Patorniti v Carter

[1997] QSC 122

IN THE SUPREME COURT

OF QUEENSLAND

No 1820 of 1994.

Brisbane

Before the Hon. Justice Williams

[Patorniti v. Carter]

BETWEEN:

PAUL ANTHONY PATORNITI
  Plaintiff

AND:

CATHERINE ANN CARTER
  Defendant

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 15/07/1997

CATCHWORDS:     NEGLIGENCE - defendant's car hits bicycle near intersection - in circumstance no contributory negligence.

PRACTICE - defendant states "not intend to contest the issue of liability" - held not preclude raising of issue of contributory negligence.

DAMAGES - general soft tissue injuries - development of post-traumatic stress disorder and pain disorder - psychiatric cripple - male age 39 at trial - total award $399,718.

Counsel:M Grant-Taylor for plaintiff

R Myers for defendant

Solicitors:Boyce Garrick Eastman for plaintiff

McInnes Wilson & Jensen for defendant

Hearing Dates:  31 January and 9 July 1997

IN THE SUPREME COURT

OF QUEENSLAND

No 1820 of 1994

Brisbane

[Patorniti v. Carter]

BETWEEN:

PAUL ANTHONY PATORNITI
  Plaintiff

AND:

CATHERINE ANN CARTER
  Defendant

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered  /  /1997

The plaintiff claims damages for personal injuries allegedly sustained when his bicycle was struck by a motor vehicle being driven by the defendant on 26 May 1992.  Counsel for the defendant conceded that there was negligence on the part of his client, but the issue of contributory negligence was raised.  Quantum was also a contentious issue at the trial.
           The incident occurred shortly after 4.00pm on the day in question at the intersection of Maroochydore Road with Amaroo and Baden-Powell Streets.  The intersection is not a normal "straight-through" one; it is somewhat hard to describe in words but is well depicted in the colour aerial photograph which is exhibit 39.  There are traffic lights at the intersection, but they do not control traffic turning left from Amaroo Street into Maroochydore Road; that was the route being taken by the defendant.  That traffic is faced with a sign reading "turn left at any time with care".  The plaintiff was travelling in a westerly direction along Maroochydore Road through that intersection.  The collision occurred at the point where there is a red "x" marked on exhibit 39; that is at approximately the point where the left-hand turn lane from Amaroo Street fully merges with Maroochydore Road.
           I accept that the plaintiff came to a stop because of a red light at the point where Maroochydore Road meets the intersection.  Apparently he came to a halt adjacent to the traffic island, which placed him in the right-hand lane.  When the light changed to green he let traffic travelling in the same direction through until the lanes to his left were clear and then proceeded across the intersection moving into the left-hand lane.  As he crossed the intersection he looked to his left into Amaroo Street and did not observe any vehicles.  He then continued on in the left-hand lane of Maroochydore Road.  He heard a screeching of brakes, looked under his left arm, and saw the defendant's vehicle about to collide with his rear wheel.
           PJ Kelsey, a young man, was a passenger in a motor vehicle stationary in Maroochydore Road, facing east, and in the lane adjacent to the turn right only lane as depicted in the photo exhibit 40.  At the time there were no vehicles in that turn right only lane impeding his view of where the collision occurred.  He was talking to his mother, who was driving, and generally facing towards the mouth of Amaroo Street.  He saw the plaintiff riding his pushbike through the intersection in the left-hand lane and saw a vehicle in the turn left lane from Amaroo Street apparently stationary.  He positioned the defendant's vehicle towards the end of the painted traffic island.  He saw the defendant's vehicle move forward whilst the cyclist was in front of her car and ultimately witnessed the collision between the driver's side headlight area of the car and the rear wheel of the bicycle.
           Both the plaintiff and Kelsey were adamant that the collision was with the rear wheel of the bicycle and I accept their evidence.
           I also accept that when the plaintiff looked to his left into Amaroo Street he did not see a vehicle.  That was probably as he crossed the mouth of Amaroo Street governed by the traffic lights.  Thereafter as he proceeded down the lane adjacent to the painted traffic island any vehicle in the turn left lane from Amaroo Street would have effectively been behind him.  Any look to the left would only have disclosed a vehicle alongside him; such a look would not have shown a vehicle which was effectively directly behind him.  But of course, from the perspective of the driver of such a vehicle the cyclist would have been almost directly in front.
           Clearly the defendant was negligent in failing to keep a proper look out, in failing to yield right of way to the cyclist, and in moving into the carriageway of Maroochydore Road without taking due care and attention.  The real question is whether or not there was any contributory negligence on the part of the plaintiff.  Counsel for the defendant submitted that, at worst for the defendant, the plaintiff was guilty of contributory negligence in failing to keep a proper look out, and contended that the degree of contribution should be assessed in the order of 20%.  He submitted that at the critical time the plaintiff was riding with his head down and not keeping an appropriate look out to the left.
           The issue is not an easy one to resolve partly because of the somewhat unusual nature of the intersection.  Ultimately I have come to the conclusion that at all material times the bicycle was really ahead of the motor vehicle - the collision was with the rear wheel, and that if the cyclist had looked to his left - even behind him to his left, he would at best have seen a motor vehicle which was obliged to yield him right of way and which was clearly in a position to do so on the assumption that the driver of that vehicle had seen the cyclist almost directly ahead.  In those circumstances a reasonable cyclist having seen the vehicle would have continued on in the way in which the plaintiff in fact did.  I have come to the conclusion that the defendant was in the controlling position.  On any view of the evidence the plaintiff must have passed across in front of her for his bicycle to be struck as it was; it was her gross negligence in failing to see him that was the real cause of the collision.  In her evidence the defendant said that she saw the cyclist apparently stationary towards the centre of the intersection as she moved off.  She did not see the cyclist again until her son, who was sitting behind her in the vehicle, "yelled out".
           In the circumstances I find that there was no contributory negligence on the part of the plaintiff and that the sole cause of the collision was the negligence of the defendant.
           I should also record that counsel for the plaintiff submitted, in accordance with the pleadings, that there was an agreement between the parties, reached before trial, to the effect that the defendant admitted liability so that contributory negligence could not be properly raised.  The letter from the defendant's insurer in question stated that "we do not intend to contest the issue of liability to pay your client damages for personal injuries".  There was also evidence from the solicitor acting for the plaintiff at that time that in a telephone conversation on the day that letter was received the representative of the defendant's insurer said that "liability was admitted".  It does seem to me that there is a distinction between saying that liability is admitted in the sense that damages are payable, and in saying that liability is admitted in the sense that not only are damages payable but contributory negligence is not in issue.  Contributory negligence is not a defence, but is something which goes in reduction of damages of payable.  I dealt with a similar question in Vonhoff v. FAI General Insurance Company Limited, unreported, No 5932 of 1996, judgment 6 August 1996, and I generally adhere to what I said therein.  Counsel for the plaintiff relied heavily on the passage in the judgment of McPherson J in Newton, Bellamy and Wolfe v. State Government Insurance Office (Qld) 1986 1 Qd. R. 431 at 443. There his Honour observed that where an insurer had "confirmed that liability is not an issue" that precluded it "from putting forward any defence whatever which would impeach that liability". That statement is undeniably correct. What, however, in my opinion it leaves open is whether or not such a concession prevents the insurer from contending that damages should be reduced because of contributory negligence. For the reasons I have articulated here and in Vonhoff it is my view that the insurer is not so precluded.  Of course, words could be used which would put the matter beyond doubt one way or another.
           The plaintiff was born on 4 October 1957, which means that he was aged 34 at the time of the accident and is now aged 39.
           When the defendant's vehicle struck the rear wheel of his bicycle the plaintiff was thrown onto the bonnet of the car, came into contact with the windscreen, and then fell reasonably heavily to the roadway on the passenger side of the vehicle.  He said that he was then in a lot of pain, and mentions specifically his back and ankles.  He was taken by ambulance to the Nambour General Hospital.  Plain radiographs showed no injury and he was discharged into the care of his local medical officer.  The medical reports suggest that the plaintiff's main complaints in the weeks immediately following the incident were pain in the lumbar region and generalised headaches.  He was examined about a fortnight after the accident by Dr Jayasinghe, a neurologist, who found no neurological abnormalities.  A C.T. scan of the head was normal.  Dr Jayasinghe expressed the view that the plaintiff had suffered some concussion in the incident and was experiencing post-concussional muscle contraction type headaches.
           On 3 June 1992 the plaintiff's general practitioner, Dr Scanlan, referred him back to the Nambour Hospital because of the following complaints:  loss of sensation of the right little finger, loss of sensation of the left middle ring and little fingers, headaches radiating from the neck to the bitemporal region, insomnia, back pain related to lumbar and central regions with radiations towards the left buttock, tenderness of the anterior right tibia border, and painful eyes with no loss of visual acuity.  Those complaints were the subject of examination and testing at the hospital.  Localised tenderness was noted at various points on the body.  The doctors concluded that he had suffered soft tissue injury in the incident which was the cause of the then complaints.
           Dr M Welsh, an orthopaedic surgeon, examined the plaintiff on 7 September 1992.  A specific complaint of low back pain particularly in the right sacro-iliac joint area was made.  The plaintiff also described parasthesiae in the sole of his right foot and a shooting pain in the anterior left thigh radiating to the knee.  On examination the doctor could detect no neurological deficit in either the upper or lower limbs.  He concluded the plaintiff had symptoms of a soft tissue injury to his cervical spine.
           An MRI of the plaintiff's lumbar spine was carried out on 5 April 1993.  It showed minor degenerative changes at the L4/5 and L5/S1 levels with a small posterior disc protrusion at the L5/S1 level.
           Dr Welsh again examined the plaintiff on 5 July 1993.  At that time there was complaint by the plaintiff of tenderness over the whole of the cervical spine.  The doctor noted exaggerated or dramatic responses to testing spinal movement and function.
           Dr JH Morris, another orthopaedic surgeon, examined the plaintiff for the defendant's solicitors in July 1995.  On that occasion the plaintiff complained of bad headaches, pain in the shoulder and neck, and pain in the lumbar area all the time.  The doctor carried out a physical examination and also reviewed x-rays, C.T. scans and the MRI.  Relevantly he concluded:

"Mr Paul Patorniti was knocked off a pushbike by a car and suffered injuries to his cervical and lumbar spines.  The x-rays have shown that he has had degenerative changes of L4/L5 and L5/S1 together with a spondylolithesis at that level.  This man appears to have been psychologically crippled by this accident.  He did have some degenerative changes in the lumbar spine but that would not be unexpected with spondylolithesis at L5-S1.  While actually being watched with different movements, his range of movements were restricted, however, other movements such as putting on shoes, getting in and out of chairs, were done rapidly and with no evidence of any pain or restriction of movement.  Similarly neck movements were quite normal.  His gait was quite normal and I would think that he probably has had an aggravation to his degenerative condition of his lumbar spine at the time of the accident.  He has recovered from this and I would say that his orthopaedic disability is now very small.  When he walked there was no evidence of any restriction of his back or leg movement.  I would have thought that he was capable of working in many industries but is unlikely to because he is now on a pension."

I accept the conclusions of Dr Morris, which appear to be generally in accord with those reached by Dr Welsh.  There was soft tissue injury to the cervical and lumbar spine as a result of the accident, and that aggravated the pre-existing degenerative condition.  However by about mid-1995 that aggravation had been subsumed into the normal degenerative process.  It follows that the plaintiff does not have any ongoing physical injury as a result of the accident which is causing him disability or affecting his lifestyle.
           That the plaintiff has been unable to work since the accident is due to the fact that he is, to use the phrase in the report from Dr Morris, "psychologically crippled".  The significant alteration to his lifestyle has also resulted from that.  Though the plaintiff was cross-examined to contrary effect, counsel for the defendant in his final address conceded that the plaintiff was not a malingerer and had genuine psychiatric injuries.  Indeed there seems to be a degree of unanimity between the psychiatrists who have treated and examined the plaintiff over recent years.
           Dorothy Hallam, a clinical psychologist, examined the plaintiff on 23 September 1992.  She found that the plaintiff was "still in a state of shock and anger about this intrusion and disruption of his life."  She noted he felt a sense of injustice that his life and family relations had been disturbed without any fault on his part.  She concluded that as a result of the accident the plaintiff "suffers from chronic pain, restricted physical movements and from stress resulting from the loss of his role in the family.  He has lost the previous quality of his marital and sexual relationship and he feels apart from his children now.  He has lost the working role that has always been important to him.".
           Dr Clive Fraser, a consultant psychiatrist, began treating the plaintiff in September 1992.  The plaintiff has been making regular visits to Dr Fraser for consultations and treatment since that time and that is still continuing.  In his first report of 5 November 1992 Dr Fraser expressed the following conclusion:

"In respect to his psychiatric diagnosis he has a depressive illness occurring in conjunction with post-traumatic stress disorder.  His chronic pain further contributes to these symptoms.  In my opinion there is a direct relationship between his injury on the way home from work and the development of his psychiatric symptoms.  I would therefore regard his psychiatric problems as being compensatable.

His condition is stable and has shown minimal evidence of improvement.  ...  He will require ongoing treatment of his depressive illness and I anticipate that this treatment will be necessary for at least another six months."

The next report from Dr Fraser is dated 22 April 1993.  The following relevant passages appear therein:

"Prior to his injury he was a weightlifter and kickboxer and physical fitness has always been a significant factor in his own image of himself.  Since his accident there has been a substantial tendency to somatize with aches and pains all over his body.  He has had extreme feelings of anger towards the woman who was the driver of the car that struck him and he feels anger that she did not offer any apology or assistance and that she has sought damages from him.  His angry feelings also extend to The Workers' Compensation Board, the Nambour General Hospital and many of the doctors who have been involved in the assessment of him.  His family have also witnessed his house being under surveillance and he feels this has been a further intrusion upon him.

He has had substantial phobic symptoms and still gets very anxious if he drives past the scene of the accident.  He has an exaggerated startled response if he sees any yellow cars (like the one that hit him) and his sleep has been disturbed by nightmares and during the day he has had flashbacks of the accident.  He sleeps with a large knife with a 60cm blade and says that he does this because he has not felt safe and secure since the accident.  He tells me his flashbacks are of a car with screeching brakes.  ...  Until recently he has insisted that he will either return to his old job or nothing else at all though he feels he has lost faith with his workmates and as time passes it seems less likely that he will reintegrate with them.  He frequently becomes very angry when rehabilitation is discussed and claims that he is being labelled as "lazy" or a "bludger".  Essentially he has expressed his angry feelings about the incident with somatization and that he has personalised the accident as an assault upon himself."

At that time Dr Fraser recommended treatment under the Pain Management Program at the Belmont Private Hospital.
           The plaintiff attended the Pain Management Program at the Belmont Private Hospital as an inpatient from 26 April to 21 May 1993.  Exhibits 23-27 inclusive report on his participation in that program.  The following are some of the relevant comments contained therein.  The plaintiff reported no real change in his pain levels with the increase in activity during the program but indicated he was more confident in managing his pain.  General fitness improved but the post-traumatic stress syndrome continued to be a problem.  He was also unable to formulate definite goals for the future.  It was still important for the plaintiff to resolve his anger over the accident and develop a better acceptance of his situation.  He will need future psychological support.  Whilst he may be able to return to "some gainful employment later on" it is "unlikely that he will return to any work activities in the short or moderate term".
           The final report from Dr Fraser is dated 3 December 1993.  As already noted, there had been regular attendances for treatment during the period between reports.  Relevantly in this report Dr Fraser made the following observations:-

"His psychiatric diagnosis is of a chronic pain syndrome, major depression and post-traumatic stress disorder.  All of these symptoms are consequent upon a pushbike accident on 25 May, 1992 ...  There was no evidence of any significant psychiatric pathology before the accident.  ...  He has responded to his situation with a lot of angry acting-out behaviour and at various times he has communicated to me veiled threats that others would be made to suffer for his plight.  ...

Despite ample psychiatric pathology if has been very difficult to enlist his cooperation with treatment at times.  He has often been reluctant to take anti-depressants even though they have been of obvious benefit to him.  He has been very reluctant to go back to the scene of his injury and sometimes regards attempts at treatment as having a punitive motivation.  Unfortunately his problems all occur on a background of paranoid personality and much of this has developed in the context of being teased about his ethnic background throughout his life.

...  He has generally decompensated when efforts have been made to assist into workplace rehabilitation.  He feels threatened by any movement in this direction and these arrangements are not pursued as they seem destined to fail.  Most recently I have negotiated one last attempt at this with him.

...  He still has significant pain symptoms over wide areas of his body and associated post-traumatic stress symptoms with nightmares, flashbacks and phobic avoidance of the scene of the accident.  His mood does tend to fluctuate with periods of anger, irritability, aggressiveness and depression.  There has been some evidence of responsiveness to treatment ... though he has been unwilling to increase his dose ... .

I believe that he has had 18 months in which to recover and that his pursuit of civil compensation may be a factor in his continuing disability."

Recently on 12 June 1997 the plaintiff was examined by Dr B Wiltshire, a clinical psychologist.  All that need be quoted from his report are the following passages:

"He is severely depressed, discouraged, and withdrawn and is likely to be plagued by thoughts of worthlessness, hopelessness, and personal failure.  ...

On the basis of ... my psychological assessments of him, it is my opinion that Paul Patorniti is still suffering from chronic post-traumatic stress disorder, depression which at times reaches near suicidal intensity, phobic anxiety in relation to some traffic conditions, and pain disorder.

It is my further opinion that while resolution of the current proceedings may well reduce some of the symptomatology, these conditions are now so well established that Mr Patorniti will continue to suffer from them to such a degree that it is more likely than not that he will remain entrenched in illness behaviour and be unable to return to work."

Under cross-examination Dr Wiltshire expressed the view that any one of the conditions referred to in his conclusion "may well render a person psychologically so incapable of concentrating on the job that they could not do the work".  Because the illness behaviour was well established and "quite entrenched" he thought it less likely that the plaintiff would be able to return to work once the litigation was resolved.  He agreed that the resolution of the litigation would be a factor in reducing the plaintiff's anger and relevant to the issue as to whether he is likely to return to work again.  Generally the witness expressed the view that because the post-traumatic stress syndrome and pain disorder were entrenched there was less likely to be any significant change in the plaintiff's capacity on the resolution of the litigation; that was at least likely to be the position in the short and medium term.
           Dr Reddan, a consultant psychiatrist, examined the plaintiff on behalf of the defendant on 29 June 1995.  She concluded that as a result of the accident in May 1992 the plaintiff has developed post-traumatic stress disorder characterised by pervasive anxiety, sleep disturbance, and the avoidance of phenomena and intrusive recollections about the accident.  She also concluded that the plaintiff had developed a tendency to somatise, that is express emotional distress through physical complaints.  She expressed the view that he had substantially improved over time and that the plaintiff now suffered from only a mild residual pain disorder.  She stated she would agree with Dr Fraser's comments in regard to the plaintiff's personality.  In that regard she said:  "He is a rigid man who has found it difficult to address and change his attitudes and indeed he gave the impression at interview that he has consistently refused to involve himself in any retraining.  This of course may be related to his dull intelligence as well in that he is unlikely to be suited to anything other than manual work."  In conclusion Dr Reddan expressed the opinion that the plaintiff still displays "some features of post-traumatic stress disorder and pain disorder"; the former she assessed as being of "mild-moderate degree".  She then expressed the opinion that the post-traumatic stress disorder alone would not prevent his return to work; although the pain disorder was considerably improved it continued to persist and was more likely to prevent his return to work.  His personality was also a factor making it unlikely that he would return to work in the short term.  At the very end of her report she expressed the view that it was possible that the plaintiff "may feel able to return to work once the medico legal process has concluded".
           That last observation was the subject of oral evidence, which can be summarised by saying that Dr Reddan considered that the plaintiff was focusing his anger on the accident and the defendant as the cause of it and that if that focus altered after the conclusion of the litigation there was a chance the rehabilitation process would be facilitated.  She agreed that there would be no significant change in the short term; after a lapse of about twelve months she thought there may be some prospect of change leading ultimately to a return to some form of employment.  The doctor did not, of course, speak with any certainty in that regard.
           Only Wiltshire and Reddan were subjected to any cross-examination, and as is evident from the above extracts from reports that there is a deal of agreement in the assessments made by the various medical practitioners of the plaintiff's condition.  There is no specific physical cause for the pain he experiences, but it is obvious from looking at the plaintiff that he is disturbed and agitated, and at least gives the impression of experiencing pain.
           On the whole of the evidence the conclusion is almost inescapable that the plaintiff has for the last five years been a psychiatric cripple as a result of the accident.  The extent to which there will be any changes in his condition in the future is somewhat speculative.  He has now been receiving regular treatment for almost five years, and has been through one Pain Management Program without any significant improvement.  The resolution of the litigation will assist in his rehabilitation, if only because within a reasonable period of time his focus is likely to change from the accident and those responsible for it to his future with his family.  If there is an improvement in his psychiatric condition there is no physical reason why he cannot return to work.  But in saying all that one must also recognize the possibility that there may be no improvement in his condition in the future.
           The plaintiff has at best been a semi-skilled worker throughout his working life.  He was in regular employment, and was able during the building boom on the north coast in the 1980's to earn a very good living.  In about March 1990 he commenced employment with the Maroochy Shire Council as a waterworks labourer; though he was earning somewhat less than he previously had done in the building industry he had a secure job.  In the year to 30 June 1991 his net income was $18,141, and in the period 1 July 1991 to 26 May 1992 his net income was $17,719.  There is no doubt that the plaintiff was a workaholic, and prided himself on physical fitness.
           I am satisfied on the whole of the evidence that the plaintiff, barring unforeseen circumstances, would have continued working, probably with the council, as a semi-skilled labourer until retirement at age 65.
           The plaintiff's relationship with his wife and children has been severely affected by his condition since the accident.  The intimate side of the marriage has been substantially effected, and he has difficulty socialising with family and friends.  He has a daughter aged 14 and a son aged 12.  He finds that he cannot play with them and that leads to a perception in his mind that he is something of a failure as a father.  He drives the children to and from school and spends the rest of the day either sitting around the home or in a park.  He does a little in the garden but claims to get frustrated.  He does odd jobs around the house like washing the dishes and dusting the furniture.  The children and his wife do more of the heavier work such as mowing.
           Immediately after the accident the plaintiff needed help from his wife with dressing.  She also had to drive him in that initial period for medical appointments and physiotherapy.  Also in that initial period after the incident the plaintiff's wife assisted with bathing him, getting hot water bottles and the like.  He also needed additional help with eating meals.  He was confined to bed during the first couple of weeks after the accident for about three hours a day.  The other evidence from Mrs Patorniti as to what additional work she had to do was rather vague.
           It is against that background that damages must be assessed.
           As already noted the plaintiff is not suffering from any ongoing physical disability or physical condition which is actually causing pain.  For a relatively short time after the accident he did experience pain and discomfort from soft issue injuries to various parts of his body, in particular his back.  He also probably suffered mild concussion.  Thereafter he has suffered from a post-traumatic stress disorder and a somatoform pain disorder which has compounded his personality defects and rendered him a psychiatric cripple.  His lifestyle has been significantly affected by his condition and that has continued for a number of years despite treatment.  The probability is that it will continue for a period of time, but it cannot be said with certainty that his present condition will remain, unabated, until aged 65 or death.  He is undergoing constant psychiatric treatment and though it has not been all that successful to date his condition may well improve with the passage of time.  The finalisation of the litigation and other factors, such as the changing family situation as his children grow older, may well mean that the pressures he presently experiences will alter, and there will be a corresponding improvement in his condition.  It may well be that in ten years or so time he will be much happier within himself and the dramatic and tragic consequences of the relatively minor physical injuries he sustained in the incident will be of less significance.
           In the light of all those considerations the assessment of damages for pain and suffering and loss of amenities is difficult.  One cannot approach the assessment in this case with the same degree of certainty that one can approach an assessment where there has been an observable and definable physical injury which will be permanent.  Doing the best I can on the whole of the evidence I assess damages for pain and suffering and loss of amenities in the sum of $45,000.
           I would apportion $22,000 of that amount to pain and suffering and loss of amenities experienced during the past five year period and allow interest thereon at the rate of 2% per annum.  I allow interest on past pain and suffering and loss of amenities in the sum of $2,200.
           Accountants retained by the plaintiff's legal representatives calculated the plaintiff's past economic loss on the basis of continued employment as a waterworks labourer under earnings similar to those of a person employed in a similar position in the sum of $97,884.  In the course of final addresses counsel for the defendant did not dispute that calculation.  I assess past economic loss in the sum of $97,884.
           The plaintiff received payments by way of workers' compensation (because he was returning home from work when the incident occurred) in the total sum of $29,550.  That amount must be brought into account in determining interest on past economic loss.  Bearing in mind that that sum was paid over a period of time in the early stages of the five year period, and bearing in mind that in consequence much of the award for past economic loss would reflect losses in the more recent years I assess interest on the sum of $68,000 at the rate of 4% per annum for a period of three years.  I therefore allow interest on past economic loss in the sum of $8,160.
           I should mention that counsel for the defendant asked that I take into account in calculating interest on past economic loss the fact that for some period of time the plaintiff has been receiving a disability pension.  I have not done so because the evidence does not permit me to find with any degree of certainty the period during which that disability pension has been received and the quantum thereof.
           The calculation of future economic loss is difficult for the same reasons that the calculation of damages for pain and suffering and loss of amenities is so.  One cannot say with any certainty that the plaintiff's earning capacity has been totally and irrecoverably destroyed.  Given his present overall condition he cannot be gainfully employed.  But there is no physical reason why he could not return to work if his psychiatric condition improved.  There is not likely to be a significant improvement in his overall condition for at least a number of years, but he is still a relatively young man and hopefully with the passage of time and treatment he will become employable.  Then the difficulty will be in his finding a job given the fact that he had been out of the workforce for such a lengthy period of time.  The accountants have calculated his future economic loss on the basis of total and permanent unemployability as a waterworks labourer under earnings similar to those of a person employed in a similar position as being $287,107 to retirement of age 65.  That has to be discounted for the normal vicissitudes of life.  But further, in my opinion, it has to be significantly discounted because of the real possibility of this man being able to earn not insignificant income in future years.  Even if one says that the passage of time and treatment over ten years will be required before he can be said to be employable that would still leave some ten years at least working life ahead of him.  I do not overlook, as already noted, the difficulties of such a person obtaining employment and the fact his condition may not improve.  But in all the circumstances the discounting from the figure of $287,107 must, in my view, be significant.  I allow $175,000 for future economic loss.
           If, as I have found would be the probability, the plaintiff remained in employment with the local shire council until age 65 he has lost the benefit of his employer's contributions to superannuation.  This is a matter addressed by the accountants in their report.  Based on that report counsel for the plaintiff submitted that I should allow $40,900 under this head.  I cannot see how the accountants have arrived at their figure for the employer's contributions.  Those contributions would currently be 6% of earnings and that, under the current legislation, would increase within a few years to 9%.  The figure actually arrived at by making such a calculation would then have to be discounted on the same basis as I have discounted for future economic loss.  Having regard to the various figures which appear in the evidence and making the appropriate discounting I assess the loss of employer's contributions to superannuation in the sum of $20,000.
           The plaintiff has also suffered a diminution in long service leave entitlements he would have received if he had remained in employment with the Maroochy Shire Council.  On the accountant's figures that is to be assessed in the sum of $2,334 to retirement at age 65.  Counsel for the plaintiff submitted that after discounting I should allow $1,626 under this head and that figure is reasonable.  I assess the value of diminution in long service leave entitlements in the sum of $1,626.
           A schedule was placed before me containing details of special damages, and that schedule was not disputed by the defence.  It totals $27,963 and that figure should be allowed.
           The plaintiff claimed interest on items in that schedule where he was out of pocket; travelling expenses, pharmaceutical expenses, purchase of batteries for TENS machine, purchase of hot water bottle, masseur expenses, and physiotherapy expenses.  Interest was claimed on $1,486 at 6% over five years.  That calculation was not seriously challenged and I allow interest on special damages in the sum of $457.
           As already noted there has been a claim for past and future care under the Griffiths v. Kerkemeyer principle.  I am prepared to accept that for the two weeks immediately following the accident the plaintiff was required to call on his wife's services for three hours per day each day of the week.  The relevant rate at that time was $9.50 per hour.  For that two week period the sum of $399 will be allowed.  Thereafter from 10 June until 30 November 1992 I am satisfied that on an average two hours per day was spent by the wife in providing the plaintiff with services.  During this period there was the necessity for her to drive him for medical and physiotherapy treatment; the plaintiff did not drive for some time after the accident.  Again for that 174 day period the relevant rate was $9.50 per hour.  I allow $3,306.  From 1 December 1992 until the present the time spent by the wife in providing services was significantly less.  The evidence is rather vague but it does indicate that she has to do the heavier gardening and heavier housework where previously she would have been assisted by the plaintiff or he would have done it all himself.  In the circumstances it is not unreasonable to allow 1.5 hours each week over that period.  Until 31 October 1995 the relevant rate was $9.50 per hour, and thereafter $10 per hour.  In the circumstances I allow $2,166 for the period to 31 October 1995 and $1,320 from then until the date of trial.  That means the total assessment for past loss under the Griffiths v. Kerkemeyer heading is $7,191.
           Interest should be allowed thereon at 2% over the whole period.  I allow interest in the sum of $737.
           So far as future Griffiths v. Kerkemeyer is concerned I find that services at the rate of 1.5 hours per week will continue for a period of time.  Counsel for the plaintiff asked for 1.5 hours per week at $10 per hour over 25 years discounted at 3%.  That would give a figure of $13,830.  Again that must be significantly discounted for the reasons previously referred to in relation to the assessment of damages for pain and suffering and loss of amenities and future economic loss.  In any event as the plaintiff gets older his need for some of those services will diminish and it cannot be said that the demand for those services will continue as time goes by.  That should result in an even greater discounting.  In the circumstances I assess future Griffiths v. Kerkemeyer in the sum of $7,000.
           The plaintiff has a current weekly expenditure of approximately $14.60 with respect to medical expenses.  That may well continue for some time but, of course, if there is an improvement in the plaintiff's psychiatric condition then it will decrease.  I am by no means satisfied that there will be a specific ongoing loss of $14.60 for even the whole of the next ten years.  Counsel for the plaintiff asked for that sum discounted at 5% over ten years which would given $6,000.  That, in my view, does not reflect the matters to which I have previously referred to in these reasons justifying a discounting.  In the circumstances I allow $3,500 for future medical expenses.
           A similar claim was made for future pharmaceutical expenses.  It was said that the current expenditure was $12 per week and counsel for the plaintiff asked for an amount of $4,960 which was $12 per week discounted at 5% over ten years.  Again that does not, in my view, take into account the discounting factors to which I have already referred.  I allow $3,000 under this head.  My assessment can therefore be summarised as follows:-

(i)Pain and suffering and loss of amenities  $45,000

(ii)Interest thereon  $2,200

(iii)Past economic loss  $97,884

(iv)Interest thereon  $8,160

(v)Future economic loss  $175,000

(vi)Loss of employer's contribution to superannuation  $20,000

(vii)Diminution in long service leave entitlements  $1,626

(viii)Special damages  $27,963

(ix)Interest thereon  $457

(x)Past Griffiths v. Kerkemeyer  $7,191

(xi)Interest thereon  $737

(xii)Future Griffiths v. Kerkemeyer  $7,000

(xiii)Future medical expenses  $3,500

(xiv)Future pharmaceutical expenses  $3,000

TOTAL:$399,718

There will therefore be judgment for the plaintiff for $399,718 with costs to be taxed.