Martin v Kerr - [1991] TASSC 88

77/1991
List "A"

COURT: SUPREME COURT OF TASMANIA

CITATION: Martin v Kerr [1991] TASSC 88; A77/1991

PARTIES:  MARTIN, Roger
  v
  KERR, Jessie

FILE NO/S:  119/1983
DELIVERED ON:  2 October 1991
JUDGMENT OF:  Underwood J

CATCHWORDS:

Damages—Measure of damages for tort—Personal injuries—Earning capacity, provision of services, loss of amenities, loss of superannuation.

Judgment Number: A77/1991
Number of paragraphs: 88

Serial No 77/1991
List "A"
File No 119/1983

ROGER MARTIN v JESSIE KERR

REASONS FOR JUDGMENT UNDERWOOD J

2 October 1991

Introduction:

The plaintiff was injured in a car accident on New Year's Eve 1981. He and the defendant were both driving north along Bathurst Street, Launceston. He was in the eastern lane and she was slightly in front and in the western lane. Intending to go to a supermarket, the defendant turned right across Bathurst Street in front of the plaintiff and the collision occurred. Initially, the plaintiff felt no ill effects apart from a slight soreness in his back. Shortly after the accident, he went to work and afterwards to a New Year's Eve party. On the morning of 2 January 1982, he awoke to find he was completely unable to straighten his back. It was very painful. Crouched on all fours in the back of a land cruiser, he was driven by his wife to a doctor who gave him two injections. In result, the plaintiff was able to stand upright, pain free. Later that day the pain gradually returned and, ever since, the plaintiff has been in almost constant pain.

I accept the medical evidence and find that, in the accident, the plaintiff sustained damage to a disc in his spine at the L5/S1 level. Over five years there followed three major surgical operations and three other admissions to hospital for investigative/diagnostic procedures. The tortuously caused injury and the associated surgical procedures have left the plaintiff severely disabled. They are responsible for a gross diminution in the plaintiff's quality of life and the capabilities he had before the accident.

Summary of heads of claim:

On 18 March 1988 judgment was entered for the plaintiff against the defendant for damages to be assessed. Those damages fall to be assessed under the following heads:

1         Lost/diminished earning capacity –
(a)       from the date of the accident to the date of trial
(b)       from the date of trial
2         The provision of services prior to the date of trial in accordance with the principles expressed in Griffiths v Kerkemeyer;
3         The provision of pharmaceutical drugs and medical/para–medical advice and treatment from the date of trial;
4         Pain, suffering and loss of amenities of life before and after the date of trial.

Pre–accident history:

The plaintiff was one of three sons born to working class parents (his description) in Nottingham, England on 28 September 1947. His father, described by the plaintiff as a strict catholic, was a master plumber. One brother suffers from Down's syndrome and lives in an institution in the United Kingdom. The other is a hairdresser in Launceston.

After leaving school at 16, the plaintiff immediately secured an apprenticeship in the floor–covering trade. Shortly after its completion, 4 years later, the plaintiff, then 21, set off with a group of young friends to travel to Australia. Their chosen method and route was by motor vehicle, overland to India and thence by sea to Australia. He arrived in Darwin, he said, "with $10 in my pocket". He quickly secured work in Darwin and after a few months, saved enough money to continue his travels to New Zealand. Almost immediately after his arrival in that country, he was involved in a serious car accident and fractured his neck. He was hospitalised for a considerable period of time but after several months, was sufficiently recovered to take a job as a bar attendant. Again, the plaintiff saved his money and when he deemed he had sufficient, he resumed his tour of New Zealand which had been interrupted by the car accident.

In early 1971 the plaintiff came back to Australia. Because he had made friends with some Tasmanians whilst in New Zealand, he went straight to Launceston. There, he met his future wife, then a student at the Teachers College. To earn money he went to Tullah where he worked as an underground miner for a few months. The plaintiff then decided he ought to go home and visit his parents. He did not stay long and after a few weeks returned to Tasmania. On his return in November 1971 he and his wife commenced to live together. They have remained together ever since. They were married on 9 October 1976. There were four children of the marriage. The first, Simone, born on 25 February 1977, tragically died (a cot death) 8 weeks after her birth. The three surviving children are:

Stewart –         born 1 February 1978
Richard –         born 12 February 1981
Laura   –         born 7 February 1986

At first, the plaintiff returned to his trade as a floor coverer, initially as an employee and later, as an independent contractor. The work is heavy, requiring a lot of lifting and bending. In 1974, he and another carpet layer, Michael Vedovelli, went into partnership as independent contractors. The partnership lasted until 1978 when there was a down–turn in work and the plaintiff became an employee of Fon–del Furnishers Pty Ltd, a furniture and floor–covering business. In this job the plaintiff was engaged substantially to measure and quote for jobs and to sell furniture. He remained in this employment for about 7 months and then resumed work as an independent contractor, this time working alone.

In mid 1980, the plaintiff investigated the possibilities of building and operating a tenpin bowling alley in Launceston. He found that the cost of doing this was beyond his means but, in the course of his enquiries, he noticed that electronic games machines located in tenpin bowling alleys appeared to earn a lot of money. Further investigation lead him to opening his own business of an electronic games centre in Brisbane Street, Launceston, on 4 December 1980. I shall refer to this business in more detail later, but first it is appropriate to refer to the evidence given by the plaintiff's wife, Mr Vedovelli and others with respect to the plaintiff's personality and interests during the period I have referred to. I was particularly impressed by the evidence of Mrs Martin and Mr Vedovelli. It was corroborated by other witnesses. Mr Vedovelli said that the plaintiff was a good friend of his as well as a working partner. He said he was "good fun to be with". He said that he and the plaintiff played B grade pennant squash for 2–3 years, went fishing, diving, trail bike riding as well as engaging in other sporting activities. Mrs Martin described how, together with a group of friends, she and the plaintiff organised, on a regular basis, music and other activities for teenagers at the Albert Hall. She said that after the death of their first–born child she and her husband set up the Tasmanian organisation known as SIDS (Sudden Infant Death Syndrome). Together, she and the plaintiff enjoyed the company of friends at dinners and on other social occasions. She said the plaintiff had a sense of humour, "he had a spirit, a love of life ... one of the things that always stood out was that Roger smiled and I always thought that he smiled with his eyes."

I find that prior to the accident the plaintiff was by nature, a good–humoured, appropriately extroverted and sociable person. He was physically fit and enjoyed the application of his physical capabilities to work and sport. Probably due his upbringing, he was industrious and independent. He had faith in his own capacity to look after himself and those dependent upon him. A faith that I find was not misplaced by reason of the matters to which I have referred coupled with his apparent intelligence and readiness to be innovative and creative in matters relating to business.

The plaintiff has considerable business acumen, a fact with which he agreed. Wishing to put his carpet–laying days behind him and go into business, the plaintiff and his wife's then brother–in–law, Craig Young, decided that they would open an electronic games centre in leased premises in Brisbane Street, Launceston. These premises were formerly used as a restaurant and the fittings were of high quality. In the back of the premises the plaintiff and Mr Young installed approximately 40 machines each of which contained an electronic game. The front of the premises, fitted out with tables and chairs, was used as a restaurant.

The business opened on 4 December 1980 and was an immediate success. Initially, the machines were owned by Leisure and Allied Industries Pty Ltd and operated on the basis that the gross takings were shared equally between that company and the operators. The business was open from 9am to 10pm Monday to Thursday, 9am to midnight Friday and Saturday and from 11am to 8pm on Sunday. The partnership with Mr Young did not last long. On 28 February 1981 the plaintiff bought Mr Young's interest and the business was then carried on by Orbit Entertainment Pty Ltd as trustee for the Orbit Entertainment Trust All the units in the Trust were held by Roger Martin Pty Ltd which company in turn held them in trust for the Roger Martin Family Trust The plaintiff and his wife were the directors of both companies but until 30 June 1986, the beneficiaries of the discretionary Roger Martin Family Trust, were the children of the plaintiff and his wife, the grandparents of those children and the plaintiff's wife. The plaintiff became an additional beneficiary on 30 June 1986.

The plaintiff worked hard in his business. He was there most days half an hour before opening to get it ready for the day and, although he left it in charge of staff for varying periods each day, he was often there until late at night. At this time, the plaintiff's eldest child was about 3 years and the second child, just a baby. The plaintiff tried to arrange his working hours so that he would be with his family for most evening meals. The plaintiff did quite a lot of physical work in the business including cleaning and general maintenance. He also learned to do rudimentary maintenance work on the machines. This was heavy work in the sense that it involved pulling large machines away from the wall to gain access through the back and working on them in a bent or stooped position for prolonged periods. The plaintiff emptied the coins from the machines, each into a separate bag to keep track of the earnings of each machine, did the banking and kept documents to evidence all income and expenditure. The information on these documents was later recorded in detailed books of account kept by the plaintiff's wife.

The plaintiff soon realized that the profitability of his business would increase if he bought the machines from Leisure and Allied Industries Pty Ltd rather than sharing the takings with that company and accordingly, much of the income earned together with other capital, was applied to achieve this end. The plaintiff said, and I accept, that the business was one that required a high degree of attention from him. It was necessary for him to be constantly vigilant to maintain appropriate standards of behaviour. It was also necessary to ensure that the premises were always clean, smart and looked attractive. The nature of the business required constant attention to the games. When the youthful patrons mastered a particular game (something that was apparently achieved in a remarkably short space of time) its appeal and consequently its takings, diminished. The games had to be frequently altered electronically to increase the level of complexity and/or difficulty and also frequently changed for new games to maintain the business as a profitable one. The plaintiff did all of this successfully. The evidence indicates that by the end of December 1981, the trading profit of the business for that calendar year (after payment to the plaintiff of a weekly gross wage of $328) was in the order of $28,000.

The plaintiff did not see himself as owning and operating this business indefinitely for it involved long hours which kept him away from his family. He and his wife saw the Orbit Entertainment Centre as a start into business. She described it as "a stepping stone to other business ventures, and we were real positive about that." Further, it appears from the evidence of another electronic games operator, Mr Ron Butterworth, that the business is a fairly risky one. The life of the machines is limited as is evidenced by the depreciation rate for taxation purposes of 35.4%. Continual injection of capital is required, customer potential is fickle and the required level of management control very high. The industry in this State seems to be marked by centres that open and, after a few years operation, close down or are taken over by new owners. I find that it was the plaintiff's intention over a few years to build up the Orbit Entertainment Centre to its maximum level of profitability, and then dispose of it, hopefully with a capital gain, and apply the profits to a new business venture. However, the accident intervened and his intentions were not realised.

Just before the accident, in December 1981, the plaintiff purchased a house at 172 Punchbowl Road. The property was acquired by Roger Martin Pty Ltd as trustee for the family truSt The object of the acquisition was to renovate the property, derive income from it and ultimately dispose of it at a profit. A few years earlier the plaintiff had entered into a similar business transaction with respect to a house and shop.

Post Accident History:

The pain, which returned after the effects of the injection wore off, did not abate. On 18 February 1982, the plaintiff was admitted to St Vincents Hospital for six days. Under the care of the orthopaedic surgeon, Mr Einoder, he underwent bed–rest and drug therapy. Meanwhile, the business was run by the plaintiff's wife with the help of family and friends. I infer that the conservative treatment in hospital provided the plaintiff with some measure of relief for he returned to work on 13 April 1982. With his return to work, the level of pain in the low back increased. The plaintiff's evidence, which I accept, was that at the end of each working day, the level of pain increased to a stage where it was almost unbearable. It made him bad–tempered and ill–mannered. Nonetheless, he continued to work, consult his general practitioner, and take analgesics in the hope that as time went by, the level of pain would decrease. This did not happen and, by the end of 1982, his wife was spending more and more time in the business and the plaintiff less and less. Not surprisingly, having regard to the ages of their children, the marriage was put under considerable stress.

About this time, the plaintiff entered into some negotiations with Mr Butterworth. Mr Butterworth was doing the electronic repair work for the Orbit Entertainment Centre. He and a Mr Spilsbury owned a number of electronic games machines which were placed in various shops, hotels and similar premises throughout Tasmania. The income from these machines or "sites" as they are known in the business, was divided equally between the site owner and Messrs. Butterworth and Spilsbury. The negotiations were prompted in part by an entertainment centre in Hobart similar to Orbit being offered for sale. The idea discussed was that the three men enter into a partnership comprising the Orbit Entertainment Centre, the site operations and the business in Hobart known as "Noddys". The idea was that the machines from the two centres and the sites could be pooled, giving each business immediate access to a much wider variety of games. It was proposed that the plaintiff continue to operate the Orbit Entertainment Centre, Mr Spilsbury operate Noddys and keep the books of account and Mr Butterworth apply his skills in electronics to the maintenance of all the equipment. The proposal came to fruition and, on 6 December 1982, Orbit Entertainment Pty Ltd sold the assets held by the Orbit Entertainment Trust to Marbury Pty Ltd This company was the trustee for another unit trust, the units of which were divided between the plaintiff, Mr Butterworth and Mr Spilsbury or their nominees. The plaintiff said that one of his reasons for entering into the arrangement was to give him support in the management of his business. His "partners" knew of the plaintiff's back injury and pain but it was apparently a commonly shared hope that with the passage of time, he would recover. Unfortunately, the plaintiff did not recover and the new business was not successful although not entirely as a result of the plaintiff's disabilities.

During the early part of 1983, the plaintiff continued to work at his business but, his back pain prevented him from working to the same extent as he had done prior to the accident. The help given by his wife was considerable. By this time it was not uncommon for the plaintiff to be absent from work about two days of each week. Mr Butterworth said, and I accept, that during 1983 the Orbit Entertainment Centre started to look a little run down and the plaintiff was not maintaining the business at its previous level. This state of affairs is reflected in the diminished takings of the business during this period.

On 11 March 1983, the plaintiff consulted Mr Cull who arranged for the plaintiff to have a C.T. scan at St Vincents Hospital. It suggested the possibility of a central disc prolapse at L5/S1 level. This was confirmed on 19 April 1983 by a myelogram at Calvary Hospital. Surgical intervention by way of laminectomy was the indicated course of action and the plaintiff submitted to that procedure at Calvary Hospital on 19 June 1983. The myelogram required the plaintiff to be in hospital for 5 days. He was away from work for a total of 16 days and returned on 3 May 1983. About this time his wife described him as "looking wretched – his face was drawn, he had dark circles under his eyes, he moved very slowly, he grimaced, he looked totally run–down and worn out." On 17 June 1983 the plaintiff stopped work in anticipation of entering hospital two days later for the laminectomy procedure. As the events turned out, this was the last occasion he went to work.

Immediately after the laminectomy the plaintiff reported that the pain had gone. He said that, although he was sore and tender from the surgery, "the actual gnawing, nagging, aching, pain that I had just lived with had gone ... it was great." The plaintiff's hopes of a full recovery were dashed after about 8 weeks when the pain returned quite quickly. The plaintiff began to feel despondent and as the pain persisted, he began to be irritated by his wife and young family. The strain of this, coupled with the struggle to look after the children and run the business, led to Mrs Martin drinking too much. It reached the stage where she sought professional help but it would appear that this problem has subsequently since resolved.

Not only was the Orbit Entertainment Centre suffering from lack of attention by the plaintiff, but other aspects of the "Marbury business" were suffering as well. Mr Spilsbury had a dispute with Mr Butterworth about the amount of money the former was entitled to draw and he gave up management of Noddys. An employed manager who replaced him was dismissed after three months. Mr Spilsbury then left to go to Melbourne, giving only two hours prior notice of his intention to do so. The burden of the whole venture fell substantially on the shoulders of Mr Butterworth and he was unable to cope with it. About this time, a restaurateur showed interest in buying the residue of the lease of the premises occupied by the Orbit Entertainment Centre and its fixtures and fittings. In all these circumstances, it was decided in December 1983, to sell the lease and fixtures and transfer most of the electronic games machines to a site location at Roller World in Launceston.

In early 1984, the plaintiff consulted the orthopaedic surgeon Mr Bye. Initially, he recommended the use of a brace. The plaintiff tried this for a short while but it gave him no relief from back pain. On 22 January 1984, the plaintiff was admitted to Calvary Hospital for a discogram. This procedure indicated that a fusion at L5/S1 was appropriate and on 26 April 1984, the plaintiff was again admitted to Calvary Hospital where this procedure was carried out. The advice Mr Bye gave the plaintiff was that the fusion would be likely to give him relief from pain but he would have to wait for two years to elapse before the full benefit of the procedure would be realized.

About the time of this fusion, the plaintiff's brother was keen to buy a newsagency business, known as the Mowbray Newsagency, but had neither the capital nor the means to raise it. The plaintiff had the capacity to borrow and, using Orbit Entertainment Pty Ltd as the purchaser, the plaintiff raised sufficient capital and together with his brother on 30 April 1984 bought the lease and goodwill of the Mowbray Newsagency for $115,000 plus stock at valuation. The structure of the business arrangement was basically that initially, the plaintiff's brother and his wife would run the business and the profits would be divided, in the first year as to 66% to the plaintiff and 34% to the plaintiff's brother and thereafter each year by a lesser percentage to the plaintiff and a greater percentage to his brother until after four years the division of profits would be equal. The arrangement included a provision for the right to buy a retiring partner's share in accordance with a specified formula.

Four days before the business was actually transferred, the plaintiff was admitted to Calvary Hospital for the fusion operation. He said he remembered signing documents in connection with the purchase whilst lying on his back after discharge from hospital. The plaintiff said, and I accept, that "the idea being that when my back came good I would go and work in the Newsagency with Peter ... I was buying work. I was buying a job."

At the end of 1984 the "Marbury business" was finally brought to an end. The machines originally contributed by the Orbit Entertainment Trust were retrieved from Roller World, returned to the Trust and sold. There was no evidence of the trading figures for the "Marbury business" nor of its financial structure but the uncontradicted evidence of Mr Butterworth and Mrs Martin was that it returned no profits. Mr Butterworth added that in his estimate, he personally lost between $50,000 and $100,000.

Throughout the latter half of 1984 and 1985, the plaintiff's back pain persisted with associated paraesthesia radiating down both legs. However, he still believed that he might be able to get back to work as the two years from the date of the fusion had not yet passed. During 1985 the plaintiff received assistance and advice from rehabilitation officers in Hobart and Launceston. In the belief that about 2 years after the fusion he would feel the benefits of the surgery, he applied for a number of jobs. He recalls one was with a company as a carpet representative and one was as a social worker. He was unsuccessful. The level of pain did not diminish as anticipated for reasons which are made clear by Mr Fraser's evidence to which I shall refer later.

In mid 1985, the plaintiff developed a secondary complication. Experiencing acute episodes of pain in the stomach, occasionally radiating to the shoulder blades, the plaintiff consulted his general practitioner Dr Edmond. His diagnosis of a duodenal ulcer was confirmed by radiology and gastroscopy. His opinion that the condition was causally related to the non–steroidal anti–inflammatory drugs prescribed for the plaintiff's back complaint was not challenged and I accept it. It was Dr Edmond's opinion that the symptoms from the ulcer worsen with anxiety and stress caused by the plaintiff's disabling back condition. Cimetidene was prescribed for the control of symptoms and has since been taken regularly by the plaintiff together with Mylanta, a non–prescriptive antacid.

On 3 February 1986 the plaintiff again invested in the purchase of property with a view to earning income from its rental and a profit on its ultimate disposition. About this time, being a little longer than eighteen months after the fusion, the plaintiff noticed an exacerbation, not an amelioration, of his symptoms. Radiation of paraesthesia down both legs became more widespread and he started to lose sensation in the fourth and fifth toes. The plaintiff consulted orthopaedic specialists in Tasmania and corresponded with others in Melbourne and Canberra. By this stage the plaintiff, in constant pain in the lower lumbar spine was depressed and constantly irritable with his wife and children. It appeared to him that there was little, if any, prospect of an improvement in his condition. The relationship between the plaintiff and his family was by this stage very poor.

On 30 June 1986 the plaintiff sold his interest in the newsagency to his brother. The plaintiff's evidence was that, since the purchase, his brother and sister–in–law had worked hard and for long hours in the business, thereby increasing its profitability very substantially. This evidence is corroborated by the trading accounts tendered in evidence. The plaintiff said that it appeared to him unlikely that he would ever be able to work in this business and that it was unfair to his brother to let the existing arrangements continue any longer. Accordingly, he disposed of his interest in the business by way of selling all the shares he and his wife owned in Orbit Entertainment Pty Ltd

On 17 October 1986 the plaintiff bought two flats at 21 Patrick Street, also with a view to renovation, production of income and ultimate profit on sale. A month before the purchase of the Patrick Street property, the plaintiff wrote to an Adelaide surgeon, Mr Fraser. Mr Fraser responded and shortly afterwards, the plaintiff consulted him in Adelaide. Mr Fraser gave evidence. He is a Fellow of the Royal Australasian College of Surgeons who obtained a doctorate in medicine in 1989. His speciality is spinal orthopaedics and his practice is confined to referrals from other orthopaedic surgeons and neurosurgeons. I was much impressed by Mr Fraser's opinions and I accept them. He diagnosed the source of the plaintiff's continuing pain as a degenerate disc at the L5/S1 level. His recommendation was a discectomy and inter–body fusion at that level. He considered that this procedure might improve the plaintiff's symptoms. In the hope that this procedure would relieve him from the pain, the plaintiff had a second fusion in Adelaide in December 1986. The previous procedure by Mr Bye had been performed posteriorally. At operation, Mr Fraser confirmed his earlier belief that this fusion had not succeeded in that there was still movement at L5/S1 level. Operating on the front of the spine, Mr Fraser excised the troublesome disc and, taking bone from a donor site, wedged the space open to increase the area through which the nerve roots pass. Later bony fusion would render the joint completely immobile. His advice, which the plaintiff accepted, was that the full benefit of the procedure could not be expected for about two years. Post operatively, the plaintiff immediately noticed an improvement in that he regained sensation in the fourth and fifth toes. Apart from that the plaintiff's evidence in essence was that there had been no improvement in the level of his pain since 8 weeks after the laminectomy in 1983. But, he conceded that it was very hard for him, in 1991, to remember and describe in comparative terms the pain he experienced during specified periods of the past decade.

Mr Fraser reviewed the plaintiff twelve months after the operation. Examination revealed forward flexion of the spine limited to about two thirds of normal range. Following that review Mr Fraser reported on 28 January 1988 in the following terms:
"I last examined Mr Martin on 14 December 1987. He told me that the continuous ache in his back had reduced substantially. Overall he thought he was doing well and was pleased that he had had the recent operation. He said however that if he carried out too much physical activity he would experience increased aches and pains. He still experienced [sic] some soreness in both his buttocks and legs.
Plain x–rays demonstrated that the anterior fusion at the lumbosacral level had consolidated well.
I assess the patient's condition as being moderately improved as a result of surgery. I think it is likely that further improvement will occur over the next one or two years.
I consider the patient is now fit to carry out light physical activities and in the long term, I expect he will be able to resume up to medium type physical activities. I have advised him to avoid heavy physical work in the future."
That report is consistent with the events to which I shall now refer and I find it to be an accurate, albeit brief, account of the plaintiff's symptoms and condition at the time it was written.

At that time the plaintiff was in the care of his general practitioner and rehabilitation experts. A decision was made that the time had come to consider re–training the plaintiff for re–entry into the work force. The signs then were good for continued improvement in symptoms over the next twelve months. The plaintiff's capacity to earn income was carefully weighed and measured by him and his advisers and, in result, it was decided appropriate that he should enrol in February 1988 in a two year course at the TAFE College in Applied Design (Wood). The plaintiff possessed skills as a carpenter and general handyman. In 1978 he reconstructed the back of the family home in Maitland Street Launceston, using independent contractors for the plumbing, electrical and plastering work. In addition, he had done maintenance work over the years prior to the accident at his own home, at the investment properties and at the Orbit Entertainment Centre. As referred to earlier, he had a proven capacity to operate a small business. The Applied Design (Wood) course aimed to train people to design and manufacture quality furniture in their own business or as an employee of another. In prospect, the decision to enrol in this course appeared entirely appropriate. However, it turned out that the course was extremely arduous. Evidence was given by Mr Towle, the course co–ordinator. I accept his evidence. Mr Towle proceeded, no doubt correctly, on the basis that it is difficult to succeed in the establishment and maintenance of a small business. To make sure the students realised that success calls for long hours of hard work, Mr Towle made the course very rigourous. He condensed what was originally a three year course into two years. He made it compulsory for students to attend lectures each Thursday for 11½ hours with a one hour break at lunch time. It was also compulsory for students to spend each Friday from 9 to 4 (excepting the lunch–break) in the workshop learning to use the appropriate tools and machines. In addition, students were required to spend another 16 hours or so each week working on their own projects. Apart from these times, students were free to work to earn their own income.

The plaintiff was keen to do the course. He accepted the College rule that no drugs (including analgesics) could be taken whilst in the machine shop. Mr Towle, fully cognizant of the plaintiff's condition, permitted him to sit or stand at will during the classroom periods, excused him heavy lifting in the workshop and permitted him to go home if his back pain was too bad to endure without resort to analgesics. The plaintiff began the course with enthusiasm and in good spirits. His wife noted a marked lifting of his spirits. However, as the first semester passed, the plaintiff said that he found it increasingly difficult to keep up with the course. The long periods in the classroom caused him severe back pain as did standing on a concrete floor while working at a bench in the workshop. Mr Towle said that the plaintiff was enthusiastic and willing to try his best. He noted increased signs of physical distress as the first semester progressed. He said that the plaintiff mastered the use of tools "through sheer determination". The plaintiff was slow in completing a project due to be handed in at the end of the first semester. Mr Towle gave this description of the plaintiff:

"When I first met Mr Martin he was almost youthful in his meeting with me: very enthusiastic, very keen, very buoyant, very jovial. I noticed by the end of the first semester that [he] was wearing away very thinly. And I felt that – I think he was just about – just about hanging in there, if I can use that expression."

The plaintiff was ill during the break between the first and second semesters. He said that after his return he found it increasingly hard to manage the course. The level of pain in his back increased in frequency and intensity. Quite often it was so bad he had to leave the workshop, go home and take analgesics. The pain, difficulty and frustrations experienced by the plaintiff this year made him a very difficult person at home. He was abusive and irrational towards all the members of his family and there were many bitter arguments between him and his wife which on one occasion, ended with him assaulting her. By the end of the year Mr Towle's opinion was that the plaintiff did not have the physical resources to continue with the course or to make a living in the industry either as an employee or working for himself. Mr Towle consulted with the rehabilitation workers and expressed this opinion to the plaintiff. In February 1989 the plaintiff had a long and frank discussion with his wife (the first such discussion they had had for many years) and it was decided between them that he should abandon the course on the grounds that it caused him great pain which in turn, wreaked great disharmony in the home. I accept Mr Towle's opinion as accurate and the plaintiff's decision as appropriate. Interestingly, a cocktail cabinet and a chair made by the plaintiff during the year, were awarded first prize and a high recommendation respectively, in the inaugural Tasmanian Woodcraft Competition which comprised over 600 entries.

From 1989 to the date of trial, apart from an improvement in the plaintiff's level of general fitness, there has been little change in his symptoms or daily routine. From the foregoing outline of the plaintiff's pre and post–accident history, I now turn to deal with each of the heads of damage.

General Damages:

The accident and its sequelae are responsible for dramatic and enduring changes to the quality of all aspects of the plaintiff's life. It was not suggested by learned counsel for the defendant that the plaintiff was lying or consciously exaggerating his symptoms. With respect to past pain, I accept the plaintiff's account as accurate except with respect to the period after the second fusion and shortly before the commencement of the TAFE course during which there was a lowering of the level of pain.

Pain is measured by descriptive words which, even when uttered by the most articulate, can do no better than strike a cord in the listener's ear as being appropriate to describe pain that he or she may have previously experienced. Pain is a perception by the sufferer which is influenced, not only by physical factors such as bodily insult, temperature or air pressure, but also by emotional factors such as depression, hope, sadness and joy. An insight into a sufferer's perception is sometimes assisted by the observations of others and by a comparison of the sufferer's lifestyle with that followed before the onset of pain. From the plaintiff's own descriptive words of his pain, from his description of his pre and post–accident activities, from the observations of his wife and his friends who gave evidence and from my careful observations of him over the four days in which he sat or stood in the witness box, I make the following findings:

1Since 2 January 1982, apart from the period of eight weeks in 1983 previously referred to, the plaintiff has continually suffered to some degree from pain in his back.
2This pain radiates down into his buttocks and legs.
3Its intensity is exacerbated when the spine is subject to stress of a relatively minor nature.
4It necessitates continual resort to analgesics.
5It regularly interferes with his sleep and requires the plaintiff to take sleeping tablets.
6The consumption of analgesics and, in the early stages, anti–inflammatory drugs, caused a duodenal ulcer.
7The pain prevents the plaintiff from the pursuit of social, recreational and work activities.
8It was and is productive of severe depression requiring anti–depressant drug therapy.
9Not infrequently, the plaintiff wakes up in the morning with his back stiff and bent, the straightening of which requires a hot shower or bath and gentle exercise.
10In the home environment in particular, the pain and depression together have turned the plaintiff into an anti–social, irrational, argumentative and unlovable figure; a state of affairs that has reached the stage where there is a substantial risk that his marriage may fail and cost him the company of his wife and children.

The unchallenged medical evidence is that the origin of the pain lay in the degeneration of the disc at the L5/S1 level. Until bony union was achieved following the discectomy and inter–body fusion in December 1986, the probabilities are that the cause of pain was interference with the nerve roots at and near the damaged disc and surrounding spaces. It was hoped that cessation of movement at the affected level and the increased space made available for the passage of the nerve roots would alleviate the pain. The plaintiff says that it has not. I accept that. His evidence in this respect is well corroborated. Asked why this was so Mr Fraser said:

"There are possible explanations. One is, in his case he has had a laminectomy and he does have, as a result of that, scarring in the space around the nerves. And although the movement between the two vertebra has been abolished, in other movements, including just the stretching of one's legs, there is a traction effect on neural tissue through the sciatic nerves and their origin. And that does cause some movement of the nerves in the canal. Simply bending your head and neck forward does the same thing. So one explanation is that in some individuals just the movement of that may cause pain. But it is not something that you can prove."

The medical opinion in this case is that the plaintiff's symptoms are consistent with having been caused by the tortuous conduct and subsequent procedures that it necessitated. The extent and effect of those symptoms is a matter for the court to evaluate. Subject to one matter, to which I shall refer shortly, the probabilities are that the plaintiff's present condition is permanent.

Amongst the plaintiff's values, held life long, is the belief that a man's role is to work to provide support for his wife and children and the woman's role is to look after the home and those children. Also valued highly by the plaintiff is the work ethic. His inability to fulfil his perceived role in life has led to a lowering of his self esteem, contributing to the level of depression brought on by the circumstances in which the plaintiff has found himself over the last ten years.

In 1989, at the request of his legal advisers, the plaintiff was seen by Dr Sale, a psychiatrist At that stage, he was already taking anti–depressant drugs on the advice of his general practitioner, Dr Edmond. Dr Sale found the plaintiff to be significantly depressed, secondary to chronic back pain and the loss of control over his own affairs and destiny. In his opinion, the chronic depression heightened the perception of pain. The indications were and are for continued use of anti–depressant medication and drugs to assist the plaintiff's sleep pattern.

In the assessment of damages under this head, the extreme pain and interference with bodily integrity associated with the three major surgical operations and associated diagnostic/investigative procedures must not be overlooked but, looming larger is the state to which the plaintiff has been gradually reduced and the series of set backs to which he has been subjected following each procedure.

Although bony union is sound, the plaintiff suffers from disabling pain if he engages in prolonged stooping, bending, standing or sitting. Throughout the lengthy period he was in the witness box, I observed him shift about and lift the weight off his buttocks by pressing down on the arms of the chair. From time to time he stood up to change position. He said, and I accept, that he cannot drive from Launceston to Hobart without stopping at least once and sometimes twice. He and his wife gave an account of how together, they painted the kitchen of their home. The plaintiff avoided lifting or moving any of the heavy furniture and only used a roller. His wife used a brush to cut in around the edges and she and their eldest son moved the furniture. A job which I estimate would have taken the plaintiff about three days to complete before the accident, took him and his wife together, about nine days.

The level of his pain is perhaps gauged to some extent by the fact that on three separate occasions he submitted to major, very painful spinal surgery. He said:

"You have to weigh up which is the worst of two evils, the worst of the two evils was this pain, with this perpetual pain again, or going for the alternative of having this surgery done and really, quite honestly, there was no choice."

The plaintiff said that what he does each day is dictated by the state of his back when he wakes in the morning. Generally, it is then stiff and to move is painful. Some mornings are worse than others. A hot shower or long bath assists to relieve the pain. Most mornings the plaintiff goes for a long walk. He estimated about 10 kilometres but evidence of measurement showed it to be about half that distance. The plaintiff said that he finds walking and, in the summer, swimming, beneficial in that, provided he does neither for too long, it increases his mobility, general fitness and helps to release the tension and frustration. Not infrequently in the afternoons, the plaintiff lies down flat on his back for an hour or so. As a matter of habit, he walks to a nearby school to pick up his daughter after school. By arrangement with his wife, the plaintiff cooks the evening meal each week day. The evening is spent watching television or, if his back is painful, the plaintiff goes to bed early. Most nights, his sleep is disturbed on about two occasions when he has to get up and walk about. The drugs he takes to improve his sleep pattern enable him to return to sleep after each walking bout. The plaintiff helps with the housework although activities such as vacuuming exacerbate his pain. Lifting heavy weights and twisting movements of the back are no longer possible.

Mrs Martin's evidence, which I accept, was that since 1989, when the plaintiff abandoned the Applied Design (Wood) course, her husband has walked more often but, that over that period of time "either his pain has increased or his ability to deal with it has decreased". The plaintiff said that he missed being able to pick up his children and play with them as other fathers did. He said that he felt badly about the fact that, in his perception, he was a poor role model for his sons, who lived with a father who did not go to work every day. His wife said that over the years since the accident, the plaintiff has become increasingly irritable with and irrational and abusive towards the children. It has got to the stage where they tend to avoid being with him if there is any risk of disharmony arising. Mrs Martin said that there is a constant undercurrent in the house which frequently erupts into abusive and violent arguments. Their sexual relationship has petered out and the prospects of the marriage surviving are not good.

The pain, loss of self esteem, depression and consequential irritability and irrational behaviour are due to a variety of stressors, each one helping to perpetuate the others. The evidence is overwhelming that some of the stressors will remain indefinitely. There will be no physical improvement in the plaintiff's back and no further surgery is indicated. In so far as that is the primary source of pain, the plaintiff's condition is permanent. The other stressors which heighten the perception of pain are non–organic. Loss of self esteem is a major factor. If the plaintiff can return to work, the effect of this on his level of depression will diminish. As will be seen under the heading Loss/Diminution of Earning Capacity, I find that there is a prospect that sometime in the future, the plaintiff will be able to find, to a very limited degree, some work which will earn him income but it is little more than a prospect and is likely to be of limited nature and insufficient to fully restore the plaintiff's self esteem. I have reached the view, as did the medical evidence, that in the future depression will be a persistent but intermittent feature of the plaintiff's condition. Amongst all of this is worry about this litigation and the difficult financial circumstances in which the plaintiff and his family have lived in recent times. The plaintiff conceded that he has been worried about this litigation and his wife's evidence corroborated this. The plaintiff discussed his worries with Dr Edmond. According to Dr Sale, the cause of this anxiety is the passing of control over his future from his hands to the hands of others and until that is resolved, the anxiety will persist The conventional wisdom has always been that once the litigation is resolved, particularly if the resolution is to a plaintiff's satisfaction, the perceived level of pain and disability will improve. Cautious support for this proposition was expressed by Dr Edmond. He said:

"It [the end of litigation] will improve his general outlook but it does depend to a large extent on how he can look at the future. He's not – in my opinion he is not going to be able to return to work and support the family. But if he can liquidate his debts and provide the family with a reasonable standard of living, this will help him to some extent."

Dr Sale's opinion was equally guarded because of the length of time over which the anxiety had existed. Mr Fraser did not think that the removal of the litigation stressor would improve the plaintiff's perceived symptoms. He said that until recently he had subscribed to what I have called the conventional wisdom but, three years ago he and an orthopaedic specialist in the United Kingdom published some research in a reputable European medical journal. The material published related to the results of a survey of 300 patients half of whom had suffered compensable injuries and half of whom had suffered non–compensable injuries. The findings of the survey were that the symptoms of the former group five years after the settlement of the litigation had not improved significantly by comparison to the latter group. The preponderance of evidence in this case is that the end of the litigation is unlikely to improve the plaintiff's perceived pain. However, his wife described his personality as strong and I find that to be an accurate description. Notwithstanding the depression and pain, it is my assessment of the plaintiff based on the evidence that has been given and the manner in which he gave his own evidence, particularly when under cross–examination, that there is sufficient residue of resolve upon which the plaintiff can and will draw. I think there is a reasonable possibility that the plaintiff will realise that he must make the best of his lot in the future and there will be intermittent periods of optimism attended by perceived lower levels of pain and improved quality of life.

All heads of damage are intertwined to some extent and care must be taken to avoid overlapping. This court has traditionally adopted a conservative approach to awards of damages for pain, suffering and loss of amenities of life. See Cherney v Cole, Full Court 34/1984. That is not to say as Mr Kable submitted in his closing address, regard must not be had to the diminishing value of money when considering the prevailing standard for awards of damages under this head. In all the circumstances an appropriate figure for damages for pain, suffering and loss of amenities of life is $40,000.

Diminution/Lost Earning Capacity:

Mr Brown, of counsel for the defendant, did not dispute that any work involving prolonged lifting, stooping or bending was no longer open to the defendant. He did not suggest that the plaintiff could return to his trade as a carpet layer or work as a carpet salesman for such work involves considerable heavy lifting.

The plaintiff's case was that his capacity to earn income has been destroyed. His evidence was that he could not think of a job that he could manage. The defendant attacked this proposition with the claim that, since the abandonment of the Applied Design (Wood) course in early 1989, the plaintiff has made no effort to get work and, with the assistance of his wife or the employment of labour to overcome his physical restrictions, the plaintiff could utilize his acknowledged acumen and run a small business. It was put to the plaintiff that with his knowledge of and successful experience in property dealing, he could sell real estate. It was also put to him that he could sell life assurance or motor vehicles. But the plaintiff's response to these last suggestions was that he would not demean himself to do such work and that, with respect to the first suggestion, his reliability was dependent upon his back condition and his temperament so bad that he would not be successful selling anything to anybody.

With respect to his temperament, the evidence is that the recipients of his abuse, irritability and irrational behaviour are, in general terms, confined to his wife and children, perhaps, because they seem to him to be a daily reminder of his failure to fulfil his proper role in life. The evidence was that in the presence of friends, the plaintiff is able to control his temper. Most importantly, his behaviour in court over the whole period was entirely appropriate even when under extreme provocation by testing but perfectly proper, cross–examination. Interestingly, his wife said that each night after a day in the witness box she expected the plaintiff to return home drawn and exhausted but the reverse was the case. He seemed to be almost exhilarated by the experience. I find that so far as temperament is concerned, should the plaintiff find himself in a position to undertake paid work, he would be able to moderate his temperament to a level appropriate to the occasion.

A proper examination of the plaintiff's post accident earning capacity must begin with a consideration of his past His upbringing and work history prior to the accident detailed earlier in these reasons, make it clear that the plaintiff's natural inclination is to work and to work hard. In the absence of altered personality by reason of brain damage, it is unlikely that such basic inclination has changed. This is borne out by the events since the accident. The plaintiff returned to work shortly after the accident and, despite a continuing increase in the level of pain, remained at work for a year until he went to hospital for the myelogram in April 1983. He returned shortly after that procedure for five weeks until it was time for the laminectomy procedure. Six months later it was known that the laminectomy had been a failure but that a fusion may relieve the symptoms. Whilst submitting to that operation, the plaintiff entered into the business arrangement with his brother which would provide him with work when he was sufficiently recovered. The following year, in consultation with rehabilitation workers, the plaintiff applied unsuccessfully for work. A year after the second fusion, again in consultation with rehabilitation workers, the plaintiff started a training course with a view to getting himself back into the work force. The effect of all this evidence is that for the whole of his working life until 1989, the plaintiff was either in work or prevented from working by reason of disablement and even when so prevented, making every reasonable effort to get back into work. It is most unlikely that any employer would engage the plaintiff to sell real estate, life assurance or motor vehicles having regard to his disability. Further, with respect to the last two occupations, his perception of the value of that kind of work, held, I infer, long before the accident, renders him unsuitable for such work. In the light of his experience over the past decade the plaintiff's view that there is no work he can manage is not unreasonable and a criticism made through the cross–examination that since 1989 he had not "had a go" unjustifiable.

The plaintiff has some residual capacity to earn income in that he has intelligence and business acumen. However, its utilisation will be difficult. On the balance of probabilities his disability is such that coupled with his age, it is improbable that any employer would employ the plaintiff in any occupation. The successful conduct of a small business, as the evidence of both Mr Towle and the plaintiff bears out, requires long hours and hard work. Generally, the plaintiff's disabilities will prevent him putting in those hours and that work. It is no answer to say that the plaintiff can employ someone to do the heavy work, for even supervision and light work in most businesses such as a newsagency or real estate sales, requires prolonged sharp concentration of the mind and physical presence neither of which the plaintiff will be able to give on a sustained basis due to the level of pain. Further, it is a notorious fact that successful small business depends on everyone engaged in it being fully productive.

On the other hand, there is a reasonable possibility that the plaintiff's inner resolve referred to earlier will be applied to his business acumen and proven creativity to generate some limited income intermittently in the future. All of this, of course, is a matter of judgment based on impressions formed of the plaintiff and the witnesses who gave evidence. It is impossible to be precise. It is undoubted that the tort and subsequent medical procedures have substantially destroyed the plaintiff's capacity to produce income, leaving but a small residue. With respect to past loss until 1989 the defendant did not dispute that the earning capacity had been destroyed. With respect to the period since the plaintiff abandoned the TAFE course until the date of trial, I find that his earning capacity was similarly totally destroyed. With respect to the future however, for the reasons I have given, I find that it has been diminished by 90%. Quantification of the loss thereby occasioned provides a task as difficult as measuring the extent of the diminution.

Had the accident not intervened it is likely that the plaintiff would have continued to work full time in Orbit Entertainment Pty Ltd at Brisbane Street and, given the advantage of access to a wide variety of games, he would have entered into the "Marbury business" venture that was entered into at the end of 1982. Between the accident and 30 June 1983, the plaintiff was absent from work for a total period of eighteen weeks and as a result did not earn wages he would otherwise have earned in a total sum (after deduction for income tax) of $4,557.45.

Between 30 June 1983 and 31 December 1983, the plaintiff's wife was managing the Orbit Entertainment Centre as best she could and the business started to run down. During this period, Mr Spilsbury unexpectedly quit the "Marbury business". The plaintiff's disablement, Mr Spilsbury's departure and the advent of a purchaser for the lease and fittings at the Orbit Entertainment Centre, resulted in the business shrinking to a site operation principally located at Roller World. Had the accident not intervened the probabilities are that the "Marbury business" would have been wound up in December 1983 in any event, but the plaintiff would have continued to operate the Centre at Brisbane Street until either he tired of it or an opportunity to sell it at a reasonable profit arose or both. When that would have occurred is, of course, a matter of speculation but it would have been unlikely to have occurred much prior to December 1984.

The plaintiff did not return to work after the laminectomy operation on 19 June 1983 and accordingly, it is appropriate to compensate him for lost earning capacity on the basis that he would have remained an employee of Orbit Entertainment Pty Ltd until 31 December 1984.

As the plaintiff was injured on his way to work he was paid weekly payments in accordance with the provisions of the Workers' Compensation Act, the money being provided by an insurance company. The parties agreed that the appropriate course would be to ignore payments under the Act in the assessment of damages but take them into account after ascertainment of the final award. However, the payment of weekly compensation enables me to find that, had the plaintiff remained in the employment of Orbit Entertainment Pty Ltd until 30 December 1984, he would have received $21,941 (net) between 30 June 1983 and 31 December 1984. Thus, I assess the total financial loss to the plaintiff by reason of his inability to earn income as an employee of Orbit Entertainment Pty Ltd from the date of the accident until 31 December 1984 in the sum of $26,500 (rounded off).

Learned counsel for the plaintiff submitted that I should find that the business was a profitable one and the plaintiff's loss included a share of the trading profit because it was generated by the utilization of his earning capacity. As mentioned earlier in these reasons, the ultimate beneficiaries of the discretionary trust which carried on the business at the Orbit Entertainment Centre were defined members of the plaintiff's family but, until 1 July 1986, did not include the plaintiff. Thus, although any trading profit would have been solely due to the utilization of the plaintiff's earning capacity, destruction of that capacity has not resulted in financial loss to the plaintiff. In Graham v Baker (1961) 106 CLR 340 Dixon J (as he then was) Kitto and Taylor JJ said at p347:

"To be more precise, however, an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss."

This passage was cited by Gibbs J (as he then was) in Griffiths v Kerkemeyer (1977) 139 CLR 161 at p165. His Honour held that damages are recoverable, not simply for diminution of earning capacity, but because such diminution has been or may be productive of financial loss. This principle was applied in Lago v Lago [1983] 2 Qd R 29. The Full Court held that where diminution in the plaintiff's earning capacity resulted in loss to a unit trust of which he was not a beneficiary, such loss was not recoverable as part of the plaintiff's damages. See also Mercantile Mutual Insurance Company Limited v Argent Pty Ltd and Ors [1972] 46 ALJR 432 at p434.

Whether or not it is likely that there would have been a capital profit on the ultimate sale of the Orbit Entertainment business had the accident not intervened, it is difficult to ascertain but, in any event, for the reasons just set out the loss of any such profit by reason of the defendant's tortuous conduct, would not have resulted in financial loss to the plaintiff.

Given that the plaintiff and his wife saw the Orbit Entertainment Centre as the first step into a successful career in small businesses, I find that on the balance of probabilities, had the accident not intervened, the plaintiff would have acquired and successfully operated small businesses through such corporate or other financial vehicles as he may have been advised appropriate and from at least 30 June 1986, the plaintiff would have been entitled to receive the full profits of his earning capacity whatever the medium used to conduct the business. What the profitability of the hypothetical businesses would have been is obviously speculative but given the plaintiff's industry and ability, coupled with the need to maintain his young family, it is unlikely he would have continued with any business unless it earned him at least as much he could have earned in his trade as a contract carpet layer.

In the four years between the end of 1984 and the end of 1988 there is, not surprisingly, little evidence to assist in the assessment of the loss. Mr Vedovelli, the plaintiff's former partner, said that in early 1989 he gave up contract carpet laying and took a job as an employee of a floor covering business. The basis on which he took the job was that his employer agreed to pay him a salary of $30,000 gross per annum, being approximately the same amount as he was then earning as a carpet layer. Mr Vedovelli is still in the same employment but there was no evidence of his present salary. Application of the appropriate taxation table, tendered in evidence by consent, reduces an annual gross salary in 1988–89 of $30,000 to a net annual salary of $22,000 (rounded off) or just over $420 per week. This sum equates to 84% of the gross average ordinary earnings for full time adults (Tasmania) for November 1988 according to evidence from the Australian Bureau of Statistics. In November 1983 (a month before the lease of the Brisbane Street premises was sold) the plaintiff's net wage from Orbit Entertainment Pty Ltd equated to 75% of the same gross or average ordinary earnings.

Thus, a rough yardstick against which to measure a judgment based on the probabilities as I have found them to be, is to equate the measure of the loss of the plaintiff's earning capacity from 31 December 1984 to the date of trial by applying the mean of these percentages (80%, rounded off) to the gross average ordinary time earnings of full time adult employees (Tasmania) during each year to the last period reported, May 1991. I appreciate this calculation ignores the different tax rates applicable during the period but that is only one of the many imponderables involved in an exercise which, in the end result, is an exercise in judgment; the validity of which might be tested reference to a touchstone such as this.

The calculation produces the following result.

Year        Average weekly               80%                  Annual Figure
  Earnings
__________________________________________________________
1985                  400  320  16,640
1986                  429  344  17,900
1987                  449  360  18,700
1988                  480  384  20.000
1989                  516  413  21,500
1990                  550  440  22.900
1991                  503  450  23,400
Total:             $141,040

The evidence shows that for the financial year ended 30 June 1985, the plaintiff's net income by way of weekly payments of compensation (the last full year during which he received such payments) was $15,600 just $1,000 less than the annual amount first shown in the above table with respect to the twelve months ended 30 December 1985.

Addition of the above sum to the amount assessed for the period ended 30 December 1984 produces a mathematical result of $167,540 for the whole period prior to trial.

However, the plaintiff's pre–accident earning capacity generated income by way of saving the expense of employing labour to work on his home and investment properties. From the books of account which were tendered in evidence, the plaintiff extracted details of payments made to employ others to do work he said he would have done but for the accident. The total claimed on this basis amounted to a sum just in excess of $11,000. While the plaintiff is entitled to be compensated for some loss in this respect, I discount the claim quite substantially. The evidence tends to prove that, whilst the plaintiff would have been physically capable of doing much of the work, the majority of it was done in the period immediately after purchase when time was of the essence in order to maximize rental return on the investment. Had the accident not occurred, it is likely that the plaintiff's time available to do this work would have been much diminished by reason of the attention he would have given his business.

Finally, under this head with respect to past loss, there is the question of superannuation. The evidence was that the plaintiff's earning capacity generated sufficient income in the hands of Orbit Entertainment Pty Ltd to enable that company to pay $144 net per month to a superannuation fund administered by the MLC Assurance Company. If the plaintiff survived to the age of 65, he was the beneficiary of the fund. On 1 July 1986 the units were cashed. I find that the defendant's tort diminished the plaintiff's earning capacity to the extent (inter alia) that it was unable to generate the $144 (net) per month which was invested in a fund of which he would be likely to be the ultimate beneficiary. For this loss he is also entitled to compensation, for the evidence is clear that, but for the accident, the plaintiff would have managed his financial affairs so that, of the income he generated, such amount as was appropriate from a taxation point of view would have been applied towards a superannuation fund like the one in existence prior to 1 July 1986.

During the trial, the plaintiff sought to adduce expert opinion evidence of the likely future inflation rate, the future likely long term bond rate and the likely performance of the fund in which Orbit Entertainment Pty Ltd had invested. Applying the principles expressed by the High Court in Todorovic & Anor v Waller (1981) 150 CLR 402, I ruled such evidence inadmissible on the grounds of relevance. The loss for which the plaintiff is entitled to recover damages is the diminution or loss of the capital asset in so far as that diminution or loss is or may be productive of financial loss. In this respect, that loss is $144 per month. The fact that the sum was invested in a non–defined benefit superannuation fund, the performance of which is dependent upon future variable factors such as inflation, wages policy, taxation and the like, is not relevant. That this is so is apparent from the following passage taken from the statement read by the Chief Justice before handing down reasons for judgment in Todorovic:

"Where there has been a loss of earning capacity which is likely to lead to financial loss in the future ... the present value of the future loss ought to be quantified by adopting a discount rate of 3% in all cases, subject, of course, to any relevant statutory provisions. This rate is intended to make the appropriate allowance for inflation, for future changes in rates of wages generally or of prices, and for tax (either actual or notional) upon income from investment of the sum awarded. No further allowance should be made for these matters."

It follows that compensation of the loss of $144 per month in accordance with that principle will be compensation in accordance with law. Following my ruling, counsel for the parties announced an agreement that the plaintiff was entitled to recover $10,000 for this aspect of his loss.

With respect to past loss of earning capacity, some allowance should be made for the uncertainties of small business and the vicissitudes of life, although an allowance for the latter should be minimal having regard to the fact that many of the uncertainties have been removed by the evidence. Further, although agreement was reached with respect to past loss arising from the inability to contribute to a superannuation fund, care must be taken to avoid any overlapping of this item of loss with the ordinary financial loss caused by the destruction of the earning capacity. The former is just an aspect of the latter.

In my judgment, taking into account all of the matters to which I have referred, I assess the plaintiff's damage for lost earning capacity prior to trial in the sum of $170,000.

On 28 September 1991 the plaintiff turned 44. He said that it was always his intention to remain in work until aged 65, a further period of 21 years. Again, what the future would have held for the plaintiff but for the accident is really a matter of speculation but I see no reason why the findings I have made with respect to the period between the end of 1984 and the date of trial, should not apply equally well to the future. The uncertainties make the selection of a figure which represents the present financial loss suffered by reason of a total destruction of the plaintiff's earning capacity very difficult indeed. This exercise needs to bear in mind that the evidence demonstrated that the plaintiff had a real pre–accident prospect of utilizing his earning capacity to generate capital profits as well as trading profits.

Evidence was given by the proprietor of a floor covering business of the gross amount paid by him to a floor covering contractor during the immediately past financial year. I gained little assistance from that evidence, for no deduction was made for the cost of general overheads borne by the contractor and there was a conflict between the witness' evidence and that of Mr Vedovelli with respect to the cost of consumable materials used in the contracting business.

It seems to me that the best approach is to bring forward the reasoning applied in the assessment of damages for lost earning capacity prior to trial. In doing so, I infer that on the balance of probabilities, Mr Vedovelli's salary would have increased since early 1989. I take into account the findings made with respect to the provision of superannuation and the plaintiff's inability to do maintenance work around the properties he owns. I bear in mind the need to discount to make allowance for the residual earning capacity the plaintiff still has and generally, for the vicissitudes of life. In the exercise of my judgment I assess the plaintiff's damages under this head from the date of trial in the sum of $350,000.

To test the validity of that exercise of discretionary judgment, an assumption can be made that at the present time, had the accident not intervened, the plaintiff's capacity would have been utilized to generate a gross annual income of $38,000. From this sum $10,000 would have to be deducted for taxation allowing a net annual figure of $28,000 or $538 per week. To this sum, there should be added an amount to compensate for the need to employ others to do maintenance works that the plaintiff would have done himself. Such addition could produce a net weekly loss of $550. Such a sum is not an excessive amount for a person reasonably successful in a small business nor an excessive amount for a man able to earn income as a contract carpet layer. The application of the 3% compound interest tables over a period of 21 years produces a figure of $448,800. Deduction of 10% for found residual earning capacity produces a figure of $403,920 and a discount of that by 15% for general vicissitudes of life produces a calculation of $343,332. Such calculation does not take into account matters such as tax savings by the application of some of the notional income to a superannuation fund and possible capital profits. It represents no more than a litmus paper for testing the validity of the exercise of the discretion.

The Future Cost of Pharmaceuticals, Medical and Para–medical Expenses:

It was common ground at the trial that all past expenses under this head have been paid by the workers' compensation insurers and should form no part of the assessment.

The plaintiff explained that in relatively recent times he had been paying a weekly visit to a clinic in which is practised the Alexander technique for pain relief. The plaintiff described the treatment as "hands on" correction of posture and he finds it beneficial. The medical opinion is that such treatment can be beneficial to patients like the plaintiff and he would be well advised to continue it on a weekly basis for some indefinite time. The present weekly cost of the treatment is $35.

On the medical evidence it is likely that the plaintiff will continue to use analgesics and drugs to help his sleep pattern more or less indefinitely. Anti–depressant drug therapy is likely to be required intermittently in the future. The drugs the plaintiff is presently taking to control symptoms from his ulcer are likely to be required indefinitely. Further, it is likely that the plaintiff will need to consult his general practitioner with more or less the same frequency as he has been consulting him during the past twelve months or so.

Evidence was given of the present cost of all this and supports the following findings.

Medical consultations  $ 6.41 per week
Alexander Technique  $35.00 per week
Pharmaceutical Expenses  $ 6.50 per week
Total:                 $47.91 per week

The multiplier ascertained from the life expectancy tables, is 28 years. Application of the 3% discount rate produces a figure of $47,622. This figure should be discounted to $40,000 to make allowance for the prospect that drug consumption may diminish to some extent and the risk of early death.

Damages in accordance with the principle in Griffiths v Kerkemeyer

Under this head the plaintiff claims damages for services gratuitously rendered by his wife, the need for which was created by the defendant's tortuous conduct. The claim is limited to the period immediately after each of the three major back operations. The parties agreed that with respect to the first period the appropriate hourly rate is $6, with respect to the second period, $6.50 and with respect to the last period, the appropriate hourly rate is $7.61.

Both the plaintiff and the defendant gave evidence on this aspect of the claim. On each occasion after discharge from hospital, the plaintiff returned home and at first, was obliged to lie motionless on a bed set up for him in the lounge room. He was dependent on his wife for virtually every need. Gradually, as he recovered from the effects of surgery, the dependency on his wife diminished. For about the first four weeks after each operation he was dependent upon his wife to assist him to and from the bathroom and toilet, to assist him in and out of the shower and to wash his feet and legs. During that time, if his wife wished to go out she had to ensure that the plaintiff was left with drinks, food and medication within reach. During the next four weeks the level of care gradually diminished as the plaintiff became more mobile. By the end of three months, he was able to care for himself although Mrs Martin said that it was about six months before he was able to cut his own toe–nails. The post–operative needs and the amount of time required to satisfy them were more or less the same on each occasion. I assess 300 hours after each operation as being the time occupied in the provision of services, the need for which was created by the defendant's tortuous conduct. The application of that finding to the agreed results produces an award of $6000 (rounded off) under this head.

Summary:

Application of the foregoing findings and assessments to the summary of heads of claim set out in the first part of this judgment produces the following result.

1Lost/diminished earning capacity
(a)      from the date of the accident to the date of trial  $170,000.0
(b)     from the date of trial  $350,000.00

2The provision of services prior to the date of trial in accordance

with the principles expressed in Griffiths v Kerkemeyer  $ 6,000.00
3The cost of provision of pharmaceutical drugs,

medical/para–medical advice and treatment after the date of trial  $40,000.00
4Pain suffering and loss of amenities of life before and after the date of trial           $40,000.00
$606,000.00

Less workers' compensation payments $29,391.00
$576,609.00

To round off the calculations there will be judgment for the plaintiff against the defendant for $576,600.