Markussen v Robins and Suncorp Metway Insurance Limited; Robins v Markussen and Suncorp Metway Insurance Limited
[2002] QDC 15
•13 February 2002
DISTRICT COURT OF QUEENSLAND
CITATION:
Markussen v Robins and Suncorp Metway Insurance Limited
Robins v Markussen and Suncorp Metway Insurance Limited [2002] QDC 015PARTIES:
GRANT NORMAN MARKUSSEN Plaintiff
And
MICHELLE TRYPHENA
ISABELLA ROBINS First DefendantAnd
SUNCORP METWAY INSURANCE
LIMITED Second Defendant
(ACN 075 695 966)And
MICHELLE TRYPHENA ISABELLA
ROBINS PlaintiffAnd
GRANT NORMAN MARKUSSEN First DefendantAnd
SUNCORP METWAY INSURANCE
LIMITED Second Defendant
(ACN 075 695 966)FILE NO/S:
3309 of 2000
D322 of 2000DIVISION:
Civil
PROCEEDING:
Cross Actions for damages for personal injury
ORIGINATING COURT:
Magistrates Court, Redcliffe
District Court, BrisbaneDELIVERED ON:
13 February 2002
DELIVERED AT:
Brisbane
HEARING DATE:
21-22 January 2002
JUDGE:
Judge Boulton
ORDER:
Judgment for Plaintiff in Action 3309/00 with costs Plaintiff’s action in D322/00 dismissed with costs
CATCHWORDS:
Negligence, Motor Vehicle Collision, Defendant’s Motor Vehicle entering intersection with major road through Give Way Sign with fogged windows.
Damages – Personal Injury – Motor Vehicle Collision – Musculoligamentous injury to cervical spine, 4-5%, Permanent impairment of bodily function – 30 yr old Fitter and Turner. .
COUNSEL:
Mr L. Barnes with Ms. M. Martinez for Plaintiff in Action 3309/00 and Defendants in Action D322/00. Mr P. de Plater for Defendants in Action 3309/00 and Plaintiff in Action D322/00.
SOLICITORS:
Trilby Misso and Quinlan Miller and Treston; Cooke and Hutchinson and Eardley Motteram.
DRAFT REASONS FOR JUDGMENTS
These two actions arise out of a two-car motor vehicle collision on the late afternoon of 5 June 1999. At about 5.15 pm on that afternoon the Plaintiff in Action 3309 of 2000 and the First Defendant in Action D322 of 2000 (hereinafter called “the Plaintiff”) was driving his wife’s Holden Astra motor vehicle in a northerly direction along Oxley Avenue at Redcliffe. At the same time the First Defendant in Action 3309 of 2000 and the Plaintiff in Action D322 of 2000 (hereinafter called “the Defendant”) was driving her blue Corona sedan in a westerly direction along King Street at Redcliffe at its intersection with Oxley Avenue.
The intersection is depicted in a number of photographs, exhibits 10,11,12,14,15 and 16. Suffice to say that Oxley Avenue is a major arterial road carrying two lanes of through traffic in either direction. In addition there is what appears to be a marked parking lane adjacent to the kerb on either side of the road. There is a concrete median strip with a turn right lane for traffic from either direction wishing to turn into King Street. On each side of Oxley Avenue there were give-way signs confronting traffic coming from King Street on to Oxley Avenue.
At the time of the accident it was raining heavily. It seems to be agreed that because of the time of the year and the overcast conditions it was fairly dark. Both parties claim to have had their headlights on though neither party claims to have seen the other vehicle prior to impact. There were no other eye witnesses.
The red Astra had a secondary impact with a brick fence sustaining significant damage to the front of the vehicle including the area of the headlights. Photographs taken of the vehicle after the accident confirm this. It seems that no examination was carried out of the blue Corona after the accident. Certainly no photographs are available. From the account of the accident given by the Plaintiff, which I accept, the blue Corona is likely to have suffered front end damage and damage down its passenger side.
The Defendant gave some evidence that several days after the incident she was shown a vehicle in a holding yard which some unidentified person said was the Plaintiff’s vehicle. There was no satisfactory evidence that this was in fact the case. She does not seem to have checked the licence plates or to have made any close examination of the vehicle. She said that she looked in through the window and saw that the headlights switch on the spindle was in the off position. No reliance can be placed upon this evidence. It is not even clear that she was looking at the relevant vehicle. The defendant was also an unimpressive witness when it came to matters of detail. I find it strange that she did not attempt to have her own vehicle examined or photographed despite being made aware within a few days that she was being held responsible for the loss to the Plaintiff. She made no attempt to identify the Plaintiff’s vehicle properly or to have someone confirm the off position of the light switch.
There was evidence that both vehicles had to be towed from the scene. There was no evidence as to whether the driver of the tow truck interfered with switches on the vehicles. There was no evidence as to whether the Plaintiff or Defendant turned off ignition switches or light switches after the impact.
By coincidence the Plaintiff had been pulled over for a random breath test by a marked police vehicle only 200m or so prior to the collision. The test was negative. He says, however, that he drove off with particular care with his headlights on and his indicator activated. I accept this.
The matters to be resolved
I should point out that the issue of liability for the accident as between the Plaintiff and the Defendant including the issue of contributory negligence of the Plaintiff are to be determined on this trial along with the issue of quantum of damages suffered by the Plaintiff. At a later point of time in the cross action there may be an issue of contributory negligence raised against Ms Robins arising out of an alleged failure to wear a seat belt. That issue is not to be determined by me on this occasion. The question of damages suffered by Ms Robins would also fall for determination at that later stage.
The Collision
The Plaintiff was proceeding in a northerly direction in the lefthand lane of the two through lanes. He was travelling at about 60km per hour which was the speed limit in the area. He saw no other traffic in the close vicinity. The Defendant was driving home with her young son and one of his friends after having purchased some takeaway food. She had driven along King Street and was intending to cross Oxley Avenue into the westerly portion of King Street which extended on the far side. That westerly portion was not as wide as the easterly portion which meant that the defendant would have needed to cross on an angle somewhat to her righthand side. Exhibit 14 depicts the dogleg effect in King Street. This feature may have some significance in explaining why the Plaintiff did not become aware of the presence of the Defendant’s vehicle until the impact.
The Defendant’s vehicle struck the Plaintiff’s vehicle to the righthand side just behind the driver’s door. The Plaintiff’s vehicle was forced over the parking lane and the kerb to collide with the brick fence of a house on the northwesterly corner of the intersection. The Defendant’s vehicle finished in a roughly parallel position pointing in the same direction. I accept the Plaintiff’s evidence that the two vehicles were so close together that he could not emerge through the front driver’s door. He got out through the front passenger seat and promptly attended to his one year old son who was in a capsule in the lefthand rear passenger seat of the vehicle. By this time the lady who resided at the house had emerged and assisted with the child. The Plaintiff went to the blue Cortina at the driver’s door. He was asked, in examination in chief:
“Did you try and look into the other car before you opened the door? – Yeah. Yeah, but you couldn’t see in.
Why couldn’t you see into it?-- Because it was all fogged up.
When you say fogged up, it was raining-----?-- Yes.
-----heavily at the time?-- Yes.”
When he opened the driver’s side door the defendant was in a crouched position on the floor in front of the front passenger seat screaming “I don’t know what happened, I don’t know what happened”.
Margaret Robyn Lane is currently the Principal at East Brisbane State School. She was residing at the house in question. She was in the front bedroom of the house which is on the corner of the house closest to the intersection when she heard a very big bang. She looked out through the window and saw two cars parallel to each other against the fence. She did not delay in moving but walked down a hallway of about 5m to the front door, opened the door and went outside. The driver of the red car had already got out of the car. By the time she got to the front fence she could see through the windscreen of the red car and had no difficulty in seeing through the window that there was a baby in the back seat of the car. She was asked:
“Did you look at the other door of the blue car?-- I did.
Did you try and look through the windscreen or the windows of that?-- I tried.
What did you see?-- I couldn’t see anyone. I couldn’t see into the car.
Why was that?-- It was badly fogged, the front windscreen.
Was it raining at the time?-- It was raining, yep.
You might be asked, well, could you be confused? Was your vision through the windscreen of the blue car obscured by rain as opposed to fog?-- No, it was definitely fogged.
To what degree was it fogged up?-- I couldn’t distinguish the shape of people in the car.
Could you tell – what parts of the windows did you try and look in through? Was it the windscreen, the side windows?-- Both. From where I could stand I could see them both.
Approximately?-- Sorry, to try and see through both.
You could see through the passenger side windows or-----?—
Sorry, could you see the passenger side windows?-- Oh, yes.
Could you see the windscreen?-- Yes.
You couldn’t see through either?-- No.
How far approximately were you standing at that stage from the blue car?-- Would have been about four metres.”
Mrs Lane was an impressive witness. She was quite adamant, under cross-examination, that the windows and windscreen of the blue Corona were all fogged up.
The defendant was cross-examined about the fogging up of her windscreen and windows:
“Let’s just get it clear. As you were driving along for this 15 minutes with the possible exception of when you were stopped at the take-away shop, all your windows were up because of heavy rain?-- Yes, like I said, except I usually – well, I would have left-----
You don’t remember that?-- Yeah, I did. Yes, I did.
You used the words, “I would have”?-- Yes, no, I did.
You used the words, “I would have”?-- Yes, no, I did. I do remember having my window down slightly, yes.
Is that the only window that was down slightly, your window?-- That’s all I can truthfully say, yes.
Your window is down what, an inch?-- Yes, maybe two.
Two six year old boys in the car?-- That’s correct.
And you?-- That’s correct.
For 15 minutes?-- Yes.
No air-conditioner?-- No.
No fan?-- No.
No demister?-- No. It’s a very old car.
I’m suggest to you that your vision was obscured by what we might call fogging on your windows?-- I don’t accept that. I disagree.
HIS HONOUR: Was the driver’s side window down only temporarily when you were at the take-away shop or was it down all of this period?-- It was down all of the period.
Thank you.”
I do not accept the defendant’s evidence that she had the driver’s side window down an inch or two. It was raining heavily. The fogging up of her windscreen and windows described by the plaintiff and by Mrs Lane within such a short time of the collision satisfies me on the balance of probabilities that the defendant drove her motor vehicle across Oxley Avenue at a time when she had no adequate view of vehicles coming from her left. It does not seem that in the last few metres she looked to her left where the glare of the plaintiff’s headlights would have been obvious. When asked as to what she remembered about crossing the intersection she initially said that she remembered taking off from the intersection but didn’t remember anything after that. She was asked:
“Do you remember driving a couple of metres onto the intersection or halfway across the intersection? What do you remember?-- Well, I can’t remember. I could say to you that I remember driving halfway across but I can’t say that for sure because I don’t know how far I got before the point of impact. I don’t remember back then.
You really don’t remember anything after stopping, do you?-- Yes, I do. I remember driving through the intersection having my sights on the other side of King Street. That was my obvious destination – was to get to the other side.
What you do remember, if anything, going across the intersection is you remember looking directly across where you were going?-- As I would, yes.
That is where you were focused and only there?-- After – as I – after I alighted from the intersection, after I had continued through the intersection.
What you are saying is that after you started on to the intersection you didn’t look to your left to see if anything was coming?-- I’d say that I would because that is general driving.
Do you remember?-- Yes, I do. Yes, I do. I took absolute due care that night in all aspects of driving.”
The Queensland Ambulance report, Exhibit 17, reveals that the weather conditions on the evening in question were adverse being cold and rainy. Such conditions are notoriously conducive to fogging up of windows.
I find that the effective cause of the accident was the failure on the part of the defendant to keep a proper lookout in circumstances where the presence of a give-way sign and the crossing of a major arterial road made it imperative that she exercise a high degree of care. She might well, in the circumstances, have crossed the southbound lanes into the gap created by the median strip and the turn right lanes and there made further observation of the northbound lanes. Instead she seems to have made an election to cross in doubtful circumstances and then proceeded nonetheless. Her estimate to the ambulance officers was that she was travelling at approximately 20km per hour which, having regard to the severity of the impact, would not appear to be an exaggeration.
Contributory Negligence of the Plaintiff
Both parties, as I have mentioned, claim to have had their headlights illuminated. Having regard to the time of day and the heavy rain that would seem to have been an appropriate thing to do. It is not suggested, however, that it was very dark. I note, for instance, that when Mrs Lane looked out her bedroom window she was able to see the two vehicles parallel to each other at her front fence. When she went to her front gate she was able to see through the windows of the red Astra and that there was a young child in a baby seat of some kind in the rear. She was also able to perceive that the windows of the blue Corona were, as she put it, “all fogged up”. By this time both cars had sustained front end damage. No mention is made of the lights being illuminated on either vehicle either at the front or the rear.
The only evidence to the effect that the headlights on either vehicle were not illuminated is by way of inference from the fact that both drivers failed to see the other vehicle prior to impact. Such an inference doesn’t seem to be a safe one to draw in the case of the Plaintiff’s vehicle. The windows in the defendant’s vehicle were very likely heavily fogged up and from the time that she entered on to Oxley Avenue she seemed to have her attention focussed towards the entry to King Street which was somewhat to her right. I accept that the Plaintiff’s headlights were illuminated when his vehicle was struck to the right rear by a vehicle coming at some speed from that direction. I am less persuaded about the state of the Defendant’s headlights and therefore of the extent of any failure on the part of the Plaintiff to see her vehicle.
The Plaintiff was aware of the give-way signs at the intersection. Travelling as he was in the lefthand lane, in difficult driving conditions, his principal area of concern would have been the road ahead. He checked the intersection as he approached. Any threat from his right would not have been apparent. The Defendant’s vehicle entered the northbound carriageway at some speed from his right rear. I am unable to find, on the balance of probabilities, that he was contributorily negligent in such circumstances.
Quantum
On the issue of quantum the parties are, to put it mildly, a long way apart. In respect of a pain and suffering figure the Plaintiff’s Counsel submits an amount of $30,000 in contrast to the $12,500 submitted by the Defendant’s Counsel. As to future economic loss including loss of superannuation the relative figures are $194,000 to $5,000. As to past and future care they are $24,000 odd to $1,000 odd.
The discrepancies are all the more surprising when regard is had to the fact that the plaintiff’s evidence and the specialist medical evidence was relatively non-contentious.
Past Work History
The plaintiff was born on the 30 January 1971 and was educated to grade 10 standard. On leaving school he did a pre-vocational course in engineering construction at TAFE and then began work as a brickie’s labourer for a year or so. That was laborious work. He then became an aluminium die caster for a year or so - another laborious job. For several years he then was a small engine mechanic and again for a further period of some years a brickie’s labourer. It would seem that in or about 1986 he began an apprenticeship as a fitter and turner at a small family engineering firm, Eljay Engineering. He qualified in about June 2000 and has been working for that same firm since. When injured on the 5th June 1999 he still had approximately a year of his apprenticeship left to run.
It would seem that there are about six employees in the workshop. They all work long hours, 10½ hours a day Monday to Friday and 6½ hours on Saturday.
The workshop would seem to be cluttered. He referred to a walkway between two tables in the court room which was 18 inches to 2 feet wide and commented:
“… if you had a walkway between those two tables in our factory that was a good open space.”
There are machines and heavy hand tools in the workshop. There is much heavy lifting. He described lifting of weights between 20 and 80kg up to 20-30 times a day. In the case of weights from 50-80kg he would ask other employees for assistance. He would also be called upon to assist those employees with their lifting on occasions. He was asked about mechanical assistance:
“How many machines to you work on in total?-- About 12.
Is there some mechanical assistance available for the heavy lifting?-- Oh, on two of them there is a overhead monkey chain block and there is a forklift, but that obviously can’t get around all the places of the workshop.
What happens if this heavy lifting is associated with one of the machines where there is no chain block or where the forklift can’t get at?-- We have to manually do it.”
He said that after about three hours work his neck and shoulder would commence aching and that at the end of a 10½ hour day he was “pretty ached up”. It is not practical having regard to the organisation at the workshop to be rostered on to light duties. It was also not possible to work a 38 hour week. The employer requires all employees to work the overtime.
He has worked these hours under these conditions for the past 2½ years since his accident. He had very little time off following the accident. He went to see a general practitioner on the Monday after the accident and had some x-rays taken on the Tuesday. The sessions of physiotherapy that he attended were taken out of work hours. He has not been to physiotherapy since. However, he was given an exercise program which he has continued to perform. He and his wife have two young children, both boys. He has been motivated to work the long hours by the need to provide for his family, pay his mortgage and other outstanding debts. He expresses some doubt as to his capacity to be able to continue working such long hours in the future.
Medical Evidence
There were two specialists, orthopaedic surgeons, who gave evidence, Dr Gillett on behalf of the Plaintiff and Dr Boys on behalf of the Defendant. There was very little difference in their opinions. Both doctors thought it reasonable that the plaintiff would experience symptoms when performing such heavy work. On being told of the work practices prevailing at the Plaintiff’s place of employment, Dr Boys responded:
“Well, I would advise him to my knowledge his problems were muscular in nature and that in general terms muscular strain could be minimised by appropriate handling and lifting practices, and if I believed there was some way of altering his work practices, I would certainly advise him to do that …
My advice would be he would have to make a decision as to his comfort if he could continue working 55 hours a week obviously for financial reasons, otherwise I don’t think there is anything that would stop him doing that but in general terms as far as his comfort goes, if he reduced his hours, he may be more comfortable.
Dr Gillett was provided with similar information as to the plaintiff’s work situation and responded:
“I think it’s reasonable that he is getting a lot of pain with the description given to me. I would think that he would have much less pain if he was working less hours and I think he would have much less pain if he had more lifting equipment and so forth. So I think he would be better off, from the point of view of pain and quality of life, to reduce hours and probably obtain employment, if possible, in a less heavy or better ergonomic type of environment. The fact that he is maintaining his employment at this time just reflects that he is putting up with the pain and that’s within the realms of what people do, but I would think that, you know, it would be reasonable for him to change jobs.
Doctor, in terms of reduction of hours, what do you say about reducing to a 38 hour week?-- I think with his injury and impairment at a 38 hour week, which , you know, all the things a fitter and turner – you know, with lifting and equipment, gantry cranes and forklifts and so forth, he would still have pain because part of his job – or part of the usual jobs in the fitter and turner work involves a lot of static posturing of the head and neck, concentrating on a task, particularly lathe work or other work involved in the occupation. So the nature of fitting and turning does involve static posturing for periods of time of the neck and that would induce pain, but at lesser hours I think he would be able to work in that capacity with a good working set-up. But I think it’s totally reasonable that he has a lot of pain related to what is described as his current work.”
These opinions are, with respect, eminently reasonable. The Plaintiff might continue in his present employment working his 55½ hours per week or thereabouts as long as his motivation induces him to put up with the symptoms. On the Plaintiff’s evidence it is not possible for him to work reduced hours at his present place of employment. It would then be a case of seeking alternative employment. Even leaving aside his injury it would seem to be to his advantage to work in better surroundings which would present him with a much better chance of working through to retirement without suffering serious injury.
If at some stage he does change his employment to a situation where there are better lifting facilities and so on – which seems desirable – the major cause of his present problems which involves heavy lifting would be largely overcome. He would not be symptom free because of the static posturing that is inherent in fitting and turning that is spoken of by Dr Gillett. Depending upon the availability of overtime it might then be open to him to work hours similar to those that he currently works. Again it will be a matter of his symptoms and his motivation. The needs of his family and his financial commitments may well vary over time as they do with most people. As he becomes older he may wish to gravitate into more supervisory positions or administrative roles to take advantage of his experience. This is seemingly not an avenue which is open to him in his current employment with a small family business. It is, however, a common human experience for persons engaged in heavy physical work to moderate their physical activity in mid to later working life in seeking a promotion of one kind or another. In such circumstances the plaintiff might cope very well indeed with working long hours.
Following the accident the Plaintiff had severe headaches lasting up to six hours at a time. He still has these but less frequently – perhaps twice a month. He takes analgesics but seemingly in small quantities. A box of 24 Panadeine tablets might last up to three months.
He used to play touch football once a week but has had to give that up. He has difficulty lifting or playing boisterous games with his young sons.
He has difficulty driving long distances. When the family goes for drives on weekends his wife will often drive. He also must exercise care in his sleeping position. He uses multiple pillows to avoid cramping up.
His principal problem though is in heavy lifting, particularly at work. He was asked in examination in chief:
“Where do you have problems now in terms of your injuries?-- Just the neck.
What about your right shoulder?-- Yeah, the neck and right shoulder.
Where is the pain? Is it there all the time or some of the time? How would you describe it?-- Most of the time. It’s hardly ever not there.
What sort of things aggravate it?-- Lifting, pretty much lifting is the main thing.”
The diagnosis of musculoligamentous injury was confirmed by MRI scan and is referred to in Dr Gillett’s report Exhibit 5. Dr Gillett in his first and third reports Exhibits 4 and 6 thinks that with care and diligence he can continue in his occupation. He concludes in Exhibit 6:
“His condition is stable and stationary. His condition requires the ongoing diligence of postural techniques, exercise and strengthening modalities. He will have ongoing discomfort and problems in daily life, recreation and employment as he has at present but he will be able to participate with those activities, putting up with the pain and discomfort and living with the condition. He has, in my view, been left with a 5% permanent impairment of bodily function due to the consequence of this accident.”
With the exception of an estimate of 2%-4% loss of bodily function, Dr Boys’ opinion is virtually indistinguishable from that of Dr Gillett. The difference between 4% and 5% is negligible. If this Plaintiff takes sensible care and maintains his exercise program he will be in a position to control his symptoms to a large extent.
Unfortunately, the major problem confronting him is the low standard of his work environment. It requires no expert opinion in this day and age to establish that confined work places particularly involving heavy machinery are notoriously unsafe. The almost complete absence of proper mechanical lifting devices – where lifts of up to 80kg are required many times a day is simply indefensible. Shared lifting is no adequate answer. The perils of shared lifting are a well known work hazard in their own right.
I must observe that in making these critical observations of the work environment I have not heard from the employer. I am dependent upon the account given by the Plaintiff and on the obvious concern expressed by the two orthopaedic surgeons when told details of the above by the Plaintiff’s Counsel.
Quite obviously the Plaintiff has been made more vulnerable in the future as far as his employment is concerned. He might well be required to disclose the fact of his injury to future employers who then might be cautious about employing him. In his injured state he might be considered more vulnerable to further injury. He is unsuitable for work as a brickies’ labourer or a die caster – however unlikely a return to these former jobs might be. He might be considered unsuitable for other laborious work or work requiring prolonged driving.
The approaches taken by opposing Counsel in assessing damages for future loss of earning capacity are wildly different. Of the two I prefer the approach taken by Defence Counsel of arriving at a global figure although the figure submitted by the Defence might be considered far too low.
The Plaintiff gave a pessimistic reply to a question in evidence in chief concerning his future. He expressed doubt as to whether he could keep working in his present job for more than another two to three years. This seems somewhat at odds with the medical opinion which suggests that with sensible care he can continue with his employment. In two to three years time the financial demands on his family are unlikely to be any less.
There is, of course, the option of changing jobs. Were he to do this there would be a question mark over the amount of overtime that might then be available to him. If he were to change jobs it would hopefully be into a better work environment which would have obvious benefits to his capacity to work through to normal retirement.
In these circumstances it is inappropriate to be capitalising a figure of $300 per week for a period of 16½ years commencing in 2½ years time. There is no satisfactory proof that the Plaintiff will, in fact, give up overtime. The doctors say that his condition is stable even conceding that there might have been a slight improvement over the last two years. The fact is that despite discomfort he has done the job including the overtime. The fact that he expresses a gloomy concern as to how long he can keep it up does not determine the issue. Dr Gillett thinks he can continue doing it if he takes care and more importantly preserves the motivation.
If his employer were to revamp the workshop he might find himself able to continue his present hours indefinitely with something in reserve. If he were to change employment to another workshop with, as Dr Gillett put it, “a better ergonomic type of employment” he might work similar hours if they were available. He might gain avenues of advancement in the process that don’t presently seem open to him. There are, therefore, many imponderables. One of these certainly is the possible loss of overtime and from that point of view the loss of approximately $300 per week net would be the consequence. The likelihood of that occurring for reasons associated with his injuries would seem to be fairly small.
I accept the submission of the Plaintiff’s Counsel that a figure of $30,000 is warranted for pain and suffering and lost amenities. I further accept the interest figure submitted of 2% on $12,000 for 2.65 years resulting in a figure of $636; past economic loss is nil. The better view is that the few hours taken off work in the days following the accident were covered by sick pay. I assess his damages for future economic loss in the global sum of $25,000 and allow loss of superannuation on that sum at 9% which is the figure submitted on behalf of the Plaintiff.
I allow past care and assistance for the period which was agreed which totals $1,008. I do no allow anything for future care. I allow $200 under the head of future medication. Special damages are agreed at $332.55 and interest on $250 of that sum at 5% since the accident produces a figure of $33.10. The total is $59,459.65. I give judgment for the Plaintiff against the Defendants in that sum. I order that the Defendants pay the Plaintiff’s costs of and incidental to the action to be assessed. I dismiss the cross action and order that the Plaintiff pay the Defendants’ costs of and incidental to that action to be assessed.
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