Vulin v Cox [2004] ACTSC 90 (17 September 2004)

Last Updated: 17 September 2004

Vulin v Cox [2004] ACTSC 90 (16 September 2004)

No. 335 SC of 2002

Judge: Allsop J

Supreme Court of the ACT

Date: 16 September 2004

IN THE SUPREME COURT OF THE )

) No.335 SC of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MIROSLAVA DOBROSLAVA VULIN

Plaintiff

AND: JAMES MILTON COX

Defendant

ORDER

Judge: ALLSOP J

Date: 16 SEPTEMBER 2004

Place: Canberra

THE COURT ORDERS THAT:

1. the plaintiff bring in, at 2.15 tomorrow afternoon, a minute of judgment reflecting my reasons, incorporating any necessary adjustment as to interest.

2. the proceedings stand over to 2.15 pm 17 September 2004 for the making of final orders and for any argument as to costs.

1. This is an assessment of damages. On 9 June 2000, the plaintiff, then 26, was at the wheel of her car stationary turning right when her car was hit in the rear by another vehicle at some speed. The plaintiff had her child in the back seat. The car was pushed forward significantly. The plaintiff described the effect of the accident in the witness box as "pretty bad".

2. She suffered from a degree of shock and was driven home by a family relation. The next day she saw Dr Al Naser. On that day, she apparently complained to Dr Al Naser of right shoulder pain, right neck pain and right knee pain. Dr Al Naser identified a full range of movement, but with some tenderness and he concluded that she had suffered a soft tissue injury. Dr Al Naser was not the plaintiff's usual treating general practitioner.

3. About a week later the plaintiff saw her usual general practitioner, Dr Bills. Records of Dr Bills indicate that on 16 June the plaintiff complained of right shoulder and back pain to the middle of the back, paresthesia in the right arm, forearm and hand, weakness in the right hand and an inability to turn knobs, though on examination the doctor could find no neurological deficit and her reflexes were normal.

4. It is of some importance in the case that on this occasion, but 7 days after the accident, the plaintiff complained of paresthesia in her right arm and forearm and hand and weakness in her right hand. At the time of the accident the plaintiff was not working, she had ceased working as a hairdresser some months earlier at which time she had worked at a salon called Impressionists.

5. The plaintiff qualified as a hairdresser in 1995 and had worked as such after that date. Relevantly she had worked for a Ms O'Leary for some time at Impressionists. Ms O'Leary gave evidence and described the plaintiff generally as a competent and skilled hairdresser with a good facility with clients and a good personality with the clients.

6. After the accident, the plaintiff sought to continue her career as a hairdresser. She entered an arrangement with the then owners of a salon at Cook with a view to buying the salon. The arrangement did not work out, not entirely for reasons associated with the accident, indeed significant largely for reasons not associated with the accident; but it is relevant to note that there were a number of days in the 2 month period in relation to the activity at Cook which were lost because of pain. The parties are agreed in relation to that loss of work and earning in the past that the sum I mentioned in court at the end of the hearing of $750 should stand as the amount of lost earnings in that regard.

7. In about October 2000, the plaintiff then commenced working at a salon in Civic called Cataldo's. This was and is a well-known hairdressing salon in Canberra and according to the evidence of both the plaintiff and Ms O'Leary it might be seen as the or a leading hairdressing salon in the city.

8. The plaintiff worked at Cataldo's from October 2000 until August 2002 when she left work to prepare for the delivery of her second child, who was born in December 2002. During the course of her work at Cataldo's the plaintiff gave evidence that she suffered pain and discomfort in her shoulders, neck in particular as well as her arm and she also indicated that she suffered from headaches.

9. The particular activities involved in hairdressing which caused her difficulty included the lifting of blow drying equipment above the shoulder, the taking of fixed and less than entirely natural positions during haircutting and the regular turning of the head to ensure that the plaintiff could see what was happening about her.

10. By reason of these difficulties the plaintiff said that she, in mid-2001, took off 1 day per fortnight and later 2 days per fortnight to enable her to recover from the effects of working a full period during the day for 4 days or 5 days straight.

11. There is a dispute in the evidence as to whether the plaintiff informed those who ran Cataldo's of her condition. The defendant called Mr Aldo Cataldo, one of the Cataldo brothers who runs the salon. Mr Aldo Cataldo is an accountant who was in effect the business manager of the salon who also from time to time worked on the front desk. He said that he was unaware of the plaintiff's complaints and, as he understood it, she took the time off for family reasons. The plaintiff was adamant that those at Cataldo's knew of her difficulties, although she made it clear that she did not emphasise in any way her difficulties for fear of jeopardising her employment.

12. I will deal with the plaintiff's evidence generally shortly. Mr Wilson who appeared for the defendant did not submit that the plaintiff was in any way untruthful before me. I do not think it is necessary to resolve with any precision the possible inconsistency between Mr Aldo Cataldo and the plaintiff. There were others at the salon, that is, other managers, and at least one other brother of the Cataldo family.

13. Looking at the matter in a common-sense way, I think it unlikely that the plaintiff overly stressed any difficulty she was having with her employers of the nature of a neck injury. That is consistent with what the observations made in a number of medical reports by the examining doctors, that the plaintiff did not present as a particularly complaining subject.

14. The parties are agreed as to the loss of earnings in the period up to August 2002 at Cataldo's and the sum, by reference to the wage records at Cataldo's, is agreed at $4,661. When added to the $750 to which I have referred, brings the agreed economic loss up to August 2002, to $5,411 to which there will need to be added an element of interest.

15. It is appropriate now to deal with the evidence of the plaintiff. As I indicated earlier, Mr Wilson did not make any submission that I should not accept the plaintiff's evidence as truthful. He did say, however, that I should be careful about taking all the plaintiff's evidence at face value. There was no basis for Mr Wilson to put to me that I should not accept the plaintiff's evidence as truthful, and that explains the approach he took.

16. I accept the plaintiff's evidence as to her general pain and symptoms, and it is sufficient at this point to say that I largely accept the plaintiff's evidence. The reservation in that evidence will become apparent in due course. It is not a reservation as to credit, it is a reservation as to the general placement of the plaintiff's evidence in the totality of the evidence in assessing her future.

17. In summary, the plaintiff's evidence was that she has suffered pain in the neck, shoulder and arm, with numbness in the hands and especially the right arm, as well as headaches, and this has occurred regularly since the accident. She attempted to get on with her life, but found it necessary to reduce her working time at Cataldo's, in order, as I said, to give her three days in which to recover from four days of work.

18. She said that she suffered from niggling lower back pain, prior to the accident. That became, on the evidence, of some real concern late in the pregnancy of her second child in 2002. However, apart from a degree of lower back pain, the plaintiff said that she had no symptoms whatsoever of the kind that she suffered immediately after the accident in June 2000. I should add, at this point, that there was some evidence of some degree of degenerative condition in her C5/6 area but I will return to that when I deal with the medical evidence.

19. As I said earlier, the symptoms of which she complained consistently began with her complaints to Dr Al Naser and Dr Bills, virtually immediately after the accident. Her ability to undertake the physical activity of going to the gym, doing gardening and other activity involving the use of the arms and the upper body, at least without aggravating pain, became and is, to a degree, restricted.

20. Her ability to work, on her evidence, in the occupation for which she has been trained and which, on the evidence, she enjoys, has been, to a degree, on her evidence, impaired. As I said earlier, that impairment is significantly because of the need to use articles such as blow-dryers and the need to raise the arms above shoulder and to move and hold positions not entirely natural.

21. The plaintiff left Cataldo's in August 2002, to prepare to have her second child, which she did later in the year, in December. She, in all likelihood, would have remained away from work for a period of about six months in any event. She did not return to Cataldo's, she gave evidence that she was reluctant to go back with the pain that she was suffering. She did attempt to find employment and by November 2003, had taken up part-time work at Impressionists. She had been looking for work for some time, prior to then.

22. The work at Impressionists was most Saturdays, as well as teaching of apprentices on Tuesday nights. Ms O'Leary, proprietor, described her as unreliable, but I took that expression to be a description of the plaintiff missing days because of the complaints as to pain. Ms O'Leary was otherwise anxious to see the plaintiff working with or for her. She indicated that from her observation of the plaintiff prior to the accident and after the accident, that her capacity, in particular her speed and ability to work for periods of time had been affected. Ms O'Leary said that she made allowances for the plaintiff in ways that she had not made known to the plaintiff herself. As I have said Ms O'Leary indicated that there was a reduction in speed, dexterity and stamina in the way the plaintiff undertook her tasks as a hairdresser.

23. Looking at the period after her return or likely return to the workforce after the birth of her second child, I think it is appropriate to assess the damages in that period from about October or November onwards. She had been looking for work and could not find it.

24. It was not clear on the evidence that that inability was necessarily related to her difficulties although it may be that she would have been able to go back to Cataldo's perhaps earlier than she began work at Impressionists. In all the circumstances I think it is appropriate to look at a 10 month period up to today to examine her past economic loss.

25. The amended statement of particulars in this respect claimed an incapacity to work 20 hours per week which is about 3 days a week. If the plaintiff had not been injured and she had returned to Cataldo's at about the time she was looking for work prior to starting at Impressionists her rates as disclosed by the wage records in 2002 indicated the obtaining of about $100 net per day or $300 net for 3 days.

26. Looking at that for a period of 10 months and using $1,300 per month, that comes to approximately $13,000 to which there would need to be added interest. This sum may have been higher if she had worked under commission arrangements that were described by Ms O'Leary and these sums may have been higher if she had worked more overtime than she had previously done so, remembering that the 2000 to 2002 figures at Cataldo's were undertaken with the impairment described by the plaintiff.

27. Whilst there is that prospect of possibly higher remuneration I think on balance the sum should be left at that sum of $13,000 because not only is there the possibility of higher rates but there is also the possibility of less time being worked given the immediately pressing family commitments of a recently-arrived second child.

28. In all the circumstances for the period up to judgment, the sum of $13,000 should be added to the $5,411, which is agreed as the past economic loss to which a sum of $18,411, there will need to be added interest. At this point before going on to further consideration of damage it is appropriate to go to the medical evidence.

29. The defendant's primary case was that as a result of the accident the plaintiff suffered soft tissue injury for which she would have recovered within about 2 years and substantially has recovered. This submission rested on the acceptance of the evidence of Drs Stephenson and Andrews.

30. Dr Stevenson only saw the plaintiff once on 22 April 2004. The doctor was briefed with all relevant material and he was of the following view,:

"It is improbable that this lady suffered any traumatic injury to the cervical spine. Such is possible in whiplash-associated disorder grade 3, but is an extremely uncommon phenomenon. Disc degeneration is common in the general population, and is predominantly genetic in origin: 70% of the disposition to premature cervical degenerative disease is genetically determined. There is extensive literature on MRI imagining after whiplash. This is reviewed by Ferrari, The Whiplash Encyclopaedia, Facts and Myths of Whiplash, (Aspen Publishers, 1999). CT scan and MRI imaging studies show abnormalities are no more common in whiplash patients than in healthy subjects: `It is erroneous to conclude that MRI abnormalities common in the general population are responsible for symptoms'."

31. Dr Stevenson then stated the following:

"There is no plausible basis for the proposition that the lady suffers neuropathic pain. This is an unfalsifiable, untestable hypothesis, which is not congruent with the known epidemiology. She had had tension related symptoms in the cervical spine and earlier had non-specific strain."

32. As to the likely prognosis, Dr Stevenson said:

"This lady has had a whiplash-associated disorder grade 1, with no abnormality in movement when first seen. She has been considerably over-investigated, and over treated. Prognosis of non-specific cervical strain is now well established, both from 50 years of experimental studies on whiplash collisions, and from studies outside the medico-legal context in Eastern Europe, Greece and Germany. The natural history is healing in an average of three days, and a maximum of three weeks. Inappropriate investigation and medicalisation can cause amplification of non-specific symptomology and interference with the naturally benign spontaneous prognosis. I agree with Dr Andrews that this lady's mild soft tissue strain has, of course, long healed."

33. Dr Andrews saw the plaintiff in 2002, with the benefit of the CT scan which had been undertaken in December 2000. In his report of July 2002, he said:

"On examination, there is a good range of neck movement, there is no tenderness over the facet joints, straight leg raising is 80° and neurological examination is quite normal. I have reviewed x-rays of the cervical spine taken on 20 June 2000 which was satisfactory. The CT scan of the cervical spine on 18/12/2000 is as reported. She had no problems with her neck prior to the accident. There have been no other injuries.

I felt that this was a soft tissue injury of the neck which should slowly resolve over time. There was no clinical evidence of facet joint, nerve root or disc disease in the cervical region."

34. An MRI was undertaken in January 2004. Dr Andrews was provided with this and saw the plaintiff again in February 2004. In his final report of July 2004, Dr Andrews says the following, in particular by reference to dealing with Dr Newcombe's report, dated 31 May 2004:

"I think he is over-interpreting the changes on the MRI scan that he ordered on 9 January 2004. I agree that there are some very small disc problems there at C4/5 and 5/6 which are not causing any significant neural involvement, and I think the prolapsed disc at C4/5 is midline and very small, not likely to be inducing any problems. The disc lesion at C5/6 is broad based and not very marked.

I think it is improbable that these two discs are causing much in the way of significant neck problems."

35. To a significant degree, these doctors' views were based on a conclusion that there was no nerve root involvement by way of tension or compression. Neither could see any objective evidence of such on the CT and MRI scans. Indeed, all the doctors agreed that there was, from the CT scan or the MRI, no objective evidence of this nerve root tension or compression.

36. Dr Andrews was cross-examined, Dr Stevenson was not. Dr Andrews was a knowledgeable, experienced doctor whose views were expressed, if I may say so, somewhat adamantly, though that is not said as to any criticism of him, nor is it reflective of any observation on his credit. He was a man of strong, and if I may use the expression, crisp views.

37. Against this evidence were the views of Drs Newcombe, Griffith and Scott. Dr Newcombe was cross-examined on the telephone. His reports reflect what might be seen to be the most serious or gravest as to the prognosis. Dr Newcombe's penultimate report of 4 February 2004 stated the following:

"I could find no signs. The plain X-rays showed some loss of lordosis and minor osteophytic lipping at C5/6 level. An MRI scan has now been done and this shows a mild small focal disc protrusion at C4/5 with contact of the cord and a further broad-based disc herniation at C5/6. I think that the latter probably corresponds with her pain better. When I saw her again on 21^st January, pain extended from the neck downward to the arms as far as the hands and there was a suggestion of mild decrease in grip in the right hand."

38. By May 2004, Dr Newcombe's views had become more serious. In his report of 31 May 2004, he stated the following:

"There is a significant risk, probably more than 50%, that the pain and disability level will increase in the future. If this happens she may wish to consider further treatment, including a further MRI scan and consideration for surgical treatment. At this stage, I do not think there is clear indication for surgery. One, however, is likely to develop."

39. Dr Newcombe, as I have said, was cross-examined on the telephone. He too appeared, to a degree, to have a certain adamant quality to his views. Once again, that is not said as a personal criticism of the doctor or to reflect upon his credit.

40. Dr Griffith gave evidence by way of report. He said, on page 5 of his report of 15 September 2003, the following, without the benefit of the MRI:

"It is likely, on the balance of probabilities that the cervical disc lesion (which has not been subjected to further radiology) is related to trauma rather than idiopathic degenerative changes for the reasons already indicated. The remaining conditions appear to be causally related to the index accident.

...

If she continues to experience significant pain at the level now evident, there are profound implications for her capacity longer term. Her current attempt to perform her previous activities in the workplace have been compromised by her recent pregnancy and necessity to look after her small children. However, even if allowance is made for this it is unlikely that she would be able to return to full time activities in the workplace, unless and until her pain syndrome is more effectively controlled."

41. Dr Scott was originally retained by the defendant. He saw the plaintiff in January 2001, that is about 6 months after the accident and after whatever acute trauma there was subsided. His views were as follows, as expressed in his report of 23 January under the heading Prognosis:

"The prognosis is uncertain at this point in time. My diagnosis is one of an acute soft tissue injury or whiplash to the cervical spine together with features suggestive of cervical disc lesion causing bilateral upper limb radiculopathy. The patient's condition has not stabilised at this point of time."

42. Dr Scott provided another report on 19 January 2004 with the benefit of the MRI. At page 5 of his report of 19 January 2004 Dr Scott said the following:

"I believe the accident has resulted in ongoing impairment with regards to her work activities. It should be noted that she has been out of work because of her second pregnancy but she did not return in October, 2003.

She would find difficulty in working with her arms abducted for any length of time as is a common requirement for her job as a hairdresser.

... The prognosis is uncertain in view of the radiological changes which do show evidence of focal prolapses at C4/5 and C5/6 but it can be stated that there has been no overall improvement with the treatment given to date.

Worsening symptoms would require a re-evaluation of the management program and in particular if she developed any symptoms of upper or lower limb radiculopathy ..."

43. Dr Scott also said earlier in this report at page 4 that the plaintiff,

"continues to exhibit recurring symptoms of intermittent cervical nerve root irritation together with persistent or recurring headache and neck stiffness."

44. All this medical evidence must be viewed in the light of the facts of the complaints of the plaintiff and her symptoms as recounted to the various doctors whom she saw and to me in her evidence. On the basis that I largely accept her recounting of her symptoms it is plain that the plaintiff suffered none of the problems she has been suffering from and complaining of from immediately after the accident.

45. The defendant's case was that Dr Scott's views as to the nerve root irritation should be rejected in favour of the conclusions of Drs Stevenson and Andrews. However that leaves the accepted recitation of complaints by way of symptoms conformable with more than a resolved soft tissue injury.

46. The defendant's case was that the plaintiff had failed to discharge the onus of proof about this and that I could conclude or be comforted by the likely proposition that this was somehow related to either a degenerative condition pre-existing or some use or strain-related condition unrelated to the accident.

47. With respect to Mr Wilson's submissions and with respect to Drs Stevenson and Andrews, looking at the totality of the evidence, I am satisfied on the balance of probabilities that the plaintiff is suffering from something more than the soft tissue injury and there may well be some irritation of the kind identified by Dr Scott.

48. That is not to say, however, that I would necessarily conclude that the damages should be assessed by reference to a completely pessimistic prognosis. I think, looking at all of the medical evidence including Drs Stevenson and Andrews, there is room for real debate given the lack of objective radiological evidence as to interference and nerve root tension or compression with what the future will hold for the plaintiff.

49. The plaintiff's work patterns in 2003/2004 have not reflected her work patterns of the years with Cataldo's. Notwithstanding that, taking her evidence as a whole, I did not understand her to be saying that the pain or symptoms had deteriorated. They do not seem to have yet improved and the onset of approaching litigation and its resolution may, together with some evidence in the doctors' reports of a mild depression in relation to her position, have played their part. I do not say that in any way critically of the plaintiff, rather it is only a recognition of the humanity of the frustration that she no doubt, to a degree, has been suffering as a result of an injury through no fault of her own.

50. The fact is the plaintiff had no symptoms before the accident of the kind that she has disclosed to doctors and to me. She has complained of neck, shoulder, arm numbness and headaches. There is a bulge in the C5/6 area which Dr Andrews indicated was consistent with the accident, and there was a herniation by 2004 at C5/6. As I said, on the balance of probabilities, I am prepared to accept that her continuing symptoms are related to the accident.

51. I now return to the damages. On the plaintiff's evidence she has continuing pain after 4 years. As I said, whilst I have in effect found contrary to Dr Andrews and Dr Stevenson that there is still a continuing problem causally related to the accident, their opinions and more particularly the opinion of Dr Andrews are and is not entirely irrelevant. They and it assist and assists in illuminating what might be said to be a less gloomy prognosis with the assistance of the evidence of the MRI.

52. It is undoubted, and Mr Parker who appeared for the plaintiff accepted, that the plaintiff will adjust. She is a young lady who has attempted to get on with her life in the past and will do so in the future. She was able to work 4 days a week at Cataldo's between 2000 and 2002. The symptoms she suffers from are not such as to debilitate her to a point where she cannot work.

53. Mr Parker submitted and Mr Wilson agreed that I should not approach the assessment of future economic loss mathematically. It is a global sum by way of a buffer to deal with future loss of earnings and the lost and impaired capacity to work.

54. Mr Parker submitted that whilst I should approach the matter in the way that I have just identified I was to be assisted in a framework of analysis by looking at Ms O'Leary's evidence about what experienced, competent hair stylists in her salon earn. Ms O'Leary described the manner of doing business in her salon. It may or may not be reflective of salons generally but it was a sensible commercial arrangement in an occupation such as this.

55. The experienced hair stylists were divided into two categories, employees and commission based sub-contractors. She had one commission worker at her salon. The gist of her evidence was that an experienced, competent and skilled hairstylist with a good personality who could build up a loyal body of customers could be employed on a commission basis, retaining approximately 40% of what he or she earned out of which GST would be paid to Ms O'Leary.

56. On Ms O'Leary's evidence it was possible for such a person, skilled and experienced and hard working to earn something in the order of $1,000 to $1,100 net per week on commission. Mr Parker indicated that just as a guide if one took one of those days and discounted on 3% tables for 15 years, a sum in the order of $145,000 would be produced and if a 15% discount for vicissitudes was taken one could see a sum in the order of $120,000 plus.

57. Mr Wilson said, with some force, that what had been happening at Cataldo's was a better guide. There at 2002 rates the plaintiff was earning something in the order of $13.82 per hour gross, leading to with overtime and extras and the like something in the order from the wage records of $100 per day net. If one takes $100 per day at 15 years at 3% one gets to a little over $60,000. As I have said, both counsel indicated that I should not deal with this mathematically, but those are the sorts of parameters that one might consider in this case.

58. Mr Wilson sought to persuade me of a significantly lower figure in the order of $25-30,000. This was based on the proposition that I should look at the plaintiff's evidence with some scepticism as to what she is able to do. I think in all the circumstances, I will, as I have indicated a little earlier set to one side the 2003/2004 period after the birth of the second child with the approach of litigation. And once again for the avoidance of doubt I do not do so out of a view as to the credit of the plaintiff. I think given her evidence and the lack of any clear identification of worsening of the pain and deterioration of her condition, the getting on with her life that she exhibited at Cataldo's in 2000 to 2002, at a time when she perhaps should have been resting on Dr Andrew's views, is a better indication of what can be done.

59. Mr Parker said that I should approach the matter on the basis that the plaintiff will never again work as a hairdresser, manager or supervisor of a salon; that may be a slightly inaccurate summary of his submission but nonetheless is the essence of it.

60. On all the medical evidence I think, with respect, that that is probably putting it too highly though I do think that the plaintiff faces a real risk of a lack of a satisfactory resolution of her symptoms. Ms O'Leary's commission figures would lead to an economic buffer in the order of that identified by Mr Parker.

61. I think there is reason to think that there could be some resolution of the plaintiff's condition, though as I said earlier, she faces a real risk that there will be continuing difficulties.

62. I think a buffer in the order of at least a full day's work and another half to two-thirds of a day would be an appropriate way to view the future. This is not a precise identification based on wage rates, but taking the period of 2000/2002 as a guide, I think a framework of analysis of some such period the future is reasonable. However, how one identifies a sum using such a framework of analysis is neither precise nor exact, given that hypothesis of what would have been the position and what will be the position are both involved.

63. I think, in all the circumstances, taking into account prior wage rates, the possibility of higher commission remuneration, the possibility, illuminated by some of the medical evidence, of resolution, though the real risk of some impairment, the ability to work, though not at the moment, in the field that she trained for, using the day to day-and-a-half to a day-and-two-thirds and all the other evidence, the sum in the order of $75,000 is appropriate as that buffer.

64. As to general damages and pain and suffering and loss of amenity of life, the evidence, which I accept, is more than niggling pain for four years. There is some evidence in the medical reports of a degree of depression, but nothing was made of it by either side, and as I said, I think it is no more than to be expected of the frustration that this kind of position would place one in. Thus, I do not think that the general pain and suffering and loss of amenity is likely to be affected by any psychological difficulties.

65. There is impairment to gardening and sporting activities and the like. One must accept some prospect of resolution, as I have said, but looking at the plaintiff and looking at her history, and I think she, if I may use this expression to her credit, that she will get on with things and with her life. The parties agree on a 50-50 split before and after judgment, and I think, in all the circumstances, a sum of $12,000 is appropriate.

66. This leaves damages in accordance with the authority in Griffiths v Kerkemeyer. There was some evidence of assistance from mother and mother-in-law. Mr Parker accepted that it was a nominal amount in the circumstances, Mr Wilson said the case for Griffiths v Kerkemeyer damages have not been made out. I agree with Mr Parker on the evidence that the sum, in my view, should be nominal.

67. No particular evidence was led as to the amount. I think, in the circumstances of the evidence, much of what has occurred and is likely to occur is to be characterised as a rearrangement of family roles and in all the circumstances, I think a sum of $1,500 is adequate.

68. As to future medical expenses, there is evidence of a pain management course which should be undertaken. Some of the doctors expressed the view that this pain management course should be undertaken, I think that would be wise. The parties otherwise said that a global sum should be awarded, taking into account the evidence before me as to the cost of the pain management course and the real risk of continued need for medication into the future for some period, by taking into account the real prospect that must exist of some resolution, I think a sum in the order of $7,500 is more than adequate.

69. In summary, in my view, the damages should be assessed on the following basis:

$2,814. 80 Past medicals upon which there is no interest

$18,411 Past economic loss to which interest will need to be added

$75,000 Future economic loss

$7,500 Future medical

$12,000 General damages

$1,500 Griffiths v Kerkemeyer.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice

Associate:

Date: 17 September 2004

Counsel for the Plaintiff: Mr F G Parker

Solicitor for the Plaintiff: Baker, Deane & Nutt

Counsel for the Defendant: Mr D Wilson

Solicitor for the Defendant: Phillips Fox

Date of hearing: 13 & 14 September 2004

Date of judgment: 16 September 2004