Timothy Donald Pottage v Allan Christopher Ward [1989] ACTSC 20 (27 April 1989)

SUPREME COURT OF THE ACT

TIMOTHY DONALD POTTAGE v. ALLAN CHRISTOPHER WARD
S.C. No. 1260 of 1984
Claim for Damages

COURT

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

CATCHWORDS

Claim for Damages - negligence - assessment of damages - no new question of principle.

HEARING

CANBERRA
27:4:1989

Counsel for the plaintiff Mr. I. Byrne

Solicitors for the plaintiff Livingston & Tantala

Counsel for the defendant Mr. L. Morris, Q.C.

Mr. J. Hartigan

Solicitors for the defendant Abbott Tout Russell Kennedy

ORDER

There be judgment for the plaintiff in the sum of $294,830.00.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff on 17 January 1981. The plaintiff was a pillion passenger on a motorcycle driven by the defendant in a southerly direction along George Bass Drive about 10 or 12 kilometres south of Batemans Bay in the State of New South Wales. I am satisfied that the motorcycle came into collision with a motor vehicle being driven in a northerly direction and that the point of impact was 1-2 feet on what was for the defendant the incorrect side of the road. Negligence was denied on the pleadings but senior counsel for the defendant did not deny that the evidence disclosed a prima facie case of negligence against the defendant. The defendant relied substantially on the defences of voluntary assumption of risk and contributory negligence.

2. The plaintiff's credit as a witness was under heavy attack during the course of the hearing. However, as far as the matters raised in defence are concerned, I am of the firm opinion that the credit of the plaintiff was not so affected by the attack made on him that I should reject his account of what happened on the occasion in question. The only evidence on this aspect was given by the plaintiff himself and by the driver of the oncoming vehicle, Mr. Robert Beattie.

3. The plaintiff gave evidence that he had been injured in a previous motor vehicle collision. The evidence established that that occurred on 16 March 1980 when the plaintiff was aged 22 years. He suffered a punctured lung, concussion and a fracture of the left leg. He was in hospital for seven months. By 7 January 1981 his left leg was still in plaster below the knee and he was walking with the aid of crutches. He lived by himself in a flat at Barton. The plaintiff noticed a man around the flat who had a motorcycle which "was a Yamaha that looked like a Harley Davidson." Because of his interest in motorcycles the plaintiff got talking with this man. He was the defendant. The defendant invited the plaintiff to a party "down the coast". The two men proceeded to Batemans Bay, the plaintiff riding as pillion passenger with his crutches strapped to the cycle. They arrived at Batemans Bay in the late afternoon. They went to a bar at a hotel in the main street. They had one drink together and the plaintiff then went and spoke to "some ladies" with a view to asking one of them to the party. He remained with the ladies for some time. The ladies bought some drinks for the plaintiff but he was not able to say how much he had to drink. He said that he was not intoxicated to the extent that he could not handle his crutches walking down stairs. During the time he was with the ladies the plaintiff did not keep the defendant under observation. After some time the defendant announced that he was leaving and either expressly or impliedly invited the plaintiff to leave with him. The defendant helped the plaintiff to tie the crutches to the cycle and to mount the pillion seat. The plaintiff saw nothing in the defendant's behaviour to indicate that he was under the effect of liquor. They rode off for some distance at a "moderately fast" speed. The last thing the plaintiff remembered before the collision was seeing headlights approaching.

4. The plaintiff was aware that the defendant was sitting at a table during the whole of the time the two men were in the hotel. I draw the conclusion that the plaintiff was on notice that the defendant might drink to the extent that his ability to control the motorcycle might be affected. The plaintiff was somewhat evasive in answering questions about how much he had to consume that night, but I am not convinced that he was more than slightly affected by liquor at the time he left and I am not convinced that he noticed any signs of the defendant being affected by liquor prior to the men resuming their journey on the motorcycle, or from then until the collision.

5. Mr Beattie was called on behalf of the plaintiff. He said that the collision occurred in the early hours of the morning, which leads to a conclusion that the plaintiff and defendant had been in the hotel for several hours. In cross-examination he said that he went to the aid of the rider and pillion passenger on the bike and then gave the following evidence:-

"And you spoke to the driver - or the rider,
the person who appeared to be the driver of
the bike, a man called Allan Ward?--- That is
right.
And he appeared to you to be well affected by
liquor, did he not?--- Well, he was - yes."

6. Mr Beattie was asked no further questions about the condition of the defendant, and he was not asked for the signs or symptoms which led to the conclusion which had been put to him in the cross-examiner's leading question.

7. On this material I am not satisfied that the defendant has discharged the onus of showing that the plaintiff consciously and voluntarily accepted the risk of riding with the defendant when the defendant's ability to control the motorcycle was affected by his consumption of liquor. The defendant, of course, did not give evidence. The only evidence is that of the plaintiff and of Mr. Beattie. I do not know what injuries the defendant sustained in the collision, but it is at least possible that he sustained injuries which gave rise to symptoms similar to those which follow the consumption of liquor. The only evidence relating to the observable condition of the defendant before he assumed control of the motorcycle on the night in question came from the plaintiff. There is nothing in the case to firmly displace the evidence of the plaintiff on this aspect.

8. For similar reasons I find that the defendant has not discharged the onus of proving that the plaintiff failed to take proper care for his own safety. As I have already said, the defendant has not shown that the plaintiff accepted the ride with the defendant knowing that the defendant was likely to be under the influence of liquor. An alternative approach, namely that the plaintiff failed to care for his own safety by allowing himself to be so affected by liquor that he was in no position to observe the defendant's condition, fails essentially for the same reason in that I am not satisfied that the observable condition of the defendant before the commencement of the journey was such that the defendant appeared to be affected by liquor. Whilst I am satisfied that the defendant had been in the hotel for several hours, the evidence does not satisfy me that he had drunk sufficient liquor during that period to become affected. This being so, the extent to which the plaintiff consumed liquor so as to deprive himself of the capacity to observe the condition of the defendant is not really a live issue. The defences of voluntary assumption of risk and contributory negligence therefore fail.

9. I turn now to damages. The history of the litigation has some bearing on this aspect. The statement of claim was issued almost four years after the plaintiff received his injuries. Another year elapsed before the defence was filed on 15 November 1985. A certificate of readiness was not filed until 17 August 1987. The trial commenced on 6 December 1988 and took five days of court time, most of the evidence being directed to the question of damages.

10. The plaintiff was born on 3 August 1957 in Canberra. He was brought up in a strict family of Jehovah's Witnesses. He was unable to tolerate the discipline of either home or school. He left school in December 1971 and left home in April the following year before he turned 15. He has managed to support himself ever since either in employment or from receipt of social security. He was, however, unable to give a clear account of the various jobs he had held. They were mainly in the nature of casual jobs such as working in a circus. He had only ever filed one tax return prior to the accident. Shortly before the accident it appears that the plaintiff was spending the weekends in Canberra and working during the week days with a team of Croatian bricklayers in Sydney. He had been working with them apparently at the time of another accident which he sustained on 16 March 1980. Although the plaintiff claims that he had been in good health prior to the 1980 accident, records from the Royal Canberra Hospital and the Woden Valley Hospital indicate that he had presented himself to doctors at those hospitals on at least three occasions prior to the end of August 1979 complaining of anxiety and depression as well as premature ejaculation and impotence.

11. The collision on 16 March 1980 occurred in circumstances which did not give the plaintiff any right to claim damages. He suffered a severe concussing injury, with a fracture of the left leg and a punctured lung. He was unconscious for three weeks and spent seven months in a hospital. The plaintiff had not resumed employment as at 17 January 1981 when he suffered the injuries the subject of this action. It will be recalled that the lower half of his left leg was still in plaster at that stage.

12. The plaintiff claims to have no memory of the events immediately following the accident and very little memory of what happened over the next few days. However, insofar as it is in issue, I find that the plaintiff was not rendered unconscious by the injury of 17 January 1981.

13. The plaintiff claimed on many occasions in the witness box not to be able to remember matters that in the ordinary course of events he might be expected to have remembered. Brain damage and loss of memory both formed part of his claim as set out in the particulars of injuries and disabilities filed. It was very difficult to assess the plaintiff as a witness of truth. He frequently became very argumentative with counsel, which is not particularly surprising since the cross-examination raised serious allegations against the plaintiff which could not be established on the evidence. For instance, it was suggested that he had told doctors that he was a user of heroin and at one stage engaged in a regular criminal pattern of assault and robbery.

14. The plaintiff has on several occasions been subjected to psychiatric and psychological assessment but some of the medical material is relatively straightforward and I shall deal with that first.

15. Immediately upon his admission to the Royal Canberra Hospital the plaintiff came under the care of Dr John Calder, orthopaedic surgeon. Dr Calder did not give evidence. His three reports cover the period from admission to hospital until 24 September 1984. Dr Calder notes the entry to hospital on 17 January 1981 following a motor vehicle injury the previous day. Dr Calder lists the injuries as follows:-

"....a fracture of the pelvis with separation
of the pubis and ischium and subluxation of
the right sacro-iliac joint resulting in
disruption of the pelvic ring, an anterior
dislocation of the right hip, a contaminated
right thigh wound which penetrated as far
down as the right supra-patellar bursa, a
comminuted fracture of the right tibia, a
fracture of the neck of the right talus with
subluxation of the right sub-talar joint and
a lateral popliteal nerve lesion."

16. On the day of admission Dr Calder performed a closed reduction of the dislocated right hip and after reducing the fracture to the pelvis a frame was fixed to that area. The right thigh wound was cleaned and closed. A fixing device was applied to the right tibial fracture. On 31 January 1981 Dr Calder operated to reduce the fracture to the right talus and to apply a means of internal fixation. On 26 February 1981 Dr Calder removed the external fixing devices and applied plaster to the right leg above the knee. Further plasters were applied from time to time. The plaintiff was discharged from hospital on or about 29 March 1981. On 21 May 1981 Dr Calder removed the pins from the right talus. The tibial fracture was still slightly mobile at that stage and on 6 July 1981 it became obvious that the tibial fracture was not going to unite. On 13 August 1981 Dr Calder performed plating and bone grafting of the right tibial fracture. By 2 November 1981 the fracture was considered to be uniting satisfactorily and the plaster was removed. On 11 March 1982 Dr Calder performed a manipulation of the right ankle to increase the range of movement.

17. It is clear that the plaintiff suffered very severe physical injuries as just outlined. By the middle of 1982 his condition had stabilised to the extent that Dr Calder reported that there was a satisfactory range of movement in the right hip and knee, a marginal diminution of range of movement in dorsi-flexion and plantar-flexion of the right foot, tenderness in the right shin, weakness in the muscles of the right knee probably because of tethering of the tendon in the area of the tibial fracture and significant scarring of the right knee. Dr Calder also reported that although the pelvis was not giving rise to any symptoms the plaintiff was complaining of diminution of sexual function. Even at that stage Dr Calder suggested that osteoarthrosis of the right hip was likely in the long term.

18. When Dr Calder reviewed the plaintiff on 11 April 1983, there was no significant change and the right tibial fracture appeared to have united satisfactorily. Dr Calder considered that the plaintiff was then able to manage light work. On further review on 19 October 1983 the plaintiff was complaining of aching in the right hip. Dr Calder considered this was the beginning of degenerative change in the hip joint which would ultimately require a total hip replacement but not for some 10 or 20 years. When reviewed again in August and September 1984 there was limitation of the right hip and complaints that it had become more painful in the meantime.

19. During the time the plaintiff was being treated by Dr Calder he was referred to the Vocational Rehabilitation Section at the Woden Valley Hospital. He was subjected to investigation for "learning difficulties". He underwent several psychometric tests. The psychologist reported on 9 December 1981 that the plaintiff was "undoubtedly suffering from the post concussive syndrome". The psychologist seems to have been informed of the injury in November 1980, after which the plaintiff was unconscious for three weeks, but not about the injury in January 1981. In any event, the results of the tests were that the plaintiff's memory "performed at a very poor level" and he had "considerable difficulty with tasks requiring complex sequencing and organisation of responses". The psychologist thought that the prognosis for improvement was "quite good" because of the plaintiff's motivation to improve his "well integrated social skills" and his high verbal IQ.

20. The plaintiff commenced a rehabilitation programme on 15 February 1982, but it was terminated on 11 May 1982 because of the plaintiff's irregular attendance and "inappropriate" behaviour. Dr Farnbach, the Director of the Rehabilitation Unit, reported on 13 May 1982 that the plaintiff would not be employable if his attitude and approach were similar to his behaviour in the Unit. Apparently Dr Farnbach was not aware of the prior psychometric assessment, and suggested further studies in order to ascertain the extent of brain damage suffered in "the accident", whichever accident it was.

21. What happened over the next couple of years is not very clear. The plaintiff was referred to Dr Hughes, urologist, at the request of a general practitioner, on 31 May 1982. The plaintiff's complaint was that he had resumed sexual activity about four months previously but was unable to raise or maintain a satisfactory erection. I shall return to this aspect later. Dr Hughes continued to see the plaintiff through 1983 and 1984.

22. On 18 July 1984 Dr Danta, neurologist, saw the plaintiff at the request of another general practitioner. At that stage the plaintiff's complaints were of pain in the right pelvis and right hip region with stiffness in the right ankle when running and walking. The plaintiff gave a history that he had been impotent for 9 to 12 months after the accident and recovered. The main concern was with loss of memory. Dr Danta thought that the orthopaedic injuries had stabilised with continuing pain in the right pelvis and both legs and in particular permanent restriction of movement of the right ankle. Dr Danta considered that the main cause for concern was the difficulty with memory and referred the plaintiff to Mr. Tom Sutton, a clinical psychologist, for assessment.

23. Mr. Sutton, who gave evidence, has seen the plaintiff on several occasions. The plaintiff presented a particular problem for the purposes of psychological assessment. He was rambling and incoherent when first seen at the end of August 1984. He told Mr. Sutton that he was consuming 12 litres of wine per week and complained of lack of concentration, poor memory, self-consciousness and fear and anxiety in social situations. When seen on a later occasion shortly after for the purpose of psychometric testing, however, the plaintiff was better integrated. The results of the tests were difficult to interpret. There appeared to be a gross deterioration from the situation in 1981 and indicated substantial mental retardation on the one hand and high intelligence on the other. Mr. Sutton's interpretation, with which Dr Danta agreed, was that the second accident "heightened a previously existing personality disturbance, or broke down defences associated with holding himself together". Dr Danta suggested psychiatric investigation.

24. The plaintiff was first seen by Dr J. Saboisky, psychiatrist, on or before 21 February 1985, the date on which Dr Saboisky gave his report. Dr Saboisky's view was influenced by the history given to him by the plaintiff of heavy alcohol intake, and frequent use of marijuana. Indeed on one occasion following the first interview and report, when the plaintiff attended Dr Saboisky's rooms with a female friend, Dr Saboisky thought that they were both under the influence of marijuana at that stage and declined to interview the plaintiff. Dr Saboisky came to the conclusion that the plaintiff was fit, in no obvious physical or mental distress, but with remarkably poor memory. Dr Saboisky thought that the results of the psychological tests were inconsistent and could not be explained either in terms of head injury or emotional reaction and that the most likely cause was toxification from drugs or alcohol or both.

25. On 7 November 1985 Mr. Sutton reassessed the plaintiff after a request from his solicitors. At that stage Mr. Sutton had a report from Dr Knox, psychiatrist, which is not in evidence. Again the results of the tests administered by Mr. Sutton gave inconsistent results. The plaintiff was found to be performing at a reduced level. His IQ had dropped to the mentally retarded range and memory was at the level of dementia. Mr. Sutton expressed the view that these results could not be correct because if they were the plaintiff would require institutional care.

26. Between 1986 and 1987 the plaintiff was referred to a number of doctors who furnished reports and gave evidence. It is not necessary to set out all that evidence in detail. Dr Keiller saw the plaintiff on several occasions and reported. When seen on 14 March 1986 the plaintiff's complaints were as they had been to the other doctors. Dr Keiller thought the plaintiff even then was likely to be ready to resume employment of a light nature, apart from psychological difficulties. However by the next occasion on 7 February 1987 the plaintiff was complaining of increasing pain in the hip and the ankle, with a continuous regime of pain-killing tablets. It was also evident to Dr Keiller at this stage that the plaintiff's psychological problems had increased, one additional factor being concern about being "filmed and hounded" by insurance investigators. X-rays at that time of the subtalar joint showed definite signs of degenerative change there and a suggestion of early change in the ankle joint. However when Dr Keiller last saw the plaintiff on 20 May 1988 he thought that the plaintiff had obviously made great progress from a psychological point of view, that there had been an increase in his self respect, that he was showing a marked interest to going back to some worthwhile form of activity. Dr Keiller noted that at that stage the plaintiff was continuing at "the Rehabilitation Centre". Dr Keiller saw no reason why the plaintiff should not return to the workforce in some light capacity in the near future and noted that it would be of great psychological benefit if his long outstanding claim for damages could be resolved.

27. Dr Maguire, a rheumatologist, saw the plaintiff at the request of his solicitors on 27 June 1987. He was particularly concerned with the possibility of early osteoarthritis in the right hip. Because of the plaintiff's continuing complaint about unsatisfactory sexual intercourse he referred the plaintiff back to Dr Danta. When last seen by Dr Maguire on 7 June 1988 the plaintiff's major problems appeared to be right hip pain, right leg weakness and sexual dysfunction. There was increased pain in the right hip in cooler weather and the plaintiff was continuing on medication. He was still finding difficulty with the dropping of the right foot and managed that particular problem by walking with a slightly tilted pelvis. Dr Maguire thought that the symptoms were suggestive of increasing osteoarthritis in the right hip which would require a replacement much earlier than would normally be the case for conventional hip arthroplasties, and that if the plaintiff's gait was not corrected then it could result in spinal curvature and recurrent low back pain.

28. I accept the assessments of Dr Maguire and Dr Keiller and there was little dispute on the physical aspects of the plaintiff's injuries. The plaintiff lives in a small flat, shared at the moment with another young man, and he manages to live on social security payments supplemented by trading in a small way at trash and treasure markets and the like. He says that he has to get his partner to handle the cash side of the transactions, but that is clearly in the face of his assertion, somewhat proudly, of living economically by, for instance, purchasing his clothes in bulk and selling what he does not need for his own use. The plaintiff is also undertaking a silversmith's course which he hopes to complete over the course of the next few years. Despite his complaints to the doctors over a period of time of unsatisfactory sexual relationships, he has had associations with two young women which have not been completely ephemeral, both ladies, curiously enough, known as Cassandra. The plaintiff has a car and driving licence. When he drives to the coast he has to stop at Braidwood for a rest. When he drives to Sydney he has to stop at Berrima likewise. That would not be a matter of great inconvenience in either case. However, he says that his right foot tends to be "planted" on the accelerator, which is consistent with the injury to his ankle and talar joints. He still swims with the assistance of a fin on his left foot. The plaintiff continues on medication prescribed by Dr Maguire.

29. Where there was particular dispute was in relation to the plaintiff's sexual problems, the psychological aspects of his case and the question of possible brain damage resulting from the injury in question.

30. I propose to deal first with the question of brain damage. I am satisfied that although the plaintiff suffered a severe injury to the head in the accident in March 1980, which rendered him unconscious for a period of three weeks, there was no significant head injury in the accident on 17 January 1981. Having seen the plaintiff in the witness box and having considered all the medical evidence, it is my view that the plaintiff has exaggerated the extent of his loss of memory and his inability to operate at an intellectual level. Indeed he presented something of a paradox. He claimed that he recognised that his intellectual ability has suffered, yet he is making a conscious effort to make up for the loss by reading books on psychology. Despite what might have been the case at the time he saw Dr Saboisky, it appears that on the probabilities he has his life fairly well organised at the present time, as I have indicated.

31. Mr. Sutton reassessed the plaintiff in about May 1988 and in his report of 25 May he sets out the plaintiff's recent history and a summary of the results of the latest tests. Mr Sutton makes the point that the results are not consistent with the results of tests in the past or with each other. Certain functions are shown at mentally retarded levels, but there was an improvement on tests relating to literacy. Mr Sutton concludes as follows:-

"This kind of finding, as well as his other
erratic performances, are simply inconsistent
with an organic brain damage syndrome or with
being able to live independently.
I do not think psychiatric disturbance would
produce this cognitive deficit picture unless
he was in a florid state: which he certainly
wasn't at the time of testing.
Overall, I remain with my previous
conclusions: some frontal lobe damage is
likely to have occurred from his first
accident with some form of personality
decompensation occurring along the way. The
frontal lobe deficit is insufficient to
produce the present picture. Given the
unexpected decline in some results and
erratic performance in others I must also
again raise the possibility of conscious
exaggeration playing some part.
The only other explanation is that he is
suffering a progressive dementia totally
unrelated to the accidents: but he is too
young and not showing other symptoms to
warrant this possibility."

32. I accept these conclusions. I note that they appear to be in accordance with the views of Dr Danta. The only evidence to the contrary is that of Dr Saboisky who bases his views on what I consider to be an inaccurate history of alcohol and drug addiction.

33. I conclude that the subject injury did not result in brain damage to the plaintiff, and that the plaintiff has exaggerated this aspect of his case. However in his favour I am prepared to conclude that the accident in question triggered off personality problems which were latent and which were rendered the more likely to emerge by the first injury and whatever degree of brain damage there was involved in that first injury.

34. I deal now with the claim for loss of sexual function. The plaintiff was apparently too embarrassed to press this claim in his evidence and became quite heated when questioned about it even when questioned by his own counsel.

35. Both Dr Hughes and Dr Nugent consider that the loss of sexual potency is organically based and permanent. Both doctors seem to have accepted the plaintiff's complaints on this aspect, and on the whole I think it is reasonable to accept them. The only inconsistency is that on occasions the plaintiff has said that the problem has resolved or was resolving and on other occasions has said that it is continuing. I think that that apparent inconsistency stems from what has been a continuing problem which existed to a lesser extent even before the injury and has been aggravated by the injury, the degree of aggravation fluctuating from time to time.

36. Dr Nugent suggested that an hydraulically powered penile prosthesis might overcome the mechanical disability. The prosthesis would have to be surgically implanted in the scrotum. Dr Nugent said that these devices are becoming popular in the States, but he said nothing about their popularity in the Territory. The plaintiff made no claim in his evidence that he wished to be equipped with such a device, and I make no allowance for its cost. On the other hand, I do not think that the failure to be so equipped amounts to a failure to mitigate damage.

37. Dr Nugent agreed in cross-examination that if the impotence is solely due to nerve damage it would not be expected to fluctuate in intensity but that it is possible for impotence to be aggravated by psychological factors.

38. I think that the plaintiff probably suffered from total impotence for a period of about a year or so, having regard to the pelvic fracture and the gross nature of his injuries overall. However, it had stabilised by early 1982 and has fluctuated from time to time depending on psychological factors. Although the plaintiff told Dr Hughes that it was "no problem" by August 1982, the doctor also noticed that potency was gradually returning, an indication that there had not been full recovery. Dr Danta thought that the condition was serious enough to refer the plaintiff to Dr Nugent. I think that the plaintiff's injury has made it more difficult for him to have satisfactory sexual relationships and whilst it must be borne in mind that even without the accident such relationships were never likely to be particularly smooth, it is a matter which resounds in general damages.

39. I accept that the plaintiff's physical injuries, imposed upon a person who was susceptible to emotional and personal difficulties, have resulted in a degree of what might be called anxiety and depression but, as I have already said, the plaintiff seemed to have come to terms with his injuries in recent times. The end of litigation may assist him to take a more positive attitude to the future, but I do not think this is a very important factor as he has lived with his injuries for so long now. Dr Tennant, psychiatrist, has been treating and counselling the plaintiff for some time and considers that he has a degree of paranoia. I do not think that this amounts to more than an understandable reaction to the knowledge, unchallenged, that he is under surveillance from insurance agents. That aspect of the case may well resolve after the hearing. However Dr Tennant's view that the plaintiff suffers "quite severe sexual problems" and brain damage resulting in memory and concentration problems and emotional lability cannot stand with the rest of the evidence. I think that Dr Tennant takes far too pessimistic a view when she says that "he is unable to work due to his anxiety, paranoia, brain damage and physical injuries". What I think is correct, and indeed what the doctor may mean, is that the plaintiff will not be a suitable candidate for employment in the conventional sense, working regular hours five days a week.

40. It remains to convert these findings into dollars and cents.

41. I deal first with past loss of earning capacity. I find that the plaintiff was totally disabled for all forms of work until some time after he commenced and abandoned the rehabilitation course at Woden Valley Hospital. The net earnings of a bricklayer's labourer during that period were about $275 per week. The plaintiff's case was that although unemployed he would have resumed that sort of work by the end of March 1981. I allow for 18 months total incapacity from March 1981 to September 1982 and reduce the figure by half because of the likelihood that the plaintiff would have worked only about half the time anyway. The result is $10,000 for that period. From September 1982 to date the average weekly wage for a bricklayer's labourer was about $370 per week net. During that period the plaintiff recovered his present earning capacity and I allow on the basis of an average loss of earning capacity of $325 per week. As against that I allow again for the contingency that the plaintiff would probably not have worked for substantial periods (about a third of the time) even if he had not been injured. The result is $65,000 for the period September 1982 to date and a total for past loss of earning capacity of $75,000. I do not think this figure needs to be further discounted.

42. For future loss of earning capacity I take as a basis the rate payable to a bricklayer's labourer of about $370 per week net. The plaintiff is clearly not fit for that sort of work and never will be. Indeed, in my view, because of his behavioural patterns he is not suitable for any form of conventional full-time employment. However, he is capable of income-generating activity such as conducting a market stall, restoring old cars, and silversmith work, activities which are neither intellectually nor physically demanding or stressful. I think that he has a residual earning capacity of about $100-$150 per week which, measured against his pre-injury capacity to work as a bricklayer's labourer, points to a continuing loss of some $250-$300 per week. For the purpose of assessing the present value of that continuing loss I proceed on the hypothesis that the loss would have continued to age 65, I capitalise the loss at a discount rate of 3% and I reduce the figure so calculated by a contingency factor of one third. That factor takes into account the ordinary vicissitudes of life, the likelihood that the plaintiff would have taken up employment more frequently and for longer periods as he grew older (but would never have settled down to regular full time employment anyway), the susceptibility of the plaintiff to emotional and psychological disturbance particularly as a result of his earlier head injury on 16 March 1980, and lastly the speculative factor of the continuing effect of injuries received on that earlier date. On that basis I allow $150,000 for loss of future earning capacity.

43. The plaintiff's case would in principle support a claim for continuing pharmaceutical expenses and in the absence of any precise evidence on this aspect I award a nominal sum of $1,000 under this head. For past out-of-pocket expenses I have been informed that the defendant has paid on the plaintiff's behalf the sum of $18,830 and that a further sum of $3,739 remains unpaid. Again I am not provided with any details on these matters. However, if the defendant has paid certain expenses on behalf of the plaintiff, then it is up to the defendant to now show that the defendant was not liable to make such payment and the defendant not having done so I think it appropriate to award the sum of $18,830 for out-of-pocket expenses. As to the remainder of $3,739, the plaintiff bears the onus and it has not been discharged.

44. I award $50,000 for pain and suffering and loss of enjoyment of life.

45. In summary the award of damages is as follows:-

Pain and suffering $ 50,000
Past loss of earning capacity $ 75,000
Future loss of earning capacity $150,000
Future out-of-pocket expenses $ 1,000
Past out-of-pocket expenses $ 18,830
Total $294,830

46. As a global figure the total of damages appears proper. Unless the parties wish to be heard I propose to order that the defendant bear the plaintiff's costs.