NEGLIGENCE – Motor vehicle accident – Driving negligently on public highway – Motor car towing horse float driven by Defendant on wrong side of highway – Collision with motor bike ridden by Plaintiff on correct side of highway – No contributory negligence – Personal injuries – Claim for loss of future earning capacity a speculative claim not giving rise to compensation on the claimed basis.
“181 I accept that Mr Pethybridge, between about the time of his redundancy and the time of his accident, had conversations with his partner, Belinda Harvey and his son Jamie Pethybridge, about taking up work in the future in the mining industry. I accept this as evidence of the intentions of Mr Pethybridge to pursue this type of employment pursuant to ss.64(3) and 66A Evidence Act 2008 which provide:
64(3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by –
(a) that person; or
(b) a person who saw, heard or otherwise perceived the representation being made.
66A The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.
182 Mr Pethybridge called Mr Timothy Sale (“Mr Sale”) to give evidence. Mr Sale was a fitter and turner but was younger than Mr Pethybridge, being a 41 year old man. He was well built and displayed no obvious health problems. He too worked at Empire Rubber in Bendigo but left without being offered a redundancy package. He then worked for a number of mining enterprises in remote locations in Western Australia. While working for a company called BGC he earned a gross salary of $125,000.
183 The Plaintiff also called Mr Sasha Cust (“Mr Cust”) to give evidence. Mr Cust was a 37 year old man in good health. He had two children from a second marriage aged three and a half and seven months. From December 2009 he was made the operations manager of UME based in Bendigo. He earned $120,000 per annum together with fringe benefits which included a car. In a management role, he was involved in administrative work requiring paperwork skills which the Plaintiff did not possess. He said that when he started in the mining industry the normal rate for a fitter and turner in the industry varied somewhat between $38 per hour to between $55 to $60 per hour.
184 Mr Pethybridge also said that he would have continued to work as long as he was fit to do so. He was a skilled worker and he had worked consistently throughout his life. From this it is possible to draw the inference that he could obtain work in his chosen trade if it was available locally.”