John Peris v Paul Damien Rochford [1987] ACTSC 61 (27 August 1987)

SUPREME COURT OF THE ACT

JOHN PERIS v. PAUL DAMIEN ROCHFORD
S.C. No. 311 of 1984
Negligence - Damages - Evidence

COURT

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

CATCHWORDS

Negligence - motor vehicle accident - vehicle driven by plaintiff hit in rear by defendant's vehicle - defendant's control over vehicle affected by liquor - plaintiff stopped vehicle to assist pedestrian - no contributory negligence - no new matter of principle.

Damages - soft tissue injury in lumbar spine - exacerbation of degeneration in cervical spine - continuing cervical pain - perception of pain aggravated by depression - depression brought about by failure of plaintiff's business - failure of business related to effect of injury - no new matter of principle.

Damages - plaintiff a self-employed restaurant proprietor with little formal education - difficulty in quantifying earning capacity - no new matter of principle.

Evidence - failure by both sides to call eye-witness - whether any inferences can be drawn - no new matter of principle.

Evidence - plaintiff as witness of truth - corroborating evidence from son - no new matter of principle.

Todorovic v. Waller [1981] HCA 72; (1981) 150 CLR 402

HEARING

CANBERRA
27:8:1987

ORDER

There be judgment for the plaintiff in the sum of $123,394.61.

DECISION

This is an action for damages for personal injuries arising out of a motor vehicle collision. The collision occurred at about 11.30 p.m. on Tuesday, 16 August 1983 on the Tuggeranong Parkway. The plaintiff was driving a sedan southward. As he approached the bridge over the Molonglo River he saw someone on the left-hand side of the roadway trying to attract his attention. He pulled his vehicle over to the left in order to stop to assist that person. After the vehicle came to a halt on the bridge and whilst he was waiting for the person to approach, his vehicle was struck on the rear offside by a vehicle driven by the defendant. The plaintiff's vehicle was propelled forward and the defendant's vehicle came to a halt some distance ahead of the plaintiff's vehicle.

2. Both the plaintiff and defendant gave evidence. Neither of them were impressive witnesses. I shall have something more to say about that as regards the plaintiff on the question of damages. On the question of liability it is appropriate to look at what evidence there is apart from the testimony of the plaintiff and defendant. The plaintiff claimed that he had pulled as far to the left as it was possible to do on that section of the Parkway. Photographs disclose that there is a distance of less than half a metre from the marked left-hand edge of the southbound carriageway to a concrete wall with a steel railing about a metre in height which serves as the eastern side of the bridge. On the northern approach to the bridge there is a section of roadway on the left-hand or eastern side which serves as an extra lane or layby for about 50 metres at least. The space occupied by this extra lane narrows down markedly so that in the last 20 metres or so there is insufficient space for a southbound vehicle to remain wholly in it. I find that the plaintiff first observed the person on the side of the road when the plaintiff was somewhere adjacent to the extra lane, that is no more than fifty metres from the bridge. I find that when the vehicle came to a halt its near-side wheels were about 300 centimetres to the left of the unbroken white line which marks the eastern edge of the carriageway. I am not satisfied that the plaintiff checked his rear vision mirror before he brought the vehicle to a halt. I am unable to determine whether, if the plaintiff had looked in his rear vision mirror prior to bringing his vehicle to a halt, he would have been able to observe the lights of the defendant's oncoming vehicle. The photographs show only fifty metres or so of the northern approach to the bridge. It is a matter of common knowledge that the Tuggeranong Parkway consists of long, straight stretches and sweeping bends, but I cannot determine on the evidence how far north the plaintiff's vision in his rear vision mirror would have extended.

3. I accept the plaintiff's evidence that when his vehicle came to a stop he then looked in his rear vision mirror and noticed the lights of two oncoming vehicles which appeared to him to be "zig zagging". One of those vehicles was that driven by the defendant and which drove into the rear of the plaintiff's vehicle. I am satisfied that the lights on the plaintiff's vehicle were functioning correctly and that his vehicle was stationary and not reversing at the time of impact.

4. The defendant's evidence was that he had been proceeding south in the Tuggeranong Parkway having come from the Belconnen area and travelling at a speed which he claimed was between 90 and 100 kilometres per hour, the latter being the speed limit. He said that he overtook another vehicle and moved back into the left-hand lane. He then noticed on the left of the roadway a person who I find was the same person whom the plaintiff had noticed. The defendant said that he was temporarily distracted but continued nevertheless. He said that he then noticed a vehicle immediately in front of him reversing, and he attempted to go around this vehicle to the right. He claimed that he was unable to move into the right-hand lane however because that was occupied by another vehicle. Accordingly, there was insufficient space between the vehicle reversing and the vehicle in the right-hand lane, and the defendant's vehicle struck the vehicle reversing, which turned out to be the vehicle driven by the plaintiff.

5. The defendant pleaded guilty to a charge of driving with more than the prescribed content of alcohol and a certificate tendered under s.94 of the Evidence Ordinance 1971 and a police report together establish a blood alcohol content of over 0.19. The defendant was adamant in his evidence however that his consumption of alcohol in no way affected his skill or judgment on the occasion in question. Although he insisted that the vehicle driven by the plaintiff was reversing at the time of collision, he conceded that the collision would have occurred even if the plaintiff's vehicle had been stationary.

6. I have little hesitation in finding negligence on the part of the defendant in that he allowed his control over the vehicle to be affected by liquor, that he failed in effect to keep a proper control over the vehicle and that he failed to keep a proper lookout. He did not reduce the speed of the vehicle when he was distracted by the person on the side of the road, and he did not observe the plaintiff's vehicle until it was less than fifty metres ahead of him. The area was well lit, the night was fine and clear, and if the defendant had been keeping a proper lookout he would have seen the plaintiff's vehicle before he noticed the pedestrian. I reject the submission put on behalf of the defendant that even if he had been careless, his carelessness did not materially contribute to the collision and that the sole cause of the collision was the action of the plaintiff.

7. On the question of contributory negligence, I think that the plaintiff was guilty of a failure to take reasonable care for his safety by failing to check in his rear vision mirror before he brought his car to a halt. However I am not satisfied that that act of carelessness contributed in any material way to the collision because, as I have already said, the evidence does not enable me to make a finding that even if he had checked his rear vision mirror at that stage the defendant's vehicle would have been in such a position that it would have been visible to the plaintiff. It was also submitted on behalf of the defendant that simply by stopping the car on the bridge the plaintiff was guilty of contributory negligence. I take into account that the Tuggeranong Parkway in the area consists of two southbound lanes and two northbound lanes separated by a median strip or wall some 300 centimetres in height. The Parkway carries fast moving traffic and obviously to bring a vehicle to a halt within any of the lanes constitutes some danger. However, it has to be remembered that the collision occurred late at night, the area in the vicinity of the bridge was reasonably lit by overhead standards, and the plaintiff made the decision to stop in the light of what reasonably appeared to be an emergency. Perfection might have required him to drive on to the other side of the bridge before stopping, but I am not convinced that his failure to do that constituted a lack of reasonable care on his part, when it has not been shown that when he stopped the lights of the vehicles behind him would have been visible. Although the plaintiff's observation of the traffic conditions was not entirely adequate, I prefer his evidence that there were no other vehicles on the scene at any relevant time apart from those two vehicles which he observed in his rear vision mirror. The defendant on the other hand suggested that there were a number of vehicles in the vicinity, and I reject that suggestion.

8. It was submitted on behalf of the defendant that some inference should be drawn against the plaintiff because he had failed to call evidence from the person on the side of the road, but I am not satisfied that that person has ever been identified and in any event the inference might just as easily be drawn against the defendant. I draw no inference against either party from the absence of evidence from the person on the side of the road.

9. I turn now to damages. This is a most difficult question to determine, partly because of the presentation of the plaintiff in the witness box and partly from the nature of his case, particularly his claim for economic loss. At the time of the collision the plaintiff was nearly 49 years of age. He carried on business as a restaurant proprietor. He was born in Greece and had little education. He came to Australia at the age of 14 years and started off his working career in this country at that age assisting in a cafe run by a relative at Goondiwindi, Queensland. He followed a variety of unskilled positions over the years, many of them in milk bars and the like, until he acquired the restaurant business in 1981. There is some dispute as to the extent to which he had worked in the year prior to 1981 and I shall return to this aspect. He borrowed money in order to purchase the business for more than $30,000. The business was clearly not a financial success over the next couple of years. During the months prior to the collision the plaintiff claimed that the business was starting to make good, but this cannot be supported on the documentary evidence. What I think is clear is that whatever the financial position, the plaintiff gained a great deal of pleasure and pride from conducting the restaurant. Photographs taken prior to the date of collision show him to be an exuberant, youthful looking and jovial man, forever extending his glass to toast the photographer. He now presents as an old man looking at least ten years older than he is, stooped and walking with a shuffle. The case for the defendant rests upon an assertion that the plaintiff is in effect a malingerer. My finding is that the plaintiff is certainly capable of exaggeration as to his symptoms and disability and of dramatisation at least to the extent of projecting the image of a broken down old man. In the light of the medical evidence, however, it is my view for reasons which I will explain that he suffered a disabling injury. The difficulty is to know where the border lies between truth and exaggeration, and between conscious and unconscious exaggeration.

10. The second major difficulty in the case relates to the loss of earning capacity. The particulars filed and served on the defendant setting out the plaintiff's claim in this regard allege a substantial diminution in the profitability of the restaurant business brought about as a result of the plaintiff's inability to work and also a consequent loss upon the subsequent sale of the business. A good deal of the time taken in the case was spent in what appeared to be evidence called by the plaintiff for the purpose of proving the loss claimed in particulars and by cross-examination on behalf of the defendant designed to test that evidence and to deny that claim. As it turns out however I have come to the conclusion that it is not appropriate to approach the assessment of the plaintiff's loss of earning capacity in that way.

11. Even an evaluation of the plaintiff's physical injury presents problems in that there is in my view a substantial psychological overlay which causes the plaintiff to perceive his difficulties as being greater than he would otherwise perceive them.

12. The plaintiff's claim is put on the medical basis that he is suffering from the ongoing effect of an exacerbation of degeneration in the cervical spine and of depression. It is also put that he suffered soft tissue injury in the lumbar spine from which he has now recovered. The latter is conceded on behalf of the defendant, but the cervical injury is disputed and the alleged depression is said to be nothing more than malingering. The plaintiff gave a dramatic account of his symptoms immediately after the injury, and visibly winced in the witness box whilst giving this account (and at several other stages during his evidence). He was unable to extricate himself from the vehicle without assistance. The plaintiff's son arrived on the scene and took him to the Woden Valley Hospital where he was examined and discharged at about 1.15 a.m. The plaintiff stated in evidence that his symptoms at that stage were "burning" in the neck, dizziness and headaches, blurred vision, with pain in the right shoulder, lumbar spine, heels and neck, the worst pain of all then being the pain in the left calf. There were no cuts or bruises. According to his evidence-in-chief he struggled on at work with the assistance of his sons, losing about 10 days from work only when the business was about to be sold on 14 June 1984. The plaintiff said that his back pain improved somewhat and that it is no longer constant and that the pain in the heels went away a year or so ago. His major complaint at the present time is pain on the left side of the neck radiating into the shoulder but he also complains of pain on the right side also radiating into the shoulder. He describes it as a burning sensation. He still complains of blurring of vision in the right eye, although there is none in the left eye. He said that about six months or more after the accident pain developed in his forearms which he still experiences once or twice a month. The more he was asked about his symptoms the more intense but less definite they appeared to be.

13. The plaintiff also complained of continuing restriction of movement in the neck and when asked to demonstrate in the witness box showed a restriction of movement which was more marked, jerkier, slower and seemingly more painful than the restriction displayed at other times during the course of his evidence. I took particular care to note the plaintiff's range of movement during the whole of the time he was in the witness box. I did not notice any single occasion when the plaintiff appeared to be able to make pain free and unrestricted movement of the neck. In this respect my observation contrasts with that of Dr White who was called for the defendant. According to Dr White, when the plaintiff was distracted he had a full range of neck movement. Dr White had a particular view of what constituted a full range of neck movement which he himself demonstrated, being no more than about 15% in any one direction. I shall return to the medical evidence in a moment.

14. I regard the evidence of the plaintiff's son, Nickos Peris, as of particular importance. My conclusion is that the son was basically a witness of truth, although he tended to be rather vague and voluble. It is possible that in some respects his vagueness tended to favour his father's case but I reject the suggestion which is implicit in the submissions made on behalf of the defendant, that the father and son have conspired to present a false picture to the court. The son gave evidence that when he went to collect his father from the scene of the accident the plaintiff was complaining of neck pain and holding himself in a way consistent with neck pain. Although the hospital records do not disclose any complaint by the plaintiff of neck pain I am not prepared to reject the evidence of the son on this matter.

15. I prefer the evidence of Dr Andrews and Dr Chandran to that of Dr White and to the opinions expressed by Dr Skapinker in a report.

16. The plaintiff's general practitioner was Dr Lai whom he first saw a day or two after the accident. Dr Lai was not called to give evidence but his records were produced to the court on subpoena and inspection was permitted to both sides. I draw no inference favourable or unfavourable to either party from Dr Lai's absence from the witness box or from the fact that neither side tendered Dr Lai's records. The plaintiff was referred by Dr Lai to Dr Colin J. Andrews, an orthopaedic surgeon, and Dr Andrews first saw the plaintiff on or about 28 November 1983. The history and complaints of pain were as the plaintiff stated them in the witness box. X-rays revealed disc degeneration at the C5/6 level, x-rays of other parts of the spine and body being within normal limits. Even at that stage the plaintiff was complaining of what the doctor considered to be secondary vascular tension headaches for which Tryptanol, an anti-depressant, was prescribed. Dr Andrews continued to see the plaintiff and on 5 December 1983 the plaintiff reported an improvement in his neck and headache condition. When Dr Andrews reported to the plaintiff's solicitors on 14 March 1984 the plaintiff had not returned to see him and Dr Andrews was optimistic that there had been a temporary aggravation of a pre-existing asymptomatic disc degeneration at C5/6.

17. The expression of opinion was somewhat premature however for a few days later Dr Andrews reported to Dr Lai that the plaintiff's headaches were persisting as was the pain in the neck for which he was receiving physiotherapy. This time the doctor saw signs of a depression which seem to have "crept into the picture". The symptoms continued however and at the end of June 1984 Dr Andrews noted that the plaintiff had sold his restuarant and had been under "a moderate degree of stress since that time". At 19 August 1985 there was no improvement. Dr Andrews expressed the view then that the plaintiff was moderately disabled, incapable of doing any full-time work, and referred him to Dr Chandran. When last seen by Dr Andrews on 19 October 1986 the plaintiff's complaints of pain in the neck, head and left shoulder were more dramatic and described in terms of jabs occurring regularly, about one a minute. The plaintiff by then was stooped, walking with his neck flexed as if to avoid pain. Dr Andrews then foresaw surgery as a possibility.

18. Dr Chandran, a neuro-surgeon, first examined the plaintiff on 4 October 1985 and then at the request of solicitors on 26 May 1987. The history given was consistent with that given to Dr Andrews and to the court. Dr Chandran's initial opinion was similar to that of Dr Andrews that the plaintiff had sustained an aggravation of degenerative changes in the cervical spine and that the only possibility of further relief appeared to be through surgical fusion.

19. On 26 May 1987 the complaints to Dr Chandran were of more intense pain and pain in more diffused areas. There was however no complaint of pain in the back as such and Dr Chandran found the plaintiff's stooped gait somewhat puzzling. Dr Chandran's opinion was similar to that of Dr Andrews namely that the plaintiff was disabled to the extent of not being able to do any heavy work and was probably not in a position to undertake any type of work on a full-time basis, and that without surgical treatment there would not be any significant improvement in his symptoms.

20. Both Dr Andrews and Dr Chandran were frank in acknowledging that they were dependent to a large extent on the plaintiff's description of his symptoms. The picture that the plaintiff presented to them was that of a man who was certainly incapable of driving for four or five hours without a break or who could "sit up all night playing cards".

21. The defendant's case relied heavily on concessions obtained from the plaintiff during lengthy and searching cross-examination that he was indeed capable for driving for four or five hours at a stretch and that he did from time to time visit clubs where he played cards until four or five o'clock in the morning. Cross-examination on this and other matters went not only to the issue in the case but also to the plaintiff's credit. In his evidence-in-chief the plaintiff had given a somewhat sketchy account of his working career up until the time of the purchase of the business, and when he was cross-examined about this his memory seemed to disintegrate and he could give no coherent account at all. However, the events were many years in the past and the evidence of his son tended to corroborate what the father had said in his evidence-in-chief. I realise that the evidence of the son is of limited probative value because the son did not follow his father each day to see what exactly his father was doing during his absence from home. But the son saw his father leave at a time when it could be inferred that he was leaving for the purpose of going to work. The son saw his father arrive home at a time when it could be inferred that he was arriving home from work. I draw those inferences.

22. It was also put on behalf of the defendant that the plaintiff could have sought to corroborate his account of having worked over the three years or so prior to the purchase of a business as a singer on two or three nights a week in the Peking Restaurant together with irregular casual engagements elsewhere. The owner or part-owner of that restaurant was called in evidence but gave, or sought to give, evidence restricted to the wages paid to waiters. He was not asked anything either in chief or in cross-examination about the plaintiff's prior career, if any, with the Peking Restaurant as a singer. The plaintiff's prior career as a singer however was one of the few areas of the plaintiff's evidence-in-chief which was not subject to cross-examination, although it was argued that the plaintiff's concession during cross-examination that he could not remember anything about where he had worked prior to 1981 should be taken to be a retraction of what he had said in evidence-in-chief. I saw the plaintiff in the witness box, however, and I have considered all the evidence and I do not regard the plaintiff's lapse of memory as having such a drastic effect on his evidence-in-chief on that particular point. I find on the probabilities that the plaintiff did work as a singer in the Peking Restaurant as he claimed in his evidence-in-chief.

23. Nor am I satisfied on the evidence that the plaintiff was in the habit since his injury of staying up all night playing cards. On the contrary I am satisfied simply that he has from time to time visited clubs late at night and on occasions not left until the early hours of the morning. Whilst at the club he has been able to play cards. That reduces substantially the effect of his evidence of constant pain but, in my view, it does not obliterate it. Similarly, I am satisfied that on occasions he has been able to drive for four or five hours but that he by no means does this regularly and I am satisfied on the balance of probabilities that he is not able to do it without discomfort. I think that the plaintiff continues to have cervical pain which is attributable to the aggravation of the degenerative condition brought about by the injury in August 1983. I am of the opinion, further, that his perception of that pain has been aggravated by depression which has been brought about largely by the failure of his business. On the other hand the failure of the business cannot, in my view, be entirely divorced from the effect of the injury.

24. It was quite evident that the plaintiff had very little idea of book-keeping procedures and was not concerned to make himself aware of the true financial state of the restaurant business. The business was purchased in 1981 in partnership with another man. Each of the partners had borrowed about $20,000 from different sources to purchase the business and further sums had been borrowed by the time of the injury in August 1983. A peculiar feature of the case is that the plaintiff seems to have borrowed a substantial amount, about $15,000, from his son Nickos. The son was at that stage only 21 years of age and had been working as a public servant, presumably on a modest salary, for only two years. The son has continued to lend money to the plaintiff over the years, according to his evidence. This does seem to be an unusual state of affairs but in the end I cannot see that anything turns on it. The plaintiff's partner left the business after some time prior to the injury and the plaintiff seems to have borrowed in order to pay the partner to acquire his share and take over the partner's liabilities. The plaintiff did not draw a regular wage or salary. At the beginning, the financial affairs of the business must have been almost in chaos. Eventually the services of an accountant were sought and the accountant, Mr McClean, gave evidence. In the early stages the staff of the restaurant were paid out of the cash takings and it seems that no proper record was kept of this. On Mr McClean's advice, when staff were paid out of cash takings a cheque was written for the appropriate amount and placed with the cash takings so that a semblance of a record was kept. The plaintiff himself drew cash from time to time in this way. He says that he drew about $200 a week but this is far from clear. At the end of the financial years 1982, 1983 and 1984 Mr McClean adopted a procedure of apportioning, as between income and capital repayment, monies which the plaintiff had received from the business. This was a highly artificial procedure and, whilst there does not appear to have been anything dishonest about it, the prime purpose was the minimisation of tax liability. What was apportioned to the plaintiff as income was kept low enough to be under the tax threshold and what was apportioned otherwise was claimed as expenditure by the business. I conclude that no assistance can be drawn from the records of the business or from the evidence relating to takings and expenditure and the like which in anyway reflects the plaintiff's earning capacity either before or after his injury. I think regard has to be had to the fact that the plaintiff was an able bodied man who had shown himself capable of working in a wide variety of occupations prior to 1981 and then after 1981 was industrious in the extreme in trying to set up and maintain a restaurant business. That he was not financially successful is not of course irrelevant but the lack of financial success does not establish that the plaintiff lacked earning capacity. I accept the plaintiff's evidence that he did the buying of the food for the restaurant, some of the cleaning at least in the early stages, the planning of menus, the taking of bookings and carried out a wide range of duties apparently doing everything but the cooking. He employed a chef and at least one other person on each night, and other persons as occasion demanded. However he also had the assistance of his sons and the business was to a very large extent in the nature of a family enterprise. The plaintiff's evidence was that he worked six days and six nights in the restaurant. His wife was an invalid and it appears that the restaurant became virtually a home away from home. It was not quite true, however, as he claimed, that Sunday was the only night that he spent away from the restaurant. The injury which is the subject of the action occurred on a week night when he had been visiting a lady friend with whom he had formed a relationship, and at an hour when, according to him, he was invariably working at the restaurant.

25. The plaintiff must have derived a great deal of enjoyment and satisfaction from the fact that the business had been able to survive for as long as it did. He was a poorly educated and self-made man. It is clear that he had little idea if any of the precarious financial position of the business, and it appears that he believed that as long as he kept working as he was the business would somehow survive and even flourish. It appears to me that this was an over-optimistic view. The business had built up substantial debts at the time of the injury. It is difficult to see how those debts could have been cleared without a very substantial increase in profitability, an increase which in my view was unlikely. When the plaintiff tried to return to work after the injury he was unable to cope with the pressures, although he continued to operate the business until its sale in June 1984. According to the plaintiff in fact he worked right through until about ten days before the sale was completed. On the other hand the son said that the plaintiff lost about two weeks from work immediately after the injury. The son also noticed that the plaintiff appeared to be in pain during that time, that his memory seemed to go and that he was distracted and unable to attend properly to many of the affairs of the business. I think that the son's evidence on this aspect should be accepted. It is after all a likely explanation of the events and in my opinion it is more likely than the explanation proffered by the defendant, namely that the plaintiff took the opportunity of the injury to get out of what he knew was or would have been a financial disaster. I do not think that the plaintiff had achieved that degree of financial sophistication.

26. I think that the ultimate effect has been a shattering one for the plaintiff in that he has lost his self-esteem and now acts out the role of the old and infirm man. To a substantial extent then I think that he has to be regarded as genuine in his perception of disability and pain. That is not to say however that he is not capable of exaggeration and there were several times whilst he was giving evidence when I formed the positive conclusion that his answers were deliberately exaggerated.

27. I am aware that it is in many ways unsatisfactory to have to resolve the questions of importance to the parties on such a broad brush approach but I see no alternative means of resolution.

28. On balance then as far as the past is concerned I think that the plaintiff should be regarded as being totally incapacitated for remunerative work from the time of the sale of the restaurant in June 1984. If he had been sufficiently motivated he could have carried out some light part-time work but on the whole I think that the lack of motivation is itself a result of the injury, the defendant taking the plaintiff as he was to be found. However in order to avoid being over-generous at the expense of the defendant, I think that particular care must be exercised in order not to allow heads of damage to overlap and bearing in mind the allowance for full loss of earning capacity for the past, the award for general damages will have to take into account what I have already said about a certain amount of exaggeration in the plaintiff's description of his symptoms and disabilities. As far as the future is concerned I am more sceptical. I am by no means convinced that as soon as the case is over the plaintiff will recover, because as I have already said I am satisfied that there is some residual effect of the aggravation to the cervical disc degeneration. On the other hand it is the plaintiff who bears the onus of proof and I am not convinced that the plaintiff's present abysmal plight will continue forever. It depends on so many factors, many of them domestic and which do not need dwelling upon. Because of the artificiality, if not impossibility, of fixing a rate of periodic loss, I do not think that this is a case in which it is appropriate to assess the loss of future earning capacity by adopting the recommended method in Todorovic v. Waller [1981] HCA 72; (1981) 150 CLR 402. I merely note that the present value of a loss of one dollar per week for a period of ten years into the future is $452.00. Prior to his purchase of the business the plaintiff had worked in occupations, such as a shop assistant or waiter, which command relatively modest incomes. His engagement as a singer in the few years before 1981 presumably yielded an income, but there was no evidence as to what the income was. Incomes from that sort of activity of course cover a very wide range but there is no reason to conclude that the plaintiff was earning less than what a shop assistant or milk bar attendant would have earned. I propose to use a base figure of about $220 nett per week for past loss of earning capacity, and award a rounded out figure of $44,000.00 total for that head of damage. As far as the future is concerned I award $30,000.00. For past present and future pain and suffering and loss of enjoyment of life I award $30,000.00. I note that the plaintiff said that up till the time of his injury he had been a keen gardener and man-about-the-house, and whilst that might have been the case in earlier years, a matter upon which there was some corroboration from his son, it could not have been true over the years he was engaged working virtually all his waking hours at the restaurant. Nevertheless something has to be given for the likelihood that for some time in the future he will be restricted in gardening activities and activities of that nature. Out-of-pocket expenses are agreed at $1,339.60. Interest is claimed and will be awarded on the past components of loss of earning capacity and general damages, namely $44,000.00 and $20,000.00 at 14 per cent per annum and the total reduced by half. The interested so calculated is $12,412.82 and $5,642.19. Those figures will be added to the damages and there will be judgment for the plaintiff for $123,394.61.

29. A good deal of the time taken for the hearing was concerned with examination and cross-examination of the plaintiff and his accountant concerning the question of loss of profits, but this approach to the calculation of damages was in effect abandoned at the end and, in my view, it had to be. Unless the parties wish to be heard, I propose to order the defendant to pay four-fifths of the plaintiff's costs.