Groeneveld v Mount Isa Mines Limited

IN THE SUPREME COURT

OF QUEENSLAND

No. 1562 of 1993

[Groeneveld v. Mount Isa Mines Limited]

BETWEEN:

EDWARD GROENEVELD
Plaintiff

AND:

MOUNT ISA MINES LIMITED
(ACN 009 661 447)
Defendant
REASONS FOR JUDGMENT - WHITE J

Judgment delivered 19/06/1996

CATCHWORDS INCOMPLETE paraplegia - 70% loss of function of whole person - future employment prospects - accommodation needs - housekeeping needs.

Counsel:Mr K Copely QC for the plaintiff
Mr SC Williams Qc for the defendant

Solicitors:CA Sciacca and Associates for the plaintiff
Bowdens for the defendant

Hearing Dates: 28, 29 and 30 May 1996

IN THE SUPREME COURT

OF QUEENSLAND

No. 1562 of 1993

[Groeneveld v. Mount Isa Mines Limited]

BETWEEN:

EDWARD GROENEVELD
Plaintiff

AND:

MOUNT ISA MINES LIMITED
(ACN 009 661 447)
Defendant
REASONS FOR JUDGMENT - WHITE J

Judgment delivered 19/06/1996

The plaintiff is a 59 year old separated man who sustained serious personal injury on 9 September 1991 in the course of his employment with the defendant which has resulted in incomplete paraplegia. The plaintiff was employed as a timber man on the day of his injury and had worked for the plaintiff in various capacities for some 27 years. Liability has been admitted and the action proceeds to trial on the issue of quantum only. I mention briefly that at the beginning of the trial Mr S Williams QC for the defendant indicated that he would be seeking to call medical evidence not previously provided to the plaintiff and on an aspect of the plaintiff's health not previously raised in the defence case. I ruled that since that would be in breach of O.39r.29D(3) and that special reasons pursuant to O.39r.29D(4) had not been shown leave would not be given. Mr Williams then sought an adjournment which I refused for reasons which I need not repeat here and which are set out in the transcript. In the course of the trial those issues were, in fact, canvassed in the cross-examination of Dr Vernon Hill.
The Issues
The major issues in contention are
•when in the future the plaintiff is likely to be reliant upon a wheelchair for mobilisation;
•the level of the plaintiff's needs for domestic assistance, particularly in the future;
•the plaintiff's accommodation requirements;
•whether the plaintiff would have remained in employment as a timber man or similar to age 65 which involves consideration of
•his past history of heavy smoking;
•whether the plaintiff's hypertension is accident related or would have occurred naturally;
•the causation of the plaintiff's diabetes which developed immediately post-accident;
•whether the plaintiff had a pre-existing back condition which would have operated upon his capacity to do heavy work in the future;
•a long-held plan to sail around the world;

•the extent of the plaintiff's future medical treatment including medication which involves consideration of the link between the accident and the plaintiff's hypertension and diabetes;
•the cost of a new motor vehicle once only.

Brief History
           The plaintiff was born in Holland on 12 February 1937 and moved to Indonesia with his parents when he was 9 years old where he attended school until the age of 14. He came to Australia in 1952 and was naturalised in 1954. He could not read English when he came to Australia. He did not return to school but decided to get as varied work experience as he could to make up for his lack of formal education. He worked for about a year as a labourer on a dairy farm in Atherton, a farmhand for six months in Maryborough and had 18 months assisting his father on Green Island. His father was a master mariner from whom he inherited a love of the sea and sailing. The following four years were spent on station properties in labouring and droving jobs. He then spent two years assisting to build windmills and install tanks before being employed at Mount Isa in the mines where he remained for some 18 months. He had a break and returned to work for the defendant until he was injured - some 27 years.
           The plaintiff was married in about 1968, it seems not particularly happily. He married a woman who already had four children and four children were born of the marriage. The relationship ended in 1976 when he left the home at the behest of his wife leaving her with all the joint property. His four daughters were in their late teens and early twenties when his accident occurred. Although he maintained contact with his children two have assisted him considerably since his accident. He told Mr BM Johnston a clinical psychologist that he had not been involved in a relationship since the break-up of his marriage of a serious or permanent kind. He chose to live in a caravan in Mount Isa and saved as much of his wages as he could in order to fulfil a long-held dream of buying a yacht large enough to sail around the world. At the time of his accident he had managed to save some $50,000.
           Prior to sustaining his injury the plaintiff was an enthusiastic outdoors person who spent his recreation time water-skiing, boating, fishing and camping. His daughters attested to his vigorous and outgoing recreational activities. He was also a very keen gardener. He had sustained a serious right eye injury at work prior to his accident but that was corrected by wearing glasses. He had also injured his back on several occasions in work related incidents to which I shall return in due course. He was a moderate user of alcohol and a very heavy smoker of tobacco which he discontinued from the day of his accident. It will be necessary to return to that again.
The Injury and its Consequences
           A timber man works underground, inter alia, building bulkheads and doing other timber and brick work preparing the way for the miners and their machines. It is very heavy work. The plaintiff had been a timber man for some 12 or 13 years prior to the accident. He was 54 years when he was injured. On 9 September 1991 he was about 3,000 to 4,000 feet underground inspecting ground already identified as unsafe when a large rock fell onto his right foot. He immediately felt severe pain. He was pinned against a tractor which, contrary to the plaintiff's instructions, a fellow employee moved. Thereupon the rock rolled onto his stomach and chest. The fellow worker attempted to lever the rock up off the plaintiff but in so doing tore at his bladder, bowel and testicles. The plaintiff was given painkilling injections and taken first to the Mount Isa Hospital and then transferred by air to the Princess Alexandra Hospital. He has fleeting memories of this period.
           The plaintiff was admitted to the spinal injuries unit at the Princess Alexandra Hospital on 10 September 1991. He was noted to have sustained a fracture of the third lumbar vertebra, fractured ribs on the left side from the fifth to the ninth ribs and an anal tear and other lacerations. He was admitted to intensive care and was noted to have high blood sugar which was controlled with insulin. Hypertension was present and was treated by beta blockers. On 17 September he developed left lung problems which required draining. The following day the plaintiff was transferred back to the spinal injuries unit where diagnosis of incomplete paraplegia below the second lumbar segment was made. The plaintiff's condition deteriorated with serious respiratory problems and on 19 September he was returned to intensive care where an intercostal catheter was reinserted. He had thrombosis problems. He was finally returned to the spinal injuries unit on 26 September 1991. Dr Hill, the head of the spinal injuries unit said in evidence that there was some doubt whether the plaintiff would survive.
           The plaintiff was mobilised in a wheelchair on 12 November 1991. He began learning to walk again between two rails in the physiotherapy department, eventually moved to two crutches and then progressed to one crutch. The plaintiff said that he used to practise walking outside on the veranda of the hospital until 11 o'clock at night walking backwards and forwards. This determination to walk again is indicative of the personal courage and determination which the plaintiff has shown to the present time in seeking to overcome his considerable physical deficits.
           Initially his bladder was managed by an in-dwelling catheter but when he became mobile he was taught to self-catheterise. He managed his bowels whilst in hospital with aperients and suppositories. A home visit to one of his daughters at Redcliffe was arranged for about two weeks at Christmas time. He returned to the hospital and was finally discharged on 29 February 1992. The plaintiff described the pain, particularly in his leg, when he was in hospital as "shocking". He required regular pain relieving injections and gradually the pain abated to its present level. He has lost permanently his capacity to function sexually.
           After he was discharged the plaintiff stayed with friends for about four weeks until he felt confident enough to live on his own. He moved into his present accommodation at Mt Tamborine which is a ground floor unit in a two unit complex with a garden. The plaintiff owned a 12 year old Toyota Coaster manual bus prior to his injury which he had always serviced himself. Its configuration made it entirely unsuitable for post-injury use. He gave the Toyota to the friends who had looked after him and purchased a new Ford Falcon station wagon with automatic hand controls.
           When the plaintiff was seen a month after discharge in the spinal unit at the Princess Alexandra Hospital he complained of pain in his back particularly after walking for which he was assisted by a crutch. He told Dr Hill that he had difficulty in driving for more than two hours after which he tended to get very stiff. In December 1992 he contracted a severe urinary tract infection coupled with an infection of the right testicle which necessitated his going to bed for about two weeks. His daughter Leah Groeneveld looked after him until he recovered. As I will mention in more detail later two of the plaintiff's daughters Leah and Kelly have come to stay with him at Mt Tamborine for a few days at a time each fortnight to attend to his needs. After the plaintiff was involved in a failed mediation in September 1995 he was in such a state of depression and unhappiness that he asked Kelly to stay with him which she did for about four months until his mood lifted.
           The plaintiff was examined by Dr Greg Gillett, orthopaedic surgeon, on 6 November 1992. He described both the plaintiff's injuries and their sequelae whilst he was in hospital as life-threatening. Dr Gillett noted that the injury to the plaintiff's lumbar spine had left him with malalignment of his spine and was the source of ongoing symptoms in relation to backache and feelings of clicking in his back and joints. Dr Gillett considered that the plaintiff would have ongoing pain and mechanical type symptoms for the future. He noted that the plaintiff had loss of sensation and weakness in his right leg and pain in the region of his right ankle and right knee. He noted that whilst the knee did not swell it clicked. The plaintiff's left leg was not as bad as the right but there was numbness in the region of his shin and he experienced pain if he walked for any length of time. Dr Gillett noted that the spinal cord injury sustained by the plaintiff had left him with permanent disfunctioning in his bladder, bowel and sexual organs and the function of his right and left lower limbs.
           The plaintiff saw Dr Hill again in March and May 1993 describing continuing back pain which was worse after walking, but which was relieved when he lay down. The clicking in his back and hips and pain in his left knee and leg continued. He had weakness in the muscles around his right ankle and little sensation in the sole of his foot. He managed his bladder by self-catheterisation and his bowels by manual evacuation with a gloved finger. He had had some significant problems with bowel accidents but his management gradually improved. That regime continues to the present. In a report of 10 May 1993 Dr Hill concluded that the plaintiff had regained all the function that he was likely to get back and had been left with a significant and severe disability. He agrees with Dr Greg Gillett that the plaintiff now has a 70% loss of function of the whole person.
           The plaintiff has maintained a fairly rigorous walking exercise program at Mt Tamborine in an attempt to improve his mobility and to keep himself fit. By using his crutches he is able to walk up to three kilometres over a period of six or seven hours on the walking tracks in the rainforest and the golf course although it seems quite clear that it is only sheer determination and willpower which has allowed him to traverse some of the more difficult ground. He said he would sometimes be in tears, experiencing quite severe pain and would be quite laid up the next day.
           The plaintiff saw Dr Hill again in July 1995. By this time he had the benefit of a lumbar corset which helped with his back pain and "keeping it together" as he has a sense of looseness in his back. He complained to Dr Hill of pins and needles in both legs with the right more numb than the left. He thought that there had been some further weakening in his left leg such that he needed to put his hand onto the furniture in order to get from sitting to standing and when getting out of the car he had to hold onto the roof of the car and the top of the door. Dr Hill thought that this was due to the severe pain which he experienced in his knee and ankle. He also thought that the plaintiff's condition was getting worse. The plaintiff mentioned chronic pain in his right groin, in both hips and his back present all the time but eased by bed rest. He slept quite well although needed to attend to his catheter four-hourly.
           The plaintiff said in evidence that he has a dull ache in his back constantly but that it was worse when he tried to lift things or to walk for long periods. He is able to lift a small plastic bucket or half a bucket of water but not more than once without pain. He continues to use the left crutch for assistance in walking. He has a wheelchair for his use when necessary. He is unable to lean forward for any length of time before he feels pain in his back and if he turns his hips he feels distinct pain. Any activities in which he reaches forward with his hands causes pain but if he holds a light weight or does activity against his stomach he does not have much trouble. If he plans a longish walk, the day before he takes about six Panadol in order to reduce his pain level. He experiences a little pain in the left hip but a lot of pain in the groin on his right side. His ambition is to walk without crutches and when he gets up at about 2.00am in the morning to catheterise himself he will walk around and around the kitchen without a crutch trying to perfect his walking for about two hours. He experiences severe pain after sitting for a quite short period. This was clearly seen whilst he was giving his evidence and there was no suggestion that this was in any way an exaggeration. Indeed the plaintiff's fortitude was accepted by the defence. He walks with the assistance of a crutch in an awkward limping gait.
           The plaintiff has achieved some relief by wearing the corset, particularly when he is undertaking activities such as washing-up, ironing or driving and takes it off when he is eating. He needs to wear high soft shoes for support and cannot walk barefooted. If he sits for too long then his right leg and foot go completely numb after about 20 minutes. He is able to walk upstairs with the left foot leading and then brings the right foot up to that tread. If he stands in one position for any period of time his right leg becomes completely numb. He had an unpleasant experience when he was trying to use a new metal lathe which he had purchased. He said that he was interested in what he was doing and stood at the lathe bench for about three-quarters of an hour. When he tried to move from the lathe he could not and only gradually was able to work his knees before he started to get feeling back into his legs. If he gets tired his right leg has given away from under him. This is one of the main reasons why he uses the crutch. He fell whilst in his garden and was unable to get up because it was slippery and had to wait until a neighbour came to give him a hand after he called out. Again when he was sitting in a folding chair in his garage the chair collapsed and he went backwards against a wall and was unable to get out of that position. When he was driving on a dirt road near Canungra his car slipped into a culvert during heavy rain. He was unable to get out of the car to signal for help and spent the night in the car before he received assistance. After that incident he obtained a mobile telephone. After he has walked any distance he gets a sharp needle-like sensation in the sole of his right foot which lasts about half a minute and for which he uses Panadol. It is such that it wakes him from his sleep. My impression was that this was of significance and causes the plaintiff much distress.
           One of the plaintiff's major problems is his poor proprioception in his lower limbs, particularly his right leg, (unaware of the position of his legs in space unless he looks at them) which is due to his spinal cord injury. Dr Hill said that as a consequence he is always at risk of falling over particularly in the dark or in the bathroom and of doing serious damage to his lower limb joints. When the plaintiff gets up in the night to attend to his catheter he uses a torch to shine on his right leg otherwise he would fall over. Because he has no perception of his right leg it is sometimes placed awkwardly and he gets a tearing feeling in the socket, a risk alluded to by Dr Hill. Another unpleasant feature is a tendency to fall forward into the hand basin when he is bending to wash his face. If he closes his eyes he has no balance.
           The plaintiff is very dependent upon his motor vehicle. In a sense he uses it as a wheelchair to travel quite small distances, for example, to get to the shops. He is now able to drive only for about 20 minutes to half an hour and then needs to mobilise. The plaintiff described himself as freezing up in the legs and in the bottom part of his body when sitting in a car either as a driver or passenger. After he has mobilised and walked around or rested on a mattress in the back he is able to drive for another twenty minutes or so. He has a lot of difficulty looking backwards over his shoulder and he relies on the car mirrors. He needs a soft cushion to sit on and has had some pressure sores in the past in the lower back and on the knee where it rubs against the door of the car for which he uses a lambswool rug.
           The plaintiff drains his urine every four hours although in the winter time it is more often and if he does not do so then he will become wet. He evacuates his bowel manually about three times a day and requires a variety of items to assist in these procedures none of which are contested by the defendant. As a consequence of the management of his bowel function he has some bleeding and Dr Hill considers that he will need an operation to remove haemorrhoids in the near future. The plaintiff had a second urinary tract infection in 1993 of some severity. His daughter came to look after him for the several weeks that he was disabled by the infection. He takes antibiotic drugs to control the risk of urinary tract infections as a regular part of his management.

Dr Hill considers that within five years the plaintiff will rely on a wheelchair for mobility both around the house and externally. Dr Gillett thought that this would not occur for about ten years. In evidence he accepted without reservation Dr Hill's extensive experience and deferred to his opinion. Dr Gillett thought that there was no more than a 10% risk that the plaintiff's spine would deteriorate neurologically in the future which would be likely to bring more back pain with activity. Dr Hill based his prognosis on a combination of joint problems, pain, increasing weakness with age and perhaps increasing weight. He thought that if the plaintiff had a serious fall he would be likely to lose his confidence and use a wheelchair. Ultimately, he said, it was a question of how much pain the plaintiff was prepared to put up with because walking undoubtedly caused him pain. Dr Gillett thought that the plaintiff would probably reach a point where it was more comfortable overall not to exert a great deal of energy to try and keep mobile but to accept a wheelchair existence. There had been some suggestion that the plaintiff might require a hip replacement operation, but it seems likely that the plaintiff will become wheelchair-bound before that would be required and the sedentary life thereafter would preclude such interventionist treatment.
The plaintiff does some housekeeping tasks for himself with difficulty, such as sweeping, vacuuming, laundry and can do benchtop cooking. He can do a little gardening with a special long-handled tool which he made but generally supervises his daughters when they visit.
Causation

Hypertension
Dr Hill reported that the plaintiff "developed" hypertension after admission to the Princess Alexandra Hospital. He was treated in hospital, but on discharge it was not continued. In his report dated 4 June 1993 (exhibit 6) Dr Hill said that he did not believe that the plaintiff's hypertensive condition could be directly related to the accident. In oral evidence he commented that pain (stress) can be a temporary cause of increased blood pressure. On further reflection he also thought that an increase in weight could be a significant factor in its onset. He thought that because the plaintiff had been forced to give up exercise when injured there might be a relationship between the accident and his hypertension. Mr Williams demonstrated from MIM records that the plaintiff had been a quite heavy man in the past. In 1968 he weighed 14 stone (height of 5 feet 9 inches/174 centimetres) fluctuating very little until the last recorded visit in 1990 when he was weighed at 94 kilograms. He was 93 kilograms when weighed by Dr Hill in 1993. However two of the doctors who saw the plaintiff more than once have commented in their reports that he had put on weight over the period of time that they had seen him, (Dr Hill, exhibits 4 and 5; Dr Gillett, exhibit 16). This suggests that the plaintiff lost weight in the year prior to his accident or in the early days in hospital.
           Although the plaintiff had unacceptably high blood pressure readings in 1968, thereafter they reduced and from 1981 the readings obtained by the mine's medical centre were no longer any cause for concern. The plaintiff's blood pressure had not been controlled by medication but he said that in the 1970's he had contracted gout and as a consequence he greatly reduced his alcohol intake. This would have accounted for the reduction in blood pressure.
           Dr Bosworth, the plaintiff's general practitioner at Mt Tamborine, considered that the plaintiff had no primary hypertension in his past. He said that if a person did have a blood pressure problem of an inherent nature it tended to get worse through life not better as occurred with the plaintiff. Dr Bosworth thought that the plaintiff's high blood pressure earlier was due to a young man's high alcohol consumption. This was consistent with the plaintiff's evidence. Dr Bosworth had had a number of years' experience as a mines doctor in New South Wales and was familiar with the lifestyle of miners. He considered that the effects of the accident precipitated the plaintiff's hypertension and thought that mere temporal coincidence was an inadequate explanation since the plaintiff had had normal readings prior to the accident and life-threatening readings in hospital following the accident. He suggested that the exact mechanism of hypertension in many people is unknown but that in the plaintiff's case he may have suffered renal shock as a consequence of his injuries. Dr Bosworth noted that although the Princess Alexandra Hospital records showed that the plaintiff's hypertension became progressively a problem during his stay his anti-hypertension medication was not continued when he left and was reintroduced by Dr Bosworth in 1992.
           Although Dr Hill had been asked to advise on the cause of the plaintiff's raised blood pressure he did not have access to the mine's medical records. In further examination in chief the readings were given to him but he was not given as many background facts as Dr Bosworth. Dr Bosworth had been treating the plaintiff since 1992 for this condition. He presented as knowledgeable in this area and was convincing that more likely than not the plaintiff's hypertension was due to the effects of the injuries which he sustained in the accident. I accept his opinion and conclude on the balance of probabilities that the plaintiff's hypertension was caused as a consequence of the injuries received by him.
Diabetes
The plaintiff suffers from non-insulin dependent diabetes. It was first diagnosed in hospital after the accident and was treated with insulin initially. It was then treated by a sugar-free diet and although Dr Bosworth said that it would be better controlled with medication the plaintiff is reluctant to take any more drugs. Dr Hill thought that the onset of diabetes was not related to the effects of the accident. Dr Bosworth thought it a theoretical possibility but did not feel qualified to express an opinion. He ventured that there was a 50% chance that the plaintiff's diabetes was attributable to the accident. On the state of the evidence I do not find that the onus has been discharged and conclude that the plaintiff's diabetes was not caused by the accident.
Reduced Life Expectancy
           Dr Hill concluded that because of the plaintiff's hypertensive condition he was at risk of life-threatening complications even though controlled by drugs and monitored. His cholesterol level is satisfactory. Dr Bosworth his general practitioner considers that he has a number of serious problems. Though the plaintiff has given up smoking since the accident Dr Hill considered that damage has been done. He thought that the plaintiff's life expectancy as a consequence of his hypertension in particular was reduced by some 3-4 years. In making the various calculations as to damages I have proceeded on the basis that the plaintiff has a three year reduction in his statistical life expectancy. According to the actuarial tables a 59 year old male has a present life expectancy of 17.96 years. I have made the calculations on the basis of a further 15 years' life expectancy.
Pain and suffering and loss of the amenities of life
           As a consequence of his accident-related injuries the plaintiff is now assessed as having a 70% loss of function of the person. This includes his loss of bladder, bowel and sexual functions. He has suffered and will continue to suffer significant physical pain. His loss is the greater because he was a man who gained great pleasure from his energetic recreational activities and from pride in his labour-intense work. He had and has few sedentary recreational pleasures. Gardening gave him much enjoyment in the past and he can do little now except supervise his daughters. If he has raised garden beds he may be able to regain some of that pleasure. He has manual skills and likes making things and when he is relieved of his financial concerns and the worry of this litigation he may be able to make more use of his bench and tools.
           He has been far from impecunious since his accident but nonetheless has fretted about his financial security. He has worked all his life and had a large family to support. In the later years of his employment he embarked on a saving program to purchase a boat to sail around the world and had then saved some $50,000. He received $135,000 from the MIM superannuation fund on account of his total and permanent disability for work and $37,000 lump sum from the Worker's Compensation Board. Whilst he has purchased two cars (consecutively), a mobile phone and other items because of his injuries he has not spent his money, for example, on better accommodation or to pay someone to assist him. He has invested his fund in safe investments. Mr Williams has submitted this demonstrates that either the plaintiff has no real need of much assistance in these areas or, if an award is made to cover such things, he will not spend it. I accept the plaintiff's explanation that his concern for his future security prevented that kind of spending. Even though liability was not ultimately in issue the plaintiff is not a sophisticated man and was not confident as to the outcome of the litigation to the extent that he could plan for his future on the basis of a substantial award.
           His hope of sailing the world has gone. He may never have saved enough for his boat but it was a goal that gave focus to his future and clearly gave him much pleasure in the planning. He said that he has never been fishing since his accident because he could not bear the pain of being disabled on the water. The plaintiff suffers bouts of sadness and frustration when he contemplates his plight. Although Mr Johnston considers that he would benefit from counselling I think it is unlikely that he would undergo any such treatment. I thought the plaintiff a very private man although he seemed able to express his unhappy moods in a straightforward way and without undue bitterness. The plaintiff's distress in the witness box when contemplating his future in a wheelchair and increasing dependency upon others was apparent. When he needed help he asked his daughter to stay which she did. Unless something about his personality changes I think that he will manage in the future in his own way with the help of his daughters and friends when his condition overwhelms him. His daughters' devotion to him must be a positive outcome from his accident. He is teaching one of them to drive a car. Mr Copely submitted that $125,000 was the appropriate level of compensation for general damages for pain and suffering and loss of the amenities of life. Mr Williams submitted that an award of $90,000 was more appropriate, emphasising that the plaintiff was not a paraplegic and would always retain some capacity to stand and walk and that he was a man of 54 years not a young man when he was injured. He submitted that a standard award for a young paraplegic was $135,000. As Mr Williams mentioned, the quantum of damages for paraplegic plaintiffs under this head has moved up very little over the years notwithstanding inflationary changes in the value of money. I will award the plaintiff $100,000 under this head of damages which also includes compensation for loss of life expectancy. I accept Mr Copely's submission that one-half of the plaintiff's damages under this head ought to be attributable to the past. He received $37,000 as a lump sum settlement from the Worker's Compensation Board in 1993. That should be taken into account for the purpose of assessing interest because it is compensation in respect of loss similar to that covered by this head of damages, Haines v. Bendall (1991) 172 CLR 60. Accordingly interest at 2% per annum is to be paid on $13,000 for 4¾ years amounting to $1,235.
Past Gratuitous Care
           Mrs Margaret Glen prepared a report costing the plaintiff's past and future care needs. She is a triple certificated registered nurse and for nine years operated a business supplying staff to private homes. She has been a home carer for a quadriplegic sufferer and regularly prepares reports of this kind for litigation purposes. Her experience and expertise to do so was not challenged. However Mr Williams submitted that Mrs Glen postulated something of an ideal regime of care for the plaintiff which was not reflective of his real injury-related needs. Mrs Glen had regard to medical reports, an interview with the plaintiff and his daughter Kelly and telephone calls with them. She made numerous enquiries of carers and even taxi drivers as to amounts charged. The plaintiff confirmed her report as far as it referred to himself and Mr Williams did not challenge the hearsay in it. The rates nominated by Mrs Glen for domestic, etc, assistance do not include agency or administration fees.
           The plaintiff's daughters Kelly and Leah and other family members and friends visited him in hospital. Dr Hill emphasised the value of such visits to the plaintiff particularly during the first month of hospitalisation for his survival and then for his progress. The defence does not dispute this although it challenged the allowance of 10 hours per day whilst the plaintiff was in intensive care on the basis that he was not conscious for the whole of that period and the hospital would not have permitted the family to be at his bedside for all that time in any event. The family attended at the hospital to be on hand when they were needed and it was not put to either of the plaintiff's daughters that their attendance was unnecessary. Dr Hill's evidence suggests that it was reasonable for them to be available and there is no evidence that the family members did not attend upon the plaintiff for those 10 hours.
           The visits continued throughout the plaintiff's stay in hospital although the time of contact reduced. For two weeks during the Christmas period the plaintiff visited with his daughters at Deception Bay. Had the family not been able to look after him he would apparently have remained in hospital as he required total care except for bladder and bowel management which by then he could do for himself. Mrs Glen has costed that period on a live-in housekeeper basis. After the plaintiff returned to the Princess Alexandra Hospital on 2 January family members and friends continued to support him for about two hours a day for five days a week. I allow $3,598.50 for this period.
           After the plaintiff was discharged from hospital he stayed with Mr and Mrs Lemon at Mt Tamborine. They collected him from the hospital and assisted in his rehabilitation including preparation of meals, housekeeping services and teaching him to drive his hand-controlled vehicle. The plaintiff attended physiotherapy at the hospital during this period and was taken by a local taxi-driver who charged him a reduced rate. When the plaintiff moved into his flat at Mt Tamborine on 28 March he was assisted by his landlord and the landlord's wife. They checked on his wellbeing initially and the plaintiff paid them to clean and do laundry and bed-making for nearly three months. Those are needs reasonably associated with the plaintiff's injuries during these early months after he was discharged from hospital. The plaintiff's neighbours, Mr and Mrs Partridge, gave him companionship and drove him around the environs of Mt Tamborine so that he could become confident driving for himself. Mr Williams submitted that mere companionship was not a need that was recompensable. As Mason CJ, Toohey and McHugh JJ explained in Van Gervan v. Fenton (1992) 175 CLR 327 at p. 333 the true basis of a Griffith v. Kerkemeyer claim is the need of the plaintiff for those services provided to him or her. The need for the companionship and orienteering of the kind provided by the neighbours has not been demonstrated on the present state of the law. That item costed by Mrs Glen at $253 is not allowed. For this period the amount of $1,391.15 is allowed.
           On 14 June 1992 the plaintiff drove from Mt Tamborine to Mount Isa to attend to business matters and the relocation of his caravan and Toyota bus. It was a slow journey during which the plaintiff rested on a mattress in his vehicle to relieve his pain. He had three nights' accommodation en route and one week staying at the home of friends in Ayr. The plaintiff recuperated from the trip at the home of a friend in Mount Isa where he finalised other business matters as well as organising the transport of his Toyota and caravan back to Mt Tamborine. The claim has been made for the cost of travel there and back at so much per kilometre together with accommodation which was actually paid for, domestic assistance provided by friends with whom he stayed and the cost of a companion travelling in his own car to pull the Toyota while the plaintiff pulled the caravan. The plaintiff was confronted with an emergency and used his right foot on the controls instead of his hand controls and as a consequence the caravan jackknifed and was destroyed. Mrs Glen has costed this trip at $3,707.55. This does not include the repairs to the plaintiff's vehicle when the caravan was damaged, nor the value of the lost caravan which Mrs Glen has mentioned. Whilst an alternative less expensive way for the plaintiff to settle his affairs in Mount Isa was not proposed by the defence, nonetheless almost $4,000 for the return trip seems more than is reasonable to charge to the defendant. I propose to allow $2,250 for this part of the plaintiff's claim. Apart from the voluntary care given by friends this really is a special damages claim, but there was no objection to it being formulated in this way.
           The plaintiff gave Mr and Mrs Lemon the Toyota bus in return for their care to him. Its value is not the subject of evidence and I propose to make some adjustment for this under another head of damage. A claim has been made for their care which has been allowed.
           The plaintiff's daughter Leah travelled by train to Beenleigh and was collected by her father and driven to Mt Tamborine one weekend a month to assist him with housework and gardening. It was a term of his rent agreement that he would be responsible for the garden but it was not clear if any reduction in rent was given. Whilst Leah was there she did everything for him although he was able as I have mentioned to do some domestic activities for himself albeit with difficulty. Although Leah did all the housework whilst she was there, she particularly did what he was unable to do (or do with great difficulty) including scrubbing the shower recess, cleaning the lower shelves of the refrigerator, doing bulk food shopping, ironing and cleaning windows. She spent a lot of time in the garden under her father's direction. Mrs Glen has allowed five hours each month for domestic work done for the plaintiff and three hours of gardening excluding things which the plaintiff could do for himself. That seems to me a more than fair and reasonable assessment.
           The plaintiff's daughter noted that he was coping less well with the housework during 1993 and assistance was increased to one weekend every two weeks. In May 1993 the plaintiff suffered a severe urinary tract infection and his daughter at his request came to look after him for four weeks. He was so ill that he was unable to leave his bed and whilst on the earlier occasion he had been able to deal with his urinary bags himself, this time he was unable to do so and his daughter had to assist him. A live-in housekeeper/carer rate for those four weeks has been claimed which is reasonable given the severity of the plaintiff's infection and his complete immobilisation. During the rest of 1993 his daughter continued to assist him one weekend in two and particularly to scrub the low areas which he could not reach and windows, walls and high cupboards. A period of eight hours per fortnight for domestic assistance including gardening is claimed which is allowed. The total amount claimed and allowed for the period to 31 December 1993 is $4,647.50 which is allowed.
           The plaintiff's daughter assisted him throughout 1994 and 1995 and the claim has been made at the same rate of eight hours per fortnight. For the period 1 January 1994 to 31 August 1995 that amounts to $3,177.50 which is allowed.
           In September 1995 after the failed mediation the plaintiff felt completely distressed and unable to cope with the deficits in his life. Mr Johnston, clinical psychologist, found on testing in 1993 that the plaintiff had elevated levels of anxiety and depression said to be typical of a person experiencing chronic pain or ongoing physical disability. From September 1995 the plaintiff's depressed condition was brought about as a consequence of his injuries. It was reasonable that he had the benefit of more intense care and attention during this period which was not simply a need for companionship. His daughter said that she remained with him until she was persuaded that he was well again and able to manage on his own. The claim has been made on the basis of a live-in housekeeper for the period 1 September to 31 December 1995. It may have been possible for the plaintiff to have been adequately treated during this period with something less than a full-time live-in housekeeper but I accept the plaintiff's evidence as to his need and Kelly Groeneveld's evidence of what she observed of her father at this time. I am persuaded that it is not unreasonable and is allowed at $10,980.
           Mrs Glen deals with the cost of a mobile work platform of $2,440. The plaintiff gave evidence that he did purchase such a work platform to enable him to work with his tools which he enjoyed. This is a substitute recreational activity for the other things which he did prior to sustaining his injury. It is reasonable to infer that the plaintiff's pre-accident recreational pursuits, particularly speed boat and water skiing activities cost him money. I am not persuaded that it is reasonable to expect the defendant to pay for the substitute activity.
           Kelly and Leah Groeneveld assist their father one weekend in alternate fortnights. Sometimes Kelly remains for three or four days with her father. The basis of the assistance for which a claim is made is in respect of the things which the plaintiff is unable to do for himself or only with difficulty and risk. The claim is the same as previously at 8 hours each two weeks including gardening. Dr Gillett's opinion in May 1996 was that the plaintiff would need 6 to 8 hours weekly including gardening so this is a far from extravagant claim. From 1 January to 17 June 1996 is a period of 25 weeks. The rate is $42 per week and is allowed at $1,050.
           Mrs Glen makes reference to a monthly mechanical car wash at $4 per visit. There was no reference to this in the plaintiff's evidence or why his daughters might not have washed the car. At one stage the plaintiff indicated that he was able to clean the outside of his car with a plastic broom. I accept however that this would be something which could be done only with difficulty and then not very well. The expenditure to clean the vehicle would be an item of special damage similar to the vehicle maintenance but does not seem to have been claimed under that head. In the absence of anything more I do not propose to allow it although it is a relatively modest sum.
           Mr Williams has proposed that the appropriate amount for past care which ought to be allowed is $15,000 but has not pointed to any item apart from the hospital visits and Kelly's four month stay for reduction.
           The total of the amounts which I have allowed add up to $27,094.65 which is allowed.
           Interest is allowed on that amount at 2% for 4¾ years which amounts to $2,573.99.
Future Care
           Mrs Glenn has prepared a schedule based on things which the plaintiff can do but only with great difficulty and which in her opinion it would be desirable for the plaintiff to hand over to others. These include vacuuming, sweeping, washing the floors and ironing. This adds up to 9 hours per week including gardening and is costed at $97.50 per week. She considers that should the plaintiff live in a 14 square dwelling as proposed by Mr Deshon he would need more cleaning and gardening assistance. While the area will be larger, commonsense suggests that a new purpose-built house and garden would be easier or as easy to maintain. Mrs Glen recommends 7½ hours per week as appropriate to the plaintiff's present needs. That is consistent with Dr Gillett's recommendation of 6 to 8 hours per week. The plaintiff told Dr Hill in May 1996 that 4 hours help a day would enable him to keep the house in order and maintain the garden and assist him with the shopping. I did not understand Dr Hill to disagree with that estimate particularly as he concluded that when he was wheelchair-bound the assistance which he would require would increase to 6 hours a day. In cross-examination I understood Dr Hill to agree that on a conservative estimate 2-3 hours a day would be taken up with basic housekeeping some of which the plaintiff might be capable of doing from a wheelchair and the balance would be assistance more akin to companionship, to use Dr Hill's example, having someone to hand to pick up a dropped newspaper. Dr Gillett thought that by the time the plaintiff was in his 60's and 70's he would need four hours per day housekeeping assistance and then complete care. Gardening assistance for the future has been included in Mr Deshon's calculations for house maintenance and it is there that I shall deal with that aspect of the plaintiff's needs.
           Bearing in mind the plaintiff's independence and because gardening has been excluded under this head I propose to allow domestic assistance at 6 hours per week at $11 per hour for 5 years. Using the 5% tables that amounts to $15,279.66.
           Thereafter the plaintiff's needs must be calculated on the basis that he is generally dependent upon the wheelchair for his mobilisation except that he has some capacity to transfer from the wheelchair to the toilet and to the shower chair. As he gets older he may needs assistance even in carrying out those tasks. The estimate of 4 hours a day by Dr Gillett and 2-3 hours a day by Dr Hill and bearing in mind Dr Hill's comments about the need for a housekeeper to be generally available suggests that a live-in housekeeper/companion is the appropriate way to assess the plaintiff's future needs. Mrs Glen has calculated a commercial rate for a live-in carer/housekeeper for a person who is wheelchair-fast. She has included $1,300 per annum for gardening and mowing which I shall deduct. That seems to be a useful figure as a starting point. Her calculations including superannuation and workers' compensation for two carers gives an annual figure of $35,830 and a weekly cost of almost $690. Dr Hill's firm opinion that the plaintiff will remain as independent as he can and as private as he can for as long as possible together with my own assessment of the plaintiff suggests that a commercially provided full time live-in carer is not what the plaintiff will seek. I am of the view that something in the region of $400 per week will obtain for the plaintiff the assistance which he will need until perhaps the last couple of years of his life. This estimate is on the basis that the plaintiff will provide the carer with accommodation and board together with a reasonable wage. I am conscious that no exact figure was provided but Dr Hill referred to "granny-sitter" rates. I will allow $400 per week for 8 years commencing in 5 years time. Using the 5% tables that amounts to $108,320.
           For the last two years of his life it seems likely that the plaintiff will need complete care and I will allow $690 per week for two years commencing in 13 years using the 5% tables. That amounts to $38,383.70. The total amount allowed for future care is $161,983.36.
Past Loss of Income
           Although the plaintiff had a scant recollection of earlier back injuries at work the records of the defendant indicate that as early as May 1979 he experienced some back pain in the course of his employment doing heavy work. Some 18 months later he felt pain in his back when he was lifting a brick, diagnosed as musculo-ligamentous strain. In August 1985 he felt back pain when mixing cement and was off heavy duties for about two weeks for which a possible diagnosis of a prolapsed lumbar disc was made. Conservative treatment was given and the pain settled until 1989. In mid-1989 he felt the gradual onset of low back pain whilst he was laying bricks. At the time of his accident the plaintiff said that he was laying 400 bricks a day and was leading his team of timber men. He denied any back problems at that stage. Dr Gillett thought that most likely the plaintiff had degeneration in his spine and that he was at risk of disc injury if he continued in a heavy occupation. He thought that the plaintiff would not have worked to normal retirement age with that history and in his late 50's he would have been looking for some lighter work. It was accepted by the defence that lighter work was traditionally available for miners and timber men in the industry as they reached an age where heavy work was no longer appropriate.
           The plaintiff has a history of heavy smoking tobacco. He had been advised to reduce his smoking as a consequence of his reduced lung capacity readings when tested at the mine's medical centre. However he said that he felt no better after three months and resumed smoking again. It was not until the accident that he stopped smoking and there is no reason to suppose that he would have discontinued of his own volition but for some traumatic intervention. On the readings from 1975 to 1990 Dr Hill, who was familiar with spirometry testing, concluded that the plaintiff had some progressive lung disease. He considered that with a vital capacity of 67% the plaintiff's prospect of continuing to do physically heavy work was limited and, as I understood his evidence, he would be driven to seek lighter work by the age of 60. It should be borne in mind that the plaintiff was working in dusty conditions underground as well as smoking very heavily. Mr Copely pointed out that at no time had or has the plaintiff been diagnosed as suffering from emphysema, which is the case, but nonetheless his greatly reduced lung capacity readings which were present in 1990 suggest that considerable damage had been sustained to his lungs. I accept Dr Hill's opinion that that would be a factor which would preclude him from very heavy work underground past the age of 60.
           Mr Williams also referred to the plaintiff's desire to retire early when he had sufficient money to buy his boat and sail around the world. The plaintiff said that the boat became increasingly beyond his means as the years passed and although he had saved $50,000 by 1991 he was still about $100,000 short of his goal. I think it unlikely that he would have stopped work prior to his ordinary retirement age at 65 to pursue this goal unless the mine made earlier retirement financially attractive to him.
           I have concluded that the plaintiff would probably have continued to work to age 60 as a timber man but thereafter would have sought lighter work and would have remained in employment with the defendant until aged 65 years.
           The plaintiff is now aged 59 years and I will calculate his past loss by reference to a comparable employee's wages which are accepted by the defence as accurate. Mr Copely made his calculations to 27 May 1996 amounting to $190,226 or a net average wage per week of $773. I will add a further three weeks to date of judgment amounting to $2,319. The total is $192,545. That amount should be discounted for the usual contingencies of life which I do at 5% which amounts to $182,917.75 which I allow.
Interest
           The plaintiff received weekly Worker's Compensation benefits of $34,239.87 gross of which tax in the sum of $5,977.95 was paid. He also received $135,000 from the superannuation fund established by his employer on account of his total and permanent disablement. Two months after his weekly payments from the Worker's Compensation Board ceased in mid-July 1993 the plaintiff was in receipt of a social security pension. Mr Williams has submitted that no interest should be awarded in respect of the plaintiff's past loss of wages since he has had money in his hands which relates to his lost income for that period. Mr Copely, on the authority of The National Insurance Co of New Zealand Ltd v. Espagne (1961) 105 CLR 569, has argued that the superannuation payment for disability ought not to be brought into account for the purpose of calculating interest on past loss of income. He particularly relied on the passage from the judgment of Sir Owen Dixon at p. 573 where his Honour concluded that a pension received under the relevant social security legislation should not be taken into account in reduction of a plaintiff's damages. His Honour described certain benefits as the "product of a disposition in his [the plaintiff's] favour intended for his enjoyment and not provided in relief of any liability to others fully to compensate him". Both Dixon CJ and Windeyer J were concerned that a negligent party could not treat insurance or other benefit as operating in relief of the negligent party's liability, at pp. 573 and 587. In Haines v. Bendall (1991) 172 CLR 60 the majority held that payments received by a plaintiff pursuant to s.16(1) of the Workers' Compensation Act 1926 (NSW) must be taken into account before calculating interest on the damages assessed for pain, suffering and loss of the amenities of life. They examined the legislation in order to characterise the nature and purpose of the payments and concluded that the compensation paid under s.16 served the same broad purpose as an award of damages at common law and concluded that the receipt of such payments should be taken into account in assessing interest on past pain and suffering.
           In Camm v. Salter [1992] 2 Qd R 342 it was argued that the receipt of a pre-trial invalid pension should be taken into account when ascertaining the amount of interest to be awarded on the plaintiff's damages representing pre-trial economic loss. Thomas J with whom Mackenzie J agreed concluded that the scheme of social security has now changed so significantly since the 1960's that the reasoning in Espagne's case ought to be reconsidered. However the court declined to take the receipt of the invalid pension into account when assessing interest on past loss of income because the state of the evidence was quite imprecise as to the quantum of the benefit received by the plaintiff and no analysis of the social security legislation was attempted by counsel in order to see if it had some resemblance to the compensation awarded for past loss of income as occurred in Haines v. Bendall, supra. Much the same problem arises here. The only evidence concerning the superannuation payment to the plaintiff was his own answer in cross-examination that he had received $135,000. The superannuation document, which possibly was in the possession of the defendant employer, was not placed before the court nor was any attempt made to characterise its purpose so as to identify the payment made pursuant to it with loss of wages. No doubt it can be argued that but for the accident the plaintiff would not have received those payments at that time and accordingly they must, of their nature, relate to his inability to obtain an income. However to do so would be sheer speculation. In the absence of more thorough analysis of the nature of the benefit it would, I think, be inappropriate for me to take a different approach than which was taken by the Full Court in Camm and Salter or the High Court in Haines and Bendall.
           The amount of the invalid pension was not quantified although there was some evidence from the plaintiff that he had received the pension two months after his Worker's Compensation weekly payments stopped and that his present payment is $365 a fortnight. Mr Copely on that basis attempted to calculate an amount for my assistance. I am aware that in some personal injury actions the quantum of the invalid pension is conceded to be relevant to the question of interest on damages for past loss of wages. Mr Copely has made no such concession here. He has relied on Espagne and Camm v. Salter. In the absence of an analysis of the relevant Commonwealth legislation of the kind which occurred in Haines v. Bendall, or a pronouncement by the Court of Appeal or High Court to the effect that the receipt of an invalid pension is to be taken into account for the purpose of calculating interest on past loss of wages I do not think that I ought to do so in this case. I do note, however, that the receipt of that pension has relieved the plaintiff of some of the financial consequences of his lost wages and on that basis it might be thought appropriate to be taken into account when calculating interest. I do not think that to do so would offend against the concern expressed by Dixon CJ and Windeyer J in Espagne of relieving a defendant of liability. Accordingly I propose to take into account only the weekly benefits received from the Worker's Compensation Board, Batchelor v. Burke (1981) 148 CLR 448. Interest is allowed at 6% per annum for 4¾ years on $148,677.88 and amounts to $42,378.20.
Loss of Future Earning Capacity
           As mentioned above, I have concluded that more likely than not the plaintiff would have continued to work as a timber man earning at the present rate of $707 per week until aged 60 in February 1997. There is not precision about picking that date and I refer to the broad evidence of Dr Hill and Dr Gillett. That is a further eight months, 35 weeks, which amounts to $26,950.
           Thereafter until the age of 65 the plaintiff would have been likely to have undertaken lighter duties. Mr Williams has said that the rate of pay for such a person at the defendant's works in Mount Isa is $550 gross per week. Mr Copely has estimated it at $460 net per week. That payment would have been deferred for less than a year so I shall make some adjustment overall. That amounts to $106,720 using the 5% tables.
           Mr Williams has submitted that that amount ought to be discounted by 50% to take account of the various contingencies to which reference has been made. Mr Copely on the other hand has submitted that a 20% reduction of an award based on a total working life to age 65 as a timber man is appropriate. By concluding that the plaintiff would be reduced to light duties by the age of 60 because of his likely degenerative spine I have already taken into account some contingencies. There are other factors such as the plaintiff's reduced lung capacity and the likelihood that he would have continued to smoke, the slight contingency that he may have taken early retirement, the plaintiff's evidence that the present 12 hour shifts for timbermen would have been too much for him and that there were few timbermen in their 60's. In view of the reduction which I have already made and bearing in mind the plaintiff's own personality which persuades me that even though he may have been suffering from some reduction in his capacity to work pain-free, he would have persevered at employment, a further reduction of 15% for those contingencies is all that is called for. That amounts to $113,619.50.
Lost Occupational Superannuation and Long Service Leave

Superannuation
Both Mr Williams and Mr Copely are agreed as to the formula that should be utilised in assessing lost superannuation benefits. They agree that it is not precise but that it has the merit of being reasonably straightforward and in view of their agreement I propose to proceed in that way. That is to multiply the past and future losses by 1.5 and by 7.5%. Mr Copely submits that the income tax should be at 15% whilst Mr Williams at 25%. No submissions, as I recall, were directed to which is appropriate so that I will take the median figure of 20%.
Past superannuation loss
= 7.5% x 1.5 x $182,917.75 = $20,578.25

Future superannuation loss
= 7.5% x 1.5 x $113,619.50 = $12,782.19

TOTAL:$33,360.44

Less income tax at 20% $ 6,672.10

The amount of lost superannuation entitlement is $26,688.36. There is no requirement to discount this further as Mr Williams has submitted.

Long Service Leave
There is no dispute but that the plaintiff would have been entitled to long service leave which would accrue at the rate of 13 weeks for 10 years' service which will be payable in 5 years and amounts to $7,835.
Accommodation Needs
           Mr Williams submitted that since the plaintiff was content to live in a caravan in Mount Isa after he left the family home this indicated a standard of accommodation for which the defendant could be held reasonably liable whilst not advocating caravan accommodation as appropriate. He sought to elucidate from a number of the plaintiff's witnesses their experience of flat type accommodation especially adapted for wheelchair-dependent persons who shared common facilities and whose flats were serviced as to meals, basic housekeeping and laundry. Whilst such accommodation does exist it would appear to be available on a needs test basis. Its availability and cost in the private sector was considered briefly in cross-examination of Mr Deshon. Its availability and suitability for the plaintiff was only faintly explored. There is nothing in the plaintiff's situation which requires that he be institutionalised. The plaintiff lived in the caravan park at Mount Isa because he was a single man and had his dream of saving as much as he could for his boat. He was an independent person who obtained much of his recreational pleasure from outdoor pursuits, such as camping, which would not require him to be closely involved with caravan living. He does not like living in a city environment and I think it not unreasonable of him to wish now for a degree of independence and privacy in his life. I was not persuaded of the sufficiency of the evidence to consider other than the adoption of the plaintiff's present accommodation or the modification of a new dwelling.
           The plaintiff's solicitors retained Mr John Deshon a well respected and well known architect in the field of planning accommodation for people with major physical disabilities. He has prepared his report on a number of bases which included estimating the cost of altering a conventional dwelling to suit the plaintiff's present needs, estimating further modification when he became wheelchair-dependent and estimating the cost of a purpose-built dwelling also in two stages. I do not propose to consider the two-stage approach because there was no suggestion from either counsel that two modification processes were to take place. From a cost point of view there are savings in having one only exercise occur. Mr Williams submitted that since the plaintiff has had a sum of money at his disposal he could easily have purchased a purpose-built dwelling prior to the trial. I have dealt with this submission earlier and regard it as not an indicator that the plaintiff will not utilise an award of damages for this purpose. From the plaintiff's evidence I concluded that he is anxious to have an adequately designed dwelling which will enable him to drive his car with security into a carport attached to the house and undertake the transfer from the car to the house. He is also keen to have a workshop attached to his house which will allow him access to the house to rest when necessary. Mr Deshon has estimated the capital cost difference between a project house with three bedrooms and a purpose-built house for the plaintiff's needs. The major difference between the parties is whether the defendant ought be charged with the modification of a three bedroom dwelling with two bathrooms or something less. The base project house used by Mr Deshon is of 140 square metres at a cost per square metre of $590 for the dwelling. That house modified for wheelchair use will need to be 147 square metres and because it is "one off" the cost per square metre is increased to $685. The architect's fee is 10% of certain identified items. I am not persuaded that the plaintiff has a need for a third bedroom arising from his injuries. It may be the case that the plaintiff does build a dwelling with three bedrooms. I am persuaded for the reasons advanced by Mr Deshon that a second bathroom is a reasonable expense for a housekeeper/carer in the plaintiff's home bearing in mind the plaintiff's problems with his bowel and bladder function and the extra time that he will need to spend in a purpose-built bathroom. Mr Deshon has included smoke and intruder detectors which are not standard items in houses at the present time although expected to be so in the future. Mr Williams submits that the defendant ought not to have to pay for the installation of those items. The amount is $900. The plaintiff is much more vulnerable than an ambulant fit person who lives alone and that cost together with window grilles and a front door security system costing $3,300 seem to be not unreasonable accommodation requirements because of the plaintiff's injuries. It may well be that an ordinary able person would install such things but I am persuaded that the plaintiff would not have done so had he continued to reside in Mount Isa or remained in his pre-accident state of fitness. There is also provision for the installation of a "Vitalcall" system. For the next five years the plaintiff's future needs are calculated on the basis of a few hours per day assistance. In that circumstance the "Vitalcall" system will be necessary for his safety. In theory these costs to modify the house for wheelchair accessibility will not become necessary for another five years but some immediate modifications for his safety and comfort are necessary. It is accepted that it is efficient and cheaper to provide for all future needs straight away. Mr Copely has discounted the amount of $46,072 which is Mr Deshon's calculation of the difference between the capital cost of a project house and a purpose-built house for wheelchair accessibility to $36,000. The ramps appear to be the only extra for future wheelchair accessibility. The other "extra" items are required now and the plaintiff does have a wheelchair at the present time. I would not discount the cost. I have concluded that a third bedroom is unnecessary and the extra 11 sq m which are calculated by Mr Deshon as being necessary for the extra width associated with wheelchair accessibility could in my view be reduced by 8 sq m to be attributed to the bedroom. The overall effect is to reduce the $46,072 by approximately $5,480. A reduction in the architect's fee of $760 gives a figure of $40,043.50 which I allow.
Maintenance of dwelling
           In schedule 5 of his report Mr Deshon estimated the cost of maintenance for the plaintiff's dwelling including gardening at $1,720 per annum. His basis for doing so was to include those things which he considered a reasonably handy home-owner may undertake including internal painting, general maintenance, gardening and rubbish removal. The evidence reveals that the plaintiff was more than an ordinarily competent handyman and certainly undertook all tasks relating to such things himself. The costs are labour costs only. There will, no doubt, be some matters of maintenance that the plaintiff may be able to attend to for himself but they will be of very small value. The amount provided for is $33 per week including gardening which has not been included in the future services needs and is reasonable. Using the 5% tables for 15 years amounts to $18,316.
               Mr Deshon has also provided for other items of maintenance including the service of the roller shutter and motor for the garage at $150 per annum, the service of the detector systems at $150 per annum, depreciation in the detector systems at $50 per annum and the "Vitalcall" service charge at $340 per annum. As I have mentioned I regard it as reasonable that the plaintiff have appropriate security, however the "Vitalcall" system will not be necessary when he has full time housekeeping assistance in five years and so I shall allow that for five years. The first three items amount to $673 per annum which I will allow for 15 years. Using the 5% tables that amounts to $3,735. I will allow the service charge to the "Vitalcall" service for five years which amounts to $1,514. The total under this head is $23,565 which is allowed.
Future aids, equipment and recurring expenses
Manual Wheelchair
Mrs Frances Porter a community adviser in spinal disabilities with the Paraplegic and Quadriplegic Association had assisted the plaintiff in choosing his first wheelchair. She has recommended that he have an Action Pro SA manual wheelchair of American use at a capital cost of $2,620. He presently has a Mobility Plus wheelchair which Mrs Porter had ordered for him through Home Medical Aids two years ago. The plaintiff chose that particular wheelchair which is quite adequate for his needs because he was unable to afford the extra for the American wheelchair. The feature of the latter chair which caused Mrs Porter to recommend it was that it was lighter and allowed more manoeuvrability. Mrs Porter said that the American chairs had a longer life than Australian made wheelchairs but nonetheless recommended that it be replaced in the same time, namely five years. The more expensive chair's advantage is that it is lighter and more manoeuvrable. As I have mentioned, the plaintiff presently uses a wheelchair from time to time but in five years will be wheelchair fast. I have calculated that he will need to have three replacement wheelchairs. I am not persuaded that there are features about the more expensive chair which requires the defendant to pay the extra. The maintenance for the chair is $100 per year and a cushion for the chair is $19.45 per year. The simplest way to deal with the total calculation for the replacement and maintenance including the provision of a cushion each year is to work out an annual cost in respect of the wheelchair. I accept Mr Williams' figures that that annual cost is $491.45 which for 15 years using the 5% tables amounts to $5,245.66.
Canadian crutches
The plaintiff has used these crutches while he continues mobile outside and inside. They require replacing every five years. Using the 5% tables for 15 years gives an amount of $213.50 which I will allow.
Disposable equipment
These items are agreed: Surgilub $2.75 per week; plastic gloves 42 cents per week; catheters 90 cents per week; Habitane $3.60 per week; plastic bags 22 cents per week. That amounts to $7.89 per week. I will allow that for 15 years which on the 5% tables amounts to $4,379.30.
Padded toilet seat
The padded toilet seat is agreed. Its cost is $60.50 per annum which I will allow for 15 years. Using the 5% tables that amounts to $645.77.
Shower chair
Dr Hill considers it necessary for the plaintiff's safety that he have a shower chair immediately. Its cost is $1,191 and it has a life of 10 years. Using the 5% tables that amounts to $1,271. It is unnecessary for the plaintiff to have a shower seat and that has not, as I understand Mr Deshon's evidence been costed in the modifications to a project house.
Lumbar corset
That item is agreed. Dr Hill said that $32 would be a reasonable figure and the plaintiff will require one annually. Using the 5% tables for 15 years gives an amount of $341.56.
Sheepskin (2)
The large sheepskin is to prevent pressure on the plaintiff's skin whilst he is lying in bed. Its cost is $57.75 and needs to be replaced annually. The small sheepskin is to prevent pressure while sitting in the car. Its cost is $27.80 and needs to be replaced annually. That is an annual cost of $85.55. Using the 5% tables for 15 years amounts to $913.15.
Wymo hoist and lifting strap
This hoist and strap permits a person wheelchair-bound to take the wheelchair in the car. The hoist enables the chair to be carried on top of the vehicle. According to Mrs Porter's report this eliminates the need for the plaintiff to lift the chair in and out of the vehicle and permits the interior of the car to remain undamaged with full access to passenger space. The defendant has submitted that it is not a reasonable item because by the time the plaintiff is wheelchair dependent he has been allowed the cost of a housekeeper/attendant who would be available to lift the wheelchair either onto a roof-rack on the car or in the vehicle itself. Until that time if the plaintiff wishes to take a wheelchair with him in his motor vehicle he is sufficiently mobile to do it for himself. This may interfere with the plaintiff lying down on the mattress in the rear part of the car which he needs to do if he travels any distance. This was not explored in evidence and my impression was that at the present time the plaintiff does not take his wheelchair with him in the car when he drives. I accept that this is not a reasonable expense for which the defendant ought to pay.
Hand-held shower rose and replacement hose
This is an item which has been included in Mr Deshon's costings of the bathroom in the house and ought not to be duplicated. In an ordinary home such items need to be replaced from time to time and the replacement ought not be charged to the defendant.
Penile prosthesis
In order for the plaintiff to have some possibility of sexual functioning he could undergo surgical intervention and the provision of a penile prosthesis. The plaintiff's evidence that he would use such a device if he his back and other faculties were back to normal was but faintly expressed in his evidence. Dr Hill thought it quite unlikely that the plaintiff would resort to such measures. He was living as a single man at the time of his accident. It is unlikely that he would undergo such treatment and it is not allowed.
Psychological counselling
Mr Johnston said that some counselling may assist the plaintiff in coping with his disabilities better. I am not persuaded that he would undergo such treatment. When his spirits are particularly low he seems to be able to call upon the assistance of his daughters. He has a very good attitude to his disability and with this award of damages the litigation will be behind him and he will have much to interest him in building his new house.
Medication
The evidence reveals that the plaintiff takes Panadol for his pain on a weekly basis, at $1.79; Hiprex tablets $5.23 per week; Microdantin $3.78 per week. I have concluded that the elevated blood pressure is as a consequence of the injuries received in the accident and the cost of that medication is allowed. Norvac costs $27.70 per week and Capoten $17.56 per week. The medication amounts to $56.06 per week. Using the 5% tables for 15 years amounts to $31,115.54 which is allowed.
RACQ Membership
This is not in contest. The plaintiff did not belong to the RACQ whilst he resided in Mount Isa and there was no suggestion that he would have been likely to do so in the future. He is very dependent upon his motor vehicle and it is reasonable that the defendant should pay that subscription. It is allowed at $36 per annum for 15 years using the 5% tables. Tha amounts to $384.25.
Future motor vehicle servicing
The plaintiff's evidence which was accepted was that he undertook all the servicing of his motor vehicle prior to the accident. A perusal of a bundle of garage accounts for servicing and other repairs (exhibit 41) shows that over a 12 month period approximately $300 was expended in labour for those jobs which the plaintiff could have done for himself. The defendant accepts that such a cost may reasonably be charged to the defendant although Mr Williams has submitted that $200 per annum is the appropriate amount. I will allow $300 per annum using the 5% tables for 15 years. That amounts to $3,202.15.
Mobile Phone
The plaintiff acquired a mobile phone after an accident in his car to which I have referred. Its costs is $214 each five years with rental of $20 per month which is not contested by the defendant. That is allowed in the sum of $3,232.
                 The total for these needs is $50,943.88.
Future medical practitioner visits and testing
                 Dr Bosworth, the plaintiff's general practitioner indicated that he sees the plaintiff regularly to monitor his diabetes, hypertension and urinary tract. Because of his bladder problems the plaintiff needs regular screening of kidney function and blood counts. He also needs biochemical screens because of his diabetes and his hypertension. Dr Bosworth said that if he saw the plaintiff for his spinal injury alone without reference to the diabetes or hypertension that he would see him once every six to eight weeks and his urine screenings would be done about once a month. The blood test would be done quarterly. Dr Bosworth indicated that if he had a healthy 60 year old man he would not do all of the tests more frequently than once every two or three years, (see his estimates in exhibit 18).
                 I accept Mr Copely's submissions that on that evidence 20 visits of standard duration per year are reasonable together with four visits of longer duration per annum. Five tests of urine culture are submitted to be appropriate together with the other tests mentioned by Dr Bosworth. During his pre-accident time with the defendant the plaintiff sustained a large number of relatively minor injuries most of which appeared to have been treated by the works medical centre. However he also had a general practitioner and seems to have attended him from time to time. The amount proposed by Mr Williams of $7,000 is approximately half that proposed by Mr Copely. Mr Williams' reduced figure is referable to his exclusion of blood pressure treatment and diabetes testing. I have excluded diabetes on the evidence as caused by the injuries sustained in the accident. Taking a fairly broad view of this head of damages I would allow $20 per week for 15 years using the 5% tables. That amounts to $11,100.80.
Future surgery
                 Dr Hill has indicated that the manual evacuation of the plaintiff's bowels is responsible for the indication of the presence of haemorrhoids. It is expected that he will require surgery to deal with this problem in the immediate future. The plaintiff has said he will undergo that surgery. Dr Hill said that there was a real risk that a person with a neurogenic bowel will have a recurrence of the problem and he thought that in the plaintiff's lifetime he may require at least two such procedures which would necessitate him to be hospitalised for at least one week.
                 Although it was suggested that he may need to be hospitalised if he contracted urinary tract infections again the past shows that although very ill this was not necessary. He has not been hospitalised since he left the Princess Alexandra in 1991. There are no other apparent threats to his health that might require hospitalisation in the future apart from the haemorrhoid operation. If I allow the cost of two surgical procedures for the removal of haemorrhoids, the second of which may not in fact be required this would take up some risk of any incidental stay as a consequence of infections through the bladder or other injury-related problems. Dr Hill did mention in his report of 10 May 1993 (exhibit 5) that a vasectomy would help prevent organisms travelling from the urethra to the testicle which led to orchitis on one occasion when the plaintiff had a bladder infection. This was not explored with the plaintiff or Dr Hill in evidence and since his infections appear to be well controlled since 1993 with the regular consumption of antibiotics as part of his ordinary drug regime it seems not appropriate to include this as an item of future surgery. Dr Hill suggested that more likely than not the plaintiff would return to a hospital with which he was familiar to have future surgery and I accept this as likely. Exhibit 38 sets out the present accommodation and surgical costs associated with an haemorrhoidectomy. Dr Hill is the author of exhibit 38. He estimates the time in hospital for such a procedure at 4-6 days. In oral evidence he suggested one week and that seems a reasonable time. The cost per day at the Princess Alexandra Hospital is $449 and the cost per week is $3,143. The cost of the operative procedure is $170, the anaesthetist fee is $97.65 and theatre cost is $480, which totals $747.65. The total cost of the operative procedure including accommodation is $8,376.55. Although no evidence was given as to when a second operative procedure might be necessary, I will assume that that will occur in ten years. I will allow the cost of future surgery at $13,500.
Cost of motor vehicle
                 The plaintiff has sought as an item of special damage the capital cost of the purchase of a motor vehicle with hand controls. It is strenuously contested by Mr Williams. The plaintiff already had a 12 year old motor vehicle suitable for his purposes prior to injury but quite unsuitable post-injury. The plaintiff paid $25,375 for his new car. He has subsequently traded it in on another vehicle in order to keep his motor vehicle relatively repair-free and reliable. No claim is made with respect to subsequent vehicles. The plaintiff did not utilise his Toyota for trade-in purposes but gave the vehicle to Mr and Mrs Lemon to thank them for their assistance to him. The appropriate approach would be to value that vehicle and make some adjustment towards the need to purchase a different kind of vehicle dictated by the plaintiff's injuries. I have no figures but propose to make some estimate. I think the approach should be similar to that of accommodation, namely, to allow the extra cost to a plaintiff of either altering a house or having it purpose-built. I note that on the invoice for the plaintiff's first motor vehicle no charge was made for hand controls. Previously the plaintiff was content with an older vehicle which was manually driven. It is likely that he would have continued with that vehicle for some time and then bought another second-hand vehicle to replace it. It is essential that the plaintiff have a reliable vehicle which is an extra charge upon him. I will allow the amount of $15,000 towards this cost.
Special damages
                 Exhibit 35 is a schedule of the plaintiff's special damages. The following are not contested: expenses refundable to the Worker's Compensation Board; medical expenses refundable to Medicare; drugs; medical items; wheelchair; special shoes; lambswool seat covers; foam mattress; RACQ membership; service of the motor vehicle; the car phone; the Telecom connection fee; the Fox v. Wood component, and the refund to Queensland Health for medical aids and equipment. The items of special damage in contest are the cost of a new bed and mattress at $1,000 and pillows and sheets. Dr Hill indicated that no special bed or mattress was required for a person with injuries of the kind sustained by the plaintiff except the firmer the better. The bed in the unit was too soft and was replaced by the plaintiff. He apparently had no need of a bed and mattress prior to sustaining his injuries since he lived in a caravan. Mr Williams submitted that these are items of everyday living and ought not to be recoverable from the defendant. The plaintiff would not, but for his injuries have been put to the expense of a new bed and extra pillows. I propose to discount the claim to reflect the plaintiff's requirement for bedding in any event and will allow $500. That amounts to $16,440.55. Interest is allowed on $4,722.80 of that amount, which appear to be items which have been paid for by the plaintiff, at 6% per annum for 4¾ years which amounts to $1,345.99.
Summary of damages
Pain and suffering and loss of the
amenities of life past and future  $100,000.00

Interest on $13,000 for 4¾ years
at 2% per annum $ 1,235.00

Past gratuitous care $ 27,094.65

Interest thereon at 4¾ years
at 2% per annum $ 2,573.99

Future care $161,983.36

Past loss of wages $182,917.75

Interest for 4¾ years
at 6% per annum $ 42,378.20

Loss of future earning capacity $113,619.50

Lost occupational superannuation $ 26,688.36

Lost long service leave entitlement $ 7,835.00

Accommodation requirement $ 40,043.50

Maintenance (including gardening) $ 23,565.00

Future aids and equipment $ 50,943.88

Future medical treatment $ 11,100.80

Future surgery $ 13,500.00

Car allowance $ 15,000.00

Special damages $ 16,440.55

Interest on $4,722.80
at 6% per annum for 4¾ years $ 1,345.99

TOTAL:$838,265.53

From that must be deducted the refund to the Worker's Compensation Board which is $73,494.85. I will round the figure to $764,771.
                 There will be judgment for the plaintiff against the defendant in the sum of $764,771.
                 Unless there are submissions to the contrary the defendant must pay the plaintiff's costs of and incidental to the action to be taxed including reserved costs.
                 For the guidance of the taxing officer I have been asked to indicate that this was a matter which required the attendance of senior counsel. This action involved complex matters of calculation and some matters of principle of some difficulty. I was much assisted by the efficient way in which both counsel conducted this action with the maximum of co-operation on each side and the preparation of lengthy schedules by the plaintiff's counsel. I am persuaded that had this industry not occurred outside court hours then at least one other day would have been taken up with this action and that it was appropriate that senior counsel be briefed for the plaintiff.
                 I give liberty to apply with respect to the arithmetical calculations in these reasons for judgment.

[1996] QSC 103

19 June 1996