Dix v Allen [1995] QSC 106

£;'-k/)'?- ~,; ~1~ > - 5 (_ 1 '5: I (Df:J f l.'~ State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) ---------2c:-c..c.. c...._) ~//?/ 7~ SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MACKENZIE J No 139 of 1993 MATTHEW JASON DIX and RICHARD ALLEN BRISBANE .. DATE 15/06/95 JUDGMENT 1 REVISED COPIES ISSUED State Reporting Bureau Date ~ I ~ 5' I Plaintiff Defendant C 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227_5532 -- 1 of 6 -- 150695 bab (MacKenzie J) HIS HONOUR: In this matter, judgrnent is entered for the plaintiff in the sum of $201,200.04 with costs to be taxed. HIS HONOUR: I publish my reasons. JUDGMENT 2 10 20 30 40 50 60 -- 2 of 6 -- IN THE SUPREME COURT OF QUEENSLAND Brisbane [M. J. Dix v. R. Allen] BE1WEEN: MATTHEW JASON DIX RICHARD ALLEN JUDGMENT - MACKENZIE J. Judgment delivered 15 June 1995 Writ No. 139 of 1993 Plaintiff Defendant CATCHWORDS: NEGLIGENCE - motor vehicles - quantum - economic loss - poor work record - surfing enthusiast - alleged use of and dealing in drugs. Counsel: Solicitors: Hearing date: M. Grant Taylor for plaintiff R. Morton for defendant Smith & Stanton for plaintiff Mcinnes Wilson & Jensen for defendant 8 & 9 June 1995 -- 3 of 6 -- IN TIIE SUPREME COURT OF QUEENSLAND Brisbane [M. J. Dix v. R. Allen] BE1WEEN: Writ No. 139 of 1993 MA TTIIEW JASON DIX Plaintiff RICHARD ALLEN Defendant JUDGMENT- MACKENZIE .l Judgment Delivered 15 June 1995 The plaintiff was injured in a two vehicle collision caused by a vehicle turning unexpectedly across his path at an intersection. Liability is admitted and by the end of the trial only certain elements of quantum were seriously in dispute. The plaintiff suffered facial injuries including a fractured jaw and cheek bone, dental injuries and penetration of glass fragments into his right eye. He suffered fractures of the left clavicle and the right patella and a fractured toe. He suffered soft tissue or musculo ligamentous injuries to the neck and back and multiple lacerations, abrasions, bruising and contusions. He underwent surgery on his eye, right knee and jaw and for the period of weeks was in hospital during which time his jaw was wired shut. He suffered a set back when his knee became infected and he became bedridden for a period as a result of that. He continues to suffer residual disability, of which 3 5-40% loss of function of his right leg is the most serious. There was dispute as to whether he suffers from slight brain damage. The weight of evidence is against that view, but even if there were such damage it would not be great in extent. -- 4 of 6 -- 2 The most contentious area in relation to damages is for economic loss. The plaintiff had demonstrated a very limited work history since leaving school. He had had jobs for short periods in supermarkets and had had the offer of an apprenticeship which had been organised through the father of a friend. However, he claimed that he terminated that employment because of difficulties in travelling from Bribie Island to Geebung. This was at odds with evidence from his mother to the effect that he was driven to the railway station at Caboolture every morning when he went to work. I am satisfied that he displayed a high level of absenteeism and that was instrumental in his dismissal. He also gave evidence that he had worked for a short period with a surf board repairer in Sydney and as a labourer on occasions. The evidence establishes that the plaintiff was a surfing enthusiast and I am satisfied that this had a significant influence on his work history. There was no reason to suppose that in the short term his attitude to work would have changed. There was also evidence that he had been convicted subsequently to the accident of offences relating to marijuana although the number of plants involved was in dispute. There was evidence that he told an insurance investigator who sought out his company by subterfuge that he had used marijuana for several years before the accident and that he had made $30,000 selling marijuana. There was no specific denial of the conversation. The plaintiff's memory was defective in respect of most aspects of the conversation with the insurance investigator. Neither counsel submitted that there should be a large award for past economic loss. Mr Morton for the defendant submitted that $5,000 was justifiable. Mr Grant Taylor submitted that the award should be $10,000. Both sums were to include any superannuation element. I am satisfied on the basis of the plaintiff's work record and surfing interests that he was unlikely to have worked with any degree of consistency during the period to trial. I accept that the sum of $5,000 is appropriate in the circumstances for past economic loss. It was agreed that no interest -- 5 of 6 -- 3 would be attracted in the event of either finding as to quantum being made. From 28 May 1991 to 2 February 1993, Social Security paid the plaintiff $11,879.96 and from 10 November 1993 to 4 May 1994, an amount of 37,416.07 was paid. In a case of this kind, future economic loss is compensation for the loss of the chance to utilise the work capacity that the person had before the accident. Mr Grant Taylor submitted that, on the basis of figures provided by accountants as to various scenarios, $125,000 (representing a discount of½ to %to account for contingencies and residual earning capacity) was appropriate. Mr Morton submitted that $70,000 was appropriate. I propose to allow $95,000 inclusive of lost superannuation under this heading. Pain and suffering is assessed at $60,000. I will allow interest on $25,000 of that at 2%, totalling $1,890. Past Griffith v. Kerkemeyer is assessed at $9,300. Interest is $700 on that sum. Special damages are $15,140.04. Interest on travelling expenses, physiotherapy expenses, pharmaceutical expenses and TV hire (at 6% on $5,152.54) is $1,170. I also allow sums of $2,500 and $500 respectively for future surgical procedures and future dental work. I propose to allow future medication in the sum of $10,000. The reason for reducing that sum from the amount submitted by Mr Grant Taylor is that while there is evidence that the plaintiff has a dependence on a prescribed narcotic drug, there is medical evidence that given the will power he should be able to break the habit. However I also take into account the history of the matter and have allowed for ongoing pharmaceutical expenses on the assumption that the plaintiff is unlikely to wean himself entirely and permanently from pain killing drugs. The total sum of damages is $201,200.04. Judgment is entered for the plaintiff for $201,200.04 with costs to be taxed. -- 6 of 6 --