Antonio Celestino v Rocco Celestino and Adore (Celestino) Investments Pty Limited [1990] ACTSC 1 (5 January 1990)

SUPREME COURT OF THE ACT

ANTONIO CELESTINO v. ROCCO CELESTINO and ADORE (CELESTINO)
INVESTMENTS PTY LIMITED
S.C. No. 1298 of 1981
Claim for Damages

COURT

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

CATCHWORDS

Claim for Damages - Motor vehicle accident - Negligence - No new question of principle

Nicholls v Carpenter (1974) 1 NSWLR 369

HEARING

CANBERRA
5:1:1990

Counsel for Plaintiff : Mr P Dodson

Solicitors for the Plaintiff: Messrs Romano & Co

Counsel for Defendant : Mr J Hartigan

Solicitors for the Defendant: Messrs Abbott Tout Creer

& Wilkinson

ORDER

There will be judgement for the plaintiff in the sum of $129,904.95.

DECISION

The plaintiff's claim is for damages for negligence arising out of an accident said to have taken place on 1 May 1980. The plaintiff pleaded that at a point near Lake George, New South Wales, a vehicle being driven by the first defendant skidded and overturned thereby causing him injuries. Paragraph 5 of the Statement of Claim reads:-

"The said accident occurred as a result of the
negligence of the secondnamed defendant through
its agent, servant and employee the firstnamed
defendant and the firstnamed defendant.
PARTICULARS OF NEGLIGENCE
(a) Failing to keep a proper look out.
(b) Driving too fast in the circumstances.
(c) Failing to manage and control his said
vehicle so as to avoid the collision with
the vehicle in which the plaintiff was in.
(sic)
(d) Failing to take all the necessary
precautions while driving on a wet and
slippery surface."

2. An appearance was filed on behalf of both defendants on 6 July 1982, the Writ having apparently been served on 25 February 1982. On 15 July 1982 a Defence was filed. Paragraphs 2 and 3 of that Defence were in the following terms:-

"2. The defendants deny the facts alleged in
paragraphs 3, 4 and 5 of the Statement of
Claim.
3. The defendants denies (sic) that either of
them was guilty of the alleged or of any
negligence."

3. Interlocutory Judgement was not signed but the trial proceeded as an assessment of damages only, liability having been admitted by the first defendant.

4. During the course of the cross-examination of the plaintiff, Counsel for the defendants asked some questions of the plaintiff concerning the circumstances of the accident. The effect of the plaintiff's answers was that the accident happened when a lady who was driving another car overtook in circumstances where she was required to cut sharply back in front of the vehicle in which the plaintiff was riding and that the first defendant then swung to the left and ran into an embankment.

5. Following upon those answers, Counsel for the defendants sought leave to withdraw the admission of liability. I refused his application.

6. In a sense, Counsel was seeking to lead fresh evidence so that the trial might proceed on the basis that liability was in issue.

7. As to such "fresh" evidence, I refer to the Judgement of Glass JA in Nicholls v Carpenter (1974) 1 NSWLR 369 where he said at p 373,

"The conditions which must be fulfilled before a
title to a new trial on this ground can be made
out had been defined by the High Court Greater
Wollongong City Council v Cowan ((1955) [1955] HCA 16; 93 CLR
435) and cases there cited. One requirement is
that the fresh evidence was unavailable to the
appellant at the first trial, notwithstanding the
exercise by it of reasonable diligence McDonald
v McDonald ((1965) [1965] HCA 45; 113 CLR 529 at p 542). No
difference in meaning is suggested by the
alternative formulations that the fresh evidence
could not have been discovered by the exercise of
reasonable diligence: McDonald v McDonald (supra
at p 532); Orr v Holmes ((1948) [1948] HCA 16; 76 CLR 632 at
pp 635, 644); or could not with reasonable care
have been discovered previously Green v
The King ((1939) [1939] HCA 4; 61 CLR 167 at p 174). Where the
moving party is an insurer who incurs liability
under any verdict recovered against the nominal
defendant, the criterion is identical. All the
circumstances, however, require consideration,
including the information supplied and withheld
by the insured and the independent measures taken
by the insurer to ascertain the facts McCann v
Parsons ((1954) [1954] HCA 70; 93 CLR 418 at p 431). The steps
taken by the insurer preparatory to trial are to
be separately examined in each case and the
notorious circumstance that it is only one trial
among many furnishes no reason either for raising
or lowering the standard by which its conduct is
to be measured ..... It is conceded that the
evidence would have been readily accessible if
application had been made to ..... witnesses
whose names were known to it. The concession is
accompanied by the submission that, in default of
some indication which puts the insurer on
inquiry, he is entitled to assume that the
insured has furnished a truthful and honest
report. It has been held that a defendant shows
no lack of diligence in accepting without further
investigation false statements made by a
plaintiff as to his age SG White Pty Ltd v
Findlay ((1955) 72 WN (NSW) 484). It is argued
that, whenever the information comes from the
plaintiff or a nominal defendant acting in
concert with the plaintiff, the real defendant
cannot be wanting in due care because it accepts
that false information without verification. To
rule otherwise would, so it is submitted, allow
the plaintiff to rely on his or her own fraud to
defeat the just claim of the defendant to a new
trial. But a decision whether or not due
diligence has been displayed depends on all the
circumstances affecting the insurer's preparation
for trial. If the information accepted has been
fraudulently supplied to it by or on behalf of
the plaintiff, that is a matter for
consideration, but it does not conclude the issue
in favour of the insurer. The additional
circumstances requiring consideration in the
present case include certain matters brought to
the attention of the insurer which should have
put it upon inquiry. It has been submitted
against the appellant that reasonable care
required that they be noticed and pursued. Both
of these pointers to action arose from the
contradiction between the report of the insured
and the report of the police officer. The former
stated that the plaintiff was a passenger and
that there were no independent witnesses. The
latter stated her classification (viz. as
passenger or driver) was not known and that there
were two witnesses, AJ and WC Bates. The common
address of the plaintiff and defendant should
have suggested a distance between them which was
less than brachial. The court is called upon to
judge by the standard of a reasonably prudent
litigant the conduct of the insurer in accepting
the statements of its insured in face of these
contradictions. Its failure to observe the
inconsistencies and carry out the further
investigation which would have admittedly yielded
the fresh evidence constitutes in my opinion a
want of reasonable diligence which is fatal to
the application."

8. Counsel for the defendants, plainly acting in the interest of the compulsory third party insurer, did not produce any material to indicate what steps the insurer had taken to verify the circumstances of the accident. The plaintiff and the first defendant were brothers and the second defendant was a family company. A third brother was also travelling in the cabin of the vehicle at the time when the accident arose. He also brought action against the first defendant. That action proceeded ultimately as an assessment of damages with liability not in issue and judgement in his favour was given on 25 March 1987. The circumstances of the accident were not therefore canvassed in the reasons for judgement handed down on that occasion.

9. No request for further and better particulars of the allegations of negligence seems to have been delivered to the plaintiff's solicitors nor is there any evidence that interrogatories for his examination were delivered. Interrogatories for examination of the first defendant, although delivered, were not answered and this is quite understandable in the circumstances. But the insurer had been, as the conduct of the trial of the earlier action indicated, suspicious of the circumstances of the accident and it seems to me that it was put on sufficient notice to enquire more deeply into the circumstances before this matter came on for trial. There was not, in my opinion, that due diligence which would have entitled it to leave to withdraw the admission of liability. I am not satisfied, in all the circumstances, that the claim in the Statement of Claim constitutes fraud.

10. I note that in his report of 5 November 1982 Dr Edwin Cassar, who saw the plaintiff on reference from the defendants' solicitors, gave the history of the accident in the following terms:-

"Mr Celestino advised that the truck in which he
was travelling was passed on a wet road by
another motor vehicle which then cut in front of
the truck, causing it to hit an enbankment in an
effort to avoid the vehicle, the truck then
rolling it over turning."

11. This history is in substance that which the plaintiff gave when examined on oath and was clearly enough to put before the defendants' insurer's solicitors the plaintiff's version of how the accident had happened. Less than three weeks after that report the defendants' solicitors admitted liability.

12. In addition, Counsel for the plaintiff in opening said,

"The accident, it appears, occurred one morning
while the three brothers were travelling in a
truck to Goulburn to do some work as drainers and
the circumstances which I do not understand to be
in issue are that an overtaking driver cut in
suddenly, effectively bringing about a situation
where the first defendant steered the vehicle in
such a way as it ran off the road."

13. It will be seen that the plaintiff's version of the accident has been consistent throughout.

14. I think it probable also that the way in which the Statement of Claim was drawn may have contributed to the possibility of confusion. It was not clearly drawn and should, I think, have been the subject of a request for further and better particulars or, perhaps, an application to have it struck out for lack of clarity.

15. Applying the principles enunciated by Glass JA in Nicholls v Carpenter (supra) it seemed to me that the proper course was to refuse the application as having been made far too late, there being no basis, as it seemed to me, upon which a claim in fraud might have been made.

16. Before turning to the plaintiff's complaints of injury allegedly arising out of the accident, it is convenient to refer to his medical history before 1 May 1980. It appears from a medical record maintained by the Scullin Health Centre, specifically by Dr Szmerler, although some entries were made by persons other than him.

17. On 11 March 1975 he complained of headaches which had lasted apparently for two weeks. He was suffering from nasal congestion. Again on 26 June 1975 he complained of frontal headaches with nasal congestion which had apparently been present for two weeks. On 14 July 1975 he was complaining still of severe headaches which appeared to be related to sinusitis. On 1 December 1975 he complained of increasing headache and giddiness over the past year. The headaches were then so bad he could not finish a day's work.

18. The headache tended to come on in the second half of the day and was mainly left sided. The central nervous system was apparently entirely normal. On 9 December 1975 a brain scan proved to be normal and the plaintiff was referred to Dr Cassar.

19. Dr Cassar's notes are as follows:-

"(1) Main problem is 2 year history of left
sided throbbing headache usually brought on by
strong sunlight with associated nausea and
vomiting but not classic visual disturbance of
migraine. Childhood illness of similar type of
migrainous headache and abdominal pain.
Predisposing factors:- Dietary (eggs, chocolate,
alcohol), Family history of headache (brother and
sister) of similar type. Duration up to 12
hours. No relief from drugs. Frequency daily??
At times has had palpitations, sweating and
flushing]
(2) Reason for referral is abnormal. LFT's -
no history of jaundice.....no signs of liver
failure.
Provisional diagnosis-
(1) analgesic induced -
(a) hepatic disease;
(b) nephropathy;
(2) migraine equivalent headaches;
(3) neurosis;
Suggest -
(1) (a) cease heavy analgesic consumption...;
(2) Commence on Sandomigram;
(3) Commence on Valium;
Review in one week.
23.12.75 Headaches settled with Valium and
Sandomigram/Migral."

20. On 24 September 1977 the plaintiff presented again with headaches saying he could not open his eyes and that his vision was blurred. He had nausea with occasional vomiting. The notes comment that he did not look to be in great pain and that it was very difficult to elucidate history but that the plaintiff was taking too many analgesics.

21. The next significant entry was one on 3 May 1980 which referred to a motor vehicle accident two days earlier (1.5.80). The plaintiff gave a history of having hit his head and suffered from chest pain and that there was pain on all neck movements. He complained that his right loin was tender. On 15 September 1980 he was complaining of migraine. On 10 November 1980 he was still complaining of a painful neck. On 5 March 1981 he was still complaining of headaches which were not relieved by medication which was prescribed.

22. The plaintiff was born on 18 September 1948.

23. He had left school when aged 16 and migrated to Australia in 1967 when he began labouring work as a drainer.

24. The plaintiff gave evidence that in the accident he hit the top of his head and a small bruise eventually appeared there. His neck and chest (he was wearing a seat belt at the time) were also painful. His brother, the first defendant, drove the vehicle back to Canberra where the plaintiff went home, arriving there before lunch. He did not work for the rest of the day. He described having pain in the back of the neck, "very deep", to the head and to the chest. He did not have a headache at the time. He said that two days later he went to see Dr Berenson although the doctor he normally consulted was Dr Szmerler. The medication which Dr Berenson prescribed did not help much. About 10 or 15 days after the accident he went back to work. During that 10 to 15 days he still had neck pain and chest pain. When he tried to work he found that manipulation of the levers of the backhoe which he operated caused more neck pain and chest pain. He said that when he did return to work he was unable to work full time even though he was anxious to meet the needs of his family. He had, he said, worked six days a week before the accident for long hours. He liked his work. He continued to work although with difficulty, he said, for the rest of 1980.

25. The plaintiff said that he began to feel back pain early in 1981. The pain he described as being present from a point of about five or six inches above the belt line to the buttocks centrally with some bias towards the left.

26. The plaintiff's basic claim is that as a result of the incident he continues to suffer from pain in the neck which was not present before the accident and that he gets in conjunction with that pain severe disabling headaches of a migrainous type and that these headaches prevent him from working. He agreed that he could work for much of the week at the ordinary tasks of a backhoe operator and could, in addition, walk freely over rough sites and engage from time to time in digging necessary in clearing trenches. He could also lay pipes. He estimated that the amount of time which he could devote to this work, without feeling the need to go home because of pain, was of the order of 20-30 hours a week.

27. The plaintiff also complained of back pain which he said he felt in early 1981. He said,

"The back pain I feel in the early 81, because
after that then I just have a pain bit
everywhere, you know, but on the front it
disappear and it come on the back, later come on
the back."

28. I am unable to see any causal link between the injuries sustained on 1 May 1980 and the lower back pain which began to manifest itself early in 1981. There is no complaint of that pain at or near the time of the accident. No reference is made to it in the medical history from the Scullin Health Centre. The plaintiff's wife does not make any reference to it, nor does the plaintiff. It seems to me also that the pain was a relatively moderate pain in any event and I do not think it plays any particular part in any disability from which the plaintiff suffers.

29. The position regarding the neck pain and the headaches is different.

30. The evidence concerning the plaintiff's neck does not establish, in my opinion that there was a disc lesion at any level of the cervical spine. However, there is evidence from Dr Cassar, which I accept, that he has on many occasions observed spasm in the neck muscle. This Dr Cassar regarded as an objective sign. He had observed it, he said, more often than not when examining the plaintiff. He thought it consistent with the plaintiff's condition that he should be able to work quite vigorously for a good deal of the day as a backhoe operator and engage in work generally as though he was not incapacitated at all but that when neck pain and headache combined as they did he would have expected the plaintiff to be incapacitated as he said.

31. Dr Andrews, a Consultant Neurologist called on behalf of the defendants, accepted that whiplash injuries of the type described to him by the plaintiff could be productive of quite disabling symptoms indefinitely and that a classic symptom of such an injury was occipital pain radiating from the neck into the occipital region. Dr Andrews took the view that the migraine from which the plaintiff appeared to have suffered in 1975 and 1977 had the characteristics of classic migraine and that he thought it had been controlled to the point where in the absence of some traumatic incident it might of been controlled permanently. He said that with a cervical problem, whatever the pathology, one could have what appears to be a migraine type headache but his experience was that true migraine was more likely to respond to interval therapy than a secondary type of migraine. He said that a person suffering from a secondary migraine had all the symptoms of migraine, virtually, except for the classical symptoms of visual or sensory disturbance that precede the headache. These disturbances are not usually seen with a secondary migraine. He conceded that, although there were a lot of grey areas in the presentation, as a generalization one could say that it was far more likely that if the plaintiff were not suffering from visual disturbances and despite the fact that he was having classical migraine symptoms, his headache would be produced by his cervical spine. He agreed that a significant proportion of patients with whiplash injuries, probably less than 50 per cent, had very persistent and very disabling symptoms arising from cervical spine injuries causing headaches which could mimic migraine headaches. He agreed that an observation of muscle spasm in the neck in more recent years would be a strong indication that the plaintiff had some underlying clinical problem with his neck.

32. Dr Spira, another consultant Neurologist, also gave evidence on behalf of the defendant. He gave as his opinion that the plaintiff had sustained a wrenching injury to the neck and back in the motor vehicle accident. He thought the severity of the trauma was moderate having regard to the fact that the plaintiff did not seek medical attention until many hours (at least 48) after the motor vehicle accident. He found it difficult to explain the protraction of the symptoms in organic terms. Certainly he said the plaintiff's physical examination revealed no residual physical deficit. He thought that there were present a large number of functional features and that presence was a clear indication of a great deal of emotional elaboration on the part of the plaintiff. He then went on,

"According to the history the most significant
after-effect of the accident has been the
development of vascular headaches. There is
however some doubt as to whether this type of
headache actually started following the accident
as I note that he has had what he calls "sinus
headache" even prior to the event. The term
"sinus headache" often refers to migraine and I
suspect that Mr Celestino has had a migrainous
tendency for some time. In the absence of direct
head trauma it is difficult to explain the
emergence of migraine following a motor vehicle
accident.
In summary I feel that emotional factors are
responsible for the protraction of Mr Celestino's
symptoms and he appears to have made a full
physical recovery from what was a minor injury."

33. During cross-examination Dr Spira was made aware that the plaintiff had in fact suffered a minor head injury to which I have earlier made reference. I set out a passage from the cross-examination:-

"Doctor, what is the origin of the tension
headaches of which you spoke? I think you
described them as a new sort of intermediate form
of headache which has been recognised?---No, no.
There is a tension vascular.
Tension vascular, I am sorry. What is the cause
of tension vascular headaches?---We are as
ignorant to that as we are of what the cause of
migraine is or a tension headache for that matter.
Is trauma to be excluded as a cause of
migraine?---Certainly. Trauma to the head can
result in the development of migraine.
Can it?---No question, yes.
Are you aware that this man was struck a blow to
the top of his head in the motor vehicle
accident?---No I was not actually.
...Well, the blow to the head, if you assume that
a blow to the head was suffered in the accident,
that would be a significant matter in relation to
his present complaints, would not it?---Are we
referring to vascular headache?
We are referring to the pain he complains of in
his neck and occipital region?---Certainly if he
has developed tension vascular headache on the
basis of a blow to the head. This is certainly
consistent.
It is certainly consistent?---With a head injury,
yes.
Because tension vascular headaches have been
associated with trauma?---Yes. Some individuals
who have never had tension vascular headaches
suffer minor head injury and may have tension
vascular headaches from that day on.
Yes, for the rest of their lives?---Not usually
but certainly for many years.
I think it would be fair to say that there is a
great spectrum of disability arising from
vascular tension headaches. Would it be fair to
say that in that spectrum there is a position
that a sufferer may be disabled from working
heavy work for up to two or three days a
week?---On the basis of vascular headache,
certainly, yes.
It would be possible, would it not for this man
to be suffering from vascular tension headaches
caused by the accident and at the same time that
he is a migraine sufferer?---The fact that he was
previously a migraine sufferer would probably
predispose him to an accentuation of his vascular
headaches following head trauma, yes."

34. I think the proper conclusion to draw from all the medical evidence is that the plaintiff was susceptible to migraine headaches and had been so since at least 1975. I am satisfied, however, that treatment had been effective in controlling the migraine for some years until the accident. I do not think the plaintiff would have failed to complain about continuing headaches of migraine type had he had them in the years immediately preceding 1 May 1980. If anything, he impressed me as being something of a hypochondriac. The real question is whether the migraine from which he had suffered would have returned in any event causing him that degree of incapacity or some part of it from which he presently suffers as a result of the vascular headaches. I am satisfied that he did have time off from work due to those headaches and I think they were, for all practical purposes, due to the accident.

35. In reaching a conclusion on this question I take into account the film of the plaintiff engaged in quite hard work over a period. The film was taken of the plaintiff in September and October 1982, in January and February 1984, in December 1985, in April and May 1986, in November and December 1987 and in March 1988. The film disclosed no sign that the plaintiff was suffering from any disability at all but it is not inconsistent with the plaintiff's evidence and that of his brothers and his wife that he could work very hard during much of the day or indeed, as I am satisfied, on occasion for whole days and thereafter find himself unable, because of his headaches, to work any further.

36. The difficulty is to assess with any degree of precision the extent of his loss of economic capacity. There are no records of the times when he was absent from work allegedly due to his headaches.

37. This is a matter for some surprise as the Writ was issued as long ago as 27 July 1981 and the plaintiff claims that his inability to work for a full 40 hours (indeed 48 hours) per week began during 1980 immediately after the accident. One would have expected that appropriate records would have been kept. Nevertheless I am satisfied that the plaintiff did have some time off from work due to the vascular headaches.

38. The onus of proving his loss rests on the plaintiff but none of the evidence led on his behalf satisfies me that he was able to work for only 20 to 30 hours a week. I am not prepared to accept his evidence as completely accurate. I note, for example, the following statement which appears in his Statement of Particulars:-

"After the accident the plaintiff returned to work
with the defendant from the 2nd February 1981 to
the 8th July 1982."

This accorded with his taxation returns for the years ended 30 June 1980 and 30 June 1981. In the first he is shown as having been employed from 1 July 1979 to 24 April 1980 and his copy group certificate matches that. In the second he is shown to have worked from 2 February 1981 to 30 June 1981. Again his copy group certificate matches that. A note giving additional information to the Taxation Commissioner says,

"Taxpayer did not work for the whole year as he
as injured in a car accident and was unable to
work."

For the year ended 30 June 1981 his copy tax return shows him to have earned $4,160.00 or exactly $80.00 per week for the whole year. But he gave evidence that he returned to work 10 or 15 days after the accident. His wife said it might have been weeks after the accident that he did so. Oddly enough, the taxation records of the plaintiff's brother Guiseppe, also injured in the accident, show exactly the same details concerning loss of work and income for the period to 2 February 1981.

39. The plaintiff's tax return for the year ended 30 June 1980 shows him to have worked for the period from 1 July 1979 to 24 April 1980 and to have earned as the employee of the second defendant the sum of $10,510.00 for that period, or an average of approximately $247.00 per week gross.

40. On 1 August 1980 the plaintiff consulted Dr Corry, a specialist in rehabilitation medicine, on reference from Dr Szmerler. He told Dr Corry that from the first month after the accident he attempted to return to work on three or four occasions but on each occasion could not continue because of severe headaches. Dr Corry saw the plaintiff again on 31 October 1980. Radiological investigations had been carried out in the meantime. He thought the plaintiff much improved and found him to have a full range of neck movement. His headaches were much less but he complained of aching behind the eyes after one or two hours exertion. He also complained of grating in the neck with movement but only occasional aching. Dr Corry concluded his report concerning that second visit by saying,

"I have recommended that he continue traction and
mobilisation for a further three weeks by which
time I would hope he would be able to cope with
return to full time work."

41. Dr Corry reviewed the plaintiff's progress on 23 January 1981. He found then that the plaintiff's symptoms from his neck had largely settled although he still complained of some light stiffness. He did not expect him to have significant problems from that injury. He said that the plaintiff still complained of persisting headache and that he occasionally developed feelings of vertigo and dizziness lasting a few minutes. He thought these symptoms suggested that there might have been a significant post concussive element and referred the plaintiff to Dr Andrews.

42. It is, I think, plain from Dr Corry's reports that the plaintiff had told him that he was engaged in part time work at least in late 1980 but I am unable to assess with any degree of accuracy the time he lost from work as a result of the accident in the period to February 1981.

43. The plaintiff claimed by his income tax return for the year ended 30 June 1981, that he earned only $4,160.00 for that year. I refer again to the note given as additional information in respect of that return which says,

"Taxpayer did not work for the whole year as he
was injured in a car accident and was unable to
work."

The period during which the plaintiff is said to have worked in that year was from 2 February 1981 to 30 June 1981. I do not accept that statement in his tax return as accurate, having regard to his own and his wife's evidence and the inferences which may properly be drawn from his statements made to Dr Corry.

44. For the year ended 30 June 1982 the plaintiff's tax return shows him to have earned $17,160.00 (approximately $330.00 per week gross) together with a sum of $152.00 shown as representing unemployment or sickness benefits received.

45. His tax return for the year ended 30 June 1983 shows him to have received $6,236.00 as unemployment or sickness benefits from 9 July 1982 to 29 March 1983. In addition, he is shown as having received the sum of $10,601.00 from a family trust.

46. For the year ended 30 June 1984 he is shown as having received $30,000.00 and this is corroborated by a group certificate which shows that amount as his gross income from his employer and a net income of $25,153.00 after tax. For the year ended 30 June 1985 his income is shown as $26,000.00 from his employer plus $7,000.00 from the family trust. For the year ended 30 June 1986 his income is shown as $40,000.00 gross.

47. For the year ended 30 June 1987 when he is said to have worked for the second defendant from 1 July 1986 to 31 March 1987, his gross income received from the second defendant is shown as $23,800.00 with unemployment benefits for the last three months of that financial year amounting to $2,322.00. Additionally, he received a gross lump sum payment of $15,668.00, the second defendant having ceased to carry on business, it would seem, on 17 April 1987.

48. The plaintiff went to Italy on 8 March 1983 apparently following a suggestion by his father that he should both visit his parents and also see a doctor in Italy who could speak his language. While in Italy he became ill and was hospitalised from 2 June to 11 June, 25 August to 31 August and 12 September to 26 October 1983. It was thought initially that the plaintiff was suffering from hepatitis caused by a virus but it became clear later that its cause was the drugs which the plaintiff had been taking to deal with his neck condition. I am therefore satisfied that the plaintiff ought to receive damages for loss of earning capacity for the period from 2 June to 26 October 1983. I do not see how his loss of earnings during his trip to Italy, except in respect of the period when he was sick in that country, can be laid at the door of the defendant.

49. The second defendant employed only the three brothers Guiseppe Celestino, Rocco Celestino and the plaintiff. It carried on the business of a drainage contractor and was the source of the income of the family trust. Its gross receipts for the years ended 30 June 1979 to 30 June 1982 inclusive were respectively $72,271.06, $86,118.47, $92,281.45 and $224,663.86. In the year ended 30 June 1983 the receipts dropped to $162,505.09. During a fairly substantial part of that year, the plaintiff, an extremely competent backhoe operator, was in Italy. For the next year the company's receipts rose to $283,393.80 and in the year ended 30 June 1985 they amounted to $541,864.14. Despite the plaintiff's absences from work to which he deposed it seems that the company did very well after 1 May 1980. As will be seen from the income said, according to his tax returns, to have been earned, he was in receipt generally of substantial amounts of income until 17 April 1987.

50. The plaintiff gave evidence that he managed to survive by virtue of loans made him by the second defendant but loans seem to have been made to all the brothers at various times. In the year ended 30 June 1985, for example, loans of $22,739.00 were made to Rocco Celestino, of $15,123.00 to Giuseppe Celestino and of $18,384.00 to the plaintiff. It seems to have been the case that loans were made to the three brothers consistently from the financial year 1979/80 onwards. The amounts lent to the several brothers during this period varied but generally they were significant amounts.

51. In the result, I am not satisfied that the plaintiff has proved a loss of earning capacity except to the extent indicated above up to 17 April 1987 nor am I satisfied that the plaintiff has been unable to work at all since then. The second defendant has apparently retained the backhoe notwithstanding the cessation of the business and I am satisfied that the plaintiff could have worked a substantial part of each week as a backhoe operator using that machine.

52. He claims that he has not worked, except to a very limited degree only, for the period from 17 April 1987 onwards and alleges that his not working was due to his incapacity as a result of the accident. I do not accept his evidence as to that incapacity but I think it appropriate to make an award in respect of the period from 1 April 1987 to date and continuing on the basis of a loss of earning capacity of 20%.

53. I do not think I should assume that the plaintiff will not be able to get work as a backhoe operator. In my opinion he has proved himself to be a competent operator of plant of that type and I proceed on the basis that, having once been self-employed, he is clearly likely to become self-employed again either by himself or in partnership with others, probably his brothers.

54. I think his time spent at work was rather greater than his evidence would have had me believe.

55. But when all this is said it is still the case that the plaintiff suffers from a disabling combination of neck pain and vascular headaches. It may be that his migrainous condition would have reasserted itself, accident or no, but the evidence satisfies me that, had it done so, the probabilities are that it would have been controlled by medication and not seriously incapacitated the plaintiff. That does not apply to his present condition.

56. I refer again to his visit to Italy and the liver complaint he contracted while there. I am satisfied that this was due to the drugs which he ingested in an endeavour to treat the headaches and pain from which he was then suffering. He had a history of excessive consumption of medications. Accordingly, I find that the time which he spent in hospital (some three months) and the cost of that hospitalisation, treatment and medication was due to the accident.

57. In assessing the plaintiff's damages, I proceed on the basis that the plaintiff could earn for a full week of 38 hours $490.00 gross.

58. Yet I am satisfied that he did miss some work due to the accident in that first period of nine months. Doing the best I can, I think I should allow him a loss of earning capacity in respect of that period for three months. Thereafter, except for a period which he spent in hospital in Italy, a period to which I will refer again shortly, I do not think it appropriate to allow anything for loss of earning capacity until 31 March 1987. As I have remarked, it is for the plaintiff to prove the loss of earning capacity which he claims and I am not satisfied that he has done so except to the extent already indicated and in respect of the period commencing on 1 April 1987. By his particulars, the plaintiff claimed that he was unable to work from 9 July 1982 to 15 January 1984. His income tax return for the year ended 30 June 1983 shows under the heading "Unemployment or Sickness Benefits" a receipt of $6,236.00. The circumstances of his employment was such that I am unable to accept that those benefits could have been paid in respect of actual unemployment. They must have been paid in respect of claimed sickness. I am, however, satisfied that on Tuesday and Wednesday, 11 and 12 October 1982, the plaintiff was working as a backhoe operator with his brothers at Macarthur. He also used a jack hammer and generally engaged fully in heavy, strenuous work requiring the expenditure of a great deal of energy.

59. In the end I am satisfied that in respect of the period to 31 March 1987 the plaintiff should receive damages under three separate headings. These are:-

(a) an amount representing the loss of three months
earning capacity in the period ended
1 February 1981;
(b) a sum representing lost income from the period
from 2 June 1983 to 26 October 1983; and
(c) a sum representing general damages for loss of
earning capacity from which I am satisifed the
plaintiff suffered but which I am unable to
quantify except in a most general way.

60. Under those three headings, I award respectively $3,500.00, $6,300.00 and $7,000.00.

61. A backhoe operator, as skilled as the plaintiff, is, I think, capable of earning at least $477.00 gross for a 38 hour week. Additionally, he could earn substantial amounts for working on a Saturday. I assess the plaintiff's loss from 1 April 1987 to date on the basis that he should have earned, if completely fit and if the work had been available, a net weekly income of $346.00 rising by now to $363.00 per week. I allow, therefore, the sum of $10,130.00.

62. For future economic loss I allow $60,750.00 representing 20% of $363.00 per week to age 65 discounted by 3%. I have not discounted that figure further since the vicissitudes which ought to be taken into account are, I think, balanced by the capacity which, but for the accident the plaintiff would have had to earn overtime.

63. For general damages for pain and suffering and the like I award $35,000.00 and for out-of-pocket expenses $7,224.95.

64. There will be judgement for the plaintiff for $129,904.95.