Warren William Gordon Griffiths v Australian Postal Commission [1987] ACTSC 30 (16 April 1987)

SUPREME COURT OF THE ACT

WARREN WILLIAM GORDON GRIFFITHS v. AUSTRALIAN POSTAL COMMISSION
S.C. No. 1860 of 1980
Assessment of Damages

COURT

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

CATCHWORDS

Assessment of Damages - no new question of principle involved.

HEARING

CANBERRA
16:4:1987

ORDER

There be judgment for the plaintiff in the sum of $541,132.59.

The defendant pay the plaintiff's costs of and incidental to the action, those costs to be taxed.

DECISION

This is an assessment of damages for injuries sustained by the plaintiff as a result of an accident which took place on 8 January 1979.

2. At about 11.15 a.m. on that day the plaintiff was driving his motor vehicle in Barrier Street intending to turn left into Ipswich Street, Fyshwick. He faced a "Give Way" sign. He stopped with the first gear of the car engaged and his foot on the brake. He felt a jolt and had instant pain on the right side of the neck. He was wearing a seatbelt. His vehicle had no headrest. He heard a "sort of crack" in his neck. His car had stalled as a result of the impact. He got out. His neck was very painful. He held it, noting that the tighter he held it the better it felt.

3. After an exchange of the appropriate details with the driver of the other vehicle he went directly to the Woden Valley Police Station and reported the accident. That evening he visited his fiancee but went home early. He found he could not sleep because of pain from the neck and headache. At about 11 p.m. he went to the Woden Valley Hospital Casualty Department where he consulted a doctor who prescribed some phenabarbitone. He went home to bed. The next day the muscles in his neck and around the top of his shoulders were stiff. He noted pain in the lumbar region but it subsided. By the following day he appeared to have recovered.

4. Sometime between January and July 1979 he sought the services of a doctor because of intolerable pain in his neck and shoulder blade, pain that woke him up. He had earlier noted "cramping" pains in the neck and up under the scalp. I will refer to this period in more detail later.

5. Subsequently the lumbar pain would cause him to limp on occasion. By the time he first saw Dr Ingram, his general practitioner, on 4 October 1979, it had become a "very intermittent" problem, happening not often but enough to be a nuisance when it did occur. Dr Ingram prescribed the drug Brufen and on the second consultation referred the plaintiff for lumbar and thoracic spine x-rays. In March 1980 he referred the plaintiff to Dr Robson, a neurosurgeon, who recommended surgery. The plaintiff did not immediately accept that recommendation and consulted Dr Ingram again. Dr Ingram then referred him to Mr Crock, a Melbourne orthopaedic surgeon specialising in injuries and disorders of the spine who has since 1961 administered an orthopaedic and traumatic surgical unit in St Vincents Hospital, performing about 225 operations a year on the spine.

6. The plaintiff consulted Mr Crock on 16 July 1980. Between 3 March and 16 July 1980 he had suffered a lot of constant neck pain and intermittent lumbar spine pain. Late in 1979 or early in 1980 he had begun to take a substance called Codral Forte which Dr Ingram had prescribed, taking anything up to eight tablets a day. During the course of his work which involved driving, standing and a lot of office time he often became very tired and found that when he was tired the pain seemed to increase. He had difficulty sleeping.

7. Mr Crock recommended conservative treatment including a course of physiotherapy which the plaintiff underwent at the hands of Mrs Elizabeth Lear between July and late October or early November. Thirteen treatments involving deep heat and massage were administered. During that period his neck was persistently extremely painful and pain in the lumbar spine was becoming more frequent. He continued to take Codral Forte which dulled the pain but occasionally would not relieve it. In November 1980 he entered St Vincents Private Hospital in the care of Mr Crock for discography. The procedure caused him pain. He was in hospital for about 24 hours.

8. He was readmitted to the hospital in February 1981 for about 10 days during which he had bed rest and underwent cervical traction which did not relieve his symptoms. On 17 February 1981 he had a further discography and was readmitted to St Vincents Hospital on 29 March 1981 and underwent fusion surgery at two levels of the cervical spine at the hands of Mr Crock on 30 March 1981. During the first several days after the operation he did not feel much pain because he was "well drugged" but after the first week the pain became quite intolerable and a drug regimen was instituted to assist in containing the pain. He was discharged from hospital on 16 April 1981 still in a good deal of pain and was flown home by air ambulance. He was taken by ambulance from the Canberra airport to his home. He had been instructed by Mr Crock to stay housebound for at least a month, after which he might commence walking, but not to drive a car for three months.

9. Between 24 December 1980 and the operation on 30 March 1981 he did some work for his employer. After the operation he was off work until 2 February 1982. Some several weeks after the operation he noted that he was getting persistent headaches at the base of the skull every day for periods of up to two or three hours. His lumbar condition was a problem. On two occasions he lost control of his legs and fell. By the end of 1981 his neck condition was getting worse. He had trouble sleeping and was taking Mogadon sleeping tablets first prescribed for him by Dr Ingram. He continued to take Codral Forte although at one stage another drug was substituted for it. Between June 1981 and February or March 1982 Mr Crock performed four manipulations on the plaintiff under general anaesthetic. In the long run they did not help although he obtained some relief for about a week after the first one.

10. When the plaintiff returned to work on 2 February 1982 he was still in a lot of pain. His problem had not been rectified and he thought he was slightly worse off at that point than he had been before the operation. He was still getting headaches and the pain in the lumbar spine was becoming more frequent, occurring daily although only momentarily, but he could not take weight on his legs during the pain. He was taking pain killing drugs and sleep inducing drugs as well as an anti-inflammatory drug called Butozolidin. In about February 1982 he consulted Dr Hughes, a Urologist, concerning bladder difficulties he was having. He was experiencing pain, from time to time great pain, at work. On 31 May 1982 he resigned from Jennings Industries Limited. Before resigning he consulted Mr Crock. He felt he was just unable to keep going.

11. In April 1982, he had had a myelogram. He was off work for 24 hours but for days after it he found great difficulty in moving. He was still having difficulty in the lumbar spinal area at about waist level and about two inches to the right of the midline. In 1982 he commenced to have a degree of urinary incontinance. He suffered from constipation which had begun in 1980 when he started to take the Codral Forte and from the onset of haemorrhoids. The constipation eventually ceased although the urinary problem persists. He consulted many doctors about his various conditions. He also consulted Mrs Tapsell, an occupational therapist on reference from Dr Corry, a rehabilitation specialist, but, although he saw her three times he did not find her to be of any assistance. He began physiotherapy under Mrs Daniell in 1983, seeing her on a daily basis. He described an episode in language which illuminates his condition and indicates to some degree the extent of his psychological state:-

"I woke at approximately 5 o'clock and had

severe pain, severe headache, severe pain
inter-scapular, in between the shoulder
blades, radiating up the side of the neck,
both sides of the neck, both sides of the
neck and into the base of the skull and
gradually over to the back of the eye. I
took what is equivalent to 990 milligrams of
codeine and 1500 milligrams of paracetamol
and 400 milligrams of Brufen and the pain was
just untouched. I saw Mrs Daniell as early
as possible and she spent some 40 or so
minutes in manual traction, scapular
stretching, and I walked out of the
physiotherapy clinic with just the scar of a
headache. In other words she cured the
headache."

He modified his answer concerning the number of times on which he consulted Mrs Daniell to say that he saw her between six and seven days a week. If he was unable to see her he needed to consume more analgesic drugs and was unable to get as many of the little things he wanted to do done. In dealing with the question of his depression he said that he supposed that it started back in 1981. He consulted Dr Truman, a psychiatrist, on reference from his general practitioner, by now, Dr Dawson. At the time of the hearing he had consulted Dr Truman six times and had received considerable benefit from the medication given him by Dr Truman, medication which controlled his rapid change of mood, tendency to throw things or drop things and vent his frustration on anything.

12. He considers there are stresses and strains in his marriage, in particular, he considers that his sexual relationship with his wife has deteriorated.

13. In 1983 he began a real estate salesman's course at the Canberra College of Technical and Further Education. He completed that course in 1983. He has, as well, undertaken a course for a diploma in valuation beginning in 1973. He does not, however, see himself working as a valuer for a number of reasons. First he considers himself unreliable so far as his health is concerned. Secondly he finds it difficult to keep his mind on the job and makes errors. Thirdly practical experience would require him to value rural properties, hotels and high rise buildings as well as ordinary houses. Such valuations require careful and thorough inspection and in some instances there can be many hours of research necessary. Having done work closely akin to that of a real estate salesman with Jennings Industries Limited, he said that he did not think he could cope with work as a real estate salesman for the same reasons that caused him to leave his employment with Jennings Industries Limited.

14. Gardening activities cause him pain. He has a man come to mow the lawn once or twice a week for which he pays $8-$15. He also employs somebody to clean and polish his car. Walking (and running) and sitting for long periods cause him difficulty as does driving for any distance. Driving can cause so much pain that he cannot be really alert. He has run once since the accident, a distance of 50 yards, and as a consequence spent days in bed. He swims in a heated pool at Mrs Daniell's home in Aranda but is unable to swim in an unheated pool. He did not swim before his condition deteriorated. He used engage in ten pin bowling. It is now beyond him because of consequent pain. Carrying a brief case of books causes him difficulty.

15. The plaintiff described himself as not having come to terms with his condition.

16. The plaintiff left school when aged 15 and subsequently obtained his Intermediate Certificate around 1969. He first got a job as a junior trainee with Waltons Stores in Brisbane selling, restocking and cutting lino and working in other departments of that store. He was there for about a year or 18 months and subsequently worked for a company called Coupon Furniture Company in Brisbane where he started as a salesman to sell dining room furniture. He worked for David Jones Limited in their furniture department for nearly three years and was eventually accepted for their senior executive training programme. After that programme he was appointed to the position of group section head and became eventually a floor manager for about 12 months. Meantime he continued study at night and obtained a diploma in work study. He also obtained a diploma in media studies in December 1972. For a time he pursued the idea of becoming a radio announcer but eventually abandoned it. He then joined Festival Stores Pty. Limited where he was responsible for buying merchandising and general running of a department such as the furniture department. He then had further experience in the furniture trade.

17. He had last worked before the accident on 8 November 1978 for a company called Gypsum Investments Pty. Ltd. After the accident, on 27 January 1979 he married and on 5 March 1979 began to work for a company called Downards Moving and Storage. He resigned from that employment on 14 July 1979 and on 24 September 1979 began to work for Jennings Industries Limited.

18. In about April or May following the accident he noted the onset of cramping pains in his neck extending up into the scalp. Then, one night, apparently in May 1979, he was awakened by what he found to be somewhat excruciating intolerable pain at both sides of the neck and in the shoulder blade area of the back. His wife called a doctor who administered an injection following which he slept for quite a long while. He took the next day off work as a result and went back to work on the following day when he was quite all right. From time to time, however, the cramping pains persisted and gradually became more frequent. He consulted a chiropractor without obtaining relief. In July the onset of pain was becoming more frequent. The plaintiff was using aspirin and panadeine and was just putting up with the pain. From time to time he had difficulty in sleeping.

19. When he joined Jennings Industries Limited in September he was in pain. He took aspirin for it and used a hot water bottle at home. He noted some limitation of movement sometimes and that it was causing driving to become an arduous task. He noted that when he turned his head muscle cramp would cause his neck to turn back. This was an intermittent phenomenon. By October 1979 his condition had become unbearable and his wife insisted then that he should mention it to Dr Ingram, his family doctor whom he first saw, as indicated above, on 4 October 1979.

20. No account of the plaintiff's career would be complete without reference to two particular ventures. In the one he was employed by Springfield Distributors Pty. Ltd. He described his activities:-

"I was invited to sell in the wholesale area
of wines, keeping it as briefly as I can, I
examined the merchandise, I got existing
clients to buy more, I found new clients, new
outlets, I introduced new goods to be sold
through the distributorship such as bar
implements, glasses, etc. and I also got many
new wines, good quality wines introduced to
the distributorship. In fact I was referred
to as the then sales manager."

21. He said that he increased the monthly sales figures from something of the order of $400 a week to not less than $20,000 and possibly as much as $30,000 a month. His employer fixed the figure at in excess of $35,000 per month. He stopped working for the company on 15 September 1976. While he was working for it his total remuneration averaged over $400 a week net after tax exclusive of the value, probably between $10 and $20 per week, of petrol and oil for private use. He worked for an average of between 10 and 12 hours per day. He enjoyed the work. On leaving Springfield Distributors Pty. Ltd. on 15 September 1976 he and a Mr Bennett, a director of Springfield Distributors Pty. Ltd. who had asked the plaintiff to join that company, opened a bedding specialist store making use of a shelf company. Mr Bennett provided the initial capital, the plaintiff agreeing to repay him 50% of his investment in the company. The plaintiff succeeded in doing this within the first six months. Mr Bennett had meantime left Springfield Distributors Pty. Ltd. Both went to Sydney to see manufacturers. Thereafter Mr Bennett went overseas leaving the plaintiff to do everything necessary to open the business including the establishment of accounting systems. The store opened in late October 1976. In January 1977 turnover amounted to $49,500 for the month. The plaintiff was receiving salary of $10,400 a year. Mr Bennett took no part in the running of the business. In March 1977 a fire destroyed some $30,000 worth of bedding then being held in a warehouse in Queanbeyan. A loss of $6,000 after insurance payment was made. In October 1977 the same warehouse was burnt to the ground. Again a considerable loss was sustained because of under-insurance. Some time later a fire took place in the block of shops where the bedding business was being carried on. Smoke damage caused heavy loss. In June 1977 Mr Bennett and the plaintiff had agreed to open a store in Newcastle. It was opened in November 1977 but in January 1978 was flooded out. A loss in excess of $10,000 was sustained. Eventually those losses and errors of judgment as to the profitability of the Newcastle business led to the company's being unable to pay its debts and it went into liquidation. Before that, however, from 1 July 1977 to 30 June 1978 the plaintiff's salary was increased to $18,200 a year but he was also given a company car and an entertainment expenses account. The company paid for the fuel he used privately. In January 1978 he was given as a bonus the cost of his airfares to New Zealand. Shown a group certificate for the year ended 30 June 1978 he agreed that it showed a salary of $13,278.88 and an allowance of $1,225. He was unable to explain the discrepancy between the group certificate and his salary.

22. When the company went into liquidation he continued to work for it for a time finishing about the beginning of December 1978. He then took a rest before his planned marriage.

23. While he was on his honeymoon he was offered a job with Downards Moving and Storage and worked for that company from 5 March 1979 until 14 July 1979 in a managerial capacity. He painted a picture of his work with that company indicating a capacity for energetic administration. Unfortunately he had a difference with the then general manager and resigned. He had begun on a salary of $15,000 per annum plus the use of a company car and an entertainment expenses allowance.

24. On 24 September 1979 he began to work for Jennings Industries Limited and after a brief period of training he began to earn income, in November 1979. He enjoyed the work for Jennings but by 24 December 1980 the pain had deteriorated to the point where he did very little work but in the fifteen months to that date he worked long hours and found this to cause him physical problems. His capacity began to decline in June 1980. The company then offered him a job in Queensland, a job which he rejected because he knew that he would probably be having surgery. After he returned to work in February 1982 up until his resignation on 31 May 1982 he did very little work, what he described as the bare minimum, not intentionally, but as it turned out. Before that, however, for the year ended 30 June 1980 he won a trip to Hobart for his wife and himself, an award for being salesman of the year in his division.

25. Finally, in his evidence in chief, the plaintiff said that his wife did not want the couple to have children because of his health problem, his present condition being contrasted with his pre-accident temperament which he described as being rather happy with a resilient disposition, able to be happy in the worst conditions. He also gave evidence of the side effects of some of the drugs he was taking.

26. In cross-examination the plaintiff admitted that he had been convicted, on his plea of guilty, of arson with intent to defraud. He was also cross-examined concerning an alleged attendance upon a chiropractor, Mr Frank Wyss, on 20 February 1978 when he was said to have complained of a neck condition and a low back condition. I am satisfied that he did in fact attend upon Mr Wyss on that date.

27. I turn to the medical evidence in more detail.

28. Mr Crock gave evidence of the surgery he performed on the plaintiff. His operation report contained the following sentence:-

"Both discs were degenerate in appearance,
particularly at 3/4, where the vertebral end
plate was avulsed completely from the
vertebral bodies."

He elaborated on that in evidence by saying that that referred to the actual appearance of the disc at the time of operation and it indicated that the normal attachment of the invertebral disc to the vertebral bodies at that level had been disturbed. He considered that that particular change was likely to be induced by high speed trauma inflicted on the neck and his interpretation was that it was consistent with the diagnosis of a disc injury following a rear-end collision. Such a condition may occur in some degenerative diseases where a pathological change sometimes occurs in the vertebral end plate itself and as a consequence may be separated from the vertebral body. However, that is a readily recognizable condition on plain x-ray and there was no evidence of that sort of degeneration present.

29. He was asked about the disc at the C5-C6 level on which he did not operate and said that the plaintiff had never done well after surgery and in attempting to explain the ongoing symptoms he was forced to the view that there was a problem at the C5-C6 disc space, vertebral instability appearing at that level on recent motion films of the neck. Asked what he thought was the most likely cause of that condition he said that it was almost certainly part and parcel of the overall injury pattern that was inflicted on the neck at the time of the rear-end collision.

30. He was asked about the history of pain, the apparent resolution of symptoms almost immediately after the accident and their recurrence later on in the year, 1979. He thought it was difficult to interpret and later agreed in cross-examination that such a temporary resolution of pain was unusual, indeed highly unusual, but not inconsistent with the history given by the plaintiff and the condition found upon operation.

31. He was asked about the complaints of lumbar pain and described the mechanics of injury to the lumbar region following a collision such as that involved in this case. It was clear from that description that the complaints made by the plaintiff were consistent with his receipt in the collision of injury to the lumbar spine.

32. It was upon his advice that the plaintiff returned to Canberra by air ambulance after surgery. He explained his reasons for that recommendation, reasons which seem to me to be reasonable and acceptable. He also said that the average time for return to some sort of work after extensive cervical fusion would be nine to twelve months, sometimes longer.

33. He then gave what he considered to be the reason for the pain in the neck from which the plaintiff suffered. He thought the plaintiff's recovery was on the slow side and in the post-operative period it was noticed that he had keloid scars and that his clinical course was characterised by a very troublesome persistent neck pain and neck stiffness. These were reactions which he thought consistent with an adverse immunological reaction to surgical trauma, not a common phenomenon but troublesome when it arises. He thought that lay partly behind the explanation for the plaintiff's recurrent and disabling symptoms of neck pain and headache after the surgery. He said that some degree of neck pain and occipital headache of the type involved was quite common for upwards of a year or eighteen months. He said the interpretation for the less serious causes of that was that it was simply due to some change in the adjacent joints in the roof of the cervical canal related to the fused segment of the spine. If a neck manipulation under anaesthesia were undertaken at about nine to twelve months or eighteen months after operation such problems were usually resolved, the neck motion improving and the headaches disappearing quite dramatically. He was unable to solve the plaintiff's problem and considered that there must also be an additional factor operating. This, as indicated earlier, he thought to be a problem in the C5-6 disc space. He said the keloid scars themselves were of no significance except as indicating that the plaintiff was a person of a type whose makeup was such that he might develop the adverse reaction to surgical trauma. He had had experience of a small group of patients with a similar condition.

34. He described the plaintiff as rather obsessive. He took account of his symptoms in great detail. This he thought to be part and parcel of his personality but did not regard it as necessarily being conscious exaggeration. That had never been his impression. He had no doubt that the plaintiff suffered pain, that his appearance when he was in pain was typical of somebody suffering it and he thought that he had become prematurely old over the period since he had known him, all consistent with someone who had had a long history of chronic pain. He thought that the depression from which the plaintiff suffers was quite consistent with the injury which he had sustained.

35. Asked about the physiotherapy treatment which the plaintiff was receiving he said that it was unusual for physiotherapy to be required on such a protracted basis but considered that he was dealing with an unusual problem and that the plaintiff's behaviour was not inconsistent with that of quite a number of his patients who had been in similar difficult situations after spinal surgery. He thought that the requirement for physiotherapy would progressively lessen over the next eighteen months or two years.

36. He considered it was consistent with the plaintiff's condition that there should be a deterioration in his sexual life, that he would be able to dig in the garden but would suffer for it afterward and that he could not do mechanical work or service his vehicle for protracted periods. He would accept that mowing a lawn would cause him difficulty, that he would have difficulty in running and that he would be unable to tolerate driving a car for a long period because of the motion of head and neck and that the sitting posture was not particularly good for anybody with a chronic spinal problem and was likely to produce aggravation. He thought that the plaintiff would probably settle down over the course of the next few years to a point where he might be able to undertake at least part-time light work. He thought he would turn out to be an unsatisfactory employee for most businesses and would be much better off doing something at his own pace.

37. Asked whether he would be able to do work in the areas where he had worked in the past, he thought him incapable of working at the present time. He thought the future unpredictable but that in the short term, if he could work at all, it would be at his own pace.

38. Ordinarily he would not have hesitated to carry out an anterior cervical fusion at the C5-6 level. What causes him to hesitate is the plaintiff's adverse reaction to such surgery. Additionally, the very fact that he would have had a three-segment cervical spinal fusion would put stresses on the discs above and below the fused segment for the rest of his life. Conservative management was, therefore, the more desirable. If he did undergo surgery he would be off work for about eighteen months. He would expect the plaintiff to go through a phase of mental depression as well and he had a number of patients who had simply not returned to work after subsequent surgery.

39. In cross-examination he considered the frequent physiotherapy reasonable for reduction of pain and as reducing the ingestion of analgesics which, it will be remembered, had deleterious side effects.

40. Mr Crock was cross-examined concerning the work which he understood the plaintiff to have done for A. V. Jennings Limited. He did not think him capable of returning to that sort of activity. He limited his capacity for paper work to maybe two hours per eight hour day because that work would involve movements of the head and neck and he did not think the plaintiff was capable of that.

41. He described the plaintiff's practical problem in the following terms:-

"A practical problem emerges from the fact
that he is going to the physiotherapist
still, six days a week, which to me indicates
that he requires relief for his symptoms.
His physical examination has consistently
demonstrated marked and painful restriction
of neck motion. He has got this
post-operative keloid scar formation which
goes with the general syndrome that I have
been describing. Now I have made the point
that it is not common, but of the patients I
have had who have developed it - and I think
of one who is about the same age as this
patient - . . . their outlook is actually very
bad. Their tolerance of physical activity,
and for ordinary gainful employment, is
extremely limited. . . . I think you are left
with a practical problem of this sort of
patient being very intolerant of physical
activity of any sort. Even taking his motor
car to work, for example, may stir him up
and, as I say, we are talking about a small
group of patients. I wish I had the solution
to their problems, but in my experience they
are very very difficult to handle."

42. He said as to the immunological difficulty that it was due to an auto-immune reaction in the damaged cells along the line of the incision. He said:-

"We are tending to relate it these days to
the behaviour of some of these patients who
have odd reactions after operative
interference."

43. Asked about the number of physiotherapy treatments which the plaintiff was undergoing he said that he would have advised three or four treatments a week as fairly common. He considered six days a week to be uncommon.

44. During the course of the hearing on one occasion the plaintiff turned his head quite suddenly without apparent difficulty. Mr Crock thought that he might occasionally make such quick movements but would not expect him to do it on a regular basis.

45. It came as no surprise when the plaintiff proved to have had some background in theatricals. Because of the extent of the claim he makes and what seemed to Mr Crock to be an obsessive concern about his symptoms, the same concern presenting itself to me, the plaintiff's credibility is of great importance. I am satisfied that basically he is telling the truth. I am satisfied, too, that there is some degree of exaggeration, a concomitant, as it were, of his personality, in his presentation of his symptoms in evidence. Nevertheless, I am satisfied that he has been in the past and continues to be genuinely disabled. Assessment of the extent of that disablement is difficult since one is naturally reluctant to accept that so young a man who has undergone technically successful surgery is permanently disabled.

46. It seems to me, however, that the evidence, which I found acceptable after consideration of the demeanour of the witnesses concerned and of its inherent probability and consistency, leads to the conclusion that on the balance of probabilities, subject to one limitation, if that be the correct word, to which I will advert later, the plaintiff is permanently disabled or, to put it in another way, unemployable.

47. Dr Corry reached the conclusion that the plaintiff had failed to benefit from treatment and rehabilitation and had a quite severe disability. He raised the possibility of further surgery with the plaintiff but believed that there would be high risk and that this could lead to further deterioration. Although aware of the difficulties of urinary incontinence, indigestion, gastric erosions causing bleeding, constipation and depression from which the plaintiff suffered, he considered that his main problem was neck pain.

48. I am satisfied by Dr Hillman's evidence that the plaintiff continues to have constipation with probable anal bleeding secondary to ingestion of codeine taken for pain and that he had gastro-duodenal erosions with melaena secondary to non-steroidal anti-inflammatory drugs.

49. I accepted Dr Hillman's evidence that the gastro-intestinal problems cleared up but that the plaintiff should continue on long-term treatment as a prophylaxis against a reoccurrence of the problem.

50. I accepted Dr Newcombe's evidence and find that it helps to establish, more probably than not, that the condition from which the plaintiff suffers is due to the January 1979 accident. This conclusion tends to be supported by the evidence of Dr Robson which I also accepted.

51. I accepted Dr Truman's evidence as a result of which I am satisfied that the plaintiff suffered a depression reactive to the pain and to a large extent controlled by a drug, Tofranil, and that subject to his other limitations the continuing depressive state would not of itself incapacitate the plaintiff from employment.

52. I accepted Dr Hughes' evidence that the urinary frequency and incontinence from which the plaintiff suffers is likely to be permanent. 2t is not a severe condition but can be embarrassing. I am satisfied that, more probably than not, it was relevantly a result of the accident.

53. I accepted Mrs Daniell's evidence concerning the plaintiff's physiotherapy treatment. It helped me to reach the conclusion that the plaintiff was genuinely suffering from pain. So, too, did the evidence of his wife which I accepted and that of Mr Bennett which I also accepted.

54. Dr Dawson gave evidence concerning the many occasions upon which he was consulted by the plaintiff so that he might have medications prescribed.

55. Dr Cassar, a specialist physician, was called on behalf of the defendant. He did not take nearly so serious a view of the plaintiff's condition as did his treating doctors. In February 1983 he took the view that the plaintiff had a permanently partially disabled neck but considered that in spite of that he should be able to attend to full-time employment as long as it did not require lifting or constant stooping over a desk. He found no loss of function in the left shoulder and arm and thought that, accordingly, full-time non-labouring work including the driving of vehicles for short distances such as around town would be possible. He thought that there was nothing to suggest that additional treatment, including surgery, was necessary or likely to be necessary in the future. He found permanent partial and minor disability indicating lower lumbar nerve root irritation in the absence of sciatic stretch signs. He concluded that it had been unnecessary for the plaintiff to have been treated in Melbourne by Mr Crock rather than in Canberra by those practising in similar specialties here. He was not prepared to accept Mr Crock's assessment that it might be unwise further to surgically explore the plaintiff's neck.

56. On all the evidence, I think that the views of the plaintiff's treating doctors are to be preferred to those of Dr Cassar. I note that he made reference to reports by Dr Chandran, a neurosurgeon, and Dr Stubbs, an orthopaedic surgeon, which had been made available to him by the defendant's solicitors. These doctors were not called.

57. Some importance was sought to be attached to the evidence of Mr Wyss. Mr Wyss' recollection of the attendance upon him by the plaintiff in 1978 which I am satisfied took place was vague and unhelpful. A record card tendered in evidence showed his "present ailment" to be neck. An additional comment, two lines further down and made in Mr Wyss' handwriting, was "lower lumbar - sciatica". The treatment card makes it plain that the plaintiff consulted Mr Wyss on 20 February 1978 and next on 27 June 1979. It was certainly not clear from the card whether the plaintiff complained of both conditions on the first visit. Mr Wyss had no recollection of either visit and I am not prepared to find on that scanty evidence that the plaintiff's condition was due to something other than the accident of January 1979.

58. I turn to the question of damages.

59. So far as past economic loss is concerned, I commence with the plaintiff's admission into St Vincent's Hospital for surgery. I accept the evidence of Mr Simmons concerning average earnings of salesmen employed by Jennings Industries Limited, noting that for the year ended 30 June 1981 in respect of which no average could be given, the plaintiff earned, apart from allowances, $15,750, a figure which, allowing for progression, seems to have accorded pretty well with what must have been the average earnings for that year. I make appropriate allowances in favour of the defendant in respect of that proportion of the plaintiff's car allowance and the supply to him of petrol and oil which were reasonably attributable to his work and for income tax which should have been payable for each of the several years to date and for that which would be payable in the year ended 30 June 1988 at the rate already fixed by the Income Tax Rates Act 1986. I have allowed for the increases of 3.8%, 2.3% and $10 per week in the National Wage Cases of 4 November 1985, 1 July 1986 and 10 March 1987 less tax payable at the appropriate rate.

60. For economic loss to date I have calculated a raw nett figure after tax of $109,238. It may be that unfavourable contingencies ought be taken into account in respect of that sum but, equally, this is a clear case where contingencies may be assessed as favourable. Regard must be had to the vigour and energy which the plaintiff displayed as a salesman in the past.

61. For future economic loss I have assumed that the plaintiff would retire at age 60. By that date he would be entitled to the whole of his credits with his employer's provident fund account. The possibility that he might have worked beyond his 60th birthday is a favourable contingency to be taken into account.

62. After making the same allowances for future economic loss as I have for past economic loss and with the guidance of the report furnished by an actuary, Mr Hughes, Exhibit H, I have calculated future economic loss after taxation to the plaintiff's 60th birthday at $396,500.

63. But for one matter which I have earlier referred to as a "limitation", I would see little reason to discount that figure at all. However, I cannot accept that the plaintiff, well qualified as he is, is likely never to do anything for the rest of his working life. I am satisfied that he will encounter difficulty in working but I am equally satisfied that after an appropriate period he will recover some capacity to earn. It is not easy to assess the proper discount but, taking into account everything, including the view I formed of the plaintiff's personality and qualifications, I think the amount by which the figure for future economic loss ought to be discounted is one third. For future economic loss, therefore, I allow the sum of $264,000.

64. For loss of superannuation benefits I allow $19,816 (Exhibit H).

65. On the totality of the medical evidence I am satisfied that the plaintiff underwent more physiotherapy at the hands of Mrs Daniell than was necessary. I think that only two thirds of the amount claimed in this regard ought to be paid by the defendant. Similarly, I think the claim for continuing physiotherapy, for which I am satisfied the defendant should not be responsible beyond August 1987, should be dealt with on the same basis. The accounts rendered by Mrs Daniell for the 19 1/2 months from September 1983 to 19 April 1985 total $12,336.80. Two thirds of that equals $8,124.53 or approximately $416.64 per month. I allow a further sum of $11,666 for further physiotherapy to August 1987.

66. For the Griffiths v. Kerkemeyer ((1977) [1977] HCA 45; 139 CLR 161) component in respect of car maintenance for which I allow $10 per week and gardening for which I allow an average of $6 per week, I allow $18,624.

67. For continuing pharmaceutical expenses, noting the present situation where prescribed medicines are prescribed free after $250 per year has been paid by the patient, I allow $6,000.

68. I think that one visit to a general practitioner per month a reasonable expense and allow on that account a total of $4,300.

69. For continuing psychiatric treatment I allow for six visits a year up to the end of 1988. Thereafter I think one or two visits a year would be reasonable. In all, on that account, I allow $2,500.

70. For other out-of-pocket expenses I allow $39,988.59 being $44,100.59 less one third ($4,112) of Mrs Daniell's account included in that sum.

71. For pain and suffering and loss of enjoyment of life I allow $65,000.

72. Bearing in mind the need to avoid overlapping of damages, I yet think that the total, $541,132.59, is a proper amount for the damages suffered by the plaintiff.

73. There will be judgment for him accordingly.