Stafford (formerly Kidney) v Nominal Defendant

[1994] QCA 192

IN THE COURT OF APPEAL	[1994] QCA 192
SUPREME COURT OF QUEENSLAND	Appeal No. 194 of 1993
Brisbane
[Stafford v. The Nominal Defendant]
BETWEEN:

LISA FRANCE STAFFORD (FORMERLY KIDNEY)

(Plaintiff) Appellant

- and -

THE NOMINAL DEFENDANT

(Defendant) Respondent

Mr Justice Davies Mr Justice Pincus Mr Justice Thomas

Judgment delivered 10/06/1994

Judgment of the Court

APPEAL ALLOWED TO THE EXTENT OF SUBSTITUTING FOR THE JUDGMENT BELOW A JUDGMENT FOR THE PLAINTIFF OF $276,635. OTHERWISE APPEAL DISMISSED WITH COSTS.

CATCHWORDS:	APPEAL - Quantum - Appellant pillion passenger on unregistered and uninsured motorcycle involved in a collision - Appellant suffered numerous injuries including brain injury - Appellant not frank in revealing her pre- accident work history - Major income earned from working as an escort and prostitute - Whether trial judge's assessments of the evidence and primary findings based on credit could be interfered with - Whether damages awarded below inadequate - Judgment below upheld.
Counsel:	S. Williams Q.C. for the Appellant G. Crooke Q.C., with him D. Tait, for the Respondent
Solicitors:	Michell Sillar Nicholsons for the Appellant Gadens Ridgeway for the Respondent

Hearing Date: 18th March 1994

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 194 of 1993
Brisbane
Before Mr Justice Davies

Mr Justice Pincus

Mr Justice Thomas

[Stafford v. The Nominal Defendant]

BETWEEN:

LISA FRANCE STAFFORD (FORMERLY KIDNEY)

(Plaintiff) Appellant

- and -

THE NOMINAL DEFENDANT

(Defendant) Respondent

JUDGMENT OF THE COURT

Judgment delivered the 10th day of June 1994.

This is a plaintiff's appeal against the quantum of damages awarded after a Supreme Court

trial lasting five days. The following is the learned trial Judge's summary of the items of damage

assessed.

"1.	pain suffering and loss of amenities
- including loss of sense of smell - $ 18,000
2.	risk of epilepsy $ 2,000
3.	scarring $ 300
4.	Interest on above item 1 - for 7 years and
2 months @ 2% p.a. $ 2,577
5.	Pain suffering and loss of amenities - future $ 37,000
6.	Impairment of earning capacity - past (agreed) $ 25,000
7.	Interest thereon - agreed $ 4,620
8.	Impairment of earning capacity - future $ 90,000
9.	Allowance for future pharmaceutical expenses
- (agreed) $ 5,000
10.	Cost of domestic assistance - future $ 36,000
11.	Cost of chiropractic treatment - future $ 10,000
12.	Cost of massage - future $ 14,000
13.	Cost of future consultations with G.P. $ 9,000

$253,497"

By oversight special damages which had been agreed between the parties at $19,250, and

interest thereon which had been agreed at $3,888 were not included in the award. This was

immediately conceded by the respondent when first raised by the appellant, and it is agreed that

these sums should be included in the judgment, thereby increasing it to $276,635. This adjustment

was never in issue.

The appeal seeks to attack the primary findings of the learned trial Judge. In order to

consider the submissions it is necessary to present a resume of the evidence.

The plaintiff was born on 27 March 1961 in the New Hebrides. At age four she came to

Australia to live with her mother. She left school at age fifteen, before completing her New South

Wales Higher School Certificate, in order to act in some "short films". Her pre-accident

employment history was described by the learned trial Judge as "a series of occasional jobs". She

gave evidence that she left her mother's house at age seventeen and from around August 1978 to

January 1979 worked as a filing clerk and relief receptionist at Clark Rubber, Chatswood. From

around January 1979 to around July 1979 she lived in Melbourne and was mostly unemployed.

She then returned to Sydney and until early 1980 worked in various waitressing and

barmaid jobs in Sydney restaurants and clubs. She worked for about three months in early 1980 for

Flick Collins, Insurance Brokers, of Milsons Point as a receptionist, and between May and

November 1980 worked as a waitress and barmaid at Benito's Restaurant, North Sydney. She

claimed that over the next four or five years she performed a variety of casual positions, including nine months nannying work for a Mossman family, modelling for art classes in Sydney, casual

cleaning work, bar work, waitressing, and some escort work in Darwin.

The learned trial Judge found that the plaintiff was not frank in disclosing her pre-accident

work history. He accepted generally that she had a series of occasional jobs and that she did work

at most of the places of which she spoke, but did not accept her evidence that she earned money

doing modelling at art classes, or that she did all the waitressing and bar work that she claimed. The

plaintiff claimed that she began working with an employer (Maslor) in December 1985 as a

receptionist, organising bookings, and sometimes working as an escort. Mr Matus, who owned the

company, said that she applied to work as a hostess for his company in May or June of 1983 and

started such work at that time. His Honour found that from at least June 1983 to June 1986, her

main source of income was working as an escort, and that she had probably earned income from

such activity before that period as well. His Honour found that despite the plaintiff's work with FAI

Insurance, for five months in 1985, the main source of her earnings before the 1986 accident was

from her activities as a prostitute.

In October 1984, she was injured in a motor vehicle accident in Sydney and received a

payout of $6,000 in the settlement of her action for damages. Her sacro-iliac joint was injured but

in view of the amount of the settlement the plaintiff received, it cannot be regarded as a major injury.

The plaintiff did not keep records of her working places or her earnings. She lodged no tax

returns until the 1990 Tax Office Amnesty.

The accident occurred on 29 June 1986 at Bundall (Queensland) while the plaintiff was on

holidays. She was a pillion passenger on an unregistered and uninsured motorcycle when it collided

with a motor vehicle.

After the accident she was taken to the Gold Coast Hospital and then transferred to the

Princess Alexandra Hospital in Brisbane. She remained an in-patient at Princess Alexandra Hospital

for about eighteen days. Upon discharge from the hospital she flew back to Sydney and received

out-patient treatment.

The learned trial judge found that the plaintiff suffered the following injuries and

consequences as a result of the accident:

1.          A linear occipital fracture of the skull.

2.          An undisplaced fracture of the right medial cuneiform.

3.          Fractures of the thoracic vertebrae from T6 to T11 with wedging, a mild kyphosis and a small scoliosis.

4.          Fracture of the spinous process of C7 which remains ununited.

5.          Cervical ligament strains.

6.          Fracture of the left superior pubic ramus.

7.          Right pneumothorax.

8.          Fractures of the second and third metacarpals of the left foot.

9.          Traumatic chondromalacia of the left patello-femoral joint.

10.        Lumbar ligament strains.

11.        Loss of sense of smell.

12.        Headaches.

13.        Damage to the left optic nerve.

14.        Brain damage being areas of cortical atrophy at the anterior poles of both temporal lobes and some mild inferior frontal lobe atrophy over the inferior surfaces.

15.        Scarring.

16.        A minor degree of sensitivity to light."

She was prescribed Dilantin to ease her back pain and to guard against the possibility of

epilepsy. According to the report of the plaintiff's doctor from the Out-patient's Clinic, the plaintiff

ceased taking Dilantin on 21 October 1986. However, on 1 December 1986 she was admitted to

the Royal Northshore Hospital with an alleged overdose of Dilantin and Brufen. She was an in-

patient there until 5 December 1986, and was diagnosed as a para-suicide.

The plaintiff consulted a large number of medical practitioners in the years following her
accident. These included a general practitioner (Dr Kitching), four orthopaedists, several

psychiatrists, two neurologists, and two clinical psychologists. Orthopaedic reports were tendered

from Dr B.J. Ireland dated 7 June 1989 after consultation with the plaintiff on 6 June 1989; Dr John

Stephens dated 16 August 1989; Dr Stephen Ruff dated 10 May 1991; and nine reports from Dr

A. Searle dating between 18 December 1990 and 18 June 1993. Dr Ruff saw the plaintiff five times

between August 1986 and April 1987, while Dr Searle saw the plaintiff twice only. The plaintiff

consulted several psychiatrists including Dr Jolly, who saw the plaintiff three times between 19

February 1991 and 17 March 1992. Dr Jolly gave oral evidence at trial and furnished three written

reports. Two neurologists gave oral evidence at trial - Dr Kevin Bleasel (who also furnished five

reports), and Dr John Cameron (who furnished two reports). Dr Bleasel saw the plaintiff once, and

Dr Cameron saw her twice. Both Drs Bleasel and Cameron had the benefit of reports from Dr

Pauline Langeluddecke, a clinical psychologist. Dr Langeluddecke gave oral evidence and furnished

five reports on the plaintiff. The reports were dated 20 April 1990 to 10 March 1993. The

defendant tendered two reports from Dr Michael Weston, a clinical psychologist who the plaintiff

consulted on 17 April 1991.

The plaintiff's post-accident work history, after an initial recovery period of one year, does

not seem to have been much less active than her pre-accident history. From June 1987 until

December 1988 she worked as a casual shop assistant. She also returned to work at Maslor as an

escort, stating that she worked from January 1988 until 24 March 1990 as a receptionist for three

nights per week. She then obtained employment with Madgwicks Solicitors from 16 May 1990 to

4 March 1993, working initially as a receptionist, and then as an assistant to Mr Cheetham. At

Madgwicks, after being given a raised salary, she was paid $41,256 gross per annum plus a bonus,

which results in a net after tax salary of $530 per week. The learned trial Judge stated that he was

satisfied the salary was in excess of the plaintiff's true earning capacity at that office.

Mr David Cheetham was the Chief Executive Officer of Madgwicks Solicitors at the time

the plaintiff was employed there. He gave evidence that in his opinion the plaintiff was "quite

unsuited for the work of a receptionist". He related a number of instances of the plaintiff behaving in

a manner which he considered inappropriate for a legal office. He described her phone manner as

intrusive, inclined to be aggressive, and over-familiar, citing an instance of a client being called

"darling" by the plaintiff when ringing the firm. As another example of over-familiarity, Mr Cheetham

said that the plaintiff was in the habit of calling the senior partner "Wozzie". Mr Cheetham also said

that the plaintiff characteristically took her shoes off in the office and that she would wander through

the foyer, and sometimes serve clients tea and coffee with her shoes off. He said he believed this

projected an inappropriate image for a firm of solicitors.

She rejected discipline by her employers and failed to accept the instructions that Mr

Cheetham gave her. This attitude was consistent over the entire time. (It might be thought curious

that she was retained in this employment for so long.) He described their relationship as one of

"continual antagonism", and said that many other members of staff complained to him about the

plaintiff's behaviour. Her conduct included lying on couches in offices and lying on the floor on the

boardroom with her shoes off. She complained of back pain and took pain-relievers while at work.

The plaintiff explained her need to lie down while at work as a means to relieve her back pain.

Mr Cheetham also gave evidence of more general problems with the plaintiff at work. He

said that she had an inability to put issues in perspective and had an inability to think laterally. He

also said that she had difficulty in remembering things and that this led him to run a review system to

ensure that she did not forget to complete any tasks. The plaintiff's employment was terminated on

an occasion when the plaintiff was sitting with her feet up on the desk in the lobby, talking on the

telephone. Mr Cheetham had words with the plaintiff regarding this behaviour, and she challenged

him to fire her. Mr Cheetham took up the invitation.

These details have been related at some length because it is said that they support the view

that her disinhibition was the result of frontal lobe injury. They are also, it might be thought,

consistent with a wayward personality that may have preceded the accident.

Multiple grounds, thirty-eight in all, were included in the notice of appeal. In presenting his

arguments counsel for the appellant reduced these to a number of main points. The submission

sought increases in the following heads of damage by approximately the following amounts.

General damages	$ 30,000
Future economic loss	$ 60,000
Future domestic assistance	$ 18,000
Future massage treatment	$ 28,000
Future surgical treatment	$ 1,500

Counsel for the appellant submitted that this Court should set aside the primary factual

findings of the learned trial Judge and substitute alternative findings. His Honour expressly rejected

various parts of the plaintiff's evidence and expressed an adverse view of her credit generally, finding

that she had not been frank in disclosing her pre-accident work history, and that contrary to her

assertions her major income earning activity prior to the accident had been from working as an

escort whenever she needed money, and that her work as an escort included prostituting herself.

His Honour discounted allegations of work in other capacities. If this approach is sustainable, it

cannot be held that she earned substantial income other than through prostitution and related activity between the time when she left school (age fifteen) and the time of the accident (age 25). There

were of course various short periods of clerical and other employment, although his Honour found

that whilst working for F.A.I., she was also working at night for an escort agency.

There were conflicts in the medical evidence. On orthopaedic matters his Honour accepted

Dr Morris in preference to Dr Searle. On matters concerning the effects of the plaintiff's brain injury

his Honour accepted the opinions of Dr Cameron and rejected those of Dr Bleasel. His Honour

also accepted in part the evidence of Dr Langeluddecke (a clinical psychologist) and of Mr Weston

(a clinical psychologist) and accepted some of the observations of Dr Jolly (a psychiatrist), but

rejected others.

Counsel for the appellant attempted to demonstrate a number of errors of approach in his

Honour's reasons and contended for a "domino effect" which would persuade this Court that his

Honour's advantage in the assessment of witnesses had been misused in line with the principles

recognised in Devries v. A.N.R.C. (1992-3) 177 C.L.R. 472.

Four main points of attack were advanced.

1.          With respect to part of the time after the accident the plaintiff worked for Maslor Pty Ltd as

a receptionist, his Honour found that her work during this period (January 1989 to 24 March 1990)

was not as a receptionist but as an escort. This was incorrect, as the evidence of her employer Mr

Matus (who was accepted by his Honour) shows. This error is conceded by the respondent. The

error may well have been a transposition of the pre-accident situation where his Honour accepted

Mr Matus's evidence that she was working as an escort contrary to her evidence that she had been

working as a receptionist only. Be that as it may, an error is shown in respect of this aspect of her

post-accident activity. Whether this infects the ultimate findings on credit will be considered later.

2.          His Honour on more than one occasion in his reasons for judgment made the observation

that the plaintiff had "shopped around" for medical reports. It is true that the evidence shows that

she attended before a large number of medical persons between accident and trial, but many of

these were for treatment, and she appears to have consulted most of the latter persons upon reference from other treating doctors or from her solicitors. His Honour noted that the plaintiff

adopted the habit of reading the various medical reports as they emerged, but it is not clear that she,

as distinct from her solicitor, sought other reports which might be hoped to present a more

favourable picture of her injuries. The observation may therefore be thought to have been an

unwarranted reflection upon the plaintiff.

The main point developed by counsel for the appellant from this was that this led his Honour

to prefer the evidence of Dr Morris over that of Dr Searle. However it is difficult to justify such a

conclusion. The preference for Dr Morris over Dr Searle seems to have been based upon multiple

factors including other evidence of the presentation of the plaintiff, and of course his Honour had the

benefit of seeing and hearing all these witnesses. Although it is possible to be critical of his Honour's

conclusion that the plaintiff was "shopping around", this is not a conclusion that seems to have been

central to his Honour's adverse view of the plaintiff. Indeed this adverse view seems to have been

based upon far more substantial grounds including, for example, the direct conflict between her

evidence and that of her former employer Mr Matus, and his Honour's conclusion that she had not

been frank with the Court.

3.          His Honour observed that the appellant's inability to remember the early part of her period in

hospital may have been due to the medication administered in hospital rather than due to post-

traumatic amnesia. It was submitted that that observation was erroneous. The difficulty with this

submission is that in order to succeed it requires acceptance of the plaintiff's evidence of relevant

facts and details in the early period of her admission in hospital. If his Honour was entitled generally

to reject her evidence, he was entitled to reject, or not be satisfied of the accuracy, of this evidence

also. The relevant findings, which are here attacked, were:

"I do not accept the plaintiff's evidence that she had several days amnesia post- accident due to the head injury. I find it more likely than not that her period of forgetfulness post-accident is due, if not entirely then in very large degree to medication administered in hospital. On 3rd July 1986 the plaintiff's intercostal catheter was removed and the pneumothorax had resolved."

If the amnesia was established, the appellant's position would be strengthened as to the
seriousness of the neurological consequences. However in our view this particular argument seeks

to lift itself by its own bootstraps. His Honour was by no means bound to accept the plaintiff's

evidence suggestive of post-traumatic amnesia.

4.          The acceptance of the evidence of Dr Morris and the rejection of that of Dr Searle was said

to have been flawed, because his Honour ultimately found that the plaintiff would not become totally

unemployable "until about fifty-seven years old". This was said to be inconsistent with Dr Morris's

evidence because that doctor said he did not believe that the plaintiff would suffer degenerative

changes in her thoracic spine. The submission however does less than justice to Dr Morris's

evidence, including the following:

"Would you expect, in the light of her overall injuries, for that percentage disability to increase?-- Not really. If she got degenerative changes she may have a slight increase, but it wouldn't be marked and I probably included some of the potentiality for that in the 20 per cent. 20 per cent is a fairly high level.

At what age might she get degenerative changes?-- Probably another 20 or 30 years.

She is 32 now, what would you see her working life being assuming she worked as a receptionist or secretary?-- Well, I would have thought she probably could have worked through to 60 in that type of work, but if she developed some degenerative changes there is a possibility she may have to cut it back by a couple of years, but not by much."

His Honour's assessment is consistent with this approach, and if it can be criticised this can be so

only on the basis that it is slightly more favourable to the appellant than Dr Morris's evidence

demands. There is no basis for the submission that his Honour's findings in this respect are more

consistent with the evidence of Dr Searle than that of Dr Morris. Indeed Dr Searle's evidence was

to entirely different effect, namely that she would be unable to work by about age forty.

Having addressed all the above criticisms, including the mistake identified in paragraph 1

above, we are unable to conclude that his Honour palpably misused his advantage as trial Judge in

assessing the evidence, or that the primary findings should be set aside or that any sufficient basis

exists upon which this Court should interfere with the primary findings based on credit.

Before addressing the adequacy or otherwise of the amounts awarded under the relevant
headings, it is necessary to consider the severity of the principal injuries, and to consider whether, as

was submitted, his Honour underestimated the effect of the injuries to the brain and also the effect of

the orthopaedic injuries.

As to the frontal and temporal lobe brain damage generally, there was evidence that even

significant head injuries do not necessarily generate a particular level of disability. Dr Cameron

observed "you can have quite prominent damage evident on those X-ray studies, but that damage

may ... not affect that patient in her day to day activities ... There is no correlation between what

you see on a scan and how that patient is going to be when they (sic) walk in the room." The

evidence was to the effect that comparable injuries to the brain may produce different effects in

different people. There is evidence that there was a substantial subjective or functional element in

the plaintiff's symptomatology.

A further question arises whether additional evidence such as that from the psychologists

should have been accepted so that a more serious view needed to be taken of the appellant's

disabilities. Psychological testing demonstrated a high I.Q. after the accident (121) but it was

probably still higher before the accident. Dr Langeluddecke considered that the accident produced

only a "slight decline" in her intellectual abilities. The evidence does not suggest that this loss

constituted a particular problem or had any marked effect upon her earning capacity. The effects of

the brain damage to the frontal and temporal areas may be shortly summarised as disinhibition, loss

of planning ability, and loss of memory. Such matters, if of sufficient degree, are very significant in

most employment areas and are capable of having a substantial effect upon earning capacity.

However the evidence (other than that of the plaintiff) does not clearly establish marked

performance disabilities or deficits in these areas. More relevantly it does not establish substantial

variation in such matters between her pre-accident conduct and her post-accident conduct.

Prior to the accident, despite her high I.Q., she came thirty-third out of a class of thirty three

at a gifted school. It is not unfair to say that she manifested behavioural problems, and that her

history up to the time of the accident revealed her as unlikely to realise her potential. Reliance was placed by the appellant's counsel upon her post-accident conduct, and in particular her ultimate loss

of her well paid job with Madgwicks. The evidence of Mr Cheetham shows that this loss of

employment resulted from personality or behavioural problems. Whilst this is consistent with the

disinhibition that may be caused by frontal lobe damage, it is also consistent with behavioural

difficulties and strong personality traits that were manifested before the accident. Relevant evidence

of change of behaviour on her part after the accident came from Mr Matus, who said that the main

difference in her after the accident was that she had "calmed down" somewhat. Against this, it is

difficult to say that the accident was responsible for the traits that led to her loss of employment with

Madgwicks after the accident. It is even more difficult to say so when it is realised that the obtaining

of highly-paid employment of this kind was not a part of her pre-accident curriculum.

In the end there is no reason why his Honour was not entitled to accept, as he did, the

opinions of Dr Cameron. These were to the effect that her symptoms were mainly subjective, and

overall were minor. The main objective evidence of neurological damage was her anosmia (loss of

sense of smell and partial loss of taste). Dr Cameron accepted that the plaintiff had sustained a

significant head injury in the accident, but opined that the after-effects of her brain injury "are very

mild and really would not be compromising her day to day activities and vocation." There also is a

deal of evidence supporting the view that her general presentation after the accident is not suggestive

of severe effects having been produced by such brain damage as she has suffered. Mr Weston

observed:

"At the time of psychological examination Ms Kidney presented as an alert, oriented, fashionably dressed and articulate woman who clearly is of above average verbal intellectual ability. She had a definite and assertive, although not aggressive manner, was emotionally responsive although at times did engage in flippant joking and associated humour. She was polite and friendly and quite co-operative when it came to providing information regarding her personal history however that did not extend to the question of completing psychological tests."

Furthermore his Honour commented, having observed the plaintiff in the witness box for

some time, that he was impressed by her intelligence and alertness.

His Honour also observed:

"Dr Jolly described her as having a strong personality and I think this description accurately describes plaintiff both pre and post accident. I find she has become a little more aggressive than she was before the accident. I find that both pre and post accident she has at all times had a very assertive personality."

Mr Cheetham describes limited skills, and it is very difficult to understand how she came to

be employed upon a salary which was increased from time to time up to a level of about $40,000

per year. Whatever the explanation it appears that loss of capacity to obtain and keep employment

of this kind cannot be blamed on the accident.

In short, whilst some of the medical evidence suggests a serious brain injury, his Honour was

not bound to accept that there remains a serious level of permanent disability. Whilst two views

were open on the severity of the neurological injuries, his Honour was entitled to act on the view of

Dr Cameron.

The injuries to the plaintiff's spine were serious, but there has been a good recovery. There

is no reason why his Honour was not entitled to accept, as he did, the evidence of Dr Morris. This

was to the effect that she now has a permanent disability of 20 percent of the thoracic spine. The

neck injury was essentially a "muscle type injury", and in the end is not significant. Her main

complaint now is of mid to low back pain. Dr Morris further considered:

"With the injury to her thoracic spine, she would be limited in the nature of the work that she could do. She would not be able to do any bending or lifting. Sporting activities will also be curtailed. This disability, as I have mentioned, will be permanent. She may get degenerative changes in the area but this will not really alter her disability."

He considered that her working life would continue until about age sixty, with the possibility that it

may be cut back by a couple of years if degenerative changes occur.

Some insight into her capacity may be gleaned from her performance over the period of

thirty-three months whilst employed at Madgwicks. During that period she was absent "sick" for

only four or five days apart from bouts of influenza. She worked fairly long hours and was often at

work until 7 p.m. It is true that she lay down from time to time, sometimes complained of back pain and took pain relievers. Examined as a whole, this evidence suggests a degree of pain and disability,

but not of a seriously disabling level.

Finally it is necessary to consider whether, on the view taken of the evidence by the learned

trial Judge, the amount awarded was manifestly inadequate.

The amounts allowed in respect of pain, suffering and loss of amenities add up to $57,000.

Whilst the injuries were serious, there has been a good recovery. She has lost the sense of

smell and her sense of taste is also affected. There are some neurological consequences, but, on the

evidence that has been accepted, these are not affecting her performance to any very marked

degree, and there has been no gross change to her personality. The back injury has left her with

some physical limitations, but once again these are not of gross degree. The injuries and their

consequences are serious enough to require a substantial award for pain, suffering and loss of

amenities, but it is impossible to regard the allowance of $57,000 under this head as inadequate.

For future lost earning capacity his Honour awarded $90,000. The evidence presented on

her behalf fails to show much economic success before the accident other than what she earned

from her escort/prostitute activities. Indeed, the total of the earnings between leaving school at age

fifteen up to the time of the accident (age twenty-five) disclosed by her for the purposes of the tax

amnesty came to $7000. It would seem that that was understated, but on the case presented by

her, details are lacking about what seems to have been her true earning capacity. No case was

presented of diminished earnings as a prostitute, and indeed the extent to which her capacity to earn

from such activities has been affected by the accident would be highly arguable. In fact her post-

accident earning activities have been relatively successful when compared with her pre-accident

activity. It may be that her employment at Madgwicks was a lucky one-off incident and that it will

not be repeated. Even so, this is not a case which demonstrates a high level of future economic loss.

It is best viewed as a case demonstrating a general diminution in earning capacity as a consequence

of some physical limitations, and minor to moderate effects of an initially serious neurological injury.

The plaintiff was thirty-two years old at the time of trial, and did not demonstrate any particular earning capacity that could safely be projected for a long period (such as to age sixty).

In all these circumstances it seems to us that the award for future economic loss of $90,000

could not be described as low.

Similarly, upon the evidence accepted by the learned trial Judge, the allowance for future

domestic assistance, massage treatment and surgical treatment are not capable of attack.

The award as a whole cannot be regarded as manifestly inadequate. The judgment should

of course be corrected to include the omitted special damages and interest. This requires a

substituted judgment for $276,635. Otherwise the appeal should be dismissed with costs.