New South Wales Supreme Court CITATION : Caldwell v Ingham [2005] NSWSC 483 HEARING DATE(S) : 26,27,28,29 April 2005 2,3,4,5,6,9,10,11,12,13 May 2005 JUDGMENT DATE : 17 July 2005 JUDGMENT OF : Patten AJ at 1 DECISION : See paragraph 327 Civil Liability Act 2002 LEGISLATION CITED : Motor Accidents Act 1988 Garry Caldwell - Plaintiff Bronwen Ingham - First Defendant - Cross Claimant PARTIES : Road and Traffic Authority of NSW - Second Defendant - Cross Defendant. FILE NUMBER(S) : SC 20138/04 Mr R McIwaine SC with J Davidson - Plaintiff COUNSEL : Mr A Renshaw - First Defendant Mr T Barrett - Second Defendant. Schrader & Associates SOLICITORS : Henry Davis York Sparke Helmore LOWER COURT JURISDICTION : District Court - 144 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Patten AJ 27 July 2005 No: 20138 of 2004 Garry Ralph Caldwell v Bronwen Clare Ingham & Anor. JUDGMENT: INTRODUCTION: 1 His Honour: The Plaintiff (Mr Caldwell) brings this action to recover damages for injuries allegedly suffered about midnight on 11/12 October 1997, when the motorcycle he was riding collided with a Nissan Patrol 4WD vehicle driven by the First Defendant (Ms Ingham) at the intersection of the Pacific Highway with College Crescent and Pretoria Parade, Hornsby (the Intersection). 2 The proceedings were commenced by the filing of a Statement of Claim in the District Court on 10 May 1999. Only Ms Ingham was named as defendant. However, she, by Cross-Claim filed 23 January 2002, joined the Roads and Traffic Authority of NSW as a Cross-Defendant. I will, hereafter, refer to that Authority as RTA, which may be taken to encompass, where relevant, its predecessor, the Department of Main Roads. RTA was, by Amended Statement of Claim filed 28 January 2004, joined as a second Defendant and on 8 April 2004 an order was made transferring the matter into this court. Ms Ingham's Amended Defence admitted breach of duty of care, but alleged contributory negligence. 3 The allegations by Mr Caldwell and Ms Ingham against RTA concerned the design, control, installation, maintenance and operation of traffic signals at the intersection. RTA denied negligence, asserted that the proceedings against it were subject to the provisions of the Civil Liability Act, and alleged contributory negligence against Mr Caldwell. 4 It is convenient to deal at this stage with RTA's contention that Mr Caldwell's action against it is governed by the Civil Liability Act. Mr McIlwaine SC, who appeared with Mr Davidson for Mr Caldwell, argued the contrary. 5 The Civil Liability Act commenced on 20 March 2002. Schedule 1 Savings and Transitional Provisions provides by clause 2(1) that Pt 2 of the Act regulating personal injury damages applies to an injury received whether before or after the commencement of the Act. However, by sub-clause (2) Pt 2 of the Act does not apply to, or in respect of, an award of damages in proceedings commenced in a court before the commencement of the Act, that is before 20 March 2002. 6 Relevantly, the question is whether the proceedings against RTA are to be taken to have commenced when the original action against Ms Ingham was commenced, viz 10 May 1999, in which case the Civil Liability Act would plainly not apply, when RTA was joined as a Cross Defendant on 23 January 2002, again a date before the Civil Liability Act commenced, or on 28 January 2004, when the Amended Statement of Claim joining RTA was filed. 7 The precise point was decided by Studdert J in George v Lifese Steel Erections Pty Ltd (2003) NSWSC 1146. His Honour held, in accordance with SCR Pt 8 r 11(3) similar in effect to Pt 7 r 11(3) of the District Court Rules pursuant to which the Statement of Claim herein was amended that the action against a second defendant joined as such after the commencement of the Civil Liability Act was governed by that statue even though the second defendant had become a party as a cross-defendant before the commencement of the Act. As a matter of judicial comity and in accordance with statements contained in such cases as the recent decision of the Full Court of the Federal Court Minister for Immigration & Multicultural & Indigenous Affairs v Szans (2005) FCAFC 41, I think I should accept and follow the reasoning of Studdert J. Although Mr McIlwaine also based his submission on Pt 7 r 11(2) of the District Court Rules, I do not think that the subrule, which deals with the substitution of a party, is applicable to this case. Accordingly, I hold that Mr Caldwell's action against RTA is governed by the Civil Liability Act. The action against Ms Ingham is, of course, subject to the Motor Accidents Act. 8 Before proceeding to a consideration of the evidence, it is appropriate to set out several matters, which are not in contention. · At the intersection the Pacific Highway makes virtually a right angle turn. Although it runs generally northward from Sydney, at the intersection traffic out of Sydney changes from a westerly direction to a northerly direction. Pretoria Parade enters the intersection from the west and College Crescent from the south. · The intersection is controlled by traffic lights, first installed in 1975. The phasing of the lights was varied in 1982,1994 and 2004. · The approach to the intersection via College Crescent involves negotiating an uphill incline of between 10% and12%. · Just before midnight on 11/12 October 1997, Mr Caldwell was riding his Harley Davidson motorcycle with a pillion passenger, Mr Mathew Rook, north in College Crescent towards the intersection, intending to travel through it and continue north on the Pacific Highway. · At about the same time, Ms Ingham was driving the Nissan Patrol 4WD vehicle with three passengers south on the Pacific Highway towards the intersection, intending to make a right hand turn into Pretoria Parade. · At the time the phasing of the traffic lights was such that a right hand turn from the highway, travelling south into Pretoria Parade was permitted, either as a "filtered " turn, that is a turn between northbound traffic in College Crescent proceeding north into the Pacific Highway, or on a right hand turn green arrow which appeared, but only if the volume of traffic required it, at the end of the phase, permitting a filtered turn. · Ms Ingham brought her vehicle to a halt at the stop-line and then proceeded into the intersection, while two northbound vehicles passed. Following this she commenced her turn into Pretoria Parade. · Ms Ingham's vehicle was struck within the intersection by the motorcycle driven by Mr Caldwell, the point of impact being about midway along the nearside of her vehicle. · As Mr Caldwell approached the intersection the traffic lights facing him were green but they changed to amber before he entered the intersection. · Ms Ingham was 17 years of age and had received a provisional drivers licence only about 2 weeks previously. · Mr Caldwell was aged 28 and was a reasonably experienced motorcycle driver, although his traffic record was poor. THE ACCIDENT ACCORDING TO Mr CALDWELL: 9 Mr Caldwell, in the witness box, added little if anything to what is stated above, claiming no memory of the accident. Mr Rook, was also said to have no recollection, and counsel for neither Ms Ingham nor RTA challenged this. He was not called to give evidence. Mr Caldwell said that on 11 October, which was a Saturday, he met Mr Rook, sometime after lunch. They remained in each others company until the accident. According to Mr Caldwell, he remembers leaving Mr Rook's home at Pennant Hills with Mr Rook as his pillion passenger shortly before midnight. He remembers driving a short distance, but said his next recollection is of being in hospital. The distance between Mr Rook's home and the intersection was about 5 kilometres. Ms INGHAM AND HER PASSENGERS: 10 Ms Ingham, now a registered nurse working in the UK, but in 1997 a student, participated in a record of interview with police in January 1998, Ex F. At the accident she was driving her parent's manual vehicle for which she was licensed. 11 She told police that she was travelling south in the Pacific Highway, intending to turn right into Pretoria Parade. She said she could not recall the colour of the lights as she approached the intersection. Asked to state what happened she replied: "But I pulled into the right-hand lane, so I indicated and pulled over. And then, as I was coming towards, down like, before the white lines, two cars came up and over the hill and then I think a car turned after that. And they turned right into Pretoria. Then I came down to the intersection and I pulled right down in the intersection where my driving instructor has told me to go. And I can't recall if I stopped or if I crawled down towards the intersection. And then I checked to see if anything was coming up the road and as I was turning my light was going orange. And then as I was on, as I was turning again and I looked at the lights, I checked to see anything again and then as I was right angles, that's when the motor bike come up and hit. And then, the front of the car got pushed into the gutters, like not into the gutter but towards the gutter and the back pushed out. And then I just stalled, the guy got in, you know, put it into gear and …………………….. And then I got out and, I checked to see if the girl behind me was all right. And she was fine. And then I went up and saw the guy was on the road and talked to one of them and asked if, to see if he was alright. But I had no response from him. And then two first aiders came over and said they'd take care of it and then at that stage, Adam, the other person in the car had gone and called an ambulance. And then the police arrived." 12 In answer to a later question, she said she was in first or second gear at impact. Asked at what stage in her turn she saw the motorcycle, she replied, "No, I didn't see the motorcycle". At the time of impact, she said her vehicle was at right angles to traffic coming up College Crescent. 13 Ms Ingham gave evidence at the hearing. Cross-examination revealed that she was familiar with the intersection during daylight and that her driving instructor had pointed out the need to position herself where she could see northbound traffic in College Crescent, before turning right from the Pacific Highway into Pretoria Parade. She agreed that the further one went into the intersection before commencing to turn, the better the view of approaching traffic in College Crescent. 14 She told Mr Barrett, counsel for RTA, that she came to a stop, or near stop, at a position where she had a view down College Crescent and which was to her left of the prolongation of the College Crescent median strip. She allowed two cars, approaching in College Crescent, to pass before commencing to turn, at slow speed. As she did so, the lights facing her turned to amber. 15 For completeness, it is appropriate to record that, on the night of the accident, Ms Ingham was interviewed at the scene by Senior Constable Patricia Thomson, who recorded an unsigned interview with Ms Ingham as follows: "I said to her, "Were you the driver of Motor Vehicle Registered No. RIV-256 at the time of the collision?" She said, "Yep". I said, "What happened?" She said, "I was driving my Mum's vehicle south in Pacific Highway in the right hand lane. (Ingham indicated the median strip right turn arrow lane) I was slowing down, I went into second gear and I slowed down and stopped, before I turned, I was indicating, you have to stop because of the hill, you have to see if anything is coming. I looked and there was nothing. I turned and the light was going orange and just as I turned the motorcycle comes flying up. I just got me and the front passenger around and the motorcycle just smashed into me. It just pushed me down the road and I had a look and just stopped it where it was". I then said to her, "Did you try and brake? She said, "No, like he was going that fast, all I saw was the flashing lights. I don't know what I saw, I didn't see him till he hit me"." 16 The passengers in Ms Ingham's vehicle were Kate Gledhill, Adam Rojas, and Matthew Ostle, all of whom gave evidence. Ms Gledhill, sitting in the rear, near side seat, was not paying particular attention to Ms Ingham's driving but saw the motor cycle immediately before impact, heading for the door next to which she was sitting. She said that the driver's head actually came through the window in the impact and struck her. 17 Mr Ostle was also a rear seat passenger. He made a statement to police on 31 December 1997, Ex 1D-8, which included: "We were travelling along the Pacific Highway at Hornsby. As we were coming up to the lights at the intersection with Pacific Highway, College Crescent and Pretoria Avenue (sic) I saw the lights were red, but changed to green as we got to the intersection. It was the circle light that changed. There had been a red arrow showing with the red circle, but when they changed to green the arrow was not showing. Bronwen was going to turn right and as she came up behind a car that was stopped at the intersection, also turning right, this car has turned. Bronwen came to a stop in the intersection, and waited to make her right turn. Two cars have passed, and as they did, the traffic lights changed to yellow, with a yellow circle and arrow showing. Bronwen paused for a second and I looked and saw nothing coming, then she commenced to make her turn. Bronwen had turned the car so it was across the oncoming lanes, basically had finished her turn and was heading straight into Pretoria Avenue (sic). I turned and looked down towards my left, down College Crescent, and I saw a headlight coming towards us, and then the front part up to the fuel tank of the bike. This bike has veered to its left, as it trying to go around the front of Bronwen's car, then came straight back in again. The bike impacted with the car between the front and back doors, the bike has swung back hitting the rear portion of the truck at the same time the truck (sic) moving slightly to the right. When the impact happened, there was the bright light of the headlight and glass shattering and covering everyone. I heard a bang over the roof and thought one of the people on the bike had gone over the car. The next thing I know we had rolled forward a couple of metres, I looked at Kate and saw she was bleeding from cuts to her head. I turned around and looked out the back window and saw the bike on fire. I got out the car and went over to the people from the bike. The bike was lying in the intersection, and the other guy was on the right hand side of the road, near the median strip, near the petrol station." 18 In cross-examination by Mr Barrett, Mr Ostle said that he was paying attention to Ms Ingham's driving from his position in the back seat. He observed the passage of 2 cars up College Crescent and through the intersection while Ms Ingham waited. That observation was from a position where he could see "a reasonable distance down College Crescent, as far as I could see there was nothing coming after the two cars". He agreed with Mr Barrett, as I understand his answer, that where Ms Ingham commenced to turn was level with the lanes in Pretoria Parade into which she intended to move. 19 Mr Rojas was the front seat passenger in Ms Ingham's vehicle. He also made a statement to police on 31 December 1997, Ex 1D-10. He said: "We were travelling along the Pacific Highway and were heading to a party in Hornsby. Bronwen moved into the right turn lane so as to turn right from the Pacific Highway into Pretoria Avenue (sic). As we approached the intersection which is also with College Crescent, I saw the lights facing us were green. I remember Bronwen slowing down, to a crawl. I can't recollect if she brought the car to a full stop or not. I don't remember if there were any cars in front of us waiting to turn, or if any cars passed us coming in the opposite direction. Bronwen entered the intersection. I could not see anything coming towards us and as Bronwen started to turn right into Pretoria Avenue, the traffic lights changed from green to amber. There was no arrow at all only the green circle. As we were about the middle of the two traffic lanes we were turning across, I saw a single headlight crest the hill. I turned briefly away and on looking back, saw a bright light, then felt and heard the impact." 20 Ms Ingham and the occupants of her vehicle were all quite impressive witnesses, whose honesty and reliability I do not doubt. It can, I think, be concluded that she entered the intersection cautiously; that she proceeded to a position about level with the west-bound lanes of Pretoria Parade, from where she had some view down College Crescent and that after looking, at least once, and waiting for 2 other cars travelling north to pass, proceeded at a slow, steady pace to make a right turn. For whatever reason, she simply failed to see Mr Caldwell's motorcycle. This failure, at least, constituted a breach of duty of care on her part, as Mr Caldwell's cycle was obviously there to be seen. College Crescent as it proceeded south from the intersection was straight for at least 200 metres. THE POLICE INVESTIGATION: 21 Sergeant Peter Jenkins of the Crash Investigation Unit, arrived at the scene of the accident at 12.54 am on 12 October 1997. In his statement Ex. E, he described the intersection relevantly to this case: "Southbound traffic on the Pacific Highway can continue to travel on the Highway by the provision of two left lanes. Traffic wishing to continue into College Crescent is provided with one through lane, with a right turn lane provided for Pretoria Avenue (sic) bound traffic. The through lanes are separated from these other lanes by a raised concrete traffic island. North bound traffic in College Crescent are provided with two traffic lanes, commencing south of the intersection. A constant uphill gradient is evident for north bound traffic in College Crescent which becomes less at the intersection, which is virtually level. The area is well lit by mercury vapour lighting which was operating at the time of my arrival. Visibility was excellent. The intersection is controlled by traffic control light signals, which were turned off at the time of my arrival, the intersection being worked by Police Officers. A directional arrow is provided with these traffic signals to assist vehicles wishing to turn right from the Pacific Highway into Pretoria Avenue (sic). Three general phasings operate regarding right turn traffic. Firstly the lights can change to a green circle and green arrow. Secondly, a green circle only and thirdly a green circle with red arrow, which after a set time fades to a green circle only." 22 Sergeant Jenkins observed Ms Ingham's vehicle standing in Pretoria Parade with extensive damage to the near side, commencing at the rear of the front wheel and extending to the front of the rear wheel arch. Nearby, he observed Mr Caldwell's motorcycle also extensively damaged and partly burned out. 23 He located a single tyre burn mark commencing "adjacent lane 2 of College Crescent within the pedestrian crossing and continuing into the intersection". The mark was 8.1m in length and straight. It was consistent with being made by the rear wheel of a motorcycle. He established the point of impact as about 1 metre past the northern extremity of the burn mark. Photographs of the scene were taken in his presence. He said that the speed limit applicable to the intersection and its approaches was 60 KPH. THE TRAFFIC ENGINEERS: 24 Four experienced and highly qualified traffic engineers gave evidence in the case. Their evidence was directed to two issues, namely, whether the phasing or sequencing of the traffic lights indicated a breach by RTA of its duty of care to road users, and whether Mr Caldwell failed to take reasonable care for his own safety. Each of the engineers provided reports and gave oral evidence. 25 Mr Roger Stuart-Smith was qualified in Mr Caldwell's case and he provided six reports, some in response to reports by other engineers. The first dated 22 November 1999 was confined to the circumstances of the accident as between Mr Caldwell and Ms Ingham. He summarised his conclusions: "1. Ms Ingham should have been aware that Mr Caldwell was approaching and delayed her turn until after he passed. 2. Analyses based on the material available indicate that Mr Caldwell was likely to have been travelling at approximately 60km/h as he approached the intersection. There is no material available to indicate that Mr Caldwell was travelling faster than this speed. 3. Once Ms Ingham commenced to move, Mr Caldwell would not have had enough time to swerve or brake to avoid a collision. 4. The lights facing Mr Caldwell most likely changed to yellow when he was too close to the intersection to be able to stop at the stop line. Consequently, it was appropriate for him to enter the intersection. 5. The actions of Ms Ingham, combined with the poor road geometry at the site, can be considered to have been the contributing factors for the crash. There is no material available to indicate that Mr Caldwell's actions contributed to the collision." 26 Mr Stuart-Smith estimated Ms Ingham's speed at point of impact as around 18kmh, accepting her statement that she commenced to turn "right down" into the intersection and then moved right "just taking my time". 27 As to the motorcycle's speed he said it could be calculated either by estimates of vehicle deformation or by principles of momentum. Using what he conceded were only estimated measurements of deformation of the motorcycle and the Nissan, he concluded that 47kph should be regarded as an appropriate impact speed. Using the "momentum method", based on the masses of the 2 vehicles and their post impact velocities in the direction of travel of the motorcycle, Mr Stuart-Smith calculated the motorcycle's impact speed at approximately 40kp/h. 28 From his calculations, Mr Stuart-Smith deduced an approach speed for the motorcycle as follows: "In the case of Mr Caldwell's approach, it is apparent that he used his rear brake, which locked the rear wheel, but the extent to which the front brake was used is not known. Consequently his deceleration during braking was likely to have been between 0.3g and 0.85g. A typical deceleration of around 0.6 g, assuming rear wheel lock and moderately effective from brake usage, can be assumed for a typical deceleration. Based on Newtonian physics, using an impact speed of 47km/h and a deceleration of 0.6 g over 8.1m, a pre-skid approach speed of approximately 58 km/h can be calculated. Using decelerations higher and lower than 0.6 g give rise to approach speeds above and below 58 km/h. Whilst there are a number of unknowns, using the best data available, an approach speed of approximately 60 km/h could be considered most likely, however, other speeds in the vicinity of this speed could also be possible." 29 Under the heading "Intervisibility", Mr Stuart-Smith discussed other aspects of the collision as follows: "Southbound Approach As can be seen in Photographs 1 to 4, southbound visibility (Ms Ingham's direction) is restricted at the intersection. No view of the approaching motorcycle would have been available from the stop line. However, from a turning position within the intersection, Ms Ingham should have been able to see the approaching motorcycle's headlight as it came up the hill. Using a moderate acceleration of 0.25g Ms Ingham would have taken around 2.0 seconds to reach the POI from her turning position. If Mr Caldwell was travelling at 60 km/h, he would have been approximately 33m before the POI when Ms Ingham commenced to turn. This position was approximately 21m before his stop line and is 4m closer than the end of the concrete splitter island shown in photographs 3 and 4. At a higher speed (there is no evidence of a higher approach speed) Mr Caldwell would not have been much beyond the splitter island. The poor road geometry at the site, where College Crescent rises at a steep grade to a crest at the intersection, requires right turning drivers to specifically place their vehicles in positions within the intersection where oncoming traffic could be seen. If Ms Ingham had been appropriately placed and looked adequately before moving, she would have seen Mr Caldwell approaching. (Mr Caldwell's headlight was reported to have been on). Her inability to see the motorcycle must be considered the key contributing factor to the crash. Northbound Approach. From Mr Caldwell's direction, he would have had a view of the top of the Nissan at its turning point as he approached the end of the concrete splitter island. Whether or not a view was possible before this point cannot be determined, since the length of time Ms Ingham was stationary is not known. Nonetheless, with reports that two vehicles in front of Mr Caldwell passed through the intersection, it would have been reasonable for him to assume that southbound vehicles (and Ms Ingham) were giving way and would also do so for him. At the point at which Ms Ingham commenced to turn, Mr Caldwell had approximately 2 seconds available before the collision. This time would not have been enough for him to avoid a collision by either manoeuvring or braking. It is possible that Mr Caldwell initially attempted to steer around the car before realising that this would not be possible, before he commenced to brake. Mr Caldwell's skid of 8.1m would have taken approximately 0.6 seconds. He therefore would have had around 1.4 seconds available from the time Ms Ingham commenced to turn to the time he commenced braking. At night, a reasonable reaction time could be considered to be around 1.5 seconds. Since Mr Caldwell reacted within this time and possibly attempted to swerve as well, his reaction time must be considered acceptable. Mr Caldwell could not have been expected to have avoided a crash with only a short period of time available to him. Once Ms Ingham commenced to turn, a collision became inevitable." 30 The next report in chronological order was that of Mr Fred Schnerring dated 24 January 2000. He was qualified in Ms Ingham's case. Using methodology based upon damage to the two vehicles, he calculated the impact speed of the motorcycle as between 36 kph and 55kph. From this estimate, he calculated the speed of the motorcycle, in the period prior to impact, as between 54km/h and 68km/h, assuming front and rear wheel braking, and between 50km/h and 65km/h, assuming both front and rear wheel braking. 31 Mr Schnerring thought it likely that Ms Ingham's acceleration was gentle to moderate and that she probably accelerated to about 0.15g. In light of these calculations or estimations, and an assumption as to where Ms Ingham commenced her turn, which, I think, is slightly to the north of the more probable position and, in light of the evidence of Ms Ingham and Mr Rojas, Mr Schnerring proffered these opinions: "Time to Impact The time taken by the 4WD to travel 7.5 metres at a rate of acceleration of about 0.15 is about 3.2 seconds. The likely crash scenario was therefore that the driver of the 4WD entered the intersection on a green signal and waited for two cars to pass before she commenced her turn. The signals turned to yellow as she commenced her turn. After having travelled 7.5 metres in about 3.2 second, she was struck by the Harley Davidson. Position of Harley Davidson The time taken to brake for 8.1 metres (the length of the motorcycle's skid marks) was about 0.5 seconds. The motorcycle therefore travelled for about 2.7 seconds after the signals changed to yellow (and the driver of the 4WD commenced her turn) to when the motorcycle started skidding. The pre-crash speed of the Harley Davidson was considered to have been between about 46 and 68 km/h depending on the rider's pre-crash braking performance. It was considered that the motorcycle's speed was towards the upper end of this range. If the motorcycle was travelling at 50km/h, then the motorcycle was therefore about 46 metres from the point of impact. At 60km/h the motorcycle would have been about 53 metres from the point of impact, and at 65 km/h the motorcycle would have been about 57 metres from the point of impact. Signal Timing Traffic signal yellow times are typically 4 seconds in urban area, and the "all red" time (the time all the signals are red between successive green signals) is typically 2 seconds. These were the times Mr Stuart-Smith observed when he timed the signals at the crash site. I have no reason to doubt the accuracy of Mr Stuart-Smith's times. If the crash occurred about 3.2 seconds after the signals turned yellow, then the crash occurred towards end of yellow phase and therefore there was probably sufficient time and distance available for the motorcycle to stop on the yellow signal before entering the intersection. The typical traffic engineering design value for drivers and riders in urban areas is 1.5 seconds. For a motorcycle rider approaching traffic signals, 1.5 second is considered an appropriate and adequate time to perceive and react to the signals changing to yellow. The rider therefore had about 1.7 seconds of travel time available in which to stop, or about 23 metres at 50km/h or about 31 metres at 65 km/h. Assuming braking with both brakes and a 10 percent upgrade, the rider of the Harley Davidson should have been able to achieve at least 0.8 g braking with loss (sic) of control. Braking to a stop at 0.8 g requires about 12 metres from 50km/h and about 21 metres from 65 km/h. Therefore the motorcycle rider was considered to have had sufficient time and distance to brake to a stop after the signals changed to yellow before entering the intersection." 32 Mr Schnerring proceeded to comment upon the phasing of the traffic lights at the intersection. He said that to safely cater for a vehicle turning right into Pretoria Parade from the Pacific Highway, 105 metre sight would have allowed the driver of the 4WD adequate time to observe the approaching motorcycle before making her turn. He opined that the design of the signal phasing was inadequate and pointed out, obviously enough, "had a fully controlled right turn phase been provided, then the crash would not have occurred (assuming compliance with red and green turn arrows)". 33 Dealing with Mr Stuart-Smith's report of 22 November 1999, Mr Schnerring said that generally he agreed with it. He highlighted some disagreement, however, in the following paragraphs: "Mr Stuart-Smith said that Ms Ingham accelerated over about 5 metres to the point of impact. However, a perusal of my Figure 2 and his Figure 2 suggests the 4WD probably travelled 7.5 metres to the point of impact (about one and a half car lengths versus one car length). Accelerating over 7.5 metres at 0.15g gives time of 3.2 second to impact versus Mr Stewart-Smith's time of about 2 seconds to impact. As discussed above the distance travelled by the 4WD is sensitive to where the 4WD started turning from. Using a distance of one car length (about five metres) and an acceleration of about 0.15g, gives a time to impact of about 2.6 seconds. At 60km/h, this places the Harley Davidson about 43 metres from the point of impact. At 60km/h, up a ten percent grade, the stopping distance of the Harley Davison was considered to be about 43 metres, sufficient to (just) stop in time to avoid a collision. Conservation of Momentum Calculations Mr Stuart-Smith used Conservation of Momentum calculations as one method of estimating the speed of the motorcycle at impact. I do not agree that this method is appropriate in motorcycle crashes involving 4WDs because of the large difference in the masses of the two vehicles. In these situations, the speed estimates for the lighter vehicle are often very sensitive to the post-impact movement of the vehicles and to the pre-crash directions of travel, making it necessary to know precisely the amount of post-impact movement and the pre-crash directions of travel. From the material reviewed, precise measurements of post-impact movements and pre-crash directions of travel do not appear to have been made, so that the use of conservation of momentum calculations in this crash appears inappropriate. Motorcycle Braking Mr Stuart-Smith estimated that the motorcycle probably braked at 0.6g. I consider this value to be somewhat low, and that a more likely value was probably about 0.7g, possibly more, although over a distance of 8.1 metres, this difference in deceleration has little effect on the pre-braking speed." 34 In summary, Mr Schnerring concluded that Mr Caldwell was probably driving at an excessive speed and had sufficient opportunity, when faced with an amber light, to stop before entering the intersection. He also concluded that the design of the phasing of the traffic lights, in so far as it permitted filtered right turns into Pretoria Parade, was inappropriate. 35 Illustrating the sensitivity of outcomes to small variations in assumptions and highlighting, in my opinion, the difficulty of determining which, if any, of the conflicting expert opinions should be accepted, are the final two paragraphs of Mr Schnerring's report: "Mr Stuart-Smith concluded that the collision occurred about two second after the signals changed to yellow, leaving the motorcycle rider about 0.5 seconds in which to take evasive action (assuming a perception and reaction of time of 1.5 seconds). If the 4WD accelerated at 0.25g and travelled for only five metres before impact occurred, then I do not disagree with Mr Stuart-Smith's conclusions. However, I consider that the 4WD accelerated more slowly, probably at 0.15g, in which case I consider that the crash probably occurred between 0.6 to 1.2 seconds further, or later into the yellow time (2.6 to 3.2 seconds after the signals changed to yellow), in which case the motorcycle rider probably had sufficient time and distance available in which to stop to avoid a collision, or to stop before entering the intersection." 36 Mr Stuart-Smith in his second report dated 7 March 2000, considered Mr Schnerring's report. Broadly, he adhered to his previous views and took issue with Mr Schnerring's opinion that Mr Caldwell had time to stop before entering the intersection. He included this paragraph: "The distances calculated in the (Schnerring) Report for distances required to stop are based on braking of 0.8g which, the report stated, can be achieved with (presumably without) loss of control. Whilst this heavy deceleration might be possible, it would be considered unsafe for a rider (with a pillion passenger) to attempt such heavy braking immediately when the traffic lights turned yellow. The chance of an inadvertent problem occurring, considering the lack of occupant protection and the need for both rider and passenger to keep the bike upright, must be considered greater than the possible consequences of travelling through a yellow light (well before its termination). It should be borne in mind that using the (Schnerring) figure of 3.2 seconds, Mr Caldwell could have comfortably passed through the intersection well before the following red light commenced. Also, Traffic Signal timings allow for situations even less straightforward than this case in providing a period of "all-red" after the yellow in case any latecomers are still in the intersection." 37 Mr Stuart-Smith agreed with Mr Schnerring's comments regarding the phasing of the traffic lights. As to that he said: "The (Schnerring) Report considered that the design of the signal phasing was inadequate at the crash site. The findings in our earlier report where it was noted that southbound visibility at the intersection was restricted and that poor road geometry was a factor in the collision support this conclusion. From 25m before the southbound Stop Line (see Photograph 1 of our earlier report), sight distance is limited to about 60m (about 10m beyond the far side of the intersection). From the Stop Line, sight distance is limited to around 40 to 50m (see Photograph 2 of our earlier report), whereas from well within the intersection sight distance is not limited. In this situation with limited sight distance from the Stop Line, the signal phasing at the intersection required Ms Ingham to make a right turn as a "filtered" movement, meaning that she faced a green circle light allowing opposing traffic to flow through the intersection and was required to wait for a gap before turning (she was not successful in finding an adequate gap). Although a phase of the traffic signals at the site allowed for a right turn with a green arrow (Phase D), a filter movement was allowed in Phase C, which was the phase operating at the time of the crash. The guide to Traffic Engineering Practice, Part 7, Traffic Signals, Austroads, 1993 indicates that a right turn red arrow could have been expected to prevent "filter" turns in the southbound direction. Whilst a similar sight distance problem exists for northbound traffic, right turns are banned in this direction. Section 6.4 of the Guide, Control of Conflicts includes the following: "(a) The right-turn red arrow should be used to prevent "filter" turns where: (i) The sight distance to oncoming vehicles is inadequate (100m at 50km/h)" The RTA Traffic Signal Practice – Design, 1992 also states that a right turn filter movement should not be permitted where sight distance is insufficient for the right turn vehicles to filter with safety. Clearly, permanent red arrows could have been expected to control the right turn movement from southbound on the Pacific Highway to Pretoria Parade during phases other than Phase D. Should Ms Ingham have faced a red arrow it would have been unlikely that she would have attempted a right turn in front of Mr Caldwell 38 Mr Schnerring produced a supplementary report dated 17 February 2000, which explained that the traffic lights at an intersection may fully regulate right hand turns by permitting them only on a green arrow; may permit filtered turns through oncoming traffic at all times; or permit filtered turns at some times and regulate turns at others. He said that the body known as Austroads is the national association of road transport and traffic authorities in Australia and that it is governed by a council representing the Commonwealth, the States, the Territories etc. 39 The next report in chronological order was that dated 7 September 2000 of Mr Schnerring. It did little other than join issue once again with Mr Stuart-Smith. He maintained his view that Mr Caldwell could, and should, have stopped before entering the intersection. After considering factors such as the position of the motor cycle when the lights changed to amber; its estimated speed; its braking distance; and the distance travelled by Ms Ingham after commencing to turn, Mr Schnerring, to my mind, reinforced the difficulties inherent in regarding the expert reports as expressing opinions which may be relied on, when he said: "From the above, I therefore disagree with Mr Stuart-Smith's conclusion that it would have been necessary for a prudent rider to still have entered the intersection if the accident occurred 3.2 seconds after the lights changed to yellow. It should also be noted that the time to impact of 2.0 seconds or 3.2 seconds depends on the distance travelled by the 4WD and its degree of acceleration. Without an on-site reconstruction using an exemplar 4WD (or the 4WD involved in the crash), no certainty can be attributed as to whether 2.0 seconds used by Mr Stuart-Smith should be regarded as having been more likely. I also disagree that using either time (2.0 seconds or 3.2 seconds), that it would not have been possible for the motorcycle rider to stop before the stop line after the lights turned yellow." 40 A further report by Mr Schnerring dated 6 September 2001 did not, I think, add anything of significance to what he had previously said. 41 The next expert report was that produced by Mr Stuart-Smith on 29 July 2002. It reiterated his previously expressed view that the lights at the intersection should have prohibited right hand filter turns from the highway into Pretoria Parade. He commented that although two design publications the 1992 RTA Signal Practice and the 1993 Guide to Traffic Engineering Practice Part 7 Signals, would specifically prohibit right turn filter movements when sight distance was as limited as it was at this intersection, good engineering practice by 1986, in his opinion, would have anticipated and met the later guidelines. 42 Mr Stuart Smith's next report of 21 October 2002 restated previous opinions. Focussing on whether Mr Caldwell could, or should, have stopped before entering the intersection, he said: "It is difficult to understand why the issue of whether Mr Caldwell had sufficient time to stop before reaching the intersection is still being examined. There is overwhelming evidence and material available to support a view that there was insufficient yellow time available for Mr Caldwell to stop, whichever acceleration and distance is used to calculate Ms Ingham's movement. The evidence supports the likelihood that Mr Caldwell reacted to stop as soon as he saw Ms Ingham commence to move. It is likely that this was just before the change to yellow, which was around 2 seconds before impact. The reports by Mr Schnerring provided no realistic support for the proposed time for Ms Ingham's movement. The suggestion in the latest report by Mr Schnerring, in relation to stopping when faced with a yellow light, is an unusual suggestion from a road safety perspective. Notwithstanding the views of the reports by Mr Schnerring in relation to Mr Caldwell's possible actions, there is no substantial disagreement in relation to traffic signals design, the actions of Ms Ingham, or the speed of the motorcycle. On the basis of the material available, there is overwhelming evidence that Mr Caldwell had insufficient time to stop before reaching the stop line, once the lights changed to yellow. Consequently, there is no material available to suggest that the actions of Mr Caldwell were contributing factors to the crash." 43 On 14 September 2003, Mr Bruce Fishburn, qualified on behalf of RTA, commenced his contributions to the controversy. He confirmed that the original traffic signal layout was placed in service on 18 December 1975 and that an amended system was placed in service in July 1994. This revision gave traffic the option of making filter right turns into Pretoria Parade or waiting for the right turn phase to be activated with the display of a right-turn green arrow. 44 Mr Fishburn said that the amber phase at the signals lasted for 4 seconds under all operating conditions and that there was an all-red period of two seconds between each phase to allow the intersection to clear. 45 In relation to sight distances for drivers turning right into Pretoria Parade, Mr Fishburn said: " · Non-restricted sight distance (driver eye height 1.15m) is available from a line located 5m to the north of the stop line at College Crescent. This line is about 13 metres to the south of detector 8. This means that drivers who are waiting to make a right hand turn can either stay on the detector (and so activate the turning phase) or make a "filtered" turn by moving into the intersection. · A driver of a 4WD (like Ingham's) is able to enjoy almost unrestricted SD because of the increased eye height from much further to the north." 46 Mr Fishburn included in his report an extract from the RTA Traffic Accident database for the 5 years from 13 October 1992 to 12 October 1997. He interpreted the extract as showing: "(i) During this period 13 crashes occurred where a southbound vehicle travelling on the Pacific Highway collided with a northbound vehicle travelling in College Crescent. (ii) The crash involving Caldwell and Ingham is listed as accident number 981350270 . (iii) A total of six people have been injured in these crashes over the five year period selected. The Caldwell/Ingham accident contributed half of this number. There have been no fatalities. (iv) Four crashes occurred at night when the road was wet and the street lights were on. (v) Four crashes occurred on a dry road at night when the street lights were on. (vi) Of the thirteen right hand crashes, all but one occurred after 1994 (when the signal phasing was adjusted). (vii) The total number of crashes at the intersection is 37. Some of these are the result of illegal manoeuvres such as making U-turns and vehicles apparently running the red light." 47 Reviewing previous reports by Mr Stuart-Smith and Mr Schnerring, Mr Fishburn took issue with Mr Stuart-Smith's opinion as to the distance travelled by Ms Ingham after commencing to turn, assessing a travel time of around 3.5 to 4.0 seconds, and a distance of about 9 metres. As a consequence, he joined Mr Schnerring in disputing Mr Stuart-Smith's opinion that Mr Caldwell had insufficient time to avoid the collision by braking or manoeuvring. 48 Dealing with Mr Schnerring's report of 24 January 2000, Mr Fishburn said: "Under clause 7 of his report, Schnerring considers "the grade (on College Crescent) restricted an approaching driver's or rider's sight distance to traffic on the intersection to about 60 metres. Road users on the highway turning right have a similarly restricted view of traffic approaching from College Crescent". In my opinion this is an over-simplification of the situation. My measurements have shown that drivers of right turning vehicles entering Pretoria Parade have a good sight distance to northbound College Crescent traffic, once they pass a point that is about 12m from the southern end of detector #8. Northbound traffic in College Crescent has a similarly good view of traffic wanting to turn into Pretoria Parade. I consider that Schnerring's estimates of impact are more reliable than those used by Stuart-Smith. I particularly support the allowance made for the impact angle. I agree with the conclusions of Schnerring "There was probably sufficient time and distance available for the motor cycle to stop on the yellow signal". This is particularly so because the grade (12.5%) would assist braking. I do not accept Schnerring's view about the restricted sight distance. It is my opinion that the method chosen for operating the right hand turn was a clever and most appropriate solution. It offered a filter turn that can be made with a sight distance that greatly exceeded the suggested SSD by the simple expedient of entering the intersection. Otherwise drivers could wait at the stop line for turning traffic and thus call up a turning phase ("D phase"). My review of the available data supports the conclusion by Schnerring that "the motorcycle was travelling at a speed between 46 and 68 km/h with the most likely speed being at the upper end of this range". I also support his statement that the "motorcycle rider was considered to be able to stop in about 43 metres". This support takes into account the fact that I determined the grade in College Crescent to be 12.5% (not 10.00% as stated). I cannot accept Schnerring's view about the restricted sight distance. I cannot support Schnerring's view that "sight distance between traffic north on College Crescent and traffic turning into Pretoria Parade can be considered sub-standard". I agree that sight distance is restricted from the Stop line at the end of the right turn bay to a point about 12m to the south of detector #8. This is about the area of the median in Pretoria Parade. Sight distance is fine from that point onwards. Accordingly, the layout that is in place is a very good solution as it incorporated both a filtered and controlled turn (because both are possible). The guidance about sight distance given by the manuals is meant to cover situations where the only distance available is the figure cited. This is not the case here. I note (and agree with) Schnerring's comment "the crash would not have occurred assuming compliance with the traffic signals"." 49 As to whether the right turn into Pretoria Parade should be regulated by full time turning arrows, Mr Fishburn said: "The implication is that with such a full time control the crash would have been avoided. However, such a conclusion depends on observance of the traffic signals at all time by all drivers (which demonstrably does not occur). The other issue is that all road design involves a trade-off between safety and congestion. The art of road design is to balance these factors and to monitor the outcomes. The "crash record" does show that thirteen reported crashes have occurred over five years prior to the event. Three people were injured (none fatally) in the earlier crashes during this period. The crash under review here doubles the number of injuries. The operational performance would also be monitored through the Hornsby Traffic Committee. It is my opinion that usage of a permanent right turn phase would introduce unwarranted delays and lead to driver frustration and disobedience." 50 Later in his report, Mr Fishburn commented on traffic signal guidelines and the desirability of allowing filter turns: "I am a little disturbed by the assertions made by others that because elements of the traffic signal design did not comply with various NAASRA (now Austroads) publications, it was "deficient". The documents cited are all guidelines that serve a largely administrative purpose. They define the numerical values for various parameters that can then be used without further reference to more senior officers of the various road authorities in Australia and New Zealand. The RTA has its own set of guidelines titled "RTA Traffic Signal Practice – 1992". The use of a filtered right turn is quite widespread. It does mean that turning traffic can clear the intersection as opportunities arise. The major issue is whether there is sufficient sight distance available to detect gaps in oncoming traffic and to make a judgement as to whether the size of the gap is sufficient to turn. At this intersection there is sufficient sight distance available and the offset provides good information about the space available to make a turn. It is my judgment that the pressure on traffic attempting to make a filtered right turn during peak hours probably led to the increase in the number of crashes that caused this site to be listed in the top 100 crash sites during 1992/93. 51 His concluding paragraph read: "Consequently, I consider the design and operation of the traffic signals at this site to be a very clever solution. For drivers who are a bit tentative there is the option to wait for the turning arrow to be activated. This is likely to occur during peak demand associated with the nearby school. At other times (especially in off-peak period) there is plenty of sight distance available by following normal procedures that are followed at sites where no turning phase is provided." 52 In a supplementary report dated 2 October 2003, Mr Fishburn expanded upon what he said about sight distances in his earlier report: "The point that I was making in my report is that, inherent in nominating a sight distance figure, is the idea that any restriction would apply across all points on the intersection (such as would occur if the intersection was "hidden" because of the horizontal alignment). It cannot be used at locations where sight distance is restricted at certain spots (such as occurs here). At this intersection, sight distance is restricted at the stop line of the turning bay that stores southbound highway traffic waiting to turn right into Pretoria Parade. However, when a driver enters into the intersection then the sight distance opens up quickly and the distance specified by Austroads is met and then easily exceeded." 53 Both Mr Schnerring and Mr Stuart-Smith replied to Mr Fishburn. In a report dated 7 October 2003, Mr Schnerring included these paragraphs: "In the second-last paragraph on page 15, Mr Fishburn stated that: "Drivers of right turning vehicles have a choice. They can either stay on the detectors in the right turn bay and so call up a right turn phase or they can move forward in the intersection where they can make a filtered turn". However, drivers do not generally remain stationary at the stop line if there is no red arrow displayed. Based on my specialised knowledge and experience of traffic engineering, drivers move forward into the intersection whilst waiting for a gap in the oncoming traffic. At the subject intersection, a driver moving forward by the usual distance would not have sufficient sight distance ahead. To obtain the necessary sight distance, drivers would need to move forward to the pedestrian crossing across College Crescent. This is a highly unusual position and an unusually long distance beyond the stop line on the Pacific Highway and creates an unusual and more complex right turn manoeuvre. Furthermore, no specific signs or markings were observed to inform and warn drivers "choosing" to make a filter turn that they needed to position themselves at the far end of the intersection before attempting to turn. Indeed, I am uncertain as to how such information could be unambiguously conveyed to drivers by signs and markings. Therefore, a safer alternative is to fully control all right hand turns and eliminate problems with drivers not positioning themselves at the far end of the intersection before attempting to turn." 54 Later Mr Schnerring commented: "It should be noted that Austroads does not indicate how the 100 metres it specified for speed of 50 km/h was determined. A vehicle travelling at 50km/h travels 100 metres in 7.2 seconds. Based on my specialised knowledge of traffic engineering, road safety engineering and accident investigation and research, a 7.2 second gap to oncoming traffic suggests an observation and perception and reaction time of about 3 seconds and a turning time of about 4 seconds. On this basis, a sight distance of 120 metres would be required for a speed limit of 60 km/h. Based on my observations of the site, I consider that the sight distance provided from about the middle of the intersection is less than 120 metres and is inadequate." 55 As to the remarks made by Mr Fishburn regarding the force of publications including those of Austroads, Mr Schnerring said: "In the first paragraph, Mr Fishburn states that: "I am a little disturbed by the assertions made by others that because elements of traffic signal design did not comply with various NAASRA (now Austroads) publications, it was "deficient". The documents cited are all guidelines that serve a largely administrative purpose". I do not understand Mr Fishburn's comments in this regard. I am familiar with these documents. They are technical documents. Administrative matters are not evidenced in their contents. These documents provide guidance for practitioners about appropriate practices in designing and providing a safe road environment. This includes intersection design and traffic signal design and operation. In any event, allowing for some judicious and appropriately judged "juggling and fudging" of the 100 metres sight distance requirement for a traffic speed of 50 km/h, such as considering 95 metres adequate for a traffic speed of 60km/h, it is my opinion based on my observations of the site and my specialised knowledge and experience in traffic engineering, accident investigation and research and road safety auditing, that the sight distance is well below even such a "juggled and fudged" sight distance, unless a driver proceeds to about the pedestrian crossing across College Crescent. Such a position in the intersection for a right turn is not normal driving practice." 56 This report of Mr Schnerring also directed itself to the accident data for the intersection leading up to October 1997. He concluded from such data that, in the period 1991 to 1997, there were 35 recorded accidents between vehicles travelling north in College Crescent and proceeding through the intersection, and vehicles making a right turn into Pretoria Parade. As to the consequences of this, he said: "Based on my specialised knowledge and experience in traffic engineering, accident investigation and research, road safety auditing and road safety engineering, I consider that implementing a full-controlled right turn phase would have been an appropriate and suitable treatment in response to the accident history at the intersection." 57 Mr Stuart-Smith in his response to Mr Fishburn included these paragraph: "The suggestion by Mr Fishburn that a filtered turn involves a significant sight distance (being available) is misleading. It is agreed that, if a driver travels well into the intersection (such as onto the pedestrian crossing at College Street, as suggested by Mr Fishburn), sight distance is adequate. However, for a conventional right turn path, sight distance is not adequate before the turn is commenced. Traffic engineering practice relies on drivers following conventional and typical movements. Where these actions are unsafe or inappropriate, control of the movements should be considered. Should the designers have expected right turning traffic to travel well into the intersection before turning, turn lines indicating the intended path would have been provided. For Ms Ingham's movement, there were no turn lines to force drivers to enter a long way into the intersection before turning. There was no right turn ban to prevent filter turns during phase C. In other words the signal design allowed drivers to follow typical movement paths, which did not have sufficient sight distance. The fact that drivers can (but may not) travel a long way into the intersection before turning is not an adequate traffic engineering response to the problem of poor sight distance." 58 A fourth traffic engineer, Mr Grant Johnston, qualified for RTA, submitted a report and gave oral evidence. Mr Johnston was also responsible for a computer visualisation report, exhibit 2D-1, portraying scenarios of what might have occurred in the accident, according to where Ms Ingham commenced her turn. Although the report and computer visualisation were interesting, they were not, in my view, of much assistance in resolving the factual issues which need to be resolved. 59 Mr Stuart-Smith, in the course of cross-examination by Mr Barrett, explained his view in relation to sight distances at intersections. There was the following exchange. "Q. That being the case, is it not logical that the place to measure sight distance from is where the vehicles would likely be turning? A. Well, this is a matter of interpretation. I am not familiar with the theoretical calculation for the sight distance that's given in the AustRoads, so I don't know whether that was determined from the stop line, but I would think, as a matter of principle, it ought to be taken from either the stop line or a position just beyond the stop line, which is the commencement of a normal right-turn position, and they would be the logical positions that I would think the sight distance should be taken from. Q. Well, the Motor Vehicle Drivers' Handbook requires a motorist doing a right-hand turn at an uncontrolled intersection to enter into the intersection to a place where a safe sight distance can be discerned? A. Yes, of course. Q. And in any given intersection that may not be the same place as any other intersection? A. Yes. Q. In this intersection the safe place to do that is well down into the intersection? A. Yes. Q. At that point is the very point where it is desirable that there be adequate sight distance? A. Well, I mean, I certainly wouldn't disagree with that, but it would be my view that it's necessary to have adequate sight distance before reaching that point. There are a number of reasons why. Q. What's the first reason? A. Well, let me - it is really encapsulated in one reason, and the reason is basically that a driver making a right turn, entering an intersection, makes the decision to turn right actually before they turn the wheel, and not everybody comes to a stop, and, in the process of moving beyond the stop line to a safe position - and this comes to the crux of the whole problem - well into the intersection it is quite feasible that a driver can get the impression that there are no approaching vehicles, because of the sight distance problem, and consequently be less inclined to look. When they get to that position well into the intersection, they have maybe already made up their minds, so it is a much - they are in a situation where they are programmed already to believe that there may be no vehicles coming. So it is not - in my view, it is not a satisfactory engineering response to measure a required sight distance from whatever position it is necessary for a car to be able to go to, to achieve it. So it is sort of going around it a bit the wrong way. In my view the sight distance should be available from any time that the vehicle is able to turn right within the intersection, and it doesn't conflict with the requirements in the traffic handbook, because, I mean, that's obviously - that has to cater for all situations, including situations where there is not adequate sight distance. And it doesn't matter whether the roads, the system, the environment we provide for drivers is adequate or not adequate; we still would like drivers to do the safest thing and, consequently, a requirement like that in the handbook should be there, regardless as to where sight distance should be measured from. Q. I understand your proposition is that there should be adequate sight distance for each place at which a driver might turn right, regardless of whether it is the best place in the intersection to turn right? A. Well, that's probably nearly right. I think it should apply at a typical turning path from the entry point to the exit path. So, in this case, I can - I will give you an example. If we look at the RTA plan that's attached as appendix 1 to my report of 22 November 1999 - that's appendix 1 - there should be a fold-out plan. I am sorry, they are smaller copies. It would be my view that a reasonable position to apply the sight distance to would be approximately where the number 8 is. There is a rectangle that can be seen entering the intersection from the top left, coming down, which is the southbound approach, the direction of travel of Ms Ingham, and that rectangle with an 8 and 9 in it is in fact an underground loop detector, which is not visible to motorists, but from somewhere around about where the 8 is, is where a typical right-turning path would then enter Pretoria Parade from, apart from the requirement to enter further down to achieve the sight distance, but that would be where one would expect a vehicle to turn right from if they weren't concerned about sight distance, and I would think that would be a logical and sensible place, from an engineering point of view, to apply it. Q. Would this be fair comment: it would be very nice if the Austroads standard in 1993 was that clear as to what should be the situation, but in fact you cannot say that that is, in truth, what the standard is saying? A. The standard does not specify where, that's correct. That aspect of your question is correct. 60 Cross examined by Mr Barrett regarding traffic signal guidelines and, in particular, the Austroads guidelines of 1993, there was this exchange: Q. Can I direct your attention to the extract, in particular clause 6.4.1? A. Yes. Q. Can I suggest to you that the correct application of the guide in terms of that clause is to look at the exampled situations, and if you then have a situation that falls within one of those exampled situations that is then necessary to determine whether there is an unsafe turn? A. Yes. Q. In essence, once you've reached the situation of looking at the particular example a judgment then has to be made by the engineer as to whether the practice of a filter turn is unsafe? A. It is a little bit ambiguous how it is actually written there. You are suggesting that the examples given are instances where one looks to see if the example is unsafe. You can also read that sentence to mean that where conditions are unsafe, the arrow needs to be provided, and the examples of these unsafe conditions are the following, so it is possible to read that in those terms. So I agree that it is slightly ambiguous. Q. With practical engineering in the traffic field, sometimes it is necessary to what I might call tweak the situation to get the best out of a particular intersection in terms of safety and capacity? A. Yes. There is always a - they are not always able to be achieved, and there is often a trade-off. Q. In terms of making the trade-off, you look at the guides and you treat them as a guide to good practice, but you don't treat them as necessarily being mandatory? A. It's not quite. In fact, they are guides to good practice, so the starting position is that you use what is specified in the guide as the criteria for a design, and then if there are problems, such as with capacity, you then look at the necessary trade-offs. So you should start with what is required in the design, and then one can look at whether other factors might have to influence overcoming the design, so that way they form the basis of a good design. Q. Ultimately that comes down to making a judgment of what is proper for the situation at hand? A. In that context that I said, of course, yes, which is starting with the design criteria. Q. The guides respectively describe the criteria in terms of adequate for the Austroads Guide and sufficient for the RTA Traffic Signals Guide in relation to sight distance? A. Yes. Q. You don't suggest, do you, that either of guides seeks unrestricted sight distance? A. No. Q. The guides also provide, do they not, for relaxation of the requirement to have a prohibition on filter turns during periods of low capacity? A. Well, they do, but not in the circumstances where it is specified that a right turn ban should be prohibited. Q. What do you base that proposition on in relation to the guides? A. Exactly 6.4.1, which is basic, which says that when the practice of filter turns may be unsafe, as detailed in circumstances such as the sight distance to oncoming vehicles is inadequate. Q. By making that reference you are alluding to what is set out in 6.4.1 to the end of the subparagraph being (a)? A. Correct. Q. (b) indicates that in situations where filter turns are desirable to decrease delay in periods of low traffic flow, it is permissible to extinguish the prohibition on filter turns? A. Well, it puts a "but" in there, and says when they are desirable to decrease delays, et cetera, "but are undesirable during periods of high traffic flows" - so will be undesirable in circumstances during high traffic flows and not necessarily the same as unsafe as detailed in (a). I don't read, and I can't see why if it is deemed to be unsafe and consequently shouldn't be there, that then in certain circumstances we should override it because there are no conditions like you have been putting to me of capacity constraints in periods of low traffic flow. So I don't interpret it that way at all. Q. Isn't the problem we've got with filter turns during periods of high traffic flow that you've got vehicles wishing to turn right through gaps that may be infrequent and small? A. That is mainly a capacity problem. It is also a safety problem. It is a different safety problem to the sight distance aspect. Q. The particular pattern of accident with which we are concerned is vehicles turning right across oncoming traffic? A. Correct. Q. And the concern that is being addressed at the moment in terms of the guide is that pattern of accident. Wouldn't you agree that that pattern of accident is more likely to occur in high capacity periods as compared to low capacity periods? A. Well, I wouldn't know precisely but I wouldn't be surprised if that were the case, but you would expect, basically, more crashes with increased traffic flows. Q. Indeed, but isn't the problem you get with a filter turn when you have got a busy stream of oncoming traffic that it becomes hard for the motorist seeking to make a right-hand turn to judge the adequacy of a gap? A. It is more difficult when there is difficult sight distance. Is that what you mean?" 61 Later in cross examination, Mr Barrett turned to the subject of the variables involved in reaching a conclusion upon the competing opinions of the experts: "Q. The human eye, in terms of what it can discern, is a much more sophisticated apparatus than anything we record on the media you've just described? A. Yes. Q. Now, is this the situation with this accident: that how you explain it is dependent upon the following variables: firstly, the point of impact? A. Yes. Q. And where it's located? A. Yes. Q. Where it's assumed that Ms Ingham commenced her turn? A. Well look, that's a variable but it could be, it's not a requirement to be a variable because - the key - the relevant factor is how long she was identifiable as a hazard. And so in the - like, precisely where - yeah, in terms of visible it certainly is a factor, yes. Q. Well, the place from which she commenced her turn to arrive at the point of impact is fundamental to determining, along with other variables, how long she was a hazard? A. Well, it's the only way we've got of estimating that. So as far as trying to reconstruct it, that's the only - I agree that's a required variable to attempt to reconstruct it as best we can. Q. In terms of determining the time to the point of impact that she was a hazard, another variable is acceleration rate? A. Yeah, even that's - it's more complicated than that. Her acceleration rate, really, her movement, the way she accelerated and moved, yes. Q. From Mr Caldwell's perspective there are a number of variables that affect the analysis of the accident as well. Firstly, the extent to which he applied his brakes? A. Yes. Q. And, in particular, whether that involved both front and back brake or only back brake? A. We are assuming now, when you say for Mr Caldwell, in analysing Mr Caldwell's actions, you mean attempting to determine his speed and position at various times? Q. Yes. A. That's correct, yes. Q. And that's dependent in part on determining his impact speed? A. Yes. Q. And that is dependent in part on an assessment of the crush depth? A. Of the vehicle? Q. Of the damage to the Nissan Patrol? A. It need not be. That's one way of doing it, but there is another way of doing it, which doesn't depend on that which I mentioned earlier. Q. As I understand it, the other way that doesn't involve the crush depth is something that is disputed between you and Mr Schnerring as to its appropriateness? A. I would have to read that, but I don't recall that being the case." 62 In examination in chief, Mr Schnerring told Mr Renshaw, counsel for Ms Ingham, that in the early 1990's he was employed by RTA as a traffic and road safety engineer, responsible for the development of road safety audit programs, accident investigation and prevention guidelines and black spot procedures. He defined a black spot as a location where there is a clustering of accidents. 63 Noting that at the intersection there had been 35 accidents similar to the one now under consideration in a period of about 7 years, he said that RTA's guidelines and procedures indicated that 5 accidents in an urban area, within 3 years, would warrant an investigation. 64 Mr Schnerring was closely cross-examined by Mr Barrett as to the considerations, which, in his experience, affected RTA's response to an intersection identified as "Black Spot". Not surprisingly he revealed that there were budgeting constraints and the solving of problems involved cost benefit analysis. 65 He maintained that the proven method of overcoming a problem with "right turn against" accidents, as the subject accident was described, lay in full, rather than partial control of right hand turns, that is by permitting right hand turns only, on a green arrow. He suggested that full control would not cost more than partial control and conceded only a minor adverse effect on the capacity of the intersection to handle traffic. Safety would always be the overriding consideration. There followed this exchange: "Q. What I will put to you is this, that it was an appropriate traffic engineer's response to the accident history that existed up until 1994 to institute a D phase in circumstances where the institution of a fully controlled right-hand turn would have had adverse consequences to the traffic capacity, and to see whether that change had a sufficient effect before discerning to make a more rigorous treatment. A. Am I to assume that there is some deleterious traffic problem by instituting a fully controlled right turn phase? Q. Yes. A. Right. I will pretend to be the traffic engineer. It might be easier to do it that way. I will assume that there is a serious traffic capacity problem. I therefore institute a partial - I leave the filter in and bring up the D phase at the end to see if that works. I would then be obliged to monitor that very, very closely to see what it is doing. To be honest, the accident history shows that the accident pattern continued. Q. Were you aware that proximate to the installation of the D phase into the phasing system for these traffic lights that the ranking of this intersection in terms of accident numbers, nosedived to 975? A. Well, I know that because Mr Fishburn provided that information. Q. Assuming that to be true, would it be a fair situation from a traffic engineer's point of view to not take any immediate action but to continue to monitor the intersection? A. No. Q. What do you say should have been done? A. Should look at the accident patterns that were happening and not worry about where it ranks in that list of top 1,000, which is why I say it is misleading. People might think they have done something, whereas in fact they haven't. They are looking at where it ranks somewhere in the top 1,000 when what they should be looking at is the accident pattern - and it continued. Q. In terms of the monitoring that would be appropriate, aside from looking at the continuation of the accident pattern, would you also look at any increase in the traffic usage of the intersection? A. Only to see what sort of traffic congestion problems it caused. Volume is only an explanation for accident numbers. It still leaves the accidents numbers and the risk there, and that's what the idea of black spot treatment, or safety treatment programs are, to reduce the accidents. Q. Would the monitoring that you are suggesting should have been taken then require an analysis of the consequences of the accidents? A. The consequences of the accidents? Q. Yes. A. How do you mean? The severity? Q. As one indicator. A. In terms of traffic engineering, the severity of the crash is not relevant. It is the accident type that is relevant. The accident type has contained within it the severity of that accident type. For example, head on crashes are more severe on average than rear end accidents, because there are more fatal injuries in a head on crash for obvious reasons than there are in rear end crashes. 66 Questioned by Mr Barrett about the published guidelines referred to in his, and other, reports, Mr Schnerring said that, in his opinion, the sight distances referred to should be taken from the perspective of the turning vehicle and that distances would be taken from "stop line or at least at the point where the vehicle first enters the intersection which, in this case, would be a line between the nose of the median and the other channelised median on the left". 67 He, later perhaps, encapsulated his view by saying, "If I had inadequate sight distance from the stop line or near the stop line and I had an accident history, I would take out the filter turn. I would be acting in accordance with part (a) of the guide and I would not consider part (b)". 68 There was further questioning by Mr Barrett about the guidelines: Q. Mr Schnerring, with a number of these guides I think your position is that they indicate a practice that should be undertaken unless there is good reason to depart from them? A. Yes. Q. You are not suggesting that from the moment the guide comes out that a road authority is required to suddenly go back to all the existing road structures and suddenly make them comply with the guide? A. No, not drop everything and do that. But it is appropriate to bring up to date as practical to comply with the new standard and that - or new guidelines, otherwise we would have a road environment that had things designed to one standard at some locations and retained at - old standards retained elsewhere leading to inconsistencies in quality and driver expectations from one location to another, and that would provide an unsatisfactory road environment. So retrofitting should be undertaken and it's recognised but it can't obviously be done instantly and all at once. Q. In essence, a guide which is setting out a position is setting out the desired position for any future work in relation to new construction? A. And any modification for reconstruction. Q. All right. So at any particular point in time when some new construction is done on an old site, you would say the guides apply to try and bring the site up to standard? A. Well, you have to. You can't reconstruct it on the old standard or guide. 69 In cross-examination, Mr Fishburn agreed with Mr McIlwaine that, in light of its accident record, the subject intersection should be regarded as of very high risk. He also agreed that an increase in the rate of "right turn against" accidents in the period between 1994, when a right-hand turn arrow was introduced as an alternative to a filter turn and the date of the accident indicated the need for further investigation. He would not, however, concede that it necessarily indicated that the problem had not been solved. TRAFFIC LIGHT GUIDELINES: 70 The guidelines, referred to and partly quoted in the above evidence, warrant, I think, further attention. They are contained in the publications Traffic Signals – A Guide to the Design of Traffic Signal Installations published by Austroads in 1993 and RTA's own publication in 1992 Traffic Signal Practice Design. The relevant parts of the former publication read: "When controlled by circular signals alone, right turning traffic will "filter" through gaps in the approaching traffic and in the parallel pedestrian traffic during the green and intergreen periods. When this practice may be unsafe as detailed in (a) to (e) the turn should be stopped by a red arrow signal. The appropriate use of the green arrow signal is detailed in (f). (a) the right-turn arrow should be used to prevent "filter" turns where: (i) The sight distance to oncoming vehicles is inadequate (100m at 50km/h) …………………………………………………. …………………………………………………. (v) Accident experience at the site indicates turning traffic is unable to detect sufficient safe gaps in which to turn. …………………………………………………. (b) Where filter turns are desirable in order to decrease delay in periods of low traffic flows, but are undesirable during period of high traffic flows, then the red arrow should be displayed during the periods of high flows and should be extinguished when adequate gaps are detected in the opposing traffic flow (if this facility is available) or extinguished after a fixed duration derived from one of the controller timing periods (eg "the late start" period, the "WALK" period or the "Minimum green" period). This has particular advantages for signals in co-ordinated systems where delays for turning traffic can be quite high due to the use of a common cycle length. …………………………………… (f) The right-turn green arrow should be used when: (i) the performance of the intersection is improved (as evaluated in Section 6.2.3) by providing an unopposed turning movement (ii) a filter turn is not permitted as described in (a) to (e), and a green arrow is necessary to provide a safe right-turn movement." 71 In the 1992 RTA publication, paragraphs 6.3.2 and 6.3.2.1 read: "6.3.2 Right-turn filter. A right turn filter is where right-turn vehicles select gaps in the opposing vehicle flow. A filter right turn may be used where a right-turn bay exists or can be provided, or in a shared lane where the right turn does not cause excessive delays to other vehicles and the flow is low enough to allow filtering without compromising safety or causing excessive delays. The flow rate of the filter right turn is affected by: · the rate of the opposing flow · the speed of the opposing flow · the number of lanes (or width of road) that right turn vehicles must cross · the length of phase during which the filter may take place The techniques outlined in Research Report ARR 123 Traffic Signals: Capacity and Timing Analysis (ARR, fourth reprint, 1989) may be used to determine whether a filter right turn will operate effectively. Often one or two vehicles will be able to filter during the intergreen. Any right-turn vehicle which has crossed the stop line during the green interval may legally complete the turn during the intergreen. A filter right turn should not be permitted on approaches where: · Sight distance is insufficient for the right-turn vehicles to filter safely ………………………………………………………. · There is an adverse traffic accident history involving filtering right-turn vehicles (including rear-end collisions). ………………………………………………………….. 6.3.2.1 Filter option At some sites a filter right turn movement may operate efficiently during off-peak periods but not operate efficiently during peak periods because it becomes more difficult to accept gaps in the opposing flow. Under Flexilink or Masterlink, it is possible to make the filter optional. However, the site must have a right-turn phase for use when the filter right-turn is not permitted. THE CASE AGAINST RTA: 72 In support of their respective cases against RTA, Mr Caldwell and Ms Ingham relied upon the evidence of Mr Stuart Smith and Mr Schnerring, together with evidence called in RTA's own case, and documentary material including the guidelines already referred to and other documents emanating from RTA, itself. THE CASE FOR RTA: 73 RTA, of course, relied, primarily, on the expert evidence of Mr Fishburn. Its principal lay witness was Mr Adrian Paul who has professional qualifications in Land and Engineering Survey Drafting and has been employed by RTA, since 1976, always in the traffic signals section. His present title is Network Operations Leader in a section responsible for the signal operation of the network of signals within Sydney. 74 He said that traffic signals, numbered 426, were first installed at the intersection in December 1975. When first commissioned there were three phases, but only one turning arrow, namely, for vehicles travelling west in the Pacific Highway and intending to proceed north. There was a prohibition against turning right from Pretoria Parade into College Crescent but, otherwise, all turns were permitted. In 1982, following a recommendation from Hornsby Council's Traffic Committee, right hand turns from College Crescent into the Pacific Highway were also prohibited. 75 The next adjustment at the intersection was the creation, by road markings, of a small right hand turn bay for vehicles waiting to turn right from the Pacific Highway into Pretoria Parade. 76 Mr Paul testified that from time to time, in the course of his duties, he received letters from members of the public, motoring organisations etc. dealing with problems at intersections, within his field of responsibility, including the intersection. For instance, a letter from National Roads and Motorists Association (NRMA) dated 13 March 1985 made a complaint of delays experienced by city bound travellers on the Pacific Highway "due to the formation of queues by the through movement into College Crescent". This letter proffered the solution that right hand turns into Pretoria Parade be restricted, or alternatively that, "the northern approach of the highway and the College Crescent approach could operate under separate phasing". 77 Omitting formal parts, RTA replied: "The Department agrees a queuing problem does exist given certain traffic conditions. However, in a bid to alleviate this situation, the Department has introduced the co-ordination of this set of traffic signals with the set of traffic signals at the intersection of the Pacific Highway with Edgeworth David Avenue. This co-ordination system operates in that vehicles travelling southbound at both sets of traffic signals are given a green signal simultaneously. This gives vehicles queued on the Pacific Highway at Pretoria Parade time to clear the intersection from the previous set of signals. The matter raised in your letter regarding the banning of the right turn for vehicles turning right into Pretoria Parade from the Pacific Highway has previously been examined by the Department. It was found that there is no suitable alternative route from the Pacific Highway into the area serviced by Pretoria Parade. You may be assured the present conditions at this intersection will be continually monitored and adjusted accordingly." 78 In November 1985, Hornsby Council asked RTA to investigate the inclusion of a right hand turn arrow from Pacific Highway into Pretoria Parade, "as residents of the area are delayed for long periods in entering the street". The Department replied: "The Department proposes to mark a short right turn bay in the Pacific Highway for traffic turning into Pretoria Parade. It is expected that this action will alleviate the problems raised in your correspondence." 79 On 7 May 1986, Hornsby Council wrote once more to RTA: "On the 8th May, 1985, you referred to Council a copy of a letter from Mr D. F. Bridges regarding traffic problems on the Pacific Highway between Edgeworth David Avenue and College Crescent, Hornsby (your reference 20.1. TS. 213). It is noted that the Department has re-arranged the markings on the highway for southbound traffic, but this appears to offer only minimal improvement as the holding bay for right turn traffic to Pretoria Parade is very short. Furthermore, the current arrangement does not overcome the problems caused by right turning traffic into Leonard Street. Council is not in favour of preventing this movement as it is the only reasonable means of access into this area for traffic travelling north along College Crescent because of the existing right turn ban at Pacific Highway. Having regard to these circumstances council would be agreeable to the provision of a sheltered right turn bay into Leonard Street on the Pacific Highway and the conversion of the western kerb side lane for the use of through traffic. The Department is again requested to provide a right turn arrow from Pacific Highway to Pretoria Parade. At the present time traffic making this movement is often prevented from doing so due to the heavy volume of traffic entering the Highway from College Crescent." 80 Omitting formal parts, RTA replied: "Observations since the alterations to the road markings for the right turn movement into Pretoria Parade, indicate that the arrangement has been effective in alleviating the problems that existed in this approach. The present conditions do not warrant the provision of a right turn phase, however, traffic conditions will be periodically reviewed. Concerning the median opening at Leonard Street the Department is at present preparing a traffic management scheme for the Pacific Highway and details of proposals will be forwarded to council in the near future." 81 In 1994, RTA introduced a signalised right hand turn movement for traffic waiting in the right hand turn bay to turn into Pretoria Parade. This was referred to as the D phase and involved a minor reconstruction of the equipment at the intersection, including the reprogramming of the signal controller box and the placement of an additional detector in the right hand turn bay. It seems that the trigger for the change was a letter dated 23 November 1993 from NRMA (omitting formal parts): "We have received a complaint regarding the traffic conditions at the above location. Our member feels that southbound traffic on Pacific Highway cannot see northbound traffic on College Crescent. An NRMA inspection confirmed our members report. Analysis of Roads and Traffic Authority's crash data found that approximately seventy percent of accidents were classified as right through for traffic heading in the same directions as specified by the member. It may be appropriate to provide a right turn arrow for southbound traffic in Pacific Highway. We would be pleased if this matter could be investigated and action taken. If you have any enquires please don't hesitate to call Naomi Nix on (02) 260 8249." 82 Mr Paul said that he discussed the letter with other officers of RTA. Inspections of the intersection were carried out, there were traffic counts and there was an analysis of the use made of the turning bay. Documents relative to these matters were admitted into evidence as part of exhibit 2D-19. 83 Exhibit 2D-22 constitutes an RTA Job Instruction. It relates to the work of providing a right hand turn phase at the intersection for southbound traffic and indicates that such work was completed on 24 July 1994 at an estimated cost of $10,000. The reason for the work is stated, "Hot Line Priority". Mr Paul said that in 1994, he was familiar with RTA Traffic Signal Practice Manual published in 1992 and the Austroads publication of 1993. He said that to the extent of any difference, RTA preferred its own guidelines. 84 Mr Paul said that it was he who was responsible for the decision to implement a right turn signal at the intersection and that in making that decision he took into account the extent of queuing of southbound traffic turning right into Pretoria Parade; accident statistics; the geometry of the intersection and the operation of the signals. 85 Following July 1994, the signals operated on a 4-phase system, the pre-existing three, with the addition of a right turn phase for southbound traffic turning into Pretoria Parade. The new phase did not prohibit filter turns into Pretoria Parade and Mr Paul conceded that this could have been achieved without further cost. 86 In 2004, according to Mr Paul's testimony, there was a further change to the phasing of the lights at the intersection by the introduction of a right turn red arrow, in effect, prohibiting filter turns into Pretoria Parade between 4pm and 4am, seven days a week. He was again involved in the decision making process which, this time, resulted from an approach by the road safety section of RTA. In making a decision, he said he again took into account traffic volumes; site geometry; accident statistics; signal operations and the operation of what was called Sydney Coordinated Adaptive Traffic System, a system for the coordination of various sets of traffic signals. 87 As to traffic accidents at the intersection, Mr Paul said there appeared to be a trend of accidents in the afternoon and evening, typically from Wednesday through to the weekend period, and involving vehicles turning right into Pretoria Parade, colliding with vehicles proceeding north in College Crescent. At the time, he said that he considered whether to implement the right turn red arrow on a full time basis or, as he decided, on a part time basis. 88 He gave evidence of one further change, namely, an alteration to the central median designed to link the intersection with the intersection, a short distance to the north, of the Pacific Highway with Edgeworth David Avenue. The effect of this was to reduce the Pacific Highway from Pretoria Parade northbound, from 3 lanes to 2 lanes. At the same time, "no stopping" restrictions were applied permanently to the western side of the Pacific Highway in the section from Pretoria Parade to Edgeworth David Avenue. 89 In cross-examination by Mr Mcllwaine, Mr Paul agreed that by January 1994 the intersection was regarded by RTA as a "black spot" and that was a factor to be taken into account when considering proposals regarding the intersection. He agreed that the letter from NRMA to RTA of 23 November 1993 indicated that a member of NRMA had complained about sight distances at the intersection and that there had been an inspection by NRMA, which confirmed the problem for south bound traffic turning into Pretoria Parade. 90 Mr McIlwaine questioned Mr Paul in relation to the requirements of the guides and there was this exchange: "McIlLWAINE: Q. I will read you what is in the RTA manual. "Filtered right turn should not be permitted on approaches where there is an adverse traffic accident history involving filtering right turn vehicles"? A. Yes, it is in the manual. Q. The Austroads document uses this form of words in its prohibition of filter right turns: "The right turn red arrow should be used to prevent filter turns where accident experience at the site indicates turning traffic is unable to detect sufficient safe gaps in which to turn". Would you agree that both the RTA Practice document and the Austroads guide in respect of that prohibition are the same - use different words, but are the same? A. Basically the same, yes sir. Q. It was because the intersection, so far as south bound traffic on the Pacific Highway turning right into Pretoria Parade, had a traffic accident history which meant that the intersection was classified as a black spot? A. Yes sir. Q And because of the letter from the NRMA drawing to the RTA's attention that there was a problem with the sight distance for south bound traffic on the Pacific Highway seeing north bound, that is the opposing traffic on College Crescent, and because the NRMA had carried out an inspection itself and confirmed that was the case, and because of the requirements of the RTA Practice, that you approved, as evidenced by exhibit 2D22 that the lighting system at the intersection be "reconstructed" to use your word, so as to add an arrow facing south bound traffic wishing to turn right into Pretoria Parade, is that correct? A. No sir, that was not the only reason that change was made. McILWAINE: Q. Were the reasons that I have put to you significant reasons? A. They were factors that were taken into consideration in coming to that decision, yes. Q. Where they significant reasons? A. They were factors that were taken into consideration in coming to a decision, yes. Q. Were they significant reasons? A. To a point, yes. Q. And non conformity with the RTA Practice would be a significant reason for you to approve an alteration of a traffic control signal system, wouldn't it? A. No. McILWAINE: It would be a significant factor in your mind when deciding whether to approve an alteration to a traffic control light system? A. Yes. McILWAINE: Q. It would be a significant factor in your mind, when approving any alteration to traffic signals - - A. Yes. Q. - - that the alteration would make the traffic signals conform with the RTA Practice? A. Yes. 91 As to whether, in the period between 1994 and 1997, the traffic lights could have been reprogrammed so as to permit a right turn into Pretoria Parade only on a green arrow, Mr Paul said that this would have required the installation of a new computer chip and possibly some re-wiring. In effect, he agreed that it would be a relatively simple operation. 92 Mr Paul told Mr McIlwaine that after 1994 he continued to have responsibility for the operation of the traffic signals at the intersection. However, he said that his responsibilities did not include the monitoring of accidents and he was not aware of any change in the accident statistics, saying that this was the responsibility of the road safety section. 93 After establishing that after 1994 the only filtered right hand turn permitted at the intersection was for southbound vehicles turning right into Pretoria Parade, the cross examination continued: "Q. So, when the statistics which have been provided by the RTA say that 75 percent of the accidents that happened in 1995, 1996 and 1997 were opposing vehicles turning, that means that 75 percent of all the accidents that happened at this intersection involved vehicles turning right into Pretoria Parade from the Pacific Highway, colliding with vehicles coming up College Crescent? A. Based on our previous discussions, yes sir. Q. So is the answer to my question "yes, that's correct"? A. Yes sir. Q. So that if 75 percent of an increase of somewhere in the order of 40 percent of accidents occurred involving traffic turning right into Pretoria Parade from the pacific Highway after the alterations that had been made, approved by you, wouldn't that suggest to you that the problems encountered by motorists carrying out that manoeuvre had not been solved? A. There was still an issue to be resolved, yes, involving that manoeuvre. Q. And, indeed, the problem had got worse? A. Based on what you have just quoted, yes, there had been an increase. Q. And if I were to tell you that the statistics show that during this period the worst day of the week for accidents at this intersection was a Saturday, would that suggest to you that particular attention should be paid to the phasing of the lights at this intersection and particularly having regard to Saturdays? A. If that is what the accident history showed, yes, that would have been investigated." 94 Mr Renshaw's cross-examination also challenged Mr Paul as to the adequacy of what was done in 1994. There was this exchange: "Q. Well, you see, you say the change comes about because of the NRMA? A. Yes. Q. Which means that you must have accepted the validity of the complaint of the NRMA, is that not so? A. Yes, it was worthy of investigation. Q. The first phase green, green in both directions? A. Yes. Q. Does nothing to address a sight distance problem, does it? A. No. Q. So the response, although activated by the NRMA's letter, does nothing on the first phase to address it at all, does it? A. On the first phase, no, it does not. Q. And then the next phase what happens as you are going south? A. A green circle is on and there is the introduction of the right turn green arrow. Q. And that is activated by--- A. A motorist waiting to turn right. Q. Well it is activated by queuing in the intersection, isn't it? A. It is motorists waiting on detectors in the right hand bay. Q. So when there is low usage and people see a green light, they go through on a green light facing them? A. Yes. Q. On a filter system? A. That's correct. Q. At that time no account is taken of sight distance, is there? A. Sir, at which time? Q. At the times of low usage? A. I am not quite sure of your question there. Who? Q. You see, you are trying to remedy a perceived problem? A. Yes. Q. Is that not so? A. Yes. Q. And the remedy, if in fact what Mr McIwaine puts to you is correct, is worse than the ailment, isn't it, because the object of the change is to reduce accidents, is it not? A. Yes, it is. Q. If it increases accidents, that is a very unfortunate outcome? A. Yes. Q. And in fact would argue powerfully that the solution applied was, to put it kindly, ineffective, is that not so? A. Ineffective to a point, yes. Q. Well, if it increases, it is totally ineffective, isn't it, worse than the situation as it was before? A. It may have resulted in a change in accident statistics. However, it is addressing the initial request. Q. Yes, but look, if it makes it worse and that was the general application that the RTA engaged in, in this State, it would be a revolution, would it not, if that was the basis of their activity, that every intersection they interfered with the traffic statistics got worse - that is a situation that in the administration of the department is totally unacceptable, isn't it? A. I can't answer that. Q. But it is obvious, is it not, that the solution got something drastically wrong? A. There was an outcome that was undesirable. Q. And that is another way of saying that something was drastically wrong in the solution, wasn't it? A. That solution or that initial re-phasing may not have necessarily reduced the accidents, that's correct. 95 Later, Mr Paul conceded to Mr Renshaw that nothing informed motorists, wishing to turn right into Pretoria Parade that, if they waited in the turning bay, rather than attempting a filtered turn, there would, on the 4th phase of the lights, be a green right turn arrow. He also agreed that at times of light traffic the 4th phase, which depended on the pressures of cars in the turning bay, may well not be activated at all, as seemingly occurred in the present case. 96 Mr Renshaw pursued the subject of the accident record at the intersection becoming worse: "Q. I take it you'd agree that the D-phase would have, when it was implemented, simply had arrow turning - green arrow turning? A. That was an option, yes sir. Q. And that would have cost no more than what was implemented by the alternative D-phase? A. Possibly. Yes sir. Q. And you would agree that it would seem that that would solve the problem - actually be a solution to the problem? A. It was a solution, yes. Q. But it would actually be the solution to the problem? A. No sir, not at the time of the investigation. Q. Well it had to be a better solution than the one implemented, didn't it? A. It was a possibility, yes sir, but not the preferred option. Q. Well you see, what I am putting to you is that the preferred option has to be preferred, because of reasons that have a foundation in knowledge, expertise or rationality, is that not so? A. Yes sir. Q. And that would be you apply a solution to a traffic problem and you get a better result? A. Yes sir. Q. And if you don't get a better result, you know that you had an inappropriate solution? A. Yes sir. Q. The alternative was a green arrow at all times? A. Yes sir (witness nodded). Q. You'd have to agree, would you not, that had that situation been implemented, it would have been a successful solution? A. It may - it may have been more successful than the option that was originally implemented. Yes, it may have been more successful." 97 Three other lay witnesses were called in RTA's case, Mr Andrew Dorrian, Mr Stephen Levett, and Mr Damien Chee. Mr Dorrian, whose evidence was somewhat inconclusive, is presently employed as the traffic information analyst in RTA's Central region. He has been with RTA since 1989, during which period he has held positions of program research officer within the road safety section of the Sydney region office and as road safety manager within the Sydney region office (the latter in an acting capacity for 14 months). 98 In the period from 1994 to 2001, Mr Dorrian said that one of his core functions was to operate the computer program associated with RTA's crash data base, called "PC Crash". This was "a menu driven accident database storage and retrieval system". He told Mr Barrett that it was part of his duties to identify locations, which needed investigation. Elaborating: "Q. How did you go about identifying those locations? A. There were a number of paths that were followed. The RTA published an accident black spot list, which was one of the triggers for investigating locations. Other avenues were in response to observations of RTA staff on the network that locations appeared particularly hazardous or dangerous or there was evidence of previous accidents. Other triggers were in response to letters or calls of complaints to the RTA, and beyond that there were my own efforts both as program research officer and as crash analysis leader to attempt to use the resources that were available within the road safety group to its best advantage and provide the best quality of information that could be gained in terms of locations which were potentially hazardous." 99 In 1995, 1996, and 1997, Mr Dorrian said that he carried out an analysis in relation to accident patterns. On each occasion, information available for the 3 most recent years was considered. He was particularly seeking to identify locations with accident patterns such as accidents involving pedestrians, right turn collisions etc. The RTA accident prevention guide, in this connection, regarded 5 accidents of a type within 3 years as establishing a pattern, at least where the accidents were severe. He said that currently over 2000 locations met that criteria. 100 Mr McIlwaine, in his cross-examination of Mr Dorrian, put to him the accident statistics in relation to the intersection as annexed to Mr Fishburn's report. There was this exchange: "Q. Well, can I take it then that 24 crashes in three years would not just enliven but be a matter of particular interest to you? A. If the accidents - if most or all of the accidents were of a similar type, then I would have to say yes, it would be of interest. If the accidents were of varying types, it would depend on whether there were particular types of patterns that were present. Q. If that same intersection for the three years before that, that is to say 1994 back to 1992 had a history of 15 crashes in that period, would that be something that would also enliven your interest from a road safety point of view? A. Again, I would say possibly. Q. Is it possibly because, as you said a moment ago, you would want to look and see if there was any particular kind of accident that was occurring; is that right? A. I would want to know two things and I would want to know are there any particular types of patterns that can be seen, the other thing that I would want to know is, is this a location that I should be investigating now or are there any others that I'm aware of that have larger patterns or larger total numbers of accident or more explicit evidence of a problem. Q. The question I'm asking you is, if you assume a record of the kind that I've just asked you to assume, 24 crashes in the three years 1995 to 1997, and 15 crashes in the three years 1992 to 1994, and if I ask you to assume that 75 per cent of those crashes were what's described as opposing vehicle turning crashes, which you would understand to be one vehicle turning across the path of another, that would be statistical information which would be of interest? A. Yes. Q. And it would be of interest because that is a high order of crashes of the same kind over a lengthy period of time at an intersection? A. Yes. Q. If I tell you that they are the statistics for the intersection in so far as southbound traffic on the Pacific Highway turning to its right into Pretoria Parade, that would suggest to you that that was an intersection which required very close looking at to see why there was such a high accident rate in the course of manoeuvres, vehicles turning from the Pacific Highway into Pretoria Parade? A. Given the problem that you've described to me, yes, it would certainly be worth looking at. Q. Well, it would be more than worth looking at because those statistics that I've asked you to assume would indicate that there was a very real problem at this intersection for traffic turning from the Pacific Highway right into Pretoria Parade? A. What you've described will seem to - or would suggest that, yes." 101 Mr Levett, who has been employed by RTA since 1973, is now the programming manager in the Road Safety Strategy Branch. His role is to administer the Commonwealth "black spot" program, which is a program for elimination of "crash related" sites. The sites can be nominated by RTA, itself, by Local Government bodies or even by individuals and community groups. He said that according to records available to him, the intersection has not been nominated by anyone for the purposes of the program, which became functional early in 1997. Before then he said there was not, to his knowledge, within the RTA a section or group which classified areas as "black spots". He was unable to explain the reference in the plan dated 12 January 1994, part of exhibit 1D-20 to "black spot 499". 102 Mr Chee said that he had responsibility for a state funded "black spot" program. He had access to the program's records since 2001/02, but not for any previous period. He testified that, in the period since 2001, the intersection has not been nominated for, or funded out of any State funded "black spot" program. COUNSELS' SUBMISSIONS AS TO THE LIABILITY OF RTA: 103 Mr Renshaw relied heavily on evidence indicating that, following the 1994alteration to the phasing, the rate of accidents at the intersection, particularly "right turn against" accidents, increased. It follows, as I understand his submission, that the 1994 solution constituted a breach of RTA's duty, in that it intervened to provide a solution which, actually, exacerbated the problem. Moreover, it did not adequately monitor the consequences of its 1994 intervention in the period prior to the subject accident, as such monitoring would have led to a more appropriate intervention, namely, in Mr Renshaw's submission, a total ban of right hand turns into Pretoria Parade, except upon a green arrow. 104 He referred to Liverpool City Council v Wade (2004) NSWCA 340. That was a case where the Plaintiff's car, as it approached a crest, strayed partly on to the wrong side of the road and collided with an oncoming car. The road was in poor condition, had no marked centre line and an uneven edge, which fell away into loose gravel. 105 Against the Council, the Plaintiff alleged failure to adequately maintain the road and failure to adequately mark and sign post the road. After referring to the decisions of the High Court in Brodie v Singleton Shire Council (2001) 206 CLR 512 and Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512, Tobias JA, with whom Mason P agreed, said: "As the present case is a road user (or Brodie ) case and not a pedestrian (or Ghantous ) case, the Council might reasonably have foreseen that road users such as Mr Millett, when approaching the blind crest on Second Avenue to the intersection, might, whilst avoiding the left hand edge of the roadway, nevertheless cross the imaginary centre line onto their incorrect side of the roadway. Furthermore, it was reasonably foreseeable that without the guidance of a marked centreline, there was a substantially greater risk that that imaginary line would be crossed as a consequence of some misjudgement or inattention or even carelessness on Mr Millett's part. This risk was foreseeable whether or not the road user was exercising reasonable care for his own safety. In other words, it may be accepted for present purposes that it was obvious that the absence of a marked centreline was hazardous in that a road user, unless he or she exercised reasonable care, might misjudge the position of the centre of the roadway and thus stray onto his or her incorrect side of the road. But it was that very absence of a marked centre line combined with a relatively narrow carriageway with a severely broken edge which it was reasonable to avoid, that made it more problematic and difficult for a road user such as Mr Millett to keep to his correct side of the roadway irrespective of whether or not he exercised reasonable care for his own safety. Thus the Council's duty was in my opinion breached because it knew or ought to have known that a road user approaching the crest and particularly one who was not keeping a proper lookout or who was travelling too fast in the circumstances, might misjudge the position of the imaginary centreline. If the position be otherwise then the Council would never be liable to the driver of a motor vehicle approaching the crest in Second Avenue at the intersection who strayed over the imaginary centreline although it may be liable to a passenger including one who is guilty of contributory negligence by, for instance, failing to wear his or her seatbelt. In my respectful opinion, the difference between Sheller JA and myself is this. His Honour has in [16] above applied to what is a road user (driver) case the principles formulated in the joint judgment in Ghantous at 581 [163] with respect to pedestrians. Accordingly, as Mr Millett was guilty of contributory negligence in that he failed to take reasonable care for his own safety, the Council could not be held in breach of a duty of care to him. But as I have attempted to demonstrate, there is a difference at least at the breach of duty stage of the inquiry, between what the law requires of a road authority in exercising reasonable care with respect to a pedestrian and what it requires in exercising such care with respect to a road user/driver. The law regards it as reasonable in the former case for the authority to expect an adult pedestrian in broad daylight to exercise ordinary care for his or her own safety to perceive and avoid obvious hazards. The law regards it as reasonable in the latter case for the authority to remedy a defective roadway even where the road user fails to exercise ordinary care for his or her own safety. This is because the law recognises that drivers of motor vehicles, like employers, fail on a daily basis to exercise care for their own safety. For economic and social (policy) reasons, the law therefore requires road authorities, like employers, to take heed of the conduct of road users and, therefore, to exercise reasonable care to provide a roadway which will at worst reduce, and at best eliminate, the injurious consequences of that conduct. In the present case, the exercise of that care required, as being effective to avoid the accident that occurred, the provision by the Council (at little cost) of a marked centreline on Second Avenue on its approach to what the Council knew to be a blind crest. Its failure to do so constituted a breach of its duty of care." 106 Mr McIlwaine submitted that the magnitude of the risk at the intersection had clearly been identified from RTA's own accident statistics, and from the letter from NRMA dated 23 November 1993. He submitted that the July 1994 response was completely inadequate, in that it did not prohibit filter turns. He submitted that to allow filter turns to continue was contrary to its own guidelines and the 1993 Austroads guidelines, given the restricted sight distance available to traffic turning right into Pretoria Parade. He pointed out that, on the evidence, the prohibition of filter turns could have been achieved at very little expense. He also pointed out that, apart from Mr Fishburn, RTA called no witness to explain why the 1994 response of RTA was appropriate in the circumstances. Mr McIlwaine submitted that it was also relevant to consider that, in the years from 1994 to the accident, the accident rate at the intersection increased yet there was no further intervention, indicating, so he contended, a lack of appropriate monitoring. 107 Mr Barrett, on the other hand, submitted that Ms Ingham, from where she said she was, when she commenced her turn, had adequate sight of traffic approaching north in College Crescent. 108 He submitted that it was to be inferred from the evidence, particularly the evidence of Mr Paul, that RTA responded reasonably to the risks identified. He also pointed to the fact that the guidelines do not indicate the positions from which sight lines should be calculated. 109 Mr Barrett contended that, as a matter of logic, it could not have been foreseeable that the introduction of a right hand turn arrow, in 1994, would have increased the incidence of 'right turn against' accidents and that, therefore, the response of RTA in 1994 could not be categorised as negligent. 110 He contended that I should reject Mr Schnerring's view that safety factors, in effect, should be regarded to the exclusion of traffic flow. In this case, he submitted it was relevant to take into account the possibility of a bank up of traffic waiting to turn right into Pretoria Parade, thereby restricting the flow of traffic on the Pacific Highway. CONCLUSION AS TO LIABILITY OF RTA: 111 Part 5 of the Civil Liability Act applies to the action against RTA, it being a public authority within s41. 112 After judgment was reserved in this case, the High Court gave judgment in Commissioner of Main Roads v Jones 215 ALR 418. No party sought to make submissions upon that case and, as it appeared to me, that it decided no principle relevant to this case, I did not offer counsel the opportunity to make further submissions. 113 However, the court following Brodie v Singleton Shire Council did discuss the ambit of the duty of care imposed upon a road authority. At paragraph 39, Gummow and Hayne JJ said: "Consistently with the decision in Brodie v Singleton Shire Council, it is not an issue that a statutory body, such as the Commissioner, may come under a common law duty of care in relation to the exercise or failure to exercise its powers and functions. In submissions to this Court, the Commissioner did not dispute the existence of a duty of care. This obliged the Commissioner to take reasonable care that its exercise or failure to exercise its powers and functions did not create a foreseeable risk of harm to road users, including the respondent." 114 In this case, by July 1994 RTA knew that the intersection had a bad accident history, particularly with "right turn against" collisions and that the NRMA, upon complaint by a member had investigated and found valid the contention that southbound traffic in the Pacific Highway, wanting to turn right into Pretoria Parade experienced difficulty in sighting northbound traffic on College Crescent. In my opinion, because of these two circumstances, the traffic signalling system at the intersection did not meet, in 1994, the standard required, either by RTA's own guidelines of 1992, or the 1993 guidelines of Austroads. Such standards required, in my opinion, that filtered turns into Pretoria Parade be prohibited. This was, or should have been, known to RTA. 115 That being so, in my opinion, its 1994 response was patently inadequate. With regard to sightlines, I should add that, in my view, the guidelines imply that sight distances be calculated from at, or near, the appropriate stop line. At this intersection, a driver seeking to turn right into Pretoria Parade in order to make a filtered turn with safety, needs to advance much further into the intersection than the position from which a right hand turn would normally commence, creating a trap for the inexperienced or unwary. Moreover, nothing indicated to a driver that, if he or she waited in the turning bay, a right hand arrow would ultimately appear. 116 To the extent that they conflict, I prefer the opinions of Mr Stuart-Smith and Mr Schnerring to those of Mr Fishburn. I particularly reject Mr Fishburn's categorisation of what was done in 1994 as, "a very clever solution". In my view, it was nothing of the kind. 117 In my opinion, an adequate response by RTA in 1994 to the established hazards at Common Law, required, at least, the response made in 2004, namely, the prohibition of filtered turns between 4pm and 4am each day. This encompassed the period during which the subject accident occurred. The additional expense involved would have been nil or negligible. In my opinion, the evidence does not establish that in 1994 (or indeed in 2004) prohibition of filtered right hand turns between 4pm and 4am had, or was likely to have, any deleterious affect upon traffic flow. 118 Alternatively, RTA's failure, in my opinion, to monitor appropriately the effects of its 1994 remedy in the period prior to the subject accident constituted at Common Law, a separate breach of its duty of care. Although difficult to understand as a matter of logic, it does appear that the incidence of 'right turn against' accidents at the intersection significantly increased after 1994. Reasonable care required RTA, in my view, to be aware of this and to take action to remedy the problem. The simple remedy of prohibiting filtered turns should reasonably, in my view, have been put in place before October 1997. 119 In my opinion, the provisions of the Civil Liability Act do not affect the consequences of the Common Law referred to. RTA did not seek to rely on limited financial and other resources as referred to in s42. 120 As to s45, according to my finding, RTA had actual knowledge of the particular risk which materialised and caused harm, in this case. 121 Upon the question of causation, I am of the view that the primary cause of the accident was the negligence of Ms Ingham in failing to see the oncoming motorcyclist. The question remains whether some degree of causation should be attributed to RTA for its failure to prohibit filter turns at the relevant time. 122 The principles were enunciated by the High Court in March v E & M H Stramare Pty Ltd (1991) 65 ALJR 334, where the driver of a negligently parked truck was held liable at the suit of a car driver who, when intoxicated, negligently drove his vehicle into the truck. 123 At first instance, the claim against the truck driver was successful but this decision was reversed, on appeal, by the South Australian Full Court. Rejecting the "but for" test as the exclusive test of causation in negligence cases, Mason CJ concluded his judgment (in which other members of the Court except, McHugh J agreed) : "As a matter of both logic and common sense, it makes no sense to regard the negligence of the plaintiff or a third party as a superseding cause or novus actus interveniens when the defendant's wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things. In such a situation, the defendant's negligence satisfies the "but for" test and is properly to be regarded as a cause of the consequence because there is no reason in common sense, logic or policy for refusing to so regard it. Conclusion Viewed in this light, the respondents' negligence was a cause of the accident and of the appellant's injuries. The second respondent's wrongful act in parking the truck in the middle of the road created a situation of danger, the risk being that a careless driver would act in the way that the appellant acted. The purpose of imposing the common law duty on the second respondent was to protect motorists from the very risk of injury that befell the appellant. In these circumstances, the respondents' negligence was a continuing cause of the accident. The chain of causation was not broken by a novus actus. Nor was it terminated because the risk of injury was not foreseeable; on the contrary, it was plainly foreseeable. In the result I would allow the appeal." 124 In my opinion, in this case, RTA's breach of duty allowed a dangerous situation to continue, namely, the risk known to RTA that a careless or inexperienced driver would commence a right hand turn into Pretoria Parade from a position where there was insufficient sight distance to vehicles proceeding north in College Crescent. The duty which the law, in my view, imposed upon RTA was to protect motorists, in the words of Mason CJ, "from the very risk" that befell Ms Ingham and, as a consequence, Mr Caldwell. I think it probable, despite the evidence of Ms Ingham that she was well into the intersection before commencing to turn, that she was not sufficiently so to perceive, in time, the single light of Mr Caldwell's motorcycle coming towards her. The accident would not have eventuated if filtered right hand turns were prohibited. 125 As to apportionment of responsibility, it is, I think, appropriate that Ms Ingham should bear the bulk of it. She should not have proceeded if it was unsafe to do so and, in the context of this case, it may be that she should not have commenced to turn until she was almost through the intersection. She had, what in my opinion was, a high duty to make the turn with safety and to give way to oncoming vehicles. I would apportion responsibility as to 70% to Ms Ingham and as to 30% to RTA. CONTRIBUTORY NEGLIGENCE OF Mr CALDWELL: 126 Both Ms Ingham and RTA pleaded contributory negligence against Mr Caldwell, alleging, in summary, that he should have stopped before entering the intersection; that he failed to keep a proper lookout; that he approached the intersection at an unsafe speed; that he failed to brake or otherwise take appropriate avoiding action; and that he drove whilst under the influence of alcohol and/or an illegal substance. 127 Leaving aside the reference to alcohol and/or illegal substances, the other allegations, for the most part, rely on the evidence of the experts, Mr Schnerring and Mr Fishburn. Mr Caldwell contributed virtually nothing and Ms Ingham and the occupants of her car, very little, apart from the evidence that none of them saw the approach of Mr Caldwell until a collision was imminent. 128 Mr Renshaw submitted that, as between Mr Caldwell and Ms Ingham, liability should be equally shared as neither saw the other and, therefore, both were in breach of the obligation to keep a proper lookout. 129 Mr Barrett submitted that there was an onus on Mr Caldwell as he approached the intersection to ameliorate his behaviour because of his awareness of its nature and that he should have adopted a "defensive posture", particularly as he was riding a motorcycle with a pillion passenger. 130 Mr McIwaine pointed to the fact that both Mr Stuart-Smith and Mr Schnerring agreed that an approach speed, within the 60kph allowed by law, was within the probable range, although Mr Schnerring put the top of the approach speed range at 68 kph. Mr McIlwaine submitted that the skid mark is evidence that Mr Caldwell braked and was keeping a proper lookout. 131 It is impossible, I think, as indicated above, to regard the competing opinions of Mr Stuart-Smith, Mr Schnerring and Mr Fishburn as capable of resolution by regard to other evidence in the case. The validity of each opinion, as it seems to me, depends on variable factors unable to be determined with any accuracy. For instance, much would depend on determining, if it were possible to do so, the precise speed at which Mr Caldwell approached the intersection; his precise position when the lights turned to amber; the precise position from which Ms Ingham commenced to make her right hand turn; and the precise speed she attained before impact. 132 In the result, I do not think that I can safely rely on any of the expert opinions as to whether or not the manner of Mr Caldwell's riding of his motorcycle, as he approached the intersection, evidenced a failure to take reasonable care for his own safety. That being so, the onus being where it is, I think that the defendants on this aspect of the case have simply failed to prove contributory negligence on Mr Caldwell's part. In other words, I am not persuaded that it was established, on the balance of probabilities, that Mr Caldwell approached the intersection at a speed that was too fast in the circumstances that, upon the signals changing to amber, he was able to stop with safety before entering the intersection, or that he failed to keep a proper lookout 133 Different considerations apply to the question whether Mr Caldwell was affected by alcohol or illegal substances at the time of the accident. As to the former, at hospital, soon after, there was a nil reading for blood alcohol and there can, I think, be no suggestion that he was affected by alcohol. 134 His blood was not tested for illegal substances. However, in evidence, he admitted to being a user of the illegal drug methylamphetamine, whilst denying that he took any on the day in question. However, at hospital some methylamphetamine was found in his underpants and in the notes of Royal North Shore Hospital at 1am, there is recorded "amphetamines taken". A note at 2.30am which was crossed out seems to read "supposedly taken speed". 135 In support of the contention that I should find that Mr Caldwell was affected by methylamphetamine at the time of the accident, Ms Ingham relied on the report and evidence of Dr Helen Dauncey, a highly experienced Consultant Pharmacologist. She concluded her report of 11 December 1999 with these comments: "24 year old Garry Caldwell was riding his Harley Davidson motorcycle across an intersection in Hornsby at midnight when he collided with the side of a 4WD which was turning at the intersection. Analysis of his blood for alcohol was negative however amphetamines were allegedly found in his wallet and the hospital notes indicate that amphetamine had been taken. He had been an intravenous drug user in the past. On admission to RNSH his blood pressure, pulse and rate of respiration were all elevated for a considerable time but settled to normal values. He was not in cardiovascular shock, which may have produced similar effects (although of shorter duration) and these symptoms are consistent with recent amphetamine use. On admission to hospital Mr Caldwell's Glasgow Coma Scale (GCS) was 15 and it remained for several hours. 17.5 hours later he was deeply drowsy, almost unrouseable and the cause was unknown. Brain scans provided no localised focus that could be identified. This state of extreme drowsiness is consistent with the withdrawal phase after binge use of amphetamine. Deep sedation was followed by a phase of aggressive and hostile behaviour and deep depression. These symptoms and this timing would be expected in someone who had been on an amphetamine binge for a couple of days but who was withdrawing after the drug use stopped. The profoundness of his sleep is an indication that he had probably been taking high doses for several days, as the severity of the withdrawal is proportional to the severity of the habit. Amphetamine would have decreased his capacity to sustain his attention which he was riding and although he may have felt alert, he would have been easily distracted. From the medical records examined, it seems likely that Garry Caldwell was affected by the prolonged use of amphetamines at the time of this accident and that this most probably impaired his ability to sustain his focussed attention on the riding task, increasing his risk of accident." 136 Dr Dauncey gave no oral evidence in chief but was cross-examined upon her report by Mr McIlwaine. He established that Mr Caldwell's behaviour in hospital, referred to by Dr Dauncey in her report, was no more than "consistent" with someone suffering symptoms of withdrawal. She was unable to say whether the behaviour was also consistent with somebody who was in pain and suffering anxiety following serious orthopaedic injuries. She conceded to Mr McIlwaine that, apart from the references in the hospital notes to "speed" and to the finding of drugs in his underpants, there was no clinical finding, apart from findings as to blood pressure, pulse rate, and respiratory rate, which she regarded as significant, to support a finding that at the accident Mr Caldwell was affected by illegal substances. 137 In his case, Mr Caldwell relied on the expert opinion of Associate Professor Graham Starmer, Consultant Pharmacologist. Dealing with Dr Dauncey's report, Professor Starmer proffered this opinion: "1. On examination of the Hospital Notes and the nature of the collision, Dr Dauncey concluded that Mr Caldwell had probably been taking high doses of amphetamines for several days and that, on the balance of probabilities, his driving was most probably impaired by amphetamine at the time of the collision. 2. However, as noted by Dr Dauncey, "there is no scientific evidence of the presence or absence of drugs in Mr Caldwell's blood at the time of the accident". Nevertheless, observations of his physiological status and behaviour have been used to assess the likelihood that he was affected by amphetamine (presumably in high doses) at the time of the collision. 3. Some of the factors that Dr Dauncey has included in her report which led to her conclusion are as follows" 3.1 The Hospital Notes variously refer to the fact that Mr Caldwell had amphetamine in his possession. However, there is no indication that material in Mr Caldwell's possession had been analysed and found to be amphetamine. Even if Mr Caldwell believed that the material in his possession was amphetamine or methamphetamine, there is no surety that it actually was one of these drugs. Furthermore, if the material was an "amphetamine", there is not indication of the identity and/or purity of the sample. With "street" drugs, the identity and potency of the sample are always open to question, as is the nature of any adulterants which may be present. 3.2 It is noted that Mr Caldwell had been an intravenous drug user in the past. Dr Dauncey has suggested (page 4) that "it is possible that he was an IV drug user, he was injecting amphetamine. 3.3 Dr Dauncey noted (page 5) that Mr Caldwell's "blood pressure was elevated for an extended time after the accident but settled to 120/60. The initial elevation was apparently not due to shock". However the Ambulance Report notes that Mr Caldwell's systolic blood pressure was 110mm Hg at 00.09 hours. This is not an elevated blood pressure and Hartmann's Solution (1 L) was administered by ambulance personnel at 00:40 hours, to increase perfusion. The treatment was effective and his blood pressure rose to 135/70 m Hg at 00:49 hours. Once in the Emergency Department, a total of 2.5 L of fluid (Hartmann's Solution and Haemaccel) was administered between 01:10 and 03:30 hours. This fluid would also have influenced Mr Caldwell's blood pressure. I agree with Dr Dauncey that "The initial elevation was apparently not due to shock", since in shock, one would expect an abnormally low blood pressure. Dr Dauncey stated (page 5) that amphetamine raises blood pressure and that there was no other obvious medical explanation for Mr Caldwell's high blood pressure. She does not seem to have considered the severity of Mr Caldwell's injuries and the associated intense pain which he presumably suffered. He required a total of 62 mg of morphine to alleviate his pain between 01:20 and 04:05 hours. The traumata are highly likely to have activated his sympathetic nervous system and any elevation of his blood pressure and heart rate is readily explicable in terms of such a response. 3.3 Dr Dauncey noted that, on a number of occasions in the first few days of his hospitalisation, Mr Caldwell was noted to be sleepy and drowsy. For example, at 17.25 hours on 12 October 1997, he was "drowsy but rousable". In her reporting of the events of that day, Dr Dauncey noted "there were no medical records for the 15 hours between 02:30 and 17:25 hours. In fact, Mr Caldwell had been anaesthetised at 10.55 hours for suturing of facial laceration, closed reduction of a fractured nose, open reduction and internal fixation of a fractured right femur, wiring of the right patella and the application of an external fixator to the right wrist. He left the operating theatre, at 15:20 hours. During the time that he spent in the operating theatre, Mr Caldwell would almost certainly have received a variety of drugs, including anaesthetic induction agents, general anaesthetics, muscle relaxants and intraoperative narcotic analgesics. Given the residual effects of these medications or even only the fact that he had been anaesthetised for a lengthy period, I do not consider that his drowsiness can arbitrarily be ascribed to withdrawal from amphetamine. 3.4 Similarly, Dr Dauncey has commented on the fact that Mr Caldwell was described as being depressed (15 October 1997, 22:00 hours). She noted that depression is "invariably the case during withdrawal after heavy amphetamine use" (page 6). This is true, but obviously, there can be many other reasons why a patient exhibits signs of depression. Further more, Dr Dauncey did not comment on the notes made on the same day (13:20 hours) which state that Mr Caldwell was "alert and responsive this shift". She also did not mention that on that day at 13:50 hours, Mr Caldwell was anaesthetised again for open reduction of his ulna and radius. Similar comments to those above on the emergence from general anaesthesia also apply here. 3.5 In other examples of Mr Caldwell's behaviour which Dr Dauncey cited to support her contention that he was withdrawing from heavy amphetamine use, she noted that on 14 October 1997 at 21:00 he was "very agitated and upset this shift, unable to tell nursing staff what is wrong other than moaning or crying". It is not apparent why the following sentence from the Nursing Notes was not included in Dr Dauncey's report. This states "Finally at this time, has stated he "hurts everywhere" – even following morphine". It would appear to be readily understandable that such a pain state would be likely to render any patient "very agitated and upset", without any need to invoke "withdrawal from heavy amphetamine use". 3.6 The hospital notes describe an incident during Mr Caldwell's hospitalisation when he apparently was abusive and hostile to one of the nursing staff. Dr Dauncey has suggested that deep sedation followed by a phase of aggressive and hostile behaviour and deep depression would be expected in someone who had been on an amphetamine binge for a couple of days and who was withdrawing after drug use had stopped. Furthermore, she suggested that the profoundness of Mr Caldwell's sleep was an indication that he had probably been taking high doses for several days because the severity of the withdrawal is proportional to the severity of the habit. While there are well recognised signs and symptoms associated with withdrawal from large doses of amphetamine, none of these is exclusively caused by such withdrawal. The mental and physical effect of the very severe injuries sustained by Mr Caldwell provide an alternative explanation for much of his behaviour in the first few days after the collision. 4. In conclusion, l do not consider that it is possible, on the evidence provided, to form any definitive linkage between Mr Caldwell's riding behaviour immediately before the crash and his previous recreational drug use, the nature of the drugs(s) he is said to have used, his drug status at the time of the crash, the identity of the presumed "drug" material found in his possession, or the symptoms he exhibited and his demeanour and behaviour while he was in hospital." 138 Professor Starmer was quite rigorously cross-examined by both Mr Renshaw and Mr Barrett. His evidence was not, however, in my opinion, significantly undermined and I prefer it to the extent that it conflicts with Dr Dauncey. It seems to me that there is little or no evidence to support a number of critical assumptions made by Dr Dauncey, particularly her hypothesis that he had, in the days preceding the accident, "binged" on illegal drugs. As Mr McIlwaine pointed out, it is impossible to give meaning to the hospital notes without knowing the questions asked of Mr Caldwell. 139 It should be added that Mr Caldwell himself denied taking methylamphetamine in the period of about a fortnight before the accident. Whilst, as I will indicate, I have reservations about accepting his evidence, there seems to me to be a significant difference between refusing to accept, on the one hand, his evidence that he had not consumed illegal substances for about a fortnight and, on the other hand, making the very serious affirmative finding, as Dr Dauncey would have it, that he had been "bingeing" on methylamphetamine in the period immediately preceding the accident. 140 In my view, quite compelling evidence would be required to support such a finding. That there was no such evidence is to be derived from the analysis by Professor Starmer. 141 Again, in respect of this element of contributory negligence, the onus is on the defendants. Of course, the issue is not whether Mr Caldwell was a user of methylamphetamine, habitual or otherwise, but whether, at the time of the accident, he was driving under the influence of the drug so as to evidence a failure to take reasonable care for his own safety. In my opinion, the evidence, whilst it may create a suspicion, does not establish, on the balance of probabilities, that at the time of the accident he was driving under the influence of a drug. Accordingly, I also reject this aspect of the defendants' case on contributory negligence. Mr CALDWELL'S EVIDENCE ON DAMAGES: 142 Mr Caldwell said that he was born on 8 October 1969 and lives with his parents on a 5 acre property owned by them at 47 Knights Road, Galston. Improvements erected on the property include the family home where he was brought up and where his parents still live; buildings associated with their waste collection and disposal business and a mobile home in which Mr Caldwell resides. He is single. 143 He was schooled at Galston Primary School and Galston High School up to the end of Year 10, when he obtained a School Certificate. From early childhood, he suffered from asthma and, at some point, was diagnosed as suffering from Scheuermann's disease. Those conditions did not interfere with his capacity to enjoy a normal life and he has played soccer, ridden horses and owned and ridden motorcycles. 144 After leaving school, he held several jobs for short periods before he commenced employment in his parents business, Caldwell Waste Services, which, inter alia, at the time had a contract to provide garbage services for Hornsby Council. 145 Initially, he worked alongside his father in the hard physical work of loading and unloading trucks but at the end of 1987, he obtained a driver's licence entitling him to drive the smaller of two trucks employed in the business. 146 On 29 September 1990, he was involved in a motorcycle accident at Hampton, suffering as a consequence, a compound fracture of the left fibula and tibula. In relation to that matter, he came under the care of Dr David Dale, Orthopaedic Surgeon. He was on crutches for about 18 months, returning to work in his parent's business during 1992. He continued to work there until the subject accident. 147 Mr Caldwell said that after his return to work in 1992 he worked either as an offsider on the bigger garbage truck or as driver of the smaller "tipper" truck. Being the offsider involved hard physical work and a good deal of running alongside the truck. His left leg, injured in the motorcycle accident, could cope with this and his work was not affected by his Scheuermann's disease. In 1995, he purchased and, thereafter, enthusiastically rode the Harley Davidson motorcycle, which he was riding when the subject accident occurred. He also continued to ride horses on his parent's property and occasionally played golf. He had no physical handicap which prevented him enjoying these activities. He had a long standing girlfriend. 148 He admitted to Mr McIlwaine that from time to time, he took the illegal substance methylamphetamine, commonly known as "speed", and that he also used marihuana. He claimed not to have taken "speed" in the two weeks preceding the accident and denied ever taking drugs intravenously. He said that, "basically", he did not consume alcohol. 149 In the period immediately before the accident, he said he was working five days a week, mostly driving the "tipper" truck. He categorised himself as "reasonably happy" and said that he was strong and healthy. However, as will hereafter appear, he was lowly paid. Although he worked 5 days a week, he was paid by the hour and they varied according to the work available. 150 At the time of the accident he was still living on his parents' property, but by then he occupied a flat, which he had converted from the garage attached to the main house. For the most part he lived independently of his parents, in that he washed his own clothes, cooked most of his own meals, did his own washing up, ironed his clothing etc. He had a small cooker in his flat but for major meals he used the stove in the main house and his mother also, from time to time, cooked meals for him. He was responsible for keeping his flat clean and tidy. 151 He assisted his parents by mowing lawns and helping about the house and garden. He socialised with members of a motorcycle club called the Lone Wolf Club of which he was a member, and with a circle of friends. He had no problem with his social contacts. 152 Mr Caldwell said that he first became aware of being in hospital about 2 weeks after the accident at a time when members of his family were present. He remembers his mother visiting him at Royal North Shore Hospital and of being transferred to a rehabilitation hospital at Ryde, where he underwent physiotherapy and hydrotherapy. He said that when he returned home from hospital he was in a wheel chair. He took up residence in the house because he required considerable care, which was provided by his mother. He said that she had to do "everything" for him, which included changing dressings, cooking meals and bringing to him anything he wanted. He said that about the only thing he could do was feed himself. 153 He remained in a wheelchair for some months and then commenced to use crutches. While on crutches his mother still had to perform virtually all his personal and domestic needs. He said that during this period he split up with his girlfriend. 154 In the course of the year following the accident, he saw doctors, from time to time; had a psychological assessment and had treatment performed at Royal North Shore Hospital. 155 Going into 1999. he said he had surgical procedures for the removal of wiring in his body and the K-nail was removed from his right femur. Other procedures, including bone grafting in his right wrist, extended into 2001. His right wrist still causes him problems and upon medical advice he wears an elastic support. He said the use of his right arm and hand remains very limited. He cannot lift even moderately heavy items. 156 Since the accident, when he turns his head, he has a clicking sensation in the back of his neck. He said he experiences headaches, which start at the base of his neck and extend upwards into the area behind his temple. On a scale of 1 to 10, he described these headaches as of a severity of 10 and said that he experiences them, 1 to 3 times a month. To combat them, he takes Panadeine Forte and then sleeps for about 2 hours. 157 Mr Caldwell said that the accident has left residual facial scarring, which he now hides with a full beard. Previously he had only a goatee. 158 He continues to experience generalised pain, the level of which depends on his degree of physical activity. He said that this pain differs from anything he experienced previously. He described it as an "aching", which, when it occurs, on a scale of 1 to 10, he would categorise as 4 or 5. 159 He said that his right knee feels as though it is likely to give way, and that there is a lack of strength in it. It aches during cold or wet weather. On a scale of 1 to 10, he described the pain in his right knee as 7 or 8. 160 Regarding his right ankle, Mr Caldwell said that it aches "now and then" and that there is a feeling of numbness in the vicinity of his heel. Depending on the level of his activity, he said that the ankle troubles him about once a month. 161 Mr Caldwell claimed that there has been a substantial alteration since the accident in his capacity for physical exertion. He believes that he is unable to work in the family business as he did previously; is unable to ride horses and is unable to play golf. He has not been able to engage in any paid employment. He asserts that given his background and level of education there is no employment of which he is capable. He said that he is unable to sit for long periods and is unable to go up and down ladders. He faces, according to his testimony, further surgery to his right wrist and his right knee. Some dental work also remains outstanding, which he intends to have done when he is able to afford it. 162 Emotionally, Mr Caldwell said that he now has a short temper for which he takes Deptran, an antidepressant prescribed by his General Practitioner, Dr Roberts, whom he sees about every 2 months and who also prescribes medication for pain relief. 163 He has been told that he requires annual review by specialists. Dr Beard manages his right hand and wrist and Dr Jeffery Hughes, Orthopaedic Surgeon, his right knee. 164 He said that he fills in his days by watching a lot of television, a pastime in which he engaged only occasionally before the accident. He has, however, returned to riding a motorcycle. The motorcycle he was riding at the time of the accident was destroyed, but he acquired a new Harley Davidson cycle about 2 years ago. He has no problem riding it on good roads around town but is not able to ride trail bikes any longer. In the last 2 years, he said that he has had two accidents on his motorcycle but was not injured in either of them. 165 Also, within the last two years, Mr Caldwell said that he moved out of his parent's home into his present accommodation, a mobile home on the property. He said that his mother still helps him with vacuuming, washing his clothes, ironing, and occasionally cooking meals. His younger brother helps him by mowing the yard about his mobile home. He said that he is unable to do the work about the property which he was accustomed to do previously. 166 His parents still operate their waste business but recently lost the contract they had with Hornsby Council. They have diversified into the hiring and collection of rubbish skips for domestic and commercial use. Mr Caldwell said that he is not able to participate in this type of work because of the physical demands it makes, particularly having regard to the condition of his right arm and leg. 167 In relation to his left arm and shoulder, Mr Caldwell told Mr McIlwaine that in the accident a nerve was severed leaving him with little strength in his left arm. The replacement of the severed nerve with one taken from his right lower leg, while resulting in some improvement, has left him with a degree of disability. 168 Because he was unable to return to work after the accident, his brother, Mark, who had been working elsewhere, returned to the business and continued to work there until the beginning of this year when he left, following a dispute with his father. Although Mark's income considerably exceeded his brother's income pre-accident, the comparison is not particularly apt as there was a reorganisation of responsibilities so that Mark took over those of his father, while Mr Caldwell senior performed the work of the present plaintiff. 169 Mr Caldwell said that he intends to buy and live in a project home but asserted that he would be unable to maintain it, particularly the lawns and gardens without assistance. He also claims to require assistance in such matters as vacuum cleaning, the cleaning of bathrooms, and anything that involves heavy lifting or requires him to kneel. He estimated that this assistance would involve about 3 hours a week. 170 Cross-examined by Mr Renshaw, Mr Caldwell said that after the accident, for a short time, he lived with his girlfriend away from his parent's property, in a flat "in the city". He said that this was for less than a year, and that the arrangement "was not working out". Asked whether he looked after himself in this time, he replied, "No, she looked after me". 171 He told Mr Renshaw that he could not remember precisely when it was that he lived with his girlfriend, or the exact period. He was vague as to the time he was completely disabled after the accident and as to when it was that he was able to commence riding a motorcycle again although he thought it was "within the last couple of years". When Mr Renshaw put to him that he was riding a motorcycle in 1999, he replied, "I don't think so, not 1999, I'm not sure, I can't remember". 172 Asked by Mr Renshaw about his use of illegal drugs, Mr Caldwell said that he had been using "speed" for 2 or 3 years before the accident. He was unable to remember what work he did in 1992 or whether he filed a tax return for that year or the year afterwards. He said that he was working in 1994 and that, in the year before the accident, he was working full-time and earning about $300 per week. He told Mr Renshaw, in effect, that he could not remember seeing Dr Roberts in 1996, complaining of increasing back pain, nor could he remember having an x-ray on 9 August that year. 173 He also told Mr Renshaw that he consumed, "speed" by "snorting it" at big parties, a few times a year. He said that the amount of drugs found in his underpants, after the accident, was, "a tiny bit left over in a bag from a party a couple of weeks before". 174 Mr Caldwell said that occasionally he went to a supermarket by himself. Asked whether he was able to carry the goods he purchased, he said, "Depends what I am getting". 175 As to assistance, presently provided by his mother, Mr Caldwell said that she spends about 2 hours per week on domestic duties for him. He said that apart from what his mother does and the mowing of the grass around his mobile home, he can virtually do everything else for himself. 176 Asked about the number of kilometres he has travelled on his new motorcycle, Mr Caldwell said that he could not say. He told Mr Renshaw, however, that he goes out on the bike, up to twice a week. Pressed as to the longest journey he has undertaken, he, at first, claimed not to know, but later said that he went to the Bulahdelah area on at least one occasion. He agreed that after the accident he came under the care of the Royal Rehabilitation Centre at Ryde, but when asked, "Do you remember walking out of the Ryde Rehabilitation Centre because you were sick of doctors?". He replied, "Not off hand, no". It was put to him that his file was closed with the Royal Rehabilitation Centre at Ryde when he failed to keep in contact. He replied, "I don't think so". 177 Upon the subject of Mr Caldwell's capacity to work since the accident and in the future, there was the following exchange with Mr Renshaw: "Q. Well given breaks why couldn't you do a sedentary job of some sort? A. Why couldn't I do a what? HIS HONOUR: Q. Sitting down job? A. Sitting in the one spot for long periods of time, my concentration, um, forgetfulness, a number of reasons. RENSHAW: Q. I take it you have never tried to do anything since the accident? A. Not really, no. Q. You have never asked to assist in the family business in any way? A. I have tried to do things around me house. I just cannot do it. Q. You have never tried to do anything in the family business since the accident is that so? A. No. There is always heavy lifting involved. Q. Have you tried to help your mother in the administrative side? A. I can't concentrate enough. I get too frustrated with it. Q. But you have never tried, is not that so? A. I can't sit down and do bookwork. Q. Would you co-operate to get yourself back into the workforce? A. Yes. Q. Are you keen to get a job? A. If I find one I can do, yeah. Q. Have you been keen to get a job since about what, 1999? A. '99 no. Q. 2 years after the accident? A. No I was still getting operated on. Q. When do you say the operations had finished as far as you were concerned? A. The operations did not finish until 2002 or something. Q. And after that at no time did you feel you could do anything is that right, as far as work is concerned? A. Nothing that I am trained to do, no. Q. Would you be prepared to undergo training? A. As long as I could do the job. Q. Never been suggested to you that you should try something since this accident, try to do something? A. No QBE have not suggested anything. Q. Anyone else suggested you might try to turn your hand to doing something? A. I went and saw someone at CRS I think." 178 Mr Barrett cross-examined Mr Caldwell about his involvement with marijuana before the accident. He conceded that he probably smoked marijuana 2 to 3 times a week and that he had been doing that for longer than he had been taking "speed". He said he started with marijuana when he was eighteen or twenty. He continued to smoke marijuana after the accident but said that he ceased about 2 years ago and that up to the time he ceased altogether, he had been gradually reducing his intake. 179 He agreed with Mr Barrett that, in the period before the accident, it was a fundamental part of his work in his parents business that he have a drivers licence. Asked whether on the day of the accident, he knew it was likely that he was going to lose his licence, he replied, "I can't remember". It was then put to him that, at the time of the accident, he had outstanding charges against him in relation to his manner of driving and he replied, "I might have, I don't know". He answered similarly to a number of questions put to him in relation to specific charges, outstanding, including driving whilst disqualified; driving an unregistered vehicle; driving an uninsured vehicle; driving without a helmet; and driving with plates calculated to deceive. 180 There was then the following exchange with Mr Barrett: "Q. I take it if you had charges outstanding against you, one of which was no helmet, that the charges would have related to riding your motorbike; do you agree with that? A. Mmm-hmm. Q. It was the case as at the date of the accident that you knew there was a prospect that you would lose your licence for some considerable time as a consequence of your driving record? A. Could have. I don't know. I don't remember it. Q. You had a poor driving record before the accident, didn't you? A. I don't know if it was poor. It was not the best, but it was not poor. Q. You had had your licence cancelled seven times before the accident, hadn't you? A. I don't know. Q. You had it cancelled first on 22 July 1988; that could be the case, couldn't it? A. Could have been. I don't remember. HIS HONOUR: Q. You just don't remember these things; is that what you are saying? A. Basically. I know I've had charges in the past, but I don't know when or what." 181 Mr Caldwell said that he had some recollection of going to court about April 1998 when his licence was suspended for 6 months. He accepted that his licence was cancelled again in April 1999 for speeding and, that in March 2000, he was charged with not wearing a seat belt and for driving whilst unlicensed, which resulted in him being disqualified for a further 12 months. 182 He told Mr Barrett that after he broke up with the girlfriend current at the time of the accident, he had other female relationships and lived away from home with these women as partners for short periods of time. He said that he could not remember the length of these periods but added, "a month or so". He was very vague regarding these relationships, particularly as to when they commenced and ended. Although, at one point in his testimony, he indicated that for short periods, he lived away from home with at least 2 girlfriends, he later said that the only person with whom he lived away from home was Siobhan, a woman who apparently became his girlfriend in succession to his girlfriend at the date of the accident. 183 Mr Barrett put to him that, as at December 1999, he had been living with Siobhan in the city for about one and a half years. He replied, "I'm not sure", but added, "It could have been on and off in there for one and a half years, but I wasn't in town permanently for one and a half years, I know that". He agreed that he could have told Dr Morse in December 1999 that he had been living in the city for one and a half years with his girlfriend, but, in answer to the question, "If you told Dr Morse, then it would be right, wouldn't it?", he answered, "I wouldn't have gone into detail about it with him". 184 Asked further about his relationship with Siobhan, the transcript records: "Q. It is the case, isn't it, Mr Caldwell, that your relationship with Siobhan commenced after you sustained the injuries from this accident? A. Probably. I knew her beforehand. Q. You knew her for about five years, didn't you? A. I am not sure exactly. Q. But for a substantial period of time you actually shared a place of residence with her? A. On and off, yeah. Q. It is the case, is it not, that from time to time you can ameliorate your behaviour to sustain a relationship? A. I am not sure. Q. You are not a cranky bloke all the time, are you? A. No - I can be. Q. You are able to rein in your temper from time to time, aren't you? A. Not always, no." 185 Mr Barrett went on to ask Mr Caldwell about his claim for sexual dysfunction arising from the subject accident and suggested that he had a problem with sexual performance prior to the accident, to which Mr Caldwell replied, "I'm not sure", and to a subsequent question, "I don't know". He also said that he was not sure whether he was receiving treatment before the accident in relation to his sexual performance and could not shed any light on an entry by Dr Williams, Psychiatrist, for 18 January 1994, which was shown to him. 186 As to the extent he rode a motorcycle after the accident, there was the following exchange with Mr Barrett: "Q. In so far as you may have told any health professional that you didn't drive your motor bike after the accident, that is incorrect, isn't it? A. I haven't said that to any of them, I don't think, not unless I didn't have a bike at the time. Q. Not unless? A. I didn't have the bike at the time. Q. Dr Morse records that you indicated to him that you used to ride a motorbike but you had done this on only one occasion since the accident - this is at December 1999. That is not true, is it, you had ridden your bike on much more than one occasion since the date of the accident by December 1999? A. I am not sure, I don't think - I don't know. I don't know when I bought my bike after the accident. I didn't get paid out for a long time afterwards so I'm not sure. Q. You told Dr De Burgh Norman that you hadn't ridden your motorcycle at all since the date of the accident and you saw him in February 2000. A. I don't know, I can't remember. Q. If that is what you told Dr De Burgh Norman, that is an incorrect statement, isn't it? A. I don't think I would have. If I had a bike at the time I wouldn't have told him that. Q. You told Dr De Burgh Norman when you saw him in February 2000 that you hadn't driven a car since the date of the accident? A. I'm not sure what I said to him. I don't know, I couldn't tell you. Q. If that is what you told Dr De Burgh Norman, that is an incorrect statement, isn't it? A. I don't know what I told him. Q. It is the case, isn't it, that by February 2000 you were riding motorbikes? A. I would say so. I don't know. Q. Driving cars? A. I'm not sure. I could have been. I don't know. Q. You told Dr Lorentz in July 2000 that you couldn't ride your motorbike. Do you recall telling him that? A. No. Q. If you told that to Dr Lorentz in July 2000, that would be an incorrect statement, wouldn't it? A. Probably. I don't know what I told him. It could have been after an operation where I couldn't ride, I don't know." 187 Mr Barrett pressed Mr Caldwell upon his evidence as to his use of marijuana after the accident and his claim that about 2 years ago, he ceased using it altogether. There were these questions and answers: Q. You indicated to his Honour that you had ceased using marijuana in the last 18 months to two years? A. Yes. Q. From yesterday's date? A. Something like that, I'm not sure exactly when, but something like that. Q. You also indicated that your use of marijuana tapered off over time from the accident to when you ceased using it completely? A. Yes. Q. But certainly you were using marijuana still in December 2002? A. Occasionally, yeah. Q. And you had used it even more frequently in the year 2000 than in December 2002? A. I don't know about that, a few times a week. Q. You told Dr Buckley when you saw him at the request of your solicitors in February 2000 that you were not using any drugs? A. I don't know. I don't know what I told him. I don't remember. Q. If you told that to Dr Buckley, it was untrue at that time? A. I don't remember what I said to him. Q. And you did the same in December 2002, you told him that you were not using any drugs? A. I might have done. I don't know. Q. You say you might have done. Why would you have done it? That is untrue, isn't it? A. I don't remember what I said to him. I don't really remember seeing him. Q. Certainly from what you told us yesterday, you were still using marijuana at September 2002, that is right, isn't it? A. Probably, yeah. Could have. Q. But you told Dr Batchelor when you saw her that you had ceased using marijuana at that time? A. I'm not sure. Q. If you told Dr Batchelor at September 2002 that you had not used marijuana for several years, that would be untrue, wouldn't it? A. Yeah, probably." 188 In answer to a question, by Mr Barrett, Mr Caldwell agreed that his memory for past events is very poor and that it has been since the day of the accident. Mr Barrett suggested that his memory before the accident was not particularly good either, and Mr Caldwell replied, "I wouldn't say that". 189 He also denied Mr Barrett's proposition that for the last few years he has been able to carry out the activities of daily living completely independent of assistance from anybody else. When it was put to him that this was contrary to what he told Dr Buckley in October 2002, he replied, "I don't know what I told Dr Buckley, couldn't tell you", and went on to deny that he had been totally independent in October 2002. 190 Asked whether he now takes any physical exercise, Mr Caldwell said that he is unable to "work out" and that his only exercise is walking to his letter box and back, about twice a week, the distance to the letter box being, he said, a quarter of a mile. In reply to Mr Barrett's question, "You have not made any attempt since you ceased smoking marijuana to see whether you could do any clerical work, have you?", he replied, "I can't remember. I don't think so. I am not sure". 191 In re-examination, Mr McIwaine asked Mr Caldwell about the likely consequences to his employment of losing his driver's licence after the accident, if he had still been in employment in his parent's business. He said that there were other duties he could have performed as an offsider which would have been available. Finally, Mr McIwaine re-examined Mr Caldwell about him ceasing to smoke marijuana. He said that he had no difficulty in refraining from using marijuana over the past 18 months but that this had not produced any noticeable improvement in his memory or his ability to process information. EVIDENCE OF LOUISE CALDWELL: 192 Mr Caldwell's mother Louise Caldwell gave evidence in support of his case. She said that she and her husband conduct a business known as Caldwell Waste Services, which they have operated for many years. 193 She said that after he left school, Mr Caldwell had several jobs for brief periods and then started to work in the family business, initially as an offsider on the garbage truck. She said he had an accident in 1990, which kept him out of work for about 18 months, but he then returned to work until the date of the subject accident. 194 According to the wage records of the business, she said that he worked the five days preceding the week-end on which he was injured and the five days in the previous week. She confirmed, however, that he was paid by the hour and that his hours varied. 195 After the accident, she said that her husband took over a lot of the duties that her son had been performing until the extra burden started to affect his health. At that stage, their other son, Mark, returned to work in the business. According to her testimony, Mark performed the work her husband had been performing prior to the accident and her husband took over Garry's work. 196 She said that it had been the intention within the family that Garry would take over management of the business when her husband retired and that this management role was, in fact, assumed by Mark in mid-1998 and continued until Mark left the business at the end of last year, following a dispute with his father. Mrs Caldwell provided no assessment of Mr Caldwell's capacity to manage the business prior to the accident and neither her husband nor son Mark gave evidence. 197 In the period immediately before the accident, Mrs Caldwell said that there appeared to be nothing unusual about Garry's behaviour. She first saw him after the accident in Royal North Shore Hospital where he remained until 3 November 1997, when he was transferred to the Royal Ryde Rehabilitation Centre. He stayed there until 13 November 1997. Whilst he was at Royal North Shore Hospital, she visited him everyday, spending at least an hour per day with him and travelling to and from Galston for the purpose, travelling time from Galston being about 1 hour. While at the hospital, she would go for walks with her son and she would buy anything he needed at the hospital shop. 198 After the transfer to Royal Ryde Rehabilitation Centre, Mrs Caldwell continued to visit daily, again spending about an hour with him, each day. She followed much the same procedure as when he was in hospital, that is, she took him outside for a walk and purchased for him anything he needed. Sometimes she would take toiletries or special food etc. 199 She said that after he returned home on 13 November, he came to live in the main house and remained there until mid 1998. For the first part of this period, she had to help him dry himself after showering, she had to assist him to dress and she had to dress his wounds twice a day. The dressing of wounds continued for at least a month in respect of his wrist and for about 2 months with his leg. She said that the leg was very difficult because of the external fixatures. Dressing of the wounds took at least half an hour. 200 Initially, on coming home, he was in a wheelchair but after about a month or six weeks he graduated to crutches. 201 For the whole of the period, approaching 3 months, that Mr Caldwell was either in a wheel chair or on crutches, Mrs Caldwell said she had to assist in his showering, in washing his hair, in drying him after his shower and in cooking his meals (although he usually ate his evening meal with the rest of the family), in washing and ironing his clothes, including bed linen etc, in taking him to doctors and in obtaining prescribed medications from a pharmacy. During meals, she had to cut his food. 202 She calculated that for about 6 months she spent between 20 and 30 hours a week in performing for her son, tasks which had he not been injured, he would have performed for himself or which would not have been necessary. 203 Her evidence was that he left home to live with his girlfriend in a unit in Kings Cross in mid-1998, but not on a full-time basis. She said that he usually left home on a Friday and returned Monday night. She said that this arrangement continued until about August 1999 when he returned home in anticipation of surgery being performed upon his leg. Throughout this period when he was home, she continued to cook his evening meals and clean his room. By then, however, he had returned to the flat in the garage where he had lived prior to the accident. 204 Mrs Caldwell said that she continued to wash and iron her son's clothes and do his shopping. In the period from mid-1998 until August 1999, she estimated that this involved about 5 hours per week. 205 When he returned home after hospitalisation in 1999, Mr Caldwell, once more, needed crutches. Mrs Caldwell said that he was on crutches for at least 4 weeks, perhaps longer and during that period she was obliged to increase her level of care for him. For a time she said she was once more providing domestic assistance of the order of 20 to 30 hours per week. 206 Mrs Caldwell said that when her son no longer needed crutches, he stayed at home for a short time and then resumed his practice of spending weekends with his girl friend at Kings Cross, although there were some weeks when he stayed at home for the whole week and some weeks when he remained away for the whole week. This lasted until about the end of 1999 when he resumed living in his flat in the garage full-time. The level of assistance she provided by that stage was about 5 hours a week and it diminished with the passage of time, although she claims that she still provides domestic assistance of the order of 5 hours per week. 207 At one stage, her son moved from the flat in the garage to a mobile home or caravan on the property where he presently lives. This was previously occupied by her daughter and son-in law, who had moved to Mudgee. She thought that this probably occurred towards the end of 2000. 208 Since her son moved into the mobile home, Mrs Caldwell said that Mark mows the lawn around it. She said that she still takes Mr Caldwell to medical appointments. 209 Cross-examined by Mr Renshaw, as to the time presently taken to perform domestic services for her son, Mrs Caldwell said it takes about half an hour to vacuum carpets in the mobile home; that his washing usually involves 2 loads in the machine, that hanging it on the clothes line takes less than half an hour and that he usually shares an evening meal with the family. Pressed by Mr Renshaw, she agreed that the cleaning and washing, which she now does, would not occupy more that two hours per week and that this has been the position since he moved into the mobile home, about 4 years ago. 210 She also agreed with Mr Renshaw that her estimates of providing 20 to 30 hours of domestic services per week in the periods immediately following her son's discharge from hospital may have been overstated. She conceded that, "up to a point", it is very hard now to put a precise figure upon the time involved. 211 Mrs Caldwell said that she was aware that Garry, commenced to smoke marijuana and she thought this occurred when he was 17 or 18. She said that as far as she is aware, he has continued this up to the present day. She was unhappy about his involvement with marijuana and spoke to him from time to time about it, apparently without success. 212 She said that she was not aware that her son was taking the illegal drug methylamphetamine before the accident and had only begun to suspect his involvement in "the last couple of years", her suspicions deriving from his manner – "He was sort of very hyper and twitching, jerking, that type of thing". 213 Mrs Caldwell told Mr Barrett that before the accident Mr Caldwell had very little interest in the clerical side of the business, but did work in the office for short periods as she and her husband wanted him to understand each aspect of the business. She agreed that he always preferred working outdoors and, in effect, that he was not interested in paper work. There was the following exchange with Mr Barrett: "Q. What you were looking for in relation to Garry was taking over the role that your husband performed? A. Yes. Q. And you had no real expectation that Garry would move into being able to handle that side of the business that you performed? A. Not really, no. Q. And that was because he simply didn't show an inclination to want to be able to do that sort of work. A. Yes. Q. In saying that, you don't say to His Honour that he has no capacity to do that, do you? A. No, he is capable. 214 Apart from this evidence in relation to the period before the accident, Mrs Caldwell gave evidence of her attempts to involve her son in the paper work side of the business, after the accident. She said that he tried but was frustrated, "because he wasn't comfortable doing it". Nevertheless, he apparently tried office work for about a month during which time, according to Mrs Caldwell, he made "some progress but not a lot". She seemed to think that he was not able to progress further. 215 In the re-examination of Mrs Caldwell by Mr McIlwaine, she said that her estimate of presently performing domestic services of 5 hours per week, included taking her son shopping for his heavy groceries, once a week. This was something she had not mentioned before. She said that they go to Dural shopping centre and, with travelling times it takes about one and a half hours. She said that this shopping is done separately from the shopping of other members of the family. She also said that she included in her five hours per week estimate, time spent paying her son's bills and generally looking after his day to day domestic paperwork. 216 In answer to a question by me, Mrs Caldwell said that the reason her son is unable to do his own shopping is that he is cannot carry anything heavy. 217 I gave Mr Renshaw leave to further cross-examine Mrs Caldwell concerning the time spent each week in shopping with Mr Caldwell. She said that he buys provisions for the two meals a day which he prepares for himself and also for his animals, which comprise three dogs and two cats. He also buys soft drinks, toiletries etc. Mrs Caldwell explained that she could not help her son with his shopping at the same time as she does her ordinary shopping because she does this with her two elderly parents-in-law, one in a walker and the other on a walking stick. She said that they need considerable assistance and that it would be beyond her to cope with them whilst at the same time assisting Garry. She agreed with Mr Renshaw that the only reason she needs to shop separately with Mr Caldwell is because of what she does for her parents-in –law whom she has only been assisting for the past 12 months. MY ASSESSMENT OF THE CREDIBILITY OF MR CALDWELL and HIS MOTHER: 218 Mr Caldwell was, in my opinion, an unimpressive witness and I regard much of his evidence as unreliable. He presented as having a very poor memory, which, of course, he claims as one of the sequelae of the subject accident. However, I formed the opinion, that in some respects his memory was somewhat selective and that he was doing considerably less than his best to assist the court. There was also, I think, a degree of unreliability in the information he conveyed to examining doctors. 219 Mrs Caldwell, in my view, was an honest witness, although I think there was some exaggeration, perhaps unconscious, as to the extent to which, since the accident, she has gratuitously performed domestic services for her son. Certainly, I accept that he needed a good deal of assistance from her in the few months immediately following his discharge from the Rehabilitation Centre, even though it recorded on the Discharge Status Report that he was "independent with activities of daily living" and "independent in all self-care tasks". He also had a need for her assistance in periods following subsequent surgical procedures. However, I do not accept that since he moved into the mobile home on the property in 2000, he has had an accident related need for her services to anything like the extent she suggested. In saying this I recognise that as a mother she may well, out of love and affection for her son, have gratuitously performed services, which were strictly beyond his needs. I do not, for instance, accept that Mr Caldwell is so incapacitated as to be unable to do his own weekly shopping, even if this require him to shop more frequently or make more than one trip with his purchases from the shops to his car or motorcycle. He has after all plenty of time on his hands. MR CALDWELL'S MEDICAL EVIDENCE: 220 The physical injuries claimed to have been suffered by Mr Caldwell in the accident, his early treatment and the immediate sequelae are conveniently summarised by Orthopaedic Surgeon, Dr J S Scougall, in his report of 26 February 1998 as follows: "He was admitted to Royal North Shore Hospital where he was seen to have sustained the following injuries: 1. A closed comminuted fracture of the mid shaft of his right femur. 2. A comminuted fracture of his right kneecap, with wide separation of the fragments. 3 An open comminuted fracture of both bones of his distal right dominant forearm involving the wrist joint. There were fractures of the distal radius and ulna styloid with marked anterior displacement. 4. A fractured nose, facial and lip lacerations and damage to the left front central incisor tooth. 5. A complete left musculocutaneous nerve injury. This nerve arises from the cervical nerve plexus and supplies the flexor muscles of the elbow and provides cutaneous sensation along the radial side of the forearm. He presumably had a severe stretching injury of that nerve, which is at the upper part of the brachial plexus, this stretching injury being probably caused by severe lateral flexion of his head and neck and downward displacement of the left shoulder at the time of the injury. 6. A head injury with loss of consciousness as mentioned. (Note, according to ambulance report and hospital admission notes conscious and alert) 7. A soft tissue injury to his low back. Radiological examinations of the pelvis, right humerus and elbow and cervical spine are reported on as showing no evidence of fractures in those areas. After assessment on the day of his admission to hospital, the fractured right femur was treated by internal fixation with an intramedullary nail and proximal and distal locking screws. His right knee cap fracture was treated by open reduction and internal fixation with tension band wiring. His fractured nose was reduced and his facial lacerations sutured. The compound right wrist injury was treated initially with an external fixateur and, on 16 October 1997, by open reduction and internal fixation with a buttress plate and Kirschner wires to the radius and Kirschner wires and tension band wiring to the distal ulna fracture. This wound was later complicated by infection, requiring prolonged antibiotic treatment which appears to have controlled that infection. He was transferred to the Royal Rehabilitation Centre Sydney at Ryde on 3 November 1997 and discharged from that place on 13 November 1997, being in hospital for a total of 5 and a half weeks. He had required intensive treatment for his multiple injuries whilst an in-patient. He was discharged, in a wheelchair, non weight bearing on his right wrist and with impaired movement and power in his left arm, to the care of his parents at their home in Galston. He was wearing a Zimmer splint on his left leg. He remained in that wheelchair for 2 months, being unable to use crutches due to his arm injuries. He was house-bound during that time. At about 2 months he was transferred to an elbow gutter crutch on the right side and an elbow crutch on the left side. When seen by me, that being about 4 months after the accident, he was walking with an elbow crutch on the left side to protect his right leg though he told me that when he has to walk for longer than 200metres, he still requires 2 crutches 221 When seen by Dr Scougall on 25 February 1998, Mr Caldwell complained of the following symptoms: "He has significant symptoms in his right leg and in his right wrist, in his low back and weakness and numbness in his left arm. The pain in his right leg is felt on the outer side of his hip, at the upper end of the internal fixation device. He is unable to sleep on that side. Pain is present nearly all the time. It varies from mild to severe and he will have some pain every day, though the pain is severe now only every few days. He takes Endone tablets, up to 2 a day. If he has a quiet day, pain is less troublesome. He is unable to squat or kneel. He walks with a limp. He requires crutches, as mentioned. He occasionally walks for short distances in his own home without crutches. He has pain on the ulnar side of the right wrist and stiffness in that wrist and in the forearm. He is very restricted in all activities involving use of his right hand. Back pain is felt in the middle of his back. It is present most of the time. It can, on occasions, be quite severe. It is made worse by travelling in a car, by sitting or standing for even a relatively short period of time and he avoids bending and lifting. He also has pain behind his right shoulder which may be due to a neck injury or to an injury to his right shoulder. He complains of inability to initiate flexion from the extended position of his left elbow. He has weakness of that arm and is able to do only light carrying. He has numbness on the medial side of the left upper arm and along the radial side of the left forearm. He is unable to flex his elbow from a fully extended position when carrying anything more than a lightweight in his left hand. Once he has initiated flexion, beyond 10-15 degrees, the power of flexion of his elbow is improved but still not normal. He complains also of left and right shoulder pain and stiffness of his shoulders." 222 Dr Scougall reviewed Mr Caldwell in December 1999 and recorded, "He is now living with his girlfriend in a 2 bedroom flat in the city, though most of his possessions are still at his parent's place. His girlfriend does most of the cleaning. He does some simple light tasks. He puts his clothes away, he helps with the washing up. He walks to and from the shop with her, a 100 metre walk, each way. As regards his ability to walk, he can walk, he believes for up to about a kilometre before pain in his back and right knee would force him to have a rest before he continued. He is able to do his share of the cooking ……………….. He is able to manage public transport". 223 Dr Scougall reviewed him again, so the evidence before me reveals, for the last time on 24 August 2000. In his report of the next day, he expressed this opinion: "I believe that Garry Caldwell's lesions have now stabilised. Although he may require further surgery for his right wrist, I believe it is unlikely that any lessening of disability that he has in that hand will occur in the future. In regard to his right arm, he has fairly constant pain in the region of the wrist. He has limited wrist movement and he has difficulty performing all activities with that hand that require normal physical strength. That wrist and hand also tire easily in repetitive activities. He has disruption of the articular surface of the distal end of the radius and he is a definite candidate to develop increasing osteoarthritic changes in that wrist and possibly in the long term future may require a wrist arthrodesis. An estimate costing for the procedure is attached. As regards his left arm, he has pain in the elbow on all activities when the left arm is used. He also has an annoying area of numbness with pins and needles on the radial side of that forearm. Manual dexterity however in his left hand, as well as in his right, is good. He also has neck and back pain, the latter in particular causing him some functional disability. The disabilities as outlined in both those area will remain permanently in the future. He will always be limited in his ability to do work requiring repeated bending and moderate or heavier lifting. As regards his right leg, he has right knee pain that is aggravated on all right leg loading activities. Over the years he will develop increasing osteoarthritic changes on the back of his kneecap. He has slightly increased antero-posterior mobility in his right knee as compared with his left. It is probable I believe that in the long term future he will develop increasing osteoarthritic changes in the right knee and they will be a cause for permanency of his symptoms in that area. He may wish to proceed to have the muscle hernia in his right shin repaired, though I believe that his leg function would not be improved by that procedure. He had had a significant head injury. The effect of the head injury and the prognosis for that injury is not in my field of expertise. Regarding his fitness for work, I believe that he is unfit for his pre-injury work. He is unfit for work as a labourer where that work involved moderate or heavy physical use of his arms and of his right leg. He has attempted clerical work since the accident. He had found that he was unable to do that work. He may be suitable for a rehabilitation programme. His level of recovery I believe has stabilised in that his present symptoms and disabilities will remain at their present level into the foreseeable future. It seems unlikely to me that he will be able to be employed gainfully." 224 In relation to his right wrist, Mr Caldwell came under the care of Dr Anthony Beard, of Sydney Hand Surgery Associates. In the first of 5 reports provided by Dr Beard, namely, a report dated 29 December 1997, he said, in relation to Mr Caldwell's right wrist: "The injury to his right wrist required a closed reduction which was performed on the day of the injury. He was taken to theatre under my care on 16.10.97 and had an open reduction and internal fixation, as well as adjustment of the external fixateur. He developed an infection around these prostheses and had antibiotic therapy of this infection. He was reviewed through the clinic at Royal North Shore Hospital, and on 27.11.97 the external fixateur and two K-wires were removed. He will require a significant amount of physiotherapy to increase the mobilisation of his wrist and to regain its strength. He will also require continued antibiotic treatment to reduce the problems with his infection. He may well require further surgery to improve the position of the fracture as currently the position is sub-optimal with shortening of the distal radius, increased angulation and persistent volar angulation. The prognosis generally is poor. He has a significant intra-articular fracture with residual loss of position. He will require a large amount of physiotherapy to increase his hand function and may well require further surgery to improve the position of the distal radius, and may ultimately require a fusion of his wrist. 225 On 17 August 1999, according to Dr Beard's report of the following day, Mr Caldwell was admitted to North Shore Private Hospital, where he underwent removal of the GK nail from his right femur and a corrective osteotomy of his distal radius. 226 In June 2001, at Royal North Shore Hospital, Mr Caldwell underwent, at the hands of Dr Beard, bone grafting and application of bone morphogenic to the osteotomy of his right distal radius. Apparently, at the same time, Dr Stephen Ruff performed a procedure to repair the hernia at the vola aspect of his right leg. 227 Dr Beard's most recent report was dated 6 April 2005, following a review of Mr Caldwell that day. In his report to Mr Caldwell's General Practitioner, Dr Greg Roberts, which dealt, not only with Mr Caldwell's right wrist, Dr Beard said: "I reviewed Mr Caldwell today. He continues to have problems with his right wrist and his right knee. Pleasingly, his left elbow flexion has become quite strong, primarily through brachioradialis, but he does have definite power in his biceps and strong supination, as well as elbow flexion. The right wrist range of motion is minimally changed from when previously assessed. He describes problems with cold weather and with lifting heavy objects. It aches a bit and requires occasional Panadeine Fort. Mr Caldwell also has significant problems with his right knee. This prevents him walking more than a few hundred metres. He feels that his knee aches a lot of the time and can ache any time of the day although, at this stage it is not waking him at night. His right tibia, the site of his hernia, is still somewhat uneven and both legs are itchy a lot of the time. Unfortunately, Mr Caldwell has been unable to work since the accident on the basis of both his knee and his wrist. I have warned him that in the future he may have problems with osteoarthritis affecting both the wrist and the knee. In the wrist, this may eventually require an arthroscopy and debridement and then possibly even a wrist arthrodesis. The knee is progressively deteriorating and is likely to come to intervention sooner, most likely in the form of an arthroscopy initially, followed by a total knee replacement. In an active young person, I would be concerned that a total knee replacement may last only 10 years and that he is likely to require more than one revision over his lifetime." 228 The injuries to Mr Caldwell's teeth were treated by Dr Rodney Mitchell, Visiting Dental Officer to Royal Rehabilitation Centre Ryde, who first saw him on 4 December 1997. Dr Mitchell reported on 27 April 1998: "On examination it was noted that several anterior teeth had been broken or fractured. The upper left central tooth had a severely cracked crown and required a root canal therapy and a new crown. The upper right lateral was broken and the retained root was surgically removed. The upper left wisdom tooth was fractured and that was removed and the upper right wisdom tooth was also fractured and that too was removed. I decided to refer Garry for an implant to replace the upper right lateral tooth as this was the prosthesis of choice in this situation, but whilst this was being constructed I have made him a temporary plastic partial upper denture for aesthetic purposes. The lower right six tooth was also fractured distally and that was restored. During the construction of the implant by Dr David Sykes in association with Dr Alastair Stevenson, the upper right central will be moved orthodontically about 3mm. mesially to compensate for the distal drift associated with the loss of the upper right lateral tooth. Approximate cost of this treatment is $100.00. This has not yet been added to the account, as treatment is pending. I think that future treatment will be minimal except for regular visits in relation to the implant and therefore prognosis will be good as long as Garry maintains proper dental hygiene and care. I don't anticipate future expenses with Garry except for the fact that the upper left central, having been so badly fractured, may in several years deteriorate in which case another implant would be required." 229 Further dental treatment was performed by Dr Mitchell in April 2002 when Mr Caldwell presented with pain in his front tooth, which had become dark. The tooth was root treated and required a porcelain veneer to restore its colour. Ultimately, as it appears, two teeth were crowned and on the evidence, it may be inferred that the need for this treatment arose directly from the subject accident. 230 In October 2000, Mr Caldwell was referred by his solicitors to Dr Peter Haertsch, who according to his letterhead practices in the fields of plastic surgery, surgery of the hand, reassignment surgery and burn surgery. Mr Caldwell complained to Dr Haertsch that "he is not happy with the scarring of his face and has grown a beard to hide the facial scars". On examination, Dr Haertsch found: "This reveals virtually imperceptible scarring of his right upper lid. He has some minor scarring of his right cheek and of the right nasolabial fold. These scars are 1cm in length, white in colour, slightly depressed and could be improved by surgical revision. I found it extremely difficult to find any scarring within his beard itself. There was a palpable retained foreign body in the left nasolabial fold. There was a 22cm long surgical scar over the anterior aspect of his left shoulder extending onto his arm. It was soft, flat white, non tender and not adherent to the underlying structures. There is an 8cm long scar over the volar aspect of the right wrist. It is slightly indurated and red in colour but otherwise non tender to palpation and not adherent to the underlying structures. There are multiple punctate scars over the dorsum of the right wrist representing healed fixateur pin tracks. These scars were soft, flat, white, non tender and not adherent to the underlying structures. There was obvious deformity of the right wrist with prominence of the right ulnar head. There was diminished movement of the right wrist. Pronation and supination are restricted to 45 degrees each compared to 90 on the left. Flexion of his right wrist is 30 degrees compared to 70 on the left. Extension of the right wrist is 40 degrees on the right compared to 80 on the left. L Ulnar deviation is 30 degrees on the right compared to 50 on the left and radial deviation is 15 on the right compared to 30 on the left. Power grip in the right hand is 20kgs force compared to 50 on the left. Over the right hip there is a 6cm long oblique surgical scar which is soft, flat, white, non tender and not adherent to the underlying structures. Below it and on the upper part of the right thigh there is a 14cm long surgical scar which is soft, flat, white non tender and not adherent to the underlying structures. Over the left hip there is an oblique surgical scar 7cms in length. It is soft, flat, white, non tender and not adherent to the underlying structures. Over the anterior aspect of the right patella there is a 16cm long curvilinear surgical scar, which is soft, flat, white, non tender and not adherent to the underlying structures. To the lateral aspect of the lower end of the scar there is a well healed pin track scar which is soft, white, flat, non tender and not adherent to the underlying structures. Over the posterior aspect of the right leg extending from the popliteal fossa to the heel there is a 37cm long surgical scar which is pigmented in colour but otherwise soft, non tender and not adherent to the underlying structures. There is loss of sensation in the distribution of the right sural nerve on the lateral aspect of the right foot." 231 Dr Haertsch concluded that surgical intervention would not substantially improve the bulk of the scarring, however, he opined that the scars on the right side of his face and the retained foreign body could be removed, at a total cost of about $1,084.00. He assessed permanent scarring, causing disfigurement, as being in the vicinity of 30% of the most severe case of severe bodily disfigurement. 232 Much evidence was devoted to Mr Caldwell's claim that, as a consequence of the accident, he suffered damage to his cognitive functioning. It is convenient to commence a consideration of this aspect of the matter with the reports and evidence of Dr Jennifer Batchelor, Clinical Neuro-Psychologist. In her report of 25 January 2000, to Mr Caldwell's solicitors, after some formal comments she said: "History The following information was obtained from the documents forwarded by your office as well as from interviews that were conducted with Mr Caldwell, his mother and his girlfriend (Carla) as part of the assessment. Mr Caldwell was injured on 12th October 1997, after being involved in a motor cycle accident. He was taken to Royal North Shore Hospital and on admission was alert with a Glasgow Coma Scale (GSC) score of 15 out of a possible 15 points. His injuries included a fracture of the shaft of the right femur, a fracture of the right distal radius, a fracture of the nasal bone and facial laceration. A CT scan of the brain, dated 12th October 1997, revealed asymmetry of the lateral ventricles (with the right being larger than the left) which was thought to be due to an anatomical variant. The following day he was noted to be drowsy with a SCS score of 13-14/15. A repeat scan, conducted on 13th October, 1997, revealed some subtle effacement of the cerebral sulci superiorly with minor loss of the grey/white matter differentiation consistent with cerebral oedema and a large right parietal scalp haematoma. Nursing and rehabilitation reports dated on and just prior to 20th October 1997 contain reference to inappropriate behaviour. On 13th (sic) November 1997, Mr Caldwell was transferred to Royal Ryde Rehabilitation Centre. He was reported to complain of some memory impairment. He was discharged from that centre on 13 November 1997. On interview Mr Caldwell reported the following. He has no recollection of the accident itself. His last clear memory prior to the event is of his pillion passenger closing the gate to his house. He estimates that the accident would have occurred within 10km of that site. His next memory is of "waking" in hospital approximately 1.5 weeks later. I note that this description of post-traumatic amnesia is consistent with that documented by Dr L Hunt of Royal Ryde Rehabilitation Hospital in his report of 12th November 1997. Comment: The information detailed above suggests that Mr Caldwell was rendered amnesic as a result of the accident and that he did not regain continuous memory (i.e. that he remained in a state of post traumatic amnesia) for at least one week following the event. The duration of the post-traumatic amnesic interval is generally considered the best measure of head injury severity and the most accurate index of the likelihood of residual cognitive and behavioural sequelae (Shore, 1989; Wilson, Teasdale, Hadley, Wiedmann and Lang, 1993; Haslam, Batchelor, Fearnside, Haslam, Hawkins and Kenway, 1994). According to conventional criteria, a post-traumatic amnesia of between one and four weeks duration should be considered indicative of a very severe head injury (Jennett and Teasdale,1981) 233 Under the heading presentation, Dr Batchelor said: "As indicated above, Mr Caldwell was accompanied to the appointment by his mother and his girlfriend. He presented as alert and oriented. His language appeared to be intact on a conversational level. He was able to provide a clear and coherent account of his medical educational and occupational background that impressed as internally consistent and unembellished. Similarly, he was fully cooperative throughout the testing session and appeared to be working to the best of his abilities. The results were therefore thought to represent an accurate index of his current level of functioning. Mr Caldwell was asked whether and, if so, how he considered his thinking and behaviour had been affected by the accident. He identified the following concerns. His memory is poorer than it was prior to the accident and he now forgets information that he is told and items that he has been requested to purchase while shopping. He is very short-tempered and irritable and this is causing major problems in his relationship with his girlfriend. He suffers headaches weekly and migraines approximately monthly. This was not the case prior to the accident. He is in constant pain and for this reason "can't do anything I used to do". Mr Caldwell's mother and girlfriend were present during the initial interview. They agreed with his description of change. I subsequently spoke to his mother alone. She confirmed that he was more forgetful than he had been prior to the accident. She emphasised the fact the "personality changes" that had occurred since the time of the accident were quite marked and described her son as much more explosive in his temper than he had been prior to the event." 234 After administering a number of tests, Dr Batchelor expressed this opinion: "Mr Caldwell sustained a significant head injury as a result of the accident that occurred on 12 October 1997. He now complains of a number of changes including poor memory and a shortness of temper. His mother and girlfriend are also of the opinion that his memory and temperament were affected following the accident. The results of the current assessment revealed Mr Caldwell to be of low average IQ. Against this background he demonstrated specific difficulties on tests of recent memory and speed of information processing. There is a large body of literature indicating that deficits of this nature are characteristic of the head injured population. Impairments of the same kind have, however, been reported to often be evident in those using marijuana on a regular basis. The information provided by his mother and girlfriend is of relevance to the issue of the etiology of his cognitive deficits. They both report there to have been a significant change in his cognition and behaviour following the accident. Given the severity of the head injury that he sustained it is very likely that this has at least contributed to the cognitive deficits seen on testing. As stated above, it is difficult to know at exactly what level he would have been functioning prior to the accident given his history of regular marijuana use. Thus, whilst it is likely that the head injury has had an adverse effect on his cognition, it is difficult to provide precise quantification of the degree of permanent impairment resulting from that injury." 235 Dr Batchelor re-assessed Mr Caldwell in September 2002, when she again administered a number of tests. 236 Comparing her findings in January 2000 with her findings at the 2002 assessment, Dr Batchelor said: "I initially examined Mr Caldwell on 19 January 2000. At that stage he demonstrated specific difficulties on test of recent memory and speed of information processing. It was concluded that whilst it was likely that the head injury had adversely affected his cognition, it was difficult to provide precise quantification of the degree of permanent impairment resulting from that injury given that he was using marijuana on a regular basis. At the time of the current assessment Mr Caldwell reported that he had not used marijuana for several years. Nevertheless, he demonstrated very significant difficulties on test of recent memory and speed of information processing. During the current assessment the extent of his memory deficits could be more accurately detailed as Australian norms are now available that enable the comparison of predicted and obtained scores. The impairments evident on testing were well in excess of those that could be attributed to marijuana use in the past. The possibility that these deficits were due to either a deliberate attempt to exaggerate disability or emotional distress was evaluated. The results were not in keeping with either of these hypotheses. There is a large body of literature indicating that impairments of recent memory and speed of information processing represent extremely common corollaries of severe head injury. It is concluded that the head injury incurred in 1997 has had a severe, adverse effect on these aspects of his cognition. Given the number of years that have elapsed since the injury it may be concluded that these deficits represent permanent impairments. Medical opinion is that Mr Caldwell is no longer fit for heavy manual work. His cognitive deficits are certainly sufficient to render retraining difficult. He has marked difficulty in learning and retaining new information. Thus, he would take considerably longer than most to learn the requirements of any new position. He is likely to forget changes that are introduced to any given routine. He is much slower than most to complete even simple tasks. It is concluded that, at best, his employment options would now be extremely limited. In my opinion his cognitive deficits are over and above those that any employer could realistically be expected to accommodate." 237 Dr Batchelor gave oral evidence and was cross-examined. She agreed with Mr Renshaw that there are a number of factors which go to the establishment of brain damage and that the most traditionally used is the Glasgow Coma Scale, adding that the literature suggested that this should be supplemented with measures of post-traumatic amnesia. She acknowledged that, on admission to hospital Mr Caldwell had a perfect Glasgow Coma Scale score, and acknowledged that the subsequent partial reduction of this score could have been attributed to analgesia, including morphine. 238 She would not, however, agree with the proposition that a post-traumatic amnesia of two weeks is very infrequently found with an initial Glasgow Coma Scale of 15 out of 15, relying upon her clinical experience with head injury patients who are alert and oriented when admitted to hospital. She agreed that cerebral oedema, or swelling is not diagnostic of long term brain damage and that the radiology, referred to in her first report, was not determinative or diagnostic of brain damage. 239 Dr Batchelor said that the source of her conclusion that Mr Caldwell had post-traumatic amnesia, was Mr Caldwell himself and agreed that the hospital notes made no reference to any assessment of post-traumatic amnesia. She added, "It is not uncommonly the case with patients that have significant orthopaedic injuries, who are admitted under an orthopaedic specialist, they are unfortunately not monitored for post-traumatic amnesia, particularly if they have had a high Glasgow Coma Scale score". 240 Mr Renshaw suggested that this was unlikely in a hospital such as the Royal North Shore Hospital, which included Neurological Registrars on its staff, and Dr Batchelor responded, "I'm saying it does happen". She conceded that this may have been the case because the clinical specialists who attended upon Mr Caldwell did not regard it as necessary. 241 In answer to Mr Barrett, Dr Batchelor agreed that the only reference in any notes she had seen to post-traumatic amnesia, was the note referred to in her first report of Dr L Hunt at Royal Ryde Rehabilitation Hospital on 12 November 1997. That note was admitted as evidence of what Mr Caldwell told Dr Hunt and not as evidence of any diagnosis by Dr Hunt. 242 She further agreed with Mr Barrett that if the history given to her by Mr Caldwell, prior to writing her second report, that he had ceased using marijuana was untrue, that could affect the conclusions she drew. There was this exchange: "Q. Would it be pushing the situation back to where it was in your first report? A. If the marijuana consumption had been recent and regular, yes, I would be concerned. Q. Would it be the situation that you would be pushed back to where you were in your first report of being unable to determine whether the cause of the recent memory problem was head injury or marijuana use? A. To a degree, and again I referred to recent available literature which would suggest that the impairment of recent memory, processing speed, attention, that you see following marijuana use is not as severe as that which I documented in my report of 2002. Q. But it would certainly have some impact? A. Yes, it would." 243 There was this further exchange between Mr Renshaw and Dr Batchelor in which the subject of Mr Caldwell's marijuana use was introduced: "Q. Well, do you think that he's suffered reduction of intellect or not as a result of his accident? A. I think he's got a specific impairment of speed of information processing, which would have had some slight impact on measures of intellect of far more significance than the degree of memory impairment evident on testing. Q. That could be due to long-term marijuana use, could it, I imagine? A. The literature regarding marijuana use suggests that heavy consumption of marijuana or acute consumption of marijuana can impact on memory, attention, speed of information processing and adaptive abilities. Q. What about long-term usage from an early age? A. Long-term usage, the current literature would suggest that, you know, you're talking about daily use for decades to exert any measurable impact on cognitive function. Q. I suppose that his memory could have been bad before the accident? A. His memory could have been bad before the accident." 244 Acknowledging that she had not seen Mr Caldwell's school reports, there was further questioning by Mr Renshaw: "Q. It's not exactly unknown that, rather than postulating pre-accident intelligence, you can actually discover it by looking at his school reports? A. I've measured his intelligence post accident, and there's no way that his intelligence post accident could be better than his intelligence pre-accident. So I don't need to sight any school reports to know what he's at least capable of in terms of his intellect. Q. No, but any reduction would be shown, if in fact he was-- A. I'm not arguing there has been any significant reduction of his IQ. What I'm arguing is that he's demonstrating a significant impairment of recent memory and a significant impairment of information processing speed, and in fact the best way to predict someone's memory is to measure their IQ, and we have Australian norms in allowing us to predict memory from someone's IQ scores. Q. It's almost invariable in these cases, if they're available, to try to get the school records, isn't it? A. To find out whether the individual had specific problems prior to the accident, or if you get evidence of a markedly reduced IQ, to find out whether there was any evidence of intellectual lowering prior to the accident - were they put in a remedial class, did they require specialised assistance? But when I saw him in 2000 his IQ measured as being in the low average to average range, and I said there was only one weakness that was identified. So I wasn't concerned that his intellect per se had been significantly reduced as a result of the accident. Q. You concluded there is a deficit that is accident caused; is that so? A. In my second report I argue that, yes. Q. In your first report you think it may not be the case? A. In my first report I said it was really difficult because he had a history of marijuana consumption, and so it was difficult to sort out on the basis of the test results alone what was due to the drug use and what was due to the accident. Q. But it's possible that this deficit occurred also before the accident, isn't it? A. It's extremely unlikely. Less than 1 per cent of the Australian population demonstrate a disparity between memory and IQ of the magnitude that this gentleman demonstrates. Q. But one way of finding out very easily would be to have got the school reports? A. Well, according to the information that I had, there was no history of having to repeat any classes or get any specialised assistance. Q. Look, doctor, you've done hundreds of these cases and, so have I. A. Mmm-hmm. Q. It is most unusual not to get the school reports, is it not? A. I don't agree that it's most unusual. I've seen plenty of cases where school reports haven't been available. Q. You never asked for them, did you? A. No, I didn't. Q. You knew that you were examining a person for an allegation of brain damage? A. Mmm-hmm. Q. And you knew that his antecedent cerebration would be a matter in issue? A. Yes. Q. And you knew that the records kept by the Department of Education in respect of pupils in this state for his age group would assist you more probably than not had you accessed them? A. They may have assisted me, but, as I said, you know, we have Australian norms available that enable us to calculate memory scores on the basis of the person's IQ. Now, the disparity that he's demonstrating occurs in less than 1 per cent of the Australian population. Q. All you're saying, doctor, is instead of in fact doing the investigation in proper form by calling for the school reports, you decided to use the statistical norm which oblates any variance; isn't that so? A. I don't think the statistical norms oblate any variance at all. Q. Look, it is exceptionally poor science not to look at the primary documents that would establish whether or not this deficit were present before the accident; is that not so? A. If the deficit was present before the accident, he wouldn't have been capable of schooling in a mainstream system and he wouldn't have been capable of maintaining open employment without assistance." 245 Mr Caldwell's solicitors referred him to Dr Peter Morse, Consultant Psychiatrist, who, in December 1999, took the following history: "He described himself as not too well emotionally and said he has a "heap of problems" in accommodation, financial difficulties, quite marked difficulties in the relationship with his girlfriend because of his temper and sexual problems. He is more angry and irritable, has no patience, easily loses his temper and is far worse than he used to be. He gets angry with people and there are conflicts and difficulties with his girlfriend because of this. He is more anxious and tense in traffic, doesn't like to get on a motorbike. He has not driven recently because of a loss of licence. He is more down and depressed than he was before because of all this. He spoke at length about the difficulties he has in the relationship with his girlfriend because of his temper and described himself as having a "short fuse", easily angry and upset and this has caused quite marked difficulties. He also spoke of the quite marked sexual difficulties he has had since the accident and this has caused problems in the relationship. Concentration and memory is not good, he has difficulty keeping his mind on things. No fits, faints, odd turns or blackouts but when he gets migraine he gets dizzy and very upset. Sleep is disturbed with initial insomnia, getting to sleep at four or five in the morning and only sleeping for about four or five hours. He has lost a lot of weight since the accident. No tremor or shaking. No chest pain, palpitations or trouble breathing. He was referred to a counsellor for anger management but said he didn't get on with the counsellor and only attended on two occasions. He wants to talk to a doctor about his sexual problems and try and control his migraine. He described his self-esteem and self-confidence as "a bit down". 246 Dr Morse recorded that Mr Caldwell had been living with his girlfriend for a year and a half and that, at the time of the accident, he was living with a girlfriend and they broke up because of his state. Under the heading "Mental State and Examination", he said: "He presented as a tall, thin man who was somewhat unkempt. His right arm was in plaster. He was tense and anxious initially but this settled as the interview progressed. He expressed his unhappiness and concern about his physical state, his short temper and concern about his sexual performance. He said he can't do anything he used to, he is worried about his future and said his whole life has been changed. I carried out some cognitive testing. He was orientated in time and place, he could repeat a name and address but made mistakes in three out of seven items three minutes later. He could go up to five digits forward but made mistakes on reversals after four. He made mistakes on reversal of seven digits. He could repeat four out of four items but only three of the four after two minutes. He performed serial subtraction of seven from one hundred slowly initially, making quite gross errors but when he settled down he continued on with two errors but performed the exercise very slowly. He could repeat three phrases immediately but only one of them accurately after three minutes. Other tests of concentration were carried out without any problems. He could repeat only eleven words in a minute from a letter given to him, which is below average for his age and education. He made four mistakes in reproducing simple diagrams but on the whole could reproduce them with a general outline as given. He did a simple tracking exercise without any problems." 247 At the conclusion of his report, Dr Morse voiced this opinion: "Mr Caldwell is suffering on-going physical symptoms and disability. I do not consider emotional or psychological factors are playing any part in the causation, continuation, severity, or type of his physical symptoms and disability. The major emotional problem is a feeling of anger and irritability which he finds difficult to control. This has caused quite marked difficulties in his relationship with others, particularly his girlfriend, with verbal and physical assaults and problems in rental accommodation. He said he is ashamed and doesn't like to talk about what has occurred but he said this is completely different in his personality compared to before the accident and he had a lack of control over his temper and expression of anger. I see this lack of control over temper and his on-going irritability as being due to the combination of direct brain damage caused by the accident, continued pain, discomfort and the frustration due to the pain and restriction on activity and difficulties in his life generally. He is depressed and down because of this, anxious and feels sad and unhappy and I would make a diagnosis of adjustment disorder with depressed mood. He has marked difficulties in the sexual relationship and this appears to be due to a combination of the direct effect of the injury on his physical functioning; a feeling of frustration; his irritability and the general problems in relationships; and perhaps some direct effect due to brain damage. There are also quite marked difficulties in the general relationship because of his irritability and his life situation. I see him as being helped by some form of therapy with counselling, assistance to get control of his anger and perhaps use of medication to help with both the irritability and the depression. As I suggested to him, some cognitive therapy may be helpful. He also may need sexual counselling. If he were to see a Psychiatrist it is suggested he be seen fortnightly for two or three months and monthly for at least a year, the cost between $120 to $160 per session. He is unable to work in his previous occupation because of his physical state. It is unlikely he will be able to find work of a similar kind because of his physical condition. He said he has always been a "physical person" and will have difficulty adjusting to office or clerical work and the combined effect of his physical state and cognitive impairments would make it difficult for him to be involved in any retraining or rehabilitation process. Other activities have been reduced because of his physical and emotional state. The prognosis depends on the progress of his physical symptoms and disability and this has been outlined by others but given the multiple nature of his physical condition, the effect of his cognitive functioning, I see him as continuing to suffer quite marked physical, emotional and other disturbances for many years to come." 248 Finally in the Plaintiff's case, I make reference to the five reports of Dr Stephen Buckley, Consultant Physician in rehabilitation medicine. In the first of those reports dated 28 February 2000, Dr Buckley commented upon the head injury sustained by Mr Caldwell: "With regard to the head injury, Mr Caldwell had a normal Glasgow Coma Score as recorded by the ambulance, but by the time he was admitted to the ward, he had such severe swelling of the face, that the right pupil could not be seen. By the following day, his Glasgow Coma Score was reduced to 13/15 and a CT scan revealed cerebral oedema. On 14th he could not recognise or respond to his parents and was very agitated and upset, according to the nursing records. There was poor cooperation with the treatment team on 17th and on 18th a somewhat violent episode with an Asian nurse is recorded. The file makes it clear that this episode was considered to be a voluntary reaction by Mr Caldwell and some considerable effort was assigned by the patient representative and others to resolve the issue. Nevertheless the terms of the patient record are suggestive of post-traumatic amnesia lasting at least five days and admission notes from the Royal Rehabilitation Centre indicate a suggestion of post traumatic amnesia lasting at least one week. This is the severe range of traumatic brain injury with a moderate statistical risk of long term cognitive and behavioural deficits. Since discharge from hospital, Mr Caldwell has had several further operations including removal of wires from the right patella, refixation of the right wrist by Dr Beard in August of 1999, repeated episodes of dental work and a further operation by Dr Beard for a sural nerve to musculotendinous nerve graft." 249 Dr Buckley noted Mr Caldwell's then current problems: "Mr Caldwell says he has problems with his right wrist and left arm, back pain, right knee pain, poor memory, altered temper control and headaches. Taking each in turn: Right wrist: Mr Caldwell says that he had a recent bone graft operation by Dr Beard and his right wrist is still in plaster. Mr Caldwell said that Dr Beard told him that if this operation failed to produce fusion of the fracture, then arthrodesis would be proceeded to. Arms: Mr Caldwell says that both arms are weak and he has difficulty pouring from a milk carton with the left hand. He has difficulty lifting any weight with aching in the biceps muscle and rapid fatigue. Back pain: Mr Caldwell said that he has an aching back pain and indicated the lower area, with a clicking in the sacral area. He said he also had pain in the upper part of his back between the shoulder blades. He said the pain is worse when sitting on a train and worse when walking the 500 metres to the local park. He says that he has previously been told that he has Scheuermann's disease of the upper back. Right knee: Mr Caldwell says that the right knee clicks and aches and described a "grinding" sensation so that his maximum walking tolerance is 10 minutes. He said the knee frequently gives way and four months ago it gave way as he was walking down stairs. He said that although he has difficulty going up stairs, down is worse. He said that he can't "rely" on his knee. Memory: Mr Caldwell says his memory is poor, although others notice it more than he does. People continue to tell him but he forgets. He says that if he goes to the shops without a list, he will forget two things out of five and therefore he usually take a list. He usually remembers messages and mostly can be cued but occasionally completely loses them. He says he is able to follow a movie without difficulty and can relate the story the following day. He said that mostly he would recognise a movie one week later. Temper: Mr Caldwell says he has poor temper control and loses it for almost no reason. He shouts and swears and throws things. He has broken plates and glasses and has come close to hitting his "missus". He said he loses his temper more with his wife that with others, but has lost it with strangers, for example in the supermarket. He said he is a bad "back seat driver" losing his temper when he sees others doing the "wrong driving things". Headaches: Mr Caldwell says that he suffers from a headache on the right side of the head, going behind the eyes and to the right occipital area. He says it is severe stabbing and thumping pain, which might last for hours. He said he has had four such headaches in the last three months. Sometimes they have been associated with vomiting. They usually settle with sleep. Other: Mr Caldwell said that his sexual libido was markedly reduced. He also suffers from premature ejaculation. He said he has had no abnormalities of bladder or bowels. Domestic Chores: Mr Caldwell said that he previously helped with vacuuming and bathroom cleaning, but is now unable to do so. He never did ironing in the past but would be unable to do so now. He used to mow but others do this now. 250 Later under the respective headings, 'Prognosis and Attributability', Dr Buckley said: Prognosis: With regard to the right wrist fracture, the prognosis is difficult to predict, as he is present in the acute stage following surgery. His other deficits are permanent. It being more than 2 years since the accident, it is unlikely that there would be any improvement in deficits of higher cognitive function or behavioural deficits following a traumatic brain injury. The injury to his right leg and knee including the fractured patella and ligamentous injuries are likely to lead to the rapid onset of osteoarthritic change. Attributability: All the injuries noted above are consistent with a motor vehicle accident of 12th October 1997 as described to me. Such an injury is likely to exacerbate pre-existing Scheuermann's disease and cause significantly increased levels of back pain." 251 Dr Buckley expressed the opinion that Mr Caldwell should continue to consult his general practitioner 4 times annually; that he should see an Orthopaedic Surgeon, once annually; and that provisions should be made for a total knee replacement within the next 20 years, which itself might required a revision procedure. 252 He proposed that Mr Caldwell should have 6 physiotherapy treatments per annum; that normal maintenance tasks around his dwelling should be carried out by a professional handyman, which he thought would require of the order of 3 hours per week; and that he would need 5 hours per week of housekeeping assistance for carrying out heavy domestic tasks such as ironing, cleaning and heavy washing. 253 As to fitness for work, Dr Buckley concluded that Mr Caldwell is unfit for heavy manual work but considered him fit for sedentary work or light manual work, such as might be required of a shop assistant. 254 Dr Buckley reviewed Mr Caldwell in October 2002. He complained of continuing problems with his right wrist, left arm, migraines, lower back pain, right knee pain, right heel and foot pain, loss of memory function and inability to control his temper. With regard to the last mentioned problem, he told Dr Buckley that he had lost more than one girlfriend due to it. 255 He also told Dr Buckley that he is entirely independent in the activities of daily living, but has difficulty with such tasks as vacuum cleaning and bathroom cleaning, which his mother does for him. He told Dr Buckley that he occasionally sits on the lawn mower to mow and if he does so, he is able to complete a good job. As to his examination of Mr Caldwell, Dr Buckley said: "On mini mental state examination, Mr Caldwell remembered the day, time, month and year. He identified the suburb we were in and remembered my name and title. He identified the Prime Minister but not the Leader of the Opposition. He identified the President of the United States and his father, but not the defining "W". He identified Iraq and with slight prompting, Saddam Hussein and the reasons for Mr Bush's threats against him. He gave a brief explanation of the Bali bombing, but could not identify the actual location (Kuta). He scored 5/5 on backward spelling and only 4/5 of serial7s, being very slow in his calculations. He could not explain simple proverbs and scored 3/3 on a short memory test. On a complete neurological examination, there were no abnormalities of the cranial nerves. Peripheral examination revealed absent left biceps and supinator jerks. There was no ataxia and no abnormal frontal release reflexes. Plantar responses were absent. Examination of his right elbow revealed supination restricted to 45 degrees (90 degrees) and pronation to 40 degrees (90 degrees). The right forearm was 1cm less in circumference than the left and the right biceps were 1cm more that the left. Examination of his right wrist revealed extension limited to 25 degree (80 degree), flexion to 40 degree (90 degree), radial deviation 0 degree (35) and ulnar deviation 30 degree (20). He had normal movements in his fingers and thumbs. Examination of the right knee revealed quadriceps wasting of 1cm with a click of patello-femoral crepitus reproduced. There was a mild positive anterior drawer sign with no other abnormalities." 256 Under "diagnosis", Dr Buckley said: "As previously indicated, Mr Caldwell has a traumatic brain injury in the severe range with consequent deficits of higher cognitive function and behaviour. Current neuropsychological testing has confirmed the presence of the cognitive deficits. Further Mr Caldwell has a healed fracture of the right wrist with marked loss of the range of movement and strength. He has a continuing left musculo-cutaneous nerve impairment with severe left biceps wasting and weakness. He had a fractured right patella, which has healed with some crepitus and ongoing mild knee pain, together with mild anterior cruciate ligamentous laxity. It now being 7 years since the accident, Mr Caldwell's deficits are permanent. As previously indicated, he is likely to have continuing osteoarthritic change in the right knee as a result of the fractured patella and mild ligamentous laxity." 257 Dealing with his fitness for work, Dr Buckley concluded that whereas, previously he was of the opinion only that he was unfit for heavy manual work, he is now (2002) of the opinion that he is unemployable on the open employment market. Following a review of Mr Caldwell in March this year, Dr Buckley confirmed his previous findings. THE DEFENDANTS' MEDICAL EVIDENCE: 258 A number of medical reports were tendered on behalf of Ms Ingham and RTA. None of the providers of those reports was required for cross-examination. 259 Mr Peter Rawling, Clinical Psychologist, took issue with Dr Batchelor's conclusions based, as they were, largely upon a period of post traumatic amnesia. Upon that subject, in his report of 14 March 2000, Mr Rawlings made the following comments: "With the greatest respect to Dr Batchelor, this evidence for attribution seemed suspect. It was very difficult to determine whether the 7-10 days of amnesia reported by Mr Caldwell could be attributed to cerebral trauma. He was actually fully conscious, alert and orientated on admission to hospital and remained like this for 24 hours. He subsequently developed symptoms of drowsiness and confusion but by then, he had been through one operation under a general anaesthetic and had been commenced on strong analgesia. The possibility also arises that he may have been going into withdrawals from amphetamines. Over the next 9 days, he underwent further surgery and continued on high doses of Morphine and Endone. A CT scan was said to have demonstrated some subtle changes that could have been consistent with cerebral oedema but there was nothing in his management that would suggest that hospital staff considered him to have been in PTA. PTA screening assessments were not carried out. When he behaved badly towards a nurse, his surgeon stated that there was no medical reason for this. Thus it is not at all clear that he sustained a head injury of any significance, let alone a severe one. Dr Batchelor argued that it was significant that the patient's mother and girlfriend reported changes in his behaviour and cognition only after the accident. However, since the accident, he has been on high doses of Panadeine Forte and he also continued to take Endone. In addition, he has been at home since the accident with nothing to do and it seemed possible, at least, that his marijuana consumption had increased. Furthermore, he has experienced increased pain and disability since the accident. All of these post-accident changes (i.e. increased analgesic usage, possibly increased marijuana usage, pain, frustration in response to inactivity) could readily explain vagueness and irritability without having to infer a brain injury." 260 On behalf of Ms Ingham, Mr John Raue made a vocational assessment of Mr Caldwell and suggested that with additional training, particularly in the use of computers, Mr Caldwell might be suited to several occupations, such as radio dispatcher, receiving and dispatch clerk or stock clerk. As he made clear, however, he expressed this view without regard to Mr Caldwell's physical limitations. 261 Ms Susan Chadwick, Clinical Psychologist, provided a lengthy report in Ms Ingham's case. She reviewed, at length Mr Caldwell's pre and post accident history, noting among other matters: "Mr Caldwell claimed he was rendered unconscious (in the subject accident). He initially stated that he remained unconscious for one and a half weeks, but then amended this statement, stating, "I was conscious but not there". I was unable to ascertain what he meant by this statement." 262 Mr Caldwell denied to Ms Chadwick ever using illicit drugs. Commenting on Mr Caldwell's presentation when he saw her, Ms Chadwick said: "Mr Caldwell was casually dressed. He had long hair pulled back in a ponytail. His general demeanour throughout the afternoon was one of an angry young man who was clearly not pleased at having to spend three hours in a psychological assessment. I noted also during assessment that he often giggled and laughed inappropriately. Mr Caldwell apparently did this when assessed by Mr Rawling who comments that due to Mr Caldwell's slow and ponderous speech, listlessness, smiling and laughing for no apparent reason he was left with the strong suspicion that Mr Caldwell may have been intoxicated with marijuana. I think it likely that he had used drugs based on a similar presentation when with me." 263 Ms Chadwick summarised her opinion at the conclusion of her report as follows: "In summary, Mr Caldwell continues to complain of a wide range of physical problems. Some of these will no doubt restrict his future vocational potential but this is an issue which invites specialist medical opinion, as well as any prior physical impairment. In my opinion, there is not evidence to support a claim for cognitive impairment as a result of head injury for reasons discussed elsewhere. Furthermore, Mr Caldwell's alleged change in personality is, in my opinion, more likely than not to be due to alleged chronic pain and altered lifestyle and not to the effects of head injury. His alleged drug use, which he denies to me, is of concern if it is the case that he is using marijuana and other drugs on a regular basis, this will continue to reduce efficient cognitive functions. From an intellectual and psychological point of view, Mr Caldwell would, in my opinion, be capable of some form of employment but might need assistance (when his physical condition has stabilised) from an appropriate rehabilitation provider. He reportedly has a poor work history and his motivation to seek alternative employment or be retrained for alternative employment must be seriously questioned. " 264 Dr Grant Walker, Consultant Neurologist, who examined Mr Caldwell in October 2002, expressed this opinion: "Mr. Caldwell has suffered a number of significant orthopaedic injuries as a result of a motor vehicle accident on 12 October 1997. These included various fractures listed above, which have been documented. Of all of these the fracture to his right wrist appears to be causing most ongoing problem, and this has resulted in pain and significant restriction of wrist movement that would certainly limit activities, particularly heavy manual activities, which is all that he has ever worked at. Whether this can be improved in the future is beyond my expertise to comment upon, but one would suspect not. He also has ongoing pain in the right knee which would be expected, given the nature of the fracture to his patella. Mr. Caldwell injured his musculo-cutaneous nerve in some way in the accident and this has been partially rectified by nerve graft, though he remains with some weakness of the left arm which would again limit any heavy physical activities. Mr. Caldwell complains of cervical and lumbar pain, though it would appear from the information available that this is as much likely to be due to his pre-existing kyphosis as anything else, and I do not believe that there is any evidence that the accident has caused further disability in this respect. As far as his head injury is concerned, I can find no convincing evidence from the records that he suffered a neurologically significant head injury. He does complain of poor memory, and an aggressive temper, though these are non-specific symptoms and may equally as well relate to the general injuries and disability and restrictions of activities that he has suffered as a result of the accident. He suffers from migraine, which occurs in 10%-15% of the male population. Apart from the partial weakness of the left biceps muscle, there is not evidence of any neurological sequelae as a result of this accident. Overall, Mr. Caldwell would not be able to work in a labour intensive job because of his orthopaedic injuries. This would not of course preclude all forms of employment, though he is at the lower end of the normal IQ distribution curve, and I doubt that he could be retained in a sufficient capacity to enter the unsponsored workforce. " 265 Dr Lew Pierides, Specialist in Occupational Medicine, was qualified in Ms Ingham's case. He assessed Mr Caldwell on 17 June 2003, and at the conclusion of his report made a number of statements in answer to questions asked of him by Ms Ingham's solicitor, including: "With respect to his neck and back pain I am of the opinion that there is no relationship to the subject accident. He had significant back problems with a history of back pain prior to this accident. There appeared to be no significant injury to his neck and I note that there were no investigations of his cervical spine to view despite his complaint of neck pain and ongoing headaches. Based on the information available within the supplied reports I am of the opinion that there is no evidence of any significant head trauma nor any cognitive diminishment following the accident. There is an ongoing impairment in his right wrist with significant deformity and most likely an early onset of arthritis within various small bones within the wrist. There is certainly an impairment with regards, to his left biceps tendon as a result of the musculo cutaneous nerve injury. He is left with weakness of left elbow flexion although this has improved significantly following the seral nerve graft. In the long term his right knee may give him further symptoms, given the nature of the fracture, and one would expect that patella femoral arthritic change would occur within 5 to 10 years. The other injuries in the accident would not affect his work performance." 266 Dr Pierides expressed the opinion that Mr Caldwell's condition should be considered as stable and that it is unlikely that he could return to heavy labouring work, given the nature of his right wrist injury and his weakness in the left biceps muscle. He said, however, that he would be fit for light labouring work which did not involve a great deal of cognitive input. 267 Dr Pierides reviewed Mr Caldwell on 26 April 2005 and for the most part, reiterated the opinions expressed previously. He noted, however: "He has pain in the right knee as a result of the patella fracture with mild wasting of the right quadriceps. He was unable to squat fully but has a good range of movement of the right knee without significant discomfort. He would have difficulty though in climbing stairs on a repetitive basis or walking up inclines for a prolonged period." 268 Ms Sally Inglis, Occupational Therapist, at the behest of Ms Ingham's solicitors, carried out an occupational assessment of Mr Caldwell in June 2003. In her report, she reviewed his personal and medical history and current symptoms involving his right wrist, right shin, right kneecap, migraine headaches, left arm, right forearm and back. She noted his complaint that since the accident he has found that he is very short tempered and lacking in patience. He told Ms Ingliss that at the time of the accident he was living with his girlfriend in a unit in the city and that he did not stay with his parents for long after the accident, before moving back into the unit with his girlfriend. 269 Mr Caldwell also told Ms Inglis that he was able, at the time he saw her, to ride a motorbike and drive a motorcar. He said that there were, however, problems riding his bike for extended periods and that he needs to stop and walk around for a few minutes every hour or so. He was also experiencing difficulty operating the throttle on the motorcycle with his right hand and he contemplated having an adjustment made to overcome this. 270 Assessing Mr Caldwell's activities of daily living, Ms Inglis noted that, according to Mr Caldwell, he is limited in walking to a maximum of one kilometre. She observed that he was able to manage stairs normally and at a functional speed; that standing in a static position for extended periods appeared to exacerbate his back pain; that he was able to squat to three-quarters of the position but was uncomfortable at the end of a full squat with reported pain in his right knee; that he was able to kneel but was not comfortable kneeling on his right knee; that he bent from the hip to pick up small items from the floor; that he had difficulty in carrying weights greater than 3.6 kilos; and that he could manage normal eating and drinking as he can manage showering, washing himself, drying himself, toileting, grooming etc. 271 Mr Caldwell told Ms Inglis that he had difficulty cutting up some vegetables such as pumpkin but was otherwise independent in cooking. He was able to keep his mobile home clean and tidy, but she concluded that it would be reasonable for him to have assistance, once per month to clean his bathroom properly. In the opinion of Ms Inglis, although Mrs Caldwell largely does her son's washing, he would be able to manage it himself, even if he washed smaller or more manageable loads. She suggested that he should carry wet clothing in a bucket rather than a basket. 272 Ms Inglis considered that Mr Caldwell did not require assistance in ironing his clothes but as he would have difficulty opening a can with his right hand, he should be provided with an electric can opener. She noted that he keeps 3 dogs, 3 pythons and 2 cats. 273 Ms Inglis was of the opinion that Mr Caldwell does not require assistance for shopping and she thought that he could manage a sit-on lawn mower in order to mow the lawns of his parents' property. Dealing with his capacity to perform minor maintenance tasks using a spanner or screwdriver, Ms Inglis commented, "Mr Caldwell can pace some of these tasks but will rely on other family members to perform any tasks requiring extended use of spanners and hand tools. Some power tools or socket sets might assist him to achieve these tasks without significant wrist pain. Some allowance for assistance for house handyman tasks if he is not living at his parents' home is considered reasonable. 274 Ms Inglis discussed with Mr Caldwell his future work options and he confirmed to her that he had not attempted any return to work since his injuries. He said he would like an outdoor job which did not involve heavy lifting, carrying, or extensive overhead work, and that he would not consider working in an indoor job. He told Ms Inglis he had tried paper work prior to the accident and had "hated" it. 275 As to future domestic assistance needs, Ms Inglis concluded that whilst living on his parents' property, he would need half an hour assistance per month for thorough cleaning and scrubbing of his bathroom tiles. If he moved away from the property into a house of his own, Ms Inglis concluded that he would need assistance for home and garden maintenance and domestic assistance of between 5 and 6 hours per month. 276 RTA in its case tendered two letters from Dr Warwick Williams, Psychiatrist, to Dr Roberts, respectively dated January and April 1994, regarding Mr Caldwell's then, sexual problem of premature ejaculation. Indeed, the second letter indicated that Dr Williams had devised a remedial programme. The letters suggest that sexual problems, referred to in the various medical reports compiled after the accident, were of long standing and, at least in part, unrelated to the accident. 277 RTA's case also included a letter from Dr Michael Walsh, Orthopaedic Surgeon, to a Dr Diane Batterham dated 19 March 1996, regarding Mr Caldwell's complaints, at the time, of low back pain. As I understand Dr Walsh's letter, he regarded the complaints as an indirect sequel of Scheuermann's disease. He suggested that the problem could be aided with an exercise programme. 278 Finally, I refer to the report and evidence of Ms Susan Dinley, Occupational Therapist, who visited Mr Caldwell at his home on 9 November 2004 for the purpose of assessing his domestic needs. He was not particularly responsive, as indicated at the commencement of her report: "Throughout the OT interview, the Plaintiff was verbally aggressive, uncooperative, intentionally vague, abrupt and reluctant to answer any questions. He often swore during the interview to ensure that he described this moment to the maximum. The Plaintiff was also "gesture aggressive", throwing his arms in despair, throwing items on the table and hitting the table when angry. The Plaintiff was also non-verbally aggressive by rolling his eyes, sighing, giggling inappropriately and with "disgust"." 279 However, it appears that Mr Caldwell's less than satisfactory presentation did not prevent Ms Dinley from providing a very comprehensive report. She was, incidentally, able to photograph the scarring on his body and her photographs constitute the only direct evidence before the court of the disfiguring nature of them. It is noteworthy that she conducted her interview in Mr Caldwell's parents' house, rather than the mobile home in which, by November 2004, according to his evidence, he was living and her evidence suggests that she was not made aware of this. He denied to her that he used cannabis or other drugs. As to physical activities, he told Ms Dinley that he was restricted in the distance he could walk, although she observed that he walked with a normal stride and was able to negotiate a "drop" of approximately 40 centimetres off the side verandah of the house. He told her that he was unable to crawl; that he could only kneel with difficulty; that he was unable to squat; that he was unable to jump; and that he was unable to run. He demonstrated that he was able to get on and off a bed without difficulty. She observed that he was capable of reaching, with his left arm, but not sustaining reach. He told her that he could carry two, two litre bottles of milk in each hand. 280 Ms Dinley made a detailed assessment of Mr Caldwell' need for domestic services by reference to various stages of his post-accident situation. With qualifications, which I will enumerate, she concluded that by the time of her assessment, he was independent and required no domestic assistance. The qualifications were reflected in her view that generally, up to age 65, he requires assistance for spring cleaning twice per year, a total of 20 hours per year and that if he relocates to a new home, she thought he would need 1 hour per week for garden maintenance. Past the age of 65, she thought that he would need in addition 1 hour per fortnight for heavy washing and 1 hour per fortnight for heavy shopping. She pointed out that there would be periods of greater need after surgical procedures which would include assistance with meals; "catching and fetching" assistance for shopping, banking etc; and transport assistance. 281 She opined that it would be appropriate for Mr Caldwell to consult an occupational therapist for about 8 hours at a total cost of $960. She thought his motorcycle should be modified following an assessment of his needs in that regard. 282 She also suggested the purchase of appropriately designed household aids and equipment, which she costed at $1275 in total of which $380 related to future needs. 283 Ms Dinley gave oral evidence and was cross-examined by Mr McIwaine. Her view was, I think, demonstrated by these exchanges: "Q. Do you think that someone who has a neck problem, a right arm, particularly their wrist which is painful and restricted in movement, who has a painful low back and a painful and restricted right knee and ankle, would have difficulty doing activities associated with washing? A. As an occupational therapist we assess all those areas and once again we look at the person as a total, we look at their age, we look at the aging process. We then look at equipment and compensation techniques. Q. But would you answer my question, and that was do you think someone of the kind that I have described to you would have some difficulty doing those activities associated with washing? A. He will have difficulty, but he can use compensation techniques, time management skills and equipment to be able to achieve his clothing maintenance. Q. As far as the washing is concerned and dealing with the activities that you have just described, first of all what time management skills would you suggest would be helpful to him in relation to that? A. As indicated earlier, we look at the time of day he gets up. We do a time plan of the day of events, what he has to do. We look at a weekly timetable as well. We look at medication. We look at when he has his greatest pain, and then we look at slotting in those different types of activities into the best part of the day for the best outcome. Q. Does that compete with your time management of when he is going to do the house cleaning? A. Yes, it works in together. Q. Even if he does it between 2am in the morning and 3am in the morning, if that's the most suitable time to do it, how do you avoid the physical activity? A. For clothing maintenance? Q. Yes. For doing the washing, washes his clothes and drying them. A. First of all you have to look at the rooms in the house. You have to look at where he dresses and undresses. You then get him to place things at a suitable height so that he doesn't then have to go through and pick things up off the floor. He then has to gather them either in small piles, to walk them across to the laundry, or he uses a laundry basket on wheels. Q. How does he get the clothes from the laundry basket on wheels into the washing machine? A. He does that in small piles. Q. And he gets them out in small piles? A. He does. Q. He hangs them on the line in small piles, does he? A. He certainly does, and he uses a clothes horse. A smaller line for smaller items as possible, and he limits how many heavy items he washes in one week, which is probably quite small, and then he uses the line minimally. So he does small loads, lifts small amounts, and uses a clothes horse which is generally at a very good working level for people with disabilities. Q. Is any of this going to cause him pain given the kind of disabilities this man has? A. Pain? Not if he does it correctly and not if he does it within the right time frames. Q. Do you mean when he is all drugged up with painkillers, is that what you mean? A. If that is his choice." ……………. Q. What about ironing? Is that something that you would see that would cause this plaintiff a problem? A. Ironing? It obviously requires right-hand dominance. For ironing most people buy, then, change the way they buy their clothes. They buy simpler clothes. They buy drip-dry clothes, so that they have to minimise their ironing. So most disable people, and even people just generally in the community, tend to buy drip-dry, less maintenance, so that they don't have to iron every day for long periods of time, and the same thing that if he has to iron something, then he irons on a daily basis perhaps it only takes 10 minutes to do a couple of items to keep everything up to date. Q. Do you think the ironing would cause him pain? A. Not if he does it correctly. I understand that that would cause some pressure on his wrist and perhaps on his shoulder. Certainly if he purchases an ergonomic type of iron, which are readily available. They are readily available. They have been written up in some of the biomechanical journals. There are some irons that require less energy and less range of movement - then he should be able to manage. ………………………….. Q. Can I understand from what you have said throughout this entire assessment of yours when you have broken things in stages, the reason you have broken the fifth stage into a period from November last year up until he turns 65, is because you have notionally taken the age of 65 as the time when ordinary able-bodied, normal members of the community are regarded in the OT industry as having reached a point where they are regarded as geriatric? A. Not necessarily in the OT industry. It is right throughout state health. It is with the rehab physicians and your geriatricians, and most state health facilities and federal funding kicks in at 65. So that's when we generically look - some people might age until they are 90. Some people age at 40 following injuries, but that is the generic-- Q. That is the sole science that you have used in selecting 65 as your transition point from stage 5 to stage 6? A. Yes, that's correct. …………………………. Q. Will you concede, therefore, that your stage 6 should commence years before the age of 65 for this man, given his disabilities? A. In my opinion, no. Q. But he is vastly different to the normal person that you have used as the norm to select 65 as a transition point, isn't he? A. Yes, Q. Doesn't it follow that because his disabilities are such that he is different to your norm, therefore the period when stage 6 starts ought to be much earlier? A. No. Q. Why not? A. As I said before, he should be able to manage with compensation techniques and equipment, time management skills. Q. How is he going to manage, say, in the six months before he needs a total knee replacement with your compensation skills? A. Well, a lot of people do. So he will manage, as I've said before. Q. You don't know whether he will manage or not? A. It is a crystal ball for all of us. Q. Doesn't it depend as well on a person's personality? A. Of course it does. Q. And you are aware that this person's personality has been altered - at least it is alleged that this person's personality has been altered; you know that, don't you? A. I don't know. I didn't know him beforehand. ………………………………. Q. But do you accept that in the environment in which you have said these things can be done by him he would still experience pain in those areas affected, namely, his neck, his right wrist, his knee, and his back, when he was doing so, unless he was so drugged up with painkillers that he wouldn't feel the pain; is that a fair comment? A. Yes. Q. Would you also concede that if there were in place a regime of the kind that you've been describing, but to do the activities referred to in your report, it would take considerably longer for him to do them than it would take an able-bodied person? A. Yes." 284 Finally, in the cross-examination, Mr McIwaine turned to Mr Caldwell's behaviour during the interview with Ms Dinley and there was this exchange: "Q. It's pretty clear from the introductory part of your report that the welcome to and during your consultation you at least perceived the plaintiff to be less than gracious? A. Correct. Q. He did, though, didn't he - and I'm not trying to excuse it, you understand that - he did, however, didn't he, express to you a very deep frustration with the pain that he was suffering? A. Yes, he did. And also that it had taken so long. It's in the first part of my report. …………………… Q. I understand. A. So it was a combination of events. Q. The short point is that you were confronted with a man who was deeply frustrated and angry about the fact that he was in pain and couldn't do the things that he would wish to do; is that a fair statement? A. That's a fair statement. …………………………………………………. In re-examination, Ms Dinley expanded upon her rehabilitation views: A. The rehabilitation theory is the theory that I have always worked by, I was taught by, and also the occupational performance model, which is an occupational therapy model that came out from the United States and, of course, hit Australia about 15 years ago. In that it looks at all the different facets of life - the emotional status, the memory status, the cognitive status, the social status. It looks at the whole gamut of the person and it looks at the domino effect to each part of that whole person. Basically when someone is in pain - if they are going to be sitting around doing nothing, that is more detrimental to their self-esteem, to their pain levels, and to their whole person as a whole, because when you actually have to get up to do an activity then you will become more satisfied with your life, you will during that time that you are doing it hopefully minimise your pain because the opiates come through the system and you start feeling a lot better. So it is no good just recommending someone else to go and do your housework, your cooking, cleaning and taking care of the kids and preparing the kids' lunches, because that is not what life is, that is not what an occupational therapist is, and that is not what a rehabilitation model for rehabilitation is for post-injury. In fact, providing and recommending lots of assistance is quite detrimental to the person's healing process and rehabilitation in general." DID MR CALDWELL SUFFER ORGANIC BRAIN DAMAGE? 285 I do not find, on the evidence, that there was organic brain damage. It seems to me that the basis for any such conclusion is flimsy in the extreme, depending almost entirely on the reference by Dr Hunt to something told to him by Mr Caldwell. 286 It seems almost inconceivable that if there were any reason to investigate brain damage that would not have been done while Mr Caldwell was a patient in Royal North Shore Hospital. 287 Moreover, in considerable measure, Dr Batchelor, upon whose opinions Mr Caldwell's case, on this aspect largely depends, relies upon Mr Caldwell's statement to her that he no longer is involved with cannabis. In the absence of any independent support for that claim, I would not be willing to accept it. 288 In my opinion, the analysis by Mr Rawlings is to be preferred. The symptoms of emotional disturbance complained of by Mr Caldwell may, as it seems to me, be readily explained, as Mr Rawlings suggests by his physical injuries and altered life style. DAMAGES FOR NON-ECONOMIC LOSS: 289 It will be necessary to assess separately damages under the Motor Accidents Act and under the Civil Liability Act. In respect of non-economic loss, an assessment is to be made under s79 A of the Motor Accidents Act and under s16 of the Civil Liability Act. 290 For the purpose of s 79A of the Motor Accidents Act, I am satisfied that Mr Caldwell's ability to lead a normal life has been significantly impaired for a continuous period of not less than 12 months by the injuries suffered in the accident and, for the purposes of s16 of the Civil Liability Act, I am satisfied that the severity of the non-economic loss is at least 15% of a most extreme case. 291 Mr Caldwell proved physical injuries which included a comminuted fracture of the mid-shaft of his right femur; a comminuted fracture of his right kneecap; a comminuted fracture of both bones of his distal right dominant forearm involving the wrist joint; fractures of the distal radius and ulna styloid; a fractured nose; facial and lip lacerations; damage to left front central incisor tooth and other teeth; a complete left musculocutaneous nerve injury; a head injury; and a soft tissue injury to his low back. 292 He claims continuing physical disabilities which include headaches; facial and bodily scarring; pain and restriction of movement in his right leg; loss of strength and restriction of movement in his right hand, wrist and forearm; pain in his lower back; pain in both shoulders; weakness and numbness in his left arm; loss of flexion in his left elbow; difficulties with sexual intercourse; and emotional or psychological sequelae manifested by depression, anger or shortness of temper; inability to concentrate; memory loss; and lack of libido. Although as indicated, I am not satisfied that organic brain damage was proved, I accept that all the matters claimed above, exist and are causally related, at least to some extent, to the accident. The lower back pain seems to result from an accident related aggravation of the pre-existing symptoms of Scheuermann's disease. As Mr Caldwell was complaining of, and sought treatment for back pain in 1996, it is impossible to determine the extent to which back pain suffered since the accident is related to it, but it is reasonable to conclude that the accident, at least, played some part. Whilst he had problems with sexual intercourse previously it is reasonable, I think, to conclude that his physical problems make intercourse difficult. His loss of memory, depression anger and loss of libido, I attribute to the trauma of the accident and the physical injuries which he sustained in it. I am satisfied, on the evidence, that his present condition should be regarded as permanent with little scope for improvement. Indeed, it is likely to deteriorate with the onset of osteoarthritis. 293 Mr McIlwaine submitted that everything considered, Mr Caldwell's injuries and disabilities represent 65% of a most extreme case. On the other hand, Mr Renshaw and Mr Barrett both submitted that 35% would be more appropriate. My finding that organic brain damage was not proved indicates, I think, that the percentage suggested by Mr McIwaine is too high. Nonetheless, the injuries and continuing disabilities were and are very severe particularly in their impact upon a fit and healthy young man. I assess 55% as the appropriate proportion. This would result in damages for non-economic loss of $187,500 under the Motor Accidents Act and $220,000 under the Civil Liability Act. ECONOMIC LOSS TO DATE OF TRIAL: 294 As at the date of the accident, Mr Caldwell was permanently employed in his parents business but, as I have indicated, was paid only for the hours he worked. In the 12 months preceding the accident, his gross weekly earnings ranged from $90 to $570 and averaged $305. His net earnings averaged $230 per week. At the time average weekly earnings for adult males was $835 gross per week or approximately $600 net. 295 He was, however, as submitted by Mr McIlwaine, fit and strong and plainly had the capacity, if he chose to exercise it, of working in a more remunerative occupation. However, he chose not to do so and there is no evidence that he intended to seek other employment, apart from the suggestion that his parents hoped he would one day take over the business. There was no evidence as to the profitability of the business which, in any event, according to the evidence of Mrs Caldwell, has contracted since the accident, nor, as I said did she indicate that Mr Caldwell was capable of assuming management of the business. If anything, her evidence, to my mind, suggested otherwise. 296 For the reasons given earlier, I do not think it appropriate to consider the income earned by Mark in assessing Mr Caldwell's loss. 297 On the one hand, Mr Renshaw submitted that in effect, Mr Caldwell had found for himself a comfortable life, involving relatively short hours of work in his parent's business, which left him plenty of time to ride his motorcycle and engage in other recreational pursuits, including his involvement with illegal substances, and that there was no reason to conclude that this situation would alter. On the other hand, Mr McIlwaine pointed out that Mr Caldwell's attitude might change if he accepted, for instance, the responsibility of a wife and children. He submitted that, at least, having regard to Mr Caldwell's level of fitness, his loss of income earning capacity should be based on average earnings. 298 The problem is not without difficulty. At the time of the accident, Mr Caldwell was 28 years of age, and certainly, up to then had not demonstrated a particularly strong work commitment even though he had been in employment with his parents for most of the time since leaving school. 299 My conclusion is that in the nearly eight years since the accident, Mr Caldwell is likely to have continued working in his parents' business and to have earned something less than average earnings. At the time of the accident he earned roughly 36% of average weekly earnings which were, at the mid point between the accident and now viz May 20001 $988.40 gross or $776 net. 300 Doing the best I can, I think it would be reasonable to compensate Mr Caldwell on the basis that between the accident and the date of trial, he would have earned about $450 net per week. On that basis, I award for past diminished earning capacity, over a period of 7 years and 7 months, the sum of $ 177,450. 301 In the circumstances, I do not think there should be any discount of the above sum to take account of Mr Caldwell's loss of his driving licence during the period. Nor do I regard his involvement with illegal substances as something which expressly needs to be taken into account. FUTURE ECONOMIC LOSS: 302 Although Mr Caldwell may have a very small residual earning capacity, I think that for all intents and purposes, he should be regarded as permanently incapacitated for gainful employment. In my opinion, having regard to his disabilities; his level of education and his limited pre-accident experience and training, he is unlikely to be able to obtain employment on the open market. 303 As to compensation for future diminished earning capacity, my assessment is that Mr Caldwell is unlikely to earn as much as the average weekly earnings of Australian Males. That is an assumption I make for the purposes of s13 of the Civil Liability Act. That assumption is to be coupled with my assumption that Mr Caldwell is permanently incapacitated for employment. 304 Again doing the best I can, I think it reasonable to calculate his loss of future earning capacity by reference to the figure I adopted in assessing his loss to the date of the trial, namely $450 per week. Using 5% tables a multiplier of 815.8 to encompass the period until Mr Caldwell attains 65 and deducting 15% for vicissitudes, I assess compensation for future diminished earning capacity at $ 312,043. 305 The award of $312,043 will be applicable both to Ms Ingham and RTA. For the purposes of s70 A of the Motor Accidents Act, it is implicit in what I have said that there is at least a 25% likelihood that Mr Caldwell will suffer a diminution of future economic capacity. 306 For the purposes of the Civil Liability Act, I am satisfied that the assumptions on which the calculations are based, accord with Mr Caldwell's most likely future circumstances but for the injury. No further adjustment seems to me to be required by subsections (2) and (3) of s13. OUT OF POCKET EXPENSES: 307 Out of pocket expenses were agreed by all parties at $41,879.70 and this sum should be allowed. PAST SUPERANNUATION: 308 Mr Caldwell is entitled to be reimbursed for the lost benefit of compulsory superannuation payments made by his employer on his behalf, which I calculate at $19,519 and allow against both Ms Ingham and RTA. FUTURE SUPERANNUATION: 309 In respect of the award for future diminished earning capacity, I allow $34,325 for loss of superannuation entitlements. Again the amount is recoverable against both Ms Ingham and RTA. FUTURE MEDICAL EXPENSES ETC: 310 A number of claims have been made on behalf of Mr Caldwell in respect of future medical treatment. Of the various claims, only future dental treatment in the sum of $2,550 was agreed and that sum should be allowed. 311 Dr Buckley in several of his reports opined that Mr Caldwell would require a total knee joint replacement and a revision of such replacement. However, in his report of 7 April 2005, he said that the knee joint replacement may not be required until late in the 6th or 7th decades. In respect of this surgery, the claim on Mr Caldwell's behalf was $16,119.00. Counsel for Ms Ingham and RTA submitted that a much smaller allowance would be applicable. 312 However, the amount sought by Mr Caldwell seems to me to be reasonable in the light of the opinions expressed by Dr Buckley, with the qualification that there should, I think, be some discount for vicissitudes, which I would assess at 20%. In respect of the knee joint replacement, I would, therefore, allow, rounding up the calculation, $13,000. 313 On the evidence, particularly the reports of Dr Scougall and Dr Beard, Mr Caldwell probably will require surgical intervention to his wrist. According to Dr Beard's report of 6 April 2005, this may take the form of an arthroscopy and debridement, or possibly an arthrodesis. I think it reasonable to allow $2,000 in respect of future wrist surgery. 314 Further amounts were claimed on behalf of Mr Caldwell in respect of two consultations per annum with a general practitioner; an annual review by a rehabilitation physician; an annual review by an orthopaedic specialist; six physiotherapist sessions per year; surgery to revise facial scarring; and psychiatric consultations. The sum claimed in respect of these matters totalled nearly $18,000, to which should be added the consultations with an occupational therapist suggested by Ms Dinley and modifications to his motorcycle. There was little specific evidence from Mr Caldwell that he proposed to undertake or undergo the treatment or visits to medical practitioners suggested, but, in my opinion, it would be reasonable to allow a lump sum. I quantify this at $10,000 which is intended to cover all the matters referred to in this paragraph. 315 Dr Buckley in his report of 18 December 2002 suggested that Mr Caldwell requires a fund manager in respect of any award of damages made in his favour. He predicated that opinion upon his conclusion, contrary to my own finding, that Mr Caldwell suffered organic brain damage. In any event, I do not think the evidence warrants an allowance for a fund manager as suggested by Dr Buckley and I make no award on this account. PAST GRATUITOUSLY PERFORMED DOMESTIC ASSISTANCE: 316 Both s72 of the Motor Accidents Act and s15 of the Civil Liability Act restrict the amount which may be awarded under the above heading. Relevantly to this case, no damages are to be awarded if the services are provided, or are to be provided, (a) for less than 6 hours per week and (b) for less than 6 months. Moreover, the court must be satisfied that the services claimed would not have been provided to the claimant, but for the injury. The last mentioned factor is of particular relevance in this case as the gratuitous services claimed by Mr Caldwell were performed by his mother, upon whose property he was living at the time of the accident. 317 In respect of the period from the date of the accident to 18 May 1998, I accept the contention made on behalf of Ms Ingham and RTA that the claim for gratuitous services provided by Mrs Caldwell should be determined at the sum of $5491. I do not think that the claim should be allowed for any period prior to Mr Caldwell's discharge home on 13 November 1997. This is because I doubt, on the evidence, that Mrs Caldwell's hospital visits constituted the provision of services meeting Mr Caldwell's needs. Her shopping for him may have qualified but this did not, I infer, amount to 6 hours per week. 318 I also accept, in accordance with concessions by counsel for Ms Ingham and RTA, that allowance should be made for gratuitous services provided by Mrs Caldwell in respect of 4 further periods, namely, $931.20 for 4 weeks while Mr Caldwell recovered from the surgery performed on 19 May 1998; $626.40 for 4 weeks while Mr Caldwell recovered from the surgery performed on 1 September 1998; $1303.20 for 8 weeks following the surgery performed on 17 August 1999; and $720.40 for a period of 4 weeks after Mr Caldwell's discharge from hospital in June 2001 following surgery to his wrist and to his right leg. Those amounts total $3,581.20. 319 In my opinion, other domestic services provided gratuitously by Mrs Caldwell up to the date of trial do not meet the criterion of being provided for at least 6 hours per week and, accordingly, no sum is payable on this account. Nor for the same reason does the evidence support any allowance for the future gratuitous supply of domestic services. CLAIM FOR FUTURE DOMESTIC CARE AND ASSISTANCE: 320 Mr Caldwell claims for 5 hours per week paid domestic assistance and 3 hours per week paid home maintenance and handyman assistance. These claims are for the balance of his life expectancy. 321 The report of Dr Buckley dated 18 December 2002 supports these claims but, in my opinion, particularly in light of the evidence of Ms Dinley, they are excessive. They are especially so while Mr Caldwell continues to live in a mobile home. Even in a new house, he would not, in my opinion, require paid domestic and handyman assistance totalling 8 hours per week. He should, however, equip himself with appropriate aids and equipment, as suggested by Ms Dinley, as to which I would allow $1,500. 322 In addition, I think it would be reasonable to allow 1 hour paid domestic assistance per week and 1 hour handyman assistance per week. For his life expectancy, this at the agreed rate of $31 per week would amount to $58,404. Although this award is, I think, excessive for Mr Caldwell's present needs, I accept that he is likely to move to his own home where his needs will be greater as they also will be in periods following future surgery and treatment and in the likely event that there will be some worsening of his medical condition. 323 In assessing claims under the above heading I have accepted the thrust of Ms Dinley's evidence, namely that Mr Caldwell for his own benefit should be encouraged to be as self sufficient as possible. In this connection I prefer the testimony of Ms Dinley to that of Dr Buckley. INTEREST: 324 It may be that Mr Caldwell is entitled to interest under s 73 of the Motor Accidents Act and under s18 of the Civil Liability Act. The court is not in a position to determine the issue of interest, at least in respect of damages to be awarded against Ms Ingham, and that aspect of the case will need to be stood over for further argument. SUMMARY OF DAMAGES CALCULATED AGAINST MS INGHAM: 325 Non Economic Loss (para 293) $187,500.00 Past Economic Loss (para 300) $177,450.00 Future Diminished Earning Capacity (para 304) $312.043.00 Out of Pocket Expenses (para 307) $ 41,879.70 Past Superannuation benefits (para 308) $ 19,519.00 Future Superannuation Benefits (para 309) $ 34,325.00 Future Medical etc. Expenses (paras 310,312,313 and 314) $ 27,550.00 Gratuitous Domestic Assistance (paras 317 and 318) $ 9,072.20 Future Domestic Assistance (paras 321 and 322) $59,904.00 TOTAL: $869,242.90 SUMMARY OF DAMAGES AWARDED AGAINST RTA: 326 Non Economic Loss (para 293) $220,000.00 Past Economic Loss (para 300) $177,450.00 Future Diminished Earning Capacity (para 304) $312.043.00 Out of Pocket Expenses (para 307) $ 41,879.70 Past Superannuation benefits (para 308) $ 19,519.00 Future Superannuation Benefits (para 309) $ 34,325.00 Future Medical etc. Expenses (paras 310, 312, 313 and 314) $ 27,550.00 Gratuitous Domestic Assistance (paras 317 and 318) $ 9,072.20 Future Domestic Assistance (paras 321 and 322) $59,904.00 TOTAL: $901,742.90 VERDICTS AND ORDERS: 327 In light of the above assessments, I would propose to enter a verdict for Mr Caldwell against Ms Ingham in the sum of $608,470. I would propose to enter a verdict for Mr Caldwell against RTA in the sum of $ 270,523. I would propose to order that Ms Ingham and RTA pay Mr Caldwell's costs, apportioned between them as to 70% to Ms Ingham and 30% to RTA. 328 As the matter of interest remains to be resolved and as the parties may wish to seek further orders, including orders dealing with the cross-claims, I stand the matter over until 3 August at 9.30am, or such other date convenient to all the parties as may be arranged with my Associate. On that date I would contemplate making formal orders for the disposal of the proceedings. I invite the parties to agree upon Short Minutes of Order. I CERTIFY THAT THIS AND THE PRECEDING 143 PAGES CONSTITUTE A TRUE COPY OF THE REASONS FOR JUDGMENT OF ACTING JUSTICE PATTEN ……………………….. ASSOCIATE 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.