Beaver v F C Beaver & Sons Pty Ltd [1996] QSC 68

IN THE SUPREME COURT OF QUEENSLAND Writ No. 2604 of 1987 Brisbane BETWEEN: ALAN RICHARD BEAVER Plaintiff AND: F.C. BEAVER & SONS PTY. LTD. Defendant REASONS FOR JUDGMENT - HELMAN J. Judgment delivered 19 April 1996 In November 1984 the plaintiff was employed as a foreman by the defendant company, the shareholders in which were other members of his family, in a room occupied by the defendant in a butcher's shop at Oxley, Brisbane. His duties included preparing pieces of beef - portion-controlled steaks - for the local hamburger trade. He was required to trim and hammer rump off-cuts. He trimmed off the fat and gristle and hammered the pieces so that after cooking they would fit onto a bread roll. It is the hammering part of the job which has given rise to this action. The plaintiff claims that he was injured as a result of the negligence and, or alternatively, breach of duty of the defendant and claims damages. The defendant denies that it was guilty of negligence or breach of duty. It makes no allegation of contributory negligence in its defence and no submissions were made on that subject. The hammer, which was admitted as exhibit 26, is shown in photographs on page 11 of exhibit 33, a report dated 17 December 1990 by Mr Kenneth King, a safety consultant. It was designed by the plaintiff's brother Robert, who was the managing director of the defendant. It is an unusual hammer. It has a cylindrical stainless steel head and a solid stainless steel handle. Six to twenty blows were -- 1 of 14 -- 2 required to reduce the meat pieces to the dimensions desired. It was necessary for the blows to be delivered so that the striking face of the head would hit the meat squarely because otherwise the meat would have been damaged. The hammer weighs 2.244 kilograms. It was heavier than those commonly used by tradesmen. Mr King found the carpenter's claw hammer and the mallet, also shown in the photographs in his report, weighed 0.795 kilograms and 1.364 kilograms respectively. The plaintiff worked a ten-to eleven-hour day from 9 October 1984 until he stopped work on the afternoon of 15 November 1984. More than half of his working day was spent hammering. He is left- handed and he used his left hand to wield the hammer. About one month before 15 November he began to feel discomfort from the hammering: pins and needles, and an ache in his left arm and shoulder at night. As time went on the discomfort worsened. He felt a dull ache in his left hand including fingers and forearm on Friday 9 November. He rested over the week-end but the pain did not subside. It kept him awake at night until he stopped work. He spoke about the pain to his brother Gregory, who is a doctor, and Dr Beaver referred him to Dr Richard Johns who was employed by Dr Beaver. On 15 November the plaintiff was examined by Dr Johns who prescribed an anti-inflammatory drug and immobilized the hand by bandaging it. The plaintiff stopped work and began receiving full worker's compensation benefits as from the next day. Dr Johns saw the plaintiff again a number of times: on 27 November 1984 when he was improving but still had some discomfort, on 12 December 1984 when he was still improving but was referred to a physiotherapist, and on 8 January 1985 when it appeared that the physiotherapy had aggravated his condition. On the last-mentioned visit Dr Johns again immobilized the plaintiff's left hand and referred him to Dr Peter McMeniman, orthopaedic surgeon. The plaintiff was seen by four orthopaedic surgeons: Dr McMeniman (on 16 and 23 January 1985, 3 April 1985, and 29 August 1986), Dr William Parker (on 24 January and 3 February 1986), Dr Peter Millroy who is a specialist in hand and upper limb injuries (on 26 September 1986), and Dr Tony Blue (on 8 October 1991). Dr McMeniman made an early preliminary diagnosis of frictional tenosynovitis - an inflammation of the sheath around a tendon from repetitive activity, but ultimately was unable to make a firm diagnosis of the plaintiff's condition. The other orthopaedic surgeons were unable to detect any -- 2 of 14 -- 3 permanent physical damage to the plaintiff. Dr Parker in his report of 10 October 1986 (exhibit 22) said: "I could not diagnose an orthopaedic condition with this man and I really couldn't find any true evidence of physical disease being present". Dr Millroy in his report of 28 October 1986 (exhibit 15) said that there were "no specific objective clinical signs to indicate any organic disability". Dr Blue, in his report of 11 October 1991 (exhibit 21) said: His clinical history and examination strongly suggests that he suffers no organic disability whatsoever and this clinical opinion would be confirmed by the various normal investigations that have previously been carried out. I would be quite certain that he suffers no orthopaedic nor physical disability whatsoever and that his symptoms are due to either hysteria or a minor degree of reflex sympathetic dystrophy. I do not believe that the work activities as described occurring in 1984 have produced any permanent physical disability or functional loss nor predisposition towards same. He certainly would not be advantaged by any active medical treatment other than psychiatric counselling. I believe that indicated treatment is return to active physical work which I believe would reverse the mild degree of reflex sympathetic dystrophy now present. Since November 1984 the plaintiff has however complained of pain and weakness in the third, fourth, and fifth fingers of his left hand and in the parts of the hand near those fingers, pain from the wrist to the elbow in the left arm and intermittent pain in the left upper arm, shoulder, and neck. His left wrist has been free of pain but is sensitive and he finds he is unable to wear an elastic cuff around it. The thumb and index finger of his left hand are weaker than they were before November 1984 but are not painful. Dr John Cameron, neurologist, saw the plaintiff on 23 April 1985 and 14 October 1986 and carried out electrical studies on both occasions. The results were within normal limits. Dr Cameron concluded that it was likely that the plaintiff's "ongoing problems" were "predominantly non-organic" (report dated 16 December 1986, exhibit 14). Dr Martin Devereaux, rheumatologist, saw the plaintiff on 14 October 1986 and was unable accurately to diagnose his original condition, but found evidence of a reflex sympathetic dystrophy which was consistent with lack of use of the left hand. The dystrophy was not severe, there being no muscle wasting or permanent contractures: see reports dated 14 and 28 -- 3 of 14 -- 4 October 1986 (exhibits 4 and 5). Dr Margaret Kidd, physician and rheumatologist, who examined the plaintiff in October 1991 said in a report dated 23 October 1991 (exhibit 3) that the plaintiff's condition when she saw him was "suggestive of some problem in the soft tissue area of the left hand and wrist, resulting in loss of function of tissues such as muscles and tendons". The weight of opinion is however against there being any residual organic damage of the sort Dr Kidd postulated and I do not accept her evidence on this point. My conclusion is that it is more probable than not that as a result of the prolonged hammering with the heavy and unwieldy implement supplied to the plaintiff, he suffered severe muscular and ligamentous strain to his left hand and forearm which caused pain and discomfort. The physical injury he suffered was not, I find, permanent. It is not possible to be precise as to when the effects of the physical injury to the plaintiff came to an end because the symptoms of pain and discomfort have continued as a result of the onset of the effects of an hysterical neurosis. On the evidence before me, however, I conclude that it is more probable than not that the plaintiff had recovered from the physical effects of the hammering six months after he stopped work in November 1984. I shall return to the subject of the course the plaintiff's injuries took after April 1985 after I have dealt with the question whether the defendant is liable to compensate the plaintiff for the physical injury he suffered. The plaintiff complained to his brother Robert about having to use the hammer: it was too heavy, and unbalanced in that it tended to twist on the downstroke thereby causing the striking face to hit the meat at an angle unless extra force were applied to correct that movement. He had not been directed to do all of the hammering, but other employees of the defendant refused to do it. The plaintiff had designed a hammer himself for the task when he had been previously employed by the defendant at Warwick, but in October and November 1984 a hammer of the plaintiff's design was not available and Robert had exhibit 26 made to his specifications. Robert told the plaintiff that he had had exhibit 26 constructed as it was because it was cheaper than the hammer of the plaintiff's design. Robert -- 4 of 14 -- 5 avoided using the hammer himself, although when he had time he did other work in the butcher's shop, such as cutting up meat. The plaintiff told Robert about a machine that could flatten meat satisfactorily, and the defendant purchased such a machine for about $2,000.00 two weeks after the plaintiff stopped work. The installation of the machine would have eliminated the risk of injury of the kind suffered by the plaintiff. There was, I find, a reasonably foreseeable risk of injury to the plaintiff from the constant hammering. The risk of such injury was substantial, not remote or fanciful. It went beyond the risk of a brief period of pain or stiffness that might be expected to be suffered for instance by a carpenter after using a hammer. The constancy of the plaintiff's task, and the weight and design of the hammer put this case in quite a different category from that of a carpenter. The means of avoiding the risk of injury to the plaintiff would not have been difficult or expensive to implement. In the circumstances I conclude that the defendant failed to exercise reasonable care to establish and maintain a safe system of work for the plaintiff. The defendant then was guilty of negligence and as a result of that negligence the plaintiff suffered a physical injury. To understand the course that the plaintiff's condition took after April 1985 it is necessary to know something of his family history. The plaintiff is the fourth of five brothers. The eldest is Gregory, the doctor. Then there is David, a plant operator. The next is Robert, and after the plaintiff there is Michael, a chartered accountant. The plaintiff was educated at a state school in Brisbane, then at the Church of England Boys' School at Toowoomba to scholarship. After scholarship he went to the Brisbane Grammar School to junior, and after that had a year at the Gatton Agricultural College. His intelligence is in the normal range but his academic achievement was modest and hampered by dyslexia. After his year at Gatton, the plaintiff went to work as a labourer at a family beef cattle property called Monver, which is between Mareeba and Atherton. He worked there with his father, Robert, and David for about eleven years apart from twelve months when he went away to drive tractors. He was paid nothing at all by the family - not even pocket money - in return for working long hours. He was -- 5 of 14 -- 6 promised a share in the property as his reward but that promise was never honoured. He feels particular animosity towards Robert. When he spoke to Dr Peter Mulholland, psychiatrist, on 26 May 1995 about these matters he told Dr Mulholland that Robert always had the greatest influence over his father and that he regarded Robert as the favourite son. He told Dr Mulholland that he grew up with "feelings of resentment and feelings of being used and exploited in respect of the family and mainly the father". Dr Mulholland recorded that he "had feelings of resentment, anger and jealousy in respect of Robert". The plaintiff left Monver in about 1973. He said that he had had enough because he was doing all of the work and getting none of the rewards. He then worked in Victoria for about ten years at a number occupations: driver of an asphalt-laying machine, taxi driver, organizer of advertising for a direct-selling company, labourer extruding plastics, share farmer, insurance salesman, and forklift truck salesman. In addition he dredged for gold and made jewellery which he sold at markets. He was unemployed from time to time when he was in Victoria and received unemployment benefits. He was unemployed and receiving unemployment benefits when Robert telephoned him in 1982 and offered him, and he accepted, the job of foreman in a meat packing plant in Warwick. The defendant and the owners of the Warwick Bacon Factory were partners in the business, which traded as South Downs Packers. The plaintiff's resentment of other members of his family, and of Robert in particular, did not abate when he returned to Queensland. Again he was employed in a position inferior to Robert. Robert was the "king pin" by the time the plaintiff was hammering the pieces of meat at the shop at Oxley in which the defendant carried on business after the venture in Warwick came to an end. The plaintiff said this about Robert's designing the hammer as he did: "My own honest interpretation of the reason for Robert's design and I have always felt this, it was done purely on economic grounds and if you know and understand Robert, Robert looks after Robert number one, Robert number two, and Robert number three and the rest of the world comes fourth". It was in that setting of resentment of other members of his family that the plaintiff began to -- 6 of 14 -- 7 feel the physical effects of his constant hammering. Dr David Jenkins, psychiatrist, interviewed the plaintiff on 25 November 1986. In his report dated 29 April 1987 (exhibit 1) he expressed the opinions that the plaintiff was a man with desirable obsessional traits and that in the absence of any demonstrable physical cause for his continuing pain it could be that the fact that he was forced to use a hammer which did not comply with his own specifications had produced a psychogenic pain disorder. Another psychiatrist, the late Dr Raymond James, examined the plaintiff on 12 December 1989. In his report of 18 December 1989 (exhibit 23) Dr James recorded his opinion that the persistence of symptoms of pain and loss of function of the left hand "represent an hysterical neurosis. The persisting pain should be diagnosed as Somatoform Pain Disorder and the apparent weakness of the three fingers of the left hand represents an hysterical conversion symptom of motor weakness". Dr James's conclusion about the cause of the plaintiff's disorder is as follows: I am requested to draw any nexus between the psychiatric condition and the circumstances leading to the initial strain injury. The initial strain injury was a physical injury caused by using the hammer. This would have resulted in some pain in the left hand. The pain should have subsided over some months but did not do so and an hysterical neurosis developed. The reason that the hysterical neurosis developed is obviously a complicated relationship between Allen Beaver and his family, involving his perception of the way he felt his family had treated him over the years, and it is principally because of his personality and his emotional relationship with family members involved in the business, that this hysterical neurosis developed. I think it is probable that at some time in the future, some type of neurotic disorder would have developed in this man if he had continued to be employed by members of his family. The neurosis developed when it did because he was in an unusual employment situation, as the only employee of the family, he had to do very hard physical work with an implement which he did not like and which he had been instructed to use by his immediate superior, a brother with whom he had some long standing personality conflict. Acute muscular and ligamentous strain in the left hand was the immediate precipitant of the neurotic disorder. The neurosis has persisted because of secondary gains such as avoidance of an unpleasant work situation, unresolved psychological conflict with his family, and prospects of financial gain. Dr Mulholland said in evidence that he agreed with the first of those quoted paragraphs and -- 7 of 14 -- 8 substantially agreed with the second. I accept as correct Dr James's analysis of the plaintiff's condition. I also accept as correct Dr Mulholland's opinions, set out in paragraphs 11.6, 11.7, and 11.8 of his report of 9 June 1995 (exhibit 7), of the plaintiff's lack of need for treatment, the likely future course of his disability and symptoms, and the genuineness of his complaints: 11.6 I would not recommend any psychiatric treatment at this time and do not see the need for any psychiatric treatment in the future. 11.7 He is not suitable and will not be suitable for returning to any of his previous occupations. I do not think that the conclusion of litigation is going to produce any significant alternation to the functioning of his left hand. Whatever the aetiology of the problems with his left hand the result has been that he now has had a significantly functionally impaired left hand for ten years and it is too much to expect that, unless he is a frank malingerer, he is going to have any significant recovery of function or significant diminution of symptoms. 11.8 There was nothing at interview to suggest that he is or has been a malingerer and there is nothing coming through in the various reports which would indicate same. I conclude then that although the physical injury suffered by the plaintiff as a result of the defendant's negligence probably cleared up by about April 1985 the symptoms of that injury have continued to afflict him because of the effect of the hysterical neurosis. It appears to me that the chain of causation of the plaintiff's hysterical neurosis leads back to the defendant's unsafe system of work, and that a neurosis of the type suffered by the plaintiff was a reasonably foreseeable effect of the defendant's system. The plaintiff was of course particularly vulnerable as an employee of this defendant, but the defendant had to take the plaintiff as it found him. The plaintiff was born on 4 October 1947 so he was thirty-seven years old in November 1984. He was in good health before then. He is married and lives with his wife in a rented house on a dairy farm forty kilometres outside Warwick. The owners of the farm allow him to run two horses. He pays nothing for agistment, but does some work on the farm. He has three children: a son born in 1974, a daughter born in 1976, and another daughter born in 1979. On 9 September 1985 the plaintiff returned to work in premises at Hemmant for a company -- 8 of 14 -- 9 called Kudos Meat Products Pty Ltd in which other members of his family had an interest - he said in evidence that the defendant "evolved into" Kudos Meats. He was employed as a supervisor on a reduced wage of $100.00 a week because his duties were confined to supervision and no physical work was required of him. He resigned on 30 October 1985 chiefly, it appears, because although he was still paid worker's compensation while employed by the company there was an adverse financial effect brought about by his being employed: for every $1.00 he earned he lost $1.23 in worker's compensation. On 30 October 1985 he sent a letter to the Workers' Compensation Board of Queensland explaining that he could "no longer afford to work" (exhibit 27). A letter dated 12 September 1990 from the Damages Claims Officer of the Board to the defendant's solicitors (exhibit 10) shows that the plaintiff received full worker's compensation benefits for the period from 16 November 1984 to 6 September 1985 and again from 31 October 1985 to 29 June 1987. From 9 September to 30 October 1985 he received benefits to compensate for diminished earnings. Since July 1987 the plaintiff has received social security payments from the Commonwealth. At present he receives a disability support pension. In the letter to the Board dated 30 October 1985 the plaintiff said that since his injury in November 1984 his hand had not improved significantly and he was still unable to perform many tasks with it, but the reason given for his resignation was, as I have related, financial rather than inability to cope with his job. He gave evidence however, that the pain he was suffering was his reason for quitting - indeed he had been very close to chopping his arm off to alleviate the pain, he said. Changes in temperature, particularly when walking into and out of freezing chambers as it appears he was required to do, cause him pain and discomfort. The only other paid employment the plaintiff has had since 1985 was as the driver of a school bus from 1 October 1987 to 13 May 1988. He drove the bus for one hour in the mornings and for one hour in the afternoons and was paid $100.00 per week again. Those earnings did not interfere with his pension entitlement. He was sacked however after a collision on 13 May 1988 between a truck and the bus which he had driven onto a highway past a Give Way sign. He was charged with and convicted of -- 9 of 14 -- 10 dangerous driving causing grievous bodily harm and fined $500.00. In the collision he suffered soft tissue injury to his right leg. He made a satisfactory recovery although he has been left with a slight limp. On the farm where the plaintiff now lives, he milks the cows - there are just under 100 - two or three times a week. He uses a chainsaw and block splitter for about an hour at a time to cut wood for his stove and an open fire in the house. He also drives a tractor for six to eight hours and rides horses. He is studying for a Associate Diploma in Information Technology at the Toowoomba Technical and Further Education College which he attends two days a week. He would like to establish a business setting up computers and writing computer programs for farmers. He says that before he was injured in November 1984 he had intended working until he reached the age of sixty-five or seventy years. The plaintiff claims that he is seriously disabled as a result of the injury to his hand. He is unable to write more than three sentences. He is unable to take the tops off screw-top containers and to do up buttons. He wears a leather splint with an aluminium bar in it on his left hand so that that hand is able to act as a single digital claw. He wears it about sixty to seventy per cent. of the time when he is "out and about" and about twenty per cent. of the time when he is at home. He also wears a glove on his left hand to keep it warm. Draughts and changes in atmospheric conditions cause him pain. He is unable to engage in the sport of judo as he did before November 1984, and he is subject to bouts of depression and irritability which he did not have before November 1984. The plaintiff has suffered, and will continue to suffer, considerable pain and discomfort from his condition. I assess his damages for pain and suffering and loss of amenities at $40,000.00: $20,000.00 for the past, and $20,000.00 for the future. The plaintiff claims that his earning capacity has been seriously impaired by his injury. The assumptions made by the accountants who prepared a calculation of the plaintiff's losses resulting from impairment of his earning capacity (report dated 12 October 1995, exhibit 41) were first that had the plaintiff not been injured he would have been continuously employed by the defendant or Kudos -- 10 of 14 -- 11 Meat Products Pty Ltd until he retired at the age of either sixty or sixty-five years, and secondly that as a result of his being injured, "as from May 1988 Mr Beaver may be unable to return to employment of any kind". The accountants reached three sets of results for past and future losses of earning capacity - one as high as $689,588.00 - and loss of superannuation benefits depending on further assumptions about the positions the plaintiff would have occupied (process worker, foreman, or manager) and depending on whether he retired at the age of sixty years or sixty-five years. I am not satisfied, however, that the first two assumptions are borne out by the evidence. In the first place I think it extremely unlikely that the employee-employer association between the plaintiff and his family would have continued for very long after 1984 even if the plaintiff had not been injured. The resentment the plaintiff felt towards Robert and other members of his family would sooner rather than later have led to a further break in their association. The plaintiff's history of frequent changes of employment in Victoria reinforces the conclusion that it is most unlikely he would have stayed with the one employer for very long. Secondly, in my view the plaintiff has some residue of his former, not large, earning capacity. For a short time before he was injured in November 1984 the plaintiff had been earning $300.00 per week, but his income tax returns for the three years to 30 June 1985 (exhibits 28, 29, and 30) reveal an extremely modest earning capacity. The plaintiff said that those returns were compiled "way after the events", but I see no reason to doubt their accuracy. In the year which ended on 30 June 1983 his total income was $8,684.00, of which $5,084.00 came from unemployment or sickness benefits from June 1982 to March 1983. The remaining $3,600.00 was from employment by the defendant from March 1983 to 30 June 1983. In the following financial year his total income was $9,696.00, of which $1,866.00 came from worker's compensation paid from 20 to 27 March 1984 ($244.00) and unemployment, sickness or special benefits paid from 9 April to 18 June 1984 ($1,622.00). The remaining $7,830.00 was from employment by the defendant for an unspecified period. In the year which ended 30 June 1985 his total income was $12,837.00, of which $11,217.00 -- 11 of 14 -- 12 came from unemployment, sickness, and special benefits paid from 2 July to 9 October 1984 ($2,386.00) and worker's compensation paid from 16 November 1984 to 26 June 1985 ($8,831.00). The remaining $1,620.00 was shown as being from employment from the defendant from 9 October 1984 to 30 June 1985, but since the plaintiff was receiving worker's compensation from 16 November 1984 to the end of the financial year it seems clear that his period of his employment with the defendant in that year was from 9 October 1984 to 15 November 1984, when he was receiving $300.00 per week. In the two years and four and a half months ending on 15 November 1984 the plaintiff's total earnings from paid employment were then, ignoring the incidence of income tax, $13,050.00. No other income tax returns were put before me, but bearing in mind the evidence as to the plaintiff's history of employment before he returned to Queensland in 1982 I conclude that his earning capacity was far below that assumed by the accountants. The history of his earnings when employed in family enterprises shows a low level indeed. The interlude in Victoria was characterized not only by frequent change in type of employment but also by periods without work. For the eleven years and five months to now I think that an assessment for impairment of earning capacity of $59,000.00 based upon a loss of $100.00 per week after the deduction of income tax is appropriate ($100.00 multiplied by fifty-two multiplied by eleven and five-twelfths gives $59,366.67). In reaching that figure I have taken into account his previous history and also his residual earning capacity, some of which was used to earn money (in September and October 1985 and from October 1987 to May 1988, at $100.00 per week in each instance) and some of which was not. His work on the farm and his undertaking the course in Toowoomba shows some further unused residual earning capacity in my view. For future impairment of earning capacity I think that an assessment based on a loss of $75.00 per week after the deduction of income tax is appropriate. The figure for the future is less than that for the past because it appears to me that for some time after November 1984, but not until now, the plaintiff would have remained employed by the defendant at the rate of approximately $300.00 per week before the deduction of income tax. By now it is likely, I conclude, that he would have been -- 12 of 14 -- 13 relying on employment outside his family, thus making some repetition of the erratic pattern shown when he went to Victoria also likely. It also seems likely that with the passage of time he will find a niche for such talents as he has with computers and farming. Applying the five per cent. table to the $75.00 per week for 17 years (i.e. assuming retirement at the age of sixty-five years) I arrive at $45,225.00. Adjusting for contingencies not already taken into account, such as ill-health and incapacity unrelated to his present condition or its causes, I shall allow $40,000.00 for future impairment of earning capacity. I accept Mrs Beaver's evidence that from 16 November 1984 to 25 April 1985 she provided the plaintiff with voluntary assistance and services for about two hours per day and that since the latter date her assistance and services have continued, but have, with the passage of time, been reduced to one hour per week. The plaintiff asserts that the value of his wife's assistance and services should be assessed at $5.50 per hour to 25 April 1985 and after that at $6.00 per hour. Those rates are established by a report dated 15 June 1995 from Domicare (exhibit 44) and I accept that they apply to this aspect of the plaintiff's claim. For the twenty-three weeks to 25 April 1985 I arrive at $1,771.00, which I round off to $1,750.00. As I think it is likely that the need for assistance and services fell off more steeply earlier in the period of eleven years since 25 April 1985 than it did later I arrive at $15,000.00 for the eleven years. The plaintiff claims a sum for his future need for voluntary assistance and services based on the value of his present needs claimed at $6.00 per week. I am satisfied, as I have indicated, that that value is established by the evidence. The three per cent. table should then be applied to that sum. The three per cent. table is the appropriate one for this part of the plaintiff's claim because it falls into neither category in s.16(1) of the Supreme Court Act 1995. It is not a claim in respect of damage that is referable to deprivation or impairment of earning capacity or to a liability to incur expenditure in the future. It is in respect of the future need for voluntary assistance and services, and not in respect of any liability the plaintiff may incur for that assistance and those services. Since the five per cent. table does not apply the three per cent. table will: see Todorovic v. Waller (1981) 150 C.L.R. 402. Allowing for a -- 13 of 14 -- 14 life expectancy of twenty-nine years, as agreed by the parties, and applying the three per cent. table to the $6.00 per week I arrive at $6,096.00. Adjusting for contingencies I shall allow $5,000.00 for the plaintiff's need for voluntary assistance and services in the future. The sum recoverable on the principle explained in Fox v. Wood (1981) 148 C.L.R. 438 is $4,295.38 (see exhibit 10). Special damages are $3,587.51: $1,503.10 for medical expenses (see exhibit 10), $449.91 for miscellaneous expenses (see exhibit 10), and $1,634.50 for rehabilitation expenses (see exhibit 11). There was evidence of pharmaceutical expenses but no claim was pursued under that head. The sum repayable to the Workers' Compensation Board is $38,621.07 (see exhibit 10). I shall invite further submissions on interest, the amount of the judgment, and costs. -- 14 of 14 --