Powzyk v Serchar & Anor
[2008] QDC 123
•6 June 2008
DISTRICT COURT OF QUEENSLAND
CITATION:
Powzyk v Serchar & Anor [2008] QDC 123
PARTIES:
DANIEL POWZYK
Plaintiff
V
MOTURU SERCHAR
First Defendant
AND
NOMINAL DEFENDANT
Second Defendant
FILE NO/S:
BD1305/02
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
6 June 2008
DELIVERED AT:
Brisbane
HEARING DATE:
12, 13, 14 November 2007
JUDGE:
Tutt DCJ
ORDER:
1. Judgment for the plaintiff against the defendants in the sum of $61,018.50 for damages.
2. I shall hear the parties further in respect of costs.
CATCHWORDS:
PERSONAL INJURIES – PAIN AND SUFFERING – LOSS OF EARNINGS AND EARNING CAPACITY– motor vehicle accident – where liability for accident admitted – where plaintiff sustained injuries – whether injuries of a temporary or lasting nature – whether injuries attributable to the accident likely to affect plaintiff’s future earning capacity – plaintiff’s credit in issue – whether plaintiff’s injuries were as debilitating as claimed – assessment of damages under common law principles.
COUNSEL:
Mr S J Given for the plaintiff
Mr R A I Myers for the first and second defendant
SOLICITORS:
Sinnamon Lawyers for the plaintiff
Moray & Agnew Solicitors for the first and second defendant
INTRODUCTION:
The plaintiff is a 34‑year‑old man born on 9 August 1973 who claims damages for personal injuries and other loss and damage suffered by him in a motor vehicle collision (“the accident”) on 22 July 2000 in Southport, Queensland, when a motor vehicle driven by him collided with a power pole, as a result of a vehicle travelling in the opposite direction turning suddenly across the plaintiff’s path of travel causing him to take evasive action. Liability for the accident and for such injuries and consequential loss suffered by the plaintiff arising out of the said accident is admitted on behalf of the defendants, so that the only issue to be decided at trial is the quantum of damages to which the plaintiff is entitled for the injuries he sustained as a result of the first defendant’s negligence.
PLAINTIFF’S INJURIES:
The plaintiff claims that the personal injuries he suffered in the accident include the following:
· Musculo-ligamentus injury to the cervical spine.
· Soft tissue injury to the interior chest wall.
· Musculo-ligamentus injury to the lumbar spine.
· Musculo-ligamentus injury to the left second metacarpophalangeal joint.
· Bruising and shock.
· “…an L5/S1 disc protrusion and/or an aggravation thereof and psychological abnormalities.”[1]
[1]Amended statement claim filed by leave on 12 November 2007 at paragraph [6].
DEFENDANTS’ ADMISSIONS:
On behalf of the defendants the second defendant insurer admits that in consequence of the first defendant’s breach of duty of care which he owed to the plaintiff, the latter “…suffered personal injuries and other loss and damage…” but denies “…the nature, extent and consequences thereof…” as alleged by the plaintiff.[2] The second defendant further admits the contents of Exhibits 1 and 2 tendered at trial, being the radiological reports dated 8 May 2002 and 2 October 2002 respectively, in respect of the plaintiff’s “lumbosacral spine”.[3]
PLAINTIFF’S EVIDENCE:
[2]Amended defence of second defendant filed 31 July 2007 at paragraph [2B].
[3]Trial Transcript (T.T.) p 6 line 10.
Pre accident history:
The plaintiff’s evidence essentially is in the following terms:
· He left school in year 10 in Victoria.
· He worked in a variety of unskilled and/or semi‑skilled positions as a teenager before coming to Queensland after experiencing personal problems and obtained a position “Fixing plasterboard, just putting plasterboard on the walls and the ceiling” in or about 1992.[4]
[4]Ibid p 13 lines 14-15.
· He described “…what a plasterboard fixer does… …he puts the ceiling sheets up on the ceiling, wall sheets on the walls and, yeah, anything to do with bathrooms…”[5]
[5]Ibid lines 20-22.
· He stated that the plasterboard sheeting which needs to be manipulated varies in sizes from 3.6 metres to 6 metres in length and 1.2 metres to 1.35 metres in width.[6]
· The weights “…of these various sheets... [are] …10 kilos, 20 kilos, 15 kilos; it depends on the size of the sheet”.[7]
· When he first came to Queensland he worked for one company as a plasterboard fixer for approximately four years and then commenced as a subcontractor in a plaster fixing business from in or about 1997.
[6]Ibid lines 40-45.
[7]Ibid p 14 lines 3-6.
Evidence of the accident:
The plaintiff describes the accident as occurring when the first defendant’s vehicle turned across his path and when the plaintiff attempted to avoid colliding with this vehicle he “…clipped an island… [and] …it threw the front of the car up which I had no steering then and that’s when we - we hit the power pole… [on] …driver’s side… …the front.”[8]
[8]Ibid p 17 lines 25-37.
The plaintiff’s vehicle was “a Holden Commodore” and the collision with the power pole was a “front end collision”.[9]
[9]Ibid lines 42, 53.
On collision the plaintiff states that “The engine has come back in – on to the firewall which has come back into the car – inside the car. My driver’s seat was torn out of the floor, the gearstick was sitting up in the dash and my two hands – because I still had hold of the steering wheel – like, I’ve [indistinct] and locked the column and punched my two hands into the cluster where the speedos are.”[10]
[10]Ibid 17 line 55 – p 18 line 3.
The plaintiff describes his getting out of the vehicle “…through the back door and because I was in shock, just walking around, they asked me to sit down. I couldn’t sit properly… …it just felt like someone had kicked me really hard in the bottom.”[11]
[11]Ibid p 18 lines 19-24.
He initially went to a hotel and then his brother drove him “to the Logan Hospital” where he was “examined” and “discharged on the same day”.[12]
[12]Ibid 18 line 57 – p 19 line 3.
He subsequently had physiotherapy to his “lower back… must have been a week later.”[13]
[13]Ibid p 19 lines 13-23.
He states that he did not go to work over “a 10 week period” during which period he attended “general practitioners” received medication and also attended a physiotherapist and subsequently went back to work.[14]
[14]Ibid 19 line 52 – p 20 line 17.
Time worked before the accident:
The plaintiff states that “before the accident” he worked “anywhere from six to seven days a week” and that during this period he “…only worked 30 to 40 hours”.[15]
[15]Ibid p 20 line 22 – p 21 line 2.
Duties on return to work after the accident:
The plaintiff states that upon his return to work he was unable to carry out all of his duties as he had difficulty “Just getting down to the bottom plate – the bottom of the wall, or leaning over, like, onto a 45-degree angle” and that his “back wouldn’t let” him work after the accident to the extent he was working prior to the accident.[16]
[16]Ibid p21 lines 19-21; line 52.
He states that he felt “spasm and cramping” in his back after the accident and he has continued to experience this feeling in his lower back which has had “a big big effect” on his work.[17]
[17]Ibid p 22 line 32; lines 57-58.
The plaintiff states that he “can’t do the hours like I used to” in that “prior to the accident…” he worked “…30-40 hours a week over… …five to six days” but now he can work only “four, five hour days if I’m lucky… …anywhere from three to four days (a week).”[18]
[18]Ibid p 23 lines 1-14.
The plaintiff states that the “activities of a plaster board fixer” that now cause him problems are:[19]
· “screwing of the ceiling sheets”;
· “anything that’s too big I just can’t lift properly”.
[19]Ibid lines 42-57.
The plaintiff further states that he is “…in the shower for 30 minutes of every morning, my wife rubs me down” and that when he goes to work he is not pain free, but the pain throughout the day “…just gets worse and I usually get told to go home.”[20] He drinks alcohol to ease the pain.[21]
[20]Ibid p 24 lines 2-8.
[21]Ibid line 39.
Cross-examination of plaintiff:
The plaintiff agreed he drank alcohol before the accident.
The plaintiff states that prior to the accident in July 2000 he “…never had any problems by way of pain in your (his) lower back”;[22] and immediately after the accident on 22 July 2000 he “…made no complaint whatsoever about any back pain…”[23]
[22]Ibid p 28 lines 28-29.
[23]Ibid p 30 lines 19.
The plaintiff continued to be cross‑examined at length on his responses to a number of specialist medical practitioners concerning his lack of complaint to them with respect to his “back pain” or “problems with your (his) back” and was further cross‑examined about his absence of back complaint in Exhibit 14 tendered at trial.[24] He was cross‑examined further on his examinations by psychiatrist Dr Reddan[25] and orthopaedic specialist Dr Pincus.[26]
[24]Exhibit 14: Claim Form and attached medical certificate submitted to ‘Combined insurance Company of Australia’ in respect of a claim on the plaintiff’s disability insurer and for his incapacity post accident.
[25]Report dated 1 July 2005 from Dr JG Reddan’s marked “Exhibit 17”.
[26]Report dated 24 April 2003 from Dr P Pincas’s marked “Exhibit 16”.
The plaintiff was further cross‑examined in respect of his pre‑accident and post‑accident earnings and what he had told Dr Scott F Campbell, when he informed Dr Campbell that he had “…ceased work in November 2003 as he was no longer able to cope. He is currently unemployed and not looking to re‑enter the work force.”[27] Dr Campbell who examined the plaintiff on 28 November 2003 (3 years 4 months post accident) had made a diagnosis of the plaintiff as suffering from “L5/S1 disc injury and protrusion”[28] and that the plaintiff’s “…disc protrusion is likely to be related to the accident.”[29]
[27]Report dated 1 December 2003 from Dr Scott F Campbell marked “Exhibit 3” p 3.
[28]Ibid p 4.
[29]T.T. p 166 lines 22-23.
In cross-examination on point, Dr Campbell stated that there are a percentage of patients who may experience a delay in the onset of back pain following a motor vehicle accident and he described this comparison in the following terms:
“…if you take a hundred cases, for example, I would think probably 60 to 70 per cent of patients are going to say they experienced the pain immediately after the accident, or them getting out of the car, or – or regaining consciousness. Then you’re going to get another further 10 to 20 per cent who are going to complain – develop pain over the next two or three days, and then you might get 5 to 10 per cent who are going to develop pain over two to three weeks. And, probably another small portion – five per cent – who are going to have delayed onset of pain. And, usually those patients are patients who are distracted by the problems, such as they may – they may spend an extended period of time in hospital recovering from a laporotomy from their trauma or their head injury, and then they get out of hospital or get off their painkillers, they may then experience pain.”[30]
[30]T.T. p 159 lines 8-23.
After examination, Dr Campbell described the plaintiff’s prognosis in the following terms:
“Mr Powzyk’s prognosis with regard to returning to work as a plasterer is poor. It is likely that any return to work involving lifting, bending and working in awkward postures could cause aggravation and deterioration of his condition.
Mr Powzyk’s prognosis with regard to returning to the workforce in any capacity is poor due to a combination of the chronic back pain, poor sitting tolerance, lack of education and training in other career pathways and the stigma of a lower back complaint.”[31]
With the benefit of hindsight this prognosis was subsequently found to be inconsistent with other evidence adduced at trial in respect of the plaintiff’s work activities.
[31]Report dated 1 December 2003 from Dr Scott F Campbell marked “Exhibit 3” p 4.
Plaintiff’s “Disc Protrusion” and medical evidence thereon:
As referred to in paragraph [2] above, the plaintiff claims, among other things, that he suffered “an L5/S1 disc protrusion and/or an aggravation thereof…” which is an integral part of his alleged ongoing physical disabilities.
The evidence on point arises from several sources, namely:-
· An x-ray report dated 8 May 2002 (1 year 10 months post accident) in which its findings are stated as:
“Vertebral bodies and neural arch is intact. Disc spaces preserved. Minimal lumbar tilt convex to the left. Visualised sacroiliac joints within normal limits.”[32]
[32]Report dated 8 May 2002 from Dr Neil Orr marked “Exhibit 1”.
· An MRI Lumbosacral Spine report dated 2 October 2002 (2 years 2 months post accident) in which its findings are stated as:
“There is disc degeneration and narrowing at the L5/S1 level. There is a central posterior disc protrusion which is slightly more prominent to the right of the midline. This appears to cause mild displacement of the right S1 nerve root and some mild compression of the anterior aspect of the thecal sac.
The L5 nerve roots leave the exit foramina unimpeded. There is no other abnormality in the lumbar discs.”[33]
[33]Report dated 8 May 2002 from Dr GA Cowderoy marked “Exhibit 2”.
In addition to the evidence of Dr Campbell referred to in paragraphs [21] to [23] above the plaintiff was examined by Dr Richard Williams, orthopaedic surgeon, in January 2001 (6 months post accident) whose report dated 17 January 2001 of that examination is Exhibit 12 in the proceeding.
Dr Williams provided a further report dated 17 October 2007 which is Exhibit 13 in the proceeding in which he was asked to provide specific opinion in the follow terms:
“Could you please provide us with your opinion on causation between the accident and the disc protrusion noted on the MRI:”
To which he responded:
“It is my opinion that there is no causation between the motor vehicle accident described and the disc protrusion at the L5/S1 level which is noted on MRI examination, the report of which has been provided and dated 2 October 2002. In my opinion the discal condition is likely pre‑existent to the motor vehicle accident described and that the latter is likely to have caused an exacerbation of the former.”
In cross‑examination the following evidence emerged:
“Do you regard the disc protrusion as large or small?-- I regard the disc protrusion as significant which is more likely large than small.
All right. And that disc protrusion that is shown on the MRI of 2002 that extent of that protrusion was as a result of degenerative changes and the motor vehicle accident if he made complaints of back pain after the accident?-- Yes, in my opinion, if Mr Powzyk reported lower back pain following the motor vehicle accident of July 2000 there’s every likelihood that this lower back lesion which may have been asymptomatic or without symptoms until the motor vehicle accident, could have become symptomatic or painful as a result of the forces involved in the motor vehicle accident.”[34]
[34]T.T. p 201 lines 13-26.
And further, in re‑examination:
“Doctor, if there was an exacerbation of this disc as has been postulated what would be the outside of the period from the 22nd of July 2000 when you would have expected some symptoms to manifest themselves?-- I would have expected symptoms to become obvious within 48 hours.”[35]
[35]Ibid p 202 lines 5-10.
The medical evidence in respect of the plaintiff’s complaint of any back pain does not arise until a notation in the plaintiff’s general medical practitioner’s records of 9 August 2000,[36] with the notation stating: “Request referral physio Chris Knight re neck and upper back injury (post MVA).”[37] (emphasis added)
[36]18 days post accident.
[37]Plaintiff’s records from Beenleigh Family Practice marked Exhibit 19; T.T. p 242 lines 38-41.
The first reference of any complaint in the plaintiff’s lower back is a notation in the records on 20 August 2000 “could not (indistinct) lift any weights etc low back pain? Muscular strain.”[38] There are subsequent notations in other medical records of the plaintiff complaining of lower back pain in early 2002 but those complaints were unrelated to any motor vehicle accident. (emphasis added)
[38]Ibid; T.T. p 242 lines 1-11.
Dr John Cameron, consultant neurologist, examined the plaintiff on 5 November 2004 (four years four months post‑accident), who expressed the following opinion:
“Overall it would appear that Daniel Powzyk did suffer an injury to his lumbar sacral junction in the motor vehicle accident and that his symptoms so related to his lower back had resolved within 3 months of the accident in October, 2000.
It would appear that this man has suffered further exacerbations of lower back pain since that time representing aggravations to his underlying degenerative disc at L5-S1.
It is my overall opinion that this man’s lower back injury related to the motor vehicle accident had settled within 3 months of the incident and that his present complaints related to his lower back are related to underlying degenerative disc disease probably at L5-S1.”[39]
On his examination Dr Cameron reported of the plaintiff:
“He stood and walked around on a couple of occasions during the interview. His movements were very slow and he demonstrated a limp favouring the left leg. His posture was slightly stooped. He states he was tender to gentle palpation over the lower lumbar sacral region. His muscles felt voluntarily tight in this region. He could barely walk on his toes and heels. He had a full range of neck movements. Straight leg raising was unrestricted to 90 degrees sitting on the couch. There was no discomfort expressed”[40]
[39]Report dated 9 November 2004 Dr John Cameron marked “Exhibit 11” p 5-6.
[40]Ibid p 3-4.
Dr Cameron was further asked his opinion on the relationship between “the central posterior disc protrusion” and the motor vehicle collision, to which Dr Cameron replied:
“As a primary cause, I don’t believe so. If you had suffered an acute disc protrusion, you’re incapacitated in the first period of time around the accident. You complain of back pain at the time and you’re incapacitated from that time.”[41]
[41]T.T. p 150 lines 39-47.
In cross‑examination Dr Cameron conceded that an impact of the nature suffered by the plaintiff in the subject accident “can cause a disc injury”[42] and that:
“…the MRI scan – is completely consistent with that sort of motor vehicle accident causing damage to this gentleman’s disc, 18 to 20 months before the result – before the examination?… if the clinical correlation is there.”[43]
[42]Ibid p 153 line 55.
[43]Ibid p 154 lines 20-23.
Ultimately Dr Cameron concluded that “…this was a degenerative disc from other reasons. It may have been stepped up a bit from the accident but it wasn’t caused by the accident.”[44]
[44]Ibid p 155 lines 53-55.
Video surveillance of plaintiff:
Extensive video surveillance of the plaintiff was admitted into evidence in respect of his work activities from November 2004 (4 years 4 months post accident) but particularly in late January/early February 2006. Essentially the video footage revealed the following:
· The plaintiff’s work day commenced at or about 5.30 am when he and his co‑workers left the plaintiff’s residence in the work-van, after having on some occasions loaded the vehicle with tools and other items of equipment;
· The plaintiff is shown to be lifting various items of equipment;
· Bending from the hips to ground;
· Stretching out in front of him to place items in the work-van;
· Carrying what appears to be a two to three metre board or plank and placing it into the van;
· Arriving at the work-site at approximately 6.15/6.30 am;
· Stepping up onto a patio approximately 1 metre from ground level of a partially constructed dwelling house;
· Holding one end of a large plaster board with a co‑worker at the other end and moving it from one position to another – repeating this process on several occasions;
· Carrying a piece of plasterboard over an uneven surface and lifting it above his head;
· Climbing up and down trestles onto a work plank;
· Hammering a piece of plasterboard above his head by stretching from his position on the work plank and repeating this process by stretching forward;
· Using a nail gun in one hand above his head to nail a piece of plasterboard to the ceiling while holding the plasterboard with the other hand and repeating this process for several minutes;
· Jumping off the work plank;
· Carrying crates of tools or other equipment to the work van;
· Lifting trestles;
· Carrying wooden planks on his shoulders;
· Continuing to use a nail gun above his head to affix pieces of plasterboard to a ceiling.
Plaintiff’s Earnings:
The evidence in respect of the plaintiff’s earnings showed that the plaintiff’s taxable income for the financial years ending 30 June 2000 to 30 June 2007 respectively is as set out in the table below.
Year Ended Business Income Business Net Profit Taxable Income 30 June 1998 $19,691 $15,492 $15,492 30 June 1999 $20,911 $17,211 $17,211 30 June 2000 $40,164 $21,725 $21,725 30 June 2001 $27,454 $20,756 $20,756 30 June 2002 $50,822 $28,208 $28,208 30 June 2003 $53,910 $42,522 $42,786 30 June 2004 $54,200 $42,651 $42,759 30 June 2005 $57,083 $46,153 $46,153 30 June 2006 $82,363 $62,483 $54,129
Pre accident
Year of accident
Post accident
The plaintiff’s income tax returns containing his taxable income and which reflect the net profit of his business do not show any reduction in income in the years following the accident. In fact, the returns show that the business has continued to prosper from 2001 to the present time returning increased profits each year over this period.
PLAINTIFF’S SUBMISSIONS:
In summary the plaintiff submits:
· Exhibit 2 which confirms the plaintiff’s “central posterior disc protrusion” must be accepted and that “This injury was either caused by the accident, or, if Dr Williams’ oral evidence is accepted, shows a degenerative condition that, but for the accident may not have troubled the plaintiff for perhaps 20 years”;[45]
[45]Plaintiff’s written submissions dated 14 November 2007 at paragraph [2.1].
· The neurosurgeon, Dr Campbell, has no doubt that the plaintiff suffered the injuries set out in Exhibit 2 in a motor vehicle accident and Dr Cameron “…concedes that the MRI results could be consistent with a motor vehicle accident causing a central disc protrusion… [and] …at the very least, the accident was a contributory cause to the disc pathology”;[46]
[46]Ibid at paragraph [3.1].
· The effect of the plaintiff’s injury is “…that it impedes the plaintiff from working to a greater capacity”;[47]
· The plaintiff is entitled to an award of damages under the usual heads of damage including general damages; and
· An award for gratuitous services and past and future economic loss.
[47]Ibid at paragraph [4.1].
DEFENDANT’S SUBMISSIONS:
In summary the defendant submits:
· “…there are two principal issues arising for determination. The first is whether the plaintiff suffered any back injury in the incident giving rise to this claim. Second is whether any injuries occasioned to the plaintiff have interfered with his earning capacity”;[48]
[48]Defendant’s written submissions dated 14 November 2007 at paragraph [1].
· The plaintiff has exhibited “both overstatement and exaggeration” in many aspects of his evidence with respect to his account of events and disability to a number of medical practitioners and others;
· Ultimately the court would find “…that the plaintiff did not sustain any back lesion in the incident on 22 July 2000… [but] …little more than superficial injuries”;[49] and
· Any damages awarded to the plaintiff should be “nominal” to include “…some component to reflect the fact that he may have been incapacitated for a short period”.[50]
[49]Ibid at paragraph [28].
[50]Ibid at paragraph [29].
FINDINGS:
On a review of all evidence and the submissions made I make the following findings:
That as a result of the accident on 22 July 2000 the plaintiff suffered, in addition to superficial musculo-ligamentus injuries, an aggravation or exacerbation of a pre‑existing disc protrusion at the L5/S1 level which was developing at that time and largely asymptomatic but which became symptomatic within a few weeks requiring treatment. In respect of this finding, I prefer the evidence of Dr Richard Williams, consultant orthopaedic surgeon; Dr John Cameron, consultant neurologist and Dr Paul Pincus, orthopaedic surgeon, to that of Dr Scott Campbell, orthopaedic surgeon, where the opinions of the former differ from those of the latter.
That as a result of the plaintiff’s injuries he became incapacitated, causing him to be unable to work for a period of approximately 11 weeks. He was then able to return to work on “light duties” before gradually resuming full‑time duties as a plasterboard fixer.
That from time to time thereafter, the plaintiff has suffered pain including “spasm and cramping” in his back which is attributable to the accident, but I find that the plaintiff substantially overstated and/or exaggerated his symptoms and inability to carry out work-related duties, as confirmed by the video surveillance footage of his working day referred to in the evidence, which clearly showed that he was able to perform a full day’s work of at least seven hours, without difficulty carrying out the physically demanding activities as described and observed in his occupation as a plasterboard fixer.
That the plaintiff’s evidence of his limited or reduced working capacity as a result of the accident is inconsistent, not only with the physical evidence adduced at trial, but also with the financial records tendered evidencing his earnings over the years following the accident to the present time. His answers under cross‑examination on this issue were vague and evasive where he appeared to be trying to give implausible explanations about “cash payments” to employees which somehow (but inexplicably) impacted adversely upon his earning capacity.
That his capacity to work at the present time is largely unaffected by the accident in that his working day and hours worked per week are essentially the same now as they were prior to the accident based upon the evidence adduced at trial, but I find that it is appropriate to allow a small global sum for the slight impairment of earning capacity to compensate the plaintiff for those random occasions when he may suffer a recurrence of symptoms referrable to the accident which may impact upon his working day.
That the only concession in respect of his back condition to which the accident may have contributed to some extent (but not to any significant degree bearing in mind the plaintiff’s lengthy work history as a plaster board fixer) is that the plaintiff now wears a back support from time to time during the course of his work activities, but as the video surveillance evidence shows the wearing of this back-support enables him to carry out his duties as a plaster board fixer with minimal, if any, impediment.
ASSESSMENT OF DAMAGES:
General damages:
The assessment of the plaintiff’s damages in this proceeding is not subject to the legislative changes relevant to claims for damages for personal injuries suffered post 18 June 2002 and is therefore to be assessed on the general common law principles applicable to claims arising before that date.
A summary of the plaintiff’s alleged difficulties and problems has been set out in paragraphs [13] to [17], which must be read in conjunction with the findings in paragraph [41] above, and taking all relevant matters into account I assess his general damages for pain and suffering/loss of amenities in the sum of $25,000.00. I allow interest on the sum of $20,000.00 of this amount at the rate of 2% for 7.9 years which amounts to the sum of $3,160.00.
Past economic loss:
In accordance with my finding that the plaintiff was totally incapacitated for work for a period of approximately 11 weeks immediately post accident and thereafter partially incapacitated for work for several further months I assess the plaintiff’s past economic loss in the sum of $8,500.00 based upon his net earnings at the time of the accident of approximately $420.00 per week and after making an additional allowance of a reduced working capacity for approximately 9 months thereafter. I allow interest on this sum at 5% for 7.9 years which amounts to the sum of $3,360.00. .
Future economic loss:
I find that the plaintiff’s future earning capacity for the remainder of his working life arising from the accident of 22 July 2000 has been impaired to a slight degree only, restricted to those random occasions when his symptoms referable to the accident may impact upon his earning capacity, and I assess his future economic loss on a global basis in the sum of $15,000.00.
Past gratuitous care:
I find that the plaintiff would have needed some assistance on a daily basis for some months post accident but no longer than for a period of nine months on a reducing basis to the end of this period. I assess the plaintiff’s damages under this head of damage in the sum of $4,000.00. I will allow interest on this sum at the rate of 5% for 7.9 years which amounts to the sum of $1,580.00.
Future gratuitous services:
I am not satisfied that the plaintiff requires any assistance for future care arising out of the accident and I make no allowance under this head.
Special damages:
I will allow past pharmaceutical expenses in a global sum of $300.00 as the plaintiff would have required medication from time to time for the effects of the injuries he sustained from the accident. I will allow interest on this sum at the rate of 5% for 7.9 years which amounts to the sum of $118.50.
Future pharmaceutical:
I am not satisfied that the plaintiff is entitled to any damages under this head arising out of the accident and I make no allowance therefor.
Future Medical Expenses:
I am not satisfied that the plaintiff is entitled to any award under this head of damage as should he require future surgery for any back condition which is contraindicated,[51] it would not arise from of the sequelae of the accident. I make no allowance under this head.
[51]See Report dated 1 December 2003 from Dr Scott F Campbell marked “Exhibit 3” p 5; Report dated 17 January 2001 from Dr Richard Williams marked “Exhibit 12” p 4; Report dated 17 October 2007 from Dr Richard Williams marked “Exhibit 13” p 1.
Summary:
In summary I assess the plaintiff’s damages as follows:
Head of Damage
Amount
General Damages
$25,000.00
Interest on $20,000.00 at the rate of 2% for 7.9 years.
$3,160.00
Past Economic Loss
$8,500.00
Interest on Past Economic Loss at the rate of 5% for 7.9 years.
$3,360.00
Future Economic Loss
$15,000.00
Past Gratuitous Care
$4,000.00
Interest on Past Gratuitous Care at a rate of 5% for 7.9 years.
$1,580.00
Special Damages:
a) Past Pharmaceutical Expenses
b) Interest on Past Pharmaceutical Expenses at a rate of 5% for 7.9 years.
Total
$300.00
$118.50
$418.50
TOTAL
$61,018.50
I give judgment for the plaintiff against the defendants in the sum of $61,018.50 for damages and I shall hear the parties further in respect of costs.
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