Mayger v McKay - [2001] WADC 265

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MAYGER -v- McKAY [2001] WADC 265

CORAM: NISBET DCJ

HEARD: 11-12 OCTOBER 2001

DELIVERED : 27 NOVEMBER 2001

FILE NO/S: CIV 4430 of 1999

BETWEEN: KEVIN WALTER MAYGER
Plaintiff
AND
ROBERT WILLIAM McKAY
Defendant

Catchwords:

Damages - Assessment - Personal injuries sustained in motor vehicle accident - Causally independent condition contributing to plaintiff's symptoms - Disentanglement of - Future economic loss

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Damages assessed at $94,698.60

Representation:

Counsel:

Plaintiff: Mr T N Cullity
Defendant: Mr P R Momber

Solicitors:

Plaintiff: Trewin Norman & Co
Defendant: Peter Momber

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

NISBET DCJ: In this action the plaintiff seeks damages for injuries he sustained in a motor vehicle accident on 17 September 1998. By the time of the trial he was 49 years of age and approaching his 50th birthday, he having been born on 5 February 1952.
The plaintiff left school at the end of year 10 and entered into an apprenticeship as an aircraft engineer with McRobertson Miller Airlines. When that business was taken over by Ansett Airlines he transferred his apprenticeship to S W Hart & Co as a sheet metal worker and qualified as a tradesman after three years. Following completion of his apprenticeship he stayed for about a year with that firm. In 1974 he started work with Osborne Metal Industries as a sheet metal worker and after two years he was engaged as foreman in its compost tumbler division. He spent two years in that job until Osborne Metal Industries opened a new factory in Balcatta where the plaintiff was promoted to foreman and put in charge of about 50 people. This he did until he transferred into the sales area of that business in about 1984 or 1985, selling (mostly) garage doors. He spent a couple of years in sales until 1986 when he transferred to another business where he spent about 12 or 18 months again in sales until he was approached by some former employees of Osborne Metal Industries who had set themselves up in business in competition as T & G Sheet Metals. He was employed as a sales representative by that firm for about four years until September 1991 when he was approached to re‑join Osborne Metal Industries which had by that time been taken over by B & D Australia. He accepted B & D's offer and returned to his former firm, again as a sales representative selling garage doors. Initially he was employed as a salaried sales representative in receipt of a salary, commission and bonuses but after two or three years, he could not remember precisely when, the company required him to become an independent contractor to it and hence he formed the company Howbray Pty Ltd which contracted his services to B & D. This employment was commission based and remained so until 1 April 1999 when he reverted back to being a salaried employee.
His duties as a sales representative involved him in extensive driving throughout the Perth metropolitan area. He had been allocated an area generally speaking south of the river from Perth down to Rockingham and east (or rather south‑east) to Armadale. He did insurance work for the company, that is to say quoting for the rectification of garage doors and roller doors which had suffered impact or storm damage or the like, an area in which he apparently had considerable expertise, and he would additionally chase up private contacts the names of whom were given to him out of the main office. Travelling some 50,000 kilometres a year he estimated that in a reasonably lengthy day, sometimes nine or 10 hours, he would be in and out of his vehicle for about eight or nine hours at least per day. Each night he would set out what work he had to do and plan his route so that as far as possible he went in one roughly continuous line heading south in the morning and another heading roughly north on the return journey. This would involve him driving for about half an hour and then stopping for about half an hour assessing damage to insurance jobs, measuring installations for new garage doors and the like.

The accident

On 17 September 1998 the plaintiff was driving his motor vehicle in an easterly direction along Beach Road in Hamersley approaching what I infer was the Warwick Shopping Centre situated at the corner of Beach Road and Erindale Road when a vehicle in the left hand lane alongside the lane he was travelling in went to turn left into the shopping centre car park. A vehicle driven by the defendant looking to enter Beach Road from the shopping centre car park failed to observe the plaintiff and, it would seem, observing the other vehicle turning left into the car park mistakenly thought the road was clear for him to enter into the Beach Road carriageway which he did, going straight across the plaintiff's line of travel. There was a significant collision when the plaintiff banged straight into the defendant's vehicle. This caused the air bag in the plaintiff's vehicle to activate, although, on the plaintiff's description, somewhat incompletely. The air bag struck the plaintiff's right arm and shoulder but did not prevent him from going forward to the left so it seems he was only partially restrained but in a manner that caused a twisting forward motion inside the vehicle. He said that his left arm hit the dashboard.
The plaintiff described the shock that he sustained in the accident, remaining in his vehicle for some little time. When he recovered his wits he telephoned his son who came and collected him and took him to his doctor, Dr Laney. Presenting to Dr Laney the plaintiff said that at that time he had pains in his right shoulder and chest and his left leg was very sore. Dr Laney prescribed rest but he went to work the next day leaving early in the afternoon because he was in pain. He returned to see Dr Laney early the next week. The plaintiff could not recall if he was prescribed any medication at the time of that next visit. A month after the accident the plaintiff was still suffering pain in his chest, his neck, his back between the shoulder blades and his left leg and so he asked Dr Laney if he thought chiropractic treatment would be beneficial. Dr Laney referred him to a chiropractor, Mr Mark Pope, to whom the plaintiff went two or three times a week for about a year. He continued to work. Regrettably the attendances upon Mr Pope only gave temporary relief and the plaintiff's symptoms continued. The plaintiff's symptoms made driving in his employment very difficult for him he said. He described having to look over his shoulder to left and right during the course of driving and the very act of sitting and driving caused him considerable discomfort. From time to time he would stop his journey to take a rest. He found getting in and out of the car very difficult. For a time he tried Mersyndol but found that that medication made him very drowsy and he then tried some other medications.
When he found his attendances upon the chiropractor were not giving him any lasting relief he took up his wife's suggestion that he attend upon a physiotherapist. His wife is a nurse and she was concerned that chiropractic treatment was not beneficial. The plaintiff returned to Dr Laney and asked his advice. Dr Laney sent the plaintiff to a physiotherapist, Mr Hans Fisch. The plaintiff attended upon Mr Fisch about three days a week until May or June of this year. The plaintiff thought the physiotherapy treatment was beneficial but he did note that he started suffering badly from headaches. Generally speaking the plaintiff thought that in the 12 months or so before the trial his symptoms had worsened.
The plaintiff described a continuation of the symptoms of which he had previously complained but which he thought were getting worse. These, he said, impacted upon his performance at work. He described how his work situation changed after the reversion from self‑employed subcontractor to employee on 1 April 1999. Coupled with this change was an increase in his budget of some 45 per cent meaning that the sales targets he was expected to meet before he participated in additional commission and bonuses was increased by 45 per cent at a time when his physical condition meant that he could not work the hours that he did before the accident. He pointed out that prior to the accident he was able to work 10 hours a day but since the accident he found it difficult to work eight or nine hours a day. In each of the years 1994 and 1995 he said he was the Australian Sales Representative of the Year for B & D whereas since the accident and since the change in his employment structure he has only been able to meet his monthly budget irregularly. For the first 12 months after the accident he said that he achieved most of his budgets but since then and following upon the change in his employment status on 1 April 1999 it has been rare for him to have met his budget and indeed he described himself as struggling. His employment situation took a turn for the worse, he said, in late September 2001 when he was reprimanded in respect of four errors he was said to have made in the performance of his work. He did not accept that he made all of the errors, explaining that of the four only one he agreed was a silly error of his. Of the other three he had checked two to review his employer's attribution of blame to him and said that he did not agree that they were totally his fault claiming that the installer was partly to blame. Whatever the true cause of the faults the plaintiff was given two letters on 28 September 2001 by his manager, Mr Stuart McLean (Exhibit P1). The first of these letters expressed the opinion that Mr McLean thought that the state of the plaintiff's health was causing his judgment to be impaired which resulted in costly errors and customer complaints. The letter went on to ask him to consider taking some sick leave. The second of the letters confirmed that the plaintiff had been counselled about his position.
In consequence of this the plaintiff fears for his job security. He had hoped that he would be able to work through until he was 65 years of age but now doubts whether he will be able to. This situation has been compounded by the fact that the plaintiff's employer has now been taken over by another company, apparently a merchant bank.
Mr McLean, who was called to give evidence on behalf of the plaintiff confirmed much of what the plaintiff had said. In Mr McLean's assessment the plaintiff was at fault in all of the four matters in respect of which he said he counselled him and additionally testified that these faults cost the employer $11,000 in rectification expenses. Mr McLean had come to the opinion that the plaintiff's judgment was not what it should have been and had deteriorated.
Mr McLean further confirmed that the plaintiff was not meeting his budget and had not been for the past 12 months save for one occasion when he had. For example, he said that in the previous month the plaintiff's shortfall of sales against budget was in the order of $30,000. Whilst conceding that there were market forces that may have contributed to the down turn in sales, Mr McLean went on to say that in the past six weeks it had become obvious to him that it wasn't the market that was the cause of the plaintiff's failures to meet budget. He thought it was the plaintiff's ill health. He described observing the plaintiff when the plaintiff was not in a position to see him. The plaintiff had parked his motor vehicle away from the main work area and away from the staff car park when Mr McLean, taking a cigarette break from his work outside the premises, happened to see the plaintiff arrive in his car and noted the difficulty he had in getting in and out of his vehicle. He described what he saw. In summary, he observed the plaintiff apparently not wishing to be seen, easing himself out of the vehicle slowly and using the door and the roof of the car as support to get out.
Finally, Mr McLean said that the company's policy with regard to warnings was that if two written warnings were given to an employee they are then told to look for other employment, and, he said, that the plaintiff was getting close to reaching this point. Mr McLean was not cross‑examined on this testimony.
The plaintiff sought further assistance and Dr Laney referred him to Dr John Salmon, a specialist in pain management, upon whom the plaintiff attended first on 30 April 2001. Initially Dr Salmon arranged for the plaintiff to see a different physiotherapist for assessment but the plaintiff thought she did not help him and returned relatively recently to Mr Fisch. After reviewing the plaintiff's progress with physiotherapy Dr Salmon decided to try some injections upon the plaintiff and on 26 June 2001 he performed a bilateral C3/4 facet joint injection and an x‑ray guided epidural injection at the L5/S1 segment on the right side of the plaintiff's spine. The plaintiff thought that the lower back injection did not work at all but that the injection in the neck freed up his middle range of movement but not at the extremities.
The continuation of the plaintiff's difficulties caused his wife to attend upon the plaintiff's general practitioner and advise him of what she perceived were changes in the plaintiff's mood. This occasioned Dr Laney to prescribe Aropax for the plaintiff for depression.
Accordingly, at trial, the plaintiff's regime was physiotherapy with Mr Fisch, medication consisting of Aropax for depression, Brufen as an anti‑inflammatory and analgesic, and Panadeine Forte.
Apart from the effect of the plaintiff's symptoms upon his general health and well being and his employment, the plaintiff's symptoms have impacted upon other aspects of his life as well. He is obviously a devoted family man. He has three sons aged 24, 22 and 18 at trial, two of whom are still at home. He told the court that he has always been actively involved with his sons and their sport and continues to enjoy their company playing golf with his older two boys one or two times a week before the accident. Since then he has played golf only once and had to stop at the third hole. He has played some social volleyball before the accident but not much since. He is an Australian qualified Level 2 basketball coach and coached and trained basketball teams both for his sons' teams and other district teams. For two seasons after the accident he continued as manager of the State Basketball League Wanneroo Districts team, however, he found the additional work associated with this too onerous and retired from it.
The plaintiff was active in other areas as well, describing a regime of beach walking with his dog summer and winter but this activity too has ceased and the general diminution in his physical activity has occasioned him, he said, to put on a considerable amount of weight - 15 kilograms. Certainly the plaintiff appeared overweight when he gave evidence and, from my own observations, uncomfortable with the amount of weight he was carrying. He said that his wife tried to help him with his diet and she, when she gave evidence, said that she watched the sort of food that they both eat although again, when I observed her giving evidence, I thought that it could not be said that she is a slim lady and I could not help but wonder if there were dietary factors present in the plaintiff's weight gain, but this was not explored in cross‑examination of either the plaintiff or his wife by counsel for the defendant. Some of the medical practitioners have referred to the need for the plaintiff to get fit and lose some weight however there is no evidence from which I can infer that the plaintiff's weight gain is as much dietary as accident related and, the balance of the evidence therefore favours the view that the plaintiff's excessive weight and the difficulties associated with it have been caused by his inability to exercise.
Additionally the plaintiff described having to fly to Karratha one day during the course of his employment and sitting in the cramped space of an aeroplane made him very uncomfortable, caused him tremendous pain and obliged him to take some days off work. It was put to the plaintiff in cross‑examination that none of the doctors had recorded the plaintiff's necessity to take time off work on account of his symptoms. This was not taken up by counsel for the plaintiff in re‑examination but there is a clear reference to it in Dr Salmon's report of 29 June 2001.
What the plaintiff did concede in cross‑examination was that work had become more stressful for him not just because of his injuries but because of the changes in the management and employment structure and the increased pressure of higher budgets. He also conceded that his income rose for a time after the accident although it has since fallen considerably.
The plaintiff's wife was called to give evidence. They have been married for some 27 years. Mrs Mayger is a nurse she having qualified in 1989 since when she has worked full time. She described her husband as being a very active man before the accident, committed to his work, his family and his sons' sports. She said that before the accident he hardly had any time off work and rarely complained about back or other problems. They had a busy family and social life, particularly with their sons, and the plaintiff, she confirmed, used to play golf with them two or three times a month. After the accident this all changed. Mrs Mayger said that her husband's work pattern changed describing it as having slowed down considerably. Physically she said that her husband works less and less, cannot stay seated for a long time and is obviously uncomfortable. As to his mood Mrs Mayger said that before the motor vehicle accident her husband was a calm, well motivated and positive person who was slow to anger but since then he has become extremely irritable and sometimes is not pleasant to be around. She became so concerned with his flattened mood and affect that she went to see Dr Laney out of concern for his mental state. She described the plaintiff as having put on weight, become less motivated and worried about his future, particularly his employment prospects. She was not cross‑examined at all.
By way of medical evidence the plaintiff called Dr John Kingston Ker, a rehabilitation specialist, Mr Peter Watson, a neurosurgeon, Dr John Francis Laney, his general practitioner and Mr Hans Heinrich Eberhard Fisch, his physiotherapist.
Dr Ker, whilst acknowledging the plaintiff's symptoms and his diagnosis of a combination of soft tissue injury and an exacerbation of pre‑existing but asymptomatic degenerative conditions of the spine, thought that much of the plaintiff's increased level of symptomatology and in particular his anxiety and depression could be attributed to his approaching trial. Dr Ker said in his last report:
"I would be hopeful that with the resolution of his medical legal affairs, that his level of functioning might stabilise and his work performance be maintained."
This opinion should be read against a background that earlier Dr Ker had thought that there was potential for a reduction in the plaintiff's working life but as I understood the general effect of his evidence this would come later, that is to say he may not be able to continue in his present work until age 65 years as hoped but may be obliged to retire earlier. For example, in Dr Ker's first report of 21 September 2000, he said:
"Your client, Mr Mayger, I note is 48 years of age. Investigation of his spine has demonstrated localised degenerative change.
In such a circumstance, I believe that there is some likely opportunity for advance of the changes within his spinal radiographs over time and with such advance this may well increase the intrusiveness of his symptoms. Were his symptoms to become more intrusive, then clearly there would be a concern that his capacity to sustain work long term - that is to say the next 15 years, would come under significant threat with the potential for reduction in his working life."

Mr Peter Watson, a neuro‑surgeon who examined the plaintiff on a number of occasions, first thought the prospects for his complete recovery were good. In his report of 17 May 1999 he wrote:
"In summary Mr Mayger has soft tissue and ligamentous injuries principally to the cervical spine and to a lesser extent lumbar spine as a result of the motor vehicle accident on 17 September 1998. There is a pre‑existing spondylolisthesis noted on x-ray at L5/S1. Mr Mayger has a good prognosis for recovery over 18 ‑ 24 months with a conservative exercise programme."
About a year later Mr Watson reviewed the plaintiff and in his report of 20 April 2000 noted that the anticipated improvement in the plaintiff's symptomatology had not been realised but that he was still optimistic that he would make a good recovery. When he examined him on the third occasion on 22 February 2001 Mr Watson was disappointed to see that the plaintiff had not improved as he had hoped. He thought the plaintiff's occupation requiring him to drive the long distances that he did were part of the reason why the plaintiff had not made the recovery he had anticipated and was continuing to experience the problems that he did. He wrote:
"In summary, Mr Mayger has sustained soft tissue and ligamentous injuries to the lumbar spine and the cervical spine. He has pre‑existing spondylolisthesis in the lumbar spine. His cervical spine problems are his major concern and these are beginning to cause him difficulty with his work which does have a peculiarity of requiring an inordinately large amount of driving up to 1000 kilometres a week. Whilst I believe Mr Mayger would be able to work as a sales assistant, I believe this amount of driving needs to be curtailed in view of his ongoing symptoms related to the motor vehicle accident."
Pressed in cross‑examination, firstly to agree with an opinion expressed by Mr Nicholas Anastas, an orthopaedic surgeon, that the plaintiff's motor vehicle accident did not have anything to do with his symptoms, Mr Watson refused to agree. Secondly, pressed to acknowledge that the plaintiff's driving regime whereby he was able to perform his duties by driving for half an hour then getting out of his car and "walking around in the fresh air" for half an hour was the ideal working environment for him, Mr Watson again refused to agree. Mr Watson insisted that the plaintiff's presentation in part was due to the fact that his driving continued to aggravate his symptoms and while he still had to drive the distances he did he would still have difficulties.
Dr Laney gave evidence that he has been a general practitioner for about 30 years and that the plaintiff has been a patient of his for about 20 years. Dr Laney conceded that the plaintiff's recovery was not as good as he had hoped. In his opinion having been the plaintiff's treating physician for a good many years the plaintiff had been left with a disability related to and because of his motor vehicle accident. He noted that in the plaintiff's history there was one past episode of complaint of back pain when in May of 1990 he treated the plaintiff when he told him that he had hurt his back whilst lifting a roller door, but that difficulty apparently subsided and there were no further references in the notes to treatment arising out of that incident.
Dr Laney likewise thought that the plaintiff's work did not help his recovery because the constant driving exacerbated his symptoms. With regard to Mr Anastas' opinion Dr Laney could not agree, observing that the plaintiff was more active prior to the motor vehicle accident than he is at the present and said that it is difficult to correlate radiographs to an increase in symptoms. Dr Laney thought that the plaintiff would continue to need medication for the foreseeable future and would need intermittent physiotherapy treatment from Mr Fisch. He thought, however, that his depressed mood would settle down with time saying that "he couldn't see" the plaintiff remaining on Aropax for the rest of his life.
Mr Fisch gave evidence of the regime of treatment undergone by the plaintiff under his supervision and outlined a programme to assist the plaintiff over the next three months. In his opinion the plaintiff could not hope to improve without some sort of exercise programme. This had to be structured so that there was first a managed exercise programme and then a move towards self‑managed exercise under the general supervision of Mr Fisch. Whilst it was not stated clearly all are concerned with Mr Mayger's weight and I infer the exercise regime is designed to reduce his weight, increase muscle tone in the abdomen and shoulder musculature in order to improve the fitness of the neck and lower back. Mr Fisch was not cross‑examined.
In the defence case Mr Anastas was called to give evidence and the reports of Dr Rosenthal were admitted into evidence by consent. Mr Anastas expressed the opinion that having seen the plaintiff once, whilst he agreed with other medical practitioners that the plaintiff presented with a soft tissue musculo-ligamentous type injury to his cervical spine, thoracic spine and lumbar sacral spine as a result of the motor vehicle crash on 17 September 1998, he thought the history of the spontaneous increase in the plaintiff's symptoms since that accident were not due to the accident but rather "… to the natural progression of radiological changes seen in his cervical spine, thoracic spine and lumbosacral spine."
In my opinion, however, the preponderance of the medical evidence and the evidence of the plaintiff and his wife, neither of whom were seriously challenged in cross‑examination (Mrs Mayger not being cross‑examined at all) show that the plaintiff led an active, full and complete working, social and family life before his accident but has since experienced considerable difficulty. The only causal connection that can be made on the weight of the evidence is that the plaintiff's presentation is due either to injuries sustained in the accident itself which have not resolved or, alternatively, the accident has caused pre‑existing but asymptomatic degenerative conditions of the spine to become symptomatic, in which case the defendant is still liable to compensate the plaintiff in damages for their sequelae. Dr Rosenthal's reports stress the importance to the plaintiff in managing his weight and having regard to the tone and content of Dr Rosenthal's written opinions, it was surprising that there was no cross‑examination of the plaintiff or his wife on this issue because at least in part it is Dr Rosenthal's opinion that the plaintiff's condition could be improved if he better managed his weight. Dr Rosenthal did say however, that:
"I consider that there is scope for considerable further improvement though I do think that Mr Mayger will be left with some low grade musculoskeletal symptoms of a more permanent nature. Provided that he continues to address weight and fitness issues I would envisage him being able to continue working until normal retirement age."

General damages

In my opinion the evidence discloses that the plaintiff has sustained a significant injury of the soft tissue type to both his neck and low back and, additionally, an exacerbation of pre‑existing but asymptomatic conditions of his lower spine, none of which have resolved with time and treatment. I expect that resolution of his problems may take a number of years yet and the evidence suggests that there will be some curtailment of his working life. In this regard, having observed the plaintiff give evidence, having heard from Mr McLean in particular whose evidence to me demonstrated that the plaintiff is trying to do his best under difficult circumstances, and having regard to the evidence of Dr Ker, this means that the plaintiff will probably have to retire early. He will have to continue to endure the symptoms described earlier in these reasons for some years yet. Other aspects of his life have been significantly diminished, as already noted. Looking at the provisions of s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 I assess the plaintiff's accident caused injuries as being 15 per cent of a most serious case. The prescribed amount relevant to this assessment is $232,000 and what is known as the deductible threshold is $11,500. The calculation is thus:

$232,000 x 15 – $11,500 = $23,300

100

Special damages

The parties agreed that the award for past expenses should not include any amounts which have already been paid by way of hospital, medical, pharmaceutical, chiropractic and physiotherapy expenses, contrary to what is proper practice, and that only the plaintiff's agreed unpaid out of pocket expenses of $591.65 should be included in the award and I will order accordingly.

Future medical and related expenses

The only figures supplied for the cost of medication were in respect of Brufen when I was told that the parties had (apparently) agreed that at two tablets a day the cost would be $120 per annum. There was no evidence about how much longer the plaintiff would require this medication, or how long a prescription lasted without needing another visit to a doctor to get one. As to Aropax, Dr Laney said that he could not see the plaintiff requiring it for the rest of his life. There was no evidence as to its cost or usage rate. Whilst I am persuaded that the plaintiff will require these medications, along with over the counter analgesics, for some little time, the best I can do is to make a global allowance for all future medications and the associated costs of attendance upon medical practitioners to obtain the relevant prescriptions and in this regard I allow the sum of $1,000.
The cost of future physiotherapy treatment was the subject of evidence from Mr Hans Fisch. Exhibit P4 shows that for a three month's supervised programme aimed at restoring the plaintiff's fitness and preparing him for a self‑managed fitness programme the cost will be $738 (12 x $24 + $36 x $6.50) and I propose to allow that sum. The total under this head of claim is therefore $1,738.

Loss of earning capacity

There was no claim for past loss of earning capacity, because on the plaintiff's view of things it has not been productive of loss. There is a significant claim for the future, put by the plaintiff's counsel at $75,000 (adopting a schedule of his instructing solicitors). I am satisfied that the evidence discloses that the plaintiff has sustained a loss of earning capacity. I accept the evidence of himself and his wife that he has slowed down and is now only barely coping. I accept the evidence of Mr Watson that the plaintiff's driving duties will continue to exacerbate his problems. And I accept the unchallenged evidence of Mr McLean that the plaintiff's work performance has been affected by his health problems and that he is at the cusp of being asked to find alternative employment. His injuries would preclude him from returning to his trade. He faces the prospect therefore of having to find a job in sales, with little or no driving, when he is almost 50 years old.
In my opinion this will be very difficult for him and in due course it will be productive of loss. The problem is that because of the way in which the case was framed and run by the plaintiff, the quantification of that loss is beyond any proper mathematical calculation because there are too many imponderables. Additionally there was no attempt by the plaintiff to calculate his loss. I was given what is called "Plaintiff's Book of Economic Documents" (EXP 2) and basically invited to work it all out for myself – an unsatisfactory approach. No evidence was adduced from either the plaintiff or Mr McLean as to what the plaintiff's income would be if he met different variables of his present sales targets (viz, 75 per cent, 80 per cent, 90 per cent etc.). Whilst the plaintiff told me that if he achieved 90 per cent of budget he received a commission of 1½ per cent of sales, and 2 per cent if he reached budget, I was not told how that translated into income. And I was left to wonder if I infer correctly that below 90 per cent he receives no commission, only his base salary of $36,000 per annum and a $15,000 per annum vehicle allowance (see T19). I was not told either whether the vehicle allowance was a full cost recovery or only part ie, whether there was any profit in it or he ran his own vehicle at a loss. Doing the best I can, I think it more probable than not that the plaintiff will have to retire early, at about 60 years of age and that his loss will be his base salary of $36,000 gross per annum, the after tax amount being $28,820. From this the Medicare levy of 1½ per cent of taxable income must be deducted. This is $540, leaving a net figure of $28,280 or $543.85 per week.
The 6 per cent multiplier for the 15 years to the plaintiff's pre‑accident retirement age of 65 is 522 and for the 10 years to age 60 is 395, a difference of 127 which multiplied out against the weekly salary of $543.85 results in a sum of $69,068.95. This calculated loss does not take into account a number of contingencies to which I have given anxious consideration. For the plaintiff it must be said that this calculation of his future economic loss makes no allowance for lost commission or the loss of a chance to earn commission. A countervailing consideration however is that it makes no allowance for there being any retained earning capacity as a non‑travelling salesman at say a (static) display centre or the like. In my opinion these contingencies balance out and his award under this head will be $69,068.95.

Summary

General damages  $23,300.00
Special damages  $591.00
Future medical (etc) expenses  $1,738.00
Loss of earning capacity  $69,068.95
$94,698.60