Dermody v Adam

[2000] QDC 355

DISTRICT COURT OF QUEENSLAND

CITATION:	Dermody v Adam & Anor [2000] QDC 355
PARTIES:	CRAIG LEE DERMODY BY HIS NEXT FRIEND GAIL DERMODY Plaintiff and WILLIAM CLIVE ADAM First Defendant and DIANNE IRENE COSGROVE Second Defendant and FAI GENERAL INSURANCE COMPANY LIMITED (ACN 000 327 855) Defendant by Election
FILE NO/S:	D86/99
DIVISION:	Civil Jurisdiction
PROCEEDING:
ORIGINATING	Maryborough
COURT:
DELIVERED ON:	13 December 2000
DELIVERED AT:
HEARING DATE:	3 November, 7 December 2000
JUDGE:	Judge Robin QC
ORDER:
CATCHWORDS:	Damages – personal injuries – plaintiff fails to establish headaches were as severe or frequent as claimed, or had their genesis in a motor vehicle accident for which the defendants admitted responsibility.
COUNSEL:	Mr C Newton for the plaintiff Mr J Rolls for the defendant
SOLICITORS:	Carter Capner for the plaintiff Clayton Utz for the defendant

1. The plaintiff will have his 18th birthday on 27 September 2001. He sues in respect

   of personal injuries suffered in a motor vehicle accident that occurred in Maryborough on 24 March 1990. He was a backseat passenger in one of the

   vehicles involved. By the time of trial, liability had been admitted by the defendant

   by election.

2. One has to wonder about the appropriateness of the proceedings remaining in

   Maryborough. It is expensive for the court to provide a judge and staff to come to

   Maryborough. It is expensive for the parties to litigate in Maryborough, the

   solicitors and counsel involved all being Brisbane based. The plaintiff and his

   mother (next friend) had to come to Maryborough at short notice from Coffs

   Harbour; they had to bring Dr Todman from Brisbane. Two general practitioner

   witnesses called by the defendant by election gave their evidence by telephone,

   from Coffs Harbour and Tamworth. The defendant’s neuro physician witness, Dr

   Bradfield, was unavailable (in any case he would not have been reached) on the

   first day, which was Friday, 3 November 2000. It suited the parties not to resume

   in Maryborough after the weekend, and the matter was adjourned for a second day

   of hearing to Brisbane, at a date late enough to permit disclosure and other relevant

   enquiries to take place in light of information emerging on the first day regarding

   hitherto undisclosed bouts of employment the plaintiff had had. I hasten to say I am

   being critical of the system, rather than of any particular person. It ought to have

   been discovered that a trial in Brisbane was more convenient and economical from

   every point of view; upon that being discovered, the matter ought to have been

   transferred to Brisbane.

3. On 7 December Dr Bradfield gave evidence in Brisbane in person, and counsel

   presented their submissions. Issues to do with the plaintiff’s employment were

   taken no further.

4. The action was not commenced until 12 July1999. The Statute of Limitations has

   not yet commenced to run against the plaintiff, given his age. The lapse of time

   from the accident, coupled with almost total lack of records or any kind of

   corroboration to support his evidence and his mother’s has compounded the

   difficulties the plaintiff faces in establishing the quantum of damages, which is the

   only issue for the court.

5. According to the plaint, particulars of the plaintiff’s injuries are:

“(a)	injury to the right forehead, with deep lacerations;
(b)	concussion;
(c)	facial scarring;
(d)	ongoing headaches;
(e)	neck pain.”

The hospital report, exhibit 1 is as follows:

“According to our medical record the abovementioned was brought to the Accident & Emergency Department of the Maryborough Hospital on 24/03/90, at about 1430 hours. He was a passenger (back seat) in a vehicle involved in an accident.

On admission he was conscious, alert, not shocked and he had an obvious head injury, but there was no history of loss of consciousness.

On examination he had a laceration over his forehead. Clinically he had no objective neurological signs. After assessment the wound was cleansed and sutured under local anaesthetic. X-ray of the skull showed no obvious fracture.”

This does suggest that “deep lacerations” may be something of an exaggeration. It

does not support the claim of concussion, nor does any other evidence in the case.

1. The plaintiff describes his scar as “H-shaped”. I would agree with Dr Walters’

description of:

“A rather inconspicuous scar in the centre of his forehead. There was an irregular area of faint scarring over an area of 2 centimetres x 1.5 centimetre.” (Dr Walters’ report of 21 September 1998, exhibit 13).

[7] Dr McDougall, plastic and reconstructive surgeon says:

“ ON EXAMINATION

There is irregular, pale, flat scarring involving the centre of his forehead. In particular there is a vertical scar one (1) centimetre in length with a further transverse scar also one (1) centimetre in length extending towards the left side from the initial scar which then extends vertically for a further one (1) centimetre towards the medial aspect of his left eyebrow.

OPINION:

Craig’s injury is consistent with the stated cause. The scarring is now fully mature and no further improvement will occur.

This irregular flat scarring presents as a very minor cosmetic defect only and I do not consider that he would benefit by any form of revisionary surgery.”

1. Doctor Walters, an orthopaedic surgeon, had examined the plaintiff on 17

   September 1998. He noted that:

   “His main problem related to headaches which his mother said had developed since the accident. The first of these occurred some two weeks after the injury, and they have persisted ever since.”

   The final paragraph of Dr Walters’ report was:

   “Craig sustained a minor head injury in the motor vehicle accident concerned, and a wound on the forehead required suturing. Residual problems relate to the occurrence of headaches of a specific pattern. Some features, including a reluctance to move the eyes; avoidance of sunlight; and nausea and vomiting, - are a little different from the usual, and at one stage a relationship to migraine has been raised. There is no history of migraine headaches in the family, and Mrs Dermody said Craig had no problems prior to the motor vehicle accident. The question arises as to whether the headaches do result from the minor head injury in question, or whether they could have been precipitated by this event. Migraine headaches are often a developmental or inherent condition. As an Orthopaedic Surgeon, this is beyond my sphere of expertise, and a further opinion regarding the headaches and any possible relationship to injury could be sought from a Neurologist. There was no evidence of any skeletal or spinal injury which would cause such symptoms.”

   In accordance with that advice, the plaintiff, again for medico legal purposes, was

   examined by Dr Todman on 19 February 1999. A report of that date concludes:

   “Conclusion

   Mr Dermody suffered from injuries in the motor vehicle accident which occurred on 24.03.1990. In this accident there was a frontal head injury with a scalp laceration which required sutures. There was no clear evidence of loss of consciousness.

   Following the accident he was taken by ambulance to the Maryborough Base Hospital. Subsequent to his assessment he began to experience headaches on a regular basis. There is a clear historical link between the accident and the development of headaches. Furthermore the headaches have been a regular recurring feature since that time. There was no history of headaches or migraine prior to the accident and there is no family history of migraine.

   The headaches have clinical features of migraine. This includes the throbbing sensation, nausea, vomiting and photophobia. Furthermore the history of provocation of headaches with physical exertion is consistent with a migraine process.

   In addition to the headaches Mr Dermody also experiences neck pain. The pain and stiffness is present on both sides of the cervical spine. It tends to parallel the degree of headaches. There may have been some element of neck strain in the accident although it is more likely that the muscle tension is a consequence of the headaches which are occurring regularly.

   It is well described in the medical literature that post-traumatic headaches may have migraine features. This is particularly so when there has been a scalp laceration occurring in the accident. The headaches therefore are a direct consequence of the accident of 24.03.1990.

   The headaches have occurred frequently and have a substantial effect on his day to day activities, recreation and school performance. They have occurred on a weekly basis and have caused him to lose a substantial amount of school with resulting effects on his school performance.

   For treatment I have recommended a course of migraine preventive therapy with Sandomigran tablets. He will take this in a dose of two tablets at night and he will attend his local general practitioner for follows-up with this.

   The headaches and neck pain have amounted to a substantial degree of pain and suffering following the accident. His current symptoms are stable and are likely to represent a permanent state of affairs. I would estimate a 20% permanent impairment of whole person related to post-traumatic headaches.”

2. The percentage disability was explained by the doctor as an estimate of the number

   of days (per week or other period) for which the plaintiff was unable to function

   because of headaches. He has accepted the history of the plaintiff as related by

   him, and for earlier years, at least, by his mother.

3. Doctor Bradfield saw the plaintiff and his mother on 14 February 2000. I found

   telling his oral evidence that the plaintiff presented as a well, bright boy, not as the

   depressed, sick-looking person he would expect to have seen on the basis of

   frequent debilitating headaches, as described. In writing he reported:

   “I could find no sign of any neurological pathology to indicate intercranial, spinal cord or peripheral nerve damage as a result of his accident on the 24 March 1990 .

   ...

   Descriptively, the headache he is describing is consistent with migraine but for migraine to occur at a frequency rate in a fellow of his age following a head injury as described above where he was not rendered unconscious and sustained a laceration to the frontal region of the scalp, is unusual. As he did not lose consciousness and did not appear concussed I consider the likelihood of his headaches being related to the motor vehicle accident as unlikely

   In a supplementary report of 28 September 2000 (exhibit 15) he concluded:

   “In conclusion, Mr Dermody sustained a minor closed head injury on 24 March 1990. If he did lose consciousness it may have been for a short period of time. I remain of the opinion that as a legacy of this accident he has sustained no intracranial, spinal cord, nerve root or peripheral nerve damage.

   The headache he describes is consistent with migraine type headache but what concerns me is the frequency of his headache and the discrepancy in his history and the fact that he has not mentioned these headaches to his local medical officer.

   He informed me he only had been experiencing neck pain for several years and as neck pain did not occur for many years after his motor vehicle accident I would be of the opinion his neck pain is not directly related to the motor vehicle accident.

   It is possible that as a sequel of his head injury that he has developed migraine type headache and this could be the cause of his neck pain. I note this is the comment in the conclusion of Dr Todman on page 4 of his report dated 19 February 1999.

   How frequently his headaches are occurring and how much his headaches and neck pain are interfering with his daily quality of life in my opinion is open to question as I am concerned, as I mentioned in my original report, there is a discrepancy between the history obtained from Mr Dermody and his mother and the actual frequency of his headache.”

   The discrepancies as between the plaintiff and his mother cannot be ignored. They

   are greatest in relation to neck pain, which the plaintiff limits to his left side, which

   she says were bilateral, to adopt Dr Todman’s description; she says neck pain has

   been associated with the headaches all along, he says it began only when he started

   his part time work (one day each weekend) at age 14 at the resort where his mother

   also worked. The plaintiff estimates the frequency of vomiting associated with his

   headaches as greater than his mother’s estimate. As to the frequency of headaches

   themselves, as I understood her evidence, it had continued unabated. This is at

   variance with the plaintiff’s reports, in particular to Philip Bingham, an osteopath

   practising in Coffs Harbour who has treated the plaintiff on some 22 or 23

   occasions since 30 March 1999. He gave his evidence by telephone.

4. In the plaintiff’s case, reliance appeared to be placed on a troubling level of

   absences from school. In 1990, immediately after the accident, he missed two

   weeks’ school, but this was put down to the inability of his mother, who had been

   hurt in the accident herself, to get him to school. The court heard of four days

   school missed in 1992, 27 days in 1993, 33 days in 1994, 25 days in 1995, likewise in 1997 (no figure was given for 1996), 68 days in 1998 and 43 days in first

   semester 1999. The absences do not reach a concerning level until three years after

   the accident. While both he and his mother seemed content to allow medical people

   and the court to attribute them directly to headaches, and indirectly to the accident,

   the evidence is clear (and the plaintiff concedes it) that in later years, part of the

   explanation was simple truancy attributed to his dislike of school. On many

   occasions, it seems, the plaintiff’s school(s) followed up unexplained absences,

   furnishing forms to his mother for completion, and in no case (it seems) was the

   headache explanation advanced.

5. Exhibit 18 is a New South Wales Department of School Education Enrolment Form

   completed by the plaintiff’s mother which left blank three lines allocated to the

   inquiry:

   “Medical problems: Please specify any medical problems the school should be aware of including any daily medication to be taken by the student.”

   The form was completed to record immunizations the plaintiff had had. A

   corresponding form dated 18 April 1995 (exhibit 19) responds “No” to the “medical

   problems” question and a later one (12 May 1997 – exhibit 20) responds “Nil”.

   There is not the slightest indication that school authorities were ever advised of the

   plaintiff’s supposedly debilitating frequent headaches. This must cast some doubt

   on the case presented regarding their seriousness and frequency.

6. There is little more so far as medical records to do with the plaintiff are concerned.

   A chronology tendered in the plaintiff’s case contains the following item:

   “2.11.84 Maryborough Hospital admits plaintiff via casualty – fell down stairs – vomited 3 times since – settled overnight and discharged 3.11.84”

-	an event one would not expect the plaintiff to recall; his mother said she did
not recall it either, something of a curiosity in respect of hospitilization
overnight of a 13 month old child.

1. After the accident, the plaintiff was taken to a Toowoomba GP a couple of times; he

   removed the stitches. It does not appear that any report of headache was made. In

   November 1990, nearly 8 months post-accident the plaintiff was taken to Mr Hill,

   an optometrist.

2. Mr Newton, counsel for the plaintiff, tendered in his opening at page 6:

   “MR NEWTON: … A letter from Adrian Hill, optometrist, to the plaintiff’s solicitors, with a one-page file attached. The letter is dated 27 June 2000.

 HIS HONOUR:  Now, what’s the position about him,? Are

you saying he might be called?

MR NEWTON: Because I wouldn’t have thought my learned friend would particularly want to cross-examine him, but my learned friend’s telling me he hasn’t even seen it, so that’s a bit of a drawback. In any event, he is available by 2.30 by telephone if need be. As I say, the extent of the relevance of it is that the plaintiff, while consulting an optometrist, did refer to his headache problem dating back to the accident.

HIS HONOUR:That’s exhibit 10 on the condition that you produce him at 2.30 or some other time, if Mr Rolls wants it.”

When the Court resumed after lunch in Maryborough the following occurred (page

67):

“MR NEWTON:  I call Gail Robinson. I might just indicate

we may interpose at 2.30 the optometrist Adrian Hill.

GAIL MAREE ROBINSON, SWORN AND EXAMINED:

MR NEWTON:  My learned friend has just indicated he

doesn’t require Mr Hill called, so exhibit 10 will now go in.”

One must wonder whether the defence appreciated the possible significance of

Exhibit 10, the potential import of which had been accurately enough indicated by

Mr Newton. The “file”, a copy of which was presented to the plaintiff’s solicitors

under cover of a letter indicating spectacles were prescribed appears to contain the

following:

“SYMP
FRONTAL H-A – POSS’Y FROM CAR

ACCIDENT. OCCUR ANY TIME – CAN BE SEVERE.”

Although Mr Newton had somewhat downplayed the importance of the file in his

opening, he set great store by it in his closing address, to the point of submitting

that the striking thing about the plaintiff’s visit to Mr Hill was a complaint of severe

headaches ever since the accident. The court simply does not know whether this so,

or whether it was simply a case of noting the experiencing of headaches in a patient

whose vision required correction in any event. It is regrettable that fuller evidence

was not taken from Mr Hill and that the opportunity to cross-examine him was not

availed of. In the circumstances, the file must be taken at face value. It remains

uncertain whether the idea of some link to the car accident was Mr Hill’s or

someone else.

1. By 1992, the family had moved to Tamworth. Grant Harvey, optometrist,

   conducted a “paediatric vision examination and visual efficiency” consultation on

   19 May 1992, this being “a routine evaluation after losing his glasses.” Continued

   use of glasses was recommended. “No reference to Craig suffering from migraine

   headaches was noted on this consultation” (exhibit 24). On 24 August 1992, the plaintiff and his mother saw Dr Kwa in Tamworth who recorded a complaint of

   recurring left sided headaches and nausea occurring once weekly – “mother used to

   have migraines.” Ms Robinson said she would describe any severe headache in

   that way and that she had suffered in that way only since the 1990 road accident.

   Doctor Kwa prescribed paracetamol. He explained in his evidence that, had he

   been told the frequency of headaches was significantly greater, he would have

   prescribed a preventative, to be taken daily, rather than paracetamol to be taken on

   the onset of headaches. There was no reference to headaches in earlier

   consultations in 1992 or subsequent consultations in 1993.

2. Although the plaintiff’s case would have it that the headaches (occurrence of which

   in November 1990 and in mid 1992 may be taken as established) got progressively

   worse, no medical treatment or advice was sought. The plaintiff saw Dr Cross in

   Coffs Harbour several times from 15 July 1997 to 14 September 1999. The only

   occasion on which headaches were mentioned was 6 April 1999, when the plaintiff

   presented complaining of an abcess which was treated. His mother mentioned

   headaches etcetera, said to be the result of a motor vehicle accident. Doctor Cross

   made a note for himself that he thought a story was being generated for the court.

   Doctor Cross did not disguise his suspicions, which owed much to his never having

   treated the plaintiff for headaches, or heard of his having headaches. After Mr

   Hill’s and Dr Kwa’s notes, there seems not to be another line in writing until 14

   January 1998, in a solicitor’s personal injuries damages questionnaire Ms Robinson

   completed (exhibit 21) where she makes the case under “Previous Medical

   History”:

   “Migraines - from the onset of the accident and a couple of weeks
   after the accident after the stitches were removed.”

   Ms Robinson told Dr Cross the effect of Dr Todman’s opinion, which had been

   obtained in the interim. With the hospital report set out above and the Health

   Insurance Commission printout (exhibit 25) the plaintiff’s medical history is fairly

   completely documented. Ms Robinson has taken on herself the responsibility of

   changing or supplementing the plaintiff’s medication, adding Nurofen, on the

   advice of a pharmacist, and, afterwards, Panamax, which, recently, has been

   prescribed for her by Dr Cross (by way of a practice which he said did not

   surprise him) and used for the family generally. Doctor Todman’s initial report

   indicates the headaches would have been of a concerning nature:

   “For the first one to two years after the accident Craig was of a nervous disposition. He would often become quite anxious and hold onto his mother especially when going out on car trips.

   Present Symptoms and Treatment

   Mr Dermody has continued to suffer from symptoms following the accident. Headaches have been a frequent feature. The headaches are mainly behind the eyes and in the frontal and temporal regions. At times they extend to the whole head and occipital region. They tend to have a pulsating or throbbing character. They are usually associated with nausea and vomiting. Frequently he has photophobia with them but there is no visual aura.

   Headaches occur at least on a weekly basis. They last from several hours up to two days. They are often triggered by physical exertion and sport. Occasionally headaches occur unprovoked. No headaches of this type were reported prior to age six and prior to the accident which occurred in 1990.

   For treatment he usually takes either Panamax or Nurofen. He said that these usually take the edge off the headache but no sustained benefit occurs with them.

   There is no family history of headaches or migraine.

   Neck pain occurs frequently as well. The neck pain tends to parallel the headaches. It is mainly experienced in the high cervical region bilaterally. There is some tightness and stiffness in the cervical spine with this.

   Activities of Daily Living

   Mr Dermody reports that physical activity or lifting in the home also aggravates pain. He often has headaches when doing the mowing at home.

   Sporting and Recreational Activities

   Mr Dermody has had to substantially reduce his physical activity because of the headaches. He has stopped playing soccer and football as these would regularly precipitate headaches. He also regularly experiences headaches after skate board riding. Sport at school has often triggered headaches.

   Educational History

   Mr Dermody is currently in Year 10 at school. He has missed numerous days of schooling because of these recurring headaches. He missed eight weeks of schooling in the last term of 1998. As a result of this his school performance has suffered. His teachers report that his grades have slipped. His mother has had to engage a special tutor to help him in areas in which he has fallen behind.”

   It is rather difficult to understand why no further medical advice was sought. Ms

   Robinson attributes this to the confidence she had in Dr Kwa, who had been

   recommended to her as a good general practitioner, and her understanding that his

   advice, on the single initial consultation, was that nothing was available other than

   paracetamol. It defies belief that, if this were not working, there would have been

   no follow up with him, on the plaintiff’s subsequent visits to him.

1. It seems that the plaintiff may have suffered “frontal” headaches in late 1990.

   Maybe Mr Hill sowed the idea that they were linked with the car accident. It

   should be accepted that the plaintiff suffered left-sided headaches as described to Dr

   Kwa in August 1992, more than two years after the accident, and that these have

   persisted over the years, more recently accompanied by neck pain (on the left hand

   side) which Doctors Todman and Bradfield are not surprised at. It is not possible to

   link the neck pain with the accident in 1990. Nor is it possible to accept the evidence of the plaintiff and his mother at its highest as to the frequency of

   headaches, or the necessary impact of them on his activities. Activities in

   employment, which the plaintiff has been keen to pursue, have not been precluded

   or productive of problems the plaintiff cannot put up with to any great extent. Since

   leaving school at the end of last year, the plaintiff has been working full time as a

   trainee cabinetmaker. He plans to proceed to an apprenticeship with his employer

   next year. (He says heavy work leads to headaches, requiring consulting Mr

   Bingham. He has missed only a couple of days work on account of headaches but a

   couple of weeks work on account of a fishing accident.)

2. It is not possible for the court to reach a state of actual persuasion that headaches of

   which nothing was recorded, and about which nothing was done, apparently, until

   November 1990, and on the medical front, until August 1992 are a consequence of

   the accident in March 1990. I say this without doubting the genuineness of the

   beliefs of the plaintiff and his mother (whom I regard as the source of them) that the

   headaches started within weeks of the accident. I am not persuaded of the

   reliability of their recollections to such effect. After August 1992, six years elapse

   before the plaintiff’s headaches are mentioned to another health professional, and

   that occurs in a medico-legal context.

3. Mr Newton accepted that the plaintiff’s case stood to be embarrassed by the

   suprising lack of concern leading to consultation of medical people exhibited by his

   mother (next friend in the litigation) in the light of cross-examination such as that at

   page 82:

   “You’re joking? – No.
   A child is debilitated in bed, sometimes vomiting, paracetamol has
   no effect, he continues to have those symptoms and you do nothing?
   – Mmm.

   You don’t know whether he’s got meningitis, you don’t know whether he’s got a tumour. You do nothing ----?— Well, he checked him over and he said that he’s suffering from migraine headaches, and, “This is what you do for him.”

   You give him paracetamol?— Mmm.

   Who told him to take Nurofen? – I did, because I went to the chemist and asked him what would be stronger.

   So you were concerned enough to go to a chemist but not concerned enough to go to a doctor? – Well, I took Dr Kwa at his word and I just thought as time went on that they would decrease. I thought they would decrease.

   You didn’t take him at his word at all, you gave him Nurofen. Why did you give him ----?— Because the Panadol wasn’t working.

   Well, if that didn’t work, surely that caused you to question Dr
   Kwa’s diagnosis? Why didn’t you go and see someone about it?—

   Well, I probably should have, and I do believe now I should have.

   Because the next doctor you see about these complaints is Dr
   Todman for the purposes of a medico-legal report?— Mmm.

   In the period between the date of the accident and the present time, leaving aside the erstwhile Dr Todman, you’ve taken Craig to one medical appointment for his headaches?— Yes.

   One?— Yep.

   You’ve never had him investigated by a neurologist, apart from Dr Todman, have you?-- No. Well, not until it was suggested to take him there.

   By your solicitors – or by the solicitors for the plaintiff to take him there to get him examined by Dr Todman?-- Yes.

   You’d never taken him for treatment – you’ve never felt concerned enough to take him for treatment t a neurologist?- Well, when this doctor said that he is suffering from migraines, that he may grow out of time I just thought over time he would.

   You’ve never had him investigated in any way, shape or form to ascertain what the cause of the headaches might be?— No, only by Dr Kwa and Dr Todman.”

4. Mr Newton suggested Ms Robinson’s performance may have left much to be

   desired, and submitted that the plaintiff’s case ought not to suffer on that account. I

   am not at all satisfied that Ms Robinson ought to be criticised in that way. Over the

   years she has got the plaintiff to doctors on many occasions for treatment of all

   kinds of complaints, which it is not necessary to catalogue here. Suffice to say that,

   in my opinion, when there was a serious concern regarding the plaintiff’s health,

   headaches included, professional assistance was sought. There is a clear contrast

   with the medical history of Ms Robinson herself. She says she was suffering from

   severe headaches immediately after the accident, for which she sought treatment

   which she had “for a long period of time” (page 75) such as physiotherapy and

   acupuncture (page 79).

5. It is not possible for me to accept with any confidence the proposition that the

   plaintiff had never had a headache before the accident. Considering all of the

   evidence, and accepting that at times he has suffered in that way, I am unable to feel

   satisfied on the balance of probabilities that his headaches have their genesis in the

   accident.

6. So far as quantum of the plaintiff’s damages is concerned, the court accepts

   evidence that it took him some time to get over the accident, which would have

   been a bad experience for a child of his age. He underwent the treatment that has

   been mentioned and he suffered a permanent cosmetic consequence, albeit a slight

   one. I would assess his general damages inclusive of interest in the sum of $5,000.

   There is no past economic loss established or impairment of earning capacity

   attributable to the accident. I allow $250 inclusive of interest for Griffiths v.

   Kerkemeyer damages and for other special damages $17.85 (in respect of two consultations with the Maryborough GP) and interest of $8.95. The defendant

   concedes these two amounts and likewise a 3.85% commission payable to the

   Public Trustee. The parties agreed there was no avoiding placing the plaintiff’s

   damages with the Public Trustee, whose fee on the $5,276.80 in respect of the

   above sums I calculate as $203.20.

7. The plaintiff, it seems, should have judgment against the defendant by election for

   $5,480 with costs of the action to be assessed, the usual orders being made for

   payment to the Public Trustee. The parties will have the opportunity to submit for

   other or more detailed orders in light of these reasons.