Friend v Rye
[2000] QSC 502
•7 December 2000
SUPREME COURT OF QUEENSLAND
CITATION: Friend v Rye [2000] QSC 502 PARTIES: LYNDA KAYE FRIEND (formerly JAMES)
(plaintiff)
v
BARBARA RYE
(defendant)FILE NO: S2021 of 2000 DIVISION: Trial Division DELIVERED ON: 7 December 2000 DELIVERED AT: Brisbane HEARING DATE: 21, 22, 23 November 2000 JUDGE: White J ORDER: Judgment for the plaintiff against the defendant in the sum
of $135,264.92.CATCHWORDS:
NEGLIGENCE - causation - plaintiff/paralegal injured in car accident on way to work - plaintiff subsequently suffered from neck and shoulder injuries and lower back and sciatic injuries - whether lower back and sciatic injuries caused by the car accident - assessment of damages.
Mott v Fire & All Risks Insurance Co Ltd [2000] 2 Qd R 34, considered
COUNSEL: M Grant-Taylor SC for the plaintiff
PV Ambrose for the defendantSOLICITORS: Cranston McEachern for the plaintiff
Quinlan Miller and Treston for the defendant
| [1] | WHITE J: This is an assessment of damages pursuant to Rule 509 of the Uniform Civil Procedure Rules. Summary judgment was entered on 3 February 2000. |
The plaintiff (“Mrs Friend”, referred to by her maiden name of “James” in many of the reports) was born on 14 January 1969. She sustained personal injury on 8 June 1994 when she was travelling to work as a passenger in a motor vehicle driven by the defendant which went out of control on a curve and ran off the road, over an embankment and down into a ditch near Narangba. Mrs Friend was then aged 25 years and employed as a paralegal by the law firm Cranston McEachern at their Strathpine office.
The issues
The major issue for determination is whether Mrs Friend sustained an injury to her lower back in the motor vehicle accident as well as the admitted injury to her cervical spine and shoulder. Mrs Friend is adamant that although the dominant pain and disability immediately following the accident concerned her neck and left shoulder she also experienced low back discomfort immediately which gradually increased in intensity. After a short period she says that she experienced sciatic-type pain down her left leg and, to a more limited extent, in her right posterior thigh. She maintains that she told her treating doctors, physiotherapist and solicitors as well as the doctors to whom she was sent for medico-legal purposes of her low back and left leg symptoms from the beginning but that they ignored what she had to say. The first unambiguous documented complaint of low back and left leg pain does not appear until October 1995 but even then Mrs Friend contends that for the most part those reports erroneously state that she gave a history indicating that the onset of this low back and sciatic pain did not become a problem until approximately 12 to 16 months after the accident. On the other hand, three “lay” witnesses - her husband and two former work colleagues - place her complaints about her low back/sciatic pain close to the time of the accident.
If Mrs Friend’s low back symptoms did not manifest themselves until more than a year after the motor vehicle accident, it is most unlikely that they are referable to the trauma sustained in the accident. Even if they were apparent some months after the accident the medical opinion is that the accident is most unlikely to be the cause. Apart from some pre-existing degenerative changes noted in her cervical and lumbar spine no other cause for her symptoms is apparent and such symptoms, in an otherwise healthy young woman, are said to be unusual.
It is not seriously submitted that Mrs Friend’s present symptoms are not as she contends although her need for assistance is said by the defence to be less than claimed. She still manages a full time job as a paralegal but spends much of her non-working time resting.
If, as the defence contends, Mrs Friend’s lower back and sciatic symptoms and their consequences were not caused by the motor vehicle accident her quantum of damages is relatively modest. If the findings are as are contended for on behalf of Mrs Friend then she is entitled to significant damages, since it seems likely that she will be unable to work to the expected retirement age.
It is, I think, fair to comment that Mrs Friend was and still is a very hard-working and strong-minded young woman. She has persevered with her full-time employment despite chronic and quite disabling pain. She gave her evidence in a forceful and voluble fashion. Doctor J Chalk, a psychiatrist who assessed Mrs Friend in December 1997, described her behaviour during the interview as “consistently animated and there was a histrionic element to her presentation … she communicated well” (exhibit 9). Although she has had bleak periods during the worst of her pain she has not been treated for psychiatric disturbance and does not contend that there are any psychological sequelae from her injuries.
Background
It is necessary to consider briefly Mrs Friend’s history pre-accident to put her life subsequently into proper perspective. Her family and educational background gave her no advantages in life materially, and, it would seem, emotionally (exhibit 9). She completed year 11 at school and commenced work at Paddy's Markets and then obtained office work. From the age of 18 she worked with the law firm Cranston McEachern as a conveyancing clerk and paralegal where she remained for approximately 9 years. In 1996 she commenced work at Minter Ellison in Brisbane in a similar position and remained until October 1998. Thereafter she worked for several firms of solicitors until she took up her present position as a paralegal at the beginning of this year with O’Shea Corser and Wadley. There may have been personality issues involved but to a large extent Mrs Friend’s employment moves since the accident have been occasioned by her need to rest and take time off work because of her health problems. She left Minter Ellison at the end of 1998 with a glowing reference (exhibit 35). Prior to the accident Mrs Friend had several part time jobs as a bar attendant in the hotel and leisure industry in addition to her work as a paralegal, on occasions up to three other part time jobs at the same time. She continued to persevere after the accident when she was able to return to work, but the pain in her neck and shoulder meant that she could not carry plates and glasses and do other heavy tasks. She was able to avoid the heavier work for a time but even this lighter work proved too much and ceased by the end of January 1995.
Mrs Friend worked at this level because, she said, she enjoyed the variety and because she had resolved to purchase her own house by the time she was 17, which she did, and have that house paid off and an investment property by the time she was 40. She said that she wished then to taper off her work. Mrs Friend and her now husband bought several acres of land at Narangba, built and furnished a large comfortable house which they planned as their long-term family home and planted and developed an extensive garden. Mr Friend is a bank officer and he, too, engaged in part time work as a bar attendant. Mrs Friend’s particular hobby was training German Shepherd dogs for showing. She had had some success. She intended to breed and had one litter immediately before the accident. She had earlier arranged to take a month’s holiday just after the accident to show a recently acquired young dog but was unable to do so because of her injuries. She took the leave nonetheless to recuperate from the accident. Mrs Friend had had no significant ill health prior to the accident and, in particular, had not experienced neck or low back pain.
| [10] | The picture is one of an energetic, focused (almost obsessively so) extremely hard-working person with plans for the future which were steadily being realised. |
The accident
On 8 June 1994 Mrs Friend was travelling to work at Strathpine with a neighbour, the defendant, who lost control of the car on a curve. Mrs Friend closed her eyes and noted a dropping sensation followed by a period of bouncing along rough ground before coming to a halt near or in some trees. The car had gone down an embankment. Mrs Friend and the defendant managed to get out of the car and started to scramble up the embankment. They were assisted by some Telecom workers and driven into Strathpine where Mrs Friend attended a general practitioner, Dr M Callan.
Symptoms immediately following the accident
Mrs Friend could not move her head and felt very sore in her neck and rather sick. She said that she “only had a very mild pain” in her back (t/s 18). By this she was understood to be referring to her lower back. She was immediately recommended physiotherapy and attended upon Ms Debbie Bailey who continued to treat her for some years.
Doctor Callan prescribed pain relief medication and muscle relaxants. Mrs Friend had bed rest at home and daily physiotherapy on her neck. She said that she experienced a dull ache in her lower back and a burning pain in her left leg and that Ms Bailey suggested that she should put a pillow under her legs to take the pressure off her back. Her mother, who had been a nurse, suggested that since she (the mother) had suffered from poor leg circulation this might explain the ache in her daughter’s legs. The inference, which I think was to be drawn from this evidence, was that little was said about the low back/leg symptoms outside the family and it was expected that once Mrs Friend was up and about again they would resolve.
Mrs Friend recalled an episode involving traction to her neck given by Ms Bailey. She said that this occurred during the period immediately following the accident before she returned to work. As soon as traction commenced Mrs Friend felt a shooting pain down her left leg and part of her right leg and stopped the traction pull by use of an emergency button. A few days later traction was tried again with a similar result. Mrs Friend said that Ms Bailey commented that “something might have happened to my discs” (t/s 21).
Ms Bailey’s clinical notes are no longer available but she did have them when she prepared a report for Cranston McEachern on 24 November 1995 (exhibit 4). She had previously sent short hand-written letters to Dr Callan noting Mrs Friend’s progress. Ms Bailey was unable to recall the traction episodes but did not suggest that they would not have occurred. She suggested that she would not have put such an episode in a report to the general practitioner but may have made a note to herself to avoid traction with Mrs Friend in the future. She said that if complaints of low back and leg pain had been made she would not necessarily have made a note about it. In her evidence in cross-examination by Mr Ambrose she said
“Question: If she had made the complaints earlier, you would have
expected to have reported on those?--Answer:
No. Not necessarily. If she came in in the first instance with really bad neck and thoracic spine pain, complaining of that, and said to me, ‘Oh, I’ve got a bit of a sore back.”, or, ‘I’ve got a bit of pain in my low back and it’s sort of running a bit down the leg.”, that would have been seen as being a secondary thing that you - we wouldn’t have looked at at that stage, because you concentrate on what’s the most painful, yes. So I may not have mentioned it in this report because it wasn’t a huge thing. It wasn’t what we were concentrating on in the instance” (t/s 145).
Mrs Friend was asked by her solicitors to prepare a statement about the accident and its consequences. This she did and dated it 20 June 1994, two weeks after the accident. It is a brief document, only half a typewritten page. After describing the incident itself she wrote
“After climbing out of the car I was already suffering some pain in my neck and shoulder. The car was towed away and I was given a lift to work and from there I went down to the doctors who put me on Workers’ Compensation and referred me immediately to the physio. At this stage I have been going to the physio daily and have been told that I have severe whiplash. After having traction which caused severe back pain for approximately 12 hours they also seem to think that I have damaged the disks in my neck. … ”
As described the back pain would seem more likely to be a reference to cervical or thoracic back pain than to low back pain and there is no mention of sciatic pain.
Ms Bailey’s note to Dr Callan of 17 June 1994 confirmed the reference to her discs but whether in respect of the neck or, as Mrs Friend would now have it, her lower back is not clear.
“Lynda is showing slow progress and though has reasonable ROM [range of movement] is still very sore. She is showing signs of disc irritation and is proving difficult to settle” (exhibit 4).
The x-rays of the cervical spine show some degenerative change and a possible small fracture which would tend to suggest that Ms Bailey’s reference to disc irritation is to the cervical spine.
X-rays performed on the day of the accident were read by Dr Cowderoy (exhibit 1) who reported that they showed a slight narrowing of the C4/5 disc space with a little more separation of the spinous processes at that junction than elsewhere in the cervical spine. No fracture or dislocation was seen. Dr Cowderoy commented that the appearance might be due to developmental causes or possibly trauma. Subsequently, Dr L Toft and Dr John Fraser, both orthopaedic specialists, in their reports of 16 August 1994 (exhibit 19) and 15 December 1995 (exhibit 18) on viewing this x-ray considered that pre-existing degenerative change was shown. A report by Dr R Stowasser of 9 May 1995 (exhibit 2) of a CT scan taken that day noted that no abnormality was seen at the C4/5 through to the C6/7 level and no fractures were identified. However, Dr WJS Earwaker reported seeing “a fracture involving the upper vertebral end plate of C5” and noted some osteophyte formation at C4 on 27 July 1995 (exhibit 3). In November 1995 Dr G Ohlrich, a neurologist, considered that the July 1995 x-rays suggested a small fracture in the region of C5 which was likely to have been caused in the accident (exhibit 21).
Dr Callan’s report to Cranston McEachern of 27 July 1994 makes no reference to any complaints of low back symptoms or left leg symptoms. Neither do his clinical notes which related to Mrs Friend’s cervical spine and upper thoracic spine. Dr Callan thought it surprising that over many visits from 8 June 1994 to 14 December 1995 when Mrs Friend was last seen at the practice, that there was no reference to complaints of low back and/or left leg sciatic pain although complaints (other than in respect of the neck, as I understood his evidence) are noted. Neither is there any reference to low back or left leg sciatic pain in the notes of Dr Downes who had been a member of the practice and who also saw Mrs Friend.
In cross-examination Dr Callan did agree that a lay person may not have an understanding of the pathology involved in the sciatic nerve distribution and its connection with an injury to the low back. He also agreed that if cervical traction brought on severe leg pain that might cause a patient to be confused as to the source of the pain, but again, there is no mention of leg pain of any kind let alone of the grossly disabling kind described by Mrs Friend.
Dr F Tomlinson, a neuro-surgeon, who was consulted by Mrs Friend for a medico-legal report on 25 July 2000 suggested in cross-examination that it was not an uncommon occurrence when a person had a number of problems for the focus to be on the one “most pressing at the time” (t/s 109). He expressed the view that that was likely to have occurred to Mrs Friend since she had experienced very severe symptoms in her neck which took a long time to settle. However, Mrs Friend’s evidence was that the neck pain did not disguise the knife-like pain in her back (t/s 52).
Ms Sharon Dungey, a solicitor, worked with Mrs Friend at the Strathpine office of Cranston McEachern while she was an articled clerk. She thought that they first met towards the end of 1988 and because the office was so small they formed quite a close relationship within the office. She recalled an occasion when Mrs Friend, whom she said was still off work after the accident, came into the office after visiting the physiotherapist in tears and described the traction incident. She said that Mrs Friend was complaining of pain in her legs.
Ms Dungey said that she could recall Mrs Friend complaining that the medical treatment which she was receiving focused on her neck but ignored her leg. Ms Dungey, who had once been a yoga teacher, massaged Mrs Friend’s neck and shoulder area as well as her buttocks thinking that Mrs Friend’s pain might involve her sciatic nerve. She said that this informal massage commenced when Mrs Friend returned to work and continued for about six months or more. Ms Dungey had a vivid recollection of Mrs Friend visiting her home in March or April 1995 and being unable to walk down a slope because of pain in her leg. Although they walked in another less challenging direction Ms Dungey said that she had to support Mrs Friend with her arm because of her leg problem. Ms Dungey seemed confident that Mrs Friend’s complaints about her back and particularly her leg pain started shortly after the accident and continued regularly thereafter. She noted that initially Mrs Friend had no limp but that in due course it became apparent.
Ms Kim Marks worked as Mrs Friend’s secretary at the Strathpine office. She had no precise recollection of when Mrs Friend first commenced to mention her low back and/or leg pain. She was confident that it was well before the Strathpine office closed in December 1995. She thought that the complaints started straight after the accident and she was able to recall one or two specific instances - one where Mrs Friend described her leg as feeling “dead” - but was unable to give even approximate dates. She did recall Ms Dungey massaging Mrs Friend’s neck, shoulder and lower back. In cross-examination she was less certain about time but was clear that the complaints of low back pain were articulated before the move from Strathpine in December 1995.
Finally, Mr John Friend, Mrs Friend's husband, gave evidence that he was asked by his wife to massage her buttocks and leg to ease the pain shortly after the accident. He denied that those symptoms did not commence until about October 1995. He said that his wife would get frustrated and distressed that the doctors were not listening to her but “were only interested in what they thought they were there for” (t/s 139). He said she limped “from the beginning” but that was not Mrs Friend’s evidence. She said, in effect, that her limp was noticeable from the end of 1994 or, at the latest, at the beginning of 1995.
This failure to react to Mrs Friend’s complaints of low back pain was reflected in the District Court plaint settled by counsel (not present counsel) dated 26 September 1994. The injury pleaded was “a severe whiplash injury to her cervical spine” (exhibit 27). The statement of loss and damage filed pursuant to the then rules by her solicitors dated 2 December 1994 stated
“The plaintiff suffered from neck pain, left shoulder pain, left upper pain [sic] and headaches following her accident which gradually improved however some pain is still present” (exhibit 29).
Reported symptoms from July 1994
Mrs Friend was sent by her solicitors to Dr L Toft for a medico-legal examination and report on 26 July 1994. This was at a time when she was receiving regular physiotherapy from Ms Bailey and was still experiencing considerable neck and shoulder pain which was easily aggravated. A hydrotherapy program was introduced towards the end of July “in an effort to increase her exercise tolerances and build strength of neck and thoracic spine” (exhibit 4). When Dr Toft prepared his report (16 August 1994) he referred to Mrs Friend’s complaints of “frequent frontal and occipital headaches and pain in the left side of the neck radiating into the left shoulder region and shoulder blade and sometimes into the backs of both of her arms”. He added “she notes also that her neck and back ache by the end of the day” (exhibit 19).
Dr Toft provided further reports to Mrs Friend’s solicitors after examining her on 27 July 1995 and 23 July 1996. The continuing concern with her neck is evident. She had had a flare-up of neck pain and a restriction of movement in approximately April/May 1995 and was treated again by Ms Bailey. Dr Callan had put Mrs Friend in a soft collar which had assisted. She told Dr Toft that minor episodes aggravated her neck. As mentioned, Dr WS Earwaker reported on x-rays taken on 27 July 1995. He concluded, and Dr Toft agreed, that they showed a small fracture involving C5 and more significant damage at C4-5 than was evident on the x-rays at the time of the accident. Dr Toft thought that Mrs Friend would experience further degenerative change and the presence of the fracture tended to explain the onset of sudden neck pain. He concluded that this condition would amount to a 10 per cent loss of bodily function in a year or two when the injury stabilised.
In mid-1996 Dr Toft reported that low back pain and left sciatic pain were Mrs Friend’s principal complaints although she was still using a neck brace when travelling. He concluded that
“This lady has probably suffered a whiplash type of injury to her back as well as her neck in the incident of 8.6.94. In fact, my original records of 26.7.94 record the fact that she did say she injured her back in the accident” (exhibit 19).
He noted that she said that the sciatic pain commenced some six weeks after the accident and that 2-3 months after the accident she developed low back pain of an aching nature which she had had ever since.
Dr Toft’s position appeared to alter rather dramatically by 29 September 2000. He responded to a letter from Quinlan Miller & Treston, solicitors for the defendants, to the effect that after the initial consultation he made no note of complaints of low back pain and that if Mrs Friend had done so he would have examined her lumbar spine which he did not. He referred to his earlier report and said
“I expressed the view in my report of 2/8/96 that she had probably suffered a whiplash-type injury to her lower back in the incident of 8/6/96. In the absence of any significant radiological changes, my view would have been that this would have constituted a musculo ligamentous-type injury and as such could cause ongoing symptoms for a while but not be associated with any permanent bodily impairment” (exhibit 20).
He thought it unlikely however that the development of symptoms more than a week or two after the incident could be directly due to the injuries suffered in the accident. He came to this conclusion notwithstanding that he had come to the opposite conclusion after noting that Mrs Friend mentioned that the symptoms began about six weeks after the accident in his earlier report.
As to Mrs Friend’s neck injury, Dr Toft considered that there would have been
“Some aggravation of the pre-existing degenerative condition and I believe that this lady is likely to have been left with a degree of bodily impairment as a result. However I would not be able to support a contention that the injury would have materially affected the natural progression of the pre-existing condition and therefore any ongoing symptoms or any future deterioration or complication would be due to the natural progression of that pre-existing condition with a small contribution from the effects of the accident.”
In cross-examination Dr Toft said that he had revised his opinion of what he meant when he noted on the initial consultation that Mrs Friend said that she had hurt her “neck, shoulders and back” and that it was a reference to the upper part of the back because he had not referred elsewhere to the lower back. He was unable to point to anything which had changed since he prepared his report of 2 August 1996 and accepted Mr Grant-Taylor’s suggestion that there was no real reason to depart from the view which he had expressed in that report (t/s 104). Nonetheless, Dr Toft’s reference to “back” must surely be to the upper back. It is consistent with Mrs Friend’s complaints of pain in her upper back associated with the shoulder pain and, as Dr Toft observed, there is no investigation of her lower back - a surprising omission if he had recorded a complaint of low back pain.
Doctor G Ohlrich, a neurologist, saw Mrs Friend on 11 October 1994, some four months after the accident. He gave evidence that the consultation lasted an hour, that he examined the whole of Mrs Friend’s spine and took detailed notes of the consultation. He said that had she made any complaints of low back and/or sciatic symptoms he would have investigated them. She gave a detailed account of the pain in her neck, left shoulder and thoracic spine extending on some occasions into her left upper arm as far as the elbow. This was almost identical to the description recorded by Dr Toft who had seen Mrs Friend some three months earlier. She described headaches which were sometimes very severe lasting from a couple of hours to half a day. Those headaches occurred at least three times a week but sometimes appeared to be continuous and Mrs Friend thought that they were related to her neck problem. Doctor Ohlrich reported
“She said that if there is ache in the shoulders, back and neck then she gets a headache. Her headache is worse if her neck pain is bad” (exhibit 21).
Despite Mr Grant-Taylor obtaining a concession from Dr Ohlrich that he assumed that Mrs Friend was referring to her thoracic back without asking her specifically, it seems correct that his reference is to her thoracic spine when considered in the context of her description of pain in the left shoulder blade associated with her neck pain.
Mrs Friend told Dr Ohlrich that although she continued in her full time occupation she was restricted in the work which she could do as a bar attendant and waitress, for example, experiencing difficulty in carrying plates and could do only light duties. She said she was also limited in her activities at home because of her symptoms and was unable to do the vacuum cleaning or to clean windows. Neither was she able to continue working with her German Shepherd dogs because they were too heavy. She told Dr Ohlrich, as she said in evidence, that she had difficulty in doing her long hair because of the pain in her neck and arms. Despite recording this detail, according to Mrs Friend, Dr Ohlrich chose to make no reference to low back or sciatic pain.
When Dr Ohlrich examined Mrs Friend in November 1995 he had, like Dr Toft, the assistance of the x-rays of July 1995. He agreed with Dr Toft that they showed more significant damage at the C4/5 level than was evident on the x-rays taken at the time of the accident which he had described as “normal” and thought that the irregularity at C5 suggested a small fracture at that region which seemed to have occurred at the time of the accident. He concluded, like Dr Toft, that Mrs Friend would be prone to further degenerative change at the C4/5 level. He expected her disability to improve and to leave her with a permanent partial disability of 5 per cent of whole body function. Should the degeneration continue then her disability might rise to 10 per cent.
Doctor Ohlrich reported that Mrs Friend told him during “the last 12 months” that she had experienced sciatic pain spreading from the left buttock down the back of the left leg. She also mentioned to him that about “two months ago” neck traction had seemed to aggravate her sciatic pain. Dr Ohlrich was unable to relate these symptoms to the motor vehicle accident because, as he said in evidence, of the long lapse of time between the accident and the onset of the symptoms. He agreed that if Mrs Friend had a severe exacerbation of low back pain coupled with sciatic symptoms as a result of cervical traction performed within two weeks of the accident that would tend to confirm a causal link between the symptoms and the accident. Dr Ohlrich was, however, quite unpersuaded that he had incorrectly noted the onset of the sciatic symptoms and that they were much earlier than 12 months prior to the consultation in November 1995. Although he conceded that it was possible that Mrs Friend may have been rather vague about the time span he was adamant that when he saw her four months after the injury there was no complaint of low back pain or sciatica.
Dr John Fraser examined Mrs Friend for a medico-legal report on 12 December 1995. He recorded that Mrs Friend was then experiencing intermittent neck pain which she located on either side of her neck and extended to the left leg. Mrs Friend told him that this leg pain was first noted one year ago. He recorded no reference to any low back pain. I have dealt with his interpretation of the radiographical evidence. On examination he found no apparent abnormality in the left lower limb. Dr Fraser concluded that Mrs Friend might be in the small group of patients who experience continuing symptoms beyond the usual two year period for resolution of cervical soft tissue injury.
Doctor Fraser reviewed Mrs Friend in March 1999 after she had had an operation to implant a nerve stimulator in her spine for the relief of her back pain in February. The examination was, accordingly, somewhat limited. In addition to complaints of neck pain, Dr Fraser had recorded Mrs Friend as saying that she first noticed a dull pain in her lower back on the same day as the accident. She told him that she then developed left leg pain 4-6 weeks after the accident. Because of this history of early low back pain Dr Fraser concluded that the disability associated with her lumbar spine was attributable to the accident. He was subsequently asked to review his opinion in the light of a number of reports in 1994 as well as his own previous report. He then noted that there was no mention of low back pain when he interviewed and examined Mrs Friend on 12 December 1995 and neither did the reports of Dr Callan or Dr Toft give a history of symptoms related to the lumbar spine so he concluded
“… that had the motor vehicle accident been the precipitating cause of her disabling back condition that she would have had very significant pain and restriction of function of the lumbar spine dating from the time of the accident itself.”
Mrs Friend had changed general practitioners in 1996. In response to her complaints of severe low back and sciatic pain she was referred to Dr McCombe, an orthopaedic surgeon who first saw her on 2 August 1996. She told Dr McCombe that about six weeks after the accident she developed a burning pain down the back of the left leg from the buttock radiating from the rear of her thigh to the knee and occasionally radiating to her calf. She told Dr McCombe that she had some back pain at the time of the accident but that her original treatment was devoted to her neck as this had the most severe symptoms.
Doctor McCombe noted that Mrs Friend had a pre-existing lumbar scoliosis. He generally agreed in cross-examination that such a person is more likely to suffer a traumatic disc disruption than a person with a healthy spine. He noted a posterior annular tear at L5/S1 and a small right mid-line disc herniation. Dr McCombe performed a laparoscopic fusion using an implant device. Although Mrs Friend’s back pain improved her leg pain became worse. There was some suggestion of impingement by disc material and prosthesis against the right L5 nerve root. A revision procedure was performed to correct the position of the prosthesis and there was then a significant resolution of her leg pain. Unfortunately Mrs Friend developed persistent back pain and she underwent a stabilisation of the fusion with screws and plates in December 1996.
Doctor McCombe concluded
“Prior to the accident in question she would have experienced a lumbar scoliosis and this may have had some bearing on the onset of her pain following the accident. The natural history of lumbar scoliosis is such that there is some risk of increased low back pain in patients who do have a lumbar scoliosis though this is not great. Therefore I believe that the accident was mainly responsible for causing her pain by disrupting the L5/S1 intervertebral disc though this may have been slightly more likely to be disrupted because of the lumbar scoliosis.”
Mrs Friend was placed on a strong drug therapy regime to assist with her neuropathic pain by Dr James O’Callaghan, an anaesthetics specialist. She was unhappy about such large doses of drugs which in any event caused her nausea. In January 1999 Dr O’Callaghan inserted a temporary electrode for a trial of spinal cord stimulation which gave her considerable pain relief. On 15 February 1999 Dr O’Callaghan implanted a permanent spinal cord system. There were some complications and on 12 March she had another operation to replace the pulse generator. Subsequently the stimulator failed to work correctly and Mrs Friend had a further operative procedure later in March. Thereafter the stimulator appeared to work well and provided some pain relief. Doctor O’Callaghan concluded that while Mrs Friend would receive ongoing relief from the stimulator she would have chronic pain for the rest of her life. The stimulator would need replacing every four or five years or approximately six times during her life.
Finally, Mrs Friend was asked by her solicitors to keep a pain diary which she did. Neither counsel tendered it, but Mrs Friend agreed with Mr Ambrose in cross-examination that it did not contain any reference to low back/sciatic pain. She said that this was because she was told to focus on her neck and shoulder pain, then understood to be the sequelae of the accident, but it is quite extraordinary if, as she contends, the low back and left leg sciatic pain was so severe that not one word in respect of it finds its way into the diary.
Conclusion
There is no doubt that this is a very difficult issue to resolve. The failure of the physiotherapist and the doctors (people whose training and experience, particularly for those doing medico-legal work, dictates careful noting of symptoms) to make any contemporary note of the low back/sciatic symptoms until towards the end of 1995 suggests that her complaints were not being made with anything like, if at all, the vehemence that Mrs Friend now urges. It is, unfortunately, the case that in some personal injury cases from time to time some medical practitioners incorrectly record details of the history given by the patient or omit to note something said in passing. Much trouble and time is often spent resolving these errors. Tape recording medico-legal consultations would be of considerable assistance in avoiding these kinds of controversies. It is, however, beyond likelihood that so many could have neglected, or, even more astonishingly, as Mrs Friend contends, refused to note, let alone refused to listen to, complaints of sustained and disabling pain in a different part of the patient’s body from that which was expected. And why, it might be asked, did the doctors decide to report these complaints after all, in 1995 and thereafter? But even then, Mrs Friend contends that the doctors erroneously recorded her as saying that her low back/sciatic symptoms had not commenced until, at the earliest, the end of 1994. She says that she clearly told them that the low back pain commenced immediately following the accident. As was apparent when she gave her evidence, Mrs Friend is articulate and forceful. As Dr Chalk noted, she is a good communicator. So, unlike some plaintiffs who are inarticulate or shy, if she were saying something I am confident it would have been heard and understood.
On the other hand, there is the evidence of Ms Dungey of two incidents indicating low back and sciatic pain. One from the traction whilst Mrs Friend was still on leave, the other during the visit to her home in March/April 1995. There is also Ms Dungey’s fairly confident evidence that Mrs Friend complained of buttock and leg pain for a long period whilst they were at the Strathpine office and that she gave her massage in this area. Ms Marks corroborated this evidence although was quite vague as to dates but again seemed to suggest a period well before the move from Strathpine in December 1995. However, neither witness had been asked to recall these events until quite recently and were no doubt desirous of assisting Mrs Friend as best they could.
Mr Friend, who as well as Mrs Friend, has had to bear the burden of his wife’s disability, was adamant that the low back and sciatic symptoms had been present from the time of the accident. But he also suggested that her limp was apparent early which was not supported by other evidence. It may be that his wife seems always to have had these problems. On the other hand it might be expected that he would recall if a year to sixteen months had elapsed between the accident and the onset of the low back/sciatic symptoms.
All of these “lay” witnesses might have been mistaken as to when these particular symptoms manifested themselves in complaints from Mrs Friend. Mrs Friend might have persuaded herself and them that they commenced much earlier than the doctors have recorded. Mrs Friend is vehement and articulate and if she were making the fuss she now says she made to the doctors or, indeed, anything like it, I find it difficult to accept that it would not have been mentioned somewhere by someone. An explanation for which there is some attraction is that Mrs Friend has now lost sight of the intensity of the neck and shoulder pain which followed the accident and which overshadowed the low back/sciatic pain and that any complaints which she might have made to the doctors were, in fact, very muted. But even that explanation fails to recognise that the lay witnesses attest that the complaints were far from muted. I accept that Ms Dungey correctly recalled the episode of leg disability at her home in early 1995. But that is too distant in time from the accident on the medical evidence to attribute the symptoms to an injury sustained in the accident. No other cause apart from an inherent degenerative condition is apparent to explain the symptoms. There was some reference to a “slip” but it was not developed in the evidence.
I have concluded, not without some reluctance, that Mrs Friend has not discharged the onus which she bears to the requisite standard that the motor vehicle accident caused an injury to her low back and subsequent sciatic symptoms.
The assessment
There is no great disagreement between the parties about the quantum of damages which Mrs Friend ought to be awarded either for all of her injuries or for her neck and shoulder alone. I will make the assessment for the neck and shoulder injuries and also for those injuries together with the lower back injury should I have erred in my conclusion as to causation.
The video
| [49] | Before considering the quantum of damages something should be said about a video which was admitted into evidence (exhibit 33). |
Mr and Mrs Friend had their house at Narangba on the market for sale for about two years before it sold this year, as Mrs Friend put it, “at a loss”. Her husband was unable to maintain the extensive grounds and the upkeep and cleaning of the house. Previously Mrs Friend had managed the house and made a significant contribution to the garden. On 27 February 2000 an agent of WorkCover accompanied by a woman with a baby (who may genuinely have been his wife, as it appeared) posing as a family interested in inspecting the house with a view to purchase gained entry to Mr and Mrs Friend’s home with a real estate agent (who appeared not to be aware of the deception). The man had a concealed video camera (with audio) in a bag. This was revealed when he filmed himself reflected in a bedroom wardrobe’s full-length mirror.
Mrs Friend and her husband and members of Mrs Friend’s family were at home. The man walked through the house with the camera running focusing as much as possible on Mrs Friend. The video demonstrated that Mrs Friend has problems with her left leg and is restricted in turning her head. She is heard explaining how ill she had been the night before confirming her evidence that her reliance on painkillers often resulted in nausea. Mrs Friend was not disconcerted by the showing of the video except to the limited extent that she was somewhat embarrassed at her effusiveness to the would-be purchasers
“I just thought they were going to buy my house because they were there for so long and I do recognise those people and I recognise my sister and her boyfriend.
And yourself?-- Yes, making a total yob of myself. Not very good on camera, am I?”
There was no objection to the tender of the video on the ground that the entrance to Mr and Mrs Friend’s home had been obtained by deceit. In the event it has been of no benefit to the defence case. The defendant had obtained an ex parte order from the court that it not be disclosed to the other side, no doubt on the basis that to do so would remove the necessary element of surprise if fraud were involved. Any costs associated with obtaining and producing the video ought not be borne by the plaintiff.
General damages
Mrs Friend’s busy and apparently fulfilled life has been significantly impaired as a consequence of her painful symptoms. Her plans for a family are now most uncertain because of her back problems. She has undergone three serious operations on her spine as well as invasive and painful procedures such as MRI, pain relief injections and other invasive procedures. It is the case that the consequences of the cervical whiplash are much less than the lower spine damage. This was recognised by many of the doctors in assessing the neck injury as constituting a lesser permanent partial disability of the whole person than the lower back. Nonetheless the cervical injury should not be set at little. Mrs Friend was severely disabled by her neck and shoulder pain for many months. She engaged in daily physiotherapy for some weeks. She has experienced and will continue to experience severe headaches on a regular basis. The condition was and is prone to flare up. Whether the pain was exacerbated by a fracture is a matter of controversy and there were no submissions directed to the resolution of this matter. I note, however, that the preponderance of medical opinion favours the existence of a small fracture which did not pre-date the accident. I propose to discount Dr Toft’s recent conclusion that the accident operated only in some minor way on a pre-existing cervical degenerative condition in view of his inability to explain his change of opinion which I have discussed above. There is otherwise reasonable unanimity amongst the doctors and Ms Bailey as to the nature and severity of her symptoms. It seems that Mrs Friend falls into that relatively small percentage of persons mentioned by Dr Fraser who have sustained serious cervical whiplash injury who simply do not recover. There seems little doubt that some degenerative change was present prior to the accident but it may have remained asymptomatic for most if not all of her working life. It is notoriously difficult for medical specialists to make any assessment of likelihood in that situation, particularly when the person was only 25 at the time of injury.
Pain in her neck and shoulder meant that Mrs Friend’s capacity to work at her part time jobs as a bar assistant or waitress was severely curtailed until she needed to stop altogether. She was unable to engage in heavy carrying (plates and glasses) necessary to those jobs. Because of her privileged position with the organisations with which she did this work she was able to roster herself for lighter duties but even then she had to leave early and eventually ceased altogether in January 1995. This will be reflected in her economic loss.
The specialists assigned a percentage permanent disability to each of Mrs Friend’s areas of painful symptoms. It is convenient to set out their opinions in a table. The percentages are expressed as relating to the whole person.
Doctor Neck Back
Dr T Coyne 4 % 15% Dr P McCombe 5% 12.5% Dr D Todman 10% 15% Dr AD White 10% 15% (increasing to 20 to 25%)
Dr F Tomlinson 10% 30% Dr J Fraser 1½ to 2% 12%
Dr G Ohlrich 5%
possibly rising to 10% Nil
| [56] | I would allow an amount of $25,000 for past and future pain and suffering and loss of the amenities of life relating to the neck and shoulder injury. |
In addition to the pain and suffering and other losses which have been mentioned Mrs Friend has considerable surgical scarring associated with her back injury which is unable to be revised. Its main effect is to limit her ability to wear revealing clothing.
Although Mrs Friend now obtains significant pain relief from the spinal stimulator she will need to have something in the vicinity of six further replacement procedures into the future should she persevere with it. There is the prospect of further deterioration.
I accept Mr Grant-Taylor’s submission that an amount of $65,000 to reflect both the neck and low back symptoms, scarring and associated loss of amenities is appropriate. This represents $40,000 compensation in respect of the back disability. Mr Ambrose had proposed $50,000 for the total disability and $20,000 for the neck injury alone.
Interest
| [60] | Mrs Friend obtained a permanent partial disability lump sum settlement from WorkCover of $25,813.20 (exhibit 32). |
The preponderance of pain associated with the neck injury alone was much more intense in the first few years of the injury. I would allocate one-half of the amount awarded for general damages attributable to the neck injury to the past, which is $12,500. The lump sum received from WorkCover has not been divided between the two injuries on the material before me. I propose to attribute approximately one-third of the amount to the cervical spine injury as a guide for awarding interest, that is, $8,604. I propose to base the calculations on a period of 6½ years since the accident. I would allow interest at 2 per cent per annum from the date of injury for 6½ years which I would round off at $506.48.
Although Mrs Friend has suffered considerably from her back and sciatic pain in the past there is the prospect of further degeneration and further procedures. I would allocate one-third of her damages for the purpose of interest to the past. That sum is $21,667. The amount of the lump sum which I have attributed to the lumbar spine disability is $17,209.20. The amount on which interest is to be calculated is $4,457.80. At 2 per cent per annum for 6½ years it amounts to $579.51.
Special damages
Special damages are not disputed. The amount attributable to the neck injury is $3,122.45 which is allowed. The amount attributable to the neck and the back is $61,712.01. Interest at 5 per cent per annum on $1,894 attributable to the neck injury is $615.55 which is allowed. Interest at 5 per cent per annum on the total of $9,136.84 for 6½ years amounts to $2,969.47.
Past economic loss
Mrs Friend makes two claims under this heading; the first relates to her loss of income from an inability to continue in employment as a waitress at the Sundowner Hotel Motel; the second concerns periods of absence from her work as a paralegal since the date of the accident, those absences being virtually entirely related to her neck and back injuries. I accept Mrs Friend’s evidence that she would have continued to work at the same level as she had before the accident until she and her husband commenced their family which she suggested might have occurred in her late 20s. She did suggest that she would have endeavoured to work at the same level even with a child. This, of course, supposes that a child or children would have been born to the couple. Exhibits 23 and 24 set out Mrs Friend’s pre and post-accident earnings and income schedules.
For the eight month period to 8 June 1994 Mrs Friend earned an average weekly amount from the Sundowner Hotel Motel of $67.50 net. In the period from 1 July 1994 and her ceasing to work at the Sundowner on 29 January 1995 she earned an average weekly sum of $69.90 net. Both Mr Grant-Taylor and Mr Ambrose have calculated her average weekly remuneration from this source or similar at $75 net per week. I accept Mr Ambrose’s submission that the loss attributable to the neck alone is approximately 1½ years and that thereafter that loss has been subsumed into her low back problems. I would allow the amount of $5,000 for past economic loss attributable to the neck. Since this loss occurred approximately 4 ½ years ago the appropriate rate of interest is 10% which amounts to $2,554.80.
Mr Grant-Taylor has proceeded on the basis of a loss of $75 net from 30 January 1995 to the date of judgment. A convenient round figure for that period is $23,000 which discounted by 15 per cent for contingencies, for example her inability to continue to work at that level because of having children or for other usual contingencies gives a total loss of $19,550 from the Sundowner employment. Interest at 5 per cent on the sum of $19,550 for 306 weeks amounts to approximately $5,757.
Mrs Friend obtained weekly benefits from WorkCover for periods which she had away from her employment as a paralegal consequent upon her injuries in the sum of $24,496.92 less tax of $1,368.40 giving a net loss of $23,128.52. No additional amount is sought for her past loss of wages from this source of employment. That amount will attract no interest.
The loss of wages for which Mrs Friend received payments from WorkCover are not allocated specifically to the neck or back disability. It is necessary to make some division. I would allocate one-third to the loss attributable to her neck injury which is $7,710.
Loss of past superannuation contributions
Mrs Friend is entitled to the loss of past contributions to her superannuation which would otherwise have been made by her employers but for her absences from work. The agreed rate is 6 per cent. The amount is $762.60 for this loss associated with the neck injury. Interest at 10% is allowed in the sum of $389.65.
Applying 6 per cent to the total loss of income of $42,550 gives a figure of $2,553.
Interest at 5 per cent on that amount for 306 weeks (from January 1995) is $752.
Loss of future earning capacity
I accept Mr Ambrose’s submission that if only the neck injury is compensable this should be approached on a global basis. From time to time Mrs Friend is likely to need time off work for reasons associated with her cervical spine and shoulder symptoms. The past suggests that she has a tendency to flare-ups in this part of her body. Mr Ambrose has proposed a global sum of $35,000 as compensation for the prospect of this loss. I accept his submission that this is an appropriate amount.
It is clear that Mrs Friend has endeavoured against the background of considerable pain and disablement to maintain herself in full time employment. It has meant that from time to time she has been required to take sick days, holidays and days without pay in order to allow her to rest when the pain became too great. It is clear from her evidence that she can only continue to work full time by resting when she is not at work or by doing very little. I accept the analysis by Ms L Stephenson, an occupational therapist, that in due course she will be unlikely to be able to continue working full time and is more suited to part time employment. Ms Stephenson suggests that a three day working week would allow adequate rest time.
Mr Grant-Taylor has approached this head of damage by assuming that Mrs Friend will endeavour to continue in her work full time as a paralegal until about her 34th birthday in just over two years and will accordingly suffer no loss for which she would seek compensation notwithstanding that she has lost wages in the past because of her need to take days off to rest. Her present average weekly wage is $593 net. Mr Ambrose makes the calculation from the present on the basis that Mrs Friend would almost immediately adopt a three day working week. He submits that that sum should be discounted by 30 per cent for the likelihood she will not reduce her hours immediately or it may not happen at all and for the usual contingencies. In that way he arrives at a figure of $150,000.
Mr Grant-Taylor’s approach is to assume that Mrs Friend will reduce her working week from five to three days over the 11 year period from January 2003, her 34th birthday, and January 2014, her 45th birthday. During that period she will suffer a reduction of 40 per cent in her take-home pay, that is, a loss of income of $237 net per week. Using the 5 per cent discount tables but deferred for two years that amounts to $95,487.
Mr Grant-Taylor further adopts Ms Stephenson’s opinion that Mrs Friend is likely to need to consider early retirement because of her pain perhaps by the age of 45 years. He submits that Mrs Friend will retire from remunerative employment in January 2034 leaving a period of 20 years between 2014 and 2034 during which she would have worked had she not been injured. Using the 5 per cent tables that is $209,566 giving a total loss of $305,053.
Mr Grant-Taylor proposes a 25 per cent discount for contingencies. This takes account of the fact that Mrs Friend may manage to work for a longer period full time and/or not cease work at the age of 45. His figures also presume that she will not cease employment full time for another two or so years. That is a reasonable approach and gives an amount of $228,790 as representing her loss of future earning capacity as a paralegal.
Mr Grant-Taylor submits that Mrs Friend should be allowed an amount for the loss of her ability to return to her part time work as a waitress and bar attendant. I accept that it is likely that she would have continued to work in this field until she had children. But I also take into account her own plan to taper off her work after she had reached about the age of 40. At the time when she sustained her injuries she had the house in Scarborough where she and her husband now live as well as the family home at Narangba. There is a real likelihood that she may well have brought to an end the part time work and to have devoted herself to her other interests of breeding and showing dogs. The amount claimed is $15,740 by reference to a continuing rate of loss of $80 per week for the next five years. I would allow $10,000 for this eventuality.
| [79] | The total amount of future loss of earning capacity is $238,790 for both neck and low back injury. |
Future employer superannuation contribution
There will be a loss of contributions to the superannuation which Mrs Friend would otherwise have received from her employers in the future as a consequence of her employment losses discussed above. Mr Grant-Taylor proposes a rate of 7.5 per cent and Mr Ambrose one of 7 per cent. The greater rate reflects an expectation of growth in interest rates under the legislation which I accept.
There is a loss of $17,909 on the total amount.
If only the neck injury is assessed the loss is $2,625 which is allowed.
Past care
Mrs Friend claims ten hours per week of care, assistance and services since the date of her accident. This is based upon personal grooming assistance, house cleaning, cooking and gardening. There were clearly periods of time when more than this was required and it was given by her husband and, it would seem, Mrs Friend’s mother. At other times when the painful symptoms were in remission this would no doubt have been less. There were also other occasions when she was in hospital when the required services would have been reduced although the house and garden still had to be looked after. Mr Ambrose submits that the evidence of the video suggests that Mrs Friend’s claim for this level of assistance is exaggerated. I accept Mrs Friend’s explanation that by Sunday morning she had had a whole day of rest on Saturday and was able to be up and about in her home. She also had visitors in her home. As I have mentioned previously, to me the video demonstrated the disability which she claims.
I accept that from time to time Mrs Friend would be able to take a bigger part in the preparation of meals. Indeed she herself said that on occasions when her husband is organising the week’s meals at the weekends she assists with, for example, cutting up the vegetables and so on. The claim of 10 hours of services per week is based upon Ms Stephenson’s assessment of three hours house cleaning, three hours cooking and four hours gardening needs per week. This is reasonably reflective of the plaintiff’s evidence of her contribution to the household activities which she carried out at Narangba prior to being injured.
After the move to the small house and garden at Scarborough the domestic assistance so far as gardening is concerned has been reduced to almost zero. Nonetheless the plaintiff still needs assistance, the house needs cleaning and the cooking done.
Mr Ambrose submits that the claim for assistance should be reduced by 50 per cent overall and that 20 per cent of the care needed might properly be attributed to the neck alone. I accept Ms Stephenson’s analysis of Mrs Friend’s need for assistance.
The calculations have been made on the rates charged for a personal care attendant level one in accordance with the Domicare Queensland letter of 11 November 2000 (exhibit 36). Administration costs are not included. Mr Grant-Taylor has set out the calculations at page 13 of his submissions which amount to $38,000. Interest on past care is allowed at 5 per cent per annum, Grincelis v House [2000] HCA 42 decision of 3 August 2000. The period is for 6½ years which gives an amount of $12,350 for interest on past assistance for both the cervical spine injury and the back disability.
I will attribute 25 per cent of that amount to Mrs Friend’s neck and shoulder injuries. That gives a sum of $9,500 for past care. Interest at 5 per cent for 6½ years is $3,087.50. Both sums are allowed.
Future care
[89] If Mrs Friend reduces her working hours before ceasing employment as Mrs Stephenson thought might happen she will be in a better position to undertake some of the tasks which she has been unable to do. It seems unlikely that she would be able to assist with the heavy gardening or indeed any bending, stretching or carrying. She will also be disabled from carrying out heavy cleaning in the house. However she will be able to assist, it might be expected, in lighter domestic duties such as the preparation and cooking of meals and general tidying up. The care which she needs will be provided gratuitously by her husband, other family and friends, so that a 3 per cent discount is to be applied, Mott v Fire & All Risks Insurance Co Ltd [2000] 2 Qd R 34.
Mrs Friend has claimed future care on the basis of a continuing need for services for seven hours a week at $16.14 per hour until the age of 77 years, that is, for 45 years. That amount, discounted on the 3 per cent tables, is $145,000.
Mr Ambrose’s submissions in respect of future care provide for one hour per week for 40 years for the neck injuries discounted for contingencies by 15 per cent to $17,000. He submits that the neck and back claim combined will require only three hours per week for 40 years, which, after contingencies, would amount to $51,200.
Mrs Friend’s cervical disabilities prevent her from carrying out heavy tasks involving her arms and neck. It is reasonable to allow two hours per week assistance which at $16.14 an hour for 45 years discounted by 3 per cent gives a present value of $41,915.58. That amount should be discounted for the usual contingencies by 15 per cent giving a figure of $35,628.24 which I will round up to $35,630.
Mr Ambrose’s submissions in respect of Mrs Friend’s total disability insufficiently take account of her likely declining ability to engage in domestic and other tasks. Five hours per week assistance would be more appropriate. This takes account of Mrs and Mrs Friend’s proposal to build on their land at Brookfield which will involve more work around the garden than at present. Applying the 3 per cent tables amounts to $104,789. Discounted by 15 per cent for contingencies gives a figure of $89,070.61 which is rounded off to $89,070.
Future equipment needs
Doctor O’Callaghan has described the need for and the replacement costs of the spinal stimulator which was implanted in Mrs Friend at the beginning of this year. Mr Ambrose accepts his evidence as to the need to replace that equipment. The amount of $18,762 claimed is not challenged.
Future medical and pharmaceutical expenses
Mr Ambrose does not challenge the assessment of $5,000 for future needs for medical visits, pain relief medication and travelling associated therewith for the future for both neck and back symptoms.
| [96] | He submits that an allowance of $1,000 for those needs in respect of the neck is appropriate. I would accept that submission. |
Fox v Wood component
| [97] | Counsel indicated that the Fox v Wood amount is $6,122.67. I attribute one-third to the neck which is $2,041. |
In summary, the total damages under the various heads divided between the neck injury and the composite neck and low back injury are as follows:
Neck Back
Description and Neck
$ $
Pain and Suffering and loss of amenities 25,000.00 65,000.00 Interest at 2% per annum for 6½ years on 1/2 506.48 579.51 and 1/3 respectively Special damages 3,122.45 61,712.01 Interest at 5% per annum for 6½ years on 615.55 2,969.47 $1,894 (neck); on $9,136.84 (both) Past loss of wages from Sundowner 5,000.00 19,550.00 Interest 2,554.80 5,757.00 Past loss of wages as paralegal 7,710.00 23,128.52 Past loss of employers superannuation 762.60 2,553.00 contribution at 6% of lost income Interest at 5% 389.65 752.00 Loss of future earning capacity 35,000.00 238,790.00 Loss of future employer superannuation 2,625.00 17,909.00 contributions Past care 9,500.00 38,000.00 Interest at 5% per annum for 6½ years 3,807.50 12,350.00 Future care 35,630.00 89,070.00 Future equipment Nil 18,762.00 Future medication etc 1,000.00 5,000.00 Fox v Wood 2,040.89 6,122.67
TOTAL: $135,264.92 $608,005.18
| [99] | There will be judgment for the plaintiff against the defendant in the sum of $135,264.92. |
I will hear submissions as to costs.