Reported Decision : 209 FLR 53 New South Wales Supreme Court CITATION : Laws v GWS Machinery Pty Ltd & 2 Ors; Laws v GWS Machinery Pty Ltd & Anor [2007] NSWSC 316 HEARING DATE(S) : 01/05/2006-05/05/2006; 08/05/2006-12/05/2006; 15/05/2006-19/05/2006; 22/05/2006-25/05/2006; 27/06/2006 JUDGMENT DATE : 4 June 2007 JURISDICTION : Supreme Court JUDGMENT OF : Rothman J The Court proposes the following orders: A. In 20084/2002, Thomas John Laws (Laws Senior): (i) Judgment for the plaintiff against the first and second defendants in the amount of $272,433.79; (ii) Each of the first and second defendants contribute 50% of the judgment sum; (iii) The first and second defendants pay the costs of the plaintiff of and incidental to these proceedings, as agreed or assessed; and (iv) Pursuant to Rule 36.4(3) of the Uniform Civil Procedure Rules 2005 (NSW), this judgment comes into effect on and from 1 June 2007 and interest pursuant to s.101 of the Civil Procedure Act 2005 (NSW) accrues from that date. DECISION : B. In 20076/2002, John Rodney Laws (Laws Junior): (i) Judgment for the plaintiff against the first and second defendants in the amount of $9,146,462.05; (ii) Each of the first and second defendants shall contribute 50% of the judgment sum; (iii) The first and second defendants shall pay the costs of the plaintiff of and incidental to these proceedings, as agreed or assessed; (iv) Otherwise, the proceedings, including the cross-claim be dismissed; and (v) Pursuant to Rule 36.4(3) of the Uniform Civil Procedure Rules 2005 (NSW), this judgment comes into effect on 1 June 2007 and interest pursuant to section 101 of the Civil Procedure Act 2005 (NSW) accrues from that date. The Court makes the following orders: (i) Both matters stand over until 9.30am on 14 June 2007; (ii) Leave is given for each plaintiff to inform the Court of the election as to damages in negligence and for that purpose to notify the Associate to Justice Rothman and each other party of the election by close of business 12 June 2007; (iii) Leave is granted to all parties to notify and serve any alleged miscalculation in the reasons for judgment by that date and for any special or different basis for the order for costs; and (iv) The parties are directed to confer and the plaintiffs shall file a formal minute of the orders arising from these reasons for judgment. NEGLIGENCE – DUTY OF CARE – vendor and purchaser – actual knowledge of dangers – reason to know – vendor liable – importer/wholesaler liable – warning required – reasonable response – causation. CATCHWORDS : TRADE PRACTICES ACT – meaning of consumer – used up in process of repair – tractor tyre not ordinarily acquired for domestic purpose – consumer except for purposes of Part V Division 2A. DAMAGES – election between damage under negligence and Trade Practices Act – future care principles – 24-hour care required. Civil Procedure Act 2005 (NSW) LEGISLATION CITED : Sale of Goods Act 1923 (NSW) Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 (NSW) ACCC v Glendale (1998) ATPR 41-632 Arnison v Smith (1889) 41 Ch D 348 Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 Atkinson v Hastings Deering (Qld) (1985) 6 FCR 331 Australian Timber Workers Union v Monaro Sawmills (1980) 42 FLR 369 Berrigan Shire Council v Ballerini [2005] VSCA 159 Chulcough v Holly (1968) 41 ALJR 336 Crago v Multiquip (1998) ATPR 41-620 Dessent v Commonwealth (1977) 51 ALJR 482 Donoghue v Stevenson [1932] AC 562 Fabre v Arenales (1992) 27 NSWLR 437 Graham Barclay Oysters Pty Ltd v Ryan; Ryan v Great Lakes Council; State of New South Wales v Ryan (2002) 211 CLR 540 Grant v Australian Knitting Mills (1935) 54 CLR 49 Imperial Furniture Pty Ltd v Automatic Fire Sprinklers Pty Ltd [1967] 1 NSWR 29 Jillawarra Grazing v John Shearer (1984) ATPR 40-441 Jones v Dunkel (1959) 101 CLR 298 Lanza v Codemo [2001] NSWSC 72 CASES CITED : Laundess v Laundess (1994) 20 MVR 156 McPherson's Ltd v Eaton [2005] NSWCA 435 Minchillo v Ford [1995] 2 VR 594 Modbury Triangle v Anzil (2000) 205 CLR 254 Olley v Marlborough Court Ltd [1949] 1 KB 532 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 Pesl v Ray Smith Tractors [2007] NSWCA 74 Podrebersek v AI&S (1985) 59 ALJR 492 Purkess v Crittenden (1965) 114 CLR 164 SCC v Dell Oro (1974) 132 CLR 97 Sharman v Evans (1977) 138 CLR 563 Stevens v Brodribb Sawmilling (1986) 160 CLR 16 Stevenson Jordan & Harrison v McDonald [1952] 1 TLR 101 Sullivan v Moody (2001) 207 CLR 562 Texcrete Pty Limited v Khavin [2003] NSWCA 337 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Van Gervan v Fenton (1992) 175 CLR 327 Wyong Shire Council v Shirt (1980) 146 CLR 40 20076/2002 - P: LAWS, John Rodney D1: GWS Machinery Pty Ltd D2: Motokov Australia Pty Limited (in liquidation) / CGU Insurance Australia Limited D3: LAWS, Thomas John PARTIES : XC: LAWS, Thomas John XD: NRMA Insurance 20084/2002 - P: LAWS, Thomas John D1: GWS Machinery Pty Ltd D2: Motokov Australia Pty Limited (in liquidation) / CGU Insurance Australia Limited FILE NUMBER(S) : SC 20076/2002; 20084/2002 20076/2002 - P: Mr D.A. Wheelahan QC with Mr P.J. Frame D1: Mr S.G. Campbell SC with Mr P.L. Perry D2: Mr R.A. Gray COUNSEL : D3: Mr P.J. Doherty SC with Mr Morgan 20084/2002 - P: Mr P.J. Doherty SC with Mr Morgan D1: Mr S.G. Campbell SC with Mr P.L. Perry D2: Mr R.A. Gray 20076/2002 - P: Mr S. Groves (Lamrocks Solicitors) D1: Mr P. Lederman (Moray & Agnew Solicitors) D2: Mr S. Kennedy (Curwoods Lawyers) SOLICITORS : D3: Mr P. Heath (Somerville & Co) 20084/2002 - P: Mr P. Heath (Somerville & Co) D1: Mr P. Lederman (Moray & Agnew Solicitors) D2: Mr S. Kennedy (Curwoods Lawyers) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ROTHMAN J 4 June 2007 20076/2002 John Rodney LAWS by his tutor Catherine Anne LAWS v GWS MACHINERY PTY LIMITED & ORS 20084/2002 Thomas LAWS v GWS MACHINERY PTY LIMITED & ORS JUDGMENT 1 HIS HONOUR: On 10 March 1999 Thomas John Laws was fitting a tyre to the tyre rim of a Massey Ferguson 35 Tractor when the tyre and tube exploded forcing the rim outwards and causing injury to Thomas Laws (hereinafter referred to as Laws Senior) and his son John Rodney Laws (hereinafter referred to as Laws Junior). The son, Laws Junior, sustained substantial and serious injuries and consequent continuing disabilities. The father, Laws Senior, also suffered injury. 2 Each of the son, Laws Junior, and his father, Laws Senior, sue the retailer of the tyre, GWS Machinery Pty Limited ("GWS") and the importer and distributor (and for some present purposes the manufacturer) of the tyre, Motokov Australia Limited ("Motokov"). 3 CGU Insurance Australia Limited have been substituted as the defendant for Motokov because of Motokov's liquidation and subsequent de-registration. 4 Laws Senior claims for the personal injuries caused by the explosion against GWS in negligence, in that it has breached its common law duty of care, and in contract, for breaches of conditions implied into the contract by the general law, by sub-sections 19(1) and 19(2) of the Sale of Goods Act 1923 (NSW), and by sub-sections 71(1) and 71(2) of the Trade Practices Act 1974 (Cth). Laws Senior also claims damages against Motokov, also in negligence for breach of its common law duty of care, and for breaches of sections 74B, 74D and 75AD of the Trade Practices Act 1974 (Cth). 5 Laws Junior sues GWS in negligence for breach of its duty of care; this, it is said, being determined on the issue of foreseeability of damage arising from such breach. Laws Junior sues Motokov again in negligence for breach of its duty of care at common law and also for breach of section 75AD of the Trade Practices Act 1974 (Cth). 6 I need to detail the facts that gave rise to the sale and supply by GWS and Motokov respectively and the conduct, which gave rise to the explosion and consequent injuries. Having done so, it will be necessary to deal with the issues of liability in respect to each plaintiff and, to the extent that liability is found to exist, the nature of the injuries suffered by each plaintiff and the damages that arise therefrom. 7 Initially, Laws Junior also sued Laws Senior who, in turn, cross-claimed against GWS and Motokov. This aspect, both the suit by Laws Junior and these cross-claims were resolved during the proceedings. However, GWS and Motokov each claim, by way of cross-claim, against the other in the remaining proceedings by both Laws Junior and Laws Senior. Further, in the proceedings by Laws Junior, each of GWS and Motokov claim contribution by Laws Senior and, in the Laws Senior action, claim reduction on account of contributory negligence. Facts Relevant to Liability 8 Laws Senior was born on 28 August 1943 and was 55 years of age at the time of the accident. He lived with his wife Kerry in Bowen Mountain in the Central Coast of New South Wales. He was involved in building and renovating houses and doing general farming work for the people in and around the region including slashing and excavation work. In performing that work he operated a partnership with his wife, the division of labour being that Mr Laws Senior performed all of the work from which income was derived and his wife performed the clerical and accounting tasks. 9 On 10 March 1999, the date of the accident, Laws Senior was performing work at a neighbour's residence. The work was slashing work for which purpose he used a Massey Ferguson 35 Tractor owned by Laws Senior and, probably, his wife. The tractor had been purchased second-hand in 1996 and, while relatively old, had been used consistently and continuously by Laws Senior since that time. 10 This was, for those unfamiliar with a Massey Ferguson 35, a typical small tractor. It had large rear tyres, which were the drive wheels, and smaller front tyres. On the morning of 10 March 1999, the left-hand rear tyre of the tractor punctured. At the time Laws Senior was working in a paddock that was uneven and, despite the puncture, managed to get the tractor onto more level ground. It was clear that the tyre was unable to be repaired. He rang his wife at home and read to her the size of tyre that was needed. He read that size from the deflated tyre and asked her to ring around local tyre outlets to obtain a new one. 11 Mrs Laws rang two outlets one of them, Brooks Tyres, was a tyre specialist and the other was GWS. Brooks Tyres had no appropriate stock. 12 There was some minor issue in the proceedings as to the size of tyre for which Mrs Laws had asked. Neither of the witnesses could recollect precisely the size of the tyre, not surprisingly after this many years. Laws Senior had read the size of the tyre off the deflated tyre itself and we can assume that the size of the tyre was given relatively accurately. 13 Mrs Laws could not recall precisely the size of tyre that was told to her but had made a record (Exhibit L) which record discloses the numbers and symbols 10.11.2-28. Reading the note Mrs Laws described it as "ten eleven point two dash twenty-eight." 14 When Mrs Laws telephoned GWS it is most probable that she spoke to a person named Rod Kitching, who is now deceased. Mr Kitching was the second in charge of GWS spare parts sales and had held that position for approximately 10 years and had been working with tractor spare parts for approximately 45 years. 15 It is not absolutely clear the size of tyre that was given to Mr Kitching by Mrs Laws, but, relevant to these proceedings, it does not matter. If it were, as is possible, the size 10.11.2-28, there is no such tyre size. It is clear that whatever Mrs Laws gave to him, and I do not at this point discount that Mrs Laws asked for an 11.2 – 28 (the actual size of the deflated tyre), Mr Kitching understood, as is obvious from his subsequent conduct, that the size requested was 11.2 – 28. 16 To the extent that I may be incorrect in my assessment that the size requested was irrelevant, I should elaborate on why it is I think it is more than possible that what was requested was an 11.2 – 28. While the record (Exhibit L) discloses 10.11.2-28, the last three numbers (i.e. all but the number 10) is the actual size of the tyre. Exhibit L may have been written in circumstances where it was initially thought that her husband said "10" (or, he, in fact said "10") and it was clarified over the telephone resulting in both numbers being recorded in the note. At the time that it was read to Mr Kitching she had recalled what it was her husband had said. Given that Laws Senior was reading the tyre size from the deflated tyre, it is most likely that the note discloses that kind of confusion and that in requesting the tyre Mrs Laws used the correct numbers. 17 Whatever be the case, I take the view that it is irrelevant, because it is clear that Mr Kitching did take it as a request for an 11.2 – 28. Mr Kitching's reply was that GWS did not have a tyre size of that kind and that the size was no longer made. He told Mrs Laws words to the effect that the tyre size that had replaced the 11.2 – 28 was a 12.4 – 28 tyre, which would do the same job. She was told the price of the tyre and an inner tube, a conversation ensued in which it was made clear that her husband would come and pick-up the tyre and tube and the conversation concluded. 18 After this telephone call Mrs Laws contacted her husband, prepared a cheque for the amount involved, namely, $530.00, picked-up Laws Senior and took him home. 19 Laws Senior collected some tools, returned to his neighbour's property and removed the wheel. He did this by deflating the tyre totally of air and water and taking the entire wheel from the tractor. 20 After removing the wheel and taking it home, he went to the premises of GWS at Windsor. He was familiar with GWS. 21 He informed the assistant at GWS that he had "come to pick-up the tyre which his wife had rung about". He collected the tyre and tube and handed over the cheque that had been prepared by his wife. The tyre was a Barum brand tractor tyre called a 12.4 – 28 TZ19 6 Ply. This discloses the type of tread and ply of the tyre as well as the size being 12.4 – 28. I will return later to the size of the tyre and the other relevant matters associated with its description. 22 As already stated the conversation between Laws Senior and Mr Kitching, who I accept was the assistant described as "the short guy behind the counter", was perfunctory. Laws Senior also spoke to the elder Mr Greentree (the then principal and managing director of GWS) relating to a previous order for a new tractor. The "invoice/receipt" was then signed and was retained by GWS and a copy was given to Laws Senior. 23 Laws Senior placed the tyre and tube in his vehicle and returned home. Transaction: Terms of Contract 24 As can be seen from the above, Mrs Laws ordered the tyre; Laws Senior took possession of the tyre and paid for it with the previously prepared cheque. After all of that had occurred, Laws Senior signed, and received an unsigned copy of, an invoice/receipt. GWS rely upon the terms on the reverse side of that document as terms and conditions forming part of the contract of sale. Mr Laws Senior described the document as a receipt. 25 GWS submits that the signing of the document has significance. But on the facts as I have found them, the signing of the document occurred not only after the parties entered into the contract, but after it had been completed. 26 The document was signed over the expression "RECEIVED THE ABOVE-MENTIONED GOODS AS ORDERED". In those circumstances the back of the document, which was not drawn to the attention of Laws Senior, does not form part of the contractual documents and cannot be relied upon by GWS. To the extent that authority is required for that proposition, see Olley v Marlborough Court Ltd [1949] 1 KB 532. 27 GWS relies on the judgments of the High Court in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 and Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451. Neither is of assistance to GWS. There is no evidence to suggest that Laws Senior understood the "invoice" contained contractual terms. On the view I take of the facts, the contract had been concluded (and performed) before anything was signed and, at that time, it could not have been intended to affect legal relations. Further, on its face, the signature acknowledges only receipt of the goods, and the signed face of the document does not draw attention to any terms on the reverse side. 28 While the placing of a signature on a document may lead to the reasonable conclusion that the document has significance, to do so after the completion of the contract and in circumstances where one is expressly signing as acknowledgement of past receipt of goods for which payment has already been made does not elevate the document to one which "objectively" defines the rights and liabilities of the parties or by which the parties are bound whether or not they are aware of its terms. Further, notwithstanding the past limited dealings between Laws Senior and GWS, there is no evidence of awareness from those dealings of these terms or that they were known to be "usual" or "customary" (or ought to be known). 29 Notwithstanding the above finding, I will deal with the terms relied upon by GWS. As noted above, on the back of the tax invoice are numbered paragraphs described as "Terms and Conditions of Sale". They are introduced by the following preamble: "Unless otherwise stated in our Quotation or agreed to in writing, it must be clearly understood that acceptance of your Order is subject to acceptance of the standard conditions printed below." 30 The above preamble confirms, in my view, my initial approach. The order had been accepted prior to the document coming into the possession of Laws Senior. Nevertheless, Clause 10 is in the following terms: "10. Limitation of Liability We shall not be subject to nor incur any claim, action or liability for consequential loss or damage, loss or use of profits. Our liability ceases on delivery to authorised third-party carriers." 31 As can be seen from the above, the purported limitation has two sentences. The last sentence deals with a limitation on damage for non-delivery in circumstances where delivery has been effected to an authorised third-party carrier. In the first sentence of the Clause, GWS deal with consequential loss and loss of profits. The Clause does not expressly seek to deal with a limitation on negligence and may not even deal with damage caused by the goods supplied. If the Clause, i.e. both sentences, is purporting to deal with the same subject matter, the Clause is dealing with consequential loss from non-delivery, or delay in delivery, and the loss of profits occasioned thereby. This seems to be the preferable construction. If it is not the proper construction, then the Clause is dysfunctional and illogical. In any event, if each sentence is to be taken separately, then the first sentence does not expressly deal with loss arising from a defect in the goods and/or from negligence and I do not construe it as so applying. The Fitting of the Tyre 32 After Laws Senior returned home with the new tyre (a Barum 12.4-28 TZ19 6 ply) he commenced the process of fitting the new tyre and tube to the rim. While initially the fitting of the tyre was a matter of some controversy, it was ultimately not in dispute (or not significantly) and could or should have been the subject of agreement. Nor, ultimately, was there much controversy concerning the appropriateness of the method chosen by Laws Senior to fit it. 33 Laws Senior removed the old deflated tyre and tube from the rim and cleaned the rim. This he did with a wire brush, removing residual rust and grime. The rim was a 9-inch rim, which, it seems, was one of the rims that were standard on Massey Ferguson 35 tractors of that era. It is the overwhelming evidence in these proceedings that the rim was in good condition and that Laws Senior had done a good job of cleaning it and had not damaged it. 34 The rim was placed on its side with the valve side facing up. Laws Senior applied soapy detergent to the flanges and on the side of the tyre. He then placed the lower bead of the new tyre over the upper rim flange. This was described as an easy process and the tyre "fell over" the upper rim flange. 35 As one would imagine, once fitted, and certainly once inflated, a large agricultural tyre and rim is a heavy article. It was necessary, because of the weight of the article, to place the rim and tyre inside the back of his vehicle before inflating it. The vehicle was described in graphic details, and there are photos, but it suffices for my purposes to describe it in the slang term used during some of the evidence, namely as a "troop carrier". It was a four-wheel-drive with a passenger cabin at the front of the vehicle and the back of the vehicle was enclosed with bench seats along the sides of the vehicle running from front to back. 36 Having placed the inside bead over the top of the rim (the top being, as it was lying on the ground, the outside rim once the tyre and wheel were fitted), Laws Senior placed the inner tube that he had purchased inside the new tyre and fitted the valve through its outlet on the wheel rim. There was then some difficulty in fitting the upper or outer bead over the outer wheel rim. It was necessary for both Laws Senior and Laws Junior to stand on the tyre and also to use tyre levers and a rubber mallet. The evidence discloses that none of the above action was inappropriate and no damage was occasioned to the tyre. I find, to the extent necessary, that the method of placing the inner tube into the tyre casing prior to manipulating the outer bead into the confines of the wheel rim was reasonable and appropriate and did not damage the tyre or the inner tube. 37 Laws Senior and Laws Junior then placed a plank leading into the rear compartment of the troop carrier and rolled the assembled wheel up the plank into the rear compartment of the vehicle. 38 The evidence in these proceedings discloses that it is common, perhaps almost universal, for the drive wheels of tractors to be inflated with a combination of water and air. The water adds weight to the tyre giving it greater stability and better traction. 39 Laws Senior then removed the valve and placed a hose over the valve housing. The hose fitted fairly snugly and water was then used to fill the tube within the tyre. As the water filled the inner tube, the tyre started to seat. In this context, the seating of the tyre was the process where the tyre expands and the beads of the tyre sit against the wall of the wheel rim without a gap. 40 At this stage, the tyre was placed more or less upright in the back of the vehicle with the valve housing at the furthest distance possible from the ground. In evidence, using the positions on an analogue clock, this position was described as 12 o'clock. As a consequence of this process air pressure would necessarily build up in the tyre tube and Laws Senior periodically stopped the flow of water through the hose, removed it from the valve housing, and allowed the air to escape. 41 When the tube had been more or less filled with water, the tyre was rolled so that the valve was at the 11 o'clock position. This caused water to be released at which point the tyre was rolled back to the 12 o'clock position. The valve was then refitted to the housing and Laws Senior pumped air into the tyre at or below 15 psi. The air pressure was intermittently checked with a pressure gauge and the evidence, which I accept, is that no stage did the air pressure, as measured accurately at the valve, exceed 15 psi. 42 Laws Senior gave evidence that he could, during this process, see both beads and that he was satisfied that the tyre was normally seated on the rim. I will briefly return to this at a later point in this judgment. 43 Laws Senior removed the air hose from the valve. He and Laws Junior moved the tyre slightly to allow stops to be placed to prevent it from moving during its return to the tractor. The tyre and inner tube suddenly ruptured, exploding with such force that the rim was propelled outwards, with force, striking both Laws Senior and Laws Junior. 44 Laws Junior, who was born on 3 August 1966 and was 32 at the time of the accident, was at the rear of the vehicle at the time of the explosion and was struck in the head and flung out of the vehicle onto the concrete. Laws Senior who was at the side of the tyre was also flung away sustaining less severe injuries, predominantly to his right arm. 45 While there was initially some controversy concerning the method of fitting the tyre utilised by Laws Senior, such controversy dissipated. While there remained some minor aspects of dispute, GWS utilised the services of an expert, Mr Keith Edward Hook, who described the proper method of tyre fitment. There were two differences between the method of fitting adopted by Mr Hook and that described by Mr Laws Senior. Those differences related to the time at which the inner tube was fitted and the ease with which the upper or outer bead fitted over the upper or outer rim. When the tyre was being fitted by Laws Senior (together with Laws Junior), it was "so stiff that the body weight of both plaintiffs together was barely sufficient to push the outer face of the tyre down into the bead well. It certainly did not go over the rim through the use of a hammer [only], a tyre lever and hammer was required." (Supplementary Report of Mr Colin Simpson, which I accept as a proper summary of the evidence that I accept in this regard) 46 Essentially, the method of fitting adopted by Laws Senior was the same as, or so similar as to have no significant difference from, the method adopted by Mr Hook. I will return to the "stiffness" of the tyre when Mr Laws Senior was fitting it. With the exception of safety precautions, the method of fitting the tyre, described by Laws Senior, disclosed no want of care by him and discloses no obvious negligence. I bear in mind that Laws Senior was not a trained tyre fitter and had little or no experience in fitting tractor tyres. He had helped change a rear tyre of a tractor once when he was very young. He had changed some car tyres and possibly some truck tyres over the years, but not many. He had never been trained in tyre fitting. He had no knowledge or understanding that the tyre could fail and explode during fitting and had no knowledge that serious injury could ensue. His only understanding of the consequences of an improperly seated tyre was the effect it would have on the capacity to drive (e.g. wheel wobble). 47 Further, Mr Laws Senior had no knowledge of any other safety precaution necessary or desirable including the use of a remote filler (i.e. a filler at the end of a longer arm to enable the worker to be away from the tyre), or the use of a cage, or the restraining of the tyre by bolting it either to the tractor or to some other fixed point. Further, he was unaware that the tyre ought not to be changed by anyone other than an experienced and trained tyre fitter. Were he aware of one or more of these factors, or if he should have been, his actions in fitting the tyre himself may have been negligent. However, I find that he was not aware of any one of these factors; nor, reasonably, should he have been; and he was not negligent. There was no negligence or want of due care by Mr Laws Senior such that he is liable to contribute to the damage suffered, if actionable, by Mr Laws Junior or liable to have his own damages reduced on account of contributory negligence. The Size and Specifications of the Tyre 48 I have described above the size of the tyre originally fitted to the tractor and the size of the tyre provided by GWS. There is no doubt that Barum no longer manufactured an 11.2-28-size tyre. While, if I were required to conjecture, I would guess that no manufacturer produced a tyre of that size, there is no evidence to that effect or that goes so far. 49 It is necessary to explain the rim size of 9 inches, for a W (or Wide) rim. It is the distance between each of the outer flanges, or, otherwise expressed, the distance between each of the opposite rim edges, across of the thickness of the wheel. Another measurement is the rim diameter, but for present purposes it is unnecessary to deal with that. 50 The difference in tyre size between an 11.2-28 tyre and a 12.4-28 tyre is the width of the tyre between the beads, or inner edge. In this case, the difference is 1.2 inches. The "28" refers to the diameter of the tyre and it is, for current purposes, irrelevant. 51 Barum is a Czech manufacturer that had a controlling interest in Motokov. It manufactured for the European market and also for overseas, including Australia. There is no evidence that the tyres marketed in Australia were identical to the tyres marketed in Europe. 52 As earlier stated the wheel on this tractor was a 9-inch W rim. European standards published in 1998 and 1999 suggested that a 12.4-28 tyre manufactured by Barum could fit a 9 inch W rim. Australian standards suggested otherwise. Australian standards published in 1998 and 1999 (and continuing through to 2006) approved W10, W10H and W11 as rim sizes for a 12.4-28 tyre, but did not approve a W9 rim (the size fitted to this tractor). 53 Further, Barum itself produced recommended rim sizes for its tyres. In 1998, the approved rim sizes for a 12.4-28 tyre did not include a W9 rim. In 1999 Barum published its catalogue and for the first time for it in Australia approved a W9 rim as appropriate for a 12.4-28 tyre. Uninformed by evidence, one might assume that if a W9 rim was approved in 1999 it was equally appropriate, for that size tyre, in 1998. However the evidence disabuses one of that assumption. Mr Simpson, an expert whose evidence I accept in this regard, said: Q: "Do you understand the question, Mr Simpson? In other words, the question, as I understand it, is: Can a tyre of a particular size be made suitable for a smaller rim by change in the manufacturing process or design of that tyre?" A: "Yes." Q: "So, whilst on the earlier brochure it was not a suitable tyre for a 9 inch rim, on the latter it was?" A: "Yes." Q: "And what could have caused that change of view was an alteration in the tyre itself?" A: "Yes." 54 Thus, whatever the assumption that might ordinarily be made, the documentary evidence before the Court establishes that for the rim size owned by Laws Senior, as at 1998, Barum did not approve a 12.4-28 tyre. Nor did The Tyre and Rim Association of Australia. There is no evidence that, for Barum tyres sold in Australia in 1998, there was approval for a 12.4-28 size to fit a W9 rim. Indeed, the evidence is to the contrary. The evidence establishes that in 1998 a Barum 12.4 – 28 tyre was not recommended for W9 rim. 55 As earlier stated, Mr Laws Senior purchased the tyre on 10 March 1999. However, the tyre was supplied to GWS by Motokov in November 1998 and obviously received by Motokov prior thereto and manufactured even earlier. Motokov, in its first submissions, relied upon the change in approval, and its notification of GWS, to apportion to GWS any damage arising from the fitting of an inappropriate tyre. 56 This discrepancy, evidenced inter alia by the changing recommendations of Motokov, in my view, accounts for the difference in the ease with which the upper or outer bead or edge of the tyre would fit over the flange or outer edge of the rim when performed by Mr Laws Senior and by Mr Hook. The stiffness, as earlier described, may be the result of the different manufacturing specifications. It further accounts for the reason that in 2003, when seeking to duplicate the apparent problem, it could not be done. By 2003 a 12.4-28 tyre was manufactured to specifications, which allowed its approval on a W9 rim. This finding is confirmed by comparison of the three tyres (Exhibit R), which, admittedly to the untrained eye, shows the stark difference between an 11.2-28 and a 12.4-28, but also shows a noticeable difference between a 12.4-28 tyre manufactured in 2003 compared to the tyre that exploded. That difference between the two tyres, each 12.4-28, is not a difference that would be displayed in the measurement between the inner and outer bead edge. 57 Therefore, at least in relation to Barum tyres, when GWS advised Mrs Laws, and subsequently Mr Laws Senior, that the 12.4-28 tyre was an appropriate or approved one, the advice was based upon incorrect information. This does not mean that, in this regard, GWS were negligent. Nor does it mean that damage was occasioned by reliance upon the advice. 58 An issue arose in the course of these proceedings, as to the information that Motokov had supplied GWS. There was an understandable incapacity, amongst staff at GWS, to recall every brochure supplied by Motokov. I find, on the balance of probabilities, that Motokov supplied GWS with a catalogue for agricultural tyres each year or, at least, with each change in information and/or specifications. The brochure, which is in evidence, supplied in relation to 1998, as earlier stated, did not have the 12.4-28 tyre as an approved tyre for a W9 rim. However, the brochure for 1999, which I find was available at or immediately after the beginning of 1999, did approve that size tyre for that size and type of rim. I find that Motokov expected, and it was reasonable to expect, that a dealer, on receiving a new brochure, would discard the old brochure and use only the new one. This was the evidence of GWS that I accept. Motokov must have known, when it supplied the new brochure, that dealers would use it to determine the appropriateness of supplying a tyre manufactured at a time and to specifications inconsistent with the specifications of the tyres to which the advice in the brochure related. The Physical Cause of Tyre Failure 59 As one may infer from the foregoing, the manufacture of a tyre and its composition can vary significantly. Even tyres of the same size (as formally measured) may differ significantly, not only in the obvious aspects such as tyre tread. Differences, which are latent, may be more significant than the variations, which are obvious to the eye. Variations may be to the thickness and therefore stiffness of the rubber composition and, relevantly for the issues with which the Court is here concerned, there may be differences in the composition of the bead. 60 The bead of the tyre is that part of the tyre immediately adjacent to the hole in which the rim of the wheel fits. In both a tubeless and tubed tyre, the bead should be the strongest part of the tyre. The proper seating of the tyre (being the placement under pressure of the bead of the tyre against the flange of the rim of the wheel) provides a constant support to withstand the pressure associated with inflation of the tyre. The bead in the Barum 12.4-28 TZ 19 6 ply was a "weftless bead". Other kinds of bead exist. Two of them are a single bead wrap and a cable bead wrap. 61 Mr Ochs gave evidence concerning the differences in these beads. Mr Ochs was a most impressive witness. He is a professional engineer who was employed for many years by Michelin. His functions at Michelin included evaluating failures in tyres and the design of Michelin tyres first sold to equipment manufacturers. He is an expert in the very areas that concern these proceedings and particularly in tyre failure analysis. He has particular experience in all types of tyres including in relation to bead failure in truck, farm and earthmoving tyres. He was called by Mr Laws Junior and was interposed because of his need to return to New York. During the time that he was engaged at Michelin his duties included engineering manager for the design, development and construction of production facilities of tyre cord, bead wire bundles and tyre components. 62 I accept, fully, the evidence of Mr Ochs. He described in detail the manufacturing process of tyres, including agricultural tyres. He also discussed the relative merits and demerits of the three types of bead referred to above. 63 The weftless bead (the type on the instant tyre) is fabricated by a process involving several wires (eight), forming a ribbon, that are wound in an overlapping configuration several times (seven) to complete a hoop. This is more formally called a weftless bead of 56 wires with an eight-wire overlap. 64 A programmed bead is fabricated by using one wire continuously wound for 56 wraps with an overlap of the outside end. 65 A cable hoop bead is formed by winding a continuous wire over a wire core and adjoining the wrap wire ends with a ferrule. 66 For the weftless bead and the programmed bead, each wire is usually surrounded with insulating rubber from an extrusion head or wrapped in some other manner. This is done to prevent unravelling during the curing process. In each case, the bead is formed by passing the wires through an extrusion head and then winding them around a mandrel of an appropriate diameter. With a cable hoop, the rubber extrusion is not necessary as the hoop maintains its shape as a result of the connecting ferrule. 67 In this case, according to Mr Ochs, the tyre failure was confined to the bead. I accept this evidence. Mr Ochs noted that the inflation pressure was at or below 15 psi; there was no evidence of mechanical damage at the point of failure; there was no reported evidence of inclusions or structural defects in the wire ends at the point of rupture; the wire ends (56 of 64) indicate a failure in tension (cupping and coning-necking). Eight of the wire ends were mechanically cut which, according to Mr Ochs, would indicate a weftless bead construction of an eight-wire wide ribbon wound seven times around itself (on a mandrel) with an eight-wire overlap. Mr Ochs concludes that the point of bead wire failure (rupture) is at the location of the beginning of the overlap of the interior diameter of the bead wire bundle. This is the location, he says, of the step or discontinuity created by the beginning of the eight-wire ribbon. This would be the location of the start of the wire ribbon wrapping process. In lay words, it is the inside end of the earlier-described weftless bead ribbon at which the bead and the tyre failed. 68 The Court directed that the engineering experts confer in a conclave. The parties were invited to suggest, and agree upon, a series of questions that would resolve the perceived differences between the experts. The questions and answers were admitted into evidence as Exhibit D. GWS objected to its admission into evidence and particularly objected to the admissibility of Question L in that Exhibit. 69 It is necessary to deal briefly with the objection. The objection to the question and answer was said to be based upon "the rule of court that prohibited the tendering of expert evidence unless a report has been served in advance: UCP r 31.18." The submission of GWS is that because the conclave "was not by consent, the report of the conclave is to be regarded as a piece of expert evidence, and are (sic) subject to the rules of Court with regard to that evidence: UCP r 31.25(6)." 70 Natural justice requires that, in proceedings before a court such as the present, any evidence admitted against a party may be the subject of contradiction and testing by that party. Subject to that constraint of natural justice, and the rules of evidence, the method by which material comes before the court is generally a matter for the court. In particular, the Uniform Civil Procedure Rules are promulgated to effect the purpose described in section 56 of the Civil Procedure Act 2005 (NSW). The terms of section 56 of the Act prescribe an overriding purpose being to facilitate "the just, quick and cheap resolution of the real issues" in proceedings. That purpose must be given effect in exercising any power under the Act or the rules or in the interpretation of any provision. The terms of section 14 of the Act empower the Court to dispense with any requirement of the rules if the Court is satisfied that it is appropriate to do so in the circumstances. 71 More particularly, Division 2 of Part 31 of the Rules deals with expert evidence and expands upon the purposes with particular reference to that Division. Rule 31.17 recites that the main purposes of the rules that follow are, relevantly, to ensure that the Court has control over the giving of expert evidence; to restrict expert evidence to that which is reasonably required to resolve the proceedings; and to avoid unnecessary costs and other purposes. The Division entitles the Court to make directions as to the reducing of evidence by experts, and requires the party to seek those directions. Rule 31.19 provides that expert evidence may not be adduced unless such directions have been sought and may not be adduced in a manner that is not in accordance with the directions given. It is subjected to the proviso that the Court may otherwise order. 72 Rule 31.20 empowers the Court to give such directions that it considers appropriate as to the use of expert evidence. Directions that may be made by the Court under that rule deal with the service of reports; restricting the evidence that may be adduced, including the number of experts that may be called; requiring the appointment and instruction of a court-appointed expert; and, most relevantly, requiring experts in relation to the same issue to confer. Those directions may be made "at any time": UCP rule 31.20. Reliance by GWS on the UCP Rules, to suggest that the report of a conclave ordered by the Court is inadmissible, is misconceived. Subject to the rules of natural justice and the rules of evidence, the Court governs its own procedure. 73 Further, the provisions of Schedule 7 to the Rules, being the code of conduct for expert witnesses (previously SCR Schedule K), require an expert to comply with the direction of the Court and to confer with another expert witness. I admitted the report of the conclave and I accept its joint opinion. 74 The questions and answers should be recited. Exhibit D is in the following terms: " A. Q. Did the pressure gauge employed by Thomas Laws provide an accurate reading? A. On the available evidence, the pressure gauge probably provided an accurate reading. B. Q. Was the compressor used by Thomas Laws to inflate the subject tyre regulated to deliver pressure of up to 75 psi and no greater? A. On the available evidence, the compressor used by Mr. Thomas Laws was probably regulated to deliver a pressure of up to 75 psi and no greater. C. Q. Absent defect in the tyre, what was the burst pressure of the subject tyre? A. From the F.E.A. analysis, and with a properly seated bead, the burst pressure was of the order of 120 psi. D. Q. What was the likely cause of failure of the subject tyre? A. Likely cause of failure of tyre was localised over-stress of bead wire bundle at the wire overlap, caused by a tube-pinch-induced bead 'hang up'. E. Q. Assuming no damage was occasioned to the first bead fitted and that the tyre was filled with approximately 80% water and 20% air to a pressure of 15 psi, is it likely that failure of the said bead was due to a tyre defect? If the answer is no, what was the likely cause of failure on those assumptions? A. For the given assumptions and in the absence of any other contributory factor a failure of the tyre bead would have been due to a tyre defect. However, it is considered that the tyre was not defective, but probable that during inflation using water, the tyre was exposed to significantly higher pressure than 15 psi, sufficient to initiate failure as in D. above. F. Q. Should the manufacturer have endorsed upon the tyre a warning of the lethal danger arising out of fitment and tyre changing? A. Professor Churches – 'Not obligatory in Australia but highly desirable'. Mr. Ochs – 'Yes, standard in North America since at least mid 1980's'. Mr. Simpson – 'Yes, manufacturer is expert in knowledge that pressure and fitment errors can be dangerous even lethal'. Mr. Anderson – 'Personally I would like to see it but it is a Community Standards issue'. G. Q. What was standard industry practice as to changing and fitment of tyre in 1999? A. (i) In 1999 it was standard industry practice to employ trained tyre fitters to fit agricultural tyres. (ii) The general fitting procedures illustrated in the video of Mr. Hook represent good practice. However, there were clear failures to meet the personal safety requirements of the relevant NOHSC recommendations and also Barum recommendations relating to pressure monitoring and operator proximity to the unrestrained wheel and tyre assembly during inflation. H. Q. Was fitment and changing of a tractor tyre a specialist job that ought to have been undertaken by an appropriately qualified and experienced technician? A. Yes. I. Q. Was it appropriate to supply the tyre to Mr. Thomas Laws without instructions and warning of the relevant dangers associated with tyre changing, fitment and inflation? A. No. J. Q. If the answer to I. is no, what notice, warnings and instructions ought to have been given? A. Supply instructions sheet as supplied by Barum and appended to Deloitte Touche Tohmatsu letter of 24th June, 2003 to Lamrocks, Solicitors. K. Q. Was it appropriate to recommend a 12.4 – 28 tyre to replace an 11.2 – 28 tyre? A. The selection of the tyre and rim combination which is outside Tyre and Rim Association Standards is not recommended but it is noted that latest 'Barum Data Sheet' lists W9 rim (ie nine inch rim width) as 'admissible' for their 12.4 x 28 tyre. As this tyre was significantly larger than that originally fitted, for vehicular behavioural reasons, it should have been sold as a pair. L. Q. Was the fitting of a 12.4 – 28 tyre to a 9 inch rim causally related to the failure of the said 12.4 – 28 tyre on inflation of same? A. For an untrained and inexperienced fitter, the fitting of a 12.4 x 28 tyre to a 9 inch rim may increase the probability of failure due to difficulty of second bead seating and increased probability of tube pinching. It is unlikely that an experienced and trained tyre fitter would have this problem." 75 The four experts who participated in the conclave were Mr Ochs, Professor Churches, Mr Simpson and Mr Barry Anderson. Mr Anderson was qualified by GWS, Motokov qualified Professor Churches and both Mr Ochs and Mr Simpson were qualified by Mr Laws Junior. There was some further evidence adduced from experts on liability. 76 From the expert and other evidence, including Exhibit D, I make the following findings: i. The tyre provided by GWS, which was provided to it in 1998 and manufactured in or before 1998, was not a tyre which, at the time of its manufacture, was recommended in Australia for use on the wheel rim being used by Mr Laws Senior; ii. There is a noticeable difference between the 12.4-28 tyres manufactured in or before 1998 and of those manufactured in or after 1999. That difference is the width of the tyre looking at the outer circumference; iii. The 1998 manufactured tyre supplied by GWS, because of its width and "stiffness", made it a more difficult tyre to fit and, more importantly, a more difficult tyre on which to observe whether the tyres had "seated" properly; iv. In the hands of an expert, in this context an experienced and trained tyre fitter, the difficulty with the 1998-manufactured tyre would not, of itself, have prevented the tyre being fitted to a W9 rim, even though it was not recommended; v. The 12.4-28 tyre should not have been sold by GWS otherwise than as one of a pair of tyres in circumstances where it was to replace an 11.2-28 tyre; vi. The method of fitting the tyre adopted by Mr Laws Senior was an appropriate method, with the exception of the absence of appropriate safety procedures of which he was unaware; vii. In fitting the tyre, and particularly while inflating the tyre with water, the combination of the larger sized tyre and the lack of expertise of Mr Laws Senior combined to render unnoticeable a tube-pinch-induced bead "hang up", causing over-stress of the bead wire bundle at the wire overlap. This application of differential pressure on the bead wire breached the integrity of the bead wire and thereafter rendered the bead ineffective in containing the tyre within the rim; viii. When the tyre was inflated with air to 15 psi, the tyre, which in accordance with the above had not been properly seated and the bead of which had been ruptured, exploded, causing injury; ix. There was no warning provided by GWS to Mr Laws Senior at the point-of-sale and there was no warning provided by Motokov on or with the tyre; x. While alternative methods of bead construction may have rendered the incident in question less likely, the manufacture of the bead, and of the tyre, did not produce an inherently defective product except when fitted by an inexpert or inexperienced person; xi. Even if an 11.2-28 tyre had been sold (or a 12.4-28 tyre made to post 1999 specification) it should have been fitted by an experienced and trained tyre fitter; xii. When a tyre is being fitted to a rim, it is inherently dangerous and is required to be fitted by an experienced and trained tyre fitter utilizing appropriate safety measures. The Tractor Tyre As a Dangerous Product 77 As is made clear by the experts in their answers to the questions posited to the conclave, it was standard industry practice to employ trained tyre fitters to fit agricultural tyres. It was a specialist job that ought to have been undertaken by an appropriately qualified and experienced technician. 78 It is for the Court to determine whether it was appropriate to supply the tyre without instructions and warning of the relevant danger. The determination of appropriateness depends upon the existence of a duty of care and its content, together with the determination of that which amounts to a reasonable response thereto. 79 I have found that Motokov issued catalogues from time to time and, in particular, issued catalogues to GWS in 1999 and for the year 1998. 80 Some of the catalogues issued by Motokov to retailers make clear, and the evidence is overwhelmingly to the effect, that tyre fitting was a specialist job, to be performed by appropriately qualified and experienced technicians, in the absence of which the task was exceedingly dangerous with a real risk of serious injury and/or death. 81 This is not information and knowledge that is confined to experts. Any retailer of Barum tyres, who bothered to read the catalogue provided by Motokov, would have actual knowledge of these risks. The Barum booklet available at the beginning of 1999 (Exhibit 3), and in the possession of GWS at the beginning of 1999 and prior to the sale to Mr Laws Senior, said this: " Instructions for Mounting Important Note The mounting and inflating of the tyre could be dangerous. Therefore the fitting should be accomplished only through the trained person and the following instructions must be observed: 1. Tyres should be the correct size to vehicle type and suspected load capacity. Rims should be a correct size and in good condition (undamaged and free from corrosion). 2. The mounting should be accomplished in safely (sic) conditions on the plain ground (sic). . . . 11. Make sure that both beads are on the bead seats and began (sic) with inflation. Inflation should be continually watched. The tyre and the wheel are during the inflation laying flat on the floor, either fixed to the floor, or placed in the safety cage.. . . From safety reasons do not stay during the inflation directly in front of the tyre. The length of the hose between the tyre and the pressure gauge should allow cca 5 m. distance." 82 As I have found that this catalogue was in the possession of GWS prior to the sale of the tyre to Mr Laws Senior, GWS had reason to know that the fitting of a tyre to a rim by a non-specialist was fraught with danger and had reason to know the steps that could be taken, and should be taken, to minimise or avoid the risk. 83 Even if GWS had not received the catalogue in question, previous catalogues had similar statements and retailers were otherwise aware of these issues. While the catalogue suffers from a poor translation of what was obviously a different original language, the import of the warning as to the risks is clear. 84 Further, if GWS had not received any catalogue, it had reason to know that the fitting of a tyre to a rim was dangerous, and inherently so. In 1999, the then managing director and principal of GWS, Mr Charlie Greentree knew of the dangers. Not only did he have reason to know of the dangers of fitting a tyre, he had actual knowledge. He gave evidence to the effect that he knew that, because of the danger involved in the task, in order to fit a tyre somebody was required who had to be trained to do it (Transcript page 1040). He said: "Q. And yesterday you told his Honour that it was not until three to five years ago when you received the Mitas document that you were aware of the necessity to have professional people fit tyres and the dangers attached to the fitting, is that correct? A. No, we've always had professional people fit tyres. Q. No, no; of the necessity to have professional people fit or have you always known that you must? A. That's why we've always done, that's why GWS have never done tyre fitting. Q. Because of the dangers attached to it? A. Yes. Q. Well, why didn't you inform your customers before 1999 who bought a tractor that they were dangerous? CAMPBELL: The tractor tyre? WITNESS: Well, we just assume that people who come to buy a tractor tyre and not ask about fitting instructions know how to do it. GRAY: Q And yesterday you said it wasn't until after receiving the Mitas brochure that you would tell perhaps one in 10 - I'm summarising your evidence - tell one in 10 persons of the need to have a tyre professionally fitted? A. Yes. Q. So even though you had that warning from Mitas you say you still didn't tell people? A. That's only in the latter years, after the accident. Q. That is, until after you got the Mitas document? A. That's right. Q. And even after you got the Mitas document it was only one in 10 that you would tell? A. Yes. Q. To get the tyre professionally fitted? A. Yes. Q. Would you presume that the other nine would know? A. Yes." 85 In 1999, Mr Charlie Greentree's son, Mr Mark Greentree, was the Assistant General Manager and later became the general manager. He also considered this issue at or before the time of the accident and possessed actual knowledge that the fitting of a tyre to a rim was dangerous and was required to be performed by specialists. 86 GWS was not a specialist tyre dealer. It sold tractors and spare parts for tractors, including tyres. It sold about 50 tractor tyres per year and had done so for approximately 20 years. It had ready access to two specialist tyre-fitting services for the purpose of fitting tyres it may sell. 87 At the time that GWS sold the tyre to Mr Laws Senior, there was actual knowledge in GWS of the dangers associated with the fitting of a tyre. While Mrs Laws had provided the size of the tyre to be replaced, it was on the basis of the GWS recommendation, and only that basis, that this 12.4 – 28 tyre, recommended by GWS, was used. Mr Laws Senior (and Mrs Laws and Mr Laws Junior) directly or indirectly relied upon the advice on the tyre size and its appropriateness. 88 GWS at no stage asked any questions about the size of the rim to which the tyre was to be fixed. Nor was Mr Laws Senior asked about whether water would be used as ballast in the tyre. (Indeed, it seems as if the use of water was assumed.) No offer was made to fit the tyre or to arrange for its fitting. No advice or warning was given in relation to the need for the tyre to be fitted by specialists or trained persons. Further, no explanation was given as to why it was necessary, or even desirable, to use trained or specialist tyre fitters. 89 Mr Charlie Greentree was not only aware, at or before the date of the sale and accident, that tyres ought to be professionally fitted, he conceded that, even after the accident, nine out of 10 times he sold such tyres to customers, including farmers, without insisting or advising that they be fitted by a specialist: transcript at page 1045. Further, notwithstanding his knowledge of the dangers, Mr Greentree did not consider that GWS had any obligation to inform a purchaser, nor any obligation to determine precisely the nature of the danger that may be posed to his clients: Transcript 1052, 1054. 90 On the other hand, Mr Laws Senior was totally unaware of the dangers associated with the application of pressure in the fitting process. He received from GWS no advice or instruction as to how the tyre ought to be fitted, by whom and why. Nor did he receive such advice from Motokov. There was no warning on the tyre itself and no accompanying documentation with a relevant instruction or warning. The evidence discloses that the process of embossing a tyre with a warning occasioned an initial, extremely minor, one-off cost and nothing more. The evidence discloses that such a process was inexpensive and easily achieved. Such warnings were common on tyres at that time and mandatory in a number of advanced countries. The initial one-off cost was a fixed cost that would be absorbed in the cost of the tyre and made no difference to the cost of production. 91 Further, the provision of printed material, either or both by sticker attached to the tyre, or small booklet also attached, with a warning or written material relating to the dangers, would have also been an inexpensive and easily achieved process. 92 It is clear that Mr Laws Senior was totally unaware of the risk on which he was embarking and the danger associated with fitting the tyre himself. It is true, as submitted by GWS, that the provision of a warning would not, itself, ensure adherence to the safety requirements. Notwithstanding the warnings on cigarettes, people still smoke. But they do so in the knowledge of the danger. 93 I accept that one should treat with extreme caution evidence from a witness as to what would have been her/his reaction to different circumstances: Berrigan Shire Council v Ballerini [2005] VSCA 159 per Nettle JA citing with approval Arnison v Smith (1889) 41 Ch D 348 at 369. Here evidence was adduced from Mr Laws Senior, concerning his reaction to a warning, if it had been given, namely, that the process would not have been undertaken. 94 However, here the evidence also discloses that Mr Laws Senior was a person concerned with ensuring the safety of himself and those around him. His description of the method that he utilised to fit the tyre and rim and to lubricate it in such a way as not to render slippery the part of the tyre on which he, or his son, may be required to stand exemplifies that attitude. While I will deal with the credibility of the witnesses at a later point in this judgment, Mr Laws Senior was a sincere, truthful witness, prone to understatement, whose evidence I accept, and, in particular, I accept that had he been aware of the dangers involved in the fitting process, he would not have undertaken the task himself and would have arranged and waited for a specialist tyre fitter to perform it. 95 I earlier noted that Mr Laws Senior was not unfamiliar with GWS. He had bought parts from them before and was in the process of purchasing a new tractor. Mr Greentree, likewise, and GWS were not unfamiliar with Mr Laws Senior. It was aware that Mr Laws Senior was not a specialist tyre fitter. If the tyre sold to Mr Laws Senior were to be fitted by him, it presented a known danger and a risk of serious injury or death. The danger and risk were known to GWS. 96 The tyre, in the hands of Mr Laws Senior, if used for its ordinary purpose and fitted by him, was an inherently dangerous product and known to be so by the vendor, GWS. Existence, Content and Breach of Duty of Care of GWS 97 As the vendor, the standard to be adopted is that of a reasonable retailer in the position of GWS. No general responsibility is imposed on a vendor of goods for all damage or injury arising from the use of the goods. More particularly, no liability in negligence is imposed on a vendor of goods simply because of the sale and/or the relationship of the vendor and purchaser. 98 It is tempting, because of their necessary interrelationship, to confuse the existence of a duty of care and its content, if it exists. In dealing with the relationship of vendor and purchaser, there is, in these circumstances, a duty of care owed by the vendor to the purchaser. Difficult questions arise in determining the content of that duty. 99 In the textbook examples, one is reminded that one does not expect a supermarket to be responsible for detecting, or preventing, a dead bee in a can of soup. There are, of course, early examples in the law of negligence of the duty of care bypassing the vendor and imposing liability on the producer for snails in lemonade bottles, for example. 100 Neither example is inconsistent with the existence of a duty of care imposed on the vendor. They seem to be examples of the limitations on the content of that duty. It cannot be appropriate to impose upon the vendor of goods a legal liability for a defect in the goods, which was not known and could not be known, and which was not caused by the vendor's own conduct. 101 The content of the duty of care owed by a vendor to a purchaser was discussed at length by the Court of Appeal in McPherson's Ltd v Eaton [2005] NSWCA 435. While both Mason P and Hodgson JA agreed substantially with the reasons of Ipp JA, each expressed, in his own words, the content of the duty owed. His Honour the President, citing the judgment of the Court of Appeal in Laundess v Laundess (1994) 20 MVR 156, said: "[1] I have had the privilege of reading in draft the reasons of Ipp JA. His Honour demonstrates why the non-manufacturing distributor of goods that is ignorant of a dangerous defect does not owe the same duty of care as that of a manufacturer. There must be 'something more' ( Laundess (1994) Aust Torts Rep 81-316 at page 61,876 per Mahoney JA)." 102 Later in his judgment, Mason P deals with the content more particularly and says: "[17] In my view, it is both feasible and just to impose a particular content on the distributor's duty of care, confining it to one requiring reasonable care in the avoidance of personal injury by reference to what the distributor knows or has reason to know. I later explain why this more stringent duty does not apply to the distributor who renders the product harmful by its own conduct. The meaning of 'reason to know' is also addressed below. . . . [22] But most distributor situations involve no more than omission by the distributor to disclose or warn about some inherent quality of the product distributed. The present case is an example. Unless one posits a general duty of care and concludes that the distributor's conduct was reasonable in the circumstances, something more is required for these situations before a duty of care can be found, essentially for the reason adverted to by Professor Stapleton in her Sainsbury's example. It offends common morality to find a distributor liable for nothing more than selling a dangerous product, at least if the danger of the product (generally, or in the particular case) is not known or within the 'reason to know' category as regards the distributor. Because it is not possible to posit why the duty should ever be wider, then it is appropriate to distinguish the approach endorsed for the 'diving cases' and to state a duty with the more confined content. [23] The difference between 'ought to know' and 'has reason to know' is more than semantic in the present context. It is the law's endeavour to identify the limited content/scope/extent of the relevant duty in circumstances like the present. The formulation 'has reason to know' appears to capture the appropriate scope of duty, at least outside the situation of the distributor whose own activities have contributed to the harmful potential of the product (see generally Restatement of the Law, Torts 2d at §401; Elliott v Bail Bungy Co [2002] NSWSC 906 (at [24)-[28]); . . . The distinction is explained in Restatement 2d (at §401): The words 'reason to know' … are used to denote the fact that the actor has information from which a person of reasonable intelligence or of the superior intelligence of the actor would infer that the fact in question exists or that such person would govern his conduct upon the assumption that such fact exists. The words 'reason to know' do not impose any duty to ascertain unknown facts, and are to be distinguished from the words 'should know'. [24] This formulation of the content of the duty of reasonable care is preferable to describing it in terms of a 'duty to warn'. For some situations, warning would be an inadequate response. Reasonable care with reference to some dangers would require the product to be taken off the shelves. [25] Fifthly, there may be a need in some cases to distinguish between different categories of purchasers. A child who purchases an inflammable substance 'with which a reasonable man, taking thought, would have foreseen that the child was likely to do himself an injury' ( Yachuk v Oliver Blais Co Ltd [1949] 2 All ER 150 at 153 per Lord du Parcq) may generate a categorically different duty to that owing to an adult purchaser." 103 The reasons for judgment of Hodgson JA in McPherson's, supra, also agree substantially with the reasons of Ipp JA. Justice Hodgson said: "[27] I agree that a retailer of goods has no duty of care to persons who might ultimately be affected by those goods, unless there is some additional factor, generally a factor associated with the creation of risk or knowledge of risk involved in the goods. This is because there is, in my opinion, a world of difference between originating and putting into circulation something which otherwise would not exist, and merely being one of a number of persons involved in the distribution of something originated by someone else." 104 In his reasons for judgment in McPherson's, supra, Ipp JA analyses the authorities relating to the existence of a duty of care between vendor and purchaser. In doing so he refers, inter alia, to Imperial Furniture Pty Ltd v Automatic Fire Sprinklers Pty Ltd [1967] 1 NSWR 29 and extracts a passage from the judgment of Jacobs JA at 38 to 39 part of which says: "An analysis of the cases on things dangerous in themselves with all the variety and variation which appear in those cases leads me to the conclusion that a thing is dangerous in itself when the danger of such a thing is of such public notoriety that a defendant will not be heard to say that he in particular did not know the danger. The notorious danger may arise spontaneously or only when the thing is used in some way in which it may reasonably be foreseen that it may be used, but in any case the danger must be publicly notorious. If a thing is notoriously dangerous it is in the same position as a thing known to the defendant to be defective. In either case it is not sufficient for the defendant to say that he was unaware of the danger. If there is a notorious danger, he cannot be heard to say otherwise. If the danger is not notorious but if there is a defect known to him, likewise he cannot be heard to say that he did not know of the danger." 105 The analysis by Ipp JA of the authorities and cases in the area continued and his Honour cited the judgment of Young CJ in Eq in Elliott v Bali Bungy Co, supra, and summarised it. Ipp JA said: "[78] In Elliott v Bali Bungy Company Young CJ in Eq held that the general duty of retail dealers was to warn of dangers of which they knew or had reason to know but not of which they 'should have known'. As I understand his Honour, 'should have known' in this context means duty-bound to know. His Honour referred to a number of text books to this effect. To those to which his Honour referred I would add Clerk & Lindsell on Torts, 18th Ed 531 (at para 9-12) where the learned authors say that retailers may be liable in tort 'if they sell goods with reason to know they are likely to be used to harm others'…. [82] In my opinion the relationship of vendor and purchaser, or vendor and end-consumer, does not automatically give rise to a duty of care. Such relationships do not fall within the familiar categories of cases where, by the mere existence of these relationships, a duty of care arises …. I agree with Mahoney JA's view that 'something more' must exist before a duty of care arises. [83] I come to this conclusion not only because of the authorities to which I have referred. There are compelling policy reasons for requiring the presence of some additional factor falling within the recognised criteria for the establishment of a duty of care. Without the requirement of some additional factor, a retailer would continuously be at risk if it did not investigate the potentially hazardous characteristics of all the products sold by it, and the constituents of such products as well. A large hardware retailer like McPhersons sells vast quantities of products of many kinds. Smaller retailers sell less but still sell many. The installation and implementation of systems discovering and identifying potential hazards of products and their constituents would be an expensive exercise for retailers. The increased costs could have considerable flow-on effects (affecting the financial capacity of some retailers to employ workers, the need to obtain costly insurance, the general cost of living, and the very viability of some businesses). In the end, the cost of complying with the proposed automatic duty of care would be borne by the community as a whole. [84] The social need for recognising a duty of care owed automatically by a retailer simply because it sells a particular article is not strong. In the circumstances in which it might be sought to hold such a retailer liable for a defect in the article, it is likely that liability would attach to the manufacturer …. The proposition that retailers owe an automatic duty of care amounts, in effect, to the retailer being vicariously liable for the fault of the manufacturer in producing a defective article. This is not a proposition that our law has embraced." 106 In McPherson's Ipp JA thereafter deals with whether the "something more" is that the retailer "ought to know" or "has reason to know", after which his Honour deals with the application of the duty to the factual position involved in those proceedings. 107 The reasons for judgment of Mason P refer to the "same" duty and the "content" both of which seem to refer to the content of the duty, rather than its existence. On the other hand Ipp JA and Hodgson JA each refer to the "existence" of a duty of care. I am bound to accept that the "something more" is a condition on the existence of the duty, rather than its content. For my own part, I prefer the approach of Mason P. 108 Since writing the above passage I have been referred to the reasons for judgment of the Court of Appeal in Pesl v Ray Smith Tractors [2007] NSWCA 74. In Pesl, Tobias JA, with whom Beazley and Ipp JJA agreed, adopted and applied the reasoning of Ipp JA in McPherson's and confirmed the approach by which I am bound, namely, that the "something more" (knowledge or reason to know) conditions the existence of the duty, rather than its content. 109 I apply a test on the existence of a duty of care that requires, in a situation of vendor and purchaser, that the vendor must know or have reason to know before such a duty will be held to exist. I am bound so to do. For my own part such a test seems to have more to do with the content of any duty rather than its existence. 110 Strangers are not liable in negligence to take reasonable care to prevent foreseeable harm, even when they have reason to know of the dangers. "A defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care. The references to 'relations', and to the problem of deciding which relations are sufficiently proximate to give rise to a duty of care, in part reflects the previous history of the law of negligence, the focus of attention often being particular categories of relationship. The search was for a unifying principle which informed the decisions in respect to those categories. The actual conclusion in Donoghue v Stevenson was that, at least in certain circumstances, the manufacturer of a product intended for human consumption stood in a sufficiently proximate relation to an ultimate consumer of the product to attract a duty of care. But Lord Atkin, in his formulation of principle, was seeking to find 'a valuable practical guide', and warned against 'the danger of stating propositions of law in wider terms than is necessary'. Consistently with his reasoning, he might also have warned against the danger of stating such propositions in more categorical terms than is appropriate. Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care. Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party. Sometimes they may arise because the defendant is the repository of a statutory power or discretion. Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits. Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships. Developments in the law of negligence over the last thirty or more years reveal the difficulty of identifying unifying principles that would allow ready solution of novel problems. Nonetheless, that does not mean that novel cases are to be decided by reference only to some intuitive sense of what is 'fair' or 'unfair'". ( Sullivan v Moody (2001) 207 CLR 562 at 576 [42], [47], [50], [53] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ) 111 Absent the existence of a relationship of vendor and purchaser, there would not be a duty of care whether or not there was "something more". Whether, in the current circumstances, "something more" defines the existence of the duty of care, limits its content, or is a necessary element of the breach of the duty makes no practical difference to the determination of liability. There must be "something more" before liability can arise. As already stated I am bound by the view that there must be "something more" before a duty of care arises and I apply that test in determining whether GWS has such a duty. 112 Uninformed by the judgments of the Court of Appeal I would have thought that a duty existed between vendor and purchaser, the content (nature or scope) of which was that the vendor would take reasonable steps to prevent foreseeable harm to the purchaser (and that foreseeable class of persons utilising the goods through, for or with the purchaser) from the sale. In those circumstances, knowledge (or reason to know) would limit liability because it would condition foreseeability and/or the reasonableness of the steps to be undertaken. However, as previously stated, the law I apply is now clear and knowledge or reason to know preconditions the existence of the duty, not its nature or scope. Further, also as previously stated, such a condition, whether it limits the existence or scope of the duty, is appropriate and necessary and regardless of the point (existence or scope) at which it applies has, at least in this case, no different effect. 113 On the evidence in these proceedings, the vendor, GWS, had actual knowledge and "reason to know". To the extent necessary, I also find that it "ought to have known". There can be no doubt that the "something more" existed such as to enable a finding that there existed a duty of care owed by GWS, as the vendor of the tyre. 114 In determining the extent of the duty I apply the approach encouraged by Hayne J in Modbury Triangle v Anzil (2000) 205 CLR 254 at [105]. I examine the damage suffered by the two plaintiffs, the absence of care of GWS and whether those two aspects combined resulted from the breach of the duty, which GWS owed. 115 In this case, the damage that was suffered by each of the plaintiffs was the personal injury occasioned by undertaking a task that was known by GWS to be inherently dangerous. As I have already found, if the risk involved in undertaking the task had been appreciated by Mr Laws Senior, the task would not have been undertaken. That which was necessary to satisfy the duty of care imposed on GWS was to inform Laws Senior of the risk and danger involved. GWS did not, in any appropriate way, or at all, inform Mr Laws Senior of the risk and danger and therefore GWS was in breach of the duty of care imposed upon it as a vendor of goods that knew or had reason to know of the dangers involved in those goods. 116 The injuries sustained, to which I will refer later, are injuries of a kind which were foreseeable and the persons injured, being the purchaser of the goods and a person assisting him in the task of fitting them, were of a class of persons who were foreseeable as persons likely to have been injured and the failure to warn of the risk and/or danger is directly causative of the injury or injuries in question. To paraphrase Jacobs JA there is a notorious danger because "the thing is used in some way in which it may reasonably be foreseen that it may be used" and when so used "there is a defect known to [it], [and GWS] cannot be heard to say that [it] did not know of the danger": Imperial Furniture, supra. 117 Because I have found that an appropriate warning given to Mr Laws Senior would have resulted in him not performing the task, the chain of causation is established and the breach of duty caused the injury. 118 The warning was required regardless of the size and specifications of the tyre. While the size and/or specifications of the tyre sold rendered more probable the occurrence of an accident of this kind, such an accident was foreseeable (and probable) regardless of the tyre sold and stems from the necessity to have only trained persons engaged in tyre fitting. 119 The question I have not examined is whether GWS (or a vendor in their position) would have foreseen that the failure to draw to the attention of Laws Senior the risk and/or danger of fitting the tyre himself involved a risk of injury to Laws Senior and Laws Junior (being two members of that class of persons). The answer, given the actual knowledge of danger, must be in the affirmative. 120 Once the above issue is answered in the above manner, the issue to which I must turn is what steps, if any, would a person in the position of GWS, acting reasonably, take. Is a response to the risk reasonable? And, if so, what response? 121 The evidence discloses that the risk was that grave injury (perhaps death) would be caused if an untrained or inexperienced person fitted the tyre. The probability of the risk being realized must be considered in light of the seriousness of the foreseeable injury if it were realized. One must then evaluate the difficulty of obviating the risk (or minimizing it), including expense and inconvenience, and weigh that difficulty against any competing responsibilities: see, generally, Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 per Mason J. 122 In this case, the risk can be eliminated (and the purchaser put in the same position of knowledge as the vendor) by a simple warning and/or provision of information sufficient to allow the purchaser to evaluate for himself the risk in question. 123 It is probably unnecessary for me to determine what would have satisfied the duty imposed upon GWS in these circumstances. It is unnecessary because there is no attempt to provide any information in this regard and therefore, that, which was done, could not arguably have satisfied the duty cast upon GWS. Nevertheless, I accept that information and/or a warning of the kind provided by Motokov to GWS would have been appropriate. Such a warning would have included: (i) That because of the risk of serious injury and death, tyres should be fitted by trained and experienced technicians; (ii) That fitting a tyre involves significant pressures, which may result in explosion of the tyre and serious personal injury or death; (iii) That in fitting a tyre the rim should be fixed by a safety bolt or the tyre enclosed by a cage in order to minimise risk of serious injury. 124 In light of the above, it is possibly unnecessary for the Court to consider any other aspect of liability of GWS. An award of damages will flow in negligence against GWS in relation to both Mr Laws Senior and Mr Laws Junior. Other heads of damage were agitated against GWS and will be dealt with briefly. 125 I have found that GWS provided incorrect information in relation to the size of the tyre. Their failure to obtain the rim size was not explored in submissions. Given the experience of the staff member with whom Mr Laws Senior dealt and the fact that Mr Laws Senior was in the process of purchasing a new tractor, it may well be that the staff member was aware of the rim size on the tractor in question. 126 I reiterate that GWS had been provided with information from Motokov that informed it that a 12.4 – 28 tyre was an appropriate tyre for a W9 rim. It is impossible to find, on the evidence, that GWS relied upon the information provided by Motokov in early 1999 in the provision of the tyre. GWS relied upon its "experience" and "general knowledge" of the size of tyre appropriate. While this may have originated with the brochure from Motokov, there is no evidence of this. If it originated from general knowledge of other tyre manufacturers, then it was misplaced because the appropriate tyre/rim combination would have depended on more than just the size. 127 Further, in the particular circumstances of the provision of the tyre, GWS had no reason to know that the information provided by Motokov was incorrect or did not apply to a tyre manufactured earlier than 1999, being the tyres that it had in stock as at the beginning of 1999. However, the provision of the advice/recommendation as to what tyre is appropriate, together with the knowledge that it was being relied upon by the customer, may independently give rise to a duty of care and/or the "something more" otherwise required. The content of such a duty may require GWS to determine whether the advice was appropriate (i.e. whether the tyre would perform the task required) and/or to inform the customer that no such enquiry had been made and of the dangers hitherto mentioned. Trade Practices Act 1974 (Cth) 128 The Trade Practices Act 1974 (Cth) is relevant in these proceedings in two quite distinct ways. It is raised as against GWS for its effect on the contract and it is also utilised as against Motokov in relation to its responsibilities as a manufacturer. 129 It is submitted against GWS that the Trade Practices Act, and to a lesser degree the Sale of Goods Act 1923 (NSW), affects the liability of GWS to Mr Laws Senior and impacts upon the terms of the contract between GWS and Mr Laws Senior both directly and by implying statutory warranties into their contract of sale and prohibiting the exclusion of those and other warranties. 130 It is necessary to set out the relevant provisions. As earlier stated Laws Senior purchased the tyre from GWS on 10 March 1999. That contract of sale had terms that consisted, inter alia, of the price of the goods, the method of delivery or exchange of possession of goods, the parties to the contract and the description of the goods to be purchased. Those terms were express and derive from the conversation between Mrs Laws and GWS and, to a minor degree, the conversation and conduct of Mr Laws in relation to GWS. 131 It is said by GWS, to which reference has already been made, that the obverse side of the invoice/receipt formed part of the terms of a contract of sale. I have, for two reasons, determined that clause 10 of those "terms" did not apply in a manner that excluded damages for negligence or liability in negligence. Each of those reasons depended upon the common law. I have found (see [24]-[29], infra) that the document was first provided to Mr Laws Senior after the contract had been entered into and indeed after it had been performed. The terms do not form part of the contract. I have also determined that, under the ordinary rules of construction of such a clause, the provisions of clause 10 would be construed strictly and, in respect of any ambiguity, against the interest of the party proffering the clause, in this case GWS. 132 However, it is submitted that the provisions of the Trade Practices Act impact upon the terms of the contract of employment by imposing duties on the vendor and restricting the right of the vendor to exclude damages. As already stated, on one view, it is unnecessary, given the finding as to negligence, to deal with these issues. Nevertheless, I will deal with them, but perhaps more briefly than might otherwise be the case. 133 It is necessary to set out the particular provisions of the various Acts said to be relevant. I set them out as follows: Trade Practices Act "4B(1) For the purposes of this Act, unless the contrary intention appears: (a) a person shall be taken to have acquired particular goods as a consumer if, and only if: (i) the price of the goods did not exceed the prescribed amount; or (ii) where that price exceeded the prescribed amount--the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption or the goods consisted of a commercial road vehicle; and the person did not acquire the goods, or hold himself or herself out as acquiring the goods, for the purpose of re-supply or for the purpose of using them up or transforming them, in trade or commerce, in the course of a process of production or manufacture or of repairing or treating other goods or fixtures on land; and … 66(2) Goods of any kind are of merchantable quality within the meaning of this Division if they are as fit for the purpose or purposes for which goods of that kind are commonly bought as it is reasonable to expect having regard to any description applied to them, the price (if relevant) and all the other relevant circumstances. … 68(1) Any term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) that purports to exclude, restrict or modify or has the effect of excluding, restricting or modifying: (a) the application of all or any of the provisions of this Division; (b) the exercise of a right conferred by such a provision; (c) any liability of the corporation for breach of a condition or warranty implied by such a provision; or (d) the application of section 75A; is void. … 71(1) Where a corporation supplies (otherwise than by way of sale by auction) goods to a consumer in the course of a business, there is an implied condition that the goods supplied under the contract for the supply of the goods are of merchantable quality, except that there is no such condition by virtue only of this section: (a) as regards defects specifically drawn to the consumer's attention before the contract is made; or (b) if the consumer examines the goods before the contract is made, as regards defects which that examination ought to reveal." (2) Where a corporation supplies (otherwise than by way of sale by auction) goods to a consumer in the course of a business and the consumer, expressly or by implication, makes known to the corporation or to the person by whom any antecedent negotiations are conducted any particular purpose for which the goods are being acquired, there is an implied condition that the goods supplied under the contract for the supply of the goods are reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied, except where the circumstances show that the consumer does not rely, or that it is unreasonable for him or her to rely, on the skill or judgment of the corporation or of that person. 134 Reliance is also placed by Mr Laws Senior on the Sale of Goods Act the relevant provisions of which are: Sales of Goods Act "19 Subject to the provisions of this Act, and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows: (1) Where the buyer expressly or by implication makes known to the seller the particular purpose for which the goods are required so as to show that the buyer relies on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply (whether the seller be the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for such purpose: Provided that in the case of a contract for the sale of a specified article under its patent or other trade name there is no implied condition as to its fitness for any particular purpose. (2) Where goods are bought by description from a seller who deals in goods of that description (whether the seller be the manufacturer or not), there is an implied condition that the goods shall be of merchantable quality: Provided that if the buyer has examined the goods there shall be no implied condition as regards defects which such examination ought to have revealed. … (4) An express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent therewith." 135 GWS submits, in relation to any liability alleged against it in relation to the application of the Trade Practices Act to this transaction, that Mr Laws Senior is not, relevantly, a consumer and therefore the transaction between it (GWS) and Mr Laws Senior was not a consumer transaction to which the provisions of Part V of the Trade Practices Act apply. 136 At the outset, it is for GWS to prove that Mr Laws Senior was not, in relation to this transaction, a consumer of the tyre: see Trade Practices Act section 4B(iii). 137 The "price of the goods" to which reference is made in section 4B(1)(a)(i) is $40,000. The tyre and tube were purchased for $530 and therefore section 4B(1)(a)(i) is satisfied. It is therefore unnecessary for me to construe subparagraph (ii) of that subsection. It is fairly clear on the evidence before me (and it is not alleged to the contrary) that the tyre was not sold to Mr Laws Senior for the purpose of re-supply. The question that arises is whether the tyre fits the description of goods acquired "for the purpose of using them up or transforming them in the course of a process of production or manufacture or of repairing or treating other goods or fixtures on land". For present purposes we can ignore fixtures on land. 138 GWS maintains that, in relation to the transaction in question, Mr Laws Senior was not a consumer. They argue this proposition on the basis that the goods, although under the prescribed monetary limit, were acquired "for the purpose of using them up etc". 139 As I understand the argument it is based upon the proposition that the term "use up" includes "consumed the whole of or exhaust". It is then argued that because the tyre is perishable or depreciable, and/or may blow out and be damaged beyond repair, it is consumed in whole or exhausted. 140 Notwithstanding the otherwise forceful and erudite submissions of counsel, both in writing and orally, the submission on this point, perhaps understandably, misreads the section. 141 GWS does not submit that the tyre was used as part of the process of production or manufacture. Nor does it submit that the tyre was transformed in the process. Assuming that the tyre was not used as part of a "process of production or manufacture" and that the tyre was not transformed, we can omit certain words to make section 4B(1) of the Trade Practices Act more easily understood. Given that the price of the goods is less than the prescribed amount what otherwise must be required is that the person did not acquire the goods (we can ignore for present purposes the holding out provisions) "for the purpose of using them up in the course of repairing or treating other goods". 142 The fallacy in the submission of GWS is that it omits the words "in the course of" and reads the section as if the word "of" did not appear before the words "repairing or treating". The use there of the word "of", after the word "or", means that the reading of the subsection requires that the alternative ("of repairing or treating other goods") is an alternative to one of: the purpose of re-supply; or the purpose of using them up; or the process of production or manufacture. The last mentioned reading is the only logical result. In that way the person remains a consumer even though goods are required for the purpose of using them up unless the goods are used up, relevantly, "in the course of repairing or treating other goods" or "in the course of the process of repairing or treating other goods". 143 On that construction, a manufacturer who purchases biscuits for its staff is a consumer, even if the staff eats the biscuits while manufacturing, repairing etc. Also, a manufacturer or owner of other goods is still a consumer if it acquires goods for the purpose of using them up but the consumption of them is not in the course of a process of production or manufacture or in the course of repair or treating other goods. A tyre on a car, truck or tractor is a perfect example of the acquisition of goods which may be used in repairing or treating other goods (and sometimes in the course of a process of production or manufacture) and would be acquired for the purpose of using it up, but it would not be used up in the course of that repair or treatment. It would be used up by the use of the tyre (or goods on which it was fitted) once repaired or treated. 144 The above literal construction is confirmed by the fact that a different construction would lead to some manifest absurdities. If the submission of GWS were correct, a tyre for a car may or may not be subject to the consumer protection provisions depending upon whether the car is being used for business or for private purposes. Given the range of purposes for which a motor vehicle might be used and the times when it may be used partly for business and partly for private use, there would be no certainty in rights and duties of any retailer of such goods or in the person purchasing. 145 Further, the express inclusion in section 4B(1)(ii) of the term "the goods consisting of a commercial road vehicle", which is still subject to the condition as to the purpose of the acquisition, would mean, if the submission of GWS were correct, that that description ("the goods consisting of a commercial road vehicle": see section 4B(4)) would result in the purchase of the vehicle being a consumer transaction but the purchase of a tyre for the vehicle not being so. This would have the result that the consumer protection provisions would cover the tyre when on the initial vehicle, but not when sold separately. The inconsistent consequences that result from the submission of GWS as to the proper construction of the term "consumer" substantiates the construction derived from the literal approach to the definition. Such an approach also conforms with the purpose of the Act, without recourse to the even broader interpretation that may be available because it is a remedial or beneficial provision. 146 The purchase of the tyre was a consumer transaction and the provisions of sections 66, 68 and 71 of the Trade Practices Act apply. 147 An ordinary consumer (i.e. a person who is not a vendor of tyres, or involved in the tyre industry) would not generally be expected to know of the danger or risk of fitting a tyre when not trained so to do. Once the goods are capable of being used by a consumer, in this case by fitting the tyre themselves, and such use is reasonably likely, and can cause damage, those goods (in this case, the tyre) are defective (or have a defect) within the meaning of section 71(1)(a) of the Trade Practices Act. This defect was not specifically drawn to the attention of Laws Senior nor was it capable of being revealed on inspection. Therefore, it is necessary for the tyre to be of merchantable quality. 148 In the current circumstances, the danger inherent in a consumer (Laws Senior) fitting the tyre results in the tyre not being "as fit for the purpose … for which … [it is] … commonly bought as it is reasonable to expect" in the circumstances. As such GWS, a corporation, which has imposed upon it an implied condition that the tyre sold is of merchantable quality, has not satisfied that condition: see by analogy ACCC v Glendale (1998) ATPR 41-632 at 40,970-40,971. 149 For similar reasons, GWS has not satisfied the implied conditions imposed by operation of the Sale of Goods Act. 150 Further, to the extent that I am otherwise wrong on the construction of clause 10 [see paragraph 28, infra] and its inclusion as part of the contract, and at least to the extent that clause 10 expressly excludes (or is inconsistent with) the implication of a warranty of merchantable quality into the contract, section 68 of the Trade Practices Act renders the clause void. It is an interesting issue, which I do not need to decide, whether the effect of section 68 is to render the clause void for all purposes or only to the extent that it has the effect described in the section. 151 GWS is, also on the above reasoning, liable in contract. Liability of Motokov under Trade Practices Act 152 The above factual analysis also discloses the basis of the liability of Motokov in negligence and under the Trade Practices Act. 153 The claims under the Trade Practices Act rely on the provisions of section 74B, section 74D and section 75AD which render a manufacturer liable for compensation, for personal injury and otherwise, caused by a defect in the goods manufactured by it or by lack of suitability or absence of merchantable quality. The terms of those sections of the Trade Practices Act are in the following terms: "74B(1) Where: (a) a corporation, in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re-supply; (b) a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer; (c) the goods are acquired by the consumer for a particular purpose that was, expressly or by implication, made known to the corporation, either directly, or through the person from whom the consumer acquired the goods or a person by whom any antecedent negotiations in connexion with the acquisition of the goods were conducted; (d) the goods are not reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied; and (e) the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer suffers loss or damage by reason that the goods are not reasonably fit for that purpose; the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction. (2) Subsection (1) does not apply: (a) if the goods are not reasonably fit for the purpose referred to in that subsection by reason of: (i) an act or default of any person (not being the corporation or a servant or agent of the corporation); or (ii) a cause independent of human control; occurring after the goods have left the control of the corporation; or (b) where the circumstances show that the consumer did not rely, or that it was unreasonable for the consumer to rely, on the skill or judgment of the corporation. … 74D(1) Where: (a) a corporation, in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re-supply; (b) a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer; (c) the goods are not of merchantable quality; and (d) the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer suffers loss or damage by reason that the goods are not of merchantable quality; the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction. (2) Subsection (1) does not apply: (a) if the goods are not of merchantable quality by reason of: (i) an act or default of any person (not being the corporation or a servant or agent of the corporation); or (ii) a cause independent of human control; occurring after the goods have left the control of the corporation; (b) as regards defects specifically drawn to the consumer's attention before the making of the contract for the supply of the goods to the consumer; or (c) if the consumer examines the goods before that contract is made, as regards defects that the examination ought to reveal. (3) Goods of any kind are of merchantable quality within the meaning of this section if they are as fit for the purpose or purposes for which goods of that kind are commonly bought as it is reasonable to expect having regard to: (a) any description applied to the goods by the corporation; (b) the price received by the corporation for the goods (if relevant); and (c) all the other relevant circumstances. … 75AD If: (a) a corporation, in trade or commerce, supplies goods manufactured by it; and (b) they have a defect; and (c) because of the defect, an individual suffers injuries; then: (d) the corporation is liable to compensate the individual for the amount of the individual's loss suffered as a result of the injuries; and (e) the individual may recover that amount by action against the corporation; and (f) if the individual dies because of the injuries--a law of a State or Territory about liability in respect of the death of individuals applies as if: (i) the action were an action under the law of the State or Territory for damages in respect of the injuries; and (ii) the defect were the corporation's wrongful act, neglect or default." 154 Motokov admits, for the purpose of these proceedings, that it is the manufacturer. Under the Trade Practices Act, "manufacturer" has a meaning defined by section 74A and a defect in goods is a concept explained by the provisions of section 75AC of the Act. 155 Both sections 74B and 74D apply because Motokov is (or was at the relevant time): a manufacturer (as defined); supplied the tyre, in this case to GWS, for the purpose of resupply; and GWS supplied it to a consumer, Laws Senior. 156 For the purpose of section 74B of the Act, Laws Senior acquired the goods for a purpose made known to Motokov, either directly or through GWS and the goods were not reasonably fit for that purpose, i.e. to be fitted by the consumer. 157 But for one aspect, section 74B would operate to render Motokov liable to Laws Senior for compensation for injury; the one aspect is that, for section 74B (and section 74D) to be efficacious, the supply (re-supply and acquisition) must be of goods. 158 The provisions of section 74A(2)(a) of the Trade Practices Act limit the operation of Part V Division 2A (relevantly sections 74B and 74D) to goods acquired "for personal, domestic or household use or consumption". A tractor tyre acquired for use on a tractor which, in turn, is used in business, does not fit that description. 159 Similarly, but for the same aspect, section 74D would operate to render Motokov liable to Laws Senior for compensation for injury. As to "merchantable quality", see the previous discussion relating to section 71 and its application to GWS. 160 The definition of "goods" in section 74A(2)(a) of the Act refers to "ordinarily acquired". It is conceivable that a rear tractor tyre may be purchased for personal, domestic or household use, but I am of the view (although there is little evidence in these proceedings on the issue) that such is not the purpose for which such an article is "ordinarily" acquired: see, by analogy, the analysis in Atkinson v Hastings Deering (Qld) (1985) 6 FCR 331 and Minchillo v Ford [1995] 2 VR 594, and compare Crago v Multiquip (1998) ATPR 41-620 and Jillawarra Grazing v John Shearer (1984) ATPR 40-441. It is the purpose for which such a rear tyre is ordinarily purchased that must be ascertained and if such a purpose satisfies the description in section 74A(2)(a) then, and only then, do the liabilities imposed by sections 74B and 74D apply. On that basis, neither section applies. 161 In this case, Motokov is not liable by reason only of sections 74B and 74D of the Trade Practices Act because I am unable to conclude that the rear tractor tyre is ordinarily acquired for personal, domestic or household use or consumption. 162 On the other hand, the provisions of section 75AD of the Trade Practices Act are within Part VA of the Act. Section 75AD is not a provision found in Part V Division 2A and therefore the definition of goods in section 74A(2)(a) of the Act does not apply and "goods" are not limited to those ordinarily acquired for a particular purpose. The general definition of "goods", in section 4 of the Act, still applies. 163 For the purpose of section 75AD of the Act, Motokov is a corporation; it supplied the tyre in question in trade or commerce; and it supplied goods manufactured by it. 164 Because Motokov marketed the goods without any warning as to the fitting process and given: the manner in which the tyres would be marketed (including through dealers, such as GWS, who were not tyre specialists) for sale to consumers; the packaging of the tyres (and particularly the absence of any accompanying and attached warnings); and that the tyre might reasonably be expected to be fitted to rims; the safety of the tyre was not such as persons generally are entitled to expect. There is a defect in the tyre as described in section 74AC of the Trade Practices Act and Motokov is liable under section 75AD to compensate Laws Senior and Laws Junior for their loss caused by the defect: see ACCC v Glendale, supra, per Emmett J. Employment 165 Motokov has raised a defence based upon an allegation that Laws Junior was employed by Laws Senior and/or Mrs Laws and that, as a consequence, the provisions of section 75AI of the Trade Practices Act preclude recovery under section 75AD of that Act. 166 The contention is wholly without merit. No test for the existence of a contract of employment has been satisfied. Were this is a significant aspect of the proceedings, I would award indemnity costs. Unfortunately, notwithstanding its lack of merit, I must deal with it. I will do so very briefly. 167 The argument is based upon the existence of payments, from Laws Senior and Mrs Laws, to Laws Junior, out of amounts withdrawn from their joint account and recorded as wages in the cheque butts. It should be noted that the evidence that I accept is not that the amount designated as wages in the chequebook was paid in its entirety to Laws Junior; only that monies from that amount were so paid. 168 There is no evidence that Laws Junior was the subject of control and/or direction. Nor is there evidence that there was a right, reserved by Laws Senior or Mrs Laws, to exercise such control and/or direction. There is no suggestion in the evidence of such control. There is no suggestion of an offer and acceptance of work; there is no suggestion of defined (or any set) hours of work; there is no deduction of tax; there is no suggestion that the parents provided equipment; there is no suggestion that the payment relates either to the hours of work or volume of work. Indeed, to the extent that I need to assess the arrangement, it seems most likely that it is payment made by parents to a child in recognition of his willingness to assist in the improvement of their house which willingness is based upon perceived familial duties. On the evidence in these proceedings, there is no suggestion that there is a contract between Laws Junior and Laws Senior or Mrs Laws; let alone a suggestion such a contract is a contract of employment. 169 There is no evidence that proves that Laws Junior was "part of the business", in any relevant sense, conducted by Laws Senior and Mrs Laws for which the tractor was then being used. The uncontradicted and uncontroverted evidence is that Laws Junior carried out carpentry work for his parents as part of an arrangement whereby Laws Junior assisted, time permitting, with improvements in their home. None of the indicia of employment are present. As Lord Denning said in Stevenson Jordan & Harrison v McDonald [1952] 1 TLR 101 at 110-111 (cited with approval in Australian Timber Workers Union v Monaro Sawmills (1980) 42 FLR 369 and disapproved, but not in this respect, in Stevens v Brodribb Sawmilling (1986) 160 CLR 16): "Lord Justice Somervell went on to say: 'One perhaps cannot get much beyond this – "Was the contract a contract of service within the meaning which an ordinary person would give the words?"' I respectfully agree. As my Lord has said, it is almost impossible to give a precise definition of the distinction. It is often easy to recognise a contract of service when you see it, but difficult to say wherein the difference lies." 170 If one were to ignore the indicia and discern intuitively the nature of the relationship with Laws Junior, it would not be an employment relationship. 171 It has been said that determining whether a given person is an employee or an independent contractor is "never an easy task". Such a remark, usually trite, is not an accurate reflection of the current determination. In this case, the task is a very easy one. 172 The circumstances giving rise to Laws Junior assisting his father in fitting the tyre had, on the evidence, absolutely nothing to do with the payments made to Laws Junior by his parents. Lest there be any doubt, the submission of Motokov that Laws Junior was an employee of one or other or both of Laws Senior or Mrs Laws is rejected. Liability/Negligence of Motokov 173 As explained already for the purpose of analysing the liability of GWS in negligence, the absence of a warning as to the necessity for the tyre to be fitted by trained and experienced technicians which warning is communicated to consumers by notice on the tyre or attached to it is a defect that relevantly caused (or was a cause) of the injuries sustained by Laws Senior and Laws Junior. 174 As already explained, Motokov is the manufacturer for the purposes of the Trade Practices Act. It would have been extremely easy, with no or no substantial cost, for Motokov to have manufactured the tyres with a warning on the tyre. Motokov, as is clear from their brochure, were fully aware of the dangers of fitting a tyre and had foreseen that persons, other than appropriately qualified technicians, may attempt to fit them. Further, while marginally more expensive than including a warning on the tyre during its manufacture, it would not have been difficult for Motokov to attach written material to the tyre with warnings in or to the same effect. 175 Where, as here, a product is manufactured for the purpose of eventual supply to the ultimate consumer in the form in which they are manufactured, the manufacturer is placing itself in a relationship with such consumers which creates a duty of care to take reasonable steps to avoid foreseeable injury to them: Donoghue v Stevenson [1932] AC 562; see also Grant v Australian Knitting Mills (1935) 54 CLR 49 at 641. 176 For all the reasons outlined above, a reasonable person in the position of Motokov would have taken steps to place a warning on the tyre at the time of manufacture or at the time the goods were imported and before distribution: see paragraph 121, infra, and the reference to Wyong Shire v Shirt. See also SCC v Dell Oro (1974) 132 CLR 97. 177 In Lanza v Codemo [2001] NSWSC 72, Wood CJ at CL discussed the liability of a manufacturer for the failure to provide a warning. His Honour, in dealing with the supply of a harness, said: "165 In my view, Moxham owed a duty of care to an end user to supply such information and instructions in relation to the harnesses which it supplied, so as to ensure their safety in use. The existence of that duty I regard as established, not only by the element of forseeability as defined in Wyong Shire Council v Shirt (1980) 146 CLR 40 at pp 47 to 48, but also by the element of proximity which must be accepted as existing between a supplier and a consumer or end user of a product placed upon the market by that supplier, and by the vulnerability of a person in the position of the plaintiff, upon whose life, the effectiveness of the fall arrest device was likely to depend: Crimmins v Stevedoring Industry Finance Committee (1999) 167 ALR 1; Perre v Apand Pty Ltd (1999) 198 CLR 180; and Pyrenees Shire Council v Day (1998) 192 CLR 330. 166 As manufacturer and supplier of the harness, I am satisfied that Moxham knew, or ought reasonably to have known, by reason of the planned location of the D ring between the wearer's shoulders, that a user would be unable to visualise the necessary connection of the lanyard to it, and that there was a realistic risk of imperfect connection occurring, with potentially disastrous consequences if the device was called upon to arrest a fall. As such it should, in my view, conformably with the duty of care resting upon it, have drawn attention to that risk, and have provided clear instructions and warnings of it, and of the need for the wearer to hook up before donning the jacket, or otherwise to have a co-worker make or visually check the connection before placing himself in a situation, where there was a potential for a fall, and not to rely simply on the feel or sound of a snap hook closure." 178 In Lanza, supra, Wood CJ at CL applied the judgment of the Court of Appeal in Laundess v Laundess, supra, referred to by the Court of Appeal in McPherson's and in Pesl, supra. I do not decide whether the test is the same for vendors and for manufacturers, who, by definition in these circumstances, create the danger, but if it were so, then the test is satisfied. 179 Even if Motokov is treated, for the purposes of the common law as it must, as an importer or a wholesaler and not a manufacturer, it was able at minimal cost to attach to all tyres imported a written warning in terms already discussed. It could have done so at the time it placed markings on the tyre describing, in English, its size and features. Motokov had no lesser capacity to perform that task than did GWS and, had it done so, it would have ensured that such a warning was in place for all tyres it brought into Australia. 180 Motokov did not have the capacity, as did GWS, to warn the consumer orally, but it had the capacity to effect a warning to the consumer. Further, it is foreseeable that some dealers may not have had knowledge of the danger (as Motokov clearly did) either because they had not read Motokov's brochure or because they had not understood it, and a response by Motokov was necessary and reasonable in order for reasonable steps to be taken to prevent foreseeable harm to the consumer to whom the tyre was being marketed. 181 Motokov had a duty of care; it required Motokov to place a warning on the tyre and Motokov breached its duty of care. 182 Motokov is liable to Laws Senior and Laws Junior in negligence and pursuant to section 75AD of the Trade Practices Act. Apportionment 183 Having determined that both GWS and Motokov are liable for the injuries sustained by Laws Senior and Laws Junior, it is necessary to deal with the claims by each of GWS and Motokov against the other for contribution, at least insofar as the cause of action in negligence is concerned. 184 Ultimately the question of how much contribution is due from each defendant is answered by the determination of what is just and equitable as between the parties based on the extent to which each is responsible for the damage. 185 I have already determined that Laws Senior did not depart from the standard of care one can expect of a reasonable person and is liable neither in contributory negligence nor for contribution to the damage suffered by Laws Junior. This issue is essentially the same. The High Court in Podrebersek v AI&S (1985) 59 ALJR 492 said: "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ( Pennington v. Norris (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. (1953) AC 663, at p 682; Smith v. McIntyre (1958) Tas.SR 36, at pp 42-49 and Broadhurst v. Millman (1976) VR 208, at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance." 186 In informing the exercise of balancing the culpability of GWS and Motokov, a number of factors are relevant. I pay regard to a number of factors, but particularly to the following. On the part of Motokov, it was aware of the danger and the details of the steps to fit a tyre properly. It was a specialist in the tyre industry, which was able to effect a warning on every Barum tyre imported. Steps taken by it to provide such a warning would have been easy and, because of its tyre specialty, easier and more cost efficient per tyre than written material provided by any retailer, but particularly GWS for whom tyres were a minor aspect of their operations. 187 On the other hand, at least as at the beginning of 1999 (and I have found earlier), it provided to its retail outlets such a warning. Whether the provision of such a warning increases or decreases its relative culpability is a nice question. A stick-on warning to consumers would have been just as easy and would have ensured that warnings of the risk would have been provided to its intended consumers. It would be inappropriate to require Motokov to supply only to specialist tyre dealers or retailers with such facilities because such would not have been a reasonable response by Motokov: see McPherson's, supra, per Mason P. 188 GWS was the vendor of the tyre. It knew the purchaser and knew he was not a specialist tyre fitter. It had the capacity to ensure appropriate information was given to the purchaser. It knew of the danger of the fitting process, although, as a dealer that was not itself a specialist tyre dealer, it was unaware of all of the details of that danger, the safety measures and all of the consequences. 189 The failure of each of them caused all of the damage and each would have been liable without any involvement of the other. The tyre size issue, to the extent that it is a contributing factor, is minimal but lies equally at the feet of each. 190 My task is to determine a proportion between GWS and Motokov that is just and equitable. I determine that each is jointly and severally liable for all of the damage to each of Laws Senior and Laws Junior. As between GWS and Motokov, I determine that each should contribute half. 191 As I have sought to make clear, I am calculating damage in negligence. While I have held that there is liability in contract and under the Trade Practices Act, I consider that liability under each of those latter causes of action is subsidiary to the primary liability in negligence. As a consequence I do not deal with whether, as a matter of law, contribution can be awarded, or an apportionment made, under the Trade Practices Act or in contract. It is necessary, however, to deal with one aspect of that issue. To avoid complications, the plaintiffs, each of them, need to elect to obtain damage in tort and not under the Act. 192 As the High Court has said: "[130] The relationship between claims made for relief in respect of contravention of provisions of the Trade Practices Act and common law claims, whether in negligence, deceit or otherwise, has not been examined in detail in any decision of this Court and was not the subject of detailed argument in the present matters. In those circumstances, we proceed on the assumption (which was not challenged) that a plaintiff may frame alternative claims in negligence and under the provisions of the Trade Practices Act relied on here. But it is to be recognised that claims of the kind which were made in these matters, in negligence and under the Trade Practices Act, were alternative claims, and that, if a group member succeeds in establishing the elements of both claims, that group member must elect which remedy will be taken. That election would have to be made no later than at the time of seeking final judgment in the action." per Gummow and Hayne JJ Graham Barclay Oysters Pty Ltd v Ryan; Ryan v Great Lakes Council; State of New South Wales v Ryan (2002) 211 CLR 540 at 591. 193 I will propose orders and allow time before the making of final orders so that each plaintiff may so elect. Credit Of Witnesses 194 There are two major areas in which the credit of the witnesses is significant. To some extent submissions were made on credit in relation to the submission of Motokov that Laws Junior was an employee of Laws Senior and/or Mrs Laws. In that regard, the credit of the respective witnesses was irrelevant to my findings. This is because, inter alia, even if the witnesses whose evidence was subject to complaint by Motokov were all untruthful (and it will become clear that I find the opposite), the burden of proof was on Motokov to establish the exception in section 75AI of the Trade Practices Act and there was no evidence, ignoring for present purposes the evidence of the family, which would establish employment, even on the balance of probabilities. 195 There are, however, other areas in which the credit of the witnesses is relevant. The most important is on the question of damage and relates to the evidence given on the continuing disabilities of Laws Junior. 196 The first matter that I deal with is the examination and cross-examination of Laws Junior. As will be seen from the findings I will express later in this judgement, Laws Junior suffered significant brain damage as a consequence of this accident. He gave evidence. During the course of that evidence I commented that, in relation to some questions, he would agree with anything that was put to him. The overwhelming impression of Laws Junior, in the witness box, was that he was "child-like". He had no realistic appreciation of his own limitations, or the limitations of others. It was almost as if he gave the impression he lived in a "dream world". It was obvious that he could not concentrate for any length of time and that he gave answers that he thought people wanted. He also seemed to give answers on matters that he obviously either could not remember or did not know. 197 Nothing in the foregoing should give the impression that I considered Laws Junior to be dishonest. The "child-like" capacity, behaviour and attitude are, on the view I take, a result of his injury and his evidence was not an attempt to dissemble. Generally, with the limitations just mentioned, I considered Laws Junior to be truthful, honest and forthright. Perhaps more so because he was unguarded. It is clear that Laws Junior was originally bright. He is sincere and honest and other than a significant reluctance to admit disability or incapacity, is generally a reliable witness. Like the remainder of his family, Laws Junior showed himself to be somewhat laconic and understated. He completed a carpentry apprenticeship but is generally "unworldly" and seems to have been so before the accident. This is so, notwithstanding that he was engaged in a career in modern music. He gave direct answers and was, subject to the requirement to treat his answers as if they were somewhat coming from a child, and his over-estimation or unrealistic estimation of capacity, reliable. 198 Criticism has been made of the family on the basis that they are exaggerating, either unconsciously or consciously, the disabilities suffered by and the incapacities of Laws Junior. I reject that contention. There are a number of instances in which the family has honestly and fully depicted the disabilities and incapacities of Laws Junior. Contrary to the submission made by both GWS and Motokov, the family have tried to extend Laws Junior and involve him in activities for that purpose and also to avoid what they perceived to be boredom. 199 I have described Laws Junior as laconic. I did so in the context of suggesting that, in that regard at least, he was like the remainder of his family. Laws Senior, as already suggested, is laconic, perhaps even taciturn. He is understated in the extreme. He is, and I say this without any hint of criticism or insult, unsophisticated and gave direct truthful answers that understated to a large degree the daily issues that arose involving his son's problems. I accept his evidence without qualification. 200 Likewise Mrs Laws was understated and "laid back". She is a truthful witness whose evidence can be accepted. Her distress in recounting the personality changes and other effects on her son was clearly genuine and it is appropriate, in some respects, to summarise some of that material. She recounted that her son (now 32) generally watched TV, had no motivation and could not do any of the activities in which he had hitherto engaged. He used a colouring in book (middle range) and was incapable of discriminating between friendly and unfriendly people that he met. He forgot to turn off electrical items and was generally behaving like a child and/or adolescent rather than an adult. She estimated that he was behaving like a "20 year old", however the patterns of behaviour that she described were more akin to at best a young teenager. She also recounted how it was necessary to keep Laws Junior busy because he became very agitated if he was not engaged in activities. One example was telling as to his future earning capacity. She recounted how her son, Laws Junior, a tradesperson carpenter, tried to use an angle grinder, could not keep control of it, and cut his leg to the bone. I will return to aspects of his disabilities, but this incident shows three fundamental features which impact significantly upon any assessment of the damage to Laws Junior: he is physically (i.e. in terms of strength and mobility) able to operate; he has no capacity to understand the limitations imposed upon him by his new condition; and he therefore attempts activities which he is incapable of attempting, as a consequence of which he requires constant supervision. The issue in these proceedings is the extent of that "constant supervision". 201 To the extent that there are differences in the evidence of experts, I will deal with that in the course of discussing the quantum of damages. Damages: Principles Applied 202 In most instances it is unnecessary to explain the principles to be applied in assessing the quantum of damage. Where income is foregone or unable to be earned, there is a consequent reduction in earning capacity. In circumstances where there is a regular wage, such compensation is arrived at with a high level of confidence. 203 In the present proceedings the earnings of both Laws Senior and Laws Junior is uncertain. In the case of Laws Senior his earnings include the partnership income and the capital gains from the development of property. Given the nature of the injuries to Laws Senior it is relatively simple to assess his income from the partnership income averages and assess that income as a percentage of his total earnings: Dessent v Commonwealth (1977) 51 ALJR 482. 204 Laws Junior, on the other hand, is a tradesperson carpenter and has an earning capacity to reflect that. His earnings have, in the past, not been reflected in his income tax returns because, it seems, he has been paid, by arrangement with his parents, an amount that they consider fair, derived from the development of property and other ventures and has otherwise been engaged in a fairly successful band as a guitarist. As a consequence his earnings go well beyond "income" as that term has been used in the relevant income tax legislation. The evidence adduced in relation to the band was that much effort had been expended, and must success achieved, the results of which would probably have been high income in the future. 205 Further the payment to Laws Junior of amounts that his parents considered fair were made bearing in mind the significant efforts made by him toward the development of property. Those efforts were the application by Laws Junior of his carpentry skills. Likewise the application of his skill was the basis for the "pocket money" from the other businesses. 206 To some degree, the earnings of Laws Junior comprised the build up of goodwill in the band (a capital accumulation), the increase in the value of the property (also a capital accumulation) and the moneys paid on the basis of "fairness". Ultimately, I take the view that the total losses were, more probably than not, far greater than average weekly earnings and far greater than a carpenter would otherwise earn. However, the uncertainty in calculation forces me to underestimate the loss of earning capacity by choosing a figure commensurate with the actual earnings of a carpenter, somewhere between minimum wages and average weekly earnings for all adult males but closet to the latter. 207 I draw the conclusion and/or inference from all of the evidence that he would have earned in the past, and would earn in the future, no less than the actual wages that a carpenter would earn. 208 The basis on which he was paid brings me to other heads of damage. It is obvious that the Laws family is fairly close and that each of them cares for the others. It is also clear that there is not a strict delineation of property "ownership" and certainly not one which, on paper, reflects the input into the improvements in value of the property. It seems that, each family member's equitable interest in property, if any, is consolidated and the business and/or financial interests of the family managed by Mrs Laws in consultation with the others. 209 This closeness was obvious when injury struck. When Mr Laws Senior was previously temporarily incapacitated other family members filled the breach. When Laws Junior was so dramatically injured, his welfare became the responsibility of the family. 210 When determining the level of care required, it is, however, quite inappropriate to award damage on the basis that the family will continue to provide the additional care required. So much was conceded by witnesses for GWS: see evidence of Occupational Therapist, Ms Beaver, Transcript page 1335. Ms Beaver considered that continuing family care would cause stress and anxiety; and it has. Ms Badham [the partner to Laws Junior] has been required to seek psychological counselling. 211 What then should be the principles that apply to the assessment of damage? First, no attempt can be made to achieve the impossible. Laws Junior, as I will later recite in detail, has suffered injury, causing permanent incapacitating injuries. No amount of money can reverse that, or, in reality, compensate it. No attempt should be made to try. The general damages will not compensate for any damage other than pain and suffering. The economic losses will compensate the loss of earning capacity. The care, which is the major contentious item, is intended to provide only enough care to enable Laws Junior to care for his own welfare at a reasonable level and only to the extent that such arises from the injury. "The jury, in my opinion, should be told to consider what the respondent, on the assumption that he was spending his own money, and assuming that he had sufficient to do as he would and was well advised and reasonably careful for his own welfare, would be likely to expend in protection of himself and his condition. It is neither fair nor just to award a sum which might be expended by others in different circumstances but which it is realized the injured person will not spend for the purposes in question." ( Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 662 per Barwick CJ) 212 This means that the reasonable expenses (or value of the services) necessary to care for Laws Junior should be awarded. The damages for care are not assessed on the basis of the wishes of Laws Junior (or his family), but on the basis of his need: see Sharman v Evans (1977) 138 CLR 563 at 573; Chulcough v Holly (1968) 41 ALJR 336 at 338. It is not the ideal level, but the lesser standard of reasonableness that determines the level of care to be assessed. 213 The level of care is determined by determining the services reasonably required to satisfy the reasonable needs of Laws Junior resulting from the injury and the value of those services: Van Gervan v Fenton (1992) 175 CLR 327 at 338 per Mason CJ, Toohey and McHugh JJ (Brennan and Gaudron JJ agreeing). 214 The care is not provided to enhance his life, only to ensure that his reasonable requirements are provided so as to avoid additional expenditure that would otherwise be required on account of the injury/disability. 215 Further, the Court cannot award expenses of a kind that Laws Junior would not incur. A claim has been made for the costs of fund management. I take the view that, given the familial relationships, the moneys will be managed by Mrs Laws and/or other members of the family. While the time spent in managing the funds (and the cost) ought not be borne by the family, in the unusual and peculiar circumstances of these relationships, I cannot conceive that the funds would be managed professionally or that there would be costs incurred. Even if I required, were I able, the money to be managed by the Public Trustee, the time (and major decisions) would still be spent (and made) by family members. I do not allow those costs. Damages: Thomas Laws 216 Laws Senior was injured less seriously than was Laws Junior. I will deal firstly with Laws Senior. 217 As earlier stated in this judgment, he was 55 years of age at the time of the accident. Because he was slightly to the side of the tyre when it exploded he was thrown approximately 6 metres on to the concrete behind the vehicle (i.e. the troop carrier). His evidence discloses that, after being thrown to the ground, he had difficulty getting up and was suffering pain in his right wrist and the left side of his head. He saw his son on the ground and, initially, thought his son had died. Laws Senior, together with his son, was flown by helicopter to Westmead Hospital. 218 X-rays were taken at Westmead. Nine days after the incident, Laws Senior was advised that he had fractured his wrist. He was referred to an orthopaedic surgeon (Dr Dilley). He saw Dr Dilley on 27 April 1999. He was x-rayed on the same day which x-ray showed an old un-united fracture of the ulnar styloid process with degenerative change at the distal radio-ulnar joint of long standing. Dr Dilley formed the view that the old fracture was not caused or aggravated by the accident now before this Court. The x-ray of 27 April 1999 also showed a fracture through a cyst in the lunate bone with widening of the scapho-lunate interval, which, according to Dr Dilley, suggested an injury to the scapho-lunate ligament. 219 Dr Dilley operated on Laws Senior on 5 May 1999 at Westmead. At surgery there was found an interosseous ganglion with a small bone fragment on the palmer aspect of the bone, which had become separated. The lesion was curetted out and grafted using the distal radius as a donor site. Laws Senior's wrist was placed in a splint and reviewed by Dr Dilley on 15 June 1999. 220 The next time Dr Dilley reviewed the plaintiff was 17 December 2002, which gave rise to a report dated 27 February 2003. That report recites the complaint of Laws Senior that he had non-painful clicking of the wrist and the feeling that his wrist would "fall out of joint". He also complained of a line of pain around the distal ulna side of the wrist joint, weakness of grip, including dropping tools of trade. Some building equipment he could not use at all. The grip strengths were measured and the grip strength on the right was approximately half that of the left and each of them were similar to the tests done in early 1999. A CT scan was taken of the lunate bone and the diagnosis was a fracture through cyst in the right lunate, with non-union. Dr Dilley's prognosis was for further surgery in the future being either the removal of the scaphoid, lunate and triquetrum bones or a partial fusion. If those failed a total fusion of his right wrist would be required. 221 In the report dated 18 March 2003 Dr Dilley attributed 50 percent of the plaintiff's problems and disabilities to his long-standing arthritic problem at the distal-ulna joint (a problem not caused as a result of this accident) and the other 50 percent due to the fracture through the cyst in the right ulnate bone with non-union (a relevant injury). 222 Notwithstanding that attribution counsel for Laws Senior submits that no deduction should be made to the plaintiff's damages on account of the "old injury". Counsel puts forward six reasons why no deduction should be made. They are: "1. The evidence of Thomas Laws is that his right wrist was without any symptoms before this injury on 10 March 1999. 2. The trivial nature of the pre-existing injury is explained by Dr. Schutz (defendant's medicals) in his report of 12 March 2003 (page 5 under 'Opinion'). 3. Dr. Schutz (page 8) attributes the plaintiff's symptoms to the injury on 10 March 1999. 4. Every other doctor attributes the wrist symptoms to the 1999 injury. 5. The dictates of the High Court in Purkess –v- Crittenden (1965) 114 CLR 164 are nowhere near satisfied. 6. Professor Connelly has not been relied upon by the First Defendant. The professor's opinion does not assist the Defendant." 223 The reference in numbered paragraph 5 above to Purkess is a reference to the joint judgment of Barwick CJ, Kitto and Taylor JJ in which their Honours discussed the distinction between a burden of proof in proceedings and the "shifting evidentiary burden" which is simply a burden on the defendant to adduce evidence in circumstances where the plaintiff has adduced evidence which would otherwise establish the case. 224 In the present proceedings it does not seem that Purkess has a great deal of relevance. There is a clear difference of view between the medical experts as to the attribution of the symptoms of Laws Senior to the accident. In the end, it is a matter of fact. I accept the evidence of Laws Senior that the right wrist was without symptoms before his injury on 10 March. This is corroborated by the activities that he could perform without difficulty prior to the date of the accident with which this judgment is concerned. In the circumstances I determine that the symptoms suffered by Laws Senior are symptoms directly attributable to the accident in question. However, I accept that there should be some diminution in future earnings on account of the likelihood that his old injury would, with age, have resulted in some discomfort and disability. The report of Dr Dilley is sufficient to overcome the "shifting evidentiary burden" required. However, I do not consider there would be a reduction of 50 percent. 225 I accept Dr Stuckey's assessment, because it accords with the evidence otherwise available, that the "developmental abnormality or previous injury had not resulted in any significant long-term disability with regard to the function of his right wrist and forearm". As a consequence I also accept that the accident injury "has given rise to a permanent impairment" and that an appropriate assessment of "the extent of impairment as twenty (20) percent permanent loss of the useful function of his right arm below the elbow". 226 Dealing with the psychological issues associated with the trauma, Laws Senior relies upon the reports of Dr Morse, consultant psychiatrist and Dr Webster. 227 After reciting the physical symptoms Dr Morse in his first report of 15 January 2003 describes Laws Senior's emotional symptoms and state. He refers to his emotional state and his thoughts being dominated by concern for his son and in particular the responsibility he feels himself that the tyre exploded. He has a vivid recall of the explosion and the vision of his son lying on the concrete and his thoughts that he was dead. This thought causes him to "shudder" every time he thinks about it. He is upset and distressed. 228 Dr Morse refers to his expressions of sadness and tearfulness when talking about his son and his attempts to get on with his life by working. He describes the recited increased irritability and crankiness. Mr Laws Senior is withdrawn and has little or no interest or motivation in doing things. His concentration is affected as he keeps recalling the accident and the situation of his son. 229 His motivation at work is also down and he is described as showing the signs of a person whose point in life, to provide for his family, is no longer present. 230 Laws Senior also used to fish, often with his son, and now is required to do so on his own. He is no longer socially active; nor does he go on holidays. The opinion of Dr Morse expressed on 15 January 2003 was in the following terms: "Mr Laws experienced a most dreadful traumatic event … which caused him direct shock and distress … . The major cause of distress however was the seeing of his son who he thought was dead and the ongoing problems and issues with the injuries to his son has (sic) caused him and his wife and other members of the family. … He has been devastated by what has happened to his son. Firstly he has vivid recall which caused emotional upset and distress and anxiety. He had vivid recall thinking that his son was killed and is of course connected to his son's presently very disturbed condition as outlined above. He is accepting of the fact that his son is very disabled and worried about his future and his current safety and welfare. It is constantly on his mind and he feels responsible not only because it is his son but because he feels guilty about asking for help and not knowing about the danger from the tyres. He has tried to compensate for his quite definitely disturbed emotional state by working hard which is also difficult for the reason outlined above. Given the description of his state, his real lack of interest and enthusiasm and motivation in many areas together with his difficulty to motivate himself to work as outlined above I believe that he is suffering from a definite depressive state. He feels down and low but tries to compensate for this. Has lack of interest in many activities. He says he doesn't now have sleep disturbance but according to Dr Rankin he did previously. There are problems with concentration and short term memory. Given his history, his presentation and what his wife says I have no doubt that he is suffering definite depression which he tries to ignore and mask. Although he still continues to try and work with some difficulty he really gives the impression of someone who is quite down and depressed and sad and I would make a diagnosis of Major Depression . Although this is 'a definite serious condition' I believe that although he tries to overcome the symptoms of this condition it is a valid diagnosis to make. … The prognoses will be that he will continue to suffer depression and sadness because of the experience of the incident and because of his son's continuing disabilities and problems. It is likely that as he gets older and he finds work more difficult with the physical problems and with continuing difficulties with his son especially with behavioural disturbance and cognitive problems and difficulties with interaction with other people that this will cause further stresses with viability towards more anxiety and depression. I have no doubt that Mr Laws will be prone to more severe depression in the future. It is always difficult to estimate the outcome of any specific psychiatric therapy but there should be some improvement in his depressed state with the aim of getting a more balanced life of not brooding so much about what has happened and of getting help with his son. This should improve him in various areas but there is no doubt he will never return to anywhere near his pre-morbid level of functioning." 231 The later report of Dr Morse of 24 January 2005 confirms the view expressed in the earlier report. The second report records the medication that Laws Senior had been taking after treatment by a psychiatrist at the Richmond Hospital at the end of 2003 beginning of 2004. He is described as continuing to be subdued, sad and depressed but with some improvement from the diagnosis in his earlier report. While Dr Morse had previously diagnosed Laws Senior as suffering from Major Depression he was in a better state by January 2005 and Dr Morse diagnosed him as suffering Major Depression partially treated with residual features. He was described as "sad and down in reaction to what happened and the continued distress in relation to his son. He is still lacking motivation, interest and enthusiasm, some problems with concentration and a feeling of a lack of future and some hopelessness in regard to this." Notwithstanding those comments further psychiatric therapy was not thought to be of great benefit. 232 Dr Webster was a treating medical practitioner specialising in psychological medicine although he treated Laws Senior for only a short time. Dr Webster, after reciting the history of Laws Senior commented, as have I, that Laws Senior has a tendency "to trivialise and minimise the extent of his problems when compared to those of his son". He also commented on Mr Laws Senior suffering overwhelming anxiety and dysphoria since the date of the accident. This report was done on 29 January 2004. He noted the symptoms that were predominantly depressed moods; disturbed sleep; excess appetite; impaired concentration; and inappropriate guilt. He compared those with the criteria for Post Traumatic Stress Disorder as described in DSM-IV. He prescribed or advised on anti-depressant medication (citalopram), supportive psychotherapy, psycho education and cognitive behavioural therapy. He diagnosed him as having major depression and chronic Post Traumatic Stress Disorder. Each of those, he said, was referrable specifically to the accident that had occurred on 10 March 1999. He commented that immersing himself in work was not an appropriate means of dealing with the Post Traumatic Stress Disorder. 233 As a consequence of the sensible and appropriate course of hearing the action by each of Laws Senior and Laws Junior together and the relative seriousness of the injuries involved in each, there was a far greater concentration by the defendants on the medical evidence and the condition of Laws Junior than Laws Senior. The second defendant essentially relied, on the question of damage, on the submissions of the first defendant. Those submissions were helpful as were the submissions of the plaintiff. Out of pocket expenses were agreed at the sum of $2,337.90 and I accept that sum and award it as part of the damages. 234 In relation to general damages I have, at some length, set out the injuries that were suffered by Laws Senior and which must be taken into account. All of the issues with which Laws Senior suffers are not compensable. I was referred by the plaintiff to the judgment of the Court of Appeal in Texcrete Pty Limited v Khavin [2003] NSWCA 337 where a plaintiff with very similar orthopaedic injuries but no psychological injuries was awarded $150,000 for general damages. It is inappropriate to compare directly the general damages in one case with another, however, it is appropriate that the range of damage for an injury of this kind should be ascertained. Certainly $150,000 is within range however, in all of the circumstances, I consider that an appropriate figure for general damages is $120,000. As a consequence interest on past general damages calculated on half of the damage over 8.25 years at 2 percent will be $9,900. 235 As to economic loss, as I have already indicated, I accept the evidence of Laws Senior and Mrs Laws without qualification. I accept that the partnership income was wholly derived from the activity of Laws Senior. By that I do not denigrate the importance of the accounting and clerical functions performed by Mrs Laws, but such functions were supportive of the income earning activities of Laws Senior. In that regard the statement has no significance beyond the proposition that if Laws Senior did not work in the partnership, no income would be earned. It is true that income may not be earned if Mrs Laws was unable to work in the partnership (and certainly would not be received) but that is a longer-term effect. 236 In the circumstances I am prepared to assess, as was submitted on behalf of Laws Senior, the plaintiff's uninjured earning capacity as 80 percent of the partnership income. Laws Senior has been able to return to work, albeit on modified duties but, over time, has increased the range and kind of duties that could be performed. This is not a precise mathematical calculation but an assessment of the loss in earning capacity in the past and thereafter going in to the future. I consider that the plaintiff has clearly suffered impairment in his earning capacity to date and into the future and I estimate that at 20 percent, or $92 per week. 237 On the above basis I award 24 weeks (the period from 10 March 1999 to 1 September 1999) at $450 per week, less 30 percent due to loss of income occasioned by a different injury during that period resulting in an amount from the date of accident to 1 September 1999 of $7,560. I also award for the 406 weeks from 1 September 1999 to 1 June 2007 an amount of $37,352 (at $92 per week). The total for past economic loss is therefore $44,912. 238 As a consequence of the forgoing the interest on past economic loss is $17,599.89, calculated at 4.75 percent and 8.25 years. 239 I have already recited some of the material relating to future economic loss. I have little doubt that there has been some psychological improvement in Laws Senior but overall his condition is as bad as it was and will, over time, worsen. His attempt to deal with the problems that he suffers by working will, itself, take a toll. I accept that having been diagnosed with a depressive illness (either Major Depression or Post Traumatic Stress Disorder) it is highly probable that these issues will return in a manner that will be far more debilitating than the present. I also accept that he will burn out, a term recited earlier from the report of Dr Webster. 240 These assessments will have an impact upon both future treatment costs and his future economic loss. I accept that a time will come where there will have to be a partial fusion and then total fusion of his wrist. I also accept that while Laws Senior may be able to cope with his current depression and psychological problems there will come a time when the anti-depressant medication, which he takes intermittently, will be insufficient and some treatment will be required. As a consequence, and estimating on the material before me, I allow and award an amount of $20,750 for future treatment costs including loss of earnings directly caused by that treatment. 241 Future economic loss is a more difficult assessment. I allow a further year at the same rate as the latter part of the past economic loss (an amount of $4,660). This is calculated by one year at three percent on a wage loss of $92 per week. I also allow a greater amount for the time at which Laws Senior will be unable to work at all. I reduce such an allowance by 50 percent both for the vicissitudes and the possibility that he will, notwithstanding my assessment, continue to earn. I calculate the amount on the basis of five years at $457 per week at three percent, less 50 percent for the vicissitudes, which derives an amount of $52,274. The $457 is an arithmetic calculation based upon the average partnership earning of 2004 and 2005 ($22,140 and $31.594 respectively), each being gross per annum which, assuming the partnership income was 75 percent of the plaintiff's uninjured earning capacity and Laws Senior earned 80 percent of it, calculates to $457 net per week. 242 I therefore award, subject to the issue of election, an amount of $272,433.79. The date of effect of the award will be 1 June 2007 and interest under section 101 will accrue from that date. 243 I now turn to the issues of damage associated with John Rodney Laws (Laws Junior). Damages: John Rodney Laws 244 As already noted injuries to Laws Junior were significantly greater than to his father. The explosion of the tyre propelled, it seems, the rim of the tyre, which struck Laws Junior and propelled him out of the vehicle and on to the concrete. There were significant head injuries and he was unconscious. He was transferred to Westmead Hospital by helicopter. During the course of the transport he required endotracheal intubation; he was admitted to intensive care suffering fracture of the left humerus, extensive fractures of the upper face and right frontal bone, fracture of the pituitary fossa and extensive brain contusions. An immediate CT scan revealed a large right extradural haematoma, which was removed by a neurosurgeon. 245 The next day a further CT scan was undertaken and revealed a large intra-cerebral haemorrhage/contusion in the left frontal lobe with a very large extradural haematoma compressing the right frontal lobe with large bone fragments contained deep within the brain matter of the right frontal lobe. A second neurosurgical procedure was undertaken to relieve intracranial pressure by further evacuation of the extradural haematoma. 246 On 15 March 1999 (five days after the accident) Laws Junior had a Glasgow Coma Score (GCS) of three and was unresponsive to all stimuli. 247 On 16 March 1999 the plaintiff underwent open reduction and internal fixation of his left upper limb. 248 On 17 March 1999 a tracheostomy was performed. 249 On or about 19 March 1999 the Glasgow Coma Score for Laws Junior had improved to ten/eleven and he was discharged from intensive care and admitted to the high dependency ward. 250 On 20 March 1999 Laws Junior commenced eye opening but was drowsy and generally uncooperative. On the next day he was reported to be alert and awake but restless. 251 PTA testing, which Dr Jungfer suggests is the most reliable indicator of likely neurological sequelae of head injury, was commenced on 22 March 1999. Laws Junior scored four out of seven. Laws Junior was being fed by nasogastric tube. PTA testing continued to occur and his score by 25 March 1999 was nine out of twelve and by 26 March eleven out of twelve. 252 Laws Junior was transferred to the general ward on 26 March 1999. He had a PTA test on 29 March 1999 and scored nine out of twelve. On 30 March his PTA score had deteriorated to seven out of twelve; he required prompting with showering and drying; and he was drowsy and had reduced activity tolerance. 253 On 31 March 1999 the tracheostomy was removed, normal feeding was commenced but his PTA test was six out of twelve with continuing symptoms of drowsiness. The plaintiff was transferred to the brain injury unit at Westmead. PTA testing continued. On 9 April 1999 Laws Junior emerged from Post Traumatic Amnesic State. 254 On 2 April 1999 a cranioplasty was performed in which those sections of the forehead and head that had been caved in by the force of the blow were reshaped and a plastic piece inserted in the scull. 255 Laws Junior complained, while in hospital, of poor vision in the peripheral fields, decreased hearing, pins and needles and double vision. 256 Mrs Laws attended on Laws Junior during the entire period of his hospitalisation "all day, every day" (transcript page 489). Such attendance was encouraged by the hospital and Mrs Laws was encouraged to interact (touching, talking, playing music etc.) with Laws Junior. 257 After discharge to his home at Richmond his girlfriend alternated with his mother to attend on Laws Junior on a fulltime basis. The evidence discloses that Mrs Laws picked-up Laws Junior every day and attended to him daily while his then girlfriend was working. Laws Junior attended weekly at the hospital after his discharge. Laws Junior required further admission into hospital (23 June to 6 July 1999) to repair a cerebrospinal fluid leak. 258 The evidence, particularly from Mrs Laws, was that in the early weeks and months following discharge Laws Junior was unsteady on his feet and had great difficulty hearing. Laws Junior would become easily agitated; was cranky and tired. It was at this stage that Mrs Laws first noticed the lack of motivation generally and particularly in relation to his personal cleanliness. This included continual reminders to shower, to change clothes etc. In this regard the attitude of Laws Junior was fundamentally different from that which was the situation prior to the accident. 259 The relationship between Laws Junior and his girlfriend ended at the end of 1999 and Laws Junior lived with his sister Catherine. She had previously commenced a practice of taking him to gym as a consequence of which she is the one who observed liquid running from his nose as he bent over. This was the discovery of the cerebrospinal fluid leak to which earlier reference has been made. 260 During the time that Laws Junior lived with his then girlfriend, his sister, Catherine, had regular contact with the plaintiff at least a couple of time per week. She would take him out for activities together with their mother. 261 The sister encouraged Laws Junior to return to music and play his guitar. 262 Catherine Laws confirmed the evidence, which is otherwise overwhelming, of Laws Junior's significant lack of motivation affecting his personal hygiene (showering, brushing teeth etc.); his physical activities (refusal to go for walks or otherwise go out of the house); and his "energy levels" (being in bed at or about 11.30am and otherwise only being out of bed to watch television). While these issues improved, to which I will return, this lack of activity and capacity to motivate himself is a continuing theme throughout the evidence describing the condition of Laws Junior. 263 Laws Junior first came under the care of Dr Joffe following his first grand mal seizure while on holidays. He was taken to Mudgee Hospital and transferred to Concord Intensive Care Unit. For these seizures he was prescribed Dilantin and later Epilim. 264 The foregoing is an adaptation and repetition, in part, of the written submissions made on behalf of Laws Junior. Most of the foregoing is uncontroversial, at least in so far as it establishes a chronology of events and effects after the accident. To the extent that there is any controversy in relation to the foregoing, I accept that the foregoing is an accurate summary of the evidence that is accepted by the Court in these proceedings. It is necessary, however, to deal with some of the medical evidence particularly in relation to those aspects of the damages claim that are most controversial. 265 The most controversial aspect of the claim for damages is the claim for 24-hour care for Laws Junior and the medical evidence (including evidence of occupational therapists) supporting such a claim. 266 One of the difficulties in assessing, from a defendant's perspective, the genuineness of the claim for 24-hour care made by Laws Junior, is the special or unique aspect of the condition of Laws Junior. Whatever be the need for care, an uninformed or initial impression is inconsistent with the need for 24-hour care. The difficulty, from the position of Laws Junior, is that he is able to walk and talk and (subject to some significant limitations) see and (also subject to other significant limitations) hear. While he cannot smell and taste these are not senses that are obvious to the onlooker. Further his physical condition is not such that, after the plastic surgery, necessarily engender sympathy. Laws Junior looks as if he is a relatively strong, healthy individual who is physically capable of doing all that any other individual of his age can do. The problem is that, if the plaintiff establishes disabilities at the level that it seeks to portray, such capacity and impression make "more necessary" the provision of care at the levels suggested. 267 I give but one example from the evidence before the Court. A person with physical disabilities associated with the problems said to be suffered by Laws Junior, would not be able to gain access to a number of items that puts Laws Junior in danger. Evidence was adduced (and I accept it) that Laws Junior would wake in the middle of the night, go into the kitchen and seek to cook things. Because he has no sense of depth, he would burn himself. Because he has no capacity to recall over extremely short periods he would leave the stove on. One stark example of his short-term memory problems is sufficient. Mrs Laws gives the following evidence: "Question: At home, that is at your place, you have established a routine to help him take his medication? Answer: Yes. Question: What is that? Answer: We have alarms set at 8.00, 2.00 and 8.00 and 'take your tablet John'. Sometimes he gets his tablet ready, goes and gets a drink, has a drink, forgets to take the tablet. We have got a weekly pill container, so I always check to see if he has taken it and if not, he has got to take it. He has the drink and forgets to take the tablet, so we have alarms set to remind him. Question: What period of time would elapse between the taking of the tablet from its container and pouring the glass of water to go down? Answer: Probably a minute. Question: And notwithstanding, the alarm, you do something in addition to the alarm? Answer: Oh yes I remind him, mm. Question: And then look? Answer: I check, yes." (Transcript page 530-531) … "Question: So far as his medication regime is concerned what if anything is done to ensure that he takes his Epilim when it's required? Answer: We have alarms. 8am, 2pm and 8pm at night are his pill times. We have alarms that go off in the morning for 8am and with all the pill times. And I prompt John, you know, 'It's pill time. Have your pill.' When he does take his pill it's 'yay, it's great, yay, good for you.' Praise him. The majority of the time he does forget and I get it for him … Question: What's your observation about what occurs? Answer: For example, we have a kitchen bench where it's here (indicated). That's where the pills are, under the clock. The fridge is behind him. At 2.00, 'Johnny, have your pill.' He will get up and he will take his pill out of – it's a pill container of three pills in each daily container. He will open it up, get his pill out, turn around to the fridge, stand there, open up the Coke bottle, have a mouthful, close it up, put it back in the fridge and walk away." (Transcript page 753) Mrs Laws made it clear in cross-examination that an incident of that kind relating to his medication would happen at least once a day in circumstances where he is required to take his medication three times per day. (Transcript page 703) 268 As previously stated, I accept the evidence of Mrs Laws and, for abundant caution, I state that I accept the above evidence. 269 In order to resolve the major controversies on the damages to Laws Junior it is necessary to deal in some detail with the medical evidence and evidence of occupational therapists. A number of medical experts were called and a number of reports tendered by or on behalf of Laws Junior. Some matters were less in issue than others. Mr Peter Rawling, Clinical Psychologist, gave evidence and reported on a number of tests relating to cognitive skills and the like. Some of the testing showed an average or minimally below average response. Some showed a superior standard. That report was compiled on 29 April 2002, following testing on 22 April 2002. He summarised the injuries suffered by Laws Junior at the accident in the following way: "Serial cerebral CT scanning over the first 4 days post-accident indicated extensive fractures of the upper face and right frontal bone associated with a right frontal extradural haematoma, bi-frontal contusions, extensive subarachnoid haemorrhage extending into the basal cisterns, a small amount of blood in the lateral ventricles consistent with corpus callosum shearing injury and cerebral oedema. Other injuries sustained included a fractured left humerus, bi-temporal hemianopia, diplopia in the right eye, left sensorineural deafness, and anosmia. Two years post-accident, he developed epilepsy which was presumable post-traumatic in origin, although this would have to be confirmed by medical specialists. He was rendered unconscious in the accident and hospital based assessment indicated a PTA [post traumatic amnesic] of 28 days. A head injury resulting in a PTA of 28 days would be classified as very severe and associated with a high risk of residual neuropsychological deficit. He continued to complain of tunnel vision and double vision, deafness in the left ear, a total loss of sense of smell, poor balance and restrictions associated with the fracture to his left arm. There had been a personality alteration characterised by quick reusability to anger. Mr Laws' mother also described regressed, rigid behaviour; social withdrawal' emotional lability; and an inability to concentrate on and/or complete tasks. An initial neuropsychological assessment in May 1999 i.e. 2 months post-accident, revealed a mild to moderate slowing in information processing, a moderate impairment in the learning and memorising of unstructured material apparently due to an inability to formulate appropriate learning strategies, poor verbal generativity and impaired abstract verbal reasoning. The current assessment, now over 3 years post-accident, indicated some areas of improvement in his neuropsychological test performance as would be expected in the normal course of spontaneous recovery of functioning following closed head injury. However, the assessment also revealed a persistent mild to moderate deficit in information processing speed and a mild impairment in abstract verbal reasoning. These deficits are consistent with the after-effects of traumatic brain damage and may now be considered permanent. As Ms Kraiuhin predicted in her report, I too believe that the full extent of his cognitive and behavioural deficits are not adequately reflected in the structured formal test situation. While his formal test scores were generally of an average standard (with the exception of speeded information processing), his ability to cope in a less structured, more pressured, 'real life' situation remains untested. … His personality deficits would also be expected to have a deleterious effect on his interpersonal skills both on a personal and vocational level. The long term prognosis of patients with frontal lobe deficits is often a picture of increasing social isolation and an inability to maximise their potential. I would suggest referral for psychiatric evaluation of his personality alteration." (Rawling page 5 and 6) 270 Dr Michael Delaney also assessed him in relation to his eye injuries. There is no controversy that his eye injury is serious and would prevent him from working in his chosen profession as a builder ever again. He would also have difficulty working as a musician as he needs to read music with one eye covered. These assessments are made from a visual perspective only and arise from the severe head and facial injuries associated with the incident on 10 March 1999. No further treatment is possible to improve or restore his visual acuity or visual field defects. 271 Dr PW Noyce, Ear, Nose and Throat Specialist at Westmead examined him and, again uncontroversially, he states that Laws Junior has suffered, from the accident, damage to the olfactory nerves in the roof of the nose or the olfactory bulb in the anterior cranial fossa as a result of his injury. This, says Dr Noyce, has left him with a permanent lack of sense of smell. While he posits that it may return to some extent, the evidence discloses that that has not been the case. Dr Noyce also refers to the permanent left sensori-neural deafness of a moderate to severe degree and a mild low tone sensori-neural deafness in the right ear. It is likely, says the doctor, that the permanent hearing loss is due to concussive trauma to inner ears sustained in the accident. As best as can be managed the only assessment made by the Doctor of overall sense of smell is a loss of 5 percent of whole person impairment with a complete loss of smell. The percentage loss of hearing in the right ear 6.2 percent, in the left ear 70 percent and binaural percentage loss of hearing is 19 percent. The hearing loss is permanent and will not be helped by surgery or medication. 272 As already stated, the major issue between the parties is the degree of care. Otherwise the medical evidence is not significantly controversial. Medical reports were tendered by GWS (and at least inferentially relied on by Motokov). I refer to Dr Leon Gillian's report, which confirms a number of the injury and/or disability claims. 273 I shall refer later to the report of Dr Sekel, Consultant in Occupational Medicine, when I deal more directly with the evidence of Doctors Jungfer and Buckley. There is acceptance by Dr Sekel of the underlying injuries, but not of the debilitating effect of them. It is also clear that Dr Sekel has accepted the "insight" of Laws Junior as to his own capacities, albeit at a relatively early stage of his post-accident regime (i.e. 2002). 274 GWS qualified, and/or received reports relating to examinations from, Dr Joe Gubbay (Neuropsychologist), Dr Sidney Smith (Psychiatrist), Dr Ross Mellick (Neurologist) and Professor Oakeshot (Specialist in Rehabilitation Medicine). None of those doctors were called and no report of any one of tem has been served or relied upon. I am more confident of the conclusions and inferences on medical capacity (and care levels) as a consequence. Certainly I can infer that none of them would have assisted the defendants' case: Jones v Dunkel (1959) 101 CLR 298; Fabre v Arenales (1992) 27 NSWLR 437 at 444 – 446. 275 The lack of disagreement, if any, on issues such as the above is apparent. GWS tendered the report of Dr Leon Gillam who confirms the injuries to the head and cranial nerves; confirms that the symptoms are now static and permanent and there are no prospects of further recovery. His opinion is that as a result of the accident Laws Junior has sustained: permanent and total loss of smell; permanent and total loss of taste; permanent partial loss of balance; permanent partial loss of hearing; and permanent but habituated non-troublesome mild tinnitus. Notwithstanding that opinion there are differences in detail as to the degree of loss of hearing in each ear and the like. 276 I turn then to the report of Dr Ronald Joffe, treating neurologist, under whose care, as previously stated, Laws Junior came following a grand mal seizure. There seems to be some issue as to the report of Dr Joffe. Dr Joffe, the treating neurologist, issued a report on Laws Junior. The report was served by Mr Wheelahan QC, who appeared for Laws Junior, on the defendants and Mr Wheelahan QC organised for Dr Joffe to attend to give evidence. He was not called on the first day organised and on the next day Mr Wheelahan QC advised the Court that he would not be called. 277 At that time, Dr Joffe's report was part of Exhibit K, which had been received in evidence without objection on Day 7 of the trial (Transcript page 464). By the time Dr Joffe became unavailable, or was otherwise not called, it was Day 10 of the trial and Mr Wheelahan QC indicated that he "was happy for the report to remain in the bundle or, if Mr Campbell asks for it to be removed in view of the fact that he is not here for cross-examination, I am content with that. Mr Campbell needs to consider his position because I have only just told him and he may add some other documents and may either leave it in or leave it out, we will know later, but I won't be calling Dr Joffe." (Transcript page 669) 278 By the time of this exchange, I had read Dr Joffe's report. In submissions, Mr Campbell SC, who represented GWS, sought to have the Court apply an inference that Dr Joffe does not assist the case of Laws Junior because of the failure to call him: Jones v Dunkel (1959) 101 CLR 298. The transcript does not record, nor is there a note on the Court file relating to, the withdrawal of the report of Dr Joffe. Notwithstanding the failure to call Dr Joffe, in the peculiar circumstances, I am not prepared to draw an adverse inference pursuant to Jones v Dunkel. 279 According to the Court records, Exhibit K includes Dr Joffe's report. I take the view that Dr Joffe's report is technically before the Court. I will summarise its import. Given the high regard I have for counsel involved, I am prepared to assume that the record is deficient, or that some agreement between counsel was not reported. I make it clear, assuming Dr Joffe's report is not before the Court, I would not, in the circumstances of the failure to call him and the service of the report, draw such an inference. 280 Further, notwithstanding my summary of his comments, I consider the report is only confirmatory of other reports (which other reports go beyond the matters dealt with by Dr Joffe) and, whether or not the report is before the Court, the result would be the same. Primarily, on the issues of controversy it is the reports of Dr Jungfer and Buckley that are determinative. 281 Dr Joffe recites that Laws Junior had 4 craniotomies and since that time has had no further surgery. He describes the notes provided and his understanding of the history of Laws Junior in the following way: "It is quite clear that he suffered a very significant injury, with the fractures as described, but he also had contusions in both frontal lobes and a large extradural collection on the right side. He had a post-traumatic amnesic period of at least 3 weeks, and from what I can make out, his Glasgow Coma Scale varied, but at least on one occasion it was reported as 12. There is no question at all, given the CT findings, the GCS and the post-traumatic amnesic period, that he suffered a severe injury." He goes on to recite that, at the time that he had seen him, Laws Junior had suffered 8-10 grand mal seizures. 282 He recites his current position in the following terms: "He has diplopia [double vision], which was present all of the time. He has a bitemporal hemianopia [blindness in half of the normal visual field], so that some times he bumps in to objects when he walks. This is particularly when in unfamiliar surrounds. He has to be very careful of how he judges distances. He has anosmia, and his smell has never returned following the CSF rhinorrhea [the discharge/leak of cerebrospinal fluid previously mentioned]. His taste has also been impaired, but he can taste certain food. … His hearing is decreased on the left side and he has a high-pitched ringing, which is not constant. If he leans on the left side he gets pain in the left arm which, of course, was plated and screwed following the fracture to humerus." 283 Dr Joffe reports: " ON EXAMINATION He is a very pleasant man, with a blood pressure today of 130/70; he was in sinus rhythm. There was no abnormality in his cardiovascular system, respiratory system or abdomen. He has a coronal scar stretching from one ear to the other, and he also has another scar which runs at right angles to this. He has the scar of the tracheotomy and also a scar over the left arm where he had the plate and screws inserted for the fracture of his left humerus. Neurologically he has pale disks. He has a bitemporal hemianopia, and he has a significant eye-movement disorder, with a left exotropia and a 'see-saw nystagmus [an involuntary, rhythmical movement of the eye]'. This is an extraordinary eye movement disorder, in which as the intorting eye rises, the extorting eye falls. The actual disturbance may give rise to oscillopsia, in which objects appear to be moving. In addition to this, he has anosmia, and his hearing on the left side is impaired. OPINION It is my opinion that John has had a very significant head injury, from which he has been very lucky to survive. He has been left with a number of problems, which are permanent. Apart from the permanent scarring: He has continual oscillopsia, which in my opinion equates to a permanent impairment of 30 percent. He has constant bitemporal hemianopia, which I assess as a permanent impairment of 25 percent. He has anosmia, which I assess at 3 percent permanent impairment. He has decreased hearing, which in my opinion is 8 percent permanent impairment. He has seizures which amount to 40 percent permanent impairment." 284 The opinion of Dr Joffe in the scheme of these proceedings, is not controversial. It is a useful summary of evidence in other reports and lay evidence and I will treat it as a submission only. The assessment of Dr Joffe of permanent impairment was intended to be a whole of body permanent impairment and the percentage permanent impairments to which Dr Joffe refers are 104 percent of whole of body impairment. While such an arithmetic process is impermissible because some of the disabilities overlap and they are, after all, only assessments, nevertheless they give, as a convenient summary, an understanding of the level of impairment, otherwise disclosed in other medical reports, of a person who, to a lay observer, appears "normal"; can walk, talk and answer questions, albeit in each case with some difficulties. 285 It is on the effect of the above that the major controversy on the medical reports centres. That controversy is the level of care required of Laws Junior. 286 The claim made on behalf of Laws Junior and based upon the opinions of Dr Stephen Buckley, Dr Jungfer and Ms Shepherd is for 24-hour personal care assistance, 7 days per week provided by way of shifts. There are claims for case management requirements. Given that the life expectancy of Laws Junior has not been reduced significantly, this is essentially a claim for full-time care and assistance for a period of some 50 years from the date of judgment. Of itself, on current costs arrangements, such an order would amount to over $8.5million. As one would expect, given the amount of money involved, the defendants have examined very carefully this claim and have, in that process, adduced evidence relating to the necessity for such a regime. 287 The plaintiff, Laws Junior, relies, inter alia, upon the reports and evidence of Dr Patricia Jungfer. Reports from Dr Jungfer dated 25 September 2002 and 30 August 2005 were tendered in evidence. The reports from Dr Jungfer agitated, themselves, some controversy. Dr Jungfer's first opinion was that Laws Junior required 4 hours of attendant care per day. There were other requirements to which I do not, at this stage, go. Her later report, dated 30 August 2005 and relating to a consultation on 27 July 2005, opines the need for 24-hour per day supervision in relation to attendant care needs. The other matters of care are not much changed before the first and second reports. It is necessary to deal in some detail with these reports. 288 In the first report, after repeating a number of the matters referred to in other reports, including the presence of significant adynamia, amotivation and difficulties with regards to planning and organising activities on a day-to-day basis, Dr Jungfer opines that Mr Laws "is considered to have a cognitive disorder secondary to a head injury with predominant front lobe impairment and an organic personality disorder adynamic type". She also said: "Based on his cognitive impairments and personality change I believe that Mr Laws would not be capable of independently managing his financial affairs, nor do I believe that he is capable of instructing counsel. Mr Laws is considered to have 24 percent impairment of whole person for his brain injury with no estimates of impairment for his visual, auditory or olfactory impairments." [This of course was done in 2002 before some of the reports to which I have already referred. It should be pointed out, if not obvious from the title of the proceedings, that a tutor, his sister, conducts the proceedings on behalf of Laws Junior.] 289 Dr Jungfer diagnoses Laws Junior and recites: "Based on the information provided in the clinical history of Mr Laws and review of the circumstances of the injury in the initial clinical data Mr Laws has sustained an extremely severe closed head injury and has a cognitive disorder secondary to a close head injury with predominant frontal lobe impairment . Mr Laws also presents with an adynamic personality disorder that occurs directly as a consequence of his structural brain injury." 290 Further Dr Jungfer reports: "Mr Laws has a number of physical impairments consistent with the nature of the injury he sustained. The impairment of balance, hearing, smell and taste, the visual disturbances, are all as a direct consequence of underlying structural brain injury. Mr Laws is noted to have difficulties with regards to his personality. He is immature, child like, emotionally labile, adynamic and minimises his impairments, that is he has an impairment of insight. He has difficulties with regards to his capacity to live independently, he is unreliable and forgetful and has significant difficulties with initiating activity. Mr Laws demonstrates quite substantial changes with regards to his personality, he tends to worry and cognitively ruminate but not carry through any form of action. He has some motor restlessness and a sleep disturbance. Mr Laws has difficulties with regards to his short term memory functioning and is unable to manage his financial affairs independently. The range and nature of the symptom complaints are consistent with the regions of the brain that have been injured at the time of the head injury. Mr Laws does not have any acute psychiatric symptomatology, that is he does not have a manic depressive disorder or psychotic condition. His changes in behaviour are enduring and directly as a result of structural injury to the interior and basal forebrain areas. Some of the features of his psychomotor slowing and balance impairment are likely to be related to damage to the mid brain or subcortical regions. Mr Laws as a consequence of his impairment and injuries has had a dramatic change in the quality of his existence. He has developed post-traumatic epilepsy. He is reliant on his family members for supervision and support. He has lost all social contacts and is unable to return to his pre-injury occupational areas, that is playing in a band and working as a builder. Mr Laws would not be capable of working independently, he will always require structure, supervision and support and with the combination of physical and cognitive impairments it is unlikely that he would be able to find a gainful employment on the open market when considering the cognitive and physical impairments he has. … It is unlikely that Mr Laws will ever have a normal healthy adult intimate relationship, he is more likely to form a relationship with someone who needs to care for him as is the current quality of his relationship. He would be incapable of independently parenting or supervising his own children. … He is also vulnerable to exploitation due to his naivety, childlike behaviour and lack of insight. Mr Laws has no past or developmental history of abnormalities." 291 In the latter report, dated 30 August 2005, Dr Jungfer repeats a number of the matters recited in the earlier report. In her executive summary to the latter report she says: "1.2 Additional to the cognitive impairments he has a post-traumatic seizure disorder, is anosmic and has hemianopia. The regions of the brain that have been damaged by the blast injury include that of the basal forebrain and in particular the olfactory regions and optic chiasma. In addition it is proposed that he has damaged the primary motivational anatomy, that is the nucleus accumbens and other regions that are of a significant role in the maintenance of the motivational state that allows a person to achieve goal directed behaviour. He has planning and organisational impairments but his memory functioning and attentional skills are relatively preserved although there are abnormalities. His seizure control is poor, he has a sleep disturbance and difficulties with regards to his capacity to organise and structure his day-to-day activities. He can be impulsive and has problems with respect to crossing the road and is considered unsafe to be left alone for periods of time. 1.3 He has problems with regards to organising and structuring his day-to-day activities, difficulties in formulating a plan of what to do and then choosing actions that may be available. He has problems sustaining tasks. Currently his mother and girlfriend act as his carers and offer him 24 hour per day care. 1.4 Mr Laws is not capable of paid employment. His injuries and deficits that he now currently has are solely as a consequence of the head injury. They are not amenable to training and his level of independence cannot be improved. Mr Laws' impairments and difficulties occur solely as a consequence of the blast injury. His motivational disorder is as a consequence of structural injury to the brain. Due to an abnormality within this primary motivational circuit, strategies recommended by the occupational therapist of the defendant will not [be] sufficient or effective. 1.5 Mr Laws' impairments and deficits are permanent and there is no prospect for paid employment. He is unlikely to be able to form another intimate relationship and his social networks will remain restricted. He places himself at risk due to his impulsivity and his lack of insight with regards to the extent of his impairments. Mr Laws requires supervision, care and requires 24 hour per day intervention. He is incapable of being left alone for more than brief intervals of time, requires supervision for his washing, meal preparation and activities of daily living. He is incapable of independently managing his financial affairs. 1.6 Mr Laws' impairments and deficits are permanent. There is no further prospect for recovery. While there may be some improvement in his functional level with the use of stimulants this may cause additional problems associated with his seizure control. He could also benefit from the manipulation of his anti-convulsants to improve his seizure control and possible assist with his aggressiveness and irritability." 292 While I have repeated at length the summary of the report I do not attempt otherwise to summarise the report in its details. There are however aspects of the report to which I need to go. Dr Jungfer deals with a number of the reports by a number of other medical practitioners. It is sufficient for my purposes to state that her assessment of those reports is consistent with the summary that I have reiterated above. The diagnosis offered by Dr Jungfer has changed in some significant ways. Apart from the matters referred to in the earlier diagnosis she now (i.e. at August 2005) takes the view that Laws Junior presents "with a diagnosis of a major depressive illness that occurs in the context of a severe closed head injury. He also has features consistent with that of a change in personality, apathetic state due to a closed head injury and a cognitive disorder secondary to a closed head injury. He has grand mal epilepsy." 293 Finally it is necessary for me to repeat the recommendations of Dr Jungfer on the management of Laws Junior. Her report says: " 11.0 MANAGEMENT 11.1 It would be my recommendation that Mr Laws receive an occupational therapy program that provides structure and activity for him on a daily basis. He requires the presence of attendant care to prompt, stimulate and motivate this activity and to ensure that he persists with such tasks. While he can be left on his own for periods of time, in these periods of time he is prone to impulsive and risk-taking behaviour. He also has a disturbance of sleep. It is my opinion that his care requirements and management requirements are that of 24 hour per day supervision with appropriate structural and of avocational activities. 11.2 A trial of medications such as the stimulants might assist with regards to his level of persistence of tasks or activities but is not a substitute for the care that he requires. Anti-depressant therapy may be of value for his mood symptoms, but this could have a negative effect on his epilepsy. One might recommend some psychological intervention to assist him with regards to his adjustment. Manipulation of his anti-convulsants to assist in regulation of his affect and anger control may also be of value. 12.0 OCCUPATIONAL FUNCTIONING 12.1 Mr Laws in my opinion due to the combination of his cognitive impairments, emotional dysfunction in particular the apathy state is considered unsuitable for paid employment. Due to his multiple other physical impairments and in particular his vision impairments he also is not considered safe to work in a sheltered environment such as a sheltered workshop. He has no functional earning capacity." 294 I turn then to the report of 7 January 2003 of Dr Buckley also relied upon by Laws Junior. Dr Buckley is a Consultant Physician in Rehabilitation Medicine. As one would expect Dr Buckley recites the history of the accident, the past history of Laws Junior and deals with a number of the current problems, most of which have, in one form or another, been dealt with already in this judgment. He lists and explains Laws Junior's visual impairment, hearing problems, poor balance, anosmia, the shaking of his left arm and lack of strength in it, seizures, his memory problems for short-term memory, his variable emotional state and his increased levels of anxiety and aggression and the problems that he encounters in daily living activities and domestic chores. 295 In his report of 7 January 2003 Dr Buckley concludes that the level of care required is less than 24 hours per day. A further report was given on 31 March 2003 but it dealt solely with the capacity of Laws Junior to provide instructions and the need for a tutor. A further report was provided on 24 July 2003 relating to a full time travelling companion and the last report was provided on 9 June 2005. I turn to that report. 296 The last report of 9 June 2005 provides an assessment of the care requirements for Laws Junior which include 24 hour per day care by a personal care assistant provided over appropriate shifts; 8 hours per month case manager in the first 6 months at the commencement of any significant new arrangement (say every 5 years) and thereafter 4 hours per month; full time travelling companion; medical care of the following kind: general practitioner 6 visits annually; consultant physician in rehabilitation medicine (traumatic brain injury specialist) 2 visits annually; neurologist, 2 visits annually; ophthalmologist, 1 visit annually and a physiotherapist at 6 visits annually. 297 He also recommends modifications to the bathroom and air-conditioning in his home, membership of a club or gym with heated swimming facilities, a carer who is capable or driving a motor vehicle, funds management and reiterates that Laws Junior is unemployment on the open employment market. 298 In reciting the progress, or otherwise, of Laws Junior, Dr Buckley says: " PROGRESS Mr Laws and his family told me that things are going on about the same. He has had no new serious injuries, illnesses, accidents, operations or re-admissions to hospital. He apparently developed, at one time, however, a mild thrombocytopenia, which was possibly a reaction to Epilim. He said that his lowest recent count of platelets was 122,000 on 28.10.04." 299 Dr Buckley once more recites the ongoing problems in similar terms to his report of 7 January 2003. By that I do not suggest that Dr Buckley repeated the matters but simply noted that in most instances they had not significantly changed. Dr Buckley notes that Mr Laws stated that both arms continue to shake and the left upper arm swells. He also noted that his last seizure was 2 years and 8 months ago although qualified that by a note that his partner felt him "shaking in bed with his teeth gritted, and this condition will last a few seconds. She may wake during such an episode and he is quite okay when she does so. Sometimes when he wakes in this situation he has severe urinary urgency. They said that Dr Joffe has called these 'night tremors'." In connection with his memory there are some differences. Dr Buckley notes in his report of 9 June 2005: " Memory : Mr Laws continues to write down messages, and without doing so he could not be cued. He would, however, recall a message if he was confronted with it. He forgets when he is told things and when he did things. Sue said, for example, they will have done some activity in the morning and he will tell people 'last week I …'. He will watch the same movies over and over and asks questions during the movie even though they have seen it many times before. He is unable to read properly due to his eye sight, and the difficulty of remembering what he has already read. He can read one word at a time. He does no cooking, but will make a cup of tea if supervised. They are concerned to allow him to do this independently due to the risk of an accident or leaving the stove on. He has difficulty recalling if he has put sugar in the tea. He needs reminder to take his tablets and to shave and clean his teeth. He rarely showers, preferring to bathe, and the completion of the task is supervised and checked by [his partner] and his mother to make sure that he has completed washing himself, and that he does not go to sleep in the bath or otherwise slip under water. He chooses his own clothes but [his partner] or his mother must place them in order. Mr Laws himself checks that he has completed all his tasks by doing the same routine day after day. Occasionally he will be sent across the road to the … supermarket, and will obtain one item without a list, but would need a list for more. He does continue to become overwhelmed with all the items on the supermarket shelves, and usually therefore they shop together with him pushing the trolley and [his partner] or [his mother] keeping their distance from other people. He will nevertheless bump [them] with the trolley regularly." 300 Dr Buckley in this latest report also remarks that the comments from his family were that his temper was worse and he becomes frustrated. The opinion expressed by Dr Buckley in the latest report was that there was in essence no particular change of Mr Laws' condition. However, the family had emphasised in the latest interview the dependence of Laws Junior upon them for his ordinary activities. For that reason Dr Buckley opined that "therefore … my initial suggestion for going 4 hours a day of care, would be insufficient." Dr Buckley said: "Taking into account, in particular, Mr Laws nighttime activities and his very poor sleep, I now believe that he would require the full time care and supervision of another person. In view of the fact that he gets up so frequently at night then he would require care in a manner which is not of a 'sleep over' nature, but rather where there is a person available at all times. I therefore propose that he requires 24 hours a day supervision by other people, and that a significant proportion of this 24 hours would be waking care." 301 Tendered on behalf of Laws Junior was also a report of CDC (Complete Domestic Care), which is a report of an occupational therapist. The last of those reports cites the report of Ms Henry (a previous report of 9 July 2003) and the later reports of Dr Buckley and Dr Jungfer. It deals with the necessity for 24-hour care and the costs associated with the provision of such care. It also deals with the appropriate modifications to the residence of Laws Junior to take account of his needs. It otherwise confirms the approach of Doctors Jungfer and Buckley in their later reports. 302 Dr Jungfer gave evidence on the reasons for her change in opinion (or the change in opinion of the company providing the reports) from 4 hours attendant care to 24 hours attendant care per day. Dr Jungfer was influenced significantly by Dr Buckley's opinion. Otherwise she made it clear that her original opinion was based upon the assumption that there would be post-injury improvement, which did not occur. She remarked that there was probably deterioration in his mental state and he, latterly, had seizures, despite medication change. Her concerns were those together with safety issues and otherwise the more extensive history from his girlfriend and his mother. Lastly Dr Jungfer referred to work she had done for a seminar of occupational therapists being a Brain Injury Interest Group on disorders of motivation in which she had reviewed the English literature in the area and was therefore no longer convinced that training and other therapies were effective. 303 The combination of all of those matters, together with his behavioural impairments in particular, caused Dr Jungfer's change of view. She was, as one would expect, cross-examined on these issues and in particular on the change of view as to the level of care. The cross-examination was thorough and effective. However, it did not dent the view that she held; nor did it undermine the information upon which she relied; nor her conclusions. Given that I accept the evidence of Mrs Laws, in particular, and Ms Badham (Mr Laws' partner), the material upon which her opinion is based is material that I accept as the fact in the matter. This does not mean that I accept 24-hour care or 24-hour care of the kind proposed by Laws Junior. 304 Dr Buckley was also cross-examined. Dr Buckley was cross-examined by telephone because of his commitments overseas. During the course of that cross-examination it was put to Dr Buckley that a brain injury unit, if it were permitted to have involvement with a patient in a position of Laws Junior, might be able to achieve a long-term goal of enabling him to live independently in the community. The answer given by Dr Buckley is instructive: "I'm a consultant rehabilitation physician operating the Brain Injury Outreach Team in Ryde, not in Westmead, but at the Royal Rehabilitation Centre Ryde in association with Royal North Shore Hospital, and the chance that I could, with the assistance of my highly skilled rehabilitation team, transfer Mr Laws, whose accident was in 1999, from the circumstances that he is actually in now to some new and more independent circumstances, would be, in my opinion, virtually nil." 305 The cross-examination of Dr Buckley otherwise confirmed the basis of the view he has expressed. Dr Buckley was an extremely impressive witness, even over the telephone, as was Dr Jungfer. I accept their evidence and I accept their explanation for the alteration in the requirements for care. Because I accept the evidence of Laws Senior, Mrs Laws and Catherine Laws, and with reservations relating to his condition Laws Junior, I find that the factual basis for the alteration in their recommendation of care levels is made out. 306 The reports tendered on quantum by GWS suffer from some significant problems. None of them, I hasten to add, reflect on the integrity or capacity of the experts who have compiled the report. 307 It seems from the material that I have accepted that there was a significant deterioration in the prognoses for Laws Junior between the early period and later periods. As a consequence the report of Dr Sekel, dated 22 May 2002, on the findings I have made, do not meet the factual circumstances which have been adduced in evidence. Nor does his report of 22 July 2002. On the material that was before Dr Sekel, he came to the view that he "now appears physically and intellectually fit to return to work as a performer in a band". The material that I accept as an accurate reflection of the condition of Laws Junior is such that he neither hears sufficiently well to play in a band nor sees sufficiently well to read music. Loud music induces pain in his ear. Further his capacity to play an instrument as described in evidence is a capacity to play for extremely short periods following which the weakness in his arms and his trembling prevents it. So too does his lack of concentration. 308 Further the assessment of Dr Sekel that Laws Junior is "physically fit to work as a process worker in situations where fine sense of depth is not required" is, on the material adduced in these proceedings, which material is accepted, relating to his condition in later years, manifestly incorrect. The permanent and untreatable loss of hearing, balance, taste and smell and tinnitus, all described in the report of Dr Leon Gillam, tendered by GWS, is seemingly inconsistent with the proposition that he could perform as a guitarist on stage and in the midst of loud music. No countervailing reports are tendered to qualify in any way the issues associated with loss of sight and loss of concentration. 309 I have earlier remarked at the inability of Laws Junior to comprehend the full extent of his disabilities. Further his adynamia and amotivation is seemingly crippling. None of these factors seem so have been given appropriate weight in the formation of the opinions of the rehabilitation specialists qualified by GWS. Nor have they taken account of the risk-taking activities of Laws Junior, which activities are seemingly undertaken because he fails to appreciate his limitations. 310 Professor Jones was called by GWS and his report forms part of Exhibit 23. His report is dated 18 August 2005. He refers to the trip of Laws Junior to the examination and his post traumatic epilepsy. He also notes that, as at 18 August 2005, that the last epileptic seizure was June 2005. Professor Jones recites continuing physical disabilities as recounted by Laws Junior and came to the opinion that: "Mr Laws has suffered severe head injuries with continuing brain impairment notably double vision, visual field impairment, left auditory loss, loss of the sense of smell, and epilepsy. There is sparing of much of his cognition although his memory is adversely affected. I would regard him as independent in personal care and in some activities of daily living of a domestic nature. He lives in a protected environment with his parents and/or girlfriend who undertake domestic chores for him, although I am of the view that he would have the capacity to undertake some of those domestic activities himself with a little extra training." 311 The first aspect of the above opinion is that the physical capacity of Laws Junior to undertake such activities is not in issue in these proceedings. The safety issues addressed by Professor Jones relate to the physical issues associated with his loss of smell and the risk of fitting. Professor Jones is "not of the opinion that [Laws Junior] requires 24 hour per day care". Professor Jones accepts that "the injuries that [Laws Junior] has sustained as a result of the accident of 10 March 1999 have substantially impacted upon his capacity to engage in his normal domestic, social and recreational activities". He concludes that the prognosis of Laws Junior "is guarded and there are many impairments that [Laws Junior] still suffers, although they are more significantly of a cosmetic nature." 312 The only "cosmetic" impairments, on the evidence, is the scarring over the head from ear to ear and perpendicular to it to the temple and the eye movement [the "see-saw nystagmus"]. As such the proposition that the impairments of Laws Junior are "more significantly cosmetic" is rejected. Further this opinion is formed without regard to the most telling disabilities suffered. Professor Jones does not deal with the lack of insight into incapacity; the adynamia and amotivation; and the consequential risks associated with those problems. I cannot therefore accept the opinion. It does not deal with the issues that Laws Junior faces and cannot be an accurate view of his care needs. 313 The same criticism, although different in the details, applies to the report of Tony Mitchell, Consultant Physiotherapist, of 13 August 2003 and, although reference is made to the adynamia/amotivation aspects, to the report of Raymond Field, Clinical Occupational Psychologist. 314 The issue that must then be addressed is the issue associated with the assessment of the level of care and its translation into practical steps for the care of Laws Junior. 315 As previously stated Laws Junior tenders and relies upon the three reports of Ms Linda Shepherd, Occupational Therapist. The report of Ms Kareena Henry, Occupational Therapist dated 9 July 2003 was originally tendered but she was unavailable overseas and the report was withdrawn. Because of Ms Shepherd's involvement in the first report of 9 July 2003 over the signature of Ms Henry the "Henry Report" was the subject of some evidence before the Court. There are three reports tendered authored by Ms Shepherd dated respectively 13 October 2005, 21 October 2005 and 19 April 2006. The defendants, in particular GWS, rely upon the reports of Ms Joanne Oates and Ms Sue Beaver. 316 As a result of the differences in opinion of the occupational therapist, and with the consent of the parties, the occupational therapists relied upon by each of the parties was ordered into a conclave for the purpose of seeking to resolve the differences between them and to answer the question as to the recommended levels of care on certain factual scenarios. Unanimity was not forthcoming and while there is a joint report (Exhibit 11), the report was said, by Ms Shepherd, not to have altered her view as to the need for care. 317 Exhibit 11 commences with a general comment as to the holistic approach of occupational therapists generally and in particular those that were participating in the conclave. The report then sets out five areas of clinical testing and observation to determine an individual's ability. They are: (a) Physical Skills: range of motion; strength; coordination; and balance. (b) Cognitive Skills: self-monitoring; memory; problem-solving; perception; planning and sequencing; initiation; and motivation. (c) Sensory Skills: visual; auditory; tactile; smell; pain; and temperature regulation. (d) Interpersonal Skills: functional, written and verbal communication; behaviour; social skills; and interaction with familiar and non-familiar people. (e) Intrapersonal Skills: self-esteem/confidence; insight/awareness; initiation/motivation; and emotional status, including stress, anxiety and depression. To some extent there is an overlap between the intrapersonal skills defined in paragraph (e) and that part of the cognitive skills dealing with initiation and motivation. 318 The conclave report makes clear that there is a variation in the opinions of the participants based, predominantly, on the disparity of information provided by Laws Junior and his family and the variety of medical reports provided. There was also a difference between them as to the degree of learned dependence, which was the subject of examination, and cross-examination of both the medical and occupational experts together with members of the family. Exhibit 11 then refers to the care regimes and provides two options. The distinction between the two options is that option 1 reflects the adynamia, and initiation and completion of tasks to which reference is made in the most recent medical evidence of Doctors Jungfer and Buckley. Option 2 is based on a lesser level of problems in those areas. Option 1 is in the following terms: "Question 3 The following care regimen has been agreed on assuming that adynamia, initiation of tasks and completion of same as well as behavioural/intrapersonal problems are as acute as reflected in the most recent medical evidence of Dr Jungfer (30/8/05) and Dr Stephen Buckley (9/6/05). 7am-9am: Attendant care to assist with rising, initiating and executing self-care and domestic chore regime, as well as monitoring medication and planning daily tasks + transport if required. 9.00am-4pm: Daily activity as structured by a case manager eg. Community program Sheltered employment Avocational activity eg Shooting Transport assistance home is supported. 4.00-6.00pm: Return home Supervision of activity not considered necessary for safety. 6.00-8.00pm: Attendant care to assist with meal planning + preparation, hygiene, evening activity planning + medication. 8.00-10pm: Evening activity of choice. 10.00pm-7am: Overnight without care and appropriate infrastructure (see over). On weekends and days when @ home an additional 2.5 hours is recommended in the middle of the day to prompt lunch and meds, monitor behaviour and do additional domestic chores, community tasks, financial management etc. This is on the assumption that a likely split of at home and away days is 3:4. Therefore 3 days @ home = 6.5 hours/day attendant care + 4 days away from home + 4 hours/day attendant care We would define the appropriate infrastructure as including: (1) Task modification/training: Provision of occupational therapy for an initial intensive period (say 20 hours one-off) + attendant carer training (say 10 hours one-off) (2) Environment modification or equipment prescription: Securepro Security System (see attached) @ $890.00. That will call back up to 10 people in the event of a medical or environmental emergency + can be individually program to match clients function. Memory aids as defined in the report of Belinda Shepherd. Difference between standard mobile phone and one with memory/calendar/alarm function. (3) Provision of care as defined and additional services as follows: Case management to establish a manual of suitable activities including appropriate supervision, recruitment and management of attendant care providers, monitoring of weekly program and establishment of medical and therapeutic review. Recommended set up provision of 10 hours with 12 hours annual provision of services. Protective Commissioner services for fund management. Respite/holiday care of 24 hours/day for 7 days a week for 4 weeks per year." 319 Because I accept the most recent medical evidence of Doctors Jungfer and Buckley it is unnecessary for me to deal with the care proposals contained in Option 2 of Exhibit 11. 320 Further even in relation to Option 1 there are some significant difficulties with the acceptance of this material. First, it is clearly inconsistent with the reports of Doctors Jungfer and Buckley, who prescribe 24-hour care. Secondly, as was made clear in the evidence of Ms Oates, the conclave had received the later reports of Doctors Jungfer and Buckley only on the morning of the conclave and was not, at the time of the report, fully conversant with all of its details. Thirdly, the conclave, in both Option 1 and Option 2, took account of neither the anxiety displayed by Laws Junior nor the risk-taking activities in which he had been engaged during the time that he was unsupervised. 321 In that latter regard Ms Oates said: "… There was a reference in Dr Jungfer's report, and I only read it that morning, to risk-taking behaviour, being unsafe crossing the road and being unsafe in an unsupervised setting. There was no clear examples amongst any of the occupational therapists that that behaviour had been demonstrated and there were no clear examples in the evidence that we reviewed that Mr Laws had participated in anything risky or that put his safety in danger. So that was the thing that was not taken into consideration because there were no concrete examples that he had participated in risk-taking behaviour. Question: And that process that was taken, do you regard that as consistent with sound clinical practice in your area of discipline? Answer: Yes. Question: Do I take it that what was not taken into account was the risk-taking feature of the issues; is that right? Answer: Yes." (Transcript page 1304) 322 The proposals in Option 1 must therefore be qualified by the absence of any consideration of the risk-taking features of the activities undertaken from time-to-time by Laws Junior, if the Court concludes that there are risk-taking features. As I have sought to make clear, the Court has so concluded. 323 The other matter of concern was the effect of a film of the activities of Laws Junior. The film did not disclose all of the time during which Laws Junior was the subject of surveillance and the film that was tendered was not all of the film that was available to the defendant. Nevertheless there are aspects of the film and the depiction of the activities of Laws Junior, which the defendants say are inconsistent with the evidence given in Court. 324 I do not accept that submission. The surveillance, in general, shows Laws Junior as a passenger in a car; as a passenger on a train; crossing the road; and going into a shop. Other activities are disclosed. In each of the activities filmed, Laws Junior was in the company of others. The activities were matters about which evidence was given by the family members and others who have been involved in his care. 325 The film is not inconsistent with, and requires no greater concentration levels than, the activities of a child. Further evidence was adduced that during the time of these excursions, for example, Laws Junior sought to cross the road in front of an oncoming car and one of his companions was required, urgently, to grab him and pull him back on to the footpath. 326 It is the risk-taking aspects of the activities of Laws Junior, together with the inability of the medication to control his seizures totally, that is most relevant the level of care recommended by Doctors Jungfer and Buckley. 327 The other aspect of Option 1, which is problematic from the point of view of the Court, is that it assumes, for which there is no evidence, that there would be supervised community activities available and appropriate for Laws Junior to enable him to go without supervision for the period between 9am and 4pm. 328 There is no evidence before the Court that there are programmes in the community that meet the kind of problems with which Laws Junior suffers. Further if "avocational activity" were undertaken, presumably it would require transport and supervision. This was (even without the availability of the conclave report, Exhibit 11) the evidence of Dr Buckley. Likewise the period of unsupervised time at home assumes that, during that time, Laws Junior would be unable to be involved in activities, which were unsafe. Every day activities always contain some element of risk. Even young children undertake activity with risks. If they did not, they would not develop. However, in the case of Laws Junior we have a person who knows how to undertake tasks; has no motivation or organisational capacity to undertake them at the correct time; and has no understanding of his incapacities. In those circumstances to leave Laws Junior in a home unsupervised would be courting disaster. Further, absent a restraint on his freedom (e.g. if he were locked in a room) there would be no way of ensuring those risk activities were not undertaken or that he would not leave the home and undertake even riskier (and unknown) activities. 329 I have already stated that I do not consider that the family has inhibited or discouraged the undertaking of activities by Laws Junior. The family sought (and seeks) to have Laws Junior undertake tasks as often as is possible. They include going to the local shop, although he is capable, at that shop, of buying only one item. He can go to the local shop to buy a hamburger. It assists that each of the local shop owners knows him and the problems that he suffers. One of them was prepared to try him out in a job and the family encouraged him to undertake it. 330 It is true that with proper case management an occupational therapist may be able to plan his activities in a way that increases his level of independence. It is also true that the case manager may not be able to do so. Dr Buckley opines that it is impossible and I accept that it is more probable than not that no improvement can be achieved. However routine one may make the undertaking of certain tasks, one cannot plan a day that obviates the risk-taking activities of Laws Junior, unless there is supervision. 331 Some evidence was adduced relating to the capacity or availability of alarm systems that would enable persons to be contacted if Laws Junior went into certain parts of the house or undertook certain activities. If that were utilised, you would still have to have a person available to respond to the alarm. And the response would necessarily be ex post facto. 332 However a combination of the alarm system with other measures would seem to enable the provision of 24 hour care otherwise than by way of shifts. In other words, the provision of an alarm system of the kind referred to in evidence would seem to allow the provision of 24 hour live-in care in circumstances where the carer was not necessarily on duty, or on duty at all times, during the night. 333 Unfortunately, on the current evidence, that would mean any such carer would have an extremely disturbed sleep. There is a possibility (although it is improbable) that the proper case management effected for Laws Junior would result in more taxing and interesting activities during the day and thereby allow him to sleep better and in a manner which was less disturbed. This was a suggestion made, although no expert or other evidence was adduced to prove it or its possibility. It is also possible to fix alarms, and effect alterations to the house (e.g. an attached office and en-suite bathroom), which would allow Laws Junior to undertake some activities (e.g. television, X-Box and other computer games) that are without additional risk. Even if he were then to wake during the night, he could engage in activities without leaving his immediate environs and the alarm system, of which evidence has been given (or something similar), would alert the carer (or a family member) if Laws Junior were to venture beyond his immediate environs. 334 On the evidence before the Court, a live-in would not have undisturbed time in which to sleep. The probability is that state of affairs would continue. However there is a possibility, as earlier stated, that proper case management would improve the situation. That possibility is not strong. I will award 24-hour care on a live-in basis (i.e. not on the three shift basis claimed) but, I will make due allowance to the probability that the night shift will not be undisturbed. That can be done in one of two ways. First, it can be effected by providing for the higher rates for the night shift; or, secondly, by making allowance for greater relief (and therefore payment) for the carer. The latter course is a less expensive course and I will make an order on that basis. 335 The plaintiffs have tendered a range of material dealing with the cost of carers. Most of the cost issues to which reference has been made, and certainly the schedule of damages, refers to 24-hour care on a shift basis. Further it presupposes different persons working as the carer. On the other hand, the defendants rely upon the material tendered by GWS going to the cost of care, and in particular the cost of 24-hour care. GWS tendered Exhibit 34 which is the schedule of service fees and charges for New South Wales for Australian Home Care Services Pty Ltd. This is not the Home Care Service of New South Wales. The schedule of calculations upon which the defendants relied was technically not in accordance with that schedule. I make no criticism but it seems that the schedule sets out under the heading "rate per hour" a rate for 24-hour live-in care ranging between $291.42 to $582.85 (depending upon whether it is a weekday, weekend or public holiday). GWS, appropriately in my view, treated these rates as daily rates notwithstanding the terms of the schedule. 336 The particular and peculiar problems suffered by Laws Junior require 24-hour live-in care. To that much I have already alluded. The particular problems associated with anxiety and associated with his amotivation and risk taking require, in my conclusion, a particular knowledge of the idiosyncrasies of Laws Junior. The rates that are set out in Exhibit 34 are significantly lower than the rates upon which Laws Junior relies. The differences, in part, seem to relate to the necessity for long-term as distinct from short-term care. If, as I consider to be the case, the sleep of a live-in 24-hour care worker will be disturbed, a greater degree of relief will be required. I further take into account the probability that there will be no improvement in Laws Junior and the possibility that there could be. I determine that an appropriate level of compensation for the required care can be assessed by using the scale of fees referred to in Exhibit 34 but providing for relief (i.e. an extra two days per week on the weekday rate, ten public holidays and four weeks annual leave) while the live-in carer is still paid. 337 On the above analysis the rate per week (i.e. five week days and two days of the weekend) is $2,331.38. To that must be added two further week days at $582.84 making a weekly cost of $2,914.22. Further allowing ten days of public holidays relief is $5,828.50 per annum and four weeks annual leave (at $2,914.22 per week) results in an annual addition of $5,828.50 plus $11,656.88 or $17,485.38, resulting in a weekly increment of $336.26 and a total weekly cost of $3,250.48. 338 I turn then to deal with the issues relating to economic loss. The submissions of Laws Junior are to the effect that I should use as the measure of economic loss average weekly earnings. GWS (and because they support these submissions, Motokov) submits that the average weekly earnings, being only a statistical figure bears no relationship to the earnings of Laws Junior. Laws Junior essentially enjoyed two sources of income. First, as earlier indicated, he played in a band that was relatively successful. The future success of the band and its potential earnings is not taken into account by me in any award of damage in this case. He also earned money as a "dividend" from the development activities that he and his father undertook. As earlier stated, the evidence discloses that he developed houses which his father and/or mother bought and sold and from which he was paid a figure, seemingly based upon whatever his mother and/or father thought was fair. 339 Mr Laws was a tradesperson carpenter. The minimum rate of pay for a tradesperson carpenter is $673.36 per week under the awards that apply in New South Wales. The average weekly ordinary time earnings for an adult male in New South Wales as at February 2007 was $1,180.60. It is notorious that the minimum wage would not be the earnings of a carpenter, but average weekly earnings also includes chief executive officers of major corporations. Their number is so small that the significance of their earnings does not affect dramatically the level of average weekly earnings. However I am not prepared to estimate the loss of income at $1,180.60. I accept that whatever the source of the income (including capital gains from development) it would be as much or greater than that which could have been earned by Laws Junior as a carpenter and I estimate future earning capacity at current value of $1,000 per week giving a net wage (including Medicare levy) of $764 per week. I use the same figure for both past and future economic loss. Because I am basing the economic loss on wages (either carpenter or average) the benefit of superannuation must be added and the judgment will include that amount. 340 The other matters in the calculation of damage are not particularly contentious. I allow an amount of $100,000 for the alteration to the premises. In my view this is an underestimation given that I have based the calculation of care costs on an assumption that alterations will be made not only to provide for a live-in carer but also to allow for an ensuite toilet facility and computer area in or attached to the bedroom in which Laws Junior sleeps. I have also assumed that the alarm system suggested by GWS will be implemented and I allow $892 for that amount. Given that in order to obviate the far more expensive care requirements associated with shift carers I have assumed a ready available study area or computer area, additional computer costs ought also to be allowed as ought additional hardware and software arrangements so that there can be more than one area in which a computer can be used. However, I do not allow those extra amounts but only that estimated by counsel. 341 The last damages matter to which I will make specific mention before setting out a schedule of the damages as I calculate them is the question of general damages. As can be seen from the history of this accident and the injuries suffered by Laws Junior, the general damages need to be significant and within the range of damages that may be awarded for personal injuries of this kind. The amounts proposed by Laws Junior is within the range that could be awarded. Taking into account all of the aspects of this case and bearing in mind the significance of the amounts otherwise awarded I award for general damages the amount of $320,000. 342 Lastly, before setting out the damages that I would award, I make two further comments. First, whatever the level of damages here awarded it will not compensate in any real sense for the loss of a meaningful life into the future. As earlier stated, even though the plaintiff looks and acts superficially "normal", every aspect of his life is affected prejudicially by the accident that has occurred. Secondly, it would have been preferable, in the assessment of damage, for the Court to have had available (and for the plaintiff to have had available) a case management assessment of the kind suggested by both the defendants and the plaintiff and an attempt at the implementation of it. Such a course may have obviated parts at least of the controversy that has come before the Court. Lack of resources by the plaintiff made that impossible from their perspective, and the denial of liability by the defendants made it improbable from theirs. All the parties and the Court are prejudiced because, in a case such as this, the process of litigation prevents certainty and delays potential treatment. I propose damages in the following categories and for the following amounts: 343 On the above basis and otherwise accepting the regime in the reports of Doctors Jungfer and Buckley and Ms Shepherd I propose to order damages calculated in the following way: (a) General damages $320,000.00 (b) Interest on past general damages $160,000 x 2% x 8.25 years $26,400.00 (c) Past economic loss $764 per week x 430 weeks $328,520.00 (d) Interest on past economic loss $328,520 x 4.75% x 8.25 years $128,738.77 (e) Future economic loss 31 years to age 65 x 1059.2 $809,228.80 (calculated on the basis of Laws Junior being 34 years of age and working to the age of 65) (f) Past superannuation losses based on average past compulsory superannuation levy of 8.5% and gross wage of $1,000 per week over 430 weeks $36,550.00 (g) Interest on past superannuation $34,465 x 4.75% x 8.25 years $14,320.03 (h) Future superannuation losses $1,000 at 9% x 1059.2 $95,328.00 Past gratuitous care 16.9 x 7 x 12 x $22.75 ($32,295.90) (i) (i) 12 hours prosperous assistance per day while hospitalised (16.9 weeks) $1,611,164.10 (ii) from 6 July 1999 to 1 June 2007 (413.1 weeks at average commercial rate of $22.75 per hour 413.1 x 7 x 24 x $22.75 ($1,578,868.20) (j) Interest on past gratuitous care $1,611,164,10 x 4.75% x 8.25 years $631,374.93 Future care requirements (calculated on the basis explained above together with initial case management of 48 hours in the first 6 months at $120 per hour and thereafter 4 hours per month) (i) Case management – initial six months ($5,760) – 4 hours per month x $120 per hour x 51 years (1374.4) postponed by 6 months (0.986) (4 x 12 x $120 / 52 x 1374.4 x 0.986) (k) ($150,109.83) $4,704,762.70 Total case management ($155,869.83) (ii) Gardner/handyman 3 hours per fortnight @ $39.50 per hour = $59.25 per week x 1374.4 ($81,433.20) (iii) Attendant care $3,250.48 x 51 years (1374.4) = $4,467,459.70 Special needs (l) (As per the report of Ms Shepherd and the submission of the plaintiff Laws Junior) $832 + $14,074 + $892 $15,798.00 And Alarm System ($892) (m) Holiday requirements $150,139.00 (n) Accommodation requirements $100,000.00 (o) Computer needs $46,359.00 (p) Past out-of-pocket expenses (as agreed) $3,064.75 Future out-of-pocket expenses (in accordance with the schedule provided by Dr Buckley): Total claim in respect of future out-of-pocket expenses: (i) 6 visits to general practitioner per year (ii) 2 visits to a rehabilitation specialist per annum (iii)2 visits to the neurosurgeon per annum (iv) 1 visit to the ophthalmologist per annum (q) $124,714.00 (v) $50 per month pharmaceutical (vi) 4 psychiatric sessions per annum (vii) 6 physiotherapy sessions per annum ($72,486) (viii) gym and pool membership ($80 per month), $18.46 per week for life (x 1374.4) ($25,371) (ix) occupation therapy 101 hours at $185 per hour + 19 hours travel time $150 ($21,535) (x) future surgery and hearing aid ($5,272) (r) Costs of funds management to be assessed 344 I propose an award of damage for John Rodney Laws in the amount of $9,146,462.05. 345 The date of effect of any award made will be 1 June 2007. 346 As in the case of Thomas John Laws I propose to allow the plaintiff time to elect to obtain damage under tort and time to provide figures and material relating to the cost of funds management and to provide to the Court the agreed out-of-pocket expenses. I request that each of the parties check the arithmetic in relation to the claims in which they are a party and I set the matter down for the making of final orders on a date to be determined. 347 I propose the following orders: A. In 20084/2002, Thomas John Laws (Laws Senior): (i) Judgment for the plaintiff against the first and second defendants in the amount of $272,433.79; (ii) Each of the first and second defendants contribute 50% of the judgment sum; (iii) The first and second defendants pay the costs of the plaintiff of and incidental to these proceedings, as agreed or assessed; and (iv) Pursuant to Rule 36.4(3) of the Uniform Civil Procedure Rules 2005 (NSW), this judgment comes into effect on and from 1 June 2007 and interest pursuant to s.101 of the Civil Procedure Act 2005 (NSW) accrues from that date. B. In 20076/2002, John Rodney Laws (Laws Junior): (i) Judgment for the plaintiff against the first and second defendants in the amount of $9,146,462.05; (ii) Each of the first and second defendants shall contribute 50% of the judgment sum; (iii) The first and second defendants shall pay the costs of the plaintiff of and incidental to these proceedings, as agreed or assessed; (iv) Otherwise, the proceedings, including the cross-claim be dismissed; and (v) Pursuant to Rule 36.4(3) of the Uniform Civil Procedure Rules 2005 (NSW), this judgment comes into effect on 1 June 2007 and interest pursuant to section 101 of the Civil Procedure Act 2005 (NSW) accrues from that date. 348 I make the following orders: (i) Both matters stand over until 9.30am on 14 June 2007; (ii) Leave is given for each plaintiff to inform the Court of the election as to damages in negligence and for that purpose to notify the Associate to Justice Rothman and each other party of the election by close of business 12 June 2007; (iii) Leave is granted to all parties to notify and serve any alleged miscalculation in the reasons for judgment by that date and for any special or different basis for the order for costs; and (iv) The parties are directed to confer and the plaintiffs shall file a formal minute of the orders arising from these reasons for judgment. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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