| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BATTEN -v- SMITH [2003] WADC 101 CORAM : GROVES DCJ HEARD : 4-7 MARCH 2003 DELIVERED : 9 MAY 2003 FILE NO/S : CIV 2081 of 1999 BETWEEN : JOSEPH WILLIAM BATTEN Plaintiff
AND
STEVEN JAMES SMITH
Defendant
Catchwords: Damages - Assessment - Personal injuries - Cervical injury causing chronic pain and subsequent depression - Impact on future employability - 54 year old welding supervisor/weekend farmer
Legislation: Motor Vehicle (Third Party) Insurance Act 1943, s 3C
Result: Total damages $662,389.16
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Representation:
Counsel:
Plaintiff : Mr D R Clyne
Defendant : Mr D R Sands
Solicitors:
Plaintiff : D G Price & Co
Defendant : Talbot & Olivier
Case(s) referred to in judgment(s):
Hendrie v Rusli [2000] WASCA 249
Southgate v Waterford (1990) 21 NSWLR 427
Wylde v 'Arriaza, unreported FCt SCt of WA; Library No 970359; 23 July 1997
Case(s) also cited:
Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) Aust Torts Reports 81-043
Boyd v Fremantle Steel Fabrication, unreported; FCt SCt of WA; Library No 9702408; 3 June 1997
Jongen v CSR Ltd & Anor (1992) Aust Torts Reports 81-192
Lawson v Flavel [2001] WASCA 272
Medlin v The State Government Insurance Commission (1995) 182 CLR 1
Morris v Zanki (1997) 18 WAR 260
Newman v Nugent (1992) 12 WAR 119
State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997
Ta v Lucky Import & Export Co Pty Ltd [2002] WASCA 65
Thomas v O'Shea (1989) Aust Torts Reports 80-251
Van Gervan v Fenton (1992) 175 CLR 327
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1 GROVES DCJ: On 31 July 1997 the plaintiff was driving his Toyota Land Cruiser in an easterly direction along the inside lane of Walter Road, Morley, approaching the intersection at Beechboro Road. Suddenly, and without warning, the defendant drove his Ford Laser motor vehicle in a southerly direction out of a car park located near the corner of Walter Road and Beechboro Roads, Morley, between two other motor vehicles that were both in a stationary position in the outside lane of Walter Road and then collided heavily with the motor vehicle driven by the plaintiff ("the accident").
2 The defendant admits that the accident was solely caused by his negligence. 3 As a result of the accident the plaintiff sustained injury and suffered loss. The action proceeded by way of assessment of damages.
Plaintiff's history 4 The plaintiff was born in the United Kingdom on 18 February 1949. He left school at age 15 years and shortly after migrated to Western Australia with his parents. He took employment with Metters at Subiaco and there learned his trade as a welder. He was continuously employed in that occupation save for a period when he operated a business as a fish monger. In 1990 he returned to his trade and worked with Perth Wrought Iron. In April 1990 he sustained a low back injury when he had an accident in the course of his employment. He had medical and chiropractic treatment and his symptoms resolved quickly, culminating in a final medical clearance after two or three weeks. However, his employment was terminated apparently because of his back injury. 5 He was out of work for a couple of weeks before taking employment as a bricklayer with his brother-in-law. He worked at this occupation for approximately 18 months until one day when climbing down a ladder he experienced the sudden onset of acute low back pain with right sciatica. He sought chiropractic treatment again but it was apparent that on this occasion the injury was more severe. Subsequent investigations showed up the presence of disc protrusion at L4-5. On 3 January 1992 he underwent a right L4/5 laminotomy and discectomy and this brought about significant relief of his symptoms. 6 The plaintiff was off work for approximately 12 months when he was offered employment at Vetters (which became Vista Visuals) to manage their welding shop. He commenced with them in early 1993 as a
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welding supervisor. By this time his back condition had stabilised, although he continued to have a dull aching in his lower back. This did not restrict him from undertaking his duties as a welding supervisor even though the position involved a hands on role including welding and moving materials, construction of racking and maintenance of equipment. On one occasion in 1994 he suffered an attack of back pain and sciatica which was exacerbated when he was climbing racking. Radiological imaging revealed a recurrent disc protrusion at L4/5 on the right of moderate size. This settled down with conservative treatment. Other than that occasion he experienced no difficulty in the work environment although he did take care in his work practises to avoid the risk of injury to his back. 7 In about 1993/1994 the plaintiff and his wife purchased a small farm of 100 acres at Toodyay. They moved from their home at Hillarys to live in a house on the property. This required the plaintiff travelling approximately one and a half hours to and from work each day. Although he was working 50-60 hours per week with Vista Visuals he worked in the evenings and at weekends on the property. He undertook fencing, fixed a windmill and erected a farm shed, manufactured and maintained farm equipment, completely renovated the house and painted it, constructed a large pergola, laid brick paving, installed reticulation and maintained approximately five acres of garden comprising an orchard, rose bushes and proteas. He ran breeding cattle on the property and some sheep. He put in crops and mowed and baled hay for summer feed for the cattle and annually ploughed and rolled fire breaks around the four kilometre boundary of the farm. 8 The plaintiff enjoyed the physical work both in his vocation and also on the farming property. The farm was purchased with the intention that he and his wife would eventually retire there.
The accident and its impact on the plaintiff 9 The accident occurred on 31 July 1997. He was shaken by the accident and experienced a headache. He attended his general practitioner, Dr Laney, at Hillarys and complained of severe pain with marked muscle spasm and limited movement of his neck and back. He was given a couple of days off work. He also had some low back pain in the area of his prior injury but this quickly resolved and was not an ongoing problem. He was initially treated with diazepam and feldene and was referred for physiotherapy. He ceased physiotherapy after about six months as he felt he was getting no benefit. At work over that period he
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continued to have pain in the neck which made it difficult for him to do his job. Welding requires the worker to wear a helmet which with the nodding of the head can be flipped down to cover the face and protect the eyes whilst welding and then flipped up when the welding is completed. This activity together with the weight of the helmet exacerbated his neck symptoms. Dr Laney prescribed Panadeine Forte for the pain and Naprosyn, an analgesic, to reduce the inflammation. As the months passed the pain worsened and he commenced getting migraine headaches. He worried about his job and being able to continue working, he worried about the mortgage on the farming property and this led to strain and difficulties in his marital relationship. He became depressed. About six or seven months post accident he broke down, shaking and crying. Dr Laney prescribed antidepressants in the form of an oral opioid for him. In February 1999 he came under the care of Dr Philip Finch who specialises in pain medicine. He was also referred to psychologist, Mr Alan Lazarus, and later he saw a psychiatrist, Mr Frederick Ng. 10 His worsening health and mental condition and the need to attend medical appointments required the plaintiff to use up his accumulated sick leave and holiday leave entitlements. When he told his employer that he could not continue welding another employee was engaged. The plaintiff continued to supervise the welding shop. However he could not even cope with that. His concentration and effort at work diminished. He took days off. Eventually his employment was terminated on 4 January 2002. Since then he has not been in paid employment. 11 The consequence of the accident has been ongoing chronic neck pain, migraine headaches and depression. 12 He was referred to a number of pain specialists for opinion regarding cervical fusion, however the opinions were conflicting and he could not be confident that if he had a fusion that would ease the pain in the cervical spine. 13 The plaintiff underwent medial branch blocks to the left C5/6 and C6/7 levels. That involved injections into the nerve to those joints. Subsequent radio frequency blocks gave some relief of short term duration. He later experienced numbness in the right upper limb and paraesthesia in the medial three fingers of the hand. He also experienced referred pain in the left upper limb. He continued to require the oral opioids. Dr Finch proposed that he have a morphine pump implanted operatively. He delayed and agonised over doing that. A spinal shunt was trialled and that was found to successfully control the pain state. He
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decided to proceed and have morphine pump implanted. In September 2001 he went into the Mount Hospital for three days when the pump was implanted. He contracted golden staph and that required him to go back to hospital for a week for further treatment. The medication made him nauseous and caused him to vomit frequently. The morphine pump has helped his pain state and he has, on his own evidence, pushed himself to test the limits. He has to attend every seven weeks for the tank to be re-filled. He generally feels nauseous during the first week after a top-up and has withdrawal symptoms in the last week before a top-up. 14 His current symptoms are that he finds it difficult to sleep at night, he is unable to walk on a rough surface because jarring brings on headaches, he is unable to run or jog, he has disturbed sleep with bad dreams and lashes out with his arms and legs in bed, he experiences pins and needles in his right hand, but more so his mental state of depression causes him to feel that he is not in control of his destiny and has caused fluctuating moods and this in turn gave rise to problems within his marriage. All these things have caused him much worry and anxiety and consequent depression. 15 After the accident the plaintiff endeavoured to keep up with his work activities on the farm, he tried very hard to cope but ultimately found that it was too much for him. He could not keep up with maintenance on the property, doing the tractor work which involved fire breaks, cropping, harvesting and baling, fencing work or gardening to the extent which he had previously been able to do. The property was put on the market for sale but it took approximately two years to sell which was achieved prior to Christmas 2000. In the meantime the plaintiff had his wife, son and son-in-law and friends to help with work on the property, mainly of a maintenance nature and gardening, so as to maintain the property in a going and saleable condition. He paid a neighbour to do cropping and harvesting/baling of hay for summer feed. 16 Since selling the property the plaintiff and his wife have been living in a house at Lower Chittering on a friend, Mr Elliott's property. The plaintiff had done a lot of work for Mr Elliott prior to his accident and to return the favour they were allowed to live there for the first year rent free. The arrangement since then has been that they pay half the rates and electricity by way of rental. The plaintiff's wife, save for when she had their children, has worked throughout their marriage as a courier driver. She continues in that employment. The plaintiff's activities are now confined to chores of a domestic nature, being cooking, cleaning, washing and ironing which he can do at his own pace and he can take rests as and
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when he needs to. He can do some gardening but confines himself to light activities only. He is unable to lift anything heavy and if he bends down he easily gets dizzy. Prior to the accident he enjoyed social outings involving dancing and family and other social gatherings. He finds that he cannot participate now in these activities and is very much withdrawn from them. Pre-accident he had always enjoyed his work as a welder and also the work on his farm. So much so that he only took holidays on one occasion from his work with Vista Visuals. It was his plan that he would work to age 65 years or thereabouts when he would retire.
Evidence of family members 17 Margery Anne Batten is the plaintiff's wife. They were married on 6 January 1968. They have two children, Mark Andrew Batten, born 26 February 1969 and Julie Anne Marchesi born 25 February 1974. 18 It was her evidence that prior to the plaintiff's low back injury which required surgery the plaintiff had always been a fit, healthy, active and hardworking person. After surgery and recuperation she observed his condition to improve dramatically and he took employment. At end 1993 or early 1994 they purchased the farm at Toodyay and moved there to live. The plaintiff was physically active in doing all the work required to be done around the property. That included fencing, cropping, ploughing, rock picking and making farm implements. 19 Following the motor vehicle accident the plaintiff complained of neck pain and his ability to do work on the farm was reduced. As the disability progressed she observed that the plaintiff's personality changed in that he was often angry and argumentative, moody, non-responsive and as his condition worsened he became teary and suicidal. Mrs Batten's concern was such that she took time off work to be with her husband through those times. With that came depression. The plaintiff has disturbed sleep and nightmares and hits out in his sleep and wakes Mrs Batten. Since the implant of the morphine pump that has helped ease his pain, however, by her observation, the depression is still with the plaintiff. It was her description that he is not the same person as he was pre-accident. 20 Mrs Batten did more physical work on the farm including feeding of cattle, mowing lawns, chopping wood, etc. The farm was to have been their place for retirement. However, their circumstances as a consequence of the plaintiff's condition compelled them to put the farm on the market.
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It was put to auction but failed to attract a buyer and thereafter was placed with agents until it was eventually sold on 16 November 2001. 21 The plaintiff assists with domestic chores such as cooking, washing and ironing albeit not to Mrs Batten's desired standard. Nevertheless they are activities which the plaintiff can occupy himself with. She has also noticed that the plaintiff's memory is not as good as it had been and that it started to diminish with his depression. Mrs Batten now does the driving whenever they travel anywhere together. She has driven the plaintiff to his many appointments which have involved travelling some 65 km from their residence at Lower Chittering to South Perth to see Dr Finch and Mr Lazarus. Prior to moving it was some 87 km from Toodyay to Perth. She like her husband prefers to live in the country and they prefer the quieter lifestyle and hence their choice not to move to the city. Whereas pre-accident they had socialised often they now do little socially other than with family or the friends on the property on which they are living. 22 Mark Andrew Batten the plaintiff's son, said that since the accident his father "is only a shadow of his former self". He has observed him to be in physical distress with pain and to be markedly depressed. He has become a lot less outgoing and withdrawn and whereas before the accident he could do all that he wanted on the farm he was only able to do a little prior to it being sold. 23 Since the accident he was called upon to assist on the farm moving stock, rock picking and doing work on the house by way of maintenance. He worked on the property sometimes for a whole day and on other occasions for half a day at a time. He estimated that overall every second weekend he spent a half day working at the property so as to keep it looking good over the period it was on the market. He was not cross-examined on his evidence. 24 Julie Anne Marchesi the plaintiff's daughter also described the changes which she has observed in the plaintiff since the accident. Her evidence was to similar effect as that of her mother and brother. She too has assisted and has often been called upon to drive the plaintiff either from Toodyay or Lower Chittering to the city to attend medical appointments. She estimated up to ten trips before July 2002 and two since then. Each round trip is of about two hours duration. She, too, has observed that since the morphine pump implant there has been some improvement in the plaintiff but still he suffers depression and has "good days and bad days".
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Evidence of fellow employees
25 Kenneth Hicks is the production manager at Vista Visuals and the plaintiff's immediate superior. The plaintiff commenced work with that business in 1994 as metal shop supervisor. Mr Hicks described the plaintiff as being an excellent employee of the "old school" who was excellent in his work. He described him as being the sort of person who could be left to do a job and he would know that it would be done properly. It was Mr Hicks' responsibility to review and set the plaintiff's remuneration each year. Pre-accident the plaintiff received pay increases each year. He was aware that the plaintiff had previously suffered a low back injury but by his observation the plaintiff had no disability and that did not affect his work in that there was nothing the plaintiff could not do that was required of him and he never noticed any restriction because of any back injury. He described the plaintiff as being a hands on worker. 26 After the accident the plaintiff had some time off and it was apparent to Mr Hicks that upon his return that his production level dropped off. He was however still a valuable employee because of his experience. For that reason the plaintiff continued in employment. However, his wages were reviewed in the light of his reduced abilities and the last couple of years prior to his termination the plaintiff was not offered a pay rise. His attendances at work reduced. Whereas he had been an employee who rarely took holidays he came to use up all his sick leave entitlements and holidays and eventually got down to half days at work attending intermittently until finally he was not coming to work at all. His employment therefore had to be terminated. 27 It was Mr Hick's evidence that an employee of the calibre as the plaintiff had been would now be earning about $50,000 per annum gross which includes overtime. 28 Keith Francis de Rozario worked at Vista Visuals from 1995 to end 2002 as a factory hand in the welding shop. He described the plaintiff, prior to the accident, as being a hardworking hands on person friendly, a good person who gave no appearance of having any difficulty in undertaking all that was required of him so far as work and maintenance of the premises was concerned. Post accident however, his work rate dropped off and the plaintiff complained about pain and dizziness and took time off work. By his observation the plaintiff's personality changed and he became a more moody person. He described an occasion about one or two years after the accident when the plaintiff broke down with pain and was openly crying.
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Evidence of friend and neighbour
29 Arthur John Elliott has known the plaintiff for 25 years and is a close friend. After the back operation he observed that the plaintiff got back to work well and was able to cope with all that he had to do on the farm and he described him as having been a workaholic on the property. Post accident however he observed that the plaintiff found it difficult to do anything heavy and he was gradually able to do less and less. Mr Elliott went up to the property and assisted on average one or two times per month when he worked for up to a day at a time fencing, stacking hay, attending to machinery, etc. 30 Prior to the accident the plaintiff had done a lot of work for Mr Elliott on a second house on his property at Lower Chittering (being the house where the plaintiff and his wife now live since selling their farm). In return and by reason of their friendship the arrangement was struck to allow the plaintiff and his wife to live in that house. Likewise, helping each other was a friendship arrangement, but since the accident the plaintiff has not been able to reciprocate with help on Mr Elliott's property as he had done previously.
The medical evidence 31 Dr Philip Finch gave evidence de bene esse on 20 February 2003. Dr Finch first saw the plaintiff on 10 February 1999. The plaintiff has since attended on him on forty four occasions. 32 It was his evidence, as had earlier been indicated in his report of 13 March 2002 (Exhibit 1) that he did not consider the plaintiff to be fit to return to any form of work. That opinion was arrived at on the basis that: "…we tried quite hard to get him back to work and actually succeeded for a while with adaption of his work environment and helmets and things, and then gradually he got worse over the time and certainly welding would not be…having a pump, morphine pump in the spine and welding wouldn't be compatible, and anyway, it appeared that any sort of excessive activity easily exacerbated his pain state and I just felt at that time that he was not fit to work in any way." 33 His report of 15 January 2003 concluded with a guarded prognosis that the plaintiff's condition is unlikely to change in the future. Quite possibly he will develop further degenerative changes in relation to his areas of previous surgery and injury. In the area of the neck he considered
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that there could eventuate neurological loss such as nerves becoming entrapped with weakness and the like in the limbs. He regarded the low back condition as a less serious problem but with the possibility of having arthritic changes developing in the joints. The implant of the morphine pump would also assist to control any pain emanating from the low back injury. However, the primary reason for the pump was because of the cervical spine pain. Cross-examined as to the likelihood of the plaintiff continuing in his pre-accident employment to the normal retiring age of 65 years it was Dr Finch's qualified evidence that, putting aside the motor vehicle accident it was "a possible scenario" that he may have stopped work prior to then due to deterioration of his low back. He conceded that there was such a risk although it was also possible that the plaintiff would have carried on maybe with exacerbations and some "grumbling backache on and off until retirement age". 34 He was referred to Dr Fong's report where the view was expressed that "there is a reasonable prospect of achieving a return to work…" Dr Finch qualified his concurrence with that view by noting the plaintiff's level of depression when he gets pain exacerbations and the need for psychological intervention. Whereas he considered the plaintiff had a good work ethic at the end of the day it was his opinion that the chronic neck pain and the associated depression made him unfit for work. 35 Dr Finch referred the plaintiff to Mr Barrie Slinger, orthopaedic surgeon, for opinion on a surgical approach to the disruptions of C5/6 and C6/7. It was his evidence that he was reluctant to consider surgery where the pain symptoms were of a multisegmental origin. In such circumstances surgery was not always successful. Whilst two level fusion was an option it "…could result in an aggravation of symptoms in both the proximal and distal spine or cause further degenerative change in the adjacent segments" (report dated 10 February 2003 – Exhibit 19). 36 The plaintiff was referred to Mr Peter Silbert, neurologist, whose EMG report (Exhibit 11 tendered by consent) indicated carpal tunnel syndrome, moderate in severity on the right and mild on the left. In April 2000 the plaintiff was admitted to hospital where Mr Slinger undertook bilateral division of the flexor retinaculum. Mr Slinger considered that the bilateral carpal tunnel syndrome was responsible for at least some of the plaintiff's symptoms in the upper limbs. The condition was on his evidence a result of the impact sustained in the accident. No other cause for the injury was indicated. He would have expected that the symptoms, ie, pins and needles in the hands, would have appeared within a month or so post accident.
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37 Cross-examined regarding the low back injury and subsequent operative treatment Mr Slinger agreed that there was an increased risk of recurrence or aggravation of that injury. Heavy work would increase the risk of aggravating the symptoms.
38 The plaintiff was referred to Mr George Wong, neurosurgeon, for further opinion. His report dated 9 August 2000 (Exhibit 6 tendered by consent) concludes: "Whilst anterior cervical fusion may help him, I think it is one of those situations where one could not guarantee the results. The down side is the possible complication and also the chance of making the pain worse." 39 Opinion was also sought from Mr Quentin Malone. His report dated 1 March 2001 (Exhibit 5 tendered by consent) states: "Mr Batten presents with a mechanical neck pain syndrome which is unremitting and continues to be severe. He appears to have a pain syndrome which is mostly arising from the C6/7 disc though there is a possibility some of his symptoms are arising from the C5/6 level. I have advised Mr Batten today that I do not believe a two level anterior cervical discectomy and fusion would be in his best interest. I believe the results available and his examination findings would lead to a 50 per cent chance of improvement and therefore this would be inappropriate to undertake." He went on to express the opinion that a single level discectomy and fusion at the C6/7 level might provide a two out of three chance of leading to significant improvement and stabilisation of the cervical spine. 40 Opinion was also obtained from Mr Peter Watson, neurologist. His report of 29 March 2001 (Exhibit 4 tendered by consent) expresses the opinion: "My own opinion regarding this situation is that fusing solitary levels of the cervical spine in the setting of neck pain and motor vehicle accidents has a very high failure rate and often leads to ongoing complications at other levels and further surgery. I think there would be little to indicate considering a fusion at C6/7 (or any other level for that matter in this setting) and unfortunately that would only leave (the plaintiff) with ongoing conservative treatment."
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41 Dr Thomas Berrigan, pain specialist, recommended in his report of 27 June 2001 (Exhibit 3 tendered by consent) that the plaintiff "might be a good candidate for an implanted intrathecal Morphine pump.
42 Dr John Laney has been the plaintiff's general practitioner since 1984. His practice is at Hillarys being the suburb where the plaintiff lived prior to his move to the farm at Toodyay. The plaintiff has continued to see Dr Laney as his general practitioner since that move. His reports were tendered (Exhibit 20). It was his evidence that he did not consider that the plaintiff has any work capacity, not even light sedentary duties. Whilst he agreed that it would be in the plaintiff's interests to do something within his capacity such might be confined to some type of self employment. The combination of the plaintiff's pain state, depression and the continuing medication, effectively made him unemployable and limited him in what he could do. As to the risk of exacerbation of the low back injury he said that there was some level of disability and that the plaintiff would have to watch what he did so as not to exacerbate that condition. 43 Andrew Craig Harper is an occupational physician to whom the plaintiff was referred on 8 November 1999 and again on 31 January 2003 for review. Dr Harper's reports of 11 November 1999 and 31 January 2003 were tendered (Exhibit 21). It was Dr Harper's evidence that he considered the plaintiff to be totally incapacitated for all forms of gainful employment. He held to that view for the reasons as stated by him: "This man has had a manual career. He now has got disabling pain which is interfering with activities of daily living at home and also physical work particularly. He is not able to do any of the occupations that he has had experience with. He is impaired in terms of his concentration with his medication and his medication through his morphine pump has been an important gain for him in terms of him having some control over his pain, but the side effects of that are that he does have impaired concentration and his endurance of any sustained activity is limited and he can't do lifting or carrying. So the sorts of occupations which would be open to him really are the sorts of things which his current symptoms really prevent him from doing. It's now a number of years since his accident. His course has been one of deterioration. There hasn't been any indication of improvement except for the improved control of pain following the installation of the morphine pump. So if we look at what has happened since the motor vehicle accident he
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was only coping at work with the benefit of morphine medication orally and then he got to the point that he couldn't continue and since stopping work he had bad pain with disabling depression as well and there was deterioration there which has now been stabilised by the morphine pump. So the overall course has been a poor one from the time of the accident and there is no indication that this course is going to reverse and I have no basis on which to predict that he is going to be relieved of the disability that he now experiences." 44 He considered that such work as the plaintiff might be able to undertake would be of an occupational nature only and would not be economically beneficial. In the open job market he considered him to be unemployable. 45 As to the pre-existing low back injury Dr Harper agreed that the plaintiff, had he been able to continue in his trade, was at risk of exacerbation or aggravation. On the other hand the plaintiff had been able to cope with back pain in the past and may well have coped with flare-ups in the future. 46 He expressly disagreed with Dr Fong's opinion that the plaintiff was suited to retraining into a lighter sedentary field of employment. He expressed his reasons for this as follows: "I have just expressed my view about what I feel he can do and what I feel he can do does not extend to being employed in the open job market at all. He is not able to compete for the reasons I have mentioned. A TAFE lecturer: he has not had any teaching experience in his career to my knowledge. This requires intellectual work and concentration and preparation, it requires standing, it requires a degree of energy to be able to be the teacher of other people, it requires a certain degree of endurance. He doesn't have any of those capacities now. A retail assistant requires standing, a certain amount of bending and reaching most likely. I don't see that his limitations in any way would allow him to perform that, certainly not a demonstrator in a hardware store. An estimator: this is going to require some intellectual concentration and I don't think that with his morphine pump which he is needing to manage his pain – and this is a man who has got ongoing pain, which for all of those of us who have had it know that it's distracting – and I think that I don't feel that there's any evidence that I have been
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able to get from this man that supports a claim that he could do any of the jobs outlined in the first three lines of this particular paragraph." 47 Dr Finch was concerned that the plaintiff was experiencing significant psychological complications associated with his injury and ongoing pain. He referred the plaintiff to Mr Alan Lazarus, a clinical psychologist. He first saw the plaintiff on 10 February 1999 and has since seen him on 106 occasions. Preliminary psychometric evaluation, in the form of self-rating questionnaires, initially indicated a "potentially serious" level of depression (BECK Depression Inventory) whilst his scores on the Dysthmia and Anxiety scales of the Million Clinical Multiaxial Inventory (MCMI) were significantly elevated. He was initially assessed as being "…rather emotionally vulnerable…and is manifesting signs of a rather severe depressive reaction with associated anxiety features. Mr Lazarus recommended and Dr Laney prescribed the antidepressant medication Effexor which the plaintiff continues to take. 48 On 28 June 2000 Mr Lazarus reported to Dr Finch (Exhibit 22) that the plaintiff's affective state had deteriorated quite markedly and so he referred him to Dr Frederick Ng, a consultant psychiatrist. Dr Ng first saw the plaintiff on 13 June 2000 and he has since attended on him on forty occasions. He diagnosed the cause of the plaintiff's depression as being the pain he was suffering and frustration consequent upon his loss of physical functioning. It was his opinion prognosis was poor for total resolution of the depressive disorder. He expressed the basis for this opinion as being: "Because firstly he continues to complain of the physical symptoms, which I will not provide you an opinion of because that is not my area of expertise. Secondly, it continues to cause him high levels of frustration and stress which he reports consistently and reliably. Thirdly, this has led to loss of functioning in a man who was previously very much a physical sort of guy. Fourthly, over time that I have known him, two and three quarter years, he has reported consisted (sic consistent) depressive symptoms which have waxed and waned but which in the main have nevertheless remained. And fifthly, in spite of psychological adjustment, all the treatment that he has had with antidepressants, psychotherapy with Alan Lazarus, support from his general practitioner and his family, sir, he continues to exhibit these symptoms and that is a concern to me."
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49 Further he considered the impact of the plaintiff's symptoms on his employability as being significant. He observed that the depressed state has impacted psychosocially and on his sociability, with variability in his moods, depressive and anxiety symptoms which left him as being an unpredictable candidate in employment. It would affect his concentration ability, his memory and his judgement. Consequently, he would be unsafe in the work place and these factors would very much affect his work ability.
50 He acknowledged that the medico/legal process would be perpetuating stress for the plaintiff but considered that finalisation was unlikely to have any substantial beneficial impact for the reason that it is the pain which is causative of the depressive disorder and the pain is likely to continue beyond finalisation of the claim. He considered that the plaintiff will require ongoing psychiatric support for some time beyond trial and he will also require to continue on antidepressant medication for the foreseeable future. 51 Geoffrey Wayne Thomas, a neurosurgeon, was called by the defendant. He had seen the plaintiff in April 1990 following his low back injury when he was employed by Perth Wrought Iron. He next saw him in January 1992 when he undertook the L4/5 laminotomy and discectomy. He saw him again on 29 November 1994 when the plaintiff suffered an episode of back and right leg pain. A CT scan on that occasion revealed a recurrent disc protrusion at L4/5 on the right which was of moderate size. The plaintiff underwent conservative treatment. Mr Thomas described the low back condition as a permanent injury and assessed a risk of between five and ten per cent of a recurrent disc protrusion at the same site. A recurrence could lead to the same symptoms which would require further surgery. Following the surgery in 1992 the plaintiff was placed at a slightly increased risk of degeneration and proneness to back pain due to the injury to the joint. He said that the more physically active the person was the greater the likelihood that there would be an aggravation of symptoms. He said there was a greater risk of recurrent disc protrusion. He described the recurrent disc protrusion in November 1994 as being of the type which the plaintiff was prone to suffer if the injury was aggravated. He noted in his report of 30 June 1998 that the plaintiff had told him that he "did suffer intermittent low back and right leg pain but never severe enough to stop him from working". (Reports Exhibit 25). 52 Cross-examined Mr Thomas said that while heavy lifting, bending and twisting and working in a difficult position for any length of time could lead to stress on the disc if these activities were avoided then the
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risk of further injury could be avoided. Furthermore, he said that with time the protrusion would diminish and the pain would slowly resolve. Whilst a physically active person was at greater risk that to some extent is counteracted where that person is otherwise fit, active, and not overweight. Maintaining the muscles in the low back would help to protect against further injury. 53 The defendant also called Dr Kim Fong, a specialist physician in rehabilitation medicine. He saw the plaintiff only on one occasion, 28 October 2002, for the purpose of providing a medical report to the defendant's solicitors (Exhibit 26). He confirmed that so far as the low back injury was concerned that left the plaintiff to being vulnerable to further injury in that area. 54 Mr Fong considered that the plaintiff had a moderate level of disability meaning that whilst there was some ongoing symptomatology in restriction of function it was not to such a level which would preclude the plaintiff from achieving "reasonable goals". He conceded that the plaintiff could not return to his prior occupation of welding. In his report he stated: "Theoretically, Mr Batten could receive retraining into a lighter sedentary field of employment, with possible options being as a TAFE lecturer, retail assistant/demonstrator in a hardware store and as an estimator. …I think that there is a reasonable prospect of achieving a return to work if Mr Batten was strongly motivated. However I get the strong impression that this man is fairly content in his current situation and I think that there would be little prospect of motivated (sic motivating) him to embark on what is likely to be an extended period of vocational rehabilitation." 55 He acknowledged in cross-examination that the plaintiff had demonstrated a good work ethic throughout his working years and that his "…history from the time of the early 1990's shows that he is actually a motivated person." Contrary to that however he concluded that the plaintiff would not be motivated to return to work based on his impression at the time that the reversed role of the plaintiff looking after the household duties "…seemed to be a comfortable arrangement for both of them." 56 Cross-examined as to the use of the word "theoretically" in his report (above quoted) he said:
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"Well, there are many social factors and personal factors which come into someone's capacity for work. Someone not only has to have a physical capacity to work but they have to, for instance, live in reasonable proximity to employment opportunities, have adequate transport, for instance, have adequate social network supports, stable emotional functioning. Many of those factors actually come into whether someone achieves a return to work." 57 In the context of Dr Ng's evidence to the effect that the plaintiff's depression was ongoing and was directly related to his pain state and the plaintiff's concerns arising from it Dr Fong conceded that would be a very significant matter precluding his returning to work "…if it was a sustained condition."
Substantive issues for determination 58 Two principal issues which both go to the plaintiff's future earning capacity were identified and which require determination. Those issues are: I will deal with each of these issues before proceeding to an assessment of the plaintiff's future earning capacity.
The pre-existing low back condition 59 At issue is whether, but for the accident, over the next 11 years to what was the plaintiff's intended retirement age of 65 years he would have been prevented or restricted from continuing in his occupation to that age. The defendant contends that a substantial discount should be factored into the assessment which reflects the possibility that the pre-existing low back condition may lead to temporary or permanent incapacity and/or earlier retirement. In support of this contention the medical evidence is consistent to the effect that the plaintiff is at risk of a recurrence or aggravation of his pre-existing low back injury at L4/5. Further the more physically active he is the greater the risk of aggravation of the symptoms. For example, heavy lifting, bending, twisting or working in a difficult
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position could lead to stress on the disc. Generally speaking also by reason of his occupation and the nature of the work that he was undertaking on the farm he was at even greater risk of exacerbation or aggravation. 60 He underwent the right L4/5 laminotomy and discectomy on 3 January 1992. He did not work for 12 months thereafter. He commenced work with Vista Visuals in early 1994. On 29 November 1994 he attended on Mr Thomas with back and right leg pain. He was then in the process of recovering from an attack of back pain and sciatica which had begun some two months earlier but which was improving at the time when he saw Mr Thomas. A CT scan done on that occasion revealed definite recurrent disc protrusion at L4/5 on the right of moderate size. Conservative treatment followed and the plaintiff went on to improve and continue in his work with Vista Visuals. From that time until the date of the accident on 31 July 1997 it is reported, according to Mr Thomas' report of 30 June 1998 (Exhibit 25(c)) that the plaintiff suffered occasional intermittent low back and right leg pain but never enough to stop him from working. 61 That history is consistent with and confirms the views of the medical witnesses to the effect that the plaintiff was at risk of exacerbating and aggravating the low back injury. 62 On the other hand the 1994 incident and subsequent intermittent pain did not prevent the plaintiff in his work either with Vista Visuals or on the farm. Whilst he was hands on and physically active in both areas he acknowledged that whilst he was mindful of his back condition he avoided doing things which might aggravate it. That is he quite sensibly took care to ensure that he avoided activities such as heavy lifting and bending and twisting which may have put stress on the disc. Furthermore the consistent profile presented of the plaintiff is that he was a person with a high work ethic, he enjoyed his work both in his vocation and on the farm and he was motivated. Only on one occasion pre-accident did he take his holiday entitlement whilst working with Vista Visuals. There was fencing, cropping, ploughing firebreaks, etc on the farm and no one else to do them so he got on and did the heavy work himself. Whilst he did have the dull ache or niggling back pain he nevertheless persevered and continued to work long hours both at work and on his farm. Furthermore the plaintiff was described as being of a lean build and not overweight and a fit and physically active person. He had a mortgage on the farm property and worried about his continued employment and paying the mortgage after the accident. That would indicate that he was
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motivated to work as hard as he did to ensure that the mortgage payments would be met. 63 All in all these factors must be balanced one against the other. In the end result I find that although he was at risk and susceptible to exacerbating or aggravating the low back injury he was the type of person who would nevertheless have boxed on and got on with the job both in the context of his employment and on the farm. That he was the sort of person likely to do that is evidenced by his continuing at work after the accident as long as he did despite the difficulties of his chronic neck pain and depression. He was a worker who got on with the job and adjusted his work practices to accommodate his low back condition and seemingly did not complain when he had more than the usual dull pain in the low back. In those circumstances I find that no greater discount is appropriate on account of the pre-existing low back condition than would normally be allowed for the vicissitudes of life.
Retained earning capacity 64 The defendant contends that the plaintiff has a retained earning capacity and supports that on the basis of Dr Fong's evidence that "theoretically, (the plaintiff) could receive retraining into a lighter sedentary field of employment, with possible options being as a TAFE lecturer, retail assistant/demonstrator in a hardware store and as an estimator". He was of opinion that there was "a reasonable prospect of achieving a return to work if (the plaintiff) was strongly motivated". To a lesser extent Dr Harper suggested that the plaintiff was capable of light sedentary work on a part-time basis but that view was qualified to the effect that such would be good for him in an occupational sense (being therapeutically good for him) but not in an economical sense. 65 Dr Fong saw the plaintiff on one occasion only and then only for about one hour. Drs Finch, Laney, Ng and Harper (the latter with the qualification mentioned above) were all of opinion that the plaintiff was not fit to return to his pre-accident employment and incapacitated for all forms of gainful employment. In particular Drs Harper and Ng joined issue with Dr Fong's assessment. More telling was the fact that in cross-examination Dr Fong conceded that if it was the opinion of Dr Ng that the plaintiff was not suitable for employment by reason of his depression and medication then he was accepting of that as indicating that the plaintiff was not fit for any form of employment. That was the opinion of Dr Ng which I accept. Accordingly, I reject Dr Fong's assessment that the plaintiff is capable of gainful employment.
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66 Furthermore Mr Fong's evaluation of the plaintiff as recorded in his report of 23 January 2003 (Exhibit 26) was that "… he is now no longer restricted by his pain levels". In evidence he qualified that by saying that the plaintiff was no longer "significantly" restricted. The fact is that the plaintiff is very much restricted in the ways which Dr Ng identified.
67 The plaintiff does have functional limitations in terms of his work capacity. He is unable to tolerate long driving for more than about 45 minutes. He is unable to perform any heavy lifting or bending or twisting. He would have problems with any work tasks requiring repetitive manual handling or repeated bending or twisting movements of his spine. Furthermore his medication for depression combined with the morphine to ease the chronic neck pain present difficulties so far as concentration and safety in any work environment, are concerned. 68 Undoubtedly, and each of the doctors accepted, finalisation of these proceedings will be beneficial for him and perhaps ease some anxiety that he bears. Even so, it will not lessen the impact of the physical injuries and sequelae of the accident. 69 The defendant also suggested that because employment opportunities may be limited for a person with the plaintiff's disabilities in an outer metropolitan area the plaintiff should consider moving nearer into the city where there may be a greater prospect of employment in the future. The plaintiff had lived in suburban Perth but chose to live at Toodyay. He did that even though it involved a long drive each morning and evening to and from work. He preferred to live in the country as did his wife and they had a life style which they both enjoyed. It was a life style which they had both looked forward to continuing after the plaintiff's retirement. Necessarily the defendant must take the plaintiff as he finds him. In my view it is not incumbent upon the plaintiff to mitigate his circumstances in the manner for which the defendant contends. 70 It is my finding that the plaintiff has no retained earning capacity in that he is wholly unfit for any form of gainful employment and therefore has no retained earning capacity. Again, no additional discount will be made on account of this issue over and above a discount which would reflect the normal vicissitudes of life.
Assessment of damages 71 Both the plaintiff and defendant's counsel tendered schedules of economic loss. Save for issues touching upon the assessment of future
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loss of earning capacity (where the plaintiff proposed a discount of 10 per cent for contingencies and the defendant proposed a 40 per cent discount) the schedule under the various heads were not far apart insofar as the other items were concerned. For the reasons outlined so far as the discount for contingencies is concerned I adopt the plaintiff's schedule of economic loss and in respect to certain items make additional observations where necessary.
Past loss of earning capacity 72 The plaintiff contends that prior to the accident he earned not less than 110 per cent of base annual gross income. Up until 1999 he had also received regular wage reviews with pay increases occurring on 1 June 1995, 3 January 1996, 1 July 1996, 18 April 1997 and 1 June 1999. The plaintiff's rate of income was generally reviewed each year. No further reviews occurred after 1 June 1999 for the reasons explained by Mr Hicks. I have considered the evidence of Veronica Marcello (Exhibit 17 tendered by consent) and the annexures to the plaintiff's economic loss schedule and am satisfied that the basis of the plaintiff's claim as presented is substantiated and justified. Thus, the claim for past loss of earnings is based on the plaintiff continuing to earn not less than 110 per cent of base income and factoring in a pay rise of $0.80 per hour as from 1 July 2002.
(i) 31 July 1997 – 30 June 1998 $41,600 base plus 10% = $45,760 pa 52 weeks at $630 net per week ($880 gross per week) $ 32,760.00 (ii) 1 July 1998 – 30 June 1999 $41,728 base plus 10% = $45,901 pa 52 weeks at $631 net per week ($883 gross per week) $ 32,812.00 (iii) 1 July 1999 – 30 June 2000 $43,264 base plus 10% = $47,590.40 pa 52 weeks at $649 net per week ($951 gross per week) $ 33,748.00
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(iv) 1 July 2000 – 30 June 2001 (Note income tax rates decrease with introduction of GST $43,264 base plus 10% = $47,590.40 gross pa 52 weeks at $696 net per week ($915 gross per week) $ 36,192.00 (v) 1 July 2001 – 30 June 2002 (Assume gross pay increase of $0.80 per hour) $44,928 base plus 10% = $49,420 gross pa 52 weeks at $719 net per week ($950 gross per week) $ 37,388.00 (vi) 1 July 2002 – 6 May 2003 (44 weeks) Based on $44,928 plus 10% = $49,420.80 gross pa x 44/52 = $41,817 gross over 44 weeks 44 weeks at $719 net per week ($950 gross per week) $ 31,636.00 $204,536.00 Less Actual Net Earnings: FYE 30 June 1998 $31,980.00 (52 weeks at $615 per week) FYE 30 June 1999 $32,500.00 (52 weeks at $625 per week) FYE 30 June 2000 $33,644.00 (52 weeks at $647 per week) FYE 30 June 2001 $29,328.00 $52 weeks at $564 per week) FYE 30 June 2002 $ 6,604.00 (52 weeks at $127 per week)
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FYE 30 June 2003 Nil ($134,056.00) Net loss$ 70,480.00
Interest on Past Loss of Earnings
5.67 years x 3% x $70,480 = $ 11,989.00
Past Loss of Superannuation Benefits
Based on claimed past loss of earnings (i) 31 July 1997 – 30 June 1998 $2,745.60 - $2,534.40 = $ 211.20 (ii) 1 July 1998 – 30 June 1999 $3,215.52 - $2,927.68 = $ 287.84 (iii) 1 July 1999 – 30 June 2000 $3,331.33 - $3,028.48 = $ 302.85 (iv) 1 July 2000 – 30 June 2001 $3,807.23 - $2,966.88 = $ 840.35 (v) 1 July 2001 – 30 June 2002 $3,953.60 - $543.83 = $3,409.77 (vi) 1 July 2002 – 6 May 2003 $3,762.71 – nil = $3,762.00 Sub Total: $8,814.01 Less 30% = $2,644.21 Total: $ 6,169.80
Interest on Past Loss of Superannuation
5.67 x 3% x $6,169.80 = $ 1,049.48
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Future Loss of Earning Capacity
(i) The plaintiff was born on 18 February and is now aged 54 years. (ii) The 6% discount multiplier for 11 years to age 65 is 423.8. (iii) The net weekly rate for the purposes of calculation of future economic loss is claimed to be $727.00 net per week based on plaintiff earning base salary of $50,000 gross per annum or $961.50 per week by 4 March 2003 as per evidence of Ken Hicks. (iv) $727 net per week x 423.8 (11 year multiplier) $308,102.60 Less discount of 10% for contingencies and retained earning capacity ( $30,810.26) Loss $277,292.34
Future Loss of Superannuation Benefits
9% x $961.50 gross per week x 423.8 x 70% $25,671.47 Less 10% for contingencies and retained earning capacity $2,567.15 $23,104.32
Special damages
(i) Additional medical expenses agreed $668.20 (ii) Outstanding accounts of Alan Lazarus $1,764.30 (iii) Past Travel Expenses as agreed $5,000.00 $7,432.50
Past Gratuitous Services
Julie Marchesi – 12 x 2 hours of driving at $15 per hour $360.00
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Mark Batten – 48 hours of painting at $15 per hour $720.00
Average of 4 hours per week general assistance over 224 week period between 31 July 1997 to 16 November 2001 at $15 per hour. $13,440.00 Arthur Elliott – Average of 6 hours general assistance per month or 1.38 hours per week over 224 week period between 31 July 1997 to 16 November 2001 at $15 per hour $4,652.30 Marjorie Batten – Took time off work when plaintiff suicidal. Drove plaintiff around. Fed cattle for 20 minutes each day between January to May (say 22 weeks). Say an average of 3 hours per week over 224 week period between 31 July 1997 to 16 November 2001 At $15 per hour $10,080.00 Loss $29,252.30
Interest on Past Gratuitous Services
5.67 years x 3% x $29,252.30 = $4,975.82
Future Expenses
(i) General Practitioner Reviews 6 GP reviews per annum at $51 per review $306 per annum of $5.88 per week $5.88 per week x 686.9 = $4,038.97
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(ii) Morphine Top Up Reviews with Dr Finch
7 sessions per year for 25 years at $374 per session, $2,618 per annum of $50.34 per week $50.34 per week x 686.9 = $34,582.00 (iii) Future Psychiatric Costs 12 sessions per year for 2 years at average of $143.50 per session = $1,722 per annum or $33.12 per week $33.12 per week x 98.5 $3,262.32 Then a further 3 sessions per year for a further 5 year period at average of $143.50 per session = $430.50 per annum or $8.28 per week $8.28 per week x (299.9 – 98.5) $1,667.59 Plus allowance for prospect of further psychiatric costs continuing until age 79 $2,000.00 $6,929.91 (iv) Future Psychologist Costs 6 sessions over 1 year at $156 per session = $936 per annum of $18 per week $18 per week x 50.7 $912.60
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Plus allowance for prospect of further psychological treatment until age 79 say $2,000.00 $2,912.60 (v) Future Morphine Tartrate Costs 7 top ups per year at $23.10 per top up = $161.70 per annum or $3.11 per week $3.11 x 686.9 $2,136.26 (vi) Future Effexor Costs 3 tablets per day or 1095 tablets per year = 13.03 packets per year 13.03 packets at $21.30 each = $277.54 per year or $5.34 per week $5.34 per week x 686.9 = $3,668.05 (vii) Future Naprosyn Costs 1 naprosyn suppository per day or 365 naprosyn suppositories per year = 9.125 packets per year 9.125 packets at $30.45 each = $277.85 per annum of $5.34 per week $5.34 per week x 686.9 $3,670.37 (viii) Future Surgery Costs Fee of Dr Finch $15,000.00
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Theatre Fees $ 1,293.00
Hospital Bed (2 days) $ 870.00 Anaesthetist $792.00 $17,955.00 The plaintiff had the initial installation in September 2001 and will require three further replacement procedures throughout the remainder of his life with projected costs as follows: September 2005 (5.5 years away) 0.726 x $17,955 $13,035.33 September 2015 (12.5 years away) 0.483 x $17,955 $8,672.26 September 2022 (19.5 years away) 0.321 x $17,955 $5,763.55 $27,471.14 Future Travel Expenses A return trip from plaintiff's home in Chittering to Perth is 120 km and slightly further to the rooms of Dr Finch in South Perth. Plaintiff will need to see Dr Finch not less than Seven occasions per year. In addition, must travel Regularly to purchase scripts and other doctors Attendances. Claimed at 1500 km per year. 1500 km per year at $0.30 per km $450 per year
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= $8.65 per week
$8.65 x 686.9 $5,944.30 Allowance for extra treatment with complications and infections $3,000.00 $8,994.30 Future Gratuitous Services Claimed at 2 hours per week at $15 per hour To age of 70 = $30 per week $30 per week x 543 $16,290.00 Total $110,643.60
General damage for loss of amenities 73 The plaintiff is entitled to general damages for the accident itself and for the consequent chronic pain and depression, hospitalisation, inconvenience and other matters generally referred to as the loss of amenities. 74 The award of damages for loss of enjoyment of life and amenities generally requires a consideration of s 3C of the Motor Vehicle (Third Party Insurance) Amendment Act 1994 ("the Act"). This section imposes limitations upon an award of damages for non-pecuniary loss and it applies to the present case. Section 3C(3) provides that the maximum amount of damages that may be awarded for non-pecuniary loss is, at the present time $240,000 and that that amount may be awarded "only in a most extreme" case. 75 In Wylde v 'Arriaza, unreported FCt SCt of WA; Library No 970359; 23 July 1997 the court adopted the same approach to the Act as the New South Wales Court of Appeal did to the Motor Accidents Act 1988 (NSW). In Southgate v Waterford (1990) 21 NSWLR 427 at 440 the Court said: "There are a number of ways by which trial Judges could approach the task of apportionment required by s 79(2) and s 79(3). It is inappropriate in this case for this court to mandate
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any particular way of arriving at the 'proportion' required by s 79(2). But clearly because the task in hand is that of awarding damages for 'non-economic loss' it is appropriate for the trial Judge to consider and make findings on those elements in the evidence which are relevant to such loss. This will require the Judge to consider and make findings on the evidence relevant to those heads of damage formally considered in the award of general damages. Then it is necessary for the Judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by s 79(3) be awarded. The use of the indefinite article 'a' has already been noted. Opinions of what constituted 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000; but in a ratio which the Judge fixes keeping in mind that the cap of a statutory maximum is retained for a 'most extreme case'." 76 The task is to find the right proportion between a most extreme case and the present. As to what might constitute a most extreme case see also Murray J in Hendrie v Rusli [2000] WASCA 249. 77 For the purpose of this assessment I repeat all of my findings in relation to the nature of the plaintiff's injuries, their diagnosis and prognosis. The accident, whilst it could not be described as severe, was undoubtedly a frightening experience. The consequence however has been life shattering for the plaintiff. He was a person with a high work ethic, an employee "of the old school" valuable, trustworthy, hardworking and described as a workaholic. He enjoyed his vocation and he enjoyed the work he was doing on the farm. He was fit and active and competent in all that he undertook and worked within his limitations. He shared with his wife the prospect that their life in retirement would be enjoyed on the farm. All that which might have been and his well-being and wellness has been taken from him. He has suffered a high degree of frustration in not being able to do that which he used to do. He has worried and been anxious over his future functionality which has led to a major depressive disorder. He has suffered chronic neck pain which has been eased to some extent by medication. His condition will necessitate ongoing attendances with medical practitioners, future operative treatment and regular refills of the morphine tank. Each of these events will continue to remind the plaintiff of the fact of the accident and of what might have been but for that event. He has descended to the depths of being suicidal. He has lost the farm and he has lost his way of life. Such damages as may be awarded will not make him the person that he was. Finalisation of these proceedings may provide some relief and enable him to plan his future life with some certainty and less worry but will not make him better. 78 I find that the plaintiff's initial injuries and symptoms, their progression and treatment, their current status and the effect that they have had and will have on the plaintiff's enjoyment of life puts the plaintiff's case at 50 per cent of the most extreme case. This percentage of (Page 32)
the maximum amount that may be awarded of $240,000 equates to $120,000. 79 Accordingly I award the plaintiff general damages in the sum of $120,000.
Summary 80 Accordingly, the plaintiff is entitled to the following award: Past loss of earning capacity $ 70,480.00
Interest on past loss of earnings $ 11,989.00
Past loss of superannuation benefits $ 6,169,80
Interest on past loss of superannuation $ 1,049.48
Future loss of earning capacity $277,292.34
Future loss of superannuation benefits $ 23,104.32
Past special damages $ 7,432.50
Past gratuitous services $ 29,252.30
Interest on past gratuitous services $ 4,975.82
Future expenses $110,643.60
General damages $120,000.00
Total $662,389.16
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