Maria Julia Cabrera v Frank Milton Jefree, Ronald Herbert Richards and Alexander Bell T/As Canberra Masonic Homes [1996] ACTSC 47 (31 May 1996)

SUPREME COURT OF THE ACT

MARIA JULIA CABRERA v. FRANK MILTON JEFREE, RONALD HERBERT RICHARDS AND
ALEXANDER BELL t/as CANBERRA MASONIC HOMES
No. SC 64 of 1994
MARIA JULIA CABRERA v. COLONEL CLINTS CRAZY BARGAIN STORES PTY. LTD.
No. SC 178 of 1994
MARIA JULIA CABRERA v. CHONG SUK CHOE
No. SC 68 of 1994
Number of pages - 14
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Damages - plaintiff suffers injury to neck and back in three different incidents - sues three different defendants in separate actions - difficulty in apportioning damages as between defendants - no matter of principle.

Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

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

HEARING

CANBERRA, 27 and 28 November 1995
31:5:1996

Counsel for the plaintiff: Mr. R.L. Crowe

Solicitors for the plaintiff: Pamela Coward and Associates

Counsel for Masonic Homes: Mr. M.B. Williams

Solicitors for Masonic Homes: Abbott Tout Harper Blain

Counsel for Clints: Mr. B. Hull

Solicitors for Clints: Crossin Barker Gosling

Counsel for motor vehicle insurer: Mr. G. Stretton

Solicitors for motor vehicle insurer: Abbott Tout Harper Blain

ORDER

THE COURT ORDERS THAT:
1. In matter No. SC 64/94 there be judgment for the plaintiff in the sum of $51,009.98, in matter No. SC 178/94 there be judgment for the plaintiff in the sum of $35,849.85 and in matter No. SC 68/94 there be judgment for the plaintiff in the sum of $45,448.24.

DECISION

MILES CJ Maria Julia Cabrera had the misfortune to suffer personal injury on three occasions within a space of a year. None of the injuries appeared to be serious at the time, but each built upon the effect of the other, so that in the end Mrs. Cabrera presented as largely incapacitated for work and suffering from chronic and debilitating pain in her neck and lower back.

2. The first injury was on 25 February 1993 when she was working as a supervisor at the Kalparrin Hostel, which was run by a number of persons trading under the name of Canberra Masonic Homes (Masonic Homes). She slipped whilst helping an elderly patient in the bathroom, suffering almost immediate low back pain and then about a month later, cervical pain.

3. The next injury was on 16 December 1993 when she chose to shop at Colonel Clint's Crazy Bargain Store at Belconnen. A box of about five kilograms in weight fell from a shelf and struck her on the head and left shoulder. She experienced immediate neck pain and an increase in low back pain.

4. The third injury was on 2 January 1994 when the vehicle she was driving was struck in the rear by another vehicle. The force of the collision must have been significant, judging by the photographs in evidence, which show the towing bracket of Mrs. Cabrera's vehicle bent upwards and into the rear bumper bar.

5. In three separate actions Mrs. Cabrera sued the employer, Masonic Homes, (originally in the Magistrates Court), the owner of the store (Clints), and the driver of the other vehicle, Ms. Chong Suk Choe. The driver played no part in the proceedings and was really no more than a nominal defendant. It is convenient to refer to the defendant in the action against the driver as the motor vehicle insurer. All defendants admitted liability and consented to the hearing of the actions together, the evidence in the one to be taken as evidence in the other. Ultimately, however, judgment is to be given for the plaintiff in each separate proceeding and it may be noted that there are no claims for contribution by any defendant against any other.

6. The substantial task is to try to award Mrs. Cabrera an appropriate sum in respect of each injury. It is not a task which can be carried out in all respects by the application of anything like scientific method. The result cannot be reached with exactitude. None of the many doctors who furnished reports were able to be precise in their view about the particular issues to be decided. Nor does the very nature of the issues allow them to be precisely decided. However, the Court cannot be imprecise about the damages to be awarded. Damages have to be in dollars and cents.

7. First, something about Mrs. Cabrera herself. She was born on 29 May 1936 and has had a varied career. She qualified as a nurse early in her working life. She has worked in various places as a secretary, a property manager and as a teacher. She joined Masonic Homes on 16 August 1990 and worked there as a supervisor until the time of her injury. She speaks several languages and has some experience as an interpreter. She has two daughters in their twenties. She lives with her husband, who gave evidence at the trial. No one suggested that I should not accept him as a truthful and accurate witness.

8. Mrs. Cabrera, like many people of mature years, had by the time of the first injury, a degenerative condition in her spine, both at cervical and lumbar levels. There were previous incidents in her life when she had suffered from back pain sufficient to cause her to seek medical attention and to cease work for short periods. It is not necessary to set them all out. The most recent, prior to the first injury, was when she lost two weeks or so from work in about 1987 or 1988 after developing back pain when lifting patients. However, she recovered completely and lost no further time from work until the incident on 25 February 1993. However, I conclude that the degeneration in her spine and particularly in the lumbar spine was such that it needed very little to trigger off symptoms both in the lower back and in the cervical region.

9. The incident at Masonic Homes occurred at about 3 p.m. when the plaintiff went to assist a patient in the bathroom. First the patient slipped, and Mrs. Cabrera went to catch her. She told one of the doctors that in this manoeuvre she herself lost her balance but managed to regain it by steadying herself on a doorframe. Despite the pain she managed to complete the shift she was working at about 8 a.m. She attended Calvary Hospital, by which time she had pain extending down both legs. She was given pain killers and on advice rested in bed. In further accordance with the advice, she saw her general practitioner, Dr Barraclough, as soon as she felt well enough to do so some days later. Dr Barraclough referred her to a physiotherapist and she received treatment as prescribed three times a week. Her low back condition began to improve, but then, after three or four weeks, she developed pain in the neck, not so bad as the pain in the lower back. She was referred to Dr Andrews and then to Dr Chandran. When Dr Chandran saw the plaintiff on 11 June 1993 he advised that an MRI scan should be taken within three months if her lumbar symptoms did not settle. The symptoms did not settle, nor did she return to Dr Chandran. Dr Chandran did not express an opinion about the connection between the neck symptoms and the injury, but it was clear that the injury at work had brought on symptoms in the pre-existing degenerative levels of the plaintiff's lumbar region. Dr Andrews' view was essentially no different.

10. The doctors could not do much for the plaintiff at this time, but with the continuing physiotherapy and use of anti-inflammatory drugs, and also the use of a neck brace from time to time, the plaintiff was getting to the stage towards Christmas 1993 when she was considering the possibility of returning to work.

11. Then came the incident when she was struck by the falling box at Clints. She did not lose consciousness, but the incident involved some sort of twisting or avoiding movement on her part, or so I infer. The neck pain, which had been resolving, increased substantially, with associated aches and pains particularly headaches. The lumbar pain increased also, but not to the same extent.

12. The motor vehicle collision was only a few weeks later. The plaintiff has no recollection of driving her vehicle after the collision or of anything else for several hours. Her neck pains further increased, according to evidence, and continued to do so. She continues to take pain-killing medication. Headaches increased after the motor vehicle accident and continued to bother her, acutely so, about twice weekly. She continues now much as she was by early to mid-1994. She takes pain-killers also for the headaches, which developed only after the incident at Clints, but tries the best she can to get by without such medication by means of practising relaxation techniques.

13. The plaintiff never returned to work after the incident at Masonic Homes. Her employment there was formally terminated in early 1994.

14. She has not returned to work although she has done "a bit" of voluntary teaching and was at the time of the hearing studying to become an accredited interpreter with NAATI. She hopes to be able to carry out that sort of work despite her symptoms and disabilities. She gets help around the house from her daughter, her husband and others. There is also a certain amount of assistance rendered by a community organization. Apart from very light housework, there is very little she does around the house.

15. The plaintiff said in evidence that her back pain at the present time is "there all the time" and that the neck pain "flares up", sometimes one being worse than the other, but generally she does not get both at the same time. Her accounts to the many doctors over the years have varied but slightly and from about the middle of 1994 she seems to have emphasised the back and leg pain rather than the cervical pain. There is considerable common opinion amongst the doctors that she could not go back to work involving lifting patients or doing anything of a heavy nature or which required prolonged standing or sitting. Her previous degenerative condition was such that she was at risk of developing symptoms and disabilities like those that now trouble her even if she had not been injured in any of the incidents for which she now brings proceedings. She was, in my view, a likely candidate to suffer injury from other relatively minor causes common in ordinary daily life.

16. According to her husband, the plaintiff has become introverted. Previously she used to swim two or three times a week at least during warm weather, but not now. They used to like ballroom dancing, but she cannot do that anymore. He said that part of their culture is "not to show pain" and, I think, consistently with that she tried to repress her symptoms and may have done so after the injury in the store, but her inhibitions in this respect were removed by the motor vehicle injury. Immediately after that injury Mr. Cabrera thought she was "a little bit gone in the mind". There is now a functional element in her condition which is to be recognized but which may resolve to some extent after the case is finished. However, I do not think that the plaintiff consciously exaggerated her symptoms either to the doctors or to the Court.

17. I propose now to distinguish between the effect on the plaintiff of the various injuries as a necessary but difficult step preparatory to assessing damages under the appropriate heads.

18. Naturally the condition between the first injury and the second is one for which only the employer is liable. As far as the injuries at Clints and the motor vehicle accident are concerned, the medical evidence is substantially in agreement that it is virtually impossible to distinguish the effect of one rather than of the other. The first injury stirred up symptoms in the lower back which were still continuing at the time of the second injury. However, the neck condition immediately before the second injury was resolving and could have been expected to have resolved some time in early 1994.

19. As to the condition in the lumbar spine, in my view, it was something which the second injury exacerbated to some extent and which the third injury exacerbated further. From early to mid-1994 until the present I think that the lumbar condition continued to contribute to some two-thirds of the plaintiff's symptoms and disabilities and the cervical condition contributed to one-third of her symptoms and disabilities.

20. It is relatively clear that the lower back has been troubling the plaintiff consistently ever since the first injury. Clearly it dominated throughout the period from the plaintiff's fall on 25 February 1993. In his first report of 7 May 1993, Dr Barraclough, who had seen the plaintiff several times at that stage, mentioned that the plaintiff complained to him of acute back pain following the lifting of a patient, radiating from the lumbar spine to both legs. Dr Barraclough mentioned almost in passing that she "has also started to develop neck pain". In his view, the plaintiff was already unfit for work involving standing for long periods or lifting or bending and that whilst he hoped for improvement over "some time", there was the possibility of her condition being exacerbated by degenerative arthritis.

21. Mr. Maher, the physiotherapist who treated the patient at first three times a week and later less frequently, described in his report of 8 November 1993 a significant lack of mobility in the lumbar spine and legs. Mr. Maher mentions nothing of the neck. However, there is other evidence that the plaintiff was receiving manipulations to her neck, and I think Mr. Maher's omission in this regard does not indicate that the plaintiff was lacking a troublesome neck, but does reflect the fact that the condition in the neck was overshadowed by that in the lumbar spine.

22. When Dr Barraclough examined the plaintiff after the second injury, he noted an abrasion on the left shoulder, stiff neck movements and very restricted back movements which made him consider that there was a temporary flare up of the lower back pain and soft tissue injury only to the neck. The proximity in time of the motor vehicle accident on 2 January 1994 prevents any precise evaluation of the effect of the injury on 16 December 1994. In retrospect, in my view, it is unlikely that there was any substantial aggravation to the lumbar condition, although the plaintiff at first may have thought that to be the case. The neck pain, however, soon worsened and was associated with other symptoms. In July 1994 Dr Barraclough injected cortisone into the left shoulder for impingement of the supraspinatus tendon. He thought that there was no connection with any injury and that aspect is not pursued on behalf of the plaintiff.

23. I review the rest of the medial evidence, starting with the treating doctors. Dr Andrews saw the plaintiff on 15 April 1993. A CT scan of the lumbar region taken about then shows a slight bulge at L3/4 and degeneration of the facet joints. The plaintiff made no complaints to Dr Andrews of neck pain and Dr Andrews diagnosed an aggravation of pre-existing degenerative problems in the facet joints of the lumbar region with likely recovery within six months of the incident. It is of significance that Dr Andrews felt that there were already functional aspects to the plaintiff's condition at that stage.

24. Dr Chandran saw the plaintiff on 11 June 1993. Whether being a neurologist he was more concerned with the spine as a whole, Dr Chandran obtained a history of neck pain from a month after the injury, which is in accordance with the complaints to Dr Barraclough and the plaintiff's evidence to the Court. Dr Chandran then caused a CT scan of the neck to be taken which showed abnormalities at C5/6.

25. The plaintiff visited Dr Chandran again after the subsequent injuries. Her complaints on 17 February 1994 were that "on the whole neck pain seems to be worse than back pain". Objectively, however, there was nothing to support the complaints of the increased neck pain at that stage.

26. When the plaintiff next saw Dr Chandran on 21 March 1995, Dr Chandran had the advantage of an MRI study of 25 October 1994 which showed protrusion at levels C4/5 with marked degenerative changes at C5/6 and C6/7. This seems to be in contrast to the scan which is mentioned by Dr Chandran as having been taken in October 1993 (which is not otherwise mentioned) and also inconsistent with x-rays of 6 January 1994. However, in my view, the MRI scan of 25 October 1994 yielded results which are consistent with the rest of the evidence. The plaintiff was advised to consider discography with a view to eventual cervical fusion. The plaintiff declined to follow this course after discussing it with Dr Barraclough. There is no suggestion that she failed to mitigate her damage in this regard and the possibility of an operation at some time in the future is still open.

27. The plaintiff had a number of falls during the years between the first injury and the hearing. These appear to have occurred when her right leg has given way. There is no connection between these falls and her spinal condition. Dr Chandran said that they are functional and in that sense they may be connected with the injuries. In my view, the plaintiff has failed to discharge the onus that any of the defendants are responsible for the falls, and as I understand it, the claim in that respect has been abandoned in any event.

28. The evidence of a medico-legal nature does not, in my view, advance the analysis of how the various injuries have contributed to the plaintiff's condition. Some of the opinions expressed are on matters which, with respect, it seems to me cannot be measured with precision or even evaluated on any scientific basis. It is therefore appropriate to be relatively brief in dealing with the medico-legal evidence.

29. Dr Owen White, neurologist, to whom the plaintiff had been referred by her solicitors, gave reports dated 10 November 1994 and 16 November 1995. Dr White was asked questions over the telephone at the hearing. The course was adopted so that he could be examined without inconvenience to him and his patients. Mr. Williams, for Masonic Homes, claimed that this put his client at a disadvantage, but I do not think that this is so. Further, Dr White was permitted by questions asked by Mr. Crowe, counsel for the plaintiff, to add to his reports by expressing a view that there was a causal link between the plaintiff's continuing neck condition and the injury at work. That was objected to by Mr. Williams and I deferred ruling on the question. The opinion expressed by Dr White over the telephone involved a breach of the rules of court, because leave is necessary for evidence to be given orally which is not covered by a report previously served upon an opposing party. I ruled that the evidence should be admitted subject to an order for costs. Ultimately, I think it makes no difference to the result whether the opinion expressed by Dr White over the telephone is admitted or not. I do not think that the plaintiff has established that the first injury would have caused neck pain which would have lasted beyond the middle of 1994, and I propose to assess damages on that basis.

30. It appears that when Dr White first saw the plaintiff on 10 November 1994 the lumbar and neck pain were contributing equally to her condition. He reported as follows and it seems to me to be entirely consistent with the rest of the evidence.
"Mrs. Cabrera is currently complaining of continuing pain in

the cervical region which is described as dull and constant but
increasing with activity into an acute pain which radiates to the
left shoulder. She has subjective weakness of the left arm. She
has a further complaint of equivalent low back pain. This is
also constant and intermittently associated with right leg pain,
usually once or twice per week until such time as she takes
analgesic medications."

31. When next seen by Dr White, prior to his report of 16 November 1995, the plaintiff appeared to be in "substantial distress" with substantially functional elements which Dr White had previously not noticed. The exact extent to which the lumbar and cervical conditions contributed to the plaintiff's symptoms as they continued beyond the beginning of 1994, I think, depends ultimately on an assessment of the plaintiff and her complaints. Dr White's view as to the contribution of each of the injuries is as follows:

1. The incident at work is a substantial cause of the lumbar
condition. The cervical condition such as it was would have
resolved if the subsequent injuries had not occurred, probably
within months.
2. The injury whilst shopping at Clints was a possible and
minor contribution to the back condition but is a substantial
cause of the neck condition.
3. The motor vehicle injury is also a substantial cause of the
neck condition and responsible only in a minor way for the back
condition.

32. Dr Keiller, who saw the plaintiff for Masonic Homes, considered that in the absence of immediate symptoms in the neck, the injury at work played no part in the neck symptoms at all. However, I am satisfied that the symptoms emerged sufficiently early for this aspect of the plaintiff's condition to be taken into account in the assessment of damages against Masonic Homes, but only in the limited sense which I have mentioned.

33. Dr Sinclair's view was that the shopping incident "possibly" aggravated the backache, particularly as she jerked or twisted to avoid the falling object and that it was also "possible" that she ruptured a disc in the neck either in the supermarket incident or in the motor vehicle accident or in both, but that the work incident could not have contributed to either condition.

34. Dr Johnston thought that the work episode was "essentially a jarring and weight sustained strain", which "caused a soft tissue injury of her lower back and aggravated the degenerative state of that region", but that the neck condition was practically resolved before the subsequent injuries and that only part of her continuing problems can be linked with the work incident and then only with respect to the lumbar spine.

35. Dr Iansek carried out a neurological assessment for Clints on 15 July 1994 and reported that "undoubtedly the prime cause of her complaint relates to her injury at work and these sorts of symptoms appear to perpetuate themselves upon a subconscious vicious cycle that once initiated continues on its own". This opinion is against the weight of the other medical evidence and reflects an assessment of the plaintiff as a person which at least to some extent conflicts with my own assessment.

36. Dr Joubert considered that the severity of the impact in the motor vehicle accident and the subsequent amnesia indicate "a previously under-emphasised hyperextensive injury to her neck ..... of significantly more import than the relatively mild injury" sustained in the supermarket accident. This opinion does not, in my view, give sufficient weight to the physical trauma of the injury in Clints Store and in particular ignores the twisting factor mentioned by Dr Sinclair.

37. Dr Milder, who reported to the motor vehicle insurer's solicitor on 13 September 1994 took a markedly more optimistic view than the other doctors. He thought that it was possible that the motor vehicle accident "aggravated to a slight degree lumbar and cervical soft tissue and ligamentous injuries", but that there was to be expected a resolution of the problems over a period of four to eight weeks and that headaches should respond to medication and resolve over time. Events have not justified that optimism.

38. Ultimately then, I return to the view of Dr White, as expressed in his report to which I have made reference. I accept the findings referred to as the most accurate assessment from a medical point of view as to the contribution that each injury has made to the plaintiff's overall condition as it has continued from the beginning of 1994. I would add that the plaintiff's back condition before 16 December 1994 probably would have resolved at some stage or other in the sense that it would have been overtaken by degenerative symptoms or the sequelae of other incidents. From the time of the first injury until January 1994, the assessment of damage requires more precise consideration, but in general from the middle of 1994 I regard the lumbar condition as contributing to two-thirds of the plaintiff's symptoms and disabilities and the cervical condition contributing one-third. It may be noted that the period between the injury at Masonic Homes and the injury at Clints is about one-third of the total period from the first injury to the time of the hearing. Applying these findings as to the contribution of each injury to the two aspects of the plaintiff's symptoms and disabilities from 1 February 1994 to the date of hearing, I attribute 20 percent to the injury at work, 35 percent to the injury in the store and 45 percent to the motor vehicle injury.

39. The assessment of damages in dollars and cents is complex. In some respects it is capable of exact mathematical precision and in other respects it can be no more than an exercise in value judgment. Some of the base figures such as out-of-pocket expenses are agreed and may be allocated arithmetically in accordance with the findings as to the relative attributions to the plaintiff's continuing condition. Others, such as future loss of earning capacity and pain and suffering are virtually at large. I deal with the various heads.

Past out-of-pocket expenses
40. The medical, physiotherapy and other expenses to 16 December 1993 amount to $9,528.91 and are recoverable from Masonic Homes. Similar expenses were incurred between 16 December 1993 and 2 January 1994. They amount to $254 and are recoverable against Clints. Similar expenses, referable to all three injuries in the proportions previously indicated, amount to $8,473.87. Of that amount I therefore award 20 percent against Masonic Homes, that is $1,694.78, 35 percent against Clints, $2,965.85 and 45 percent against the motor vehicle insurer, $3,813.24

Past loss of earning capacity
41. The earnings which the plaintiff would have made if she had remained working with Masonic Homes are agreed, being $12,597 (I assume on a net basis) from 25 February 1993 to 2 January 1994 and thereafter to the date of hearing $27,987. That is only a starting point, because the plaintiff may or may not have continued for the whole of that period with that employer. It is unlikely that she would have gone into less remunerative employment had she been physically capable of remaining in the workforce and the work remained available for her. But there is the very real contingency that she might have been incapacitated by other injuries or by degeneration. Her susceptibility to injury is illustrated by the very injuries for which she is about to receive judgment. The contingency that she may have been debilitated by degeneration and the ordinary stresses of daily life are more remote, but nonetheless real. I would discount the figure for the earlier period to $12,000 and the figure for the later period to $25,000, total $37,000. The first figure is recoverable against Masonic Homes only and the latter figure is to be attributed to the defendants in the respective proportions, namely, $5,000 against Masonic Homes, $8,750 against Clints and $11,250 against the motor vehicle insurer.

42. As to interest on past loss of earning capacity, the plaintiff has been paid worker's compensation of $31,190. I am unable to determine whether in respect of the period to 2 January 1994 the amount awarded for past loss of earning capacity ($12,000) exceeds the amount received by her by way of worker's compensation. The plaintiff bears the onus and in the absence of proof I assume that the award of damages does not exceed the worker's compensation received in respect of this period. Therefore no interest may be awarded in respect of this period.

43. Further, assuming that the award and the compensation for the period coincide, then in respect of the period from 2 January 1994 to date, the worker's compensation taken to have been received was the balance of $19,190 (total $31,190 actually received less $12,000 assumed to have been received). The award in respect of that latter period is $25,000. The result is that the plaintiff may be taken to have sustained an actual loss of about $6,000 on which it is appropriate to award interest. I assess that interest at $1,000, that is $200 against Masonic Homes, $350 against Clints and $450 against the motor vehicle insurer

Tax paid on worker's compensation received
44. The total claimed in accordance with the principle in Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438 by way of tax paid on worker's compensation received, is agreed at $6,205.29. The plaintiff has been paid worker's compensation over a considerable period, but I do not have details. In the first ten months or approximately one-third of the total period, whatever loss was suffered in this regard would have been wholly referable to the employment injury and should therefore be borne by the employer in respect of that period. In the period thereafter the loss should be borne amongst the three defendants in the proportions already indicated. Without pretending to arithmetical precision, I award in respect of the whole period $2805.29 against Masonic Homes, $1,600 against Clints and $1,800 against the motor vehicle insurer.

Domestic assistance
45. The rate agreed upon under this head (Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161) is $13 per hour. (The need for nearly four hours per week is established, that is about $50 per week.) Masonic Homes, therefore, is liable to 16 December 1993 for $2,200 and thereafter to the date of hearing for 20 percent of the remainder ($5,000) until date of trial, that is a further $1,000. Clints is liable for $1,750 and the motor vehicle insurer for $2,250.

46. As far as the future is concerned I award damages under this head for a period of seven years into the future, not being convinced that there will be any need for domestic assistance that will not have been overtaken in any event by the degenerative condition or by the inevitable ageing process that becomes the greater the longer a person lives. Further, discounting the total figure for the ordinary contingencies and the particular susceptibility of the plaintiff to further injury, I think that $10,000 is adequate for the future. In this respect I award $2,000 against Masonic Homes, $3,500 against Clints and $4,500 against the motor vehicle insurer. Future medical and medication costs

47. This is an extremely conjectural claim. The plaintiff claims the cost of continuing weekly physiotherapy at $48 per week and medication at $18 per week. Again the claim is made reasonably for seven years, but has to be discounted for the same reasons for which I discounted the claim for future domestic assistance expenses. I would discount further for the reason that I am not convinced that the physiotherapy will continue to render positive benefits for as long as seven years. Nor am I convinced that the cost of medication cannot or should not be met by some other source such as Medicare. On this basis I think that $5,000 is a proper sum for these components in the future. I award $1,000 as against Masonic Homes, $1,750 as against Clints and $2,250 as against the motor vehicle insurer.

48. As to the cost of an operation to fuse the plaintiff's cervical spine (estimated at $10,000), the evidence supports only the possibility that such an expense will be incurred and only the possibility that if it is incurred it will be as a result of the liability of any of the defendants. The plaintiff is entitled to damages to compensate her for the contingency bearing in mind the remoteness of its eventuality. I think that the connection with her work injury would be so conjectural that Masonic Homes should not be expected to contribute now to the expense of that remote possibility. I would therefore apportion the cost of the contingency of operative treatment equally between Clints and the motor vehicle insurer and in this respect I would not assess the present value of the contingency at more than $2,000, that is to say, $1,000 against each of those defendants.

Future loss of earning capacity
49. The plaintiff was aged nearly 60 at the time of the hearing. She said that at the time of the injury at work she intended to continue working to age 65. No doubt she had that intention. Whether she would or could have carried it out is another matter. Although her degenerative spine had not caused her any lasting trouble at the time of the injury at work, it was well possible, in my view, that some event like one of those that gave rise to her present entitlement to damages would have befallen her before she reached the intended retiring age. Other events such as illness intervening, or enforced redundancy, might have brought about retirement earlier than she had been expecting. The plaintiff's husband (whom she helped in his food stall at the Gorman House Markets of a weekend) used to work with her when she was in home care service and said, "Everybody used to hurt their back". Furthermore, the plaintiff may have chosen to go into less physically demanding work such as interpreting, for which she is equipped and could have become professionally equipped with or without her various injuries. On the evidence it is likely that she will become an accredited NAATI interpreter (if she has not already done so by the time of the judgment). She has not lost totally her earning capacity. Bearing in mind that her pre-injury wage was the modest sum of $285 per week and that she is capable of earning at least half that as an interpreter, I estimate a loss of earning capacity into the future at $150 per week. At a discount investment rate of 3 percent, that loss over the period of 5.5 years into the future, gives a figure of $39,750, which I would discount to $25,000, and award $5,000 as against Masonic Homes, $8,750 against Clints and $11,250 against the motor vehicle insurer.

Pain and suffering
50. For pain and suffering and loss of enjoyment of life, I award $32,000 in all, as to which I apportion $20,000 for the past. On this past component, it may be possible to calculate interest against the various defendants, but the exercise is so artificial that in lieu thereof I award a lump sum of $1,000 in the exercise of discretion, to be apportioned among the defendants.

51. As between the defendants in respect of the past, I award $9,500 against Masonic Homes, $4,500 against Clints and $6,000 against the motor vehicle insurer. In respect of the interest I award $475 against Masonic Homes, $225 against Clints and $300 against the motor vehicle insurer.

52. Of the future component of $12,000 I award $2,400 against Masonic Homes, $4,200 against Clints and $5,400 against the motor vehicle insurer.

53. In summary then, the assessment of damages, undifferentiated as between defendants, is as follows:

Past out-of-pocket expenses $ 18,256.78
Past loss of earning capacity $ 37,000.00
Interest on past loss of earning capacity $ 1,000.00
Tax paid on worker's compensation $ 6,205.29
Past domestic assistance $ 7,200.00
Future domestic assistance $ 10,000.00
Future out-of-pocket expenses $ 7,000.00
Future loss of earning capacity $ 25,000.00
Pain and suffering, etc. $ 32,000.00
Lump sum in lieu of interest on past
payment for pain and suffering, etc. $ 1,000.00
Total: $ 144,662.07

54. This is a relatively modest total sum but it does reflect, as it must, the plaintiff's age at the date of injury and her degenerative condition at the time.

55. I apportion the damages as between the defendants and the plaintiff is to have judgment based on the following:
First defendant - (Masonic Homes)

Past out-of-pocket expenses $11,223.69
Past loss of earning capacity $17,000.00
Interest on past loss of earning capacity $ 200.00
Tax paid on worker's compensation $ 2,805.29
Past domestic assistance $ 3,200.00
Future domestic assistance $ 2,000.00
Future out-of-pocket expenses $ 1,000.00
Future loss of earning capacity $ 5,000.00
Pain and suffering and loss of
enjoyment of life $11,900.00
Interest on past pain and suffering and
loss of enjoyment of life $ 475.00
Total: $54,803.98

Second defendant - (Clints)

Past out-of-pocket expenses $ 3,219.85
Past loss of earning capacity $ 8,750.00
Interest on past loss of earning capacity $ 350.00
Tax paid on worker's compensation $ 1,600.00
Past domestic assistance $ 1,750.00
Future domestic assistance $ 3,500.00
Future out-of-pocket expenses $ 2,750.00
Future loss of earning capacity $ 8,750.00
Pain and suffering and loss of enjoyment of life $ 8,700.00
Interest on past component of pain and
suffering and loss of enjoyment of life $ 225.00
Total: $39,594.85

Third defendant - (Motor vehicle insurer)

Past out-of-pocket expenses $ 3,813.24
Past loss of earning capacity $11,250.00
Interest on past loss of earning capacity $ 450.00
Tax paid on worker's compensation $ 1,800.00
Past domestic assistance $ 2,250.00
Future domestic assistance $ 4,500.00
Future out-of-pocket expenses $ 3,250.00
Future loss of earning capacity $11,250.00
Pain and suffering and loss of
enjoyment of life $11,400.00
Interest on past component of pain and
suffering and loss of enjoyment of life $ 300.00
Total: $50,263.24

56. However, as there is considerable room for mathematical error in my calculations, I will defer making orders for judgment until the parties have had a chance to study these remarks and for that reason I will stand the matter over to an early date for mention or further argument.

57. I propose also that unless the parties wish to be heard on costs, I will order that in each action the defendant pay the plaintiff's costs to be taxed or assessed, except the costs of Dr White being called to answer questions over the telephone. Plaintiff's counsel used that opportunity to have Dr White express views outside those expressed in his report which is a course contrary to the Rules of Court and the policies of pre-trial exchange of experts' reports and the defendants should not have to contribute to the plaintiff's costs of taking that course.