Devitt v Nominal Defendant [2006] QSC 146

SUPREME COURT OF QUEENSLAND CITATION: Devitt v Nominal Defendant [2006] QSC 146 PARTIES: LEIGH WILLIAM DEVITT (plaintiff) v NOMINAL DEFENDANT (defendant) FILE NO/S: SC No 2625 of 2004 DIVISION: Trial Division PROCEEDING: Claim ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 21 June 2006 DELIVERED AT: Brisbane HEARING DATE: 13 June 2006; 14 June 2006 JUDGE: de Jersey CJ ORDER: There will be judgment for the plaintiff against the defendant in the amount of $80,206.78 CATCHWORDS: DAMAGES – PERSONAL INJURIES – ASSESSMENT – assessment of quantum of damages for personal injuries – 5 % cervico/thoracic disability – temporary lumbar/psychiatric disturbance COUNSEL: J R Webb for the plaintiff K F Holyoak for the defendant SOLICITORS: Robbins Watson for the plaintiff Corrs Chambers Westgarth for the defendant [1] In the mid-afternoon of 26 January 2001, the plaintiff was riding a bicycle along Currumbin Creek Road at Currumbin. A motor vehicle collided with him, from behind. That vehicle did not stop at the scene, and was not subsequently identified. The plaintiff was injured. He consequently brought this proceeding against the Nominal Defendant, which has admitted liability. It remains to assess the quantum of damages. Thoracic/cervical injuries and disabilities [2] There is substantial debate as to what injuries and disabilities the plaintiff suffered in consequence of the collision. I deal first with the injuries and disabilities which are clearly established. -- 1 of 12 -- 2 [3] He suffered fractures to the third to eighth ribs on the left side, and those fractures healed. He also suffered a soft tissue injury to his cervicothoracic spine. [4] Doctor Licina, an orthopaedic surgeon, considers the plaintiff has a consequent permanent two percent loss of function of the cervical spine and three percent loss of function of the thoracic spine (Ex 2, p 41). [5] Another orthopaedic surgeon, Dr White, assessed a five percent “whole person” impairment because of the condition of the plaintiff’s cervical spine. That doctor linked the thoracic disability to a disability in the lumbar spine, producing a 15 percent whole person impairment because of the condition of his thoraco-lumbar spine, of which he attributed one quarter, 3.75 percent, to this collision. As will emerge, my finding is that this collision did not cause, or permanently aggravate, any enduring lumbar disability. [6] In the result, there is no notable difference between Doctors Licina and White as to the extent of permanent disability consequent upon the injury to the plaintiff’s cervical and thoracic spines. I find they have led to a five per cent disability, as assessed by Dr Licina. [7] I turn now to the practical effect of that disability upon the plaintiff. Relevant pain and suffering and interference with amenity [8] After the accident, the plaintiff was taken to hospital but not admitted. He felt very sore, and was given morphine. He then went to stay with friends. With the plaintiff’s pain continuing, they arranged for his readmission to hospital, where he received outpatient treatment over a week or so. [9] The plaintiff gave oral evidence of continuing pain in his back, and in his ribs area on the left side. In his written statement admitted into evidence, he says that after release from the hospital, he suffered pain in the chest and neck and headaches, with associated lethargy, nightmares, loss of appetite and insomnia. He underwent acupuncture treatment and physiotherapy, and took prescription drugs for pain relief. Over the following year, he suffered pain daily, and sometimes spent all day in bed. (While not absolutely clear, it is likely, that this was largely the result of the back pain.) The headaches were bad for six to eight months. [10] At the present time, the plaintiff wears a neck brace if driving even short distances. He can walk three to four kilometres, but then he gets “sore”. He finds it difficult to maintain his head and neck in a fixed position for extended periods. The only consequence of the chest (ribs) injury is shortness of breath if he walks too fast or plays with children. He has stopped swimming, in which he previously engaged actively, because of the shortness of breath problem. [11] As pointed out by Mr Holyoak, who appeared for the defendant, the plaintiff did not always clearly identify the location of the pain which inhibited particular activities. But it is I believe sufficiently clear that the limitations just mentioned (save for the back problem mentioned in para 9) resulted from the injury to his thoracic and cervical spines. Effect on capacity to work -- 2 of 12 -- 3 [12] Prior to the accident, the plaintiff had engaged in work, on a part-time basis, as a music store salesperson and tutor in the playing of the guitar. He wished to resume that work following the accident (and there was work available), but could not do so because of other problems to which I will come. The issue arises whether the cervical/thoracic problem caused or contributed to his inability to work in that or other occupations. [13] Doctor Licina expressed the view (Ex 2, p 41) that the plaintiff would have been able to return to work, on the basis of light duties, as soon as three months after the collision, with normal work available six months after the collision. Doctor Licina did not depart from that position in his oral evidence. [14] Doctor White, on the other hand, in his report of 23 May 2003 (Ex 1, p 24), said that the plaintiff would likely remain permanently unfit for work involving heavy physical labour, prolonged standing, or sitting, lifting, repetitive bending, or the maintenance of the head and neck in fixed positions for extended periods. (That involved the view, which I do not share, that the plaintiff’s presently continuing back problems are, at least in part, attributable to this collision.) [15] The plaintiff gave evidence, which I accept, of various current capacities: his completion without assistance of all household and domestic chores; his capacity to work on an exercise bike; his driving and washing of his motor vehicle; going to the library and collecting books; doing the shopping, working at a computer; playing musical instruments sitting down, etc. He is capable of fully independent living. The existence of those capacities was put to Dr White, who then accepted that the plaintiff could, notwithstanding his orthopaedic problems, undertake light retail work, provided he could move about as necessary and be assisted with, for example, any necessary heavy lifting. See pp 71-72 of the transcript. [16] I find that the plaintiff’s cervical/thoracic disability did not preclude his resuming light employment approximately three months after the collision, and normal work another three months later. But as will emerge, the plaintiff was unable in any event throughout that period, for reasons unrelated to the collision, to engage in employment. [17] The result is that the plaintiff has no sustainable claim in respect of past economic loss. Nor has he any sustainable claim for future economic loss, unless – the defendant taking the plaintiff “as it finds him” – the impact of the cervico/thoracic disability on the plaintiff’s pre-existing state involves a reduction in his earning capacity. I return to that issue later. Eye twitch/fear of driving and cycling [18] After the collision the plaintiff developed what is termed a body dysmorphic disorder, a psychological disorder manifested in a nervous “tic” in his left eye. He was self-conscious about it. The embarrassment moderated with time. It was on my assessment more an irritant than a matter of any substantial concern. In his report of 11 May 2006, relating to a consultation with the plaintiff the day before, the psychiatrist Dr Danesi reported the plaintiff’s statement that the twitch was annoying but not a source of anxiety. Doctor Danesi then considered that problem “resolved” (Ex 1 p 18). -- 3 of 12 -- 4 [19] The plaintiff also developed a “situational phobic disorder”, essentially an aversion to driving or cycling because of anxiety over the possibility of further mishap. This likewise resolved over time (Ex 1, p 18). [20] Those aspects warrant some, but not major, recognition in the assessment of damages. The plaintiff’s lower back condition [21] In his written statement, the plaintiff says that because of this collision, he suffered aggravation of a lower back condition (Ex 1, p 33). He speaks there of inability to walk over uneven ground without tiring quickly, and using a walking stick. He cannot climb a ladder or lift anything heavy. He suffers back spasms. See p 36. He refers to his inability now to engage in the robust physical activities which characterized his pre-accident life, such as episodes of cycling 30 kilometres, walking 10 kilometres, swimming 2 kilometres, playing the guitar while standing or sitting for up to four hours at a time, driving for more than an hour, and playing social contact sport. See p 39. [22] The extent to which any of that disability is referable to this collision has to be considered in the context of the plaintiff’s previous back history, which is highly significant. [23] The plaintiff’s date of birth is 7 June 1955. From 1979 to 1983, while he was aged 24 years to 28 years, he was employed by Woolworths in strenuous labouring type work. He injured his lower back in the course of that employment, necessitating a spinal fusion of L5/S1, carried out in 1985. [24] A consequent claim for damages in the Victorian County Court was settled on the basis the plaintiff was left “unable to perform tasks which required lifting, repetitive bending, sitting or standing for moderate periods of time”, and that there had been a “severe diminution of his earning capacity” (transcript p 27). In his oral evidence, the plaintiff confirmed the accuracy of those factual positions. Thereafter, the plaintiff consistently avoided work which involved lifting, repetitive bending, or sitting or standing for moderate periods of time (p 27). [25] Notwithstanding the fusion operation, the plaintiff’s lower back clearly remained a problem. In the late 1990’s for example, while running long distance over rough ground at Gympie, the plaintiff felt his back “go”: he received treatment over a couple of days at Gympie Hospital in the course of which he was given Panadeine Forte. [26] On another occasion, 25 October 1999, he consulted his general practitioner Dr Sungur in relation to lower back pain and was prescribed, again, Panadeine Forte. [27] Then on 1 June 2000, the plaintiff fell down the stairs at his house, landing on his back. He went to see Dr Sungur, complaining of “very severe back pain”, and inability to cope. Doctor Sungur gave him a pethidine injection. [28] On the same day, the plaintiff attended at Tweed District Hospital Emergency Department. The history taken (Ex 3, p 5) refers to: “Past history chronic back ache”. (At this trial, there was no challenge to the accuracy of that history.) An x- ray was taken. The radiologist’s report (Ex 3, p 6) says: “The L4-5 disc is slightly -- 4 of 12 -- 5 narrowed. Disc protrusions at the L4-5 or lumbosacral level could not be ruled out…”. [29] Following the instant collision, Dr Sungur referred the plaintiff to the radiologist Dr Burgess. The analysis of Dr Burgess, dated 15 February 2001, of the x-ray then taken, reads: “The appearances are similar to those shown in the hospital study of 1.6.00.” (Ex 1 p 1). That is obviously significant in that post-accident, no change was detected radiologically from the pre-accident condition of the lumbar spine. [30] Subsequently to the instant collision, the plaintiff was, on 11 May 2001, involved in a low speed collision between his motor vehicle and another vehicle in a shopping centre car park. The plaintiff consulted Dr Sungur that day. Doctor Sungur prescribed Diogesic, which is a strong pain killer. [31] The plaintiff gave oral evidence that he then complained to the doctor only of being distressed. But the doctor’s notes made at the time (Ex 3, p 4) go further and record: “His back, lower back causing more pain now”. Having heard the evidence of Dr Sungur, I find that the plaintiff did then complain of lower back pain aggravated by the collision in the car park. Doctor Sungur’s diary refers to continuing subsequent complaints by the plaintiff of lower back pain. [32] In the plaintiff’s written statement, he said that prior to this collision he experienced “some intermittent lower back pain but…was able to function quite normally so long as (he) did not overdo it”. He said that he was not taking any medication. I note, in that regard, that the plaintiff was prescribed Panadeine Forte on 25 October 1999, and was given the pethidine injection on 1 June 2000. [33] In his oral evidence, the plaintiff said that his lower back was not a source of pain prior to this collision, although he sometimes experienced pain and would go to his general practitioner for medication (p 31). But significantly he denied, in his oral evidence, the suggestion put to him that he had experienced lower back pain “on and off since the 1985 fusion” (p 31). My finding is that he did. [34] Mr Webb, who appeared for the plaintiff, emphasized the plaintiff’s evidence, and the evidence of the witness Ralph White in particular, as to the plaintiff’s level of fitness prior to the instant collision. Mr Webb agitated the significance of that evidence in his examination and cross-examination of medical practitioners who gave evidence. Mr Webb’s contention was that if the plaintiff was experiencing recurrent lower back problems, it would be unlikely he could have engaged in the extremely active physical regime which he described at, for example, p 39 of Ex 1. [35] Mr Holyoak submitted I should find that the plaintiff understated the extent to which he experienced pain, and possibly also overstated the extent of his activity. Mr Webb countered that Mr Holyoak did not specifically challenge the extent to which the plaintiff claimed to have engaged in this physical activity. [36] Mr Holyoak made it plain, through his cross-examination of the plaintiff, that he was contending the plaintiff had not fully disclosed the extent to which, prior to this collision, he had been suffering lower back pain. That was enough to put the plaintiff reasonably on notice as to the case he had to meet. It was not necessary for Mr Holyoak to challenge directly the extent to which the plaintiff claimed to have engaged in such activity: it sufficed for him to challenge directly, as he did, the plaintiff’s evidence of the extent to which he experienced pain. The plaintiff was -- 5 of 12 -- 6 (on the evidence I accept) concerned about his physical image. It may be that to preserve it, he was prepared to endure more pain than would ordinarily be countenanced. [37] Doctor Licina expressed the view (Ex 2, p 40) that this collision would temporarily have aggravated the plaintiff’s pre-existing lower back condition, producing pain, but that that aggravation would settle “with the passage of time”. As he said, “the major cause of his back pain is the previous injury and subsequent fusion”. His oral evidence was consistent with that position. [38] While under cross-examination, Dr White was shown the important x-ray reports of 1 June 2000 and 15 February 2001, disclosing no apparent change. Doctor White indicated that to “accurately validate” the plaintiff’s current condition objectively, he would need to carry out further investigations, including an MRI scan. Doctor White’s evidence was in those circumstances ultimately left in a state of some uncertainty or lack of resolution. [39] I accepted Dr Licina’s evidence, including his forecast, expressed in his report of 6 October 2004, that within ten years or so the original injury leading to the fusion operation in 1985 could have interfered with the plaintiff’s ability to work long hours if prolonged standing and heavy lifting were required, with a possible cessation of work entirely within 10 to 15 years. [40] In the result, the plaintiff is to be compensated for pain, suffering and loss of amenity associated with a temporary aggravation of his pre-existing lower back degenerative condition. It is not possible, obviously, to be precise as to the extent of that increase in symptoms. Doing the best I can, I work on the basis that it endured for approximately six months. Plaintiff’s eye condition [41] Before turning to the plaintiff’s psychiatric condition, it is convenient to deal with his eye condition. [42] The plaintiff suffered from a congenital condition called keratoconus, extreme short-sightedness with progressively deteriorating vision. An initial graft by Dr Kearney in 1986 was not a success. Doctor Stewart performed a left eye graft in October 2001, leading to restoration of the sight in that eye by June 2002. A right corneal graft on 19 June 2002 led to restoration of full vision about four months later, that is, by October or November 2002. See the report of Dr Stewart (Ex 1, p 25). [43] Doctor Hirst has provided a report concerning the effect of the plaintiff’s limited vision on his capacity to work (Ex 2, p 53). I conclude that the plaintiff could not realistically have taken on employment until, at the earliest, June 2002, or more likely, with restoration of good binocular vision in late 2002. [44] This means that throughout the period for which the plaintiff was experiencing symptoms in his thoraco/cervical spine, and pain with aggravation of the lumbar problem, such as were or was referable to the instant collision, he was prevented from working anyway because of this extraneous condition. The plaintiff’s psychiatric condition -- 6 of 12 -- 7 [45] In his written statement, the plaintiff refers to symptoms of a major depressive disorder which developed subsequently to the collision (Ex 1, p 38). The symptoms included anxiety, fear of driving or cycling, fear of crowds, low self-esteem, loss of confidence, reduced concentration and patience with others, and irritability. The plaintiff’s treating psychiatrist, Dr Danesi, has recommended that the plaintiff undertake sessions of psychiatric intervention, monthly over one to two years (Ex 1, p 18). Doctor Danesi considered it a major depressive disorder referable to this collision. [46] When Dr Danesi wrote his reports, he was apparently not aware that over a substantial period before the collision, the plaintiff had undergone treatment for depression. Doctor Sungur gave evidence of that treatment. Notes of Dr Sungur’s consultations with the plaintiff are contained in Ex 3. [47] On 25 October 1999, the plaintiff presented to Dr Sungur with classic symptoms of depression. The plaintiff was depressed, and isolating himself. His son would not communicate with him. The doctor prescribed Cipramil. On 18 December 1999, the plaintiff was complaining of insomnia, lethargy, low self-esteem and not wanting to mix. The Cipramil was continued. On 14 January 2000, a further script for Cipramil was provided. Complaints of depression on 2 February 2000 led to a change from Cipramil to another anti-depressant drug, Efexor, because the plaintiff had not been responding to the Cipramil. [48] The plaintiff gave two pieces of evidence in this area which I did not accept. The first was that he did not take the prescribed anti-depressant medication. It seems highly improbable that he would have troubled to complain to Dr Sungur of his depression, yet not take the medication prescribed. The second was that he told Dr Sungur the reason for his depression was his fading eyesight because of the congenital condition. Doctor Sungur denied the plaintiff told him that, and there is no mention of it in his notes. Having heard Dr Sungur’s evidence, and having reviewed the style of his notes, I consider that had such an important point been mentioned, the doctor would have recorded it. [49] In relation to the assessment of credibility, a conclusion the eye condition accounted for the pre-accident depression could on one view advance the plaintiff’s present case. That is because with the resolution of that condition, the relevant “stressor” would be gone, so that any re-emerging depression could more readily be accepted as related to the collision. It may be that appreciating that position, the plaintiff has, by some process of reconstruction, persuaded himself that he presented his depression to Dr Sungur on that basis. I find, however, that he did not. The depression he was experiencing before the accident was much more classically based, explained by considerations of self-esteem and social isolation especially, aspects prone to recur. [50] Mr Holyoak took Dr Danesi through Dr Sungur’s notes. Doctor Danesi, as the plaintiff’s treating psychiatrist, only rather grudgingly accepted plainly relevant aspects of the history disclosed to him, and seemed somewhat overly protective of the plaintiff’s position. A good example concerned whether Cipramil is an anti- depressant drug (p 107). Another was the doctor’s reluctance to accept that Dr Sungur’s notes indicated the plaintiff was suffering a depressive disorder. -- 7 of 12 -- 8 [51] Doctor Danesi did nevertheless accept that by October 1999, the plaintiff was vulnerable to psychiatric “decompensation” from such “stressors” as separation from his son, pain from a pre-existing lower back condition, or a relationship set back – irrespective, that is, of the collision on 26 January 2001; and that given the plaintiff’s presentation from October 1999, such decompensation was a likelihood. See p 111. Doctor Danesi accepted the description of the ongoing lower back pain as a “significant major stressor” (p 113). [52] For reasons which need no elaboration, I preferred, in areas of conflict, the evidence of the psychiatrist Dr Lovell (save that I did not accept, for reasons previously expressed, that doctor’s attribution of the 1999/2000 depression to the eye problem (Ex 2, p 21)). Doctor Lovell’s report of 13 August 2004 was appropriately informed by the plaintiff’s psychiatric history prior to 26 January 2001 (Ex 2, p 21). Doctor Lovell diagnosed “major depression in remission”. He considered there was no psychiatric reason why the plaintiff could not work full hours. He emphasized the plaintiff’s capacity for independent living. In his oral evidence, which I accepted, Dr Lovell said that when he saw the plaintiff in August 2004, the plaintiff, who was then taking anti-depressants, was doing reasonably well. Doctor Lovell put any subsequent deterioration in the plaintiff’s condition down to his having ceased taking the anti-depressants and having substituted an excessive intake of alcohol. Doctor Lovell confirmed that if a person has had one previous experience of clinical depression, there is a 50 to 60 per cent prospect of a relapse, which increases to 75 per cent after a second experience. [53] The conclusions I draw are that in 1999/2000, the plaintiff suffered severe depression, referable to isolation and low self-esteem and possibly the recurrent back problem, but not to his eye condition. He was therefore subject to a 50 to 60 per cent chance of recurrence. The relevant stressor could be continuing back pain, or isolation, or of course the traumatic incident of 26 January 2001. But with medication, the re-emergence or possible aggravation of the earlier condition, after the instant collision, could be controlled with medication, and should have been temporary. Whatever its duration, there was a high prospect (75 per cent) of a further recurrence anyway, provoked by circumstances other than the incident of 26 January 2001. [54] While it is likely the instant collision brought on further depression, or aggravated a current state, I accept on the evidence that that should have been a temporary effect, susceptible of control with anti-depressant drugs, and I note in that regard the evidence of Dr Lovell that by August 2004, when he saw the plaintiff, the plaintiff’s condition of major depression was in remission and stable. Doctor Lovell also records that when the plaintiff presented to Dr Danesi about 12 months after the accident, his major depression responded to treatment with anti-depressant medication. [55] It is, again, impossible in all of these circumstances to reach any precise view as to the duration of the period for which psychiatric symptoms referable to the events of 26 January 2001 persisted. Again doing the best I can, I would set that period at approximately six to 12 months. Reliability of the plaintiff’s evidence -- 8 of 12 -- 9 [56] I regret to have to say that I did not accept all of the plaintiff’s evidence as necessarily reliable. [57] I have already indicated I rejected his evidence that when speaking to Dr Sungur, he related the depression to the eye condition; his evidence that he did not take the anti-depressant drugs he was prescribed; and his denial of telling Dr Sungur he was suffering increased back pain. [58] There were other troubling aspects to the plaintiff’s evidence. I considered improbable, for example, his denials of statements attributed to him in Dr Sungur’s notes – for example, as to his being in severe pain. Likewise, there was the plaintiff’s unconvincing explanation for why he presented to Dr Lovell carrying a white cane (p 41). It was plainly meant to convey to the outside world that he had impaired vision. But by then (August 2004), his vision had been well and truly restored. That behaviour may reflect what the plaintiff told Dr Danesi later, in 2006 (Ex 1, p 17), that he felt he was “caught in a victim mentality”. [59] In the end, I fear the plaintiff was given to reconstruction, and that I should be circumspect about accepting his evidence at face value. My preference was for historical records and notes, and supporting evidence where available – for example from Dr Sungur, where those records conflicted, or prima facie did not sit comfortably, with evidence from the plaintiff himself. Summary [60] In the result, the plaintiff should be compensated for the following: 1. The trauma of the incident, and consequent pain, suffering and inconvenience; 2. a permanent 5 per cent disability of the thoraco/cervical spine, and the symptoms of that, following the collision to the present and beyond, particularly inability to hold the head and neck in the same position for substantial periods, and some shortness of breath; 3. the effects of the temporary aggravation, over a period of approximately six months, of the pre-existing adverse lumbar condition; 4. the effects of the aggravation, or reactivation, over a period of approximately six to 12 months, of the clinical depression; 5. the comparatively minor eye twitch/fear of driving and cycling concerns. Pain, suffering and loss of amenities [61] I allow $45,000 on this account, together with interest at two per cent per annum, on one half of that amount, for 5.45 years, which is $2,452.50. Loss of earning capacity – future economic loss [62] As to reduction in the plaintiff’s earning capacity, I proceed on the basis that the orthopaedic disability referred to in sub-paragraph two above would likely have some effect on his earning capacity, when taken in the context of the other problems to which the plaintiff was already subject, especially the pre-existing lower back problem and the prior experience of clinical depression. -- 9 of 12 -- 10 [63] But it is not realistic to seek to assess this component by reference to weekly losses computed over a period. It is more appropriate to allow a “global” amount. [64] What of the plaintiff’s employment history and prospects but for this injury? [65] The plaintiff’s work history is outlined at pages 46-48 of Ex 1. He preferred part- time work and earned modest sums. He was not infrequently out of work, drawing unemployment or social security benefits. In the six to seven months preceding the accident, his income from tutoring was $1,400. He earned more substantial sums in the early to mid-1990’s, but the highest amount was limited to $15,886, earned in the first half of 1995. [66] The plaintiff’s preference for part-time work may be explained either by his need to avoid work involving lifting, repetitive bending, or sitting or standing for moderate periods, or on the other hand, lack of motivation, or a combination of both. [67] I consider unduly optimistic the forecast that he would, but for these injuries, have been earning at the rates given in evidence by Ralph White and Beverley Williams. On Mr White’s evidence, working 15 hours per week would yield him $400 gross per week, and at 25 hours per week, $600. [68] I should add that I would not have seen the plaintiff working beyond 60 to 65 years of age. [69] Taking the global approach to which I earlier referred, and allowing for the various qualifications I have expressed, and ultimately the limitation that the plaintiff is to be compensated for the chance that his cervical/thoracic disability may have deprived him of or reduced an earning capacity otherwise available, I assess compensation on this account at $20,000. That equates to a year on the 15 hours per week basis, that is at $400 per week, which I think a reasonable reflection of the above considerations. [70] I allow future superannuation at nine per cent, which is $1,800. Past Griffiths v Kerkemeyer component [71] This is agreed as $1,396.35. Interest at five per cent per annum for 5.4 years is $377. Future expenses [72] This claim relates to the cost of Panadeine Forte, the cost of psychiatric treatment, and the cost of consulting general practitioners. See p 45 of Ex 1. [73] The plaintiff’s evidence about the need for future consultations with general practitioners related to the prescribing of Panadeine Forte. [74] The clear theme of the plaintiff’s evidence was that he took Panadeine Forte in respect of lower back pain. There is no sufficient evidentiary basis for a conclusion it relates to alleviation of head and neck problems referable to the collision. [75] In light of my findings, none of this claim has been sustained. Special damages -- 10 of 12 -- 11 [76] The plaintiff’s claim for special damages is summarized at p 49 of Ex 1. Subtracting the “future costs” (not sustained), and the Griffiths v Kerkemeyer amounts (separately allowed for), the amount claimed is reduced to $11,146.30. [77] It is appropriate to proceed then consistently with the submission made on behalf of the defendant. [78] I proceed by first subtracting the expenses involved in the psychiatric attendances on Dr Danesi and Dr Wright (to be added back later), which leaves $9,209.40. The “non-psychiatric” special damages calculated up to six months after the subject collision amount to $3,592.40 (also to be allowed for separately). (That was Mr Holyoak’s figure: Mr Webb did not dispute its arithmetical correctness.) Subtracting that sum from $9,209.40 leaves $5,617. [79] As pointed out by Mr Holyoak, that expense of $5,617 may or may have been incurred in any event: on the evidence of Dr Licina, lower back pain not provoked by the instant collision may itself have produced the need for analgesics and general practitioner attendance. I propose to adopt the course urged for the defendant, that is, proceeding broadly, to allow one half. [80] This exercise produces these figures: (a) expenses to six months post-accident, excluding psychiatric $3,592.40 (b) Doctor Wright, psychiatrist, $372.80 (c) Doctor Danesi, psychiatrist, $1,564.10 (d) remaining special damages $2,808.50 [81] No interest applies to the sums relating to the period up to six months following the accident, because they are “refunds”, save for a pharmaceutical expense of $73.50 (on which interest of $19.85 arises), and a payment of $61.40 to Dr Ring (yielding $18 interest). All but $174 of the psychiatric expenses is the subject of a refund: that sum of $174 attracts interest of $46.98 (not $38.28 as per Mr Holyoak’s written submissions). Interest on $2,808.50 is $758.30 (not $618, as per Mr Holyoak’s submissions). The total of the interest to be allowed is $843.13. [82] Special damages, together with that interest, total $9,180.93. Summary [83] The amounts allowed are as follows: Pain, suffering, loss of amenities $45,000.00 Interest $ 2,452.50 Future economic loss $20,000.00 Superannuation $ 1,800.00 Griffiths v Kerkemeyer $ 1,396.35 Interest $ 377.00 Special damages (together with interest) $ 9,180.93 TOTAL $80,206.78 [84] There will be judgment for the plaintiff against the defendant in the amount of $80,206.78. I will hear submissions in relation to costs. -- 11 of 12 -- 12 [85] I would be grateful were counsel to draw my attention to any perceived arithmetic or other technical discrepancy in the above computation. -- 12 of 12 --