Belling v Whye & Anor [1990] QSC 32

10 20 30 40 50 60 REVl'.:ED COPi.ES ISSUED , -~--- ----=---, -1 u 1\....)::::, c>( IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION ~~-7-.-f\6, y No. 173 of 1986 f& · BEFORE MR. JUSTICE COOPER BRISBANE, 8 MARCH 1990 (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: DARREN JOHN BELLING -and- PAUL GREGORY WHYE -and- SUNCORP INSURANCE AND FINANCE JUDGMENT Plaintiff Defendant Defendantby Election HIS HONOUR: In this matter there will be judgment for the plaintiff against the defendant by election in the sum of $906,842.18 with costs, including reserved.costs, if any, of and incidental to the action to be taxed. -Govt. Printer, Qld. 1 10 20 30 40 50 60 -- 1 of 38 -- IN THE SUPREME COURT OF QUEENSLAND Writ No. 173 of 1986 Before Mr. Justice Cooper BETWEEN: AND: AND: CATCHWORDS: Counsel: SolicitoFs: DARREN JOHN BELLING Plaintiff PAUL GREGORY WHYE Defendant SUNCORP INSURANCE AND FINANCE Defendant by Election JUDGMENT - COOPER J. Delivered the 8th day of March, 1990. S.C. Williams Q.C. with M. Grant-Taylor for plaintiff R. Stenson for defendant and defendant by election J. O'Brien t/a Poteri Woods & Co. for plaintiff W.H. Tutt & Quinlan for defendant and defendant by election Hearing dates: 20-23 February, 1990. -- 2 of 38 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: DARREN JOHN BELLING PAUL GREGORY WRYE Writ No. 173 of 1986 Plaintiff Defendant SUNCORP INSURANCE AND FINANCE Defendant by Election JUDGMENT - COOPER J. Delivered the 8th day of March, 1990. On 5 January, 1984 the plaintiff was a passenger in a Toyota Celica coupe motor vehicle owned and driven by the defendant. At approximately 9. 00 p.m. on that day the vehicle was travelling south on Maltman Street, Caloundra when it left the roadway and collided with a power pole. As a consequence of the collision the plaintiff suffered a fracture of the sixth thoracic vertebra, lacerations to the face and left arm and a fracture of the left forearm. The fracture of the thoracic vertebra has rendered the plaintiff permanently paraplegic. Mr. Stenson of counsel for the defendant by election conceded that there was sufficient evidence to support a finding of· negligence against the defendant. The concession was properly made as on the evidence the defendant was clearly driving at an excessive speed as he approached and entered the S bend in -- 3 of 38 -- 2 Maltman Street. I find that the excessive speed, combined with the defendant's altering direction to negotiate the S bend, caused the vehicle to slide out of control striking the kerb before becoming airborne and colliding with the power pole. The defendant was negligent in the manner in which he drove the vehicle and as a result of such negligence caused the collision and the plaintiff's injuries. The defendant by election pleaded that the defendant was not responsible for the plaintiff's injury on the ground that the plaintiff knew that the defendant was affected by alcohol to a degree to adversely affect his driving and voluntarily had consented to run the risk of injury. Alternatively, it is pleaded that the plaintiff contributed to his own injuries by negligently going in the vehicle when he knew the defendant had been drinking alcohol to an extent that his driving was, or would likely be, impaired. During his final submission Mr. Stenson conceded that there was no evidence of knowledge on the part of the plaintiff of the extent of the defendant's drinking or that the defendant was, or was likely to be, affected by alcohol. As such knowledge was a necessary element of the defence of volenti non fit injuria or necessary to ground a finding of contributory negligent (O'Shea v. The Permanent Trustee Company of New South Wales Ltd. [1971] Qd.R. 1 F.C. at 6-7, 11) the defendant by election did not press these grounds of defence. Again the concession was properly made as the evidence did not support either a finding of volenti or a finding of contributory negligence. -- 4 of 38 -- 3 The principal issue relating .to liability was whether or not the plaintiff was wearing a seat belt at the time of the incident and, if not, whether the failure to wear the belt contributed to his injury. In order to establish contributory negligence the defendant by election must establish on the balance of probabilities the following three facts:- (a) that the plaintiff was not wearing the seat belt at the time of the injury; (b) that the seat belt with which the vehicle was fitted was available to the plaintiff and was in good working order (see Dawkins v. Robinson (1986) 3 M.V.R. 77 C.A. (N.S.W.) at 79; Yisrael v. Chamberlain John Deer Pty. Ltd. (1987) 5 M.V.R. 491 C.A. (N.S.W.) at 492; Dutcher v. Government Insurance Office (N.S.W.) (1988) 7 M.V.R. 447 at 449); and (c) that on the probabilities had the seat belt been fastened the plaintiff would not have suffered any injuries at all, or that if he suffered injuries they would have been significantly different from or not as great as the ones which he in fact suffered. The defendant by election relies upon the evid~nce of the defendant, the evidence of Mr. B. Riley and the evidence of Dr. B. Purssey to support a finding that the plaintiff was not wearing a seat belt. It is clear from exs. 20 and 28 that the motor vehicle was fitted with a lapsash seat belt for the front passenger seat. The plaintiff admitted that the seat he occupied was fitted with a seat belt on the night of the accident. The plaintiff has no recollection beyond entering the car. Although he swears it is -- 5 of 38 -- 4 his practice to always use a seat belt, he cannot swear that he was wearing a seat belt at the time of the accident. The defendant gave the following evidence:- " When you were setting off on the journey on which the accident occurred, you hopped into the car and so did Darren. Did you say anything to Darren when you got into the car?-- Well, hopped in the car and that and started up and I said, 'Put your seat belt on.' He said, 'No, she'll be right.' I said, 'Oh, fair enough', so we started to take off. As you were driving towards Caloundra, I think, would that be correct?-- That's correct, yes. The accident occurred. Prior to the accident occurring, did something happen inside the car?-- Not that I know of, no, not really. Did Darren remain without his seat belt on?-- Yes. Was any mention made of his him whilst you were travelling along the road?-- Yeah, we were going along probably be about 40/50 metres from the tangent point at the intersection and Darren said, 'There is Gilla', which was what we used to call him at school and that is when I heard his name. When Darren said 'There is Gilla', did he do anything?-- He proceeded to - on a two door Celica you haven't got no pillars in between to hit the front and rear windows and that, so he proceeded to stickhis upper side of the body - to sit up on the window sill and wave and say, 'There is Gilla.' Did you do anything about that?-- I reached over to grab him. I am pretty sure I grabbed his shirt and I said, 'Get back in the car', and as I pulled over, I must have naturally pulled on the steering wheel which made me hit the kerb - the traffic island." I do not accept the evidence of the defendant. At 9.45 p.m. on the night of the accident the defendant was interviewed at the Caloundra Hospital by Craig Visini, a Senior Constable of police. said:- When asked how the accident happened he -- 6 of 38 -- 5 "I was driving along and I think something broke in the front of my car on the right. The rack and pinion steering isn't very good and I think it broke." When told by Visini that he had checked the rack and pinion steering and that it had not broken, the defendant replied:- "Well something must have broken. The rack and pinion steering is worn out and I had been saving up to do the motor and front end up." There was no suggestion at that stage that the accident had been caused by his attempting to pull the plaintiff back into the car. This version of events did not arise until the defendant was aware that he was likely to be charged with dangerous driving causing death or grievous bodily harm, depending upon whether the plaintiff lived, and after a visit to a solicitor for advice. Evidence was given by Mr. D. Hum,e who was a passenger in a vehicle travelling north on Maltman Street. ,He says that the road was very well lit by several street lights. He swears that at no time did he see anybody or any part of a body outside of the Toyota Celica. I accept his evidence. Having regard to the evidence of the defendant that the plaintiff was seated on the window sill with his waist and upper torso outside the car hanging over the top of the roof it would have been impossible for Mr. Hume not to have seen the plaintiff. So too the other eye witness, Mr. Riley, must have seen the plaintiff if he were substantially outside the car as the defendant alleges. There is no suggestion in Mr. Riley's evidence that the plaintiff was outside the car and the question was not put to him directly. -- 7 of 38 -- 6 I find that the plaintiff was, at all material times prior to the collision with the power pole, within the vehicle and I reject the defendant's version of the events. Finally, Dr. Purssey gave evidence that it would not be possible for the defendant to have a blood alcohol reading of .1 when tested at 10.53 p.m., assuming the analysis machine was functioning, only having consumed the quantity of alcohol over the period that the defendant admits to. For the above reasons I do not accept the defendant as a witness of truth and do not accept his evidence as to the conversation and the failure of the plaintiff to wear his seat belt. The witnesses Hume and Gagen both gave evidence that when they got to the car they observed the plaintiff lying in the passenger seat facing upwards with his back and head on the back of the passenger seat which had fallen backwards. At that time the plaintiff was fully within the vehicle. Mr. Gagen, when asked about the plaintiff wearing a seat belt, said:- " Do you have any recollection as to whether or not there was a seat-belt around Darren Belling's body?- No, I don't. Does that mean you say there wasn't or you simply have no recollection?-- I have no recollection of a seat-belt there. I wasn't really looking for it." Mr. Hume, when asked about the plaintiff wearing a seat belt, said:- " Do you recall seeing any seat belts, seeing anything in relation to seat belts on the passenger side of the car, whether Darren had one on or didn't have one on?-- I don't recall anything about a seat belt." Mr. B. Riley was the driver of a vehicle travelling north on Maltman Street. He observed the accident. In order to avoid -- 8 of 38 -- 7 being involved in the accident he pulled his vehicle into the kerb on the left side of the road and stopped. His vehicle was stationary at the time the Toyota Celica hit the kerb and became airborne before colliding with the power pole. following evidence:- He gave the " Were you the first person to the passenger - or to the vehicle?-- I was the first person to arrive there. As I arrived at the vehicle people started coming out of the houses and that, but I think I was the first one to arrive at the vehicle itself. You got to the vehicle, and did you do anything in relation to the person who was hanging out the vehicle?-- Well, I just checked the person that was in the vehicle. He was hanging out that. He was all. right and I could see he was unconscious and he was in a very awkward position sort of laying twisted, so I just lifted him back and put him back on to the seat - sort of layed him comfortably back on to the seat and left him sitting there. Where was his head in relation to the road surface?-- Almost on the road. It was twisted down on to the road. He was sort of laying out over the side of the vehicle with his head almost on the road. What about his left arm, for instance? Did you ,notice where that was?-- Well, one arm was across his body and the other arm was out on the road near the head type of thing. Exactly left or right arm, I wasn't sure of that. Whereabouts was his bottom in relation to the seat - the passenger seat?-- It was sitting on the seat. The bottom was on the seat. Whereabouts were his legs?-- His legs were under the - just in a sitting position. The top half were down in an awkward position on the side. He was sitting on the seat with legs hanging under the Are you able to say anything about the seatback?-- Well, the seat back was covered in debri (sic) and there was rubber from the door jams and that and glass on it. I just wiped it to the side, pushed it out and then leant him back on to the seat. Are you able to say whether the seat back was upright or lying down or what position it was in?--That was in a half position - wasn't lying right back -- 9 of 38 -- 8 and it wasn't in an upright position. partly laid back position. · It was in a Did you notice whether or not there was a seat belt around that person at all?-- No, there was no seat belt that I seen." In cross-examination, Mr. Riley gave the following evidence as to the seat belt:- " And you say that there was no seat belt on the passenger?-- Well, not that I saw any seat belt. I suggest that you told Mr. Broderick on thetelephone on the occasion that I have referred to that the passenger had a seat belt on?-- No, not to my knowledge. I suggest you told Mr. Broderick that you could see the seat belt on the passenger?-- No, I don't recall that. I suggest that your recollections in 1988 would be clearer than your recollections now in relation tothese events, as one's recollection simply dims with the passage of time?-- Well, the accident was sort of vivid to me because I was concerned I had my two children in the car. I appreciate that the accident would be, but not of details such as whether or not someone happened to be wearing a seat belt that you saw?-- Well, regards to the seat belt, I particularly pushed on my two children the day of it that that's what happens if you don't wear a seat belt and that was something sort of I remarked. I said, 'You know, this is what happens if you don't wear a seat belt.' In any event, Mr. Riley, you dispute what you told Mr. Broderick by telephone on 25 March 1988 thatthe passenger was wearing a seat belt and that you could see the seat belt?-- Well, I don't recall telling him that." It was put to Mr. Riley that on 25 March, 1988 in a telephone call he advised Mr. Broderick, a solicitor then acting for the plaintiff, that at the time of the accident the plaintiff had .a seat belt on and that he could see it. Mr. Riley said he did not to his knowledge make these statements. -- 10 of 38 -- 9 Mr. Broderick was called to give evidence as to the conversation. His only recollection of the conversation is that contained in a file note which he made at the time. The note He had a read: "Darren laying half in and half out of car. seat belt on. He could see it. Checked.". Before considering how I should deal with Mr. Riley's evidence, I intend to refer to the evidence of Dr. Purssey relied upon by the defendant by election. Dr. Purssey in evidence-in-chief expressed the following opinion:- "To get this sort of injury, I do not think it could have occurred had the person been wearing a correctly fitted and fastened belt that did not fail. The failure of a belt, of course, is very rare indeed. It normally is when the - virtually all I have seen have been when the attachment bit is torn out of rusty body work, but otherwise if this person was restrained, I do not think this injury could have occurred. As far as how it occurred, conjecture - the actual injury itself, it is an extreme flexion of the body to have done this. That is an unusual injury. I have seen another one of it. Actually, the other one I have seen and have read about and seen reported on was an ejected person who was ejected and ended up with a fracture of TS. All I can say and I think I can say with confidence is that if the person had been restrained this injury would not have occurred." Dr. Purssey was giving evidence only as to lapsash belts and I infer from him comments as to United States studies (p. 188 transcript) that the position is totally different with lap belts only. The doctor conceded that the seat belt looses its effectiveness once the mounting is compromised, and that if the back of the seat collapsed the sash part of the belt would give no protection from a rear injury and that the passenger would fall backwards. Dr. Purssey also expressed the opinion that he would have expected the plaintiff to have serious multiple injuries including head injuries if he was unrestrained having -- 11 of 38 -- 10 regard to the severity of the accident. These injuries were not present. Exhibit 1 (photograph 9) and ex. 20 show that the floor pan of the vehicle on the passenger side has collapsed downwards. As Mr. K. L. King a consul ting engineer in road occupational safety has sworn, the effect is that the seat which is attached to the pan has also angled down with the "back considerable angle to the rear". at a In the accident the Toyota Celica first struck the kerb, became airborne and collided with a power pole rolling up and around the pole then rolled coming to rest on its wheels facing north on Maltman Street. The force of the impact was taken on the rear passenger side immediately in front of the rear wheel and across the roof and rear window area. The impact opened up the side of the vehicle rearward of the passenger door and removed the passenger side rear roof pillar. The roof line on the passenger's side was significantly depressed downwards. Mr. Gagen gave the following evidence as to the position of the plaintiff and the passenger seat when he arrived at the scene:- " Where was Darren Belling?-- Darren was in what appeared to be a bucket seat and it was driven back into the back seat, possibly partially into the boot, but he was right into the back of the vehicle in a reclining position. He was reclined in the seat?-- Yes. Facing upwards? Facing downwards?-- upwards as if he had just fallen backwards." Mr. Hume gave similar evidence:- Facing " Where was the plaintiff, Mr. Belling?-- Do you know anything about the Celica? Well, in a Celica you have got the two front seats and they are - you can -- 12 of 38 -- 11 move them backwards and forwards. Darren's seat was laid out onto the back seat.· The back of the seat had collapsed onto the -----?-- Onto the back seat. Onto the rear seat----- MR. STENSON: I object to the use of the word 'collapsed', Your Honour. HIS HONOUR: Yes. BY MR. WILLIAMS: You are describing - perhaps if I could paraphrase it, that may help. You are describing the back or what is called sometimes the squab of the passenger side front bucket seat lying onto the rear seat of the car; is that is to?-- That is correct. Now, where was Darren?-- In the seat. In the seat?-- In the seat. Was he lying down?-::- Ly.ing - yeah, lying back on the seat. Was he facing upwards?-- Facing upwards, yes." In the photograph number 9 (ex. 1 ) the seat with the lambswool cover can be seen at an angle over the rear seat. Mr. Riley, while describing the seat as reclined, gave evidence that the angle of recline shown in ex. 20 was greater than the angle he observed on the night of the accident. That may be so as it is apparent that someone has removed the lambswool cover from the seat and may have interfered with the angle of the seat back for this purpose. I am satisfied that the seat inclined to a significant degree backwards and over the rear seat of the vehicle and that the seat moved in this manner as a result of the impact with the power pole. Relative to the operation of the seat belt three facts emerge. Firstly the anchor point on the roof line moved -- 13 of 38 -- 12 downwards. Secondly, the anchor point on the floor with the recoil mechanism moved downwards. Thirdly, the seat back moved backwards away from the sash. The engineer, Mr. King, gave evidence, which I accept, as to the effect these matters have on the operation of the seat belt. He said:- " Well, then, if I could take it on a step by step basis. Travelling down the road straight ahead, the person would be sitting upright in his seat. As the car slews, you say, presenting its driving side to the direction in which it was travelling, would it be the case that the passenger would tend to follow that line. In other words, tend to still go down the street while within the vehicle?-- Yes, he would move towards the driver effectively at that stage. There is then an impact with the gutter. asking you to assume all these things?-- Yes. I am But there is an impact with the gutter, does that tend to cause the passenger to go forward?-- If it is a forward impact, yes. He continues moving effectively. If the vehicle becomes or is lifted air born, (sic) the person tends to go down in his seat if the vehicle is thrown vertically; is that so?-- Yes. If the vehicle impacts with its roof against a solid object or near solid object, does the passenger tend to continue towards the roof?-- Yes. Would it be fair to say that in that impact that I have asked you to assume, the body of the plaintiff or the body of the passenger would be subjected to rotational forces?-- Yes. It is difficult to be precise, but the rotation can come about from the seat belt as well as the movement of the vehicle. The seat belt obviously is across the passenger's left shoulder to his lower right hand pelvis, and so you can get rotation about the seat belt. In other words, does it act as a pivot and your shoulder can fall past - one shoulder can fall past the seat belt while the other part of the body is partially restrained?-- Yes, particularly if there is some force that takes you out of the belt initially. That is well documented. -- 14 of 38 -- 13 Such a force as may take you out of the belt would be, for example, a slew to the left causing you to move towards the driver?-- Yes, that type offorce. In a fixed belt situation, would that take your occupants - the passenger's left shoulder away from where the belt is across his shoulder?-- Yes. If I could return to the - I'm sorry, that is a rotational force. Will a seat belt protect an occupant from a forward flexion, that is the head moving forward but perhaps the lower part of the body being partially restrained? Does it permit that sort of movement?-- It rarely restrains the head and the neck. It will stop the - it will stop the upper torso moving after it stretched, so you get a certain amount of movement but then that upper body is controlled,but you can, as I said, get rotation at that point. If the roof line of the vehicle collapses or if. the person is in effect ejected upwards into the roof, · could the body of that person be subjected to compressive forces about the top of the head?-- Yes, they can. There are two features in this particularcar that result from the roof line being depressed. Firstly, it lowers the upper anchorage points of the belt and introduces slacking of the seat belt so you allow the body to move further, and, secondly, it brings the contact surf ace that much closer, so it makes contact more likely. We take up your first point. The anchorage ofthe belt, have you assumed that to be in a certain position or can you see it in a certain position?-- Yes, in this colour photograph. Exhibit 20?-- Exhibit 20, yes, you can see the belt hanging from the cant rail or the rail above and behind where the passenger side normally would be. And in a static belt, that is one that doesn't have the inertia reel advantage, if the belt is affixed to the roof line there and the roof line distorts, obviously that causes a slackening of the belt and permits further movement?-- Yes, well even with an inertia belt the same would happen because the belt would lock and. it doesn't retract that quickly. If the back of the seat collapses, does that have any effect at all upon the movement of a passenger or the operation of a seat belt to restrain?-- Well, it says two things. If the back has collapsed it means there's a substantial rearward impact or a component -- 15 of 38 -- 14 from the rear to the front of the vehicle, so that the passenger's weight has acted on the seat. Once that happens, of course, the upper strap does nothing to restrain them and they can move outwards, depending on what other movements follow that. In the substantial rearward impact the seat belt doesn't play a lot in protecting the occupant at all. What it does is control the rebound of the occupant. They go back and then tend to rebound, but this isn't a simple rear impact. There's rather complex rotational forcesinvolved in it, but certainly with the seat moved back, it does take away much of the benefit of the upper strap. BY HIS HONOUR: Mr. King, do I understand your evidence to be that if the back of the seat collapsed that the only part of the seat-belt that's restraining the passenger is the lap section and that his head and upper torso would be moving to the direction of the impact point, to the rear of the door?-- Yes, hewould tend to move towards that impact point. He would be moving backwards?-- Yes, substantially backwards, so it depends how loose the lap portion is as to whether he slides through and out. You see, as a corollary of that, in forward impacts, if the lap portion is loose or wrongly positioned you can submarine under the thing and the belt remains as tight as it was, so the - just because a belt is done up, it doesn't mean in a complex impact that it will keep you in the initial position. BY MR. STENSON: Accept this, Mr. King, and I will give it to you exactly, a person who came on thescene immediately after the accident saw the plaintiff hanging out the front passenger side of the vehicle?-- Yes. Now, it would appear if that is so he hasn' t moved to the rear or can't you make that assumption?-- I don't think you can make that assumption because, as I said, you're for example, in a forward collision you would initially go forward and thenrebound into the seat and vice versa for a rearward collision. If you have to impact a surface or held by something there will be a rebound force which willtake you in an opposite direction. You see, the vehicle, as I understand, has come to rest some distance from the pole. The indications are that it's been above ground level, perhaps 90 degrees to theground, at least, and has fallen back to the ground.Now, the person, of course, will also be moved around during that phase. -- 16 of 38 -- 15 As we understand it, and accept this, that the vehicle, when it came to res·t, was facing back in its original direction of travel, that doesn't detract from anything you've had to say?-- That's what I would expect as the front wraps around the pole. It would take it to face in that direction." The complex forces involved in this accident and the destruction suffered by the motor vehicle do not enable me to find that the seat belt was operative throughout the accident and I am satisfied that the distortion of the anchorage points and the rearward movement of the seat back caused the seat belt to fail in the sense that it did not operate throughout in the manner it was intended. If, as seems possible, the forces involved in the collision were sufficient to throw the plaintiff clear of the sash portion of the belt such that he is partially ejected from the vehicle, it does not follow that he was not wearing a seat belt simply because he was found. in the position which he was by Mr. Riley. Further the forwards sideways flexion involved in coming to this position is consistent with the movement Dr. Purssey said was usually associated with a fracture at T6 (transcript p. 187, 11. 1-10; p. 192, 1. 42 - p. 193, 11. 1-10). The position of the upper part of the plaintiff's body may well have led Mr. Riley to assume that the plaintiff was not wearing his seat belt and that assumption may well have been reinforced because the driver was clearly belted and sitting in an upright position when seen by Mr. Riley. Mr. Riley:- The evidence of " Did you notice whether or not there was a seat belt around that person at all?-- No, there was no seat belt that I seen. -- 17 of 38 -- 16 And you say that there was no seat belt on the passenger?-- Well, not that I saw any seat belt." when considered in the light of Mr. King's evidence, does not lead to the conclusion as a matter of probability that the plaintiff was not wearing a seat belt. There is evidence which supports a finding that the plaintiff was wearing the seat belt. Mr. Riley described the plaintiff as being dressed in a pair of shorts. From this I take it that he was bare chested at the time of the accident. The plaintiff gave evidence, which I accept, that while in hospital he noticed a bruising like a rope burn diagonally across the chest from the middle of the left shoulder down to the base of the ribs on the right-hand side and that there was discolouration associated with it. The plaintiff's mother gave evidence of the marking which she also described in the nature of a burning extending from the left shoulder diagonally to the right lower ribs being an inch and a half to two inches in width. Miss D. Rawlins, who was at the time of the accident a girlfriend of the defendant, gave evidence of visiting the plaintiff in hospital accompanied by the defendant. the following evidence:- She gave " Did you observe anything in relation to his chest?-- Well, I saw burn marks on his chest across there. (indicating) You are indicating on the right upper side of the chest?-- Yes. Sorry, left upper side?-- Yes. Just indicate or describe those marks in a little more detail, would you - how long, how wide, that sort of thing?-- Well, they were about that long. (indicating) -- 18 of 38 -- 17 That is about three or four inches long?-- Yes, about that long and about that wide. (indicating) About an inch wide?-- But it wasn't that wide right across. It was like deep welt cuts along there and just a little pink inside, like a deep welt. Sort of like deeper rope burns on the outside and just sort of pale pink burning on the inside. Which way did it run upon his chest?-- That way. (indicating)· That is diagonally from the shoulder down towards the lower ribs on the left side?-- Yes." Dr. J.B. Lynch, a government medical officer, gave evidence that in a severe collision a seat belt frequently causes brui~ing and if it is a lap sash belt it can leave bruising across the front of the chest. I am satisfied that it is more probable than not that the plaintiff was wearing a seat belt prior to the collision, and that, because of the damage to the car and the complex forces exerted on his body, he became separated from the sash part of the belt allowing the upper part of his body to be partially ejected from the vehicle. If I were not satisfied on the balance of probabilities that the plaintiff was wearing the seat belt, I would nonetheless not be satisfied that the defendant by election had discharged the onus on it to prove that the plaintiff was not wearing the belt and that having regard to the damage to the vehicle, the movement of the anchor points and the rearward movement of the seat back, that the wearing of the seat belt would have resulted in the plaintiff not suffering any injuries at all or that any injury suffered would have been significantly different from or not as great as the ones in fact suffered. The qualifications which Dr. Purssey made to his original -- 19 of 38 -- 18 opinion and the evidence of Dr. W.E. Davies, a consultant physician who was formerly head of the Princess Alexandra Hospital Spinal Injuries Unit, which I accept, satisfy me that in the circumstances of this collision it is at least as likely that the plaintiff would have suffered the same injuries as not, even assuming that the plaintiff was wearing the seat belt. It follows that the defendant by election has failed to make out its defence of contributory negligence relating to the wearing of the seat belt. Having found that the plaintiff was not leaning outside the car prior to the accident, the defendant by election has failed to make out its defence of contributory negligence on that ground. I turn now to the assessment of damages. The plaintiff was born on 18 December, 1965. He was educated to grade 9 level at Caloundra High School. , When he left school he obtained immediate employment as a shop assistant for a period of six months. Within a few days of leaving this employment he obtained a position as a storeman and shop assistant with B.C.C. He remained in this employment for twelve months before taking employment as a shop assistant with P and D Chicken Bar. At the date of the accident the plaintiff was in permanent employment at the chicken bar. In the accident the plaintiff suffered a fracture of the thoracic vertebra at T6. This has left the plaintiff with no modalities of function, motor and sensory below this level. The plaintiff also suffered a compound fracture of the left forearm with division of the extensor tendons to the fingers which has -- 20 of 38 -- 19 left him with a 30 per cent impairment of the left upper +imb function. The wrist will require an arthrodesis to be performed which will result in a permanent 30 per cent impairment of the wrist function. The plaintiff was first admitted to the Caloundra Hospital and thence transferred to the Princess Alexandra Hospital where he was admitted on 26 January, 1984. At the Princess Alexandra Hospital the tendons to the left forearm were sutured and repaired and the arm immobilised, facial lacerations were treated as was aspiration pneumonia of the lungs. The plaintiff was discharged from the Spinal Unit on 11 May, 1984 after 106 days in hospital. By the time of his release the plaintiff was physically independent although confined to a wheelchair. A number of reports were tendered from Dr. W.E. Davies who was, at the relevant time, the head of the Spinal Injuries Unit at Princess Alexandra Hospital. Dr. Davies also gave evidence before me. I accept the evidence and opinions of Dr. Davies as contained in the reports and expressed in the witness box. The plaintiff has undergone substantial pain and suffering associated with his injuries which lasted several weeks. He suffered severe vomiting when he was moved in the Stoke Mandeville tilting and turning bed. He was unable to turn himself for a year and was forced to lay in the one position until turned every two hours to avoid pressure sores. Because of the paraplegia his bladder was paralysed and he is forced to use a catheter to drain urine. While an inpatient at the hospital the plaintiff was allowed weekend visits home. At the -- 21 of 38 -- 20 time he was completely dependent on his parents. His mother was required to bathe him, turn him and deal with his toilet needs. The plaintiff developed a pressure sore on the right buttock. The sore started as an ingrown hair and developed into a discharging sore and ultimately into an ulcer. He was admitted to the Caloundra Hospital from 8 September, 1986 until 3 October, 1986 to receive treatment. The pressure sore recurred and he was re-admitted to the hospital for treatment from 2 February, 1987 until 3 March, 1987 and again from 27 March, 1987 until 20 April, 1987. He was hospitalised again in June 1988 for a recurrenc.e of the sore. Dr. Davies examined the plaintiff on 19 February, 1990. He found a pressure sore on the right buttock with an underlying bursa. In his opinion it is necessary to excise the underlying cyst and repair the site surgically. Upon healing the plaintiff should not have any further problem with the pressure sore provided he is careful. The surgery would be carried out at the time the arthrodesis is performed on the wrist and would see the plaintiff hospitalised for eight to ten weeks. The plaintiff continues to suffer pain running from the ribs to the fracture site. The pain is sharp and stabbing and occurs on a daily basis. He also has a burning sensation in the chest at the point where the sensation of feeling begins to diminish. The plaintiff also suffers spasms on a daily basis. The spasms are frequent and of varying intensity being sufficient on occasions to throw the plaintiff from his wheelchair. If they occur at night in bed the spasms lock up the chest muscle causing the plaintiff trouble with breathing. -- 22 of 38 -- 21 The spasms are treated with drug therapy namely Monodral and Baclofen. However these drugs can cause side effects whereby the vision of the patient is affected. This has occurred to the plaintiff. Calcification is occurring in the thighs. Dr. Davies gave evidence that in the plaintiff it has reduced knee and hip flexion by approximately 50 per cent. If it increases it will require surgery to remove the deposits of bone and calcium from the joint areas and the muscle. The plaintiff was examined by Dr. D. Farquhar, orthopaedic surgeon, on 26 October, 1989. His report dated 30 October, 1989 was admitted by consent. In the report Dr. Farquhar expresses the following opinion:- "The comments that I have made in my previous report still apply. The aching that he complains of in the thoracic region of the spine is attributable to the effects of the fracture sustained in the accident of the 25th January 1984. The prognosis is that he will continue to experience some pain and discomfort in the thoracic region of his spine. The condition of his spine is stable with evidence of permanent disability of 10% impairment of body function. The injury is now stable and there is no indication for surgical management of his spine at present. Degenerative changes will inevitably develop at the site of the injury. The thoracic pain is important because of the effect that it is having on his ability to sit comfortably for prolonged periods as would be required in most occupations available for wheelchair bound employees. The left wrist symptoms are attributable to secondary osteoarthritis developing following a vascular necrosis of the lunate bone. The comments that I made about his left wrist injury in the previous report still apply. It is reasonable to put up with the residual disability for as long as is tolerable but it is still probable that he will eventually need to have an arthrodesis performed on the wrist. The current costs of wrist arthrodesis including four days private hospitalisation are about $2,500.00. Surgery would involve immobilisation in a plaster cast for about three months and bone graft would probably be taken from the hip for the procedure. -- 23 of 38 -- 22 The myositis ossificans in the left thigh has resulted in some restriction of knee mobility that in turn has resulted in a tendency for the leg to slip while sitting in the wheelchair. Although Mr Belling feels that a progressive slow deterioration is occurring in the range of left knee movement, there is no major difference in the range of movement evident in the interval between my two examinations and the x-ray that has been taken shows mature looking new bone formation in the thigh. He may well need further physiotherapy to maintain the range of movement that he has. He does not require surgical management at present and surgery would only be required in the future if progressive deformity that could not be controlled by passive stretching developed." Although the plaintiff has a mild chronic anxiety state, (as reported on by Dr. D. Jenkins, psychiatrist, (ex. 12))~ the plaintiff has adjusted well to his condition. He is engaged to be married and hopes to have a family. He can engage in sexual intercourse in a limited way and is aware that there is a risk of sterility in paraplegics. He manages around the home being able to cook and dress without assistance. He is able to bathe and deal with his toilet needs. Prior to the accident the plaintiff was an active sportsman. He skated and played roller hockey and football. He was in the Queensland State side in rollerskating. He was at that time a fit young man. Since the accident the plaintiff has been active in para-sports. He plays basketball having played in the Queensland State side and has been nominated to play for the Australian side. He plays tennis to a high standard and competes in marathons. Sport is very important to the plaintiff. Dr. Davies expressed the following opinion in relation to the continued participation of the plaintiff in sporting activities:- " Doctor, how important sorry, what's your opinion as to how important it is for this plaintiff -- 24 of 38 -- 23 to continue his sporting activities?-- Well, it's very important to him, which therefore makes it important. It's legitimate and it occupies him when a lot of pastimes are denied him, keeps him fit. Certainly he runs some risk for injury, but all sportsmen do if they're serious about it. Yes, I think it is important and I would encourage him tocontinue." At the time of the accident the plaintiff was contemplating going into business with a friend operating a panel beating shop and a car detailing business in conjunction. The plaintiff had an interest in cars but no qualifications as a panel beater or mechanic. His interest was in the car detailing activities. The plan did not come to fruition because of the accident. Because of his age and level of education, and absence of trade skills, I am satisfied that the plaintiff would, but for the accident, have pursued manual unskilled work or work in the nature of a salesman. His interest in sport would more likely than not have led him into employment with a sports store or some allied activity, if the partnership did not proceed or was unsuccessful. In assessing future economic loss I have therefore taken as a guide the Shop Assistants (General) Award, the relevant pay rates of which are set out in ex. 25. Subject to his physical limitations I am satisfied that if given the opportunity to work, the plaintiff is capable of working. However, evidence which I accept, from Mr. Ir.a Smith, psychologist and Mrs. Helen Coles, occupational therapist, is that the plaintiff is commercially unemployable. In their joint report they state:- "SUMMARY OF STATUS 1. Mr. Belling is of average intelligence and average in his memory processes. -- 25 of 38 -- 24 2. He has adequate confidence and self-esteem for normal adjustment to d~ily stressors (sic). 3. He is experiencing moderate depressiveness with strong concern for his bodily functions and physical wellbeing. 4. His upper limb operational capacities would not be adequate for normal work requirements. 5. He is wheelchair bound and he is restricted from fully utilizing his upper limb residuals by his restricted mobility. 6. He is also restricted by painful discomfort in his left wrist, forearm and left shoulder and by scoliosis and pain in his right chest wall. 7. He would not be capable of returning to his previous employment. 8. Under circumstances in which the employer was prepared to make work place alterations and additions as necessary to facilitate Mr. Belling's access to stock, records, toislet (sic) facilities, carp (sic) park and other facilities it is probable that he would be able to be gainfully employed in an establishment such as a sporting goods store, music shop, video store or the like. 9. As to his expressed wish to undertake formal studies with a view to becoming a qualified counsellor, it is considered that his intellectual capacity is below that which would enable him to attain admission to a tertiary institution. 10. His occupational opportunities have been severely restricted and, to all intents and purposes, his present status renders him commercially unemployable.II Dr. Jenkins also expresses the view that "his intellectual capacity is not of a sufficient degree to achieve tertiary education". Importantly the plaintiff attempted to do a computer course but, because of severe spasms, was unable to sit still for long enough. Dr. Farquhar that:- This bears out the opinion of -- 26 of 38 -- 25 "The thoracic pain is important because of the effect that it is having on his ability to sit comfortably for prolonged periods as would be required in most occupations available for wheelchair bound employees." The plaintiff has sought employment in Caloundra but has been unable to find any. He has not however sought the assistance of the Paraplegic and Quadriplegic Welfare Association to find employment. Although the plaintiff has an interest in car restor~tion, even if pursued, I do not consider that it will produce any significant income. Dr. Davies expressed the opinion of paraplegics generally that "most of the younger pecple eventually tend to get work by default if they don't actively pursue it. They tend to get bored with life and need a bit more money than the pension offers and get out and get some work". Mr. Stenson for the defendant by election submitted that I should value the residual capacity at around $15.00 per day for five days per week. In my view, having regard to the problem with spasm, thoracic pain and the competition for employment in country, albeit, seaside towns in unskilled employment, it is ru)t possible to value the residual capacity on anything other than a totally arbitrary basis. In the circumstances I decline to adopt such an approach. Rather I intend to take the fOssibility of some infrequent employment into account as one of t.he contingencies when discounting future economic loss. Mr. Williams Q.C. for the plaintiff has submitted that I ~:hould not discount either the plaintiff's expectation of ~~rking life or expectation of life for the purpose of jetermining future economic loss and future recurring expenses. He submits that from the Australian Life Tables the plaintiff -- 27 of 38 -- 26 has a life expectancy of 49 years. He submits that the figure of 49 years takes into account contingencies and the risk of early death. I do not accept these submissions. The life tables are no more than the statistical expectation based on the average of past experience for the period covered by the tables. It is not an actuarial table based on actuarial considerations. It is an arithmetical value only. As Blackburn J. said in Trikilis v. Tilakos [1970] A.L.R. 191 at 194-5:- "Tables of life expectation, such as may be found, for example, in Australian Life Tables have some slight relevance in this context; at least their use may prevent the absurdity of relying on the present value of an annuity for a period longer than the subject's· statistical expectation of life. But mere reference' to a life expectation table is, of course, remotely far from being a substitute for actuarial calculations. I may also mention, though of course it is common place in this context, that even if an actuarially calculated figure is used as the basis forthe calculation of a,present value in the process of assessing damages, some reduction may, but will not necessarily, have to be made for contingencies such as sickness; the only element which is taken care of by actuarial calculations is the probability of death." For an example of the rejection of the approach contended for by Mr. Williams Q.C. see Black v. Mount and Hancock [1965] S.A.S.R. 167 at 177. Even where actuarial evidence is available the matter of contingencies must be taken into account. The reason for so doing was expressed by Windeyer J. in O'Brien v. McKean (1968) 118 C.L.R. 540 at 555:- "For myself I full accept that, as a factor in assessing compensation for destruction or impairment of earning capacity, it is proper to have regard tothe arithmetical value at the date of assessment of future weekly (or other periodical) loss of earnings resulting from the incapacity, this being calculated at some given percentage and by reference to a period of years taken as the term of working life which would have remained for the plaintiff if the accident had -- 28 of 38 -- 27 not occurred. Such a calculation is in itself purely arithmetical. It is a mistake to call it actuarial. And of course it is no more than a guide and a factor in estimation. And, obviously enough, adjustments and allowances must be made for other factors, usually called contingencies, which will affect it one way or the other: on the one hand, any probability of the assumed period of working life being interrupted, shortened or lengthened; on the other, any probability that the plaintiff might have advanced in skill and experience in his trade or calling and have thusearned wages or salary at a higher rate than before the accident. When actuarial considerations are added to purely arithmetical calculations, there is less room for discounting for adverse contingencies, simply because one contingency, earlier death, is already taken into account. But it is only taken into account by the averaged experience of the past as reflected in life and mortality tables. And it is not the average man but always a particular plaintiff whom the. tribunal assessing damages must consider. Actuarial evidence based on past experience can thus be a usefulguide, but it must be corrected by what appear to be the probabilities of the particular case in hand, remembering too. that adverse possibilities other than death are to be taken into account.II (See also General Motors-Holden's Pty. Ltd. v. Moularas (1964) 111 C.L.R. 234 at 257-259.) In respect of many of the heads of damage there has been substantial agreement. head. I will deal with damages under each Pain, suffering and loss of amenities Having regard, inter alia, to the age of the plaintiff; the multiple nature of his injuries; the recurring problem of pressure sores; the need for further operative procedures; the continuing degree of pain and the interference the arthrodesis will cause to the plaintiff in his wheelchair mobility and the substantial destruction of a lifestyle which lay before an active young man with the prospects of marriage and family free -- 29 of 38 -- 28 from the restrictions of paraplegia, I award the sum of $130,000.00 under this head. I award interest on $40,000.00 for past pain and suffering for a period of 6.1 years. Past economic loss Nett after tax earnings as a shop assistant have been calculated in ex. 25 in the sum of $67,338.96. Having regard to the age of the plaintiff, his previous good work history and his previous good health, I am of the opinion that only a slight discount ought to be made for contingencies and the exigencies of life. I award the sum of $65,000.00 together with interest at 6 per cent for 6.1 years. Special damages The parties have agreed this figure at $81,963.30 with interejt on $17,120.00 thereof at 6 per cent for 6.1 years. Past Griffiths v. Kerkemeyer The parties have agreed this figure at $27,517.00. I am not satisfied that any basis has been made out for awarding interest at other than 6 per cent and I award interest at this rate for 6.1 years. Future Griffiths v. Kerkemeyer The defendant by election accepts a weekly figure of $50.00 per week. However the defendant by election submits that the use of a period of 49 years, being the plaintiff's life expectancy from the tables, for the purpose of doing the arithmetical calculations on the 5 per cent present value tables is erroneous. For the reasons which I have outlined above I agree with the defendant by election's submission. Although -- 30 of 38 -- 29 Dr. Davies in his report of 20 January, 1986 expresses the opinion that the plaintiff's life expectancy "would be virtually normal", he does identify risk factors which are peculiar to paraplegia. Those factors are:- (1) Renal damage following repetitive infection in the paralysed bladder. (2) Pressure sores. Although the risk may be minimised, the particular risk takes paraplegics outside the average man. Therefore some discounting should be made of this factor. Using as a guide the present value of $1.00 per week on the 5 per cent tables adjusted for mortality (Luntz, 2nd ed., supplement table 6) the value at age 24 ceasing on death is 945. When multiplied by $50.00 per week the sum is $47,250.00. Taking, as the defendant by election submits I should do, a term of 40 years to reflect the contingencies and exigencies of life, having regard to this plaintiff, the present value of $50.00 per week on the 5 per cent tables is $45,109.00. In all the circumstances I am satisfied that provision for future household needs making all proper discounts is a figure of $45,000.00. Future, immediate and recurring expenses Save for the items which were disputed and with which I propose to deal hereunder, the parties agree_d these i terns. The plaintiff has sought provision of three wheelchairs: a standard chair at a cost of $900.00, a marathon wheelchair at $1,950.00 and a basketball/tennis wheelchair at $1,116.00. The plaintiff in the formulation of his claim has made a claim for -- 31 of 38 -- 30 these three chairs throughout the 49 year life expectancy of the plaintiff. The defendant by election has conceded two wheel chairs and there was evidence to support the concession being made. I do not consider the provision of three wheelchairs reasonable; particularly throughout the period claimed. I do not consider that it is reasonably probable that in his later years the plaintiff will be engaged in either marathons or basketball. He may however continue to play tennis on a social basis for some years. In the result, I will allow for one standard wheelchair and one tennis/basketball chair. The plaintiff has claimed for the replacement of gymnasium equipment over time. The defendant by election has argued that the plaintiff already has some equipment and credit must be given for the amounl held. Although there may be some minor benefit in favour of the plaintiff depending upon when the present equipment is to be replaced, I am satisfied that the claim of $550.00 over 10 years is reasonable. Removing provision for the marathon wheelchair and its maintenance from the agreed schedule, the annual cost is reduced to $8,275.03 per annum or $159.14 per week. Again applying the figure of 945 obtained from the actuarial table cited above to $159. 14 per week the present value is $150,387.30. This figure takes into account mortality. Taking $160.00 per week and applying the 5 per cent tables for a period of 40 years, discounting 9 years from the life expectancy for the usual contingencies, a present value of -- 32 of 38 -- 31 $144,347.00 is obtained. I am of the opinion that an award of $144,000.00 is appropriate in all the circumstances. Costs of immediate future hospitalisation, arthrodesis surgery and bursa surgery together with inspection magnifier, shower and toilet rails and tray are agreed in the sum of $31,680.74. Future costs of provision of residential amenities Evidence was given by Mr. Deshon, architect, as to the need to modify standard housing in order that paraplegics may live so far as is possible an independent life. He provided two schedules. The first contained the cost of modifyin'g an existing building. The second contained the additional costs of modifying and building a new home over and above the costs of a standard project home. I am satisfied that some award should be made under this head. The plaintiff has submitte9 that I should consider the assessment from the point of view of a new building as this is the most likely course for the plaintiff when he marries. The schedule handed up for my assistance was prepared on that basis. I am satisfied that in this case it is appropriate to deal with the question on the basis of a new building. The defendant by election did not argue that no award should be made. Rather it contested certain items which I will deal with hereunder. In opposing provision for a swimming pool I was referred to a statement of Ryan J. in Desmond v. Mount Isa City Council No. 2935 of 1979, unreported, 13 July, 1989 at pp. 59-60:- -- 33 of 38 -- 32 "The only i tern which I regard as open to serious challenge is the provision for a swimming pool. Doctor Davies gave evidence that a swimming pool would be ideal for recreation, but was not a medical necessity. Doctor Hill described swimming as a very beneficial form of exercise because it did not put any additional wear and tear on the joints and as an excellent recreational activity. However, the cases where allowance has been made for the installation of a heated swimming pool have usually been ones where the plaintiff has been rendered quadriplegic and requires hydrotherapy as part of his treatment. ,That is not the position here. Mr. Desmond is a person who is able to move about with remarkable agility. He takes an active part in sports for paraplegics, he keeps very fit through exercises, and he is able to travel to and use swimming pools if he so desires. In the circumstances, I do not consider that the cost of installation and maintenance of a swimming pool is warranted." I do not take His Honour to be saying that paraplegics do not get swimming pools . Rather, each case depends on its own particular circumstances and something more is required than mere recreation. In the instant case the plaintiff suffers from spasm and obtains from swimming relief for some hours from spasm attack. The swimming pool would give him year round assistance which may not be available from public pools during the winter months. Further, there is in this case some evidence of mild anxiety and Dr. Davies has given evidence that swimming is of assistance in maintaining self-esteem. True it is that the pool would have some recreational benefit, however, I am of the opinion that a reasonable balance may be obtained by not providing for a recreation room in any proposed dwelling and allowing only for the extension to accommodate gymnasium equipment together with a swimming pool. -- 34 of 38 -- 33 The plaintiff has sought the sum of $10,406.00 being the additional cost over prime cost of providing a shed with hoist equipment to enable the plaintiff to work on motor vehicles. It was submitted that in all probability the plaintiff would have had such a shed if he had not been injured. I am not persuaded that this would be a probability nor that the plaintiff will to any significant degree engage in motor vehicle restoration. Notwithstanding that he is slowly working on a vehicle under his parents' home, I am satisfied that in the short to medium future the plaintiff will be more concerned with his sporting activities and establishing his own home. In all. the circumstances I do not allow the claim of $10,406.00 under this head. The defendant by election has submitted that as the plaintiff is active the "Vitalcall" telephone emergency paging system ought not to be allowed. Having regard to the spasm from which the plaintiff suffers and his history of being thrown from his wheelchair because of it, I consider the cost of such a system reasonable. The plaintiff has claimed for the cost of airconditioning to the main bedroom and the living area/kitchen. The defendant by election has submitted that it be limited to the bedroom. The plaintiff gave the following evidence as to the need for airconditioning:- " BY MR. WILLIAMS: You mentioned earlier some difficulties you had in relation to the heat. How does the summer heat in Queensland affect you?-- Heat mainly gets my spasms playing up a lot and because of the feeling only chest up, it seems to be a lot more -- 35 of 38 -- 34 sensitive. I have real trouble in trying to keep cool. My body - it gets really hot at nights. It could be a cool night, but I could be still sweating out and it plays up a lot with the spasms. Is it the case you don't perspire below that sensory line you have mentioned?-- Not unless I have got a pressure sore. That is a sign of getting a · pressure sore, if I've got sweat like I have got at the moment. Ordinarily you don't perspire down there?-- No. The body mechanism to cool itself requires you to sweat excessively above the sensory level?-- Yes. Obviously that makes things very uncomfortable?-- Yeah, and I am claustrophobic a bit anyway and that can make me feel really closed in and stuffy. If you had the resources would you air-condition one or more rooms of your house?-- Yes. To make life a little easier in that respect?-- Mmm. '' This evidence was not challenged. Having regard to the problems of spasm and the plaintiff's difficulties in body temperature control, I consider that the plaintiff should not be limited to the bedroom area in hot weather and ought reasonably to have the use of both the bedroom and the living area/kitchen aircondi tioned ( for a similar approach see Keefe v. Spring No. 3649 of 1981, 15 June, 1984 per Shepherdson J. at p. 29). The plaintiff did not press the $2,000.00 claim for cost of alterations on resale. The recurring costs amount to $48.00 per week. Doing the exercise I have previously done the actuarial table gives a value of $45,360.00 and the 40 year period on the 5 per cent tables yields a figure of $43,304.00. I find that a reasonable figure in all the circumstances is $43,000.00. The additional costs therefore are:- -- 36 of 38 -- 35 Additional cost of dwelling Swimming pool Airconditioning (bedroom) Airconditioning (living area/kitchen) Extension for gym equipment Capitalised recurrent charges Future impairment of earning capacity $ 48,764.00 $ 26,510.00 $ 1,860.00 $ 1,860.00 $ 4,920.00 $ 83,914.00 $ 43,000.00 $126,914.00 As I have indicated above I consider that in all probability the plaintiff would have spent the substantial.part of his working life as a sales assistant probably in the sporting area. At the present time the nett weekly award wage of a shop assistant is approximately $275. 00. Assuming a working life to age 60 on the 5 per cent table 6 in Luntz, to which I have referred above, the present value of $1. 00 is $862. 00 at age 24. The table allows for mortality. This produces a present value of $237,050.00. Taking the position contended for by the defendant by election and allowing for 30 years' future employment, which period would take into account the usual contingencies and exigencies of life, $275.00 on the 5 per cent tables has a present value of $222,891.00. Neither of these calculations takes into account the possibility of the plaintiff earning some income in the future from his residual capacity. As I have indicated above, I consider that remote. -- 37 of 38 -- 36 In all of the circumstances_ having regard to the limited education of the plaintiff, the difficulty he would experience when competing with skilled or semi-skilled labour on a depressed labour market, the usual exigencies of life and the slight possibility of his utilizing his residual earning capacity, I award $200,000.00 under this head. Therefore total damages are assessed as follows:- 1. Pain, suffering and loss of amenities 2. Interest on past pain and suffering on $40,000.00 at 6 per cent for 6.1 years 3. Past economic loss 4. Interest on 3 above at 6 per cent for 6.1 years 5. Special damages 6. Interest on $17,120.00 of 5 above at 6 per cent for 6.1 years 7. Past Griffiths v. Kerkemeyer 8. Interest on 7 above at 6 per cent for 6.1 years 9. Future Griffiths v. Kerkemeyer 10. Future, immediate and recurring expenses 11. Future cost of residential amenities 12. Future impairment of earning capacity $130,000.00 $ 14,640.00 $ 65,000.00 $ 23,790.00 $ 81,963.30 $ 6,265.92 $ 27,517.00 $ 10,071.22 $ 45,000.00 $175,680.74 $126,914.00 $200,000.00 $906,842.18 There will be judgment for the plaintiff against the defendant by election in the sum of $906,842.18 with costs including reserved costs, if any, of and incidental to the action to be taxed. -- 38 of 38 --