Partridge v Comber[1998] QDC 262

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REASONS FOR JUDGMENT - SAMIOS D.C.J.

Delivered the 6th day of October 1998

The plaintiff is a married woman who was born on 19 September 1965. The plaintiff alleges she suffered personal injuries in a motor vehicle collision on 22 October 1996 (the accident).

Liability for the circumstances of the accident has been admitted by the defendants. What remains is the assessment of the plaintiff's damages.

The plaintiff gave evidence that in the accident she was stationary in the vehicle driven by her waiting to merge with other traffic and was struck from the rear. She was not anticipating that an accident was going to occur. She was leaning forward and looking to her right. Although in the impact she did not strike anything as such, she did fall forward and then back into the headrest of the car. She said later that day she started to experience neck and shoulder pain that led to headaches. Her symptoms became more intense and prolonged. She said that prior to the accident she had been healthy and fit, and had not suffered any symptoms in her neck, or headaches of the sort that she began to suffer after the accident. The symptoms affected her in her day to day activities.

Although the plaintiff did not see a doctor for her symptoms, she did receive physiotherapy on 11 occasions from the Junction Road physiotherapy practice at Clayfield. Her husband, who is also a physiotherapist, provided massage and other treatment, including the provision of cream and a piece of equipment called a Stabiliser. The plaintiff also took panadol and an anti-inflammatory agent. The plaintiff also said that she required help from her husband and her mother and mother-in-law or friends for assistance in and around the house. The plaintiff has two young children. One was about 18 months of age and the other about four weeks of age at the time the plaintiff suffered her injuries. Most of the assistance required by the plaintiff was required in a period between the accident and about February 1997. After February 1997, the plaintiff said that she could basically do whatever duties she needed to do around the home, although she did them with the knowledge that she was limited in some things, and tried to avoid doing things that might cause further pain. She also said that she would carry out some duties, knowing that they would cause pain, but she knew that she could get relief from the massage that her husband provided.

The plaintiff's evidence was that her symptoms continued, but that by the time of trial the symptoms were less than what they were initially in that the plaintiff had improved, but nevertheless they have continued. By the time of trial, the plaintiff's position regarding her symptoms were that during the week her symptoms were such that stiffness and soreness would build up during a week of doing activities, and that by the end of the week the pain was at its height and that was when the headache would occur. She said that her symptoms were worse towards the end of the week after her normal activities during that week. She said in particular, sitting for extended periods tended to cause stiffness and soreness, and a lot of daily activities around the home added to the symptoms.

Besides the pain and suffering endured by the plaintiff following the accident, the impact of her symptoms was such that the plaintiff claimed she had to leave her employment. That is, at the time of the accident the plaintiff was on maternity leave. When she returned to her employer, Levi Strauss (Aust) Pty Ltd, (Levi Strauss) towards the end of April 1997, by about the third week after her return to work the company announced changes regarding the employees' employment, including the employment of the plaintiff. The effect of these changes the plaintiff said were that she was offered a higher position which involved more travel than what she had been doing. The plaintiff was employed as a sales representative. She had been with this company since 26 January 1986. The position involved a lot more driving and further distances than what she had been doing. The plaintiff said the effect was that doing these long distance trips caused her pain and headache to the point of having to cancel appointments with customers. She became worried about what was expected of her because the pain that she suffered was more than she had suffered in the weeks leading up to doing the driving trips. Her territory changed when she returned to her employer. Whereas her previous territory involved Brisbane to Bundaberg and as far south as Grafton and basically west, the new position was that territory plus North Queensland as well, as for as Cairns. She said that if she had not had the symptoms she was suffering from, it was a job she would have been able to cope with. The plaintiff described the position she had with this company as one she wanted and one that she could deal with despite having two young children. She said in evidence she had a very good support network. Even though her new child was only four weeks old, she had put in place the support necessary to allow her to pursue her career. She described in evidence having been with the company for 11 years, and that she loved the job and loved the sales involved in the job. Not only did she have a significant salary, but also a fully maintained company car and incentive bonuses at the end of the year for reaching targets. Subsequently the plaintiff resigned from her employment with Levi Strauss and was given a termination package. Although her letter of resignation states that the factors behind her decision to resign included a desire to pursue other work interests, she did state in her letter of resignation that one of the factors behind her decision was an increase in neck and shoulder pain after her first week back at work from maternity leave. In the letter of resignation, the plaintiff referred to the accident, the subject of this action, and stated that the sales trips she had undertaken in the immediate week on return from maternity leave involved several country related trips that were not favourable to her neck and shoulders, and “This has been a significant factor in reaching this decision”. The plaintiff said the reference to the desire to pursue other work interests came from the realisation by her that she could not do the job required of her by her employer.

Her employer accepted her resignation and in light of her long term employment, offered her the package that included a number of financial considerations, including what appears to have been four months wages in lieu of notice in the sum of $13,906.33. The plaintiff said in evidence that thereafter she applied for a few other sales positions but once the interviews proceeded further towards finalisation, it became apparent these positions involved travel and the plaintiff pulled out basically for that reason. When she found out with respect to one sales position the actual extent of travel that she would be doing, she pulled out.

The plaintiff in evidence confirmed a work history which reflected the plaintiff's average earning capacity prior to the accident to be approximately $657. With more precise dates during which the plaintiff had taken leave from her employer prior to the accident, the plaintiff's average earning capacity was slightly less, however, for the purposes of the plaintiff's claim for economic loss, the difference between what the plaintiff had been earning prior to the accident and what she could earn with a subsequent employer was still in the order of $200 per week.

The subsequent employer was the Commonwealth Bank. The plaintiff took up her position with the bank on 3 December 1997. The position was as a sales and service representative, and did not involve car travel. The work involved taking calls from customers and doing the banking by phone for five hours per day. This position paid the plaintiff approximately $325 - $330 nett per week. Further hours have not been offered to the plaintiff at this stage. She said in evidence that if more hours were available she did not think that she could cope with the extra hours. She said that even with the five hours that she does, sitting for extended periods does cause pain, so that even now she tends to get up and walk around at work. Whether she could actually do more than five hours she does not really know, although she did say that at the present time she would not be able to do the extra hours. She said she is still experiencing pain and discomfort during the week between what she does at home and the hours that she does at the bank.

Shortly in November of this year the plaintiff intends to go with her husband to Canada where he has accepted a position. On the evidence, it appears that for the six month period involved with her husband's overseas position, the plaintiff will not earn any income in that time. However, although the plaintiff has resigned her position with the bank because she had to do so as she has not been in employment with the bank for 12 months, her performance in her work there has been such that a senior manager has stated to the plaintiff that the job will be held for her and she certainly intends to take it up when she gets back to Australia. Further, the bank has indicated to the plaintiff that she has a future with the bank, and that she hopes that in the future, she can further her career with the bank and even gain a full time position. The plaintiff said she hoped to increase the number of hours working from 25 hours, and she thought that she would be capable of working more than 25 hours per week. The next step up for the plaintiff would be the position of a lead sales service representative. She hoped to obtain that position and earn more than she is earning at the moment. She did not know how much more she might earn. The end result though was that the plaintiff did not know when she might start in this position, because the position has to become vacant, and if she applies, it is still a matter of whether she is accepted for the position or not. At this point in time she has only started the training, and is now interrupting the training by going overseas. Another factor as to whether she obtains the position is whether there would be a vacancy at the time of her application.

It was put to the plaintiff during cross-examination that when she applied for the position with the bank, she was required to fill in a medical questionnaire. This became Exhibit 10. This document was signed by the plaintiff on 20 November 1997. It deals with personal medical history, and the plaintiff answered in the negative, questions to the effect of whether she had ever had an accident or illness for which she applied or intended to apply for third party accident claim, whether she had ever been on restricted duties for more than two weeks, whether she had at the present time any disability, whether she was then suffering from or had ever suffered from pain, severe headaches and migraines. It was submitted the effect of this representation to the bank in the context of the plaintiff's claim in these proceedings was to affect the plaintiff's credibility and lead to the conclusion that the plaintiff was not suffering the symptoms she claimed she was suffering from, at least between the date of this questionnaire and up to and including the trial.

The plaintiff said in evidence that in filling out the questionnaire she was wanting to get the position. Further, she filled it out thinking that she was a healthy person and that is what the employer was after and she felt that she was healthy and capable of doing the job that was at hand. That was notwithstanding she was still suffering neck pain and headaches. As she wanted the position, she filled it out as a healthy person. As she has, in fact, been able to perform her duties for the bank, I find the plaintiff has not misled the bank. I find, consistent with the plaintiff's evidence, what has been the lot for the plaintiff is to do her work for the bank, and by the end of the week the effects of her injuries build up, and the pain is at its highest and then headache occurs. In this context, she was a healthy person to apply for and perform the work required of her. I consider it is to her credit she tried to find work and did find work, rather than sit back as she might have and claimed more damages against the defendants.

A number of medical practitioners gave evidence regarding the plaintiff's injuries, and what permanent effect (if any) her injuries have had upon her.

Dr. Todman, a neurologist, considered that the plaintiff's current symptoms were likely to be permanent. He estimated a 15% permanent partial disability related to the cervical spine. He also thought there was a possibility of an increased rate of degenerative change in the cervical spine occurring as a consequence of the injury. He thought this may cause an increase in symptoms in the next 10 to 15 years. Included in his assessment of disability was an allowance for the additional amount of symptoms related to the plaintiff's chronic headaches. An issue arose between the plaintiff and the defendants on the medical evidence as to whether the plaintiff's headaches after an initial period of some headaches, were caused by the accident. That is, Dr. Cameron, a consultant neurologist called by the defendants, was of the opinion that the headaches the plaintiff was experiencing when seen by him in May 1998, were migraine headaches that he would not relate to any direct or indirect effect of the injury at that stage. Therefore, he concluded the headaches the plaintiff was experiencing were unrelated. When this was put to Dr. Todman, he did not agree that the headaches were unrelated. He did not think the headaches were suggestive of migraine in any event. Although it was also put to Dr. Todman that the plaintiff was suffering from something in the order of 1 to 2% impairment of bodily function as a consequence of her injuries sustained in the accident, Dr. Todman thought it would be more than that. The other issue between the plaintiff and the defendants relating to medical matters was whether the plaintiff had suffered injury to her facet joints or intervertebral discs. Again, Dr. Cameron was of the view that the plaintiff had not suffered injury to her facet joints or intervertebral discs because there was no clinical evidence to support such conclusion. Dr. Boys and Dr. Gillett, orthopaedic surgeons, were of the same view. It was Dr. Todman's view that the mechanism of the injury to the cervical spine had caused a musculo-ligamentous strain, and that her ongoing symptoms strongly suggested that there was additional damage to either facet joints or intervertebral discs. Dr. Todman thought it was indisputable that facet joints or intervertebral discs could be injured in a “whiplash type injury situation”. It was suggested to Dr. Todman in cross-examination that the impact the plaintiff was involved in was not a severe impact, and consequently ought not to have led to the level of symptoms complained of by the plaintiff. Nevertheless, Dr. Todman's view was that the nature of whiplash injuries is generally something that follows on low intensity forms of impact, although the exact reason for this is not clear. Dr. Gillett, in his report (Exhibit 4), had this to say regarding the nature of the accident and resultant injury:—

Dr. Tomlinson, a neurosurgeon, was of the opinion that in a acceleration hyper-extension injury to the cervical spine, structures can be traumatised, including muscles, ligaments, discs and apophyseal joints. In his opinion, in some 20 to 40% of cases, symptoms which may be debilitating persist. He referred to this as the late whiplash syndrome. That is how he would define the plaintiff's current condition. He thought the plaintiff had a 10% whole body permanent partial disability relating to her cervical spine injury.

Dr. Cameron, although not prepared to accept that the plaintiff was suffering headaches related to the accident, nevertheless accepted that the plaintiff may have suffered some headaches initially caused by the accident and that she did have discomfort in her neck which was related to the strain injury to her neck. He was prepared to accept that the plaintiff did have some residual discomfort in her neck and to accept that there was some ongoing problem. He also accepted that as to how it affects someone like the plaintiff depends on the individual tolerance to these symptoms. Even though he thought she would have temporary disturbance, he thought it was possible that she may have some permanent ongoing problems, although it was hard to tell.

Dr. Gillett was of the opinion after seeing the plaintiff on 21 April 1997, that the plaintiff would be likely to be left with some minor residual symptoms representing a permanent partial disability in the range of some 2%-3% loss of bodily function due to the effects of the accident. He did think that the plaintiff on return to work would need to break up her driving tasks. He thought that she would need to use her mirrors rather than turning her head and neck. When cross-examined at the trial, Dr. Gillett said he would agree that if the plaintiff has continued to experience symptoms even on a weekly basis then the improvement he thought in April 1997 might occur had not occurred. On that basis he agreed with the proposition that the plaintiff would have a 6% to 7% whole body impairment. He did think that she would have, as a main problem, the driving situation. He also thought it was reasonable for her to continue to take the medications that she has been taking. Importantly in the context of the plaintiff's claim, Dr. Gillett said with respect to the plaintiff's earning capacity that he thought she would physically be able to do her work, but that it comes down to what one accepts as one's quality of life. That is, if you find that you need to drive to earn your living and support your family then you put up with disability, but you might not be able to do other aspects of your overall life. He said that one might have pain at the end of your trips and be unable to participate in family activities and other things, or recreational pursuits. So he would accept that excessive driving or long distance driving could produce problems with the plaintiff's neck, and he would accept that at the end of those times she was driving that she would have pain and symptoms. On a physical basis he believed that the plaintiff would be able to do that driving, but when it came down to the overall picture of one's life, whether one continues to do that, putting up with the pain, interfering with other things, one might elect not to do that and do other things.

The other orthopaedic surgeon, Dr. Boys, examined the plaintiff in February 1998. His examination took place in February 1998. He thought the plaintiff suffered a minor disability referable to the neck. He quantified a 1-2% impairment of bodily function referable to the minor restrictions of range of movement evident. As I have said, he did not accept that the plaintiff had discal injury or facet injury causing ongoing symptoms. He distinguished between impairment and disability. He thought an impairment was an objective measure, and disability was a perception of someone's reaction to an impairment. He also thought that the plaintiff had an underlying degenerative disease of her cervical spine which was contributing to her symptoms. Nevertheless, he accepted that if one accepts the plaintiff had no symptoms prior to the accident, and has had symptoms after the accident, the accident has given rise to ongoing soft tissue strain, and possibly aggravation of the degenerative changes in the neck. That part of the plaintiff's impairment that Dr. Boys was prepared to accept as accident related, he did consider was permanent. He also considered it was reasonable for the plaintiff to change her employment if the facts as given by the plaintiff were correct.

Except for the conflict between the evidence of Dr. Cameron that the headaches the plaintiff is now suffering from are not related to the accident because they are migraine, and the evidence of Dr. Todman and Dr. Tomlinson, who accepted a relationship between the injury and the headaches, the weight of the medical evidence is that the plaintiff does have some permanent impairment which is causing the plaintiff some disability. That is, using the distinction made by some of the doctors between impairment being an objective measurement of restriction caused by injury on the one hand, and disability being how a person reacts to that impairment on the other hand, I find that the plaintiff has suffered a musculo-ligamentous strain injury to her neck which has remained symptomatic, causinga permanent impairment and a permanent disability as a consequence of the accident. However, I do accept the evidence of Dr. Cameron that the plaintiff described to him headaches she had suffered from which he would understand to be migraine headaches, and I accept his opinion those headaches are unrelated to the accident. I nevertheless also accept the evidence of Drs. Todman and Tomlinson that the plaintiff has suffered from headaches since the accident that are related to the accident. That is, some of the headaches are related, and some are not. It may well be that at the time Dr. Cameron examined the plaintiff, she described to him headaches that would fit Dr. Cameron's understanding of migraine headaches and lead to his opinion that they are unrelated. Nevertheless, I consider that the mechanism of the accident could cause the plaintiff headaches that are muscular contraction headaches and be of the kind Dr. Cameron would accept are related to the accident and cause headaches that might be confused with migrainous type headaches. That is, I was persuaded by the evidence of Dr. Tomlinson that the cervical spine is a complex structure, and the human head is a very heavy structure (approximately 20 pounds according to Dr. Tomlinson) which could be put under stress, and that consequently there is a host of symptoms that one may get in relation to muscle contraction which could be confused with a migraine. Further, that the muscular contraction type headaches could cause symptoms which lead people to describe symptoms suggestive of migraine. Further, I was persuaded by Dr. Todman that the headaches described by the plaintiff to him were of muscle tension type and tend to parallel the degree of cervical pain. Further that they are consistent with a sudden acceleration / deceleration injury to the cervical spine.

Although the percentage impairments and disabilities vary from doctor to doctor, I find the plaintiff does have a permanent impairment and a permanent disability caused by the accident, that although it may lead to a peak of symptoms at the end of a week of activities by the plaintiff, nevertheless the effect on her is significant in terms of symptoms and ongoing symptoms. The effect has already been, I find, to cause the plaintiff to leave employment that she liked and was remunerative to her. I also find the effect of the plaintiff's injures has been to lead her to seek employment within her capacity, and although she has aspirations for a full time position with the bank, I find that there is no certainty that even upon her return from Canada that she will, despite training, obtain the position for a number of reasons, but that even if she obtains the position, it may well be that over a period of time in doing the work, she may not be able to continue with the work. She thinks that she can continue with the work, however, I consider it is a matter relevant to be taken into account in the assessment of the plaintiff's damages for future economic loss that it is problematic once she engages in the full time position she may find that she cannot do the full number of hours required for that position. I make this finding on the basis that the plaintiff has already experienced the need to leave one job, which she left because of the effects of the driving on her injuries, and further, when she found the alternate position with the bank, she has found that at the end of a week working five hours per day which involves sitting for extended periods, does cause her pain. I also consider that Dr. Gillett's observation regarding a person's perseverance with work depends upon the quality of life that a person is prepared to accept. If the plaintiff finds herself in a full time position in the future, she may find that trying to manage that full time position with her impairment and disability, and the demands of her life outside work, she may well have to make that choice which it may be reasonable to make at that time, to limit the amount of work she performs in terms of hours which may lead, if the bank is not sympathetic to her needs, to having to find an alternative position with some other employer. I also find that in the main, her headaches are related to the accident, but that some at about the time of Dr. Cameron's examination were caused for some other reason not related to the accident. I also find her permanent disability is in the range of 5% to 6% whole body function. Further, I find that as she has suffered from headaches in the main related to the accident, because of her permanent disability she will continue to suffer headaches related to the accident into the future on a permanent basis.

In terms of the plaintiff's credibility, the defendant made submissions against the plaintiff, as I have said, based upon the medical questionnaire filled in by the plaintiff. The defendant also pointed to the plaintiff's failure in her Statement of Loss and Damage, and the lateness in her evidence-in-chief, to disclose her resignation from the bank, and the intention to go with her husband overseas. Further, the defendant pointed to the apparent earning by the plaintiff of income for “doing her husband's books” in his physiotherapy practice. Although the plaintiff had earned income “doing the books” for her husband in his practice in the financial years ended 30 June 1995 and 30 June 1996 in the sums of $5,500 and $2,500 respectively, which were referred to in the plaintiff's Statement of Loss and Damage, the plaintiff was cross-examined about the receipt of other income for the same function since those periods. She agreed with the proposition that in recent times her husband would benefit paying her something in the order of $330 per week from his practice, in that his income tax would be reduced. She agreed that the cheque butts produced by her husband showed payments of wages since 9 October 1997 of $331.40. However, the plaintiff said that in fact she has not worked on her husband's books for a long time, which on her evidence, was since the end of the financial year in 1996. Further, there seemed to be some arrangement between the plaintiff and her husband with respect to the payments being made to his wife, that these would be used to bank against some loans. While it was not suggested there was anything wrong in what the plaintiff and her husband were doing, the suggestion was made that the effect was to minimise the plaintiff's husband's tax. The submission then was made at the end of the trial that the effect of paying the plaintiff a wage was to destroy her claim for past economic loss and future economic loss. That is, this demonstrated that the plaintiff's capacity to earn income was not affected by the accident. However, there was no detail given of what exactly the plaintiff did by way of doing the plaintiff's husband's books, and in any event there was no challenge to the notion that the plaintiff, in fact, had not for a couple of years, worked on her husband's books. There was also no suggestion made to the plaintiff that if she did do her husband's books it would have prevented her from earning a level of income she was capable of earning in the work she had with Levi Strauss, or doing more hours with the bank if those hours were available. Although the plaintiff appeared to agree with the concept that she was being paid wages, and her husband agreed that a number of entries in the cheque butts related to wages paid to his wife, I am not satisfied that the plaintiff has been paid wages for doing her husband's books since the end of the financial year ended 30 June 1996. Copies of the plaintiff's group certificates for the years ended 30 June 1997 and 30 June 1998 were part of Ex 9 which the plaintiff verified in evidence reflected accurately her earnings for the relevant periods. These earnings did not include any wages paid to the plaintiff by her husband. The hearing had been adjourned at the end of the first day to permit the defendant access to the plaintiff's financial records. An order for discovery was made by me to permit this to take place. On the resumption of the hearing no complaint was made that some other document ought to be discovered regarding the plaintiff's income. On the resumption of the hearing, it appeared the defendants had subpoenaed the husband's records because I was asked to give counsel for the defendants time to inspect the plaintiff's husband's cheque butts. No tax returns or copies thereof relating to the plaintiff or her husband were tendered. Even though, as I have said, it appears the plaintiff and her husband accepted some cheque butts showed entries for wages, I am not prepared to find that the plaintiff in fact earned or was paid wages for the relevant periods. Even if she was paid wages of some amount I am not prepared to accept the receipt of that money replaces her loss being the difference of what she could have earned at Levi Strauss and what she could earn with the Bank. That is, I find that since the plaintiff left her employment with Levi Strauss she has suffered a loss of $200 per week, and that loss will continue into the future. Although the plaintiff received from Levi Strauss something in the order of $13,000 for wages in lieu of notice in about June 1997, I find that was part of the termination package which the plaintiff would have been entitled to had she terminated her employment at any stage for any reason that would require her employer to negotiate with her in the manner it appears to have done as exemplified in the letters tendered in evidence. That is, I find her receipt of that sum of about $13,000 was part of a redundancy and termination negotiated between the plaintiff and her employer.

Generally, I have no hesitation in accepting the plaintiff as a truthful and credible witness. I consider she would not have left her employment with Levi Strauss had it not been because of the effects of the accident upon her. Further, she did not sit back and claim, as she might have if she was inclined to malinger, that she could not return to work. In fact, she found alternate work. She has found that work and speaks of the future in positive terms, even though I consider on the medical evidence I have accepted she has a significant disability. She made a good impression upon me because of her answers in evidence which were, as I have said, in positive terms. That is, (a) would hope to work more hours, (b) her injuries have improved such that the effects build up over the week, (c) hopes to be trained for a higher position and obtain that position after her return from Canada, and (d) her need for her husband's treatment was not constant every day.

In all the circumstances, I consider the plaintiff ought to be allowed the sum of $22,500 for pain and suffering and loss of amenities of life.

I also consider the plaintiff should be allowed interest on the sum of $10,000 at the rate of 2% per annum for 1.94 years, which is the sum of $388.

Special damages were agreed at the commencement of the hearing in a sum of $635. Though initially the plaintiff sought to claim the cost for creams, and a Stabiliser provided by her husband, it was conceded by the plaintiff's counsel those items were not recoverable because they were provided gratuitously by her husband through his practice. However, interest was claimed, and I allow interest on the special damages at the rate of 5% per annum for 1.94 years which is a sum in round figures of $61.00.

With respect to past lost income, I do not accept the submission, as I have said above, by the defendants that the plaintiff was entitled to no past economic loss, or in the alternative to the sum of $2,820.90 for past economic loss. The plaintiff contended that the sum of $24,222 ought to be allowed for past economic loss, and I accept the plaintiff's submissions in that respect for the reasons that I find that the plaintiff would not have left her employment with Levi Strauss (Australia) Pty Ltd if it had not been for the effects upon her of her injury, and I find that she has, at all relevant times, had a diminution of her earning capacity that can be measured in the sum of $200 per week. I also accept that the plaintiff took up the employment with the bank as it met her capacity for work at all relevant times. I do not accept that the arrangement asserted by the defendants between the plaintiff and her husband to pay the plaintiff to do his books and be paid wages affects her loss. I therefore allow the plaintiff the sum of $24,222 for past economic loss.

There will be no interest on the past economic loss as the plaintiff accepts her termination package included an amount that would cover the level of past economic loss.

With respect to future economic loss, the plaintiff claims this at the sum of $200 per week for 27 years of probable working life, discounted by 50% for contingencies. As I have found, the plaintiff's loss is $200 per week and it is permanent. I consider the plaintiff ought to be allowed $200 per week by way of loss for the future for 27 years on the 5% tables, discounted by 50% for a number of reasons:—

Therefore, I propose to allow the plaintiff the sum of $77,300 for future economic loss.

I will also allow the plaintiff occupational superannuation lost at an amount of 6% which is a figure of $4,638 (Hedge & Others v. Trenerry, CA 4911/96, 7 November 1997).

Another contested issue in the proceedings was the plaintiff's claim for past Griffiths v. Kerkemeyer damages. Her claim was based on a schedule, Exhibit 7. She claimed 3½ hours per day. Some of her evidence indicated that there were matters referred to in the Schedule that the plaintiff was able to perform, and although I found some of the questions and answers doubtful in terms of their leading to a conclusion that the plaintiff could not recover for the full amount claimed by her in her schedule, considering all the concessions made and the evidence by the plaintiff that the Schedule did properly reflect the services she required to be provided by others as best as she could recollect, I consider on balance that the plaintiff ought to be allowed a third of the items claimed. That is, her claim was $5,755; a third is a sum of $1,918.

I would also allow the plaintiff interest at the rate of 2% per annum on the sum of $1,918 for 1.94 years, which is a sum of $74 in round figures.

I also accept that because the plaintiff has a permanent disability that from time to time she may have the need for some assistance to be provided by others. That might be provided by any number of persons and for any number of reasons. One of those reasons will at least be the need to receive from her husband physiotherapy for which an amount of at least $30 per a session to be provided by her husband be allowed. Dr. Gillett considered it was reasonable for the plaintiff to receive the massage if the person receives relief and enables them to function at a higher capacity, which is basically the circumstances in which the plaintiff has been receiving the massage from her husband. For how long this would last is difficult to say. Dr. Gillett accepted that there may be times when the plaintiff's condition may be worse because of various activities that she might do, and that she might require short courses of physiotherapy in those times. He thought that for the purposes of his 1997 report, the plaintiff would require two courses of physiotherapy over the next 12 months involving three or four visits per course. As the plaintiff has not improved, I consider that is the likely scenario for the plaintiff into the future. Over a year that might amount to $210 for 3.5 sessions at $30 per session for two courses per year. On a weekly basis that is about $4 per week and on the 5% tables for a period of 10 years that I am prepared to accept, that is a sum of $1,640 which I would allow for the future Griffiths v. Kerkemeyer claim.

The plaintiff also makes a claim for future pain killers and medication and it seems to me that as the plaintiff's condition is permanent, and as it has been accepted by Dr. Gillett that the amount of medication the plaintiff is taking is reasonable, it seems that an amount of $5.25 should be allowed to the plaintiff per week for future pain killers and medication. While it might be suggested this ought to continue for the rest of the plaintiff's life, I consider an amount of $5.00 per week should be allowed for 45 years on the 5% interest tables, reduced by 50% for contingencies, leading to an amount of $2,332.

The total therefore of these items is $135,708.

Therefore, there will be judgment for the plaintiff against the defendants for the sum of $135,708.

I will hear submissions on costs.