Murray v North Queensland & Northern Territory Pastoral Pty Ltd

[1999] QSC 62

IN THE SUPREME COURT  No 187 of 1997
OF QUEENSLAND
TOWNSVILLE  

[Murray v North Queensland & Northern  Territory Pastoral Pty Ltd]

BETWEEN:                BRYAN  ALLAN MURRAY  Plaintiff

AND;  NORTH QUEENSLAND & NORTHERN

TERRITORY PASTORAL PTY LTD  Defendant

REASONS FOR JUDGMENT - CULLINANE J.

DATED THIS TWENTY- THIRD  DAY OF MARCH, 1999.

1. The plaintiff who was born on the 27th October 1957 claims damages for personal injuries which he alleges he sustained on the 10th January 1996 in the course of his employment with the Defendant.

1. The Defendant conducts Barkly Downs grazing property, a very large property in the far west of North Queensland.  The Plaintiff had been employed by the Defendant as station mechanic since July 1995.

1. It is the Plaintiff’s case that he was required by his superior, one Galley, to carry out work on a bore truck, the nature of which is fully described by reference to photographs in the first report of Mr McDonald  an engineer, which forms part of  Exhibit 4.

1. According to the Plaintiff he was required to carry out work  to fix  broken springs on the truck.  It is common ground between he and Galley that this work had to be done although Galley thinks he did not speak directly to the Plaintiff about it.

1. The Plaintiff says he was given no assistant to help with the work but says that for a time another employee, one Thomas, helped him perform part of the work but then left.

1. A trolley jack which would have permitted the work to be carried out without the weight or any significant part of the weight of  the springs having to be borne whilst any person was under the truck was present but not able to be used because parts to repair it had not arrived.

1. The Plaintiff says that after he had replaced some broken springs and reassembled  the spring as a unit the spring jammed as he tried to place it in position to fix it.  The unit’s weight exceeded 60 kgs.

1. The truck at this time was jacked up and the Plaintiff  was beneath it.  The front pin was  fixed whilst Thomas was present according to the Plaintiff but he then left.  The Plaintiff says that the spring became caught in the lugs on either side of the spring and it was necessary to push and pull at the spring, applying considerable force to get it free .  In doing this it would have been necessary to  bear much of its weight.  He was lying in the position shown in the photographs when he did this.

2. In the course of doing so he felt a sharp pain in his neck and pain down his right arm which caused him to stop the work he was doing.

1. It is Mr McDonald's opinion that for the Plaintiff to carry out the work in the way shown in his report would be to expose his spine to unreasonable loads in terms of accepted standards.

1. It is Mr McDonald's opinion that a trolley jack should have been used in performing that work and his supplementary report deals with this.   Alternatively,  an assistant to share the load should have been provided.

1. It is the Defendant's case that the Plaintiff did not sustain an injury in the way in which he claims to have.   Thomas gives evidence which directly contradicts the Plaintiff's account.  He says that in fact he assisted the Plaintiff to perform the task throughout and at no time did the Plaintiff appear to suffer any injury of any kind.

1. The Plaintiff says that over the next couple of days following the incident the pain persisted.  He says he completed the task with great difficulty and pain on the following day and that it took him a long time to do so.  During that time he told  Galley what had happened.  When things had not improved on the following day he says that he saw Galley again and asked him if he could arrange for him  (the Plaintiff) to be taken into Mount Isa.

1. On the following day Galley's daughter, Bianca, took the Plaintiff into Mount Isa where he saw Dr Kemp.  The Plaintiff remained at Mount Isa over the weekend but when he found on the Sunday that the symptoms in his shoulder and arm were getting worse and that he was suffering impairment of bladder control, he contacted Dr Kemp who arranged  for his admission to hospital.  On the Monday morning he was evacuated to the Townsville General Hospital where  he was seen by Dr Guazzo, a neurosurgeon.  An MRI on the 16th January 1996 showed a prolapse of the right C5-6 disc. 

1. The Defendant, through Galley, completed a workers' compensation report in form 3 (see Exhibit 16A and 16B).  In  that part of the report which required the employer to state briefly how the accident occurred, the following appears:  "Occurred while incorrectly lifting and fitting spring to truck."

1. This report, I am satisfied from Galley's evidence, was prepared after discussing the matter with Thomas notwithstanding the latter's denial that he was consulted about it.

1. It seems to me to be quite inconsistent with the defence which is now advanced, based upon Thomas's evidence.

1. The impression I formed of Thomas was of someone anxious to portray his former employer as free from any possible blame in relation to the Plaintiff’s condition.  In a couple of respects his evidence differed significantly from that of Galley.  I have already referred to the evidence about the preparation of the employer's report.  In addition he was adamant that the springs were not broken but merely distorted whereas Galley supported the Plaintiff's evidence that the springs were broken.

1. Whilst it will be apparent from  what appears later in this judgment, I have considerable reservations as to the veracity of some of the claims the Plaintiff makes in relation to the symptoms he suffers, I am satisfied that his account of what occurred  at the time he was injured is correct.  I accept that he was told by Galley to do the work and that he carried it out in the manner depicted and described in Mr McDonald’s report and sustained an injury to his cervical spine whilst doing so.

1. The Defendant conceded that if the Plaintiff’s account was accepted,  a finding of liability would follow.

1. The Plaintiff is entitled to succeed on the grounds of breach of contract, breach of statutory duty (s.9) and in negligence.

1. Although there are some allegations of contributory negligence, in my view the findings that I have made, dispose of this issue also.  There is nothing which would justify a finding that the Plaintiff was in any of the respects alleged, guilty of a want of care for his own safety.  He was performing work which he was required to perform in circumstances which unreasonably exposed him to a risk of injury.  In so far as the claim is contractual contributory negligence is irrelevant.  See Astley and Ors. v.  Austrust Pty Ltd (HC of Aust 4/3/99 A65/97 - unreported) .

1. Following the discovery of the prolapsed disc the Plaintiff underwent an interior cervical discectomy, and interbody fusion on 31 January 1996.  This was performed by Dr Guazzo. The Plaintiff continued to complain of pain in the neck, right shoulder and right arm with altered sensation in the right forearm after this operation as he had before.  The bladder symptoms of which he had earlier complained settled.  There was some complaint of decreased sensation in the interior aspect of the right leg with some weakness of it.

1. Because of the persistence of the symptoms in the neck, shoulder and arm, the Plaintiff was seen by Dr Rossato, a neurosurgeon and at Dr Rossato’s recommendation, he underwent a rhizolysis by posterior facetectomy.

1. There was for a short time some improvement in his symptoms but they reappeared. The Plaintiff has continued to complain of serious pain in the neck, shoulder and arm and a loss of sensation in the arm since.  He has not returned to work.

1. The Plaintiff and his family moved to Nanango in September 1997.

1. The Plaintiff is married with three young daughters.  The age of these children means that the Plaintiff would have had an incentive if not a need to remain in the workforce until well into his fifties.  He says that he intended to work until 65.

1. Two substantial issues which were litigated before me on the issue of damages were:

   (a)the state of the Plaintiff’s cervical spine prior to the incident of January 1996 and whether he would have been forced to cease work prior to a normal retirement age.

   (b)the extent to which the symptoms and the limitations of which he complains are genuine.

1. It was common ground amongst the various medical witnesses who were called,  that the Plaintiff sustained damage to his cervical spine which produces symptoms which would limit his capacity to work.  Differing views were expressed however as to the extent of the restriction upon his capacity to work.

1. The Plaintiff, when examined by doctors had told them that he had no previous problems with his cervical spine and had answered specific questions put to him by WorkCover to the same effect. 

1. There was tendered in evidence records of the Inner East Community Health Service, Richmond, Victoria.

1. These reveal that on 28th January 1987 he attended at the centre complaining of a stiff neck which had apparently developed on the previous day.  The notes suggest that he was not complaining of pain but that there was some parasthesia.  On 2nd December  1987 he attended complaining of what he describes as a frozen right shoulder.  The note refers to the spontaneous onset of rotator cuff syndrome.

1. On 12th February 1988, he is reported as complaining of right-sided pain of about one week’s duration.  This would appear to be related to the lower back and seems to have followed an incident in which he picked up a carton of paper.  On 29th February 1988 he is recorded as complaining of cervical pain radiating to the right side and some paraesthesia.  It seems that an x-ray was taken of the spine and the records show some  narrowing of the disc space.

1. There are records from the Cairns Base Hospital which deal with a motor vehicle accident in which the Plaintiff was involved in May 1984.  He is recorded as  complaining of a sore cervical spine and back as well as other injuries.

1. The Plaintiff in evidence before me, suggested that he had forgotten about the incidents until they were drawn to his attention.  He says that he did not experience any on-going symptoms and was able to perform quite heavy work during the intervening period.  His employment history is attached to his quantum statement.  He has had a variety of jobs, many of them being in remote areas including jobs on grazing properties such as the position he held with the Defendant.   An examination of his taxation records which also form part of Exhibit 4 shows that he was in full employment for the whole of 1994 and 1995 and his earnings during the period he was in New Zealand prior to that would suggest that he was in employment for most of the time that he was there.  Overall his employment record is a reasonably good one.    The Plaintiff has no formal qualifications as a motor mechanic or in any other field.

1. There is evidence from Galley and from Thomas that each had observed that the Plaintiff tended to keep his spine stiff when turning.  Galley relates an incident some couple of months before the Plaintiff’s injury in which he says he first noticed that.  He describes an incident in which the Plaintiff  turned his whole body.

1. Thomas refers to seeing an incident a couple of weeks after he (Thomas) started there in which he saw the Plaintiff turn the upper part of his body, keeping his neck stiff.   It was suggested that thereafter he noticed this to be the case.

1. On the other hand, there was evidence from two former employers.  Mr Ginn was his employer immediately prior to his commencing work with the Defendant.  The Plaintiff was employed as a service manager at Julia Creek Motors Pty Ltd and according to Mr Ginn showed no signs of any physical disability.  Mr Bean is the manager of a grazing property in Western Australia where the Plaintiff was employed for about six months as a boreman in 1993.  He also says that he noticed no signs of any neck or back problem during the time the Plaintiff was employed there.  Neither spoke in glowing terms of the Plaintiff’s quality as an employee.  There is a statement from Mr Laffin who was formerly a masseur in Mount Isa.  The Plaintiff came to see him in respect of a complaint to his lower back.  This was whilst the Plaintiff was employed by the Defendant.  He says that he massaged muscles in the Plaintiff ‘s lower back in the lumbar and gluteal regions which were somewhat stiff and tense.  He said that he examined the Plaintiff’s whole spine and found no other problem with it.

1. It is noteworthy that in Exhibit 16A and B Galley, when completing the workers’ compensation report included the following statement:

“Some question remains over the validity of this accident as the employee previously mentioned he was receiving physiotherapy for a complaint.”

1. I am satisfied this is the incident to which Mr Laffin refers.  It is noteworthy that Galley did not make any reference to the stiffness of the spine including the upper spine which he says  the Plaintiff exhibited whilst he was working for the Defendant.

1. The  work which the Plaintiff performed for the Defendant and for Mr Ginn and Mr Bean was physical work and in some respects quite arduous.

1. Whilst the radiological evidence of the Plaintiff’s spine, taken upon his admission to the Townsville General Hospital showed some degenerative changes in the form of an osteophyte and whilst it can be accepted that the disc which prolapsed must have been  to some extent degenerate, the effect of the medical evidence is  that the presence of such degenerative change is not necessarily productive of symptoms.

1. Neither Galley nor Thomas seem particularly well disposed towards the Plaintiff and I have already referred to Thomas’s apparent anxiety to portray the Defendant as being entirely free of blame in respect of any condition the Plaintiff may have.

1. The evidence as a whole does not persuade me that the Plaintiff was  suffering from any significant symptoms of his upper spine at the time of this incident.  I think the contrary is the case and  that he was able to perform quite heavy physical work without any significant difficulty.

1. Nonetheless the evidence does suggest that the Plaintiff was vulnerable to the development of problems in his cervical spine because of the degeneration present there.  I heard different views expressed by different witnesses.   The various specialists who gave evidence spoke of the difficulty in predicting whether and, if so, when the Plaintiff would or might have developed symptoms in his neck sufficient to restrict his capacity  for work.  Some spoke of the possibility that ordinary day to day activities might provoke disc lesions.  Dr Rossato referred to this  whilst pointing out that most people are able to complete a long working life of physical work without serious disc problems appearing.

1. As I have said I am satisfied that the Plaintiff was not suffering any on-going symptoms of significance in the cervical spine at the time of the accident and had carried out physical tasks for some years prior to that without problems.

1. On my assessment of the evidence, it is appropriate to apply a discount for the risk that as the Plaintiff got older he may have developed symptoms which limited his capacity to work.  It is not, in my view, appropriate to approach the assessment of damages as though this was probable.

1. So far as the second question is concerned, I am satisfied that the Plaintiff has at times  significantly exaggerated his symptoms and the degree of disability he has.  In particular in an Affidavit filed in support of an application for a speedy trial, the Plaintiff swore: 

2. “I experience constant and unremitting neck pain extending down my back and over my right shoulder blade into my right arm and also extending up into my head.  I have intermittent numbness and loss of power in my right arm and right leg.  I also have numbness and altered sensation in my left arm.  My pain is aggravated by any movement and the loss of power and sensation in my right leg has caused me to fall.  I also suffer extreme fatigue because any activity is very exhausting.  I am almost bedridden and recently my pain has been exacerbated to such an extent that I have been confined in a wheelchair.  I need help with my personal hygiene and assistance in most things and am unable to do any household tasks.  None of the doctors have been able to offer any satisfactory means of controlling my pain and because of the severity of the pain I am quite unable to undertake the normal activities of daily living.”

1. Shortly after this, he presented to Dr Low, an orthopaedic surgeon in a wheelchair and made somewhat similar complaints.

1. He saw Ms Purse an occupational therapist on 29th November 1998.  He described to her an ability to perform  activities to a much greater extent than the Affidavit and the report of Dr Low would have suggested he was capable of performing.  He had earlier described to her a substantial inability to use or move his right arm.  It was suggested to him that he told Ms Purse about his ability to cut  firewood with a chainsaw and to use a blockbuster (as he acknowledged he was able to in cross-examination) because he was aware that he was under surveillance.  He denied this although it would seem  from his evidence that he was aware from what people had said to him that he may have been under surveillance.

1. According to the Plaintiff, when he came to Townsville in August 1998 to attend a mediation conference with a view to the resolution of these proceedings, he encountered some turbulence on the flight back to Brisbane which caused him increased pain as a result of which he needed a wheelchair to leave the plane.  He describes in his statement and in evidence a journey to his home at Nanango in  which he was in a great deal of pain and needed to lie down from time to time.

1. It appears that following this he acquired a wheelchair and that he has used it from time to time.  It is not entirely clear why he has used the wheelchair.  There is some evidence that he may have used it during periods when he has had high pain levels and low endurance and has become tired quickly.  It was suggested in some medical reports that when seeing a number of doctors for the purposes of this action the wheelchair assisted him to get from place to place relatively pain free.

1. On the other hand, the Plaintiff started to complain in 1997 of occasions when  his legs gave way.  This happened on as many as twelve occasions in one month according to a report of Ms Purse.  This was a complaint that he made to Dr Low when he saw him in late 1998.  It appears he has not had any incidents of this kind in recent times.

1. The Plaintiff did not allege in the statement of claim that these incidents were the consequences of his injury.  It was suggested in evidence that the giving way of the legs might be the result of myelopathy but examinations of the spinal cord carried out in Townsville had not revealed any abnormality.  I refused leave to amend at the conclusion of the evidence to allege such a condition as being related to the injury.

1. There was no evidence before me which would satisfactorily identify the cause of any such tendency on the part of his legs to give way.  I am satisfied that for a period following the accident he had some decreased sensation and some weakness in the right leg and accept Dr Guazzo’s opinion that this could be attributed to pain. However, this is quite different to the condition which he claims developed in 1997.

1. Three videos were tendered in evidence.  Two of these show the Plaintiff sitting on the verandah of his house.  For most of the time he is reading a newspaper, holding it up in front of him with both hands.  Some other activity shows him using his right arm, apparently freely whilst carrying out some relatively minor activity.  The other video shows the Plaintiff on one occasion driving a vehicle, walking along a street and carrying a child in his left arm.  He seems to be using his right arm freely.   It also shows the Plaintiff in August 1998 at Townsville for the purposes of the mediation.  During this time he appears to hold his right arm by his side and make very little use of it.  He is shown in Brisbane leaving the terminal and then is shown at a McDonald’s restaurant in the Caboolture area.  He appears to be moving quite freely and to be using his right arm without any apparent difficulty.  He is, during all of this time, wearing a cervical collar.  Some of the medical witnesses, after having viewed these videos have made comments thereon.  I agree with the comments which Dr Low makes in his report on the subject.

1. The occasion on which the Plaintiff is shown at the McDonald’s restaurant is the occasion upon which he says he encountered the turbulence whilst in the plane and suffered a great deal of pain on the journey to his home.  There is no sign of this on the video on my assessment of it.

2. It should be mentioned however,  that whilst the Plaintiff is naturally right handed, a view of the videos overall does show a tendency to use the left hand as the predominant hand.  When lifting anything of any significance he uses his left arm.

1. The impression I have been left with overall is the Plaintiff has exaggerated his complaints.  I think that he is capable of using his right arm to a greater extent than he has at times claimed.  I think that he greatly overstated his situation in the Affidavit in support of the application for a speedy trial.

1. The Plaintiff’s explanation was that he suffers fluctuating symptoms and that on the occasion of swearing the Affidavit and when he saw Dr Low and Ms Purse he was suffering bad days.  I am prepared to accept that there is some fluctuation in the level of his symptoms and that at some times they are worse than at others.

1. In the absence of any evidence from  those having the Plaintiff under surveillance when he arrived in Brisbane on the flight in which he encountered turbulence, I accept his and his wife’s evidence that he did sustain some increased symptoms on the flight and that he left the plane in a wheelchair. 

1. Nonetheless the Plaintiff has been prepared to exaggerate his symptoms and disabilities on the occasions I have referred to  when,  I infer,  he thought it was to his advantage to do so.

2. The Plaintiff has had a limited education and on the assessment of Mr Walkley, a clinical psychologist, he is not likely to be suitable for sedentary white collar work or work with a computer - something which was canvassed to some degree in the evidence.  Nor is he a suitable candidate for re-training for such  work.  I note that none of his former superiors seemed to have been particularly impressed with him as an employee, something which I think is consistent with Mr Walkley’s overall assessment of him.

1. On my assessment of the evidence as a whole, the Plaintiff is no longer able to perform heavy physical work, demanding the use of his right arm and upper body.  This is the type of work in which he engaged in the main throughout his working life and would have been likely to remain in.   This has resulted, on my assessment, in a substantial destruction of his earning capacity.Nonetheless I do not think he should be regarded as totally unemployable as a consequence of his disabilities.  I think that Ms Purse has adopted a too pessimistic view of the Plaintiff’s residual earning capacity - she considers he has none.  On the other hand, I think that any residual capacity is quite modest and much less than Dr Gibberd and Mr Millich suggest.  I have already referred to the psychological assessment of Mr Walkley.  Any residual capacity has to be assessed in the light of that assessment and the fact that from time to time he will have more acute periods when it would seem he would not be able to work.  I also think it would not be possible for him to work in any position that required him to be seated for extended periods without having the opportunity to move around or which required the use of his right arm  on a prolonged basis.

2. The prospects of his converting any such residual earning capacity into income are quite limited and would either require an understanding employer or perhaps require his finding some niche where he could work on his own behalf.  I think any allowance for a residual earning capacity should be quite modest but some allowance should be made.

1. In the absence of any evidence that the Plaintiff has any condition which causes his legs to give way, or that he is vulnerable to this occurring in the future, it seems to me that it is appropriate to disregard this for the purposes of the assessment of damages. It was not suggested otherwise by either counsel in written or oral submissions to me.

1. The Plaintiff, I am satisfied, does suffer significant pain and discomfort and there has been a major impairment of his capacity to enjoy life and marital relations with his wife.  From a man who was able to perform heavy physical work, he is now limited in the activities that he can undertake although as I have made clear, not as limited as he has endeavoured to convey.  He has a sense of frustration and is depressed although as Prof James said, he does not suffer formal depressive illness.

1. I assess the Plaintiff’s general damages in the sum of $60,000.  I ascribe $20,000 of this for past loss.  I allow interest on $20,000 at 2% per annum for 3.18 years, producing an amount of  $1,272.

1. So far as past economic loss is concerned, the parties in their written submissions seem to proceed upon common ground in terms of the net weekly wage which should be adopted although in the case of the Defendant, the more recent rate is used and a higher figure than that contended for by the Plaintiff is reached.  I think it is appropriate to adopt the figures of the Plaintiff.  Had the Plaintiff remained in employment during this time he would have earned a net income of $71,931.60.

1. Neither has applied any discount to the figure each reached.  I think it would be appropriate to apply a small discount.  I allow $70,000 for past economic loss.

1. The Plaintiff  has received by way of income substitution,  the sum of $24,760.80 from the Workers’ Compensation Board and about $16,000 from the Department of Social Security.  The total of this is $40,670.80.  I allow interest on the difference between the amount of past economic loss and this sum, namely $29,329.20 for 3.18 years at 5% per annum, producing an amount of $4,663.34.  I allow by way of loss of superannuation entitlement, the sum of $4,900. 

1. So far as future economic loss is concerned, it is I think an appropriate starting point  to take the figure of $446.90 per week as representing the Plaintiff’s current earning capacity.   This has to be discounted both for the residual earning capacity to which I have referred and for the risk that the Plaintiff may have developed similar problems with his back during the currency of a normal working life.  In addition the usual contingencies and vicissitudes of life have to be allowed for. 

1. I allow the amount of $200,000 for future economic loss.  This is slightly higher than the present value of loss of $300 per week for 19 years and I think represents a reasonable approach to the assessment under this head.

1. I allow a loss of superannuation entitlement on this sum of $14,000.00.

1. There is a claim for past care and assistance based upon 12 hours per week for three years at a rate of $10 per hour.  There is no doubt that during the first year or so following his accident the Plaintiff would have required a great deal of attention from his wife who was required to perform many tasks for him,  both personal and domestic.  Her evidence is that of recent times, the number of  hours per week would have reduced from 12 hours to about 7 or 8 hours.

1. The evidence of Ms Purse suggests to me that her estimates of 5 to 7 hours per week of personal care and domestic assistance of 7 hours together with outdoor assistance of one hour per week is largely based upon the occasions when the Plaintiff has, what are described by her, as bad days or bad periods.  The effect of her evidence, if I understand what she said in cross-examination correctly, is that generally he should be able to perform most if not all of the personal and domestic tasks which are required.  This in my view requires a substantial reduction in the claim for care and assistance both past and future.  So far as the past is concerned, I allow the sum of $10,000.  I allow interest at 2% per annum for 3 years, producing a sum of $600.

1. The assessment of future care and assistance cannot be approached upon the basis of any mathematical precision as it seems to me it primarily involves making an allowance for those occasions during which the Plaintiff will from time to time be faced with the need for such services.  Doing the best I can, I allow the sum of $12,500.

1. In relation to special damages, these appear as schedule B to the quantum statement in Exhibit 4.

1. I accept the evidence in relation to the special damages with the exception of the claim for a bed in the sum of $699.95.  The total of special damages then apart from the amount paid by WorkCover is $6,390.23.  I allow interest at 5% upon this sum for 3.18 years producing an amount of $1,016.04.

1. The special damages recoverable from the Defendant represented by the amounts paid by WorkCover total $12,502.98.

1. The Fox and Wood component is $4,607.20.

1. There is a substantial claim for future pharmaceuticals.  This is based upon the Plaintiff’s current consumption of these medications, the nature of which appears in the  schedule to the quantum statement.  On the other hand, there is a large claim for future treatment which will include a nerve stimulator which will have to be replaced from time to time.  One of the purposes of this is to give the Plaintiff relief from pain and to enable him to cease using the pharmaceuticals which he is currently using.  Indeed on my understanding, it provides an alternative means of managing the Plaintiff’s pain.

1. I have the costs of the stimulator which Dr Rossato recommends including the cost of replacement of the generator.  It is I think, not possible to attempt any mathematical calculation of the expenditure the Plaintiff may be exposed to in relation to these.  He will, I am satisfied, seek to benefit from the use of the stimulator.  It may be unsuccessful and he may in any case, have to continue using the medication for some time yet.  Doing the best I can, I assess under the heading, Future Pharmaceutical Expense and Future Treatment and Aids, the sum of $42,500.  This includes an allowance for a wheelchair.  The evidence is not totally convincing that this has been required because of occasional acute flare- ups in the symptoms of his cervical spine, shoulder and arm as opposed to the claims he made of his legs giving way.  Perhaps it is a combination of both, although as I have indicated, it does not seem that the Plaintiff currently complains of the latter and there is no evidence which would identify any condition as producing this.  However, on balance, I think it is reasonable to accept that the use of the wheelchair is at least in part, the product of symptoms of the condition which is the result of the incident and which from time to time causes him increased pain, at which times the use of the wheelchair is of assistance to him.

1. I allow the claim for future medical consultations in the amount claimed of $1,379.44.

1. The total of these amounts is $446,331.05.   From  this total has to be deducted the sum of $37,173.78 being the total sum received from WorkCover.  There will be judgment for the Plaintiff against the Defendant in the sum of $409,157.27. Order the Defendant pay the Plaintiff’s costs of and incidental to the action to be taxed as and from the 26th May 1998, excepting the application for a speedy trial on 29th October 1998.

1. The Plaintiff is to pay the Defendant’s costs of and incidental to the application for the speedy trial to be taxed.