Klaus Jurgen Tietze v Cameron MacMillan Pty Ltd t/as Wellbank Motorcycles and Accessories and Paul Vincent Jarvis [1998] ACTSC 259 (10 July 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MASTER T. CONNOLLY

  

  

   Negligence
- Motor vehicle accident - Plaintiff's vehicle hit by trail bike
on a bend on a dirt track - Primary liability established - Contributory
negligence - Whether plaintiff failed to slow down as he saw the bikes
approaching - Whether plaintiff was travelling on the correct
side of the road
- No issue of principle.

  

   Damages - Assessment - Personal injury - Motor vehicle accident - Disc
injury to
neck - Ongoing pain - Need for surgical intervention - Whether there
existed a causal link between the accident and the plaintiff's
major
depressive disorder - No issue of principle.

  

  

   CANBERRA, 11-12 March and 9-10 June 1998 (hearing), 10 July 1998 (decision)

   #DATE 10:7:1998

  

   Counsel for the Plaintiff: Mr G Richardson SC & Mr B Meagher

   Instructing Solicitors: Donoghue
& Co

   Counsel for the Defendant: Mr H Marshall

   Instructing Solicitors: Barker Gosling

  

  

   THE COURT ORDERS THAT:

  

   1. Judgment be entered for the plaintiff in the sum of $201,730.

  

   2. The defendants pay the plaintiff's costs.

 


  

   MASTER T. CONNOLLY

  

   2. This is a claim for damages for personal injuries arising from a motor
vehicle accident which
occurred on 20 February 1982. The plaintiff was then a
resident of Tumut, New South Wales, and was driving his car, with a trailer,
towards Canberra on an unsealed road that crosses the Brindabella range and
connects Canberra with Tumut. As he was approaching a
bridge at Conder Creek
the plaintiff saw a group of trail bikes approaching him. He says he slowed
down, and a few seconds after
the group passed another bike, ridden by the
second defendant, came around the corner, crossed on to the plaintiff's side
of the
road, and collided with the front of the plaintiff's vehicle.

  

   3. Liability was denied, and contributory negligence was pleaded.
The
second defendant could not be located to give evidence, but notice had been
given pursuant to section 63(2)(b) of the Evidence Act 1995 and an unsigned
written statement by Mr Jarvis was admitted into evidence. He stated that he
was "totally blinded" by the dust of
the other bikes, and only noticed the
plaintiff's vehicle after he had rounded a corner. He then had "no where to
go" and the front
of his trail bike hit the front of the plaintiff's vehicle.
On the basis of this statement it is difficult to see why primary liability
was denied, and indeed the issue of primary liability was not pursued when
this matter was finalised. I find that the second defendant
was negligent.

  

   4. The defendant argued that contributory negligence should be found. The
argument was that the plaintiff
should have stopped his vehicle earlier than
he did when trail bikes came around the corner. I am not satisfied that a
finding of
contributory negligence should be made. The plaintiff was
travelling at a prudent speed, and I accept his evidence that he slowed
as he
approached the corner and the group of bikes passed. I am satisfied that he
was travelling on his correct side of the road,
and that the defendant, who
said in his statement that he had been

  

  

   "totally blinded at this stage and could not see where
the road was leading
to after the corner",

   crossed over to the plaintiff's side of the road and collided with him. In
these circumstances
I am not satisfied that the conduct of the plaintiff can
be in any way attacked as amounting to contributory negligence, and I decline
to make such a finding.

  

   5. The plaintiff was born in Germany in September 1941, and was 40 years of
age at the time of the
accident. At the age of 13 he became an apprentice
jeweller and completed this apprenticeship and worked in this industry for a
time.
In the late 1950's he abandoned this trade and worked as a ceramic
tiler, because during the building boom in Germany at this time
there was more
money in being a tiler than working in jewellery.

  

   6. After completing German military service he came to Australia
at the age
of 23 and in 1964 worked on the Snowy Mountains scheme. He subsequently worked
in the jewellery trade and as a tiler.
The plaintiff married and had two
children. In 1969 he was in a motor vehicle accident which caused an injury to
his ankle, which
was subject to surgery many years later.

  

   7. The plaintiff lived at the time of the accident in Tumut. He had become
quite
active in a number of community groups in the Tumut district, and worked
as a tiler. Some years before the accident he had developed
an interest in
art, and in 1978 he commenced a diploma of arts in applied arts at the
Riverina College of Advanced Education, which
is now Charles Sturt University.
This diploma was awarded in March 1981, and immediately after this he did a
graduate diploma in
fine art in sculpture at the Phillip Institute of
Technology in Melbourne.

  

   8. The plaintiff's interest was in sculpture,
particularly using wood. He
met with considerable success during his studies, being awarded a scholarship
from the Art Gallery of
New South Wales, the Basil and Muriel Hooper Award, in
1979, 1980 and 1981 to assist him to continue in his studies. He also was
awarded a French Travelling Scholarship in 1980 which enabled him to undertake
travel in Europe.

  

   9. The plaintiff's case
is that he suffered disc and soft tissue injuries
in the accident which produced chronic pain, and which in turn has led to a
psychological
condition, and that, but for the accident and its sequelae, he
could have expected to develop his career as an artist, and obtain
employment
as a tertiary lecturer in art. The defendant accepts that the accident
produced soft tissue injuries, but claims that
whatever psychological
conditions the plaintiff presently experiences were the consequence of
experiences at a workplace in 1991,
and are not accident related.

  

   10. The accident occurred just before the 1982 academic year commenced. The
plaintiff had enrolled
at the Australian National University to undertake a
Bachelor of Arts degree that year, enrolling in Philosophy, Fine Art, French
and History.

  

   11. Mr Tietze said that at the time of the impact he experienced a small
jolt forward and a stabbing pain in
the neck. He was able to drive onto
Canberra. He had intended to do a stained glass job for a friend in Canberra,
but he says that
after reporting the accident to the police and talking about
the job it was about 2pm and pain started coming on. He said that by
about 8pm
the pain was too severe and he rang his wife in Tumut to come and pick him up.
He returned to Tumut with his wife, and
saw his local general practitioner the
following Tuesday, the accident having occurred on a Saturday.

  

   12. Dr Mendick, a Tumut
general practitioner, reported to the plaintiff's
solicitors in June 1986. He said that:

  

  

   " On examination I found bruising
over the left trapezius muscle, there was
no bony tenderness. I advised him that this would resolve with time over the
next two weeks
and that the application of heat would give him relief from the
pain he was experiencing. I did not expect there to be any long term
problems
relating to this injury."

   13. This was the last occasion Dr Mendick saw the plaintiff in relation to
the injury.

 


   14. The plaintiff moved to Canberra to undertake his university studies. He
did not have a Canberra general practitioner, but
he said that he saw Dr
Schroot, a general practitioner who was recommended to him by his sister. Dr
Schroot was unable to produce
any records relating to the plaintiff when a
subpoena was directed to him in 1998. The plaintiff says that he was given
some medication
by Dr Schroot. He attended the clinic at the Australian
National University on 30 March 1982. Dr Leigh, in a report to the plaintiff's
solicitors of June 1986, said that the plaintiff complained of upper back and
shoulder pain following the accident. She recorded
that, on examination,

  

  

   " he had some tenderness over his upper thoracic spine".

   15. She recorded that he was on medication.
This is consistent with his
claim that he had seen a Canberra doctor, as Dr Mendick's report does not
record any medication prescribed
by him. Dr Leigh referred the plaintiff to
the university physiotherapist, and he attended on several occasions up to
June 1982.
Her report concludes:

  

  

   " When he was last seen by our physiotherapist on 11 th June 1982 he was
reported as being much
improved. We do not expect any further complications of
his injury."

   16. The plaintiff says that he was in constant pain due
to his neck during
the first half of 1982. On 17 July 1992 he withdrew from his studies at the
Australian National University. On
the form he stated:

  

  

   " Due to spinal injuries sustained in a car accident and the time lost in
treatment, also a possible
hospitalization as treatment is not responding, I
no longer can keep up with studies."

   17. In March 1982 the plaintiff had withdrawn
from the French unit at the
University, and in that application he had stated:

  

  

   "The work load is to large as I have a
study skill problem."

   18. No mention was made of neck pain in this form, but Mr Tietze maintained
in cross-examination that he
was having neck problems throughout this period.
He also acknowledged that he did have problems in literacy and English
expression
and that his course supervisor suggested that he needed special
help in this field.

  

   19. After withdrawing from University
the plaintiff returned to Tumut and
did some tiling work. He said that this caused difficulties. Mr Hendrix gave
evidence to support
the plaintiff on this point. He worked as a ceramic tiler,
and during the mid 70's worked with the plaintiff. He said that the plaintiff
was very fit and worked long hours. He maintained his friendship with the
plaintiff, and in 1982 he said that the plaintiff rang
him and told him that
he had been involved in an accident, and asked him to assist him in finishing
some tiling jobs. At the time
Mr Hendrix was living in Young, and he went down
to assist the plaintiff. He said that the plaintiff was a different person,
and
that he had a sore back, which affected his work ability.

  

   20. At this time the plaintiff says that he would sometimes work
for three
of four hours as a tiler before the severe pain would stop him. He says that
he obtained some relief by way of physiotherapy
from Tumut Hospital, but no
records support this. He acknowledges that he did not again see Dr Mendrick.

  

   21. In late 1982
the plaintiff applied to undertake further studies at the
College of Advanced Education at Wagga to study for a Diploma of Education.
He
did enroll in this course, and undertook units over the next few years,
eventually successfully completing the course in 1988.
At the time the
plaintiff believed that completion of this qualification would allow him to
teach art in the secondary school system,
something which he believed that he
would be able to do.

  

   22. The plaintiff moved to Canberra in mid 1983 and transferred
his
enrollment to the Canberra College of Advanced Education. In 1985 he withdrew
from the course, and gave as his reason the need
for hospitalisation for
cancer. In a form dated 14 June 1985 the plaintiff wrote, in the space for
reasons for applying for a deferment:

  

  

   "Medical Reasons. I suffer from cancer went to hospital for routine
treatment on the 06.05.85 initially for one week
but was kept in to the
17.05.85 and because of a reaction to the treatment was readmitted on the
20.05.85 to the 05.06.85. Because
of loss of much study time due to treatment
I have to withdraw temp."

   23. The plaintiff said in cross-examination that he had
been diagnosed with
a form of cancer in the 1960's, and that there was a concern in 1985 that it
had re appeared. He was unclear
about the nature of this disease, and no
documents or medical reports confirm this claim. He later admitted that the
response was
a lie, and that he had lied to the university in giving his
reasons for withdrawal.

  

   24. This is the most stark and obvious
point on which the defendant
attacked the plaintiff's credit. The 1982 withdrawal from the A.N.U. cites
neck pain, which is consistent
with the plaintiff's case, but it goes on to
refer to the possibility of hospitalisation. The plaintiff claimed that it
could have
been Dr Shroot that said he might need hospitalisation if his neck
did not improve. If this is true, it is in any event well short
of the claim
of imminent hospitalisation, which appears in the form. Throughout his
evidence Mr Tietze became evasive and gave evidence
which I considered to be
unsatisfactory. The 1985 withdrawal form is an acknowledged lie.

  

   25. The plaintiff said that he
consulted doctors in Wagga and Melbourne,
and a physiotherapist at Melba in the period 1983-1984, but no record of such
attendance
was produced. The defendant argued that I should draw an adverse
inference from the absence of such records. Counsel pointed to the
fact that
the initial opinions from Dr Mendik and the University Health Service were
obtained in 1986, and that I should find that
the plaintiff could have
obtained any information from Dr Shroot and other doctors at the time he
obtained these preliminary opinions,
having decided to bring these
proceedings.

  

   26. The plaintiff worked as a casual relief teacher for the ACT Schools
Authority
in the period 1984-1988. The defendant tendered forms showing that
the plaintiff applied for positions on a casual relief, long term,
part time
basis, teaching art, industrial art and German at the secondary level in
1985-1988. The 1988 form asked what days he would
be available to teach, and
he stated he would be available Monday-Friday.

  

   27. Mr Tietze acknowledged that he worked full
time hours for periods as a
teacher, but says that he experienced neck pain. Mr Kelly, who was an
industrial arts teacher at Stromlo
High School between 1984 and 1988 gave
evidence for the plaintiff. He said that the plaintiff was an effective
teacher and was capable,
and had a good rapport with the students. He agreed
that the job of industrial arts teaching was more demanding physically than
teaching
in other subjects such as English.

  

   28. Mr Kelly said that Mr Tietze often complained of a sore back, and that
it was difficult
for him to turn his neck. He agreed, however, that he never
saw the plaintiff as being incapable of performing the workload demanded
of
him.

  

   29. The medical records of the plaintiff pick up from February 1986 when he
consulted Dr Marinos, a Canberra general
practitioner for neck pain. There
were a series of consultations in 1986, and x-rays revealed problems at the
C5/6 and C6/7 levels.
A CT scan was performed in March 1986 and the plaintiff
was referred to Dr Chandran, a neurosurgeon. He reported the scan as showing
quite a large bulge of the C6/7 disc and to a lesser extent C5/6 on the left.
Dr Andrews confirmed protrusion of the disc at these
levels, and in July 1986
Dr Chandran performed a fusion at this level.

  

   30. The plaintiff claims that this injury was caused
by the accident. Dr
Chandran, Dr Marinos and Dr Scott gave opinions supporting a link between the
accident and the disc injury, which
of course was first diagnosed some four
years after the accident.

  

   31. Dr Chandran said in his evidence that it was impossible
to say by
looking at the disc injury when it occurred, but from the history given by the
plaintiff of neck pain developing after
the accident and steadily getting
worse, he accepted that the motor vehicle accident was responsible for the
disc injury. Dr Chandran
was cross-examined at length on the absence of
medical history of neck pain between 1982 and late 1994, but said that the
history
he had taken was still consistent with an injury either causing the
disc protrusion immediately at the time of the accident, or severely
weakening
the disc so that it caused some ongoing pain leading to an eventual disc
disruption, and consequent increase in pain, in
late 1995.

  

   32. Given the difficulties I have previously referred to I would have had
some difficulty in accepting Mr Tietze's
unsupported evidence of ongoing neck
pain, but I accept the evidence of Mr Kelly and Mr Hendrick as impartial and
truthful, and I
thus find that the plaintiff did continue to suffer ongoing
neck pain from the date of the accident. On the basis of this finding,
I find
that it is more likely than not that the motor vehicle accident was
responsible for the disc injury diagnosed and operated
on in 1986.

  

   33. Following the operation the plaintiff was unable to work for a period
and was on social security sickness
benefits. In a report of October 1986 Dr
Chandran recorded that on an examination on 26 September 1986 the plaintiff
assessed his
improvement at 90%. In a report of 17 February 1987 Dr Chandran
reported that the plaintiff had been back to casual teaching:

 


  

   "And experiences some lower neck and scapula pain. He has been swimming and
bike riding but when he indulges in excessive
activity of this nature it
hurts."

   34. The plaintiff continued with relief teaching, and made various visits
to his general practitioner
complaining of neck pain. In 1989 he began working
as a youth worker with the Richmond Fellowship, initially on a part time and
then
on a full time basis. He had been doing some casual work there from 1985
concurrent with his casual teaching. Ms Barrett, a supervisor
at Richmond
Fellowship up to September 1990, gave evidence of Mr Tietze's work
performance. She said that he was reliable, and would
always turn up for his
shift, but that he would never do other activities such as going on camps. She
said he would take the kids
on activities, but she never saw him participate
himself in activities like bike riding. She said that he sometimes said he was
feeling
tired, and that he would get up and walk around during long staff
meetings and say he was stiff.

  

   35. Ms Barrett agreed in
cross-examination that she never had any cause to
complain about his capacity for work, and that the work of a youth worker in
such
an organisation was very difficult, and was:

  

  

   "Stressfully confronting, physically demanding and sometimes not
rewarding."

   36. In June 1991 the plaintiff attended Dr Marinos and complained of upset
following a conflict at work at Richmond Fellowship.
This led to a significant
period of psychological breakdown, leading to long hospitalisation, and
ongoing psychological problems.
It is the plaintiff's case that his present
psychological condition was caused by the 1982 motor vehicle accident.

  

   37. The
plaintiff was in receipt of workers compensation following this
breakdown, and brought a common law claim, which was settled some
years later.
At the time of admission his treating psychiatrist was Dr Lubbe. In 1993 she
provided a report to his present solicitors
in which she stated:

  

  

   "Mr Tietze has been under my care since approximately mid 1991 both as an
in patient and as an out
patient, for help in the management of a major
depressive illness, form which he has recovered very well indeed. His current
contact
with me is minimal. I see him approximately every two month as an
outpatient and I expect to discharge him completely from my care
within the
next few months. I do not think that the injuries suffered by Mr Tietze in a
motor car accident on the 20 th February
1982 contributed to his recent
depressive illness."

   38. This is an unequivocal opinion from the treating psychiatrist. The
plaintiff
has given histories to subsequent doctors, which link all his
problems to the motor vehicle accident. Dr Lubbe herself has now changed
her
opinion, and in a report of 31 October 1996, in which she took an extensive
history of his complaints following the motor vehicle
accident, she said:

  

  

   "I now regard his depressive episode of winter 1991 as the result of many
vicissitudes with the clashes
at work at that time being " the straw that
broke the camels back, and once it was resolved it became apparent that Mr
Tietze's pain,
sadness and frustration of his career plans all compounded to
maintain Mr Tietze in a much less happy and productive state than was
his
earlier norm."

   39. She agreed with a report prepared by a clinical psychologist, Mr
Chrichton, that linked his depressive
condition with chronic pain from the
accident.

  

   40. The defendant tendered two psychologists reports which had been
prepared
at the request of Mr Tietze's former solicitors for the purposes of
his claim that his psychological condition was a work related
injury. Dr
Rosenman, in a report of 23 July 1991 said that:

  

  

   "The episode at work at Richmond Fellowship appears to have
contributed to
his condition albeit as a stressor acting on a predisposition in personality
and the prior physical illness (glandular
fever)."

   41. Dr Rosenman took no history of complaints of chronic pain from the
accident, and noted

  

  

   "He gave no history
of previous psychological disturbance."

   42. Dr Veness, a consultant psychiatrist, provided an extensive opinion
dated 4 August
1992. This opinion links the plaintiff's depressive illness,
which Dr Veness regarded at that time as severe and limiting the plaintiff's
future work capacity, to the work incident, although he notes that the
plaintiff did test positive to exposure to the virus that
causes glandular
fever, and noted that glandular fever can trigger post viral depressive
illness.

  

   43. I find Dr Veness's
opinion of significance because it contains a
background history, which refers to the motor vehicle accident. Dr Veness took
a history
that the plaintiff had the fusion operation in 1996, and says:

  

  

   "The operation was necessitated after a severe whiplash
injury in a motor
vehicle accident caused pain and loss of function in the left upper and lower
limbs."

   44. He noted that Mr
Tietz

  

  

   "...estimated this operation was 95% successful,"

   and took a history that the plaintiff was "very happy" at
work at the
Richmond Fellowship after recovery from the operation.

  

   45. Taking into account all of this material, I am not
satisfied that the
plaintiff's present psychological condition can be attributed entirely to the
motor vehicle accident. The opinions
which support this link depend on a
history from the plaintiff of chronic pain and depression or sadness since the
accident, a history
quite different from that recorded by Dr Veness in support
of the plaintiff's claim that his psychological condition was work related.

  

   46. The defendant tendered a report from Dr Saboisky, a consultant
psychiatrist, which reviewed the plaintiff's history and
concluded:

  

  

   " It is my considered opinion that the depression that he had could be very
well contributed to by his chronic
pain syndrome but the primary trigger for
his initial depressive de compensation was the altercation at work."

   47. On all of
the evidence this seems to me to best summarise the
plaintiff's present condition.

  

   48. I therefore find that the plaintiff
suffered an injury to his neck at
the time of the accident which caused a degree of ongoing pain and discomfort,
but which did not
preclude him working up to full time hours as a relief
teacher and casual youth worker in the years following the accident. These
symptoms became worse in late 1985, and resulted in an operation in mid 1986.
The plaintiff suffered a major psychological de compensation
in 1991 which was
triggered by conflict and stress in the workplace, and which I do not
attribute to the motor vehicle accident.
Since then he has continued to suffer
from psychiatric problems of ongoing depression, and continues to complain of
neck pain.


 

   49. The plaintiff has attended the rehabilitation service at Canberra
Hospital for pain management under Dr Dunlop, who has
noted the link between
his pain and his depressive condition. He has attended a pain management
programme in Sydney.

  

   50.
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'."

   51. In relation
to general damages, I assess the plaintiff on the basis of
a disc injury productive of ongoing pain and subject to surgical intervention.
The assessment of this injury is rendered more difficult by the presence of
the very significant level of depression, which I find
to be only partially
related to the motor vehicle accident. I must take into account the
plaintiff's statements to Dr Chandran and
Dr Veness in which he reported a 90%
and 95% improvement, and the fact that following the recovery from the surgery
he was able to
work as a relief teacher successfully, and to obtain a full
time position in the difficult position of a youth worker until the
psychological
de compensation. He has remained unable to work since this
event, and the evidence from the plaintiff's doctors, who now attribute
the
psychological condition to the accident, is that he will not work again due to
a combination of his depression and chronic pain.

  

   52. In relation to general damages, I award the sum of $80,000. I would
attribute half of this to past loss, generating interest
of $26,230, making a
total general damages award of $106,230 which I consider to be appropriate in
all of the circumstances.

  

   53. The plaintiff's claim for economic loss is based on the premise that,
but for the motor vehicle accident, he would have obtained
a full time
position in a University as a lecturer, and eventually a senior lecturer, in
art. I am unable to accept that this was
ever a likely scenario. The plaintiff
certainly has demonstrated an aptitude for art, and he did well in art
studies. He admits,
however, that he had difficulty in coping with the
language and intellectual demands of undergraduate study at the Australian
National
University. He admits that in withdrawing from courses he was not
honest with the university authorities and gave false reasons.
Ms Buchanan,
who is Head of Foundation Studies at the Canberra School of Art, agreed that,
in addition to artistic skills and communication
skills, honesty and integrity
are "absolutely" important in a prospective employee.

  

   54. I note however that he was able to
successfully complete a Diploma in
Education, and was able to successfully work as a secondary school art
teacher. Mr Kelly said
that he was indeed a good teacher. He also worked as a
youth worker after the accident, and was able to work in this demanding field
on a full time basis until the onset of a major psychological condition in
1991. I note that he acknowledged that he did enjoy doing
some of his art in
this period, had completed a studio in the mountains, and had done some work
towards sculpting in bronze. The
studio was lost to a bush fire subsequent to
the 1991 depressive illness, and he told Dr Veness that "recently" he
destroyed a series
of wax models ready to be cast in bronze. In cross
examination Mr Tietze said that it was possible that if it were not for the
Richmond
Fellowship incident he may have gone on to cast these sculptures.

  

   55. As I have found that the plaintiff's psychological
condition was only
in part accident related, it would in any event follow that I would not find
an ongoing economic loss as pleaded
made out. Rather, I must attempt to
quantify the plaintiff's loss to the point of the psychological collapse in
1991, and then attempt
to consider what would have happened to the plaintiff
had this condition not developed, and assess compensation accordingly. Taking
all of these factors into account, I would adopt a lump sum approach to the
plaintiff's past and future economic loss, and award
a buffer of $75,000
inclusive of interest. In assessing this figure I note that the plaintiff was
able to work as an art teacher
and continue an interest in art and indeed to
create preparations for sculptures after the accident, but that he destroyed
these
following his 1991 depressive illness.

  

   56. Out of pocket expenses were claimed in the sum of $28,123.30. Of this
$7,740 related
to an inpatient stay at Calvary hospital which was related to
the plaintiff's depressive condition, and I find that this amount,
and
interest in the sum of $3,000.00 is not related to the accident. This leaves a
claimed sum of $17,383.30. The plaintiff acknowledged
that the list of
expenses relating to general practitioner visits could have some references to
non accident related visits, although
I accept that the plaintiff's legal
advisers have done the best they could in the circumstances, and where Dr
Marinos' notes make
it clear that a visit was non accident related, those
visits were not claimed. It is appropriate to adopt some discount for this
factor, and I award out of pocket expenses in the sum of $16,500.00.

  

   57. Future out of pocket expenses are claimed for ongoing
medical and
psychiatric treatment. I would allow a discretionary buffer in relation to his
neck injuries and award $4,000 in respect
of this head of damages.

  

   58. This amounts to a total award of $201,730 which I consider to be
appropriate in all of the circumstances.