THE HIGH COURT
			1999 No. 3638P
BETWEEN
JAMES HENNESSEY
			PLAINTIFF
AND
MARY FITZGEARLD AND THOMAS FITZGEARLD
			DEFENDANTS
JUDGMENT of Mr Justice McCracken delivered the 13th day of December, 2000
	On 29th August, 1997, the Plaintiff was involved in a road traffic accident in which he incurred a serious injury to his right arm involving both the dislocation of his right radius at the elbow and the comminuted fracture of the ulna.  He also suffered a fracture of his right little finger and an injury to his left thumb and a soft tissue injury to his lumbar region.  In addition he had a head injury with lacerations on his forehead.  Liability is not in issue and accordingly this case comes before me solely as an assessment of damages.
	The Plaintiff is a qualified fitter and worked for some time in England and on the Continent.  In 1992 he returned to Ireland and took over a workshop where his father had carried on a business some years earlier.  He started his own business, buying old lorries, dismantling them and selling parts such as the engine and axles.  He then used the bodies of the lorries as the raw material for manufacturing skips of various types by converting the bodies into skips.  I am quite satisfied that at the time of the accident he had been intending to expand the business, and he had purchased some four acres of land and some machinery and equipment to enable him to do so.
	The Plaintiff was undoubtedly a skilled and hardworking fitter, and his involvement in the business was very much hands on and on the physical side.  He had little in the way of managerial skills and such books as were kept in relation to the business were kept by his wife.  I am quite satisfied that as a result of the injuries suffered by him, he is physically unable to carry out his pre-accident work.  He is capable of light physical work, but cannot carry out many of the functions which would be normally required of a qualified fitter.
	Since the accident the Plaintiff has tried to carry on the business in more of a managerial capacity.  Before the accident he had on occasion employed qualified fitters and for some time after the accident he brought in subcontractors to carry out the work.  More recently, however, he has changed the nature of the business somewhat and is only employing apprentice fitters.  The business now consists largely of manufacturing skips from bought in materials, which obviously involves considerably higher costs of material.
	The Plaintiff is seeking both general damages which I will deal with later, and damages for loss of earnings.  This latter claim is primarily based on forecasts of the profits which the Plaintiff would have made in his business had the injury not occurred.  It is then said that if the business collapsed, the Plaintiff would in any event have been able to obtain a job paying between £500 and £700 a week gross as a skilled fitter.  On the evidence before me I am satisfied that, by reason of his injuries, the Plaintiff would not obtain employment as a fitter, but on the other hand that he would obtain a job in one of the several occupations suggested by Mr Desmond White with an income of between £180 and £280 a week.
	I have been furnished with evidence from accountants on behalf of both parties in regard to the Plaintiff’s business.  Unfortunately, I found the evidence of the Plaintiff and of his wife to be very vague in this regard.  There have been no audited accounts of the business, and in my view the figures which have been produced could not be treated as reliable.  Accordingly, the accountant’s evidence is only of slight assistance.  However, I am quite satisfied with regard to two matters, which give rise to some considerable difficulty.
	Firstly, the one clear picture which came from the Plaintiff’s evidence is that, rightly or wrongly he is determined to continue the business if he can possibly do so.  Secondly, the accountants all agree, and indeed it seems clear from such accounts that exist, that the business as carried on at the moment by the Plaintiff is not viable.  We have, therefore, a Plaintiff who is determined to carry on a business which is losing money at a considerable rate and has no real prospect of being turned around.  Causing even more difficulty is the question of whether, even if the accident had not occurred, the business would have prospered in the way put forward by the Plaintiff.  On the Plaintiff’s own figures, which admittedly are very questionable, the net profit made by the business up to the time of the accident was very small, and there is no doubt the Plaintiff could have made considerably more money by working for somebody else.  The Plaintiff’s accountant has done his best in producing projections, but as I take the view that these projections are based on very doubtful actual figures, I would not be inclined to rely on them.  My own view is that the probability is that the Plaintiff would never have made as great an income from his business as he would have made had he sought employment.
	The first point I have to consider is the Plaintiff’s claim for loss of income to date.  He is claiming that the Defendant must compensate him, not only for the estimated earnings or profit which he would have made, but also for the losses which in fact were made by the business.  These losses amount to over £35,000.00 since the accident.  The Plaintiff chose to try to continue the business after the accident.  That was  his choice, and clearly it was the wrong choice.  However, I do not think that the consequences of that wrong choice can be visited on the Defendant.  It is clear from the evidence that the Plaintiff has for some considerable time been told that this business could not succeed, and has ignored all advice given to him, and apparently still intends to continue to ignore it.  He is, of course, entitled to do so, but he is not entitled to a free run at the expense of the Defendant.  Accordingly, in relation to past loss of earnings, and on the basis that he ought to have shut down the business, I am prepared to award him the difference between earnings which he would have made as a fitter and earnings which he was capable of making had he sought employment when he was fit to return to work.  Indeed, I think this is being generous to the Plaintiff, because it is arguable that he should bear the entire loss which arose from him having decided to carry on the business.  I do not have clear evidence of what these amounts would have been in 1997 and 1998, and I can only estimate them.  I purpose to award him the sum of £300.00 a week in relation to the first year after the accident, when he was probably capable of very little work, and £200.00 a week in relation to the remainder of the time to date.  In round figures I calculate this at £41,000.00.
	In relation to future loss of earnings, I think that if the accident had not occurred, the Plaintiff clearly would have continued his business, probably for some years.  I do not think his income would have been as great as if he had been in employment, and I suspect that at the end of the day he probably would have had to give it up.  As I do not place any great reliance on the figures, I am in the  position that I can only try to make a educated guess as to the Plaintiff’s loss.  If he had not had the accident he would be able to find employment now at a wage of £500.00 to £600.00 a week gross.  I think I must discount that figure because the Plaintiff clearly would not have been in such employment, but would have been running his own business and having, in my view a lower income.  For the purpose of this calculation I would purpose to assess his income were it not for the accident at £375.00 per week nett, which would be about £450.00 per week gross, and to assess his present earning capacity at £225.00 nett leaving a nett loss of £150.00 per week.  Using a multiplier of 928 as per the actuarys evidence, this would give a capital value of £139,200.00.  Allowing a 10% reduction under Reddy -v- Bates for contingencies, which is very generous to the Plaintiff, I would award him £125,280.00 for future loss of earnings.
	There are further special damages agreed at £24,040.00 and there is also a claim that the Plaintiff should be reimbursed bank interest amounting to £10,000.00.  This bank interest arises partly because of the Plaintiff’s insistence on carrying on the business, which as I said ought not to be visited on the Defendant, but it also arises partly because he has had to borrow money to pay medical expenses and keep his family going to date.  I would propose to allow him half this amount namely, £5,000.00.
	Finally, in relation to general damages, the Plaintiff has suffered a serious arm injury and has ongoing pain in his arm and lower back.  This will undoubtedly continue into the future, and in the case of his arm, almost certainly will to some degree be permanent.  In addition, and perhaps more seriously, the Plaintiff has suffered serious depression since the accident, which I am satisfied is quite genuine, and is as a result of his injuries.  Indeed, his almost fixation with wanting to continue the business against all the odds is almost certainly an attempt to keep the depression at bay to some extent.  He has become very irritable and prone to bouts of uncontrolled temper and has poor powers of concentration. He is being treated on anti depressant and anti anxiety medication and the evidence of his psychiatrist is quite clear to the effect that if he cannot continue the business he will have protracted problems and may deteriorate.  Sadly, I feel this may well happen.  On this basis, I would propose to award him £40,000.00 general damage to date and £65,000.00 general damages into the future.
	Accordingly there will be a decree for a total of £300,320.00.