| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : SCULLY -v- ROBERTS [2003] WADC 42 CORAM : VIOL DCJ HEARD : 16 JULY, 30 OCTOBER & 12 NOVEMBER 2001, 18 & 19 NOVEMBER 2002 DELIVERED : 5 MARCH 2003 FILE NO/S : CIV 706 of 2000 BETWEEN : TERRANCE JOHN SCULLY Plaintiff
AND
RONALD ROBERTS
Defendant
Catchwords: Motor vehicle - Assessment of damages - Injuries to cervical spine and other areas - Claims of loss of earning capacity, both past and future - Whether work accident affected work capacity - Turns on own facts
Legislation: Motor Vehicle (Third Party Insurance) Act 1943 (as amended)
Result: Total award $180,875.93, including general damages award of $30,700
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Representation:
Counsel:
Plaintiff : Mr R J Butcher
Defendant : Mr J G Staude
Solicitors:
Plaintiff : Butcher Paull & Calder
Defendant : John G Staude
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 VIOL DCJ: The plaintiff, who is now aged 50 years old, was born on 24 April 1952.
2 The plaintiff was involved in a motor vehicle accident on 12 June 1998 ("the motor vehicle accident"). The defendant has admitted liability for such accident. The plaintiff alleges that, as a result of the accident, he sustained the following injuries: 1. An injury to the left ear resulting in hyperacusis; 2. An injury to the neck and cervical spine; 3. Consequential to his injuries, depression and anxiety; and 4. Horner's syndrome of the left eye. 3 As a result of the accident, it is said by the plaintiff that he attended a number of medical practitioners and has suffered a number of continuing and permanent disabilities. These are pleaded in par 4 of the statement of claim ie.: "(a) Hearing loss and noise intolerance; (b) Loss of balance; (c) Jaw pain; (d) Neck pain; (e) Restricted neck movement; (f) Weakness of the left arm; (g) Nausea; (h) Disturbed sleep; (i) Difficulty sitting, standing or sustaining physical activity for long periods; (j) A need to take medications; (k) Frustration and anxiety; and (l) Blurred vision in the left eye." 4 It is said by the plaintiff that, at the time of the accident, he contracted his services as a building consultant to West Coast
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Building Company. The plaintiff then had a building company known as Pathfinder Building & Consultancy Pty Ltd. It is said that, as a consequence of the accident, the plaintiff was forced to cease work as a building consultant and is now restricted in the work that he can carry out. 5 In its defence, the defendant denies the allegations as to the sequelae of the accident and has pleaded, in par 4 of the amended defence, that if the plaintiff is or has been incapacitated for work to any extent (which is denied), then these result from pre-existing symptoms and disabilities in his shoulders which are unrelated to the motor vehicle accident. Alternatively, the defendant has pleaded, in par 5 of the amended defence, that if the plaintiff is or has been incapacitated for work to any extent since 6 August 2001, such incapacity has been caused by a low back injury sustained by the plaintiff at work on that date ("the work accident") and not by reason of the matters complained of in the statement of claim. 6 It can be seen that there are a number of matters requiring determination in the assessment of damages to which the plaintiff may be entitled as a result of the motor vehicle accident. One of the questions, which involved a considerable amount of evidence, was the question of the plaintiff's ability to work and its relationship to the motor vehicle accident. It is necessary, therefore, to consider the evidence in this case in a reasonable amount of detail. 7 The plaintiff began his evidence on 16 July 2001. He is now almost 51 years old and has been married twice. The first time was in 1972 - there were four daughters by that marriage; the second marriage was in 1993 - there are no children of this marriage, which is still continuing. His second wife had three children and there is one foster child. At the moment, of all these various children, one step-daughter aged 13 and a foster child aged 14 are living with him and his wife. They moved to their current address in late 1999 or early 2000. The plaintiff continued school until Year 11 and then went to the Commonwealth Public Service where he did clerical work. After a time, he decided to work outdoors. He did an apprenticeship in plumbing and then became self-employed as a plumbing contractor throughout Canberra for approximately six years until 1979. He and his wife then relocated to Perth and he worked for a boat building company known as Precision Marine. He then became a project manager for a company, Fletcher Watts, who were commercial builders. He was known as a "site supervisor/project manager". The plaintiff described the work as a site supervisor as a person who advises subcontractors onsite as to how to perform their duties, building design knowledge being necessary. The site supervisor is basically the builder's
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representative onsite, dealing with a multiplicity of trades. A project manager, he said, would go one step further by dealing directly with tenders coming in and prices on projects from subcontractors, and selecting the appropriate subcontractor. A project manager is thus higher in the hierarchy to a site supervisor. He worked for Fletcher Watts for two years and, in 1982, set up his own building business, Summerland Constructions. He ran the business, but also worked on the tools and equipment. Ultimately, because a creditor was seeking the payment of some funds owing, the plaintiff declared himself bankrupt and then was employed with a company known as Sabimo. They were involved with big projects in Adelaide and he worked there as a supervisor/site manager and project manager. He did parts of each of these jobs. The average cost of the projects was $4M to $7M, and involved high rise buildings and TAFE colleges. Quite often, he would be in charge of the site, although sometimes, there would be an engineer above him. The engineer would be onsite 30 per cent of the time, with the plaintiff being in charge of the site some 70 per cent of the time. 8 On 20 February 1988, the plaintiff was working on a Saturday doing some rigging, when he let go of some steel when someone called out to him and it struck him in the spine in the area of L3 and L4. As a result, he had a laminectomy. The plaintiff appeared to have gone back to work some time during 1988, but the work ran out in December 1988 and he and his wife relocated back to Perth. He was then employed as a project manager for Brutan Developments for possibly 12 months and, ultimately, he finished with them and, at the same time approximately, his wife left him. He was left with the custody of the three girls and he looked after them until he eventually got back into the workforce during 1992 and 1993. He had several jobs once again in the supervisory area and was also dealing with engineers, and felt that he was on an equal footing to them onsite at that time. About 1997, he finished working and his salary then, he thought, was about $1,300 per fortnight. He then set up a business known as Pathfinder Building & Consultancy, which he ran from home. He was the sole employee of that company and he supervised projects and oversaw supervisors, being paid $1,300 per week. The main work involved projects at the University of Western Australia and he worked mainly for West Coast Builders as a construction manager. He physically went to different construction sites and inspected those sites and what work had to be done by various trades, and ensured that the supervisors properly oversaw the work of subcontractors. He attended meetings with architects. He was involved in climbing on roofs by the means of ladders and on scaffolding, climbing over reinforcing steel
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before the concrete floors were laid. He has travelled between different projects anywhere between Midland and Fremantle. He also supervised some projects in Cairns and other places within Western Australia. He purchased some office equipment, a computer and a vehicle, and he did so by means of loans. The loan for the vehicle was $33,000 and he also borrowed an amount in the region of $4,000 to obtain computers (see Exhibit A and Exhibit B). His company would receive $1,300 each week and then the company would pay him a wage of $800, the balance going towards running the company and paying the various debts and loans. There was rarely any residue left after this occurred. If there was, it would be used to purchase office equipment etc. There was a family trust and, at the end of the financial year, if any amounts of money were left over, they would be divided between trust members - this would be in the region of some $2,000 each year. 9 Before the accident, the plaintiff had had some nine operations on his shoulders as a result of playing football and the last of such operations was in 1998. These operations arose from recurrent dislocations in both shoulders. The right shoulder was worse than the left. He had a dislocation in his right shoulder approximately every 18 months and in the left shoulder every 2-1/2 years. While he was working for Sabimo, he also had a motorbike accident and had a knee reconstruction as a result of that. He suggested that, as a result of these various injuries, he had relatively few complications and/or incapacities. It is difficult to avoid the conclusion that these problems, as well as the laminectomy, caused the plaintiff some difficulties performing his work, even as a supervisor, although he continued to work as much as he could. 10 The plaintiff described the motor vehicle accident on 12 June 1998. He heard a car skidding towards him from behind, turned his neck to have a look, and his vehicle was struck from behind. He was in pain straight away and the vehicle went to the right slightly. He thought the pain was in the region of a scale of "six-out-of-ten". He went to his general practitioner, Dr Colin Lau, and was given anti-inflammatory tablets and referred to a physiotherapist. He had pain in the left side of his face down through his neck and into his left arm. He received a certificate to stay off work for two weeks and rested at home during that time with the symptoms becoming worse. He began to experience more pain in the head and, on the Monday after the accident, he in fact went back to work despite the certificate from Dr Lau. When he went back to work, his symptoms got worse and he had to take time off work and he began going to the physiotherapist. About two weeks later, during which time he had
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also seen Dr Lau, he thought he could not continue work because of his symptoms, and ceased work on 10 July 1998. 11 When he had been back at work, he found it difficult to climb ladders and driving, and he became nauseous during those activities. On one occasion at the Fremantle Fire Station, he was climbing a ladder onto the roof and was unable to do it. In addition, he had problems with nausea, his ear and his eye. His ears were very sensitive to certain noises and pitches and this began after the accident and seemed to build up between two months and three months thereafter, of getting worse and worse. His eye felt very puffy and he thought the vision out of it seemed "different to the right eye". He gave up work, he said, because he could not cope with what he was doing and then spent most of his time at home doing nothing. He was very disappointed in himself because he described himself as being, in theory, a workaholic, enjoying being in the workforce and outdoors. He continued to have the symptoms described, with the pain going down through the left arm and into his left thumb. 12 Because of these symptoms, which still continue today, they affect his driving, sitting for long periods or walking any distances. He suffered depression in the last half of 1998 and started to have nerve blocks from a pain specialist, Dr Finch. These made him feel better and he began to look at the possibility of going back to work. There was a person by the name of Phil Hoekstra doing some work on his kitchen and he began working for him as an officer administrator, being paid $500 per week. He was paid for three weeks and the plaintiff, on Hoekstra's request, invested $7,000 in the business for the purchasing of office equipment and a vehicle. His main job was to go through the books and sort out the finances and, after several weeks, he heard that Hoekstra was deeply in debt and the plaintiff then instigated Hoekstra's bankruptcy and he left the business, losing his $7,000. 13 On 11 May 1999, his brother-in-law rang him to see if he could move his Porsche which had no motor in it. He then went out to Midland on 12 May 1999, and there were a number of other men there and, together, they got the Porsche onto the trailer. He believed he did not do any great physical work there, he mainly just stood around and his role was as a driver. He then assisted to get it off, operating a winch and undertaking "general steerage". This, he said, involved unwinding the ratchet. They then proceeded to Bateman to get an engine for the Porsche and the engine lifter was put on the trailer and then the engine loader was pushed into the garage when the police turned up, thinking they were burgling the house. He ultimately assisted in tying the engine hoist down
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and took it to Morley, and was involved in unloading it. The whole operation took some five hours. He did no lifting. By the time he got home, he was totally exhausted and spent the next three days "flat on his back". He had headache, nausea, neck ache, arm ache and these had all increased. He tried to get some work after that up until the Christmas period without success and, in 2000, decided he would start up his own business as an earthmoving contractor. He bought a loader for $37,000 and leased a truck for $27,000 and advertised in local papers for work. It cost him approximately $900 a month for lease payments for the vehicles. The truck was not delivered for about a month, so, after three weeks, he hired a truck and work was coming in at that time. They sold their house and, with the money left after the mortgage, he was able to put a deposit on the trucks. The equity from the house was approximately $30,000. Some of the money was for debts on bankcards etc. He began to get a considerable amount of work and so much work came in that he could not cope with it himself and he had to employ people. He began work basically in March 2000 and was very tired, irritable at home and was still in pain. He had trouble operating machinery, turning around, and with the noises affecting his ear, headaches and lifting various pieces of equipment. Because he could not operate the loader properly, he rolled it over twice when he did not see things. On one occasion, he was driving in reverse and ran over the top of a tank which collapsed and, on the other occasion, he could not see a hole and the loader went into a hole and rolled onto its side. After about three weeks or four weeks, he employed one employee as a casual worker who worked up to 40 hours per week and he paid them $14 an hour, and then he employed a second employee three months later, one Mr Joe Pugliese; he was employed between 30 hours and 40 hours a week, being paid $14 per hour. After awhile, he employed a third person, in late 2000, one Mr Lindsay George, who was employed on the same basis as the others. Another casual had been put into the business this year at the rate of $14 an hour and Mr Joe Pugliese, he said at the earlier hearing, went up to $17 an hour because he is a more senior employee. 14 In early May 2001, a second truck and bobcat were purchased. 15 His wife did the book work in the business; he endeavoured to do all the quoting, which took up 50 per cent of the time, and to work with the employees onsite, doing physical work whenever he could. The quoting involved a lot of driving, sitting and talking to people and using the computer at night.
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16 In December 2000, the plaintiff redeemed his workers' compensation claim, receiving statutory allowances and a lump sum in the amount of $45,000. In addition, rehabilitation expenses were obtained. The plaintiff's weekly workers' compensation was on the basis of $800 a week and, from 10 July 1998 to 14 July 2000 and thereafter, at the rate of $322.80 until the redemption on 1 May 2000.
17 The plaintiff explained the work done by the employees and his own involvement. It was his view that, had he been able to work to his full capacity, the business would have been more profitable in that he would have been able to do the work of at least one of the people that he employed. He believed that he would have employed one full-time and one casual on this basis. As at July 2001, he said the business was running at a loss, not only because of the employment of the people mentioned, but also the purchase of further equipment. 18 The sort of work that he was involved in onsite was driving a bobcat, a truck, using a shovel, a jack hammer and general labouring type physical work. Generally speaking, he worked as long as he could and then got someone else to take over. He described how he did as much as he could and pushed himself and suffered dizzy spells. In the 12-month period after the accident, he had a problem of falling over without any warning - he described them as, rather than being dizzy spells, simply as falling over to one side without losing consciousness. During 1999 to 2000, there were several occasions where he felt as if he was going to fall over and only two such occasions in 1999 to 2000. These types of problems continued for the 12 months before July 2001, but he has not actually fallen over. There were five times when he actually fell over earlier on. 19 In the beginning, he drew a wage of $800 a week which was reduced to $500 a week in 2001. The plaintiff tendered various tax returns and other business documents. He gave details of the debts the company had at that time. The total was in the region of $65,000. 20 The plaintiff then described his symptoms as at July 2001. 21 He had a constant pain in his neck which became worse on certain activities, sitting for lengthy periods of time, for example, and the pain radiated into his head, in his ear and down through his left arm into his left thumb. He had difficulty sleeping. As far as his ear was concerned, he described it like someone trying to poke a hot needle into it, with certain noises aggravating it. He repeated the previous symptoms in his
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eyes and the nausea which he feels daily. He had headaches on the left hand side of his face down through his ear. He believes his work ability and his family life are the two things that have suffered most as a result of the accident. He told me that before the accident, he played pennant grade lawn bowls, went deep sea fishing regularly and golf on social occasions - none of these he has done since the accident. He does not believe he could be a site supervisor or project manager because he was not confident in climbing ladders to get up to roofs and in "tight" locations for inspections. He is not capable or confident enough of sitting down for long periods of time at meetings and thought that he would be careless or thoughtless operating machinery. He has difficulty driving trucks involving a lot of gears, which caused him a lot of neck and arm pain. 22 Mr Scully was cross-examined at some length. He could not recall having an x-ray for his back several months before the accident or complaining of symptoms with his back for that time. Neither his shoulder problems nor his back problems affected his ability to work. Roof inspections at UWA were three to four times a week. The climbing was done by the use of harnesses. He said the reason why he did not go back to West Coast Building Company when he felt well enough to go back to work in early 2000 was because that company had gone into receivership. He said that his job in the earthmoving business on the average day in summertime was 10 hours to 12 hours, half of which was quoting. At that time, he said that if he felt better, he would be able to operate more machinery, in addition to the quoting work. He felt that initially, in March 2000, he could run a one-man business of earthmoving and landscaping, but that his lack of physical strength has changed that outlook. As to the work that he was shown doing on a video, for example, shovelling sand in a truck, he was able to do this for short periods but the pain increased when he stopped and cooled down. He mentioned that the first two episodes of falling over involved him falling off a chair, and not in a situation where he was trying to stand up and lose his balance. He then mentioned that his falling to the left side could also happen if he stands in a hurry - that was after being referred to Dr Kernot's report of 7 September 2000, in which he spoke of the plaintiff standing in a hurry and falling over to his left side. He confirmed that since he had ceased taking his anti-depressant medication, the episodes of falling or losing his balance had diminished. He agreed that since March 2000, he had not required any medical treatment, except to be reviewed. He did not agree that he was a lot better at July 2001 than immediately following the accident - he said he used his work to cover the pain. He was cross-examined as to the activities of assisting with the transport of the
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Porsche car and engine and confirmed that it was the first time he had been out to do anything of that nature since the accident and, although he had little difficulty doing the activities, he felt very weak doing them. He agreed that the videos exhibited no sign of weakness or discomfort, and showed an ability to perform the tasks with ease, with full body movements. 23 The plaintiff resumed his evidence on 12 November 2001 and confirmed that, since giving that evidence, his company went into liquidation on Friday, 10 August 2001. He had sought advice from a company specialising in insolvency. He had planned to continue working as a sole trader, however, on 6 August 2001, he injured his back lifting a toolbox and spent two weeks in hospital. He had a variety of medications including for pain, constipation and ulcers. He said that in addition, of course, to the back pain from the accident in August 2001, he continued to have symptoms similar to those he had suffered before as a result of the motor vehicle accident. He had had a nerve block in his neck which resulted in the pain only going down to his elbow rather than to his left hand. 24 As a result of the plaintiff giving this evidence, the matter was adjourned for the defendant to consider the financial documents relating to the insolvency of the plaintiff's company. 25 The matter resumed again on 18 November 2002. The date of liquidation of the company was confirmed as 10 August 2001. The plaintiff confirmed that in order to commence the earthmoving business, he used the sum of $30,000 which came from the lump sum by way of workers' compensation settlement from HIH Insurance in the sum of $45,000. This sum of money was largely lost on the liquidation of the company. The plaintiff was of the view that the reason for the demise of the business was caused by the accident. His explanation was as follows: "Why?---Because of the accident - if I can go back a little bit. When I set the business up I thought I would be able to cope with running the business and operating the business. I found out that that wasn't the case after trying to do it for a short period of time and, therefore, had to put employees on, initially one employee then another employee. In putting more employees on I had to buy more equipment to bring in - pick up the income to be able to pay everyone but it just got to a point where I'd overdone things. I mean I could not - if I could have
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operated the machinery myself or, say, just one man, I would have saved wages, insurances for that period." (T175) 26 Having injured his back on 6 August 2001, the plaintiff spent two weeks in hospital and has been unable to obtain any employment - he sought employment in the project management type in the building industry. He then commenced a business in February/March 2002, known as TLS Building Maintenance, and advertised for domestic maintenance type work in local newspapers. This business was in existence as at 18 November 2002. The work involves minor household and garden maintenance which the plaintiff does himself and some larger jobs, for which he arranges subcontractors, the plaintiff getting a small percentage. Twenty-five per cent of his work is physical work and the other 75 per cent is organisational. He works 40 hours to 45 hours a week, with the books being done by his wife. At present, he is drawing about $600 per week from the business, which has risen from $400 a week when it started. 27 His condition has improved from November 2001 because he no longer falls over occasionally, although the other symptoms generally remain the same. His back pain is worse after the accident in August 2001. 28 He confirmed his view that he did not think he could return to his job as a project manager of the sort worked by him at West Coast Builders because it entailed a lot of climbing and he was not confident to do that. Further, he said, wearing a helmet made him susceptible to neck damage because of it sitting on top of his spine. He said the helmet made him some three inches taller and his judgment was affected by that in terms of walking around the site. He doubted whether, with his medical history, he would get a job as a project manager. 29 In cross-examination, the plaintiff agreed he was able to work as an earthmoving and landscaping contractor but said that, although some of the time he was working physically for 50 per cent of the time, there are occasions when he would be working 25 per cent of the time on machinery, with the rest being organisational. He felt that his earthmoving business which failed was different to other businesses of the same sort because of the size of his business. He said that he was not able to work operating a bobcat because he was unable to sit for long periods of time. He confirmed that, as a result of the August 1991 back injury, this has lessened his capacity to work as a bobcat operator. Notwithstanding that, he said that his business had not gone bankrupt
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because of the back injury, but because of the car accident. The jobs he applied for early in 2002 were mainly office administration jobs, without being onsite as much as his previous work as a project manager. He said that although his neck made it difficult for him to work in the earthmoving business, his back injury from August 1991 prevents him from driving a bobcat for more than five minutes or 10 minutes at a time, which is the reason why he is not doing anymore bobcat work. His present work is different from that of a building project manager because there is no climbing of ladders and similar work. 30 Significantly, the plaintiff said that he did not mention at an earlier time in his evidence about the problem with the weight of his helmet, but that he had seen Dr Galton-Fenzi since then, who explained to him how the weight of a helmet made one's neck susceptible to damage. He confirmed, however, that the reason why he would not take a job on a building site is because of the difficulty climbing around buildings and up ladders, rather than the wearing of a helmet. 31 The plaintiff confirmed that the reason why he worked as a plant operator after the accident was because he was sitting in a machine protected with a cage and that he worked because he had to, to stop the business collapsing. 32 I was able to observe the plaintiff giving evidence for a considerable time on a number of different occasions. He did not strike me as a person who would deliberately attempt to mislead me, but there were occasions upon which he attempted to rationalise his position in order to avoid any difficulties with his claim. He is a person who has a good work ethic and, notwithstanding physical difficulties from time to time whether caused by the accident or not, the plaintiff has continued to attempt to find work and/or to work to a reasonable degree. One area in which the plaintiff's evidence gave me some concern is that relating to the work shown in the videos, especially with the motor vehicle. The plaintiff's attempts to explain such work in the light of his alleged injuries cause me some concern. I will comment further on these matters in due course. 33 The plaintiff's wife, Mrs Anne Dorothy Scully, is a qualified professional counsellor, having qualified in 2002 after a three-year Degree. Prior to that, she was a secretary for about 20 years. She and the plaintiff were married in 1994 and have seven children between them, although none of their relationship. They had social activities together and went boating, but, apparently, the plaintiff did not play the sports suggested by him in his evidence, according to his wife. The plaintiff had
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several shoulder reconstructions and sometimes complained of pain in his back after he had been doing heavy lifting. He made no complaints of any pain in his neck or head. She described the plaintiff as being considerably affected by the motor vehicle accident and was exhausted, stiff and slow moving after he attempted the two week period of work. She said that he appeared to be in considerable pain and was depressed - he was put on anti-depressants for three months but weaned himself off them because he did not like taking tablets. There was a slow improvement which took about six months. She said that on the day he helped to transport the Porsche engine, he was very tired and when he got home, went straight to bed, saying he felt quite ill. He also had problems digging in the garden. 34 After the plaintiff started his landscape business, Mrs Scully said that he was sore and walking stiffly and was tired. She did the book work for the business up till September 2002, but she has been too busy to do any of the books since that time. She said that before the accident, the plaintiff used to play pennant bowls, but does not undertake that sort of activity because of his neck problems. In cross-examination, Mrs Scully was not able to describe with any particularity the amount of sport the plaintiff did before the accident. 35 Mrs Scully was an honest and straightforward witness. 36 The plaintiff's general practitioner is Dr Colin Wai Bun Lau. Dr Lau saw the plaintiff on the same evening of his accident, 12 June 1998, and diagnosed that in the accident, the plaintiff had suffered a moderate to severe soft tissue injury to his neck and left shoulder. By 13 August 1998, Dr Lau hoped that the plaintiff would be able to start some light duties within the next four weeks to six weeks, but believed it would be several months before the plaintiff would be able to undertake his usual work involving driving and the need to safely climb ladders. The very early onset of symptoms were considered by Dr Lau to be "unusual", and he felt that this may indicate that the prognosis was worse than normally could be expected with injuries of this type. In July 1998, the plaintiff complained of back pain which Dr Lau thought was related to the motor vehicle accident. Dr Lau also was told by the plaintiff that the pain in his neck was aggravated trying to clean his swimming pool and after driving into town. He also noticed, later in November 1998, that the plaintiff was complaining of a deaf sensation in his left ear. At that time, he noted that the plaintiff reported that he had fainted at a barbecue and Dr Lau thought it sounded like a hypotensive vaso vagal reaction ie. the result of very quickly changing posture, leading to a drop in blood pressure. Dr Lau doubted that that related to the motor vehicle accident.
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In September 1999, Dr Lau noted that the plaintiff had had some falls which the plaintiff said had occurred since the motor vehicle accident, but, at that time, was working five hours to six hours per day. Dr Lau felt that the plaintiff's limitation on climbing ladders and attending meetings was due to his neck condition and that the vaso vagal reaction led to Dr Lau being concerned about the plaintiff's ability to climb ladders. In November 2000, Dr Lau confirmed that the plaintiff had been working since March of that year, although the work was accompanied by pain, with limitations which involved repeated heavy lifting, climbing ladders and working at heights, on the basis that the plaintiff had been experiencing dizzy episodes in the past. In cross-examination, Dr Lau confirmed that the first time he gave a certificate to the plaintiff to be unfit for work was on 13 July 1998. He then gave a progress medical certificate on 25 August 1999 that the plaintiff was fit to resume restricted duties four hours a day, managerial duties only, and with no manual work. He did not think he had ever certified the plaintiff fit to return to his pre-accident duties. He also confirmed that since the plaintiff had been working in his earthmoving business, he had complained of pain, but that he worked through the pain and has pain at the end of the day. 37 Mr Quentin John Malone is a consultant neurosurgeon - the plaintiff was referred to him by Dr Phillip Finch, pain physician. He examined the plaintiff on 26 July 2001 and found the plaintiff to be significantly restricted in his range of movement of his cervical spine. Mr Malone reviewed the plaintiff's repeat MRI scan and report of a previous MRI scan and they demonstrated the possibility of a C7 nerve root compressional irritation. He asked Dr Finch to undertake a C7 nerve root sleeve injection. Mr Malone reviewed the plaintiff on 27 September 2001 and the plaintiff told him that there had been some improvement in some areas of his arm and hand after the injection, but that because some other areas had not improved, there was and had, in fact, been a C7 nerve root compression. He felt that 25 per cent of the plaintiff's pain was related to that. He felt that the plaintiff's complaints were consistent with these findings. This would have a restrictive effect on the plaintiff's ability to rotate his work, his neck and to look upwards with extension. He did not believe any surgical intervention would be successful, but that, possibly, a further injection might assist. Usually, a physiotherapy program with ongoing exercises was the best policy. There was some degree of brachial neuralgia, but the majority of the plaintiff's pain syndrome was a mechanical pain syndrome affecting the cervical spine.
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38 Dr Brian Galton-Fenzi is a specialist occupational physician. He provided the plaintiff's solicitors with two reports, one of 20 March 2001 and 1 October 2002. In his first report, Dr Galton-Fenzi felt that there were some limit in the plaintiff's work capacity and "would have some difficulties in some aspects in his earthmoving business". This arose from the plaintiff's limited cervical spine mobility and symptoms relating to the ongoing "neuropathic pain" involved in the left side of the skull, cervical spine and left upper limb. He felt that the plaintiff should not return to work as a building supervisor until he was capable of wearing safety gear (especially a hard hat) and has at least a further month without dizzy spells. He appeared to explain the plaintiff's reported occasional loss of balance to be the result of "whiplash associated disorder" from which he felt that the plaintiff suffered.
39 Dr Galton-Fenzi's second report, Q02 (1 October 2002), sets out a variety of symptoms suffered by the plaintiff on his left side. He felt that the plaintiff had developed a "chronic regional pain syndrome, which was neuropathic in aetiology". This syndrome was explained by Dr Galton-Fenzi at page 216 and page 217 of the transcript. This condition would, he felt, affect the plaintiff's employability because of the pain experienced by him. Some of the work involved in the plaintiff's previous job would also set off the pain syndrome, in his view. In cross-examination, Dr Galton-Fenzi agreed that when the second time he saw the plaintiff, he did not complain of episodes of loss of balance. As to returning to work as a building supervisor, Dr Galton-Fenzi accepted that the absence of further dizzy spells would assist such a return, but suggested that the wearing of a hard hat would make it difficult because they exacerbated neck pain. Although Dr Galton-Fenzi had never weighed a hard hat, he based his opinion on his own wearing of them and managing cases of people that wear them or could not wear them because of the condition. There did not appear to be any complaint from the plaintiff as to the wearing of a hard hat causing him increased symptoms - it appeared to be an expectation as far as the plaintiff and Dr Galton-Fenzi were concerned. He agreed that neuropathic pain would fall within the specialisation of a neurologist. He felt that the plaintiff could get some beneficial effect from modern medications to the extent that he could possibly return to a supervisory role. As to the work as a handyman, Dr Galton-Fenzi noted that the plaintiff had told him that he was working three days a week with varying hours and was "changing tap washers". This appeared to be less time span and less amount of work than the plaintiff advised in evidence. Dr Galton-Fenzi concluded by giving an opinion that there was probably nothing in the plaintiff's presentation to
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contra indicate him returning to work as a project manager or a building supervisor. 40 The plaintiff relied upon the evidence of Mr Eligia Luciano Pugliese, who was employed by the plaintiff's company, Pathfinder Building & Consultancy. He was originally paid $15 an hour, which went up to $17 an hour gross. Mr Pugliese averaged between 45 hours and 60 hours per week for the plaintiff. The plaintiff was mainly doing administrative type work, he said, with about 20 per cent physical work including truck driving and driving a bobcat. He said the plaintiff had several accidents in the course of that work because he could not really turn his head to see behind him. The plaintiff complained of a lot of neck pain in the course of that work. There was a further casual employed because of the workload. He said that up to the time of the plaintiff's accident in August 2001, the business appeared to have plenty of work, but he could not remember the exact hours he was working. 41 Dr Phillip Michael Finch is a pain specialist and gave evidence on behalf of the plaintiff. He provided 15 reports to various people, Exhibit P1 to Exhibit P15, the last report being on the date he last saw the plaintiff, 14 October 2002. When Dr Finch first saw the plaintiff on 30 September 1998, he suspected that the plaintiff had suffered a multi-segmental injury in the cervical spine, causing radiation of symptoms to his left hemi cranium and left upper limb. He felt the plaintiff had a significant injury to his neck which would not settle for a while. Dr Finch performed some nerve root blocks on the plaintiff in November 1988 which abolished his frontal headaches, but he still suffered from other symptoms. In January 1999, the plaintiff was still suffering from left brachialgia which was defined by Dr Finch as being left body pain. 42 Dr Finch reviewed the plaintiff on 16 October 2000 and viewed three surveillance videotapes. He felt that the plaintiff had ongoing evidence of a C5/6 cervical injury with persisting mild to moderate left cervico brachialgia which would vary from day to day and impinge on his lifestyle to some extent. Dr Finch accepted that the plaintiff would be unable to perform heavy lifting at times. Dr Finch then referred to the videotapes concerning the work with the Porsche motor vehicle, working around the building, working and walking around the building, and working on the back of a dump truck. Having seen the tapes and examined the plaintiff, Dr Finch felt that the plaintiff had the symptoms referred to above, but that they would not prevent him from working
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full-time in an earthmoving business. Dr Finch was also of the view that the plaintiff was fit to work in light engineering when the surveillance video was taken on 24 May 1999 ie. relating to the Porsche motor vehicle. He concluded that the plaintiff would be fit to work as a project manager, 75 per cent onsite, 25 per cent office, with only mild limitations. He was of the view also that his examination of 16 October 2000 and the activities seen on the surveillance were not in conflict, and would suggest that the plaintiff was indeed fit enough to work both as a project manager for a building engineer in mid-1999 and in an earthmoving business in mid-2000. He said that the plaintiff's current level of disability was long term and unlikely to change. After the plaintiff's accident of 6 August 2001, Dr Finch examined the plaintiff on 18 October 2001 and suspected that he had a tear at L4/5 involving the nerve root affecting the left lower limb. In October 2002, Dr Finch found that the plaintiff still had complained of left cervico brachialgia, with pain and parasthesia radiating as far as the medial fingers of the left hand. The low back symptoms were said to have largely settled. The arm pain was increased by activity, but the plaintiff had now set up a small business involving domestic maintenance work. Dr Finch was of the view, in evidence, that the plaintiff's pain with his left arm might affect his ability to climb a ladder, although some ladders one could go up easily without using one's arms. 43 So far as the plaintiff was concerned, a number of other medical reports and other documents were tendered by consent - they will be referred to by me in due course, only where relevant and necessary. 44 In addition, the plaintiff relied upon the evidence of Dr P House which was taken de bene esse on 16 May 2002, Exhibit R. This will once again be referred to by me when considered relevant and necessary. 45 The defendant also called Dr Alan Kernot, a specialist neurologist. He examined the plaintiff on 7 September 2000 and reported in his report of the same date, Exhibit 1. Having examined the plaintiff, Dr Kernot was of the view that he could not find any neurological abnormality with the plaintiff, and no evidence of Horner's syndrome reported by a previous practitioner. He said the plaintiff did report chronic cervico brachial discomfort and pathological disturbance of sleep with a typical facial pain. Dr Kernot felt that the plaintiff's "blackouts" could probably be postural hypotension, possibly exacerbated by the taking of Aminotriptolene. This opinion was strengthened by the evidence of Mr Scully that he had not had these instances of falling over and losing balance since he had ceased taking anti-depressant medication. Dr Kernot was of the view that none
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of the complaints made by the plaintiff would affect the plaintiff's ability to engage in work. He felt that the plaintiff's reduction in the range of movement of his neck was compatible with the degree of increased neck tension (muscular contraction), but he could find no evidence for structural injury to any component to his nervous system. The symptoms the plaintiff complained of would result in minimal disability, according to Dr Kernot. In cross-examination, Dr Kernot agreed that if someone has significant "disc equilibrium" ie. a certain type of dizziness, they would be uncomfortable with climbing ladders. He did not think the plaintiff's neck problem would limit him in terms of the lifting or manhandling items. 46 Dr John Hodgson Silver is a consultant occupational physician. He was called by the defendant and gave his evidence de bene esse. He saw the plaintiff on 13 October 1999, which resulted in the report of the same date, Exhibit 5a. The plaintiff complained of a number and variety of symptoms, some of which Dr Silver described as "bizarre". He concluded that the plaintiff had suffered a soft tissue injury in the motor vehicle accident and expected that this would resolve completely in due course. At the time, he thought the plaintiff was significantly, if not fully, recovered from his motor vehicle injuries. As to the plaintiff's complaints of dizziness etc., he was rather sceptical about these on the basis of the plaintiff had recently been passed as being fit to obtain a bus and truck driver's licence. 47 In his report of 2 May 2001, Exhibit 1B, Dr Silver, after having reviewed the plaintiff on that date, found that the plaintiff had some cervical discomfort continuing, but he felt that the plaintiff could perform moderate physical work in a landscaping business. He felt that a disability of the cervical spine in the region of 5 per cent would be appropriate. Having seen the plaintiff again on 14 February 2002, Dr Silver was prepared to increase the percentage disability to 15 per cent in accordance with that of one or more other medical experts and felt that this was "two-thirds" related to the motor vehicle accident. As at 8 March 2002, Dr Silver was of the view that the motor vehicle accident had not, nor had the lifting accident in August 2001, affected the capacity of the plaintiff to return to his pre-accident occupation and he remarked, in particular, that work in an earthmoving business was more physical than the previous work undertaken by the plaintiff. 48 In cross-examination, Dr Silver said that as far as he was concerned, any loss of balance and similar symptoms were not as a result of the motor vehicle accident and that there were some psycho-social aspects which affected his ability to assess the musculo skeletal aspects of the
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plaintiff's claim. In cross-examination, he said that having said this, he did not necessarily disbelieve the plaintiff, but felt that the psycho-social aspects were masking the true physical effects of the motor vehicle accident upon the plaintiff. 49 The drawing of appropriate conclusions from the evidence in this matter is not easy because, since he began employment in the early 1970's, the plaintiff has worked more or less consistently until the present date, save for the periods off work referred to above. During this time, the plaintiff has had a number of significant physical injuries including the shoulder and back injuries before the motor vehicle accident, the motor vehicle accident-caused injuries themselves and the back injury suffered on 6 August 2001. Since the motor vehicle accident, the plaintiff has been making continuous complaints as to various symptoms suffered by him as a result thereof. As can be seen from the summary of the evidence above, some of the symptoms, the plaintiff accepts, have improved although he still complains of significant symptoms in his cervical spine and in the left arm, together with other connected areas. The plaintiff continues to maintain that he is not fit to resume his pre-accident occupation as a project manager/building supervisor because of the difficulties in climbing ladders and generally getting into small spaces onsite. Notwithstanding this, the plaintiff has been able to continue to carry out certain forms of employment, some of which can be regarded as involving strenuous physical work, for example, earthmoving which involves bobcat driving, shovelling etc. 50 There are, however, certain conclusions which, in my view, clearly arise from the evidence ie.: 1. Before the accident, the plaintiff had suffered a number of serious injuries which may have had the potential to affect his ability to work either then or in the future. In particular, I refer to the back injury which led to a laminectomy and the various shoulder reconstructions. It is also a proper conclusion that these injuries caused the plaintiff some symptoms from time to time. 2. Despite these injuries and symptoms, the plaintiff worked full-time in a variety of jobs, particularly that of project management and building supervising. This work involved, inter alia, office administrative work and on-the-job physical work including walking around sites, climbing ladders and manoeuvring into confined spaces. The plaintiff had a broad range of experience, both clerical and physical, in the building industry.
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3. The plaintiff has a good work ethic. 4. The plaintiff was reasonably fit and engaged in social and recreational pursuits, though perhaps not to the extent suggested by the plaintiff, at the time of the accident. 5. Assuming no further injuries or considerable degeneration, the plaintiff would have worked for the usual working life of a person of his physical and mental standards. 6. The accident was moderate in nature and caused immediate damage to the plaintiff's cervical spine with other related problems including headaches, shoulder pain and pain down the left arm leading to areas of pain in his left arm. 7. This injury immediately affected the plaintiff's ability to carry out his work as a project manager, although the plaintiff attempted as best he could to resume his previous employment, not only of the type, but also the hours involved. These attempts were unsuccessful and the plaintiff was, for a time, unable to continue his employment. 8. Throughout this and later years, the plaintiff has basically been motivated by his work ethic. 9. The effects of the accident upon the plaintiff have not only been physical, but also have affected him psychologically in the sense that it has led to a concern by him about his work future and his marriage in particular. These psychological problems have affected the way in which the plaintiff has viewed the accident and its sequelae and, I consider, have led to him dwelling upon such symptoms and perhaps enlarging and extending their longevity as a result. 51 There are other areas to be considered, the resolution of which is more difficult. I have determined that the best way to deal with the matter is to consider the chronological history and to compare the evidence of the plaintiff with the evidence of various witnesses including medical witnesses at appropriate points. 52 It is not necessary to repeat the plaintiff's work history up to the date of the accident, save to say that by 1997, he had created his own business (Pathfinder Building & Contracting) which resulted in him receiving the sum of $1,300 per week from the head contractor, of which $800 was paid to him for his own personal income and the balance was used to service debts owed by the business. It appears that this was a reasonably successful enterprise.
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53 It is clear also that after the motor vehicle accident, there was a period when the plaintiff was unable to work. This was confirmed by Dr Lau, not only as to the symptoms, but as to the result of the symptoms so far as his work was concerned. Mr Pugliese supported, to a degree, the plaintiff in these matters as did his wife. Ultimately, the business collapsed and the plaintiff was not working for a considerable time. During this time, the plaintiff was complaining of a variety of symptoms and the effects of this upon him to a variety of medical practitioners including Mr Bell. Mr Bell, in November 1998, supported the plaintiff's complaints and felt that he could not work as a building supervisor at that time and could not, probably, work in that capacity for three months to six months.
54 On 12 May 1999, the plaintiff was seen working with and around the Porsche motor vehicle. Mr Bell's descriptions of these activities, as well as other medical practitioners and my viewing of the video, suggest quite strongly that, at that time, the plaintiff was able to undertake a variety of physical activities inconsistent with the symptoms of which the plaintiff was complaining at that time. It is said by the plaintiff and his wife that he had considerable detrimental effects as a result of this work, however, having seen the films, Mr Bell concluded that there was, in his view, very little by way of a sequel to the motor vehicle accident to the plaintiff and that the plaintiff was fit to do clerical work, but not fit to work as a building consultant, although he would be within 12 months to 18 months of that time. Mr Finch felt that, having seen the films, the plaintiff was fit to work in a light engineering capacity. Mr Finch appeared to be concerned about having seen the films and having given other opinions as to the plaintiff before seeing such films. 55 By October 1999, it was Dr Silver's view that the plaintiff had recovered from the effects of the accident and, about that time, Dr Lau felt that the plaintiff was fit only for managerial work and was concerned about the falls said to have been suffered by the plaintiff from time to time. 56 By early 2000, the plaintiff had commenced his own earthmoving business and the history of that has been set out. In October 2000, Mr Finch, having seen the videos, felt that the plaintiff still had symptoms but this would not prevent him working full-time in the earthmoving business. There are films of the plaintiff involved in some activities on and around a large truck and he is seen to be shovelling some substance for a reasonable time, obviously having climbed in and out of the truck. It appears that he was able to undertake this work although the plaintiff had
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said that when he did so, he suffered afterwards for it. In September 2000, Dr Kernot was of the view that the plaintiff had no neurological symptoms, no Horner's disease and that he could work in most capacities, although he was concerned to a degree as to the plaintiff working on ladders. 57 In early May 2001, the plaintiff purchased a second truck and bobcat and around that time, he was working 50 per cent doing quoting and 50 per cent performing physical work. Dr Galton-Fenzi was of the view that the plaintiff was having difficulty working in March 2001 and around that time, Mr Malone, having seen the plaintiff, felt that the plaintiff had nerve root problems as a result of the motor vehicle accident. There was similar support from Dr Malone in September 2001 as to the existence of the plaintiff's symptoms. 58 As at June 2001, the company was running at a loss and shortly after that, the earthmoving business went bankrupt. The company apparently continued to operate as a business but the plaintiff had the further toolbox injury on 6 August 2001. It is clear that he had a reasonably serious injury to his back, although Mr Neville Knuckey, neurosurgeon, found that there was no herniation. He said that the plaintiff could not work as a result of that, particularly if such work involved heavy lifting. His diagnosis generally was that of an acute back strain. The plaintiff spent two weeks in hospital and it is clear that from that point on, he was suffering symptoms not only from his back, but lessening symptoms from the motor vehicle accident. 59 As at November 2002, the plaintiff said that the earthmoving business ceased to operate because of the financial difficulties caused to it as a result of the motor vehicle accident and its effect on the plaintiff's ability to work. 60 In the meantime, the plaintiff had started another business in February/March 2002 (TLS Building & Maintenance). This involves a reasonable degree of physical work on the part of the plaintiff and he was earning in the region of $600 per week. The plaintiff was continuing to complain of symptoms and, in October 2002, Dr Finch said that the plaintiff still had some symptoms and that, in particular, any problems with his arm could affect his ability to perform ladder work. The plaintiff felt, and still feels, that he cannot work as a project manager/site supervisor because of the difficulties in climbing and the other matters and, of course, the wearing of helmets. He conceded in cross-examination
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that he could work as an earthmoving landscape contractor but without driving a bobcat. 61 In October 2002, Dr Galton-Fenzi supported the plaintiff's general views as to his ability or otherwise to work. 62 From this history and the interaction of the plaintiff's evidence and that of the various medical practitioners, together with the evidence on the videos, it is appropriate to draw the following conclusions: 1. That the plaintiff has continued to have symptoms from the motor vehicle accident to the present time but that those symptoms have largely resolved, leaving the plaintiff with some limited residual symptoms, particularly in his cervical spine and left arm. 2. That such symptoms do not now affect the plaintiff's ability to carry out his pre-accident occupation. 3. That by early 2000, the plaintiff was able to work in an occupation which involved clerical work and some degree of reasonably hard physical work. Although this involved some pain and difficulties on the part of the plaintiff, he was able to carry out this occupation. The financial documents and the evidence generally demonstrates that the plaintiff's ability to earn an income was restricted by his symptoms in the sense that he was required to put on additional labour to make up for some work which he was not able to carry out himself. This was, in effect, a practical demonstration of the limitations on the plaintiff's ability to earn the same income in an earthmoving business as a person with no physical disabilities or limitations. 4. It is clear that the accident on 10 August 2001 affected the plaintiff's ability to work, however, the effects of this accident on the plaintiff had largely ceased by early 2002. 5. During 2002, the plaintiff was able to carry on a business earning approximately $600 per week, but with some continuing symptoms and some effects on the financial viability of such business. 63 So far as the physical results of the accident are concerned, it is clear that the plaintiff has suffered an injury to his neck and cervical spine with a variety of symptoms arising therefrom including jaw pain, neck pain, restricted neck movement, weakness of the left arm and some associated problems involving nausea, disturbed sleep, together with some anxiety and psychological difficulties. These symptoms, as previously mentioned,
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have largely resolved themselves, in my view, and continue to a minimal degree, although they can be exacerbated by heavy and prolonged physical activity. There may have been an injury to the plaintiff's left ear resulting in hyperacusis, however, the evidence of the ear and throat specialists, Dr McKendrick and Dr McManus, although accepting the possibility that this occurred in the motor vehicle accident did not provide a sufficient basis, in my view, for a firm conclusion to be drawn as to that connection. Similarly, although there may have been some effect on the plaintiff's eyelids, it is not possible, in my view, in the light of the specialist medical evidence, to conclude that the plaintiff suffered Horner's syndrome of the left eye. In any event, according to Dr House, this is largely a minor cosmetic difficulty involving no functional implications (probably caused by whiplash, according to Dr House). The symptoms suffered by the plaintiff have affected, over the time since the motor vehicle accident, his enjoyment of life and has affected, obviously, the relationship between the plaintiff and his wife and family. It has had a detrimental effect on his ability to undertake recreation, although his commitment to his work may well have also affected his ability and time available for his involvement in recreational pursuits. 64 As to the calculation of a reasonable award by way of damages for loss of amenities etc., the various matters referred to above lead me to conclude that the award of damages in this regard should be based on a figure of 16-1/2 per cent of the "most extreme case" - see Motor Vehicle (Third Party Insurance) Amendment Act 1994. The relevant authorities are well known. Sixteen-and-a-half per cent of amount "A" being the amount applicable with effect on and from 1 July 2002 (ie. $240,000 is $39,600). Bearing in mind the provisions of s 3 of the Act, this is more than amount "C" (ie. more than $36,500) but less than the sum of the amounts of "B" and "C" (ie. more than $36,500) but less than the sum of the amounts of "B" and "C" (ie. less than $48,500). Therefore, s 3C(6) applies and, using the formulae in that subsection, the assessment of 16-1/2 per cent produces an award of $30,700 for general damages. 65 As to the plaintiff's claim for past loss of earnings and loss of future earning capacity, the plaintiff's counsel referred to and relied upon a revised "schedule of damages" dated 19 November 2002. The loss of earning capacity said to have resulted from the motor vehicle accident was calculated by reference, both to the workers' compensation weekly payment received by the plaintiff and expenses involved in running the plaintiff's businesses from time to time. The resulting figures are set out in the schedule. For the period 26 June 1998 to 11 March 2000, the date of the motor vehicle accident and date of commencement of the
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earthmoving business respectively, a figure of $114,618.84 is claimed (including a figure of workers' compensation paid of $67,778.44. From 11 March 2000 to 6 August 2001, when the plaintiff had a back injury, a figure of $68,000 and $36,000 is claimed. No amount is claimed for the period 6 August 2001 and February 2002 in respect of which it is accepted that the plaintiff was unable to work because of the back injury from the accident on 6 August 2001 - a period of six months. I agree that this concession and finding to that effect should be made. From February 2002 to the date of trial, an amount of $12,600 is claimed. 66 On the other hand, the defendant's counsel argued that the evidence disclosed that the plaintiff was fit for a variety of occupations by early 2000 (assume this to be 11 March 2000), having been for some time fit for limited occupations by May 1999. It was submitted that the workers' compensation paid, together with the sum of $45,000 by way of redemption of payments, were sufficient to compensate the plaintiff for any loss of earnings in relation to the motor vehicle accident, not only to the date of trial, but in the future. 67 I have considered the evidence and conclude that the plaintiff, in my view, was fit to resume his pre-accident occupation by early 2000, but with the proviso that thereafter until the date of trial, he would have had some limitations on his ability to work full-time in that occupation, including some occasions when his work caused an exacerbation of his symptoms and the possibility of employing some extra labour to make up for periods when he was developing his business and needed an extra manpower to cover the limitations in his work capacity. The figures and the evidence provided by the plaintiff do not make a precise calculation easy, the absence of some specialist accounting evidence not assisting such calculations. The period from the motor vehicle accident to the trial in November 2002 is a period of 4-1/2 years, from which should be deducted a period of six months from August 2001 to February 2002, leaving a period for the purpose of calculation of 208 weeks. Doing the best I can, the average loss, in my view, over this period should be based on a figure of $500, making a figure of $104,000. This figure of $500 per week is based on the amount involved in the payment of expenses for the plaintiff's businesses and the hiring of labour and the cost of purchase of new and replacement equipment for such businesses as reflected in the accounts and the evidence generally. This is a convenient figure to use to clarify the loss to the plaintiff resulting from the matters referred to above.
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68 This figure of $104,000 will be awarded to compensate the plaintiff for loss of earnings from the motor vehicle accident to the date of trial.
69 From the date of trial, it can, in my view, be expected that the plaintiff will have some limited symptoms from time to time and this will, in my view, cause there to be some occasions when the plaintiff may have some difficulty obtaining contracts (whether household or on a larger scale). In my view, a global figure of $30,000 would be appropriate to compensate the plaintiff for the losses in relation to the plaintiff's future earning capacity. 70 Although there was a claim for future medical expenses, there was no evidence upon which an award can be made under this head. 71 The plaintiff will, therefore, be awarded:
General damages $ 30,700.00 Loss of earnings to date of trial $104,000.00 Future loss of earning capacity $ 30,000.00 Agreed special damages $ 16,175.93 Total $180,875.93
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