Garlick, Cameron Cary v Scrodilis, Nick

[1998] TASSC 170

170/1998

PARTIES:  GARLICK, Cameron Gary
  v
  SCORDILIS, Nick

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  641/1994
DELIVERED:  24 December 1998
HEARING DATE/S:  10, 11, 12, 13, 16, 17 November 1998
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Damages - Particular awards of damages - Tasmania - Fractures of rib cage, sternum and two thoracic vertebrae in a 19 year old man already severely disabled by osteoporosis - Substantial recovery from initial injuries but further disabled by progression of illness - Some cosmetic aggravation of chest deformity - General damages $25,000.

Aust Dig Damages [61]

REPRESENTATION:

Counsel:
             Plaintiff:  D J Gunson and E N Nylander
             Defendant:  M D Docking
Solicitors:
             Plaintiff:  Gunson Pickard & Hann
             Defendant:  M D Docking

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  170/1998
Number of pages:  8

Serial No 170/1998
File No 641/1994

CAMERON GARY GARLICK v NICK SCORDILIS

REASONS FOR JUDGMENT  COX CJ

24 December 1998

This is an assessment of damages for injuries received by the plaintiff in a motor vehicle accident which occurred at Granton on the morning of 6 November 1993.  The plaintiff, then aged 19, was a front seat passenger when the vehicle, driven by the defendant, left the road due to the driver falling asleep at the wheel.  The plaintiff was himself asleep at the time and has no recall of the accident.  He was treated at the Royal Hobart Hospital and x-rayed, but was not admitted as an inpatient.  No fractures were discernible on the x-rays.  On 8 November, the plaintiff saw his general practitioner, Dr Ponsonby, who gave evidence concerning his notes of this attendance as follows:

"What it says is, '8 November '93, Monday', I've just written here 'Flipped car on Saturday morning, 6th of the 11th '93, early Saturday morning at about 0515 hours on the way up to New Norfolk.  His mate fell asleep at the wheel, that led to the crash.  His mate was breathalysed.  The reading apparently was 0.00.  The car, which was a 1980 Cortina, was written off.  Problems:  Anterior chest has sort of pigeoned out a little bit', and we recorded 'that it was tender over that area'.  In the notes it's recorded that, 'Past history:  He'd had a prior deformity of his chest but it had increased since the accident.  Cameron also complained of a sore neck and back'.  And we've written down here, 'That he attended casualty after the accident, re this, and x-rays were taken'.  And I've got here, 'We need to obtain the x-ray results in order to see which way to proceed'.  And I wrote a certificate, a medical certificate, for 2 days and then he came back the next day and we had the x-ray results at that stage.
…
The x-ray results at the time the chest was x-rayed it was regarded as normal.  The neck was x-rayed ¾ it was regarded as 'no change' from previous traumas that Cameron had ¾ it was regarded that they weren't different.  The sternum where Cameron was sore, it was reported that no injury was seen and the dorsal spine which is the spine at the back of the chest ¾ there was a query on the x-ray at about T ¾ the second to the fourth thoracic vertebrae, that there was a possibility of a minimal crush fracture there but it wasn't known if that was old or new.  To try and ascertain that in my notes, we examined Cameron over that area and it is recorded here that it wasn't in fact tender at the time which led me to believe that it would probably be an old fracture."

Later that month, the plaintiff was seen by Dr Stewart Graham, a rheumatologist who had been treating him for the distressing condition of osteoporosis from which he was already suffering.  I shall return to his pre-accident condition in due course.  Doctor Graham arranged for a bone scan to be performed on 18 November 1993 and this revealed fresh fractures of the first six ribs on the right side of the plaintiff's chest, the first three ribs on the left side, a fracture dislocation of the manubrio-sternal joint and, in addition, there were fractures of the third and fifth thoracic vertebrae and possibly of the twelfth thoracic vertebrae.  Doctor Graham prescribed no special treatment or medication for the plaintiff, whom he recorded as complaining "of chest pain in all that he had broken, that is to say thoracic spinal, anterior chest and lateral chest".

For some three years prior to the accident, the plaintiff had been a casual employee at the Myer store in Hobart.  This was not a full time job.  He had originally been engaged to work in the Christmas season of 1990 as a shop assistant, but thereafter was brought in to work at other busy times of the year and as relief when permanent staff were absent on leave.  At times he worked a forty hour week, but at other times his hours of employment were considerably less.  In the last twelve months before the accident, the average number of hours he worked per week was in the order of fifteen to eighteen.  The pain occasioned by the injuries suffered in the accident prevented his return to work for many months and he has never returned to work at Myer.  After about a year, he went to work with his father, who ran a fire protection agency.  He was at this stage still receiving a disability allowance from the statutory insurer which funded the return to work programme.  He did clerical and graphic design work, but was only able to work about five hours per day because of pain and fatigue.  In March 1995, a rehabilitation provider, Mr Lowe, who was engaged by the insurer, arranged for him to work at the Tasmanian University Union on a work trial basis, utilising his graphic design skills, but after about a fortnight he was hospitalised by an asthma attack and he did not return to the University job.  After that he returned to his father, who re-employed him, but not long thereafter sold the business and the job was no longer available to him.  He then returned to the Clarence Campus of TAFE where he did an eighteen week course in graphic design, learning a broad range of the printing techniques, design techniques, the computer and programmes that were used in the industry.  In November 1996, he started his own business as a graphic designer, working out of premises in Moonah and purchasing a Macintosh computer, a scanner, monitor and printer, as well as necessary office furniture.  It has not been a profitable enterprise to date and needs more capital expenditure.  He cannot sit in one position for more than an hour without experiencing back pain and then needs to perambulate for ten to fifteen minutes.  He presently averages five to six hours work per day.  There is no prospect of his condition improving so as to increase his capacity to engage in remunerative employment.

The plaintiff has the misfortune to have suffered from acute asthma and eczema virtually since his birth.  He is steroid dependent and this has not only retarded his physical growth and interfered with his schooling, but has resulted in severe osteoporosis.  He is only 150 centimetres in height and weighs about 36 kilogram.  In his examination-in-chief he said that he had ended up in hospital with asthma eight or nine times a year in his early life, but since becoming an adult, it was probably once or twice every couple of years on average.  With the development of osteoporosis he had suffered many fractures as the result of minimal trauma or even spontaneously.  He had fractured his coccyx in October 1989 in a motor cycle accident and in 1992 sustained fractures of C3, C4 and C6 on one occasion, which eventuated from little or no trauma, and on a second occasion a spontaneous crush fracture of C7.  By the time of the accident in November 1993, his bone density was 60 per cent of normal.  A bone densitometry carried out on 10 December 1993 "showed very severe osteoporosis with a bone density varying from 3.3 to 5 standard deviations below the age/sex match, ie extremely thin or porotic bones".  In January 1996, he was involved in another road accident when he fell off a very small motor cycle he was test riding for a young relative.  He was taken to hospital with a fracture of the wrist and with pain in the back, head and arms.  An MRI scan taken later in 1996 showed a crush fracture of the seventh thoracic vertebrae which had occurred if not in the accident of January 1996, then certainly subsequently to that of November 1993.  A further bone scan conducted in May 1998 shows a new fracture at the eleventh thoracic vertebrae.  He was hospitalised for osteoporosis complications or for acute asthma/eczema between 1987 and the end of 1993 no less than seventeen times: six times in 1987, once in 1988, once in 1989, once in 1990, twice in 1991, five times in 1992 and once in 1993.  In 1995 he was hospitalised as the result of asthma attacks for about three or four days on each of five occasions and again in late 1997 for three days.

The plaintiff described his pain at the time of the car accident as severe and rated it "ten out of ten".  He has claimed for the cost of analgesics for the six months following the accident and his evidence was that since September 1998, he has resumed taking Panadeine Forte.  Doctor Ponsonby did not observe any tenderness in the plaintiff's upper thoracic spine when he saw him two days after the accident.  In the following twelve months, Dr Ponsonby saw the plaintiff many times and gave details of the nature of these consultations, but it is true to say, as Mr Docking for the defendant observed, that there were very few attendances which related to the question of back pain over that period of a year, nor were any analgesics prescribed by Dr Ponsonby.  On the other hand, however, the plaintiff has, throughout his life, displayed admirable stoicism about his medical condition.  The drug charts in the hospital records, save on the occasion of the accident in January 1996, do not reveal that analgesics were provided to the plaintiff on any of his admissions since the accident.

I find that the pain and discomfort associated with the plaintiff's sternum and multiple rib fractures subsided after a few months, as did the pain in his cervical spine.  The plaintiff had a pre-existing congenital deformity of the chest known as "pigeon chest".  This was never, in Dr Ponsonby's view, an issue which warranted special attention or which posed physical problems.  It was purely cosmetic.  As a result of the accident it has become more prominent, so much so that the plaintiff no longer wears a tie as it would hang in such a way as to draw attention to the deformity.  The condition which, in Dr Ponsonby's view was a minor case prior to the accident, has now assumed moderate severity in cosmetic terms, but still does not affect the physical function of the chest or respiratory system.  This adverse cosmetic effect must not be dismissed as merely an aggravation of an existing one.  The plaintiff's sensitivity about the original condition has no doubt been magnified in greater proportion than the present disfigurement bears to the original and he should be compensated for it accordingly.

The plaintiff complains of pain around the middle of the back tending to radiate up and down. He said that he had not suffered from back pain immediately prior to the accident, but that it has persisted since that time and now requires medication in the form of Panadeine Forte between twice and eight times each day.  Just before he had first begun working for his father, he had been extremely depressed; but although work proved to be a distraction from his depression, he said his back pain became worse with activity.  He is able to work about five hours per day, but about once a month does not feel up to going to work at all because of his pain.  He attempted to do some sub-contracting work for a Mr Ian Rumney in June 1998 which involved full time work for about a month, but he found it too arduous and had to give it up.  He has been told not to lift weights of more than 5 kilograms.  He says his pain is confined to his back, but that he does get pins and needles in his arms if he raises them in such an activity as washing up or hanging clothes out on the line.  He is engaged to be married and is able to do some domestic jobs, including mowing the small lawn at the flat he occupies with his fiancee.  Prior to the accident, he used to do some mechanical work on motor cars as a hobby, but such activities as stripping down an engine cause pain.  Driving for periods longer than an hour exacerbates his back pain and he is a restless sleeper, generally obtaining only about four hours per night of solid sleep.

The plaintiff was seen on one occasion in April 1998 by Dr Tim Stewart, a specialist occupational physician.  He complained to him of on-going back pain and of heart burn on a regular basis.  The plaintiff does not claim the latter condition resulted from any injuries received in the accident.  It is likely to be a side-effect of the steroids.  Doctor Stewart was impressed by his fortitude and considered that there were clear clinical signs to support the plaintiff's complaints.  Many of his underlying problems pre-dated the accident, but in the doctor's view, the plaintiff has a significant on-going disability in the back as the result of the accident.  In a report dated 30 April 1998, he said:

"Had Mr Garlick not been suffering with the underlying medical condition which unfortunately he has, I believe that he would have long since recovered from the injuries which he sustained and would have proceeded with his career after only a short term disability."

Doctor Stewart was told by the plaintiff of his work at Myer and told also that he had been selected for a cadetship in the toy department.  In his oral evidence, he said he could not determine on clinical examination where the plaintiff's pain was coming from, but asked to indicate the general area, said:

"The general area I felt was in the upper lumbar lower thoracic.  In other words not specifically in the low back region but in the ¾ almost in the mid back area without actually being in the mid back area."

Asked to assume that T7 had been fractured post-accident, the question was put to him whether or not a problem with T7 would fit in with his clinical examination.  Doctor Stewart replied, "I think the problem at T7 would be a little higher in the vertebral column than I would have anticipated."  When asked, "A problem with T3 or T5 likewise?", he replied, "Yes".  Given the plaintiff's underlying problem of osteoporosis, asthma and eczema, Dr Stewart said:

"I think that the underlying medical condition in his situation would be in the region of sixty per cent and that forty per cent would be a contribution from the accident, the pain that he experiences in his back".

He agreed with counsel in re-examination that osteoporosis by itself does not cause pain normally and confirmed that the plaintiff had complained of pain emanating from an area between T10 and T12 rather than T7.  Doctor Stewart was unaware until told in cross-examination that there was evidence of the plaintiff having suffered fractures of T7 and T11 post accident.  It is significant that the pain site he identified between T10 and T12 coincides with the recent fracture at T11.

Doctor Stewart Graham had been treating the plaintiff for osteoporosis since before the accident and counsel for the plaintiff placed considerable reliance upon his opinion.  In a report made some six months after the accident, he said he expected the plaintiff's pain to settle and that there was no reason to suspect that his fractures would not heal, although it would take longer and the quantity or quality of bone would be less than it would be in an adult male.  He did not in that report identify what part of the spine the plaintiff was complaining of as the site of his pain.  Likewise, he was non-specific in a report of October 1995, although he did say that the plaintiff "still has some pins and needles around the mid thoracic spine and down into both arms, however that has not really changed since the time of the accident".  In his third report of July 1997, he referred to the plaintiff suffering discomfort on a day to day basis.  "It is felt from his cervical spine down into his thoracic spine." Doctor Graham found no evidence of any exaggeration of the severity of his symptoms. 

In his oral evidence, Dr Graham conceded the difficulty of attributing pain to particular injuries where a patient has suffered a series of fractures at different times and indicated that the only real measure was the reliability of the patient himself.  He said:

"My understanding of Cameron's pain is that he has a group of aches and pains from his car accident which include what one might call myofacial group of pains from his neck and shoulders, the whiplash type pain that is a common thought in the community [sic], his fracture pains, his pains in his anterior chest, all of which are fracture pains and over time as I understand it he has also had other fractures.  My understanding of his pain is that he has his upper thoracic spinal pain as his remainder or residue if you wish from the time of his accident his other myofacial and anterior chest pains having largely settled down.  He still has other aches and pains as I understand it from other trauma and other fractures.  The pain that I understand Cameron to have when he is sitting uncomfortably or when he is lifting things, moving around and doing things, is of the high thoracic spinal type and is the same qualitatively and in location as that discomfort that he complained of and has complained of since his motor vehicle accident.  That's my understanding.  I have no doubt that he has other aches and pains and I have no doubt that over time he will accumulate more of them."

Thus the principal site of pain in Dr Graham's experience of the plaintiff's complaints appears to be in the upper thoracic spine, compared with Dr Stewart's identification of it as lower thoracic pain in the area of T10 - T12.  Doctor Graham acknowledged that the fracture of T7 was sustained post accident.  In view of the plaintiff's osteoporotic condition and the evidence of other fractures, whether spontaneous or caused by minimal trauma, he opined that the plaintiff's risk of further fracture is "very, very, very high and would be among the highest in the community".  He said that as the plaintiff ages, the risk of fracture will substantially increase.  He described the degree of osteoporosis as "unmitigatingly severe" and said it was highly unlikely the plaintiff would have been able to continue as a sales person in a department store to age 65.

The defendant called two medical experts, Dr Peter Stevenson, a consultant physician who had seen the plaintiff on one occasion in February 1998, and Mr Patrick Browne, an orthopaedic surgeon who saw him at least three times.  Doctor Stevenson's view is expressed thus in his written report of 16 February 1998:

"Mr Garlick obviously is and was unfit for any work requiring any physical effort.  He would be able to perform office or sedentary work, and graphic design would be a good career option for him.  It is the type of work that generally can be performed on an independent contract basis or at home, and has minimal physical requirements.

His asthma is reasonably well controlled when he is on maximal therapy.  The lung function tests do not show gross disease and the problem appears to be essentially the severity of his relapses when he gets below the present level of maintenance corticosteroids.

Overall, I would have to agree with Dr Michael Ponsonby, that the injuries from the motor vehicle accident have settled.  There will probably be a progression of his osteoporosis in the future as the            corticosteroids required for his asthma will cause wasting of his bones to a much greater degree than the anabolic steroid injections will serve to stabilise them.

Undoubtedly, Mr Garlick would have been incapacitated to a degree by the chest wall fractures for a period of time and this could be best judged by those who reviewed him around that time; probably Dr Ponsonby would be in the best position to judge.  However, it would appear to me that Mr Garlick has now recovered from the accident, and probably has long done so.  Since healing of osteoporotic fractures tends to be at something approximating the normal rate, on gross statistical grounds his incapacity would have lasted approximately six months.  When I try to recollect patients who have suffered similar fractures without having had Mr Garlick's underlying medical problems, I can recall that most would have been back at work in approximately three months, but those patients with some type of underlying medical condition which would have affected their general ability to rehabilitate, may have taken six to twelve months to recover."

On examination, Dr Stevenson said the plaintiff indicated an area of discomfort in the lower thoracic region with some radiation up and down.

Mr Browne first saw the plaintiff in May 1994 when he was complaining of pain in the upper dorsal (thoracic) region of the spine.  Mr Browne found him on examination to be tender over this region.  In December 1996, Mr Browne saw him again and was told of the incident in January 1996 when the plaintiff fell off the small motor cycle and was admitted to hospital with a fractured wrist and pain in the back, head and arms.  On examination, Mr Browne found the plaintiff still complaining of some pain in the upper dorsal region of his spine on both flexion and abduction movement.  On examination of his back, he "has a dorsal kyphosis and he is very tender in the mid dorsal region".  Mr Browne's view then was that the plaintiff's unfitness for work at that time "could only in part be ascribed to the effect of the accident in November 1993.  I find the greater part of his unfitness for work is due to his pre-existing conditions".  On the third occasion Mr Browne saw the plaintiff, that is in February 1998, the plaintiff was complaining of constant low dorsal back pain. 

"This sometimes radiates up the dorsal spine towards the neck.  Sometimes he has a burning sensation felt in the mid dorsal spine.  This comes and goes and he notices it particularly if he works with his arm raised up or if he performs activities such as washing up.  Sometimes he has back pain at night.  He told me that sometimes he has chest pains which are felt across the front of his chest and are rather like a knife.  He feels that he has had this pain more frequently recently that he did previously." 

Mr Browne continued:

"It would appear that as a result of the accident of November 1993 he had some fractures of the upper dorsal spine and also evidence of fractures of the chest wall and sternum.

The fractures of the chest wall and sternum resulting from the accident of November of 1993 would now have healed, and apart from some alteration in his already deformed chest wall he is left with no significant sequelae as a result of these fractures.  He has evidence of loss of height of several vertebrae in the upper dorsal spine on the MRI scan of 1996.  In my opinion this loss of height resulted from the accident of November of 1993 and are [sic] in part of the course of his present back symptoms.

At the present time he is having pain in the mid dorsal region and the MRI scan of 1996 shows significant wedging of one vertebrae in the mid dorsal region.  He also had some pain radiating around his chest wall which I would consider comes from the same site.  It would appear that this lesion in his dorsal spine has occurred since the accident of November of 1993, it is possible that it resulted from the accident of January of 1996.  It may also have occurred spontaneously some time in between.  In my opinion this lesion in his dorsal spine is as much the cause of his present back pain as the lesions in the upper dorsal spine.  Certainly he seems to be more tender at this site than in the upper dorsal spine.  I also note that the recent bone scan shows increased uptake at this level still."

In cross-examination, Mr Browne maintained his view, pointing out that when he had first seen the plaintiff, his complaint was of pain in the upper dorsal spine, whereas when he last saw him, the pain was in the lower part of the dorsal spine and the upper lumbar spine.  He said the majority of people who suffer from this osteoporotic condition would stop complaining of that pain in the region of the dorsal spine within six or nine months and that it was unusual that the plaintiff should complain of such pain for so long for such fractures.  Although he was prepared to concede that the plaintiff may have had some residual dorsal pain from the lesions he had in the upper dorsal spine which could be ascribed to the accident of November 1993, he thought it more probable that the lesion of T7 was the cause of his present pain.  Mr Browne also opined that the pain might emanate from the osteoporosis itself.

Both the plaintiff's parents gave evidence about his complaints.  His father had been in Adelaide on business at the time of the accident, but on his return found the plaintiff to be in a lot of pain and restricted in his movements.  Asked what effect he had noticed on his son as a result of the injuries sustained in the accident, he said:

"He definitely suffers a lot more pain.  And I think ¾ from my limited experience ¾ I think it's a different pain now.  He tends to complain about different feelings.  And I think because he is in pain I think he's definitely restricted in his activities quite a bit now."

Asked where he complains of the source of the pain, he said, "Back, neck, generally the back area I suppose".  Eventually the plaintiff started work for his father, but although it appears that this was about a year after the accident, both were very vague as to when it had occurred.  The plaintiff's father said that when he came to work with him, he seemed to need to change position after a short period of time and to move around, and further that he could not keep up with the work allotted to him.  He was asked about how his son behaved at home after working with him and said he thought initially there had been a couple of episodes where the plaintiff was "pretty distressed", complaining of pain in the "upper back I think from memory".  Mr Garlick, Snr spends most of his working life in Adelaide since selling the Hobart business in about July 1995, a date he was only able to identify after an adjournment to enable him to make some enquiries.  He said his son had a different level of pain from that he had before the accident.  When it was put to him that he may have had an increase in symptoms since the second accident in January 1996, he said "I can't even remember what happened to him in 1996.  I think he might have had a broken arm or something.  I can't even remember what he had done in 1996 on the mini bike".  His position was really summed up in this admission:

"Cameron's been sick since six weeks at birth [sic].  You know, he's had a few breaks during his lifetime.  He's been in and out of hospital a number of times and he could probably write a book if he sat down and researched the number of injuries and pain that Cameron has been through and the number of things that he's suffered, but to try and remember why he was suffering them at that ¾ and the reason ¾ you know, and where he was suffering them, I just can't remember."

I can derive little assistance from Mr Garlick, Snr in determining whether or not the plaintiff's present complaints have remained reasonably constant since the accident of November 1993 or may be due to supervening events.  I think his son's complaints and injuries over the years have understandably tended to merge together in his consciousness.

Mrs Garlick said that her son complained of pain in his lower back prior to that accident, but after it he complained of a different sort of pain there and that he has continued to complain of that pain.  She spoke of difficulties she had observed in his getting mobile, cleaning up his room, making his bed, driving for long distances and sitting in the one position.  She said he had never got back to the way he was before the 1993 accident and had never seemed to be free of constant pain.  Although she confirms that the plaintiff has continued to suffer back pain which, while present before the 1993 accident, was acerbated thereby.  I find her evidence of limited assistance in determining whether, having regard to his osteoporotic state and the trauma and fractures he has sustained since that accident, his present condition can be attributed at least substantially to that accident or has been overtaken by later assaults upon his back.  He has undoubtedly continued to suffer pain since that accident, but the site of that pain has changed, according to the evidence of Mr Browne and that it is experienced in the lower rather than the upper thoracic region is corroborated by Dr Stevenson.  Notwithstanding Dr Graham's impression that the plaintiff has continued to experience pain in the upper thoracic region whcn seated for extended periods of time or lifting and moving things, I accept the evidence of Mr Browne that the principal site of his pain is lower than the fractures caused by the car accident and that the pain is probably caused by the wedge fracture at T7.

I am satisfied that the car accident of November 1993 caused considerable pain to the plaintiff for a period of about six months in respect of his chest, and that although he does not appear to have had any specific asthmatic complication in that time, his debilitated respiratory system must have contributed to additional pain.  His description of feeling pain like a knife thrust on breathing is probably not exaggerated.  I am also satisfied that for a period of twelve or more months he suffered a significant pain in the upper thoracic region due to the injuries he had sustained to the upper vertebrae.  All these injuries prevented him from working and caused anxiety and distress throughout that time.  Some time in 1996 he suffered a fracture of the seventh thoracic vertebrae and this added to the residual pain he was still experiencing in the upper thoracic spine.  But this new fracture became the site of the pain he feels now and which is presently limiting his activities.  The car accident remains the sole reason for the exaggeration in his chest deformity which, while not interfering with respiratory function nor causing pain, is nevertheless a source of embarrassment and distress to him.  I am unable to conclude, however, that he has any more than minimal residual discomfort from his injuries sustained in 1993 or that they have significantly reduced his capacity for work.

Prior to the accident, he worked as a casual part time employee for Myer.  He was well thought of by his immediate superior, Mr Millington of the toy department; but he was never offered permanent employment, nor did he ever seek it.  As I have already observed, his average hours of work in the year preceding the accident were about 15 - 18 and in the preceding years they were no greater.  He had a pleasant manner and was able to cope with most aspects of his work which not only included serving customers, but assembling such toys as bicycles and toy cars.  There was some talk of his undertaking a cadetship within the organisation.  This could have led to a junior management position and to subsequent promotion; but the reality is that the plaintiff was never sufficiently robust to have undertaken a full time position in a department store.  His education had been primarily oriented towards art and design work and his accident was ultimately the catalyst which led him into this kind of work.  With his disabilities, self-employment as a graphic designer is probably ideal for him and the logical way for him to have progressed, whether or not he had been involved in the car accident.  The cadetship was never more than a remote possibility.  He knew little of the details about it, had never applied for it and would not have been eligible for consideration unless his employer was ready to accept him as a full time, permanent employee.  After three years of very part time work, often disrupted by hospitalisation, and with a degenerative disease which imposed significant physical limitations, I think the prospects of his ever having been selected for training for such a career were remote in the extreme.

In my opinion, the plaintiff suffered injuries which caused considerable distress and pain for a period in the order of eighteen months before settling down to a degree of discomfort which has now largely been overtaken and increased by the progression of osteoporosis which has caused other pain-producing fractures.  The injuries in the car accident no longer represent any significant restriction on his capacity for work, that capacity being limited primarily by his other physical disabilities.  He is entitled to moderate damages for the physical pain and suffering endured in those eighteen months, as well as the anxiety and depression associated with them.  He is also entitled to not insubstantial damages for the cosmetic injuries which have cruelly emphasised his existing deformity, but I am unable to make an award on the basis that his continuing pain and his current work limitations are consequential upon the accident.  Such economic loss as he suffered as the result of it has been compensated by the payment of a disability allowance for a period a little longer than that during which he was disabled by the injuries sustained in the accident. 

For his pain and suffering and loss of the amenities of life resultant upon the defendant's negligence, I award the plaintiff the sum of $25,000.  He is also entitled to reinbursement for the cost of the pain-killing medication he took in the months following the accident.  Although the source of any prescription for Paradeine Forte is not clear, I am not prepared to disbelieve his claim to have expended some $38.40 on procuring such tablets or to have spent $5.37 per month on non-prescription Panadol.  I will allow a further twelve months' purchase of the latter as attributable to the accident.  Pharmaceutical expenses are assessed at $103.

There will be judgment for the plaintiff against the defendant for $25,103.