Claire Kathleen Hinton v Graham Utley [1991] ACTSC 66 (20 August 1991)

SUPREME COURT OF THE ACT

CLAIRE KATHLEEN HINTON v. GRAHAM UTLEY
S.C. No. 593 of 1986
Negligence

COURT

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

CATCHWORDS

Negligence - vicarious liability of radiologist for acts of employed radiographer - standard of care - partial dislocation of facet joint in lumbar region of back - whether caused by mammogram procedure involving Xeroradiography - no new question of principle.

HEARING

CANBERRA
20:8:1991

Counsel for the plaintiff: Mr D. Rofe, QC, with Mr B. Hull

Solicitors for the plaintiff: Allan R. Nelson and Co.

Counsel for the defendant: Mr R. Williams, QC

Solicitors for the defendant: Minter Ellison

ORDER

There be verdict and judgment for the defendant.

DECISION

On 16 April 1980 the plaintiff, on reference from a surgeon, underwent a mammogram procedure at the rooms of the defendant, a radiologist. On 15 April 1986 the plaintiff commenced proceedings against the defendant claiming damages for personal injuries sustained as a result of the negligent performance of the mammogram.

2. The nature of the injury alleged is a subluxation or partial dislocation of a facet joint slightly to the left of the L5/S1 junction. For reasons to which I shall refer, I am convinced that an injury of that nature occurred during the mammogram procedure. It is difficult to decide how exactly it occurred. The incident in which it is alleged the injury was sustained was so unremarkable that the plaintiff made no mention of it to the radiographer when it occurred or in conversation with the defendant prior to leaving the defendant's rooms on that date.

3. The mammogram was performed by means of a technique known as Xeroradiography. As the term suggests, it is related to the technique of Xerox photocopying. It is a technique which is no longer used. It was introduced into Australia in about 1976 and ceased to be used at least in this country, in about 1986 to 1988. The main reason it ceased to be used was because of the perceived risks associated with the radioactivity of the materials used.

4. Xeroradiography avoided the use of x-ray film, for which there was substituted a cassette. The cassette was a sensitive plate, easily susceptible to damage. For the protection of the cassette it was the practice to place it in a cassette case or holder which was supplied by the manufacturer of the Xeroradiography equipment. The cassette measured about 46 cms long by about 43 cms wide by about 13 cms thick. There is no dispute that, apart from one controversial matter, the procedure followed on the day in question did not depart from the standard procedure. It is not alleged that the standard procedure was inherently dangerous or that it gave rise to a foreseeable risk of injury which required some particular step to be taken to avoid or minimise that foreseeable risk.

5. The direct evidence of what happened was confined to what came from the plaintiff herself. The only other person who was present at the time of the mammogram was Mrs Patricia Morris, the radiographer employed by the defendant to carry out the mammogram. Mrs Morris, who gave evidence, said that she had no memory at all of the visit of the plaintiff on 16 April 1980. I consider that it would be unrealistic in the circumstances to expect her to have any such memory.

6. The plaintiff's account of what happened is in essence as follows. She was asked by the radiographer to remove her upper garments, which she did. She was asked to sit on a table, referred to in evidence as an x-ray table. It was approximately 2 metres long and 0.675 metres wide. It was about 0.785 metres high. Part of the mammography equipment, similar to x-ray equipment, was mounted on an arm fixed to an upright set in a track running the length of the table. When the patient was in an appropriate position the arm could be brought down over the particular part of the body subject to examination. Whilst the plaintiff was seated on the table, the cones were brought down over each of her breasts in turn and the mammograms taken.

7. The plaintiff was then required to adopt what was called a medio-lateral position. For this purpose she lay first on her left side for the purpose of mammography of her left breast. That was performed without incident. She said in her evidence that after the mammogram of the left breast had been performed, she was then asked to roll over onto her right side, which she did. She had her right leg extended, her head on a pillow and her right upper arm at a right angle to her shoulder with her forearm on the pillow beside her face. Mrs Morris then took her left leg and placed it in such a position that the upper leg was at right angles to her body, the lower leg parallel with her body, and the knee touching the surface of the table. When Mrs Morris did this, the plaintiff, according to her evidence, felt strain in the lumbar area, slightly to the left of the junction of her spine and pelvis.

8. Mrs Morris then asked the plaintiff to hold her left breast with her left hand in a position to allow the cone to be lowered on to the right breast. When the plaintiff did that, Mrs Morris brought the plaintiff's right arm back and on to the pillow beside her face and placed pieces of foam under the right breast and behind the plaintiff's back.

9. According to the plaintiff, Mrs Morris then picked up the cassette case (from where it is not clear) and said to the plaintiff, "Now lift your body up". The plaintiff then sought to raise that part of the right side of her body which was in contact with the surface of the table by pushing down hard on her right shoulder. The plaintiff described this movement in terms of "arching" her body. Mrs Morris then pushed the cassette case under the body of the plaintiff so that one end, the top end, was more or less under the plaintiff's shoulder and the other end, the bottom end, in the region of the plaintiff's hip. Mrs Morris manoeuvred the case slightly and then asked the plaintiff to lower her body. In doing so, the plaintiff was not able to control the speed and degree of lowering and she felt her hip bone come into contact with the bottom end edge of the cassette case. She experienced what she first described as "sharp momentary pain", and later as "a sharp wrench", in the same place where she had felt the strain a short time earlier when Mrs Morris had moved her left leg.

10. Mrs Morris then brought the cone down against the plaintiff's right breast, placed the cassette in the cassette case and performed the mammogram.

11. The plaintiff was then asked to lie on her back. Mrs Morris left the room and returned a short time later with the defendant. There was a short conversation with the defendant about the results of the mammogram and the defendant left the room.

12. Mrs Morris then told the plaintiff that she could get down from the table. As the plaintiff, in a sitting position, stretched her feet downwards towards the floor, she again felt pain in the same lumbar area, insufficient to give her any concern. She dressed and went to go home. When she got into her car seat, the plaintiff again experienced pain in the same lumbar area. It was momentary, was not severe and did not concern her.

13. Later that afternoon, when she went to get out of her chair, she found that she could not stand upright and felt excruciating pain in the same lumbar area. She was virtually doubled up and needed the assistance of her daughter and husband to go to bed. She was unable to straighten herself the following morning and had great difficulty getting herself to Mr Mitchell, a doctor of chiropractic, at Civic. By that time, according to her evidence, the pain had extended across the whole of her back at the same level.

14. For present purposes the next event of significance was nearly a year later, about a week before 17 June 1981, on which latter date the plaintiff was due to have a further mammogram. She made an appointment to see the defendant prior to the day fixed for the mammogram. She told him that she had had a mammogram just over twelve months previously, that her back had been hurt then and that she was apprehensive about having another one. She said that the conversation took place in the office where there were office staff and ladies in white coats. She did not recognize any of them as being the radiographer who had performed the mammogram the previous year. She said that the defendant announced to the staff, "This poor lady hurt her back the last time she was here". In answer to an enquiry from one of the women, the plaintiff said that she replied that she had received her injury when "my hip hit the edge of the box coming down". She told them that she could not remember who had performed the mammogram and one of the women said in the presence of the defendant, "I always try to get it under the waist". There was conversation between the defendant and the other women to the effect that none of them could remember anyone ever being hurt in a mammogram. The defendant said that he would personally carry out the mammogram on the next occasion.

15. On 17 June 1981 the plaintiff once again attended the defendant's rooms. On this occasion both defendant and Mrs Morris were present for the mammogram. According to the plaintiff, it was carried out in a room different from that in which the first mammogram had been carried out, but upon a similar table. She said that the defendant on this second occasion supported her body with his hands when she was in a position similar to that on the first occasion at the time of her injury. She said that Mrs Morris picked up the cassette case and began to walk towards the table, but the defendant said, "No, we won't use that this time". Mrs Morris said, "I wish they would design something better than this". The defendant nodded, Mrs Morris put the case to one side, the defendant rolled the plaintiff gently to the rear, Mrs Morris placed the cassette under the plaintiff's breast and the defendant rolled the plaintiff forward onto the cassette. The cone was brought down and the mammogram taken.

16. According to the plaintiff there was some further conversation with the defendant on that occasion. Exactly where it took place she did not say. She said that she asked the defendant about her out-of-pocket expenses and told him that she had suffered a lot of pain and incapacity. She said that the defendant told her that if she wished to sue him, she would have to see a solicitor.

17. I turn now to the evidence of Mrs Morris. She qualified as a radiographer in 1963 and has practised on and off since that time. She joined the defendant in 1978 and has concentrated on mammography procedures since then. In October 1978 she received a day's training in Sydney and three or four days' training in Canberra in the use of Xeroradiography. She has worked full-time for the defendant since then. She performs between four and ten mammograms per day. She said that she remembered that in 1981 she conducted a mammogram under the supervision of the defendant of a woman who complained that she had hurt her back in a previous examination about 12 months previously. She said in her evidence that at that latter examination she had no memory of any previous examination which matched the description given by the plaintiff. However, she did not dispute that it was the plaintiff who made the complaint which she remembered. Accordingly she thought it unlikely that it was anybody but herself who performed the mammogram on the plaintiff on 16 April 1980. She said that she did not give any further thought as to what had happened in the first examination between the time of the 1981 mammogram and about 1986 or 1987. It was in one of those years that she heard that a claim had been made against the defendant in relation to an alleged injury in a mammogram in 1980.

18. Although Mrs Morris did not remember anything about the 1980 mammogram, there were several aspects of her evidence which were inconsistent with the plaintiff's account.

19. First, according to the plaintiff, there was no mattress on the table at the time of the mammogram. Mrs Morris said that a two inch foam mattress was always in position at the time a mammogram was performed.

20. Secondly, according to the plaintiff, she had to stand on a chair before she got herself onto the table. According to Mrs Morris, this was never done, there was a set of steps for that purpose. A photograph of the steps was tendered in evidence.

21. Thirdly, according to Mrs Morris, she never on any occasion asked a patient to lift or arch her body in the way described by the plaintiff. However, Mrs Morris conceded that it was sometimes necessary to adjust the position of the cassette case or to get the patient to "wriggle" in order to have the cassette in a position for obtaining a picture of the precise part of the patient's anatomy. Mrs Morris added that unless the patient was in a comfortable position, the patient was unlikely to remain still, with the result that a clear and accurate image could not be obtained.

22. Fourthly, Mrs Morris said that in all cases, the cassette case was placed in position on the table and the patient asked to roll onto it. It was never the procedure that the patient was placed into position as the plaintiff had described and then the cassette case placed by Mrs Morris under the body of the patient.

23. Next, according to the plaintiff, all that was required of her to proceed from the mammogram of the left breast to the mammogram of the right breast was that she roll from one side to the other. Mrs Morris said that that would have been impossible with the equipment that was in use in April 1980. The equipment then in use was so fixed that it was necessary for the patient to remain facing the same way for each mammogram and for the patient to be repositioned so that her head was at the opposite end of the table for the mammogram of the other breast. Mrs Morris added that by the time of the plaintiff's next visit in June 1981, new mobile equipment had been installed which enabled mammograms to be taken of each breast in such a way that the patient simply rolled over on the table between mammograms, without the need to move to the other end of the table.

24. Both the plaintiff and Mrs Morris were credible witnesses. To determine what the facts were in areas where their evidence conflicts is a matter of considerable difficulty. I have to bear in mind that the extraordinary length of time since the events in question is such that the evidence of any witness has to be approached with scepticism. Nevertheless, some of the plaintiff's evidence is supported by other evidence. The report of Mr Mitchell, the chiropractor, dated 21 September 1981 states unequivocally that after her previous visit of 26 November 1974, the plaintiff next returned on 17 April 1980 and reported "that she had been very well indeed until being x-rayed for suspected breast cancer the previous day". The report goes on to record that the plaintiff reported, "that the x-ray plate placed under her had hurt her hip at the time and since then the hip had given her considerable pain". That of course is not evidence as to what happened, but merely evidence as to complaint. Nevertheless, it is not inconsistent with the plaintiff's claim. The plaintiff's husband and daughter also gave convincing evidence that on the evening of the 1980 mammogram and the morning thereafter the plaintiff was doubled up and complaining of extreme pain in her lumbar region. Further, Mrs Morris remembered, although in an understandably vague sort of way, that in 1981 there was a woman patient complaining of being hurt in a mammogram the previous year and remembered herself performing a mammogram on that woman in the presence of the defendant after the complaint was made. The inference is inescapable that on the probabilities the woman making the complaint and upon whom both mammograms were performed, was the plaintiff.

25. The next matter is not directly in point, but its resolution may be of significance. The plaintiff said that the table upon which the mammogram was performed in 1981 was the same as that used in April 1980 and that the procedures were similar in that on each occasion the plaintiff was simply asked to roll from her left side to her right, and was not on either occasion asked to move from one end of the table to the other. Mrs Morris said that this could not be correct because it was not until early 1981 that new equipment was obtained which enabled the rolling-over procedure to be adopted. However, Mrs Morris' source of her memory as at the time of trial that the equipment was obtained in early 1981 was a conversation she had with the defendant shortly before the trial. I am not convinced that she had any independent recollection of the time the new equipment was obtained. I am therefore not convinced that the plaintiff confused the mammogram on 16 April 1980 in respect of which she sues with the mammogram which took place in June 1981.

26. There remains the issue whether Mrs Morris placed the cassette under the body of the plaintiff or whether the cassette was on the table and the plaintiff rolled herself on to it and the issue whether Mrs Morris asked the plaintiff to arch her back in the way described by the plaintiff in her evidence. Before deciding those issues, however, I think it necessary to state my conclusion that I accept Mrs Morris' evidence that there was no occasion when she performed a mammogram without the two inch foam mattress being on the table. I come to that conclusion simply because of the unlikelihood that a mammogram would have been performed under those conditions and the sheer physical unlikelihood of the cassette case being placed on the table without a mattress. The photograph, Exhibit M3, shows that the table has edges which are raised slightly by about a centimetre or two, with aluminium strips running longitudinally on those edges. This gives the table surface a slight saucer-like effect. The width of the table is not such that the cassette could sit on the surface of the table. It is more likely that the centre of the cassette case would be suspended from the surface of the table, with each of its sides resting on the lip of the table. Consistently, a two inch foam mattress would fit appropriately between the raised edges or lips of the table.

27. In all the circumstances, although it is likely that Mrs Morris said something to the plaintiff about adjusting her body so that the cassette case would be in a correct position for the mammogram, I am not convinced that she did this in terms so dramatic as those stated by the plaintiff, or that in particular the plaintiff was required to "arch" her body as described. It is more likely, in my view, that Mrs Morris asked her to do something which might more appropriately be described as a wriggle. I do not exclude the possibility that the plaintiff may have brought her body up in an arch-like fashion, but I am not convinced that she was required to do so by Mrs Morris in the sense that the plaintiff was asked to do other than what was commonly done according to a safe and standard procedure.

28. Furthermore, the medical evidence, in my view, leads to the conclusion that it was not the sudden impact of the plaintiff's hip on the edge of the cassette case which constituted the injury. Rather, it was the involuntary reaction of the plaintiff's muscular system to the sudden sensation of impact of the hip bone with the edge of the cassette case which constituted the "sharp wrench" that she described. The term "wrench" was taken up by her counsel and used repeatedly in the case thereafter. The plaintiff's hip was not exposed, although it is not clear what exactly she was wearing on the lower half of her body. She said that she was wearing an x-ray gown. In any event, there was no bruising to her hip. Although some of the medical evidence suggested that the injury was caused by the downward movement of the hip bone being suddenly arrested whilst the torso continued in a downward movement, I think the more likely explanation of the subluxation was an unguarded movement in the nature of an unexpected and twisting reaction to the sudden contact of the hip with the cassette box. The injury was not, in my view, a frank trauma to the hip, and certainly not a trauma to the lumbar spine. I think that the description "sharp wrench" is likely to be an exaggeration, not deliberate but an exaggeration nonetheless.

29. These findings of fact lead to what is really the ultimate question, and that is whether Mrs Morris was negligent in placing the plaintiff or allowing the plaintiff to place herself in such a position that her hip was likely to come into sudden contact with the edge of the cassette case. The plaintiff is a short woman, about 1.56 metres tall. The several photographs in evidence and a clay model show that the dimensions of the cassette case are such that it would fit under a taller person comfortably and would do so appropriately between the waist and the shoulder. On the other hand, for a person as short as the plaintiff, the cassette case would provide a comfortable position only if that end of the cassette case closer to the shoulder projected further towards the shoulder than in the case of a taller person. It is unclear on the evidence whether the cassette case in such a position would still enable an accurate image for mammography of the breast to be obtained, but on the whole I think that it would do so. In other words, for the purposes of an adequate mammogram, it would have still been possible in the case of a person of the plaintiff's size to have had the cassette in such a position that it did not impinge upon the hip bone. That means that there was a reasonably practicable alternative which would have avoided the risk of injury to the plaintiff.

30. But was the action of Mrs Morris unreasonable? There was, in my view, no departure from standard practice and whilst standard practice does not of itself guarantee reasonableness, it is a strong indication. In the present case it has not been demonstrated that there was anything unreasonable about the standard practice. With the wisdom of hindsight, it is possible to say that Mrs Morris should have been astute to ensure that the cassette was not placed in such a position that the plaintiff's hip bone was likely to be brought into contact with it suddenly with the likely result then that the plaintiff might suffer some injury not from the impact of the hip bone with the cassette case, but from the reaction of her spine to such an unexpected or awkward event. There was evidence from many sources that no one had, or indeed has, ever been injured in a mammogram at the defendant's rooms. The conduct of the person alleged to have been negligent has to be measured against the remoteness of the risk.

31. In my view, the risk of some physical injury during the course of the mammogram is not so remote that a duty of care to prevent injury or at least minimise the risk of injury to the patient should be regarded as not arising. The standard of care is fixed by law as that which is reasonable in the circumstances. Circumstances vary. For instance, the radiographer was not entitled to apply the same degree of physical stress to the plaintiff's limbs as may be permitted of a chiropractor or a medical practitioner performing manipulation. But no complaint of excessive force is made against Mrs Morris. It should also be remembered that the first sign of discomfort in the plaintiff's lumbar region on that day appeared when Mrs Morris placed the plaintiff's upper left leg at a ninety degree angle to her body. At that stage the plaintiff felt "strain" in the same area as where she later felt pain and a wrench. She made no complaint to Mrs Morris at that initial stage to put Mrs Morris on guard that there might be a greater risk of injury during a later stage of the mammogram procedure. No allegation is made that Mrs Morris was negligent in the way she positioned the plaintiff's left leg. In the same way I am not convinced that there was any want of reasonable care on the part of Mrs Morris in doing what she did in relation to the cassette case.

32. I have considered whether the failure of the defendant to give evidence in some way strengthens the plaintiff's case. If the defendant is to be held liable, the nature of the claim brought against him is that he is vicariously liable for an employee, not that he is personally liable for a negligent system. The particulars of the negligence of the radiographer are set out in the statement of claim as follows:
"(a) In not ensuring that the wooden case was in its correct strategic
position hat it did not come into contact with the plaintiff's hip bone

(b) In directing the plaintiff to lower her body on to the wooden case
when the case was not in its correct strategic position.
(c) In using a wooden case at all."

33. Further particulars of negligence were supplied in a letter dated 27 February 1990 from the plaintiff's solicitors to the defendant's solicitors in which it was alleged that it was negligent of the defendant to have permitted the mammogram to have taken place without a foam mattress on the table. As I have already indicated, the use of the cassette case in itself did not involve an unreasonable failure to take care and I positively find that a foam mattress was on the table. There remains the evidence of the plaintiff as to what the defendant said at the meeting in his office shortly before the mammogram in June 1981 and also what he said on that latter date. The plaintiff's evidence as to what happened in the office is uncontradicted, but if it is to assist the plaintiff's case there has to be construed from it something in the nature of an admission of negligence on the part of the defendant. I do not construe anything said or done by the defendant on that occasion to constitute such an admission. The fact that somebody, apparently an employee of the defendant, said that she always tried to get the cassette box under the waist and the apparent silence of the defendant when that remark was made does not, in my view, constitute an admission by him of negligence on the part of Mrs Morris. The fact that the defendant on the occasion of the subsequent mammogram on 17 June 1981, when appraised of some injury to the plaintiff's back on a prior occasion, caused the mammogram to be carried out using a cassette without a case, again does not show that there was a lack of reasonable care in the procedure carried out previously in 1980. Nor did the alleged statement by Mrs Morris on 17 June 1981 to the effect that she wished there was a better design for the cassette case, and the nodding assent of the defendant to that proposition, carry with them an implication that the defendant was making an admission of negligence.

34. For the above reasons, I am not satisfied that the plaintiff has discharged the onus of proof of establishing that the defendant's employee failed to take reasonable care for the plaintiff's safety. There will be verdict and judgment for the defendant.

35. In case it is of assistance to the parties, I will give brief reasons for the award of damages I would have made if I had found in the plaintiff's favour.

36. The injury sustained by the plaintiff was a subluxation of a facet joint at the L5/S1 level, slightly to the left. Initially, as the medical evidence indicated, involuntary muscular spasm held the partially dislocated joint in place. Once partially dislocated, however, the ligaments in the area lost a certain amount of elasticity and when the muscles subsequently became relaxed the plaintiff was at risk of further displacement of the joint. This is what happened when she went to get off the operating table (although the amount of pain even at that stage was not sufficient for her to make any remark to the radiographer who was present, or to the defendant who came in a short time later to examine her). The plaintiff was able to get to her car without discomfort and it was only when she was pushing herself back in her car seat that once again there was the sudden and sharp pain. A few hours later in her home when her muscles had once again relaxed, and when she made a movement to get up from a chair, there was an incident, triggered off by the initial subluxation on the radiographer's table, of considerable magnitude, causing the plaintiff to be doubled up and to be in severe pain until the following day when she was able to get to a chiropractor. She gradually recovered during a period of six weeks or so during which she received chiropractic treatment.

37. At the time of her injury the plaintiff was employed as a typist with the Department of Business and Consumer Affairs. Immediately after her injury she remained off work until 30 April 1980. On 30 June 1980 she resigned from the Public Service, but that decision was unrelated to her injury. She worked casually and part-time until April 1981 when she began working part-time for a firm of solicitors. She ceased working for the solicitors in October 1981. From time to time during 1980, 1981 and 1983 the plaintiff's spinal condition flared up and she would have to spend several days confined to bed. These situations occurred when she was carrying out ordinary household, family or gardening activities. She visited her general practitioner, Dr Prosser, for the first time for her injury on in December 1981. Eventually, she consulted Dr Lewis of Wagga in September 1983. Dr Lewis, although a general practitioner, makes a speciality of the manipulation of the spine. The plaintiff received immediate relief from the treatment given by Dr Lewis and has consulted him on several occasions over the years, the last being on 3 January 1988. Although the plaintiff was subject to periods of excruciating pain from the date of the initial subluxation in April 1980, she experienced almost total relief in September 1983 and, whenever there has been significant pain in the meantime, she has consulted Dr Lewis and again gained relief.

38. In my view, the subluxation in April 1980 triggered off the condition which has incapacitated the plaintiff from time to time since then and between February 1981 and March 1983 there were five incidents around the home which involved unremarkable physical activity which resulted in the plaintiff having to spend up to five days in bed on each occasion.

39. Until the plaintiff saw Dr Lewis in September 1983 the diagnosis of her condition ranged from spondylosis to rupture of a lumbar disc. Her sexual life was severely disrupted. The plaintiff is still not able to engage in activities involving prolonged bending or heavy lifting.

40. Once the view is accepted that the incident on 16 April 1980 was a subluxation which was substantially relieved, the effects of which were not totally eliminated by Dr Lewis in his manipulations of September 1983 and subsequently, the plaintiff has to be compensated, inter alia, for the possibility that recurrences will occur in the future and will be due to the 1980 subluxation. Indeed Dr Scarlett puts it as high as a likelihood that such recurrences will occur and that it is a possibility that there will be a severe recurrence. In any event, it is thought that further manipulations like those already performed should be sufficient to alleviate the symptoms. Nevertheless, the result of the plaintiff's injury although not presently causing pain, is incapacitating in the sense that the plaintiff is still precluded from certain activities, particularly those involving twisting in the back, such as scrubbing the bath, polishing floors, certain activities in the garden, driving long distances without a stop, lifting grandchildren and so on. There is, in my view, however, no sufficient interference with her earning capacity to justify a separate award in that respect for the future, and the contingency that there may be a recurrence of her condition which will result in incapacity to work ought to be reflected in the award for general damages.

41. The plaintiff's out-of-pocket expenses are claimed at a modest $133 and should be part of the award. She makes a claim under the head of gratuitous domestic services. The evidence is clear that when she has been laid-up in bed domestic duties have been carried out by her daughters or by her husband. I would allow $200 for the first two weeks immediately after the injury and for the periods from 30 April 1980 to 17 September 1983, about ten hours per week. Part of this, I think, amounted simply to a convenient domestic rearrangement, but part is recoverable. I would allow a total of $5,000 up until the end of 1983, after which no claim under this head is made.

42. As to loss of earning capacity, she claims a loss of approximately $150 per week net for the period immediately after the injury. There is no direct evidence as to her wage rate but this is not an unreasonable amount to claim and I would award loss of wages for that period of $300. She was in part-time employment thereafter only and I am not convinced that any actual loss of time from work has reflected in loss of earnings.

43. In a letter of particulars dated 18 February 1987, the plaintiff's solicitors made a claim for chiropractic expenses of $183, medical expenses payable to Dr Lewis $125 and to Dr Prosser $145. I think that those should be awarded despite the lack of precise evidence relating to them. There are other claims relating to other medical practitioners, but the evidence is so lacking in relation to those that I do not think they should be awarded.

44. The substantial claim is for pain and suffering and loss of enjoyment of life. There was a considerable amount of quite severe pain at frequent intervals up until the end of 1983 and bouts have occurred since then. There has been a substantial interference with the plaintiff's enjoyment of life and it will continue into the future to some extent. I think that an appropriate award for general damages would be $45,000, as to which I would apportion $35,000 as to the past. As far as interest is concerned, there is no explanation for the extraordinary delay in prosecuting the plaintiff's case, and I do not think the defendant should have to bear the whole of a claim for interest on the usual basis. I would award the plaintiff about one half of what would otherwise have been awarded by way of interest. That one half is in fairly precise figures, $8,211. The total damages I would have awarded would have been as follows:

Out-of-pocket expenses $ 133.00
Domestic services $ 5,000.00
Past loss of earning capacity $ 300.00
Medical expenses $ 453.00
General Damages $45,000.00
Interest $ 8,211.00
Total: $59,097.00

45. Viewed globally I think that a sum of $60,000.00 would have been an appropriate sum to award the plaintiff by way of damages and interest.