Eugenia Maria Laxy v Ibm Australia Limited [1992] ACTSC 108 (30 October 1992)

SUPREME COURT OF THE ACT

EUGENIA MARIA LAXY v. IBM AUSTRALIA LIMITED
No. SC 1748 of 1988
Number of pages - 22
Damages

COURT

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

CATCHWORDS

Damages - personal injury - method of assessment - discount for pre-existing degenerative condition - psychological condition as aggravating factor - no new question of principle.

Watts v. Rake [1960] HCA 58; (1960) 108 CLR 158

Malec v. J.C. Hutton Pty. Ltd. [1990] HCA 20; (1990) 169 CLR 638

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

HEARING

CANBERRA
30:10:1992

Counsel for the plaintiff: Mr R.E. Williams, QC with Mr R. Crowe

Solicitors for the plaintiff: Pamela Coward and Associates

Counsel for the defendant: Mr G.A. Stretton

Solicitors for the defendant: Sneddon Hall and Gallop

ORDER

THE COURT ORDERS THAT:
1. There be judgment for the plaintiff in the sum of $239,827.41.

DECISION

MILES C.J. This is an assessment of damages for personal injuries sustained by the plaintiff on 29 September 1987 in the course of her duties as an employee of the defendant. The plaintiff was employed in what she described as a senior administrative capacity in the defendant's branch offices at Barton. The injury was suffered during the absence of a mail clerk when the plaintiff was attempting to manoeuvre a trolley carrying mail. A wheel jammed and as the plaintiff attempted to get the trolley moving, she felt pain in her lower back. Her counsel in opening the case said that it felt like "an explosion in the middle of the back". The plaintiff repeated that account in her evidence except that she located the pain in her lower back. Amongst the many accounts given by the plaintiff to the doctors over the years, there are statements simply to the effect that she felt backache following the pushing of a trolley at work. The circumstances surrounding the onset of the pain on or after 29 September 1987 is a matter to which I shall return, although liability is not in issue in the sense that the defendant does not dispute that, if the plaintiff did suffer damage, it was as a result of lack of reasonable care on the part of the defendant. The essential issues in the case are the nature of the plaintiff's continuing incapacity for work, and associated symptoms, and whether such incapacity and symptoms are related to the injury in question.

2. First, a brief overview of the plaintiff's background. She was born in Hungary on 22 October 1949. Her father was a dispossessed land owner and in the aftermath of the events of 1956 the family crossed the border into Austria. The family subsequently migrated to Denmark. The plaintiff's parents separated when she was 10 years old. The plaintiff was sent to a boarding school; otherwise she lived with her mother. Her parents are now dead. She has three sisters in various parts of the world, none of them in Australia. She married in 1974, migrating to Australia in the same year. She has one son, a child who was born in 1980. The plaintiff and her husband separated in September 1991, when it appears that her husband, a house painter by occupation, was no longer in work.

3. The onset of lower back pain on 29 September 1987, however, was not the first occasion on which the plaintiff had experienced problems of that nature. In fact there were three prior incidents which precipitated symptoms of pain in her lower back. In respect of two of them, I was told, she had already successfully sued the defendant and recovered damages. On the first occasion the plaintiff had sustained an acute back strain on 6 December 1982 when she fainted or fell over when getting into or alighting from a taxi. She saw Dr Fitt three days later complaining that her back had been painful since, with radiating pain to the back of both thighs. Dr Fitt concluded that there was some damage to the coccyx, together with ligamentous strain. He prescribed pain-killing medication and recommended physiotherapy if the plaintiff did not recover soon. There is no note of a return to Dr Fitt on this matter.

4. The second incident was on 23 September 1985 when the plaintiff was carrying and stacking boxes of computer paper. She said that on that occasion her tailbone felt sore over a period of a few days, and that she lost no time from work. However, she agreed in cross-examination, and the notes of Dr Fitt support this, that the day following that incident as she was weeding in her garden, or about to carry out some weeding, she felt pain in her back. According to what she told Dr Veness she lost about a week from work on this occasion. However, Dr Fitt notes "acute back syndrome" on 30 September 1985.

5. The third of these occasions was on 10 April 1986 when the plaintiff stepped into a hole in the floor whilst at work and again experienced pain in her back. Dr Fitt's notes of that date indicate that he concluded that there was a soft tissue injury. He notes also that the plaintiff "had a preceding back strain last year but this had settled".

6. No issue estoppel was raised in relation to the two prior injuries at work and I conclude on the evidence before me that the plaintiff had completely recovered from their effect (and from the effect of the incident on 6 December 1982) by 29 September 1987.

7. Whatever it was that occurred on 29 September 1987, it was not sufficient to cause the plaintiff to cease work immediately. She worked the rest of the day and reported either that day or the next day to her local practitioner, Dr Fitt. Dr Fitt did not give evidence, but his handwritten notes were produced. The entry for 29 September 1987 appears to read as follows:
"Back problem again. Pushing trolley at work even though she felt

it was causing problems. Had no choice. Today her .... (?) got
extremely sore with pain radiating down lateral (L) leg to mid-ankle.
O/E looks in pain."

8. Dr Fitt appears to have noted full but painful movement in the lower spine, with straight leg raising restricted to thirty degrees on each leg. He prescribed physiotherapy.

9. When seen by the physiotherapist, Ms Margaret O'Donovan, on 11 December 1987, the plaintiff was complaining of constant back pain radiating down the back of both legs to her ankles and was complaining of bilateral anterior hip pain. Reports from Ms O'Donovan which read like medical reports were admitted into evidence. Ms O'Donovan saw x-rays showing a disc bulge at L5/S1. Physiotherapy was ineffective to relieve the plaintiff's pain.

10. The plaintiff returned to work after several weeks. Dr Fitt noted on 26 November 1987 that the plaintiff was still suffering "recurrent lower back ache" with no improvement after the physiotherapy, and that the pain was radiating to both lower thighs and to the neck. Dr Fitt saw a CT scan which showed a moderate disc bulge at L4/5, with a smaller bulge at L5/S1. In either case the nerve root did not appear to be involved. Dr Fitt recommended that the plaintiff stay off work, but participate in a rehabilitation programme arranged or to be arranged by the defendant. When there was no improvement in early January 1988, Dr Fitt referred the plaintiff to Dr Chandran, a neurosurgeon, for assessment with the comment that the plaintiff was suffering from "progressive back ache associated with minor trauma at work (probably three episodes) which is not improving".

11. Dr Chandran did not give evidence and there was no report from him. However, it appears that Dr Chandran saw the plaintiff only once in 1988 and perhaps once again in 1989 and I do not think that the absence of anything from him is of any particular significance. It is clear from Dr Fitt's letter to Dr Chandran of 30 March 1989 that Dr Chandran had previously prescribed conservative treatment, and that it had not worked.

12. According to the medical notes, she appears to have been off work till about November or December 1987, but she agreed in cross-examination that she was off work for one week only, went back to work as indicated above and continued until 23 November 1987. She carried out her previous duties, except for the periods when she was required to attend physiotherapy. The trips to the physiotherapist were three to five times per week, and caused, or aggravated, some tension with her superior officer at work. The plaintiff saw Dr Chandran shortly before 9 February 1988. She was advised by him or by Dr Fitt to persevere with conservative measures, to carry out recommended exercises and continue with heat and traction treatment. On 22 February 1988 Dr Fitt noted that she was still complaining of backache in the middle sacral area, with slight pain on the outside of her left thigh, but not radiating down to the toes. She was walking up to an hour but with recurrent trouble. She continued in much the same condition through March and when reviewed by Dr Fitt on 14 April 1988 reported improvement to the extent that she "had recovered 50%", insofar as the pain in her leg was gone, exercises were not hurting, bending was easier and she was able to walk up to an hour before the onset of pain. However, the day before Dr Fitt's examination she had tripped on a tree stump and fallen jarring her lower back with the onset of pain and stiffness once more.

13. At about this time she was referred to Dr Corry for rehabilitation. At first she saw Dr Hilton, a colleague of Dr Corry. The exercises that were prescribed exacerbated the problem and the plaintiff was able to carry out only half of the exercises prescribed. She complained to Dr Fitt that pain was present all the time, radiating down the left buttock.

14. The plaintiff appears to have continued in much the same way during the rest of 1988, not reporting any improvement and, if anything, her condition deteriorated. She saw Dr Corry on 6 December 1988. She complained of persisting pain in her lower back, spreading to her left leg "which had been aggravated by a recent return to physiotherapy". Dr Corry noted her "abnormal gait with a very stiff posture" and that she exhibited "a number of pain behaviours during the interview". CT scans were performed and they confirmed disc degeneration with some protrusion at the L4/5 and L5/S1 levels as well as early arthritic changes at the lower level. A TENS machine was prescribed with no positive advantage. Dr Corry examined her again in February of 1989, by which time the plaintiff was complaining of increased pain level, the location of pain had spread to both heels and there was tenderness in the Achilles tendon. Dr Corry was unable to decide whether this latter complaint was due to a nerve root involvement from "her disc injury" or whether it was a result of her abnormal gait. A vocational rehabilitation programme was arranged with the defendant and its medical officer, but because of dissatisfaction expressed during the assessment by those in charge the rehabilitative measures were ineffective, and Dr Corry called a halt to the programme. Dr Fitt referred the plaintiff back to Dr Chandran, commenting that the rehabilitative programme had been a fiasco because of pain felt in trying to carry out the tasks set. Dr Fitt noted that by that stage the backache was persistent and the plaintiff could only "walk or waddle" for a period of ten minutes at a time.

15. Dr Fitt noted on 28 September 1988 that the plaintiff was considering "moving to Bundaberg". Her level of pain and range of activities continued as previously. On 10 November 1988 Dr Fitt noted that the plaintiff had been informed by the defendant that her wages (more likely her compensation) would be discontinued and that this had concerned the plaintiff and "caused upset in her back". The doctor noticed that she was hobbling and on 16 November 1988, there being no evidence of any fresh injury, Dr Fitt had the impression that the recurrent back trouble was "due to emotional upset". On 24 November 1988 it appears that she was referred for physiotherapy, Dr Fitt noting "having 'the works' with Y. Daniell". The notes from Dr Fitt indicated the plaintiff continued in much the same condition for the rest of the year and into 1989. He noted in particular the unusual gait of the plaintiff. On 9 February 1989 Dr Fitt noted that he advised the plaintiff to quit the work assessment programme with Dr Corry if it was too much for her. On 3 May 1989 Dr Fitt noted that the plaintiff was to be retired from the defendant from the middle of the month and that she would then be the "employee of insurance company". She was finding it difficult to make ends meet, particularly because her husband who "is a painter" was "out of work too". She was advised to be guided by her solicitor and another appointment was made to see Dr Chandran. On 12 July 1989 Dr Fitt noted the plaintiff had driven to Bundaberg for a five day holiday and had to lie down in the back of the car during the trip. Otherwise the plaintiff's condition remained basically the same during 1989.

16. However, there was an event towards the end of 1989 which has some potential significance and that is that the plaintiff had a miscarriage after three months' pregnancy. Dr Fitt's notes come to an end at this stage.

17. The plaintiff and her family moved to Bundaberg where it was hoped that her husband would succeed in finding work and that the climate would assist the plaintiff's back. Unfortunately neither hope was realised. The plaintiff continued to have medical treatment whilst in Queensland. Her general practitioner in Bundaberg was Dr Carr. He referred her to a neurosurgeon in Brisbane, Dr Weidmann. Dr Weidmann's report indicates that the plaintiff was complaining of pain not only in the lower back but also radiating down both legs. Dr Weidmann viewed the CT scan and thought that it was almost within limits for a person of the plaintiff's age. The plaintiff told Dr Weidmann that her husband did not work and stayed at home to look after her. She regarded her problems as slowly becoming worse. Dr Weidmann said that "there was a significant psychological overlay to her pain perception and that she seemed very happily entrenched in the invalid role".

18. In a comprehensive review on 3 September 1990 Dr Corry reported that the plaintiff felt that her symptoms were gradually getting worse, but that she had better control of her pain since moving to a warmer climate. There was consistent pain in her lower back and she was receiving physiotherapy for it. Pain in the back of both heels continued and she had been supplied with special footware and orthotics. She was having physiotherapy daily as well as daily medication and occasional sedatives at night. She was walking three or four times a day for fifteen minutes at a time which was her limit. Her household activity was limited to simple light tasks. X-rays taken early in 1990 did not show any significant change since previous x-rays. Significantly, Dr Corry expressed the view that the further assessment of her case confirmed his earlier opinion that there was degenerative disc disease and further he considered that the deterioration of the plaintiff's symptom level was probably associated with the natural degenerative processes. He thought that the prognosis was poor. He also considered that although surgery could possibly be successful in reducing the level of pain, it was reasonable for her to continue her programme of physiotherapy and medication.

19. In October 1990 the plaintiff was examined on behalf of the defendant by Dr John Wright, a consultant surgeon, and Dr J.J. Skapinker, a neurosurgeon. Dr Wright considered it almost incredible that the plaintiff had had physiotherapy intermittently for three years and was still undergoing physiotherapy five days a week. He did not think that the trolley incident could have produced a disc injury. He thought that the complaints of the plaintiff relating to the soles of her feet, heels and upper body could have no relationship with any of the work-related incidents that had occurred, that the plaintiff had a "whole-of-life state of degenerative change in the lumbar discs and in the spine generally", and that none of the incidents that she described could really be regarded as the origin of any particular disc injury. I note that the plaintiff told Dr Wright that she had not driven a car since November 1987. Dr Skapinker also took a sceptical view of the plaintiff's claims. He noted with surprise that the plaintiff said that traction during physiotherapy "gave her a headache", that it was obvious that physiotherapy was of no assistance to the plaintiff, that there were inconsistent responses to clinical testing in straight leg raising. Dr Skapinker thought that the 1987 incident at the most led to a muscular ligamentous strain and a recovery within six to twelve weeks at the most. As far as Dr Skapinker is concerned, it seems that the issue was not so much the relationship between the plaintiff's condition and her injury, but whether her complaints were genuine or reasonable. His conclusion was that she had made an uneventful recovery and was fit for all pre-accident employment duties.

20. Dr Skapinker and Dr Wright both gave unsworn evidence over the telephone and were cross-examined. The transcript of their evidence is treated as a statement made under sub-s.29(3) of the Evidence Act 1971. I cannot imagine that the appearance of either doctor in the witness box would have made his evidence more credible or less.

21. Dr Raymond Newcombe, neurosurgeon of Canberra, saw the plaintiff on 30 October 1990. He viewed the x-rays taken in February 1990, noted that the plaintiff was complaining of radiating pain down to the big toes in both feet, accepted that on the history the plaintiff had sustained sciatica for the first time after the September 1987 incident and concluded that there was a disc bulge due to that incident leading to a nerve-root disturbance at the L5 level.

22. In a report dated 13 December 1990 Dr Corry expressed the view that the degenerative disc disease which pre-existed the several lifting strains at work rendered the plaintiff's spine more susceptible to injury, an opinion which I accept and which assists in my reaching the conclusion that the plaintiff did in fact suffer some sort of injury to her lower back on 29 September 1987. However, Dr Corry in his report of 13 December 1990 went on to say that if there was a more recent deterioration in her symptoms, it related to the "natural history of progressive degenerative order, rather than to specific effects from the injuries reported in 1985 and 1987".

23. The plaintiff returned to Canberra after compensation ceased to be paid to her in May 1991. She went on to social security benefits and has continued to support herself from that source. Her husband had limited success in obtaining work upon their return to Canberra. The marriage relationship deteriorated and the couple separated on 29 September 1991. The plaintiff and her son went to stay in a refuge for some two months and after that obtained emergency housing. The plaintiff consulted a local general practitioner, Dr Nambiar, under whose attention she remains. Dr Nambiar administered acupuncture which had some limited effect in relieving the plaintiff's symptoms. The plaintiff assists at her son's primary school as a volunteer aide twice a week for two hours on each occasion. She is proficient in several languages and teaches French to one of the classes. However, she is not a trained teacher and says that she would not be able to engage in any other sort of teaching or coaching. She also spends some time at a St. Vincent de Paul depot pricing clothing for sale. She says that she misses the challenge of work, which is no doubt true. She has applied to a special placement officer with the Commonwealth Employment Service, but no position has been found for her. She did tell Dr Skapinker that she was looking for work as a sales assistant or clerk and that she now drives a car. Dr Skapinker expressed the view that according to his observations she walks well. Essentially Dr Skapinker, who reviewed the plaintiff on 22 June 1992, has not changed his previous view. Nor has Dr Wright, who carried out a further examination on 23 June 1992.

24. Dr Newcombe saw the plaintiff on 7 June 1992. He viewed a recent CT scan of 28 April 1992, commented that it shows "a more definite" protrusion at the L4-5 level and has reached the recent conclusion that surgery would be likely to help relieve the plaintiff's symptoms and her incapacity. He has withdrawn a previous opinion that the plaintiff is likely to recover somewhat after the litigation is over and now feels that there is less of a psychological component in her case than he thought previously.

25. Dr Corry re-examined the plaintiff on 24 August 1992. He also viewed the further CT scan but did not think there was any change from the previous examinations. The plaintiff told him that she was not keen to proceed with the advice of Dr Newcombe that surgical excision of the lumbar disc protrusion be considered. Dr Corry also noted that Dr Nambiar had referred the plaintiff to Dr Sekel in Sydney, who injected steroids into the facet joints, but that only had the effect of increasing the pain. A lumbar sacral corset had been prescribed and the plaintiff said in her evidence that she was now wearing it with some slight benefit. The plaintiff was continuing with physiotherapy and medication. Dr Corry continued to be cautious about the physical origin of the plaintiff's complaints. He is still of the view that there is little evidence that the plaintiff's condition is related to any nerve-root involvement and he has suggested even further investigation, this time by way of lumbar dynamometry. That had not been carried out by the time of the hearing.

26. Dr Hugh Veness, consultant psychiatrist, delivered a very comprehensive report following his interview with the plaintiff on 10 September 1990. He rejected the view of Dr Weidmann that the plaintiff was "very happily entrenched in the invalid role" and thought that the plaintiff on the contrary showed "symptoms and signs of a reactive depression and along with this, a very low self-esteem". This coincides with my own conclusion, having seen the plaintiff in the witness box and considered her history and the medical evidence. Dr Veness referred to a factor which he considered to be of importance from the psychological perspective and that was the development of what he called an "on-going power struggle" between the plaintiff and her immediate superior at her place of work.

27. It seems to me that there is substance in this observation by Dr Veness. I conclude that the plaintiff, with some justification, prided herself in following a successful career path with a prestigious multi-national employer and had risen to what she considered to be a semi-managerial level. However, at the time of injury she had been obliged to perform duties of a less exalted nature. She had complained to management that it was causing aching in her back during the two weeks or so prior to 29 September 1987. It was the carrying out of that very task which she considered to be menial that precipitated the symptoms of which she complains. Furthermore the tasks which the employer set for her as part of a rehabilitation programme themselves exacerbated the plaintiff's symptoms, or at least she felt that they did so.

28. In addition, there have been the difficulties of the pregnancy and subsequent miscarriage. She was at that stage nearly 40 years of age. The plaintiff said in her evidence that she deliberately procured the miscarriage because she did not think that in her condition she could face the physical demands of parenthood. For this she blamed the defendant, which led only to further depression. There has been the additional factor of the breakdown of her marriage. She told doctors that her husband had left work in order to look after her. They disrupted their life in Canberra to move to Bundaberg where her husband was unable to find work and where the climate did nothing to help the plaintiff's condition.

29. The conclusion of Dr Veness, which I accept, is as follows:

"Her prognosis is guarded and she is unlikely to return to the
work force in the near future. However she has sufficient personality
strengths to learn to cope with the pain and, provided the back
position does not worsen, it is conceivable that she may be able to
re-enter the work force after further treatment and rehabilitation.
I doubt that antidepressant drugs will be of much help in her case but
supportive psychotherapy or counselling aimed at boosting her self
esteem and self confidence will be an essential ingredient in any
rehabilitation program. I anticipate this would be lengthy and take
at least two years. She would need to be eased back in the work
force, given no physically demanding duties and perhaps initially
working part-time only. Basically, this will depend on the level of
her pain state which I believe is largely organically based."

30. Another psychiatrist, Dr Jonathan Phillips, examined the plaintiff on behalf of the defendant and I think that it is significant that up to a point his views do not differ from those of Dr Veness. His conclusion is that "the disability suffered by Mrs Laxy can only in part be attributed to the various injuries which she received in the workplace". Dr Phillips says that he agrees with Dr Veness' comments that the plaintiff "has become locked in a cycle which incorporates depression, postural abnormalities and pain" and that "depression has led to a heightened awareness of pain". He concludes:

"At this point in time, Mrs Laxy's incapacity is determined
largely by her emotional state. Her depression has been caused by a
number of issues which require mention. Without doubt the various
accidents acted as trigger factors but equally important has been the
conflict which developed between Mrs Laxy and her employer. She had
hoped to work on a part-time basis, this was not
possible, she felt aggrieved and depression was then made worse.
Additional factors which must be considered include the acrimonious
breakup with her husband and the abortion which caused her
considerable stress.
As a result of these factors, Mrs Laxy developed a chronic depression
of reactive type. As typical for the disorder, she lost self esteem,
her motivation was reduced, her thoughts were focused on matters of a
negative nature and she experienced a lowered threshold to the
perception of pain. She rationalised her problems as being of a
physical nature. This is understandable but it provides an inadequate
explanation for her disability.
Mrs Laxy is now living the life of an invalid. Unwittingly she has
entered what is sometimes known as the "sick role", a situation where
ill health has become the primary focus of her existence. Whilst Mrs
Laxy probably does have some low back pain and leg pain associated
with the structural changes within her back, her disability is
predominantly caused by a chronic depression of reactive type. Her
depression, in turn, was caused by a variety of factors, most of which
were unrelated to her orthopaedic problems."

31. It is in this final sentence where I think the essential difference of the approach of Dr Veness and that of Dr Phillips lies, and it is not a question of a psychiatric or really of a medical nature. It is simply a question of fact for a lay tribunal whether the supervening factors (stress directly caused by conflict with the defendant over employment duties and rehabilitation programmes, the miscarriage and the marital breakdown) are factors which wholly or sufficiently displace the connection between the plaintiff's condition and the incident on 29 September 1987. The question is not to be resolved by scientific or medical opinion. Moreover, it must be remembered, as Dixon C.J. put it in Watts v. Rake [1960] HCA 58; (1960) 108 CLR 158 at 160, that once the plaintiff has established on the probabilities that the defendant's wrongdoing has contributed to the damage of which the plaintiff complains, then it is for the defendant to "do the disentangling" of other contributory factors which are such as to reduce or avoid the defendant's responsibility for the whole of the plaintiff's continuing condition. In the present case none of the matters referred to can be divorced from the continuing symptomatic condition in the plaintiff's spine which was established by the incident on 29 September 1987. That they are factors which aggravate the plaintiff's condition does not seem to me to require that the defendant is entitled to have them left out of account. They are none of them outside the range of foreseeability. This does not mean that the defendant is liable, for instance, for the damage constituted by the marital breakdown, but it does mean that the defendant is not entitled to rely on the marital breakdown in order to reduce its liability for the plaintiff's continuing condition.

32. On the other hand, the evidence of Dr Corry, which I have little hesitation in accepting, is that the plaintiff had for many years a degenerative condition in her spine which has given rise to symptomatology on various occasions, although prior to 29 September 1987 the symptoms always resolved after a period of time. The degenerative condition was cumulative and I accept the view of Dr Corry that the more recent deterioration in the plaintiff's symptoms in late 1990 is due partly to the progression of the disease and not wholly to the 1987 incident. Furthermore, it follows that because there was a cumulative degeneration, the plaintiff was at risk of incapacity or symptoms which would have occurred in any event without the 1987 injury. In other words, there has to be a discount according to the principles enunciated by the High Court in Malec v. J.C. Hutton Pty. Ltd. [1990] HCA 20; (1990) 169 CLR 638.

33. It also follows that I am not satisfied on the probabilities that Dr Newcombe is correct when he says that the bulge shown clearly to exist at the L4/L5 level was caused by the 1987 incident. Whatever be the exact aetiology of the plaintiff's condition, I do not pretend to know, but on the whole I think it is best explained by the account given by Dr Corry as to the physical basis, and the account given by Dr Veness as to the psychological component.

34. Accordingly, I think that although the plaintiff may have had some very slight residual earning capacity during the period in question (as indicated by her temporary return to work, frustrated as that was by her differences with her supervisor, and indicated also by her present activities at the school and the clothing depot) it is not such as to be capable of expression by me in percentage terms or monetary terms. I think that the best way it can be taken into consideration is as a discounting factor. Furthermore, there is the contingency that the plaintiff may have suffered a disabling back condition in any event. This also cannot be expressed appropriately in any way by me other than as a discounting factor.

35. As to the future, I take into account that the plaintiff was likely to have worked to an age of at least 60 but no more than 65 years if she had not been injured. The contingency of disablement through her degenerative condition again must be taken into consideration as a discounting factor, but as far as the future is concerned, there is also the evidence that from a psychological point of view the plaintiff may recover somewhat once the stress of litigation is over, and the evidence of a slightly more positive attitude developing which is exemplified by the fact that she is looking for work. She is a person with considerable work skills, although they have not been put into use for a long time. She appears intelligent and is articulate. There is also the possibility, although a very slim one, that if further investigations were made into her condition as Dr Corry suggests, it could be that surgery might be envisaged with greater optimism. Drawing a number of these factors together, I take the view that there is some prospect that the plaintiff, once she has behind her the security of an award of damages, will overcome some of her psychological difficulties, although to what extent it is impossible to be certain. However, once that step is taken, the physical aspects of her condition may become less disabling and even cease to be disabling to any substantial extent. Ultimately, I am not satisfied on the probabilities that the effects of the incident in September 1987 will be permanent. I propose to assess damages for the future on the basis that the effects of the injury for which the defendant is responsible will largely be resolved within three years and cease altogether within five years.

36. For pain and suffering and loss of enjoyment of life I award the sum of $40,000 as to which I apportion $30,000 for the past and for interest. Interest calculated at 4 per cent per annum and reduced by half is $3,050 and this will be included in the award of damages.

37. It was estimated that the plaintiff, had she remained in employment with the defendant from the time of the incident until the date of hearing would have earned a net sum of $108,361.24 during the times she was in fact absent from duty. In respect of the factors I have mentioned, I would discount this figure to $80,000.

38. For future loss I note that the plaintiff's estimated net wage had she remained in the employ of the defendant would have been $494 per week at the time of hearing. Projecting this figure into the future in the way I have indicated, I award a round sum of $70,000 for future loss of earning capacity.

39. The plaintiff's out-of-pocket expenses have been agreed at $25,422. The tax paid by the plaintiff on worker's compensation paid to her, the Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438 component, is agreed at $8,078. The total compensation paid to her was $45,174, and it is appropriate to award interest on the difference between that amount and my award for past loss of earning capacity. I calculate that interest at an average rate of 15 per cent and reduce the result by half, giving a further interest component to the award of $13,277.41.

40. The total is therefore as follows:

Pain and suffering and loss of
enjoyment of life $ 40,000.00
Past loss of earning capacity $ 80,000.00
Future loss of earning capacity $ 70,000.00
Out-of-pocket expenses $ 25,422.00
Fox v. Wood $ 8,078.00
Total interest $ 16,327.41
Total: $239,827.41

41. This appears to me to be an appropriate sum to award the plaintiff in what is a difficult case of assessment of damages having regard to the several imponderable factors involved.

42. Unless the parties wish to be heard, I propose to order that the defendant pay the plaintiff's costs.