Ridge v Wright
[1991] TASSC 133
•10 May 1991
Serial No B19/1991
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Ridge v Wright [1991] TASSC 133; B19/1991
PARTIES: RIDGE, Anna Louise
v
WRIGHT, Anthony Rex
FILE NO/S: 150/1988
DELIVERED ON: 10 May 1991
JUDGMENT OF: Zeeman J
Judgment Number: B19/1991
Number of paragraphs: 32
Serial No B19/1991
List "B"
File No 150/1988
ANNA LOUISE RIDGE v ANTHONY REX WRIGHT
REASONS FOR JUDGMENT ZEEMAN J
10 May 1991
On 8 January 1988 the plaintiff was a pillion passenger on a motor cycle being ridden by the defendant at Bicheno. The defendant lost control of that motor cycle. It collided with a guide post. The plaintiff was thrown from the motor cycle. As a result, the plaintiff was severely injured. The plaintiff alleged that her injuries were the result of the negligent riding of the defendant. The defendant admitted negligence and on 10 August 1990 a consent judgment was entered in favour of the plaintiff against the defendant for damages to be assessed. I am required to assess those damages.
The plaintiff was born in New South Wales on 21 November 1959. She was educated at schools in that state. She completed her fourth year of high school, obtaining passes at an advanced level in Art, History and Geography, at an average level in Mathematics and Science, and at a credit level in English. Upon leaving school in 1975, the plaintiff obtained employment at Woolworths and later at Coles, both in Chesterfield, New South Wales. She then commenced general nursing at the Bankstown Hospital in Sydney. She completed two years of her general training. She did not complete that training, but instead, after leaving the employ of the hospital, obtained her Nurses' Aide Certificate at the level of a credit pass. After achieving that qualification, the plaintiff was employed at a number of geriatric homes, and later in the operating theatre of the Bexley Private Hospital in Sydney. From the time that the plaintiff ceased general nursing training until she obtained her Nurses' Aide Certificate she was employed in a fruit and vegetable shop.
In about 1980 the plaintiff left Sydney and moved to northern New South Wales. Nursing work was not there available to her. The plaintiff continued to live in that area for two years or thereabouts. Initially she obtained some casual employment at a restaurant and also engaged in some minor business enterprises making and selling bikinis and making health food cakes for sale in a local shop. For most of the time during which the plaintiff lived in northern New South Wales she managed a nursery, principally growing macadamia nut trees. Whilst managing the nursery the plaintiff was provided with board and lodging but was not otherwise remunerated. I infer that the plaintiff enjoyed the climate and lifestyle so that she was content to work without pay.
In 1982 the plaintiff came to Tasmania with a friend, intending to have a two week holiday. In fact, the plaintiff has continued to live in Tasmania since that time. Within several days of arriving in Tasmania she obtained employment splitting scallops at the Stanley Fish Factory. She took up residence at Forest. After some time, and whilst still continuing in her work splitting scallops, the plaintiff obtained other employment at the General Jones Factory at Smithton packing vegetables. At General Jones the plaintiff worked day shift, afternoon shift or night shift. When working afternoon shift or night shift, she also worked at the Stanley Fish Factory splitting scallops. She said that the number of hours she worked would depend on how tired she got and when she was needed back at General Jones. For some months she was working seven days a week. I infer that her employment at General Jones was full time, sometimes with overtime. For much of that time she was also working for about four hours per day splitting scallops. She continued in both positions until some time in 1983 when she moved from Forest to Mt Hicks. Her recollection was that whilst holding both positions she was earning about $370.00 per week at General Jones and about $150.00 per week at the Stanley Fish Factory, in each case clear of income tax. There were variations, no doubt depending upon the actual hours worked, but I accept that those amounts represent a fair approximation of the plaintiff's earnings during the period that she held both positions.
The move to Mt Hicks was as a result of the plaintiff meeting her future husband and moving to his sister's house in that district. Whilst living there, she continued to do a little work at the Stanley Fish Factory and also milked 100 or so cows twice a day and cared for her future sister–in–law's child. She was engaged in milking cows for about six months. The plaintiff married on 12 April 1984. At that time she was still doing some work at the Stanley Fish Factory and continued doing so until shortly before her child was born on 19 September 1984, by which time the plaintiff and her husband were living at Henrietta. The evidence does not enable me to find what was the extent to which she worked at the Stanley Fish Factory after she moved to Mt Hicks. During the period from the birth of her child until October 1985, the plaintiff was not in employment except for several isolated instances, earning $118.00 from the Stanley Fish Factory, perhaps as much as $1,500.00 at a fish factory at Beauty Point and other small amounts from casual work.
The plaintiff and her husband purchased a house and land at Rocky Cape and they occupied it as their home from about June 1985, having in the meantime lived at Tewkesbury for some time. The house was in a very run–down condition. Substantial work was done to upgrade the house. The photographs in evidence demonstrate that what had been a derelict cottage was considerably upgraded. To a large degree, the work was done by the plaintiff. In October 1985 the plaintiff and her husband separated. She left Rocky Cape but continued to do some work at the property in which she retained a joint interest.
Not long after separation the plaintiff obtained other employment in the fishing industry. She was then living at Wivenhoe. She worked at Petuna Seafood and Richey Fishing, both in Devonport. The evidence does not enable me to conclude, with any degree of confidence, the periods during which the plaintiff worked for those employers. However, whilst so employed, the plaintiff sometimes worked a shift at Petuna, followed by a shift at Richey. She estimated that at Petuna she was earning about $600.00 per week and at Richey between $300.00 – $500.00 per week during the early part of 1986. The largest amount she ever received in any week by way of the combined wages from both employers was $1,200.00, and the lowest amount about $600.00. All those amounts were clear of income tax. However the plaintiff said that her total earnings from her various forms of employment from separation until she commenced in business around the middle of 1986 was "a couple of thousand dollars" or "probably a bit more". Rather surprisingly no evidence of the plaintiff's actual earnings with Petuna Seafood and Richey Fishing was led. The factory manager of Petuna Seafood was called by the plaintiff but he was asked nothing as to the plaintiff's actual earnings at any time. Later in 1986 the plaintiff commenced to operate a business, in partnership, cleaning and detailing trucks and other types of motor vehicles. That business did not prosper, to some extent as the result of the lack of attention given to it by the plaintiff's partner. Operations ceased in December 1986. After that venture had ceased, the plaintiff again worked for Petuna Seafood, but only on a casual and certainly not a full time basis. She said that sometimes she worked a 45 – 50 hour a week for which she was paid about $800.00 (I infer clear of income tax). Whilst I do not reject the proposition that she may have earned that in a week, I conclude that her earnings during 1987 were very significantly less than the amount that she would have received had she worked full time. I conclude that she worked intermittently, occasionally working a full week, but more often working for a few days only or not at all. About that time, the scallop industry ceased to exist as a result of Government action to prevent the resource being fished out. The plaintiff's work at Petuna then consisted of filleting fish rather than splitting scallops. She made some enquiries about obtaining work at the Wynyard Hospital but those enquiries led to nothing other than the possibility that the plaintiff might undergo a refresher course in auxiliary nursing in 1988.
Since separating from her husband, the plaintiff has been in receipt of a supporting parent's benefit, presumably under s.54 of the Social Security Act 1947. That benefit has been paid continuously since separation. The plaintiff has advised the Department of Social Security of her earnings from time to time, but the amount thereof has never been such as to result in payment of the benefit being terminated, although it has been reduced from time to time. Counsel did not address me on what might flow from that evidence, particularly by way of it being indicative of the maximum earnings which the plaintiff might have derived from her various forms of employment. It is not appropriate that I endeavour to carry out the complex calculations which would be required for this purpose. The Social Security Act has been amended from time to time during the relevant period. The consumer price index is relevant by virtue of s.34 of that Act but I have no evidence of this index. The evidence is that for the financial year ended 30 June 1989 (which was, of course, after the plaintiff suffered her injuries) and when she earned no income attracting the provisions of s.48(3)(a)(i) of the Act (which applies to the plaintiff's benefit by virtue of s.56), the plaintiff received a total benefit of $6,370.10. If that amount represented the maximum benefit payable under the Act, then a broad brush approach would suggest that during that year, the plaintiff would have been able to earn income of up to $8,500.00 before she would have ceased to have been entitled to receive any benefit. The applicability of indexation to the rate of a pension would suggest that in earlier years the level of income resulting in the entitlement to benefits ceasing would have been somewhat less. During 1987 the plaintiff was engaged in fish filleting at Petuna Seafood. She said that she earned from $300.00 to $500.00 per week clear of income tax. Her pension position and her own evidence that she worked on a casual basis as and when required lead me to the conclusion that her average earnings during 1987 were very much less.
The plaintiff's employment history prior to her accident is one displaying a willingness to work hard and to engage in occupations involving significant physical exertion. Her positions at Coles and Woolworths and her employment as a nurse all involved significant heavy lifting. Hard physical work was required at the nursery in northern New South Wales and in the milking of cows, although neither was productive of cash income. Scallop splitting and fish filleting involve considerable physical exertion. If such work is to produce substantial income (being paid for at piece work rates), it requires manual dexterity. The evidence discloses that the plaintiff had particular skills in scallop splitting and a resultant capacity to earn relatively high levels of income. The closing down of the scallop fishing industry for an indefinite period has had some affect upon her earning capacity, but such affect was substantially ameliorated by her ability to earn income from fish filleting. Whilst her degree of skill in that occupation may not have been quite as high as in scallop splitting, I am satisfied that she was a competent fish filleter. She had the capacity to earn substantial income, although frequently she chose not to utilize her capacity or to utilize it to a limited extent only. I will return to these matters in due course.
After her accident, the plaintiff was taken to the Swansea Hospital, and from there was transferred to the Royal Hobart Hospital by ambulance. On admission, the presence of bilateral pneumothoraces was confirmed. She suffered fractures of four ribs on the left hand side, and of one rib on the right hand side of the chest. She suffered some injury to the neck and left elbow. Intercostal tubes were inserted at the hospital. The plaintiff spent six days as an in–patient at the Royal Hobart Hospital when she was discharged to go home. It was her desire that she be discharged at that stage. She described her condition at the time of discharge as having been very poor. She was driven to Wynyard laying down in the back of a panel van. On the very day that she returned home, she was re–admitted to the North–Western General Hospital at Burnie. The plaintiff described the circumstances of that admission as being that she was suffering from considerable pain in the chest and was having difficulty in breathing. She found the pain unbearable. After admission to the hospital at Burnie, it was discovered that the plaintiff had suffered a further pneumothorax on the left side. As a result, she was transferred back to the Royal Hobart Hospital where she had a bronchoscopy and a further intercostal tube was inserted. She was discharged again on 23 January 1988. She returned to Wynyard. She had lost considerable weight. Her pre–accident weight was 8½ stone. On her second discharge from hospital, she weighted 6 stone.
Friends of the plaintiff assisted in caring for her and her daughter at Wynyard. The plaintiff was assisted by friends in many respects. She underwent daily physiotherapy. After a few months her condition improved somewhat, but she still suffered from considerable pain in the upper left portion of her back, her left arm and her neck. She was seeing a general practitioner, who prescribed Panadol Forte. She was seen as an out–patient at the Thoracic Surgical Clinic of the Royal Hobart Hospital on 15 April 1988, when the surgeon described her as "clinically not too bad apart from the problems with her neck which are still worrying her with pain going down her left arm but as far as her chest is concerned she is now reasonably active. X–rays show she has some scarring of the left base which is understandable following the degree of trauma she had and I have reassured her accordingly." In the early months after her accident, the plaintiff found that her left arm was useless, describing it as being "unusable, it couldn't do anything. It couldn't control anything." Whilst there was some improvement during 1988, the plaintiff continued to be quite severely disabled for the whole of that year. Towards the end of that year, she attended a modelling course in an endeavour to correct what she perceived was a serious problem with her posture. In her own words, she described her reasons for embarking upon the course as follows:
"My accident left me twisted, I was walking down the street with Carl one day and people were making fun of me walking down the street 'cause I was twisted, I was a good looking sort before my accident and then all of a sudden I was ugly and I'm not going to just lay back and let life dish this card to me and accept it, I came back as strong as I could."
She was not very successful in that course, graduating last in her class. She was unable to straighten her arm and that affected her deportment. Her balance was upset. The modelling course did lead to some minor employment, but apparently limited to earning a gross sum of $102.00. At about the same time, she attended a Technical College course intended to teach her some appropriate skills relevant to seeking employment. She said that at that time she was without the capacity of returning to employment such as scallop splitting and fish filleting. I accept that that was so and that she has not regained the capacity to perform such work. I accept that her disabilities were and continue to be such that none of the types of work involving significant physical exertion or manual dexterity have been reasonably open to her. Broadly speaking, I accept the plaintiff's evidence as to her continuing pain and limitations upon movement to which I will refer in greater detail shortly.
The plaintiff has endeavoured to earn some income from leadlighting in which she has become reasonably skilled. Even that occupation is one which she can pursue only with some difficulty and subject to some limitations. I am not persuaded that it is likely to be very remunerative even if the plaintiff actively pursues it in future. The witness Lorna Gregory, who is engaged in this occupation full time, has been successful in it to a moderate degree. As to how remunerative her pursuit of that occupation has been is difficult to say. She is able to draw about $200.00 per week out of the business. What relationship those drawings might bear to her actual net profit does not appear from the evidence. The plaintiff's one significant venture into leadlighting was for some months last year when she did repair and restoration work to the stained glass windows at the Wynyard Catholic Church. That task occupied her for some four months. Counsel for the plaintiff submitted that she derived a net profit before tax of some $1,500.00 from that project. An examination of the plaintiff's income tax return for the relevant year suggests that that may be an overstatement of the plaintiff's actual profit. In any event, there is no degree of certainty that the plaintiff will obtain other similar commissions, or indeed, whether she would feel able to perform them, having regard to the difficulties which she had in completing the work at Wynyard.
The principal medical evidence was that given by an orthopaedic surgeon, Mr Morgan, and a physician, Dr Maclaine–Cross. Where there is a difference of opinion between those two medical practitioners as to the capacity of the plaintiff to perform various types of employment, I prefer the evidence of Dr Maclaine–Cross. That is in no way intended to be critical of Mr Morgan, who considered the matter from the point of view of an orthopaedic surgeon, and without reference to certain other factors, including psychological factors, which were relevant to Dr Maclaine–Cross' conclusions. As to psychological factors, I accept the evidence of the psychologist, Mr Marriott, who was called. The expert evidence supports my conclusion that the plaintiff has been and continues to be significantly disabled by pain. The extent of that pain is somewhat greater than that which might be predicted upon the basis of her known physical injuries. It was to those injuries that Mr Morgan's remarks were principally directed. The plaintiff's initial physical injuries were major. They resulted in severe pain having an organic basis. The plaintiff does not presently suffer from any significant physical abnormality other than a 20o loss of flexion in the left arm but the pain has persisted and to some extent worsened. I am satisfied that the plaintiff suffers from severe chronic pain. She suffers from continuing pain on the inside of the left elbow. The nature of that pain varies from an ache to a sharp pain. The plaintiff suffers from chronic pain across her back. The performance of tasks such as vacuum cleaning or those involving bending exacerbate the pain. The plaintiff's limited intellectual capacity, chronic pain and inability to engage in physically taxing pursuits have led to anxiety, depression and low self esteem. Anxiety and depression have exacerbated the pain which in itself has resulted from soft tissue injury. On balance I consider that the plaintiff's pain will persist indefinitely although it may reduce in intensity and the plaintiff may better learn to cope with it as time goes on. I should add that my own observations of the plaintiff during the course of the trial, both in and out of the witness box, support my view that the plaintiff is genuine in her descriptions of the pain which she has suffered and continues to suffer. During examination–in–chief, the plaintiff came across as a person clearly proud of her former abilities to perform hard physical work for long periods of time and to earn income significantly higher than the norm. She put on a brave face. After the luncheon adjournment on the first day of the trial it became apparent that the plaintiff was suffering from discomfort. She became upset during certain portions of her evidence. As the trial progressed, it became noticeable that the plaintiff, who initially had come across as a bright and alert person fully in control of herself, looked more and more miserable and uncomfortable. My observations tend to confirm Mr Marriott's view that the plaintiff has been suffering from severe reactive depression. Her action in travelling to Sydney in April 1991 for an MRI scan (to which I will refer further in a different context) is indicative of a desire to have identified the underlying cause for her continuing pain and to have it treated. Her desire to undergo this prior to trial is not indicative of a plaintiff seeking to maximise and prolong symptoms so as to maximise damages.
It may be that the programme of psychological counselling recommended by Mr Marriott and approved of by Dr Maclaine–Cross would have some beneficial effect in so far as the plaintiff is concerned. However, it is not suggested that such a programme will act as a cure–all. Its likely effect was described by Dr Maclaine–Cross as follows:
"QWhat effect do you perceive it may have upon her capacity to deal with that pain?
AI think it will make her life more tolerable, it won't solve all her problems. The reality is that she's going to have to live with chronic pain. She's going to be quite severely incapacitated on a long term basis and that's a major adjustment, and I think she needs help to do that. But it's going to help but it's not going to completely solve her problems. I think she's likely to continue to have low self esteem, anxiety and depression."
I accept Dr Maclaine–Cross' evidence that there is no prospect at all of the plaintiff returning to the type of work which she performed at various fish factories and the General Jones factory. I find that the plaintiff is never again likely to engage in work requiring physical strength to any degree for any significant period. I accept the evidence of Mr Mahoney, the Assistant Director of Nursing at the Burnie Hospital. I conclude that it is most unlikely that the plaintiff would ever be able to perform the work of a nurse, auxiliary nurse, nurse's aide or the like. It may be that the long period of time which has elapsed since the plaintiff last carried out such work means that the prospects of her regaining that type of employment would have been remote in any event.
In my view, the plaintiff has little earning capacity left. The capacity to earn income from the type of work in which she engaged prior to her accident has virtually disappeared. It was submitted by counsel for the defendant that there were other areas of employment reasonably open to the plaintiff including clerical work and the work of a sales assistant. Some of those positions might theoretically be open to the plaintiff in that she would be able to perform the work required. Certainly Dr Maclaine–Cross thought that the plaintiff was capable of performing light physical work but possibly only on a part time basis. Nevertheless, many positions in these categories would be unsuitable for the plaintiff if they involved long periods of standing or heavy lifting. Even those which might theoretically be open to the plaintiff must be looked at in a realistic light. The plaintiff has never been engaged in clerical work, although some of her earlier positions may incidentally have required her to perform some clerical functions. She gave evidence of having suffered from dyslexia which, although overcome to some degree, still results in some residual disabilities. Such disabilities, together with her lack of experience, her unattractiveness to employers because of her medical history and her personal attributes such as a manner of speech no doubt reflecting the nature of her past employment (none of which, I hasten to say, I criticize in any way) must all militate against the likelihood of her obtaining such employment. The same observations might be made as to the possibility of her being employed as a shop assistant. Long periods of standing (with which the plaintiff could not cope) may often be incidents of that type of employment.
The general damages claimed by the plaintiff fall into the following categories:
(a) Loss of earning capacity, both past and future;
(b) Pain, suffering, loss of amenity of life and other non–economic loss;
(c) Future medical and dental treatment;
(d) Future physiotherapeutic treatment;
(e) Future pharmaceutical expenses;
(f) Future psychological counselling;
(g) Future domestic and nursing services.
I have already concluded that the plaintiff is left with very little residual earning capacity. The difficult question is not what was the earning capacity of the plaintiff prior to her accident but rather what was the extent to which that earning capacity would have been utilized by her were it not for her accident. I am satisfied that the plaintiff had a substantial earning capacity had she chosen to continuously apply herself to doing piece work in the fishing industry to the extent that such work was available to her. I accept the evidence from Mr Tierney as to present earnings on the part of workers at Petuna Seafoods. At the same time, I am satisfied that the plaintiff would not have utilized that capacity to anything approaching its full extent had the accident not intervened. This is not a case where it is possible to adopt any precise mathematical method in assessing this head of damage. The income tax returns of the plaintiff for the years prior to 1 July 1988 were not in evidence, they apparently not being available. If information was available from the Department of Social Security as to the plaintiff's earnings from time to time whilst in receipt of a Social Security benefit, then such material was not put before me. No precise evidence as to earnings was put before me. The plaintiff gave some evidence to which I have already referred as to what she earned approximately at various times. Some broad inferences to which I have already referred may be drawn from her continuing entitlement to a benefit after she and her former husband parted, but only by way of indicating what her maximum earnings might have been.
It must not be overlooked that the plaintiff is a person who at some times has availed herself of her earning capacity to the full, and at other times, for various reasons, not availed herself of that capacity at all, or only to a very limited extent. The desire to live in northern New South Wales, the need to care for a young child and the desire to renovate the house acquired by her and her then husband are examples of reasons for not utilizing her earning capacity. The plaintiff is not to be criticized for that, but her past history is relevant in attempting to form some estimate as to the extent to which she would have availed herself of her earning capacity had the accident not intervened. Her entitlement to a social security benefit, providing a secure base income, may well have been a reason for her not fully utilizing her earning capacity. Had the accident not intervened, she might well have re–married or entered into a permanent relationship. In such event, the resultant cessation of being entitled to a social security benefit might have provided an incentive to her to utilize her earning capacity to a greater degree. On the other hand, marriage or a permanent relationship might have reduced her incentive to earn income, although the experience with her first husband suggests otherwise. As the plaintiff aged, her desire to engage in hard, physical work for long hours might have diminished. These are but examples of the multitude of factors bearing upon the question as to the extent to which the plaintiff might have been expected to utilize her earning capacity in the future but for the accident. Some are indicative of a greater utilization than occurred immediately prior to the accident. Others are indicative of the level of utilization remaining the same or diminishing. However I proceed upon the basis that at least since separation from her husband the plaintiff has utilized her earlier capacity to a small degree only and that that pattern would have been unlikely to change significantly whilst the plaintiff remained in her current domestic circumstances which include the receipt of a pension.
In those circumstances, I consider that it is impossible to adopt any form of mathematical approach to the assessment of the plaintiff's damages for lost earning capacity. I can do nothing other than to fix a lump sum, inadequate though that method may be because of the many unknown factors. I consider an appropriate sum under this head to be in the region of $100,000.00. That amount takes into account the usual contingencies in addition to the factors which I have mentioned.
The plaintiff's damages for non–economic loss ought to be substantial. The most significant aspect of the plaintiff's disability is the pain, to which I have already referred. Whilst psychological counselling may better enable the plaintiff to cope with her pain, it may well be with her for the rest of her life. She was aged 28 at the time of her accident so that the pain may well be with her for many years. That significant disability has severely curtailed her life style in ways other than those directly impacting upon ability to earn income from her employment. Many physical activities previously open to her and engaged in by her are now closed to her or curtailed. She no longer engages in various sporting pursuits. She finds sexual intercourse difficult. Her self–esteem has been significantly lowered. She has suffered some scarring. She has problems with her teeth. A sum in the region of $30,000.00 would be appropriate.
The plaintiff uses a number of prescription drugs to assist in managing her pain. The obtaining of a prescription requires her to see her general practitioner at a present cost of approximately $26.00 per visit. There may well be other occasions when she will need to see a general practitioner. Future resort to specialist medical practitioners is not indicated, although it may occur. It may be that the plaintiff will have future problems with her teeth as a result of the injuries which she suffered, and in particular there may be the loss of a molar requiring a prosthesis. I have no evidence as to cost. Travelling to and from appointments must be taken into account. In round figures, I would consider the sum of $3,500.00 to be appropriate for future medical and dental care, including travelling.
I accept the evidence that some future occasional physiotherapy is appropriate, although certainly not to the degree undergone by the plaintiff in the past. Some travelling costs would be incurred. A sum of $1,000.00 would be appropriate.
The plaintiff gave evidence of taking various forms of medication, namely Ducene, Indoril, Tryptanol and Panadeine Forte. It was agreed between the parties that the current cost of these drugs (in each case for 50 tablets) is as follows: Ducene $8.25; Indoril $9.30; Tryptanol $19.10; and Panadeine Forte $20.05. It was also agreed that the cost of Panadol, a non–prescription pain relieving drug, is $8.45 for 100 tablets. Tryptanol is a non–Valium based antidepressant drug which Mr Morgan described as quite a good one, and which constitutes very reasonable treatment for the plaintiff. Ducene is a trade name for Valium, intended to have a calming effect, and Panadeine Forte is a moderate type of analgesic mixture basically consisting of Panadol and Codeine. Mr Morgan considered that the use of Ducene, Tryptanol and Panadeine Forte were reasonable. Dr Maclaine–Cross considered it reasonable for the plaintiff to continue taking all four drugs, all being used for the treatment of chronic pain. With the exception of Tryptanol, all these drugs have a potential for addiction and in Dr Maclaine–Cross' view, ought to be used with great caution. The dosage ought to be strictly controlled and not escalated. All drugs are presently being prescribed by the plaintiff's general practitioner, Dr Gaggin. She considered that appropriate dosages would be about 20 tablets of Panadeine Forte per month and that a script of Indoril or Tryptanol would be sufficient for a period of six months. I infer from Dr Gaggin's evidence that Ducene would be required at about the same rate as Panadeine Forte. Whilst the plaintiff expressed a desire to reduce her reliance upon medication, she may not achieve that desire. Upon the basis of that evidence I consider $3,000.00 appropriate under this head.
The parties were agreed that the sum of $1,200.00 would be appropriate to allow in respect of future psychological counselling. There was no specific evidence of the need for future domestic assistance or nursing care. I attribute no specific amount to it but note that I will fix a lump sum for general damages in the light of the sums I have tentatively attributed to various heads of damage and that that lump sum will be rounded off upwards.
The various sums I have expressed as being appropriate as to each element of the plaintiff's general damages are intended to be tentative and indicative of the total sum appropriate to compensate the plaintiff by way of general damages. I conclude that a rounded off lump sum of $140,000.00 is appropriate for the plaintiff's general damages.
I turn to the question of special damages which fall into four categories:
(a)Amounts paid by way of scheduled benefits by the Motor Accidents Insurance Board (which the parties are agreed are recoverable as special damages) in the sum of $14,106.28.
(b)Moneys paid by the plaintiff to various acquaintances for the provision of care.
(c)The cost of the plaintiff undergoing an MRI scan and associated travelling expenses which the parties are agreed total $4,628.45.
(d)The cost of a lumbar roll and an elbow guard purchased by the plaintiff at a cost of $45.00 and the cost of attending a course on the Alexander technique in the sum of $90.00.
There are some difficulties with the second of those categories. The evidence is that moneys were paid to James Turner, Teresa Greave and Sharon Jones for the provision of domestic and other assistance to the plaintiff at times when her disabilities did not enable her to perform those tasks herself. There were some inconsistencies in the evidence. I do not feel able to conclude with any degree of confidence as to the precise amounts that were paid. I am satisfied that moneys were paid by the plaintiff for the provision of services required by her as a result of her disabilities. The witness Teresa Greave was mistaken in her evidence that she was employed from about February or March 1988. That employment commenced some months later. I accept that initially James Turner and then Teresa Greave were employed by the plaintiff to perform domestic services which the plaintiff was unable to perform as the result of her injuries. One or other was so employed for most of the calendar year 1988. The evidence does not satisfy me that each was paid in money or money's worth $50.00 or $60.00 each fortnight. It was somewhat less than that. I am satisfied that for most of 1989 Sharon Jones was similarly employed but I have the same reservations as to what she was paid. I am not satisfied that all the services provided by Sharon Jones were of a nature that the plaintiff could not perform them. To some extent they were provided so that the plaintiff was free to endeavour to earn income as a leadlighter. To that extent the expense is not recoverable from the defendant. In the result I am unable to find what precise amounts were paid by the plaintiff for the provision of domestic services which the plaintiff was unable to perform as the result of her injuries. The best I can do is to allow a lump sum, which I do in the sum of $2,500.00.
The plaintiff decided to undergo the MRI scan. I am not satisfied that the undergoing of such a scan was indicated by any medical reason. It appears that specialist medical advice was that it was not called for. Although the plaintiff ought not to be criticized for wishing to explore every avenue in an endeavour to ascertain the source of her pain, the plaintiff has not established that the defendant ought to pay the costs of the scan. I do not allow the amount of $4,628.45. I allow the sum of $45.00 in relation to the cost of the lumbar roll and elbow guard. That sum was reasonably incurred by the plaintiff in an attempt to alleviate pain caused by her injuries. The same applies to the sum of $90.00 paid for course on the Alexander technique.
It follows from these reasons that the plaintiff is entitled to recover damages as follows:
General damages $140,000.00
Special damages 16,741.28
$156,741.28
Less scheduled benefits paid by the Motor Accidents Insurance Board 14,106.28$142,635.00
There will be judgment for the plaintiff for $142,635.00.
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