Gross v Gross & Collins-Mcbride No. DCCIV-99-1458

R. GROSS v G. GROSS & COLLINS-McBRIDE
[2000] SADC 112

Judge Vanstone

Civil

The plaintiff claims damages in respect of personal injuries sustained by him during a traffic incident which occurred on the 10th February, 1997 near Old Noarlunga. He was a passenger in a Ford F100 panel van driven by his brother, the first defendant, and which was travelling in a south easterly direction on the Victor Harbor Road. Due to the actions of the second defendant, who was attempting to turn right into that road from Robinson Road, the first defendant had to take evasive action consisting of first, a swerve to his left onto the dirt verge, and then, a swerve to the right back onto the paved roadway. Any collision was thereby avoided, but in the course of those manoeuvres the plaintiff, who had his window down and who was holding on to the frame of the quarter-vent, suffered trauma to his neck and left shoulder, causing a musculo-ligamentous injury to the neck and impingement of the shoulder. The essence of his claim is that, since that time, he has been unable to follow his occupation as a ceiling fixer, that he will not be able to resume that occupation, and further that he is effectively precluded from following any other work which he might otherwise have been able to do.
Counsel for the first and second defendants admits negligence and admits that the plaintiff did indeed suffer an injury which rendered him unable to work for a significant period, and which makes it unlikely that he will again work as a ceiling fixer. What is in dispute is the extent to which the plaintiff’s condition has disabled him. The defendants contend that from about March, 1998 - by which time the plaintiff’s condition had settled - he was fit enough to undertake various types of employment but made no attempt to do so. The defendants contend that it has not been proved by the plaintiff that he has mitigated his loss.
The plaintiff is now aged 29 years. He was born on the 26th April, 1971. His evidence was given in a fragmented manner over a number of days. I found him to be truthful and generally an accurate historian. The plaintiff left school when he was 15 years old having not enjoyed it. He went to work immediately with his father who had a ceiling fixing business. Initially he was engaged in loading trucks, cleaning and general work by way of assistance, but soon enough he progressed to learn the trade. The term “ceiling fixing” encompasses fixing pieces of gyprock or plasterboard to walls as well as ceilings. Gyprock comes in various lengths, widths and thicknesses. The weights of such sheets might vary from 25 to 60 kilograms. It is properly classified as heavy work. It involves holding sheets in position and gluing and nailing them. Often the sheets are handled above head height, requiring great strength. Of course, the materials have to be transported from the point of delivery to the area where they are to be affixed. In addition, there are trestles, benches and buckets of glue which need to be handled. The plaintiff had a distinct advantage in this work by virtue of his height of 6 feet and 7 inches, he being able to affix sheets to walls of 2.4 metres without the assistance of benches. On the other hand, he was probably less agile than smaller men. He said that he was good at his work and derived satisfaction from it.
In 1993 his parents’ ceiling fixing business failed. His two brothers Gary, the first defendant, and Frank then started their own business, F.G. Enterprises Pty. Limited trading as Prestige Linings, and the plaintiff was employed within it. By way of payment he received the same weekly amount as he had when working for his parents, being $328.
In April, 1996 the plaintiff was effectively retrenched by his brothers, although the primary reason for ceasing work was probably related more to his wife’s condition than to the downturn in building work. Early that year she was pregnant with their third child and complications necessitated her being in hospital for many weeks. During that time and after the birth of the child the plaintiff had the primary care of the two older children. In its first months the baby’s health was not robust and the plaintiff remained at home to assist his wife. Prior to her difficulties, the plaintiff’s wife had also worked within the business of F.G. Enterprises Pty. Limited.
In November, 1996 Mr Gary Gross approached the plaintiff to lure him back to the business. Frank Gross had suffered an injury and was unable to work and, in addition, business had picked up markedly. Gary Gross was prepared to pay the plaintiff $600 per week and to transport him to and from work-sites in order to secure his labour. The arrangement envisaged that the plaintiff might have to work longer hours than previously. It is worth noting that this rate was about 120 per cent of the relevant award. The plaintiff took up that employment and worked on those terms for his brother until the traffic incident on the 10th February, 1997.
I return then to the circumstances of that incident.
It occurred at about seven or eight o’clock on a Monday morning, when Gary Gross was driving the plaintiff to a work-site at Willunga. Notwithstanding the incident, they continued to the work-site, but found that work there had not proceeded to a point where the ceiling fixing could be commenced. The plaintiff said that immediately after the incident his neck started hurting and was stiff but he was also aware of pain in his left shoulder and hand. By the time they reached the work-site his neck in particular was hurting a great deal. They did not remain there.
After returning home, the plaintiff’s wife took him to his regular chiropractor, Mr Timbs, who performed a manipulation of his neck. Not having obtained any relief from that procedure, he consulted his general practitioner, Dr Steven Burns, that evening. Dr Burns examined him, gave him a certificate and prescribed pain relieving medication. The plaintiff continued to experience pain over the ensuing weeks. Physiotherapy in the form of ultrasound did not provide much relief. He found that whilst his neck pain settled down, the pain in his left shoulder intensified. Over a period of weeks Dr Burns ordered various investigations of the plaintiff’s neck and shoulder and prescribed anti-inflammatory medication, which gave some relief. His use of his left arm was restricted to the extent that he was unable to raise it even to the horizontal position. As a result of Dr Burns’ recommendation the plaintiff consulted Dr Jan Tomlinson, orthopaedic surgeon, on the 8th April, 1997. Dr Tomlinson diagnosed impingement syndrome. That condition occurs where the supraspinatus tendon catches on the under surface of the acromion as the arm is lifted in abduction. There was confirmatory evidence of that diagnosis in the form of an ultrasound examination of the shoulder showing that the left supraspinatus tendon was slightly thicker than was the right one. Dr Tomlinson found that diagnosis was consistent with the event said to have caused the injury.
Ultrasound treatment and anti-inflammatory medication having proved ineffectual, Dr Tomlinson suggested that the subacromial space be injected with Marcain, an anaesthetic, and Celestone, a steroid. That was done, but it provided only temporary relief. A further ultrasound examination suggested a small insertional tear of the subscapularis tendon.
Upon Dr Tomlinson’s recommendation, the plaintiff underwent surgery to the shoulder on the 5th August, 1997. Dr Tomlinson performed a shoulder arthroscopy and subacromial decompression. Her evidence was that upon the arthroscopy she saw mild synovitis of the articular surfaces of the tendons of the rotator cuff and minor fraying of the superior surface of the cuff, indicative of impingement. Whilst the subacromial decompression procedure was indeed performed, Dr Tomlinson said that the operation was unusually difficult due to the size of the plaintiff. As I mentioned, the plaintiff is a very tall man and at all relevant times weighed about 160 to 170 kilograms.
After the surgery the plaintiff had his arm in a sling for about six weeks. During that time he was cared for by his wife. In the event, surgery was unsuccessful. After the post-operative period the plaintiff said that the pain was not much different. There was a slight improvement in the range of shoulder movements but he could still not raise his arm above 90 degrees. A further ultrasound examination demonstrated that there was still impingement.
Dr Tomlinson recommended that the plaintiff undergo further surgery in the form of another arthroscopy and further subacromial decompression, possibly to be performed by open shoulder surgery. Whilst the plaintiff accepted that recommendation and made preparations for surgery to take place in mid February, 1998, because of a lack of communication between the plaintiff’s and defendants’ solicitors, the insurer declined to guarantee payment for the surgery and it was cancelled. The preponderance of medical opinion provided during the trial leads me to the view that the prospects of further improvement from that surgery were not weighted in the plaintiff’s favour. In those circumstances the matter of whether the plaintiff should have taken up the matter further with the insurer, or sought alternative means of having the surgery performed, is barren ground. And, if the plaintiff were to now undertake such surgery, it seems that the prospects of a successful outcome would be further diminished by the effluxion of time.
The end result is that the plaintiff is left with quite limited use of his left arm. He is unable to raise it above the horizontal position either in flexion or abduction. Any attempt to do so results in excruciating pain. In addition he has lost power in his left arm and he suffers constant pain from it. Whilst the plaintiff said that neck pain had settled reasonably well in late 1997 and 1998, he gave evidence that in 1999 he began to experience a new sensation in relation to his neck in which his trapezius muscle would very often go into spasm sending shooting pains into his shoulder and neck and resulting in headaches. Dr Tomlinson’s view about the plaintiff’s neck pain was that it was secondary to his shoulder complaint. She was of the view that more recent symptoms of elbow and wrist pain and paraesthesia to the fingers of the left hand were consistent with a mild traction lesion of the brachial plexus. She believed this was caused by alterations to the plaintiff’s posture engendered by the shoulder pain.
Several doctors saw the plaintiff on one or more occasions in a medico-legal context. They included Dr David Cullum and Dr John Meegan, both of whom are occupational physicians. They were called by the plaintiff and defendants respectively. I found each of them to be impressive witnesses and their evidence to be helpful. In my view the difference between their ultimate opinions as to the ability of the plaintiff to resume work of some kind comes down to a question of emphasis. To the extent of that difference, I prefer Dr Meegan’s evidence.
Dr Cullum’s view was that the plaintiff’s signs and symptoms were not accounted for by the diagnosis of impingement syndrome alone. In his view there were two separate injuries in issue, the one being to the neck and cervical spine, and the other being to the left shoulder. He had no quarrel with Dr Tomlinson’s diagnosis concerning the left shoulder but considered that her conclusion that the neck problem at C7 was referred pain from the shoulder failed to account for a decreased triceps jerk and decreased supinator jerk. In his view further testing was required if a C7 radiculopathy were to be excluded. In essence, he used that expression to encompass pathology of the radicular nerve root. An alternative diagnosis was said to be a brachial plexus lesion, the brachial plexus being the coalescence of the C6, C7, C8, T1 and T2 nerves as they leave the spinal cord and travel distally to form the three major nerves of the arm. On this analysis, the lesion or blockage would be further from the spinal cord itself. Whilst he said that a CT scan of the cervical spine might throw light on his provisional diagnosis, he questioned the utility of performing it - particularly in such a large patient - as it would not indicate any particular further treatment.
In Dr Cullum’s view the plaintiff was permanently unable to return to work as a ceiling fixer. In terms of the plaintiff finding other suitable work of which he would be physically capable, Dr Cullum believed that the plaintiff would have “tremendous difficulty”. When pressed on the plaintiff’s precise physical capabilities and their fit with particular jobs, Dr Cullum considered that he had insufficient information of the plaintiff’s neurological function to enable formation of a firm view. In addition to the plaintiff’s limited education, lack of experience in any other field and physical limitations, Dr Cullum expressed the view that he had been affected psycho-socially and should have psychological counselling, as well as instruction in how to use his shoulder and neck without aggravating his symptoms.
Dr John Meegan accepted a diagnosis of “left rotator cuff tendonitis with impingement”, and he further accepted that such an injury was consistent with the forces generated in the motor vehicle incident. Like Dr Cullum he considered that the prospects of any improvement upon further surgery were always fairly slim and had been further reduced by the time lapse. Again like Dr Cullum he inclined to the view that a separate problem in the neck, probably involving the muscles and some spinal segments, was causing the cervical signs and symptoms. He considered that whether that problem turned out to be a radiculopathy or brachial plexus lesion was not going to alter an assessment of whether the plaintiff was able to work in the future. Dr Meegan agreed that the plaintiff would never again be fit for ceiling fixing work, but the fact that his dominant right arm remained available to him and the fact that he retained some use of his left arm made him reluctant to say that the plaintiff would not work again. He acknowledged that the level of pain apparently suffered by the plaintiff on an ongoing basis had to be taken into account but he asserted that it was not an adequate basis on which to exclude the possibility of work. He accepted that the plaintiff would have difficulty in convincing an employer to take him on given his history, but said it was not impossible. In explaining his position, Dr Meegan said that he did not wish to be the prescriber of disability, especially in relation to a man as young as the plaintiff. He said he had patients in similar circumstances who were able to “find their way back to work”.
The only other doctor who gave evidence before me was Dr Mark Awerbuch, a consultant rheumatologist and the Medical Director of the Pain Management Unit at the Memorial Hospital. In some respects Dr Awerbuch’s evidence was at odds with that of each of the other medical practitioners. Finding no evidence in the ultrasound examinations subsequent to the surgery pointing to continuing impingement, he was disinclined to accept that as a current diagnosis. I find that position to be a curious one. He considered it would be appropriate for the plaintiff to undergo a manipulation under thiopentone anaesthesia to more accurately determine the available range of movements. None of the other doctors considered there was any point in the plaintiff undergoing this procedure. In light of the fact that I accept the plaintiff’s presentation to all the medical practitioners as genuine, and that I accept, in general terms, the opinions of the treating orthopaedic surgeon and the consulting physicians called by both sides as to the diagnosis and prognosis, I do not find Dr Awerbuch’s evidence helpful.

In addition to the medical evidence the plaintiff called a psychologist, Ms Voula Antoniadis, one of whose specialties is vocational assessment. Ms Antoniadis provided two reports to the plaintiff’s solicitors in a medico-legal context. These were designed to establish whether there were areas of work into which the plaintiff could move. The witness took into account such matters as Mr. Gross’ background, education, work history and the extent of his disabilities. As to that last matter, Ms Antoniadis was not as well informed at the time of her first report as she was by July, 2000, when she reconsidered her opinions. Consequently, whilst she initially identified various areas into which the plaintiff might profitably move, her later revision had the effect of closing those doors. The areas initially identified included security work, gardening, insurance assessing, real estate agency work and crane operation. In addition there were some areas of employment which were theoretically suitable but discounted by the plaintiff as being not of interest to him. They included sales work in a hardware store or delicatessen, unskilled factory work and the like. The plaintiff also excluded occupations which might require extended periods of driving. In her more recent report, Ms Antoniadis effectively eliminated all the previously identified possibilities and expressed the view that it would be extremely difficult to place the plaintiff in any suitable employment. Recommendations made in her earlier report to the effect that the plaintiff should explore some job options and consider undertaking voluntary work had in fact been acted upon by the plaintiff by the time he gave evidence.

The upshot of all the medical evidence which I accept is that the plaintiff is left with limited use of his left (non-dominant) arm and with some disability to his cervical spine, which are likely to be permanent. He will not again be able to take up his occupation as a ceiling fixer, nor indeed to undertake any heavy work at all. Whilst it is possible to conceive of jobs which the plaintiff could usefully and effectively do, practically speaking it will be difficult for him to compete in the open market for those jobs against able-bodied workers with no history of injury. I am not satisfied, however, that the plaintiff will never work again. In this respect I prefer Dr Meegan’s evidence to that of Dr Cullum and Ms Antoniadis. Not only, as I touched on, was I particularly impressed with Dr Meegan’s qualifications, experience and apparent objectivity, but his views appealed to me as being supported by common sense. I believe that the plaintiff, being the pleasant and resourceful man that he is, will in all probability, at some stage in the future, demonstrate his employability and go on to establish himself again in the work-force. When that might be and what hours of work and remuneration might apply is unknown.
The defendants set out to prove that, prior to the traffic incident in issue, the plaintiff was already significantly disabled by the residual effects of a back injury sustained by him in 1987. Much time was consumed in cross-examination of the plaintiff’s witnesses as to this issue. In examination-in-chief the plaintiff related that in March, 1987, whilst working for his father on a ceiling fixing job at Pasadena, he had been unloading plasterboard from a truck, carrying it across a plank and into a house. Whilst so doing, a gust of wind caught the plasterboard and he fell from the plank on to a pile of bricks beneath. His lower back was sore and bruised but he continued at work the next day. A further incident occurred on the 21st April, 1987 when he was again unloading plasterboard, this time at Lyndoch. He lost his footing and twisted his body sharply, injuring his back. Three days later he went to the chiropractor, but quite intense lower back pain persisted and he eventually saw an orthopaedic surgeon. He was treated with physiotherapy and his lower back was manipulated under anaesthetic by the surgeon, but that was unsuccessful. He was unable to work for several years, eventually exhausting the ceiling of worker’s compensation payments and proceeding to unemployment benefits. A common law negligence claim was finalised in early 1991 and he received a substantial payment.

In May, 1991 the plaintiff’s parents proposed that if he were to invest $27,000 of his compensation payment in their business, they would provide a job for the plaintiff as a storeman at their plasterboard warehouse. That work did not involve any heavy lifting and had the advantage that the plaintiff was able to utilise the knowledge he had built up working in the ceiling fixing industry. By July, 1992, after a stringent weight loss and fitness programme, the plaintiff slowly moved back into gyprock fixing in his parents’ business. From time to time he said he suffered “flare ups” of his lower back condition on account of the work but chiropractic treatment would alleviate the pain. With the assistance of occasional rest periods he was able to progress to all the aspects of ceiling fixing work, without need of any time off work. His evidence was that by the time of the traffic incident in 1997 the residual effects of his back injury were not having any impact on his work for Prestige Linings. Whilst he acknowledged that he generally did the work on the walls as his co-workers tackled the ceilings, he said that was mainly due to his extra height and efficiency with walls. There was some attempt to cross-examine the plaintiff’s brother, Mr. Gary Gross (who, though the first defendant, gave evidence for the plaintiff), on this issue, suggesting that he had previously told a worker’s compensation investigator “you can [let him] do walls but you can’t let him do ceilings”, but although the first defendant thought he had said something to that effect it was, he said, badly expressed and inaccurate. He said that the plaintiff in his work would do what he was told. He too referred to the plaintiff’s greater efficiency at doing walls, compared with other workers.
Whilst some specific information about the prior work injury was provided by the defendants to Drs Meegan and Awerbuch, no such material was proved before me. Dr Meegan, who was very experienced in assessing conditions affecting the lower back, found no abnormality when he examined the plaintiff. In the plaintiff’s evidence he was, understandably, quite non-specific in his account of those events. Consequently I have no idea of precisely what injury he sustained in 1987 and neither have I any evidence as to what, if any, residual disability he might have been expected to carry. Obviously, the injury was a serious one because he was away from work for about four years after it. But again there is little, if any, evidence as to the progression of his signs and symptoms during that period, nor of what attempts to find work he might have made. I am left with the plaintiff’s own evidence that subject to the odd twinge - satisfactorily treated by chiropractic manipulations which have been proved to be extremely rare - he was well able to perform the heavy work required of him prior to the traffic incident. In these circumstances I consider that the principle of proof referred to in Watts v Rake (1960) 108 CLR 158 per Dixon CJ at 159 and Menzies J at 163-164 and in Purkess v Crittenden (1965) 114 CLR 164 per Barwick CJ, Kitto J and Taylor J at 168 and Windeyer J at 171, applies. In particular I accept that if the defendants wish to have damages assessed on the basis that prior to the relevant event the plaintiff suffered from a condition which caused some disability and which was likely to lead to the plaintiff having a shortened working life, then it is incumbent upon the defendants to prove with some reasonable precision what the pre-existing condition was, how that condition would have developed and at what point it might have led to the plaintiff’s early retirement. Accordingly, in this case, there being no evidence to displace or undermine the evidence of the plaintiff that he was essentially fit at the time of the traffic incident, I am not prepared to discount the plaintiff’s entitlement to damages on the basis of any asserted prior disability.
The question remains as to what extent the plaintiff will be able to exploit his residual earning capacity. As has been observed, the plaintiff has not at any time applied for a position. Nor does he consider himself able to undertake work, in his pain-ridden and depressed state. He has, since August, 1999 and until recently, pursued two avenues of voluntary work. The one involved an early start on each week day to walk 15 greyhounds for a friend in ill-health. The other consisted of visits to an elderly folks home two or three times a week to engage one or more residents in conversation. The plaintiff claimed to have derived satisfaction and a sense of usefulness from both. Recently, he suspended those activities by reason of a painful episode involving his shoulder, which Dr Burns treated over a number of weeks with morphine.
In circumstances where a claimant has not sought to utilise his residual earning capacity, the assessment of its value to him is fraught with difficulty. The defendants argued that in undertaking this voluntary work, particularly with the greyhounds, the plaintiff had effectively contradicted his own medical opinion and demonstrated fitness for part-time work at least.
I do not accept that submission. The greyhound work was undemanding physically as well as enjoyable. In addition there was no compulsion to be there on any particular day bar the wish to assist his friend. But the adherence to a regime such as that at least showed promise for the future, and, as the plaintiff and his wife acknowledged, had other, more immediate, benefits. I accept the plaintiff’s evidence that his disabilities, the level of pain he has suffered to now, and the stresses of his family’s situation and of the litigation effectively incapacitated him for work beyond the time when further surgery was cancelled (which the defendants referred to as a “defining period”) and well into the current year.
The plaintiff’s counsel, Mr Rossi, contended that in so far as the defendants accepted that the plaintiff’s vocation as a ceiling fixer had been permanently lost but argued that he retained earning capacity in other areas, they bore an evidential onus to prove the ambit, availability and value of work in that remaining sphere. Mr Rossi relied on the judgment of Bray CJ in the Full Court decision of Van Velzen v Wagener (1975) 10 SASR 549 at 550 (the other members of the Court did not discuss that point) and upon the following passage in Thomas v O’Shea (1989) Aust. Torts Reports 80-251 per Malcolm CJ and Wallace J:-
“The legal onus of proof of loss of earning capacity rests, of course, on the plaintiff, but once the plaintiff has proved that he has lost his pre-accident earning capacity and has been unable to find alternative employment, or that his condition has prevented him finding alternative employment, an evidentiary burden is cast on the defendant to show what alternative employment opportunities were open, including the state of the labour market and the likely earnings:”
In support of that statement, the Western Australian Full Court made reference to a number of authorities including Van Velzen v Wagener, and Baird v Roberts (1977) 2 NSW LR 389. The latter case was cited for the proposition that a defendant who asserts that a plaintiff is still able to do “light” or “sedentary” work must adduce evidence that work within his capacities is available and as to the likely earnings from it. An examination of the judgment of Mahoney JA, with whose reasons on this point Glass JA agreed, does not in my view substantiate such a principle, or at least one of general application. The appeal there was (in part) a complaint that the trial judge, having found that the plaintiff had suffered a reduction in earning capacity but had not established that he would not be able to gain light work, made no award for that reduction. Whilst Mahoney JA alluded to the fact that there might be cases where an evidentiary onus was upon the defendant as to the availability and value of “bench work”, “process work” and the like, he did not, as I read it, find that this was such a case. He did find that in the absence of evidence on the point from either side, the trial judge could not simply ignore the loss; some attempt had to be made to assess it.
The Court in Thomas v O’Shea then referred to Vanderloo v Walton Ltd. (1976) VR 77 asserting that the case demonstrated that the Victorian approach was similar. The Victorian case was cited as authority for the proposition that where a defendant alleges that a plaintiff has unreasonably refused to undertake work of which he is capable, this amounts to an allegation of failure to mitigate, “in respect of which the legal burden” rests on the defendant. Vanderloo v Walton Ltd. was a case where the defendant disputed that there was any adequate proof of loss of earning capacity. The Court disapproved a direction to the jury that the burden of proof on this issue lay on the defendant, and held that what was in issue was not so much mitigation of damages but whether the plaintiff had made good his claim.
The decision was entirely consistent with the earlier New South Wales Full Court decision Adams v Ascot Iron Foundary Pty. Ltd. (1968) 72 SR (NSW) 120 where the High Court decisions of Watts v Rake and Purkess v Crittenden had been distinguished.
In the end it seems that the proposition put in Thomas v O’Shea is not robustly supported by the cases cited. It may be that the matter is not susceptible of an universal rule. The point at which an evidentiary onus is cast on to a defendant may simply be a measure of the strength of the plaintiff’s evidence and the inferences which can be based on it. That point may well vary depending on the nature and extent of the disability in issue, and the complementary residual ability, and the particular plaintiff’s general employability.
I have examined the matter of onus of proof at some length because it was presented as a matter of significance in the evaluation of the facts of this case. In the end I do not consider that any evidentiary onus was cast on to the defendants at any stage of this matter. It is not as if the residual capacity here is extremely narrow and nor does the plaintiff have only a very few years until he reaches retirement. In some cases there might be a distinction to be drawn between the time period to trial and that beyond it because the later period involves so much extrapolation and speculation. But that is not this case. I am satisfied that, at least until trial, the plaintiff was not capable of undertaking paid work. However, as to the future I am - as I said - not satisfied that the plaintiff will not work again. Doubtless it will take some time for the plaintiff to put behind him the stresses and strains of this litigation, and for him and his wife to re-establish themselves in a new home with a clearer future. In addition there is the question of undertaking counselling as recommended by Dr Cullum. At some future time though, I am satisfied that the plaintiff will make use of his residual earning capacity.
I turn then to the various heads of damages.
In relation to non economic loss I am required to assign a numerical value between one and sixty, treating sixty as the worst conceivable case. Although the plaintiff did not suffer the trauma of a motor vehicle collision and immediate admission to hospital which are often features of these claims, he has suffered severe pain and discomfort in his shoulder and neck over a long period, and that will continue. In addition, he underwent surgery and a difficult post-operative period when he was greatly dependent on his wife. His condition has rendered him unable to do the heavier of the work around the house that he formerly performed. And the financial consequences of the incident have had a profound effect on the plaintiff and his marriage and life generally. Taking into account all those matters I have determined that the proper value to assign to the plaintiff’s pain and suffering and loss of the amenities of life is 12. That results in a figure under this head of $18,600.
In respect of past economic loss I find that the income the plaintiff would have earned from the time of the accident to judgment, after deduction of income taxation and the Medicare levy, but including employer’s superannuation contributions, is $92,520.

Interest is payable on past economic loss. I take the applicable period to be from the accident date to judgment. The parties are agreed that six per cent is an appropriate rate. But allowance needs to be made for the fact that whilst he received no worker’s compensation, the plaintiff has received a disability pension and allowance for his children throughout the relevant period. The evidence was that both amounts totalled per fortnight “in the high four hundreds”. In my view interest is then only payable on the difference. Using a differential of $725 per fortnight and the rate of six per cent, I arrive at an allowance for interest of $5,800.

I turn to the question of loss of earning capacity. As I have said, the plaintiff is unable to follow his previous occupation, and is markedly limited in the range of work which he will be able to do in the future. It is instructive to consider what was the value of the plaintiff’s earning capacity before the event.
I mentioned earlier that at the time of the incident the plaintiff was earning $600 per week gross. His brother and employer, Mr. Gary Gross, gave evidence that in all likelihood that figure would have increased in the ensuing years. He said ceiling fixers then earning $1.15 per square metre are now earning $1.60 to $2.00 because of buoyant conditions. Presumably he was referring to the sub-contracting rate. To illustrate his point he related that, in October, 1997, his father’s status went from that of sub-contractor to employee, and he was then paid $720 per week. The suggestion was that at a similar time the plaintiff’s wage would have gone up in like manner as a matter of parity. The analogy is complicated by reason of extra duties taken on in the business by the plaintiff’s father. I found this evidence to be rather vague. That is not a matter of criticism. It was understandably difficult for Mr. Gary Gross to be precise about what might have been. I consider that in order to be fair both to the plaintiff and the defendants it is appropriate that I use as the relevant figure the plaintiff’s pre-accident earnings rate of $600 per week gross.
A weekly income of $600 was about $472 net and that is the figure which I use for this purpose. Adding to that the superannuation guarantee charge of seven per cent gives an earnings figure per week of $514. The actuarial figures provided by the plaintiff (which I note are taken from table 3B in Luntz “Assessment of Damages for Personal Injury and Death”, Third Edition) give the multiplier for the plaintiff to age 65 as $853 and to age 60 as $811. The first-mentioned figure gives a value of $438,000 odd to the plaintiff’s earning capacity. That provides a useful starting point.
It is then necessary to take into account a number of factors which might have had a negative impact on the plaintiff’s earnings in the course of his working life in any event. For example, there is no guarantee that work within his field - at over-award rates - would always have been available to him. And the heavy nature of that work might have led to retirement or a change of direction long before the usual age. Indeed, Dr Meegan’s evidence was that every fit person starting ceiling fixing at 16 years of age has a limited time working at it. He said it is extremely rare to find a 65 year old man still working in that trade. Such a change of direction might have led to less remuneration. Illness or injury might have intervened. Where the type of work under consideration is heavy and the hours of work long and in circumstances where the plaintiff has demonstrated over the years a certain vulnerability to injury, these factors become significant.
I should mention that Mr Rossi pressed me to put into the balance a positive contingency in the form of a possibility that the plaintiff’s brother might have offered the plaintiff a partnership in his business, bringing with it the opportunity to earn greater amounts. The evidence about this was necessarily hypothetical. Mr Gary Gross did not rule out the possibility but there did not seem to be any factor pointing to it as a real likelihood. Indeed, one would think that the time for it had come and gone before the plaintiff’s injury. In those circumstances I do not consider that it carries much, if any, weight. But I do put into the scales the possibility that whilst working for his brother his wages may well have moved further ahead of the award rate.
It then becomes necessary to make allowance for the fact that the plaintiff retains, as I have found, a not insignificant residual earning capacity. As I have said I am satisfied that he will at some stage re-enter the workforce. It is impossible to say when that might be or what nature of work he will obtain. The fact that he has not to this time felt able to make any attempt to find work leaves the answers to those questions at large. It is clear that he would need to avoid lifting objects over about five kilograms, repetitive shoulder movement and any requirement to use his left arm above shoulder height.
Taking all these matters into account I have reached the conclusion that fair compensation for the future impact of the impairment of the plaintiff’s earning capacity would be $200,000.
The plaintiff’s claim includes an amount for voluntary services rendered to the plaintiff by his wife in the six or so weeks after he underwent shoulder surgery. Both the plaintiff and his wife gave evidence about this period. Mrs Gross’ evidence - which I accept without hesitation - was that whilst he was recuperating with his arm in a sling she had to help him in a range of ways including showering and dressing. The defendants do not contest that some amount is payable. I consider that it is appropriate to fix an amount of $500 under this heading.
An amount for future medical and like expenses was sought by the plaintiff. Having considered the views of the various specialists as to further shoulder surgery he does not now intend to proceed with it. However, as mentioned, counselling has been recommended by Dr Cullum and by Ms Antoniadis aimed at improving confidence and self-esteem and also with a view to exploring job options. Dr Meegan too considered it was not too late to involve someone in his own area to assist in regaining a work focus. I consider that such measures are warranted. In addition, I consider that some reasonably modest amount should be provided for analgesics or other remedial measures and for review by a general practitioner. In my view an amount of $4,000 is justified.
Outstanding special damages are agreed to be $414.65.
A summary of my assessment of the quantum of damages is therefore as follows:
Non economic loss  $18,600.00
Economic loss
  Past   95,520.00
  Future  200,000.00
Voluntary services  500.00
Special damages  414.65
Future treatment   4,000.00
Interest on past economic loss   5,800.00
  __________
$324,834.65
I enter judgment for the sum of $324,834.65.
I shall hear the parties as to costs.

[2000] SADC 112

6 September 2000