East v King

[1999] NSWSC 314

CITATION:	East v King [1999] NSWSC 314 revised - 31/08/99
CURRENT JURISDICTION:	Supreme Court
FILE NUMBER(S):	NR 600066/94
HEARING DATE(S):	25/03/99-29/03/99
JUDGMENT DATE:	1 April 1999
PARTIES :	Rouella Argentin East v Hubert Earl King
JUDGMENT OF:	at 1

COUNSEL :	D. Wheelahan QC with G. Radburn (Plaintiff) P. Crittle (Defendant)
SOLICITORS:	Somerville Laundry Lomax (Lismore) (Plaintiff) Hunt & Hunt (Defendant)
CATCHWORDS:	Motor Accidents; Assessment of Damages; Personal Injury; Economic and Other Losses
DECISION:	Damages Assessed

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

LISMORE: Thursday 1 April 1999

NR 600066/94 - ROUELLA ARGENTIN EAST v HUBERT EARL KING

JUDGMENT

1 HIS HONOUR: In this action the plaintiff seeks damages in respect of injuries which she sustained in an accident on 4 September 1993. She had been born on 30 June 1956 and was therefore 37 years of age when injured and is now nearly 43. She was born in Cairo, I gather of Greek parentage. She was educated variously in Cyprus, Kuwait and ultimately at the West Ryde High School. It is not necessary for me to recount these matters in detail. She was injured when riding a motorcycle and it appears that an oncoming vehicle made a right hand turn across her path. Liability is conceded and the case is before the Court solely for the assessment of damages.
2 She was admitted first to Lismore Base Hospital; later transferred to Princess Alexandra Hospital in Brisbane; later transferred to the Royal Prince Alfred Hospital in Sydney, returned to Lismore Base Hospital, then to St Vincent's Hospital in Lismore for rehabilitation. In all she was hospitalised for something in the order of six months.
3 Particularly during her stay at the Royal Prince Alfred Hospital she underwent multiple major surgical and neurological procedures. It was mentioned in the course of evidence that the reason for transfer from Brisbane to Sydney was that the surgeon in Sydney was the only person in Australia qualified to perform the highly delicate and major surgery which the plaintiff needed.
4 There is a summary of the plaintiff's injuries in a transfer letter which was received by the Royal Prince Alfred Hospital. That lists the following injuries:

1. Pulmonary contusion with fractured ribs on the right and haemothorax.

2. Fracture of the base of the skull with intracranial air and subarachnoid haemorrhage.

3. Fractured displaced right patella.

4. Fracture of left distal humeral shaft which was compound.

5. A compound comminuted fracture of the proximal ulna with dislocation of the radial humeral joint on the left.

6. Fractured right clavicle.
5 The summary thus scheduled scarcely tells the story of the multiple injuries to the plaintiff. Her head injuries have had catastrophic effect upon her eyes. I observe that although the plaintiff attended for multiple medical examinations arranged on behalf of the defendant, it has been chosen to tender only three reports, respectively from an ear nose and throat specialist, an oral surgeon and a physician. The inference I draw in this case is that the evidence contained in the plaintiff's medicals can be readily accepted in the light of that withholding of medical reports by the defendant.
6 It is perhaps worth noting in passing that the physician's report which the defendant did tender, that is to say the report of Dr Allsop, dated 12 March 1998 contains this opinion:

"She has been left with certain residua which should probably now be considered as permanent. There could be some cognitive impairment though in my opinion this is not of major proportions. There is an organic impairment of balance. Whether this is at the brain stem level or peripherally in the labyrinth is difficult to say. The speech difficulty suggests that it might be central. She has residual ocular palsies namely of 6th nerve function on either side and of up gaze which are the residua of carotico-cavernous fistulas. She requires the presence of a ventriculoperitonial shunt to stop the recurrence of hydrocephalus which developed as a result of subarachnoid haemorrhage resulting from the accident. She has mild bilateral facial palsy".

7 The doctor went on to say that he would not comment with any further detail on her orthopaedic injuries or her soft tissue injuries.
8 As I have said, I accept the medical opinion tendered on behalf of the plaintiff. It is unnecessary in my view to take up time reciting what can be read there. It is very substantial in volume. I would say, however, in passing that although I do not doubt the right of the medical attendants to the plaintiff to be proud of their heroic efforts, when one reads observations such as that of Dr McGee-Collett prognosticating that the plaintiff's future is “rather favourable”, that observation has to be read in the context of the plaintiff being (as I find her to have been) uninjured prior to the accident. Indeed when I read that the doctor wrote "rather favourable", I was impelled to ask myself, compared to what?
9 It is important in this case to record that the plaintiff needs to be seen in presentation, and to watch her struggle with ordinary activities like moving from the Court floor into the witness box and trying to speak. Her speech and her mobility are both impaired, and I observed many times that she moved her hands with a type of spastic waving.
10 There are other matters which affect her. Her eyes as a result of these critical injuries have lost their tear duct capacity. That means that the eyes do not lubricate themselves. She has to insert artificial tears. At night she has to place a substance upon her eyes to get through the sleeping hours during which, unlike those without such damage, eyes are constantly lubricated through the tear ducts.
11 A further complication is that the damage to her ducts seems to have sent material to join it to her saliva, and she dribbles.
12 Despite all of this the plaintiff presents with a cheerful demeanour. Dr Thompson, an orthopaedic surgeon, who gave some oral evidence commented that he thought that she perhaps lacked real insight into the extent of her disabilities. I agree entirely, and would make that finding for myself.
13 I should record that I do not believe the defendant can take any comfort from the enthusiastic answers in cross-examination given by the plaintiff when she smiled and observed that she thought she could engage in various activities. Indeed, the impression I formed was that if she had been asked whether she thought she could succeed in astronaut training she would have smiled and said she would give it a try.
14 On the question of non-economic loss, it is agreed that the specified figure in the statute is $259,000. Senior counsel for the plaintiff submitted that this case viewed in entirety should be assessed as a most extreme case therefore, requiring a proportion of 100 percent. Counsel for the defendant said that he declined to put a figure upon it but somewhat shyly mentioned that he thought it would be difficult to reach 75 percent.
15 I have yet not in these observations referred to personal matters of a non-economic kind which have also affected the plaintiff. She gave evidence, which I accept, that when she returned from hospital her own children were frightened of her, so changed and repulsive to them was her appearance. With time that has changed. I have not mentioned matters such as the strabismus which affects the eye as well as the diplopia. This makes it necessary for her to wear spectacles with one eye covered.
16 There has been some evidence in relation to the breakup of her marriage, and suffice it to say that I am satisfied on the probabilities that there is a causative connection between that breakup and the aftermath of this accident.
17 I am conscious that my task is to look at categories, and that “a most extreme case” is not a description of “the” most extreme case. Non economic losses are always matters of impression. I believe that the plaintiff does approach a most extreme case, but balancing the justice between the parties I have come to the conclusion that for the purposes of the Act the totality of her disability should be proportioned at 90 percent of a most extreme case. Accordingly there will be included an item for non-economic loss of $233,100.
18 I should move to record some details of the plaintiff's history. I mentioned that she completed her education after coming to Australia and attending a high school at Ryde. She then went to a receptionist training centre and, thereafter seems to have been consistently employed in jobs such as being a telex clerk with companies in transport or like business.
19 She was obviously an energetic young woman, and she frequently engaged in second jobs, working at the Paddington Tavern and the Royal Randwick Hotel from time to time.
20 She moved to Lismore in 1983. It was said that she wished to avoid the stresses of city life. She here met Mr Michael East who became her husband.
21 After moving to this area her work was somewhat spasmodic. She had worked for a time (during season I gather) in a macadamia factory, and she did some librarianship training at the local TAFE.
22 She had two children born respectively in October 1985 and April 1988. Accordingly during a span of time from her arrival in Lismore until 1991 she worked comparatively briefly. However, once the two children had been born, and the younger was in his fourth year, she and her husband bought a small business called The Games Room. Much of the debate in this litigation has centred around this business.
23 It appears to have been a shop which had some computer games and sold other games, board games and the like; and as well the plaintiff herself made and hired children's party costumes.
24 The plaintiff's husband had been an employee of Telstra and had been made redundant. The business was purchased for about $44,000; the source of that money being primarily, as I understand it, the redundancy payment which Mr East had received. The price paid, however, represented really the stock and fittings at the shop. The goodwill was a nominal $3. The shop apparently was the subject of only a monthly tenancy and to that extent the business was always vulnerable to a notice to quit from the landlord.
25 I am satisfied that it was the plaintiff's intention to continue to conduct this shop. I do not believe that it was altogether intended as a major entrepreneurial effort and the goals were modest. To an extent the plaintiff and her husband had adopted what is generally referred to as an alternative lifestyle. This is not a matter of criticism, it is a matter of their choice, but it is necessary to look at it when damages are sought which can only be returned and reflected in economic terms.
26 They had bought some acreage about twenty minutes drive from Lismore. The plaintiff's husband became an owner builder. He was unemployed after retrenchment from Telstra and up to the time of the accident had spent about five years building their home. Some evidence suggests that it is still not complete.
27 The plaintiff's husband, so far as the evidence demonstrates, does not seem to have worked since leaving Telstra with the exception of the contribution that he made towards the operation of The Games Room.
28 The plaintiff was cross-examined as I have earlier mentioned, and she indicated in response that she thought she could do many things. I accept her evidence as honest but I think she lacks the insight as to what are the real restrictions upon her abilities. From a personal point of view that lack is probably benevolent, but in a real and practical sense I am satisfied that she is totally at the present and will remain in the future unemployable in any commercial sense.
29 I made earlier reference also to the breakdown of marriage. The history is that the plaintiff's husband left for about four months in August 1997 but returned about four months later. The plaintiff said he was missing the children. He remained then until early this year.
30 It should be observed that both the plaintiff and her husband have been attending for some counselling with a psychologist. I observed from her reports that the plaintiff's husband is trying to be loyal, although somewhat surprisingly, if I may comment, the psychologist seems to have embarked upon a process of suggesting to the parties that they should “realistically”, in her terms, see the marriage is ended and get on with their separate lives. It is not for me to further comment upon that matter, but it is relevant to observe that the plaintiff's husband seeks to remain a friend to her; he is presently residing in Lismore and goes out to the property from time to time and does odd jobs. Given the apparent urging of the psychologist, this is unlikely to be permanent. Those circumstances will need to be looked at when I come next to the individual items of damage.
31 I have commenced with an assessment of non-economic loss. It is agreed that out of pocket expenses to date are $71,978.
32 Next it is convenient to deal with an assortment of claims which have been advanced in submission on behalf of the plaintiff assisted by documented calculations for which I express my gratitude. Indeed the careful and comprehensive preparation of those submissions, which can remain with the papers, has made it possible for me to proceed expeditiously to judgment.
33 I deal with claims for future pharmaceutical expenses. These have been calculated in accordance with the submission at a weekly rate upon the authorised discount multiplier, and a capital sum of $4,309 is sought. No resistance was indicated by the defendant and I include that amount in the damages.
34 The next submission relates to a schedule of claimed future medical expenses. The first item is for some future surgery to relieve the appearance of the plaintiff's eye squint. The calculated cost is some $2,009. I made reference to the shunt which is inserted in the plaintiff's head. It requires replacement in accordance with the evidence, and that amount as claimed in the schedule should be included.
35 There is a claim for an annual neurological review which I regard as reasonable and supported by the evidence. There are claims then, fourthly and fifthly, for dental treatment and psychological counselling.
36 The plaintiff was not specifically asked whether she intended to have all of these treatments. Obviously the shunt replacement will not really be a matter of her choice, it is necessary and needs to be done
37 The total claim for all the psychological counselling, the dental treatment and the other matters is $21,454. Counsel for the defendant pointed out that there was the gap in the evidence as to whether all of this treatment would be undertaken, or undertaken to the extent calculated. Taking into account those matters I have come to the conclusion that using the figures in the submission as a guide, a fair sum to include in the damages would be $18,000, and I propose so to do.
38 The next schedule relates to the expenses of future travelling for medical treatment. The items include the postulated squint surgery, the replacement of the shunt, the neurological review, dental treatment, psychological counselling, that is to say the five items in the previous schedule, together with community reintegration counselling. This is an undertaking which has been suggested as being of likely benefit to the plaintiff, but again there was no evidence from her as to whether she wished or intended to undertake it.
39 It has to be observed that some of the items would not require separate trips and, no doubt, the plaintiff (who gave evidence that she comes into shop in Lismore a couple of times a week) would make her trips on occasions of dual or treble purpose. It is always possible by the use of arithmetic to extrapolate figures, but my task is one of judgment not essentially of arithmetic. The amount claimed as calculated by the schedule is $13,080. A fair amount of damages for travelling which the plaintiff is likely to undertake in my view would be $10,000, and I include that round sum.
40 The next item is the community reintegration counselling which I mentioned a few moments ago. This is estimated to cost $4,360. As I have said, there is no evidence from the plaintiff about her wish or intentions in connection with this. In order to allow for the possibility that she may wish to undergo it, however, I would include $3,000 in the damages.
41 The next items to which I intend to make reference are the various claims for domestic assistance and provision of handymen for the plaintiff and the like.
42 I am satisfied that there are tort induced needs which sound in damages to which the plaintiff is entitled. This is a topic which has been the subject of much debate between the parties. I should observe that in my finding the plaintiff herself would be the worst judge of exactly what she needs. Her cheerful demeanour is such that she seems willing to agree to propositions that are put to her as to what she can do which in my view are far beyond her realistic capacities. That represents one extreme.
43 There is a long report of an occupational therapist, Miss Julie Wilson. Again, on the other extreme, that report seems to contain most of the things that Miss Wilson can think of that might be done for the plaintiff. The tort induced needs I think lie somewhere in between the extremes.
44 In the course of cross-examination of the plaintiff's husband, counsel for the defendant extracted estimates from him as to the hours that he devoted to attending to the plaintiff's needs when he was there. A submission was summarised by saying that he does hardly anything beyond what he had done before the accident. The test is of course whether or not there are tort induced needs which sound in damages. I have observed that the plaintiff's husband is unlikely to be about in the future.
45 The plaintiff is to a large extent independent in her personal needs, but she has considerable restrictions as to what she can do. In taking into account the material emanating from both herself, her husband and Miss Wilson, and the observations of her friends, I have come to the conclusion that for the purpose of calculating damages for the period between her discharge from hospital and the present, an estimate of three hours per day is appropriate.
46 I am conscious that by permutations and combinations of the evidence, one can find the plaintiff's needs as ranging anywhere between about nearly forty hours a week down to about half an hour a week. As I have indicated, I have reached the judgment that I have indicated as a result of trying to balance my findings as to what the plaintiff's real needs are from all the sources. I think that the plaintiff's needs have been larger during the earlier period post-accident, and as she has gained some independence, that has decreased.
47 I have chosen the specified rate as something which would represent a reasonable guide for the purpose of assessing damages during the whole period.
48 Three hours per day would mean the provision of services for twenty-one hours per week, but pursuant to the Motor Accidents Act I am obliged to deduct six hours from that when I come to the question of calculation. Therefore, the amount for calculation for the past will refer to fifteen hours per week.
49 The plaintiff has advanced a claim for the past in two stages as it were. The first stage results in a computed claim for $63,118, and the methodology whereby this figure has been reached can be seen in a schedule to Exhibit D, a report from the accountant Mr Keep. I do not need to recite the rates of pay per week and per hour that are there set out. I can, however, use the rates therein to reduce the twenty-four hours per week which he hypothesized to fifteen hours per week in order to reach a figure of $39,448 which I propose to include in the damages.
50 The second stage of the plaintiff's claim is based upon the services provided by the plaintiff's husband. At one stage of the evidence he estimated that he spent five hours a day looking after his wife. And I have already made mention of the concession to the defendant's counsel which led to the submission that he made. Applying the fifteen hour rate, which I repeat, allows the six hour deduction required by the statute, I would include in the damages for the period during which the husband was providing the services, $13,903. That figure is calculated by using the same methodology as the schedule advanced by the plaintiff which lead to a claim for $22,245. I do not need to set out the method of calculation.
51 So far as the future is concerned, the claim is made for an actual expenditure of three hours per week which capitalizes in accordance with the authorised rate at $56,100. I regard that claim as reasonable to the point of being extremely modest, and I propose to include the entirety of that sum in the damages.
52 I can observe that the calculations which I have done would mean that there is an arbitrary cutoff point between present and future when the services postulated move from fifteen hours per week to the three hours. The change of course will not in reality be as stark as that, but as I have indicated I selected the fifteen hours per week to represent the entirety of the past period. The plaintiff's early needs after discharge from hospital I find were probably much greater than that but they have tailed off, as it were, over the ensuing period.
53 I am conscious that there is a six month period at the beginning of the plaintiff's claim which the statute requires me to ignore. It so happens that the plaintiff was in hospital for approximately that period, but that does not prevent time from running. Therefore, the period required by the statute has been appropriately taken into account.
54 Moving on, the plaintiff makes a claim under a schedule entitled Future Holiday Expenses. What the plaintiff would be entitled to as a result of tort would be any additional cost referable to the consequences of tort which she needed to meet on occasion when she went on holidays. The method adopted by the plaintiff is one that I would not myself adopt. The claim, however, capitalizes at $11,826. I am abundantly satisfied that from time to time during her life if uninjured the plaintiff would have had holidays, and I am similarly satisfied that there will be in the future additional cost for her.
55 She has, surprisingly if I may comment, been assessed as permitted to drive a motor car, but with restrictions. One of those restrictions is that she may not motor more than fifty kilometres from her home. In the circumstances I have come to the conclusion that a lump sum of $10,000 should appropriately be included in the damages to compensate the plaintiff for the additional cost that I have indicated.
56 The next item of damages is related to the cost of future gardening and handyman about the house. I do not have any detail in the evidence as to the property arrangements between the plaintiff and her husband. As I have mentioned, he has moved into Lismore to live and the plaintiff remains on the property and there is no evidence before me other than that she will continue to remain there.
57 She will be on her own. It was not suggested that I should consider hypothetical contribution by the children as they grow. It is obvious that she does not have the capacity to mow the grass or do any repairs or maintenance. Indeed, her orthopaedic injuries are such that she cannot really in a practical fashion work above shoulder level. To this might be added the imbalance that she has and the feelings of syncope which follow her raising her head. This is apparently a consequence of the shift in equilibrium of the shunt which is implanted within her head.
58 The claim on behalf of the plaintiff is calculated in a fashion set out in the appropriate schedule and amounts to $34,980. There are attached evidential quotes for the work to be done. I am satisfied that the claim for that (which includes specific repair to the water pump on the property from time to time) should be allowed, subject to this comment that there is a capital sum of $4,725 for clearing and hiring equipment to do it. The plaintiff's husband has in fact been on the property himself until January this year and I see no reason why it is the tortfeasor's responsibility to do initial clearing now of this property in which the plaintiff's husband has some interest. He was the builder of the house and she presumably has an interest in the property. The plaintiff, however, in the future will be without him and she needs somebody to do the sorts of tasks that I have indicated wherever she lives. I therefore deduct the $4,275 but allow the balance by way of damages and there will be included $30,705.
59 As I earlier mentioned there have been major counter-submissions between the parties on the issue of economic loss. Before turning to the ingredients of these damages that I propose to include I should deal with two discrete matters.
60 The first matter was a reference by senior counsel for the plaintiff to the loss of the financial support of the husband. I was referred to no authority which suggested that a tort induced loss of the benefits of marriage apart from financial support could be categorised under the Motor Accident Act other than as non economic loss. In this particular case I find that the failure of the marriage although tort introduced was not of economic consequence. There was no evidence that the plaintiff's husband was likely to be a significant source of financial support in the future. He has spent some years unemployed and working as an owner/builder.
61 The plaintiff's submission has been that I should read the Games Room business as a loss by the plaintiff as to 80 percent even though on paper the parties were equal partners. I mention at the outset that I regard that as a very reasonable way of approaching the matter and entirely justified by the evidence of their respective contributions to its operation.
62 I should, however, return to this claim for asserted loss of economic support derived from marriage. I was referred to a judgment of Barr AJ (as he then was) in a case of Pelosi v Commercial Union Assurance 28 February 1995. In that case, without a great deal of elaboration, his Honour included in the damages awarded to the plaintiff in that case $100,000 for “the loss of financial benefit and support of a husband”. Counsel then observed that that award had been sustained in the Court of Appeal which delivered the judgment in an appeal in that case on 2 February 1996.
63 Analysis of the leading judgment of Sheller JA, however, shows that the figure was sustained principally because when Barr J dealt with the ingredients of his award he had deducted, as it were, from the plaintiff’s economic losses, a period of five years for what might be described as 'childbirth and infant raising' and then reduced her rate for a further two years and eight months. The law has grappled with the problems of justice to women in particular who leave the work force for the purpose of raising children and the High Court in Sharman v Evans 1977 138 CLR 563 had said that as a practical matter justice could be done by simply ignoring the period during which a female plaintiff was absent from the work force.
64 Thus, although the High Court had not said that this must be done, in the approach taken by Barr AJ he had departed from the expedient route that the High Court had indicated could be adopted in the usual case. Sheller JA observed that the course of disregarding the prospect of the marriage as a relevant factor in the assessment of future economic loss had not been adopted and he then demonstrated that if the conventional approach had been taken then the plaintiff would have had, on the figures in that case before him, almost the same result. The critical passage in the judgment on appeal reads:
“Using the figures his Honour did to assess the probable earnings but for her injuries, the respondent would have earned something in the order of $100,000 after tax during the five years he treated her as not working and the two years and eight months he treated her as working part time. Had the expedient course of disregarding the prospect of marriage as a relevant factor in the assessment of the respondent’s future economic loss been adopted the present value of the net weekly income earned during this period would have been in the order of $100,000 but subject to a 15 percent discount for vicissitudes. This can be demonstrated by using a net weekly salary of $389.89 (see the table his Honour used) and the actuarial factor (203) Mr McRae provided for the five year period from 4 May 1997 to 3 May 2002. The calculation produces a capital sum of $79,148. To this must be added superannuation and the difference between the capital value of a full salary and a part time salary for the next two years and eight months. Taking account of these considerations, although not explained, I think his Honour’s assessment of $100,000 under this head can be justified and should not be disturbed.”
65 In effect, what his Honour said was that - if one did the necessary balance to the undercompensation of the plaintiff by taking out that period of her potential work history, and put it back in again - a figure of nearly $100,000 would be required. It was not accurate, therefore, to propose that in the case of Pelosi the Court of Appeal had approved an accumulation of economic loss from employment and a further economic loss deriving from the support of a husband.
66 I was referred to the passing commentary by Mason P in Rozniak v GIO (1997) ATR page 64456 but this does not cause me to alter my analysis of the relevant aspect of Pelosi.
67 Finally, I should mention that counsel for the defendant objected to this claim on the basis that no particulars had ever been given and indeed the impression I formed was that it was raised in address almost ad hoc, or, I might almost say al fresco.
68 Careful analysis of the authorities to which I have been referred shows that the claim for these damages as an additional matter, in this case, where conventional damages for an uninterrupted financial future will be awarded, is inappropriate. I therefore decline to include any particular ingredient for such a loss, that is not to say, that the breakdown of the plaintiff's marriage was not a relevant factor in the assessment of non economic loss.
69 The second matter to which I intend to make some preliminary reference is the capital loss of the business known as the Games Room. Again, no particulars were given of this. It was observed that the original purchase did not involve anything but a nominal payment for goodwill. It was said that as a result of the profit made in the year immediately prior to the accident a goodwill value had been created. This was the subject of much examination and cross-examination of both Mr Keep and Mr Carter, accountants called respectively on behalf of the plaintiff and the defendant.
70 Both of those gentlemen I accept as genuinely performing their accountancy tasks in accordance with the instructions given them. The problem about taking the results of their analysis and simply applying them in judgment is that what is really needed is a judgment about the validity of the assumptions that they were asked to make.
71 The question of the goodwill of the business having been created was something which emerged in questions asked of Mr Carter when giving evidence in chief. He was asked about putting a value on it and he said:

"Well I haven't performed any formal valuation. What I noted is in the purchase documentation it was originally acquired by the Easts for $3 goodwill, plus fittings, plus stock. That would indicate that the expectation to the vendor at the time, say two years earlier, was that the business wasn't profitable. The second thing I point out is that assuming the profitability had gone on as appears from the 1993 business record, if we assume that is valid as deriving $20,000, then we are still talking about a very small business which the buyer would see a higher risk generally so it might be $50,000 as an upper limit, probably even less that amount by one year's profit."

72 This was the subject of the some cross-examination by senior counsel for the plaintiff. Amongst other things he asked Mr Carter this question:

"So it's worth nothing when they started, and somewhere between 20 and 50 when they finish. That is right is it not?"

Mr Carter answered:

"In terms of those numbers, yes."

73 The final piece of evidence to which I think reference needs to be made however is the response in re-examination of Mr Carter when this matter was raised. He was asked:

"When asked some questions by Mr Wheelahan about the value of this business being on one view $20,000, and on another view $50,000. You say in terms of those figures, yes - does that answer indicate that you believe there were other factors that need to be taken into account?"

74 Mr Carter's response was:

"I was concerned in the way those numbers were put to me that it was to give them a greater credibility than they deserved, that is, this is a business with a very short history. It has been acquired for $3. I have speculated as to what the upper limit of its value might be. I have indicated with the $20,000 number that it was really nothing more than a substitution for the labour. Therefore my concern would be that the manner in which the question was put to me overstates the real import of what I was trying to say, that the business is of negligible value rather than of considerable value."

75 Again this was a topic that was raised on the run, as it were. I know nothing about the circumstances of the end of business other than I was told that it was simply closed down. There is no evidence of attempts to sell it or to value it at the time of closing down.
76 I do not find a claim in these terms that is, capital loss established.
77 I turn however, to the plaintiff's personal economic loss. I am satisfied, as I earlier mentioned that her economic capacity has been totally destroyed. The approach to be taken to her economic incapacity was the subject of counter submissions by counsel. As I have mentioned, the plaintiff advanced the proposition that there should be an award to her of 80 percent of the appropriate figure for income loss based on her operation of the Games Room business and I have said that I regard that as an appropriate approach.
78 The first sum claimed on behalf of the plaintiff conventionally referred to as economic loss to date is $126,951. This is calculated in accordance with a schedule that can be found in Ex. D on page 6 of the report by Mr Keep called "Report number 1 Section 5/1". As is apparent from that table and from the assumptions he has made, he has reached that figure assuming a compounding increase in the profitability of the business of five percent each and every year. I do not regard that as a reasonable approach. I indicated briefly earlier that I did not think that the plaintiff had gone into this business in an extravagantly entrepreneurial sense. I am sure that she intended to spend her time there and she enjoyed it and would have continued so to do but I am also satisfied that it was as much an outlet for her skills such as in the making of the costumes for the children as a commercial undertaking. One of the matters which was canvassed was the rather odd circumstance at first glance that the profit in the year ending 1992 (which represented only ten months of operation) was derived from a turnover (essentially, I gather, of cash through the till) very little different from the turnover in the following full year which resulted in a profit of $20,000 to the partners.
79 As I said during the course of evidence, that seemingly surprising situation merely emphasises that a business of this nature would be likely to return vastly different profits by way of margin depending on which activity is being productive.
80 The business bought some stock. The plaintiff, herself, in effect manufactured some of the stock and my attention has not been directed to any material from which I could make any sensible estimate as to how the differences could have arisen.
81 The figure of $400 per week is derived from the full year profit in operation of $20,000. That seems to me to be as good a guide figure as any with which I might appropriately start.
82 The defendant's submission, although he did not embrace it, was that at most I should take that figure of the $400 which is of course a gross figure and reduce it to $350 to allow for tax and, again, award the plaintiff 80 percent of that.
83 He then invited me to take off a discount for preponderance of adverse vicissitudes during the past. This is an unusual and unconventional invitation. There is nothing before me to suggest that the plaintiff should be treated in that fashion. I have not overlooked the circumstance that during a long period the plaintiff was on Social Security benefits. But that does not seem to me to be a factor I should reflect in all the circumstances.
84 The methodology advanced by the defendant would produce figures of somewhere between $50,000 and $65,000 for the past.
85 I have already mentioned that the claim by the plaintiff is calculated at $126,951 but the claim is in fact only for 80 percent of that for the reasons which I have earlier mentioned.
86 If you take the 80 percent of the calculation then the plaintiff's claim reduces to $101,560.
87 I have looked at the $400 per week gross and reduced that to $350 per week net and 80 percent of that over the last 290 weeks and it actually comes to a figure of $81,200.
88 All of that produces a range in submissions and counter submission between the $50,000 to $65,000 now argued by the defendant and $101,000 odd sought by the plaintiff. The calculation that I have done does produce a figure somewhere in the middle but it attracts me as a reasonable approach given all the circumstances of the plaintiff. Accordingly I propose for economic loss to date to include in the damages $81,200.
89 Next I come to the question of future economic loss. I take a multiplier of 708.5 for the future. I have derived that factor by performing a necessary division out of the accountancy figures of Mr Keep's which appear at page 7 of the report in Exhibit D which I have mentioned.
90 The plaintiff's claim for the future is scheduled at $321,290 but it is acknowledged that her claim is primarily for 80 percent of that sum and I was invited by senior counsel for the plaintiff to further reduce any resultant calculation by 15 percent to allow for adverse vicissitudes in the conventional fashion. Performing the necessary arithmetic, the plaintiff's claim then is represented by $218,477.
91 The defendant's submission requires me to start with a figure of $280 per week and then it was counsel's submission that I should reduce for adverse vicissitudes by 30 percent for reasons which he gave. I interpolate that I reject that submission. The arithmetical result on the defendant's submission produces a capital sum of $138,866.
92 If I approach the matter in the fashion which I did in relation to past economic loss, the factors that I would use would be the $280 per week (which represents taking taxation from $400 per week profit for a full year operation and awarding the plaintiff 80 percent of the balance), capitalising that on the authorised rate and deducting 15 percent as invited by the plaintiff's counsel for vicissitudes. There is left a calculated figure of $168,623.
93 Again, I have not failed to observe that that results in a very approximate but lower than mid point between the result of approach advanced by the defendant and that advanced by the plaintiff.
94 I have not, however, selected that figure because of result but rather because of approach. Accordingly I include in the plaintiff's damages for future economic loss $168,623.
95 I should observe that in the schedules submitted on behalf of the plaintiff there was an alternative approach advanced referable to average weekly earnings. I would make the observation that it is notorious that the average weekly earnings are derived from figures which show that in terms of numbers more people in employment actually earn less than the average figure than earn more.
96 I do not regard reference to average weekly earnings as an appropriate method in this case. I am fortified in that view by the observations that I have made of the plaintiff's departure from Sydney to avoid the stresses of living and her adoption of what I have called an alternative lifestyle. The business that she had established was seemingly one of pleasant but nonpressured activity. It was conceded that unless the average weekly earnings approach was taken, it would not be appropriate in this case to consider loss of employer contribution to superannuation.
97 Accordingly, the ingredients of damage which I have found for the plaintiff are as follows:
Out of pocket expenses, $71,978;

Non-economic loss, $233,100,
Future pharmacy, $4,309,
Future medical, $18,000,
Travel to medical, $10,000.
Community reintegration counselling, $3,000
The two stages of voluntary assistance to the plaintiff already received, $39,448 and $13,903 respectively.
Future assistance, $56,100.
Additional cost of holidays, $10,000.
Handyman and household help in the future, $30,705.
Past economic loss, $81,200,
Future economic loss, $168,623.
The total of those ingredients is $740,366.

98 The plaintiff may be entitled to interest on some of those items, and I reserve liberty to apply in relation to such interest. Subject to such claim being made I would direct entry of judgment for the plaintiff for the total figure that I have mentioned, and the defendant will be ordered to pay the plaintiff's costs.

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Last Modified: 06/30/2000