Roy Pangallo v Pamela Shortall [1986] ACTSC 61 (8 July 1986)

SUPREME COURT OF THE ACT

ROY PANGALLO v. PAMELA SHORTALL
S.C. No. 1398 of 1981
Assessment of Damages

COURT

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

CATCHWORDS

Assessment of Damages - Disability caused by earlier injury - Aggravation of earlier injury.

HEARING

CANBERRA
8:7:1986

ORDER

THE COURT ORDERS THAT there be judgment for the plaintiff in the sum of $146,000.00

DECISION

This is a claim for damages arising out of an accident (the second accident) which occurred on 18 August 1977. The plaintiff was driving his motor vehicle in an easterly direction in College Street, Bruce when, at the junction of that street and Cooinda Street, the defendant failed to give way to him. In the circumstances I am satisfied that the defendant was negligent. The defendant pleaded that the plaintiff's negligence contributed to his own damage but her counsel made no submissions in support of the allegation and I am satisfied that she has failed altogether to make out a case in support of the plea. There must therefore be judgment for the plaintiff for damages.

2. The plaintiff was born on 9 November 1950. He was educated to third form but had no particular qualifications when he left school. At a later date he did almost all of a two years linesman's course at the Canberra Technical College but has never completed it.

3. After leaving school he worked at a wide variety of jobs for differing periods. Although he had many jobs he seems to have worked fairly continuously after leaving school until 8 August 1978. He worked as a clerical assistant doing messenger duties, as a tile stacker, as a labourer with the A.C.T. Electricity Authority before he began to work for that Authority as a trainee linesman, as a painting brush hand, as a driveway attendant at a service station, as a lube operator, as a carpet cleaner, again as a labourer, again as a carpet cleaner, again as a brush hand, as a surveyor's assistant, as a plasterer's labourer, as a labourer with a demolition construction company, as a builder's labourer and subsequently as a dogman, as a labourer with his brother, a concrete contractor, and subsequently as the operator of a machine used in his brother's business, as a clerical assistant with the film department of the National Library engaged in issuing films and receiving them back and as a backhoe operator employed by the Department of Housing and Construction.

4. On 14 October 1975, while operating a backhoe, he slipped and fell and sustained a back injury. I will refer to that incident as the 1975 accident. To that date he had, he said, been very fit and strong without any physical impediment. It appears that he had earlier suffered an injury to his eye but this did not affect his general physical condition. After the 1975 accident Dr Roebuck, his treating orthopaedic surgeon, found evidence of a disc protrusion. The plaintiff was subsequently admitted, in 1976, to Canberra Hospital for a period of eight days traction from which he recovered well and was then referred for a course of rehabilitative physiotherapy. He continued to work as a backhoe operator for, as he remembered, about nine months to a year. Then, probably about the beginning of 1977, he suffered a recurrence of fairly severe pain without any intervening trauma. Eventually, on 31 May 1977, a myelogram was performed but showed no positive result nor any surgically resectable disc protrusion. The plaintiff gave evidence that Dr Roebuck subsequently recommended that he should be put on lighter work. Dr Roebuck made no mention of this particular matter in his report of 2 May 1980, Exhibit A, but the report is terse and I am satisfied that it is most probable that the plaintiff's evidence on this point is correct for lighter work was in fact found for him, probably in June or July 1977, as an assistant to the foreman in a departmental depot. There he did clerical work for about a month until he was given a job monitoring and directing by radio the movements of employees in the field.

5. However, in the period between the 1975 accident and the second accident he had had many months off work because of his back injury. The precise period or periods during which he was off work on this account were never identified but I am satisfied he could have been off work for as many as six months because of it.

6. In evidence-in-chief the plaintiff said that immediately before the second accident his back condition caused him difficulty in sleeping and in bad weather his back and his leg would ache. The pain was in the lower back and occasionally in the foot. He was, he said, doing everything the doctor told him to do, taking it easy. He was working at light duties and felt, he said, "pretty good" although he still had the problem. "I still had", he said, "like some nights it would be really bad or days . . . I just could not put up with the pain".

7. I am satisfied that the plaintiff's condition between the 1975 accident and the second accident was such that he eventually, probably in June of 1977, became unable, because of pain, to operate a backhoe.

8. The extent of the plaintiff's disability at that stage may be gauged by answers given in cross-examination concerning his use of heroin to which he became addicted either at or shortly after the beginning of 1977. He agreed that he experimented with the drug because of the pain which he had in his back and which, at the beginning of 1977, was becoming too much for him. Initially he said that the pain which he experienced early in 1977 was not greater than it had been in the previous 12 months but having been on and off work all the time he became fed up with the pain and decided to take the drug. Almost immediately after, however, he agreed that when he began to use heroin in early 1977 the pain was not getting any better but was worse. He became addicted to the drug. He was asked a number of questions which, with their answers, I set out:-

"And you found that work, in 1977, extremely

difficult, did you not, because you could not
sit for long? --- Yes, sir.
And that was the work - that work which you
found difficulty with in 1977 was the easier
work of being a radio operator? --- Yes, sir.
And you told Mr Justice McGregor, did you
not, in 1978, that you had found that work
too hard for you? --- If I was not taking any
heroin, I could not take it.
You would not have been able to do it but for
the fact that you were taking heroin? ---
That is right."

The reference to McGregor J was a reference to proceedings before his Honour when the plaintiff appealed against a sentence which had been imposed upon him in the Court of Petty Sessions at Canberra where he pleaded guilty to a charge relating to possession of heroin and was sentenced on 2 August 1978 to 18 months imprisonment with hard labour, a non-parole period of 10 months being fixed. The appeal was heard in September 1978 with judgment being given on the 29th. In the result the plaintiff was imprisoned until 2 January 1979. He had been dismissed from his position with the Department of Housing and Construction almost immediately after his conviction.

9. The plaintiff said that fortunately for him he used not inject the heroin he used but either sniffed it or inhaled its fumes when it was heated. He gave evidence that when he was arrested in 1977 he continued to use the drug for a couple of weeks but then, having been counselled, he ceased to use it altogether and has never used it since. I saw no reason to doubt that evidence which was not challenged in cross-examination.

10. The available evidence shows, therefore, that from January 1978 to 8 August 1978, the day on which he seems to have been dismissed (Group Certificate part of Exhibit N) he was able to carry on his duties as a radio operator without the crutch of heroin. It should be noted that there is no precise evidence as to the length of time (if any) during which the plaintiff was off work in that period. Exhibit G suggests, although not conclusively, that he had no time off in the period due to the second accident.

11. In his report, Exhibit A, Dr Roebuck said that the plaintiff injured his lumbar spine when he fell off a machine on 14 November 1975. He referred to the evidence of a disc protusion, to the plaintiff's subsequent admittion to Canberra Hospital for traction and to his later rehabilitative physiotherapy. (I am satisfied that early in 1977 he suffered a recurrence of pain without any intervening trauma.) A myelogram was performed on 31 May 1977 but showed no positive result nor any surgically resectable disc protrusion. Dr Roebuck went on to say that the plaintiff reinjured his back on 8 (sic) August 1977 in a motor vehicle accident and required further physiotherapy. Dr Roebuck last saw the plaintiff, so far as appears from the evidence, on 7 March 1980. He described him then as almost completely recovered with minimal residual symptoms in relation to the lumbar disc lesion he had sustained. He had slight symptoms but no signs and was given a certificate for light work. Dr Roebuck concluded that the plaintiff had suffered a contusion of his inter-vertebral disc in the 1975 accident and an aggravation of this in the second accident. He considered that the plaintiff was recovering and would soon be left without any residual symptoms but that he was to be regarded as having a significant residual disability in the form of increased tendency to sustain recurrence of his symptoms should he injure his back further. The report makes no mention of any injury to the neck in either accident or of any injury to the plaintiff's arm.

12. I am satisfied on all the evidence that the plaintiff suffered an aggravation to his pre-existing lumbar spinal condition in the second accident. The problem in this case arises because of the difficulty of assessing the degree if any by which the second accident aggravated the plaintiff's existing incapacity.

13. As Dr Edwin Cassar, a consultant physician whom the plaintiff consulted on a number of occasions, said in evidence, "It was always a problem deciphering which accident caused which injury."

14. Dr Roebuck's failure to give evidence, for which no blame attaches to anybody, meant that he could not elaborate on his report or be cross-examined on it. Both elaboration and cross-examination would, no doubt, have been of great assistance. I do not know, for example, how many times Dr Roebuck saw the plaintiff. The only three things of which I can be satisfied from his report are, therefore,

(a) that the plaintiff suffered a contusion of his
inter-vertebral disc in the 1975 accident and an
aggravation in the second accident;
(b) that as at 7 March 1980 he had slight (or minimal
residual) symptoms in relation to that lesion but
was fit for light work; and
(c) that he had a significant residual disability in
the form of increased tendency to recurrence of
the symptoms should he injure his back further.

15. Dr Cassar was the principal medical witness. He first saw the plaintiff on 17 August 1981. Reporting on 2 September 1981, he said:-

"(The plaintiff) informed his employer and
was put on light duties for a prolonged
period, was assessed by Dr David Roebuck,
orthopaedic surgeon, and except for light
duties, he was largely disabled and in 1977
was laid off work completely and has been on
compensation payments from the Department of
Construction since 1977. He claims that
attempts at other jobs, whether of a
labouring type, of sedentary type any jobs
which require constant standing have failed
and cannot be tolerated because of low back
and left leg discomfort. He claims that in
1977 his back condition was aggravated in a
motor vehicle accident at which time he also
injured his neck. The vehicle in which he
was travelling apparently was struck from the
left-hand side . . . "

16. Describing the plaintiff's injuries and disabilities, Dr Cassar said:-

"THE INJURIES.
1.Lumbar spine trauma with left sided
lumbar nerve root irritation localised
to the L5 nerve root with documentation
of sensory deficit in that nerve root as
long ago as February 15th 1976, there
being no associated lumbar disc
protrusion evident on myelogram dated
May 31st 1977 Royal Canberra Hospital.

THE DISABILITIES
1.Partially disabled lumbar spine with
ability to undertake some light duties
between the time of accident in 1975 and
aggravation of his spine in a motor
vehicle accident of 1977. The latter
accident resulted in spinal injuries
involving cervical and dorsal spine and
this, together with his previous lumbar
spine injury was sufficient to fully
disable him and he was unable to resume
any form of labouring work as of that
time. Currently, his lumbar spine
condition is stable, is not
significantly disabling him, but it is
by no means cured in that he has sensory
deficit and other features of left sided
sciatica and in particular, left 5th
lumbar nerve root irritation which can
be easily aggravated by trauma to the
spine, or accidental lifting of heavy
objects.

Although his lumbar spine condition is
stable and not incapacitating, I feel he
is only fit to work in full-time
occupations which do not require
lifting, sitting for prolonged periods
or driving heavy machinery. I would
expect him to be fit for occupations
such as painting, and as a gas station
attendant. His major disability at this
stage relates to injuries and
disabilities in his separate accident of
1977, which has resulted in cervical and
dorsal spine disability. I do not feel
there is any other medical or surgical
treatment necessary other than having
(the plaintiff) undertake regular spinal
exercises which were shown to him . . ."

17. Dr Cassar reviewed the plaintiff's condition on 29 October 1981. He then described his disabilities as follows:-

"1. The lumbar spine is now able to sustain
light labouring work, clerical type
work, and occupations requiring
prolonged standing and walking. I would
not expect the spine to be able to
sustain prolonged driving or moderate to
heavy labouring. Furthermore, the
sensory impairment in the 5th lumbar
dermatome has largely resolved with
conservative treatment given since last
report, there being negative left
sciatic stretch test on this occasion,
and sensory impairment only to fine
touch in the 5th lumbar dermatome. I
would expect that recurrent aching in
the left sciatic nerve distribution will
recur from time to time for the
remainder of the patient's working life,
but unless there is significant
aggravation by further trauma to the
spine, or by heavy lifting, the
condition will now remain stable and
never result in need for surgical
decompression. Limitation to the above
working capabilities is expected to
allow useful working life to normal
retirement age.

2. The cervical disability remains stable
and minor, presenting as recurrent
aching in the lower cervical and dorsal
spine, helped by neck exercises and
muscle relaxants, being also stable and
never likely to require surgical
treatment nor ever likely to
incapacitate him from working in
occupations as described above. He had
a full range of neck movements on this
occasion and had no signs of cervical
nerve root irritation."

18. On 23 February 1982, having seen the plaintiff on that day, Dr Cassar described the plaintiff's lumbar spine disability as largely stable without serious relapse and said that the plaintiff had been able to sustain light labouring work and shop-attendant type duties but that any attempt at occupations requiring prolonged sitting with inability to exercise his legs and back had resulted in significant stiffness and pain in the left lumbar nerve root distribution. Examination showed a return of left sciatic nerve stretch test and sensory impairment in the distribution of the fifth lumbar nerve root on the left side, a relapse which had come about for no apparent reason about two weeks earlier. He described the cervical disability as remaining stable and minor with recurrent aching and stiffness in the lower and dorsal spine, helped by neck exercises and muscle relaxants. The disability in that part of the spine was also, he said, able to sustain light labouring work and clerical type occupations.

19. Dr Cassar saw the plaintiff again on 24 February 1983, 22 March 1983 and 9 June 1983. In his report of 10 June 1983 he stated that since December 1982 the plaintiff's injuries and disabilities has stabilised and that his incapacity had been stable since that time.

20. The plaintiff was seen on behalf of the defendant's solicitors by Dr Corry, a specialist in rehabilitation medicine, on 25 June 1982. On examination he found the plaintiff to have a full range of pain free movements in both cervical and lumbar spines with normal posture and gait. Neurological examination revealed no abnormality. In particular, reflex, sensory and motor function in his lower limbs appeared normal. He had slight tenderness over the upper border of the left sacro-iliac joint.

21. Dr Corry concluded that symptoms from the plaintiff's back had progressively improved and as at the date of examination appeared to be less than they were at the time of the second accident. Signs that indicated L5 nerve root irritation had disappeared. He thought the situation no worse, perhaps a little better, than at the time of the second accident. He concluded that any exacerbation of the back injury due to that accident had settled. He found no evidence of continuing disability with the neck or dorsal spine. He considered that as a result of the plaintiff's original injury he became fit for light sedentary work only, that his back remained at risk and that restriction on his working was still advisable.

22. Dr Corry examined the plaintiff again on 19 April 1983. The plaintiff then reported to him that his situation remained largely unaltered. He still had the problem of lower back and left leg pain. The low back pain was not present all the time; it came and went, was aggravated by change in weather, long car drives, any heavy lifting, long standing or sitting. On occasion the pain still spread to the left leg and at times, if he stood on the leg for prolonged periods, it felt swollen and uncomfortable and slightly unstable. He then had no continuing symptoms relating to his neck.

23. The report went on:-

"I was able to further clarify with him the
history of his disability following the motor
vehicle accident on 18.8.77. He said that at
that time he was working as a radio operator
and had done so for a few weeks. Following
the motor vehicle accident his symptoms
increased and he did have some immediate neck
discomfort which settled over a period of
weeks. With increasing back pain and pain in
his left leg he found the sitting involved in
the job as a radio operator increasingly
difficult and he was unable to break this
activity up. Consequently he resigned from
this position after several months. It was
following this that he had a period of
relative inactivity and mixed in bad company
and commenced taking drugs. After his
release from gaol he obtained a job as a
barman and held this position for about two
years. Mostly it was part time and he was
able to avoid the heavier aspects of the job,
however, with a change in boss he was put on
full time work and was asked to do all
aspects of the job. He found that he was
able to lift cartons of alcoholic liquor as
long as there were one or two of them, but if
he was asked to lift large numbers and move
them to another area this aggravated the back
pain. Consequently he resigned from this
job."

Examination disclosed no change from that described in the earlier report.

24. Dr Corry concluded:-

"(The plaintiff's) situation appears stable.
As outlined in my previous report I believe
that his history is consistent with a lumbar
disc lesion and L5 nerve root irritation
(sciatica) on the left side which has largely
settled. The problem now is that he has
limited lifting and handling tolerances and
limited sitting tolerances. He is fit,
however, for lighter work and some reasonable
examples are previously cited."

25. In a later report dated 22 May 1984 Dr Corry referred to the plaintiff's employment in a bakery,

"In November of 1983 . . . he obtained a job as
a light duties assistant in a bakery. He
lasted for two weeks. He was finally
sacked. He says that the job involved
cleaning trays, sweeping floors, making
coffee and so on. It involved a 3am start
and he was not always getting to work on time
and had occasional days off. He said that
the standing aggravated the back pain. He
also stated that he was said to be drunk one
day on the job but he denied this."

His evidence, given in chief, concerning his dismissal from that work was as follows:-

"And the upshot of that was you left, is that
right? - - - Well, I came into work late and I
was drunk and they sacked me."

26. In cross-examination the plaintiff conceded that he had given Dr Cassar the history recorded in the report of 2 September 1981. Late in December 1983 Dr Cassar became aware that the history he had earlier been given was not accurate and gave further consideration to the situation in the light of the more accurate history given him then.

27. He made a reappraisal of the situation. He accepted that the injury sustained in the 1975 accident had caused trauma to the lumbar spine with left sided lumbar nerve root irritation localised to the L5 nerve root with accompanying sensory deficit. He considered that as a result there was permanent partial disability to the lumbar spine as a direct consequence of that injury which allowed only light duties such as fuel pump operation and radio control work. Dr Cassar then said:-

"His condition at that time suggested that he
would be able to continue in such light
duties to normal retirement age, that surgery
was not necessary and that there was a
possible hope for improvement with time."

28. He considered that the second accident had given rise to aggravation of the lumbar nerve root disability, that it had caused a whiplash injury to the cervical spine and, to a degree, of the dorsal spine with irritation of the lower cervical nerve roots particularly at the C7 level. He considered there was trauma to the left median nerve where it enters the left carpal tunnel at the wrist level and stated that this was confirmed by nerve conduction studies undertaken on his behalf by Dr Danta on 5 July 1983.

29. Dr Cassar expressed the view in the report and in evidence that the second injury removed all hope of recovery from the consequences of the injury to the lumbar spine.

30. Reports by Dr Danta were tendered in evidence. In his report of 9 January 1984 he said:-

"There appeared to be some definite numbness
over the left thumb, index, and middle
fingers of the left hand, but no real
weakness. This would be quite in keeping
with the carpal tunnel syndrome demonstrated
by the neurophysiological tests. . . . His
symptoms, however, are not all that typical
of a carpal tunnel syndrome. He gets pain
and tingling largely over the dorsum of the
left hand. I gather that Dr Newcombe is
planning a decompression of the left carpal
tunnel syndrome. This is not related to the
accident, but may produce some improvement in
symptoms."

31. Dr Danta gave the following opinion of the plaintiff's condition:-

"I think the most disabling symptom is the
back ache and pain in the left leg. Although
I have not seen any x-rays, he has had these
done together with a radiculogram, and has
been seen by Dr Roebuck who did not consider
that surgery was indicated. For this reason
I take it that no gross abnormality was
found. One has to assume that he has
mechanical backache which came on for the
first time when he fell off the tractor, and
it then subsequently became aggravated in the
car accident in 1977. Such pain tends to get
worse with physical activity, and there may
be sensitivity in changes in the weather as
the patient describes, and improvement may
result with the passage of time and some
conservative measures such as certain
exercises and application of heat. Because
of the chronicity of the symptoms I think the
prognosis is poor, and the patient is almost
certainly incapacitated for any occupation
involving lifting or bending, and probably
also for one involving prolonged sitting or
walking. The prognosis is poor, and he is
certainly almost going to continue with this
complaint for many years to come.

The other aspect is the pain in the neck and
headache. This has to be attributed to the
whiplash injury sustained in the car accident
in 1977. This again tends to last for a long
time and treatment is not satisfactory but
symptoms tend in general to improve with time
and treatment is entirely symptomatic. Much
of the pain is due to muscle contraction and
some people are helped by the use of
anti-depressants and practising muscle
relaxation exercises. Because of the number
of years that have now elapsed with these
symptoms, I think that he is likely to
continue with those for a long period of
time.

Certain light jobs might be possible for him
to carry out, but in general one has to say
that he is incapacitated to the degree that
very many physical activities increase the
pain both in the neck and also in the back
and left leg. I very much doubt if any fresh
therapeutic intervention will be productive."

32. The plaintiff's credibility was attacked. I found him in many respects to be an unsatisfactory witness but I am prepared to accept the opinion expressed by Dr Cassar that he was not malingering. The worst that was said of him by any medical witness was by Dr Andrews who said that he was perfectly willing to describe a person as a malingerer if he thought that to be the case. Of the plaintiff he said merely that "I would go as far to say that I think at times he exaggerates". It should be noted that Dr Andrews was not satisfied that there were objective clinical signs for the condition of which the plaintiff complains but his general attitude to the situation is concisely set out in the answer to a question given in cross-examination. He was asked:-

"Does one correctly understand that when you
say there is no evidence of a significant
disc lesion, for example, you are not saying
there is nothing to suggest that he does not
have one at all?

He replied:-

No, no, the word "significant" is important.
We know that a lot of people have damaged
discs without symptoms and you have to
interpret a disc lesion on the basis of what
symptoms, physical findings or abnormality it
reveals on various investigations."

33. Although, as I have said, I considered the plaintiff to be in many ways an unsatisfactory witness, I did accept the evidence given by his wife that he had suffered a real aggravation of his pre-existing condition as a result of the second accident.

34. I have taken into account the film which was shown during the course of the hearing and accept that the plaintiff is, as he admitted, capable of doing quite heavy work for short periods at the risk, however, of suffering considerable pain thereafter. An episode on or about 18 November 1982 was the subject of much cross-examination but the account of that episode given by the plaintiff's wife and by the plaintiff himself rings true and I accept it. At the same time, I have little doubt that he became aware that he was under surveillance and that he had been or may well have been filmed on that day.

35. After considering all the evidence I am satisfied of the following:-

(a) By 18 August 1977 the plaintiff was suffering
permanent partial disability of the lumbar spine
as a result of which he was capable of doing only
light work such as fuel operation and radio
control work, work which did not require prolonged
standing, sitting, bending or the lifting of heavy
weights.
(b) That the plaintiff used heroin to lessen the
effects of the pain induced by the first accident
until late 1977 and was thereafter able to carry
out radio control work until he was dismissed on 8
August 1978 as a result of his conviction on a
charge concerned with heroin.
(c) That there is no satisfactory evidence of the time
the plaintiff lost from work following the second
accident until he was dismissed.
(d) That the plaintiff's attitude towards work in
general was, to say the least, casual and must be
taken as an integral part of his capacity to work.
(e) That the plaintiff has made genuine attempts to
work since the second accident but that, not
surprisingly, pressure has been placed upon him to
do heavier work than he is capable of doing in the
jobs he has obtained.
(f) That his evidence as to the difference which the
second accident made to his enjoyment of life is
generally acceptable.

36. The position therefore is that I am not satisfied that he was unable to cope as at 8 August 1978 with the duties on which to that point he had been engaged. He was, of course, at risk of being dealt with under the criminal law at any time if detected in the commission of a heroin related offence. Logically, it seems to me, that if a defendant is to take a plaintiff as he finds him he must take a plaintiff who is engaged in a criminal activity as one likely to be discharged from his employment when detected and of being therefore thrown onto the labour market with all his disabilities. I accept the evidence as to the difficulty he is likely to continue to have in obtaining work.

37. It follows, therefore, in my opinion, that the plaintiff is entitled to recover damages for economic incapacity in respect of any disability aggravated by the second accident provided that the disability from which he had previously suffered would not in any event prevent him from obtaining suitable work.

38. I accept Dr Cassar's opinion that the plaintiff would probably have recovered substantially from the effects of his first injury although not to the point where he would have been able to engage again in heavy work. I think that probable recovery would have freed him to engage in a much wider range of lighter duties than he is presently able to do. I accept his evidence that the work on which he has been engaged since 1979 has in the end in each case proved beyond him. I see no reason to suspect that, had he suffered only the one injury (in the 1975 accident) and been dismissed from his departmental employment, he would not have been able to engage in the wider range of occupations referred to above. He appears to have a reasonable faculty for obtaining work and impressed as a person with a pleasant personality.

39. I think the proper approach to his loss of earning capacity is to look to February 1979, after he was released from prison, as the commencing date. I am not satisfied, on the evidence, that he suffered any loss of wages between the second accident and 8 August 1978. I think it likely that he did but there is simply no satisfactory evidence upon which it would be right to attribute any such loss to the defendant.

40. Using Exhibits G and H, I am satisfied that the plaintiff would, but for his incapacity, have been able to earn wages of the order set out in Exhibit H and that therefore, allowing for the National Wage Case increases since the hearing he would now be able, if not incapacitated, to earn approximately $350 per week gross or approximately $295 per week nett after taxation. On those bases his economic loss to date would be of the order of $95,000 and his future economic loss from today of the order of $267,000. This would give a total economic loss of $362,000.

41. That figure must, however, be very heavily discounted.

42. In discounting I take into account the following factors:-

(a) the continuing effect of the injuries sustained in
the 1975 accident;
(b) the plaintiff's general attitude towards
employment and life;
(c) that to a limited degree he is capable of finding
work within his capacity subject, however, to the
restrictions to which I have earlier adverted;
(d) that generally his position is more probably than
not one where he is likely to engage in periodic
employment although I expect that he will do
better in the future than he has in the past;
(e) the vicissitudes of life which in his case I will
accept are more likely to be unfavourable than
favourable;
(f) the evidence generally.

43. Taking into account all these matters I think the proper sum to award in respect of general damages for economic loss including past economic loss is $120,000.

44. For pain and suffering and loss of amenities of life I think the proper amount to award is $25,000. This has regard to the earlier injury which did not, in my opinion, grossly restrict his capacity for enjoyment of life.

45. Out-of-pocket expenses are agreed at $200.50. I allow $750 for future pharmaceutical expenses. I allow nothing on account of the treatment of the carpal tunnel syndrome, preferring to accept the statement of Dr Danta, on whose findings Dr Cassar seems to have relied, that the syndrome was not related to the accident. I accept, however, that some of the symptoms exhibited in relation to the left hand were due to the neck injury sustained in the second accident.

46. There will be judgment for the plaintiff for $146,000.00.