James Gordon Douglas v Jennifer Osborn and Gregory Ernest Whelan No. SCGRG 91/2569 Judgment No. 3997 Number of Pages 14 Negligence Road Accident Cases

[1993] SASC 3997

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MILLHOUSE J

CWDS
Negligence - road accident cases - Plaintiff suffered two motor vehicle accidents - first accident resulted in minor injuries with damages at $1 070 - plaintiff suffered more severe injuries in second accident - whiplash - vertigo - psychological problems. Wrongs Acts35a(l), 35a(l)(b)(ii), 35a(1)(g)(i), 35a(1)(h).
Damages - measure and remoteness of damages in actions for tort - personal injury - 46 year old male unemployed; No permanent disability; Wrongs Act scale 20; Past economic loss $70,000.00; Future economic loss $70,000.00; Non-economic loss $23,000.00; Future special loss $18,200.00; Assessment reduced due to contributory negligence by l0 per cent to $190,423.48.

HRNG ADELAIDE, 4-6 and 10-11 May 1993 #DATE 25:6:1993
Counsel for plaintiff:     Mr Peter Hannon
Solicitors for plaintiff:    Duncan Groom Hannon
Counsel for defendants:     Mr A Hilditch
Solicitors for defendants: Ward and Partners

ORDER
Damages awarded.

JUDGE1 MILLHOUSE J The plaintiff was unlucky enough to have two motor car accidents, the first on 13 November 1988 when he was hit from behind, the second on 4 February 1989 when a car coming the other way tried to make a right hand turn across his path and they collided. 2. Liability has been agreed. The plaintiff is to recover 100% of his damages in the first accident and 90% in the second. 3. He was born on 9 April 1943 the only boy in a family of four. They were in poor circumstances. When he left school he was apprenticed in the Railways as a fitter and turner. He stayed on in the Railways for some years, becoming much involved in trades union affairs. Eventually he went to work in the Union movement. By 1988 he was a research officer with the Australian Timber Workers Union, happy in his job which he regarded as the pinnacle of his working career. 4. In 1976 when still with the Railways he had lifted something heavy and hurt his back. He has had intermittent back problems since. In 1978 he had another back injury, a strain in the mid-thoracic area. 5. He was active in sport and was sports injury trainer for Central Districts. He kept himself physically fit. That was before the 1976 back injury. Thereafter he adapted his lifestyle so as to live within his physical limitations. 6. He had married when 18 to a girl of 16. There are three adult children of the marriage. He and his wife gradually drifted apart: the marriage ended in some unhappiness in the early 1980s. Because of the breakup he consulted Dr John Litt the psychiatrist in 1981 and again in 1983 for depression. (When giving evidence the plaintiff had forgotten the visit in 1983 but Dr Litt's cards shew that it was made: the lapse of memory is of no significance.) 7. In 1983 after his marriage ended, he found a new partner, Linda Watson. That relationship lasted for about seven years, ending in 1991. There are some hints in the evidence that it was becoming less close even before the accidents but the plaintiff blames the second accident for the ending. I accept that the accident was the substantial cause of the separation. 8. Both his mother and his sister have had mental problems during their lives but apparently not of great seriousness. I have already mentioned that the plaintiff himself had experienced depression even before the accidents. 9. In the first accident the plaintiff suffered a whiplash injury. It was not serious although the plaintiff must have found it bad enough. He took two days off work and consulted a local doctor, P L Werchon, at the Grange Clinic. 10. The plaintiff complained to Dr Werchon of neck and upper arm stiffness and soreness and soreness of the chest; he had "tense, tender neck muscles (left trapezius muscle), soreness of the upper neck muscles, and restricted flexion and extention (sic) of the neck, and some restriction of rotation of the head. His deltoids and upper arm (triceps) muscles were sore, as were some muscles in his back and chest" (Dr Werchon's letter of 30 March 1989). In the same letter Dr Werchon says, "His pains were settling nicely, and his headaches had gone by early February 1989 ......... The injury certainly meant he suffered considerable discomfort, disability and actual pain over some weeks, at least two and probably much longer. His normal lifestyle was certainly greatly disrupted." 11. I accept that and it gets the plaintiff over the threshold of seven days in s35a(1) of the Wrongs Act. Although Mr Andrew Hilditch for the defendants argued that I should allow nothing for non economic loss, he conceded that on the scale of 60, one might be appropriate. Mr Peter Hannon for the plaintiff was content with that assessment. Counsel told me that the appropriate multiplier pursuant to s35a(1)(b)(ii) is $1 070. I therefore allow $1 070 for the plaintiff's non economic loss arising out of the first accident. Special damages have already been paid. 12. The total damages arising out of the first accident are $ 1 070.00. 13. Would that the assessment of damages from the second accident were so simple] 14. In his letter of 1 June 1990, of the plaintiff's injuries in the second accident Dr Werchon wrote:
    "When I examined him on 6.2.89, he was suffering soreness and
    stiffness in the neck, upper chest and shoulder, headaches, minor
    soft tissue injuries to the right arm and tongue,.......... He
    developed, over the next fortnight, symptoms of dizziness and
    vertigo with posture changes and head movements, to quite a severe
    degree. He also became quite depressed by his symptoms and
    injuries." 15. Those sentences encapsulate the three areas of serious injury which the plaintiff suffered and which even now, more than four years later, have not all completely cleared up - soreness etc of the neck, the vertigo and the depression. The other injuries were minor and healed. The injuries were both physical and mental. They have fed on each other: this has greatly slowed down recovery. The process of recovery is still continuing and will go on for some time yet. 16. The plaintiff's depression became so marked that in late February 1989 he was admitted for five days to the Western Community Hospital "following increased anxiety and distress due to episodes of positional vertigo" (Dr Werchon's letter of 1st June 1990). 17. Although Dr Werchon has seen the plaintiff from time to time, responsibility for his treatment has been undertaken by two other gentlemen - Dr Neville Minnis, the otorhinolaryngologist (a word noted in neither the Macquarie Dictionary nor in Black's Medical Dictionary - I think it means an ear nose and throat man) and Dr Malcolm St James, the psychiatrist. Each gave evidence, as did Dr Werchon, for the plaintiff. The defendants called Mr John Tomich and Dr June Donsworth to match respectively Mr Minnis and Dr St James. Mr Tomich and Dr Donsworth had rather different opinions from those of Mr Minnis and Dr St James. I must say that I lean to the treating medical men and prefer their opinions to those of Mr Tomich and Dr Donsworth unless I say to the contrary on any particular point. 18. Perhaps the plaintiff's injuries and his condition as a result are best set out in a long letter from Dr St James dated 17 June 1991. The letter accords with the plaintiff's and other evidence which I accept. I shall quote from it:-
    "I initially assessed Mr Douglas on (11 May 1989) as a matter of
    urgency given the level of distress he was experiencing ....... I
    would like to state at the outset that Mr Douglas' degree of
    distress has been immense, his ongoing depression and anxiety are
    great, his sense of loss regarding his self image and body image
    and also his loss of potential have been a major blow to him.
    ...... At the time of first presenting Mr Douglas was a forty
    five year old man who was working as a Trade Union official. His
    duties were that of a Research Officer and he also describes
    himself as 'a problem solving negotiator'. ........... Mr
    Douglas described that he had been well prior to 4th February when
    he was involved in a 'traumatic' motor vehicle accident. Mr
    Douglas attributed his current psychological and physical problems
    as being directly related to this accident. .................
    The immediate sequelae of the accident was that Mr Douglas
    experienced 'massive' pain in his shoulders and neck. It would
    appear that this is consistent with a severe hyper-extension and
    flexion injury of the neck and upper body. The sense of
    powerlessness appears to have been reinforced as Mr Douglas was
    taken to the Queen Elizabeth Hospital and after an initial
    assessment was sent home. ............... Over the next three
    to four days Mr Douglas describes himself as being 'in shock'. He
    describes physically shaking and also being in pain from his
    shoulder and neck. Psychologically he felt extremely frustrated
    and angry ....... Mr Douglas was suffering a Post Traumatic
    Stress Disorder which was essentially related to his powerlessness
    and loss of control during the accident, the physical and
    psychological pain that the accident had been responsible for, and
    also his concern for his partner. Physically, there was some
    slow settling of his neck and back pain over the next few days,
    however ten days after the accident Mr Douglas experienced a rapid
    onset of extreme vertigo. During this time he felt extremely
    frightened and essentially was unable to move. At this time he
    felt a marked increase in anxiety and feelings of panic. ......
    Dr Werchon...... admitted him to Western Community Hospital.
    While in hospital Mr Douglas describes that his anxiety level was
    extremely high....... At this time Mr Douglas was on Diazepam 5mg
    three times a day for his anxiety, and Stemetil 5mg three times a
    day for his vertigo. it had been arranged that Mr Douglas undergo
    diagnostic testing for his vertigo and ear problem and this meant
    a cessation of his medication. This led to a rebound of
    increasing anxiety and tension. Once again Mr Douglas was thrust
    into a dependent role and had to gain assistance to travel. The
    diagnostic tests he described as a frightful experience. He
    became extremely fearful and felt that at times he may lose
    consciousness. After the tests he spent a number of days in bed
    unable to eat and feeling once again increasingly anxious and
    described his 'whole body shaking inwardly'.
    He was subsequently seen by Dr Neville Minnis and was told that
    his problem was related to his inner ear. He was prescribed some
    exercises, but at this time Mr Douglas felt that his management
    had become rather piecemeal. He felt that there had been several
    doctors involved and that there was a lack of coordination in his
    management. This is particularly pertinent given Mr Douglas'
    profession and his need for coordination and control. Despite his
    frustration, Mr Douglas attempted the exercises, and wanted "to
    fight as hard as I could" to break through this physical and
    psychological barrier.
    However two weeks before I initially assessed him he awoke and
    felt that he was unable to move his neck and shoulders. Mr
    Douglas thought that this was a result of the exercises that he
    had been doing and this plunged him into a sense of hopelessness.
    He was extremely fearful that his job would be affected, he was
    extremely fearful that this condition would continue indefinitely
    and he was also extremely fearful of an operation on his middle
    ear." 19. On "Initial Assessment" Dr St James found,
    "that Mr Douglas was suffering from an acute Post Traumatic Stress
    disorder. There is a recognisable stressor, the motor vehicle
    accident; Mr Douglas re-experienced the trauma with recurrent and
    intrusive thoughts, and recurrent dreams; and there had been a
    numbing of responsiveness and reduced involvement with the
    external world, with marked decreased interest in his activities.
    He had hyper-alertness, a sleep disturbance, trouble
    concentrating, he had avoided driving the car, and hence there is
    irrefutable evidence of the Post Traumatic Stress Disorder
    diagnosis. I felt that Mr Douglas was concomitantly suffering
    from a Major Depressive Disorder, with the acute precipitant of
    the recent accident. The evidence for this was a marked dysphoric
    mood, anhedonia (inability to experience pleasure), frequent bouts
    of tearfulness, a physiological shift consistent with a major
    depression, including poor appetite, insomnia, occasional
    agitation, loss of libido, loss of energy, feelings of
    worthlessness, diminished concentration and at times a nihilistic
    view of life. At the time also I felt that Mr Douglas was
    suffering from profound anxiety with an increased muscle tension,
    trembling, apprehension, and although not present at the initial
    assessment, it is of note that over the next period of treatment
    with Mr Douglas that he went on to develop major and debilitating
    panic attacks which are consistent with an Anxiety Disorder.
    Clearly these three major diagnostic areas are inter-actional but
    I feel that it is extremely important to emphasise these three
    areas as it will be seen from the later progress that although the
    inter-action remained, the focus changed from time to time where
    one symptom complex became more troublesome than others. It was
    my observation that Mr Douglas had some obsessional traits in his
    personality and the evidence for this is his need to be very much
    in control of his own life and situations around him. These
    personality traits are extremely important in the inter-action
    with his psychological and physical problems. During the accident
    and immediately following he felt extremely out of control. This
    situation was extremely threatening to Mr Douglas and would have
    pre-disposed him to a degree in becoming extremely anxious. The
    major physical problems of his neck and back pain Mr Douglas saw
    as a threat to his body image as he had previously seen himself as
    a fit and active man. The vertigo, however was perhaps the most
    frightening thing for Mr Douglas. When it occurred he felt
    extremely out of control. At the time this raised his anxiety
    level to an almost intolerable degree, and fed into memories of
    the accident, enhancing his Post Traumatic Stress Disorder and
    also his feelings of worthlessness, enhancing feelings of
    depression." 20. Dr St James summed the "Psychiatric Issues" in this way:-
    " As a result of the motor vehicle accident on 4th February 1989,
    Mr Douglas is left with several residual problems. There has been
    partial resolution of his Post Traumatic Stress Disorder. There
    has been an increase in his Anxiety Disorder with panic symptoms.
    There has been a maintenance of his Major Depressive Disorder with
    occasional remissions which leave a picture consistent with a
    Dysthymic Disorder (a chronic low grade unhappiness). It is also
    clear that Mr Douglas' physical and psychological well being are
    inter-linked. The residual and permanent damage to his inner ear
    with its concomitant vertiginous symptoms at times trigger anxiety
    attacks and panic. They also feed the depression. There is
    however a vicious cycle established in that on the occasions when
    Mr Douglas feels more anxious or more depressed, the symptoms of
    vertigo have a greater effect on him due to his diminished coping
    abilities. It would appear that there is also a residual problem
    with his neck pain, shoulder pain and back pain and this also fits
    in with the same cycle of interaction between the physiological
    and the psychological.
    The main process psychologically that Mr Douglas has been involved
    with is that of a grieving process. He has lost his physical
    health and fitness, his psychological health, his identity as a
    working, fit and sexual man, the quality of his relationship, his
    hopes and dreams for the future, and his general enjoyment in
    daily life. This grieving process will need to continue as both
    the physical and psychological conditions appear to have
    stabilized leaving Mr Douglas as essentially an invalid." 21. I have quoted at length from Dr St James. I should also refer to Mr Minnis. At about the same time as Dr St James wrote, Mr Minnis said (in a letter of 18 May 1991):-
    " Mr. Douglas has had a very complex problem which seems to have
    dated back to when he had his vehicular accident in February,
    1989. When I saw him, initially, he had vertigo which was
    aggravated by physiotherapy. Investigations confirmed the
    presence of a round window fistula which I eventually repaired in
    December, 1989. The reason for deferring surgery for such a long
    time was because he experienced a virtual mental breakdown
    following the injury. He also had stress in his private and
    professional life which compounded the effects of his injuries
    sustained as a result of the vehicular accident. Mr. Douglas, I
    believe, is very keen to get back to work and, in fact, I think he
    badly needs to resume some form of occupation for his own mental
    health and feeling of self-worth. Unfortunately, he cannot cope
    with the stress that he had in his previous employment but I would
    highly recommend that every effort is made to rehabilitate him in
    some alternative work environment. I might add that he has been
    through Alfreda Rehabilitation Agency in Adelaide but nothing
    worthwhile has really come out of this rehabilitation." 22. The two letters shew how intertwined were the plaintiff's physical and mental problems. 23. At the time of Mr Minnis' letter the plaintiff had had only one ear operation. Since then he has had two more, on the 21 November 1991 and 12 March 1992. The vertigo has, as a result, all but disappeared. In his latest report, the 2nd February 1993, Mr Minnis wrote:-
    " I saw him on 16th November 1992 when he told me that stress
    seemed to be interfering greatly with his capacity to work and the
    stress awaiting for the outcome of his trial was making things a
    lot worse. At that time he mentioned his property settlement
    (with Linda Watson from whom he has parted) plus the pending court
    case regarding his accident. He complained of feeling lightheaded
    and not stable. He did not have the positional vertigo that he
    had prior to the operation of his fistula. I felt that if the
    stress was removed from Mr Douglas' life that there would be every
    chance he would be able to cope with his balance problem a lot
    better. The plan I suggested to Mr Douglas would be to get this
    court case settled and then reassess the balance problem a month
    or so after he had had the court case settled. If there was any
    residual problems then I think that referral to Professor Gibson
    in Sydney who is probably Australia's national authority on
    giddiness having access to a special rotational chair in Sydney
    could possibly throw further light on Mr Douglas' problem. I do
    not think that Professor Gibson would be able to add much more as
    far as therapy is concerned but I think the visit to Professor
    Gibson in itself could prove therapeutic because then Mr Douglas
    would know that everything that could be done has been done. Any
    other residual problem I then think he would be able to accept and
    live with." 24. For completeness I refer also to the last report from Dr Werchon, 12 March 1993:-
    " ..... the medical condition of Mr. Douglas is generally much
    worse overall than at the time of the last report in 1990,
    unfortunately. ........ When I last saw him on 28.9.92, he had
    back pain problems, for which he sought physiotherapy help, but
    this had exacerbated the pain, and he was becoming depressed and
    frustrated by his persisting problems. He was unable to jog to

    keep fit, garden, put out the garbage, without severe pain ensuing
    as a result, and he had trouble travelling in cars and getting in
    and out of cars. He was using Lexotan 18mg daily on advice of Dr.
    St. James, his psychiatrist, at that stage. Life was very
    restricted. ..........In reality, he still seems to be suffering
    quite a bit with disabling symptoms some four years after his last
    motor vehicle accident. His main problem is the vertigo, and all
    potential rests with the ability to overcome this." 25. I have quoted from these three medical men's reports rather than from the evidence because the extracts I have used describe the plaintiff's condition from time to time as I believe, from the reports and from the evidence, it to have been. I prefer what I have set out to any other evidence which may be to the contrary. 26. Having canvassed his medical condition as a result of the second accident I should next say something about his subsequent work history. He could not go back to work for some time. Even then he could work only part time, despite what I find to have been his best efforts. He went back to work at the Union on 3 July 1989 and kept on until 1 December 1989. He could not work at the same intensity as he had before. The Union was generous to him and paid him his full wages on the understanding (which I believe the plaintiff will honour) that he repay that part of his remuneration to which strictly he was not entitled, out of the damages awarded in this action. In this way he used up all his sick leave and annual leave and the anticipated long service leave to which he would have become entitled once he had worked for the Union for seven years (he had been there about five years in February 1989). 27. Not being able to work full time and with a full load and subsequently having to resign in August 1990 as a result, greatly upset and depressed the plaintiff. 28. The only other work he has done has been for the United Trades and Labour Council on contract between April and September 1992: on this he worked at his own pace and with physical aids. Before he began the contract Mr Minnis wrote to Mr John Lesses, Secretary, UTLC:-
    " I am writing to you on behalf of Mr Douglas who is commencing
    work on a part time basis next week starting Monday 13th April.
    Mr Douglas, as you know, has had a great deal of medical problems
    the main being bilateral perilymph fistulae following a vehicle
    accident. He also has had a very severe whiplash injury. It
    would be desirable if Mr Douglas could work on a part time basis
    for the first month at the times already suggested from 10am to
    2.30 pm with a lunch break. I would then suggest that after a
    month he perhaps gradually increases his work commitment at his
    pace. It would be ideal too if Mr Douglas could be provided with
    a lectern or a draftsman's desk where the reading surface is
    sloping. Mr Douglas cannot read with a flexed neck as this does
    tend to interfere with his vision because of irritation from his
    whiplash injury. If Mr Douglas works within these confinements I
    think he will have no problem meeting his work commitments." 29. Even this proved to be too optimistic. The plaintiff could not finish his commitment: he could not cope and gave up in September three or so weeks before the contract was due to end. 30. Mr Hilditch argued strongly that this early termination was not due to the accident in February 1989 but to the much earlier back injury in 1976. As part of his contract duties for the UTLC the plaintiff had to go to Mildura. He travelled as a passenger in a motorcar: the ride affected his back. He renewed his claim on the Railways arising out of the 1976 injury. I accept that the back problem was part of the reason for his stopping work but from the plaintiff's evidence I think it was mainly because he just could not cope due to his disabilities caused in February 1989: he was becoming ill: he had constant headaches, nausea, irritability. 31. The plaintiff has not worked again since nor would I have expected that he could. Mr Hilditch strongly challenged the plaintiff's claim for moneys which the Union paid to him to make up his full wage when he was working part-time. He argued that the plaintiff was under no obligation to repay the moneys to the Union and if I were to include them in the assessment the plaintiff would be recompensed twice. 32. I reject Mr Hilditch's argument. First, I believe the plaintiff will repay: he is an honest, genuine man likely to keep his word. Secondly, looking at it on a materialistic level, his best chance of getting a job later is with the union: I doubt if he would want to jeopardise his chances of future employment by short changing his future employer] The amount in dispute is $6 543.44 made up as follows:- sick leave $1 771.04 annual leave 1 251.00 advance on long service leave 3 521.40 The evidence is that had the plaintiff not used up his sick leave this would have been paid to him on the termination of his employment. Therefore he has suffered a loss. Likewise with annual leave. 33. With regard to the advance on long service leave, strictly as he had been with the Union only five years he was entitled to nothing: no pro rata long service leave. He would have become entitled only after seven years. This amount of $3 521.40 was in the nature of an advance of wages even though credited against future entitlement to long service leave. 34. During argument I found in Luntz ("Assessment of Damages", 2nd Edition) a paragraph covering the point. It is 8.3.17 at pp366-367. The last sentence is, "Therefore, conditional payment of wages is to be encouraged by giving legal effect to the parties' intention." 35. I shall include these amounts in assessing past economic loss but make some allowance for contingencies, such as, for example, with sick leave, the plaintiff having been away from work for some other reason. (I notice though that he hardly ever took a day off). 36. The figures for past economic loss were agreed (but not of course the defendant's liability to pay) at $73 092.74. I shall allow $70 000.00. What of the plaintiff's present condition and of the future? 37. The plaintiff described in evidence his present condition:-
    " My position is that I still suffer an extreme disability,
    inasmuch as that I am on medication the whole time, and I wish I
    wasn't; that worries me. But that medication enables me to do
    some things, such as walking and cooking my meals, and so forth.
    But the actual physical things that I experience are that I am
    able to - like, I have constant imbalance all the time, and that
    increases with whatever I may be doing at the time. Sometimes, if
    I am quite calm and things are manageable, the imbalance is
    manageable. If it's not, then it becomes an absolutely
    intolerable condition for me to deal with. I'm unable to read
    very much; I'm only able to read for a very short period of time.
    I have considerable difficulty in writing. For example, if I
    write a letter, I usually take two days to write two pages of a
    letter. I have very chronic restrictions on my social
    life........
    Q. .....You have told us about having some back problems before
    the accident. ...... that might have restricted you in some
    physical activities.
    A. Yes.
    Q. Can you tell the court the difference; the things you now
    can't do that you believe follow from the motor vehicle accident
    that you could do before.
    A. The back injury is something that restricted me in doing many
    things, as I pointed out earlier in the evidence, but I was able,
    in most cases, to cope with it quite well and get on with my life.
    But the injuries that have occurred since the accident, I can
    honestly say that there has been no further aggravation of my back
    - low back, from the injury, so I don't see there has been any
    significant difference in my low back from the state of before the
    injury or after. But where I'm running into trouble, of course,
    is that the things that I can't do now is that I can't work. That
    is one thing, I can't work: where before I was always able to
    work, I can't work now, because of all these other disabilities,
    and that is the inability to read, the inability to write, the
    inability to be able to be in a room with a large number of
    people, the inability to be able to just scan, the inability to -
    the massive difficulty I have in communicating in a large area, or
    noise, or - " 38. The plaintiff is genuine. I believe what he has told me and I accept his evidence. Out of deference however, to an argument which Mr Hilditch put strongly I should say something more about my impression of the plaintiff. One of his complaints has been of neck pain. In cross-examination Mr Minnis said that "neck stiffness" ceased to be a prominent feature in the first six months. (Yet Mr Minnis did mention the neck problem when writing to Mr Lesses in April 1992). When he gave evidence the plaintiff demonstrated considerable restriction of movement of his neck to the left and right. Mr Hilditch argued that this shewed the plaintiff was exaggerating and was therefore not to be relied upon. Perhaps the plaintiff did exaggerate the extent of his neck restriction but even if he did, that does not alter my over-all impression that he is genuine and his evidence reliable. What of the future? Here I am guided by the opinions of Mr Minnis and of Dr St James. 39. This is what Mr Minnis said in evidence:-
    Q. From the point of view of your speciality, is his condition
    now stable, or will it ever get any better, or what.
    A. It would appear to be stable, but patients with perilymph
    fistula can re-rupture, .......Yes, I would say he is stable now,
    as far as -
    Q. What would his continuing disability, from your speciality,
    be.
    A. Without going outside the terms of reference, the eyes and the
    ears are connected with balance through the mid brain. So he will
    have difficulty scanning print, and we test optokinetic nystagmus
    this way. These patients, they go to a supermarket, and they look
    up and down the supermarket shelves, their eyes are scanning the
    shelves, and they can get giddy. This can happen to ordinary
    people. But with this sort of labrynthine disturbance, it can be
    a lot, lot worse. So, reading print, which is like scanning food
    on a supermarket shelf, it can have the same sort of problem. So
    somebody who relies on reading for their living is going to be in
    an awkward position. We, actually, did get Mr Douglas back to
    work, and I did write to the person involved, and we did set up a
    special lectern for him so he could have - ....... And that
    seemed to work. But, I think, as far as I can see, he is going to
    have problems with anything - any skill that requires balance and
    co-ordination; that is, his visual co-ordination.
    Q. Any skill requiring balance.
    A. Yes.
    Q. And the problem with visual co-ordination.
    A. Being print, yes.
    Q. This difficulty scanning print, would that mean that he could
    only read for a short time, and then have to stop.
    A. That would be correct, yes. And it would also depend on the
    rate he could read.
    Q. He would be slower.
    A. He would be slower, yes." 40. As for Dr St James, when he began his evidence-in-chief, I, having already read his reports, asked him about the future. From his answers I extract his opinion:-
    " A. I think Mr Douglas is extremely determined to overcome
    these disabilities or at least minimise them, as can be seen by
    his efforts to go back to work last year. Despite the
    difficulties in going back to work he did do it on a limited
    basis, and even though it was a great struggle for him he worked
    four or five hours a day and that I think is, I suppose, a
    testimony to his determination. He did finish that job early
    because of the stress it caused him but I think that indicates he
    is an extremely determined person and when confronted with these,
    I suppose, challenges to his ability he will have a go. He may
    not be able to overcome it totally he will have a go. ..... I
    would say things are - in a shade of grey at the moment.
    Q. Likely to improve further.
    A. It is difficult to say, generally I would say, generally, yes,
    they are likely to improve over time. Given, for a start, the
    correct environment within the work setting and also I think
    on-going therapy, especially in the relationship area. He may
    well be able to change some of these features, some of these
    factors.
    Q. When you say 'the relationship area' you say he may be able to
    form another liaison which you say he can't at the moment.
    A. I am saying that at the moment there is still a marked
    inability to enjoy a meaningful relationship. In the past six
    months or so he has tried to form an intimate relationship and the
    physical and psychological problems have interceded and made it
    extremely difficult for him to go on with that. So once again
    given the right person in the right circumstance it may well be
    easier for him in time but that is going to take some time and a
    great deal of effort I think.
    Q. Do you consider that he is likely ever fully to recover.
    A. I do not think he will return to his premorbid state, no.
    Q. How long do you think it will be before he gets as far as he
    is likely to get to go in recovery.
    A. It is difficult to be definitive about that. I say he is
    probably looking at probably two to five years, anywhere within
    that range of fairly constant determined effort to maximise his
    functional ability, and then I think he will probably plateau out.
    Q. The completion of this litigation mightn't have any effect.
    A. I think it is going to be a great relief to Mr Douglas.
    .................I think in general terms, yes, there is going to
    be an improvement, but the improvement is going to be over time.
    It is not going to be an instant thing just because the litigation
    finishes.
    Q. In your estimate of two to five yeas you assume the completion
    of these proceedings.
    A. Yes. .......
    Q. With regard to your prognosis for the future you referred to a
    plateauing out after a period fo two to five years. I assume you
    are saying even after that period of two to five years there will
    still be problems with anxiety or depression experienced by Mr
    Douglas.
    A. Yes, it is my opinion he will still probably be struggling at
    some residual level with the anxiety and the depression. In part
    filled by lack of resolution of the physical problems, the
    continuing vertigo.
    Q. Will that continue to, in your opinion, impact upon his
    ability to work.
    A. I think it impacts upon his ability. Yes, it does impact upon
    his ability to work. He may well, after that plateau is reached,
    be able to do part time work or work in a lower stress area where
    the physical symptoms are not a problem, where there is not rapid
    had movements or a lot of reading and writing." 41. There is one matter on which Mr Minnis and Mr Tomich agree. The suggestion came from the latter: the former agreed to it with some reservation but agreed because it was tried in 1990, not very successfully. It is that the plaintiff should have further "labyrinthine exercises" - I understand this to be eye physiotherapy - with Susan Hillier after he has been assessed in Sydney at the Prince Alfred Hospital by Professor Gibson. (There is a reference to Professor Gibson in Mr Minnis' report of 2 February 1993 which I have earlier quoted.) 42. The assessment may not lead to any further treatment but even if it does not it should satisfy the plaintiff that everything which can be done is being done for him. Mr Tomich especially is optimistic that within a few months of the physiotherapy the plaintiff should be able to get back to reading and writing and his previous work. I think this may be over optimistic but I bear in mind that Dr St James in cross-examination did say that his estimate of "plateauing" in two to five years may be too long if the plaintiff recovers further from his physical problems. The cost of the eye physiotherapy is agreed by counsel at $450.00. 43. There are now only a few other matters to canvass before I come to the assessment. 44. After the second accident the plaintiff's mother and sister and Linda Watson gave him help and support. Because of s35a(1)(g)(i) of the Wrongs Act I can make no allowance for the sister's help. That is a pity as it seems to have been greater in the earlier days than that of either his mother or of Miss Watson. Pursuant to s35a(1)(h) I can allow no more under this head than four times State average weekly earnings at the relevant time which counsel agree was $1 976.80. I shall allow $500. Since the accident the plaintiff has not been able to do all the housework and work in the garden which he had previously: he could not for example vacuum or clean wet areas or the windows. Before the accident he had shared these jobs. Since the accident he has had some domestic help for a few hours a week. The cost has been only $9.00 per week, a total up to now of about $900. I shall assume that it will be, say, three years before he can go without this help altogether and allow $1 500 in all. 45. As for the gardening, three lads from down the street have been coming in once a week and getting $5.00. For the past and for a little time into the future I shall allow $750.00. 46. Finally there are medical expenses. Ninety percent of the special damages to date is agreed at $25 823.48. I do not have a list but assume within the specials are past medical expenses. I now wish I had the list: it would help in calculating what I should allow for the future. 47. I have decided to work on Dr St James' estimate that it will be two to five years before the plaintiff recovers sufficiently to be able to work. (I may say that I think Dr St James is a little pessimistic: my own view is that within five years the plaintiff will be able to work full time.) Even after he can he will have disabilities: but he will not, to use Dr St James' phrase "return to his premorbid state." 48. I shall assume that he will be fit for some work within at the most the next two years and for full time work within five years. It will be a gradual process. The assessment may be on the generous side for the plaintiff but I hesitate to make it less in light of Dr James' opinion. It can anyway only be an estimate. 49. Fortunately the union would be, I take it from the evidence of Mr T W Smith, the secretary, happy to have him back. Undoubtedly this is his best chance of a job - and a very good chance, too. 50. Having come to that conclusion I now am able to assess future loss of earning capacity and future medical expenses. 51. First, loss of earning capacity. Had the plaintiff remained with the union, as I believe he would have but for the accident, his present weekly rate of pay, net, would be $544. Using that as a starting point and assuming two more years off work followed by three of part time increasing to full time and allowing for contingencies I assess future loss of earning capacity at $70 000. 52. I realise though that there is one matter relating to future medical expenses which I have not yet canvassed. I must do so before I can work out the expenses. I have already made it clear that I have preferred Dr St James opinions to those of Dr Donsworth. Dr St James has been the treating psychiatrist but besides that I thought that Dr Donsworth put altogether too much emphasis on the plaintiff's quick recovery following completion of this litigation. I prefer Dr St James' view that while it will help the process of recovery it will not be nearly as decisive as Dr Donsworth believes. However Dr Donsworth also believes very strongly that the plaintiff should not have been kept on the drug Lexotan as long as he has, certainly should now be taken off it. Unfortunately Dr St James was not directly asked about this but the implication at least, of his evidence, is that the plaintiff should give up its use: Dr St James has already reduced his dose. 53. For the purpose of getting the plaintiff off Lexotan he will have to go to hospital. Counsel are agreed that hospital and medical expenses for this purpose should be allowed at $4 000 in all. I shall do that. 54. Counsel agreed past medical expenses at $2 000, $500 per year. I use that as a yard stick for the future, remembering particularly that after, I expect, the next few months there will be no Lexotan to buy. I allow $1 500. 55. To go over to Sydney for the assessment by Professor Gibson will mean further expense, probably $1 000 plus fares and accommodation. I allow $2 500 in all. 56. I also allow $450.00 for eye exercises to be administered by Miss Susan Hillier. Both sides agreed that the plaintiff should have this treatment. 57. It will be some years before the plaintiff will no longer need to consult Dr St James. His charges from the end of March 1989 to late March 1993 come to $13 862: the AMA recommended rate would have made the charge $12 233.50. For the future I should pay more attention to the AMA than to Dr St James' actual charges. The evidence is that as time goes by the consultations will become less frequent, the bulk of the expense will be early, calling for some discount. I accept that even after the plaintiff is back full time at work that he will probably need some support from Dr St James. I allow $7 500. 58. The total for future medical etc expenses is $15 950. I shall work out the damages for non-economic loss using 20 as the multiplier. Counsel agreed that the appropriate figure is $1150. That gives $23 000.00 Well now, I am able to set out the damages I have assessed under the various heads: non-economic loss $23 000.00 past loss of economic capacity 70 000.00 future loss of economic capacity 70 000.00 gratuitous services 500.00 housekeeping 1 500.00 gardening 750.00 future medical etc expenses 15 950.00 Total: $181 700.00 The plaintiff is to receive only 90% of this sum, that is, $163 530. To it I must add the agreed 90% of special damages, $25 823.48, making $189 353.00. Finally to this I add $1 070.00 being the assessed damages for non economic loss arising out of the first accident. The grand total is $190 423.48. 59. I shall hear counsel first as to interest, if any, to be allowed and then as to the order I should make.