Eden v Jamieson & Anor [2023] QSC 240

SUPREME COURT OF QUEENSLAND CITATION: Eden v Jamieson & Anor [2023] QSC 240 PARTIES: CHRISTOPHER ROSS EDEN (plaintiff) v LESLIE RONALD JAMIESON (first defendant) and ALLIANZ AUSTRALIA INSURANCE LIMITED (ABN 15 000 122 850) (second defendant) FILE NO/S: S 1573/2022 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court at Rockhampton DELIVERED ON: 2 November 2023 DELIVERED AT: Rockhampton HEARING DATE: 16, 17 and 23 October 2023 JUDGE: Crow J ORDER: 1. Judgment for the plaintiff against the second defendant in the sum of $987,654.99. CATCHWORDS: TORTS – NEGLIGENCE – OTHER PARTICULAR CLAIMANTS, DEFENDANTS AND CIRCUMSTANCES – ROAD ACCIDENTS – PEDESTRIAN ACCIDENTS – PEDESTRIAN ON OR NEAR ROAD – where the plaintiff was injured in a motor vehicle accident – where the plaintiff was struck by the first defendant at night whilst walking along the Dysart Bypass Road – where there are no artificial street lights – where the first defendant switched his headlights from high beam to low beam when he noticed two cyclists coming towards him on the other side of the road – where the first defendant struck the plaintiff as he swerved to the other side of the road to avoid the plaintiff and subsequently struck one of the two cyclists - where liability and quantum are in issue – whether the first defendant is liable for driving without due care and attention – whether the first defendant is negligent in failing to keep a proper look out – whether the first defendant is negligent in failing to stop, slow down or otherwise avoid the collision. TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – PARTICULAR CASES – INVOLVING -- 1 of 32 -- 2 PEDESTRIANS – whether contributory negligence on part of the plaintiff in failing to keep a proper look-out by walking with his back to the first defendant’s vehicle – whether the plaintiff failed to alert the first defendant of his presence on the road – whether the plaintiff failed to avail himself of either of the nature strips by the road – whether the plaintiff was contributorily negligent in wearing dark clothing – whether the plaintiff is in contravention of s 238 of the Transport Operations (Road Use Management – Road Rules) Regulations 2019 (Qld) (TORUM) – whether the plaintiff failed to take reasonable care for his own safety - whether the onus of establishing contributory negligence is placed on the defendant – whether the defendant has discharged the onus placed upon it to show that the plaintiff is guilty of negligence. DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – INCOME LOSS AND LOSS OF EARNING CAPACITY – GENERALLY – where plaintiff was about to obtain work as an electrician working at the Peak Downs Mine – where the plaintiff would have earned $65 per hour for 12 hour shifts working 4 days on 3 days off – where the plaintiff would have earnings of approximately $2,020 nett per week (npw) – where after the incident the plaintiff was unable to perform work as a mining electrician. Civil Liability Act 2003 (Qld), s 57 Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) Industrial Relations Act 2016, Part 3, Division 9 Transport Operations (Road Use Management – Road Rules) Regulation 2019, s 238, 238(1), s 238(2)(ab) Fox v Percy (2003) 214 CLR 118 McAndrew v AAI Ltd [2013] QSC 290 Powell v Phillips (1972) 3 All ER 864 Smith v Walker [2023] VSCA 61 Sutton v Hunter [2022] QCA 208 Teubner v Humble (1962-1963) 108 CLR 491 COUNSEL: P Cullinane KC for the plaintiff A Arnold for the defendants SOLICITORS: Macrossan & Amiet for the plaintiff Jensen McConaghy for the defendants Liability [1] The plaintiff, Mr Eden, is currently 32 years of age having been born on 21 July 1991. Mr Eden was raised in Dysart as Mr Eden’s father worked at Saraji Mine. As a -- 2 of 32 -- 3 consequence, Mr Eden was very familiar with the accident site, which occurred on the Dysart Bypass Road. [2] Prior to the accident, Mr Eden was residing at 43 Winterer Crescent, Dysart. Very late in the afternoon of 9 April 2020 Mr Eden was invited by his friend, Ryan Kenny, to attend at his fabrication business, at 256 Dysart Bypass Road. Mr Eden, after having consumed two Great Northern heavy beers, commenced a journey intending to walk from 43 Winterer Crescent, Dysart, to Mr Kenny’s property on the Dysart Bypass Road. [3] Exhibit 2 is a map showing the journey which took Mr Eden in a northerly direction along Winterer Crescent before Mr Eden turned right onto a dirt track which connected Winterer Crescent to the Dysart Bypass Road. Mr Eden’s evidence was, and I accept, that when Mr Eden came to the Dysart Bypass Road, the sun was set and it was dark. Mr Eden knew that when it was mowed, the western side (left hand side in the direction he was travelling) was the better side to walk upon as the on the eastern side there was a “big drop off the side of the road for drainage.”1 However, the grass on the nature strip of the left hand side was not mowed, it was “quite tall” and so Mr Eden thought he “would have been safer to be right on the edge” of the northbound lane.2 [4] As Mr Eden was walking up the western edge of the Dysart Bypass road, he observed two bright lights coming towards him from the north. I accept Mr Eden’s evidence that he originally thought the lights were from a motor vehicle and so he stayed on the left-hand side of the road with the intention to pass over to the right hand side of the road after that vehicle passed him. It was only when the lights came closer Mr Eden could determine that the lights were not the headlights of a motor vehicle but were two bike riders with bright headlights. [5] Mr Eden estimated that as he walked along the Bypass Road, he was walking approximately 50 centimetres from the edge of the roadway.3 Mr Eden said of walking 50 centimetres from the edge of the road that Mr Eden “kept that all the way that (he) traversed”; that is Mr Eden kept within a straight line parallel to the edge of 1 T 1-13, line 2. 2 T 1-13, line19. 3 T 1-13 line 4 and T 1-29 line 25-29. -- 3 of 32 -- 4 the roadway.4 Mr Eden said that he did not walk off the left hand side of the roadway as there was grass up to about knee height and he thought that was unadvisable, he was: “a bit weary of the snakes and stuff like that. Also I wasn’t sure about how stable the ground was, if there was holes or anything in the ground. So I felt it would have been safer to be right on the edge there.”5 [6] Exhibit 9 is three photographs taken by Mr Eden after the accident, which show a portion of the accident scene, the white plastic bag Mr Eden said he had in his right hand, and the left hand side verge of Dysart Bypass Road, which shows the grass at perhaps a metre high immediately to the eastern left hand side of the road. [7] Mr Eden was walking along the Dysart Bypass Road approximately 50 centimetres from the left hand edge of the road carrying a white plastic bag which contained the remaining beers. Mr Eden was dressed in light blue denim shorts, blue sneakers and a black t-shirt which Mr Eden described as having a “big white motif” on the back. The t-shirt is Exhibit 8. Despite the road being straight in the area where the accident occurred, and the weather conditions being fine, a Toyota Hilux vehicle being driven by Mr Jamieson struck Mr Eden and knocked him down. The Hilux then swerved right and struck one of the two cyclists. [8] Mr Eden describes then he was in shock and baffled by what had occurred, but he did manage to stand up because he observed that one of the cyclists had suffered a serious de-gloving injury to one of his legs when he went to his aid. Mr Eden described how one of the cyclists told Mr Eden to sit down. Mr Eden described that after he had sat down, he then started to feel a great deal of pain in his left shoulder and in his ribs and was struggling with the puncture of his lung. [9] I accept Mr Eden’s evidence as to the circumstances of the accident. Mr Eden presented as a credible, reliable and consistent witness. [10] Ryan Kenny was not subject to cross examination, was plainly a credible and reliable witness and his evidence may be accepted. Mr Kenny’s evidence was that he observed blue and red lights being operated approximately 200-250 metres from his 4 T 1-29, line 29. 5 T 1-13 line 16-19. -- 4 of 32 -- 5 business and therefore walked to the accident scene to render assistance. Mr Kenny observed the bike rider who had been injured, the police and ambulance officers and both Mr Eden and Mr Jamieson. Mr Kenny saw that Mr Eden was lying on the western side of Dysart Bypass Road, lying in grass just off the verge of the road, which about knee high. Mr Kenny described the grass as “long.”6 [11] Mr Kenny described that the western side of the Dysart Bypass Road as “that side of the road isn’t good for getting off anywhere.”7 Of the eastern side, Mr Kenny was asked to describe the terrain. Mr Kenny described how there was a steep drain that ran from his premises at 256 Dysart Bypass Road right up to Thomas Street. Mr Kenny described the cut as a steep, deep cut with a steep drop off. From Mr Kenny’s description of the verge on the road side, I would accept that the western side of the Dysart Bypass Road was not a safe pedestrian passage due to the length of the grass and the terrain on the eastern side was also not suitable for pedestrian passage due to the position of the table drain off the side of the road which I accept was described by Mr Kenny as a steep drop off. [12] Mr Blom, engineering consultant, was called in Mr Eden’s case. In his report (exhibit 1), figures four and five show the skid marks produced by Mr Jamieson’s Hilux. The skid marks show that Mr Jamieson was driving his Hilux in what one would describe as the usual position for the driving of a motor vehicle on a road. The skid marks veer off to the right indicating an effort by Mr Jamieson to avoid the collision by braking heavily and steering towards the right. [13] Mr Blom’s report also includes a quantification of the low beam headlight distance from which Mr Eden was detectable from, concluding it was approximately 80 metres and that at a speed of 60km/h, the stopping distance would be 55.1 metres. [14] On page 25 of his report, Mr Blom concluded: “…It is likely that Mr Jamieson could have initially detected the presence of something at up to 80 metres, and could likely have identified Mr Eden as a pedestrian at more than 50 metres. At 60km/h with the reaction time of 2 seconds the total reaction and stopping distance would be 55.1 metres, which is significantly shorter than the 6 T 1-62 line 25. 7 T 1-62 line 25-26. -- 5 of 32 -- 6 approximately 80 metre low beam headlight distance Mr Eden was detectable from.”8 [15] On page 18 of Mr Blom’s report, Mr Blom said: “In summary of the above, detection of Mr Eden using low beam may have been possible at distances in the order of 55 to 80 metres. Eighty metres could be considered to be the point at which the presence of a pedestrian in low reflectibility clothing is detectable as something on the roadway, i.e. during the locating object and dwelling on object phases. Based on the author’s observations of the scene and information that suggests low beam headlights provide sufficient light for detection of a pedestrian from a distance between 50 metres and 80 metres it is the author’s opinion that the pedestrian on the side of the Dysart Bypass Road could be detectable beyond the distance of 50 metres and possibly up to 80 metres.” [16] However, Mr Blom also said at page 18, “At a distance of 50 to 80 metres the driver is likely to be able to determine that something is on the roadway, but not able to recognise that it is a pedestrian.” [17] It is to be recalled that on his reconstruction experiment at the accident scene, Mr Blom could easily see the white decal and white bag at a distance of 50 metres. Mr Blom did, however, state in cross-examination that “It’s a fair inference that decal and bag were only obvious – only obvious closer than 50 metres.” [18] Much of Mr Blom’s reasoning appears to be based upon Table one, the detection distance studies which use percentages of reflection as a critical parameter in the determination of visibility distances. The difficulty is that Mr Blom did not know how the percentage reflection was measured and could not relate it to the collision the subject of proceedings. Again, without any reasoning, Mr Blom commented “I’d say a portion of him at the one per cent or the low percentage and the – the white bag and his pant – his shorts were probably higher than one per cent.” 9 [19] In cross-examination, Mr Blom did state that on the assumption a pedestrian was placed on a dark street in dark clothing with one per cent reflectibility, the visibility distance would be 55.1 metres “to pull up on a dark street”. In re-examination, Mr Blom stated that as he knew there was something upon the road, he was able to 8 Page 24-25 of Mr Blom’s report. 9 T 1-79, lines 41-43. -- 6 of 32 -- 7 detect that there was in fact something on the road in the reconstruction experiment with the object being “at least 100 metres away.” [20] At T 1-83, Mr Blom was asked to state what he could observe in the reconstruction experiment when he was 50 metres away. Mr Blom stated that he could see the three different coloured cards placed in front of Mr Eden and that he could see the bag and that he could see “the detail on the back of the shirt.” [21] It seems to me the correct analysis of Mr Blom’s evidence is, as stated in re- examination, that when Mr Blom was 50 metres away from Mr Eden he could clearly see the three coloured cards placed in front of Mr Eden, the white bag being held by Mr Eden and the detail on the back of Mr Eden’s shirt. The critical question of course is not whether one can read the detail on the back the shirt of a pedestrian, but rather what is the distance at which the pedestrian, in this case Mr Eden, was visible? It seems to me it was well beyond 50 metres. [22] That Mr Eden was quite visible is also set out in page 14 of exhibit 12, being the police interview of the non-injured bike rider, Mr Chippendale who described his observations as follows: “We have come around the corner. We were riding bikes. We seen this car coming around the corner and we could see in his headlights this guy walking along with a dark shirt on. The guy in the ute hasn’t seen him until too late because it was dark and he’s braked and swerved and as he’s swerved he missed me and hit Luke.” [23] Mr Chippendale then described the motor vehicle as not travelling at an excessive speed, that the pedestrian was about a metre from the edge and “You could see the walker on the road.” Mr Chippendale was not called as a witness. Insofar as Mr Chippendale’s estimate of the walker, he is about 1 meter from the edge of the road. I do not accept that as an accurate estimation and prefer Mr Eden’s estimate of 50 centimetres. Mr Eden has a good reason to keep well to the left and his evidence was tested by cross-examination. It was logical and consistent. [24] Mr Blom conducted a reconstruction experiment at the site of the accident. The experiment included a series of colour boards placed in front of Mr Eden at the accident site, the purpose of which was not explained. There was further confusion thrown into the analysis by Mr Blom’s analysis on page 18 of his report which -- 7 of 32 -- 8 included in Table 1 a study by research collated by Fisher. On face value, Fisher’s study includes other unknown USA studies which show that a pedestrian two meters in height with 17 per cent reflection, 0.6 of a metre “from NS lane edge” was able to be observed from 115 metres when the vehicle is on low beam. The study then states United Kingdom research, again unidentified, which suggests a pedestrian with “15% reflection” is visible 80 meters away when a vehicle has its headlights on low beam. [25] Assuming USA residents have the same level of visual ability as UK residents then an extra two per cent in reflection will increase the visibility distance from 80 metres to 115 metres. To my mind, therefore, reflection is a critical feature. Mr Blom did not know, and therefore could not say, how reflection was measured, and what, in terms of this accident, the level of reflection of Mr Eden ought to be measured at. [26] Mr Blom comments, on page 18, that a pedestrian with very dark clothes has a detection distance of 50 meters. Mr Eden did not have very dark clothing, as he was approached by the rear by Mr Jamieson, as he had visible light blue denim shorts, a highly visible white decal on the back of his shirt, and a highly visible white plastic bag. Furthermore, as said in the first few sentences of page 18, the lighting in the conditions and the studies referred to by Fisher do not include illumination or glare from approaching vehicles or other lighting. [27] It has not been established what the lighting conditions were from other sources, however, it can be accepted that there were bright LED lights on the two bicycles approaching Mr Eden. There was no attempt to factor in the effect of the illumination from the bicycles in the reconstruction experiment. [28] Mr Blom opined, with no stated reasoning that, from the work of “Bhise” that on low beam a pedestrian was visible at 60 to 91 meters but reduced to 55 meters to take into account the glare effect of the bicycles, again on the assumption that the bicycles were 122 meters away. The assumption that the bicyclists were 122 meters away has not been established, the evidence is that they were so close to the accident site that one bicycle rider was struck by Mr Jamieson’s car. [29] In Fox v Percy (2003) 214 CLR 118 at 166 paragraph [149], Callinan J said: “[149] I return to the facts of this case. Here Mr Tindall was described by counsel for the appellant as an “accident reconstruction -- 8 of 32 -- 9 expert”. That is an ambitious claim. Three things may be said about the evidence in this case and running down cases generally. Rarely in my opinion will such evidence have very much, or any, utility. Usually it will be based upon accounts, often subjective and partisan accounts, of events occurring very rapidly and involving estimates of time, space, speed and distance made by people unused to the making of such estimates. Minor, and even unintended but inevitable discrepancies in relation to any of these are capable of distorting the opinions of the experts who depend on them. It is also open to question whether variables in relation to surfaces, weather, and the tyres, weight and mechanical capacities of the vehicles involved can ever be suitably accounted for so as to provide any sound basis for the expression of an opinion of any value to a court. The engagement of experts in running down cases, other than in exceptional circumstances, is not a practice to be encouraged. [150] The second matter is the reception, apparently without question, of the whole of the contents of the expert reports in this case. Some of the deficiencies to which reference has already been made would require that, either in law, or in the proper exercise of a discretion, much of them should have been rejected. In the long run the undiscriminating tender of inadmissible, unreliable or valueless evidence, the acquiescence in its tender by counsel on the other side, and its reception into evidence, will prolong and increase the costs of trials. It will increase the margin for judicial error as occurred here, and will also lead to uncertainties and difficulties in courts of appeal. No court is bound to accept evidence of no probative value and evidence of slight probative value will rarely provide a foundation for any confident finding of fact, particularly if strong contrary evidence is available.” [30] Notwithstanding the cautions expressed in 2003 with respect to the use of expert evidence in “running down” cases, Mr Blom, engineer, was called in the plaintiff’s case. At conclusion of cross-examination, Mr Blom had arguably contradicted some of what he said in his report. In particular in respect of Figures seven, eight and nine, being photographs showing Mr Eden walking upon the Dysart Bypass Road, comments were made by Mr Blom as the visibility of Mr Eden. Mr Blom could detect an object on the road at a distance of 100m and “was able to see the decal on the back of Mr Eden’s shirt and the white plastic bag he was carrying” at approximately 50 meters. [31] As Mr Arnold pointed out on cross-examination, the silhouette of Mr Eden is shown against an area which was illuminated in the far distance. Mr Blom could not say, and there is no evidence, as to whether that illumination was present on the date of the -- 9 of 32 -- 10 accident. Furthermore, the experiment does not take into account the “bright LED lights on the front of” the bicycles, which were in close proximity to Mr Eden at the time of the accident. (See paragraph 12 of Mr Eden’s statement contained in Exhibit 12). [32] Whilst there can be no doubt that Mr Blom was a non-partisan witness, having agreed with many propositions put to him by Mr Arnold, I have grave difficulty in accepting his opinion, as set out in his report or opinion or opinions as set out in cross- examination which arguably, but not truly, represents his change in opinion. An example is the statement of Mr Blom’s report on page 12 that “At approximately 50 metres, the author was able to see the decal on the back of Mr Eden’s shirt, and the white plastic bag he was carrying.” [33] When asked about his observation, Mr Blom did say that he could recognise what those objects were, that is, the decal and the white plastic bag at 50 metres, however, that does not establish the critical feature – that is when a reasonable observer was able to see a person on the road. The effect of the outside lighting, in particular the lighting on the buildings forward of Mr Eden is shown in figures seven, eight and nine. [34] The effect of the bright LED lighting from the two bicycles is not factored into any of Mr Blom’s observations, nor is any measure of reflectivity of Mr Eden’s clothes. Mr Arnold’s effective cross-examination of Mr Blom revealed many deficiencies in Mr Blom’s opinion. I am unable, therefore, to obtain significant assistance from Mr Blom’s report or oral evidence on the critical issues. [35] Mr Blom’s report was of some assistance in quantifying braking distances and setting out the reasonable reaction times at 2 to 2.5 seconds, and this is helpful in analysis of Mr Jamieson’s evidence. [36] The defendant, Mr Jamieson was 82 years of age at the time of the accident and was hard of hearing. There is no evidence upon Mr Jamieson’s eyesight. Mr Jamieson however was a very experienced motor vehicle driver. Mr Jamieson said that he did not see the pedestrian upon the roadway until he was about 10 metres away from the pedestrian.10 Mr Jamieson’s evidence is that the pedestrian was “nearly in the centre 10 T 2-15, lines 7-8. -- 10 of 32 -- 11 of my vehicle” and that he was driving with his passenger side wheels about one and a half metres from the edge. [37] Pages four and five of Exhibit 12 are large photographs of the accident scene showing the skid marks from Mr Jamieson’s vehicle. Figure four on page eight of Mr Blom’s report are smaller photographs of the accident scene and skid marks but importantly they include an indication of Mr Eden’s approximate location at the time of the accident. In my view, these skid marks do support Mr Eden’s evidence that he was walking at approximately 50 centimetres from the edge of the Dysart Bypass Road. I accept Mr Jamieson’s evidence that it was the passenger side mirror that struck Mr Eden and that protruded approximately 30 centimetres to the side of Mr Jamieson’s vehicle. [38] Mr Jamieson’s version is that after suddenly noticing the pedestrian well out onto the road, he turned his wheel to the right “and broadsided across the road and the skid marks and that were there and I skidded into the two cyclists.”11 Given that it is plain that it was Mr Jamieson’s passenger side mirror that struck Mr Eden, it seems to me that it is highly likely that Mr Eden was struck whilst the vehicle was travelling directly down the roadway and prior to Mr Jamieson swerving to the right and causing his vehicle to “broadside across the road.” [39] This, in my view, is consistent with Mr Eden’s evidence that he was walking on the road approximately 50 centimetres from the edge of the of the carriageway. According to Figure four on page eight of Mr Blom’s report, the skid marks from Mr Jamieson’s vehicle commence just prior to the location of Mr Eden upon the roadway. Mr Arnold for the second defendant points out that given the indication of Mr Eden upon the roadway as shown in Figure four with the skid marks from Mr Jamieson’s vehicle commencing just prior to the approximate location of Mr Eden, and given it is accepted there is approximately a two second reaction time, then in order to produce the skid mark prior to Mr Eden’s approximate location, Mr Jamieson must have observed Mr Eden from at least 35 metres away (2 second reaction time × 16.67 metres per second). 11 T 2-10, lines 19-20. -- 11 of 32 -- 12 [40] This, however, is not of great assistance to the defence as it suggests that Mr Jamieson did not see Mr Eden until he was in the vicinity of 40 metres away from Mr Eden, and yet the detail of the decal on Mr Eden’s shirt was visible at 50 metres, and Mr Eden was visible at approximately 80 metres. [41] As to the circumstances of the accident, I find that: (a) The relevant section of the Dysart Bypass Road was a long, straight section of road; (b) Mr Jamieson had an unobstructed view down the road; (c) The prevailing weather conditions were fine and clear; (d) At the time the accident occurred, at 6:55pm, the sun had completely set and it was dark and there was no artificial lighting upon the Dysart Bypass Road; (e) Mr Eden was walking in a straight line in a northerly direction upon the road at a distance approximately 50 centimetres from the western edge of the roadway; (f) Mr Eden was on his way to meet his friend, Mr Kenny, whose premises is at 256 Dysart Bypass Road; (g) Mr Eden was not affected by alcohol, was wearing blue shoes, a pair of light blue denim shorts, a black t-shirt with a highly visible bright white motif on the rear, and carrying a highly visible plastic bag in his right hand; (h) The western side nature strip of the Dysart Bypass Road, approximately 50 centimetres to Mr Eden’s left was overgrown with grass to a level of approximately one metre such that it was not an appropriate place for a pedestrian to walk; (i) The eastern side nature strip was not an appropriate place for a pedestrian to walk as it contained a table drain with steep sides; (j) Mr Eden had observed two bright lights ahead of him on the Dysart Bypass Road and first believed it was a motor vehicle and at that point made a decision to stay on the lefthand side of the carriageway until the motor vehicle had passed, at which point he intended to walk on the righthand side of the carriageway – that is, into any oncoming traffic; -- 12 of 32 -- 13 (k) Mr Jamieson was driving his Toyota Hilux in a northerly direction upon Dysart Bypass Road and observed two bright lights well up ahead and around the corner on the Dysart Bypass Road, such that he reduced his headlights from high beam to low beam as he continued to drive along the road at approximately 60km/h; (l) Mr Eden, as a pedestrian on the road, was observable at a distance of approximately 80 metres forward of Mr Jamieson’s Toyota Hilux with its lights on low beam, but that Mr Jamieson did not see Mr Eden until he was much closer, that is, until he was within the distance of approximately 35 to 40 metres from Mr Eden, at which point, after a relatively normal reaction time of two seconds, he braked heavily causing the wheels on his vehicle to skid; (m) After the Toyota had commenced to skid for a very short period and was still facing in a northerly direction straight along Dysart Bypass Road, the passenger side mirror of the Toyota Hilux struck Mr Eden with Mr Jamieson then causing his Toyota Hilux to pull to the right into the incoming cyclists and striking one of those cyclists; (n) Although the width of the Dysart Bypass Road has not been measured, as shown on the photograph on page four of Exhibit 11 there was ample room upon the road for a pedestrian, a Toyota Hilux vehicle, and the two cyclists to pass safely without any physical collision. [42] It seems to me that the “big white motif” on Mr Eden’s shirt and the white plastic bag being held by Mr Eden in his right hand made Mr Eden an extremely visible object to a driver of a motor vehicle who was paying attention. Yet Mr Jamieson swears that he did not see Mr Eden until his vehicle was 10 meters from Mr Eden. [43] It seems to me clear, that Mr Jamieson has failed to keep a proper lookout, and also failed to take evasive action and steer clear in a timely manner and that those failures have been a substantial cause of the collision which has injured Mr Eden. If that Mr Jamieson had been keeping a proper lookout he would have observed Mr Eden from a distance of about 80 meters and so he had ample time to stop his vehicle or at least steer clear of Mr Eden. -- 13 of 32 -- 14 [44] Mr Blom’s report and evidence focused only on an analysis of the ability of Mr Jamieson to stop his vehicle to avoid the collision yet that was not the only allegation and negligence pleaded against Mr Jamieson. Mr Eden’s case was much broader and always included an allegation to steer clear of Mr Eden. As there was ample room on the road Mr Jamieson could have easily steered clear of Mr Eden had he kept a proper lookout. [45] The more difficult issue in this case is the proper determination of whether Mr Eden has also been negligent, and if so, what is the proper apportionment for his contributory negligence? [46] The amended defence of the second defendant does not plead contributory negligence against the plaintiff. In paragraph five of the statement of claim, the plaintiff pled the collision was caused by the negligence of the first defendant, Mr Jamieson, with six particulars of negligence, including failing to keep any or any proper lookout, and failing to stop, slow down or otherwise avoid the collision. [47] By its amended defence the second defendant denies paragraph five of the statement of claim and by paragraph 3(b), the second defendant denies that the second defendant was negligent because the collision was caused solely by the plaintiff’s own negligence. The second defendant then sets out ten particulars that it alleges amounted to the plaintiff’s own negligence which was the sole cause of the accident. [48] Whilst paragraph 3(b) of the amended defence was framed as a reason for a denial of liability and not as an allegation for reduction of damages as a result of the plaintiff’s contributory negligence, it seems in fairness that paragraph 3(b) ought to be read as both as a reason for denial of liability and for an allegation of contributory negligence. [49] Particulars (i) and (iv) of paragraph 3(b) allege that the plaintiff Mr Eden was negligent for walking on the road in the dark in contravention of s 238 of the Transport Operations (Road Use Management – Road Rules) Regulations 2019 (Qld) (TORUM) and walking with his back to the first defendant’s vehicle in contravention of s 238 of the TORUM. [50] Section 238 of the Transport Operations (Road Use Management – Road Rules) Regulations 2019 provides: -- 14 of 32 -- 15 238 Pedestrians travelling along a road (except if using a wheeled recreational device or wheeled toy) (1) A pedestrian must not travel along a road if there is a footpath or nature strip adjacent to the road, unless it is impracticable to travel on the footpath or nature strip. (2) A pedestrian travelling along a road— (a) must keep as far to the left or right side of the road as is practicable; and (ab) must, when moving forward, face approaching traffic that is moving in the direction opposite to which the pedestrian is travelling, unless it is impracticable to do so; and (b) must not travel on the road alongside more than 1 other pedestrian or vehicle travelling on the road in the same direction as the pedestrian, unless the pedestrian is overtaking other pedestrians. [51] In terms of s 238(1), at or near the accident scene, there was no footpath and, as described above, the nature strip on both the eastern and western sides was in a state that it was impractical to travel on the nature strip. The allegation that Mr Eden was in breach of s 238 by walking with his back to Mr Jamieson’s vehicle cannot be sustained as s 238(2)(ab) required Mr Eden to face approaching traffic that was moving in the direction opposite to which the pedestrian was travelling. [52] As to the second allegation that Mr Eden was wearing dark clothing which further reduced his visibility, I find that the only dark clothing which Mr Eden was wearing was his black t-shirt which was dark on the front, however, had the highly visible, large, white motif on the back, which did not reduce his visibility but rather increased his visibility. [53] As to the third and ninth allegations of negligence against Mr Eden, it is alleged that Mr Eden failed to alert Mr Jamieson as driver of the Toyota Hilux as to his presence on the roadside. The submission was that Mr Eden was supposed to alert Mr Jamieson as to his presence by operating the torch on his phone. In hindsight that is a logical proposition, however at the time Mr Eden was wearing a large white motif upon his back and the carrying of the white plastic bag was a reasonable means by which Mr Eden alerted Mr Jamieson to his presence on the roadway. -- 15 of 32 -- 16 [54] The fifth allegation of contributory negligence is failing to keep a proper lookout for Mr Jamieson’s vehicle. As noted above, s 238(2)(ab) required Mr Eden to look forward, that is, in the direction of the bike riders, and as Mr Eden was struck from behind, I do not accept that Mr Eden failed to keep a proper lookout. [55] The sixth allegation of contributory negligence is that Mr Eden failed to move to the left of the road and/or off the road when Mr Jamieson’s vehicle approached. I accept Mr Eden’s evidence that he was about 50 centimetres onto the roadway from the left edge, therefore there was little room for Mr Eden to have moved onto the left and off the roadway. Certainly, there was, on the night of 9 April 2020, no reasonable possibility of moving off the roadway into grass which was knee height. [56] There is no evidence as to the width of the road and no evidence as to the width of the Toyota Hilux. The photographs which have been tendered give the impression that the road is a standard size road with ample room for a motor vehicle, a pedestrian and two cyclists to use without any need to move off the road surface. The skid marks from Mr Jamieson’s vehicle show that when Mr Jamieson commenced to brake, his vehicle was well to the western or left side of the north-bound lane. Photographic evidence of the skid marks is shown in Exhibit 12 and in particular photographs four and five of the skid marks support the inference that I draw, that whilst it may have been possible for Mr Eden to move a very short distance, perhaps some centimetres further to his left, it could not, on the balance of probability, be said to have been an action which could have avoided the collision between Mr Jamieson’s vehicle and Mr Eden. [57] Indeed, given the significant injuries suffered by Mr Eden, it appears that Mr Eden was struck by the mirror of Mr Jamieson’s vehicle with some significant force such that a movement slightly to the left would not have avoided the collision. [58] The eighth allegation of contributory negligence is Mr Eden failed to avail himself of either of the nature strips by the road which were safely navigable by pedestrians. With respect to the nature strip on the western or lefthand side of the roadway in Mr Eden’s direction of travel, as stated above, it was unsuitable due to the grass being approximately knee height. As to the nature strip on the righthand or eastern side of the Dysart Bypass Road, it contained a culvert running along its side which was steep- sided, which was not safely navigable by pedestrians. -- 16 of 32 -- 17 [59] The seventh and tenth allegations of contributory negligence were the very broad allegations that Mr Eden failed to take reasonable care for his own safety and that he had performed the other nine allegations of contributory negligence whilst he was a resident of Dysart and familiar with the road, its conditions and usage. As to Mr Eden’s presence on the road, it seems to me precisely because he was familiar with the road and the local conditions that he considered it most unwise to have walked with knee high grass on the lefthand side or western edge of Dysart Bypass Road and further, as Mr Ryan said, the eastern or righthand side was also not in good condition for pedestrians such that, without the benefit of the wisdom of hindsight, walking along the edge of the bitumen carriageway was the safest option available to a pedestrian. [60] In Teubner v Humble, a newspaper photographer who was attempting to cross a road whilst it was raining was struck by a motor vehicle.12 The motor vehicle was driven by a 75-year-old gentleman who had good eyesight yet failed to see the photographer until it was too late. The trial judge considered that the newspaper photographer plaintiff’s actions had been almost suicidal and apportioned liability of 50 percent to the plaintiff and 50 percent to the defendant. In the High Court, Dixon CJ with whom McTiernan and Windeyer agreed, apportioned liability one-third to the plaintiff and two-thirds against the defendant. [61] In describing the plaintiff’s contributory negligence, the primary judge said: “I think that the plaintiff was clearly guilty of contributory negligence such as would have defeated his action at common law. He set out to cross a busy highway in conditions of difficult visibility, from a point where pedestrian traffic would be highly unlikely, and proceeded without any real regard to his own safety. Whatever lights were showing from the defendant's car, if the plaintiff had given even an ordinary glance to his left before stepping on to the down track, he should have seen its approach and waited for it to pass.” [62] In McAndrew v AAI Ltd, McMeekin J said: “[37] The unspoken assumption behind these submissions is that it is inherently unsafe for pedestrians to be on the trafficable surface of the road way. That is not the law. A pedestrian has every right to walk on the road surface if he wishes. In doing so he must exercise ordinary care and prudence but he does not do so at his peril: Alldridge v Mulcahey per McTiernan J. 12 (1962-1963) 108 CLR 491. -- 17 of 32 -- 18 [38] The cases that were cited in support of the propositions advanced by the defendant involved factual situations which cried out for the pedestrians to take care. In each case the injured plaintiff was in a location where, acting reasonably, he had to know that traffic was approaching and that he was at risk. [39] So I am not persuaded that the defendant can show a lack of proper lookout or other default in the plaintiff’s conduct. The defendant’s primary argument was that the plaintiff was intoxicated and I turn now to that point.”13 [footnotes omitted] [63] In McAndrew, the plaintiff had been consuming some beer at his home and then went to two hotels in Emerald between 7:30pm and 2:30am to consume more alcohol with his friends. On the journey home from the Emerald Hotel after 2:30am, Mr McAndrew alighted from a taxi which was situated in the right turning lane of Hospital Road, Emerald and then attempted to cross Hospital Road when he was struck by a motor cyclist travelling at speed. Mr McAndrew was held not to be contributorily negligent. [64] In Powell v Phillips, a pedestrian was struck by a motor vehicle and there was no finding of contributory negligence.14 Mr Cullinane KC points out the factual similarities in the present case, that is in Powell the pavement could not be used as it was covered in snow and slush, so the plaintiff and her colleague were walking on the roadway in or near the gutter and had been stepping onto the roadway when necessary. The plaintiff’s colleague who was walking with the plaintiff neither heard nor saw the car until it struck the plaintiff. It was said to be a dark but starry night and the car was going very fast, 30-40 miles per hour in a 30 mph zone where there was street lighting. The court accepting the plaintiff had, in walking as she did upon the roadway, breached s 74(5) of the Road Traffic Act 1960 and concluded that that breach did not tend to establish nor negative any liability which was in question in the proceedings. The plaintiff in that case was wearing a dark blue coat, navy blue trousers and nor wearing or carrying anything white or light coloured or reflective and was walking on the roadway. [65] Mr Arnold relies upon Smith v Walker in which the Court of Appeal of the Supreme Court of Victoria dismissed an appeal against the decision of Forbes J where liability was apportioned 30 percent to the driver and 70 percent contributory negligence to 13 [2013] QSC 290 at [37]-[39]. 14 (1972) 3 All ER 864. -- 18 of 32 -- 19 the pedestrian.15 The plaintiff, Mr Walker, had attended at the Criterion Hotel in Rushworth in the afternoon and consumed about 16 pots of beer. He was run down by a motor vehicle at approximately 7:30pm yet some three hours after the accident at 10:30pm, his blood alcohol level was 0.228 per cent. [66] The circumstances of the subject motor vehicle accident are quite different to those considered in Smith v Walker. Firstly as to the accident scene, in Smith v Walker there was ample flat, safe nature strips on both sides of the road in question such that there was no need for the very intoxicated plaintiff to be walking upon the roadway at all. It was the defendant who appealed in Smith v Walker arguing there ought to be no finding of negligence at all, and the appeal was dismissed. [67] In Teubner v Humble (supra) Windeyer J said at 503: “I should add that we were referred by counsel to a number of decisions in other cases of road accidents. But decisions on the facts of one case do not really aid the determination of another case. Observations made by judges in the course of deciding issues of fact ought not to be treated as laying down rules of law. Reports should not be ransacked and sentences apt to the facts of one case extracted from their context and treated as propositions of universal application that a pedestrian is always entitled, or that a motorist is always obliged, to act in some particular way.” [68] In a statutory declaration provided by Mr Eden to investigating police officers dated 28 April 2020 (contained in Exhibit 12) Mr Eden described himself as walking along the edge of the bitumen as the grass at the edge of the bitumen was long and overgrown and it was not possible to walk on the grass. Mr Eden’s evidence of walking approximately 50 centimetres from the edge is consistent with that statement. [69] In the same statutory declaration, Mr Eden said that shortly after he noticed the bicycles, he heard the screech of tyres and then was struck from behind by the vehicle.16 That accords with Mr Paul’s statement. That is, Mr Eden heard the tyres screeching and then was struck by the vehicle. I accept Mr Eden’s evidence that he did hear the tyres screeching and then was struck by the vehicle. Mr Eden in cross- examination did agree with the proposition that he did not hear, see, or take any evasive action prior to being struck by the vehicle. It seems to me, given Mr Eden’s 15 [2023] VSCA 61. 16 T 1-14, lines 14-15. -- 19 of 32 -- 20 early version of hearing the tyres screeching, I do accept that Mr Eden did not hear the motor vehicle approaching prior to the tyres screeching and at that point it was too late for him to take any evasive action. Furthermore, given the status of the western and left hand side of the Dysart Bypass Road containing knee high grass, it seems to me there is little Mr Eden could do to avoid the collision. [70] The onus for contributory negligence is placed upon the defendant and it seems to me that the defendant has not discharged the onus placed upon it to show that Mr Eden is guilty of negligence. Quantum [71] Mr Eden left Dysart State High School after completing Year 10 and commenced an apprenticeship as an electrician. Mr Eden was placed at the BMA Saraji Mine and completed that apprenticeship in 2011. After 2011 Mr Eden sought to obtain and did obtain experience working as an electrician in many industrial and domestic electrical areas. In 2018, Mr Eden travelled to London where he worked as a maintenance engineer on high rise buildings performing electrical and other maintenance work. Prior to the accident, Mr Eden had worked for six years in the mining industry and a further eight years performing domestic industrial and commercial electrical work. Mr Eden was a young 28 year old electrician with broad experience, his long term employment prospects were excellent. [72] On 25 March 2020, Mr Eden returned to Australia and self-isolated as a result of the COVID-19 pandemic. Mr Eden’s isolation was completed on 8 April 2020. In the two weeks of Mr Eden’s isolation, he organised and obtained work with CQ Field Maintenance Services as an electrician working at the Peak Downs Mine where he would have earned $65 per hour for 12 hour shifts working 4 days on 3 days off. That would have provided Mr Eden with earnings of approximately $2,020 nett per week (npw). [73] As a result of the accident, Mr Eden was unable to work until 9 August 2020 when he found work with WES Multitrades as an electrician. Mr Eden found he had difficulty working as an electrician with his shoulder injuries. Since then, Mr Eden has worked for Smoke Alarms Mackay Pty Ltd quoting in respect of installation of smoke alarms and occasionally installing smoke alarms. Mr Eden currently is paid $43 per hour. Mr Eden explained that had he not been injured he would have preferred -- 20 of 32 -- 21 working in the coal mining industry. Mr Eden’s father still works at Saraji Mine and has done so for 40 years. [74] Exhibit 1 the bundle of expert reports includes the note of Dr Cook of 9 September 2023. In it, Dr Cook expresses his agreement with Dr Halliday’s assessment of a whole person impairment of 12% and his agreement with Dr Halliday that Mr Eden cannot work as an electrician in the mining industry due to the heavy nature of the work and would further be unsuitable as an electrician in any commercial or domestic electrical work due to having to perform work at above-shoulder height. Dr Cook therefore in accordance with his report considers Mr Eden can only perform very light electrical work such as that he is currently performing. Mr Eden can no longer deploy the vast majority of skills and experience he has gathered in his trade. [75] Mr Eden’s physical injuries have been diagnosed as follows and with the following permanent impairment: (a) Fractured lower body right scapula, united with malunion – 0% impairment (b) Fracture dislocation of the left shoulder including complex tears of the labrum including rotator cuff treated surgically – 5% whole person impairment (c) Fractured ribs on the right side 8 to 11 with punctured lung resulting in pneumothorax on the right side requiring chest drainage – 0% impairment (d) Internal injury, laceration, kidney – 0% impairment (e) Fractured right side transverse process L2 vertebra and musculoligamentous injury – 5% whole person impairment (f) Multiple abrasions and contusions. [76] The parties agree that the dominant injury is the left shoulder injury which is classified as an Item 97. In addition to the above multiple physical injuries, Mr Eden has suffered from psychological injuries. [77] Dr Likely, psychiatrist, examined Mr Eden on 10 January 2023 and diagnosed a post- traumatic stress disorder in partial remission and major depressive episode in full remission and a generalised anxiety disorder in partial remission. Dr Likely quantified a 6% PIRS assessment. Dr Ng assessed Mr Eden on 20 March 2023. Dr Ng -- 21 of 32 -- 22 diagnosed post-traumatic stress disorder with residual symptoms and a major depressive disorder with residual symptoms. Dr Ng quantified a whole person PIRS assessment at 0%. Dr Ng, whilst noting that Mr Eden did suffer from a serious psychiatric injury, says that Mr Eden is now psychologically balanced and presents well. That accords with my assessment of Mr Eden. He presents as a determined, well-adjusted, hardworking young man. I prefer Dr Ng’s opinion over Dr Likely’s opinion as Dr Ng was consistent and well-reasoned in his approach. [78] Mr Eden has been prescribed medicinal cannabis for his psychological conditions by a business called GreenDocs, a 100% telephone attendance practice. Dr Likely in his report supports the use of medicinal cannabis for Mr Eden as prescribed by GreenDocs but his oral evidence considered such a practice, that is the prescription of medical cannabis provided to a patient by telephone to be “unethical”. I accept Dr Ng’s opinion that from a psychiatric perspective, medicinal cannabis is not of benefit to Mr Eden and that he will cease its use eventually. General Damages [79] In terms of the multiple injuries suffered by Mr Eden, the left shoulder injury of itself is an Item 97 moderate shoulder injury, with an ISV range of 6 to 15, it would seem to me that the ISV of the left shoulder of itself would be an ISV in the vicinity of 10. The right shoulder injury is a minor shoulder injury, item 98, with an ISV range of 0 to 5. Mr Eden’s lumbar spinal fracture is properly characterised as an Item 92 moderate lumbar spine injury fracture with an ISV range of 5 to 15, and of itself according to the descriptors in the notes to Item 92, would probably rate as an ISV of 7. [80] The laceration to the right kidney is an Item 60, minor injury to kidneys, with an ISV range of 0 to 10. The fractured right ribs 8 to 11 with pneumothorax is an Item 39.1, complicated or significant fracture or injury that substantially resolves. The ISV range is 5 to 10. The post-traumatic stress disorder and major depressive disorder is diagnosed by Dr Ng as properly quantified as an Item 13 minor mental disorder with an ISV range of 0 to 1. [81] Mr Eden said that his kidney, lungs and ribs have been pretty good and he has had no noticeable issues from that at all, however, he has had ongoing problems with his left shoulder and lower back. Mr Eden described that his lower back would become -- 22 of 32 -- 23 painful and start to throb on the right hand side near his fracture site if he were sitting for long periods of time or driving. As to his left shoulder, Mr Eden described that he could not even install a fan as he nearly dropped one on a tenant, and therefore was limited to extremely light work as an electrician. Mr Eden also described that his left shoulder injury had interfered with his ability to play golf and that by the tenth hole he was suffering pain in his shoulders, such that if he completed the round he would need ice packs on his shoulders that night and suffer shoulder soreness for a couple of days following a round of golf. Plainly, Mr Eden is not in a good state of health for a 32 year old as golf is a sport that many people enjoy through to their advanced years. [82] On behalf of the defence, Mr Arnold submits that the ISV should be quantified at 8 and on behalf of Mr Eden, Mr Cullinane KC submits that the ISV ought to be uplifted by 25% above the top of the range for Item 97 to an ISV of 19. In this case I accept Mr Cullinane’s submission that the top of item 97, being an ISV of 15, is not sufficient to compensate Mr Eden as he has suffered from multiple serious personal injuries and is a relatively young man. It further seems to me that Mr Eden, although he performs light work as an electrician, has and will continue to suffer difficulty performing light work as an electrician. I therefore accept the proper quantification of general damages is to quantify an ISV of 19 and quantify general damages at $38,010. Past Economic Loss [83] Both counsel quantify Mr Eden’s earnings had he not been injured and worked for CQ Field Maintenance Services at $2,020 per week. Mr Cullinane quantifies the difference between $2,020 per week in the 182 weeks from 20 April 2020 until present (a total of $367,640) less actual earnings of $241,512, quantifying past economic loss at $126,128. Mr Arnold for the defendant quantifies the loss from 30 June 2020 to 20 August 2020 (the period that Mr Eden was not working at all) at 7 weeks at $2,020 per week, a sum of $14,140, and a further $516 per week ($2,020 - $1,504) from 20 August 2020 to the date of trial, a further 164.5 weeks, which is a further $84,882, quantifying past economic loss at $99,022. [84] Mr Arnold did not commence the quantification of loss until 30 June 2020, arguing there is no evidence from CQ Field Maintenance Services as to the start date. Whilst that may be true, the evidence from both Mr Saunders and Mr Allen is that there is great demand for electrical workers in the mining industry. In addition, Mr Eden’s -- 23 of 32 -- 24 unchallenged evidence was that he had found the job within his quarantine period of two weeks and that: “I had a friend who is very good mates with the owner of CQ Field and he actually got me a job there. I just had to pass the medical which was on the following Monday I think it was, and yeah, so I didn’t even have to do an interview or anything, I just sent my resume through and he already said yeah we need the workers, it’s all sweet yeah, we’ve got a spot for you at Peak Downs.”17 [85] It seems to me on this basis it is appropriate to accept that Mr Eden would have immediately commenced work with CQ Field Maintenance Services. Further, both quantifications are made on the basis that Mr Eden’s earnings would have continued at $65 per hour, whereas the evidence from Mr Saunders and Mr Allen is that rates have significantly increased. It seems to me therefore that there is in built conservatism in Mr Cullinane’s KC quantification of past economic loss at $126,128 and I quantify past economic loss in that sum. Loss of Economic Capacity [86] The medical reports of Dr Allan Cook detail a great many limitations that Mr Eden faces in carrying out his work as an electrician. In respect to working as a smoke alarm technician, which is extremely light, and with a supportive employer, Dr Cook considers that Mr Eden “Would be able to continue in this employment over the months and years ahead”. It seems to me that it is a fair assessment of Mr Eden’s loss over the next few years or perhaps several years as the difference between what Mr Eden would have earned as an electrician working in the mining industry and what he currently earns. [87] The defendant’s quantification is the difference between earnings at $65 per hour, that is nett earnings at $2,020 per week less current earnings at $1,504 per week, giving a loss of $516 per week. On behalf of the defendant it is submitted that $516 ought to be allowed for 33 years to age 65 (discount factor 855.7) then further discounted by 30% to give a sum of $309,078.84. [88] On behalf of Mr Eden, Mr Cullinane KC submits that the loss ought not be less than $800 npw through to age 70 (multiplier 902) with a discount of only a further 7%, quantifying future economic loss at $671,088. 17 T 1-15, lines 13-18. -- 24 of 32 -- 25 [89] Mr Ashley Allen was called in the plaintiff’s case. Mr Allen is a young mining electrician. In his first year after completing his apprenticeship, he was earning $155,000 gross per annum and in the second year $184,000 gross per annum and the third year $190,000 gross per annum. Mr Allen then left that and performed work as a contractor to Hulk Heavy Diesel for 6 months earning $85 gross per hour, with quite a deal of overtime, so in the six month period he earned $107,431, with his casual rates increasing from $77.50 per hour to $85 per hour. Mr Allen then left that employment to seek a higher rate. Mr Allen now works as a subcontractor in his own business, as many others do, and currently charges $102.50 per hour, plus shift allowance, plus travel, plus expenses and with very minimal business expenses. [90] Mr Saunders, who has a great deal of experience in placing persons in mining employment provides evidence that some independent contractors will earn now in excess of $120 per hour and that the casual rates are commonly $70-$80 per hour. At $80 per hour, and working a very conservative 40 hour per week without overtime, equates to gross earnings of $3,200 per week or $166,400 per annum, less tax of $46,635, quantifies nett earnings at $119,765 per annum which is equivalent to $2,303 per week, which, less Mr Eden’s nett earnings at $1,504 per week quantifies his loss at approximately $800 npw. Mr Saunders’ evidence of the demand for mining electricians and Mr Allen’s experience that overtime is readily available and so quantifying a loss on the basis of working only 40 hours a week is very conservative. [91] It seems to me therefore that it is reasonable to accept, and I do accept, Mr Cullinane’s KC submission that the loss ought not to be quantified at less than $800 npw. Indeed, that may be the loss for the foreseeable future in the next several years, however, there is considerable doubt as to Mr Eden’s employability as an electrician going beyond that period due to the extreme limitations that he suffers due to his injuries. These limitations are set out in detail in Dr Cook’s reports. [92] Although Mr Eden’s father may have worked in the mining industry for 40 years, there is no guarantee that Mr Eden himself would have done this. It seems to me therefore that the defendant’s submission that the loss ought to be allowed only to age 65, that is a further 33 years (multiplier 855.7). As to a discount for contingencies, it seems to me that there ought to be some discount. On behalf of the plaintiff, Mr Cullinane KC urges a 7% discount. Mr Arnold urges a 30% discount. In choosing -- 25 of 32 -- 26 a discount, I take into account the evidence of Mr Allen as a positive vicissitude, that is, should Mr Eden have chosen to, he could have worked as a self-employed electrician and earned much greater sums than those available to permanent electricians employed by mining companies. [93] A negative contingency as explained by Mr Saunders is that when there are mining downturns (and they do occur occasionally), the contractors are those first to lose their employment and the permanents continue to enjoy the same wages. [94] As explained in Sutton v Hunter, statistically a 6.88% discount is appropriate for males in stable long term employment.18 Mr Eden was not however in stable long term employment and so I do not accept Mr Cullinane’s KC submission that the discount for general vicissitudes ought to be 7%. As Luntz points out over 50% of the statistical general vicissitudes discount is due to unemployment and in this case the evidence from Mr Saunders and Mr Allen suggests that the prospect of employment for a mining electrician is very low.19 [95] An issue of greater concern is the long term future viability of Mr Eden working as an electrician at all, given both his left shoulder and lower back injuries. It seems to me balancing these features that the general contingency discount ought to be set at 12.5%, quantifying loss of economic capacity at $598,990 ($800 per week × 855.7 less 12.5%). Loss of Meals [96] At the commencement of the mining industry in the Bowen Basin, mining companies were required to construct towns to accommodate mine workers and their families. That was the experience of Mr Eden’s father. For better or worse, over the last few decades, the system has altered. Whilst the coal mining towns still exist, a large amount of coal mine workers are accommodated at mining accommodation facilities with their families living elsewhere. [97] As the evidence of Mr Saunders points out, there are a number of coal mining accommodation facilities near Moranbah and so coal mine workers are provided with 18 [2022] QCA 208 at [122]. 19 Harold Luntz and Sirko Harder, Assessment of Damages for Personal Injury and Death (Lexis Nexis, 5 th ed, 2021) at [7.4.16]. -- 26 of 32 -- 27 free accommodation, meals and bus transport. According to Mr Saunders who has decades of experience in coal mining, coal mine workers who work on a 7-day on, 7- day off roster “love it… once they get on the seven day roster, they – because they’ve got that seven days off they love it, instead of having Monday to Friday then two days.”20 [98] The parties have agreed that the loss of past subsidised accommodation and meal benefits ought to be valued at $70 per week. Mr Eden’s claim is $70 per week for 182 weeks, a sum of $12,740. On behalf of the defence, that matter is disputed as the defence argues that there was no evidence as to where the plaintiff was going to reside, given that in the past he was a long term resident of Dysart, and further, that documentation from the “putative employer” indicate that meals would not have been supplied, other than during overtime. [99] When asked about living in Mackay and working away from his partner who works in Mackay, Mr Eden’s evidence was that he felt he and his partner would be able to make that arrangement work and that the money was definitely worth it. As I accept the evidence of Mr Eden in this regard, it seems to me that the past loss of subsidised meals ought to be allowed in the sum of $12,740. [100] As to the future loss, the plaintiff claims $70 per week for 38 years (5% discount factor 902) less 7% for contingencies, a sum of $58,720, whereas the defence suggests the allowance ought to be $17,969 being $70 per week for 33 years (discount factor 855.7) less 70% for contingencies. [101] In my view the future loss of meals allowance ought to be quantified on the same basis as loss of economic capacity. That is a loss of $70 per week until age 65 (multiplier 855.7) less 12.5% for contingencies, which is a sum of $52,412. Long Service Leave [102] Employees in the coal mining industry are, as a matter of statute, entitled to long service leave after eight years of qualifying service with benefits accruing in the amount of 13 weeks entitlement after eight years of qualifying service.21 In the present case, the FMS Employee Agreement 2021 (at 43.6) provides the base rate of 20 T 1-58, lines 6-8. 21 Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth). -- 27 of 32 -- 28 pay for long service leave as being $30.47 per hour. On behalf of the plaintiff, a qualification of loss of long service leave is made in the sum of $72,525. [103] This sum is calculated thus: an entitlement of 13 weeks leave every eight years until the age of 70 for Mr Eden means that he would receive 5.625 lots of long service leave (45 years ÷ 8 years). The quantification is then 5.625 lots of long service leave, multiplied by 13 weeks per entitlement is a total of 73.125 week entitlements. The sum is thus quantified at 73.125 weeks multiplied by the base hours of 35 hours per week multiplied by the base rate of $30.47 per hour, to give a sum of $77,984, which on behalf of Mr Eden is discounted by some 7% to $72,525. [104] On behalf of the defence, it is submitted the assessment ought to be nil allowance for future loss of long service leave, however the submissions were not compelling. The defence submission was that there was no evidence before the court that such leave can be converted if desired to cash. As discussed above, long service leave is paid to “workers” in the black coal mining industry as a statutory right which is payable in cash when the statutory conditions are met. Mr Arnold submits that the long service leave will be enjoyed during the plaintiff’s lengthy career, however that ignores medical evidence that the plaintiff has been deprived of an ability to work in the black coal mining industry and so he will have lost that right. [105] Theoretically, the true measure is the difference between the benefits of long service leave accumulated as a black coal miner and the long service leave benefits of a worker outside of the coal industry. In this case, Mr Eden, currently works as a smoke alarm technician. There is no evidence as to what the long service leave entitlements of Mr Eden would be in his current industry as a smoke alarm technician. [106] There are other difficulties with the quantification. The first is that the long service leave becomes an entitlement pursuant to legislation when the statutory conditions are met. That is, after eight years of work in the coal mining industry has been achieved and a lump sum is then available a black coal mine worker who may, or may not, take the lump sum at that point. The taking of the sum may be delayed eight years or more than eight years and in those circumstances, s 57 of the Civil Liability Act 2003 requires the lump sums to be discounted at the prescribed rate of 5%. That suggests there should be some reduction on the $72,525 quantification proffered by Mr Eden. However, against that, there is the quantification of the right to long service -- 28 of 32 -- 29 leave at the then-current rate (see s 39AC(1) of the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth)) as opposed to the rates current when the work is performed that entitles the worker to the long service leave payment. [107] Mr Saunders’ evidence makes it plain, that is what was well known, that wage rates of coal mine workers have significantly increased over many years and continue to do so. Mr Saunders says at the time of Mr Eden’s accident in April 2020, the casual rates were sitting at $65 per hour, whereas in October 2023, they are $75 to $80 per hour. That is an increase of a little over 15% to 23% in a period of 3.5 years. It seems to me that in order for an accurate calculation to be performed, actuarial evidence may be required to try to provide some accurate analysis of each of these matters. In the absence of such detailed evidence, it seems to me, doing the best I can, that a more-than-likely 5% increase in annual wages and therefore the base rate at which the allowance ought to be paid, would, to a very large extent, be offset by the discount required by s 57 of the Civil Liability Act 2003, coupled with a general contingency discount at about 12.5%. For these reasons, it seems to me the loss of long service leave benefits in respect of the coal mining industry is properly valued in the vicinity of $70,000. [108] The true measure of loss, however, is the difference between the lost long service leave as a coal mine worker pursuant to the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) and the long service leave Mr Eden was entitled to in his employment over the next 30 to 40 years. There is no evidence as to the long service leave entitlements of a smoke alarm technician. Part 3, Div 9 of the Industrial Relations Act 2016 (Qld) sets the minimum entitlement for long service leave for all employees who do not have entitlements under the federal system. Pursuant to s 95 of the Industrial Relations Act 2016 (Qld) an employee is entitled to 8.6667 weeks long service leave for the first 10 years of continuous service and after each 5 years thereafter, a further 4.3333 weeks. Thus, under the Industrial Relations Act 2016 for a Queensland Employee, it will take a minimum of 15 years’ continuous service to achieve 13 weeks of long service leave. Accordingly, the long service leave entitlements of black coal mine workers are almost twice as generous as ordinary workers. Again, doing the best I can, it seems to me it is proper to quantify loss of long service leave entitlements at approximately half the calculated amount and allow that head of damage at $35,000. This approach assumes Mr Eden will remain in full -- 29 of 32 -- 30 time employment, in some capacity, until retirement age. In view of the significant damage Mr Eden has as a result of his injury, as detailed in Dr Cook’s reports, it is highly likely, in my view, that Mr Eden will not be able to continue to work in a full time capacity until normal retirement age. Past Special Damages [109] The parties agree that past special damages should be calculated on $30,752.99, but have a disagreement as to whether an additional allowance of $3,370 ought to be made for medicinal cannabis. I accept the defendant’s submission that the allowance ought not to be made for medicinal cannabis as it is a prescription obtained over the telephone, ostensibly for a psychiatric illness which is not a medicine recommended by the College of Psychiatrists. Dr Likely, who was retained by Mr Eden to provide a report, gave evidence that the telephone prescription of such a powerful drug as medicinal cannabis was “unethical” and I accept his evidence in that regard, even though it is in contradiction to the evidence at Page 17 of his report. [110] Exhibit 11 contains a bundle of medical reports and material including correspondence between the orthopaedic surgeons, Drs Salmon and Cutbush, to Mr Eden’s treating practitioners which make no mention of the use of medicinal cannabis. In his reports, Dr Cook, orthopaedic surgeon, suggests that Mr Eden ought to continue to use the simpler analgesic type medications purchased over the counter that are not codeine or opiate-containing, and perhaps some anti-inflammatories. There is certainly no suggestion from a physical injury perspective that the use of medicinal cannabis could be justified. I accept that the use of medicinal cannabis is inappropriate, despite being prescribed by a doctor from GreenDocs over the telephone, and therefore do not allow that as an item of special damages nor as an item of future medical expenses. Future Special Damages and Future Paid Care [111] A claim of $20,000 is made for future paid care with respect to heavier aspects of household and yard maintenance. Although it is conceivable that there may be some aspects of heavier household and yard maintenance which Mr Eden may at some point in the future require to pay, there does not seem to be much evidence supporting the need for such an allowance to be made. Whist I accept Dr Cook’s evidence that Mr Eden would need help with some heavy aspects of household tasks that involve -- 30 of 32 -- 31 work above head height, there is no evidence to support what those tasks are, nor how often they would be performed, nor the appropriate rate for compensating for such a task. In the circumstances, Mr Eden has failed to prove any claim for future paid care and assistance. [112] As to future special damages, there is a claim for $40,000 for future periodic attendances upon a general practitioner, pharmaceuticals, massage therapy and medicinal cannabis. As the special damages have been agreed, I do not have evidence to support any quantification of the likely weekly outlays that Mr Eden may incur due to use of analgesics and/or anti-inflammatories as suggested by Dr Cook. Exhibit 4, a schedule of special damages includes only $180 for pharmaceutical expenses. In those circumstances, it seems to me that Mr Arnold’s submission ought to be accepted, that a modest global assessment of $2,500 ought to be allowed. [113] As no submissions were made as to any agreement upon, nor the proper rates for, loss of past or future superannuation benefits, it seems to me to quantify those heads at the usual rates suggested in Mr Arnold’s submission at 9.5% in respect of past superannuation and 11.25% in respect of future superannuation. [114] In summary, I quantify Mr Eden’s award as follows: General damages - ISV 19 $38,010.00 Past economic loss $126,128.00 Interest on past economic loss $126,128 x 3.96% ÷ 2 x 3.5 years $8,740.00 Loss of superannuation benefits (past) @ 9.5% $11,982.00 Future loss of economic capacity $598,990.00 Loss of superannuation benefits (future) @ 11.25% $67,386.00 Past loss of meals $12,740.00 Interest on past loss of meals $12,740 x 3.96% ÷ 2 x 3.5 years $883.00 Future loss of meals $52,412.00 Loss of long service leave $35,000.00 Past medical expenses $30,752.99 Interest on past medical expenses $30,753 x 3.96% ÷ 2 x 3.5 years $2,131.00 Future special damages $2,500.00 TOTAL $987,654.99 -- 31 of 32 -- 32 [115] I quantify damages in the sum of $987,654.99. -- 32 of 32 --