| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BRYAN -v- WARRICK & ANOR [2003] WADC 174 CORAM : FRENCH DCJ HEARD : 27-28 MARCH & 23 APRIL 2003 DELIVERED : 8 AUGUST 2003 FILE NO/S : CIV 1133 of 2001 BETWEEN : MURRAY BRYAN Plaintiff
AND
JOHN GEOFFREY WARRICK
JUDITH WARWICK
Defendants
Catchwords: Damages - Assessment - Personal injuries - Fall onto knees - Permanent disability to both knees - Loss of earning capacity
Legislation: Nil
Result: General damages $15,000
Loss of earning capacity $120,000
Special damages $1,800
(Page 2)
Representation:
Counsel:
Plaintiff : Mr K N Allan
Defendants : Mr J R Brooksby
Solicitors:
Plaintiff : J McManus & Associates
Defendants : Greenland Brooksby
Case(s) referred to in judgment(s):
Husher v Husher (1999) 197 CLR 138
Case(s) also cited:
Jones v Dunkel (1959) 101 CLR 298
Purkess v Crittenden (1965) 114 CLR 164
Scott v Liddicoat, unreported; FCt SCt of WA; Library No 4517; 25 May 1982
Watts v Rake (1960) 108 CLR 158
(Page 3)
1 FRENCH DCJ: On 26 May 2000 the plaintiff was a patron of the Dianella Tavern operated by the defendants. He got down from a stool at the bar, turned around and tripped over a dog that was lying on the floor. As a result of his fall the plaintiff sustained soft tissue injuries to both knees. He claimed damages for permanent disability to his knees including loss of earning capacity. The defendants denied liability and disputed the extent of the damage suffered by the plaintiff. On 4 September 2002 the plaintiff's claim was heard before Blaxell DCJ who found that the defendants were negligent but that the plaintiff was contributorily negligent to the extent of 25 per cent of the damages to be awarded. The assessment of damages was not able to be dealt with at the time of the trial.
2 The plaintiff claims to have suffered a permanent disability to both knees. Although he has continued to work he claims that his disability prevents him from being able to work to the same extent and at the same rate and that has resulted in a loss of earnings. 3 The plaintiff is a self-employed carpenter and cabinet maker. At the time of the accident he was aged 64 but was still actively engaged in running a business that carries out shop fitting and cabinet making in the name of M & A Bryan Pty Ltd. The nature of the business involves a variety of skills including cabinet making, tiling and carpet laying. The plaintiff claims that as a result of his disability he has been unable to work at the same rate and is obliged to avoid extended periods working on his knees. It is claimed that as a consequence of this the profitability of the business has decreased. The plaintiff claims that it is not simply a matter of being able to engage assistance from sub-contractors to provide the necessary labour as the multi-skilled nature of the work and the fact that it is often fitted in in short bursts of activity after hours and on weekends makes this not financially viable. 4 The plaintiff claims that the business has not been able to obtain work at the same level as he has had to factor in costs of extra labour so that his quotations for various jobs have been too high. 5 The defendants claim that the injury the plaintiff sustained to his knees as a result of the accident in May 2000 had resolved within a few months. It is claimed that his continuing symptoms are due to chronic inflammation that is not related to the accident, or alternatively, to a degenerative condition occurring because of his age and nature of his occupation. In any event the defendants dispute that the plaintiff's disability is productive of any economic loss as it is claimed that there has
(Page 4)
been no decrease in the profitability of the business as a result of his disability.
Causation and extent of disability 6 At the time of the accident the plaintiff was aged 64. For almost all of his working life he had worked as a carpenter/joiner working mainly as a cabinet maker and in other phases of the building trade. For many years prior to the accident he had been working in the more specialised area of shop fitting operating in the last six years as a small company in the name of M & A Bryan Pty Ltd with himself and his son as the main workers together with assistance from a grandson and sub-contractors as required. He stated that the business did a significant amount of work for Australia Post. He explained that this involved a complete fit-out of a post office including making up the shop counters and cabinets and then taking them on site, installing them and providing all of the work that resulted in a complete installation. Because of time pressures and the need to complete the work out of hours it was difficult and uneconomical to employ sub-contractors. He explained that the nature of the work did not lend itself to the use of sub-contractors as the requirement for a specific tradesman such as a tiler or carpet layer or painter may only be for short periods. What was required was a worker like the plaintiff who had the skill and experience to be able to turn his hand to different kinds of work within a short period of time. 7 The plaintiff attended his family doctor, Dr Kessell, soon after the accident and he was prescribed anti-inflammatory medication and the application of ice packs. When the swelling and pain persisted he was referred to an orthopaedic surgeon, Dr Sneddon. He was referred for physiotherapy and took a few weeks off work. Although the problem of swelling and pain was present in both knees it was worse in the right knee. After the period of rest and physiotherapy the symptoms improved so the plaintiff returned to work. However, he found that when he resumed work on a full time basis the symptoms returned. The plaintiff stated that he has continued to experience symptoms of swelling and pain in his knees and that has reduced the range of activities he is able to undertake in the course of his work. The plaintiff described himself at running at about 60 per cent of his pre-accident capacity. 8 Dr Douglas Sneddon is the plaintiff's treating orthopaedic surgeon. Dr Sneddon provided a number of reports describing the course of the plaintiff's symptoms and his diagnosis based on clinical examination and radiological investigations. Dr Sneddon stated that when the plaintiff first
(Page 5)
attended in July 2000 his diagnosis was of prepatellar bursitis in both knees with the symptoms worse in the right knee. Dr Sneddon explained that this is an inflammation of the structure that lies beneath the skin and the knee cap but is sometimes referred to as "housemaid's knee". His opinion was that the bursitis was caused by the direct trauma to the patellar regions in both knees as a result of his fall. He had recommended to the plaintiff that he undergo physiotherapy and avoid kneeling on his knees. In a report dated 29 August 2000, Dr Sneddon advises that the plaintiff had told him that his symptoms had improved and that both his knees were basically pain free and he was able to continue working. 9 Dr Sneddon stated that the plaintiff came back to see him two months later as he said that he had had a recurrence of his knee symptoms since he had been back at work spending hours at a time kneeling on his knees. Dr Sneddon stated that although that appeared to be a recurrence of his previous symptoms there were some features to suggest that some symptoms were arising from the joint between the knee cap and the underlying knee. Dr Sneddon suggested that the plaintiff have an MRI scan to see if there had been any articular surface damages to the patellar as a result of the fall. The MRI scan was performed on 19 December 2000. He stated that it confirmed his original diagnosis of prepatellar bursitis and showed that there had been no acute injury to the articular surface or the moving surface of the knee cap. He stated that it did show that there was some early degenerative changes occurring. 10 In a report dated 21 February 2001 Dr Sneddon stated that in his opinion the plaintiff would continue to: "experience significant and ongoing disabilities with his knees whilst he continues to work in a job which involves him being down working on his knees in a kneeling position". 11 When Dr Sneddon reviewed the plaintiff at the end of July 2002 he noted that the plaintiff was continuing to suffer from bilateral knee pain which he felt was becoming worse. The plaintiff advised that he was no longer doing work in a kneeling position but that his legs felt weak with lifting and were also stiff. After further clinical examination and a second MRI scan Dr Sneddon was of the opinion that the plaintiff's symptoms were coming from the patello femoral joint with demonstrated articular cartilage degenerative changes rather than the previous prepatellar bursitis. Dr Sneddon explained that he felt that the continued kneeling on his knees would aggravate the bursitis and the symptoms from the prepatellar femoral joint would be aggravated by squatting and going up
(Page 6)
and down steps and ladders. Dr Sneddon does not agree with Dr Michael Alexeeff, the orthopaedic surgeon called by the defendants, that the plaintiff's current symptoms and permanent disability are not due to any injury suffered as a result of the accident. He stated that at no time had he seen the plaintiff basically free of symptoms. He stated that he interpreted the sequence of events that have occurred since the accident as a progression of an acute bursitis caused by the fall developing into a chronic situation with the addition of changes in the patellar femoral joint which may well have been precipitated by or come on sooner than otherwise as a result of the plaintiff's fall. In cross-examination Dr Sneddon conceded that that was not something that could be proved but that was his opinion based on his clinical observations and the plaintiff's history. Dr Sneddon pointed out that although it was possible that the plaintiff could have developed bursitis independently of the accident and that the degenerative changes apparent in the MRI may well have become symptomatic if the accident had not occurred he felt that it was significant that until the accident the plaintiff stated that he had never had any symptoms in his knees. 12 Dr Michael Alexeeff reviewed the plaintiff at the request of the defendants on two occasions in February 2002 and January 2003. While he agrees with Dr Sneddon's initial diagnosis of prepatellar bursitis and his assessment of a permanent impairment in both knees of five per cent he does not agree that this impairment and the plaintiff's current symptoms are a result of the injuries sustained in the accident. Mr Alexeeff considered that it was more likely that the bursitis caused by the trauma of the accident had resolved after a few months as Dr Sneddon advised that the plaintiff told him his symptoms had improved to the extent where he was virtually pain free in August 2000. Mr Alexeeff was of the opinion that the recurrence of the symptoms reported to Dr Sneddon in October 2000 were more likely to be of a chronic nature as a result of the time the plaintiff spends working in a kneeling position. Although there appeared to be some misunderstanding during the course of cross-examination that Mr Alexeeff was suggesting some kind of post accident trauma it was apparent from his evidence that he was referring to a long standing condition resulting from many years working in a kneeling position and occurring independently of the trauma of the accident. Mr Alexeeff stated that in his opinion what is likely to have occurred is that as a result of spending so much time on his knees the plaintiff has developed chronic bursitis over a period of years and that the fall produced an acute exacerbation of that condition.
(Page 7)
13 He was of the opinion that that was more consistent with the appearance of the MRI scans taken in December 2000 He stated that it was unusual to see those pathological signs after only one incident such as a fall. Mr Alexeeff considered that it was unlikely that the trauma to the knee occasioned by the accident was responsible for the plaintiff's ongoing symptoms. Although Dr Alexeeff commented that the plaintiff appeared to be doing his best to present a frank history of his symptoms he considered that it was more likely that he had suffered from chronic bursitis for some time prior to the accident. Although that would have produced pain from time to time it was not necessarily disabling pain. He did not agree with Dr Sneddon that it was likely that his present symptoms were coming from the early arthritic changes in the joints as he did not consider that the MRI investigations suggested a significant degree of degeneration.
14 While Dr Alexeeff's explanation has a logical attraction it does rely to some extent on his apparent understanding based on Dr Sneddon's report of 29 August 2000 that the plaintiff had made an almost complete recovery by August after having returned to work on his knees. Although the matter is not beyond doubt I am satisfied on the basis of the plaintiff's evidence that he has not been "symptom free" under his normal working conditions since the accident. His account to Dr Sneddon in August 2000 was that his symptoms had improved but that although he had returned to work he had not placed his knees under the stress of his pre-accident working pace. Dr Sneddon's comment that the plaintiff "has been able to carry on working as a self-employed shop fitter, a job which involves him spending considerable hours each day down on his knees without experiencing any problems" is in the light of the plaintiff's evidence to be understood as not necessarily meaning that he had returned to work at the same pace and in the same conditions that he was used to before the accident. In any event even if that is not the case it was only for a relatively short period of time before he was complaining of symptoms again and arranged to see Dr Sneddon in October 2000. The plaintiff impressed me as a frank and honest witness and I accept his evidence that at the time he told Dr Sneddon that he had returned to work and was more or less symptom free he had been working but "hadn't pushed them at all or done like, normal work" to use his words. The plaintiff said that when he did return to work at his normal pace his knees started playing up so he went back to see Dr Sneddon. 15 I also accept the plaintiff's evidence that he had never had any problems with his knees until the accident despite many years working from a kneeling position and the fact that he was continuing to work at a
(Page 8)
hard pace well into his 60's. The plaintiff impressed me as a hardworking man with a strong commitment to his work and his business. Like Dr Sneddon I accept his evidence that not only had he not been previously disabled as a result of any problem with his knees but he had not experienced any symptoms. I am satisfied that the plaintiff's symptoms are a consequence of the injury that he sustained on 20 May 2000. Although Dr Sneddon considers that it is likely that his present symptoms may also be caused by changes in the patellar femoral joint as well as the bursitis I accept his opinion that those changes may well have been precipitated by or exacerbated by the fall. While it may be that the plaintiff could have developed prepatellar bursitis and degenerative changes in the patellar femoral joint independently of the accident that is something that can be taken into account by way of an allowance for contingencies. It is however the case that that allowance should be relatively modest as at the time of the accident the plaintiff was aged 64 and despite the fact that he had placed considerable stress on his knees as a result of his work he was fit and active and had no difficulty or symptoms from his knees throughout his working life. 16 Although there was a suggestion by Dr Alexeeff that surgical excision of the plaintiff's prepatellar bursa may significantly reduce his disability this was not pursued during the course of the trial and was not suggested by his treating surgeon Dr Sneddon. I am satisfied that the plaintiff's disability is permanent and he has sustained a loss of earning capacity. I also accept that although that was assessed by both Dr Sneddon and Dr Alexeeff as being five per cent disability of the whole of his left and right leg its effect on his working capacity is significant due to the nature of his work.
Economic loss 17 The plaintiff claims that his disability has significantly affected the profitability of the shop fitting business. He stated that as a result of his disability the business has been forced to submit higher quotes for work and this has reduced the volume of the business. The defendant claims that the financial statements do not reflect any significant reduction in business and to the extent that they do this is due to other factors independent of the plaintiff's disability. The financial statements for the years ending 30 June 1998, 1999, 2000 and 2001 were prepared on the basis of sales figures of $600,398 (1988), $488,572 (1999), $433,719 (2000) and $369,866 (2001). The sales figures for the year 2000 were originally in the amount of $381,755 and for the year 2001 in the sum of
(Page 9)
$431,830. Contrary to the plaintiff's claim this indicated that there was an increase in sales in the year following the accident rather than a decrease. During the preparation of accounting reports to assess the plaintiff's financial loss the plaintiff's usual accountant, Mr Snelgar was unavailable due to illness following a stroke. In his absence Mr Kevin Somes was requested to undertake this task. During the course of his analysis he noted that the figures for the year ended 2001 were higher than for the previous year. As that was inconsistent with the information that had been provided to him this was brought to Mr Snelgar's attention. He contacted the plaintiff to get further information. As a result of that Mr Snelgar recalculated the gross sales figures to reverse the position so that the sales figures for 2000 were calculated at $433,719 and for the year 2001 at $369,866. As a result of that recalculation the financial statements of the business were amended and amended tax returns for the years 2000 and 2001 have been submitted. Mr Snelgar confirmed that this will probably incur a penalty payment as a result of the alteration in the plaintiff's tax liability. 18 Mr Snelgar stated that the accounts for the business had always been prepared on an accrual basis rather than on a cash receipts basis. This means that the financial statements for any given year reflect income earned or derived in that year rather than income received. Mr Snelgar stated that the error had occurred as invoices for work done in April and May 2000 were rendered in June but payments not received until July. He stated that they were mistakenly included in the 2001 calculations rather than for the year 2000. He explained that he was not concerned that a similar error may have been made in previous years as prior to that he had calculated the sales manually from the invoices. Mr Snelgar only became aware of the error when it was brought to the attention of the plaintiff and himself by Mr Somes in March 2003. He explained that although he did the accounts for the business in that period and was aware that the profits for the business were decreasing the anomaly in the figures did not alert him to the error due to the volume of work and financial statements he prepares for a large number of businesses. Although the plaintiff was not able to say whether the accounts were prepared on a cash or accrual basis he did say that the relevant invoices representing a sum of approximately $68,000 were for work done in April and May 2000. He explained that as a result of his accident and injury he neglected some of the administration of the business and the invoices were sent out later than usual. 19 Mr Kevin Somes is a chartered accountant with particular experience in business management as well as auditing and taxation. He was asked by the plaintiff's solicitors to assess financial loss suffered by the plaintiff
(Page 10)
as a result of his injuries. Mr Somes made an analysis of the income tax returns and financial statements for the period from 1998 to 2002. It was Mr Somes opinion that the accounts for the business were prepared on an accruals basis rather than on a cash receipts basis. 20 Mr Robert Burns is a chartered accountant with experience in analysing the financial status of business entities for litigation purposes who prepared reports at the request of the defendant. On his analysis the accounts for the business were prepared on a receipts rather than an accruals basis. Mr Burns stated that the calculation of the sales figures corresponded with the receipts revealed in the bank statements. This indicated that the calculations were made from receipts rather than from sales invoices. He pointed out that with the exception of the year 2000 the absence of trade debtors indicated that the accounts were prepared on a receipts basis. He pointed out that if that was not the case the absence of a substantial figure for trade debtors meant that the business was in the unusual position of having all invoices paid by 30 June each year. I found Mr Burns to be an impressive witness. His analysis was careful and detailed and there is strong support in the financial records for his opinion that the accounts were prepared on a receipts basis. The correspondence between the sales figures and the bank receipts and the low figures for trade debtors are clearly indicative of a receipts based accounting system. However, the evidence of Mr Snelgar was that the accounts were always prepared on an accruals basis. Although the plaintiff was not aware of the significance of this he was able to identify the relevant invoices that Mr Snelgar said should have been included in the year 2000 figures and confirmed that that work was completed in April and May of that year. Mr Snelgar appeared to be an honest witness. It would be most unlikely that he would be prepared to somehow concoct a plan with the plaintiff to alter the financial figures in order to boost the plaintiff's claim. Although it is somewhat surprising that the figures did not draw his attention to the possibility of an error in 2001 I accept that it is likely that it was simply overlooked by Mr Snelgar. Although he may have been aware of the fact that the profitability of the business was decreasing there had been significant fluctuations in previous years. It may be that if Mr Snelgar had not suffered a stroke in 2002 the matter may have become apparent at an earlier stage. It is also the case that there was a considerable amount of confusion in the evidence relating to the financial status of the business. It is a small business with relatively modest profits chiefly derived from the work of the plaintiff and his son. The plaintiff has only a rudimentary understanding of the financial processes in relation to the business. I am satisfied on the balance of probabilities that the accounts were prepared on
(Page 11)
an accruals basis rather than a cash receipts basis and I am therefore satisfied that the financial statements indicate that there has been a decline in the profitability of the business since the plaintiff's accident in May 2000. 21 The extent to which the plaintiff's reduced work capacity as a result of his injuries is responsible for this decline is difficult to establish. I accept that the plaintiff himself is convinced that his reduced work capacity is to blame. He concedes in cross-examination that Australia Post has been the main customer for the business in recent years and that work from that customer had reduced before the accident. However, he stated that if it had not been for his reduced work capacity the business would have been successful in obtaining work from other sources. It was the plaintiff's evidence that the company was not able to quote in a competitive way. Quotations that had been tendered for business in the amount of $169,000 were referred to by the plaintiff as examples of quotations that had not been accepted and reflective of the impact that his injuries have had on the profitability of the business. 22 Both Mr Somes and Mr Burns were asked to provide expert opinion to the Court on whether any reduced profitability has been caused by the plaintiff's reduced working capacity. Mr Somes considered that the reduced profit which he found to be demonstrated by the financial statements was due to the plaintiff's inability to work at his pre-accident rate. He explained that as the plaintiff was a multi-skilled tradesman the cost of replacing him made his business uncompetitive. Mr Burns was of the opinion that the profits of the business had been in a steady decline since approximately 1998. As his analysis was that the accounts were prepared on a cash receipts basis he did not consider that there was a significant decline after the year 2000. In any event on his analysis of the financial data the decline in business was due at least in part to the reduction in work from Australia Post and from other major customers. In particular he noted that there had been a significant reduction in receipts from Australia Post in 2002 and 2003 with no receipts from two other major customers, Devlin Constructions and Consultant Constructions in 2003. In his report dated 17 March 2003 Mr Burns stated that although the reduction could have been due to the plaintiff's inability to perform the work it could also have been due to a downturn in the business because of changes in allocation of contracts for reasons unrelated to the plaintiff's reduced working capacity. 23 I accept that both Mr Somes and Mr Burns have considerable experience in interpreting financial data as reflecting changes in business
(Page 12)
activity. The difficulty in this case is that the financial data is somewhat limited. The analysis of financial information has been focused over only a few years before and after the accident. In addition the analysis has been somewhat confused by the errors made in the preparation of the 2000 and 2001 statements which were only uncovered a short time prior to the trial. The opinions of both Mr Somes and Mr Burns are necessarily somewhat conjectural. In a small business the loss of earning capacity of one of the two main workers is likely to lead to a reduction in profitability of the business. However, it is also the case that the sales figures for the business varied considerably prior to the accident and the reduction in the work available from Australia Post has had a significant impact. Although the defendant did not call any evidence from Australia Post that much is evident from the data extrapolated in Mr Burns' reports. It was also conceded by the plaintiff in cross-examination. While the defendant may carry some evidential burden in relation to this issue it is nonetheless the case that the plaintiff still must establish that his reduced earning capacity is productive of loss. I do not accept the plaintiff's submissions that it is sufficient to simply rely on the inference that can be drawn from the fact that there has been a reduction in profit. However, it is also clear that the impact of the plaintiff's reduced working capacity cannot be ignored. Although the work from Australia Post may have reduced significantly I accept the plaintiff's evidence that someone of his experience and expertise would have been able to obtain work from alternative sources if the quotes were competitive. I also accept that the nature of the plaintiff's multi-skilled trade makes it commercially difficult to substitute alternative labour. Although the downturn in profitability may also be due to other unrelated factors such as a simple downturn in business or change in allocation of contract work I am also satisfied that the plaintiff's reduced working capacity would have exacerbated the impact that those factors would have had on the profitability of the business. 24 While I am not satisfied that the reduction in earning capacity is the sole contributor to the decline in profitability of the business I am satisfied that it is a substantial factor. Quantifying that contribution presents a real difficulty in this case. In opening counsel for the plaintiff stated that it may not be possible to arrive at an arithmetical calculation of economic loss. In closing submissions a number of calculations were made and were said to establish a parameter within which an appropriate assessment could be made. These calculations have been based on an estimate of the plaintiff's average earnings taking into account his wages and the company profit and comparing it to his actual earnings since the accident.
(Page 13)
The range of calculations offered by the plaintiff suggests a degree of mathematical precision in the assessment of loss of earning capacity that is misleading in the circumstances of this case. I do not consider that it is appropriate to use these calculations other than as a very rough guide and to inform an appropriate assessment. The pre-accident average has been worked out over only a period of three years. During that period there were significant fluctuations in the sales figures and profits earned. In the same way the comparison with the post-accident figures necessarily only covers a few years. It is difficult to reflect the impact of fluctuations that have been caused for reasons other than the plaintiff's working capacity in any assessment. However, I consider it appropriate to use the calculations contained in the plaintiff's closing submissions as a rough guide in determining an appropriate assessment on a global basis. 25 I accept that it is appropriate to calculate the plaintiff's earnings on the basis of the company profit and the wages paid to the plaintiff and his wife in the relevant years. Although the plaintiff will not receive the whole of the profit it nonetheless reflects a loss of earning capacity in accordance with general principle (see Husher v Husher (1999) 197 CLR 138). I also note that this was the approach adopted by Mr Burns in calculations contained in Schedule B to his report of 4 March 2003. After adjusting the sales figures to reflect the error detected in the financial statements for the year 2001 Mr Somes calculated that the plaintiff's average earnings for the three years prior to the accident was the sum of $86,394. I consider that that average is somewhat inflated by the company profit for the year 1998. If the figures for the year 1997 are included in the calculations I am satisfied that that would reduce that average. Unfortunately I have no information other than the sales figures of $513,000 for the year 1997. Accepting for the purposes of this calculation that that would have resulted in a reduced company profit for that year I consider that it is appropriate to use the sum of $80,000 as the average pre-accident earnings of the plaintiff. This produces a figure of approximately $166,500 as representing the plaintiff's potential earnings from 1 July to 1 May 2003. I accept the plaintiff's calculations that the amount actually received by the plaintiff in that period was the sum of $59,506. This rough calculation produces a past loss of earnings in the sum of $166,500. [$226,000 - $59,500] 26 In the absence of any information that enables me to make a more precise determination I consider that it is appropriate to allocate 50 per cent of this loss of earnings as being due to the plaintiff's reduced earning capacity as a result of his injuries. The evidence establishes that the profits of the business were in decline prior to the accident. While I am
(Page 14)
satisfied that the plaintiff's reduced earning capacity has had a significant impact I am not satisfied that it has been established that it could be responsible for more than 50 per cent of the reduced profits of the company. A reduction of 50 per cent produces an average past loss of earnings for the purposes of this assessment in the sum of $83,250. If an allowance is made for interest at three per cent this produces a figure rounded off of $90,000. 27 In order to reach an appropriate global award for loss of earning capacity an allowance must be made for future loss of earnings. I accept that the plaintiff would have continued to work until approximately the age of 70 (May 2006) and may well do so despite his disability. As this is only for a short period of three years and the calculations are only used as a guide to inform a global award I consider it appropriate to approach an assessment of loss of future earnings on the same basis as I have dealt with the past loss of earnings above. If the profits of the business remain on the same level as they have for the last three years this would result in a future loss of earnings in the vicinity of $90,000. Although this would not include an interest component as in the past loss of earnings the calculation should be made on a basis of a total of three years rather than two years ten months. For the purposes of making a global award I consider that an assessment of future loss should be reduced to the sum of $70,000 to take into account the contingency that the plaintiff may not be able to continue to work for reasons other than his accident related injuries and the distinct possibility that the fortunes of the company may improve in the next three years. Informed by these calculations I find that an appropriate award for a total loss of earning capacity is the sum of $160,000. This will be reduced to reflect the 25 per cent contributory negligence found at trial to result in an award of $120,000. 28 The plaintiff will be awarded the sum of $20,000 by way of general damages for pain and suffering and loss of amenities. This will be reduced by 25 per cent to an award of $15,000. Although I accept the plaintiff's submissions that an amount of general damages should not be reduced to reflect the plaintiff's reduced life expectancy because of his age it is also the case that it is likely that the plaintiff's symptoms will reduce significantly once he ceases work at approximately the age of 70 and is no longer placing his knees under stress. Although the plaintiff has complained that he is no longer able to undertake activities such as gardening, I am satisfied that the most significant impact of the plaintiff's injuries has been on his work capacity.
(Page 15)
29 The plaintiff will be awarded the sum of $1,800 special damages. Special damages of $2,398 were agreed and this sum has been reduced by 25 per cent and rounded off to a figure of $1,800.
|