Aarts v Tillack & Anor [2000] QDC 321

DISTRICT COURT OF QUEENSLAND CITATION: Aarts v. Tillack & Anor [2000] QDC 321 PARTIES: STANISLAS AARTS (Plaintiff) v. GLENN J TILLACK (First Defendant) & SUNCORP METWAY INSURANCE LIMITED (Second Defendant) FILE NO/S: D300 of 1999 DIVISION: PROCEEDING: Trial ORIGINATING COURT: District Court Maroochydore DELIVERED ON: 3 November 2000 DELIVERED AT: Brisbane HEARING DATE: 27 September 2000 JUDGE: McGill DCJ ORDER: Judgment that the second defendant pay the plaintiff $82,374 CATCHWORDS: DAMAGES – personal injuries – economic loss – effect of entry into partnership after accident – neck – 3% whole person Malec v. J.C. Hutton Pty Ltd (1990) 169 CLR 638 – applied Watts v. Rake (1960) 108 CLR 158 - applied Purkess v. Crittenden (1965) 114 CLR 164 - not followed COUNSEL: M. Grant-Taylor SC for the plaintiff D.C. Andrews for the second defendant SOLICITORS: Boyce Garrick for the plaintiff Quinlan Miller and Treston for the second defendant [1] By this action, the plaintiff claims damages for injuries received by him in a motor vehicle accident on 14 December 1998, when his vehicle was struck by another, with some force, as a result of collision between that other vehicle and a third vehicle: p.6. Liability was conceded on behalf the second defendant and it remains to assess the plaintiff’s damages. The principal issue is as to economic loss. -- 1 of 14 -- 2 [2] The plaintiff was born on 14 November 1955 and is now 44 years of age, having been 43 at the date of the accident: p.5. He left school at 15 and completed an apprenticeship as a painter with his father, and has worked in that trade ever since. He was not in employment at the time of the accident, but worked as a sub- contractor to a building company. [3] There was some superficial injury to the plaintiff’s elbow and his shoulder in the accident, but he did not realise that anything more serious had occurred until the following day when he went to work; halfway through painting a ceiling he had to stop because of pain in his neck: p.7. On 17 December he consulted a general practitioner who recommended physiotherapy, which he undertook for some 10 months, and also underwent acupuncture, but said that these did not provide relief: p.8. Medical Evidence [4] I do not have a report from the general practitioner first seen; the plaintiff consulted a general practitioner, Dr. Williams, on 14 July 1999, complaining of bad headaches and neck pain which he attributed to the subject accident: Exhibit 5. At that stage there was tenderness over the posterior cervical muscles and the left and right trapezius muscles, and restriction of movement, especially extension and rotation left and right. Acupuncture and low level laser therapy was prescribed, providing temporary relief, but the pain and discomfort continued. The plaintiff was referred to a Mr. Warren for counselling, and diagnosed as suffering from depression, so that in September 1999 he was commenced on anti-depressants which helped him deal with the pain. [5] The plaintiff was seen on 17 August 1999 by Dr. Curtis, an orthopaedic surgeon, for the purposes of a report: Exhibit 1. At that stage there was complaint of pain in the back of the neck, radiating to the upper left shoulder and sometimes to the right side as well; the pain also radiated to the base of the skull behind the ears. It was constant to a greater or lesser extent, aggravated by driving, performing overhead work, and attempting to lift or carry heavy objects. Medication was occasional Panadol tablets. There was an awareness of considerable stiffness in the neck, and some difficulty in sleeping, and some tingling in two fingers of the right hand with prolonged holding of a paint brush. Dr. Curtis also detected tenderness around the neck and restriction of movement, particularly extension and rotation, although there was a full range of movement in both shoulder joints. X-rays had been taken on 17 December 1998 which showed minor degenerative changes through the cervical region with disc space narrowing at the C5-6 level, but no evidence of bony injury. There were also minor age related degenerative changes in the thoracic spine. [6] Dr. Curtis thought that the plaintiff had sustained a soft tissue injury to the cervical spine in addition to aggravating a pre-existing asymptomatic degenerative disorder, which had left him with a permanent condition amounting to 5% impairment of a whole person attributable to the accident. He thought that the plaintiff’s current -- 2 of 14 -- 3 condition represented a 5 to 10 year acceleration of what would have been the natural progression of the degenerative changes (and see p.48). He thought the plaintiff was having difficulty in working as a painter and would need to cease that occupation in the near future, but would be capable of lighter duties, such as selling paint, until the normal time of retirement. Dr. Curtis thought that the loss of the ability to work as a painter in the ordinary way had been brought forward by about 10 years because of this accident: p.48. If he could work as a painter without overhead or above shoulder work, and without heavy lifting, he would be able to continue that trade more or less indefinitely: p.49. [7] The plaintiff first saw Mr. Warren, a counsellor, on 31 August 1999. As at 17 September 1999, Mr. Warren reported (Exhibit 4) that counselling had focused on improving coping strategy so as to address an explosive anger and problematic drinking, with some progress, and he anticipated an additional eight counselling sessions. It is not in dispute that it is appropriate to include in the damages the cost of counselling sessions with Mr. Warren. [8] On 25 January 2000, the plaintiff saw Dr. Boys, an orthopaedic surgeon, at the request of the defendant for the purposes of a report: Exhibit 6. The history given to Dr. Boys was similar to that given to me. Dr. Boys noted that the plaintiff also has some problems with the lower back dated from an incident on a building site in 1978, which has left him with intermittent mechanical low back pain which he told Dr. Boys he had learned to live with. The plaintiff also told me he had learned to live with his lower back pain, which was worse in the colder weather: p.26. There was a complaint of a constant ache at the base of the neck, extending into the trapezial muscles and to some extent into the right deltoid. It was aggravated by looking up when he worked so that he avoided painting ceilings, and there was difficulty in driving a motor vehicle for more than an hour or an hour and a half, or in fishing from a boat. On examination there was some tenderness from C6 to T2, and restriction of extension and some problems with rotation to the right with subtle restriction. Dr. Boys thought that the x-rays taken in December 1998 showed degenerative changes in the neck, and some in the thoracic spine, and that by January 2000 there was evidence of multi-level discal degeneration throughout the spine. Dr. Boys thought that the plaintiff suffered postural neck strain as a consequence of his disc degeneration, which had been aggravated as a result of the accident but he would have expected the underlying condition to have produced the same symptoms in any event within three to five years. The plaintiff was working as a painter with some modification in his work practices, and Dr. Boys was of the opinion that the plaintiff could continue to do that work in that way until normal retirement age. [9] The plaintiff was seen by a Dr. Todman, a neurologist, on 1 March 2000, for the purposes of a report: Exhibit 2. At that stage he was complaining of constant neck pain, fluctuating in severity from one side to the other of the cervical spine, depending on activity, and radiating to the shoulder girdles and to the interscapular region. Head turning aggravated the pain, particularly with extending his neck at work. He had difficulty at night and often woke with pain. He experienced headaches as well, occurring two or three times a week. The pain was affecting -- 3 of 14 -- 4 activities of daily living, and interfering with recreational fishing. On examination there was a reduced range of movement in all directions, including significant reduction in forward flexion. There was marked spasm and tenderness in the cervical spine in both trapezius muscles. Dr. Todman thought that the x-rays dating from December 1998 showed degenerative changes consistent with the plaintiff’s age. He felt the plaintiff was suffering from symptoms attributable to the accident, the soft tissue injury and possible damage to cervical facet joints or derangement of discs. The headaches were a muscular tension type. He thought the symptoms were stable, and produced a 15% permanent disability of the whole person which led to a permanent impairment of work capacity which was likely to reduce his working career by 10 to 15 years. This foreshortening was based on an assumed working life otherwise to 65: p.39. Dr. Todman thought it possible but not probable that the degenerative changes in the x-rays would have caused some symptoms relating to the neck in any event: p.35. This did not mean, however that there would not be some other occupation in which he could engage: p.37. Dr. Todman thought it reasonable for the plaintiff to require some 6 hours of domestic assistance per week, although this was a figure suggested to him rather than one he volunteered: p.39. I think it is fair to say that Dr. Todman really did not think that the indications of degeneration in the spine prior to the accident were very significant, and did not think that they were particularly likely to have had much effect on the plaintiff if this accident had not happened. [10] The plaintiff was seen by Dr. Weidmann, a neurosurgeon, on 9 May 2000 for the purposes of a report: Exhibit 3. The history recorded by Dr. Weidmann was somewhat different from that reported by the other doctors; it indicates that it was two or three days after the accident before the plaintiff felt that he could not continue because of horrific pain in the neck which caused him to visit his doctor. Because the other reports are essentially consistent, and consistent with the evidence of the plaintiff, I think this is more likely to be because of some error in taking the history on the part of Dr. Weidmann. The results on examination were similar to those observed by Dr. Todman. He thought X-rays of the cervical spine in December 1998 and January 2000 showed minor degenerative changes, as did x- rays of the lumbar spine in January 2000; x-rays of the thoracic spine in December 1998 showed multiple level degenerative changes, consistent with age. [11] Dr. Weidmann described the degenerative changes as not abnormal for his age, and thought it likely that there had been a soft tissue injury as a result of the accident. He was of the opinion that the plaintiff had suffered a 4% to 5% permanent partial impairment as a result of the injury, in addition to the effect of the pre-existing degeneration, and that he would now have difficulty with working as a painter, particularly working overhead but he could do work of a lighter nature. He thought the plaintiff would be able to continue to paint if he did not have to paint overhead: p.52. He did not think that the plaintiff required assistance with day to day activities. Dr. Weidmann thought it probable that the plaintiff had a slightly higher chance than other people in the population of developing degenerative change in the future, apart from the accident, and that problems with the neck in the future, apart from the accident, were quite possible, but he thought it hard to say that they were probable: p.42. Dr. Weidmann could understand that others could be of the opinion that the plaintiff would probably have had trouble anyway: p.43. He thought that -- 4 of 14 -- 5 any difficulties might have occurred over the next four to five years, and might have limited his activities as a painter, and he commented that it was not unusual for painters as they get older to develop back troubles and neck troubles and move into some other area of work, or team up with younger people to do the more difficult work: p.45. Analysis of Medical Evidence [12] The medical evidence contains disagreements about the state of the plaintiff’s neck prior to the collision, and disagreements as to the likely consequences to the plaintiff had the collision not occurred. The issue of the state of the plaintiff’s neck is one of existing fact, and it is to be resolved on the evidence on the balance of probabilities; what would have happened to the plaintiff’s neck had the accident not occurred is a hypothetical fact, and is therefore to be resolved by compensating the plaintiff for loss of the chance of avoiding neck problems, by reference to the range of possible outcomes: Malec v. J.C. Hutton Pty Ltd (1990) 169 CLR 638. The onus is on the defendant to show on the balance of probabilities that there was some relevant pre-existing condition of the plaintiff’s neck: Watts v. Rake (1960) 108 CLR 158. This has to be established by evidence; it is not sufficient to suggest the possible existence of a pre-existing degenerative conditions: Purkess v. Crittenden (1965) 114 CLR 164 at 168. In that passage, Barwick CJ, Kitto and Taylor JJ said: “It is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff’s present incapacity. On the contrary, it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (ie either substantive evidence in the defendant’s case or evidence extracted by cross- examination in the plaintiff’s case) which, if accepted, would establish with some reasonable measure of precision, what the pre- existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be.” [13] That, of course, was said prior to the exposition of the law in Malec v. Hutton (supra) as to the correct approach to hypothetical facts. In Malec the majority pointed out at p.643 that: “Questions as to the future or hypothetical effect of physical injuries or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high – 99.9% - or very low - .1%. But unless the chance is so low as to be regarded as speculative – say less than 1% - or so high as to be practically certain – say over 99% - the court will take that chance into account in assessing the damages. Where proof is necessarily unobtainable it would be unfair to treat as certain a prediction that has a 51% probability of occurring, but to ignore altogether the prediction which has a 49% probability of -- 5 of 14 -- 6 occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. … The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.” In that case the court went on to conclude that the plaintiff was entitled to damages for a condition which was the direct result of the defendant’s negligence, but that: “Those damages must be reduced, however, to take account of the chance that factors, unconnected with the defendant’s negligence, might have brought about the onset of a similar neurotic condition”. In a similar way damages for care and attention provided by his wife were reduced because of the chance that other factors would have necessitated similar care and attention. [14] In my opinion, the effect of this is to make at least some of the language in Purkiss v. Crittendon no longer applicable. It is not a matter for the defendant to show with some reasonable measure of precision what the future effects of the pre-existing condition were likely to be; the defendant will discharge the onus upon it by showing that there was a chance of at least one percent that the pre-existing condition might have brought about a situation which was relevantly similar anyway. It is then a matter for the court to make an assessment of the extent to which the certain injury which the plaintiff suffers following the accident leaves him worse off than the position he was otherwise in where he might or might not have had relevant problems anyway. [15] Two issues on which the doctors differed were whether at the time of the accident the plaintiff had degeneration in his cervical spine which was greater than was to be expected for a person of his age anyway, and what the likely consequences were to the plaintiff’s neck if the accident had not happened. The former is a matter of existing fact; the doctors differed as to their interpretation of the x-rays, and that difference has to be resolved by preferring the evidence of some witnesses over that of others. But the approach when assessing the hypothetical consequence apart from the accident is, in my opinion, different; because these are, as the High Court has pointed out, not susceptible of scientific demonstration or proof, it is appropriate for the court to make the best estimate it can, and the court is entitled to give weight to competing medical opinion when arriving at that estimate. The fact that the issue is one on which the specialists differ justifies some caution in the approach of the court, but in my opinion it is appropriate in such circumstances to give due weight to the competing opinions, unless in the particular case there is good reason for discounting or disregarding the evidence of a particular doctor, for example, because that doctor appears to have been operating under some misunderstanding as to the facts, or for some other specific reason. Unless an opinion is disregarded or given less weight on that basis, however, it is not in my opinion a matter of finding one opinion or group of opinions was or were right, but -- 6 of 14 -- 7 rather making an assessment which gives appropriate weight to the conflicting views, because the point is one on which experts differ. [16] Applying that approach to the present case, Dr. Curtis and Dr. Boys both thought that there were degenerative changes which were greater than were indicated for the plaintiff’s age. Dr. Todman thought that the degeneration was no more than was to be expected for someone of his age. Dr. Weidmann said in his report that the degenerative changes were not abnormal for his age, although his concession in oral evidence that the plaintiff had a higher chance than other people in the population of developing degenerative change in the future, apart from the accident, seems inconsistent with that, and suggests that the plaintiff’s degeneration was worse than was typical for his age. In view of this, I think the weight of the medical opinion favours the view that the plaintiff did have greater than normal degeneration in his neck prior to his accident, so that he had a higher chance than is typical for his age of neck problems apart from the accident. [17] In terms of his prognosis had the accident not arisen, Dr. Boys was the most pessimistic, and Dr. Weidmann was the most optimistic, since he did not think it probable (as distinct from possible) that the plaintiff would have developed problems with his neck in the future anyway. Dr. Todman’s view was similar, but being based on the proposition that on his assessment the plaintiff did not have abnormal degeneration of his neck, involves no more than saying that it is part of the natural aging process for necks to develop some degeneration and that there is a possibility with any neck that there would be problems with it. That is a useful thing of which to be reminded, but in circumstances where his opinion was based on an interpretation of the x-rays which I have rejected as being against the weight of medical opinion, I think that it is appropriate for me to give less weight to his opinion. [18] The range of opinion is still wide, but overall I think that the opinion expressed by Dr. Curtis reflects what might be described as the middle or average position. Even Dr. Curtis’ opinion was not a precise forecast, and ultimately I have to make a specific award and identify the basis on which I am making it. Clearly what might have happened apart from this accident is not something which can be known with precision, and possibilities range from a neck which was symptom free for the balance of the plaintiff’s life to a neck which developed significant problems anyway fairly soon after the accident happened. In theory it may be possible to track over time the changing probability of problems with the neck having arisen by that point in time, and in that way to subject the issue to further mathematical analysis. But that is inappropriate, not only because of the warning by Brennan and Dawson JJ in Malec that “damages founded on hypothetical evaluations defy precise calculations”, but also because the evidentiary basis for such a degree of precision is wanting, and because the process of degeneration might not have produced the same neck symptoms as the plaintiff has now. [19] A practical approach to the assessment of damages has to be adopted, and in the light of the evidence in this case, that is probably best done by assuming that, for a -- 7 of 14 -- 8 particular period after the date of the accident, the chance of the plaintiff’s having problems apart from the accident was nil, and that after that period the chance of the plaintiff’s having problems apart from the accident of more or less the same effect as his current problems was 100%. In other words, that the effect of the accident was to accelerate by that period the natural progression of his degenerative condition. Obviously once this approach is adopted, the various uncertainties must be reflected in the selection of the appropriate period of acceleration; once that period has been determined, the assessment of damages follows in a fairly straightforward fashion. [20] In the light of medical evidence and taking into account the matters to which I have referred, I think on the whole that the appropriate approach is to allow the plaintiff a period of acceleration 7½ years from the date of the accident. That means the full amount of past loss is attributed to the accident, something which theoretically involves a small overcompensation, and the plaintiff should be allowed future loss in respect of the period to June 2006. In terms of the effect on the plaintiff’s work, this takes into account his back problems also: p.20. Assessment [21] With regard to pain and suffering and loss of amenities, the plaintiff has been left with continuous but fluctuating neck pain, which has until now been aggravated by the plaintiff’s continuing to work. As I think it likely that the plaintiff will change his employment in the future to something lighter, hopefully his neck will have more opportunity to settle. I accept that the pain has reduced the plaintiff’s enjoyment of life (p.59), and interfered with his fishing (p.15) and his ability to do things around the house. Hopefully the latter difficulty will also be eased once he is not working as strenuously. In all the circumstances, I assess damages for pain and suffering and loss of amenities in the sum of $20,000 of which I apportion $10,000 to past loss. This will carry interest at 2% for 1.9 years. Past Economic Loss [22] The plaintiff has been, since the accident, continuing to work as a painter, because of economic necessity: p.9. He has however had difficulty with some parts of this work, particularly work above shoulder height (p.8) or with lifting and carrying (p.10), and can no longer do external painting (p.8), because in the particular area where he works that effectively means painting under eaves which involves too much looking up: p.9. He is able to paint interiors with a spray gun, which he has modified so as to reduce the extent to which he has to look up in order to do this, and can paint ceilings only by using this method; if he has to use a roller or a brush it is too painful. Nevertheless, he is getting, I accept, more pain than he would otherwise get because he has persisted with his work, and that is a factor properly taken into account when assessing damages for pain and suffering. -- 8 of 14 -- 9 [23] The plaintiff has been able to get all the work he needs since the accident (p.8); presumably the building company for which he works remains satisfied with the results that are produced. There has, however, been to some extent a change in the way he has worked, apart from the matters to which I have referred. For some time before the accident, the plaintiff was in a relationship with a Ms. Barnett, a woman with whom he had lived for a time in Darwin before coming to the Sunshine Coast in 1998: p.50. She had previously been a disabled carer, but she had begun to work in the painting business, and by the time of the accident she was doing gapping and sanding and other work while he did the spraying and the rolling; she also did the bookwork: p.52. She has no formal qualifications as a painter, but has been taught by the plaintiff: p.24. Since the accident she has done more of the physical work in the business: p.53, p.13. [24] The plaintiff does not believe he will be able to continue working as a painter, partly because he has been told that if he continues to paint his neck will never get better: p.10. He intends to try to get some lighter work, perhaps in North Queensland, where the warmth may be better for his neck: p.26. In my opinion, what has happened is the plaintiff has been pressing on with his painting in spite of the adverse effect this has had on his neck, but he really feels that this is beyond him, at least when working with the intensity with which he is working at the moment. Getting lighter work would reduce his pain level, and his ability to cope, but it would no doubt cut his income. [25] The matter is complicated by the fact that with effect from 1 July 2000 the plaintiff has entered into a partnership with Ms.Barnett so that the income is now divided between the two of them: p.13. This is not like the situation sometimes met with, where there is a partnership between a couple but only one of them contributes the relevant labour by which income is earned by the partnership. In this case, both members are contributing labour to the partnership, and indeed they were both contributing labour to the income earned by the plaintiff prior to the partnership being created. The evidence was that the partnership was not entered into as a consequence of the injury suffered by the plaintiff, but rather on the advice of the plaintiff’s accountant, I expect with a view to minimising taxation: p.16. [26] The different case referred to above was considered by the High Court in Husher v. Husher (1999) 197 CLR 138. In that case, the partnership pre-existed the injury of the husband, who generated the entire income of the partnership, working as a block layer. Damages for loss of earning capacity were assessed on the basis of the income which the plaintiff would have received as a partner, rather than the income of the partnership, in line with earlier authority, but it was held by the High Court that this approach was incorrect. The joint judgment at p.147 said: “There are two critical elements. The first, the whole of the income of the partnership came from the efforts of the appellant and the exploitation of his earning capacity. As a matter of practical reality, his wife’s contribution to the income was negligible. Secondly, the partnership was a partnership at will. The appellant would very probably have chosen to maintain those arrangements, but that was his choice. If he chose to make some other arrangement concerning -- 9 of 14 -- 10 the fruits of his labour, effect would be given to that choice, whatever view his wife may have held. What the appellant would have had under his control and at his disposal but for the accident was, therefore, the whole of the fruits of his skill and labour. And it is, then, the whole of those fruits that he has lost”. [27] In this case also, the partnership was apparently at will, but the former element does not apply here; the income generated by the partnership was the fruit of the skill and labour of both persons, and indeed prior to the formation of the partnership, the income earned by the plaintiff was really the fruit of the skill and labour of both parties. It may be appropriate to regard the plaintiff’s contribution as more important, on the basis that he was the one with the training experience and reputation as a painter which were responsible for the success of the business, but there was evidence that she did more than her share of the work (p.53) and in my opinion the position is certainly different from that considered by the High Court in Husher. As the court said at p.148: “Deciding what value is to be ascribed to the loss of future earning capacity of an injured plaintiff requires close attention to the facts of each case. … The inquiries about what could the plaintiff have done in the workforce but for the accident, and what sum of money would the plaintiff have had at his or her disposal. Only when those inquiries are pursued can a judgment be made about what capital sum to allow as damages for the impairment of the plaintiff’s earning capacity. In doing so, regard must be had, of course, to all those contingencies of life that might reasonably be expected to affect the course of events in the future.” [28] The majority had earlier on the same page said: “No true comparison can be made between this case and that of a person expected to remain a member of a partnership not terminable at will, or a partnership in which persons other than the injured plaintiff considers significantly to the firm’s business activity, either by capital contribution or by contribution of skill and labour. … In at least some cases of the kinds mentioned, it may be that the plaintiff’s probable exploitation of earning capacity to generate income over which the plaintiff would have had control would be limited to the amount of the benefits the plaintiff could have expected to receive under the partnership arrangements (for as long as those arrangements were likely to have persisted) but each case will turn on its own facts. “ [29] Although the plaintiff’s contribution to the total physical effort of the partnership would have been greater had the accident not happened, it was not suggested that but for the accident the partnership would not have been formed, and it is I think a reasonable inference that the partnership was formed for tax minimisation reasons -- 10 of 14 -- 11 which would have been applicable in any event. In my opinion, therefore, the plaintiff’s loss in the particular facts of this case is properly assessed by reference to his loss of income from the partnership during the balance of the period of acceleration referred to earlier. The factors which justify the existence of the partnership are unlikely to go away, and the only significant risk of the partnership coming to an end had the accident not occurred would, I think, have been associated with the possible break up of the relationship. That remains a possibility, but there was nothing to indicate that it is more than that. Only a small allowance should be made for it. [30] Until now the only economic loss would be any income from work which the plaintiff would have done in addition to the work that has been done anyway, if he had not been injured. There was some evidence from the plaintiff that there was some work that he had not been taking as a result of the injury, such as painting exteriors or painting a pole home (p.24), and that on two occasions he engaged sub- contractors to do some of the more physically demanding work: p.14. Although the plaintiff seems to have been able to get plenty of interior work (p.24), in view of his description of the difficulties he has experienced at work, I think it is almost inevitable that he is less efficient than he would have been but for this injury: p.30, p.59. I think that some moderate allowance ought to be made for past economic loss on this basis. [31] The plaintiff’s taxable income declined in the 1998/1999 financial year to $26,754, from $33,068 the previous financial year, which was itself a decline from 1996/1997, a taxable income of $37,273. The income of the business increased to $35,177 during the financial year 1999/2000, although that was then divided between the two partners. It is very difficult to draw any precise conclusions from the changes in these figures. The plaintiff said he did not work for about three months in connection with his move from Darwin to the Sunshine Coast in August 1998: p.18-9. It appears that his earning rate in his first job after the move (Exhibit 13) was lower than his rate for the balance of the year (Exhibit 17) although this involves some assumptions. On the whole I accept that the plaintiff has lost some income in this way. [32] The calculation of past loss put forward on behalf of the plaintiff was, I think, unrealistic because it compared his actual income with the income which would have been earned on the assumption that that was no partnership, in circumstances where there was no evidence that the partnership had been caused by the accident and the injury. If the partnership had been entered into anyway, there would have been a decline in the personal income of the plaintiff in the 1999/2000 financial year anyway, and a hypothetical half share of the total net earnings of the business is the hypothetical figure with which the actual earnings of the plaintiff should be compared, although of course any damages would be assessed by reference to change in the income after tax rather than before tax. This matter is also complicated by the fact that to some extent the reduction in the plaintiff’s ability to work in the business has been made up for by increased physical work on the part of Ms. Barnett: p.16, p.52. That however is, in my opinion, not something properly allowed for by way of past economic loss, which should be limited to a modest -- 11 of 14 -- 12 global award, and I will allow the sum of $5,000. Interest should be allowed on that sum in the usual way. Future Economic Loss [33] With regard to future economic loss, I think it likely that the plaintiff will stop work as a painter. Although it may be that if he were working as part of a large gang, he may be able to arrange things so that he did less physically strenuous work, that would depend not merely on the availability of other people to do the more strenuous work, but on their willingness to accept that additional burden routinely. I accept that painters do sometimes work in larger gangs in this way, but there was really no evidence as to the practicability of the plaintiff’s being able to get such work, and I suspect it depends upon the ability of someone in the plaintiff’s position to organise a gang around himself, which the plaintiff has not done. There is, I think, really no reason to doubt that the plaintiff will do as he said he was going to do (p.26), that is give up painting and take up less demanding maintenance work, which is likely to be much less remunerative. There was, unfortunately but understandably, no precise figure as to what he might earn in such a position, but it is likely to be significantly less than he would have earned as a partner in the partnership. [34] I do not accept the defendant’s submission that there was a high likelihood of the plaintiff continuing to work as a full time painter until retirement age. On the basis on which I am assessing damages, what matters is whether he would have continued to work as a full time painter but for the accident until June 2006, and I am satisfied of that, and whether he will continue to work as a full time painter after judgment, and I think it quite likely that he will not, unless perhaps the relationship breaks up. Unless that relationship does break up, his future economic loss will reflect the difference between what he will earn as a maintenance man and what he would have earned as a partner in the painting partnership, something which I cannot calculate. I should also make some allowance for the possibility that, had the accident not occurred, the relationship might have broken up anyway, a factor which tends to increase the damages because it would have led to the partnership breaking up, and for the possibility that the relationship may break up anyway. It is not as clear what will happen if that occurs, although the plaintiff may try to get back into painting, with an uncertain chance of success. In all the circumstances, I think the appropriate course is to make a global allowance of future economic loss in the sum of $35,000. Other Matters [35] There was some difference among the doctors as to whether or not the plaintiff requires assistance in domestic tasks; Dr. Todman and Dr. Curtis thought that he did, whereas Dr. Weidmann and (by inference) Dr. Boys thought that he did not. There was evidence that the plaintiff is in fact receiving a good deal of assistance, (p.11, p.59) and I suspect that this is largely because of the effect of his continuing to work notwithstanding the injury to the neck. I think that if he is able to get -- 12 of 14 -- 13 lighter work which stirs up the neck less, he will be able to cope with most domestic tasks, and that will be largely the pattern in the future, but I think the extent of assistance provided in the past an amount of 6 hours per week has been reasonable. The applicable hourly rates have changed somewhat over the relevant period: Exhibit 9. I think overall the appropriate amount to allow, which involves some rounding, is $9,000 for this aspect. [36] Something which was really not explored in the course of argument was the question of whether some allowance should be made for the additional effort put in by the woman who is now the plaintiff’s partner prior to the commencement of the partnership agreement. Once the partnership agreement came into operation she was being rewarded by her share of the partnership profits, but prior to that her additional effort was really analogous to the situation considered in Griffiths v. Kerkemeyer, but in the work context rather than the domestic context. If a person who is in business has to engage paid assistance as a result of injuries suffered interfering with his ability to do the work he would have otherwise have done for himself, the cost of that assistance is recoverable. For example, the cost of employing Mr. Byrnes and Mr. Helscher as some contractors to do high work which the plaintiff would have otherwise done himself was, I think, recoverable but there was no evidence of what this was. If the plaintiff needs assistance to earn money that he would otherwise have earned without assistance and the cost of that assistance if paid for would have been recoverable, then an allowance should, in my opinion, be made for the cost of assistance provided voluntarily by someone in the position of Ms. Barnett. In the present case, no attempt was made to quantify this assistance, so I have to make a moderate allowance for it, but I think it is a real loss, and the plaintiff is entitled to some compensation for it, and I have to assess that as best I can. It appears it was for a relatively short time since the partnership started a little over 12 months after the accident (p.54), and this is another factor justifying moderation. I think some allowance should be made and I will allow the sum of $2,000 on this basis. [37] With regard to future gratuitous care, if as I expect, the plaintiff stops working as a painter and takes up less strenuous work, the need for that care will be greatly reduced, but I think some allowance should be made for the likelihood that there will be some continuing need for some forms of assistance, perhaps at the rate of one hour per week. This, with some rounding up to allow for the possibility of the plaintiff continuing in more strenuous employment, produces and allowance for future gratuitous care of $6,500. There is no basis for allowing future gratuitous assistance in the painting business. [38] A number of other claims were not contentious: medical expenses refundable to HIC - $618.10; physiotherapy expenses - $768.90; travelling expenses - $375; taxi fares - $300; pharmaceutical expenses - $65; and counselling expenses - $595. Interest should be allowed on the travelling expenses, taxi fares and pharmaceutical’s at 4% for 1.9 years. A further sum of $500 was sought for future expenses in this nature, and in the circumstances I think it is reasonable to make that allowance. -- 13 of 14 -- 14 Summary [39] I therefore assess damages as follows: A: Pain and suffering and loss of amenities $20,000 B: Interest on $10,000 at 2% for 1.9 years $ 380 C: Past economic loss $ 5,000 D: Interest at 4% on $5,000 for 1.9 years $ 380 E: Future economic loss $35,000 F: Past gratuitous care $11,000 G: Interest at 4% for 1.9 years $ 836 H: Future gratuitous care $ 6,500 I: Past special damages $ 2,722 J: Interest on out of pocket specials at 4% for 1.9 years $ 56 K: Future expenses $ 500 Total: $82,374 [40] There will therefore be judgement that the second defendant pay the plaintiff $82,374. I will circulate these reasons and invite submissions in relation to the appropriate order for costs when judgment is delivered. -- 14 of 14 --