Heywood v Miller [2005] ACTSC 4 (28 January 2005)

Last Updated: 31 January 2005

ELIZABETH HEYWOOD v WAYNE MILLER

[2005] ACTSC 4 (28 January 2005)

NEGLIGENCE - personal injury - collision between motor vehicle and pedestrian at service station - contributory negligence of pedestrian - no issue of principle

DAMAGES - personal injury - fractured ankle - early failure to diagnose - incomplete union - no issue of principle

Civil Law (Wrongs) Act 2002, s 102

Workers Compensation Act 1951, ss 21A(3), 22

Andrikis v Nominal Defendant [2004] ACTSC 43 (unreported, 11 June 2004)

No. SC 835 of 2001

Judge: Master Harper

Supreme Court of the ACT

Date: 28 January 2005

IN THE SUPREME COURT OF THE )

) No. SC 835 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ELIZABETH HEYWOOD

Plaintiff

AND: WAYNE MILLER

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 $142,008.55

1. This is a claim for damages for personal injury arising out of a motor vehicle accident. The accident happened at the Shell Service Station, Charnwood, at about 6.30 am on Friday 6 July 2001. Both the plaintiff and the defendant were on their way to work, and they both stopped at the service station, the plaintiff for petrol and the defendant for a carton of milk and a newspaper. The defendant had completed his purchases and was about to leave. The plaintiff was walking from her car to pay for her petrol. A collision occurred between the defendant's vehicle and the plaintiff.

2. The substantial conflict between the parties relates to liability, the plaintiff submitting that the accident was entirely due to the defendant's negligence, and the defendant, while conceding some fault, saying that the plaintiff should bear the majority of the responsibility for her injuries.

3. At the time of the collision it was dark, windy and raining. A large flat roof covered the petrol pumps. There were three rows of double-sided pumps, two in each row, allowing for six lanes of vehicles. The plaintiff stopped in the lane farthest from the building which contained the shop and the operator's console. It was thus necessary for her to cross five vehicle lanes to get to the shop.

4. The plaintiff had travelled from her home in the adjoining suburb, Dunlop. She was on her way to work at the Ozanam aged care hostel, operated by the Society of St Vincent de Paul at Campbell. She said that her journey at that time of the morning normally took her fifteen to twenty minutes, and that she usually arrived five or ten minutes before her formal starting time of 7.00 am, giving her time for a cup of coffee with the carers completing the earlier shift. She went to an automatic teller machine at the Charnwood shopping centre, and then drove to the service station. She pulled up facing west, at a pump in the lane closest to the street and farthest from the shop. Her petrol cap was on the driver's side of her vehicle, and she pulled up in that lane with her cap level with the pump. She served herself with petrol at the pump, and walked to the shop to pay for it. There were a number of other cars stationary at other pumps. She walked around and to the east of rather than through the stationary cars and the petrol pumps. She suddenly became aware that there was a moving car right beside her. She saw that she was in the centre of a white bonnet, and it seemed to her that in the same instant the car hit her. The next thing she knew was that she was lying on the concrete ground surface.

5. The plaintiff said that she looked before she started walking, to make sure that it was safe. She was wearing a light-coloured thigh-length jacket over a bone jumper and a pair of navy slacks, with white Reebok running-style shoes. The vehicle which struck her came from her left. Her recollection was that the vehicle was in the second-last lane before arriving at the shop: that is to say, that she had not yet passed the line of pumps closest to the shop when she was struck.

6. The plaintiff saw that her left foot was at an unusual angle and she knew instantly that her leg was broken. The defendant came up and asked whether she was all right. She told him that she had broken her leg and he said that he was sorry. A coat was put over her and in due course she was carried into the shop and placed on a chair until an ambulance arrived.

7. Some weeks after the accident, the defendant called at the plaintiff's home with a bunch of flowers, and again said that he was sorry. She accepted this gesture with good grace.

8. In cross-examination, the plaintiff agreed that she had not seen the defendant's car until a split second before the moment of impact, though it may have been among the stationary cars she noticed generally on the site earlier. She could provide no explanation for this, other than that there had been nothing to warn or alert her to its approach, and that it was dark, although she agreed that there was fluorescent lighting fixed to the underside of the roof over the pump area. She agreed that she had no difficulty seeing where she was going. She was looking towards the shop and said that she had no reason to look in any other direction. She accepted that if she had turned and looked to her left, she would have seen the car earlier. It appears that she last looked towards the vehicles at the service station as she commenced her walk from her own car, about ten or fifteen metres from the point of impact. None of the cars appeared to have their lights on, and as she walked, she was not conscious of any lights coming towards her which might have alerted her to look to her left again. She regularly filled her car at the same bowser at that service station at the same time of the morning, and she had always done exactly what she did on that morning and had never been hit by a car before. She was adamant that she was struck by the centre of the bonnet of the car. She denied that she was running or walking very quickly, and maintained that she was walking at her normal speed.

9. The defendant, a Northern Territory Police recruit by the time of the hearing, had been at the time of the accident an electrician with O'Donnell Griffin, working on a rollout of TransACT broadband cable from a depot at Lyons. He also lived at Dunlop, and he was also due to report for work at 7.00 am. As was his usual habit, he stopped at the Charnwood Service Station to buy a newspaper and a drink. His evidence was that he stopped in the lane closest to the shop, adjacent to the petrol pump nearest to the plaintiff's intended path facing east. He was driving a white Holden Barina sedan, the smallest car in the Holden range. After buying his paper and drink, he returned to his car. He noticed a large dark blue dual-cabin four-wheel drive vehicle stationary in the next lane, facing west, at the same pump. He estimated the height of the hard-top canopy on the back of the vehicle at about 1.8 metres. He got into his car, put on his seatbelt, started the motor, put on his windscreen wipers and headlights, and moved off. He look first towards the shop to make sure no one was coming. His vision to the right was obscured by the large stationary vehicle beside him, and he said that he just slowly went forward until he could get past it. As he did so, the plaintiff came out in front of him. As soon as he saw her he braked. He estimated his speed at not much more than five kilometres per hour. He described the plaintiff as having her head down and arms folded, and described her gait as a hurried walk. She put her hand out towards the front of his car to brace herself, when she was approximately in line with the front driver side corner of the car. The impact, coupled with her own momentum, caused her to spin around and land on the ground on the passenger side of his car. He immediately turned off his engine, lights and wipers, got out and went to the plaintiff. He said that he was sorry he had hit her, and she replied that she was sorry as well.

10. He visited the plaintiff some time after the accident and they joked about the incident. He said that he basically apologised again for running into her, and she apologised back.

11. In cross-examination, the defendant agreed that he had had the plaintiff under observation for only about a metre of her path prior to impact, less than a second. He was able to see that she had her arms folded and her head down. The defendant did not recollect that there were any other cars at the petrol pumps. He did not deny that the plaintiff's vehicle must have been there but said that he did not see it. It was possible that he had moved two or three metres from his stationary position prior to impact. In addition to his view being obscured by the adjacent stationary vehicle, his vision might also have been partially obscured by the pillar between the driver's door and the windscreen. It was the defendant's clear recollection that the point of impact was in the traffic lane closest to the shop.

12. Whilst it is clear that the collision was reported to police, and that both the plaintiff and the defendant gave versions to a police officer soon afterwards, neither version was placed in evidence. It is open to me to infer that to have tendered the defendant's version would not have assisted the plaintiff's case, and that the plaintiff's version equally would have been of no assistance to the defendant. The upshot is, unfortunately, that I do not have the benefit of contemporaneous statements made by the parties which might have assisted me in resolving the inconsistencies in their oral evidence three years after the event. The plaintiff signed a workers' compensation claim form soon after the accident, but the description of the collision is so cryptic as to be of no assistance for that purpose.

13. I do have the benefit of a statement taken from the defendant by an investigator, for the purposes of his case, in February 2002. The statement is typed and is framed in the somewhat stilted language characteristic of such statements. It was clearly prepared by the investigator rather than the plaintiff. The description of the collision is generally consistent with the defendant's oral evidence, except that it contains a statement that the defendant's first glimpse of the plaintiff was when she was in line with the driver side headlight of his car, and that when he first saw her she was "basically right on top of the car... one minute she wasn't there and the next she was."

14. Counsel for the plaintiff sought to make something of the fact that the statement made no specific mention of the defendant turning his lights on when he started his engine after getting back in his car. The statement similarly made no mention of turning on his windscreen wipers. I am not persuaded that the wording of the statement is of any assistance to me in determining whether or not the defendant put his lights on prior to moving off just before impact. I think that more probably that not he did, but having regard to the overhead lighting, it does not seem of a great deal of importance in determining liability.

15. The defendant's version as to the lane in which he was travelling, and thus the lane in which the collision occurred, is inherently more probable than the plaintiff's version. The plaintiff had no particular reason to remember precisely where on her path from her car to the shop she had reached by the time of impact, and thereafter the pain associated with her ankle fracture must have overwhelmed all else in her mind. The defendant on the other hand has adhered to this version at least since February 2002, and his recollection of the large stationary vehicle which obscured his view is something he would have been likely to remember.

16. This a case where there was fault on both sides. It must be regarded as common knowledge to motorists that on the surface of a service station, there will regularly and frequently be moving vehicles and moving pedestrians. The plaintiff looked towards the vehicles as she commenced her walk to the shop, and perhaps understandably was thereafter distracted by the wet and windy weather, but a prudent person in her position would have looked again as she reached each lane of traffic, to ensure that the way was clear, and this, she admits, she failed to do.

17. The defendant should equally have been alert to the possibility that other customers might cross his path on the way to pay for their petrol. He proceeded at a time when his visibility to his right was obscured. He did not sound his horn. He has properly conceded negligence.

18. It is unnecessary for me to find precisely which part of the defendant's vehicle first came into contact with which part of the plaintiff's body. It was put to the plaintiff in cross-examination that she had walked into the driver side of the defendant's vehicle. It seems to me that the only way in which she could have ended up on the ground on the passenger side of the vehicle is if she was struck by the front of the vehicle. Her major injury was an ankle fracture. There can be no question that this was a direct result of the impact. It is unnecessary to make specific findings as to whether her leg was struck by any portion of the car, or whether the fracture occurred as she fell to the ground.

19. Although there is no general principle of law to this effect, the usual approach is to apply a higher standard of care to the driver of a motor vehicle than to a pedestrian, by reason of the patent potential of a motor vehicle to inflict serious injury upon a pedestrian. My task is not to determine the proportions in which the plaintiff and the defendant contributed to the collision. Rather, s 102 of the Civil Law (Wrongs) Act 2002 requires me to reduce the plaintiff's damages to the extent I consider just and reasonable having regard to the plaintiff's share in the responsibility for the damage. The driver of a motor vehicle is under a very high duty to ensure that he does not drive that vehicle within the shared area of a service station in such a way as to collide with a pedestrian. A pedestrian crossing the shared area of a service station is under a duty to take reasonable care to ensure that he or she is not struck by a moving vehicle. In the circumstances of this case, it seems to me that the defendant must bear the major share of responsibility for the plaintiff's injury. It would in my opinion be just and equitable for the plaintiff's damages to be reduced by 30% to reflect her share in that responsibility.

Damages

20. The plaintiff was taken by ambulance to hospital where an x-ray of her left ankle was taken, and her leg was placed by an orthopaedic registrar in a backslab. For the first week she was in pain which she described as unbearable, the worst she had ever experienced. She was unable to do anything, and her daughter Susan looked after her at home. After a week she went back to the hospital where the slab was removed and replaced by a plaster cast just below the knee. The cast remained in place for four to five weeks. The plaintiff was given strong painkillers. The cast was then replaced with a hinged surgical boot ordered by Dr Bryan Ashman, orthopaedic surgeon, to whom her general practitioner, Dr Clyde, had referred her because of continuing severe pain.

21. Early x-rays disclosed a spiral fracture of the distal end of the left fibula without significant displacement. They failed to detect a fracture of the malleolar portion of the tibia. Dr Ashman initially thought that the plaintiff would make a gradual recovery from the injury, and that within perhaps twelve months, she should have returned to her pre-injury state. Unfortunately, this was not to be. The plaintiff's workers' compensation insurer engaged a rehabilitation consultant, who arranged, in consultation with her general practitioner, for her to return to work, on very much reduced hours, from the beginning of September 2001 for a trial period. The insurer referred her to Dr C R Maron, a specialist in occupational medicine, who agreed that she was fit for limited duties not including direct patient care, prolonged walking or standing, or pushing or pulling activities with weight. He thought that she should continue with physiotherapy for a few months.

22. In October 2001, Dr Clyde referred the plaintiff to Dr W J Coyle, orthopaedic surgeon, who saw her once in Dr Ashman's absence in October 2001. X-rays taken in October showed fractures of both the medial and the lateral malleolus of the left leg, the first probably not united and the second probably partially united. A CT scan of the ankle showed some degeneration of the margins of the bone at the fracture sites. Dr Coyle thought that the chance of either fracture healing without surgery was less than 50%. Dr Ashman who saw her a couple of days later thought that a decision about surgery should be delayed to give the fractures further time to unite. By then the plaintiff was in such pain that she was unable to continue with the return-to-work program put in place by the insurer.

23. In late September 2001 the plaintiff contacted the insurer and notified her intention to move to Tamworth, where both her parents were in a nursing home and nearing the end of their lives. She was evidently concerned about her continuing entitlement to workers' compensation. She was reassured that the insurer would continue to pay for the hours over and above those the plaintiff was working with Ozanam as part of her return-to-work program. The plaintiff accepted this as she felt that she should be able to obtain similar work in Tamworth. She had been planning prior to the injury to move to Tamworth to be near her parents in the last stage of their lives. She formally resigned with effect from 7 November 2001. She moved to Tamworth, where she lived by herself in a caravan behind her brother's house. Her parents died in March and April 2002. She lived in Tamworth for about two years in all, and then moved to her present home at North Haven on the north coast of New South Wales near Port Macquarie.

24. The plaintiff continued with medical including orthopaedic monitoring and treatment during her time at Tamworth, and after her move to North Haven. She tried without success to obtain employment in Tamworth. The workers' compensation insurer referred her to the Tamworth office of CRS Australia for vocational assessment and to a Tamworth firm of rehabilitation consultants. CRS assessed her as suited to employment as a respite care worker. Other positions in which she expressed interest were either beyond her physical capacity having regard to the ankle injury, or required additional tertiary qualifications. The rehabilitation consultants were unable to place her in employment in the area, and in a final report to the insurer, concluded that she was not suitable for continuing occupational rehabilitation. Relevant factors were her physical restrictions, age, employment background, transferable skills, and the local labour market. The plaintiff showed some enthusiasm for computer training, but she was unable to afford the cost of this and the insurer was unwilling to assist.

25. Whilst in Armidale, the plaintiff underwent, apparently at her own expense, a number of sessions of psychological counselling for depression consequent on the injuries and the loss of her capacity to work. The psychological impact of the injuries on the plaintiff should not be overlooked. She was assessed in June 2004 by Dr D Samuell, psychiatrist, for the purpose of a report to the solicitors for the defendant. At that time she still felt some anxiety in traffic, but more significantly felt that the injuries had taken her normal life away from her. She missed activities no longer open to her such as playing with her grandchildren and walking in the sand. Dr Samuell found no signs of any recognised psychiatric illness. He did not think that the plaintiff required any psychological treatment, whether by way of counselling or medication.

26. A somewhat different picture emerges from a report by Dr D Jansen, a psychologist at Laurieton, to whom the plaintiff was referred by her general practitioner in May 2004. He conducted two interviews with the plaintiff. His view was that she was still suffering from the consequences of the accident, and had considerable insecurity, anxiety concerning motor vehicles, lack of confidence and phobias. The loss of her ability to work had been traumatic, considerably diminishing her life meaning. She was left with a sense of being useless. The phobias related to crowded areas, escalators, stairs, motor vehicles, and generally a fear of being knocked over. Crossing the street was a frightening experience. In the plaintiff's words, "someone just took my life away - my ability to work and to be useful was gone." Unlike Dr Samuell, Dr Jansen thought that the plaintiff exhibited symptoms of post-traumatic stress disorder, and would benefit significantly from an extended course of psychological counselling. He referred also to a fear, partly engendered by one of the treating specialists, that eventually the plaintiff's ankle would freeze.

27. Her present general practitioner, Dr Carol Webster of Port Macquarie, expressed the opinion in June 2004 that the plaintiff might be susceptible to early onset arthritis having regard to the fact that the articular surface of the ankle joint had been damaged. This opinion had previously been expressed by Dr G G Griffith, a consultant surgeon who examined the plaintiff on two occasions for the purpose of reports to her own solicitors. Dr Griffith said in November 2001 that it was extremely likely that the plaintiff would suffer premature osteoarthritis of the left ankle joint. He noted that the injury had left her with chronic ligamentous laxity, causing instability of the ankle on walking and other movements. He thought that this could be helped by strapping the ankle with non-stretch strapping.

28. Dr Griffith saw the plaintiff again in November 2002. He confirmed his earlier view of the likelihood of premature osteoarthritis. He did not think that she would require surgery for her fractures, as they had partially united and appeared stable. He again recommended strapping of the ankle, which would greatly increase stability, but it is not clear that the suggestion was passed on to any of the treating doctors, and certainly it does not seem to have been put into practice.

29. The plaintiff was cross-examined about symptoms of arthritis she had exhibited prior to the accident. He then general practitioner, Dr Viketos, had referred her to the ACT rheumatology clinic in June 1998 with a history of arthritis affecting the hands, wrists, elbows, shoulders and neck, with attacks lasting for a few days and occurring about once a year for the previous six or seven years. There had been several attacks in the preceding months, and a family history of arthritis. A registrar at the clinic had diagnosed palindromic rheumatism. The statistical prognosis was a 30% chance of long-term remission, a 30% chance of intermittent symptoms, and a 30% chance of progress later in life to rheumatoid arthritis. Appropriate medication had been prescribed.

30. The plaintiff's evidence was that the condition had not been disabling. It was not suggested to her that the pre-accident arthritis had had any effect on her working or earning capacity.

31. The plaintiff's daughter, Susan Hearps, gave evidence that she looked after the plaintiff at her home after the accident. She estimated that she was spending four to five hours a day, doing "absolutely everything" for her mother at the beginning, as she could not get out of bed even to get a glass of water. She helped her to and from the toilet and assisted with showering and dressing. She prepared the plaintiff's meals and attended to her washing and ironing. After the plaintiff's plaster was removed she could look after herself to a degree, but Ms Hearps estimated that she was still spending about an hour a day doing her mother's washing, ironing, and similar tasks. After her mother went back to work, Ms Hearps drove her to and from work.

32. The manager of the Ozanam aged care facility, Ms Jennifer Olrick, was responsible for the plaintiff's supervision when she worked there. Ms Olrick thought the plaintiff had commenced with Ozanam in 1998 or 1999. She described her as an excellent carer, a friendly person who got on well with other staff and related very well to the residents. She seemed very fit before the accident, moving quickly and always on the go, and rarely taking sick leave. The plaintiff was undertaking studies for a level three certificate, which she had almost completed before the accident, and completed afterwards. This would have qualified her for a greater level of responsibility and increased income.

33. Ms Olrick said that there was no formal retiring age at Ozanam, or in the aged care industry in Canberra. In her experience older carers related better to residents. She knew of one carer at another facility who was seventy years of age, and said that there would have been no impediment to the plaintiff continuing to work beyond the age of sixty-five had it not been for the accident. Ozanam was restricted to residents requiring low care, so that the heavy lifting associated with high care residents in a conventional nursing home was not a factor. One of the other carers at Ozanam at the time of the hearing was sixty-three.

34. I am satisfied that the plaintiff tried to find paid work in the aged care industry in Tamworth and later in Port Macquarie, and that she was unsuccessful in doing so because of her injured ankle. Tamworth and Port Macquarie each has a population of the order of 30,000. It is a matter of common knowledge that each, probably for different reasons, has an aging population, and an increasing number of persons entering the age group likely to require residential care. I am satisfied that with her experience and grade three certificate, the plaintiff would have had little difficulty finding employment in either city, had it not been for her ankle injury.

35. The plaintiff concedes that she would have moved to Tamworth to be with her parents when she did, regardless of the accident. We now know that her parents were to live for only a few months after she moved there. If she had not been injured, it would have been open to her to return after their death to Canberra, where I have no doubt she would readily have found employment, perhaps at Ozanam. This option was effectively closed to her by the injury.

36. I am satisfied that the plaintiff would have continued to work but for the accident at least to age sixty-five and probably longer, perhaps even to age seventy, though no doubt she would have sought to reduce her hours in later years. There would have been, as a countervailing consideration, the prospect that her pre-existing arthritis might progress to rheumatoid arthritis and force her to give up work.

37. Additionally, the plaintiff gave evidence that she had torn a ligament in her left shoulder shortly before the accident. This occurred in the course of her work, and she continued to work, although she saw a doctor about it. She was referred for physiotherapy and it appeared to be improving until she aggravated it while on crutches after her ankle injury. By the time of the hearing, she had been told that the tear should be surgically repaired, and she intends to undergo this operation within the next two to three years. This is another matter which I should take into account in assessing damages for impairment of earning capacity.

38. At the time of the accident, the plaintiff was earning $422 net per week. The present value of a continuing loss of $422 per week for a woman aged sixty, assuming an interest rate of 3% and mortality according to the Australian Life Table 1997-99, is of the order of $100,000. The present value of the same loss to age seventy is $185,000. Taking account of the ordinary vicissitudes of life, as well as the specific factors I have already mentioned, it seems to me that an appropriate amount to compensate the plaintiff for her loss of earning capacity, past and future, and including loss of superannuation benefits, is $100,000. The plaintiff has received workers' compensation payments and there is no claim for interest on the past component. There is thus no necessity for me to apportion that figure as between past and future.

39. The injury warrants a substantial award of general damages. Its effect has been to deprive the plaintiff of the ability to engage in employment, and this was a very significant part of the plaintiff's life. Her friends tended to be people she worked with. I accept that the plaintiff feels that the injury has shattered her life. It has had devastating psychological consequences, some but probably not all of which may be alleviated by counselling. Most significantly, the plaintiff suffered excruciating pain in the left ankle at the time of the injury and in the weeks and months following, and she still has pain which interferes with her sleep and requires medication. I accept the opinion of Dr Griffith that she is likely to develop osteoarthritis in the ankle joint. This will inevitably cause more pain in the future and may ultimately require surgery in the form of fusion of the ankle joint. Such an operation would be expected to remove the pain though at the cost of any flexibility at the ankle. Taking all of these matters into account, it seems to me that a proper figure for general damages is $75,000. I apportion $35,000 of this to the past and allow $2,500 interest on it.

40. It is agreed between the parties that I should allow $7,070.55 for past medical, hospital and like expenses; $2,940.00 for past gratuitous services (Griffiths v Kerkemeyer); and $4,458.80 in respect of the tax on the past workers' compensation incapacity payments (Fox v Wood). It is further agreed that the workers' compensation insurer has paid $5,039 in rehabilitation expenses. The plaintiff seeks that I include this latter amount in her damages, on the basis that she will be required to pay an equal amount to the insurer by virtue of the operation of s 22 of the Workers Compensation Act 1951, as in force prior to the 2003 amendments to that Act. (The amended Act applies only to injuries after its commencement: s 235 of the Act as since amended.)

41. For the reasons which I set out in Andrikis v Nominal Defendant [2004] ACTSC 43 (unreported, 11 June 2004) it does not appear to me that the rehabilitation expenditure can be categorised as an amount received by the plaintiff under the Act, or an amount paid to the plaintiff, for the purposes of s 22; or that it comes within the expression "compensation... paid or payable to a person for the benefit of" the plaintiff so as to come within subsection 21A(3) of the Act. It follows that the defendant will not be required to deduct the rehabilitation expense amount from the plaintiff's damages and pay it to the workers' compensation insurer; and that the plaintiff will not be obliged to pay an equal amount to the insurer. This being so, the plaintiff is not entitled to recover the rehabilitation expense amount as part of her damages.

42. It is necessary to make an allowance for the cost of future treatment. The plaintiff will continue to require analgesic medication, and will need to see her general practitioner from time to time to obtain prescriptions and to have her condition monitored. In the long term it is likely that she will develop osteoarthritis in the ankle joint, and this will require more intensive treatment which may include surgery. The development may not take place for many years. Additionally, I am satisfied that the plaintiff would benefit from a course of psychological counselling, though I cannot be sure that the plaintiff will choose to incur this expense. According to the Australian Life Tables 2001, a woman aged 63 has a life expectancy of 23.43 years, though this may be a little optimistic in the plaintiff's case having regard to the fact that she is a cigarette smoker. The applicable 3% multiplier is 880. Taking these considerations into account, it seems to me that an appropriate amount to allow in respect of future expenses is $10,000.

43. No interest should be allowed on the past treatment expenses, they having being paid by the worker's compensation insurer, but an allowance should be made for interest on the Griffiths v Kerkemeyer component, which I note relates to the period of ten weeks following the injury. I allow $900 in this regard.

44. The total of the individual components is:

General damages $75,000.00

Interest thereon $2,500.00

Loss of earning capacity $100,000.00

Past treatment expenses $7,070.55

Griffiths v Kerkemeyer $2,940.00

Interest thereon $900.00

Fox v Wood $4,458.80

Future treatment expenses $10,000.00

Total $202,869.35

45. That amount appears to me properly to reflect the impact of the injuries upon the plaintiff. Having regard to my earlier findings in respect of contributory negligence, the total must be reduced by 30%. There will be judgment for the plaintiff for $142,008.55.

46. I shall hear the parties in relation to costs.

I certify that the preceding forty-six (46) 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 I D Bradfield

Solicitor for the plaintiff: Baker Deane & Nutt

Counsel for the defendant: Mr D M Wilson

Solicitor for the defendant: Sparke Helmore

Date of hearing: 19, 20 July 2004

Date of judgment: 28 January 2005