Mrs Jackson v James Gino Favotti No. SCGRG 93/5 Judgment No. 3928 Number of Pages 14 Damages

[1993] SASC 3928

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA MOHR(1), BOLLEN(2) AND MILLHOUSE(3) JJ

CWDS
Damages - measure and remoteness of damages in actions for tort - Econonomic loss - allowance for future medical expenses - unsatisfactory employment record prior to accident - future employment prospects uncertain - injuries not sufficient to prevent respondent working after initial six month period - future medical care and physiotherapy counterproductive to respondent's full recovery - appeal allowed - future economic loss reduced from $15,000 to $5,000 - $500 for future medical and physiotherapy expenses disallowed - total judgment sum reduced from $33,420 to $22,920.

HRNG ADELAIDE, 13 April 1993 #DATE 13:5:1993
Counsel for appellant:     Mr D W Smith
Solicitors for appellant:    Gun and Davey
Counsel for respondent:     Mr G A Britton
Solicitors for respondent: Esau Meister and Associates

ORDER
Appeal allowed.

JUDGE1 MOHR J The appellant complains of certain aspects of the assessment of damages made in favour of the respondent. 2. The action came on for hearing in the District Court on 21 October 1992 for the assessment of damages, the apportionment of liability having been agreed between the parties. 3. The respondent suffered his injuries as a result of a road accident which happened on 25th September 1991. The respondent was then 36 years of age and 37 years of age at the date of trial. 4. The learned trial Judge was not impressed by the respondent as a witness. He said at the outset of his judgment:-
    "The plaintiff was not an impressive witness.
    I closely observed his demeanour in the witness box and,
    whilst I am not prepared to find that he was
    deliberately untruthful, I am quiet satisfied that, on
    some occasions, he was either deliberately unhelpful or
    deliberately evasive. In addition, his evidence (at
    page 21 of the transcript) concerning his unemployment
    record prior to the accident is plainly inaccurate. In
    short, I have considerable reservations about acting on
    the plaintiff's testimony unless it is supported by
    either evidence which I regard as both credible and
    reliable." 5. Various medical witness were called and in the result his Honour accepted and relied upon the opinions of Dr Eriksen and based his findings on his evidence and that of the respondent where it was supported by that of Dr Eriksen. 6. Specific findings were made and I set them out hereunder:-
    "1. That, as a result of the accident of the 25th
    September, 1991, the plaintiff suffered injuries to his
    neck which were mainly 'of a myo-fascial nature of the
    extensor musculature to the right side of the cervical
    thoracic junction'.
    2. That, as a result of the accident, the plaintiff
    suffered from tension headaches.
    3. That the plaintiff's neck injuries and headaches
    would have prevented him form working for at least six
    months subsequent to the accident.
    4. That the plaintiff is still experiencing neck pain
    and tension headaches at the present time.
    5. That, upon resolution of this litigation, the
    plaintiff's 'tension headaches and his current
    symptomatology' will improve.
    6. That the plaintiff's neck symptoms and tension
    headaches will continue, 'but we would still expect
    recovery in the indefinite future'.
    7. That it is likely that the plaintiff will make a
    full recovery from his neck injuries and tension
    headaches within the next three to four years.
    8. That the plaintiff's neck injuries have prevented
    him from playing golf and ten pin bowling, and that his
    sporting activities will continue to be curtailed for
    the next two years or so.
    9. That the plaintiff had a pre-existing injury to his
    lower back (or lumbar spine) which, apart from the first
    two or three days subsequent to the accident, was not
    aggravated by the accident of the 25th September, 1991.
    10. That it has not been alleged (or established) that
    the plaintiff has suffered from any 'psychological
    problems' as a result of the injuries suffered in the
    accident of the 25th September, 1991." 7. Some of those findings were challenged on the hearing of the appeal which was directed at two aspects of the assessment namely the award for economic loss and the allowance for future medical expenses. 8. The respondent had an unsatisfactory employment record prior to the accident, nevertheless his income tax returns for the three years preceding the accident were:- 1989 $6.187.00, 1990 $12,356.00, 1991 $26,573.00. His main area of employment had been as a long distance transport driver. He had at the date of trial been employed for about three months but expected to commence work for a firm "F.B. Transport" on the day after the accident. That firm ceased trading due to financial problems in February 1992. As his Honour found this makes it unlikely that the respondent would have worked for that firm for the whole of the six months following the accident. The significance of the period of six months being that that was the period of total disability from work due to the injury to the muscles of his neck and consequent tension headaches. Whether in the event of F.B. Transport ceasing to employ him he would have obtained other work is problematical. Nevertheless the respondent did work during 1992 for a Mr Breen for a period of 8 weeks and earned about $4,000.00 or an average of $500.00 per week gross. This gives some indication of his earnings if he was in employment. Notwithstanding the criticism directed at the way in which the respondent carried out his duties with Mr Breen. 9. The difficulty, apart from the respondent's residual disabilities whatever they may be, was that the respondent, had prior to the accident had only intermittent work. Notwithstanding that he had earned $25,573.00 in the financial year preceding the accident. An allowance of $7,500.00 was made for past economic loss. 10. Taking into account the respondent's work record and the fate of J.B. Transport that sum for a period of total disability of six months is reasonable. It is the figure of $15,000.00 for future economic loss which is questionable. 11. The finding that the respondent would suffer the effects from his neck injury and tension headaches for a period of three to four years does not accord with the medical evidence which accords with the previous finding that with the end of litigation recovery from those symptoms would occur in "the indefinite future". Moreover Dr Eriksen in his evidence expressed this view:-
    "Q. When you saw him back in January of 1992, did you
    consider that he had any restriction on his working
    capacity at all.
    A. It's very difficult. I consider that his symptoms
    were genuine, and I consider that if he returned to
    working activity that he may experience recurrent pain.
    I would take the point of view that there is potential
    therapeutic value of returning to working activity, with
    the expectation that as he does so, that his pain has
    the likelihood to improve, and improve discomfort,
    rather than incapacitate him. My point of view would be
    that if he did return to work, and his symptoms did
    prove to be of incapacitating nature, it would be more
    likely to be explicable in terms of psychological
    problems, rather than physical problems.
    Q. Does that prognosis hold into the future as well.
    A. Yes.
    Q. I think he has given evidence that he attempted
    truck driving back in either late August or early
    September of this year, which exacerbated his neck
    problems.
    A. Yes
    Q. Would you consider him for that sort of work. Just
    to put that in context, it was a long trip to Alice
    Springs, perhaps not over the best of roads, in a heavy
    truck.
    A. I can only answer your question within my specialty
    of general surgery and orthopaedic medicine, and I think
    he is physically fit for those duties. I can appreciate
    he is going to develop symptoms. The severity of the
    symptoms, I believe, is a little unknown, but in the
    normal course of events I would expect him to be able to
    manage those working activities." 12. Having accepted Dr Eriksen as the witness to be accepted as accurately describing the respondent's condition that any diminution of the respondent's earning capacity could be expected after the initial period of six months. Rather work would have a therapeutic value. It was accepted that long distance driving and performing the respondent's other occupation as a diesel mechanic may result in some discomfort but not sufficient to justify not working. 13. In my opinion the evidence accepted by his Honour showed at best that the respondent may have had to take more rest times during driving a long distance than other drivers but not to any inordinate extent. This may if he was on a tight schedule have put him at some disadvantage compared with other drivers in applying for work, but given that all his symptoms would clear up "in the indefinite future" and that work would have a therapeutic value the allowance of $15,000.00 for future economic loss is to take too pessimistic a view of the respondent's prospects. Given that his average earning for the three years prior to the accident were $15,000.00 per annum it predicts a loss of a complete year in the next three years or so and given also that the respondent had not been in regular employment that again would seem to be taking an unduly pessimistic view of the matter. 14. Some allowance should be made for the period during which eventual recovery would be made and allowing for the respondent at time feeling unable to continue with a particular job in my opinion $5,000.00 would be a reasonable allowance. 15. In so far as an allowance of $500 for future medical and physiotherapy expenses was made this flies in the face of Dr Eriksen's opinion that both the taking of analgesics and having further physiotherapy would be counterproductive to the respondent's full recovery. There would appear no justification for such an allowance. I would allow the appeal directed to this item of damage. 16. In the result I would allow the appeal by reducing the allowance for future economic loss from $15,000.00 to $5,000.00 and disallow the sum of $500.00 for future medical and physiotherapy expenses. Thus the judgment sum would be varied by $10,500.00 from $33,420.00 to $22,920.00.

JUDGE2 BOLLEN J This is an appeal by the defendant in an action in the District Court. The plaintiff (the respondent here) claimed damages against the appellant for injuries said to have been sustained in a road accident which happened on 25 September, 1991. 2. Liability was agreed between the parties upon the basis that the respondent recover 90% of "his" damages. The matter came on for the assessment of damages. 3. The respondent was born on 18 February, 1955. He left school at 15. He did his apprenticeship as a panel beater. But he did not much work as a panel beater after completing that apprenticeship. He worked as a mechanic and as a driver - including driving heavy vehicles into other states. He said that he worked last before the accident for a transport company named Camilleri Management Services. He worked for that company in February, 1991 until about the end of June 1991. He was dismissed. Camilleri Management Services ceased to do mechanical work. That means that at the time of the accident the respondent had not worked for about three months. The respondent swore that he was due to start work on the day after the accident for a firm called F. B. Transport Services stationed at Elizabeth. The plaintiff understood that that firm wanted him to put a number of vehicles into roadworthy condition. The respondent claimed that the injury sustained in the accident prevented his taking up that job. He said that F. B. Transport had ceased operating from Elizabeth. 4. The plaintiff tendered income tax returns. They were received in evidence. There was cross-examination based on the returns. Suffice it to say, as did the learned trial judge, that the evidence of the respondent about his employment record prior to the accident was "plainly inaccurate". The learned trial judge found that he could not act upon the evidence of the respondent unless it was supported by other reliable evidence. He had not been an impressive witness. He was acquitted of outright lying but held to be unreliable. 5. The respondent said that he suffered from pain in the neck and headaches, all of which restricted his capacity to work and to follow some activities. But he had regularly played squash since the accident. No one asked him whether the playing of squash hurt him. 6. The respondent was examined at Lyell McEwen Hospital after the accident. Next day he consulted a general practitioner who diagnosed a soft tissue injury to the neck. Later the respondent was treated by another general practitioner and referred to surgeon, Mr. R. Hunter. 7. The respondent was examined in the interests of the appellant by Mr. Eriksen, a surgeon. Mr. Eriksen saw the respondent on one occasion only. The learned trial judge accepted his evidence and accepted it wherever it differed from the other doctors. The learned trial judge called Mr. Eriksen "a very impressive witness". The learned trial judge was undoubtedly entitled to accept the evidence of Mr. Eriksen. 8. Mr. Eriksen saw the respondent in January, 1992. In his report of 21 January, 1992 Mr. Eriksen wrote:
    "He indicated that he experiences right upper shoulder
    pain and, to a lesser degree, left upper shoulder pain
    and right mid-posterior neck pain. The pain has not
    significantly improved since the time of injury and is
    proportional to physical activities. It is mainly
    provoked by driving activities and if he drives for more
    than ten to fifteen minutes' duration, he experiences
    neck and shoulder pain which lasts for two to three
    hours' duration. In the normal activities of daily
    living - he is not working at this stage - he is not
    experiencing any significant symptoms. The pain also
    wakes him up at night on a fairly regular basis. He
    usually gets up two to three times per night and walks
    around for ten to fifteen minutes because of neck and
    shoulder pain and sometimes goes to sleep on a couch
    because it is more comfortable than lying in bed. He
    is, by training, a mechanic, mainly a diesel mechanic
    and he has a certificate of sickness from Dr.
    Nitchingham. He separated from his wife only recently
    and he is able to care for himself. He plays golf but
    has only played one game of golf and was only able to
    play three holes because of upper spinal pain. He
    sustained an injury to his low back when he was working
    for Holbrooks Meats ten years ago as a driver/deliverer
    and was off work for four weeks' duration. He told me
    he pulled a muscle in his back. He recovered after that
    period of time but his job was terminated but he did not
    obtain wages for the time off. He does not believe he
    has had any significant problems since. He did develop
    a degree of low back pain after this accident but this
    resolved after two to three days. On examination, he
    was a quietly spoken person who presented in a subdued
    manner. He was 6'2" and weighted 110 kg. He indicated
    the pain he did experience was mainly over the muscles
    of the right upper posterior shoulder and the extensor
    musculature of the right side of the lower half of the
    cervical spine. There was no specific tenderness or
    spasm to palpation of the muscle. There was guarded but
    full range of flexion and extension to voluntary
    movement in the erect position. There was slight
    restriction of the last few degrees of angulation and
    rotation with pain experienced over the right side of
    the posterior spine over the lower two cervical
    segments. In testing passive mobility in the supine
    position, there was loss of the last few degrees of
    rotation and angulation with some end point spasm.
    There was full elevation of the shoulders and his blood
    pressure was 120/80. There was normal spinal alignment
    of the lumbar spine and there was a full painless of
    movement of the lumbo-sacral spine in the erect
    position. He had in his possession x-rays taken of his
    cervical spine in September, 1991. There was no x-ray
    report accompanying these x-rays but I viewed these
    x-rays and did not think they showed significant
    abnormality and a CAT scan taken in December, 1991 did
    not show any significant abnormality although the
    quality of the films were poor due to his large muscle
    bulk. I am not able to identify any pre-accident
    medical condition. The nature and extent of injuries
    sustained by this person are mainly that of a
    myo-fascial nature of the extensor musculature to the
    right side of the cervical thoracic junction. He has
    ongoing symptoms which appear to be that of a postural
    nature and probably reflect also an associated degree of
    tension myalgia. I am unable to corroborate his
    symptoms by relevant physical findings. He is not
    receiving any active treatment at this stage except that
    he walks on a regular basis each day and he is taking
    analgesic tablets. I think he should get himself
    aerobically fit, lose some weight, tone up his general
    body muscle and undertake stabilising and strengthening
    exercises of his upper spine. I believe that he would
    be discomforted by not specially incapacitated in
    returning to working activities at this stage. He is
    not alleging he has suffered from any significant back
    injury as a result of this accident. The back injury he
    sustained ten years ago was of a minor muscle nature
    which resolved in the short term and has not given him
    any disability since that stage." 9. The respondent had an earlier injury to the low back. He mentioned it to doctors. But then on the evidence of Mr. Eriksen the learned trial judge correctly found that the low back was not aggravated by or in the accident. 10. The evidence of Mr. Eriksen suggests that on the day on which he saw the respondent (24 January, 1992) the respondent suffered from little disability. Mr. Smith, for the appellant, submitted that it was proved that the respondent suffered from no more than minor aches. In his Outline Mr. Smith wrote:
    2. In order to award the respondent (plaintiff) damages
    for future economic loss, being specifically for loss of
    earnings and earning capacity, the evidence needed to
    satisfy the learned trial Judge that there was an
    impairment or diminution of the appellant's capacities
    which necessarily would affect his ability to work or
    compete for work and that such impairment or diminution
    would cause economic loss. (See Mann v Ellbourne (1974)
8 SASR 298 per Bright J at pp.308, 309).
    3. Bearing in mind that the learned trial Judge:
    (i) expressed reservation about the reliability of the
    respondent's testimony (see judgment p.155, line 48);
    and
    (ii) unreservedly accepted the evidence of the general
    surgeon Mr Erik Eriksen (see judgment p.156, line 38,
    and p.158, line 23), the thrust of which was that the
    respondent in January 1992 was fit for work (see
    judgment p.161, line 30, see also evidence pp.78, 79
    there should have been no allowance at all for future
    economic loss." 11. But those submissions are, in my opinion, not altogether consistent with the evidence of Mr. Eriksen. Nor do those submissions take into account evidence of the respondent supported by a witness named Breen. 12. Breen was the employer of the respondent at a time about eleven months after the accident. He was then the manager of Barcroft Transport. He said that in May, 1992 the respondent worked for Barcroft for some six weeks. He worked as a driver. He drove a road train to Darwin and back. It took him five days. The usual time is two days. The respondent spoke of stopping to rest or exercise to deal with pain and discomfort which he was suffering. The plaintiff also did some mechanical work for Barcroft. Breen gave this evidence:

    "Q. During that initial time that you've talked about,
    back in I think you said May of this year -
    A. Yes.
    Q. Or thereabouts, did you observe Mr Favotti when he
    was working.
    A. Yes, I did.
    Q. What observations did you make of him working.
    A. He was slow, and most of the work that he was doing,
    he was just incapable of handling the workload on the
    job.
    Q. What, in particular, did you see where he appeared
    to be incapable of handling the work.
    A. You could see if he was getting out from under a
    motor or that, you know, he'd be very slow in
    straightening up, and he'd ring up some mornings and
    just couldn't come into work because he was just
    incapable of doing it.
    Q. On those mornings did he speak to you.
    A. He said quite a few times his back and that were
    playing up.
    Q. Now is part of the work that he had to do, did it
    include lifting the heads off motors.
    A. Yes. Q. And what weights would those heads be.
    A. Some of those heads would be up to 60 to 100 kilos.
    Q. Did you have anything in the nature of light work at
    Barcroft.
    A. No, mechanical work was all heavy. Mechanical heavy
    work, especially on road train trucks.
    Q. How did it come to pass that he left your employment
    after that six weeks.
    A. Well, I just had to talk to him and said well I
    could see that he couldn't handle the work and I had to
    lay him off.
    Q. But you subsequently employed him.
    A. Yes, I knew he was on hard times and he needed money
    and that, so I said 'oh well, give you a trip to Darwin'
    and he couldn't handle that too well either because the
    Darwin manager had to unload the trailers for him when
    he got up there.
    Q. But on his return he did some more mechanical work
    for you.
    A. Yes, I learned someone - after I put Jim off I had a
    full-time mechanic on and I had a fairly big workload
    and I needed someone for a couple of days and that's
    when I asked him if he was interested and he said 'I'll
    have a go again'. I explained to him then it was only
    to cover the workload that I had.
    Q. How did it come about that he stopped working for
    you on that second occasion.
    A. We caught up with the work that we had to do.
    Q. And during the time that he was working doing the
    mechanical work after the return from Darwin, did you
    observe him working again.
    A. Yes, I did.
    Q. What did you see then.
    A. He was still having trouble, just generally, the way
    you see people move and that, you know. If he was on
    the floor and that, he couldn't get up or he couldn't
    straighten up very quick, couldn't lift anything,
    couldn't move anything without any assistance. He was
    just generally slow in his performance and that." 13. The respondent spoke of pain and restriction. He said:
    Q. What work have you done for Barcroft since the
    accident.
    A. Mechanical repairs and driving.
    Q. How much work have you done for them.
    A. Total of about eight weeks.
    Q. Was there a period in the first half of the year
    when you worked for Barcroft.
    A. Yes.
    Q. What work were you doing then.
    A. All mechanical work, repairs.
    Q. Do you remember how many weeks that was.
    A. About four weeks, four to six weeks.
    Q. How much were you earning in that first period when
    you worked for Barcroft this year.
    A. I finished off about 3,300 for the first period.
    Q. Were you paid on a weekly rate or did you understand
    it to be a daily rate.
    A. Daily rate.
    Q. How much was the daily rate. A. $100 a day.
    Q. Have you done some further work for Barcroft in the
    months of August or September.
    A. Yes, I did a trip to Darwin with a road train and
    back.
    Q. Do you know when that was.
    A. August.
    Q. What were you asked to do.
    A. Pull two trailers up to Darwin, unload them, load
    them up in Darwin and come home again.
    Q. Was that something you had done before.
    A. Yes.
    Q. On this occasion were you able to perform that work.
    A. Not properly.
    Q. What difficulties did you have.
    A. By the time I got to Darwin I couldn't stand up, I
    couldn't move.
    Q. How long did it take you to get from Adelaide to
    Darwin.
    A. Five days.
    Q. Was that the time that you were expected to
    undertake for that trip.
    A. No, it was supposed to be two.
    Q. When you were driving from Adelaide to Darwin did
    you drive in a different manner from how you would
    before the accident.
    A. No.
    Q. Did you drive the same number of hours in any one
    stretch.
    A. Drove more.
    Q. Have you said you took longer on this trip.
    A. Same distance.
    Q. Are you saying on each stretch you drove more hours
    on this occasion than you did if you had been doing it
    before the accident.
    A. Well, I pulled up more times than I normally do,
    that is why it took so long.
    Q. Did you have some rest stops that were longer than
    you would ordinarily.
    A. Yes.
    Q. How much were you paid for driving from Adelaide to
    Darwin.
    A. I cleared $915 after tax.
    Q. Have you done any other work for Barcroft besides
    that initial work as a mechanic and then driving the
    road train.
    A. Yes, about five days local.
    Q. Was that five days of mechanical work.
    A. Mechanical work.
    Q. When did you do that work.
    A. Straight away when I came back from Darwin.
    Q. Is that in just August or September of this year.
    A. Yes.
    Q. When you were doing the mechanical work did you have
    any difficulties.
    A. Yes.
    Q. What were those difficulties.
    A. Just couldn't lift things, couldn't get under
    trucks, couldn't move.
    Q. Before the motor vehicle accident in September 1991
    had you ever had difficulty in getting under trucks or
    lifting mechanical items.
    A. No." 14. The learned trial judge was, as I have said, not prepared to accept the evidence of the respondent unless it was supported by reliable evidence. He found Breen to be a truthful and accurate witness. There was evidence from a Mrs. Eldridge that the respondent had not been back to ten pin bowling since the accident. There is then evidence which does support the respondent about discomfort and restriction in his work. Breen said (as I emphasised) that they had to put the respondent off. Later out of sympathy he employed the respondent again for some other work although he did not think that his capacity made him a satisfactory employee. 15. The respondent had worked, albeit under difficulties, since the date of the accident. No one suggested that he had lost all capacity to work and earn. But Mr. Smith he had lost none of that capacity. 16. That the respondent was at the time of trial still suffering from some pain in the neck and tension headaches really admits of no doubt. Mr. Eriksen thought that the respondent was genuine, that is to say that he really experienced the pain and discomfort and restriction of which he spoke. Mr. Eriksen thought that the respondent would be "discomforted but not specifically incapacitated by returning to working activities" as at January, 1992. He spoke of the poor posture of the respondent, of the need for him to increase his general fitness. Mr. Eriksen was cross-examined about the driving of a road train to Darwin. The respondent and Breen said that it had taken the respondent five instead of two days. Under cross-examination Mr. Eriksen gave this evidence:
    Q. You have said also, in answer to a question put by
    my friend Mr Lovell, that you would expect this man
    would develop symptoms if he undertook a long driving
    trip. I think Mr Lovell said to Alice Springs. In
    fact, the plaintiff has told us it was even further, to
    Darwin.
    A. Yes.
    Q. But do I understand you to say notwithstanding those
    symptoms he should be able to complete the task.
    A. Yes.
    Q. Would you agree with this, that really in each case
    it becomes a matter of what the individual can cope with
    as to how severe the symptoms are and how far they can
    hang in with that activity.
    A. Sure, it really does mean that. If a person has an
    extremely low pain threshold he may not be able to do
    that. I think that then you have to - I am just talking
    in the normal course of events.
    Q. Would you agree that if a person developed symptoms,
    neck symptoms, on driving a truck in the way I have
    described, that could well be a serious matter for them.
    A. Yes, but in the normal course of events I maintain
    he should be able to manage. He might have to get out
    and he might have to move his neck around. He may have
    to take more frequent breaks than usual. That is the
    thing. I am saying with some degree of modification I
    would expect him to be able to manage on a purely
    physical basis.
    HIS HONOUR Q. Would you expect him to take five days
    for the trip when he normally would do it in two days.
    A. No.
    Q. Would you expect him to take somewhat longer than
    say two days.
    A. Yes, I might expect him to take a couple of hours
    longer than he might normally. I wouldn't expect him to
    have long breaks off. I would envisage, in my
    perception, him having to stop and rest his truck and
    move his neck around for five minutes, but not have to
    stop for some hours or a day or any prolonged period of
    time.
    Q. Can I ask you to assume that the plaintiff took 24
    Panadol while undertaking that trip, does that suggest
    to you that he may, indeed, have suffered what were
    quite severe symptoms.
    A. As I said to you before, I said to your friend
    before, I believe if the symptoms are of a severe and
    incapacitating nature my explanation is it is more
    likely to be due to psychological rather than physical
    problems." 17. This evidence certainly shows that the respondent was fit to drive heavy vehicles on long trips. Mr. Eriksen's evidence does not establish that the respondent could not lift heavy weights. He said that he knew that much of the work of the respondent prior to the accident consisted of lifting heavy weights. Yet Mr. Eriksen thought in January, 1992 that the respondent would be "discomforted but not specifically incapacitated" on returning to work. 18. The learned trial judge decided that the neck disability constitutes a loss of earning capacity over the next three to four years. Mr. Eriksen thought that a return to work would have a therapeutic value and cause lessening of discomfort. It was reasonable for the learned trial judge to find that the respondent would recover. I do not know that there is a strong basis for a finding that recovery would happen within three or four years. But I do not think that matters. In any event it is but an approximate time. In my opinion the chance to exercise capacity to earn is what matters here. The respondent can work as a driver or mechanic and no doubt at other work. He suffers some restriction and discomfort. I think that that means that the respondent is at a disadvantage on the labour market. The learned trial judge correctly held: "There is a possibility that, at some time (or times) in the next three to four years, the plaintiff may be thrown on to the labour market where his job capacity would be restricted because of the disability arising out of his neck injury. In my opinion, the plaintiff is entitled to an award to compensate him for this possibility. 19. An allowance must be made for the limitation of his working capacity and the restriction that will place upon the avenues of employment open to him. The quantification of the plaintiff's future economic loss is, in the circumstances of the case, unusually difficult, but I must do the best that I can upon the information at my disposal. In assessing the plaintiff's claim for future loss of earning capacity, I must have regard to the usual contingencies such as early death or early voluntary cessation of work, and I must also have regard to the fact that, prior to the accident, the plaintiff displayed an inconsistent employment history." 20. The respondent is restricted in his capacity to "compete for work" (to use Mr. Smith's phrase in paragraph 2 of his outlines). The respondent will not be restricted nor suffer discomfort for the rest of his life. As he gets work, and does the work, so according to Mr. Eriksen he will improve, that is will have less restriction and less discomfort. But all that is dependent on his getting and holding down work. Prospective employers may very well refuse to employ him when they hear his history, when they know he has had injury and litigation about it. I think there is a real probability that some employers would turn him down. The respondent is I think, likely to have intermittent work. It is for that loss of the full opportunity to exercise earning capacity that he is entitled to compensation. I refer to the passage from his reasons which I have already quoted to demonstrate that the learned trial judge took all relevant matters into account. 21. On all the acceptable evidence I think that, despite the lack of much basis for the period, the learned trial judge did not fall into error in thinking of the loss continuing for something like three to four years. I repeat it is but an approximate time. On the evidence of Mr. Eriksen the more work the quicker the recovery. But work will not be easy to get and hold. 22. There must then, be an allowance for loss of earning capacity. The primary attack by Mr. Smith failed despite the earnest vigour of his submission. 23. The amount of $15,000 is in my opinion, generous but not manifestly excessive. I can envisage a need for something like $15,000 to replace loss from the reduced capacity to earn, from reduced capacity to compete for work. I suppose a driver or mechanic could earn no less than $20,000 per annum. If the respondent gets jobs producing something like $15,000 only in each of three years there is $15,000 already. Of course that is very simplistic reasoning. But it is a useful check. In all the circumstances, whilst acknowledging the generosity of the amount, I would not interfere with the allowance of $15,000 for loss of future capacity to earn. 24. The learned trial judge awarded $500 for future medical and physiotherapy expenses. Mr. Smith submitted that there is no sufficient evidence to support any allowance for these, (as he suggested) supposed future expenses. 25. Again we must turn to Mr. Eriksen. The general practitioner, Dr. Nitchingham, thought that future physiotherapy would be of assistance. But on the findings of the learned trial judge that opinion cannot prevail if Mr. Eriksen thinks the contrary. Mr. Eriksen gave this evidence:
    Q. Do you see a need for any physiotherapy, either at
    the current time, or ongoing into the future.
    A. I don't see a need for hands on physiotherapy. I
    think he may need some guidance in undertaking a general
    fitness program, or some advice in specific exercises to
    take, but I think that that would be consultative,
    rather than active physiotherapy.
    Q. I think some of the evidence has been that the
    physiotherapy assisted his symptomatology in the short
    term, but his symptoms returned.
    A. Yes.
    Q. Is that an indicator that ongoing courses of
    physiotherapy are counterproductive.
    A. Yes.
    Q. Do you see the need for any ongoing medication.
    A. My own belief is that medication in these situations
    has the potential to give rise to complications, and I
    believe that it is quite important to get them off
    medication, and if they need pain relief, to get it by
    non analgesic methods. I can appreciate if he had an
    impaired sleep pattern he may need some muscle
    relaxation to sleep at night, but I, myself, don't
    advise him to take analgesic tablets on a regular
    basis." 26. I think Mr. Smith is correct. There is no acceptable evidence of any need for future medical or physiotherapy treatment. 27. It is not the province of this court to fine tune or consider too nicely any small allowance in an award. But if an allowance be made without evidence to support it this court is duty bound to interfere. I would set aside the allowance of $500. I would, therefore, allow the appeal to the extent of reducing the assessment of damages by $500. That reduces the assessment to $32,920. That in turn reduces the judgment to 90% of $32,920=$29,628. Interest was allowed at $400. Judgement should now be entered for the respondent in the sum of $30,028.

JUDGE3 MILLHOUSE J I have read in draft the Reasons of both my learned brothers. That puts me in a difficult position. They come, each by completely acceptable reasoning, to a different conclusion. The learned President would reduce the allowance for loss of future earning capacity from $15 000 to $5 000. My brother Bollen while "acknowledging the generosity of the amount" would not interfere with it. 2. The evidence was indefinite. The learned trial judge could do not much more than make an educated guess. That is often the way. The allowance for loss of future earning capacity was very much at large. Having read the Reasons of the learned trial judge, heard the argument on appeal, considered the evidence and read my brothers' drafts I have come to the conclusion that we should not interfere with the assessment. 3. Thankfully, both my brothers consider, for good reason, that the respondent should not have anything for future medical expenses. I respectfully agree. 4. Accordingly I agree that the appeal be allowed and that the order of the Court be as Bollen J proposes.