Elizabeth Vocisano; Domenico Vocisano and Domenico Calabria v Phillip Charles Sammut [1986] ACTSC 117 (19 December 1986)

SUPREME COURT OF THE ACT

ELIZABETH VOCISANO; DOMENICO VOCISANO and DOMENICO CALABRIA v. PHILLIP CHARLES
SAMMUT
S.C. Nos. 50 and 374 of 1984
S.C. No. 1783 of 1983
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Damages - personal injury - mitigation of loss - steps taken to obtain alternative employment - no question of principle.

Damages - personal injury - degenerative changes to spine - aggravation of prior condition - no question of principle.

Damages - personal injury - claim for loss of profits of business or for loss of earning capacity - no question of principle.

Damages - personal injury - plaintiff in receipt of invalid pension - recovery of cost of medication.

Redding v. Lee; Evans v. Muller [1983] HCA 16; (1983) 151 CLR 117

HEARING

CANBERRA
19:12:1986

ORDER

There be judgment for the plaintiff in the sum of $63,004.20.

The defendant pay the plaintiff's costs.

DECISION

On 24 July 1986 I announced that there would be a finding for the plaintiff on the question of liability. On 10 September and 21 October 1986 I heard submissions from Counsel on the question of damages. I now give my decision on that question.

2. The plaintiff was born in Calabria on 8 February 1931. He had only three years of schooling and received some training as a painter and worked in that field before he came to Australia in 1956. After his arrival here he married the lady to whom he had become engaged in Italy. They have two adult children. Mr. Vocisano can read only a little English. He reads Italian. It was not necessary for him to use an interpreter at the hearing.

3. In Australia he worked as a labourer in the Canberra area and then as a painter from 1958. By 1983 he was running his own painting business under the style "Elizabeth Paints". His wife was a partner in the business but she did little apart from staying at home and answering telephone enquiries. At the time of his injury he was carrying out work on the painting of government houses at Holt.

4. After the collision the plaintiff drove home and then to the Calvary Hospital where he was x-rayed and provided with a soft collar and tablets. That night he felt pain in his neck, back and arms, according to his evidence. He returned to the hospital on 16 and 23 August 1983. In the meantime he also saw his general practitioner, Dr Jarvis, whom he has seen several times since. Dr Jarvis referred the plaintiff to Dr Vance, who performed a manipulation of the neck in the Royal Canberra Hospital on 14 February 1984. In the meantime the plaintiff was subjected to physiotherapy. A further opinion was sought from Dr Newcombe, a neurosurgeon, in February/March 1984. The plaintiff was placed on an invalid pension on 30 May 1985 and has not worked since then.

5. Before his accident the plaintiff performed a full range of duties as a painter both on the interior and exterior of buildings. Over the years he, or rather his firm, had successfully tendered for government painting contracts. On other occasions, the firm sub-contracted to other firms which had successfully tendered. There is a good deal of evidence on the complex arrangements between the various groups of painting contractors and sub-contractors in the Canberra area, not all of which was easy to follow and not all of which, in my view, needs to be sorted out. At any rate at the time of injury the firm was in the process of completing work on houses at Holt and was expecting to go on to painting work pursuant to another contract on houses at Melba and Evatt. The firm employed the plaintiff's son, Mr. Joe Vocisano, and another painter, Mr. Dieter Kunert, on the Holt job. The plaintiff said that he tried to continue working on the Holt job but was only able to do a bit of work on the windows and door frames and when he did so he got pain in his neck and arms. Nevertheless, he went to the job each day spending, according to his evidence, between ten minutes and two hours on each occasion. Then he would go home and sit and read the papers.

6. When the Melba and Evatt jobs started towards the end of September 1983 the plaintiff again, according to his evidence, started to do some of the painting work on the outside detail of the building but again he was stopped by pain from continuing beyond half an hour to one hour on each occasion. In March 1984 the plaintiff arranged for the work on the Evatt and Melba houses to be taken over by his son and a man called Pat Calabria. This arrangement was apparently not known to the government department with whom the firm had the contract, and the monies for the work that was carried out still came direct from the government to the plaintiff who then arranged for payment out to S and E Painters Pty. Ltd. and Hawker Home Maintenance which were apparently the names under which Messrs Calabria and Joe Vocisano carried on business.

7. Despite the fact that the plaintiff himself said that he took no active part in painting work thereafter, his firm, nevertheless, tendered for government contracts and was successful in obtaining one of those contracts after March 1983. According to the plaintiff, however, the work was carried out by Joe Vocisano and Dieter Kunert. Mr. Kunert was a sub-contractor whereas Joe Vocisano was an employee. In June 1984 the plaintiff sold the house owned by him and his wife at Hawker, moved temporarily to his father-in-law's place at Cook and then bought a block of land at McKellar upon which he had a house erected by sub-contractors. He used to go to that house during the course of construction. He said that he did little things around the property but remembered not to do any physical work. However, he said that when he tried to do things like mowing the lawn, painting the garage and so forth he was "very very sick" and that annoyed his physiotherapist.

8. In evidence the plaintiff's claim was that most of his pain was in the neck and that pain came on after five minutes or so of physical labour, that he could tolerate it for no more than half an hour, that it was worse if he tried to paint a ceiling or bend to try to paint a skirting board. He also tried to help by handing tools to the workers and moving piece of furniture but this caused pain in his neck and also in his back. His neck gets worse when he tries to carry out gardening in his new house. The plaintiff said that he takes pain-killers and tranquillizers daily but he has not had to pay for these since he has been on an invalid pension. The cost would otherwise be about $10 a month according to the prices marked on the bottles.

9. The plaintiff said that he had never had any previous trouble with his neck, although in 1975 he had had some trouble in his back and had been treated by Dr Spence and a chiropractor. He was off work for about a week and continued to have pain for a couple of months. He had no further trouble with his back until 1983.

10. At the time of the accident the plaintiff had borrowed money to build some holiday flats in the Bateman's Bay area. These were not complete at the time of his injury and no building work was done after the injury. The plaintiff said that he has applied to fifty-seven government departments for suitable employment but has not been successful. At the present time his complaints are pain in the neck and lower back, the neck being the worse. He also has pins and needles in his arm and three fingers. When asked to indicate which arm, he indicated the right arm but then he went on to indicate the left arm as well. He has limitation of the rotation of the neck of more than one half. Pain radiates into his left leg and that is worse than the pain which radiates into his right leg. He feels dizzy when he bends down and when he stands on trestles. He uses a soft collar when he takes a long trip in his car. The pain in his neck interferes with his sleep. He goes to bed at 10 p.m., wakes at 1 a.m. and dozes until 8 a.m. He has had to give up rod fishing because he cannot cast the rod. He has also had to give up bowls, table-soccer and pruning. He has had to give up his work as a committee member of the Italo-Australian Club because he is not able to move the chairs and tables. He is able to remain in the surf only for ten minutes or so. Pain interferes with his sexual relationship with his wife. However, he spends more time now than he did before at the Calabrian Association, the Juventis Soccer Club and the Canberra Labor Club of which he is a life member.

11. Counsel for the defendant was concerned by the use of cross-examination to establish that the plaintiff had been involved in other motor vehicle injuries in the past and sought to rely upon these injuries to show that the plaintiff had not been frank with the doctors in disclosing those injuries to the doctors and to show that it was one or other of the injuries in the past that was responsible for whatever condition the plaintiff was suffering from beyond August 1983. The plaintiff conceded that in 1972 or possibly 1974 or 1975 he was involved in a collision in the Civic area when his vehicle was struck at the back. He also said that on another occasion which was in August 1984 his vehicle was struck on the righthand side in Antill Street. On another occasion, on 25 January 1981 the plaintiff backed into a stump of a tree causing some damage to the bumper bar and rear of the vehicle but not sustaining any injury himself.

12. X-rays taken on the day of the injury reveal some degenerative changes but no fractures or dislocations in the cervical or lumbar area. Dr Jarvis, in an early report of 6 September 1983, stated that the plaintiff was not improving with conservative treatment after three weeks, so he was referred to Dr Vance. In his evidence, Dr Jarvis spoke of a consultation on 7 November 1980 when the plaintiff complained of pain in his left arm and a similar complaint on 20 January 1982 which Dr Jarvis understood to be a lipoma. Dr Jarvis referred the plaintiff to a surgeon to have the lipoma removed. Dr Jarvis saw the plaintiff six times between 7 November 1980 and 17 August 1983 and on no occasion was there complaint of cervical or lumbar or associated pain. He was last seen before the subject injury on 22 February 1983 when he was able to carry on his work as a painter. When last seen prior to the hearing, that is to say, on 24 February 1986, the plaintiff was making the same complaints as he had made on the twenty-nine occasions since August 1983. Dr Jarvis had a note of the plaintiff mentioning another car accident on 20 August 1984, the date of the consultation being 24 September 1984. The complaints made by the plaintiff were of jarring his neck, of not sleeping well and of neck pain, complaints which were similar to those made in August 1983. There were no complaints of pain radiating to either arm until 30 July 1984 which complaints were repeated on 24 September 1984 and 12 February 1985. The first reference to any pain in the right shoulder was in February 1985. There was also complaint of pins and needles in both arms, however, as early as March 1984. Dr Jarvis said that over the period the complaints of pain tended to vary insofar as sometimes the neck is the major problem and sometimes the back gives the plaintiff more pain. The complaints of lower back pain to Dr Jarvis were in an area ranging from the lumbo-sacral junction to L3.

13. On 7 November 1980 Dr Jarvis' notes revealed that the plaintiff was complaining of pain in the left arm which the doctor ascribed to osteoarthritis in the cervical spine. That was followed up on 11 November 1980. There was a visit on 28 October 1981 which does not appear to have any connection with any of the issues in the case. On 20 January 1982 the lipoma was discovered. In February 1983 there was some complaint of abdominal pain but again that appears to have little bearing on the present case. Ever since the accident in August 1983, however, the plaintiff made complaints of significant pain on each occasion he saw Dr Jarvis, and demonstrated onset of pain on movement of the cervical lumbar spine and always demonstrated restriction of neck movement both in rotation and in extension and flexion.

14. Dr Vance first saw the plaintiff on 6 September 1983 on reference from Dr Jarvis when the complaints were of neck pain extending down the left arm to the fingers of the left hand. On the next occasion, 4 October 1983, the complaints had widened considerably and pain was felt in the dorsal region of the back and in the back of the head. There was not only restriction of movement in the neck but also in the lumbosacral spine. Resumption of physiotherapy was recommended. The plaintiff continued to see Dr Vance and a manipulation was carried on the cervical spine under general anaesthetic on 14 September 1984. Two weeks later the plaintiff said that the pain remained the same although there was more freedom of movement in the neck. He did not see Dr Vance again for another two years. Dr Vance said there were no objective signs of sensory or motor loss in the arms. The major source of pain was in the neck but there was pain in the lower back on bending. On the assumption that the plaintiff continued to complain of disabling pain in the neck, Dr Vance took the view that the plaintiff's symptoms would persist indefinitely but there was a chance that the symptoms would settle and he might return to work. Dr Vance did not give evidence.

15. The plaintiff was first seen by Dr Newcombe on 1 March 1984 and then on 6 and 28 June 1984. In his report of 14 August 1984, Dr Newcombe said that the injury was an aggravation of cervical and lumbar spondylosis previously substantially asymptomatic and the plaintiff was unable to work as a painter. These findings were based on the complaints and history of the plaintiff which were largely in accord with what he had said to other doctors and on x-ray findings. On 5 March 1986 Dr Newcombe reported that he had seen the plaintiff once since his last report on 27 February 1985 and the condition was unchanged. Dr Newcombe expressed the view that the plaintiff might be able to paint walls but not ceilings and scaffolding work would remain difficult for him.

16. In his evidence to the Court, Dr Newcombe said that he furnished a certificate to the plaintiff for the purpose of the Commonwealth Employment Service. He did that in an effort to try and get the plaintiff accepted for some clerical employment or if he was not immediately suitable, to receive some vocational training for that purpose. He thought that the plaintiff's history was not such that he should have ceased to work as a painter before the age of 60 or thereabouts. He said that on the assumption that the plaintiff felt no pain following a 1984 collision then that episode caused only a transient exacerbation of symptoms. In cross-examination he conceded that in the light of the plaintiff's pre-existing cervical lumbar spondylosis, he would have been well advised to think of taking alternative employment. The plaintiff's case, however, was that until the 1983 injury he was not aware of any degenerative condition in his spine. On the assumption that other collisions occurred as put to the doctor by counsel, he thought that they were likely to produce exacerbations and a subsequent settling of symptoms. Dr Newcombe conceded that his diagnosis was based upon a symptom free history prior to August 1983, but if there were symptoms extending for three years from 1974 to 1976, the exacerbation in that period had settled down but the condition could be likely to arise once again on any occasion when the back was subjected to undue strain. Dr Newcombe expressed the view that the plaintiff's complaint of pain in the right arm indicated some entrapment of the nerve root arising from disc lesions in the cervical spine pre-existing the accident but aggravated by it. If there was a complaint of pain in the arm of that nature prior to the accident, Dr Newcombe agreed that he would have to review his opinion as to whether the plaintiff could continue working as a painter until he was 60. Dr Newcombe thought that the alleged crush fracture at L1 level was not the source of the plaintiff's complaints in the lumbar area but that the reason for those symptoms was his spondylosis. Dr Newcombe's view as to the plaintiff's incapacity was summed-up in his statement that the plaintiff might be able to carry out some spray-painting. He might be able to carry out painting under qualified and restricted circumstances but he could not climb up and down, could not work on scaffolding effectively and could not do a lot of bending and stooping. Dr Newcombe took the view that if the plaintiff was subjected to operative surgery it would relieve the problem in the cervical area sufficiently to raise the possibility that the plaintiff could return to painting. Operation has not really been discussed with the plaintiff as he indicated clearly that he does not want to be operated upon.

17. The x-rays taken of the plaintiff's lumbar spine disclosed evidence of a crush fracture at the L1 level. Dr Calder expressed the view in his report of 10 May 1984 that that crush fracture was sustained in the injury of 12 August 1983. No other doctor expressed that view and I observe that it was not pressed on the plaintiff's behalf. Indeed, in his evidence to the Court, Dr Calder said that the observation of the crush fracture on the CT scan could not indicate whether it was one year or twenty years old. As Dr Calder saw the plaintiff only once, I do not think that his evidence contributes greatly to the case.

18. Dr McGonigal, an orthopaedic surgeon, examined the plaintiff on one occasion on behalf of the defendant. He took a somewhat sceptical view of the plaintiff's complaints and it was that scepticism which led him to the conclusion that the plaintiff exaggerated his disability and that his return to his former occupation was limited by years, the long-standing degenerative changes and by his motivation. In his evidence to the Court, Dr McGonigal said that he observed during the consultation that the plaintiff's movements made on request were more restricted than those made spontaneously. In fact the only impairment of spontaneous movement was imposed by the collar upon the cervical spine. Dr McGonigal expressed the further view in his evidence that it was unlikely that the plaintiff's back would have been asymptomatic prior to August 1983 and that symptoms were in any event inevitable having regard to the degenerative condition of the plaintiff's spine. Dr McGonigal doubted that the plaintiff could have expected to work much beyond the age of 55 years in any event and without the effect of the injury of August 1983. If one accepted the plaintiff's complaints on their face value, according to Dr McGonigal, the change in his history might be due to one or a combination of several factors, that is to say, an increase in the pathology or emotional disturbance or functional overlay. In any event, Dr McGonigal agreed that there was a disability but as to the extent of it both before and after injury, he agreed that his opinion was dependent upon an assessment of the plaintiff's genuineness.

19. Dr Andrews, a consultant neurologist, examined the plaintiff of behalf of the defendant on a number of occasions. The first was on 29 October 1984. Reporting then, Dr Andrews reviewed x-rays taken on 8 March 1984 which showed long-standing degeneration at C5/6 and to a lesser degree at C6/7 and also a posterior bulge discernible on a CT scan at L4/5. Dr Andrews' original view was that the plaintiff was not fit for work like painting, but upon re-assessment on 11 August 1985 expressed caution whether the plaintiff's disabilities were in proportion to his injury. Electrical studies showed that there was no nerve root entrapment in the cervical or lumbar spine. A further CT scan failed to disclose any reason for the severe restriction of neck movement. When he last saw the plaintiff on 21 February 1986, Dr Andrews continued to express doubt as to the extent of the plaintiff's disabilities and symptoms.

20. Dr Lai was called to give evidence on behalf of the plaintiff. He was the plaintiff's general practitioner from October 1976 to November 1979 and only once during that period did the plaintiff complain of backache. That was on 15 October 1976. The plaintiff was in fact seen by Dr Lai's locum and the note on the record was that the plaintiff had been suffering backache for six months particularly during changing weather and when carrying out heavy work.

21. Dr Lai was called to give evidence on behalf of the plaintiff. He was the plaintiff's general practitioner from October 1976 to November 1979 and only once during that period did the plaintiff complain of backache. That was on 15 October 1976. The plaintiff was in fact seen by Dr Lai's locum and the note on the record was that the plaintiff had been suffering backache for six months particularly during changing weather and when carrying out heavy work.

22. In the light of all the above, it is obvious that ultimately an assessment of the extent of the plaintiff's injuries and disabilities depends to a large extent upon how far one accepts him as a witness of truth on the particular issues. In the first place it is necessary to say that he was not particularly impressive as a witness, but he was not prone to obvious dramatization and exaggeration and it is necessary to exercise caution in allowing impressions to govern this aspect of the case. However, there were other unsatisfactory aspects of the case presented on behalf of the plaintiff. The location of the site of pain in his back was indicated clearly by the plaintiff as being in the lumbo-sacral area. This was, however, never clearly put to the doctors as the site of pain and overall one has to draw the conclusion that the plaintiff's major complaints to the doctors over the years had been in relation to pain in the neck area radiating into one or other or both of his arms. The evidence of the plaintiff as to his efforts to obtain work had, in my view, a negative effect. I am not convinced that his applications to the fifty-seven government departments were made in a genuine effort to obtain suitable work nor with a genuine expectation of any reasonable possibility that he would be offered work via that source. The only rational explanation, in my view, looking at the case as a whole, is that it was to somehow or other bolster his claim for damages. I think that the plaintiff was able to carry out some painting activities, and certainly some supervising role over his employees or sub-contractors well into the beginning of 1984. He was thereafter able to supervise the construction of a new home by sub-contractors and carry out various activities to assist them as well as to do work in and around the house when it was built and in and around the establishment of a garden. It is significant, I think, that in March 1984 Dr Newcombe in an effort to assist the plaintiff gave him a certificate that he was unfit to work as a painter but recommending that he be placed in a "clinical type situation". This certificate was addressed to the Commonwealth Employment Service. It was about that time the plaintiff abandoned his business as a contractor painter and thereafter seems to have regarded himself as permanently unfit for any type of employment, except for some sort of non-manual employment in the Public Service, which he had no reasonable hope of securing. Had the plaintiff wished to do so, he could, in my view, have tried to continue in business with his wife with contract painting although it would have been necessary to continue to engage employees or sub-contractors and the role taken by himself in the business would have been a much more limited one.

23. How far that business might have remained viable I do not know but it was not necessarily doomed to failure if the plaintiff had wanted it to succeed. On the precise medical issues that were raised on behalf of the defendant, I conclude that the crush fracture at the L1 level was not caused by the subject injury. I am not convinced that the plaintiff's condition was in any relevant way caused by or aggravated by or contributed to by any other motor vehicle collision in which he was involved. There was a temporary aggravation of his condition by a motor vehicle collision in August 1984 but that plays no significant part in the case at all. As far as the plaintiff's symptoms in the lumbar area are concerned, I am not convinced on the probabilities that this is related to the subject injury. The plaintiff, therefore, falls to be compensated for a real but certainly not major injury to his cervical spine which aggravated his pre-existing condition, the aggravation being to the extent that it rendered him incapable of carrying on a full range of duties as a painter, particularly prolonged work above shoulder level and work from trestles or ladders. This would be severely incapacitating in a man who depended upon work as an employee, but the fact was that the plaintiff had for many years carried on business as a painter, in partnership with his wife, engaging employees and sub-contractors and himself successfully tendering on behalf of the firm for both head contracts and sub-contracts. The plaintiff's lack of motivation to continue to derive income in this way in March 1984 was not due to any psychological factors and is something for which in my view the defendant should not be held liable in damages.

24. There was a great deal of evidence both oral and documentary which I took to be directed towards the issue of proving a loss of profits in the business which was brought about as a result of the plaintiff's injury. At the end of what was a very lengthy case, most of this material was beside the point. I invited counsel and indeed urged that written submissions should be lodged on the issue of damages. Such written submissions were not forthcoming, although after counsel had addressed I received a short outline of the plaintiff's case in written form from plaintiff's counsel. The plaintiff, of course, bears the onus on the question of damages as he does on the question of liability. On this question of loss of profits I am simply unable to understand what the plaintiff's argument is. In this situation it is inappropriate for me to try to summarise the evidence on the question and then seek to marshal on behalf of the plaintiff arguments which I do not understand. In my view the appropriate way to approach this aspect of the plaintiff's claim is to treat it simply as a claim for loss of earning capacity and not a claim for lost profits. It may have been that in conducting his business with his wife, the plaintiff was capable, prior to his injury, of earning more than a tradesman painter in employment. However, again the evidence does not convince me that this is necessarily so. There is evidence as to award rates payable to painters and also as to award rates payable to workers known as brush hands who, I understand, are people who are engaged in painting work of an almost unskilled nature, for instance painting fences and the like. The defendant contended that the plaintiff is capable of carrying out the work of a brush hand but I am not convinced that his cervical condition permits him to carry on that sort of work on a full-time basis. In my view the appropriate way to approach the question is to treat the plaintiff as, prior to the injury, capable of earning an amount slightly above the net amount payable to an employed painter and to treat his earning capacity as affected by the injury as reduced by one half. This is, of course, a very rough and ready way of assessing what has to be a fixed sum, but any other method of approach is, in my view, to lend a false air of mathematical accuracy to this part of the plaintiff's claim.

25. As far as the future is concerned, I am not convinced that the plaintiff would have continued to work to the age of 65 but for the injury. Having regard to the degenerative condition of his spine I think it unlikely that he would have continued beyond the age of 60 in the job of a painter in any event. I think it likely that even before that age he would have ceased to work full-time as a painter and, of course, there was always the further possibility that some trauma such as the subject injury might have further reduced his capacity for work.

26. The Painters ACT Award is in evidence. It discloses that from 1 July 1982 the gross weekly award rate payable to a painter-glazier was $237.30 and to a special class tradesman $251.40. There was also payable a parity allowance for painters working on construction sites which amounted to just over $38 gross per week. There were other site and tool allowances but I do not think that these are appropriate in calculating the present plaintiff's loss of earning capacity. There were variations to the award subsequently and from 6 October 1983 the rate payable for a painter-glazier was $247.50 gross per week and for a special class tradesman $262.20 per week. The rates increased by about $10 per week on 6 April 1985 and again on 29 March 1985 and finally on the material before me, on 11 February 1986, at which stage the rate payable to a painter-glazier was $274.30 gross per week and that to a special class tradesman $290.70 a week. I would calculate the plaintiff's likely gross earnings but for injury as being slightly in excess of these rates. That would mean that from the time of injury to the present time the plaintiff's likely earnings but for injury would have been about $280 a week and from the present time onward about $330 a week, giving the plaintiff the benefit of the on-site allowance. Accordingly then I calculate his past wage loss at $140 per week. That makes a total wage loss to date of $11,655 and it should be reduced for the contingencies to which I have already made reference to $10,000. For the future I award $165 per week for five years bringing the plaintiff to a little above the age of 60 which on the 3% discount table gives a figure of $40,000. That should be reduced for contingencies to $34,000. Out-of-pocket expenses are agreed at $3,338. There is a claim for future out-of-pocket expenses on the basis that the plaintiff has said that he takes pain-killers and tranquillizers which he receives free at the present time because he is on an invalid pension, but which have a price of about $5 written on each bottle. Whilst the law is that the Court is not to take into account any amount that the plaintiff receives by way of invalid pension, (see Redding v. Lee; Evans v. Muller [1983] HCA 16; (1983) 151 CLR 117) I do not think that the principle extends to allowing a plaintiff to recover the price of medication which he receives at no cost by reason of the fact that he is an invalid pensioner. Logically, of course, if the plaintiff is entitled to the price of medication that he would receive free in the future, he is also entitled to the price of the medication that he has received free in the past, and counsel for the plaintiff has expressly not sought to claim in respect of the notional cost of past medication. I refuse to award any sum for future medication on the ground that I am not satisfied that the plaintiff will incur any actual expense. Of course, there is always the contingency that his invalid pension may be brought to an end, but as I am so entirely unaware of the circumstances in which this might occur, it is impossible to put any monetary value upon the consequences of that contingency.

27. I assess pain and suffering and loss of enjoyment of life at $18,000 as to which I apportion $10,000 as to the past. Interest is calculated at 14 per cent per annum and the result reduced by half on the past wage loss of $10,000 and the past component of pain and suffering and loss of enjoyment of life of $10,000. Such interest amounts to $4,666.67. This will be added to the damages which makes a total of $70,004.67. The total is reduced by 10 per cent for contributory negligence to $63,004.20 and the plaintiff will have judgment for the sum of $63,004.20. I order that the defendant pay the plaintiff's costs.