Duggan v Evci & Watts No. DCCIV-98-1379

DUGGAN v EVCI & WATTS
[2000] SADC 94

Judge Robertson
Civil

The Plaintiff was injured in a road accident on 6 October 1995. She was the driver of a motor vehicle which came into collision with a motor vehicle being towed by the Second Defendant. The vehicle being towed was being driven by the First Defendant. The collision occurred at the junction of Lonsdale Road and Cove Road, Hallett Cove. The Plaintiff was injured in the accident. The Defendants have admitted liability. The purpose of the hearing was to have the Plaintiff’s damages assessed.
Following the accident, the Plaintiff was admitted to the Flinders Medical Centre. She was suffering from severe pain in the sternum. She had difficulty in breathing and when she did breathe this increased the pain. Swallowing also caused her pain. She found it difficult to hold her head up. Furthermore, the Plaintiff could not stand because of a problem with her right ankle. The Plaintiff remained in the Flinders Medical Centre for about six hours. X-rays revealed that she had a fracture of the mid sternum. She could not move her neck off the bed without it causing pain. She suffered a ligamentous injury to her neck. An x-ray of her right ankle showed a bone fracture. The ankle was placed in a fibre glass plaster. She was also suffering from bruising to her stomach area.
On her release from the Flinders Medical Centre she returned home. The pain from her fractured sternum was very severe. She was required to remain in bed for sometime. After about four weeks the pain in the sternum had diminished. At the end of six weeks the sternum fracture had healed. The Plaintiff’s right ankle was also very painful. A week after the accident the fibre glass plaster was replaced. The plaster was finally removed some five weeks later.
Following removal of the plaster the Plaintiff underwent physiotherapy treatment to her right ankle, three times a week, for about three months. There was no discernible improvement in the ankle. She was still suffering pain, discomfort and restrictive mobility. She also consulted a podiatrist, who designed an orthotic device to insert in her shoe. She used it for a short time but found that it did not provide any assistance. Following the physiotherapy she undertook hydrotherapy. The ankle continued to cause the Plaintiff significant difficulties. I will describe those difficulties shortly. As will be seen later, the injury to the ankle and her foot were far more serious than it was first thought. She also suffered pain in her back between her shoulder blades. She received treatment for this during her hydrotherapy.
The Plaintiff was born on 15 December 1959. At the time of the accident she was approaching her thirty-fifth birthday. She was at that time and still is a Junior Primary School Teacher. She completed her Diploma of Teaching (Junior Primary) in December 1987. Junior Primary takes students from Reception to Grade Two. The Plaintiff commenced teaching in 1988. Since then she has been employed as either a Relief Teacher or a Contract Teacher. Relief Teaching required the Plaintiff to fill in for a teacher at a school, at short notice. Her appointment as a Relief Teacher would be for as little as a day or for a longer period. Employment as a Relief Teacher took her to many and various Primary Schools. By contrast, a Contract Teacher, as the name suggests, is employed for a specific contract period at one school. The contract could be for a Term, less than a Term or more than a Term. Whilst the Plaintiff graduated as a Junior Primary School Teacher, her teaching duties either as a Relief Teacher or a Contract Teacher also involved her in teaching at Middle Primary level.
At the time of the accident the Plaintiff was on holidays between Terms Three and Four. She was teaching at Noarlunga Downs Primary School and was employed five days a week; some of her days being as a Relief Teacher and the remainder under a contract as a Contract Teacher. As a result of the accident she was unable to return to teaching for the Fourth Term. In fact, because of her injuries, she was unable to return to teaching until about June 1996. At that time she did the odd half day teaching. However, from the beginning of the Third Term of 1996, in July, she commenced teaching at Myponga Primary School on a contract, for four days a week. The Plaintiff’s ankle was still causing her significant pain and discomfort on a daily basis. As long as she did not stand or walk for long periods, the Plaintiff coped with the pain and discomfort. She was also taking analgesics to help her deal with the pain. At that time, the Plaintiff said that she was sitting out the front of the class more than she preferred but that was necessary because of the pain and discomfort she was experiencing. The Plaintiff said that at this point she was also suffering from backaches. She did not cope well teaching at Myponga four days a week. The right ankle continued to swell and cause her pain.
In the Fourth Term of 1996 she obtained a contract for three days a week at Old Noarlunga Primary School. Whilst she was at Myponga Primary School her ankle had given way and she had nearly fallen over on a couple of occasions. This problem of the ankle giving way increased during the Fourth Term at Old Noarlunga. The Plaintiff had difficulty climbing the stairs at the School. On the occasions that the ankle gave way she felt a pinching or grabbing sensation in her ankle. She also had the sensation that her knee would also give way. The giving way caused her almost to fall over. On 23 December 1996, as a result of the problem with her ankle and knee giving way, she fell on the driveway of her home and cut her chin.
On 12 November 1996, due to the difficulties she was experiencing, the Plaintiff consulted with Dr Jan Tomlinson, an orthopaedic surgeon. Dr Tomlinson gave evidence. She said that the Plaintiff presented with a complex injury to her ankle which included a fracture through the mid-tarsal joint and avulsion of one and possibly two of the bands of the lateral ligament. Dr Tomlinson injected the lateral ligament of the right ankle with local anaesthetic and cortisone. The cortisone was designed to reduce the inflammation at the site of her injury. This was the only occasion the Plaintiff consulted Dr Tomlinson.
The pain and discomfort continued. The Plaintiff consulted Dr George Dracopoulos, an orthopaedic surgeon, in January 1997. Dr Dracopoulos’ speciality was at that time and continues to be, disorders of the foot and ankle. Dr Dracopoulos gave evidence. He said that following investigation, he concluded that the Plaintiff was suffering from damage to the calcaneo-cuboid joint of the right ankle, an injury to the lateral ligaments of that ankle and scar tissue caused by going over on that ankle. As a result of Dr Dracopoulos’ advice, the Plaintiff underwent surgery on 12 February 1997. The surgery involved ligamentous stabilisation of the right ankle, general debridement of the ankle joint together with a debridement of the right calcaneo-cuboid joint. Dr Dracopoulos explained that the calcaneo-cuboid joint was beneath the ankle joint. He explained that the joint in combination with other joints allows side movement of the foot. He described the Plaintiff’s injury to the calcaneo-cuboid joint as both significant and uncommon. Dr Dracopoulos said that he found damage to the cartilage, and this necessitated removal of the damaged cartilage. He said that the removal of the cartilage accounted for something like thirty to forty percent of the total surface of the joint. Dr Dracopoulos said that the Plaintiff’s complaint of pain in the right knee is consistent with her having a stiffened hind foot.
Following the surgery the Plaintiff’s ankle was placed in a cast for about six weeks. She undertook physiotherapy treatment. The Plaintiff resumed teaching in August 1997. She obtained a contract at the Christies Beach Primary School working Mondays, Wednesdays and Fridays. The Plaintiff said the days in between allowed her to recover. At that time, the pain at the cuboid joint had resolved. However, her ankle was still sore and tender. Furthermore, following the surgery, she did not suffer any further episodes of the ankle or knee giving way. Whilst the Plaintiff was still experiencing problems with the ankle, she accepted a contract for a fourth day, being a Thursday, at Myponga Primary School during the Fourth Term, to see if she could cope with a four day week. She found difficulty in coping with the extra day. Working on Thursday removed the rest day that she had previously enjoyed between working on Wednesday and Friday. After about two to three weeks she needed to take two weeks leave as she could not cope with either job. After her return the Plaintiff no longer worked at Myponga Primary School on Thursdays.
At the beginning of 1998 the Plaintiff obtained two and a half days a week at the Christies Beach Primary School. She also obtained an extra half day, as a result of some federal funding, to take her contract with the Christies Beach Primary School to three days a week. This contract was for Wednesdays, Thursdays and Fridays. The Plaintiff found that working on three successive days increased her discomfort. She found that she needed to rest her right leg on Saturdays and Sundays. Yard duty, which required the Plaintiff to be on her feet during recess, caused her difficulties. This led to another teacher substituting for her for part of the time. The Plaintiff said that she could not have coped with more than three days a week because of the pain and discomfort in her right ankle. Apart from minor exceptions, the Plaintiff continued to work three days a week at the Christies Beach Primary School for the remainder of 1998.
In 1999 the Plaintiff continued to work as a school teacher. The evidence does not disclose whether the nature of the work was a Contract or Relief Teacher. However, she worked a three day week for most of the year. In the early months, the Plaintiff worked some isolated full days and isolated half days. There were a few days where she was employed as an hourly paid instructor. The Plaintiff continued to have problems with her ankle during this year.
In the year 2000, the Plaintiff has worked two days a week in February, March and April. She said that she has been offered a third day for Term Three. The Plaintiff said that she is suffering less doing two days a week and finds it more difficult to do three days a week. However, she has accepted the contract for the extra day in Term Three. She said that whilst she finds it more difficult to work three days a week she wants to work as much as she is able.
Currently, the Plaintiff is still experiencing difficulties with her ankle. She said that the ankle is a little stiff each morning when she arises. After she becomes more mobile, the ankle loosens up. Some activities causes the ankle to swell and she suffers pain and discomfort. The ankle swells more in the summer. When this occurs, she elevates her leg and places an ice pack on it. In the winter, the Plaintiff heats up a wheat bag and places it on her ankle for pain relief. The amount of swelling and pain that she continues to suffer depends upon the time she spends on her feet. She said that if she spent a good portion of her days sitting then she does not suffer the same discomfort as she does if more of her day is spent on her feet. The Plaintiff also continues to suffer, on occasions, pain in her back. Furthermore, she finds that the more she is on her feet the more she is likely to suffer aching to her knee.
At this point it is appropriate that I say something about the Plaintiff as a witness. I found her to be an impressive and convincing witness. She was frank and forthright in giving her evidence. I did not form the impression that she exaggerated her position in any way. In my opinion, she was a truthful witness on whose evidence I could rely.
I earlier referred to the evidence of Dr Dracopoulos who performed surgery on the Plaintiff in February 1997. During his evidence Dr Dracopoulos also gave his opinion regarding the present state of the Plaintiff’s injuries and also what is likely to arise in the future. He said that the difficulties that she was still experiencing with her ankle were permanent. Dr Dracopoulos said that the Plaintiff was likely to suffer degenerative osteoarthritis later on. This would cause the Plaintiff increased pain of the outer aspect of the foot. He said that osteoarthritis could possibly emerge in the next five to ten years.
Dr John Sweeney, an orthopaedic surgeon, was also called by the Plaintiff. The Plaintiff first consulted Dr Sweeney on 28 November 1995 for medico-legal purposes. His opinion was generally similar to Dr Dracopoulos. He said that the Plaintiff had quite severe damage to some of the joints in her foot and she was likely to suffer stiffness and pain in the future due to the onset of arthritis. I should also mention that it was Dr Tomlinson’s opinion that the Plaintiff was likely to suffer from arthritis in the future.
The Defendant did not call medical evidence. However reports of Dr Peter Stevenson, a consultant physician, and Associate Professor Robert Bauze, an orthopaedic surgeon, were admitted into evidence. Generally these reports do not indicate any major differences to the opinions expressed by Dr Dracopoulos, regarding the Plaintiff’s injuries, except for one expressed by Professor Bauze. He described the injuries to the right ankle as “... minor fractures in the right ankle and hind foot ...” I reject this opinion. I accept the opinion of the Plaintiff’s surgeon, Dr Dracopoulos that the injuries to the right ankle were significant. There are some minor differences of opinion regarding the time of the onset of arthritis. Again I prefer the evidence of Dr Dracopoulos where it differs from the opinions of other medical practitioners relating to this topic. In fact where the opinion of Dr Dracopoulos differs from any other opinion provided by a medical practitioner, I prefer the opinion of Dr Dracopoulos. I found him to be an impressive witness. His specialty is that of disorders of the foot and ankle. He is also the Plaintiff’s treating surgeon and is far better placed to assess the extent of the Plaintiff’s injuries and their sequelae than others. It is for all those reasons that I prefer his opinions where they conflict with others.
The heads of damage claimed by the Plaintiff are:-
·.. Pain and suffering and loss of amenities
·Loss of earning capacity to the date of Trial (Past Loss) and thereafter (Future Loss)
·.. Gratuitous services provided by the Plaintiff’s mother
·Future medical expenses.
·.. Medical and other expenses to the date of Trial (Special Damages)
With regard to damages for pain and suffering and loss of amenities I have earlier described the Plaintiff’s pain, discomfort and the physical restrictions she has experienced and continues to experience. Most of her current problems arise from her injured right ankle although she also suffers some problems with her knee and back from time to time. These problems are associated with the difficulty she has with her ankle. The Plaintiff is currently restricted in the activities that she can undertake. Walking any distance causes her pain and discomfort. Prior to the accident she and her partner would enjoy a Friday night outing which included dancing. If she attempts to dance now, the ankle becomes painful and swollen. The Plaintiff has a young son. If she engages in activities with him, she again suffers from problems with her ankle. She still has problems walking around supermarkets. Prior to the accident the Plaintiff went fishing in a boat with her partner Michael Bouma. She can no longer undertake this activity due to the problems with her ankle and foot.
As far as the future is concerned, I have already mentioned that Dr Dracopoulos is of the opinion that her current problems with her right ankle will continue. It was also his opinion that the level of pain and discomfort will increase in the future due to arthritis. Furthermore, it is likely that she will continue to suffer some problems with her right knee from time to time. I accept the evidence of Dr Dracopoulos regarding the future.
For the Plaintiff’s claim for pain and suffering and loss of amenities and enjoyment of life there must be ascribed a numerical value pursuant to Section 35A of the Wrongs Act 1936. The number I ascribe is 18. For the purpose of assessing damages under this head the prescribed sum is $1,450. I therefore assess damages under this head at $26,100.
I now turn to the Plaintiff’s claim for loss of earning capacity both past and future. To establish her entitlement to damages for loss of earning capacity the Plaintiff must first establish that her earning capacity has in fact been diminished by reason of an injury caused by the negligence of the Defendants. Secondly, the Plaintiff must establish that the loss or diminution of earning capacity is or may be productive of financial loss (Medlin v State Government Insurance Commission (1994-1995) 182 CLR 1 at 3).
I have earlier mentioned that the Plaintiff is a qualified Junior Primary School Teacher. At the time of the accident she was employed as a Contract Teacher. She has been employed as either a Relief Teacher or a Contract Teacher since 1988. At the date of Trial she was forty years of age.
Before taking up teaching the Plaintiff had a number of occupations. She left high school half way through Year 11 in 1976. Initially she worked as a seamstress. This continued for about four to five years. Thereafter the Plaintiff took up employment as a waitress. She held part time waitress employment from time to time. She continued with such employment whilst she was studying for her teaching diploma. During these early years she held other jobs including a cleaning job at the Food Court of the Elizabeth Shopping Centre and working on the production line with Rowntree-Hoadley.
It is the Plaintiff’s case that since the accident she has fully exercised her diminished earning capacity. I have referred previously to the Plaintiff’s evidence regarding the amount of teaching she completed in each year since the accident and the problems she suffered with her ankle during her teaching.
To deal with the issue of past lost of earning capacity it is necessary to consider the Plaintiff’s job specification as a teacher, details about which the Plaintiff gave evidence. Currently the Plaintiff said that the size of the classes that she teaches is between twenty five to twenty nine pupils. At her current school the period of each lesson was approximately fifty minutes. In the morning there are two fifty minute lessons followed by a break and then a further two fifty minute lessons up to lunch time. After lunch there are two further fifty minute lessons. The Plaintiff said that each school has there own process regarding the division of lessons. In the classroom the pupils sit in five to six groups of tables. The teacher, depending on the lesson, moves around the room checking the children’s work and if they need help. The tables and chairs are quite low so there can be an amount of bending over the pupil, again depending on what they are doing. The teacher’s desk is usually situated in a corner of the classroom. There is a blackboard and sometimes also a whiteboard, depending upon the school. The Plaintiff uses both of those pieces of equipment for the purpose of instructing the pupils. Whilst the Plaintiff was referring to current requirements of teaching the inference can be made that her job specifications for the years 1996 to 1999 were similar.
The Plaintiff said that prior to the accident she would only sit at her desk at the beginning of the day and at the end of the day. The rest of the time was spent moving around the class attending to the students’ needs. The only exception to that would be where she was at the front of the class giving instructions or reading from a book. When reading from a book she would sit. The Plaintiff said that since the accident she has altered her method of teaching because of the problems she experiences with her ankle. She said that now she tends to sit out the front of the class more. The Plaintiff said that some lessons require her to move around more than others so she tends to try and save her ankle for those lessons which require her to move around the class. She said that when she sits at the front of the class she directs the students from there and requests them to attend on her. If the Plaintiff does not balance her day between standing and sitting, to give her relief, then at the end of the day her mobility would be significantly reduced. The Plaintiff said that there is always the necessity, in some lessons, to move about the class. She said that she felt that the time she is now spending sitting is more than she should to effectively perform her tasks as a teacher. The Plaintiff said that if she sat down for any longer periods then she would not be fulfilling her duties as a teacher.

There are some differences in the medical opinions provided regarding the Plaintiff’s capacity to perform her duties as a Primary School Teacher. Dr Dracopoulos said that the symptoms that the Plaintiff complained of when she consulted him in March 1988 were consistent with what he would expect if she was working three to four days per week. He said that the problems with her ankle and foot were unlikely to improve. It was his opinion that if the Plaintiff had employment of a sedentary nature then she could cope with working five days per week. Dr Dracopoulos said that duties involving being upright, such as standing at a blackboard or walking around the classroom or walking around a school, would aggravate the Plaintiff’s foot. It was his opinion that increased exercise, medication changes or alternative therapies would not be particularly helpful in enabling the Plaintiff to increase the number of days per week that she could teach. He said that the Plaintiff had a problem that was permanent and that if she had employment which permitted her to sit down as much as she liked then she could work five days a week.
Dr Sweeney’s opinion was not dissimilar to that of Dr Dracopoulos in that he felt that if the Plaintiff obtained employment where she was able to sit for most of the time then she could work five days a week. He said that if the Plaintiff’s job was so flexible that she could sit and stand when she wished then she could work five days a week, although he felt that towards the end of the week more symptoms would emerge.
Dr Stevenson, in his report of 23 March 2000, indicated that although Ms Duggan may experience some continuing symptomatology, however “... this would not be incompatable with a full time execution of her duties of a primary teaching (sic)”. Professor Bauze, in his report dated 22 March 1999, stated that the Plaintiff’s injuries did not prevent her resuming full time employment. He said that the Plaintiff would have “... difficulty squatting, kneeling, being on her feet a lot, running and walking an uneven ground”.
I did not have the benefit of hearing Dr Stevenson or Professor Bauze give evidence. Neither the Report of Dr Stevenson nor the Report of Professor Bauze record that the respective authors were aware of the difficulties which the Plaintiff said she was encountering in completing three days a week as a teacher or that she had changed her teaching methods to allow her to sit for longer periods. Dr Stevenson did record that the Plaintiff reported that her standing was limited to ten to twenty minutes and her walking was limited to thirty minute periods.
As I stated earlier, I prefer the opinions of Dr Dracopoulos where it conflicts with the opinions of other medical practitioners for the reasons I have given. I accept the evidence of Dr Dracopoulos regarding the Plaintiff’s working capacity. It follows that I reject the respective opinions of Dr Stevenson and Professor Bauze that the Plaintiff’s injuries should not prevent her from resuming full time employment as a teacher.
Ms Kathy Trankalis, an occupational therapist, was called by the Defendants. Ms Trankalis had undertaken what she described as a functional capacity evaluation of the Plaintiff on 13 April 1999. The functional capacity evaluation was not completed on that day because the Plaintiff was unable to undertake the manual handling tests because of the level of pain and discomfort she was suffering at the time. Ms Trankalis provided a written Functional Capacity Evaluation Report dated 13 April 1999. The Plaintiff returned to Ms Trankalis’ rooms to complete the manual handling tests on 17 August 1999. Following those tests Ms Trankalis furnished a Report entitled “Lifting Assessment”.
In the time between provision of the Functional Capacity Evaluation Report and the Lifting Assessment Report, Ms Trankalis prepared a Job Analysis Report on 12 August 1999. Ms Trankalis had attended at the Plaintiff’s then place of employment as a teacher at the Christies Beach Primary School for about an hour and made observations regarding the classroom and various other aspects of the School. Whilst at the School she had discussed with the Plaintiff the tasks that she was required to undertake as a teacher on a daily basis. She did not observe the Plaintiff operating in the classroom situation.
Ms Trankalis was of the opinion that the Plaintiff’s employment demands as a teacher came within the classification of sedentary to light physical demands. She said that this classification was made by reference to the Dictionary of Occupational Titles. She said that within that classification was frequent sitting and frequent standing/walking. Ms Trankalis said that the Dictionary defined “frequent” in that context as being an activity of at least 34% and up to 66% maximum of the working day.
Ms Trankalis was of the opinion that the Plaintiff had demonstrated an ability to work five days per week undertaking tasks within the level of the sedentary to light category. She said that the tasks the Plaintiff was required to undertake as a teacher brought her within that category, so she was of the opinion that the Plaintiff could work five days a week as a teacher. In giving that opinion, Ms Trankalis said that she was aware that the Plaintiff said she was barely coping with three days a week as a teacher because of the pain and discomfort she was suffering in performing her duties.
In her evidence Ms Trankalis mentioned that in her experience one of the preferred ways of returning an injured person to work was by a graduated return to work programme. She said it is a coordinated programme involving other relevant disciplines such as a medical practitioner. Ms Trankalis said the programme usually involves starting a person on approximately half time and gradually working up to full time employment. It involves graduated hours and graduated duties. The duties, she said, are selected according to the person’s medical restrictions. She described the programme as a “work-hardening programme”. Ms Trankalis said that, in her opinion, if such a programme was currently undertaken with the Plaintiff then the Plaintiff could return to five day a week employment as a Primary School Teacher within three months. She said that could be a conservative estimate as programmes are often as short as four to six weeks.
I confess to being troubled by the evidence of Ms Trankalis. It was her opinion that at the date of Trial the Plaintiff was capable of working five days a week as a school teacher without undergoing a work hardening programme. As I said a moment ago, she provided that opinion being aware that the Plaintiff said that she is barely coping with three days a week teaching because of the pain and discomfort she is experiencing. Ms Trankalis did not suggest that the Plaintiff was being untruthful in describing her difficulties. Ms Trankalis said that the Plaintiff presented genuinely during the functional capacity evaluation tests. The opinion of Ms Trankalis stands in sharp contrast with the difficulties the Plaintiff told her she was experiencing with working three days a week.
The opinion of Ms Trankalis regarding the Plaintiff’s working capacity would appear to be in conflict with her assessment of the bona fides of the Plaintiff. I think the answer to that conflict is to be found in the negative view Ms Trankalis held of the Plaintiff’s complaints of pain during the course of the functional capacity evaluation tests and her complaints of pain in her usual activities. She felt that the Plaintiff’s report of high levels of pain during the tests were out of proportion with the tasks she was undertaking and the difficulties she observed. In her Report, Ms Trankalis said that the Plaintiff’s complaint of increased discomfort was not supported by clinical signs. Ms Trankalis explained in her evidence what she meant by clinical signs. She stated that there must be clinical support for any report of pain. Whilst Ms Trankalis reached that view she did not suggest that the Plaintiff was falsifying the level of pain she reported during the tests. It would appear that she was of the view the Plaintiff’s high level of pain reported during the tests were psychologically based as she recommended psychological intervention. In her Functional Capacity Evaluation Report she suggested psychological intervention to deal with high levels of pain reported by the Plaintiff in her usual activities.
The assessment by Ms Trankalis of the levels of pain which the Plaintiff said she suffered is to be contrasted with the opinion of Dr Dracopoulos. He was of the opinion that the Plaintiff’s complaints of pain and discomfort would be what was expected from a person suffering from the Plaintiff’s injuries and working as a school teacher three days a week with some periods of time sitting down and other periods on her feet. Her views should be further contrasted with the opinion of Dr Sweeney who accepted the Plaintiff’s complaint that after about twenty minutes of standing or walking she was subjected to substantial pain in her ankle.
In my opinion, an integral part of Ms Trankalis’ opinion that the Plaintiff was capable of working five days a week is the view she took of the Plaintiff’s complaints of pain, not only at the time of the testing but also during the Plaintiff’s daily activities. I do not accept her opinion that the Plaintiff is capable of working five days a week as a teacher. It is in conflict with the opinion of Dr Dracopoulos and the opinion of Dr Sweeney. I prefer their respective opinions. They are both experienced orthopaedic surgeons and their respective opinions clearly come within their discipline. They both state that the pain is organically based. Even if it was psychologically based, as it appears Ms Trankalis believes, then the levels of pain the Plaintiff described still needed to be given appropriate credit in her assessment of the Plaintiff. The opinion of Ms Trankalis regarding the Plaintiff’s level of pain is also in conflict with the evidence of the Plaintiff. I mentioned earlier that I found the Plaintiff to be a truthful and reliable witness. I accept that she does suffer pain at the levels she describes and that it is organically based. I have no reason to doubt that she was truthfully describing the levels of pain when she was undergoing the tests set for her by Ms Trankalis. Furthermore, I have no reason to doubt that the plaintiff is truthfully describing the levels of pain she experiences when she is teaching.
Whilst acknowledging Ms Trankalis’ opinion regarding the Plaintiff’s levels of pain during the tests is only one aspect of her overall total evaluation of the Plaintiff, in my view, her failure to acknowledge its presence at the levels complained of is a significant omission. It is an omission, standing alone, which is sufficient for me to reject her opinion that the Plaintiff is capable of working five days a week as a Junior Primary School Teacher.
However, there is one further and most important reason why I reject that opinion of Ms Trankalis. I accept the Plaintiff’s evidence that she does not have the physical capacity to work five days a week as a teacher. I accept that the Plaintiff has modified her teaching methods in order to give herself less time standing and walking and more time sitting than she did prior to the accident. I also accept her evidence that three days a week teaching is the most with which she can cope. The Plaintiff’s work history demonstrates that she is an industrious woman. She attempted to return four days a week some considerable time after the accident but she was unable to maintain that number of days. I further accept her evidence that she faces difficulty towards the end of a teaching day and that when she returns home she needs to undertake procedures to provide relief from the pain and discomfort. In relation to this matter, I should also mention that Michael Bouma, the Plaintiff’s partner, gave evidence of the steps taken by the Plaintiff at the end of the day to relieve her pain and discomfort.
As I said earlier, the Plaintiff’s complaints of pain and discomfort are within the expectations of both Dr Dracopoulos and Dr Sweeney. Both medical practitioners have stated that the only way to avoid the pain and discomfort is for the Plaintiff to be on her feet as little as possible. The Plaintiff has said that with her changed teaching practice she is now at the point where she is sitting for the maximum time that is consistent with her properly fulfilling her duties as a teacher.
It will be recalled that I mentioned that Ms Trankalis also gave evidence regarding a work hardening programme. Her opinion was that the Plaintiff was capable of working five days a week without a work hardening programme. As I understood her evidence, the role which such a programme would play would be to facilitate the increase from three days a week to five days a week. However, it is important to understand that Ms Trankalis did not suggest that it was the absence of the Plaintiff undertaking a work hardening programme that is the explanation for the Plaintiff indicating she only has the capacity for three days a week. As I just mentioned, Ms Trankalis’ view of the Plaintiff’s capacity is that she can work five days a week and does not need the work hardening programme to achieve that level. However, even if I have misunderstood Ms Trankalis on this point it does not alter my opinion. I am not prepared to accept Ms Trankalis’ opinion that the Plaintiff is able to work five days a week, for the reasons I have expressed. I do not accept that if the Plaintiff did undertake a work hardening programme that she would be transformed from a person who has a capacity to work three days a week to a person who could then function at a level of five days a week.
I have so far concentrated on the Plaintiff’s capacity to teach. Most of the evidence regarding the Plaintiff’s earning capacity focused upon her capacity to function as a Junior Primary School Teacher. However, it must not be overlooked that the exercise in determining whether the Plaintiff has suffered a loss of earning capacity takes on a wider spectrum than the discrete exercise of gauging her earning capacity at the job she held both prior to the accident and afterwards. It is important to bear in mind the principles outlined in Medlin. The first question to be answered is whether the Plaintiff’s earning capacity has been diminished by reason of the injuries suffered as a result of the negligence of the Defendants. It is clear from what I have already stated, that I am of the opinion that her earning capacity has been significantly diminished as a result of her injuries. I find that the Plaintiff can no longer engage in a full time occupation where she is required to remain on her feet either standing or walking from time to time during a day for significant periods of time. Teaching is one such occupation. The type of occupation which would allow her to be employed on a full time basis would be, as Dr Dracopoulos described, one where she can be flexible so that she could sit down as much as she likes.
I now turn to consider the next question posed in Medlin which is whether that loss or diminution of earning capacity has been in the past or will be in the future productive of financial loss. In undertaking this exercise I first find that immediately prior to the accident the Plaintiff was fully utilising her earning capacity as a Junior Primary School Teacher. In the year 1995 she had a teaching contract for five days a week. It had commenced on 17 March 1995. I find that it was the Plaintiff’s intention to continue to seek employment as a teacher for five days a week.
A short time ago I mentioned that the injuries the Plaintiff suffered in the accident diminished the Plaintiff’s earning capacity and I have identified the extent of that diminution of earning capacity in relation to her occupation as a teacher. Consistent with that finding, I find that in the calendar years 1996 to 1999 inclusive, the Plaintiff was fully exercising her diminished earning capacity. Expressed another way, the Plaintiff’s physical disabilities resulting from the accident, prevented her from working in any of those years to a greater extent than she did. I find that but for the injuries she suffered the Plaintiff would have worked more than she did in each of those years. Accordingly, she has suffered loss. The year 2000 is a little different. I will deal with this difference later.
I now turn to consider in more detail the Plaintiff’s past loss of earning capacity. However, before I deal with each individual year, there is another matter which I need to address. For the purpose of calculating the past loss of earning capacity, the parties reached agreement on the gross daily pay rates for a Relief Teacher or a Contract Teacher, relevant to the circumstances of the Plaintiff. A Schedule of the agreed daily pay rates was tendered and became part of the evidence in the Trial. There is very little difference between the daily rate of a Relief Teacher and a Contract Teacher. Those rates are relevant to the assessment of the Plaintiff’s loss of earning capacity. The Plaintiff worked in both types of teaching positions prior to the accident. I have earlier made some observations regarding the differences between a Relief Teacher and a Contract Teacher. However, I think it is appropriate that I say a little more on the subject.
Elizabeth Jenkins, an employee of the Department of Education, Training and Employment gave evidence about the relief teaching programme. Ms Jenkins said that she had been employed as a Relief Teacher Organiser in the Noarlunga area for about three and a half years prior to the Trial. During her period as a Relief Teacher Organiser, she had placed the Plaintiff as a Relief Teacher on many occasions. The placement was for classes anywhere between Reception to Year 7. Ms Jenkins thought highly of the Plaintiff and included her as one of her sixty preferred teachers for relief teaching placements. In fact, she said that the Plaintiff was possibly in the top ten of her preferred Relief Teachers. Ms Jenkins said that in the First Term there was usually not as great a demand for relief teachers as was the case in the Second, Third and Fourth Terms. She said the Second and Third Terms were very busy and the Fourth Term was very busy until about the last three weeks of the term. She said that when relief teaching work was available, she could easily place the Plaintiff on each day she required it.
The Plaintiff described the manner of appointment as a Contract Teacher. She said that with respect to obtaining a contract for a particular year she was required to lodge an application with the Education Department about half way through the year prior to the year in which she was seeking a contract. If the Plaintiff obtained a contract at the beginning of a year she would generally not be informed for about two weeks after she commenced teaching at the school to which she was to be contracted. In the meantime she would be classified as a temporary Relief Teacher. Contracts were not always available at the commencement of the school year. A contract teaching position could arise in any term of the school year. In the period from 1992 to 1994 inclusive, the Plaintiff obtained contracts in each of those years. The Plaintiff preferred to obtain a contract teaching positions.
I now come to consider the Plaintiff’s claim for loss of past earning capacity for the period from 1995 to the date of the Trial. In my opinion the appropriate manner of calculating the Plaintiff’s past loss of earning capacity is to first determine the number of teaching days lost by the Plaintiff as a result of her loss of earning capacity. The next step is to calculate the net (after tax) daily income applicable to those days lost and apply that figure to the number of days lost. Mr Swan, Counsel for the Plaintiff, in his address used the Relief Teacher rate of pay to calculate the Plaintiff’s loss. Mr James, Counsel for the Defendants, used the Contract Teacher rate of pay in his calculations. In my opinion the most reasonable approach is not to use either but to use a rate closer to the Contract Teacher rate to reflect the fact that the Plaintiff was likely in each year to be employed more as a Contract Teacher than a Relief Teacher.

The accident, which led to the Plaintiff’s injuries, occurred during the holidays between the Third and Fourth Terms in 1995. The Plaintiff did not return to teaching until about June 1996. She had a contract for the Fourth Term in 1995. The Education Department paid the Plaintiff ten days sick leave. The total number of teaching days for that Term was thirty nine. As there is no evidence that the Plaintiff is required to repay the sick leave pay upon receipt of compensation, the total lost days to the Plaintiff should then be twenty-nine. Adopting a daily gross rate of $158, the net daily rate, following the deduction of tax, is $116. Applying this amount to the twenty nine days lost, the Plaintiff’s loss for that year is $3,364.
Mr James submitted that I should deduct a small amount for the fact that when the Plaintiff was working, she placed her young son in a Child Care Centre and as she was not working during this period no cost of child care was incurred by her. I am not prepared to make any deduction. The evidence is that the Plaintiff’s mother came to live with her shortly after the accident and stayed for about three months. The Plaintiff was so disabled during this early period that she could not have managed her young son without assistance. Her mother provided that assistance voluntarily. If this assistance had not been provided then the Plaintiff would have been obliged to pay for a child carer.
I have mentioned that the Plaintiff returned to work in about June 1996. From that time onwards she worked to her full but diminished earning capacity. I have already found that if the Plaintiff had not been injured she would have worked more days than she actually worked in each of the years from 1996 to 1999. I have already indicated that I consider the appropriate method of calculating the loss is to determine the number of days lost in each year. In calculating the lost days, I accept that generally the total number of school days in each calendar year was approximately two hundred and seven. The Plaintiff identified the days she worked in each of those years. The Plaintiff used her pay slips and diaries to make the calculation. She then recorded the days she worked on Calendars for each year from 1996 to 2000. Those Calendars became part of the evidence. With the aid of that evidence, the number of days that the Plaintiff lost can be assessed.
In 1996, there were two daily pay rates relevant to the Plaintiff so it is necessary to calculate the Plaintiff’s loss by reference to those two pay rate periods. Up until 28 June 1996 the Plaintiff worked eleven out of one hundred and three days. These eleven days came in the latter part of Term Two, when the Plaintiff resumed work. At the beginning of 1996 the Plaintiff said she was offered a contract at Noarlunga Downs Primary School but was still recovering so she could not accept the contract. I have adopted a gross daily pay rate of $158. The net daily rate for the period to 28 June is $116. The Plaintiff lost ninety-two days she would have worked pursuant to the contract at Noarlunga Downs Primary School. Accordingly, the total loss for this period was $10,672.
For the period from 28 June to the remainder of the year, the Plaintiff worked seventy-nine out of a possible one hundred and four days I accept that there would have been work available on the other days as she probably would have received contracts for both the Third and Fourth Terms. She has therefore lost twenty-five days. I have adopted a gross daily rate of $160. The net daily pay rate for this period is $117. Accordingly, the Plaintiff’s total loss for this period was $2,925.
The Plaintiff underwent surgery on her right ankle and foot in February 1997. As a result of the time needed to recover from the surgery, she worked only one day to 30 June. It is necessary to assess the loss before 30 June and after because the daily pay rate changed. The Plaintiff said that she did not have a contract for the beginning of that year. On past experience she would have been likely to have received a contract at some time during this period. Until that time she would have received relief work for two to three days a week. Full time relief work would have been available for the Second Term. There was one hundred and three teaching days during this period. Taking all those matters into account I assess the Plaintiff’s loss of days as seventy-eight. I adopt the gross daily pay rate as $171. The net daily pay rate for this period is $123. The Plaintiff’s total loss was $9,594. From 1 July 1997 to the end of the school year the Plaintiff worked fifty-nine days out of one hundred and four possible working days. As I mentioned earlier, in the Third Term she worked at the Christies Beach Primary School on a three day contract. In the Fourth Term she took on an extra day but found she could not cope with four days. She was required to take time off to recover. From her past history it is probable that she would have received contracts for Terms Three and Four. Her lost days were forty-five. The gross daily rate adopted is $173. The net daily rate is $124. Therefore the Plaintiff’s total loss for this period was $5,580.
In 1998 the Plaintiff obtained a contract at the beginning of the year with Christies Beach Primary School for a total period of three days per week. She was confined to three days per week as she did not have the capacity to work any further days. Once again there needs to be two calculations because of the change in daily pay rates. The total Term days was one hundred and two days. Ten days cannot be taken into account as the Plaintiff was required to undergo ear surgery and thus she was unable to fulfil her teaching duties during that period. The ear surgery had nothing to do with the accident. It is probable that the Plaintiff would have received a five day contract if she had the capacity. The gross daily rate adopted is $176. The net daily pay rate for that period is $126. The Plaintiff worked fifty two days. Therefore the Plaintiff lost forty days after reducing the total Term days to ninety two to take into account the period for the ear surgery. I will reduce the number of days by a further five days to take into account that the Plaintiff may not have received a contract at the commencement of the year and there was not sufficient relief teaching work to take its place. Accordingly, the Plaintiff’s loss was $4,410. For the remainder of the year from 1 July, the Plaintiff worked sixty-three days out of a possible one hundred and four days. The gross daily rate adopted is $187. The net daily pay rate is $132. The Plaintiff lost forty-one days. Therefore her loss for that period was $5,412.
The Plaintiff said that for the year 1999, she had a contract for three days a week for the year. She calculated that she worked one hundred and eleven days out of two hundred and seven available days. The adopted gross daily rate is $189. The net daily rate for that year is $133. Once again I am prepared to accept that but for her incapacity she would have received a five day contract. However a deduction of five days should be made for the same reasons I explained in the 1998 year. Therefore, during this year the Plaintiff lost ninety-one days which amounts to a loss of $12,103.
For the year 2000, the Plaintiff has at the present time a contract for two days a week. She said that in addition to that she has done two half days relieving. The Plaintiff also said that she had been offered a couple more relieving days but could not accept because of meetings associated with the preparation of these proceedings for Trial. It is her evidence, that to the date of the commencement of the Trial, she had worked twenty days. There were fifty possible working days during that period. Because, she has only received a contract for two days per week, the Plaintiff is not entitled to compensation in the year 2000 for the entire thirty days that she has lost. She accepts that she can cope with three days a week, although there are some difficulties. In fact she said she intends to take on an extra day per week shortly after the conclusion of the Trial. In calculating her days lost, it is necessary to take into account that she was offered relief work on a couple of days but could not accept them. In my view, the appropriate number of days lost is twenty two. The gross daily rate adopted is $196. The net daily rate is $137. Accordingly, the Plaintiff’s total loss for this period is $3,014.
In summary the yearly amounts for the Plaintiff’s lost amounts are as follows:-
1995  $3,364
1996  $13,597
1997  $15,174
1998  $9,822
1999  $12,103
2000  $3,014

TOTAL $57,074

About three months prior to the accident the Plaintiff commenced tutoring a nine year old boy. She tutored the boy at his home twice a week for a half an hour on each occasion. She received a total of $25 for both sessions. The student was directed to the Plaintiff by an organisation called SPELD. It is an organisation which arranges tutors for students who may have a disability which is limiting their education or training. Apparently, it also arranges tutors for students who may have difficulty with some particular aspect of their education. The Plaintiff had registered with SPELD. That was the first tutoring assignment she had received from SPELD since she had registered. The Plaintiff said she let her registration lapse after the accident. She said she let the registration lapse because in the period following the accident she was channelling all her energy into her work as a school teacher. She said that she spent the time that she was not working as a school teacher in resting and recuperating and felt she did not have the energy to undertake tutoring. At the time of the Trial the Plaintiff said that it was a possibility that she could undertake a little tutoring if she felt up to it and the student came to her home.
In his address Mr James submitted that I should find that for the period up to the date of the Trial the Plaintiff was not exercising her entire earning capacity. He said that if I found that the Plaintiff could only teach three days a week she could have undertaken some tutoring work. He suggested she could have tutored two hours a day on days she did not work. I am not prepared to accept that submission. I accept the Plaintiff’s evidence that during this period she was channelling her energies into her performance at school and that she was not in a position to take on further tutoring duties.
Mr James also submitted that the assessment of past loss of earning capacity should take into account that, on the days the Plaintiff did not work she saved the costs of travelling to and from school. The Plaintiff said she travelled from her home at Aldinga to school by motor vehicle. The evidence did not disclose what was the cost of travelling. In my opinion, whilst this factor should be taken into account, there are some balancing factors on the other side of the ledger. The Plaintiff’s injuries caused her to cease tutoring. There is no evidence of the term of her appointment as a tutor to the young boy. However, the fact that she was no longer able to tutor him and that she did not seek any further tutoring appointments should be taken into account. Furthermore, there is some evidence that advance to higher pay levels had been delayed due to her inability to work a five day week. In my view a modest discount from the amount assessed should be made. I assess the Plaintiff’s past loss of earning capacity at $56,000.
I now turn to consider the Plaintiff’s claim for future loss of earning capacity. I earlier stated that the Plaintiff can no longer engage in a full time occupation where she is required to remain on her feet either standing or walking for significant periods of time. She is suited to full time employment where she could be flexible so that she could sit down as much as she likes. With respect to her employment as a teacher I find that the Plaintiff has the capacity to work three days a week using the teaching methods she has adopted in order to reduce her pain and discomfort. There may be times when she may find it difficult to complete three days a week. However, she has shown strength and fortitude in the past and there is no reason to suggest she will not be able to call on these qualities again. She expressed the desire to work as much as her residual capacity will allow. She has up to now shown she has a capacity to work three days a week. It is for these reasons that I have reached the conclusion that she has a residual earning capacity which will allow her to work as a school teacher three days a week.
Whilst I have found the plaintiff’s earning capacity as a teacher has been diminished, it is important not to lose sight of the fact that the loss for which she is to be compensated is loss of earning capacity. Within the limits of her intellectual capabilities, the plaintiff could have, before the accident, undertaken any employment within her physical capacity, including employment which required her to remain on her feet for substantial portions of a working day. As a result of her injuries that earning capacity has been significantly reduced. The occupations available to her have been significantly reduced because of her injuries. In accordance with the principles laid out in Medlinit is for that diminution in earning capacity that the plaintiff is entitled to be compensated.
In assessing those damages it is reasonable to approach it by reference to her employment as a teacher. The evidence indicates that, at the time of the accident, the plaintiff will in the future continue to be employed as a teacher. However, it is often said that nothing stays the same. The point was made by Mr James in his address, when he stated that like other occupations the teaching profession is under threat. Therefore, whilst it is reasonable in making the assessment to have reference to the Plaintiff’s employment as a teacher, such assessment must not focus solely on that approach.
The first step in the assessment is to calculate the Plaintiff’s weekly loss in money terms resulting from her loss of capacity to work as a teacher for five days a week. In undertaking this exercise I have adopted the gross daily rate of $196. This is the same rate as I used in calculating the Plaintiff’s loss for the year 2000 up to the date of Trial. If the Plaintiff had the capacity to work five days a week then at the date of the Trial her gross annual salary would have been $40,572. This sum is calculated on the basis that the Plaintiff would have worked the entire school year amounting to two hundred and seven days. The weekly pay, based upon the two hundred and seven days or approximately forty one and a half weeks, would have been $977. Using the income Tax Schedule which the parties agreed was applicable and using the relevant rate of “Tax free threshold no leave loading”, the net weekly pay would have been $683. Thus the Plaintiff’s annual net pay based upon forty one and a half weeks would have been $28,344.
It is important to recognise that Actuarial Tables used to calculate the value of $1 per week are based upon the premise of a fifty two week year. It is therefore necessary to determine the Plaintiff’s loss calculated on a fifty two week year in order to apply the Actuarial Tables. If this is not done then the Plaintiff would be over compensated. The Plaintiff’s weekly loss based upon a fifty two week year is achieved by dividing fifty two into $28,344. Therefore the Plaintiff’s weekly loss is $545. The daily loss calculated on a five day working week is $109 net. As the Plaintiff has lost two days a week then her loss is $218 a week.
There is no evidence of the retiring age of a teacher. Both counsel in their submissions assumed that the Plaintiff was entitled to be employed as a teacher up to sixty five years of age. The Plaintiff did not indicate what was her intention regarding the time of her retirement. However, there is nothing to suggest she would not have worked until she was sixty five years of age. She is unmarried although, as I mentioned earlier, she currently lives with her partner. It is the type of occupation where it is possible that a person in the Plaintiff’s position is likely to work until she becomes sixty five. Accordingly, for the purpose of applying the Actuarial calculations I propose to adopt the age of sixty five as the age of her retirement. It was agreed by Counsel that the value of a regular loss of $1 per week to a female aged 40 and ceasing at age 65 using a compound interest of 5% per annum is $733. I have found that the Plaintiff’s weekly loss is $218. Using the multiplier of $733, the Plaintiff’s loss to age 65 years is then $159,740.
So far, there appears to be an air of precision regarding the assessment of the Plaintiff’s damages for future loss of earning capacity. However, there are other matters which need to be taken into account which are imprecise by nature. The contingencies which need to be taken into account are both favourable and unfavourable.
At the time of the accident the Plaintiff was currently working as a Contract/Relief Teacher five days per week. My finding is that she now only has the capacity to work three days per week. The effect of that incapacity is that if she continues as a Contract/Relief Teacher then she is restricted in the choice of contracts that she can take up. This choice may lead to her having to accept a contract of less than three days because that is the only type of contract available within her working capacity. On the other hand, the evidence indicates that there is plenty of relief work available at the present time. In my view, I need to take into account the possibility that the Plaintiff will not at all times be able to obtain a three days per week contract because of the range of options being less than would have been available to her but for her injuries. I also need to consider that there may not always be relief work available to fill the void left by the Plaintiff not receiving a three day per week contract. On the other hand as a factor on the other side of the ledger I also need to take into account that if she was not injured there may not always be available to the Plaintiff teaching work which would have enabled her to obtain employment five days a week. I have already referred to this factor when dealing with the assessment of past earning capacity.
The Teachers Award provides that the salary rate of a teacher with the experience of the Plaintiff increases from time to time, up to a maximum sum for an advanced skilled teacher. The increases are calculated upon the number of teaching hours which is undertaken by the teacher. Because the Plaintiff is not able to work at her full earning capacity, moving to a higher rate of pay will come more slowly than if she was operating at full capacity. Although not of great significance, this factor also needs to be taken into account.
In assessing the Plaintiff’s future loss, it is also necessary to consider the effect which the onset of arthritis will have on the Plaintiff. There was really no dispute between the medical practitioners that the Plaintiff would probably suffer arthritis in her right foot and ankle and that could occur after about ten years. Dr Dracopoulos said that there was a possibility that arthritis could emerge in the next five to ten years. The onset of arthritis will bring with it increased pain and discomfort. As a result, the Plaintiff may find it more difficult at times to complete three days per week. This could lead to the Plaintiff’s range of contract options being further diminished leading to her having to become more reliant on relief work.

I also need to take into account the usual vicissitudes which might effect earning capacity, such as sickness, non-compensable injury and unemployment (Campbell v Nangle (1985 -86) 40 SASR 161 at 186). These are unfavourable contingences.
A further matter to consider is the possibility that the Plaintiff will be able to undertake some occasional tutoring work if she feels that she has the capacity to do it. The evidence does suggest that there would be a great deal of tutoring work. However, it is a matter that needs to be taken into account.
I mentioned earlier that the Plaintiff is to be compensated for her loss of earning capacity. In assessing her loss I have used her employment as a teacher as the basis of the assessment as I have found that she is likely to continue to seek employment as a teacher. However, if for any reason such employment is not available to her then her opportunity to seek other employment has been substantially diminished by her injuries. Furthermore, if she is required to seek other employment she will be, in most cases, be competing with other applicants who are not suffering from any disability. (Wade v Alssop (1976) 10 ALR 353 at 361; Versace v Messer (1993) 172 LSJS 409 at 413-414).
In my view the unfavourable contingencies are virtually balanced by the favourable contingencies. Only a modest reduction from the amount I have calculated is required. Accordingly I assess the Plaintiff’s future loss of earning capacity at $150,000.
The next head of damages claimed by the Plaintiff is gratuitous services provided by the Plaintiff’s mother, Valerie Duggan. She moved into the Plaintiff’s house two days after the accident and remained there for about three months. During this time she cared for the Plaintiff, including preparing her meals, taking her to the toilet and shower and assisting with her personal hygiene. Mrs Valerie Duggan also cleaned the house and did the shopping. It is not disputed by Mr James that the Plaintiff was entitled to be compensated for such gratuitous services provided by her mother. It was agreed that the hourly rate for the provision of services of the kind which Mrs Valerie Duggan supplied is sixteen dollars. I assess damages for gratuitous services at $3,500.
With respect to the Plaintiff’s claim for damages for future medical expenses, I find that she will need to make occasional visits to her general practitioner, particularly with the onset of arthritis. She will need to take analgesics from time to time, in order that she can cope with the pain and discomfort. In my view that is the extent of the Plaintiff’s claim for future medical expenses. I assess that claim at $1,500.
Finally, the Plaintiff’s claim for special damages has been agreed at $2,459.35.
By way of summary, I assess the Plaintiff’s damages as follows:-
·.. Pain and suffering and loss of enjoyment and
amenities of life  $26,100
·.. Past loss of earning capacity  $56,000
·.. Future loss of earning capacity  $150,000
·.. Future medical expenses  $1,500
·.. Gratuitous services  $3,500
·.. Special damages  $2,459.35
Total  $239,559.35
Accordingly, the Plaintiff’s damages are assessed at $239,559.35. There will be judgment for the Plaintiff against the Defendant for that amount.
I will hear the parties regarding interest and costs.

[2000] SADC 94

2 August 2000