Draper v KR Darling Downs Co-operative Bacon Association Ltd [1990] QSC 462

10 20 30 40 50 60 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION No. 35 of 1988 BEFORE MR. JUSTICE COOPER •-.------....c•--.-..~--... ~---- TOOWOOMBA, 12 DECEMBER 1990 ! RE\/12EO CCP!.i.~S ISSUED j I C '~ .. t } 01-;r: ~e~:~:;rnng EL:ieau ! BETWEEN: 1 Dale,, y· I ( / 0' / I L.~,~~---··---- __,_L__j (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) PAUL LESLEY DRAPER -and- K.R. DARLING DOWNS CO-OPERATIVE BACON ASSOCIATION LTD. JUDGMENT Plaintiff Defendant HIS HONOUR: The plaintiff is a married man with two children. On 3 November 1987 he was employed by the defendant. He was then 23 years of age. He was employed as an operator of a mincing machine at the defendant's meat- works at Willowburn, Toowoomba. He had been engaged in those activities for approximately 18 months. The plaintiff's work function was to obtain trays of meat which had been cut into chunks or blocks from where they were stored in the "~ellar", to bring the meat to the mincer and then place the meat in the mincer using a bucket or by hand. The meat was often chilled or frozen. If frozen, it was thawed or at least partially thawed before it was minced. The cellar is a chilled area. In consequence employees wear rubber gloves and use cotton inner gloves. · .Govt. Printer. Old. 1 10 20 30 40 50 60 -- 1 of 20 -- 10 20 30 The gloves are to keep the hands dry and warm. On 3 November 1987 the mincing machine was not fitted with any guard, nor was the operator provided with any implement to work the meat in the bowl of the mincer to force it through the mouth at the base of the bowl onto the worm drive which carries the meat to the blades. The machine had been in this condition throughout the period of the plaintiff's employment. The defendant did not operate any formal system of training operators of the mincing machine. Employees received either some oral instruction from a foreman or supervisor or were placed with an experienced worker to watch what he did in operating the machine. Employees thus learned according to the practice which existed from time to time in the mincing room. The mincing machine was not without operational problems. If meat was cut too large or partially frozen, it would either jam in the mouth of the bowl or move against the worm but would not be taken up. In consequence, the 10 20 30 40 40 50 60 employees developed their own system to free the machine. They would press down on the meat using their hands. If this did not work, they would insert their hands into the meat to lift it and move it in the bowl so that it would loosen and fall onto the worm. If necessary, they would remove by hand the frozen material which the worm would not accept or pull out any piece of meat which was impeding the flow through the mouth of the worm. Ordinarily, the power to the machine would not be switched off during this procedure, the logic being that as soon as the meat was freed up the . -Govt. Printer, Old. 2 50 60 -- 2 of 20 -- 10 20 30 40 50 60 flow of meat onto the worm would recommence. I find this practice was of long standing. I accept the evidence of the plaintiff, Rattray and Finnie in this regard. The evidence of Kuhnemann, Peckett and Addley is not inconsistent with this finding. On their evidence alone it was common practice for employees to place their hands in the bowl of the mincer to a greater or lesser degree to work the meat. The working of the meat in the bowl by hand with the attendant risk of the hand or a glove being caught in meat and the worm was a dangerous practice. I find that the defendant gave no instructions to its employees as to safe procedures to deal with clogging of the machine or the refusal of the machine to accept frozen or over-sized meat. I find that the defendant gave no instructions to its employees not to place their hands in the bowl of the mincer in order to use them to free the meat. It is unnecessary to make a positive finding that the defendant knew of the practice; I consider probably that it did. If it did not then its system of inspection and supervision of its employees' performance of their work tasks was totally inadequate. On 3 November 1987, while pressing the meat down into 10 20 30 40 the mouth of the bowl, the fingers of the glove on the plaintiff's right hand became caught by the worm. The plaintif , in pressing meat down with his hand, was doing what was the common practice of the defendant's employees. The plaintiff could not remove his arm. He could not stop the machine because the &op button was so positioned that the plaintiff could not reach it. The plaintiff had his right arm below the elbow removed by traumatic amputation by the time Finnie had stopped the machine. 3 50 60 -- 3 of 20 -- 10 20 30 40 50 60 In consequence of the plaintiff's injury, the defendant set about on the afternoon of 3 November 1987 to render the mincing machine safe. A metal guard and chute were attached to the machine and the machine was fitted with a plunger to enable meat to be pressed down without the operators using their hands. An implement was provided to free up meat at the mouth and the implement was attached to the machine. I make the following findings:- (1) That the worm of the machine was dangerous and was neither guarded nor fenced so as to ensure the safe operation of the machine; (2) The defendant breached its duty under ( 3) s.21 (1) of the Inspection of Machinery Act 1951 to guard and/or fence the worm of the machine; The defendant was negligent in that it failed:- (a) To devise and implement any system for safe operation of the mincing machine; (b) To instruct its employees as to the safe operation of the mincing machine; (c) To provide a plunger or like implement for use in freeing meat in the bowl or pressing meat onto the worm; (d) To place the stop button in such a position in relation to the mincer that the operator could immediately stop the machine when operating it from either side; (e) To properly supervise and instruct the employees engaged in operating the mincer · -Govt. Printer, Qld. 4 10 20 30 40 50 60 -- 4 of 20 -- 10 20 30 40 so 60 so as to detect dangerous work practices in inserting hands into the bowl of the machine while the worm was operating and to enforce safe work practices. (4) It was reasonably foreseeable that an employee placing his hands in the bowl to press meat onto the worm or to free up meat which had jammed, would be injured in the way the plaintiff was injured, suffering the type of injury he in fact suffered. It follows that I reject the defendant's position as taken on the pleadings that it was not negligent nor in breach of its statutory duty. The question then is should the plaintiff be found guilty of contributory negligence. The defendant submits that to place one's hand in close proximity of the operating worm is obviously dangerous and that a reasonable employee hav~ng regard for his own safety would not place his hand in a position of obvious danger. It was further submitted that the plaintiff was talking to Finnie at the time his injury occurred and that it was inattention to the work task that led to his hand being trapped. In support of these contentions the defendant relied heavily on the evidence of Addley. As a result of what occurred on 3 November 1987, Addley is now suffering from a major depressive disorder and has been invalided out. It is apparent, looking at him and hearing him give his evidence, that he is not a well man. I am not satisfied that Addley told the plaintiff not to put his hands near the base of the bowl. Addley himself had -Govt. Printer, Old. 5 10 20 30 40 50 60 -- 5 of 20 -- been spoken to for putting his hands towards the bottom of the bowl. He says that in consequence as a foreman he told all new employees not to adopt this dangerous practice. He conceded, however, that he and others would press down the meat or move it around by placing hands in the bowl to about 10 10 20 30 half of its depth. I am satisfied that Addley did not tell the plaintiff that he could or should place his hands at the bottom of the bowl in the vicinity of the mouth. The evidence of other workers given before me does not support Addley's version that he gave a positive warning and instructio to all employees not to place hands at the bottom of the bowl. I accept the evidence of Addley that the plaintiff and Finnie were talking. They did not deny this. They asseri the subject matter of their discussion was work related althoug they give different subject matters discussed. Addley does not know what they were talking about. Addley says that he saw the plaintiff place some meat in the mincer while talking to Finnie. He said the meat had passed through the mincer when he saw the plaintiff leaning against the bowl with his right elbow leaning on the lip. Addley turned away, 20 30 40 40 50 on his evidence, to perform a task elsewhere in the mincing room and did not observe the plaintiff and Finnie again until he heard the plaintiff cry out. Addley was not observing the plaintiff at the time he was injured. There is no evidence to support a finding that the plaintiff was talking to Finnie and feeding meat into the mincer at the time he was injured. It is unnecessary that I make any finding as to whether Addley was in the mincing room throughout. He says he was. The plaintiff and Finnie say he wasn't. Kuhnemann did not 50 w w ~ ... ,-4 n.·-~-- ,..,., 6 -- 6 of 20 -- 10 20 30 40 50 60 see him in the mincing room. Nothing in my view turns on whether or not he was present. It is possible in the immediate traumatic aftermath of the injury that nobody was particularly conscious of Addley's presence or movements. There is clearly some bad blood between Finnie and Addley and I do not necessarily accept Finnie's evidence as to the presence or otherwise of Addley in the mincing room. I find that the plaintiff had been talking to Finnie some short time before he was injured. However, I find that the plaintiff had finished talking to Finnie and was engaged in undertaking his work when he was injured. The plaintiff was performing the task of mincing in the way that he had seen others perform the task. It was a method used over the time he was engaged on the mincing machine. He was not instructed to do the work in any other way, nor was he positively instructed not to do the work in the manner in which he did. Nobody has suggested in evidence that there was anything wrong with pressing the meat down with the hands. On the defendant's side, it was only a question of degree as to how far the hands ought to be placed into the bowl. An employer cannot assert that any employee is responsible either wholly or in part for his injury where the employee adopts the unsafe work practices which the employer allows to be carried on in its works or where the employee devises and is allowed to continue to use his own unsafe practices in the absence of any safe system of work implemented and enforced by the employer. The fact that the plaintiff had for a considerable period of time done the work in a particular way without injury -Govt. Printer, Old. 7 10 20 30 40 50 60 -- 7 of 20 -- 10 20 30 40 50 60 dulls the realisation of the risk inherent in it and increases the risk of momentary inadvertence or inattention which leads to injury. With hindsight most employees who have been injured will see that what they did was dangerous. However, at the time,because of the conditions and practices which existed in the workplace, they did not have a conscious realisation of the danger and objectively they could not reasonably be expected to have such a refined appreciation of the risk. In the circumstances of this case, I find that the plaintiff was not guilty of contributory negligence. The plaintiff before his injxy was right-handed. He now has a 75 per cent disability of the right upper limb as a whole. Prior to the injury he was an active sportsman and an outgoing personality. Although there was no pain associated with the actual amputation, once in hospital under- going treatment the pain was excruciating. The plaintiff was in hospital for some time. Upon discharge he had a stump which required bathing and bandaging to prepare the stump for a prosthesis. There has been and will continue to be ongoing pain in the stump. The plaintiff has had two prostheses fitted to the stump. He has had difficulty with both of them. As the stump has shrunk the prosthesis has become ill-fitting and unstable. Additionally, it has caused pain to the stump. This is particularly so as neuromas have developed at the end of the stump. To touch a neuroma causes excruciating pain on the evidence of Dr. Meibusch, the orthopaedic surgeon. The plaintiff has undergone two operations to remove neuromas and isolate the nerve ends. Dr. Meibusch gives the last operation a 50 per cent chance of success. Dr. Meibusch is of the opinion that the plaintff -Govt. Printer, Qfd_ 8 10 20 30 40 50 60 -- 8 of 20 -- 10 20 30 50 60 has a rotator cuff syndrome in the right shoulder caused by his violent pulling back to free his arm from the mincer. The shoulder continues to cause the plaintiff pain. In or about August 1987 the plaintiff, while at work, slipped from a ladder and struck his shoulder on a bin. The injury was significant and kept him off work for about seven weeks. The injury appears to be nerve related and caused swelling and pain in the right forearm. The injury had not fully resolved by 3 November 1987. I am satisfied that the plaintiff freshly injured his shoulder attempting to free his arm from the mincer and that the pain in the shoulder which he presently experiences is related to the second and not the earlier injury. The plaintiff has undergone six operations on the stump. Prior to the accident the plaintiff was an outgoing personality. He was an active sportsman playing touch football, rugby league and enjoyed fishing. He had a good relationship with his wife and child and was handy around the home. withdrawn. Since the accident the plaintiff has become He has lost his self esteem and will not socialise as he did before. He suffers from bouts of depression, is short tempered with his wife and children and is embarrassed by the stump. Although he again plays football and touch football, he does not play full games and the contact sport causes pain to the stump. He has difficulty baiting a hook and reeling out line. He is no longer handy around the house. He continues to have significant pain in the stump and shoulder. He gets pain in the left shoulder through over-use fatigue of the left arm. Heavy lifting and work · -Govt Printer, Qld. 9 10 20 30 40 50 60 -- 9 of 20 -- JO exacerbates the pain. A video shows him performing tasks around the home. Although he has adapted well it is obvious that the loss of one arm has greatly affected his ability to do those tasks which ordinarily require two hands, e.g. tying shoelaces, doing up buttons, cutting food, etc. So far as the evidence reveals the loss of the arm has had a devastating effect on the plaintiff's pre-accident life. Apart from the physical aspects the most important consequence has been the emotional and psychological effect 10 20 of the injury. This has intruded not only into his enjoyment of 20 the normal amenities of life but it also significantly impacts upon his future economic position. Watching the plaintiff in court he subconsciously tries to hide the stump by covering it with his hand or folding his arms across his chest and 30 leaning forward. He is very bitter towards the defendant. Evidence was tendered in the plaintiff's case from Dr. James, consultant psychiatrist, engaged by the defendant and Dr. McIntyre who was also a consultant psychiatrist. Dr. James was not cross-examined on his report as he was 40 unable to attend at the trial due to ill health. Nevertheless, his conclusions are the same as those of Dr. McIntyre. The plaintiff is suffering from a post-traumatic stress disorder. The condition is categorised by nightmares, flashbacks, inability to sleep, depression, feelings of uselessness 50 60 and bitterness. The plaintiff has been treated for depression with anti-depressant drugs. These substantially helped him but because he thought he no longer needed them he would discontinue drug use only to relapse into depression. According to Dr. McIntyre this is a common problem. The · -Oovt. Printer, Qld. 10 30 40 50 60 -- 10 of 20 -- 10 20 to stay on anti-depressant drugs is, I find, an incident of his psychiatric problems which were caused by the accident. Some drugs have recently caused unpleasant side effects and various alternative drug therapy has been employed. The plaintiff returned to work for the defendant in the stores section. He lasted three days. The jibes of workmates and flashbacks to the accident made it impossible for him to cope. He returned to work again for the defendant, first as a mechanic's offsider. He was slow in this position. He was either moved or asked to be moved to stores. From stores he asked to return to the cellar and a job was found for him there. The move to the cellar was motivated by his desire to earn more money, he being at that time at an economic disadvantage working in stores. I accept the evidenc of the plaintiff's wife that things were financially difficult 10 20 30 30 at home at that time. 40 50 60 There were also problems with employees in the stores. In retrospect this decision to return to the cellar may be seen objectively to have been unwise. However, bearin in mind the unresolved depressive disorder and the plaintiff's variation in perception by use of anti-depressant drugs, the position is explicable and was in part taken to relieve the financial burden that the original injury had imposed. Although he appears to have given an outward appearance of being content at work, the plaintiff over this period became aggressive and short tempered with his family and began to drink excessively. This may have had something to do with his failure to keep up the use of the anti-depressant drugs. The plaintiff sought an incentive position in the abbatoir, washing down pig carcasses. This would have led to more pay. Management organised such a position and told the -Govt. Printer, Qld. 11 40 50 60 -- 11 of 20 -- 10 20 30 40 so 60 plaintiff that he had the position. However, the foreman in the abbatoir refused to have the plaintiff in the team on grounds of efficiency. The plaintiff was told that he would not be getting the job in the abbatoir when he turned up to commence work in the new job. From this time the plaintiff went downhill. He became very bitter towards the defendant. His wife had difficulty getting him to get up and go to work. His record of absenteeism grew. The period of time the plaintiff spent working in the workshop or stores 10 and later in the cellar was a period where although the plainti,f 20 appears to have completed the tasks allocated to him, albeit slowly, he did so at substantial personal pain to himself. The pain generated by the work intruded into his private life. At times the stump would swell up and go purple. 30 In May 1990 the plaintiff went onto sickness benefits·.: I accept his evidence that he got to the stage where he simply could not cope. The environment where his injury had occurred evoked flashbacks and nightmares and compounded his 40 psychological problems. He tendered his resignation in September 1990. He has not worked since as he has had to undergo a series of operations to attempt to deal with the problems of neuromas on the stump. 50 The defendant says that there is employment for the plaintiff in its works in some capacity where he will not have to come into contact with mincing machines or the cellar. The plaintiff will not return to work for the defendant. He 60 •Govt. PrintAr, Olrl. 12 -- 12 of 20 -- says he cannot cope with working for the defendant, that he will not put his wife and children through the torment of his depression again, and, finally, that the bitterness he feels to the defendant is too strong to allow him to return. 10 The defendant contends as the plaintiff is voluntarily 20 30 40 50 60 refusing to take available employment, he is not entitled to be compensated or substantially compensated for future economic loss. The question is, in my view, not so simple. Is the plaintiff acting reasonably in refusing to return to work to the defendant's premises? The balance of the psychiatric and psychological evidence which I accept says that he should not return. Dr. James in his report of 20 August 1990 to Messrs Clewett Corser and Drummond, Exhibit 26, expresses the following opinion: "I do not think it would be in the interest of Mr. Draper's mental health for him to return to work at the bacon factory where he sustained the injury of traumatic amputation of his right forearm. He will be reminded about the accident if he is working at that factory or even working at any similar factory where there are meat mincing machines. It is inevitable that he would feel resentful towards the employer and I think it is probably inevitable that the employer would feel embarrassedby the presence of Mr. Draper at the factorybecause Mr. Draper's presence would remind other workmen of the hazards of the employment. Mr. Draper should look for work in other factory situations not involving the meat industry, althoughhe realises that employment will be difficult to obtain in view of his lack of work skills and his 13 10 20 30 40 50 60 -- 13 of 20 -- 10 20 30 40 50 60 It is a logical decision for Paul Draper to decide not to return to work at the bacon factory. I do not think his degree of psychiatric disability is so severe as to prevent him from returning to the bacon factory if he had a strong motivation to do so, but as he has logically decided that he does not want to work there, this means that if he was forced to return to work at the bacon factory, even for the expediency of getting work, there would probably be a reactivation of his post- traumatic stress disorder which would therefore become a chronic condition and cause a mild to moderate permanent psychiatric disability. The best chance for Draper to recover completely from the post-traumatic stress disorder would be for him to seek employment in some situation which did not constantly remind him of the type of work he was doing at the time of the injury." Dr. McIntyre, in his report of 3 December 1990 to Messrs Shine Murdoch, Exhibit 22, concludes: "At interview today he looked<gloomy and his overall presentation was in keeping with a depressive episode. He has now resumed active psychiatric and clinical psychological treatment of a depressive illness which appears to have been precipitated by further repeated surgical interventions for the chronic pain and abnormal sensation he has experienced in his right arm stump. Surgery has of course evoked memories of his original 1987 accident and in the course of his present depression an earlier feature of his post-traumatic stress disorder has returned, namely unpleasant nightmares of the accident. It remains my opinion that he is likely to have future recurrent depressive episodes and will be permanently unfit to resume his earlier work at the Bacon Factory although he should be able to take up alternative employment once his present depression has been effectively treated." Mr. Michael Fox, clinical psychologist, in his report of 3 December 1990 to Messrs Shine Murdoch, Exhibit 27, concludes: Mr. Draper's life has been significantly changed by the physical limitations imposed upon him as a result of the injuries sustained from the accident on 03/11/1987. Prior to the accident he was an action oriented individual at work, in recreational pursuits, and in socializationa::tivities. He has been abruptly left with a void. ·,..tPr Qld 14 10 20 30 40 50 60 -- 14 of 20 -- 10 20 30 40 50 60 He questions his ability to provide for and to support his family. His forced dependence on others both frustrates and angers him. He is concerned about his inability to control moods which too frustrates him and exacerbates the problem. He lives in chronic pain. His inability to provide what he considers to be the appropriate role of father and productive family member within the home weighs upon him. His self-consciousness about his disfigurement, poor self-esteem and self-confidence have resulted in a self-imposed isolation from further friends and social gatherings. His ability to have a productive and happy life has decreased as a result of the accident and his limited adjustment to it. OPINION/CONCLUSIONS: Mr. Draper is currently experiencing a post-traumatic stress disorder and reactive depression as a result of injuries sustained as a result of the accident on 03/11/1987. The significant changes in his life, the void currently experienced, and future uncertainty have contributed to his depressed state. Although it has been approximately two years since the accident, Mr. Draper is still in a transient state regarding the amount of physical recovery he can achieve, as well as his eventual financial situation. Given time, if his physical condition stabilizes, Mr. Draper could learn to adjust to his physical limitations. However, unless the void he is experiencing is filled, and his need to feel productive is once again realized, the depression he is experiencing may well intensify. The post-traumatic stress disorder may diminish with time particularly as he becomes farther removed from the place of accident. Although warranted, I do not believe that Mr. Draper would be a good candidate for therapeutic psychological intervention." Dr. McIntyre, although conceding the possibility of a trial working at the defendant's works was extremely pessimistic as to the outcome. If the trial did not work it would exacerbate the plaintiff's psychiatric problems. There was no contrary expert evidence. I am not persuaded that the experts' opinions are misconceived or based on any false underlying premises. As I said earlier, I accept them. I find on the balance of probabilities that to return to work with the defendant would cause the plaintiff's emotional problems to become chronic. I find that even if • -Govt. Printer, Old. 15 10 20 30 40 50 60 -- 15 of 20 -- 10 20 30 40 50 60 the plaintiff returned, the probabilities are that he would not remain in employment with the defendant for any significant period of time. I find that the plaintiff's best interests are served by attempting to place him in alternative employment. This is not to suggest that the defendant's offer is anything other than genuine and sincerely made in the best interests of the plaintiff. The plaintiff's future, if he does not overcome the emotional problems, is not bright either from a work perspective or from a quality of life point of view. He was educated to Grade 9, he has no particular trade skills and was previously limited to labouring or unskilled pursuits. His disability has closed many employment avenues. In times of economic downturn he is at a real disadvantage on the labour market. The plaintiff has satisfied me that he has lost his pre-accident earning capacity and that his attempts to return to the work force in the various positions provided by the defendant are at this time beyond his capacity except at an unreasonable personal cost to himself with pain and emotional distress. The condition of the plaintiff's stump and his present depressive disorder have, I find, precluded him from gaining any alternative employment since he went on sickness benefits in May 1990. The defendant has sought to show that there is alternative work available with it. For reasons I have given above I find that the plaintiff is acting reasonably in declining such employment. I should add, putting aside the plaintiff's emotional problems, the defendant has not proved to my satisfaction that the available jobs are within the plaintiff's capacity or are •Govt Printn--. Old. 16 10 20 30 40 50 60 -- 16 of 20 -- , I 10 20 30 40 50 60 capable of being performed by him without an unacceptable level of pain and fatigue. If the recent operation for the removal of neuromas is not a complete success, the defendan has failed to satisfy me that the plaintiff can engage in any manual work which requires the use of the stump without excruciating pain. I find that the plaintiff has suffered a substantial impariment of his earning capacity although he has some residual capacity. I find that if he had not been injured he had good prospects of advancement to the position of a foreman or supervisor in the defendant's works. He vas well thougltof as a worker by his immediate superiors. There was the possibility of transfer to an incentive position on the pig kill floor but I cannot be satisfied it would ever be more than a possibility. There is no evidence which suggests any immediate prospect of gainful employment for the plaintiff. In the normal course of events the plaintiff would have worked to age 60 or thereabouts. He is now aged 26. I have had the advantage of the calculations in Exhibit 45, the report of Mr. Maynes, an accountant. That exhibit assumed the plaintiff will not work again. It deals with future economic loss and future superannuation loss. The net loss per week in the report, excluding superannuation loss, is assumed to be $315 net per week based on current base salaries. Doing the best I can in taking into account the posstbility of some future employment including casual future employment and taking into account the plaintiff's prospects for promotion and transfer, I assess the plaintiff's loss of earning capacity at $250 per week. That is, on balance he will earn approximately 20 per cent of his pre- -Govt. Printer, Old, 17 10 20 30 40 50 60 -- 17 of 20 -- I, 10 20 30 40 50 60 accident wage over the balance of his working life. On the five per cent tables the present value of $250 per week for 34 years is $220,500. The future superannua ion loss from Exhibit 45 to age 60 is $8,662. I will allow $6,000. Discounting for the normal contingencies of life and taking into account the plaintiff's condition of pneumothorax and the incidence of injury that goes with working in an abbatoir or like situation, I consider that $200,000 is a proper award for future economic loss and loss of future superannuation. Past economic loss in accordance with Schedule 2 of Exhibit 45 is $24,962. Allowing some small discount for the normal contingencies of life and the fact that the plaintiff had some lingering problem in the forearm and the possibility of further minor work injury causing time off work, I assess $23,000 as an appropriate sum for past economic loss. The plaintiff's wife has provided services to the plaintiff to satisfy a need created by the defendantis negligence and breach of duty. The services provided went beyond those normally provided by a wife to her husband during periods of temporary illness. The services provided therefore fall within the Griffiths and Kirkemeyer principle. The majority of the services were provided in the year to 18 months after the injury. I assess the compensation under this head for past services provided by the wife at $3,000. The plaintiff's brother provided assistance as appears from the schedule, Exhibit 44. I am satisfied that some of this assistance would have been given in any event. • •Govt. PrintP.r Old. 18 10 20 30 40 50 60 -- 18 of 20 -- 10 20 30 40 50 60 Nevertheless, the brother fulfilled a need created by the accident which would have had to have been supplied at cost to the plaintiff. In respect to the provisions of past services provided by the plaintiff's brother, I assess compensation in the sum of $1,000 being 100 hours at $10 an hour. The plaintiff will have some need for future assistance and certain aids have been identified in the report of the occupational therapist which would assist the plaintiff. In respect of both heads, that is the future assistance and future aids, I award the one sum of $5,000. I award the plaintiff's damages as follows: 1. Pain and suffering and loss of amenities. 2. Interest at 6 per cent at $25,000 for the past pain and suffering for two years until the lump sum payment of disability payment was made - I award $3,000. 3. Past economic loss. 4. Int~rest on $6,000 of past economic loss at 6 per cent for two years, after allowing for Workers' Compensation weekly payments made during the period. 5. Past superannuation loss, say $200. $ 80,000.00 $ 3,000.00 $ 23,000.00 $ $ 720.00 200.00 6. Future economic loss and superannuation.$200,000.00 7. (a) Past Griffiths v. Kirkemeyer (wife) . (b) Past Griffiths v. Kirkemeyer (brother) . 8. Interest on past Griffiths v. Kirkemeyer $ 3,000.00 $ 1,000.00 at 6 per cent for three years. $ 720.00 9. Specials (a) As per Exhibit 41. (b) Fox v. Wood payment. (c) Travelling. 19 $ 6,216.86 $ 2,074.61 $ 1,500.00 10 20 30 40 50 60 -- 19 of 20 -- ( 10 20 30 40 so 60 10. Future prosthesis. 11. Future aids and future Griffiths v. Kirkemeyer. SUB TOTAL Less payments required to be .made to Workers' Compensation. TOTAL $ 16,000.00 $ 5,000.00 $342,431.47 - $ 54,793.82 $287,637.65 Subject to any arithmetic error, there will be judgment for the plaintiff against the defendant in the sum of $287,637.65 together with costs including reserved costs, if any, of the action to be taxed. i '! I • -Govt. Printer, Old. 20 < 1 10 20 30 40 50 60 -- 20 of 20 --