Steven Peter Dascarolis v Cecil Clyde Carr [1988] ACTSC 30 (2 June 1988)

SUPREME COURT OF THE ACT

STEVEN PETER DASCAROLIS v CECIL CLYDE CARR
S.C. No. 1356 of 1985
Negligence - Damages

COURT

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

CATCHWORDS

Negligence - motor vehicle accident - plaintiff's motorcycle collided with defendant's truck - question of contributory negligence - whether plaintiff kept a proper lookout - no new matter of principle.

Damages - multiple serious injuries particularly to legs and face - plaintiff electrical contractor - problem of assessing loss of earning capacity when substantial possibility of plaintiff achieving his desire of going into business for himself if not for accident - no new matter of principle.

HEARING

CANBERRA
2:6:1988

ORDER

There be judgment for the plaintiff in the sum of $240,966.35.

The defendant pay the plaintiff's costs.

DECISION

This is an action for personal injuries sustained by the plaintiff on 2 November 1983 when the motorcycle upon which the plaintiff was riding collided with a truck driven by the defendant in Ipswich Street, Fyshwick. The plaintiff's motorcycle was a 1300 Harley Davidson, described variously in evidence, but apparently the most powerful and the heaviest model produced by the manufacturer at the time. The truck driven by the defendant was a 3-ton Mitsubishi used in connection with carting materials for roadmaking and road repair.

2. The plaintiff has no memory of the collision because of post traumatic amnesia. The defendant did not give evidence. However, there was evidence from a number of other drivers in the vicinity and the primary facts are not greatly in issue. The plaintiff was working as an electrical sub-contractor based at Fyshwick. He had during the course of the morning attended a work site in the Weston Creek area and was on his way back to Fyshwick. His route took him along Hindmarsh Drive and across the intersection with Canberra Avenue into Ipswich Street. The case was run on the basis that Hindmarsh Drive and Ipswich Street run in a north-south direction and Canberra Avenue runs in an east-west direction. Ipswich Street is virtually a continuation of Hindmarsh Drive for vehicles proceeding northwards. Normally the plaintiff's journey would have taken him from the Canberra Avenue intersection to the northern end of Ipswich Street, about a kilometre from the intersection. The plaintiff was closely cross-examined as to the situation regarding his motorcycle. It was not a new motorcycle, but he had recently had a new engine installed and the engine was still running in at the time of the collision. The plaintiff maintained that during this period of running in it would have been inadvisable and it was not his practice to cause the engine to run at a very high speed, and that in particular it would have been inappropriate to proceed in second gear at a speed of more than about sixty kilometres per hour. The plaintiff denied many times in cross-examination that it would have been appropriate to subject the engine to short bursts at high speed. The cycle was not equipped with mufflers, but the plaintiff explained that this was not because he wished to gain greater power from the engine but simply because he wanted, for some reason, to make it noiser. I accept the plaintiff's evidence.

3. There were numerous photographs in evidence taken shortly after the incident. There is also a detailed plan, although not to scale, drawn by police. I also had the advantage of a view. Ipswich Street is divided by a broken line on the bitumen surface separating northbound and southbound traffic. For northbound traffic there are two lanes each separated by a broken white line. The width of each of the lanes appears to be about 3.7 metres. I refer to these as the nearside lane and the middle lane. In the region of where the collision occurred there is on the western side of the bitumen a wide area of gravel surface large enough for the parking of vehicles. For vehicles proceeding north from the intersection with Canberra Avenue, there is a rise for about fifty metres to a crest (also referred to in the evidence as "a hump"). The road surface is then level for some further two hundred metres to the region of the collision. The rise to the crest is such that a person on a motorcycle or a sedan is not able to see beyond it whilst in the intersection. I am unable to conclude on the evidence how close to the crest a motorcyclist would have to be before he was able to see beyond it. I do conclude, however, that the motorcyclist would be in a position to see beyond the crest at some stage before he reached the crest itself, because the evidence is that the driver of a truck sitting at about one metre higher than the rider of a motorcycle on the southern side of the intersection was able to see beyond the crest at all times.

4. On the day in question roadworks were in progress on the western side of Ipswich Street. Part of the nearside lane was closed off for traffic by a number of plastic marker cones or "witch's hats" which were placed on the roadway more or less in a line leading northwards and extending from the western most edge of the bitumen out almost to the broken line separating the nearside lane from the middle lane. At the southern most end of the line of marker cones was a sign bearing the words "Roadwork Ahead". That sign was about eighty metres north from the crest above referred to. About ten metres north from the sign just mentioned was another sign on the road surface bearing the words, "Half Road Closed". The signs faced northbound traffic. The marker cones extended for at least fifty metres. In the area of road surface effectively closed off by the marker cones there was another truck, stationary, under the control of Mr. Gregory John Peterson.

5. A Mr. Causon, a driver of a ready-mix concrete truck, gave evidence that he was stationary at the traffic control lights in the middle lane at the intersection in Hindmarsh Drive waiting to proceed north into Ipswich Street. He noticed the plaintiff stationary beside his vehicle on the left in the nearside lane. Because of the height of the seat in his truck, Mr. Causon was able to see well up into Ipswich Street beyond the crest. When the lights changed, Mr. Causon's truck moved off as did the plaintiff's motorcycle. The witness formed the view that the motorcycle was not travelling at an excessive speed, but it obviously drew away from his truck. When the motorcycle was about thirty to fifty metres ahead of the truck, Mr. Causon saw it move out from the nearside lane into the middle lane. At the same time he saw the defendant's truck move out across the path of the plaintiff. At this stage the defendant's truck was some forty to sixty metres distant from the plaintiff's motorcycle. Mr. Causon saw no indicator light from the truck. There was no change in the speed of the motorcycle until it was just a few metres from the defendant's truck. The path of the motorcycle was such that it appeared to Mr. Causon to be proceeding as if to go around the front of the truck. When the front of the truck was almost on the centre line, the front wheel of the motorcycle struck the right-hand front wheel of the defendant's truck.

6. Another truck driver, Mr. Mark Robert Scholze, who was proceeding south in Ipswich Street, gave evidence of what he saw when he was stationary at the intersection facing south and waiting to turn right into Canberra Avenue. He saw the plaintiff move off when the lights turned green, proceed through the intersection and pass his truck at about sixty kilomentres per hour loudly in second gear. He had some experience with motorcycles.

7. Mr. Peterson, the driver of the stationary truck in the closed off lane, gave evidence on behalf of the defendant. He said that he was on the roadway about to get into his vehicle on the driver's side when he saw the plaintiff's motorcycle approaching as it passed from the nearside lane into the middle lane near where the marker cones commenced. He stepped back and as the motorcycle passed him, he estimated his speed at sixty miles per hour. He was cross-examined on previous statements that he had made in proceedings in Magistrates Courts and it is clear that he was confused between miles per hour and kilometres per hour. His assessment of speed is, in my view, quite unacceptable. However, I do accept that the speed and passage of the plaintiff's vehicle was such that Mr. Peterson had cause to watch it as it passed him and that his observation of its course was accurately recounted in evidence. As the cycle passed or was about to pass him he noticed that the vehicle driven by the defendant was pulling out from the nearside lane at or near the northern most end of the marker cones. The defendant's vehicle proceeded slowly, at not much more than a walking pace and proceeded out towards the middle of the road and kept proceeding as if to go across to the other side of the road. Mr. Peterson observed the path of the plaintiff's motorcycle to be as if it was about to go in front of the defendant's truck but then he observed the cycle swerve back to the left. The plaintiff appeared to lay the bike on its side and it struck the rear of the front wheel on the driver's side with considerable force.

8. The defendant did not give evidence and that means that I may the more readily draw inferences adverse to him. He made a statement to police soon afterwards in which he stated that he had moved off from a loading point in Ipswich Street in a northerly direction, then signalled his attention to move into the lane on his right, then ascertained to the best of his ability that the road was clear and continued to move into that lane. He said that "seconds prior to the completion of the turn there was a collision" and added "I didn't see this, I just know something hit me". He went on to say that the truck finished up in a driveway of a Shell Service Station on the eastern side of Ipswich Street. When questioned as to where he intended to go after moving onto the roadway, he stated that he had not decided, that he had two options, one was to move across and turn through the service station, but the more likely possibility was that he would have gone on to the intersection with the next street to the north, Wiluna Street, and turned right there. He claimed that as he moved into the middle lane it appeared to him safe to do so because there was no traffic to be seen in either direction and at the time of the impact he was "a little off straight to the right". This latter statement on the part of the defendant is, I think, consistent with the rest of the evidence that the defendant's truck was proceeding at not much less than a right angle across Ipswich Street immediately prior to the collision. The rest of the statement by the defendant, which is not inconsistent with the course of his vehicle, was that he intended to eventually proceed south in Ipswich Street.

9. The damage to the mudguard and wheel of the defendant's vehicle lends support to the allegation of high speed on the part of the plaintiff. However, overall, the defendant's statement to the police indicated that he did not see the plaintiff's vehicle at any relevant time. His failure to see the plaintiff's cycle may have been initially due to it being obscured by Mr. Peterson's parked truck. However, the defendant should have been aware of that obstruction to his vision and of the fact that northbound traffic was being channelled into the middle lane. He was driving a large vehicle which lacked much manoeuvrability and was proceeding at a slow speed into the lane into which traffic which he could not see would be channelled. He did not check as to northbound traffic after the initial observation in his rear vision mirror. The angle at which he drew across to the centre of the road meant that the rear vision mirrors were of little assistance, but it would not have been difficult for him to look back and to his right. He suggested that he intended to cross into the service station but, according to my observation, the point of impact was about fifteen to twenty metres south of the driveway into the service station. The evidence is also suggestive of an intention to make a U-turn. However, whatever the defendant's ultimate intention and destination, there was a failure on the part of the defendant to pull out with safety and a failure, in my view, to keep a proper lookout and there must be a finding of negligence on the part of the defendant.

10. The question of contributory negligence is somewhat more difficult. It is impossible to come to any firm conclusion as to the exact speed of the plaintiff's motorcycle at the time of the collision, but there is no reason to suppose that it was appreciably less than sixty kilometres per hour, which was the speed limit. If the plaintiff was still in second gear it is not likely that the speed would have been much more than sixty kilometres per hour. On the other hand, however, the cycle was observed to be in second gear as it passed through the intersection, and it is, in my view, unlikely that it would have remained in second gear for the whole of the three hundred metres or so from the intersection to the point of impact. I am unable to conclude that the speed was appreciably more than sixty kilometres per hour. If the plaintiff had been keeping a proper lookout the speed may have been a safe speed, but the evidence convinces me that the plaintiff did not become aware of the precise danger presented by the defendant's truck until it was too late to take effective action to avoid a collision, for he failed to reduce his speed until just a few metres from the defendant's vehicle. Mr. Peterson's evidence, which I accept on the point, was that there was sufficient space for the plaintiff's cycle to have passed by the rear of the defendant's truck if it had not initially proceeded as if to go round in front of the defendant's truck. The observations of the witnesses of the course of the plaintiff's cycle, confirmed by the skid mark and gouge marks on the road surface, all suggest a failure to keep a proper lookout. I am not convinced, however, that that failure in the circumstances or the speed of the plaintiff's cycle was such that either or both should be regarded as the major contributing cause of the collision. As I have already said, the defendant presented what was a major obstacle to any vehicles which were proceeding in Ipswich Street, more particularly for those proceeding northward in what would have normally been two lanes, reduced at the time to one lane. In that situation the defendant should have been particularly careful to check for northbound traffic and he was not. Although there was a failure on the part of the plaintiff to take reasonable care for his own safety, it is not appropriate to apportion fault to the plaintiff to a substantial extent. In all the circumstances I think it just and equitable to reduce the plaintiff's damages by ten percent for contributory negligence.

11. I turn now to the question of damages.

12. It is not disputed that the plaintiff suffered very serious, painful and disabling injuries. There were compound comminuted fractures of the mid-shaft of the tibia in both legs, somewhat more serious in the right leg. There was a dislocation of the left foot with multiple fractures of the tarsometatarsal joints and skin loss. The plaintiff's face was badly injured with a fractured mandible on the left-hand side, a fracture of the maxilla and a depressed fracture of the left zygoma with nerve involvement around the left eye, together with multiple bruising and lacerations of other parts of the face. In the groin area there was a separation of the pubic bone, a tearing of the scrotum, a rupture of the left testis, a dislocation of the right testis. He also suffered a closed fracture of the midshaft of the left radius and ulna. There is an issue as to whether the accident resulted in spinal injury.

13. The plaintiff was operated upon on the day of his admission to Royal Canberra Hospital. Dr McNicol secured the right tibia with screws and a plate and attempted to repair a large area of skin loss. The dislocation in the foot was reduced and held with wires and the wound left open. The fracture to the left tibia was held in place by a slab. The fractures to the left radius and ulna also had to be treated by fixation with plates. Dr Peter Brown, a plastic surgeon, operated upon the face by extracting a lower tooth on the left, reducing and fixing the fracture of the mandible and the maxilla and holding the fractures in place by wiring. Dr Heap repaired the tear to the scrotum and repositioned the testes.

14. During the first two weeks or so the plaintiff remained in a very serious condition. The injuries to his face were such that he was barely recognizable to his family. Apart from retrograde amnesia, he has only a vague recollection of the first two weeks or so, except that he was in great generalised pain during that period. For eight weeks he was able to take food only through a straw because of the wiring to the jaw. He remained in hospital until 6 January 1984, apart from a few days at home over the Christmas period. During that time he received further operative treatment. On 12 November 1983 split skin grafts were applied to his right leg and left foot and on 30 December 1983 the fracture of the midshaft of the right tibia was re-operated on.

15. Over the next two or three months the plaintiff was attended by his mother, having returned to his parents' home at O'Malley. She reduced her work in a family business for this purpose during the day. During the evening and at weekends the plaintiff was attended by his fiance. He has since married.

16. The plaintiff returned to hospital for four days for the purpose of the removal of the wires from the left foot on 9 March 1984. His leg appears to have been in plaster until about then. About a year later he returned to hospital for a similar period for removal of the screws in the right tibia and left radius and ulna. In the meantime it was noted that the facial injury had resulted in a drooping of the left eyelid and this was corrected when the plaintiff was re-admitted to hospital for four days on 3 July 1984. The injury to the cranial nerve, however, was such that the drooping could not be completely corrected and the plaintiff continued to suffer from some double vision. On 14 June 1985 Dr Brown operated to repair the left obital floor with an implant of silastic sheets. This resulted in an improvement of the double vision.

17. The last occasion on which the plaintiff entered hospital was for a discogram in September 1985.

18. The plaintiff was born on 18 October 1958 and educated to Higher School Certificate level in the Canberra area. He served an apprenticeship as an electrical mechanic and obtained a certificate from the Bruce TAFE. He then followed a variety of jobs, apparently with the intention of gaining general experience, for a period of two and a half years and then went overseas for three months. Upon his return he worked as a photocopy machine technician for eighteen months. At the age of 25 years in September 1983 he obtained a tradesman's certificate as an electrical mechanic. He still had to obtain an A-Grade electrician's licence before he could take up electrical contracting and had started to make preparations for the examination prior to the injury. In the meantime he had started sub-contracting in a general way to a firm engaged in irrigation services. It was whilst he was doing that sub-contracting work that he met with his injury.

19. The plaintiff was by and large an impressive witness and his evidence was largely supported by the evidence of witnesses. He has through a positive attitude on his own part made a comparatively good recovery from very serious injuries. There is little dispute on the medical issues, and the major area of contention relates to the assessment of damages for pain and suffering and loss of enjoyment of life and for past and future economic loss. The latter assessment depends on coming to some informed conclusion as to what the plaintiff's earning capacity would have been if he had not been injured, compared with what it has been to date and is likely to be in the future. I think that the plaintiff's earning capacity to date is more or less accurately reflected in what he has been able to earn. He has tried to get back into the workforce and has made a moderate success of it given his disabilities. The difficulty in assessing the value of his loss of earning capacity is that there was a substantial possibility that he would have achieved his desire to go into business on his own account if he had not been injured, and that for part of the time since the injury he has in fact been carrying on business on his own account, in effect sharing what work he has been unable to carry out. There was a great deal of evidence about the earnings of other electrical contractors in the Canberra area. All of the evidence was of course relevant, but after careful consideration of it all, I find it possible in the end to assess the value of loss of earning capactiy only in a very general way.

20. The plaintiff was first able to get back to work on 14 July 1984 when he was employed as a manager of a suburban indoor sports centre. The work came to an end when the business changed hands. The plaintiff then almost immediately took a job driving a ride-on lawn-mower at Parliament House, but he was able to last at that work only for about a month because the vibration of the machine caused pain in his right leg in particular, but also aggravated his back condition which was beginning to cause trouble. On 12 October 1984 he commenced work as a sub-contractor electrician on a part-time basis with a Mr. Borris Schneider, who was in partnership (through a limited company) as an electrical contractor with Mr. Kerry White. The plaintiff had an understanding relationship with Mr. Schneider, who gave him, in effect, whatever work he felt able to do. This amounted to about four to eight hours a day, two to three days a week. When the work was heavy or when he was required to work in confined spaces, the plaintiff sometimes would have to take a day or two off work thereafter because of the pain in his back and his legs. He sought lighter work by applying to Telecom for a position as an assistant technician, but he failed to meet the medical standards. He obtained a taxi driver's licence and in September 1985 commenced to drive a taxi, but that job was too strenuous because of the pain in his back and legs.

21. The plaintiff married on 25 November 1984. He persisted in his efforts to improve his earning capacity. He worked towards and obtained a full electrical contractor's licence on 12 May 1986. Since then he has built up a small business in the lighter side of electrical contracting, mainly connected with maintenance electrical work rather than electrical work on building sites. He has some regular customers such as L.J. Hooker. To the extent that he is not able to do all the work for which he contracts, he shares it with another electrician, Mr. Ritchie.

22. The plaintiff's major complaints now relate to his lower back and his left foot, but he still gets pain in the right leg after activity and the gross scarring in the area is still tender and tends to break down. He has the use of an orthosis for the right leg. For the left leg he has the use of a small orthosis, which fits on the left foot.

23. Although these are the major areas of disability, the plaintiff still has other substantial reminders of the injuries he suffered. The extent to which his face took a battering is clearly shown in the photographs comprising exhibit R, revealing him to be a conventionally good-looking young man some months prior to his injury, contrasted with an after-injury photograph, appearing to have substantially aged with a weather-beaten face and a permanently drooping left eye.

24. For the first few weeks and indeed months after the injury the plaintiff was in extreme pain. He made substantial efforts to cope with the situation. When he was initially discharged he managed to get around the house by paddling along on a skateboard. To some extent, however, he has not come to terms with the aftermath of his injuries and has, according to the evidence, not "acted out the anger that he feels within". This exhibited itself for some time in 1984 as depression. The plaintiff still sleeps badly. He continues to suffer from diplopia. His eyes are sensitive to light and, according to Dr Shanahan, there is a twenty percent overall loss of function in the eyes.

25. Photographs show substantial scarring to the left forearm and to the right lower leg and left lower leg and knee.

26. According to the plaintiff's evidence, he suffered from pain in the lower back shortly after the accident which radiated down the buttock and the right leg. This pain was aggravated upon his resumption of work in 1984, and he seems to have made no complaint to any of the doctors until then. However, I accept the plaintiff's evidence on this aspect. Dr McNicol felt that back pain may have been masked during the earlier months by the more obvious and painful injuries, and having regard to the extremely violent attack upon the plaintiff's body at the time of the injury, it seems that there is no explanation for the plaintiff's back symptoms except the subject injury. There is no evidence of any pre-existing degenerative condition in the spine which was likely to have given rise to spontaneous back trouble.

27. Dr McNicol is of the view that the pain in the plaintiff's foot will increase especially if he continues, as I think he is likely to do, to work on his feet. The possibility of a fusion operation being required for the left foot is a real one. If the operation is not carried out successfully, then the likelihood of arthritis in the area is increased. Although I do not recollect the plaintiff saying so in his evidence, according to Dr Jones, a rehabilitation specialist, the plaintiff told him that he was continuing to take pain-killers several times a day. Dr Jones saw him on 29 July 1987 and I would think it likely that the plaintiff continues to take some form of medication from time to time.

28. In addition to the physical injuries, depression and sequelae of the cosmetic deformity to which I have already referred, there was also the initial excruciating pain of the injuries in the groin area which fortunately resolved before the plaintiff married. The plaintiff's fertility has not been reduced and he and his wife hope to have children. Nevertheless, sexual intercourse has been rendered the more difficult for him because of a certain amount of anxiety connected with his groin injuries, and also because of pain, the exact locus of which was not made precise but which I think is nonetheless real. The plaintiff has been very irritable during the course of the marriage, largely because of frustration with his own inability to do everything that he wants to do, but his wife appears to be particularly understanding and it was not suggested that the plaintiff's marriage was at risk. His wife is in permanent employment as a public servant, although she has helped him from time to time on some of his contracting jobs.

29. The plaintiff also finds that he is forgetful about details and this is supported by evidence of a psychologist that there is "significant reduction from pre-morbid levels of functioning". Dr Corry, a rehabilitation specialist, has cast doubt upon the plaintiff's ability to be retrained for some more sedentary type of occupation because of the likelihood of some slight degree of brain damage in the accident. This is supported also by Dr Jones. Dr Shanahan suggests that the loss of the normal function of the eyes has affected the plaintiff's capacity for certain ball games and occupations. Nevertheless, the plaintiff drives a utility vehicle during the course of his business and he is licensed for motorcycles, taxis, trucks and forklifts.

30. The plaintiff was very active physically before his injury and this has been significantly but not completely curtailed by the accident. He is no longer able to run or jog or water-ski, but he can, for instance, still dance and ride a bicycle. In fact he and his wife cycle regularly at weekends, but after about twenty kilometres or so the plaintiff is in pain. He can no longer carry out a full range of gym activities but can still do press-ups.

31. The plaintiff comes from a family which has been successful in business. The plaintiff stated that it was always his ambition to qualify as an electrical tradesman and eventually go into business on his own by the time he was in his forties. He had not settled down to pursuing these aims at the time of his injuries. Nevertheless, he was engaged to be married, he did in fact marry about a year after the injury and soon after that obtained his tradesman's certificate. Mr. Ritchie and Mr. Schneider were contempories of his at the TAFE college and their working histories and earnings were relied upon as a guide to what the plaintiff might have earned had he not been injured. Mr. Schneider carries on business through a company which he operates with a colleague, Mr. Kerry James White. I do not think that the figures relating to the turnover of the company and the amounts paid to the directors are of great assistance. It seems that the company is organized in such a way that Mr. Schneider and Mr. White and their respective wives draw weekly amounts, and that Mr. Schneider and Mr. White also receive director's fees and the benefits of company contributions to a superannuation scheme, vehicle allowance, phone bills, electricity bills and vehicle running costs. Mr. White receives a gross amount of $410 per week and his wife $328 per week. This would seem to me indicative that the wife is not merely a nominal member or employee of the company but takes part in the actual day to day working. On the other hand, Mr. Schneider draws $505 gross per week and his wife $106 per week. Other figures supplied indicate that Mr. Schneider is earning at the present time a gross amount of $33,765 per annum or about $675 gross per week. I think that that could be taken as the top of the range which the plaintiff might have expected to be earning by now if he had not been injured. On the other hand, the earnings of Mr. Ritchie are not as high and it may be that he is less ambitious or less industrious or competent in his income earning activity. In any event, Mr. Schneider's earnings have grown considerably in the last two years or so whereas Mr. Ritchie's earnings have been more or less constant over the period of four years or so since the plaintiff's injury. From the date of injury to 14 July 1984 the plaintiff was not in employment but he received $3,712 by way of unemployment benefits. During this period Mr. Ritchie earned about $300 per week net and Mr. Schneider earned about $190 per week net. I would estimate the plaintiff's loss during this period at $180 net per week and the total for the period would be $6,480. From 14 July 1984 to 12 October 1984 the plaintiff worked as the supervisor of an indoor sports centre and lawn mower operator and I am not satisfied that there was any actual loss of earnings during this period. From 13 October 1984 to date he has worked as an electrical contractor on his own account. His tax returns indicate that until 30 June 1985 his gross takings barely exceeded his outgoings, so that net weekly earnings were about $23. Mr. Ritchie's net weekly earnings were about $300 and Mr. Schneider's about $220, the average between them being about $260 per week. I therefore quantify the plaintiff's loss during this period from 13 October 1984 to 30 June 1985 at $237 per week, a total of $8,769 for the period. For the next twelve months the plaintiff's income tax returns indicate that his weekly earnings after outgoings were about $27 per week. Those of Mr. Ritchie had dropped to about $284 per week and those of Mr. Schneider had risen to about $380 per week, averaging between them about $330 net per week, a loss to the plaintiff of about $303 per week or about $15,700 for the year. In the following financial year, however, the plaintiff's earnings had risen to about $195 per week net so that his loss during that year was reduced to about $35 per week, making a total of $1,820 for the year. From 1 July 1987 to the date of hearing the plaintiff's average weekly earnings were about $200 net. Those of Mr. Ritchie were about $300 and Mr. Schneider $380, making an average of about $340 between them and a weekly loss to the plaintiff of about $140, making a total for the 19 weeks to the hearing from 1 July 1987 of $2,660. This makes a total for past loss of $31,717 after allowing for unemployment benefits. There has been no mention of worker's compensation and I presume that this is because the plaintiff was working as a sub-contractor at the time of his injury.

32. For the future I take the plaintiff's loss to be $140 per week which should be allowed for a period of nineteen years taking him to age 45 years. On the three percent tables this gives a sum of about $106,000 which I see no reason to discount by more or less than the conventional factor of fifteen percent to $90,000. For the period of ten years or so beyond the age of 55, I think it appropriate to add a further sum which will act as a buffer rather than as an attempt to accurately assess the present value of a periodic loss of earning capacity. There was a likelihood without injury that the plaintiff would have gone into business on his own account in his mid-forties, but it is impossible to predict here and now what the profitability of his business activities might have been. There is also a strong possibility that given the capital backing that will be provided by a substantial award of damages, he will still be able to go into business on his own account and rely to a substantial extent on employees or sub-contracted labour. On the other hand, I take into account that his business ability is probably affected to a degree by the injuries he received and in the light of the medical evidence to which I have referred. I am not convinced on the probabilities that the plaintiff has shown that there will be a loss of earning capacity attributable to his injury beyond the age of 55 years. For the ten years beyond age 45 I award $40,000. The sum total then for future loss of earning capacity is $130,000.

33. For pain and suffering and loss of enjoyment of life and ongoing expenses such as pharmaceutical and replacement of orthosis I award the sum of $60,000 as to which I award one half for the past. Out-of-pocket expenses are agreed at $23,222.35. The Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 aspect has been agreed at $3,000. There is no Fox v. Wood component.

34. The total amount of damages awarded on this basis is $247,939.35, which appears to me to be an appropriate award as a whole.

35. Interest will be notionally awarded on past pain and suffering at the rate of fourteen percent and the result reduced by half, giving a figure of $9,625. Interest will also be calculated notionally on the award for past loss of earning capacity of $31,717 and the result reduced by half, that calculation being $10,176.

36. The plaintiff is to have judgment for the damages and interest less ten percent for contributory negligence. In summary the figures are as follows:

Pain and suffering and loss of enjoyment

of life $ 60,000.00

Past loss of earning capacity $ 31,717.00

Future loss of earning capacity $130,000.00

Out-of-pocket expenses $ 23,222.35

Griffiths v. Kerkemeyer $ 3,000.00

Interest $ 19,801.00

Total:<$267,740.35
Less 10 percent:<-$ 26,774.00

$240,966.35

37. I direct the entry of judgment for $240,966.35. Unless the parties wish to be heard, I propose to order the defendant to pay the plaintiff's costs.