Anneliese Tremayne v Commonwealth of Australia [1995] ACTSC 75 (18 July 1995)

SUPREME COURT OF THE ACT

ANNELIESE TREMAYNE v. COMMONWEALTH OF AUSTRALIA
No. SC1150 of 1980
Number of pages - 13
Worker's Compensation - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Worker's Compensation - plaintiff injured neck during course of employment - accident due to negligence of defendant employer in failing to ensure safe work environment - defendant should have taken steps to eliminate obvious risks of danger - no point of principle.

Damages - examination of nature of injury or disability - examination of medical evidence - continuing disability and inability to resume full time employment as clerk - general damages - past wage loss - future wage loss - Fox v Wood component - no point of principle.

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

HEARING

CANBERRA, 15-16 May 1995
18:7:1995

Counsel for the Plaintiff: Mr R Crowe
Instructing solicitors: Macphillamy Cummins and Gibson/

Sly and Weigall

Counsel for the Defendant: Mr C Callaway QC with Ms J Gleeson

Instructing solicitors: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

There be judgment for the plaintiff in the sum of $536,307.08.

DECISION

HIGGINS J On 31 May 1974, the plaintiff was employed by the defendant as an indexing clerk in the Treasury. She was required to index and log all incoming correspondence. It was necessary to relate correspondence to existing files, if any, and if none relevant existed, authorise new files.

2. Her work station comprised a card index machine with a writing surface. The card index was mechanically driven. The writing surface was about head high. The plaintiff is not much beyond 150cm in height. She was supplied with a chair to sit on. It was a typist's chair with an adjustable back but no arms. To achieve a height at which she could work whilst sitting, it was necessary to wind the chair up to its maximum height. Her feet were then about 10cm off the ground. The floor was smooth linoleum or vinyl tiles. The chair base was four pronged and on castors.

3. There was also an old index tray for earlier reference cards on the side of the newer index machine. It was an "L" formation. If access was desired to the older reference cards, the plaintiff had to push off from her position at the new machine and roll the chair about 45cm over to the old filing tray.

4. She had, she said, complained to her supervisor about this clearly unsatisfactory situation. Her evidence was:

I told him I was too small, I was too short for the chair, and he
told me to stop griping or else he'd take me off higher duties, and
use the phone books like everyone else has.

5. The reference to the "phone books" was a reference to a practice of using phone books as a foot rest. As it happened, the use or otherwise of phone books would not have prevented the event which occurred. The accident occurred when, during the day, the plaintiff needed to access the old file register. She attempted to push over to it. Then, as she described it:

...I pushed the chair back. It didn't seem to want to move so I
pulled it back in again gently and then pushed it again and I just
flipped backwards. I threw out my arms and hurt my neck.

6. Simply put, the chair overbalanced. In my opinion that was an obvious risk. No doubt, absent some slight sticking of the castors, the risk was minimal. However, if anything, even if misjudgment caused a stronger than usual backward push, it was obvious that the chair was likely to overbalance. This was such an obvious risk that it does not require expert evidence to unmask it.

7. The risk could have been avoided very simply. A workstation could have been designed so as to place relevant work surfaces lower. Even to have avoided the need to cross to another file access point by consolidating old and new records would have eliminated the relevant risk.

8. It is clear that the defendant was negligent, even having regard to the lack of appreciation in 1977, of the inherent risk of the use of four pronged castors as chair bases. I have no evidence of any opinion available at that time as to the inherent risk of use thereof. The relative heights of the chair and of the plaintiff made it apparent that, should the castors stick or be otherwise impeded, the chair would tip over. The plaintiff did not have the usual margin for safety in being able to place her feet on the ground to prevent the chair tipping right over.

9. It is sufficiently obvious that the risk existed for the defendant to have been required to take reasonable steps to have reduced or eliminated it.

10. In any event, the plaintiff's evidence was that she expressly to her supervisor's attention to the shortcomings of her work station. That should have been sufficient to have drawn the defendant's attention to the need to take remedial action.

11. I am satisfied that the defendant was negligent in failing to take remedial action. It was practicable for it to have done so. But for that negligence, the plaintiff would not have fallen as she did.

12. There was nothing done or omitted to be done by the plaintiff which amounted to contributory negligence on her part.

13. I turn to the question of damages.

Damages
14. The plaintiff was born in the Netherlands on 10 December 1950. At the age of eight, she came to Australia with her family. She was educated in Australia up to second year high school. At age 15 she was employed in various retail businesses before joining the Australian Public Service in June of 1968. She was employed as a clerical assistant grade 1. Her duties were clerical in nature, filing, logging and indexing records.

15. In 1971, she resigned due to her then pregnancy. Her daughter, Nicole, was born on 6 April 1972.

16. She rejoined the public service at the end of November 1972 and was assigned to the Treasury, Management Services Branch. After performing higher duties in the office of the Secretary to the Treasury, the plaintiff was assigned to the registry of that Department in September 1973. She was the logging/indexing clerk.

17. Those were the duties the plaintiff was performing at the time of her fall on 31 May 1974. Immediately following the fall, the plaintiff found that she could not get up without assistance.

18. She was taken to, and examined at Royal Canberra Hospital. She was given pain killers to ease her neck pain. She was also given three weeks off work.

19. Upon her return to work, she continued to work in the registry area but on other duties.

20. In April 1975, the plaintiff transferred to the Bureau of Mineral Resources. She remained there performing clerical duties until October 1975. She then transferred to "Parks and Gardens" doing light gardening duties.

21. Then, in early 1976, there was an incident at work. Whilst shovelling tan bark the plaintiff "slipped a disc", as she put it, in her mid-back section.

22. She was referred to Dr Roebuck, orthopaedic surgeon, for treatment. She was admitted to hospital. After 16 days in traction, her back improved. She has had no trouble with it since.

23. In November 1976 the plaintiff returned to work, being re-deployed to the Department of Defence to perform clerical duties at the Royal Military College Library. Her duties were cataloguing and shelving books. Asked how that affected her, she replied:

I found it most awkward, most painful, and I continued
self-treatment.
... I can't look up and down. I still can't ... I had pins and
needles in my left arm, three fingertips had no sensation left, and
a burning sensation.

24. As a result of those difficulties, the plaintiff was referred to Dr Alistair Robson, a neurosurgeon. In May 1977, Dr Robson operated upon the plaintiff's neck at C5/6. There was the usual post-operative pain. After that, the plaintiff said, "... the pins and needles in my arms stopped and the burning sensation stopped". However, her neck remained 'rigid', "... just tight all the time. It just feels like there is a big knot in it".

25. Upon return to work after convalescing for three to four months, the plaintiff's duties were altered so as to reduce the frequency of duties involving shelving books.

26. In the middle of 1978, because of ongoing neck pain, Dr Hodkinson, an orthopaedic surgeon, carried out a manipulation under anaesthetic. It was not successful. The plaintiff's neck pain was exacerbated.

27. About this time the plaintiff was married but she and her husband separated after about a year.

28. The neck remained sore. There were aggravations from time to time with accidental stumbles and strains.

29. In 1982 the plaintiff transferred to the Naval Supply Directorate at Campbell Park. This was in pursuit of promotional opportunities.

30. She had a discogram in 1983. It was performed by Dr Raymond Newcombe, a neurosurgeon.

31. The plaintiff was promoted in July 1984 to the position of Clerk Class 4. She continued at that level, until she ceased work in October 1985. Up until then she said:

It was getting more awkward because I was sitting at a desk the
whole time and I didn't have the mobility I was having and I needed
lots of tablets to stay at work and stay at my desk.

The tablets were Digesics.

32. During October 1985, whilst at home, the plaintiff reached up to pull an awning down. As she described it:

My neck just sort of went 'ouch' and that was it and I was helped
inside and that was the end of me.

Her body 'seized', she said. As a result, she could not keep on working.

33. In 1986 there was a myelogram. In early 1988, the defendant terminated the plaintiff's employment on the ground of her invalidity. That decision has not been subsequently amended or revoked.

34. Although the plaintiff has had most trouble with her neck, she also claimed to have injured her lower back in the fall. It causes occasional problems but her major disability remains the state of her neck.

35. In 1991 there was an attempt to rehabilitate the plaintiff occupationally. She was assigned to perform clerical duties in the 'Department of Taxation' (Australian Taxation Office). The performance of these tasks caused the plaintiff pain but she continued to persevere until the scheme was stopped after about three months, apparently due to lack of funding.

36. The defendant has not offered the plaintiff any alternative employment since then. Indeed some representative of the defendant at the Commonwealth Employment Service told the plaintiff, so she states, that she was unemployable.

37. She did put a proposal to Comcare for funding to run a permanent retirees group but it was not approved.

38. Since her retirement, the plaintiff has kept herself occupied writing music and showing dogs. She tries to keep herself active. She also suffers from headaches "constantly".

39. The plaintiff has also been referred to Dr William Knox, a psychiatrist, and has been prescribed Prozac for depression. She has had psychological counselling for low self esteem. She does not feel as if she is a productive member of society.

40. The defendant's counsel challenged the plaintiff's account of the extent of her pain and disabilities. She was shown a surveillance video.

41. Whilst her answers were, in my view, lacking in some degree of candour, she said nothing and was shown nothing which appeared to contradict her account of her disabilities and the general effect of them.

42. It is important to ascertain the true nature and extent of the plaintiff's disabilities resulting from her fall at work.

Plaintiff's medical assessment
43. Reports from both Dr Roantree, general practitioner, of 14 September 1976 and Dr Roebuck, orthopaedic surgeon, of 2 February 1977 indicate nothing of significance followed from the plaintiff's lower back injury of 10 February 1976.

44. The first specialist examination following the fall at work in May 1974 seems to have been that of Dr Robson. He reported "obvious trouble" at C5-6. He noted "minor imperfection" at C6-7 but decided against too much intervention. He found the operation at C5-6 to have been successful.

45. There was no report from Dr Appleby, general practitioner, who referred the plaintiff to Dr Robson.

46. Dr Colin Andrews, consultant neurologist, first saw the plaintiff on 11 November 1985. It was his opinion that there had been damage to C6-7 as well as C5-6. He could not foresee improvement without surgery. In his opinion, the plaintiff had suffered exacerbation of her neck pain and was then unfit for work as a result. Investigations carried out on 21 January 1986 failed to confirm C6-7 damage.

47. However, as at 19 February 1986, Dr Andrews nevertheless remained persuaded that "there could be problems at the C6-7 level". She was still unfit for clerical duties.

48. On 19 November 1987, Dr Ron Howes, Senior Specialist, Rehabilitation Medicine, saw the plaintiff at the request of the Commonwealth Medical Officer. He referred to reports from Drs Andrews, Robson and Truman. There is no report before me from Dr Truman.

49. The plaintiff complained not only of neck symptoms but also lower back pain since the fall. Dr Howes seemed to have regarded the incident at Parks and Gardens as an exacerbation of this pain, although the plaintiff suggests that the two problems are separate. He noted reports of "a mild depressive syndrome" but regarded this as "proportional to her degree of pain and restriction of activity".

50. Dr Howes considered that,

... she is not fit to return to desk work and would be better in a
position where she was moving, walking but able to sit for short
periods.

51. There were reports from Dr Newcombe. He first saw the plaintiff on 26 October 1981. In his opinion, as at 1 June 1992, there was pathology not only at C5-6 but also C4-5. He made no comment about the C6-7 level. He considered that there was a 10% impairment of neck function. The low back pain was, in his view, probably consequential upon the neck pain. Significantly, he noticed that provoking complaints of neck pain also provoked "coldness and colour change in the hands". In his opinion that was "due to reflex sympathetic overactivity, secondary to nerve root involvement following her injury".

52. Dr Newcombe saw no realistic likelihood of any return to paid employment.

53. She saw Mr M K Eagleton, consultant surgeon, on 15 November 1989. He found her "fit for selected duties only". This was subject to concern he expressed as to her psychological state.

54. Dr Peter Henke, rehabilitation consultant, also examined the plaintiff. He saw her twice, on 16 November 1989 and 2 June 1993. In his view, from a purely physical perspective, she was capable of performing clerical duties. However, he had serious reservations about her psychological capacity to cope. Nevertheless, he noted that continuing neck pain would remain a limiting factor on employment.

55. Before considering the conflicting psychological reports, I propose to consider the reports from other medical experts which were tendered by the defendant. They each saw the plaintiff at the request of the defendant for medico-legal purposes only.

56. Dr Nadana Chandran, neurosurgeon, first saw the plaintiff on 2 October 1981. He reviewed her on 17 November 1982, 21 August 1985 and 22 October 1990. Her complaints were static. He could not find any organic basis for her complaints relating to the neck or back. His final report was dated 18 August 1994 and he found no change.

57. Dr Chandran gave evidence after having seen the video material. His opinion was,

... I see no restriction of movement in the neck or back when those
activities (on the videos) were undertaken, and therefore feel that
the videos further substantiate my view about her ability to work.

58. However, whilst Dr Chandran found no evidence of depression, melancholy, disinterest or inactivity, he conceded that he could not conclude that the plaintiff did not suffer pain as she claimed. He also agreed that he observed no effort by the plaintiff to exaggerate her symptoms or artificially restrict her movements.

59. Dr Robert Goldrick, consultant physician, saw the plaintiff on 20 September 1990. He could find no evidence of residual disability albeit he accepted that she had pathology at C5-6. He did point to what he felt were "obvious personality problems".

60. He felt surveillance might shed light on the genuineness or otherwise of her claimed level of disability.

61. Dr David McGrath, occupational medicine consultant, saw the plaintiff on 22 June 1994. He did find a "slight reduction" of neck movement. There was some relative stiffness of the upper cervical joints. However, despite these complaints and others detailed, which he seemed to accept as geniune, Dr McGrath found no physical reason for the plaintiff's apparent unemployability. He did express concern about the long term social withdrawal, lack of exercise, emotional deterioration and her perception of a "poor prognosis". He considered that,

"...her physical capacity must be demonstrated to her. This might
lead to a reduction in pain focus and the confidence to seek
employment. I believe a functional restoration programme would
restore her fitness to be employed in many sedentary occupations"

62. Another consultant physician, Dr Robert Mitchell, saw the plaintiff on three occasions, 1 December 1981, 16 November 1982 and 9 July 1985. He noticed no relevant changes. There was, he felt,

... a chronic tension state grafted to her injured neck, which is
producing further spasm in her neck muscles and thus local pain. It
also gives rise to her frontal headaches.

63. There was also an examination on 2 October 1990 and 31 May 1994 by Dr Johnn Olsen. He was described as a consultant occupational physician and consulting engineer. He had not been advised by the defendant, it seems, that the rehabilitation program commenced in 1991 was terminated by the defendant before its longer term success or failure could be assessed. He did express the view that,

"there is no chronic pain syndrome, there are no psychological
maladaptions".

That seems contrary to the views of both Dr McGrath and Dr Mitchell. It is also somewhat outside Dr Olsen's area of expertise.

64. In short, there are two factors operating upon the plaintiff limiting her ability to work. There is the actual experience by her of pain in the neck and head and lower back associated with her other stated symptoms assuming these to be truthfully reported by her. There is also a question as to her psychological state which might not only exacerbate her perception of pain but also adversely affect her motivation and capacity to cope.

65. It is, therefore, useful to turn to the psychiatric evidence.

66. Dr Peter Morse is the first in time of those whose reports were tendered. There had been some earlier psychiatric reports to which Dr Howes had referred but those were not tendered. Dr Morse noted that the plaintiff had an emotional breakdown in 1978. Whilst that breakdown was not caused by the effects of the accident, Dr Morse noted that the plaintiff felt that the physical and emotional effects of the accident had contributed to it.

67. As at 17 November 1989, Dr Morse found the plaintiff to be significantly depressed, anxious and tense. This was not causing the physical symptoms of which she complained but was, in his opinion, a reaction to them. He found a marked personality change characterised by, taking the more significant features,

... very marked lowered self-esteem, feelings of guilt and blame ...
lack of energy, drive, enthusiasm and motivation, a feeling of
uselessness and apathy ... irritability and anger.

68. Dr Morse considered her prognosis to be "poor". He saw her again on or about 7 June 1993. He found no relevant change in her mental and emotional state or in his prognosis.

69. The defendant referred the plaintiff to Dr David Bell, psychiatrist, for examination and report. Dr Bell, I presume, would have been engaged to comment on the plaintiff's mental and emotional state, and its relationship to the stated physical injuries and disabilities. He was given copies of Dr Morse's reports and might have been expected also to comment upon them.

70. However, Dr Bell has gone much further than this, his first comment was, in effect, a second opinion disputing Dr Robson's diagnosis of disc damage at C5-6. His assertions as to Dr Robson's opinions are not supported by the evidence before me. He purports to quote from a report of Dr Coyle made in 1978. I have no report at all from Dr Coyle.

71. I regard Dr Bell's 'comment', therefore, as unhelpful. To the extent that it informs his opinions, I disregard them, particularly those beyond his psychiatric speciality. I prefer the opinions, in those areas, of the relevant medical experts who otherwise are in agreement. It seems Dr Bell's view that there is nothing wrong with the plaintiff other than the effect of an unnecessary C5-6 fusion is not only eccentric but unfounded.

72. Dr Bell's comment on Dr Morse's report of November 1989 is interesting,

Dr Morse has recorded the account of the alleged sufferer, but her
complaints do not have the necessary subjective element. They fit
what a third party might make of a person who has mental disorder.
Observations made with the wording of the third party observer
betray the fabricated nature of complaints. The person who has a
scenario in mind when devising complaints does so with the
perspective of the third party observer. The person who has the
real disorder reports it from the subjective point of view. The
statements summarised above either lack the critical dimension of
subjectivity or betray the intent to create specific complaints.

Among the litigants for personal injuries, the description of being
depressed appears commonly. In contrast, in the very different
world of treating those with sickness, the difficulty is to identify
depression among those who describe how they feel. They may do so
in misleading terms of physical changes. The individual who has low
self-esteem does not speak as if it is unjustified. Instead, the
individual conveys the sense of conviction, which a third party may
regard as low. The person with the complaint regards it as
justified. Similarly, only another person understands how the
complainant looks and only another person is aware that the
complainant does not look people in the eye.

73. To my mind this comment is a generalisation having little, if anything, to do with the matters referred to in Dr Morse's careful and objective report. If it purports to reinterpret Dr Morse's observations then it seems to me it ought to be rejected as mere speculation. Dr Morse was, in my view, in a better position to assess whether the complaints and the manner in which the plaintiff conveyed them to him were supportive or not of his diagnosis.

74. There is also a "comment" on Dr Olsen's report. The conclusion Dr Bell comes to is that Dr Olsen has described a deliberate simulation of non-existent symptoms on the part of the plaintiff. If that was correct it is surprising that Dr Olsen, who conducted the examination, should have failed to suggest that conclusion. It is even more surprising that Dr Bell could arrive at that conclusion, so different from that of Dr Olsen, not from carrying out that same examination, but merely from reading a report of it. Dr Bell also expresses the opinion that disruption of the C5-6 disc was not possible if the plaintiff fell as described. It is astonishing that the impossibility of suffering disruption to C5-6 by the fall described by the plaintiff was not apparent to any medical practitioner other than Dr Bell. Indeed, Dr Olsen who considered the plaintiff relevantly fit for work, accepted that possibility. I prefer the conclusions of other medical experts on this matter to the inexpert suppositions of Dr Bell.

75. I note Dr Bell differs from Dr Newcombe on the existence of cervical sympathetic dystrophy. If he is doubting Dr Newcombe's observation of clinical signs then I must reject that inference. If Dr Bell is to be taken as disagreeing with the meaning of the clinical signs observed and interpreted by Dr Newcombe, I prefer the view of Dr Newcombe expressed within his speciality rather than that of Dr Bell expressed outside of his speciality.

76. Variations in reports of clinical observations was also seen by Dr Bell as evidence of "simulation". It may, of course, have been evidence of an inaccurate observation or a fluctuation in symptoms genuinely experienced. I consider Dr Bell's reasoning in this respect, therefore, to be lacking in logical force.

77. Indeed, Dr Bell's history taking has, itself, produced some apparent inaccuracies. The examination at Royal Canberra Hospital following the fall is said to have "revealed nothing wrong". The Royal Canberra Hospital examination is noted as saying, "X-Rays were performed which failed to show any abnormality": see Dr Henke's report of 27 November 1989. Dr Goldrick, in his report of 21 September 1990, said "... no bone or joint lesion was uncovered". It is a logical error to assume that because abnormality was not detected there was none present. The plaintiff's reason for changing to Parks and Gardens seems also to be mis-stated.

78. Dr Bell further states that Dr Roebuck operated upon the plaintiff in 1976. He did not. He merely put her in traction on that occasion. Dr Bell assumes that the final incident which caused the plaintiff to go off work was picking up "something small". It was, in fact, reaching up to pull down an awning. These inaccuracies are not, of themselves, important but they do betray a lack of objectivity, and attention to detail.

79. Dr Bell does nevertheless find "significant psychological abnormality" in the plaintiff. However, in his view, it was,

most unlikely that the plaintiff sustained significant physical
injury in the accident of 31 May 1974, much less psychological
injury.

He denies the presence of the physical injuries claimed would "bring about psychological injury".

80. Whilst highlighting that the plaintiff has a personality disorder of some unspecified kind, Dr Bell fails to explain whether that is relevant to the continued complaints of pain and disability. His comments suggesting deliberate simulation contrast strangely with his answer to a question not reproduced before me. The answer states,

Your question refers to psychological stresses, which relate to
compensation neurosis. The compensation neurosis indicates a state
of mind which strives to exploit a situation for the purpose of
gain. A neurosis does not create stresses, but rather simulates
stresses for the advancement of the claim. The individual who has
an associated personality disorder will not necessarily improve. By
the time the behaviour has persisted for years, the individual has
adopted that particular mode of existence. The simulated illness
becomes a way of life. The individual has learned to gain the
satisfaction from life within that framework. Ms Tremayne may
change her way of life after her claim is settled, but her
personality disorder will not alter and I would think neither will
her behaviour.

81. In that paragraph Dr Bell seems to be suggesting a diagnosis of "compensation neurosis". That is, of course, inconsistent with "deliberate simulation". The former is a genuine condition related to the accident, the latter is fraud.

82. Dr William Knox, psychiatrist, was asked by the plaintiff's solicitors to give a second (or further) psychiatric opinion. He had, inter alia, the reports of Dr Morse and Dr Bell. He uncovered significant reasons for the underlying stress and emotional burdens suffered by the plaintiff which he details in his report.

83. Dr Knox considered that the omissions and inaccuracies in the histories previously given by the plaintiff, were not indicative of 'simulation' and, hence, inconsistency, but an inevitable consequence of the lapse of time. He disagreed with the view that a diagnosis of "personality disorder" was appropriate. He did regard "pain disorder" as an appropriate diagnostic label.

84. The plaintiff would be fit, in his view, to undertake several hours of basic clerical or administrative work daily.

85. Dr Knox's comments on Dr Bell's report otherwise are to my mind generally valid, though I would not endorse each of them. Nevertheless, the primary question is whether Dr Bell has offered any useful evidence as to whether the plaintiff is consciously exaggerating her disabilities or not. As to that he is, at best, confusing. There is either 'compensation neurosis' or 'malingering'. The two terms are not co-extensive.

86. I found the plaintiff very much as described by Dr Morse and Dr Knox. I did not get the impression that she was attempting to put her case more highly than she perceived it. Indeed, she seemed thoroughly indifferent for the most part to whether her evidence favoured her case or not. She was irritable and resentful under questioning at times but she did not seem to be attempting to falsify her evidence.

87. In brief, I accept her account as indicating her experience of pain and disability. That pain was caused by her fall. It has left a genuine and physically objective level of pain and disability. It is liable to periodic temporary exacerbations. For various reasons, the plaintiff's underlying personality is not tolerant of such pain and disability. Her poor coping skills have led to the development of the depressive state referred to by Dr Morse, called "compensation neurosis" by Dr Bell and "pain disorder" by Dr Knox. Whatever its label, it is a genuine state of mind. The depressive state is therefore a consequence of the accident. It follows that the various effects noted by Dr Morse, which make resumption of employment unlikely, are caused by the fall.

88. It is possible that the plaintiff will be capable of part-time work as Dr Knox suggests. However, her prospects for obtaining such work are relatively remote. In so concluding, I bear in mind that the plaintiff was compulsorily retired in 1988 on the grounds of invalidity. Clearly, relevant officers of the defendant had formed the view that she could not be usefully employed anywhere in the Public Service. That covers all conceivable combinations of clerical duties.

89. The plaintiff was given part-time work in 1991, apparently arranged by Comcare. That ceased due to lack of funding. It must be concluded that the relevant officers of Comcare perceived no useful economic benefit to the defendant in retaining the plaintiff's services. It can further be inferred that it had no other part-time work which it regards the plaintiff as capable of performing.

90. In those circumstances, whilst the plaintiff no doubt has some residual physical capacity for work, it is, to my mind, improbable that she will be offered useful paid employment.

91. I take account of the plaintiff's fragile personality as indicating that, but for this fall, there was a high risk of some event, physical or emotional, adversely affecting the plaintiff's quality of life and her prospects for continued employment.

92. I would award $75,000.00 for general damages.

93. The past loss of earnings was agreed, as at 16 May 1995, at $190,746.00 net. From that figure, $1,213.98 net should be deducted to take account of the 1991 employment, giving a balance of $189,532.00. A further $3,680.00 will bring that loss up to date. A total of $193,212.00 is allowed under this head.

94. Future loss of earnings to age 60 with allowance for unfavourable vicissitudes and residual employability at 35% was suggested by Mr Crowe, counsel for the plaintiff. Whilst this discount is, perhaps, marginally greater than I would have otherwise considered appropriate, I will apply it subject to 'rounding up'. I award $195,000.00 for this head of damage.

95. The Fox v Wood component for tax paid on compensation payments was agreed to be $29,884.00. I award that sum accordingly.

96. Out-of-pocket expenses were agreed at $43,211.08.

97. This accident pre-dates the power granted to the Court to order pre-judgment interest. There is, therefore, no award of pre-judgment interest.

98. The total, therefore, is:

General damages $75,000.00
Past loss of earnings $193,212.00
Future loss of earning capacity $195,000.00
Fox v Wood $29,884.00
Out-of-pocket expenditure $43,211.08
TOTAL $536,307.08

99. I consider that sum to be appropriate viewed globally. There will be judgment for the plaintiff in the sum of $536,307.08.

100. I will hear the parties as to costs.