Susan Fionna Owens v Midway Amusements Pty Limited [1986] ACTSC 64 (15 July 1986)

SUPREME COURT OF THE ACT

SUSAN FIONNA OWENS v. MIDWAY AMUSEMENTS PTY. LIMITED
S.C. No. 1392 of 1979
Negligence - Contract - Occupier's Liability - Master and Servant

COURT

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

CATCHWORDS

Negligence - plaintiff injured when thrown from amusement device - allegation of breach of personal duty of care - evidence establishing independent negligent acts of employees - whether the plaintiff entitled to succeed without amendment.

Contract - allegation of breach of contractual duty of care - evidence establishing independent negligent acts of employees - whether plaintiff entitled to succeed.

Contract - exemption clause - whether defence of volenti non fit injuria available where exemption clause not proved.

Occupier's Liability - nature of duty owed to invitee indistinguishable from duty of care in negligence.

Master & Servant - scope of employment for purpose of vicarious liability in negligence.

Papatonakis v. The Australian Telecommunications Commission [1985] HCA 3; (1985) 59 ALJR 201

Katsilis v. Broken Hill Pty. Co. Ltd. (1977) 18 ALR 181 at p 206

James v. Harrison (1977) 18 ACTR 36

Charlesworth on Negligence 5th ed. para.923

The Law of Torts 6th ed. at p 349

Bugge v. Brown [1919] HCA 5; (1919) 26 CLR 110 at p 132

The Council of the City of Sydney v. West [1965] HCA 68; (1965) 114 CLR 481

HEARING

CANBERRA
15:7:1986

ORDER

There be judgment for the plaintiff in the sum of $145,000.00.

DECISION

This is an action for personal injuries sustained by the plaintiff on 8 March 1979. The writ was issued on 31 July 1979. Pleadings closed on 19 January 1981. A certificate of readiness was filed on 11 October 1982. The case came into the list for hearing twice in 1983 but for reasons unknown to me the hearing was stood over. Eventually I heard the case on 11, 12 and 13 June 1986.

2. The plaintiff was injured when she was thrown from an amusement device owned and operated by the defendant. The plaintiff called the device a "cup and saucer" although, according to a director of the defendant company, it was called a "tip top" machine. Photographs of the device are in evidence. It consists basically of a horizontal circular wooden platform on which are situated some six to eight cups or cars. The platform is revolved by electrical machinery situated in the middle of the platform. Each ride lasts for some two to two and a half minutes. During the course of the ride one edge of the platform is tilted upwards to a distance of about six feet. Each cup is capable of seating at least four persons. The cups are made of fibreglass and a seat is moulded into the interior of the cup in a semi-circular sort of way, so that the weight of the occupants is not distributed equally. The cups are free to rotate in either direction around a central column which projects about half a metre up from the floor of the cup and at the top of which is a disc, something like a steering-wheel. This disc or steering-wheel is fixed, and the occupants of the cup can use it to make the cup rotate by pulling or pushing on it. The combined effect of the revolving and tilting of the platform together with the uneven distribution of the weight of the occupants of the cup and whatever efforts the occupants make to rotate the cup around the steering-wheel is that the cup rotates during the course of the ride. It is presumably the uneven and unpredictable speed of rotation of the cup that makes the device attractive to those who ride on it. There was no evidence as to the speed of the revolving of the platform, and it is difficult to know exactly what sort of a ride the occupants would experience if there was not some effort on their part to rotate the cup around the steering wheel.

3. On the day in question the device was in operation at the Petrie Plaza, Civic. The plaintiff said that during her lunch break she was with two colleagues from her place of work. She bought three tickets from a ticket box and then with her colleagues entered one of the cups. She said that the ride commenced, the platform tilted and the cup "spun gently" until the platform was lowered and the cup came to a standstill. She said that two men, apparently of Maori extraction and wearing jackets bearing the name of the defendant company, then approached the cup and began to spin it by pulling or pushing around the rim. The speed of rotation was such that the plaintiff felt herself being forced back against the side of the cup until she was eventually flung up and outwards onto the platform. Mr. David Hendry, one of the plaintiff's colleagues, gave evidence that after the ride commenced he himself used the central column to make or help the cup to spin, and that an attendant boosted the speed by spinning the cup by the rim. Whilst the ride was proceeding, according to Mr. Hendry, another attendant came and both attendants spun the cup so quickly that the plaintiff slid up over the top of the cup and was flung out. According to Mr. Hendry, the ride proceeded to another circuit before it came to a stop. According to Miss Limberick, the other colleague of the plaintiff, attendants were pushing and pulling the various cups on the platform "here and there" immediately after the ride started.

4. Mr. Keith Alfred March, a director of the defendant company, gave evidence that there had never been, to his knowledge, any prior complaint of injury to a person riding on a tip top machine. He was asked several questions relating to the usual duties of persons employed to work on the machine. He said it was not the task of the employees to spin the cups when the machine was coming to a standstill or when it had come to a standstill. Significantly, however, he did not assert that it was no task of the employees to boost the rotation of the cups whilst the platform was rotating. Mr. March also gave evidence that it was the practice of the company at the time to allow entry on to the machine only by purchase of a ticket, which ticket bore an endorsement in the nature of an exemption clause. I shall return to this aspect of the case later. Mr. March was one of three directors of the company. He was not in Canberra at the time of the plaintiff's injury, and gave no evidence as to his knowledge of the actual organization of the defendant's affairs in Canberra at or about the time of the plaintiff's injury. At that stage he said that he was probably in Armidale or Tamworth.

5. The plaintiff brings her claim alleging breach of contract, common law negligence and breach of the duty owed by an occupier to an invitee. There is no distinction in the duty alleged in the statement of claim as being established by the agreement between the parties from the duty alleged in the claim for negligence. Nor is there any distinction in the nature of the breach alleged. It has now been conclusively determined that the nature of the duty owed by an occupier to an invitee is not to be distinguished from the ordinary duty of care in negligence: Papatonakis v. The Australian Telecommunications Commission [1985] HCA 3; (1985) 59 ALJR 201. The nature of the duty and of the breach is therefore common to each of the three causes of action.

6. The particulars of the failure to take reasonable care were as follows:

(a) Failure to warn the plaintiff of the danger

presented by the spinning cups.
(b) Failing to provide safety gates on the
machine.
(c) Failing to provide a suitable seatbelt or
other restraining device for the use of and
benefit of the plaintiff.
(d) Instructing or permitting its servants or
agents to spin the cup in which the
plaintiff was sitting at a speed which
caused the plaintiff to lose her balance
and control.

7. It is to be observed that the pleadings read in the light of the particulars allege a breach of a personal duty of care owed by the defendant to the plaintiff either as a contracting party, or as a person to whom a duty of care is owed in accordance with the ordinary principles of the law of negligence or as an invitee. In my view, however, although the plaintiff has established the existence of the personal duty of care, she has failed to establish that the defendant is in breach of that personal duty. There was no evidence of a similar occurrence ever happening to an occupant on the device on any previous occasion, either with or without the intervention of employees manually boosting the speed of the rotation of the cup. There was no evidence that restraining belts or safety gates were or are used in similar amusement devices either within or outside the defendant's enterprise. There is finally no evidence that would permit a finding that the defendant should have known of the mischievous propensity of its employees to increase the danger of the operation by boosting the speed of the rotation of the cups to such an extent that an occupant might be flung out of it. It is quite clear in my view that, leaving aside considerations relating to the activities of the employees on the day in question, there was no failure by the defendant to take reasonable care for the safety of the plaintiff or indeed of the other persons who were riding with her on that occasion.

8. It was apparent, however, as the case proceeded, and more particularly so at the conclusion of the evidence, that the plaintiff relied not only upon a breach of the personal duty of care owed by the defendant company, but on the individual acts of the attendants whom it was alleged boosted the speed of rotation of the cup. There was no issue at the end of the evidence that those persons were employees of the defendant. It was alleged on the plaintiff's behalf that the acts of the employees in spinning the cup to a speed sufficient to propel the plaintiff from the cup involved a failure on their part to take proper care for the safety of the plaintiff and that such a failure occurred during the course of the employment of those employees with the defendant company. Although the pleadings were not drawn in such a way as to allege a vicarious liability for the negligence of those employees, the evidence which goes to establish the case made out by the plaintiff, although framed in terms of a breach of a personal duty resting upon the defendant, is in fact no different from that which would establish vicarious liability in the defendant. If the plaintiff has made out a case on vicarious liability, the state of the pleadings alleging breach of a personal duty of care should not preclude her obtaining a verdict: Katsilis v. Broken Hill Pty. Co. Ltd. (1977) 18 ALR 181 at p 206. However, and although it may not be necessary to decide the point, it seems to me doubtful whether the plaintiff is as a matter of law entitled to succeed on the claim for breach of contract by establishing a negligent act on the part of an employee for which the defendant is vicariously responsible.

9. It was submitted that the acts of the attendants were such that the defendant could not be held vicariously responsible for those acts in the sense that the plaintiff had failed to establish that those acts were committed within the course of the employment. There was a threshold submission that the acts of the attendants indeed could not be shown to be negligent but amounted to an assault. There was evidence from the plaintiff and Miss Limberick that the attendants spun the cup in order to harass Mr. Hendry, who apparently was considered to be somewhat effeminate in appearance. Clearly Mr. Hendry did not regard the attendants as attempting to harass him, and I reject the notion that the action of the attendants amounted to an assault. Alternatively, so it was submitted by the defendant, relying upon the evidence of Mr. March, the spinning of the cups formed no part of the employees' duties at all, and was indulged in by those employees as some sort of horseplay for which the defendant is not responsible. I reject this submission. The ride offered by the device in question was a rather benign one, unless the cup was activated in some way or other, either by one of the occupants pulling or pushing at the steering-wheel, or an attendant pushing or pulling at the rim of the cup or a combination of both. I am satisfied by the evidence of Miss Limberick and Mr. Hendry that up to a certain point in the proceedings the cup was given a boost which was within the normal course of operations. Although the machine may have been slowing down, I find that the platform was still rotating when two employees of the defendant began to spin the cup in which the plaintiff was seated beyond a reasonably safe speed. To boost the speed of the rotation of the cup whilst the platform was still in motion to such a speed that the plaintiff was likely to be ejected, constituted, in my view, a failure to take reasonable care for the safety of the plaintiff.

10. In James v. Harrison (1977) 18 ACTR 36, McGregor J. cited with approval a proposition from Charlesworth on Negligence 5th ed. para. 923:

"A master is liable for the negligence of the
servant if committed in the course of his
employment."

(The decision was cited in the 7th edition of the text at page 105 as authority for the correctness of the proposition.) Fleming The Law of Torts 6th ed. at page 349 refers to the elastic nature of the concept of "the course of employment". It is clear that the scope of the employee's authority is no longer a test. In Bugge v. Brown [1919] HCA 5; (1919) 26 CLR 110 at p 132 Higgins J. said that:

"The precise terms of the authority are not the
criterion of liability: the function, the
operation, the class of act to be done by the
employee, is the criterion - whatever be the
instructions as to the time, the place, or the
manner of doing the act."

11. I find that it was part of the function and the operation of the employees of the defendant to boost the speed of the spinning of the cups on the machine, and as I have already said that it was a negligent performance of such function or operation to spin the cup at such a speed that the plaintiff was likely to be ejected from it as she was in fact ejected. The breach of the duty of the defendant in negligence and as occupier of the premises is established.

12. It was argued, however, on behalf of the defendant that no duty in fact arose, because of the provisions of an endorsement which it was alleged were contained upon the ticket which the plaintiff purchased prior to her riding on the device. Insofar as the plaintiff's claim is based upon breach of contract, this defence raises an issue as to the terms of the contract. Insofar as the plaintiff's claim was based on negligence and breach of occupier's duty, it raises the issue of volenti non fit injuria, the consenting of the plaintiff to the running of the type of risk which in fact gave rise to her injury. The plaintiff's evidence was that the tickets she purchased bore only the words "Admit one". She denied that she received a ticket in the form of what was shown to her in the witness box and which became exhibit B. Miss Limberick said nothing about what appeared on the tickets. Mr. Hendry denied that exhibit B was similar to the tickets purchased. The plaintiff said that the ticket purchased was pink in colour. Mr. March, who gave evidence for the defendant, spoke only as to the system of the defendant. He was unable to say anything about the ticket which the plaintiff in fact received. He said that it was "possibly pink", but there were also standby rolls which were sometimes used. He said that the tickets were usually prepared the night before the sale, but as to what was entailed in such preparation, he did not say. There was tendered in the defendant's case a ticket which Mr. March says was an example of the types of tickets that the defendant sold for rides on its machines in 1979. This ticket, pink in colour, exhibit 2, bore an endorsement on the front in these terms: "Issued subject to conditions on back hereof." On the back of the ticket, exhibit 2, appear the following words:

"NO ALCOHOL

Persons riding on this ride do so at their own
risk. No responsibility accepted for injury to
persons or damage to property from any cause
whatsoever."

13. However, it is to be observed that the words on the back of the ticket, exhibit 2, and the words on the back of the ticket, exhibit B, are not identical. The words "No alcohol" do not appear on exhibit B. The words "Management may refuse the right of entry" appear on exhibit B but not on exhibit 2. Furthermore the type of print on exhibit 2 is distinctly different from that on exhibit B. A defendant wishing to rely upon an exemption clause for the purpose of excluding him from liability for the consequences of his negligent conduct, bears the onus: The Council of the City of Sydney v. West [1965] HCA 68; (1965) 114 CLR 481. In this case I am not satisfied that the defendant has discharged the onus of showing that the plaintiff purchased a ticket in the form of exhibit B or exhibit 2. Insofar as the defendant relied upon certain other parts of the evidence to establish the defence of volenti non fit injuria, in particular an admission by the plaintiff in evidence that she realised that there was a risk associated with riding on the device, again I find that the defendant has failed to discharge the onus. What the plaintiff consented to were the risks that were, foreseeably to her, inherent in the nature of the ride on the device, but those dangers did not include the intervention of over-zealous employees.

14. Accordingly the plaintiff succeeds on the claim in negligence and on the claim in occupier's liability.

15. I turn now to the question of damages. The plaintiff was born on 5 September 1951 in South Australia. She finished school at the age of 13 and completed an apprenticeship as a hairdresser in 1969. She came to Canberra soon thereafter and married a man called Sharp. She took up employment in Canberra but not immediately as a hairdresser. Her first child was born on 19 July 1971 and her second child was born on 7 December 1972. Soon after the birth of the second child she and her husband separated and she returned to Adelaide. She came back to Canberra at the end of 1973 and has lived in the area most of the time since. She has had the responsibility for the upbringing of the children who have been in her care and control all the time. From 1973 until some time in 1975 the plaintiff worked sometimes full-time and sometimes part-time as a hairdresser. In 1975 she met a man called McLean and she spent part of 1975 and 1976 with him and the children in the United Kingdom. In 1976 she returned with the children to Canberra and once again resumed her occupation as a hairdresser. In about 1977 she formed an association with a man called Hand with whom she was keeping company at the time of her injury. It was in about 1977 also that she accepted an offer from a Mr. Merrity to work for him or with him in some sort of business relationship which seems to have resembled a partnership. The business was situated in Bunda Street, Civic. Mr. Merrity supplied the capital in order to set up the business, although he resided in Sydney. The plaintiff was on a basic salary or wage of $250 per week together with a half share of the profits. The plaintiff did not produce any records relating to this business, or indeed in relation to any of her financial claims, but she said that whilst in association with Mr. Merrity she received certain other benefits. For instance, the business paid for her children to be taken to and collected from school by hire car each day. There was no evidence as to what the profits of the business were up until the time of her injury.

16. The plaintiff attended Royal Canberra Hospital on the day of her injury, but after being treated in the casualty section she was discharged after a couple of hours. She continued with her work and said that she experienced pain in her back, neck and shoulders. After a few weeks she sought treatment at the Melba Health Clinic. She was referred, so she said, to the John James Hospital and to Dr Newcombe. She was also receiving treatment from a local practitioner, Dr Ingram. However, no reports or any other material from those sources were presented in the case. During the course of 1969 the plaintiff said that the pain continued and she was forced to make greater use of the junior staff. She was unable to attend to the hair of the customers to the same extent as previously and bought a mobile stool from which to carry out some of her work. In July 1979 the plaintiff was referred by Dr Ingram to a neurosurgeon, Dr Andrews. Dr Andrews gave evidence and furnished reports. When the plaintiff was first seen she was complaining of neck pain, lower back pain and headaches. A cervical collar was prescribed together with pain-killing medication. The situation continued over the next six months or so. The plaintiff was admitted to the Royal Canberra Hospital in late 1979 for a myelogram. She was in hospital for about two weeks and reacted badly to the procedure. Although the myelogram disclosed no abnormality in the cervical lumbar areas, Dr Andrews, according to his report of 18 December 1979, thought that the plaintiff's symptoms had suggested a probable disc prolapse in the neck and almost certainly at L5/S1 in the lumbar spine.

17. During 1979 the plaintiff ceased her relationship with Mr. Hand and began keeping company with Mr. Owens whom she subsequently married in January 1980. By that time the business in Bunda Street had closed down. The plaintiff said and I accept that the clientele had fallen off subsequent to the plaintiff's injury. In fact, losses were sustained and Mr. Merrity began legal proceedings against her to recover one half of the loss which was alleged to be $7,000. However, once again no documentary material was placed before me and the plaintiff's evidence as to the quantification of the loss is inconclusive and is based entirely on hearsay. As I understand it, she did not concede the loss in the proceedings brought by Mr. Merrity. Although I accept that the plaintiff suffered a loss of earning capacity during 1979, I am not convinced that the failure of the business was attributable to the injuries. In about February 1980 Mr. Owens saw fit to invest about $12,000 in a hairdressing business to be managed and operated by the plaintiff in Lonsdale Street, Braddon and known as "Omni". The plaintiff was able to work a full week in this business, less half a day which she took off for the purpose of attending to the needs of the children. The plaintiff in fact continued to work in this business until about the end of 1982. By that time there had been a deterioration in the marriage. The plaintiff found sexual intercourse painful because of pain in the neck and back. Her husband moved to Goulburn in September 1982. The business was sold on 15 December 1982 for about the same amount of money that was invested in it.

18. During the years 1980 to 1982 the plaintiff sought medical attention from Drs Corry and McNicol. When Dr Corry saw her for the first time at the Scullin Health Centre on 28 March 1980 the plaintiff had had a variety of treatment including traction, physiotherapy and massage all of which produced short-term relief only. The plaintiff complained of pain in the left leg, right arm, neck, shoulders and head. She complained of weakness in the left leg with limitation on weight-bearing and of clumsiness with her hands. Dr Corry noted a slight limp. His conclusions at that stage were, however, that it was unlikely that the plaintiff had suffered disc protrusion and that her symptoms related to what he called "spastic muscular inco-ordination" brought on by the accident but involving a number of secondary problems including anxiety and depression. Even at that stage the plaintiff was extremely concerned about what she considered to be the deterioration of the business, although it had been commenced only a month or two previously. Dr Corry recommended a number of self-help measures, but when he next saw the plaintiff on 2 June the plaintiff had not been able to carry out his recommendations. Because of the financial commitment to the business the plaintiff saw herself as having no alternative but to continue with the heavy physical and emotional demands that the business was placing upon her. Both the plaintiff and her husband expressed great anger to Dr Corry about her situation and Dr Corry declined recommending physiotherapy to the plaintiff because it would "add yet another difficulty to already over-crowded days".

19. The plaintiff's claim as to her symptoms at about this time and continuing up until the present was considerably strengthened by the evidence of Dr E.T. Cusick, who happened to be a neighbour in the same group of townhouses in which the plaintiff lives. Over the years Dr Cusick's assistance has been sought frequently by the plaintiff and he gave evidence of how he has observed her in the home and around it obviously in considerable pain, sometimes virtually unable to move. He has prescribed pain-killing medication and considers that the plaintiff uses it sparingly. Dr Cusick said that he persuaded the plaintiff to see Dr McNicol, although the plaintiff herself claims that she saw Dr McNicol on behalf of the defendant. At any rate, when Dr McNicol saw her for the first time on a date which is unspecified in his report of 10 November 1981, he considered that she had probably sustained a significant neck injury with also a possible disc disruption in the lumbar spine. Discograms taken presumably some time shortly before Dr McNicol's report of 10 March 1982 demonstrated disc degeneration at the L3/4 and L5/S1 levels, although apparently nothing in the cervical spine. In any event, Dr McNicol performed a discectomy and fusion at the L5/S1 level on 7 April 1982, and upon review about six weeks later, the plaintiff said that she was feeling much better. Dr McNicol prescribed a program to rid the plaintiff of the necessity of wearing a brace at the end of a further three months. It is not quite clear when Dr McNicol next saw the plaintiff. It was either 6 June 1984 or 20 November 1984, the plaintiff still complaining of lower back pain, pain across the shoulders and headaches. Dr McNicol once again recommended discograms of the cervical spine but it seems that the plaintiff cancelled the arrangement for these.

20. In the meantime, according to the plaintiff, she returned to part-time work towards the end of 1982 after a three month absence from work associated with the disc removal. After her husband moved to Goulburn in September 1982 the plaintiff joined him there sometime after the closure of the Omni Hair Salon. She remained in Goulburn with her husband until July 1983. During that time she worked apparently for most of the time on a part-time basis for a hairdressing salon in Goulburn for which she appears to have received up to $350 per week. It was unclear whether that amount was before or after tax. The marriage continued to be unsatisfactory and she returned to Canberra she says on 15 July 1983. She again consulted Dr Corry some few days later. She had seen Dr Danta in Canberra on reference from her solicitors. Dr Danta gave evidence but he did not add to the total picture.

21. By this time the evidence as to the plaintiff's complaints becomes more precise. She told Dr Corry that although there had been improvement in her symptoms after the operation performed by Dr McNicol, there was a progressive recurrence of those symptoms over the previous six months back to the beginning of 1983. The plaintiff was mostly conscious of pain in the lower back but she also complained of pain in the area of the bone graft. She had resumed working casually in a friend's hairdressing salon in Canberra. By this time Dr Corry's assessment had changed somewhat and he took the view that the predominent problem was of pain in the lower back which was related to the injury of 8 March 1979. I accept this opinion. It seems to me that the plaintiff's condition up until the time of the operation by Dr McNicol was complicated if not dominated by personal and business factors, but subsequent to the operation the symptoms of lower back pain predominated. Clearly, the operation, although it provided some relief for several months, was of negative benefit in the long run. When next seen by Dr Corry on 15 June 1984, the situation was further complicated by the plaintiff having been involved in another injury, this time in a motor vehicle accident which exacerbated the situation. The exacerbation does not appear to have lasted more than a month or two although the plaintiff complained that her symptoms were getting progressively worse. Dr Corry associated this with marital problems. At that stage Dr Corry decided that the plaintiff ought to give up hairdressing and look for some other occupation. He assumed that at that stage divorce proceedings were in train. Dr Corry also recommended further physiotherapy and other rehabilitation measures. The plaintiff appears, however, to have disregarded that advice and she did not see Dr Corry again for treatment. She did later in 1984, as I have already indicated, go back to Dr McNicol, but again she disregarded his recommendations for further treatment.

22. In the meantime the plaintiff had at some time towards the end of 1983 changed employment and begun to work for a salon called "Hairport" and later for her present employer, Mr. Kevin Smith, who owns a hairdressing salon called "Head Office" at Mawson. For the past two or three years the plaintiff has received a supporting mother's benefit as well as the wages that she receives from Mr. Smith. She works ten to twelve hours a week and she says that she restricts her working hours not because of any apprehended restriction of the supporting mother's benefit, but because her physical condition prevents her working any longer. I am sceptical about this explanation. The shorter working hours no doubt assist her in the discharge of her duties as a mother and in her active role as a judge of hairdressing competitions for which she travels around. She earns about $70 per week in addition to her supporting mother's benefit. I presume that she and the children receive no maintenance from her husband.

23. Dr Corry last saw the plaintiff on 18 April 1986. Her complaints to him were described in much greater detail than in her evidence to the Court. She also told Dr Corry that she works only eight hours a week, that she is always worse after she has been working but feels that it is important for her own self esteem and for financial reasons to keep working. I think that she has probably exaggerated the situation in her description to Dr Corry, but I am satisfied that the plaintiff does continue to suffer from persisting pain in the neck and in the lower back. Pain in the mid back is a current complaint which is more difficult to fit into the overall picture. Dr Corry reported that he saw some x-rays which were performed subsequent to his report of 18 April 1986, that these show slight anterior wedging of the T9 vertebra consistent with a previous compression type injury, and early degenerative change elsewhere in the thoracic spine. Dr Corry said that he had little reason to doubt that the compression fractures noted must have occurred "in the motor vehicle accident in question as she reports no other injuries that may have caused this event." Dr Corry was not questioned about this in his evidence. It is not clear whether he was referring to the motor vehicle accident in 1984 or to the plaintiff's injury in March 1979. It is remarkable that the changes in the thoracic spine were not noticeable until seven years after the 1979 injury. In any event Dr Corry's assessment is that the plaintiff is capable of working a full week in restricted activities although he would not think that she is capable of carrying out hairdressing activities for more than half of this time. I accept that assessment in general terms although it is likely that there would be days when the plaintiff was not able to work a full day or not able to work at all.

24. I find overall that the plaintiff's injury has caused a substantial disruption to her life resulting as it did in disc protrusion of the lumbo-sacral level and possibly at the cervical levels. The injury prevented the plaintiff from carrying on her occupation as a hairdresser for more than half of a normal working week. It prevented her from working altogether for a period of about six months in 1982 but she did improve thereafter reaching a peak of fitness sometime in the beginning of 1983. Thereafter she continued to deteriorate and, I find, reached her present condition some time towards the end of 1983. The plaintiff's physical condition has been aggravated by other matters particularly her personal relationship and her business responsibilities. I take into account that the defendant must accept the plaintiff for what she was at the time of injury, but in my view it is impossible to say that the plaintiff would have had a trouble-free marriage even without the injury. Whilst I accept the evidence that the plaintiff was a very capable hairdresser at the time of injury, I am unable to conclude that if she had not been injured she would have been an outstanding and unqualified success in a business carried on her own account. Evidence was given by a Mr. Robert Parsley, a hairdresser of Queanbeyan, as to the income that may be commanded by a talented hairdresser who is also successful in business in Canberra. The evidence of Mr. Parsley, however, was imprecise in detail. For instance, he spoke of his earnings from his own activities as a hairdresser carried on from 9 a.m. to 6 p.m. six days a week. This brings him in between $1800 and $2300 per week, in addition to which he gets 20% of the takings of his employees amounting to $20,000 per year. This would make a total income of $2,700 per week, but Mr. Parsley did not give evidence which I could follow relating to overheads and the like. In any event it is still not settled, even on the balance of probabilities, that the plaintiff will continue to reside in Canberra. She may yet resume her life and career in Goulburn where the financial potential for a hairdresser is unclear. The plaintiff was able to earn up to $350 per week there, apparently before deduction of tax, in early 1973. Whilst it may well be that if the plaintiff had been as outstandingly successful as Mr. Parsley, she would have been able to look forward to long and hard hours rewarded by high earnings, a glamorous life style, trips overseas every couple of years and so forth, I find that on the probabilities had she not been injured she was more likely to be in the position of her present employer, Mr. Smith. His evidence, which was reasonably clear, was that he earns from $500 to $800 per week after deduction of business expenses and before tax. On this basis I am prepared to assess the plaintiff's likely present earning capacity but for injury at $400 net of tax per week and her present continuing loss at $200 per week. The general damages will take into consideration the loss of chance that the plaintiff might have gone on to even greater heights in the world of hairdressing.

25. I assess the plaintiff's loss of earning capacity in the past in the following way:

8 March 1979 to 8 March 1982 at $150 per week = $23,400
9 March 1982 to 8 September 1982
at $250 per week = $ 6,500
9 September 1982 to 8 July 1983 Nil
9 July 1983 to 8 September 1983 at
$150 per week = $ 1,200
9 September 1983 to date at $200 per week = $29,400
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Total: = $60,500
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26. As far as the future is concerned, I think that with the ending of litigation the plaintiff will be in a position to do what she had always intended to do in her occupation as hairdresser, namely to set up a business with adequate capital backing. I expect that her present economic loss of $200 per week would continue for about a year but after that she should be in a position to run a hair salon herself, attending to the actual hairdressing activities for about half the time and attending to supervisory duties for the remainder of the working week. She should be able to adjust her hours to suit her working capacity, her need to attend to the children and her interest in judging hairdressing competitions. Accordingly, at the end of another twelve months her loss of earning capacity will be reduced very substantially. It is impossible, in my view, to quantify that future continuing loss on a periodical basis. However I note for the purposes of calculation that projecting the loss into the future for another twenty years which would bring the plaintiff to about the age of 55 years, $1 per week continuing loss may be capitalized on the 3% discount table to a present lump sum of $788. Using that figure as a check and taking into account all vicissitudes, I think an appropriate sum to fix for future loss of earnings for the twelve months in the immediate future is $10,000 and from June 1987 onwards $40,000 making a total of $50,000 for the future.

27. As far as pain and suffering and loss of enjoyment of life are concerned, I take into account that the injury has contributed to a considerable disruption of the plaintiff's life to a continued measure of actual pain and suffering and to periods in which the pain and suffering have been quite acute. Nevertheless I must also take into account what I have already said about the contributing factors of marital breakdown and business difficulties. I award $30,000 for pain and suffering and loss of enjoyment of life. Out-of-pocket expenses are agreed at $5,786. No interest may be claimed having regard to the date of the commencement of the action. Total damages should be rounded out to $145,000, which viewed globally seems appropriate. The plaintiff is to have judgment for that amount. I will hear the parties on costs.