Ballard v Callaghan and Suncorp General Insurance Limited
[2001] QSC 254
•1/6/2001
SUPREME COURT OF QUEENSLAND
CITATION: Ballard v Callaghan & Suncorp General Insurance Limited [2001] QSC 254 PARTIES: RICHARD MICHAEL BALLARD
(Plaintiff)
PETRINA GAYLE CALLAGHAN
(First Defendant)
SUNCORP GENERAL INSURANCE LIMITED
(Second Defendant)FILE NO/S: 100 of 2000 DIVISION: Trial PROCEEDING: Trial ORIGINATING COURT: Cairns DELIVERED ON: 1/6/2001 DELIVERED AT: Cairns HEARING DATE: 7/12/2000 JUDGE: Jones J ORDER: 1. Judgment for the Plaintiff against the Defendant for the sum of $132,676.00. CATCHWORDS: DAMAGES – PERSONAL INJURIES – MOTOR VEHICLE ACCIDENT – LIABILITY AND QUANTUM – plaintiff trail motorcycle rider injured after collision with Mitsubishi Pajero on unsealed, two-wheel track road – both plaintiff and defendant familiar with road and danger presented by “lack of sight line” - whether plaintiff contributory negligent - whether defendant negligent for failure to warn of approach – plaintiff diagnosed with compound fracture of right patella and minor grazes to left elbow and left thigh – plaintiff further injured right leg in subsequent fall from trail motorcycle – consideration of effects of subsequent accident in assessing impairment - degree of impairment assessed by orthopaedic surgeon at 3% of whole person relative to patella and 7% of whole person relative to rupture of anterior cruciate ligament – plaintiff awarded damages for pain and suffering, past and future economic loss, past and future gratuitous care, special damages and future treatment.
COUNSEL: Mr Pope for the Plaintiff
Mr Webb for the DefendantsSOLICITORS: Dean Bolton Solicitors for the Plaintiff
Pescott Reaston Solicitors for the Defendant
The plaintiff, who was born on 3 December, 1970, was injured in a motor vehicle collision on 29 October, 1995. He was then almost 25 years of age.
At the time, the plaintiff was riding a Yamaha trail motorcycle which collided with the front driver’s side of a Mitsubishi Pajero driven by the first defendant.
The plaintiff sues the defendant for damages for personal injury alleging negligence against the defendant on a number of grounds. The defendant denies negligence and raises contributory negligence on very much the same grounds pleaded against her. The issues of liability and quantum are both in dispute.
The collision occurred on a road known as the Old Cairns Track which linked Gordonvale with Malanda on the Atherton Tableland. The road was not in regular use by motorists save for those who had properties in the area and trail bike riders. The road was basically unformed consisting essentially of two wheel tracks with heavily grassed verges.
The point where the collision occurred was on the crest of a steep rise known as Lamin’s Hill. The sight lines for persons traversing this section of road over the crest are quite poor because of the steepness of the hill and the fact that at the crest the road also curves to the right in accordance with the plaintiff’s line of travel. Various estimates have been given as to the length of the sight line but it is not necessary to make specific findings on this distance since much would depend on the size of the vehicle travelling and the state of the foliage which might interrupt the view around the curve. The plaintiff claims the distance separating the vehicles when he first saw the Pajero was 10 to 15 metres [1]. The defendant claims the distance separating the vehicles when she first saw the motorcycle was 20 metres. [2] Nothing really turns on this difference of estimate made in circumstances where such estimates are, in any event, notoriously unreliable.
[1]Transcript p.11/20
[2]Transcript p.149/52
The actual point of the collision was near to an entrance driveway to a log cabin occupied by the neighbouring land holder. Consequently, the trafficable area widened for the defendant’s vehicle on its left side. Photographs were taken of the scene some 6 to 12 months after the event (ex.8). Some challenge was made as to whether these photographs presented an accurate depiction of the scene at the time of the incident.[3] Other photos tendered were taken in August, 1998 (ex.7) and May 2000 (ex.5) after road grading and other works had been undertaken. In particular, an opening on the side of the roadway opposite the driveway to the log cabin, appears not to have been there at the time of the incident. Despite efforts by Mr. Webb of Counsel for the defendant to establish that the height of the grass on the verge was lower than is depicted in the photograph, I accept the plaintiff’s evidence that the height of the grass on the verge and centre of the roadway was much the same as depicted in ex.8. On any view the grass was of sufficient height to conceal the nature of the ground beneath and would present an uninviting terrain for a motorcyclist having to leave the wheel tracks.
[3]Transcript p.12/12
There was a suggestion that the surface of the wheel tracks was, at the time of the incident, rougher than as depicted in ex.8. I am satisfied that the wheel track surface was in sufficiently good condition so as not, of itself, to cause a distraction to the two motorcyclists who traversed the area at that time. The plaintiff described the position in the following passage of evidence[4]:-
[4]Transcript 47/10
“Well I’m suggesting to you on the ascent side, the side you were going up - there were significant ruts in both of the tracks, not just the left hand one or the right hand one? --- I wouldn’t call them significant ruts. They weren’t big enough to get the bike wheels stuck in or anything like that, ‘cause I ---
But you had to watch closely to make sure that you didn’t come to grief in the ruts, is that so? --- No. I wouldn’t say that. I was watching the corner. I was anticipating another bike coming around the other corner, sticking on his left rut.”
The other motorcyclist, Mr. LeFroy, gave evidence to similar effect that he had “no concern about the surface of the wheel track”, saying “it wasn’t too bad”.[5] The other witnesses who deposed to this issue (Messrs. Dempsey, English and Callaghan) were invited to make a recollection of the state of the road only on the day of the hearing and I find their evidence in this regard to be unreliable.
[5]Transcript 105/20
Both the plaintiff and the defendant were familiar with the road and the danger which the lack of sight line presented.
Both the plaintiff and Mr. LeFroy accepted that on their approach to the foot of the incline they were travelling at speeds between 60-70 kilometres per hour. As the plaintiff approached Lamin’s Hill he was approximately 100 metres in front of LeFroy. As he approached the crest he changed down two or three gears. He did so because he was aware of the danger of approaching the blind corner. He was travelling in the left hand wheel track.
The plaintiff, on seeing the Pajero, a distance he estimates of 10-15 metres in front of him, braked and attempted to move from the left hand wheel track to the grass verge. In so doing he lost control of the motorcycle causing the rear wheel to move to its right and the motorcycle to strike the bull bar of the Pajero on the front driver’s side. The impact threw the plaintiff onto the bonnet of the vehicle and he fell to the ground on the grass verge of the driveway to the log cabin on the passenger side of the vehicle.
The defendant drove the Pajero up the opposite incline in first gear at a speed she estimates at 10 kilometres per hour. She engaged first gear because of some mechanical problem with the vehicle’s second gear and because the third gear was not suitable for that incline and speed. She estimates the distance separating the vehicles, when she first saw the motorcycle, as being approximately 20 metres, though in an earlier statement she had said the motorcycle was more than one third of the way down the hill. According to the survey maps (ex.5) this would represent a distance that could not possibly be accurate. She described the motorcycle as “travelling fast”[6] and when forced to give an estimate said “60 kilometres per hour”[7]. This estimate of speed could not be accurate, having regard to the slight damage done to both vehicles on impact.
[6]Transcript p.149/59
[7]Transcript p.156/30
The defendant braked but apparently made no attempt to move her vehicle to the left where there was the opportunity for her to use the driveway of the residence. The defendant claims she had brought the Pajero to a complete stop before the impact. The plaintiff was “pretty sure” [8] the Pajero was still moving at impact. At any event the Pajero was still on both the wheel tracks at that time with the result that the motorcycle (if control had not been lost) would have to have gone into the grassed verge to pass by. She said in evidence that at that point the area was sufficiently wide for two cars to pass without colliding but that either they would have to be travelling slowly or one be virtually stationery.[9] Prior to the point of impact the foliage on the defendant’s left may have reduced her opportunity to leave the road. But her own evidence[10] locates that point at the entrance to the driveway where it seems to me there was ample opportunity for her to move to her left.
[8]Transcript p.11/50, 51/30
[9]Transcript p.158/30
[10]Transcript p.154/10-30 – reference to the “white patch” depicted in ex.8
After seeing the motorcyclist, the defendant was not aware that the motorcycle went into a slide with its rear wheel moving to the right before impacting with the Pajero’s bull bar and bumper bar in the front driver’s side. Immediately after the impact, the defendant stopped her vehicle, deployed the handbrake and alighted from it. She heard the approach of Mr. LeFroy’s motorcycle and went a short distance forward, waving to warn him of the presence of her vehicle. Mr. LeFroy was able to bring his motorcycle to a stop some 5 metres short of the Pajero. In these circumstances there is no force in Mr. Webb’s argument that if LeFroy could stop, the plaintiff'’s failure to do so indicates higher speed on his part.
On all the evidence I find that the Pajero had either stopped, or was near to stopping, when the impact occurred. I find the Pajero was then occupying all of the trafficable carriageway from the perspective of the motorcyclist travelling in the opposite direction. I find that there was clear ground to the left of the carriageway available for use by the Pajero if it wished to leave the carriageway. No warning appears to have been given by the Pajero of its approach to this blind crest in circumstances where it would occupy the whole of the available carriageway.
No warning was given by the plaintiff motorcyclist either, though there is evidence that it, being powered by a two stroke engine, was noisy in any event. It was the noise of Mr. LeFroy’s vehicle which drew the defendant’s attention to its presence.
I find that the motorcyclist was travelling at a speed of approximately 20 kms per hour which is consistent with the damage done to the bull bar and bumper bar on the Pajero. However, I find that even this speed was too fast for the sight line that was available to him. This fact reduced the time for each driver to react to the presence of the other.
The defendant had a higher obligation in all the circumstances because her vehicle was occupying all of the available carriageway when she was aware, or ought to have been aware, that other vehicles, including trail bikes were likely to be using the road. In such circumstances she ought to have warned of her approach to this crest which was known to her to have reduced sight lines and been prepared to move to her left if confronting another vehicle. I find that the defendant was negligent in her failure to warn of her approach in the circumstances and in her failure to take appropriate action to avoid the collision when confronted with the presence of the plaintiff’s motorcycle.
I find that the plaintiff was guilty of contributory negligence by reason of his travelling at too high a speed in the circumstances where he knew the danger associated with this section of the roadway.
I apportion the responsibility for the collision, two thirds against the defendant and one third against the plaintiff.
Quantum
Following the impact, the plaintiff remained at the side of the driveway for a short period of time, during which there was a discussion as to whether an ambulance should be called and discussion about the repairs of the damage to the defendant’s vehicle. Then with the assistance of Mr. LeFroy the plaintiff mounted his motorcycle intending to ride to Yungaburra to the home of LeFroy’s sister. After travelling approximately 100 metres he was met by other friends in a vehicle. He was having difficulty riding the motorcycle so he went to the intended destination in the friends’ car.
He was taken to Atherton Hospital and then transferred to Cairns Base Hospital. There he was diagnosed as having a compound fracture of the right patella and minor grazes to his left elbow and left thigh.
He underwent surgery which involved tension wiring of the patella to stabilise it. The healing process was slow and led to a complication of loss of quadriceps function. A prolonged program of physiotherapy gradually improved strength and movement in his right leg but the plaintiff continued to suffer debilitating pain in his knee and loss of range of movement.
The fixation wires were removed on 25 February, 1997. The plaintiff claims that he was incapacitated for approximately 3 months following this procedure. He returned to part-time work activity with VB Paint and Panel works at Cairns. The proprietor of this business, Glen Naylor, is a friend of the plaintiff and this allowed some flexibility in the work arrangements between them which will be discussed later. The plaintiff, however, did continue to suffer considerable limitation in his capacity to work by reason of the pain and loss of movement in his right leg.
On 28 September, 1997 the plaintiff had another fall from his motorcycle which caused further injury to his right leg. He attended Cairns Base Hospital and was discharged on crutches after being given pain relieving treatment. On 20 March, 1998 he underwent athroscopic examination which revealed severe chondromalacia patella which was probably due to the first incident. The whole of the surface of the patella was athroscopically shaved to smooth it.
The athroscopic report in addition notes the following –
“Both menisci intact. Femoral and tibial surfaces smooth. ACL (anterior cruciate ligament) intact, but slightly stretched and attenuated. PCL (posterior cruciate ligament) not visualised.”
Between the incident, the subject of this claim, and the fall of 28 September, 1997 the plaintiff was examined by an orthopaedic surgeon, Dr. Andrew Graham. His findings upon the plaintiff’s complaint that “his knee does give way occasionally but does not lock and has only had a couple of episodes of knee effusions” was that there was “no sign of instability of the knee and there was mild crepitus on palpitation of the patella” [11]. Dr. Graham again examined the plaintiff on 3 November, 2000. On this occasion his examination revealed that the plaintiff’s “right knee ACL felt significantly lax although there was some mild laxity on the left side”.[12] Dr. Graham at this stage had not apparently been shown the findings of the arthroscopic examination referred to above because he recommended such an examination be undertaken for the very purpose for which it had been done previously. Notwithstanding this limitation in the information available to Dr. Graham he expressed the opinion that the ACL was ruptured in the second accident, although he appears to have had some doubt about it. He said –
“If the ACL has been ruptured, it appears to be most likely due to the 1997 accident. A direct blow to the front of the knee causing patella fracture with the knee bent, most commonly produces the rare PCL rupture and at the time of the examination in 1996 I felt that his cruciate ligaments were reasonable.”[13]
The basis of Dr. Graham’s opinion is somewhat tenuous since he was not asked to consider the mechanics of the second fall and he was not questioned about the possibility of ACL damage. His apportionment of 50% of present disability being due to the second incident was not particularly challenged. Nevertheless, the findings of the athroscopy examination that the ACL was intact but slightly stretched and attenuated and the lack of any evidence about any increased instability in the plaintiff’s knee rather suggests that attention needs to be given to the consequences of the second incident.
[11]See ex.2 report 12.11.96 at p.2
[12]Ex.2 report 10.11.00 at p.2
[13]Ex.2 report 10.11.00 at p.3
The plaintiff’s own assessment of the effect of the second injury is that the knee swelled up and he was on crutches for about one month. But after that there was no significant increase in symptoms. Dr. Shepherd in reliance upon Dr. Graham’s diagnosis of ACL rupture gave an apportionment of disability between the two injuries according to AMA tables of 3% of whole person for the patella and 7% for the rupture of the ACL. He described the major consequence of ACL rupture as being instability. Dr. Shepherd, in cross-examination discussed the question of instability and its effect and treatment in the following passage of evidence:-
“Or is it one of those you advise against surgery because the extent of the instability isn’t sufficiently great? – Oh, the – oh, I can’t give a simple answer to that question in that the degree of instability that people experience is not necessarily related to how mobile their knee feels when I examine it. Just let me have a look at my – yeah, it’s not necessarily – if I examine somebody’s knee and it feels quite loose to me, it is not necessarily true that they will have severe and symptomatic instability. The reason is somebody’s muscle control and there are people out there in the community who have got a rupture of their cruciate ligament and an unstable knee but it never bothers them and some of them aren’t even aware that they have the injury --- so that it’s – people’s muscle control really impacts very greatly on how symptomatic they are and it also depends a lot on what their demands are and cruciate direction, so if you’re walking in a straight line generally the knee will function fairly well, but if you’re changing direction a lot and the classical situation is playing in the back line in football where they’re changing direction all the time whereas the forwards run in a straight line and get tackled. So if you are playing as a back and you don’t have a cruciate ligament, you will be – it will bother you very much more than if you’re playing as a forward where you’re running in a straight line, so that it’s often a complex decision as to whether somebody’s cruciate is reconstructive or not and it really comes down to, how often does this person’s knee give way whilst they are doing the activities that they normally do.”[14]
[14]Transcript p.126/5-40
I find that it was the second incident that caused the stretching and subsequent attenuation of the anterior cruciate ligament and that this condition is likely to cause instability in the knee. However the direct effects of that condition are somewhat uncertain. The plaintiff has made no significant complaint of instability in his leg either prior to the second incident or since.
Prior to the subject injury the plaintiff had been in good health and had not suffered any injury or medical condition likely to interfere with his long term capacity for work. The plaintiff does not complain particularly of instability in his knee. In his quantum statement he identified the continuing problems as loss of flexibility, strength, mobility and durability, constant aching, pain and swelling which is more intense with increased activity[15]. The use of heavy work boots aggravates this pain. The plaintiff also has some scarring on his knee, 4 inches wide by 6 inches long which he finds cosmetically embarrassing. He claims also that his injuries have affected his pursuit of recreational interests – motorcycling, football, swimming – and his domestic and personal relationship with his wife. Some of these claims appear to me to be overstated but there is no doubt the injury will cause continuing and increasing difficulty in the future.
[15]Ex.1
The plaintiff’s work practices were subject to clandestine videotaping over a period of 5 days. The results were edited to produce a recording of some 1 ½ hours duration depicting what was thought to be examples of inconsistency between the activities and the plaintiff’s complaints. Mrs. Coles, occupational therapist, who viewed the ‘highlight’ tape found that it confirmed most of the information provided to her. [16] I agree with that assessment. What the video did not show was the fact that the plaintiff had to rest during the working hours and on occasions apply ice packs to his knee.
[16]Transcript p.108/45
Taking all these matters into account I make an allowance for pain and suffering and loss of amenities of $40,000, half of which is attributed to the past period. The allowance for the past attracts interest at 2% for 5 ½ years adding a further component of $2,200.00.
Economic Loss
For approximately 16 months prior to the incident the plaintiff was employed by Cairns Panel & Spray Works, during which time he earned a net amount of approximately $25,400.00. He was employed on a full-time basis as a tradesman’s assistant to a panel beater. His employment was terminated because of the duration of his absence from work consequent upon this injury. He was earning at the time approximately $370.00 per week net. It is likely that he would have continued in this employment either with his then employer or another employer in this industry. It was not until mid 1998 that he was able to return to normal employment and receive any equivalent pre-accident earnings. That is a period of 139 weeks.
The plaintiff left high school after completing his Year 11 and thereafter worked in various labouring type occupations. In 1992 he found part-time casual employment as a tradesman’s assistant in a panel beating workshop. This appears to have suited his aspirations because he thereafter has sought employment only in that field. The plaintiff does not express any intention to complete an apprenticeship in order to gain trade qualifications. His employment with Cairns Panel & Spray Works in July 1994 was his first full-time job of any duration.
October 1995 – June 1998
After his convalescence from this injury the plaintiff approached his friend, Glen Naylor, the proprietor of VB Paint and Panel Works to use those business premises to carry out work on his own car and the vehicles of his friends. This was done without remuneration, but the plaintiff did odd jobs in the panel shop in exchange for the use of premises and equipment. On 1 April, 1996 the plaintiff resumed effective employment with VB Paint and Panel Works working on a part-time casual basis and receiving payments commensurate with the amount of work which he did. Between then and mid 1998 the plaintiff’s actual income from this type of work during this period was $5,800.00.
The total period for which the plaintiff can claim a reduced working capacity has to take into account the 13 weeks for which he was off work by reason of the second injury. I would therefore allow for this period of part loss from the date of the incident to June, 1998 - 127 weeks at $370.00 per week. This calculation suggests an allowance rounded off to $40,000.00.
July 1998 - Trial
From July 1998 to the present the plaintiff has continued to work for VB Panel and Paint Works but for lesser hours than would be available to an able bodied tradesman’s assistant. The extent of the reduced hours has been quantified only in a most general way. The plaintiff claims that he works on average 25 hours per week as opposed to the normal 40 hours per week. During the days in which the plaintiff’s activities were the subject of a video recording he was noted to have worked – or at least was present at his place of employment – between the hours of 7.30 am and 4.00 pm on three of the days and between 8.00 am and lunchtime on the other two days.
During this period the plaintiff carried out some work on his own behalf under the style of “Ballard Rust N Panel”. The plaintiff was included as a partner in the business of VB Paint and Panel Works but this arrangement appears to have been unworkable and was abandoned. There was no accountancy evidence which might have given some credibility to a calculation of the plaintiff’s income during this period. However, it seems to be accepted on both sides that the plaintiff’s receipts from VB Paint and Panel amounted to $29,257.00. It is difficult to determine what is the tax liability on this amount and whether that liability (if any) has been met. The incidence of tax for present purposes can be ignored.
As to the plaintiff’s potential earning capacity for this period, had he not been injured, there is a marked difference between the submissions made on his behalf and on behalf of the defendant. The plaintiff suggests a calculation of approximately $71,000. The defendant suggests a range of between $200-$400 per week.
Account must be taken of the vagaries of employment in this industry, the plaintiff’s chequered pre-accident work history and the improbability that he would successfully go into business as a contractor on his own account. Doing the best I can with the evidence I assess the potential earnings for the plaintiff, had he not been injured, at no more than $450.00 per week net. For the period 1 July, 1998 to date of trial – 127 weeks – the plaintiff’s earning potential I assess at $57,150.00. From this sum has to be deducted the amount actually earned leaving a balance rounded to $28,000.00.
The total allowance then for past loss of earnings will be $68,000.00. After making a deduction for the receipt of Centrelink benefits of $27,335.00, the amount of which $40,665.00 shall bear interest at 5% for 5.25 years requiring a further allowance of $10,700.00.
Future Loss
For the assessment of the plaintiff’s loss of earning capacity into the future I take into account the level of disability which he now suffers which is particularly described in the report of Mrs. Coles whose conclusions I accept. His limitations include the following:-
· Mr. Ballard was limited in his endurance for mobility, agility, sustained gross static positioning, and performing tasks in confined spaces in awkward postures involving his right knee.
· Although his load handling was sufficient for the occasional lifting of heavy loads, his asymmetrical method of load handling in combination with stooping to avoid squatting could be expected to place him at risk of strain and, at worst, damage to his back.
· Mr. Ballard is fortunate in obtaining work with a prior employer/friend who is supportive of his difficulties. In the event his services were terminated, Mr. Ballard could be expected to have difficulty obtaining alternative work compatible with his abilities and deficits.
· Whilst he would not be unemployable, Mr. Ballard’s range of occupational options would be significantly narrowed.
The fact that with consideration and some rest periods he is able to remain at the work place for the period of a normal working day and the fact that his continued work is probably the best form of therapy to ensure the maintenance of quadriceps muscle strength, the plaintiff should almost be able to achieve full time employment. At the same time there is no doubt that the plaintiff is at risk in the open competitive labour market and, should he lose the support of his current beneficial employer, he will probably have periods of unemployment between alternative jobs. I must take into account also the fact that by reason of the injury suffered in the second accident the plaintiff’s working life may have been shortened by instability in his knee, which is the consequence of that incident. I will reflect the discounting for that reason by reducing the potential working period from 30 years to 20 years (multiplier 666). I assess the diminution on the plaintiff’s earning capacity of $75.00 per week. This being so, the allowance I would make for loss of future earning capacity is $50,000.00.
Superannuation
In this case the plaintiff seeks loss of the employer’s superannuation contribution on the loss of income which he has demonstrated. The calculation of this item for both past and future periods must take into account the fact that the plaintiff has for part of the past period received income as a contractor rather than as an employee. There is a likelihood also, given the nature of the work that he does and the industry in which he is engaged, that this will apply to some future period. The starting point of the calculation is to apply 7% to both past and future allowances i.e. to the total of $68,000.00 but this amount would need to be discounted to take account of the factors that I have just mentioned. The allowance I would make in the circumstances therefore is $4,000.00.
Carer’s component
At the time of this incident the plaintiff was living with his fiancee, Colleen Vaughan, with whom he has continued a de facto relationship. The claim for gratuitous care relates to the services provided by the plaintiff’s de facto wife and by his mother who stayed with them for approximately one month immediately after the accident. The parties have agreed on the quantum of past care, essentially accepting the accuracy of the care needs set out in the report of Mrs. Helen Coles [17]. Mrs. Coles opines that the plaintiff would have need for assistance of a few hours a day for approximately 4 weeks and thereafter a few hours per week. Having regard to all of the evidence, particularly the plaintiff’s need to continue exercising, I would allow 48 hours of care for the immediate post-operative period and thereafter 2 hours per week for the 5 years since the accident – rounded off, that is a total of 600 hours at the agreed rate of $8.50 – totalling $5,000.00. This sum attracts interest at the rate of 5% for five years leading to a further component of $1,250.00.
[17]Ex. 2 Report 26.10.99
For the future period the plaintiff, in my view, requires assistance only in the very heavy work associated with domestic life. The details of the amount of assistance required as spoken of by Ms. Vaughan in her evidence, seemed to me to relate more to domestic chores rather than necessity. I would allow one hour per week for a period of 30 years (multiplier 822) at the agreed rate of $10.00 per hour and round that sum off to a total of $8,000.00.
Future Treatment Expenses
The medical opinion is that the only significant treatment which the plaintiff might face in the future relates to the injury to his anterior cruciate ligament. That is an injury for which there is no compensation in this case. The plaintiff no longer takes any tablets or medications but there is a likelihood that in future he may need something for pain relief. There is also a need for him to consult physiotherapy from time to time to review exercise regimes at a relatively small expense. For this a general allowance should be made which I would assess in the sum of $1,000.00.
Special damages including interest is agreed at $8,864.00.
In summary the compilation of the allowance will be as follows:-
General Damages $ 40,000.00
Interest thereon $ 2,200.00
Past Economic Loss $ 68,000.00
Interest thereon $ 10,700.00
Loss of earning Capacity $ 50,000.00
Loss of superannuation benefit $ 4,000.00
Past Care $ 5,000.00
Interest thereon $ 1,250.00
Future Care $ 8,000.00
Future treatment $ 1,000.00
Special Damages $ 8,864.00
Total $199,014.00
Reducing the assessment of damage by one third to take account of the plaintiff’s own responsibility for his injury, I give judgment for the plaintiff against the defendant for the sum of $132,676.00 (2/3rd of the total ).
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