JURISDICTION	:	DISTRICT COURT OF WESTERN AUSTRALIA 
IN CIVIL 

LOCATION	:	PERTH 

CITATION	:	EDGAR -v- BAXTER [2001] WADC 282 

CORAM	:	NISBET DCJ 

HEARD	:	18-19 OCTOBER 2001 

DELIVERED	:	14 DECEMBER 2001 

FILE NO/S	:	CIV 1229 of 1999 

BETWEEN	:	MALCOLM LEONARD EDGAR
Plaintiff
 
AND
 
JOHN DAVID CHARLES BAXTER
Defendant 

Catchwords:
Damages - Assessment of - Personal injuries - Past and future economic loss - Plaintiff principal earner for business partnership of himself and his wife - Limousine business - Plaintiff chauffeur 
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943 
Result:
Damages awarded in sum of $146,310.86 

Representation:
Counsel:
Plaintiff	:	Mr D R Clyne
Defendant	:	Mr T R D Mason 
Solicitors:
Plaintiff	:	Edwards Lawyers
Defendant	:	Jackson McDonald 

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

Jones v Dunkel (1959) 101 CLR 298

Case(s) also cited:

Husher v Husher (1999) 165 ALR 384
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Medlin v State Government Insurance Commission (1995) 182 CLR 1
QBE Insurance Ltd v Moltoni Corp Pty Ltd (2000) 22 WAR 148
Watts v Turpin (1999) 21 WAR 401 

1	NISBET DCJ:  The plaintiff claims damages for injuries he sustained in a motor vehicle accident in which he was involved in West Coast Drive, Hamersley on 11 December 1997.  He was born on 29 April 1956 and was accordingly about 45½ years of age at trial.
Pre‑accident history
2		The plaintiff attended Hale School until the end of his year 11 which was in about 1971 or 1972.  He then took an apprenticeship as a boilermaker welder which he completed after four years, continuing to work in his trade for some little time until he moved into sales in around 1979.  He returned to his trade in the mid‑1980's for a time, eventually returning to sales and then he commenced a swimming pool manufacturing business which he continued until 1995 when he started a limousine service known as Central Park Limousines.  This business he operated in partnership with his wife.  He told the court that in order to run the limousine business he had to have an F-Class driver's licence which enabled him to take fare‑paying passengers.  He had to establish that he was of good character and undergo a medical fitness test every three years.  Additionally, in order to obtain such a licence, the plaintiff said that he had to demonstrate that he had a sound knowledge of the laws which govern the small charter vehicle industry.
3		The plaintiff then described the establishment of the partnership business operated by himself and his wife.  They started with one stretch limousine and one sedan, with the plaintiff doing the driving, the canvassing, the advertising and things of that nature and his wife attending to the bookkeeping and office work.  They did not employ any additional drivers but the business increased in volume such that 12 months after its commencement the partnership was able to acquire another stretch limousine.  As at the date of the accident the business owned and operated two sedans and one stretch limousine but had on order, in the course of being built, another stretch limousine.
The accident
4		On 11 December 1997 the plaintiff was driving a stretch limousine "Central 2" south on West Coast Drive near where Lynne Street intersects with West Coast Drive.  The defendant was towing a trailer and travelling north.  The trailer was a double axle trailer which was loaded up with blue metal and concrete railway sleepers.  It would appear that the load was too heavy for the hitch because the plaintiff described the trailer as shearing off the towbar and then travelling into his lane of traffic giving him no prospect of avoiding a collision and a significant crash then occurred.  The air bag activated, trapping the plaintiff inside the vehicle.  A passer‑by was able to open the front passenger door and eventually the plaintiff was able to get out of the vehicle.
5		The plaintiff described being in shock after the accident.  He recalls sitting on the ground and using his mobile telephone to call an ambulance.  He remembers an off‑duty policeman who was jogging by stopping to render assistance.  The ambulance arrived and his wife came to the scene.  The ambulance was apparently occupied with other matters and the driver suggested to the plaintiff's wife that she take him to the emergency department at Sir Charles Gairdner Hospital, which she did.  He was discharged at about 2.00 am the next morning.  The accident had occurred at about 6.20 the previous evening.  The plaintiff described the onset of pain at about 10 o'clock whilst he was waiting for treatment at the hospital.  He said that he felt like he had been hit hard, so much so that hospital staff administered a painkiller to him.
6		At home the next day the plaintiff described the emergence of bruising saying that he was black from "top to bottom".  He could not get out of bed.  Nevertheless he thought he would get over it in about a week with appropriate rest.  There was an onset of symptoms, however, which have preoccupied the plaintiff since the accident.
7		Before moving on to deal with the plaintiff's symptoms it should be acknowledged that he gave evidence of only two prior health difficulties, the first arising out of a trail bike accident he had in 1975 when he injured his right wrist and the second in 1988 when he strained his lower back in the region of L5/S1 after he had returned to his trade for a brief period.  He acknowledged that he did have some continuing low back problems after 1988 but said that he had learned to manage them.
8		The plaintiff then proceeded to detail the symptoms he said were attributable to the injuries he sustained in the motor vehicle accident.  He said that he had a sensation of pins and needles in his wrists with sore arms such that it was suspected that he had carpal tunnel syndrome and was tested for it.  He experienced soreness in his right knee and whilst he was exercising himself by running on the beach he attended upon a sports doctor who advised against any further beach running and gave him an injection of cortisone.  Next, the plaintiff said, he was very sore in the area of the right ribs counting about six of his lower ribs on the right side that were very sore at night particularly, as he tried to sleep.  These gradually improved over the past 18 months or so.  The plaintiff, describing himself as believing himself to have been reasonably stoic before the accident, then told of difficulties with his right shoulder.  His right shoulder caused him a lot of problems with pain, restriction in movement and the like which he found very distracting.  Worse, it interfered with his business.  He could not lift suitcases or other luggage for his clients on some occasions because of these difficulties with his right shoulder.  The plaintiff also experienced considerable difficulty with his neck being a restriction in extension of movement, particularly to the right.  Demonstrating in court he thought that he could only move his neck to the right about half as far as he could before the accident.  Additionally, he said that his wife occasionally used to give him massages for the relief of his shoulder and neck strain but there was a particular part at the back of his head near the base of his skull on the right side of his neck which he described as being like an "on/off button" for headaches, by which I understood him to mean that touched in the wrong place in that region at the wrong time it precipitated a violent headache.
9		Headaches were the major cause of the plaintiff's concern.  He said that from time to time he was symptom free such that he would begin to think that he had made a complete recovery, but then he would unexpectedly get a severe headache.  He described looking for the cause of these headaches and thinking at first it was some difficulty with his vision and so he went and obtained some spectacles.  Then he thought it was the computer screen and so he obtained a screen guard but neither of these measures worked.  He said the headaches were at times intolerable.  He could get them sometimes up to five times a month and they could last anywhere from a day to three days.  He self‑medicates with Mersyndol and Panadol and finds Mersyndol makes him sleepy, but as it is the drug that works best for the alleviation of his headaches and other symptoms this is what he uses.  Asked what he thought were the most debilitating of his physical symptoms he described them as being his shoulder pain, neck pain and headaches.
10		The plaintiff then described alteration of mood brought on by the symptoms of his accident.  He said he had become very frustrated and moody and now had a low tolerance to people and situations which was difficult for him in his line of business.  He sought assistance from his orthopaedic surgeon, Mr Williams, who referred him to a psychologist, Dr Christine Day, however he thought that she had not particularly been of much assistance to him except that she had taught him to reassess his expectations of himself.
11		The plaintiff said that he had considerable difficulty standing for long periods, the same with sitting for long periods, which was particularly worrisome in his job as a chauffeur of limousines.  When not driving and trying to occupy himself with office based work he said that he had difficulty in concentrating.  Likewise he had difficulty pretending to be bright and smiling on the telephone with his customers when he felt unwell for so much of the time.
12		These symptoms have contributed to there being certain difficulties in the plaintiff's home life.  Praising his wife and children he said they have been very patient and forbearing with him but he finds that he is taking out his frustrations on them which, from his demeanour in the witness box, obviously caused him some distress.
13		Whilst the plaintiff did not describe a busy sporting life he did like to play golf and he and his wife used to enjoy walking the golf course together but now he finds that his right shoulder and right knee problems are punished by the requirements of golf and so he does not play any more.
14		Describing the treatments that he has had, the plaintiff had already mentioned the cortisone injection to his right knee, he has had a facet joint injection, acupuncture, massage, physiotherapy and various medications.  The physiotherapists have all recommended exercise programmes for him and he started a swimming programme and he now swims for up to an hour.  It has helped him to keep his weight under control.
The medical evidence
15		The plaintiff called his general practitioner, Dr R Leavy, an orthopaedic surgeon, Mr D Williams, a rehabilitation specialist, Dr J K Ker and a clinical psychologist, Dr C Day.  The defendant called Associate Professor P S Hollingworth, likewise a specialist in rehabilitation medicine.
16		Dr Leavy gave evidence that he first saw the plaintiff on 17 August 1998 some eight months or so after the accident.  Dr Leavy testified as to the history given to him by the plaintiff and went on to express the opinion confirmed in his first medical report that the plaintiff suffered "a severe muscular skeletal injury to his cervical spine, lumbar sacral region and his right rib cage which possibly had some fractures.  His symptoms now in regard to this accident are mainly severe retroorbital headaches."  Dr Leavy thought that the plaintiff was totally incapacitated for work for a period of about four weeks following the accident and thereafter was partially incapacitated however, from the time of his first attendance upon him Dr Leavy thought the plaintiff would suffer pain and discomfort "for many years to come as a result of this accident".
17		Confirming this assessment in evidence, Dr Leavy said that the plaintiff "would be unlikely to be ever pain free of [neck and low back pains]".
18		In cross‑examination Dr Leavy was asked why the plaintiff would have waited eight months to see him if the injuries were as severe as were described by the plaintiff.  Dr Leavy did not think this was at all unusual taking account of the plaintiff's personality and stating that "he was the type of person that actually didn't like to come to the doctor's, didn't like the waiting period there and basically he self‑medicated himself.  That was my impression".
19		He went on to say that he agreed with Mr Williams' views on the assessment of the percentages of disability noted by him in the plaintiff in consequence of the injuries he sustained in the accident but finished by telling the court that he thought the plaintiff would have his symptoms "for many years to come and its hard to put a time figure on that".
20		Mr Desmond Williams is an orthopaedic surgeon of some 30 years experience.  He first saw the plaintiff in March 2000.  He thought the plaintiff's headaches were a significant problem for the plaintiff and in his opinion these originated with dysfunction of the right upper cervical spine facet joint, an opinion he said which was shared with others who had examined the plaintiff.  Additionally, he noted that the plaintiff complained of significant right shoulder symptoms in consequence of which he arranged an MRI scan of the right shoulder which showed an indentation of the posterior superior aspect of the humeral head and subjacent to this an area of ill‑defined bone marrow oedema was noted.  Mr Williams' opinion was that there was an impaction fracture at this site arising out of the motor vehicle accident of December 1997 and in his report of 17 May 2000 he described it such that "We are seeking a direct consequence in the MRI of the impact injury to his right shoulder."  In his evidence Mr Williams described this further saying that the MRI " … showed something quite unusual, an indentation of the bone, so that in this impact he had a driving force through his arm and shoulder that caused the ball of his shoulder to impact on the socket part and indent and leave a groove in the bone, which is quite unusual.  I think it just is a measure of the force that was involved.  There was significant force involved."
21		Noting other problems with the plaintiff, Mr Williams thought that he had significant functional limitations resulting in an incapacity for some work and an interference with his capacity to cope with his employment.  In terms of disability assessment Mr Williams estimated a permanent residual disability in the cervical spine related to the accident of the order of 10 per cent expressed as a percentage disability of the whole functional spine:
"… and this represents a permanent loss of efficient use of the spine related to his cervical segmental stiffness that is persistent and his persisting headaches.
Further, in the right shoulder he has a painful rotator cuff abduction arc with pain working above shoulder level and this restriction is related to the severe impact injury reflected by the MRI identifying direct bony indentation reflected in the impact trauma from the vehicle.
In the right shoulder he has a disability of the order of 5–10% expressed as a percentage disability of the whole right upper limb.  It is noted there is no rotator cuff pathology identified in various radiological studies but he has a painful arc and the significant impact injury reflected in the bony indentation."
22		Asked about treatment and prognosis Mr Williams said that physical therapy with an intervention programme by a trained physiotherapist and his own swimming and exercise schedules was the path he suggested.  He thought there was no indication for surgery, going on to say:  "It's a physical therapy programme that's indicated, combined with anti‑inflammatory drugs and pain drugs."
23		Dr John Kingston Ker is a consultant physician in rehabilitation medicine who saw the plaintiff in October 2000.  Dr Ker basically confirmed the diagnosis of other practitioners and went on to express the view that he thought that the plaintiff's right shoulder symptoms would continue, saying:
"… he had had physical treatments, he had had exercise treatments, he had had medications both for pain and anti‑inflammatory agents.  I find it hard to postulate that in that situation an articular joint like the shoulder would then suddenly spontaneously improve further."
24		Put expressly to him as to whether or not he would agree with what was said to be Mr Williams' opinion that the plaintiff's symptoms would settle between two and five years, Dr Ker disagreed, confirming the opinion expressed in his report that:
"It would be my personal view that the likelihood of further improvement over time is minimal.  I would have thought that in every likelihood, this man will continue to experience pain in his right shoulder, particularly with sustained driving tasks or undertaking resistive upper limb activity on the right side.
I would be hopeful that his cervical symptoms might settle further."
25		As to the plaintiff's incapacity for employment Dr Ker noted that the plaintiff had told him that he was unable to function effectively at work for in and around three to four months and that it was Dr Ker's understanding that the plaintiff worked on a daily basis but,
"… occasionally, when his headache is substantially intrusive, he is obliged to leave work because of his incapacity to conduct business.
In general terms, however, it is my understanding that he attempts, within the limits of his pain and headache, to maintain full time self‑employment."
26		Dr Ker finished his report stating that he hoped that the plaintiff's current work function would be sustained "long term".
27		Dr Christine Day has a Masters Degree in clinical psychology and is a Doctor of Philosophy, her doctorate having been awarded for her work in the treatment of depression.  The plaintiff was referred to Dr Day by Mr Williams.  She first saw the plaintiff in June 2000.  Upon examination she found that the plaintiff was depressed because of ongoing pain in his shoulder and headaches and the effect these were having on his ability to manage his business and his relationships with his family.  Seeing the plaintiff again the day before the trial commenced Dr Day thought the plaintiff was still suffering from depression which she classified as moderate.  She was not cross‑examined.
28		Finally, Associate Professor Hollingworth was called to give evidence by the defendant.  In his written opinion which came into evidence as Exhibit D1, Professor Hollingworth expressed the view that he did not think there was evidence of permanent residual impairment or disability.  Asked why he came to that opinion he said that:
"He has got soft tissue injuries which eventually get better.  It's not possible to give exact dates because people vary enormously but there is nothing in any of the investigations which I have seen which would suggest that this will be permanent.  I can't give you a guess though as to when he will be symptom free.  The reason I suggested that I didn't think there was a point in adding what I have put as anger and frustration is that of course tension headaches may be part of his headaches.  I'm not suggesting they are all of that but I didn't feel there was any point in prolonging the agony, as it were."  (T108, 109)
29		Asked whether he could distinguish between the plaintiff's headaches and neck symptoms on the one hand and his right shoulder symptoms on the other as to their prognosis he expressed the view that, "I think the headaches may be slower to settle, but again that's a guess".
Claim for economic loss
30		The plaintiff said that before his accident he estimated that he was engaged in driving and associated duties away from his home (from where he and his wife ran their business) for about 30 – 40 hours per week.  He would be engaged upon other aspects of the business such as office work, canvassing for business and the like for about 20 hours a week, a combined total of about 60 hours a week.  He described most aspects of the business as being people orientated requiring him to present at all times as being pleasant, courteous and, as I understood it, friendly without being intrusive.  He always had to look well presented as if he was a private chauffeur.  He described certain heavy aspects of his work particularly in regard to the loading and unloading of his clients' suitcases which he described as being extraordinarily heavy on occasion.  Specifically, the plaintiff described his duties as involving those of a chauffeur, a certain amount of office work, particularly that associated with marketing and customer relations, car cleaning and general management duties organising his fleet, employing other drivers and allocating work and matters of that nature.
31		Since the accident the plaintiff claims to be working at about 30 per cent of his capacity.  He has difficulty with most aspects of his business.  He finds driving difficult if he has headache, shoulder or neck pain.  He has difficulty with his clients' luggage.  He has difficulty putting on a cheerful front when he is in pain or depressed or both.  This applies too to his office work where his mood greatly affects his ability to be creative and engage in the marketing side of his business.  Similarly, he finds that if he engages in telephone work whilst his mood is depressed or he is in pain he does not project a good image of his business.  As to the heavier non‑driving duties such as car cleaning, whilst he acknowledged that he did before the accident and continues to have the business vehicles professionally detailed every few months or so, the in-between cleaning that he used to undertake is now done by his son and wife although if the demand requires it he will still undertake that work but he described himself as being the last to undertake vehicle cleaning.  Averaging out his current effort the plaintiff says that he would drive now on average about 10 hours a week and spend between 5 and 15 hours a week in office duties, accounting for a total present participation in the business of between 15 and 25 hours a week.
32		The plaintiff's claim as originally formulated under this head in his answers to a request for further and better particulars of claim was for then past loss of earnings calculated at $21,346.15 and for future loss of earning capacity in the sum of $186,633.62.  The plaintiff pleaded that these were calculated on the basis that from the date of the accident on 11 December 1997 to the date of the particulars (17 May 1999) a period of 74 weeks, the plaintiff was required to hire a driver to undertake the driving duties which he was no longer able to undertake and which he said cost $288.46 net per week.  The claim for future loss was calculated out from the same base of $288.46 net per week being the cost of hiring a driver to undertake the work previously undertaken by the plaintiff, until he attained the age of 65 years.
33		Subsequently this claim was considerably escalated by the plaintiff's schedule of loss in earning capacity filed pursuant to the practice directions of the court on 15 November 2000.  This schedule put forward a claim on behalf of the plaintiff calculated on an entirely different basis.  By these particulars the plaintiff purported to establish that it was possible to divide up the earnings of his fleet of vehicles and isolate the lost income from the vehicle which he normally drove ("Central 2"), calculate out the expenses particular to that vehicle and then extrapolate from that a loss which was then carried forward as the base of calculation for past and future economic loss.  The plaintiff claimed that the total loss from Central 2 was $61,000 per annum and hence his claim for past economic loss at that time was $171,134 and for future economic loss through to age 65 years of $777,483.  He additionally claimed "the global amount of $50,000" for loss of goodwill and the value of his business "due to its not being expanded to its full potential" (sic).
34		The plaintiff then engaged the services of an expert chartered accountant to calculate out his loss.  Mr Kevin Healey certainly had the relevant expertise to undertake this task however, he was not invited to audit the figure of $61,000 and was simply invited to take $61,000 net profit per annum as being the loss of profit on Central 2 due to the non‑availability of the plaintiff as its full time driver as he previously had been, and extrapolate that backwards to get a figure for past economic loss, and forwards for a period of future economic loss.  As will immediately be apparent, the figures the subject of the schedule did not take into account the incidence of taxation.  Mr Healey's calculations did, although in a way that was, in my opinion, far too favourable to the plaintiff.  In any event, Mr Healey's written opinion of 11 October 2001 came into evidence as Exhibit P4 and it calculated the plaintiff's past economic loss after tax at $180,885.55 and his future economic loss after tax at $588,638.53, a total of $769,524.08.
35		Mr Healey was called to give evidence to support his opinion.  During the course of his testimony Mr Healey observed that he had been present in court when the plaintiff had given some of his evidence and in particular in respect of his retained earning capacity which I have detailed above.  In consequence of hearing this evidence Mr Healey revised his opinion and produced a supplementary calculation which came into evidence as Exhibit P5.  In the supplementary calculation Mr Healey endeavoured to take account of the fact that the plaintiff's absences from his business could be compensated by calculating the cost of a replacement driver the rosters for whom could be worked out sufficiently to enable the plaintiff to take the unexpected out of hours personal work up to his 10 hours a week or so with the balance being taken up by an employee.  This is what he said:
"Overnight, having heard the evidence and having further considered the matter, I have done some further calculations and if one were to assume that the loss, looked at another way and taking into account the fact that the plaintiff has continued to drive a little and has continued to manage and administer, perhaps not as well as before the accident but, nonetheless to an extent, then if one were to take the view that the loss is an average weekly earning of $37,000 per annum and apply to that 9 per cent super – it's currently only 8 per cent but it's been held back at 8 per cent for 2 years so it was due already to have gone to 9 per cent, so for the future it will be 9 per cent – 2 per cent workers compensation insurance say and 1 per cent of other wage administration and related costs that comes to $41,440 per annum and at age 46 then there is 19 years to retirement and if one discounts that stream at 6 per cent before tax the present value is $462,392 and if one then adds to that the past loss, calculated at $37,000 without any on‑costs, because the on‑costs were less and the wage would have been slightly less over the past 4 years, that is $148,000 at present value and if the 148 and the 462 is added together one comes to $610,000 and one then has to address the likely rate of income tax applying to that.  I have taken the view that the marginal rate, the maximum rate of tax which would reasonably apply in the future would be 30 cents which is the current corporate rate.  I have also taken the view that the lowest rate which could apply is the lower personal rate which with Medicare is currently 21.5 cents in the dollar, and because of the nature of the industry I think it fair to say that an average of those two rates would be the most likely incidence of taxation over a period of time and the average rate then between those two rates is 25 and three‑quarter per cent and if that rate of tax is taken from the entire income stream and it matters not whether one does this prior to discounting or after, the answer is that the present value of the past and future lost income streams is $453,000." (T117 – 118)
36		Mr Healey then went forward to postulate a claim for loss of goodwill.
37		I found it surprising that if this was to be the preferred method of calculation of the plaintiff's loss that there was no attempt made to isolate from the plaintiff's books of account the cost to the business of the provision of other drivers from time to time so that an hourly rate could be presented to the court.  The evidence disclosed that other drivers were employed from time to time and I would have thought it would have been a relatively easy task to produce records of various drivers, their hours worked, the pay received and come up with an hourly rate that applied in each of the past financial years since the accident and as at the date of trial, but no such attempt was made.
38		A huge volume of "economic information" was provided to the court and it came into evidence as Exhibit P2.  From the outset it was anticipated that Mrs Edgar would be called to give evidence to prove the content of Exhibit P2 because the plaintiff said she was the bookkeeper for the business and insofar as any detailed knowledge of the accounts was required, the plaintiff always deferred to his wife.  Presumably it was Mrs Edgar who was going to prove the $61,000 figure put forward as being the basis of the loss of profit of Central 2 in the plaintiff's pre‑trial schedule of calculation of economic loss which formed the basis for Mr Healey's first opinion.  But Mr Clyne specifically did not call her.  I commented on it at the time when he closed his case.  The transcript reveals the following exchange:
"CLYNE, MR:  Your Honour, that is my case.
NISBET DCJ:  You're not calling Mrs Edgar?
CLYNE, MR:   No.  If we get into that, we'll be here sometime next year."
39		By this I understood the plaintiff's counsel to mean that the plaintiff had made a forensic decision not to submit Mrs Edgar to cross‑examination on the books particularly in relation to the alleged loss of profit of $61,000 from Central 2 but neither, it would seem, in respect of Mr Healey's choice of $37,000 per annum being the average weekly earnings as being the cost of a replacement driver when there was specific evidence available which could have isolated these expenses with certainty.  The absence of this evidence became the subject of a comment by me to counsel for the defendant during his closing submissions when I made reference to the inferences that were available to be drawn against the plaintiff in this regard by reason of the decision in Jones v Dunkel (1959) 101 CLR 298.  Mr Clyne took this up in his closing submissions at T172:
"I am mindful of what your Honour said about Jones v Dunkel, but the observation I make in regard to this is that we have this enormous volume of documents which provides all of the financial records, and it's not just the financial reports and tax returns but bundles of the computer printouts which are contemporaneously entered, and Mr Healey said they are internally – what was the word he used‑ ‑ ‑
NISBET DCJ:  Consistent.
CLYNE, MR:  Consistent.  There's no challenge to them.  The only issue that was raised by Mr Burns was really from an accounting point of view but he didn't understand them and he needed more evidence.
NISBET DCJ:  The issues were these, that if the plaintiff is asking me to make an assessment of damages based on Mr Healey's first opinion then the plaintiff should prove the $61,000 base chapter and verse, and not leave it for me to trawl through that bundle of documents to try and draw inference after inference‑ ‑ ‑
CLYNE, MR:  I can't ask your Honour to do that when Mr Healey changed his evidence in the box.  I mean, he said he sat and listened yesterday to the evidence, as a consequence of having heard the sworn evidence of the plaintiff he formed a different opinion, and he told your Honour what it was and why it was.  That is the one that I am met with, and so for that reason there was no point‑ ‑ ‑
NISBET DCJ:  And you are faced with, yes.
CLYNE, MR:  ‑ ‑ ‑ in calling Mrs Edgar when there's no real challenge to the authenticity of the documents.  It was only a challenge when there was $61,000 but, as I say, we have got Mr Healey's evidence, he has been through all these and he came to the view that that was an appropriate level at which to assess the loss. …"
40		The submission then continued on another point.  It was, however, not correct for Mr Clyne to say that the authenticity and reliability of the documents to be found in Exhibit P2 were not challenged.  They were challenged insofar as this could be done at the time of their tender through a witness who had not compiled or prepared them and in the anticipation that the witness who had compiled and prepared the relevant documentation was going to be called to give evidence.  She wasn't.  There was in the possession of the plaintiff, and to his knowledge the defendant's accounting expert Mr Burns had produced an opinion which said that the documents were not supportive of the claim that a loss had been sustained and so there was a direct challenge if not to the documents themselves as to their authenticity and content, then certainly to the conclusions that were sought to be drawn from them, which conclusions could not be adequately tested without the witness who primarily drew those conclusions being put into the witness box to support them.  And she wasn't.
41		Notwithstanding that Mr Clyne said that I shouldn't have to embark upon an examination of Exhibit P2, for the purpose of trying to calculate the plaintiff's claim with more precision, I did.  I looked to see where I would find the particularity of the cost of drivers to the business.  Looking at wages and salary for example in Item 30 in Exhibit P2 the 1997/1998 reports under the heading "Wages and Salary" all of the employees are listed as cleaners even "Maccas" which from a previous entry turns out to be a lawn mowing contractor (see p 4 under Tag 29 Wages and Salary "Maccas Lawn Mowing").  In the same document under the heading "Vehicles" no drivers' wages are specified and under "Wages and Salary" again all of the employees are said to be cleaners again, even "Maccas".  I then went to the transaction report in the same document and again wages and salary are shown as being paid to cleaners (again including the lawn mowing contract or Macca).  The information is the same under Tag 31 in Exhibit P2 being the reports for the 1998/1999 financial year.  There is no employee identified as a driver – they are all cleaners.  In the documents to be found under Tag 32, however, being those for the financial year 1999/2000 there is some identification of drivers.  At p 40 a driver called Brad is identified and at p 41 drivers Dave Shaw, Jerry, Kevin, Vicky and Brian are identified but there is no information to enable me to calculate the hourly or even weekly rate paid to these people.  Under Tags  33 and 34 some transaction reports for "Brian" and "Trevor Brown" are included but they are both there described as cleaners and I am unable to draw any conclusion as to why their particulars are to be found there (notwithstanding the plaintiff's testimony that he employed a Trevor Brown as a driver).
42		The foregoing I think demonstrates the difficulty of calculation of the plaintiff's past and future loss of earning capacity.  Particularly when, it seems to me, there was information available which could have been readily put before the court to enable a more precise calculation to be made.
43		I am left to do the best I can.  Firstly, in my opinion the plaintiff has not suffered the catastrophic loss he claims.  He has suffered a loss however, and I will move now to its assessment.
44		Following the accident, the plaintiff said that he could not get out of bed the morning after, he was so sore.  I accept this evidence.  Thereafter I accept his general practitioner's evidence, albeit given retrospectively, that the plaintiff was totally incapacitated for about four weeks.  Although it was not stated to be the case, I infer that Dr Leavy's opinion in this regard came from the history he had been given by the plaintiff when he first saw him eight months after the accident.  Then, accepting Dr Ker's evidence of the history he was given by the plaintiff, I find that the plaintiff's capacity for work was still significantly reduced for a further two or three months (he said three or four months after the accident).
45		From that time until the present I accept the plaintiff's evidence that he averages 15 – 25 hours per week working in the business compared with the 50 or 60 hours a week before the accident.  In my opinion the medical evidence supports these findings in that the plaintiff suffered quite a severe soft tissue injury to his neck and back, giving rise to frequent debilitating headaches.  No one seriously suggested otherwise.  Further, he would be considerably hampered by his right shoulder injury which would prevent him lifting heavy baggage and the like and would restrict him in his cleaning of the vehicles.  As to the likely continuance of these symptoms, I accept Professor Hollingworth's opinion that they will "eventually get better" and that they are not likely to be permanent.  Mr Williams thought they would last from two to five years; Dr Leavy "for many years to come".  Dr Ker thought the plaintiff's "current work function" would be sustained "long term".  I observed the plaintiff closely during the course of the trial and he did not exhibit any difficulty that I could detect and hence I am minded to think that the plaintiff will be symptom free within three years as per Mr Williams' opinion.
46		Trying my best to put all this in some sort of logical order then I think the plaintiff's claim for economic loss can be assessed on the basis that:
1.	He would have needed a full time replacement driver for 40 hours a week and an office assistant for 10 hours a week for four weeks following the accident.
2.	He would have needed a replacement driver for 30 hours a week for the next 12 weeks.
3.	He would have needed a replacement driver for 20 hours a week until trial.
4.	For the next three years, he will need, on average, a replacement driver for 20 hours a week, after which it is more probable than not that he will resume his pre‑accident level of work.
47		As there was no evidence of an hourly rate for limousine drivers, and I reject Mr Healey's calculation based on average weekly earnings as lacking sufficient precision, I am left to take judicial notice of the Australian statistician's averages of weekly earnings published in the Australian Year Books by the Australian Bureau of Statistics which are admissible evidence under the Commonwealth's Evidence Act.  The last available compilation of earnings statistics in Australia in the Year Books is as at May 1998 which is an appropriate base from which to calculate past economic loss.  These show that the average weekly earnings of all persons in the transport industry at that time were $630.30 per week gross.  This compares favourably with the figure for all occupations of $610.20 per week gross.  For intermediate clerical, sales and service workers, gross average weekly earnings were $475.20.  Regrettably, these figures are not referable to the number of paid hours in each week.  There are tables of averages of hours actually worked in the Year Books, but not of paid hours worked per week.  This means I am unable to calculate an hourly rate with any precision and that I have to assume standard 38 hour weeks in the transport industry and 35 hour weeks in the clerical area.  The respective after tax amounts are on $630.30, $137.80 tax, leaving a net of $492.50 per week, and on $475.20, $85.07 tax leaving a net of $390.13 per week.  The net hourly rate of the former (at 38 paid hours per week) is $12.96 and the latter (at 35 paid hours per week) is $11.15.  These figures provide reasonable guides for the calculation of the plaintiff's economic loss.
48		The next question is that, having regard to the fact that the plaintiff's loss is the cost of provision of a replacement driver, whether the calculations should be on gross or after tax amounts.  It seems to me that the loss is properly calculable by reference to gross amounts in the first instance because this is what it will cost the plaintiff, and other statute based imposts such as superannuation and workers' compensation insurance should likewise be taken into account.  Hence the hourly rate for a replacement driver, averaged out over the four years or so since the accident is $17 per hour to which 8 per cent superannuation contribution should be allowed of $1.36 making a total of $18.36 per hour.  I have no means of knowing what workers' compensation insurance would cost.  This entire amount would, however, be a 100 per cent tax deduction to the plaintiff's business.  Each of the accountants gave evidence as to how this should be recognised in his calculation.  I much prefer Mr Burns' evidence on this point.  The resultant profit to the limousine business will be shared equally by the partners, the plaintiff and his wife, who will then pay the relevant marginal rate which each of Mr Burns and Mr Healey said was in the order of 30 per cent (albeit for different reasons and, in each case, in respect of future economic loss) however this rate would take account of the progression in the tax rates from nil up to $5,400 per annum, 20 per cent from $5,401 to $20,700 and 34 per cent from $20,701 to $38,000.  Thirty per cent of $18.36 is $5.51, leaving $12.85 as the effective after tax hourly rate of a replacement driver for the plaintiff.  [These marginal tax rates have since changed.]
49		Applying the same methodology to the cost of a replacement office assistant the gross hourly rate is $13.58.  Eight per cent superannuation adds another $1.09, total $14.67 less 30 per cent tax of $4.40 gives $10.27.
50		Applying these calculations to the different periods of loss identified earlier in these reasons:
1.1	replacement driver 40 hours x 4 weeks x $12.85 per hour = $2,056
1.2	replacement office assistant 10 hours x 4 weeks x $20.27 per hour - $410.80
2.	replacement driver 30 hours x 12 weeks x $12.85 per hour = $4,626
3.	replacement driver 20 hours per week until judgment,
3.1	from 11.12.1997 for 16 weeks takes us to 2.4.1998;
3.2	from 2.4.1998 to judgment is:
	02.04.1999:	52	weeks
	to	02.04.2000:	52	weeks
	to	02.04.2001:	52	weeks
	to	14.12.2001:	35.3	weeks
	Total:	191.3 weeks
	x 20 hours x $12.85 = 	$49,164.10
3.3	hence total past economic loss is:
	 $2,056.00
	   $410.80
	 $4,626.00
	$49,164.00
	$56,256.90
4.	For the future, the latest publication of average weekly earnings, outside of the Year Books, was published by the Australian Bureau of Statistics on 15 November 2001 as Average Weekly Earnings as at August 2001.
51		This shows that in the transport industry the average earnings of all employees was $841.40 per week.  Again the difficulty is in extracting an hourly rate.  The publication states that this amount is for "Full-time adult ordinary time earnings" and hence I assume a 38 hour working week.  This reveals an hourly rate of $22.14.  As the superannuation contribution is to rise to 9 per cent, this will add $1.99, bringing the total to $24.13.  Applying the same tax rate as before, of 30 per cent (the present relevant marginal rate) deducts $7.24 and leaves $16.89, which for 20 hours a week is $337.80.  The multiplier for three years is 144 and the resultant sum if $48,643.00.
Other heads of claim
52		As to other heads of claim, the plaintiff sought general damages for loss of amenities and the like, an award for the value of gratuitous services rendered to him, an award for the cost of provision of further medical and related treatment, special damages, interest and costs.  No evidence was given about gratuitous services.  No evidence was given about the cost of past medical and pharmaceutical expenses.  No evidence was given about the cost of his current medications (Mersyndol and Panadol – T18) and the frequency of their current and anticipated future use.  There was no evidence given about "special damages".  Clearly however the plaintiff attended upon a number of medical practitioners and took analgesic and other medication from time to time and for them a modest global award should be made and I allow $500 for past and future medical and pharmaceutical expenses.  This leaves an award for loss of amenities and interest.
53		I have canvassed earlier in these reasons the nature and extent of the plaintiff's injuries, their impact upon him, his work and his family life.  Likewise I have canvassed his prognosis and have come to the conclusion that he will be able to return to his pre‑accident duties in about three years' time.  Considering all these factors, and looking to the provisions of s 3C of the Motor Vehicle (Third Party Insurance) Act 1943, I consider the plaintiff's accident caused injuries as being 17.5 per cent of a most serious case.  Amount A is $232,000, Amount B is $11,500, and Amount C is $35,000.  The calculation is thus:

$232,000 x 17.5 – $11,500 = $40,600	
	 100	

[Section 3C(6)] 	$11,500 – [$40,600 – $35,000] = $5,900
	$40,600 – $5,900 = $34,700
54		Turning to the calculation of interest at 6 per cent per annum applied to an accruing loss, it is appropriate to apply the whole rate to half the amount or vice versa.  This means the calculation is thus $56,256.90 x 6 per cent per annum for 3.68 years ÷ 2 = $6,210.76.
Summary
55		In summary therefore the award will be
	General damages	$34,700.00
	Past economic loss	$56,256.90
	Future economic loss	$48,643.20
	Past and future medical expenses		$500.00
	Interest on past economic loss	$6,210.76
		$146,310.86