| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : O'HARE -v- WHITE [2003] WADC 32 CORAM : COMMISSIONER GREAVES HEARD : 16-18 DECEMBER 2002 DELIVERED : 19 FEBRUARY 2003 FILE NO/S : CIV 2262 of 2001 BETWEEN : PATRICK O'HARE Plaintiff
AND
DAVID PHILLIP WHITE
Defendant
Catchwords: Damages - Personal injuries - Assessment - Plaintiff aged 27 - Significant slice fracture of lumbar spine - No neurological deficit but significant premature arthritis - Plaintiff's capacity to work as mechanical electrician permanently destroyed - Non-pecuniary loss 20 per cent of most extreme case or $48,000 - Future loss of earning capacity until age 65 $409,784
Legislation: Nil
Result: Judgment for plaintiff
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Representation:
Counsel:
Plaintiff : Mr B G Bradley
Defendant : Mr P R Momber
Solicitors:
Plaintiff : D G Price & Co
Defendant : Peter Momber
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Bresatz v Przibilla (1962) 108 CLR 541
De Sales v Ingrilli [2002] HCA 52
Jarvis-Vagg v Eldrid, unreported; DCt of WA; Library No 5145; 13 November 1996]
Jarvis-Vagg v Eldrid, unreported; FCt SCt of WA; Library No 970405; 15 August 1997
Thomas v O'Shea (1989) A Tort Rep 80-251
Wade v Allsop (1976) 10 ALF 353
Wright v Shire of Albany (1993) A Tort Rep 81-239
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1 COMMISSIONER GREAVES: On 16 June 1998, the plaintiff was a passenger in a motor vehicle driven by another employee of the defendant on Great Northern Highway near Dalwallinu. The driver lost control of the vehicle so that it left the road and crashed into a culvert. The defendant admits liability to the plaintiff so that the assessment of damages remains in issue. While the defendant denies the plaintiff suffered injury in the accident at all, it is plain the plaintiff suffered injuries to his teeth, a scar over his nose and, most significantly, a fracture of the lumbar spine at L2. The orthopaedic surgeon, Mr Desmond Williams, reports at Exhibit 1 (p 9):
"In the lumbar spine there is a compression fracture of the superior end plate of L2 with evidence of healing and there is considerable sclerosis in the upper aspect of the body of this vertebrae. Large marginal osteophytes have developed anteriorly. There is an element of kyphosis here which explains the straightening of the thoracic segments. The lower lumbar lordosis is preserved. In September 1998, a CT of the lumbar spine was undertaken and this showed at L2 there is an anterior compression fracture with a sagittal split reverse type fracture in the vertebral body with new bone formation present and no cord compression was evident and no disc protrusion was evident at L1/2 or L2/3." 2 Mr Williams was of the opinion the L2 crush fracture was a severe burst fracture. He said (T96) there was about 30 per cent crushing in the vertebra. Mr Williams referred to the opinion of Mr Emerik Trinajstic, the treating orthopaedic surgeon, at Exhibit 1 (p 24) when Mr Trinajstic said the plaintiff has a fracture of L1 anterior wedge of about 30 per cent with probably a 20 degree kyphosis. He thought that description of the plaintiff's injuries was "very simple and clear" and described the severity of the fracture. He said it was a very significant fracture with a slice through the bone, as well as the wedging. He said all the facet joints are out of sync in the back which will result in arthritis at the facet joints as well as in the disc levels. Significant arthritis has occurred already. Mr Williams explained (T98) this fracture is at a mobile part of the spine It is not the usual wedge fracture in the thoracic area where the ribs are splinting it. This is an area that moves and it is going to hurt to move. Mr Williams said the plaintiff needs "the best muscles in town" to protect his spine. Mr Williams' evidence about the nature of the plaintiff's injuries was not challenged in cross-examination.
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3 The plaintiff called Mr Trinajstic whose reports begin at p 22 of Exhibit 1. He records the plaintiff was treated for six weeks in hospital horizontally and then a further six weeks in a brace. He said there seems to have been a burst of the disc into the superior endplate of L2. It appears the spine is trying to do a fusion between L1 and L2. There is approximately a 20 degree kyphosis at that level. In July 1999, Mr Trinajstic expresses concern the plaintiff has quite marked discomfort and also marked limitation of function. Once again, the evidence of Mr Trinajstic about the nature of the plaintiff's injuries was not challenged in cross-examination.
4 The neurosurgeon, Dr Peter Watson, said at Exhibit 1 (p 19): "The impact was obviously high velocity, causing a flexion injury to Mr O'Hare's lumbar spine. He has ended up with an anterior crush fracture of L2 with the L2 vertebral body losing up to 50% of its height. Mr O'Hare is unfortunate enough to have had one previous motor vehicle accident when he was 15 years old and has had a laparotomy for abdominal trauma at that time. … On physical examination I found Mr O'Hare to have a palpable slight kyphotic deformity centred at L2, a previous midline incision from the earlier motor vehicle accident on the abdomen and the ability to flex at the lumbar spine to touch mid shin. On examination of the lower limbs there was no abnormal findings. He had normal power, sensation and reflexes and tone. Diagnosis is of a crush fracture of L2 with anterior loss of height of approximately 50%. The x-rays now since my consultation on the 9th October 1998 includes films as recently as 13th April 2000. This demonstrates a now well healed compression fracture with evidence of healing, sclerosis and the beginning of osteophyte formation anteriorly in an attempt to further stabilise the segment. There is no evidence of any fusion across the L2 level with adjacent vertebrae." 5 Mr Watson explained (T106) no natural fusion has yet occurred but it may do so. In cross-examination, Mr Watson explained (T107) if new bone forms the fracture is likely to stabilise at 40 or 50 per cent loss of height anteriorly. He agreed the plaintiff has suffered no neurological
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deficit. Otherwise, the evidence of Dr Watson about the nature of the plaintiff's injuries was not challenged in cross-examination. 6 The defendant did not call Mr Nicholas Anastas but his reports were admitted by consent as Exhibit 16. At p 3 of his report of 19 March 2001, Mr Anastas says: 7 In his subsequent report of 9 December 2002, Mr Anastas says at p 2: "I have not seen his lumbo-sacral spine X-rays taken on the 15th March 2000, but from reports supplied I note that it demonstrated a healed fracture of the body of the 2nd lumbar vertebra with a 20º to 25º kyphosis due to anterior compression of the vertebral body. I have not seen the Computerised Tomograph of his lumbo-sacral spine performed on the 16th March 2000, but I note from reports that it demonstrated good healing of the fracture with some sclerosis over the right inferior articular process of L2. There was some suggestion of some loss of alignment of the right L.1-2 and probably the left L.1-2 facet joints indicating secondary degenerative change. I have seen X-rays of his lumbar spine taken on the 26th June 2002 and note that they show that further bony consolidation had taken place at the L.2-3 level without further collapse or kyphotic angulation. Bony consolidation across the disc was
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not yet complete and there was no change in the minimal mal-alignment in the frontal projection." 8 Although I did not have the benefit of hearing from Mr Anastas, it would appear not surprisingly there is little difference of opinion between the doctors about the nature of the plaintiff's injuries. The evidence of Mr Anastas would suggest new bone is beginning to form at the fracture site with perhaps the likelihood of increased stability as projected. 9 It will not be apparent the principal issue between the parties in this case is not the nature of the plaintiff's injuries sustained on 16 June 1998 but rather the extent to which those injuries have and will result in a loss of earning capacity productive of economic loss. The determination of that issue first requires a consideration of the evidence of the plaintiff. He was born on 6 August 1975. He completed Year 12 in 1993 when he was 18. He undertook manual work as a brickie's labourer and began an apprenticeship but decided he did not wish to work in the sun. He became an accomplished squash player and in 1994 participated in the Australian Championships. He said (T12): "I decided to get a job and pursue a career and then later on maybe fall back and keep playing squash and then have another go at it." 10 He obtained an apprenticeship with the defendant in late 1994. He said he was engaged in the installation of air-conditioning equipment into domestic and commercial premises. He said he was offered an apprenticeship as a "mechanical" electrician. It commenced in early 1995. The apprenticeship agreement is Exhibit 3. The plaintiff went on to explain the heavy manual work he carried out during his apprenticeship. He also undertook study at TAFE for three years during the apprenticeship. At p 19 et seq of the transcript, the plaintiff describes the circumstances of the accident and his subsequent hospitalisation for six weeks. He was fitted with a fibreglass cast around his torso. He began to walk with a frame and to use a wheelchair. After discharge from hospital he underwent physiotherapy and hydrotherapy for three months. The fibreglass brace was taken off in September 1998 and replaced with a strap brace. 11 The plaintiff's apprenticeship was suspended shortly after the accident (Exhibit 5). The plaintiff gave evidence (T26). He did not feel he could return to work as an apprentice mechanical electrician after the accident. He said:
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"I knew personally that I would not be able to make the grade for an employer to employ me because I know the bending, the crawling and all the stuff that I had done before previously I am not able and would not be able to do in a satisfactory manner." 12 The plaintiff's apprenticeship was cancelled on 1 August 1999 (Exhibit 7). The plaintiff said (T27) at the time of the accident he was halfway through his TAFE course as an apprentice mechanical electrician. He said he did not complete the course because "I knew I couldn't cope at the trade". He said the work of a mechanical electrician is heavy and involved crawling around in confined roof spaces. 13 The plaintiff said by the end of 1999 he felt the condition of his back had stabilised (T30). He said from day to day sitting and standing for long periods of time aggravates his back. He said he has a constant dull throb in his back. He said the bending and mobility he used to have is gone. He said he used to be able to put the palms of his hands flat on the ground standing straight with locked knees. Now he can get them just below his knees. He bends and squats to pick things up from the ground. He has played squash only once since the accident and it was not tolerable. He cannot run. He gained 23 kilograms after the accident and has been able to reduce his weight to 85 kilograms through diet and exercise in the gym. He said he is not as easy-going as he was before the accident. It has affected his social life. He cannot tolerate nightclubs. He cannot go camping, go-carting or motorcross riding. He cannot restore motor vehicles. He cannot play indoor cricket. 14 The plaintiff said (T47) he had intended to qualify as an electrical mechanic. He said he planned to work throughout Australia in construction, maintenance and mining. (T47) 15 In September 1998, the rehabilitation firm Work Focus contacted the plaintiff and arranged for him to have a work trial with Ozcom in the field of radio installation in motor vehicles. He began work for Ozcom in May 1999. He left that job as a result of a disagreement over pay and obtained similar work with Car Audio Excellence. Remarkably, the plaintiff continued to work without pay for some months and subsequently left. Thereafter the plaintiff received unemployment benefits and completed two Work for the Dole jobs. The plaintiff said he has tried to obtain employment and produced copy letters for that purpose (Exhibit 10). He is undertaking a gym programme three times a week and plans to continue that. He said (T47):
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"I find it's stabilised me in the fact that I've got strength and it's maintaining my weight which was getting out of control." 16 In cross-examination, he explained (T50 et seq) the nature of his gym programme. He explained the work of an electrical mechanic. He said (T55) he has not tried to go back to the work of an electrical mechanic "because I know personally inside that I would not be able to cope with it". He said but for the accident he would have completed his apprenticeship, including the TAFE course. He said it would have taken 12 to 18 months to complete the TAFE course and his apprenticeship. He was asked why he did not complete the apprenticeship to give himself a qualification and replied (T57): 17 He agreed he was capable of lightweight electrical work. He said he has not returned to complete his apprenticeship "because the option's never been there." (T58 – 59). The plaintiff was shown Exhibit 17 and agreed again he was capable of light duties as an electrician. He agreed he had not explored such work "because it was something that was different to what I was doing". (T60). He said (T63) light electrical work was not the line he was looking at. He said he liked to do something he was good at. 18 In re-examination, the plaintiff said that up until the time his apprenticeship was cancelled, no-one suggested he should continue with his TAFE course. He said the defendant did not suggest he would certify the practical completion of his apprenticeship and did not offer him an alternative position (T82). Once again, the plaintiff distinguished the work of a mechanical electrician from a domestic electrician (T82 et seq). 19 The evidence of the plaintiff is that he is not capable of the work of a mechanical electrician. The doctors are not agreed about this issue. Mr Williams acknowledged the plaintiff's incapacity to work in the long term as an electrician (Exhibit 1, p 11). He expressed the opinion the plaintiff should nevertheless complete his apprenticeship. At Exhibit 1 p 16, Mr Williams confirmed the plaintiff's incapacity to enter manual and stressful spinal work is directly attributable to the consequences of the motor vehicle accident and the crush fracture and associated degenerative change. He considers the residual disability to be permanent.
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Mr Trinajstic expressed the opinion (Exhibit 1, p 26) the plaintiff's capacity to work as a mechanical electrician is "significantly limited". He says the plaintiff cannot undertake repeated bending or lifting. He expresses the opinion the plaintiff's incapacity is permanent. 20 The plaintiff called the occupational physician, Professor Andrew Harper who reviewed his injuries and expressed the opinion (Exhibit 1, p 3) the plaintiff is incapacitated for his pre-accident work as an electrician and should avoid manual work including lifting, bending, carrying, jarring and working in awkward positions. He advised against the plaintiff's returning to a manual occupation on a permanent basis. He was of the opinion the plaintiff should train in an alternative occupation and seek alternative work. The issue on the evidence between the parties may be explained by reference to the evidence of Dr Andrew Marsden, the occupational physician called on behalf of the defendant (Exhibit 11). In his report of 5 February 1999 at p 2, Dr Marsden says: "He now has good bony union and his back is now strong enough for any reasonable work. He needs to increase his general fitness, and from my point of view he is fit for his normal duties with appropriate sensible care. He could return to his electrical trade work with appropriate care lifting and carrying and in general these fractures do well in the work place with appropriate rehabilitation. I have recently helped the full rehabilitation back to normal duties of a foreman electrical tradesman, who was able to return to any lifting or carrying being undertaken in his working role, and also an ore truck driver and plant machine operator who has had a similar fracture and has been able to return to work through a rehabilitation programme. I also assisted a mechanical fitter with a similar fracture and all these men have returned to work with a sensible approach to their duties but essentially undertaking normal duties eventually." 21 Dr Marsden pursues his opinion in his subsequent report of 14 November 2002 at p 2 when he says: "I have reviewed other patients, and assisted with their rehabilitation after mid back compression fractures from motor vehicle accidents at the L1 or L2 levels, and they have been able to undertake quite heavy physical work subsequently. Compression fractures need not be significantly disabling, and orthopaedic text books refer to them as being overlooked
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sometimes when there are other more serious injuries from, for instance falls, where a person severely fractures their ankles, and then there may be some persistent low back discomfort subsequently in which a wedge fracture is discovered at L1 or L2. I reviewed his permanent impairment using the American Medical Association Guides to the Evaluation of Permanent Impairment, and he would come under DRE Category III in the 5th edition, with a 25 to 50% anterior compression fracture, which would take into account any surrounding disruption to facet joints, and this equates to a 10% whole person loss of efficient function, and using the conversion equation further in the text book, this equates to a 13% loss of efficient function of the lumbosacral spine as a whole. This could be considered permanent." 22 Professor Harper was asked to respond to the opinion of Dr Marsden in his report of 14 November 2002, which he did on 12 December 2002 as follows: "Thank you for your letter of the 6th December 2002 with enclosures and a request for comments in relation to Dr Marsden's most recent report of the 14th of November 2002. Dr Marsden refers to patients of his with similar fractures who have been able to return to 'quite heavy physical work'. His experience is consistent with the natural history of compression fractures of the lumbar spine which is one in which some patients recover with insignificant disability. However there are the others who experience varying degrees of pain, stiffness, restriction and disability. As I have recorded in my most recent report and as was reported by Dr Marsden, Patrick O'Hare continues to experience symptoms in the lower back which are aggravated by sitting, extended standing, prolonged stooping and bending. The radiographic changes of some possible secondary degenerative change (17/3/99) and 'large marginal osteophyte formation' (13/4/00) and the bone scan findings (19/4/00) suggesting degenerative disc changes at L1/2 are indicative of a risk of some increased pain with age.
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I hold the view that a man of 26 experiencing low back pain four years after a compression fracture in whom degenerative changes are evident should not be advised to pursue a demanding manual career. His disability is one that requires him to change his occupation. Furthermore the job market would disadvantage him greatly if he were applying for a manual job to the extent that it is most unlikely that he will be able to compete successfully for work in a manual trade. My assessment of disability pursuant to Schedule 2 of The Act is as I have previously reported. The US Guides to Impairment are a measurement of impairment and not disability and to quote directly from the US Guides 'it must be emphasised and clearly understood that impairment percentages derived according to the Guides criteria should not be used to make direct financial awards or direct estimates of disabilities.' (Guides to the Evaluation of Permanent Impairment 4th Edition American Medical Association 1993 Page 1-5). If further clarification is needed please contact me." 23 All the doctors are agreed the plaintiff is capable of duties of the kind described in Exhibit 17, tendered by consent on behalf of the defendant which reads as follows: "In reference to the matter of O'Hare vs White I am the director of Elements & Appliance Parts established in 1994 and Wiring Electrical Contractors Est 1995. I have been a licensed Electrical Contractor since April 1987 in Western Australia. I employ a Technician for the appliance repair centre and a fourth year apprentice. The duties performed in this area of the business are as follows: Customer Service This entails fielding phone calls and looking up product information, pricing and spare parts ordering via computer, Fax etc General billing and goods inwards and outwards. Repairs We are agents for most leading brands of electrical appliances and repair items from electric shavers to commercial cooking
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equipment. Basically all of this work is carried out in house on the test bench in the workshop. The test benches are fitted with safety devices to ensure personal safety of the staff and meters and test lights to help diagnose problems with the equipment being repaired. We carry catalogues on most products and diagrams that are used as reference to assist in fault finding; also some product information is accessed through CD-Rom on computer. Handling of stock and items to be repaired We receive many deliveries of spare parts, products and items to be repaired. Stock needs to be checked off on invoices and either placed on shelving or placed on the bench with job cards should it be a part for a repair that we have ordered. Staff unpack and pack products as required. Staff are aware that they are to be mindful of things they are required to lift or relocate in the workshop and at all times must request assistance in lifting any items that appear heavy to avert injury. If no one is available to assist they must wait until someone becomes available before lifting these items. Wages The gross weekly wage for the technician [Electrical Fitter] is $573.30 plus $16.10 licence allowance plus $11.00 per week tool allowance for a 38 HR week. If you have any further questions please phone me. Yours sincerely Glen Primrose
Director" 24 In my opinion, the evidence of Mr Williams, Mr Trinajstic and Dr Harper should be preferred on this issue. It is not to the point that others suffering similar injuries have returned to their pre-accident employment. That belief seems to have weighed significantly in at least Dr Marsden's mind in the assessment of this plaintiff's incapacity. In the end, it is the capacity of this plaintiff which must be assessed and on balance the assessment of Mr Williams, Mr Trinajstic and Dr Harper should be preferred. I find, therefore, the plaintiff's injuries have permanently destroyed his pre-accident earning capacity as a mechanical
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electrician, a pre-accident earning capacity I find the plaintiff very likely would have gone on to exercise until aged 65. 25 In my view, it was entirely reasonable for the plaintiff not to complete his apprenticeship as a mechanical electrician in the circumstances he faced following the accident and now, because the plaintiff wanted to be a mechanical electrician, but he was and is not capable of it. It is equally unreasonable to expect him to qualify and to undertake the kind of duties described in Exhibit 17. The evidence establishes on the balance of probabilities the plaintiff's injuries were a material cause of the decision not to complete the apprenticeship and of his loss of earning capacity. I find the plaintiff has a retained earning capacity for unqualified light duties if he can obtain such work in the market. I proceed to an assessment of damages in accordance with these findings. 26 I approach the assessment of damages in this case keeping in mind in particular it was almost a certainty the plaintiff would have qualified as a mechanical electrician but for his injuries and, as I have found, continued to exercise his earning capacity as such until aged 65. I have considered the submissions of counsel for the plaintiff beginning at p 150 of the transcript in support of the plaintiff's economic loss schedule. They are based on the unchallenged evidence for the plaintiff. In relation to past loss of earning capacity, nothing has been shown why the method of calculation explained in the schedule at pars 1 and 2 should not be adopted, and accordingly I do so.
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Less Actual earnings Ozcom $2,970.00 Drake Personnel (MRI) $3,558.00 $3,558.00 2. Interest on Past Loss of Earnings: (i) The plaintiff received $27,100 net in
weekly compensation payments. (ii) The plaintiff's net loss of earnings excluding the Fox v Wood payments
as calculated above is $165,518.00 net $165,518.00 Less net weekly compensation
received $ 27,100.00 Uncompensated Past Loss of Income $138,418.00 (iii) 4.5 years x 3% x $138,418.00 = $18,686.00" 27 Again, in relation to past loss of superannuation benefits, nothing has been shown why I should not adopt par 3 of the schedule and I do so: 28 In relation to future loss of earning capacity, nothing has been shown why I should not adopt the method of calculation in par 4A of the schedule. On the findings I have made, I consider the discount of 35 per cent for contingencies and retained earning capacity reasonable in the circumstances and I therefore adopt that calculation.
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"4A Future Loss of Earning Capacity (i) The plaintiff was born on 6 August 1975 and is now
aged 27.5 years
(ii) The 6% discount multiplier for 37.5 years to age 65 is 794
(iii) The net weekly rate for the purposes of calculation of
future economic loss is claimed
to be $794 net per week.
Gross earnings of Electrical
Mechanics as per the evidence
of Lisa Biglin – per week $1,080.00
Less Income Tax $ 286.00 $ 794.00 (iv) $794 net per week x 794
(6% discount multiplier) $630,436.00 Less discount of 35% for
contingencies and retained capacity $220,652.00
Loss $409,784.00" 29 In relation to future loss of superannuation benefits, nothing has been shown why I should not adopt the method of calculation in par 4C of the schedule and I do so. "4C Future Loss of Superannuation Benefits 9% x $1080 gross per week x 794 x 70% = $54,023.00 Less 35% for retained capacity and
contingencies $18,908.00 $35,115.00"
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30 In relation to special damages claimed in par 5 of the schedule items (i) – (iv) were agreed. Item (v) was abandoned. I consider Item (vi) to be reasonable in the circumstances and accordingly I allow special damages as follows.
"5 Special Damages (i) Special damages paid by workers'
compensation insurer $3,732.35 (ii) Vocational rehabilitation expenses paid by
workers' compensation insurer $4,930.00 (iii) Dental expenses (agreed) $229.65 (iv) Travel expenses (agreed) $229.65 … (vi) Past gymnasium expenses (not agreed)
36 weeks x $45 per week $1,620.00 $10,741.65" 31 The plaintiff claims the following future expenses at par 6 of the schedule. "6 Future Expenses (Calculated to age 75 – The 6% discount
multiplier for 37 years to age 75 is 791.8) (i) Medical reviews – 3 GP reviews per annum @ $51 per review = $153 per annum or $2.94 per week $2.94 per week x 791.8 = $2,327.89 (ii) Physiotherapy – 4 sessions per annum @ $41 per session = $164 $3.15 per week x 791.8 = $2,494.17
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(iii) Gymnasium - $500 per annum $9.61 per week x 791.8 = $7,609.19 (iv) Allowance for chance of surgery $3,000.00 $15,431.25" 32 I consider these sums to be reasonable on the unchallenged evidence for the plaintiff and allow this item accordingly. 33 In relation to general damages for pain and suffering and loss of amenities, the assessment is to be made as a percentage of a most extreme case for which the maximum amount which may currently be awarded is $240,000. I accept the evidence of the plaintiff about the effect which this significant back injury has had on his everyday life and given the nature of the injury and likelihood of further degeneration, I find it very likely the consequences are permanent for the plaintiff. The evidence of Mr Williams establishes the plaintiff's injury is serious and significant. The plaintiff also sustained the minor injuries I referred to at the beginning of these reasons. In my opinion, damages under this head should be assessed at 20 per cent of a most extreme case or $48,000. Accordingly, the plaintiff is entitled to the following award: Past loss of earning capacity $171,154.00 Interest on past loss of earnings $18,686.00 Past loss of superannuation benefits $11,018.00 Future loss of earning capacity $409,784.00 Future loss of superannuation benefits $35,115.00 Future expenses $15,431.25 Special damages $10,741.65 Non-pecuniary loss $48,000.00 $719,929.90 34 I will enter judgment accordingly.
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