Momir Miladinovic v Mark Francis Morgan [1996] ACTSC 124 (20 December 1996)

SUPREME COURT OF THE ACT

MOMIR MILADINOVIC v. MARK FRANCIS MORGAN
No. SC204 of 1996
Number of pages - 14
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY HOGAN AJ

CATCHWORDS

Damages - assessment - personal injury - motor car accident - pre- existing degenerative spinal disease - previous accident - recovery - exacerbation of low back injury - cervical spine injury - past and future economic loss - no issue of principle.

HEARING

CANBERRA, 9 and 10 December 1996 20:12:1996

Counsel for the Plaintiff: Mr M Cranitch SC with Mr G Lunney

Instructing solicitors: Higgins Solicitors

Counsel for the Defendant: Mr T Rowles

Instructing solicitors: Sparke Helmore

ORDER

THE COURT ORDERS THAT:
Judgment be entered for the plaintiff for $449,328.00. The defendant pay the plaintiff's costs.

DECISION

HOGAN AJ
1. This is an assessment of damages for personal injury sustained by the plaintiff in a motor vehicle accident on 5 January 1988.

2. The plaintiff is a married man born in Bosnia in 1959. He came to Australia at the age of 11, and completed his education to year 10.

3. He then obtained employment as an apprentice carpenter. He did not complete the academic part of that course but continued to work as a carpenter.

4. Later he undertook a full-time engineering course at TAFE and supported himself by working at the Private Bin at night. He did not complete the TAFE course.

5. For a time he conducted a bottle shop until he was asked to become a shareholder in the Private Bin business.

6. In 1977 he had injured his lower back in a motor car accident. He was treated by Dr Kitchin and Dr Roebuck until 1980. He did not lose significant time from work. By the end of 1980 he said that he no longer had any problems with his back.

7. He claimed never to have had any problems with his neck.

8. The arrangement with the other owners of the Private Bin involved his performing a substantial amount of carpentry, in renovations and extensions, as well as working in the running of the business at nights.

9. He also undertook some other building or carpentry work on government contracts.

10. On 5 January 1988, the plaintiff was driving in Allara Street, at about 60 kilometres an hour, when the defendant made a turn across his path. He had no opportunity even to slow down. He was wearing a seat belt. In the collision, he hit his head on the steering wheel. His vision was blurred. He got out of the car and sat on the side of the road until the ambulance arrived. He was taken to Royal Canberra Hospital.

11. The casualty records show that he had experienced light headedness, blurred vision and generalised weakness that had resolved. On examination, there was tenderness over the right trapezius, which was exacerbated on neck flexion. He also complained of lower back pain which was reported as being "recurrent", whatever that might mean. The diagnosis was of a sprained right trapezius and possible sprain of the lower back. The plaintiff was allowed home after some hours of observation. X-rays were not taken.

12. His wife drove him home. He complained of pain in the back and neck.

13. In deciding what were the effects of this accident, it is necessary to examine in some detail the plaintiff's pre-accident condition and particularly the effects upon that condition of the accident in 1977.

14. In his evidence, the plaintiff identified the area of pain that he felt after that first accident as being in the centre of his back, above the belt line. He remembered that a myelogram was performed and that Dr Kitchin and Dr Roebuck played some part in his treatment. Dr Kitchin had performed a manipulation and by 1980, he said, he had no problems whatsoever with his back.

15. His wife had met him in about 1980, though they did not marry until 1985. They had begun to live together in 1982. She gave evidence that he worked very hard through the years to 1988. He made no complaint of problems with his back or neck.

16. Mr McCoy, the proprietor of the Private Bin, gave evidence that the plaintiff impressed him as young and keen and very fit and hard working. In 1985 he had invited him to become a shareholder in the business.

17. In 1996, Dr Roebuck examined him after the subject accident and was asked by his solicitors to comment on the effects of the 1977 accident. The plaintiff produced to him his records from Canberra Hospital, which showed that Dr Roebuck had then been his treating doctor. He had performed a myelogram in April 1979 because of back pain which had been present since the accident of 1977. Dr Roebuck remembered the incident and the x-rays. They showed no disc protrusion. Dr Roebuck had advised the plaintiff that he had a severe musculo ligamentous injury and that surgery would not help him. He did, however, identify the pain as being as low as the lumbo sacral junction and as being the same pain following both accidents.

18. Dr Kitchin reported in July 1991 that he had initially seen the plaintiff on 17 December 1979 with right lumbar back pain of two years duration. He had a back manipulation on 7 February 1980, was reviewed on 18 July 1980, had an epidural injection on 24 July 1980 and was last reviewed on 14 August 1980. Physical examinations had been unremarkable with no neurological deficits. He had no record of any x- rays.

19. Later x-rays demonstrated widespread degenerative changes in the lumbar and cervical spines. They might have existed even before the 1977 accident, although Dr Roebuck makes no mention of having seen any sign of them in the lower back in the 1979 radiographs. In a man so young, they would have been remarkable had they existed. Nevertheless, there were no neurological deficits following that accident and it is clear that, after the manipulation by Dr Kitchin in 1980, the plaintiff was able to work, and to work hard, in carpentry and building activities.

20. Mr McCoy did not have accurate records of the plaintiff's attendance at work after the 1988 accident. He did confirm that if the plaintiff was not at work he did not get paid. His recollection was that the plaintiff missed two or three weeks work. That estimate accorded with that of the plaintiff's wife. She said that although he returned to work, he was still obviously in pain in his back and neck.

21. The plaintiff's general practitioner was Dr Wright. He consulted him on 2 February 1988 complaining of back pain. He mentioned the previous accident and told Dr Wright about the myelogram that he had undergone. He identified the areas of pain as being over the trapezius and mid-back muscles and over the lumbar muscles. There was also numbness over the left buttock. Dr Wright advised x-rays and physiotherapy. Neither he nor the plaintiff could recall whether either prescription was carried out.

22. The plaintiff returned to work but found it difficult to do his job properly because of pain. The pain affected both the carpentry and the bar aspects of his work.

23. He did not consult Dr Wright, however, about his back. There was one attendance for a prescription on 16 February 1988 and another for headaches on 10 March 1988 and no further attendance until 15 March 1989.

24. On the Saturday night before that consultation he had been injured at work trying to break up a fight. His back had been pushed against a sharp edge. On examination, there was no bruising but swelling in the left loin and tenderness over the left rib. Again, x-rays were advised, but do not seem to have been taken. I do not think that this incident affected his lumbar or cervical spine to any significant degree.

25. On 23 May 1996, Dr Wright examined the plaintiff for the purposes of a report to an insurance company. He noted in his own clinical notes the past history of a normal myelogram for lumbar strain following the accident in 1977 with no problems since. There was no record of any complaints relating to the subject accident.

26. In July 1990, the plaintiff was innocently involved in a brawl at a football match. He was hit in the back by an umbrella and behind the ear with a screwdriver but fell and suffered hyperextension of his spine when he jumped across a car while trying to escape. There was tenderness over L5/S1. Dr Wright diagnosed ligamentous sprain but again the recommended x-rays were not taken.

27. Mr McCoy confirmed that during this period the plaintiff had tendered his resignation from the business but that he had talked him out of it. His physical condition did not improve over late 1988 and 1989. When the plaintiff again suggested resigning in late 1989, it was accepted, partly because he could not do the work, but also partly because criminal proceedings had begun against the defendant. The plaintiff retained some small financial interest in the club.

28. He carried on business for a time as a building contractor, doing work for the government. He had to restrict his role to that of supervisor and employ others to do the carpentry and other work that he would have done. Although he was able to fulfil the contracts, there was, he said, very little profit in them. This accords with his 1990 tax return.

29. He then operated a BP petrol station franchise, in partnership with his wife, at Nepean. She took no active part in the business. His pain and frustration had become such that he was drinking to excess and the marriage had come under strain. He was not consulting his doctor because, he said, he could not really get any treatment. His wife confirmed that he was not seeing any doctors but that did not mean that he was not suffering any pain.

30. The service station venture was not a financial success. He suffered particularly from pain in the neck from the long hours at the counter but he did not attribute the failure of the business to his physical condition.

31. He returned to Canberra. On 18 February 1991 he consulted Dr Ashman, orthopaedic surgeon. He saw Dr Wright the next day for a referral. His complaints were particularly of left sided neck pain, which had been increasing in frequency and intensity. Dr Ashman ordered plain x-rays, which showed marked disc degeneration at the lower three cervical levels. He diagnosed cervical spondylosis, for which the only treatment was conservative, using rest, analgesics, a soft collar and physiotherapy. He could not then say whether the condition had existed at the time of the accident. He expected the plaintiff to be able to work as a builder, but with exacerbations of neck pain and stiffness.

32. On 5 June 1991, the plaintiff again consulted Dr Wright, but this time about his lower back.

33. He told Dr Wright that he had been suffering from back pain at about the level of L5 for many years. Initially it had occurred after the 1977 accident but then settled. It had been present ever since the second accident in 1988 with numbness in the left buttock. There were no neurological signs of lumbar nerve root entrapment.

34. Dr Wright ordered plain x-rays of the lumbar spine. They showed some degenerative changes at the mid and lower lumbar levels. The L3/4, L4/5 and L5/S1 disc spaces appeared slightly narrowed. He referred the plaintiff again to Dr Ashman.

35. I think Dr Wright recorded the history more accurately than Dr Ashman, so that I do not infer from the phraseology in Dr Ashman's report of 27 June 1991 that the plaintiff continued to suffer pain in the low back over the whole period from the 1977 accident to the 1988 accident. Dr Ashman diagnosed a combination of early degenerative disc changes in the lumbar spine and a chronic ligamentous strain relating to his occupation as a builder. He told the plaintiff that no further investigations or operations were needed, but that he would have to put up with the pain if he continued to do a labouring job.

36. That advice gave him no comfort. He asked Dr Wright for a second opinion. Dr Wright referred him to Dr Robson, neurosurgeon, who saw him first on 22 July 1991.

37. Rather than attempt to paraphrase Dr Robson's inimitable style, I set out in full his report to Dr Wright of 22 July 1991. I have just seen Mr Miladinovic with his bad neck and his lower back and the position is that he has very obvious disc degenerative change at multiple levels in the neck, and indeed I would be a bit reluctant here to do too much to that neck at his age because you would not quite know where to stop. It is undoubtedly the reason for his ache and his pins and needles but if you look critically at the x-rays he has really got degenerative change at 4-5, 5-6, 6-7, C7-T1 and T1-2 so it is a pretty widespread set of changes he has got here. I would pick the eyes out of them and say he is in trouble at 5-6 and 6-7 but really based on the statistics for the situation rather than anything else. Always in the back of my thoughts is that at the age of 31 it is likely that he has got another 50 odd years ahead of him and that is a long while in which to wear out the other L's and I can't held thinking, although there is certainly no proof about it, that for fixing these does contribute to the wearing out so in one sense while you can make him better temporarily you may be slightly increasing the likelihood of further trouble. I think further trouble is inevitable anyway with this neck but there might be more mileage to be got out of it yet. With all this in my thoughts I have encouraged him to just go and buy a packet of Panadol and try and keep going as best he can with it because it is really at the moment probably a bit less attractive for him to have an operation than it is to try and roll along with it for the time being.

38. The plaintiff followed that advice, but eventually the neck pain became intolerable so he went back to Dr Robson, who was persuaded that further investigation was warranted. He performed a myelogram on 9 January 1992 and then, on 29 January 1992, reported to Dr Wright as follows, I reviewed Mr Miladinovic today and I really am concerned here. He is only in his early 30's and yet he has multiple levels of trouble both in neck and lower back and it is very difficult to pick the eyes out of this sort of problem in any satisfactory way. You have a copy of the myelogram report and clearly that confirms all these levels of trouble in the neck and then in the lower back as well and it is so far impossible for me to pick between them. It is the neck which is the big concern and I have arranged to do some discograms, in the hope not so much of pictures as of establishing which of these is painful and perhaps the other way establishing whether any of these are not painful in the neck. It would be a great idea if we were able to only do one or at most two accepting that at sometime in the future he may blow up again but when we start having to do three at this age I think you are looking at at least the theoretical likelihood of progressive changes. I don't feel too badly about this if people are elderly because after all there is a limited life span in which these progressive changes can take place but at 30 it is not really much fun for him. I just cross my fingers and hope that I get good help from this discogram.

39. On the same date he confirmed to the plaintiff's solicitors that the plaintiff's complaints of neck pain had dated from the 1988 accident.

40. On 24 April 1992, Dr Robson performed a discogram to help in deciding which of the many affected levels was likely to be causing the most pain. The indication was that C4/5, C5/6 and C6/7 all needed to be operated on. He thought it unlikely that the plaintiff would get any relief except from surgery.

41. The plaintiff's trial on drug related charges began on 27 April 1992. He was convicted and sentenced to imprisonment for four years. He was released on 17 May 1996.

42. During his time in prison he complained of neck and back pain, and received some treatment. It may have been less than he would have sought and received had he been a free man. He was also not able to restrict his physical activities to those he would otherwise have chosen to perform. He was not, however, put to hard labour. He studied for and gained a Building Construction Certificate and credit towards an Associate Diploma of Science and Building. He has only two more units to complete for this course. His evidence is that he intends to complete them.

43. The details contained in the report by the Director of the Corrections Health Service are consistent with the plaintiff's evidence and complaints. He asked to be seen by Dr Robson, who was able to see him at Goulburn on 30 September 1995.

44. The complaints about neck pain were worse than they had been three years before. So were those about the back but not to the same extent. Dr Robson reviewed the radiography and adhered to his conclusion that operation on the back was not justified but that operation on the neck, if it were to be done, would need to be done at three levels, which would have disadvantages in one so young. Without the operation the neck would not get better.

45. After his release from prison, the plaintiff could not usefully consult Dr Robson, who was retiring from practice. Dr Wright referred him to Dr Chandran, neurosurgeon, who ordered an MRI scan. These demonstrated extensive degeneration in the cervical and lumbar spine.

46. On 3 July 1996, Dr Chandran commented that he failed to understand how this could be due to the motor vehicle accident in 1988. But that is not the way in which the plaintiff's case is presented. It is accepted that there were already degenerative changes, which would have been observable on x-ray, in 1988. The neck and back, however, it is claimed, were then asymptomatic. It was the accident that made the condition symptomatic and exacerbated the degenerative condition. Dr Chandran effectively advised against surgical intervention, either to the back or the neck.

47. Conventional medicine could not give him any comfort. He sought chiropractic treatment which he received on nine occasions between August and December 1996. His evidence was that he experiences relief during the treatment, but is back to his usual condition by the time he gets home.

48. The chiropractor's prognosis was as follows, At this point in time the primary goals of care should be the restoration of function (and prevention of further disability) of strength, endurance, flexibility, coordination and balance. To achieve these goals Mr Miladinovic will need to adhere to a rehabilitative exercise program. To date results of treatment have been favourable with a general decrease in severity of pain following each visit. Relapses usually follow some strenuous activity, for example playing with the children or work about the house. Due to the chronicity of the condition, the degree of degenerative change and the condition of the supporting musculature, I think Mr Miladinovic will continue to have intermittent episodes of back pain for the foreseeable future and will need to seek supportive manual therapy once maximum medical improvement is reached. Any work will need to be not physically demanding and, prolonged postures or repetitive activities should be avoided.

49. His solicitors referred the plaintiff to Mr Petroni, clinical psychologist, for assessment and report. In October 1986 he gave Mr Petroni a history which was broadly consistent with his evidence and the history he had given to the doctors. Psychologically, he was complaining of depression and loss of self esteem. His relationship with his wife had been adversely affected. She confirmed that he could no longer sleep in the same bed because of pain. Mr McCoy also confirmed what the plaintiff told Mr Petroni, that he was doing some unpaid light work at the Private Bin to repay Mr McCoy for the support that his wife had received from him while the plaintiff was in prison.

50. Mr Petroni's findings and opinion are as follows, FINDINGS ON PSYCHOLOGICAL EXAMINATION The personality profile derived from my psychological examination of Mr Miladinovic yielded a configuration that warrants a psychophysiologic diagnosis consistent with an injured patient profile with quite a moderate level of depression. Conversion or hypochondriacal symptoms are absent. Genuine symptoms of back pain, weakness, fatigue and sleep disturbance are indicated. An otherwise normal and responsible person who is now showing symptoms of over dependence and insecurity. However he would feel uncomfortable with his dependency and is experiencing conflict as a consequence. Otherwise he would be overcontrolled about his feelings and occasionally may tend to lose his temper. However he is not violent. There is evidence of serious concern about health and bodily functions with a tendency towards withdrawal and seclusion. He would be anxious, tense and nervous with attendant restlessness and feelings of irritability. He harbours many doubts about his abilities. A hitherto motivated and achievement oriented person, his interest and involvement in life-goal pursuits have significantly diminished and he will no longer lace himself in competitive situations. His level of efficiency has been and will remain significantly lowered over a sustained period of time. Nevertheless he does not feel comfortable in the pain patient role, is not deriving any secondary gains and is motivated to change. There is no evidence of any trait characteristics that could be exacerbating or influencing the pain response. OPINION
Mr Miladinovic has sustained pain and suffering as a consequence of the physical injuries received in the accident of 5th January, 1988. There is no suggestion that he is consciously relinquishing responsibility for the management of his pain. He has a good record of consistent full time employment and he is not likely to find inactivity reinforcing. The personality profile, furthermore, is free of fixations and excessive somatisation. Indeed Mr Miladinovic is a man of above average intelligence who recently has been making a remarkable effort to gain a formal education in an attempt to make a success of his life-goal pursuits. These endeavours however, have been thwarted and he now has a sense of desolation in the knowledge that his career aspirations and opportunities have been truncated. They psychological consequences of his physical injury, vis-a-vis the lost career prospects, are anxiety/depression with all the symptoms enumerated in the results of my psychological examination of him. Ultimately the remaining psychological consequences of the physical injury will resolve only in proportion to the effectiveness of the medical intervention, the prognosis of which is of course the province of his treating physicians. However from my perspective and my 28 years experience in pain management, it does not look promising. I very much doubt whether Mr Miladinovic will be ever able to return to his former vocation. There is no doubt that he is depressed, his self esteem has been severely undermined and his career prospects are doubtful. Hence the psychological sequelae are not only disabling but are of such intensity as to require psychological intervention forthwith. Pain management is also indicated. Psychological intervention to restore his confidence and self esteem has in fact already been initiated by me at the request of his wife who is most concerned about the way the physical injury has intruded in all his areas of functioning. I envisage management, including pain management, will need to continue twice weekly initially for the next two months then once weekly possibly for a further three months. His condition should then be reviewed. The cost of such intervention would be approximately $3,500 but could be as much as $7,000 or more.

51. If he is able to pay for it, the plaintiff intends to undergo that treatment.

52. Dr Wright reported in November 1996 that the plaintiff's pain is poorly controlled by anti-inflammatory medication, Valium, and more recently small amounts of narcotics. The plaintiff himself, and his wife, agree with Dr Wright that the narcotics are best avoided completely, if possible. Dr Wright had certified him unfit for work for Sickness Benefit purposes until after the date of the hearing and recommended referral to Dr Corry, rehabilitation specialist.

53. Also in November 1996, Dr Roebuck reported that there had been no complaint of neck pain until after the 1988 accident. He did, however, attribute part of his lower back problem to the 1977 accident. His inability to do his previous work, on the other hand, was totally related to and caused by the 1988 accident.

54. The defendant's solicitors sought an opinion from Dr A Cairns, orthopaedic surgeon, who saw the plaintiff first on 24 June 1994, at Berrima Correction Centre. He found the plaintiff to be a poor historian, but in broad outline was given an accurate enough account of the course of the plaintiff's complaints. He found no neurological signs on examination. At that first examination he did not see any x- rays, but did have the results of the 1992 myelography and discography. Dr Cairns also found it difficult to attribute the multisegmental nature of the intervertebral disc involvement to the motor car accident. He thought it more likely that there were pre- existing, though asymptomatic, degenerative changes both in the cervical and lumbo sacral areas, which were aggravated by the accident. That is, in fact, what the plaintiff now alleges. Dr Cairns, however, would have expected the aggravation caused by the accident to have resolved within two to three years at the most, and attributed the plaintiff's present disability to the underlying degenerative disc disease.

55. The solicitors provided him with some further information about the plaintiff's claim and raised a number of questions about his opinion. Dr Cairns, in his reply, demonstrated that they had misunderstood his report and adhered to his opinion.

56. He re-examined the plaintiff in October 1996. The plaintiff told him that the neck, and particularly the back, were both worse. Dr Cairns noted his depressed and resigned presentation. He also noted that his hands were calloused and ingrained with dirt, which he thought totally inconsistent with the level of disability claimed. Dr Cairns suspected that the increased discomfort resulted from increased activity rather than a deterioration in the level of pathology. He adhered to his previous view about the cause of the pain and its relationship to the subject accident.

57. Dr Robson gave evidence and was cross-examined. The degenerative changes in the neck that he had seen on x-ray had been quite marked in view of the plaintiff's age, but it was quite consistent that there had been no neck symptoms until the 1988 accident. It was the accident that made it painful. Nothing in his cross-examination cast doubt on that opinion. He was not asked to comment on Dr Cairns' hypothesis that the effects of the accident would have been absent after three years or so, but it is clear to me from what he did say that he would not have agreed with it. He did agree that, had the accident not happened, he might have had trouble later at age 50 or 60, but he could well have gone on for a long time without any trouble.

58. Dr Roebuck also gave evidence and was cross-examined. His opinion also was that the accident had precipitated symptoms in a previously symptomless cervical spondylitis. It is possible that, without the accident, he might have gone through the whole of his working life without disabling pain. In his present condition, he thought that the plaintiff is not capable of working as a carpenter. He might be able to do light work, if he could work at his own pace. So far as the back is concerned, in cross-examination he agreed that some of the degenerative changes might have come from the 1977 accident. All that means to me is that the plaintiff was susceptible to the injury that the defendant inflicted on him in 1988. Dr Roebuck also was not asked to comment on Dr Cairns' hypothesis.

59. Dr Cairns also gave evidence and was cross-examined. He was not asked in chief to explain why he thought that the aggravation was of a temporary nature. He adhered to his opinion that even without the accident the plaintiff would have become symptomatic, simply because he was showing such signs of degeneration at a relatively young age. I am simply not persuaded by his explanation about the resolution of symptoms.

60. In summary therefore, I think that the probabilities are that the plaintiff was a person who, for genetic or other reasons, was going to have degenerative changes observable in his neck and low back spine even had there been no accidents. These changes, by 1988, were going to be more advanced than is usual for a man of his age.

61. The processes had probably already begun by 1977, but were not yet noticeable. His neck was not injured at all in the 1977 accident. The low back was, but the damage there was primarily muscular and ligamentous. Nevertheless, it took some years to resolve and probably left the back in that area susceptible to further injury.

62. By 1988 the processes of degeneration had progressed, more particularly in the neck, where they extended over a relatively large area. At that time they were symptomless and the plaintiff was able to work hard for long hours without discomfort.

63. It is possible that he could have spent the rest of his working life without significant discomfort, but I think it is more probable that both his neck and his lower back would have prevented him from doing heavy work at some time. I agree with Dr Robson that it is impossible to tell with any accuracy when that might have happened. It might well have been so far into the future that the plaintiff would have eased back on hard physical work and concentrated more on supervision in any event. He is intelligent and capable of acquiring qualifications that, together with his practical experience, might have fitted him for a supervisory position.

64. In the subject accident, his spine was subjected to violent forces, which exacerbated the changes and made them painful. The accident was probably the reason why the three levels identified by Dr Robson became the focal points of the causes of the pain.

65. It is now almost nine years since the accident. His pain and disability has increased over that period. It is possible, though unlikely, that it will not get much worse. It will certainly not get any better. There is no operation proposed that would alleviate the low back pain. The balance of expert opinion is against attempting to operate on the neck because of the multisegmental nature of the injury. But without an operation, there will be no alleviation. He is now 37. He has a normal life expectancy of 36 years or so.

66. For the pain and suffering and loss of amenity that was caused by the subject accident, I award $70,000.00, of which $40,000.00 relates to the future. I award $5,400.00 for interest on the past component.

67. The out-of-pocket expenses are agreed at $8,928.00. There is no evidence about whether or when they were paid, and I do not therefore award interest on them.

68. It is obvious that he will require treatment and medication for the rest of his life. I allow $10,000.00 for that item.

69. The past economic loss is impossible to calculate, and difficult to estimate. Despite the evidence of an absence for about three weeks after the accident, the particulars claim only one weeks' loss, and only a further $1,000.00 for loss while still at the Private Bin. There is no claim for the period of four years during which he was on trial and in jail. His disability was not the reason why the service station venture failed, but he would probably not have undertaken it but for his injuries.

70. He left the Private Bin in September 1989. He was in the service station for about eight months, from September 1990. In the year ended 30 June 1987 he had earned more than $35,000.00 net at the Private Bin and his other construction work, so that his income earning capacity before the accident was of the order of $670.00 a week net.

71. His net earnings for the 1989 and 1990 years were of the order of $20,000.00. In 1991 and 1992 there were losses, because he was unable to do work himself. He has not earned anything since being released from prison.

72. The amount claimed in the particulars for past economic loss to 1 February 1996 is $69,000.00, a figure which was not expressly contested by counsel for the defendant. As a matter of judgment rather than calculation, I award $70,000.00 for past economic loss. The bulk of that loss was incurred before May 1992. In lieu of interest on that item, I award a lump sum of $35,000.00.

73. For the future, I accept the submission of counsel for the plaintiff that a base figure for his income earning capacity, had he not been injured, is at least that of a carpenter, $510.00 a week net. The present value of that loss for 23 years at 3% is $442,210.00. That must be discounted, not only for the ordinary contingencies, but for the possibility that he might have been substantially disabled by the natural progression of his degenerative disease.

74. I am also not persuaded that he will not have any earning capacity in the future. He may well complete formal qualifications in the supervising of building work. Job opportunities in that field are very limited, given his background, but he wants to do productive work of some kind. I can only deal with that contingency by way of further discounting. On the other hand, the base figure of $510.00 a week is extremely conservative. As a matter of judgment, I award $250,000.00 for future economic loss.

75. The total award of damages is therefore made up as follows, Pain and suffering $70,000.00 Interest $5,400.00 Out-of-pocket expenses $8,928.00 Past economic loss 70,000.00 Interest 35,000.00 Future treatment 10,000.00 Future economic loss 250,000.00 TOTAL $449,328.00

76. I direct the entry of judgment for the plaintiff in the sum of $449,328.00.