Ellis v Fellenberg[1998] QDC 214

[Before McGill SC DCJ]

[VL Ellis v RB Fellenberg & Suncorp General Insurance Ltd]

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JUDGMENT

Judgment delivered: 28 August 1998

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REASONS FOR JUDGMENT - McGILL SC D.C.J.

Delivered the 28th day of August 1998

The plaintiff was injured in a motor vehicle accident on 31 March 1994 while travelling as a front seat passenger in a car driven by the first defendant. The car was speeding and rolled over. The plaintiff suffered some injuries, although fortunately they were relatively minor, as she was wearing a seatbelt at the time. Another passenger in the vehicle was killed in the accident. Liability was not in issue at the trial, and it remains to assess the plaintiff's damages. In the trial, the principal issue was the extent and consequences of the plaintiff's problems with her lower back as a result of the accident.

The plaintiff has no recollection of the actual accident. After the accident, she was taken to the Toowoomba Hospital where she was found to be fully alert and orientated. She had a deep laceration behind the left ear which was sutured, and other lacerations or bruising to the head, neck, shoulder, arms and back: Exhibit 3, Exhibit 17. The plaintiff was complaining of a mild headache and was kept in hospital overnight for observation, but x-rays of the skull, cervical spine, chest and left ankle revealed no evidence of fracture: Exhibit 3.

Medical Evidence

On 5 April 1994, the plaintiff was examined by a general practitioner, Dr Lockwood, at the request of Toowoomba Police: Exhibit 1. Apart from the injury behind the left ear and the various bruises and abrasions, he referred to tenderness in the left side of the jaw, but otherwise the examination deals only with matters that the doctor could observe. I think the reason for this is that it was not an ordinary medico-legal examination, but was obtained in the context of a police investigation into the circumstances of the accident. The first defendant was charged with an offence arising out of the accident, and defended the charge by claiming that it was the plaintiff who was driving the vehicle at the time: p. 17. In those circumstances, the police were interested in the plaintiff's amnesia, and would have wanted to ascertain from the doctor matters which the doctor could observe himself, rather than recording complaints of pain which would have to be the subject of evidence from the plaintiff as a witness in the criminal trial. In this context, the absence from Exhibit 1 of any complaint of pain in the lower back is not as significant as it would be in an ordinary medico-legal report.

Dr Lockwood referred the plaintiff to a psychologist, Mr Fox, who saw the plaintiff on 6 April and 13 April 1994: Exhibit 2. This report, however, does not record complaints of physical injuries. It notes some depression consequent upon the accident, but Mr Fox thought that the response to the trauma was within the limits of normal, and did not observe any overt signs of psychopathology or undue anxiety. He provided a relaxation tape, and noted that on 13 April the plaintiff reported significant improvement.

The plaintiff said that after the accident she was in a great deal of pain. She could not move her head, her neck was sore, and there was pain in her lower back: p. 10. Her mother, who gave evidence, said that for a while after the accident the plaintiff was getting around at home like an elderly lady, shuffling around, and she needed support walking: p. 42. She also needed to help the plaintiff showering, dressing and going to the toilet.

On 22 December 1994 the plaintiff saw a neurosurgeon, Dr Leigh Atkinson, for the purposes of a report: Exhibit 4. At that time the symptoms disclosed to Dr Atkinson included pain in the left mandible aggravated by eating especially with chewing and biting, which meant for example that she could not bite into an apple. She also claimed low lumbar pain which tended to fluctuate. She said that pain in her neck had settled. The plaintiff said during the trial that she still had pains in her neck occasionally: p. 38. This is not necessarily inconsistent with what was said to Dr Atkinson, if the pains are fairly rare. Dr Atkinson found a full range of neck movements, and a full range of spinal movements.

Dr Atkinson did not expect any long term complications from the head injury or the neck injury. He thought there was some tenderness and some asymmetry in the temporo-mandibular joint and recommended that she be seen by a facio-maxillary surgeon. He said that the laceration behind the left ear had healed satisfactorily. He also thought that there had been a low lumbar spinal injury which may have been a soft tissue injury, which he expected would gradually resolve and which might be helped by physiotherapy. The plaintiff said that she had physiotherapy shortly after the accident (p. 38), but it had not helped and she did not persevere with it: Ex 5. I took it that she had not tried physiotherapy since.

The plaintiff was seen by a facio-maxillary surgeon, Dr Moloney, who apparently examined the plaintiff in March 1997, because his report is dated 10 March 1997: Exhibit 7. He found a very soft click in the left temporo-mandibular joint and thought the plaintiff probably had an internal derangement of the joint which was not uncommon after direct or indirect injury. The prognosis was good, although it was possible that the clicking would be permanent. There was some risk however that the condition could worsen, and require further investigation. For present purposes, he recommended conservative treatment by way of a dental splint. That has not yet been undertaken by the plaintiff.

The plaintiff was examined by an orthopaedic surgeon, Dr Whittle on 4 November 1996, for the purposes of a medico-legal report: Exhibit 5. The plaintiff, when giving her history to Dr Whittle, said that she became aware of the back discomfort the day after injury, when she noted trouble sitting and lying in bed. The plaintiff had informed Dr Whittle of the various problems which she referred to in evidence as continuing difficulties. She finds sitting or standing for long periods of time gives significant pain in the lower back, and after working four hours as a waitress in a coffee shop, she has to go home and lie on the floor or on a bed for a time to become comfortable: p. 11. This is because the work causes pain in the back. She also has difficulties with long car journeys; she had to stop twice in the course of driving from Toowoomba to Brisbane in order to get out and stretch her back: p. 11. She avoids going to movies because she cannot sit in the chair for long enough, and has given up physical sport. She works part time as a waitress, about 20-25 hours a week (p. 11) and she is able to manage this, with some difficulty, because her employer is sympathetic and she gets a break if she has to work a longer shift: p. 12.

X-rays taken in late 1994 were normal and Dr Whittle did not have the plaintiff re-x-rayed. On examination he found a marginal restriction of spine motion, and straight leg raising was restricted slightly from back pain. Exhibit 5 refers to “some soft non-organic features present”, and when this was raised in cross-examination, he referred to five tests which he administered to detect symptom magnification which produced one positive and one mildly positive result, out of five: p. 59. This was why he concluded that this was of doubtful significance: Exhibit 5. His impression was that the plaintiff was experiencing loss of movement because of pain, (p. 58) and my overall impression is that Dr Whittle thought that the plaintiff was genuine.

Dr Whittle assessed the permanent impairment at 3% of the whole person: Exhibit 5. This assessment was made on the basis of the American Medical Association Guidelines (p. 57) and does not take into account pain as such, assessing rather loss of function in the spine (p. 61).

Evidence was given by Ms Thornton, an occupational therapist, who had examined the plaintiff at the request of the defendant on 20 July 1998 (p. 29) submitting a report the following day: Exhibit 20. She noted that the plaintiff had not undergone any formal rehabilitation process involving pain management strategies. She thought that if those things were put in place, the plaintiff may well be able to go on and work full time and do more than she was currently doing: p. 30. The object of the exercise would be alleviation of symptoms or helping the plaintiff cope with her current level of pain and perform activities at home and at work more effectively: p. 31. Dr Whittle was less optimistic about the prospects of improvement from a course of this nature. He thought that it was possible that her symptoms could be lessened by it, but he could not speculate about the possible effect of this on her future: p. 60. Ms Helen Coles, who had examined the plaintiff twice, on 2 June 1997 (Exhibit 8) and on 24 March 1998 (Exhibit 9) was also cautious about the benefits available from a rehabilitation programme, although she did support the plaintiff's undergoing such a programme: p. 56. Specifically she thought that, without substantial improvement, work as a child care worker would not be appropriate and, in this respect, she disagreed with Ms Thornton. Overall I think that it would not be appropriate to proceed on the basis that such a programme would restore the plaintiff's working capacity, although it would probably help to some extent both in working and being able to cope with life generally.

Failure to Mitigate

Some point was made in cross-examination of the plaintiff's failure to undertake such a course in the past, or indeed her failure to obtain any medical treatment for the back condition. Indeed, after I pointed out that there was no pleading that the plaintiff had failed to mitigate her damages, leave was sought to amend the Entry of Appearance and Defence for the purpose of raising such a pleading. It was however submitted that it was unnecessary to plead such a matter. When dealing with an issue like this it is necessary to distinguish between the process of proving the extent of the plaintiff's disability as a consequence of injuries for which the defendant is responsible, where the onus lies on the plaintiff, and an allegation that if the plaintiff had undertaken some particular form of treatment, or more generally had pursued some particular course of action, which it was reasonable to undertake or follow, the consequences of the injury would not have been as bad as they are. That is an allegation of a failure to mitigate, and the onus of establishing such failure is on the defendant. To establish failure to mitigate, it is necessary for the defendant to prove that there was some particular step which the plaintiff ought to have taken, that it was reasonable for the plaintiff to have taken it and that it would probably have improved the plaintiff's condition if it had been followed. See Lorca v. Holt's Corrosion Control Pty Ltd [1981] Qd.R. 261; TCN Channel 9 Pty Ltd v. Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 at 158. The question of whether it is reasonable for the plaintiff to have taken that step is an objective test, but must be applied in the light of the plaintiff's particular circumstances, including the advice that the plaintiff had been given. Fazlic v. Milingimbi Community Inc (1982) 150 CLR 345.

Such an issue is commonly pleaded by a defendant: Prus-Crzybowski v. Everingham (1986) 87 FLR 182 at 185. In my opinion, if such an issue is to be properly litigated, it needs to be pleaded expressly by a defendant, so that the plaintiff knows the case that has to be met. It should also be properly particularised.

Under cross-examination the plaintiff said that she had not been back to the Toowoomba Hospital for more physiotherapy, but did not have any reason for having failed to do so, other than the fact that she had been controlling her back pain by lying down: p. 38. She also had no particular excuse for not seeking medical treatment for her back, although she said it did bother her: p. 39. There is however no evidence that if the plaintiff had sought medical assistance anything very helpful would have been achieved. Dr Atkinson's report indicates that, if he had been asked about the medical treatment for the plaintiff in December 1994, he would have said that he expected the pain to resolve gradually and that she might be helped by physiotherapy: Exhibit 4. Dr Whittle's evidence does not suggest that he would have recommended any particular course of treatment to the plaintiff had he been asked about the matter, and indeed he was not very optimistic about the course of treatment suggested by Ms Thornton. In these circumstances there is simply no evidence upon which I could conclude that, had the plaintiff sought medical assistance during this period, she would have been given a course of treatment which would have produced any significant improvement. She had tried physiotherapy previously and did not feel that it produced any improvement, although I suppose it may be that without it her condition would now be worse.

In any case, I am not persuaded that it was unreasonable for the plaintiff not to have sought medical advice in relation to her back. It is not as though she was not aware of the cause of the back problem; it arose from the motor vehicle accident and was attributed to that accident. The condition has not gone away, and indeed Dr Whittle regarded it as stable (p. 57) but it does not appear to be getting any worse, and it is controlled in a practical way by avoiding activities which aggravate the back, and by resting on a flat surface after work: p. 11. No doubt if the back were suddenly to become significantly worse, the plaintiff would seek medical attention, but I do not find the plaintiff's failure to obtain medical assistance for her back unreasonable in all the circumstances. Accordingly, I would not regard the evidence in this trial as capable of supporting a finding of failure to mitigate on the part of the plaintiff, so there is no point in allowing the amendment to the Entry of Appearance and Defence, and it is therefore refused.

Loss of Earning Capacity

The next issue was as to the effect which the plaintiff's injuries had on her earning capacity. In 1994, the plaintiff was in Grade 12 at the Toowoomba State High School (Exhibit 12) although she was on holidays at the time of the accident: p. 20. She said that after the accident her grades slipped, because she could not concentrate: p. 16. She also found it difficult to sit in a chair for too long while studying. Certainly the marks achieved in 1994 were noticeably worse than in 1993, where percentages are given, and generally worse in the second semester than in the first semester of 1994. It is also notable that health and physical education, in which she had been doing very well in 1993 and 1992, dropped significantly, particularly in the second semester in 1994.

The plaintiff said that there was another way in which the accident affected her, because the first defendant who was charged with a criminal offence arising out of the accident claimed that it was the plaintiff who had been driving the vehicle and the plaintiff said she lost a lot of friends over this because they thought that she was the cause of the accident: p. 17. That, she said, also made her depressed.

A question arises whether this is part of what is claimable in the present action. The pleading seeks damages for injuries suffered in the accident, and this depression, although a consequence of the accident in a general sense, was not caused by the accident in the legal sense; it was caused by the assertions after the accident by the first defendant that it was the plaintiff who was the driver of the motor vehicle. The accident was a causa sine qua non of this condition, but that I think is in the present circumstances insufficient; I do not think that the accident was the cause in the legal sense, and damages for the relevant consequences of the first defendant's claims about the plaintiff are not in my opinion recoverable in this action. That makes it more difficult to know to what extent the plaintiff's results were affected as a consequence of the accident, but it is understandable that pain would interfere with concentration, and I find that the plaintiff's results were adversely affected by her injuries.

The plaintiff said that she had always been interested in working with young children, and had, prior to the accident, hoped to do a TAFE course to get a diploma in child care so that she could get a qualified job: p. 15. This involves a two year course, and there is also a post-graduate course for which a further two years are required. There was evidence that an Associate Diploma of child care could be taken at the TAFE college after two years of full time study, which would qualify successful candidates for a position as a group leader: Exhibit 18. In order to secure admission to that course, it was necessary to obtain a result of OP12 in 1995, although some OP13 candidates gained entry: Exhibit 19. Exhibit 18 also refers to a certificate for child care which requires one year's full time study to qualify a successful candidate to work as an assistant child care worker; there was no evidence as to the admission requirement for this course, or that the plaintiff was prevented from obtaining admission to this course by the disruption associated with the accident. The plaintiff's position was that she was hoping to improve her marks in 1994: p. 21. It may be that the effect of an answer given on p. 26 was that she did not qualify for entry to either course at the TAFE college.

She said however that she could have qualified for employment as a nanny, attending a private tuition course which had more modest entry requirements, namely a Grade 10 certificate: p. 49. A friend of hers who had left school after Year 11 had attended this course and qualified: p. 49. She had then worked as a nanny for about six months until she left to take up a full time job in the hospitality industry: p. 51. While working as a nanny, she was earning $350 to $400 per week. She said that there was a good demand for live-in nannies in both Toowoomba and other areas. The plaintiff's mother said that she would have been prepared to pay the cost of this course: p. 44. The plaintiff said that she was deterred from doing the course because she felt she could not lift children because of the pain in her back: p. 15. The plaintiff had taken some practical steps to pursue such a career before the accident, having worked during school holidays in a child care centre in Melbourne: pp. 15, 20, 44. Her mother also confirmed that the plaintiff had always had an interest in looking after young children.

In fact since the accident the plaintiff has worked in a number of positions: Exhibit 21 and see p. 25. In the first half of 1995, she worked as an office clerk for Willcarp Pty Ltd, and for a short time as a ticket seller, but subsequently she has worked as a waitress, since July 1997 for the same employer. There was also significant unemployment during 1995-96, on the basis of the unemployment benefits paid (Exhibit 14) and rather less in 1996-97, Exhibit 15. That suggests that the plaintiff is becoming more established as a regular waitress, but she said that her current position is only part-time because it involves 20-25 hours per week. The effect of her evidence was that at the moment she would have difficulty in working much more than that, as a waitress.

It was argued that if the plaintiff were really interested in working with children there were still opportunities available to her, but I think there is force in the proposition that if the plaintiff is restricted in lifting because of the condition of her back, it is reasonable for her to feel deterred from working where she would have to lift children. Older children will require less lifting, but when they do need to be lifted they will place a greater strain on a sore back. This difficulty may be reduced by the sort of course contemplated by Ms Thornton, but Ms Coles was of the opinion that even with the benefit of such a course, working in child care was not indicated unless a substantial improvement could be achieved: p. 56. In view of her evidence at p. 53, I thought that the plaintiff was never going to be a suitable candidate for that kind of work. In general I prefer Ms Coles' approach, and I do not think that the plaintiff is likely to be suitable for work in child care even with the benefit of some rehabilitation course. On the other hand, the rehabilitation course should help to some extent, and would probably improve her earning capacity above its present level. It should make it easier for her to cope with a job as a waitress, and thus make it easier for her to work longer hours and earn more.

The real difficulty is in knowing what the plaintiff's career prospects would have been had the accident not happened. No doubt the accident did significantly disrupt the plaintiff's final year at school, but I am not persuaded that even without this, the plaintiff had more than a slight chance of qualifying for a TAFE Associate Diploma course. However, the plaintiff may well have obtained some form of employment in child care on some other basis, which would probably have been less remunerative. Unfortunately Exhibit 18 does not give rates for assistant child care workers. There is also the consideration that the plaintiff would not have been working during any of the period of training, so that, had she undertaken the two year TAFE course, she would have been actually worse off financially in the period up to trial. Put at its highest for the plaintiff, she could have completed the nanny course in early 1995 and then worked since then at $400 net per week, which would have produced a loss to trial of about $28,000, but I think that that is better regarded as the outer limit of the range of possible hypothetical outcomes rather than a realistic guide to what would have happened but for the accident.

In a case such as this, I think it is not realistic to attempt to determine past economic loss as a matter of calculation. It is not difficult to conclude that the plaintiff would have lost some income in the period up to trial; apart from anything else, had it not been for the back injury she could undoubtedly have worked longer hours and more effectively as a waitress, which would have made her a more attractive employee and improved her earnings on that basis. She may well have qualified as a nanny and worked for most or part of the time in that position. I think the correct approach is to make a global award in the light of such assistance as is provided by the evidence: Suncorp v. Fitchett (Appeal 2648/96,6.5.97). On that basis I assess past economic loss in the sum of $15,000. This includes loss of income from babysitting; the plaintiff said that she had earned $400 as a babysitter in 1994, but was unable to do similar work in 1995 because of her injury: p. 14. Interest should be allowed from the time when she was in the work force, on the balance after deducting social security payments of $3,132 (Exhibits 14 and 15): Shield Contractors Pty Ltd v. McGill (Appeal 4632/96, 21.10.97).

Implicit in this conclusion is a finding that the plaintiff does suffer pain in the lower back which is a real problem for her. It was argued that the plaintiff was exaggerating her symptoms, and that a failure to obtain medical advice or to pursue physiotherapy or other options indicated that the plaintiff's back condition really was not all that serious. The plaintiff's mother provides some support for a change in the behaviour and personality of the plaintiff after the accident (p. 43), which is consistent with chronic back ache, and overall I do not think there is sufficient reason to reject the plaintiff's evidence that she suffers back pain which causes her a variety of problems. No doubt it is particularly distressing and disruptive to her because, prior to the accident, she had been quite physically fit. She used to run regularly, and was involved in Australian Rules football, where she was a boundary umpire: p. 42. After the accident she was not able to cope with this (p. 12) which would have been disappointing. Some continuing frustration associated with physical limitations was reported by Mr Fox who saw the plaintiff again in February 1997: Exhibit 6. He thought however that her depressed mood and concentration difficulties had resolved. He felt that the plaintiff was tending to minimise her difficulties, and that I think is consistent with her avoidance of medication and not having sought medical treatment, although I did not think that in the witness box the plaintiff was particularly minimising her difficulties.

With regard to the future, I accept the evidence of Ms Coles that the consequence of the accident is that the plaintiff's range of occupational opportunity has been narrowed: Exhibit 8. In particular, she ought not to be employed in work which involved heavy lifting, and may well be unable to work full time in other work even if she undergoes a full rehabilitation course, which I think is appropriate now. She said that she would be willing to undertake such a course, and there is evidence that the cost of such a course would be about $3,000 to $4,000: p. 35. That course may enable her to work normal hours, but not I think doing heavy lifting. On the other hand, it may not, and that introduces a further variable which is relevant to the assessment of future economic loss.

In the circumstances I think that the matter is best approached by assessing a global figure which takes into account the various matters to which I have referred. It is also appropriate to take into account the fact that the plaintiff's mother works and so did her mother and grandmother: p. 44. The plaintiff also said that she hoped to marry and have children, and that her own children may well have kept her out of the workforce: p. 24. The actual answer here needs to be understood in the context of the question which was whether it may have kept her out of the workforce for a long time. It does not establish that it would have done so, and the family history coupled with the general practice in the community today suggests that a more likely outcome would be that the plaintiff would have returned to the workforce either within a few months or perhaps a few years of the birth of her children. The age of the plaintiff is also significant. She was born on 3 May 1976 (p. 8) and is therefore now 22. Future economic loss has to cover a long period. The plaintiff in 1997/98 earned about $230 net per week working part time, say 25 hours per week: Exhibit 15, p. 13. If she were working 40 hours per week at the same rate, this would mean about $350 net per week (allowing for the increase in tax rate). The present value (at 5%) over a loss of $120 per week over 40 years is $108,264, but this is not a realistic measure of the plaintiff's economic loss. But for the accident the plaintiff would not have been working for the next 40 years full time as a waitress. There would probably have been some time, perhaps a lot of time, when she was not working at all; on the other hand, she may well have done some more remunerative work for part or all of the time. She may well still, with some rehabilitation, be able to work full time as a waitress or in some other light work, for as long as she would ever have worked, but she may not, and heavier work, which may have been more remunerative, seems to be closed to her.

I was referred to a number of other cases where future economic loss in the order of $90,000 to $125,000 was assessed: Bowler v Waldeck (Robin AJ, Writ 1151/88,15.11.91); Osborne v Bone (Moynihan J, Rockhampton, Writ 108/87, 20.6.88); Sorensen v Selway (Botting DCJ, Maryborough Plaint 12/90, 5.10.93); Fidler v Green (Pratt DCJ, Mackay, Plaint 68/90,22.10.92). This last case went on appeal, but the award was not interfered with: Appeal No 235/92,12.3.93. I have also had regard to the approach of the Court of Appeal when assessing damages for future economic loss at $50,000 in the case of a young man who had suffered a shoulder injury which prevented him from doing heavy manual work, and whose realistic employment prospects were therefore significantly curtailed: Australian Meat Holdings v. McRoberts (Appeal 4295/97, 28.4.98). I think the present plaintiff is worse off than he was, since at present she is unable to work full time as a waitress because of her back, and it is not clear that that limitation will necessarily be overcome by the rehabilitation course. There are also a number of other differences in detail which operate the same way. Overall I think a reasonable allowance as a global figure for future economic loss is the sum of $60,000.

Other Matters

With regard to pain and suffering and loss of amenities, the plaintiff has been left with a back which causes continuing problems, although I think that with proper rehabilitation the problems will probably diminish. Nevertheless, the plaintiff will have some pain in the back most of the time, and from time to time will do things which will aggravate the back and make it more painful. In the future, coping with her own family is likely to be more difficult and more painful than it would otherwise have been. She has some continuing problems with her jaw, which restrict the food that she can eat; for instance she cannot bite into an apple, and chewing in cold weather makes her jaw ache: p. 10. It may be that this condition can be improved by a dental splint, but there is some risk that it could worsen and require more substantial treatment. The scar from the injury behind the left ear is ordinarily covered by hair, and the other injuries appeared to have cleared up satisfactorily. The plaintiff's condition is stable. The figure of 3% loss of function I think really understates the consequences of the accident to the plaintiff, because pain which is not reflected in that figure is of greater significance to her than the loss of mobility in the spine. The immediate aftermath of the accident would have been quite painful and distressing. The plaintiff's sport and recreation has been effectively destroyed, no doubt diminishing her physical fitness, and her ability to enjoy social activities and even such a simple thing as a long car journey has been impaired. On the whole I think an appropriate award for general damages is $32,000, of which I apportion $8,000 to the past. This would bear interest at 2% for 4¼ years.

Special damages are agreed at $1,776, of which $1,100 represents out of pocket expenses (Exhibit 10) and so should bear interest at 10% for 4 years. A separate claim is made for loss of superannuation benefits; this is a difficult area, but some allowance is now commonly made as a percentage of the award for economic loss, usually 5% and I will allow 5% of the total economic loss payment as a lost superannuation benefit. I think allowance should be made for the cost of a rehabilitation course ($3,500) and the cost of a dental splint, which was admitted at $200. The figure of $700 is agreed for gratuitous care, and it should carry interest in the agreed amount of $53. There is evidence from the plaintiff's mother of continuing inability on the part of the plaintiff to do certain more strenuous housework activities, although this has to be assessed in the light of the fact that the plaintiff is still living at home: p. 42. It may be that the rehabilitation course will obviate the need for such assistance, but in view of the cautious approach to the likely outcome of such a course, in the evidence of Dr Whittle and Ms Coles, I think it is reasonable to proceed on the basis that there is some real risk that the course would not produce that result, and make some allowance for the risk that the plaintiff will be left with some continuing need for some domestic assistance in the future as a consequence of the back problems. I will allow the sum of $5,000 to cover this.

Summary

I therefore give judgment for the plaintiff against the defendant for $122,676.00 together with $3,250.00 for interest.