Pawlak v Pesaturo No. Scgrg-94-266 Judgment No. S6407
[1997] SASC 6407
•31 October 1997
PAWLAK v PESATURO
Civil
Duggan J
Introduction
The plaintiff was injured in a road accident which occurred on 23rd May 1991 when the motor cycle he was riding came into collision with a vehicle being driven by the defendant. The accident took place at the junction of Regency Road and Humphries Terrace, Kilkenny. The matter was set down for assessment of damages after the plaintiff received judgment in his favour for 95% of his damages to be assessed.
Immediately after the accident the plaintiff was taken to the Queen Elizabeth Hospital. His injuries were serious. They included a closed head injury, extensive facial injuries including fractures, a fracture of the right tibial plateau and damage to the spinal cord. Since the date of the accident he has undergone many operations and been involved in a long rehabilitation programme which I will summarise later in these reasons.
An open reduction and internal fixation of the right tibial plateau fracture was performed at the Queen Elizabeth Hospital. Plain x-rays of the cervical spine did not disclose any abnormality, but the plaintiff was taken to the Royal Adelaide Hospital for a magnetic resonance scan and this revealed cord oedema and contusion of the fifth and sixth cervical vertebral levels. These signs were consistent with spinal cord injury and it is clear on the evidence that the plaintiff did suffer from such an injury; Dr Marshall referred to it as "an incomplete spinal cord injury". The damage to the plaintiff’s central nervous system is apparent in the consequences which he now suffers, including lack of sensation, spasticity, bowel and bladder problems, spasms, decreased sexual functioning and other deficits referred to in the evidence. Furthermore, because there has not been a complete paralysis, the plaintiff suffers considerable pain attributable to the accident in various parts of his body.
Thoracic spine x-rays revealed crush fractures of the vertebrae at the T5, 6 and 7 levels, but before surgery could be undertaken, the plaintiff developed a large left deep venous thrombosis affecting the illiac vein and this had to be heparinised. The plaintiff then underwent surgery so that Harrington Rods could be inserted from T2 to T9. The fractures of his facial skeleton were treated with open reduction.
A schedule of surgical procedures provided at the hearing provides an insight into the injuries suffered by the plaintiff and the extensive procedures he has undergone in the course of their treatment.
Surgical Procedures
Date Hospital Operation/Treatment Injury
23-May-91 QEH Open reduction and internal fixation of the tibial plateau fracture Leg
30-May-91 RAH Mr Pawlak admitted for an MRI Scan but this had to be abandoned Spine
31-May-91 RAH Mr Pawlak admitted for MRI Scan Spine
01-Jun-91 to 04-June-91 QEH Mr Pawlak transferred for ongoing treatment
05-Jun-91 RAH Thoracic spine x-rays and CT scan Spine
07-Jun-91 RAH Heparinisation of the iliac vein Internal injuries
07-Jun-91 RAH MRI Scan Internal injuries
07-Jun-91 RAH Birdsnett Umbrella into the inferior vena cava Internal injuries
08-Jun-91 RAH Spinal decompression Spine
08-Jun-91 RAH Harrington rods inserted between T2-T9 Spine
08-Jun-91 RAH Extensive reconstruction of Mr Pawlak’s facial features Pan-facial injuries
09-Jun-91 RAH Intensive Care Unit for 24 hours
13-Jun-91 RAH A compression bandage on the face Pan-facial injuries
14-Jun-91 RAH CT myelogram Head injuries
14-Jun-91 RAH CT head scan Head injuries
01-Jul-91 RAH Broken teeth removed Dental
11-Jul-91 Hampstead Centre Marek Pawlak transferred for rehabilitation
04-Sep-91 St Andrews Hospital Cystoscopy and crushing and removal of stones in bladder Bladder
08-Nov-91 Hampstead Centre Discharged
17-Nov-91 Parkwynd Hospital Jaw reconstruction comprising two operations Pan-facial
29-Nov-91 Parkwynd Hospital Discharged
27-Apr-92 RAH Harrington rods removed Spine
01-May-92 RAH Discharged
24-Jul-92 Calvary Hospital Surgery to reposition his upper jaw Pan-facial and jaw
16-Oct-92 Calvary Hospital Bone graft of nose and excise of facial scars Pan-facial
13-Apr-93 Wakefield Memorial Hospital Arthroscopy in both knees Knees
10-Sep-93 Calvary Hospital Right iliac crest bone graft
10-Sep-93 Calvary Hospital Small tissue expander into dorsum of nose Pan-facial
10-Sep-93 Calvary Hospital Bone graft to the anterior maxilla
10-Sep-93 Calvary Hospital Left maxillary sinus and osseo integrated prosthesis into mandible
10-Oct-93 Calvary Hospital Removal of tissue expander Pan-facial
10-Oct-93 Calvary Hospital Bone graft of nose Pan-facial
17-Jan-94 Calvary Hospital Dental/mouth implants Dental
21-Jul-94 Calvary Hospital Tip of nose reconstruction Pan-facial
21-July-94 CalvaryHospital Rasp of right cheek Pan-facial
21-Jul-94 Calvary Hospital Dental/mouth implants Dental
03-Nov-95 Calvary Hospital Dental/mouth implants Dental
11-Mar-97 to04-Arp-97 Hampstead Centre Treatment for chronic constipation Excretory system
Dr Abbott was called as part of the plaintiff’s case. He is Senior Visiting Consultant Dental Surgeon at the Royal Adelaide Hospital. He is also deputy director of craniofacial research at the Women Children’s Hospital. He has treated the plaintiff since the accident and first saw him shortly after the accident when the plaintiff was still unconscious. On this occasion Dr Abbott obtained impressions of the plaintiff’s mouth as a preliminary to jaw surgery which was to be carried out by the craniofacial reconstruction team. Technicians manufactured a splint from the impressions which was used during the course of treatment of the facial fractures. Dr Abbott noted that a large number of teeth were severely damaged. There was a bridge between teeth 14 and 16 in the upper right quadrant which had been used to replace tooth 15. This had been inserted prior to the accident. However it was necessary to replace the bridge after the accident.
The next occasion when Dr Abbott saw the plaintiff was on 1st August 1991 after craniofacial surgery. Nine of the severely damaged teeth, including the upper front teeth, had been extracted during surgery.
The plaintiff was seen again in January 1992. Dr Abbott observed the plaintiff’s bite or occlusion. He described what he saw as a "class III malocclusion" with the lower teeth in front of the upper teeth. Before the accident the plaintiff’s lower teeth were behind the upper teeth which is the normal or usual condition. There was also a right side posterior crossbite which meant that the upper teeth on the right side came down on the inner side instead of the outer side. There was no dispute that all of these conditions stemmed from the accident.
Dr Abbott said that the plaintiff was particularly sensitive about his appearance and he wanted to remain in hospital rather than face his family at home before the treatment had been carried out. As a temporary measure, therefore, Dr Abbott constructed an upper partial denture.
Over a period of time the plaintiff underwent a number of operations to restructure his jaws, including bone grafting. Then, when it was appropriate to do so, Dr Abbott inserted four upper and two lower titanium implants into the jaw bones. Later, crowns made of porcelain fused to gold were put in place. Other procedures were undertaken over time including bridge work and root canal work.
Mr Hall was called to give evidence by the plaintiff. He is an orthopaedic surgeon who specialises in spinal cord injuries. The plaintiff came under his care in the Spinal Injuries Unit at the Royal Adelaide Hospital. Spinal cord impingement was apparent from the plaintiff’s loss of function of the lower limbs and from magnetic resonance imaging. Accordingly Mr Hall recommended decompression of the spinal canal and stabilisation of the spinal column. These procedures were carried out.
Mr Hall described the plaintiff’s present condition as an incomplete C5 quadriplegia. In his report dated 13th January 1992 Mr Hall pointed out that the plaintiff had "undergone a number of major surgical procedures and suffered numerous complications and on more than one occasion during his hospital stay Mr Pawlak was comatose and gravely ill". In another report written in December 1994 Mr Hall stated:
"It is difficult to assess Mr Pawlak’s capacity for work. He certainly will not be able to return to his former duties. He may be able to work limited hours in sedentary duties although realistically the outlook is bleak.
I have previously assessed permanent residual physical impairment in my report dated the 4th June 1993.
The prognosis is guarded."
Mr Hall referred to the likelihood that the plaintiff will develop neuropathic joints, a matter which I discuss later in these reasons and he stated that, eventually, the plaintiff may be confined to a wheelchair.
Rehabilitation
The plaintiff was transferred to the Spinal Injury Unit of the Hampstead Rehabilitation Centre on 11th July 1991 and remained there until discharged on 8th November 1991. Dr Ruth Marshall, the Director of Orthopaedic and Spinal Injury Rehabilitation at the Centre gave evidence of this period of rehabilitation. In her report of 31st March 1992 she described the plaintiff’s condition at the time of admission to the Centre and his progress during his stay there:
"At that stage he had commenced mobilisation and was able to perform standing transfers with two people assisting him. He had poor leg control but was able to sit on the edge of the bed. Upper and lower limb power was significantly reduced with the left side being somewhat worse than the right. He was able to feed and shave himself and complained of reduced sensation on the left side of his body. Because of his facial fractures he could only manage a ‘non-chew’ diet. Mobilisation was made more difficult by pain in the right knee secondary to the fracture of the tibial plateau, and a further urinary tract infection. He also suffered from pain at the level of the chest lesion which did not respond to medications, so TENS was tried.
Over the ensuing weeks Mr Pawlak continued to suffer from pain and was concerned by the swelling and disfigurement of his face. His bladder was managed with an indwelling urethral catheter and his bowels worked well with the Spinal Injury Unit second day regime. He was woken at night by extensor spasms and so was commenced on baclofen.
By early August he was able to dress the upper part of his body and was generally working hard in his rehabilitation programme. Although his pain was slightly less, he complained of a funny sensation all over his body and was commenced on carbamazepine and amitriptyline to deal with this dysaesthesia. He rapidly learnt to manage a wheelchair adequately and was able to transfer in the ward using a sliding board and only stand by assistance.
He continued to improve but noticed that as the facial swelling subsided he had a loss of sensation over the maxillary area on both sides of his face.
In early August bladder function returned had he was able to void without the use of a catheter or drugs. Renal ultrasound, however, revealed bladder calculi which were thought to have developed around the balloon of the catheter and when it had been in situ. After discussion with Mr Bolt, Mr Pawlak was subsequently transferred to the St Andrews Hospital for cystoscopy and crushing and removal of the stones without complication. Renal and bladder function was otherwise good.
Mr Pawlak continued to improve in function and in September commenced weekend overnight leaves. He continued to have problems with pain, hypersensitivity in the hands and dysaesthesia. In early October he complained of left wrist pain which interfered with his activities of daily living and on examination was tender in the anatomical snuff box and over the abductor tendons of the thumb. Steroid injection was suggested for this.
During this time he was seen by Dr George Rawson for relaxation therapy and counselling and he was reviewed by the plastic surgeons or further management of his facial injuries.
He was discharged for the ward to home on the 12th November with plans for him to be admitted to Parkwynd Hospital for staged facial reconstruction procedures on 18th November.
At the time of discharge from his inpatient programme, Mr Pawlak had a mild residual limb weakness with patchy sensory loss. His right plantars were downgoing and his left plantars were equivocal, and apart from increased knee jerks he was not hyperreflexic. He was ambulant with a walking frame but used a manual wheelchair for longer distances, was independent in personal self care activities, was able to drive an automatic motor vehicle with power steering, and bladder and bowel were functioning normally. He was using carbamazepine to help control his dysaesthesia, baclofen to control his spasm, and Capadex for pain. Bisalax suppositories were used when required."
When Dr Marshall examined the plaintiff on 23rd March 1992 she noted that he walked with a "wide based gait". He was using a walking stick to walk longer distances. He complained of numbness and lack of sensory input in various parts of his body. He said he experienced chest pains and spasms. He also complained of constipation. His lack of sensation and feeling was rendering it difficult for him to empty his bladder and bowel. He was prescribed medication for all these problems and Dr Marshall stated in her report:
"In summary, Mr Marek Pawlak has had a very significant spinal injury complicated by a spinal cord injury, panfacial fractures and a right tibial fracture. It is now some ten months since his accident and he is continuing to slowly improve, although he is troubled by severe pain, spasticity and facial and dental disfigurement."
Dr Marshall reviewed the plaintiff again on 24th August 1994. She commented that at that time he remained severely disabled with continuing severe spasticity at night. His sleep was interrupted by spasms and pain, although he did not appear as depressed as he was at the previous consultation. The facial surgery appeared to improve his mental attitude. Dr Marshall stated in her report of this review that it was of great concern to her that the plaintiff suffered "lack of joint position sense and sensation which affects his whole body below the level of his spinal cord lesion, but is worse on the left than the right". This had resulted in a recent fall and Dr Marshall said she was of the view that the plaintiff’s lack of sensation put him at risk, in the long term, of joint damage. He also complained that his enjoyment of sexual activity had been severely impaired. Dr Marshall concluded that, as at that stage, the plaintiff had made all the recovery he was likely to make from his spinal cord injury.
In August 1995 Dr Marshall requested a manufacturer to provide the plaintiff with a brace for his right knee. She saw him again on 15th January 1996. He looked well and was wearing knee supports on both knees. He was walking much better and used a walking stick. Bowel management continued to be a problem.
Psychiatric condition
Two psychiatrists, Drs Lucas and Bassett, were called by the plaintiff. Dr Lucas first examined the plaintiff on 18th March 1992. There was no suggestion of any psychiatric history prior to the accident. At this first consultation Dr Lucas concluded that the plaintiff was suffering from depression and anxiety. He reached the diagnosis of "adjustment disorder with depressed and anxious mood". He thought that the plaintiff’s general level of functioning had been altered severely since the accident. He required counselling and, possibly, psychiatric treatment.
Dr Lucas saw the plaintiff again on 10th March 1993 when he reported that the plaintiff "has significant symptoms of depression which appear linked to his pain, various disabilities and his uncertainty about the future". He recommended that the plaintiff be referred to a psychiatrist experienced in managing pain. Dr Lucas reviewed the plaintiff on two more occasions prior to trial. After the second of these occasions he reported as follows:
"Mr Pawlak was injured six and a half years ago and he has received a variety of physical and psychiatric treatments. My impression is that Mr Pawlak’s general condition is unlikely to change substantially in future and I am afraid I do not see much hope of rehabilitation in terms of work and recreational activities. He has multiple physical disabilities, many persistent uncomfortable sensations and his psychiatric state is marked by depression not fully responsive to treatment and anxiety and irritability. Importantly his level of motivation is poor and would be worse if he was not receiving Prozac. There is no doubt in my mind that from the psychiatric point of view there will be long term problems of a similar nature."
In his evidence, Dr Lucas said that the plaintiff’s depression was not particularly prominent when he first saw him, but it became much worse. He noted Dr Bassett’s view that the plaintiff was suffering from a major depressive episode in 1995. Dr Lucas said that the plaintiff does not have major depression at the moment, but depression continues to be a problem. The anti-depressant Prozac which the plaintiff takes at the present time has had a beneficial effect, but it is Dr Lucas’ view that, if the plaintiff has an important set back, he is prone to become depressed again. He said:
"... his mood is likely to vary in relation to circumstances and symptoms and how any further treatment goes. It is more of the same, I think would be the safest thing to say; that it is going to fluctuate."
According to Dr Lucas, the finalisation of the plaintiff’s claim would not affect his condition to any significant degree.
Dr Bassett treated the plaintiff over a period which involved approximately 10 consultations. He has experience in providing advice to the pain clinic at the Royal Adelaide Hospital and the Ashford Private Pain Clinic. He first saw the plaintiff on 11th January 1995. He said the plaintiff exhibited a distressed and anxious mood which did not vary throughout the day. There were no phobias, but the plaintiff tended to avoid people because he felt self-conscious. He had vivid recollections of the difficult times which took place in the treatment of his facial injuries.
Dr Bassett’s assessment is summarised in his report of 9th March 1995:
"In my assessment of his mental state I have not attempted to evaluate his cognitive functions, as these have already been very carefully assessed by several Neuropsychologists. I have also attempted to focus most strongly upon areas which required urgent intervention, and there has not been sufficient time to re-assess his cognitive functions.
I consider the appropriate psychological diagnoses include Major Depressive Disorder and Adjustment Disorder secondary to multiple physical injuries. I do not feel that there is clinically sufficient evidence to justify the diagnosis of Post-Traumatic Stress Disorder, although it is noted that he suffers from some significant post-traumatic symptoms. On the basis of the evidence available to me it would appear that these disorders are directly related to the motor vehicle accident in which he was involved on 23rd May 1991 and which have been followed by extensive treatment.
. . .
My observation to this suggests that he is making some slow progress and that there are glimpses of improvement in his mental state and perhaps in some limited ways in his physical symptoms. I am aware that it is very difficult to relieve Mr Pawlak of many of his problems and that the focus of management must be upon adaptively responding to these limitations rather than to aim for their removal.
. . .
The prognosis for Mr Pawlak will largely be determined by his physical restrictions, but I feel that he is likely to remain vulnerable to periods of depressive illness in the future and that further episodes of illness may require active psychiatric intervention. The effect on his family may also be considerable and I have reason to believe that his family has already suffered considerably from the injuries he has suffered personally."
In a later report dated 30th June 1995 Dr Bassett commented:
"I feel that once the current period of psychological treatment for Mr Pawlak has been completed, further treatment will be very much in terms of crisis intervention and specific problem solving. He will remain at risk of further episodes of depression in the future and it is very difficult indeed to estimate this given the fact that we have not yet had the opportunity to observe the likely rate of relapse. I think it would be a reasonable guess to say that the rate of relapse may be in the vicinity of depressive episodes at intervals of say two to five years, depending upon other events and factors. Of course depending upon the frequency of relapse his medication might be adjusted to try to act preventively."
Dr Bassett said that the plaintiff’s depression is less severe at the moment and it was possible that there could be some improvement when proceedings were resolved. However he did not emphasise this latter aspect and it is clear that the plaintiff will need medication for his depression for the foreseeable future. He said that the adjustment disorder was related to the accident and the subsequent treatment, particularly the latter.
The plaintiff’s present position
The plaintiff and his wife gave evidence. I accept them as honest witnesses who provided me with a reasonably accurate picture of the plaintiff’s present condition and his daily routine. The plaintiff spoke of continuous pain to his head, neck, back, chest, knees and hands. The pain changes with fluctuations in weather conditions. He gets up on a number of occasions of a night time to urinate or open his bowels. He said every time he awakes he experiences spasm and pain throughout his body. The spasms began when he was in the Royal Adelaide Hospital. When walking to the toilet without knee braces he is unsteady on his feet and has fallen on at least one occasion. His wife helps him frequently when he first gets up to go to the toilet of an evening. He said he has difficulty urinating and defecating due to his lack of sensory perception. He has used enemas continuously since his initial stay in hospital as well as medication for his bowel problems. He frequently spends long periods on the toilet.
The plaintiff said he goes shopping, but after a lot of walking he gets cramps in his calves. He drives an automatic car, but cannot go on long trips because of the pain in his feet and the numbness which develops in his back and hands. He found it too difficult to drive the vehicle with manual gears which he owned at the time of the accident. He drives his children to and from school and takes them to various sporting fixtures. He walks with a walking stick except around the house. He uses knee braces. He said he is usually exhausted at the end of the day. He experiences pain in the hip and knee joints and the joints have a tendency to "crack" when he sits down or stands up. The plaintiff said he dresses himself but he needs help with fine activities such as doing up buttons.
The plaintiff’s incoordination results in him bumping into objects from time to time and tripping over. When giving instances of this he said:
"Well, especially when somebody bumps into me and I lose the times in my head. It is all up there that tells me what to do with my feet but if I am hit or suddenly hit I have no quick response with my feet to actually get it back there and prevent myself from falling and so forth. I just don’t feel my legs so it is a big problem. I cannot get the messages back to my brain quick enough to actually prevent that."
When asked about headaches the plaintiff replied:
"They are always there, they are constant pain but they come worse when I am stressed and the temperature changes, those sort of times."
The plaintiff takes medication for the headaches but it does not assist when he has a very severe headache. He likes to use his computer and he is able to access the Internet, but he finds it difficult to concentrate because of headaches. Other problems include a running nose and difficulty in opening his right eye each morning. He said he has no sense of taste.
The plaintiff spoke of becoming depressed on a daily basis. He said he often becomes tearful and he relies heavily on his wife to comfort him. He said that the strength in his limbs had decreased considerably since the accident. He finds that he can engage in housework or do odd jobs around the house and garden for short periods of time only. Then he must rest before resuming. I accept that before the accident the plaintiff was able to assist in renovations and home maintenance at a level significantly higher than the average person. This is illustrated by the work he did in assisting to remodel the matrimonial home. His ability to use tools, particularly power tools, has been much reduced by his disabilities. He does some ironing from time to time, but must exercise caution because of the risk of burning himself without knowing it. He is slow in reading and comprehending instructions.
The plaintiff’s enjoyment of sexual relations has been significantly reduced. Prior to the accident he had sexual intercourse two or three times a week. Now he has intercourse about once a month and, although he can achieve an erection, it is difficult for him to maintain it because of lack of feeling in his penis.
The plaintiff’s difficulties, including the effects of depression, have led to more frequent arguments in the household and the plaintiff and his wife have a very restricted social life compared with that which they enjoyed prior to the accident. As I observe later in these reasons, the plaintiff has suffered a total loss of earning capacity.
Non-economic loss
It will be apparent from the foregoing that the plaintiff suffered a number of serious injuries which have had a profound effect on his life. He has undergone extensive pain and suffering. The many operations, particularly those directed towards his facial injuries, have caused him anxiety and pain. The injuries have altered the entire course of his life and transformed him from an outgoing person and a skilful tradesman into someone who is withdrawn and depressed. His enjoyment of sexual relations has been substantially reduced. There would seem to be little hope of any significant improvement in the plaintiff’s condition, indeed there is a clear possibility that his condition will deteriorate to the point that he will be confined to a wheelchair.
I assess the plaintiff’s non-economic loss at the level of 45 on the statutory scale. It is agreed that the prescribed amount is $1,310. The award under this heading will be assessed, therefore, at $58,950.
Economic loss
The plaintiff was 33 years of age at the date of the accident. He was born in Poland and migrated to Australia in 1978. After initial schooling in Poland he attended trade schools there and qualified as an electrician. Eventually he obtained equivalent qualifications in Australia and then undertook further training in some specialised areas of his trade. He married an Australian of Polish extraction in October 1980 and they have three boys aged 14, 11 and 9 years.
The plaintiff commenced at trade school when he was fifteen and left at eighteen. For part of this time he worked with a company involved in electrical maintenance and then with the manufacturer of electronic medical equipment. He qualified as an electrician and then went on to night school and obtained higher qualifications in the field of electro-mechanics.
Upon his arrival in Australia the plaintiff lived for a time with his uncle for whom he worked on the construction of a home at Hindmarsh Island. He learnt to speak English after a short time and he now has an excellent command of that language. By August 1980 the plaintiff had obtained an A Class Electrical Worker’s Licence and, as a result of further study, he was awarded an associate diploma in refrigeration and air conditioning.
Since his arrival in Australia the plaintiff has worked for a number of companies involved in electrical work and the installation of air-conditioning systems. Much of the work has been involved with large industrial installations. Although he has changed jobs frequently, he has been employed for most of the time. Two of his former employers gave evidence and spoke highly of him. Although he admitted with some frankness that he had been dismissed from employment on one occasion because of an error in the installation of a switchboard, it is clear that he is highly proficient at his work. At the time of the accident he was employed by Nilsen Electric (SA) Pty Ltd in the installation of switchboards on the submarine project. His supervisor on this project testified to his competence.
The evidence supports the conclusion that at the time of the accident the plaintiff was a skilled and efficient tradesman who found it easy to obtain employment. He was also ambitious as is illustrated by his pursuit of higher qualifications. The accident has brought all this to a halt.
Past economic loss
It was agreed that the starting point for past economic loss was $167,300. The calculation of this figure assumes that the plaintiff would have been in continuous employment from the date of the accident to 15th December 1997. In the course of his employment in Australia up to the time of the accident he had a number of employers and he was in his last employment for only two months prior to the accident. Against this history it is not certain that he would have remained in that employment and there may have been a gap or gaps between his employment by other employers. On the other hand he was a worker whose skills were in demand and I do not think it would have been difficult for him to obtain employment when he required it. I think only a minor adjustment should be made to the figure referred to above. I allow $165,000 for past economic loss.
Future economic loss
Counsel for the defendant quite properly conceded that, as the result of the injuries received in the accident, there was no realistic prospect of the plaintiff being employed in any capacity in the future. There was also agreement that the net earnings which I should use for the purpose of actuarial calculations was $466.45 and that the appropriate multiplier, assuming a retirement age of 65, was $727.00. The starting figure for the calculation for future economic loss on this basis is $339,109. I remind myself that the actuarial calculations should be treated simply as guide.
I accept that the plaintiff was an ambitious worker with a history of gaining higher qualifications. He may have earned a higher income at some stage in the future by reason of his qualifications. On the other hand he had demonstrated a propensity for moving from job to job. He may have retired earlier than 65. I think some reduction should be made for adverse contingencies and I allow the sum of $300,000.
Superannuation benefits
A question arose as to whether allowance should be made for loss of superannuation benefits. The plaintiff was a member of a compulsory superannuation scheme and received a disablement insurance benefit from that scheme of $50,000. Mr Watson, the actuary called by the plaintiff, calculated that the present value of superannuation benefits to the plaintiff based on the assumption that he would have been employed to age 65 was $53,400. Mr Watson then subtracted the disablement insurance benefit and arrived at a balance of $3,400 which he said represented the outstanding superannuation loss.
However, although Mr Watson considered the effect of taxation, he did so in relation to the present value of the projected benefit and, as the present value was below the lump sum tax threshold, he made no deduction for taxation.
Mr Mules, the actuary for the defendant, assessed the impact of taxation on the projected value of the superannuation benefit prior to calculating the present value of that benefit. In my view this accords with the reality of the situation. The present day value is a discounted figure to allow for the contingencies consequent upon the plaintiff receiving the award of damages immediately. It is not an appropriate figure on which to take into account the impact of taxation. It was agreed that if Mr Mules’ approach is correct no amount should be awarded for loss of superannuation benefits and this is the conclusion which I have reached.
Past and future care
In discussing this topic it is convenient to begin with the plaintiff’s present needs occasioned by the injuries he suffered in the accident. He said that it is necessary for him to get out of bed on an average of three occasions per night to urinate or use his bowels. He said every time he wakes up he feels spasms and pain throughout his body. He said his wife gets up and helps him to the toilet, although this is not necessary on all occasions. In the case of the specific occasions he was asked about over the period he was giving evidence he said his wife helped him on one out of three occasions. At other times when he awakes during the night she helps him emotionally to get over the pain he is suffering.
According to the plaintiff he regularly requires his wife’s assistance when he attempts to get up from the bed to go to the toilet because he falls back in the bed. The problem with his bowels has been present since about March 1997 but before that it was necessary to get out of bed because of the pain and this has been the case since his discharge from the Hampstead Rehabilitation Centre.
Mrs Pawlak was asked about these incidents:
"Q Can you tell his Honour at the present time, what is his sleeping pattern. Does he get up at night for any reason?
A Yes, he does wake up during the night.
Q Not only wake up but gets up.
A Wakes up and gets up; mainly to go to the toilet and at other times he wakes up because of his pain or he starts - he can’t stand the pain and he starts crying so I am awake, because normally he screams out during the night when he gets the spasms and things like that and I sort of comfort him and if he has to go to the toilet, I help him because sometimes he is in such a state that he can’t sort of walk to the toilet. I help him along half of the way. When he gets to the corridor where the toilet is he goes on his own, holding onto the wall for support. If he is there too long I go and check up on him to see if he is alright - see if he is all right, hasn’t fallen, that sort of thing.
Q Do you ever have to assist him when he is in the toilet, from the toilet back to the bedroom?
A Not during the night so much because he doesn’t sit for very long time. But, mainly when he opens his bowels in the morning and he is there for a long time and he is stiff. When I am in the kitchen and he is in the toilet, he screams out and I run and he says, ‘I can’t move, I can’t walk’ and I have to wait till he gets back to himself and the pain or spasm that grabs him stops and he can stand on his own two feet and he can come back to the kitchen with me.
Q Do you give him any physical assistance during those episodes?
A Well, sometimes he will lean on me but not all the time, just depends how badly he is feeling after he has had that, I guess, you know, just - not very often, just every now and then, I guess.
Q At night time, you have said that you give some assistance from the bed to the bedroom doorway?
A The bedroom doorway and a bit further down the corridor. The toilet is built further down the corridor. There is the corridor and the cupboards before you turn right. It is a short corridor and you turn right at the end. It is three or four steps away.
Q How many times during the night does he wake up to go to the toilet approximately?
A I suppose about three times he wakes up.
Q How many of those three times do you have to give physical assistance?
A Maybe once. I think mainly when he wakes up the first time. He has fallen asleep and then he wakes up and sort of - sometimes I don’t think he knows where he is. Sometimes it seems that way and then I sort of help him get his balance. Once I help him sit up, help him stand up and once he has got his balance then I help him go to the toilet. I think it is only when he wakes up the first time. The other two times not too bad. He seems to make it on his own."
Mrs Pawlak said that the difficulty with the toilet of an evening has been going on for the last four or five years. She said the main purpose for the plaintiff’s visits to the toilet over this period has been to urinate. The plaintiff and his wife agreed when cross-examined that the difficulties encountered at night time had not been made the subject of complaint to medical advisers. However, after listening to both witnesses, I find that the versions which they gave on this issue are truthful and accurate. Dr Marshall said that the difficulty in getting out of bed and the plaintiff’s unsteadiness could be caused by a combination of his spasticity and lack of sensation which offset his balance. She also mentioned the possibility of postural hypotension. The plaintiff has fallen on a couple of occasions in the bathroom because of his instability.
The plaintiff gave evidence that his wife helps him with his clothes. She usually gets up before the plaintiff and takes his clothes out of the wardrobe for him. However he said that he was able to perform this function for himself. He said he dresses himself, but he needs his wife to help him fasten and unfasten buttons, particularly those which he cannot see. A mirror is of no use in this respect. Mrs Pawlak also said that she assists with buttons. Sometimes she provides further assistance with clothing because the plaintiff tends to take a long time to dress. It would appear that the difficulty with the buttons results from the plaintiff’s lack of sensation in his limbs.
The plaintiff is able to cook simple meals such as scrambled eggs. He can assist in the preparation of meals by, for example, peeling potatoes. He makes the boys’ sandwiches two or three times a week. He has some difficulty in using a knife for these tasks because he is at risk of cutting himself and not being aware of the fact until he sees blood. He can use the microwave oven, but must guard against the danger of being burnt without realising it. He does some ironing but, once again, he must exercise care not to burn himself without realising it. He can vacuum for short periods at a time and assists with the washing up.
According to both the plaintiff and his wife he assists with the shopping, but he cannot manage with a large number of items. He can drive the car, but not for long trips. He takes the boys to school and to sporting fixtures. He takes them to Polish lessons of a Friday evening, but his wife picks them up because it is too long and tiring for him to wait and take them home.
Some measure of his independence is demonstrated by the fact that in January 1996 his wife went interstate for about ten days and the plaintiff looked after the children who were on holidays. He did some of the cooking and took them on outings as well as doing some of the housework.
Dr Flett, who was called by the defendant, has extensive experience in rehabilitation medicine. It is his view that the plaintiff can cope independently without additional carer support except in relation to house cleaning and gardening. Dr Marshall who also has extensive experience in rehabilitation, took a different view. It was her view that the plaintiff requires someone to assist him for approximately three hours per day to perform personal and domestic tasks which he is unable to accomplish.
After considering the medical evidence and comparing it with the plaintiff’s capabilities as I find them to be, I am satisfied that the plaintiff is in need of care support by reason of his injuries and condition, although, with the advantage of having extensive evidence on the issue from the plaintiff and his wife, I have reached the conclusion that the demonstrated need falls short of that considered necessary by Dr Marshall.
The plaintiff has made a remarkable recovery from the serious injuries received in the accident. However he still suffers from significant disabilities. I think he needs some assistance from his wife on occasions such as those occurring during the evening when he has difficulty going to the toilet. He is able to handle simple cooking, although he must be careful in using sharp instruments and in circumstances where heat is involved. He is aware of these problems and he is an intelligent person. He is at risk of occasional accidents, but by and large he can manage these tasks if he proceeds cautiously. He is able to take the children on outings although the duration and nature of these occasions is limited because of his difficulties and condition. He can provide limited assistance with cleaning and other household chores. Some assistance is required to enable him to dress. He is no longer able to cope with shopping which involves a large number of items. After considering the evidence I am satisfied that, at the present time, he needs personal care and assistance in performing everyday tasks for approximately one hour per day.
The plaintiff has required this amount of care since his discharge from the Hampstead Rehabilitation Centre on 8th November 1991. However there have been times when the need for care has been greater. Although he could shower and attend to his own personal hygiene when discharged on this first occasion, he needed some assistance with a shower chair and some limited supervision after showering. This continued for almost two weeks. On some occasions when he used a wheelchair his wife helped him transfer from it to the shower. I also accept that on occasions after release from hospital after various operations he required a little more assistance because of his inability to perform tasks by reason of his condition. His wife provided important assistance to him when he was at the hospital and rehabilitation centre. I think this went beyond simple comforting and assisted in the alleviation of the plaintiff’s condition.
I have allowed for past personal care on the basis of approximately one hour per day since discharge from the Hampstead Centre and a slightly increased level for approximately one week after some of the discharges from hospital. I have also allowed a modest amount for support at the hospital and rehabilitation centre.
I think the allowance for past voluntary services must also include a component for handyman and gardening services. The plaintiff was a very good handyman before the accident but his ability to do odd jobs around the house and gardening has been considerably reduced. I think it is appropriate to allow one and a half hours per week for this component. I have decided that the rate of $15.00 per hour should be used as a guide to the cost of past voluntary services. In the result I allow $37,000 for past voluntary services of the type which I have discussed.
Future care
In order to assess the plaintiff’s future needs it is necessary to have regard to some important evidence concerned with a possible reduction in his mobility by reason of a deterioration in his condition.
Mr Hall stated in his report of 4th June 1993 that the plaintiff underwent arthroscopic examination of both knees on 13th April, 1993. The right knee showed "a very degenerate lateral compartment" and a chrondoplasty was performed. A tear of the medial meniscus in the left knee was detected and this was resected. Mr Hall went on to say in his report:
"Marek has had a good response to surgery and is pleased with the symptomatic relief. However, he has quite severe damage in particular to the joint surface of the right knee which will not recover and will leave him with a permanent impairment. The injury to the left knee is comparatively minor."
In a further report dated 26th April 1995 Mr Hall dealt with the potential which the plaintiff has for developing a condition known as "Charcot’s Joints". He explained that this was the term given to the condition of neuropathic arthropathy. It occurs when the autonomic nerve supply to a joint is disturbed, as it has been in this case, by reason of the spinal cord injury. The autonomic nerve provides signals to the brain and spinal cord to protect the joint from injury. The plaintiff is not fully perceptive to the pain in the joint and his sense of joint position is lacking. These factors render him prone to overstretching the joints and injuring them without being aware of the fact. When this process occurs on an everyday basis it leads to destructive arthritis of the joints. Mr Hall said that when a joint becomes neuropathic x-rays demonstrate a destructive arthritis which is evident in the appearance of the joint. Sometimes it is at an unusual angle. He continued:
"The other feature you have marked bony enlargement, so to look at the joint physically it’s a big joint, it’s swollen and big and looking on the x-ray there is marked overgrowth of bone or hypertrophy, there is fragmentation of the bone typically, so there are bony or ossific loose bodies around the joint, so it’s a very classical appearance. You just hold it up to the light and say that’s a neuropathic joint."
The damage to the plaintiff’s spinal cord predisposes him to the development of this condition in all joints. However Mr Hall thought it extremely unlikely that all joints would become involved. The right knee would be the most likely affected because of its present state in which the fracture had already resulted in some arthritis.
Mr Hall was adamant that the plaintiff’s right knee is not neuropathic at the present time. The chances of its development, however, became one of the major areas of controversy between the parties. In a report to Workcover dated 26th May 1995 Mr Hall stated:
"There is almost a one hundred percent chance that Mr Pawlak will develop ‘Charcot’ arthropathy of the knee joints and perhaps other joints in the lower limbs. The disorder will probably take five to ten years to develop."
In his evidence-in-chief Mr Hall said that he might have been "overzealous" in predicting a one hundred percent chance, but he said that it was highly likely that the plaintiff would develop a neuropathic joint. In answer to a question from the plaintiff’s counsel he said he adhered to the view that this would happen in five or ten years from the date of the report.
Mr Hall was cross-examined on this estimate.
"Q If I just go back to the issue of Charcot’s joints, your best guess, at the time you did your report to Workcover, in May 1995, was a development period of five or ten years?
A Yes.
Q That is not an unkind description; ‘best guess’?
A Yes, it’s a guess.
. . . .
Q What has been your own experience in respect of the time frame within which Charcot’s joints might develop following spinal injury. Do you have any personal experience?
A No, I can’t profess any experience in that regard.
Q It may well be that, in this case, we are looking at a time frame of 15 years or 20 years?
A Yes, I would concede that.
Q Just as likely as five or ten?
A Yes, it could be.
Q I know you regard it now as ‘highly likely’, but it is no certainty?
A No."
Mr Hall was against the use of a wheelchair as a preventative measure to prolong the use of the knee joints. He said:
"A I would always encourage him to keep as active as possible. I think that to recommend that he rest the joint through using a wheelchair would be ill-advised, personally. I know there may be some of that opinion, but I disagree with that opinion.
Q Quite strongly, as I understood the flavour of your answer?
A Yes, I would."
However he did say that eventually the plaintiff could be confined to a wheelchair by reason of his gait and the effects of the spinal cord injury. He said that the development of neuropathic joints would be the main factor leading to wheelchair use. He would expect that if neuropathic joints developed it was highly likely that the plaintiff would require a wheelchair approximately two years after the onset of the condition. If both joints became neuropathic the plaintiff would not be independently mobile outside the house, although he would be able to transfer from the wheelchair to a vehicle without assistance.
Dr Marshall raised the possibility of the development of neuropathic joints and consequential confinement to a wheelchair in her report of 24th August 1994. However she recommended that the plaintiff’s solicitors seek orthopaedic advice on this issue. In a subsequent report she referred to Mr Hall’s view that neuropathic joints would develop within five to ten years time. In a report dated 16th October 1996 Dr Marshall said:
"I agree with Dr Flett that wheelchair dependence is a worst case scenario for Mr Pawlak. However, given the deterioration in his knees I believe that this ‘worst case’ may occur within the next five years although it may not occur for a significantly longer time. Unfortunately it is impossible to predict with any conviction the time frame involved."
There appears to be some difference in understanding between Dr Marshall and Mr Hall as to the use of the terms Charcot’s joints and neuropathic joints. At one stage in her evidence Dr Marshall said that she thought the plaintiff did not have Charcot’s joints at the present time, but later in her evidence she said she thought he had developed a neuropathic joint in his right knee. However she said she would defer to orthopaedic opinion in relation to the issue generally. In examination-in-chief she said she agreed with the view expressed by Mr Hall in his report that a Charcot joint could develop within five to ten years of the writing of the report and she said she thought it would be closer to five than ten years. Then in cross-examination she said she was in no position to disagree with Mr Hall’s final position that the time frame is just as likely to be fifteen or twenty years as five or ten.
It is clear that Dr Marshall’s view is heavily reliant on that of Mr Hall. There is no other expert evidence on the issue. The difficulties of predicting the time of onset of this condition and any consequential confinement of the plaintiff to a wheelchair are evident from the evidence of Mr Hall and the concessions which he made in the course of cross-examination. Without any other evidence to assist me, I can do no more than conclude that there is a distinct possibility that neuropathic joints will develop within five to twenty years of the date of Mr Hall’s report; that the right knee is the most likely joint to be affected, but that it is possible that both knee joints will succumb eventually. Confinement to a wheelchair is likely within two years of the onset of neuropathic joints and, obviously, mobility out of the wheelchair will be more restricted if both knee joints are affected. I accept Mr Hall’s view that it is inadvisable to employ a wheelchair in an attempt to prolong the use of the joints prior to them becoming neuropathic.
There was some evidence of a possibility of amputation, particularly if the plaintiff underwent a joint replacement which was unsatisfactory. However, for reasons which are discussed later, I think a joint replacement is unlikely in this case. Furthermore an amputation is highly unlikely.
Some of the medical experts were asked about the development of a syrinx or a syringomyelia in the spinal cord. This could cause further damage to the central nervous system. However, on the whole of the evidence, it would appear that the chance of this condition developing is very slight and, if it did occur, there is a good chance that it could be treated successfully. I have made some modest allowance for this contingency.
There was some discussion at the trial as to whether I should make an interim award of damages. Although it is a case in which there are a number of uncertainties, I do not think an interim assessment is appropriate. It may be many years before some of these uncertainties are resolved.
In my view the plaintiff will continue to need assistance for personal care and in relation to handyman and gardening services for the rest of his life. If he becomes confined to a wheelchair the level of assistance required will increase. If that occurs I think he will need extra assistance. Dr Marshall suggested an extra half an hour per day for personal assistance, but this was on the basis that he was already receiving three hours per day for personal and domestic assistance. In the circumstances I think it would be appropriate to allow for an extra one hour per day personal assistance in the event of wheelchair confinement. For the reasons given above I think there is a clear possibility of this occurring in approximately ten or twelve years time. A rate of $17.00 per hour is appropriate for future personal care and the same rate is also appropriate for handyman and gardening services.
Using the calculations which can be made by calling in aid the actuarial evidence as a guide and making allowance for some minor negative contingencies, I allow $150,000 for future personal care. On the basis that the plaintiff will continue to require handyman and gardening assistance I allow a further $20,000.
It was argued on behalf of the plaintiff that he would benefit from having a paid companion to accompany him on outings. This, so it was said, would assist him in overcoming his depression and restore some of the social life which he had lost as a result of his injuries.
Dr Bassett said outings and activities of this nature would assist the plaintiff, but the idea of a paid companion was not something which had occurred to him as being appropriate when he wrote his reports. He did not discuss this matter with the plaintiff. Dr Lucas said he had not discussed the prospect of a paid companion with the plaintiff, but he said that as a matter of general principle he saw some value in the suggestion. Dr Marshall said that the plaintiff is fairly isolated at home and it would be of benefit to him to socialise more, but she added "Whether, in fact, anybody would be able to get him to do so is another matter". She said she would defer to a psychiatrist on this issue.
In my view a case has not been made out for the inclusion of an allowance for a paid companion. The plaintiff does go on outings with his family and I have insufficient evidence before me to establish that the concept of a paid companion is a practical suggestion in this particular case.
Mileage reimbursement
The sum of $775.00 is claimed by the plaintiff in respect of those occasions when he travelled alone to visit medical specialists and to attend on other occasions associated with the treatment of his injuries. These expenses should be allowed.
The same amount is claimed in respect of other occasions when the plaintiff’s wife attended hospital to visit him or drive him to appointments. As for visits to see him, these amounts are claimed by way of Wilson v McLeay ((1961) 106 CLR 523) damages. In order to justify such a claim it is necessary to establish that the visits played a role in alleviating the plaintiff’s condition. There is evidence in the present case that the visits by Mrs Pawlak assisted the plaintiff, particularly in relation to his psychiatric and psychological condition. I allow $500.00 under this heading.
Accordingly the total reimbursement for mileage will be $1,275.
Future medical expenses
I have stated elsewhere in my reasons that there is a real possibility that the plaintiff will be confined to a wheelchair in ten to twelve years time. The present cost of a wheelchair is $1,800. In my view an allowance should be made based on an initial purchase within ten or twelve years and replacement at three yearly intervals thereafter. Using Mr Mules’ actuarial calculations (D6) as a guide I allow $5,000 to meet this expense.
Further items of future medical expenditure are set out in the appendix to Mr Watson’s actuarial report (P44). Before dealing with the amounts claimed for future medication and medical treatment it is appropriate to deal with Mr Trim’s submission that, in the circumstances of the present case, I should take into account the possibility that the plaintiff will be entitled to reimbursement from Medicare for future medical procedures.
The argument was precipitated by the provisions of the Health and Other Services (Compensation) Act 1995 (Commonwealth) and related legislation which allows a patient who has received an award for damages to retain any amounts received by way of Medicare benefits. In an article on the new legislation (Cassidy, "Health and Other Services (Compensation) Act 1995" 70 ALJ 473), the learned author points out:
"It is a corollary of the Commonwealth accepting liability for future out-of-pockets that, in calculating this element of the plaintiff’s damages, credit should be given for the benefits that will be received. Compare National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569."
It was conceded by Mr Trim that a credit of this nature would not apply if Workcover remained liable for medical expenses, but he argued that there was evidence before me which established the likelihood that the plaintiff would enter into an agreement with Workcover for a redemption of Workcover’s liability, including that relating to medical expenses. According to the argument the likelihood of such redemption and the plaintiff’s consequent entitlement to reimbursement by Medicare were relevant to the assessment of future medical expenses to be incurred by the plaintiff.
This submission might well be sound as a matter of law, but in the view that I take of the evidence there is an in insufficient factual basis to enable me to give effect to it. The defendant called Mr Rogers, a Workcover recovery officer. He was referred to a file note which he made on 15th September 1997 which recorded the effect of a telephone conversation he had with a woman who was employed by the claims agent handling the plaintiff’s matter on behalf of Workcover. The note stated in part:
"Matter to be redeemed cost neutral."
He said that he had conveyed this information to the claims agent and that it referred to a conversation with someone from the office of the plaintiff’s solicitor. He said that he had been told by that person that the plaintiff’s present intention was to enter into a redemption agreement. The witness explained that if an agreement were entered into it would encompass future medical expenses. Mr Rogers was asked if Workcover had indicated any attitude to redemption and he replied:
"That upon judgment, if he wished to redeem on a costs neutral basis, we’ll accommodate him, yes, providing the Act doesn’t change in between times."
The conversation recorded in the note took place at a time when negotiations for settlement of the common law claim were in progress. No evidence was led as to the precise details of the conversation between Mr Rogers and the representative from the solicitor’s office. The plaintiff gave the following evidence on the matter:
"Q What is your intention at this stage regarding applying to Workcover for a lump sum in respect of your weekly wage maintenance component?
A Well, it is all up to the court to decide but I -
Q You say the court makes the decision?
A Yes.
Q Have you got any fixed views one way or the other whether you want a lump sum or whether you want to continue weekly payments?
A It all depend how much it is going to be. That is it."
Whatever might have been the plaintiff’s intention at the time of negotiations, much might depend upon the outcome of the present proceedings as to whether redemption will take place. I can do no more than speculate on the information before me; I cannot say that there is a likelihood of redemption. I can do no more than recognise that it is an option open to the plaintiff. I do not think it is appropriate to make the adjustment sought by Mr Trim.
There is no significant controversy concerning the amounts claimed for future medication or the amounts for equipment other than the wheelchair. I allow the amounts claimed for medical investigations as set out in the appendix to P44. I also allow for the cost of MRI scans on the basis of this procedure taking place every two years. The present cost of the procedure is $454.00.
Under the heading of medical visits, I do not accept that the need to visit a general medical practitioner will be as often as that claimed by the plaintiff. I have allowed for a regular visit every two months and a prolonged visit every six months. I allow $1,000 for visits to a spinal cord specialist and $350.00 for visits to a urologist. I also allow $1,000 for future psychiatric treatment. The total amount allowed for future medical visits is $8,500.
In summary, therefore, I allow the following amounts for future medical needs:
Medications $14,000.00
Medical Investigations(includes $3,500 for MRI scans) $ 6,700.00
Medical visits $ 8,500.00
Equipment(as set out in the appendix to P44 but allowing $5,000 for wheelchairs) $ 5,400.00
TOTAL $ 34,600.00
Past medical expenses
Past medical expenses are agreed at $132,000.
Future dental expenses
Dr Abbott gave evidence of the future dental work which he anticipated would be required by reason of the plaintiff’s injuries. He also gave estimates of the cost of that work. These estimates were based on the assumption that replacement work would be required every ten years or so. He made the point that it may not be necessary to replace all of the work every ten years. The broad estimate which Dr Abbott gave of the future dental treatment in his reports and evidence-in-chief was dissected in the course of cross-examination.
I am in general agreement with the approach to compensation for future dental treatment which is set out in the defendant’s written submissions. This approach allows for three replacements. I agree that there should not be any allowance made for replacing the bridge which the plaintiff had prior to the accident. A replacement for this would have been necessary at some stage without the accident occurring. If the defendant’s model is accepted I think only a small allowance should be made for contingencies.
I allow $14,000 for future dental expenses.
Motor vehicle
The evidence supports the proposition that the plaintiff needs a vehicle which has an automatic gear change and power steering. I also accept the argument that, whereas before the accident he was able to get by with an older car on which he could do his own repairs, he is no longer able to do so. Furthermore he needs a reliable vehicle because of the particular difficulties which a mechanical breakdown would occasion to someone with the plaintiff’s disabilities.
According to the evidence the plaintiff purchased a late model car for approximately $30,000 some time after the accident. I agree with Mr Trim’s argument that some regard must be had to the fact that the plaintiff would have had to outlay funds for a vehicle from time to time if the accident had not occurred. On the other hand the plaintiff will have a continuing need for a vehicle in good condition with the features which I have described.
I allow $20,000 for this item.
Travel expenses
Evidence was given by the plaintiff of a desire to visit his parents from time to time. They live in Poland and evidence was called concerning the difference between economy and first class air fares. The basis of this aspect of the claim was that, as a result of his injuries, it would be particularly difficult for the plaintiff to travel in economy class accommodation. No medical evidence was called to support the claim, but bearing in mind the nature of the plaintiff’s injuries, I can accept that this need has been created by the accident.
However the plaintiff’s case was based on first class air fares and I accept that business class accommodation would meet the plaintiff’s needs. Furthermore the fares of only one airline were investigated and the witness agreed that other airlines offered more attractive fares from time to time. I think the need would be met by a modest award and I allow $2,000.
House modifications
In my view it is likely that the plaintiff will one day be confined to a wheelchair. The plaintiff and his wife have purchased a block of land and intend constructing a house on the site. It is proper in these circumstances that some allowance should be made for the extra cost involved in making the house suitable for wheelchair use.
The plaintiff’s case as presented through the architect, Mr Drew, was based on modifications to an existing house, but it became obvious in the course of the evidence that the plaintiff and his wife intend to build a new home. The cost of incorporating the structural features in a new home was approximately half the cost of modifying an existing house. Accordingly the assessment of this item should be made on the basis that the plaintiff and his wife will incorporate the facilities in a new dwelling.
Dr Drew was cross-examined on the modifications and in my view a more realistic and appropriate indication of what was required emerged in the course of the cross-examination. A summary of the costings canvassed in cross-examination was incorporated in the defendant’s written submissions and, for the most part, I have based my assessment on that summary.
Some further allowance should be made for alterations which were considered appropriate, but where no estimate of cost was made. They comprise facilities in the kitchen and dedicated spaces.
I allow $15,000. I have made no reduction on account of the immediate receipt of the moneys because it would appear that the house will be constructed in the very near future.
House painting
It was agreed between the parties that the costs of labour in painting the plaintiff’s house, a task which he undertook prior to the accident, should be taken into account in compensating him. It was also agreed that the award should be based on two renovations in ten and twenty years’ time respectively and that, on this basis, the appropriate figure before discounting was $4,932. After allowing for the contingencies discussed in the course of submissions I award $4,000 for this item.
There will be judgment for the plaintiff assessed as follows:
Non-economic loss $ 58,950.00
Past economic loss $165,000.00
Future economic loss $300,000.00
Past voluntary services $ 37,000.00
Future care $150,000.00
Gardening and maintenance services $ 20,000.00
Mileage reimbursement $ 1,275.00
Past medical expenses $132,000.00
Future medical expenses $ 34,600.00
Future dental expenses $ 14,000.00
Motor vehicle allowance $ 20,000.00
Travelling expenses overseas $ 2,000.00
House modifications and painting $ 19,000.00
$953,825.00
This amount reduces to $906,110.00 after apportionment.
I will hear counsel as to interest, costs and any other ancillary orders.
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