The NSW Supreme Court has recently found in favour of a mechanic who sustained a traumatic brain injury as a result of a motorbike incident on a farm.  

Background

On 4 October 2017, the Plaintiff attended a farm owned by the Defendant, whom was a friend of the Plaintiff, in order to undertake maintenance on a motorcycle. The service was completed, and the Plaintiff rode it to test the work that had been performed. Further adjustments were required, which were completed prior to the Plaintiff undertaking another test ride. The Plaintiff was riding along a dirt road, at between twenty (20) and thirty (30) kilometres per hour, when the back wheel of the motorcycle locked, throwing the Plaintiff over the handlebars. The Plaintiff was not wearing a helmet and landed on his head.  

It transpired that the locking of the back wheel of the motorcycle had been caused by the Plaintiff riding over a metal plough disc, which then rose and became lodged between the mudguard and the rear wheel. The plough disc had been deliberately placed by the Defendant’s children for use when cycling.  

The Plaintiff was diagnosed as suffering a severe traumatic brain injury consequent to the incident by the rehabilitation director of John Hunter Hospital, with a high probability of ongoing cognitive and behavioural impairments. Dr Fearnside subsequently opined that the Plaintiff was suffering a 40% whole person impairment. Further evidence was adduced that supported the premise that the Plaintiff had suffered a Major Neurocognitive Disorder of mild to moderate severity, as well as post-traumatic stress disorder and major depression.  

Decision

The Defendant did not participate in the proceeding, despite the court being satisfied that they were aware of same, with default judgment being entered against them on 12 August 2022.  

The Supreme Court awarded damages in the sum of $1,037,523.83. Despite a motor vehicle being involved in the circumstances of the incident, the court opined that 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 such, the assessment of damages was governed by the Civil Liability Act 2002 (NSW).  

The court opined that the Plaintiff’s dominant injury was that injury to his head. A finding of contributory negligence, referrable to the Plaintiff’s failure to wear a helmet, was not open to the court, as the Defendant had not played any part in the proceedings and there was therefore no submissions made with respect to contributory negligence.  

The Plaintiff submitted that non-economic loss should be assessed at 50% of a most extreme case. The court opined that, but for that submission, non-economic loss would have been assessed at 55% or 60%. Given there were no counter-submissions on non-economic loss, the court did not consider it appropriate to award an amount exceeding that which was sought by the Plaintiff. 

Awards for past and future economic loss were made in the sum of $114,400.00 and $78,710.00 respectively, with the court unconvinced that the Plaintiff would have maintained heavy manual employment to the age of 70 as claimed. Consequent awards were made for losses of past and future superannuation benefits.  

A significant award, in the sum of $404,968.14, was made for future domestic and care assistance, with the Plaintiff’s occupational therapist evidence regarding his future needs being unchallenged given the lack of participation in the proceeding by the Defendant. There were also awards made by the court for past and future medical expenses.  

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