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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. Dr Blue was confident that

the plaintiff would experience difficulties with aspects of landscape gardening. Dr Watson had C) deceased before the trial. It is hardly surprising that the focus of the medical reports was upon the plaintiff's lost opportunity to be a squash player. That was the focus of his disappointment.

I accept that the plaintiff does experience difficulty in carrying out the range of work that a

landscape gardener is customarily expected to do of a heavy nature and which might make

working for someone else's business difficult. The plaintiff said that he did all the work that he

could. Mr Griffin submitted that this implied no physical disability, merely lack of work. That

statement needs to be appreciated against his earlier evidence that he had to limit the kind of work

that he could take.

The plaintiff has not earned in anyone year as much as $10,000 to the date of trial as a

landscape gardener and in some years significantly less. He said that he obtained a number of

"contras" when he worked, such as, work on his utility in return for landscaping for a panel 6 beater. These amounts were not quantified but I did not get the impression that they were worth much. The plaintiff lived a modest lifestyle at home with his mother. A significant amount of the plaintiff s work had come in the past from people whom he knew including his father who was a builder at the Gold Coast and friends of friends and relations.

The plaintiff has not, however, attempted to quantify the amount of that loss by reference to his pre-injury earnings or by reference to what he might have earned had he been uninjured and running his own business. This is partly because the plaintiff did not anticipate that had he not been injured he would have run his own landscaping business. His expectation was that he would o continue to play squash and work as an employed landscaper and in due course turn professional.

He is entitled to be compensated for the diminution in his capacity to earn as a landscaper if the o conclusion is" as the defendant would have it, his chance of becoming a top ranking player was

"slim indeed".

Period 2 Februarv to 2 May 1989 The plaintiff has claimed $15,000 for this period to represent the amount he saved and o took to Europe and which he did not recoup in prize money. I accept the defendant's submissions bearing in mind Mr Amos' expectation that he would not do particularly well that first year and that his brother made a loss on his first European tour that this loss has not been established . o . . Loss of a Chance

The defendant contends that since the plaintiff had not made his mark by being ranked in

Australia or even Queensland .before his injury he was outside the accepted path to international success and had left his "run" too late. Evidence was given by Mr Geoffrey Hunt, the head squash coach at the Australian Institute of Sport since its inception in 1985 and who had won eight British Open squash competitions asa player. He said that the usual route to international success, which was his own COllfse, was to start as a well credentialled junior and to continue 7

from there. However, he did know of players who had started later but they were exceptional.

Brett Martin's career started late but he had state and national ranking.

Mr Owen Sturgess, associated with competition squash in Queensland for some 36 years

thought that necessary characteristics of a champion squash player are outstanding reflexes and

excellent eyelhand/ball coordination which traits often run in families. Mr Sturgess had no

professional coaching or international experience but considered that performance in competition o proves that the player has the requisite qualifications and temperament to proceed to the international arena. Dr Ian Lynagh, a sports psychologist and, relevantly, a consultant to the

squash unit of the Australian Institute of Sport examined and tested the plaintiff. He concluded o that the plaintiffhad a number of the factors that are important for high performance in sport.

"He had high emotional stability, self sufficiency. There was a mental toughness that I've mentioned, and also on the clinical side, the elevated levels of agitation, which mean that's someone who prefers to take on challenges that - and do difficult things, usually related to some type of arousal, adrenalin arousal activities." tis p.S2. o Dr Lynagh also concluded that the injuries would have had a negative psychological impact upon the plaintiff's game during the European tour in addition to his physical detriments.

,/ . Mr Amos was enthusiastic about the plaintiff's future. His admitted coaching style was ,,--) to be positive and the defendant has submitted that his opinion should be treated with some

reserve for this reason. I see no good reason not to accept Mr Amos' opinion of the plaintiff's

potential. His coaching history placed him in an excellent position to be a judge of such matters.

By the time Mr Amos gave his evidence he was elderly and unwell but nonetheless alert and

unshaken in his opinion without being stubborn. Rodney Martin emphasised that he would not

have been practising with the plaintiff in 1988 had he not been a competitive partner. He

considered that his level of fitness was reasonably good but that irtook some years to achieve

outstanding fitness to be a world class squash player and this came with international competition. 8

Neither he nor his brother Brett nor Mr Amos placed much store on State and Australian rankings as a prerequisite for international achievement but he did note the high standard of Australian squash players when he first went overseas.

The defendant pointed to the plaintiff's lack of commitment to squash after he left school but Rodney Martin s~d that he had thought of playing tennis seriously rather than squash and his brother Brett was not motivated for some years after leaving school being more concerned with finding employment. Geoffrey Hunt, regarded as one of the great squash players, had a gap of six years before returning to the game and reaching his peak performance. The defendant points o tellingly to the lack of squash success of the two younger Martins. However I think that the preponderance of evidence favours. a conclusion that the plaintiff had very good prospects of o achieving highly in international squash playing. It was however a chance and not a certainty.

The approach to the assessment of a chance was considered by the High Court in Malec v. JC Hutton Pty Ltd (1990) 169 CLR 638 per Deane, Gaudron and McHugh JJ at p.643

"". In the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future o may be predicted and the hypothetical may be conjectured. But the questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible as scientific demonstration or proof If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability o may be very high - 99.9% - or very low - 0.1 %. But unless the chance is so low as to be regarded as spef;ulative - say less than 1% - or so high as to be practically certain - say over 99% - the court will take that chance into account in assessing the damages. Where proof is necessarily unobtainable, it would be unfair to treat as certain a prediction which has a 51 % probability of occurring, but to ignore altogether a prediction which has a 49% probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded."

The Court considered the approach to be taken where there are a number of significant po~sibilities as to what might have occurred in the future rather than a consideration of only a \

9

single possibility. In that case Mr Malec had a pre-existing back condition which might have

made him unemployable and if that had happened there was a chance that he might have a

neurotic response to that state of affairs similar to the condition he actually suffered from as a

consequence of the tortious conduct. The Court said at p.645

"When those probabilities are combined, the chance that the plaintiff would develop a neurotic condition decreases exponentially. If, for example, and only by way of illustration, there was a 75% probability of his becoming unemployable by reason of his back condition even if had not contracted brucellosis and a 75% chance that that unemployability would have caused a similar neurotic condition, (j there was only a 56.25% chance (75% x 75%) that, if he had not contracted brucellosis, he would have developed a similar neurotic condition."

The defendant has submitted that each step on the way to success must be taken into o account, for example the plaintiff had to be sufficiently successful in satellite tournaments to be

able to gain a position in the British Open and then he had to achieve success in international

tournaments and sufficient success in similar tournaments for that year to attain a sufficiently high

world ranking. He would need to continue to be highly ranked for at least six years to bring his

loss to the present and remain free of significant injury .. If all of those possibilities are taken into o account and dealt with as the High Court suggested then the result, the defendant submits, would

make success a slim chance. I think the significant probability and the more appropriate way to C) proceed is to arrive at an assessment of the chance of reaching the top with those factors in mind.

Once there, the future for a successful player is various as evidenced by the different paths of

Rodney and Brett Martin as well as Geoffrey Hunt and Kelvin Smith to whom I shall refer in a

moment. Rodney Martin has sustained a hip injury and is on a coaching scholarship at the

Australian Institute of Sport and expects to make his future as a professional coach. Brett Martin

continues to play and at the time of giving evidence had just won the World Open with his sister

and Rodney Eyles. Rodney Martin had attracted lucrative endorsement contracts whilst Brett had

settled on a more conservative endorsement program. Winning in international tournaments and !

10

the undoubted glamour associated with the family name as well as the fortuitous expiration of

certain endorsement contracts when he won his title all contributed to the value of Rodney

Martin's contracts.

When a player decides to retire from professional squash as a player there are

opportunities for coaching particularly outside Australia. Mr Amos had recently been coaching

in South Africa and thought that the plaintiff would have J?ade a good coach. He had influence

which he would have used in his favour. Kelvin Smith had been coaching in Germany. There are

it seems less financially rewarding coaching positions available in Australia than overseas and the o

best opportunities are within the Australian Institute of Sport. In Kelvin Smith's case he made

some income from the "pro" shop as an aspect of his coaching contract in Germany. He had o

played for some years internationally and had been ranked at his highest as No 9.

There are numbers of negative factors which the defendant has emphasised, for example,

that the plaintiff would have been in competition with his brothers during this period, that he might have been injured in the game apart from the usual risks of injury and that the endorsements o might have been no better than Brett's if a~ good. On the positive side there is the respected

opinion of Mr Amos who had coached many world champions and had seen the plaintiff in the

period prior to his injury with his brothers and other world rated players, his appropriate o

psychological profile and his membership of a famous squash playing family which, the evidence

suggested, would have led to enhanced squash related commercial opportunity.

I assess the probability that the plaintiff would have achieved success as a world ranked

international squash player at 60%. The evidence suggested that the playing career of a

professional squash player is approximately ten years after which a further five years as a

professional squash coach could be a career progression. This latter figure is quite variable,

Mr Amos coaching into his 70s and Kelvin Smith moving away early from coaching into another 11

commercial enterprise. Had the plaintiff achieved the success that he contends for then I think

the evidence supports a conclusion that he had very good prospects of taking up a coaching

position which I would assess at 80%.

On behalf of the plaintiff several options for the future were prepared by Mr Cooper a

chartered accountant and partner with Pannell Kerr Forster. All are based on the assumption of

a ten year playing career followed by a further five years as a professional squash coach. The first o option is based on the assumption that the plaintiff would have achieved a position between Rodney and Brett Martin and the average of their earnings has been used. Option 2 is based on

the assumption that the plaintiff would have achieved a squash playing standard the equal of his o brother Rodney Martin. Option 3 is based on the assumption that he would have reached a

standard the equal of his brother Brett Martin. In all three options Mr Cooper has used the

income earned by Kelvin Smith as a professional squash coach.

Mr Cooper has allowed for three alternatives in his calculations following the conclusion o of the plaintiffs putative squash career. The first calculation is based on the assumption that the plaintiff would not suffer any further losses after the completion of his squash playing and u coaching career, that is, that the income which he might make thereafter would be the equivalent of the income which he is likely to earn from landscape gardening. The second and third

calculations are based on the assumptions that he would continue to work to age 60 or 65

respectively after the completion of his squash career and would continue to suffer loss due to the

accident. The loss of income after the completion of the squash playing and coaching career is

the difference between what he can earn now as a landscaper and the average adult male wage.

Mr Cooper's calculations were thorough and very detailed and subject to searching cross­

examination by Mr G O'Grady and as a consequence some revision was made of those figures.

Opportunity was given for further cross-examination on the new figures but it seems that the 12 criticisms of the defendant had been met. I accept Mr Cooper's assumption that had the plaintiff engaged in an international squash playing career followed by coaching the chance that he would then have been able to earn an income of at least the average adult male wage until the age of 60 is reasonable. Even had he not engaged in coaching that would still have been the case. The plaintiff was unable to provide a proposed retirement age but taking all things into account I am prepared to assume that he would have retired at least so far as relevant income earning capacity is concerned.at the age of60. o Mr Cooper carried out his calculations ofloss of income from the date of the accident to

30 June 1996. He was requested to update those calculations to the date of judgment and has done so. The plaintiff is entitled to interest on his past loss of income at 6% per annum for 8% o years which is $91,183.

Past Loss of Income: as a Player

To 28.10.1997 (Ex 12A Schedule 1, p.1 as updated) 5289,468

Percentage probability: 60% TOTAL $173.681 0

Interest at 6%pa for 8% years $91,183 Loss of Future Earning Capacity 0 1. As a plaver: to 30 June 1999 (present value) $95;443 (Ex 12A Appendix 13 p.2 as updated)

Percentage probability: 60% $57.266

2. As a Coach (5 years) and Until Age 60 From 1 July 1999 (Ex 12A Appendix 13 p.2 as updated) $319,676

Percentage probability: 60% x 80% = 48% $153.444

TOTAL: $210.710 13

Both the loss of income as a coach and the loss of income until age 60 (being the

difference between what the plaintiff can earn now as a landscaper and the average adult male

wage) are equally contingent (80% probability of occurring) upon the plaintiff having achieved

the requisite success as a player. The loss of income until retirement is not dependent upon there

having been any coaching work and therefore has not been further discounted. As such the two

conceptually separate losses can be lumped together and are multiplied by the probability of

() achieving those outcomes (80%) and by the probability of achieving the requisite success and

income as a player (60%). o General Damages F or the pain and suffering and loss of the amenities of life associated with the injury to his

shoulder I award the plaintiff $23,000. The scarring is quite considerable and cosmetically

distressing for the plaintiff He also has the discomfort of the twitching in his eye and the

increased risk of skin cancer should his shoulder scars be exposed to the sun. I would award the

(~ plaintiff $35,000 for the pain and suffering associated with his scarringdisability. ~) He is entitled to interest at 2% on his past damages which I assess at $30,000. 2% over

8% years is $5,250.

Special Damages

The parties have agreed on special damages in the sum of $1713.20 which is allowed.

The plaintiff makes no other claims. 14

Conclusion

Pain and suffering and loss of the amenities oflife past and future $58,000.00

Interest on past loss ($30,000) at 2% per annum for 8% years $5,250.00

Special Damages $1,713.20

Past Loss of Income $173,681.00

Interest at 6% for 8% years $91,183.00

Loss of future earning capacity $210,710.00

TOTAL: $540,537.20

There will be judgment for the plaintiff against the defendant in the sum of $540,500. o

Unless there are submissions to the contrary costs should be paid by the defendant to be taxed.

o o