O'Dea v Jones
[2013] VCC 1208
•16 September 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-11-00985
| JAMES O’DEA | Plaintiff |
| v | |
| MATT JONES | Defendant |
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JUDGE: | HIS HONOR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 September 2013 | |
DATE OF JUDGMENT: | 16 September 2013 | |
CASE MAY BE CITED AS: | O’Dea v Jones | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1208 | |
REASONS FOR JUDGMENT
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Subject: NEGLIGENCE
Catchwords: Negligence – kiteboarding harness defective – leg strap loosened – plaintiff attempted to steady himself – plaintiff holding onto a bar connected to a kiteboarding kite – movement of the bar caused the kite to catch wind – plaintiff launched off the ground – collision feet first into hard sand – contributory negligence – failure by the defendant to call critical witness
Legislation Cited: Wrongs Act 1958, PART X
Cases Cited: Jones v Dunkel (1959) 101 CLR 298
Judgment: Judgment for the plaintiff in the sum of $110,035 and costs.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Tsalamandris | Adviceline Injury Lawyers |
| For the Defendant | The defendant appeared in person | - |
HIS HONOUR:
Introduction
1 By a Writ filed 9 March 2011, the plaintiff claimed that as a consequence of the negligence of the defendant, he suffered injury, loss and damage.
2 The Statement of Claim endorsed on the Writ pleads a number of causes of action. Ms Tsalamandris, who appeared for the plaintiff, informed me at the commencement of the trial that the only cause of action which the plaintiff intended to pursue was the claim in negligence.
3 The defendant appeared in person. He filed a Defence dated 15 March 2013. It does not conform to conventional pleading practice. However, in the course of exchanges with the defendant, it became plain that he denied the cause of injury, loss and damage suffered by the plaintiff was a result of any negligence on his part, or on the part of his employee. I assumed from the exchanges I had with the defendant that he alleged that the plaintiff was guilty of contributory negligence.
The evidence
4 The plaintiff was born on 14 January 1982. He is now 31 years of age. He is a married man with one child. He is employed by the manufacturer of orthopaedic hardware. He is involved in sales of those orthopaedic products.
5 The plaintiff was given a Christmas present in 2007 of a voucher to have some kiteboarding lessons to be provided by the defendant. He had previously had four lessons in kiteboarding some years before 2008.
6 The plaintiff telephoned the defendant some time in January 2008. He informed the defendant that he had a voucher to have kiteboarding lessons. He arranged to have a kiteboarding lesson on 20 January 2008. During that conversation, he told the defendant that he had previously had four lessons in kiteboarding.
7 The defendant gave evidence that the plaintiff also said that he wanted “a refresher” in kiteboarding, which gave the defendant the impression that the plaintiff had some moderate level of experience. The plaintiff denied that he said that to the defendant.
8 On arrival at Western beach, St Kilda, where the defendant operated his kiteboarding business, the plaintiff again spoke to the defendant. The conversation on that occasion was similar to the conversation they had over the telephone.
9 The defendant employed a young woman named Natalie. He said that Natalie was an experienced kiteboarder, and was assigned to give a lesson to the plaintiff.
10 After the plaintiff was introduced to Natalie, he had a short conversation with her. She asked him whether he had any experience in kiteboarding. He told her that he had previously had four lessons.
11 I should pause here to observe that the evidence presented by both the plaintiff and the defendant regarding the telephone conversation, and the conversation at Western Beach, gave me the impression they were short, and not very detailed conversations.
12 Natalie took the plaintiff onto the beach. She demonstrated the use of a smaller kite, without the use of a harness, to the plaintiff. Natalie then took the plaintiff to a point where he was shown a harness. A harness and bar was tendered in evidence.[1] How it is fixed over the body was demonstrated by the defendant from the body of the Court.
[1]Exhibit 1
13 I should again pause to describe the harness. The defendant gave a very apt description that the harness is like a pair of shorts. The harness comprises padded material which is fixed over the buttocks and wraps around the hips. The padded material sits over the buttocks and just under the lower back. The padded material around the hips formed a shape like wings. There is a large Velcro strap which is fixed across the lower abdomen so that the harness is fitted tightly. There are two straps that emerge from under the legs, and then go out across the top of the left thigh and the right thigh just under the groins. The straps are then fixed into a buckle, and can be tightened by pulling them through the buckle.
14 The plaintiff said that the harness was sitting on a concreted area. He stepped into the harness and fixed it around his body by the use of the Velcro strap and the leg straps. The plaintiff could not remember whether he did that alone or had some assistance from Natalie. The defendant said that he observed the plaintiff fix the harness around his body in the way described by the plaintiff.
15 The plaintiff then accompanied Natalie onto the beach. A kite was laid out on the sand. Lines, which were attached to the kite, were also laid out. There were four lines of about 20 metres in length. The lines attached to a bar. The bar attached to the front central buckle of the harness so that when the kite was launched and took wind, the kiteboarder could operate the kite by manipulating the bar. The bar would be at about neck height and within reach of the kiteboarder.
16 The plaintiff said that he had his back to the water, as did Natalie, when Natalie launched the kite. It was attached to her harness. She raised the kite to 12 o’clock, which the defendant described as the neutral position. The defendant said that in the neutral position, the kite does not catch any wind. In that position, Natalie transferred the kite to the plaintiff’s harness.
17 It was moments after the transfer had occurred that the plaintiff said he felt tension from the kite, through the lines, the bar and onto his harness. It was at that moment that he felt the strap over his right thigh loosen, to such an extent, that he had to steady himself on his left leg. It would appear that the plaintiff was holding onto the bar at that moment. The loosening of the strap and the steadying on his left leg gave me the impression that the plaintiff was out of balance. It was in the course of those movements that the plaintiff said that he did not believe he had an option to let go of the bar. He held onto it. As a result of doing that, the kite descended from the neutral position and caught wind.
18 Immediately following the events just described, the plaintiff’s body was launched off the ground because the kite had caught wind. During those moments, Natalie called out three times “let go”. The plaintiff did not let go of the bar. He subsequently crashed feet first into hard sand, with the result that he suffered very significant injuries to both of his feet and his spine.
19 The defendant said that he witnessed all of those events. He said that he did not believe that the strap had loosened. He said that what he saw was the plaintiff pulling down on the bar, causing the kite to descend to the right. He then heard Natalie call out “let go”, observing that the plaintiff failed to let go, and that as a consequence, the ultimate event described by the plaintiff occurred.
20 The defendant gave a different version of some of the events described by the plaintiff during his evidence-in-chief. He failed to meet the requirements of fairness by putting his case to the plaintiff. I permitted him to recall the plaintiff to cross-examine him a second time.
21 The evidence of the defendant, which was of critical importance to this case, was that during the telephone conversation, he said that the plaintiff wanted to have a “refresher” in kiteboarding because he had previous experience. The plaintiff denied he said anything like that.
22 The defendant’s evidence was vague regarding the extent to which he was involved in observing the plaintiff step into the harness, and whether he made any direct observation of how the plaintiff stepped into the harness and fixed the Velcro strap and the leg straps. He said that the harness looked secure after the plaintiff had stepped into it, and had done up the velcro strap and the leg straps.
23 It was at this point in the defendant’s evidence that he produced a harness. He said the harness was a similar harness to the one used by the plaintiff on the day when the incident occurred. He demonstrated how the user would step into it and do it up. In the course of that demonstration, he pointed to a fixing point at the front of the harness to which the bar would be attached, and consequently, the lines leading to the kite.
24 The harness was given to the plaintiff while he was giving evidence. He was asked to identify it. The best the plaintiff could do was to say that it looked similar to the harness he stepped into on the day when the incident occurred.
25 The defendant gave me the impression that he was not in close proximity to the plaintiff and Natalie when the transfer of the kite occurred from Natalie’s harness to the plaintiff’s. At first he said that he was walking back to a desk. The impression I gained was that he had decided to leave Natalie to give the plaintiff a lesson. However, his attention was attracted by Natalie calling out “let go” three times, which saw him turn back, which is when he saw the plaintiff being launched off the ground and then come crashing down.
26 The plaintiff is unaware who removed the harness from him as he lay on the sand. He said he recalled having a conversation with the defendant and a lady who he believes was a medical practitioner who came to his aid. The defendant said that he removed the harness from the plaintiff either with Natalie, or with Natalie being nearby. He said that the leg straps appeared to be fixed around the plaintiff’s thighs.
27 Just before the incident occurred, the plaintiff said that he had his back to the water and was near the water’s edge. The defendant said that he observed the plaintiff and Natalie in a different position, but it seemed to me that it really did not matter very much where they were on the beach.
28 The defendant believes that the incident took about five or six seconds from the transfer of the kite from Natalie’s harness to the plaintiff’s harness. The plaintiff was unable to say how long it took, but my impression is that it occurred very quickly and possibly over a matter of seconds.
29 The defendant cross-examined the plaintiff on two occasions. On the first occasion, he tested the plaintiff’s evidence concerning the leg strap coming loose and why the plaintiff did not let go of the bar when Natalie called out “let go” three times. Whilst the plaintiff agreed that Natalie called out, he denied the suggestion that the leg strap remained in position all the time.
30 On the second occasion the defendant cross-examined the plaintiff, it was because he gave evidence-in-chief that the plaintiff told him that he wanted a lesson as a “refresher”, and that he had prior experience. Next, he gave evidence of his observations of the harness being secured around the plaintiff’s body, or where the incident occurred, and the movements of the plaintiff and Natalie on the beach.
31 The defendant’s second effort at cross-examination was restricted to those matters; however, I gave him rather more leeway than I initially intended by allowing him to again test the plaintiff’s evidence. The plaintiff’s evidence did not vary from his evidence-in-chief or from the first occasion when he was cross-examined. On both occasions, the plaintiff stated that the leg strap did loosen, and that what subsequently occurred was a result of the leg strap loosening.
32 The defendant gave a lot of evidence about his experience in kiteboarding. I do not intend to repeat it except to note that the defendant has a significant history in sporting pursuits. He described his involvement in the sport of kiteboarding. I have no doubt that he was, and probably still is, very experienced in kiteboarding and the provision of lessons to persons keen on learning the art of kiteboarding.
33 The defendant described in some detail that there are two harnesses used by kiteboarders. There is one harness, the one used by the plaintiff, which I gathered is used by persons giving lessons to learners, and there is another harness which does not have leg straps, used by more proficient kiteboarders.
34 I was interested to know the purpose of the leg straps. I asked the defendant on a number of occasions, both in his evidence and during his final address, what the purpose of the leg straps is. I understand from the defendant’s evidence that without the leg straps there can be movement of the harness to some degree. That appears to me rather obvious, because the leg straps would fix the harness in position by restraining its movement. The defendant did not seem to doubt that, and indeed, said as much.
35 The defendant produced a DVD in which he featured wearing a harness suspended from a horizontal bar, and then with a kite fixed to his harness. He said that the DVD demonstrated that the leg straps would make no difference to the stability of the kiteboarder. I viewed the DVD again, but I am not convinced that it is of much probative value, because it demonstrates how he controls a kite with a harness and bar. What the defendant can do wearing a harness and what a novice would do are obviously quite different. However, the DVD was useful to demonstrate three dimensionally the wearing of the harness and the attachment of the bar, the lines and the kite.
36 The defendant was cross-examined briefly. He said that he checked the harness used by the plaintiff visually. He then said that the plaintiff refused to have either the defendant or Natalie check it. It was not something that was put to the plaintiff, like some of the other matters I have referred to above.
37 The defendant was also cross-examined about whether he had a permit from the relevant municipal Council to operate a kiteboarding business from Western Beach. The letter of the City of Port Phillip dated 6 July 2008 says that he did not. The defendant was also cross-examined about his business activities, which I was informed were matters going to his credit rather than directly relevant to what occurred on 20 January 2008.
38 One matter of importance was that the defendant contested that the leg strap had loosened. However, this is contradicted by an affidavit the defendant swore in support of an application to set aside an interlocutory judgment entered against him. In the affidavit, the defendant stated while driving the plaintiff to The Alfred hospital, the plaintiff asked what had happened, to which the defendant replied:
“… He said he was not sure but he thought that maybe a leg strap had come off the harness.”
39 The defendant gave me the impression that he was somewhat surprised by what was put to him from his own affidavit, and somewhat reluctantly admitted that, in fact, if it was in his affidavit, the conversation must have occurred.
Witness not called
40 Natalie was not called by the defendant. He gave no evidence to explain why he did not call her. He gave some explanation during his final address which I found not only to be vague, but unsatisfactory. Essentially, he said during his final address, that Natalie had no recollection, or little recollection, of the incident, and that secondly, she was not cooperative.
41 It was only as a result of me pressing the defendant during his final address that he gave the explanation just referred to. I had warned him earlier in the proceeding of the inference that could be drawn if he failed to call witnesses in his camp who could give evidence relevant to the incident.
42 I specifically referred the defendant to Jones v Dunkel.[2] Essentially, I informed him of the following:
[2](1959) 101 CLR 298
· Natalie’s evidence was relevant to the plaintiff’s allegations that the leg strap loosened, and the defendant’s evidence that the plaintiff should have let go of the bar when Natalie called out “let go”.
· The unexplained failure to call Natalie does not fill in any gap in the evidence called by the plaintiff.
· I cannot speculate what Natalie might have said if she was called to give evidence.
· I can draw an inference that Natalie’s evidence would not have helped the defendant’s case.
· If I were to draw the inference, then I would be entitled to more readily accept the plaintiff’s evidence about particular matters on which Natalie could have spoken.
· I would also be entitled to more readily draw an inference founded upon evidence which was given about a particular matter by the plaintiff.
43 Despite my warning to the defendant, he did not call Natalie, nor did he make any effort to give any evidence regarding her availability, or why it was not open for me to draw inferences from his failure to call her.
Findings
44 The conversations which the plaintiff had with the defendant over the telephone and with the defendant and Natalie prior to the occurrence of the incident were, according to the evidence of the plaintiff and the defendant, very brief. Very little was disclosed other than the plaintiff had a voucher, and had previously had four lessons in kiteboarding.
45 The plaintiff’s evidence was that what experience he had from those lessons was years beforehand. He was neither asked by the defendant nor by Natalie when he had the lessons; who gave him the lessons; whether he had any level of competence in kiteboarding through those lessons, or any questions relevant to his general level of competence in kiteboarding.
46 The defendant gave a fair deal of evidence outlining his experience in the world of kiteboarding. Part of that evidence was imputing that if the plaintiff had previously had four lessons, then he would have been experienced, and no further enquiry was required. However, I accept the plaintiff’s evidence, which left me with the impression that although he had previously had lessons, he was not very experienced in kiteboarding.
47 Neither the defendant nor Natalie gave the plaintiff any particular instructions regarding steps he should take if he got into any difficulties. The defendant did not give any evidence that the plaintiff was instructed to let go of the bar in the event of difficulty, which would have resulted in the kite falling gently to the beach. Natalie was not called to say whether she gave any such instruction, and the plaintiff did not give any evidence that any such instructions were given.
48 According to the evidence of the defendant, Natalie was standing directly behind the plaintiff. This would have possibly put her in a position to observe whether the strap was loosened, and whether the plaintiff steadied himself on his left leg. These events are critical to the plaintiff’s case, and critical to the defendant’s defence.
49 I accept the plaintiff’s evidence that the conversation with the defendant over the telephone, and with the defendant and Natalie on the day when the incident occurred, was brief. I accept that he was not asked about his level of experience, and that the defendant was unconcerned about the plaintiff’s level of experience.
50 I accept the plaintiff’s evidence that there was no further conversation between himself, the defendant and Natalie, and neither gave him instructions what he should do if he got into difficulty; for example, instructing him to let go of the bar if he was unable to control the kite.
51 Natalie is very much in the camp of the defendant, and she is a critically important witness. She is the only person in the defendant’s camp who was in very close proximity to the plaintiff at the time when the plaintiff says that the leg strap loosened, and he steadied himself on his left leg. I draw the inference that her evidence would have been of no help to the defendant, and that I can more comfortably accept the plaintiff’s evidence that the leg strap loosened, forcing him to steady himself on his left leg. I have little doubt that the leg strap did loosen. I am fortified in accepting that evidence, because of the conversation which the defendant had with the plaintiff in the defendant’s car as he was driving the plaintiff from the beach to The Alfred hospital.
Negligence
52 I am satisfied that the defendant owed the plaintiff a duty of care. I am satisfied that the content of the duty of care was to take reasonable care in the circumstances. I will return to the question of the content of the duty of care and whether there was a breach later in these reasons.
53 Section 47 of the Wrongs Act 1958 provides that the provisions of PART X are not intended to affect the common law; however, I must address particular provisions which are relevant to a determination of the plaintiff’s cause of action.
54 I find that the risk of injury to the plaintiff was foreseeable, and was not an insignificant risk, given that if the plaintiff got into difficulty if the kite filled with wind, it would inevitably cause him to be launched off the beach with the risk that he might collide into the hard sand of the beach at speed.
55 I find that a reasonable person in the position of the defendant would have taken precautions to give the plaintiff instructions regarding what to do if he got into difficulties, and would have inspected and maintained the harness in good working order to avoid the risk that a leg strap would loosen, exposing the plaintiff to falling into difficulty controlling the kite.
56 I find that there was a high probability that harm would have occurred to the plaintiff if the defendant had not taken reasonable care. I also find that there was likelihood that the plaintiff would suffer serious harm. I have paid due regard to the burden on the defendant in taking the precautions which I consider to be relatively simple. I do not consider that any question of social utility arises here.
57 I find that the negligence of the defendant was a necessary condition of the occurrence of harm suffered by the plaintiff. I find that but for the leg strap loosening, the plaintiff would not have had to steady himself on his left leg, would not have pulled down on the bar, and would not have subsequently launched off the beach.
58 The defendant raised, as a defence, that if the plaintiff had let go of the bar in obedience to Natalie calling out to him to “let go”, the incident would not have occurred because the kite would have fallen onto the beach. I do not accept that the series of events which happened over a handful of seconds can be so separated into apparent constituent parts. The whole transaction seems to be indivisible because it occurred over such a short period of time, and in the agony of the moment. I do not accept that Natalie calling out to him, and the plaintiff not letting go of the bar, can defeat his claim.
59 For the foregoing reasons, I find that the defendant did not obtain sufficient information from the plaintiff to understand whether he was experienced or not; that it did not instruct him to let go of the bar if he got into difficulty, and that it failed to maintain the harness in a good, workable and safe condition for the use of the plaintiff. Therefore, I find that the plaintiff has made out his claim in negligence against the defendant.
Contributory Negligence
60 The defendant did not plead contributory negligence. He pleaded a defence which is not pleaded in conformity with pleading practice, but there appears to be an allegation that the plaintiff failed to take care for his own safety. Initially the defendant wanted to raise a pleading of voluntary assumption of risk which I considered to be unsupported by the evidence. To be fair to the defendant, I propose to examine the question of contributory negligence.
61 In short, I can find nothing in the evidence of the plaintiff which demonstrates that he failed to take care for his own safety. He used the defendant’s harness. He fixed it around his body consistently with a practice approved by the defendant, and the defendant and Natalie were apparently satisfied that it had been fixed around his body appropriately. He otherwise followed Natalie’s instructions until the leg strapped loosened.
62 I see nothing in the evidence which demonstrates that the plaintiff could be found guilty of contributory negligence.
Damages
63 As a result of colliding feet first onto the hard sand, the plaintiff suffered bilateral fractures of the calcaneal bones of his left and right heels.
64 The plaintiff was treated at The Alfred hospital. X-rays revealed the nature and extent of the fractures. They were treated conservatively. The plaintiff was firstly provided analgesia to treat the pain he was experiencing. He was fitted with bilateral CAM walkers, which I understand to be boots that act like a cast. He was an inpatient overnight.
65 The plaintiff attended the Outpatient Clinic of The Alfred hospital on 4 February, 3 March, 1 April and 21 August 2008. He was later found to have an undisclosed fracture of the tibial epiphysis on the left side, but it would appear it was not of any particular significance.
66 The plaintiff made good progress. He made a reasonable recovery, and when last treated as an outpatient at The Alfred hospital, the attending medical practitioner noted that he had no residual pain in his heels. However, that would appear to have been the case on examination, but not the case when the plaintiff engaged in significant physical exertion involving his lower limbs.
67 The plaintiff also complained of suffering a spinal injury when first treated at The Alfred hospital. It would appear that the bilateral fractures of his feet took precedence in terms of treatment. He later complained of pain in his lower back. He had some physiotherapy, but preferred to attend a gymnasium.
68 The plaintiff attended Dr Guengerich, osteopath, following his discharge as an outpatient from The Alfred hospital. He was treated by osteopathic treatment on six occasions over a two-month period. He was treated for the injuries to his feet and his spine. He was reviewed on 27 October 2008, and was still experiencing lower back pain, right hip pain and stiffness. Four months later, on 3 March 2009, he was reviewed again, and on that occasion reported lower back stiffness at times. Dr Guengerich did not provide a prognosis.
69 The plaintiff was referred to Mr Mangos, general surgeon, by his solicitors. Mr Mangos examined the plaintiff on 23 August 2010. Mr Mangos obtained a history of the incident and the plaintiff's complaints of pain in his feet and spine. The major complaints made by the plaintiff were: aching in his heels; weakness in his ankles, and rolling of his ankles, especially the left. He also complained of spinal pain across his lower back, which was worse in the mornings, and it took a good deal of time for him to mobilise. He complained of some pain and stiffness in his neck.
70 Mr Mangos examined the plaintiff and reviewed x-rays of the plaintiff’s feet. He was of the opinion that the plaintiff had suffered undisplaced fractures of his heels which would, in all probability, interfere with his sporting activities, and a severe lumbosacral musculoskeletal ligamentous strain. He considered that the plaintiff’s prognosis was guarded, and that the plaintiff would be prone to suffer arthritis of his feet in later life.
71 In addition to the background material concerning the plaintiff which I set out earlier in these reasons, it would appear that he was an energetic young man who was very keen on sporting activities.
72 Before the plaintiff commenced his present occupation he was a qualified personal trainer. He had engaged in triathlons, both in Victoria and interstate. He intended to train to run marathons and to engage in ironman events. The plaintiff’s training regime was significant. He ran five times a week up to 50 kilometres per week. He also undertook a gym routine.
73 As a consequence of suffering the injuries to his feet and spine, the plaintiff was significantly restricted in his mobility for two months. He was wheelchair-bound over that period of time. When he was able to move from the wheelchair, his mobility was restricted by the use of the CAM walkers, and he had to use crutches for some time.
74 The plaintiff’s capacity to see to his personal hygiene was restricted. He had to shower sitting on a commode chair. He had to take off the CAM walkers in order to shower.
75 The plaintiff was off work for three months. He took annual leave and then was off work without pay. Apart from the treatment provided at The Alfred hospital and by Dr Guengerich, he also had some physiotherapy treatment.
76 The plaintiff said that he was in a lot of pain in both his feet and his lower back while he was in the wheelchair. He took Panadeine Forte and Voltaren for pain relief. It would appear that he ceased using those forms of medication not long after ceasing his use of the wheelchair. At present, he takes over- the-counter anti-inflammatory medication and Panadol for pain relief, but only occasionally.
77 The plaintiff said that he has tried to return to arduous physical activity of the kind he pursued before he was injured. He was able to run 5 to 7 kilometres three times per week until recently, when he suffered a flare-up of pain in his right foot. He recently had an MRI scan. No evidence was adduced of the product of the MRI scan, or any advice the plaintiff was given regarding the cause of the flare-up. He has found that putting his right foot on the ground with any force produces pain. The pain increases with additional effort and exercise. He has been forced to reduce the running he attempted to return to.
78 The plaintiff said that he has lower back pain most days. He suffers stiffness in his lower back in the morning. He uses an exercise device to reduce the stiffness in his lower back. It helps to do that. His lower back is worse during the winter months.
79 The plaintiff said that he cannot see himself running a marathon or engaging in ironman events. He is restricted in his domestic activities. He has difficulty lifting his four-year-old child, and playing games with his child. He has had difficulty moving furniture. When he moved house with his wife, he was unable to lift the heavier objects which he otherwise would have been able to do had he not been injured. He said that he is worried about suffering arthritis in his feet as he grows older.
80 The plaintiff was not challenged on any of the consequences which he says have arisen as a result of the injuries to his feet and his spine.
81 The plaintiff filed a list of special damages. He has incurred $1,540 for medical expenses comprising: $360 from Dr Karen Holzer; $280 from Mr Peter Roberts, and $900 from Dr Guengerich.
82 The plaintiff has incurred a loss of earnings of $7,794 net over a nine-week period following the occurrence of the incident. He has suffered a loss of superannuation benefits of $701.
83 I now turn to the question of the plaintiff’s damages for pain and suffering and loss of enjoyment of life. The plaintiff is a young man. I accept that he was an energetic sportsman who was more likely than not to be capable of competing in triathlons, and later, marathons and ironman events. His capacity to do so has been reduced to it being unlikely that he will be able to run any significant distances as he was given to, and in events of that kind.
84 The plaintiff will also be restricted in his capacity to engage in non-sporting activities on the home front. The simple activities of moving house and playing with his child are now significantly restricted.
85 The plaintiff experiences pain, particularly in his right foot, but also in his left foot, and also pain in his lower back.
86 I accept the plaintiff's evidence of the pain and suffering and the loss of enjoyment of life he has endured up to the present time, and I accept his evidence that he has incurred the special damages referred to above.
87 On the basis of the plaintiff's evidence and the medical evidence, I consider that a fair assessment of the plaintiff's damages for both pain and suffering and loss of enjoyment of life is $100,000.
Judgment
88 I propose to allow the plaintiff to enter judgment against the defendant in the total sum of $110,035.
89 Further, I order that the defendant pay the plaintiff’s costs to be assessed by the Costs Court, in default of agreement. I will grant a stay on execution of 30 days.
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