evidence clearly indicates that the specified full-sized pool of approximately 9 metres by 4 metres would be far too large for his personal use. 339 A more appropriate form of pool is contained in the report of Custom Leisure Pools & Spas being Annexure C1 to the report of Mr Weyland to the defendant. This is a big SIR series 1 pool, 3 metres by 2.3 metres by 850 millimetres deep. Its price delivered within NSW is $11,335 plus GST which gives a total price of $12,468.50. 340 In addition there would be the cost of installation plus the cost of providing an appropriate hoist to carry the plaintiff in and out of it. 341 It is uncertain that the plaintiff would ever use such equipment. There is however a possibility that he could use it and I propose to allow for that possibility the sum of $10,000. 342 This brings the total additional construction costs for a disabled home up to $263,649. 343 The plaintiff claims annual maintenance costs of $9,905.51. The details of the calculations for this sum are set out in the report of Woollam Parkinson at p. 82 of Volume 3. They include an allowance for a handyman of 4 hours per week at $38.00 per hour. 344 Having omitted the swimming pool I consider 4 hours as excessive and would allow 2 hours per week which brings the allowance for this down to $3,952. I am satisfied that the remaining maintenance allowances in that report are reasonable and so allow for maintenance $5,953.51 p.a. or $114.09 per week. Allowing this for a life expectancy of 26 years the capital sum at 5% per annum is $87,700.98. 345 The air-conditioning costs are claimed at $2,339.69 per year. I am satisfied that this is a reasonable allowance and after recalculating for a life expectancy of 26 years the amount allowed is $34,468.50. 346 I disallow the amount claimed for pool and hoist maintenance for the reasons set out earlier. 347 The plaintiff also claims $240.00 per annum in respect of the additional power costs associated with a disabled home. This is supported in the report of the quantity surveyor at p. 82 of Volume 3. No details are given to support it. However there is no doubt that there are extra lights plus power to operate the various exercise machines, the beds and the hoist and also to recharge the battery of the electric wheelchair. In these circumstances I consider this a reasonable sum. I therefore allow $4.60 per week for 26 years which capitalises at 5% per annum at $3, 536.02. 348 The plaintiff also claims equipment replacement costs totalling $5,999.17 per annum. The details are set out at pp. 72 and 73 of the third folder in the report of Mr Mazaraki. These items include an allowance of $2,749 per annum in relation to pool heater, pumps and plant. For reasons already given I do not allow this. Accordingly I allow under this heading annual costs of $3,250.17 capitalised at 5% per annum for 26 years which comes to $47,882.32. 349 The plaintiff also claims $16,300 being the cost of reconverting the house from one suitable for a person with the plaintiff's disabilities to one which is suitable normal healthy person. 350 There are a number of reasons why I do not propose to allow this item. 351 In the first place if it is to be incurred it is not incurred immediately but at some indeterminate date in the future when the house is put on the market for sale. 352 In the second place the measure of damages would not be the cost of reinstating the house but rather the extent to which the value of the house in its present condition is less than the value of the house without those alterations. There is no evidence that there would be any difference in value. 353 In the third place the house in its present condition could well find a ready market amongst people with disabilities. 354 Accordingly nothing is allowed for this item. 355 When the foregoing items are added the total is $437,236.86 which is the sum I allow for architectural needs. COMPUTER NEEDS 356 The plaintiff claims the costs annualised for the balance of the plaintiff's life of purchasing and running a computer. 357 On behalf of the defendant it is submitted that he should not be allowed this cost because he had one in the house before the accident. 358 It is quite true that there was a computer in his partner's house before the accident and that from time to time he used it. However he did not have one of his own. 359 The plaintiff did concede that even if there had been no accident he probably would have had a computer with access to the Internet. On the other hand Dr Buckley in his report of 14 August 2001 proposes that the plaintiff be provided with computing facilities in view of his poor mobility and therefore limited access to information outlets. He recommends that the computer be fitted with up-to-date software and operating systems to maximise access to the Internet and in addition the computer should have CD-Rom facilities with a colour printer attached. 360 I am satisfied that the plaintiff should have a computer and associated equipment not for the purpose of recreation as would have been the case if he was uninjured but to give him a better quality of life in view of his poor mobility. 361 An assessment was conducted at his former home at Avalon on 27 March 2003 by Mr Smith of Ability Technology. See Volume 3 p. 263 and following. 362 The plaintiff had some experience with a computer in his work when he programmed lathes. However he has limited experience with a standard computer and software. Because of his disabilities he can only cope at the keyboard with one finger and is unable to use a mouse. 363 Mr Smith tested the plaintiff with a "big keys" keyboard which has keys four times the normal size. The plaintiff was able to use this more readilly. 364 A speech recognition programme such as Dragon Naturally Speaking was recommended. The plaintiff would be unable to use the headset microphone that comes with the package and so a desk-top microphone is recommended. In my view it is appropriate that the plaintiff should have this because once he has mastered the programme it will greatly facilitate his use of the computer. 365 A special mouse is recommended which has larger buttons and which the plaintiff was able to use with a side of his hand. 366 A CD tower is recommended to give him access to CD's that can be preloaded. The plaintiff is unable to handle CDs himself. This will facilitate his use of the computer and is rendered necessary by virtue of his disabilities. 367 I do however have concerns over some of the charges and the relevance of some of the items to the circumstances of this plaintiff. In addition I would regard the estimated life of the hardware as 4 years rather 3 years. 368 The Compaq Presario Home Computer has specifications appropriate to the plaintiff. I accept this initial cost at $2, 950 which gives an annual cost of 1 quarter of this. 369 In addition there is claimed the sum of $1,018 as the capital cost of a TFT 17 inch monitor. One can purchase a home computer with the same specifications which include, for the same price, a flat screen 17 inch monitor. I see no reason for this to be extra charge. 370 The cost of a printer and scanner combined at $588.00 is reasonable and I would annualise this by dividing by four. 371 Similarly I regard the CD stacker costing $1,721 and the SCSI card costing $132.00 as reasonable and I would annualise these over 4 years. 372 The joystick and digital camera are undoubtedly gadgets which anyone would like to own. However I consider them as inappropriate to be included within the plaintiff's damages. 373 The special microphone costing $639.00 and the trackball mouse costing $42.00 are reasonable expenses and should be allowed annualised over 4 years. 374 Under the heading of software Mr Smith has made no initial charge for the operating system or Norton Anti-Virus saying that it is included with the system. This is correct. However in relation to the Anti-Virus programme there are annual costs of updating it for which $70.00 is allowed. I regard this as reasonable. 375 Mr Smith has included no cost for Microsoft XP Professional. A program of this standard is not normally included with the system on purchase. However I note that special interest software and recreational software are allowed totalling $900.00. I would include within this the cost of the Dragon Naturally Speaking Programme and the extra cost of the Microsoft Office XP Professional and would allow it. The recommendation is that these be written off over 2 years. I regard this as excessive and would write them off over 5 years. 376 The recommendation is for setup services costing $660.00 annualised at $220.00 and once off training costs totalling $2,460. 377 Installation of driver softwares and delivery are usually done as part of the initial purchase. There would however be the cost of installing non-standard items. The plaintiff would also have to be trained in their use. I would therefore allow a one off cost of 4 sessions at 2 hours plus travel amounting to $1,960. 378 The cost of an adjustable height desk of $880.00 written off over 6 years and $147.00 per annum plus a copyholder and disk boxes of $90.00 written off 4 years at $23.00 per annum, I consider reasonable. 379 Mr Smith also includes an allowance for home automation. These to some extent are already included within the architectural costs of the house and I would not allow them here. 380 Telephone technical support as needed is a reasonable requirement but I consider the $495.00 as excessive and would allow $200.00 per year only. I would also include within this $200.00 the allowance for warranty which may or may not be required. 381 Internet costs, being access fees to a broadband service, of $720.00 per annum appears high when there are many companies advertising broadband at $50.00 per month or $600.00 per year. However there are some additional costs including telephone lines and I would therefore allow for this $650.00 per annum. 382 I would not allow the cost of cable television. This is something that can be purchased if the plaintiff wants it as part of his general recreation but it does not in my view constitute a matter which should be included within these damages. 383 For consumables such as printer cartridges, electricity costs and household insurance an annual cost of $500.00 is nominated. This figure may be a norm for a healthy person but for the plaintiff his use of these items would limited and I would therefore allow him $150.00 per annum. 384 To summarise:- ALLOWANCES FOR COMPUTER ITEM EST LIFE COST COST P.A. IN YEARS Home Computer 4 2950.00 737.50 Printer and Scanner 4 588.00 147.00 CD Stacker 4 1721.00 430.25 SCSI card 4 132.00 33 Microphone 4 639.00 159.75 Trackball Mouse 4 639.00 159.75 Anti Virus Program 0 0 70.00 Special Software 5 900.00 180.00 Training 26 1960.00 75.38 Adjustable height desk 6 880.00 147.00 Copy holder, disk boxes 6 90.00 23.00 Telephone Technical Support and Warranty 1 200.00 200.00 Internet Costs 1 650.00 650.00 Consumables 1 150.00 150.00 11499.00 3162.63 385 The sum of $3162.63 per annum capitalised at 5% over 26 years equals $46,590.90. HOLIDAY REQUIREMENTS 386 I consider most of the claim for holiday requirements as quite excessive. The assumptions upon which the report from Travel World are based are inapplicable to the plaintiff's circumstance. He intends to move to Brisbane where he will be within reasonably close proximity to his family members. 387 I consider it reasonable to allow him the costs of 4 weeks holiday per annum. It is unlikely that he will require airfares. If he wishes to embark upon this then it is something for which he will have to pay and I consider it unreasonable to visit such costs upon the defendant. 388 Furthermore I have already allowed within the transport costs an allowance for use of the vehicle for the purpose of taking him on holidays. No additional amount should be allowed. 389 On top of this I have already allowed within the costs of carer a full-time carer on rotation for 24 hours per day plus a second for 3 hours per day. I am not satisfied on the probabilities that an additional carer is required if he does go away. 390 I consider it appropriate to include within the plaintiff's damages the cost of an extra room to accommodate the carer at $232.50 per night for 28 nights and also sustenance of $100.00 for the carer for 28 days. These total $9,310 per annum which is equivalent to $178.42 per week. Capitalising this for 26 years at 5% per annum the result is $137,151.45 and this is the amount I allow for holiday requirements. 391 It is appreciated that the plaintiff may incur greater expenses in some years and lesser expenses in some years. What I have tried to do is to establish a fair average over the next 26 years. COST OF FINANCIAL MANAGEMENT 392 On behalf of the plaintiff it is claimed that due to cognitive losses caused by the subject accident the plaintiff has difficulty in managing money, keeping track of paying bills and therefore requires financial advice for the establishment of his funds even though he does not require the services of the Protective Commissioner. 393 On behalf of the defendant it is submitted that no damages should be allowed under this heading. It is further submitted that the plaintiff does not have a tutor, no suggestion has been made that he would ask for or consent to or be made subject to an order under the Protected Estates Act. Furthermore the plaintiff considers he is able to manage his financial affairs. 394 Professor Jones did say in evidence that if the plaintiff were his patient he would recommend that he have some financial advice in the administration of any verdict he obtained. However the Professor did not indicate whether this was due to any mental deficit caused by the accident or whether it was due to the plaintiff's lack of experience with substantial sums of money. 395 I have carefully considered the evidence of Dr Jungfer, Dr Buckley and the report of Mr Rawling (all of which have been set out earlier), and I am satisfied on the balance of probabilities that the only cognitive deficit which the plaintiff has is some slight lapses in his short-term memory. He is however capable of thinking things through. His answers to questions were logical. In short I am not satisfied on the balance of probabilities that he suffers from any mental deficit which would prevent him from managing his own funds. 396 I would, with respect, paraphrase what Professor Jones said and say that if he were my client I would recommend that he get financial advice. This is not on the basis of his mental deficit but rather on the basis that as a person in possession of a substantial sum of money he is vulnerable to people who might try to relieve him of it and also because he is totally lacking in experience in handling such sums. 397 In the case of The Nominal Defendant v Gardikiotis 186 CLR 49, Brennan CJ, Dawson, Toohey and Gaudron JJ said at p. 52:- "True it is that, but for the accident the respondent would not have a verdict to invest and, thus, would not need assistance in its management. But it is contrary to commonsense to speak of the accident causing the need for assistance in managing the fund constituted by her verdict monies in circumstances where her intellectual abilities are not in any way impaired." 398 McHugh J in the same case said at p. 55:- "But a different area is reached when the plaintiff seeks damages, not for expense necessarily incurred as the result of a disability caused by the defendant's negligence, but for an expense arising merely from the size of an award of damages and the exercise of the choice by the plaintiff as to how to invest those damages. The expense of exercising that choice is not the consequence of the plaintiff's injury. It is the result of the plaintiff's decision to invest his or her money (usually in a professionally managed fund) rather than to spend it or to invest in a fixed asset or some other form of investment. It is true that such an expense would have not been incurred but for the defendant's negligence. But the Common Law of Australia has rejected the "but for" test as the legal test of causation although "applied as negative criterion of causation, that test has an important role to play in the resolution of the question". In this particular case I am satisfied on the probabilities that any cost of financial management is an expense not necessarily incurred as the result of a disability caused by the defendant's negligence but for an expense arising merely from the size of an award of damages and the exercise of the choice by the plaintiff as to how to invest those damages. 399 Accordingly I would not allow the cost of financial management. SUMMARY 400 Set out below is a summary of the amounts allowed in the plaintiff's damages. ITEM AMOUNT ALLOWED Non Economic Loss 341000.00 Past Economic Loss 176163.55 Future Economic Loss 378062.00 Past Superannuation 14093.08 Future Superannuation 34025.58 Past Out of Pocket Expenses 137632.20 Future Medical Expenses 136277.86 Past Care 129937.00 Wheelchair and Other Special needs 76399.61 Future Care 4078076.48 Future Chemist Expenses 84164.96 Para/Quad Needs 80329.15 Gardener/Handyman 26251.10 Transport Costs 89631.56 Architectural Needs 437236.86 Computer Needs 46590.90 Holiday Requirements 137151.45 Financial Management – Nil Allowed 00.00 TOTAL $6,403,023.34 401 I make the following findings:- i. The plaintiff's injuries were caused by the negligent driving of a motor vehicle the identity of which cannot after due inquiry and search be ascertained. ii. The plaintiff was not guilty of contributory negligence. iii. The plaintiff's damages are assessed at $6,403,023.34 402 At the request of counsel I reserved the questions of interest and costs and I invite submissions on those matters. Counsel are also at liberty to address me on perceived mathematical errors. ********** 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.