Branko Laic v Victor Shkolar [1993] ACTSC 57 (18 June 1993)

SUPREME COURT OF THE ACT

BRANKO LAIC v. VICTOR SHKOLAR
No. SC240 of 1991
Number of pages - 13
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master Hogan(1)

CATCHWORDS

Negligence - Motor vehicle accident - Semitrailer coming on to road - Vehicle overtaking - Head on collision with vehicle in opposite direction - No issue of principle.

Damages - Assessment - Personal injury - Motor vehicle accident - Neck and back injury - Soft tissue - No issue of principle.

HEARING

CANBERRA, 22-23 March 1993
18:6:1993

Counsel for the Plaintiff: F. G. Parker

Instructing Solicitors: Gary Robb and Associates

Counsel for the Defendant: M. J. Cranitch

Instructing Solicitors: Abbott Tout Russell Kennedy

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $61,974.

DECISION

MASTER HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 29 September 1986.

2. At about 5.40 pm on that day the plaintiff was driving a Ford Falcon sedan in a westerly direction in Isabella Drive, Richardson.

3. In the vicinity of the scene of the collision Isabella Drive is a bitumen road with one lane for traffic in each direction. For traffic travelling west the road curves very gently to the right as it approaches a roundabout at its intersection with Ashley Drive. About 150 metres to the east of that roundabout the road is carried on a bridge over a stormwater canal. There are no buildings on the land in the immediate vicinity of either side of the road. The plaintiff was alone in his vehicle. The weather was fine, the roadway dry, and it was still daylight.

4. As the plaintiff was driving west, and some distance before reaching the bridge over the canal, he saw a semi trailer on the ground that was to his left of the roadway, and some distance ahead of him. It was also travelling in a westerly direction, and at first in a direction roughly parallel to Isabella Drive.

5. The plaintiff gave evidence that as he got close to the bridge the semitrailer suddenly came onto the road. In order to avoid colliding with the semitrailer he was forced to move to the carriageway to his right and overtake the semitrailer. While in that carriageway and on the bridge he collided with a Holden sedan that was being driven in the opposite direction by a Mr Hurst.

6. The driver of the semitrailer was the defendant in this action, Victor Shkolar.

7. The main particulars of negligence alleged against the defendant are that he failed to give any indication of his intention to move the semitrailer on to the roadway, that he failed to keep a proper look out so as to observe that he would cause danger to the plaintiff if he did so, and that he moved onto the roadway when it was not safe to do so.

8. There was no evidence given by Mr Hurst.

9. The accident was investigated by Constable Richardson. When he arrived at the scene the semi trailer had been moved to a point west of the bridge. The debris on the roadway demonstrated that there had been a head on collision on the bridge, at a point just to the east of where the canal passes underneath the road.

10. The plaintiff told Constable Richardson that he had been travelling at a speed between 70 and 80 kilometres an hour, and that he was between 25 and 30 metres from the semitrailer when he first saw it. It was then on the side of the road.

11. The plaintiff was born in Yugoslavia in 1956, and came to Australia in 1985, less than a year before the accident. He gave evidence through an interpreter, and Constable Harrington agreed that his English was not very good, and that he had someone at the scene to interpret for him when being interviewed. In the circumstances I do not place any great weight on inferences to be drawn from what the plaintiff said or did not say at the scene.

12. The defendant told the Constable that, "He was going south, he saw a New South Wales car going towards him. There was a green Ford overtaking and then bang." There was little else that was useful in the evidence about what the defendant said at the scene to Constable Harrington.

13. In his evidence in chief the plaintiff said that as he was driving, "on the left hand side, on the grass out of the road, there was one semitrailer, and that semitrailer was driving slowly into the same - in the same direction."

14. He was not sure of the distance from the left side of the bitumen to the semitrailer, but estimated it at, "a couple of tens of metres". Through the interpreter, he continued, "Actually, I saw this semitrailer in front of me, although it was on the grass and I was normally driving because there was nobody else on the road except me." Then he said, "There is one bridge on that road. Close to the bridge the semitrailer suddenly came into the road and forced me to go to the right side of the road, otherwise I would crash into the semitrailer." He did not see any blinker signal on the semitrailer.

15. Before the semitrailer started to move to the right his car, he said, was very close to reaching the back of the semitrailer. When the collision with the car coming in the opposite direction occurred his car was about level with the cabin of the semitrailer.

16. In cross-examination he agreed that visibility ahead was at all times good, that the speed limit was 80 kilometres an hour, and that he had been travelling at about that speed. He did not see the car coming in the opposite direction until he accelerated to pass the truck. As he expressed it through the interpreter, "When I pulled to the right side of the road I accelerated much to pass quickly but then he suddenly found himself in front of me and I couldn't do anything."

17. He agreed that he saw the semitrailer angling towards the roadway, but when asked when that was he replied, "He was actually driving parallel to the road nearby when he was close to the bridge, and then just in front of the bridge itself he came into the road." At the time when he swerved to the right hand lane some part of the semitrailer was still on the dirt.

18. There was in evidence a large scale aerial photograph of the scene, showing about half a kilometre of the road before the scene of the collision. Although taken some time later than the accident it shows what appears to be a track travelling parallel to the road and then veering on to it just before the bridge. During cross-examination the plaintiff marked on the plan the approximate positions of the truck when he first saw it, and of where it came onto the roadway. The markings were consistent with his oral testimony, and to some extent with the apparent track seen on the photograph. He also recalled having observed a vehicle behind him, travelling in the same direction, but far away.

19. There was nothing in the manner in which the plaintiff gave evidence to raise any doubt about his veracity or the accuracy of his memory. Nor was his adherence to his version of the accident shaken in any way by the cross-examination, so far as I could see.

20. The plaintiff's brother gave evidence. He was called to the scene after the accident. He observed dirt on the road which might possibly have been left by the tyres of the semitrailer as it came on to the road, and he marked its position on the photograph at a point a little to the east of the spot marked by the plaintiff, but, if anything, more consistent with the appearance of the track worn on the ground as it appears on the photograph.

21. The defendant gave evidence. Shortly before the accident he had dumped a load of soil on the vacant land to the south of Isabella Drive. He then drove parallel to the road in a westerly direction, and at a distance he estimated at 20 to 30 feet from the side of the road.

22. When he was about 80 metres from the bridge he started to diverge to the right to move on to the roadway.

23. As he got closer to the kerb he said that he put his head out the window and looked back. He saw a light coloured vehicle in the distance. Asked whether he did anything with the turning indicators he replied, "Not while I was on the dirt. As I got closer to the kerb and it was all clear, I put my trafficators on." The light coloured vehicle appeared to be about 250 metres back, and travelling at a normal speed. He proceeded to enter the bitumen at about 20 kilometres an hour, accelerating as he did so.

24. When he got fully on to the bitumen he looked in the rear vision mirror and saw that the other vehicle was, "getting pretty close to me." As he was then on to the bridge, the other vehicle was about 20 to 30 metres behind him. He had by then changed up a gear and was travelling at about 40 kilometres an hour, or a little more.

25. The vehicle then overtook him and the collision occurred, "right beside me, beside the cab."

26. In cross-examination he marked the point where he came on to the bitumen on the photograph, only about a car's length to the east of the place marked by the plaintiff's brother. It also was consistent with the appearance of the track shown on the photograph.

27. There were two independent witnesses to the accident. The first was Mr Considine Shattos. He was driving west along Isabella Drive, behind the plaintiff's vehicle.

28. There were two passengers in the Mazda truck that Mr Shattos was driving, and he was talking to them as he drove along. He perceived the plaintiff's car and the defendant's truck ahead of him. He estimated that he was about 200 metres behind the car.

29. When he noticed the truck it was already on the road and approaching the bridge. He could not estimate how far it was from the bridge.

30. The plaintiff's car seemed to be going at a faster speed than his, and he estimated his own speed at about 60 kilometres an hour. His evidence continued, "I seen the green Falcon in front of us and the truck and then I was talking to the boys and then I sort of looked up and then in the next instant I realised that the Falcon was going around the truck."

31. He agreed that there was a gap in time between his first seeing the car, and his looking back again at the vehicles ahead, during which gap he was talking to the passengers in his vehicle. He estimated that gap in time as being, "five or six seconds or something like that." He had not been asked to recall the accident in order to make a statement about it until the end of 1992, more than six years after the accident. He was not able to say where, in relation to the bridge, the truck came on to the bitumen.

32. Mr Shattos was obviously doing his best to describe what he remembered seeing as best he could, and in its general outline his description is consistent with the known facts. But I do not think that his estimate of 5 or 6 seconds during which the truck was on the roadway while the plaintiff's vehicle was behind it is sufficiently reliable in itself to enable any calculations to be based on it. Looked at as a whole, in the circumstances in which he had been asked to remember what happened, I think that the evidence of Mr Shattos is really broadly consistent with both the plaintiff's and the defendant's versions of the accident.

33. The other independent witness was Mr White, who was one of the passengers in Mr Shattos's vehicle. He was seated in the middle of the front seat. He observed the plaintiff's green Falcon ahead, travelling at a speed slightly faster than their own. He saw the truck off to the side of the road. He then saw it completely on the road. He estimated that the Falcon was approximately 200 metres behind the truck when the truck was completely on the road. He then saw the Falcon overtake the truck and saw its rear end lift up on impact. He estimated that his vehicle was four or five hundred metres or more back from the bridge when the accident happened.

34. Mr White was 16 years of age at the time of the accident, and he was not asked to recall it in order to make a statement until the end of 1992. It is clear to me that I should give more weight to inferences to be drawn from uncontested facts than to his estimates of distance. I think that his evidence also, in its broad outlines, could be consistent with either the plaintiff's or the defendant's version. But I also think that there are indications that neither the plaintiff nor the defendant are completely accurate in all details of their recollection, especially when dealing with the crucial question of the distance between their vehicles at the time the defendant drove his semitrailer on to the bitumen.

35. By scaling off the various marks made on the photograph, it can be demonstrated that on any version of the accident there was a distance of less than 100 metres from the point where the defendant's semitrailer entered on to the bitumen and the point of the collision, which was just to the east of where the bridge crossed the actual stormwater channel. If the mark made by the plaintiff were accepted the distance would be only 65 metres, but the marks made by the defendant and the plaintiff's brother seem more consistent with the track seen in the aerial photograph.

36. When the defendant came on to the road he was travelling at something less than 40 kilometres an hour, and at the time of the accident at something a little more. An estimate of an average of 35 to 40 kilometres an hour over the distance should not be unreasonable. That is a speed of the order of 10 metres a second.

37. The time that it took the truck to travel the distance from its point of entry on to the road to the point of impact was therefore of the order of 10 seconds or a little less.

38. During that time the plaintiff was travelling at a speed of the order of 80 kilometres an hour, or 22.22 metres a second. It follows that when the defendant came on to the road the plaintiff was at a point about 220 metres east of the point of impact, which would be 120 metres to the east of the point where the defendant entered the road.

39. If the plaintiff's estimate of the point at which the defendant entered the roadway is used as the basis for calculation, the plaintiff was about 145 metres east of the point of impact, or 80 metres east of the point at which the defendant entered the road.

40. I am aware that these are not exact calculations, and that the coming of the semitrailer on to the road was not an instantaneous event, but was a process which itself took time, and which could be seen to be about to happen by the plaintiff if he were watching.

41. But in practical terms the primary question to be resolved seems to me to be whether it was reasonable for the defendant to drive on to the bitumen when there was a vehicle approaching at a speed, lawful in the circumstances and to be expected on that stretch of roadway, of about 80 kilometres an hour, and when it was at a distance away of perhaps as little as 80 metres, but not much more than 120 metres.

42. If a reaction time of 1 to 2 seconds is allowed, the oncoming vehicle will travel between 22 and 44 metres before the driver even begins to apply the brakes.

43. There was no evidence called by either party about an estimated braking distance for a vehicle of the type that the plaintiff was driving on a road surface of the type in question.

44. But the answer to the primary question that I have posed does not depend upon whether it would have been physically possible for the plaintiff to have braked in time to avoid a collision. It is whether the defendant observed an objective standard of reasonable care in the circumstances as they existed.

45. I think it probable that when he reached the point at which he was about to enter the road the defendant should have observed that the plaintiff was approaching at speed, and that he was much closer than the 250 metres that he spoke about in evidence. The explanation may be that he put his head out the window and saw the plaintiff's vehicle some little time before he reached the side of the road. But he was aware that the vehicle was there. It is clear that it was much closer than 250 metres away as he entered the road. There was nothing to indicate that the plaintiff was slowing down. There was no reason why the defendant would be even inconvenienced by looking again before coming on to the road, and waiting till the plaintiff had passed before doing so. Had he looked again and waited there would not have been an accident. By coming on to the road he created a situation of potential danger for the plaintiff. I am persuaded that he failed to exercise reasonable care for the safety of the plaintiff in doing so.

46. There will therefore be judgment for the plaintiff.

47. The plaintiff was, as I think probable, presented with a situation where he perceived the possibility of colliding with the semitrailer coming on to the road.

48. But I do not think that he was so close to it that a collision was certain unless he moved to the other side of the road.

49. He should have perceived the semitrailer moving diagonally towards the road, and anticipated that it might continue on to it. He did not slow down at all. Had he done so he would have been able to slow or stop to avoid a collision, rather than moving to the wrong side of the road.

50. The decision that he was faced with was one he had to make in a short time. But there was nothing to obstruct his vision ahead, and he should have observed Mr Hurst's vehicle coming in the opposite direction. The distance from the point of impact to the roundabout is of the same order as that to where the plaintiff was when the defendant came on to the road.

51. But I am not persuaded that the plaintiff, seeing the semitrailer coming on to the road, simply decided to execute a swift overtaking manoeuvre without concern for other road users.

52. I think that he was sufficiently close to be presented with a situation of danger, in which he made a decision which in hindsight was clearly wrong, namely to overtake rather than to brake. But it was not a split second decision made in the agony of the moment. I think that there was some opportunity for him to have exercised more care for his own safety, by slowing down when he should have perceived that the truck was likely to come on to the road.

53. I would apportion responsibility for the plaintiff's damage equally between the plaintiff and the defendant.

54. It is clear that the plaintiff did not have any opportunity to brake to any extent before the collision. How he survived an impact at about 80 kilometres an hour I do not know. But it must obviously have been a most violent collision.

55. He was restrained by his seat belt, but he suffered a blow to the right forehead, and appears to have lost consciousness for a short time. He initially noticed pain in his left forearm and left lower leg.

56. After the brief police investigation he was taken to Woden Valley Hospital, where x-rays were taken and the cut on his forehead was cleaned. After some hours his brother drove him home.

57. After some days at home in bed he still felt in pain all over his body, and he was suffering from headaches and nausea. He returned to Woden Valley Hospital, where he received a prescription for painkillers and advice to consult his family doctor.

58. On 8 October 1986 he consulted Dr Niewiadomski, to whom he complained of headache, and pain in the neck, chest, back, left forearm and left shoulder. Dr Niewiadomski found limitation of all neck movements, and the muscles of his left shoulder and back were sore and tense. He ordered scans and x-rays, but they did not demonstrate any abnormality.

59. He referred the plaintiff to Dr Andrews, who saw him on 11 November 1986. He was complaining of loss of appetite, inability to sleep, and stabs of pain on sudden movement.

60. Although Dr Andrews found no abnormal neurological signs, nor restriction of movement in the neck, there was some spasm in the right paravertebral muscle. Dr Andrews diagnosed soft tissue injury, but also noted signs of depression. He prescribed Tryptanol. He expected that the plaintiff would be able to return to work in one or two months time.

61. That prognosis proved too sanguine. Despite continuing physiotherapy, he did not improve, and Dr Niewiadomski referred him to Dr Chandran, neurosurgeon, who saw him on 14 April 1987. He was complaining of headaches, pain between the shoulder blades and low back pain. Dr Chandran also diagnosed soft tissue injury and referred him to the Rehabilitation Unit at Woden Valley Hospital. For the headaches, he arranged for a steroid injection into the tender facet joints under x-rays control. They did not afford him any relief. Dr Chandran told him that there was no more that surgery could do for him.

62. At the Woden Valley Rehabilitation Unit Dr Howse saw him on 22 April 1987. His complaints had broadened to include pain in the back of the neck, radiating to behind the eyes, and associated with light headedness and nausea. There was occasional referred pain into the left arm. There was low back pain radiating into both hips, and some unusual feelings in the legs. Dr Howse found general weakness, an altered posture, some restriction of neck movement and tenderness in the neck and thoracic spine. In the lumbar spine there was flattening and restriction of movement.

63. Dr Howse diagnosed injury involving the posterior joints of the lumbar and cervical spine. He was still not fit to return to work as a motor mechanic. He was started on a program of exercises to increase his general fitness.

64. Dr Cairns, orthopaedic surgeon, examined him for the defendant on 25 June 1987. He also found him somewhat depressed, and adopting a drooped posture. He thought his complaints were reasonably attributable to soft tissue injury sustained in the accident. He thought him fit only for light manual activity at that time, but expected him to improve over the next year to full fitness for work.

65. He continued to attend the rehabilitation unit, but although some manipulation performed by Dr Howse gave him temporary relief, his overall condition did not improve markedly.

66. He returned to see Dr Andrews in August 1987. Dr Andrews suspected disc or facet joint dysfunction at C6/7. He arranged manipulative physiotherapy for three weeks. That did not help, so Dr Andrews arranged for a cervical myelogram at Royal Canberra Hospital. It was normal. So was the follow up CT scan, and electrical studies did not demonstrate any cervical nerve root entrapment. Dr Andrews suggested a cervical discogram, but the plaintiff did not want to undergo it.

67. Dr Niewiadomski referred him then to Dr Corry's rehabilitation unit, where he attended initially in mid November 1987. Dr Corry found marked increased dorsal kyphosis and general tenderness, with some restriction of movement of the neck, shoulder and right paralumbar regions. He arranged physiotherapy. Over the next month the plaintiff's mobility improved and his pain levels decreased. He felt he could start to work again, at least part time.

68. On 17 February 1988 Dr Keiller examined him for the defendant. His headaches had become infrequent, and the range of neck movement was virtually full. There was tenderness at the back below the left shoulder, and some symptoms in the left arm. The low back was better, and he felt that his depression was lifting as his condition improved. He was expecting to go back to some sort of work, although the left arm was still a problem. On examination Dr Keiller found some cervical and lumbar tenderness. His opinion was that the plaintiff's complaints were quite genuine, and that he still had significant symptoms in the neck and left arm. He thought that he might not be able to return to being a motor mechanic, and might need retraining in some other job, one not requiring prolonged neck flexion. He did not think his condition was yet stable.

69. On three days in March 1988 the plaintiff was observed, and video tape recordings were made of him. The evidence of the enquiry agent, and of the plaintiff relating to the observation, which was given in the Magistrates' Court was in evidence. He was seen carrying out some sort of work on two motor cars. He spent some minutes on his back under one of them and some minutes bending over into the engine bays on some other occasions. He lifted a baby on to a car bonnet. He displayed no visible signs of discomfort or limitation of movement.

70. Dr Keiller and Dr Cairns reviewed the video tape. On the basis of what they saw they both formed the opinion that the plaintiff was fit to return to his pre accident employment as a motor mechanic.

71. While I agree that the video tape raises the possibility that he was exaggerating his symptoms, for whatever purpose, I do not agree with their conclusion. The periods for which he was observed were not prolonged at all. To my mind they were so short as to give no real indication of his ability to engage in the type of activity demonstrated for even a number of hours, let alone a full working day. Nor were the activities anywhere near as strenuous as those that I would expect a motor mechanic to be engaged in during a normal working day.

72. His activities as observed also must be considered in the light of the desire that he had expressed, for example to Dr Keiller, to get back to some sort of work.

73. He gave evidence that he started looking for some sort of suitable work at the end of 1987 and the beginning of 1988.

74. Dr Cairns reviewed his condition on 2 May 1988. He told Dr Cairns that he considered himself unable to resume work as a motor mechanic, but that he had been looking for work in the cleaning industry, without success. He gave evidence that whenever he told an employer what his problem was they were not happy to take him on. Considering the problems that employers in that industry have with employees who have back problems that evidence has the ring of truth to me.

75. Dr Cairns could not find any objective evidence of organic injury to explain his ongoing symptoms. He expected him to follow the usual course "of all such musculo ligamentous injuries sustained in motor vehicle accidents" and to recover fully, after some time. That suggests a general attitude towards compensation claimants rather than a medical view about this particular person.

76. On 11 August 1988 he obtained work with ACT Industrial Cleaning Services, where he worked till 7 September 1988. He could not put up with the heavy work and extended hours.

77. A friend gave him a job in a firm called Pride Floor Coverings on 10 September 1988, and he was able to cope, but the firm ran out of work in December 1988.

78. He then worked as a carpenter's assistant for DF Formwork from 16 January 1989 to 25 May 1989, but left it because he could not work on heights, and his friend was carrying out the bulk of his work.

79. In April 1989 he got a job as a mechanic with ACT Brake Service, where he worked until April 1992.

80. This is not a pattern of behaviour which is typical of a malingerer.

81. His solicitors sought a medico legal opinion from Dr White, neurologist, who saw him on 27 April 1991. He told Dr White that the work he was doing at ACT Brakes was lighter work, and that he had coped, by and large, though with some pain.

82. His pain in the left forearm and hand was constant but fluctuating in intensity. Pain under the left scapular and in the left knee was intermittent. He felt that his depression had largely resolved. He was taking Panadol and Tryptanol, though intermittently.

83. On examination Dr White found he had some depressive symptoms, and complaints of pain which were not due to neurological dysfunction but to muscular ligamentous strain and instability. He was capable of continuing with the work he was doing, but Dr White doubted his ability to return to heavy work. The only treatment that he thought would be useful was that directed at his depression. If that could be coped with, and he could come to terms with his condition, the prognosis was good.

84. On 20 November 1991 Dr Cairns examined him again for the defendant. He thought that he had virtually fully recovered, and expected further improvement.

85. On 18 December 1991 Dr Keiller reviewed him for the defendant. He still stood with poor posture, and there was some tenderness, but movements were full and pain free. He considered the residual symptoms, which he described as "nuisance value" to be genuine, and expected them to continue indefinitely, though with some prospect of further improvement.

86. Dr Tym, psychiatrist, examined him for the defendant on 2 December 1991. He was still working as a brake mechanic. He complained of headaches and loss of power, and occasional pain in his left hand, wrist and forearm and occasional pain in the left shoulder blade and neck. Dr Tym could find no evidence of any significant psychiatric illness or disorder. He told Dr Tym that he did not continue to suffer from severe depression.

87. In April 1992 he left his job with ACT Brakes, and began taking on motor mechanical work at home. That did not bring in enough money, so he found work as a cleaner at Deakin High School, where he started in February 1993. He is still working at that job for the equivalent of 5 hours a night, 5 days a week. He continues to do mechanical work at home.

88. In June 1992 Dr Veness, psychiatrist, interviewed him for a medico legal report. He found his complaints of pain and depression in the past to be quite consistent with the injuries he received in the accident. He thought the plaintiff would remain vulnerable to future episodes of serious depression which could be triggered off by unavoidable life stresses. His future is precarious, and his ability to sustain ongoing paid employment is doubtful. He will be able to work so long as he can pace himself and take appropriate rest periods.

89. In February 1993 Dr White examined him again. There was no evidence of any persisting organic injury. He believed that his major complaints were depressive, and recommended specific treatment for the depression and active back and neck rehabilitation.

90. None of the doctors gave oral evidence, or were cross-examined. In the light of the history and of my observation of him as he gave evidence, I do not think that such differences as there are between them really cause any difficulty.

91. I am comfortably satisfied that he has not exaggerated his complaints. The accident was particularly severe.

92. In summary, he sustained significant but mainly soft tissue injury to the neck, shoulder and back, with some involvement at the posterior joints of the lumbar and cervical spine, but no identifiable damage to disks or nerves. His reaction to the pain, headaches, loss of mobility and inability to work took the form of depression.

93. Over a period of about two to three years his condition improved gradually with rehabilitation and physiotherapy, to the point where he was able to return to work of some kind, though not to full time work at his pre accident job as a motor mechanic. Although his depression has largely resolved he remains vulnerable to future episodes of serious depression.

94. For his pain and suffering and loss of amenity I would award the sum of $35,000, of which $25,000 would relate to the past.

95. For interest on that past component I award $3,400 on the conventional basis.

96. The out of pocket expenses are agreed at $2,504. The Fox v Wood component is agreed at $3,000.

97. The claim that was made in the particulars for an award under the principles in Griffiths v Kerkemeyer was not pressed or supported by any evidence.

98. On the findings I have made the past wage loss set out in the particulars amounting to $30,053.92 is made out. There is no claim made for interest on that amount.

99. A claim is also made, which I find supported by the medical evidence, of an unquantified lessening of the value of his future income earning capacity. His ability to work as a mechanic full time has been reduced, and he has been rendered more vulnerable to unemployment in the future, by comparison with his pre accident condition. I would assess that diminution in his income earning capacity at $50,000.

100. The total of the elements of the award is therefore made up as follows:

Pain and suffering $ 35,000
Interest 3,400
Out of pocket expenses 2,504
Fox v Wood 3,000
Past loss of income 30,054
Loss of future income earning capacity 50,000
TOTAL $123,958

101. Taking into account the finding on contributory negligence I direct the entry of judgment for the plaintiff in the sum of $61,974.

102. Unless there is some reason shown why I should not do so, I would order the defendant to pay the plaintiff's costs.