Field v Nominal Defendant (Queensland) [1992] QSC 28 [1992] 2 Qd R 288

IN THE SUPREME COURT OF QUEENSLAND No. 1011 of 1991 Before Mr. Justice G.N. Williams BETWEEN: DAVID FIELD First Plaintiff SHIRLEY ANN FIELD ' ) Second Plaintiff THE NOMINAL DEFENDANT (QUEENSLAND) Defendant JUDGMENT - G.N. WILLIAMS J. Delivered the 21 day of February, 1992. CATCHWORDS: / '\ ~ Damages - male 51 at accident - head injury with mild diffuse brain damage - reactive psychiatric illness superimposed - minor orthopaedic injuries - total award $206,467.50. Counsel: Mr. Myers for Plaintiff. Mr. J. Barbeler for Defendant. Solicitors: Mcinnes Wilson & Jensen for Plaintiff. Phillips Fox for Defendant. Hearing date: 6th, 7th and 10th February, 1992 -- 1 of 24 -- IN THE SUPREME COURT OF QUEENSLAND No. 1011 of 1991 BETWEEN: DAVID FIELD First Plaintiff SHIRLEY ANN FIELD Second Plaintiff THE NOMINAL DEFENDANT (QUEENSLAND) Defendant I ) JUDGMENT - G.N. WILLIAMS J. Delivered the day of February, 1992. At the outset of the trial I was informed that the action brought by the second plaintiff had been compromised and that there was no need for me to make any orders relating to that matter save with respect to costs. So far as the claim of the first plaintiff is concerned the defendant admitted liability and only the question of quantum of damages falls for determination. Further, counsel for the defendant informed me that he would not argue that in the circumstances of this case s. 20 of the Motor Vehicles Insurance Act 1936 (as amended) operated so as to reduce the quantum of damages to which the first plaintiff might otherwise be entitled. Some further concessions were made by the defendant during the trial and it is convenient to note them here. It was admitted that the first plaintiff had incurred special damages -- 2 of 24 -- 2 totalling $2,300.00. It was further admitted that the Gold Coast Hospital was claiming that the first plaintiff was liable to pay to it the sum of $2,700.00. The defendant conceded that if that claim was validated by the Public Hospitals (Third Party Patients) Validation of Fees and Charges Act 1991 then it was liable to the first plaintiff in that sum; but counsel for the defendant submitted that the Act did not in the circumstances of this case validate that charge. Finally it should be recorded that it was agreed that if I should allow the first plaintiff damages under the Griffiths v. Kerkemeyer principle with respect to services rendered by his wife then such assessment should be on the basis of $9.00 per hour for such services. There is no doubt that the plaintiff received some personal injuries when he was knocked down whilst on a pedestrian crossing at Southport on the evening of 16th May, 1989. He was conveyed from that scene to the Southport Hospital where he remained an in-patient until 25th May, 1989. The plaintiff was born in the United Kingdom on 15th August, 1938 and emigrated to Australia in 1965. He had served an apprenticeship as a toolmaker and worked for a number of companies in various parts of Australia primarily as a toolmaker or as a fitter and turner. He seems to have had regular employment from 1965 to the end of 1987; indeed for the last 13 years of that period he had been employed as a fitter by Hammersley Iron. He left that firm in December 1987 when he voluntarily accepted a redundancy package offered to employees. Because of his years of service he received approximately 0 0 0 0 ~---~ ~--~~------~--~-~ ~~~~~~~~--~- -- 3 of 24 -- 3 $90,000.00 on termination. He and his wife then toured Australia, travell·ing slowly from the north-west of Western Australia until they reached the northern rivers area of New South Wales. They decided to settle in Alstonville; the plaintiffs bought a house there in about July 1988. The first plaintiff looked for work in that area but was unable to find anything suitable. He said in evidence that it was "destroying me not having a job" and in consequence he responded to an advertisement he saw in the Commonwealth Employment Service office at Mermaid Beach with John Wilson Engineering on the Gold Coast. He started work with that firm in about November 1988. Initially he was employed on a casual basis because, as Wilson put it, he had not worked with small engines. But he adapted well; Wilson could not fault his work and prior to the accident had made the position permanent. The plaintiff's commencing salary was $335.00 per week net. As a result of the accident the plaintiff sustained orthopaedic injuries and a head injury to at least some extent. The major issue at the trial was whether or not the plaintiff had sustained as a result of the head injury brain damage which was causing ongoing problems, or whether the underlying cause of his present condition was depression or other psychological illness precipitated by the accident. The plaintiff has been unable to resume full-time employment since the accident and his case was that he was now, and would remain, totally unemployable. If brain damage was a cause of the plaintiff's inability to resume employment then it was not seriously contested that his future employment prospects were bleak; however, if his problems were -- 4 of 24 -- 4 mainly psychological it was submitted that after appropriate treatment he would be able to return to the workforce. Those are the critical matters for my decision, but it is convenient to deal firstly with the orthopaedic injuries because they were not the subject of as much dispute. Not surprisingly the plaintiff received numerous soft tissue injuries, particularly to his neck and left leg. Relevantly, when examined at the hospital on admission, he complained of pain in the left shoulder, the neck, and in the left leg. X-rays of those areas revealed no fractures; degenerative changes were noted at the AC joint of the left shoulder. On a C.T. scan of the cervical spine degenerative changes were noted with prominent osteophyte formation at CS-6. The hospital records reveal that the pain in those areas continued throughout his stay in hospital, and he received various treatments with a view to alleviating that pain. It should also be noted that an x-ray of the plaintiff's right foot taken whilst in hospital showed "no definite fracture line" in the phalanges of the big toe, however there were 0 0 0 "degenerative changes in the interphalangeal joint". Q At the request of the plaintiff's solicitors Dr. D. Morgan, an orthopaedic surgeon, examined the plaintiff on 12th September, 1990 for medico-legal purposes. Dr. Morgan' s report was tendered by consent and he was not called to give oral evidence. It seems clear that he did not have the advantage of perusing the hospital records, and he appears to have substantially accepted the plaintiff's statement as to the injuries he sustained in the accident. For example, Dr. Morgan records that, inter alia, the -- 5 of 24 -- ( \ \ ( ) 5 plaintiff sustained a fracture of his right hallux. Dr. Morgan had x-rays taken which appear to be substantially consistent with those taken at the Southport Hospital. Dr. Morgan concluded that the symptoms referrable to the cervical spine were typical of degenerative arthrosis which was longstanding and would "most certainly have pre-dated the road traffic accident". But in his opinion there had been some exacerbation of that pre-existent disease which would be "temporary". In his view the plaintiff 1 s long term prognosis was not affected by the accident. Again the doctor expressed the view that the plaintiff 1 s symptoms referrable to his lower lumbar spine were typical of a discogenic anomaly which pre-dated the accident; he expressed the opinion that there was some temporary exacerbation of that pre-existing condition which would be of no significance in the long term. The doctor then went on: "The radiographs of the left knee confirm some early minor degenerative disease which may also have pre-dated this accident. He has no currently measurable functional disability, and is unlikely to develop any disability ~ which could be causally related to this incident." On the assumption that the plaintiff sustained a fracture of the right hallux in the accident the doctor considered that such could be responsible for the degenerative changes to that area noted on the x-rays. Based on that the doctor assessed that there was a two per cent loss of normal function in the left lower limb. Given the degenerative changes in that area noted on admission to hospital, I do not accept Dr. Morgan 1 s view; indeed it must be said that in all probability the doctor would -- 6 of 24 -- 6 have also reached that conclusion if he had the benefit of considering the earlier x-ray. So far as the left ankle is concerned Dr. Morgan concluded that the plaintiff had no functional disability, and was unlikely to develop any which could be causally related to the accident. He was also unable to explain the infrequent symptoms complained of in the region of the right wrist joint. With the qualifications I have made I accept and rely on the opinion of Dr. Morgan. In my view there is no real inconsistency between what he said and the opinion of Dr. Anderson, the orthopaedic specialist who examined the plaintiff at the defendant's request. Dr. Anderson assumed some specific injury to the big toe in the accident, but concl~ded that it did not basically interfere with normal activities. However, he is of the view that there may well be some ligamentous strain still persisting in the region of the neck which is exacerbating the pre-existing degenerative condition. More significantly Dr. Anderson expressed the view in oral evidence that the pre-existing degeneration in the plaintiff's cervical spine was such that his ability to work would be diminished by age 60. I accept and act upon Dr. Anderson' s opinion that, disregarding the accident and its consequences, the plaintiff's ability to work would be reduced by age 60; but that he nevertheless would have some residual working capacity until at least age 65. I now turn to the more controversial question, namely whether or not the plaintiff suffered brain damage as a result of the accident. 0 0 0 0 -- 7 of 24 -- 7 Before considering the medical opinions it is desirable that I refer to some of the evidence relevant to this issue and make findings thereon. I am satisfied that there was quite a distinct and dramatic change in the plaintiff brought about by the accident and his period of hospitalisation. He returned to work in about July 1989, but was virtually dismissed after being back for only a few weeks. Wilson said that when the plaintiff returned to work he was "very slow compared with what he wa~ ) before the accident". He explained the position as follows: __ ) "Well, a job that would take an hour, he would take two to five hours quite easily. If his concentration was broken, like if we had morning tea or he went to the toilet, he would quite often come back and he didn't know what his job was, he would have to come and ask somebody to sort of put him back on what he was doing. In the last week he was there I gave him a job which normally took two hours and he took ten hours to do the same job. So, we sat down that night and had a talk and realised that he just- he couldn't stay, I couldn't afford to keep him, and he came - he came to me with the same sort of solution." Wilson also stated that on his return the plaintiff was put on \ ( ) "light duties"; he was not given any "large jobs to do". Under cross-examination Wilson used the term "definitely" to describe the plaintiff's "memory problems". \ The plaintiff's wife gave evidence as to changes in his personality since the accident. In my assessment of her Mrs. Field did not exaggerate in describing the plaintiff's. condition, and I generally accept her evidence. The plaintiff himself also touched on such matters during his evidence and I formed the view that he was aware of his defective memory but could do nothing about it; his insight into his disability made him angry and depressed. Generally I regarded the plaintiff as an honest witness when dealing with such matters. -- 8 of 24 -- 8 It follows'that I accept that from the time of the accident there has been a marked change in the plaintiff's personality; there have been significant behavioural changes present since that time. He is generally slower in all that he does, and he has significant difficulties with his memory. He forgets things easily and becomes angry and frustrated when he becomes aware of memory loss. He is much more irritable now, and he has a decreased frustration tolerance. Those matters are putting a grave strain on the marriage and, as Mrs. Field in particular conceded, the future of the marriage is extremely doubtful. I accept that those changes were manifest very shortly after the accident. There was a strong suggestion in the case for the defendant at trial that such changes in personality only became manifest after the plaintiff had lost his job and begun to experience economic difficulties. It was also suggested that his depression was a significant cause of the behavioural changes being, at least in part, the result of his becoming aware of the opinion of certain persons that he had suffered brain damage in the accident. 0 0 0 Essentially I reject those suggestions raised by the Q defence. They are, in my view, inconsistent with the evidence that the plaintiff voluntarily returned to work in July 1989 and Wilson's evidence as to the plaintiff's then total inability to perform to his pre-accident standard. There may be some truth in the suggestion of counsel for the defendant that the plaintiff returned to work too soon, but that does not alter the overall picture created by the evidence. It is significant that it was only after the plaintiff experienced great difficulty at work -- 9 of 24 -- 9 (indeed it may well have been after his employment was terminated) that he first consulted Mrs. Gordon, the neuro-psychologist (on 14th August, 1989); she was the first (on the evidence) to express the view that the plaintiff was brain damaged. The defence made much of the fact that fairly regularly until the time of trial the plaintiff flew ultra-light aircraft. Apparently about once a month he takes such an aircraft up for ) a few circuits and then lands it. Generally he is not in the air ( ) I \ for more than a few minutes at a time. It may well be, as Dr. Toakley suggested, that the plaintiff is "mad" to do so given his overall condition - whether there be actual brain damage or merely psychiatric illness. But the fact that the plaintiff has been able to do that does not, in my view, disprove his claim that there is some brain damage present. I do not find that Dr. Cameron's evidence goes so far as to say that a person with some mild diffuse brain damage could not physically fly an ultra-light aircraft; that it may be unwise or unsafe for him to do so given his condition (whatever the real cause be) is beside the point. I turn now to the medical evidence. One of the matters which produced a conflict in the medical evidence was the question whether or not the plaintiff sustained a fracture to the base of his skull. There is reference throughout the hospital records to "probable base of skull fracture" and it is clear that for much of the time he was an in-patient the plaintiff was under neurological observation for head injury. The x-ray taken at the hospital on 16th May was reported on as follows: "The lateral film was taken brow up and demonstrated a [thenoid] sinus fluid -- 10 of 24 -- 10 level. This indicates a base of skull fracture. No vault fracture shown. " In the typewr·i tten x-ray report which forms part of the hospital records the word "thenoid" appears to be crossed out and a word, probably "sphenoid", written in. Indeed to the best of my researches there is no such thing as a "thenoid sinus" but there is a "sphenoid sinus". The probability of the latter being correct is confirmed by the doctor's notation on the "Brief In-patient Admission Summary" which says of the skull x-ray: "Probable base of skull fracture with sphenoid sinus fluid level." In his oral evidence, and in his recounting his history to various doctors, the plaintiff referred to the fact that whilst in hospital he had some "bleeding" from his nose; one such instance was when he was in the shower with warm water flowing over his head. Based on all the available evidence Dr. Toakley, a very experienced neuro-surgeon, expressed the opinion that the plaintiff had in fact sustained a fracture of the base of the skull. He stated quite categorically in oral evidence that fluid (presumably cerebral fluid) only gets into the sphenoid sinus if there is a fracture of the base of the skull. He conceded that with many fractures to that area the sense of smell is lost but in his view there could be such a fracture resulting in fluid collecting in the sphenoid sinus without of necessity the sense of smell being lost. The plaintiff's sense of smell is in fact intact. Or. Toakley considered that the "nose bleed" whilst under the shower was of some significance. There was no direct 0 0 0 0 ~~-~- --- -- 11 of 24 -- 1 1 injury to the nose which would explain that occurrence. Under cross-examination he said this: "Q. Earlier you said that it was significant that there had been what was described as a nose bleed while in the shower?- A. Yes. Q. What is the significance of that in relation to the fluid in the sinus?- A. If they have a crack at the base of the skull it bleeds down into the nose. If after a period of time the clotting of the vessels there break and the fluid, they then bleed and blood comes out of the blue as it did in his case in the wheelchair. Q. The warm water from the shower could have precipitated it?- A. Suddenly bleed. If he had a damage to his nose he would have had a bleeding nose at the start not later on. Tend to make me feel he has a fracture in the floor of his skull in the front somewhere." There was some evidence that after moving to Alstonville, but before the accident, the plaintiff had suffered an allergic reaction to pollen in the region and had experienced what could broadly be described as some sinus problems. Dr. Toakley was asked under cross-examination whether that could provide an / ) \ / explanation for the fluid evident on the x-ray and he conceded \ that it was a "remote possibility". In the doctor's opinion if such was the cause of the presence of the fluid there would have been fluid showing up in other sinuses as well - that is, the fluid would not have been limited to the sphenoid sinus. It was submitted on behalf of the defendant that Dr. Toakley's evidence was inconsistent with that given by Dr. Weidmann, a neuro-surgeon, and Dr. Cameron, a neurologist. It is therefore necessary to refer to their evidence. Dr. Weidmann spoke of the hospital records indicating there was no definite diagnosis of skull fracture. He referred to the fact that x-rays showed "there was some fluid within one of the -- 12 of 24 -- 12 nasal sinuses" and went on to state that such could occur after a skull fracture. He then said that such a condition could occur for many other reasons, such as nasal allergies. In my view it is significant that Dr. Weidmann did not specifically advert to the fact that the Southport Hospital records, including the x-ray, indicated that there was fluid in the sphenoid sinus and in that sinus only. His evidence is therefore not as precise as Dr. Toakley's on the point and I do not regard it as necessarily inconsistent with the more detailed opinion expressed by c=) Dr. Toakley. In his written report Dr. Cameron observes that the Gold Coast Hospital records "state his head injury was minor and there was a query base of skull fracture". He went on to express the opinion that there was "only a possibility he suffered a skull fracture". In oral evidence his attention was directed to the hospital records and he stated "there was mention there he had some blood in his ethmoid sinus on his skull x-ray on admission to hospital". He then went on to say: "People are implying from that that he may have had a fractured skull. He may have. The sense of smell - the olfactory nerve sits very close to that region and is usually damaged in a fracture to that site. The sense of smell was normal. Taste was normal, which also can be impaired in a fracture to the base of the skull. Also the hearing can be impaired in one ear through a fracture to the base of the skull." It is difficult if not impossible to evaluate that evidence because of Dr. Cameron' s reference to the "ethmoid sinus". There is such a sinus but it is not the sinus referred to in the hospital records. Perhaps the doctor's confusion arose from the use of the word "thenoid" in the typewritten x-ray report; but I have already dealt with that. It may be that a fracture to the 0 0 0 -- 13 of 24 -- 13 base of the skull admitting fluid to the sphenoid sinus would be less likely to affect the vi tal nerves referred to by Dr. Cameron than a fracture so located as to permit fluid to enter only the ethmoid sinus. Such issues were not canvassed with the doctors and therefore it is extremely difficult to evaluate the respective opinions. But it can be said that Dr. Toakley' s evidence is more specific and accurately based on the contents of the hospital report. Further, it is true that Dr. Cameron did not place any significance at all on the "nose bleed" incident. He correctly pointed out that the hospital records did not refer to the incident; but in the circumstances I accept the plaintiff's evidence that such did occur. It is in those circumstances that I must make a finding as to whether or not the plaintiff suffered a fracture of the base of his skull in the accident. I have carefully considered all , \ of the evidence given by the various doctors on this point, and l ) I have taken into consideration the matters to which I have specifically referred in these reasons. But at the end of the \ day I have come to the conclusion that the evidence of Dr. Toakley is preferable and I accept and act on it. I therefore find that the plaintiff did suffer a fracture to the base of his skull in the accident. It therefore follows, to use the medical terminology, that the plaintiff suffered "an open head injury". As Dr. Toakley pointed out, with an open head injury the period of amnesia may be short and the level of unconsciousness only slight, yet the person will suffer brain damage. I take him to be saying that -- 14 of 24 -- 14 the duration of amnesia and level of consciousness are more relevant in considering the extent of a closed head injury than an open head injury such as was sustained by the plaintiff here. Much of the time at the trial was taken up with the question . whether or not the testing by the neuro-psychologists ( Gordon and Field) independently established the existence of brain damage, particularly frontal lobe or temporal lobe dysfunction. It seems to me that Drs. Toakley, Cameron, and Weidmann are in agreement that, in the absence of other evidence, such testing could not establish the existence of brain damage. But I accept the evidence of Dr. Toakley that such testing may tend to confirm a provisional diagnosis of brain damage based on clinical observations. In the circumstances the opinions of the witnesses Gordon and Field do not carry any independent weight; my findings are not based in any way on the opinions each has expressed save to the extent that Dr. Toakley found that testing to be confirmatory of his diagnosis. Therefore I have come to the conclusion, primarily based on the evidence of Dr. Toakley, that the plaintiff suffered a fracture of the base of his skull with some concussion which has, on the balance of probability, occasioned some relatively minor bFain damage which is still interfering with the plaintiff's ability to concentrate and think properly. I further find that the brain damage is of relatively minor extent, and that it is not possible to localise it to any particular part of the brain. To the extent that the brain damage affects memory and concentration there may be some slight improvement in the future, () 0 0 0 -- 15 of 24 -- '\ ' ,, / \ 15 but the probability is that the present condition will remain permanent. So that there is no confusion as to my findings I will expressly state that I am not satisfied on the evidence that the plaintiff is suffering from either frontal lobe or temporal lobe dysfunction. I accept the medical evidence which is to the effect that the plaintiff does not present with the usual indicia of a person with frontal lobe damage. But equally I am satisfied that superimposed on that injury to the brain is a marked psychiatric illness. As time has gone by the plaintiff has become anxious, angry, frustrated and depressed and he now has a significant psychiatric illness. His claim for damages has been brought to trial very quickly (it is still less than three years from the date of the accident), yet the pending litigation has been an aggravating factor. In my view the psychiatrists, particularly Dr. James and Dr. Petroff, have observed the symptoms of psychiatric illness and have not fully appreciated the extent to which there has been some underlying brain damage. But I accept the view of the psychiatrists that with the resolution of the litigation, and with appropriate psychiatric treatment and management, the plaintiff's condition will improve to considerable overall extent. However the plaintiff will, in consequence of the brain damage, suffer from impaired concentration and impaired memory, at least to some extent, for the rest of his life. Given the findings I have made to date I am of the view that the plaintiff has been totally unemployable from the accident to the date of trial. The critical question becomes whether or not, -- 16 of 24 -- 16 with appropriate psychiatric treatment, he has any residual earning capacity. I accept Dr. Anderson's evidence as to the probable consequence of the natural progression of the degenerative disease to the plaintiff's cervical . spine, namely that his ability to work would thereby be significantly reduced by age 60. But that condition alone would not have made the plaintiff totally unemployable by that age. It seems to me that even now the plaintiff has a limited I () residual earning capacity, though it is difficult for him to find a sui table job given the current economic climate. He is working on a voluntary basis at the present time and that in itself Q demonstrates a capacity to work. That position will, on the balance of probabilities, improve to some extent with the resolution of the litigation and successful psychiatric treatment for his depression. Some discounting must also be made for the fact that the 0 plaintiff was in what could be described as "pre-retirement mode" at the time of the accident. He had accepted the redundancy package and moved east with a view to retirement. At age 51 he c=> was neither mentally nor economically motivated to cease work entirely, but he was certainly looking toward a more leisurely lifestyle then he had been accustomed to in the past. Particularly bearing in mind Dr. Anderson's evidence, there was a real probability he would have been looking for retirement, at least substantially, by age 60. In any event he will on the balance of probability not be employable until his depression has responded to some extent to -- 17 of 24 -- 17 treatment and then (assuming he can find a job) his earning capacity will be less than it was prior to the accident. It is difficult to quantify the extent of the reduction in the plaintiff's future earning capacity insofar as that may be productive of economic loss, but doing the best I can on the evidence (and taking into account all relevant discounting factors) I find that the proper measure of that loss is two-thirds of his pre-accident earning capacity for the next ten years. I mentioned above that counsel for the defendant argued that the plaintiff was not liable to pay the $2,700.00 demanded by the Gold Coast Hospital. It can be assumed that but for the passing of the Public Hospitals (Third Party Patients) Validation of Fees and Charges Act 1991 the plaintiff would not have been caught by the definition of "third party patient" in the relevant Regulations and that the Hospital would not have been legally v entitled to recover the sum in question. The Act operates from \ 18th July, 1991 and by s. 4(1) it is declared that a Hospital's Board "always had the power to impose fees and charges . . . in ~ respect of third party patients" as defined in the 1991 Regulations notwithstanding the earlier definitions. It is clear that the plaintiff is a "third party patient" within the definition in the 1991 Regulations; indeed the contrary was not argued. The only argument addressed to me was based on s. 4(3) which is in the following terms: "Sub-section (1) does not affect- (a) a decision of a court before the commencement of this Act in relation to the liability of a third party patient to pay the fees and charges mentioned in sub-section (1); or -- 18 of 24 -- 18 (b) a decision of a court after that commencement in relation to such a liability if the liability was in issue before the court at that commencement." Clearly the present situation is not caught by para. (a); my decision, which will be the only relevant decision, comes after the commencement of the Act. But it was submitted that, as the proceedings were commenced on 20th November, 1990 and the Statement of Loss and Damage which referred to these charges was delivered in April 1991, the liability of the plaintiff to pay the charges demanded was in issue before the court as at the date of the commencement of the Act - if only because the quantum of damages, including that sum, was then generally in issue. The question is really one of statutory construction and, c=) in my view, involves a consideration of sub-s. 3 as a proviso to the essential provision of the legislation, namely s. 4(1). I have come to the conclusion that the defendant's argument cannot be sustained. The "mischief" to which the Act was directed was brought to light by Kneipp J. in Smith v. Day (unreported, 0No. 122 of 1989) and Janke v. White & F .A. I. (unreported, No. 299 of 1989, judgment delivered 25th March, 1991) and some decisions of District Court Judges to similar effect. At the time the C) validating legislation was introduced and passed there were a number of reserved decisions in both the Supreme and District Courts in which the point had been taken. If those reserved judgments were not excepted from the operation of the legislation it would have created significant consequences so far as offers to settle made by either side were concerned. There was thus very good reason, indeed it was manifestly just, for the legislature to exempt from the operation of the retrospective -- 19 of 24 -- 19 legislation those cases which had either been decided or argued with judgment· reserved prior to the date of commencement. Sub-section (3) clearly covers those situations, and the operation of the exception should not be extended beyond them; there is nothing in the wording of the sub-section which necessitates it being given a wider scope of operation. It is, in my view, of significance that the date of commencement was some two months prior to the date of assent. Given the drafting ( 1 of the whole of s. 4 the legislation does not indicate an intention that all instances where litigation had been formally commenced should be excepted from the consequences of the retrospectivity of the legislation; indeed, in my view, such a construction of para. (b) would be contrary to the general intent evidenced by s. 4(1). It follows that in my view this case is not caught by the exception found ins. 4(3)(b) of the Act, and the consequence of that is that the plaintiff is liable to pay the charges demanded. Once that stage is reached there is no doubt that the plaintiff is entitled to recover the $2,700.00 from the defendant as part \ J of special damages. The first head under which damages must be assessed is that for pain and suffering and loss of amenities. The plaintiff was aged nearly 51 at the date of the accident and is now aged 53. He had reached the stage in life immediately before the accident when he was commencing to "wind down" towards retirement. He was looking forward to spending time with his wife in the area of northern New South Wales they had chosen for their retirement years. The change in personality has been significant and has -- 20 of 24 -- ----- ---- 20 caused the plaintiff a great deal of distress. His lack of memory and inability to concentrate has to marked extent affected his capacity to enjoy life, though it must be remembered that he still flies ultra-light aircraft for recreation. There will always be some residual brain damage present for the rest of theplaintiff's life and that cannot be ignored when evaluating damages under this head. I also allow for the orthopaedic injuries though, for the reasons given above, they do not call for any great award. I was referred to a number of decisions where an assessment had been made under this head for a brain damaged person, but I do not find any of the decisions citedstrictly comparable. Taking everything I have said in these reasons into account I assess damages for pain and suffering and loss of amenities in the sum of $40,000.00. It was agreed that I should allow interest at the rate of two per cent per annum for a period of 2.5 years on a portion of the damages awarded under that head. I allow interest on one-half of the sum awarded. I therefore include interest of $1,000.00 in the assessment. The evidence placed before me (particularly exs. 24 and 16) establishes a net loss to date of trial of $46,190.00, on the assumption that the plaintiff would have continued working with Wilson throughout that period but for the accident. On the balance of probability I find that he would have done so. He was competent at the work, enjoyed it, and apparently had a good relationship with Wilson prior to the accident. The job would clearly have been available to him throughout the period if he wished to work, and I find that he ·would have done so. I 0 0 0 -- 21 of 24 -- 21 therefore assess economic loss to date of trial in the sum of $46,190.00. During that period the plaintiff has received $29,607.00 by way of invalid pension, and that sum must be brought into account in determining on what part of the award for post economic loss I should allow interest. In the circumstances I allow interest on the balance, namely $16,583.00 at five per cent per annum for a period of 2.5 years; that is the sum of $2,072.00. For the reasons given above I allow special damages in the full amount of $5,000.00. The plaintiff has paid $2,300.00 of that sum and I allow interest on the amount actually paid at the rate of five per cent for a period of 2.5 years giving a total of $287.50. I have already indicated above that in my view future economic loss should be assessed on the basis of a loss of two-thirds of the plaintiff's pre-accident earning capacity over a ten year period. He was earning $335. 00 net per week immediately prior to the accident and therefore his loss is measured by the present value of $223.00 per week for the next ten years. Using the five per cent discount table one arrives at the present value for that loss at the sum of $92,099.00. Finally I must address the plaintiff's claim under the Griffiths v. Kerkemeyer head. The defendant did not seriously challenge a claim for the first six weeks after the plaintiff's discharge from hospital based on two hours each day. Using the $9.00 per hour agreed rate that gives the amount of $756.00 for that period. -- 22 of 24 -- --- -~--- 22 In the balance of the pre-trial period the extent of the wife's services has not been·all that great, particularly when one disregards those services which are an ordinary incident of matrimonial life. But particularly because of the plaintiff's memory difficulties, and his anger and frustration associated therewith, his wife has had to perform some limited services over and above the normal incidents of matrimonial life throughout that period. It is difficult to quantify what she has done but on the evidence I find that over the last two years such services have been rendered on an average of ten hours per week. Again adopting the agreed rate of $9.00 per hour that claim is quantified at $9,360.00. There are many uncertainties so far as the future is concerned with respect to the claim under this head. As pointed out above the marriage is under great strain and there is clearly no certainty that it will continue for long into the future. The extent to which the marriage lasts will to a large extent be dependent upon the improvement in the plaintiff's overall condition c·onsequent upon his receiving treatment for the psychiatric aspect of his present condition. If there is marked improvement in that regard the need for his wife to perform services on such a regular basis will be significantly diminished. Further, if the improvement in his condition is such that the plaintiff can undertake, and can find, some remunerative employment then again the need for such services will be decreased. So far as the future is concerned, doing the best I can on the evidence, I allow a claim on the basis of one hour per 0 0 C) 0 -- 23 of 24 -- 23 day for the next three years; again using the five per cent discount table the present value of that loss is $9,118.00. The plaintiff claims interest on the award for past services under the Griffiths v. Kerkemeyer head at the rate of two per cent per annum. In the circumstances it is reasonable to allow that claim, which comes to $505.00. My assessment can therefore be summarised as follows: Pain and suffering·and loss of amenities Past economic loss Special damages Future economic loss Griffiths v. Kerkemeyer claim Total interest The first plaintiff is therefore entitled to $ 40,000.00 $ 46,190.00 $ 5,000.00 $ 92,099.50 $ 19,314.00 $ 3,864.50 $206,467.50 judgment for $206,467.50, and both plaintiffs are entitled to an order for costs. -- 24 of 24 --