Mennega v Lane Cove Fitness Centre

[1999] NSWSC 734

CITATION:	Mennega v Lane Cove Fitness Centre [1999] NSWSC 734
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	20542/95
HEARING DATE(S):	4-5 March 1999
JUDGMENT DATE:	6 July 1999
PARTIES :	John Martin Mennega (Plaintiff) Tony Foskett and Stuart Knight t/as Lane Cove Fitness Centre (First Defendant) Ed Jozowski t/as Kolissal Fitness Systems (Second Defendant) Stewart Haig Roberts (Third Defendant)
JUDGMENT OF:	Dowd J

COUNSEL :	Mr C.T. Barry QC (Plaintiff) Mr S.C. Finnane (1st & 2nd Defendants)
SOLICITORS:	Schrader & Associates (Plaintiff) P.W. Turk & Associates (1st & 2nd Defendants)
CATCHWORDS:	Assessment of damages; High income earner; Economic loss
DECISION:	Verdict for the Plaintiff against 1st and 2nd Defendants.; Cross action stood out of list.; Action against 3rd Defendant stood out of list.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DOWD J
6 July 1999
20542/1995

MENNEGA v LANE COVE FITNESS CENTRE

REASONS FOR JUDGMENT

1   The plaintiff, John Martin Mennega, brought this action against the first, second and third defendants, in respect of injuries the plaintiff sustained whilst operating gymnasium equipment at the fitness centre operated by first defendant. Breach of duty of care was admitted by the first and second defendants.

2   The first and second defendants as cross-claimants commenced an action against the third defendant as cross-defendant in contract and tort, seeking indemnity. That cross-claim was stood over by me at the commencement of the hearing and was not the subject of these proceedings.

3   The plaintiff claims damages for the injuries and his loss of earning capacity. The first and second defendants conceded that the plaintiff suffered the injuries and that he had suffered damage as a result of the injuries sustained. However, the extent of damages was at issue.

The Facts

4   At about 6.30 pm on 6 January 1995 the plaintiff, during the course of his exercise session at the fitness centre, was operating a piece of equipment, known as a “Hi-Lo pulley weight training Machine (“Hi-Lo Machine”), by pulling down a handle which caused a weight in the equipment to rise via a cable and pulley. As the plaintiff was using the equipment the Hi-Lo Machine came away from the floor and fell on top of the plaintiff, causing severe injury to the plaintiff’s back, head and shoulders.

5   At the time the machine came away from the floor the plaintiff, who was standing in front facing the machine, was moving about 80 to 100 kg in weight. The plaintiff described the accident as being very sudden and of the two big bars on the outside of the machine catching his shoulder and squashing him to the ground. The two thin bars which the individual weights move up and down, hit the plaintiff on the head. The plaintiff was not rendered unconscious but was unable to move, obliging other people in the gymnasium to have to lift the machine off him in order that he could be freed.

6   The plaintiff, who was in severe pain from the lower back injury as well as the injuries to his right shoulder and collar bone, was taken to Royal North Shore Hospital and admitted to the orthopaedic ward where he remained for some 13 days until discharge on 19 January 1995. The plaintiff then returned home where he was looked after by his wife, being unable to routinely look after himself.

The Plaintiff’s Background

7   The plaintiff, who was born in Holland, is now about 52 years old. He is married with a daughter, aged nine years, and currently resides at Lane Cove, although not with his wife. He is an Australian citizen, having migrated with his family in 1952 at the age of four. The plaintiff is currently employed as Head of Client Services for IPAC Portfolio Management.

8   The relationship between the plaintiff and his wife has not however been without its problems, and in fact at one stage around 1993 the plaintiff moved out of the matrimonial home and lived for a period of three days a week at an apartment in the city close to the gym where he used to train.

9   The plaintiff attended Kempsey High School, passing the Leaving Certificate in the mid 60s and then attended the University of NSW where he graduated with a Bachelor of Engineering in 1971. The plaintiff thereafter completed a post graduate Diploma in Industrial Engineering, an MBA from the University of NSW and a Diploma in Investment and Financial Management from the Securities Institute of Australia.

10   The plaintiff has spent most of his life working in the financial field. His first graduate employment was as a professional engineer at Overseas Telecommunications, where he worked from January 1972 to March 1975. From March 1975, whilst doing his MBA, the plaintiff worked for Citibank, initially as Operations Manager and then as Credit Control Manager. As Credit Control Manager the plaintiff had responsibility for introducing mechanisms into Australia such as credit scoring and other methodologies for managing consumer credit.

11   The plaintiff worked at Citibank for some four years, leaving in August 1979 to commence employment with Morrow Australia, initially to develop the superannuation business of the company and then as Director of Marketing. The plaintiff’s job involved promoting the company’s ability to manage funds, fiducially as well as for investment purposes. After working at Morrow for some time the plaintiff decided that he wanted to work in a business where he had a propriety interest and to that end he, along with a number of other persons, established a company called Eastcorp Pty Limited. Eastcorp was primarily involved in managing the financial investments and superannuation of clients. Eastcorp was also involved in providing life and business insurance and finance broking. The company grew in its early years employing 45 people and having around 200 licensed dealer representatives, and in May 1984 the plaintiff became Managing Director of Eastcorp Pty Ltd.

12   Eastcorp Pty Limited was appointed by the Australian Investment Planners Association to be the company which was to provide the educational resources for persons wishing to obtain dealer representative licences. The plaintiff consequently began to lecture those seeking to acquire those qualifications and the plaintiff became a principal lecturer at the Securities Institute. In addition to teaching the course the plaintiff also wrote some of the materials. The plaintiff during this period was also involved in the management of a business that his wife operated, called the Pine Street Kindergarten.

13   The plaintiff was Managing Director of Eastcorp throughout the 80s until about 1989 when the company ceased to operate due to difficulties, including the October 1987 stock market crash. Once the company ceased to operate, part of its activities were transferred to another company called Monitor Money, a subsidiary of Lendlease.

14   In about June 1989 the plaintiff commenced employment with Monitor Money on a consultancy basis on a base salary of $150,000.00. The plaintiff stayed at Monitor Money for about two years until he was head-hunted to commence employment with AMP Investments Australia as the Head of Wholesale and Head of Retail. The plaintiff was paid a base salary of $170,000.00 and received a range of other incentives such as a significant bonus potential, superannuation, complementary carparking, life and accident insurance, health benefits as well as other small ancillary benefits. The plaintiff was employed at AMP from April 1989 to October 1994. He was made redundant approximately three months before the accident.

15   During the time the plaintiff was at AMP his role had expanded to include a greater responsibility for product design and input and he became responsible for full support of AMP Australia. Prior to being retrenched from AMP the plaintiff received a bonus in July of $31,450.00 on a base salary of $198,000.00, totalling about $230,000.00. In addition to that amount the plaintiff also received non-cash benefits by way of superannuation of about $25,000.00, as well as carparking, discounts on insurance and medical benefits.

16   In the period before being retrenched the plaintiff had been involved in product design and manufacture, requiring him to provide investment details to enable products to be appropriately positioned and costed. He had about thirty five employees under his supervision and control. However, with the restructuring of the organisation this job was no longer required. On redundancy the plaintiff was paid a further amount of $59,228.00 called an eligible termination payment.

17   Between leaving AMP in October 1994 and the accident on 6 January 1995 the plaintiff had been speaking to a number of search agencies, but was advised to leave his C.V. with them until January because it was a quiet time of the year and there was nothing much happening. The plaintiff had written to about a half a dozen firms aside from engaging the help of a recruitment agent, and was seeking a position with a package of about $250,000.00. Had the accident not occurred the plaintiff was of the opinion that he would have had quite an good opportunity of finding work.

18   On 21 August 1995 the plaintiff did return to work obtaining a short term position as Head of Business Services at the Colonial State Bank, an appointment that was Sydney based. He commenced on a salary of about $180,000.00 which included bonuses, superannuation and insurance perks. Soon after his appointment the plaintiff was promoted and had an increase in salary of $30,000.00. In August 1996 the plaintiff was paid a bonus of $15,000.00. The plaintiff remained with the State Bank until December 1996 when the position he held ceased to exist due to a restructuring.

19   After retrenchment by the Colonial State Bank the plaintiff by chance renewed his association with Mr Morrow, joining his operation in May 1997 as a consultant. He was not paid a fee until about August when he was paid a monthly consulting fee of $6,250.00, an amount considerably less than his prior earnings. The plaintiff consulted for Mr Morrow until November 1997, obtaining employment thereafter with IPAC Financial Services Limited (“IPAC”), a financial services organisation that provides financial advice and money management services.

20   The plaintiff now has been working for IPAC in Sydney since 1 December 1997 for part of the company known as IPAC Portfolio Management, where he is responsible for the company’s large institutional and corporate clients. The plaintiff is also chairman of the company’s management committee, and a member of the corporate HR committee.

21   The plaintiff’s salary when he first commenced employment with IPAC was $165,000.00 which was increased to $180,000.00 from 1 July 1998. The plaintiff has in addition been paid the amount of $31,759.00 by way of bonus.

22   Prior to the accident the plaintiff’s work had required him travel both locally and interstate. His evidence was that whilst working at AMP over a period of 4 years he went on one overseas trip and about 30 to 40 percent of his time was spent travelling interstate.

23   Since the accident however the plaintiff has found such travel difficult, and has chosen to pursue employment where there is little or no requirement to travel. The plaintiff says that he has a lot of difficulty sitting and standing in an upright position, including travelling in the car and on planes, causing him to have to take medication to deal with the pain.

24   The plaintiff gave further evidence that such back pain also affects his concentration and often finds the need to get up and walk around or leave a business meeting if the pain becomes too intense. Over the last couple of months the plaintiff has had to take off approximately one day a month because of the pain.

25   The plaintiff gave evidence that he has also had other restrictions since the accident, such as trouble with carrying his daughter, or carrying anything heavy.

26   At the time of the accident the plaintiff was a very fitness conscious individual. He exercised at the gymnasium five or six times a week and swam, cycled, ran or rowed for 45 minutes a day every day. His evidence was that he had always loved exercising and sport and believed that it was important to be healthy.

27   The plaintiff has now had to modify these activities. He now does exercise to minimise the effect of the back injury. The plaintiff, since the accident, has been able to get back to doing some walking, although he has not been able to jog. He has been doing some swimming, although he can only now swim for a shortened period. An attempt to cycle caused him pain.

28   The plaintiff had also attempted to go skiing on a number of occasions, a sport in which he was once an expert, but found it difficult. In 1996 he took the family down to Thredbo for three days but was unable to ski because it hurt too much when he tried to put the skis on. In 1997 he went down again to Thredbo after purchasing a new set of skis but told the Court he still had the same problems. His evidence was that on the first day he could only ski for about three hours and on the second day he could only ski for about an hour in the morning.

29   As to exercising at the gymnasium his evidence was that he does regular stretching exercises and will use the gymnasium sporadically. He is unable to lift the amount of weights he once used to prior to the accident. He has not resumed rowing either on the gym machine or on the water, an activity he once used to do regularly, since the accident. He is currently a member of a gymnasium located in close proximity to his work.

30   The plaintiff has had chondromalacia patellae of both the right and left knees for eleven years. He has not had any serious operation. The plaintiff has no known allergies, took no medication, did not smoke and only occasionally took alcohol.

The injuries

31   On his admission to the Royal North Shore Hospital the plaintiff came under the care of Dr Stephen Ruff, Orthopaedic Surgeon. X-rays taken of the plaintiff’s back and shoulder on the day of the accident revealed a compression fracture of two lumbar vertebrae and injury to the rotator cuff, trapezius and rhomboid. The plaintiff had also sustained an abrasion to his forehead, a blow to the right side of his jaw and injury to his ribs. The plaintiff was treated with pethadine injections for nearly a week and was sedated for the pain. The plaintiff was unable to drink liquids for four days and was on a drip for five days after his admission.

32   The plaintiff initially required physiotherapy and the use of a standing frame. Toward the end of his stay the plaintiff was able to move around by using a walking frame and was subsequently fitted with a talus brace, that is a brace which goes over his shoulders and around his lumbar region.

33   On discharge the plaintiff, although mobile, was required to continue to wear the talus brace, and was on bed rest at home resting for approximately 22 hours per day. He was, after some time, gradually able to walk within the confines of his home, although initially with great difficulty. The plaintiff was confined to his house for about one month.

34   The plaintiff’s wife gave evidence that for the first few months until the brace came off, he heavily relied on her helping him get out of bed, get dressed, go down to the kitchen and prepare breakfast, and shower and dress him. This routine would commence at 8.00 am and continue until about 10.00 when he would lie on the floor for the rest of the day and watch videos. She would also prepare his lunch and dinner and assist him with going to the bathroom. In addition to this routine she would also take him to medical appointments, and estimated that she was spending about 38 hours a week looking after him. By the time the plaintiff had resumed employment in August 1995, the plaintiff’s wife was spending about two hours a week caring for him.

35   By mid-February the plaintiff had gradually begun to increase his activities but continued to wear the brace for some three and a half months thereafter. The plaintiff was also supported with medication for pain relief and attended physiotherapy as an outpatient at the hospital. After discharge as an outpatient the plaintiff attended physiotherapy at the Hunters Hill Physiotherapy & Rehabilitation Centre where he was treated by Helen Care.

36   When the plaintiff was first assessed by Helen Care on 22 May 1995 the plaintiff, who complained of lack of lumbar mobility, difficulty in changing positions and pain following periods of sitting, appeared to be experiencing significant limitation of lumbar extension and right side flexion. He was given a home program of mobility exercises, Ms Care opining that manual therapy was inappropriate at that point.

37   On 5 July 1995 the plaintiff, who continued to complain of considerable pain at the site of his injury, in particular when sitting or driving for a prolonged period, was examined by his G.P., Dr Timothy David. Dr David in his report of 10 July 1995 opined that there was clearly an ongoing need for treatment for the injuries, and that such treatment should be in the form of physiotherapy and pain relief medication. Dr David was unable to give a prognosis of the future effect of the plaintiff’s injuries.

38   On 24 November 1995 the plaintiff was examined by a Consultant Surgeon, Dr David Wilcox, who observed the plaintiff to have discomfort when sitting and rising, and found on examination pronounced knuckle kyphosis at L1 and tenderness over L1 and L4, as well as a flattened lumbar lordotic curve of the thoraco lumbar spine. Dr Wilcox was of the view that surgery was not a viable option at this stage and that the plaintiff should continue attending physiotherapy. According to Dr Wilcox, although the pain will never completely subside the plaintiff should find that the activities he undertakes will become less uncomfortable over the next 2 to 3 years.

39   On 5 March 1996, some thirteen months after the accident, the plaintiff was reviewed by Dr Ruff continuing to complain of back pain, hamstring tightness and right shoulder pain. Examination of the plaintiff revealed some tenderness in the axial skeleton and marked retro-patellar tenderness in the left knee. The plaintiff had a full range of motion at his shoulders and his peripheral perfusion was normal. According to Dr Ruff, although the plaintiff had made some further improvement, his progress remained only satisfactory. Dr Ruff anticipated a gradual return to full function with minimal long term disability.

40   On 28 January 1997 the plaintiff was examined by Dr Stephen Buckley, Consultant in Rehabilitation Medicine, at the request of his solicitors. Dr Buckley’s examination revealed that the compression fractures of the two lumbar vertebra(L1 and L4) though fully healed, caused the plaintiff minor mechanical disadvantage and back pain. Dr Buckley opined that the plaintiff should undergo six physiotherapy treatments every second year for the management of back pain, and should consult an orthopaedic surgeon once every five years for the management of any severe exacerbations. Dr Buckley considered the plaintiff fit to work in the financial industry without any restriction, although an addition of one week of sick leave may be required every second year to take account of exacerbations of back pain.

41   On 8 May 1997 the plaintiff, continuing to complain of pain in his back, right shoulder and in his knees, was examined by Dr Scougall, Orthopaedic Surgeon. Dr Scougall’s examination of the plaintiff revealed restricted back movement and some tenderness over all spinous processes from the lower thoracic area to the sacrum. As to the plaintiff’s prognosis Dr Scougall found in May 1997:

“He has significant impairment of function from his back injury and that impairment is now permanent. He will always have back pain, as outlined in my report, causing him disability. This will permanently limit his work and recreational activities and his ability to maintain his house. His back pain is always aggravated by travel in cars and aeroplanes, and the pain so caused, not only limits his ability to be involved in travel, but disturbs his concentration at the meetings that he is required to go to. It is to his credit and a tribute to his work ethic, that he has been able to go to work, in spite of the very significant disability that he has.”

42   Dr Scougall commented further in a letter of 20 June 1997, in respect of the likelihood of any form of degenerative changes occurring, that although the plaintiff’s right shoulder and knee will not be prone to any such degenerative changes, the plaintiff’s spine will be prone to increased degenerative changes. Dr Scougall opined that the plaintiff will experience difficulties in coping with activities such as bending and lifting, and travelling in cars and aeroplanes, and that the increasing back disability will pose increasing problems with his ability to work.

43   When Dr Buckley reviewed the plaintiff on 6 January 1998 he had found little change in the plaintiff’s condition from that of the previous twelve months. Examination of the plaintiff revealed prominent posterior vertebral process at the upper lumbar level, which was tender, and lateral rotation causing pain. Dr Buckley opined that the plaintiff was markedly limited in his ability to travel either by car or by aeroplane and that his work prospects are altered negatively by his fractures.

44   Dr Scougall also came to the same conclusion, that there had been no fundamental change in the plaintiff’s underlying condition, when he examined the plaintiff on 6 July 1998. As to the plaintiff’s prognosis Dr Scougall opined that the plaintiff’s present symptoms and disabilities remained as outlined in his report of 20 June 1997, being that the plaintiff will experience difficulties in coping with various activities, including travel, and that his back problems are likely to cause him difficulties with his working ability.

45   The plaintiff continues to experience sensitivity at the site of the L1 and L4 fracture and has ongoing pain, weakness and restriction of movement throughout his lumbar spine. The plaintiff is unable to bend, lift and carry without distress, and is unable to sit, stand or walk for protracted periods without discomfort. As a result of the pain and discomfort the plaintiff said that he experiences feelings of hopelessness.

46   Dr. Bodel, Orthopaedic Surgeon, after examining the plaintiff, found that the plaintiff had been able to return to daily workouts, but had not been able to return to his pre-injury level of condition. He was of the view that the plaintiff’s condition had stabilised, but he had ongoing pain, and therefore the plaintiff’s ability to lead a normal life had been quite compromised. Surgery was not indicated. Dr. Bodel opined that the plaintiff would require analgesic and anti-inflammatory medication to optimise his back function, and that he should continue with his exercise program.

47   On behalf of the plaintiff it was submitted that he as a result of the accident suffers from a significant pain disorder associated with psychological symptoms as well as insomnia, depression and anxiety. It is also claimed that the plaintiff’s ability to participate in pre-accident work has decreased, as have his social, sexual, domestic and recreational activities.

48   The plaintiff was psychologically examined by Dr. David Isaacs, a medical practitioner qualified in examining depression and other psychiatric conditions, who found that the plaintiff had suffered a reactive depression in the form of a modified grief reaction as a result of the accident. This depression was aggravated by existing life stresses. He was of the opinion that the depression would resolve spontaneously without residual disability, but that that resolution could be accelerated by counselling and stress management techniques.

49   Malcolm Dent, Consultant Psychiatrist, also examined him in August 1995, shortly after his return to employment. He found that the plaintiff suffered considerable pain from his disabilities but found no evidence of a post traumatic stress disorder, but that he has associated psychological symptoms as a consequence of the significant pain disorder from which he suffers, related to the physical injury that he sustained. This has resulted in an adjustment disorder with mixed emotional features, and some social and working inhibition. In a later report on 28 January 1998 Dr. Dent adhered to that diagnosis, noting that the plaintiff continued to suffer from symptoms of chronic pain disorder, and expressed the view that treatment for pain is now available, such as through multidisciplinary pain management, particularly at Royal North Shore Hospital, to relieve the effect of that disorder.

50   On behalf of the defendant Dr. William Rowe, a medico-legal consultant, examined the plaintiff and was of the view that the plaintiff did not have any psychiatric condition, and that he had had a number of problems before the accident that he could cope with, without outside help. He found that the plaintiff had improved considerably since obtaining his present job, and was of the view that it was the underlying organic damage to the plaintiff’s back which was causing any problems which he now suffered.

51   There is not a large degree of difference between the various medical experts. I accept the evidence of Dr. Ruff and Dr. Wilcox and Dr. Scougall as to the plaintiff’s medical condition, and I accept Dr. Stephen Buckley as to not only his medical conclusion but the need for physiotherapy treatment. I also accept Dr. Isaacs and Dr. Dent in their assessment of his mental condition. That is not to say that that is necessarily in conflict with Dr. William Rowe, but I prefer the evidence of Doctors Dent and Isaacs.

General damages

52   The plaintiff suffered a very painful and shocking physical injury as a result of the negligence of the first and second defendants, he then being an extremely fit, healthy and agile man of his years. The pain that he suffered, both in the bruising of his ribs, the necessity to get around with and without a back brace, the loss of sleep, and the pain that he suffered in the initial weeks in terms of jolting and movement in car trips, were extremely painful. The laceration to the head resolved itself fairly promptly, and the right shoulder took a few more weeks to settle down, and continued to be painful to a lesser extent over a period of eight or nine months. The bruising to his ribs resolved within four or five weeks, leaving the problem of the injury to his back as an ongoing problem.

53   The plaintiff’s disabilities prevented him carrying out his normal life activities, and he required considerable assistance, during considerable pain, to perform elementary things such as getting up from the floor and getting down to the floor, where he spent much of his time during the rehabilitation period. It took until August of 1995 for him to be fully independent in terms of getting up and down, and other movements. He has been restricted from the pleasure of mowing his lawn, and carrying his daughter up the stairs, and moving objects around his house, it being a four-storey townhouse. The injury to his lumbar spine is an ongoing and painful process, requiring medication to reduce that pain.

54   The plaintiff was for a long time prevented from carrying around his young daughter, and was restricted in carrying out play and other activities with her, and was unable to do the shopping.

55   The plaintiff has made a remarkable recovery, particularly because of his fitness program, and his continuation with a fitness program will allow him to continue a higher degree of fitness than another person less motivated to improve and maintain his physical fitness. I do consider that the plaintiff was such as would have kept his physical fitness and fitness program in any event.

56   The plaintiff now suffers recurring pain in the lumbar region, particularly preventing him from sitting and driving for long periods, and in aeroplane travel, and is now considerably restricted in his sporting activities.

57   The plaintiff has made, particularly because of his physical fitness and his continuation with a fitness program, a remarkable recovery from his injuries.

58   Pain is fairly difficult to assess, even with medical practitioners assessing complaints as to pain, since there is a tendency for an assessing doctor to have to accept the truthfulness of the plaintiff. The plaintiff is believed by most of those doctors who have assessed him, and clearly he has made a genuine attempt to regain his fitness, which is to his credit. However, the plaintiff and his wife have both somewhat exaggerated the number of hours of assistance given to the plaintiff after the initial period. I will deal with this under the heading below dealing with gratuitous domestic assistance. I do however accept generally that the plaintiff has been truthful, and that he in fact is suffering, from time to time, considerable pain which requires management.

59   It is submitted on behalf of the plaintiff that the claim is worth some $120,000, and on behalf of the first and second defendants that the claim is worth between $60,000 and $80,000. I think that the extent of restriction of life style and physical fitness enjoyment and capacity to carry out the plaintiff’s work has been significantly impaired. This is very difficult for a person who has gone to more trouble than most of the community in keeping fit. I also have taken into account that although I do not think the plaintiff has clinical depression, the plaintiff does have an adjustment disorder with some mixed emotional features, and some social and work inhibition. This has made it, and will make it, more difficult for him to cope with the process of ageing, and a marriage which had, prior to the injuries, a shaky and difficult past. The plaintiff’s sex life, both in past and present, is significantly impaired.

60   I consider that the extent of the existing pain and suffering and loss of amenity of life, and the likely future loss, is of some magnitude, considerably more than that contended by the first and second defendants, and I assess the plaintiff’s general damages at $110,000, and I allow that figure.

Interest on Damages

61   I consider that the plaintiff is entitled to the interest on those general damages, and that a proper basis for assessing the shorter period of greater pain and discomfort in the past, as against the longer period of the likely future, considerably less pain and discomfort, that it is proper to attribute 50% to the past accruing evenly, and 50% to the future. I accordingly assess interest on damages at $55,000 times 4% per annum, times 50% times four and a half years, making the sum of $4,950.00, which I allow.

Out of Pocket Expenses

62   The parties have agreed on calculation and entitlement at $4,330.00, which sum I allow, reserving to the parties to add to this figure any further sum which may have been incurred.

Past Gratuitous Domestic Assistance

63   The first and second defendants concede the need for domestic care from the time of the plaintiff’s release from hospital until August 1995. As I previously indicated, I do not consider that the number of hours contended is a proper reflection of the time spent by the plaintiff’s wife. I believe both the plaintiff and the plaintiff’s wife have exaggerated to the extent that much of the duties contended would be in fairly short time frames. However, the extent of the claim is not disputed until 1 August 1995, and I therefore allow the claim from 19 January 1995 to 6 April 1995 at $6,270.00; for the period from 8 April 1995 to 1 July 1995 at $5,400.00, and the sum of $1,500.00 for the period from 2 July 1995 to 1 August 1995. I do not consider that the extent of the domestic assistance claimed from that time until the time of the hearing is two hours per week, but that assistance would be needed generally of some two hours per fortnight for heavier cleaning and lifting, and I therefore allow 198 weeks at one hour per week, and I allow the sum of $2,970.00 to date of hearing. The total past claim is therefore $16,140.

Future Domestic Assistance

64   I consider that the plaintiff will have an ongoing need for domestic assistance for heavier cleaning and housework of the order of two hours per fortnight, and I therefore allow one hour per week at a multiplier of 970.6 less 15% for vicissitudes, and I therefore allow the sum of $14,559.00.

Physiotherapy

65   I accept the uncontested evidence of Dr. Buckley that the plaintiff will need six treatments bi-annually at $55.00 and thereafter at $45.00, and I calculate this at the multiplier of 970.6 less 15% vicissitudes at $2,530.00, which I allow.

Future Medical Care

I accept the evidence of Dr. Stephen Buckley as to need and cost of a general practitioner and orthopaedic surgeon, which on the appropriate multiplier less a discount for vicissitudes, I allow at $750.00.

Pain Management

66   Based on the evidence of Dr. Dent, and accepting the nature of the plaintiff, I consider that it is likely that the plaintiff will not avail himself of the full psychological pain management treatment, but will have a need for some part of that treatment, and I therefore allow the sum of $4, 000.00.

Gymnasium Expenses

67   I consider that the plaintiff’s lifestyle is such that he would in any event have continued his gymnasium expenses for the likely period that he would need them post-accident, therefore I do not allow any sum for this.

Future Sundry Expenses

68   The claim to cover future medications, back braces, supports and increased premiums is claimed at $5,000.00. In my view this is a proper assessment of likely needs, and I therefore allow the sum of $5,000.00.

Past Wage Loss Superannuation

69   I have left till last this most difficult area of these proceedings. As submitted by the first and second defendants, the plaintiff did not call specific evidence from the various recruitment agencies who might have given evidence as to the available market, and an assessment of the plaintiff’s worth. The wage that the plaintiff was earning prior to his retrenchment is some evidence of his worth, but the onus is on the plaintiff to show the continuation of that worth, since prima facie the wage that a person earns may not necessarily be what he is worth; it is merely evidence of it.

70   I do consider that the plaintiff would have gained employment prior to his employment with the State Bank, although I do not think, in the fairly leisurely way in which the plaintiff was proceeding towards that employment, at what is conceded to be a quiet time of the year, that he would necessarily have commenced employment by 1st March, but consider that 1st April would be a more appropriate starting date.

71   I consider that the plaintiff’s history of employment since the accident was not entirely referable to that accident, and underlines the fragile nature of the plaintiff’s industry in terms of the certainty of continuous employment at a precise wage.

72 I accept the plaintiff’s submission in relying on Medlin v. SGIO (1995) 182 CLR1:

“A plaintiff is to be compensated not for loss of wages, but for the loss of an asset, namely a capacity to earn income.”

73   I accept the submission on behalf of the plaintiff that there has been a diminution in earning capacity, as a first step, and that that diminution is productive of financial loss.

74   I also accept that the plaintiff’s ongoing physical restrictions impair his capacity to attend lengthy meetings and sitting for lengthy periods, and the difficulties that will come from the need to visit people on a face to face basis, and oblige him to travel considerable distances. There is in my view an impaired capacity to bring in business.

75   I also accept the submission of the plaintiff that precise quantification of loss of earning capacity is difficult, and that precision is not possible.

76   The plaintiff’s calculations, which are agreed as to mathematics only as to past wage loss, are based on a loss of $247,000 earning capacity, less $150,000 gross capacity, multiplied by 51.5%. The plaintiff’s calculations come to $210,315, to which I add a further $8,000 from date of hearing to judgment, making in all a figure which I round up to $218.000.

77   I consider that a proper figure for the plaintiff’s earning capacity, based on the examination of the evidence and his actual work history, and taking into account the salary from which he was retrenched, that a proper earning capacity is the sum of $220,000, and that that should commence from the 1st April 1995. I accept the mathematics of the amounts to be deducted from that gross salary, and dorect the parties to carry out the calculations thereon. I consider that the submission of the plaintiff as to interest on past wage loss on which calculation has been agreed, is a correct basis for the calculation of interest, and I direct the parties to submit calculations as to the amounts to be allowed, that is accepting the calculations except for the gross figure.

78   I consider that the period of employment with Mr. Morrow is part of the evidence I have taken into account in assessing the plaintiff’s capacity to earn income.

Future Wage Loss Superannuation

79   For reasons I have outlined, I consider that the plaintiff has an income earning capacity which is a reduction on his former pre-accident earning capacity. The restrictions in his movements through pain and difficulty in travel will inevitably result in a reduction in income earning capacity, and consequent superannuation. It is very difficult, with such a very high income in a market where the plaintiff is handling amounts of money in the nature of telephone numbers, to precisely calculate the loss. His inability to travel as much will reduce his value as an employee, and reduce his earning capacity.

80   I do however consider that there is a clear loss of income and superannuation entitlements, which I calculate at $30,000.00 per annum, which when multiplied by 51.3% by the multiplier to age of retirement, 598.3 times 85% to take into account vicissitudes, I calculate that sum at $150,323.000.

81   Accordingly I allow the following amounts and make the following orders:-

82   1. Verdict for the plaintiff against the first and second defendants.

83   2. The cross action is stood out of the list.

84   3. The action against the third defendant is also stood out of the list.

85   I allow general damages of $110.00.00. I allow interest on general damages of $4,950.00. I allow out of pocket expenses of $4,330.00. I allow past gratuitous domestic assistance of $16,140.00. I allow future domestic assistance of $14,559.00. I allow physiotherapy of $2,530.00. I allow future medical practitioner expenses of $750.00. I allow future pain management of $4,000.00. I allow future sundry expenses of $5,000.00. I allow a sum for past wage loss and interest thereon to be calculated by the parties. I allow future wage loss of $150,373.00. I grant the parties liberty to apply to complete any calculations and to file formal orders.

86   I reserve costs.

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