Cain v North Brisbane Hospitals Board & Anor [1992] QSC 160

TR.AJ'1SCRJPT OF PROCEEDINGS State Reporting Bureau, 4th F1oor, The Law Courts, George Street, BRISBANE. 0. 4000 Tel. (07) 227.4360 (Copyright in this transcript is vested in the Cro'Wil. Copies thereof must not be made or sold without the wrinen authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DERRINGTON J No 803 of 1987 GERARD JOHN CAIN Plaintiff and THE NORTH BRISBANE HOSPITALS BOARD First Defendant and FRANK SZALLAZI Second Defendant BRISBANE .. DATE 08/05/92 .. JUDGMENT 1 -- 1 of 24 -- 080592 HIS HONOUR: Judgment for the plaintiff in the sum of $264,653.78. Costs to be taxed. I publish my reasons. HIS HONOUR: My order for costs includes reserved costs. :w 30 2 -- 2 of 24 -- IN THE SUPREME COURT OF QUEENSLAND No. 803 of 1987 Before Mr. Justice Derrington BETWEEN: GERARD JOHN CAIN (Plaintiff) AND: THE NORTH BRISBANE HOSPITALS BOARD (First Defendant) AND:: FRANK SZALLAZI (Second Defendant) REASONS FOR JUDGMENT - D.K. DERRINGTON J. Delivered the 8th day of May 1992. CATCHWORDS: Negligence. Medical site of tracheotomy operation in position causing danger of complications. Occurrences of complication causation. Damages. Quantum. Permanent tube in throat for breathing. Unsightly and embarrassing. Discharges of mucus. Amelioration possible. Voice tires at end of day. Shouting and whispering difficult. Male 47 years. General damages $40,000.00. COUNSEL: SOLICITORS: Mr. C. Brabazon QC, and Mr. K. Boulton for the plaintiff. Mr. J. Bell for the defendants. Messrs Roy Gordon and Gordon for the plaintiff. Messrs Corrs Chambers Westgarth for the defendants. HEARING DATES: 23rd and 24th April 1992. -- 3 of 24 -- IN THE SUPREME COURT OF QUEENSLAND No. 803 of 1987 BETWEEN: GERARD JOHN CAIN (Plaintiff) AND: THE NORTH BRISBANE HOSPITALS BOARD (First Defendant) AND:: FRANK SZALLAZI (Second Defendant) REASONS FOR JUDGMENT - D. K. DERRINGTON J. Delivered the 8th day of May 1992. THE BACKGROUND On 28th February 1984 the plaintiff took seriously ill with pneumonia. On 5th March 1984 he was admitted to the Wesley Hospital, and then, on the next day, he was moved to the Royal Brisbane Hospital where he was kept in the intensive care ward and was intubated, which means that a tube was inserted into his lung through his mouth in order to assist him to breathe. Three days later a decision was made to perform a tracheotomy upon him which involves the removal of a small section of the trachea, or wind pipe, and the insertion of a tube through the hole (or stoma) which again provided air for his lungs. The trachea is supported by a series of horseshoe-shaped cartilages which are inaccurately but conveniently called tracheal rings. At the upper end they are connected to the lower -- 4 of 24 -- 2 cricoid cartilage which is a full ring in shape and is situated at the lower end of the larynx or bony structure housing the voice box, among other things. One reason for a tracheotomy is to avoid damage to the laryngeal area by a long period of intubation. The combined effect of the removal of a section of the cartilage from one or more of the tracheal rings, the intermittent pressure from the tube which is inserted in the stoma, and the common existence of infection in such cases may singly or together lead to stenosis by the destruction of cartilage in the tracheal ring. The shape of the trachea, unsupported by the cartilage and contracted by scar tissue, tends to collapse. The same result may occur to the cricoid cartilage if complete division of it should occur by surgery creating the stoma, or if a partial division from that cause is exacerbated by the fluctuating pressure of the tube which is inserted or by infection. The practical result of stenosis is to restrict breathing. This is not usually of much difficulty, but if the cricoid cartilage is involved, more serious results can obtain. The cricoid is more vulnerable because it is a full ring in the first instance, and if its integrity as such is destroyed, the stenosis has a more severe effect. Due to the architecture of the system at this point and the geometric shapes of the connection between the cricoid and the trachea, stenosis in this area will cause serious constriction with a substantial restriction of breathing. Moreover, it is very difficult to correct by reconstructive surgery. For these reasons, it has been the classical view among -- 5 of 24 -- 3 surgeons that a tracheotomy is better performed at a lower level, at about the third or fourth tracheal ring, and that a high tracheotomy should be avoided. THE EVENTS That was the intention of the second defendant in performing the relevant operation upon the plaintiff. However, it was a high tracheotomy which involved the first tracheal ring and probably the cricoid cartilage, as the evidence discussed below reveals. The result was that the plaintiff suffered precisely the adverse consequence which the precaution was designed to avoid and has suffered a permanent stenosis in that region. After an unsuccessful operation to correct his disability, he is left with the need for a permanent hole in his throat in which is inserted a removable tube through which he breathes. It is visible above his shirt collar, but a masking cover is commercially available and is said to work admirably, both cosmetically and by way of protection against the intrusion of foreign matter. He sometimes coughs phlegm through the tube, which can be rather disturbing to others present, despite his use of a tissue or handkerchief. His tube originally contained a valve which closed when he spoke but, finding that it gave him some little trouble, he removed the value and now places his finger or thumb over the opening of the prosthesis when he wishes to speak so that his breath will be directed through his vocal chords. In this way he can speak normally but with difficulty in shouting or whispering. He is very adept, no doubt by practice, in using this process and it is somewhat disguised. It is said that a -- 6 of 24 -- 4 suitable valve is now available and that his voice can be further improved with some training by a speech therapist. This evidence is uncontradicted but of course it is as yet unproved. There is no evidence whether the valve would also help to prevent the escape of mucus through the tube when he coughs or sneezes. Although the second defendant expressed the view in a note made at the time that he had inserted the stoma successfully at around the second and third tracheal rings, the internal site of the operation was observed by Dr. Colin Lomas, a highly respected surgeon, later in the same month in the course of a bronchoscopy undertaken because of the development of complications. He observed at the time that the tracheotomy was too high and involved the first ring and lower margin of the cricoid. It was a matter of some importance to him and he made an appropriate written note. This evidence is supported by the report of Dr. Bird, another very experienced specialist, who attempted an unsuccessful restructuring bone graft in the following month. He saw that the tracheotomy had been done through the first tracheal ring, through the cricoid and through the space in between. He also noted that the second and third rings were intact. It is reasonable to suppose that any migration of the stoma upwards would have left an unmistakable trail of damage to those rings which he would have noticed. This disestablishes a theory advanced for the defendants that the site of implantation may have been lower but that the tube migrated upwards while the plaintiff healed at the site which the tube had vacated. -- 7 of 24 -- 5 The evidence of these two witnesses, has been challenged in various ways. For example, there is evidence that it· is very difficult to identify the relevant geography of the trachea in the course of a bronchoscope. While this might be so, these witnesses both had the benefit of long experience and high expertise, and their professional status supported the impression which they gave in the delivery of their evidence, that they had acted responsibly in their evaluation of what they saw, and had not made the relevant allegations lightly. Dr. Bird, even revealed a willingness to retract in favour of the second defendant an earlier view which he had expressed on certain theoretical matters, but he did not retract his early statement of what he saw. It is difficult to go past the assessment of these two experienced specialists of what they saw, knowing of any difficulties in the process, in favour of a theoretical possibility which has no objective evidence to support its occurrence. Clearly, the second defendant believed that he had placed the stoma where he intended and he made a note to that effect at the time, but very honestly he conceded that he had no recollection of the matter. Axiomatically, if he were in error, he may not have been aware of the error for otherwise he would not have made it. There remains only his skill as a surgeon to support the proposition that he was accurate. He has excellent credentials as a surgeon, and it might be added that he did his honest best as a witness. Nevertheless, error is possible, even at that level, and it would not be right to prefer the implication of accuracy flowing from his expertise above the -- 8 of 24 -- 6 direct evidence of Drs. Lomas and Bird, even if the difficulties associated with a bronchoscopy are taken into account. On the evidence, the probabilities firmly support the plaintiff. Another exculpatory explanation that was offered for any misplacement of the stoma was the difficulty which a surgeon might encounter in performing the operation on a hospital bed in the intensive care unit, where this procedure was carried out. This line of defence was correctly abandoned but only at a late stage of the trial. On the evidence, it should never have been pursued. While the evidence supporting the location of the operation in the intensive care unit was impressive and most convincing, that feature played no part in the result, as the second defendant very properly acknowledged. LIABILITY That being so, as learned counsel for the defence again very properly conceded, if the incision were made incorrectly then the only reasonable conclusion on the probabilities must be that the second defendant was negligent in placing it there. However, a strongly contested issue remained as to whether this had any causal relationship with the plaintiff's condition. This question of causation was led into complexity but is really not so difficult. Wherever it is placed, a tracheotomy can cause stenosis, and in the present case there is no reason to doubt that it was at least the major contributing factor to that condition. That alone does not establish liability because stenosis is a risk common to this operation without negligence by anyone. The real issue is whether by reason of the incorrect placement of the stoma, an adverse result followed which would -- 9 of 24 -- 7 have been avoided if stenosis had followed the placement of the stoma at a lower level. On the evidence, the cricoid was at least damaged in the operation and, if not fully divided then, was divided by the further action of infection, and perhaps the alternating pressure of the tracheal tube, upon a partial division. Moreover, the stenosis involved the cricoid. Much debate was agitated upon the general undesirability or otherwise in theory of a "high tracheotomy", for some argued that the old dispensation was in error or went too far. However, even the most fervent adherents of the new order, which almost favours it despite relatively unproven results, baulked at denying outright the danger of dividing the cricoid. Indeed, the danger from full division is obvious because of the vulnerability of the ruptured ring to stenotic influences once its integrity is gone. And because of the possible effects of infection (which is of high incidence in such cases) and the pressure of the tracheal tube, even a serious partial irruption into the cartilage can have manifestly foreseeable, if less direct, adverse results of the relevant kind. On the evidence, it is probable that the plaintiff's cricoid was fully divided in the operation. Moreover, although he believed he was cutting the second and third tracheal rings, the second defendant said that he completely divided both. If the upper was in fact the cricoid, and if there were a complete division as he intended, that would coincide with Dr. Bird's observation that the tracheotomy was through the cricoid. It really does not matter precisely how, between the causes mentioned above, this came about. Because of the danger from -- 10 of 24 -- 8 such damage to the cricoid, that is, that it would be involved in the stenosis with such serious consequences, it was the second defendant's duty to place the site of the operation where he would not cause such damage by any such means and the harmful consequences would not be consummated. Whatever the virtues of "high tracheotomies", one which divides the cricoid or puts it in danger of division cannot be condoned on current knowledge, and should it be avoided. Yet this is what was done. And the consequences were those which were warned against. There is therefore in this case no difficulty in tracing, on the probabilities, the path from the high placement of the tracheotomy through the division of the cricoid to the sub-glottal stenosis, which is so much more damaging than one lower down. Whatever may be the resolution of the debate as to high tracheotomies, one which produces a division of the cricoid in one foreseeable way or another cannot be justified; and when the feared result appears, the causal relationship is well established. This is not to say that but for this factor the plaintiff would not have suffered from a lower stenosis which would have required reconstruction, but rather that the effect is worse and cannot be ameliorated by such reconstruction. It is this exacerbation which is directly caused, through various links, by the location of the tracheotomy. The plaintiff must therefore succeed. Some brief retrospective comment should be made about the conflicting evidence as to medical opinion of these matters. Discriminating between them was not easy because of the technical nature of the subject matter. The witnesses were all specialists -- 11 of 24 -- 9 and almost all spoke with total assurance. This was not that type of case which sometimes occurs where an expert who is correct may suffer as a witness by comparison with others through some hesitancy because he shows proper respect for other points of view. All of these witnesses had some sympathy for the second defendant and some more than others manifested a tendency to be protective of and to act as an advocate for him. With some witnesses this led to some proclivity to read the literature with an eye focussed for exculpating material. With others there appeared to be commitment to a point of view which reduced their capacity to view and state the situation in a totally balanced way, that is, to state the valid propositions on both sides. Although each witness contributed some knowledge to the final result, it became obvious in the course of their evidence which witnesses were prepared to state the matter with reasonable objectivity and a fair view of the total picture. In addition, on essential features relating to the present case, it became obvious where the weight of reasonable opinion lay. DAMAGES The plaintiff was an accountant aged thirty-nine years and he is now forty-seven years. From 1979 to the date of his illness he conducted a one-man practice with the aid of minimal office staff and he engaged sub-contractors for the professional work which he could not do himself, so that he was able to keep his costs down at that stage. However, he had the means for modest internal expansion. He had commenced that practice after having spent two years as an employed accountant during which he had built up a small clientele in his spare time. Prior to that, -- 12 of 24 -- 10 he had been a member of a larger firm of accountants but after some difficulty with one of the senior partners, he felt it expedient to retire from the partnership. There is nothing significant in this except that it demonstrates the variety of relevant contingencies of life and particularly those associated with larger partnerships. This is germane to his long-term plans, which he deposed to, of joining a large firm of the second or third order of magnitude by merger of his own practice after he had built it up. He was a competent accountant and a hard worker, though with the distractions of a large family to which he gave himself as a good father. By the relevant time he had the disadvantage of being older than those usually taken into large partnerships, though mergers with single practitioners of his age would not have been unknown. There would also have been a variety of other factors operating, such as reduced opportunity in adverse economic times, matters of choice, and the strength of competition, which could have interfered with the realisation of his plan. Moreover, it would probably have been more expensive for him to pursue, compared with the course which he did follow. It might be added that his explanation as to why a claim reflecting this plan was not included in his original statement of loss under the Practice Direction was not entirely convincing. It is likely that he had some notions of his future direction as he said but that they were of a vague and general nature, and that he was not so persuaded of their practicality as to have regarded this as a realistic claim to be included in his original statement of loss. -- 13 of 24 -- 1 1 As it has happened, he has not even tried to merge with a large firm and considering what he has done, which will be mentioned shortly, this may be indicative of the true strength of this design. It is true that his disability adversely affects his personal presentation to some extent, but it has not inhibited the advancement which he has made; and it is far from totally prohibitive of his entry into a larger firm. His personality and efficiency should be far more important than that, and the unfortunate features relating to his tube should not have interfered seriously with this man's chances. This will apply to the future also, particularly if he obtains a tube with a valve and disguises it with a cover. Of course, that line of professional advancement is still open to him despite the step which he has taken. At worst, the opportunity is only reduced. He has now merged with another firm. Although it was of modest size with three partners, one of whom was inefficient but has now gone, the combined practice has the opportunity of growth and expansion. As the result of this, it is probable that in the net result he has suffered some but only a little financial detriment by reason of his reduction in the chance of joining a large firm, but he must still be compensated for that loss; Malec v. J.C. Hutton Pty. Ltd. (1990) 64 A.L.J.R. 316. He certainly lost income as the result of his original illness and the added complications arising from the fault of the defendants. As he is only to be compensated for the added loss caused by the latter, its extent should be clearly defined. His illness was a totally independent factor which would have caused him loss for a period in any case. Further, it was not suggested -- 14 of 24 -- 12 that the higher tracheotomy would have predisposed him to a stenosis to any greater extent than a lower tracheotomy. Consequently, it is not correct to assume that the stenosis itself was the result of any negligence. Its more serious effect on his ability to breathe and the difficulty in reconstruction of the trachea were the only products of the negligence. Even if the tracheotomy had been correctly placed, any stenosis may not have required reconstruction of the trachea, but then again it may have done so. Equally, if reconstruction had been necessary in those circumstances there was still a possibility that it would not have been successful. So far as the evidence shows, the need for reconstruction would have been something less than an even chance and the prospects of success of reconstructive surgery in those circumstances would have been reasonably high. However, these risks must be taken into account in determining the extent to which the negligence of the defendants has adversely affected him. It probably delayed his return to work for on 22nd April 1984, he was returned to hospital where the tracheotomy was resi ted. He returned to work part-time in June but on 2nd August 1984 he was again admitted to hospital for the attempted reconstruction of his trachea. He was again admitted to hospital on 4th October 1984, 1st November 1984 and 20th June 1985 for dilation of the trachea to ease his breathing. These events are also probably related to the negligence. He continued to suffer from recurrent infections and it was not until 25th March 1986 that it was found that part of the bone graft which had failed had lodged in his lung, and it was -- 15 of 24 -- 13 removed. Since then he has steadily improved. By early 1988 he had generally recovered but he still suffers from ·occasional infection, diminishing in incidence, which has caused him to attend upon his general practitioner on about three or four occasions a year on average, reducing to a couple of times a year at present, and to be prescribed antibiotics. Of course, although he has completely recovered from his pneumonia, some of these infections might be expected to have occurred in any case, but the position is certainly aggravated by his present breathing arrangement. However, since his last operation he has lost little if any working time, although his capacity must have been reduced from time to time. Because his throat tube is visible he is embarrassed occasionally when people stare at it and reasonably he feels that he has lost some clients who have been put off by its appearance and his need to occlude it with his finger when he speaks. Similarly, there is also some small embarrassment when he coughs and produces mucus through the tube. However, as it has been explained, these matters can be considerably improved. From these details it will be seen that he certainly suffered from direct loss of income over and above that loss which would have resulted from his illness and possible natural complications and no doubt this added loss would have continued until about 1986, when his operation provided relief from the consequences of the failed bone graft. In addition, there was indirect loss flowing from retardation in the development of his practice. However, it is difficult to accept that he would not have substantially caught -- 16 of 24 -- 14 up by the time he had merged with his present firm on 1st January 1989. There would probably have been some small continuing residual loss and that would probably have affected the value of the business which he brought into the merger. Realistically it is impossible to find that at present his loss attributable to some small residual loss through this delayed development, through some adverse features of his presentability to clients and through some small reduction of his chance of higher earnings in a larger firm, is other than relatively modest. Learned counsel for the plaintiff have kindly provided schedules of suggested loss which naturally do not show the minimum figures available. Of these it is suitable to deal with past loss first, and ex. 51 is a useful exercise to use as a focus for discussion. It sets out the theoretical loss using the gross projected income of the business, a hypothetical figure representing the percentage of gross income attributable to net income, and after adjustment for tax it compares the result with the actual income to show the theoretical loss. In the exercise, the figure of forty per cent of the gross fees as representing the relationship of his average net income before tax is a reasonable, if not ungenerous, one and can ~onveniently be adopted. The figures then used as the projections of the gross fees which the plaintiff might have been expected to earn if he had not been injured are probably over-generous. The rates of growth adopted are, in total, questionable and they make no allowance for adverse contingencies. Moreover, the result includes his loss from his illness and complications ordinarily flowing from -- 17 of 24 -- 15 it as well as the loss attributable to the defendants. As with the latter, the retarding effects of the former would have continued but gradually diminished as he would have recovered the lost ground. Further, for the period after 1st January 1989 when the plaintiff entered his present partnership, there has been an artificial reduction in earnings due to difficulties encountered with one of the partners who was finally removed. This has not been properly reflected in the exercise. Moreover while the new firm suffered additional costs by relocating and re-organisation, the plaintiff also would have been put to these expenses by the growth of his own practice if he had not merged with the new firm. Allowance has been made for these factors in respect of their effect on the actual earnings shown in the exercise, but no allowance has been made against the theoretical earnings. The result is to inflate the resulting loss. With due recognition of all of these factors, both positive and negative and of varying quality and strength, and after allowance for general contingencies in both directions, it is possible only to reach a global result by reference to the exercise, adopting such of it as may be acceptable and making suitable adjustments where necessary. The resulting figure is a net loss of $120,000 to the present date. Interest should be allowed at six per cent per annum. the period should be limited to six years because of delays on the plaintiff's side. That produces a figure for interest which should be rounded to $43,000. -- 18 of 24 -- 16 For future economic loss there should be an allowance of $10,000. This repr·esents a combination of all the factors which will operate to his loss, including loss from absence from work due to his increased vulnerability to infection, loss of clients who are put off by his affliction, his loss of opportunity of attracting clients because of his need to keep a lower profile, and loss of some chance of joining a larger firm. These are all relatively modest and will be mitigated by his present membership of a suitable firm and the availability of a tube cover and tube-valve. For example, it is doubtful whether he will lose any chance of merging with a large firm if he uses a tube with a valve and wears a cover over it. By now he has probably recovered fully from any interference in the development of his practice and any time he may lose in the future through relevant infections will probably be largely absorbed by his enlarged work force in his new firm. This proposed sum in his hands now should be very adequate for future losses and small lost chances. The next head of damages relates to gratuitous services. First, there should be an allowance of $1,000, including interest, for Blue Nursing Services even without the plaintiff's undertaking to make such a payment to that organisation, for he is entitled to his damages under this head whether he intends to pay it or not. Of course, he should do so but it is not a legal obligation necessary to the remedy. The award is made in respect of gratuitous services. In respect of the other gratuitous services provided by his wife, the claim is grossly exaggerated. The claim for lawn -- 19 of 24 -- 17 mowing fails to take into account these factors: that the mowing of the lawns is for the benefit of all of the members of the household; that his children should be capable of contributing and should contribute to this service as part of their ordinary share of household duties; that the plaintiff in fact did some mowing; and further that was perfectly capable of re-adjusting household duties so that he could perform his share of them by selecting tasks which would not cause him any difficulty while others did the mowing. For the future, much the same considerations apply, but in addition the use of a simple foam and woven cover to prevent foreign bodies from entering the tube should alleviate the problem further so that he should be able to mow the lawn even more frequently than he does now. His claim for other domestic services provided by Mrs. Cain is similarly exaggerated, though no doubt the lady's view of these matters was considerably heightened by reason of the stress which she herself has experienced. Apart from the added attendance upon him at the time due to this aggravation of his illness, she has helped him with the cleaning and replacement of his tube and has attended to the additional cleaning to his shirts, ties and suits made necessary by mucus escaping from the tube. The changing and cleaning of his tube which was very regular in the worst times, has reduced in frequency to only once in about every four to six weeks at present. One difficulty of the claim is that she attends to some aspects of this procedure which the plaintiff could very well do for himself and it seems that her help is necessary for only a very short period on each -- 20 of 24 -- 18 occasion. Consequently, not only were the periods of time for which the claim is made very generously assessed but they also include services which were not necessary. Further, the rate claimed is exorbitant. It is the rate for a registered nurse (including travelling time) whereas the service was provided by an unskilled person with a minimum of instruction in her own home. The claim for domestic care bears the same hallmark of optimism. It includes some cleaning of walls which the plaintiff might be expected to have done himself. Even if allowance were made for that, the period claimed is excessive for the additional work involved. Needless to say, the rate charged is also excessive when it is understood that services were performed in Mrs. Cain's own home at her own time and in the course of her ordinary work. The claim for cleaning of shirts and ties is legitimate if it is confined to the additional work involved. However, the time suggested to be necessary for the additional brushing the collars of a week's supply of shirts after soaking seems to be generous, even if the cleaning of ties is included. The dry-cleaning of suits should have been part of normal family shopping. An allowance of $2,500 for past assistance and $1,000 for future assistance is reasonable, having regard also to the chance, small though it was, that similar or some complications may have followed a competent operation, and to the exclusion of allowance for services rendered necessary by the plaintiff's original illness. For the future, it is to be expected that the problem will be at least ameliorated if the plaintiff pursues, -- 21 of 24 -- 19 as he should, the recommendations made by the speech therapist. Interest of $900 should also be allowed in respect of past loss. The sums of $10,582.78 for medical expenses and $5,421 for other special damages have been admitted. In addition to the agreed sum, the plaintiff claims for visits to his general practitioner and for antibiotics during the last four years. The former at least is in excess of his own description in evidence of his present requirements and it is reasonable to allow a sum of $500 for this, making his total special damages $16,503.78. Interest of $6,000 should be allowed on these. For future recurrent expenses, there should be an allowance of about $7.00 per week for medical and other costs relating to his tube. This should be limited to twenty-five years to allow for contingencies and produces a figure of about $5,250. Some allowance should be made for the wear and tear on his shirts and ties and additional dry cleaning, although this should be reduced if he follows the advice of the speech therapist. A figure of about $3,000 is appropriate for this component. For the loading of $1,000 per annum on his life insurance premium, a realistic allowance after provision for contingencies is for 20 years. That produces a figure which should be rounded up to $13,000. The total allowance for recurrent expenditure is therefore $21,250. The final head of damage consists of general damages for pain suffering and loss of amenities of life. The plaintiff's voice is generally normal though subject to tiredness and affected a little in some functions but this can be improved. He suffers some embarrassment which has been referred to above, -- 22 of 24 -- 20 and which also interferes to some extent with his social life; but again this can be substantially remedied. Even now, he still participates in much the same activities as before, if to a reduced degree and in a less prominent role. He is disabled from swimming or surfing, but makes no complaint of the loss of other recreational activities. He attends gymnasium three times per week and apparently his general health is not affected by this disability. His tutorial assistance to his children has been slightly diminished by his reduced endurance for talking, but he is still able to enjoy that recreation. He suffers some inconvenience in the time spent in changing and cleaning his tube and perhaps in cleaning some mucus which might escape. No doubt he suffered pain and discomfort from the procedures which were necessary as the result of the added complications which beset him. In this respect there was nothing unusual except that he suffered some recurring infection from the dislodgment of the bone graft into his lung, a condition which continued for a surprisingly long time before it was rectified. The only qualification to his continuing general good health is that he is more prone to infection but the above allowances includes his immunisation against influenza each year and this does not appear to be a serious source of damage. Notwithstanding his good recovery and his retention of his capacity to do almost all the ordinary things in life, he must still find it a burden to his comfort and happiness to have a tube permanently inserted in his throat. It gives rise to a number of small inconveniences and some loss of self-esteem and embarrassment. He has a healthy approach to these things and, -- 23 of 24 -- 21 being accustomed to them, no doubt he tolerates them more easily as time passes. But he should still be compensated for this disturbance to his enjoyment of life. General damages should be assessed at $40,000 of which $20,000 should be attributed to past loss, attracting interest at the rate of two per cent per annum, which should be rounded to $2,500. In summary the award of damages is as follows: Past economic loss Interest thereon Future economic loss Refund to Blue Nurses Service Griffiths v. Kirkameyer factor Interest Special damages Interest Future recurrent expenses General damages Interest thereon TOTAL 120,000.00 43,000.00 10,000.00 1,000.00 3,500.00 900.00 16,503.78 6,000.00 21,250.00 40,000.00 2,500.00 $264,653.78 There is judgment for plaintiff in the sum of $264,653.78 and costs to be taxed. -- 24 of 24 --