Vaughan v Du Zebra Pty Ltd

[2000] QSC 412

SUPREME COURT OF QUEENSLAND

CITATION:                  Vaughan v Du Zebra Pty Ltd [2000] QSC             

PARTIES:  DAVID JOHN VAUGHAN

(Plaintiff)

v

DU ZEBRA PTY LTD

(Defendant)

FILE NO:  S147 of 2000

DIVISION:                   Trial Division

DELIVERED ON:       16 November 2000

DELIVERED AT:        Rockhampton

HEARING DATES:     3, 4 & 5 October 2000

JUDGE:  Dutney J

ORDER:Judgment for the plaintiff against the defendant in the sum of $367,164.00.

CATCHWORDS:         NEGLIGENCE – PERSONAL INJURIES -         FAILURE OF EMPLOYEE CLEANER TO           OBSERVE OBVIOUS DEFECT - FAILURE OF   DEFENDANT TO SUFFICIENTLY INSTRUCT            EMPLOYEE – VICARIOUS LIABILITY-    plaintiff roadhouse patron injured when he fell from           a broken cafeteria chair – visual inspection of each chair when taking off table a reasonable          requirement – incident aggravated pre-existing low         back pain

Hackshaw v Shaw (1984) 155 CLR 614, followed

Australia Safeway Stores Pty Ltd v Zaluna (1986-1987) 162 CLR 479, followed

Wyong Shire Council v Shirt (1980) 146 CLR 40, followed

Husher v Husher (1999) 197 CLR 138, followed

COUNSEL:DVC McMeekin SC, with him GC Crow for the   plaintiff

GK Flint for the defendant

SOLICITORS:             Grant & Simpson for the plaintiff

South & Geldard for the defendant

1. DUTNEY J: The chairs at the Dingo roadhouse have been in use since the roadhouse opened in 1984.

1. The chairs are a single square-section tubular framed construction consisting of near vertical back legs extended upwards to support the seat back, a pair of similar section front legs which are bent over to almost horizontal and extending back to meet the rear legs.  Two cross members are incorporated to secure the side frames together (ex2,p2).  The tubular sections are 19mm x 19mm x 0.9mm (ex3,p1).  The front section is welded to the back section on the top and two sides of the box tube.

1. The roadhouse was owned by a Mr Bauman and his wife from the time of its construction until recently when Mr and Mrs Bauman transferred ownership to a company they controlled.  It is not alleged that that company is the defendant.

1. Mr Bauman bought the chairs from Chevron Furnishers in East Street in Rockhampton.  They were bought as a result of Mr Bauman asking to be shown chairs suitable for the environment in which they were subsequently used, namely, the roadhouse: T171.  In cross-examination Mr Bauman agreed with Mr Crow that he was guessing when he said he asked for a chair suitable for the roadhouse (T172.4).  I understood him to be saying by this only that he had no recollection of what words he in fact said to the salesman after 16 years.  I did not understand him to retract his earlier evidence that he made known to the salesman why he wanted the chairs.

1. Mr and Mrs Bauman did not always operate the cafeteria section of the roadhouse where the chairs were used.  In September 1996, the time with which this case is concerned, the cafeteria was operated and controlled by the defendant.  This is admitted on the pleadings.  No evidence was led to establish the basis of that control or when it began.  The defendant's manager was a Miss Wendy Phillips.  Miss Phillips commenced managing the cafeteria 4 or 5 months before the incident on 13 September 1996 (T181.58 – 182.10).  There were managers before Miss Phillips (see T215.60).  There is no evidence that assists in determining whether they were in any way associated with the defendant.

1. There were at all times between 40 (T172.3) and 60 (T177.40) chairs.  It does not seem that any further chairs were bought after the initial order in 1984.  It appears that prior to Miss Phillips taking over operation of the cafeteria and before any involvement by the defendant there had from time to time been problems with the chairs.

1. In the time Mr Bauman operated the cafeteria from 1984, approximately 4 chairs had required repair as a consequence of cracking in the weld at the point where the front section meets the back section of the chair frame.  The flaw was apparent as the crack in the weld could be seen by visual inspection.  Attention was drawn to the problem because as the weld cracked the back leg would distort at an angle. (T175).  Mr Bauman repaired these chairs by re-welding them himself.  I assume from this that he was in control of the cafeteria at that time.  Miss Phillips said, and I accept, that there were no such failures between the time she took over the cafeteria and 13 September 1996.  Miss Phillips was not told by Mr Bauman or anyone else that there had been occasional weld failures (T181.39).  There is no suggestion any representative of the defendant knew.

1. Mr Vaughan, the plaintiff, is neither a large nor a heavy man.  He weighed about 70kg on 13 September 1996 and stands about 170cm tall (T9.48 - 50).  On 13 September 1996 Mr Vaughan went to the roadhouse to speak to his wife who worked there as a cleaner.  His wife was busy so Mr Vaughan sat down on a chair at a table.  The chair collapsed and Mr Vaughan was hurt.  None of this evidence was contested.

1. Mr Vaughan claims his injury was caused by the negligence of Du Zebra Pty Ltd who for the purposes of the judgment I will identify with Miss Phillips since no other connected party was identified in the course of evidence.  Mr Vaughan says that the defendant was at fault in four ways:

(a)the chair was of a type that by its design was inappropriate for commercial use;

(b)the chair was of a type which a manufacturer of commercial chairs would not sell for commercial use;

(c)chairs of that type, purchased at the same time, had failed in precisely the same way during the course of the same use; and

(d)in all probability signs of progressive cracking in the weld holding the back legs would be evident prior to failure.

[10] In support of the first area of alleged fault the plaintiff relies on Peter McGiffin, a consulting engineer with Chaseling McGiffin Pty Ltd (exhibits 2 and 3).  Mr McGiffin’s testing, perhaps surprisingly considering the chairs had been in the same use for some 12 years prior to Mr Vaughan’s accident, led him to the opinion that the chairs were of such light construction that they would fail not only level 5 tests in the British Standard (there being no applicable Australian standard at the time) but also the Level 1 test applicable to ordinary domestic usage.  The chair was thus said to be unsuitable for any application (exhibit 3, p2).

[11] A Mr Travers from a company manufacturing commercial furniture, State wide Commercial Furniture, also gave evidence that he would in the course of his business advise customers that the chairs depicted in the Chaseling McGiffin reports were unsuitable in a commercial application.  He describes the particular type of chair as a “cheap chair”.

[12] Mr Travers evidence that he would advise against the chair is hardly surprising when the material provided to him and on which he was asked to give his opinion was a report from an experienced engineer stating the chair was unsuitable for any use at all.  I would have found his evidence more useful if he had been briefed only with photographs of an unbroken chair and not with opinion evidence he was hardly qualified to contradict.

[13] While it is true that a defendant in a case such as this has a duty of care under the ordinary principles of negligence there must be reasonable forseeability of a real risk of injury to a visitor to the cafeteria such as Mr Vaughan: Hackshaw v. Shaw (1984) 155 CLR 614 at 662-3; Australia Safeway Stores Pty Ltd v. Zaluzna (1986-1987) 162 CLR 479 at 488.

[14] The chairs in use in the Dingo roadhouse are visually of a general type one commonly sees in café style applications.  The chairs had been in use for 12 years.  When the defendant took over the operation of the cafeteria it took possession of a fully fitted out, operating business which had been in operation for a number of years.  There is no evidence that Miss Phillips was aware of any problem having ever arisen with the chairs which from simple visual inspection seem to be a type of common cheap chair.  I cannot accept in the circumstances that there was anything about the chairs which would have made a risk of injury other than to someone vigorously abusing a chair reasonably foreseeable to a person in the position of the defendant.

[15] The plaintiff relied on a report by Mr McDougall an engineer from Inter Safe.  Mr McDougall’s report is to the effect that on taking over the cafeteria the defendant should have had a safety audit undertaken and that would be likely to have resulted in the chair being replaced.  The evidence of the cost of such an audit was contentious but it seemed to be at least $1400.  These audits were said to be required regularly.  At a cost which equates to between $35 and $23 a chair at the bottom I hardly think it reasonable to require this of the operators of the Dingo Roadhouse.  In view of the time the chairs had been successfully in use I do not think the forseeability of risks and the nature of the business (the defendant not being the owner of the property) justified this level of expense: see Wyong Shire Council v. Shirt (1980) 146 CLR 40 at 47-8. Further I am not satisfied that such an audit would necessarily have condemned the chairs on mass anyway in view of their successful history. The replacement cost of each chair was something under $65 (T124.10). The engineering audit is thus prohibitively expensive having regard to the degree of risk.

[16] The same conclusion must be reached in relation to the second argument advanced by the plaintiff.  Since to the lay observer there was nothing exceptional about the chairs as would render their mere use a source of reasonably foreseeable danger I cannot see that the fact that Mr Travers would not sell such chairs alters the position.  Mr Travers would not sell such chairs (having read the engineering reports) while acknowledging that others would.  Indeed, Chevron Furnishers did sell them knowing, at least generally, the purpose for which they were required.

[17] The third submission listed above must also fail.  The fact that some chairs had failed previously can have no bearing on the liability of the defendant unless either the defendant was aware of that fact or a reasonable person in the position of the defendant ought to have known it.  Even if Miss Phillips had asked Mr Bauman if the chairs were in good order it is likely he would have said “Yes” as was then the case.  It was certainly never suggested to him that had he been asked such a general question he would have given a complete detailed history.  There was no reason to think the failure of welds on a few chairs over a significant number of years was of any moment to him.  No chair had actually broken previously.  What had happened is that Mr Bauman on a few occasions had observed a chair with a distorted leg.  When inspected more closely he observed a crack in the weld and put the chair aside.  He re-welded the join and presumably put the chair back in service.

[18] No doubt if Miss Phillips had specifically asked whether any chair had ever cracked at the join Mr Bauman would have given a truthful answer, but this was in the context of an acquisition of a fully fitted business.  If such questions were required to be asked in relation to particular parts of one item of equipment they would be required to be asked in relation to all other items of equipment.  In my view it is unreasonable to expect such detailed inquiries to be made by the incoming tenant of the cafeteria at the Dingo roadhouse.

[19] The fourth submission warrants closer scrutiny.  Mr McGiffin gave evidence that in his view there would be “quite a large amount of cracking involved” before the chair actually failed (T55.40).  His calculations showed that for a 70kg man such as the plaintiff sitting on the side of the chair and thus concentrating the force on one of the welded joins an unbroken section of weld of the order of 2.3mm would be sufficient to maintain the integrity of the load bearing weld (T55.35).  Having regard to the dimensions of the steel tubing it seems to follow that of 57mm of welded join only a tiny fraction was needed to sustain the plaintiff's weight.  Thus the argument follows that the cracking in the weld must have been gross and obvious before failure occurs.

[20] A weakness in the argument is that there is no evidence of distortion in the leg of the chair before failure.  This seems to have been the visible feature which alerted Mr Bauman to the earlier cracks (see para [7]).  Mr McDougall, the plaintiff's second engineer agreed that such distortion was likely (T169.12).

[21] No such distortion was apparently observed by Mrs Vaughan that morning when she put the chairs down on the floor off the tables.  There was some controversy as to whether staff had been instructed to look for signs of damage on the chairs.  Miss Phillips said, and I accept, that at each staff meeting she said to the staff, including Mrs Vaughan, “if there was anything that wasn’t right with any of the equipment, whether it be chairs, any of the electrical equipment at work, they were to notify me and if it was something that was able to be removed, as in a chair, it was to be placed out the back for repairs”(T181.1).

[22] Despite the submissions to the contrary by the plaintiff, Mrs Vaughan did not really dispute this instruction when she was recalled (T215.30).  In any case it doesn’t seem to matter here because in cross-examination Mrs Vaughan who put the chairs down from the tables that morning agreed that she didn’t have to be told not to use a broken chair or one that appeared to be breaking and not to put it into use in the cafeteria (T76.40).  In my view she would have known to look at the chairs for signs of damage when putting the chairs down and should in any event have been specifically told that.  To that extent the instructions to the cleaners should have gone beyond the general instruction Miss Phillips gave all the staff.

[23] Mr Nelson the defendant's expert suggested the possibility of the weld not having bonded to the front tube and “popping out”.  This possibility was based on inspection of that photographs (exhibit 5) which appear to show all of the weld material still attached to the back tube and the front tube “clean”.  (see T 189-191).  In the end Mr Nelson could not express a firm view on the basis of a photograph and frankly conceded as much.  I was impressed by Mr Nelson as an expert.  He appeared to me to have a refreshing lack of partisan interest in the case and was plainly an expert in his field.  In the end, however, I am left with the position that the chair did break.  To break the weld had to be cracked either in the weld or where the weld met the metal tube for almost the entire length of the weld.  It is unlikely that damage to that extent would not have been visible to the naked eye.  I am satisfied on the balance of probabilities either Mrs Vaughan or Mrs Phillips or both fell short of the required standard of care.  In Mrs Vaughan’s case the failure was in not observing an obvious defect or if she observed it in still putting the chair into use on that morning.  In Miss Phillip’s case the failure was in not giving a sufficiently detailed instruction to the cleaners who regularly handled chairs in circumstances where chairs were likely to be subject to hard use and by their nature were an obvious potential danger.  Since the defendant is vicariously liable for the negligence of Mrs Vaughan and Miss Phillips in these respects I find for the plaintiff on the question of liability.   A visual inspection of each chair at the time it was taken off the table is a reasonable requirement.  It would not have taken very much time and on the balance of probabilities would have avoided the accident.  It is something which ought to be done in a commercial setting of that type and is more likely to be effective in preventing an accident such as that suffered by Mr Vaughan than the periodic engineering audit contended for by Mr McDougall.

Quantum

[24] Mr Vaughan is 43 years old having been born on 24 March 1957.  He presently lives with his wife and two children on a property just outside Childers.  Mr Vaughan was educated to Grade 7 level and says he was an average student. After leaving school he commenced work on the family farm.  He worked at various unskilled jobs but commenced with Golding Contractors as a plant operator about 17 years ago and but for about 10 months as a sand blaster and 18 months as a subcontract delivery driver worked for Goldings until about September 1995.  He was earning about $26,000 net per annum in his last full year with Goldings.

[25] In September 1995 Mr Vaughan ceased work as a plant operator and formed a partnership with wife under the name M-Tech Machinery.  The business operated by the partnership had three aspects:

(a)providing accreditation testing for various types of plant and machinery;

(b)training plant and machinery operators;

(c)certifying work site compliance with the provisions of the Workplace Health and Safety Act.

[26] Mr Vaughan had various certificates as a trainer and other certificates listed in paragraph 6 of the quantum statement (exhibit 6).

[27] Mr Vaughan’s evidence was that he was intending to reassess the new business after 2 or 3 years.  If it did not look as if it would grow to replace the income he was earning at Goldings plus the part time income his wife was earning he would discontinue it and go back to plant operation.  For reasons I outline later I am not satisfied that he would in fact have gone back to plant operating but for the accident.

[28] In his quantum statement Mr Vaughan claimed to be earning $826 net per week at Goldings when he left.  This seems to me to be an exaggeration.  His claimed net earnings for the last 10 weeks at Goldings to 6 September 1995 were $8,263.  As appears from the Group Certificate attached to the 1996 tax return (part of exhibit 7) from the gross sum of $10,057 (excluding a non taxable lump sum payment on termination of employment of $2,220) tax of $4014.70 was deducted.  The actual net weekly earnings were only $6,042.21 or approximately the same net figure per annum as was earned in the previous year.  The final tax may have been different because the overall earnings for the whole year were reduced.

[29] In 1995/6 Mr Vaughan earned $6,256 from the partnership, in 1996/7 the earnings were $2,228 and in 1997/8 it was $17,419.  These figures (taken from the tax returns) represent half the earnings of the partnership after expenses (see ex6 pg 20).  The total net earning would be therefore $12,512, $4,457 and $34,790.

[30] The principal issue raised in relation to quantum was whether Mr Vaughan suffered from a pre-existing back condition which made it impractical or unlikely for him to return to plant operating if the figures set out represent the likely earnings of the partnership and whether, irrespective of the fall from the chair he would be likely to be in his present disabled state anyway.

[31] The report of Mr Salzman (ex 10) assesses Mr Vaughan’s verbal IQ, performance IQ and full scale IQ and put him in the borderline mentally retarded range in each case.  This may in part explain his claimed inability to remember in response to many of Mr Flint’s questions but despite this I found him unresponsive and evasive where an answer might be thought to be adverse to his interests.

[32] Dr Bulwinkel was Mr Vaughan’s original treating orthopaedic surgeon.  In a report to the G.P, Dr Fell of 22 May 1997 (ex 18) Dr Bulwinkel wrote:

“At this time I cannot find any orthopaedic reason for his aches and pains and certainly cannot relate his current pains with the fall off the chair in September 1996 at the Dingo roadhouse with any ‘hard’ clinical pathology.”

[33] In a report of 7 April 1997 to the solicitors for Mr Vaughan (ex 1) Dr Bulwinkel had made a clinical diagnosis of L4/5 intradiscal disruption but conceded that this diagnosis was not confirmed by an M.R.I..  Dr Bulwinkel’s prognosis was that the symptoms should eventually resolve.  In a report dated 28 September 2000 (ex 12) Dr Bulwinkel revised his prognosis and expressed the view that the condition was likely to be permanent in view of its non resolution over a significant period of time.

[34] A second orthopaedic surgeon, Dr Macfarlane in a report dated 19 May 1997 (ex 23) considered the plaintiff had suffered a musculo ligaomentous  injury which should settle.  In December 1998 (ex 24) this opinion was revised to one of soft tissue injury but which was likely to be permanent.  Both Drs Bulwinkel and Macfarlane considered the plaintiff unsuited to plant operation.  But considered him fit for light work.

[35] Dr Gillet, the defendant’s orthopaedic surgeon, considered the plaintiff to have suffered a soft tissue injury.  Dr Gillet’s opinion as expressed in his report of 19 February 1999 (ex 32) was that the plaintiff could continue to drive heavy machinery providing he could change posture regularly.  In other words he would need to be in a position to get out of the machine, stretch and move about every hour or so.  Mr Vaughan would participate in that employment with some discomfort.

[36] The attack on the medical evidence by the defendant centred around whether Mr Vaughan had been frank in recording his history of back trouble to the various medical practitioners.

[37] In cross examination Mr Vaughan denied having any lower back problems before the incident in the roadhouse (T21.18).  Specifically, Mr Vaughan denied attending a chiropractor, Dr Hobson for treatment for low back pain in 1991 (T22.41, T25.1).  Mr Vaughan said to Dr Bulwinkel in 1997 that before the incident in the roadhouse in 1996 he had had occasional episodes of minor back pain which were quite successfully treated by chiropractic manipulation (see ex 11, p 2).  Something similar was said to  Dr Macfarlane at about the same time (ex 23, p. 2).  Mr Vaughan apparently denied any prior back problems to Dr Gillet (ex. 32, p. 2).

[38] The true history which I find is as follows.  The plaintiff in fact consulted Dr Hobson regarding low back pain on 11 November 1994, 27 January 1995, 18 February 1995, 30 June 1995 and 11 August 1995.  On 12 March 1996, Mr Vaughan attended a Dr Errol Harris, chiropractor.  The history card was filled out by Mrs Vaughan in Mr Vaughan’s presence (ex. 19).  I am satisfied that the history given is likely to be accurate.  Relevently the major complaint was identified as “painful lower back and neck”.  The symptoms were said to be made worse by “standing too long, operating machinery”.  On 10 May 1993 Mr Vaughan was referred by his GP to an orthopaedic surgeon for assessment for “a chronically painful back”. 

[39] When these matters were put to Dr Bulwinkel he said in re-examination that they might cast doubt on whether or not the fall from the chair was in fact the cause of the plaintiff’s symptoms (T75.15).  Dr Macfarlane was not inclined to change his opinion when the same matters were put to him (T136.50) although I am not sure from the evidence whether this adherence is not only as to the prognosis and extent of disability but also to the cause.  As to the latter any opinion could be no more than one that the stated cause is consistent with the symptoms because the doctor is wholly confined to the history given by the patient in attributing the symptoms to an event.

[40] Having looked at all the evidence I am satisfied that prior to September 1996 the plaintiff suffered from recurring low back problems which made work as a plant operator at least uncomfortable.  This is consistent with the lay evidence of Miss Phillips.  Miss Phillips gave evidence of observing Mr Vaughan in Dingo prior to the accident and of his carrying himself in ordinary activities in a particular way which Miss Phillips, herself a sufferer of low back pain, could associate from personal experience with such pain (T177-8).  While I would not act on this evidence alone it seems to me to be consistent with the documented history of treatment.

[41] I am satisfied that Mr Vaughan did suffer an injury on 13 September 1996 but it seems to me more likely that it aggravated an existing condition.  The subsequent aggravated injury has been quite disabling.  Since September 1996 Mr Vaughan can’t drive extended periods.  He has trouble standing for any length of time.  He has trouble walking especially on uneven surfaces.  The pain is not consistent but ebbs and floes in severity while being always present.  The plaintiff has trouble sleeping and says his sex life has been affected.  As to the latter if this is as a result of the back condition it supports the finding of pre-existing pain because the plaintiff was complaining of sexual difficulties as early as 1993 (T.141-2).  I am not persuaded that the sexual difficulties are related to the incident in the roadhouse.

[42] Because the x-rays do not reveal abnormalities in the discs either as a cause of the prior condition or a cause of the current condition I cannot be satisfied that the prior condition would ultimately have become worse if not aggravated in September 1996.  I should therefore treat the aggravation of symptoms and the disability consequent on that as wholly referable to the accident.  Despite the pre-existing condition, however, I cannot be satisfied on the evidence that the plaintiff's decision to transfer from plant operating to training was related to the back condition.  However, the pre-existing condition was such that I am not satisfied that ultimately the plaintiff would have gone back to plant operating which seemed to have some ill effect on his back.

[43] The claim for economic loss should be assessed on the potentional of the M-Tech business.  Although the plaintiff has a residual earning capacity it is limited by his lack of skills for work outside his usual field and intellectual limitations.  I should add that the plaintiff has abandoned the bulk of the M-Tech business because his condition makes him no longer able to carry out the training aspects which provide most of the revenue.  This is because of the standing and walking on uneven ground and the need to climb on and off the machines.  The inability to continue these facets of the job is consistent with the medical evidence.

[44] Notwithstanding that Mr Vaughan only returned for taxation half the income of the M-Tech business and his wife returned the other half what is being compensatied is Mr Vaughan’s lost earning capacity.  This capacity is represented by the total partnership earning for which he is responsible and is thus represented by the gross partnership profits: see Husher v Husher (1999) 197 CLR 138.

[45] With the handicaps I have mentioned it seems to me that the plaintiffs realistic employment options are limited to some sort of light storeman’s job or as a gate keeper or similar.  Such jobs are not likely to be easy to come by.  I assess the plaintiff’s residual capacity taking account of the difficulty in getting work at $200 per week.  In the M-Tech business the earnings peaked at between $600 and $700 gross taxable per week in 1997/8.  Although there was an unusual feature of this in that it included a significant sum earned in Darwin in a one off contract the business was still in its growth phase and but for the injury might well have continued to increase.  It is therefore reasonable to take as an average likely earning figure but for the accident the sum of $650 gross which reduces to $500 per week after tax in round figures.  The net loss of future earning capacity is $300 per week to age 65, a total of 22 years which discounted at 5% comes to $211,200.  That sum should be further discounted by 15% to allow for the vicissitudes of life, making $179,520.

[46] Past economic loss should be based on the same weekly figure less the amount actually earned.  Total actual income of the period since the accident totals $69,746 (including unemployment benefits).  The loss based on $650 per week gross is thus $71,200 gross or $284 net per week.  The total loss since the accident is, therefore, $62,000 in round figures.

[47] Since I think it likely the plaintiff would have remained self employed it is not appropriate to allow for lost superannuation except in a notional sense for the future if the plaintiff got out of the plant business altogether and took other paid work.  I allow $6000 for the future only.

[48] I am not satisfied that the plaintiff is necessarily unable to do tasks in fact undertaken by his wife (see ex 6, para 32).  The extent of disability outlined by Dr Macfarlane (T136) suggests that most chores could be performed with discomfort.  This is born out by the evidence of Miss Phillips at T179.15 in relation to the building of yards at Dingo after the accident.  This involved Mr Vaughan hammering in wooden posts with sledgehammer (T180.45).  I accept, however, that more strenuous activities probably result in a need by Mr Vaughan for massage or other assistance of this type from Mrs Vaughan.  I will allow a global sum for past and future care based loosely on three hours a week.  The agreed rate for past care is $10 per hour and for the future $12 per hour.  At 3% discount this equates to roughly $6,500 for the past and $42,000 for the future.

[49] Mr Vaughan sees his general practitioner for prescription drugs about once a month at a cost of $28.  The drugs for pain relief cost about $17 per month.  These expenses are likely to continue.  Over the life of the plaintiff these costs will total about $9,000 which I allow.  The plaintiff has also been recommended to a pain management course which at present will cost about $6,000.

[50] In relation to pain and suffering I allow $40,000 for the aggravation of the existing condition referred to earlier.  The result is the following award of damages:

Pain and suffering   40,000.00

Interest on $20,000 for 4.17 years @ 2%                1,668.00

Past economic loss   62,000.00

Interest @ 4% on $49,595   8,272.00

Future economic loss   179,520.00

Future superannuation   6,000.00

Past care   6,500.00

Interest @ 4%   1,084.00

Future care   42,000.00

Future medical   9,000.00

Pain Clinic   6,000.00

Specials (agreed)   4,494.00

Interest on specials (agreed)          626.00

Total  $367,164.00

[51] I give judgment for the plaintiff against the defendant in the sum of $367,164 and will hear argument as to costs.