Roy Howard Stark v Graeme Bruce Pill [1995] ACTSC 83 (28 July 1995)

SUPREME COURT OF THE ACT

ROY HOWARD STARK v. GRAEME BRUCE PILL
No. SC524 of 1992
Number of pages - 15
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A. HOGAN

CATCHWORDS

Damages - Motor Vehicle Accident - Motor Cycle rider injured - Liability - Contributory Negligence - Head injury - Psychological condition - Impotence - No issue of principle.

HEARING

CANBERRA, 5, 7 and 8 June 1995
28:7:1995

Counsel for the Plaintiff: Mr G. Lunney

Instructing Solicitors: Crossin Barker Gosling

Counsel for the Defendant: Mr B. Hull

Instructing Solicitors: Wood Fussell

ORDER

THE COURT ORDERS THAT:
1. The plaintiff is entitled to an award of $112,808 for personal injury.
2. The defendant is entitled to an award of $937.60 for property damage.
3. The parties have liberty to apply as to the form of judgment.

DECISION

MASTER A. HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 22 February 1989. Liability is in issue. There are also small claims by both the plaintiff and the defendant for property damage.

2. The plaintiff was born on 28 November 1953 in the United Kingdom. He left school at 15 to take up a career as a professional soccer player with the Aston Villa Football Club. At 16 he enrolled in and completed a diploma in business management. From 1975 to 1977 he played soccer throughout Europe, Africa and Hong Kong, before accepting a contract to play in Canberra.

3. Upon his arrival in Canberra the plaintiff played semi-professional soccer with the Canberra City Soccer Club, and commenced an apprenticeship with Western Painters. He worked full-time for Western Painters from 1977 to 1981. Following a downturn in the building industry he leased a taxi and took on painting jobs as they arose.

4. The clinical notes kept by Dr MacIver, his general practitioner, show that he had sustained a fracture in the right ankle at some time before June 1979. During the 1981 season he twisted his right knee on three occasions. He consulted Dr Calder, orthopedic surgeon, who obtained a history that he had both menisci out of the right knee ten years before, and was now suffering considerable pain after each game. Dr Calder found clinical evidence of moderate patello-femoral arthritis, and advised him to give up professional soccer at the end of the season.

5. At the time of the accident he was employed as Manager of the Dickson Swimming Centre in 1987. He was also employed by the Royal Life Saving Society as a lecturer in ACT schools. During the winter months he was employed under contract by ACTION buses.

6. His marriage had ended in 1983, and in 1986 he formed a relationship with Miss Underwood and became engaged to be married to her. In early 1989 his health and general fitness were excellent.

7. The plaintiff was injured when the motor cycle he was riding collided with a car driven by the defendant near the intersection of Girrahween and Lonsdale Streets, Dickson. The facts surrounding the accident are in dispute.

8. Girrahween Street runs east from its intersection with Northbourne Avenue. Its first intersection east of Northbourne Avenue is with Mort Street, which runs south towards Civic. The next intersection is with Lonsdale Street, which also runs south towards Civic. Both those intersections form a T with Girrahween Street, Haigh Park being to the north of it.

9. Between Northbourne Avenue and Mort Street, Girrahween Street is marked with three lanes, one for eastbound and two for westbound traffic. It is not a particularly wide street, and those lanes are relatively narrow.

10. East of the Mort Street intersection there are markings for only two lanes, but the west bound lane continues to be the same, relatively narrow, width. Part of the eastbound lane, however, is taken up by marked car parking spaces adjacent to Haigh Park, both between Mort and Lonsdale Streets, and to the west of Lonsdale Street.

11. At the intersection of Lonsdale and Girrahween Streets, there is a Caltex Service Station. There is at least one driveway giving access to it from Lonsdale Street, which can be seen clearly in the aerial photograph of the scene, Exhibit 4, although it is not marked on the location sketch Exhibit 1.

12. There are two driveways giving access to the service station on the southern side of Girrahween Street, which are clearly marked on Exhibit 1, although the westernmost one is obscured by shadow from trees in Exhibit 4.

13. From the centre of Lonsdale Street to the western side of that westernmost driveway in Girrahween Street is a distance of 30 metres, as shown on Exhibit 1.

14. The plaintiff's evidence was that at about 7.30 pm on 22 February 1989 he rode his motor cycle along Northbourne Avenue. He was going from the Olympic Pool to his home. In a statement he later made to a police officer he gave his then address as being in Dowling Street, Watson. The normal route to that address would be to make a right hand turn either at Wakefield or Antill Streets, according to my local knowledge.

15. The plaintiff's evidence was that as he went up Northbourne Avenue he realised he needed some petrol, so he turned right into Girrahween Street.

16. As he was travelling west in Girrahween Street, at about 20 kilometres an hour, a car came out of Mort Street, and almost collided with him. He had to brake suddenly and swerve to his left in order to avoid a collision.

17. The car accelerated east in Girrahween Street, and then pulled into the left hand side near the Lonsdale Street intersection. He continued on, because he intended to go to the Caltex Service Station for petrol.

18. As he approached the car it accelerated to turn right, whether into the Caltex Service Station or into Lonsdale Street he was not sure. It gave no indication of any intention to make a right hand turn. He sounded his horn, shouted, braked and tried to swerve to the right. The driver of the car attempted to swerve back to the left, but the plaintiff was unable to avoid a collision with the area of the right rear door of the car.

19. His estimate of the time for which the car had been stationary on the left side of the road was between 2 and 4 seconds.

20. He had been 30 to 50 metres behind when it first became stationary. He was then travelling at 10 to 15 kilometres an hour, because he intended to turn into the Caltex Service Station.

21. The defendant is a dental prosthetist, whose business premises were in 8 Lonsdale Street, Braddon. He had been at those premises during the day. In the evening he was joined by Mr Hussey, an accountant whose office was in the same building.

22. Towards 7.30 pm they left the building, and entered the defendant's car, a 1976 Rolls Royce Silver Shadow, which had been parked in Lonsdale Street.

23. He then drove north in Lonsdale Street, to the intersection with Girrahween Street, which was controlled by a give way sign. He needed petrol. He checked the price at the Caltex Service Station. He decided to buy petrol there. He stopped at the intersection. A motor bike went past. His evidence continued, "There was a motor bike down near the Northbourne Avenue end of Girrahween Street, just sort of coming there, miles away. Slowly started to proceed around the corner. My blinker was on, its on the left side of the car, going around slowly."

24. He intended to enter the service station from Girrahween Street. In his experience there was danger involved in entering it by making a right hand turn in Lonsdale Street, as cars could be coming from either direction in Girrahween Street to travel south in Lonsdale Street. He intended to use the driveway closer to the intersection.

25. His car came out of Lonsdale Street, the right turn indicator being activated. It was not necessary for him to straighten up, and his car continued on a curve, till the front right part of it was about 3 feet from the gutter of the driveway. He heard the noise of an impact. He did not know what it was. Then he saw that a motor cyclist had collided with him.

26. He denied as strongly as possible that he had come from Mort Street into Girrahween Street, or that he had stopped on the left hand side before commencing a right hand turn into the service station entrance.

27. The defendant's evidence was corroborated by Mr Hussey. According to him they travelled along Lonsdale Street to the intersection with Girrahween Street. To his recollection the defendant almost came to a stop at the intersection. He didn't see anything coming up Girrahween Street from the direction of Northbourne Avenue. After making the turn into Girrahween Street the car proceeded to turn into the first driveway of the service station. He could hear the right turn indicator operating.

28. During the course of the afternoon and evening both the defendant and Mr Hussey had drunk a considerable amount of alcohol. Police attended the scene of the accident. The defendant failed the screening test. At 8.15 pm the approved breath analysing instrument recorded a result of .170. My inference from the whole of the evidence is that they were both well affected by what they had drunk. Their recollection about details, and the accuracy of their observations, are both adversely affected by that finding.

29. Constable Ward was one of the officers who investigated the accident. On the Road Traffic Accident Report, which I assume he completed at or shortly after that investigation, the scene of the accident is recorded as "Lonsdale St at Girrahween St". V1 was the plaintiff's vehicle, and V2 the defendant's vehicle. The description of the accident was "V1 travelling east on street 1. V2 travelling east on street 1 moved to left of roadway and stopped. V1 then overtook V2 on right side V2 then turned right across front of V1."

30. The PCA report form records the relevant part of his conversation with the defendant as follows:
"Were you the driver of motor vehicle Rolls Royce Sedan Reg. No.

(NSW) NLH 073.
In which street were you travelling?--- Girrahween St.
In which direction were you travelling?--- Away from Northbourne
Ave.
Where did you start from?--- Lonsdale St, Braddon.
What time did you leave?--- 7.20 pm.
Where were you going?--- Home.
I can smell intoxicating liquor on your breath. What have you
been drinking?--- Beer.
How many drink (sic) have you had today?--- 2.
What size glasses were they?--- Cans.
What time was your first drink?--- 6.45 pm.
What time was your last drink?--- 7.15 pm.
Where were you drinking?--- Lonsdale St.
Are you ill?--- No.
Have you been involved in an accident?--- Yes.
Where?--- Just here (Girrahween St/Lonsdale St).
When?--- About 7.25 pm."

31. The statement of facts that he later prepared for use in a possible prosecution recorded the effect of his conversations with the parties as follows:

"At the collision scene I saw a Rolls Royce sedan (NSW)NLH073, this
vehicle had sustained minor accident damage to it's (sic) right
side, and contained the driver and one passenger at the time of the
collision.
I also saw a Yamaha motorcycle (ACT)33657, this vehicle had
sustained minor damage to it's (sic) left side, and only had the
rider on it at the time of the collision. Both vehicles had been
moved prior to Police arrival.
I then spoke to the driver of the Rolls Royce sedan, Mr. Graeme
Bruce PILL the defendant now before the Court who stated that
he was travelling in a (sic) easterly direction on Girrahween
(sic) Street, causing him to brake slightly. He then stated that
the Rolls Royce moved to the left side of Girrawheen (sic) Street
and almost stopped, so he travelled around the right side of the
Rolls Royce, when it suddenly turned right in front of him leaving
him no time to avoid colliding with it."

32. Constable Ward later took a statement from the plaintiff in his official field book. A typed copy is in evidence, dated 14 February 1990, almost a year after the accident. It was to the same effect as the plaintiff's evidence.

33. It is clear that the impression gained by Constable Ward from what the plaintiff told him at the time was that the defendant came out of Lonsdale Street, not Mort Street. There is no reason why the defendant would have driven in Mort Street. There was every reason why he would be expected to drive down Lonsdale Street.

34. I am satisfied therefore that the evidence given by the plaintiff about the defendant coming from Mort Street, accelerating with screeching tyres and swerving as it went east in Girrahween Street, is not in accordance with the facts. That finding reflects adversely upon the accuracy of the plaintiff's version, no matter what the reason might be for the variance between that version and reality.

35. The plaintiff, the defendant and Mr Hussey all seemed to me to have a desire to put the best possible appearance on their evidence in the light of their own interests, or, in Mr Hussey's case, his friendship with the defendant.

36. There were no other witnesses to the accident.

37. In that state of the evidence I find myself drawn to relying heavily upon the inherent probabilities.

38. It is most probable that the defendant, with Mr Hussey as his passenger, drove north in Lonsdale Street. At about the time that he arrived at the intersection with Girrahween Street he formed the intention to buy some petrol at the Caltex Service Station on his right.

39. He at least paused at the give way sign, and then proceeded to make a right hand turn into Girrahween Street. When he began that turn the plaintiff was some distance to the west, travelling east towards the intersection.

40. I see no reason to doubt his evidence that he also intended to buy petrol at the same service station. His speed was therefore probably moderate.

41. His speed and his distance from the intersection were such that there was no danger of a collision between him and the defendant as the defendant left the give way sign and began his turn.

42. The visibility from the intersection is such that the plaintiff ought to have been visible to the defendant as he began to make the turn, and I think he probably did see him, as he said he did, at that distance which did not then pose any danger.

43. I am prepared to accept his evidence, and that of Mr Hussey, that as he began the turn his right hand indicator was activated.

44. Since I think he probably had already formed the intention of entering the service station, I can perceive no reason why he would have pulled over to the left side of Girrahween Street and come to a stop. I do not accept the plaintiff's evidence that he did so.

45. I think that from the time he began the turn the defendant intended to move to the point in Girrahween Street from which it would be convenient to make the right hand turn into the service station driveway, and that he proceeded to do just that.

46. I have inspected the scene with counsel, and noted the distance from the centre of Lonsdale Street to the western edge of the driveway. I do not think that the course of the defendant's vehicle was one continuous curve. I think it more likely that for a short distance, perhaps only one or two car lengths, it proceeded east before beginning the turn towards the driveway. The defendant says that did not happen, but I place more weight on my observations than on his recollection.

47. It is possible that when he straightened up for that short distance the right hand indicator was cancelled. It is possible that it continued to operate. I am unable to choose between those two possibilities. I do not think that it matters very much when considering the nature and extent of any negligence on the defendant's part.

48. The defendant would have been moving very slowly, both because of the weight of his vehicle and because of the short distance he intended to travel. The plaintiff was probably travelling faster, though still at a moderate speed.

49. Even if the defendant thought that his indicator was still flashing after he had straightened up, it would be understandable that a cycle rider in the plaintiff's position might infer that the defendant's vehicle had completed its turn, and that for some reason the indicator had not cancelled. For the cyclist, the shorter the distance that the car travelled east before beginning to turn right again, the more unexpected that manoeuvre would be.

50. The defendant was aware that the plaintiff was travelling east behind him. He gave no consideration to his position or speed after his initial cursory observation of him.

51. To make a further right turn so soon after turning into Girrahween Street was an obviously unusual manoeuvre, which needed to be made with some care for a person approaching as the plaintiff was.

52. It is not asking much to require the defendant to look, to see where the plaintiff was, before beginning or continuing his turn towards the driveway. He did not look. Had he looked he might well have seen the possibility of a collision. He was travelling slowly. He could have stopped almost instantaneously had he seen the plaintiff overtaking. His failure to look was therefore a failure to take reasonable care for the safety of the plaintiff, which was a cause of the collision.

53. There will therefore be judgment for the plaintiff.

54. The plaintiff's was the overtaking vehicle. Although the defendant's manoeuvre was unusual and unexpected, it was undertaken at a slow speed. The plaintiff was obviously travelling faster, even though he did intend also to turn right into the service station.

55. The onus being on the defendant, I am not prepared to find that the defendant's indicator was still flashing as it began to make the turn towards the service station. However, I am satisfied that the defendant had moved some distance into the turn. At his slow speed, there was a time during which the plaintiff, looking ahead, should have seen that he was turning. He was on a manoeuvrable motor cycle, travelling at a moderate speed, and intending also to enter the service station. Another cause of the collision was therefore, in my opinion, the failure of the plaintiff to keep the defendant's car under proper observation. The plaintiff's damages will therefore be reduced on account of his contributory negligence.

56. I would apportion responsibility for the plaintiff's damage 60% to the defendant and 40% to the plaintiff.

57. At the time of the accident the plaintiff was wearing a helmet, leather jacket, riding boots and gloves and jeans. As a result of the collision he claimed that he landed on his back on the road with the bike on top of him. His head struck the road with some force, and he believes he lost consciousness for several seconds. He was immediately aware of extreme pain in his left leg. There were also numerous cuts and abrasions to his fingers, elbows, left ankle, left forearm, chest, back and right shin.

58. The defendant said that when he got out of the car and went to him the plaintiff was sitting in the gutter with his shoe off and his helmet on. The plaintiff remembered someone helping to get his helmet off. I do not think that any differences between their versions are really material. What is remarkable is the variety and seriousness of the consequences that the plaintiff attributes to what was, on any version, a collision at relatively low speeds.

59. The plaintiff was taken by ambulance to Royal Canberra Hospital, where x-rays were taken and he was kept under observation for several hours before being allowed to return home. The x-rays were normal, although there were some degenerative changes noted at C5/6. Upon returning home he fainted in the shower and was advised to return to the hospital, which he did where he was again placed under observation overnight. He vomited on a number of occasions that night.

60. The plaintiff consulted Dr MacIver, his general practitioner, 2 days after the accident. At that initial examination he presented with multiple abrasions, a full range of intervertebral movement in the neck, and tenderness over C2 and C3, especially over the right facet joint at C3. He had also experienced constant headaches and associated nausea and occasional vomiting, and constant buzzing in his head which had kept him awake for two nights previously.

61. On review by Dr MacIver on 6 March 1989 he was still experiencing intermittent headaches and buzzing, together with shortened attention span and blurred vision. His sleep patterns were disturbed. A CT scan was arranged which revealed no organic damage. However, it seems clear to me that the plaintiff did suffer some cerebral contusion. Naprosyn was prescribed. However it provided no relief to the plaintiff's symptoms.

62. In his report dated 10 May 1989 Dr MacIver stated that the plaintiff's condition had not yet stabilised, and it was too early to give a prognosis. The plaintiff did not feel well enough to return to work until late September 1989. During that time, however, he returned to the U.K. to see his father, who was dying, and spent four months there. I think that he would have done so even if he had not been injured.

63. The plaintiff was next seen by Dr MacIver on 22 September 1989, around the time of his return to work. He had just returned from his trip to the United Kingdom. He was referred for physiotherapy, which provided some relief. He was also referred to Dr Vance, E.N.T. specialist, whom he saw on 20 December 1989 and 21 February 1990. Tests conducted on those dates were considered to be normal. Dr Vance did not think there was any physical basis for his continuing complaint of giddiness, but he thought that the tinnitus might continue.

64. Dr MacIver recommended acupuncture, however it provided no relief to the plaintiff's symptoms.

65. In May 1990 he began to receive twice-weekly massages from the Eleebana Total Beauty Centre, which he found of great assistance in relieving his stress levels. These continued until June 1991.

66. He resigned from the Royal Life Saving Society in May 1990 at the request of the Executive Director, Mr Geoffrey McGibbon, following complaints made against him. The plaintiff had by this time begun to drink heavily. Mr McGibbon gave evidence about the marked change in the plaintiff's efficiency after the accident.

67. The plaintiff resigned from his job at the Dickson Swimming Centre in June 1990, having been advised by Dr MacIver's locum that he should rest to give his symptoms an opportunity to subside. He had, until that time, been experiencing persistent headaches which lasted several days. He was also experiencing changes to his personality, such as irritability, frustration, forgetfulness and decreased attention span. The tinnitus was still present.

68. Dr MacIver found tenderness over the right facet joint at C2/3, palpation of which produced headache, so he referred the plaintiff to Dr Nelson.

69. On 17 August 1990 the plaintiff commenced work as Manager of the Oasis Leisure Centre. He did not cope well with the stress associated with the responsibility of that position, and he eventually resigned in June 1992. He remained unemployed until commencing as a storeman for Vulcan Chef, his present occupation, in May 1993.

70. The plaintiff received treatment from Dr Nelson, specialist in musculo-skeletal problems and chronic pain management, between July 1990 and May 1992. The early sessions involved cervical manipulation which was successful in providing relief from the headaches and resulted in a return to normal sleeping patterns. The headaches had returned by mid-1991. Manipulation at this time provided further relief. It was noted in Dr Nelson's report of 30 June 1992 that the plaintiff's pain was having major emotional impact on his life. Whereas before the accident the plaintiff had been extremely fit and active, he had been forced to give up his sporting activities because of the pain they caused. The plaintiff's difficulty with premature ejaculation, to which he had finally admitted to Dr MacIver in October 1991, and the irritability caused by the tinnitus and frequent pain, was causing problems in his relationship with his partner. Dr Nelson makes the following comment:

"Roy has many emotional problems which are contributing in large
part to his symptoms. It is not possible to separate which are
physical and which emotional, as they are all interwoven and
interdependent. The psychological symptoms may well be the result
of the accident and sequelae over the years i.e. Tinnitus
Headaches, loss of sporting activities, and thus his perceptio
(sic) of himself as a man."

71. Dr Bridger, ear, nose and throat specialist, examined him for the defendant on 12 March 1991. He thought that the tinnitus was related to the accident, but could not find any evidence of associated hearing loss of hearing or labyrinthine damage.

72. He was referred to Dr Linda Welberry for treatment of his premature ejaculation, and was seen by her on 5 November 1991. She did not do a physical examination as this had already been done by specialists. She concluded that the plaintiff's sexual problems were a result both of the pain arising from his injuries and the loss of self esteem caused by the loss of the plaintiff's job and his inability to undertake the physical activities in which he had previously been involved. She referred him to Dr Chris McMahon, impotence specialist, for counselling.

73. Dr McMahon concluded that the plaintiff's sexual problems were directly attributable to the accident, resulting from the anxiety and depression he was experiencing as a result of his chronic pain and inability to work and remain physically active. He recommended that the plaintiff undergo sex therapy, a course of treatment with an extremely high success rate. Given that there were no physical injuries to the plaintiff's lower back or genital area Dr McMahon saw no reason why such a course of treatment would not be successful in the plaintiff's case.

74. In his final report of 12 May 1992, Dr MacIver listed the plaintiff's major complaints as follows:

"1. Uncomfortable, right-sided neck pain which radiated into his
right shoulder blade. This was a recurring feature and it occurred
about every ten days or so. It was also associated with a headache.
He could get relief from this headache if he could get his neck
manipulated or his neck massaged. He had developed a technique
"self-manipulate" with stretching exercises.
2. He still had a problem swimming and ten laps was his maximum. He
had been trying to enter in Triathlons prior to his accident and
had been swimming up to 100 laps. However, because of neck pains
and headaches he had been unable to do this.
3. Running continued to be a problem for him and he could only do
about one kilometre at the most without precipitating neck pain
and associated headache.
4. He felt that since the accident his life style had been
affected especially with his ability to exercise.
5. Premature ejaculation for which he is seeing a Psychologist. He
had been advised that this was probably anxiety-related as was his
fear and anxiety regarding riding motor bikes.
6. He had problems with irritability and loss of patience. In
particular, when dealing with the general public and for this
reason he had taken six weeks off work.
7. He continued to complain of head noise (tinnitus) which seemed
to be worse on the right side of his head compared to the left.
8. He was complaining of pain in his right big toe over the
metatarso-phalangeal joint. This looked to me as if he was
developing osteoarthritis in his toe joint and an early hallux
valgus deformity."

75. His condition was reviewed by Dr David McGrath, consultant in occupational medicine, in June 1992. At that time he complained of pain in his neck and discomfort extending into the right posterior shoulder region, headaches which were severe at times, tinnitus, blurred vision and loss of colour vision when running or fatigued, poor concentration and memory lapses, irritability, intolerance and sexual dysfunction.

76. Dr McGrath considered that his neckache and headaches could be the result of structural changes in the cervical region, and would be long lasting. He expected the tinnitus to be permanent. There was no place for surgical intervention.

77. He was seen by Dr Saboisky, consultant psychiatrist, for the defendant on 29 October 1992. His report does little other than relate the facts as told to him by the plaintiff. He noted the plaintiff's mental and physical condition, and did not question the link between the plaintiff's psychological problems and his inability to continue the physically active life he led before the accident. His prognosis was that the plaintiff suffered no serious psychological problem, and that his sexual problems were of the type easily treated by a competent sex therapist.

78. He was re-assessed by Dr McGrath on 11 May 1993. He found ongoing partial disability, both physical and psychological. There had undoubtedly been some neck damage, which caused the recurring neckaches and headaches. The larger disability, however, was psychological, with an apparent personality change. As a result the plaintiff had been compelled to give up his work lecturing for the Royal Life Saving Society and had broken off his engagement.

79. He was examined by Dr Andrea for the defendant on two occasions. At the first examination, on 22 February 1990, Dr Andrea could find no connection between the plaintiff's accident and his headaches, which he likened to migraine and attributed to tension. At the second examination, on 14 July 1993, Dr Andrea again found it difficult to associate the plaintiff's problems, both his general health and his sexual dysfunction, with his accident. In his opinion the plaintiff has "numerous psychological and social problems" which are the root cause of his pain and premature ejaculation. Dr Andrea is a surgeon.

80. Dr Welberry saw him again on 7 May 1993. She thought there had been little improvement since November 1991, and was not optimistic about the prognosis.

81. The plaintiff was seen by Dr Katherine Lubbe, psychiatrist, on 25 August 1993 at the request of Dr Welberry. She in turn referred him to Beth Sedden, therapist with the Marriage Guidance Council. She continued to see the plaintiff in the role of an "interested bystander" to ensure that therapy was progressing as well as it could.

82. Ms Seddon saw the plaintiff 12 times between October 1993 and April 1994. At the intitial consultation it was noted that in addition to the premature ejaculation, the plaintiff was depressed, anxious about the state of his relationship, socially isolated and suffering from chronic pain. Each problem was seen as compounding on the other.

83. The course of treatment with Ms Seddon was largely successful. The plaintiff resumed his relationship although still experiencing premature ejaculation and, in her opinion, was becoming less depressed and experiencing greater control over his life. Counselling had ceased by mutual agreement.

84. He was seen by Stephe Jitts, audiologist, in January 1994, for assessment of his tinnitus. Testing showed no hearing damage and middle ear function was normal. Mr Jitts recommended a tinnitus masker which gave some relief. In Mr Jitts' opinion the tinnitus is a result of the plaintiff's neck problems and headaches.

85. Dr Welberry received reports from Dr Lubbe, Ms Seddon and Mr Jitts. The last consultation on which she reported was on 19 April 1994. He was on antidepressant medication, but felt much better. She commented that he had improved greatly, so far as his depression was concerned, and hoped that the improvement would be sustained, although there is always a possibility of a relapse.

86. Counsel for the defendant contested the proposition that all the plaintiff's complaints were related to the accident. None of the doctors were required for cross examination. None of the defendant's doctors categorically deny the link, although they do not acknowledge it. Many of the plaintiff's doctors attribute his troubles to the accident. In doing so they relied to a great extent on the accuracy of what he was telling them, but I think that the pattern of his complaints is so consistent and so obviously accepted as genuine by so many treating doctors that I accept that he genuinely felt what he described to them.

87. I accept his evidence, and that of Mr McGibbon, that he showed no sign of his disabilities before the accident. On the balance of probabilities I find that his neck pain, headaches, tinnitus, depression and sexual dysfunction were caused by the accident. I do not attribute the condition of his big toe to it.

88. He intends to resume consultations with Dr Lubbe and Mrs Seddon. He continues to take Anafranil. He has resumed his relationship with his partner. Their son was born in October 1994. I think that his psychological condition will continue to improve. Physically he is very fit in a muscular sense, but his endurance is limited by headache brought on by lengthy exertion. He is not lecturing for the Lifesaving Society, but he is Chief Examiner, and I think that as his condition improves he will resume full activity with the Society.

89. For his pain and suffering I would award $35,000, of which $5,000 would relate to the future. Interest on the past component is $3,900.

90. No issue was raised about the out of pocket expenses claimed in the Statement of Particulars, totalling $10,914, which the plaintiff, in general, paid as they were incurred. Half the interest on that sum according to the practice direction if $5,310. I allow $5,000 for interest on the out of pocket expenses.

91. During the financial years before the accident the plaintiff had earned $15,991, $16,527 and $18,404 net. That pattern, and his earnings of $14,931 net for the year ended 30 June 1989, the year of the accident, is consistent with the claim made in the particulars that at the date of the accident his earnings were of the order of $387 a week.

92. The plaintiff was absent from work from the date of the accident till 25 September 1989, but for 4 months of that time he would have been overseas to see his father in any event. I allow $5,000 for loss of income during that period.

93. When he returned to work in September 1989 he negotiated a fee of $750 a week gross. He was able to work the time necessary to earn that for about 6 weeks. He then had to reduce his hours, so that he earned only $500 a week, gross. He also cut down on his lecturing. The loss claimed at paragraph 6(b) of the particulars is for the whole of the period from 25 September 1989 to 27 April 1990. The evidence supports a period of 25 weeks. I allow $3,575 for loss of earnings during that period.

94. The evidence supports the claim made for $6,375 for the period 25 May 1990 to 17 August 1990.

95. No claim is made for the next period, 17 August 1990 to 18 June 1992.

96. In June 1992 he stopped work because of pain and stress. He remained off work until the end of April 1993. I am not persuaded that he was incapable of any work at all during that period. However, his net income in 1991/1992 was $31,587, and in 1992/1993 it was $6,797. I think that an award of $20,000 in respect of that period is justified.

97. On 4 May 1993 he started work as a storeman at Vulcan Chef. He has continued with some work for the Royal Life Saving Society. The claim at paragraph 6(b) of the particulars is based on a reduction of earning capacity of the order of $200 a week. A comparison of his net income for the 1990/1991, 1991/1992, 1992/1993 and 1993/1994 tax years tends to support that claim. I allow $23,250 in respect of the period from 4 May 1993 to date.

98. The total loss of income to date is $58,200.

99. Half the interest on that sum calculated according to the practice direction is $26,575. The loss has not been spread evenly over the whole period. I allow $25,000 for interest on the past loss of income.

100. I do not think that his loss will continue at that same rate into the future. He would not have continued with all his lecturing activities till age 65. In any case, I think his health will improve substantially. The present value of a loss of $200 a week for 5 years is $48,892. As a matter of discretionary judgment I would award $50,000 for future loss of income.

101. The total of a full award for his personal injury is made up as follows:

Pain and suffering $35,000
Interest 3,900
Out of pocket expenses 10,914
Interest 5,000
Past income loss 58,200
Interest 25,000
Future income loss 50,000
$188,014

102. That sum reduced by 40% on account of his contributory negligence is $112,808.

103. There was no real contest about the cost of repairs to the two vehicles, namely $3,393.11 for the Rolls Royce and $699.40 for the motor cycle. The plaintiff would therefore recover 60% of $699.40, namely $419.64, while the defendant would recover 40% of $3,393.11, namely $1,357.24. The net sum due to the defendant for property damage is therefore $937.60.

104. I therefore find that the plaintiff is entitled to an award of $112,808 for personal injury, and the defendant is entitled to an award of $937.60 for property damage.

105. I grant liberty to the parties to apply as to the form in which judgment should be entered up to give effect to these findings.