Eaton v Nominal Defendant [1995] QSC 132 21 M.V.R. 357

TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DEMACK J No 135 of 1993 RUSSELL JOHN EATON and THE NOMINAL DEFENDANT MACKAY .. DATE 04/05/95 JUDGMENT Plaintiff Defendant - 4th Floor, The Law Courts, Geor~e Street, Brisbane, Q. 4000 Televhone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 21 -- 040595 (Demack J) HIS HONOUR: Mr Eaton was born on 3 October 1965. He was injured on 3 March 1988 when the motorcycle he was riding left the roadway and ran into a drain. At the time he was travelling from Mackay_ to Sarina along the Bruce Highway. The incident occurred south from the Greyhound Hotel in a straight stretch of road. The Bruce Highway at that point 10 serves as a road not only for general traffic travelling along the highway but also to provide a highway for people travelling from Mackay to Sarina. Mr Eaton had left work and was travelling to his residence. It had been raining and at the time of the incident light rain was still falling. Because Mr Eaton/s claim is that an unidentified vehicle was the cause of his injuries it is necessary to refer in some detail to his description of what happened. On page 13 of the transcript he described how he was travelling along behind a very slow moving vehicle and another one in front of it. The vehicle immediately in front of him was a utility. He said that it was doing about 60 kilometres an hour and he rode behind these two vehicles for a distance. He was then asked what was the speed limit on that stretch, and his answer - "100 kilometres an hour. I decided because it was a clear road, there was nothing coming, visibility was good. I decided I/d overtake the vehicle in front of me and at the time I recall he was sitting very close to the vehicle he was following and it didn/t look safe to overtake it and try to slip in between the two vehicles, so I proceeded to - I sat - I positioned my motorcycle like I always do. I had my headlight on. And I sat behind the driver/s field of vision in his mirrors. It was a male driver. I don/t recall anything about him, though. And there were only that one person in the car. I put my indicator on to - and started moving out to overtake. Before I actually moved up past that vehicle I noticed that he looked at me in the rear vision mirror and then he looked at me in the side mirror, too. I like to make sure that the car drivers have seen me. I 2 JUDGMENT 20 30 ~o 50 60 -- 2 of 21 -- 040595 (Demack J) started overtaking that vehicle and when I go up level with approximately his door, I think - this all happened with a space of seconds - that vehicle started to move out as if he was going to overtake the one in front of him. I tooted my horn and I backed off very - just momentarily. That car pulled back in. He looked at me and had moved to his own side of the road again and - I was beside his vehicle on the right-hand side of the road. I think I was probably about level with the back wheel of his car at that stage, round about that area. He saw me. He moved back over. He'd actually looked at 10 me. I saw his eyes in the mirrors. And so I proceeded to overtake him and I got up level with about his door and he suddenly veered out, hit my motorcycle and pushed me straight off the road. I remember getting the shove." (I have omitted several of the questions he was asked, so as to provide that continuous narrative.) He then described how he was flung into the ditch where there was water and remained there for about five minutes before he was able to drag himself to the side of the road. He subsequently contacted a solicitor who placed an advertisement in a local newspaper. Mr and Mrs. Schmidtke answered that advertisement and both of them gave evidence. They drove along the highway some time after the incident and saw Mr Eaton off the side of the road. They were travelling south. Mr Schmidtke turned round and they came back to offer assistance. Included in their evidence was the following details. Mr Schmidtke noted that Mr Eaton was "real concerned about the bike". Both noticed that he was upset and complaining about the people who had driven past and ignored him. Mr Schmidtke said he was swearing. Both also said that Mr Eaton alleged that someone had run him off the road. 3 JUDGMENT 20 _;,J 40 50 60 -- 3 of 21 -- 040595 (Demack J) There was debate about the admissibility of that latter statement and, indeed, of any weight that could be given to it. I reserved the question and it is necessary to refer to this issue now. Mr Dowling submitted that it was admissible as part of the Res Gestae. That concept is discussed extensively in Cross On Evidence, Australian edition, chapter 10 19. It remains an area of the law of evidence where opinions are still divided. However, without referring in detail to the issues that are debated in Cross, it seems to me clear enough that the facts of this case are so similar to those in Vocisano v Vocisano 1974 48 Australian Law Journal Reports, 20 157, that I am bound to follow that decision. In that case there was some dispute as to who was driving a particular vehicle and attempts were made to rely on statements made by the defendant to two persons who came to the scene of the accident shortly after its occurrence. The trial Judge admitted those statements as proof of the truth of what was said. That decision was reversed by the High Court. The judgment was given by Chief Justice Barwick. He discusses on page 159 the Privy Council decision of Ratten v The Queen 1972 Appeal Cases 375 and distinguished it in these words, "But in the present case there was, in my opinion, no sufficient contemporaneity of the statements made to either of the witnesses Smith to warrant the conclusion the statements were made as part of the res. The occurrence was the accident and although the statements by the respondent were made proximately to the occurrence of the accident, they were in the nature of an historical account rather than in the nature of a statement made as part and parcel of the occurrence." 4 JUDGMENT 40 50 60 -- 4 of 21 -- 040595 (Demack J) In those words, His Honour is virtually echoing the opinion of Mr Justice Dixon in Adelaide Chemical and Fertiliser Co versus Carlyle (1940) 46 Commonwealth Law Reports, 515. The different view taken in that case by Mr Justice Starke has, of course, led to much debate, and it certainly cannot be said that the law is clearly settled. However, as I say, the facts in Vocisano are so very similar to the ones here that I believe I am bound by that decision, and it seems to me then that the words Mr Eaton spoke to Mr and Mrs Schmidtlrn are to be regarded as a narrative of what had happened in the actual event, rather than an integral part of the event. As such the statements are not admissible as evidence of the truth of what was then said. This is, as I have mentioned, a claim against the Nominal Defendant. The Courts have consistently followed the decision of Freeman versus Griffiths (1976) 13 South Australian State Reports 494 at 496. The effect of that decision is well expressed in an unrepdrted decision of Mr Justice Derrington to which I have been referred, Bowman versus MVO, a decision of the 9 January 1991. His Honour said, "Where a claim is based on the alleged negligence 10 20 30 40 of an unknown driver of an unidentified vehicle and~ the only evidence of the circumstances of the accident is the account of the plaintiff himself, the ordinary civil standard of proof still applies, but the Court must adopt a more cautious approach to the determination of issues than it would in other cases, because it does not have the benefit of the story of the person whose conduct is under attack." That seems to me to be not simply a matter of a steady line so 5 JUDGMENT -- 5 of 21 -- 040595 (Demack J) of authority, but a matter of sound common sense. In the ordinary case, the Court can balance two accounts of an incident and can make a decision in that balancing process. Here, there is only the evidence of Mr Eaton, and that is uncorroborated in any particular. There were no eye witnesses; there were no skid marks; and no damage to the motor cycle that could indicate an impact has been proved. I quoted Mr Eaton's evidence in detail because it seemed to me that it was a story that contained a great deal of detail. This suggested the kind of reconstruction that arises from intense reflection. That in itself does not prove that the story is untruthful. It may be that he observed all that he says, and that in reflecting upon it, has honestly recalled all that he says happened. However, on the other hand, the detail may be an attempt to establish guilt on the part of the unidentified and unnamed driver. Obviously then, the credibility of Mr Eaton is of great importance. A number of issues were raised by Mr Barbeler for the Nominal Defendant, that affect Mr Eaton's credit. The most serious of these concerns a document which was prepared during a medical examination by Dr Reeves- Saunders and which Mr Eaton signed. That document contains false material. The circumstances in which that document came into being need to be set out in a little detail. Mr Eaton was seeking employment at the Plane Creek Mill for the 1990 crushing season. He was interviewed first by Mr Paul Giordani, who is 6 JUDGMENT 10 20 30 40 50 60 -- 6 of 21 -- 040595 (Demack J) now the chief field officer at the mill. Mr Eaton had previously worked at the mill following the accident. However, as it was a seasonal occupation, he sought a position for the 1990 crushing season. Mr Giordani in his statement which was tendered because he is absent overseas, says, "I can recall interviewing the plaintiff. During the interview, I went through a form of standard questions with him. One of the questions was about whether he had been involved in any prior accidents. I can recall that when I asked the plaintiff whether he had been involved in any accidents, he told me that he had been involved in a motor bike accident which was a hit and run, but he felt able to perform the work load of a locomotive driver's assistant." Mr Giordani then arranged for Mr Eaton to be medically 10 20 examined by Dr Reeves-Saunders. Mr Giordani's statement then _,0 goes on, "The medical examination report indicated Mr Eaton was physically suitable for the employment. Mr Eaton got that job." Mr Eaton's statement of evidence, which is Exhibit 24, refers to the medical examination in these terms, paragraph 57, 40 "From memory, the consultation took no longer than five minutes. I briefly explained to Dr Reeves- Saunders that I had a fractured vertebra but that I so did not feel that it would prevent me from performing shunting work. Dr Reeves-Saunders asked me several questions about my general medical history, such as previous illness and diseases. He then asked me to stand up and bend down and touch my toes, which I did. I then stood up using my arms to push myself up using my knees. I recall informing Dr Reeves-Saunders that I did not have any problems bending forward, but I needed to support myself as I stood back up. The only other 60 7 JUDGMENT -- 7 of 21 -- 040595 (Demack J) detail about the consultation that I can recall is Dr Reeves-Saunders telling me to "sign here on the form" and stating that it would be fine and that he would then return the form to the mill. I remember being surprised at the time that he did not ask me more questions or examined me more thoroughly, considering my back injury." He subsequently says, "At the time I signed the form, I did not really read it before signing it. If I had read the form thoroughly and realised that it stated I did not have a back injury, I would never have signed it, as I had been totally open and honest in my dealings with both the mill and Dr Reeves- Saunders." 8 JUDGMENT 10 20 :.JO 40 50 60 -- 8 of 21 -- 040595 (Demack J) Doctor Reeves-Saunders was called to give evidence and he was referred to the form in question which became Exhibit 43. That form is a printed form consisting of some five sheets. The first sheet was apparently filled in by Mr Giordani indicating the kind of work that was required of the position that Mr Eaton sought. 10 The form then has three pages which Doctor Reeves-Saunders says are in his handwriting and which were filled in by him in the course of the interview. He denies that the interview took only five minutes; saying that it could take a half an 20 hour or longer. He denies that Mr Eaton bent over and was unable to assume an erect posture without pushing up on his knees. He claims that all of the matters that were filled in were filled in following upon careful examination. It is not uncommon for plaintiffs in negligence cases to say that the doctor who examined them on behalf of the defendant performed a cursory examination. This is particularly said of specialists who operate from Brisbane and who seem to be able to perform a large number of examinations on a regular basis. The situation here is very different because Doctor Reeves-Saunders is a member of a practice in Sarina. He says that many of the people who work at the mill are their patients. Consequently he is not simply performing a medical examination on behalf of the Plane Creek Mill, but is also dealing with people who may well become his patients. 9 JUDGMENT 40 50 60 -- 9 of 21 -- 040595 (Demack J) Apart from any question of professional ethic and responsibility, he has the clear monetary perspective also, that if he wishes to ensure that people come to his practice, he needs at all times to show a proper professional attitude. Consequently, on this issue, I prefer his evidence to that of Mr Eaton about the circumstances in which the interview took 10 place and in which Exhibit 43 was filled in. I accept that Mr Eaton told Mr Reeves-Saunders that he had never had back strain or pain and that he signed the declaration at the bottom of the page on which that appeared. 20 It is perfectly understandable that a person eager for a job, and conscious of a disability, might fail to disclose that disability if he thought he could handle the job and if he thought that the disclosure would be detrimental to obtaining the job. Here, Mr Eaton knew that Mr Giordani required the medical certificate. He had previously worked at the mill and had received encouragement from Mr Giordani, apparently, in the idea that he would be able to gain work for another season. What stood between him and getting that work was the obtaining of an appropriate medical certificate to show that he was fit for the job. The final sheet on Exhibit 43 is the Health Assessment Report and on that Doctor Reeves-Saunders gave Mr Eaton a normal health rating in relation to the specific job requirements and work conditions for the position under consideration. 10 JUDGMENT JO 40 50 60 -- 10 of 21 -- 040595 (Demack J) It seems to me here that, not only has Mr Eaton failed to disclose the truth to Doctor Reeves-Saunders about his back, but he has deliberately impugned the credit of Doctor Reeves-Saunders- and suggested quite unprofessional conduct on the part of that doctor. This seems to me, seriously, to affect his credibility. 10 Other matters were raised affecting his credibility. One was the fact that he had answered an interrogatory saying that no one rendered gratuitous services in respect of his care. He now seeks to make a claim for services gratuitously rendered. 20 He says he did not understand what the word meant and, although it is a word in common enough use, it does not seem to me that that particular answer in itself, raises serious doubts about his reliability. Another matter that has concerned me, although it is not so much a question of credibility, but of an unusual approach to problem solving. After he had worked on the first occasion at the mill he returned to Victoria and obtained a job at the State Bank. He found that working in Melbourne left him unsupported by the people who had meant a lot to him at Benalla. He sought a transfer to Benalla, but was unable to get that. It was then suggested to him that he could resign from the Melbourne branch and try and seek a new position in some regional part of the bank which could get him to Benalla. This apparently involved him in the loss of a low interest housing loan and he desired a house at Benalla. Instead of 11 JUDGMENT 40 50 60 -- 11 of 21 -- 040595 (Demack J) moving directly to Benalla, he sought the work at the Plane Creek Mill, hoping to raise the deposit on the house in that way. It may be that this kind of complex planning is a normal part of life, but it certainly seemed to me to suggest a mind that could seek out quite detailed ways of gaining a perceived advantage. There is also criticism of various matters that Mr Eaton told the doctors. These variations are common enough and, although they leave one with some puzzlement at times, they generally do not amount to a great deal. Here, however, there is the puzzling circumstance that was not pursued in the trial; that when Mr Eaton saw the psychiatrist, Doctor Kenny, he mentioned nothing about his biological family in Sarina that he had attempted to make contact with just prior to the accident, and of the pain and frustration that developed in that relationship after the accident. This again, of course, is an omission which may be attributed to the fact that the doctor did not ask him, but it does seem to have been a significant emotional experience that remains undisclosed to the person who is the expert on such matters. However, clearly, the serious matter affecting credit is the conflict with Doctor Reeves-Saunders and, as I have said, I accept the evidence of Doctor Reeves-Saunders in preference to that of Mr Eaton. 1 2 JUDGMENT 20 30 40 50 60 -- 12 of 21 -- 040595 (Demack J) This conflict goes very much to the heart of the issue here. In simple terms it can be asked if he was prepared to lie to gain a job, is he prepared to lie to seek compensation? Even discounting his story to take out what may be the product of angry reflection, such as seeing the eyes in the mirror and the deliberate striking, the account is still uncorroborated 10 in any way and comes from someone whose credit is seriously affected. The road was wet and it was raining. It seems to me that in the circumstances there are at least three possible explanations for Mr Eaton's injuries. He could have been forced off the road, as he said. Further, he could have simply lost control of the bike while overtaking, and he had previously had an accident on a trail bike. He discounted 20 that as involving entirely different circumstances, but it 10 does at least show that on a previous incident he failed to control a motorcycle. There is also the third possibility that he was travelling in the driver's blind spot and that the driver ahead of him came out without warning because he was unaware of the presence of the motorcycle and that in 40 evading the vehicle Mr Eaton lost control of his vehicle. Only Mr Eaton's testimony established the first of those propositions and it seems to me the others are equally likely, in the circumstances here. Mr Eaton's credit, as I have said, has been seriously impugned. I am not satisfied, on the balance of probabilities, that any unidentified motor vehicle negligently caused the plaintiff to leave the road and sustain injuries. 1 3 JUDGMENT 50 60 -- 13 of 21 -- 040595 (Demack J) It is necessary, however, to proceed to assess damages. Mr Eaton was admitted to the Mackay Base Hospital. The hospital report says that X-rays showed a crushed fracture of L3. It seems to be agreed by the experts that this should really be a reference to L2. Indeed, L1 was also involved in a crush fracture. The uncertainty arises from the fact that 10 the fifth lumbar vertebrae is partially sacralized, that is attached to the sacrum. This is a congenital defect. It has meant that the bottom lumbar vertebrae is tilted forward on the sacrum and this has produced a congenital defect, to which I will refer. 20 Mr Eaton was in hospital until 6 March 1988. Mr Eaton had been adopted when he was 10 days old and reared in a family in Victoria. In about 1987 he located his biological mother in Sarina. He spent some of his holidays there toward the 30 end of 1987. He then returned to Benalla where he had been living and working in the State Bank. He quit his bank job, apparently sold his house and moved to Sarina to live with his newly found biological family. He got a job with Capricornia Credit Union and he sustained the injury on the 40 fourth day he was at work. On his discharge from hospital he was cared for by his biological mother, Mrs Catherine Hutton. He said in his statement that paragraph 30 "I do not think that Catherine understood the severity of my injuries and the extreme pain that I was suffering. After a while I felt really uncomfortable staying there. I felt very lonely and isolated and was very depressed about everything." 1 4 JUDGMENT 50 60 -- 14 of 21 -- 040595 (Demack J) Mrs Hutton was able to get work for him as a taxation consultant in the firm with whom she worked at Sarina. He said that this job did not pay enough to support him. He moved out to live with.his biological brother, Ron North, and he stayed with them for some three months. He was able to get a job at the Plane Creek Mill because Ron was a 10 locomotive driver at the mill and recommended him. He obtained a cleaning position which involved apparently quite strenuous work. He says that his fellow workers were aware of his back injury and assisted him. That they were reasonably sympathetic and allowed him to work at his own pace. He was moved to the position of a trades assistant and that job was much easier and he managed to complete the season. 20 He says that he returned to Melbourne for Christmas and spent ;o that time with his adoptive family. He returned to Sarina after the Christmas break and says, "Because of the unhappy memories of my accident the tension with my family afterwards and that fact that I had not really been able to get out and make friends in Sarina, I decided to go back to Victoria and live down there." He was unemployed for a time but then obtained work with the State Bank. As I have said before, he was unhappy in Melbourne and had this idea of getting to Benalla, but in fact ended up working in Sarina for another crushing season. He went back after that but the State Bank had collapsed and banks were generally not taking on staff. He became very depressed and drank excessively. He sought psychiatric help. 1 5 JUDGMENT 40 50 60 -- 15 of 21 -- 040595 D.1 T5/KS M/T MKY210/95 (Demack J) On 1 March 1993 he got a job with the Benalla Shire Council and has stayed on there to become a community development officer. As I mentioned, he does have a congenital condition in his lower lumbar spine and there has been quite intense debate 10 among the specialists about the interaction of that congenital defect and the obvious damage he suffered in the accident. As I understand the situation, the way in which the lower lumbar vertebra is partly sacralized means that prior to the accident that lumbar vertebra was tilted forward. This was accommodated to by his body over a period of time by the fourth lumbar vertebra slipping backwards to a degree and allowing him to assume an upright posture. This backward slip is generally described as a retrolisthesis and there has been debate about the presence of such a condition and whether it indicates an abnormal disc between the two vertebrae. I do not propose to recite the evidence in great detail on this point because I accept the evidence of the specialist radiologist, Dr O'Sullivan, who has taken :MRI pictures and adequately described them. I am satisfied that the L4/5 disc is not degenerate. Certainly the disc space between LS and S1 is narrowed, but that is narrowed because of the congenital defected and given that defect, that narrowing is normal for Mr Eaton. This case certainly illustrated the difficulty in the use of words when doctors tried to meet the 1 6 JUDGMENT 20 30 40 50 60 -- 16 of 21 -- 040595 D.1 T5/KS M/T MKY210/95 (Demack J) demands of lawyers that they do not use all technical language. There seemed to be a great deal of semantic debate that ensued from this. I accept then that prior to the accident there was no degeneration in the L4/5 disc and that since the accident there has not been the development of any degenerative condition there. However, because that disc was under the pressure associated with the congenital defect, there was a possibility that degeneration would occur at a much later date in Mr Eaton's life. What happened with the crush fractures with L1 and 2 was that there was a loss of vertebral body height so that again Mr Eaton's spine was tilted forward. The disc space is badly 10 20 degenerate and there is also the loss of body height in the 30 vertebrae. There was again considerable debate about whether this joint was unstable. I prefer the evidence of Mr Schofield about this because although, as Dr Morgan says, there are still two of the stabilising columns in place, the loss of height in the vertebrae and the associated damage to the disc seem to me to introduce a level of instability in the sense that balance has been altered. It really is like shortening one leg on a three leg milking stool and it would seem to me that such a milking stool is unstable, not becauase it may move, but because it is not a stable place for the person who sits on it. 1 7 JUDGMENT 40 50 60 -- 17 of 21 -- 040595 D.1 T5/KS M/T MKY210/95 (Demack J) There is then considerable debate about whether surgery would improve the condition at L1 and 2. The weight of medical opinion seems to be against surgery but I was impressed by Mr Schofield's openness and his willingness to respond to information as it unfolded through the various tests that have been performed over time. He seemed to me to avoid extreme dogmatism and to have a genuine concern to offer a responsible opinion. While the operation he proposes is at present one that is 10 uncommon in Australia and one that is very complicated, it 20 seems to me likely that at some time in the future such an operation will not only be necessary but beneficial to Mr Eaton. At present Mr Eaton is not wanting to have the surgery because of all he has heard about the risks but it seems to me from the point of view of assessing damages an amount for the surgery should be included. The assessment of economic loss in this case is extremely difficult. At the time of the accident it must be said that Mr Eaton's lifestyle was unstable. He had left the family with which he had grown up in the hope of establishing a new relationship with his biological family. I have quoted passages from his statement which indicate that following the accident that attempt did not work. Whether it would have worked but for the accident, no one can say, and certainly this is not an issue where psychiatric opinion has been brought to bear. 1 8 JUDGMENT 40 50 60 -- 18 of 21 -- 040595 D.1 T5/KS M/T MKY210/95 (Demack J) After a time in Sarina, Mr Eaton went back to his bank work and he now has work of a clerical kind which brings him into the same general range of salary that he would have got at the bank. There have, .of course, been the unfortunate circumstances in respect of the State Bank of Victoria, that it was taken over by the Commonwealth Bank and it remains 10 common knowledge that redundancies in banks are part of the scene both in the past and at present. In assessing economic loss, the accountants have taken the pay scales available in the Commonwealth Bank and Mr Barbeler, it seems to me, rightly points out that this is of limited value, for the reasons I have given. In assessing past economic loss I am guided by the way in 20 which Mr Dowling has prepared his submissions. In respect of 30 past economic loss he has used the figures worked out on the basis of employment in the bank and he has also set out the income that has actually been received through earnings and the income received from social security payments and workers compensation payments. 40 50 60 1 9 JUDGMENT -- 19 of 21 -- 040595 (Demack J) On the basis of those latter figures, I would allow as past economic loss, the amount of $26,000, but not allow interest, because that is close to the amount that has been received by way of social security payments and workers' compensation payments. For future economic loss, it seems to me that there are two matters that need to be taken into account. First, there is the general disadvantage that Mr Eaton has on the open labour market because of his quite severe disability in his spine, and there is also the need to allow for the very strong possibility, it seems to me, that he will not be able to work for as long into the future as he would have done if he had not received the injury. For his general disadvantage on the labour market, I will allow the sum of $20,000. For the future uncertainties that arise because of his injury, I would allow the further sum of $45,000. I have reached that latter sum by taking account of the fact that on the bank figures he could earn $450 a week as an assistant manager. It seems to me that looking ahead in the future, say, from the age of somewhere round about 55 to 65, where the loss will occur, the multiplier is of the order of 100, hence a figure of $45,000. So I would assess the future economic loss of $65,000. A number of items are not in dispute, and I would accept the figures that Mr Dowling has set out in his item 6, 7, 8, and 9. 9, of course, is the Griffiths and Kerkemeyer matter. 20 JUDGMENT 10 20 jJ 40 50 60 -- 20 of 21 -- 040595 (Demack J) It seems to me that that is still a loss which is quite clearly proved, and the only relevance of the answer to the interrogatory is in respect of credit. I would also allow the sum of $10,000 for future surgery. So far as pain, suffering, and loss of amenities are concerned, Mr Eaton has a serious disability that interferes with his lifestyle. It has led to severe depression. In March this year he attempted suicide following the adjournment of his trial which could not come on because of other matters ahead of it on the list. He will always have some pain and discomfort which may well lead to surgery. The surgery, if it happens, will be very complicated an distressing, and will have a long period of rehabilitation. For all these matters, I would allow the sum of $55,000; 25,000 of which should bear interest, which I would assess $3,500. In view of my findings on the question of liability, the action is dismissed with costs. 21 JUDGMENT 10 20 30 40 50 60 -- 21 of 21 --