Doo v Murphy & Suncorp Insurance and Finance [1998] QSC 211

IN THE SUPREME COURT OF QUEENSLAND No 72 of 1993 Brisbane [Doo v. Murphy & Anor] BETWEEN: RONALD ANTHONY DOO Plaintiff AND: TAMMY JUNE MURPHY Defendant AND: SUNCORP INSURANCE AND FINANCE Defendant by Election REASONS FOR JUDGMENT - WILLIAMS J Judgment delivered 8 October 1998 1 The plaintiff claims damages for personal injuries sustained in a motor vehicle accident which occurred on 30 December 1990. The Defendant by Election did not contest the proposition that the defendant driver (Tammy June Murphy) was negligent; that is not surprising given that the vehicle she was driving and in which the plaintiff was a passenger collided with a parked motor vehicle and her blood-alcohol reading at that time was .166. However, the Defendant by Election put contributory negligence in issue; in broad terms it was alleged that the plaintiff failed to take reasonable care for his own safety by travelling with the defendant when he knew, or ought reasonably to have known, that her capacity to control the vehicle was impaired by her state of intoxication. -- 1 of 19 -- 2 2 The plaintiff, and his brother Richard, met the defendant, and her friend Kerry Anne Clark, for the first time on the night in question. They were all at a party held at the residence of the witness Warlow. There is a conflict of evidence between the plaintiff and his brother on the one hand, and the defendant Murphy and her friend Clark on the other. Ultimately I have come to the conclusion that I should, in the main, accept the evidence of Murphy and Clark. I primarily do so because I consider their evidence to be more in keeping with reality and consistent with the established fact that at the material time Murphy had a blood-alcohol reading of .166. On a number of issues (including matters relevant to quantum) the plaintiff’s evidence was vague, unconvincing, and not in accord with other more conclusive evidence. In those circumstances I am not persuaded that I should accept his evidence where it conflicts with that given by Murphy and Clark. 3 The accident happened at about 11.45pm and the group of four left the party a short time before that, probably at about 11.30pm. I am satisfied that the group (the plaintiff, his brother Richard, the defendant Murphy, and the witness Clark) were talking together at the party for something of the order of an hour and a half before leaving. It matters not who arrived first at the party. The group came together around 9.30pm or shortly thereafter and remained substantially together until they left. During that time there had been some discussion about the plaintiff’s boxing career. When they left the common intention was that they would go to Clark’s residence for coffee. 4 It is clear that Murphy and Clark had between them consumed a bottle of wine before arriving at the party around 9.00pm. That consumption of alcohol was not known to the plaintiff. The women brought at least a six-pack of stubbies to the party. Murphy’s evidence suggests that she drank the whole of that six-pack, but Clark’s evidence suggests that it was shared between the two. On Clark’s evidence in addition to the one six-pack the women -- 2 of 19 -- 3 acquired a large bottle of beer from the party supplies. I am satisfied that most of that beer was consumed by the women whilst they were in the company of the plaintiff and his brother. I am further satisfied that the plaintiff produced (whether he or his brother had brought it to the party is irrelevant) a clear unmarked bottle of white liquid which the plaintiff told the women was “moonshine”. The plaintiff offered each of the women that bottle. I am satisfied that each of the women drank from it; each concluded that the contents were highly alcoholic. Murphy said that she consumed “a really good mouthful”. 5 I find on the evidence that when the group of four left the residence and walked to the defendant’s motor vehicle, the defendant was exhibiting signs of being under the influence of alcohol. Clark, who knew Murphy reasonably well, observed that Murphy was jovial, louder, and very talkative; she was less inhibited than normal. Clark also referred to the fact that Murphy’s eyes were “quite wide and starey”. Those matters may not have been obvious to the plaintiff who had only just met Murphy, but his attention was drawn to her condition by Clark, in the presence of hearing of the plaintiff, asking Murphy whether she thought “it was a good idea that she was going to drive”. I accept Clark’s evidence that when Murphy said she was “fine” the plaintiff said, “Would you like me to drive?”. To that Murphy responded in a very forthright way that she would drive. Clark conceded that she herself was over the limit and knew it. 6 The plaintiff was 26 at the relevant date and was aware of the consequences of drinking and driving; he had a number of convictions for driving under the influence of alcohol prior to the relevant date. According to the plaintiff he had some drinks (beer) with his brother prior to arriving at the party, but says he did not drink anything alcoholic at the party. I am inclined not to believe the plaintiff when he says he did not drink at the party but it is not necessary to make any specific finding in relation thereto. I specifically reject his -- 3 of 19 -- 4 evidence that he did not hear and participate in the conversation at the car to which I have referred above. I also specifically reject his evidence that he did not see Murphy consuming alcohol at the party. 7 The critical facts can therefore be summarised as follows. The defendant Murphy consumed a reasonably large volume of alcohol whilst in the plaintiff’s presence at the party; indeed the plaintiff gave her some - the “moonshine”. Murphy’s condition was such that her friend Clark, in the presence and hearing of the plaintiff, questioned Murphy’s ability to drive safely. That elicited from the plaintiff an offer that he drive the vehicle. That offer was rejected by Murphy, and thereafter the plaintiff entered the vehicle as a passenger. 8 In those circumstances I find that the plaintiff voluntarily travelled as a passenger in a motor vehicle being driven by Murphy when he knew, or ought to have known, that she was so affected by alcohol that her capacity to drive the vehicle safely was impaired. 9 Whilst I am satisfied that the plaintiff consumed some alcohol that evening the evidence does not permit a finding that he disabled himself by the consumption of alcoholic liquor from appreciating that Murphy was affected by the consumption of alcohol when she commenced the drive. 10 I am therefore satisfied that the Defendant by Election has discharged the onus of establishing that the plaintiff was guilty of contributory negligence. As was noted by the Court of Appeal in Suncorp v. Blakeney (1993) 18 M.V.R. 361 at 365: “The facts of each case will determine the proper apportionment and that is why the cases indicate a range of findings of the extent to which the passenger was contributorily negligent. ... We are aware of other unreported cases in which apportionments of between 20% and 50% against the passenger have been made.” 11 On the facts in Blakeney the Court of Appeal increased the degree of contributory negligence from 15% as found by the learned trial judge (Blackeney v. Scheuler (1993) 18 -- 4 of 19 -- 5 M.V.R. 221) to 40%, but the facts there were stronger against the plaintiff passenger. In that case the passenger and driver had been drinking together over a period of some six hours before the accident occurred. In McPherson v. Whitfield (1996) 1 Qd.R. 474 the Court of Appeal declined to increase a finding of 20% contributory negligence against the plaintiff passenger in a fairly similar case to this. In that case the learned trial judge had given some weight to the passenger’s immaturity, peer group pressure on him, and the fact that his own intoxication affected his judgment. 12 Here, the plaintiff’s previous drink-driving experiences should have alerted him to the dangers of travelling as a passenger in the car being driven by Murphy. He had observed her consuming a reasonably large volume of alcohol over a relatively short period of time prior to her assuming control of the car. Further, he had heard her friend question her ability to drive and had in consequence made the offer to drive himself. Despite all of that he travelled as a passenger in the vehicle. There was no pressure on him to do so; he could readily have called a taxi. 13 In the circumstances I find that the plaintiff was contributorily negligent and I assess the degree of contribution as 25%. 14 The main physical injury sustained by the plaintiff in the accident was a major laceration above his left eye. That injury is well depicted in the photographs which are exhibits 1, 2 and 3. The report from the Mater Hospital of 13 March 1991 indicates that the laceration was sutured under local anaesthetic. The scar was repaired by Dr Jenkins, a plastic surgeon, sometime shortly after April 1993. That operation corrected the mismatch in the alignment of the eye- brow. The present scaring to the left eyebrow is significantly less noticeable than depicted in exhibit 3. Dr Harris, a plastic surgeon, in his report of 27 March 1998 describes the injury as follows: -- 5 of 19 -- 6 “In this area a scar descends obliquely towards to the left eyebrow, through the eyebrow and then laterally in the upper eyelid. Its total length is 7 centremetres. This is now quite a fine scar and the eyebrow line and eyebrow level are quite good. There are two fine scars, one above the other portion of the main scar and one below the lower portion at the left outer canthus, which are not particularly noticeable. There is still a small deficiency in hair growth in the upper border of the left eyebrow where the scar crosses the eyebrow.” He considers that the scar has now reached a “permanent stable state and will not exhibit any further improvement”. 15 In his first report of 31 October 1991 Dr Robinson, a plastic surgeon, stated that the then condition of the scar “will be more prone to injury in his occupation of professional boxer ... as it will be a little less durable if he receives a direct hit than will be the normal skin in the region”. But by the time of Dr Robinson’s second examination, May 1994, that position had changed. In his report of 12 May 1994 he said: “the scar is essentially in the condition in which it will remain permanently and presents a mild, long term cosmetic disability and a very slight functional disability from the point of view of boxing, in that it will be very slightly more prone to damage than the rest of the skin, but not to a significant degree and not to the extent that boxing is contra-indicated because of the scar”. The Doctor confirmed in oral evidence that from a physical point of view there was nothing about the scar which would stop the plaintiff from boxing. 16 The report from the Mater Hospital records no complaint of any injury other than that to the eye, though it does note that an “examination of the cervical spine was within normal limits”. The first medical examination, it would appear at the request of the plaintiff’s solicitors, was by Dr Pentis, an orthopaedic surgeon, on 26 February 1991, some two months after the accident. The Doctor’s report of that examination records that since the accident the plaintiff “has had problems with his neck, stiffness, soreness and headaches. He has associated problems in the cervico scapular musculature”. Dr Pentis concluded that the plaintiff “had a soft tissue injury to the cervical scapular musculature” which would take 6 -- 6 of 19 -- 7 months to a year to fully settle. He also noted a soft tissue injury to the right shin which would also take 6 months to fully settle. 17 It should be noted at this stage that on 13 July 1991 the plaintiff fought a boxing match with C Trotter at Seagulls Leagues Club. The bout went the distance and the plaintiff lost on points. A video of that fight forms part of exhibit 17. 18 In his statement (exhibit 16) and evidence in chief - and it would appear in his history as supplied to various doctors - the plaintiff said he did not fight between losing to Trotter and December 1993. However, under cross examination he was forced to admit that he fought a kick boxing bout at Jupiters Casino on 29 March 1992; the video of that fight is exhibit 23. The plaintiff lost that bout on points. 19 The plaintiff’s second examination by Dr Pentis was on 5 June 1992. There is no mention in the report of that examination (exhibit 6) of the fact that in the intervening period the plaintiff had had two fights. For the first time in that report there is recorded a complaint of “stiffness in his back”; the Doctor recorded “tenderness in the mid-thoracic region of his spine”. The report appears to conclude that the plaintiff had some soft tissue injury to his lumbar region which would “approximate a 5 to 10% loss of the efficient function of his spine”. That is taken up in the later reports from Dr Pentis (exhibits 7 and 8); in the last report it is noted that the plaintiff was “having most of his difficulties in the lumbar region at present”. The Doctor settled upon an incapacity “approximating a 7.5% loss of the efficient function of his spine as a whole”. 20 Under cross examination Dr Pentis accepted that on his initial examination there was “no pain at that time in the lower back”. He also said that a soft tissue injury usually tends to show up in the first months or so after the trauma. He conceded that “kick boxing itself will cause that type of injury”; that is the type of injury to the lumbar spine of which the -- 7 of 19 -- 8 plaintiff was complaining. When it was put to him that the plaintiff had fought a boxing bout and a kick boxing-bout between the first and second examinations Dr Pentis conceded that he could not rule out the conclusion that the lumbar back injury was sustained when boxing or kick boxing. 21 The other orthopaedic surgeon who gave evidence was Dr Fraser. He examined the plaintiff on 16 February 1994 and his report is exhibit 41. Because there was no complaint for more than 6 weeks following the accident concerning the lower spine he concluded that any injury in that region was “trivial”. In his view any ongoing symptoms with the lower spine were “inconsistent with the motor vehicle accident”. In his oral evidence he said that the fact that there was no complaint of back soreness to Dr Pentis on 26 February 1991 confirmed his opinion that there was no link between the accident and the back complaint. 22 Given the fact that there was no complaint of back soreness made either to the doctors at the Mater Hospital initially or to Dr Pentis on 26 February 1991, and particularly given the fact that the plaintiff had fought both a boxing and a kick boxing bout between February 1991 and June 1992 when there was the first recorded complaint of lower back pain, I have come to the conclusion that the plaintiff has not established that he sustained any injury to his lower back in the accident. 23 The only physical injuries sustained by the plaintiff were the laceration above the left eye, some soft tissue bruising to the cervico scapular musculature which resolved within a matter of weeks, and a soft tissue injury to the right shin. 24 The critical question for determination is the consequence of those relatively minor physical injuries for the plaintiff. Notwithstanding the evidence of the plastic surgeons as to the durability of the scar in a boxing context the plaintiff contends that the fear of further damage to that eye so affected him psychologically that he was unable to be as effective a -- 8 of 19 -- 9 fighter as he was before the accident. The contention is that in turn that resulted in his developing an adjustment disorder with associated depression. It is those considerations which result in the vast discrepancy in the amounts contended for by counsel in their final addresses. Counsel for the plaintiff submitted that a total of $990,000 should be awarded for past economic loss (including interest) and future economic loss; on the other hand counsel for the defendant by election contended for a total of $30,000 under those heads. 25 The plaintiff (born 22 January 1964) suffered from dyslexia and much of his schooling was at an Opportunity School. He left school at age 14, but has since improved his literacy by attending night school. After leaving school he obtained various labouring jobs at meat works and on building sites, but appears not to have settled into any particular regular employment. He was interested in boxing from an early age and started training professionally as a boxer when aged about 17. He had his first professional fight on 4 February 1983 when aged 19. His boxing record is substantially set out in the annexure to his statement; that is also found annexed to the statement of his trainer Young. That record appears to be complete except for the fight in March 1992 with Vick. 26 Neither the plaintiff nor his trainer have kept any records as to the “purse” received for each fight. Young, in evidence, verified the amounts he has written in against the fight records and I am prepared to assume their accuracy for present purposes. Young asserts that he did not take any of the 25% from the purse to which he was strictly entitled as trainer and manager. I doubt the accuracy of that statement. Certainly he took something to cover out of pocket expenses with respect to the fight in Indonesia and I have no doubt that he received some monies from the plaintiff to cover training and other expenses. However as the amounts are not all that large the stated figures can be acted upon for present purposes. 27 The record can be summarised as follows: -- 9 of 19 -- 10 Year Number of Fights Purse 1983 23 (20 wins, 1 draw, 2 losses) $ 9,800 1984 12 (9 wins, 1 draw, 2 losses) $ 8,750 1985 9 (7 wins, 2 losses) $13,200 1986 1 (won) $ 1,500 1987 4 (4 wins) $ 9,000 1988 3 (1 win, 1 draw, 1 loss) $ 8,500 1989 5 (5 wins) $12,000 1990 5 (4 wins, 1 loss) $12,500 1991 1 (loss) $ 3,000 1992 1 (loss) $ 2,500 approximately 1993 1 (won) $ 1,000 1994 3 (2 wins, 1 loss) $ 3,000 In other words in the 12 years from 1983 to 1994 inclusive he earned in all $84,750 from boxing and kick boxing. 28 During that time his biggest purse in Australia was $4,000 for fighting T Waters on 28 April 1990 for the Commonwealth Light Middleweight Title. That fight is recorded in full on the video (exhibit 17); though he was then well ahead on points he was knocked out in the -- 10 of 19 -- 11 9th round. He also received $4,000 for the fight on 27 May 1989 in Darwin which resulted in his winning the Australian Light Middleweight Title. He fought Trotter on two occasions before the accident and received $3,000 on each occasion; he won each of those fights on a knock-out. The other major purse was $4,000 US for a fight in Indonesia in October 1988. 29 The plaintiff did not have an introduction to professional ranks through fighting as an amateur. That is why he had such a large number of fights in his first year, 1983. Most of those were over shorter distances and were designed to improve his standing as a fighter. Because of that his record from and including 1985 is of more relevance. 30 Perhaps the more significant fights were the following. On 28 August 1985 he fought J Malcolm and lost on points. Malcolm later became a title holder. Twice (1 March 1989 and 24 October 1989) he beat A Tui who was a ranked fighter. Also on two occasions (10 December 1987 and 8 April 1989) he beat C Trotter who subsequently went on to hold a world title. Then there was the fight mentioned above with Waters. 31 All the evidence suggests that the plaintiff was an aggressive southpaw who was popular with the boxing public. Experts associated with the sport of boxing variously described him as having “great potential”, being a “world class boxer”, being an “exciting fighter, better than Waters”, and having potential to win a world title. It was in the plaintiff’s favour that he could fight both in the welter weight and light middleweight divisions. Further, because of his prowess both as a boxer and a kick boxer he had a somewhat unique public appeal. 32 On the evidence I have no doubt that but for the accident, and barring injuries, he would have earned in the years 1991, 1992, 1993 and 1994 at least around the $12,000 mark, the figure he had earned in 1989 and 1990. Whether or not he would have earned more depended on whether or not he was able to win fights at a somewhat higher level than those -- 11 of 19 -- 12 he had fought in 1989 and 1990. He had fought once at true championship level (Waters) and lost. In my view it is not of great significance to say that he was leading on points for 8 rounds but was knocked out in the 9th. It is notorious in sport that some competitors are great successes at one level but cannot cope with the step up to championship level. It cannot be said that the plaintiff’s record demonstrates that he had proved himself at championship level. In his only real fight at that level he lost. Again it is notorious in boxing that the true champion comes to the fore in the championship rounds, those towards the end of the fight. That is where the plaintiff failed in his fight with Waters. 33 From a purely physical point of view the plaintiff’s capacity to earn income as a boxer has not been diminished. His physical strength and agility have not been affected by the accident. The medical opinion is that the scarring to the left eye would not, in a physical sense, disadvantage him in following a boxing career. However, it is the plaintiff’s case that as a result of the accident his boxing career came to a premature end and he was deprived of earning big money fighting for world championships. The case advanced for the plaintiff in that regard is that he was so concerned about the region of his left eye (he often had feelings that the cut had been reopened when in fact that was not the case) that he became over defensive. It is said that if one compares his fighting style as shown on the video between his fight with Waters and his post accident fight with Trotter one sees the marked change in style and approach. In other words it was a lack of confidence (want of belief in his own ability) which meant that he was not the same fighter after the accident as he was before. As noted above the contention then is that that led to a psychological adjustment disorder with associated depression. 34 I accept the evidence of Doctors Klug, Mulholland and Lynagh to the effect that the plaintiff developed a significant degree of depression due to the perceived failure of his -- 12 of 19 -- 13 boxing career. That affected his motivation and self confidence and further reduced his fighting ability. What is not so clear is the extent to which psychological factors contributed to the initial downturn in his boxing career. That is something which cannot be scientifically or logically proved. 35 Certainly the video shows that the plaintiff was more defensive in his post-accident fight with Trotter than he was in the pre-accident fight with Waters. But there may be many explanations for that. The fights were approximately 15 months apart, and, for example, the plaintiff may not have been at the same degree of peak fitness. The Trotter fight was the plaintiff’s first in approximately 12 months and (for all the court knows) Trotter could have had a much better build up for that fight. Trotter was much younger; by the time of the fight in question the plaintiff was aged 27½ years. 36 By the time the plaintiff came to fight in 1994 it may well be, as noted above, that he had developed lower back soreness as a result of his boxing (particularly kick boxing) career. That in turn may well have had an affect on his fighting prowess during that year; a circumstance which may well have existed even without the accident. That may well explain, or at least partially explain, his loss to Briggs (his last fight). 37 As was acknowledged by many of the boxing experts called to give evidence there is always a risk of injury during a fight. It is a well known fact that many fights are stopped because a boxer receives a badly cut eye, and sometimes such an injury will effectively put an end to a boxer’s career. Sometimes those cuts are caused by a clash of heads during the bout. In that regard it is not insignificant to note that the plaintiff’s style caused, or almost caused, head clashes during his fights with Waters and Trotter; he received warnings for that from the referee. Disregarding the accident his career was at least at some risk of being cut -- 13 of 19 -- 14 short because of his sustaining an injury from a head clash of somewhat similar nature to that as sustained in the accident. 38 As already noted there was an absence of records kept either by the plaintiff or his trainer Young with respect to earnings and outgoings from 1983 to 1994. Some boxing promoters were called to give evidence that, but for the accident, they would have arranged fights for the plaintiff in 1991 and thereafter. For example, Keith Ellis offered the plaintiff 4 fights in 1991 (exhibit 38); the top purse was $4,000 for a fight with Ellis, a former world champion. The other fights were for somewhat lesser figures. That tends to show, in my view, that the plaintiff immediately before the accident had no real expectation of purses significantly higher than he had been fighting for in 1989 and 1990. That tends to be confirmed by Martin’s offer of a 1991 fight with the world rated No. 6 boxer for a purse of $3,000 (exhibit 37). Another specific offer (exhibit 32) was a fight in Korea for the Orient Pacific Middleweight Title for a purse of $5,000 US. If he had won some of those fights he may well have been able to go further up the ladder and challenge for a world title. If he was successful in making a challenge for a world title he probably could have obtained a purse of $50,000 US. If he was the holder of a world title he probably would have got double that for defending it. The millions of dollars referred to in some of the statements (exhibits 28 and 31) are not realistic given the evidence in this particular case. 39 Here the plaintiff’s case has to be that as a result of the accident he lost the chance of taking his boxing career to a higher level and that was productive of economic loss. The approach to be adopted is that outlined by the High Court in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 especially at 643. The court must assess the degree of probability of the relevant events occurring and take that change into account in assessing the damages. As was there said, the court assesses the degree of probability that the relevant event might occur and -- 14 of 19 -- 15 “adjusts its award of damages to reflect the degree of probability”. In determining the appropriate degree of probability the court must also have regard to the likelihood that other factors, unconnected with the defendant’s negligence, might have produced the same effect on the plaintiff’s earning capacity (Malec at 645). A recent illustration of an assessment of damages made in those circumstances is Martin v Mansini (unreported, White J, 3263 of 1996, Judgment 28 October 1997) varied on appeal (unreported, appeal No. 10560 of 1997, Judgment 7 August 1998). That case was concerned with a young man who sustained an injury to his right shoulder. His case was that the injury prevented him from becoming a world champion squash player and in consequence deprived him of earning income from prize money and sponsorship as such. The learned trial judge applied Malec and assessed the probability that he would have been successful as a world ranked international squash player at 60%. That approach and assessment was confirmed on appeal. 40 The degree of probability must be assessed in the light of the evidence in each individual case. The greater the risks involved the lower will be the chance of the plaintiff attaining the goal. 41 Boxing and kick boxing must be regarded as high risk activities. The aim of each boxer is to hurt his opponent, and the more damage inflicted enhances the reputation of the winner. As already noted, the plaintiff had been knocked out in his only fight which was at the threshold of top championship level. Notwithstanding the opinions of the experts the plaintiff had not proved that he could hold his own in the ring at the level which resulted in significantly higher purses than those which he had been receiving. 42 I find it extremely difficult to quantify the degree of probability of the plaintiff fighting for a world title, let alone being in the position of defending a world title. Since it is necessary for the trial judge to make such an assessment in the light of Malec, on the evidence before -- 15 of 19 -- 16 me I assess the chances of the plaintiff fighting for a world title as of the order of 20% to 25%. The chances of his winning such a fight and being in a position to defend the title would, in my view, be no better than 10%. 43 However, as I have already said, but for the accident the plaintiff could have earned in the years 1991 to 1994 inclusive at least around the $12,000 per year level fighting in Australia. 44 What I have said to date relates primarily to boxing as distinct from kick boxing. The plaintiff’s record shows that he earned substantially more from boxing than he did from kick boxing. But he was reasonably proficient in the latter sport and could well have fought for a title which would have returned him a reasonable purse. Against that is his back condition; I have already found that that was not caused by the accident. The medical evidence indicates kick boxing was a possible cause of the problems in his lower back. The reality is that the plaintiff had a limited life as a kick boxer and could not have expected to have earned more than about one reasonably sized purse from that source. 45 This is not a case where one can realistically speak in terms of economic loss to trial and future economic loss so far as income from boxing is concerned. As at the date of trial the plaintiff was approaching 35 and his significant earnings from boxing and kick boxing would have ceased in any event by now. 46 Having regard to my findings and the various figures referred to in the evidence I have come to the conclusion that the plaintiff’s loss of income from boxing and kick boxing occasioned by the accident is the sum of $150,000. In arriving at that figure I have in broad terms allowed $50,000 for fights in Australia between 1991 and 1994, a 25% chance of challenging for a world title, and a 10% chance of defending a world title. In addition I have allowed approximately a further $50,000 for additional fights. In arriving at that last figure -- 16 of 19 -- 17 of $50,000 I have taken into account the various contingencies referred to above, and the fact that the plaintiff had developed a lower back problem not associated with the motor vehicle accident. All of that loss would have been incurred by date of trial, but over the period of time from December 1990 to October 1998. In the circumstances I will allow interest on the full amount of $150,000 at 6% per annum for a period of 4 years, a total of $36,000 for interest. 47 The onus was on the plaintiff of establishing any economic loss other than that associated with his boxing career. There was virtually no evidence as to his pre or post accident earnings from other areas. No income tax returns were tendered. The letter from the plaintiff’s solicitors (exhibit 26) indicates a current earning capacity of $35,000 a year as a plasterer. The evidence does not establish that he would have had a current higher earning capacity but for the accident. 48 There is some vague evidence that the plaintiff earned some income as a bouncer in the security industry prior to the accident, but that he could not do that after the accident. He claimed that he was refused such work because of his scar; apparently his appearance was not acceptable. I am not persuaded that the plaintiff lost any income in that regard. The evidence of Row strongly suggests that a scar such as the plaintiff had would not be an impediment to employment generally in the security industry. I accept that. But in any event the evidence does not permit of a finding of any specific loss in this regard. 49 On the whole of the evidence I find that the plaintiff has not suffered any economic loss over and above losses related to his boxing career. 50 A claim was made under the Griffiths v Kerkemeyer head for $4,000 representing the cost of services rendered to the plaintiff by his wife in the 12 month period after the accident. Reference was made under cross examination to mowing the lawn and putting out the rubbish. However, during the period in question the plaintiff was in training for the Trotter -- 17 of 19 -- 18 fight in July 1991 and I am not persuaded on the evidence that the plaintiff’s physical condition was such that his wife had to provide services beyond the normal. The claim under this head is not made out. 51 In the plaintiff’s statement of loss and damage special damages totalling $2,493 were particularised and that claim was not disputed. Of that amount only $1,455 has in fact been paid out by the plaintiff and interest should be allowed on that amount at 6% per annum for 7.75 years; I allow $677. 52 That leaves for assessment damages for pain and suffering and loss of amenities. The principal physical injury was the laceration to the eye; that injury is fully discussed above. In addition there was the soft tissue injury to the cervico scapular musculature and the soft tissue injury to the right shin. Each of those soft tissue injuries had fully resolved within 6 months of the accident. 53 In addition, as already noted, the plaintiff suffered initially from a post traumatic stress disorder which developed into an adjustment disorder with depressive features. He has not had any significant treatment for that condition but on the evidence it will clearly resolve within time. The major cause was the failure of the plaintiff’s much desired boxing career. That career would have ended in any event by about now and that consideration should alleviate the plaintiff’s psychological problems. I reject Dr Mulholland’s view that the plaintiff also suffered from a traffic phobia. The doctor’s conclusion was based solely on the complaints and history given by the plaintiff which omitted any reference to his post accident traffic history. In my view the plaintiff’s post accident traffic history (exhibit 22) does not accord with a condition of traffic phobia. -- 18 of 19 -- 19 54 On the evidence the plaintiff is entitled to compensation for some 8 years of an adjustment disorder with associated depression brought upon by the accident and its consequences for him. 55 In the circumstances I assess general damages for pain and suffering and loss of amenities in the sum of $35,000. I allow interest on $25,000 of that amount at the rate of 2% per annum for a period of 7.75 years; I allow $3,875. 56 My assessment can therefore be summarised as follows: Head Assessment Pain and Suffering and Loss of Amenities $ 35,000 Interest thereon $ 3,875 Special Damages $ 2,493 Interest thereon $ 677 Economic Loss $150,000 Interest thereon $ 36,000 TOTAL $228,045 57 That has to be reduced by 25% for contributory negligence; the plaintiff is therefore entitled to judgment for $171,033. -- 19 of 19 --