Wheare v Geroheev Pty Ltd - [2005] WADC 67

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WHEARE -v- GEROHEEV PTY LTD & ORS [2005] WADC 67

CORAM: GROVES DCJ

HEARD: 22, 23, 24 MARCH 2005

DELIVERED : 14 APRIL 2005

FILE NO/S: CIV 2407 of 2000

BETWEEN: RAMON JON WHEARE
Plaintiff
AND
GEROHEEV PTY LTD
MARINA ATHANASIOU
ROSE FERMANIS
ROSE COURTIS
Defendants

Catchwords:

Tort - Negligence - Occupier's liability - Personal injuries - Assessment of damages - Severe injury to knees - Numerous operative procedures - Depressive disorder - Permanent disability - Pre-existing and subsequent medical conditions - Driller/delivery driver - 38 years old

Legislation:

Nil

Result:

Damages assessed at $625,910.31 reduced by 20 per cent for contributory negligence to $500,728.24.

Representation:

Counsel:

Plaintiff: Mr D M Bruns
Defendants: Mr D R Clyne

Solicitors:

Plaintiff: Separovic & Associates
Defendants: Pynt & Partners

Case(s) referred to in judgment(s):

Geroheev Pty Ltd & Ors v Wheare [2004] WASCA 206
Jongen v CSR Ltd & Anor (1992) Aust Torts Reports 81‑192
Wheare v Geroheev Pty Ltd & Ors [2002] WADC 266

Case(s) also cited:

Graham v Baker (1961) 106 CLR 340
Husher v Husher & Anor (1999) 197 CLR 138
Jones v Dunkel & Anor (1959) 101 CLR 298

GROVES DCJ: The plaintiff was a truck driver who was employed to deliver bread to retail premises. The defendants are the owners of a small shopping centre at Scarborough. The premises include a Foodland Shop and a car parking area at the rear.
On the morning of 9 April 1999 just as it was becoming light, the respondent drove his truck to the appellant's premises, and parked in the parking area. The plaintiff took a tray of loaves from his truck to the shop. He then returned to collect some muffins which he had left in the truck. When he walked back from the truck to the shop carrying the muffins he stepped into a drainage grate in the car park. As he did so his left foot went through the grating and as he put it in evidence "just kept going down through the drain". As a result, the plaintiff suffered injuries.
The plaintiff brought an action in the District Court against the defendants. The action went to trial on 12 and 14 August 2002 before Commissioner Reynolds on the issue of liability. The learned Commissioner held that the defendants were negligent and in breach of their statutory duty arising under the Occupiers' Liability Act 1985. However, the Commissioner found also that the plaintiff was 20 per cent contributorily negligent. Wheare v Geroheev Pty Ltd & Ors[2002] WADC 266.
The defendants appeal against the finding that they were negligent and in breach of their statutory duty of care and the assessment of contributory negligence was dismissed. Geroheev Pty Ltd & Ors v Wheare [2004] WASCA 206.
The matter now proceeds as an assessment of damages.

The plaintiff

The plaintiff was born on 19 January 1961. At the date when he suffered injury he was 38 years of age. He had left school at about year 10 and had worked in a variety of occupations including as a storeman, working in abattoirs, and as a builder's labourer. His work had generally been of a heavy physical nature. In January 1994 he commenced work in the mining industry initially as a driller's offsider and then as an underground driller. The work was in remote areas on a fly‑in, fly‑out basis which involved him being away from the metropolitan area for lengthy periods of time.
Some time in 1996 his partner Lynette Roberts had what was described as a cancer scare. Then in about September/October 1997 his partner's mother was diagnosed with cancer. At that time the plaintiff was employed by Brandrill Ltd in underground mining as a nipper and grader driver. When he learned of his partner's mother's diagnosis he decided that he would temporarily give up the mining work to live in Perth full‑time to be near to and supportive of his partner. It was he said his intention to go back to underground mining some time after his partner's mother had passed away.
Through Drake Personnel Ltd the plaintiff obtained employment in Perth initially with a business called Pinetec and subsequently with Buttercup Bakeries. His partner's mother passed away on 27 May 1998. He continued with Buttercup Bakeries and from 3 August 1998 his employment with them was made permanent and he went on to their payroll. He was employed as a delivery driver. He had worked in this capacity for more than a year when he sustained injury on 9 April 1999.
Following the death of his partner's mother he said that he had "put feelers out" for work in underground mining and would have gone back to that work some time in the year 2000, ie some 18 months after her death. He said that he enjoyed the work in remote areas and whilst he made the most out of working at Buttercup Bakeries he said it was not what he enjoyed doing.
On 9 April 1999 the plaintiff's left foot and leg went through a grating practically up to his groin area. His right leg was crumpled up underneath him. With some difficulty and unaided he managed to scramble out of that predicament. His left thigh was badly grazed and he suffered grazes and bruising to his hands and elbows and as well his wrists and shoulders hurt. He also received a knock on the head. He continued his work for the remainder of the day and that evening when he went home he "iced up" his injuries. The next day he attended at his general practitioner's medical practice where he was seen by a doctor other than his usual GP. He was prescribed anti‑inflammatory medication. After some few days absent from work he attempted a return on restricted work duties. He found however that he was not able to manage the job because he found increasingly that the regular alighting and re‑entering the vehicle exacerbated pain and swelling in his knees. He was referred by his GP to Mr Tony Robinson, orthopaedic and knee surgeon, whom he saw on 6 May 1999.
Mr Robinson diagnosed retropatellar chondrial damage to both knees. He noted a torn posterior cruciate ligament on the right and that there may have been some medial meniscule damage in both knees. The plaintiff underwent a bilateral knee arthroscopy one week later. Following that Mr Robinson reported that the plaintiff had made good progress following the left knee meniscectomy and chondroplasty. He noted that there was still generalised pain in the right knee. He noted at arthroscopy of the right knee a partial tear of the anterior cruciate ligament. A subsequent MRI of the right knee showed some residual tearing of the medial meniscus with the fragment posterior to the posterior cruciate ligament. Mr Robinson noted that:
"Clinically there is posterior cruciate insufficiency but this is not seen on the MRI."
In June 1999 a right knee arthroscopy was undertaken. Mr Robinson reported:
"There was part of a flap in the posterior region of the knee which was causing his intermittent pain. I also arthroscoped the posterior aspect of the knee and confirmed the tear of the posterior cruciate ligament. The latter is seen clinically but not on MRI."
He recommended that the plaintiff continue with physiotherapy with a view to a return to part‑time modified duties.
The plaintiff has in all undergone some 20 or so operations mainly to his right knee but four or five of the operations being to the left knee. Mr Robinson carried out 18 operations and attended in March 2000 when Mr Tim Keenan operated. The plaintiff attended physiotherapy and hydrotherapy and engaged in vocational rehabilitation. In about September 1999 he returned to Buttercup Bakeries on a work trial. This required him to sit at a production line watching items pass by on a moving belt. As a consequence he developed headaches and was not able to persist. On another occasion he pulled a hamstring muscle whilst engaged at work and had to go off for further rehabilitation.
Towards the end of 1999 he experienced distress and anxiety by reason that he was unable to reliably undertake his work duties and he was having difficulty coping with the workers' compensation system. This led to unhappiness in his relationship with his partner. A diagnosis of depression was made and he was put on antidepressant medication and made contact with a psychiatrist. He was admitted to Joondalup College for five days under the care of Dr Paul Skerritt. On subsequent occasions he has been admitted to Sir Charles Gairdner Hospital for five days and Royal Perth Hospital for five days for treatment as a consequence of his depressed psychological condition. He has been under the care of psychiatrist Dr Darryl Bassett since December 2000. He has also seen clinical psychologist Dr Barry White four or five times. Prior to suffering his injuries he had no prior psychological problems.
In about September 2000 through Work Dynamics, Occupational Rehabilitation Services, (Reports – exhibit 14) he undertook at placement at Mirrabooka Shopping Centre for a work experience/assessment programme. He was engaged undertaking mostly gardening/groundsman activity initially for four hours a day. This however only lasted about a fortnight because of increased swelling and discomfort which the plaintiff experienced to his right knee. The swelling developed over time and was not related to any specific activity undertaken during the programme. In November 2000 the placement was called off due to the continuing physical limitations related to the plaintiff's knee problems. He has not since engaged in any work placement or other rehabilitation programmes.
His present complaints include continuing and intrusive levels of bilateral knee pain with added knee swelling. He wears a knee support on his left knee and a knee brace on his right knee. He continues to have cortisone injections in both knees approximately every three months. His ability to undertake physical activity and activities such as kneeling, crouching or squatting or climbing stairs is substantially curtained. He has developed back pain and headaches which lead to irritability. He complains that his relationship with his partner of some 20 years has become distant. They do not now engage in a sexual relationship. Whereas they had previously engaged in a fulfilling social life that does not continue. He feels that he has lost friends because all he has to talk about now is the disability which he suffers. His relationship with his son Nathan who back in 1999 was 17 years of age is now distant. It had been a close relationship. The plaintiff would engage in playing basketball and having a kick of the football with him but cannot now engage in that sort of recreation. Nor does he now engage in the pastime of fishing or in general maintenance around the home. He is not able to do the gardens or mow the lawns and engaged a mowing service for that purpose. After his numerous operations he has been dependent upon his partner for gratuitous services. She drives and helps him with showering and changing of dressings.
The plaintiff was in receipt of workers' compensation payments but after the initial five week period he went on to two thirds of his earnings. For the first two years this was "topped up" with benefits from a disability insurance cover. Since 8 April 2003 he has been in receipt of a disability pension of approximately $480 per fortnight. It was, so he claimed, as a consequence of his financial circumstances that after going onto the disability pension he and his partner had to sell the home in which they were living as they got behind in payment of council rates and water rates, and could not make up those payments. They have since lived in rental accommodation.
In fact, on his partner's evidence the house was sold at the end of 2002 whilst the plaintiff was still in receipt of workers' compensation. This would have been after the top up insurance had run out.
The plaintiff has multiple scarrings in the area of both knees. By my observation on the right knee there are two five centimetre scars on the inside of the knee and a smattering of small scars in the same area and on the kneecap with a horizontal five centimetre scar under the kneecap. On the left knee there are what the plaintiff described as "drain holes" where tubes have been inserted to undertake arthroscopy and drain fluid from the knee. The scarring is unsightly.
The plaintiff has throughout maintained an exercise discipline to support his rehabilitation. Together with physiotherapy and hydrotherapy he has undertaken his own exercise programme and gym programmes. At one time he joined a health club. The programme is designed to build up the muscles around his knees. He has also seen a chiropractor and a masseur whose treatment has provided temporary relief. He currently engages three times daily for 20 minutes on a walking machine, walks for 40 minutes with his dogs and engages in leg strengthening exercises and leg curls with weights. He has also undertaken swimming however he found that was painful on his knees and he found the hydrotherapy more effective.
It was the plaintiff's evidence that despite his limitations he wanted to work and that it was his intention to work but as yet he has not been able to determine what sort of work he would be able to do. There was no evidence that he has sought employment to this stage. His parameters of employment are limited by reason of his physical disabilities, his lack of formal education beyond year 10 and his lack of experience in any work form other than heavy physical work which he has undertaken throughout his working life. He does not consider that he is suited to indoor office work because he lacks skills in that area.
It was the plaintiff's evidence that he planned to return to underground mining some time in the year 2000. It was his intention to continue in that occupation until age 60 and that he might have then gone onto driving "dumpies" or the role of supervisor until age 65.

Plaintiff's employment and income history

1993/94	Employer	Gross Income	Taxable Income (after deductions)
5.7.93‑17.12.93	Nodius Pty Ltd t/a McMahon Fencing	$ 8,981.00
5.1.94‑30.6.94	Glindemann & Kitching Enterprises – drilling contractors	$27,446.00	$36,335.00
1994/95
1.7.94‑31.1.95	Glindemann & Kitching Enterprises – drilling contractors	$30,285.00
9.2.95‑24.2.95	Colby Drilling Company	$ 1,737.00
12.4.95‑30.6.95	Gold Finch Managements Pty Ltd – drilling company	$ 8,695.00	$40,394.00
1995‑1996
1.7.95‑1.5.96	Nash Drilling	$37,003.00
10.5.96‑30.6.96	Boart Longyear Pty Ltd	$24,973.00	$40,391.00
1996‑1997
1.7.96‑22.1.97	Boart Longyear Pty Ltd – drilling company	$24,973.00
24.1.97‑30.6.97	Brandrill Ltd – drilling company	$17,377.00	$41,997.00
1997‑1998
1.7.97‑15.7.97	Brandrill Ltd	$ 2,955.00
Macro Drill Pty Ltd	$ 3,631.00
18.9.97‑22.10.97	Tawana Pty Ltd	$ 3,105.00
11.9.97‑24.6.98	Drake Personnel Limited	$26,975.00	$36,266.00
1998‑1999
25.6.98‑5.8.98	Drake Personnel Ltd	$ 4,030.00
3.8.98‑30.6.99	Quality Bakers Aust Ltd	$37,915.00	$41,118.00
1999‑2000
1.7.00‑30.6.01	Quality Bakers Aust Ltd	$39,896.00	$39,003.00
2000‑2001
1.7.00‑30.6.01	Quality Bakers Aust Ltd	$40,953.00	$40,674.00
2001‑2002
1.7.01‑30.6.02	Quality Bakers Aust Ltd	$29,410.00	$29,358.00
2002‑2003
1.7.02‑21.3.03	Quality Bakers Aust Ltd	$22,070.00	$22,070.00

Plaintiff's medical history

In cross‑examination the plaintiff disclosed that prior to the April 1999 incident he had sustained a hamstring injury, a compressed fracture of the lower C7 as a result of a motor vehicle accident in about 1977/78 or 79 and a right shoulder injury whilst playing football. All those injuries resolved.
Cross‑examination of the plaintiff's GP Dr Fred Faigenbaum revealed from undiscovered medical records (not his workers' compensation medical file) other complaints for which the plaintiff had sought medical attention from time to time. In 1995 when the plaintiff was underground mining he suffered a soft tissue injury to the anterior right chest wall. On 9 January 1997 he presented with a six months history of pain in the right wrist when he was prescribed the anti‑inflammatory Voltaren. He was told that this problem would later give him trouble. On 5 March 1997 he presented with muscular strain between the shoulder blades and the lower back. He presented regularly to Dr Faigenbaum until he noted on 21 August 1997 that the plaintiff was back at work on full‑time duties. On that date the doctor also noted that the plaintiff had nine years previously sustained a blow‑out fracture of the left orbit. He presented on that occasion with swelling beneath the eye and infection. On 2 December 1997 and 24 February 1998 he presented with right wrist pain and was prescribed Voltaren. On 30 March 1998 he presented after having fallen off the back of a truck and having an overnight in the Narrogin Hospital. No ongoing problem was indicated. On 28 October 1998 he suffered an injury to his left groin as a result of slipping on a ladder. On 28 February 1999 he presented with left knee discomfort. He had been walking his dog when his right foot stuck in sand when his body moved forwards but his foot didn't. He had slight tenderness of the knee but no abnormal laxity was diagnosed. A non‑steroidal anti‑inflammatory was prescribed. In re‑examination Dr Faigenbaum said that this latter injury had no relationship to the work related injury suffered on 9 April 1999.
Since then other medical conditions have been diagnosed. In November 2003 he was diagnosed with Hepatitis C. He receives no treatment for this condition which is monitored by liver function tests 12 monthly. There is no indication that this condition will become active. About three months ago the plaintiff was diagnosed with mature onset diabetes. This condition is under good control by diet alone. He has reduced his weight from 130 kilograms to about 102 kilograms. In December 2004 the plaintiff suffered two episodes of epileptal fits. He is on medication for this condition which is being monitored.

Evidence of Mr Tony Robinson

The plaintiff came under the care of Mr Robinson on 6 May 1999 and has seen Mr Robinson on a continuing basis for management of his knee pathology. Mr Robinson has written some 79 reports (exhibits 5 and 6) which detail his observations and the treatment regime over the years. It is worthwhile to sketch briefly by extracting from those reports some of the medical history.
"September 1999 – work trial – re‑torn his left knee medial meniscus.
13 October 1999 – MRI shows further tearing of mid medial meniscus.
14 October 1999 – left knee arthroscopy and further meniscectomy.
8 November 1999 – some chondral damage of the lateral tibial plateau and the platellar which was shaved – recommencing physiotherapy.
22 November 1999 – improving with physiotherapy and hydrotherapy and own exercise programme.
6 December 1999 – fit for modified duties.
24 December 1999 – emotional problems due to coping with workers' compensation system.
4 February 2000 – main problem is giving way of right knee.
March 2000 – underwent tightening of right posterior cruciate ligament and medial collateral ligament by Tim Keenan.
4 July 2000 – Some retropatellar chondritis present in both knees more so in left than the right. Looking for a job which is suitable for his physical capabilities.
14 November 2000 – pain increased with returning to work four hours per day.
9 July 2001 – his problem is giving way and generalised pain in right knee due to posterior cruciate insufficiency. Left knee pain is due to retropatellar chondral damage.
8 August 2001 – knee arthroscopies both left and right. Shaved the retropatellar chondral damage and performed a lateral release of both knees. Also performed a further medial meniscectomy on right knee. Condition deteriorated over last 12 months. Severity on right side severe and on left side moderate.
14 August 2001 – aspiration of knee following arthroscopy.
22 October 2001 – muscle wasting – reliant on splints for both knees. Intense gym programme recommended.
7 February 2002 – recommends right posterior cruciate ligament reconstruction.
1 March 2002 – underwent right posterior cruciate ligament reconstruction. Followed by pain and swelling.
13 March 2002 – infection in knee following operative procedure requiring right knee arthroscopy and washout. Discharge from hospital on 16 March (15 days in hospital).
26 March 2002 – further infection requiring further washout and insertion of drains. Hospitalised for 10 days.
24 April 2002 – experiencing generalised pain and swelling. May be due to post‑infective synovitis.
20 May 2002 – knee re‑aspirated. Making satisfactory progress. To commence physiotherapy.
1 August 2002 – removal of staple from right knee and repaired a lax medial collateral ligament and right knee arthroscopy and chondroplasty.
22 October 2002 – inner right knee pain and ongoing low back pain.
7 February 2003 – experienced pain in right knee whilst carrying out hydrotherapy. Diagnosed a grade 3 tear of the medial collateral ligament of right knee.
March 2003 – underwent reconstruction of the medial collateral ligament using the patellar tendon.
25 March 2003 – joint aspirated followed by debridement and partial closure of the wound.
24 November 2003 – problems identified included osteoarthritis of the lumbar spine and osteoarthritis in the right medial compartment.
December 2003 – left knee arthroscopy, chondroplasty and further medial meniscectomy.
30 January 2004 – right knee shows significant arthrofibrosis. Manipulation of right knee under general anaesthetic.
3 August 2004 – right knee remains the same. There is grade 2 laxity of medial collateral ligament and generalised inflammatory pain throughout the whole of the right knee.
17 September 2004 – ongoing pain in his low back which is due to his abnormal gait pattern. Secondary osteoarthritis of the right knee due to damage to posterior cruciate and the medial collateral ligaments. The diagnosis with regard to the low back area is osteoarthritis which has become symptomatic due to abnormal gait pattern. With regard to the left knee the problem is pain due to favouring the left leg which has resulted in previously asymptomatic osteoarthritis becoming symptomatic. Furthermore, there is also a torn medial meniscus which was excised in November of last year. Mr Wheare will have significant problems gaining any form of work because of his injuries and because of his basic level of education.
21 September 2004 – generalised pain throughout the whole of the right knee especially on the inner aspect. He is dependent on the use of a brace. Clinically there is wasting of the muscles."
Mr Robinson had not seen the plaintiff since 21 September 2004.

Evidence of Lynette Roberts

Ms Roberts has been the plaintiff's partner for almost 20 years. She spoke of a full and active life which she and the plaintiff enjoyed prior to this accident. They participated in social and recreational occasions together. Since the accident she has noted a real change in the plaintiff in that his personality has changed, he has become antisocial and is down on life. He became so depressed that he had to be admitted to hospital and was placed on anti‑depressants. Following each of his operations she has been required to provide home assistance to him in showering, changing dressings and driving him around. This would take two hours a day for two to three weeks after each operation. The plaintiff does not now do any gardening or lifting. Ms Roberts does most of the driving.

Evidence of Dr Darryl Bassett

Dr Bassett is a psychiatrist. The plaintiff came under his care from 15 December 2000 (Reports – exhibit 12). Mr Bassett made a diagnosis of major depressive disorder with associated generalised anxiety disorder and panic attacks. He noted that the plaintiff was particularly preoccupied with his loss of physical function and the interruption of his ability to work. He opined that the plaintiff's condition was significantly related to the accident in which he was injured in April 1999. He further said:
"I feel that Mr Wheare is in a vulnerable situation. He has a personality structure which leaves him vulnerable to cope poorly with disruption of his self‑esteem and self image, such as that which has followed the injuries he suffered with the accident in 1999. His response to treatment has been less than optimum (with respect to psychological disorder) and these are associated with a chronic pain disorder which is unlikely to be totally relieved. With these factors in mind I believe Mr Wheare's prognosis is only fair. By which I mean I believe he will suffer some recurrent psychological symptoms and disruption of function into the foreseeable future, although further substantial improvement could be achieved."
From February 2002 to 25 January 2005 the plaintiff consulted Dr Bassett on 19 occasions. Preventative treatment for relapse of major depression was a major factor as his emotional problems were contributing to his overall level of disability and handicap. The unresolved nature of the medico‑legal claim was a continuing negative factor in the plaintiff's major emotional problems. At his last attendance, 15 February 2005 Dr Bassett noted that the plaintiff was not showing any clinical signs of depressive illness, although very frustrated by the legal process he had re‑established a sense of humour and a sense of optimism for the future and he noted "…a significant improvement in his mental state and in his ability to cope with his chronic pain." Antidepressant medication was continuing.
Dr Bassett was not aware that the plaintiff had since being under his care, been diagnosed with Hepatitis C and Diabetes or that his partner had had a further cancer scare. He acknowledged that these symptoms may well have contributed to an exacerbation of the plaintiff's symptoms of anxiety and depression.

Evidence of John Kingston Ker

Mr Ker is a consultant physician in rehabilitation medicine. (Reports ‑ exhibit 13). He saw the plaintiff at the request of his solicitors on 18 December 2000, 20 November 2001 and 22 February 2005. In his report following the first consultation Mr Ker noted that the plaintiff reported that from time to time he had diffuse pains in his shoulders and more particularly the complaint of headache and some low back discomfort. He noted that the plaintiff had been undertaking vocational rehabilitation but with only limited success. He opined then that "The manner in which he presented to me at the present time was not commensurate with any form of work in the open work force." He said further "I do not see this man as returning in the future to his pre‑accident employment of motor vehicle driving and delivery work. I believe him to be unfit for his former types of work in mining, or in the construction industry." He expected that the plaintiff would be vulnerable to an increased likelihood of degenerative pathology in both of his knees in years to come. This prognosis has since been borne out as indicated in Mr Robinson's reports.
In his last report dated 16 March 2005 Mr Ker noted:
"In general terms, I would have thought that there has been little in the way of material change in your client's condition. His range of movements has, I believe, been reasonably preserved. He still has evidence of ligamentous laxity and all day to day activities involving standing, walking, kneeling, squatting are curtailed."
He described the severity of the injuries as moderate to severe. As to current and future work capacity he opined:
"In the past, I have regarded your client as being unfit for work. In the period of the last three years, he has not been able to find any form of gainful employment. In that sense, I believe my views with respect to this man's permanent unfitness for gainful work are confirmed."
That statement has to be qualified however as there was no evidence that the plaintiff has in fact sought employment in the past three years.
He noted also that at some time in the future the plaintiff may require a prosthetic knee joint replacement. His prognosis for the future was guarded:
"…I believe the prognosis in this case is extremely guarded. Although numbers of treatments have been undertaken to attempt to preserve your client's function, he continues to exhibit significant restriction of bilateral knee function with evidence of articular cartilage loss. This is a circumstance where, in my view, over time your client's symptoms of knee pain stiffness and instability may very well progress, particularly in the right knee."
At his last consultation Mr Ker was informed of the plaintiff's epileptiform seizures. As to that he expressed the view that whilst they persist it would prohibit the plaintiff from engaging in driving commercial vehicles or working in an underground mine.

Issues raised by defence

The defendants did not call any evidence on the assessment of damages. The plaintiff and witnesses called by him were cross‑examined. The amounts claimed under a number of the heads of damages were agreed. Insofar as the remaining head of damages are concerned the defendants in a written outline of submissions and in oral submissions have raised a number of issues for consideration. They are:
(i)The plaintiff's credibility generally.
(ii)The extent of prior unrelated injuries and their impact on his work capacity.
(iii)The probability that the plaintiff would not have returned to the mining industry.
(iv)The plaintiff's back complaint – a consequence of the accident?
(v)The plaintiff's headaches – are they accident related?
(vi)The plaintiff's psychiatric condition – the effect on his work capacity and need for future treatment.
(vii)The consequence of recent epileptiform seizures – a consequence of the treatment received by him as a result of the accident or unrelated?
(viii)Effect of recent diagnosis of diabetes and hepatitis C.
I will proceed to consider each of these issues before proceeding to my assessment of damages.

The plaintiff's credibility

The defendants raise a number of issues which they say call into question the plaintiff's credibility. First, he failed to disclose certain prior injuries which only became known when Dr Faigenbaum's notes were seen for the first time when he (Dr Faigenbaum) was in the witness box. The defendants had apparently subpoenaed the doctor's file but only the file dealing with the workers' compensation claim had been produced. He brought to court at trial another file from which he detailed in cross‑examination other incidents for which the plaintiff had sought medical attention. Those matters are detailed earlier in these reasons.
At the outset it should be said that no criticism can be made of the plaintiff for the fact that the whole of the doctor's file was not made available prior to trial. Nor does it appear from any of the medical reports tendered that any of the doctors recorded a history of any injury sustained by the plaintiff prior to this accident. Again, I cannot infer anything untoward against the plaintiff in that respect. He may well not have been asked to give a detailed medical history.
It is the case however that the plaintiff may have been less than forthcoming in cross‑examination when asked about any injuries which he may have suffered prior to the April 1999 incident. He did mention having sustained a hamstring injury, a compressed fracture of the lower C7 as a result of a motor vehicle accident and a right shoulder injury whilst playing football. He said that all those injuries had resolved. He did not mention those other injuries subsequently disclosed by Dr Faigenbaum. Some of those were significant and reasonably recent. For example, in 1997 the complaint of continuing pain in the right wrist for which he subsequently had a scaphoidectomy. In the same year he was disabled for some time with muscular strain between the shoulder blades and the lower back. In 1998 he had spent a night in hospital after having fallen from the back of a truck. Later the same year he suffered injury to his left groin as a result of slipping on a ladder. Then, in February 1999, only a couple of months before the accident the subject of this claim he presented with left knee discomfort. It might well be thought that he would have remembered any one or at least some of those injuries. Nor would it seem for example that the left knee discomfort was mentioned to Mr Robinson when the plaintiff subsequently attended on him. Be that as it may though Dr Faigenbaum did describe slight tenderness only and it was his opinion that that injury had no relationship to the work related injury.
The defendants' problem with that evidence was that it only came to light subsequent to both the plaintiff and Mr Robinson having given their evidence. Not knowing that information the defendants had not been able to explore those matters and their relevance, if any, in cross‑examination of those witnesses. Despite that the defendants did not seek to have those witnesses recalled for that purpose. Nor was any evidence called as to what impact, if any, any of those complaints might have had so far as the plaintiff's continuing fitness was concerned. It is noteworthy also that those matters were not raised in cross‑examination of Mr Ker who was called subsequent to the information coming to light.
In the end result that evidence counts for little. I cannot conclude that the plaintiff was not a credible witness simply because he did not recall and recount those matters or determine whether he chose to deliberately not mention them.
Secondly, the defendants point to the plaintiff's denials of any knowledge of attending a public telephone booth on two occasions only a week prior to trial. Apparently the plaintiff had been under surveillance and had been observed to use the public telephone booth. On the other hand he had readily been able to recall having attended on a Dr Terace on Christmas Eve 1999. That he might specifically recall that occasion may well have been for the reason that it was in fact on Christmas Eve. That he may not have been able to remember whether or not he had gone to a phone booth a week ago may equally have been a short term memory lapse. It is not to say that the plaintiff was being deliberately evasive and not frank and open to the Court in not being able to remember what may have been an insignificant event. As it was, and it was confirmed by his partner, they cannot ring out on STD at home and do use a public telephone box when making long distance calls to his partner's sister who lives in Tasmania.
Thirdly, it was contended that the plaintiff was disingenuous when he denied in cross‑examination having a silver convertible style motor vehicle. The fact was that it was his wife's motor vehicle which he had bought for her. In truth it was not his vehicle and his response was appropriate and nothing more can be read into it.
Finally, the defendants contend that the plaintiff's assertions of severe financial impact leading to the need to sell his home in the first two years after the accident were proven wrong. The plaintiff's income in those years had been supplemented by a sickness and accident policy of insurance and he was in receipt, in total with his workers' compensation payments, of almost the equivalent income as he had been receiving pre‑accident and including his time working on the mines. Thus it would seem that there was little if any financial impact in those years as a consequence of his not being able to work post accident.
As to sale of the house it was the plaintiff's partner's evidence that the house was sold at the end of 2002. Clearly, his income for the year 2001/2002 and for the second half of 2002 was substantially less than it had been in the years prior. By this time his insurance "top up" would have run out. That provides an explanation for the financial stress which he was then under. His assertions of severe financial impact are supported by the evidence of his income in those years.
On the evidence before me there is no suggestion of inconsistency in presentation by the plaintiff to the doctors called or that his complaints were not consistent with what was found on examination or that he has exaggerated in his presentation to them.
My assessment of the plaintiff as he gave his evidence was that he was very forthright and open, expansive in his responses rather than tight to a script, relaxed and in one instance given to wry humour. In another sense he was very matter of fact. I am not satisfied that I should have any doubt so far as the plaintiff's credibility is concerned. I found him to be credible. None of the issues raised by the defendants causes me to hold to a different view.

Extent of the prior unrelated injuries and their impact on his work capacity

I have referred above to injuries both detailed by him and by Dr Faigenbaum which the plaintiff had suffered prior to this accident. As to the injuries which the plaintiff disclosed he said they had resolved. By that I would understand him to be saying that they were not causing him any trouble at the time when he suffered this accident. There is no evidence which would suggest otherwise.
Likewise, the injuries which were disclosed by Dr Faigenbaum. Whilst there was muscular strain to the back and a significant injury to the right wrist there was no evidence or prognosis made that these injuries would limit the plaintiff in the scope of his employment in the future. Likewise, Dr Faigenbaum's evidence that the slight tenderness of the left knee a couple of months before the accident was unrelated to the injury suffered on that occasion went unchallenged.
I reiterate that the defendants' complaint that these matters only came to light in the course of trial does not mean that the defendant's were precluded from either seeking to recall witnesses or otherwise calling evidence themselves as to the consequences, if any, that those injuries may have had on the plaintiff's future employability. They chose not to. At the end of the hearing I am left with the evidence before the Court. It is not open to me to guess or speculate what relevance, if any, those injuries may have. There is no basis for me to accept the defendants' assertions in submissions that these matters would have reduced or even restricted the plaintiff's employability in the future.

Probability that the plaintiff would not have returned to mining work

The defendants predicate this probability on the basis that after his partner's mother had passed away he accepted full‑time employment with Buttercup Bakeries and that he was earning an equivalent income in Perth as compared to drilling work in harsh and remote conditions. Further, it is said that as his partner had suffered a cancer scare in 1996 that was good reason for him to stay in Perth and furthermore that by reason of his prior injuries and in particular his dominant right wrist they would have rendered him unsuitable for heavy mining work or long hours truck driving.
In making that submission the defendants are confronted with the plaintiff's evidence, which he maintained in cross‑examination, that it was his intention to return to mining work and that he intended to do so some time in the year 2000. Whilst he was happy working at Buttercup Bakeries he, in a sense made do in the circumstances, but it was not what he wanted to do. After his partner's cancer scare in 1996 he had gone back to mining work. No reliance therefore can be placed upon that fact to suggest that he would not have gone back to mining following the death of his partner's mother as he proposed to do. Likewise, insofar as his prior injuries are concerned there is no evidence which supports a view that the plaintiff would not have been physically able to continue in that industry.
In those circumstances there is no reason why I should not accept the plaintiff's evidence that he would have returned to mining work as he intended to do but for this accident.

Plaintiff's back complaint – a consequence of the accident?

The plaintiff did have problems prior to this accident. He had suffered a compressed fracture of the lower C7 as a result of a motor vehicle accident in about 1977, 78 or 79. He wore a neck brace for about one month at that time. He did not suffer headaches as a consequence of that injury. He suffered a right shoulder injury playing football from which he retired at about age 27, some 10 years prior to this accident. In 1997 he had presented with muscular strain between the shoulder blades and the lower back. He subsequently went back to work on full‑time duties.
There is no evidence that any of these injuries were causing the plaintiff any problem at the time of his accident or, for example, that there was any condition symptomatic which may have caused him to suffer back pain.
Mr Ker in his report of 20 December 2000 noted that the plaintiff reported "…from time to time diffuse pains in his shoulders and more particularly the complaint of headache. He has some low back discomfort." Mr Robinson in his report of 24 November 2003 to Dr Faigenbaum noted the plaintiff's problems, inter alia, as "osteoarthritis of the lumbar spine which is causing localised pain especially with forwards flexion.'
Dr Faigenbaum in his report of 10 March 2005 noted that the plaintiff was being seen "…on a regular basis regarding ongoing back and knee pain." He noted that on clinical examination the plaintiff "…wears bilateral knee braces, walks with altered gait and complains of bilateral knee pain and low back pain requiring ongoing analgesia and anti‑inflammatory medications." Mr Robinson in his report of 17 September 2004 notes "…the patient still has ongoing pain in his low back which is due to abnormal gait pattern…The diagnosis with regard to the low back area is osteoarthritis which has become symptomatic due to abnormal gait pattern." It was the plaintiff's evidence that he continues to have back pain.
Seemingly no more detailed medical investigation has been undertaken insofar as the complaint of back pain is concerned. The frequency and severity of the pain was not indicated by any evidence. Nor was any prognosis proffered.
No specific reference is pleaded in the statement of claim regarding the complaint of back pain. Pain generally is described as is favouring one side when walking as is pins and needles/tingling sensation to the left and right buttock. There was no indication other than that the back was asymptomatic prior to the accident and has since developed. Although Mr Robinson had not investigated the cause of the back complaint I nevertheless defer to his opinion that it is due to the plaintiff's altered gait. Given the circumstances I am satisfied on the balance of probabilities that the complaint of low back pain is a consequence of the injuries sustained in the accident.

The plaintiff's headaches – are they accident related?

There was no evidence of the plaintiff suffering headaches prior to the accident. The plaintiff started to have headaches when he was undertaking rehabilitation work watching the production line at Buttercup Bakeries. He described the headaches as starting at the back of his head and coming over the top and down across the forehead. They were not described as being debilitating.
There was no medical evidence as to any investigation made as to the cause of the plaintiff's headaches. None of the doctors called by the plaintiff dealt with this issue save to say that he complained of headaches. It cannot be assumed that simply because a person suffers headaches which commenced many months after an accident that the headaches are the product of that accident. Being of a non‑physical nature usually the cause of such headaches will be investigated by a neurologist or a pain management specialist who will opine whether or not there is any supporting or underlying symptomatology which may be causative of headaches and which may be related back to certain events or whether a certain event can be said to have been a triggering factor leading consequentially to the suffering of headaches. There was no evidence of this nature in these proceedings.
There being no evidence that the headaches are a consequence of the accident I conclude that they are not a relevant consideration in my assessment.

The plaintiff's psychiatric condition – the effect on his work capacity and need for future treatment

The plaintiff suffered a major depressive disorder with associated generalised anxiety disorder and panic attacks. Dr Bassett opined that the plaintiff's condition was significantly related to the accident. In his last report Dr Bassett noted that the plaintiff was not showing any clinical signs of depressive illness, although very frustrated by the legal process he had re‑established a sense of humour and a sense of optimism for the future. He noted a significant improvement in the plaintiff's mental state and his ability to cope with his chronic pain. Medication is continuing.
Undoubtedly the totality of the plaintiff's health problems and stressors other than those arising from this accident are likely to have had some impact on his psychiatric condition. The workers' compensation process and court proceedings on the common law claim undoubtedly have been stressful. That point is made often in Dr Bassett's reports. Not only was there the trial on liability but there was also an appeal to go through. This assessment of damages is the third time before the Courts. There have also been health problems, namely his diagnosis of Hepatitis C and mature age onset of diabetes and also his partner's health in that she has had a further cancer scare in 2004. Undoubtedly these matters will also have been stressful for him and impacted upon his psychiatric condition. Be that as it may his condition has improved and is improving and would not in other circumstances prevent him from working.
The stress so far as the legal proceedings are concerned will (subject to any appeal) be shortly a "weight off his shoulders". With that resolved it will no longer cause the worry and anxiety which it has. The other matters however may be ongoing. But those are not matters for which these defendants are liable, ie they are not accident related.
Therefore I conclude that the need for ongoing psychological counselling and treatment insofar as they being a consequence of this accident are concerned will not be needed.

The consequence of recent epileptiform seizures – a consequence of the accident or not?

The plaintiff suffered epileptiform seizures which occurred on 20 and 27 December 2004. Dr Faigenbaum, the plaintiff's treating general practitioner, doubted that those seizures were in any way accident related. He had referred the plaintiff to two specialists, a Dr Climatis(?) and a Dr Panagyres who apparently performed an EEG on the plaintiff. No evidence was called from those specialists. Had it been that they were accident related then it might reasonably have been expected that they, being in the best position to do so, would have been called to establish that fact.
Whilst Dr Bassett postulated that the seizures may have been due to medication which the plaintiff was on at the time he could not be emphatic. Likewise, Mr Ker similarly postulated that medication may in some circumstances be a causative factor. However, neither of these doctors treated the plaintiff for the seizures and their evidence insofar as possible cause is mere speculation. I am not able to presume or assume that all or, indeed, any of the plaintiff's ills are a consequence of his accident.
Accordingly I am not satisfied that the epileptiform seizures are accident related.
For the record I also note that the statement of claim does not contain any plea in respect of the seizures or that they are accident related and no attempt to amend the claim to include the epileptiform seizures as a consequence of the accident was made. Nor was the case opened or developed on that basis.
It is clear nevertheless the epileptiform seizures have had a significant impact on the plaintiff's future economic loss. It is clear from the evidence of Dr Faigenbaum and Mr Ker that as a consequence of these seizures the plaintiff cannot return to any work involving moving machinery or truck driving. I will discuss the consequences in more detail under the heading of future economic loss.

Effect of recent diagnosis of diabetes and hepatitis C

There is no evidence to suggest that either of these conditions are accident related. There is no indication that the hepatitis C will become active. Nor, in any event, is there any evidence to suggest that either of these conditions will impact on the plaintiff's employability in the future.

Assessment of damages

1.Paid workers' compensation benefits (to be reimbursed):
1.1Weekly payments of compensation             $108,636.86
1.2Statutory allowances  $ 90,497.72
1.3Rehabilitation  $ 13,647.19
The parties are agreed on these items in the total sum of $212,980.77

2.Travelling expenses:
2.1Past travelling expenses are agreed in the sum of $1,300.
2.2Future travelling expenses are agreed in the sum of $2,500.

3.Past medication expenses:
Agreed in the sum of $2,876.

4.Past Medicare expenses:
Agreed in the sum of $4,371.

5.Past medical expenses:
Agreed in the sum of $6,327.50.

6.Future medication expenses:
Agreed in the sum of $10,876.

7.Future general practitioner attendance expenses:
Agreed in the sum of $3,000.

8Future specialist attendance expenses:
Agreed in the sum of $1,000.

9.Future psychiatric attendance expenses:
For the reasons indicated earlier no allowance will be made for this item

10.Future therapy attendance expenses:
The plaintiff has attended on physiotherapists, a chiropractor and masseur whose treatment has provided some relief. His evidence was that he can no longer afford attendances for such treatment but that he would go to them if he could afford. That proposition is a little perplexing. The plaintiff has in the last 12 months or so received approximately $90,000 from superannuation funds on the basis that he now has a total permanent disability. From those funds he has purchased a new motor vehicle for his partner and another for himself. If his physical circumstances were such as warranted attendances on any form of therapy then he could have well afforded to do so. There was no evidence that he had attended any form of therapy since receipt of those funds.
Furthermore, the need to attend for any such form of therapy was not supported by any current medical evidence. The plaintiff is familiar with an appropriate exercise programme which he can undertake in the home environment and there is no need for further assessment or attendances for this purpose.
Accordingly no allowance is made for this item.

11.Past Health Club expenses:
Agreed in the sum of $735.

12.Future swimming pool attendance expenses:
The plaintiff has undertaken swimming as part of his rehabilitation, however he found it to be painful on his knees and has not continued with it. Again, there was no current medical evidence which supports the need for ongoing attendances at a swimming pool. Accordingly no allowance is made.

13.Future surgery expenses:
Mr Robinson believes that the plaintiff will need a total knee replacement on the right side in approximately 10 years. The cost of a total knee replacement is $20,000. Mr Ker also believes that the plaintiff may be a candidate in the future for a prosthetic knee joint replacement. This claim will be allowed.
Using Table 1 in the Appendix to Luntz, Assessment of Damages for Personal Injury and Death, 4^th ed, a discounted figure of $11,168 will be awarded.

14.Past and future lawn mowing expenses:
Agreed in the sum of $2,000.

15.Past gratuitous services:
Agreed in the sum of $15,000.

16.Future gratuitous services:
Agreed in the sum of $1,000.

17.Past loss of income/earning capacity:
Despite the issues raised by the defendants there is no reason for me not to accept the plaintiff's evidence that he would have gone back to work in the mining industry in about the year 2000 (the plaintiff's schedule of damages suggests "by at least April 2000" which I am prepared to accept). Furthermore, his past work history indicates that he is prepared to change employment and employers from time to time. There is no reason apparent why that pattern may not have continued. There was no medical evidence to suggest that by reason of those other matters for which he had sought medical attention from time to time that they would have precluded him from continuing to work in the mining industry. It is apparent however that as a consequence of the epileptiform seizures which the plaintiff suffered on 20 and 27 December 2004 he could not continue to work in the mining industry. They are not something for which the defendants are liable. It is clear from the evidence of Mr Ker and Dr Faigenbaum that as a consequence of these seizures the plaintiff cannot return to any work involving moving machinery or to truck driving. Thus, so far as his past loss of earning capacity in the mining industry is concerned that can be calculated only for the period from April 2000 through to 20 December 2004.
Thus there are two periods for which past loss must be calculated. First as a delivery driver from the date of the accident to the end of March 2000 (48 weeks) and secondly from the beginning of April 2000 to 20 December 2004 (246 weeks).
Prior to the accident the plaintiff's average earnings were $852.67 gross per week being $592.47 net per week. Thus from the date of the accident to March 2000 the plaintiff would have earned –
$592.47 x 48 = $28,438.56 net.
In assessing the plaintiff's loss which he would have earned in mining activities I accept the rates as set forth in the report of Professor Mulvey (exhibit 16). The evidence as to earnings of $80,000 per annum of Noel Desmond Forde, an operations manager in the drilling industry, I accept as being broadly in accordance with Professor Mulvey's data.
(i)April 2000 to April 2001 ‑ $1,243 gross per week, $901.48 net per week, a total of $46,877.08 net per annum.
(ii)April 2001 to April 2004 ‑ $1,436 gross per week, $1,003.77 net per week, a total of $52,196.16 net per annum which equals $156,507.48.
(iii)April 2004 to 20 December 2004 (39 weeks) $1,697 gross per week, $1,153.14 net per week, a total of $44,972.46.
(iv)The plaintiff would have earned in the mining industry a total of $248,367.02 net.
Thus since the date of the accident to 20 December 2004 the plaintiff would have earned –
$28,438.56 + $248,367.02 = $276,795.58 total net.
The plaintiff received weekly payments of compensation totalling $108,636.86 which equates, accepting the plaintiff's calculation in his schedule of damages, $89,243 net. Accordingly the plaintiff's past loss of income for the period to 20 December 2004 is –
$276,795.58 ‑ $89,243 = $187,552.58.

18.Interest on past loss of income:
Interest on past loss of income will be allowed for the period of 4.5 years being from April 2000 to December 2004.
$187,552.58 x 3% x 4.5 years = $25,319.60.

19.Past loss of superannuation benefits:
The rates and calculations are set forth in the plaintiff's schedule of damages. The calculations will be discounted by 30 per cent in accordance with Jongen v CSR Ltd & Anor (1992) Aust Torts Reports 81‑192 case.
$852.67 @ 8% = $68.21 per week from the date of accident until March 2000 (48 weeks) = $3,274.08.
$1,243 @ 8% = $99.44 from 1 April 2000 to 30 June 2001 (64 weeks) = $6,364.16.
$1,436 @ 8% = $114.88 from 1 July 2001 to 30 June 2002 (52 weeks) = $5,973.76.
$1,436 @ 9% = $129.24 from 1 July 2002 to 30 June 2004 (104 weeks) = $13,440.96.
$1,697 @ 9% = $152.73 from 1 July 2004 to 20 December 2004 (24 weeks) = $3,665.52.
Total for the period $32,718.48
Less 30% for tax and administration $ 9,815.52
Total$22,902.96

20.Future loss of income/earning capacity:
As indicated earlier in these reasons the development of epileptiform seizures which occurred on 20 and 27 December 2004 has become a most significant issue in terms of the plaintiff's future loss. There was no direct evidence that the seizures are a consequence of the accident or his treatment for his accident related injuries. Speculation by doctors who have not treated the plaintiff for this condition is not sufficient. Likewise, I am not able to presume, assume or speculate that at some indeterminate time in the future these seizures may go into remission whereby the plaintiff might, but for his accident related injuries, have gone back to work in the mining industry. The only conclusion which can be drawn is that this condition is an ongoing problem and that therefore as from 20 December 2004 the plaintiff became unsuited for most usual occupations for which he was otherwise suited as a consequence of circumstances unrelated to the accident. The consequences must therefore be that the accident caused injuries do not produce a diminution of earnings after the onset of the epileptiform seizures.
What, if any, retained earning capacity does the plaintiff have?
The plaintiff's statement of claim pleads that he has a reduced working capacity and a diminished scope of employment. The claim is not made that he has no retained earning capacity or that he is permanently disabled. The plaintiff's evidence was that he wants to return to work but does not know what scope for employment there is for him. However, he has not sought any form of employment. An expressed willingness to work does not suggest that he is incapable altogether of being engaged in some type of gainful employment. Clearly, however, he is precluded from going back to his prior employment in the mining industry and that of driving a delivery vehicle as he did for Buttercup Bakeries. Any form of manual labour is not within his capacity. He is a person of limited education and his past work experience has been in areas which are no longer open to him.
Mr Robinson in his report of 17 September 2004 said that the plaintiff "…will have significant problems gaining any form of work because of his injuries and because of his basic level of education." Mr Ker in his report of 16 March 2005 expressed the view of a permanent unfitness for gainful work. However, that was predicated on the basis that in the past three years the plaintiff had not been able to find any form of gainful employment. His evidence was that in fact he had not looked for employment.
Dr Faigenbaum in his report of 10 March 2005 described the plaintiff as currently being "…totally and permanently unfit for work." Whether that is in respect to his pre‑accident work or for any work whatsoever was not clarified.
It seems to me that I am not able to conclude what, if any, work the plaintiff is now capable of undertaking. There was no evidence whatsoever as to what work might be open to the plaintiff and what his earnings might be. That does not mean however that I should assume that he is not capable of some form of gainful employment. What is clear is that there is no loss for the future being the differential between what he might have earned in the mining industry less what he might be capable of earning now.
Given the consequences of the plaintiff's epileptiform seizures, as best as can be achieved under this head of damage is to approach any loss on a global basis. In my view the loss is modest and an appropriate award if $50,000.

21.Future loss of superannuation benefits:
A nominal allowance, given the circumstances, would be $5,000.

22.General damages:
The plaintiff was injured in a violent incident which has caused prolonged and ongoing problems with both knees in addition to minor discomfort elsewhere. The debilitating routine of about 20 operative procedures, some complicated by infections requiring extensive hospitalisation and unsuccessful vocational rehabilitation has understandably led to psychological consequences for which he was hospitalised on at least three separate occasions. There is unsightly scarring on both knees. He has and will continue to suffer intrusive levels of bilateral knee pain with added knee swelling. He will necessarily be required to continue wearing a knee support on his left knee and a knee brace on his right knee. Continuing cortisone injections and the prospect of a total knee replacement on the right side lie in the future. Consequentially he also experiences back pain which is attributed to his altered gait to compensate the knee injuries.
The plaintiff was 38 years of age at the time of injury. His life has been profoundly affected in all aspects, namely, work, social, recreation and family. His quality of life has been substantially reduced. All these are matters for which he should be compensated.
In my opinion an appropriate sum for general damages is $60,000.

Summary of damages award

Paid workers' compensation benefits
(to be reimbursed) $212,980.77

Travelling expenses:
Past$ 1,300.00
Future$ 2,500.00

Past medication expenses  $    2,876.00
Past Medicare expenses  $    4,371.00
Past medical expenses  $    6,327.50
Future medication expenses  $ 10,876.90
Future general practitioner attendance expenses   $    3,000.00
Future specialist attendance expenses                 $    1,000.00
Past Health Club expenses  $      735.00
Future surgery expenses  $ 11,168.00
Past and future lawn mowing expenses               $    2,000.00
Past gratuitous services  $ 15,000.00
Future gratuitous services  $    1,000.00
Past loss of income/earning capacity                  $187,552.58
Interest on past loss of income  $ 25,319.60
Past loss of superannuation benefits                   $ 22,902.96
Future loss of income/earning capacity               $ 50,000.00
Future loss of superannuation benefits               $    5,000.00
General damages  $ 60,000.00

In conformity with the trial judge's finding of 20 per cent contributory negligence on the part of the plaintiff the total award will be reduced accordingly.
I will hear counsel as to the final orders.