-------- - ------, '1J1Q~~ sc~-l-1iifo- ... IN THE SUPREl\IlE COURT OF OUEENSLAND No 3263 of 1996 Brisbane Before the Hon Justice White L'Martin v. Mansini] BETWEEN: WAYNE MICHAEL MARTIN n'----" Plaintiff AND: 0 PETER MANSINI Defendant REASONS FOR JUDGMENT - WHITE J Judgment delivered 2811011997 C) CATCHWORDS: PERSONAL INJURY - Quantum - injured face and shoulder - prevented from pursuing career as squash player and coach - three siblings world class squash players - probability of success-assessment of chance - Malec v. JC Hutton Pty Ltd (1990) 169 CLR 638. Counsel: Mr W Hodges for the plaintiff Mr J Griffin QC with him Mr G O'Grady for the defendant Solicitors: James Byrne & Rudz for the plaintiff Heiser Bayly & Mortensen for the defendant Hearing Dates: 3,4, 5 June 1996 This judgment is to be copied for the purpose of research and private study only. it is not to be resold or used for republication in any other way without permission. IN THE SUPREl\1E COURT OF QUEENSLAND No 3263 of 1996 [Martin v. Mansini] BETWEEN: WAYNE MICHAEL MARTIN Plaintiff AND: o PETER MANSINI Defendant o REASONS FOR JUDGMENT - WHITE J Judgment delivered 28/1011997 The plaintiff sustained personal injuries on 23 December 1988 when the defendant pushed him offa pontoon boat during a work party and he was struck by the boat's propeller. Liability o is not in issue. The plaintiff was born on 8 September 1964 and was 24 years at the time of the accident. () He is now aged 34 years. He suffered an injury to his right shoulder which has resulted in loss of power o.n abduction which Dr T Blue, orthopaedic surgeon, assessed at a 10% loss of function. He is right hand dominant. He also sustained injury to his face with resultant scarring. His shoulder disability affects him in his work as a landscape gardener but the issue for determination is whether, as a consequence of this injury, he has lost the chance to become a world champion squash player, to win prize money, endorsement money and in due course to engage in lucrative coaching contracts and to receive other advantages. -- --------------------- -------------------- 2 The defendant argues that because the plaintiff had not demonstrated his potential by being ranked or by winning important Australian squash events by the time he was injured the chance that he would have achieved his ambition must be heavily discounted to equal or less than the income he can now earn as a landscape gardener. For his part, the plaintiff points to his membership of a very talented squash playing family of international renown and the opinion of Mr Aubrey (Aub) Amos, a highly respected squash coach who believed that the plaintiff had the potential to excel as an international player to an even greater extent than his siblings. The Martin Familv o The plaintiff's parents owned and managed squash courts in Sydney. The whole family was involved in the enterprise and_ the children played squash from very young ages. Brett Martin o was born on 23 January 1963 and at the time of trial was ranked No 3 in the world as a squash player and had, won many important tournaments. Rodney Martin was born on 17 October 1965 and was World Open Champion in 1991, runner-up for three years in the British Open as well as winning numerous international tournaments. Michelle Martin was born 27 April 1967 and was o No 1 in the world in women's squash. Grant Martin is aged 24 and Tania Martin 23 but they are not engaged in tournament squash. The Plaintifrs Squash Career o The plaintiff played squash on a daily basis as a child, had success in New South Wales as a teenager and won a number of State age championships. He also played cricket and tennis as a school boy at 1st grade level. The family moved to Queensland in 1980 when the plaintiff was 16 years. He had just finished school. He looked for an apprenticeship in a number of trades unsuccessfully and eventually obtained work as a landscape gardener in a business in which the defendant was foreman. After several years the plaintiff returned to Sydney and worked as ----I -~----~~- 3 bricklayer's assistant for about two years before returning to Queensland in about 1986. Whilst the plaintiff was in Sydney he played regular social squash. On his return to Brisbane he worked for the defendant as a landscaper and started playing squash more seriously. He was approached by Mr Amos in 1987 who recommended that the plaintiffstart practising seriously because he had the ability to playas well as Rodney and Michelle Martin whom he then coached. Mr Amos had been a squash coach for some 34 years. He has coached numerous Australian Junior Teams, Queensland Teams, and individual world- recognised o champions such as Heather Mackay and Jonah Barrington, the latter being six times world champion as well as Rodney Eyles. Mr Amos was persuaded that the plaintiff had the talent to o attain a world squash ranking and set him a program of intense training with an eye to participating in the European Championships in 1989. The plaintiff was keen to do \-vell. Mr Amos reviewed the plaintiff's progress after six months and found him to be better than expected. He described the plaintiff's progress as phenomenal during 1988 and anticipated o that in his first year of participation in the European Championships he would not do particularly well but in the second year he would make the first ten and expected that he would win the British Open in his third year of competition playing in Europe. As the plaintiff's game improved Nlr Amos arranged for him to have match practice with his brothers Brett and Rodney and other world class players about three times per week. In his opinion this was an excellent lead-up to the championships both for practice and to meet world class players. Brett and Rodney Martin confirmed this and indicated that they would not have played with him had he not been able to give them a good game. The plaintiff sustained his injuries at the end ofDeceinber. As a consequence he was hospitalised and then attempted to rehabilitate his shoulder before travelling to Europe. He was unable to train before leaving in February 1989. He has no 4 recollection of it but apparently returned to work for the defendant's landscaping business for a short period perfQrming light supervisory duties before leaving. When playing squash the plaintiff experienced considerable limitation of movement because of the injury to his right shoulder. He did not have the strength to keep the racquet head up and his backhand strokes were compromised. At the same time he suffered from twitching muscles in his right eye due to face damage which generally affected his concentration. Although he won some prize money his game was, in his opinion, "substandard" and his weakness was identified and exploited by his opponents and their coaches. The defendant accepts that the nature o of the plaintiff's injury was sufficient to prevent him from ever becoming an international player at the top level. o The plaintiff returned to Australia in April 1989 after his savings were consumed and he concluded that his capacity and fitness were not improving. Nlr Amos recommended that he continue training but it was apparent that he was unable to perform to his previous level. The plaintiff participates in a local squash team which is successful but he finds that the deficits in his shoulder and the tick in his eye and facial muscles reduce his ability to play for more than an hour. o The Scarring The plaintiff is most concerned about the scars on the right side of his face which are o significant. The worst is an 8-10cm linear scar which runs vertically down his right cheek. He had some surgery to correct th~t scar so that it is now less obvious than initially, but it is significant. He has a scar under his eye and a scar on his chin which Dr Del Hinkley described in 1991 as of an elevated "trapdoored" appearance. He has many shoulder scars between the upper thoracic spine and shoulder joint. They are quite apparent and are pigmented in a patchy fashion. He is at greater risk of skin cancer because of this although they could be excised. He has continuing discomfort in his scar sites. He feels most self-conscious and unhappy about his facial 5 scars and thinks that they make him look like a criminal. His smile has been affected by the damage to his lip. He is a single man and finds it difficult to form relationships because of self- consciousness about his appearance although he is not much troubled by the scars on his shoulder. Emplovment Shortly after his return the plaintiff commenced his own landscaping business as he was unable to carry out the whole range of heavy tasks associated with landscape gardening such as shaping rocks for walls and mixing concrete all day as well as bricklaying, trowelling, using a crowbar for lengthy periods and using other labour intensive tools over time. Mr Griffin QC for the defendant submitted that because there was no discussion of o restrictions in working as a landscape gardener in the reports of Dr T Blue and Dr D Watson or in the plaintiff's statements ofloss and damage or the accountant's calculations as to loss of future earnings his injuries have had no impact upon his earning capacity.