Clancy v Nominal Defendant (Queensland) [1994] QSC 197

se 94/t?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.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DERRINGTON J No 53 of 1988 TRACY LLOYD CLANCY and NOMINAL DEFENDANT (QUEENSLAND) BRISBANE .. DATE 05/08/94 JUDGMENT 1 REVISED COPiES ISSUED State Reporting Bureau Dated? 1 ;r- I Defendant -- 1 of 28 -- 050894 D.1 Turn 1 LMS (Derrington J) HIS HONOUR: The action is dismissed with costs to be taxed, including reserved costs, if any. I publish my reasons formally. JUDGMENT 2 10 20 30 40 50 60 -- 2 of 28 -- IN THE SUPREME COURT OF QUEENSLAND Townsville No. 53 of 1988 [Clancy v. The Nominal Defendant] BETWEEN: TRACY LLOYD CLANCY Plaintiff AND: NOMINAL DEFENDANT (QUEENSLAND) Defendant JUDGMENT - DERRINGTON ]. DELIVERED: 05/08/1994 CA TCHWQRDS: Motor vehicle accident - unidentified vehicle - whether any such vehicle existed. COUNSEL: SOLICITORS: Negligence - contributory negligence - driver proceeding straight across intersection - approaching vehicle turning across line of travel and stopping then moving as plaintiff was close - no contributory negligence. Damages - severe internal injuries - injury to pelvis and leg 35% p.p.d. - hepatitis C infection from treatment - vulnerability to infection from splenectomy - severe scarring, lethargy and some incontinence - loss of wide sporting activities - man 27 years - general damages $70,000. Mr R.R. Douglas Q.C. with him Mr P.C. Lafferty on behalf of the Plaintiff Mr D.H. Tait on behalf of the Defendant Dempseys on behalf of the Plaintiff Hawthorn Cuppaidge Badgery on behalf of the Defendant HEARING DATES: 26 and 27 April 1994 -- 3 of 28 -- IN THE SUPREME COURT OF QUEENSLAND Townsville BETWEEN: TRACY LLOYD CLANCY AND: NOMINAL DEFENDANT (QUEENSLAND) JUDGMENT - DERRINGTON I. Delivered the 5th day of August 1994 No. 53 of 1988 Plaintiff Defendant At about 9:30 p.m. on 20 October 1986 the plaintiff was injured in a traffic accident when he was riding his motorcycle outbound along Ingham Road, Townsville at its junction with Duckworth Street which joined it on his left. He says that it was his intention to drive straight ahead along Ingham Road to his home, which lay in that direction. He claims that he was struck by a large fourwheel-drive station-wagon, light or white in colour, with stripes, possibly blue, on its side, a bull-bar, possibly black, at its front, and chrome wheels with large tyres. It had approached the junction, he says, from the opposite direction along Ingham Street and was turning to its right across his path of travel. He said that as he approached the junction the other vehicle stopped as though to yield him right of way, as he was entitled, but that it then moved forward and struck him on his right side just as he was about to pass in front of it. He says that he was thrown in the air and landed flat on his back on a kerb. -- 4 of 28 -- 2 It is generally agreed that he and his motor-cycle came to rest close to one another on or near the kerb of Duckworth Street a relatively short distance from its corner with Ingham Road as though he had diverged about forty-five degrees from his original line of travel. His present description places him a little further down Duckworth Street, but the difference appears to be irrelevant. He claims that the other driver and the other vehicle cannot be identified. The Nominal Defendant puts in issue that there was any such vehicle, but in this, apart from the important evidence of an independent eyewitness, it must rely upon indirect evidence and testing the plaintiff's case. In that respect there are many issues validly raised, and the claim should be scrutinised carefully because of the opportunity for fraud and the difficulty in detecting it in these circumstances: Blum v. Motor Vehicle Insurance Trust (1968) W.A.R. 121; Westlake v. Motor Vehicle Insurance Trust (1960) W.A.R. 83. As the result of the accident, however it happened, the plaintiff seems to have struck the kerb and possibly came to rest straddling it. Though not rendered unconscious, he was seriously injured but according to his expert his injuries were sustained by being hit by a vehicle rather than by his striking the kerb and/or the ground or by being struck by the falling motor-cycle. He claims that while he was lying there he heard what he thought was the offending vehicle stop somewhere behind him and two doors slammed; that two persons approached and one of them said that he had not seen the plaintiff; that after his own vehement rejection of this, he was asked whether he was all right and whether he could get up, and, not realising the extent of his injuries, he said, "Oh, I think so"; but that when he tried to get up, he was in too much pain and nothing -- 5 of 28 -- 3 would work. Although he says he could still hear the others talking, he does not say that he then made any request of them for help despite their former expression of interest in his condition. This is where his account begins to show possible signs of serious deficiency on its own face. There are several matters on which his evidence is at odds with other witnesses. He was a poor, if facile, witness and his general character was not high. These matters do not necessarily mean that he was not telling the truth, but much of what he said seemed to have the air of a fabrication woven into some facts that he could since have learned from other sources. There are strong reasons to disbelieve at least this part of his account for Mr Lyman, an impressive eyewitness who had an unobstructed view, albeit at a distance of five to six hundred meters, said not only that there was no other vehicle involved in the collision, but also that no other vehicle stopped at the scene before he saw a passing taxi driver, Mr Gergenti, who was not a witness to the collision turn around and return to aid the plaintiff. Mr Lyman accurately described Mr Gergenti's slightly convoluted course. Mr Gergenti did not notice any other vehicle when he arrived, though it may be expected that he would have done so had it been there. Two Air Force officers summoned by Mr Lyman arrived soon after, and they did not find any such vehicle or persons as the plaintiff suggests. Indeed their vehicle may have been the one referred to by other witnesses called by the plaintiff when they spoke of the presence of a fourwheel-drive vehicle at the scene later. For example, Mr Gergenti noticed such a vehicle after he had taken some action to summon help, and this would accord with the presence at that time of the Air Force vehicle. -- 6 of 28 -- 4 It might be suggested that despite having stopped and engaging in conversations the men referred to by the plaintiff departed before these other witnesses arrived, but in that case Mr Lyman should have seen them go. Moreover, this does not fit in with the plaintiff's reliance on the evidence of Ms Melissa Brown who saw at the scene not only a fourwheel-drive vehicle but also some men generally answering the somewhat distinctive description of those referred to by the plaintiff in his evidence. Men of the same description were also spoken to by the investigating policeman, Mr Hutchings, but they apparently denied knowledge of the matter. Mr Gergenti makes no mention of noticing any other people at the scene when he arrived and in the circumstances of his deliberately returning to the scene to give help, he probably would have noticed the presence of other people who might have been connected with the accident. The strongest conclusion is that these men came to the scene at a later time, for by the time Ms Brown arrived, Mr Gergenti was there. So too were the Air Force officers, for by then the plaintiff was covered with a blanket, which they had provided. All of this is totally consistent with Mr Lyman's evidence. The rejection of the plaintiff's account of this episode does not destroy the rest of his general story, for it is an independent feature. He may be embellishing what is a truthful case, or he may be rationalising in respect of peripheral matters, for he was seriously injured. Unfortunately however his conduct in this respect does not help his general credibility; and it demonstrates his tendency and capacity to take some facts supported by independent witnesses and weave them into a story. In argument, his counsel wisely avoided reference to this part of his case, though the -- 7 of 28 -- l.• 5 witnesses were led as corroborating the plaintiff's account in a number of details, as indeed they seemed to do until their evidence was properly scrutinised. There is one piece of evidence as to the events that followed next which might fairly be said to have some force in supporting the plaintiff's general case. To the ambulance bearer who came to the scene and who was administering aid to him, he said that he had been hit by a fourwheel-drive vehicle. The surrounding conversation is not known. It is argued that in his pain and shock he would not have had the capacity to make up a false account, and this proposition had some attraction which should be given appropriate weight. It is subject to the argument that ex hypothesi he was lucid enough to discuss the matter; and it is far from impossible that, given his character, he may have been able to invent a lie in order to advantage himself. It cannot be assumed that he was unaware of the possible benefit by way of recovery of damages in making such a statement. Alternatively he may have had some simpler motive for making a false statement if his fall had been due to his own fault; and he may have wished to distract attention from the fact that he may have been riding a stolen motor-cycle. The statement that he made at the time was very simple, consisting only of two facts, that he had been struck by another vehicle, and that it was a fourwheel- drive vehicle. Whether either of these simple facts is true depends still on his evidence though of course he has now gone into greater detail. It is known that there was at least one such vehicle innocently present at the scene after the event. Nevertheless, some weight must be given to his having made such a statement in those circumstances, though the countervailing features must be taken into account also. -- 8 of 28 -- 6 There are other complexities and some adverse factors which quite properly arouse the Nominal Defendant's suspicions. The first is that the plaintiff's motor- cycle disappeared after the accident. This has relevance in the use that the plaintiff now makes of its damaged state. It was left at the scene by the police so that the plaintiff's family could remove it, and although it could not be ridden for more than a short distance, according to the plaintiff's expert, it is said to have been stolen. But when the police enquired into the matter from his brothers, they gave conflicting reports, each claiming that it was with the other but it is doubtful whether anyone reported it stolen. Some two months after the accident as the result of an advertisement inserted by the plaintiff's wife, she received an anonymous telephone call directing her to an isolated place where she found what is said to be the relevant motor-cycle. It was in pieces. It was subsequently submitted to expert testing which showed damage and paint markings suggestive of an impact with something which corresponded with some of the colours of the unidentified vehicle as the plaintiff now describes them. There is one other feature about it that has been adumbrated which should be noted in this context. It was unregistered and its engine number had been removed so that there is a serious possibility that it was stolen. The plaintiff says that he had bought it from another man a couple of years before and that he was riding it on this occasion because his other motor-cycle had broken down. If it had been stolen, this may account for its disappearance after his accident so that the police would not detect its status, a disappearance which could well be innocent for present purposes. Of course there are other serious possibilities arising from all this. One is that whatever the reason for its disappearance, the damage now found was -- 9 of 28 -- 7 fabricated by some sympathetic person to support the plaintiff's claim. There is no evidence of this, but the account by the investigating police officer, Mr Hutchings, of the damage on the machine that he saw, general though it is, does not comfortably correspond with the damage found by the plaintiff's expert on the machine which he examined. Mr Hutchings said that there did not seem to be a great deal of damage to it. Serious caution should be exercised before a finding of fabrication of evidence were found, but the plaintiff had the opportunity for it through the agency of one or both of his brothers, who were active on his part in the affair and whose actions are somewhat suspicious. This and other suspicious features of this case and its inconsistency with inferences with the independent evidence must at least admit of allowance for the possibility of fabrication. To this. should be added another small but strange thing. The plaintiff's notice to the Nominal Defendant dated 5 January 1987 stated that the motor-cycle that he was riding was a 250cc type whereas that examined by the expert was a 500cc type. The notice was signed by the plaintiff at a time when he was probably still under some medication for less than three months had passed since the accident though he was not as obfuscated as he first made out in evidence. In any case it had been prepared by his then solicitor from information which might be expected to have been provided by the plaintiff or someone who knew. The information is detailed and the solicitor might be expected to have satisfied himself of the plaintiff's competence to give it. The plaintiff's signature on the form is firm and has some flourish. -- 10 of 28 -- 8 Interestingly, the advertisement inserted by his wife in the local newspaper on 15th December 1986 also described the missing motor-cycle as a 250 XL model. However, the description also mentioned that it was of Honda brand and a grey trail bike, and these correspond with what is now produced. The notice to the Nominal Defendant also contained other information that does not sit happily with the plaintiff's present account. He described the other vehicle as a "1984 Toyota 4WD" Registration No. NRT-826 owned and driven by Chris Crofts; and his description of the accident was as follows: "Claimant was driving along Duckworth Street near intersection of lngham Road, involved in a collision with a vehicle he believes to have been driven by Chris Crofts. He believes the vehicle to be a 1984 Toyota 4WD Reg No. NRT-826. The vehicle failed toremain (sic) at the scene of the indicent (sic). The claimant believes the other vehicle was on the wrong side of the road and hit him head on." His explanation for his reference to Chris .Crofts and his vehicle, which is now abandoned, was generally unsatisfactory, and his description of the accident is clearly in conflict with his case even as to the street on which he was riding before the accident. The course of the other vehicle and the suggestion of a head-on collision are totally in conflict with his evidence. Yet the detail of the description suggests more than a mere aberration. His suggestion that the other vehicle failed to remain at the scene hardly accommodates his present claim that it did so for a while, though this may be merely a matter of communication. There is another small matter that is worrying. His account in his evidence as to the parts of the respective vehicles that first same into collision differs from what he said in answers to interrogatories. On what is a fairly fine point, this may well be merely a matter of memory, but it has some significance in that his expert describes the damage to the motor-cycle without suggesting significant damage to -- 11 of 28 -- 9 the handle bars, which is the place where the plaintiff said in . his answers to interrogatories that the vehicle was first struck. In one way there is an absence of inconsistency, for where he formerly said that the handle bars were struck by the bull bar about a quarter of the way across its front, he now says that the edge of the bull bar struck at about the region of the motor-cycle's seat. Geographically there is relative consistency between the two accounts. However his respective answers sti!l had some differences. This might usually have little significance, but in the context of many inconsistencies in the plaintiff's case, it could draw some colour from other matters. All of this is somewhat more significant because although he had given some account of the accident to the police, he refused later to discuss it in detail with them; and he refused to tell them of the whereabouts of the motor-cycle, which was then with his expert. His explanation that he was cross at the delay in the police investigation was most unconvincing, particularly as their investigation may have aided his case, if he were genuine. One possible explanation, paradoxically in his favour on this issue, is that he may have known that the machine was a stolen one, so that he did not want the police to find it nor to give details of it to them. He did not offer this explanation, perhaps for the same reason, but the suspicious nature of his conduct is consistent with the disappearance of the bike, its strange reappearance, and the conflicting stories of his brothers as to its whereabouts. The implicit suggestion of the Nominal Defendant is that one of the brothers, who is not of good character, removed and hid it because it was stolen property and perhaps for other reasons; and that when it was -- 12 of 28 -- 10 returned through the medium of the plaintiff's wife in the way she said, the location and nature of its damage had been rearranged. There is no proof of this, but it is necessary to consider alternative possibilities in relation to these very unsatisfactory aspects of the plaintiff's case, particularly where they touch on the validity of his account of the major event which itself is thrown into doubt by other evidence. Each of the matters presently under discussion is a relatively small point, but together they give cause for serious discomfort. Some of these matters give rise to the thought that the bike now referred to by the plaintiff's expert may not even be the bike that he was riding, for there is only his evidence as to that, and any identifying features, such as the expired Victorian number plate could have been switched; and of course the substituted vehicle could be one that had been involved in a genuine accident. But this line was not pursued by the defence and this sub-issue should be determined in the plaintiff's favour. This all has relevance because the plaintiff's experts said that a motor-cycle produced to them for examination, and said by the plaintiff to be the one that he was riding, had damage and foreign paint-marks consistent with its having been struck on the right side by a motor car and not consistent with merely the machine's having slid along the ground as in a simple fall. The plaintiff argues that this is supported by Mr Lyman's evidence of hearing a thud but no sliding sound. As to the latter, it should be observed that the witness was at such a distance where he might be expected to hear only louder sliding sounds; that even if he had been struck as he says, with the force that he claims caused his extensive injuries and damage of such -- 13 of 28 -- 11 severity to the motor-cycle it should be expected that there would have been some sliding as they both quickly came to the ground and were carried on by their own momentum; and that in the event of a simple fall, the extent of sliding might not have been large depending on its circumstances, and in any case it may have been reduced by the obstruction posed by the kerb. These matters make it somewhat difficult to assess the weight to attribute to this feature, but it should fairly be given serious consideration as possible support of the plaintiff's case. It might however be remarked that the features generating difficulty have not been adverted to sufficiently or in some cases at all by his expert who tried to show the presence of another vehicle by reference to the plaintiff's injuries and the damage to his vehicle. To complete the picture, it might be added that the plaintiff was also an unlicensed driver at the time, having lost his licence for traffic offences. This was consistent with his general mildly anti-social behaviour which had seen him in prison on two occasions. His prior offences were not ~erious on the relative scale, but indicated a generally irresponsible attitude which has persisted since his accident in a number of convictions for unlicensed driving, a curious situation considering the extent of his claim of disabilities. He had also been unemployed for a number of months prior to the accident. This may be partly explained by his training for Olympic selection as an amateur boxer. He had been runner-up in the prior Australian titles competition in the light middleweight division. His boxing career of some twenty-eight fights has been raised as some explanation for his present mild intellectual deficit, though it is cl aimed on his behalf that this was consequent upon his injuries suffered in the -- 14 of 28 -- 12 accident. This will be dealt with later. For the moment it is enough to say that this deficit may have affected his capacity to follow consistently a regime of disciplined conduct that would support his claims of disability; and it also may have affected his • capacity to conceal any mendacity, though not his willingness to exercise it. Of course these failures may be totally attributable to his general character. It is difficult to regard him as a completely truthful person and indeed at times he seemed to be clearly untruthful though glib. The difficulty is in knowing whether this extends to his account of the accident, for in respect of that limited part there was nothing significant about his demeanour upon which a decision could be fixed. On the other hand, it could have been rehearsed and his demeanour was not inconsistent with this, having, as it has been remarked, a general flavour of that kind. The Nominal Defendant points to the elaborate detail in the plaintiff's description in his evidence of the other vehicle, though on his own account there must at best have been a fleeting moment of grave emergency when he would have been in a position to see many of these things. This is true, but even a glimpse may later lead to recall of some detail. Then again, part of his account could be honest but rationalised recollection, particularly if, during a search for the unidentified vehicle, he has seen other vehicles which he believed to have provoked some recollection. This is not to say that this explanation is correct, but it is a reasonable hypothesis equally open and consistent with honesty in this part of his account. Somewhat the same answer applies to the argument on his behalf, very attractive at first blush, that there is no reasonable alternative explanation for the accident. It is true that at the time he had taken no liquor and was very fit, though -- 15 of 28 -- 13 there may be a question as to the effect of any blows he may have received during his training session which he had just finished. But when his argument relies on the proposition that he was simply driving along Ingham Road straight ahead through an ordinary junction, its weakness is that it relies completely on his evidence for that basic proposition. The route to his home was straight ahead, but, apart from his evidence, it is speculation to say what he intended and what happened at that place. The same difficulty applies to the implications flowing from the combination of the evidence of Mr Lyman that in relation to the accident he heard only a thump or thud but no scraping noise suggestive of any sliding by the motor-cycle, and the absence of any other evidence indicating that the plaintiff and his bike slid along the roadway, as, it is said, would have occurred had he simply fallen over. If that necessarily followed, it is not easy to understand why it would not also have occurred in the circumstances of the accident as the plaintiff described it and as the respective resting places of his bike and himself would indicate. They came to rest fairly close together at about the raised kerb at the far left-hand corner of the junction according to his alleged direction of travel. Had he been struck as and where he said and had he and his bike veered onwards to this point after they had been struck, it would still be as likely that they would have some forward momentum after they hit the ground as would be the case if he fell off. He was not travelling fast and if the kerb had been the first point of contact for both, it would have prevented or impeded sliding, for it would seem to have had some effect of this kind in fact. But this explanation would apply as well to a fall as to the result of an impact, so the effect of the point is equivocal. -- 16 of 28 -- 14 One feature that does emerge from this is that the plaintiff's extensive injuries could have been sustained by falling, with some momentum, onto the ground and onto or against the kerb on or near which he was lying when he came to rest. There may also have been some impact between his body and the motor-cycle. His expert's attempt to draw conclusions in his favour from the nature and location of his injuries is illogical and unwarranted and contrary to the many judicial warnings against such an exercise in the face of such a complexity of forces and directions. While no doubt the available statistics on the association of injuries of particular kinds with accidents of a particular nature may be useful on suitable occasions, the potential for their abuse in the hands of enthusiastic experts anxious to advance a party's case is obvious, and so they must be approached with commensurate caution, and limited to their proper use. The expert's evidence as to nature of the damage to the motor-cycle and the direction of the force causal of such damage is useful, though the former could have been identified by a competent motor-cycle mechanic and the latter can be deduced by a competent lay-person. It is irrelevant that the damage was, consistently, on the same side as the major injuries on the plaintiff's body for that might as well be expected if both struck the kerb. It is equivocal. However the conclusion that the machine was struck with force on the right is reasonable, and the presence of certain paint supports the view that it was struck by a vehicle; but this still leaves open the question as to whether some or all of the damage was caused by collision with the kerb, and as to whether, in the light of the other evidence, any of this evidence was fabricated after the event while the machine was missing. -- 17 of 28 -- 15 This has already been discussed. It has not been established by any evidence led by the Nominal Defendant, which has been content to rely on the evidence of Mr Lyman as to the accident, the evidence of other witnesses as to peripheral matters, and weaknesses in the plaintiff's own case. The evidence on peripheral matters has largely been effective in negativing a number of features which might otherwise have supported the plaintiff's case, such as the alleged presence of a similar vehicle at the site, stationary, after the accident. But this and weaknesses in his case are still only reactive factors and are not probative that the accident did not happen generally as he says: cf. Henderson v. Public Transport Commission of NSW (1982) 56 A.L.J .R. 1. It might have been possible to have viewed his case with all its weaknesses in a benevolent way and to find that his direct evidence was still enough to establish his proof, though such a result would have been very doubtful. The only direct evidence against his version is that of Mr Lyman, but it is powerful. He seems to have been consistent and his honesty is unquestioned. While care should always be taken as to the accuracy of independent witnesses, no matter how truthful Mr Lyman appeared in all respects to be an intelligent and responsible observer, and his opportunity for observation was excellent in a number of respects. Although he was some distance from the scene, this could in some ways have been an advantage in giving him a full panoramic view. His view was unobstructed and the scene was well lit. Being on uneventful guard-duty with a dog, he had nothing else to distract his attention at the time. He took an interest in and watched the plaintiff's approach to the intersection, and indeed confirmed the plaintiff's evidence that he was not travelling fast. -- 18 of 28 -- 16 That he then averted his gaze so that he did not see the event is one small weakness, but he heard its noise. Again he showed the quality of his observation by making the distinction that he heard a short sharp sound rather than a sliding one. He redirected his attention to the scene at once and looked at the intersection but he saw no vehicle there. Had there been one as the plaintiff suggests, and particularly a white one, there is no reasonable explanation why Mr Lyman should not have seen it. He was, after all, looking to see if he could identify the cause of the noise. The significance of his failure to see any other vehicle is emphasised if the relatively slow speed of the vehicle mentioned in the plaintiff's account and its manoeuvre of turning into Duckworth Street are taken into account, for Mr Lyman could see clearly down that street also. He immediately telephoned those Air Force police who then went to the scene, arriving within a minute or two of Mr Gergenti's arrival. As it has been mentioned, they confirmed his account of the absence at that time of any fourwheel- drive vehicle, save their own. In the meantime Mr Lyman observed, and in evidence correctly recounted, the course of Mr Gergenti's taxi. These matters tended to reinforce the impression of his quality as a witness. If he is right then it is very likely that there is an implied contradiction of the plaintiff's account. The strength of this evidence is very powerful by comparison with that of the plaintiff's case, weakened as it is by the number of suspicious features that have been explained. It is not easy to reject his direct evidence, but the weight of these adverse factors must strongly defeat it. As a result he has not proved his case, and the action must be dismissed. -- 19 of 28 -- 17 Because of the gravity of this result to the plaintiff, it has been desirable to explain the reasoning behind it in greater detail than would ordinarily be the case. Moreover, the complexity of the variety of matters raised in support of his case reasonably demanded some close discussion. Notwithstanding this result, it is necessary to refer to other issues. Had the event been as the plaintiff alleges, there is nothing to support any finding of contributory negligence against him. In such circumstances, which are not unfamiliar, he would reasonably have been entitled to proceed on his because the other vehicle would have appeared to be yielding right of way; and then he would have been trapped by its unexpected advance without affording him time to take avoiding action. It is also necessary to assess his damages, despite the dismissal of his claim. He was born on 13th January 1959, so that at the time of the accident he was twenty-seven and he is now thirty-five years of age. The extent of some of his disabilities and their consequences are further sources of difficulty, for although they are serious enough, they do not justify all his complaints, nor has his conduct been entirely consistent with those complaints. For example, he has ridden a motor- cycle many times, he has engaged in .a boxing bout and has coached football. He completed in a lengthy swim, and it seems that he does some work on his farm. He fi.xed up his other motor-cycle and has worked on some cars. All of these matters are generally inconsistent with the allegations that he is incapable even of performing some housework, and has to be driven to his destination when he needs transport. -- 20 of 28 -- 18 Though he is shrewd, he is not very intelligent, but this does not suggest that he is subnormal. However he does have some mild intellectual deficit. The various sporting activities, in which he has engaged were probably foolish attempts on his part to salve his regrets that he can no longer perform competitively, particularly at his high pre-accident level. His attempts were probably of relatively low quality and it could not seriously be suggested that he could still engage in any of these activities on a competitive basis. But the extent to which he was able to perform at all is significant in its conflict with his complaint of disability, such as to prevent his finding some work. To this must be added the view of his doctors that the degree of the symptoms of which he complains is surprising, taking into account the residual state of the injured parts as observed clinically. His lack of general credibility adds further to the difficulty. His position is not improved by the evidence of his wife. Even if she is truthful, which is difficult to say, she could be the victim of his deceit, for he contributes little to the housework and care of the children though that would seem to be well within his capacity. She does a little remunerative work and in her absence he minds the children. All of this seems to be consistent with the best result for the plaintiff and his wife in their claim for social services; but this is somewhat speculative and should not be relied on. it is sufficient to say that the whole evidence was unconvincing in trying· to establish his disability for light or medium work. -- 21 of 28 -- 19 There was an issue at the trial as to whether his intellectual deficit is derived from relevant traumatic causes, but any suggested deficit is small at worst and has little practical consequence. It is still necessary to resolve the point. Although he suffered no serious head injury in the accident and was not rendered unconscious, there are theories advanced that he may have suffered some brain damage from shock or similar causes during a period of about one month when he was in intensive care. An attempt was made to reinforce this by suggestions that he was delirious and incoherent, and by his amnesia for this period. While it is possible for brain damage to be caused in these circumstances, and for indicative symptoms of the causes to go unnoticed, this is not common and there is nothing in the hospital reports to suggest any indicative symptoms. Moreover, the deep sedation and analgesia provided to him during this period of treatment would certainly explain any present amnesia and his general state of confusion and incoherence at that time. It is far more likely that, if it exists, any brain damage is attributable to the trauma suffered in his boxing career. The evidence for the defence was much more convincing on these points than that led for the plaintiff. In the light of this discussion it is desirable now to review his established injuries and their final state. He sustained polytrauma and on admission to hospital required resuscitation because of gross shock from blood loss. He had an unstable fracture of the pelvis and required a laparotomy which revealed an extensive laceration of the spleen requiring splenectomy, lacerated liver requiring oversewing, and a large retro peritoneal haematoma and bladder contusion. He also had an injury to the right knee with some initial instability. After laparotomy an external fixator -- 22 of 28 -- 20 was applied to the unstable fracture of his pelvis and his right leg was put in traction. While in intensive care for a long time, he developed shock lung, disseminated intravascular coagulation and multiple organ system failure. He had total body support and was in a critical condition for some time. The unstable fracture of his pelvis required traction for three months after which the external fixator was removed. When he was discharged shortly after three months after his admission, there was still non-union of the pelvis. The gradual union which has taken place has involved the right side of the fifth lumbar vertebrae because of the upward displacement of part of the pelvis. This has caused some shortening of his right leg additional to that which he suffered from an earlier injury which had been fully compensated for by a small rise built into his shoe. There is now further compensation by the use of an additional rise but it does not prevent aching of his pelvis which is due to other causes. In addition, there is some laxity of the cruciate ligament of his knee which causes some aching, but this does not substantially enlarge his disability. There is a possibility of a need for operative treatment on his pelvis at a cost of about $20,000, but his pain is held in check by a strong analgesic which he will be able to take indefinitely and it is questionable whether the operation will be indicated, particularly as its prospects of success are limited. From all this he has a loss of forty percent of the function of his right leg of which five percent is attributable to his anterior accident. -- 23 of 28 -- 21 It should be added that there is no significant ar.thritic disturbance to his hips, and Or Watson's evidence on this subject, his knee and other issues should be specifically rejected. The plaintiff was infected with hepatitis C as the result of blood transfusions consequent upon his injuries. As the result of this and the splenectomy and liver injuries, he now complains of some sharp pains in the region of his liver, lasting for seconds at a time, of his sores taking longer to heal, of his being prone to influenza, and of sneezing after swimming. He also complains of tiredness and lethargy and occasional difficulties with sexual function and with urinary and faecal continence. As the result of his splenectomy he will be more susceptible than usual to infections. His vulnerability to hepatitis C is best summed up in the following passage from the report of Or Stephen Fairley (Ex. No. 7) which reads as follows: "With respect to his Hepatitis C, Tracy's outlook is reasonably good and large studies suggest that his life expectancy will probably not be influenced by this illness. Having said this he has a chance of about 50% of having chronic underlying Hepatitis, which would require a liver biopsy for definite diagnosis. His risk of developing cirrhosis over the next 10 years is at least 20% and this would put him at risk of complications of cirrhosis such as bleeding into the gut. This virus also increases the risk of hepatoma (liver cancer) although this hasn't been very well quantified. He will need to undergo regular blood testing and ultra sound scanning of his liver in the future to look for the development of small liver cancer as this is potentially curable if removed early. With respect to him undergoing treatment for this infection there is only about 25% chance of eradicating the virus with Alpha Interferon therapy. It is likely however that more effective therapies or combinations of therapies will become available in the future however. I don't think there is any indication to biopsy his liver or commence treatment at this stage." There is no pressing need for liver biopsy and his liver tests are currently normal. -- 24 of 28 -- 22 He has multiple scars that are very conspicuous and disfiguring, but they do not appear to cause him undue embarrassment and in any case cosmetic surgery would be undesirable. He naturally feels the loss of his success in and enjoyment of sporting activity, and it should be accepted that this has made him despondent and rather disinterested in ordinary activities. His post-accident entry into swimming and boxing competitions should not be regarded as demonstrative of his capacity to pursue them consistently or competitively, but it would suggest that he should be able to apply himself to light labouring or semi-sedentary employment. This is consistent with his undertaking football coaching and some work on his farm and on his motor-cycle and cars. Or Kerlin, who recently examined him on the instructions . ~. of his solicitor, describes him as "a well muscled, strong, young man." In summary, the evidence is not consistent with his claim of inability to perform tasks at home or to finish what he is doing. On the medical evidence, he should be able to return to work of a limited nature, but he will probably need some counselling, support and encouragement. His pre-accident employment record was poor in the sense that, consistently with his prior poor performance over the years, he had not worked for some months prior to his accident, and had spent some periods in gaol prior to that. However he is now in a stable relationship with his defacto wife and is a good father to their child; and he is careful on money matters. Although there has been some further social irresponsibility in his traffic behaviour since his recovery, had he not been injured his care for his family would probably have seen him settle down to more regular unskilled labouring employment as he matured. Conversely, they will -- 25 of 28 -- 23 probably also operate now to provoke his return to work when this litigation is over and he settles down to accept his disabilities. All that having been said, there must still be some reduction in the assessment of his loss realistically reflecting those features of his character that affected his pre-accident history. It is wisely acknowledged in submissions on his behalf that there must be serious discounting for this factor, and that submission is also correct in arguing moderation in that discounting process. But it is still necessary to remember his evidence in respect of his disabilities appeared to be unreliable and exaggerated, so far as they affect his capacity to work. His earning capacity will plainly be reduced in the sense that he probably will not be able to earn at the same rate as if he had not been injured in this way, and he wi 11 be at a marked disadvantage on the open labour market in competition with fully fit workers. There will also be some consequential periods of total unemployment. In addition, there must be some allowance in his favour for the chance that he will not return to work at all because he cannot do so. This must not overlap with the allowance referred to above for the possibility that, if he does go back to work, there will be periods of total unemployment and generally lower wages, for otherwise there would be a doubling of this factor in his favour. The chance that he will not return to work at all should be put as high as thirty percent, though some of this might well be attributable to his general disposition. He should be compensated for some of his loss of earning capacity to date. While he has not shown any great interest in mitigating his loss, and it has been convenient for him to remain at home on a supporting parent's benefit or an invalid pension while his wife works, he has also probably lost much of his motivation -- 26 of 28 -- 24 because of the combination of his pains and disabilities and his resentment at his loss. A calculation of loss of earnings, past and projected, has been produced. While it is useful in a broad sense, the position is too diffuse to allow any mathematical calculation. Some allowance must be made for the contingency that he might have enjoyed larger earnings than those adopted for the exercise, as well as the adverse contingency that he may have been unemployed or have suffered some other non-compensible injury. For pre-trial loss of earning capacity he should be allowed the sum of $100,000.00 upon which there should be interest amounting to $6000.00; and future loss of earning capacity including superannuation should be assessed at $150,000.00. For care and assistance to 30th June 1987, to which it should be limited, the assessment should contain a component of $10,000.00, attracting interest of $1,600.00. For future pharmaceutical expenses, there should be an allowance of $20,260.61 and for such expenses in the past $6,793.03 plus interest of $2,200.00. Other special damages are agreed on at $31,641.62 with interest on $3,638.00 thereof at $1,750.00. The component of the award for pain, suffering and loss of amenities of life should be reasonably substantial. He was a young man and will expect to suffer his pains and disabilities over a long span of years. His probable return to work will entail some added pain or discomfort for him above the present true state. His loss of the enjoyment of his sporting life and the diminution of his ordinary enjoyment of life are more than is normally encountered in these cases, and -- 27 of 28 -- 25 it probably accounts for some shortness of temper and despondency. As against that he will probably have greater enjoyment of his domestic life which would have suffered had he continued to be so avidly devoted to his sports. This loss should be assessed at $70,000.00 and interest should be allowed at 2% on $40,000.00 thereof, amounting to $6,400.00. In summary, his damages are as follows: Pre-trial loss of earning capacity Interest Future loss of earning capacity Care and assistance Interest Future pharmaceutical expenses Past pharmaceutical expenses Interest Pain, suffering and loss of amenities of life Interest Special damages Interest TOTAL: $100,000.00 $ 6,000.00 $150,000.00 $ 10,000.00 $ 1,600.00 $ 20,260.61 $ 6,793.03 $ 2,200.00 $ 70,000.00 $ 6,400.00 $ 31,641.62 $ 1,750.00 $406,645.26 The action is dismissed with costs, including reserved costs, if any, to be taxed. .• -- 28 of 28 --