Anna Kristic v Challenge Property Services Pty Limited [1987] ACTSC 56 (6 August 1987)

SUPREME COURT OF THE ACT

ANNA KRISTIC v. CHALLENGE PROPERTY SERVICES PTY. LIMITED
S.C. No. 1110 of 1985
Negligence - Employer - Damages

COURT

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

CATCHWORDS

Negligence - plaintiff cleaner injured whilst lifting sack containing newspapers from trolley into hopper - prior general complaints by plaintiff regarding physical demands of work - expert evidence on safe lifting loads - reasonable measures could have been taken by defendant to avoid risk of injury to plaintiff - negligence of a slight degree found - no contributory negligence - no new question of principle.

Employer - plaintiff cleaner injured whilst lifting sack containing newspapers from trolley into hopper - prior general complaints by plaintiff regarding physical demands of work - expert evidence on safe lifting loads - reasonable measures could have been taken by defendant to avoid risk of injury to plaintiff - negligence of a slight degree found - no contributory negligence - no new question of principle.

Damages - spinal injuries - pre-existing degenerative spinal condition - subsequent operative treatment to spine leaving plaintiff with serious debilitating condition in lumbar spine not capable of alleviation by further operative treatment - associated mild depressive condition giving rise to tension headaches - no new question of principle.

Turner v. State of South Australia (1982) 42 ALR 669

Castro v. Transfield (Qld.) Pty. Ltd. (1983) 47 ALR 715

Waugh v. Kippen [1986] HCA 12; (1986) 160 CLR 156

Bankstown Foundry Pty. Ltd. v. Braistina (1986) 65 ALR 1

French v. Phipson Nominees Pty. Limited (unreported 9 June 1987 Supreme Court of the ACT)

Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438

HEARING

CANBERRA
6:8:1987

ORDER

There be judgment for the plaintiff in the sum of $227,856.00.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff whilst working for the defendant as a cleaner on 27 January 1981 at the Australian Government Offices at ANZAC Park West. The injury occurred when the plaintiff attempted to lift a sack of rubbish attached to a trolley. The alleged injury was a prolapse or herniation of a disc at the L5/S1 level of the spine. The plaintiff alleges negligence on the part of the defendant.

2. Central to the plaintiff's case is the allegation pleaded and opened that the sack contained newspapers. Indeed the statement of claim alleges that the sack was "filled with used newspapers". The evidence does not support such an allegation, but it does support an allegation that the sack contained newspapers. The importance of the presence of newspapers within the sack is that they explain the alleged extraordinary weight of the sack and its contents on the day in question.

3. The particulars of negligence set out in the statement of claim are somewhat prolix. They include the following:

". . . . .

(b) failed to instruct the plaintiff as to how
she should carry out her duties as a
cleaner in the course of her employment by
the defendant so as to avoid the risk of
injury;

. . . . .

(q) failed to inspect the sacks filled with
used newspapers which the plaintiff was
required to lift in the course of her
employment in order to ascertain whether
or not such sacks were too heavy or
awkward for the plaintiff to lift;

(h) failed to provide proper and suitable
equipment for use by the plaintiff during
the course of her employment to enable
such sacks to be lifted without injury to
the plaintiff;

. . . . .

(j) required the plaintiff to lift something
that was obviously too heavy and awkward;

(k) required the plaintiff to lift the sack
without proper instruction as to how it
ought to be properly lifted;

(l) failed to supervise the plaintiff's work
properly;

(m) failed to provide sufficient labour or
assistance for the plaintiff in the tasks
she was required to do."

4. I deal firstly with those matters relating to liability which would not appear to be in dispute. The plaintiff was born in Yugoslavia on 17 December 1932. She attended school for only five years but she reads and writes "yugoslavian". She is barely literate in English. She married at the age of 18, was divorced twelve years later, then remarried and came to Australia with her husband in 1966. She worked first as a waitress. She ceased to work as a waitress after she joined the defendant as a cleaner in 1980. She was given some instruction by the supervisor who showed her "how and what to do and what to clean and how". In general terms, the duties involved dusting, vacuuming and polishing floors and emptying ashtrays and garbage bins. The bins were emptied by the plaintiff into a sack attached to a trolley. The plaintiff was required to wheel the trolley to a location outside the building and empty the sack into a hopper. The sack was attached to two horizontal bars, one on each side of the top of the trolley. The supervisor showed the plaintiff how to empty the sack by unhooking the sack from one of the bars and then putting one or two hands underneath the sack and lifting it straight up and over the side of the trolley to which it was still attached. The top of the trolley was at about waist height. The top of the hopper was a little higher, so that the manoeuvre of emptying the contents of the sack into the trolley involved lifting that part of the sack where the weight was to be taken to chest height at least and probably higher.

5. When the plaintiff first began working for the defendant her hours were from 7 a.m. to 3 p.m. However at a later stage the hours were reduced and she began at 7.30 a.m. and finised at 1.30 p.m. During the course of an ordinary day she would empty the trolley two to four times a day.

6. About once a month the plaintiff was required to leave the trolley outside a room called the security room to which she was apparently denied entrance. The people who worked in the security room then took the trolley inside that room, deposited whatever it was they wished to deposit in it and returned it to the position outside the security room. In the meantime the plaintiff went on with other duties and at a later stage returned to collect the trolley. On occasions the plaintiff noticed newspapers in the sack after it had come from the security room. She also noticed that when there were newspapers in the sack it was heavier than it was on those occasions when there were apparently no newspapers in it.

7. The plaintiff claimed that after her working hours were reduced she nevertheless had to do the same amount of work compressed into a shorter working day. I do not accept her evidence on this aspect, but I am prepared to find and do find that she was placed under greater pressure after the working hours were reduced. The plaintiff said that prior to the reduction in working hours she had time to scoop some of the rubbish from the sack into the hopper but that after the reduction of working hours she did not have time to adopt that course. She claimed it took about fifteen minutes. She said that in order to save time she adopted the practice of simply lifting the sack with both hands and using one knee to help to support it as she lifted. Again I do not entirely accept the plaintiff's evidence on the earlier practice of scooping out the rubbish. That alleged practice conflicts with the instruction she received from the supervisor. In any event I find that, like the day of the injury, there were occasions on which the weight of the contents of the sack was sufficient to cause the plaintiff to adopt this method of lifting it partly with the assistance of her knee.

8. On the day in question, 27 January 1981, the plaintiff started work at the usual time and went about her usual duties. At some stage she left the trolley outside the door of the security room and she returned later at about 11 a.m. She wheeled the trolley out to the hopper. She was asked these questions:

"Well now, did you see what was in it? - Was
newspaper.

And other things or not? - Yes. I was on the
basement, was about one or two empty boxes and I put
on that.

You put some empty boxes in it? - That is right.

And it had newspapers in it? - Yes."

9. When the case was opened senior counsel for the plaintiff stated that evidence would be called that the trolley "had in it big bundles of newspapers from the security room and was exceptionally heavy". However, the evidence called did not support that allegation made in the opening address and having regard to the cross-examination of the plaintiff I am not convinced that the plaintiff positively saw newspapers in bundles or stacks. She was cross-examined about the weight of the sack on that particular day and answered "Was like every other times, you know". She followed this by answering the next question, "This not the same what - was heavier". After making what I hope is proper allowance for the language problem, I did not find the plaintiff an impressive witness. I conclude that her evidence about observing newspapers and noticing that the sack was heavier than usual, is based on reconstruction after the event. That is not to say, however, that she has reconstructed the events incorrectly. I shall return to this aspect in a moment.

I return to the sequence of events.

10. The plaintiff went to lift the sack by putting her arms and leg underneath it in the manner described above. As she did so she suddenly felt sharp pain above the right buttock. She called for help. Her cry was heard by a storeman inside the building, Mr. Mark Tunbridge, who gave evidence. Having heard the call, he came out and saw the plaintiff bending forward and sideways with, according to him, her left hand on her left hip. The trolley was about five or six feet away. The plaintiff was moaning and in pain. He helped her back to the building until an ambulance came about fifteen minutes later and she was taken to the Royal Canberra Hospital. I accept Mr. Tunbridge's evidence, although he may be mistaken as to whether it was the right or left hand and the right or left hip. He may also be mistaken as to the distance from the trolley. It is curious also that the plaintiff in her evidence-in-chief at first stated "Mark Tunbridge come and try to help me lift it", but then she changed this to "help me - try to lift me or something". If the plaintiff's first answer on this aspect is correctly recorded, then I think she was simply expressing herself badly. I find that Mr. Tunbridge did not try to help the plaintiff to lift the sack. It may be noted that there is simply no evidence as to whether and how the sack was eventually emptied on that day. If it was in fact emptied, as one might expect that it was, no one has given evidence about how heavy it was or how heavy it felt. I am not able to draw any inference adverse to the defendant with any confidence, as the plaintiff made no complaint of the weight of the sack on the day, and the defendant was not alerted to the cause of injury.

11. That in short is how the plaintiff received her injury. In support of her allegation of negligence she gave evidence that she had on a number of occasions complained to her supervisor that she found the lifting of the sack heavy and she needed assistance. She added that her supervisor told her that she had passed on the complaint to management but that no assistance would be forthcoming. This evidence was objected to on behalf of the defendant on the basis that no particulars relating to complaint had been furnished. During the course of the argument on admissibility it was stated on behalf of the plaintiff that the supervisor, Draga Jadrac, would be called. The plaintiff said during cross-examination that Draga Jadrac was at some stage of the hearing in the precincts of the court. However, that person was not called to give evidence. I infer that she would not have assisted the plaintiff's case. In the circumstances, whilst I am prepared to find that on one or more occasions the plaintiff had made some complaint relating to the physical demand of the work, I am not prepared to find that it was in the precise terms alleged, nor that the supervisor made response in the precise terms alleged. The plaintiff also gave evidence in cross-examination that she made complaints to the manager, a man by the name of Phil, but I find that her complaints in that regard did not go beyond general complaints about the pressure of the work and various tasks she had to carry out.

12. In further support of her claim for negligence, the plaintiff gave evidence that she had since the injury attended at the premises of the Canberra Times newspaper and observed bundles of newspapers being weighed. She observed that a bundle of "Canberra Times" five hundred to six hundred centimetres in height weighed about forty kilograms. I accept that evidence. She also said that a bundle of "Canberra Times" of that size appeared to look like a kilo more or less than the newspapers she saw in the sack on the day she was injured. I reject that evidence insofar as I am not satisfied that the plaintiff's evidence establishes that she did positively see newspapers in stacks or bundles on the day of her injury.

13. I note in passing that although the plaintiff seems to have had the co-operation of the management of the "Canberra Times" for the purpose of observing the weighing of newspapers, no evidence was called from that quarter relating to safe practices in the newspaper printing and distributing industries.

14. In support of her claim of negligence, the plaintiff called Mr. Boris Osman of Oatley, New South Wales, a consulting engineer whose qualifications are well known. Mr. Osman conceded that the system of using a sack supported by a trolley of the type supplied by the defendant to the plaintiff was common in industry. As I understand the effect of his evidence as it went to support the plaintiff's case, however, it was that the shape of the sack was such that the distribution of the load was unpredictable introducing what Mr. Osman called "a shock loading factor". Furthermore, according to Mr. Osman, the use of the knee in lifting the load made it an eccentric load and more difficult to handle with the likelihood of placing uneven stress on the body of the person lifting. Mr. Osman gave evidence that it was recognized in industry that a weight of sixteen kilograms was the limit of safety for a straight lift by a female. He went on to say that assuming a female needed to support a load with her knee, then the safe limit of the load would be eight to ten kilograms, and if it was necessary to outstretch the arms, the safe limit could be as low as four kilograms. I do not find this evidence of great assistance. I am not prepared to make any finding as to the weight of the load in the sack on the day the plaintiff was injured, except to say that it was probably over four kilograms. However, as a tribunal of fact I am simply unable to accept that to require the plaintiff to lift the sack when its weight was more than four kilograms involved a lack of reasonable care on the part of the defendant.

15. Reliance was also placed on the evidence of Dr Willgoss, a consulting engineer in industrial safety and materials handling. Dr Willgoss' evidence was that it would he unsafe to unload the contents of the sack in question by lifting and tipping the contents if the weight was over ten to twelve kilograms. Dr Willgoss' view was that a safer practice would be to take out the contents piece by piece, and, as it so happened, he considered that that too was dangerous in the circumstances because the plaintiff had not been issued with safety gloves. Failure to issue safety gloves, however, never formed part of the plaintiff's case. Dr Willgoss expressed the view that a safe and proper practice on the part of the defendant would have been to issue the employees with a warning that if the load felt too heavy then it should not be lifted, or alternatively, to devise some arrangement whereby the sack did not have to be lifted at all but the contents could somehow or other be dropped through the floor, or a floor, into a hopper beneath. In my view, however, failure to take one or other of those measures did not amount to lack of reasonable care on the part of the defendant. There is no evidence of the incidence of employees lifting loads when they felt that the loads were too heavy. There is no evidence that the defendant knowingly permitted the employees to lift loads which the employees considered to be excessive and which gave rise to any substantial risk of injury. As to the suggestion of dropping the load instead of lifting it, there was no evidence that there was a basement in which the hopper could have been installed and in any event the defendant was not in occupation of the premises.

16. Dr Willgoss also expressed the view that it was unsafe for a woman to lift more than eleven kilograms above the waist. It is not necessary for me to decide whether that opinion should be accepted as, in my view, the plaintiff has not established that her injury occurred when she lifted the sack to a level above the waist.

17. Again I note that neither Mr. Osman nor Dr Willgoss claims any experience or expertise in the handling of newspapers.

18. Reliance was placed on behalf of the plaintiff on a number of recent High Court decisions, e.g. Turner v. State of South Australia (1982) 42 ALR 669, Castro v. Transfield (Qld.) Pty. Ltd. (1983) 47 ALR 715, Waugh v. Kippen [1986] HCA 12; (1986) 160 CLR 156, Bankstown Foundry Pty. Ltd. v. Braistina (1986) 65 ALR 1.

19. Whilst I have given full consideration to the principles of law espoused in all those cases, I do not think that they dispose of the issue with which I am ultimately concerned, namely was there something in the system of work adopted by the defendant in this particular case which amounted to a lack of reasonable care for the safety of the plaintiff? Reliance was also placed, I might add, upon the recent decision of Davies J. in this Court in French v. Phipson Nominees Pty. Limited (unreported 9 June 1987), but it is almost trite to say that that again was a case which depended upon the facts and the evidence and, in my view, it is impossible to draw any significant parallels between that case and the present.

20. Returning to the central issue in the present case, I think it appropriate to start with those facts which are clearly established to which I have already made reference. First it is clear that the plaintiff received frank injury. That is more than amply supported by the evidence of Mr. Tunbridge. Secondly, although the exact movement on her part is impossible to determine, I think it probable that she received such injury in the course of a lifting manoeuvre of the nature described. Thirdly, and not without hesitation, I find that the weight was unexpectedly heavy. Whether it was extraordinarily heavy and whether it was more or less than ten kilograms or forty kilograms, I am unable to say. The last two issues are crucial. Is it likely that the unexpected weight of the sack was due to the presence of newspapers which had been placed in the sack whilst the trolley was in the security room? There are of course other possible explanations but I think that the presence of newspapers is the most likely one. For all that, I go on to conclude that the plaintiff's injury could have been avoided if the newspapers had not been placed in the sack. Did the presence of the newspapers constitute lack of reasonable care on the part of the defendant? The ordinary householder would, I think, have enough knowledge and experience of accumulating newspapers to know that they can become unwieldy and heavy if not kept under control. Instead of tossing newspapers into a large receptacle like a garbage tin or sack, it is convenient and easy to put them into a box or carton of suitable size. The defendant could have sent the trolley into the security room at ANZAC Park West with such a box or carton accompanied by a simple request or instruction that the people in the security room put any newspapers in the box or carton, or boxes or cartons if the quantity of newspapers so demanded. I see no reason why the people in the security room would not have complied with such a request. They could have been asked further to return the carton alongside or on top of the sack. I see no reason why they would not have complied with that further request. If they had done so, the plaintiff would have been in a position to make an informed judgment as to how she should handle the newspapers. As a person of ordinary wordly experience she could have been expected to judge for herself whether a load of newspapers packed in this way appeared to be too heavy for her to safely lift. Alternatively, if she was in any doubt, she could have tentatively felt the load and abandoned it once it became apparent that she could not conveniently and comfortably lift it. Whilst I accept that the risk of the type of injury which the plaintiff suffered was not of a high order, it was nevertheless far from fanciful and hence it was foreseeable. The measures which I think the defendant could have taken to avoid that risk were simple and inexpensive and, in my view, it would have been reasonable for the defendant to take those measures. Accordingly I find negligence of a slight degree, but negligence nevertheless, established.

21. As far as contributory negligence is concerned, it may have been that the plaintiff was inadvertent. With the wisdom of hindsight, she might have approached the matter of lifting the load in question with greater circumspection. But she was acting under pressure and she was lifting the load in the manner to which she was accustomed and which the defendant had allowed her to become accustomed. I do not find that there was any lack of reasonable care on her part.

22. I turn now to the question of damages. The problem is not an easy one because of the performance of the plaintiff as a witness. Her evidence was marked by exaggeration, confusion and difficulty in expression. These factors led Dr McNichol to remark that they placed difficulties in the way of deciding what steps ought be taken for her ongoing treatment.

23. Immediately after her injury the plaintiff was taken to the Royal Canberra Hospital by ambulance. She remained there for a period of two or three weeks coming under the care of Dr McGonigal, who was not called. Upon discharge (when the plaintiff said she had the assistance of a walking frame) the plaintiff rested in bed for a further two weeks. She began to try a little housework but on doing so felt pain presumably in the lumbar area and affected leg. She again consulted Dr McGonigal who advised her to carry out light duties only. She reported back to her employer and was advised that no light duties were available. She has not worked since.

24. Even the site of the plaintiff's debilitating and incapacitating pain was the subject of confused and conflicting evidence. During her evidence she indicated the site and clearly pointed to a position above the right buttock. Mr. Tunbridge, it may be remembered, gave evidence that he saw the plaintiff holding her left side with her hand. Whilst under cross-examination the plaintiff said that she had pain in the left leg and on the left side of her lower back. That is consistent with the basic history of left-sided sciatica which she had given to many doctors over the years.

25. For some years the plaintiff had worked as a waitress in a Canberra restaurant but had left that employment in about October 1980 in order to join the defendant. It is not clear exactly why she gave up the work as a waitress. In any event, her evidence was that she intended to go back to it at some stage and, if possible, resume work as a waitress in conjunction with continuing her work as a cleaner. Her previous hours as a waitress had been from about midday until some time at night between ten and midnight. To Dr Andrea the plaintiff had said that she left work as a waitress because of the hours involved and because she wanted to be with her husband at weekends. Because of her age (she is now 55) I think it extremely unlikely that the plaintiff would have held down two jobs for any appreciable length of time.

26. Another factor which reflects against the plaintiff overall is her complaint in her evidence that she suffered from headaches virtually ever since the accident. The plaintiff was permitted to amend her particulars to include an allegation of headaches. The only doctors to whom she made complaint about any headaches were Dr Newcombe to whom she first complained of occipital headache on 15 November 1983 and Dr Andrea, who saw her on behalf of the defendant on 12 June 1986. She claimed to have been seeing her local practitioner, Dr Lai, twice a month in recent times in any event, but she was equivocal as to whether she had ever made any complaint of headaches to Dr Lai. Dr Lai was not called and his notes were not in evidence. The plaintiff gave evidence that she had been taking pain-killing and anti-depressant tablets over a long period, and her statements to the doctors over that period have been consistent with her evidence. I think that this is sufficient to establish that headaches are a factor in the case, associated with her undoubted depression, but I do not accept that they were an immediate consequence of the injury, nor that they have assumed the significance that the plaintiff claimed in her evidence. It may be noted that the plaintiff's husband, whose evidence I accept, gave evidence about the plaintiff's lifestyle and of the extent to which he renders her assistance, but he said nothing about any complaint of headache.

27. During the course of the hearing there was protracted argument about whether the plaintiff ought be allowed to amend her particulars in order to rely upon a claim of aggravated cervical spondylosis. That amendment was permitted, but only upon the basis that Dr Newcombe and the plaintiff who had already given evidence be recalled for further cross-examination. When Dr Newcombe was recalled it was discovered that the reference to cervical spondylosis in one of his reports was an error and was intended to be reference to lumbar spondylosis. The question of whether the plaintiff has suffered or is suffering or will suffer from cervical spondylosis does emerge as an issue in the case, however. She makes complaint of pain in her neck, which may have something to do with the headaches. According to Dr Andrea, whose evidence I accept, if the plaintiff is suffering from genuine neck pain, then this is not due to her injury but to the degenerative condition in the spine overall. It may be noted that the treating doctors confined their attention to spondylosis in the lumbar spine, but their evidence and that of Dr Andrea on this aspect is, in my view, not inconsistent.

28. It is clear that the plaintiff's degenerative condition in the spine has to be taken into consideration for the purpose of determining to what extent that condition may have interfered with her working capacity if she had not been injured at the hands of the defendant. I reject the view of Dr Newcombe that "on the balance of probabilities" the plaintiff would have been able to work till the age of 65 years without interference from her spinal condition. I accept the view of Dr Andrea that bearing in mind that the plaintiff received the subject injury when she lifted an unexpectedly but not altogether extraordinarily heavy bag of rubbish, the possibility that she would during her ensuing career as a cleaner suffer some similar injury in any event is a very real one.

29. Although Dr McGonigal was not called, the evidence of Mr. Tunbridge and of the plaintiff that she was confined to bed rest for three to five weeks immediately after the injury, indicates that she did suffer trauma. The operative findings of Dr Newcombe and Dr McNicol confirm that there was a disc prolapse or herniation at the L5/S1 level.

30. The plaintiff's present condition has to be seen, however, not only in the light of the injury itself, but in the light of the subsequent operative treatment which she received. She in fact submitted to operation on four occasions:

1. On 29 July 1981 a lumbar disc excision was performed
at the L5/S1 level.

2. A lumbar decompressive laminectomy was peformed on
22 March 1982 together with rhizolysis of the L4 and

L5 nerve roots.

3. On 14 March 1983 a left lumbar sympathectomy and
L5/S1 disc excision and anterior lumbar fusion were
performed.

4. On 15 August 1984 she had a rhizolysis of the left S1
nerve root and Harrington Distraction rod insertion
from L3 lumbar vertebra to the sacrum and
posterolateral fusion performed.

31. Accordingly, the plaintiff is left with a serious debilitating condition in her lumbar spine which cannot be alleviated by further operative treatment.

32. The plaintiff's case also includes a claim for pain and disability in the left hand. It appears that following the fourth operation which I have mentioned, there was some interference with the ulnar nerve of the left arm which caused paraesthesiae in the fingers. Dr McNicol and Dr Colin Andrews, a neurosurgeon, together investigated this aspect and Dr McNicol operated at a later stage in February 1985. According to Dr McNicol the problem was then resolved. According to the plaintiff in her evidence, however, she still has numbness in those fingers. I am inclined to reject her evidence on this aspect as being exaggeration or fancy, but in any event I positively find that the plaintiff has not discharged the onus of proof in drawing the necessary causal link between the ulnar nerve phenomenon and either her injury or the operations which were rendered necessary by the injury. Dr McNicol has expressed the view that there is a causal connection between the convalescence from the fourth operation and the ulnar nerve problem, but the other doctors are not so satisfied. I am not satisfied to the requisite extent that there is more than a temporal connection between the fourth operation and the ulnar nerve problem.

33. I am satisfied that the plaintiff from about the beginning of 1982 suffered a mild depressive reaction associated with her physical incapacity and that this in turn has given rise to tension headaches. I am satisfied that she is not in any practical sense fit for any type of employment. She is unlikely to improve. Her domestic life has been severely disrupted as a result of her injuries and her husband spends sometime attending to her. I am satisfied that the amount of attention and assistance she received from Mr. Kristic for a period of about two months after each of the operations was such that a separate award under Griffiths v. kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 be made on the basis of fifteen hours a week for eight weeks, a total of approximately one hundred and twenty hours. Beyond that, however, I am not satisfied that a separate award under Griffiths v. Kerkemeyer is appropriate, but the general damages will include a component intended to include an element of damages referrable to the assistance that the plaintiff receives from her husband.

34. As far as past loss of earning capacity is concerned, I think the plaintiff should be awarded a sum based on the whole of her net loss of earnings during that time without discount for any contingency that she might have been incapacitated without injury in any event because that contingency is counter balanced by the possibility that she may have taken some part-time work as a waitress during that time. As far as the future is concerned, however, I think that there should be a substantial discount for the real possibility that somewhere between now and the age of sixty-five years she would have been incapacitated by her degenerative condition even without the subject injury. I propose to deduct thirty per cent for such contingency and others. As far as the countervailing contingency of work as a waitress is concerned, I propose to include an additional amount assessed as a lump sum to cover that factor.

35. Some of the arithmetic is agreed. Past wage loss as a cleaner on the basis that the plaintiff has been wholly and continually incapacitated therefore is approximately $64,713.56. Out-of-pocket expenses are agreed at $35,494.15. I am not satisfied on the balance of probabilities that the plaintiff has a continuing liability to pay for medical and pharmaceutical expenses as claimed. However, I will allow a nominal $500 for this component. Future loss of earning capacity I allow at the agreed rate of $225.00 net per week for a cleaner to age 65, which on the three per cent discount tables give a net figure of $71,190.00 discounted by thirty per cent. I allow $1,000 against the possibility that she might have found extra part-time work as a waitress. The claim for past domestic services is rounded out to $1,000. The Fox v. Wood component is $6,753.17. For pain and suffering and loss of enjoyment of life I award $32,000 and apportion $20,000 to the past for the purpose of interest. Workers compensation paid to 10 June 1987 was $49,495.69 and so I award interest on $13,417.87 part of the past economic loss. Interest is calculated at 14 per cent per annum and the result reduced by half which amounts to $6,105.13 for past economic loss and $9,100.00 for past pain and suffering. Those amounts will be added to the damages and the plaintiff is to have judgment for $227,856.00 which appears to be appropriate overall. Unless the parties wish to be heard I propose to order the defendant to pay the plaintiff's costs.