Stephens v O'Connor No. DCCIV-96-1353 Judgment No. D3816

[1998] SADC 4005

STEPHENS v O’CONNOR

Judge Robertson

Civil

On 5 April 1995 the plaintiff, who was 37 years of age at the time, was injured in a motor vehicle accident which occurred on Smyth Road near Tanunda (“the accident”).  The accident occurred about ten in the morning on what was a fine day.  The plaintiff was travelling in an easterly direction on Smyth Road on her way to her restaurant which she operated in Tanunda.  She conducted the restaurant under the name of “Crackers”.  The vehicle she was driving came into collision with an ambulance, which was travelling in a westerly direction on Smyth Road, at a point on the road opposite the business premises of Smyth Road Irrigation.  The plaintiff alleges that a truck travelling in an easterly direction along Smyth Road, and being driven by the defendant, turned across her path towards the Irrigation premises, causing her to swerve into the ambulance which was following the truck on Smyth Road.  The plaintiff claims that the injuries she suffered in the accident resulted from the negligent driving of the defendant.  The plaintiff brings this action seeking damages for personal injury, loss and expense. The defendant denies negligence.  Alternatively the defendant claims contributory negligence against the plaintiff.

As I said, the accident happened on Smyth Road opposite the entrance to the Smyth Road Irrigation premises.  At that point, Smyth Road is a straight stretch of road running approximately east/west.  It is a two carriageway road; one in each direction.  The irrigation premises is on the northern side of the road.  On the southern side there is open country.  The plaintiff was familiar with the road as she travelled it from home to the restaurant most days. 

The plaintiff said that when she reached the flat section of a crest in the road some distance west of where the collision occurred, she observed a tipper truck stationary or close to stationary on the carriageway for west bound vehicles facing in a westerly direction.  She said she could not remember whether the right hand indicator light of the truck was operating.  She said that she was travelling at about 80 to 90 kilometres per hour.  The speed limit at that stretch of the road is 100 kilometres per hour.  The plaintiff said that as she was approaching the point where the truck was standing it commenced a right hand turn across the side of the carriageway on which she was driving.  The truck had been stationary at the time it commenced to turn.  She said she had travelled between a third to half the distance from the point where she first saw the truck when it began to turn towards the driveway of the irrigation premises on the northern side of the road.  She had not reduced her speed at this time. The plaintiff said she then applied her brakes hard and swerved to the right to avoid colliding with the truck whose position was at that point obstructing her side of the road.  This manoeuvre caused her motor vehicle to move to the carriageway for west bound vehicles.  As the front of the plaintiff’s vehicle passed behind the rear of the truck, the plaintiff said that she saw an ambulance on the carriageway for west bound vehicles.  She did not know whether it was moving or stationary.  She said that she then manoeuvred her vehicle to the left in an attempt to avoid colliding with the ambulance, however the plaintiff was unsuccessful and her vehicle collided with the front section of the ambulance.  The plaintiff said that at the point of impact with the ambulance her vehicle had partially returned to the correct side of the road.  She said that she had not seen the ambulance at any time until her motor vehicle was passing the rear of the truck.  The plaintiff said that at the time she manoeuvred her vehicle to pass the rear of the truck, most of the truck was still on the carriageway for east bound traffic.  The truck was at that time generally facing in a northerly direction.

The plaintiff said that after the collision her legs were momentarily trapped under the dashboard of the car.  Ms Stephens said that she extricated her legs from under the dashboard and then pulled herself through the passenger side door.  She said that as she alighted from her motor vehicle, the truck was coming to halt in the driveway of the Smyth Road Irrigation premises.  She said that after the accident she heard the driver of the truck say to a police officer who had attended the scene of the accident, that he was not aware of the presence of her vehicle on the road until he heard a squealing of brakes. 

Prior to the accident the defendant said he had worked at Smyth Road Irrigation for about three years.  On the occasion of the accident he was returning to the premises in an International tip truck.  The truck was approximately 5 metres in length and about 2.4 metres wide.  The defendant said that he first saw the plaintiff’s motor vehicle a considerable distance from where the accident occurred.  He was travelling in a westerly direction towards the main entrance to the Smyth Road Irrigation premises.  He said that as he approached the driveway of the main entrance, which he intended to turn into, he activated his right hand turn indicator.  Thereafter he commenced to gradually turn across the carriageway into the driveway.  He said that at the time he commenced to turn the plaintiff’s vehicle was approximately 100 metres from his vehicle.  He said his speed was about 30-35 kilometres per hour at that time.  The defendant said that he had actually passed through the main entrance and entered onto the business premises when he heard the squealing of brakes.  He estimated that the rear of his truck was approximately ten metres from the edge of the bitumen at the time when he heard the squeal of brakes.  After the squeal of brakes, the defendant said he heard a bump of two vehicles colliding.  He said that he could not remember saying to a police officer at the scene of the accident that he was not aware of the plaintiff’s presence on the road until he heard the squeal of tyres.  He denied that he only became aware of the presence of the plaintiff’s on Smyth Road when he first heard the squeal of the tyres resulting from the braking by the plaintiff.

In my opinion, and I so find, that the defendant executed the right hand turn at a time when the distance between the plaintiff’s vehicle and the defendant’s vehicle was not sufficient to allow him to clear the carriageway before the arrival of the plaintiff’s vehicle.  In other words he turned across the path of the plaintiff’s vehicle when it was unsafe to do so.  I do not accept the  defendant’s evidence that he was off the bitumen at the time he heard the squeal of brakes.  The defendant’s evidence that his vehicle was 10 metres from the edge of the bitumen at the time that he heard the sound of the brakes is totally implausible.  If that were the case then there would have been no necessity for the plaintiff to apply the brakes.  I accept the plaintiff’s evidence that at the time she applied her vehicle’s brakes and commenced her manoeuvre around the rear of the defendant’s vehicle that the bulk of the defendant’s truck was still on the carriageway for east bound traffic of Smyth Road.  I accept the defendant’s evidence that his right hand indicator was operating shortly before he commenced to turn his truck.  I also find that it was more probably than not that the defendant’s truck was mobile immediately prior to the truck commencing to turn.  The plaintiff was mistaken about that.  However, I do not accept the defendant’s evidence of the speed he was travelling.  To describe it as an estimate is, in my opinion, to put too high a value on it.  I am only prepared to find that the defendant slowed down before he commenced to execute the right hand turn.

I have mentioned that the plaintiff overheard the defendant informing the police officer who attended the scene that he was not aware of the presence of the plaintiff’s motor vehicle until he heard the squeal from the tyres.  The defendant said he could not remember if he said anything like that to the police officer.  The defendant’s evidence was that he had first seen the plaintiff’s vehicle some distance back from the point where he commenced to turn.  I have no reason to doubt that the plaintiff heard that statement or something similar.  I was not told the context in which the statement was made.  It is possible that what the defendant said related to the proximity of the plaintiff’s vehicle at the time he commenced to turn.  Apart from that statement it is clear, in my view, that the defendant turned his vehicle across the path of the plaintiff’s vehicle when it was totally unsafe to do so.  The defendant was negligent in so doing.  His negligence caused the plaintiff to suffer injuries.

Mr Crocker, counsel for the defendant, submitted that the plaintiff’s negligence significantly contributed to the accident and thus the injuries she suffered.  He said the plaintiff must have been aware that the truck was intending to execute a right hand turn because it had its right indicator light operating.  I pause to state that as I have found that there was nothing which obstructed the plaintiff’s view she probably observed the indicator light operating.  Mr Crocker submitted that the circumstances which confronted the plaintiff required her to engage in defensive driving.  He submitted that defensive driving obliged the plaintiff to reduce the speed of her motor vehicle as she approached the defendant’s vehicle.  He said she could not assume that the driver of the truck, who was indicating that he intended to turn right into the irrigation premises, had seen her.  He said, she could not assume that the defendant would bring his vehicle to a halt in the centre of the road to allow her safe passage past his vehicle. 

In my opinion the circumstances which presented themselves to the plaintiff did not oblige her to reduce her speed on observing the defendant’s vehicle approaching the driveway with its right indicator flashing.  She was travelling within the speed limit for that stretch of road.  There was nothing to impede the defendant’s view of vehicles travelling towards him in an easterly direction.  It was a fine day.  The plaintiff was entitled to assume that the defendant would not turn across her path when it was unsafe to do so.  In my view the plaintiff was not required to engage in defensive driving in the manner outlined by Mr Crocker.  In my opinion her failure to reduce her speed was not negligent in the circumstances. 

There is one further matter I should raise on this subject.  Mr Crocker did not indicate the speed the plaintiff should have reduced to in order to meet the demands of defensive driving.  He produced no evidence that if the plaintiff had slowed down to a specified speed that in so doing the accident may have been avoided.  In the absence of such evidence, in my view, that is an additional reason to find that she was not negligent.  For those reasons I find that the plaintiff was not guilty of contributory negligence.

The plaintiff was injured in the accident.  She was transported to the Tanunda Hospital where she underwent x-rays and her injuries were treated.  She was allowed to go home on crutches.  The plaintiff suffered the following injuries:-

·A soft tissue injury to and bruising of the left shoulder

·Soft tissue ligamentous injury to the right ankle

·Soft tissue ligamentous injury to the cervical spine

·Damage to the left knee

Following x-rays there were no fractures diagnosed to the knee or ankle.  However, in May 1995 she underwent a bone scan which confirmed a clinical diagnosis by Mr John Sweeney, orthopaedic surgeon, that she had suffered a fracture of the inferior pole of the patella of the left knee. 

The plaintiff’s right ankle was swollen, stiff and sore.  Immediately after the accident it was strapped.  The ankle remained stiff and sore for some months but by the end of 1995 the plaintiff was suffering no problems from the ankle.

The plaintiff said that for about five to six months she suffered acute pain from the injury to her shoulder.  The shoulder gradually settled down although she still suffers some residual disability.  The plaintiff said that the major residual problem from the shoulder injury is that she is unable to bear any weight when her arms are extended.  She said that she has difficulties obtaining objects from high cupboards.  She said that she still experiences some soreness and stiffness in the shoulder. 

With regard to the injury to the neck, the plaintiff said that within the first year the problems with her neck diminished, although she still continues to suffer some soreness on the left side of her neck.  She indicated that it was a constant soreness not an intermittent one.  However, she pointed out that it was a soreness in contrast to pain.  She had indicated that initially it was very painful for some months but she no longer suffers pain only a soreness.

The plaintiff said that after the accident she suffered from quite debilitating headaches.  She said that she had not suffered from headaches of this nature prior to the accident.  She said that the pain travels from the left side of her neck and across the left side of her head.  The plaintiff said that the headaches can last for two days although some have lasted for as long as ten days.  She said that she still suffers from these headaches although they do not appear with any particular frequency.  The plaintiff said that the headaches do not restrict her activities and she does not regard them as a major problem.

It is the plaintiff’s case that her major problem arises from the injury to her left knee.  Following the accident, the knee was badly swollen.  It was initially strapped.  Doctor Urlwin, the plaintiff’s general practitioner, recommended that after the swelling disappeared that she should exercise her knee with weighted lower leg lifts which involved bringing the foot up to the level of the knee.  She said that she undertook these exercises and they were excruciatingly painful.  At this point the fracture of the lower pole of the patella had not been diagnosed.  Shortly after the accident she commenced physiotherapy treatment for the knee. 

At the end of May she consulted Mr John Sweeney following a referral by Dr Urlwin.  Mr Sweeney thought she had a fracture of the lower pole of the patella.  This was subsequently confirmed by a bone scan. Mr Sweeney recommended that she cease lower left leg lifts of the type prescribed by Dr Urlwin and replace them with weighted straight leg lifts.  She followed his recommendation.  During this period the plaintiff was travelling to the beach a couple of times a week for long walks through the water to try and strengthen her legs.  She also took long walks during the day in the hope of achieving the same objective.  The plaintiff said that during this period the knee was not improving greatly.  She said she was suffering a great deal of pain.  The knee frequently gave way on her, causing her to fall.  The plaintiff said that she was unable to return to her work as a chef in the time following the accident.  Mr Sweeney had informed her that he was hopeful that the knee would improve in the short term and that she could then return to her work.  However, the plaintiff said that the problems with her knee persisted.  The plaintiff said that she was continuing to undertake physiotherapy treatment and was continuing to do her leg exercises.

In late October 1995 Mr Sweeney offered the plaintiff the options of waiting for another six months to see if the knee progressed or undergoing surgery to the knee immediately.  She chose to undergo surgery and as a result, Mr Sweeney referred her to Mr Martin, an orthopaedic surgeon.  At that time Mr Sweeney was no longer practising surgery.  On 7 November 1995 Mr Martin performed an arthroscopy on the plaintiff’s left knee.  I will return to the arthroscopy in more detail shortly.

Following the arthroscopy the plaintiff said that she immediately recommenced her physiotherapy treatment and recommenced the straight leg lifting exercises that she had previously undertaken.  At the time she underwent the surgery to her knee the muscle bulk of her left thigh was less than her right thigh.  This problem had existed for some time.  The plaintiff said that the pain in her left knee changed following the surgery.  Previously she described the pain as a strong jabbing pain each time she moved the joint.  She said she did not form an opinion regarding the precise position of the pain, her memory was simply that she suffered strong jabbing pains.  However, following the surgery that pain was no longer evident.  The plaintiff said that she suffered and continues to suffer a great tenderness over the site of the fracture and that there is a very deep seated pain in the joint itself.  She described it as a constant deep aching pain.  She described the pain as extreme in movements such as attempting to squat or on kneeling.  The plaintiff said that the knee had not given way as regularly as it did before the surgery.  She estimated that the knee had given way and caused her to fall about ten times since the accident.  She said that in some of the falls she had suffered some bruising.  In her view, since the surgery, the feeling that she had of the knee being slack and liable to give way has lessened substantially.  However, she said that she still has a fear of falling.  She said that she uses a walking stick when she goes out.

It was the plaintiff’s evidence that it was quite hard to think of any area of her life which has not been affected by the problems arising from her knee.  She said that the knee is painful to stand or walk, particularly on hard surfaces, for any length of time.  The plaintiff said she finds it uncomfortable doing the weekly ironing.  Standing for an hour causes discomfort.  The plaintiff said that on driving from the Barossa to Adelaide, which she estimates takes about an hour, she needs to stop the car and alight several occasions in order that she might just stretch and move her leg about to relieve the discomfort.  She said that when sitting, moving her leg about relieves the pain.  The plaintiff said that she finds it necessary to stand on occasions when sitting and move around to reduce the discomfort.  The plaintiff said that climbing stairs causes her great pain.  On descending stairs, the plaintiff said that it was not as painful, however, she needs to be careful because of the potential for her leg to give way.  She said she has similar difficulties in climbing ladders as she does with stairs.

The plaintiff said that there are many other activities which she cannot now undertake that she could before the accident.  Prior to the accident she enjoyed bushwalking.  The plaintiff said she can no longer undertake bushwalking now.  She said that before the surgery performed by Mr Martin she was able to walk quite long distances, but with some difficulty.  She said that on occasions she went bushwalking for about two hours.  She described it as not being a pleasant experience but did it for the sake of the knee.  However, the plaintiff said she can no longer go bushwalking.  Prior to the accident the plaintiff had taken a number of walking trips in Switzerland.  She said she is now restricted when it comes to gardening and house maintenance.  The plaintiff said that she can weed for a limited time.  She can mow the lawns although she has to break the lawn mowing up into management periods.  House maintenance, which requires climbing ladders cannot now be performed.  For example, she cannot now clean out the gutters of her house.  She said that every job that she did around the house has now been compromised by her disability.  Finally, the plaintiff said that she is unable to pursue her occupation as a chef.  I will return to this subject matter a little later.

A number of medical practitioners gave evidence regarding the plaintiff’s injuries.  Some were called by the plaintiff and some by the defendant.  I mentioned earlier that Dr Urlwin, the plaintiff’s general practitioner, undertook the initial management of the plaintiff.  He said that he initially diagnosed soft tissue injury to the left knee.  She consulted with him on many occasions.  He observed the plaintiff’s distress regarding the future of her restaurant business.  He said that he did not observe any non organic factors in her presentation.  It was Dr Urlwin that referred the plaintiff to Mr Sweeney.

Mr Sweeney first saw the plaintiff on 31 May 1995.  Earlier I stated that Mr Sweeney provisionally diagnosed that the plaintiff had suffered a fracture of the lower pole of the left patella and that a bone scan had confirmed this.  Mr Sweeney was of the opinion that the plaintiff’s knee symptoms are as a result of tendonitis or inflammation to the ligamentum patellae.  He also felt that there might be some early degeneration in the articular cartilage. He acknowledged that the arthroscopy performed by Mr Martin did not reveal any obvious articular damage.  However, he said that the arthroscopy found scarring below the ligament and he said that sometimes when it heals the articular cartilage may look relatively normal but still have some degeneration.  Mr Sweeney said that he felt that the plaintiff had made an honest attempt to rehabilitate herself through exercises.  He said that the thigh muscles had been quite wasted early but they had now recovered to only a centimetre difference.  He said that the building up of the quadricep muscles in the thigh assisted in the healing of the knee although the building up of such muscles does not mean that the knee was going to be comfortable.  In his opinion, the disability with which the plaintiff presented with her knee, meant that she should avoid recurrent bending, standing continuously all day, kneeling, squatting, climbing and ascending stairs and lifting weights where she is required to use her legs.  It was Mr Sweeney’s opinion that the injury to her knee prevented her from continuing her occupation as a chef.  Finally, Mr Sweeney said that he did not observe any non organic factors which might have been amplifying the plaintiff’s symptoms and felt that she had been consistent in her complaints and when he physically examined her.

I have mentioned that Mr David Martin performed arthroscopic surgery on the plaintiff on 7 November 1995.  During the surgery, Mr Martin found that the fat pad, sometimes known as the Hoffer’s fat pad, was inflamed and scarred.  He resected the amount of tissue which he thought was scarred and injured.  Mr Martin said that an ultrasound of the left patella tendon undertaken later showed a small focus of calcification below the inferior pole of the patella. He was of the opinion that this could play some role in the presentation of the plaintiff, although it was only a minor problem, Mr Martin said that the ultrasound report indicated that no tendonitis had developed at that stage.  Mr Martin’s opinion was that there was no obvious mechanical cause for the plaintiff’s ongoing pain in the left knee of the nature which she described.  He said that there was no obvious swelling within her joint or any degeneration of articular cartilage.  Mr Martin said that he felt that she had developed a pain syndrome which was contributing to her ongoing pain.  He said that the genesis of this pain was organic.  Mr Martin was of the opinion that there were no emotional factors or non organic signs that were amplifying or perpetuating her symptoms. 

Mr Martin expressed the view that the plaintiff was only capable of performing sedentary type work.  He said that if the pain did not improve from its current level then she would be permanently incapacitated from operating as a restaurateur as she had before the accident.  He said that he observed when he last saw the plaintiff in March 1996 that the quadricep muscle of the left leg was still wasted.  He said that some people with quadricep wasting suffer knee pain through lack of support of the knee.  In his view if the knee became less painful then the function of the knee would improve.  Mr Martin was of the opinion that when he last saw her there was nothing further he could do to assist in the alleviation of the plaintiff’s pain.

In June 1996 the plaintiff was seen by Mr Lloyd Coats, orthopaedic surgeon.  She was referred to Mr Coats by her solicitors.  Mr Coats was of the opinion that there was damage to the articular surface of the patella towards the lower pole.  He said that the plaintiff’s presentation was consistent with such an injury.  He felt that the injury could cause enhancement of degenerative change.  He said the injury to the knee was permanent.  Mr Coats stated that because of the injury the plaintiff should avoid activities particularly in the squatting position, kneeling on the knee and heavy lifting involving bending the knees.  It was his opinion that the plaintiff was not fit to return to her pre-accident work as a restaurateur nor was she fit to perform work as a caterer.  He said that any work which involved her standing on her feet, bending and lifting was not within her capacity.  He said that he had no doubt that she could stand for a period of time but he queried whether she could do that day after day.  Mr Coats was of the opinion that she was basically only fit for sedentary type of work.  He was of the view that there were no non organic factors clouding her presentation or amplifying her symptoms.  He explained that by non organic he meant that her presentation was not as a result of psychological problems consequent upon injury or simply fabrication.

The plaintiff was referred to Dr Geoffrey Jose, orthopaedic surgeon, by the solicitors for the defendant.  He first saw the plaintiff for examination on 29 August 1996.  Dr Jose stated that he did know why she was complaining of pain.  It was his view that she suffered a very minor extra-articular fracture.  He said that he would have expected her to suffer pain from such an injury for about three to four months but beyond that he could not explain it.  Dr Jose was of the view that if she had built up her left thigh by appropriate exercises then this would have vastly reduced her symptoms.  He felt that she had not applied herself to her exercises in the past as diligently as she might have.  It was his view that there was no observed articular surface damage in the arthroscopy performed by Mr Martin and that it was unlikely that he would have missed that given the nature of the plaintiff’s injury.  It was Dr Jose’s opinion that after the plaintiff strengthened her knee muscle that there would be no reason why she could not return to her pre-accident work in her restaurant.  He said that on the two occasions that she consulted with him she gave him a history similar to the history that was provided to the other orthopaedic surgeons.

The final medical practitioner to give evidence was Mr Marshall, another orthopaedic surgeon.  He first examined the plaintiff on 12 September 1997 at the request of the defendant’s solicitors.  He said that there was no specific pathology to explain the pain which the plaintiff described.  It was his view that the activities which caused her problems were due to the pain that she suffered on undertaking a particular activity and not because there was any evidence of pathology which prevented her from performing that activity.  Mr Marshall said that in his experience there were people who had suffered from what is described as “dashboard injuries” who have ongoing pain which cannot be explained from a pathology perspective, similar to some people who suffer whiplash injuries.  He felt that the plaintiff probably fell into that group, although he said that her complaints were far greater than he had observed with others who he had seen suffering from dashboard injuries where there was no specific pathology evident for the ongoing complaints.

Mr Marshall said that his best hypothesis was that the plaintiff’s symptoms were as a result of soft tissue trauma to the patella tendon and the sub patella tendon area.  He was of the opinion that there was no intra-articular damage to the left knee.  He based that view on the combination of the arthroscopy and the magnetic resonance imaging results.  He accepted that there was a possibility that there may have been some damage to the articular surface which was not seen during the arthroscopy.  However, in his view it would only be a minor defect.  Mr Marshall was of the opinion that the plaintiff should undergo a regime of exercises to improve muscle tone and strength.  He said that even if the plaintiff was able to achieve improvement in muscle tone and strength this was no guarantee that it was going to address the plaintiff’s pain problem.  Mr Marshall said that with the plaintiff’s current symptoms she could not return to her pre-accident work as a chef.  He said that she would not be fit for any form of employment involving standing, lifting, twisting, climbing stairs.  It was his opinion that she was only fit for work of sedentary nature.  As far as the future is concerned, he said that he had to go on what she said about her disabilities and that on that basis she would never return to work as a restaurateur.

Before I turn to provide my views on the plaintiff’s credit I need to refer again to the medical evidence.  As I mentioned earlier Mr Martin’s evidence was that having performed the arthroscopic procedure he was of the opinion that the knee looked very good.  During the surgery he found nothing in the mechanics of the knee which required attention other than the problem I mentioned earlier.  I accept that evidence.  He said she was suffering from a pain syndrome.  His view was that the pain syndrome’s genesis was organic.  Mr Sweeney and Mr Coats each felt there was pathology which was causing the plaintiff’s problems, albeit that there were differences in their opinions.  Neither Dr Jose or Mr Marshall agreed with either of the opinions of Mr Sweeney and Mr Coats.  Dr Jose and Mr Marshall were both of the opinion that there was no identifiable pathology which would explain the plaintiff’s presentation.  It was accepted by Mr Sweeney, Mr Coats and Mr Marshall that there is a possibility in arthroscopic surgery for a surgeon to overlook some problem.  I should at this point observe that it is not the plaintiff’s case that there are any psychological or psychiatric factors which intrude into her presentation.  It is clear from what I have recounted that there is a conflict in the medical opinions given in evidence.

In situations where there is a conflicting medical opinion it is timely to recall the comments of Bright J in Dibbins v Dibbins (1978) 80 LSJS 165 at 165-166:-

“This case is an example of the useful principle that where medical evidence is in conflict the primary consideration may be the credibility of the plaintiff.  True, the medical specialists, with their skill and experience, can move parts of the body so as to test the range of involuntary movement.  They can also, by means of diagnostic aids, detect the presence or perceive the apparent absence of physical abnormalities which might be the cause of claimed symptoms.  They can also, with their knowledge of anatomy, give a valuable opinion as to whether claimed symptoms are consistent with each other or with a suggested physical cause.  But ultimately we must come back to the symptoms.  Of course, anatomical signs detected by the medical specialists or the absence of such signs may tend to establish that the patient is telling untruths about or is exaggerating her symptoms.  But it is the symptoms that are central not the signs.  I hope that I am not being unduly idiosyncratic when I say that if reliable independent evidence clearly indicates that the patient is credible, one does not disregard his or her complaints merely because the signs suggest that little or nothing is seriously wrong.  Failure to recognise this simple truth has, I should think, led to the death or invalidity of many patients.  Medical science has advanced very far but it is still not always capable of producing unqualified and indisputable answers.

Very often there is not reliable independent corroboration of the patient’s account.  In such a case, obviously, the medical evidence is of the greatest importance, especially if the medical evidence is all one way.  But if the doctors disagree the judge still has to decide, and he may not make it his first concern to assess the relative credibility of the doctors.  I think he may first assess the evidence of the patient.”

The problem which arises for resolution here is further complicated by the opinion of Mr Martin that following the surgery the plaintiff’s knee was very good. 

The defendant says that the plaintiff has greatly exaggerated her complaints and disabilities.  I will come to this submission in detail in a moment.  However, at this point, having dealt with the evidence of the medical practitioners it is relevant to observe that not one of the medical practitioners indicated that the plaintiff was exaggerating her symptoms.  Mr Marshall said that the plaintiff presented as the most extreme case he had seen for a dashboard injury, absent any pathology which would explain the level of complaints.  However, he did not offer the opinion that he thought she was exaggerating.  Furthermore, Mr Sweeney, Mr Coats and Mr Martin all considered that there were no emotional factors or non organic factors present in the plaintiff’s presentation.  Nor did Dr Urlwin, her general practitioner.  It is also of some significance, as Dr Jose observed, that the history she provided to each surgeon was consistent. 

I now turn to the question of the plaintiff’s credit.  Her credit was strenuously challenged by the defendant.  It was Mr Crocker’s submission that the plaintiff has deliberately exaggerated the extent of her pain and disabilities and particularly the problems she is experiencing with her left knee.  He submitted that in the absence of any identifiable pathology which could be causing her complaints about pain and restriction that I am left with having to accept her evidence alone as to the level of her disability.  Mr Crocker submitted that the plaintiff’s evidence on matters other than her injuries including the issue of her failure to pay the correct amount of Group Tax in the financial years 1992 and 1993 placed a serious question mark over the plaintiff’s credit.  He said that her evidence on this and other subjects canvassed during cross-examination was so lacking in credit that I should find that in the absence of a proven pathology that the plaintiff was significantly exaggerating her disabilities.

In considering the issue of the plaintiff’s credit there is one submission made by Crocker which I need to specifically address.  As I have just said one of the attacks on her credit arose out of evidence she gave concerning the fact that the plaintiff did not transmit to the Australian Taxation Office (“ATO”) the correct amount of Group Tax deducted from the wages of employees of the restaurant for the financial years ended June 1992 and June 1993.  The plaintiff was cross-examined relating to her failure to pay the total amount of Group Tax and her written Applications to pay the outstanding amount by instalments.  I do not propose to refer to that evidence in detail.  Counsel for the defendant submitted that the plaintiff was untruthful when she gave evidence that she relied on her accountant to advise her of the amount of Group Tax to be transmitted each month.  Furthermore he submitted she was untruthful when she said that she had signed two ATO Application forms relating to the repayment of the Group Tax in blank and that the contents of the forms were completed by her accountants.

Counsel for the defendant contended that the evidence relating to the Group Tax issue was relevant to the question of whether the restaurant business was as successful financially as he said the plaintiff had indicated in her evidence. Mr Crocker also said this evidence was relevant generally to the plaintiff’s credit.  He submitted that the evidence regarding the failure to pay Group Tax demonstrated that she was prepared to cheat on her taxation obligations and that when confronted with the evidence relating to the Group Tax she was prepared to be untruthful.  Mr Crocker further submitted that as the accountant handling the plaintiff’s affairs at the time was not called then I should draw an adverse inference in accordance with the principle laid down in Jones v Dunkel (1959) 101 CLR 298.

Some helpful observations regarding the principle in Jones v Dunkel are found in the New South Wales decision of Payne v Parker (1976) 1 NSWLR 191. Glass J A at pages 200-202 set out a number of propositions which he said could be deduced from the many authorities which have considered the principle. It is unnecessary to set out each proposition. The following propositions are sufficient for present purposes. At pages 200-202, his Honour said:-

“(1).. The rule is a principle of the law of evidence whereby a particular form of reasoning is authorised.

(2)     The reasoning which is permissible involves the treatment of a failure to adduce evidence as a reason for increasing the weight of the proofs of the opposite party or reducing the weight of proofs of the party in default…

(6)     Whether the principle can or should be applied depends upon whether the conditions for its operation exist.  These conditions are three in number: (a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c)  his absence is unexplained.”

In considering this issue there is one further passage in Payne which, in my opinion, provides guidance.  At page 197 Hutley JA said:-

“A Jones v Dunkel direction should not be given, unless there is actual evidence before the jury that the witness whose absence is to be the subject of comment is not available to the party seeking the benefit of inferences from his absence.  Otherwise the opportunities for grave injustice will be open.  There is a great difference in directing the jury, where a party, or a person clearly under the control of a party, is not called, and where the only basis for inferring that a witness is not equally available is a jury’s supposed judicial knowledge.  This, in many cases involving professions, merely gives prejudice and suspicion full play.

Similarly, in my opinion, the evidence should point to the witnesses not only being available, but having relevant knowledge to put before the Court.”

The observations of both Glass JA and Hutley J A in Payne were approved by the New South Wales Court of Appeal in Commonwealth of Australia v McLean (Judgment delivered 31 December 1996).

The accountant who was attending to the plaintiff’s accounting needs at the relevant times was Mr John Stankevicius of the firm of Mick Hislop and Associates.  Some time about the middle of 1995 the plaintiff transferred her accounting and taxation business to the accounting firm of Howarth S.A. Pty Ltd.  There were a number of documents relating to the Group Tax issue tendered by counsel for the defendant.  Those documents came from the file of Mick Hislop and Associates relating to the plaintiff’s accounting and taxation affairs. 

In my opinion the circumstances which are present here do not lead me to the conclusion that I should draw an adverse inference in accordance with the principle in Jones v Dunkel resulting from the plaintiff’s failure to call Mr Stankevicius.  I have reached that conclusion on two bases.  The first is that in my view it would not have been expected that Mr Stankevicius would be called by the plaintiff.  His evidence would not advance the plaintiff’s case on the question of damages.  The financial statements of the plaintiff were in evidence as part of the plaintiff’s case.  The plaintiff had given evidence regarding the financial state of the business.  It was the defendant who was making the running in relation to the issue of financial state of the plaintiff’s business.  It was the defendant who was challenging the accuracy of the plaintiff’s evidence that the state of the business was “rosy” as far as she was concerned.  In those circumstances it could be expected that the defendant would be likely to call Mr Stankevicius if it felt that his evidence could assist its case.  The second ground on which I have formed the view that the Rule does not apply is that there is no evidence to suggest that Mr Stankevicius was not available to the defendant to call.  There is no evidence that would lead to the conclusion that he was under the control of the plaintiff.  The only evidence is to the contrary; the plaintiff ceased employing the firm of Mick Hislop and Associates as her accountants in 1995.  For those reasons I refuse to draw the adverse inference sought by counsel for the defendant.

I formed the view that the plaintiff was an intelligent person.  She gave clear and articulate responses to questions.  She was subject to a careful, detailed and searching cross-examination by Mr Crocker.  I found her evidence generally convincing.  I accept her evidence generally regarding the symptoms and disabilities she has described in her evidence.  I thought she attempted to answer questions truthfully.  In reaching my findings regarding the plaintiff’s credit I have considered all the evidence which Mr Crocker said demonstrated that the plaintiff should not be believed regarding the level of her symptoms and disabilities.  It is unnecessary to canvass each of the submissions made by Mr Crocker regarding the plaintiff’s credit nor is it necessary to deal with each topic of evidence upon which Mr Crocker founded his submissions.  Finally I should also indicate that I would not have altered my view of the plaintiff’s credit even if I had drawn the adverse inference which I referred to earlier and which was urged upon me by Mr Crocker. 

My view of the plaintiff’s credit is, to some extent, fortified by the medical opinion which did not suggest that the plaintiff was falsely exaggerating her symptoms.  Having reached the conclusion that the plaintiff was truthful in recounting the symptoms and restrictions she has experienced with her knee there is no need for me to resolve the differences of opinion between the medical practitioners.  I am satisfied that the plaintiff is suffering pain and disability as she describes it.  I am also satisfied on the balance of probabilities that the plaintiff’s problems have an organic genesis.  Three of the surgeons considered that to be the case.  The other two said they could not identify any pathology which could be the cause of the pain.  I did not understand them to be saying that they excluded an organic source as the cause of the pain.  If that is the effect of their evidence then I do not accept it.  In my opinion, the medical opinion that the plaintiff’s pain and disabilities are organically based is consistent with the plaintiff’s evidence regarding those subjects.  Furthermore, I draw attention to the medical opinion which pointed to the absence of any non-organic factors present in the plaintiff’s presentation.

I now turn to consider the question of damages.  The heads of damage claimed by the plaintiff are:-

·Pain and suffering and loss of amenities.

·Loss of earning capacity to the date of trial (past loss) and thereafter (future loss). 

·Expenses incurred in attempting to mitigate her loss.

·Medical and other expenses to the date of trial (Special Damages).

·Future medical expenses.

With regard to damages for pain and suffering and loss of amenities I have earlier referred to the plaintiff’s pain, discomfort and the physical restrictions she experiences.  Most of her problems arise from the injury to her knee, although there still remains some residual problems arising from some of the other injuries.  The most difficult problem arising in the assessment of this head of damage is the question of what the future holds with respect to the plaintiff’s injured knee.  Mr Sweeney’s evidence on this point was not entirely clear but, in my view, the effect of his evidence is that he considers the plaintiff is likely to continue to suffer from the problems she has described.  Mr Coats’ view  was that the plaintiff would have ongoing symptoms and disability with her knee of the nature she was suffering at the date of trial.  Mr Martin did not express an opinion directly on the issue.  It will be recalled that he diagnosed a pain syndrome.  He said that he had seen some patients suffering from a similar condition recover and some where the pain had not subsided.  In my view, the effect of his evidence is that he did not expect the plaintiff to recover from the pain in her knee and her disabilities.  Dr Jose felt that after the plaintiff further built up her muscle tone and strength, following leg exercises, her knee problems would diminish to the point that she could return to her occupation as a chef.  However, I observe that his opinion was out of step with the other medical opinions.  I will come to the question of leg exercises shortly.  Mr Marshall said that the plaintiff’s prognosis was guarded and that her symptoms would persist in their current state indefinitely.

Tied up with the future of the plaintiff’s left knee was the question of leg exercises to improve the tone and strength of her thigh muscles.  The plaintiff was criticised by Dr Jose who felt the difference in size between her left thigh and her right thigh indicated that she had not been diligently exercising.  As I said, his view was not generally in accordance with the other medical opinion which accepted that there had been significant improvement in muscle bulk and that was an indication that the plaintiff had been exercising regularly.  The plaintiff said she had been performing her exercises diligently.  I accept that evidence.

The medical opinion generally was that the plaintiff should continue to perform leg exercises with the object of improving her thigh muscle strength and tone.  It was accepted that thigh muscles with good tone and strength would reduce the possibility of the leg giving away.  However, the preponderance of medical opinion, which I accept, is that even if the plaintiff’s muscle tone and strength continued to improve that this would not be a panacea for her ongoing pain and disabilities.  As I mentioned earlier Dr Jose was of the opinion that her position would improve significantly.  I do not accept that opinion.  The best that could be said of the other medical opinion on the subject is that improvement in thigh muscle strength and tone may see some improvement.  In my view, the medical opinions lead to the conclusion, and I so find, that if the plaintiff is successful in further building up muscle strength and tone in her thigh there may be some improvement in her level of pain and some improvement in her current disabilities.  However, and I also find, that the plaintiff will continue to experience pain and discomfort in the knee to a significant degree.  I also find that the plaintiff will continue to suffer pain on squatting and kneeling which will restrict her capacity to engage in such movements.  The plaintiff will also continue to experience discomfort on standing for lengthy periods.  With regard to the other injuries I find the plaintiff will continue to suffer minor discomfort in her neck and shoulder.  She will also continue to suffer headaches occasionally.

It was the defendant’s case, at least initially, that the plaintiff was suffering from a conversion disorder.  A conversion disorder was explained as a condition where a person’s physical complaints are attributable to psychological factors.  Dr Neil Spence, a psychologist, called by the plaintiff, said the complaint is characterised by physical complaints including pain, which tend to be unresponsive to orthodox physical treatments.  The defendant’s case was founded on the opinion of Mr William O’Hehir, a psychologist who examined the plaintiff at the request of the defendant’s solicitors.  However, during the course of Mr O’Hehir’s evidence it became clear that he had not diagnosed the plaintiff as “experiencing some degree of Conversion Disorder”.  Mr O’Hehir’s evidence only went so far as to say that it was possible that the plaintiff was suffering from some degree of a conversion disorder.  In reaching that view Mr O’Hehir relied upon information contained in questionnaires which the plaintiff was purported to have completed.  However it turned out that the questionnaires were not completed by the plaintiff.  As a result, it is my view that Mr O’Hehir’s evidence on this subject is flawed as it was in part based upon irrelevant data.  Accordingly, I reject his evidence on this subject.   In any event, Dr Spence said that he was not aware of any evidence which pointed to the plaintiff suffering from a conversion disorder.  He disagreed with the opinion of Mr O’Hehir.  I accept the evidence of Dr Spence.  Accordingly I find that the plaintiff is not suffering from a conversion disorder. 

The plaintiff’s claim under this head of damages includes loss of amenities and enjoyment of life.  I have mentioned that the plaintiff can no longer undertake bushwalking, an activity which she pursued prior to the accident.  She can no longer involve herself in home maintenance to the degree she could prior to the accident.  Her evidence was that she enjoyed home maintenance work prior to the accident.  She also cannot pursue her activities as a chef.  She described cooking as her passion.  I accept that evidence.  She was fortunate to be able to earn an income from that passion.  To the extent that she has lost the capacity to continue to enjoy that passion she should be compensated under this head of damage.  I should make it clear that the damages under this head are confined to the loss suffered by no longer being able to enjoy the pleasures associated with pursuing her passion.  Of course, the question of her loss of capacity to work as a chef will need to be considered separately when I turn to consider her claim for damages for loss of earning capacity.

For the plaintiff’s claim for pain and suffering and loss of amenities and enjoyment of life there must be ascribed a numerical value pursuant to Section 35a of the Wrongs Act 1936.  The number I ascribe is 18.  For the purpose of assessing damages under this head it is agreed that the Prescribed Sum is $1450.  I therefore assess damages under this head at $26,100.

I now come to the plaintiff’s claim for loss of earning capacity both past and future.  To establish her entitlement to damages for loss of earning capacity the plaintiff must first establish that her earning capacity has in fact been diminished by reason of an injury caused by the negligence of the defendant.  Secondly, the plaintiff must establish that the loss or diminution of earning capacity is or may be productive of financial loss (see: Medlin v State Government Insurance Commission (1994-1995) 182 CLR 1 at page 3).

It was the opinion of each of the orthopaedic surgeons, apart from Dr Jose, that the plaintiff’s disabilities prevented her from resuming her occupation as a chef after the accident and will continue to prevent her from resuming as a chef in the future.  I accept the opinions expressed by those surgeons.  I do not accept the opinion of Dr Jose that if she strengthens her thigh muscles by exercises she will be able to perform the duties of a chef.  Accordingly, I find that the plaintiff’s knee injury prevented her from resuming her occupation as a chef prior to trial and that she is also prevented from employment as a chef in the future.  I also accept the opinion of the surgeons who said that since the accident the plaintiff has only been fit for occupations of sedentary nature and that position will remain in the future.

I mentioned earlier in these reasons that after matriculating and leaving school the plaintiff did not undertake tertiary studies.  Her first employment was performing gardening and odd job work.  She was at the time developing an interest in cooking.  She started preparing pates and terrines and selling her products to the department store, David Jones.  She also commenced a catering business in the Barossa Valley area.  The plaintiff operated a catering business for over ten years.  Whilst operating the catering business she established tea rooms at Marananga in the Barossa Valley for a short time.  She had also operated a store in Tanunda selling imported chocolates and cheese, again, for a short time.

In 1990 the plaintiff purchased a run down restaurant business in Tanunda.  She commenced to trade in May 1990.  Initially the plaintiff performed the duties as a chef and she employed one person to attend to all the duties in the front of the restaurant.  The restaurant was trading for lunch and dinner seven days a week initially and was generally full.  By the end of 1990 she needed to engage a further chef.  The demand for attendance at the restaurant continued and eventually she employed three chefs and additional staff.  The business continued at this level until December 1993 when the plaintiff changed the entire operation of the restaurant.  At that time she wound the operation of the business back to the point where she was the only chef.  She returned to where she began in that she undertook all the duties of a chef and also all the cleaning and maintenance of the restaurant.  The plaintiff employed only one person in the front of the restaurant as she had done in the beginning.  She also reduced the opening times to five nights a week.  Ms Stephens described this change in operation as a “sea change”.  The plaintiff continued to operate the restaurant at that level until she was injured in the accident. 

The plaintiff said she derived great pleasure in conducting the restaurant and the life style associated with such a business in the Barossa Valley.  She said she was fortunate to be able to utilise her passion for cooking as a means of operating a business.  It was a hobby from which she could earn an income.  The evidence disclosed that the restaurant had a substantial reputation.  The plaintiff said she had never thought of terminating her business.  She said that if she had thought about it she would have seen herself continuing to operate the restaurant in the future with the possibility of building accommodation behind the restaurant where she would reside.

Following the accident the plaintiff said she was advised by Dr Geyer, the general practitioner who she first consulted following the accident, to remain off her feet for five weeks.  The plaintiff immediately cancelled her restaurant bookings except for those who had booked during the period of the vintage festival in the Barossa Valley.  For the two week period of the vintage festival in April 1993 the restaurant remained open.  She employed a chef whom she had previously employed in the restaurant to attend to the chef’s duties during this period.  Ms Stephens explained that for the sake of the goodwill of the business she considered it essential that the restaurant remain open during this period.  Thereafter the restaurant closed.

The plaintiff said that during the period leading up to the time she underwent surgery she fully expected that it was only a matter of time that she would be able to re-open the restaurant.  It was her belief, which I accept, that during this period that the time would arrive where she would have the capacity to resume her chef’s duties.  This was the medical advice she was receiving from Mr Sweeney.  At the time of the surgery the plaintiff said that she realised that it was likely that there would be a substantial period of recovery and she then made a decision to attempt to sell the business.  She instructed business agents to sell the business in November 1995.  She was not successful in her attempt to sell the business.  From January 1996 it became even more apparent to the plaintiff that her recovery from the knee injury would be a long process.  Eventually, in June 1996 the plaintiff sold the freehold from which the restaurant had been conducted.  By that stage she had reached the decision that she would need to re-train herself because of the difficulties she was experiencing with her knee. 

In April 1996 she consulted with Dr Neil Spence for the purpose of obtaining a vocational assessment.  I will return to his assessment a little later.  After considering the assessment of Dr Spence and the options available to her the plaintiff commenced to study for the Advanced Diploma in Textiles Clothing and Footwear at the Para Institute at Salisbury at the beginning of 1997.  It is a three year full-time course.  The plaintiff’s evidence was that she would take four years to complete it.  At the date of trial she was continuing with the course.  The plaintiff hopes that the course will equip her to undertake work in the industries for which the course was relevant.  However, it is her intention to undertake such work on a self-employed basis.  I will also need to return to this later question later in these reasons.

In assessing the plaintiff’s claim for loss of earning capacity it is necessary to consider the financial performance of the plaintiff’s restaurant.  It was the plaintiff’s sole source of income at the date of the accident.  I have referred earlier to the plaintiff’s evidence that it was her intention at the time of the accident to continue to operate the business into the foreseeable future.  The financial statements of the restaurant were admitted into evidence.  Opinions regarding the financial performance of the restaurant were given by Mr Peter Gregg, an accountant called on behalf of the plaintiff, and Mr Christopher Jay, an accountant called on behalf of the defendant.  Mr Gregg produced cash flow projections of the business from 1996 to the year 2000.  Mr Day, counsel for the plaintiff, in his address, conceded that he could not rely on those projections.  In my opinion this was a correct and proper concession to make as the assumptions of fact upon which the projections were based were not established in evidence.   Accordingly, I reject the evidence of Mr Gregg regarding his financial projections.

The profit and loss statements for the completed financial years of the restaurant reveal the following net profit:-

·....... 1991             $20,634

·....... 1992                $2,381

·....... 1993                $5,924

·....... 1994             $14,012

I say completed financial years because the plaintiff operated the business for part of the financial year 1990 and part of the financial year 1995.  Mr Jay said that it was not appropriate to consider the financial results in those years as the restaurant only operated for part of a year.  I accept that evidence.

Before I come to assess the plaintiff’s damages for past loss of earning capacity there are two issues I must address.  The first is that the defendant asserts that the plaintiff has failed to mitigate her loss since the accident.  It will be recalled that the plaintiff has not taken up any form of income producing activity since the accident.  The second, which is partly tied up with the first, is that in assessing damages for past economic loss in what manner, if any, is the fact that the plaintiff embarked upon a tertiary course in 1997 to be taken into account?

Mr Crocker submitted, with respect to her damages for past loss, that the plaintiff should not receive any compensation for the period from April 1996 to the end of 1996 because she failed to mitigate her loss by failing to engage in some form of income producing activity during that period.  I am a little uncertain if that submission extended to the period commencing from the beginning of 1996.  I will address both periods.  He said, and it is not disputed, that the plaintiff had placed the business on the market for sale in November 1995.  Whilst the plaintiff did place the business on the market at that time, in my opinion, the evidence indicates that she had not at that time finally abandoned all hope of recommencing the business.  However Mr Crocker submitted, and in my view correctly, that by April 1996 when she saw Dr Spence she had made a decision that it was impossible for her to continue to operate the business.  She had by that time also come to realise that it was unlikely that a buyer for the restaurant business could be found.  The plaintiff did not seek to engage in any income producing activity after she had seen Dr Spence.  Mr Crocker submitted that even assuming the plaintiff’s disabilities prevented her from functioning as a chef or in any other form of employment which included activities which she had difficulty in performing that there were other avenues available to her to earn income.  One such source of income Mr Crocker suggested was producing pates and terrines from home as she had done some years before.

In my opinion, the plaintiff has not acted unreasonably in not engaging in any income producing activity during 1996.  During the period up to April 1996 the plaintiff had not entirely abandoned her hopes of recommencing the business.  After the surgery in November 1995 she was informed by Mr Martin that her recovery would take some time.  It is not entirely clear when she made the final decision that the restaurant business was no longer an option.  In any event, by April 1996 the die was cast.  She consulted Dr Spence.  He gave her advice.  She clearly needed time to consider that advice.  The decision she needed to make was quite momentous because she was about to sail into unchartered waters.  After leaving school she had only engaged in income producing work which focused on some forms of consistent physical activities including bending, squatting, standing and lifting.  That nature of work was no longer available to her.  The new course in her working life would involve a dramatic change from the past.  She was generally confined to work in which the emphasis was sedentary in nature.  Furthermore, during this time she was obliged to wind up her affairs regarding the business and she was in the process of selling the freehold from where the business operated. 

Mr Crocker did not point to any specific employment that the plaintiff could have undertaken in the entire period of 1996 or alternatively from April to December 1996 other than the cottage industry type activity to which I referred previously.  It will be recalled that the plaintiff lived outside Tanunda in the Barossa Valley.  Because of her disabilities the types of employment available to her were significantly restricted.  She had no training except in work which involved regular physical activity.  To expect her to establish some form of cottage industry business during this period is, in my view, unrealistic. It is also, in my view, unrealistic to expect she could have obtained work of a sedentary nature, apart from cottage industry type work during this period.  For all the reasons I have mentioned I reject the submission that the plaintiff failed to mitigate her loss for any part of 1996.

I now turn to the question of the manner, if any, which I should take into account the fact that in 1997 the plaintiff commenced tertiary study course, in my assessment of her damages for loss of earning capacity.  The duration of the course is three years full-time study.  The plaintiff said she would take four years to complete it. I was not told why she required the extra year.  For present purposes I am restricting this question to the assessment of damages for past loss of earning capacity.  In dealing with this issue I should indicate that in my view although the plaintiff has suffered a substantial loss of earning capacity she also still retains a considerable earning capacity.  I will consider the plaintiff’s earning capacity and what loss she has suffered in more detail shortly.  For present purposes it is sufficient to observe that as a result of the plaintiff undertaking her studies she has in effect deliberately adopted a course of action which prevents her from exercising her residual earning capacity.  In those circumstances the question to be considered is what allowance by way of damages is the plaintiff entitled to for the period from the beginning of 1997 to the date of trial?  Should she receive damages for loss of earning capacity assessed on the basis of the total loss of income she would have earned for that period if she had been operating the restaurant?

A not dissimilar problem confronted Judge Worthington in the decision of Langley v Adcroft, Blum & Kennedy (Unreported judgment delivered on 27 August 1996, No D3466).  Conceptually his Honour viewed the problem as one of a loss incurred in mitigating the damage inflicted by the defendant and not so much an item of damage caused by the tort.  His Honour at page 11 made the following observations:-

“In determining whether the expense incurred or loss suffered in mitigation should be awarded, it is not necessary to predict whether the attempt will be successful.   The question is whether the attempt itself and the associated expense or loss are reasonable and the fact that action taken by way of attempted mitigation is not successful, does not of itself bar recovery.”

Judge Worthington then went on to comment:-

“For the reasons given, I consider that it was reasonable for the plaintiff to choose to follow the course she did, to arm herself with an alternative career which hopefully, will be mainly within her reach.  If she had not improved herself, the likelihood is that she would have been left trying to choose from various manual jobs in which a number of the ordinary duties an employee would be expected to perform regularly, would be beyond her.”

Counsel for the plaintiff urged me to follow that decision and submitted that the damages of the plaintiff for past loss of earning capacity should include an amount equal to what she would have earnt from the restaurant during this period.  I am not certain whether the conceptual approach taken by Worthington DCJ that the damages should be in the form of compensation for the loss suffered in mitigating damages is applicable here.  It is arguable here that because the plaintiff had no training in any other form of work than work involving physical activity for which she was no longer suited that the only way she could successfully earn a regular income thereafter was to re-train.  In those circumstances it is arguable that it was the defendant’s negligence which placed the plaintiff in a position where she had no other alternative than to undertake re-training if she was to earn any income and as a result she is entitled to damages for loss of earning capacity for the period she was involved in re-training.  In other words the loss is directly attributable to the defendant’s negligence. 

However, I acknowledge that it is arguable that the issue should be viewed as one of loss brought about by the plaintiff attempting to mitigate her damages.  In my view her decision to undertake the course of study was entirely reasonable which ever way it is viewed; either damages for loss of earning capacity or damages by way of compensation for loss suffered in attempting to mitigate her loss.  In my opinion if the plaintiff is to be successful in obtaining employment she needs to undertake some form of training or studies which will better equip her to compete in the labour market or a business of her own.  I am therefore of the opinion that she is entitled to be compensated for the period she has been studying up to the date of trial.  In my view such compensation should take the form of the income she lost in not being able to operate the restaurant. 

I now turn to consider the assessment of the past loss of earning capacity.  Clearly the past financial results for the completed years are of some relevance in assessing loss of earning capacity.  However, the extent to which they can provide assistance presents some difficulty.  The problem which arises flows from the fact that not one of the completed years is representative of the manner the plaintiff was conducting her business at the time of the accident.  I have mentioned that from December 1993 to June 1994 the plaintiff was operating the business similar to the formula she operated the business when it commenced although with reduced opening times.  Prior to that period, in the first half financial year ended June 1994 and in the whole of the 1993 financial year the business was operating on the large scale with substantial staff and longer opening hours.   The large scale operation of the business commenced sometime in the 1992 financial year.  Therefore, the profits in the 1992 financial year and the 1994 financial year are the result of a hybrid of the two methods of operating the business.  The 1993 financial year results were achieved with the restaurant functioning on the large scale for the entire year. 

In those hybrid years of operation there is no evidence to allow an extrapolation of the financial results to indicate the profitability of the restaurant when it operated on a large scale and when it operated on a small scale.  The best that can be said for all these figures is that they can be of some guidance in assessing the plaintiff’s past loss of earning capacity.  In my view the four completed financial years should be taken into account in making that assessment.  Mr Jay when undertaking some calculations relating to future loss of earning capacity took only the three years from 1992 through to 1994 thus excluding the results for the 1991 year.  He explained that his restriction to using the most recent completed three years is in accordance with current accounting practice because he said that in these days “things tend to change quicker”.  However, he did concede that excluding the 1991 year in making an assessment may not produce a fair result.  I see no reason to exclude the 1991 results when considering the assessment of damages for loss of earning capacity.

It was suggested by Mr Day, that one method of undertaking the assessment of past loss of earning capacity was to take an average, after deduction for taxation, of the net profit of the four completed years of the restaurant and use this as a base for assessing damages for past loss of earning capacity.  That calculation produces an after tax result of $9,932  per annum.  However, such a method of calculation does not take into account the changes in scale of the operation of the restaurant which took place in the 1991 financial year and the 1994 financial year.  Mr Jay said that the averaging process may produce an unfair result because it does not take into account those changes.  I accept that evidence.  It seems logical.  The averaging process for the four years can only at best be of some guidance in the assessment.  Mr Jay also said that it could not be said with any confidence when the 1993 results are compared with the 1994 results that this indicates that the operation of the restaurant on the smaller scale produced more profitable results.   However, what seems clear from the results of the four completed years is that the net profit in the years where the business operated in part on a smaller scale for part of the year were far superior to the years where the business operated solely on the larger scale.  In my opinion, that is a relevant fact to take into account in the assessment process.  However, again it can only be of limited assistance.

I consider that assistance may also be derived from a document tendered in evidence and entitled “Projected Monthly Cash Flows”.  This document was prepared by the plaintiff’s then accountants, Mick Hislop and Associates, for presentation to the ATO in support of the submission that the plaintiff be granted approval to repay the outstanding Group Tax by instalments.  Mick Hislop and Associates produced an estimate of monthly cash flows for the calendar year 1995.  It was estimated that at the end of the year 1995 the restaurant would have achieved a cash surplus of $14016.  The estimates made by the accountants included an expenditure of $12,000 per annum representing instalments of $1000 per month towards the discharge of the indebtedness which the plaintiff had for outstanding Group Tax.  That indebtedness was approximately $31,000 in November 1994.  If the plaintiff’s financial results were close to the projections provided by Mick Hislop and Associates then her liability to the ATO was likely to be discharged sometime in 1996.  With the removal of that liability the cash surplus estimated by the accountants would increase from $14016 to $26,016.  Whilst it must be recognised that Mick Hislop and Associates’ figures were only projections it should also be recognised that those figures were produced by the accountants who had looked after the financial affairs of the restaurant since its inception.

It is impossible to approach the assessment of past loss with any degree of precision.  Something of a broad brush approach is called for.  In my view, a simple averaging of the four completed years results would be likely to produce an unfair result.  I think it is more likely to produce an underestimate of the plaintiff’s loss.  As I have stated, the results of the 1994 financial year and the Mick Hislop and Associates projections also provide some assistance.  In undertaking the assessment contingencies both favourable and unfavourable need to be considered.  In so doing it must be acknowledged that the period is relatively short.  The results of the 1994 financial year provide some indication that with the restaurant operating on a smaller scale there was a possibility of more profitable times ahead.  In my opinion the plaintiff’s past economic loss should be assessed on the basis of an annual loss of income of $11,000 after tax for the first two years.  Some small allowance should be made in the last year to the date of trial for the likelihood that the plaintiff had discharged the Group Tax liability sometime during the 1997 year.  I assess the plaintiff’s past loss of earning capacity at $30,000.

In undertaking the assessment of the plaintiff’s past loss of earning capacity I have not accepted Mr Day’s submission that I should take into account and give the plaintiff credit for two items of leased plant whose leases were to expire sometime in January 1995.  I have taken into account in the assessment contingencies both favourable and unfavourable.  The items referred to by Mr Day are relevant in considering the question of contingencies.  They should not be considered as a separate item which was the effect contended for by Mr Day.

The plaintiff has also claimed damages for expenses incurred in keeping the restaurant in a state of readiness for an immediate start up as soon as she regained her capacity to function as a chef.  The total amount of this claim is $4416 which is computed in the following manner:-

·....... Cleaning  $545

·....... Delivery costs  $59

·....... Firewood  $205

·....... Flowers and decorations  $134

·....... Gardening  $368

·....... Light and power  $1364

·....... Linen hire  $1000

·....... Telephone  $741

I mentioned earlier in these reasons that apart from a two week period of the vintage festival in April 1995 the restaurant never re-opened.  It was closed for seven to ten days after the accident, opened for the two week period of the festival and then closed again.  The plaintiff said that after the accident she maintained the restaurant in what she described as “glowing order”.  Ms Stephens said she did this to give the appearance that the restaurant was in operational order.  Linen was on the tables and regularly replaced, fresh flowers were placed in the restaurant.  The plaintiff kept the garden outside the restaurant maintained.  The restaurant was illuminated at night.  It was regularly cleaned.  The plaintiff maintained a wood fire burning during winter.  The restaurant was presented in this way until approximately January 1997.  The plaintiff said she maintained it in this condition in order to retain its goodwill.  She said that during that period she expected to re-open at any time and felt she may lose some customers if the restaurant presented badly.  Ms Stephens said she also had some trouble with vandals some months after the accident and felt an illuminated restaurant at night may discourage such activity.

In my view this claim should be viewed as compensation for losses suffered in an attempt by the plaintiff to mitigate her loss.  Mr Crocker submitted that she was not entitled to any of these costs as it was open to the plaintiff to offset those costs by re-opening at least on some nights with the use of a substitute chef.  It was submitted that the plaintiff could have sought the services of Mr Rowney the chef who had cooked during the Vintage Festival.  He submitted there was staff available to tend to the front of the restaurant.  Mr Crocker submitted that as the plaintiff had not sought Mr Rowney’s services or the services of another chef she was then not entitled to claim the expenses by way of mitigation.  The plaintiff said that she knew that Mr Rowney was not available on any regular basis during this period.  I accept her evidence.

I am not satisfied that it was reasonable to expect the plaintiff to seek an alternative chef for the purpose of opening the restaurant during this period.  Furthermore, there is also no evidence of the likely return if the restaurant had opened.  It may have suffered a loss in trading if the plaintiff was unable to be present.  Having said that I am of the view that it was not reasonable for the plaintiff to incur the expenditure for the entire period nor were some of the items of expenditure reasonable for the purpose of mitigating her loss.  I am prepared to allow some items of loss for some of the period of time.  I will allow $1000 by way of compensation for the plaintiff’s attempt to mitigate part of her past economic loss.

I now turn to the plaintiff’s claim for future loss of earning capacity.  I stated a little earlier that the plaintiff has lost a considerable part of her earning capacity.  She can no longer undertake work which has as its main focus physical activity.  This is particularly so where the nature of the work involves kneeling, squatting, climbing or standing for long periods of time.  The medical evidence indicates that she is essentially only fit for work of a sedentary nature.  Until the accident the only manner the plaintiff had exercised her earning capacity was in work which involved regular physical activity.  However, although the accident has resulted in loss of earning capacity, in my opinion, the plaintiff also retains a considerable earning capacity.  Mention has been made earlier of the plaintiff’s consultation with Dr Spence for vocational assessment in 1996.  Dr Spence was of the opinion that the plaintiff was intellectually quite bright.  He felt she easily had the capacity to undertake study at tertiary level.  He found, following testing, that Ms Stephens had superior aptitudes in most areas.  Dr Spence was of the opinion that he could identify an adequate range of employment in the higher order of clerical and administrative work for which she could be retrained.  I accept Dr Spence’s evidence regarding her intellectual capacity.  In fact during the course of the trial it became apparent that the plaintiff is an intelligent woman.

Whilst Dr Spence said that the plaintiff’s intellect indicated that there was a substantial range of work available to the plaintiff he felt her personality severely limited the type of work she could undertake.  He was of the opinion that it was unlikely the plaintiff could tolerate working for someone else. He said that the plaintiff’s inability to cope with normal interpersonal pressures which arise in the course of employment meant that she would need to become self-employed.  Furthermore he said that she preferred to undertake tasks herself rather than in co-operation with other people.  The plaintiff referred to this aspect of her personality in her evidence.  She said she was not a team player.  The plaintiff indicated that she was not very good at dealing with other people.  She described herself as fairly solitary type. 

Mr O’Hehir generally agreed with Dr Spence regarding the plaintiff’s intellectual capacity.  He said that if the plaintiff’ intellectual capacity, motivation and general presentation are taken into account then it was his opinion that she could be trained at any tertiary level including university.  Mr O’Hehir did not see such a problem with the plaintiff undertaking employment where she would be in regular contact with other people, including fellow employees.  He pointed to her experience in operating the restaurant to demonstrate that she had had the capacity in the past to work in such an environment although it was to some extent on a restricted basis.

It is clear from the plaintiff’s evidence that she was likely to have continued to operate the restaurant for the foreseeable future.  She derived great pleasure not only from her cooking but from the conduct of the restaurant itself.  The critiques of the restaurant which were tendered in evidence spoke in glowing terms about it.  The evidence also disclosed that it was strongly supported by patrons.  Following the return to the small scale operation in my view, it was more probable than not that it could maintain a reasonable level of profitability.  By that I mean sufficient level to encourage the plaintiff to continue to operate the business.  There were some signs that profits were on the improve. The results in the 1994 financial year and the projections provided by Mick Hislop and Associates would tend to suggest that to be the case.

Having said that I should observe that at the time of the accident a large period of the plaintiff’s working life remained.  The plaintiff had demonstrated by changing the format of the restaurant that she was prepared to make changes if they were required.  I have little doubt that if the restaurant was showing very little return for substantial effort, for whatever reason, she would have been prepared to try some other format or to choose some other form of work.  She had shown she was not adverse to change in the past.  In my opinion she would have done this even though it may have impacted on the life style which the restaurant allowed her to enjoy.

I formed the view that the plaintiff was a motivated and resourceful woman.  Her past history demonstrates that whilst the plaintiff would prefer to be self-employed I have no doubt that she could adequately cope with an occupation where she was employed by others.  She may not enjoy it all the time but in my view her determination, motivation and resourcefulness would assist her in overcoming problems which may arise because she is not a team player.  Clearly self-employment would be her first preference but if this was not possible then in my view she could adequately cope with other forms of employment.  Dr Spence indicated in one of his reports that it was unlikely that the plaintiff “... could tolerate working for someone else, and will need to look at establishing a career in which she can become self-employed”.  However, he gave the following evidence regarding the subject of self-employment:-

“Q... So it’s fair to say that self-employment is the most ideal type of employment for the plaintiff.

A. Well, I think so.  If one looks at what she’s actually done up until the time that she’s had the accident, basically, that’s how she’s tried to come to terms with that problem and I would think ideally, yes, self-employment, if possible, in the future should be continued.

Q...... I assume that you’re not saying that being employed by someone else is impossible, it’s simply that the plaintiff may not be able to tolerate it.

A.Well, I think, yes, I mean she has great difficulty.  I think, she will have great difficulty being employed by someone else even if she was working in a sense in a supervisory capacity where she would still have to spend a lot of time, if you like, organising and interacting with other people and she does find that extremely difficult.  I think the advantage of self-employment, it gives a much better opportunity to try and create working conditions that are suitable for her and that she can sustain.”

In my view the effect of Dr Spence’s opinion was that the plaintiff may encounter difficulties working in an employed environment but she could cope.  He clearly considered that the best option would be self-employment.  If Dr Spence was suggesting that the plaintiff could not cope with a work environment which involves regular contact with other persons and in an occupation where she was employed in contrast to self-employment then I reject it.  I prefer the opinion of Mr O’Hehir that the plaintiff is likely to cope with working in an employed environment although it may not be her preferred option.  This accords with the view I have taken of the plaintiff in seeing her in the witness box and listening to her evidence.  It also accords with her past work history, each of her businesses involved contact with other people, albeit in the context of self-employment.  Her restaurant business must have led her into regular contact with all types of people.  It seems to me that she needed to be a “team player” to some extent as the restaurant could not have functioned effectively otherwise.

It follows from my findings that I am of the view that had the plaintiff ceased operating the restaurant then she would have had the capacity to undertake work whether it be in the form of self-employment or employment by others. I have little doubt that if she had undertaken employment or self-employment that she would be successful.  Such employment could have included that of a chef in another establishment operated by some other person.  It is likely that she may not have been suited to all kitchens but there would have been many kitchens which would have been compatible with her personality.

Previously I stated that the plaintiff retained a considerable earning capacity.  As I have said, in my opinion, her personality difficulties will not have an enormous effect on her capacity to exercise it.  No doubt it will have some effect.  There will be some places of employment with which the plaintiff would not be compatible.  However, as I have already said there are many where she would be able to cope.  I formed the view that she is a woman of strong character.  Her strength of character will overcome problems which may arise.

Whilst the plaintiff retains a considerable earning capacity there still remains the problem of exercising that earning capacity.  If the plaintiff is seeking employment she is in most cases competing with other applicants who are not suffering from any disability.  This problem was recognised by Justice Stephen in the High Court in the decision of Wade v Allsopp (1976) 10 ALR 353 when he observed at page 361:-

“To state this is but to recognise that whereas diminished capacity to perform useful services may be expressed by a percentage figure the process of selecting one from a number of applicants for employment is, on each occasion, an all or nothing affair in which the applicant with diminished capacity may each time be wholly unsuccessful.”

This difficulty was also referred to by Justice Perry in Versace v Messer (1993) 172 LSJS 409 at pages 413-414:-

“ It is a matter of common knowledge that plaintiffs, or persons who seek jobs are commonly asked to disclose whether or not they have previously suffered an injury and to give details of it and its consequences.   It is a fact of life that persons in that situation, even if they are capable of doing the job for which they may be applying for, in a physical sense, may well be at a disadvantage in securing such a position in the first place”.

(See also: Mathewman v Australian National Railways Commission (1987) 135 LSJS 94 at page 100).

The plaintiff’s position may be made more difficult because she has had no work experience other than in employment of a physical nature.  Offset against this is that her work record does show that she has been able to successfully operate her own business.  This alone demonstrates that she clearly has other skills apart from cooking.  Furthermore, she is likely to impress a potential employer as a woman who is motivated, resourceful and intelligent.

In a case like this the assessment of future economic loss presents some difficulties.  The difficulty arises because there is no certainty about the future regarding the likely income the plaintiff could have earned.  The change in format of the restaurant so close to the accident does not allow a certain history of income producing to be used as a base for making this assessment.  However, the factors which I identified as providing assistance in the assessment of past loss of earning capacity also provide assistance in the assessment of future loss of earning capacity.

As I mentioned when considering damages for past loss of earning capacity the projection of the accountants, Mick Hislop and Associates provided some assistance.  If the actual results that were achieved were close to the estimates then at the date of trial the Group Tax debt would have been discharged.  As I have also said, in my opinion the evidence discloses that it was probable that the restaurant could have achieved financial results in the time up to trial similar to that projected by the accountants or even a little more.  Accordingly, the cash surplus would have enabled her to meet the ATO indebtedness for the Group Tax.  It is here that, in my opinion, the submission by Mr Day regarding the liability for the leased equipment being discharged by this time takes on a little relevance.  The extinguishment of this expense would also improve the cash surplus of the business.  However, having said that it is also important to recognise that such equipment would probably require replacing in the not too distant future.  It is likely that such replacement equipment would have been acquired by leasing the same.

It is important to recognise that the projections by the accountants Mick Hislop and Associates related to cash flows.  As I understand it cash flows are not synonymous with net profits.  There is an item of $14,400 for that year, being interest on a CBA Commercial Bill.  I understood that to relate to the interest on a loan the plaintiff obtained to assist in the purchase of the property from where she operated the restaurant.  It is doubtful whether such interest would usually be relevant in determining the net profit of the business.  However, if the plaintiff had not acquired the premises jointly with her business neighbour then she would have been paying rent for the premises.  There was no evidence what the likely rent of the premises would be.  In any event, I am satisfied that the interest payments should be retained in any consideration of what the restaurant was likely to earn because they were payments inextricably wound up with the restaurant business.  After excluding the ATO payments all of the other expenditure in the cash flow projections would appear to be relevant in determining the net profit of the business.

For all the reasons I have previously mentioned an attempt to achieve a measure of precision in assessing the plaintiff’s loss of future earning capacity is impossible.  One method of looking at the question is to estimate the plaintiff’s income from the restaurant at the date of trial.  Using the projection of Mick Hislop and Associates as a guide then the plaintiff would have been earning before taxation was deducted an amount of $26,016.  This figure is arrived at by adding to the cash surplus of $14,016 indicated in the projection calculation the sum of $12,000 being the amount identified as the ATO payment.  As I earlier indicated it would have been more probable then not that the plaintiff would have satisfied that liability by the date of trial.  This annual net profit translates to a weekly net profit before tax of about $500 per week before tax and an after tax amount of about $400 per week.  If anything this amount may err a little on the conservative side because, in my view, there were indicators that the scaled down version of the restaurant was likely to produce better results by the end of 1997 than the projected results for 1995.  Even if the plaintiff closed the restaurant in the future it was likely that she could have earnt income from other work of at least $400 per week after deduction for taxation.  In so doing I note that the Café and Restaurants (South Australia) Award provides for a weekly salary for a Cook (Tradesperson) as gross $451.20 per week which translates to about $364 per week after tax.  It is clear from the evidence that the plaintiff was a chef of some distinction.  I have no doubt she could have commanded a higher salary than that amount. 

Whilst the plaintiff did not expressly state in evidence that she would have continued to work until 65 years of age, there is no evidence to suggest she would not have worked to that age.   The plaintiff was not married at the date of trial.  She has shown a strong work ethic in the past.  She is a motivated person.  In my view there is every reason to suggest she would have worked to age 65.  Accordingly, I so find. 

The parties agreed that Table 4B of Professor Luntz’s book entitled “Assessment of Damages for Personal Injury and Death” (3rd Edition) was the relevant Table in this case.  It was agreed that the value of a regular loss of $1 per week to a female aged 38 and ceasing at aged 65 using a compound interest at 5% per annum is $763.  That is disclosed in Table 4B.  If the plaintiff had lost her entire earning capacity and using a weekly net loss of $400 then her gross loss, if she had worked until age 65, would have been $305,200.  However, in the plaintiff’s case, whilst I have found that she retains a considerable earning capacity it must be recognised that her loss of earning capacity is substantial.  The exercise of determining the plaintiff’s gross loss as if she had lost her total earning capacity is of some assistance in assessing damages for loss of future earning capacity.  It should also be pointed, as I mentioned earlier, that whilst I have found that she retains a considerable earning capacity, she is likely to be confronted with more difficulties than a person who does not present with a disability when she comes to exercise her residual earning capacity by seeking employment.  I also need to take into account that her personality may, to a limited extent, reduce the number of employment opportunities available to her.  On the credit side of the ledger she is a personable, intelligent, articulate woman and such qualities would no doubt be an advantage when seeking employment.

In assessing the plaintiff’s damages for future loss of earning capacity I need to take into account that from the years 1998, 1999 and possibly the year 2000 she will be studying at the Para Institute.  It is normally a three year course but the plaintiff said the course she is studying takes four years.  Having said that I must also take into account the possibility that she may terminate her studies during that time.  In the assessment process I also must take into account contingencies both favourable and unfavourable.  Accepting that something of a broad brush approach is required I assess the plaintiff’s damages for loss of future earning capacity at $140,000.

The plaintiff has also sought damages for future medical expenses.  Mr Day pointed to the evidence of Dr Jose who said that the plaintiff may need manipulation of her shoulder if the disability in the shoulder deteriorated and she ended up with a frozen shoulder.  Dr Jose was the only surgeon who  mentioned the possibility that she may suffer from a frozen shoulder and require manipulation under anaesthesia.  I must weigh up the probabilities that the plaintiff may require such surgery.  In my view the probabilities are quite small.  There is also a possibility that the plaintiff may require some further physiotherapy for the shoulder in the future.  The probability of this being required is greater.  I will make a small allowance for that.

The plaintiff also seeks damages for the possibility that she may need to undergo arthroscopic surgery in the future.  Mr Day referred to the evidence of Mr Marshall regarding a further arthroscopy and the evidence of Mr Sweeney that there is a chance that she may need exploration of ligamentum patellae.  In  my view the probability of the plaintiff being required to undergo further arthroscopic surgery is not great.  I will make a small allowance for that probability.  It follows that if she underwent such surgery then physiotherapy would be required, so a small allowance will be made for that.

I assess the plaintiff’s damages for future medical expenses at $1000.

Outstanding special damages has been agreed between the parties at $1586.60.

By way of summary I assess the plaintiff’s damages as follows:-

·Pain and suffering and loss of enjoyment and

amenities of life  Past       $6,100

......... Future  $20,000 $26,100

·....... Past Loss of earning capacity  $30,000

·....... Loss suffered in attempting to mitigate damages         $1,000

·....... Future Loss of Earning Capacity  $140,000

·....... Future Medical Expenses  $1000

·....... Special Damages  $1586.30

......... ­

......... $199,686.30

The plaintiff’s damages are assessed at $199,686.30.  There will be judgment for the plaintiff against the defendant for $199,686.30.

I will hear the parties regarding interest and costs.