Victorian WorkCover Authority v Alcoa Portland Aluminium Pty Ltd
[2006] VSC 502
•15 December 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 5411 of 2006
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| ALCOA PORTLAND ALUMINIUM PTY LTD | Defendant |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 DECEMBER 2006 | |
DATE OF JUDGMENT: | 15 DECEMBER 2006 | |
CASE MAY BE CITED AS: | VWA v ALCOA PORTLAND ALUMINIUM PTY LTD | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 502 | |
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INDEMNITY APPLICATION – s.138(1),(3) of Accident Compensation Act 1985 – application of Wrongs Act 1958 to hypothetical assessment of damages under s.138 of Accident Compensation Act – whether s.28IA(2) of Wrongs Act to be read disjunctively – Grice v State of Queensland [2005] QCA 272 – Griffiths v Kerkemeyer damages – upkeep of joint family home – future loss of earning capacity discount rate to be calculated by reference to Wrongs Act – indemnity for medical reports obtained by authority – s.s.5 & s.99(1)(a) of the Accident Compensation Act – Future medical expenses
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Forrest QC with Mr D.G. Brookes | Wisewoulds |
| For the Defendant | Mr G.J. Moloney | Hunt & Hunt |
HIS HONOUR:
By proceeding No. 1366 of 2005 ("the worker's proceeding"), Mr Husson sued for damages in respect of personal injuries sustained in the course of his employment by Keppel Prince Engineering Pty Ltd ("KP"), when carrying out work at the smelter operated by Alcoa Portland Aluminium Pty Ltd ("PA").
On 3 November 2006 I gave judgment for Mr Husson in the worker's proceeding in the sum of $594,763 (inclusive of interest), and made consequential orders as to costs.[1]
[1]That judgment is the subject of appeal in which PA contends in the first instance, that it should not have been found liable with respect to such claim.
As between defendants I apportioned liability as to 20% against KP and as to 80% against PA.
In the present proceeding the plaintiff ("VWA") seeks partial indemnity from PA in respect of compensation paid and payable by VWA to Mr Husson.
The present proceeding was initially heard together with the worker's proceeding.
Following my judgment in the worker's proceeding and in reliance upon the evidence at the joint hearing together with a further certificate as to moneys paid out by it, VWA now seeks orders for partial indemnity from PA.
Section 138(1) and (3) of the Accident Compensation Act 1985 ("ACA") relevantly provide:
"138. Indemnity by third party
(1)Where an injury or a death for which compensation has been paid, or is or may be payable, by the Authority, a self-insurer or an employer was caused under circumstances creating a legal liability in a third party to pay damages or that would, but for section 134A, create such a liability in respect of the injury or death, the Authority, self-insurer or employer is entitled to be indemnified by the third party in accordance with this section.
…
(3)The amount which a third party is required to pay as indemnity under sub-section (1) is the lesser of—
(a)the amount of compensation paid or payable under this Act in respect of the injury or death; and
(b)the amount calculated in accordance with the formula—
where—
Xis the extent, expressed as a percentage, whereby the third party's act, default or negligence caused or contributed to the injury or death;
Ais the amount of damages (disregarding the extent, if any, whereby any other person's act, default or negligence caused or contributed to the injury or death) for pecuniary loss and non pecuniary loss which the third party is or would have been liable to pay in respect of the injury or death were it not for the provisions of this Act and the Transport Accident Act 1986;
Bis the amount recovered or recoverable by the Authority, the self-insurer or the employer under section 137 from the Transport Accident Commission (otherwise than under a settlement);
Cis the amount paid by the third party in respect of the injury or death to the worker or the dependants of the worker under any settlement of, or judgment in, an action by the worker or dependants of the worker against the third party."
There is no dispute in the present case that compensation was paid by VWA in respect of Mr Husson's injuries.
PA contends (for reasons pursued in the appeal in the worker's proceeding) that Mr Husson's injuries were not "caused under circumstances creating a legal liability (in PA) to pay damages", within the meaning of s.138(1) of the Act. For the reasons stated in my judgment in the worker's proceeding I reject this contention.
Likewise PA disputes that its default or negligence caused or contributed to Mr Husson's injuries to the extent of 80%. Again, for the reasons stated in my judgment in the worker's proceeding, I reject this contention.
Both parties accept that the conceptual basis of factor A referred to in s.138(3) of the ACA is to be ascertained by reference to a hypothetical assessment of damages. In Esso Australia v VWA[2] Winneke P said as follows:
"Thus, it is said that the words 'the amount of compensation paid or payable under this Act', where appearing in sub-s.(3)(a), should be read as meaning 'accrued and payable'; and that they cannot reasonably contemplate an amount produced by a calculation of all future payments which might be payable to the worker pursuant to the Act. Further, it is said that sub-s.(3)(b) is to be construed as providing a 'ceiling' to the indemnity contemplated by the section - a 'ceiling' produced, as I have said, by the third party's notional liability at common law for pecuniary and non pecuniary loss, and then reduced in accordance with the third party's share of responsibility for that loss." (My emphasis)
[2]1 VR 246 at 252.
Winneke P continued:[3]
"Construed in this way, it is said, the court can identify, once and for all, an entitlement to indemnity against a negligent third party which will not exceed that party's proportionate responsibility for the worker's notional damages at common law for pecuniary and non pecuniary loss. If the notional damages at common law, assessed in accordance with sub-s.(3)(b), are less than the amounts of compensation already paid or accrued and payable, then the entitlement to indemnity contemplated by the section remains the amount so assessed."
[3]Ibid.
On appeal to the High Court Gleeson CJ, Gummow, Hayne and Callinan JJ stated:
"This construction of s.138 should be accepted."[4]
[4]VWA v Esso Australia (2001) 207 CLR 520 at 530 [20].
In VWA v Anderson[5] Ashley J stated:
"[17]Factor A involves consideration in some cases of an hypothetical situation. It requires an assessment of the amount of damages that the third party 'is or would have been liable to pay' were it not for the provisions of the Act and the Transport Accident Act ('TAA'). The grammar of that provision is unsatisfactory; but I think that the meaning is clear enough. Factor A requires determination of the amount of damages which the third party is liable to pay in respect of the injury or death, or the amount of damages which the third party would have been liable to pay in respect of such injury or death were it not for the provisions of the Act and of the TAA. Necessarily, the formula must embrace both factual situations."
[5][2000] VSC 461.
His Honour added by way of footnote:
"In deciding which of the two situations applies in an individual case, I think that the better view is this: where the commencement of a proceeding is not altogether precluded, but is subject to inhibitions such as the threshold and ceiling provisions of s.135A and the prohibition upon making a claim for medical and like expenses, or for Griffiths v. Kerkemeyer[6] damages, then the first situation applies; but in cases where a proceeding simply cannot be brought, the second situation is that which applies."
[6](1977) 139 CLR 161.
The Issues
There is no dispute as to the following components of factor A in the present case.
(a) general damages $160,000;
(b) past medical and like expenses $37,320;
(c) past economic loss $265,500.
There is dispute:
(a)as to whether any and if so what amount should be included for Griffiths v. Kerkemeyer damages;
(b)as to what is the appropriate discount rate to use in calculating the present rate of future pecuniary loss;
(c)as to the basis on which future economic loss should be calculated in accordance with my judgment in the worker's proceeding;
(d)in determining the amount of compensation "paid or payable under the Act in respect of (Mr Husson's) injury", whether the costs and medical reports obtained on behalf of VWA in respect of Mr Husson should be included;
(e)as to the appropriate quantum of the claim for future medical expenses.
Part VB of the Wrongs Act
Section 138(3)(b) of the ACA is concerned with the assessment of damages:
"… for pecuniary loss and non-pecuniary loss which the third party is or would have been liable to pay in respect of the injury or would have been liable to pay in respect of the injury or death were it not for the provisions of this Act and the Transport Accident Act 1986."
VWA contends that at common law such damages would include Griffiths v. Kerkemeyer damages in respect of household tasks formerly performed by Mr Husson but subsequently unable to be performed by him as a result of his injuries and undertaken by his wife.
PA contends that in ascertaining the relevant hypothetical amount, regard should be had to the provisions of Part VB of the Wrongs Act 1958 ("the Wrongs Act"), which is headed "Personal Injury Damages".
Section 28C of the Wrongs Act relevantly provides:
"28C. Application of Part
(1)This Part applies to an award of personal injury damages, except an award that is excluded by sub-section (2).
(2)The following awards of damages are excluded from the operation of this Part—
…
(c)an award to which Part 4 of the Accident Compensation Act 1985 applies;
(3)This Part extends to an award of personal injury damages even if the damages are recovered in an action for breach of contract or in any other action."
PA contends in turn that the provisions relating to Griffiths v. Kerkemeyer damages contained in ss.28IA-28IC and ss.28ID-28IF of the Wrongs Act apply to hypothetical assessments of the type in issue.
The former provisions cover gratuitous care services to be given to a claimant and the latter govern gratuitous care services provided by a claimant to others.
VWA contends that the provisions of the Wrongs Act have no application:
(a)because this is not a claim for an award for personal injury damages; and
(b) alternatively by virtue of s.28C(2)(c).
In Sweedman v TAC[7] Gleeson CJ, Gummow, Kirby and Hayne JJ recorded that it was accepted by the parties that the obligation of the appellant to indemnify was distinct from any underlying claim in tort. Their Honours further observed:
"[29] The requirement to fix the appropriate degree of attribution to the negligence of the tortfeasor before quantification of the amount recoverable by the Commission on the indemnity, suggests a characterisation more akin to indebitatus assumpsit than to the old action of debt. In that vein, in the present case, Nettle JA described the right of indemnity as 'enforceable as a quasi-contractual cause of action in the nature of a quantum meruit'. That view of the matter was consistent with the view of Bray CJ on analogous provisions in other legislation. On that classification, and as explained by Bray CJ in the authorities just cited, for the purposes of the choice of law rules, the law applicable to the action, the lex causae, will be the law of the State with which the obligation of the appellant to indemnify the Commission has the closest connection." [Citations omitted].
[7](2006) 80 ALJR 646 at 653 [27].
I accept that the claim for indemnity pursuant to s.138 is not a claim for an award of personal injury damages. It seems to me, however, that this premise does not lead to the conclusion for which VWA contends.
The essence of the calculation of factor A in cases such as the present, is that it will require the hypothetical assessment of the award of damages payable "were it not for the provisions of this Act".
It is accordingly appropriate to ask whether the relevant provisions of the Wrongs Act would apply to a claim for pecuniary loss and non-pecuniary loss in respect of Mr Husson's injury, were it not for the provisions of the ACA. The answer to this question is "yes".
The relevant provisions of the Wrongs Act would apply to a claim of the kind hypothetically postulated. Section 28C(2)(c) is no answer to PA's contention, because the hypothetical award of damages would not be one "to which Part 4 of the ACA applies." Section 138(3) of the ACA which determines the framework of the hypothetical analysis expressly requires the assessment of such damages to be undertaken on the basis which would apply "were it not for the provisions of the Act."[8]
[8]Cf VWA v Anderson (above) where Ashley J considered and applied the provisions of legislation applicable to air carriers.
Application of Wrongs Act
I now turn to the application of the relevant provisions of the Wrongs Act to the facts in issue. Section 28IA of the Wrongs Act provides:
"28IA. Limitation on damages for gratuitous attendant care
(1)No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that—
(a)there is (or was) a reasonable need for the services to be provided; and
(b)the need has arisen (or arose) solely because of the injury to which the damages relate; and
(c)the services would not be (or would not have been) provided to the claimant but for the injury.
(2)Further, no damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or are to be provided—
(a) for less than 6 hours per week; and
(b) for less than 6 months."
In the present case the claim made is for the cost of gardening and home maintenance work carried out by Mr. Husson prior to his injury but now carried out by his wife.
The amount claimed is:
(a) past loss (4 hours per week at $20 per hour) $20,000
for 5 years
(b) future loss (4 hours per week at $20 per hour) $56,240
x 703 (multiply to age 65 from April next year)
Total $76,240
There is no dispute that $20 per hour reflects an appropriate commercial rate for the services claimed.
PA contends first that the requirements of s.28IA(2) are to be read disjunctively. I reject this submission. PA has produced no extrinsic material justifying the conclusion that purposive interpretation requires rejection of the plain meaning of the sub-section. The terms of the Act itself do not suggest that what is intended is other than what is stated. The relevant part of the Wrongs Act contains no statement of objectives comparable to those had regard to by the News South Wales Court of Appeal in Geaghan v D'Aubert[9].
[9][2002] NSWCA 260.
The line of New South Wales authority upon which Mr Maloney relied in support of the proposition that the requirements of s.s.(2) are to be read disjunctively, is to be distinguished for like reasons to those stated by the Queensland Court of Appeal in Grice v State of Queensland[10] with whose reasoning I respectfully agree:
"[23]The Queensland Act and the New South Wales Act are not so alike in their subject matter, drafting or legislative framework that s 54(2) of the Queensland Act should necessarily be construed consistently with the interpretation given by the New South Wales Court of Appeal to s 72(2) of the New South Wales Act in Geaghan or to the earlier form of that section in Sullivan. The New South Wales Act applied solely to claims for damages for injuries suffered in motor vehicle collisions whereas the Queensland Act did not apply to such injuries. The Queensland and New South Wales statutes are not part of a uniform national legislative scheme. Of even more significance, the stated objects of the New South Wales Act differed from those in the Queensland Act and were more unequivocally supportive of the interpretation given to s 72(2) in Geaghan. I refer particularly to s 72(1)(b) which restricted payments for gratuitous services to long term needs. The New South Wales Court of Appeal was also influenced by the legislative history of s 72(2), the court's previous interpretation of the section in its earlier form in Sullivan and the relevant Second Reading Speech and Explanatory Notes. All these matters supported the court's interpretation in Geaghan. None of these considerations apply to the interpretation of s 54(2) of the Queensland Act. In my view the interpretation given to s 72(2) of the New South Wales Act in Geaghan does not substantially assist this Court in interpreting the meaning of s 54(2) of the Queensland Act."[Citations omitted].
[10][2005] QCA 272.
Likewise, I respectfully agree with the principle identified in Grice in the following terms:
"[25] The appellant did not refer to another fundamentally important and highly relevant principle of statutory interpretation. Prior to the coming into operation of s 54(2) of the Queensland Act Ms Grice had an unfettered right to seek damages for gratuitous services. A statute will only be regarded as limiting such a common law right if it does so clearly and unambiguously: Potter v Minahan[11], Bropho v Western Australia[12] and Coco v The Queen[13]."
The Evidence as to the Griffiths v. Kerkemeyer Claim
[11](1909) 7 CLR 277 at 304 per O'Connor J.
[12](1990) 171 CLR 1 at 18 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ.
[13](1994) 179 CLR 427 at 437 per Mason CJ, Brennan, Gaudron and McHugh JJ.
The evidence of Mr Husson and his wife supported the view that since being injured he has been unable to undertake manual labour and has been restricted in his capacity to undertake routine domestic gardening and maintenance jobs. Nevertheless, he has continued to "potter" in his garden and to undertake limited amounts of lawn mowing. Further, his condition including in particular his psychological condition has materially improved.
I am not satisfied the evidence established that Mr. Husson’s wife has undertaken more than one hour per week of voluntary domestic work, which would otherwise have been undertaken by him. As a result, as he says, the house has become "run down".
Such work is not direct "care" of Mr Husson, it is a contribution towards the upkeep of the joint family home.
Further, Mr Husson's loss of capacity to undertake gardening and other maintenance tasks, may in part be seen as a loss of recreational opportunity for which he has already been compensated.
In Kars v Kars[14] the High Court affirmed that the underlying basis of a Griffiths v. Kerkemeyer claim is the demonstrated "need" for services consequent upon his injuries. Dawson J stated at 360:
"Once it is recognised, as it must be, at all events after the decision of this Court in Van Gervan v Fenton[15], that a plaintiff receives the value of services voluntarily provided by way of damages as compensation for the loss suffered by reason of the injuries which manifests itself in the form of a need for those services, and that the need does not have to be productive of financial loss, then cases such as the present one are taken outside the area of special damages, such as loss of wages or out-of-pocket expenses which, at least for the past, may be calculated simply by adding them up. True it is that the value of services provided or to be provided gratuitously to satisfy a need will ordinarily provide a guide in quantifying the damages to be awarded for the loss giving rise to the need, but those damages are general damages which are incapable of precise mathematical calculation and remain at large until quantified. It has been conventional when juries are called upon to assess damages to classify general damages under three heads: economic loss, loss of enjoyment of life and pain and suffering. Economic loss is often said to be the future loss of wages or loss of income but in fact it is for the loss of earning capacity that such damages are awarded. As Fullagar J pointed out in Paff v Speed:[16]
'Actual loss of wages or loss of income will have been already taken into account in assessing special damages, and what the plaintiff must receive in respect of the future is compensation for total or partial incapacity to earn income'."
[14](1996) 187 CLR 354.
[15](1992) 175 CLR 327.
[16](1961) 105 CLR 549 at 559.
The joint judgment of Toohey, McHugh, Gummow and Kirby JJ stated at 379:
"1. The starting point to explain our conclusion is a clear recollection of the principle that the Court is not concerned, as such, to quantify a plaintiff's loss or even to explore the moral or legal obligations to a care provider. It is, as has been repeatedly stated, to provide the injured plaintiff with damages as compensation for his or her need, as established by the evidence.[17] The fact that a defendant fulfils the function of providing services does not, as such, decrease in the slightest the plaintiff's need. Keeping in mind this explanation of the basis for the rationale for the exceptional recovery under Griffiths v Kerkemeyer[18] is essential for working out, in the most consistent and least unsatisfactory way, the practical problems and those of legal principle presented in this case. This was the approach taken to the task of calculation of which Van Gervan v Fenton[19] is an illustration. This case simply identifies another practical problem, the guiding principle for the solution of which is the same: the plaintiff's need."
[17]Griffiths v Kerkemeyer (1977) 139 CLR 161 at 174, 192; Nguyen v Nguyen (1990) 169 CLR 245 at 262; Van Gervan v Fenton (1992) 175 CLR 327 at 331-333, 338.
[18](1977) 139 CLR 161.
[19](1992) 175 CLR 327.
The essential component of need is further entrenched by s.28IA(1)(a) and (b).
In my opinion the evidence called in the worker’s proceeding demonstrated a past need for home maintenance services to an extent of one hour per week. Insofar as the future is concerned that need is likely to continue indefinitely. It is a direct consequence of Mr. Husson’s continuing inability to undertake manual labour which places stress on his back. Accordingly, I will allow one quarter of the amount claimed:
(a) past loss (1 hour per week @ $20 per hour) $ 5,000
for 5 years
(b)future loss (1 hour per week @ $20 per hour)
x 703 (multiply to aged 65 from April next year) $14,060
Total $19,060.
Future Loss of Earning Capacity
In the worker's proceeding a 6% discount rate was required to be applied to the claim for future economic loss by reason of s.134AB(32) of theACA.
It follows from the above reasoning at [26] – [29] that the hypothetical assessment of damages now required should be undertaken by reference to the 5% rate provided for in s.28I(1) of the Wrongs Act.
It was the Court's intention as stated in my judgment of 3 November 2006 that damages for Mr Husson's future loss of earning capacity be assessed on the basis that:
(a) he would in all probability suffer a further year of total loss of earnings;
(b)he will thereafter suffer a further 50% loss of earning capacity until aged 65; but
(c)that such future loss must be discounted by a further 20% to reflect his particular vulnerability to the vicissitudes of life.
The quantum of the appropriate figure for future economic loss was settled by agreement in the worker's proceeding, after I had stated the relevant principles to be applied. I propose to give the parties a like opportunity in the present case.
Medical Reports
Section 138(3)(a) of the ACA requires assessment of the amount of compensation paid under the Act.
Section 99(1)(a) of the ACA provides:
"99. Compensation for medical and like services
(1)If there is caused to a worker an injury which entitles a worker to compensation, the Authority or a self-insurer and the employer in respect of the employer's liability under section 125(1)(a)(iii) or 125A(3)(c) shall be liable to pay as compensation—
(a)the reasonable costs of the road accident rescue services, medical, hospital, nursing, personal and household, occupational rehabilitation and ambulance services received because of the injury; and."
The term "medical services" is defined by s.5 of the ACA:
"medical service" includes—
(a)attendance, examination or treatment of any kind by a medical practitioner, registered dentist, registered optometrist, registered physiotherapist, registered chiropractor, registered osteopath or registered podiatrist; and
(b)the provision and as may be necessary from time to time (including at the time of the injury) the repair, adjustment or replacement of crutches, artificial members, eyes or teeth or spectacle glasses; and
(ba)the provision and as may be necessary from time to time (including at the time of the injury) the repair, adjustment or replacement of hearing aids of a type approved by the Authority by a person or a class of persons approved by the Authority; and
(c)the provision by a registered pharmacist on the request of a medical practitioner or registered dentist of medicines or curative apparatus, appliances or materials; and
(d)the provision, on the request of a medical practitioner, by a person approved by the Authority of any health service approved by the Authority; and
(e)the provision by a medical practitioner, registered dentist, registered optometrist, registered physiotherapist, registered chiropractor and osteopath or registered podiatrist of any certificate required by the worker, the worker's dependants, an employer, the Authority or a self-insurer for any purpose relating to the operation of this Act or any report authorised by the Authority or a self-insurer; and
(f)the provision, at the request of a medical practitioner, hospital or provider of a hospital service, of special food or a special food formula; and
(g)the provision, at the request of a medical practitioner, of room temperature control equipment for a person who is unable to adequately regulate his or her own body temperature; and
(h)the provision, at the request of a medical practitioner, of equipment intended to treat or stabilize any injury;
Examples
Examples of equipment referred to in paragraph (h) include life support equipment, ventilators and special lighting.
(i)the provision of anything needed to operate, run, maintain or repair any equipment referred to in paragraph (g) or (h);
Examples
Examples of things referred to in paragraph (i) include electricity, water, lubricating oil and replacement filters and batteries.
Note: Paragraphs (f) to (i) only apply to services provided on or after the date of commencement of section 4 of the Accident Compensation and Transport Accident Acts (Amendment) Act 2003 — see section 260."
VWA submits that it is entitled to claim the cost of reports obtained by it in the course of administering the claim brought by Mr Husson.
Such reports are of two kinds. First, reports from independent specialists who examined the worker at the request of VWA pursuant to s.112 of the Act, and secondly, reports obtained by VWA from the worker's treating practitioners.
In my view VWA's submission is misconceived. The phrase "the amount of compensation paid or payable" in s.138(3)(a) is to be given the same meaning as in s.138(1), namely compensation paid or payable for an injury or death "under circumstances creating a legal liability in a third party to pay damages." As the opening words of s.138(3) make clear the "amount of compensation paid or payable" in s.138(3)(a) is one of two alternatives defining "the amount which a third party is required to pay as indemnity under s.s.(1)." The amounts claimed do not fall within that class of payment to which the authority is entitled to indemnity under s.138(1).
Section 99 of the ACA is concerned with compensation. It is comprised within Part IV of ACA which governs the payment of compensation. The expenses in issue are not compensation. The definition relied on does not expand the category of what was in fact paid by way of compensation. The costs in issue were not the reasonable costs of medical services "received because of the injury". They were incurred by reason of the intervening actions of VWA.
Future Medical Expenses
VWA claims future medical expenses comprising:
(a) GP expenses based on the average
expenditure since 26 August 2005 $12.23 per week
(b) pharmaceutical expenses $ 8.53 per week
(c) Bowen therapy expenses $11.53 per week.[20]
[20]Applying the 3% multiplier to death this gives rise to a claim of $34,195.
It is conceded that the monthly amounts claimed reflect reasonable rates but it is contested that there is an ongoing need for the level of treatment claimed.
In my view the balance of the medical evidence supports the view that Mr Husson will require ongoing medical supervision and medication on a continuing basis. Further, the probability is that such medication will not be limited to analgesic medication but will continue to include medication directed to containing and controlling depression. On the other hand I accept that, as PA submits, it is unlikely Mr Husson will continue to incur the Bowen therapy or like expenses on a continuing basis and allowance for, say, two years is appropriate. I also accept that some discount should be made for the vicissitudes of life in the sense that other health problems may become the principal or sole cause of his need for medical treatment.
Having regard to the evidence as a whole it appears to me that an appropriate figure for future medical expenses is $25,000.
I will hear counsel further as to the appropriate overall calculation and final orders in the matter.
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