Villasevil v Pickering
[2000] WADC 51
•22 FEBRUARY 2000
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: VILLASEVIL -v- PICKERING [2000] WADC 51
CORAM: GROVES DCJ
HEARD: 19-22 JULY 1999
DELIVERED : 22 FEBRUARY 2000
FILE NO/S: CIV 1814 of 1997
BETWEEN: JOSEFA VILLASEVIL
Plaintiff
AND
JOSEPH HENRY PICKERING
Defendant
Catchwords:
Damages - Assessment - Personal injuries from motor vehicle accident - Injuries from prior accident aggravated - Fractures to right tibia and fibula and to the lateral tibial plateau at the knee - Crush fracture of right talus - Underlying degenerative change in back and knee - 46 year old part-time real eastate agent.
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943 as amended s3C(3) and s3C(5).
Result:
General damages $22,350, past loss of earnings $17,500, loss of future earning capacity $37,948, future medical treatment $10,000, past gratuitous services $8,709.12, special damages $22,068.00.
Representation:
Counsel:
Plaintiff: Mr I L K Marshall
Defendant: Mr D M Bruns
Solicitors:
Plaintiff: S C Nigam
Defendant: Jackson McDonald
Case(s) referred to in judgment(s):
Black v MVIT [1986] WAR 32
Griffiths v Kerkemeyer (1977) 139 CLR 161
Jarvis-Vagg v Eldrid, unreported; FCt SCt of WA; Library No 970405; 15 August 1997
Kars v Kars 141 ALR 37
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Newman v Nugent (1992) 12 WAR 119
Paul v Rendell (1981) 34 ALR 569
Southgate v Waterford (1990) 21 NSWLR 427
Van Gervan v Fenton (1992) 109 ALR 253
Wylde v Aristondo 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997
Case(s) also cited:
Bowen v Tutte (1990) A Tort Rep 81-043
Cardiff Corporation v Hall [1911] 1 KB 1017
Dettenmaier v Minister for Works [1979] WAR 203
Jongen v CSR (1992) A Tort Rep 81-192
Wade v Allsop (1976) 10 ALR 353
GROVES DCJ: The plaintiff claims damages from the defendant for injuries suffered in a motor vehicle accident on 17 March 1996. Liability is admitted and the matter proceeded by way of an assessment of damages. The defendant denied that the plaintiff sustained the injuries, loss and damage alleged and further pleaded:
"4.If the plaintiff sustained the injuries, loss and damage alleged (which is denied), then the injuries, loss and damage were caused or alternatively contributed to:
(a)by injuries sustained in a motor vehicle collision on or about 24 September 1993; or
(b)by a pre‑existing degenerative or other condition."
Thus the degree, if any, to which the plaintiff's present condition results from the earlier accident or from a pre‑existing degenerative condition is very much in issue in these proceedings and it is necessary therefore to review the complete background.
Pre‑accident history
The plaintiff was born on 26 April 1949 in Antequera in Spain. She came to Australia with her parents, arriving in Perth in 1962. Prior to arriving in Australia she had completed year 10 at the La Victoria Convent in Antequera. She continued her schooling in Australia but left school at about age 15 years. She went with her parents to Whyalla in South Australia where she worked for 3 or 4 years as a shop assistant in a delicatessen and in a supermarket. With her family she returned briefly to Fremantle where she worked in a delicatessen and when they returned to Whyalla she then worked for some years as a sales assistant at Colmart.
In 1972 the plaintiff married Angel Villasevil. They came to live in Perth where she worked for 18 months as a sales assistant in a chemist shop. A son was born on 8 December 1974. In the following year she worked as a shop assistant/senior sales assistant in various stores before being employed by the Health Insurance Commission as a temporary full‑time employee as a Direct Bill Processor. She worked there for approximately 2½ years prior to the birth of her daughter on 11 November 1978. She returned to work with the HIC for one month in 1979. From November 1984 to November 1987 she was again employed by the HIC as a Direct Bill Processor. She left that employment to manage her own coffee shop from November 1987 to January 1989. In 1989 she qualified as a real estate and business sales representative and worked on a part‑time basis as a real estate agent with Ratto Parker & Associates for 7 months. From 1990 to April 1992 she was employed on a part‑time basis by South Terrace Realty. From 1 November 1990 to 30 June 1991 she was also employed as a part‑time sales assistant at a Fremantle duty free store.
The plaintiff and her husband divorced in about February 1991. From 8 May 1992 to 11 November 1994 the plaintiff was employed on a part‑time basis by Fremantle Estate Agency.
The first accident
On 25 September 1993 the plaintiff was driving her motor vehicle and was stationary waiting for a gap in oncoming traffic so that she could turn into the driveway of her home. Whilst stationary another vehicle crashed into the rear of her car. She sustained injuries to her cervical spine, upper thoracic spine and right shoulder. She attended hospital the next day where a diagnosis of whiplash injury was made. No x‑rays were taken and treatment consisted of Panadol. On 28 September 1993 she attended her general practitioner Dr Jennifer Milligan. On examination she was tender C6‑T2 over the left sterno‑mastoid and left lower cervical and upper thoracic spine. Movements were decreased, extension slightly decreased, flexion and rotation right more than left. A diagnosis of soft tissue injury was made and treatment consisted of rest and Panadol. In the months following she was reviewed on a number of occasions by Dr Milligan and was referred for physiotherapy. She complained of intermittent headaches, difficulty turning her neck and using her arm to dress, drive and difficulty with sleep. Voltaren was prescribed. It was her evidence that by April 1994 she had almost recovered and was back at work.
She continued in her employment with Fremantle Estate Agency through until November 1994. In April, May and June 1994 she had unsuccessfully sought employment in other areas. From 21 November 1994 to 28 April 1995, when her employment was terminated, she worked on a part‑time basis for Asia Securities Pty Ltd as a housekeeper. She thereafter unsuccessfully applied for a number of jobs in various occupations. From 16 September 1995 to 26 January 1996 she was employed on a part‑time basis by Satterley Real Estate as a housekeeper. She decided to leave that employment because she was unable to physically continue with the work. She said they had a disagreement.
The plaintiff was reviewed by Mr Nicholas Anastas, orthopaedic surgeon, on 13 November 1995. His assessment was that the plaintiff was left with a collective disability of mild severity in her cervical spine, upper thoracic spine and right shoulder due to the motor vehicle accident on 25 September 1993. He assessed her disability as follows:
(a)The disability in her cervical spine is 2.5 per cent loss of total function of her cervical spine (excluding thoraco‑lumbar spine).
(b)The disability in her upper thoracic spine is 2.5 per cent loss of total function of her thoraco‑lumbar spine (excluding cervical spine).
(c)The disability in her right shoulder is 2.5 per cent loss of efficient use of the whole of her right upper limb.
As to her capacity to re‑enter the workforce Mr Anastas would have cleared her for work which did not involve repetitive heavy lifting and the type of work that she should be able to cope with on a full‑time basis without any problem would have been that of a shop assistant, spare parts sales, console operator for a petrol station, ticket seller, ticker collector, reception work and ushering. He did not consider that her symptoms would be a factor in forcing her into an early retirement.
Mr Stewart Brash, orthopaedic surgeon, saw the plaintiff on 6 February 1996. This was just 5‑6 weeks before his second accident. At that time she was complaining of constant neck pain radiating to the back of both shoulders and to the top of the head especially on the right side. Mr Brash reviewed x‑rays and a CT scan of the cervical spine which showed degenerative changes at C5/6 and C6/7. He concluded that the plaintiff suffered a minor soft tissue injury to the cervical spine superimposed upon pre‑existing degenerative changes in the neck. As to the right shoulder he concluded that she had an impingement syndrome which was due solely to naturally occurring degenerative changes as well as the congenital anatomy of that area. It could not be related to the accident. He concluded that her then condition was due to naturally occurring degenerative changes in the shoulder and cervical spine and it was his opinion that there would be no permanent residual disability which could be objectively related to the accident of 25 September 1993.
The plaintiff was reviewed at regular intervals by her general practitioner Dr Milligan. In her report to solicitors dated 22 September 1995 she stated:
"Mrs Villasevil requires a job in which she is not in one position for any length of time and which does not require any heavy work. She would for example find it difficult to sit at a computer for long periods."
In her report of 23 February 1996 she states that the plaintiff was fit for light duties. She should avoid heavy work, lifting, carrying heavy loads, repetitive work or work involving remaining in one position for long periods. A possible occupation would be in real estate or as a receptionist.
The plaintiff described her general health as good immediately prior to the second accident. She said she had fully recovered from the first accident.
Prof Andrew Harper, occupational and public health physician, reviewed the plaintiff on 24 May 1996. Although the review was after the second accident his report of 27 May 1996 was with respect to the first accident. To use his words:
"I was trying to look through the veil created by that second accident to appraise how she was and would have been immediately prior to being run over on the verge."
Her symptoms then, all as a result of the first accident, were described as headaches, soreness in both shoulders, right arm pain in the forearm, numbness of the fourth finger of the right hand and neck pain. She told Prof Harper that prior to the second accident she found that vacuuming, mopping, bending low and lifting heavy objects, all aggravated her symptoms. Working above her head and also rotating her arms aggravated her symptoms. She felt that her symptoms were improving up to the occurrence of her second accident. She had discontinued her recreational activities which had included squash, sewing and dancing.| She told Dr Harper that prior to the second accident she was doing some of the housework and sharing some with her daughter. Whilst she did the shopping and cooking she needed help to hang out clothes, her sleeping had been disrupted and she had been unable to find a comfortable position, dressing had been made difficult as she was unable to rotate her arms sufficient to put her hands behind her back. Sitting tolerance was 20 minutes. Stairs were made difficult due to the need to look down and this aggravated her shoulder and neck symptoms. Driving was difficult due to the need to twist her neck. She had difficulty with doing paper work due to the need to flex her head and look down.
Based on the information given to him and his physical examination Prof Harper concluded that the consequence of the first accident was that the plaintiff was "totally incapacitated to work as a real estate agent and as a housekeeper and for other work within her training and experience". His prognosis was that whilst there would be continuing improvement of her neck and shoulder symptoms it would not be advisable for her to undertake an occupation requiring repeated activity involving the upper girdle and the head down position. His prognosis was for a degree of improvement but that she was likely to have some degree of permanent disability due to the first accident. He stated:
"Possibly she will be unable to regain sufficient physical tolerance to return to the real estate industry. She has a reasonable prospect of recovering sufficiently to work at least half time as a computer operator and possibly as a shop assistant half time."
The plaintiff brought a claim for damages for the injuries sustained by her in the first accident (District Court action No 2186 of 1995). On 10 September 1997 her claim was settled out of court and she received $9,500 "in my hand".
The second accident
On Sunday 17 March 1996 at about 8.20am the plaintiff was sitting on the front verge of her home at Rockingham Road, Hamilton Hill with her legs outstretched in front of her removing weeds from the lawn. She heard something bang against the kerb, looked up and saw a car coming towards her and less than 2m away. She did not have time to get out of the way and was run over by the vehicle. She was conveyed by ambulance to the Fremantle Hospital where she was admitted complaining of severe pain in her right leg, and bruising to her left leg, right forearm and left hand. There was no reported loss of consciousness.
The Fremantle Hospital report dated 24 July 1996 states:
"On examination Mrs Villasevil was alert and conscious, fully cooperative, and had no headache or head injuries. Her right leg was swollen and bruised and clinically fractured. Circulation was intact. There was minimal tenderness and bruising over the right forearm, left hand and left leg. No abnormality was detected on examination of the head cervical spine, chest, abdomen, pelvis or hips. Neck movements were limited secondary to a previous motor vehicle accident."
X‑rays were taken and it was reported:
"Right tibia and fibula. Almost horizontal fracture at the junction of mid and distal thirds of tibia with approximately one third a shaft width posterolateral displacement, and no significant angulation. There was an associated fracture of the neck of the right fibula, and a slightly depressed fracture of the lateral aspect of the lateral tibial plateau at the knee. Osteophytes around the lateral compartment of the right knee joint indicate a pre‑existing degenerative change, possibly secondary to old trauma."
She was admitted to hospital under the care of Mr P J Bath, orthopaedic surgeon and taken to theatre where the fracture was fixed with the insertion of a intramedullary tibial nail. She was discharged home on 26 March 1996. Physiotherapy was commenced to mobilise the knee and ankle and she commenced partially weight bearing on a Zimmer frame and exercising at hydrotherapy. The fracture went on to heal satisfactorily and by October 1996 she was assessed by the hospital as being fit to return to light duties as she was walking with a mild limp but had a good range of movement in the knee and ankle. On 30 April 1997 the right tibial nail was removed, post operative recovery was uneventful and she was mobilised by the physiotherapists and discharged the next day using arm crutches. She was reviewed by Mr Bath on 15 May 1997 when she commented upon an alteration of sensation over the upper lateral aspect of the right leg, difficulty with fully dorsi flexing the right ankle, diffused pain extending up the right leg to the right side of the trunk and some back pain. It was thought that the symptomatology will be better assessed on a long term basis. At that stage Mr Bath was of the view that the fracture itself was well healed and that there should not be any long term problems with respect to the knee or the ankle and he did not think that the plaintiff would be unable to continue her career in real estate in the long term.
The plaintiff's subsequent medical history
The plaintiff attended on her general practitioner, Dr Jennifer Milligan, following the second accident. She complained of increased pain and stiffness in her neck and shoulder and headaches which the doctor attributed to her having to use a walking frame. Subsequent to removal of the tibial nail she presented with complaints of a sore right knee (post operative) and pain down the lateral side of her foot. With having to use crutches her neck pain and pain in her right shoulder had increased. She later presented complaining that her right ankle and right knee were stiff. She was referred for further physiotherapy and specialist assessment.
Mr Bath reviewed the plaintiff on 30 July 1997 and 6 January 1998. On the first occasion the plaintiff presented an undated typewritten report of four pages containing reference to symptoms in her back, right foot, right groin, right leg as a whole, right knee and calf. After clinical examination on each occasion and review of x‑rays Mr Bath concludes in his report dated 15 May 1998:
"In summary then Mrs Villasevil has current disabilities with respect to her back and her right leg generally.
The problems with the back are those of aggravation of pre‑existing degenerative changes, there are similar degenerative change in the right knee which are ongoing and there are changes seen in the x‑rays of 1991 but obviously there weren't significant problems with the right knee up to the time of the motor vehicle accident as Mrs Villasevil said that she was playing squash up to the time of the (first) motor vehicle accident without symptoms in the right knee.
There have been ongoing problems with stiffness in the right ankle again related to degenerative changes and again it is likely that the motor vehicle accident has set off pre‑existing but asymptomatic degenerative changes here as well. It is unlikely that there had been any significant injury in terms of a fracture to the right ankle as there has been no fracture demonstrated and it was not thought necessary to specifically take x‑rays of the ankle itself on admission. Mrs Villasevil comments that she has always had a significant limp after the accident and this would have been related to the ankle.
The symptoms related to the tibial fracture can be expected to decrease with time. This is with respect to the local tenderness on the shin and also similarly with respect to the soft tissue tenderness on the left shin. The ongoing symptomatology would be related to the lumbar spine and the degenerative changes in the right knee and ankle.
. . .
Mrs Villasevil's work capacity has been compromised and relates to ongoing degenerative changes.
. . .
With the described symptomatology and the signs elicited Mrs Villasevil would not be able to compete in the open work force.
…Mrs Villasevil's injuries sustained at the time were those of a moderate nature but the ongoing disability relates more to aggravation of underlying degenerative changes in the spine and the ankle which in themselves are causing more difficulty than any symptoms arising from the fractured tibia itself."
Mr Bath reviewed the plaintiff again on 26 May 1999 and in his report of that date he concluded:
"There is a permanent disability with respect to the knee and the ankle and probably this could be assessed in terms of 20 per cent loss of normal function at this stage, of the right leg as a whole.
It is not thought that the present disability with the right leg has any relationship to the previous motor vehicle accident on 25.09.93."
Mr Cameron Thrum orthopaedic surgeon saw the plaintiff on 16 March 1998, 8 December 1998 and 5 February 1999. In his report of 22 May 1998 he classified the plaintiff's injuries as being moderate and in reference to her physical residual disabilities stated:
"I would express this as being of the order of 10 per cent of the function of the knee expressed as a percentage at or above the knee. If she goes on to further degenerative changes as a result of her injuries this could rise as high as 30 per cent of the function of the knee in the future. In respect of the tibia I think this has gone on to good solid union. In respect of the ankle and particularly the subtalar joint her lack of movement would suggest a permanent residual disability of the order of 15 per cent of the function of the ankle expressed as a percentage disability of the leg below the knee."
Mr Thrum was of opinion that the plaintiff had a capacity for sedentary or semi‑sedentary work but that she would have a permanent partial incapacity. He believed that she should avoid occupations in which she was required to be on her feet for extended periods of time or to carry heavy loads or to work with the knees bent or in a squatting position. He acknowledged that she would have difficulties in competing in the open workforce in terms of physical activity type occupations.
In his report of 8 February 1999 he comments on a repeat bone scan and MRI scan as follows:
"… her MRI scan suggests a crush fracture of the anterial lateral dome of the talus of matching tibial osteochondral injury and evidence of previous tibio fibula ligament strain with underlying synovitis. Her bone scan showed evidence of previous trauma to the right ankle and whilst the appearances were consistent with reflex sympathetic dystrophy, the appearances were less evident than on the previous bone scan 12 months earlier. There were some features to suggest degenerative anthropathy in the right knee complex, again consistent with her injury.
Prof Andrew Harper reviewed the plaintiff on 30 October 1997, this time in the context of the injuries received in the second accident. Upon physical examination he reported:
"She walked with a relatively short stepping gait with a limp favouring the right foot and with the right foot externally deviated. When standing in bare feet in the neutral position she was unable to place the right heel squarely on the floor due to stiffness of the right ankle. Dorsi flexion of the right ankle was to approximately 85 degs. Plantar flexion was normal and medial and lateral deviation of the ankle were within normal limits. There was no swelling of the right ankle or physical deformity. She was tender around the joint margin and over the lateral and medial malleoli. There was tenderness over the lower third of the right shin. Examination of the right knee demonstrated an operative incision but no gross swelling and no deformity. Range of movement was only slightly reduced in full flexion and extension was within normal limits. There was crepitus in the right knee and pain on movement. Pain and tenderness of the knee interfered with full assessment of stability of the knee. Range of hip movements on the left and right were normal. Examination of the lower back revealed tenderness in the mid line over the spinous processes of L4 and 5 and also to the right. Range of movement of the lower back was reduced in forward flexion with her hands reaching the knees. She had difficulty standing on one foot and was unable to squat."
He considered that she was partially fit for a sedentary occupation such as receptionist or computer operator. He further considered that the injury significantly compromised her employability and would limit the range of occupations open to her. Her reduced mobility diminished her flexibility as an employee which could potentially compromise her capacity to maintain employment. Her restrictions are to avoid all work requiring standing, walking, good stability and balance while standing and general agility and she would need to avoid continuous sitting for a prolonged period.
Prof Harper reviewed the plaintiff again on 8 February 1999 and reported on his investigations as follows:
"A bone scan (1.12.97) reports degenerative anthropathy involving the lumbo sacral joint both hip complexes and both knee complexes. There were features suggestive of reflex sympathetic dystrophy affecting the right leg. Major abnormalities were reported in the right ankle complex consistent with traumatic and post‑traumatic arthropathy. A localised bone scan (15.12.98) reported changes in the right ankle reflecting previous trauma, orthopaedic surgery and subsequent degenerative change. An MRI of the right ankle (18.1.99) reported antero‑lateral talar dome and tibial matching osteochondral injuries and evidence of previous ATF ligament strain with underlying synovitis."
The plaintiff was referred to Mr Robert McWilliam, orthopaedic surgeon, for a second opinion regarding her right leg. In his report dated 25 May 1998 he noted that the plaintiff had a marked genu valvum (abnormal in curving of the legs resulting in excessive separation of the feet when the knees are in contact) with seven fingers separation at the ankle joints. There was some impairment of sensation just lateral to a 9 cm incision below the right patellar. His report states:
"She has a reasonable range of neck movements. She has three quarters of the normal range of back movements, hip movements are normal, knee movements show normal extension but she lacks last 20 degs of knee flexion on the right side. There is crepitus present in both knee joints. In the right ankle she is not able to stand fully planti‑grade and has loss of 5 degs of dorsi flexion and can extend to only 50 degs plantar flexion. On the left side she has 5 degs of active dorsi flexion of the left ankle and 60 degs of plantar flexion. Straight leg raising is unrestricted to 70 degs plus on both sides.
. . .
I would attribute a lot of her problems to the fact that she is unable to place her right foot plantigrade on the ground. I believe that she would be a lot more comfortable if she could wear a heel insert in both heels to allow for this 5 degs of lack of plantar flexion. The other alternative would be to wear shoes with a sufficient heel to allow for this. I note that she is much more comfortable in shoes with a heel on.
She does have evidence of early degenerative change in both the right ankle and in the right knee. With respect to the hip this would appear to be related to tendinitis related to her walking and weight bearing after the accident, and I would think it would have a favourable prognosis. With respect to her back again this appears to be aggravated during the gait training post‑operatively and again this would have a favourable prognosis.
In summary she has evidence of articular damage in the right knee and in the right ankle and her most distressing symptom would appear to be the right ankle where she is not able to place plantigrade. She may well find that with a heel raise in both shoes a lot of her balance problems are much better. Should also get less pain in both the right ankle and right knee.
. . .
I doubt if there is any active further surgical treatment that could be offered to her. …"
Mr Stewart Brash had reviewed the plaintiff after her first accident. He saw her again on 1 July 1999 for the purpose of preparing a medico‑legal report and review. He noted reference in the Fremantle Hospital letter dated 24 July 1996 to pre‑existing degenerative changes in the right knee. That is they pre‑existed the second accident.
He noted that the plaintiff complained of constant pain in the neck. After examination he concluded as he had done on the prior occasion that he could see no objective evidence of pathology which would account for her severe and constant ongoing symptomatology in the neck and arm. As to the knee and ankle he reported:
"Examining both knees showed there was a full range of motion in both knees and there was a similar amount of patella‑femural crepitus in both knees. In other words I could not really detect that much increased arthritus in the right knee as compared to the left. Examining the right ankle however showed dorsi flexion only to be 5 degs and plantar flexion was also somewhat limited but not greatly so. There was a good range of movement in the subtalar joints however.
X‑rays of the right knee showed degenerative changes in the right knee but the joint space is well preserved. On another x‑ray there is not much difference between the right and the left knees. The x‑rays also show the heeled fracture of the right tibial shaft.
. . .
The minimally depressed lateral tibial condylar fracture which was superimposed upon pre‑existing degenerative changes in the right knee is well heeled and it is possibly causing some increase in arthritis and may give a small chance of degenerative changes in later life.
There is certainly pathology in the right ankle, namely osteo‑chondral fractures. This may be helped with arthroscopic surgery to the right ankle…
The question has arisen about reflex sympathetic dystrophy. There may be some slight reflex sympathetic dystrophy but the natural history of reflex sympathetic dystrophy is that this is a temporary disease and condition and will settle."
Mr Brash placed her permanent residual disability in the right leg as a result of the accident in March 1996 at between 10 per cent‑15 per cent loss of function of the whole of the right leg. He was of opinion that the plaintiff was fit to return to a job as claims officer or direct bill processor or real estate agent on a full‑time basis.
Mr Ross Goodhart, consultant neurologist saw the plaintiff on 24 September 1998. She was referred by her general practitioner for further evaluation of her neurological symptoms. After review of medical reports and examination of the plaintiff Mr Goodhart states:
"It is my opinion that Mrs Villasevil suffers with a significant soft tissue neck injury. Her history suggests significant exacerbation of those symptoms following the accident of 17 March 1996. She had been troubled by these symptoms since a motor vehicle accident on 25 September 1993.
With respect to the lower limb symptoms there is a question as to whether Mrs Villasevil is suffering with a reflex sympathetic dystrophy. This condition can be hard to diagnose. I certainly cannot exclude this possibility with respect to the right leg symptoms. Reflex sympathetic dystrophy can be associated with chronic pain symptoms in an injured limb."
The plaintiff was also referred to Mr Paul W Skerritt, psychiatrist, with whom she consulted on five occasions between July and December 1998. Mr Skerritt was of opinion that the plaintiff:
"…was precipitated into a psychiatric disorder by the accident and its consequences. She has quite significant depressive and anxiety symptoms. While these areas of symptomatology coincide in most people, conventionally frightening experiences, such as the accident, are associated with the provocation of the anxiety part and chronic pain, which she also has, with the depressive part. These have caused quite considerable distress in their own right and I am sure that they have added to the experience of the pain itself."
He prescribed anti‑depressant medication for the plaintiff. Mr Skerritt saw her again on 6 February 1999 and noted that the plaintiff was beginning to experience a significant relief from her depressive and anxiety symptoms. He considered that she would however require continuing anti‑depressant treatment and psychiatric visits.
General damages
An award of damages in this case should recognise the pain, discomfort and anxiety associated with the injuries, repeated hospital admissions, surgery, immobilisation, convalescence and other matters generally referred to as the loss of amenities.
The award of damages for loss of enjoyment of life and amenities generally requires a consideration of s3C of the Motor Vehicle (Third Party Insurance) Act 1943 (as amended) ("the Act"). This section imposes limitations upon an award of damages for non‑pecuniary loss and it applies to the present case. Section 3C(3) provides that the maximum amount of damages that may be awarded for non‑pecuniary loss is at the present time $219,000 and that amount may be awarded "only in a most extreme" case.
In Wylde v Aristondo 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997 the Court adopted the same approach to the Act as the New South Wales Court of Appeal did to the Motor Accidents Act 1988 (NSW). In Southgate v Waterford (1990) 21 NSWLR 427 at 440 the Court said:
"There are a number of ways by which trial judges could approach the task of apportionment required by s79(2) and s79(3). It is inappropriate in this case for this Court to mandate any particular way of arriving at the 'proportion' required by s79(2). But clearly because the task in hand is that of awarding damages for 'non economic loss' it is appropriate for the trial judge to consider and make findings on those elements in the evidence which are relevant to such loss. This will require the judge to consider and make findings on the evidence relevant to those heads of damage formerly considered in the award of general damages. Then it is necessary for the judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by s79(3) be awarded. Opinions of what constitute 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000; but in a ratio which the judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for a 'most extreme case'."
The injuries sustained by the plaintiff in the first accident were to the cervical spine, upper thoracic spine and to the right shoulder. The symptoms in the right shoulder came on several months after the accident. Mr Brash was not able to relate her condition in the right shoulder to the first accident. Mr Brash considered that the continuation of pain in the neck is on the basis of naturally occurring degenerative changes which pre‑date the first accident. According to the plaintiff these injuries had largely resolved prior to the second accident.
Injuries sustained in the second accident were fractures of the right fibula, right tibia and right lateral tibial plateau, ie right leg and ankle region. She did not complain immediately of aggravation of first accident injuries. However I find there was aggravation as a result of having to use a Zimmer walking frame for 4‑5 months after the accident and subsequently using crutches after the steel pin was removed. However by the time her first accident damages claim was settled on 10 September 1997 the consequences of the aggravation had resolved and those injuries were back to her pre‑second accident status.
Cosmetically the plaintiff has quite noticeable scarring on the right leg. There is a vertical scar approximately 10 cms long by 1 cm in thickness which runs from the centre of her knee cap vertically down on the front of her shin (tibia). She also has minor scarring on the inside of the knee and on the inside of the right ankle. The scarring is quite unsightly.
Upon inspection it was also observed that when standing normally her right foot was externally rotated (splayed) outwards by about 5 degrees. When she stood with her feet parallel the right knee was turned inwards to a like extent.
In her evidence the plaintiff described her present complaints as including "pains and difficulties with my walking and my arms and my neck and my hips and my knee and my ankle, my foot…most of the time I'm in great pain". She described back pain if she stood for a long time or in a queue, after 10 minutes she would be looking around for a chair. In a motor vehicle she is very nervous and as well her back hurts while she is sitting in a car. She also complained of neck pain which she said was something "that doesn't really go away." As to her right knee she described it as numb in that she has no feeling on the right hand side of the right knee. She gets shooting pains the minute she starts walking a little fast which go down from her right knee to her ankle. The leg feels cold and she described her knee and ankle as always swollen. She is not able to walk for long periods and has difficulty climbing or descending stairs, is not able to climb a ladder and is not able to bend her knee to bend down and pick things up at a low level. Mentally she was very depressed following the second accident and her sleep pattern has been impacted by having nightmares about the accident. She finds that the medication efexor has helped her in these areas.
Immediately after the impact of the motor vehicle she was in pain. She described her hands were bruised, her right arm was scratched and bruised as was her left upper arm. The car ran over both legs but only her right one was broken. When the ambulance attended she was not able to lift up her head because it was sore.
Aggravation in the second accident of the first accident injuries had settled by the time that her first accident damages claim was settled. Thus in assessing damages for the second accident I disregard her current complaints as to back pain. This is clearly a consequence of the first accident and/or an aggravation of her pre‑existing degenerative changes in the shoulder and cervical spine.
As to the right knee it is relevant that a 1991 x‑ray indicated pre‑existing degenerative changes. However this was asymptomatic up to the time of the second accident. Likewise I find that the accident has set off pre‑existing but asymptomatic degenerative changes in the right ankle.
The injuries consequent upon the second accident have deprived the plaintiff of the ability to participate in social activities she enjoyed prior to the accident. It is to be remembered however that as a consequence of the first accident she had scaled back her physical activities, eg dancing, squash, sewing, etc.
The legislation requires me to assess general damages by relating the plaintiff's case to a most extreme case. To do this I need to consider each of the plaintiff's physical injuries and psychological injuries as well as the interaction between and combination of the two. I cannot base my consideration of her physical injuries on the level of her complaints about them or her perception of them.
The estimates of the degree of residual disability of the plaintiff's right knee and ankle are as follows:
•Mr Bath - 20 per cent loss of normal function of the right leg as a whole.
•Mr Thrum - 10 per cent loss of function of the knee, 15 per cent permanent residual disability of the function of the ankle.
•Mr Brash - 10‑15 per cent loss of function of the whole of the right leg.
•Mr Gooheart - 30 per cent disability in respect of right leg function.
This assessment will give some indication of the severity of the injury.
When the plaintiff's injuries and associated symptoms are compared with what may be regarded as a most extreme case it seems clear that the plaintiff's initial injuries and symptoms, their progression and treatment, the prognosis for their improvement and the effect that they have had on her enjoyment of life places her case at no more than 15 per cent of the most extreme case. This percentage of the maximum amount that may be awarded of $219,000 equates to $32,850. The provisions of s3C(5) of the Act requires an assessment in this amount to be reduced by $10,500.
I award the plaintiff general damages in the sum of $22,350.
Economic loss
The plaintiff seeks damages for loss of earning capacity and as Deane, Dawson, Toohey and Gaudron JJ pointed out in Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 3 that imposes upon her an obligation to satisfy the Court of two things:
"The first of those requirements is the predictable one that the plaintiff's earning capacity has in fact been diminished by reason of the negligence caused injury. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that the 'diminution of…earning capacity is or may be productive of financial loss'. (Graham v Baker (1961) 106 CLR 34 at 437."
In Paul v Rendell (1981) 34 ALR 569 at 471 Lord Diplock said as follows:
"…and the assessment of future economic loss involves a double exercise in the part of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured."
The following statement by White J at p10 of his judgment in Jarvis-Vagg v Eldrid, unreported; FCt SCt of WA; Library No 970405; 15 August 1997 is apposite in a case such as this:
"His Honour had to make an assessment as best he could as to the likely future which would have been enjoyed by the appellant had he not been injured and to compare that with the likely future which he would in fact have following his injuries. There could be no uncertainty as to either of the assessments."
In Jarvis‑Vagg v Eldrid (supra) Kennedy J set out the following at pp3‑4 of his judgment:
"In assessing the damages for future or potential events it is necessary to bear in mind the observations of Deane, Gaudron and McHugh JJ in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 642‑643:
'When liability has been established and a common law court has to assess damages its approach to events that allegedly would have occurred but cannot now occur or that allegedly might occur is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred it is treated as not having occurred. Hence in respect of events which have or have not occurred damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred or might or might not yet occur the approach of the Court is different. The future may be predicted and the hypothetical my be conjectured. But questions as to the future or hypothetical effect of physical injury to degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages it can only do so in terms of the degree of probability of those events occurring. The probability may be very high ‑ 99.9 per cent ‑ or very low ‑ 0.1 per cent. But unless the chance is so low as to be regarded as speculative ‑ say less than 1 per cent ‑ or so high as to be practically certain ‑ say over 99 per cent ‑ the Court will take that chance into account in assessing the damages. Where proof is necessarily unattainable it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus the Court assesses the degree of probability that an event would have occurred or might occur and adjusts its award to damages to reflect the degree of probability."
The plaintiff gave evidence that she intended to work to age 70. I do not think that is likely. The job market in the areas in which she might have sought employment is competitive. For example after her first accident the plaintiff applied for a number of jobs for which she may have been well suited having regard to her experience but was unsuccessful. The work which she obtained with Asia Securities Pty Ltd (5 months) and Satterley & Co (4 months and 1 week) was as a housekeeper. In both those jobs she was employed only on a part‑time basis. She terminated with Satterley & Co for the reason that she was not physically able to continue to do the work required of her.
Furthermore having regard to the plaintiff's general health before the second accident (and as a consequence of the first accident) and her past work history it was I think such that it is quite probable that there would have been long periods when she was not employed and that she would have retired much earlier than she expected in any event.
I now turn to consider whether there should be any discount for contingencies.
In Black v MVIT [1986] WAR 32 at 34 Wallace J (Burt CJ and Brinsden J concurring) set out:
"It is erroneous always to make a deduction for contingencies as Windeyer J had to say in Bresatz v Przibilla (1962) 108 CLR 541. The Court should in each case have regard to the facts of that case, that very learned Judge continued at 543‑544 ‑
'It is a mistake to suppose that it necessarily involves a "scaling down". What it involves depends not on arithmetic but on considering what the future may have held for the particular individual concerned. He might have fallen sick from time to time, been away from work and unpaid. He might have become unemployed and unable to get work. He might have been injured in circumstances in which he would receive no compensation from any source. He might have met an untimely death. Allowance must be made for these "contingencies" or the "vicissitudes of life" as they are glibly called. But this ought not to be done by ignoring the individual case and making some arbitrary subtraction. … Moreover the generalisation that there must be a "scaling down" for contingencies seems mistaken. All "contingencies" are not adverse: all "vicissitudes" are not harmful. A particular plaintiff might have had prospects of changes of advancement and increasingly remunerative employment. Why count the possible buffets and ignore the rewards of fortune! Each case depends upon its own facts. In some it may seem that the chance of good fortune might have balanced or even outweighed the risk of bad."
Having regard to these considerations and the need to take account of the ordinary vicissitudes of life I would apply a discount of 75 per cent to the figure assessed in relation to the economic loss aspects of the plaintiff's claim.
Past loss of earning capacity
The plaintiff's work history prior to the second accident is punctuated by almost equal periods of unemployment between jobs. In fact when analysed over the period 9 November 1987 (on which date the plaintiff commenced her own coffee lounge business) through to 17 March 1996 being the date of the second accident the plaintiff worked at seven different jobs for a total period of 48 months and 3 weeks. Between jobs were interspersed periods of unemployment which total 50 months. The balance is approximately the same before the first accident. Thus it can be readily seen that when the plaintiff was in good health, fit and active she was employed for only approximately half of the time available for employment. During that time she and her husband divorced in about 1991. The plaintiff had the care of their children who over that period of time were living at home (as they still do) and then going through their teenage years. Whilst the plaintiff described herself as a workaholic that is not borne out by her past paid employment history.
Prior to the second accident the plaintiff had completed seven weeks of an eight week computer course through the Spearwood Skill Share Group. Her purpose in undertaking the course was that she intended to continue working and she was aware that she required to update her computer skills from her previous experience with the HIC. She regarded this as necessary so as to be able to compete with others in the job market. The course involved learning the Windows 6 program which was the latest Windows upgrade at that time. The second accident prevented her from completing the course and so she was not assessed and did not qualify.
The plaintiff has not worked since the second accident. She has not applied for any jobs since that accident because she does not feel that she could do any job. Once she completed the Skill Share course she was hoping to apply again to the HIC and if she was not going into computer work she felt she had the skills to do counter work as an interpreter. She is not qualified as an interpreter, however has had some experience in interpreting from English into Spanish and the converse. When asked why she was not able to do any work she responded:
"Well…I don't feel that I'm able to work at the moment because I have still got pains and difficulties with my walking and my arms and my neck and my hips and my knee and my ankle, my foot, and I just don't feel I can do it because most of the time I'm in great pain and I can't even concentrate."
It is not an easy task to ascertain the retained earning capacity in a case such as this. Mr Thrum was of opinion that whilst the plaintiff has a permanent partial incapacity she nevertheless has a capacity for sedentary work. Likewise Prof Harper concluded that she was partially fit for a sedentary occupation, eg as a receptionist or computer operator. It was Mr Brash's opinion that the plaintiff was fit to return to work as a claims officer, direct bill processor or real estate agent on a full‑time basis. In effect her retained earning capacity is not very much different from her situation which existed as a result of the first accident. I have referred earlier in these reasons to the assessments made prior to settlement of her claim for damages in respect of the first accident.
This is not a case where the plaintiff was in steady full time employment prior to the accident. In the circumstances it is relevant to have regard to her past employment record as an indicator for the future. I have indicated earlier in these reasons (pre‑accident history) the plaintiff's prior work record. Income tax returns were tendered which indicate her taxable income for the following years as follows:
| Year ending | Taxable income | Tax on taxable income |
| 30.6.1988 | $12,858 | $1,874.82 |
| 30.6.1989 Coffee Lounge, | $11,996 $9,253 | - - |
| Supporting Parent | $2,743 | - |
| 30.6.1990 | $4,792 | - |
| Ratto Parker, | $1,818 | - |
| Social Security | $6,483 | - |
| 30.6.1991 | $8,373 | $141.07 |
| Down Town Duty Free, | $1,525 | - |
| Sole Parents Pension | $6,898 | - |
| 30.6.1992 | $7,851 | - |
| Burswood Resort Management, | $538 | - |
| Pension | $7,313 | - |
| 30.6.1993 | $9,665 | - |
| Social Security | $7,727 | - |
| 30.6.1994 | ||
| Fremantle Estate Agency, | $1,106 | - |
| Pension | $8,528 | - |
| 30.6.1995 | $13,006 | $1,332.94 |
| Asia Securities Limited, | $8,307 | |
| Social Security | $4,083 | |
| 30.6.1996 | $14,872 | $1,295/42 |
| Satterley & Co, | $7,847 | |
| Social Security | $6,742 | |
| 30.6.1997 | $8,835 | $203.90 |
| Social Security | $8,313 |
Thus it can be seen that when the plaintiff did work it was part‑time for relatively minor remuneration ‑ an average of $3,799.25 per annum between the 1989 and the 1996 tax years. Much of the income over that period came from the Department of Social Security.
The plaintiff had commenced a Skills Training Course but did not complete it because of the accident. It was her evidence that she undertook the course so as to improve her skills and be competitive in the job market. She was hopeful that she may be re‑employed by HIC where she had previously been employed. The evidence of Kristine Sandnes who worked with the plaintiff at HIC and is still employed there in the Human Resources section was that the position of Direct Bill Processor (which the plaintiff had previously worked as) no longer exists. Such employees are now designated as Customer Service Officers who deal with a wider range of duties than that which was previously undertaken by the plaintiff. Recruitment is by way of application. Appointment to a permanent position would require undergoing a satisfactory medical. Temporary staff employed on 3 month contracts would not require medicals.
In all the circumstances, and doing the best that I can insofar as considering what the future may have held for the plaintiff but for her injuries sustained in the second accident, I conclude that as much as the plaintiff may have done would be occasional part‑time work and that confirms the substantial discount to which I have already referred.
For the purpose of calculating the plaintiff's past economic loss I adopt the minimum adult wage which is $346.70 gross per week. The income tax payable by a single adult person living in the metropolitan area of Perth on that amount is $55.80 which gives a net weekly rate of $290.90. The plaintiff claims past economic loss from 1 July 1996 being the date by which the plaintiff might reasonably have obtained employment following completion of the computer course. That is a period of 3 years 8 months (188 weeks) x $290.90 = $54,708. Reduced by 75 per cent leaves a net allowance of $13,677.
The plaintiff also claims loss of superannuation benefits for that period together with interest. In the circumstances taking into account those matters a total appropriate allowance inclusive of those additional items for past economic loss is $17,500.
Loss of future earning capacity
Assuming that the plaintiff were to work to age 65 she would have a further 15 years ahead of her. I calculate this loss also on the basis of adopting the current minimum adult wage. The multiplier for 15 years on the 6 per cent table of multipliers on the weekly income table is 520.80.
$290.90 x 520.80 = $151,791.62
Less 75% ‑$113,843.71
Net loss $37,947.91
I allow for loss of future earning capacity the sum of $37,948.
Future medical expenses
The plaintiff will require to consult her general practitioner and to use medications from time to time. Further the evidence of Mr Skerritt was that he was very encouraged by his June and July 1999 reviews and that there was a need for only three or four more consultations and medications for "a year or two". There is also the possibility of the need in the future for an ankle arthroscopy. I do not accept that the medical evidence indicates a probability that the plaintiff may require in the future a fusion of her ankle. The present day cost of an ankle arthroscopy and associated costs is in the order of $4000. Without defining a breakdown of costs I conclude that a reasonable allowance for future medical treatment, medication, medical reviews and travelling expenses is $10,000.
Gratuitous services
The legal principles in respect of gratuitous services were summarised by Franklyn J in Newman v Nugent (1992) 12 WAR 119 at 122 when he said:
“As I understand the law, any compensation payable to the respondent in respect of gratuitous services must be compensation for her ‘incapacity to look after herself as demonstrated by the need for’ (emphasis added) the services provided for her: see Griffiths v Kerkemeyer (1977) 139 CLR 161 at 192, Mason J. The incapacity to look after herself must arise out of the injuries sustained as a result of the appellant’s wrong doing. The compensable loss is the existence of the need for those services: Donnelly v Joyce [1974] QB 454, Megaw LJ (at 462) adopted by Stephen J in Griffiths v Kerkemeyer (at 173) when he said:
‘“The critical point is his Lordship’s affirmation that when a plaintiff, as a result of his accident-caused injuries, becomes in need of goods or services, that need is itself a loss suffered by him, for which he may recover damages against the defendant.” It is then, his Lordship said, irrelevant to his entitlement to those damages that the need has been satisfied by the gratuitous supply to him of the needed goods or services.’
That that is proper principle has now been put beyond doubt by the recent High Court decision Van Gervan v Fenton (1992) 175 CLR 327. In that case the court upheld and favoured the approach by Stephen and Mason JJ in Griffiths v Kerkemeyer and the adoption of the principles stated in Donnelly v Joyce over that taken by Gibbs CJ in Griffiths v Kerkemeyer.”
His Honour Franklyn J emphasised the point that the need must be the plaintiff’s need. At p129 his Honour Ipp J after referring to Griffiths v Kerkemeyer (1977) 139 CLR 161 and Van Gervan v Fenton (1992) 109 ALR 253 said:
“It is apparent from these remarks that the loss is constituted by the diminution of the claimant’s capacity to look after herself, usually by being unable to provide nursing or household services for her own needs. In the words of Gaudron J in Van Gervan v Fenton: ‘The real loss for which damages are awarded is the loss which gives rise for the need for care or services.’ ”
These principles have been recently affirmed in Kars v Kars 141 ALR 37.
An award for damages for gratuitous services where the cause of action arose on or after 1 July 1993 is subject to the provisions of s3D of the Motor Vehicle (Third Party Insurance) Amendment Act 1994 (“the Act”). Sections 3D(1) and 3D(2) provide as follows:
“3D(1) This section limits the damages that may be awarded for the value of gratuitous services of a domestic nature or gratuitous services relating to nursing and attendance that have been or are to be provided to the person in whose favour the award is made by a member of the same household or family of the person.
(2)No damages are to be awarded for the value of the services if the services would have been or would be provided to the person even if the person had not suffered the bodily injury.”
The accident in this case occurred on 17 March 1996 and therefore comes within the operation of s3D of the Act.
The provisions of s3D limit the effect of the decision of Van Gervan v Fenton, in so far as that case decided that a defendant was liable for the cost of services provided to a plaintiff if they were provided voluntarily prior to the accident, but after the accident were required to be provided by reason of injury (see the judgment of Mason CJ, Toohey and McHugh JJ at p291).
When assessing gratuitous services it is necessary to determine two questions. They are, first, what are the services required to satisfy the plaintiff’s need resulting from the defendant’s wrong and secondly, what is the value of those services?
Past gratuitous services
When she was discharged home from hospital on 26 March 1996 the plaintiff required help in and about the home. The plaintiff's daughter Lidia Villasevil who was then aged 20 years gave evidence that for 2‑3 months she assisted her mother with her showering and toileting and getting her comfortable before she went off to work. In the evening she would prepare dinners and do the necessary cleaning up afterwards. At weekends she would do house cleaning, washing, ironing, the usual household chores and generally caring for her mother. None of this she had done previously. She did acknowledge that some of that work she may have undertaken in any event. The plaintiff's son assisted with gardening around the house. For the first 2 months the plaintiff's elderly parents came to the house and stayed with the plaintiff until her daughter returned in the evening. The plaintiff's mother Maria Perez gave evidence that she and her husband provided assistance to the plaintiff and undertook domestic activity during each day. For a further 2 months thereafter they visited and stayed with the plaintiff at least 2 days per week and provided assistance to her.
On the evidence I am more than satisfied that gratuitous services which were rendered were needed in the early months after the accident. The plaintiff said that it was about 4 months before she could manage for herself, her showering, etc and undertake domestic chores other than heavy work.
The plaintiff claims past gratuitous services at the rate of $12 per hour (a rate agreed by the defendant) for 3 hours per day for 60 days totalling the sum of $2160. This is a modest allowance.
The plaintiff further claims past gratuitous services at the rate of $12 per hour for 3 hours per week from 1 June 1996 to trial. In the early months of that period the services needed by the plaintiff would as I have indicated above been greater than that claimed. Progressively however as the plaintiff's condition improved the need diminished. There was no medical evidence by way of substantiation of a need for ongoing gratuitous services. In her medico/legal letter of 17 December 1998 Dr Jennifer Milligan expressed the view that the plaintiff was unfit for heavy household duties and was unable to do any heavy gardening. She considered it reasonable to require assistance of up to 3 hours weekly. No evidence was adduced at trial that this need is continuing.
In the circumstance I consider that it would be a fair allowance to provide for past gratuitous services for a period of 3 years following the initial intensive 2 months already provided for. Therefore gratuitous services at the rate of $12 per hour for 3 hours per week for 3 years from 1 June 1996 totals the sum of $5616.
The total allowance for past gratuitous services is $2160 plus $5616 = $7776.
The plaintiff claims interest on her past gratuitous services. Interest on $7776 at the rate of 4 percent per annum for a period of 3 years = $933.12. The total allowance under this head of damages is $8709.12.
Future gratuitous services
As noted above no evidence was led as to what services if any are needed by the plaintiff on an ongoing basis. The plaintiff's evidence was that she still does receive assistance around the home from her daughter and her son. It may well be that they will leave home at some time but that is not to say that they would not continue as dutiful children to provide assistance to their mother as she gets older and less able to do things for herself. To the extent that they are assisting around the house at the present time it has not been proven that they are doing more than would adult children do in any home environment. The plaintiff is now able to undertake most of the usual household tasks albeit that she may have a little difficulty and that it perhaps takes longer to do things than previously. Those circumstances however do not in my view found a need for continuing gratuitous services to be provided.
Special damages
Special damages have been agreed between the parties in the sum of $22,068 and I allow this amount.
Conclusion
I allow damages as follows:
Loss of amenities $22,350.00
Past loss of earnings $17,500.00
Loss of future earning capacity $37,948.00
Future medical treatment $10,000.00
Past gratuitous services and interest $8,709.12
Special damages $22,068.00
Total $118,575.12
The plaintiff is entitled to judgment against the defendant in the sum of $118,575.12.
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