Stone v Dunlop [2005] ACTSC 1 (28 January 2005)

Last Updated: 31 January 2005

RICHARD GEORGE STONE v RUSSELL DUNLOP

[2005] ACTSC 1 (28 January 2005)

DAMAGES - personal injury - injuries to both shoulders - SLAP tears requiring surgery - no issue of principle

DAMAGES - personal injury - plaintiff self-employed through company structure - fluctuating profitability of company - assessment of damages for loss of earning capacity

Husher v Husher (1999) 197 CLR 138

Assessment of Damages for Personal Injury and Death, Luntz, 4^th Edition, Butterworths 2002, paragraph 5.5.1 (p336)

No. SC 574 of 2002

Judge: Master Harper

Supreme Court of the ACT

Date: 28 January 2005

IN THE SUPREME COURT OF THE )

) No. SC 574 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: RICHARD GEORGE STONE

Plaintiff

AND: RUSSELL DUNLOP

Defendant

ORDER

Judge: Master Harper

Date: 28 January 2005

Place: Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff in the sum of $311,840.00.

1. This is an action for damages for personal injury arising out of a motor vehicle collision. Liability is admitted. The plaintiff is a plumber. He was born on 13 February 1956, and is now 48. He has been married for twenty-seven years and has three sons. The eldest is married but the younger boys are still at home, on a small property out of Michelago south of Canberra. For almost all his working life, the plaintiff has, though a partnership and corporate structures, run his own plumbing business. His elder sons have completed apprenticeships with him.

2. On 22 October 2000, he and his wife were driving home from Sydney. A vehicle travelling in the opposite direction on the Sutton Road crossed to its incorrect side of the road, and the two vehicles collided. When the plaintiff's vehicle came to rest, he tried to lift himself up, and found that he could not move. He was in what he described as incredible pain across the upper body. An ambulance arrived at the scene but was unable to get the plaintiff out of the vehicle. An ambulance officer applied a neck brace. In due course the fire brigade came, and cut the side of the car to get the plaintiff out. He had severe pain was in his upper body and neck and some pain in the right hip. He was taken by ambulance to Queanbeyan Hospital where he spent three or four hours. He and his family were then driven home by a friend, the fire control officer for Yarrowlumla Shire Emergency Service. The plaintiff was himself a member of the local rural bush fire brigade.

The injuries and the medical evidence

3. He saw his general practitioner, Dr L R Quach, the next day. He was very stiff for at least a week, particularly in the neck, shoulders and upper arms, and had developed a bruise on the right hip. He improved considerably over the following two weeks, and was able to get back to work. He found it very difficult to cope with working above his head, and he also had difficulty lifting copper piping and other materials above his head. These activities caused pain in the neck, arms and shoulders.

4. On 23 October 2000, Dr Quach diagnosed the plaintiff as suffering from a whiplash injury to the neck, and referred him for an x-ray of the cervical spine. This was normal. Dr Quach reports that after the plaintiff returned to work, over the ensuing six months he developed low back pain and shoulder pain. Dr Quach arranged an x-ray of the lumbar spine in March 2001, which showed degenerative changes, particularly at L5-S1, and some changes in the facet joints in the lower lumbar spine. The plaintiff also complained of worsening pain in the left shoulder and upper arm. In May 2001, Dr Quach referred the plaintiff for x-rays of the thoracic spine and left shoulder. Minor degenerative changes were found in the thoracic spine, but no other abnormality. However, there were irregularities in the left shoulder and further assessment with ultrasound was recommended. Dr Quach arranged this a few days later, and a large tear in the left supraspinatus tendon was detected. Dr Quach referred the plaintiff to Dr Gareth Long, orthopaedic surgeon.

5. Dr Long saw the plaintiff on 30 May 2001. He injected the left shoulder with steroid, and referred the plaintiff for physiotherapy. The injection provided immediate relief, but this lasted for only a few days. Dr Long reviewed the plaintiff in July. He referred him for MRI arthrograms of both shoulders. These conformed a full thickness tear of the supraspinatus tendon of the left shoulder, and also revealed an abnormality in the antero-inferior glenoid labrum. The arthrogram of the right shoulder showed a partial thickness tear of the supraspinatus tendon and a partial thickness tear of the subscapularis tendon with subluxation of the bicep tendon. Dr Long found the findings a little confusing having regard to the plaintiff's presentation, and recommended arthroscopic assessment. On 4 October, Dr Long carried out arthroscopy of the left shoulder, which revealed a chondral lesion of the glenoid with a small Bankart lesion, and a type two SLAP lesion. Dr Long debrided both areas. He noted significant roughening of the undersurface of the acromion and the rotator cuff. The plaintiff had a week or two off work after the arthroscope.

6. On 29 November 2001, Dr Long operated to repair the SLAP lesion and the chondral lesion. The plaintiff spent four days in hospital, and was discharged with his arm in a body sling, strapped to his side. His left shoulder was extremely painful, and he felt as though he had been "hit by a truck". He found it difficult even to move. The procedure left the plaintiff with a seven-centimetre scar on the front of the body, running into his armpit at about a forty-five degree angle.

7. When the plaintiff got home from hospital, he could do virtually nothing for himself. He was unable to have a shower for more than a week, and his wife washed him with a sponge. After this, he needed assistance getting in and out of the shower, and assistance getting out of bed and getting dressed. He spent about three months with his arm in the sling.

8. The operation to the left shoulder was successful. By mid-January 2002, the shoulder was pain-free. It was four to five months after the operation before the plaintiff felt sufficiently confident to shower on his own. He had a period of intensive physiotherapy after the sling was removed. It was about six months before he was able to get back to work. He was able to return to work in a limited capacity, visiting building sites and supervising employees. He was unable to drive, and his wife drove him.

9. In April 2002, the plaintiff saw Dr Long again. He had developed new intermittent pain in the left shoulder. He was continuing to complain of neck pain, which Dr Long saw as outside his area of specialty. He was concerned that the plaintiff might have some neck injury which had not been detected. He referred the plaintiff to Dr John Fuller, a neurosurgeon. Meanwhile he continued to see the plaintiff. In August 2002, the plaintiff complained of pain in both shoulders after heavy work such as chopping wood or wielding a crowbar. Dr Long injected both of the shoulders with local anaesthetic. The injection to the right shoulder provided relief for about four weeks, but the effect on the left shoulder wore off very quickly. Dr Long was concerned that there might have been a failure of the fixation of the biceps anchor following the earlier surgery. He recommended surgery to the right shoulder in the form of an arthroscopic subacromial decompression, which would have an eighty to ninety percent chance of success. This was carried out in October 2002 under general anaesthetic. The right shoulder was extremely painful after this procedure, and has not subsequently improved.

10. Dr Fuller saw the plaintiff in October 2002 in relation to the symptoms in his cervical spine. He referred him for an MRI scan, which revealed minor disc bulges at C5-6 and C6-7. The plaintiff complained of pins and needles in the left arm, which Dr Fuller thought was more likely due to carpal tunnel syndrome than any pathology in the cervical spine. He suggested that the plaintiff see an occupational physician such as Dr Garth Eaton for advice as to conservative treatment, no operative treatment being indicated.

11. In mid-November 2002, the plaintiff felt a sudden sharp pain in his right shoulder on throwing a stick for his dog to retrieve. He saw Dr Long a week later, by which time the pain had improved to about half of its immediate post-incident level. Dr Long advised against sudden jerking movements but offered no treatment apart from home physiotherapy. He certified the plaintiff as unfit for any overhead work for six months. Thereafter, the plaintiff's evidence was that his left shoulder slowly improved and his right shoulder slowly got worse. In May 2003, he was given a steroid injection in the right shoulder, which was effective for about six weeks. Since then, the plaintiff's treatment has been limited to medication in the form of Vioxx, Panadeine Forte, Tramal and Aspirin. He has also taken Lipotol to counter stomach irritation which is apparently a side-effect of the Vioxx.

12. Dr Long has advised that if the right shoulder symptoms continue, as the plaintiff says they have, it would be appropriate for him to undergo further surgery in the form of a tenodesis, which would have a ninety percent change of a good to excellent outcome. The plaintiff has not yet accepted this option, partly because of his experience of the amount of pain associated with surgery and the recovery period, and partly because, he says, he has been unable to afford to take the time off work. The plaintiff's evidence is that if he could afford to have the operation, he would do so.

13. Dr Long's opinion is that the plaintiff is now fit to work as a plumber, but that he is only able to do so at about sixty to seventy percent of his pre-accident capacity.

14. The plaintiff's evidence is that his injuries have interfered greatly with his ability to work on his property, and with his leisure activities. He has been unable to return to golf since the accident. He has trouble swimming. He has difficulty with catching and throwing. He needs help from his family with the heavier work around the property. His sleep has been broken and disrupted by pain since the accident.

15. The plaintiff gave evidence of incidents prior to the car accident which had caused him to seek medical attention. His memory of most of these was revived by reference to notes of consultations produced by Dr Quach. He had a couple of days off work in the mid-1980s because of pain in the low back after lifting one of his sons. He had no recollection of seeing Dr Quach in 1989 for a painful left shoulder, for which Voltaren was prescribed. He had only the vaguest recollection of seeing Dr Quach during 1990 with complaints of low back pain, and could not remember needing any time off work for either of those conditions.

16. In 1992, he slipped and hurt his back, and mentioned this to Dr Quach at a consultation six weeks later. Again, he had no clear memory of the incident by the time of trial. He did recall seeing Dr Quach in 1993 complaining of low backache with referred pain down the left leg. His recollection was that he had no time off work except for the medical appointment and an attendance for an x-ray. He did not recall seeing Dr Quach in January 1994 complaining of pain in the left shoulder, when Voltaren was again prescribed. He had a vague recollection of seeing Dr Quach in 1996 with neck pain, and in 1999 with headache. In March 2000 he complained to Dr Quach of pain and stiffness in the neck and left shoulder, but did not really recall this. He did recall that in May 2000, he stood on the lid of a manhole which slipped, causing him to fall into the pit below, about five feet deep, injuring his left thigh and both shoulders. He was shaken up by this incident but did not take any time off work.

17. In July 2000 he was injured in the course of loading a horse into a horse float, and Dr Quach referred him for x-rays of the shoulders and left ribs: these detected no abnormality. As far as he could recall, this incident did not require him to take any time off work.

18. Dr Quach's opinion is that the plaintiff had made a full recovery from all of the pre-accident incidents described by the time of the 2000 motor accident, and that there are no pre-existing conditions which continue to affect his working capacity. Dr Long's opinion is similar. He described the shoulder pain referred to in Dr Quach's notes before the car accident as self-limiting, and expressed the firm opinion that the car accident was the probable cause of the plaintiff's bilateral shoulder disability.

19. There were a number of medical reports in evidence by non-treating practitioners. The late Dr R J Scott, occupational physician, saw the plaintiff in October 2002. He regarded the plaintiff as then fit for work but in a limited fashion. He thought it more probable than not that his disabilities were caused by the motor vehicle collision.

20. Dr M M Giblin, orthopaedic surgeon, saw the plaintiff on one occasion, in March 2003. He found the injuries and disabilities consistent with the accident described. The plaintiff was at that time unfit for work which involved repetitive bending, heavy lifting or heavy use of the arms. He would require help on his farm once his children left home. Dr Giblin was informed of the pre-accident history, and agreed that the continuing shoulder symptoms were due to the motor vehicle accident rather than any prior incident or condition. The fact that the last instance of complaints of back pain prior to the car accident had been in 1993 was suggestive that the car accident was the cause of his continuing low back discomfort.

21. The plaintiff was referred in August 2003 to Dr R Brooder, neurologist. Dr Brooder said that the long-term prognosis remained guarded. He considered that the plaintiff would remain subject indefinitely to a cervical and shoulder girdle pain syndrome associated with ongoing functional disability. He thought it more probable than not that the disabilities were caused by the motor accident. It followed that the plaintiff's impairment of working capacity was a direct result of that accident. The right shoulder symptoms appeared to be deteriorating, and Dr Brooder thought it likely that the plaintiff would eventually come to further surgery to the right shoulder. Provided with the history of pre-motor vehicle accident injuries and complaints, Dr Brooder regarded it as significant that each of the episodes was self-limiting and had responded to treatment.

22. The plaintiff's solicitors also referred him to Dr Garth Eaton, occupational physician, whom I mentioned previously. Dr Eaton also said that the prognosis was guarded. He was satisfied that more probably than not the plaintiff's disabilities were a result of the motor accident. He thought that he would be permanently restricted in carrying out heavy physical duties, including heavy lifting, extreme bending, carrying out work above shoulder level, and working in trenches and other confined spaces. He did not regard any of the incidents prior to the motor accident as contributing to the present disabilities.

23. The plaintiff was referred on behalf of the defendant to Dr Robert D Smith, consultant surgeon, and Dr D Billett, orthopaedic surgeon. No report by Dr Billett was served or tendered in evidence, and I draw the available inference that his evidence would not have assisted the defendant's case. Dr Smith saw the plaintiff twice, in August 2002 and June 2003. He noted that on both occasions the plaintiff's hands were stained and callused, from which he concluded that the plaintiff was "obviously doing a lot of work." He was "by no means convinced that the matter of 22 October 2000 would have been a primary cause justifying left shoulder surgery". Dr Smith did not elaborate upon this somewhat cryptic observation, and was not called to give oral evidence. He thought that the plaintiff's prognosis was excellent and that he was quite fit for work. He commented that "obviously the claimant [had] left shoulder problems for years before the motor vehicle accident" but provided no basis, either by way of history obtained from the plaintiff, or information provided by the defendant's insurer, for this comment. His opinion was that the motor vehicle accident "would at most have been a temporary aggravation only to his intrinsic degenerative shoulder changes." He thought that the plaintiff had recovered very well from the motor vehicle, his hands supporting that conclusively. He thought that there would be no change in the plaintiff's condition, and that no further treatment or surgery would be required. His concluding advice was that "no further treatment in any respect should be carried out at the expense of the insurance company."

24. Dr Smith's opinion is at odds with all of the other medical evidence. He is apparently a general surgeon, and I would, in relation to the plaintiff's injuries, tend to prefer the opinion of an orthopaedic surgeon. That preference is reinforced by the defendant's decision not to call or rely upon the opinion of Dr Billett who is a specialist orthopaedic surgeon. Where Dr Smith's opinion conflicts with that of the treating orthopaedic surgeon, Dr Long, I prefer the latter.

25. The plaintiff relies on a report by Ms Georgia Tayler, clinical psychologist, who saw the plaintiff on three occasions in October and November 2002, on referral from his solicitors. She took a lengthy history, but did not provide any treatment. She concluded that the plaintiff suffered from significant psychological distress as a result of the accident, though not at such a level as to suggest a mental health diagnosis. She concluded from the history that he was probably drinking excessively. The plaintiff gave no evidence about this and was not cross-examined about it, and I am unable to find any causal connection between the plaintiff's excessive drinking and the injuries; it may be that his drinking pattern is little changed since before the accident. Ms Tayler thought that the plaintiff would benefit from appropriate professional input addressing his stress, pain and alcohol use. She thought that regular sessions over a period of six to twelve months would be necessary to yield lasting benefits. There is no evidence that the plaintiff has had any psychological treatment or that he intends to seek any once the case is over.

Economic Loss

26. Much of the time of the hearing was occupied by cross-examination of the plaintiff in relation to the claim for loss of earning capacity. Evidence was also given by the plaintiff's accountant and by an accountant qualified on behalf of the defendant. The plaintiff's evidence is that the accident prevented him from working at all for some periods, and quite apart from that has restricted him from the heavy work he had done all his life as a plumber, limiting him to light and supervisory work.

27. The plaintiff's case was based upon particulars set out in a further amended statement of particulars dated 12 August 2003. It was stated that the plaintiff was employed by Stone Bros (NSW) Pty Limited, a company carrying out domestic and commercial plumbing. The plaintiff's working capacity had been severely restricted by his injuries. The company had engaged additional employees and subcontractors to carry out heavy plumbing work which the plaintiff would otherwise have done. The cost of doing so was set out as follows:

2001 Jim White 3 weeks $1,950.00

Subcontract plumber Lincoln Ramsay July-September 2001 $4,257.00

Foreman Cec Shannon 22 August 2001-May 2002 - wages $26,190.00

-Superannuation $1,980.00

-Workers' Compensation $2,357.00

-Long Service Leave $261.00

$36,995.00

28. Particulars were set out of a claim that the company, had it not been for the plaintiff's injuries, would have been able to engage in more remunerative heavy commercial plumbing contract work, and that because of the plaintiff's injuries, the company had to "downsize" its business. At the commencement of the hearing, counsel for the plaintiff indicated that this aspect of the claim would not be pursued.

29. Particulars were given of a claim for future economic loss based upon the plaintiff's reduced working capacity. It was also said that but for the accident the plaintiff would have worked until age 65, but following the accident will now retire at 55. Additionally, a claim was made for six months loss of income associated with the proposed surgery to the right shoulder. It was further claimed that the company would be required to pay increased wages and overheads by reason of the plaintiff's inability to carry out his previous work. Particulars were also given of a future claim in relation to the larger contract jobs previously mentioned which was similarly not pursued on hearing.

30. Until September 1999, the plaintiff's business was operated as a partnership between himself and his wife. In September 1999, Stone Bros (NSW) Pty Limited was incorporated, with the plaintiff the sole director. The shares in the company were owned equally by the plaintiff and his wife. The company conducted the business from then, employing Mr and Mrs Stone. It was wound up as insolvent in June 2003. A few days later, a new company, Stone Bros (Australia) Pty Limited was incorporated, with Mrs Stone as sole director. This company has run the business since then, employing Mr and Mrs Stone as before. It is clear from the plaintiff's evidence that he controls the company, as he controlled the earlier company. Mrs Stone does some secretarial and bookkeeping work, spending on her estimate closer to ten than twenty hours a week, but, no doubt with a view to tax effectiveness, they are paid equal salaries.

31. The earlier company's tax returns disclose a loss for 1999-2000 of $5,716.00; a profit for 2000-2001 of $15,300.00; and a profit for 2001-2002 of $52,271.00. No figures are available for 2002-2003. According to figures prepared by the accountant for the new company, it had made a profit for the period 1 July 2003 to 31 January 2004 of $22,182.00. These figures were after payment of wages and salaries, motor vehicle expenses and other expenses generally. The business is run from the plaintiff's home and I accept his evidence that the expenses of the business include a number of items which would be in the category of personal expenditure for most taxpayers.

32. The accountant qualified on behalf of the defendant, Mr R V Mizia, a chartered accountant of some forty years' experience and presently a consultant with a Sydney firm, examined the tax returns and other documentation produced by the plaintiff. Mr Mizia concluded that whilst there had been an increase in wages paid by the company in 2001 and 2002, this had led to increases in profit such that the company had made no loss. If one ignored the corporate façade and treated the plaintiff and his plumbing business as one entity, the figures did not justify a finding that the entity had suffered any loss since the plaintiff's motor accident. This was subject to a possible net loss of about $2,600.00 during a period of eleven weeks from March to May 2001, a period when the plaintiff himself was paid a lesser sum by way of wages. Otherwise, the profitability of the entity had increased over time. Mr Mizia was asked in cross-examination whether he agreed that the plaintiff had lost a chance or opportunity to increase profits by reason of his injuries. His answer was that it was very difficult for him as an accountant to say; the figures tended to prove that the profitability was there and did not provide any evidence of any loss which might have resulted from the accident.

33. Mr William McKell, a Canberra accountant, has been the accountant for the plaintiff's business since 2002. He provided written comments on Mr Mizia's report, and gave oral evidence. He made a calculation of the plaintiff's past economic loss by calculating the cost of employing an additional tradesman. That is, he assumed that the business had employed an additional tradesman to replace the plaintiff's lost capacity. In that fashion, he arrived at a figure of some $33,000.00 for past economic loss, and he undertook a projection of future economic loss on a similar basis. He made no allowance for the increased profitability of the business during the years following the accident. He agreed that his approach was an arbitrary one, and he also agreed that the increased profitability had resulted in considerably increased remuneration for Mrs Stone.

34. There was no evidence or report available from the plaintiff's pre-2002 accountants, and the plaintiff himself was unable to give an intelligible explanation for the fluctuating figures over the years. He is a plumber and not an accountant, and he conceded that although he keys in figures on his computer using a MYOB program, he has no training in accounting or bookkeeping. It is clear from his evidence that there were regularly long delays in reconciling bank statements with the company's records, and in keying in data from primary documentation. I am satisfied that the plaintiff has extremely limited skills in reading and understanding balance sheets, profit-and-loss accounts and financial records generally. He was cross-examined at great length about the financial history and financial records of his business. I am satisfied that he made a genuine effort to give evidence about these matters honestly and openly, but I gained the impression that much of the time he did not really understand the questions, and I found his answers of little assistance.

35. To quote from the leading Australian text on the subject, Assessment of Damages for Personal Injury and Death, Luntz, 4^th Edition, Butterworths 2002, paragraph 5.5.1 (p336):

Where someone is self-employed, or conducts a business through a company or partnership, ascertainment of the loss sustained as a result of injury to that person often presents considerable factual difficulty. Records of earnings are not always maintained in accordance with best accounting practices; annual income tax returns in previous years, if available, frequently show variations from year to year; rates of expansion are not easily predicted; losses could be due to a general economic downturn . . . Sometimes, notwithstanding the plaintiff's absence through injury, profits of an established business are not less than in previous years and it is impossible to say what difference, if any, the plaintiff's presence would have made . . . The court has to do the best it can in such circumstances to measure the loss that is due to the injury.

This case is a classic illustration of the difficulties adverted to in that passage.

36. The High Court in Husher v Husher (1999) 197 CLR 138 endorsed the principle that where a plaintiff exercises his or her earning capacity through a corporate or partnership structure with a view to reducing the impact of taxation, damages should be assessed on the basis of the full value of the plaintiff's earning capacity, and not restricted to an amount calculated by reference to the plaintiff's taxable income. The principle was more readily applicable in Husher, where the plaintiff was in partnership with his wife but was in practical terms a sole tradesman, with no employees. The position in the present case is complicated by the fact that the business employed, from time to time, people in the capacity of plumbers, apprentices and tradesmen. Nevertheless, it is clear that the plaintiff was the principal of the business enterprise, responsible for bringing in the work, undertaking the bulk of the physical work, and supervising work done by the employees. There were times when the only employees were the plaintiff's older two sons. For a period, the plaintiff's brother-in-law, himself between jobs, was taken on as a labourer. At these times, the business was very much within the family. At other times, unrelated employees were taken on. Nevertheless, it seems to me that the business was small enough, and the plaintiff's role within it of sufficient significance, for the Husher principle to be applicable, at least to the extent that in assessing the plaintiff's earning capacity the Court is not limited to an analysis of his income as emerging from his personal tax returns.

37. I should interpolate that evidence was given by Mrs Stone; her brother Mr Graham Tanner (the temporary labourer just mentioned); Mr Cec Shannon, a plumber employed in the business for about nine months from about August 2001; and Mr J S Gluck, a builder for whom the business regularly undertook subcontract work. None of those witnesses was challenged in cross-examination about the plaintiff's disabilities and the effect of the motor accident upon him. I accept their evidence about those matters, and I accept the plaintiff's evidence. Indeed, I found the plaintiff somewhat understated in his evidence about levels of pain and the physical and psychological effects of his injuries.

38. Notwithstanding the increase in profitability of the old company, now in liquidation, and the new company for the first seven months of its first year, I am satisfied that the plaintiff has suffered a considerable impairment of his working and earning capacity. It should be added that there is no evidence about the profitability of the old company for the 2002-2003 financial year, though one must assume from the fact that it was wound up in insolvency that the year was a very poor one.

39. It is clear that, in a perfectly proper arrangement designed to minimise liability for income tax, the plaintiff had arranged the affairs of his business in such a way that part of what would otherwise have been his earnings were paid to his wife by way of salary and, in a good year, dividend, and other benefits were received by the family, for example in relation to motor vehicles. Whilst it is difficult to arrive at a figure on a mathematical basis , it seems to me reasonable and indeed conservative to assess the plaintiff as having had, at the time of the motor accident, a capacity to earn $600.00 per week after tax, and I propose to adopt that figure in calculating his earning capacity, without making any inflationary adjustment to the date of judgment.

40. The plaintiff is still capable of undertaking much of the work of a plumber, but he cannot work above shoulder level, and he is unable to lift heavy weights. He should avoid the heavier work. As opposed to this, he is capable of the lighter work, and of supervising other staff and running the business generally. It seems to me reasonable to assess him as having lost twenty-five percent of his earning capacity, which I value at $150.00 net per week.

41. Because of his injuries and earlier surgery, there have been periods since the accident when he has been unable to work at all. I allow a total of 30 weeks for those periods. It is just on 220 weeks since the accident. I allow 30 weeks at $600.00 per week plus 190 weeks at $150.00 per week, a total of $46,500.00 by way of past economic loss. That figure attracts interest which ought to be spread relatively evenly over the period, and which I allow at $8,500.00.

42. In calculating a figure representing the impairment of the plaintiff's earning capacity for the future, I adopt the figure of $150.00 per week, and I accept the plaintiff's evidence that it was his intention to work until age 65. However, having regard to his pre-accident history of sporadic low back and shoulder pain, and generally to the heavy work required of a plumber, it seems to me unlikely that he would have been able to work to that age in any event, at least at his pre-accident level. I accept, nevertheless, that the effect of his injuries is that he is now likely to have to retire earlier than would have been the case in the absence of the motor accident. Whilst recognising the artificiality of seeking to place precise future dates on these events, I propose to calculate a figure on the basis that the plaintiff would, but for the accident, have retired at 62 and will now retire at 58. This means that he is entitled to compensation on the basis of his twenty-five percent loss of earning capacity from judgment to age 58, and that he is entitled to compensation for total loss of earning capacity for those last four years.

43. The plaintiff will turn 49 next month. The multiplier for nine years, adopting a three percent interest rate and making no allowance for mortality, is 412. The multiplier for thirteen years is 563. Using those figures as a guide, and reducing the totals arrived at by the customary 15 percent for the vicissitudes of life, and by a further modest amount to allow for mortality in the multipliers, I allow $125,000.00 for loss of earning capacity for the future.

44. In relation to past expenses, the parties are in general agreement, with the exception of three items. As to chemist expenses, I am satisfied that the plaintiff must by now have incurred expenses of at least $1,000.00 and I allow that amount. I am satisfied that the travel expenses are made out as claimed in the sum of $3,750.00. In relation to the new mattress, I am satisfied that the primary motivation for its purchase was the advice of Dr Quach and that it related to the alleviation of the plaintiff's discomfort. At the same time, the plaintiff already had a perfectly good mattress which is still in the house and being used by one of the children and some allowance must be made for that. I allow $1,200.00 towards the mattress. I also acknowledge that the plaintiff will have incurred some further expense in the months since the hearing for general practitioner attendances. I allow a total of $23,250.00 for past treatment and similar expenses. I recognise that some $13,680 has already been paid by the defendant's insurer and the Health Insurance Commission, and that the travel expenses are calculated on a formula which includes depreciation, a loss which will not be realised until the vehicle is sold. I propose to allow interest on $8,000.00 of the expenses, and to treat that amount as spread fairly evenly over the period since the accident though with a weighting towards the earlier part of the period. I allow $3,500.00 for interest on the past expenses.

45. The allowance for future treatment expenses must include something for the likelihood, short of a certainty, that the plaintiff will decide to have the further shoulder surgery recommended by Dr Long. If he does decide to have it, he will probably have it sooner rather than later, but he may put it off and may never have it. I think it unlikely that he will have any psychological counselling and I am not persuaded that I should make any allowance in that regard. Regardless of whether he has further surgery, he will need to see his general practitioner regularly in the future for monitoring and prescription of medication. Taking account of these imponderables, it seems to me that a fair allowance for future expenses is $12,500.00.

46. The plaintiff's claim for the past Griffiths v Kerkemeyer component in the sum of $13,090.00 is not seriously contested by the defendant, and I allow that amount plus interest of $2,500.00. I also allow $4,000.00 for the future, which takes account of the same imponderables as the claim for future treatment expenses.

47. By way of general damages for pain and suffering and loss of enjoyment of life, I take account of the fact that this has been a serious injury which has had a very significant impact upon every aspect of the plaintiff's life. His activities will be restricted permanently, and he will probably have pain at varying levels in his shoulders for the rest of his life. I suspect that his stoic presentation in the witness box masks the extent of the effect of these disabilities on him. It seems to me that a reasonable award for general damages is $70,000.00. I apportion $35,000.00 of that to the past, which attracts interest of $3,000.00.

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

General damages $70,000.00

Interest thereon $3,000.00

Past economic loss $46,500.00

Interest thereon $8,500.00

Future economic loss $125,000.00

Past expenses $23,250.00

Interest thereon $3,500.00

Future expenses $12,500.00

Griffiths v Kerkemeyer - past $13,090.00

Interest thereon $2,500.00

Griffiths v Kerkemeyer - future $4,000.00

Total $311,840.00

49. That amount seems to me to represent an adequate reflection of the effect of the injuries upon the plaintiff. There will be judgment for the plaintiff for $311,840.00. I shall hear the parties in relation to costs.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 28 January 2005

Counsel for the plaintiff: Mr R J Mildren

Solicitor for the plaintiff: Pamela Coward & Associates

Counsel for the defendant: Mr J A Ringrose

Solicitor for the defendant: Hunt & Hunt

Date of hearing: 12, 13, 14 April 2004

Date of judgment: 28 January 2005