Thomas Borthwick and Sons (Australasia) Ltd v Stapleton

[1996] QCA 185

IN THE COURT OF APPEAL	[1996] QCA 185
SUPREME COURT OF QUEENSLAND

Appeal No 255 of 1995

Brisbane

[Thomas Borthwick & Sons (Australasia) Limited v. Stapleton]

BETWEEN

THOMAS BORTHWICK & SONS
(AUSTRALASIA) LIMITED

(Defendant) Appellant

AND

GREGORY CHARLES VICTOR STAPLETON

(Plaintiff) Respondent

Fitzgerald P
McPherson JA

Williams J

Judgment delivered 14/06/1996

Separate judgments of Fitzgerald P, McPherson JA and Williams J, all concurring as to the orders made.

APPEAL ALLOWED. JUDGMENT BELOW BE VARIED BY SUBSTITUTING THE SUM OF $295,314.93 FOR THE SUM OF $424,289.62 WHERE IT APPEARS IN THE JUDGMENT. THE RESPONDENT PAY THE APPELLANT'S TAXED COSTS OF THE APPEAL.

CATCHWORDS:	TORT - PERSONAL INJURY - CAUSATION. Master/servant - failure to warn of possibility of carpal tunnel syndrome - whether respondent would have acted pursuant to the warning. Duyvelshaff v. Cathcart & Ritchie Ltd (1973) 47 ALJR 410.
TORT - PERSONAL INJURY - QUANTUM. Master/servant - previous existing condition warranted a discounting - economic loss reduced to reflect continuing earning capacity - award of past and future care excessive.
Counsel:	Mr K Fleming for the appellant Mr Jones QC for the respondent
Solicitors:	Messrs Peter Searles & Associates for the appellant Messrs McKays for the respondent
Hearing Date:	28 May 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 255 of 1995

Brisbane

Before Fitzgerald P.
McPherson J.A.
Williams J.

[Borthwick & Sons v. Stapleton]

BETWEEN:

THOMAS BORTHWICK & SONS (AUSTRALASIA) LIMITED

(Defendant) Appellant

AND:

GREGORY CHARLES VICTOR STAPLETON

(Plaintiff) Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered the 14th day of June 1996

I agree with the reasons of G.N. Williams J. and with the order he proposes.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 255 of 1995

Brisbane

Before Fitzgerald P.
McPherson J.A.
Williams J.

[Borthwick & Sons v. Stapleton]

BETWEEN

THOMAS BORTHWICK & SONS
(AUSTRALASIA) LIMITED

(Defendant) Appellant

AND

GREGORY CHARLES VICTOR STAPLETON

(Plaintiff) Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 14th day of June 1996

I agree with the reasons of G.N. Williams J. and with the order he proposes.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 255 of 1995

Brisbane

Before Fitzgerald P

McPherson JA

Williams J

[Thomas Borthwick & Sons (Australasia) Limited v. Stapleton]

BETWEEN:

THOMAS BORTHWICK & SONS
(AUSTRALASIA) LIMITED

(Defendant) Appellant

AND:

GREGORY CHARLES VICTOR STAPLETON

(Plaintiff) Respondent

REASONS FOR JUDGMENT - GN WILLIAMS J

Judgment delivered the 14th day of June 1996

The respondent, Gregory Charles Victor Stapleton, sued the appellant, Thomas Borthwick &

Sons (Australasia) Limited, claiming that as a result of negligence on the part of the appellant as his

employer in 1988 he developed carpal tunnel syndrome in each wrist which has seriously affected both

his lifestyle and prospects of employment. Contributory negligence was not an issue at the trial. After

a trial in the Circuit Court at Mackay the learned trial judge held that negligence on the part of the
appellant was a cause of the respondent's condition and damages were assessed as follows:

Pain and suffering and loss of amenities	$ 40,000.00
Interest on $15,000 at 2% per annum
for 6 years	$ 1,950.00
Past economic loss	$110,000.00
Interest on past economic loss	$ 24,969.25
Future economic loss	$130,000.00
Lost superannuation benefits	$ 20,500.00
Special damages	$ 5,735.53
Interest on out of pocket expenses	$ 655.00
Past care	$ 28,618.75
Interest on past care	$ 3,434.25
Future care	$ 64,790.00
Future medication	$ 3,760.00

TOTAL: $434,139.78

After making the adjustment for Worker's Compensation payments received, judgment was entered for

the respondent against the appellant in the sum of $424,289.62.

The respondent alleged that the appellant was negligent in numerous respects, but the latter was

successful on all those issues save one, which will be mentioned later. In consequence an order for

costs was made reflecting the extent to which each of the parties was successful on issues raised by the

pleadings. On this appeal the order for costs is not challenged.

The appellant accepts most of the basic findings of fact made by the learned trial judge with

respect to liability, but challenges the finding that there was a causal connection between the failure to

warn the respondent both of the risks of his work as a boner resulting in the development of carpal

tunnel syndrome and of the steps which could be taken to minimise the consequences thereof and the

condition of respondent's wrists after he ceased work with the appellant. Further there is a challenge

to the quantum of damages awarded.

After leaving school at the age of 15 the respondent took up an apprenticeship as a butcher with

his father. He acquired his trade qualification after spending approximately five years in that

apprenticeship. He worked with his father for a couple of years thereafter but then left that employment.

He worked as a boner in various meatworks from about 1968 until 1981, save for a short period.
From 1981 until 1983, although technically employed as a boner, he performed the function of a

walking union delegate in an abattoir. He left employment with the abattoir in 1983 because he believed

there was more money to be made in real estate. Whilst working as a boner he had suffered tendonitis

in both wrists in about 1976-7. He had received physiotherapy and ultrasound treatment for those

difficulties. The learned trial judge observed: "Such treatment and relatively lengthy periods off work

suggest a serious problem, although he said he had no continuing difficulties after leaving the industry in

1983."

The respondent was not particularly successful in his venture into real estate and ultimately

worked as a sales manager for a local newspaper. He then acquired a small business involving the sale

and repair of equipment used in the timber industry. That was followed by work as a representative for

a manufacturer of agricultural machinery. The money the respondent was making from those businesses

was not sufficient to satisfy his expectations as to living standards and in 1988 he returned to boning,

primarily because of the earnings he could make.

He commenced work with the appellant in about March 1988 (for whom he had worked on

previous occasions whilst working in that trade) and became a permanent daily employee in early May.

In accordance with findings made by the learned trial judge the respondent experienced "a pins and

needles feeling in both hands" from shortly after he commenced work - in the first few weeks.

A great deal of evidence at the trial related to the hand movements associated with boning, and

that evidence is analysed in some detail in the reasons for judgment. It is not necessary to repeat that

analysis here. The thrust of the medical evidence was that boning was an activity likely to cause the

onset of carpal tunnel syndrome, particularly in a persons susceptible to that condition. The

respondent's condition worsened after May 1988 until he ceased work on 12 May 1989. In June and
July 1989 he underwent surgery to each wrist to relieve the condition.

As already noted the respondent alleged that his employer, the appellant, was negligent in a

number of respects. The learned trial judge, upon a careful analysis of the evidence, rejected all but one

of those contentions. It was found that the appellant was guilty of negligence in failing to warn the

respondent of the risk of development of carpal tunnel syndrome in carrying out his tasks as a boner.

It should also be noted that in the reasons for judgment the learned trial judge described the

respondent as "an intelligent man", and later as "an intelligent, articulate and resourceful man."

The critical passages in the reasons for judgment dealing with causation are the following:

"I conclude that carpal tunnel syndrome is an inevitable consequence to some persons of working as boners. The condition and its causes were well known at all material times. It was also well known that rest would often allow repair of the damage to the point where there were no continuing symptoms, although return to work might revive them. If surgical intervention were necessary, it would be more likely to be successful if undertaken at an early stage in the development of the condition rather than at a later stage. Thus, early detection would maximise the chances of successful treatment.

Obviously, the employer should have instructed each boner as to the symptoms associated with the development of carpal tunnel syndrome and stressed that such symptoms, once experienced, might get worse unless the boner rested, that continued employment as a boner might result in permanent damage, possibly necessitating an operation, and that not all persons would recover fully following such operation. There was nothing in the written instructions, exhibit 13, or otherwise which discharged the employer's obligation in this regard.

It was not sufficient for the defendant simply to rely upon the general knowledge of meatworkers as to carpal tunnel syndrome. There is a tendency amongst all of us to assume that pain caused by hard work will eventually correct itself. We do not necessarily expect that repeated physical activity will have a cumulatively deleterious effect. An employer who knowingly exposes an employee to the risk of permanent injury, where that risk cannot be reasonably avoided, is obliged at least to advise of the risk and of the steps necessary to minimise the consequences thereof. That warning must be regularly repeated in a way which will effectively communicate the danger to each employee. The defendant gave no such warnings to the plaintiff and I consider that it was negligent in not doing so.

I am also satisfied that as a result of that negligence, the plaintiff was deprived of the opportunity to minimise injury to his wrists by rest, and/or by having his operation at an earlier stage when it was more likely to be effective, and/or by seeking alternative employment either with the defendant or elsewhere."

In the reasons for judgment the learned trial judge also noted the respondent's evidence that he

"had never been given any training or warning about the possibility of developing wrist injury from

boning". The general tenor of the respondent's evidence appears to be that he was not otherwise aware

of the risks of his continuing to work as a boner.

The principal attack made by counsel for the appellant on the question of causation was that

there was no evidence that the respondent would have acted any differently if the warning referred to

by the learned trial judge had been given. It is true that the respondent was not specifically asked what

would he have done if he had been given such a warning. Inferentially the learned the trial judge found

that if such a warning had been given then the plaintiff would have taken some appropriate steps: "The

assessment of damages in this case depends upon the degree of likelihood that the plaintiff would have

taken such steps to avoid pain and preserve some or all of that part of his capacity for manual labour,

which he has now lost, had he been warned at an appropriate time of the consequences of continuing

to work with the symptoms which he was experiencing. ... Given his previous work history, I conclude

that he probably would have resorted to other work." The authorities indicate that it is appropriate to

draw such inferences in this area. There is often a difficulty in clearly demonstrating what would have

happened in the absence of the employer's negligence. All a court can reasonably do is draw an

inference as to the likely response of the employee to an effectively communicated instruction and

warning. Such a question arose for consideration in Duyvelshaff v. Cathcart & Ritchie Ltd (1973) 47

ALJR 410; in that case the ultimate finding on the evidence was that the employee would not have used

the safety device if it had been provided. But observations of principle are to be found in the judgments

of Walsh J at 414-5 and Mason J at 419. The former said: "There is no direct evidence on the question whether the appellant would have used a safety belt if one had been provided. ... But the

absence of direct evidence does not relieve a court from deciding by way of inference from the facts

that are proved whether or not the belt would probably have been worn, if that becomes a relevant issue

in the case." The latter said: "In general it would be easy to draw the inference that the plaintiff would

use a safety belt if it were available, that being the course which a reasonable person mindful of his own

safety would take."

Here the learned trial judge was impressed by the plaintiff's intelligence, and there is nothing in

the evidence to suggest that he would not have acted reasonably upon being given an appropriate

warning.

Causation is a question of fact and as such is very much within the province of the trial judge.

I can discern no error of reasoning on the part of the learned judge in this case such as would result in

his conclusion that there was a causative link between the appellant's failure to warn and the

respondent's ultimate condition being overturned.

In the circumstances there is no basis established for setting aside the finding with respect to

causation.

I turn now to the more difficult question of quantum. In reviewing the reasoning of the learned

trial judge I bear in mind the approach approved by this court in Elford v. FAI General Insurance

Company Limited (1994) 1 Qd R 258.

There is no doubt, and this was recognised by the learned trial judge, that the respondent had

a pre-existing condition when he resumed work with the appellant in 1988. The learned trial judge

accepted the findings of Dr Boyce, and quoted extensively from his report in his reasons. That doctor

said: "It is highly likely that this man did have some hypertrophy of the flexor retinaculum bilaterally. The different techniques and increased throughput in his work probably exacerbated this in 1988

leading to his initial symptoms." In broad terms Dr Boyce accepted that the respondent had, possibly

from his previous work as a boner, some hypertrophy of the flexor retinaculum which forms the roofing

of the carpal tunnel when his relevant employment commenced. The express finding of the learned trial

judge was put in these terms: "I am satisfied that he was already suffering from wrist damage when he

returned to the defendant's employment in 1988, although the condition was asymptomatic. Thus the

prospects of a successful operation should not be assessed upon the assumption that the condition was

in its early stages in 1988." Though the learned trial judge did not use the term "exacerbation" preferred

by Dr Boyce, he did in effect recognise that that was the consequence of the appellant's negligence:

"Although there are considerable problems in calculating the extent to which he has lost his capacity to earn income as a result of the defendant's negligence, it is clear that most of his pain, suffering and loss of amenity is attributable to that negligence."

Given the medical evidence as to the nature of the condition of carpal tunnel syndrome, including

what causes it and what aggravates it, most of which was unchallenged, and given the findings of the

learned trial judge as to the respondent's predisposition to the onset of such a condition, the assessment

of quantum necessitated discounting for the very real possibility that in any event some activity during

the respondent's lifetime (he was aged 42 in 1988) would have brought on the condition in either or both

of his wrists. Though the evidence concentrated on the activity of boning, it is clear from the medical

evidence that other repetitive activity involving the wrists could lead to the onset of the condition; one

of the doctors spoke of it being common amongst checkout operators.

The learned trial judge reviewed the evidence from a number of doctors as to the nature of the

respondent's complaints as at the date of trial. After doing that he said that he accepted Dr Milroy's

"assessment of his permanent incapacity at 10% loss of function of the right upper limb and 5% loss of function of the left upper limb". But he went on to say that those "percentages probably under-estimate

the impairment of the plaintiff's capacity to earn income". Nevertheless those findings are in my view

important. It cannot be said that the actual impairment of capacity in this case is all that great. It should

be noted that some of the respondent's complaints as at the date of trial were referable to right ulna

nerve compression, a condition which on all the medical evidence (and the judge's findings) was not

attributable to his work with the appellant.

Dr Boyce pointed out in his report that the major problem is that of "disturbed sensation".

Apparently there is a scar on the respondent's right palm which he claims remains tender and aches like

a toothache. It is of some significance that Dr Doughty considered he could perform domestic chores,

though at a slow rate. The balance of medical opinion appears to support that opinion.

Clearly the respondent has pain and altered sensation in his hands, and he is unable to perform

a number of tasks which depend upon use of the hands. That has affected his lifestyle.

However, in my view, an assessment of $40,000 for pain and suffering and loss of amenities

does not reflect a sufficient discounting for the real possibility that the pre-existing condition would have

become symptomatic because of the use of the hands whether in work related activity or otherwise

throughout the balance of the respondent's life. Bearing in mind all of the findings of the learned trial

judge, including the findings of the pre-existing condition when the relevant employment commenced and

the extent of permanent partial disability, I have come to the conclusion that $40,000 for pain and

suffering and loss of amenities was in all the circumstances manifestly excessive and should be reduced

to $32,000.

In the circumstances it is appropriate to apportion $15,000 of that to the six year period prior

to trial, and I would not interfere with the allowance of interest with respect to pre-trial pain and
suffering and loss of amenities.

The learned trial judge began his assessment of past economic loss by making the observation:

"His lost income should not be determined upon the basis that he would have continued as a boner had

he not been injured by the failure to warn, but by reference to the employment which he can longer

pursue, but which he could have pursued had he stopped working as a boner when his symptoms first

appeared." His Honour was entirely correct in adopting that notional approach. He was also correct

in observing that some allowance must be made for the possibility that an earlier operation may have

preserved some more of his earning capacity.

The actual calculation of past economic loss appears to be dependent upon the following

statements in the reasons

"Calculations show a net loss of income to date, assuming he had continued as a boner, in the amount of $127,537.68. To take account of these various factors, I award the sum of $110,000 to represent past economic loss."

The "various factors" referred to appear to be the consideration that past economic loss should

primarily relate to employment which he can longer pursue but which he could have pursued had he

stopped working as a boner when symptoms first appeared, the possibility that an earlier operation may

have preserved some of the lost capacity, and the fact that the respondent had a pre-existing condition

which was not necessarily in its early stages in 1988.

With respect such a calculation does not truly reflect the respondent's past economic loss. As

already noted, the respondent left his other areas of employment to return to work as a boner in 1988

because in that employment he earned a higher income. It is that higher income which was not

reasonably available to him because of his pre-existing condition. The true measure of his lost earning

capacity is, as the learned trial judge initially observed, to be calculated by reference to the employment which the respondent can no longer pursue, but which he could have pursued had he stopped working

as a boner when his symptoms first appeared.

I cannot ascertain from the record how the precise figure of $127,537.68 was calculated, but

I can see how a figure very close thereto was reached. Amongst the documents tendered by consent

and marked exhibit 1 is a letter from Bennett Partners, chartered accountants, dated 14 September

1995 with enclosed calculations. One of those calculations is the total net earnings as a boner from 13

May 1989 to 18 September 1995; that gives a total of $143,146.43. In his quantum statement, part

of the same exhibit, the respondent in "annexure GCS1" gave his actual post-accident earnings in the

total sum of $17,808.75. If that is subtracted from the accountant's figure one arrives at $126,238.

In broad terms that appears to be the source of the figure relied on by the learned trial judge.

At the trial one of the alternative occupations put forward by the respondent was that of sales

representative; it will be remembered that he had been employed in that capacity prior to 1988. Bennett

Partners also provided a calculation for net earnings lost between 13 May 1989 and 18 September

1985 as a sales representative, including car allowance. The total of that schedule is $134,683. If one

deducts from that actual earnings of $17,808 one gets $116,875. For the reasons given above it is

more appropriate to adopt that calculation as the starting point, as the respondent never had any

reasonable capacity to continue earning as a boner.

In all of those calculations one is assuming that the respondent was totally incapacitated

throughout the period up to trial. But that does not accord with the findings of the learned trial judge.

He began his calculation of future economic loss with the finding that the respondent "retains significant

capacity to earn income". There is no suggestion that that "significant capacity" suddenly emerged as

at the trial date. For reasons which he gave, and which will be considered in a moment, the learned trial judge fixed the respondent's "presently remaining capacity" at $150 per week. Neither the medical

reports nor the oral evidence from the doctors suggests that the respondent is or was totally

unemployable. All speak of him having a significant capacity to earn income in areas where repetitive

use of the hands and wrists was not involved. There was, in my view, an error made by the learned trial

judge in not reflecting that significant earning capacity for at least a major part of the pre-trial period.

There was a total period of more than six years prior to trial and even if one, rather generously to the

respondent, adopted an earning capacity of $150 per week for 4.5 years, there would be a reduction

of $35,100 in calculating pre-trial economic loss. That would bring past economic loss down to

$81,775. Given the above analysis no greater figure than $81,775 should have been allowed for past

economic loss. The award of the learned trial judge under this head should be reduced to that figure.

The respondent received a total of $41,399.30 by way of payments from Worker's

Compensation Board and Social Security Department and therefore so far as past economic loss is

concerned he was out of pocket to the extent of $40,375.70. Interest should be allowed on that

amount in the sum of $14,535.

So far as future economic loss is concerned, after referring to the respondent's significant

capacity to earn income, the learned trial judge went on to say that he was satisfied that he would earn

"at least part time work in the future, although at considerably reduced rate of pay." That was a

reference to rate of pay as a boner. The learned trial judge recorded that the current net weekly wage

for a boner was $476.22. Because the critical figure was the loss of income from employment which

he could no longer pursue but which he could have pursued had he stopped working as a boner when

his symptoms first appeared, the learned trial judge fixed the starting point at $400 per week in

calculating future economic loss. He made a correct observation when he said: "It is probably somewhat generous to the plaintiff, but I fix his likely income, had he ceased boning before his incapacity

became disabling, at $400 per week." He then assessed the respondent's presently remaining capacity

at $150 per week. It is not clear from his reasons how he arrived at that figure but in all the

circumstances there are not sufficient grounds for disturbing that finding. That resulted in a future net

loss of $250 per week attributable to the loss of earning capacity resulting from the appellant's

negligence. The respondent was aged 49 years at date of trial and his Honour calculated the discounted

loss over a twelve year period at $118,475. In the circumstances that calculation is unobjectionable.

But his Honour went on:

"This should be increased to recognise the possibility that an earlier operation may have

saved some or all of his lost capacity. I allow $130,000 for future economic loss".

What, in my respectful view, the learned trial judge should have offset against that was some

discounting for the very real possibility that there would have been an onset of symptoms in any event;

that is even without negligence on the part of the appellant. The respondent could have become

disabled at some stage during his remaining working life. That in my view at least offsets the possibility

that an earlier operation may have saved some or all of his lost capacity. That chance was not all that

great; it will be remembered that his Honour observed that the prospects of a successful operation

should not be assessed upon the assumption that the condition was in its early stages in 1988 when he

commenced work with the appellant.

The possibility of his developing symptoms in any event cancels out the possibility that an early

operation may have saved some of his earning capacity, and in consequence only the figure of $118,475

should be allowed for future economic loss.

The appellant also attacked the allowance of $20,500 for lost superannuation benefits, covering both the past and the future. Although, for the reasons I have given, I have concluded that the learned trial judge erred in assessing past and future economic loss, it is difficult to discern any actual error in

his approach to the question of superannuation benefits. The sum of $20,500 is not manifestly excessive

and in all the circumstances I would not disturb it.

I turn now to the assessment for past and future care. Those matters are dealt with in the

reasons for judgment as follows:

"There is a claim for past care pursuant to the decision in Griffiths v. Kerkemeyer (1977) 193 CLR 161. The plaintiff is now separated from his wife and has two children living with him, the younger of whom is still at secondary school. He finds it very difficult to cope with housework and feels that his wife and children have been compelled to undertake much work on his behalf. Of course, his children are both now of an age at which they might reasonably be expected to assist around the house. The plaintiff claims for 3,012½ hours for the period from June 1989 until the present time. Whilst there seems a certain degree of luxury about some aspects of that claim, it was not seriously challenged, and I therefore see no reason to disallow any part of it. The claim is for $9.50 per hour, showing $28,618.75. This figure attracts interest at 2% per annum for six years, a further $3,434.25.

As to future care, I am satisfied that the plaintiff will require some assistance around the house. He needs assistance in heavy cleaning, cooking and associated work, and with mowing and gardening. Again, it may on the generous side, that I consider the plaintiff's estimate of seven hours per week to be not unreasonable. The rate for future care is $13.50 per hour showing $94.50 per week. The plaintiff's life expectancy is in excess of 28 years. The award should take account of the probability that with old age, he would, in any event, have needed domestic assistance and of other contingencies. I will allow this claim for 21 years, showing $64,790."

The actual calculation for past loss on which the respondent relied is found as annexure GCS3

to his quantum statement, part of exhibit 1. In the body of his quantum statement he deals in very

general terms with the matters therein particularised. He was cross-examined about some of those

particulars. He admitted under cross-examination that he hangs out the washing on the line and uses

the whipper snipper. There was cross-examination tending to suggest that he did more around the home

than was suggested in the statement, but that was met with rather general denials. The learned trial

judge asked him some questions on that topic but again, so far as is revealed by the record, he gave rather general answers. It must be remembered that the onus is on the plaintiff to prove the actual loss.

The respondent made no attempt in evidence to challenge Dr Doughty's opinion that he was capable

of doing housework, albeit slowly. Further, a claim for in excess of 3,000 hours pre-trial is difficult to

reconcile with the finding of the learned trial judge that the plaintiff retains a significant capacity to earn

income. It is, of course, true that much housework involves use of the wrists, but it appears that the

respondent is perfectly capable of doing the work so long as it is not performed regularly and constantly

over a period of time. If he is unemployed then he has ample time to perform the housework at his own

pace and then there is no basis for making a claim under this head.

Nothing in the nature of the respondent's disability and its extent, the medical evidence, or the

respondent's own oral evidence establishes an ongoing need over the next 21 (or 28) years for the

provision of services of seven hours per week at $13.50 per hour. So far as the future is concerned,

if the plaintiff is not gainfully employed he will be able to do most, if not all, of the necessary housework.

Dr White, the orthopaedic surgeon who performed the surgery in 1989, cleared the respondent

as fit to resume his normal work in August 1989. That was some seven weeks after the surgery.

Clearly it would be appropriate to allow an award under the Griffiths v. Kerkemeyer head for the period

until 28 August 1989 or shortly thereafter. A perusal of annexure GCS2 shows a total of 462 hours

for the period from 12 May 1989 when the symptoms become disabling to 12 October 1989. That

should be allowed. It would also be appropriate to allow something thereafter on the basis that from

time to time some other member of the household would have had to perform tasks which otherwise

would have been undertaken by the respondent. The claim cannot be allowed in the total and that is

demonstrated by the fact that the respondent conceded he could do washing and other household

chores.

Clearly the learned trial judge erred in allowing the manifestly excessive sum for past care. It

becomes difficult for this court to substitute the appropriate assessment. At least he should be allowed

for 462 hours in the months immediately surrounding the operation, and should in addition be allowed

say two hours per week for the remaining six years to date of trial. On that basis an award of $6,500

can be justified and I would allow that figure.

Interest should be allowed thereon at the rate of 2% per annum for the six year period. I would

allow interest in the sum of $780.

Given the findings made by the learned trial judge, and the evidence, an assessment of $64,790

for future care is manifestly excessive. The evidence does not establish a likelihood of more than two

hours per week assistance being required, and that for much of the time will be generous to the

respondent. Bearing in mind the difficulties faced by this court in substituting an amount for the

assessment made by the learned trial judge it is appropriate to allow for two hours care per week over

a 21 year period, the time span decided upon by the learned trial judge. Given the rate of $13.50 per

hour adopted by the learned trial judge, that means future care should be assessed on the basis of $27

per week. I allow $18,500.

In accordance with that reasoning the respondent's damages should be assessed as follows:-

Pain and suffering and loss of amenities	$ 32,000.00
Interest on $15,000 at 2% per annum
for 6 years	$ 1,950.00
Past economic loss	$ 81,775.00
Interest on past economic loss	$ 14,535.00
Future economic loss	$118,475.00
Lost superannuation benefits	$ 20,500.00
Special damages	$ 5,735.53
Interest on out of pocket expenses	$ 655.00
Past care	$ 6,500.00
Interest on past care	$ 780.00
Future care	$ 18,500.00
Future medication	$ 3,760.00

TOTAL: $305,165.53

From that has to be deducted the sum of $9,850.60 repayable to the Worker's Compensation

Board.

The appeal should be allowed and the judgment below varied by substituting the sum of

$295,314.93 for the sum of $424,289.62 where it appears in the judgment. The respondent should

pay the appellant's taxed costs of the appeal.