Stuart Walton v Corporate Venture Pty Limited and John Holland Constructions Pty Limited T/A Concrete Holland Joint Venture [1996] ACTSC 55 (6 June 1996)

SUPREME COURT OF THE ACT

STUART WALTON v. CORPORATE VENTURE PTY LIMITED AND JOHN HOLLAND CONSTRUCTIONS
PTY LIMITED t/a CONCRETE HOLLAND JOINT VENTURE
No. SC 808 of 1994
Number of pages - 12
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Damages - industrial injury - twisting injury to knee in fall - continuing symptoms in knee - no medical reason advanced for continuation of symptoms - no medical evidence of competing hypothesis as to causation other than through injury in fall - continuing inability to engage in particular activities required in fire rating work at time of injury - whether such work would have continued without injury - continuing capacity for wide range of activity including present employment as truck driver - plaintiff a young man of initiative capable of running small business - impossibility of fixing loss of earning capacity by reference to periodic loss.

Adelaide Stevedoring Company Limited v. Forst [1940] HCA 45; (1940) 64 CLR 538

HEARING

CANBERRA, 21 and 22 November 1995
6:6:1996

Counsel for the plaintiff: Mr. R. Mildren

Solicitors for the plaintiff: Vandenberg Reid

Counsel for the first defendant: Mr. G. Parker

Solicitors for the first defendant: Macphillamy Cummins and Gibson

Counsel for the second defendant: Mr. J. McIntyre

Solicitors for the second defendant: Crossin Barker Gosling

ORDER

THE COURT ORDERS THAT:
1. There be judgment for the plaintiff against both defendants in the sum of $150,000.00.

2. Proceedings between defendants for contribution be dismissed with no order as to costs.

DECISION

MILES CJ The plaintiff sues for personal injuries received whilst he was working on the Parliament House site on 3 May 1988. His employer was the firstnamed defendant. The job involved fire-proofing work (called "fire-rating") under sub-contract to the second defendant. The plaintiff received his injury when he was leaving one of the temporary huts which provided facilities for construction workers. The linoleum on the floor of the hut was in a worn condition and caused him to trip just as he was about to step through the doorway. In effect, he was catapulted out the door and down or over some steps, falling about a metre to the ground. During the course of the hearing both defendants admitted liability. There will accordingly be judgment for the plaintiff against both defendants and I proceed to the assessment of damages.

2. The plaintiff was born on 9 October 1960 at Young, New South Wales. He left school in Year 10. He completed an apprenticeship as a motor mechanic and gained experience in the servicing of motorcycles and small engines in a motorcycle shop at Young. After some months experience overseas, he came to Canberra in 1986, working first as a plant operator and then as a labourer. On 28 January 1987 he obtained employment with the first defendant as a labourer. The work of fire rating in a building involves putting into effect various measures for passive fire control. In particular, various apertures and gaps in a building are sealed so that if a fire breaks out it can be contained within a particular part of the building and not spread. This was a fairly new area of practice and expertise in the building construction industry. The plaintiff quickly gained experience in this sort of work and had become a leading hand by the time of his injury.

3. The plaintiff was in good health at the time of his injury, although he had had injured his neck and his left ankle whilst motorcycle racing in about 1982. He had recovered from those injuries at the time of the injury in respect of which he now sues.

4. The plaintiff described his fall as follows:
"My front of the foot caught on the front of the lino so I

basically couldn't bring it forward. I tripped forward. I
placed my right foot - just caught the edge of the step. I went
over on to the concrete below, twisted my knee, landed on the
knee, and then went over on my elbow and just sort of belted my
head a little bit on the concrete."

5. Immediately after the injury the plaintiff went to the sick bay on site where his knee was packed in ice. He was taken by a colleague to Woden Valley Hospital and x-rayed. He was off work that day and the next. He went to see a general practitioner in Kambah, who gave him a certificate to stay off work for some days.

6. He received a letter from Woden Valley Hospital to return for further x-rays, which he did.

7. When he returned to work he was placed on light duties which meant that he could not in particular crawl through confined spaces or negotiate ladders, which would otherwise have been required of him in his particular line of work.

8. The plaintiff's right knee continued to give him trouble despite physiotherapy and the administration of anti-inflammatory drugs (and orthosis).

9. He was eventually put off work on the Parliament House job on 19 August 1988 and after some time obtained employment in his home town, Young, as a welder's assistant. He appears to have been able to cope with that work despite continuing trouble with the right knee and was promoted to being the offsider to the welding supervisor.

10. After the job with the welders finished on 7 March 1989 the plaintiff submitted to an arthroscopy on 21 March 1989 which was performed by Dr Cairns, to whom he had been referred by Dr Still between jobs. The procedure involved the morning in hospital, but it was followed by swelling and pain in the knee, so that the plaintiff was not able to walk properly for another 10 days.

11. In the meantime a colleague from the Parliament House project, a Mr. Ken Campbell, had joined another company in the business of fire rating contracting. He offered the plaintiff work with that company, Insulmat. When the plaintiff had recovered from the arthroscopy he accepted the job offer with Insulmat and began there on 7 April 1989. Although he had followed a course of exercises recommended by the physiotherapist, his knee was still feeling sore after the operation. It would occasionally give way, although it did not cause him to fall over. Sometimes there would be a clicking noise, followed by aching. Apart from the clicking noise which apparently did not recur after six weeks or so elapsed from the arthroscopy, the plaintiff's condition, according to his evidence is much the same now, seven years later, as it was then. He described it as "like a toothache. It's not a piercing straight out pain ..... It's there constantly".

12. In August 1979 Mr. Campbell left Insulmat in order to go into business himself and he offered the plaintiff another job in Melbourne. The plaintiff accepted. The plaintiff was unemployed between the time he left Insulmat on 11 August 1989 and the time he began with Mr. Campbell. There is no allegation that he was incapable of carrying out the work with Insulmat, although he continued to experience trouble with his knee during that time. On 14 September 1989 he commenced work with Campbell's Contracting Services in Melbourne. It was similar to the sort of work he had done at Insulmat, which was similar to the work he had done at Parliament House, except that the later work involved fire control procedures in high rise buildings. The work with Mr. Campbell involved long hours, usually sixty hours worked over six days a week, with penalty payments and overtime paid.

13. The plaintiff then decided to take six months off for family reasons. He quit on 31 October 1989 and returned to Young. His second child was born during this time. There were further negotiations and he returned to work with Mr. Campbell in Melbourne on 17 April 1990. He entered into a contract with Campbell's Contracting Services for that purpose and moved his house and family from Young to Melbourne. The work involved climbing up and down ladders in order to get access to various ducts. The work was on high-rise buildings and most of the time it involved climbing stairs rather than taking the lift. At night the plaintiff would suffer from an aching knee, again what he described as "the dull toothache type sensation". If the plaintiff had to kneel in one of the confined spaces, he would use a fire pillow which he would tape to his knee in order to relieve the pressure. He appears to have been able to manage to squat for short periods, presumably in order to avoid kneeling.

14. In early 1991 he saw Dr Kemp and then Dr Shannon, an orthopaedic surgeon. They discussed another arthroscopy (see Exhibit E).

15. The plaintiff's knee continued to ache during the course of his work and on 4 September 1991 he returned to Canberra and saw Dr Cairns. Shortly before 25 November 1991 the plaintiff and Mr. Campbell discussed the plaintiff's knee complaint. Mr. Campbell commented that it was not getting any better and there was a mutual decision to part company on that date.

16. The plaintiff and his family then returned to Young. At this stage the plaintiff found that if he spent a full day in physical activity, whether at work or at home, he would have an aching knee by night time. It would disturb his sleep.

17. After he returned to Young the plaintiff received an offer from another former workmate, Mr. Hunt, who had gone into the fire-rating business, but he declined to accept that offer. Mr. Hunt was aware of the plaintiff's physical limitations but made the offer nevertheless.

18. On 2 March 1992 the plaintiff found a job as a truck driver with a supplier of landscaping materials in Young. He was still at this work at the time he gave evidence. It is clearly a job that involves a fair degree of physical activity, driving the pre-mixed concrete according to demand. He also drives a frontend loader in the yard for the purpose of filling trailers and vehicles with landscaping materials. That work also involves sweeping up spillages, using a broom, wheel-barrow, shovel and so forth.

19. The plaintiff considers that his present work is not nearly as arduous as when he was working in the fire-rating area. He has no complaint about working an eight hour day in his present occupation. However, he claims that would have remained in the building industry if he had not injured his knee. He is not interested in using his qualifications as a motor mechanic, because it involves repetitive work involving the knee.

20. He is no longer able to ski on water or on snow, although he does not appear to have been very active in the latter before his injury.

21. In his present occupation the plaintiff does not suffer from swelling in the right knee, but sometimes it aches and it wakes him up at night. This occurs only once or twice every fortnight, compared with the situation when he was working in Melbourne when it occurred every night.

22. The plaintiff found that driving for an extended period caused pain in his right knee but he has alleviated that by buying a car with cruise control. He says that he is able to walk up and down stairs but he will get pain in his knee the same night on occasions from such activity. Sometimes after a heavy day's work he has a stiff knee the following morning. Cold weather makes the knee sore.

23. In 1994 the plaintiff bought 100 acres in the Young area and had it planted with 4,200 trees. This was achieved by the use of a tree- planting machine, towed by a tractor. They are mostly cherry trees, with some plum trees. He hopes to make a commercial operation of it, but it will be some years before the trees bear marketable fruit.

24. I turn now to the medical evidence.

25. After being referred by the Woden Valley Hospital authorities to a general practitioner, the plaintiff was then referred by the general practitioner to Dr Robert Still who practises as and at the Sports Medicine Centre. The history given to Dr Still was of a twisting injury in which the plaintiff had tripped, sustained an extensive rotation injury and subsequently landing on the antero-medial aspect of the right knee. Dr Still found no effusion of the knee and a full range of movement. However, there was tenderness to palpation over the medial patella facet and medial reticulum. A patello-femoral compression test proved positive.

26. Dr Still considered that the plaintiff was suffering from patello-femoral arthralgia following contusion to the right knee as a result of the injury on 3 May 1988. Dr Still prescribed further physiotherapy, but the plaintiff returned to him on 3 June 1988 complaining of severe pain at night. Dr Still added to the treatment a short, intensive course of a pain-killer, Prednisolone, and the use of an orthosis in the right shoe. On review on 27 July 1988 the plaintiff complained of increased pain, being absent in the morning, increasing through the day and aching at night and in cold weather. Examination revealed persisting tenderness over the medial femoral condyle. Dr Still thought the intensity of symptoms unusual for such an injury, but the duration typical. He anticipated that the symptoms would virtually settle within weeks or months.

27. This was not to be. When next seen on 28 November 1988, the plaintiff, consistent with his evidence to the Court, was back complaining of the same knee pain as previously described keeping him awake at night and being aggravated by driving a motor vehicle. He claimed also of stiffness in the knee after squatting, but without locking or swelling. Although the knee appeared, upon examination, to be practically normal, Dr Still referred the plaintiff to Dr Anthony Cairns, an orthopaedic surgeon.

28. Dr Cairns first saw the plaintiff on 16 January 1989 and the history given and findings on examination were virtually the same as what was elicited by Dr Still. Dr Cairns made the provisional diagnosis of an articular injury within the patello femoral compartment or alternatively a tear of the medial meniscus. In view of the failure to respond to conservative measures, Dr Cairns advised arthroscopy and this was carried out on 21 March 1989. No abnormality was found except for division of a medial synovial plica which Dr Cairns described as a "normal anatomical variant", but which was such as to "provoke and aggravate ongoing symptoms related thereto". The plica was resected.

29. When next seen on 4 May the plaintiff continued to complain of the same symptoms as before the operation. Clinical examination revealed no abnormality at all. A series of tests taken following a review on 11 September also revealed no abnormality. Similarly, on 6 November 1989 the plaintiff reported aching over the antero medial aspect of the knee at the end of the day and after periods of increased activity. There was swelling but no longer any clicking of the knee. At this stage Dr Cairns attributed the knee pain to patello-femoral arthralgia (as had Dr Still) which he appears to have felt was a diagnosis of last resort. Dr Cairns referred the plaintiff to a muscle building home exercise program, anticipating ongoing occasional trouble which might require intermittent periods of physiotherapy and anti-inflammatory and analgesic medications.

30. On 25 February 1991 the plaintiff was referred by Dr W. Kemp of Collins Street, Melbourne to Dr Michael Shannon of East Melbourne. Dr Shannon reported to Dr Kemp, noting that the plaintiff "finds that he can do all that he needs to at work, but the knee is painful at night", that the plaintiff complained of a constant dull ache, aggravated by kneeling, squatting or climbing ladders. Dr Shannon thought that the plaintiff's condition was consistent with chondromalacia and that that diagnosis was supported by tenderness elicited on compression of the patellar. Dr Shannon advised that further arthroscopy might assist, but with no more than a fifty-fifty chance of success. The plaintiff declined to submit to further arthroscopy and it is not suggested that he failed to mitigate his loss in that regard.

31. On 21 May 1991 the plaintiff was examined by Dr Noel Sherson of Carlton, Victoria, a general and gastroenterological surgeon, on behalf of the first defendant's worker's compensation insurer. His report is useful for its recording of the plaintiff's description of the incident which is in terms more comprehensive and precise than the plaintiff's somewhat attenuated description in his evidence to the Court.

"He fell, or perhaps one could best describe it as jumped,
approximately one metre to the ground. He stumbled, twisting his
right knee. He heard the knee crack and there was immediate
pain. There was no direct injury to the knee cap. He did not
land on the knee cap."

32. Dr Sherson explained in relation to Dr Cairns' reference to patello-femoral arthralgia that:

"..... this is not a diagnosis but a statement of symptoms
being that Mr. Walton has joint pain in the patello-femoral
compartment of the right knee without any pathology being
evident."

33. I accept that as a fair and accurate commentary on Dr Cairns' expression of opinion.

34. Dr Sherson found on examination no evidence of chondromalacia, which accords with Dr Cairns' finding on examination. On examination by Dr Sherson, there was no pain elicited on compression of the patella. Dr Sherson thought the plaintiff's explanation of well developed thigh muscles was consistent with his symptoms. Dr Sherson also thought that in the early stages when first seen by Dr Still, the plaintiff had exhibited a remarkable recovery.

35. On examination Dr Nield found no patella tenderness and no abnormality whatsoever. He thought that the plaintiff was fit for all duties. He noted that the only complaint the plaintiff made was of pain in the right knee present "eighty percent of the time, which was brought on by driving long distances, standing on a ladder, squatting or sitting". Dr Nield said that the plaintiff was still enjoying water-skiing and snow-skiing. Dr Nield made the same finding on 21 June 1995 when the plaintiff was still complaining of an ache in the right knee, like a toothache, during prolonged kneeling and prolonged time on steps or ladders.

36. In cross-examination Dr Nield agreed that if the plaintiff had suffered a direct blow to his knee, then it might have resulted in chondromalacia, possibly converting into an arthritic condition over time. Dr Nield saw no signs of such arthritis and if it had occurred, it should have manifested itself on x-rays by the time of the hearing.

37. The plaintiff was re-assessed by Dr Still on 16 February 1995. Dr Still repeated his earlier view about right patello-femoral arthralgia and that the plaintiff was resigned to accepting the knee as it was rather than submitting to a further arthroscopy. The plaintiff told Dr Still that he was able to undertake his pre-injury sporting and social activities but that the knee became painful after such activity as a result of which he had ceased to play sport and had left the building industry in order to avoid frequent use of steps and ladders.

38. Put at its highest, on the medical issues, the plaintiff's case has to go to the fall back position, relying on what was referred to by Rich ACJ in Adelaide Stevedoring Company Limited v. Forst [1940] HCA 45; (1940) 64 CLR 538 at 564 as "the presumption which flows from the observed sequence of events".

39. In his report of 4 September 1991, Dr Cairns states that he cannot establish "any clear relationship between these ongoing complaints and the nature of the claimant's injury sustained on 3 May 1988 and the fact that his knee was virtually normal at arthroscopic examination". It was only in response to a letter written by the plaintiff's solicitor that Dr Cairns expressed the view in a later report of 11 November 1991 that on the balance of probabilities he would have to agree that the complaints were related to the accident. The view expressed in those terms and in those circumstances is not necessarily of high persuasive value. By inference I take it that Dr Cairns also considered that the condition that gave rise to the plaintiff's complaints was causally related to the accident. The mode of expression is, I think, significant. In answering the solicitor's questions and expressing his view on the "balance of probabilities" of a causal connection lacking any basis of medical diagnosis or categorization, Dr Cairns was, I think, stepping outside the bounds of his discipline. I say that without criticism because, in view of the solicitor's letter, he could hardly do likewise. No doubt it was proper for the solicitor to seek from him and to tender Dr Cairns' advice. The old rule that an expert may not express an opinion on the ultimate issue that a court has to decide, died long ago and was buried by s.80 of the Evidence Act 1995. But there is for practical purposes, an immense difference between a doctor advising lawyers as to his opinion on the ultimate issue and the lawyer tendering that advice in proof of that issue. I do not think that Dr Cairns' view, as a matter of probative weight, goes beyond establishing that whilst there is no medical explanation for the plaintiff's symptoms, medical science cannot exclude the hypothesis that the plaintiff's symptoms are due to some condition, undetermined by medical science, that is itself causally related to the injury. In the absence of some competing hypothesis to the effect that the symptoms are related to a medical condition known not to relate to the injury, then it is open to the Court to decide as a tribunal of fact that it is satisfied on the balance of probabilities of the causal connection. That is as I understand it, the import of what was said in Adelaide Stevedoring v. Forst as applied in the circumstances of the present case.

40. I do not think that the evidence in the present case raises any hypothesis contrary to the hypothesis that there is a causal connection between the plaintiff's symptoms and a condition medically undetermined which condition itself is resulted from the plaintiff's injury. The chronology is sufficiently exact and the plaintiff's symptoms so consistently experienced and described, that on the probabilities I think that the pain that he gets in his knee after long and strenuous activity, particularly when bending or crouching or crawling, must be due to some malfunction in the knee which was initiated by the fall in 1988. I do not think that it is necessary or even possible to decide that he fell directly on to his knee. It was obviously a fall that occurred suddenly and unexpectedly. It is not unlikely that there was some twisting as he fell. Whether his foot or feet or some other part of his body struck the ground before his knee did so does not seem to me to matter. There was, as I see it, a very substantial impact between his knee and the ground. The mechanism of the knee is a notoriously complex one. My conclusion on the question of causation coincides with that of Dr Cairns.

41. It is reasonably clear from the evidence that the plaintiff's physical incapacity for work does not go beyond being unable without pain at the end of the day to work from ladders, kneel or squat for extended periods, climb up and down stairs or to work in confined spaces. The level of pain is and at all relevant times had been such that it is and was reasonable that he give up employment involving those sorts of activities. Accordingly, the plaintiff is in practical terms precluded from much work in the construction industry, and in particular the work required by an employer in the fire rating section of that industry. The plaintiff's incapacity does not render him incapable of following his present occupation or any similar occupation, nor does it make him incapable of continuing to look after his cherry orchard. As far as the latter is concerned, I am not persuaded that it is likely that the injury will ever incapacitate him in any way which will be reflected in diminution of earning capacity.

42. If the plaintiff had not been injured, I think that it is likely that he would have continued to work in the fire rating industry so long as circumstances permitted. But the evidence does not persuade me that the work would have been available consistently and continuously, nor that it would continue into the future. That particular section of the construction industry was but newly emerging and is generally only available in connection with the construction of high-rise buildings (Parliament House being a notable exception). This sort of work is available only to those who live in urban areas where such buildings are likely to be constructed. It is impossible to predict that if the plaintiff had not been injured that he and his family would have chosen to live permanently or for substantial periods in any such area where fire rating work was continuously available.

43. However, I think that the evidence is sufficiently persuasive that the injury deprived the plaintiff of the opportunity to stay working in Campbell's Contracting Services for some time and the award for loss of earning capacity must reflect that factor.

44. The level of remuneration in the fire rating business was, on the evidence, abnormally high compared with other occupations within the construction industry. Why this should be so is unclear as the work does not appear to require training or long experience or even much expertise. The high level of remuneration in the past has most likely simply reflected the shortage of supply of people with a modicum of experience like the plaintiff. I think it likely that if the plaintiff had stayed in the fire rating industry then he would have found that the level of remuneration would have dropped as business became more competitive and more firms entered the market. There was a fairly remote chance that he might have followed the path of his former colleagues and gone into business on his own account (and may yet do so). Whether the business would have been successful, of course, is only a matter of guesswork.

45. The plaintiff has rejected any suggestion that he quit Campbell's Contracting Services for family reasons only and I accept this. I think that it was reasonable, having regard to the levels of pain that he was experiencing at the end of the day, and after discussing his future with Campbell for him to quit the fire rating industry. However, the evidence does not convince me that there was more than a bare possibility that, without the injury, work at a remunerative level equal to that at Campbell's Contracting Services would have been available to the plaintiff continuously after the time he left that employer. The plaintiff is to be compensated only for the chance that he lost the opportunity to take that work as and when available and as and when acceptable. On his return to Young he obtained work within his capacity as soon as it was reasonably available to him and there is no reason to consider that it will cease to be available.

46. There must also be taken into account the fact that the plaintiff has engaged in other activities which must be regarded as reflecting a capacity to earn income. He and his wife some years ago bought land in Young and built the family home on it. They sold it, bought more land and repeated the exercise. Since the plaintiff's injury they have purchased a third block of land and built their present family home on it. This process has yielded financial benefits. They no longer have a mortgage over the family home. Both before and after his injury the plaintiff contributed somewhat modestly by his own efforts in landscaping and working as a builder's labourer in effect whilst the various houses were in the course of construction and this again reflects a continuing earning capacity as well as the exercise of initiative.

47. There is also the matter of the plaintiff's cherry orchard. It is his intention to harvest the crops after the trees first begin to bear fruit of a commercial value, which is still some years away. Whilst the plaintiff used contractors to plant the trees and to fence the property and will use contractors for harvesting and pruning, there can be no doubt that the venture will require physical work, which he regards himself as capable of performing and which if he chose to put at the service of someone else would be income producing.

48. The plaintiff's claim, or rather the claim made on his behalf, for loss of earning capacity is for damages at a level which is, in my view, out of all proportion to his injury and the limited nature of disability. The claim for past and future loss of earning capacity amounts to almost half a million dollars. It is based upon fixing the plaintiff's earning capacity but for injury by reference to his earnings whilst working for Campbell's Contracting Services less the actual amount earned by him since he stopped working for that employer. It is submitted on the plaintiff's behalf that that is at least a conventional way of approaching the assessment of the loss of earning capacity in the past. It is submitted for the defendant, on the other hand, that that method is inappropriate in the circumstances of the case, particularly in the light of the plaintiff's ongoing vigour, good health, present absence of symptoms and the unusual and uncertain nature of employment in the fire rating industry. The defendants submit that the plaintiff should be awarded no more than a sum to constitute a buffer against the chance that but for the injury he might have worked in the fire rating industry.

49. The case is one in which neither approach seems particularly appropriate. There was more than just a chance that the plaintiff would have worked at least for some time in the fire rating industry and there was more than just a chance that that work might have been more remunerative than the work he is now doing. But the chances were not high and I do not think it realistic to consider that the plaintiff has sustained a quantifiable periodic loss of earning capacity. The selection of an ultimate figure for loss of earning capacity, past or future, has to be largely intuitive. For past loss of earning capacity, the plaintiff should recover $1,247.00 for the two weeks and one day at $567 net per week lost immediately after the injury, together with $2,084 for four weeks at $521 per week lost in connection with the arthroscopy and $3,000 to allow the for period of several weeks immediately after cessation of work with Campbell's Contracting Services. Thereafter I propose to approach the remainder of the past period by selecting a figure which appears to me to be within the range of a hypothetical periodic loss of earning capacity, apply the conventional formulae and then look at the result to see whether or not it appears reasonably appropriate in a global sense. A periodic loss of $100 per week appears to me to be a reasonable hypothetical figure to start with. For the period from about the end of 1991 to the date of hearing (about 200 weeks) a further $20,000 would be awarded. This makes a total for past loss of earning capacity of $26,331 which, rounded down to $25,000, appears to be a reasonable award for past loss of earning capacity. I presume that the plaintiff received worker's compensation in respect of the first two weeks after injury of about $1,000 and I award interest on the balance which I assess at $13,440.

50. For future loss of earning capacity the hypothetical figure of $100 per week to age 65 at discount rate of 3 percent (multiplier 1035.8) gives a figure of about $103,500. This appears to me to be somewhat high having regard to the uncertainty of the plaintiff's future but for injury and the present likelihood that a young man like him with initiative for business and basic good health will be able to put an award of damages to good use. He could yet finish up back in the fire rating industry as an employer, using his experience but not having to carry out personally the tasks that bring on pain. I think that $80,000 would be appropriate for future loss of earning capacity. Because of the intuitive nature of the process, I would not discount this figure for vicissitudes, conventional or otherwise.

51. Out-of-pocket expenses are agreed at $4,528.23

52. For pain and suffering and loss of enjoyment of life, I award $25,000, half of which I assign to the past. Interest is awarded at $2,000.

53. In summary the total award is as follows:

Pain and suffering and loss of enjoyment of life $25,000.00
Interest on past pain and suffering $2,000.00
Out-of-pocket expenses $4,528.23
Past loss of earning capacity $25,000.00
Interest on past loss of earning capacity $13,440.00
Future loss of earning capacity $80,000.00
Total: $149,968.23

54. Viewed globally, at about $150,000, this appears to be an appropriate sum and the plaintiff is to have judgment against both defendants accordingly. Unless the parties wish to be heard I propose to order that the defendants pay the plaintiff's costs to be taxed or agreed. I understand that the defendants have reached agreement on the contribution proceedings. I order that those proceedings be dismissed with no order as to costs.