O'Sullivan v Hotchin

[1997] QSC 40

IN THE SUPREME COURT

OF QUEENSLAND

No 1656 of 1986
Brisbane

Before the Hon. Justice Williams

[O'Sullivan v. Hotchin & Anor]

BETWEEN:

MICHAEL JOHN O'SULLIVAN
  Plaintiff
AND:
  IAN R. HOTCHIN
  and
  LYNETTE A. HOTCHIN
  Defendants
AND:
  SUNCORP INSURANCE AND FINANCE
  Defendant by Election

JUDGMENT - WILLIAMS J

Judgment delivered 19/03/1997

CATCHWORDS:     MASTER AND SERVANT - negligence - defective seat in 4WD vehicle used on grazing property - back injury - employer held to be negligent.

DAMAGES - back injury - male station hand - aged 32 at accident 44 at trial - L5-S1 disc herniation - no surgery - condition accelerated by 15 years - $40,000 pain and suffering - total award $242,940.

Counsel:Hodges for plaintiff

Hoare for defendant by election

Solicitors:McKays for plaintiff

Clewett Corser & Drummond for defendant by election

Hearing Dates:  3-4-5 February 1997

IN THE SUPREME COURT

OF QUEENSLAND

No 1656 of 1986

Brisbane

[O'Sullivan v. Hotchin & Anor]

BETWEEN:

MICHAEL JOHN O'SULLIVAN
  Plaintiff

AND:

IAN R. HOTCHIN
  and
  LYNETTE A. HOTCHIN
  Defendants

AND:

SUNCORP INSURANCE AND FINANCE
  Defendant by Election

JUDGMENT - WILLIAMS J

Judgment delivered 19/03/1997

The plaintiff, Michael John O'Sullivan, claims damages for personal injuries allegedly resulting from an incident which occurred on 27 October 1984 in the course of his employment with the defendants.  "Tongy" and "Ashling" were neighbouring grazing properties in the Mitchell district owned by the defendants, Ian R and Lynette A Hotchin.  There was some dispute at the trial whether the plaintiff was employed by the defendants as a station hand or property manager, though there is no doubt that at all material times the relationship of employer-employee existed.  I am satisfied that the precise designation of the plaintiff's employment was never considered of importance to either party.  On the balance of probability I am satisfied that he was employed as a station hand, though the circumstances were such that from time to time he was called upon to make decisions which may have been more appropriate for a station manager.  That arose partly from the fact that the defendants were operating two adjoining properties, and for significant periods of time the male defendant was absent.  But for present purposes the critical fact is that the plaintiff was an employee and was obliged to act in accordance with instructions and directions generally or specifically given to him by the defendants.  Whilst he had some discretion he could exercise in the way in which his tasks were performed, he was overall bound by decisions and directions emanating from the defendants, and the male defendant in particular.
           Amongst the items of equipment for use on the two properties was a 1981 Daihatsu four-wheel drive motor vehicle.  It was frequently driven by the plaintiff whilst carrying out his activities, but it was not for his exclusive use.  At all material times the vehicle was an item of equipment owned by the defendants and available to the male defendant, the plaintiff and others whilst carrying out work on the properties.
           In October 1984 the vehicle was approximately 3½ years old, having been purchased new by the defendants for about $8,000.  By that time it had travelled some 38,000 kilometres.  The male defendant said in evidence that as at October 1984 the driver's seat in that vehicle was "consistent with the seat in a vehicle that was 3½ years old and had done some 37, 38,000 kilometres."  He described it as a "lightly padded seat" which was "consistent with the value of that vehicle".  The male defendant also said that at that time the seat had never been "tampered with, never been changed" and the only problem was that the "stitching was starting to fray around the edges".
           According to the plaintiff some months prior to October 1984 he noted that the driver's seat of the Daihatsu had become "dilapidated" and had "collapsed".  He was required in the course of his employment to drive the vehicle regularly and, according to his evidence, the condition of the seat had become a concern to him.  He claims that the "back was broken" and that effectively one was sitting on "the steel pad underneath the seat through the cushion".  In an attempt to overcome those problems the plaintiff placed a cushion on the seat, but it had been removed or lost prior to the relevant incident.  The plaintiff gave evidence, which was disputed by the male defendant, that some 6-8 weeks prior to 27 October 1984 he specifically drew the male defendant's attention to the condition of the driver's seat, and also to some other defects in the vehicle.  According to the plaintiff the male defendant "lifted the seat up and said it was only the springs that were gone in it and that it didn't affect him".  The plaintiff's wife also noticed problems with the seat.
           There was an access road, some 4 kilometres in length, between "Ashling", the property on which the defendants resided, and the adjoining property "Tongy".  According to the plaintiff he had asked the male defendant on some three or four occasions in the months immediately prior to October 1984 whether the road could be graded.  On each occasion, again according to the plaintiff, the male defendant indicated that the condition of the road was satisfactory.  The evidence from the male defendant was that he thought the road had been repaired by the grader in about May 1984.  His evidence in that regard was based on the fact that he had a diary note which indicated that the grader had been driven over the road in question at about that time.
           On 27 October 1984 the plaintiff was driving the Daihatsu from "Ashling" towards "Tongy" along that access road.  It had been raining; a storm had gone across ahead of the plaintiff.  Because the road was wet he engaged four-wheel drive and proceeded at a speed of approximately 15-20 kilometres per hour.  He came to an area of the road which he described as "a well known problem area".  There was at the point in question a side track but it had been ploughed up and was in a bad state.  The plaintiff's evidence went on:  "The storm had been reasonably heavy.  There wasn't water over the road but the road was wet.  As I approached the bumps I could see that the potholes - that there was water in them.  I could see the tops of the potholes, though.  My intention was to straddle one set of potholes ... The vehicle slewed to the right and the front end went into - at that stage it was into two sets of potholes, one each front wheel, because I had slipped sideways into the two sets.  The vehicle went down into it and bounced up in a rocking motion for three or four bumps through the series of bad potholes."
           The plaintiff immediately felt severe pain in his lower back.  According to his evidence he had "no feeling in his legs".  He was afraid to stop because he thought he may not be able to get started again and so he kept on driving.  When he arrived at the homestead he had difficulty in getting out of the vehicle and needed some assistance from his wife.
           Photographs were tendered showing the section of the roadway in question at a later point of time.  Whilst the photographs are not directly relevant to the state of the road on 27 October 1984 they do depict the general nature of the road conditions which confronted a driver after rain.
           Within a short time after the incident the plaintiff consulted a chiropractor and received treatment for his back condition.
           The plaintiff drew the male defendant's attention to his back condition and as a result the latter produced forms relating to a claim for workers' compensation.  As a result the plaintiff completed the application form, a copy of which became exhibit 33.  I am satisfied that the date of the incident and the designation of the plaintiff's occupation were filled out in consequence of statements made by the male defendant.  In that application form the plaintiff referred to an injury to his back which was sustained whilst "driving light truck hit bad bump".  At about the same time the male defendant filled out the employer's form relating to workers' compensation.  In it there was reference to the plaintiff sustaining a "strained back" whilst he was driving a vehicle.
           The plaintiff gave evidence that on the day those forms were signed the male defendant had traversed the road in question and had made the statement that he had hit the bumps.  At that time he indicated that he "now understood how I had done my back and he was rubbing his back at the time".
           The male defendant gave evidence that the plaintiff had not made any complaint to him prior to 27 October 1984 regarding the vehicle.  However, he frankly admitted that shortly after 27 October the plaintiff told him that "the seat had caused his back injury, and I accepted that."
           Significantly the evidence from the male defendant is that in about February 1985 he replaced the seat in the Daihatsu.  He purchased a seat out of a Morris Mini Minor which was in "quite good condition" and placed it in the Daihatsu.  Using an oxyacetylene torch he cut the bottom square out of the seat, removed the runners, and welded those runners onto the bottom of the new seat in the correct position so they would correspond with the fixture on the floor.  In effect that meant cutting the runners of the old seat and welding them onto the new seat so that the new seat would fit into the Daihatsu.
           In my opinion the conduct of the defendant in replacing the seat is critical to the resolution of the issue of negligence.  The work involved in replacing the seat was not insignificant, and it is not something that would have been done if the existing seat was in reasonable condition.  I am satisfied that the reason for replacing the seat was that it was in an unsafe and dangerous condition and the male defendant realised that.  Further, I am satisfied that the male defendant accepted that it was the condition of the seat which caused the injury on 27 October 1984.  In the light of all the circumstances I am satisfied that the plaintiff did complain to the male defendant prior to 27 October 1984 of the condition of that seat, and also drew attention to the fact that there were potholes on the access road which required grading.
           It follows that I am satisfied that the plaintiff sustained a back injury on 27 October 1984 because he was required in the course of his employment to use a vehicle with a defective seat whilst driving over a potholed road.  The defendants were negligent in failing to take reasonable steps to ensure that the driver's seat of the vehicle was in reasonable condition, and in requiring the plaintiff to drive the vehicle with the defective seat across a bumpy road.
           It was contended that the plaintiff was guilty of contributory negligence in driving at too fast a speed over the road in question.  All of the evidence suggests that the plaintiff was travelling at no more than 15-20 kilometres per hour when he hit the bumps, and in all the circumstances that is not such a speed as to establish negligence on his part.  I am not satisfied that the defendants have on the balance of probability established contributory negligence on the part of the plaintiff.
           I now turn to the question of quantum.
           The plaintiff was born on 11 August 1952, making him aged 32 at the date of the accident and 44 at the date of trial.
           The plaintiff's evidence is that in the days immediately following the accident he experienced "severe" pain in the region of his lower back and hips.  On some occasions in evidence he referred to the pain at that time radiating down his legs, but I am not satisfied on the balance of probability that in those early days he did experience such pain.  He also refers to experiencing headaches from the date of the incident.  On the Monday following the incident - which occurred on the Saturday - he consulted a chiropractor in Roma and received some treatment.  There was apparently no alleviation in his symptoms and on 30 October 1984 he consulted Dr Carlisle.  An x-ray of the lower back was taken and it did not reveal any obvious problem.  Dr Carlisle prescribed rest and painkillers.  As the plaintiff's condition had not significantly improved by 30 November 1984 Dr Carlisle referred him to Dr WR Parker, an orthopaedic specialist.
           The first examination of the plaintiff by Dr Parker was on 5 December 1984.  The clinical examination revealed "good range of back movement and his straight leg raising on the right side was 80°."  When reviewed on 11 January 1985 Dr Parker recorded "no real leg pain".  An arrangement was made for the plaintiff to have a CAT scan on 15 January 1985 and the report (exhibit 8) indicated that at L5-S1 level there was a "small disc herniation slightly to the right of the mid-line" which was "causing deformity of the thecal sac and was almost certainly compressing the right S1 nerve root."  The plaintiff was reviewed again by Dr Parker on 27 February 1985 when he recorded "persistent pain which is worse at the end of the day and prevents him from working."  Dr Parker then requested a myelogram which was carried out on 5 March 1985.  The report (exhibit 9) confirmed a "right postero-lateral disc protrusion causing some impingement on the right S1 nerve root sleeve".  In a report dated 17 June 1985 Dr Parker observed "there are no real signs of nerve root pressure in the form of restriction of straight leg raising or reflex changes."  In a further report of that day to the Workers' Compensation Board Dr Parker stated that "he at no stage had leg pain".
           Throughout most of the period covered by Dr Parker's reports the plaintiff had tried to continue working for the defendants.  He endeavoured to carry out general property duties, but found that with any real exertion he experienced severe pain.  Because he was unable to carry out his tasks effectively he made an application to re-open his workers' compensation claim on 25 February 1985.  Because the plaintiff was unable to do all that he had generally done prior to October 1984 the defendants were obliged to employ an additional station hand.  Ultimately by August 1985 it became clear that the plaintiff was unable to perform station work satisfactorily and his services were terminated by the defendants.  The plaintiff's wife was thereafter employed as a housekeeper on "Ashling" and that meant that the plaintiff and his wife continued to reside on the properties of the defendants until January 1986.
           Thereafter the plaintiff and his wife moved to a nearby property "Rosewood" owned by the plaintiff's uncle.  Over a period of some two years the plaintiff endeavoured to carry out station duties, but he was very limited because of his back condition.  Any heavy work brought on severe pain and he was unable to carry out a reasonable range of rural work.  There was always an increase of pain with physical activity.
           At that point of time an incident occurred which ultimately subjected the plaintiff to very severe emotional stress.  The plaintiff's uncle, the owner of "Rosewood", went missing.  Extensive searches, in which the plaintiff participated, failed to find any trace of him.  The police were called in and ultimately the plaintiff was severely interrogated by the police as a person suspected of murdering his missing uncle.  That suspicion attached to the plaintiff for some considerable time until it was discovered that his uncle had died in a motor vehicle accident on a remote part of the property.  All of that subjected the plaintiff to significant emotional and psychological trauma.
           At some stage, it is not possible to put a precise date on it but it was certainly before the plaintiff left "Ashling", he began to complain of urinary and faecal incontinence.  By the time of trial this was a significant aspect of the plaintiff's disability which he attributed to the incident of 27 October 1984.  But significantly there was no mention of it to doctors who were treating him at that time.  The first recorded mention of that condition appears to be that made by Dr Blue, an orthopaedic surgeon, in his report on the examination he made of the plaintiff on 18 September 1985.  He recorded:  "More recently he has noticed some minor bowel problems but he denies any urinary problems."  This is a matter to which I will return later.
           After leaving "Rosewood" in late 1988 the plaintiff and his wife moved to Brisbane and conducted a landscaping supply business at Anstead until about Christmas 1992.  At the outset the plaintiff worked serving customers, driving a loader, driving a light truck, and occasionally driving a semi-trailer.  In assisting customers who, for example, purchased logs and other heavy items, there was a deal of lifting involved.  Over time the work performed by the plaintiff decreased because of the pain he was suffering.  Ultimately the profitability of the business suffered because of the plaintiff's inability to carry out the work involved.
           For many years now the plaintiff's wife has been massaging his back, legs and feet.  He finds that that does give some relief.  General evidence was given by the plaintiff and his wife that he was massaged on average every second day.  It was estimated that the time spent by the wife in performing that task would average out at one hour per day over the whole pre-trial period.
           In order to assist with his mobility and capacity to carry out various tasks he has from time to time worn an orthopaedic corset and also uses a walking stick when necessary.
           The plaintiff and his wife each gave evidence that for a number of years the sexual relationship between them has been "non-existent".  This is attributed to his back condition.
           The plaintiff's evidence was that he could drive a motor vehicle for 1-2 hours but always experienced pain and discomfort after such a journey.  However, he has been able to continue flying ultra-light aeroplanes which have become his main recreational interest in recent years.  Apparently that activity does not significantly aggravate his back condition.  He said that he had last flown the ultra-light some 2-3 months prior to trial.
           The evidence clearly establishes that at the present time the plaintiff is incapable of labouring work; any heavy exertion will precipitate the onset of reasonably severe pain.  Generally all doctors who have reported on the plaintiff's condition have recommended against surgery, but it is equally clear that even successful surgery would not improve his physical capacity to work as a labourer or in any job involving heavy exertion.  At best successful surgery would alleviate some pain.  He has no present skills enabling him to work in other than labouring or other unskilled areas of employment.
           A number of doctors were called to give evidence as to the plaintiff's condition and, though there was some variance in the views they expressed, in the end result there was little material difference between their assessments of the plaintiff's present condition.  Dr Parker conceded that there was some ambiguity in his notes as to when, if at all, the plaintiff complained of pain radiating down his legs.  However, on the whole of the evidence I am satisfied that the plaintiff did not make specific complaint of pain radiating down his legs for some time after the incident of October 1984.  By September 1985 when the plaintiff saw Dr Blue he was making complaint of pain radiating down his "right leg".
           Dr Parker under cross-examination expressed the view that as at October 1984 the plaintiff's back condition was such that "it was an accident waiting to happen".  It seems clear that the doctor intended by that answer to indicate that the state of degeneration of the plaintiff's back in October 1984 was such that any minor trauma could result in the onset of severe symptoms.  In the light of all the medical evidence that may well be regarded as an overstatement of the position.  The x-rays, CAT scan and myelogram would, if anything, tend to support the opinion of Dr Curtis that as at October 1984 there were only early signs of degeneration, and the rate of degeneration in the spine overall has been relatively slow since that date.  What is more important, however, are the opinions stated by Dr Curtis, which I accept, in the course of his oral evidence.  He assessed the plaintiff's spinal condition in 1996 to constitute disablement "to the extent of some 15-20% loss of function of his spine as a whole, which remains permanent and is wholly attributable to the effects of his injury."  But when asked what would have been the plaintiff's present condition if one excluded the incident of October 1984 from the equation he answered:

"Ultimately, his present condition would have come to light.  It may have taken 10 or 15 or more years before doing so.  ...  I think he would eventually have developed significant disabling symptoms, particularly of back pain, but it would have taken at least 10 years or probably 15 before doing so."

In other words by about October 1999 the plaintiff would in any event have been experiencing the symptoms and disabilities of which he now complains and that condition would have been permanent.
           The plaintiff is to be compensated because, to use the words of Dr Blue, his degenerative spine was rendered symptomatic by the incident of October 1984, and he has experienced those symptoms and incurred his disability some 15 years earlier than otherwise would have been the case.
           The plaintiff sought to establish at trial that his bowel and urinary problems were the direct result of the injury sustained in October 1984.  The case in that regard was largely based on the opinion of Dr Stephenson (exhibit 16).  That opinion was significantly if not wholly dependent upon the proposition that "colonoscopy 2-3 years ago was normal".  Counsel for the plaintiff expressly stated that he was unable to place before the court any evidence as to such a colonoscopy, and there was no evidence indicating when or where such a procedure was carried out.  Once it is accepted that there is no evidence to establish a "normal colonoscopy" the foundation of the opinion of Dr Stephenson is removed.  Further, there is strong evidence from Dr Landy, a neurologist, that the plaintiff did not suffer any "caudia equina lesion" such as would result in bowel and urinary incontinence.  All of the evidence, with the possible exception of the opinion of Dr Blue, is that the disc protrusion was right-sided, albeit slight; to create the possibility of a caudia equina lesion the protrusion would have to be central to the spinal column.  On the whole of the evidence I am not satisfied that the plaintiff's bowel and urinary problems are a consequence of the injury sustained in October 1984.
           Reports from Dr Peter Mulholland, a psychiatrist, were admitted into evidence.  His opinion is that the plaintiff is suffering "a chronic low grade depression".  That conclusion was reached after the doctor's initial examination and interview with the plaintiff on 19 August 1994.  The plaintiff did not then mention anything about bowel and urinary problems.  That was first brought to light when Dr Mulholland interviewed the plaintiff's wife on 27 September 1994.  In his most recent report of 16 August 1996 Dr Mulholland says:  "Chronic depression is the result of the sum total of his life situation and in particular his being in chronic pain, and not being able to work and his having the various physical symptoms that he does have."  It is clear from reading Dr Mulholland's reports that the plaintiff's emotional and psychological stress following the police investigations into his uncle's disappearance and death in 1988 and his concern with his ongoing bowel and urinary problems are significant contributing factors to his present psychological state.  Another factor, referred to by Dr Mulholland in his most recent report is anxiety associated with the litigation for damages.
           I am prepared to find that the pain associated with the plaintiff's back condition resulting from the incident in October 1984, and anxiety associated with the relevant litigation, has contributed to his depression, but it cannot be said that such considerations are the sole or major causes thereof.  I approach the question of assessment of damages on the basis that the pain and disability and inability to work are significant contributing factors to his present psychological condition.
           So far as pain and suffering and loss of amenities are concerned the plaintiff is to be compensated for the pain and disability directly related to his back condition over a period of 15 years.  Counsel for the plaintiff in his address referred to awards made in back cases where there had been surgical intervention; because of that those decisions are not directly comparable.  Bearing in mind the plaintiff's age and the fact that the loss is to be calculated with respect to a defined 15 year period I assess damages under this head in the sum of $40,000.
           The plaintiff claimed a number of items by way of special damages.  The defence conceded that the expenses paid for by the Workers' Compensation Board as specified in the letter exhibit 36 were recoverable.  The total of $4,941 is allowed with respect thereto.  The plaintiff made a claim for the cost of medications used in the period prior to trial, and the claim was set out in exhibit 34.  Only the Panadeine and Aspro relate to the back condition; all the other medications in that exhibit relate to treatment of the urinary and bowel problem.  The past cost of Panadeine and Aspro is allowed in the sum of $5,056.  In exhibit 38 the plaintiff itemised expenditure on acquiring what were described as needs resulting from his back injury.  Included in the list is a bed costing $300.  Whilst it is true that the bed was selected because it was appropriate for a person with a back injury, the fact is that the plaintiff did not own a bed at all prior to that.  It would have been necessary for the plaintiff to purchase a bed (at least after his move to Brisbane) and it cannot be said that the $300 was additional expenditure incurred because of the injury.  I allow the other items specified in exhibit 38 and the total cost thereof is $400.  The final claim by way of special damages is for $4,320 being the cost of professional chiropractic and massage treatment.  In recent times the plaintiff has been receiving treatment from a person whose qualifications are not recognised for registration in Queensland, but I am satisfied that the treatment does significantly alleviate the plaintiff's pain.  Subject to that the defence did not seriously challenge what is set out in exhibit 39 and in the circumstances I am prepared to allow the amount claimed in full.  The total therefore allowed by way of special damages is $14,717.
           Pursuant to the principle derived from Griffiths v. Kerkemeyer the plaintiff sought to recover a total of $38,622 for care provided to him by his wife.  Whilst I accept that the plaintiff's wife provided back massage on a fairly regular basis over the years, the evidence does not satisfy me that it was given on every second day and that averaged out over the whole period since October 1984 amounted to one hour per day.  I have already allowed for professional chiropractic or massage services.  Further, on the balance of probability, much of the care provided by the wife in the form of massage would be at least in part related to the plaintiff's depression and his bowel and urinary complaints none of which were attributed to the October 1984 incident.  In the circumstances it is virtually impossible to make any arithmetical calculation of the cost of care provided by the plaintiff's wife based on the Domicare rates.  Bearing in mind the parameters set by exhibit 42 and the generality and vagueness of the evidence in my view relating to this issue, I assess the amount under this head in the sum of $20,000.  There is no doubt that over the period of time the plaintiff's wife satisfied his need for services in this regard and in my view that amount adequately compensates her, bearing in mind commercial rates, for what she did.
           There is also a claim for ongoing future care to be provided by the wife.  Given my acceptance of the 15 year period referred to by Dr Curtis that means that the cost of future services should be allowed for the next 2.75 years.  I am prepared to allow $3,500 as the cost of providing that service.
           There is also a claim for the cost of future medications.  As with the past, medications referable to the bowel and urinary problems cannot be allowed.  I allow the cost of Panadeine and Aspro for the next 2.75 years, and allow $1,174 under this head.
           There is no doubt that at the time of the accident the plaintiff was a highly skilled and experienced station hand.  In addition to handling stock he was experienced in operating bulldozers and graders.  He was thus the sort of person who would be much sought after in rural areas.  The defendants were paying him well above the award for a station hand and that, in my view, is a reflection of his ability as a worker in rural industries.  I accept that calculation of economic loss should be made on the basis of an earning level of 150% of the award for a station hand.  At that level he would have earned $201,676 from the date of the accident to 3 February 1997 (exhibit 49).  As noted above he did earn income during that period and the total net figure is $110,127 (exhibit 43).  That means that the plaintiff suffered a net economic loss to date of trial of $91,549.
           The plaintiff is also entitled to recover future economic loss covering the period February 1997 to October 1999.  His current net yearly earnings would be (150% of station hand award) approximately $19,000 per annum.  I allow $50,000 for future economic loss.
           There are questions also to be decided as to the allowance of interest on past loss.  The action was commenced in 1986 and progressed reasonably until 1988.  The action then became dormant from 1988 to 1993 when an application was made pursuant to Order 90 rule 9 for leave to proceed.  The material in support of that application referred to the psychological trauma experienced by the plaintiff in consequence of police investigations into his uncle's death.  That was put forward as the excuse for his allowing the matter to lie dormant for five years.  Once leave was granted it would appear that the action was again prosecuted with reasonable diligence.  In the circumstances no interest should be allowed for the five year period of inactivity.  Most of the award for pain and suffering and loss of amenities should be attributed to the pre-trial period.  In the circumstances I will allow $10,000 for interest on past pain and suffering and loss of amenities.  It is difficult to make a precise calculation of interest on past specials because of a number of factors.  The plaintiff received weekly compensation from the Workers' Compensation Board totalling $17,481 and a final lump sum payment of $14,100.  Those amounts must be brought into account in determining interest on past economic loss.  Further, exhibit 43 shows reasonable earnings particularly in the years ended 30 June 1990 and 30 June 1991.  More than two-thirds of the amount allowed for past economic loss would be represented by loss of earnings since 1 July 1993 when the plaintiff last earned income.  Finally because of the difficulties referred to above there are problems in determining interest on the amount representing past care provided by the plaintiff's wife.  Given all of the circumstances I have calculated interest on special damages, past economic loss, and past care provided by plaintiff's wife in the sum of $12,000.

My assessment can therefore be summarised as follows:-
  $     
Pain and suffering and loss of amenities  40,000.00
Past economic loss  91,549.00
Special damages  14,717.00
Past care  20,000.00
Future care  3,500.00
Future medication  1,174.00
Future economic loss  50,000.00
Interest  22,000.00

TOTAL:242,940.00

There will therefore be judgment for the plaintiff for $242,940 with costs to be taxed.