Harris v Knight [2005] ACTSC 32 (22 April 2005)

Last Updated: 11 May 2005

Harris v Knight [2005] ACTSC 32 (22 April 2005)

DAMAGES - personal injuries - neck and lower back injury - no issue of principle

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638

Griffiths v Kerkemeyer (1977) 139 CLR 161

Fox v Wood (1981) 148 CLR 438

MATTHEW HARRIS v DANIEL JOHN KNIGHT

No. SC 507 of 2003

Judge: Ryan J

Supreme Court of the ACT

Date: 22 April 2005

IN THE SUPREME COURT OF THE )

) No. SC 507 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MATTHEW HARRIS

Plaintiff

AND: DANIEL JOHN KNIGHT

Defendant

ORDER

Judge: Ryan J

Date: 22 April 2005

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $206,443.44.

2. The defendant pay the plaintiff's costs, such costs to be taxed in default of agreement.

IN THE SUPREME COURT OF THE )

) No. SC 507 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MATTHEW HARRIS

Plaintiff

AND: DANIEL JOHN KNIGHT

Defendant

Judge: Ryan J

Date: 22 April 2005

Place: Canberra

REASONS FOR JUDGMENT

1. On 2 May 2001, the plaintiff was the driver of a motor vehicle travelling in a north-westerly direction along King Edward Terrace, Barton in the Australian Capital Territory. At the same time, the defendant was driving a taxi ("the taxi") in a south-easterly direction along Parkes Road West, Barton. At the intersection of Parkes Road West and King Edward Terrace, the taxi entered the intersection in disregard of a "give way" sign and collided with the plaintiff's vehicle.

2. A breach of the defendant's duty to the plaintiff has been admitted and there has been no suggestion of contributory negligence. I am therefore required only to assess damages.

3. As a result of the collision, the plaintiff's vehicle was extensively damaged and written off. The plaintiff felt pain in the middle of his lower back. As well, his right knee was sore and there was soreness of the neck just above the shoulder blades. He also suffered an injury to the right hand but there were no cuts or abrasions. He described himself as feeling generally sore and stiff. Coincidentally, his partner, Ms McDonald, had driven in her own vehicle past the scene of the accident but had not noticed that the plaintiff was involved in it. She was contacted by police on her mobile telephone and returned to the scene. The plaintiff overcame her urgings to go to hospital and she took him home where he watched television before retiring early to bed. From her perception, he was a "bit shocked" and "stunned".

4. The plaintiff suffered pain and discomfort during the night, mainly in the lower back and neck. On the next day, he attended his regular general practitioner, Dr Cox, and reported his symptoms without specifically adverting to his lower back pain. Dr Cox noted, on examination, that the plaintiff's neck hurt and he had interscapular pain, bruising and some reduction of flexion of the right neck and right knee. As to his gait, he had a mild limp.

5. The plaintiff returned on 10 May 2001 to Dr Cox who noted the lower back pain which he had forgotten to mention on the previous visit. Dr Cox also recorded pain radiating down both legs to the ankles but noted that the neck was "fifty percent better". Dr Cox diagnosed "lumbar derangement" and recommended rest. On that and subsequent occasions, Dr Cox provided the plaintiff with certificates authorising his absence from work. Later in May 2001, Dr Cox recommended that the plaintiff be put on light duties for a week. He also referred the plaintiff to Mr Rumore, a physiotherapist.

6. On 31 May 2001, Dr Cox noted that the plaintiff had reported throbbing in the left part of the thigh after working on the previous day and that he had difficulty depressing the clutch on a motor vehicle. The plaintiff was still limping and Dr Cox diagnosed him as suffering from a "disc bulge".

7. On 14 June 2001, Dr Cox noted that, despite almost daily physiotherapy, the plaintiff was still suffering from pain radiating down the back of the leg through to the knee. He recommended a further two weeks off work followed by a graduated return to work. On 28 June 2001, Dr Cox recorded that the plaintiff had been doing exercises prescribed by Mr Rumore and that he was keen to get back to work. Accordingly, Dr Cox authorised a return to work on light duties for half a day at a time with lifting confined to less than 5 kilograms, no bending at all and only occasional sitting.

8. On subsequent visits, Dr Cox noted that the plaintiff's leg and back symptoms were persisting and that he was continuing physiotherapy. By August 2001, Dr Cox resolved to refer the plaintiff to Dr Chandran, a specialist neurosurgeon, and predicted that he was likely to be "off work" for two to three months. After that referral, Dr Chandran made a report on the plaintiff to Dr Cox which included this passage;

`He is doing light duties and is not on any analgesics. There is no past history of similar pain.

Neurologically no deficits were found in the lower limbs and SLR was 90 degrees on the right and 80 on the left.

The CAT Scan shows a moderately large protrusion of the disc at L5/S1 level towards the left with a central bulge as well. The canal is however fairly wide and this is why he does not have that much pain perhaps.

Since there are no neurological deficits and the pain is not all that severe, it is reasonable to wait and see what happens.

Beyond the treatment he has had, we are simply looking at surgical intervention in the form of a disc excision. This has been explained to him and he wishes to wait and see what happens.'

9. After an examination on 2 October 2001 and a further examination on 23 October 2001, Dr Cox noted that the plaintiff was coping satisfactorily with work where his supervisors had been very supportive, but he was still experiencing pain in the buttocks and general soreness after work.

10. By 9 November 2001, Dr Cox was able to note that, although the plaintiff was still experiencing pain in the leg, lower back and buttocks, he would be able to work part-time for 6 hours a day until mid-January 2002. Thereafter, Dr Cox noted, the plaintiff had recurring difficulty in lifting items at waist level and speculated that his problems might be exacerbated by driving forklifts. The symptoms were noted to be worse when bending, but standing and sitting were "OK."

11. During 2002, Dr Cox continued to monitor the plaintiff's graduated return to work and noted that his lower back pain was persisting and the plaintiff was doing lots of exercises. Dr Cox prescribed Voltaren and, by August of that year, noted that the tasks at work which caused the plaintiff most trouble were driving forklifts and pulling and pushing trolleys. By November 2002, the plaintiff indicated that he could work longer hours and increase his maximum lifting to 10 kilograms.

12. Dr Cox's notes disclose that the plaintiff's condition fluctuated during 2003 with some deterioration apparent even on "days off". However, on 9 September 2003 he told Dr Cox that he planned to resume his recreational clay pigeon shooting and was visiting his parents' farm almost every second day.

13. After a visit to Dr Cox on 9 February 2004, the plaintiff reported continuing lower back pain and complained that, on a car trip to "the coast", he had been forced to make frequent stops but had gone fishing and been generally active. Dr Cox prescribed a further course of Voltaren together with Panadeine Forte, presumably for pain relief. On 7 April 2004, Dr Cox referred the plaintiff for an MRI scan but noted that he was "coping at work."

14. In July 2004, Dr Cox noted an improvement in the plaintiff's mood and general condition and recorded that he had been hunting in the mountains and "looked well". The plaintiff apparently attributed part of this improvement to the hiring for use in his workplace of forklifts with better suspensions. However, early in August 2004, Dr Cox recorded that the plaintiff was "not so good", although he noted some improvement later in that month continuing into September.

15. In a written report furnished by Dr Cox to the plaintiff's solicitors on 10 May 2004, these observations are recorded;

`Since May 2002 Mr Harris has made a successful return to mostly full time work with very few restrictions on what he can do. Details are as certified. The return to work was marred by occasional bouts of increased pain as one would expect and by an episode of major depression diagnosed 18/2/03 but increasing for the prior six months according to Mr Harris. Symptoms were insomnia, irritability and loss of interest. A Short Depression Interview confirmed the impression that he was depressed. I noted his younger brother had been depressed. Significant worries were the potential for loss of employment or an unwelcome redundancy and marriage break-up both of which he saw as consequences of his back injury. I treated him with Lovan and CBT. He made good progress and by 18/3/03 I noted that he was sleeping better and seemed a lot brighter. He remains on Lovan.

Currently he seems to have recovered from his depression and his back remains strong enough for him to do full time light duties albeit with quite frequent low back pain and occasional leg pain. I have frequently explained to him the benefits of physical activity in this disorder and I believe he has done his best to be active both at work and when off duty.'

16. By way of expressing an opinion the same report, Dr Cox wrote;

`3 and 4. In my opinion Mr Harris developed a strain/sprain of his neck and a L5/S1 lumbar disc bulge consistent with my findings and his account of a motor vehicle accident on 2 May 2001. He has a past history consistent with lumbar disc bulging so I suspect that the accident aggravated a pre-existing condition. This was complicated by a bout of major depression diagnosed 18/2/2003.

5. In my opinion on the balance of probabilities the injuries are causally related to the motor vehicle accident of 2 May 2001. I have never doubted that Mr Harris has been entirely truthful.

6. In my opinion on the balance of probabilities continues to suffer injuries and disabilities that are causally related to the motor vehicle accident of 2 May 2001.

7. In my opinion Mr Harris will most probably continue as he is now for some years. As bulging discs tend to shrink with time there is the likelihood that the disorder will gradually improve over the next few years. There is the small possibility that Mr Harris will suffer an aggravation that makes the disc bulge to the degree that his spinal nerves are so severely affected that surgery would be necessary. As time passes this seems less and less likely but cannot be ruled out.

... ... ...

9. On the balance of probabilities I do not think that Mr Harris will suffer early onset degenerative change. However late onset degenerative change is common in facet joints associated with injured discs. This is likely to produce relatively moderate and manageable low back pain not requiring surgery.

10. I expect Mr Harris will be able to continue working as currently certified.'

17. In a further report dated 1 April 2005, Dr Cox recounted some of the observations extracted from his clinical notes summarised above and continued;

`Mr Harris last visited me on 29/3/05. He said he had mostly low back pain radiating to the left buttock but no lower. Work had been mostly office work and was "not bad". He regretted that he had not been able to do much shooting or fishing because of his back. He said he "potters at home" mostly. Overall he had gradually improved he thought. He was able to flex 90 degrees producing low back pain and extend 10 degrees also producing low back pain. A Hospital Anxiety and Depression Scale showed moderate anxiety and no depression.'

18. In a report further to that noted at [8] above, Dr Chandran set out, as follows, the history given by the plaintiff, his own observations on examination and his opinion, including a prognosis;

`This man stated that he has continued to work with periodic time off due to aggravation of pain.

He was doing essentially office work most of the time, standing up and walking around, supervising the loading bay and occasionally lifting.

He has a limit of 15 kilograms but usually avoided such lifting.

He described the pain as being constant but aggravated by bending and twisting.

He stated that he has background pain on the visual analogue scale of 4/10, increasing once a week after twisting or bending to 8-9/10. In this scale 0 is no pain and 10 is the worst pain experienced.

At home he can do most things but does them very slowly and has to avoid lifting heavy objects.

He takes occasionally Nurofen as analgesic and this is usually once a week.

He also reported having suffered an injury to his back in 1998 when he lifted a 20 litre drum of liquid and had pain for two days in the back. There had been no further symptoms following that until the injury of May 2001.

EXAMINATION:

On examination, I found weakness of plantar flexion of the left ankle but intact reflexes and sensation in the lower limbs.

Straight leg raising was 80 degrees on the left and 90 on the right.

Lumbar flexion was restricted to 50% of normal range by pain and extension to 75%. There was no tenderness over the lumbar spine.

The MRI Scan that he had of 2/4/04 showed a moderate sized left posterior paracentral L5/S1 disc protrusion compressing the S1 nerve root. The canal was still quite wide. There had been no change from the findings of the scan of July 2001.

The issue of further treatment was discussed.

Mr Harris was happy to carry on with his current regime of periodic analgesics and regular exercises.

He was not keen on any surgical intervention of disc excision unless the symptoms became severe.

OPINION:

Mr Harris stated that he developed symptoms of left sciatica following a car accident on 12/5/2001.

The symptoms have continued and the disc protrusion seen in 2001 on CAT Scan remains unchanged on the recent scan of April, 2004.

Because he has a fairly capacious spinal canal, he has not suffered major symptoms of disability from this protrusion.

However, the protrusion seems to be periodically getting aggravated with activities, causing transient increase in pain and disability.

Mr Harris is happy to continue in this fashion and therefore surgical treatment is not indicated.

It is unlikely that he will have any major deterioration of his symptoms unless further injuries occur.

It is therefore seen that he will continue in this fashion with restriction of activities but working full time and taking care.

Spontaneous deterioration with aggravation of pain therein cannot be ruled out and should that happen then surgical treatment may be considered.

If that were to occur he would require 5 days in hospital and 6 - 8 weeks off work. The chances of relieving his leg symptoms would be 85% by such a procedure.'

19. Dr Owen White, a neurologist who examined the plaintiff at the behest of his solicitors, reported on 5 March 2004;

`Mr Harris has always been a fit man and has not had any significant back problems. Following the motor vehicle accident he has had low back pain with radicular symptoms and has radiology confirming the presence of a disc prolapse. On the balance of probabilities this has occurred as a result of the motor vehicle accident in the absence of any significant contribution from prior injury or work-related activities.

At this stage his back problems preclude him from undertaking full duties as a storeman and I would note that he has no training to undertake any other activities. It is unlikely he will ever have complete recovery and certainly unlikely that he would never [sic] be able to return to any job that involves heavy lifting, repetitive bending or repetitive twisting.

At this stage there is no indication that he requires further therapy beyond continued back strengthening exercises and intervention should he had any further aggravation.

.........

6. On the balance of probabilities his continued restrictions are as a result of the injuries caused by the motor vehicle accident. It would be inappropriate for him to ever consider going back to full duties given the nature of the instability occasioned by injury to the L5/S1 disc.

7. At this stage I would anticipate there will be continued amelioration in his pain provided, he monitors and modifies physical activities. It may take some years for his pain to diminish substantially.'

20. The plaintiff has also been examined by a consultant surgeon, Dr Graeme Griffith, who saw him once in February 2003 and again in March 2004. In a report written after the latter consultation, Dr Griffith concluded;

`Having regard to the fact that the situation is stable structurally, albeit with an ongoing unsatisfactory level of symptoms as described in the prior reports, it is extremely likely that he will remain symptomatic for an indefinite period - he has already done so for some four years: thus early and anything like complete remission must now be considered an unrealistic expectation. If he is unwilling to tolerate these symptoms on a long-term basis, which appears to be an entirely reasonable attitude for him to take, he should seek the opinion of an experienced spinal neurosurgeon. I should be happy to suggest appropriate practitioners should you require this.

It is my opinion that he should not be content with a limited partial discectomy, which may well relieve his sciatica to a significant extent, but will almost certainly not relieve his back pain - the success rate of such surgery is less than one in two. Having regard to the risks of the surgery itself, the risk of perineural fibrosis or arachnoiditis as the most pernicious and serious long-term complications, a simple partial discectomy which is relatively easy surgery for an experienced spinal surgeon is, in my view, an inadequate approach to the problem - because the major part of the disc is left in situ, there is a 5 to 10% chance of recurrent prolapse (which I have observed on a number of occasions as occurring even before the patient has left hospital) and a very high chance of persisting back pain, which is a major feature of your client's symptoms. Accordingly, though technically more difficult, I am of the opinion that a posterior interbody fusion and total discectomy is by far the preferred procedure, definitively dealing with both the disc and with the sciatic element.

The fact that his left S1 nerve root has now been compressed for a protracted period of some years renders it likely that he is suffering from post-traumatic interstitial fibrosis likely, which is untreatable as such scarring within the substance of the nerve root cannot be relieved or removed. This may produce continued dysfunction of the nerve root, though the extent and nature of such dysfunction cannot be predicted with confidence.'

21. As well as undergoing the treatment and examinations recounted above, the plaintiff was examined on 19 August 2002, at the instigation of the defendant, by Dr Nicholas Burke, a consultant occupational physician. In his report, Dr Burke summarised as follows the history which he had obtained from the plaintiff;

`His major concerns are low back pain. He said that the pain is more prominent on his left side and can be associated with some radiation into his left leg with some paraesthesia and numbness. He said that when he retires of an evening, he said that it feels as if his leg "can go to sleep."

The pain in his low back is constant and is exacerbated by any bending or lifting.

His neck pain is intermittent. It is not as severe as his back pain and it is located in his lower cervical region around C7, with radiation into both shoulders. He said that in the past week it has increased in severity and he has taken some non-steroidal anti-inflammatory medications.

Precipitating movements for his pain are sudden neck movements.

Specific aggravating facts for his low back pain are bending, lifting and lying. Walking tends to relief [sic] his pain. Standing for too long is an aggravator. Sitting is not a significant aggravator.

Present Work Status:

He is currently participating in his full-time employment on a restricted basis.

Present Activities:

When questioned, he advised that he is able to drive. He cannot cook or mop the floor. He can wash clothes, although he encounters difficulty in hanging them out. Ironing is a chore he can accomplish as is shopping.

He does not attend to any gardening or lawn mowing activities and when questioned, he advised that he has not attempted these activities since his injury.

Mr Harris explained that his girlfriend attends to the majority of the chores.

He said that he can achieve most activities around his home. However, several activities such as vacuuming and washing the floor produce significant difficulties.

When questioned with regard to his typical daily activities, he advised that he has not been able to participate in his pre-injury sport which was target shooting. He undertakes his exercises at home. He walks occasionally. He said that when attending the cinema, he experiences pain due to the prolonged sitting. Otherwise, he said with regard to his usual activities, he does not do a great deal. He may attend the pub on occasions.'

22. In the light of that history, his own examination and some radiological investigations, Dr Burke arrived at this "Summary and Assessment";

`In summary, Mr Harris is a 35-year-old storeman, who sustained an injury to his back originally on 29 June 2000. This injury resolved without any specific treatment after several days off work.

On 2 May 2001, he was involved in a motor vehicle accident in which a vehicle failed to give way and his vehicle collided with the passenger's side of this vehicle. His vehicle was written off at the time.

He immediately developed pain in his neck and re-developed pain in his low back. The pain in his low back tends to radiate into his left leg and he has experienced numbness and paraesthesia in his left leg.

CT scan demonstrated a disc protrusion at L5/S1 with probable compromise of his left S1 nerve root. An MRI scan has not been performed.

Treatment has been essentially conservative.

He has achieved a return to work, although some restrictions do operate, mainly relating to lifting less than 10kg, no prolonged forklift duties and no repetitive bending.

Mr Harris' attitude to his rehabilitation has been positive and no abnormal illness behaviour or psychological distress was apparent through the interview.

In my view, his condition should continue to improve with time. However, it is likely that he has underlying pre-existing disc degeneration in his lumbar spine and that the motor vehicle accident has resulted in a significant aggravation with development or aggravation of the disc protrusion at L5/S1 with compromise of the left S1 nerve root.'

23. As to the likelihood of the plaintiff's needing to undergo surgery in the future, Dr Burke indicated;

`No further treatment will be required for the pain in Mr Harris' cervical spine.

The pain in his low back is, in my view, most likely related to a disc protrusion. Taking into account that he has achieved a reasonable recovery to this stage, I considered that conservative treatment will be successful in the long term. However, if there is a further aggravation or deterioration in his condition then surgery may be required for his underlying disc lesion.

... ... ...

... it is probable that surgery will not be required in the near future. However, in the longer term, there is a possibly [sic] that surgery will be required, especially if his condition further deteriorates at some stage in the future or if it fails to improve sufficiently.

As stated, Mr Harris had pre-existing disc degeneration in his lumbar spine and he did state that in the past he has had left leg pain. Hence, there is a significant probability that he may require surgery at some stage due to the pre-existing injury in his lumbar spine.'

24. The plaintiff was a credible witness who tended, with commendable stoicism, to understate, if anything, the severity of his symptoms and their effect on his performance of a full range of work and on his recreational and social activities. I am satisfied that the motor vehicle accident in May 2001 has had a significant impact on each of those aspects of his life.

Past out-of-pocket expenses

25. Out-of-pocket expenses have been proved in a gross amount of $7,298.29 being the amount paid by Comcare for past medical, physiotherapy and pharmaceutical expenses plus $65.95 contributed by Medicare to pathology fees. As at 1 September 2004 Comcare incapacity payments amounted to $21,777.39 which will be allowed.

Economic loss

26. The plaintiff claims a further sum for past wages lost based on the contention that, but for the accident, he would have continued to work, and be paid for, overtime with the same frequency as he had achieved before the accident. In his oral evidence, the plaintiff was inclined to estimate his pre-accident rate of overtime at an average of four hours a week. However, Mr McDonogh of Counsel for the defendant has demonstrated by an analysis of the plaintiff's wage records over the calendar year before the accident that his total earnings for overtime for that year, variously calculated at time and a half and double time, was $2,503.88 at an average rate of $48.15 a week. There was evidence that the plaintiff has recently been receiving a higher duties allowance for acting as a foreman or supervisor. The temporary vacancy in that position is to be filled for eight months by a continuing appointment to be made in June 2005. The plaintiff appears to have reasonable prospects of securing that appointment but, if successful, will occupy the higher position for only eight months after which he will revert to his present substantive classification of foreman. Moreover, his present manager, Mr Arthur, gave evidence that, of eleven employees in the plaintiff's section of the workforce at the Joint Houses of Parliament, only three are in substantive managerial positions and that he, Arthur, has achieved only two promotions in his 17 years of employment in the section. In any event, there is nothing to suggest that appointment to one of the substantive supervisory positions to which the plaintiff aspires would normally preclude the appointee from being rostered and receiving remuneration for overtime. Those benefits are denied to the plaintiff because of his inability to perform the full range of duties, including physical work, expected of the smaller group of employees working overtime at any one time. I therefore consider it appropriate to award the plaintiff a component of damages for lost overtime from 2 May 2001 to the present at a rate of $48.00 a week. The same rate of loss can reasonably be assumed to continue into the future until the plaintiff retires at age 65.

27. However, in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 to which I was referred by Mr McDonogh, the High Court pointed out that the assessment of future loss of income involves the evaluation of the loss of the chance which the plaintiff would have had, but for the accident, of receiving the presumptively lost income; see esp. per Deane, Gaudron and McHugh JJ at 642-643. In the present case, it cannot be treated as a near certainty that the plaintiff will continue in his present employment until he retires aged 65. I consider that the loss of the chance of continuing to receive overtime at his pre-accident average rate until retirement can be compensated appropriately by an amount which would have been received until the plaintiff turned 60. Taking into account the impact of that loss on the plaintiff's superannuation entitlement, I shall therefore aware a sum of $40,000.00 for future loss of earnings.

Griffiths v Kerkemeyer

28. I allow the sum of $6,000.00 inclusive of interest on the principle in Griffiths v Kerkemeyer (1977) 139 CLR 161 for assistance which the plaintiff has required from Ms McDonald in the past. At first, Ms McDonald was inclined to estimate at five hours a week the extra time which she had to expend in making up for the plaintiff's reduced capacity to carry out gardening and household tasks. However, under cross-examination, she conceded that a more accurate estimate may be as low as two hours a week. I have adopted that estimate in evaluating the past assistance rendered by Ms McDonald and consider it reasonable to project a continuing need for the same level of assistance on the basis explained at [27] above until the plaintiff would have attained the age of 60. On that basis I shall award $21,000 in respect of the future under this head.

General damages

29. In respect of general damages, I have already noted at [24] above that the injuries sustained in the accident have impinged significantly on the plaintiff's life. He is still a comparatively young man, having been born on 12 March 1967. His injuries have effectively ended his participation in clay pigeon shooting, a sport in which he displayed elite competitive prowess. Mr McDonogh suggested in argument that this activity has not been entirely lost to him because he is still a licensed gun owner and has maintained his membership of a gun club. However, I consider that the whole point of clay target shooting lies in the ability to measure one's skill in organised competition and I have assessed the plaintiff's general damages on the basis that he has, to all intents and purposes, been permanently deprived of this recreation. His participation in, and enjoyment of, hunting, fishing, and recreational farm work have also been significantly diminished. As well, the accident has severely impinged on his sex and social life. He has been forced to maintain a regimen of exercises prescribed by his physiotherapist but that has merely controlled, and not eliminated, his discomfort and disability which are likely to remain at their present levels for the rest of his life. His awareness that severe and recurrent pain and incapacity are unlikely ever to leave him has had an understandable psychological affect which has been mitigated to an extent by recourse to Lovan. Taking all these matters into account I aware $70,000.00 for general damages of which I apportion $25,000.00 to pain, suffering and loss of enjoyment of life to date. I shall allow interest of $2,000.00 on that component.

Future out-of-pocket expenses

30. The plaintiff has claimed $13,517.86 in respect of future medication, general practitioner consultations and physiotherapy over the next ten years. That claim has not been disputed and will be allowed. In addition, the plaintiff has claimed the sum of $9,791.00 for future surgical treatment. As explained at [27] above, the plaintiff's damages under this head have to be assessed in the light of an evaluation of the chance that he will be forced, or elect, to undergo that surgery. On that basis, I consider it appropriate to allow an amount of $6,500.00 by way of a buffer against future surgical expenses.

Fox v Wood

31. A claim has been made of an amount of $6,360.00 by way of damages according to the principle in Fox v Wood (1981) 148 CLR 438. That claim has not been contested on behalf of the defendant and will be allowed.

Conclusion

32. In the result there will be judgment for the plaintiff in the sum of $206,443.44 made up as follows;

Past economic loss
Out-of-pocket expenses	$7,298.29
Comcare incapacity payments	$21,777.39
Lost overtime	$10,000.00	$39,065.68
Interest on past economic loss		$2,000.00
Future economic loss		$40,000.00
Future out-of-pocket expenses		$20,017.86
Fox v Wood		$6,360.00
Griffiths v Kerkemeyer		$27,000.00
General damages		$70,000.00
Interest on past component of general damages	$2,000.00
Total	$206,443.44

33. I shall hear Counsel on the question of costs.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Ryan.

Associate:

Date: 22 April 2005

Counsel for the Plaintiff: Mr S Pilkinton

Solicitor for the Plaintiff: Maliganis Edwards Johnson

Counsel for the Defendant: Mr M A McDonogh

Solicitor for the Defendant: Phillips Fox

Dates of hearing: 18 and 19 April 2005

Date of judgment: 22 April 2005