Gaetano Strano v Mimmo Joseph Carnevale [1986] ACTSC 104 (24 November 1986)

SUPREME COURT OF THE ACT

GAETANO STRANO v. MIMMO JOSEPH CARNEVALE
S.C. No. 1588 of 1983
Negligence - Contributory Negligence - Damages - Evidence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Negligence - collision between two motor vehicles - defendant collides with plaintiff travelling in same lane - no question of principle.

Contributory negligence - plaintiff turns left into major road intending to proceed across and turn right - failure to keep other traffic under observation and to proceed quickly out of danger zone - no question of principle.

Damages - aggravation of pre-existing spinal condition - complaints of pain partially supported by "thermography" - no question of principle.

Evidence - whether agreement of counsel as to facts is binding on tribunal of fact when contrary to evidence.

HEARING

CANBERRA
24:11:1986

ORDER

There be judgment for the plaintiff in the sum of $114,760.00.

The defendant pay the plaintiff's costs.

DECISION

This is an action for damages for personal injuries arising out of a collision between two motor vehicles on Ginninderra Drive, McKellar on 25 July 1983. Some facts are not essentially in dispute. The collision occurred at a point about eighty metres east of the intersection of Ginninderra Drive and William Slim Drive. The intersection is a T shaped intersection and Ginninderra Drive runs through it in an east-west direction. William Slim Drive runs north from the intersection. Traffic in William Slim Drive approaching Ginninderra Drive must turn either right or left. For vehicles turning right, the intersection is controlled by traffic lights. For vehicles turning left there is a merging lane at the commencement of which there is a sign erected on a traffic island to the right of the merging lane which says "Turn left at any time with safety". The merging lane is a wide sweeping curve. Where it meets Ginninderra Drive there is a single white broken line from the eastern most edge of the traffic island to the eastern most point of the merging lane. That broken white line is 67.29 metres in length and its effect is such that vehicles entering Ginninderra Drive from the merging lane may do so quite gradually. In Ginninderra Drive there are three lanes for traffic proceeding eastward, each of which is about four metres wide. There is a substantial median strip about ten metres wide at it widest point separating east bound from west bound traffic. On the southern side of the east bound carriageway of Ginninderra Drive and some little distance to the east of the intersection of Ginninderra Drive with the merging lane from William Slim Drive is a merging lane for vehicles proceeding east in Ginninderra Drive wishing to turn right into an unidentified street which leads to Lake Ginninderra. That turning lane is excised from the median strip at a shallow angle and is divided from the rest of the carriageway in Ginninderra Drive by a broken white line. The western most point of that broken white line is opposite and some few metres east of the eastern most point of the broken white line on the northern side of the carriageway where the merging lane from William Slim Drive meets Ginninderra Drive.

2. The collision occurred when the plaintiff turned left out of William Slim Drive, emerged from the merging lane and proceeded across Ginninderra Drive until his vehicle was wholly within the lane closest to the median strip. The plaintiff intended to move into the additional lane further ahead on his right and to turn right to proceed towards Lake Ginninderra. The defendant's vehicle proceeded through the lights at the intersection in the same lane as that into which the plaintiff had moved and at a speed faster than that of the plaintiff. The defendant endeavoured to avoid a collision by braking and swerving to the left but the front offside of his vehicle collided with the rear of the plaintiff's vehicle. The collision caused the plaintiff's vehicle to roll until it came to rest on the median strip back on its wheels and facing west, that is in the opposite direction to which it had been travelling. The defendant's vehicle came to rest about twenty-five metres east of the point of impact. It was then in the kerbside lane still facing east. The point of impact was approximately at the lane marking separating the middle lane from the lane closest to the median strip some few metres west of the eastern end of the broken white line separating Ginninderra Drive from the merging lane from William Slim Drive and about twenty-five metres west of the western most point of the broken white line separating Ginninderra Drive from the lane for vehicles turning right towards Lake Ginninderra. I have been able to fix these points and measurements by reason of a very helpful aerial photograph of the area in the vicinity of the intersection, a diagram prepared by a police officer, photographs taken on behalf of the defendant and supporting oral evidence. All this evidence leads to an inference that in the absence of other traffic it would be natural and reasonable for a driver in the position of the plaintiff wishing to turn from William Slim Drive into Ginninderra Drive and then to proceed to Lake Ginninderra to cross Ginninderra Drive more or less at a forty-five degree angle.

3. I turn to the more contentious factual material. The plaintiff's evidence was that before he turned out of William Slim Drive into the merging lane, the lights ahead of him for vehicles wishing to turn right were green. At that stage or thereabouts he noticed a solitary vehicle in Ginninderra Drive which he said was about one kilometre to the west proceeding towards the intersection. He also pointed to a position on the aerial photograph (Exhibit 4) indicating where that vehicle was when he observed it. The position indicated by reference to the aerial photograph was about 250 metres from the intersection where it is controlled by the traffic lights. I reject the plaintiff's estimate that the vehicle was one kilometre away when he observed it. I accept the evidence that it was about 250 metres away at that stage. The plaintiff made no further observation of that vehicle. The plaintiff then negotiated the merging lane and entered Ginninderra Drive. He said that he engaged his indicator light to signal his intention to turn right. That was not challenged. He said that he had proceeded about two hundred feet into Ginninderra Drive when there was an impact at the rear of his vehicle. He estimated that at that stage he was still about one kilometre from the righthand turn to Lake Ginninderra. Immediately after the impact he said that a man, whom I find to be the defendant, came and said to him, "Sorry, I didn't see you".

4. The defendant's evidence was that he was proceeding east in Ginninderra Drive in the lane closest to the median strip. He made no observations of the traffic at all until he was going "through the lights". At that stage he began to sneeze. After the first sneeze he noticed a vehicle in the same lane as his, about a hundred yards away. He continued to sneeze, four times in all. He said that the sneezing prevented him taking effective evasive action as far as the vehicle in front of him was concerned. When he was about ten metres from the other vehicle he applied his brakes and swerved to the left but it was, he said, too late for him to avoid a collision. When his vehicle came to rest he extricated himself and went over to the other vehicle which he apparently knew had rolled over and enquired as to the state of the plaintiff.

5. In cross-examination the defendant conceded that he could have told those in the other vehicle that he had not seen the other vehicle. He contended that the speed of the other vehicle was about 40 km per hour but he conceded that he was not a good judge of speed and that when giving evidence in some other proceedings in 1984 he was unable to estimate the speed of the plaintiff's vehicle. The defendant, like the plaintiff, lived in the area and knew the intersection well. His memory as to the events, however, was challenged and he agreed that he was "reconstructing". Although I doubt whether the defendant fully appreciated the significance, in forensic terms, of the word "reconstructing", I am satisfied that this is in essence a factor in his account to this Court of what happened. Subject to what I am about to say in the next paragraph, however, the defendant was a far less impressive witness than the plaintiff and if the issues presented involved a simple decision as to whether one account or the other, where conflicting, should be accepted, I should have little hesitation in accepting the account of the plaintiff.

6. The determination of the factual issues, however, is complicated by the express agreement of counsel for each party that at all relevant times the defendant had a green light facing him in Ginninderra Drive. Evidence as to the various sequences of the lights and the like was given by a technical officer of the Department of Territories. From it I drew the conclusion that if the lights for the defendant were green then the lights facing traffic in William Slim Drive were red. Accordingly, the plaintiff's evidence that he noticed that those lights were green just before he entered the merging lane, is either mistaken or deliberately is false. The plaintiff's credit on damages was strongly in issue. I shall say something about that later. However, I am not prepared to conclude that the plaintiff was giving false evidence when he said that the lights in William Slim Drive were green. I have to conclude, therefore, that he was mistaken. His evidence as to his state of mind when he entered the intersection is clear. He stated that he thought that it was safe to do so having regard to the distance of the other vehicle and to the lights. I accept that evidence as to his state of mind. However, the true situation with regard to the lights was contrary to what he observed. If the lights in Ginninderra Drive had been red there may have been something in his assumption that he could pass safely into Ginninderra Drive without the threat of a collision with a vehicle passing through the intersection. However, if the agreement of counsel is to govern the factual findings, the plaintiff's assumption was wrong, and it was a dangerous, and in my view a highly dangerous, manoeuvre for the plaintiff to proceed into Ginninderra Drive without again checking the position of traffic in Ginninderra Drive to his right and checking in particular the one vehicle that he had observed before entering the turning lane.

7. The question has to be asked, however, whether I as a tribunal of fact am bound by the agreement of counsel which is in the face of the evidence of the plaintiff. In a jury case one would instruct the jury that they as the tribunal of fact are free to accept or reject the evidence of a witness or part of the evidence of a witness. Such direction to a jury applies in civil and criminal cases, although trial by jury does not, as a matter of practice, occur in the Australian Capital Territory. The issue as to the state of the traffic lights is not one which is determined or even referred to in pleadings or in the particulars and there was no application to amend any pleadings or particulars. However, it is, I think, generally within the province of counsel for the parties at the trial of a civil action to limit the issues between the parties, regardless of what one of the parties might say in evidence on a particular question of fact. Not without hesitation, and without reference to any authorities, I rule that I am bound by the agreement between counsel as to the factual issue of the state of the lights.

8. The plaintiff's case is that the collision occurred solely by reason of the negligence of the defendant, and that if there was any failure on the part of the plaintiff to take steps to protect his own safety, such failure did not contribute to the collision. It was submitted on behalf of the plaintiff that the case was one of a "simple rear end collision", and that the liability of the parties would have been no different if the plaintiff's vehicle had simply broken down and had been stationary at the point of impact for a substantial period of time prior to impact. It was submitted that the defendant knew when his vehicle was about one hundred metres from the plaintiff's vehicle that the plaintiff's vehicle was in his path and that the defendant should have taken evasive action immediately by slowing down or moving to the left, and that the supervention of continued sneezing on the part of the defendant did not excuse the defendant's failure at that stage. It was submitted that the plaintiff's vehicle being wholly within the lane closest to the median strip no question arose of a failure by the plaintiff to enter the intersection with safety or failure to change lanes with safety.

9. For the defendant it was submitted that the overwhelming cause of the collision was the plaintiff's positioning his vehicle in the lane in front of the defendant, unaware of the presence of the defendant and travelling at a speed which was so slow as to give rise to danger from vehicles following at the general rate of speed for traffic in Ginninderra Drive which was 80 km. per hour.

10. I make a factual finding on the probabilities that at the time of the collision the plaintiff was travelling at about 40 to 50 km. per hour and at the time of the collision the plaintiff's vehicle had proceeded in the lane closest to the median strip for not more than about twenty to thirty metres. I further find that when the defendant first observed the plaintiff's vehicle he was either a lot closer than 100 metres distant, or that he was travelling significantly faster than 80 km. per hour. It is possible that both propositions are correct, but I do not think that it is necessary to find that both are established on the balance of probabilities. I conclude then on the balance of probabilities that there was a failure on the part of the defendant to keep a proper lookout in that he failed to see the plaintiff enter Ginninderra Drive and failed to see the plaintiff's vehicle whilst it was in the process of crossing Ginninderra Drive. The defendant knew the intersection and the area and, in my view, the standard of care of a reasonable driver demanded some observation of the area in which vehicles might be likely to emerge from the William Slim Drive merging lane and cross Ginninderra Drive before turning right towards Lake Ginninderra. I further find that there was negligence on the part of the defendant in failing to take proper evasive action as soon as he was aware of the plaintiff's vehicle ahead of him in the same lane.

11. I am satisified on the balance of probabilities that the defendant has established that the plaintiff failed to take proper care for his own safety. The collision was not simply a rear end collision between two vehicles travelling in the same lane. It was a collision which occurred whilst the plaintiff had not yet completed the process of negotiating a crossing of Ginninderra Drive in order to turn right, an inherently dangerous process. Although the collision did not occur until the plaintiff was wholly within the lane closest to the median strip, the collision was still within the area which may be regarded as the danger zone where vehicles were likely to cross from one lane to another preparatory to turning right. It was encumbent upon the plaintiff not to enter that zone before he had taken reasonable steps to satisfy himself that it was safe to do so. He failed to take those steps. It was further encumbent upon the plaintiff once he had entered the danger zone to take reasonable steps to get out of it safely and promptly. Again he failed to take such steps. The plaintiff entered Ginninderra Drive and proceeded across it in the mistaken belief that the vehicle which he had observed previously was such a distance and travelling at such a speed that it was safe for the plaintiff to enter and cross without making any further check on the position of the defendant's vehicle. The plaintiff's mistaken sense of security was further contributed to by an erroneous belief that the defendant's vehicle was likely to be brought to a halt by the traffic lights. In my view the lack of care for his own safety on the part of the plaintiff was considerable and the extent to which it contributed to the collision was substantial. The damages recoverable must be reduced to such extent as the Court thinks just and equitable having regard to the plaintiff's share in the responsibility for the damage, and in all the circumstances I think that such damages must be reduced by 25 per cent.

12. I turn now to the question of damages.

13. The plaintiff was born on 7 July 1936. He came to Australia in 1960. He married and has three children. The eldest is a son aged 18 years at the present time. The plaintiff worked as a drainer and concretor for a Canberra based company from 1967 until 19 April 1982 when he was retrenched because of slackness of trade. Mr. Kerry, the managing director of the employing company, gave convincing evidence and there is no doubt that the plaintiff was a fit, competent and industrious worker up until the time of his retrenchment. He was capable of a variety of activities other than concreting and draining. Those activities which I think could be described as semi-skilled were put to use by the plaintiff prior to injury when he bought a block of land at Giralang and had a substantial house erected on it, doing a good deal of the work himself and sub-contracting to the skilled trades such as roof-tiling and electrical work. Apart from some incidents to which I will refer, the plaintiff enjoyed good health up until the time of the subject injury.

14. The plaintiff's credit as a witness on the question of damages and as a truthful person in relation to his complaints to the doctor was strongly in issue. I should say that from my observations of the plaintiff both in chief and under cross-examination, I thought that he was basically a witness of truth, but that he was prone to some exaggeration as to the intensity and duration of his symptoms of pain. These observations were, I think, consistent with the medical evidence and with some films taken of the plaintiff.

15. Immediately after the collision the plaintiff was admitted to the Calvary Hospital where he was taken by ambulance. A laceration to his scalp was sutured. He was complaining of headache and soreness in the middle of the back. However x-rays of the cervical and thoracic spine did not reveal any abnormality. He was discharged from hospital but returned the following day with similar complaints but with further restriction of movement and complaints of pain over the right knee. A soft collar was prescribed. The sutures were removed on 29 July and the plaintiff ceased to be under the care of the hospital on 8 August. He then came under the care of his local practitioner, Dr Shroot, who gave evidence. Dr Shroot in fact saw the plaintiff first on 1 August 1983 when the plaintiff was complaining of tenderness over the neck and shoulder. Dr Shroot again saw the plaintiff on 17 August. In the meantime the plaintiff had been taking pain-killing medication. There was continued complaint of pain on movement of the neck, with restricted head movements in all directions on the several occasions when Dr Shroot saw the plaintiff prior to 27 September 1983 when he first reported to the plaintiff's solicitors. Dr Shroot continued to see the plaintiff on an unspecified number of occasions up until the hearing, treating him mainly for the effects of the accident but also for other illnesses. Dr Shroot said that the plaintiff had complained of considerable trouble with the neck and depression. On 3 February 1984, a date which is of some significance, the plaintiff was complaining to Dr Shroot of soreness of the neck but expressing a desire to return to work. The plaintiff's depression, however, was such that he was referred to a psychiatrist, Dr Grivell, on 12 December 1985. Dr Grivell's report indicates that the plaintiff was complaining of pain in the neck and shoulders associated with headaches and also pain in the mid-thoracic region on the left side and in his legs. He told Dr Grivell that he intended to resume physiotherapy. The plaintiff also complained to Dr Grivell of depression and irritability, difficulty in family relationships and the like. He also expressed the feeling that people resented him because he was not working. Dr Grivell did not appear to doubt the genuineness of the plaintiff's complaints, but felt, accepting that there was some physical cause for pain, that the feelings of depression were "fully reactive in nature to the factors outlined". Dr Grivell recommended some counselling, but apparently this did not take place.

16. The evidence of the treating doctors of the plaintiff's complaints is in general accordance with the evidence given by the plaintiff himself. He did not elaborate greatly in his evidence-in-chief. He was unemployed at the time of his injury and had been attempting to get work through the Commonwealth Employment Service and by setting up in business as a handyman. He had gone to the extent of having cards printed, but there was no evidence that he had advertised in local newspapers or taken any other steps to obtain work in this latter capacity. He had also purchased a block of land at Murrumbateman and intended to build a home on it in order to sell it for a profit. Some time after his injury, the plaintiff received a message from the Commonwealth Employment Service that there was a job available for him, but he explained that he was sick and injured and was told that he would be taken off unemployment benefits and placed on the sickness benefits list. Eventually in February 1984 the plaintiff through his own efforts found part-time work with a firm or company called Ainslie Concreting and this work lasted until September 1984. He was at that stage working about two or three days per week. He said that he was "very very sore" and that in effect he just managed to keep working by taking pain-killers. Then his hands started to swell and the work came to an end. He has not worked in employment since September 1984.

17. The plaintiff described his present pains and difficulties mainly in relation to pain around the neck extending down the front of the chest associated with numbness in three fingers of the right hand and swelling. He stated that he gets headaches when he exerts himself and they extend from the back of the neck to the front of the forehead. He says that he wears his cervical collar about once a week and frequently has to take several showers a day to relieve pain in the neck. He complains also of restriction in the chest. Another area of complaint was of low back pain associated with pain in the leg (presumably the right leg). He further complained of bad concentration and memory, difficulty sleeping, irritability and inability to walk without the use of a stick, at least on some occasions.

18. In cross-examination the plaintiff maintained his complaints of restriction of movements and symptoms of pain, but he conceded a good deal of what was put to him in relation to his actual capacity to carry out physical activities.

19. The plaintiff spends a good deal of time on a small holding that he has just outside Hall and where he runs a small herd of goats. The Court was shown films of considerable length which showed a man, whom I find to be the plaintiff, moving around the farm. The films are of such poor quality though that it is impossible to say more than that the plaintiff is demonstrated to be neither grossly disabled nor particularly agile. The films demonstrate what he conceded in his evidence, namely that he is able to carry out a number of activities on the farm, particularly the milking of the goats, tending to a small vegetable patch and other activities of a light to moderate nature. On occasions, however, as the films demonstrate he uses a stick to assist him in his mobility. A sign on the property offers goats and goats' milk for sale to the public. The evidence does not convince me that the plaintiff makes more than a nominal amount of income from such sales, but it is clear that the plaintiff retains a real earning capacity, although this is not reflected in the actual earning of income. The films also demonstrate that the limp which the plaintiff exhibited in Court does not afflict him when he is on his property.

20. The exact medical nature of the plaintiff's condition and disability is not easy to determine. In my view the major problem the plaintiff has encountered has related to the neck. Dr Shroot made no mention of complaint of lower back pain, nor did Dr Calder, an orthopaedic surgeon, who examined the plaintiff on 11 May 1984 when he was already back at work. The first mention of lower back pain appears to be when the plaintiff was examined by Dr Colin Andrews, a consultant neurologist, on or about 24 July 1984. X-rays and electrical studies carried out at that stage suggested diffuse disc disease in the cervical and lumbar region, aggravated by the injury. At that stage Dr Andrews felt that the plaintiff was restricted in the amount of physical activity he could carry out insofar as such activity would be followed by neck pain and lower back pain. A similar view was taken by Dr Cassar, a consultant physician, who examined the plaintiff for medico-legal purposes in October 1984.

21. On 23 July and 15 August 1985 the plaintiff was examined by Dr Raymond Newcombe, neurosurgeon, who arranged for CT scans of the cervical and lumbar spine. These showed osteophytical narrowing at the C4/5 level on the right and a minimal disc bulge at the L4/5 level. Dr Andrews, with the benefit of the CAT scans reviewed the plaintiff on 14 August 1986. Dr Andrews' view was that there was disc prolapse at C5/6. Dr Andrews also felt that there was possible nerve root entrapment in the cervical and lumbar areas. Taking all this medical evidence as a whole, I consider that it leads to the conclusion that the plaintiff did have a degenerative back condition which was aggravated by the subject injury.

22. The situation is complicated a little by the evidence of Dr Cassar, who in the early stages took much the same view as the other doctors when approaching the case from an orthodox viewpoint. However, in 1986, after expressing considerable scepticism about the degree of the plaintiff's disability, Dr Cassar subjected the plaintiff to a technique known as "thermography". It is not necessary for the purposes of this present case to discuss the technique in detail, but it is sufficient to say that by the use of special photographic equipment and computer processes the technique enables the recording of the temperature over various external areas of the patient's body. The various temperature ranges are then shown up by a printout of a silhouette of the body or part of the body in question. Particular ranges of temperature are depicted by colouring the area in question. For instance, the coldest area is shown in dark blue and the hottest area in dark red. The median temperature is shown in green. If one accepts the medical premise that painful areas of the body are likely to be substantially hotter or colder than adjacent areas, painful areas will be shown in dark blue or dark red. Dr Cassar's opinion based on the thermographic tests was that they confirmed the plaintiff's claims of pain and discomfort in the right side of the neck and in the right arm. The position is less clear as far as the lumbar area is concerned, but on the whole and without coming to any general conclusions about the value of the thermographic tests, I am of the view that the evidence on this aspect of the case confirms the plaintiff's complaints regarding the neck and shoulder and is not inconsistent with his complaints regarding the lumbar area.

23. The next question is to determine whether the present condition has a causal relationship with the injury. In this respect the defendant sought to show that the plaintiff in 1976 had fallen off a horse and had admitted to headaches on and off from that period to the time of the subject injury. The plaintiff himself, however, explained that these were of a different nature from the headaches that he was experiencing after the injury. In my view, the headaches of which the plaintiff has complained since the subject injury are more likely to be related to what has been described as his depressive condition than to any physical basis.

24. As far as the lumbar condition is concerned, the defendant sought to place emphasis upon a motor vehicle collision which occurred when the plaintiff was driving a vehicle on 15 January 1984. The evidence established that the other vehicle in the collision was very substantially damaged. The plaintiff, on the other hand, asserted that he himself received no injury at all and that his own vehicle was virtually undamaged. The plaintiff's credit on this issue was the subject of attack and it was submitted that the plaintiff must have realised that this subsequent collision was entirely due to his own negligence and that he could not claim damages as a result. It was therefore suggested on behalf of the defendant that the lumbar condition had arisen entirely as a result of the second collision and the plaintiff has sought to blame it on the collision in respect of which he now sues. I am not convinced by the defendant's argument on this aspect. I think that the likelihood is that the lumbar condition was masked by the discomfort that the plaintiff was feeling in the neck and shoulder until some time in early 1984 subsequent to the plaintiff resuming work and when his back would have been subject to stress and strain to which it was not exposed during the period of recuperation immediately after the injury.

25. It should also be noted that the plaintiff had lost four days from work due to back strain in October 1980. That is in no way inconsistent with his claim that he suffered back injury on 25 July 1983. Where I think the evidence relating to the previous medical history of the plaintiff is of significance is in the allowance that must be made for the contingency that even without the subject injury the plaintiff may have been rendered incapacitated for work by reason of a degenerative spinal condition.

26. The plaintiff's son and the plaintiff's wife gave evidence, which I accept, which goes to support the plaintiff's claim that he does not do any heavy work around the property or around his house and that he is irritable and depressed. Mrs. Strano gave evidence that the plaintiff uses a hotwater bottle on his swollen hand, but insofar as there is nothing in the medical evidence which convinces me that the accident has given rise to any condition which would cause the hand to swell, I do not think that Mrs. Strano's evidence on this aspect assists the plaintiff's claim.

27. Whilst it is necessary to take into account that at the time of his injury the plaintiff was unemployed, I think that he would not have remained out of employment for any substantial portion of the time between his injury and the present. He had after all been offered a job by the Commonwealth Employment Service soon after injury which he had to decline because of his condition. I think that the assessment of loss of earning capacity in the past and in the future must take into account the likelihood that the plaintiff would but for the injury have been earning income, whether in full-time employment or otherwise, for most of that period. I accept that the plaintiff is not capable of carrying out heavy work but this does not mean, in my view, that his earning capacity has been destroyed. I think that his earning capacity was reflected in the fact that he was for some time able to work more or less in his previous position for about two to three days a week, but that this work at that intensity was beyond his physical capacity.

28. I think the way in which the loss of earning capacity in the past should be approached is as follows. The plaintiff should be assessed as totally incapacitated from the date of injury until the date of his commencement with Ainslie Concreting in February 1984. He should be regarded as having lost about one half of his earnings from then until September 1984. Thereafter he should be regarded as having lost about sixty percent of his earning capacity from then until the present time. In respect of each period there must be some discount for the possibility that the plaintiff might have been out of work in any event. As far as the future is concerned I think that the plaintiff should be regarded as having lost sixty percent of his earning capacity until the age of 60 to 65, but there must be a substantial discount both for the possibility of periodic unemployment during that time and more particularly the possibility that his spinal condition may have been such as to render him further incapacitated for work during the period. The medical views as to the likelihood of incapacity but for injury vary. I think that the most appropriate way to approach the future is to fix a weekly loss to some date between the ages of 60 and 65 and then reduce that figure for the strong contingency that there may have been intervening incapacity in the meantime.

29. Out-of-pocket expenses are agreed at $2,654.39. It is agreed between the parties that the particulars filed and dated 7 August 1986 accurately set out the net wages that the plaintiff would have received assuming that he gained employment commencing 15 August 1986 and worked through until the time of the hearing. The net amount was calculated at $47,788. From that amount is to be deducted what the plaintiff actually earned from 15 February 1984 to September 1984 which was $6,790 gross and which I estimate to be about $5,500 net, reducing the total figure for the period to about $42,200. Against this there should be a reduction for the contingencies I have mentioned of about ten percent, leaving an end figure for past loss of $38,000.

30. At the date of hearing the plaintiff's likely earnings as a licenced drainer, using the Plumbing Industry (ACT) award in evidence as a basis, would be about $300 net per week. I would estimate his continuing loss to be sixty percent thereof, that is to say, $180 per week which on the three percent discount tables gives a figure to the age of 60 of $81,360 and to the age of 65 $113,760. I would accept a median figure of $100,000 and reduce it by twenty-five percent for contingencies to $75,000 to represent the value of the plaintiff's loss of future earning capacity.

31. For pain and suffering and loss of enjoyment of life and bearing in mind the need to avoid over-lapping of heads of damages, I award $25,000 as to which I apportion $15,000 to the past for the purpose of assessing interest. Interest is calculated at 14 percent per annum and the result reduced by one half. Interest is calculated in the same way on the sum for past loss of earnings of $38,000. In summary then damages awarded are as follows:

General damages $25,000.00

Out-of-pocket expenses $ 2,654.39
Past loss of earning capacity $38,000.00
Future loss of earning capacity $75,000.00
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Total: $140,654.39
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32. Viewing the matter globally, this seems to be an appropriate award for damages to the plaintiff in all the circumstances. Interest as indicated above is to be added being $3,500.00 for interest on past pain and suffering and $8,860 being interest on past loss of earning capacity, making a total for damages and interest of $153,014.39. This sum is to be reduced by twenty-five percent for the plaintiff's contributory negligence giving a final figure of $114,760.00. The plaintiff is to have judgment for that amount and unless the parties want to be heard, the defendant is to pay the plaintiff's costs.