Keskinides v Brisbane City Council
[1996] QDC 222
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- Unreported Judgment
- Keskinides v Brisbane City Council[1996] QDC 222
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Keskinides v Brisbane City Council[1996] QDC 222
Keskinides v Brisbane City Council[1996] QDC 222
DISTRICT COURT | No 141 of 1991 |
CIVIL JURISDICTION
JUDGE ROBIN QC
ATHANASIOS KESKINIDES | Plaintiff |
and
BRISBANE CITY COUNCIL | Defendant |
BRISBANE
DATE 30/08/96
JUDGMENT
CATCHWORDS:
Tort - negligence - employer and employee - plaintiff established work incidents happened on 2 successive days but not that either injured his back - negligence established in first incident only - no complaint of resultant injury to plaintiff's back for years - psychogenic pain experienced by plaintiff not linked to either incidents.
Practice and procedure - amendment of pleadings - issue whether leave to amend was necessary (and, if so, appropriate) in action claiming a work injury on 28.1.88 to include a separate work injury on 27.1.88 after expiration of limitation period - whether plaintiff was simply varying particulars in a permissible manner - whether plaintiff was pleading a new cause of action.
Tort - Damages - assessment - psychogenic back pain - “full blown case of compensation neurosis” - plaintiff assessed as likely to improve after litigation - damages assessed although plaintiff failed on liability.
HIS HONOUR: This is a sad case with elements of classic tragedy about it. I say at the outset the plaintiff's claim fails. It seems to me there has been an inevitability about that from the outset. The claim has been fought out in a long, bitter battle culminating in a five day trial with the plaintiff surrounded by his wife and children. It is easy to accept that what motivates him, as he said in his evidence in this case, and indeed what motivates him in his life generally is providing the best support he can for them.
This is the latest in a series of battles. The plaintiff since he stopped work on 28 January 1988 before finally terminating his employment in about March 1990 was in a fight of kind with the Workers' Compensation Board in an unsuccessful attempt to obtain compensation. Thereafter he found himself in the Social Security Appeals Tribunal in what seems to have been a successful quest to obtain the Invalid Pension, which I infer he still has. Dr Eastwell wrote a report which seems to have been of considerable assistance there.
This is Mr Keskinides' common law action in respect of negligence alleged against his employer, the Brisbane City Council, in respect of an injury on 28 January 1988, a lifting injury. The action was commenced on 3 January 1991 in the Magistrates Court when $20,000 was claimed. It was ordered it be transferred to the District Court subsequently.
The plaint has been amended to add what the defendant says is a new cause of action, what the plaintiff says is a different particularising of the cause of action he has asserted all along. The original claim was that:
“On or about the 28th of January 1988 the plaintiff bent over to pick up certain signs belonging to the defendant at the Perry Park Soccer Stadium. As the plaintiff picked up the signs he suffered extreme pain in his right lower back and neck.”
The added material alleges that on the day before the plaintiff was involved in another lifting incident involving a sign, this time at the defendant's Helen Street Depot.
Mr Samios urged upon me that I not regard this case as one about failure to report that earlier incident which appeared to be mentioned nowhere before January 1994. It is very difficult to avoid treating the case in that way, nevertheless.
A curiosity is that there is ample evidence that an incident of the kind the plaintiff said happened on 27 January 1988 did occur at the defendant's Helen Street Depot in very much the way the plaintiff says. He was a leading hand in charge of a maintenance truck with two assistants, Mr Facina and Mr Brown. They were bringing the truck back to the Helen Street Depot where it had to be locked away at the end of the day. It could not be moved to the appropriate location because a heavy sign was in the way. The plaintiff prevailed on the other two to help him lift it or perhaps drag it out of the way. It was moved 10 feet or so to enable the truck to get through. There were other council employees, perhaps white collar employees, in an office on the site who theoretically could have been approached to help manoeuvre what seems to have been a sign weighing 200 kilograms, if not more, with dimensions on the sign proper of 3 metres by 2 metres or more and posts some 5 metres in length.
Mr Brown was unwilling to join in lifting or manoeuvring the sign, thinking it was too heavy, but in the end he assisted, he and Mr Facina taking one leg each, the plaintiff the greater weight at the sign end.
On the evidence the plaintiff made no complaint of having hurt his back, nor was anything observed by Mr Brown or Mr Facina to indicate he might have done that. The plaintiff is adamant that the date was 27 January. I am not sure that the others support him as to the date, but the incident was clearly enough something that happened and, on the balance of probabilities, in the month of January 1988 and not before.
The suggestion that help from the council employees who at the end of the day might still have been in the office, and I would think were, and might have been called on to assist was regarded by the one witness confronted with it as inappropriate, and I think I would have to accept that response.
In the end I do not know that much turns on the correctness of the date. Accepting that the plaintiff is correct, I would say he has established negligence against the defendant in respect of this incident. A very heavy sign was left where it had to be moved, unless the sign was to be damaged by the vehicle being driven across it.
It was negligence of someone for whom the defendant Council must be responsible to have left the sign there and without a way of moving it safely. That last comment may be the clue as to why the sign had been left there by some unknown person in the first place. There seems to have been no suitable mechanical lifting device available at the depot at that time. It was apparently a temporary depot only. While the plaintiff succeeds to this point in what is placed before the Court regarding 27 January 1988 he succeeds no further, in particular, he does not persuade me that any injury occurred to his back in that incident.
As I have said, it seems from what the evidence shows not to have been mentioned in any context whatever until January 1994. The plaintiff had many opportunities beforehand to mention the incident. More than that, there were many occasions when one would expect him to have mentioned it. This feature of failure to report and in particular failure to report an injury to his back is also present in respect of the incident of 28 January 1988 which the plaintiff has pleaded all along.
He describes this “lifting” incident as having developed from his seeing spots before his eyes while driving from Helen Street depot to Perry Park. The injury report form which in fact bears the later date of 7 March 1988 goes on to say that when the plaintiff started to pick up signs he blacked out and had pains in his back. In that form the part of the body said to have been injured was the plaintiff's back. The nature of the injury was said to be a strain.
This document does not bear the signature or indeed any writing of Mr Keskinides. It is obscure that he had actually commenced any lift at all. It was an odd thing if he did so since he was obviously distressed and by quite troubling symptoms which I suppose might have led to any lifting being done incorrectly or awkwardly. It is quite clear that he suffered from symptoms such as spots before his eyes and dizziness before he even got to Perry Park.
My appreciation of the evidence is that it was those other symptoms that he complained of when he returned immediately to the depot at Helen Street and saw Mr McGowan and that he complained of when he saw Dr Court on that day and Dr Aroney the following day. Dr Aroney referred the plaintiff to the gastroenterology section at the Mater Hospital for investigation of what seemed to be potential internal problems as opposed to potential musculoskeletal problems.
A note made by a hospital doctor on 3 February does refer to back lumbar pain but I attach no particular significance to this. The hospital was clearly not investigating a back complaint. I consider that it is silly to suggest that the plaintiff would have kept silent if he had thought the hospital staff should be investigating his back rather than matters bearing upon “internal problems” which he clearly had such as a hiatus hernia, an ulcer, and any other cause (if there was such a thing) of his suffering before the accident like blood in his bowel motions.
The plaintiff in his evidence seemed to acknowledge that ordinarily the lifting required at Perry Park would not have been a problem to him. Mr Smolakovs' report does not persuade me that any lifting required of signs at Perry Park would have been excessive. The consequence of this is that no negligence is established against the defendant in respect of the event on 28 January 1988. In addition to that, the plaintiff fails on this aspect of the case because in my view no injury to his back is shown to have happened on 28 January.
Mr Samios referred to Birkovich and J A Clough and Son Pty Ltd 1983, 57 ALJR 834 at 835 for purposes of making a favourable distinction in the present case. The favourable distinction he says is available in respect of 28 January is that the plaintiff here has fairly litigated in the way Mr Birkovich had not to assert that his back was already weakened not only by anything that might have occurred on 27 January 1988 but by the plaintiff's work for the defendant over the years, and moreover that the defendant knew of these matters. It is not suggested that the defendant knew anything about 27 January 1988, in fact, no report was ever made to it.
There is a factual basis for what Mr Samios says. The plaintiff who was born outside Australia on 8 December 1947 was a qualified carpenter who joined the defendant in that capacity about 1973. He is of slight build and understandably took the view that the work that the Council was asking him to do was too heavy, particularly when he came to be employed as a maintenance carpenter, a category which seems to have involved work which occasionally might be heavy such as the installing and removal of signs.
He certainly made his objections to heavy work known to his superiors in the Council. Their view, which I accept, is that the work he was given was the lightest that was available, often involving small maintenance jobs, although it is conceded there was from time to time heavy work. The evidence is that the plaintiff was an enthusiastic worker who would do any task in hand, whatever preference he might have harboured for lighter work to be assigned. Indeed, that attitude was exemplified in the incident which occurred on or before 27 January 1988.
Mr McDougall, who appeared for the defendant, a number of times throughout the trial and without challenge summarised Mr Keskinides' medical history over the 10 years before January 1988 by saying it included a very significant number of 19 complaints to the West End Clinic where Dr Court, his usual doctor, practised, of neck pain and shoulder pain, back pain and right chest wall pain, the last incidence of which was very shortly before the events which have been ventilated in Court on 22 January 1988.
Mr McDougall's summary also includes the claim that over that period the plaintiff had nine absences from work on compensation, some short, being a week or less and not many longer than three weeks off work. All of this history the defendant was not only aware of but concerned about; both medical and managerial people appear to have been anxious that the plaintiff not get back to work until it was determined what was wrong with him on the basis that an early recurrence of further workers' compensation claims was only too likely.
This seems to have arisen in respect of the plaintiff's absence on compensation in 1987 - 18 August 1987 seems to be the date of the previous workers' compensation claim.
The defendant has taken that history into account reaching the views expressed regarding the incident of 28 January 1988 at Perry Park, soccer stadium.
MR MACDOUGALL: That appeared to be 24 August 1987, the workers' compensation.
HIS HONOUR: Yes, thank you. The plaintiff's failure to mention either that incident or the one on the previous day on any of a dozen or so occasions when one might have expected him to, is striking. English is not his native language. He managed to give evidence, I thought satisfactorily, without an interpreter. He has been assessed as of perhaps slightly less than average intelligence but that has to be qualified by reference to the fact that the Council thought it was appropriate to give him work which was unsupervised, indeed had him supervising others.
It is understandable that for one reason or another the plaintiff might have omitted to mention the two incidents which featured so prominently at the trial. Common sense recoils against extending to the plaintiff indulgence to the extent that he should be spared any consequences of failure to mention the incidents on as many occasions as he did. When I say “mention the incidents”, I have in mind mentioning them as a cause of back injury. The occasions or the opportunities the plaintiff had to mention this began on 28 January 1988 when he saw Dr Court. He says and I accept that he certainly would have made a note if he had been told of that back injury caused by lifting.
The next occasion was the following day when the plaintiff saw Dr Aroney, who is deceased. It is clear that Dr Aroney was given no cause to think that there was anything of a musculoskeletal nature which was of concern.
The council's medical officer, Dr Moss, saw Mr Keskinides on 8 July 1988 when mention was certainly made of the incident of 28 January, but in terms of the concern being the spots the plaintiff saw before his eyes.
On 21 July 1988, to satisfy demands of the Workers' Compensation Board, the plaintiff went to see Dr John Douglas, physician. There was specific questioning by Dr Douglas as to incidents that might have caused the complaints the plaintiff had. This elicited no reference to lifting incidents in January 1988. It was, however, clear that that was when the plaintiff stopped work. Dr Douglas records that the plaintiff clearly believed there was a link between the discomfort and pain he complained of in his back and the spots before his eyes. Dr Douglas thought they were probably consistent with a migraine which would in no way be linked with back pain. Dr Douglas' report is one of many which show the plaintiff having quite a good memory of earlier incidents in which he had hurt his back; as far back as the beginning of the 1980s.
As Mr McDougall said, it is odd that since the plaintiff had never had so long off work he would, when he was seeing Dr Douglas, not have attributed his problem to significant back injuries in January 1988, if there had been any.
On 13 September 1988 the plaintiff saw Dr Parker who thought there was nothing wrong with him. No mention was made of the January 1988 incident.
The same applied when in March 1989 the plaintiff saw Dr Niven, who had replaced Dr Moss as the medical officer working in the appropriate branch of the defendant.
Those appear to be the opportunities the plaintiff had to complain of lifting incidents to medical people before he instituted these proceedings in the Magistrates Court. Once that happened perhaps it can be said that the incident of 28 January 1988 became part of the background, so it was unnecessary for the plaintiff to mention it. He might have assumed the doctors he saw were informed about it.
I mention at this point Mr Samios' suggestion that the plaintiff may have been distracted from referring to the 27th of January incident because what was foremost in his mind was the 28th, the last day when he worked. Mr Samios was under the belief that the plaintiff had said as much in his evidence. I am not sure about that, but even if it were so, I do not find the explanation convincing.
The manoeuvring of a very large sign which weighed a great deal was clearly a memorable event. Mr Facina and Mr Brown seem to be able to recall it, although not asked to for many years.
The plaintiff now seems to hold the belief that what happened on the 27th may have been responsible for the dizziness, spots before the eyes, et cetera, on the morning of the 28th. These considerations would lead one to expect him to refer to that incident when persons examining him, especially doctors, gave him an opportunity. His failure to do so, I think, is only explicable on the basis that it was only at a relatively late date that the plaintiff himself came under the belief that he might have suffered an injury to his back.
The occasions when the plaintiff might have made a complaint but did not continue with his consultation with Dr Watson on 18 August 1992, then a consultation with Dr Pentis on 14 December 1992. There was a follow-up visit with Dr Pentis on 5 August 1993. Dr Pentis, of course, knew that something had happened to the plaintiff in January 1988 when he ceased work. His report appears to attribute to 1988 an injury which the plaintiff suffered in 1985 while working on the site for Expo 88.
On 9 March 1993 the plaintiff saw Dr Bendeich; with a follow-up visit on 5 May 1995. The plaintiff saw Dr Bendeich and failed to mention anything occurring on 27 January 1988.
The same omission had occurred more significantly in both of two consultations with Dr Tomlinson. The first was 9 March 1993, the second 1 June 1993.
The 27 January incident gets on to the record, so to speak, in early 1994. It features in a medical report for the first time in Dr Tomlinson's report of 11 February 1994. This is identical with his report of 8 July 1993 based on the two examinations I have mentioned, except that it omits a description of an incident in June 1987 at QEII Stadium, with the possibly telling comment, “Pain has persisted.”, and adds the following entirely new material to what had previously been reports of ‘lifting type’ injuries in 1985 and 1987:
“On January 27, 1988 while lifting signs at the Helen Street Depot he developed back pain. He completed his day's work and rested that evening. On the following day (28/1/88) he was working at the Perry Park Depot and on that occasion while lifting signs he experienced an acute exacerbation of back pain. This caused him to collapse. He was unable to perform any further work that day. On January 29, 1988 he sought medical advice from his general practitioner because of persisting back pain. Mr Keskinides was unable to return to work. He resigned from his job in 1990.”
In my opinion the likelihood is that Dr Tomlinson obtained the new information from the plaintiff's solicitors and probably at their instigation. I am not being critical of them in the least; it was plainly their duty to ensure that the medical reports were in accord with their client's instructions. Dr Tomlinson, like some other practitioners, including an unnamed doctor at the Mater Hospital, who noted, I think in 1987, it was difficult to get a history from the plaintiff, did feel there was some difficulty in obtaining his story. Dr Tomlinson recalled a concern of getting something right which led to him seeing the plaintiff again. That probably explains the consultation on 1 June 1993.
As to the 27 January incident complaints are mentioned as well in Dr Pentis' final report of 27 April 1994, Exhibit 6, where the doctor says to the plaintiff's solicitors:
“Thank you for a more specific account of what happened to the patient on 27 January 1988. This is more succinct than what I gained from the patient initially as he was a rather poor historian.”
I am sure the plaintiff harbours a feeling that he has the discomfort he feels in his neck, shoulder and back in consequence of having performed 15 years work for the defendant which he thought was at least at times too heavy. That might make his complaints genuine, but it does not make them good complaints from the point of view of the common law.
I have theorized that the plaintiff in 1988 when his claim was rejected by the Workers' Compensation Board came under the belief that he and his family's situation seemed parlous since the ordinary protection of Workers' Compensation might be lost to them. There are a number of documents suggesting the defendant did not particularly want him back at work. That exhibits no more than the concern we all expect in these days of economic rationalism that public bodies are parsimonious with public moneys.
I am willing to accept the plaintiff is genuine when, having searched for incidents in his work history which might have led him to his present unenviable situation, he settled upon what happened on 28 January 1988 and subsequently added the incident which he says happened the day before.
As to what his present situation is the evidence is conflicting. Dr Tomlinson, who's a neurosurgeon, in his third report dated 15 June 1994 adopts the explanation of the plaintiff's complaints that they can be related to the 27 January 1988 incident. I respectfully disagree with the doctor's view in that respect. His fourth report of 26/8/1996 for the first time attaches a percentage disability to the plaintiff's back complaint which can be explained by X-ray evidence showing some adverse development in 1992. The 10 per cent estimate was based on a review of the plaintiff on the 19th of this month.
Dr Pentis had given an estimate in his first report, 15 December 1992, based on an examination the day before, of 5 to 7 and a half per cent. It is difficult to ascertain any basis on which the plaintiff might have got worse, particularly as the evidence suggests he himself acknowledges that he is getting better, at least so long as he is inactive.
Dr Tomlinson has located in X-ray pictures what he considers evidence of pathology explaining the lack of function he assesses. There is no reason not to accept that. No incident of January 1988, in my view, can be regarded as having brought about that pathology in all the circumstances.
Accepting the plaintiff has a bad back, the defendant has not been shown to bear responsibility in any way relevant in these proceedings.
In fact, it is probably not as bad as he thinks. He is clearly able to do light work and has engaged in that to an extent I am unable to determine. Mr McDougall got him to agree it would have amounted to one hour or two hours a week in paid work for others - one of them, Mr Kyriacou gave evidence the plaintiff has done a two or three day job battening in the area under his house. He has done a one day job painting his lounge or ceiling, which a surveillance video shows was preceded by the plaintiff assisting Mr Kyriacou to remove a sofa of considerable size, although it was certainly not the heaviest style of sofa. The plaintiff was apparently able to climb ladders to paint the ceiling with relative ease.
Significantly, I thought a video taken the following day showed the plaintiff getting into the drivers' seat of his motor vehicle after moving to the vehicle easily and with some speed in a way that might have attracted the envy of less flexible people. A long scene of the plaintiff in the Highgate Hill TAB followed, the point of which, I ultimately heard, was the case with which the plaintiff was able to turn his body toward and away from a bench where he was sitting. I was grateful to have the explanation and accept that the defendant made that point.
The plaintiff also does maintenance work on his own home and two investment properties he has. He has demonstrated capacity to perform handyman activities. The defendant has demonstrated that he has made some money from this. I have no information which enables me to assess the overall picture. I agree with Mr McDougall this is not a case like Thomas v. O'Shea in which the onus falls on his client to show that there is something that the plaintiff can do to earn income. If anything, the onus in this case has switched back to Mr Keskinides, who has shown very little indeed.
The orthopaedic practitioners, and Dr Niven and Dr Moss are generally speaking of the view there is nothing wrong with the plaintiff's back. Dr Pentis and Dr Tomlinson and perhaps the latter in particular are on the other side. I do not know if it is necessary to resolve that difference because as I have said, anything which may be wrong is not the defendant's responsibility in this case.
I have to resolve the other conflict of medical evidence which is between Dr Nothling and Dr Eastwell. They are psychiatrists. Dr Nothling considers the plaintiff a malingerer and Dr Eastwell, whose role I have mentioned already, is of the opposite view. It is a difficult question. It is invidious for the Court to have to make a decision between two competent experts. I resolve it in the end without much confidence on the basis described by Mr Samios in one part of his submissions as giving the plaintiff the benefit of the doubt; in other words, when the plaintiff saw Dr Eastwell he was suffering from a “full blown case of compensation neurosis” with the salient aspects referred to in the report of 16 July 1990.
Dr Eastwell's subsequent report based on another interview with the plaintiff is dated 24 July 1996. If described the plaintiff as suffering from psychodemic pain. Dr Eastwell thinks, (and there is no reason not to accept it,) that the plaintiff's condition may last for about a year after completion of the litigation. I have to say that he seems to have contemplated “satisfactory” completion.
Dr Eastwell also expressed the view that the plaintiff's bodily aches and pains may have a longer duration but eventually they are likely to diminish further. The plaintiff cannot be assessed on any more favourable basis than that. I ought to make it clear at this stage that in my view the defendant does not bear responsibility for the condition diagnosed by Dr Eastwell. It is not enough that the plaintiff may blame the defendant. It seems to me that what he is reacting to is the distressing situation of being without secure work and unable to support his family as a consequence.
Dr Eastwell was concerned in assessing the plaintiff as he found him and not with exploring the causes of the situation he had to assess. The plaintiff has pleaded in paragraph 11 of the plaint that in consequence of what he claims happened in January 1988 he suffered various consequences including “anxiety, depression and headaches”. As Mr McDougall submits, there has been no evidence at all linking headaches with anything that occurred in January 1988. I am most certainly not persuaded that there is any relevant link between the plaintiff's present anxiety and depression and the January 1988 events. So far as the medical reports and other material are concerned, any link is even more tenuous than the link with back pain shown that the plaintiff can establish. In the circumstances, the interesting legal argument which occurred in relation to the state of the plaintiff's pleadings is of academic interest only.
Mr Samios submitted it is not necessary for his client to seek any leave to amend to bring in the 27 January event at the Helen Street depot because it was all part of the same cause of action. He referred to Black v. The Mayor, Councillors and Citizens of the City of South Melbourne (1965) Argus Law Reports 698, especially at 700. It was held by the High Court that the plaintiff was entitled to amend his particulars at trial to complain of his head hitting the bottom of the defendant's pool into which he dived as opposed to some submerged object.
That approach was followed in Juric v. Dixon Supply Co Pty Ltd at page 701 to permit the plaintiff to change his description of the circumstances of an accident when a frame which he was welding fell on him. At page 705, Menhennitt J declined to allow further amendments which he characterised as adding a new cause of action based on a breach of statutory duty.
Williams J in Koch v. J E C Australia Limited and Others, 4762 of 1987, 7 July 1992, without referring to Black adopted a similar approach to permit a plaintiff to amend to allege a second source of toxic fumes in his workplace which he claimed had damaged his health. In such cases the Court must be alert to any limitations problem - which is certainly the case here. I accept that the Court has a wide discretion in allowing amendments to circumvent a limitation freed of the constraints of the old rule in Weldon v. Neal (1877) 19 QBD 394. See McGee v. Yeomans (1977) 1 NSW R 273 at 280 and Adam v. Shiavon (1985) 1 Queensland Reports 1.
In McGee it was stated by Mahoney J at 284 that under “the relevant rules of Court” the facts out of which the new cause of action arises must be substantially the same facts. There is no difficulty in reaching a conclusion favourable to the plaintiff in cases like those referred to where there was a single dive or a single collapse of a frame; succumbing to ill effects of gasses, is perhaps a different case.
Mr McDougall submitted the present situation, which involves incidents in different locations on different days, involving different signs and with Mr Brown present on one occasion only is on the wrong side of the line. He cites Pianta v. BHP Australia Coal Limited (1996), 1 Queensland Reports 65. The case is similar to the present, but clearer in that the two incidents in respect of which the plaintiff wished to sue were separated by almost five months. Each allegedly produced injury to the plaintiff's back.
It is no doubt possible to formulate descriptions of the present circumstances which focus on what the two days had in common, such as the employment relationship, the plaintiff's history of back problems and the request for lighter work and the defendant's duty, which I accept that it had, not to negligently compromise the safety of the plaintiff's back.
In the end I am not able to reach the conclusion that the incidents in this case, assuming they did occur on successive days, involve essentially or substantially the same facts. As I said, this is somewhat academic. It seems to me not necessary to make any order in respect of this matter either by way of granting leave to the plaintiff to amend or by striking out any part of what is in the defendant's desired final pleading, Exhibit 1.
What I do have to do against the Court of Appeal determining that I am in error in concluding that the plaintiff has failed to make out his case against the defendant is assess damages. That is a difficult exercise because there are so many possibilities. I ought to make clear I am assessing damages on the basis that the plaintiff had established that what Dr Eastwell says about him is correct and, furthermore, the defendant's responsibility.
I would assess general damages for pain and suffering in the sum of $18,000. I would allocate $15,000 of that to the past and interest thereon at 2 per cent for six and a half years, which comes to $1,950. Past economic loss I would assess at $60,000, inclusive of interest. The plaintiff on workings appearing in Exhibit 30, which have not really been contentious at the trial, has lost much more than that, however discounting is essential.
There has been a failure by the plaintiff to seek work, although the material demonstrates that some work is within his capability, I bear in mind when assessing this head that the defendant would not permit the plaintiff to return to work. It was certainly clear he wanted to. He told Dr Douglas he hoped to get back to work in two or three months; he stormed out of the consultation when pressed by the doctor to say why it was that he expected the situation to improve in that time when he had not been able to work for the previous six months.
In respect of future economic loss, I think it is appropriate to make an allowance while the plaintiff settles down, as Dr Eastwell says he will; I would allow $10,000.
There are specials as per Exhibit 13, which Mr Samios tells me aggregate $1,489.36. It is perhaps idle to total those items, except to expose myself to the risk of my arithmetic being found in error, but the total seems to me to be $91,439.36.
The order that I make is not for damages in that sum, but rather the plaintiff's action is dismissed with costs, including reserved costs, to be taxed.