Denis Stepanovic By His Next Friend and Father Dragisa Stepanovic v the Australian Capital Territory [1995] ACTSC 115 (3 November 1995)

SUPREME COURT OF THE ACT

DENIS STEPANOVIC by his next friend and father DRAGISA STEPANOVIC v. THE
AUSTRALIAN CAPITAL TERRITORY
No. SC 296 of 1987
Number of pages - 11
Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Negligence - injury - causal connection - keloid scar forming after injection of vaccine - whether evidence sufficient to establish connection between injection and scar - it is.

Negligence - professional negligence of nurse - vicarious negligence of health authority - whether evidence sufficient to establish lack of reasonable care on part of nurse - it is.

Kondis v. State Transport Authority [1984] HCA 61; (1984) 154 CLR 672

D. Weedon, The Skin

HEARING

CANBERRA, 13 and 14 December 1994
3:11:1995

Counsel for the plaintiff: Mr. G. Lunney

Solicitors for the plaintiff: Messrs Romano and Co.

Counsel for the defendant: Mr. R.T. Bayliss

Solicitors for the defendant: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:
There be judgment for the plaintiff in the sum of $42,000.00.

DECISION

MILES CJ On 8 June 1982, when nearly 6 years of age, the plaintiff was taken by his mother to the Phillip Health Centre for immunisation against diphtheria and tetanus. The Centre was run by the Australian Capital Territory Health Authority, since abolished. A nurse gave him an injection of vaccine. Some time later a keloid scar developed on the left upper arm and shoulder at or near the injection site. He now sues the defendant (as successor to the Health Authority) in negligence and in two separate additional counts for assault and for battery. The counts in assault and battery were abandoned during counsel's addresses at the end of the case. They should never have been included in the statement of claim.

2. There are two substantial issues for determination on which the plaintiff bears the onus. In the circumstances of the present case the issue of causation needs to be resolved before the issue of lack of reasonable care. Did the injection contribute to the formation of the keloid scar? If so, was the immunisation procedure carried out without reasonable care and skill? Both questions turn on where it was exactly on the plaintiff's arm that the needle was inserted. The particulars of negligence allege that the injection was given "into the shoulder and not into the muscle". The exact site of entry of the needle is impossible to determine.

3. The Health Authority's records (not easy to understand) show that he first had an injection for immunisation against diphtheria and tetanus (CDT) when only a few months old. He had an injection against poliomyelitis in 1976. Boosters were given on 19 January 1981. On that date his father signed a child health immunisation record card consenting to the plaintiff being immunised. There was a further injection against polio on 23 March 1981. The plaintiff displayed no adverse reactions to any of these earlier injections. The child health immunisation record card invited the parent to answer questions about the child's history and the family's history, but this section of the card was not completed. There is no evidence that the plaintiff's parents were encouraged to complete it or that anyone offered to assist them to do so. The father claimed in an answer to interrogatories that the card was merely presented to him to sign, which he did in ignorance of what it was all about. The answers to interrogatories do not display any lack of understanding of English. The father's professed ignorance of what he was signing is difficult to understand. However, nothing turns on it because the assault and battery counts have been abandoned and there was no aspect of the child's history or family history which required disclosure.

4. In another answer to interrogatories given by the father, he stated that he and his wife accepted that the plaintiff "had to have immunisation" and that they depended on the defendant for proper administration of the appropriate vaccine.

5. I am not aware of the basis, statutory or otherwise, of the compulsory nature of child immunisation programs and I was not referred to any. Nor was I referred to any of the functions, statutory or otherwise, of the Health Authority in 1982 or at any other time. Whether or not the father's belief was correct, it is common ground that the Health Authority had the power to conduct child immunisation programs and was under a duty to ensure that those programs were carried out with due care for the health and safety of the child. If they had been carried out in a hospital, that duty was non-delegable: Kondis v. State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 at 685, per Mason J. In any event, the Health Authority, being a fictitious corporation, could act only by means of natural persons. It did so for the purpose of immunisation by means of qualified nurses whom it employed to provide the service in clinics such as that at the Phillip Health Centre. Each of the nurses was under a duty to carry out immunisation procedures with the care and skill expected of a professionally trained and experienced nursing practitioner. The nurses were employees and not sub-contractors. Notwithstanding the professional nature of the work, the Health Authority was vicariously liable for any breach of that duty by the nurse.

6. The Health Centre recommended to its nursing staff certain immunisation procedures in a document which is part of Exhibit G. The recommendations of the National Health and Medical Research Council on immunisation procedures were also part of Exhibit G. The defendant relied on compliance with both sets of recommendations. I was not referred to any particular part of either document. Apart from what follows and as far as I am aware, there is nothing in either document which is of particular assistance in the present case.

7. Paragraphs 5 and 6 of the Health Authority's own recommendations as to the administration of vaccines require the nurse to "choose the appropriate site" and that "for intramuscular injection the needle is inserted at 90 degree angle". There is also some text appearing at the foot of an illustrated page, quoting an American publication. It states that the "injection site in deltoid muscle is approximately 1.1/2 to 2 inches below the acromion process". The acromion process is part of the shoulder joint, situated at the outside upper point of the shoulder blade or scapula. The deltoid muscle and other muscles and ligaments of the upper arm are anchored to it. The illustration mentioned distinguishes between subcutaneous injection, intracutaneous injection and intramuscular injection. The terms "acromion" and "acromion process" appear to be used interchangeably. The illustration also suggests that the highest point of the appropriate area for the injection site may be ascertained by holding three fingers (presumably of the nurse's hand) horizontally against the patient's right upper arm, with the top edge of the forefinger against the end of the acromion process. The recommendations of the National Health and Medical Research Council provide that for children between two months and eight years the immunisation should be carried out by "deep subcutaneous or intramuscular injection". There was no dispute that reasonable care on the part of a nurse administering the CDT vaccine required compliance with both sets of recommendations, although there was no allegation to that effect in the particulars of negligence.

8. The plaintiff has no memory of the immunisation at all. The plaintiff's mother and father were both present but neither was able to identify the nurse who carried out the immunisation. The writ was not issued until 17 March 1987, nearly five years afterwards. The defendant's records disclose only that there were two nurses on duty at the time, Doreen Margaret Brown and Marjorie Cox. According to the usual practice, one nurse administered the injection to the children and the other assisted with observation and the clerical part of the procedure from a position only a few feet away. Doreen Brown was not available to give evidence, but no inference is to be drawn from her absence. She was an experienced nurse and it is highly likely that if she had given evidence, it would have been no different in any material respect from that given by Marjorie Cox.

9. Sister Cox obtained her general nursing certificate at the Royal Adelaide Hospital in December 1968 and had performed nursing duties (with particular experience in immunisation) almost continually from then until the incident involving the plaintiff. She joined the predecessor of the Health Authority in 1976. She was employed as a child health nurse. Her duties included the conducting of the immunisation clinic for school children. For this purpose she was already well qualified and experienced. The claim of the defendant that she had performed more than one thousand immunisations or injections appears quite modest. It is more likely to have been several thousand. The procedure in relation to the plaintiff on 8 June 1982, on any account, went uneventfully and it is not surprising that Sister Cox, whether she administered the injection herself or assisted Sister Brown, has no memory of it.

10. In her evidence, Sister Cox described how it was the practice followed by her and Sister Brown to have a child placed on the seated parent's knees with the child sitting more or less at a right angle to the parent and with the exposed arm or shoulder facing outward towards the nurse. (Successive vaccinations are apparently administered to each arm alternately at intervals of some years). The parent would restrain the child by taking the child's elbow in one hand and placing the other hand or arm across the top of the child's exposed shoulder.

11. Sister Cox described the usual method of vaccine injection as follows. The needle would be inserted by the nurse into the deltoid muscle of the child's arm at a site which she indicated was 4 to 5 centimetres below the acromion. The nurse held the syringe in her right hand. The fingers of the nurse's left hand rested horizontally just below the tip of the child's shoulder, ready to guide the shaft of the needle into the child's upper arm. The nurse then used her right fingers and thumb to insert the needle between two of the fingers of her left hand into the child's upper arm. In the words of the witness "with these two (left) fingers you hold the actual plastic part of the needle into the skin so it makes sure it is deep intramuscular and if the child moves you can actually move with the child so it gives you some leeway". Sister Cox considered that it was impossible to give the injection into the "top of the shoulder", both because that is where the arm of the hand of the parent is normally placed and because the bony point of the shoulder (where there is absence of muscle) would not receive the needle to the required depth. The appropriate needle was described as 26 gauge.

12. In all her experience, Sister Cox had never heard of a complication arising from an immunisation procedure, whether by way of scarring or otherwise, except for the occurrence of a "small lump" which could be felt and observed a few weeks later. She did not learn of the plaintiff's complaint until some five years after the event, presumably after the issue of the writ. In the case of error occurring, it was the practice of the Health Authority nurses to complete an incident report. Sister Cox was not aware of any incident report in relation to the plaintiff and the defendant's records did not include any such report.

13. Sister Cox displayed a clear appreciation of the difference between a subcutaneous injection and an intramuscular injection and of the need to administer the CDT injection deep into the deltoid muscle at a 90( angle at the appropriate site. She said that, depending on the size of the arm, the needle should be inserted 4 to 5 centimetres below the acromion process but that in the case of a baby the appropriate site in the deltoid muscle was 1 to 2 centimetres below the acromion. In the case of a 5 year old child, she considered that there was not likely to be much muscle resistance. She thought that with experience a nurse could assess the amount of force needed for a particular injection into the deltoid muscle. She also acknowledged that the presence of the nurse's left hand might obscure the exact location of the entry point of the needle in relation to the acromion.

14. The evidence of Sister Cox is relevant not only to the events on the day in question but also to the practices adopted by the Health Authorities and to proper professional practice generally. In relation to the last aspect there is nothing in her evidence (or the medical evidence) to contradict the recommendations of the Phillip Health Centre and of the National Health Medical Research Council.

15. The child's mother, Zorikas Stepanovic, gave evidence that Denis and his brother and sister had had the routine injections for the purpose of attending school and no complications had arisen except after the injection to Denis' left shoulder. She was given some explanation about the injection at the Health Centre. Her evidence on this was very vague. She said that her English was "not very good at all" at the time and that as to her husband, "well, he speak English, yes". She said that she held Denis whilst he was given the injection, and that he was crying a little. She averted her gaze at the time the needle was inserted. She said that in the days after the injection she noticed a small, red lump at the point of the shoulder which, after two or three weeks, began to grow in size. Denis started making complaints about it and rubbing it as if it were itchy. She said that she took him to Dr Quach in June 1984 (sic). Dr Quach prescribed creams. They did not seem to assist and she was referred to Dr James. Denis was admitted to the Royal Canberra Hospital in April 1986 for four days for removal of the scar. (Her evidence to that point had been in terms of a lump rather than of a scar.) The scar was about the size of a 50 cent coin in the same position as the lump. The operation appeared to her to be temporarily successful, but the scar started "growing back". She saw an occupational therapist, Ms. Cath Andrews, who put some cream and a bandage on the scar.

16. In cross-examination Mrs. Stepanovic insisted that the lump became visible after two or three weeks subsequent to the immunisation.

17. The records of Dr Quach show that Mrs. Stepanovic attended with Denis for the first time in November 1982, but at that stage she did not discuss with the doctor anything about a lump on Denis' shoulder. That matter was not raised until January 1983, when Dr Quach referred her to Dr James.

18. Denis' father, Mr. Dragisa Stepanovic, gave evidence that he was present at the time of the immunisation and saw a nurse give the injection "pretty high on the left shoulder". He indicated the location of the injection as at the point of the shoulder. He noticed something wrong straight away or after a few days and a lump like a blister formed "exactly where the injection was". In answers to interrogatories, Mr. Stepanovic said that the scar was first noticed when Denis complained of itching around the area of the scar about three to six months later after immunisation. In his evidence, he said that he thought that it was much earlier.

19. Dr Quach recorded that the plaintiff first presented with a keloid lump at the injection site in January 1983 and that he referred the plaintiff to Dr James on 18 June 1984 with a view to having the keloid scar injected with cortisone in order to soften it.

20. Dr James recorded that he first saw the plaintiff on 3 September 1984 for what appeared to be "an active scar on the point of the left shoulder". Dr James said that this was at the site of an immunisation injection two years previously. Dr James injected the scar. There was no evidence as to the nature of the injection by Dr James. Presumably it was a subcutaneous injection. No issue was raised in the case concerning the possibility that the injection by Dr James was inappropriate or contributed to the further development of the scar.

21. The plaintiff was reviewed by Dr James on 9 November 1984 with a view to further injection, but the plaintiff declined to accept that treatment. When next seen by Dr James on 3 March 1986 the scar had "not only migrated onto the shoulder" but had increased considerably in size to about 3.5 centimetres in diameter and 8 millimetres deep. Dr James thought that the formation of the keloid scar was directly related to the immunisation injection, possibly because the injection was "into the skin or sub-dermally".

22. On 24 April 1986 Dr James operated to shave the scar close to the wound with a very thin skin graft from the left thigh, but within a month the scar began to grow again. The plaintiff was referred to an occupational therapist at Royal Canberra Hospital for conservative scar management but that was unsuccessful and by September 1994 the scar measured 8 by 6 centimetres and was 1 centimetre thick. Dr James' view at that stage was that any further surgery had to wait until the child's skeletal growth was complete. He estimated the chances of success following further operation at 60 to 70 percent and some cosmetic defect will always remain. If the operation is not undertaken the scar will, according to Dr James, soften over five to twenty years but always remain as a thick plaque on the shoulder.

23. As to causation, Dr James had no doubt that the scarring was in consequence of the injection in 1982 placed into tissue on the upper and outer aspect of the left shoulder in an area known to be of high risk for hypertrophic scarring in persons so susceptible. Dr James considered that the initial site of the scarring, just below the acromion process, would suggest that the injection was placed higher than the recommended site and that "even if this were not the case, injecting into an area so prone to hypertrophic scarring would seem to be an unacceptable practice".

24. In his evidence to the Court, Dr James conceded that he was reliant on the plaintiff's parents for fixing the location of the site of the injection. He said that there is always a risk of an injection causing hypertrophic scarring when an immunisation injection is given at or near the point of the shoulder because the area is "notoriously liable" to such scarring. Hypertrophic scarring, according to Dr James, is "terribly common" as a result of immunisation so long as the injection is into the skin only. If the injection is deep into the muscle, then the trauma necessary to the skin to cause scarring will be absent. Dr James appeared to accept that even if the needle were inserted deep into deltoid muscle, damage to the skin might occur by reason of the release of vaccine too superficially or by an already inflammatory response or if there is some "leakage" of the vaccine near the skin. Dr James said that his opinion was not formed as a result of searching "for literature". In reference to his own experience he said that most of the scarring he had seen following vaccination was from the use of smallpox vaccine.

25. To some extent the evidence of Dr Quach, a general practitioner of twenty-four years experience, was similar to that of Dr James. Dr Quach considered that a reaction by way of "keloid lump" is not uncommon following immunisation for diphtheria where the injection is subcutaneous or not deep enough. Dr Quach was asked about whether the lump he saw, about the size of a pea, was in the "upper shoulder, the deltoid muscle region", to which he replied "up in that area, yes". Dr Quach's view then would appear to be not so much that the needle was inserted at the wrong site, but that the injection was not sufficiently deep into the deltoid muscle.

26. In striking contrast to the opinions of Dr James and Dr Quach was that of Dr Weedon. There is no disrespect to either of the former in saying that Dr Weedon has outstanding qualifications in the fields of pathology and dermatology. Dermopathology, as it is called, is the particular specialised field of medicine which is concerned with scarring of the skin. In the material collected for his recent textbook entitled The Skin, Dr Weedon was able to find no reference to keloid scarring occurring as a result of CDT immunisation. He made a further search on computer line, including the main worldwide data base held at the National Library of Medicine in Washington DC and was unable to find any reference to such causal connection. Dr Weedon expressed the view based on his own experience that even subcutaneous injection does not give rise to keloid scarring, but (and only very rarely) to a lump in the nature of aluminium granulomas, which can be removed surgically. Dr Weedon said that the injection of live vaccine such as smallpox or BCG (tuberculosis) vaccine can also produce scarring, but that CDT is not a live vaccine.

27. In cross-examination Dr Weedon accepted, as he had to, that the plaintiff's shoulder bore a large and obvious keloid scar. He said that the factors which go to producing such a scar following injection include individual and racial disposition and wound tension. In his pathology practice over half a million patients have been injected by means of a 26 gauge needle and not one has developed a keloid complication. Dr Weedon considered that the most likely cause of such scarring as suffered by the plaintiff is wound tension and that such scarring is the more likely the closer the injection site is to the acromion process.

28. A report was tendered from Dr Freeman, who was not called to give evidence. Dr Freeman examined the plaintiff on 7 June 1993. He expressed the view that the centre of the keloid was "very close" to the acromion process and that it is possible that the injection was closer to the "muscle insertion" (the term was not explained and is not familiar to me) rather than into the maximum bulk of the muscle. Dr Freeman would not expect the injection in that location to "cause keloid scarring, as keloid scarring and hypertrophic scarring occurs in the dermis and not in the subcutaneous tissue, muscle or muscle insertions, unless CDT vaccine was deposited in the dermis itself". A scarring reaction would be more pronounced in someone with a genetic predisposition towards such scarring. Dr Freeman thought that such predisposition was the "main cause" of the plaintiff's scarring and that he could only speculate as to whether the injection technique itself or merely the normal puncturing of the skin put the keloid reaction in train.

29. Choosing between the two bodies of medical opinion is an extremely difficult task, and not made easier by the fact that the specialists practise in different areas of medicine. Dr James is a practitioner in reconstructive or plastic surgery. Dr Freeman is a dermatologist. Dr Weedon's field is pathology with particular emphasis on the pathology of conditions of the skin, including scarring. What the doctors have (or lack) in common with respect to experience of keloid scar formation following immunisation, is that none of them carries out or is present at the time of injection. Each of them is dependent upon what they are told by others as to the manner and site of injection. A doctor who treats a patient for a keloid scar following immunisation by some one else is able to observe personally the location of the scar. On the other hand, unless there is some observable evidence as to the entry point of the needle (which there is not in the present case) the doctor is totally reliant upon what he or she is told about the location of the injection. The information given by the informant may or may not be accurate, having regard to the low level of probability that the informant would have made an exact observation about the precise point of entry and having regard to potentially crucial distances measured in millimetres. Perhaps that is why the medical literature is devoid of any mention of evidence which establishes a connection between immunisation and keloid scar: the reliability of information on the location of the site of injection is not likely to be of a high order.

30. On the other hand, Dr Weedon concedes that the closer the injection is to the acromion process, the more likely it is that any abnormal state caused by injection or the entry of foreign bodies in tissue adjacent to the skin will continue and result ultimately in keloid scar formation, not so much because of the absence of muscle as the mobility of the acromion process (a kind of joint) tending to prevent healing. In my view, it is established on the probabilities that the nurse who injected the plaintiff's arm did so at a site so close to the acromion process that it put in train this process and that over a period of at least several months (a period much longer than the evidence of the plaintiff's parents would have it) the hypertrophic scarring developed and continued to develop. The evidence is that between November 1984 and March 1986 it developed to the extent of giving the appearance of migrating to the shoulder but, in my view, that evidence does not stand in the way of a finding that the scarring was in a causal sense related to the immunisation procedure. It may well have been that the plaintiff's reaction was idiosyncratic and that the vast majority of other children receiving an injection in the same place would not have developed the condition but I do not think that that factor means that the injury was unforeseeable. The practice and recommendation that the needle should be inserted deep into the deltoid muscle at a site two to four centimetres below the acromion process indicates that injury of some sort was foreseeable to the Health Authority, even if the pathology and aetiology is not well understood. The question remains whether an injection which produces the sort of result that occurred in the case of the plaintiff displays a lack of reasonable care.

31. In view of the absence of complaint to Dr Quach of anything in the nature of a lump or scar before January 1983 and of the inconsistent evidence of the parents as to when they first noticed a scar, I do not accept that it is probable that anything in the nature of a keloid formation, whether scar or lump, was observed until after the visit to Dr Quach in November 1982, at least five months after the event. However, I do accept that a lump appeared, as is not unusual following immunisation, some two or three weeks after the event. It is likely that the lump or part of it was located at the injection site. I accept also that the child complained of itching in the area of the injection, which raises the distinct likelihood of scratching on his part. Having regard to those factors and the mobility of the child's shoulder, it seems to me that there is no explanation for development of the scar in the absence of some connection with the lump which was clearly caused by the injection. I acknowledge that the formation of a lump can occur even when the injection is properly administered, but the unusual development which followed hard on the emergence of the lump suggests, in my view, that it is more probable than not that that development was contributed to by the vaccine being released at insufficient depth into the deltoid muscle, or that the needle was inserted too close to the acromion process, or that it was inserted at a shallow angle, or that the vaccine was released at the time when the needle was being inserted or being extracted in the subcutaneous layer, or a combination of any of these factors. This finding accommodates the opinion of Dr Weedon that a tension wound at a joint is a common cause for failure of the wound in that vicinity to heal. The finding is also consistent with the opinion expressed by Dr Freeman, a dermatologist. In my view, this is a case in which the precise issue of causation falls to be determined by the expert opinions of Dr Weedon and Dr Freeman. Those opinions prevail over those of Dr James, a plastic surgeon, and of Dr Quach, a general practitioner, despite the strongly held views of those doctors. The views of Dr James and Dr Quach may be influenced by experience of scars following injection with live vaccine. That possibility was raised in the case but hardly explored. In the event I find that there is a causal link between the immunisation and the formation of the keloid scar on the plaintiff's left arm and shoulder.

32. In relation to the hypothesis that the injection was administered closer to the acromion process than the recommended site, it may well be that in the case of a small child, particular care needs to be taken because the length of the child's upper arm is likely to be less than that of an adult. However, this issue also was not addressed by the doctors or by counsel and I disregard it. It may also be possible that the exact site of insertion of the needle was obscured at the time by the fingers of the nurse's left hand, and although this hypothesis was also not addressed, I think that it is a possibility not to be overlooked. I have already mentioned the possibility that although the needle reached deep into the deltoid muscle, the release of the vaccine took place when the tip of the needle was passing through the subcutaneous layer adjacent to the muscle.

33. The issue is then whether the likely hypothesis of the insertion of the needle at a point closer to the acromion process than the site recommended by the Health Authority or at an insufficient depth, or the release of vaccine at an insufficient depth, or any one or more of them, is adequate evidence of negligence on the part of the nurse, whoever she was. Not without considerable hesitation I conclude that it probably is. The point is not whether Sister Cox or Sister Brown, for it must have been one of them, was a careless nurse. Nor is it pertinent to assert that any competent nursing practitioner may make an accidental slip in the course of carrying out thousands of procedures over a period of many years otherwise without mishap. Such a consideration is no more persuasive in the present case than it would be in the case of an experienced taxi driver or bus driver who seeks to be excused from colliding with another vehicle on the ground that such an incident is sooner or later almost inevitable in the course of a driving career despite the utmost exercise of care.

34. The fact that the most competent of practitioners make mistakes does not avoid the conclusion that at the relevant time the mistake may involve a lack of reasonable care, no matter how small or fleeting. On the other hand, I reject entirely the submission made on behalf of the plaintiff that the nurse who administered the injection was "clearly very negligent". The negligence is not very clear at all and what negligence can be gleaned was of a very low order, but negligence on the balance of probabilities sufficient to prove the plaintiff's entitlement to judgment is established.

35. There was also a claim based on a failure to warn of the possibility of injury similar to that which the plaintiff suffered. However, the incidence of such injury is extremely low and the plaintiff's mother said that she did not know what she would have done if the warning were given. The father accepted that the immunisation procedure was compulsory. Whether it was legally compulsory or not, the defendant had a duty in the interest of public health not to deter people from immunisation by inducing exaggerated fears of very remote dangers. The claim was hardly pressed and I find that the absence of warning did not constitute a failure in any relevant sense.

36. I turn now to damages.

37. The scar now measures about 50 by 80 millimetres. It is oval to rectangular in shape. It is slightly red around the edges. Most of it is on the upper arm and about a quarter of it is on the shoulder. It is probably quite unsightly to some people. The plaintiff contemplates operation in two or three years time. The cost of the operation is approximately $1,500 with a 70 percent chance of success. However, there will always be some cosmetic blemish and it is impossible to predict what the blemish will look like except that it should be about the same size as the present disfigurement.

38. The scar remains itchy and tender if struck. The plaintiff gave up soccer some years ago for fear of it being hurt. Clearly he would be barred from contact sport if he were otherwise interested in participating. The scar causes no restriction of movement in the shoulder but it occasionally aches with lifting. The plaintiff is embarrassed by the scar in his dealings with the opposite sex and would be embarrassed if he went swimming or to the beach or showered in company. There is also a small cosmetic blemish on the leg, the donor site for the unsuccessful graft, but it is very faint.

39. The plaintiff, now 19 years old, works at two part-time jobs as a cleaner at night. The harness of the cleaning equipment irritates the scar. He is probably unfit for full-time work in this capacity unless the scar is made less tender. There is no evidence of any actual loss of earning capacity in the past.

40. Doing the best I can on the material before me and allowing for a likely operation in two or three years, the success of which cannot be guaranteed and which will leave the plaintiff with some cosmetic blemish, I award $25,000 for pain and suffering and loss of enjoyment of life ($15,000 for the past). Although the evidence is meagre in the extreme, I award $10,000 as a buffer for the range of occupations for which the plaintiff is likely to be unfit, jobs requiring repeated heavy lifting and carrying loads on the left shoulder, jobs in which there is a risk of bumping the left shoulder or upper arm. I allow $1,000 for the cost of the possible future operation. As a matter of discretion and having regard to the unexplained delay in pursuing the case, I allow a lump sum in lieu of interest on the past component of general damages at $6,000 The total is $42,000, which appears to be an appropriate sum to award the plaintiff in all the circumstances.

41. Unless the parties wish to be heard, I propose to order that the defendant pay the plaintiff's costs on the Supreme Court scale, except for the costs associated with the counts in assault and battery for which the plaintiff should pay the defendant's costs.