Peninsula & Torres Strait Health Authority v Bovey
[1995] QSC 52
•8 March 1995
THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 129 of 1994
Brisbane
Before Macrossan CJ
Pincus JA
Lee J
[Peninsula & Torres Strait Health Authority v. Bovey]
BETWEEN:
PENINSULA & TORRES STRAIT REGIONAL HEALTH AUTHORITY
Appellant
AND:
CHRISTINE ROSALIE BOVEY
Respondent
Judgment delivered 08/03/1995
EACH MEMBER OF THE COURT DELIVERING SEPARATE CONCURRING REASONS.
APPEAL ALLOWED WITH COSTS. JUDGMENT BELOW SET ASIDE AND IN LIEU THEREOF, ENTER JUDGMENT FOR THE RESPONDENT/PLAINTIFF IN THE SUM OF $53,447.35. EACH PARTY TO LODGE WRITTEN SUBMISSIONS ON THE QUESTION OF COSTS BELOW WITHIN 14 DAYS.
CATCHWORDS: NEGLIGENCE - damages for personal injuries - future pain and suffering - whether award to be reduced because of availability of mitigating treatment - whether other components justified on evidence - whether substitution of appropriate award would make substantial alteration to judgment.
Counsel:R A I Myers for the appellant
J A Griffin QC for the respondent
Solicitors: MacDonnells for the appellant
Hollingworth & Spencer for the respondent
Hearing date: 07/11/94
REASONS FOR JUDGMENT - THE CHIEF JUSTICE
Judgment delivered 08/03/1995
I agree with the reasons stated and orders proposed by Lee J. I agree also with
the additional observations made by Pincus JA.
REASONS FOR JUDGMENT - PINCUS J.A.
I have read and am in substantial agreement with the reasons of Lee J.
In my opinion the award made by the primary judge was clearly disproportionate to the extent of the injury suffered and its consequences. That which will replace it is by no means ungenerous, given the circumstances as revealed by the evidence. I agree to the orders mentioned in the reasons of Lee J.
REASONS FOR JUDGMENT - W C LEE J
The appellant, the defendant in the action, appeals against the quantum of damages assessed in the District Court at Cairns on 3 June 1994 in the sum of $89,147.35 made up of the following components:
"Pain suffering and loss of amenities $30,000
Interest @ 2% for 5½ years on $15,000 $1,650
Past economic loss Nil
Griffiths v. Kerkemeyer
Past$2,000
Future$3,000
Belmont Hospital Pain Clinic $7,700
Counselling $1,000
Either Hysterectomy or alternatively
Depo-Provera quarterly injections $5,000
Future pharmaceuticals $1,500
Loss of future earning capacity $35,000
Special damages $2,132.35
Interest $165.00
Total$89,147.35"
It was submitted that the assessment was wholly erroneous because several of the individual components were so far out of line with what was appropriate, thus indicating that the trial Judge erred in principle. It was contended that substitution of an appropriate amount for various components would make a substantial alteration to the total award so that this Court should interfere: Keefe v. R T & D M Spring Pty Ltd [1985] 2 Qd.R. 363; Elford v. FAI General Insurance Company Limited [1994] 1 Qd.R. 258.
The grounds of appeal related to four main components of the award: $30,000 for pain suffering and loss of amenities; $2,000 and $3,000 for past and future care; $7,700 for a pain management course at the Belmont Pain Clinic in Brisbane and $1,000 for future counselling in Cairns; and $35,000 for loss of future earning capacity.
Liability was not in issue. The respondent was born on 9 August 1959. At the date of trial she was almost 35 years of age. The action for damages arose out of a negligently performed laparoscopy carried out at the Cairns Base Hospital on 7 November 1988 when she was 28 years of age. Some corrosive or toxic fluid was allowed to penetrate into her peritoneal cavity. It caused chemical peritonitis resulting in a plaque in the area which was described as something in the nature of a scarring to the peritoneal cavity.
The effect on the respondent was that when she menstruated, when she ovulated, or when she had sexual intercourse, the nerve endings in the area of the plaque-like substance gave rise to pain. It was not suggested that this scarring had any other possible consequences to her health.
Counsel for the respondent handed to the trial Judge during addresses, a list "Heads of Damage" on which his Honour substantially relied. His Honour said that no alternative amounts were suggested by the appellant, the only submission being that the respondent should be awarded only nominal damages. The list was not included in the appeal record, nor was it placed on the Court file. A copy was made available and is annexed to these reasons.
The respondent married her husband on 24 April 1988. She had two previous relationships which broke down. A child from one of those relationships was born in 1985 and lived with them. This child as well as an older child had been delivered by caesarean section. The respondent had undergone two previous pregnancy terminations. She also suffered a miscarriage in August 1988.
She saw Dr M Carrette, an obstetrician in Cairns. He performed the laparoscopy on 7 November 1988 because of a possible ectopic pregnancy which proved negative. The instrument, instead of being autoclaved, had been incorrectly sterilised in a solution which entered the plaintiff's peritoneal cavity causing the scarring and its consequences.
Following the procedure, she suffered pain "the like of which she had never suffered before" as the trial Judge found. She was prescribed pethidine on three occasions that day. She slept most of the time. At 8:00pm she walked unaided to the toilet. She stayed in hospital overnight and rested well. The next day she was prescribed Panadeine and was discharged home. When asked how long the severe pain persisted after arrival home, she said she was totally incapacitated for four to five days. Accordingly the period of severe pain appears to have been about five to six days in all. Dr Carrette saw her a week after the procedure and considered that she was almost better. She had difficulty standing up straight during this period but gradually improved to the point where she could stand up straight at about two weeks when she returned to work at her husband's legal office where she was employed as a secretary and accountant.
She said that during the two weeks spent at home, her husband, who was still carrying on his practice as a solicitor, helped her whilst she was incapacitated. She said he came home "whenever necessary". She said he helped her to the toilet, assisted with having showers, and assisted with the young child who was apparently then aged about 3 years. He also prepared the meals. She said he helped her about six hours per day over this four to five day period. Her husband did not give evidence. However, the trial Judge accepted the respondent's evidence generally.
Thereafter, she experienced pain during menstruation and ovulation. She said she had never experienced any such pain previously apart from some discomfort during puberty. She said the pain she suffered was severe at times, but varied from slight to severe over about four to five days during menstruation, and two to three days during ovulation, totalling some six to eight days per month. In addition she suffered a different type of pain during sexual intercourse which she had never experienced previously. Pain from this source usually lasted for a day or so after sexual intercourse.
She said that sexual intercourse had previously occurred frequently but that because of pain, it was reduced to about once every six weeks, although over a 22 day test period conducted during May 1994 at the instigation of a psychologist, Ms Shane Daniels, she said that she had sexual intercourse on three occasions which she described as special, i.e. their wedding anniversary, her husband's birthday, and her husband's desire for sexual intercourse on another occasion. She said their reduced sexual relationship caused a strain on their marriage and resulted in a lack of closeness and a lack of communication. She said that the children and the business were effectively holding them together. She had doubts as to whether the relationship would last. She has been taking Panadeine and about 50 Paradex tablets per month for the pain.
During 1989, she and her husband were endeavouring to have another child. In December 1989, she undertook a further laparoscopy to find out whether her fallopian tubes were potent and to see why there was a problem with sub-fertility. Certain treatment which had been foreshadowed became unnecessary as she became pregnant in June 1990 with her youngest child, Matthew, who was born in March 1991. During the period leading up to the stage when she became pregnant, she continued to endure pain as above described. The appellant does not make complaint about her entitlement to compensation for pain in that period.
The pregnancy was a difficult one and was unrelated to the subject laparoscopy. As a result of the difficult pregnancy and marital problems, she underwent a tubal ligation in November/December 1991 but she said pain has persisted ever since. After the birth, she said that the pain she experienced during menstruation and ovulation continued. She said that it increased and that her menstrual cycle increased to nine to 10 days during which pain of varying degrees occurred, plus pain over two extra days during ovulation. It usually increased for about three to five days but was at a reduced level before and after that time span. Pain during intercourse continued also. Dr Carrette said that the respondent was left with a legacy of continuing pain and discomfort in her pelvis which, although nothing compared with the original episode, has lingered for six years and was probably stable. He said it was likely to get no better or no worse.
The respondent said that over the first couple of years after the procedure her husband helped her about two hours a day on about two to four days per week when she was in most pain and on medication. At times she could not drive so he took the children to the gymnasium and other activities, and did the shopping. She said he also took care of the children and did some cooking during these limited periods only. She said that this assistance has continued right up to trial, i.e. two hours per day for approximately three days or so per month.
She said that the drugs she was taking began to become ineffective from about November 1993. She said that she suffered some depression because of her condition and obtained some counselling from Ms Daniels, the psychologist. However, this occurred only on three occasions during some four or five weeks before the trial. She was helping the respondent with pain management. The respondent said she was determined to do a pain management course at the Belmont Hospital. She has had about 17 visits to Dr Carrette over the period since the procedure and up to trial. He has continued to prescribe medication for her. The evidence shows that if ovulation and menstruation are prevented, the pain from those sources would be substantially, if not totally, eliminated. The respondent made it clear that she did not want to have a hysterectomy although she said that this might become necessary in the distant future. Dr Carrette did not consider a hysterectomy was appropriate for her and agreed that there were many other ways of approaching her problem without that radical measure. He concluded that it was undesirable in her case. If she did undergo a hysterectomy, this would necessitate hormone replacement therapy. Dr Carrette said that even so he could not guarantee that all of the pain would be gone but this does not mean that she would not have gained substantial relief following such a procedure.
The respondent never underwent a pain management course at any time before the trial although, as indicated, she had three sessions of counselling with the psychologist within four or five weeks before the trial. Ms Daniels was aware of pain management techniques and had been trained in that regard. She said that she was prepared to investigate ways to help the respondent with management of her pain in Cairns.
Since the laparoscopy, the respondent has undertaken a practice management course with the Law Society. She became a qualified Justice of the Peace in 1989. She commenced a correspondence course towards a Bachelor of Applied Science majoring in Mathematics and Computing at the University of Central Queensland. This was designed to eventually lead to a Master of Business Administration. She said that these qualifications assisted her in her husband's office, and would also be a backstop for her if ever her marriage broke down and she had to obtain another position. She started that course in 1992 and achieved Distinctions and Credits. She said she had to withdraw from that course fairly recently before the trial because she could not concentrate and could not work the examination and assignment times around her menstruation periods, although apparently she had achieved high results by correspondence up till that time.
She goes running regularly for periods of up to 60 minutes some four or five times per week. She is responsible for a full‑time job. She is involved with raising two young children. She goes shopping, and does the housework and cooking. She said that if she could overcome the pain she would continue studies.
She said that if her relationship did not continue she would find it very difficult to get a job with another solicitor or accountant because she would not enjoy the same flexibility of hours she said she now enjoys whilst working for her husband. She said that when she is on drugs and suffering pain, she is able to leave the office, take work home, and do it at nights or weekends. She has a computer at home. She said she is able to go home when she is "not being properly functional because of the drugs or pain". This appears to have occurred on a fairly regular basis. She said that when she is on drugs, she must check her work and watch for mistakes, and that her manner is more abrupt and not like it was previously. She said that during these periods she had to rest extensively. Dr Carrette on the other hand, who the trial Judge also accepted, said that she told him that she took virtually no time off work. There is no claim for past economic loss.
Counsel for the appellant submitted that there was adequate treatment of a relatively simple kind which the plaintiff ought to have undergone which would have substantially reduced, if not totally eliminated, two areas of pain, namely that which she experienced during menstruation and ovulation. Dr Carrette agreed that a daily contraceptive pill was commonly used to alleviate those difficulties and that there was no reason why the respondent could not have undertaken such a treatment. He did not suggest any possible adverse side effects from such a course of treatment other than to express the view that taking such tablets each day was "a lot of tablets". The other reason he gave for not prescribing such a course, at least up to 1990, was that the respondent very much wanted to become pregnant up to that time.
Alternatively, he agreed that there was hormone treatment called Depo-Provera which could have been administered to prevent ovulation and menstruation. He said that some patients on that treatment bleed erratically, although he agreed that the majority of patients did not do that. He said that he had no reservations whatsoever about using any of these treatments and certainly before hysterectomy was ever considered. He had not suggested that the respondent should undertake them previously. He had attempted in the past to treat her whole problem rather than trying to eliminate various areas where pain occurred. In effect, he said that it would have made no difference to the problems she was experiencing with her sexual relationship if the pain and discomfort was removed only insofar as it was caused by ovulation and menstruation.
The respondent acted on Dr Carrette's advice. The trial Judge accepted that the treatment regime the respondent had undergone had been appropriate. Counsel for the appellant eventually conceded that the appellant could not complain about an allowance in the award for pain and suffering up to trial but submitted that it has now been clearly demonstrated that there are forms of relatively simple treatment which the respondent should undergo in the future in order to mitigate her loss so that the appellant could not reasonably be expected to pay for continued pain from those two sources.
Nevertheless, counsel for the appellant submitted that the degree of pain the respondent suffered in the period up to trial could not have been significant having regard to her very active lifestyle, her responsibilities with her position and at home with the children, and her successful results from tertiary studies. It was further submitted that had she experienced regular significant pain or depression as she alleged at the trial, she would have undergone treatment for pain management and counselling far earlier than she did during the few weeks immediately preceding the trial. Implicit in these submissions was the suggestion that seeking counselling so close to the trial and giving up her university studies also fairly close to the trial after a relatively successful record, indicated that her complaints of pain may have been overstated.
Insofar as she experienced pain during sexual intercourse, it was submitted that she need not suffer any pain for which she would have to be compensated if she abstained from sexual intercourse. In the end, however, it was conceded that this was not a proper stance for the appellant to adopt as the respondent did not cease to function sexually. Whilst she said that she had sexual intercourse once every six weeks she nevertheless, over a trial period of 22 days conducted at the instigation of the psychologist, had undertaken sexual intercourse with her husband on three separate occasions indicating that this occurred weekly over that period. This, it was said, provided a true indication of the degree of pain she experienced as a result of sexual intercourse.
Senior counsel for the respondent submitted that the award of $30,000 damages for pain, suffering and loss of amenities was not manifestly excessive but was supported by the evidence. He submitted that the respondent's evidence, which was accepted by the trial Judge, was that her pain was getting worse during ovulation and menstruation and that the total period during which she experienced pain and discomfort was extending. It was disputed that the proposed future treatment would effectively eliminate the respondent's pain and suffering, and that there were possible side effects. He submitted that the restriction on her capacity for sexual intercourse and its effect on her marriage also justified the award.
The suggested side effects referred to by Dr Carrette related principally to Depo-Provera injections but even then the doctor said that the majority of patients do not experience erratic bleeding. No side effects appear to have been suggested from taking a daily contraceptive pill although as indicated, Dr Carrette expressed some reservations about whether or not the respondent's pain from ovulation and menstruation would be totally removed if she had a hysterectomy, even coupled with hormone replacement.
The award of $30,000 under this head was the minimum quantum submitted on behalf of the respondent at the trial. The respondent is entitled to be compensated for all the pain and discomfort she experienced up to trial (excluding the period during which she was pregnant with Matthew). There is little doubt that the respondent experienced a severe episode of pain for about a week or so after the laparoscopy. Thereafter, the objective evidence shows that while she suffered pain and discomfort from time to time, it was nothing compared with the original episode, as Dr Carrette said.
As to the future, there is substance in the submission on behalf of the appellant that relatively simple treatment is available to the respondent in the form of a daily contraceptive pill or Depo-Provera injections, apart from any question of hysterectomy which Dr Carrette did not recommend and which the respondent did not desire to undertake. This leaves the question of the pain and discomfort she experiences during and following sexual intercourse which, according to the appellant, was not of a significant nature.
The trial Judge made so specific reference to the degree of pain and suffering that the respondent might endure in the future. However, his Honour appears to have taken the view that notwithstanding various allowances for future treatment, the problems she had encountered to trial had effected strains on the marriage and had put her at risk of losing her well-paid employment in the future. This suggests that his Honour was of the view that there was a significant risk that the pain and discomfort she experienced to trial would continue in the future. This is to some extent supported by his Honour's dissection of the award of $30,000 for pain, suffering and loss of amenities by allowing interest on one half of that sum for the period up to trial, indicating that there was a substantial component for the future.
Whilst it is true that she must be compensated for future pain and suffering with regard to that which she experiences during and following sexual intercourse, and also for the pain and discomfort of any operative treatment she may undergo, it appears that insufficient consideration was given to the fact that there are relatively simple treatments available to the respondent in the future, apart from any question of hysterectomy, which will substantially alleviate two major areas of her pain and discomfort. In these circumstances, the award of $30,000 is out of line with what this Court considers appropriate. An award of $20,000 would appear to be at the top of the range in the circumstances. As the major components of pain and suffering have been endured up to trial, there is no need for any minor adjustment to the award of $1,650 for interest on past pain and suffering.
The next attack related to the $2,000 awarded for past assistance and $3,000 for future assistance which the respondent said was rendered by her husband. Counsel for the appellant submitted that whilst these sums were relatively small, there was no evidence to warrant awards of this kind so that the assessments for each period were wholly erroneous. It was contended that the type of assistance the respondent's husband rendered her was the ordinary domestic assistance a husband would give his wife from time to time. He submitted that an award of no more than $500, if any, should be allowed with respect to past assistance. The respondent claimed about two hours per day for three days per month up to trial, excluding the period during which she was pregnant with Matthew. This comes to a little over 50 months or about 300 hours in all. At a rate of $8 per hour which was the rate advanced by counsel for the respondent at the trial, this comes to $2,400 in respect of which his Honour awarded $2,000.
In the circumstances, it is difficult to justify disturbing the award of $2,000 for past care, given that the trial Judge accepted the respondent's evidence to the effect that she was substantially incapacitated for several days each month during which she needed certain assistance. However, as there are treatments available to her for the future which will substantially, if not totally eliminate two major areas of pain, it cannot be said that she requires any form of domestic assistance in the future. The award of $3,000 with respect to the future is erroneous and should not have been allowed.
As to the costs of future treatment, the trial Judge allowed the sum of $7,700 for the future pain management course at the Belmont Hospital, taking the view that Ms Daniels' evidence indicated that all of the processes were not available in Cairns. He awarded, however, the sum of $1,000 for future counselling by Ms Daniels and then continued:"It seems to me that either the plaintiff will elect to have an hysterectomy, but if she does not, then she will have to remain on a regime of medication and either way, it seems to me, I should allow the sum of $5,635 in respect of those matters in detail
In the event that the pain clinic treatment is successful, that will reduce substantially the need for pharmaceuticals. Accordingly, I discount the figure suggested to the extent that I allow the sum of $1,500 for pharmaceuticals".
It is not entirely clear from the foregoing and the "Heads of Damage" how this component of the award was arrived at. However, it appears from the dialogue between the trial Judge and counsel for the respondent after the assessment was made, that some confusion occurred primarily due to the figures submitted in the "Heads of Damage". It appears that from the "Heads of Damage", counsel for the respondent at the trial contended for two alternative bases for the cost of future treatment as follows:
a)Belmont Hospital $7,700.00
b)Counselling $1,000.00
c)Hysterectomy $5,635.38
Hormone Replacement $3,962.00
d)Pharmaceuticals for 20 years $2,305.00
TOTAL$20.602.38
or alternatively:
a)Belmont Hospital $7,700.00
b)Counselling $1,000.00
c)Depo-Provera injections
4 times per year for 20 years $5,635.38
d)Pharmaceuticals for 20 years $2,305.00
TOTAL$16,640.38
After discussion with counsel, his Honour made it clear that the sum of $5,635.38 awarded during the assessment was to be reduced to $5,000 and was to represent a discounted allowance for the item of $5,635.38 for the hysterectomy and $3,962 hormone replacement which it was submitted the respondent might not require for several years.
Counsel for the appellant submitted that any question of a hysterectomy should have been left totally out of the trial Judge's considerations in view of the evidence of Dr Carrette and the respondent. However, his Honour effectively expressed this component of the award in the alternative so that if the respondent elected not to have a hysterectomy in the future, she would need to remain on a regime of medication which, in his view, justified a similar award. This involved a reduction of the figure of $5,635.38 to $5,000.
Counsel for the appellant submitted that all that should be been awarded to the respondent for all forms of future treatment was a sum ranging from $3,000 to $4,000. He contended that the cumulative nature of sums awarded for future treatment was objectionable and not justified on the evidence. These are as follows:1.Belmont Hospital Pain Clinic $7,700
2.Counselling $1,000
3.Future operation and hormone
treatment$5,000
4.Pharmaceuticals $1,500
TOTAL$15,200
Senior counsel for the respondent contended that no allowance had been made for the alternative course of Depo‑Provera although that is by no means clear from his Honour's reasons. There were various alternative treatments open. One was a hysterectomy plus hormone treatment. The next was Depo‑Provera, and the third was the contraceptive pill.
Given that the evidence discloses forms of treatment open to the respondent which would substantially reduce, if not eliminate, pain from ovulation and menstruation, and the fact that she had received counselling only three times in five weeks prior to the trial, there is substance in the submission for the appellant that with counselling by the psychologist in Cairns, no extra allowance for attendance at the Belmont Pain Clinic in Brisbane was justified. Dr Carrette's recommendation that the respondent be referred to a pain clinic, was based upon his acceptance in evidence-in-chief of the fact that she had been left with a legacy of continuing pain and discomfort in her pelvic area six years after the incident and was stable. His view was not based on the premise that substantial areas of pain could be simply removed or substantially alleviated by relatively simple treatment which he had not previously prescribed but admitted in cross‑examination that he was perfectly prepared to try before even considering such a radical procedure as a hysterectomy.
Accordingly, there was no justification for the award of $7,700 for a pain management course. The psychologist recommended eight sessions at a cost of $134 per hour for "psychological counselling to alleviate the pain she currently experiences and the impact it has on her relationship". This comes to $1,072. As indicated, the trial Judge awarded $1,000 for this item. There is no reason for disturbing this component.
This leaves the figure of $6,500 awarded for the two alternative treatments he described and pharmaceuticals. It does not appear whether the award of $5,000 would also have been appropriate for treatment based upon contraceptive pills, as opposed to a hysterectomy with hormone replacement on the one hand, and "medication" on the other, the latter probably referring to Depo-Provera injections. No separate allowance appears to have been made for future consultations by Dr Carrette who thought that the respondent would probably continue to see him as necessary.
The only demonstrable error in the award for future treatment appears to be with respect to the sum of $7,700 for the future pain management course. Whilst it is not entirely clear what the combined award of $5,000 covered, it has not been shown that this sum for one or other of the alternative treatments available coupled with the award of $1,500 for pharmaceuticals, was inappropriate in the circumstances.
This leaves the question of loss of earning capacity in the future. Counsel for the appellant submitted that the respondent had lost no income up to trial and that with future treatment available to her, it would be unlikely that she would lose any income in the future even if her marriage broke down which he submitted was unlikely. Senior counsel for the respondent submitted that the respondent, by working for her husband, was in a situation where she could take time off as required and so was in a favoured position which would not be tolerated by any other employer. Whilst she had not lost income to trial, she nevertheless did lose time off work. It was contended that she would face considerable difficulty in the open labour market if she could not continue to function for between two to five days every month.
Given that there is treatment available to the respondent in the future which will substantially eliminate the pain which she experiences leaving only that which she experiences during and after sexual intercourse, there is merit in the submissions on behalf of the appellant that the award of $35,000 for loss of future earning capacity is manifestly excessive. The Court is required to assess the degree of probability of the respondent's marriage breaking down and the likely effect thereof on her capacity to earn future income with another employer, given her residual disability: Malec v. J C Hutton Pty Ltd (1990) 169 C.L.R. 638.
The figures submitted to the learned trial Judge by counsel for the respondent at the trial, were $40,000 to $50,000. His Honour said that the respondent was presently in a secure employment which may only continue whilst the marriage continues. He noted the strains on the marriage directly attributable to the conduct of the appellant which appeared in particular to be related to the difficulty with their sexual relationship. His Honour expressed the view that hopefully the marriage would continue and that after litigation was over the stress would, to some extent, be relieved. He concluded that there was a clear possibility that she would lose that well paid employment with a sympathetic employer and assessed the sum of $35,000 for loss of earning capacity.
However, having regard to the fact that relatively simply future treatment is available to the respondent to overcome significant areas of her pain, it seems that if she lost her present employment, the absence of those significant areas of pain which she said had caused her to lose time off work, would be gone. There was no complaint that any discomfort she suffered for a day or so after sexual intercourse, caused her to lose time off work, although it might well have had an impact on her marriage. In these circumstances, it appears that the award of $35,000 is manifestly excessive. Having regard to all future exigencies, including the possibility of hysterectomy, loss of income as a result thereof, and any other imponderables which might flow from her condition, an award in the order of $20,000 is appropriate.
Adopting the principles referred to above, substitution of appropriate amounts for the various components under attack would make a substantial alteration to the total award. The award of $89,147.35 should be reduced by a reduction in the award for pain and suffering of $10,000, by disallowance of the award of $7,700 for the pain management course, by disallowance of the award of $3,000 for future care, and by a reduction of $15,000 in the award for future lost earning capacity. Those sums total $35,700 which means there should be a net award of $53,447.35.
In the result, the appeal should be allowed with costs. The judgment below should be set aside and in lieu thereof, there should be judgment for the respondent in the sum of $53,447.35.
In the notice of appeal, the appellant sought an order that the respondent should receive an order for costs below including reserved costs, to be taxed on the District Court scale appropriate to an action in which the plaintiff recovers less than $50,000. It appears that at the trial, the question of costs was reserved and dealt with by the trial Judge at Brisbane on 21 July 1994, following written submissions which are not in the appeal record. It appears that various offers to settle were made so that further submissions are necessary before the question of costs below can be appropriately dealt with in the light of the reduced award. Each party should lodge submissions in writing to the Court within 14 days of the date hereof.
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