Margaret Jukes v Searle Johnston [1996] ACTSC 94 (10 September 1996)

SUPREME COURT OF THE ACT

MARGARET JUKES v. SEARLE JOHNSTON
No. SC601 of 1993
Number of pages - 12
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Negligence - horse-riding accident - girth strap broke on horse and plaintiff fell - failure of defendant to fit saddle with surcingle.

Damages - assessment - personal injury - horse-riding accident - musculo-ligamentous injury to neck, thoracic and lumbar spine - injury to right knee - chronic pain - post-traumatic stress disorder - reactive depression - loss of earning capacity - no issue of principle.

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

HEARING

CANBERRA, 27 and 28 May 1996
10:9:1996

Counsel for the plaintiff: Mr C. O'Connor QC with
Mr D.T. Kennedy

Solicitors for the plaintiff: Elrington Boardman Allport

Counsel for the defendant: Mr G.F. Little

Solicitors for the defendant: Deacons Graham and James

ORDER

THE COURT ORDERS THAT:
1. There be judgment for the plaintiff in the sum of $194,048.75.

DECISION

MILES CJ The plaintiff was injured on 12 March 1993 when the girth strap broke on the horse she was riding and she fell. The horse had been hired from the defendant. She sues the defendant for negligence. I find the negligence proved, in that the defendant failed to fit the saddle with a surcingle, which is a sort of second girth strap. A report from an expert breeder and trainer of horses, Mr. McMurtrie, of Braidwood, attests to the reasonable practices in relation to the saddling of horses at the time. I accept the report. A surcingle, if fitted, would have held the saddle in place, at least temporarily, when the girth strap broke. The breaking of the girth strap in itself may suggest negligence, but I make no finding in this regard.

2. There was an allegation in the pleadings of contributory negligence, but it was not argued. Contributory negligence is not established.

3. The plaintiff was riding the horse at full gallop at the time of her fall. It was a heavy fall. Although she did not describe it in detail in her evidence, it appears from other evidence that she rolled over several times on the rocky road, went over an embankment and lost her helmet and one boot. Her horse continued to gallop onwards. She does not appear to have lost consciousness. She had been riding with a friend, who had gone ahead and she had to wait some considerable time for the friend to return. She found difficulty in climbing on to her friend's horse. They rode together back to the defendant's stables. She was in considerable pain during this time. The defendant suggested that she go to hospital, but she preferred to go home, being in what she described as a state of shock. The plaintiff went straight to bed when she arrived home, but had difficulty sleeping because of pain and her thoughts returning to the scene of her fall.

4. The next day she went to Calvary Hospital where she was admitted for three days and given a pain-killing injection. On admission it was found that her lumbar-sacral spine was tender, but that there was no tenderness in the cervical spine. There was also found to be bruising of her right knee and left thigh, together with generalised abrasions and bruising. She suffered no head injury. An x-ray revealed an undisplaced fracture of the pelvis, namely of the right superior and inferior pubic rami. X-rays of the lumbar and cervical spine did not disclose any fractures.

5. The plaintiff was discharged from Calvary Hospital with Digesic medication and arrangements for her to be reviewed at the fracture clinic at Woden Valley Hospital in two weeks.

6. Apparently the plaintiff did not go to the Woden Valley Hospital as arranged, but she did present herself to the Queanbeyan Medical Practice of Doctors Carter, Madew and Sukumar on 29 March 1993. Complaints included pain in the right knee and right ankle and injury to the neck.

7. Dr Carter, who saw her on the first occasion, noted that she was receiving physiotherapy for her pelvis. He considered that she was unfit for work for three months but that she should eventually recover. He did not see her again.

8. Dr Madew saw the plaintiff on 5 May 1993 and gave her a retrospective certificate for unfitness for work from 12 March to 30 June 1993.

9. Dr Sukumar first saw the plaintiff on 5 April 1993 when she stated that she had been experiencing ongoing pain in the right knee and mid- thoracic spine and emotional stress and depression. Dr Sukumar became in effect the plaintiff's general practitioner.

10. In the meantime the plaintiff was referred to Dr Kevin Woods, an orthopaedic surgeon in Canberra, who first saw the plaintiff on 13 March 1993 as an orthopaedic surgeon attached to the Calvary Hospital. He later reported to Dr Carter that he saw the plaintiff on 1 June 1993 when there were "no structural problems" and that the x-rays of the pelvis showed her fracture to be healing. He recommended physiotherapy and thought he did not need to see her again unless there were continuing problems.

11. At that time the plaintiff was complaining of low backache, with tingling down the right leg, pain in the knee when using stairs and some aching in the groin. There was no swelling or instability in the right knee, and no note of complaints of pain in the neck. Examination revealed full movement of the neck. Dr Woods anticipated further physiotherapy in order to assist the symptoms in the lumbar and cervical spine to settle over time, with a full recovery from the pelvis fracture with no anticipated obstetric complications. He thought that she was fit to carry out her normal occupation of clerk, but would be unable to sit for long periods without aching in the lumbar spine, that she was unfit for heavier work and was, in particular, likely to experience difficulty in negotiating stairs.

12. The plaintiff then began attending the Queanbeyan Physiotherapy Centre for treatment and continued to do so approximately weekly until September 1993. On 1 June 1994 she was recommended physiotherapy at fortnightly intervals until 20 July 1994. She was recommended physiotherapy again after her operation on her knee in September 1994 and has not had further physiotherapy since 26 October 1994.

13. The plaintiff was referred by her solicitors to Dr McEwin, who reported for the first time on 9 July 1993. Dr McEwin observed from the Calvary Hospital notes that the plaintiff had complained there of a painful neck with reduced movement. He also noted that the plaintiff was advised that the fractures of the pelvis could compromise her ability to have a normal delivery of a child. Unfortunately the plaintiff was asked nothing about such advice either when she gave evidence-in-chief or when she was cross-examined. The view expressed in the Calvary Hospital notes is in conflict with Dr McEwin's own view based on the x-rays, and with the opinion expressed by Dr Woods that he would expect a full recovery of the fracture of the pelvis with no anticipated obstetric complications. The Calvary Hospital notes were not in evidence. As it eventuated, the plaintiff had a termination of pregnancy in September 1993. I shall return to this aspect.

14. Dr McEwin's report of 9 July 1993 is a very thorough one. In relation to the matter just mentioned, he reported that the plaintiff complained to him of pain such that she could not have sexual intercourse for several months and when intercourse resumed, it was painful.

15. Dr McEwin's diagnosis was as follows: 1. Musculo-ligamentous injury to the cervical region. 2. Musculo-ligamentous injury to the lower lumbar region, but with a suggestion of disc lesion to be further examined by means of CT scan. 3. Patello-femoral chondritis of the right knee. 4. Musculo-ligamentous injury of the thoracic spine at the T4-5 level. 5. Post-traumatic stress syndrome. 6. Fractures of the pelvis which had united well. 7. Haematoma of right and left thighs.

16. Although Dr McEwin was reporting for medico-legal purposes, he made certain recommendations as to treatment, in particular that the plaintiff be referred for arthroscopy of the right knee if she did not make reasonably good progress in the next two months and that she try to establish a therapeutic relationship with one of the several doctors at the Queanbeyan Medical Centre.

17. The plaintiff continued off work. It does not appear that at that stage she made any attempt to find work. From 1987 to 1991 the plaintiff had worked with a company known as Brambles Linen Service where her job was to fold linen and put the linen through spreaders and folding machines. From there she obtained a promotion in the company as a computer clerk. From 21 May 1991 to 30 August 1992 she worked as a computer processor on a full-time basis for Realty World Pty Ltd. Thereafter and until 2 November 1992 she worked for an organization called Land and National Development, which appears to have been associated with her former employer. She left because of difficulty with a change in management.

18. From 10 December 1992 until the date of her injury she worked on a part-time basis for Quest Solutions, as a temporary waitress/bar person.

19. On 13 August 1993 the plaintiff went with friends to Merimbula, New South Wales, for the purpose of taking part in some scuba diving. On that occasion she dived to a depth of 30 metres, which was as deep as she had ever dived previously. On her way back to Canberra she began to experience aching in her joints and the car she was travelling in was diverted to Sydney. She was admitted to the Prince of Wales Hospital and placed in a decompression chamber. She was discharged the following day with an absence of symptoms but with the advice, "no dives for six weeks, then needs medical review".

20. A curious feature of the plaintiff's history is that there is no evidence that she has ever mentioned the diving incident, or the treatment at the Prince of Wales Hospital to any of the doctors who have treated her or examined her for the purpose of the case, or to the physiotherapist. In fact, on 18 August 1993 she attended for physiotherapy.

21. Dr Sukumar continued to review the plaintiff at regular intervals. He prescribed anti-inflammatory, analgesic and anti-depressant medications. He was also apparently the doctor who advised her as to the termination of pregnancy which was carried out in September 1993. According to his report, Dr Sukumar advised the termination due to "her ongoing post- traumatic stress syndrome". There is no evidence that she had drawn Dr Sukumar's attention to the diving incident.

22. There is a question whether the plaintiff's pregnancy was planned or unplanned. If it was planned, it would have been against the advice which Dr McEwin understood to have been given to her at the time of her discharge from Calvary Hospital. However, the direct evidence that she gave about such advice was not clear. The defendant is entitled to rely on the plaintiff's failure to follow medical advice only to the extent that it might show a failure to mitigate damage. The defendant bears the onus on this issue. The evidence is unsatisfactory. The defendant has failed to discharge the onus.

23. The plaintiff's father died of cancer in September 1993. The plaintiff said in evidence that this was after the termination of the pregnancy. There is no evidence that her father's death had any immediate impact upon her condition, although it is a factor to be taken into consideration as I shall indicate.

24. On 15 October 1993 the plaintiff began working at Deakin Health Centre as a casual receptionist. However, the tasks involved prolonged standing and she found that she was in such pain at the end of the day that she could not continue. She resigned from this position on 15 December 1993.

25. Over the next several months the plaintiff made several applications for various positions of a clerical nature and otherwise within her capacity, but she was unsuccessful.

26. Exactly how it came about is not clear, but by May 1994 the plaintiff was attending a Dr Colton at Phillip. He referred her to Dr Cairns, orthopaedic surgeon, for treatment of her right knee. Dr Cairns examined the plaintiff on 12 May 1994. He concluded that the plaintiff was suffering from patello-femoral problems and made arrangements for her admission for arthroscopic surgery. This took place on 7 June 1994. It was found that there was no intra-articular injury, but noted that there was a lateral tracking in the patella which Dr Cairns believed was the source of her ongoing problem. He advised her to resume physiotherapy which she did. Examination also confirmed the presence of tight lateral retinacular bands, and multiple small fragments of debris within the joint were noted. When reviewed post-operatively on 14 June 1994 the knee was settling well.

27. Dr Cairns thought that the plaintiff continued to be disabled by ongoing problems arising from the right knee and might therefore present as a candidate for realignment of the right patella. On review on 10 August 1994 the plaintiff reported that she was no better and made arrangements for arthroscopic lateral release, an operation for that purpose was performed on 6 September 1994 at Calvary Hospital and the plaintiff was discharged two days later. Again the post-operative review on 14 September 1994 indicated the plaintiff was progressing satisfactorily. The plaintiff herself said in evidence that there was an increase in pain post-operatively for about a month. Further review on 26 October 1994 led Dr Cairns to conclude that the right knee was better than it was pre-operatively and continued to improve despite some ongoing minor problems when squatting and negotiating stairs.

28. A few weeks later on 15 November 1994 the plaintiff gained a position as a contract control officer with a company, Grinnel Asia Pacific Pty Limited, at Mitchell. The position is mostly concerned with data processing but it involves negotiating one flight of stairs eight to ten times a day. The plaintiff has to drive from her home in Queanbeyan to Mitchell, which takes about half an hour each way.

29. On further review on 1 February 1995 Dr Cairns again advised Dr Colton that the plaintiff was not displaying any significant improvement from the surgery and gave an overall unhappy and pessimistic outlook regarding progress and future of the knee. Most recently, on 26 April 1995, Dr Cairns reported that the plaintiff will require ongoing review and physical treatment, possibly needing realignment of her patella- extensor mechanism, the cost of such an exercise being in the order of $5,000-$7,000. Dr Cairns commented further on the question of lateral tracking of the patella. It is a congenital condition not uncommon in young females. Dr Cairns expressed the view that given that the plaintiff demonstrated a similar tendency for lateral tracking in her left patella in a knee which remains asymptomatic, it was unlikely that the plaintiff would have required diagnostic arthroscopy in her right knee but for the injury of 12 March 1993.

30. In early 1995 the plaintiff enrolled in a diploma course in animal science at the Bruce TAFE. She attends about three nights a week for two to three hours per night. She hopes at the conclusion of the four year diploma course to convert then to a degree course at the University of Canberra and ultimately to get work within her physical capacity.

31. The plaintiff was seen by Dr L.G. Newcombe, neurosurgeon, on 3 August 1995 and reviewed some weeks later. Dr Newcombe stated in a report that the CT scan of the lumbar spine of 5 October 1993 showed intervertebral disc bulging at the L4-5 level. This observation was not made by the other doctors who have examined that CT scan. Dr Newcombe's opinion that the plaintiff suffers from disc herniation with the possibility of a lumbar discetomy becoming indicated. I am not satisfied that it has been established that the plaintiff has suffered disc herniation and no allowance will be made for the cost of possible operation for removal of any offending disc.

32. The plaintiff's complaints remain much as they have been for the last two years as far as physical symptoms are concerned. She continues to have pain in the neck, the thoracic and lumbar spine and the right knee. As the pain in the neck, thoracic spine and lumbar spine have not been shown to be other than muscular ligamentous, I do not think that the condition will deteriorate over time. However, it is possible that the condition will, in subjective terms, cause increased symptoms depending on the activities that she carries out. For instance, if she is required to spend longer time at her desk, particularly at the computer, this is likely to lead to increased pain either in the neck or the lumbar spine or both.

33. As far as the right knee is concerned, I think that it is established on the probabilities that whatever the mechanical cause, the symptoms are due to the disruption of the knee caused in the fall. The causal relationship between the condition and the injury having been established, the plaintiff is entitled to be compensated for the possibility of an operation on the knee at some time in the future.

34. The plaintiff was a very active person before her injury and she is clearly no longer able to carry out most of the sporting and social activities in which she engaged, for instance scuba diving, squash, aerobics and horse-riding. She tried horse-riding once, and was in great pain for several days thereafter. She should not be expected to try it again.

35. At the age of 17 the plaintiff came to Queanbeyan with her mother. Although she qualified for a course in marine biology at James Cook University in Townsville, she was not able to take that up because of what she described as financial difficulties. Presumably it is because she gained employment towards the end of 1994 and a commensurate income that she found she was able to afford to enrol in the TAFE course in early 1995. Furthermore she has had a de facto relationship with a young man for some three years now, although they do not live together all the time at present. The separation, however, is not complete. Her de facto husband returns from time to time and in particular on the evidence, which I accept, he carries out most of the household work that the plaintiff used to carry out. Although the young man was not called to give evidence, Ms. Tilley, a friend and former housemate of the plaintiff, did give evidence on this matter which is completely acceptable. The plaintiff herself conceded that from time to time she hangs out the washing, and although there was an attempt on the part of the defendant to adduce evidence by way of a video film which it was anticipated would show the plaintiff active in this regard, that attempt was a distinct failure.

36. There was also an attempt by means of a video film to show that the plaintiff maintained some sort of active interest in horses, but the less said about that the better for the defendant.

37. A major part of the plaintiff's claim is in relation to her psychological condition. She has been referred to Dr Veness, psychiatrist, for the purpose of the case. Dr Veness initially reported that she was suffering from chronic pain syndrome, which caused Dr McEwin to withdraw his diagnosis of post-traumatic stress disorder. However, in his latest report of 19 March 1996 Dr Veness reinstates the diagnosis of post-traumatic stress disorder, and I accept it. Dr Veness does not appear any longer to adhere to the diagnosis of chronic pain syndrome. He says that the plaintiff suffers three psychiatric disorders, the main one being post-traumatic stress disorder and the others being avoidance and high levels of anxiety, high enough for the latter to be described as an anxiety state. He added "likewise, she has enough depressive symptoms to be described as suffering from a significant Reactive Depression". Dr Veness takes a very pessimistic view of the plaintiff's situation, in that not only is the plaintiff beset with these psychiatric disorders and suffers from chronic pain, but her relationships with others have been seriously affected. According to Dr Veness, and it is consistent with the other evidence, the plaintiff has made no headway in terms of restoration of confidence in her social relationships. Her emotional state is precarious, the only close people to her in life being her de facto husband and an aunt. The plaintiff has an aversion, based apparently on philosophical grounds, to taking drugs of any kind, including anti-depressant drugs. She also has personal difficulties in discussing her problems with other persons, even with Dr Veness. I do not think that she can be regarded as failing to mitigate her loss in this respect, but it is quite apparent that until there is some sort of psychological breakthrough on her part there is little room for improvement. Dr Veness thinks that the anxiety symptoms and the level of depression will become so severe that she will be forced to seek more treatment and that she ought to be seeing a psychiatrist or clinical psychologist once a fortnight for an hour over the next two to three years.

38. On the more positive side, however, the plaintiff instead of sitting at home and living on social security payments, keeps herself at work despite accompanying pain especially in her right knee and she is successfully attending a diploma course. She is understandably angry and bitter that she is unable to follow her previous active pursuits and she is fearful about the future in that there appears to be a lack of medical answers to her problems. It is possible that with the end of litigation, and the award of a sum of damages which will contribute to her financial security, she may be less fearful about the future. Her continuing success in her diploma course and, hopefully, a later degree would be expected to lead to some increase in confidence about the future. If there is further surgery to the knee, it is likely that it will not be carried out unless there is some positive hope that it will be of benefit. There would also be, I think, the possibility of alternative therapies which the plaintiff has not so far considered.

39. The picture which Mr. Little, for the defendant, presented on behalf of the defendant is, of course, quite different. It was submitted that the plaintiff whilst suffering from the physical symptoms that she describes is not as physically disabled as is put on her behalf, that she carries on in employment much as she might have expected without injury, albeit with pain. The diving episode presents inconsistently with the picture that the plaintiff painted of herself. The termination of pregnancy was carried out very soon after the diving episode when the plaintiff's morale might have been expected to be low. The termination was carried out for psychological reasons and the plaintiff's vulnerability in that regard was aggravated by the death of her father soon after. The plaintiff is now in full-time employment in contrast to the part-time job as a waitress/bar person at the time of her injury. It is likely that she will finish up in a field in which she would have sought to be successful in any event.

40. The case is made difficult by the problem of trying to predict what course the plaintiff's life might have taken had she not been injured at a comparatively early age.

41. I turn to the various heads of damage.

42. Past out-of-pocket expenses
The plaintiff claims a total of $4,798.40. It is not disputed that the individual amounts claimed are unreasonable. What is disputed, as I understand it, is whether the treatment or the medication as the case may be was incurred as a result of the plaintiff's injury. In several instances, it appears to be clear that the treatment was as a result of the injury, for instance in relation to the visits to Dr Sukumar. Nothing was established during cross-examination of the plaintiff to the effect that she was visiting Dr Sukumar for anything but symptoms and disabilities of which she complains. Similarly, the fees paid to Dr Cairns and in relation to the Calvary Hospital. There is a real question whether the physiotherapy resulted in any improvement of the plaintiff's condition, but the question is whether it was reasonably incurred and prima facie it was incurred as a result of reference by medical practitioners. The amounts sought in respect of pharmaceutical expenses are modest and as the plaintiff was able to overcome her aversion to medication to some extent, particularly in the early stages after the injury, I think that these are reasonably claimed. There are small amounts for doctors who are not otherwise heard of in the case, such as Dr Melhuish, Dr Hutton and Dr Hazelton, but the charges are for quite modest amounts and on balance I think that they should be allowed. Common experience indicates that a stay in hospital is often followed by the receipt of bills from doctors whose names are unknown to the patient.

43. Future out-of-pocket expenses
In relation to future out-of-pocket expenses, the claim has been made on the plaintiff's behalf by means of a schedule which sets out various formulae that might be applied in this respect. However, the plaintiff's own evidence about her aversion to pharmaceutical drugs prevents a precise arithmetical approach to this head of damages. The arithmetical approach is put forward for a claim of $728. I think that all that the plaintiff can really establish is that there is a chance that she might resume medication in the future and I would allow $500 under this head.

44. As to future medical expenses, there is no doubt that she should and is likely to continue to attend a general practitioner and the claim is made at a cost of $40 per consultation once a month for the next four years. The claim is put higher than the schedule fee charged by general practitioners in the Canberra region, and I would allow $1,500 under this head. With regard to the cost of operative realignment of the plaintiff's right knee, there is a chance, but by no means a high likelihood, that she will incur this expense. I think it adequate to allow her one half of the anticipated cost, and I award $3,000 under this head. With respect to continuing treatment for her psychological and emotional problems, a claim is made at its highest of $200 per consultation once a fortnight for 3 years, which on the 3 percent discount tables, gives a figure of just under $15,000. An alternative and more conservative approach is that she should see a psychiatrist, and is likely to do so, at the same cost, three times a year for four years, which, on a simple arithmetical basis, amounts to $2,400. I would allow $10,000 under this head.

45. The claim for future physiotherapy treatment is for five periods of physiotherapy per year each lasting about four weeks with attendances during each period of three times a week, the cost of each attendance being $35. On a simple arithmetical basis, the claim amounts to $8,400. The plaintiff's evidence was that physiotherapy in the past has been of little benefit, and it is significant that she declined to continue physiotherapy because, in effect, it did not represent value for money. Of course if it was reasonable for her to incur physiotherapy expenses, it matters not whether she could afford to pay them or not. On the whole, I am not persuaded on the balance of probabilities that the incurring of physiotherapy expenses at the present time is reasonable. However, it may be that in the future, particularly if arthritis is established in the knee, that physiotherapy treatment would become reasonably necessary and expenses therefore would be reasonably incurred. I think the plaintiff should be awarded a modest sum in this respect, which I fix at $2,000.

46. Arthroscopy and further consultations with an orthopaedic surgeon is also the subject of a claim which, as I understand it, is separate from that of a future operation for realignment of the knee. The expenses claimed in respect of further consultation with the orthopaedic surgeon are $2,342. There is a substantial possibility that such consultations will be necessary and I allow $2,000 in this respect. The total then for future out-of-pocket expenses is $19,000.

47. Past loss of earning capacity
On agreed figures it is shown that during the period of the first month following her injury, if she had remained working with Quest Solutions, she would have earned $627.32 per month. Her past loss begins with this sum. Thereafter upon figures based on her net average weekly income from Realty World, with consumer price index increases, the figures show that had the plaintiff been engaged throughout the period working full-time, she was likely to earn until 15 November 1994 a total of approximately $30,000. Her actual earnings during that period, which were during the few weeks she was at the Deakin Health Spa, amounted to just over $2,000 and a total net loss is claimed of approximately $27,300.

48. This is a convenient starting point for past loss of earning capacity. However, as Mr. Little submitted, it was by no means assured that from a date about a month after her injury the plaintiff would have gone back to full-time employment at a rate equal to what she was earning at Realty World Pty Limited. It is a matter of notoriety that the job market, particularly for young people trying to establish themselves, is not one of full employment. Furthermore, small businesses do not always succeed and employees have to be laid off. The plaintiff had not yet established herself in full-time employment with a viable employer at the time of her injury. Nevertheless, the evidence shows that she has become a valued employee, even with her injury, and I think it is likely that sooner or later during the period since her injury she would have found full-time employment at a rate which approximated that which she received when she was with Realty World Pty Limited and, provided the employer continued to prosper, she would have remained in that employment. For past loss of earning capacity I would award her the sum of $23,000.

49. The plaintiff is entitled to interest on the award for past loss of earning capacity which, assessed at 7 percent, amounts to $5,635.

50. Future loss of earning capacity
For the future, Mr. O'Connor QC, for the plaintiff, has realistically accepted that the plaintiff is not able to make any claim in the nature of a continuing periodic loss. He submitted that she should, nevertheless, be awarded a sum which would act as a buffer against the contingency that in the future she may from time to time not be able to earn at her present rate or at a rate equivalent to her pre-injury full- time rate. This is a perfectly acceptable approach, but it is one of difficulty since the Court has to act intuitively and not on arithmetical calculations. The plaintiff clearly has a physical capacity which will continue for some time in the future. As to her back and neck symptoms, it has not been shown that they are other than muscular ligamentous in nature, and it is likely that they will resolve some time over the next few years. The condition in her knee, however, makes it likely that she will continue to be unfit for work involving prolonged standing, using stairs and so forth and that unless there is some extraordinary degree of success with future operative intervention, that disability will continue for the rest of her life. It may well be that even if she is successful, as I expect she will be in her studies, there will be activities in the areas of animal health that will be closed to her. It is also not to be forgotten that not everybody who makes a living does so by being employed by someone else. Some people with capital behind them go into business and make a success of it. The plaintiff already has skills in the business world and it could be that in due course she could use them to establish some sort of business connected with animal health where she could rely on other people to do whatever necessary physical work that is beyond her. All this of course is very conjectural, and much depends upon the way in which she handles her psychological problems in the future. Mr. O'Connor submitted that a figure of $50,000 would be appropriate for loss of earning capacity in the future and I do not think that that is unreasonable.

51. General damages
As to pain and suffering and loss of enjoyment of life, I think that the plaintiff is entitled to substantial damages as far as the past is concerned, but the future must be approached bearing in mind the wide range of possibilities and not forgetting that the plaintiff bears the onus. In line with recent decisions of this Court and of the Full Court of the Federal Court, I would award her the sum of $65,000 under this head. I apportion $30,000 to the past.

52. The plaintiff is entitled to interest on the past component of pain and suffering and loss of enjoyment of life, and I award $2,100 in this respect.

53. Griffiths v. Kerkemeyer
A claim is made under the principle in Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 at a rate of three hours per week at $17 per hour. This is a reasonable claim and as far as the past is concerned the sum of $8,509.35 is awarded. For the future the claim is again modest and restricted to a period of three years. I would award $16,000 as far as the future is concerned.

54. The award of damages therefore is as follows: Past out-of-pocket expenses $4,804.40 Future out-of-pocket expenses $19,000.00 Past loss of earning capacity $23,000.00 Interest on past loss of earning capacity $5,635.00 Future loss of earning capacity $50,000.00 Pain and suffering and loss of enjoyment of life $65,000.00 Interest on past component of pain and suffering and loss of enjoyment of life $2,100.00 Griffiths v. Kerkemeyer (past) $8,509.35 Griffiths v. Kerkemeyer (future) $16,000.00 Total: $194,048.75

55. As a global figure this appears to me to be a reasonable sum to award the plaintiff and I direct that she be at liberty to enter judgment for $194,048.75. As far as costs are concerned, unless the parties wish to be heard, I order that the defendant pay the plaintiff's costs.