Glen Wesley Johnston v Arthur Goboly and Steven Bruce [1996] ACTSC 28 (12 April 1996)

SUPREME COURT OF THE ACT

GLEN WESLEY JOHNSTON v. ARTHUR GOBOLY and STEVEN BRUCE
No. SC138 of 1992
Number of pages - 12
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER T CONNOLLY

CATCHWORDS

Damages - Assessment - Personal Injury - Spinal Injuries - 2 Accidents - Work Accident - Fall from Ladder - Subsequent Motor Vehicle Accident - Aggravation - Apportionment - No Issue of Principle.

March v Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Koech v Persic ( unreported, Supreme Court of the ACT, Canberra, Appeal from

Master Hogan, Miles CJ, Gallop and Foster JJ, 26 March 1996)

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327
Hunt v Severs [1994] UKHL 4; (1994) 2 All ER 385
Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245
Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60

HEARING

CANBERRA, 19-21 March 1996
12:4:1996

Counsel for the Plaintiff: Mr C Barry QC and Mr P Mahony

Instructing Solicitors: Baker Deane and Nutt

No Appearance for the First Defendant

Counsel for the Second Defendant: Mr L Morris QC and Mr M McDonogh

Instructing Solicitors: Abbott Tout Harper and Blain

ORDER

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff against the first defendant
in the sum of $200,856.23.
2. Judgment be entered for the plaintiff against the second defendant
in the sum of $696,378.00.
3. The question of costs be reserved with liberty granted to apply in
respect of costs on 2 days' notice.

DECISION

MASTER T CONNOLLY This is a claim for damages for personal injuries suffered by the plaintiff at the hands of two separate tortfeasors in two separate accidents. The first action, against Mr Goboly, relates to an accident caused by the defendant's negligence in failing to restrain his dog. In that matter there is a judgment of this Court against Mr Goboly, and the task at this hearing is only to assess damages. In the case of the second action against Mr Bruce, liability for the motor vehicle accident had been in issue but was admitted at the hearing of the matter.

2. Counsel for both the plaintiff and the second defendant urged me to approach this task as two separate assessments, rather than seeking to determine an appropriate level of damages and then assessing contributions as between separate tortfeasors, and I have adopted this approach. There was no appearance on behalf of the first defendant at the hearing.

3. The plaintiff, Glen Wesley Johnston, was born at Sydney on 5 December 1951. He attended school to third year at Macquarie Boys High School, and then commenced employment in a plant nursery for about a year. He then commenced an apprenticeship as a motor mechanic with a car dealer in Sydney, which he successfully completed, qualifying as a tradesperson in 1966. He worked as a motor mechanic in Sydney for some years, marrying his first wife in 1970. A son was born thereafter, and in 1972 the plaintiff and his family moved to Canberra where he took up employment with a truck firm in Fyshwick.

4. After this move the plaintiff's marriage broke down, and following this the plaintiff developed a heroin addiction. It is very greatly to his credit that he recognised this problem, and after some years put himself through a detoxification program to the point where he has never again used heroin.

5. The plaintiff has been living with his present wife, Anne, whom he married in 1986, from about 1975 and they have a 9 year old daughter, Riana. There is also an adult son from Mrs Johnston's first marriage presently residing with the family.

6. Once Mr Johnston conquered his heroin addiction he worked for a time as a mechanic, and then with a crane hire company as a dogman. In 1982 he commenced employment with Concrete Constructions on the Parliament House site as a dogman. Mr Johnston was never fully satisfied with his employment, and during a period of some disruption due to industrial difficulties on the Parliament House site he applied, successfully, for appointment to Telecom as a linesman, or communications officer. He commenced with Telecom in June 1984, and has undertaken various training courses within the Telecom organisation, to the point where he had advanced to Communications Officer Grade 3. By 1990, then, Mr Johnston had been with Telecom for some six years, and had advanced so that he was in a more senior position involving somewhat less physical work, and more fault diagnosis. He had had a variety of minor accidents at his work over the years, but nothing of any particular significance. He was under treatment for hypertension, which was well controlled, and had had episodes of ankle problems and gout, but he described himself as being in good physical shape, and certainly enjoyed golf, swimming and normal active pursuits, as well as fishing and hunting. He had a long-standing interest in old motor cycles, which he restored as a hobby. He says, and I accept, that by 1990 he was very satisfied with his employment at Telecom, and hoped for advancement to the next level as a Communications Officer Grade 4, where he would have some supervisory responsibility, but continue with field work. He made it clear that he would not enjoy a job that was confined to the office, and so had no aspiration for promotion beyond this grade.

7. On 6 December 1990 he was called, as part of his normal duties, to a fault at Mr Goboly's house at Narrabundah. In order to check the fault he had to climb a pole at the rear of the house, but in the back yard was a disagreeable dog. Mr Johnston approached the pole from the neighbour's side, but as he was up the ladder the dog, climbing a wood pile, lunged up at him to attack. As he tried to avoid the bite, he fell from his ladder onto a tree stump, injuring his back.

8. There is no doubt that this injury caused the plaintiff considerable distress, and indeed he was off work for a very considerable time. The precise nature of the injury, however, is central to the dispute between the plaintiff and the second defendant, and I will address these medical issues later. Suffice to say that, following extensive periods of treatment and rehabilitation, Mr Johnston was able to return to work with Telecom in October 1991. While it was put to the plaintiff that this return to work was only a device to qualify him for a retirement or redundancy package, I accept his evidence that he was keen to again take up an employment which he clearly enjoyed, and the plaintiff clearly went through considerable efforts throughout 1991 to rehabilitate himself. He was not fully fit at his return to work. On his own evidence he says that he felt 85 to 90 percent fit, and Telecom was co-operating by making certain adjustments to his vehicle and arranging a graduated return to full duties. The plaintiff gave evidence, and I accept him, that it was his intention, if he could, to continue in his employment with Telecom to normal retirement age.

9. Unfortunately these plans were not to be. Within two weeks of his return to work, on the morning of 25 October 1991, he was driving his Telecom van towards Fyshwick along Canberra Avenue approaching the roundabout at Hulme Circle at Kingston. As he stopped at the giveway sign at the roundabout he was struck from the rear by a semi trailer driven by the second defendant. Liability for this accident is now admitted.

10. Mr Johnston gave evidence that he was thrown backwards with sufficient force to break the special seat cradle which had been installed in his van to make his return to work more comfortable. He felt pain in his head, back, legs and arms, and was in some confusion. He was able to drive his van the short distance to the Telecom yard following the second defendant, and then was driven to the police station to fill in an accident report, and then home.

11. He was then in a lot of pain, and rang his general practitioner, Dr Hutton. Dr Hutton had been treating him for some years, and was very familiar with his back problems from the first accident. He suggested that the plaintiff take some pain killers and go to bed, which he did. The next morning the pain was not getting any better, and he made an appointment to see the doctor. From then on the plaintiff has seen a range of doctors and specialists, and has undergone an unsuccessful spinal operation. The pain and restrictions on his movement has not improved, and he is unable to return to his employment with Telecom. I find that, given his pre-accident employment and qualifications, he is now unlikely to return to any remunerative employment; that is certainly the view of his treating doctor.

12. If this was as a result of a single accident, the issues would be relatively straightforward, and my task would simply be to calculate special damages for loss of earnings and medical and other expenses, and general damages, and make an award against the tortfeasor who brought about this loss to Mr Johnston. But in this case there are two accidents. The plaintiff's claim is that he had nearly fully recovered from the first accident, and that the second accident was a significant new event. On this basis I should calculate general damages in a modest sum for the first accident, and special damages based only on expenses and loss of earnings up to the date of the second accident, with perhaps a modest contingency for loss of future earnings. On the plaintiff's case he had returned to work at the time of the second accident, and his expectation was that he would work his way back to full duties, or that, even he had some residual restrictions for heavy work, his employer was prepared to structure his work in such a way that he could, at the level which he had achieved, or at the level to which he aspired, avoid major problems and continue in full time employment until he retired. On this case the second accident was virtually the sole cause of his substantial general damages and loss of future earnings, as well as a claim for Griffiths v Kerkemeyer damages that, on its face, exceeds $1 million.

13. The second defendant's case is that the first injury is the overwhelming cause of the plaintiff's present predicament, and that the significant spinal injuries which the plaintiff undoubtedly suffers were a direct result of the attack by Mr Goboly's dog. On this view of the facts the second accident merely accelerated an inevitable complete breakdown of the plaintiff's physical condition, and if it had not been the motor vehicle accident which precipitated this, it would have inevitably occurred as a result of the normal extingencies of life or work, even on the restricted and supportive basis offered by Telecom. On this view only minor damages are awardable against the second defendant, with the bulk of Mr Johnston's award against Mr Goboly.

14. In order to resolve this matter it is necessary to examine carefully the medical evidence.

The Medical Evidence
15. Somewhat unusually, for a case such as this, the Court has not been confronted with a contrasting range of medical reports and opinions. A substantial body of medical reports was tendered on behalf of the plaintiff, and the plaintiff's treating general practitioner and treating orthopaedic surgeon were both called and gave oral evidence. The defendant tendered some material, but this tended to simply confirm the extent of the present disability. The real argument before me centred on the analysis in the reports of the plaintiff's doctors.

16. Dr Ashman, the plaintiff's orthopaedic surgeon, first saw Mr Johnston on 9 April 1991 after referral from his general practitioner, Dr Hutton. In his report of 17 January 1992, Dr Ashman said:

"I reviewed Xrays of his ... lumbar spine dated December 1990 which
showed a degenerate lumbo-sacral disc space ... A CT scan of his
lumbar spine dated January 1991 showed that the L5-S1 disc space was
bulging but there was no evidence of pressure on nerve roots. My
Diagnosis in this man was pre-existing lumbo-sacral disc degeneration
which had been aggravated by a fall at work in December 1990."

17. It is significant that in his report he referred to a straight leg raising test done on examination which was limited to "50 degrees". In his oral evidence, and referring to his original notes taken at the time of the examination, Dr Ashman corrected this to "60 degrees". I am satisfied that this is the better figure, being based on his contemporaneous notes, and accept his explanation that he misread this when dictating his 1992 report.

18. Dr Ashman's next report dated 3 August 1992 refers to a further examination on 18 June 1992, subsequent to the motor vehicle accident. At this examination his straight leg raising was limited to 10 degrees, and Dr Ashman requested an MRI scan of his lumbar spine, and again examined him, with the benefit of the MRI report, on 2 July 1992. Dr Ashman reports:

"The MRI confirms that he has a degenerate and ruptured L5-S1 disc
space."

19. Dr Ashman discussed the prospects of a spinal fusion and discectomy, and this operation was performed on 25 September 1992 but, on Dr Ashman's evidence, it was not successful. His operation note reveals that the procedure was performed in the normal manner, and that the nerve roots were retracted and the bone graft and plates applied. Dr Ashman stated in oral evidence that, while this will normally relieve pain by holding the spinal bones in place and relieving the pressure on the nerves, in some patients excessive scarring will occur and place yet further pressure on the nerves, so that in fact the pain can be as great as, or greater than, before the surgery. Unfortunately this has been Mr Johnston's experience.

20. The uncontested medical evidence then is that Mr Johnston had a degenerative spine before the incident with Mr Goboly's dog. An MRI scan taken after the motor vehicle accident proved a rupture of the disc causing significant disability and pain, and as a result surgery was indicated. The surgery was unsuccessful, as is to be expected in a certain proportion of these cases, and as a result of the post surgical scarring, Mr Johnston continues to suffer extreme pain which is debilitating. This much is common ground.

21. What is at issue is whether the rupture of the disc was caused by the first or second accident. Drs Hutton and Ashman presented a compelling case for the second accident as the cause of the rupture, although it is conceded by both that the first injury may have predisposed Mr Johnston to such a rupture. Dr Ashman provides two explanations to support his view.

22. Firstly, he says that the rupture detected on the MRI scan of June 1992 would, if it was present, have been detected on the earlier CT scan in 1991. While an MRI scan is a significantly more sophisticated device for detecting many soft tissue injuries which would not show up on a CT scan, Dr Ashman was firmly of the view that a disc rupture would show up on a CT scan. In fact it was not detected.

23. His second reason for adopting his opinion was the result of the straight leg raising tests. The consequence of a disc rupture, it is accepted, is pressure on the nerve leading to extreme back pain. Dr Ashman is of the view that, if this was present at the time of his 1991 examination, that is, after the ladder fall but before the motor vehicle accident, the straight leg raising test would have been grossly restricted. Dr Ashman's view is that a 60 degrees straight leg raising test in 1991 is incompatible with the disc rupture and nerve pressure at the time, whereas the straight leg raising test in 1992, after disc rupture was confirmed by the MRI report, was consistent with disc damage, being limited to 10 degrees.

24. I was impressed by Dr Ashman's evidence. He was open in acknowledging the possibility of certain hypotheses put to him by counsel for the second defendant, and very much impressed as a medical professional who was seeking to get to the cause of the problem rather than plead a case for one party or another. While there certainly is a possibility, even a quite strong possibility, that the disc was in fact ruptured by the first accident, I am satisfied, on the balance of probabilities, that the second accident was the cause of this injury.

The Legal Attribution of Responsibility
25. The legal consequences of a string of contributing possible causes is, of course, different from philosophical or scientific notions of causation so that, as Mason CJ said in March v Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 509:

"At law, a person may be responsible for damage when his or her
wrongful conduct is one of a number of conditions sufficient to
produce that damage."

26. The law will recognise that successive tortfeasors may each contribute to a plaintiff's final injuries, and the courts

"...readily recognise that there are concurrent and successive causes
of damage on the footing that liability will be apportioned as between
the wrongdoers"

(per Mason CJ in March v Stramare Pty Ltd, op. cit. at 512).

27. In such a case, as in the present case,

"...the law's recognition that concurrent or successive tortious acts
may each amount to a cause of the injuries sustained by a plaintiff is
reflected in the proposition that it is for the plaintiff to establish
that his or her injuries are 'caused or materially contributed to by
the defendant's wrongful conduct' "

(ibid. at 514).

28. In making such an assessment the High Court has in Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 provided guidance as to the methods to be used in evaluating degrees of probability.

"When liability has been established and a common law court has to
assess damages, its approach to events that allegedly would have
occurred, but cannot now occur, or that allegedly might occur, is
different from its approach to events which allegedly have occurred"

(per Deane, Gaudron and McHugh JJ at 642).

29. Thus, while in looking at past issues a common law court will determine, on the balance of probabilities, whether a particular issue occurred or not, and if satisfied to the requisite standard of proof, regard that fact as proven and conclusive, it must necessarily adopt a different approach in considering hypothetical events.

"Thus, the court assesses the degree of probability that an event
would have occurred, or might occur, and adjusts its award to reflect
the degree of probability. The adjustment may increase or decrease
the amount of damages otherwise to be awarded"

(ibid. at 643).

30. In the present case, accepting as proven that the second defendant's negligence has caused loss to the plaintiff, it is necessary to apply these principles to assess damages. There is no question that the prior negligence of the first defendant had placed a significant question mark over the long term employment prospects of the plaintiff. He described himself upon return to work as 80 to 90 percent fit, although he understandably aspired to improve this condition. Dr Hutton agreed that his condition could have deteriorated at any stage independent of the motor vehicle accident, and that his employment prospects at the time of re-entry to the workforce could have been a matter of weeks or years. His work colleague, Mr Peter Lloyd, agreed that the work of a linesperson was heavy work.

31. It is therefore necessary, applying the above principles, to make a substantial reduction in the plaintiff's award for economic loss against the second defendant against the contingency that he would, in any event, have had to leave the workforce. In this case, on top of a normal 15% contingency which I find appropriate in this type of case, I find a probability of 25% that the plaintiff would have been forced out of full time employment as a consequence solely of the first defendant's tortious conduct. Accordingly, once damages for future economic loss are assessed, I attribute 60% of this loss to the actions of the second defendant, and 25% to the actions of the first defendant with a 15% contingency against the normal vicissitudes of life.

32. Since this matter was argued before me the Full Court of this Court has handed down the decision in Koech v Persic (Appeal from Master Hogan, Miles CJ, Gallop and Foster JJ, 26 March 1996) which confirms me in my view that the approach to contingencies that I have taken in this case is correct. I have taken particular note of the remarks of Miles CJ:

"In addition to the 'ordinary' vicissitudes, regard must be had also
to other contingencies of a particular kind which occur not
infrequently in actions for personal injuries. Such contingencies
relate to some disabling or defective physical (or even mental)
condition in the plaintiff which precedes the injury and which might
have continued beyond the date of the plaintiff's injury. Thus it has
been said that the damages must bring into account the possibility
that events, not of an unusual or unlikely kind, could and might in
the ordinary course of life, have evoked the plaintiff's post injury
condition had not the defendant's negligence intervened: Wilson v
Peisley (1975) 50 ALJR 207. It is a matter of judgment, not capable
of precise medical or arithmetical evaluation, depending upon the
nature of the condition, the inevitability or otherwise of its
progression, the degree of possibility of external events which might
contribute to its progression and so on."

(at p11-12).

Griffiths v Kerkemeyer Loss
33. It is clearly the law in Australia that when a plaintiff is so disabled as a result of the conduct of a tortfeasor to require assistance in day to day living activities, that requirement or need is a compensable loss, and is to be compensated even where the need is being met by personal services provided gratuitously by a spouse or family member. This principle, expounded in Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 is now unchallenged, and is regularly pleaded, as in the present case, as a discrete head of damages.

34. The law requires these damages to be assessed on the basis of the market cost of the services relevant to meet the need, not on the basis of any actual loss to a gratuitous service provider (Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327), although in assessing the need, account can be had of the mutual give and take normal for persons in a domestic relationship (Van Gervan v Fenton op. cit. per Brennan J at 341, Deane and Dawson JJ at 343).

35. The Australian position is to be contrasted to the British approach, where the House of Lords has recently held that, where a need has been created but is being met by services gratuitously provided, damages are to be assessed on the basis of the cost of meeting the need, but held in trust for the voluntary carer (Hunt v Severs [1994] UKHL 4; (1994) 2 All ER 385 at 394).

36. In assessing Griffiths v Kerkemeyer damages it is useful to return to the test as enunciated by Gibbs J:

"The matter should, as it were, be viewed in two stages. First, is it
reasonably necessary to provide the services, and would it be
reasonably necessary to do so at a cost? If so, the fulfilment of the
need is likely to be productive of a financial loss. Next is the
character of the benefit which the plaintiff receives by the
gratuitous provision of the services such that it ought to be brought
into account in relief of the wrongdoer? If not, the damages are
recoverable"

(Griffiths v Kerkemeyer, supra at 168-169)

37. As Brennan J put it in Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245 at 249 in respect of the first criteria,

"The tortfeasor is liable to pay for outside assistance if, but only
if, such assistance is reasonably necessary to satisfy the need
occasioned by the loss. If it is not reasonably necessary to bring in
outside assistance because the need can be met by the plaintiffs
themselves, damages are limited to an allowance for the increased
burdens (if any) assumed or to be assumed by the plaintiffs. If it is
reasonably necessary for the plaintiffs to bring in outside
assistance, the tortfeasor is liable to pay for that assistance. The
test of reasonable necessity to satisfy the needs created by the loss
draws upon contemporary social standards and expectations as well as
the particular circumstances of the case".

38. In order to establish a claim for Griffiths v Kerkemeyer damages it is thus necessary for the plaintiff to establish to the relevant standard of proof, being the balance of probabilities, the need for the services claimed. It is not sufficient to baldly state that, because a plaintiff can do no remunerative work, therefore they require domestic assistance. Nor, in my view, is it sufficient to rely solely on guesstimates from the plaintiff and his wife. In this case, on the basis of a claim that the plaintiff and his wife both felt that it was necessary for her to be around "all the time" , and taking for the basis of calculations, the ACT Home Help Service's published rates of charge out for domestic help, a claim for Griffiths v Kerkemeyer damages totalling over $1 million was presented at the hearing. I would expect, where damages of this magnitude are sought, that a detailed expert assessment of the plaintiff's real needs would be prepared, presented to the Court, and made subject to cross examination.

39. On the basis of the evidence of the plaintiff and his wife alone, I am not satisfied that a claim of this magnitude is made out.

40. While the plaintiff claimed a very limited ability to engage in domestic activities, he conceded under cross examination to have been involved in pushing a motor cycle, unaided and while his adult son looked on, up a ramp and on to a car trailer. He admitted regularly driving a large four-wheel drive vehicle, shopping (including purchasing and carrying, without observed difficulty, cases of beer) and walking about a rural property. He acknowledged that he had taken up metal work as a hobby (on the suggestion of his general practitioner) and to generally pottering about and keeping himself busy.

41. While the plaintiff claimed that he had to pay a person named "George" $10 to $15 per hour for two to three hours per week for assistance about the garden and household maintenance, no records were produced, nor was "George" fully identified. This is not sufficient proof to establish a liability on the defendant.

42. There were some inconsistencies between the plaintiff and his wife in respect of this claim. The plaintiff's wife claimed her assistance was needed to get the plaintiff's shoes on in the morning. At an earlier stage in the hearing the plaintiff had indicated that getting shoes on was not a problem with his back in its pre motor vehicle accident condition because of his preference for elastic sided footwear. This is a small point, perhaps, but it illustrates how another fundamental principle of tort law, the duty to mitigate a loss, is relevant to this type of claim. Plaintiffs can be required to undertake some alteration to their daily routines - say changing from lace up to soft sided footwear if a back injury prevents them from tying their bootlaces - in order to mitigate their loss prior to making a Griffiths v Kerkemeyer claim.

43. Brennan J's requirement to,

"...draw upon contemporary social standards and expectations as well
as the particular circumstances of the case",

(Nguyen v Nguyen, op. cit. at 249), compels me to look at this claim in comparison to the Griffiths v Kerkemeyer claim. In that case the plaintiff was rendered a quadriplegic,

"...wholly unable to look after himself. He has no control of his
lower limbs or trunk, he has limited control of his arms but none of
his hands which remain permanently clenched. He cannot feed himself
even with the aid of a special spoon. He cannot bathe or dress
himself, clean his teeth or shave. He has no control of his urinary
or excretory functions. He has no sensation below the shoulder line
and is therefore liable to injury if force is applied to his body. He
uses a special chair which he cannot operate himself, although he will
be able to operate an electric chair if, but only if, a house is
specially built for his needs. He suffers from repeated spasms and
cannot be left alone at night ..."

(Griffiths v Kerkemeyer, supra per Mason J at 182).

44. I cite this litany of misfortune from the leading case to try to assess this claim against Brennan J's test of "contemporary social standards". There is a world of difference between the circumstances of the present plaintiff and Mr Kerkemeyer. This does not mean that Mr Johnston has no claim at all, but it does raise real questions of reasonableness about a claim for near full time care at commercial rates. I also have some difficulty reconciling such a claim based on near full time duties by the plaintiff's wife with the fact, admitted in cross examination, that Mrs Johnston is in receipt of a pension, being classed as incapable of work due to repetitive strain injury.

45. As a matter of discretionary judgment I award the sum of $22,000 for Griffiths v Kerkemeyer loss with $2,000 attributed to the first defendant and $20,000 to the second defendant. In accordance with the practice of this Court I make no award for interest on the past component of this loss.

Calculation of Damages
(A) In relation to the first defendant
46. The plaintiff's general damages in relation to the first defendant should be assessed to cover pain and suffering arising primarily from the first injury to the point of the second accident. The evidence establishes that Mr Johnston suffered significant pain and restriction to his lifestyle during this period, but that his recovery was gradual, and no surgery was required. I award damages in the sum of $33,000, with $30,000 attributable to the period between the accidents, and interest of $3,170.96.

47. There was clear evidence before me of the past economic loss caused by this first accident, being the incapacity payments made out by Telecom in the sum of $23,858.48 for the period 7.12.90 to 9.10.91 which are repayable.

48. Calculations have been provided for future economic loss, based both on Mr Johnston's actual salary as a Communications Officer Grade 3 or assuming a promotion to the next grade. I am satisfied on the evidence that Mr Johnston was a tradesperson of particular skill, and that it is reasonable to assume that, had it not been for the two accidents, he would have achieved promotion to the level of Communications Officer Grade 4. I thus take $529.48 as an average nett weekly wage for the future, giving a present value for Mr Johnston's total economic loss of $432,267.47. I find that the bulk of this sum is attributable to the action of the second defendant, but I find a 25% probability that the first accident would have brought Mr Johnston's working life to a close. I accordingly award $108,066.86 against the first defendant for future economic loss.

49. Telecom has paid $9,067.51 for medical expenses in the period between the accidents, and I award this sum.

50. For the reasons set out later I find that some of the future treatment expenses which Mr Johnston will incur are attributable to the first defendant, and I award $21,692.42 under this head.

51. This amounts to an award against the first defendant in the sum of $200,856.23.

(B) In relation to the second defendant
52. General damages against the second defendant must take into account not only the pain and suffering attributable to the accident itself and its aftermath, but also the unsuccessful spinal operation. I am also conscious that Mr Johnston had been working very hard on his return to work, and the consequence of the second accident was to dash these hopes. In this sense he has suffered greater loss as a result of this accident than one would award looking at the second accident in isolation. I accept the plaintiff's and his wife's evidence that at one point the disappointment and distress at the relapse of his condition was such that he became suicidal. I also have regard to the fact that Mr Johnston's former heroin addiction presents particular difficulties for him in dealing with the high strength opiate based pain relief that is necessary for his ongoing back pain. Having been opiate dependent Mr Johnston has a real and genuine concern about his necessary medication regime.

53. I award $120,000 for general damages, $100,000 being for past pain and suffering. I have not taken into account in assessing general damages a claim that Mr Johnston's snoring is attributable to the accident. There is uncontradicted medical evidence that this has been under investigation since well before either tortious event, and I am not satisfied, on the balance of probabilities, that this is properly part of the plaintiff's claim. I note that he has received $50,503.76 by way of lump sum compensation from Telecom, which is repayable, and I adjust for this accordingly: in the calculation of interest in accordance with Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60, giving an interest component of $4,358.38.

54. Past economic loss from the date of the second accident to the hearing has been calculated at $102,600, and I award this sum plus interest calculated in accordance with the Practice Direction of $53,774.

55. For future economic loss I accept the same calculations based on Mr Johnston having now reached a more senior level, giving a total loss over his remaining life and discounted at 3% of $432,267.47. As I set out earlier in my reasons, I deduct from this sum, 15% for the normal vicissitudes of life, and a further 25% for the likelihood that the first accident would in any event have brought Mr Johnston's working life to a close, leading to an award of $259,390.49 for future economic loss.

56. An amount of $71,177.88 has been agreed to represent past medical expenses for the period since the second accident paid by Telecom and repayable. This figure is based on a sum of $121,681.64 which included a $50,503.76 lump sum payment, which I have already referred to.

57. There is a claim for future medical expenses against the second defendant based on the plaintiff's life expectancy and calculated on a 3% present value basis of some $15,888 for pharmaceuticals, $41,552.42 for future psychiatric counselling, and $29,329.25 for future general practitioner visits. I have no difficulty in accepting the calculations based on pharmaceutical expenses, and one home visit and one consultation per month from his general practitioner. This is consistent with the evidence of Dr Hutton. The evidence as to future psychiatric treatment was less clear - the plaintiff indicated that he expected to see Ms Creighton, his clinical psychologist, on a regular basis, and this is confirmed by a medical report from Dr Saboisky of August 1995 which refers to his need for ongoing counselling from Ms Creighton. This amounts in total to $86,769.67. In each of these claims I must recognise a contingency that some expenses would have been incurred in any event because of the first accident, and accordingly I apply a 25% contingency to these sums, leading to an award of $65,077.25.

58. This amounts to an award against the second defendant in the sum of $696,378.

59. I reserve the question of costs and grant liberty to apply in respect of costs on two (2) days' notice.