Jackovceska v Australian Capital Territory & City Group Pty Ltd [2003] ACTSC 67 (19 August 2003)

Last Updated: 2 September 2003

IN THE SUPREME COURT OF THE )

) No SC 414 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: LUBICA JAKOVCESKA

Plaintiff

AND: AUSTRALIAN CAPITAL TERRITORY

Defendant

AND: CITY GROUP PTY LIMITED

ACN: 008 599 899

Third Party

1. C O R R I G E N D U M

Coram: Master

Date: 19 August 2003

Place: Canberra

The Reasons for Judgment of the Master delivered on 19 August 2003 [2003] ACTSC 67 are amended as follows:

Page 4 - paragraph 6 - delete "Counsel for the plaintiff" and substitute "Counsel for the defendant".

Associate to the Master

Dated: 20 August 2003

LUBICA JAKOVCESKA v AUSTRALIAN CAPITAL TERRITORY;

CITY GROUP PTY LIMITED

[2003] ACTSC 67 (19 August 2003)

CATCHWORDS

NEGLIGENCE - personal injury - unsafe system of work - liability to employee of independent contractor - no issue of principle.

DAMAGES - personal injury - cervical spine - previously asymptomatic degeneration - adjustment disorder - no issue of principle.

Rockdale Beef Pty. Ltd. V Carey [2003] NSWCA 132

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

No SC 414 of 2000

Coram: Master Harper

Supreme Court of the ACT

Date: 19 August 2003

IN THE SUPREME COURT OF THE )

) No SC 414 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: LUBICA JAKOVCESKA

Plaintiff

AND: AUSTRALIAN CAPITAL TERRITORY

Defendant

AND: CITY GROUP PTY LIMITED

ACN: 008 599 899

Third Party

ORDER

Coram: Master Harper

Date: 19 August 2003

Place: Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff against the defendant in the sum of $270,300.00.

1. 2. The plaintiff claims damages for personal injury occasioned by an incident at her place of work on 23 November 1998. The plaintiff was employed by the third party, City Group Pty Limited, as a cleaner. One of her responsibilities was to empty rubbish bins on the fourth floor of Building 10 at the Canberra Hospital. The defendant, originally sued as the Australian Capital Territory Health and Community Care Service and subsequently amended to the Australian Capital Territory, was the occupier of the building. The third party was responsible for cleaning and rubbish removal from the building, pursuant to an agreement with the defendant. Located on the fourth floor of the building was a laboratory where testing was carried out on the quality of samples of water from Canberra lakes and rivers. The water was brought to the laboratory in two-litre plastic bottles.

3. The plaintiff's usual practice was to pull the plastic liner upwards and out of each bin, so that the contents of the bins could be emptied onto a trolley. There were about ten or fifteen bins to be emptied. They were conventional polyvinyl domestic garbage bins. Their contents were normally very light. On the occasion in question, the plaintiff pulled the plastic liner from a bin and found that it was unusually heavy. It turned out that the bin had been filled with bottles which had not been emptied after testing, and that the bottles could not be seen because they were hidden below white packing material which was probably polystyrene foam. The plaintiff immediately felt pain to the left elbow and to the neck. She did not immediately seek medical attention. Her supervisor said that it was probably a muscular injury, which she accepted. She worked for a further four days, during which time she developed pain in the middle of the back accompanied by difficulty in breathing. She obtained permission from the supervisor to leave work early, and got her son to make an appointment to see her doctor, Dr Pitcher.

4. The Court had the benefit of oral evidence from Mr Radomir Krsteski, a microbiologist employed by the defendant. He worked at the government analytical laboratories at the time of the plaintiff's injury, and he knew the plaintiff as a fellow member of Canberra's Macedonian community. Immediately after the incident in which the plaintiff was injured, she brought to his attention the bin full of bottles of water. He said that the bins were located at the end of the laboratory benches. He described them as standard plastic forty- or sixty-litre rubbish bins. He realised that another technical officer, Rachel Kennedy, who had been responsible for analysing water samples, had placed full water bottles into the bin after analysis, rather than following the normal procedure of emptying the bottles down a sink before throwing them away. There were sinks available, ten of fifteen metres away from her bench. He and his fellow analysts were subsequently directed to empty bottles before disposing of them.

5. The following week, the plaintiff spoke to him again, and said that she had come across another bin with full bottles in it, which was too heavy for her to empty in the usual way. Mr Krsteski told his superior and spoke to Rachel Kennedy who apologised and said it had slipped her mind. It is not suggested that the plaintiff on that second occasion suffered any further injury.

6. Counsel for the defendant conceded that leaving full water bottles in a rubbish bin in the circumstances amounted to a breach of the duty of care owed to the plaintiff, and counsel for the third party made no submissions in relation to the defendant's liability to the plaintiff, or the third party's liability to the defendant. I was informed that agreement had been reached between the defendant and the third party and that I was not required to adjudicate upon the issues between them.

7. Counsel for the plaintiff submitted that I should find the plaintiff guilty of contributory negligence. She was an experienced cleaner and as a matter of commonsense should have checked the contents of the bin before emptying it. He submitted that it would have been a very simple thing for the plaintiff to remove the packing material, and that if she had done so, she would have seen the bottles which she later discovered were filled with water.

8. It was put to the plaintiff in cross-examination that she had been provided with an instruction by her supervisor to check the contents of bins before emptying them, and to inform the supervisor of any heavy bags so that these could be collected by a "rubbish man". The plaintiff denied this, and the defendant called no evidence of any such instruction. The plaintiff's evidence was that until the incident in question, the bins in the laboratory area had always been light. She had not encountered a similar situation previously. She was carrying out the normal duties of her employment, and there is no evidence that she had been instructed to carry out those duties in any different manner to the manner she had always adopted. A worker is entitled to assume that the employer's system of work will provide reasonable protection, and is not required to stop work to investigate possible risks unless those risks become obvious. This principle applies equally to the relationship between the plaintiff and the defendant: the authorities as to such liability to an employee of a contractor were summarised by Ipp JA in the recent decision of Rockdale Beef Pty. Ltd. v Carey [2003] NSWCA 132.

9. It is in my view unrealistic to suggest that the plaintiff should have been expected, in the absence of any reason to suspect that the contents of the bin were unusually heavy, to check its contents by manually removing the layer of packing material. For all she knew, the bin might have been full of packing material. And even if she had detected bottles below the packing material, it would not necessarily have been apparent on visual inspection that the bottles were full of water. I am satisfied that the plaintiff was not guilty of any act or omission which could reasonably be found to amount to contributory negligence.

10. The plaintiff was born on 26 January 1953, and is fifty years old. She was educated in Macedonia to year eight equivalent level. She married at eighteen, and has three children, the eldest born prior to the migration of the family to Australia in 1973, and the younger two born here. In 1979, the family went back to live in Macedonia, but they returned to Australia in 1982 and have lived here since.

11. The plaintiff commenced work as a cleaner with the third party in 1986. She worked full-time from then until her injury. From 1995, she also worked in a second job as a cleaner with another employer, and by the time of the injury she was working as much as sixty hours per week. She enjoyed her work, and no doubt the income which this brought into the family. She had no relevant medical history, other than a minor incident in June 1998 when she took a week off work because of low back pain. I accept that she made a full recovery and that the June 1998 episode is irrelevant for the purposes of these proceedings.

12. The plaintiff attended Dr Pitcher's surgery on 26 November 1998, three days after her injury. On examination he found that she was in considerable distress. She was tender in the mid-thoracic region of the back, and tender over the left elbow. Dr Pitcher diagnosed minor tearing of muscle and fascia fibres of the upper back muscles, probably the trapezius, as well as derangement of the cervical facet and upper thoracic joints. Her elbow was treated with a cortisone injection and recovered completely in a relatively short time. Dr Pitcher prescribed Celebrex, a non-steroidal anti-inflammatory medication, for the neck and back. He referred her for x-ray of the cervical spine, which showed marked degenerative narrowing of the C5-6 disc space with accompanying osteophytes and corresponding encroachment on both C6 foramina. An x-ray of the thoracic spine showed a minor scoliosis and spurring.

13. He referred the plaintiff for physiotherapy, but this did not improve her symptoms. He recommended that she return to work on light duties, three hours a day, three days a week, in July 1999. She continued to complain of back pain, and he certified her unfit for work. She had seven treatments of cervical spine mobilisation, manipulation of the thoracic spine, heat soft tissue stretches and mobilising exercises between January and March 2000, to which she did not respond. She was referred to Dr David McGrath and Dr Speldewinde, both rehabilitation physicians, between mid-2000 and mid-2001. No reports by those doctors were in evidence.

14. In May 2000, an MRI scan of the cervical spine was carried out. This revealed a small posterior disc bulge at C4-5 and a disc bulge at C6-7 with mild compromise of the left C7 nerve route foramen, and confirmed the x-ray finding at C5-6.

15. Dr Pitcher reported in May 2003 that there had been no appreciable improvement of symptoms since 2001. He agreed that the plaintiff had sustained an aggravation of an underlying cervical spondylosis at the time of her injury. He expressed the opinion at that time that she was unfit for commercial cleaning and manual work but was fit to do her normal household chores. In oral evidence, Dr Pitcher agreed that it was purely speculative as to when, or even whether, the underlying degenerative condition might have become symptomatic. He agreed that heavy manual work would increase the likelihood that symptoms might develop in the future. He also agreed that because of the underlying degeneration, the plaintiff would have been at greater risk of injury in the future than a person with a normal disc, if the injury of November 1998 had not occurred. I found Dr Pitcher's evidence helpful but as he acknowledged, he is a general practitioner and would be inclined to defer to specialist opinion about these questions.

16. Three reports were tendered of Dr Robert Scott, an occupational physician who had examined the plaintiff by arrangement with her solicitors. Dr Scott died before the hearing. He believed that there was a causal relationship between the lifting incident and the plaintiff's symptoms. He did not consider that she was or would become fit to resume duty as a cleaner. He said that she could attempt sedentary work but that bearing in mind her age and her lack of education, skills and training, her prospects of gaining meaningful employment were slight. He thought that she might be assisted by psychological counselling in pain management. He thought that if anything she was slightly worse when he last saw her, in April 2002, than on the two previous occasions.

17. The plaintiff also relied on a report by Dr J. Saboisky, consultant psychiatrist, who had not treated the plaintiff but had assessed her for the purpose of the proceedings. He believed that the plaintiff had a genuine neck problem causing chronic pain, which was the cause of an adjustment disorder with depressed mood. The pain had reduced her capacity to sleep and led to tiredness and irritability. He did not see any possibility that the plaintiff would be able to return to her former work. He thought that her psychological state might be helped by some counselling, but in the absence of adequate pain relief, he thought that the benefits would be limited. Dr Saboisky did not give oral evidence.

18. The plaintiff was assessed at the request of her solicitors by Dr G.G. Griffith, consultant surgeon. Dr Griffith's reports were not tendered in the plaintiff's case. A report of 8 February 2000 was tendered by the defendant. It became apparent that Dr Griffith had prepared a subsequent report but that this had not been served on the defendant, and it was not tendered.

19. Dr Griffith recorded on 8 February 2000 that the plaintiff was "currently still on holiday, and proposes to return to work." This sentence from his report was the subject of some comment, to which I will return. Dr Griffith expressed the view that the plaintiff had underlying degenerative disease of the cervical spine, which was previously asymptomatic but was the subject of acute exacerbation in the incident. He thought that the plaintiff's injuries would resolve completely and that she would get back to normal work. It was most unlikely that she would suffer any major impairment or disability as a result of the progression of the underlying cervical spondylosis, at least in the foreseeable future. Her problem was of muscle spasm, which should resolve if appropriately treated. He thought that the plaintiff should ultimately be able to return to her former duties, and recorded that she had informed him that she had every intention of doing so.

20. I think that I must infer that Dr Griffith's second report would not have assisted the plaintiff's case. I do not think that any more specific inference as to what that report might have contained is available to me.

21. The plaintiff was sent by the solicitors for the defendant in April 2002 to Dr D. Billett, Orthopaedic Surgeon, for opinion. Dr Billett thought that the effects of the soft tissue injuries and of the aggravation which made the degenerative changes symptomatic had by then resolved, and that her continuing symptoms were due solely to underlying degenerative changes. He accepted that she had continuing disabilities, but regarded these as no longer causally related to the November 1998 incident. He thought that she was capable of working in light cleaning duties, light process duties, or as a ward clerk, provided that she could avoid rapid rotation or prolonged flexion of the neck and flexion of the trunk.

22. Dr Billett gave evidence by telephone. He said that if the plaintiff had not suffered the November 1998 injury, having regard to the radiological evidence of degeneration of the cervical spine, she might have developed symptoms with or without a triggering traumatic incident in the future but equally she might have remained symptom-free all her life. There was no correlation between the degeneration and the development of symptoms.

23. Dr Billett was asked about his conclusion that the plaintiff had recovered from the effects of the aggravation which resulted from the November 1998 injury, and that her continuing symptoms were due, not to that injury, but to the underlying constitutional degeneration. He explained that it was generally accepted by orthopaedic surgeons that where a traumatic incident causes pre-existing but asymptomatic degeneration in the neck to become symptomatic, the effects of the aggravation cease completely after approximately a year, and any continuing pain is due entirely to the underlying changes. He acknowledged that there was an opposing view that continuing symptoms might sometimes be causally connected with the injury. He said that there had been no studies done which established either theory but that orthopaedic opinion generally favoured the former theory. He agreed in cross-examination that this was a convention that some of his colleagues accepted, and that he subscribed to. He agreed that if not for the accident, the plaintiff could well have gone on for the rest of her life without any symptoms. However, the changes were massive and symptoms could have been brought on by minor trauma.

24. The defendant also relied on a report by Dr R.D. Lewin, a psychiatrist, who saw the plaintiff in February 2003 for the purpose of a report. He recorded by way of history that the plaintiff was under the care of her general practitioner, Dr Pitcher, whom she saw infrequently. She had no current active program of treatment. She complained of depressive symptoms including intermittent tearfulness, irritability and frustration, accompanied by a degree of lethargy. She did not display these symptoms during the consultation. He nevertheless accepted that she was suffering mild reactive depressive symptoms, and diagnosed an adjustment disorder with depressed mood, which fell short of a major depression. He said that the condition arose as part of the plaintiff's emotional response to her physical injury and disability pattern. It was unlikely that the condition would have developed but for the injury. He did not think that the condition was permanent. He thought it reasonable for the plaintiff to take anti-depressant medication for six to twelve months, and to see her general practitioner every four to six weeks. He thought that from a psychiatric viewpoint, she was fit for work, and would probably be happier if she were at work. Her fitness for work fell for assessment on the basis of her physical rather than her psychological condition.

25. Dr Lewin's view did not differ significantly from that of Dr Saboisky. The latter did not suggest anti-depressant medication but thought that counselling might help her. It should be remembered that neither Dr Saboisky nor Dr Lewin reported to the plaintiff's general practitioner, and neither was involved in her treatment. The general practitioner, Dr Pitcher, has not prescribed anti-depressant medication or counselling, or even referred her to a psychiatrist for a specialist opinion. I am unable in these circumstances, on the basis of an opinion expressed by Dr Lewin to the solicitors for the defendant, to arrive at a finding that the plaintiff is likely to recover from her depression within six to twelve months, nor would it be reasonable for me to assess her damages on the basis that, if she were under Dr Lewin's care, he would prescribe treatment which might lead to a speedier recovery than such treatment as is offered by her treating doctors.

26. Surveillance videotape of the plaintiff in November and December 2002 and April 2003 was tendered on behalf of the defendant. The film was shown to the plaintiff in cross-examination. She was seen at her home, talking on a mobile telephone, lifting and carrying her grandchild, driving a car and shopping at a supermarket. The plaintiff conceded that she had no restriction in driving to the homes of her mother and sisters in Rivett, Pearce and Isaacs (the plaintiff lives at Holder). She also agreed that she was able to go shopping by herself and carry shopping bags if they were not heavy. She appeared able to move her neck in various directions with considerably less restriction than displayed in the witness box, and to extend her left arm without the restriction demonstrated in court. As far as I could tell from the video, the plaintiff gave every appearance of being cheerful and happy. I saw no signs of depression, tearfulness or irritability; nor did I observe any apparent twinges of pain at the extremes of movement of the head or neck or arms, or any movements which suggested that the plaintiff was favouring or protecting any part of her body. In particular, she was seen to extend her left arm fully for the purpose of closing the rear hatch door of her car, at a time when her right arm and hand were free and available for the task. All in all, the impression I gained was of a woman capable of normal and unrestricted physical activity having regard to her age and build.

27. Having had the benefit of viewing the videotape material, I have arrived at the conclusion that at the time it was taken, the plaintiff was capable of a considerably wider range of activity than was apparent from her presentation to medical practitioners and in the witness box. I do not, however, conclude that the plaintiff was deliberately dishonest or that her evidence was knowingly false. Her medical assessments and her examination and cross-examination were, as one would expect, focussed upon her injuries and disabilities. It is human nature to put one's best foot forward in such circumstances. I am prepared to accept that the plaintiff believed her evidence, and the histories provided to the doctors, to be truthful. It is inevitable that during the course of litigation of this nature, a plaintiff will be focused upon such matters to a far greater extent than a person with similar injuries sustained in non-compensable circumstances.

28. The effect of these findings is that I must discount some of the opinions expressed by the medical witnesses, to the extent that they were based upon a history which included a degree of unconscious exaggeration.

29. I accept that the plaintiff suffered a genuine injury to her neck and elbow. The elbow injury resolved quickly, but the neck injury, superimposed upon a cervical spine with asymptomatic degeneration, caused the plaintiff considerable pain over an extended period of time. I accept that the neck pain caused restriction of movement in the neck and left arm, and that these physical symptoms caused an adjustment disorder with depressed mood as diagnosed by Dr Saboisky and Dr Lewin. I think that by November 2002, the physical symptoms had greatly improved: it must follow, to my mind, that the adjustment disorder had lessened proportionately.

30. I am not satisfied that the plaintiff has made a complete recovery. It seems to me likely that her existing level of disability, which I suspect is relatively mild, will continue permanently, causing a relatively mild continuing comparable level of psychological symptomatology.

31. I referred earlier to the plaintiff's holiday trip to Macedonia at the end of 1999. This trip was not mentioned by the plaintiff in her evidence in chief, or by her counsel in opening. The opening was to the effect that the plaintiff attempted to return to work for about six months in 1999 which was unsuccessful, and that she had not worked at all since December 1999. Counsel led evidence from her in chief that at the end of May 1999 she tried to go back to work on light duties, working three hours a day, three days a week, and that she continued this work until just before Christmas 1999. She said that she stopped because she could not bear the pain.

32. It emerged in cross-examination that shortly after ceasing work, the plaintiff went on holiday to Macedonia, returning some time prior to seeing Dr Griffith on 8 February 2000. Dr Griffith recorded that she was on that date still on holiday, and that she proposed to return to work. He thought that she should ultimately be able to return to her former duties, and said that she informed him that she had every intention of doing so. The plaintiff admitted telling Dr Griffith that she was still on holiday but denied telling him that she had any intention of returning to work.

33. The plaintiff's workers' compensation payments ceased from July 1999. I infer that she took some action to enforce her rights after her return from Macedonia at the beginning of 2000, it being common ground that she received a redemption amount of $45,000 on 18 May 2000. The plaintiff did not formally resign from her employment until 26 November 2002. It appears that the plaintiff attended the third party's offices and delivered the resignation letter. She was motivated to tender her resignation formally by reason of issues concerned with superannuation and total incapacity payments. Counsel for the third party submitted that the likelihood was that the plaintiff stopped work in December 1999 because of her intention to travel to Macedonia on holiday, and that she voluntarily remained out of the workforce by choice. Counsel for the plaintiff submits that the evidence on this aspect is consistent with the plaintiff having taken recreational leave at the end of 1999, proposing, or at least hoping, to return to work, and that she did not improve and found herself unable to do so. This would be consistent with the opinion expressed by Dr Griffith, who inferentially accepted that the plaintiff was unable to return to her former duties when he saw her in February 2000, although he thought that her disability would resolve completely and that she should ultimately be able to return to normal work.

34. In compensating the plaintiff for future losses, I must take account of the possibility that the plaintiff might, in the absence of the December 1998 injury, have suffered some other traumatic incident causing her underlying degenerative spondylosis to become symptomatic, or indeed that symptoms might have developed in the absence of any specific trauma. As against that, I accept the possibility that she might have remained asymptomatic for the rest of her life. If she had continued as a cleaner to age sixty, the nature of that work might have been more likely to expose her to trauma, although any such trauma would have occurred in circumstances entitling her at least to workers' compensation benefits and perhaps to damages under the general law.

35. Taking all of these considerations into account, I arrive at a figure for general damages for pain and suffering and loss of enjoyment of life of $40,000.00, of which I apportion $25,000.00 to the past and $15,000.00 to the future. The past component should be weighted more heavily to the period immediately following the accident and less so to the years since. I allow interest on the past component of $3,500.00.

36. Treatment and other expenses up to the date of trial were agreed at $4,090.06. To allow for the period between hearing and judgment, I award $4,300.00. No claim was made for interest on that component. I allow $1,500.00 for future treatment, on the basis that the plaintiff has some continuing level of disability and may need to see her general practitioner for the prescription of medication from time to time in the future. No claim for future treatment had been made in the statement of particulars: I am satisfied that this allowance is justified on the evidence and that the defendant has suffered no prejudice by the late notification of the claim.

37. Having regard to my findings about the level of the plaintiff's disability, at least since November 2002, it is not appropriate for me to attempt to calculate a figure to compensate the plaintiff for past loss of earning capacity on a mathematical basis. I think that at some time after February 2000, the plaintiff probably became capable of resuming work on light duties, and that by probably the middle of 2002, she was capable of working at perhaps 75% of her pre-injury capacity. It seems to me that a proper figure to compensate the plaintiff for the impairment of her earning capacity from the date of the injury to the date of judgment is $100,000.00. I allow $12,000.00 interest on that amount.

38. In respect of loss of earning capacity for the future, the plaintiff is now fifty and claims a loss to age sixty. I take account of the ordinary vicissitudes of life, and also the specific matters discussed above. I allow $100,000.00 for loss of earning capacity for the future.

39. No specific claim had been made prior to the hearing for an amount equivalent to the tax paid by the plaintiff on periodic payments of workers' compensation. On the plaintiff's application, and with the consent of the defendant and the third party, I granted leave to include such a claim notwithstanding that it had not been adverted to in the statement of particulars. The amount has been calculated, without criticism by the defendant or third party, at $2,159.30. The plaintiff has been out of pocket to that extent since mid-1999, and justice dictates that interest should be allowed on it at commercial rates. I allow $3,000.00 inclusive of interest, in respect of the Fox v Wood component.

40. A claim is made for the commercial value of tasks performed about the house by members of the plaintiff's family, supported by the oral evidence of her son Vase Jakovceski. Counsel for the defendant drew attention to the fact that the plaintiff had been working up to sixty hours a week before her injury, leaving little time for her to spend on housework, and that any allowance should be modest in the extreme.

41. I am satisfied that the plaintiff, despite the hours she was working, was contributing to a significant extent to the household tasks before her injury, and that, at least in the months immediately following that injury, she was restricted to such an extent that the family were required to take over a number of those tasks. I accept that the pattern has continued, but on a diminishing basis. Having viewed the video material, I am not satisfied that any such need continued beyond mid-2002. I allow $4,000.00 including interest for the value of gratuitous services in the past, and I make no award for the future.

42. A claim is made for loss of superannuation benefits. There is no disagreement between the parties as to the manner in which this should be calculated, once one has arrived at figures for loss of earning capacity for the past and future. I allow $6,800.00 for loss of superannuation benefits in respect of earnings up to judgment, plus interest of $1,300.00. In respect of loss of superannuation benefits for the future, I allow $7,500.00.

43. The total of the individual components is as follows:

General Damages $ 40,000.00

Interest thereon 3,500.00

Out-of-pocket expenses

- past 4,300.00

- future 1,500.00

Loss of earning capacity

- past 100,000.00

- interest thereon 12,000.00

- future 100,000.00

Fox v Wood 3,000.00

Gratuitous services 4,000.00

Loss of superannuation benefits

- past 6,800.00

- interest thereon 1,300.00

- future 7,500.00

283,900.00

44. As against this total, it should be recalled that the plaintiff received an amount of $45,000.00 in May 2000. Using the same interest rates as I have applied to calculate interest on the various components of the plaintiff's damages (see Practice Direction No. 2 of 2001) I calculate that the plaintiff should give credit of $13,600.00 by way of notional interest on that amount.

45. There will accordingly be judgment for the plaintiff in the sum of $270,300.00, which on reflection I regard as an amount proportionate to the injuries suffered by the plaintiff and their consequences. I will hear the parties on costs and any other orders that may be appropriate