Dahl v Houldsworth [1990] QSC 133

10 20 30 40 50 60 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BEFORE MR. JUSTICE LEE BRISBANE, 2 MAY 1990 No. 680 of 1978 l REVISED cr)P!ES 1s:::.1JED l l Court R,sp:}rtin:; Bureciu t ! Daleo, -~·z+ (;:::-/. 'l-6_! (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: WILLIAM ANTHONY DAHL -and- WILLIAM A. HOULDSWORTH JUDGMENT Plaintiff Defendant HIS HONOUR: In this matter I have concluded that the accident was caused solely due to the negligence of the defendant, and that the plaintiff was not guilty of any contributory negligence. I assess the plaintiff's damages, subject to checking for purely mathematical accuracy, in the sum of $148,759. I will now hear argument on the question of costs. I publish my reasons and, on the question of costs, I indicate that I have ruled the evidence of the experts to be inadmissible, except to the extent that I have admitted Mr. Cusack's evidence in relation to his transposition of the material on to perspective drawings and have allowed his evidence to that extent, but expert evidence otherwise in the case as to opinions on the cause of the accident I have disallowed. 1 G 214-Govt. Printer, Old. 1 10 20 40 50 60 -- 1 of 44 -- 10 20 30 40 50 60 HIS HONOUR: In all the circumstances of this case, the plaintiff should have the costs of and incidental to the action to be taxed, but limited to four days of hearing to take into account the fact that I have ruled certain expert evidence to be inadmissible, and I order accordingly. G 214-Govt. Printer, Old. 2 10 20 30 40 50 60 -- 2 of 44 -- # 6C cto\ I 33 1j ~ IN THE SUPREME COURT OF QUEENSLAND No. 680 of 1978 Before Mr. Justice Lee BETWEEN: WILLIAM ANTHONY DAHL Plaintiff AND: WILLIAM A. HOULDSWORTH Defendant JUDGMENT: LEE J. Delivered the 2nd day of May, 1990. CATCHWORDS: Counsel: Solicitors: Hearing dates: D. Boughen for the Plaintiff A. Wilson for the Defendant Feez Ruthning for the Plaintiff Mcinnes, Wilson and Jensen for the Defendant 23rd, 24th, 27th February, 1989; 31st July,1989, 1st August, 1989 -- 3 of 44 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: WILLIAM ANTHONY DAHL WILLIAM A. HOULDSWORTH JUDGMENT - LEE J. No. 680 of 1978 Plaintiff Defendant Delivered the 2nd day of May, 1990. This is an action for damages for personal injuries suffered by the plaintiff as the result of a near head on collision between a Cortina sedan motor vehicle OVD-392 he was driving in a southerly direction and a Toyota sedan motor vehicle OFD-122 the defendant was driving in a northerly direction on what was then the main Bruce Highway just north of the Beerburrum turn-out on Friday evening, 10th June, 1977 shortly after 10.00 p.m. That was the Friday of the Queen's Birthday long weekend. The plaintiff was alone in his Cortina sedan. Peter Graham Early, a friend of the defendant was front seat passenger in the Toyota sedan. Both drivers stated that they have no recollection whatsoever of the incident and Mr. Early's evidence is of limited (although some) value to which reference will later be made. As appears from a document marked "G" and placed with the papers, this action was commenced on 14th April, 1978. On 28th March, 1979, the defendant commenced proceedings in the District Court against the plaintiff claiming damages for personal injuries. Notwithstanding an agreement to consolidate both -- 4 of 44 -- 2 actions, this did not occur. Various steps were taken in both actions, but no steps were taken in the Supreme Court action between October 1981 and March 1984. Following the failure of the defendant to comply with certain interlocutory orders in the District Court, his action was struck out in that Court in May of 1984. The Supreme Court action continued to proceed slowly. The certificate of readiness was not filed until 24th March, 1987 and the trial was adjourned on allotted hearing dates on 22nd September, 1988 and 17th November, 1988. The strongly contested hearing before me was spread over two occasions almost six months apart, involving in all five sitting days. The resulting difficulties in proceeding this way are obvious. All of the material has been closely examined. Fourteen witnesses were called, some on more than one occasion, and about 27 documentary exhibits were tendered including 11 medical reports and three expert reports from engineers all of whom gave lengthy evidence and were extensively cross-examined. Various objections were taken throughout the course of their evidence. The plaintiff was born on 14th May, 1950. He was 27 years of age at the date of the accident and is now 39 years of age. As at 10th June, 1977 he was employed as a sales. representative with Phillips Telecommunications Limited ("Phillips"). He had worked in that capacity with that employer for some 18 months or two years, although he had been employed by that company since 1974 as a sales co-ordinator. He was required to travel to the company's customers and prospective customers and demonstrate the company's products with a view to selling them, viz. mobile two-way radios. His territory extended north of the Brisbane -- 5 of 44 -- 3 River to the region of Bundaberg and covered certain towns in between and to the west including Murgon. It included Gympie where he visited a customer that day before his return trip towards Brisbane when the accident occurred. He was ordinarily required to tow a 30 foot trailer behind his vehicle with a winch and a mast arrangement necessary for testing two-way radios. On the day in question he did not take the trailer because it was not needed for that particular visit. On that date, he saw a client in the northern suburbs of Brisbane at about 11 . 00 a .m. After about one hour he then proceeded to Gympie to the premises of Hyne & Sons, arriving there at about 2.30 or 3.00 p.m. He terminated his contact with that client at about 5.00 to 5.30 p.m. and went back to his local agent's premises where he spent about three-quarters of an hour or so. Then he went to the agent's home. It appears that he had some soup and toast and consumed one can only of beer at the agent's premises. After filling his car with petrol he said he left the outskirts of Gympie at about 8.00 p.m. to return to Brisbane. Thereafter, he has little recall of the trip back and has no recollection of the accident itself although he said that after he had come to on the following Sunday in hospital he had a recollection of passing the Nambour showgrounds where he saw an unusually large number of vehicles mostly four-wheel drive vehicles heading north. He said in evidence that he can recall that he was quite alert when passing the Nambour showgrounds on the day of the accident and there is no reason not to accept this statement. Nambour is a bit further to the north of where the accident occurred at Beerburrum. -- 6 of 44 -- 4 Of some significance was his evidence that he usually travelled at the recommended speed limit which was 100 k.p.h. (60 m.p.h.) in the area of the accident at that time. He was confident that this was the speed at which he was driving on his return to Brisbane and this appears to have been his habit. It is reasonable to infer that this was about his speed at about the time of the accident and I find accordingly. From the evidence given by police officers, the fire brigade officer, the plaintiff and the defendant, including the photographs tendered and the sketch prepared by the police officer, Constable Whitney (ex. 4), it is clear that what may be termed a near head-on collision occurred between the above two vehicles on the Bruce Highway just north of the Beerburrum turn-out on what was at about the place of impact, a straight section of road, although there were curves in the road some little distance from the accident area in each direction. The defendant, a concrete formwork carpenter by occupation said that he worked that day doing concrete work. He finished work and went to his home situated between the Bruce Highway and Toorbul in Toorbul Road arriving home at about 6.45 p.m. to 7.00 p.m. He bathed and had a meal after which he proceeded to the Club Hotel at Cabool ture. He told Detective Senior Constable Mercer when interviewed on 13th June, 1977 that he arrived at the hotel around half past seven or quarter to eight in the evening. He also said that he consumed two or three pots (accepted as being of 10 ounce size) of beer and played pool, and that he decided to go to Roy Gattey's place at Glasshouse, leaving the hotel at about 8.00 p.m. In his oral evidence he confirmed that he arrived at the hotel about half past seven or twenty to eight -- 7 of 44 -- 5 but said that he left the hotel about 9.20 p.m. with Mr. Early, and after dropping off somebody on the way, proceeded north along the old Beerburrum Road to join the Bruce Highway by turning to his left onto the highway at a point just before the accident scene. His passenger, Mr. Early, said that when he arrived at the hotel at about 7.30 p.m., the defendant was already there and it was not until about 10.00 p.m. or very shortly before closing time at 10.00 p.m. that the defendant and he left with the intention of travelling to Roy Gattey' s place at Glasshouse Mountains (see ex. 24). Mr. Early said that at the hotel he associated with the defendant, a Ned Gattey and another person and during the time there he consumed about a half a dozen 10 ounce glasses of beer. He said that the defendant was also drinking 10 ounce beers at that time and that the defendant was drinking and playing pool. When confronted by Detective Mercer on 13th June, 1987 with the statement that Early had said they left the hotel just before closing time at 10.00 p.m., the defendant then said he would not be sure. I find that the defendant was at the Club Hotel at Caboolture by no later than 7.30 p.m., that Early arrived after him, and that they did not leave the hotel until about 10.00 p.m. that evening. Both the defendant and Early said that the vehicle proceeded north along the old Beerburrum Road after leaving the hotel. The defendant said that along the section of the old Beerburrum Road he was travelling at about the speed limit of 60 m.p.h. and that after joining the Bruce Highway, he headed north and had gone through the gears and had reached approximately the speed limit -- 8 of 44 -- 6 of about 60 m.p.h. This is of some significance in the case and confirms the view that each of the drivers were travelling towards each other at approximately the same speed viz 100 k.p.h. I find this as a fact on all of the evidence. The defendant told Detective Mercer that he could remember nothing of the accident until waking up at 4.00 a.m. the next morning when the hospital staff were cutting his trousers off. He repeated this on two occasions to Detective Mercer yet in evidence in Court he said that he could remember nothing until after waking up in hospital about three days later. He said that he suffered quite a few fractures - ribs, nose, arm and ankle although there is no medical evidence in this regard. He said that he was laid up for six months in all. In evidence however he said that the last thing he could recollect before the accident was "just blinding lights, and that was the smash" (p. 254). He "guessed" that he had been talking to Early but was not sure. Early thought that they had been talking. Despite questioning on this aspect by Detective Mercer on two occasions, the defendant said that the only thing he could remember was waking up at four o'clock in the morning in hospital as indicated. This was the next thing he remembered after coming out of the Beerburrum turn-off but he remembered nothing in between at all. Early was a friend of the defendant and apparently a drinking companion. He recalled the headlights travelling towards them but was unable to say the position of the defendant's car on the road at that time. His evidence was otherwise vague and unreliable, except as to his observations of the defendant after the accident. He had consumed a fair -- 9 of 44 -- 7 quantity of beer on the night in question and was probably affected by alcohol to a considerable extent. As one of the particulars of negligence was "driving the vehicle when his capacity to do so was affected by alcohol" it is necessary to consider this aspect of the evidence. Allan John Moore, an experienced fire brigade officer from Caboolture attended the scene. He said the travelling time from Caboolture to where the accident occurred took only about 10 minutes whereas the defendant said it took about 25 minutes travelling at or about the speed limit. Mr. Moore received a call at 10.26 p.m. and arrived at the accident scene at 10.42 p.m. On arrival, there were present an ambulance officer and police. After identifying the position of the vehicles with the photographs tendered in evidence, he said with respect to .the defendant the following:- "So far as concerned, unconscious. the what person in was his the Cortina vehicle condition?-- He was was How about the person who was in the Toyota vehicle?-- He was barking at all sixes. Tell us exactly what you recall of what he was doing at the time you arrived at the scene.-- When we arrived at the scene he was yelling out at the police officers and the ambulance officers to get him out of the vehicle. Do you recall what sort of language he was using at that time?-- Very colourful. Were there any other persons who to your knowledge had been in the vehicle who were present at the scene apart from the persons trapped in the vehicle?-- There was no other person in the vehicle but I was informed by ambulance officers that Once the person in the Cortina was removed, did you then turn your attention to the Toyota vehicle?-- That' s correct. Were you involved Toyota vehicle?-- in removing the person from the That's correct. -- 10 of 44 -- 8 In the course of doing that, did you talk to that person in the Toyota vehicle?-- I certainly did. What were you saying to him?-- Trying to calm him down to explain that we were there and we were trying to get him out. How close did you come to that person in the course of talking to him and getting him out of the vehicle?-- Very close. You will have to tell us if you can how close you came.-- Within an inch of his face. Did you make any observations about his breath at that time?-- Yes. Tell us what you noticed.-- There was a strong smell of alcohol. Did you notice anything else about his appearance?-- Yes he had a fair glow like a person who had been drinking for some time. His eyes were real watery and glassy and bloodshot and his manner was one that had had too much to drink and was very aggressive. Did you notice anything about his speech?-- At that time his speech was slurred." After certain evidence led as to the experience of this person, he expressed the opinion that the defendant was too drunk to be in charge of a vehicle. Whilst there is no medical evidence to support the defendant's statements as to his injuries, there is no reason not to accept that he did receive some injuries in the accident and was admitted to hospital. However Mr. Early confirmed that at the scene the defendant was using vile language. Mr. Moore said that the defendant appeared to him to be oriented and that he knew where he was . evidence of Dr. Lynch. I have also carefully considered the On all of the evidence, I find that the defendant consumed much more alcohol than he stated in his evidence or than he admitted to to Detective Mercer three days after the incident. -- 11 of 44 -- 9 I also have doubts about his statement that he recalled nothing until he came to three days after the accident, having regard to the fact that he told Detective Mercer that he remembered being in hospital at four o'clock the next morning when his trousers were being removed and also the evidence of Mr. Moore (confirmed to some extent by Mr. Early) as to his condition at least when the ambulance officer arrived. I also take in to account the fact that he said in evidence he remembered the blinding headlights and the smash. There is no evidence of head injury other than what the defendant himself said was a fracture to his nose. Nor is there any evidence of retrograde amnesia. It seems to me that the defendant probably knew more about what occurred leading up to the accident than he was prepared to admit. I was generally not impressed with the evidence of the defendant or Early. The defendant was guarded in his answers and where it suited him he had no recollection. It seems that on all of the evidence, the defendant's capacity to drive his vehicle was affected by the consumption of alcohol which probably contributed to the conclusion I have otherwise come to viz. that his car in fact moved onto its incorrect side of the roadway and caused the collision. This conclusion is justified on the objective evidence alone, quite apart from the defendant's sobriety and his stated recollection of events leading up to the accident, although in my view his failure to explain the accident in circumstances where he was capable of doing so allows the above inference to be more confidently drawn. -- 12 of 44 -- 10 Considerable debate occurred about the admissibility of expert evidence called for the plaintiff to which some reference will be made. There is no doubt that each of the t"wo witnesses called for the plaintiff as well as the witness called for the defence have special training and experience in their respective fields but this of course does not make their evidence necessarily admissible insofar as it seeks to interpret objective proved facts such as the position and damage to the vehicles, marks on the roadway etc. On the other hand, certain parts of the evidence of Mr. Cusack are clearly admissible and it was not contended to the contrary. This relates to his diagrams and sketches which amount to no more than a transposition to a convenient form of his observations based upon the positions of the motor vehicle and marks on the roadway as depicted by photographs, as well as on the police evidence which was available to him including the sketch prepared by Constable Whitney (ex. 4). This may not strictly be in the same class as expert evidence, al though Mr. Cusack did bring to bear his professional skill in preparation of the perspective sketches and designs. Counsel for the defendant submitted that evidence of the plaintiff's experts should be rejected because:- 1. the interpretation of the skid marks is not a matter requiring expertise; and 2. opinions expressed by the experts were not based upon recognised fields of study or knowledge; 3. that the experts are attempting to usurp the questions for determination by the Court. From these submissions, defence counsel submitted that the information available to the Court was insufficient for any -- 13 of 44 -- 1 1 appropriate inferences to be drawn. He also pointed to what he submitted were various elements of uncertainty in the case and various assumptions would have to be made. Therefore it is necessary for certain findings of fact to be made before this debate can be resolved. On all of the objective evidence, apart from the "opinion" evidence adduced by experts, I find the following facts:- 1. The accident occurred between the plaintiff's vehicle and the defendant's vehicle at about 10.00 p.m. to 10.10 p.m. on the Bruce Highway approximately one kilometre north of the Beerburrum turn-off on Friday, 10th June, 1977 at which time the plaintiff was driving his Cortina sedan in a southerly direction towards Brisbane and the defendant was driving his Toyota sedan in a northerly direction towards Glasshouse Mountains. 2. Each vehicle at about the time of the impact was travelling approximately the same speed, i.e. in the region of the speed limit of 100 k.p.h., thus indicating the rapid rate of approach towards each other. 3 . These two vehicles were each small sedans with a not significant disparity in their weight or mass. 4. Each vehicle at the point of impact overlapped the other to the extent of about 500 millimetres in what was a near head-on collision thus causing extensive somewhat similar damage to the front off-side of each vehicle although the Toyota suffered additional damage mainly in the region of the door and the door pillar on the near or passenger side causing that part of the vehicle also to hang towards and probably also to come into contact with the ground. -- 14 of 44 -- 12 5. Leading up to and just prior to the point of impact, the vehicles were travelling in a more or less parallel course towards each other. 6. After the impact each vehicle violently rotated in a clockwise direction (viewed from either direction) causing each vehicle to rotate about the point of impact into an approximate reverse position after which each vehicle, then extensively damaged, continued on a course leading up to where it came rest on the side of the roadway on which it had been travelling before the impact. 7. After the rotation movement the Toyota at some distance along the road or off the carriageway reverted to a position obliquely facing north-east, the general direction in which it had been travelling, whereas the Cortina had spun around and finished up facing partly back in the direction in which it had travelled, having struck a bank with its rear end. 8. The positions in which the vehicles are depicted in the photographs and in the various sketches are the positions in which they came to rest following impact, i.e. they had not been moved after they had come to rest and before the photographs were taken. 9. The Cortina would probably have travelled a further distance and more comparable to the distance travelled by the Toyota after the impact, had it not come to rest against the bank on the eastern side of the highway. 10. The Cortina, unlike the Toyota, was damaged on the off-side only with no apparent damage to near-side. -- 15 of 44 -- 13 11. The substantial part of the damage to each vehicle occurred at a point behind the front off-side wheel of the vehicle. 12. All of the marks depicted in the photographs on the bitumen at about the scene of the accident including those which were transposed to sketches by Mr. Cusack were marks in fact caused by this particular collision. They were variously described as gouge marks. There was evidence of glass and debris at some unspecified point on the highway. It is reasonable to infer in the circumstances that all of these marks were caused by the accident. 13. The police officers' investigation was concerned with evidence of criminal negligence. 14. The marks on the roadway identified as "A" and "B" in the various annexures to Mr. Cusack's report, ex. 19 (~hich I hold to be admissible) were caused by the Cortina as well as other marks identified as "x", "Y", "z" on figure 2 of that exhibit. 15. I also conclude that the marks identified by Mr. Cusack as "J", "K" and "L" and other unidentified marks in between were caused by the Toyota. Each of these respective sets of marks leads up to each vehicle. Any other conclusion in my view is not warranted by the objective evidence. It follows from the foregoing that I reject the submissions by counsel for the defendant that the marks in question could have been caused by other vehicles or could have been there for some considerable time, that the vehicles could have been moved from where they had come to rest before the photographs were taken, that there is no evidence of speed of the vehicles, or that there was an unproved assumption that the vehicles were of -- 16 of 44 -- 14 equal mass and weight and an unproved assumption that they were travelling in a course more or less parallel to each other prior to the collision. As indicated, I have found to the contrary. This leaves the question of which vehicle caused the marks identified by Mr. Cusack as "C", "E", "F" and "I" on the one hand and "D", "G" and "H" {leading up to"J" made by the Toyota) on the other hand. It was conceded by counsel for the defendant that if marks "E" and "C" were in fact caused by the Toyota, then the accident occurred on the eastern side of the highway, i.e. , on the correct side of the road being driven by the plaintiff. I disregard the dots and circles placed upon Mr. Cusack' s plan as evidence of what he said was the point of rotation or where the accident had occurred. As indicated, certain objections were taken with regard to what was said to be expert testimony. A person can be called to give evidence of the laws of physics to vehicle dynamics in certain defined circumstances and, indeed, of the possibility of an inference in relation to physical evidence provided there was not already sufficient evidence to enable the Court to draw the same inference by recourse to its knowledge or experience and common sense, and providing also that the witness was sufficiently qualified by study or experience to express such an opinion: Weal v. Bottom {1966) 40 A.L.J.R. 436; Clark v. ~yan (1960) 103 C.L.R. 486; Eagles v. Orth [1976] Qd. R. 313; Sweeny v. Boulton (1984) 2 A.M.V.R. 124; Taylor v. Harvey [1986] 2 Qd. R. 137; R. v. Faulkner [1987] 2 Qd. R. 263. This course is permissible only in circumstances where from facts otherwise proved, the Court is unable to interpret those facts without the aid of an expert who must possess peculiar skill and knowledge -- 17 of 44 -- Sc 15 in an area which partakes of the nature of a science and requires a course of experience or study in order to obtain a knowledge of it. It is not admissible when the enquiry is into a subject the nature of which is not such as to require any particular experience or study to qualify in order to have an understanding of it. It is common knowledge that when two vehicles of approximately the same weight and travelling at approximately the same speed collide in a partly head-on position but only to the extent of a partial overlap of some 500 millimetres and providing they are travelling not significantly out of a parallel course, each will spin around in a clockwise direction from that point of impact. Even children playing with matchbox toys may demonstrate .this movement. Some emphasis was placed throughout the case on whether or not after impact there had been longitudinal movement of both cars along the highway. In my view a layman can interpret the marks to show that this probably did not occur. It seems to me that I do not need to rely upon expert evidence in assessing the objective evidence in this case and in concluding that marks "C", "E", "F" and "I" were caused by the Toyota and not by the Cortina. The substantive damage to each vehicle occurred behind the front off-side wheel in each case and that damage came into contact with the ground. Because the marks "c", "E" and 11 F 11 are curved in such a way as to show that they were caused by a vehicle spinning in a clockwise direction they could only have been caused by the Toyota travelling in a northerly direction and not by the Cortina travelling in a southerly direction. For the Cortina to have made any such -- 18 of 44 -- 16 marks at or about the region of the centre line, the marks would have had to have been curved in the opposite direction by virtue of the angle to which the Cortina was thrown following the impact. This is further supported by the fact that Figure 1 of ex. 19 shows a consistent track of roughly parallel marks made on the roadway due to damage on both sides of the Toyota. These marks show a fairly defined path leading in the general direction to where the Toyota came to rest. See also Figures 2, 3 and 4 of ex. 19. In my opinion this conclusion is irresistible on the objective facts and quite apart from the evidence given by experts. Accordingly, I do not admit the evidence of any of the experts other than the evidence of Mr. Cusack in the form of his diagrams and sketches referred to. It follows from the foregoing that at the time of the accident (and I find as a fact), the Cortina was travelling on the correct side of the roadway. At that time the Toyota without warning encroached onto its wrong side of the roadway thereby causing the collision with the Cortina driven by the plaintiff. This conclusion arrived at from the objective evidence, is nevertheless supported by the fact that the defendant's ability to control his motor vehicle was diminished due to the effect upon him of the alcohol he had consumed. Having regard to the combined approaching speeds of the two vehicles, this encroachment probably occurred at the last moment and the plaintiff had no opportunity to avoid the accident. In the result, I find that the accident was caused solely by the negligence of the defendant. I also find that there is no evidence of contributory negligence as against the plaintiff. -- 19 of 44 -- 17 This leaves the question of damages. The plaintiff was 27 years of age at the date of the accident and is now 39 years of age. After school he attended the Queensland Institute of Technology for 12 months studying engineering part time whilst working for Australian Consolidated Industries ("ACI") at their Glassworks Division at West End. He then moved to the engineering arm of that organisation and continued with his studies. When that organisation closed its engineering works in Brisbane he was retrenched and obtained employment with Seismic Supply International in 1970/1971. He worked for that firm until 1974 when he obtained employment with Phillips, his employer at the time of the accident, as a sales co-ordinator responsible for distribution of the product sold by the outside sales force. He made some sales himself in that position where he remained until mid to late 1975. He then moved to the active outside sales force with that organisation, the job in which he was engaged at the date of the accident on Friday, 10th June, 1977 as a result of which he was unable to work until 7th November, 1977. On that date he resumed his position performing the same duties but on 29th September, 1978 he resigned. Thereafter he was self employed as a salesman for a short period and then took up employment with the Australian Telecommunications Commission ("Telecom"), his employer as at the date of trial. It therefore appears that for a substantial part of his working life, he was sales oriented and indeed has at times engaged in aspects of selling with his present employer. Whilst employed with Phillips he was supplied with a vehicle for his full time use, business and private. All petrol -- 20 of 44 -- 18 and repair costs were found although if he used the vehicle for holidays which he was entitled to do, he then paid for his own petrol. The position involved a great deal of driving over his extensive country territory referred to above. His job was to demonstrate and sell mobile two-way radios. It was necessary for him to tow a 30 foot Tandem trailer behind his vehicle to which was fitted a large mobile mast. He was required in the ordinary course of his occupation to winch this mast to an upright position for the purpose of demonstrating the mobile two-way radios on site. It was necessary for him to establish and to service local agents in the various towns. This involved regular visits and also on call visits as required. On the day of the accident, it was not necessary for him to take the trailer to effect the demonstration in the Gympie District. His job entailed some degree of driving every day. He was engaged in active selling and was required to achieve a budget set by his company. His long term plans were to achieve budget and to increase budget by direct selling himself, by the appointment of more agents and more active agents. The industry was very competitive. He was paid an additional bonus on the occasions on which he exceeded budget. The plaintiff was married in 1974. At the date of trial he had three children aged seven, six and four which means that the oldest child was not born until about 1982, some years after the accident in 1977. At the date of the accident his wife was also working. The plaintiff has no recollection of the accident itself. He was knocked unconscious and subsequently regained consciousness on a day which he was advised was the Sunday -- 21 of 44 -- 19 following the accident. He suffered retrograde amnesia for perhaps an hour or two before the accident, his last recollection being of having passed the Nambour showgrounds and observing an unusually large number of four wheel drive vehicles proceeding north. Counsel for the defendant by election conceded that the orthopaedic and other injuries received were serious but he submitted that the plaintiff had made good recovery with no immediate indication that further surgery was necessary. The plaintiff's personal injuries are alleged in para. 8 of the statement of claim as follows:- "(a) Lacerations to the face and scalp; (b) A punctured eye leading to loss of vision and an unsightly gap between the eye socket and eyeball; (c) Loss of left patella (d) Lacerations to the right knee; (e) Torn ankle tendon; (f) Fractured cheekbone and jaw; (g) Damage to the right elbow; (h) Loss of feeling on right hand side of face; (i) Pain and suffering." The medical reports indicate that on his admission to the Royal Brisbane Hospital it was noted that he had sustained a comminuted compound fracture of the left patella, a penetrating injury to the right knee joint, lacerations to the right elbow involving the triceps tendon, and ligamentous injuries to the right ankle joint. He also suffered compound fractures of his right zygoma which was punctured. His right eye was also punctured and injured. On 11th June, 1977 he underwent surgery -- 22 of 44 -- 20 and a left patellectomy was performed. The wounds on his elbow were repaired. The right knee joint wounds were also repaired. The right ankle lateral ligament was explored and it was partially avulsed, and reconstituted. his zygoma were also treated at The compound fractures of the same time i.e. his cheekbones were wired. His left leg was placed in a plaster cast for 13 weeks. sutured. The right eye and tissue surrounding were It appears that the plaintiff was in hospital for six weeks. When he first regained consciousness on the Sunday after the accident he was fairly heavily sedated. At that stage he suffered pains mainly in both hands where drips had been inserted. He was not then experiencing a great deal of pain in his legs. During the first 12 or 13 days he was continually given pain killing drugs. He was moved from one ward to another and pain developed in his left leg and right arm after about two and a half hours following administration of drugs. was affected because he could not turn over His sleep in bed. Physiotherapy commenced after 12 or 13 days. He was unable to raise his right arm to feed himself or comb his hair. The physiotherapy treatment worked to the threshold of pain and a little above. It was quite a painful experience for him. The plaintiff said that as a result of the depressed fracture to his cheekbone and injury around his eyes, his eyes ached considerably. When he regained consciousness he was unable to focus in reading. It appears that the fracture to his right cheekbone was compound and he underwent two operations in relation to it. A pack was inserted into his right antrum which was removed after four weeks and was very painful. He has been -- 23 of 44 -- 21 left with aberrant tactile sensation on the right cheek together with a degree of rhinorrhoea and nasal obstruction. He is unable to notice any discharge from his nose because of lack of sensation. It appears that the laceration to his right upper eye extended on to his right cheek. There was a partial division of his lateral canthor ligament which resulted in the penetrating injury to his right eye. The operation to pull out his depressed cheekbone was extremely painful. The removal of stitches from his left knee was a very painful procedure because they had become ingrown and were buried in the regrowth. Each stitch was painfully removed. He complained that his vision on discharge was nowhere near the same standards that it was prior to the accident. His sight was blurred and he could not define any detail with objects. After six weeks when he was discharged from hospital he still had a plaster cast on his left leg from hip to foot. He used special crutches because of damage to the elbow. On return home he was not very mobile. His home was high set. He had difficulty getting dressed with the large plaster cast and difficulty in washing. His wife assisted him with dressing and in bathing. His wife also helped him in other ways e.g. preparation of lunch before she went off to work. He was unable to prepare it for himself. The plaster was removed from his left leg about 13 weeks after he was admitted to hospital. He was still on crutches because he could not put weight on the left leg. There was a period of six weeks at home when he was immobile during which he did not undergo physiotherapy. Otherwise physiotherapy continued until not long before he returned to work on 7th -- 24 of 44 -- 22 November, 1977. He underwent a fourth operation to his left knee called a mobilisation operation. It was performed a week or so before he returned to his employment. It involved an overnight hospitalisation. He complained that he developed constipation in hospital and subsequently haemorrhoids although there is no medical evidence to support the view that hospitalisation caused the haemorrhoids. After the plaster came off his leg his wife still continued to assist him into the bath but she was no longer physically involved in his showering. He also was then able to dress himself. He underwent further physiotherapy and used an exercise bike and swimming to help improve his bodily functions overall. At the present time he suffers difficulty in sitting in a cramped position for any length of time. He has to have his knee extended to ease some of the pain. He can endure it for a time but then it develops to an ache which must be eased by extending and flexing the knee. If he puts his full weight on his left knee the pain is severe and on occasions his left knee collapses under him. He has fallen on occasions because of it. He also has some difficulty with walking and balance. Apparently he drags his left leg when walking, a matter which he has tried to overcome. His left knee is also affected by changes in the weather particularly when it commences to rain. The knee then commences to ache. He is also still undergoing pain in his ankle. Apart from the scarring to the right knee, he suffers no difficulty from that area. -- 25 of 44 -- 23 He states that his eyesight is almost corrected by spectacles although his sight does not produce the same level of clarity which he enjoyed perviously. After release from hospital he had continuous mucus from the eye. It was subsequently discovered that a stitch was protruding and causing irritation. He underwent local anaesthetic and the stitch was removed. After that the eye discharge apparently ceased. He suffered some minor sinusitis before the accident and it appears that following the damage to his cheekbone, this has increased. He often has a runny nose which he has difficulty to feel due to numbness on the right side of his cheek. He has some scarring on his knees, ankles, elbows and cheekbone. He does not appear to suffer embarrassment from those scars. He states that he is physically able to drive a vehicle but that he incurs difficulty if he has to drive frequently. This is due largely to the necessity to use the left leg in a bent position rather than in a straight position. Also he notices pain in his right elbow when he winds the window up or down. Prior to the accident he was a very active squash player and played competitive squash. He has endeavoured to return to this sport but has been severely restricted particularly by virtue of his left leg and right elbow. He no longer plays any competition fixtures. It appears that the plaintiff's right arm is still somewhat weak especially in the movement of straightening the elbow. He also suffers weakness in the left leg, has difficulty climbing and cannot run. His right ankle also still swells. Doctor Lahz noted some minor but significant weakness of the right triceps muscle but otherwise no abnormality. The right ankle appeared -- 26 of 44 -- 24 to be normal to examination. The left knee and thigh revealed persistent wasting and weakness of the quadriceps muscles and some pain during the mid part of flexion, of bending of the knee and some crepi tus or grating in the knee joint on movement. X-rays showed early arthritic changes in the joint. Doctor Lahz assessed the disability to the right arm to be in the order of five per cent loss of use of the arm which is relevant mainly to activity involving straightening of the elbow. The injury to the left knee resulted in a significant disability equivalent to about 25 per cent loss of use of the whole limb. The plaintiff is developing osteoarthritis in this knee as a result of having the kneecap removed and this will probably progress the plaintiff's disability by a further 10 per cent or so. Doctor Atkinson, neurosurgeon, concluded that the plaintiff suffered a moderate closed head injury with mild cerebral contusions although he has not suffered any personality changes. He concluded that it was unlikely that the plaintiff suffered any irreversible organic brain damage although there was a risk of about three per cent that the plaintiff will develop epilepsy in the future. He suffered damage to the right infra-orbital nerve and is left with permanent sensory changes over the right cheek, the right side of his nose and the gum on the right upper side of his mouth. No further improvement can be expected. This causes him continual annoying disability as he cannot normally feel discharges from his nose or normal sensations over his teeth and right upper lip. Doctor Harrison, ophthmologist, said that the plaintiff's right eye is sunken into the orbit and the appearance has remained unchanged over a period of eight years. The scars at -- 27 of 44 -- 25 the back of the eyes remain unchanged and the degeneration of the vitreous jelly in the right eye has not increased. There is still no sign of similar degeneration in the left eye. Doctor Harrison concluded that the risk of future retinal detachment should be considered as quite low but it is not an insignificant risk. After his return to work, the plaintiff said that his actual duties did not change. He was still required to sell, to demonstrate, to market mobile two-way radios as previously although he arranged for a change in location. This was because less travelling would be required. His territory was then the Gold Coast. He said that this change in territory was brought about for two reasons mainly that it would involve less driving and would not involve the use of a Tandem trailer with the winch as in the north coast territory. He said that he was no longer able to winch up the mast on that trailer by virtue of his injury to his right arm. medical evidence. This is not inconsistent with the At the Gold Coast the style of selling was different. There was no established client base as he had established in his north coast territory. Selling there was mostly under budget. As a result, he said that he lost $20.00 per month when compared with what he was earning in his north coast territory. He said that when he first recommenced work he felt quite comfortable with the fact that he was not going to be driving as much but when he got reinvolved with selling he found that because he was still driving a great deal he started to develop an uneasiness to driving and being on the road. At one stage whilst driving on the Gold Coast, he was involved in a minor -- 28 of 44 -- 26 accident whereby a car collided into the rear of a car behind him which in turn collided into his vehicle. He became fearful that, contrary to his hopes, his new territory was not a safe driving environment notwithstanding that the roads were better than the roads on the north coast where he had been involved in driving more lengthy distances. As a result of this fear he said that his work patterns changed. Principally he tended to avoid long demonstrations with a client, notwithstanding that they were the ideal selling environment. He was then not as successful on the Gold Coast as he was on the North Coast. Principally it was his inability to redemonstrate the product on the Gold Coast as he was able to do on the North Coast. He said that prior to his leaving his employment in September 1978, he sought employment which involved the removing of the driving component from his work. He felt very uneasy with driving every day and was afraid of being hit again. He wished to avoid putting himself into an accident situation and he looked for alternative ways of earning an income with his skills which did not involve the driving component. At the time he left Phillips he did not have permanent employment. He had sat for an entrance exam for Telecom. It appeared that he had prospects of obtaining a selling job with Telecom but with minimal driving. After he left Phillips he was involved for about six weeks in direct selling for an organisation called The Success Motivation Institute which was selling a motivational product. The driving component was within Brisbane only and it was in the main servicing business -- 29 of 44 -- 27 houses not solely in the central business district but more ,in the inner city rather than outer city. He finally commenced work with Telecom on 2nd January, 1979 starting as a Base Grade Clerk. He was on a temporary basis for two months at the end of which he became permanent. He planned to move fairly fast within that organisation through the ranks by virtue of his experience and qualifications. He was anxious to succeed as far as possible. After four months he was successful in being promoted within Telecom as a Liaison Officer for the Supply Branch. It was a public relations type of position. It did not involve driving but any travel was by means of taxi. He worked in that job for three years. Thereafter he applied for a position in Sales and was successful in being promoted two levels into the Sales area. These involved promotions and increases in salary. He spent two years in that position then was promoted to the position of Computer Phone .. Consultant. This involved the demonstration of Telecom' s products in Telecom's premises. He held that position for two years. As the product was not successful it was dropped. He was then moved sideways to the position he currently holds and which he has held for two years. He is now a Senior Consultant with Telecom' s Communications Systems. There are prospects of advancement from that position also. This includes the immediate prospect of an upgrading of the position because of growth and the areas involved. He said that in the long term his promotion will be restricted because the head of his di vision has traditionally been an engineer, a qualification which he does not possess. It appears that there are some prospects of promotion in the management stream although he is -- 30 of 44 -- 28 of the view that he will be restricted because of his lack of engineering qualifications. Had he remained at Phillips he had ambitions for promotion. He hoped eventually that he would succeed in obtaining promotion fairly high up the scale of selling positions in Queensland. Having a background in selling, he was of the view that in time he would have developed the experience and the performance to have taken the top sales position which would then flow to the Sales Manager's position or the State Sales Manager's position. He said that had he obtained an offer of promotion, he would have been-prepared to move outside Queensland for that purpose. Other personnel fairly senior in the sales force had been promoted to Production Manager, Melbourne then to Sydney and finally back to New South Wales State Manger. At the time of the accident he had ·no children. His wife was employed at the time as a Stene/Secretary, with good secretarial skills. She would have had no difficulty in obtaining suitable employment in other States. Diarmuid Guerin gave evidence that in 1977 he was employed w~th Phillips in Brisbane in the position of Senior Salesman to the end of 1977. He was well acquainted with the plaintiff. Mr. Guerin knew the plaintiff when they both worked at ACI. He had known him from about 1970. After Mr. Guerin left ACI he commenced work with Phillips in July 1971. After hearing that the plaintiff had left ACI and went to work for Seismic, a vacancy arose in Phillips for a similar position to that occupied by the plaintiff with Seismic. Mr. Guerin offered him that job which he accepted. This was in 1974. Mr. Guerin said -- 31 of 44 -- 29 that the plaintiff was very competent as a sales co-ordinator and as a salesman. In about 1975, that is after about three years, Mr. Guerin became a senior sales representative at Phillips, a position he occupied for a little over two years until October 1977 when he was transferred to Melbourne as Product Manager. After two years in that position he was transferred to Sydney as State Manager for New South Wales. He regarded this as a usual career path. He said that other persons followed the same pattern. Another senior salesmen with Mr. Guerin at the time in Brisbane became State Manger of Victoria two years after Guerin left Brisbane. Mr. Guerin was of the view that provided the plaintiff was prepared to move from Brisbane he would have adopted much the same career path as he (Guerin) had done. The usual pattern was for senior sales people to move into product management or the export department and from there to State Manager pdsi tions providing they were prepared to move. He was of the view that the plaintiff was probably two to four years behind him in the career path that he had followed. He said that the Phillips organisation tended to leave people in positions for about two years provided they displayed enthusiasm for promotion. Mr. Guerin spent two years as Sales Co-ordinator, two years as Service Manager, two years as Senior Salesman, two years as Product Manager and a bit over two years as State Manager. He had spent in all about six years in Brisbane office before moving to Melbourne, a period of time which he thought was appropriate for the plaintiff also. However, he said that if the plaintiff chose to remain in Brisbane, he could have aspired -- 32 of 44 -- 30 to the position of Senior Salesman, a position which was subsequently changed to Area Manger, and basically that is where he would have remained. He expressed doubts as to whether the plaintiff could have become the State Manager by staying in Brisbane as a senior salesman, unless he was first prepared to move elsewhere for experience. There were other unspecified possibilities for promotion within the Phillips organisation. Incomes were not mentioned. Mr. Guerin also expressed the view that on his promotion as Product Manger to Melbourne in October 1977 (i.e. four months after the plaintiff's accident), the vacancy for senior salesman thereby created might have been offered to the plaintiff. Mr. Guerin after occupying the position of State Manager, New South Wales, was offered the position of National Sales Manager in Melbourne, a position he declined because his wife did not wish to move anymore. That position was ultimately occupied by Mr. Van Tunen. As a result of leaving Phillips organisation the plaintiff lost the full time use of a car and had to buy his own vehicle. He gave evidence that it cost between $50.00 to $60.00 per week to operate his own car. It appears that all of the plaintiff's connections have been with Queensland. His parents as well as those of his wife reside in Queensland. This would not have prevented him taking promotion by moving interstate had it been offered to him at Phillips at least prior to the time his first child was born (approximately 1982). Whether promotion would have offered to him in Queensland or interstate, and whether he would have moved -- 33 of 44 -- 31 interstate is another matter, but these possibilities will be taken into account. It appears that the plaintiff enjoys his position with Telecom and also says that he has reasonable prospects of promotion there. Unfortunately, the evidence does not disclose in what areas or what likely income he could expect. The accident in the Gold Coast occurred about eight to 10 weeks after he resumed work. He has not sought psychiatric assessment or treatment with regard to his fear of driving but nevertheless it is reasonable to conclude that he gave up his position with Phillips because of the genuine fear he not unreasonably had of driving every day. It seems that he recommenced his job and genuinely tried to stick at it but left for the reasons he indicated. Coupled with this was his discomfort with driving by virtue of the permanent injury to his left knee. He also suffered some disability with his right arm. The consequence of the removal of his kneecap and the developing osteoarthritis in the knee with the effect upon him of his ability to walk, also probably had an effect upon his capacity to engage in active outside selling activity. In addition to extensive oral submissions, counsel for the defendant handed a typed submission which is marked ex. "E". Those for the plaintiff are marked exs. "F" and "G" all of which are placed with the papers. Special damages for medical expenses etc. were agreed in the sum of $351 .80. Presumably this includes the sum of $164.00 paid by the Workers' Compensation Board of Queensland (ex. 11). As no interest was claimed on this amount, it will not be allowed. -- 34 of 44 -- 32 The Fox v. Wood factor is not in dispute. This is in the sum of $701 .72 (see ex. 11). In addition the sum of $960.00 was claimed for the past Griffith v. Kerkemeyer component. This was in no way in dispute. In view of the assistance rendered to the plaintiff by his wife, this sum is reasonable and should be allowed. No question of interest was raised in relation to this sum. Loss of income to trial may be dealt with in two components, the first of which is not in dispute. The plaintiff was off work from 10th June, 1977 until 7th November, 1977. The sum claimed for past economic loss is $3,307.20 gross. See ex. 11 and also ex. 17 for the year ended 30th June, 1978. From this must be deducted the taxation instalments of $701 .72. This gives a net figure of $2,605.48. As indicated, the Fox v. Wood factor has been allowed separately. There is no question of interest on this sum because it was paid periodically by the Workers' Compensation Board of Queensland. However, an additional sum of $600.00 is claimed for that period representing loss of commission at $120.00 per month plus the sum of $220.00 or $20.00 per month for the period 7th November, 1977 to 29th September, 1978. These latter claims were in no way put in issue and will be allowed. Income tax thereon would have been minimal and no point was taken in relation to it. The only question is whether or not interest should be allowed thereon. In this regard, I have taken into account the submissions in relation to interest including the considerable delay in the prosecution of this action. This delay has been explained in ex. "G" and in oral submissions. I see no reason why interest -- 35 of 44 -- 33 should not be allowed on this sum. However, having regard to the period involved to the date of this judgment i.e. over 12 years, and the fact that the claim for commission does not extend beyond 29th September, 1978 when the plaintiff left the employment of Phillips, it seems to me that I should allow interest for 10 years at 10 per cent to reflect the somewhat lower rates of interest in the decade prior to 1980 and the somewhat higher rates of interest which have applied in the latter part of the decade ending in 1990. This comes to a further sum of $820.00 for interest which will be included in the award. This leaves the difficult question of past economic loss from 29th September, 1978 up to trial. I must say that I have found the evidence in this regard not entirely satisfactory and somewhat difficult to follow. The primary sources appear to be ex. 17 (salaries and wages returns and certain group certificates etc. from year ended 30th June, 1974 to year ended 30th June, 1988); ex. 23 (correspondence to and from solicitors for the plaintiff and Phillips seeking income rates for various classifications); ex. 25 (correspondence to and from solicitors for the plaintiff and Messrs. Price Waterhouse Chartered Accountants with a schedule said to represent the plaintiff's loss of income to 30th June, 1988 based upon two possible scenarios each of which include an allowance for loss of the use of a company motor vehicle and superannuation); ex. 12 (correspondence to and from the solicitors for the plaintiff and the Commissioner for Superannuation giving details of superannuation entitlements); ex. 16 ( group certificates of Diarmuid Guerin who also gave oral evidence. These are for the -- 36 of 44 -- 34 period year ended 30th June, 1977 to year ended 30th June, 1981. Included is a letter dated 18th December, 1981 from that company to Mr. Guerin advising him that his salary effective from 1st January, 1982 is $27,000.00 per annum). All of these documents have been closely examined and considered, along with the oral evidence and the submissions. The difficultly with the evidence of Mr. Guerin's career path as a suggested guide for the plaintiff apart from the accident is that there is no material before the Court to show how many other salesmen were employed by Phillips at relevant times, their comparative performances and status within the company, or how many applications were in fact received by Phillips from salesmen or other staff in Queensland or elsewhere for the position of Senior Salesman made vacant by Mr. Guerin's promotion to Product Manager in Melbourne in October 1977. All that can be said is that the plaintiff no doubt had he applied for that position, would have received consideration for it along with other applicants. It does not follow that he would necessarily have been successful, although his reasonable prospects must be taken into account. There is another difficulty on the material. There is no proper indication of comparative income structures and tax deductions between a salesman and a senior salesman from the years 1977 up to about 1982. Indeed, by ex. 23, the solicitors for the plaintiff sought information from Phillips based upon two possible scenarios contained in Schedules 1 and 2 respectively. Schedule 1 assumes that he would have remained as a salesman in Brisbane office for the year ended 30th June, 1979 -- 37 of 44 -- 35 with a promotion to Product Manager in Melbourne in 1980 for two years followed by a promotion to State Sales Manager from 1983 up to trial. It appears unlikely that the plaintiff would have been promoted directly from salesman to product manager but would have had to first graduate to a senior salesman and succeed in that position for some time. At least this appears to be the effect of the evidence of Mr. Guerin and is consistent with the plaintiff's own evidence. Schedule 2 assumes that he would have remained as a salesman in the Brisbane office for 1979, 1980 and 1981, with a promotion to Senior Sales Representative, Brisbane office in 1982 a position which was postulated that he would hold until 30th June, 1984. Thereafter from 1985 to date of trial, Schedule 2 postulates that he would have occupied the position of Area Manager, Brisbane office which as Mr. Guerin described was simply a renaming of the position of Senior Sales Representative (p. 69 transcript). Also Mr. Guerin expressed doubts as to whether or not the plaintiff could have been promoted from Senior Salesman or Area Manager to State Manger, a position which he thought was generally reserved for persons who were prepared to take shifts to gain experience in other States. He referred however to the possibility of promotions amongst other divisions of Phillips but said that that did not happen too often. As indicated above, I conclude on the balance of probabilities that the plaintiff left his job with Phillips because of the regular driving involved. His relocation to the Gold Coast did not prove successful when compared with the area he canvassed prior to the accident. He was unable to continue -- 38 of 44 -- 36 in the area where he had better prospects, which involved the use of a large trailer which he could no longer handle. I find that this fear of regular driving was not unreasonably based and that added to this was the fact that he had suffered substantial orthopaedic injuries which caused him and would continue to cause him increasing difficulty in the future in active external selling positions. I also find on an examination of all of the evidence that he has lost some income up to trial and his earning capacity has been diminished in the future to some extent, the difficulty being the quantification of those losses. Indeed, counsel for the plaintiff in his submission ex. "F" recognised the difficulty with regard to the future economic loss component in his submissions that a global award should be allowed. It,follows that I do not accept the submission of counsel for the defendant that but for the second minor accident on the Gold Coast, the plaintiff would probably have continued with Phillips. Nor do I accept the submission that the plaintiff was apparently managing his job notwithstanding nervousness after the accident on 10th June, 1977. The defendant's obligations overtaken by the subsequent minor were not accident in on my the opinion Gold Coast. This merely reinforced the plaintiff's fears for regular driving which he not unreasonably held. Nor do I accept the submission that the plaintiff's departure from Phillips was a consequence of the second accident, not the first. I find that the plaintiff's decision to leave Phillips was directly related to the first accident.· In assessing his economic loss from 29th September, 1978 to trial ( and indeed in the future), all of the well known -- 39 of 44 -- 37 contingencies must be taken into account. In addition he may have left Phillips in any event in the future apart from the accident; he may not have taken any or every move which might have been offered to him on his path for promotion with Phillips by virtue of his family, other commitments, and personal preferences; he may not have succeeded in higher positions; and also there would doubtless have been other employees within the Phillips organisation and otherwise who would be competing for positions as they became available. On the other hand, allowance must be made for the possibility that the plaintiff might have moved interstate to obtain promotion and also for the fact that he would probably have obtained some promotion even if he had stayed in Brisbane. I have not overlooked his desire for advancement. In the result, scenario one of ex. 25 is rejected as a reasonable measure of the plaintiff's losses. It assumes a full time salary structure on the basis of what might be termed a "dream run" approach to promotion to a top job in a State. There is also some difficulties with scenario two because of the lack of details of the income of a salesman for the years 1979, 1980, 1981. Also there is no reliable information of earnings which might be expected by the plaintiff in the position of Senior Salesman (with appropriate income tax deductions) for any period before the year ended 30th June 1983. Also there is no information for the year ended 30th June, 1985. All of these figures are estimated. I have not overlooked the effect of ex. 16 which indicates Mr. Guerin's income as Senior Salesman for year ended 30th June, 1977 (he left this position in October 1977) . -- 40 of 44 -- 38 The plaintiff has lost the benefit of the use of a motor vehicle. However, another factor must be taken into account namely the prospects of moves within the Phillips organisation to other positions which were mentioned by Mr. Guerin even though not considered to be very common. There was otherwise the prospect that the plaintiff might in any event have lost the use of a motor vehicle in due course, had he obtained a position within the Phillips organisation which did not carry with it the use of a motor vehicle. Nevertheless, one offsetting factor in this regard would be a higher salary which he might otherwise have expected to have earned if he occupied such a position. It is also clear on the evidence that his income as an ordinary salesman with Phillips for the year ended June 1977 and June 1978 ($12,284.00 and $12,146.00 gross respectively) exceeded his income at least in the early years with Telecom. See ex. 25 for year ending 30th June, 1980 ($11,285.00 gross) and year ended 30th June, 1981 ($12,650.00 gross). It seems to me that scenario two of ex. 25 may be used as a basis or a guide for assessing the plaintiff's economic loss to the date of trial, subject however to various contingencies, discounting and the fact that it is based upon full time employment. Doing the best I can on all the evidence, and having regard to the various contingencies, it seems to me that a reasonable sum for the plaintiff's economic loss to the date of trial is $40,000.00. Interest will be allowed on this sum at five per cent per annum for 10 years, taking all factors into account when considering the question of what rates should be allowed, for what period, and on what amount. This comes to the sum of $20,000.00 and will be .included in the award. -- 41 of 44 -- 39 Future economic loss is fraught with even greater uncertainty. He has suffered some loss of earning capacity. Such factors as changes in technology, availability of equipment for sale, competition between the various organisations, the availability of higher promotion within Telecom itself, as well as the ordinary contingencies must be taken into account. I must also have regard to the plaintiff's orthopaedic injuries which will probably worsen with the passing of time, as well as to what might otherwise have been his desire as some stage in his life to give up active outside selling for an internal position. I must also take into account the plaintiff's lack of formal engineering qualifications, a matter which was said to restrict his promotion to some extent in the future within Telecom although not necessarily in all managerial positions. It seems to me that a figure of $35,000.00 is reasonable compensation for lost future earning capacity, having regard to the plaintiff's age, his desire to succeed and all other circumstances. This leaves the award for pain, suffering and loss of amenities. The plaintiff endured considerable pain and suffering and loss of amenities in the period following the accident. He underwent several surgical procedures and experienced severe discomfort for a considerable time. His lifestyle has been restricted to a considerable degree including his enjoyment of regular driving, his former activity in various sports and other pastimes. His left knee will probably worsen in the future due to the already present onset of osteoarthritis. Whilst there is now a quite low risk of retinal detachment to his right eye, nevertheless that remains a risk. -- 42 of 44 -- 40 His sight has to some extent been affected. He is left with certain scarring which however does not particularly embarrass him. There is a three per cent risk that he will develop epilepsy. In all of the circumstances, an appropriate award for pain, suffering and loss of amenities in this case is $40,000.00 of which $15,000.00 is attributable to pre-trial. Interest will be allowed on that sum for 10 years at five per cent. comes to $7,500.00. This In summary, the award is as follows:- Special damages Fox v. Wood factor Griffith v. Kerkemeyer component Loss of income to the7th November, 1977 Loss of commission to 7th November, 1977 Loss of commission to 29th September, 1978 Total loss of commission Interest at 10 per cent per annum for 10 years on $820.00 Economic loss to date of trial Interest thereon for 10 years at 5 per cent Future economic loss Pain, suffering and loss of amenities Interest on $15,000.00 atfive per cent for 10 years Grand Total $600.00 $220.00 $820.00 $820.00 $ 2,605.48 $1,640.00 $40,000.00 $20,000.00 $40,000.00 $ 7,500.00 $ $ $ 351.80 701.72 960.00 $ 4,245.48 $60,000.00 $35,000.00 $47,500.00 $148,759.00 -- 43 of 44 -- 41 Subject to checking for mathematical accuracy, there will be judgment for the plaintiff against the defendant by election in the sum of $148,759.00. I will now hear argument on the question of costs. -- 44 of 44 --