Tye v Fitzpatrick & Anor

[1998] QSC 259

SUPREME COURT OF QUEENSLAND

CITATION:	Tye v Fitzpatrick & Anor [2000] QSC 259
PARTIES:	SHANE WALTER TYE (plaintiff) v COLIN NEIL FITZPATRICK (first defendant) AND SUNCORP METWAY INSURANCE LIMITED ACN 075 695 (second defendant)
FILE N0:	6179 of 1999
DIVISION:	Trial Division
DELIVERED ON:	02.08.00
DELIVERED AT:	Brisbane
HEARING DATE:	24, 25. 7.00
JUDGE:	Holmes J
ORDER:	Judgment for the plaintiff against the first and second defendants in the amount of $168,657.79
CATCHWORDS:	DAMAGES - MEASURE OF DAMAGES IN ACTIONS FOR TORT - Personal Injuries – Loss of Earnings and Earning Capacity –Expense Flowing from Plaintiff’s Inability to Work – Particular Case – Other Pecuniary Damage – Non-Pecuniary Damage – Pain and Suffering
COUNSEL:	S.C Williams QC with R.J.Lynch for the Plaintiff R.B. Dickson for the Defendants
SOLICITORS:	McInnes Wilson for the Plaintiff Tutt & Quinlan for the Defendants

1. HOLMES J: This is an action for personal injuries arising out of a motor vehicle accident which occurred on 29 November 1998.  Liability is admitted.

The plaintiff’s injuries

1. The plaintiff was admitted to hospital immediately after the accident and was found to have sustained a stable wedge compression fracture of the L1 vertebrae; a laceration to the left knee, which had not damaged the tendons; a fifty percent laceration of the extensor tendon of the left ring finger; and lacerations to his forehead. In addition he had bruising to his abdomen, chest and right foot. The forehead laceration was repaired with thirteen stitches, and seems to have left no significant mark. The left ring finger laceration was similarly repaired, leaving no functional problem. By way of treatment for the vertebral fracture, the plaintiff was fitted with an O Brace, which he was required to wear continuously for three months. The left knee wound was cleaned but not closed for some four days post accident.

1. The plaintiff was discharged from hospital on 6 December 1998. On review in January 1999 he was complaining of a painful left wrist, which, in evidence, he attributed to carpal compression, although there is no medical evidence on the point. In any event those symptoms appear to have settled. He also required treatment for a duodenal ulcer demonstrated on endoscopy in December 1998. The extent to which it may have been caused or aggravated by the effects of the accident is not clear; but it does seem that his medication may at least have contributed to it. In any event, it had ceased to trouble the plaintiff prior to trial.

1. Mr Barry Kerr, a clinical psychologist assessed the plaintiff, for medico-legal purposes in February 1999. Mr Kerr concluded that the plaintiff was then suffering from an adjustment disorder.  It does not appear that the plaintiff’s symptoms of depression and frustration as described to Mr Kerr were of sufficient severity to require, in the event, either specialist treatment or medication; and on the plaintiff’s account they had improved by the time of trial.

1. The plaintiff’s real complaints at trial were of upper back pain, knee pain and instability, and, to a lesser extent, neck stiffness. He said that he had constant pain to some degree in the upper back, in an area that he described as “between my shoulder blades and to about mid range, just above my hips.” It was exacerbated by maintaining a position slightly bent forward such as in washing up. He could bend through a greater range to pick up specific items off the ground, but would be precluded by pain from doing so more than half a dozen times. His sitting tolerance was about half an hour. His left knee felt unstable on stairs and was painful walking on uneven ground. He was able to walk about a kilometre and a half on flat ground, while more than five minutes standing caused him pain in his knee and upper back and stiffness in his neck. He had previously, he conceded, had problems with his lower back, but he was not currently troubled by it unless he lifted very heavy weights.

1. The plaintiff’s case was that he was now precluded from returning to his former occupation as a plumber, and was rendered commercially unemployable by the injuries to his upper back and knee. He did, however, express interest in undertaking study to enable him to work in geology or horticulture, but had taken no steps to that end. He had not sought employment on any basis since the motor vehicle accident.

The plaintiff’s work and accident history

1. The real issue in the case was the extent to which the plaintiff’s pre-existing low back pathology had in any event diminished his capacity for work. It is necessary therefore to trace his work and accident history. He left high school after finishing Grade Ten in 1976, and then undertook a four-year apprenticeship as a plumber and drainer, which he successfully completed in 1981. He worked for some years in the Brisbane metropolitan area before commencing employment with the Maroochy Shire Council in the late 1980’s.

1. In April 1990, the plaintiff suffered a back strain lifting a heavy machine on to a truck. It caused him back and leg pain, and he was off work for one month. In August 1990, he was re-injured lifting the same machine and required a further four weeks off work. About this time he was referred to an orthopaedic surgeon, Dr Winstanley, whose report was put into evidence. His complaint to Dr Winstanley was of low back pain with referral into the buttocks. Dr Winstanley’s view was that the plaintiff had a “chronic sprain type injury to his lumbar spine associated with his pre-existing degenerative L5-S1 disease”. He would, said Dr Winstanley, be best suited to lighter activities.

1. The plaintiff returned to work in water reticulation and infiltration, which required, among other things, the lifting of steel manhole lids. In July 1993, he was injured while attempting to free a lid, and was off work for a month, after which he was treated as partially incapacitated for a further three months. In an account given in 1995 to Dr Gillett, he said that he did not fully recover from the incident, but returned to work rather than lose his job. In the course of 1994 he left the Council’s employ in the hope of successfully tendering for council work. That did not eventuate, and in September 1994 he began work again as a plumber with North Coast Plumbing.  Four days into that employment he was again injured, by a fall while shovelling concrete.

1. On this occasion, the plaintiff was referred to Dr Weidmann, a neurosurgeon. His complaints to Dr Weidmann were of lower back pain with some radiation down both legs. Radiological examination showed some spinal stenosis and minor disc bulges at L4/5 and L5/S1. Dr Weidmann thought that the plaintiff should consider lighter employment, and would benefit from assessment at the South Brisbane Rehabilitation Centre. That assessment took place, and the plaintiff was discharged from the Centre in January 1995, with a recommendation that he not lift more than twenty-two and a half kilograms. Mr Hoey, an occupational therapist, gave some more detail of that assessment in evidence. The plaintiff was assessed at the Centre as capable of “ medium” classification work which, Mr Hoey explained, meant that he was capable on an occasional basis, equating to one third of a working day, of lifting up to twenty-three kilograms.

1. In March 1995, Dr Gillett, an orthopaedic surgeon, examined the plaintiff. He was at that time complaining of constant lower back pain aggravated by walking and standing on concrete paths, pins and needles in the soles of his feet, and difficulty sitting and standing in one position. Dr Gillett had radiological tests performed, with similar results to those obtained by Dr Weidmann, other than that the CT scan showed some generalised bulge at L3/4 in addition to the bulges already seen at L4/5 and L5/S1. Dr Gillett’s opinion was that the plaintiff had generalised degenerative change from L3/4 to L5/S1, with some congenital spinal stenosis. His history appeared to be that of work injury producing derangement of the inter-vertebral discs, with an increasing length of time required to recover between each episode. Dr Gillett believed the plaintiff’s condition at that time to be stable, and assessed it as amounting to a permanent partial disability of ten percent loss of bodily function. He did not believe that the plaintiff could tolerate returning to heavy manual work; and he could be expected to have further flare-ups of pain if he did so.

1. The plaintiff’s evidence was that, after the North Coast Plumbing injury, he was off work for about nine months and then began to undertake plumbing jobs for friends and family. That was unpaid work he said, and was “ not as full on as what it would be with an employer”. That unpaid work would, on his indication, have commenced at about the beginning of the 1995/1996 financial year. He also undertook lawn-mowing and rubbish removal. In the latter activity, he gave customers the option of assembling their own rubbish ready for collection “to make it cheaper for them”; language suggestive of remuneration. However, his income tax return for the relevant year shows him as having received, apart from Social Security benefits, $1,206 from J H MacDonald Pty Ltd, so that employer was perhaps the source of the rubbish removal work. The relevant Group Certificate shows that the employment was for four days in July 1995. His return for the following year shows no income other than Social Security benefits.

1. Over this period the plaintiff attempted, he said, to find employment as a plumber, making up to six calls per week to potential employers. His view was that the plumbing industry was experiencing a downturn in the years from 1995 to 1997, but that evidence was, not unreasonably, objected to, as being without any proper basis in experience or expertise; and its weight must, for those reasons, be slight.

1. In November 1997, the plaintiff obtained casual employment as a plumber with Terry Cook Plumbing, a contracting firm performing water meter connection and installation at new estates. Mr Cook, the principal in the firm, gave evidence. His recollection was that an acquaintance working at the Maroochy Shire Council had recommended the plaintiff to him. He had employed him for three periods: from 13 November to 24 December 1997: for four weeks in 1998; and for sixteen days in November 1998. Because the plaintiff was employed as a casual, he was taken on at times when his particular skills were required. His actual tasks consisted of loading a truck with copper tube and equipment by way of water meters and fittings; supervising an excavator; locating an under-road conduit; and hand-digging to enable the feeding of rigid copper pipe through a tube under the road. The tube had to be welded, passed through the conduit, and joined to the water main. That part of the work was performed in a trench four hundred millimetres wide and twelve hundred millimetres deep. He had then to shovel in bedding sand. The plaintiff was, Mr Cook said, not a fast worker, but a thorough one. He was not aware of any back disability.

1. The plaintiff last worked for Mr Cook in November 1998, some ten days before the motor vehicle accident. Work had ceased at that time with the Christmas slowdown, but Mr Cook expected that he would commence in February 1999 what was to be the last of Terry Cook Plumbing’s contracts, undertaking similar work at the Noosa Springs estate. That contract was to be completed by July 1999, but in the event ran on until December. Had the plaintiff been available, Mr Cook anticipated that he would have taken him on for that work, and, because he was somewhat steadier than other casual employees, would probably have retained him for the duration of the contract. Thereafter he would not have had work for him, because he had moved to a new line of business in plumbing supplies, and he did not consider that the plaintiff had a sufficiently outgoing personality for sales work.

1. In his employment with Mr Cook during the 1997/1998 financial year, the plaintiff earned $3,989.00. In the same financial year he worked briefly for Boral Building Services, for what he recalled as a week and a half period; in that employment he earned $631.00. In the 1998/99 financial year his income from Terry Cook Plumbing was $1,938.00. Each of those amounts is gross, but they equate for practical purposes, to nett amounts; in each of those years the plaintiff received a refund of tax installments paid because his total income was small. In sum, then, it appears that in the period from his injury working with North Coast Plumbing in September 1994 until the date of his accident in November 1998, he worked for remuneration for a period of about fourteen weeks, and received remuneration totalling $7764.00.

1. To complete the picture in relation to the plaintiff’s pre-accident condition, Dr Beale, a general practitioner from the medical clinic which the plaintiff attended between March 1996 and July 1999, gave evidence of some entries in the clinic’s notes. On 19 February 1998, a complaint by the plaintiff of low back pain on lifting a twenty-pound pot plant was recorded. Given that there was no follow-up from that date, I do not consider that entry of much importance. For 6 May 1999, there was an entry of some significance, made by Dr Beale himself, which read “ past history, had low back pain from a lifting injury in Council 1993/1994. Had a daily sore back ever since”. Dr Beale emphasised that he used “sore” as distinct as from “pain”, which indicated that what the plaintiff was describing was a tolerable level of discomfort not requiring treatment.

Post - motor vehicle accident assessments

1. As to the plaintiff’s condition after the 1998 motor vehicle accident, reports were tendered from Dr Gillett, Dr Todman, a neurologist, and Dr Nave, an orthopaedic surgeon. Dr Gillett and Dr Todman gave evidence. Both Dr Nave and Dr Gillett assessed a two percent loss of the left leg arising from the left knee injury. Dr Gillett explained that the scarring of the left knee was likely to be associated with some sensitivity in kneeling and squatting tasks. Both orthopaedic surgeons also agreed that impairment resulting from the plaintiff’s back injuries in the motor vehicle accident amounted to something of the order of seven percent. Dr Gillett explained in his evidence that, although the fracture was healed, the bone was now altered in shape, so that the mechanics of the spine had changed at that level, causing stresses and strains to the adjoining discs and soft tissues. In addition, he anticipated that the degenerative pathology in the lower back would have been aggravated. Neither of the orthopaedic surgeons considered there was any residual impairment in the cervical spine.

1. Dr Gillett  was cross-examined on whether his views as expressed in 1995, of the plaintiff’s difficulties in continuing with heavy work, had been substantiated by events. His summary of his prognosis as at 1995 was, in essence, that he then thought there was a seventy percent chance that the plaintiff would, if he remained in heavy plumbing work, have episodes of being off work, those episodes escalating in terms of severity of pain, duration, and regularity. On the other hand, there was a chance that the plaintiff’s symptoms had improved with time. Whether his prognosis as to increasing difficulty had come to pass depended on whether the plaintiff’s extended periods off work were, as he said, due to a downturn in the market; or whether they in fact reflected recurrent symptomatology.

1. In cross-examination, Dr Gillett agreed with two propositions of some significance. The first was put to him in the following terms: “in practical terms as a plumber, the motor car accident hasn’t made him any worse, because he shouldn’t have been doing plumbing immediately before the accident”; and the second: “as to doing work that is physical work that involves any form of repetitive carrying, bending, lifting, twisting, this man before the accident was not a candidate for that type of employment on an ongoing basis”.

1. On the other hand, in re-examination, Dr Gillett agreed with Mr Williams, counsel for the plaintiff, that if the plaintiff was in fact able to do heavy work consistently, he might have been able to continue doing it. In any event, Dr Gillett  considered that the plaintiff remained capable of doing light work which did not require manoeuvring heavy objects, repetitive sustained kneeling or squatting, and allowed him to move about and change position.

1. Dr Todman in his reports assessed the plaintiff as having a fifteen percent whole person impairment arising out of his lumber spine injury, of which five percent was pre-existing, and ten percent related to the November 1998 accident.  He did not comment on any disability relating to the left knee, but he did find that there was a further two and a half percent permanent disability arising out of the plaintiff’s neck pain and daily headaches.  I should say at this juncture that I found Dr Todman’s opinions of less assistance than those of Dr Gillett and Dr Nave, largely because the symptomatology recorded by him as recently as 6 June 2000 did not correspond with the plaintiff’s own account at trial.  Specifically, the plaintiff’s description of upper back pain from between his shoulder blades to just above his hips is difficult to reconcile with Dr Todman’s record of pain from L1 to the sacrum, on occasion radiating into the buttocks and posterior thighs; while the account of increasing neck pain present bilaterally in the cervical spine and radiating into the shoulder girdles recorded by Dr Todman seems at odds with the plaintiff’s evidence that his neck did not worry him now, other than being “ a bit tight”.  Nor was any mention made by the plaintiff of suffering headache other than during the three and a half day period between 10 and 15 July 2000 when he undertook a work trial. It is difficult therefore to act on Dr Todman’s opinions, given that the premises on which they are based appear to differ from the plaintiff’s own description of his current symptomatology. 

1. Other reporting as to the plaintiff’s condition and capacities comes from Mr Mark Griffiths, physiotherapist, who treated him in early 1999, and Messrs Hoey and Siebel, both occupational therapists of Therapy Solutions, who assessed him and reported to his solicitors between June 1999 and the recent performance of the work trial.

1. Mr Griffiths treated the plaintiff for left wrist, knee, foot and cervical and lumber spine pain.  By April 1999 his continuing difficulties were with the left knee, in which he experienced pain across the scarring when squatting or walking down stairs; the cervical spine, which was painful on rapid head turns, with occasional headaches, on average twice per week; and the lumbar spine in respect of which the plaintiff was reporting a burning sensation when pressure was applied to L1, a deep ache along the left leg, and a broad band of pain in the region of L5 with limited flexion and extension. The facet joints between L/4 and L5S1 were extremely tender on palpation.

1. Mr Hoey first reported on the plaintiff in June 1999.  He was then describing constant dull aching in the lumbo-sacral region.  On examination, he was exhibiting paraspinal muscle tension in the lumbo-sacral region and instability in the left knee.  Mr Hoey at that stage considered the plaintiff to be capable of employment in the sedentary to light range of occupations.

1. The plaintiff was reassessed on 9 June 2000, on this occasion by Mr Siebel.  Mr Seibel considered that the plaintiff could, with difficulty, perform certain light occupations such as console operator, hardware salesman, car park attendant or shoe repairer and key cutter. (The reference to “difficulty” indicated that he would be limited by pain or restriction in some or all components of the occupation in question).  Mr Seibel proposed a work trial. In a supplementary report delivered some days later, he provided a table of mechanical repair activities which the plaintiff would either be able to undertake with difficulty or would be unable to undertake at all.  While he thought that the plaintiff would be able with difficulty to replace engine oil, tune engines, use welders and repair electrical systems on a vehicle, he did not consider he would be able to replace windscreens or major parts, carry out minor body and trim repairs, repair or replace engine management and fuel injection components, or replace a vehicle chassis.

1. Although it may be questioned whether a period ending one week short of the commencement date of a trial in an action for personal injuries is the ideal time for assessment of a plaintiff’s capacity for employment, a work trial proceeded between 10 and 17 July 2000.  That trial entailed the plaintiff working in three situations: with a mobile plumber, in a wholesale hardware distribution and sales store, and in a shoe repair shop.  In evidence, he said that while assisting the plumber he found it difficult squatting for any period, and climbing a steel ladder, as he was required to do; overhead loading and constant bending was a problem in the warehouse work; and the constant bending and lifting required in the shoe repair shop caused him upper back pain and headache. 

1. Mr Hoey concluded that the plaintiff could not work at a hardware store, but could otherwise carry out the occupations described by Mr Seibel, that is, console operator, car park attendant or shoe repairer.  He considered that the plaintiff’s capacity for work was part-time only, in the order of twenty-five hours per week.  However, in evidence, he said that the plaintiff’s lack of sales experience and his difficulty with dealing with the public might be an impediment to his working as a console operator.  In addition it could be expected that the plaintiff would have difficulty with the heavier aspects of the job such as putting items on display or stacking shelves.  The plaintiff himself said that he did not consider he was suited to console operating because he was hot-tempered and intolerant, and was not “up to scratch” with the computer technology used. In addition, he did not want to work inside.  However, he volunteered in cross-examination that he had an interest in studying geology, or perhaps horticulture with the view to working in a plant nursery.  As to the latter, Mr Hoey noted that commencing work in such an occupation would present difficulties, because it could be expected that an apprentice or an inexperienced person would be expected to do the heavy lifting.  However, as he astutely observed, “ if a person is genuinely interested in something ……. it tends to be that their interest will overcome a lot”.

Video footage of the plaintiff

1. Counsel for the defendants tendered in evidence a videotape recorded over successive days from 29 May 2000. The footage is of separate periods of activity by the plaintiff, the longest of which occurs between 8.28 and 9.50 on 29 May.  During that time the plaintiff is seen hosing and cleaning his utility, an activity involving him in bending, stretching, and crouching for minutes at a time.  He is seen to get up and down from a squatting position without apparent difficulty.  The tape then breaks for approximately an hour before showing the plaintiff under the bonnet of the vehicle, engaged, according to him, in checking its oil and water.  He is then seen to make various minor adjustments to the mirrors and brake lights of the vehicle, which entail him on a number of occasions crouching down to a tool box on the floor of the garage.  On one occasion, he leans from the driver’s door across to adjust the passenger side external mirror.  There is then a further break for some three quarters of an hour followed by five minutes of his adjusting the catch on the driver’s side door and the tail lights again involving three or four instances of crouching.  An hour and a half, later between 1.20 and 1.46, he is seen to return to hosing underneath the vehicle spending a couple of minutes crouching beside it in a space about eighteen inches in width between it and the garage wall. On the following day, there is some insignificant footage, and on 1 June there is some footage of the plaintiff mowing his yard between 10.44 and 11.07.  In the course of that activity nothing remarkable is undertaken.

1. The videotape does not establish that the plaintiff was able to perform the work without subsequent discomfort, nor that he could perform it without breaks or over the course of a working day. It does, however, demonstrate an enviable flexibility of movement, and a capacity to maintain awkward positions for at least a couple of minutes which would cause some difficulty in crediting that he had much restriction at least in household activities.

Pain, suffering and loss of amenities

1. I accept the evidence of Drs Gillett and Nave as to the percentage disabilities experienced by the plaintiff in respect of his knee and lumbar spine, and the proportion to which the lumbar spine disability should be attributed to the motor vehicle accident.  The plaintiff undoubtedly underwent a period of significant pain and discomfort immediately post-accident and has been left with a significant expansion of, and worsening of, the pain in his back.  I do not, however, consider that it is likely to have caused any gross restriction on his everyday activities.  I consider that the defendants’ proposed figure of $32,000.00 as an award for pain, suffering and loss of amenities is appropriate.  Interest on half that amount for 1.67 years since the accident gives a further $534.40.

Economic Loss

1. The nub of the case was whether the plaintiff had, as his counsel contended, lost an existing capacity to work as a plumber, performing heavy duties; or whether, as the defendants contended, the accident had made a negligible difference to an already significantly impaired earning capacity.  The likely position, in my view, lies between the two. 

1. Mr Williams, for the plaintiff, submitted that his return to work with Mr Cook in 1997 was consistent with a return to the workforce upon a significant improvement to his back condition. It should be assumed, he argued, that, the plaintiff’s back having substantially improved, he could have been expected to take up Mr Cook’s 1999 offer of work, complete it in December and go on to other work with a plumbing contractor.

1. The difficulty with that proposition is that it does not reflect the plaintiff’s evidence.  He did not give any indication that his taking up employment with Mr Cook corresponded with any improvement in his back condition. Rather, his evidence was that he was able to perform such work from about nine months after his injury at North Coast Plumbing, but could not obtain it despite repeated attempts. Although Mr Cook said that the plumbing business was cyclical, and pricing was extremely competitive in the 1990’s, the notion of a downturn in the market was not the subject of any authoritative evidence.  Despite the plaintiff’s assertion, I find it inherently improbable that for three successive years there was a downturn in the market such as to preclude such an experienced and able plumber from obtaining any work.  If there were such a downturn, one would wonder why an able-bodied job-seeker would not turn his attention to alternative occupations. 

1. In my view it is probable that the plaintiff either felt himself unable by reason of his back condition to take on regular employment or chose not to do so.  As to the latter, one might speculate that a capable person undertaking plumbing, lawn mowing and rubbish clearing work on a “cash in the hand” basis could earn a reasonable living; but that is not the plaintiff’s evidence.  He says, and there is nothing to contradict him, that he did not engage in remunerative work except for the very limited instances already set out. 

1. Accepting that to be the case, I do not think that the pattern of work undertaken in the years prior to the accident - whether the result of back pain, or lack of volition- augured well for the plaintiff’s working future.  Nor do I consider that the limited periods for which the plaintiff worked for Mr Cook provided any real indication of his likely endurance in full-time work.  It is extremely probable, in my view, that some minor incident would have produced a recurrence of symptoms of the kind experienced in 1993 and 1994. 

1. Allowing for what I perceive as those probabilities, I consider that the appropriate award for past economic loss is to allow the plaintiff twenty six weeks at the average pay received by him in Mr Cook’s employ (that is, about a third of the time which has elapsed between his projected employment date in February and trial).  That gives a figure of $14,170.00, interest on which at five percent would amount to $1,183.19.  Allowing seven percent of past economic loss as representing lost superannuation gives another $991.90.

1. As to the future, it seems extremely improbable to me that the plaintiff would have returned to and continued in his former occupation as a plumber.  There is some prospect, however that he might have found lighter work in the industry, or in some other occupation in which his skills and capacities could be utilised.  On the whole, I consider that any return to employment was likely, given the plaintiff’s history in recent years, to be intermittent.  On the other hand, while I do not accept that he is now commercially unemployable, there is plainly a significant reduction in the range of occupations open to him. Taking those factors into account against a possible maximum income of some $400,000.00 (representing twenty five years in plumbing at Mr Seibel’s posited rate of $534.00 net per week) and setting off also what I consider the plaintiff’s significant residual capacity for part-time work, whether in a light industry or on a casual basis lawn mowing, or performing minor plumbing jobs, I consider that an award of $100,000.00 is appropriate. I will allow $5,000.00 as lost superannuation (rather than taking eight per cent) since it is quite conceivable that the plaintiff might in fact have worked for himself.

Special damages

1. There is a claim for special damages with interest, at $6,268.88.  The contentious aspect of that claim is the refund of the amount due to Therapy Solutions at $1,868.00.  Counsel for the defendants says that amount ought to be treated as an outlay in the action, to be recouped as part of the costs award, while the plaintiff’s council contends that it was a proper expenditure on the plaintiff’s behalf towards mitigating his damages by attempting to get him back into the workplace.  While there is some reason for cynicism, given the timing of the trial, I am prepared to accept it as such an expenditure and accordingly award special damages with interest in the amount of $6,268.88. 

Griffiths v Kerkemeyer damages and future expenses

1. The plaintiff claims past Griffiths v Kirkemeyer damages in an amount of $3,396.00. His evidence to his requirements was not challenged, and I consider that that amount is properly awarded, with interest at $113.42.   In respect of future care, there was a claim for future mechanical assistance at fifty hours per year, mechanics’ rates being admitted at $50.00 per hour. The amount claimed, for a twenty-year period, totalled $30,000.00.  Given the pre-existing condition of the plaintiff’s lower lumbar spine, combined with his current physical capacity as demonstrated on the video, I do not accept that there has been any very significant change in his ability to undertake mechanical work.  It seems to me improbable that he would, for example, have undertaken a chassis replacement without physical help prior to the accident; and it does not seem to me that situation has changed.  In short, I consider that he remains capable of performing lighter tasks and would always have required assistance with heavier tasks in working on the vehicle.  There may be some limitation on his ability to adopt more awkward positions, but I propose only a nominal amount in this regard, of $5,000.00.

1. Mr Williams also submitted for damages of $360.00 and $140.00 respectively for future physiotherapy and a future “therapeutic program”.  These claims related, it appears, to a reference in Mr Seibel’s report to the possibility of the plaintiff’s undertaking physiotherapy treatment followed by a program at a fitness centre with an exercise physiologist.  Given that the plaintiff, according to Dr Beale, asked to be relieved of physiotherapy treatment because of the pain it caused his lower back, I consider it most improbable that either will be undertaken and I do not propose to make any award in this regard. 

1. The following is a summary of my assessment of the components of the award of damages:

Pain and Suffering

and Loss of Amenities  $32,000.00

Interest on $16,000 for 1.67 years at 2%   $534.40

Past Economic Loss  $14,170.00

Interest for 1.67 years @ 5%   $1,183.19    

Future Economic Loss  $100,000.00

Past Loss of Superannuation   $991.90

Future Loss of Superannuation   $5,000.00

Past Griffiths v Kirkemeyer  damages   $3,396.00

Interest at 2% for 1.67 years            $113.42

Future mechanical expenses     $5,000.00

Special damages including interest   $6268.88

TOTAL  168,657.79

1. I give judgment for the plaintiff against the first and second defendants in the amount of $168,657.79.

1. I will hear the parties as to costs.