Julie Parris v K-Mart Australia Pty Limited [1999] ACTSC 89 (26 August 1999)

Last Updated: 6 October 1999

JULIE PARRIS v K-MART AUSTRALIA PTY LIMITED [1999] ACTSC 89 (26 August 1999)

CATCHWORDS

NEGLIGENCE - personal injury - whether employer negligent in failing to instruct employee on how to safely retrieve stock - plaintiff more likely than not to heed such instructions - employer negligent - no contributory negligence.

DAMAGES - assessment - physical and psychiatric disability - general damages - unpaid domestic assistance - loss of past and future wages.

Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327

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

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

No. SC 370 of 1997

Judge: Higgins J

Supreme Court of the ACT

Date: 26 August 1999

IN THE SUPREME COURT OF THE )

) No. SC 370 of 1997

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JULIE PARRIS

Plaintiff

AND: K-MART AUSTRALIA PTY LIMITED

Defendant

ORDER

Judge: Higgins J

Date: 26 August 1999

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment entered for the plaintiff in the amount of $172,452.32.

1. On 10 April 1996, the plaintiff was employed by the defendant at the latter's Tuggeranong Store. She was employed there as a mini-lab operator. That required her to operate a machine which developed photographs from exposed film. It consumed in the process, photographic paper and chemicals. From time to time in the course of the day further supplies would be required. The preferred course was for the plaintiff to ring the store room and request a stores person to bring those supplies to her. That might not, in some circumstances, be possible. The stores persons had other duties to perform and might be unavailable. It was also known by the plaintiff that she ought not to leave the mini-lab area unattended. There was, usually, at least one other person on duty there.

2. So it was on 10 April 1996. The plaintiff was, though young (twenty-two years of age) and fit, a keen horsewoman and former apprentice jockey, nevertheless (and still is) slightly built. She needed further supplies, particularly photographic paper. She went to the storeroom to get it. It was her belief that she had rung the storeroom to cause those supplies to be delivered to her and was told no-one was available. She was not, however, very firm as to this recollection.

3. In any event, she was firm in her recollection that she did go to the storeroom. The photographic paper she wanted was contained in a box stored on a shelf. The box was about thirty centimetres square and about forty-five centimetres high. The height at which it was stored was not given precisely. It was above the plaintiff's shoulders. She had to reach up so as to pull the box towards her. The box contained two rolls of photographic paper each of which weighed seven kilograms. The plaintiff pulled the box towards her intending to catch it with her left hand while pulling and steadying it with her right. However, as the weight of the box and two rolls in it fell onto the plaintiff's left hand, palm up, her wrist hyperextended causing severe pain.

4. Believing that she had sprained her wrist the plaintiff, who is naturally right-handed, strapped it. She continued with her duties, though with difficulty. The use of the mini-lab required her to use the left hand to operate a key pad.

5. Before leaving work that day, she reported the injury to a supervisor, Ms Hudson.

6. She attended work the next day but, though the wrist was still strapped, she found it very uncomfortable carrying out her duties.

7. She consulted a general practitioner, Dr Tim Lickiss. He prescribed Voltaren, an anti-inflammatory drug, and advised the plaintiff to keep the wrist strapped.

8. It is the plaintiff's case that this incident and the resultant injury has caused serious damage.

9. Both liability and quantum were challenged.

LIABILITY

10. The plaintiff's account of the manner in which she came to be injured was not contradicted. It was, however, suggested that the plaintiff brought the injury on herself by failing to utilise the services of a storeman or by failing to use a ladder.

11. The plaintiff said she was aware of at least one ladder of over three steps. She was not aware of other types of ladders or steps. It had not been apparently available in the area to which she resorted, though she did not conduct a search for one.

12. The defendant called evidence from Mr Peter McDermott, retail area manager for the defendant. He was, during 1996, "Replenishment Manager" at the Tuggeranong store of the defendant. He had charge of about thirty staff. Some were stationed at the loading dock, unloading goods received. Others stored those goods on shelves in the storeroom. Others had responsibility for loading stock onto trolleys so that stock on the retail trading floors could be replenished overnight.

13. To enable staff to access higher shelving there were ladders. There were, he believed, about five or six rung step ladders. Four of those ladders were provided. There were two platform ladders (about three steps) and three or four "safe-T-steps". The latter seem to be platforms forty-five to fifty centimetres in height. The use of such a step would have avoided the need for the plaintiff to reach above her shoulders to access the box in question.

14. Mr McDermott did not suggest that there was any rule forbidding retail staff from accessing stock. His staff would, he said, try to "keep the traffic down" in the storage area and so he discouraged such access. Clearly, however, the mini-lab differed from other retail areas. It consumed materials at a variable rate. The sale of stock from other areas would usually be more predictable. Indeed, some such areas might well need goods which only stores persons with their special training and equipment could move.

15. Mr McDermott stated that his staff were instructed on safe handling techniques. It was part of that instruction that staff should not attempt to pull out stock such as the box the plaintiff accessed from an overhead position. They should seek assistance whether by way of other staff or a ladder or step. He did not, of course, have any role in instructing the plaintiff.

16. He conceded that if his staff were busy the plaintiff might well be told to get her supplies herself and that the ladders and steps in the storage area might also be in use by his staff.

17. Ms Patricia Pascoe is a "Line Manager" with the defendant. At the time of the plaintiff's injury she had, relatively recently, during February 1996, been appointed "Leisure Manager". One of her areas of supervision was the mini-lab. The plaintiff had started her employment with the defendant as a mini-lab operator, in November 1995.

18. When Ms Pascoe took over as Manager she was concerned to ensure that safe lifting practices were promoted. She gathered together the relevant material. New staff, on appointment, were instructed to read the "safe operating practices" material. It was her objective to ensure that all permanent staff, including existing staff, had read the material. To signify that the material had been read, those staff who did so were instructed to sign an acknowledgment that they had done so.

19. The plaintiff denied receiving any such instructions or reading any such material. Ms Pascoe could not specifically recall instructing the plaintiff to do so. No document was produced containing any acknowledgment by the plaintiff that she had been shown and had read such material. I conclude from these facts that it is more likely than not that the plaintiff was not given any instruction concerning the safe retrieval of stock items. I infer that management simply failed to ensure that all staff had been so instructed, though it recognized the need to do so.

20. The material available included the following instruction:

"Use ladders or safe-T-steps to access or place items above shoulder heights. Platform ladders should be used when reaching awkward or heavy objects."

21. The document was dated June 1995. Thus it is apparent that the defendant had by then recognised the hazard posed by the accessing or placing of heavy or awkward items above shoulder height. It recognised the likely consequence of "falls, Muscles (sic) strain". However, it failed to ensure that the plaintiff was duly warned or instructed.

22. It seems to me more probable than not that the plaintiff would have heeded such warnings or instructions. There was no complaint concerning her pre-injury behaviour which would cast doubt on the plaintiff's conscientiousness in that regard.

23. I therefore conclude that the defendant was negligent and that negligence was the effective cause of the plaintiff's injury.

24. Contributory negligence was pleaded. However, in the absence of any evidence of disobedience of instructions to use ladders or to refrain from accessing heavy materials it seems to me that this plea must be rejected. The hazard addressed by the printed safety material "Safe Operating Practice" is not so obvious that it would intuitively come to the forefront of the mind of an employee in the position of the plaintiff. Indeed, Ms Pascoe's evidence of her perception of the need to ensure the proper instruction of staff, and, presumably, the reinforcement of those instructions from time to time, supports that view. I am not satisfied that the plaintiff was guilty of any contributory negligence.

25. I turn then to damages.

DAMAGES

Extent of the Disability

26. From the time of the injury, the plaintiff states that she has experienced constant pain in and weakness of the left wrist. Use of the wrist, particularly repetitive use, aggravates the pain. No doubt the latter led some, including Ms Pascoe, to believe the plaintiff was complaining of repetitive strain injury.

27. The plaintiff found, in effect, that any activity requiring use of the left wrist aggravated the pain. That included the mini-lab which required both hands. She was also subjected to scepticism on the part of senior work colleagues. They appeared to her not to accept that she had a genuine disability.

28. By 13 May 1996 the wrist had not improved. Dr Lickiss sent her to physiotherapy. He advised a change of duties.

29. During June, it being apparent that there was still no improvement, Dr Lickiss had the plaintiff's wrist placed in plaster.

30. On 3 July 1996, after the plaster was removed, the plaintiff was cleared to return to work on restricted duties and was assigned to the Music Department.

31. The placement was not a happy one.

32. Her supervisor, Mr Gordon Whaley, seemed to the plaintiff to be sceptical of the genuineness of her disability.

33. She had some time off from 2 August to 26 August 1996. She had aggravated the wrist both by stacking CD's and horse-riding.

34. Finally, on 25 October 1996, the plaintiff ceased work. This accorded with medical advice. The perceived cause of it was a combination of the wrist disability with depression and anxiety. The latter conditions were and had been exacerbated by the plaintiff's perception of scepticism and hostility from both Mr Whaley and Ms Pascoe.

35. Whilst Mr Whaley did not give evidence, Ms Pascoe did. She conceded that she did not believe that the plaintiff had any disability. That was, as it happened, due to a misapprehension on her part that the plaintiff was claiming "RSI" as a result of mini-lab operation. She was unaware that there had been a frank injury the effect of which was exacerbated by mini-lab work. She considered that she had not communicated her scepticism to the plaintiff but it seems to me quite likely that she did whether she was aware or not that she was doing so.

36. In any event, even if the plaintiff was unduly sensitive, she did suffer severe psychological consequences. That was not entirely due to work influences. There were financial and other stressors at home. Her husband, a track work jockey, had a bad fall late 1995. It had been for that reason that, before her injury, the plaintiff had asked to reduce her hours. She intended, she said, to use the additional free time to do track work herself. She hoped to make up, in that way, for the earnings her husband had lost.

37. On her return to work following the injury, that reduction had been put into effect. However, the plaintiff was, by this time, desirous of increasing her hours again. Her husband was not earning, and she could not do track-work herself due to her own injury. She also had two small children to look after, though her husband's inability to work increased his availability, subject to his injury, for household duties. Unfortunately, her hours could not be increased beyond twenty-five per week. That was not, it should be stressed, because she was physically incapable of working longer hours. Nor was it, I am satisfied, because of any ill-will towards her from management. Extra hours were simply not available.

38. She was referred to Ms Val Gould, a psychologist, for treatment for chronic pain, anxiety and depression. Those conditions were reactive to the severe chronic pain and disability in the left wrist and forearm.

39. Dr Lickiss considered that the plaintiff was, as a result of these conditions, unfit for work. She ceased work on 25 October 1996.

40. For whatever reason, the plaintiff was obliged to attend at the Tuggeranong Store of the defendant to collect her weekly payments of compensation. The plaintiff felt that Ms Pascoe was continuing to be sceptical and hostile.

41. Ms Pascoe, again, was not conscious of doing anything which might have conveyed that attitude. I consider that she probably did, unconsciously, display such an attitude. I also think the plaintiff, in her fragile psychological state, exaggerated to herself the extent of that hostility.

42. However, the plaintiff's emotional upset was, I accept, real enough. It was causally related to the original injury. The defendant is liable for the result of it even if it was not an expected or usual consequence.

43. In view of the lack of improvement, the plaintiff was on 3 April 1997, referred to Dr Fatma Lowden, a psychiatrist. Dr Lowden was prescribed anti-depressant medication.

44. On 29 April 1997, a crisis occurred. The plaintiff had a particularly stressful time waiting for Ms Pascoe to come and escort her to the pay office to receive her pay. Ms Pascoe seemed particularly dis-approving and hostile. On the way home another vehicle ran into the back of her car. She felt unable to cope and swallowed an overdose of pills when she arrived home.

45. The plaintiff's husband found her shortly afterwards. As a result the plaintiff was immediately taken to hospital. She was in the psychiatric ward for four days under the care, originally, of Dr Hughson (psychiatrist). She was then transferred to the care of Dr William Knox, another psychiatrist.

46. Under Dr Knox's care the psychiatric disturbance suffered by the plaintiff gradually subsided. There was up until June 1997, difficulty also in her relationship with her husband. Counselling was undertaken to address this issue. Those tensions were significantly contributed to and exacerbated by the plaintiff's frustration with the ongoing pain and disability in her left wrist and forearm.

47. On 12 August 1997, the defendant terminated the plaintiff's employment. That, however, seemed to have a beneficial effect in two ways. First, it relieved the plaintiff's anxiety about returning to her work-place. Second, she was referred to a rehabilitation provider, Combrook. In turn the provider referred her to ACT CIT (Canberra Institute of Technology) where she undertook basic computer skills and job seeking training. She was referred for work experience to SERA (South Eastern Racing Association). This suited her well. The plaintiff has for most of her life been devoted to horses and horse-riding. That placement gave her some training and roused her interest in obtaining a cadetship as a Racing Steward. There were, however, no vacancies. She is hopeful that one may come up over the next twelve months. Vacancies do not occur very frequently.

48. In the meantime, in 1998, the plaintiff enrolled in a further CIT course. It is a two year course leading to qualifications as a Conventions and Functions Manager. It was interrupted by her third pregnancy, through which she was quite ill. However, the results of her studies both before and after that interruption, have been quite good. The plaintiff expects to finish the course towards the end of the year 2000.

49. I am satisfied that this expectation is almost certain to be fulfilled.

50. The plaintiff's recreational and potentially income earning other interest, was in horse-riding. She says her previous participation as a rider has been seriously curtailed. She had trained as a jockey. The delicate control required for dressage (for example) is not something she can now achieve. She does not engage in galloping, either in the form of horse-racing or track work.

51. Her capacity to engage in household tasks is limited by her disability which is also aggravated by the cold weather. The pain can become so severe that she will take panadeine forte for relief.

52. That is not to say the injury is crippling. The plaintiff's capacity is, I think, illustrated by her account of the consequences of a second accident suffered by her husband. His foot was severely injured when a horse trod on it. He was totally disabled for some considerable time. The plaintiff found it necessary to perform all household tasks, including looking after the three children without his help. She coped, apparently, though the wrist pain was aggravated. She has also re-arranged her tasks so that less reliance is placed on use of the left hand.

53. It was suggested to the plaintiff in cross-examination that, in an endeavour to be re-assigned to the mini-lab, she had told Ms Pascoe that there was nothing wrong with her arm and there never had been.

54. She did agree that there were many tasks she could have performed at the defendant's store. Further, despite the aggravation, she did continue horse-riding and some participation in shows. She is able to drive a manual car sometimes without a splint.

55. There was a somewhat unremarkable video showing the plaintiff riding a pony at a slow walk. On occasions she held the reins in her left hand. It did not seem to me that any significant strain was placed on the plaintiff's left arm or hand in the course of that ride.

56. It was suggested to the plaintiff that she did not wish to go back to the defendant's employ. She did concede that she would not have been happy doing so.

57. Her de facto husband, Mr Tim Grace, confirmed that the plaintiff, following her injury, seemed to be genuinely in pain with her left wrist. She had it strapped and it limited her household activities. She became depressed when it appeared that the genuineness of her injury was doubted by work colleagues.

58. Since she started her retraining courses her mental state has greatly improved, though the wrist condition has remained the same. It was the psychiatric condition which had made the plaintiff wholly unfit for employment. That condition would have been exacerbated had the plaintiff attempted to return to work with the defendant, at least at the Tuggeranong Store.

59. Ms Pascoe gave evidence. She first learned of the injury, she said, when the plaintiff told her that she had been to the doctor. She understood that the plaintiff "had RSI". The plaintiff, she recalled, returned to duty for a time, then went off for a time. On her return to work, the plaintiff was restricted to light duties. Ms Pascoe was aware that the plaintiff had been happy with mini-lab operations. She said it was in that context that the conversation about there having been nothing wrong with her arm had occurred.

60. Further, she said that, before the injury, the plaintiff had said that she wanted to reduce her hours to spend more time at home with her children. She had not, she said, mentioned doing track work.

61. Ms Pascoe, even in giving evidence, radiated hostility towards the plaintiff. She clearly misunderstood the plaintiff's account of her injury. That was understandable. Dr Lickiss in his medical certificate had described the injury, perhaps inaccurately, as "overuse". Ms Pascoe conceded that, in her view, RSI or "overuse" was a fictitious condition. As a result, she clearly believed that the plaintiff had never had any disability. I believe that hostility has coloured her recollection.

62. If confirmation is required it emerged in cross-examination. Ms Pascoe asserted that each of the above conversations was, because of their significance, recorded by her and reported in writing to her superiors, including the compensation manager. No such record was produced. I am not persuaded that any conversation such as Ms Pascoe now recalls actually occurred. Either she misunderstood what was said or has projected her own beliefs into the plaintiff's mouth. Either way, I do not accept her account of those conversations as accurate.

63. Nor, even if I did, would it alter the truth concerning the plaintiff's condition and complaints. The medical evidence, to which I will shortly turn, shows that there was an injury. It supports the plaintiff's complaints of continuing disability. The plaintiff's economic circumstances, after her husband's fall and before her injury, make it exceedingly unlikely that she would not have taken the opportunity to earn money from track work. Perhaps that would have, incidentally, left her with more time at home with her children. It is possible some remark along these lines was misconstrued by Ms Pascoe.

64. The extent of the disability arising from the injury is more difficult to assess.

65. Dr Lickiss has kept an account of ongoing complaint concerning, and treatment of, the left wrist since 12 April 1996. There is recorded a cycle of improvement and exacerbation. The exacerbations not only related to work activity (up to cessation of work) but also horse-riding. I accept those complaints as indicating consistency with the plaintiff's evidence as to the extent of her disability.

66. In Dr Lickiss' opinion the wrist pain is a result of a chronic condition initiated by the plaintiff's injury at work.

67. Both Ms Val Gould and Dr William Knox agree that the psychiatric consequences following the injury, though severe, have abated. Indeed, Dr Lickiss' last note that the plaintiff was "well and happy" is more of a reflection of the anxiety and depression having passed than a comment on the left wrist disability. The need for that psychiatric treatment supports the view that the plaintiff did suffer a genuine disabling injury to which the psychiatric disorders were reactive.

68. She has been referred to various specialists. Dr Colin Andrews, consultant neurologist, could find no neurological deficit. Dr Andrew Brook, rheumatologist, did find "a little more fluid in the [left] wrist joint than one would normally see". In his opinion that was consistent with a prior injury. He did not consider that surgery was an option but, as at 8 May 1997, felt that the prognosis was "reasonably good".

69. The plaintiff was referred, for medico-legal assessment, to Dr Geoffrey Speldewinde, a rehabilitation physician. He found a "steroid atrophy scar over the dorsal aspect of the distal radio-ulnar joint". That had been the result of cortisone injections. He found "a marked coldness of the palmar aspect of the left hand and finger" following the examination which had, in his words, "provoked some local discomfort".

70. That would tend to support the plaintiff's complaint that significant usage of the left hand can provoke pain.

71. As at 12 January 1998, Dr Speldewinde was of the view that the left wrist and forearm impairment was "15% of the whole person" and likely to be permanent.

72. The plaintiff was also referred to Dr David Champion, a consultant physician in rheumatology and pain management. He examined her on 20 January 1998 and 18 June 1999.

73. His physical findings were similar to those of Dr Speldewinde. He also agreed with Dr Brook's finding, based on an MRI scan of 28 April 1997, that the fluid in the left wrist joint appeared higher than normal.

74. She was, in his view, then fit for work not involving any particular use of the left hand and wrist. As at 11 July 1998, he considered that there was a probability of at least 20 per cent permanent loss of efficient use of the left arm below the elbow.

75. His re-assessment on 10 June 1999 noted that, save for the aggravation resulting from her assumption of all home duties, then settling, the plaintiff had been coping well with the wrist disability.

76. The description of the condition as either "reflex sympathetic dystrophy" (his description) or "complex regional pain syndrome type I" (Dr Speldewinde's diagnosis) were, he reported, "synonymous". He reviewed a large number of other reports which seemed to him supportive of that diagnosis.

77. He confirmed his previous assessment of permanent disability noting that "any resolution in the natural history will be slow and partial".

78. Dr Robert Scott, an occupational physician, examined the plaintiff on 28 January 1998 and 7 May 1999. He found objective signs affecting the left hand and wrist. They felt cold compared with the right side. There was some muscle wasting.

79. He agreed with Dr Speldewinde's assessment of the plaintiff's level of disability. He was firmly of the opinion, in his second report, that the plaintiff had indeed developed reflex sympathetic dystrophy.

80. The defendant tendered reports from Dr Wolfenden, consultant neurologist, and Dr James Bodel, orthopaedic surgeon.

81. Dr Wolfenden found no defect relevant to his speciality. He reported the history given and assumed ligament damage to be the cause of any disability.

82. Dr Bodel, who first examined the plaintiff on 12 September 1997, found evidence of reflex sympathetic dystrophy from the distal one third of the forearm to the finger tips. That condition, he considered, could take two to three years to resolve. He last examined the plaintiff on 1 April 1999. He felt her condition had greatly improved. As a result, he assessed her ongoing permanent disability at 2 per cent loss of use of the left arm below the elbow.

83. I do not take the view that the medical evidence is in conflict. I take Dr Champion and Dr Scott's assessments to be based on their most recent examinations and to be reporting then current disability levels. Dr Bodel, it seems to me, is more optimistic than they are as to long term recovery and in assessing the residual level of disability thereafter.

84. Dr Champion's view that recovery will be "slow and partial" seems to acknowledge the trend expected by Dr Bodel. I think the latter is, perhaps, somewhat too optimistic, however.

85. Nevertheless, it seems to me reasonable to assess the plaintiff's general damages on the basis that there is a 20 per cent disability currently in the left forearm to hand, emanating from the wrist. I accept there will be some improvement, both because the plaintiff will adjust to activities which avoid aggravation of the wrist condition and because of improvement over time. It will, however, permanently remain prone to exacerbation.

86. It seems to me that $30,000 is appropriate for general damages. I would attribute $20,000 to the past for the purpose of an interest award. In round figures that results in an additional sum of $1,400. That also allows for the temporary amplification of symptoms during the psychiatric episode.

87. A claim was pressed for unpaid domestic assistance.

88. However, such a claim does not include a mere re-arrangement of domestic chores. There must according to Mason CJ, Toohey and McHugh JJ in Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 be created by the tortfeasor a need for the relevant services to be performed.

89. Brennan J generally agreed with that but qualified it as follows (at 340):

"On the one hand, it can hardly be said that the provision of those services is to be attributed to the need created by the plaintiff's injury when those services would have been provided to the plaintiff, whether or not he or she had a need for them. On the other hand, the rendering of those services in [a domestic] relationship is usually mutual and the injury may well have deprived the service provider of the mutual services which the injured plaintiff would have rendered to her or him. The former consideration tends against inclusion in the award of a sum corresponding to the market cost of providing those services; the latter consideration shows that, if nothing were allowed in respect of the provision of those services, the plaintiff must be made to depend on the self-sacrifice of the care provider to answer some of the needs created by the injury."

90. His Honour continued at 341:

"...it is appropriate to omit from the list of services to be paid for by the defendant some of the time spent or some of the minor services rendered by the care provider to the plaintiff where those services would have been provided in any event as an incident of an antecedent personal relationship between them, provided the plaintiff is able to offer services in return."

91. Deane and Dawson JJ offered, at 344, a similar formulation.

92. Gaudron J addressed the question by rejecting the view that services should not be paid for if they were previously provided, though not as a matter of necessity, and, equally, the view that no need arose for services if already provided.

93. In the present case, the plaintiff needs assistance with heavy work, that is, work one can perform only with two hands. It is not the case that she cannot perform any particular task. She can, but performing all of them is not sustainable in the longer term.

94. There was no direct evidence of the hours of assistance required but, as a matter of impression it would not have exceeded one hour per week. On average it would probably be half that. I would allow $10,000 including interest for the past and a buffer of $3,000 for the future.

95. There is, also, a claim for past wage loss. The plaintiff's pre-accident earnings were $362 per week net. The parties are content to have any past wage loss assessed on this basis. The nett wage loss to date is $63,350 less wages paid between 12 April 1996 and 25 October 1996. That figure appears to be $7,496.10 nett. The nett wage loss is, therefore, $55,853.90. An allowance of some six weeks for loss of earnings due to child birth should also be made. I would, therefore, award $53,681.90.

96. There is ongoing diminution of the plaintiff's earning capacity. She can no longer perform tasks requiring full use of both hands. Fortunately, she is right hand dominant. Unfortunately, that weakness precludes many forms of competitive horse-riding and track work. It prevents mini-lab work for which she has also acquired professional skills.

97. I think the plaintiff has acted reasonably to date in an attempt to mitigate that loss of employment. There would have been some loss of time from earnings due to the birth of her third child, as I have noted, but that was fairly minimal. It seems to me that it is reasonable to assume that within five years the plaintiff will have employment at least equalling in monetary return her pre-accident employment, given the re-training she undertook after her employment with the defendant is concerned. It should also be acknowledged that the defendant has, quite properly, been instrumental in putting that rehabilitative course in train.

98. Nevertheless, the plaintiff remains at a disadvantage in the employment market. It is impossible precisely to calculate the loss that will produce, however, I consider an appropriate buffer would be $40,000 as a discretionary allowance.

99. The Fox v Wood component is $6,672.45 up to 7 June 1999. I do not have an up to date figure.

100. To that date the compensation payments, including the Fox v Wood component, have approximately equalled the wage loss. No award of interest is, therefore, appropriate.

101. There is a claim for out of pocket expenses. To the date of hearing $25,447.97 had been paid. I award that figure.

102. There is a small claim for ongoing medical and pharmaceutical expenses. It is a diminishing necessity. I would allow $2,250 as a buffer against such expenses in the future.

103. The total, subject to any errors or omissions, is as follows:

1. General Damages $30,000.00

Interest [(G.D. for past) x 0.06] $1,400.00

2. Past Wage Loss $53,681.90

3. Out of Pockets $25,447.97

4. Fox v Wood $6,672.45

5. Griffiths v Kerkemeyer - Past $10,000.00

6. Griffiths v Kerkemeyer - Future $3,000.00

7. Future Medicals $2,250.00

8. Loss of Earning Capacity $40,000.00

Total: $172,452.32

104. There will be judgment accordingly. I will hear the parties as to costs.

I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Associate:

Date: 26 August 1999

Counsel for the Plaintiff: Mr R Crowe

Solicitor for the Plaintiff: pappas, j.-attorney

Counsel for the Defendant: Mr E J Gotschalk

Solicitor for the Defendant: Messrs Abbott Tout Harper & Blain

Date of hearing: 19 & 20 July 1999

Date of judgment: 26 August 1999