Rubie Marhaba v Christopher Damien Layt [1995] ACTSC 9 (24 February 1995)

SUPREME COURT OF THE ACT

RUBIE MARHABA v. CHRISTOPHER DAMIEN LAYT
No. SC907 of 1992
Number of pages - 14
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A HOGAN

CATCHWORDS

Negligence - Motor Vehicle Accident - Right hand turn at intersection - no issue of principle.

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Back Injury - No issue of principle.

HEARING

CANBERRA, 7-9 November 1994
24:2:1995

Counsel for the Plaintiff: Mr G Stretton

Instructing Solicitors: Sneddon Hall and Gallop

Counsel for the Defendant: Mr G Richardson SC

Instructing Solicitors: Mallesons Stephen Jaques

ORDER

THE COURT ORDERS THAT:
Judgment be entered for the plaintiff for $273,081.00.

DECISION

MASTER A HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor car accident on 28 March 1991.

2. The plaintiff was born in Lebanon on 25 December 1970. She came to Australia with her family in 1972, and completed her secondary education in Canberra in 1988.

3. She was interested in working in the hospitality industry, and was already working part-time at the Hellenic Club during her last year at College.

4. She continued working there in 1989 and began, but did not finish, a course in hospitality management at Reid TAFE.

5. In September 1989 she began work as a waitress at the Hyatt Hotel in Canberra, where she remained until 4 July 1990. The circumstances of her leaving are in issue.

6. She then obtained a position as a waitress at the Hayman Island resort in Queensland. In March 1991 she took a fortnight's leave to visit her family in Canberra. She was then in good health.

7. On 28 March 1991, shortly before 10.00 p.m., she was driving a Ford Laser car south on Athlon Drive, towards the intersection of that street with Beasley Street. She was wearing a seat belt. Her mother was a passenger in the front seat. The intersection was controlled by traffic lights. As she approached the intersection the lights facing her were green. She intended to continue straight on through the intersection to her home in Fadden.

8. As she drove through the intersection the defendant, who had approached the intersection travelling north, made a right hand turn, and the front right hand side of the defendant's car struck the plaintiff's car at about the driver's side door.

9. Her evidence was that her turn indicator was not activated as she approached the intersection.

10. The defendant's evidence was that as he approached the intersection the lights were red. He stopped at the lights. When they changed to green he moved to the centre of the intersection, in order to make a right hand turn. He could see the lights of the plaintiff's car approaching. He said that its left turn indicator was operating as it approached the intersection. He rolled slowly forwards, still remaining within his lane, or, rather, not venturing into the lane for through traffic, when the collision occurred.

11. At the intersection, for traffic travelling south as the plaintiff was doing, the road widened from one lane to two, to allow a lane for traffic to turn right.

12. The plaintiff had no reason to indicate a left hand turn, as she did not have any reason to turn into Beasley Street. The natural route for her to take to her home in Fadden was straight ahead. But it was suggested to her in cross examination that she indicated a left turn because she was diverging slightly to the left, to stay within the through lane, rather than travelling into the right turn lane. She denied doing so.

13. The accident was witnessed by Mr Kol, who gave evidence by telephone. He was driving towards the intersection in Beasley Street, and as he neared the intersection the light facing him was red. His description of the accident was as follows:
"Well, now, can you tell us what you saw, please?--- Yes. Well, the

lady from my right was going straight through, and the gentleman was
coming on my left. He had his indicator on to turn right, and the
lady on my right-hand side was going straight through and the guy on
the left hit her.
How did it happen? Did he stop going straight ahead and did he turn
in some way? What happened?--- Well, he did turn in front of her,
yes.
Now, at any time did you see any trafficator activated on the vehicle
driven by the lady who was coming from your right?--- No, she didn't
have anything. She didn't have any indicators at all."

14. In cross examination he denied the suggestion that the defendant stopped at the lights before beginning to move into position to make a right hand turn.

15. The plaintiff's mother did not give evidence.

16. I am satisfied that the plaintiff did not give a left turn signal approaching the intersection.

17. The accident was investigated by Constable Szabo. The fact that he issued a traffic infringement notice to each driver has no evidentiary significance at all, so far as I am concerned, in deciding the issues in this case.

18. The defendant made a statement to him. It was consistent with his evidence. He was asked whether he moved on to the plaintiff's side of the road. He answered, "No". He was then asked, "If not can you tell me how you came to collide with the other vehicle?" He replied, "She was towards my side, if she had continued she would have collided with an island but instead she hit me."

19. That explanation appears inherently improbable to me. There is no apparent reason why the plaintiff should indicate that she was about to veer to the left to avoid the right turn lane, but then fail to follow the straight through lane in such a way as to collide with the defendant.

20. I think that the defendant's version both to the police and in evidence was exculpatory. Even if the plaintiff had been indicating a left turn the defendant was still obliged to give way to her. I accept the evidence on the issue of liability of the plaintiff and Mr Kol. I am not satisfied that there was anything in the circumstances that should have indicated to the plaintiff that the defendant might turn right and collide with her car. He did not begin the manoeuvre sufficiently long before the impact to enable him to turn in front of her in such a way that the front of her car hit the left side of his. He collided with the right hand side of her car at about the door pillar. There was no suggestion that he approached or drove into the intersection at such a speed that she should have been warned that he might turn right.

21. In the absence of any indication by the defendant that he was about to turn across her path, I am not satisfied that her speed was excessive or that the lookout she was keeping was deficient.

22. There will therefore be judgment for the plaintiff. There will be no diminution in her damages on account of contributory negligence.

23. The impact was relatively violent, as she had not reduced speed before the impact. She was wearing a seat belt. Her car continued on for about 50 metres. She was unable to get out immediately, as the driver's side door was buckled, and her leg was jammed between the gear lever and her seat. Her car was written off by the insurance company.

24. She did not strike her head, but was not able to remember how she came to get out of her car.

25. An ambulance was called, which took her to Woden Valley Hospital. The hospital recorded small lacerations of the feet, right hand and right cheek. She had slight tenderness of the upper abdomen, right shoulder and back and some nausea. She was sent for a chest x-ray, which did not disclose any abnormality. She was detained for observation, and allowed home later that evening.

26. The next day she was bruised and sore and noticed the lacerations on her face, particularly the one on the right cheek. She spent the remaining week of her vacation in bed. A local doctor prescribed pain killers.

27. On 9 April 1991 she returned to work at Hayman Island, and resumed duties as a waitress. She experienced difficulty in carrying heavy trays and bending. She was experiencing pain in her neck, arm, shoulder, knees and lower back.

28. On 22 April 1991 she consulted Dr Horne at Whitsunday Medical Centre, complaining of pain in her lower right back and right side of her neck.

29. On examination her movements were unrestricted, but there was pain in the lower back. Dr Horne injected her right sacroiliac joint with anaesthetic and prescribed Naprosyn.

30. She returned on 3 May 1991, somewhat improved, but still tender in the low neck and lower back. A muscle relaxant was prescribed, and the doctor sought her x-ray reports.

31. On 5 July 1991 it was noted that her back was painful and she was having difficulty sleeping. The sacroiliac joint and lumbar area was still tender. She was given stronger analgesics.

32. To cope with difficulty at work she took some sick leave, and arranged sometimes for another waitress to work her shift. She had some massage and acupuncture treatment on the island.

33. On 11 October 1991 the doctor at Whitsunday noted pain in the right hip and knee, and tenderness in the right lower back. He suggested further x-rays, but they were not taken then.

34. On 2 November 1991, she ceased employment at Hayman Island and returned to Canberra. There she consulted a doctor who referred her for x-rays, which were taken on 17 December 1991. She consulted Dr Adam, general practitioner, on that same day. On examination there was no abnormality of movement, but because the symptoms were persisting Dr Adam suggested that she should see a specialist. She also suggested physiotherapy and Panadeine Forte.

35. The plaintiff obtained a referral to Dr Newcombe, neurosurgeon, who saw her on 8 January 1992. He examined the latest x-rays, which did not disclose anything of significance, and arranged for a CT scan, which was normal. However, an MRI scan demonstrated a posterior intervertebral disc bulge at the L5/S1 level.

36. Dr Tyler became her general practitioner, and found tenderness in the right sacroiliac joint. She prescribed Voltaren. The plaintiff also disclosed her concerns about the scarring on her legs. She was referred to Dr Brown, plastic surgeon.

37. The medication did not relieve the pain. X-rays of the sacroiliac joints were normal.

38. In January 1992 she had obtained part time work as a base control operator with a security firm. Dr Tyler issued her work certificates from time to time. On 17 March 1992 she ceased work at that firm. Dr Tyler referred her to Dr Corry, rehabilitation specialist.

39. Dr Peter Brown saw her on 29 April 1992. He reported as follows:

"Clinical Examination
The following scarring is present.
1. In the skin of the lateral aspect of the mid third of the left
lower leg there is a transversely orientated pink scar measuring
1.8cms x 7mms.
2. In the skin of the lateral aspect of the right calf there are
faint areas of light brown pigmentation consistent with previous
abrasions.
3. In the skin of the dorsal aspect of both hands and wrists there
are multiple very small white scars consistent with previous
abrasions.
4. In the skin of the cheeks there are also tiny white scars that are
barely visible.
In the skin of the anterior aspect of the left thigh in its mid third
there is a slight contour indentation of the soft tissues involving
an area 4cms transversely by 2.5cms vertical height. The amount of
depression is approximately 5mms.
Prognosis
The pink scar involving the lateral aspect of the left lower leg
should fade as the hyperaemia resolves. This process may take
anything up to a further 18 months.
The scar is moderately broad but there is no lax skin in that area
and surgical revision may not narrow the scar significantly. Once
this scar has fully resolved it should be pale in colour and of the
same dimensions as at the present.
The faint areas of light pigmentation in the skin of the lateral
aspect of the right calf is the result of previous superficial
abrasions. This degree of pigmentation may decrease slightly with
the passage of time.
The small white scars in the skin of the dorsal aspects of both
hands, wrists and cheeks are consistent with small superficial
abrasions from broken glass. None of the scars are particularly
conspicuous and can only be seen on close inspection.
The contour indentation in the subcutaneous tissue of the anterior
aspect of the mid third of the left thigh is the result of a closed
injury with disruption of underlying subcutaneous fat and some fat
necrosis.

The degree of indentation has now stabilised and there is always the
possibility there may be some regeneration of underlying subcutaneous
fat with the further passage of time.
Unfortunately grafting of fat is unsuccessful and while it improves
the contour deformity temporarily the deformity recurs as the fat
graft liquefies and is resorbed (sic).
Any direct approach to restore the contour will of course leave her
with a scar in the skin which she presently doesn't have. My advice
would be to treat this particular injury conservatively as there is
some chance that the contour defect will diminish with time.
She made the comment that the telangiectases in the skin of both
thighs resulted from the accident. The appearance of these small
vessels in the skin give the impression that they were probably going
to occur naturally and I doubt that they can be linked to this
particular accident other than they may have appeared about that
time.
The scar in the skin of the lateral aspect of the left thigh is the
most conspicuous of the scars and whilst it remains pink she could
achieve some masking of this colour by using a cosmetic and I
recommended she explore the use of Covermark which is obtainable from
Red Cross House."

40. At about that time the plaintiff began to undertake massage therapy at the Vitality Health Centre. It gave her some temporary relief.

41. On 5 May 1992 she was involved in an incident at David Jones, in which she was pushed against some stairs, hurting her lower back. She went to Woden Valley Hospital, where she said she received some treatment and was allowed to leave. The level of pain in her lower back was increased for a time.

42. On 15 May 1992 she consulted Dr Tyler, whom she told about the incident, though Dr Tyler recorded that she was not treated at the hospital. She was complaining of thoracic backache, rather than lumbar. I do not think that this incident caused anything more than a temporary exacerbation of pain.

43. Dr Tyler later noted that the plaintiff had begun a rehabilitation programme, but that her lower backache had been present for 15 months without significant improvement, despite various treatments. She hoped that the rehabilitation programme would help.

44. Dr Corry reported to Dr Tyler that the plaintiff made little progress in his back exercise programme as she attended only irregularly. He transferred her programme to a local gymnasium.

45. In October 1992 Dr Newcombe reviewed her. He noted continued low back pain with right sciatica and no improvement. There was right lower limb numbness. He inferred that some disc injury was caused in the accident, but that it was unlikely that surgical treatment would be needed.

46. In August and September 1992 Dr Sundrum had treated the prominent veins on her left thigh with injections of salt water, which allowed them to fade in prominence to some extent.

47. In September and October 1992 she obtained some temporary security work in connection with the Canberra Floriade.

48. In October she suffered a fall at home, as a result of which she experienced a temporary flare-up of her back pain.

49. In November she had a short period of employment as a casual bar attendant at the Country Comfort, during which she was able to carry out her duties, but took time off to recover from the pain they caused.

50. On 5 March 1993 Dr Newcombe reviewed her condition. There was little change. Her general condition appeared stable. Although some improvement was possible he thought that her return to her pre-accident employment as a waitress seemed unlikely.

51. Later that month she obtained about 2 weeks work as a part-time bar attendant. She left because she was required to wear a skirt, which she did not want to do because of the blemish on her legs.

52. On 8 April 1993 she was examined by Dr Andrews, neurologist, for the defendant. He found nothing specific on examination. He appears not to have known about the result of the MRI scan.

53. On 25 August 1993 Dr Andrea, consultant surgeon, also examined her for the defendant. In addition to her physical complaints she also mentioned to him that she was suffering insomnia and depression. He did not think that the disc bulges at L4/5 and L5/S1 shown on a CT scan of 26 May 1993 were of any great significance. Contrary to Dr Newcombe's opinion, he thought that the MRI scan of 20 January 1992 was normal. I think that the later CT scan confirms Dr Newcombe's opinion.

54. Dr Andrea found it difficult to understand how she could have been so devastated by the accident. He did agree however that the sacroiliac joint had been strained, and that there was evidence of soft tissue injury to the muscles at the back of the neck causing discernible spasm on examination. Nevertheless, he assessed her as being capable of full-time work as a waitress, and felt sure she was likely to improve rather than deteriorate over time.

55. In June 1993 she had begun to consult Dr Guirguis as her general practitioner. She began light duty work as a receptionist in September 1993. She began asking Dr Guirguis for narcotics to help her sleep. He counselled her against continuing use of such medication, and referred her to Dr Ashman, orthopaedic surgeon, for another opinion about her back condition. He regarded her main problem as being the chronic back pain and depression. His prognosis was guarded.

56. On 13 January 1994, at Dr Andrews' suggestion, Dr Griffin administered an injection into her lower back under x-ray control. The procedure was very painful, and gave her no relief.

57. Dr Ashman examined the plaintiff on 1 March 1994. To him she complained of pain in the cervical spine, between the shoulders, and over the lumbar spine and sacroiliac area. Neck and lumbar movements were restricted. He did not have the CT and MRI scans. He diagnosed soft tissue injury, and recommended conservative treatment and a pain management programme. She was, in his opinion, not then fit for work as a waitress, but he thought she would eventually be able to return to such work.

58. In March 1994 she began to have massage and acupuncture from Dr Feng Yuan, once or twice a week, which was still continuing at the hearing. It gives her temporary relief from the neck pain.

59. She began to experience trouble with her breathing, especially at night, and Dr Guirguis referred her to Dr May, thoracic physician. So far as his specialty was concerned, he found nothing abnormal on clinical examination. He attributed her symptoms to stress, and recommended relaxation breathing exercises.

60. Dr Guirguis also referred her to Dr Lee, consultant psychiatrist, who saw her initially on 16 May 1994. She told him about the continuing pain and discomfort since the accident, and her emotional reactions to it, which had led her even to contemplate suicide on two occasions. He diagnosed a post traumatic stress disorder, and suggested that she take anti-depressant medication regularly, and receive supportive psychotherapy. She continues to see Dr Lee about once or twice a month. The plaintiff was examined for the defendant by Dr Shoulder, psychiatrist, in October 1994. Counsel for the defendant did not tender his report.

61. Drs Andrea and Andrews reviewed her finally at the end of August 1994. Dr Andrea remained unimpressed. Her condition was unchanged. He thought her extravagant in the description of her symptoms. He seemed, however, to attribute the lack of progress to inappropriate medical treatment. Had he been treating her, of course, her history might have been different, but that does not really alter her claim for damages, as there is no suggestion that she behaved unreasonably. A suggestion was made that she did not follow Dr Corry's course of rehabilitation conscientiously, but Dr Andrea doubted whether such a course would help her a great deal.

62. I am certainly not prepared to find that her condition would have been significantly different had she undergone the full course of treatment by Dr Corry. At the time she saw Drs Andrea and Andrews she was about to enter that programme again, but there is no report from Dr Corry about treatment in 1994.

63. Dr Andrews thought that the physical findings were somewhat functional, and suspected exaggeration of the back condition. He did not say that any exaggeration was conscious or deliberate, however. He also hoped for a slow and eventual recovery.

64. The only doctor who gave evidence and was cross-examined was Dr Guirguis. He was continuing to treat the plaintiff up to the time of the hearing. He agreed with Dr Lee's diagnosis of post traumatic stress disorder. He thought that the massage that the plaintiff was receiving would be helpful to relieve anxiety and stress. He also thought that the complex of her symptoms and complaints was such that they were probably genuine, and such as would be difficult for her to simulate. Her magnification of her symptoms he attributed to the depression, rather than to exaggeration. I accept that opinion. When asked about the prognosis expressed by Dr Andrews, that given the right support and motivation a slow and eventual recovery could be expected, he responded, "Yes, eventually recovery, but I don't know when.".

65. Much of the time at the hearing was spent investigating the circumstances in which the plaintiff ceased work at various establishments.

66. In her evidence in chief she claimed that in July 1990 she left the Hyatt Hotel of her own volition, in order to go on holidays with her father and then to seek work at a resort in the Whitsundays. She also claimed that she started as a waitress at the Promenade Cafe, but that her position went up to maitre d', and she sometimes took charge in the supervisor's absence. She denied the suggestion in cross examination that her employment there was terminated for disciplinary reasons.

67. But it is quite clear from the Hyatt Hotel's personnel records that her service was considered less than satisfactory, and that after one verbal and two written warnings her employment was terminated for misconduct.

68. This is not an action for wrongful dismissal. There may well have been extenuating circumstances about the incident that led to her dismissal. Her supervisor, Mr Walker, and the Assistant Manager of the Tea Lounge, Katy Gaul, gave her personal references. The employment separation certificate in the personnel file shows that she was not dismissed for unsatisfactory work performance, but for misconduct. I note also that there is no record of any promotion to maitre d' in the file.

69. She also claimed that she left the employment at Hayman Island because of her inability to continue working due to her injuries.

70. Again, Mr Clauson, one of her supervisors, gave evidence of the disciplinary system that operated there, by which a third written warning resulted in dismissal.

71. The plaintiff received a written disciplinary notification on 4 November 1990, about 6 weeks after beginning work there, and before the accident. It referred to her arrival at work one and a half hours late. She denied that happening.

72. On 10 December 1990 she was given another warning, based on her relying on other employees to do her work. It was noted that after counselling her performance improved for a week, but then fell off, resulting in the notice.

73. Then on 2 January 1991 she received a letter about her failing to report to work on 1 January, due to missing the boat to return to the island. However, Mr McJannett obviously had accepted the explanation that she gave about her efforts to get back to work, and no disciplinary action was taken.

74. The accident happened in March 1991, and she resumed work in April 1991. There was another written report by Mr Clauson on 1 November 1991, after she had arrived for duty one hour late. She attributed that to failing to be notified about the need to be on duty an hour early. Mr Clauson gave evidence that he had asked her to be on duty by 8 o'clock. I accept his evidence on that point. But Mr Clauson also gave evidence that she "was a very good waitress, really", and "apart from minor discrepancies I would think she was a good employee.". Shortly before the accident, in March 1991, she had received a written and favourable reference from a supervisor who was leaving Hayman Island.

75. There was no formal dismissal for misconduct. The plaintiff said she had a discussion with a personnel manager and resigned. The documents tendered and Mr Clauson's evidence are not inconsistent with that, though one might infer that had she not tendered her resignation she might have been dismissed.

76. From 21 January 1992 to 17 March 1992 she was employed as a receptionist and clerical assistant at MIL Services, a security firm in Fyshwick. Mr Lawrence, her employer, thought her attitude to the job was poor, and terminated her services. Her explanation was that she was told that her services were no longer required, because Mr Lawrence's brother was about to take on the position full-time. In cross-examination Mr Lawrence agreed that he had told her that, though he said that he had given his real reason in the letter he wrote to an investigator nearly two years later. He did not notice that she had any difficulties at work, but he may not have known about her pain at the time.

77. The real significance of all this evidence about her employment history is the light it sheds on her credibility. I accept that she is capable of giving misleading evidence, and that it is necessary to examine her evidence with care, and in the light of other evidence.

78. But I do not think that it demonstrates that she was not good at her job, or that she had an insecure future in the hospitality industry.

79. The plaintiff is presently employed part-time as a sales and reception assistant at a gymnasium, for about 10 hours a week. Her employer gave evidence about her limited capacity to work for long hours under pressure.

80. The principal issue identified by counsel for the defendant was the extent of her loss of income earning capacity. That depends in part upon the reliability of the medical opinions, based as they are upon the truthfulness and accuracy of her complaints to the doctors.

81. It also depends on an assessment of what her employment history would have been had she not been injured.

82. Despite the legitimate criticism that was made of her reliability as a witness when she was speaking about her employment history, I think that in general she was not simulating or consciously exaggerating in her complaints to the doctors. Some of the radiographic evidence did indicate abnormality at L5/S1. It did not demonstrate interference with the nerve roots at that level, or any abnormality in the sacroiliac area. But it is notorious that damage can be done to tissues in those areas which is not demonstrable by radiographic evidence. Although she could have co-operated more fully in Dr Corry's first rehabilitation programme, she willingly underwent such treatment as she was advised to have.

83. The change in her lifestyle was so marked following the accident that I am sure she was not pretending her pain.

84. There is also no doubt that continuing pain, the failure of treatments to alleviate it, and the restrictions on her activities, resulted in a post traumatic stress disorder, identified both by Dr Lee and Dr Guirguis, and confirmed by the findings of Dr May and Dr Ashman.

85. It may be conceded that the extent of some of her complaints is functional. But in the light of the history they are no less real to her. I find myself in agreement with Dr Guirguis that the complex of her symptoms and complaints, and their consistency over a number of years, is such as to make it probable that her complaints are genuine.

86. In summary, therefore, almost four years ago this vital, energetic and attractive young lady, then only 21 years of age, suffered an injury to her neck and lower back, which was mainly soft tissue in nature, although some pathology was caused to the lumbo sacral disc.

87. She had lacerations to the feet, hand and cheek, which have largely resolved. There is a permanent depressed blemish on the left thigh. There is a suggestion that other minor blemishes on her leg may not have been caused by the accident, but I regard their treatment by Dr Sundrum as being a consequence of the accident.

88. The pain in the arm, shoulder and knees gradually resolved, leaving her with continuing pain in the neck, and especially in the lower back, which has prevented her from returning to her work as a waitress, and which still incapacitates her for that occupation. It was one for which she was suited, and which she enjoyed.

89. She has undergone a number of painful procedures. It is not suggested that any surgery would ameliorate her condition. I have already referred to the post traumatic stress disorder.

90. She may get better to some extent. If she does, no-one can say when it will happen. It is probable that if recovery does take place it will be slow.

91. For her pain and suffering and loss of amenity I award $55,000.00, of which $20,000.00 relates to the future.

92. For interest on the past component of general damages I award $2,750.00.

93. The out of pocket expenses are not contested at $14,331.00. There is no claim made for interest on that element of the award.

94. An accountant's report calculated her past economic loss on the basis that, had the accident not happened, she would have remained in constant employment at Hayman Island or some similar resort. On that basis, her loss, calculated to 7 November 1994, was $42,484.00.

95. I do not think that the assumption underlying that calculation is warranted. I have no difficulty in accepting that since the accident she has worked as often as she could. But even in her evidence in chief she did not claim that she had, or even wanted, a permanent position at Hayman Island. It was a pleasant place to work. But her tenure was not secure, for disciplinary reasons. Had she been asked to leave, or had she decided to travel elsewhere, with her presentation, personality and background she could have obtained other positions in the hospitality industry with relative ease.

96. But just as she enjoyed a substantial break between the time when she left the Hyatt and when she began working at Hayman, I think that she would probably have travelled to other positions, with some breaks in between. A period of almost four years is involved.

97. As a matter of judgment, and bringing the loss up to date, I would allow, in round figures, $60,000.00 as the net amount that she might have earned, from which about $22,000.00 in actual net earnings should be deducted, giving a loss for the past of $38,000.00. For interest on that item I allow $8,000.00.

98. The accountant's report on future economic loss was commissioned on the assumption that but for the accident the plaintiff would have continued to work until age 65 as a waitress at Hayman Island. Resisting, with difficulty, the temptation to flamboyant language, I comment simply that the evidence does not support such an assumption. Neither does common sense.

99. The plaintiff simply did not give any evidence in chief about her plans for the future. From answers she gave in cross examination I infer that she would not have wanted to be a waitress even for many years. She saw the hospitality industry as a career, with the objective of moving into managerial positions, perhaps after further study. Whether she really had the qualities needed for that type of career, it was simply too early to tell. I have taken the emotional effect of the loss of the opportunity to find out into account in assessing her general damages.

100. There might also have been an opportunity for some work as a model, in addition to her work in hospitality.

101. There was simply no exploration by either counsel of her intentions about marriage, or raising a family, or the extent to which those matters might have interrupted her income earning activities.

102. Nevertheless, as a starting point, had she not been injured, and still been working at Hayman Island, her income earning capacity would now have been of the order of $350.00 net per week. The present value of a loss of $250.00 per week over 40 years at 3% is $305,938.00.

103. There must be taken into account the possibilities that she might not have been in constant employment, that she might not have worked to anything like the age of 65, that she may, in 5, 10, or 15 years, recover to the point where she could work full time again at some suitable form of employment, and the usual contingencies of life.

104. On the other hand, it is obvious that there will be a substantial diminution in her income earning capacity for a substantial period, and some diminution for the whole of her working life.

105. As a matter of discretionary judgment I award $150,000.00 for loss of future income earning capacity.

106. It is probable that she would not have been in permanent employment at Hayman Island for long enough to qualify for any substantial employer financed superannuation. I have taken the future loss of such benefits in the future into account in deciding her loss of income earning capacity.

107. There will be a need for ongoing medical, psychiatric and pharmaceutical expenses, which cannot be quantified on the evidence. I allow $5,000.00 for that item.

108. A claim was made for tax on social security benefits. It was not explained to me how it is that the defendant is liable for that sum, and I make no award in respect of it. The amount is so small in comparison with the total award that I think it may rightly be disregarded in any event. The total award is therefore made up as follows:

Pain and suffering 55,000.00
Interest 2,750.00
Out of pocket expenses 14,331.00
Past loss of income 38,000.00
Interest 8,000.00
Future loss of income 150,000.00
Future expenses 5,000.00
TOTAL $273,081.00

109. I direct the entry of judgment for the plaintiff for $273,081.00.