| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : SAVIKER -v- LE CLUS [2002] WADC 213 CORAM : MARTINO DCJ HEARD : 1-4 OCTOBER 2002 DELIVERED : 11 OCTOBER 2002 FILE NO/S : CIV 2951 of 1995 BETWEEN : MELVYN SAVIKER Plaintiff
AND
KAREN LESLIE LE CLUS
Defendant
Catchwords: Negligence - Plaintiff falling over sign in walkway - Whether breach of duty of care owed by defendant - Damages - Personal injuries - Pre-existing condition
Legislation: Nil
Result: Plaintiff's claim dismissed - damages provisionally assessed
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Representation:
Counsel:
Plaintiff : Mr D L Jones
Defendant : Mr T Lampropoulos
Solicitors:
Plaintiff : John Rando & Co
Defendant : Julian Lentzner
Case(s) referred to in judgment(s):
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 75 ALJR 992
Case(s) also cited:
Cant v Fleay & Anor; unreported; FCt SCt of WA; Library No 960381; 18 July 1996
Gondoline Pty Ltd v Hansford [2002] WASCA 214
Jaensch v Coffey (1984) 155 CLR 549
Donoghue v Stevenson [1932] AC 562
Medlin v State Government Insurance Commission (1995) 127 ALR 180
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1 MARTINO DCJ: In July 1993 the plaintiff worked as a real estate salesman for Saviker Real Estate. The licensed real estate agent for that business was the plaintiff's former wife. The business premises of Saviker Real Estate were in a small shopping complex at 263 Walcott Street, North Perth. At the same time the defendant carried on a hair salon business trading as Karen's Hair Design in the same shopping complex. The two premises were next to each other. The entrance to each of the premises was from a brick paved arcade. There was an A-frame sign in the arcade outside the defendant's premises advertising her business. On 14 July 1993 the plaintiff fell over that sign.
2 The plaintiff claims he was injured in that fall and that his injuries were caused by negligence of the defendant. The defendant denies liability and contends that any injuries suffered by the plaintiff were caused or contributed to by the plaintiff's negligence in failing to keep a proper look out. The defendant also contends that the plaintiff had a pre-existing lower back condition which was congenital or caused by a speedway accident or by an accident when the plaintiff fell at a house he was inspecting in the course of his work as a real estate salesman.
The accident 3 The defendant commenced carrying on her business from the premises in Walcott Street in March 1993. Her father made for her an A-frame sign to advertise her business. The sign was approximately four foot high and three foot wide. It was a steel frame with a chalkboard over it. The defendant's evidence was that she commenced using the sign approximately one to two weeks after she moved into the premises. The plaintiff's evidence was that he had not noticed the sign until the day of the accident. The only other evidence on this issue was from the plaintiff's wife, Mrs Jeane-Marie Saviker, whose evidence was that she had seen the sign before the day of the accident but could not say for how long the sign had been present. I accept the defendant's evidence on this issue. The fact that the sign was outside the defendant's premises before the day of the accident is confirmed by Mrs Saviker's evidence and although the plaintiff did not notice the sign before the day of the accident I accept that the defendant's evidence on this issue is accurate. 4 On the day of the accident the plaintiff visited the defendant in her premises and spoke to her. The plaintiff could not recall what it was that he spoke to her about. The defendant recalled that the plaintiff asked her the identity of a man who had recently been into her salon.
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5 The plaintiff's evidence was that as he was leaving the defendant's premises the defendant and the plaintiff spoke again to each other. He could not recall who spoke first. The plaintiff stopped in the doorway of the defendant's salon and turned to face back into the shop and continue the conversation. When the conversation ceased he was by the doorframe and he put one foot back. The foot that he put back got caught up in the defendant's sign. The plaintiff thought his heel got hooked underneath the bottom of the metal sign. As he lost balance the sign folded and the plaintiff fell over with it. In his evidence-in-chief the plaintiff said that he stepped back with his left foot. In cross-examination he said that he stepped back with his right foot.
6 The defendant's evidence was that the plaintiff entered her salon and spoke to her for a couple of minutes and then went out. The plaintiff was still talking and the defendant was facing him as he commenced to leave. The defendant said that the plaintiff exited backwards and she looked back to her client and then heard the noise of the plaintiff falling over the sign. 7 The defendant recalled that she had two customers in her salon at the time. The plaintiff's evidence was that there were no other people in the salon. No evidence was called from any other person as to the precise circumstances of the accident. 8 Although there are some variations between the evidence of the plaintiff and the defendant as to the lead up to the accident, I do not regard the variations as of any significance. I find that once the plaintiff had finished his conversation with the defendant he commenced to exit the salon by stepping backwards into the arcade with one foot. In my view it is more likely that he stepped back with his right foot because it was his intention to return to his own business premises at Saviker Real Estate. Those premises were to the plaintiff's right. As he placed his right foot out into the arcade his foot came into contact with the defendant's sign causing the plaintiff to fall. 9 The plaintiff's evidence was that the defendant's sign was located up against the door post of the door to the defendant's premises, immediately to the right of the door as a person faced the door, that is on the side of the door closest to Saviker Real Estate. This evidence was based not on observation but on reconstruction because he had not noticed the sign before he fell and when he fell the sign also fell.
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10 The defendant placed the sign outside her salon every morning and placed it inside her salon when she was closing up at the end of each day. Her evidence was that her practice was not to place the sign immediately up against the doorframe but to place it some distance away from the doorframe. She could not be precise as to how far from the doorway the sign was on the day of the accident and agreed in cross-examination that the distance could have been between six inches to two and a half feet.
11 The plaintiff's wife had not noticed the precise location of the sign before the accident. In re-examination her evidence was that the sign appeared to be at the doorway because after the accident she noticed that the sign had fallen flat and was at the edge of the doorway. In my view the location of the sign after the fall does not assist in determining its location before the fall because I do not know what forces were applied to the sign as Mr Saviker fell. 12 The plaintiff attempted to describe and demonstrate how he exited the salon and came to fall on the sign but, as he said in cross-examination, he did not remember every action. I am not surprised that he could not do so. It is very difficult for any person to recall their precise movements and in this case that everyday difficulty is compounded by the fact that the accident occurred nine years ago. For that reason I find that the plaintiff cannot recall precisely where it was that he placed his right foot in the arcade outside the defendant's salon. I also do not accept that the plaintiff attempted to swivel to his left once his foot was in the arcade. The plaintiff was intending to move to his right, not his left. There must have been some movement of the plaintiff's foot to the plaintiff's right as he stepped backwards. If he had gone straight backwards his foot would not have touched the sign. I am unable to tell from the plaintiff's evidence how far to the right he moved his right foot as he placed it behind him.
Liability for the fall 13 The particulars of negligence alleged by the plaintiff are as follows:
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14 The defendant owed a duty of care to the plaintiff. The content of that duty of care to a person such as the plaintiff who was walking from her salon out into the arcade was to exercise reasonable care to prevent such a person from suffering injury from foreseeable risks of injury. There was no suggestion by the plaintiff himself or by any evidence led from the plaintiff that there was inadequate lighting in either the defendant's salon or in the arcade. In my view the sign would have been obvious to the plaintiff if he had taken the ordinary precaution of walking forwards out of the defendant's salon. As was said by Callinan J in Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 75 ALJR 992 at [355]: "It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this." 15 For reasons I have expressed I have not been able to find precisely where in relation to the doorway to the salon the sign was placed. I accept the defendant's evidence that she did not place the sign right up against the doorway because that would make it hard for a customer to get into the salon. I conclude from that evidence and from the facts that the plaintiff had no difficulty in entering the salon and did not notice the sign when he entered the salon that the sign was not immediately against the doorway. 16 I find that there has been no breach of the duty of care owed by the defendant to the plaintiff in her placing of the sign in the arcade outside her salon or in failing to warn the plaintiff of the location of the sign. 17 In my view the plaintiff's fall was not caused by any breach of a duty of care owed by the defendant to the plaintiff but was caused by the plaintiff's failure to exercise reasonable care for his own safety in exiting the defendant's salon by stepping backwards rather than exercising basic care for his own safety by walking in a forward direction.
Provisional assessment of damages 18 I will assess the damages suffered by the plaintiff, in case I am wrong in my conclusions as to liability.
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19 In the fall the plaintiff landed on his back, predominantly his lower back. Immediately after the fall he felt winded, embarrassed by the loud noise caused by the fall and indignant. The plaintiff attended on his general practitioner, Dr Michael Beinart, on the day after the accident. He told Dr Beinart of his fall over the sign and that he was suffering pain in his right buttock radiating down his right leg.
20 The plaintiff had been a patient of Dr Beinart's practice since 1976. It is appropriate for me to set out some of the history of his treatment at that surgery. On 27 September 1985 the plaintiff attended at the surgery and reported central back pain and a painful neck. The entry made by the medical practitioner in the notes refers to the Speedway. The plaintiff had raced cars at the Speedway in the early 1970's and was involved in a motor vehicle accident when racing cars. The entry made on 27 September 1985 also refers to the plaintiff wishing to receive chiropractic treatment. 21 On 3 May 1986 the plaintiff attended the surgery and reported further trouble with his left arm, shoulder and neck and again told the medical practitioner that he would be seeking chiropractic treatment. 22 On 8 December 1988 the plaintiff attended the surgery and reported that he had been hit from behind from a station wagon. He reported that he had a sore left shoulder and neck. Examination revealed tenderness in the low cervical spine and he was prescribed medication. On 20 December 1988 the plaintiff attended the surgery and reported that he was seeing a chiropractor three times a week. It is possible that the entry for that day also refers to the plaintiff being depressed. 23 On 16 January 1989 the plaintiff informed his medical practitioner that he was still not right, was suffering persistent nausea, had problems with sleep and back troubles with his right arm tingling. The plaintiff requested a referral to an orthopaedic surgeon. 24 On 29 May 1989 the plaintiff attended the surgery and reported that he was much improved. He had been seen by Mr F B Webb, orthopaedic surgeon, and was still attending a chiropractor on occasions. 25 The plaintiff attended the surgery on 21 February 1992 and reported that he was very upset about his broken marriage. He was prescribed sleeping tablets. 26 On 11 June 1993 the plaintiff attended the surgery. The note made by the medical practitioner refers to back pain, old injury and to the plaintiff being prescribed medication for his back pain. A note was made
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by a medical practitioner on 14 June 1993 which is probably a commentary or summary of an x-ray report. It refers to the plaintiff's lumbosacral spine having an old compressive injury to L3-4, L3, L4 and L5 and a crush irregulatory of the end plates with degenerative osteoarthritis in the facet joints. 27 Although the notes at Dr Beinart's surgery do not refer to a fall in or around May 1993 the plaintiff did suffer a fall at that time. In the course of his work as a real estate salesman he had attended a house. While inspecting those premises he tripped on a step and fell onto lawn. He felt discomfort in his back and legs and attended on Dr Beinart's surgery. 28 On 23 June 1993 the plaintiff attended upon Dr Beinart. Dr Beinart's note records that the plaintiff was emotional, was suffering chronic back pain and was unable to look for work. He had social problems. His flexion was to above his knees. 29 Dr Beinart issued a medical certificate stating that the plaintiff was unfit to work from 29 May 1993 to 10 July 1993 because of mechanical back pain. Dr Beinart's notes also refer to the plaintiff having difficulties with his ex-wife in relation to their children. 30 On 25 June 1993 the plaintiff attended upon Dr Beinart and reported pain down his right leg which increased on sneezing and his lumbar spine was rigid. Dr Beinart diagnosed the plaintiff as suffering from right sciatica. Dr Beinart referred the plaintiff for a CAT scan. The plaintiff saw Dr Beinart again on 26 June 1983. Dr Beinart prescribed a muscle relaxant and painkillers. His CAT scan confirmed that he had an L5, S1 disc protrusion with impingement of the nerve root at L5 resulting in pain extending down his leg. Dr Beinart advised the plaintiff to rest in bed. 31 On 28 June 1993 the plaintiff saw Dr Beinart. Dr Beinart noted some improvement. Dr Beinart prescribed rest together with Valium as a muscle relaxant and Panadeine Forte as an analgesic. Dr Beinart next saw the plaintiff on 5 July 1993. The plaintiff's condition was relatively unchanged and he was referred for chiropractic treatment. Dr Beinart next saw the plaintiff on 12 July 1993. Dr Beinart again noted some improvement in the plaintiff's condition and that he was more positive in his attitude. Dr Beinart noted numbness in the plaintiff's tailbone. There was no leg pain on this occasion. The plaintiff appeared to be distressed but was able to bend to his knees. Dr Beinart advised the plaintiff to take Valium as necessary.
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32 The next occasion that Dr Beinart saw the plaintiff was on 15 July 1993, after his fall outside the defendant's salon. Dr Beinart's notes refer to another tumble with pain again in the right buttock and right calf pain. Dr Beinart referred the plaintiff for an x-ray which showed no recent bony fracture.
33 The plaintiff has remained under the care of Dr Beinart and has seen a number of specialists. In January 1994 Dr Beinart referred the plaintiff to Dr Ken McGuire at Royal Perth Rehabilitation Hospital for an exercise program to assist the plaintiff in controlling his pain. The exercise program arranged by Dr McGuire was not successful. Dr McGuire referred the plaintiff to Dr David Perlman, a specialist in pain management at Royal Perth Rehabilitation Hospital. Dr Perlman arranged a number of types of treatment on the plaintiff which were not sufficiently successful in reducing his pain. The plaintiff took morphine tablets for the control of his pain but the plaintiff found the tablets caused drowsiness and fatigue. On 14 April 1997 Dr Perlman placed an intrathecal pump on the plaintiff. The pump administers morphine into the cerebrospinal fluid in the spinal cord. The delivery of morphine from this pump has been successful in managing the plaintiff's pain. The pump has been replaced once at the end of the battery life of the original pump. It will need to be replaced again but it is likely that it will be replaced by a non-battery powered unit which will last for several decades. There have been significant side effects from the use of a morphine pump. The delivery of the morphine in this way has resulted in low testosterone levels being produced by the plaintiff's body. The consequences of low testosterone levels are loss of libido, loss of erectile function, reduction in strength, muscle bulk and bone metabolism. The plaintiff requires testosterone injections every three to four weeks. 34 Dr Perlman described the morphine doses that the plaintiff is receiving as being quite low. While it is not possible to be absolutely dogmatic about what consequences are going to be produced from a certain level of morphine dosage, it is Dr Perlman's opinion that the likelihood is that the dosage that the plaintiff is receiving will not produce a great deal of problems in memory. In large doses morphine can have long-term cognitive effects on memory and in larger doses than the plaintiff is receiving it can produce drowsiness, loss of alertness, somnolence and have an effect on long-term memory. In Dr Perlman's opinion that should not be a very significant factor at the dosage the plaintiff is receiving.
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35 On 20 June 1994 the plaintiff saw Dr Pamela Levit, psychiatrist. Dr Beinart referred the plaintiff to Dr Levit. Dr Levit assessed the plaintiff as being severely depressed. In her opinion the depression appeared to have commenced early in 1992, having been precipitated by multiple significant psychosocial stresses and losses and perpetuated by ongoing psychosocial problems and a combination of medical problems including a viral illness in June 1992 and two falls in July 1993 resulting in chronic back pain and limited mobility. The plaintiff remained under the care of Dr Levit until 11 December 1997 when he decided that he no longer wished to receive treatment. In the course of his treatment under Dr Levit the plaintiff only responded partially to treatment. Ongoing care for the plaintiff's depression has been provided by Dr Beinart.
36 The plaintiff recently saw two psychiatrists. He saw the psychiatrists at the request of the solicitors for the parties in this action. The opinion of those psychiatrists is markedly different. 37 The plaintiff's solicitors arranged for the plaintiff to see Dr John Booth on 27 March 2002. At that time the plaintiff was working 32 hours a week as a telemarketer. In Dr Booth's opinion the plaintiff is suffering from two psychiatric disorders: 38 These disorders affect every aspect of his waking life. The morphine pump produces a mental state characterised by forgetfulness and "stickiness" to the quality of his thinking. By that Dr Booth means an inability to keep track of a subject. The depressive disorder affects the plaintiff's general sociability, energy levels, humour, ease to anger, irritability, outlook on life and similar matters. Dr Booth attributes the major cause of the plaintiff's depression as being the fall on 14 July 1993. Dr Booth was surprised that the plaintiff is able to function at all in sales by reason of his psychiatric conditions and expressed the opinion that he probably has a very understanding management because his behaviour at work would be different from others and it may well be that his sales performance is not as good. 39 The defendant's solicitors arranged for Dr Peter McCarthy to see the plaintiff on 7 and 13 March 2002. In Dr McCarthy's opinion it is probable that between 1994 and 1997 the plaintiff suffered from a major depressive disorder of moderate severity. That major depressive disorder is in full
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remission. The plaintiff has some degree of anxiety and depression but not enough to be diagnosed as currently suffering from a depressive disorder. Dr McCarthy does not consider that the plaintiff has any significant psychiatric disorder and in his opinion morphine has not blunted his thought processes so as to make the plaintiff unable to give a history. 40 Mr Barrie Slinger, spinal surgeon, saw the plaintiff on 1 November 1994 and on 19 June 1995. The first review was at the request of MLC Life Limited. The second review was at the request of the plaintiff's former solicitors. Mr Slinger diagnosed the plaintiff as having sustained soft tissue injuries in the two falls in 1993. The plaintiff informed Mr Slinger that the first fall was minor and caused only minor discomfort until the second fall in July 1993. On the basis of that history Mr Slinger expressed the opinion that it would appear that the second accident of July 1993 was responsible for the plaintiff's symptoms and inability to work. In Mr Slinger's opinion the previously asymptomatic degenerative changes in the plaintiff's spine were rendered symptomatic by that fall and he may well have continued asymptomatic indefinitely. 41 On 26 September 2001 Mr John Crockett, orthopaedic surgeon, saw the plaintiff at the request of the plaintiff's solicitors. Mr Crockett wrote a report dated 28 September 2001. 42 Mr Crockett obtained from the plaintiff a history that he did have some back trouble as a teenager which was diagnosed as Scheuermann's disease. Scheuermann's disease is a developmental abnormality in the bone which is often accompanied by discomfort during teenage years which generally clears up but a radiological trace is left. Very occasionally adults have some trouble as a result of that teenage problem. In his report Mr Crockett expressed the opinion that the plaintiff suffered a significant increase in the level of his low back discomfort as a result of his fall on 14 July 1993. Prior to that fall the plaintiff had developed fairly marked degenerative changes in his lumbar spine as a result of Scheuermann's disease. These pre-existing degenerative changes significantly lowered the plaintiff's threshold for injury. The fall prior to his fall on 14 July 1993 sounded to Mr Crockett as a minor exacerbation on the history provided to him. In Mr Crockett's opinion the plaintiff is fit for work in real estate sales with limitations on sitting, standing and driving. The plaintiff's chances in the open market have been reduced but overall in a suitable job his working life has not been shortened.
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43 In cross-examination Mr Crockett was informed of the plaintiff's history prior to 14 July 1993 particularly the development of sciatica in 1993. In Mr Crockett's opinion that history is significant and the fall in May 1993 was a significant factor in the development of the plaintiff's symptoms.
44 The evidence of both the plaintiff and his wife was that prior to the fall on 14 July 1993 the plaintiff was very active and that the incident in May 1993 did not cause significant symptoms. However, on the basis of the notes of Dr Beinart's practice, I conclude that the recollection of the plaintiff and his wife as to the course of the plaintiff's symptoms in 1993 is not correct. I find that the plaintiff did suffer significant back symptoms and sciatica following that fall. Those symptoms had improved by 12 July 1993 when Dr Beinart saw the plaintiff and leg pain had gone but they remained significant. 45 I conclude that the plaintiff had degeneration in his spine prior to May 1993. He had occasional symptoms as a result of incidents prior to 1993 which required treatment from time to time but which were not disabling. Both the fall in May 1993 and the fall on 14 July 1993 contributed to the development of symptoms in the plaintiff's spine. I find that the fall in May 1993 contributed 30 per cent and the fall on 14 July 1993 contributed 70 per cent. 46 The plaintiff now works as a telemarketer for Allegiance Marketing Pty Ltd. A telemarketer makes sales by telephone. The plaintiff works from Allegiance Marketing premises. He is provided with headphones and a mouthpiece so that he does not need to use his hands to hold a hand piece. He works at a desk and is able to move from a sitting to a standing position. The state manager of Allegiance Marketing, Ms Jayne Brown, described the plaintiff's work performance as above average. It is clear from Ms Brown's evidence and from the records of Allegiance Marketing which show the plaintiff's sales that he is effective as a telemarketer. I accept that the plaintiff has a significant level of back discomfort and that he is working to the best of his ability. The plaintiff works Mondays, Tuesdays, Thursdays and Fridays and finds it necessary not to work on Wednesdays due to his level of back pain. 47 I referred earlier to the opinions of Dr Booth and Dr McCarthy. I prefer the evidence of Dr McCarthy to that of Dr Booth. I do so for two reasons. First in relation to morphine toxicity it is my view that the evidence of Dr Perlman is of significance. Dr Perlman is a specialist in the management of pain and is familiar with morphine and its side effects.
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Dr Perlman has been treating the plaintiff for the management of his pain. In Dr Perlman's opinion the level of the plaintiff's morphine dosage is unlikely to result in significant cognitive impairment. I do not accept therefore Dr Booth's opinion that the plaintiff is suffering cognitive impairment as a result of morphine toxicity. The second reason why I prefer the evidence of Dr McCarthy is the evidence from Ms Brown as to the plaintiff's performance as a telemarketer. The level of his performance is not consistent with the significant psychiatric illnesses diagnosed by Dr Booth. I conclude therefore that the plaintiff has in the past suffered from a major depressive disorder caused by his back pain but that disorder is presently in remission and the plaintiff is not presently suffering from significant depressive symptoms. 48 The plaintiff has not lodged a tax return since 1992. It is therefore very difficult to assess the loss of earnings and loss of earning capacity suffered by him. His taxable income in the year ended 30 June 1992 was $7,814. Since 1993 the plaintiff has earned income. At times his earnings have been significant. For the 15 month period ended 30 September 1996 he was paid $63,110 for consultancy and telemarketing services. In the year ended 30 June 1997 he earned $2,960 from the sale of houses for J-Corp Pty Ltd and $3,640 from the Australian Kidney Foundation for telemarketing. In the year ended 30 June 1998 the plaintiff earned $12,779 from the Australian Kidney Foundation and $40,678 from Rich & Company for whom he worked as a real estate salesman. In the year ended 30 June 2002 the plaintiff earned $39,526 with Allegiance Marketing. All these figures are before the deduction of tax. 49 Both counsel for the plaintiff and counsel for the defendant submitted that this was not a case in which there could be any precise calculation of the plaintiff's loss of earning capacity. For this reason counsel for the plaintiff did not provide me with any schedule of economic loss as in his submission such a schedule would not assist me. Both counsel submitted that the loss, both past and future, should be assessed on a global basis. Counsel for the plaintiff submitted that the loss is large. Counsel for the defendant submitted that the loss is small. It is clear in my view that the plaintiff has suffered a restriction in his capacity to work as a result of his back pain and that the back pain is presently productive of economic loss. If the plaintiff were not restricted by back pain he would now be working at least 40 hours a week and probably some greater hours taking advantage of opportunities to work overtime. However it is not clear of the extent to which in the nine years since the plaintiff developed back pain his back pain has been productive of any economic loss. His earnings prior to the falls seem to have been
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modest. Another factor which it is necessary to bear in mind in considering the plaintiff's future loss of earning capacity is that the plaintiff became bankrupt some four years ago and so has no assets. He needs therefore to continue working for as long as possible. In his position as a telemarketer it is possible to work for as long as a person is effective in making sales. Ms Brown is aware of a person who retired recently from another office of Allegiance Marketing at the age of 94. The plaintiff is presently aged 62. I conclude that it is likely that the plaintiff would have worked to age 70. I assess the plaintiff's past loss at $40,000 inclusive of interest and his future loss at $50,000. For the reasons I have expressed earlier 70 per cent of that loss is attributable to the fall on 14 July 1993. 50 The plaintiff has suffered significantly as a result of the back pain caused by the falls. The level of pain was high requiring the morphine pump which has been effective in reducing his pain but which has produced distressing side effects including loss of libido and loss of energy which have been partially improved by testosterone injections. Prior to 1993 the plaintiff lived an active life. He is now confined to substantially sedentary activities. I assess the plaintiff's general damages from the fall on 14 July 1993 at $40,000. 51 The parties agreed that as a result of his disabilities the plaintiff has incurred expenses for medical treatment and pharmaceuticals totalling $16,807.82 and that he will require treatment in the future at a cost of $20,000. I assess special damages at $11,765 and future treatment costs at $14,000. 52 It is unclear from the agreement between the parties whether the plaintiff has paid any of the special damages. If I were making an award I would clarify the issue to ascertain whether interest should be awarded on special damages. 53 In summary therefore my provisional assessment of damages is: General damages $40,000.00 Past loss of earning capacity $28.000.00 Future loss of earning capacity $35,000.00 Special damages $11,765.00 Future treatment costs $14,000.00 Total$128,765.00
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