Robert Josephus Vanderhoeven v Cheryl Shelley [1997] ACTSC 84 (24 October 1997)

SUPREME COURT OF THE ACT

ROBERT JOSEPHUS VANDERHOEVEN v CHERYL SHELLEY
No. SC 582 of 1995
Number of pages -
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MASTER CONNOLLY

CATCHWORDS

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Rear end collision - Musculo ligamentus injury to cervical spine - Whether pre-existing degenerative condition existed - Whether economic loss due to injury or market fluctuations - No Issue of Principle.

HEARING

CANBERRA, 15, 16 & 17 September 1997 (hearing), 24 October 1997 (decision)

24:10:1997

Appearances

Counsel for the Plaintiff: Mr D Wheelahan QC (Day one only)

and Mr D Campbell

Instructing Solicitors: Scott Sheils & Glover

Counsel for the Defendant: Mr C Barry QC

Instructing Solicitors: Mallesons Stephen & Jaques

ORDER

Order:

1. Judgment be entered for the plaintiff in the sum of $125,084.20.

2. The defendant pay the plaintiff's costs.

DECISION

MASTER CONNOLLY

This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on 16 February 1993 in Deakin in the Australian Capital Territory. The plaintiff was driving south along Adelaide Avenue and down the ramp towards the intersection with Hopetoun Circuit. This intersection is controlled by a stop sign. The plaintiff stopped at the sign, and proceeded into the intersection. As he was moving off, he observed a vehicle approaching, and stopped. The defendant, who was behind the plaintiff at the stop sign, proceeded off behind him and collided with the rear of his vehicle.

Liability and contributory negligence were in issue on the pleadings. The defendant was called to give evidence concerning the circumstances of the collision. This evidence was directed to the question of the force and speed of the collision, rather than primary liability or contributory negligence, and no submissions were made on the question of liability by counsel for the defendant. I am satisfied that the defendant proceeded without properly observing the plaintiff's vehicle in circumstances which give rise to liability, and I so find.

The collision was, by common consent, of a relatively minor nature. Very little damage was done to the vehicles involved, and no claims on insurance were made. The plaintiff's vehicle suffered a bump to the rear bumper bar. The defendant's son, who called on the plaintiff after the accident to look at the damage and assist in its repair, said this was about the size of a golf ball. The defendant's vehicle probably suffered a crack in an indicator light assembly, but the defendant was not sure whether this damage had been occurred prior to the incident.

The plaintiff accepts that little damage was incurred by the vehicles, but says that it was nevertheless an impact which caused him to move violently forward and back, in the well known "whiplash" mechanism. He says that at the time of the impact he had his head rotated to the right, observing the oncoming vehicle. The plaintiff's pregnant wife was in the car with him, as was their then 4 year old child. The plaintiff's wife says she was distressed by the impact, and fell to the ground after she alighted from the car. The defendant did not observe this. After the impact the plaintiff and the defendant discussed the matter, and the plaintiff's wife comforted her child. The parties then went their separate ways after exchanging details, the plaintiff dropping his wife and child off at a swimming centre while he attended at a job interview.

The plaintiff says that he was sore in the neck and back and began to suffer headaches on the day of the accident, but that he thought that this would go away. His complaints continued for some days, and he went, at his wife's urging, to his local general practitioner. Dr Cross reported in October 1993 that

"Mr Vanderhoeven was seen here on 20.2.93. He had been the driver of a car on 16.2.93 which was stationary when struck from behind. From the night of the motor vehicle accident he experienced neck pains and frontal headache. From just before his consultation he was also experiencing lumbar pain. Examination indicated

1. Cervical spine - his range of movement in all directions limited by stiffness. The upper thoracic and the high cervical spine was tender.

2. Lumbar spine - movements of extension and L lateral flexion compromised by stiffness. The lower lumbar spine was tender. Straight leg raising limited by stiffness."

Dr Cross' clinical notes record

"...very recent past history of low backpain."

Dr Cross referred the plaintiff for physiotherapy. He attended the practice of Ms Keddie, and was seen by Ms Atkinson on 23 February and for a course of seven treatments which extended to April 1993. She recorded complaints of headache and neck and back pain. Her notes record, in relation to past history,

"1 wk B4 this accident saw chiropractor for this area."

The plaintiff in his evidence in chief referred to one visit to a chiropractor for a sore back. He was unsure of when this had occurred. As he had advised the physiotherapist of this, I am satisfied that he has not sought to conceal this history. I must, however, express concern at the way this matter was handled in the pre trial stages of this proceeding. The defendant's solicitors wrote to the plaintiff's solicitors on 9 December 1996 requesting

"...full particulars of chiropractic or other medical treatments to his neck or back received in the period of five years prior to the accident of 16 February 1996." In a response of 4 March 1997 the plaintiff's solicitors replied

"Although your request for information does not relate to particulars, we are instructed to advise that our client has never received chiropractic or medical treatment to his neck prior to his motor vehicle accident the subject of these medical proceedings."

Mr Sheils was called to give evidence surrounding this matter. He said that he was aware that the plaintiff had received one occasion of chiropractic treatment, and that this was referred to in medical reports forming part of the plaintiff's case. He acknowledged that his letter was in error, and said that he misunderstood the nature of the request at the time he responded, and thought that information was sought in relation to the neck only. It is, to say the least, unfortunate that the impression could have been created by this letter that there was no history of prior back pain.

The plaintiff's ongoing complaints have mainly centred around his neck pain and headaches, and to this extent the question of a prior incident of back pain does not assume the importance that it can in cases where what is alleged is the exacerbation of a previously unsymptomatic degenerative back condition. The plaintiff's wife gave evidence that he has had a sore back after heavy work on the property. The defendant's son claimed that the plaintiff claimed a past history of back pain in a conversation shortly after the accident. I am satisfied that nothing turns on this, as low back pain is not a significant part of this case.

The plaintiff's major claimed disability is an ongoing musculo-ligamentous injury of his cervical spine, productive of ongoing neck discomfort and headaches. This diagnosis is generally accepted by the medical reports tendered on both sides, although experts examining him for the defendant have been of the view that this complaint ought to have resolved. Dr Roebuck, an orthopaedic surgeon, was cross examined on his report to the plaintiff's solicitors of August 1995 and September 1997. He agreed that the degree of ongoing complaints made by the plaintiff were unusual given the apparent force of the impact, but stated that, where a person has their neck rotated at the time of a whiplash incident, this will amplify the difficulties they may face. This proposition was endorsed by Dr Henke, who reported for the defendant in June 1996 and was also required for cross examination.

Dr Roebuck said in his report of August 1995 that

"Mr Van Der Hoeven has a musculo-ligamentous injury of his cervical spine as a result of the motor vehicle accident of November 1993 [sic] which being still present must give him some residual permanent disability with interference to but not prevention of him returning to his pre injury occupation."

He then assessed him at a 10% impairment of his neck. In his later report, Dr Roebuck said that

"The pain in his neck and interscapular area still interferes with his life and his work", and found on examination that

"He now has some restriction of spinal movements in all directions indicating some increase in his cervical spine irritation. Neurological examination is still normal."

His conclusion was that the plaintiff

"...still has significant problems from the musculo ligamentous injury of his cervical spine which occurred as a result of the motor vehicle accident...He still has a significant permanent residual disability from this, because of the specific interference with his capacity at work I would now assess him as having a 15% impairment of his neck...There is still no treatment that would help him or that is indicated and his condition is permanent and static and his total disability is a direct result of injury without any underlying contributing factor adding to his disability."

Dr Roebuck was cross examined as to the true extent of the plaintiff's complaints. It was put to him that in these types of injury, with no objective neurological or radiological material, a doctor is dependant on the claimed symptoms. While agreeing that there is no objective neurology or radiology, Dr Roebuck described in some detail the process of physical examination looking for tenderness over the trigger point of the trapezius muscles . He said that, in his examinations, he probes over a wide area, and that in his experience he would not expect a patient to be able to know the precise location of the trigger point so as to be able to feign symptoms at that precise point, but not at others. He was satisfied as to the complaints. On the whole of the medical evidence I am satisfied that the plaintiff has suffered an injury as a result of the accident of the type described by Dr Roebuck.

The principles to be applied in determining compensation in personal injuries cases have recently been summarised by McHugh J in Nominal Defendant v Gardikiotis (1996) 1 CLR 49 where his Honour said (at 54):

"When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, 'in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation'."

In relation to general damages, the plaintiff presents as a young man who before the accident was fit and active. He gave evidence that he regularly jogged at lunchtimes with work colleagues around Lake Gininnderra, and enjoyed playing volleyball. The plaintiff was born in 1958, and grew up in the country, completing his education to year 12 standard at Wagga. He undertook a tertiary course at what is now Charles Sturt University but found that he did not enjoy this, and he left his studies to take up employment with a garment and yarn manufacturer, working as an analyst and programmer in their computing department. This was in the late 1970's, as computers began to be used widely in industry and commerce. The plaintiff began working in the COBAL language, and he has worked in computers ever since, for a number of companies until 1985 when he moved with his wife to Canberra and commenced employment with Commonwealth agencies, also in the computing field. He has no formal tertiary qualifications in computing.

The plaintiff and others gave evidence that in the mid 1980's the demand for computer expertise was strong in Canberra, and many government agencies were engaging consultants to meet this demand. Many of these consultants had been employees of the Commonwealth. In 1986 the plaintiff formed a company, with his wife, left his employment with the Commonwealth, and commenced operating as a computer consultant. He was in constant work until the date of the accident.

The plaintiff and his wife built a home on a 5 acre block near Wamboin, New South Wales, some 30 minutes from Canberra. They obtained an owner builder licence, and contracted for the major building trades, but the plaintiff did a lot of the work himself, particularly tiling, involving both the laying of a considerable amount of slate and floor and wall tiles. He said that while this home was being constructed he would work his normal hours as a computer consultant in the Tax Office, and then go to the site with his wife and put in work of an evening.

He now complains of constant and ongoing neck pain, and headaches. These get particularly bad when he has to concentrate for long periods at work. He also says that he has to always be careful in his physical activities - he no longer engages in his former sporting pursuits, and he must be careful in engaging in activities with his children. Both the plaintiff and his wife gave evidence that this need for caution in playing with his children is distressing. He needs to take regular medication, and undertake a regime of exercises for his neck. He regularly uses hot packs to relieve his symptoms.

I take all of this into account in assessing general damages, as well all of the medical evidence. I accept that he has ongoing pain from a musculo ligamentous injury to the neck, which is also productive of headaches, but that there is no neurological involvement of physical damage to the spine. The plaintiff's condition is likely to be permanent, and continue to generate these symptoms. In relation to general damages, I award the sum of $27,000, which is towards the upper range for soft tissue injuries alone. Given that the condition will be permanent, I assess $15,000 for past loss, generating interest in the sum of $1,389, a total award for general damages of $28,389.

The plaintiff's claim for damages for economic loss is based on a claim that, as a result of these injuries, he has suffered a considerable drop in earnings, and that this will be a permanent and ongoing loss. There is no doubt that the plaintiff's income has dropped in recent years, although in the last 12 months or so he has found continual employment, as a contractor, for about 40 hours a week at the rate of around $50 per hour, that is, gross billings for his company of some $2,000 per week. This represents the same rate that he was billing for his services for the period up to August 1992, when he left what had been a long term series of contracts with the Australian Taxation Office. From then to the date of the accident he undertook contracts with other government agencies, at a bill out rate of around $36, raising to $40 for some contracts undertaken after the accident. The plaintiff's company billing records were tendered in evidence.

The plaintiff was, and remains, a highly skilled professional in the information technology field, and his earnings reflect this. The real issue at the hearing was the cause of the plaintiff's undoubted drop in earnings in the years following the accident, up until the time that he again secured regular employment for about 40 hours a week at around $50 per hour bill out rate in around December 1995, first with the St George Bank in Sydney, and more recently with the Brisbane City Council in Queensland.

The plaintiff says that his drop in earnings during this period was solely attributable to his accident related disability, and produced an accountant's report prepared by Fearsons, a Canberra Chartered Accountancy firm. This report compared the earnings of the plaintiff's company after the accident to the average earnings from the period from 1 July 1989 to the date of the accident, adjusted by the consumer price index. This resulted in a loss of past earnings of $116,287 to date of trial. An accountant's report prepared for the defendant by Ferrier Hodgson, Chartered Accountants, produced a different result, of $60,963 for the difference between the plaintiff's pre accident and post accident earnings. This difference is based on a different basis for attribution of the plaintiff's share in the earnings of the company, but Ferrier Hodgson also point out that they can not assume that the plaintiff's average earnings in the period from 1989 to the date of the accident can be simply adjusted for changes in the consumer price index. This report notes that his income varied in those years, from $134,095 in 1989 to $99,372 in 1992.

The defendant called two witnesses who had been placement agents for the plaintiff in Canberra in the period from before the accident to the time that he left the ACT in 1995. They gave evidence that, as the demand for computing services to government agencies grew in the mid 1980's, a strong market developed in Canberra for consultants. Individual consultants, usually operating though a company, would deal with a computer personnel company. This company would bid for government work, and then, in effect, sub contract to particular consultants on its books. Ms Burns, who worked at the time for Computer People, was the account manager looking after the Tax Office in 1992. She said that at this time a number of major projects at the Tax Office were coming to an end, and contracts were not being renewed. Some persons who had worked for some years as contractors chose to apply for permanent public service positions in the Tax Office as computer experts. Others had to find new contracts. In the plaintiff's case, his contract with the Tax Office, which had been continually renewed since 1986, came to an end in August 1992. At that time, he was billing at the rate of $50 an hour, and working regular 40 hour weeks.

Mr Kingham, who gave evidence in support of the plaintiff, had worked with him in the Tax Office. At around this time he was successful in finding a contract at the Department of Defence, which provided further long term work. He said that he could see what was coming at the Tax Office, and moved to this contract because it offered security. The plaintiff, when his Tax contract came to an end, had to look for other work, and found it, but his contracts with the Australian Property Group were for shorter terms, and for lower rates. A compilation of the plaintiff's company billings shows that the invoice rates dropped to around $36 per hour for these jobs, raising to $40 by mid 1993. The plaintiff secured a contract in 1993 to supply services, through the Australian International Development Aid Bureau, in New Guinea, and I note that there are billings at the rate of around $75 an hour, which may reflect this job.

The evidence of Ms Burns was that through 1993 the market got progressively tougher for computer contractors in Canberra, and the demand for the type of services changed. That the market contracted was conceded by Mr Kingham, but he was of the view that the plaintiff was one of the better contractors, and that the plaintiff, like Mr Kingham, could have found work.

The plaintiff says that he was restricted by his pain and headaches in the work he could perform. He says that he had particular difficulties in his New Guinea contract. He called Mr Cattell, who was his supervisor at the St George Bank in Sydney since December 1995. He said that he was very satisfied with the plaintiff's work, right up to the time that the needs of the Bank changed and the plaintiff concluded his contract. He said however that the plaintiff was often in apparent pain, and that he noticeably took pain killing medications and had to be flexible with his hours. He said that on occasions he would send the plaintiff home. Despite these difficulties, he was satisfied with his work, and he regularly put in the 40 hours required, although this would involve some working at home and over weekends to make up for time taken off.

Both Ms Burns and Ms Plowman were unaware of the plaintiff having any difficulties in his work . They said that it became increasingly difficult to find contacts for many in the computing industry in Canberra through 1993, 1994 and into 1995. Consultants took what work they could get, and at what rates they could get, which tended to be lower than before. Many left the industry. This picture could explain the plaintiff's earnings during this period.

Both Ms Burns and Ms Plowman said that, as part of their role, they would regularly check on the performance of the consultants they had placed in government agencies. They stressed the importance of ensuring that clients were satisfied, and also of ensuring that they did not continue to try to place consultants who were unsatisfactory, as this would adversely affect their own business. Neither were aware of any difficulty the plaintiff faced during this time due to neck pain or headaches. If the plaintiff was at this time so restricted that, on his evidence, he could only work for some 15 hours, I find it hard to see how this could not have been apparent to those who were engaging his services in a very tight and competitive market.

The plaintiff's counsel said that I ought to regard these witnesses as of only minor importance, and placed great emphasis on the evidence of Mr Kingham. He had worked with the plaintiff at the Tax Office, and then moved to Defence. He and the plaintiff, in 1994 and 1995, did some work together to develop a package to meet the needs of physiotherapy businesses. This was a speculative venture. Mr Kingham provided some capital and his own expertise, and the plaintiff provided his programming expertise. The venture did not come to anything. Mr Kingham said that he noted that the plaintiff was in pain and having difficulties, and he said that in his opinion the plaintiff was not working at his pervious levels of skill, and he asked the plaintiff to end their involvement. This is the time at which the plaintiff says that he could only work some 15 hours.

A difficulty with this claim is that when the plaintiff was able to obtain work for 40 hours at a rate of around $50 an hour, with the bank in Sydney, he was able to undertake this work, to his employer's obvious satisfaction, albeit with some difficulties. He continues to work at this rate of remuneration and for about these hours, and has done so now since December 1995. This would indicate that, while he is restricted, he is not prevented from undertaking his profession. This is consistent with the view of Dr Roebuck, on whom the plaintiff relies, who said in his August 1995 report that the plaintiff's condition

"...must give him some residual permanent disability with interference to but not prevention of him returning to his pre injury occupation."

This is what he did some months later, when the opportunity to do so arose.

Dr Evans saw the plaintiff for his solicitors in November 1995. He said that the plaintiff was then on unemployment benefits, and working 15 hours per week for a friend, which I take to be a reference to the venture with Mr Kingham. Dr Evans concluded that the plaintiff

"...is not fit for work that requires high degrees of confidence and concentration."

A month later the plaintiff obtained a position at the St George Bank, and he has been in work since, working at a high level of professional skill, although with flexibility as to hours. I note that in the history taken by Dr Evans, and also by Dr Tym, a psychiatrist, who saw him in November 1995, the plaintiff is recorded as saying that his major problem was his lack of confidence. He attributed this to his pain. He told Dr Evans that he ceased his business in November 1994, and that since then he

"...has applied for several jobs but has failed to obtain them, and feels that this is because of his obvious lack of confidence."

Dr Tym also found a lack of confidence and a resulting depression at his inability to work. He said that the main disabling sequelae of the accident was this mental condition. Again, the following month the plaintiff obtained a new professional position, at a high level.

The defendant tendered letters from Ms Plowman to the plaintiff in March 1994 and April 1995 which demonstrated that he was bidding for government contract work of, respectively, three and four months duration. The 1995 letters are inconsistent with an assertion that at that time he was, by reason of his accident related disabilities, restricted to working for a maximum of 15 hours.

I am not satisfied, to the relevant standard, that the plaintiff's accident related disabilities were the reason for the diminution of his earnings during the period following the motor vehicle accident. The evidence of the general decline in availability of contracts during this period, the expert medical opinion referred to, and the fact that the plaintiff has, when the opportunity has presented itself, been able to resume full time work, albeit with some flexibility in hours, in a complex professional field, are all factors which I have taken into consideration in reaching this conclusion.

It follows from this that it would be inappropriate for me to adopt the arithmetic approach to assessing past income loss urged upon me by counsel for the plaintiff. This is not to say, however, that the plaintiff has not suffered loss. I am satisfied from his evidence and that of his wife, and especially that of Mr Cattell, his supervisor at the St George Bank in the period from December 1995 to July 1997, that the plaintiff does continue to suffer genuine difficulty in working, although he can perform his professional duties to a satisfactory and indeed high standard. I accept that this does require him to take regular breaks, and that his concentration will wander in long meetings. I accept that he may need to take time off work, which he regularly did while working for the bank, which he may, as he did throughout that contract, make up by working irregular hours, so that he is able to maintain a full working week of effort.

Although I am not satisfied that all of the plaintiff's difficulties in the period following the accident are attributable to the accident caused disabilities, I find, for the reasons referred to above, that the plaintiff did continue to suffer disabilities which would have placed him at a disadvantage in seeking employment. It is therefore appropriate that there be an award, by way of a discretionary buffer, in respect of past economic loss. The plaintiff possesses technical skills of a high order, which command a high rate of return in the market for computer consultancy services, which is reflected in his present charge out rate of $50 per hour. As a discretionary sum to reflect past economic loss I award the sum of $30,000, inclusive of interest.

In respect of future economic loss, the plaintiff makes a claim, based on the accountant's report, for an ongoing loss, based on the difference between the average pre accident earnings and the average earnings since. I am not satisfied that this is made out. The plaintiff's pre accident earnings did decline before the accident when he lost his long term ongoing work with the Tax Office. I note from the plaintiff's exhibit of his charge out rates that in the period of six months before the accident most of his work was charged out at the rate of $36 per hour. He is now and has for some time been charging out at $50, and for regular 40 hour weeks. While the average of pre and post accident earnings generates a substantial difference, I am not satisfied that this reflects a real ongoing loss, as I have found that I cannot attribute his reduced earnings in the past 4 years entirely to the motor vehicle accident.

I am, however, satisfied that the plaintiff's condition, which on the medical evidence is likely now to be long term and stable at this level, does cause him the difficulties at work which he and others have described. While he does have the advantage of working on his own account as a computer consultant, and while he can, with a flexible client such as the bank, work for long periods at an average of 40 hours a week, he does need this flexibility. This places him at a real disadvantage in an open market situation. This much seems to have been conceded by the defendant whose counsel submitted that, if I was to find, against his primary submissions, that there is an accident related condition which generates ongoing symptoms as described by the plaintiff, an economic cushion to represent that loss would be an appropriate award, which counsel for the defendant suggested should be in the range of $20,000 to $40,000. I am satisfied that although the plaintiff is presently, and has been for some time now, working constantly at a considerably higher charge out rate than he was able to secure in the six months prior to the accident, he is at a real disadvantage in the long term, and that a quite substantial buffer ought be awarded to fairly reflect the fact that the plaintiff, who is still a relatively young man operating in a highly competitive and highly remunerative professional field, suffers from ongoing difficulty in carrying on his profession. In all of the circumstances I award a buffer for future economic loss in the sum of $50,000.

A Griffiths v Kerkemeyer claim was particularised for ongoing domestic assistance, but this was largely abandoned at the hearing, save in respect of assistance with lawnmowing. The plaintiff and his wife presently rent a home in Brisbane which, on his evidence, is on a sloping block, and he is unable to mow the lawn. He claims $10 per week indefinitely for this assistance. I am satisfied that there is presently a need for this assistance, but I am not persuaded that this ought be awarded forever.

It was clear from the evidence that the need for assistance arises because of the steepness of the lawn at the premises presently rented. The plaintiff is unable to mow this lawn, and his wife, who otherwise might assist, suffers health problems of her own.

This need has only arisen since the plaintiff and his wife moved to the present rental premises in Brisbane. It seems inappropriate, therefore, to simply multiply this figure out by actuarial tables. The evidence does not, in my opinion, justify an ongoing claim of this magnitude. It is necessarily a question of the exercise of discretion. A sum of $2,500 would cover mowing of the lawn for about 5 years. I award this sum.

There was a considerable delay following the hearing of this matter in providing details of out of pocket expenses. Leave was given to the parties to produce these figures after the hearing, and they were delivered to my chambers by 7 October. Out of pocket expenses have been claimed by way of $1,945 for medical treatment (of which $1,120 was for imaging), $314 for physiotherapy, $176 for pharmaceuticals and $1,760 for massage therapy. This amounts to a claim for $4,195.20.

The defendant agrees that this is arithmetically correct, but disputes the need for certain services, particularly the massage. The plaintiff's evidence was that it was the regular availability of massage which allowed him to successfully operate in a professional environment since his return to normal hours of work (albeit with a need for flexibility) in Sydney. A report from Mr Chapman, his Sydney masseur, who has qualifications by way of a degree in Applied Science (Occupational Therapy) and a Diploma in Remedial Massage, states that

"...continual remedial massage on a weekly basis is also recommended to maintain and build upon gains achieved. Failure to continue will result in regression to previous physical status."

I am satisfied that the past out of pocket expenses have been reasonably incurred, and I award the sum of $4,195.20.

A claim for future out of pocket expenses is particularised at $49.23 per week. This is considerably greater than the documented rate of past out of pocket expenses. This much was conceded in argument by counsel for the plaintiff, who modified this claim, before final past out of pocket expenses claims were provided, to a claim in the order of $30 per week. The past receipts would in fact demonstrate past expenses below $20 per week.

I must also take into account the nature of these past claims. Nearly half related to one specialist consultation and two imaging expenses in 1995. The largest individual item is for weekly massage treatment. While the masseur provided a report which recommended that this be ongoing, this was not supported by the evidence of the orthopaedic surgeons. I am not satisfied that an ongoing claim for massage can be made out on the evidence of the masseur alone.

Dr Henke, who reported for the defendant, indicated that the plaintiff would have an ongoing need for pharmaceuticals. His receipted out of pocket expenses for pharmaceuticals amounted to only $176.

I am not satisfied that there has been a specific weekly ongoing expense demonstrated with sufficient precision to allow me to apply an arithmetical approach to future out of pocket expenses. Nevertheless, I am satisfied, consistent with my findings as to a genuine ongoing disability, that the plaintiff will have a need for future expenditure.

In such a case the past is always a good guide to the future, and his past expenditure, excluding one major specialist consultation and imaging, has run to the order of $10 per week.

A sum of $10,000, by way of a discretionary sum but arrived at with these considerations in mind, seems to me to be appropriate.

This amounts to a total award of $125,084.20, which seems to be appropriate in all the circumstances, with costs.