Costin v Copson [2017] QDC 183

DISTRICT COURT OF QUEENSLAND CITATION: Costin v Copson & Anor [2017] QDC 183 PARTIES: NEIL GREGORY COSTIN (plaintiff) v MARK WILLIAM COPSON (first defendant) and ALLIANZ AUSTRALIA INSURANCE LIMITED (second defendant) FILE NO/S: 983/2016 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: Brisbane District Court DELIVERED ON: 28 June 2017 DELIVERED AT: Brisbane HEARING DATE: 19, 20 June 2017 JUDGE: Reid DCJ ORDER: 1. Judgment for the plaintiff in the sum of $66,048.00, inclusive of interest. 2. I will hear argument as to costs. CATCHWORDS: PERSONAL INJURY – QUANTUM OF DAMAGES – assessment of damages – measure of damages – whether plaintiff will suffer future economic loss – where plaintiff suffers persistent neck pain – where plaintiff lives in Denmark – where plaintiff has not suffered past economic loss – where asymmetry of movement – where symptoms effect ability to engage in activities and perform tasks COUNSEL: G A Hampson for the plaintiff N R Jarro for the defendant SOLICITORS: O’Donnell Legal for the plaintiff Moray & Agnew for the defendant Allianz Australia Insurance Ltd v McCarthy [2012] QCA 312 Ballesteros v Chidlow and Anor [2006] QCA 323 Ingersole v Nancarrow [2016] QDC 315 -- 1 of 19 -- 2 Introduction [1] The plaintiff was injured in a motor vehicle accident on 4 March 2014. He was the front seat passenger in a motor vehicle struck from behind the vehicle driven by the first defendant, and insured with the second defendant. As a consequence of the first defendant’s vehicle striking the vehicle in which the plaintiff was a passenger it in turn struck the vehicle in front. A concertina collision then eventuated, involving a number of cars. [2] The second defendant has admitted liability for the accident. The only issue is the quantum of the plaintiff’s claim. Background [3] Mr Costin was born on 18 July 1964 and is currently almost 53 years of age. Although he was born in Australia he has resided in Denmark for the last 20 years. He is married with one dependent daughter who was born 22 September 2012. His wife is a school teacher. He works with a local authority in Denmark. He is a qualified painter but has experience in a number of fields, including kitchen renovations and servicing ventilation units. The work he does seems to largely involve painting, but also often maintenance of schools and old person’s homes. [4] He has a prior history of some lower back and right knee problems, to which I shall later refer, but no history of neck problems. I note a reference in a report of Dr McPhee of the plaintiff telling him that prior to the accident he woke occasionally with some neck stiffness but the plaintiff said this was a minor and occasional, and Dr McPhee did not appear to place any importance on it. -- 2 of 19 -- 3 [5] At the time of the accident he was in Australia visiting his family. He was working to assist in his brother’s sign making business. He obtained 12 months leave from his Danish employment and came to Australia in June 2013. Whilst he was in Australia his brother was jailed in February 2014 for an offence of dangerous driving. He remained working in Australia until 25 June 2014, when he returned to Denmark where he has resumed his employment with the local authority, though in a slightly altered position. [6] Prior to coming to Australia in June 2013 he was employed as a service leader. As a result of some reorganisation of the Council workplace the number of service leaders has been significantly reduced, from 14 to 10 initially, and more recently to only four. He was one of the leaders who lost their position. He is now, as a consequence, employed just as a service provider, rather than a leader. [7] He says he works a regular 37.5 hour week, and that only very limited overtime is available. He spoke of one opportunity to do overtime soon after his returning to work in Denmark in July 2014, but did not do it due to his neck pain. Otherwise there was no attempt to quantify the amount of overtime available and no attempt to quantify it in monetary terms. In his evidence he readily conceded that he has not incurred any economic loss since his return to Denmark or when working in Australia. [8] I however accept his evidence, and that of his former supervisor, Ole Bertelsen that from time to time he has either had to go home early, or taken short breaks at work. No doubt this might have some effect on his employer’s attitude to him in the future, but he said in evidence they appeared to have a more accepting attitude in his current job than in some jobs he has done in the past. [9] Past History -- 3 of 19 -- 4 [10] The plaintiff has a medical history of some interest. As I said earlier, it does not include any prior complaints of neck pain. [11] Since returning to Denmark he has seen a chiropractor, Frank Hansen who gave evidence. A written report of Mr Hansen records that he first saw the plaintiff on 12 July 2011. While the written report contained no information about the purpose of such consultations, he told me it was for low back treatment. In all he saw Dr Hansen eight times between July 2011 and 27 September 2011, and twice more in July 2012. The plaintiff did not again see Dr Hansen until 12 December 2014, some months after his return to Denmark. [12] The report shows he has seen Dr Hansen 21 times between then and 20 February 2017. He said in oral evidence he also saw the plaintiff 5 more times after then, most recently on 8 June this year. Thus over 31 months from December 2014, he has seen the plaintiff 26 times, at that I calculate a total cost of about 5225 Kroner. [13] After coming to Australia he had some ongoing problems with his right knee. On 17 September 2013 an x-ray of his right knee was performed at Redlands Hospital. He provided a history of ongoing pain for one month. The x-ray records a slight cortical irregularity perhaps due to an old injury or an anatomical variant. There was said to be a small slender ossification at the superior anterior margin of the patella consistent with enthesopathy. [14] The following week, on 24 March, he attended the Redlands Clinic and saw a Dr Golder. He reported a history of having problems with his right knee “for some years”. It is recorded that in recent times he felt it may be giving way. He got good relief with Brufen. Dr Golder’s impression was that he had a Baker’s cyst, with some -- 4 of 19 -- 5 limitation of range of movement. The doctor records that a further investigation was not required as he getting relief with Brufen. [15] The plaintiff again attended Redlands Hospital about his knee on 19 May 2014. The Emergency Department medical notes record that he had right knee pain “on and off for one year” but had noticed a lump behind his right knee for some days, more prominent when he extends the knee out. On examination there was a good range of movement but pain with full flexion. A prominent lump was observed with extension. The hospital also records the possibility that he may be suffering from a Baker’s cyst and referred him for an ultrasound. The subsequent ultrasound examination of 20 May confirmed a Baker’s cyst. [16] The plaintiff said in evidence he has no ongoing issues with his knee, and only accessional episodic problem with his lower back, which are not of real significance. I note that he did not see Dr Hansen at all from July 2012 (and only twice in all after September 2011) up to his coming to Australia in June 2013. This is in my view consistent with his evidence that his low back was not a significant problem. Consequences of the Accident [17] On the day following the accident the plaintiff attended the Redlands Clinic where he saw Dr Priest. Dr Priest’s records that the plaintiff told him he was rear ended at 40 to 50 km per hour and suffered consequent muscular neck pain. He was sent for an x-ray. [18] He attended the Redland Hospital on 10 March. A CT scan of his cervical spine on that day revealed degenerative changes of his lower cervical spine but no acute bony injury. There was said to be a slight kyphosis of the mid cervical spine, perhaps due to muscle spasm. The records of the hospital of that consultation refer to complaints -- 5 of 19 -- 6 of cervical pain and headache since the accident. Neck pain was said to have developed about 10 minutes after the accident. He was given a cervical collar and Voltaren. [19] There was no mention of any lower back pain either to his GP on 5 March or to the hospital on 10 March. [20] On 25 March he attended the Cleveland Family Practice. The notes of the practice record that he had a sore neck. Again, there is no mention of lower back pain. It is said that the neck brace and Voltaren were not a lot of help and the plaintiff thought that Naprosyn and Panadol were more helpful. He was said to be still sore and stiff in his neck which was not improving. It was noted he had seen a solicitor. He described his pain at the C7 level as a 4 or 5 out of 10, using a visual analogue scale. He said the pain did not wake him but, on waking, he found it hard to go back to sleep. There was pain on flexion and lateral rotation to the left and other movements “pull a bit”. [21] The plaintiff went to Redlands Physiotherapy and Sports Injury on three occasions. His first consultation with them was on 26 March 2014. The records report that he complained of pain in his cervical and thoracic spine. There was mention of a past medical history of lower back pain but no complaint of such symptoms on consultation. On his next attendance on 31 March the records state: “Increased pain after treatment – but significantly better now. Increased range of movement. Left side still painful in cervical and thoracic spine. Treatment as on 26 March 2014” (I have reproduced my understanding of the abbreviation used in the actual notes). -- 6 of 19 -- 7 [22] On 7 April the physiotherapy notes record a very significant reduction in his pain and an increased range of movement. He was again provided with similar treatment. [23] It appears to me that this history, which I accept, and which was not challenged in any way in his evidence, is somewhat inconsistent with the plaintiff’s statements to Mr Hansen that he did not benefit (or “progress clinically”) from such treatment. [24] Mr Hansen first saw the plaintiff after his return to Denmark on 25 June 2014 in December 2014. The plaintiff said this was due to his impecuniosity upon his return. I accept that was a significant factor in his not seeing Dr Hansen over that 5 month period. Dr Hansen records that after the accident the plaintiff experienced acute cervical spine with radiculopathy in both arms including digital paraesthesia bilaterally. Again I note no such complaint to his GP, the hospital or to his physiotherapist in Australia. Indeed, he made no such complaint in evidence before me. In such circumstances I cannot find he had such symptoms. Dr Hansen also records that the plaintiff has suffered from recurrent intermittent cervical headaches. Mr Hansen describes the sprain of his cervical spine as being chronic, being present nine months after injury. He instigated a treatment of spinal manipulation and soft tissue mobilisation. After eight consultations he was said to have a good result with the majority of his pain and immobility being no longer present. Dr Hansen notes the radiculopathy and hand paraesthesia was also gone. I ignore that remark in in view of my earlier finding. It was said however that he had not fully recovered. Nevertheless he was described as “almost symptom free”. He was said to experience some ongoing fatigue and cervical hypermyotonia causing neck headaches especially after hard physical work. The plaintiff said to Dr Hansen that after treatments he continues to feel good again for approximately one month. That is consistent with his evidence -- 7 of 19 -- 8 before me. Dr Hansen says there is no doubt the plaintiff has suffered permanent damage to his cervical spine and recommends ongoing spinal manipulations monthly. [25] Dr McPhee a spinal surgeon who saw the plaintiff in September 2015 notes that the plaintiff told him that in the past he used to attend his chiropractor in Denmark for management of lower back pain and sciatica. He recorded that the plaintiff said that although his neck symptoms have improved there has been no change in his symptoms in the last three to six months i.e. from about early 2015. He also disclosed to Dr McPhee his past history of right leg pain over many years. [26] He described persistent neck pain and discomfort present about 90 per cent of the time and rated the intensity about 7 out of 10 on a visual analogue scale. His pain was aggravated by heavy work. He however described no restrictions in relation to his work. [27] On examination there was a full range of lumbar spinal movements. An examination of his cervical spine showed no deformity, spasm or focal tenderness. Movements were symmetrical, pain free and unrestricted. Examination of both hands showed bilateral Dupuytren’s Contractures with scars from previous surgery. [28] Dr McPhee’s opinion was that the plaintiff suffered a soft tissue strain of the cervical spine from which he continues to complain of ongoing discomfort. He says that patients usually recover from such whiplash disorders within six months and that, amongst the small number of patients who continue to have symptoms beyond two years, there is unlikely to be improvement. He said that surgery was not indicated and that ongoing treatment should involve self-management of pain through use of analgesia and a regular exercise program. He said the plaintiff’s condition had reached maximum medical improvement. Importantly he did not say he -- 8 of 19 -- 9 recommended ongoing physiotherapy or chiropractic treatment but I note did not specifically address what Dr Campbell says about that issue. [29] Dr McPhee says that despite his neck the plaintiff has been able to continue in his usual work, without restriction, working full-time. He had no restriction on his capacity for personal care or with maintenance of his home. He indicated there was no indication he would not be able to continue with his work in his present capacity until normal retirement age. He assessed a zero percent whole person impairment but specifically said that the absence of an assessable impairment did not imply an absence of pain or some minor disability. I interpose that I do not accept all that Dr McPhee says about the lack of any restrictions on his work, and home life from his neck problems. [30] Dr Scott Campbell, a neurosurgeon, saw the plaintiff a few days later, on 11 September. He observed that, he continues to suffer from neck pain and stiffness. He reported that the plaintiff said this pain occurs daily and rates about 7 out of 10 on a visual analogue scale. He reported it was associated with tingling extending down both arms (which as I have said was not noted in records in the months after the accident and was not mentioned in evidence by the plaintiff) and was aggravated by prolonged sitting, reading, computer work, long distance travel and physical activities. He said the plaintiff was taking Panadol and Brufen for neck pain as required. [31] Dr Campbell’s examination of his cervical spine revealed a decreased range of movement by 20 to 25 degrees in all directions with pain at the extremities. There was observable asymmetry of movements. Dr Campbell explained that observation in his oral evidence. -- 9 of 19 -- 10 [32] Dr Campbell’s opinion was that the plaintiff has developed chronic neck pain and headaches as a result of the accident. He diagnosed a flexion extension injury to his cervical spine and assessed a 6 per cent whole person impairment, relying on the observable asymmetry of movements, central tenderness and guarding of his cervical spine. He said that treatment to date had been appropriate including rest, painkillers, anti-inflammatory medication, physiotherapy and chiropractic manipulation. Importantly he said that: “No further specific treatment is required apart from rest, pain killers and modification of activity.” [33] In his oral evidence he again said that regular chiropractic or physiotherapy treatment would not affect his underlying condition and was not required. He said that in his view patients have a tendency to become attached to treatment, and to their therapists, but that research did not support the need for ongoing regular treatments. I accept his evidence about that issue, which was, unsurprisingly, not challenged by the defendants. In so concluding, I note Dr Hansen did not suggest research supported the need for ongoing monthly treatment, but appeared to rely on observable symptomatic relief to justify such an approach. Dr Campbell does say however that the plaintiff may benefit from a short course of physiotherapy, six to eight sessions at $70 to $100 per session, for acute exacerbations of neck injury that may occur in the future. I interpose that, adopting a middle point of seven sessions at $85 per session, this would amount to an expenditure of about $595 in the event of such an acute occurrence. The question remains of course as to how often this might be required. I accept that as a result of the incident, his neck has been made more vulnerable to such exacerbation and that the accident caused the onset of symptom in his previously symptom free neck. -- 10 of 19 -- 11 [34] When he gave evidence the plaintiff impressed me as straightforward and honest – thought with a tendency to ramble somewhat. He had opportunity to embellish his claim, particularly in relation to his economic loss, but did not do so. For example, he said as I have recounted that opportunities for overtime in his job in Denmark were very rare. Furthermore he readily conceded that to date he had suffered no loss of income in either Australia or in Denmark. He said that although, pre-accident, he worked up to 14 hours a day at his brother’s business he was paid only for a regular 38 hour week. He said he did this to assist his brother’s family as his brother was then in jail. As a consequence, he said that, although in the three month period he worked in Australia after the accident he worked less hours than he could have done if not injured, he himself suffered no loss of income. Such concessions, readily made, assist me in concluding he was an honest witness. That impression extends to his evidence of ongoing problems with his neck as he described. That description was also strongly supported by the evidence of his wife, and two work colleagues. I was especially impressed by the evidence of his wife. [35] The plaintiff said, and I accept, that his symptoms are more than a mere nuisance. I accept that before the accident he was an active man, closely involved with his family and in the maintenance of his home. I accept his evidence that he used to engage in hang-gliding and off-road motor cycling activities but that he is no longer able to do that because of problems with his neck. I accept that he is now often too tired to engage, at least to the extent he previously did, in family outings – to the beach, riding bicycles or seeing his parents-in-law who live some distance away are examples. I also accept he is less able to perform household tasks including renovations and improvements to his house, which he appeared keen on. As his wife said, he always has a project, but now works more slowly. -- 11 of 19 -- 12 [36] So too, I accept his evidence that the level of his symptoms requires ongoing medication. [37] I also accept his evidence that the problem with his neck are far greater than that related to his lower back, and that he has no ongoing knee problem. [38] The plaintiff said that he spends about $6.00 per week (30 Danish Kroner, with an exchange rate of $1 to 5.2559 Kroner) on Panadol, and almost $4.00 per week on Ibuprofen – 200 mg Ibuprofen which he buys about every two to three weeks at a cost of $5 to $6 and stronger Ibuprofen which can last a number of months and costs $10 to $15. [39] I accept his evidence that such expenditure amounts to very nearly $10.00 per week. [40] Having regard to the possibility of an occasional need for physiotherapy for more acute exacerbations of his condition as stated by Dr Campbell, which I have calculated as amounting to $595.00 on such occasions, I will allow likely future expenses up to retirement of $14.00 per week. Thereafter, I will allow half of that sum. I note this allowance for acute exacerbations up to retirement postulates such events about every two and a half years, and loss thereafter. [41] The plaintiff is currently almost 53 years of age. $14.00 per week to age 67, the age Mr Bertelsen retired and which the plaintiff said was common in Denmark, amounts to $7,029 (using a multiplier of 502). A loss of $7.00 per week, using a life expectancy of 32 from age 67, amounts to $2,301 (using a multiplier of 343, being 845 less than 502, the multipliers for 32 years and 14 years respectively). [42] In all, I therefore allow future expenses of $9,329. Although such a sum appears to be a precise calculation, it is clear from my reasoning that the sum is not able to be precisely calculated. -- 12 of 19 -- 13 [43] I allow agreed special damages (set out in bold in the plaintiff’s counsel submissions) amounting to $387.00. I calculate the plaintiff has expended 5,225 Kroner on appointments with Dr Hansen, excluding an appointment on 18 December 2014 which he paid for but did not attend. Using the agreed exchange rate of 5.2559 Krone for one Australian dollar ($1), this amounts to $994.00. I reduce this by about 10% to take account of the possibility he would have attended on some occasions for back problems in any case. I therefore allow $900 for this item. [44] For his past pharmaceutical expenditure I allow the same weekly rate as for the future, until retirement, that is, $10.00 per week. For the period for March 2014 to date, this amounts to $1,690. [45] I allow only a token sum of $200 for travel expenses in Australia and Denmark associated with attendances on medical and related treatment in both countries. [46] I generally accept the evidence of Dr Campbell in respect of the assessment of the plaintiff’s injury. I do not doubt that, on examination, Dr McPhee did not observe the asymmetry of movement that Dr Campbell observed. It is likely that such asymmetry comes and goes somewhat depending on the level of the plaintiff’s symptoms. No doubt this is related to the level of aggravation of his spine. I note that when he was examined by the doctors in Australia, he was not then working having travelled here from Denmark. Based on his evidence, I accept that work is a significant aggravating feature and I think it likely that, if examined in Denmark, such asymmetry would have been more commonly observable. [47] It is appropriate to assess the plaintiff’s general damages as falling within Item 88 of the Civil Liability Regulations which has an injury scale value (ISV) of 5 to 10. In my view the commentary to that item, namely that the injury will cause moderate -- 13 of 19 -- 14 permanent impairment for which is objective evidence of the cervical spine, appropriately fits the level of symptoms that I accept the plaintiff suffers from. I note also that under that item an ISV of not more than 10 will be appropriate if there is a whole person impairment of 8% caused by a soft tissue injury for which there was no radiological evidence. In this case, Dr Campbell assessed the plaintiff as having a 6% whole person impairment. In such circumstances, I assess an ISV of 8 and award general damages for $11,640. [48] The most contentious item relates to future economic loss. The plaintiff accepts that he has suffered no loss in the past. The scintilla of evidence that he gave about an inability to perform overtime on one occasion soon after his return to Denmark does not enable me, to make any separate award under that head. [49] In considering economic loss I have had regard to the decisions of Allianz Australia Insurance Ltd v McCarthy [2012] QCA 312 and Ballesteros v Chidlow and Anor [2006] QCA 323. I do not propose to set out lengthy passages from those cases but note my comments about them in Ingersole v Nancarrow [2016] QDC 315, especially at [69]-[71] thereof. [50] In McCarthy, an award by the trial judge of $40,000 for future economic loss and $3,600 for future loss of superannuation was reduced an appeal to sums of $15,000 and $1,350 respectively under those heads. [51] In my view consideration of that case supports a greater award to be made in this case. McMurdo P said in that case, in relation to a 26 year old plaintiff who had completed only a small part of her degree in event management and suffered a minor injury to her foot, that: -- 14 of 19 -- 15 “[6] In my view, the following inferences should be drawn from the now undisputed facts determined by the primary judge. It is likely Ms McCarthy will complete her business degree and gain employment in her chosen field of events management. She will probably tolerate the pain and discomfort in her foot so as to work in this field, at least in the short to medium term. But as she ages and the arthritis in her injured foot worsens, she may become less tolerant of the pain, perhaps to the point where she is unable to work in events management, positions which require prolonged standing and walking. This will probably not impact on her income as she will be well-equipped to take on alternative, equally well-paid (or perhaps even more lucrative) work. Nevertheless, there remains some possibility that she will suffer economic loss for short periods through her inability to meet the physical demands of events management whilst finding more suitable employment. [7] There is also a real chance of a considerably less likely scenario. She may not complete her business degree. After all, she has presently completed but one-sixth of it. She may lose her present position in financial services with the National Australia Bank where she works through the Julia Ross Recruitment Agency. She would then have to seek other work, not necessarily in the financial services field where she has some experience and modest qualifications. Despite her strong work ethic and stoicism displayed to date, in competing for jobs in the general semi-skilled workplace, she would be less employable than an able-bodied person because of the accident-related injury as jobs requiring prolonged walking and standing would be closed to her. She is now 26 years old and has about 40 years of working life ahead. As she ages and the accident-related arthritis progresses, she is likely to become less tolerant of the pain and, as Dr McCauley opined, she should avoid jobs requiring her to stand or walk for long periods. -- 15 of 19 -- 16 … [9] In my view, this court should make an award of damages for future economic loss to take into account the general disadvantage Ms McCarthy might suffer on the open labour market, particularly if she does not complete her degree. True it is that she is far more likely to complete her business degree and obtain well-paid employment in which she will manage the pain to her injured foot without economic loss. But the real possibility remains that the accident-related injury may cause economic loss, especially if, without tertiary qualifications, she becomes unemployed and is unable to take positions involving significant periods of standing or walking whilst she waits for more suitable employment.” [52] In this case the plaintiff is, I conclude, in a more vulnerable position than the plaintiff in McCarthy. True it is that he is suffering no current loss of income. His lack of past economic loss in Australia is, as I earlier explained, only because he was paid a flat rate equivalent to a 38 hour week but his brother’s business despite working significantly longer hours. I accept he did in fact work significantly less hours than he would have done if uninjured in the time after the accident, but for the reasons I have set out, suffered no loss. In Denmark his suffering no loss is disguised by the fact, which I accept, that he has had time off work due to significant neck symptoms from time to time but that he has continued to be paid for a full week’s work despite those absences. The evidence of his former supervisor, Mr Bertelsen, leads me to conclude that he has benefitted from the attitude of a very friendly supervisor. That of course may continue to be the case in the future but Mr Bertelsen retired early this year. It certainly seems the local authority is an understanding employer. However I accept the submissions of the plaintiff’s counsel that his lack of past loss must be -- 16 of 19 -- 17 considered against the following factors which I adopt from the plaintiff’s counsel’s closing submissions: (a) If the plaintiff was for whatever reason to lose his employment with the council he would be significantly disadvantaged on the open labour market due to his lack of work capacity. That lack of work capacity is a lack of capacity to work full 37.5 hours per week on a regular basis. (b) The plaintiff who recently began work under a new supervisor, might not, over the next 14 years of his working life, always have the indulgence of a supervisor with whom he has worked over a period of 17 years such that his time off work will result in loss of income. (c) The plaintiff will, as he ages, be less able to cope with his symptoms and may have to retire earlier than his desired retirement age of 67 years. (d) More opportunities to perform overtime work as the plaintiff’s employer may become available, opportunities which the plaintiff will not be able to take advantage of, noting his restricted work capacity. [53] The first three of those factors in particular support an award in excess of that ultimately allowed in McCarthy. Because the plaintiff performs a moderately physical job, his reduced ability to work above shoulder height and when looking up, for example, when painting ceilings are of particular importance. At his age and suffering the symptoms he and other lay persons in Denmark described, loss of his employment may result in a much reduced ability to find equivalent work. [54] Having said that however, I do not unduly inflate the likelihood of his being placed in such a position. He is obviously well-regarded as a good tradesman although one -- 17 of 19 -- 18 who is less efficient than previously and he has worked in his employment for a significant period with his symptoms. [55] In my view, he should ultimately receive a similar award to that allowed by the Court of Appeal in Ballesteros v Chidlow (supra). [56] It is not necessary to recount the facts of that case but I note at [42] McMurdo P, with whom Douglas J agreed said: The damages award arrived at by the primary judge was, however, in my view manifestly inadequate. It did not sufficiently reflect the possibility, albeit fairly unlikely, that the pain clinic course may not be effective and that the appellant may have considerable periods over her remaining 28 year working life of future unemployment attributable to her accident-related injuries. Bearing in mind her previous earning capacity ($589 nett per week) an award of $40,000 including future superannuation losses (roughly 15 months lost wages and superannuation entitlements with some discounting because of the present receipt of damages for future losses) better reflects the various contingencies and more adequately compensates the appellant for the competing hypothetical chances relating to the effect of her accident-related injuries on her future employment. [57] In my view an award of $40,000 approximately also reflects the various contingencies and compensates the appellant for the ongoing hypothetical chances relating to the effect of his accident-related injuries on his future employment. The assumptions on which that finding are based, as required by s. 55 of the Civil Liability Act are set out herein. I am satisfied that he will suffer loss having regard to these matters. The award can be mathematically justified in a number of ways. It is equivalent, I note, to a weekly sum of $80 per week to age 67. Furthermore it is equivalent to a sum of about -- 18 of 19 -- 19 $440.00 per peek until retirement, delay for 10 years. Such a scenario could play out in the event of early retirement. [58] I have not utilised such approaches to calculate the plaintiff’s future economic loss, but consideration of such approaches fortifies my view that the sum I have allowed is appropriate. [59] In all therefore I calculate the plaintiff’s damages as follows: General damages $11,640 Special damages $4,867 Interest at 1.34% for 3.25 years $212 Future expenses $9,329 Future economic loss (including superannuation) $40,000 Total $66,048 [60] I give judgment for the plaintiff in that sum. I will hear argument as to costs. -- 19 of 19 --