PARTIES:	DAVID ROY SOUTHWELL

v

TAKASHI TOMOMOTO, BRIDGESTONE AUSTRALIA

TITLE OF COURT:	SUPREME COURT

JURISDICTION:	Civil Jurisdiction

FILE NOS:	No. 73/91

DELIVERED:	Darwin 25 November 1994

HEARING DATES:	28, 29 March 1994

JUDGMENT OF:	Angel J

CATCHWORDS

Damages - personal injuries - Cervical fracture dislocation - pain and suffering and loss of amenities of life $50,000,
$35,000 apportioned for the plaintiff's pre-trial loss - voluntary services $2,790 - loss of a chance to earn in occupation requiring no physical limitations - $2500 lost earning capacity - future medical expenses $1225 - special damages $44490.13 - interest $7000
Johnson v Santa Teresa Housing Association (1992) 83 NTR 14 considered
Beck v Farrelly (1975) 13 SASR 17, considered
Griffiths v Kerkemeyer (1976-77) 139 CLR 161, followed
Nguyen v Nguyen (1990) 169 CLR 245, followed
Van Gervan v Fenton (1992) 175 CLR 327, followed

Poseidon Ltd v Adelaide Petroleum (1994) 68 ALJR 313, considered
Commonwealth v Amman Aviation Pty Ltd (1991) 104 ALR 1 considered
Statutes - interpretation - interaction of legislation Motor Accidents Compensation Act (NT) s6
Law Reform (Miscellaneous Provisions) Act NT s22A Workers Compensation Act NT s52(1A)
Santa Teresa Housing Association Inc v Jamieson, NT Court of Appeal, unreported, 17/12/93, followed

REPRESENTATION:
Counsel:
Plaintiff:	J Reeves
Defendant:	C Walker

Solicitors:
Plaintiff:	Morgan Buckley
Defendants:	Turner & Deane

Judgment category classification:	C Court Computer Code:
Judgment ID Number: ang94020 Number of pages:	18

2

ang94020

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No.	73/91

BETWEEN:

DAVID ROY SOUTHWELL
Plaintiff

CORAM:	ANGEL J

AND:

TAKASHI TOMOMOTO, BRIDGESTONE AUSTRALIA
Defendant

REASONS FOR JUDGMENT

(Delivered 25 November 1994)

This is a claim for damages for personal injuries arising out of an accident that occurred on the Stuart Highway near Mataranka at approximately 5.00pm on 23 November 1989.	The plaintiff is not a resident of the Northern Territory as defined by the Motor Accidents (Compensation) Act.	However, as the vehicle in which the plaintiff was travelling is registered in the Northern Territory, the provisions of the Motor Accidents (Compensation) Act apply by virtue of s6(11)(b)(ii).	Both the plaintiff and the first defendant were employees of the third defendant Bridgestone Australia.
The second defendant, Kymstock, was the registered owner of the vehicle and has been removed from the suit.

The accident occurred on a straight section of the Stuart Highway.	As stated in Mr Tomomoto's statutory declaration, which was tendered as exhibit P5, at the time of the accident, there was general conversation amongst the four passengers of the vehicle and Mr Tomomoto took his eyes off the road to look at Mr Southwell.	At this point, Mr Tomomoto lost control of the vehicle, the vehicle left the road, rolled and landed on its roof.		The accident was caused by the negligence of Mr Tomomoto.

The plaintiff suffered serious spinal injuries in the accident, including a cervical fracture dislocation and cuts and abrasions.	Immediately after the accident, while waiting for the ambulance to arrive, the plaintiff experienced very severe pain through his shoulders and the tops of his arms.
This severe pain continued while the plaintiff was being taken to the Katherine Hospital and no pain killers were administered during the journey.	This pain continued for several hours while he waited for a CAT scan to be taken.

The plaintiff was airlifted to Royal Darwin Hospital in the early hours of the following morning.	Mr Southwell was then treated with postural nursing and skeletal traction for six weeks.	The skeletal traction necessitated the insertion of a steel frame (tongs) into the bones of his skull whilst under general anaesthetic.	After about one week, the tongs had slipped and the plaintiff experienced severe pain in the

skull region.	The tongs were reinserted into the plaintiff's skull.	The plaintiff required strong pain relief during this period.		After Mr Southwell had been in traction for six weeks, X-rays were taken and Mr Southwell was then immobilised in a soft collar.	He returned to Adelaide on 12 January 1990.

On returning to Adelaide, the plaintiff sought the advice of Dr Roger Oakeshott, an orthopaedic surgeon, and further X- rays were taken.	These recognised an unstable spinal injury. The injury required the plaintiff to be immediately admitted to the Spinal Injuries Unit at the Royal Adelaide Hospital for ongoing management of the problem.	After being admitted on 19 January 1990, he was again placed in spinal traction, on this occasion without a general anaesthetic.	This required a third set of tongs to be placed into his skull.		After a reasonable restoration of the normal alignment of his spine had been achieved through the traction, a wiring and spinal fusion procedure was performed in theatre.		Following surgery, Mr Southwell was protected in a neck brace for a six week period and following that was referred to a physiotherapist.	From the third week of February 1990 until June or July of 1990, the plaintiff undertook an intensive period of physiotherapy. The treatment involved three hourly sessions three times a week.	The object of these sessions was to improve the flexion and extension of the plaintiff's neck as well as muscle tone generally.	He returned to work in early April on a part-time basis, and resumed full-time duties at the end of April.

Under s5(1)(b) of the Motor Accidents (Compensation) Act, persons who are not residents of the Territory retain their full common law rights in relation to economic loss while their common law rights in relation to non-economic loss are limited to the amount prescribed for the purposes of s17 of the Act.	Non economic loss is defined in s5(2) to mean (a) pain and suffering; (b) loss of amenities of life; (c) loss of expectation of life, or (d) disfigurement.	The prescribed amount is defined in s17(3) of the Act to mean 208 times average weekly earnings at the time payment is made.
Consequently the plaintiff has an action in negligence at common law by virtue of the Motor Accidents (Compensation) Act, and for the damages he sustained as a result of the accident.	Damages awarded for pain and suffering and loss of amenities of life are subject to a statutory cap.

During the trial, leave was granted to the first and third defendants to amend their respective defences as follows:

"In the alternative the first defendant says that should it be held that the third defendant is vicariously liable to the plaintiff for any action or omission of the first defendant giving rise to a claim for damages by the plaintiff against the first defendant such claim is barred by statute in particular s52(1A) Work Health Act."

I have found that the first defendant, Mr Tomomoto, was negligent in his control of the motor vehicle.	As the accident occurred during the course of Mr Tomomoto's

employment, Bridgestone Australia, the third defendant, is vicariously liable for the commission of the tort.

The Motor Accidents (Compensation) Act, s6, provides for the Territory Insurance Office to indemnify a person liable to pay damages in respect of injury to a person as a result of an accident involving a Territory motor vehicle, of which the person liable was the owner or in respect of which that person was in control at the time of the accident, provided that person was not already indemnified.

Counsel for the plaintiff submitted that if the third defendant is not liable to indemnify the first defendant, then the first defendant is indemnified under the provisions of the Motor Accidents (Compensation) Act.	Section 22A of the Law Reform (Miscellaneous Provisions Act) is as follows:

"22A.	RIGHTS IN CASES OF VICARIOUS LIABILITY

Notwithstanding any other law in force in the Territory, or the provisions, express or implied, of a contract or agreement, where an employee commits a tort for which his employer is vicariously liable -

the employee shall not be liable to indemnify the employer in relation to the vicarious liability incurred by the employer; and

unless the employee is otherwise entitled to indemnity in relation to his liability, the employer shall be liable to indemnify the employee in relation to the liability incurred by the employee,

arising from the commission of the tort.
Where an employer is proceeded against for the tort of his employee, and the employee is entitled in

pursuance of a policy of insurance or contract of indemnity to be indemnified in relation to a liability that he may incur in relation to the tort, the employer shall be subrogated to the rights of the employee under the policy or contract in relation to the liability incurred by the employer, arising from the commission of the tort.

Where a person commits serious and wilful, or gross, misconduct in the course of his employment and the misconduct constitutes a tort, subsection (1) shall not apply in relation to the tort."	[emphasis mine]

Counsel for the plaintiff referred me to the Northern Territory Court of Appeal decision of Santa Teresa Housing Association Inc v Jamieson (unreported 17/12/93).	In that case, Martin CJ considered that the use of the phrase "notwithstanding any other law in force in the Territory" in s22A of the Law Reform Act evinced an intention that the Motor Accidents (Compensation) Act should not be read so as to create a barrier to the fullest operation of the Law Reform Act.	The Court held that the employee in that case was not entitled to the statutory indemnity from the employer because he was otherwise entitled to an indemnity under the Motor Accidents (Compensation) Act.

Counsel for the plaintiff submitted that, as a consequence of the employer not being liable to indemnify the employee, s52 of the Work Health Act did not apply and the first defendant was entitled to be indemnified under the Motor Accidents (Compensation) Act provisions.

Section 52 of the Work Health Act provides:

"52. ABOLITION OF CERTAIN RIGHTS TO BRING ACTION

Subject to section 189, no action for damages in favour of a worker or a dependant of a worker shall lie against -

the employer of the worker;

any person who, at the relevant time, was a worker employed by the same employer as the deceased or injured worker; or

the Nominal Insurer, in respect of -
an injury to the worker; or

the death of the worker -

as a result of; or

materially contributed to by, an injury.

(1A) In subsection (1) "injury" does not include an injury inflicted or caused by, or as the result of an action or omission of, a worker employed by the same employer as the deceased or injured worker in circumstances in which the employer of the worker would not be liable under section 22A of the Law Reform (Miscellaneous Provisions) Act to indemnify the first- mentioned worker in relation to any liability incurred by him or her in relation to the injury.

The purpose of subsection (1) is to ensure that, so far as the legislative power of the Legislative Assembly permits, no action for damages at common law shall lie in the Territory or otherwise in circumstances described in that subsection and nothing in this Act shall be construed as derogating from that purpose.

Except as provided by this Act, no action for compensation or a benefit of any kind by a worker or a dependant of a worker shall lie in the Territory against the employer of the worker in respect of -

an injury to the worker; or

the death of the worker -

as a result of; or

materially contributed to by, an injury."

Section 52(1) bars a worker from bringing an action against the employer in respect of injury.	However, there is an exception in s52(1A) where the injury occurred in circumstances in which the employer was not liable under s22A of the Law Reform Act to indemnify the employee.	This is the case here.	The plaintiff's common law action is not barred as alleged.	Section 189 of the Work Health Act does not apply.

The plaintiff's claim for damages can be divided into the following heads:
. pain and suffering

. loss of amenities

. claim for the future loss of a chance

. claim for voluntary services

. claim for future medical expenses

. interest

. special damages (agreed) between the parties.

Pain and Suffering and Loss of Amenities

Damages awarded under this head for pain and suffering are to take account of the considerable pain experienced by the plaintiff immediately after the accident, the pain and discomfort resulting from the traction treatment and the slow, painful recovery he made up until April 1990 when he returned

to work.	Mr Southwell's recovery was complete by November 1990.	Dr Potter, an orthopaedic surgeon, discharged the plaintiff from further care in April 1990.

As indicated by Dr Potter in his report (exhibit P3), the plaintiff has difficulty in maintaining the extremes of neck flexion or extension for prolonged periods of time and finds that he is only able to read or work over a desk for 15 minutes before he needs to change his position.	This has contributed to the plaintiff experiencing difficulties with his sexual relations with his wife, with sleeping, driving for extended periods, reversing a motor vehicle and going to the movies, and with his ability to interact with his nephews and nieces.

Mr Southwell's injuries have impeded his involvement in sports and recreational pursuits.	Prior to the accident, Mr Southwell regularly participated in rally car driving competitions; undertook biannual ski trips, each of a week's duration, and played football, although he had not played football in the couple of months leading up to the operation. Mr Southwell has resumed his sailing activities but experiences pain and discomfort when he is in a position where he has to have his neck looking up at the sails or fixed in one position for a long period of time.		Mr Southwell has successfully returned to scuba diving.	However, Mr Southwell has problems when swimming and scuba diving in that he cannot

breathe if he turns his head to the left.	Mr Southwell's scars on the back of his neck as a result of the fusion operation, and on his hip at the site of the bone graft, have been a point of comment by the scuba divers.	Mr Southwell also has scars on the sides of his temple where the skeletal tongs were inserted.	There are four tender red spots which will become more evident as Mr Southwell's hairline continues to recede.

The plaintiff has suffered a major spinal injury and has a significant permanent residual deformity as a result of this injury.	Dr Potter has assessed the impairment as representing a ten to fifteen per cent loss of cervical spine function.
Although the symptoms at present are minimal, he is predisposed to develop cervical spondylosis and disc degeneration particularly in those discs adjacent to his fused segment, as a result of his injury.	He may require intermittent periods of treatment for this with rest, analgesics, anti-inflammatory drugs and physiotherapy.	An example of the medical problems that Mr Southwell may encounter in the future occurred in June 1993 when physiotherapy treatment was required for his neck.

In summary, Mr Southwell has suffered a major spinal injury.	He experienced considerable pain and suffering subsequent to the accident.	His sporting and academic pursuits have been affected and his specialist considers that

he has a significant permanent residual deformity.	I have reviewed the damages awarded for pain and suffering and loss of amenities in a number of recent cases where the plaintiff has suffered injuries to the cervical spine, including the decision of Mildren J in Johnson v Santa Teresa Housing Association (1992) 83 NTR 14 which was referred to me by counsel for the plaintiff.	In light of the assistance provided by these authorities and the injuries suffered by the plaintiff, I would allow $50,000 damages for pain and suffering and loss of amenities.	Given that the plaintiff has made a remarkable recovery and that he incurred a great deal of pain and suffering in the first few months after the accident, I apportion $35,000 for the plaintiff's pre-trial loss.

Voluntary Services

Under this head, the plaintiff claims the value of the voluntary assistance provided by the plaintiff's mother upon his return to Adelaide from Darwin.	The nature of the plaintiff's injuries necessitated him residing with his parents from 12 January until 19 January when he was admitted to the Spinal Injuries Unit at the Royal Adelaide Hospital and from 31 January to 23 February 1990.		During these periods, Mrs Southwell cooked for the plaintiff, washed his clothes and bed linen, assisted him in the shower by helping him dry his legs and washing his hair, assisted the plaintiff in getting into his brace and into bed.	In evidence in chief, Mrs

Southwell estimated that she was caring for the plaintiff six hours per day.	I accept Mrs Southwell's evidence as a reasonable estimation of the voluntary assistance she provided to her son.

Counsel for the plaintiff referred me to the South Australian Full Court decision in Beck v Farrelly (1975) 13 SASR 17.	The Court in that case considered the question of whether the plaintiff had a right to recover damages in respect of voluntary services rendered to him by his two brothers and his sister after a motor vehicle accident.	The Full Court followed Cunningham v Harrison [1973] 1 QB 942 and Donnelly v Joyce (1974) 1 QB 454 in deciding that the plaintiff is entitled to be remunerated for the value of gratuitous services rendered to him by relatives and friends after and in consequence of the accident.

Beck v Farrelly was considered by the High Court in Griffiths v Kerkemeyer (1976-77) 139 CLR 161, which decided that the plaintiff may be awarded the cost of household and attendant services even though these have been provided gratuitously by friends or relatives.		Griffiths v Kerkemeyer was approved in Nguyen v Nguyen (1990) 169 CLR 245 and Van Gervan v Fenton (1992) 175 CLR 327.	In Nguyen's case, Dawson, Toohey and McHugh JJ explained Griffiths v Kerkemeyer, at pp261-262:

"In reaching its conclusion, the court followed the decision of the Court of Appeal in Donnelly v Joyce, and viewed the damages in question as damages for one component of the plaintiff's loss occasioned by his physical disability.	The disability gave rise to the need for nursing and other care.		The need was met by the services gratuitously provided.	The value or cost of those services was, in the circumstances, an appropriate means of quantifying that aspect of the plaintiff's loss which was represented by the need.	As the  need represented the loss, the value of the services required to fulfil that need served as a means of assessing the loss.	The fact that there were persons, prompted by motives of concern for the plaintiff, who were prepared to provide the services gratuitously was, it was held, not something which should diminish the damages to the advantage of the defendant.	It was only right in the circumstances that the plaintiff should benefit rather than the wrongdoer whose negligence was the cause of the plaintiff's loss."

In Van Gervan v Fenton, supra, it was held that damages awarded under the principle of Griffiths v Kerkemeyer were to be assessed by reference to the commercial cost of having the voluntary assistance provided.	Counsel for the defendant submitted that $15 per hour was a reasonable approximation of the commercial cost of the attendant care provided by the plaintiff's mother.	This is the amount that the plaintiff paid for housekeeping when he returned to his home on
23 February 1990.	Accordingly, damages awarded under this head for the two relevant periods in January and February 1990 will be $2,790.00.		Counsel for the plaintiff did not seek interest on damages awarded under this head.

Loss of a Chance

The plaintiff suffered a major spinal injury, had a significant residual deformity as a result and is predisposed to the development of cervical spondylosis in the future.	The plaintiff's submission under this head was on two bases.
Firstly, it was argued that the plaintiff should receive an award for the loss of a chance to use his qualifications as a motor mechanic should he lose his position with Bridgestone and consequently be thrown onto the labour market.	Secondly, the plaintiff submitted that he would generally be at a distinct disadvantage in competing with completely fit people on the open job market.

In examination-in-chief the plaintiff gave evidence that he considered that his injuries and ongoing symptoms would reduce his chances of gaining employment as a mechanic or as an automotive technician and have some effect on his work performance because he cannot hold his head in one position for an extended period of time, or work comfortably around and under vehicles (t33-34).	I accept the plaintiff's evidence.

Mr Reeves referred me to Luntz's Assessment of Damages for Personal Injury and Death (third edition).	According to Luntz, an award for loss of chance will be made even if the loss of chance is less than probable.	However, the chance must be substantial to be taken into account and cannot be fanciful or speculative.

In contrast, the respondent submitted that there was no evidence upon which an award for this head could be made.	The respondent contended that it was mere speculation that the plaintiff would not be able to compete successfully with fully fit people on the open job market as no evidence had been put forward as to how the plaintiff's injuries and continuing symptoms would impact on his performance in the labour market.

In Poseidon Ltd v Adelaide Petroleum (1994) 68 ALJR 313 and Commonwealth v Amman Aviation Pty Ltd (1991) 104 ALR 1, the High Court confirmed that in assessing damages for personal injury, the court can only take account of future or hypothetical events in terms of the degree of probability of these events occurring.	The court will consider the chance of an event occurring when formulating a view about the appropriate quantum of damages unless the chance is so low as to be speculative.	In the Adelaide Petroleum case, the court cited the following remarks of Deane, Gaudron and McHugh JJ in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 with approval:

"If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring
... But unless the chance is so low as to be regarded as speculative - say less than one per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing damages.	Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring.	Thus, the court assesses the degree of probability that an event would have occurred,

or might occur, and adjusts its award of damages to reflect the degree of probability."

I agree that the plaintiff's residual deformity would adversely affect his work performance were he forced to find a job as a mechanic or as an automotive technician.	Similarly, because of the plaintiff's spinal injury, if he did lose his job at Bridgestone Australia, he may be at a disadvantage in competing with fully fit applicants on the open job market.
Although the plaintiff is currently in a managerial position as national services manager and is enrolled in a degree course in marketing at the University of South Australia, I find that there is a more than speculative chance that the plaintiff may have to rely on his mechanical qualifications in seeking employment.

Making an award under this head is a difficult task, for one must take into account factors such as whether and when the plaintiff may be made redundant or be retrenched from Bridgestone and the impact of his injuries on any subsequent search for employment.	As submitted by counsel for the plaintiff, I consider that the basis of the assessment for loss of chance should be the difference in salary between the plaintiff's present position where he is remunerated at the rate of $49,000 per annum and that of a mechanic for which the current salary is $40,000 per annum.	The award I make under this head is $25,000.

Future Medical Expenses

In his report, Dr Potter indicated that the plaintiff's injuries may require him to seek further periods of treatment with analgesics, anti-inflammatory drugs or physiotherapy.	I agree with counsel for the plaintiff that some assessment should accordingly be made and I will allow a modest sum under this head.	Using the 3% tables at page 545 of Luntz's Assessment of Damages, supra, and assuming that the treatment will be required until death, the appropriate award for future medical expenses is $1,225.

Special Damages

As shown in exhibit P7, these have been agreed at

$44,490.13 and comprise:

Income (net)	$9,292.86	
Medical Expenses	$28,716.57	
Rehabilitation	$5,000.10	
Household Help	$290.00	
Physiotherapy	$80.60	
Executive Chair	$1,110.00	
	$44,490.13	

Interest

The plaintiff sought interest on the non-economic component of the award (pain and suffering and loss of amenities).

In contrast to Shaw v The Commonwealth (Northern Territory Court of Appeal, delivered 24 November 1993), the court has a statutory power by virtue of s84 of the Supreme Court Act to award damages for pre-trial losses.

Following Gogic v MBP (SA) Pty Ltd (1991) 171 CLR 657, interest on pre-trial non-economic loss will be calculated at the rate of 4 per cent per annum.	Accordingly, interest on non-economic losses incurred prior to trial $35,000 for a period of five years amounts to $7,000.

There will be judgment for the plaintiff in the sum of

$130,505.13 against the first and third defendants.	I will hear the parties as to costs.