Donnelly v Patrick Operations Pty Ltd [1993] QSC 279

....... '. .. :, \~ State Reporting Bureau 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.) · ·-· ·-··--··--- -~-~ ->-::~·:-::; ):SIJ SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WHITE J No 3011 of 1989 KEVIN JOHN DONNELLY and PATRICK OPERATIONS PTY LIMITED BRISBANE •• DATE 08/10/93 ORDER 1 D:1te 2; I~ q_~ I Plaintiff Defendant -- 1 of 40 -- 081093 HER HONOUR_: It seems to me that t~e draft order with the. exception o~ the orders with respect to two counsel is satisfactory. In relation to the matter of two counsel, as I understc;md the position, it_ has generally been in the past that either the particular complexity or size of a matter warrants the briefing .of two counsel, or the very sp~cial skills that senior counsel bring to a particuiar action, usually at the request of the plaintiff or the defendant on the advice of the solicitor. If one were retaining counsel prior to a change in the ethical rulings of the Bar Association of Queensland, that necessari.l:-Y brought in in its shadow, as it were, the services of junior counsel, but the Bar Association has changed its position in this regard and it is now no longer an ethical requirement that senior ·counsel appear only with junior counsel in a matter. Now this act~on took place from 13 September to 16 September. It was a-personal injuries action. The quantum recovered is relatively large, and the issues in dispute at the beginning of the trial, and that is of course what I am really concerned with, were liability and quantum. The issues of quantum that were in disput~ were largely confined to the question of the appropriate way to approach the compensation to the ,plaintiff - for past gratui taus care that· was rendered to him by his wife, and the way in which that care should be provided for in , the future. Nearly all the ·other matters were really not in contention at all. With respect to liability, it seemed to me to be a 2 ORDER 10 20 30 40 50 60 -- 2 of 40 -- 081093 relatively straight~ forward matter. The issue of contributory "negligence was· certainly large, but· it. seemed· to have no more compl~xity that any ordinary personal injuries liability issue. Mr Clifford QC who appeared as leader in this matter is of course eminently well known as bringing special expertise to personal injuries actions. There were not a large number of witnesses involved in the case, particularly there were not a great many specialists who might have needed more vigorous proving than would be the case with other witnesses. I have recently had a look at the decision of Jovanovski v. Tafcom Contractors Pty Ltd (in liquidation) No 4014 of 1987, a judgment of Mr Justice Dowsett of 19 March 1993, reference to which. appears in the recent issue of Proctor, of September 1993, and in that case his Honour declined to allow for two counsel in a personal injuries action on the basis that there was no undue complexity involved in the matter notwithstanding the large sum of money, the subject of the judgment. That was a tax;ation case, but the principles seem to be similar, and I am disposed to follow tne position taken by his Honour in that case. In this matter it seems to me that the defendant ought only to be liable to pay the costs of Mr Clifford QC. I am not saying ·it was not appropriate, if the plaintiff instructed, ·to have Mr Ambrose in. the matter, but in terms of what was necessary for the conduct of the trial, it seems to me only one counsel was necessary. 3 ORDER 10 20 30 40 50 60 -- 3 of 40 -- 081093 Accordingly, I will amend the draft order where reference to two counsel appears, otherwise it is order as per draft. 4 ORDER . - . 10 20 30 40 50 60 -- 4 of 40 -- ----- ---·--- - • State RepOrting Bureau ~\t.!illi!L . ..: '• 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 QUEE~SLAND ~IVIL JURISDICTION WHITE J No 3011 of 1989 KEVIN JOHN DONNELLY and PATRICK OPERATIONS PTY LIMITED BRISBANE .. DATE 29/09/93 JUDGMENT ~J!SE@~~RISSlUm 1 sta't§ f{~~ 9ureau Date Plaintiff Defendant 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 5 of 40 -- 290993 jjh/lrb (White J) HER HONOUR: In this action there will be judgment for the plaintiff against the defendant in the sum of $833,218 after apportionment and after deduction of the Workers' Compensation Board payments. I give liberty to apply with respect to the arithmetical calculations set out in these reasons. I publish my reasons. I give liberty to the plaintiff and the Public Trustee to apply as to the working out of this order. I direct that the solicitor for the plaintiff provide the solicitor to the Public Trustee with a copy of these reasons with the order for judgment. I will hear submissions as to costs, gentlemen. /~'ID~ ?.J JUDGMENT 2 10 20 30 40 50 60 -- 6 of 40 -- r. T . 1 __ n 0 0 ---- ~-~--~~ ----- IN THE SUPREME COURT OF QUEENSLAND No. 3011 of 1989 Brisbane Before Justice White [Re Donnelly v. Patrick Operations Pty Limited] BETWEEN: KEVIN JOHN DONNELLY Plaintiff AND: PATRICK OPERATIONS PTY. LIMITED Defendant REASONS FOR JUDGMENT - WHITE J. Judgment delivered 29/09/93 CATCHWORDS: Counsel: Solicitors: Hearing Date(s): · Negligence Master Servant Action Contributory Negligence - Foreman Stevedore - Unloading cargo - Struck by tension bar - Frontal lobe dysfunction - Value of home care. J. J. Clifford Q.C. with Mr P.V. Ambrose for the plaintiff Mr. R. W. Trotter for the defendant Gabriel, Ruddy & Garrett for the plaintiff 0' Mara, Patterson & Perrier for the defendant. 13/9/93 to 16/9/93 -- 7 of 40 -- 0 0 0 0 IN THE SUPREME COURT OF QUEENSLAND No. 3011 of 1989 Brisbane Before Justice White [Re Donnelly v. Patrick Operations Pty Limited] BETWEEN: KEVIN JOHN DONNELLY Plaintiff AND: PATRICK OPERATIONS PTY. LIMITED Defendant REASONS FOR JUDGMENT - WHITE J. Judgment delivered 29/09/93 The plaintiff is a 59 year old married man who sustained serious head injuries when he was struck on the right side of his head by a chain in the course of his employment with the defendant on the 13 August 1987. Liability and quantum were in issue but during the trial liability was settled, subject to sanction, on the basis of the defendant accepting 90% responsibility for the plaintiff's injuries and the plaintiff 10%. Liability On 13 August 1987 the plaintiff was working as a foreman stevedore unloading cargo from the ship "Tourcoing" which was berthed at Maritime No. 3 Wharf, Brisbane. The ship, a Ro-Ro -- 8 of 40 -- 2 cargo ship, was originally loaded in Gottenberg and other European ports for Melbourne, Sydney, Brisbane and Asia. In Melbourne some cargo was discharged and replaced by Australian packed cargo containers stacked two high. When these containers were loaded the lower. edge of the bottom container impinged on the anchoring hook of a 40 foot bolst~r to which was secured heavy; machinery. The effect of this was to increase significantly the tension on the lashing chain associated with the anchoring hook. Q On the day in question a team of stevedores of whom the plaintiff was the foreman were attempting to unlash the bolster so that the machine could be unloaded. A tension bar inserted into.the lashing chain enabled the lashing chain to be tightened or relaxed as required (ex.S), but the increased tension due to the impingement of the Melbourne container prevented the stevedores frorrt moving the tension bar. Initially, when the problem was referred to the mate it was proposed to use a portable set of chain blocks which could take the tension off the lashing chain from the tension bar and this would have permitted it to be released manually. The chain blocks were not available and the cargo supervisor, Mr Warren Hansford, agreed with the proposal of the plaintiff that a hacksaw be used to cut the chain to release the lashing chain. This had apparently occurred on previous occasions. The plaintiff has no recollection of these events but did say in cross-examination that he would not have used a hacksaw to cut a chain under tension because of the risk involved .. There was no suggestion that Mr. Hansford's account set out in his statement (ex.11) was incorrect. The first half 0 0 () -- 9 of 40 -- 0 0 0 0 3 of the chain link was cut through and the stevedores and Mr. Hansford tried to get the link open, but failed to release the tension bar. A decision was taken to cut the other half of the link. The plaintiff positioned himself on the inbound side of the lashing which was said to be a safe position and when halfway through the link he left to summons the fork lift driVer, then returned and started cutting from the other side of the lashing chain. Two stevedores held down the tension bar and chain during this procedure. The link snapped suddenly throwing the two stevedores across the deck and the tension bar flew up and hit the plaintiff on the head. I accept that the plaintiff must bear some responsibility for his involvement in the very dangerous act of hand cutting a steel chain under tension and in positioning himself carelessly whilst undertaking the final cut, but compared to the negligence of the defendant in permitting that unsafe system to be utilised, it is not great. I sanction the agreement reached between the parties whereby the plaintiff bears 10% responsibility for the injury sustained by him and the defendant 90%. Quantum The plaintiff was admitted to the Royal Brisbane Hospital suffering from a compound depressed comminuted fracture of the right frontal bone. Under general anaesthetic the fracture was explored and cleaned. The plaintiff recovered consciousness but was confused and although hiS neurological condition improved, he demonstrated aggressive and anxious behaviour. He has no memory of events within 7 days prior to the accident and little memory of his hospitalisation. Psychiatric assessments performed -- 10 of 40 -- 4 in the hospital showed the plaintiff to have a short attention span, poor concentration and a reduced short term memory and the neuro-psychological assessment showed that he had marked frontal lobe dysfunction. He was extremely concrete and rigid in his thinking which interfered with his ability to perform the assessment tasks. He was discharged home from the hospital on 7 September 1987 into the care of his wife with regular follow up at the neurosurgical and neuropsychological outpatients' clinic under the care of Dr. Merry. The plaintiff consulted his general _ practitioner, Dr. B. O'Sullivan, with pain in his right side on the day that he was discharged and he was diagnosed as having two broken ribs. The plaintiff had also damaged his left shoulder when he fell after being hit by the bar and this continued to cause him a lot of pain. He returned to hospital for treatment for his ribs. The plaintiff started to have seizures and was diagnosed as suffering 0 0 from epilepsy due to his head injury. He suffered regularly from 0 blinding headaches. At the time- of his injury the two younger of his five children were living at home, Paula aged about 17 years was in grade 12 at school and Shaun aged about 15 years was in grade 10. Mrs. Donnelly explained what it was like living with the plaintiff after his discharge from hospital. She said that a major problem was that the family did not understand the effect that his head injuries had had upon his personality. She said that he was short tempered and verbally and physically violent to his family. After such an encounter the son, in due course, left home to live with another sibling in Cairns. Paula Freeman 0 -- 11 of 40 -- 0 0 0 0 5 (formerly Donnelly) described a very different family life from that which was enjoyed prior to her father's injury. She described her father post-accident as suspicious - going through each member of family's mail, intolerant, impatient, hitting Shaun and her mother and pushing and shoving her. She said that she was afraid of her father. She left home in 1990 unable to tolerate any further her father's conduct. Dr. O'Sullivan, who had been the family doctor for some three years prior to the plaintiff sustaining his injuries, was concerned about the plaintiff's complaints of severe headaches, which were being treated at the Royal Brisbane Hospital, the control of his epilepsy, his excessive consumption of· alcohol and its effect upon him and his family and the violence of his temper. Blood chemistry revealed that the plaintiff was not taking his medication although he asserted that he was. Mrs. Donnelly said that she found pills thrown outside and hidden on top of the wardrobes in the house. At the end of 1988 the plaintiff was referred to Dr. Levien for psychiatric treatment. According to Mrs. Donnelly this very distressing early period lasted for about 18 months to 2 years and gradually improved as the plaintiff's drug regime was stabilised, his tablet taking was closely monitored and the family obtained the assistance of a· social worker and psychiatric counselling. The plaintiff has had a number of operative procedures since sustaining his head injury unconnected with that injury for the removal of gall stones and sundry skin cancers .. As a consequence of his head injury and his medication, his post anaesthesia recovery has been abnormal he demonstrating considerable violence -- 12 of 40 -- 6 and distEess which appears to have lasted for some days. The plaintiff's recorded epileptic seizures indicate only one serious episode and a number of lesser occurrences which occur quite regularly. His epilepsy is reasonably well controlled by medication. The plaintiff has not worked since his injury and there is no suggestion that he has any capacity to engage in employment of any kind. He lives in the family home with his wife who goes out to work as a home helper on Mondays, Wednesdays and Fridays from 10 a.m. to 3.15 p~m. The plaintiff's week is as follows: On Monday he attends the Senior Citizens' Club at Toowong and play~ bowls returning home about 1.30 p.m; on Tuesday he goes to the Club at Toowong where concerts are arranged; on Wednesday he stays at home, perhaps doing some mowing; on Thursday he goes to bowls, after which he is collected from the train by his wife and together they go shopping at about 4 o'clock. After shopping the plaintiff and his wife have a. drink at the RSL club at Corinda and play the poker machines for an hour or so; on Friday the plaintiff stays at home and may telephone friends. The plaintiff is able to catch a local bus and train to his activities during the week by himself and return home. Each second weekend the plaintiff and his wife go to Caloundra where they have a caravan and a fishing dinghy. He is able to cook a simple meal of sausages and boiled eggs but very little else. He cannot safely-go out alone in the boat and is an erratic skipper but becomes agitated if someone_else is in charge. He takes 26 different tablets. per day to control his frontal lobe dysfunction, epilepsy, headaches and depression. Occasionally 0 0 0 0 -- 13 of 40 -- () () 7 the severity of his headaches requires relief by injection. He suffers from double vision in his right eye and is worried by it. His sexual functioning has lessened since his injuries to the extent that he is no longer able to engage in sexual intercourse with his wife. This may be due in part to his medication. He has an appointment to see a specialist for diagnosis and possible treatment shortly. The plaintiff feels greatly diminished as a man by this occurrence. His short term memory and concentration deficits are such that he needs to be "programmed" for his day by lists, diary· notes and regular routine. He suffers from what Dr. R. James, psychiatrist, termed "night terrors". He is awakened by the slightest noise and is greatly confused, distressed and som.etimes very frightened until reassured as to the cause of the noise. His wife occasionally stayed overnight in the past with a Mrs. Fraser whom she looked after, but after a particularly () frightening occurrence for the plaintiff a few months ago, she () no longer leaves him alone at night. Mrs. Donnelly was much admired by Dr. 0' Sullivan, the family doctor, and Dr. Levien, the psychiatrist, for her calm, commonsense approach to handling the plaintiff. I found her to be a reliable, forthright witness who, if anything, played down the burden of her husband's injury upon him, herself and their family. In order the evaluate the consequences of the plaintiff's injuries upon himself and his lifestyle, it is necessary to consider in some detail the life which he led up to his injury and his personality. The plaintiff was educated at Marist -- 14 of 40 -- 8 Brothers' School at Ashgrove to age 15 when he left school and worked for a professional fisherman at Caloundra for a percentage of the catch in wages. He worked in factories for a short time and then returned to fishing. He then joined the Queensland Department of Harbours and Marine as a junior boatman and remained with the department for some 18 years attaining the position of regional patrol officer and fisheries' inspector. He did his National Service with the Royal Australian Navy. He had had, at various times, the area from Townsville to Thursday Island to Darwin under his control and subsequently the area from Maryborough to Rockhampton. He resigned over a matter of principle and set up business with his wife owning a landing barge transporting goods mainly from Maryborough to Fraser Island carrying fuel and cars. He had the exclusive contract with the operators of the Orchid Beach Resort. Sir Reginald Barnewall, the owner at the time, gave evidence on behalf of the plaintiff and spoke highly of his reliability and enjoyable personality and was "astounded" at the change in him when he saw the plaintiff about 5.months after the accident at his home at Mt. Tamborine. He said his appearance had changed, he was staggery, his speech was slurred and he lacked memory. In 1972 the plaintiff took up a contract to ship prawns in the Gulf for three years. He had a master on his barge whilst he took up a position as operations' manager of two mother ships with seven trawlers working out of Cooktown for Thomas Nationwide Transport. He had. some problems with the manager of his barge and as a consequence sold it to Papua New Guinea interests. 0 0 0 0 -- 15 of 40 -- -------- 9 The plaintiff then went into a partnership venture purchasing the ex-naval vessel H.M.A.S. "Paluma" to operate as a coastal transport in North Queensland waters with himself as first mate. The business venture failed and, as a consequence, the family lost all of its assets including the family home and some land at Mooloolaba. Thereafter the plaintiff took a variety of jobs, skippering big game fishing vessels off Cairns and with barge companies. At the end of 1980 the plaintiff moved to <=) Brisbane as Master of Sir Leslie Thiess' boats. The plaintiff moved to the waterfront in 1982 as a foreman 0 stevedore. A particular episode of professional and personal pleasure for him was his captaining of the M. V. "Krait" on its last voyage up the east coast of Australia prior to becoming an exhibit in the Canberra War Museum and his association with "Z" Force Special Commando Unit. The plaintiff captained the "Krait" when it escorted the Queen in HMS "Britannia" up the Brisbane 0 River. Memorabilia and Certificates of Competence from his colourful past make up ex.3. His daughter described their family life before her father's CJ injury as normal with quite a lot of fun as she, her brother Shaun and their parents went fishing together almost every weekend and went out as a family to exhibitions a·nd to boat shows. She said that her father was strict about her social life but that they could always negotiate amicably enough. It had been suggested by the defence that the plaintiff was a quick tempered man who resolved problems with his hands prior to sustaining his injury, but his daughter was firm that he was never violent to any of his children and that her parents -- 16 of 40 -- 1 0 appeared to her to be very happy. honest witness and I accept I found Mrs. Freeman to be an her evidence. Sir Reginald Barnewell, after knowing the plaintiff and his wife over many years, described the plaintiff as mild and pleasant, never violent and their household as "normal". He, too, I found an acceptable witness. There was reference in one of Dr. Levien's reports (ex.2 p.40) that the plaintiff had " ... pre-morbidly been a -somewhat volatile·· man given to settling arguments with his fists ... involved in more than thirty major fights ... ". The plaintiff explained that he had done boxing as a young man in his early twenties but had not done so since then. Mrs. Donnelly described him as quick tempered at times prior to his injuries, but kind and considerate and who would become bad tempered if he drank too much. She said that he was never violent with her or the children and I accept her evidence. It seems that he became more settled when he started working in Brisbane. Mrs. Donnelly described her husband as "a man's man" who was active and energetic and enjoyed the sea and being involved with boats. She described herself as getting on well with him and enjoying his companionship. The job as a stevedore paid very well and Mrs. Donnelly said that they had more money .. than they had ever had before during this period. There is ample opinion evidence set out in the reports contained in ex. 2 of the plaintiff's mental and pe.rsonali ty deficits as a consequence of his injury and it is unnecessary to elaborate on those findings as they are not disputed. Neither 0 0 0 -- 17 of 40 -- 0 0 0 () 11 was it in dispute that the plaintiff has insight into his present condition and its consequences for himself and. his family.· His pride in his past achievements was apparent when he gave evidence, but the social difficulties of confusion and slowness of speech to which the reports refer was also apparent. He had taken extra medication to assist him in giving his evidence which may have contributed to this effect. He was noted on a number of occasions to be asleep, or apparently so, when sitting in the body of the court. The plaintiff knows that when he acts violently towards people, particularly his family, he cannot stop himself and is distressed and remorseful afterwards. He clearly enjoys company as witnessed by his regular attendances at the Senior Citizens' and RSL Clubs, but his lost short term memory causes him to "repeat himself" and to be criticised for this by his companions and he becomes angry if his good intentions are misunderstood. On the other hand both Dr. .Levien and Dr. 0' Sullivan mentioned that the plaintiff does not have full understanding of the need for his condition to be strictly controlled by his medication and the adverse consequences that would flow from failure to adhere to this regime. I thought that the plaintiff did finally realise the need to co-operate in taking his medication and why when he gave evidence, but with his severe short term memory deficits he could easily lapse and certainly cannot be relied upon to organise his own medication. It was suggested by Dr. 0' Sullivan in cross-examination that with the plaintiff's history of hypertension pre-dating his head injury, with the quantity of drugs that he was taking together -- 18 of 40 -- 12 with his epilepsy, brain damage and general unfitness he would not expect the plaintiff to live more than 8 to 10 years. The life,tables indicate a further 18.89 years for a man presently aged 59 years. As a consequence of this evidence the plaintiff was examined by Dr. David Colquhoun, cardiologist. He had the benefit of reading the medical reports in evidence, examining and te$ting the plaintiff and spoke with the plaintiff, Mrs. Donnelly and Dr. O'Sullivan. Dr. Colquhoun concluded, taking into account the plaintiff's history and his medication, that he is at low risk of developing either coronary heart disease or cerebrovascular disease. His hypertension was described as mild and easily controlled and since he is a life long non-smoker and on dilantinj Dr. Colquhoun suggested that his prognosis is significantly better than the average 59 year old with regard to the risk of developing complications of vascular disease. Dr. Colquhoun went ort to comment that if the plaintiff's epilepsy is controlled, the likelihood of death from epileptic attack is minimal and he would not expect a great reduction in the plaintiff's life expectancy compared with the age-match control. Although there ·was some suggestion that the plaintiff's father had died from heart disease, of which Dr. Colquhoun was not informed, there were no features of plaintiff's condition which would cause him to reach a different conclusion as to his life prognosis from a cardiovascular prospective when asked to assume that fact. I conclude that no evidence was aqvanced for suggesting tbat the plaintiff would not live his statistically indicated future span. 0 -- 19 of 40 -- ---,-~--------- 13 There can be n6 doubt that the plaintiff has suffered a serious interference in his capacity to enjoy his life in its work and recreati~nal aspects as ~ consequence of his injuries and he is a person who feels this diminution greatly, including its effect on his wife. I am of the view that an amount of $75,000 for the plaintiff's pain and suffering and loss of the amenities of life for the past and into the future is appropriate. 0 Interest 0 0 0 The plaintiff is entitled to interest on $30,000 of that amount which I attribute to his pre-trial pain and suffering. The plaintiff claims interest for two years only until the payment of a lump sum disability allowance from the ·Workers' Compensation Board at the end of 1989. Interest is allowed for two years at 2% per annum amounting to $1,200. The greatest area of disagreement between the plaintif~ and the defendant is the question of compensation for Mrs. Donnelly' s past care of the plaintiff and the appropriate approach to his future care. As I have mentioned, during the first 18 months or so following the injury, the plaintiff was difficult to manage, being dependant upon his wife for his daily care· - he needed to be told to bath, he neglected to shave, did not take his medication, was angry and violent, hitting his Wife and children and indeed, attempted to strange Mrs. Donnelly on one occasion and was only restrained by the intervention of a neighbour. As -- 20 of 40 -- 14 I have said above, Mrs. Donnelly tended in evidence not to dwell too much upon this period but said that he "was a worry". Perhaps a better picture is gained from reading the contemporaneous medical reports where complaints about the plaintiff's verbal and physical violence and obsessive character are recorded, together with his depression and inability to concentrate. Dr. O'Sullivan described him as unco-operative, garrulous with · marked mood swings compared to a pleasant, co-operative person previously. He noted that by the end of 1988 the plaintiff's temper was so violent that he started him on lithium carbonate. The plaintiff was unable to manage the relatively modest intake of beer that he indulged in and became aggressive and violent. On 19 March 1990 Dr. O'Sullivan was very pessimistic about the plaintiff's future, describing him as needing constant ongoing care and supervision. It was due to his management by Mrs. Donnelly and her strict supervision of his medication once its regime was established, that some degree of calm and order entered into the plaintiff's life. Although Mrs. Donnelly took a part time job for a few days per week to augment the family income and the plaintiff went to his clubs during this period, she gave him care throughout the night when he needed. it as well as care for those parts_ of the day when they were both home. She described him as tak~ng 75% of her time during the period to approximately March 1989. With the establishment of a s_table medication regime and as Mrs. Donnelly learnt to deal more effectively with the plaintiff's moods, he took less of her time. She estimated it as about 50% of her day which has now settled to about 40%. She 0 0 0 0 -- 21 of 40 -- () 0 0 () 15 herself suffers from high blood pressure and depression as a consequence of dealing with the plaintiff. Mrs. Donnelly prepares all the meals except for breakfast which the plaintiff is able to get for himself, being cereal. She did the cooking prior to his injuries but he was able to get a meal then if necessary. He cannot be relied upon to shop without a list and will neglect food necessary for a healthy diet. Mrs. Donnelly takes care of all the family finances such as insurance and rates. She does not consider that her husband is capable of dealing with these matters and as an example said that he muddled up receipts and bills. She gives him about $40 per week out of the pension cheque which is paid into her account, which he spends as he pleases. Of great importance is her arrangement of his medication in a seven day box. He is unabl~ to do it for himself reliably. He has improved in his attitude to taking his medication but it needs constant checking. She needs to be available at night to calm him down and to talk him out of his terrors. Neither Dr. O'Sullivan who supervises his medication mix, nor Dr. James thought that increasing the plaintiff's sleeping tablets would be either ethically acceptable or effective in causing him to sleep through the night undisturbed. The plaintiff can do a little domestic work such as washing up and drying the dishes and bringing in the washing under supervision. Mrs. Donnelly thought that if she concentrated her services for the plaintiff excluding night time that that would take one to two hours per day: Dr. O'Sullivan admired Mrs. Donnell~'s efficiency and capacity to handle the plaintiff and considered that about three hours per day would be -- 22 of 40 -- 16 necessary to look after the plaintiff's n~eds as she does. Dr. Levien considered that a few hours per day by an outside carer would be quite inadequate for the plaintiff's needs. He said that the plaintiff would not enjoy the company of such a person as he enjoyed that of his wife and that the person would not know and understand his condition both medically and psychiatrically so as to act as a monitor to alert his physicians to any deterioration in his condition. In Dr. Levien' s opinion the plaintiff needs someone to settle him down and humour him and help him make wise judgments. Dr. Levien considered that there was no suitable institution available for the plaintiff's care given his level of disability, although it must be said that he was directing his attention more to nursing home accommodation. Dr. James considered that a person in the position of the plaintiff, particularly suffering from night terrors, if unable to be settled with medication, would need to be accommodated in a haste~ type situation in the event.that his wife was no longer available to provide the care for him which.she does. a retirement village in the Brisbane suburb of He visited Durack to ascertain its suitability for the plaintiff's needs, having been familiar with it in relation to other patients. He thought it amongst the best of its kind. The brochure is ex. 23 and sets out the services offered and the costs. There is a variety of accommodation available from freestanding houses with up to three bedrooms to serviced apartments offering regular nursing care. Patients with mental impairment are placed in serviced apartments in. the main area and there is a nurse on 24 hour call. All residents at the retirement village have a Vi tal Call Pendant 0 0 0 0 -- 23 of 40 -- 0 0 17 for 24 hour emergency assistance. Medic~tion can be supervised and all meals, cleaning and laundry services. can be provided. Full board costs approximately $130 per week and medication supervision is $2.10 per dispensing. Dr. James considered that the plaintiff would cope fairly well in such a situation if he did not have the support of his wife. The village provides a range of sporting and social activities including indoor and outdoor bowls and o.:tganised social occasions, concerts and healthy lifestyle programmes. Dr. James considered that whilst the plaintiff was capable of a degree of independent activity he was not capable of living independently without his wife. He accepted that the plaintiff would have difficulty in adapting to a new lifestyle but thought that it could be managed within 6 to 12 months. The exercise is one of costing the plaintiff's needs for the future which have arisen as a consequence of the defendant's 0 wrong-doing, Van Gervan v. Fenton (1992) 175 C.L.R 327 at p. 335. 0 Whatever Mrs. Donnelly may have done for the plaintiff in the past before his injury by way of the domestic arrangements operating in the family, it is his needs since the injury, now and for the future which must be considered. Although she said that she has been on the verge of packing-up and leaving, the reality is that Mrs. Donnelly will continue to care for her husband as long as she is able. He wants her to have a new house they may move and he will have to make the necessary adjustments to that changed situation. They may, in fact, find the retirement village option an attractive one, buying as they can a villa or larger apartment, particularly as there would then -- 24 of 40 -- 18 be in place a regime with which the plaintiff would be familiar, should anything prevent Mrs. Donnelly from continuing to care for her husband. The plaintiff clearly enjoys the socialising associated with his visits to his clubs and the structured programme offered in a retirement village of the kind described may suit his needs. On behalf of the plaintiff it was proposed that his future care be costed on the basis of a carer coming into the home for some three hours per day and the provision of the person to sleep overnight. This has been costed at $45 per day using as a guide the Domicare commercial rates of $12.50 per hour. I am not satisfied that such a proposal adequately reflects the plaintiff's needs. The medical evidence both of those who have treated him for years and those who have treated him only for medico legal purposes is that he cannot live alone and if in a home situation, requires a carer "tuned into" his needs. Someone 0 0 would have to supervise the carer and, whilst I accept that the 0 commercial provider of the home assistance does that in most cases, the plaintiff's needs require a very special person which w-ould not easily be met. The reality is that his welfare would best be protected in some structured community such as that suggested by Dr. James. In. Van Gervan v. Fenton, supra, Mason CJ, Toohey anq McHugh JJ held at p. 331 that "as a general rule, the market cost or value of those services [provided·gratuitously] is the fair and reasonable value of those services''. Their Honours proposed that in some cases the market cost may be too high, e.g., in the case of a very remote location, and accordingly would need to be 0 -- 25 of 40 -- () 0 19 discounted to what was regarded as reasonable in the circumstances. As their Honours observed, the only satisfactory approach to the future is to strike a reasonable market value for the services required by the needs of a plaintiff since the gratuitous carer may no longer, for a variety of reasons from death and illness to disinclination, continue to render those services. It is plain in this case that mutual comfort and support which is at the heart of the marital relationship and which, if continued after a compensible injury, would not call to be described on the uninjured spouse's part as services, is not present here. Every moment of Mrs. Donnelly's time with her husband since his injury has been spent with the consciousness that he needs her to humour him out of irrational conduct, to calm his fears and to programme his day and that will continue into the future. She gets very little in return. That is not () part of the mutual support of the relationship in an ordina+y· 0 marriage. (i) Future Care As I have said; I prefer to value the plaintiff's needs for the future by reference to the cost of his placement in an appropriate institution. The plaintiff's case was never put on the basis that he needed 24 hour care 11 as such'', but was proposed as the commercial equivalent of what he is ·getting from his wife (transcript p. 158 1. 23). The defendant submitted that the hostel option was appropriate for the past and the future and submitted that adequate compensation for the past would be $4,000 per annum and that $80 per week would be appropriate for the -- 26 of 40 -- 20 future. No attempt was made to identify this figure with the evidence being neither the weekly cost of an institution nor the commercial figure for a carer for two hours (the minimum) per day. The institution mentioned by Dr. James requires a capital investment of around $100,000 for an apartment which is leased for 99 years. Most of that capital amount is recovered if and when the resident leaves. I am concerned only with the recurring weekly cost of care and use the price list of that institution as a guide. The provision of cleaning, linen, maintenance, meals and emergency nursing services in a one bedroom serviced apartment is approximately $130 per week. The meals component is approximately $39 per week and is optional. The plaintiff would need to provide for his meals irrespective of injury, although I concede that not the whole of cost of $39 will relate to food, but in any event it is a modest sum. Miss Karen 0 0 Horwood, a senior project officer with the Commonwealth () Department of Health, Housing and Community Services provided the court .with evidence as to the daily subsidy paid by the Commonwealth pursuant to the Aged or Disabled Persons Care Act 1954 for hostel accommodation for various levels of persons and care. At the present time such subsidies are not recovered from third party claimants although nursing home residents are required to reimburse the Commonwealth in that circumstance .. The effect of ex. 24 is to suggest that third parties in hostel accommodation may well be required to reimburse the Commonwealth in the immediate future. The most prudent course would be to omit the provision of the subsidy in the calculations. The 0 -- 27 of 40 -- 0 0 () 0 21 plaintiff, it was agreed by counsel, would fall within "the non- financially disadvantaged personal care intermediate category" which presently pays a subsidy of $26 per day, which amounts to $182 per week. That should be added to the weekly cost of $91 ($130 - $39 for meals) making a weekly amount of $273. To that should be added an amount for medication supervision which I will assess at $5 per week, giving a figure of $278. The base fee at a Commonwealth subsidised hostel is 85% of the standard pension plus rental assistance but it varies upwards from hostel to hostel. · The plaintiff is entitled to a reasonable level of accommodation and care and the only detailed evidence was provided by Dr. James who was called on behalf of the defendant. A period of 18 years using the 5% tables gives an amount of $173,750 for future care. In monetary terms this does not differ greatly from the plaintiff's proposal of daily assistance at home amounting to $196,875. I will allow $173,750 for the plaintiff's future care. (ii) Past Griffith v. Kerkemeyer Care I accept the calculations as to the value of past care provided by Mrs. Donnelly proposed by the plaintiff and forming part of the submissions (which I have placed with the papers). The method has been to take the Domicare daily rate actually paid to the carer (i.e., excluding administration costs) for the relevant period and calculate 75% from the date of injury until March 1989 which amounts to $23,350 and 45% from April 1989 to present amounting to $59,258. The total amount for past·care is $84,608 and that is allowed. -- 28 of 40 -- 22 Interest The plaintiff has sought interest at 6% per annum over the whole period. No submissions were made by the defendant opposing this and indeed, interest was specifically allowed for in the defendant's written submissions at that rate. I considered this matter earlier this year in Densley v. The Nominal Defendant, unreported decision of 15 June 1993 (No. 4839 of 1986) at p. 30 of the judgment, but am not satisfied that I was correct in the conclusion which I reached on further O reflection. The Full Court in Veselinovic v. Thorley [1988] 1 Qd.R.191 allowed interest on this head of damages. Connolly J, at p. 195, having identified wages foregone by the spousal carer as the appropriate basis for calculating compensation for the value of the services, considered that since the husband was ''in truth ... out-of-pocket "there can no longer be any objection in principle to an award of interest". Thomas J took a somewhat different approach to the question of interest stating at p. 202: "It was submitted that interest should not be allowed at all on such damages as they do not represent out- of-pocket expenses or actual loss. That however does not represent the only criterion justifying an allowance of interest on pre-trial damage. I. consider that a plaintiff's need for care is a 'detrimental consequence' of the kind which can attract interest if suffered before trial (Cullen v. Trappell (1979) 146 C.L.R. 1, 20-21) ." Derrington J considered at p. 208 that if the services had been paid for, that payment would undoubtedly have attracted interest. He went on: "It is difficult then to see why interest should not be payable when the need was met by the gratuitous services of another but in respect of which the plaintiff is entitled to damages. One purpose in awarding interest on damages to ensure that the plaintiff 'ought in justice to be placed in a position 0 0 0 -- 29 of 40 -- ! ~. J 0 23 in which he would have been had the amount of the verdict been paid to him at the date of the commencement of the action'. Ruby v. Marsh (175) 132 C.L.R. 642 per Barwick C.J. at 652. 11 The approach of the Full Court to the evaluation of gratuitous care provided to a plaintiff based, as it was, on a calculation of income foregone by the carer, was expressly disapproved by the High Court in Van Gervan v. Fenton at pp. 333 et seq. The Court did not address the question of interest on damages for past gratuitous care but in Cullen v. Trappell (1980) 146 C.L.R 1, (not disapproved on this point in Van Gervan) Gibbs J (as his Honour then was) with whom Stephen and Mason JJ agreed, 0 after referring to Fire and All Risks Insurance Co Ltd v. 0 () Callinan (1978) 140 C.L.R 427, where the Court said: 11 The claim for general damages contained elements of loss of earning capacity, pain and suffering and loss of amenities. Each of these represented detrimental consequences, some of which had already been borne by the plaintiff before the trial and others of which he would bear in the future. To allow interest on the award of general damages without discernible regard for this temporal distinction was wrong for the reasons stated by the Full Court. 11 Went on to state: 11 This decision supports the view that, in general, the distinction between detrimental consequences already suffered and those to be suffered in the future should be regarded by a Judge exercising his discretion to allow interest not only on damages awarded-in respect of economic loss, but also in respect of damages awarded for non-economic. 11 In Van Gervan v. Fenton the Court characterised the award of damages for past gratuitous care as general damages, at p. 337. Section 72(1) of the Common Law Practice Act 1972 authorises the ordering of interest at the discretion of the court on the sum of money recovered at such rate and over which period.between the date when the cause of action arose and the date of the -- 30 of 40 -- 24 judgment as the Court thinks fit. In M B P (SA) Pty Ltd v Gogic (1991) 65 ALJR 203 the High Court held at p. 205: "The function of an award of interest is to compensate a plaintiff for the loss or detriment which he or she has suffered by being kept out of his or her money during the relevant period .... Damages for pre-trial non-economic loss, however, are assessed in accordance with the value of money as at the time of the award. In no way is any loss which a plaintiff incurs by reason of being deprived of his or her damages for pre-trial non-economic loss brought about by inflationary factors. In those circumstances, to award interest on damages for non-economic loss during the pre-trial period by reference to commercial rates is to compensate the plaintiff for a 'loss' which he or she has not sustained. No doubt whatever interest rate is used to compensate a plaintiff, it can be at best only a rough guide as to the value of the plaintiff's loss during the period when he or she was deprived of the use of his or her money. Nevertheless, to award interest at commercial rates for periods of pre-trial pain and suffering appears to be a breach of the principle that a plaintiff in a personal injuries action should not receive a sum for general damages greater than the ·'sum which, so far as mdney can do so, will put him the same position as he would have been in if ... the tort had not been committed': Butler v. Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 at 191. The proposition·. that, during periods of inflation, interest on pre-trial non-economic loss ought to be calculated at commercial rates, therefore, is erroneous in principle. On this point Cullen v. Trappell should no longer be regarded as authoritative." The Court continued at p. 206: "A plaintiff is awarded interest because he or she has been deprived of the use of his or her money, not because he or she has foregone investment opportunities." In tnat case the High Court accepted that the practice in South Australia over the previous seven years of awarding 4% per annum on general damages as "fair and reasonable compensation" for a "plaintiff in that State".· o. 0 0 0 -- 31 of 40 -- 25 In Camm v. Salter (1992) 2 Qd.R.342, Thomas J set out the accepted approach in Queensland to the method of calculating interest on past loss which was and is to halve the interest over the whole period to take account of the fact that the plaintiff suffers his or her loss day by day from the date of the injury to trial. In accordance with that practice, his Honour held, at pp. 343-4, that, accepting that 4% per annum referred to in Gogic was the appropriate rate for Queensland, the interest rate ought Q to be calculated at 2% per annum over the whole period for general damages. Ryan and MacKenzie JJ did not deal with this 0 point in their reasons for judgment. This approach has since become the practice in the Supreme Court in this State. Accordingly, since Van Gervan characterised damages awarded to a plaintiff for gratuitous care as general damages, if interest is to be awarded the interest rate ought to be at 2% over the whole period. 0 However, since the plaintiff has actually received the / 0 services the subject of the Griffith v. Kerkemeyer award, and, since there is no obligation to make any payment to the proyider of those services, it is difficult to see how a plaintiff can be said to have suffered a detriment such as to attract an award of interest. It seems to me then that interest ought not to be awarded in relation to past Griffith v. Kerkemeyer claims~ The New South Wales Court of Appeal has declined to do so in Settree v. Roberts [1982] 1 NSWLR 649, on the basis that the plaintiff has suffered no detriment. That judgment stills seems to stand. However, since the point was not argued before me, and the defendant by its submissions accepted the plaintiff's right to -- 32 of 40 -- 26 interest and at 6% per annum, it would not be appropriate in this case to depart from what is the accepted practice in this State. Accordingly, interest is allowed on the sum representing past gratuitous care at 6% per annum over six and one-twelfth years and amounts to $30,882. Past Loss of Wages It was the plaintiff's case that he would remain in employment as. a foreman stevedore for the entire pre-trial period. The evidence was that in the late 1980s the waterfront Q was. restructured and as a consequence redundancy packages were offered to workers in August 1991 and again in August 1992. These were taken by a number of employees . There was no evidence as to the value of these packages or as to the plaintiff's superannuation entitlements although ex.12 may well be a reference to that entitlement and a general figure of $100,000 as a redundancy payment was mentioned. The plaintiff says that he would have remained in employment on the waterfront and would still like to return. Mrs. Donnelly said that it was unlikely that her husband would have accepted a redundancy package. The family was seeking to recoup its financial position after the partnership losses and two children were still at school when he was injured. The plaintiff was being paid better money than he had ever received previously and he had not been working with the defendant sufficiently long to have accumulated an .attractive superannuation pay out. Finally, the .plaintiff· enjoyed his work and was, according to Mr. Hansford, good at it. In view of the unfortunate financial consequences of the plaintiff's venture into private enterprise 0 0 0 -- 33 of 40 -- 0 0 0 0 27 it seems most unlikely that he would have moved in that direction again. Further, he had saved little from his new income, Mrs. Donnelly suggesting that they were spending much more with the bigger money. I am persuaded that the plaintiff would have remained with the defendant up until the date of trial. Mr. Craig Hennessy, the personnel officer for the defendant, prepared schedules relating to a grade 5 foreman (the plaintiff's grading) which became exs. 16 to 19. I accept Mr. Hansford's evidence that it is unlikely that the plaintiff would have moved to a grade 6 foreman and the plaintiff's submissions essentially accept that position. Mr. V. R. Boudette carried out the accounting exercise by reference to the above figures to establish the plaintiff's past loss of wages. His approach was not the subject of cross- examination and is set out in ex. 20 and his final calculations are set out in the handwritten document, ex. 20A. The amount calculated by him is $256,461 to 13 September 1993. To that should be added two further weeks to the judgment date of $926 being the net average weekly wage of a grade 5 foreman. The total amount then is $258,313. I accept those calculations. Mr. R. Trotter for the defendant submitted that that figure ought to be discounted to take account of the usual contingencies including that the plaintiff might have accepted redundancy and/or gone into private enterprise with its attendant risks. I have found that those occurrences were unlikely. Some discounting in a relatively minor fashion is necessary although, as Mr. Clifford Q.C. for the plaintiff has pointed out, the -- 34 of 40 -- . I 28 figure claimed contains no long service loading. plaintiff $240,000 for past loss of wages. Interest I award the Interest is claimed at 6% per annum on the whole amount less $32, 37 4. 25 relating to Workers' Compensation Board payments. Ex. 12 shows that the plaintiff received $62,060.29 from the· Stevedore and Employees' Retirement Fund on 3 January 1990. It is described as a Total and Permanent Disablement Benefit and is apparently calculated by reference to weekly payments. Neither the plaintiff nor the defendant submitted that it ought to be brought into account in the calculation of interest so I shall not do so. The interest is thus $75,783.40 which I will allow. Loss of Future Earning Capacity The net average weekly wage of a grade 5 foreman stevedore at the date of trial was $926. It was the plaintiff's case that he would work in that capacity to age 65 years. The plaintiff's position as a foreman stevedore prior to the reorganisation of the waterfront was said to be by Mr. Hansford largely supervisory, but thereafter it was "a hands on" position with multi-skills which the plaintiff could have filled. In any event, Mr. Hansford described the plaintiff as a man who liked to get involved in the work and push it along so it seems that the change would not have unduly affected the plaintiff's approach to his work. Mr. Hansford could not see any aspects of the plaintiff's work which would have caused him to retire before 65 years, but he conceded that there are no foremen over the age of 60 working for the defendant at the present time, and few between 50 and 60. 0 0 0 0 -- 35 of 40 -- 0 0 0 0 29 The only large debt which the plaintiff had at the date of his injury was $16,000 owing on his home. There was no suggestion that the two.children still at school in grades 10 and 12 at the date of his accident would have gone on to tertiary education. Accordingly, I think it unlikely that the plaintiff would have stayed on with the defendant beyond the age of 62 years or so. Ex. 19 shows that the older grade 5 and 6 foremen had elected to take the redundancy package. Calculated at $926 net for three years using the 5% tables gives an amount of $135,844 which I will round off at $136,000. It is possible that the plaintiff would have obtained some part time work involving boats for the next couple of years. Accordingly, it seems inappropriate to discount the loss of future earning capacity further than I have done by reducing the period in employment with the defendant and bearing in mind the short period under consideration. The amount is therefore allowed in the sum of $136,000. Special Damages Special damages have been agreed between the plaintiff and the defendant in the sum of $11,783.87. Interest The parties have agreed that interest should be awarded on $1,193 of those special damages. It is allowed at 6% per annum for six and one-twelfth years amounting to $435.45. Recurring Costs These costs are not disputed and relate to the plaintiff's medication and need for regular review and treatment by his general practitioner and psychiatrist about which evidence was -- 36 of 40 -- 30 given by Dr. Levien and Dr. O'Sullivan. The detail is set out in ex. 2 at p. 130 and as a schedule to the submissions of the plaintiff. The weekly sum which is derived from those figures is $182.77 per week. Over 18 years on the 5% tables that amounts to $114,218.75 which I allow. Fox v. Wood The Fox v. Wood component retained by the Workers' Compensation Board is agreed at $5,036.16 and this is allowed. Summary of Damages In conclusion the plaintiff's damages under the respective heads are as follows: Pain and Suffering and Loss of the Amenities of Life Past and for the Future Interest on $30,000 at 2% per annum for six and one-twelfth years Past Gratuitous Care Interest- thereon Future Care Past.Loss of Wages Interest thereon at 6% per annum for six and one-twelfth years Loss of Future Earning Capacity Special Damages Interest on $1,193 at 6% per annum for six and one-twelfth years Recurring Medical Needs Fox v. Wood $75,000.00 $1,200.00 $84,608.00 $30,882.00 $173,750.00 $240,000.00 $75,783.40 $136,000.00 $11,783.87 $435.45 $114,218.75 $5,036.16 $948,697.63 0 0 0 0 -- 37 of 40 -- 0 0 .. lfl . fi' 31 Public Trustee Charges The plaintiff's award of damages will be managed by the Public Trustee. Both Doctors James and Levien, as well as Mr. Michael Weston, psychologist, were of the view that the consequences of the plaintiff's head injuries made him an inappropriate person to look after a large sum of money. That was not disputed by the defendant. It is well recognised that where the plaintiff's injuries have made necessary the administration of the fund obtained by judgment it is proper to charge the defendant with the cost of that administration, see Mullins v. Duck [1988] 2 Qd.R.674. It was submitted by Mr. Clifford that the approach of McPherson J. '(as his Honour then was) in Morris v. Hunter, unreported decision of 21 September 1988 (No. 2182 of 1985) to the Public Trustee charge where there is apportionment for contributory negligence should not be followed. His Honour there ~ concluded that the costs payable on account of administration by ~. the Public Trustee represented ••a distinct and additional i tern of damages over and above the amount already claimed and awarded to compensate the plaintiff's loss••. It was submitted by counsel for the plaintiff in Morris v. Hunter that to deduct the amount of the contribution from the administration cost was, in effect, to double the reduction becaus~ the charge is calculated on a capital amount and the income produced by it which has already been reduced on account of contributory negligence. That is, the amount of the Public Trustee charges is already reduced because it is calculated by reference to the reduced amount. Since the Public Trustee -- 38 of 40 -- 32 '" charges are a head of damage there is no reason that they cannot be calculated on the whole of the sum prior to reduction for contributory negligence, and added onto that judgment sum and then the whole reduced to reflect the contributory negligence. I propose to follow that course. The Public Trustee's charges are set out in Regulation 10 of the Public Trustee Regulations (ex.25). A once only commission is charged by the Public Trustee on receipt of the funds from $500,000- $750,000 of 1.5%. On funds received in excess of $750,000 a 1% fee is charged. Pursuant to Regulation 10(e) a charge on the income of the fund is made annually by the Public Trustee. The charge is 6% per annum for fitst $50,000 income and 5% per annum over $50,000. ·The unapportioned amount of the plaintiff's damages is $94~,698. Of that amount $115,490 is likely to be paid out to Mrs. Donnelly for her satisfaction of the plaintiff's needs to date for the supply of gratuitous care. It is likely that there will also be an amount paid for the plaintiff's solicitor and client costs. That will leave very approximately $780,000 for investment. The once only charge paid on receipt of the funds should be deducted first from the capital sum for investment. That leaves an amount of approximately $772,200 for investment. Interest paid on moneys invested in the common fund pursuant to the Public Trustee Amendment Regulations (No. 2) 1992 is 8%. This gives an annual income of just under $62,000. I will assume that the investment will be in Government Bonds and attract a charge of 5%. That is $3,100 per annum. This amount calculated ~ ' '• : 0 0 0 0 -- 39 of 40 -- 0 0 j < • .,;_ .• 33 over 18 years using the 5% tables is approximately $37,000. The initial charge on $780,000 is $7,800. I will allow $45,000 to represent the Public Trustee charges. The total amount of damages adding the Public Trustee charge before apportionment is $993,698. That amount must be reduced by 10% to reflect the plaintiff's contributory negligence giving an amount of is $894,328.20. From that figure must be deducted the Workers' Compensation Board payments of $61,110.33 giving a figure of $833,217.87 which I will round off. There will be judgment for the plaintiff against the defendant in the sum of $833,218 after apportionment and after deduction of the Workers' Compensation Board payments. I give liberty to apply with respect to the arithmetical calculations set out in these reasons. I give liberty to the plaintiff and the Public Trustee to apply as to the working of thi.s order. I direct that the solicitor for the plaintiff Q provide the solicitor to the Public Trustee with a copy of these 0 reasons with the order for judgment. I will hear submissions as to costs. Counsel may bring in a minute of the formal order. -- 40 of 40 --