Dametto v Wishart & Suncorp Insurance & Finance [1996] QSC 90

_ _/t.f2state Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION CULLINANE J No 112 of 1994 DAVID DAMETTO and COLIN WISHART and SUNCORP INSURANCE AND FINANCE TOWNS VILLE .. DATE 01/04/96 .. JUDGMENT 1 REVISED COPIES ISSUED State Reporting Bureau Plaintiff Defendant Third Party 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 28 -- 010496 HIS HONOUR: In this matter the plaintiff claims damages for personal injuries sustained by him in a motor vehicle accident which occurred on the morning of 17 May 1992 when a vehicle driven by the defendant and in which the plaintiff was a pas~enger ran off Cooks Lane near Ingham and collided firstly with a shed on a sugar cane farm before corning to rest with its rear end against a power pole. At the time the vehicle was travelling to Lucinda where the defendant lives. The plaintiff has no recall of events from shortly after arriving at a nightclub in Ingham at around, on his account, midnight. It would seem that the accident happened shortly after 6 a.rn. on Sunday, 17 May. The plaintiff sustained a head injury, and I infer that that is the cause of his lack of recall. There was no real issue, about negligence and although volenti non fit injuria and absence of duty are pleaded, these were not pressed. The real issue relates to contributory negligence. 10 20 30 40 The activities of the plaintiff and the defendant during the period from about midday on Saturday, the 16th, until the time of the accident together with the plaintiff's alleged failure to wear a seat belt give rise to these issues. There is some difference between the account of the plaintiff and the defendant as to their activities. As I have said, the 50 __.,...... plaintiff has no recall of events from about the time he arrived at a nightclub known as Pelligrini's at Ingham. 2 60 -- 2 of 28 -- ,....,_.,,.,,.....__ 010496 The plaintiff and the defendant were associated in an undertaking, which was promoting a fishing competition, to be held in the Ingham district in September 1992. The defendant was the principal involved in this but the plaintiff played a rol~ and had done so, I am satisfied, for about a month or so prior to the accident. The precise nature of the plaintiff's role in the business, which continued after the accident and involved a subsequent event in Townsville, is disputed, but it is clear that he was involved in the promotional activity. He apparently managed this with his full-time work activities, which I will refer to a little later. According to the defendant, a company had been formed and he and the plaintiff were both directors of this. On the Saturday before the accident, there was some significant activity involving a television company's interest in the event. The defendant had lost his licence early in 1992 and was unable to drive a vehicle. He conducted a business at Lucinda. On the Saturday morning, it was proposed that persons from the television station be flown over the area where the fishing competition was to be conducted. Because of weather conditions, this was postponed for a period and the plaintiff drove the defendant to Ingham. The defendant's wife 10 20 30 40 50 and her aunt also came. According to the defendant, the plaintiff and the defendant each had two beers when they went into Ingham, starting at about 11 .30 a.m. The defendant says that the plaintiff took 3 60 -- 3 of 28 -- 010496 the people from the television station back to Lucinda where the flight took place and he later returned. The plaintiff agrees that at about midday he and the defendant had .two beers. According to the plaintiff he then left whilst the defendant says that he and the plaintiff participated in what is described as a charity pub crawl in which a group of people moved around the various hotels in Ingham drinking at each. 10 20 The defendant says that he went to some 18 hotels. The plaintiff says that there are a dozen hotels in Ingham and the defendant says that he had what is described as a schooner at each. He says that the plaintiff probably accompanied him to four or five of these hotels and he thought that the plaintiff 30 was drinking bourbon and coke, although this would seem to be based upon what he says is his experience of the plaintiff's drinking habits. The plaintiff says that he spent the afternoon at home and at about 5.30 visited a friend and then went to a church service where his son was making his first communion and that at the conclusion of that at about 8.30 or a little later he again visited the friend before returning to a hotel in Ingham called Lee's Hotel. The defendant says that the plaintiff participated in the pub crawl at least partly until about 4 p.m. to go to a family event. According to the defendant, he, the defendant, continued to drink beer whilst the plaintiff was away. 4 40 50 60 -- 4 of 28 -- 010496 The plaintiff says that he attended at Lee's Hotel about 9 p.m. and remained there until about midnight when he went to the nightclub. He says that he drank about four or five stuhbies of light beer during that time and recalls having a 10 stubbie of beer at the nightclub. At one time he said that he recalled having a rum and coke as well but later said that he had no recall of this. He was not, on his account, with the defendant during this time but saw him at different times at the hotel and spoke to him. The defendant says that he saw the plaintiff at a time he estimated at about 7 p.m. or 8 p.m. when he returned from his family commitment. The defendant says that he saw him at a hotel, which he thought was called The Star and that they each 20 30 drank there until about 9 p.m. or 10 p.m. when they went to the nightclub. The defendant says that he thinks he and the plaintiff were drinking together at the hotel and that they were drinking together at the nightclub, although the defendant says that he was drinking with others as well. In cross-examination, he conceded that he and the plaintiff may have spent much of their time drinking with others. He said that both he and plaintiff were affected by alcohol. According to the plaintiff, he and the defendant were not drinking together at the time that they were at Lee's Hotel, and, as I have said, he has no recall of what occurred from shortly after arriving at the nightclub. The plaintiff claims to have recalled that shortly after 5 40 50 60 -- 5 of 28 -- 010496 arriving at the nightclub, arrangements were made by him to spend the night at some other person's place and that he would have been able to walk there, leaving his vehicle with the keys on the floor, parked in a street of Ingham. I am not inclined to accept this evidence in view of subsequent events. This is virtually the only recall that the plaintiff_ claims to have of anything which occurred at the nightclub, apart from consuming some beer. There was no evidence supporting the arrangement and nothing to explain why 10 20 if such an arrangement had been made, the plaintiff and the defendant were in a vehicle in the location they were when the accident occurred. The defendant says that he and the plaintiff were drinking rum 30 and cokes at the nightclub and that he, the defendant, drank approximately 10 to 15 of these over the period they were at the nightclub. He says that the nightclub shut at about 3 a.m. and it was at that time or perhaps somewhat later when they left together and got into the plaintiff's vehicle, which 40 was parked nearby. The defendant does not recall any express arrangement being made for the defendant to be driven home by the plaintiff but says that they had been together and the nightclub was closed and they got into the car together. He says that he believes they were together most of time at the nightclub, although, as __,.__ I said, he conceded in cross-examination that this may not have been the case. 6 50 60 -- 6 of 28 -- 010496 The plaintiff and the defendant left the vehicle with the plaintiff driving and the defendant says he believes that he and the plaintiff were both wearing seat belts. They travelled a distance which the defendant estimates as being abont 15 kilometres or so and commenced to drive along the road to Forest Beach where the plaintiff lived. The defendant asked him where he was going and the plaintiff that said that he wanted to go to his home at Forest Beach. The defendant said that he told the plaintiff he wished to go to Lucinda. Subsequently, according to the plaintiff, the defendant gave him an account which would have had a conversation of this type taking place at the plaintiff's home at Forest Beach, but I accept what the defendant says as to where this occurred. The plaintiff turned the vehicle around and as it was being driven back to the turn-off to Lucinda, the defendant says that the plaintiff appeared to fall asleep and in consequence he asked the plaintiff to stop the vehicle and told the plaintiff that he, the defendant, would take the vehicle to Lucinda. The defendant says that he thinks he said, "You better stop. I don't think you should drive any further. I don't think you 10 20 30 40 50 can drive any further. I better drive." According to the defendant, the vehicle was stopped and he walked around the front of the vehicle and he thinks that the plaintiff may have done so also, but acknowledges that he may have simply slid across into the passenger's seat. 7 60 -- 7 of 28 -- 010496 The defendant cannot say whether the plaintiff put a seat belt on at that time but had the impression that the plaintiff simply fell asleep. The defendant's next recollection is waking up and finding that the vehicle had come to rest against the power pole. The police attended the scene and both the plaintiff and the defendant were taken to hospital. At 7.46 a.m. a specimen of the defendant's blood was taken. Upon analysis it was found to contain 256 milligrams of alcohol to 100 millilitres of blood. There was evidence from Dr Purssey, who was called by the defendant, that if the accident occurred at 6.15 a.m. and that 10 20 30 if the defendant had had his last drink about 3 a.m. when he said they left the nightclub, his blood alcohol level at the time of the accident would have been in the vicinity of .28. The maximum blood alcohol level, which on this scenario, the defendant would have had would have been at about 4 a.m. when it would have been approximately .32. It is, I think, a fair inference that the plaintiff and the defendant must have left the nightclub significantly later than 3 a.m. for the accident to have occurred at the time that 40 50 it did, after travelling the distances described by the defendant. Mr Pellegrini, the owner of the nightclub, when called to give evidence, could not recall whether his licence provided for a 8 60 -- 8 of 28 -- 010496 3 a.m. or 4 a.m. closing on that evening. However, as I have said, it is clear, I think, that if the plaintiff and the defendant left the nightclub and travelled without any deviation along the route which he describes, that they must hav~ left the nightclub considerably later. However, it is clear also that if what the defendant said is correct, he and the plaintiff had consumed a substantial quantity of alcohol with the defendant's consumption being greater than that of the plaintiff in the course of the day. Both of them must have been, as the defendant has said, adversely affected by alcohol and I am satisfied from Dr Purssey's evidence that each of them would have been manifesting significant signs of this. I prefer the evidence of the defendant as to their activities on the Saturday, and I am satisfied that the plaintiff participated to some extent in the pub crawl. I think the plaintiff however is correct as to the time at which he arrived at Lee's Hotel after the church service and visiting his friend. There is evidence supporting this from both his former wife and his friend, Mr Chiesa. I also think that the plaintiff is likely to be more accurate as to the time at which he arrived at the nightclub and although the evidence does not enable me to conclude affirmatively that they arrived together, I am satisfied that they were there about the same time. The plaintiff and the defendant were, as I have said, 9 10 20 30 40 50 60 -- 9 of 28 -- ........,_,,.,.,....__ .. .,,._ 010496 associated in a business undertaking. The defendant was relying upon the plaintiff to drive him around. They had travelled into Ingham together on this day and the defendant had no other means of transport to his home. According to the defendant, it would have been understood between them that they would have been leaving together and he would have required the plaintiff to drive him. He said that in the past they had drank together and finished the evening at the nightclub before leaving together. I am satisfied that at all times it is likely there was an understanding between the plaintiff and the defendant that they would travel in the plaintiff's vehicle at the end of the evening's activities and that the plaintiff would take the defendant home. At the least I am satisfied that it was foreseeable by the plaintiff that he and the defendant would leave the nightclub together and travel in the vehicle. I am satisfied that the defendant was guilty of negligence in failing to exercise proper control over the vehicle as a consequence of which it left the road and struck the shed before coming to rest against the power pole. I am further satisfied that his intoxicated state was the cause of his losing control. 10 20 30 40 50 So far as the allegation of contributory negligence is concerned in so far as it relates to the question of alcohol, I think it is clear that at no relevant time prior to the defendant telling the plaintiff to stop the vehicle it was anticipated that the defendant would be driving the vehicle. 1 0 60 -- 10 of 28 -- 010496 Where two persons drink together and each becomes intoxicated in circumstances where they intend to or it is foreseeable that they will later travel together, it may be appropriate to consider the question of contributory negligence on the part of nne who is injured as a result of the negligent conduct of the other to which the consumption of such alcohol has contributed by reference to one or two approaches. Firstly, the matter may be looked at by reference to the reasonableness of the conduct of the injured person in allowing himself to become intoxicated having regard to what he ought to have foreseen. Secondly, whilst for reasons to be found in judgments such as Bannovic v. Percovic (1982) 30 SASR 34 and McPherson v. Whitfield and Suncorp Insurance and Finance Court of Appeal Queensland 15395 unreported, it may not be appropriate to apply an objective test in all circumstances to the conduct of an injured person at the time he travelled as a passenger, it may be appropriate to ascribe knowledge of the 10 20 30 driver's condition to the injured person in the circumstances 40 described above. Both approaches find some support in the authorities which are collected in an article published in (1994) 2 Torts Law Journal 37 (Guest Passengers, a Drunk Driver's Defence, Karen Hogg). The author suggests at page 60 that the two approaches are reconcilable. Looking at the matter on the first approach, it was, in my 11 50 60 -- 11 of 28 -- 010496 view, clearly foreseeable at the time the plaintiff commenced and during the time the plaintiff continued to drink substantial quantities of alcohol, particularly on the evening of Saturday and the early morning of Sunday, that he and the defendant would be travelling in the plaintiff's vehicle together at the end of the evening. The foreseeable risks associated with the joint travel in a vehicle of two intoxicated persons in my view should extend to the risk that either of them might drive whether because the person initally likely to be the driver might irresponsibly allow the other to drive on because such event falls within the general class of the foreseeable risks which arise from such activity. As with negligence, the question of contributory negligence has to be considered by reference to the type of risks generally which are foreseeable rather than the particular way in which the incident occurred. See Hanley v. Berlin (1975) QdR 52. In Weiben v. Waine and the State Government Insurance Office Queensland (Supreme Court Townsville 10 December 1991 Mr Justice Ryan unreported), the Court had to consider a not entirely different question. There the plaintiff and two other men entered a vehicle at a time when each of them were seriiously affected by alcohol. At the time the journey commenced, one of the other men was the driver, but at some time in the course of the journey and whilst the plaintiff was still asleep, the other person commenced to drive and was 10 20 30 40 50 60 1 2 -- 12 of 28 -- 010496 driving at the time of the accident. It was contended on behalf of the plaintiff that any risk that he had taken in travelling in a vehicle driven by the driver at the time of the journey would not be causally related to the injuries which he had sustained and that there was no basis upon which it could be said that he had acted unreasonably in travelling in a vehicle driven by the person who was actually driving. His Honour said at pages 22 and 23: "In my view the plaintiff should reasonably have foreseen that if he became a passenger in a vehicle driven by a person who was manifestly and significantly affected by alcohol, he would run the risk of injury through the conduct of that person, whether that conduct consisted of negligent driving by himself or by entrusting the driving to the other occupant of the car who was also manifestly and significantly affected by liquor." On the other hand, if the matter is to be judged by reference to what a sober and reasonable person in the circumstances would have done at the time the defendant commenced to drive, 10 20 30 40 then plainly his conduct in travelling in the vehicle in those circumstances amounts to a failure to take care for his own safety. That is if the matter is to be approached upon the basis of ascribing knowledge to the intoxicated plaintiff in the circumstances I have earlier referred to is the proper or a permissible approach, then the plaintiff has failed to take reasonable care for his own safety in allowing the defendant, who must have been obviously intoxicated, to drive and in travelling as a passenger with him. 1 3 50 60 -- 13 of 28 -- 010496 I am satisfied that the plaintiff was guilty of contributory negligence in this respect. Turning now to the question of the seat belt, the defendant says that the plaintiff wore a seat belt when they left the nightclub but is unable to say whether the plaintiff put his seat belt on when he moved to the passenger's side of the vehicle at the time the defendant commenced to drive. His impression was that the plaintiff immediately went to sleep, but he was not able to exclude that the plaintiff may have, before going to sleep, fixed the seat belt. Dr Purssey, after reviewing the medical reports, expressed the view that it was unlikely the plaintiff had been wearing a seat belt. He gave three reasons for this. Firstly, he said that the absence of any injury or marks consistent with the wearing of a seat belt supported this conclusion. However, he conceded that these are frequently overlooked where there were more serious injuries involved. The second, and I think it can be fairly said the most substantial reason he advanced, was that the fractured acetabulum must have resulted from a force applied directly to the plaintiff's leg when he was seated forcing the leg backwards. He pointed to some reference to an injury to the knee in support of this. His third reason was based on a reference to abrasions to the head. In cross-examination, he conceded that it was possible, although not likely, for the injury to the acetabulum to have 1 4 10 20 30 40 50 60 -- 14 of 28 -- 010496 occurred if the plaintiff was wearing a seat belt. I have evidence from Mr Spina, the farmer whose shed was damaged by the vehicle, as to the damage he observed to the veh\cle, and also what he saw of the plaintiff's position in the vehicle. There is evidence from Mr Venables, an ambulance officer, as to damage to the vehicle and what steps had to be taken to have the plaintiff extricated from it. I also have photographic evidence showing this. There is evidence from which one can infer the passage of the vehicle after it left the road, and there is evidence of the damage to the shed and the substantial construction of it. Neither the defendant nor Mr Spina recall releasing the plaintiff from the seat belt. The defendant acknowledges that his recall in this regard may not be perfect. He had attempted to remove the plaintiff from the vehicle, as did Mr Spina. Mr Spina says he does not recall releasing the plaintiff from a seat belt and says that he would have been likely to recall it had he done so. I had evidence from Dr Grigg as to the forces which would have 10 20 30 40 50 been likely to have been involved on his assumptions, which I do not think are unreasonable, as to the movements of the vehicle after it left the road. Dr Low was recalled to give evidence and he expressed an 1 5 60 -- 15 of 28 -- 010496 opinion contrary to that of Dr Purssey as to the position the plaintiff would have been seated in when the forces which resulted in the fractured acetabulum were applied. It is his view that the leg was probably in a position sideways to the body when the forces were applied, as some degree of lateral force would be likely to be involved. This is a case in which there is very substantial damage to the vehicle, particularly on the left front of the vehicle, and down the passenger's side as well as to the top of the vehicle. The vehicle must have undergone some fairly violent movements in the course of leaving the road, colliding with the shed and coming to rest with its rear against the power pole. The fact that neither Mr Wishart nor Mr Spina have any recall of releasing the seat belt tends to suggest that the plaintiff may not have been wearing a seat belt. However, I think when the evidence is considered as a whole, particularly the very substantial damage to the vehicle, the fact that the plaintiff 10 20 30 40 was found seated in the passenger seat, even after the very substantial and I infer violent movements of the vehicle before it came to rest, there are considerations which point in the other direction. One would have expected that he would have been thrown around within the vehicle, even allowing for its deformation. The onus of proof in this regard is on the defendant and in the result, I am not satisfied that the defendant has sustained this allegation. 1 6 50 60 -- 16 of 28 -- 010496 I should also mention that there is evidence from Dr Low, that having regard to the nature of the damage to the vehicle and his opinion as to the manner in which the plaintiff sustained the fractured acetabulum, that the plaintiff may in any case not have, had he been wearing a seat belt, avoided sustaining such an injury. Dr Purssey's evidence would suggest that he may not have avoided sustaining an injury to the cervical spine and indeed 10 20 might have suffered, if I understand his evidence correctly, a more serious one, although Dr Purssey is of the view that he would not have sustained the other injuries. I am not in the end result satisfied that had the plaintiff been wearing a seat belt, he would have been likely to have received significantly lesser injuries than he did, and I find against the defendant on this issue on those grounds, also. In considering the appropriate apportionment, it is plain, I t~ink, that the defendant must bear the major share of the blame. He was the person in charge of the vehicle and he allowed it to run off the road and come into collision with the shed and ultimately the power pole. However, the evidence also satisfies me that the defendant must have been very intoxicated, and I infer that the plaintiff must also have been significantly adversely affected by alcohol, although not as intoxicated at the defendant. The defendant's drinking took place over a long period and the 1 7 30 40 50 60 -- 17 of 28 -- 010496 plaintiff was at the same place, and I am satisfied, at least from time to time, in his company over a significant part in that period. I a~portion liability as between the parties as to 70 per cent 10 to the defendant and 30 per cent to the plaintiff. The plaintiff was born on 6 December 1956 and left school, having completed Grade 9 level when he was 16. He is divorced, with two children aged 12 and 11. The plaintiff is 20 a member of a family which conducts a substantial cane farming operation, together with other activities in the Ingham area. The plaintiff worked for a number of years on the cane farm after leaving school .and would work picking fruit during these years during the slack season. He also worked as a plant operator and tractor driver in the district, as well as engaging in other activities away from the family's operations. In 1984 he commenced a charter boat water taxi business, which 30 40 formed part of the family's operations, which are conducted under a trust. This business came to an end in 1988 when the vessel was destroyed by fire. Between 1988 and the financial year which had almost ended when he was injured, he earned relatively little income, as appears from his tax returns for 50 these years which were tendered. His explanation for this was that at least for some of the time he was anticipating he would be able to recommence the business, but that because of a dispute with the insurance 18 60 -- 18 of 28 -- 010496 company, this did not prove possible. He then engaged in some small crop sharing farm on the family farm on his own account and commenced some timber cutting and some furniture making work. These activities produced during the two years I have referred 10 to relatively little income. He had recommenced work as a farm hand on the family farm and his income from this and from his own activities appears in the tax return for the year ended 30 June 1992. His income during this year was substantial. It is dealt with in a report of the accountants, 20 which is Exhibit SA. By the time of the accident, the plaintiff had formed an association with the defendant, the nature of which has already been discussed. I am satisfied from the evidence that 30 the plaintiff was able to spend significantly greater periods in this activity than he suggests and was able to do so consistent with his other tasks. Following the accident, I am satisfied that he devoted substantial periods to this, spending some time in Townsville associated with the promotion of a fishing competition there. In the result, each event proved unsuccessful and the plaintiff received no income for these activities. The family trust makes distributions each year, but as a matter of policy, makes them only to those members who contribute to the income earning activities conducted by it. The plaintiff received the sum of $26,156 in 1994, but this, I 19 40 50 60 -- 19 of 28 -- ---~ ' - ..... 010496 am told, represents the sum which the trust received from the insurer in respect of the vessel (on at least whatever part of this represented recouped depreciation of the vessel) and the directors of the trustee company chose to make a distribution in this sum to the plaintiff. If a member of the family who is a beneficiary earns income outside the trust activities, this has a negative impact on the distribution which is made by the trust to that member in accordance with the policy which has been adopted in the years 10 20 that I have heard of and as it has been explained to me by the accountant, Mr carey. As I have said, the plaintiff worked at different times in the family trust's operations and also outside of it. The distributions made to the beneficiaries were, as matters were explained to me, largely notional and credited to the beneficiaries in the sense that whilst some of it may have been received, they were in the main credited to the beneficiary's loan account and used for the purposes of the business. The members of the family who engage in the trust's activities are all paid a wage for their efforts. I do not think that the discretionary payments of sums of this kind by the trustee, even pursuant to a policy of the kind I have mentioned, should be treated in the same way as income or as remuneration for the efforts for those working in the operation. 30 40 50 60 20 -- 20 of 28 -- 010496 I think it likely that the plaintiff would have, in the. future, worked for significant periods, if not wholly, within the family operations. However, I do not think it can be assumed that the policy which had been adopted by the plaintiff's mother and father who control the trust will continue in the future. Reasons were given by the accountant as to why the policy had been adopted in the past. rt is to be noted that the payment which the plaintiff received represents a significant departure from this policy. I have been told that the plaintiff's father is unwell and that it is likely that at some time in the near future other members of the family will be called upon to control the 10 20 30 family businesses conducted through the trust. Looking at the matter overall, I have not been persuaded I should allow the plaintiff possible payments from this source, either as to the past or the future, as loss of earnings or as representing a loss flowing from an impairment of his earning capacity. The plaintiff sustained severe injuries in the accident. The most serious of these was a fractured pelvis through the left acetabulum. In addition, he suffered a closed head injury. He was hospitalised until 29 June 1992. He has been left with a 40 50 disability of the left hip, which is estimated as constituting some 45 per cent loss of function of the left leg. In addition, he has a left sciatica neuropraxia. The sciatic palsy is estimated by Dr Lewis to constitute a 60 21 -- 21 of 28 -- ~-.,.,....__ .,,w,. 010496 disability of the left leg of some 25 per cent, which is of course additional to that constituted by the disability of the hip. In addition, the plaintiff suffers from headaches and pain in the cervical spine and some shoulder pain. There is an impairment of his concentration which is thought to be associated with the pain that he suffers. Although he makes complaints of poor memory, psychological testing has not revealed any positive evidence of this. He generally functions in the lower average range, according to psychological testing. He will probably require a left hip replacement within the next five years and because this will be carried out at such a relatively young age, it is likely that that will have to be repeated at some time during his life. Such a repeat procedure carries with it significant risks. Dr Callanan, who is an associate professor of anaesthetics, thinks that the pain which the plaintiff suffers as a result of the damage to his sciatic nerve is caused by a bone fragment from the fracture of the acetabulum and he ought to undergo spinal cord stimulation, which would have a better than even chance of significantly decreasing his lower limb pain and thereby improving his quality of life. This is an expensive procedure and if a fully implantable system is able to be used, significant expense has to be incurred on a recurrent basis. 10 20 30 40 50 60 22 -- 22 of 28 -- 010496 Dr Callanan thinks that the preferable course is to attempt a fully implantable system, but if this does not prove possible an external device can be tried and if successful used with recurring minimal cost. I am satisfied that the plaintiff is not employable in any employment in which he was previously engaged in. He has attempted to work twice since the accident: once in a friend's butcher shop and once on the family's farm, but neither was successful and each caused him a good deal of pain. He presently receives an invalid pension. I am satisfied that the plaintiff can do somewhat more than he has said he can do and I think the evidence of what took place following the accident with the promotional activity is 10 20 30 indicative of this. However, making due allowance for this, I am satisfied that he is not, by and large, capable of employment in any of the forms of employment which his age, work history and lack of qualifications would be likely to limit him to. I do not exclude a residual earning capacity in 40 some occupation involving light work, but having regard to the factors that I have just referred to, I think his prospects of converting this residual capacity into income are problematical and whilst some allowance is made for it, the allowance should only be small. The plaintiff describes his various symptoms in the statement, which forms part of Exhibit 1, and I am satisfied he suffers a good deal of pain and his activities are quite restricted. I accept the evidence of witnesses who say that they have 23 50 60 -- 23 of 28 -- 010496 noticed a change in his life generally and that his disposition has changed in that he becomes irritated and difficult readily. I assess the plaintiff's general damages as $95,000. Of this I ascribe $30,000 to the past. I allow at the rate of 2 per cent per annum for 3.8 years, producing a sum of $2,660. The plaintiff is the oldest of three sons. He gave evidence that he had prospects of ultimately reaching a position of management in the family operations when his father ceased to have this function. There is evidence which suggests that the plaintiff's two brothers, and especially one of these, plays an important role in the family's operations now. As I have mentioned, the plaintiff, prior to the accident, worked away from the family operations for periods. The material before me in relation to past economic loss makes a claim on the basis of calculations on two scenarios. The first is that the plaintiff would have continued to earn income as an employee of the family trust and also from his own activities in the way in which he was doing so during the financial year in which the accident took place. The other is upon the basis that he would have earned a higher income in a management position for the family trust. I have figures which show the loss of earnings to date calculated on the basis of these scenarios together with a superannuation entitlement. I think it has to be borne in mind that the plaintiff was 24 10 20 30 40 50 60 -- 24 of 28 -- 010496 apparently engaged for significant periods with the defendant in the activities already referred to and following the accident spent some increased periods doing this, although I accept that the opportunity to do so afterwards was provided by the accident itself. Although I do not think this is to be taken as an indication that he would have reduced his other activities to take on an increased role in such activities in the same way as the circumstances in which he found himself following the accident permitted him to do, I think that it is impossible to disregard the plaintiff's activities in the years prior to the accident in considering appropriate discounts and allowances to make. As I have already mentioned, in the two years before the financial year ended 30 June 1992, the plaintiff's income had been quite small, although generally I accept the explanation he gives for what appears to have been some alteration in his work patterns, and I accept that it is likely that he would have spent most of his life in full-time employment and that for a good deal, if not the whole of this, it would have been in the family's activities, at least so long as they continued. Making appropriate allowances for the usual contingencies, I allow in respect of the past economic loss, the sum of $85,000. The plaintiff has received $25,516 from the Department of 25 10 20 30 40 50 60 -- 25 of 28 -- 010496 Social Security. I allow interest at the rate of 6 per cent on the difference between the two figures for 3.8 years, producing the sum of $13,563. So far as the future is concerned, I again have calculations 10 based upon the two scenarios already referred to and showing a loss of superannuation entitlements. I should make it clear that the amount allowed for past economic loss includes an allowance for superannuation entitlements. The plaintiff was capable of earning substantial income as a result of significant activities, both within the cane farming operations and outside of it. Other members of the family engage in activities on behalf of the trust beyond the cane farming operations. The plaintiff has suffered a very substantial impairment of his earning capacity which must be productive of a substantial economic loss to him. I repeat some allowance, but a small allowance only, is allowed for a residual earning capacity. allow the sum of $300,000 for future economic loss. In making this allowance, I bear in mind that the plaintiff's activities associated with the family's operations are not likely to have ceased at any arbitrary retirement age or any I 20 30 40 50 fixed retirement age, such as might be the case with most wage earners. I think it is likely that he would have worked for somewhat longer than the average member of the community. There are claims for past and future care and assistance. The 60 26 -- 26 of 28 -- 010496 plaintiff currently resides with his parents. He has relied upon them for some activities. Mrs Coles, an occupational therapist, has assessed his need for assistance. I accept this evidence, although again I am inclined to think that he is capable of doing somewhat more than the opinions of Mrs toles' suggest. It also seems to me that some claims are 10 contingent upon his living in his own home and requiring assistance with some of the activities in that situation. Some of the activities performed for him by his mother are recoverable in accordance with the relevant principles, but 20 some such as the need for assistance in the maintenance of a yard would not seem to be recoverable, except upon the contingency basis that I have referred to. The claim so far as the past is concerned, is in the sum of 30 $14,300 and there was not really any serious challenge to this and I allow that sum. I allow interest at the rate of 2 per cent per annum for 3.8 years, producing a figure of $1,086. So far as the future is concerneQ, as I have said some discounting needs to applied to the amounts claimed, which are based upon a need for eight hours' care and assistance. The total claim is $65,760. I allow the sum of $45,000 under this head. There are substantial claims for future recurring expenses, which appear in the schedule to Exhibit 1. These amounts do not seem to include anything for the implantation which 27 40 50 60 -- 27 of 28 -- 010496 Dr Callanan refers to and which would cause the plaintiff to incur significant ongoing expenditures, although if successful, would result in reduced pain levels. It is at this stage virtually impossible to make any worthwhile assessment of the likelihood of the implantable system being able to be used. If it is not, the recurring costs would be, to use Dr Callanan's terms, minimal. In addition, no allowance is made in the schedule for the cost of the repeat hip replacement, which Dr Low says is likely to be required. Making due allowance for all of these matters, I allow, in respect of the future costs for medical and surgical expenses together with the other experiences referred to in the schedule, the sum of $85,000. In relation to special damages, the schedule sets out amounts totalling $39,883.62. This is not the subject of any challenge. I allow interest on the items F to Jin the sum of $1,432, which is the amount claimed. HIS HONOUR: The total is $672,924.62. Seventy per cent of this is $471,047.23. I give judgment for the plaintiff against the defendant by election in the sum of $471,047.23 with costs to be taxed. 28 10 20 30 40 50 60 -- 28 of 28 --