Mahfouz v John Fairfax Group P/L

[2001] NSWSC 403

CITATION:	Mahfouz v John Fairfax Group P/L [2001] NSWSC 403
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20304/2000
HEARING DATE(S):	26, 27, 28 & 29 March 2001
JUDGMENT DATE:	24 May 2001
PARTIES :	Moussa Mahfouz (Plaintiff) John Fairfax Group Pty Limited (Defendant)
JUDGMENT OF:	Master Harrison

COUNSEL :	Mr M Cranitch SC with Mr M Thompson (Plaintiff) Mr J Burn (Defendant)
SOLICITORS:	Milicevic Solicitors (Plaintiff) Pieterse & Pieterse (Defendant)
CATCHWORDS:	Personal injury - damages
LEGISLATION CITED:	Occupational Health and Safety Act Workers Compensation Act 1987 Supreme Court Act
CASES CITED:	Cook v Cook (1986) 162 CLR 376 Wyong Shire Council v Shirt (1980) 146 CLR 40 Janesch v Coffey (1984) 155 CLR 549 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Froom v Butcher [1976] QB 286 Gunning v Fellows (1997) 25 MVR 97 Pennington v Norris (1956) 96 CLR 10 Sungravure Pty Limited v Meani (1964) 110 CLR 24 Jefferies v Roads & Traffic Authority of NSW (NSWCA unreported 28 November 1997) State Government Insurance v Oakley (1990) Aust Tort Reports 81-003 Sullivan v Gordon (1998-99) 47 NSWLR 319 Van Gervan v Fenton (1992) 175 CLR 327 Malec v J C Hutton Pty Limited (1990) 169 CLR 638
DECISION:	I1) The defendant is to pay to the plaintiff the sum of $811,085.13; (2) The defendant is to pay the plaintiff's costs as assessed or agreed.

33

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 24 MAY 2001

20304/2000 - MOUSSA MAHFOUZ v JOHN FAIRFAX
GROUP PTY LIMITED

JUDGMENT (Personal injury; damages)

1   MASTER: The plaintiff sues the defendant his employer for damages for personal injuries sustained by him in three accidents, namely on 23 February 1995 when he was lifting bundles of newspapers over his head; secondly, on 3 June 1995 when he was pushing a pallet; and thirdly, when he tripped down a ladder. In all three accidents the plaintiff suffered injuries to his back and neck. Prior to 23 February 1995 the plaintiff had three prior accidents while in the employ of the defendant. The plaintiff alleges that it was the fifth and sixth accidents that were the significant ones. The defendant denies liability and alleges that if liability against it is established the damages to which the plaintiff would otherwise be entitled ought to be reduced by reason of the plaintiff’s own contributory negligence in relation to the sixth accident only. The matter is further complicated because shortly after the sixth accident the plaintiff was involved in a motor vehicle accident and suffered further injuries to his back and neck. The plaintiff alleges that the defendant was negligent.

2   I carefully observed the plaintiff while he was giving evidence and being cross examined and formed the view that he was a truthful witness. He did not give any inconsistent evidence. When he spoke of the breakdown of his marriage he became visibly upset. After sitting in the witness box for a while he became noticeably uncomfortable and had to shift his position. At times he had to stand.

(1) Background

3   The plaintiff was born on 8 January 1961. He is currently 40 years of age. He was born in Lebanon. The plaintiff left school in 1982/83 with the equivalent of the New South Wales Year 12 HSC. From 1984 until 1987 he was employed by the Tripoli customs office in a clerical position for three years but it became difficult for him to carry out his duties due to the civil war. The plaintiff commenced a law degree at the University of Lebanon but was only able to complete approximately 1½ years of this course. This was also due to civil war.

4   In September 1992 the plaintiff married his wife Donia in Lebanon. They have two children. On 18 October 1987 the plaintiff arrived in Australia. On 25 November 1987 he obtained employment as a furnace operator/forklift driver with Simsmetal. He commenced employment with the defendant on 5 October 1988 as a mechanical insert operator and publishing room publisher at the Broadway premises. He was in good physical and physiological health. The plaintiff had not had any prior accidents until 1992. During the plaintiff’s employment with the defendant he was diagnosed as suffering from tinnitus but this did not affect his work performance.

5   From August 1995 the plaintiff worked at the defendant’s Chullora premises. Upon the commencement of employment the plaintiff undertook a one to two week course which involved learning how the machinery worked. He was never given instruction or training as to the correct manner to lift the pallets and bundles of newspapers. The plaintiff always worked the night shift from 10.00 pm until 6.00 am. Friday and Saturdays nights were the busiest. He worked a double shift, afternoon and night shift from 3.00 pm until the paper was printed.

6   The plaintiff’s duties included operating machinery, working on the dock, working in the bull ring parcelling up newspapers for distribution, carrying bundles of newspapers, the operation of manual and electric pallet jacks, loading trolleys with newspapers, cleaning, moving discarded newspapers, operation of shrink pack machine, operation of manual strapping machines, “throw out” duties, programming “operation stackers”, minor machinery repairs, replacing paper reels, inserting, truck dispatch office duties, answering telephones, filing, photocopying, faxing and organising delivery runs. The “bull ring” is a large table upon which the bundles of papers are placed awaiting distribution. Each day there was about 40 to 50 bundles placed on the “bull ring”. Each bundle was approximately 30 centimetres high and weighed 17 kilograms.

7   As previously stated the plaintiff had seven accidents in all. He had three prior accidents which are not the subject of these proceedings. It is the injuries that arose from accidents which occurred on 28 February 1995, 3 June 1995 and 20 October 1995 for which damages are claimed in these proceedings. On 15 January 1996 the plaintiff was involved in a motor vehicle accident and suffered further injury. The main issue in this case is to what extent did the injuries he suffered in the motor vehicle accident effect the injuries caused by the latter three work accidents. All accidents involved injuries to his neck and back.

(2) Non-compensable injuries

(i) First back injury - 1992

8   In 1992 the plaintiff suffered his first back injury when he was lifting a pallet at work. He fell to the floor due to the intensity of pain which was radiating from his neck to the lumbar region and into the left buttock. The plaintiff continued working the rest of the shift with the back pain. He went to see the sister at work. He took tablets and the pain in his back subsided within a day or so. He did not take time off work and continued with his normal physically strenuous job. Between at least 1992 and 1995, Dr Kanawati was the plaintiff’s general practitioner. Dr Kanawati reported (8 October 1995) that in 1992 the plaintiff had some minor accidents following which he developed low back pain but continued to work.

(ii) Second back injury - February 1993

9   On 8 February 1993 the plaintiff suffered a second injury to his back when lifting a bundle of papers in the publishing room. He developed low back pain. He went to see the sister at work, was given some cream. He did not take any time off work.

(iii) Third back injury - 30 July 1994

10   On 30 July 1994 the plaintiff suffered a third injury to his back when lifting a bundle of papers on the dock in front of his chest, he twisted his back and developed severe low back pain, dorsal spinal pain and neck pain. He went to see the sister and was given some cream. He had no time off work. He went home took a hot shower, some tablets and rested all day in bed to make himself ready for the night shift. He went back to work for the night shift. I find that these three injuries were back strains which did not cause any permanent injuries. These injuries do not form part of the plaintiff’s claim in these proceedings.

11   Prior to December 1995 Mr Habib (the plaintiff’s brother-in-law) and the plaintiff’s wife and the plaintiff described the plaintiff as being a family oriented man who enjoyed his work. The plaintiff considered himself to be a hard worker and took pride in that attribute. He had a good sense of humour, liked to socialise and was fun to be around. Mr Habib described the plaintiff’s marriage as a very happy one and as being perfect.

(3) Liability in these proceedings

(iv) Fourth back injury - 28 February 1995

12   The fourth to sixth accidents are the subject of these proceedings. On 28 February 1995 the plaintiff suffered his fourth back injury when he was lifting a bundle of papers with both arms stretched above his head, and developed low back and neck pain. The plaintiff had to clear a jam in the chute on the loading dock. This was not an uncommon event. The plaintiff was obliged to unload five to six bundles from the chute onto the floor at speed. Each bundle weighed between 15-17 kilograms. As there were bundles continuously going down the chute and the driver was taking the bundles from the end of the chute, the plaintiff had to load the bundles back onto the chute from a distance requiring him to load them over his head. A photograph Ex C reproduced below show the loading dock and a chute. The plaintiff had already picked up three or four bundles When he picked up the next bundle over his head he felt a “bad pain” at the base of his neck at the centre line between his shoulders. The worst pain he experienced was across his lower back at the belt line. He also experienced pain radiating down his left leg. He consulted the sister at work and went home. This accident is referred to as the “bundle of papers” accident.

Ex C

13   On 1 March 1995 the plaintiff consulted Dr Kanawati who referred the plaintiff for x-ray and CT scan of the lumbar spine. The plaintiff took Feldene tablets but they did not help with the pain. The plaintiff completed a claim form and the employer has made a report of the injuries (Ex J). The report is consistent with the plaintiff’s account of the accident. On 6 March 1995 Dr Kanawati prescribed physiotherapy for the plaintiff and referred him to Dr Guirgis, an orthopaedic surgeon. Dr Guirgis diagnosed the plaintiff as suffering from central disco protrusion at L3/4 and L4/5 level.

14   Dr Guirgis also conducted tests to determine the cause of nerve pain. The results revealed that there was a nerve entrapment attributable to a bulging disc. The CT scan disclosed that there had been some degenerative changes to the plaintiff’s back and neck which were consistent with the prior heavy labour that the plaintiff had undertaken. These changes had taken place to the February 1995 accident but were asymptomatic. The physiotherapy settled down the pain. For the period from March 1995 until June 1995 the plaintiff took his holiday leave so as not to jeopardise his job prospects. When the plaintiff returned to work he was still experiencing some pain and discomfort in his back. This accords with Dr Guirgis’ recollection (t 72.50). From June 1995 Dr Guirgis certified him fit for full duties. From this time onwards the plaintiff has experienced headaches.

15   The defendant submitted that because the plaintiff pushed the pallet its weight was not relevant factor that caused the accident. The defendant also submitted that other workers managed to carry out the task without so any risk was not foreseeable risk. The defendant did not submit that the plaintiff’s damages in relation to this accident should be reduced for contributory negligence.

16   Both parties tendered expert engineering reports. The plaintiff relied upon the reports of Mr Harry Burn dated 24 March 1998, 18 July 2000 and 24 July 2000 (Ex G). The defendant relied upon the reports of Patrick Donohoe of Unisearch dated 8 June 1999 and 21 December 1999 (Exs 1 and 2). Mr Burn stated that the bundles of newspapers generally weighed in the order of 16-20 kilograms (as previously stated the plaintiff stated that the bundles weighed 17 kilograms) and while for a single lift are within the lifting capacity of 90% of the male workforce. According to Mr Burn because the plaintiff is relatively short the repetitive work over a period of time required that the working load be reduced.

17   Mr Burn referred to the paper “Back Injuries at Work” produced by the National Health and Medical Research Council which indicated that for bundles that are handled at the rate of one every 10-15 seconds, the maximum safe working load should be reduced to 50% or 9 kilograms. Mr Burns was of the opinion that the workload would have been excessive and would lead directly to spinal injury.

18   Mr Donohoe stated that when the plaintiff was required to throw bundles over his head, the likely postural effects and stance exhibited by the plaintiff would render the task unsafe and would quite likely to lead to injury. Mr Donohoe stated that the task of throwing bundles over his head deserved, at the very least, a risk assessment. According to Mr Donohoe it would have been good safety practice to have a procedure in place to formulate a system of work and instructions to employees in the event of a breakdown in any item of plant and equipment.

19   The employer owes a duty of care to its employees. The duty of care once established, is to take reasonable care to avoid a reasonably foreseeable and real risk of injury. What constitutes reasonable care is measured by the objective and impersonal standard of the reasonable man - see Cook v Cook (1986) 162 CLR 376. The risk of injury is both foreseeable and real if it is of a kind that would be sustained by a member of the class of which the plaintiff is a part and is not far-fetched or fanciful irrespective of its likelihood as a probability (Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47; Janesch v Coffey (1984) 155 CLR 549 at 581; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 50). Both experts stated that the repetitive lifting of the bundles of newspapers was unsafe and would lead to injury. It is my view it was foreseeable that requiring the plaintiff to engage in repetitive and constant manual lifting of newspapers would lead him to suffer back and neck injuries. As a response to the risk the employer could have required the plaintiff to lift the bundles at a slower pace or to have a procedure in place to formulate a system of work and instructions to employees in the event of a breakdown in any item of plant and equipment. It is my view that the defendant breached its duty of care it owed to the plaintiff and was negligent. As a result of the defendant’s negligence the plaintiff suffered injury to his neck and back.

(v) Fifth injury - 3 June 1995

20   When the plaintiff returned to work at the beginning of June he told Mr Tony Jay, his supervisor, that he felt pain in his back and requested to change his job. He was told that “as everyone had a problem” it was not possible and there were not any light duties available. He also spoke to Tom McGarry and Jeff Wallace. Jeff Wallace referred him back to Tony Jay. The result was that the plaintiff returned to his normal physically strenuous job.

21   On 3 June 1995 the plaintiff suffered a fifth injury to his back. There were paper inserts which were stacked on about four to five pallets. The inserts are loose leaf advertisements that are placed within each newspaper. Another pallet was placed on top of the inserts. That meant that the top pallet was about chest height. The plaintiff leant forward to reach up with his arms to tip the top pallet which weighed 45 kilograms off the pile of inserts. When he was moving the pallet to access inserts he experienced dorsal spinal pain and low back pain. The pain caused him to double over. He could not move. This is referred to as the “handling of pallet” accident.

22   The defendant submitted that the weight of the bundles was not excessive, they were commonly handled and the strain above the employee’s shoulders was manageable and according to the defendant there was no reason to foresee the risk. The defendant did not submit that there should be any reduction for contributory negligence in relation to this accident.

23   Mr Burn an engineer stated that in regard to the accident and injuries suffered on 3 June 1995, the average weight of a pallet was about 60 kilograms. The plaintiff estimated the weight of a pallet at 47 kilograms. Depending on where the plaintiff lifted the pallet and whether in fact the plaintiff had to carry the full load or not, would determine the actual load applied to his spine. Mr Burn stated that there were two major problems in this regard. The expert assumed that the plaintiff could lift the pallet by one edge only and the lifting load would be about 30 kilograms. The plaintiff did not lift the pallet but tipped it off the inserts at about chest level. Nevertheless, a push would move the load progressively away from his body thus increasing the distance between the plaintiff’s spine and the centre of gravity of the pallet. This would place strain on his already vulnerable back. Both these factors have a significant danger associated with them.

24   The employer had already been informed that the plaintiff was experiencing difficulties with his back and had requested light duties. The defendant knew the plaintiff had a vulnerable neck and back. Nevertheless, it still required the plaintiff to continue to perform heavy manual work. It was foreseeable that if the plaintiff had to continually move his body and being required to push pallets it would place further strain on his back and neck and cause further back and neck injuries. As a response to the risk, the employer could have requested another employee to help the plaintiff remove the pallet or train the plaintiff in the correct way to move heavy objects. The defendant breached the duty of care it owed to the plaintiff and was negligent. At the time the plaintiff reported this injury to his supervisor. The plaintiff was off work for approximately one month.

25   After this accident on 3 June 1995, the plaintiff never made a complete recovery. On 5 June 1995 the plaintiff attended Dr Kanawati who referred him to physiotherapy and Dr Guirgis. He certified the plaintiff unfit for work from 4 June until 6 June 1995. On 6 June 1995 the plaintiff attended the emergency department of Bankstown hospital. He was prescribed bed rest and panadeine forte. He had developed dysaesthesia spreading from the left elbow down to his hand and left little and ring fingers. This is consistent with C7 nerve root damage (t 73).

26   From 3 June 1995 the plaintiff underwent physiotherapy three to five times per week which involved heat massage, stretching and manipulation. He experienced constant pain in his neck and shoulders with pain radiating down from his shoulders to his elbows but nevertheless continued to work. He and his family enjoyed the lifestyle that his income provided. The plaintiff was reluctant to jeopardise his job in any way.

27   Each day towards the end of the shift he would experience an increase in the pain in the same areas described above. He would go home from work have a shower, take pills and go to sleep in order to be able to benefit from work the next day. He continued attending physiotherapy three to five times per week. The physiotherapy helped a little bit. In August 1995 to keep the plaintiff on his feet. Dr Guirgis prescribed the plaintiff while in hospital very high doses of steroids for eight days to help alleviate the acute pain. This was not an attempt to cure the cause of the pain.

(vi) Sixth back injury - 20 October 1995

28   On 20 October 1995 the plaintiff was working at the new Chullora plant as a mail room publisher. He was working in the loading dock. A photograph of the loading dock appears below.

Ex D

29   At about 6.00 am (about half to one hour before his shift was due to finish) he noticed that the bundles of papers were coming out the wrong chute and falling off the end of the conveyor belt and falling onto the floor. He had to rush down a ladder to shut the conveyor off. He was holding a pen and clipboard in his hands which he needed so as to have truck drivers sign for their consignment. He attempted to descend the ladder facing away from the dock, ie. the manner in which sailors descend ladders. He slipped on the first rung and fell from the ladder. He could not grip the railing because he was holding the clipboard. He landed on his feet. The plaintiff felt a very sharp pain from the neck down his shoulders and the whole of his back. Another employee turned the conveyor belt off. This is known as the “ladder accident”. Before the plaintiff went home and although in pain he completed what he considered an important task of sending a facsimile of information relating to the distribution to head office. The employer’s report of injury (Ex J) dated 20 October 1992 is consistent with the plaintiff’s account of the accident.

30   The defendant submitted it was a freak accident which was impossible to foresee. The defendant also submitted that there should be substantial reduction because of the plaintiff’s contributory negligence. Mr Burns stated that when there was a problem and it was necessary to use the steps it was essential that the person be able to move quickly and safely between various stations. The plaintiff at the time of the accident came down these steps facing outwards (as is the method used on ships gangways by sailors). It was Mr Burns opinion that this was an unsafe procedure as the ladder was vertical and not inclined in accordance with the code. If the ladder had been inclined it most likely would not have saved the plaintiff’s fall. The plaintiff does not know whether a ladder positioned on an incline would have made any difference as to whether the accident occurred or not so I do not think that if the incline of the ladder had been different it would have saved his fall. However Mr Burns made reference to the necessity for providing adequate training in the area where an untrained or non professional person is employed in a new area.

31   Mr Burns inspected the safety boots which he understood were supplied by the defendant. These boots had leather uppers and moulded rubber sole. The soles were in good condition and reasonably hard. He said that as a person stepped forward to descend the steps the smooth edge of the upper landing he would place the heel of his boot or its instep on the outer edge where the diamond pattern would have no effect and his body would throw his whole torso forward. This would be further influenced by the low handrail causing him to bend his trunk even further to maintain his grip.

32   Mr Burn opined that the procedure adopted was dangerous and that the defendant had a duty of care to staff which is described in the duties of employers as laid down in the Occupational Health and Safety Act and that the defendant failed in these duties to their employees in that they failed to provide adequate training of staff in their duties to minimise any likelihood of accident. It was foreseeable that when having to take immediate action an employee would use the quickest means possible to stop the conveyor belt spewing out bundles of inserts and may go down the ladder facing forwards, lose his balance and fall. The response to the risk would have been to provide sufficient training to the employees, particularly as the machinery at the Chullora plant had continued to malfunction. The plaintiff had never undergone any training at Chullora. It is my view that the defendant was negligent.

(4) Contributory negligence

33   In considering the question of apportionment the court is required to reduce the damages recoverable “to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”. The inquiry is not concerned with the cause of the accident but with the cause of damage - see Froom v Butcher [1976] QB 286 at 292-293. Contributory negligence is measured by the failure of the plaintiff to take reasonable care for his own safety - see Gunning v Fellows (1997) 25 MVR 97 at 99. It is the degree of departure from the standard of care of the reasonable man - see Pennington v Norris (1956) 96 CLR 10 at 16. Therefore it is an objective test and not subjective, as applied to someone such as the plaintiff. The standard of care is to be measured against that of ordinary prudence - Sungravure Pty Limited v Meani (1964) 110 CLR 24 at 36.

34   The plaintiff was attempting to fix a problem the quickest way possible. He had a clipboard in one hand and attempted to go down the ladder facing forward which was more risky than had he gone down the ladder backwards. Taking the above factors into account it is my view that the plaintiff’s contributory negligence should be assessed at 8%. I acknowledge that the effect of deducting 8% in respect of one injury may seem unfair but I have taken into account that this was the most significant accident which I have decided on the percentage.

(5) Subsequent motor vehicle accident- 15 January 1996

35   On 15 January 1996 the plaintiff was involved in a motor vehicle accident. The plaintiff’s car was stationery as were the two cars in front of him when the car in which he was travelling was hit from behind by another vehicle. This pushed his motor vehicle into the car in front. He was jolted forwards and backwards sustaining injuries to the neck, back, left knee and left wrist. The day after the accident the plaintiff consulted Dr Guirgis. The plaintiff complained of pain, stiffness and weakness in the left wrist and of pain he experienced at the front and outer border of the left knee. The plaintiff’s evidence is that two weeks after the motor vehicle accident these symptoms settled down and the pain returned to the same level it had been prior to the motor vehicle accident. Two to three weeks after the motor vehicle accident the pain in his left knee stopped.

36   The plaintiff has not returned to work since 20 October 1995. On 21 May 1996 the plaintiff attended Dr Guirgis suffering with recurrent acute cervico-lumbar sciatic episodes. Dr Guirgis admitted the plaintiff to Petersham Private hospital (Metropolitan Eye hospital) for five days. He underwent supervised bed rest and physiotherapy which he said helped a little bit. On 25 November 1997 the plaintiff was admitted to Concord hospital. Professor Dan operated on the plaintiff and performed a discectomy and decompression at L4/5 and L5/S1 levels. It took the plaintiff about six weeks after to become mobile with the aid of a walking stick. For a period of six to seven weeks after the initial recovery period his condition improved. However then the pain in his back reverted to its pre-operation level. On 30 May 1996 the plaintiff’s employment was terminated. The plaintiff accepted a redundancy package.

37   In relation to what damages should flow from the three work accidents and the subsequent motor vehicle accident, I am assisted by a decision of the Court of Appeal Jefferies v Roads & Traffic Authority of NSW, unreported 28 November 1997. Mason P (with whom Stein JA agreed) referred to a passage from the State Government Insurance v Oakley (1990) Aust Tort Reports para 81-003 at 67,577 with approval. This passage deals with the situation where the plaintiff suffered a subsequent injury. Malcolm CJ in Oakley said:

“In my opinion, where the negligence of a defendant causes an injury, and the plaintiff subsequently suffers a further injury the position is as follows:
(1) where the further injury results from a subsequent accident which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;
(2) where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant’s negligence; …”

38   From the principle (2) espoused in Oatley, it is my view that the motor vehicle accident would have occurred had the plaintiff been in normal health and the damage sustained to his back is greater because of the aggravation of the earlier work back injuries - see Dr Guirgis’ opinion mentioned later in this judgment. However, I am not satisfied on the balance of probabilities that the plaintiff’s neck injuries fall within principle (2) of Oatley because 75% of the plaintiff’s neck condition is attributable to the motor vehicle accident.

39   Both counsel agreed that an appropriate way to reflect the effect of the motor vehicle accident was to reduce the damages awarded for the work accidents by a percentage because the effect of the neck injuries sustained in the motor vehicle accident has to be taken into account in respect of all heads of damages except non economic loss. Dr Guirgis, at least in terms of residual working capacity, put the motor vehicle accident as affecting 25% of the 70% incapacity, ie. 18.5% but this includes the incapacity to both the neck and back. The back injuries sustained in the motor vehicle accident should be treated as arising from the defendant’s negligence, the neck injuries should not. Therefore, I would reduce the plaintiff’s damages by an overall 12% for the neck injuries sustained in the motor vehicle accident.

(6) Medical reports

40   There is an abundance of medical reports. The plaintiff tendered the reports of Dr Ali dated 24 December 1997 and 27 February 1998, Dr Attia-Solimon dated 18 August 2000, Bankstown/Lidcombe hospital notes, Concord Repatriation General hospital notes, Dr Croll of 15 September 1999, Professor Dan of 18 March 1997, 17 April 1997, 30 October 1997, 27 November 1997 and 6 March 1998, Dr Davis of 9 February 2000, Dr Donohoe of 20 July 1995, Dr Guirgis of 7 June 1995, 3 January 1996, 20 May 1996, 12 January 1997, 8 August 1997, 2 July 1998, 22 September 1998 and 9 June 2000, Dr Houang of 8 July 1997, two reports dated 28 January 1997 and 20 July 1998, Dr Jolly of 6 April 1998, Dr Kafiris of 8 September 2000, Dr Kanawati of 8 October 1995 and 17 June 1998, Dr Ly of 12 October 1998, Dr Mackie of 2 January 1997, Dr Perrett of 16 November 1995 and 13 February 1996. Dr Phillips of 3 November 1999, Dr Sequeira of 1 March 1995, Dr Shepherd of 22 March 1995, 10 July 1995 and 22 November 1995, Dr Smith of 30 November 1995, 21 December 1995, 3 February 2000 and 7 July 2000 and Dr Whitlocke of 16 November 1995 and 17 November 1995.

41   The defendant tendered the reports of Dr Nasser dated 9 June 1994, Dr Kanawati of 8 October 1995, Dr Smith dated 30 November 1995 and 3 February 2000, Dr Evans two reports of 6 December 1995, 14 August 1996, 4 June 1997 and 24 October 1997, Dr Khan of 6 December 1995, two dated 14 August 1996, two dated 20 June 1997, 22 October 1997, two dated 19 February 1998, 9 December 1998 and 4 June 1999, Dr Nasser dated 7 February 1996, Dr Hall dated 13 May 1996, 20 May 1996, 8 December 1998 and 25 May 1999, Rehabilitation Case Management Pty Limited dated 21 May 1996, Dr Ghabriel dated 10 September 1996, Dr Guirgis dated 12 January 1997, 8 August 1997, Dr Croll dated 12 May 1997 and 9 April 1998, Dr Brady dated 27 July 1997, Sydney CT and MR dated 8 August 1997, Dr Downes dated 14 August 1997, Dr Moore dated 16 December 1998, Dr Greenaway dated 28 May 1999 and Associate Professor Jones dated 17 May 2000.

42   There is an issue between the medical experts as to whether the plaintiff’s back and neck injuries prevent him from returning to his previous employment and whether the plaintiff is permanently unfit for heavy physical work

43   Dr Hall a consultant physician in his report dated 13 May 1996 stated that the plaintiff may have suffered from repeated soft tissue injuries but these injuries should have long since resolved. Dr Hall concluded that the plaintiff was no longer suffering from any significant back condition. According to Dr Hall the plaintiff is fit for all normal duties including his previous occupation. Dr James Downes, a consultant orthopaedic surgeon, in his report dated 14 August 1997, stated that it was his impression that the plaintiff had very little wrong with him and that his presentation had distinctive nonorganic features. Dr Downes was of the opinion that clinically he was capable of full employment without restriction.

44   Dr Evans an orthopaedic surgeon considered that the plaintiff was unfit for his previous employment but he thought that the plaintiff exaggerated his symptoms. Dr Evans’ prognosis was that long term there would be a considerable improvement and a fairly good resolution of symptoms. Dr Robert Smith an orthopaedic spinal surgeon wrote four reports dated 30 November 1995, 21 December 1995, 3 February 2000 and 7 July 2000. Dr Smith is of the opinion that the plaintiff is well entrenched in the chronic pain and invalid role and any improvement or return to effective employment was unlikely. In his last report Dr Smith held the opinion that the plaintiff had a 30% permanent loss of efficient use of the left leg, 30% permanent loss of efficient use of the right leg and 80% permanent impairment of the back. Of this 25% could be attributed to his initial injury, 25% to his accident in 1995 and ½ to the motor vehicle accident

45   Dr Jim Kafiris in his report dated 8 September 2000 concluded that the plaintiff suffered severe chronic lower back pain with chronic left leg sciatica/S1 nerve root compression. L3/4, L4/5 and L5/S1 discopathy with ongoing symptoms despite laminectomy/surgery to L4/5 and L5/S1 as well as frequent secondary tension headaches. According to Dr Kafiris the plaintiff also suffers chronic pain in his thoracic spine with T6/7 disc bulging. Cervical spine due to musculoligamentous injury/derangement with severe chronic pain. There was a musculoligamentous derangement of the left and right shoulder. Dr Kafiris stated that as a result the plaintiff has suffered severe psychological consequences and has severe clinical depression. He said that the plaintiff would not be able to perform any physical/labour type work in the future and that the plaintiff would only be suitable for light duties in the future if he can tolerate the discomfort involved.

46   Dr Terry Ly, rehabilitation consultant, in his report dated 12 October 1998 is of the opinion that the plaintiff would encounter difficulty performing normal tasks such as sitting or standing for any period of time. The plaintiff is unable to undertake any employment requiring repetitive flexion of the lumbar spine especially with a load. He assessed the whole person impairment at a rating of 60% and said that the plaintiff would experience great difficulty in gaining gainful employment in the near future.

47   Associate Professor Jones in his report dated 17 May 2000 concluded that the plaintiff had widespread degenerative disease in his spinal column, intervertebral discs and elsewhere. He was of the opinion that the plaintiff would be independent in personal care and some activities of daily living of a modest nature. He also noted the plaintiff’s history of diabetes and formed the view that from a physical point of view the plaintiff would be cable of semi-sedentary process for 36-38 hours per week with the restriction of not lifting weights of greater than 5 kilograms.

48   Professor Dan a neurosurgeon performed the spinal operation. In his report dated 6 March 1998 assessed the plaintiff as having a 20% permanent impairment of his back together with a 7.5% loss of efficient use of the left leg. He was of the opinion that there would be some disability in view of the ruptured disc. On the history given to Dr Dan he associated the plaintiff’s cervical and lumbar dysfunction to the lifting incidents, primarily the 1992 incident but this was exacerbated by the October 1995 incident. Unfortunately Dr Dan’s report is of limited value because he was unaware that the plaintiff had been involved in a motor vehicle accident.

49   All the psychiatrists, namely Drs Moore, Ali, Jolly and Phillips considered that the plaintiff was suffering depression which is mainly caused by pain and his inability to work and chronic pain syndrome and an adjustment disorder which are related to the work accidents. Dr Marilyn Moore a consultant psychiatrist in her report dated 16 December 1998 considered that the motor vehicle accident had exacerbated his work related injuries. Dr Osman Ali, rehabilitation psychiatrist, in his reported dated 24 December 1997 diagnosed the plaintiff as suffering from an adjustment disorder with depression and irritability secondary to ongoing pain and inability to work that culminated in termination.

50   Dr Hugh Jolly, psychiatrist, in his report dated 6 April 1998 opined that it was probable that the plaintiff would never work again at any employment which required labouring or marked physical exertion. His loss of job and working capacity has a significant psychological impact on the plaintiff and this has been exacerbated by external factors such as marital discord and the diagnosis of a diabetic condition. He apportioned 70% attributable psychiatric illness to the back problems and consequences, and 30% to other causes. He said that the plaintiff’s current mental state did impede rehabilitation insofar as the adjustment and relearning/re-training situation. Dr Attia-Solimon in his report dated 18 August 2000 attributes the motor vehicle accident as an exacerbation of the plaintiff’s psychiatric symptoms and played only a minor role (10%).

51   Dr Jonathan Phillips a consultant psychiatrist in his report dated 3 November 1999 was of the opinion that overall the plaintiff had a relatively poor prognosis given his known physical pathology and apparent lack of response to physical and psychological treatment. He said that the plaintiff’s current impairments were secondary to the series of work related accidents beginning in 1992 and aggravated by the motor vehicle accident in 1995.

52   Dr John Davis, an injury management consultant, in his report dated 9 February 2000 stated that the plaintiff was permanently unfit for his pre-injury duties. He said that the plaintiff was fit to undertake work of a semi sedentary nature which would not involve any repetitive bending, heavy lifting, carrying, forceful pushing or pulling, climbing, running, crawling or working in confined spaces.

53   The plaintiff consulted Dr Kanawati a general practitioner after each of the earlier accidents that do not form part of this claim. Dr Kanawati referred the plaintiff to a orthopaedic specialist, Dr Guirgis after the February 1995 accident. Hence their reports are instructive. Dr Guirgis gave evidence and was cross examined. Dr Guirgis treated the plaintiff after the 1995 accident and the plaintiff consulted him on the day of the motor vehicle accident. Dr Guirgis gave a fair and balanced appraisal of the plaintiff’s condition so I accept and prefer his evidence to that of the other medical practitioners in relation to the plaintiff’s orthopaedic injuries.

54   According to Dr Guirgis after the motor vehicle accident the plaintiff complained of pain, stiffness and weakness in the left wrist, and of pain felt on the front and outer border of the left knee. These symptoms settled down after a few months. As previously stated the plaintiff’s evidence was that his symptoms settled down after a few weeks. I prefer Dr Guirgis’ evidence and find that it took a few months for the symptoms the plaintiff experienced in the motor vehicle accident to subside. More significantly the plaintiff continued to suffer from severe aggravation of the pain and stiffness in the neck and severe aggravation of his headache attacks. The plaintiff also continued to suffer from persistent radiation of the pain down the left arm more than the right one in a combined C6/6 distribution.

55   Prior to the car accident the plaintiff’s back was bad, but after the motor vehicle accident it became worse, and there was radiation down both power limbs to the feet, in a combined L5/S1 distribution. Also the interscapular component of the plaintiff’s back was aggravated, as well as the pain and stiffness felt in the lower half of his back. In subsequent consultations Dr Guirgis stated that it was clear that the motor vehicle accident aggravated both his neck and back condition, but the aggravation in the neck was far worse than that in the lower back. Dr Guirgis opined that the motor vehicle accident caused further strain/sprain of the myo-fascial and ligamentous structures of the neck, mid back and lower back, with further scarring and loss of resilience and elasticity in the injured areas which were the site of underlying chronic traumatic pathology. This lead to more increased vulnerability of those areas but his neck was more vulnerable than his back.

56   Dr Guirgis was of the opinion that the plaintiff’s injury would result in 30% permanent impairment of the neck; 75% of which was attributable to the motor vehicle accident and 25% on account of the work related injury. He assessed a 50% permanent impairment of the back; 25% of which was attributable to the motor vehicle accident and 75% on account of the work related injury. 15% permanent loss of the efficient use of the left arm at or above the elbow level. 75% of which was attributable to the motor vehicle accident and 25% on account of the work related injury. 5% permanent loss of the efficient use of the right arm at or above the elbow level. 75% of which was attributable to the motor vehicle accident and 25% on account of the work related injury, 20% permanent loss of the efficient use of the left leg at or above the knee level. 25% of which was attributable to the motor vehicle accident and 75% on account of the work related injury; 10% permanent loss of the efficient use of the right leg at or above the knee level. 25% of which was attributable to the motor vehicle accident and 75% on account of the work related injury. In cross examination Dr Guirgis stated that even if the car accident had not occurred the plaintiff’s back condition was deteriorating. The effect of the car accident was that it accelerated the deterioration of the plaintiff’s back.

57   It was Dr Guirgis’ view that the plaintiff is totally unfit for work at present. In addition to the plaintiff’s physical injuries Dr Guirgis also explained that the plaintiff suffers from the “failed back syndrome” which means that any touch to the spinal chord triggers pain. This has come about because there has been a neurochemical alteration in the spinal chord. Dr Guirgis expects that the plaintiff will recover from this condition over the next few years. Dr Guirgis also said that physically the condition of the plaintiff’s back may improve. However in the future, Dr Guirgis thinks that the plaintiff would be able to do professional type work that would not require his presence all the time because during the acute episodes of pain in the plaintiff’s back he would not be able to do any form of work during an acute episode. Dr Guirgis assessed the plaintiff’s residual capacity as 30% of the 70% incapacity, 25% was caused by the motor vehicle accident (t 82.40). As previously stated, I prefer Dr Guirgis’ evidence.

(7) Damages

(i) Non economic loss

58   As previously stated prior to the accident the plaintiff was happy and sociable. He had a happy marriage. He suffers from disabilities and takes medication. This is unrelated to the accidents. After the fourth to sixth accidents the plaintiff’s wife and brother-in-law gave evidence that the plaintiff had changed. He no longer has a sense of humour. The relationship with his wife is strained and tenuous. His marital relationship has deteriorated and whether it will continue is in the “hands of God”. He has become depressed and irritable. He does not socialise. He occasionally drops off and picks up his children from school. He can drive only short distances. He has good days and bad days. On bad days he cannot hug and play with his children. This causes him distress.

59   Prior to the accident the plaintiff prided himself on being a physically strong and hard worker. Financially he provided well for his family. Now he considers that he has failed his wife, his children and himself. When he is in pain he has to use a walking stick to move around. He cannot stand or sit in the same position for any length of time. He experiences headaches suffers from depression and what is known as “failed back syndrome” or chronic pain syndrome. He and his wife are reluctant for him to be seen in public using a walking stick. Despite undergoing spinal surgery the plaintiff continues to suffers constant disabling pain in his neck and back. I have covered the medical condition of the plaintiff’s back and neck earlier in this judgment. He has pain radiating down his left leg. He may have to undergo a further spinal operation in the future to relieve the pain in his back. I have taken into account that the plaintiff’s injury to his neck was caused by the motor vehicle accident, not the work accidents. In assessing the plaintiff’s non economic loss for these work accidents, I have excluded the effects of the motor vehicle accident. Overall I assess the plaintiff’s non economic loss as 60% of a most extreme case. This equates to $130,170.

(ii) Out of pocket expenses

60   The plaintiff claims the amount of $67,934.17 for past medical expenses. I allow this sum.

(iii) Past economic loss

61   The plaintiff claims $908.69 net at 282.8 weeks for past economic loss which totals $256,977.00. The defendant agreed that the plaintiff was not fit for work from the last accident which occurred on 30 June 1995 until the motor vehicle accident which occurred on 15 January 1996. The plaintiff was terminated on 30 May 1996. I have accepted Dr Guirgis’ view that the plaintiff is currently totally unfit for work and has been since the last work accident which occurred on 30 June 1995. Using the plaintiff’s schedule of calculation and updated to the judgment date, past economic loss is calculated at $243,757.14.

(iv) Future economic loss

62   The plaintiff claims $635 net per week with a loss of 70% capacity to earn at multiplier 753.6 less 15% for vicissitudes which equals $406,755.00. The defendant submitted that there was some loss of earning capacity caused by the work accidents but assessment depends on proportion attributable to the motor vehicle accident. I am satisfied that the plaintiff will remain totally unfit for any physically demanding occupation. He cannot stand or sit for any period of time nor can he undertake employment requiring flexion of the lumbar spine. He cannot return to his pre-accident employment. However, as Dr Guirgis stated the plaintiff is intelligent but has difficulties with the English language. He was studying law in Lebanon. He has, in my view made a half hearted attempt to improve his English as he only attended a few classes. He could make further efforts to improve his English so as to improve his employability. He is still a relatively young man. As Dr Guirgis stated and I accept the plaintiff is capable of some type of professional work that does not require his constant physical presence so that during the acute episodes of pain he could rest. His physical and psychiatric condition are expected to improve. I do not think that there will be a great deal of improvement in the condition of his back and neck in the future. I assess that the plaintiff has a residual earning capacity of 45%. A comparable employees wage is $983 net per week ie., 55 % = $540.65 net per week x 753.6 = $407,433.84 less 15% for vicissitudes = $344,501.38.

(v) Fox v Wood component

63   If the workers compensation pay-back figure as supplied by the defendant is $2,280, the Fox and Wood component would be minimal. I allow the sum of $200.

(vi) Loss of past and future superannuation

64   The plaintiff claims $24,711.44 for loss of past superannuation and $79,195.25 for loss of future superannuation. Past superannuation equates to $25,242.40 and future loss of superannuation equates to $540.65 x 9% = $48.66 x 753.6 x 85% = $31,128.29. Total loss of superannuation = $56,370.69.

(vii) Domestic assistance

65   The principles were recently restated by the Court of Appeal in Sullivan v Gordon (1998-99) 47 NSWLR 319. To determine the applicable amount to be awarded for home care services it has to be identified which services the plaintiff would reasonably need, as a result of the defendant’s wrong. Or expressed another way the plaintiff is to be compensated for the loss of his capacity to look after himself which was caused by the accident - see Van Gervan v Fenton (1992) 175 CLR 327. However, according to s 151K(3) no compensation is to be awarded if these services would have been provided to the plaintiff had he not been injured. The care is calculated at rates in accordance with the Act.

66   The plaintiff relied on a Dial-an-Angel report dated 14 February 2000. The plaintiff initially claimed the following:

Item	Frequency	Time per week
Preparation of meals	3 hours per day	21 hours per week
Assistance with personal hygiene	45 minutes per day	5.25 hours per week
Assistance with domestic cleaning	1 hour per day	7 hours per week
Assistance with grocery shopping	30 minutes per day	3.5 hours per week
Assistance with transportation to and from treating doctors and physiotherapy	1 hour per day	7 hours per week

67   The plaintiff reduced the claim to 3 hours per day 7 days per week for domestic care for both past and future domestic care. According to the plaintiff past domestic care pursuant to s 151K is calculated at $16 per hour. The plaintiff claims $108,326 for past domestic care. The defendant submitted that there is only a slight requirement for help because he can live on his own, he can cook and drive and his condition will improve.

68   Prior to the accident the plaintiff did the shopping, carried the bags and assisted with the housework. He did the vacuuming. The plaintiff’s wife gave evidence that when her husband is bad she has to spend all day looking after him. She does his washing, does up his shoelaces, assists him in the shower and dresses him. She and her children put his sock and shoes on. She massages the parts of his body, namely neck, back, legs or shoulders that are in pain. He lays down on the bed at these times and keeps a walking stick by the bedside. The pain is not this bad every day. The pain level changes from day to day. On good days he will walk without the aid of a stick. His son was born in 1993 and the plaintiff played with him in parks, picked him up, assisted in bathing him. By the time his daughter was born due to the accidents, he was unable to lift or carry her and play with his children which distresses him. He tries not to let them see him in pain. On good days the plaintiff is independent with his personal hygiene and dressing. From all accounts the plaintiff’s marriage is experiencing severe problems and may not survive.

69   When the plaintiff’s wife and children returned to Lebanon for a few months he visited his sister and brother-in-law once or twice a day. They lived a kilometre away. He had meals with them. When he was unable to drive to their place due to the pain level he was experiencing his sister would send her son to deliver a meal to the plaintiff to deliver a meal to the plaintiff. His sister cleaned his unit and washed his clothes. Sometimes his brother-in-law drove him to medical appointments when the plaintiff was unable to do so. The plaintiff’s wife recently obtained her licence and she usually drives the plaintiff to his appointments. The only doctor that refers to the need for domestic care is Associate Professor Jones. He said that the plaintiff would be independent in personal care and some activities of daily living of a modest nature. It is my view that the plaintiff has required 3 hours per week of domestic assistance. This equates to $16 x 3 = $48 x 919.5 = $44,136.00.

(viii) Future domestic care

70   The plaintiff claims 3 hours per day 7 days per week at $20 per hour equals $420 per week. It is my view that the plaintiff will need some domestic assistance in the future. He more likely than not will remain unable to tie up shoe laces and carry out heavy household cleaning. On most days he will need minimal domestic assistance but on bad days he may require several hours of domestic assistance. It is difficult to be accurate but doing the best I can, it is appropriate to allow 2.5 hours of domestic assistance for the future. $20 x 2.5 = $50 per week x multiplier 915.5 = $45, 775.00.

(ix) Future medication and medical treatment

(a) Future operation

71   Dr Guirgis gave evidence that the plaintiff’s back condition is getting worse. As the plaintiff is experiencing nerve problems evidence by a foot drop during showering and wasting of the crural and anti-crural muscles in the plaintiff’s right leg. The plaintiff may have to undergo a spinal fusion to save the nerve. However this operation, should it take place, will be unlikely to reduce the level of pain the plaintiff currently experiences in his back. A spinal fusion is a last resort. Dr Guirgis estimates the chances of such an operation at 50/50 and the costs as being between $15,000-$20,000. In accordance with Malec v J C Hutton Pty Limited (1990) 169 CLR 638 an award for damages should reflect the possibility of a future operation. I make an allowance of $9,000.

72   The plaintiff claims $40 per week for future medical expenses. A breakdown of the medication and their costs has been provided by the plaintiff’s pharmacist, Radwan’s Pharmacy (Ex K). A schedule has also been provided by the plaintiff. Dr Attia-Solimon stated that the plaintiff required an antidepressant and Tegretol medication for the rest of his life. He will continue to require pain relief. From the schedule I disallow Diabex and the aquatic centre expenses. Diabex is not related to the accident nor am I persuaded that the plaintiff will be motivated to swim. Hence, the weekly sum I allow for medication is $35. The allowance for future medication totals $32,112.25.

73   For future treatment, the plaintiff claims $15,879 for physiotherapy, remedial massage at $35 x 17 per annum equals $10,498, visits to consultant neurosurgeon and orthopaedic surgeon $8,822, “fit for work” program $2,000. This totals $37,199. The plaintiff is currently being assisted in his rehabilitation by Dr Guirgis. Dr Guirgis’ evidence is that he has invested a lot of time with the plaintiff as he believes that he can assist the plaintiff in improving his condition. It will be necessary for the plaintiff to consult a neurosurgeon from time to time due to his pain. I allow the $2,000 for the “fit for work” program, but it is my view that the plaintiff does not derive any benefit from physiotherapy nor remedial massage at present. He may need some physiotherapy in the future so I allow $4,000. The plaintiff also claims for hydrotherapy, sacro thermal belt, sacro cinch belt, neck therapy pillow, cervical collar, Dosi EQ posture support, portable pro shiatsu massager, tens machine, pain clinic. This equates to $8,323. With the exception of the provision of visits to the neurologist, the need for these items has not been established so I disallow them. The plaintiff has sought the assistance of the pain clinic in the past and it has not been of benefit. However, in the future methods of managing pain may improve that can provide assistance to the plaintiff so I allow the sum of $2,000. This totals $8,000.

74   In his report dated 3 November 1999 Dr Jonathan Phillips consultant psychiatrist stated that he was reluctant to suggest a further trial of psychiatric treatment if it were to be shown that the plaintiff had received appropriate post trauma therapy from Dr Ali and taking into consideration that the plaintiff had been medicated with a number of antidepressant agents of different classes. If however it was shown that the plaintiff had received inadequate treatment from Dr Ali then Dr Phillips considered the following treatment program would be needed. Twenty to thirty consultations with a psychiatrist expert in the management of post trauma syndromes, with therapy to include a controlled catharsis, psycho-education, relation training and tension reduction procedures, and the development of optimal coping strategies for the future, and medication with a modern antidepressive agent administered in therapeutic dosage. Dr Phillips stated that the government recommended fee for a consultation of 45 minutes or longer was currently $134.65 and that most psychiatrist would charge $170-$175 for a similar consultation. Dr Attia-Solimon is of the view that the plaintiff will require ongoing monthly psychological consultations for two to three years to modify his response to his pain and disability. The range per consultation is $79.45 to $10185. I do not think that the services of both a psychologist and psychiatrist are necessary. I allow 20 psychiatric consultations at $170 per consultation. This equates to $3,400.

(x) Interest

75 The plaintiff claims interest pursuant to s 151M Workers Compensation Act 1987 at 75% of the rate prescribed under s 95 of the Supreme Court Act on past economic loss, past superannuation and past medical expenses which have already been paid.

76 According to s 151M(4) interest is not payable unless:

“(i) information that would enable a proper assessment of the plaintiff's claim has been given to the defendant and the defendant has had a reasonable opportunity to make an offer of settlement (where it would be appropriate to do so) in respect of the plaintiff's full entitlement to all damages of any kind but has not made such an offer, or

(ii) the defendant has had a reasonable opportunity to make a revised offer of settlement (where it would be appropriate to do so) in the light of further information given by the plaintiff that would enable a proper assessment of the plaintiff's full entitlement to all damages of any kind but has not made such an offer, or

(iii) the defendant has made an offer of settlement, the amount of all damages of any kind awarded by the court (without the addition of any interest) is more than 20% higher than the highest amount offered by the defendant and the highest amount is unreasonable having regard to the information available to the defendant when the offer was made.


(b) The highest amount offered by the defendant is not unreasonable if, when the offer was made, the defendant was not able to make a reasonable assessment of the plaintiff's full entitlement to all damages of any kind.

(c) For the purposes of this subsection, an offer of settlement must be in writing.”

77   There is no evidence in relation to the above criteria so I reserve the question of interest.

78   I propose to enter judgment that the defendant pay to the plaintiff the sum of $811,085.13 once the parties have had the opportunity to check the calculations and the interest component has been argued and included in the verdict.

79   From the verdict the sum of $2,280 has to be deducted because this amount has been paid to the plaintiff by way of workers compensation.

80   The orders I propose to make are:

(1) The defendant is to pay to the plaintiff the sum of $811,085.13.

(2) The defendant is to pay the plaintiff’s costs as assessed or agreed.

SCHEDULE

$

Non economic loss 130,170.00

Out of pocket expenses 67,934.17

Past economic loss 243,757.14

Fox v Wood 200.00

Future economic loss 344,501.38

Loss of past and future superannuation 56,370.69

Domestic assistance 89,911.00

Future medication and medical treatment 52,512.25

985,356.63
Less 8% for contributory negligence 78,828.53
906,528.10
Less 12% to reflect the effects of the motor vehicle
accident (excluding non economic loss) 93,162.97
Judgment amount 813,365.13
Less workers compensation payments made 2,280.00
$ 811,085.13
**********

Last Modified: 05/28/2001