Barra v Reef Magic Cruises
[2008] QSC 100
•19 May 2008
SUPREME COURT OF QUEENSLAND
CITATION:
Barra v Reef Magic Cruises [2008] QSC 100
PARTIES:
DAVID MARTIN BARRA
(Plaintiff)
v
REEF MAGIC CRUISES PTY LTD
(Defendant)FILE NO/S:
516 of 2003
DIVISION:
Trial
PROCEEDING:
Trial
ORIGINATING COURT:
Supreme Court at Cairns
DELIVERED ON:
19 May 2008
DELIVERED AT:
Cairns
HEARING DATE:
12 – 14 November 2007, 7 February 2008
JUDGE:
Jones J
ORDER:
Judgment for the defendant
Order that the plaintiff pay the defendant’s costs of and incidental to the claim to be assessed on a standard basis.
CATCHWORDS:
TORTS – NEGLIGENCE – ESSENTIAL OF ACTION FOR NEGLIGENCE – STANDARD OF CARE – Generally – Where the plaintiff suffered barotraumas and resulting tinnitus from undertaking a resort dive – Whether the defendant was negligent for not refusing to allow the plaintiff to dive – Whether the defendant was negligent for failing to appropriately supervise the plaintiff
TRADE PRACTICES ACT 1974 (CTH) AND RELATED LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATION – Misleading and deceptive conduct generally – Misleading or deceptive conduct: what constitutes –Whether the plaintiff was mislead by the company’s brochure to believing a medical examination would be conducted on board
Trade Practices Act (Cth) 1974 s 52
Workplace Health and Safety Regulation (Qld) 1997 s 86CRosenberg v Percival (2001) 205 CLR 434 applied
COUNSEL:
Mr C J Ryall for the plaintiff
Mr M T O’Sullivan for the defendantSOLICITORS:
Shine Lawyers for the plaintiff
Moray & Agnew for the defendant
On 5 November 2000 the plaintiff participated in an introductory scuba dive (also known as a resort dive) under the control of the defendant. The dive was undertaken on Saxon Reef on the Great Barrier Reef near Cairns. The plaintiff claimed that in the course of the dive he suffered barotraumas and, as well, tinnitus in his left ear which has persisted and has resulted in psychological problems. By this action he claims damages for personal injuries on the grounds of the defendant’s negligence, breach of contractual duty and breach of the provisions of the Trade Practices Act 1974 (TPA).
Background facts
The plaintiff was born on 19 February 1952 and was thus 48 years of age at the time of the incident. He is now 56 years old.
His introduction to the defendant company came by way of his receiving a voucher for a cruise on the defendant’s vessel as a gift from his mother who won it as a prize. To that voucher, he said, was attached a promotional brochure which offered customers the opportunity to take an introductory dive at a cost of $50. The defendant did not read this promotional brochure. He made the decision to do the dive only when he attended the defendant’s premises prior to boarding the vessel. The defendant claims the price of the dive offered at this time was $55. The difference in the price was raised an issue as to the precise terms of the offer which depended upon which version of the defendant’s promotional brochures was relied upon by the plaintiff. The two documents are respectively exhibit 2 and exhibit 18. The defendant claimed that the brochure referred to by the plaintiff was superseded in the year 2000 when the Goods and Services Tax was introduced thus making it necessary for the change.
The relevant difference between the two brochures was that the terms in the brochure which the plaintiff had in his possession but did not read[1] were:- “Introductory Dive: (Subject to on board medical check)”. The later version stated:-
[1]Transcript 14/25
“Conditions for Special Offer:
…
Certain medical conditions (e.g.: asthma, epilepsy, high blood pressure) may exclude people from diving. Check when boarding. A medical questionnaire must be completed on board.”
For reasons later stated, nothing turns on this difference between the two brochures in defining the duty of care imposed by law upon the defendant.
The major focus is on a further document which was actually used, namely the Medical Declaration Form. This document included a questionnaire about physical health which was completed by the plaintiff and witnessed by his wife before undertaking the dive and as well, contained a “waiver release” in the following terms:-
“In consideration for the scuba dive being undertaken the person, for themselves and for their estate, herby releases, discharges, waives and relinquishes any and all suits, claims, actions, causes of actions of the like against REEF MAGIC CRUISES PTY LTD (“the company”) and its servants or agents in respect of any loss or damage suffered by the person as a result of delay or cancellation of any scuba dive or for any loss or damage to the person or property of the person sustained during the scuba dive or otherwise in connection therewith including but not limiting to, loss or damage suffered during or as a result of the person having engaged in scuba diving activities whether such loss or damage was caused or contributed to by any equipment supplied and/or services by the company, its servants or agents and whether loss or injury was caused or contributed to by any negligence or breach of duty on the part of the company, its servants or agents or otherwise.”
The questionnaire completed by the plaintiff enquired whether he had or suffered, or continued to suffer from a list of physical conditions. The plaintiff responded by indicating that he had not suffered from those conditions.[2] Two items to be set out as they appear in this questionnaire:-
[2]Ex 3
“Have you had/or do you suffer from any of the following:-
Yes No Comments Chronic Sinus ü Some sinus problems at times Recurrent ear problems when flying ü
The plaintiff was not, in fact, suffering any physical problems at the time of the dive. In cross-examination he was asked –
“You felt your sinuses were good? – Everything felt OK.
And you didn’t see that there was going to be any problem? – No problem at all.”[3]
[3]Transcript 74/10
The plaintiff did have a prosthetic eye but that condition did not give rise to any risk on the dive.
Having identified the one past physical problem in these terms, the issue was whether the defendant should have done more to clarify the nature of the problem and whether it should have refused to allow the plaintiff to undertake the dive.
As to whether this should have happened the compelling medical opinion is that the condition so described would not, with other precautions being in place, have precluded a safe dive.[4] For example, Dr Black, consultant ear nose and throat specialist, said that he would not have precluded a person with that described condition from diving.[5] Similarly, Dr Bennett would not have advised such a person “not to undertake this dive”[6] but would have advised such a person to be more alert to any difficulties.
[4]Precautions relating to instructions and the progressive checking by an authorised instructor as to how the dive should be conducted.
[5]Transcript 35/40
[6]Transcript 64/20
Had clarification been sought about the entry on the questionnaire it would have been revealed that the plaintiff’s sinus problem occurred “about twice a year” and “would clear up after a week or so”.[7]
[7]Transcript 32/25-30; 156/10-20
The plaintiff also conceded that had contact been made with a dive doctor and he had been given advice referred to above by telephone then he would have pursued his intention to undertake the dive.[8] However, later in his cross-examination he said he would have reconsidered if there had been a substantial risk of damage to his ears.[9]
[8]Transcript 71/20
[9]Transcript 73/40-55
When an intending diver indicates on the medical declaration form some physical limitation the dive supervisor is required to make further inquiries. An example of this procedure is evident from the defendant’s staff’s reaction to the responses given by the plaintiff’s dive companion, Ms Ning.[10] In the plaintiff’s case I accept that there was some interaction with the dive staff when he inquired whether his having a prosthetic eye would cause a problem.[11] Mr Henry, the dive supervisor of this occasion, noted that whilst he had no direct recollection of the plaintiff, he was probably the person who spoke to him. He described his practice of asking the customer to equalise during a discussion of this kind.[12] I accept on the balance of probabilities that such an inquiry was made on this occasion.
[10]Ex 15; Transcript 211/5-212/10
[11]Transcript 15/55
[12]Ex 13 para 6
In summary, the evidence shows that at the time of the dive, the plaintiff had some limited past problem with his sinuses but at the relevant time he had no problem. Whilst he had raised a concern at that time and had the detail been communicated to a medical practitioner experienced in certifying fitness for dives, the plaintiff would have been cleared to do so. I am satisfied he would, in those circumstances, have undertaken the dive.
As to the circumstances of the dive, there is little in issue between the parties. The instructor claims to have followed the usual procedure laid down in various regulatory instruments. I accept the evidence of Mr Henry and Mr Klassman as to the procedures followed on the defendant’s vessel. Each is an experienced dive instructor and was involved in the diving operations on the relevant day. In broad terms their evidence is consistent with the plaintiff’s recollection. The difference in detail - whether the first dive was to a depth of 1.5 metres or 3 metres – is resolved by the fact that the depth was determined by the equipment on the vessel. Accordingly the recall of the defendant’s witnesses is likely to be more accurate than the plaintiff’s as this was the plaintiff’s only experience on this vessel and he would not have the detail.
The intending divers were given oral instructions about the dive procedures, including hand signals that were to be used, whilst on board the vessel. Again, after the equipment had been fitted and whilst waiting on the dive board at the rear of the vessel, the instructions were repeated and a demonstration given. The intending divers were given further instructions after entering the water, with emphasis on the need to equalise pressure between the ears and head passages. The equalisation of pressure is also referred to in the medical evidence as valsalva and auto-inflation.
The dive was undertaken in two stages. Firstly, with the instructor and one diver going to a point about 3 metres below the surface where the instructor would ensure that equalisation of pressure had occurred and the diver was comfortable. Secondly, after each diver was comfortable at the 3 metre mark, there would be a gradual descent by the group to a depth of 8 metres. The regulations prescribe that for an introductory dive an instructor must remain in physical contact with each diver and preclude any instructor being responsible for more than four divers at a time.[13] In the circumstances of the plaintiff’s dive the defendant’s instructor was responsible for the plaintiff and only one other diver.
[13]Workplace Health and Safety Regulation (Qld) 1997 s 86E
At the first stage the plaintiff was able to equalise satisfactorily.[14] Whilst the plaintiff estimated the depth to be only 1.5 metres, I am satisfied that the point when this occurred was at the end of the bar approximately 3 metres below the surface. At this point the plaintiff agreed in cross-examination that he “had no problems whatsoever”.[15]
[14]Transcript 20/1
[15]Transcript 29/15
It was when the second descent while the instructor was linked to the plaintiff, that the plaintiff experienced the difficulty. He described it in the following terms:-
“So as we started going down I felt pain in my left ear and a high pitched sound like a high pressure relief valve blowing off.
Now, a high pressure relief valve, you – you’ve thought of that. Is that something that you’ve heard go off before that day? – Well, you hear steam trains and the sugar mill and different things that let things off at different times.
For those of us that haven’t heard those recently, what – what would be another noise like that? Can you think of anything readily? – Like a siren or – some sort of siren.
Okay. So you – you’ve had those sensations. What – what happened from there? – Well, when I felt that sensation I tapped the diving instructor on the shoulder and pointed to my ear and – and told him there was something going wrong with my ear.”[16]
[16]Transcript 20/42
The instructor stopped the descent and signalled the plaintiff to equalise, which he did, and the descent continued. The plaintiff said:-
“We started going down and as we went down further the pain in my head seemed to go. We kept going down until we got to the sandy bottom and we all sat on the bottom of the sand and there was some coral and rock around us but where we were sitting was sand and we just sat down there and he pointed to some fish and we just looked at what was at the bottom as far as what was there with fish and whatever.
And after you’d done that, what happened from there? – After we done that we got together again arm in arm and – and started going back to the top.
And did you get to the top? – We got to the top okay.”[17]
[17]Transcript 22/20
The records show that the duration of the dive was for 20 minutes. The plaintiff, in cross-examination, said that as he continued the descent the pain “got better” and whilst on the bottom he “had no difficulties at all”.[18] When he came to the surface the plaintiff had blood coming from his nose. This indicates, and it is not disputed, that the plaintiff suffered some barotraumas in the course of the dive.
[18]Transcript 30/18
The main complaint which the plaintiff seeks to attribute to the dive is the condition of tinnitus in his left ear. It is in respect of this complaint that there is a serious challenge to its relationship to the dive and generally to the plaintiff’s credibility. Otherwise the only injury was barotraumas to sinuses which resolved in a short time and would not justify the making of a claim for damages.
The injury
The plaintiff described the sensation in his ear when he was back on board as feeling that his head was “water-logged” and a ringing noise in his left ear. That noise was a lot quieter than that which he had experienced during the course of his descent.[19] Despite this level of symptoms he made no complaint to anyone on board the vessel.
[19]Transcript 23/23
Some six days later the plaintiff consulted a general practitioner Dr Crowe. Dr Crowe’s clinical notes show the plaintiff complaining that his right ear had been blocked since the dive. The plaintiff emphatically denied in his evidence that he referred to his right ear. However, that this was his problem is consistent with his entry in a contemporaneous diary.[20] Neither the medical notes nor his diary makes any reference to any ringing noise on that date. Both ears showed signs of barotraumas. He was able to clear the left ear but not the right.
[20]Ex 16
The plaintiff next saw Dr Crowe on 27 November 2000 when a complaint of tinnitus in his left ear was recorded. Two days later he saw Dr Dressler, his usual general practitioner, and referred to crackling and popping ears not improving.[21] No distinction was made between ears on this occasion. He was later referred to Dr Wells, an ear, nose and throat surgeon. Dr Wells reported “a bi-aural high frequency sensory-aural hearing loss worse in the left ear” and “tinnitus, due to acoustic trauma”.[22] In his oral evidence Dr Wells corrected this statement to read that the tinnitus was due to “barotrauma”.[23] He justified this on the basis of the asymmetry in the high frequency drop off between his left and right ears as shown on the audiogram and because of the proximity of the onset of symptoms with the dive.
[21]Ex 9
[22]Ex 8
[23]Transcript 112/20
For the purpose of this proceeding the plaintiff has been examined by or had his condition commented upon by three other medical consultants on ear, nose and throat conditions:-
Dr Glennie – 10 April 2003; 24 April 2004 Ex 10
Dr Black – 8 March 2004 Ex 4
Dr Hodge – 31 January 2007 Ex 11
Opinions were given by two medical practitioners with expertise in dive medicine, neither of whom actually examined the plaintiff.
Dr Bennett – 14 September 2006 Ex 7
Dr Kokotis – 5 April 2006 Ex 12
Dr Glennie who examined the patient on 10 April 2003 and again on 24 April 2003, furnished a number of reports about his examination and in response to questions from legal representatives.[24] He noted the asymmetry of hearing loss disclosed in the audio-gram, the delay in the onset of tinnitus, the absence of other common associated symptoms (dizziness, vertigo) and was unable to attribute the plaintiff’s tinnitus to any particular cause. He felt “the most likely possibility was noise induced hearing damage. The second most likely cause was inner ear barotrauma”.[25] Dr Glennie referred to recent studies reported in a specialist journal, which indicated that the condition can occur without the patient experiencing some of the common symptoms referred to above. He remained, however, concerned that symptoms of inner ear trauma during the dive was of short duration and disappeared as the dive continued.[26]
[24]The first report is incorrectly dated 10 March 2003, see Transcript 171/50
[25]Transcript 178/45
[26]Transcript 175/50-176/10
Dr Black took the view that there was some damage to the middle ear and opined that the left ear tinnitus was in keeping with that. The left-sided asymmetry hearing loss was consistent with barotraumas and it predisposed the plaintiff to the development of tinnitus. He assessed the plaintiff’s loss at 4.8% loss of hearing or 0.48% of the whole person.
Dr Hodge agreed with this assessment of disability. He explained the mechanism of barotraumas which the plaintiff undoubtedly suffered. He opined that tinnitus occurred quite commonly in combination with deafness caused by fluid in the inner ear. As well as the obvious barotraumas to his sinus, the plaintiff developed some barotraumas to his ears but did not have any manifestation of it in his left ear when examined by Dr Crowe six days later. For this reason Dr Hodge thought it was unusual for the plaintiff to develop hearing loss.[27] The symptoms of which the plaintiff complained in his right ear would have provided a cause for tinnitus in that ear.[28]
[27]Transcript 189/30; 196/10
[28]Transcript 198/30
The reports of the dive specialist practitioners did not offer any comment on the question of whether the tinnitus was caused by the dive but were limited to the question of whether they would have permitted the plaintiff to undertake the dive in the circumstances.
The plaintiff described the experience of a high pitched noise in his ears as he commenced his second stage descent. Though he equalised and was able to continue the dive he continued to experience some symptoms. There is a likelihood that he suffered some inner ear damage at that time in the manner explained by Dr Hodge. As Dr Glennie explained, he must have auto-inflated, otherwise “he would have been very uncomfortable at that depth”.[29] Thereafter the plaintiff complained of generalised symptoms, such as blocked ears and “water-logged” head. At the time of his seeing Dr Crowe, he complained specifically of pain in his right ear but it is clear that the condition continued to affect both ears to some degree and that fact continued to the time of his seeing Dr Dressler on 29 November 2000. At that time Dr Dressler’s notes described the plaintiff complaining of “crackling and popping ears” which were not improving.[30] By this time Dr Crowe had already described the condition of tinnitus in the plaintiff’s left ear.
[29]Transcript 176/5
[30]Ex 9
Whilst there is considerable uncertainty and divided medical opinion about whether the tinnitus was caused by the dive, I have come to the view that on the balance of probabilities the link has been established. I accept the opinion of Dr Wells and Dr Black that there was barotraumas to the inner ear on both sides. The trauma was no doubt minor in the sense that it did not prevent the plaintiff equalising, nor did it produce other common symptoms which the recent research indicated are not always present. My finding is guided particularly by the opinion of Dr Wells and his reliance upon the asymmetry of the high frequency loss between the right and left ears. There is also the contemporaneity between the dive and onset of the condition. In the main, the plaintiff’s complaints between the dive and the diagnosis were of a general nature and did not discriminate between right and left sides. I am satisfied that he did not suffer the condition of tinnitus before the dive as he had frequently attended upon his general practitioner for treatment of a blood condition and it is highly likely he would have complained of the condition had it existed.
Accepting that the condition has to be considered in assessing damages it is sufficient to say that it has had a profound effect on his life. Dr Ding, consultant psychiatrist, assessed the impact of this condition on the plaintiff’s social functioning, his concentration, his capacity to work and his tendency to isolate himself and avoid stressful situations. Dr Ding diagnosed the plaintiff as suffering from a Moderate, Chronic Adjustment Disorder with Mood Symptoms. He assessed the loss of 25% of the whole person.
Liability
It is a matter of agreement that the defendant owed a general duty of care to the plaintiff. The plaintiff asserts that the duty was breached by the defendant’s failure, in the circumstances of his disclosed sinus problems, to warn him of the increased risk of barotraumas and that such an injury could lead to permanent damage. Allied to that is the assertion that the duty was breached by failing to provide an examination by a medical practitioner.
The sinus condition as disclosed by the plaintiff in the questionnaire has to be considered in the context of his condition on the day of the dive, which I find was normal in the sense that he was able to equalise effectively before the dive. I am satisfied that the importance of the procedure was stressed during the instruction and again after the underwater apparatus was fitted. The fact that the plaintiff had no difficulty at the 3 metre depth would have indicated to the defendant the plaintiff’s capacity to equalise. The risks associated with scuba diving are generally known and the plaintiff’s knowledge of the risk was reinforced by the emphasis on safety in the instruction and the terms in the medical declaration form in the following terms:-
“Your diving instructor will check this form. He/she may declare as a result that you need a full medical before diving. He/she may decide that you should not dive. To do so may put your life at risk or that of the instructor. In the interests of your safety it is important that you complete all answers to every question.”[31]
[31]Ex 3
The risk of the type of ear damage suffered by the plaintiff is not high. Given the level of conflict between the medical specialists, some may not even have adverted to the possibility. But the fact that it has happened in this instance, does not allow hindsight to colour what was reasonable conduct on the part of the defendant’s staff. See Rosenberg v Percival.[32] A warning in circumstances where there was no indication of any increased danger would not have caused the plaintiff to change his intention to dive. The clear tenor of his evidence is that he would have undertaken the dive unless advised not to by a medical practitioner.[33] The evidence discloses that no such advice would have been given.
[32][2001] 205 CLR 434 at para 16
[33]Transcript 71/10
I am satisfied that the circumstances did not require any different warning being given to the plaintiff beyond those routinely given to introductory divers. I am satisfied that if the plaintiff had consulted a medical practitioner he would not have been given any warning which would have caused him to forego the dive.
The grouping of the alleged breaches found in paragraphs 15(f)-15(i) of the Amended Statement of Claim may be considered under the general heading of a failure to supervise the dive. It was submitted on behalf of the plaintiff that the plaintiff’s experience of pain at the commencement of the second descent ought to have caused the dive instructor to surface to relieve the pressure or to investigate the problem.
The difficulty for the plaintiff in this contention is that the instructor can only act upon the signals given by the diver and of his own observation of whether the diver was having a problem. The instructor responded to the plaintiff’s signal of distress when it was given by stopping the descent and giving directions for the plaintiff to equalise. The plaintiff was obviously successful in doing so and thereafter continued the dive without any outward sign of any further problem.
On the day of this particular dive Mr Klassman was one of the three dive instructors on duty though he cannot recall whether he was responsible for the plaintiff. He explained how it came about that there was only two persons diving with the one instructor.[34] Whoever the instructor was, he was able to maintain closer supervision of the plaintiff than was usual. I am satisfied that the instructor remained in close visual and physical contact with the plaintiff. The plaintiff in evidence described the level of contact with the instructor which is consistent with this. I am satisfied that there was no failure in the required level of supervision by him.
[34]Transcript 225-6
In addition to asserting that the defendant owed a general duty of care to him, the plaintiff argued that the terms of the brochure constituted an express term that the defendant would provide an onboard medical check and that the dive was subject to the check being satisfactory. See para 4 above. The plaintiff contends that this was not done.
The medical check contemplated by the terms in the brochure is that which ordinarily follows the completion of the questionnaire. It would be naïve to suggest that each person attempting an introductory dive would submit to an examination by a medical practitioner on board the vessel. The regulations specifically exclude this requirement.[35] I am satisfied that when the plaintiff handed in the Medical Declaration Form there was a discussion with the defendant’s employee about both the sinus problem and his having a prosthetic eye. On balance, it is likely that the discussion was with the dive supervisor. Both the plaintiff and his wife were uncertain about the detail.[36] The supervisor had access to a qualified medical practitioner and the evidence discloses that he availed himself of that access in relation to another diver. All that was offered by the written terms was a medical check and not a medical examination. Given the medical opinion of Drs Bennett, Kokotis and Hodge, had the defendant been required to do more, the outcome would have been the same.
[35]See Regulation 86C
[36]Transcript 17/40; 118/10; 122/25
I am unable to find that there was any breach of duty, contractual or otherwise, on the part of the defendant. This makes unnecessary any consideration of the effect of the waiver provision which was additionally relied upon by the defendant. That provision is not material, in any event, to the claim under the Trade Practices Act to which I now turn.
Trade Practices Act
The allegation of the breach of the Trade Practices Act relies upon the terms of the brochure which the plaintiff said he received with the cruise voucher. This brochure advertised the price of an introductory dive at $50. The defendant’s evidence is that the brochure was superseded after the introduction of the Goods and Services Tax by reason of which the cost of the dive was increased to $55. I do not accept the plaintiff’s evidence that he indeed only paid the sum of $50 for the dive on this occasion. I am satisfied that the contractual offer made by the defendant and accepted by the plaintiff was in the terms of the later brochure – Ex 18. There was nothing in the terms of that document or in any express words which would indicate that a medical examination would be undertaken. Were my finding to the contrary and the terms of the earlier brochure applied the plaintiff has not satisfied me that he in any way relied upon the terms set out in that document so as to make out a claim under the TPA. The plaintiff also relied upon some general terms in both brochures:-
“Our friendly instructors will give first time divers an unforgettable underwater experience…”
Terms such as this are mere puffery and, in any event, it has not been shown that the plaintiff relied upon them.
An alternate basis for alleging misleading and deceptive conduct was the defendant’s failure to have warned the plaintiff of the increased risk of injury in the circumstances of his disclosed sinus condition. For the reasons given above I am unable to find that those circumstances bespoke any increased risk known to the defendant. I am unable to conclude that there has been any breach of the Trade Practices Act.
Despite my view that the plaintiff has suffered a debilitating injury as a consequence of undertaking this dive, I am not satisfied that the injury was due to any shortcoming in the conduct of the defendant, its employees or agents. Accordingly I must find that the plaintiff’s claim fails. I will nonetheless assess damages.
Assessment of damages
I have referred to the assessment provided by respective medical practitioners as to the nature and extent of the plaintiff’s two injuries. The most significant consequence of the psychological effects of the plaintiff’s disorder, is the impact on the plaintiff’s work performance and his business career. At the time of the incident the plaintiff was a partner with his mother and his two brothers in a family business, Bartrac Pty Ltd. The business was a motor vehicle and machinery dealership, trading in both new and second-hand vehicles with allied servicing and provision of parts. The brothers shared the work responsibilities, with the plaintiff’s role being as manager of the Sales Department. The partners drew wages from the business but the profits in the main were reinvested in the development of the business. The plaintiff continued in this role to the date of trial but I accept that his performance of his duties had significantly reduced and there was the high likelihood that he would cease involvement in the business, with his interests being acquired by his brothers.
Independently of the family business, the plaintiff carried on in his own name a machinery hire business at the property where he lived. The administration of this business was essentially performed by the plaintiff’s wife, although he would occasionally help out with the servicing and maintenance of the equipment.
A third source of income for the plaintiff was a small cane farm which he owned jointly with his wife but which, by the time of trial, he had given up his involvement in favour of his children.
The plaintiff’s contribution to each of these ventures has been effected by his reduced capacity to work. I attribute this reduced capacity directly to the psychological effects of his tinnitus. Notwithstanding this reduction in capacity he has received full wages and share of profits to the date of trial. It has to be noted that the plaintiff suffered with other debilitating conditions prior to this incident which required ongoing treatment and which made more profound the impact of the tinnitus. I am satisfied that he would have continued to at least normal retirement age in these businesses had he not suffered the subject injuries.
The plaintiff’s reduced contribution to the hire business is difficult to quantify, since much of his work is now performed by others or impacts on profitability in a subtle way. Similarly, in his exit from the cane farming operation it is not easy to assess whether that has been an economic advantage or disadvantage. As a consequence, the impact of his disabilities upon his earning capacity, past and future, can only be considered in a global way.
The most direct challenge by the defendant to the plaintiff’s claim for economic loss, is his evidence of slowing down at work. The plaintiff was supported by the evidence of an employee, Mr Picco, but did not call either of his brothers to confirm his evidence as to disability or to speak as to his future in the family business. Despite this I am satisfied by a consideration of the impacts of his condition as described by Dr Ding, that the plaintiff would have had difficulty in fulfilling his managerial duties in the company structure. These same impacts would seriously hamper his prospects of gaining equivalent fulltime employment. This is not a case where precise calculations of economic loss can be attempted. Each of the parties has resorted to submissions based upon global assessments. I propose to do the same in providing one allowance for past and future loss, noting that the amount for the past period is limited by reason of the continuation of the plaintiff’s drawings from the family business and the limited impact his injuries have on the profitability of the hire business. I assess the total allowance for economic loss at $100,000.
For general damages I allow the sum of $60,000, one half of which is applicable to the past period. I allow interest on that sum of $30,000 at 2% for 7 years which calculates to $4,200. Special damages are assessed in the sum of $6,404.75. I allow interest on $4,000 of that sum for 7 years at 5%, which calculates to a further allowance of $1,400. I allow for future treatment the sum of $1,000. In summary then, I assess damages as follows:-
Economic Loss $100,000.00
General Damages $ 60,000.00
Interest thereon $ 4,200.00
Special Damages $ 6,404.75
Interest thereon $ 1,400.00
Future treatment $ 1,000.00
$173,004.75
Orders
I give judgment for the defendant and order that the plaintiff pay the defendant’s costs of and incidental to the claim to be assessed on a standard basis.
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