The plaintiff, an experienced mechanic, attended the defendant’s farm to perform maintenance works on a motorbike. He suffered a traumatic brain injury when thrown from the motorbike during a test run.
To his own detriment, the defendant did not participate in the proceedings and consequentially, issues regarding contributory negligence and the plaintiff’s outdated medical evidence went unchallenged.
In issue
- The damages to be awarded for a traumatic brain injury sustained by a mechanic.
- Although a motor vehicle was involved, the claim did not arise from 'the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle' as required by the Motor Accidents Act 1988 (NSW), and the assessment of damages was governed by the Civil Liability Act 2002 (NSW).
The background
On the day of the accident, the plaintiff went to his friend’s (the defendant) farm to attend to maintenance of a motorcycle. The plaintiff serviced the defendant’s motorcycle and rode it to test the work that had been performed. Some adjustments were necessary and were subsequently carried out. The plaintiff then commenced another test run while not wearing a helmet. He was riding along a dirt road when the back wheel of the motorcycle locked and caused the bike to come to a sudden stop. The plaintiff was thrown forward over the handlebars and landed on his head on the road.
It transpired that he had ridden over a metal plough disc that had been lying on the road. As he passed over it, the disc rose up and became stuck between the mudguard and the rear wheel of the motorcycle.
The plaintiff was rendered unconscious and was taken by ambulance to Tamworth Hospital before he was transferred by air ambulance to John Hunter Hospital in Newcastle. The plaintiff remained in a coma for some time and also had post-traumatic amnesia.
In 2018, Dr Harradine, the rehabilitation director at John Hunter Hospital, diagnosed the plaintiff as suffering an extremely severe traumatic brain injury with high probability of ongoing cognitive and behavioural impairments.
In 2019, the plaintiff was assessed by Dr Fearnside, a neurological surgeon, as suffering a 40% whole person impairment.
In April 2022, Dr Rowe, a clinical psychologist, performed a number of neuropsychological tests and concluded that the plaintiff had suffered a Major Neurocognitive Disorder of mild to moderate severity.
In June 2022, the plaintiff’s general practitioner, Dr Shabihkhani, provided evidence that the claimant had capacity to understand legal advice and also had the ability to provide instructions.
The decision
The Court entered judgment for the plaintiff for $1,037,523.83, plus the costs of the proceedings.
The Court found that the plaintiff’s most significant injury was to his head. The fact that the plaintiff was not wearing a helmet was not a matter that the court could take into account. The defendant had not defended the proceedings and, consequently, made no allegation of contributory negligence.
The Court also found that the majority of medical evidence relied upon by the plaintiff was out of date. In particular, the plaintiff’s own evidentiary statement was almost two years old. Fortunately for the plaintiff, there were no counter submissions to any of his evidence.
The plaintiff submitted that his claim for non-economic loss should be assessed at 50% of a most extreme case.
The Court found that the head injury suffered by the plaintiff had completely changed his life. The Court also considered the plaintiff’s orthopedic injuries and whilst probably best described as soft tissue injuries, the Court held that this did not mean they were not serious.
But for the plaintiff’s submission, the Court would have assessed non-economic loss at 55% or 60% of a most extreme case. However, in circumstances where there were no counter submissions from the defendant, the Court did not consider it appropriate to award an amount exceeding that sought by the plaintiff. Accordingly, the plaintiff was awarded non-economic loss at 50% of a most extreme case, being $352,500.00.
Implications
This decision illustrates the Court’s consideration of general damages with respect to head injuries.
In this case, the plaintiff’s head injury was not such that it impacted his capacity. Further, a majority of the evidence he relied upon was outdated. Despite this the Court would have, but for the plaintiff’s own submission, allowed non-economic loss above 50% of a most extreme case.
While the decision supports the current emphasis on the significance of head injuries, it is important to remember that the claim was not defended, with no evidence presented regarding contributory negligence for failure to wear a helmet, and no deduction applicable if such evidence had been accepted.
