Carrie v Richards [1990] QSC 158

10 20 30 40 50 60 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BEFORE MR. JUSTICE MACKENZIE i x 90/1 s- 0 ~.Ll- ..J 2-,; 5 / 1 0 No. 221 of 1985 -· 'J/_' -. j • •• ~~ :·:~:0~~-=~:·:·.; ~1:~r~tu BRISBANE, 21 MAY 1990 L.-=~~::'_)., __ ~G.-~~/ClQ_,__J (Copyright in this transcript is vested in 10 the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: LESLIE CARRIE -and- ERNEST WILLIAM RICHARDS JUDGMENT Plaintiff Defendant HIS HONOUR: I order that the action be dismissed. The plaintiff is ordered to pay the defendant's costs of the action to be taxed. I will include any reserved costs in that regard. I publish my reasons. •Govt. Printer, Qld. 1 20 30 40 50 60 -- 1 of 26 -- IN THE SUPREME COURT OF QUEENSLAND No. 221 of 1985 Before Mr. Justice Mackenzie BETWEEN: AND: CATCHWORDS: Counsel: Solicitors: LESLEY CARRIE Plaintiff ERNEST WILLIAM RICHARDS Defendant JUDGMENT - MACKENZIE J. Delivered the 21st day of May, 1990. S.C. Williams Q.C. and L.T. Barnes for plaintiff K.F. Boulton for defendant McCullough & Robertson for plaintiff Roberts & Kane for defendant Hearing dates: 1, 2 and 5 March, 1990. -- 2 of 26 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: LESLEY CARRIE ERNEST WILLIAM RICHARDS JUDGMENT - MACKENZIE J. No. 221 of 1985 Plaintiff Defendant Delivered the 21st day of May, 1990. On 11th February, 1982 at about 7.30 p.m. the plaintiff was driving a motor vehicle with her husband as a passenger along Old Cleveland Road, Chandler. Mrs. Carrie was at that time a Plain Clothes Senior Constable attached to the Licensing Branch. Mr. Carrie was a Plain Clothes Constable at the Brisbane Criminal Investigation Branch. ended in divorce. Since the accident, their marriage has Mrs. Carrie had to work overtime that day and finished work just before 7.00 p.m. Her husband had finished work at 4.00 p.m. and had filled in time while waiting for her at the Transcontinental Hotel. He said that he was drinking seven ounce beers while he was there. When asked about his state of sobriety he said: "I had had enough to drink but I wasn't going to drive and that was the way it was at that stage". However he said that he had a clear recollection of relevant events. The incident in which Mrs. Carrie was injured involved her motor vehicle turning over while she was passing a back hoe -- 3 of 26 -- 2 driven by the defendant. Mr. Carrie said that as his wife was approaching the place where the incident happened she was driving her vehicle in the left-hand lane. He said that as it travelled around a sweeping left-hand bend he saw the back hoe about three or four hundred metres ahead. It was travelling within the left-hand lane and travelling considerably slower than their vehicle. He said it was lit with tail lights on the mudguards. He said that about 100 to 200 feet from the back hoe his wife changed lanes in a normal fashion without swerving or any violent change of direction. The back hoe was not pitching in any abnormal way as they approached it. When they were about 20 feet from it he said that the back hoe "swerved violently" into the centre lane without warning. He described what happened in the following terms:- "When she was only a matter of feet from the rear of the back hoe, it sort of swerved violently and he steered into the centre lane. She swerved to miss the back hoe and as she swerved, the two driver' s side tyres of the vehicle had gone on to the gravel which was on the shoulder of the right-hand side, the vehicle has lost control and it's ended up rolling and finished up on the other side of the carriageway on top of that Oleander." The front part of the back hoe had come into the lane in which the Carries' vehicle was travelling by about three to four feet as they were beside it. He said that he had seen nothing that would cause the vehicle to veer to the right. Mr. Carrie suffered only minor injuries consisting of abrasions to his arm and a damaged shoulder which was put in a sling for a couple of days after which it "went 'crack' and it came good". -- 4 of 26 -- 3 After the incident the back hoe stopped at the scene and after some time drove off. Mr. Carrie took its number which he says he passed on to the investigating police when they arrived some time later. He thought that he gave a version of the incident to the police officers at the scene but never gave a statement in writing. He was asked about his conduct at the scene after the incident and he gave the following account:- "After the accident did you attempt to locate this person that had so - well, apparently driven so dangerously to you and your wife?-- At that point I think I was more worried about the fact she was injured and so was I. Did you attempt to locate this person?-- That is how I got the registered number of the back hoe. You didn't attempt to locate the driver of the back hoe?-- No. No?-- That's right. Didn't go to him and say, 'Why did you drive like that?'?-- No. Nothing like that?-- No. You hadn't come in contact with the back hoe, had you?-- No. You knew that?-- Yes. You, as a police officer, I suggest, must have realised that it was important to identify the person who was driving the back hoe?-- Again, yes. You weren't badly injured?-- No. And how long did you stay at the scene?-- Till I left in the ambulance. You saw, did you, the driver of the back hoe get onto the back hoe and drive off?-- Yes. You didn't at any stage attempt to ask him for hisname?-- No. -- 5 of 26 -- 4 You didn't at any stage complain about this conduct which only a short time before had threatened your life and your wife's life?-- At the scene, to the driver? To the driver?-- No. BY HIS HONOUR: Were there other police in attendance at the scene by the time you left in the ambulance?- -Yes, there was. BY MR. BOULTON: Were there other police there by the time the back hoe driver left?-- No, there were not. You let him go?-- There was very little I could do to stop him. You could have arrested him on a charge of dangerous driving, couldn't you?-- I would hardly think it would be the situation I should take at that point, no. You could have, undesirable. couldn't you?-- Yes highly The behaviour of the back hoe, on your version, was highly dangerous, wasn't it?-- It was, but other things I heard on that evening at the scene, I am certain it would not have been a dangerous driving case. So you, as you said, didn't attempt to say anything to the driver or to accuse him of being in any way responsible for the accident that had occurred?-- No, I wasn't investigating the accident." He was asked whether he recalled his wife saying over and over while she was still in the motor vehicle "I'm sorry, I'm sorry" and he denied it. Mrs. Carrie gave evidence that she had picked up her husband after she had finished her shift. As they were driving home to Victoria Point she saw the back hoe which was lit when she was "quite a few hundred feet from it". She was driving at about 80 k.p.h., the speed limit. It was travelling within the left-hand lane. She said that when she was about 100 metres behind it she put her indicator on and changed lanes and positioned the vehicle in the right-hand lane. When she was 25 -- 6 of 26 -- 5 to 30 feet from the back hoe it moved partially into the right-hand lane. She said that she veered to the right and blasted her horn without taking her hands off the wheel. She said that her driver's side wheels went onto the gravel, the vehicle fish-tailed and then overturned. She said that the back hoe's tyres were about a third of its width over the white line dividing the two lanes. She was asked about the motion of the back hoe before the collision in the following passage:- "Prior to the movement of the back hoe to its right did you notice anything unusual about the stability ofthe back hoe as it moved down the road?-- It was just bobbing down the road. You say bobbing. Could you describe that in a little detail?-- It wasn't uncontrollable like some of them ..... have seen on building sites. It wasn't uncontrollable was like a little duck bob. Bouncing, was it?-- Yes." In cross-examination she said the following:- "BY MR. BOULTON: Is this the situation that it wasn'.t that the back hoe so that the front of it came across into your lane; did it in fact move out so that the whole vehicle, or at least part of the whole length of the vehicle moved into your lane?-- It bobbed. What do you mean by, 'bobbed'?-- It straight over like a car and it uncontrollably. It just bobbed over." never drove didn't go Even allowing for the inevitable differences in perception of people watching a road incident it is not easy to reconcile this account with that of Mr. Carrie who described the motion of the back hoe as a violent swerve. An inconsistency was also drawn to Mrs. Carrie' s notice between her evidence and her answers to interrogatories as to where she had changed lanes. She admitted that she had said in the answers to interrogatories that she had changed lanes 500 metres behind the back hoe. She -- 7 of 26 -- 6 said in her evidence that 100 metres was what she had in her memory. It will be recalled that Mr. Carrie estimated the distance as 100 to 200 feet. In her evidence she said that there was a continuous white line down the edge of the road. She said that the back hoe was travelling within the left-hand lane of the two outbound lanes. In her answers to interrogatories she said that there was no white line down the edge of the road. She suggested that this apparently incorrect answer might be attributable to a typographical error but as Mr. Boulton pointed out this was unlikely to be so because another answer to interrogatories was given on the basis of a negative answer to that question. The significance of the white line down the edge of the road, apart from the discrepancy between the answers to interrogatories and her present recollection, is that the defendant said that in accordance with his practice he was driving with the rear left wheel on or to the left of that line, the existence of which was established by photographic and other evidence. So far as the bobbing motion of the back hoe is concerned evidence was called from a consulting engineer, Mr. Frank William Grigg, to explain the process by which a back hoe sometimes bobs or pitches in an up and down motion from front to rear as it travels along. His evidence was primarily concerned with motion in a straight line but he said that if severe pitching coincided with an attempt to either make a steering correction or a steering manoeuvre then "the motion that ensues won't necessarily be what you expected. It may be more or less -- 8 of 26 -- 7 severe depending on the circumstances". He also said that if the wheels of the back hoe encountered an unexpected rough surface the direction of travel could also be altered. There seems to be no doubt that the back hoe was travelling up an incline at the relevant time and its speed was somewhat less than it would be had it been travelling on a level or downhill surface. The defendant who was a man of over 20 years' experience in driving back hoes said that normally on Old Cleveland Road and down hills he would drive at about 34-36 km.p.h. but that he was travelling at only about 25-28 km. p. h. on that particular part of the road. He was familiar with the road and drove along it quite often. It was suggested to him by Mr. Williams Q. C. that he may have been intending to make a right-hand turn at Tilley Road which is a short distance outbound along Old Cleveland Road and which wa~ a road by which he could get to his home but he said that he never travelled that way by back hoe. He went further on to Capalaba and turned off Old Cleveland Road there. He said that to go via Tilley Road which at some point along its distance became a two lane road instead of a four lane road was a longer route than that which he normally took. He also denied any possibility that he had hit one of the foot pedals which would have the effect of possibly causing the back hoe to swerve. He also denied losing control of it or swerving to avoid horses which another witness whom I shall mention shortly said were in the vicinity of Old Cleveland Road on the evening in question. The defendant said that the first he was aware of the plaintiff's vehicle was when he heard a loud screech of brakes -- 9 of 26 -- 8 behind him and then he saw the vehicle, as he demonstrated, just slightly ahead and beside him. He said the driver appeared to lose control and over~corrected and slid around for about 60 or 70 metres across the bitumen until the vehicle ran off the road. He said that he stopped the back hoe and went to the vehicle which had overturned. He tried with others to open the door. While Mrs~ Carrie was still in the vehicle he could hear her saying "I'm sorry" a number of times. He said that he saw Mr. Carrie walk behind the back hoe at one time. Mr. Williams Q.C. put it to Mr. Richards that that must have suggested to him that in Mr. Carrie's opinion Mr. Richards was involved in the incident. Mr. Richards said that he did not know who Mr. Carrie was at that time and he thought that he had gone behind the vehicle to check that his lights were working. He said that the tail lights on that particular model were not particularly bright and from some angles were obscured by parts of the machine, and that in his opinion one would have to be some 60 or 80 metres from the vehicle before one could see them. However the plaintiff and her husband clearly maintained that they had seen the back hoe over a considerable distance and the question of adequate lighting of the back hoe was not pleaded. It was therefore at least implicit in the defendant's case that the plaintiff had for some reason got too close to the back hoe which was being driven prudently along the road and in the course of taking action to pass it she had lost control of her vehicle. -- 10 of 26 -- 9 A police officer, Rosemary Monica Walker, went to the scene of the accident. She said she spoke to a young lad whose name she c9uld not remember by the time she gave evidence. On the police file that was produced under subpoena there was a report apparently prepared by Constable Walker recording that she had spoken to one Troy Anthony Wadley then 14 years of age who had given an account of the accident. This account was set out in the report. It was not signed by Constable Walker but a concession was made that if a police officer submitted a document in respect of an enquiry into a motor vehicle accident, in the ordinary course of events it would come to be attached to the official file relating to that accident in the records of the Police Department. Troy Anthony Wadley gave evidence that he gave a statement to a police officer but by the time he gave evidence at the trial his recollection of the accident was very limited. I admitted the statement contained on the police file as recorded by Constable Walker but left open the question of weight to be assigned to it. In his statement as recorded the witness had said that he had seen the Carries' vehicle travelling in the same lane as the back hoe and then saw it swerve into the other lane. dust. He said that he did not see it crash but he saw some He said that he then saw two horses running along the grass dividing strip in the opposite direction. In his evidence he said that he had been on the verandah waiting to watch his parents' vehicle go by. When they were going out they had to go outbound about 200 metres, according to other evidence, before they could cross the median strip to join -- 11 of 26 -- 10 the inbound lanes of Old Cleveland Road. This meant that they had to return past the residence. The witness said that his parents had gone past inbound and he was turning to walk back inside to the house when he heard a screech. He turned around and saw a cloud of dust after which he ran down the driveway where he saw the aftermath of the accident. He agreed that he would have been unable to see the lines on the roadway from where he had been on the verandah, having revisited the location recently. In all the circumstances I am not prepared to treat the evidence given by the witness Troy Anthony Wadley as having any weight on the question of the way in which the accident happened. I should also say that I disregard the suggestion that the defendant may have swerved to avoid the horses as a cause of the accident. Neither he nor the Carries have made any such claim. It is on the evidence recited above that I must decide whether the plaintiff has established on the balance of probabilities that the accident in which she was injured was caused by the negligence of the defendant. I was unable to detect anything in the way in which the defendant gave evidence that would cause me to have reservations about accepting his account as a truthful one. I have referred, as I have summarised the evidence above, to discrepancies in the evidence of the plaintiff and her husband. One other matter which, it was submitted, had a bearing on Mrs. Carrie's credibility was her failure to discover or reveal in the answers to interrogatories certain earnings from her -- 12 of 26 -- 11 employment selling Tupperware and managing others who sold it. She also omitted a very brief period when she had worked for David Jones as a security officer. I will refer to the details of her employment bel.ow in connection with past economic loss. It is sufficient for present purposes to say that only one period of employment with the distributor of Tupperware was disclosed whereas there were actually two, both of substantial duration. The explanation she gave was that she thought she had given all relevant information to her solicitors and that she must have inadvertently signed the answers to interrogatories which did not disclose the first period of employment at all. Notwithstanding Mr. Williams Q. C.' s submission that I should accept that it was merely an oversight, I have difficulty in so doing especially when it is weighed together with other discordant notes in the plaintiff's case. Reference was also made during the proceedings to the history of Mrs. Carrie's attempts to return to the police force. She was discharged as medically unfit on 12th November, 1982. Nonetheless she pursued the question of returning to the police force with considerable determination and in February 1984 she was further examined by a Government Medical Officer at Wynn um who reported that she was still medically unfit for service as a police officer. I interpolate that it was not until "late January 1984" according to Mr. Richards that he first became aware by service of a letter on him by a police officer that any claim was being made that he was responsible for the accident. The writ was -- 13 of 26 -- 12 issued on 25th January, 1985, just within the period of three years after the accident. The plaintiff made further attempts in late 1986 and early 1987 to rejoin the police force. These attempts included representations to the Commissioner of Police and the Minister for Police and the Premier of the day. The material relied on included reports from medical practitioners which supported the history which she admitted that she had given them that her neck had fully recovered and that she was pain free. She said that this history was not true. She said it was motivated by her overwhelming desire to be reinstated to the police force. I do not, for reasons set out below, treat this particular aspect of the matter as decisive of her condition or her credibility. The onus is on the plaintiff to satisfy me on the balance of probabilities that the defendant was negligent in the way he drove his back hoe on the evening in question. Mr. Boulton submitted that the probable explanation of the accident was that Mrs. Carrie had miscalculated the speed of the back hoe relative to her vehicle and, in taking sudden evasive action, had lost control of it. It was submitted to me, correctly in my view, by Mr. Williams Q. C. for the plaintiff that the matter must be looked at in its overall context. He invited me to consider the improbability that someone with Mrs. Carrie's skill as a trained police driver would lose control on a road such as Old Cleveland Road. He submitted that one of the possibilities which he put to Mr. Richards (seep. 7 above) was the likely cause of the accident. -- 14 of 26 -- 13 Nevertheless when I do look at the matter overall I am not prepared to reject the evidence of Mr. Richards. The corollary of this is that I am not persuaded by the evidence of the plaintiff and her husband that the accident happened as the result of the back hoe progressing, whether suddenly or gradually, into the right-hand lane thereby forcing Mrs. Carrie. onto the gravel and causing her to lose control. That being the case judgment must be given for the defendant. Notwithstanding this finding I should proceed to assess quantum. I am satisfied that the plaintiff was devoted to her career and intended to remain a police officer until she reached the age of retirement. I accept that her preference was not to have children notwithstanding the fact that at about the time she was discharged from th.e police force on medical grounds s.he became pregnant with her first child, which was born some five weeks premature on 28th June, 1983 and that she had a second child in 1985. Despite motherhood she clearly did not abandon hope of rejoining the police force as the history of her representations to the Department and to politicians demonstrates. She gave evidence that her single-mindedness about her police career led to the breakdown of her first marriage which had lasted for about two years from March 1975 and that her determination to return to the police force contributed to the breakdown of her second marriage, to Mr. Carrie, in February 19B8. divorced in August 1989. The evidence is that they were -- 15 of 26 -- 14 The plaintiff's medical history is that after the accident she complained of severe neck pain. She was found to have suffered a fracture of the odontoid peg. She was placed in traction on a rotor-bed. She suffered the pain and discomfort of traction and the embarrassment of being bathed and performing her bodily functions while being treated in that way. On 22nd March, 1982 she was ·provided with a four-poster neck brace and discharged on 24th March, 1982. She had to wear that brace for two to three weeks which, because of its nature, caused considerable discomfort. She had to wear a hard collar and a soft collar for about a year. The fracture healed satisfactorily but with some slight displacement. In 1982 and 1983 she was seen by Dr. John Lahz who was optimistic that she would eventually only suffer moderate disability at the most. In his report of 13th October, 1983 he said that it was more likely than not that within 12 to 18 months the pain, which was then persisting and was causing trouble with activities requiring neck movements such as sport, reading and home duties, would subside and she would be left with "little significant aftermath" of the injury. In November 1986 the plaintiff wrote to the Commissioner of Police asking for reinstatement on the basis of an opinion of the Government Medical Officer at Redland Bay that her neck was functioning normally and that she was capable of carrying out police duties. It appears that after she was examined in January 1987 by a Police Medical Board her application was rejected. She was advised of this by letter of 9th March, 1987 which referred to medical opinion that there was a risk of development of later -- 16 of 26 -- 15 degenerative changes which might necessitate sick leave above the normal, or possible premature retirement. On 11th March, 1987 she attended on Dr. John Lahz. He confirmed that the view expressed in his report of 13th October, 1983 about her eventual full recovery had been proved correct and said that no degenerative changes would develop in the plaintiff's neck. On the same day she consulted Dr. Nicolai Bogduk, an academic, who was at that time in the Department of Anatomy at the University of Queensland and who had a special interest in neck pain. Dr. Bogduk did not put her through the ordinary range of tests because of the lack of facilities in his office at the University. According to his report and his evidence, she said that there had been a gradual improvement in the level of pain from 1982 to 1986 but there had been a dramatic improvement over the 12 months prior to his examination. She said she had had no pain since April 1986 and none of the activities of daily living were in any way limited. He also expressed the view that there was no reason to expect future degenerative disease to any greater extent than normal. On 11 th March, 1987 the plaintiff wrote to the Police Minister drawing attention to these reports. She claimed discrimination against her and expressed the view that it would appear that the disqualifying reasons stated by the Commissioner of Police were "mere window dressings". Following this communication, as appears from a later letter to the Premier dated 3rd June, 1986, she was contacted by an Inspector of Police who told her to report for further -- 17 of 26 -- 16 examination to Dr. Tony Blue which she did on 22nd April, 1987. She claimed that Dr. Blue agreed that she was fit to return to the police force. However on contacting the Department after about a month she was told that the Government Medical Officer was reporting that she was totally and permanently unfit for police duties. Thereupon she made a further appointment with Dr. Blue and had a conversation with him which she taped. There is nothing to indicate that Dr. Blue was aware of this. The tenor of the conversation seemed to be that while she claimed to be suffering no discomfort the stress of police work might cause her to take considerable periods of sick leave. One might suspect also from its tenor that her previous sick leave record had been considered in this connection. I should mention in this connection that there was evidence from Mr. Thomas Mahon, the General Secretary of the Police Union, that statistically the plaintiff's previous sick leave record was within normal limits. It is not necessary or desirable to express any conclusion on the decision not to re-admit Mrs. Carrie to the police force, firstly, because I am not in possession of the full facts concerning the decision and, in any event, all that really matters for the purpose of this assessment is that Mrs. Carrie has lost her career as a police officer and it is unlikely that she will be re-admitted to the police force. I have referred in some detail to the correspondence in 1986 and 1987 because it was relied on by the defendant as evidence that she had no residual disability from her injuries from that time on. Mrs. Carrie was examined on 31st January, -- 18 of 26 -- 17 1989 and 22nd February, 1990 by Dr. James Curtis who concluded that she was suffering from a permanent 20 per cent loss of function of her spine with an increased risk of degeneration in her neck. Dr. Donald Watson saw her on 16th February, 1990 and concluded that she had some residual symptoms from the fracture. In his view the physical effects of the accident reduced her overall bodily performance by 10 per cent. She gave evidence that she suffered from depression and she had consulted psychiatrists in late 1988 and April 1989 with the result that anti-depressant drugs were prescribed. On 21st February, 1990 she was seen by Dr. Klug who described her as "an obviously depressed woman". He expressed the view that the combination of the physical discomfort, the loss of her career and the breakup of her marriage has led to severe depression requiring extended treatment over 12 months or more, with the risk of chronicity. Notwithstanding the plaintiff's assertions about her condition in the correspondence about rejoining the police force, I accept that she still has a disability of about the degree found in the most recent medical examinations. However, I do feel justified in using her attempts to return to the police force as an indication that she felt she was capable of performing clerical tasks in the police force at the times when she pursued the issue. She referred to her expectation of getting an off ice job if she got back into the force in cross-examination. Notwithstanding suggestions that her depression was caused by the breakdown of her marriage and the attitude of her husband towards her, I am satisfied that the -- 19 of 26 -- 18 depression is a reasonably foreseeable consequence of the injury. Prior to the accident the plaintiff was a motivated athletic woman. She played touch football and tennis. She reached Australian Championship level in judo. She cannot engage in these sports now. She cannot swim as enjoyably now because of her neck disability. As I will indicate in more detail below, she has undertaken a course of study to qualify herself ultimately as a social worker or welfare worker. She suffers discomfort while reading in connection with this. She cannot sew or crochet comfortably any more. Having regard to the findings that I have made about her medical condition, I assess damages for pain, suffering and loss of amenities at $35,000.00. $15,000.00 of this will be for past pain and suffering. Interest at 6 per cent over eight years will be $7,200.00. I have taken into account in assessing this sum the mental trauma, including the loss of job satisfaction that Mrs. Carrie has suffered as a result of being discharged from the police force. With regard to past economic loss, Mr. Williams Q.C. submitted that this should be allowed at an amount equal to the base salary of a police officer (approximately $145,000.00 over the relevant period). He said that this was conservative because there was no component for overtime and other payments which the plaintiff might reasonably have expected to earn. Interrogatories were delivered to the plaintiff in connection with her employment for wages for the financial years -- 20 of 26 -- 19 ending 30th June, 1979 to 30th June, 1987 and for the next financial year up to 3rd May, 1988. In respect of the financial years ending 30th June, 1986 and 30th June, 1987 she said she was not employed for wages. In respect of the period 1st July, 1987 to 3rd May, 1988 she said she had been employed by Woolworths for about three and a half months between October 1987 and January 1988 at $180.00 net per week and as a Tupperware dealer from March 1988 to 3rd May, 1988. She said that in that capacity she earned $200.00-$300.00 per week before tax and expenses. She was cross-examined about her employment in connection with the sale of Tupperware. She said she had been employed both as a dealer and a sales manager. Some weeks she worked as much as 60 hours. Al"l::hough the periods of employment were not established precisely, it is clear that she was dealing in Tupperware in both of the years ending 30th June, 1986 and 3 0 th June, 198 7, in addition to the period disclosed. The evidence suggested that the aggregate period of employment was 18 months. She did not disagree with the suggestion that the answers to interrogatories were wrong insofar as they suggested that she had only worked for Tupperware in the 1987-1988 financial year. She did not disagree with the suggestion that from June 1986 to December 1986 she had earned $2,000.00 in commission as sales manager. She agreed that she had earned $1,370.00 in sales manager's commission in March, April and May 1988. She was cross-examined about her turnover as a dealer out of which she said she got about 15-18 cents in the dollar after -- 21 of 26 -- 20 expenses. She agreed that in some weeks she sold $1,000.00 worth of products although, she said, there were some weeks when it was less. These were gross figures. She also omitted a very brief period of employment with David Jones to which I have already adverted. The plaintiff gave evidence that on each occasion when she had been employed she had to eventually resign because she could not cope with the demands of the work because of her injury. I am prepared to accept that. There was also a brief period in which she was employed to visit shops to maintain displays of sunglasses, but this ceased due to the seasonal nature of the job. She also worked briefly as a car cleaner. While accepting that there is some force in Mr. Williams' submission about the conservative nature of the figure proposed by him, in my opinion there should be some reduction to allow for the earnings of the plaintiff during the relevant period. In addition, regard should be had to the plaintiff's capability to work which seems to be established from about 1986 onwards. In this regard I refer to the inference that I have drawn about her capability of doing clerical work if she were to be re-admitted to the police force and to the fact that she did engage in non-physical work from that period on for relatively lengthy periods. In this connection I mention that evidence was given by Mrs. Lorraine Josey, an occupational therapist, that suggested that because of the limitations to Mrs. Carrie's physical capabilities, she would be excluded from clerical positions or -- 22 of 26 -- 21 occupations requiring other than minimal upper limb activity. I am not prepared to accept this assessment uncritically. The basis of the formation of the opinion, to my mind, involves a significant degree of subjective reporting by the person being examined. When I look at the evidence as a whole I am unable to accept fully the conclusions reached by Mrs. Josey. I prefer Dr. Watson's assessment that she would be capable of clerical or administrative tasks had she been taken back into the police force at the time he saw her. Mr. Williams provided figures relating to the weekly wages for a clerk. The net earnings per week of a clerk 24 years and over, according to the Award, would be of the order of $290.00 per week. That would represent a net loss of earnings of about $133. 00 per week. L have. allowed that loss for the last four years before trial. That sum, in my view, allows for contingencies without further reduction because the actual net earnings from her employment during that time were probably a little less than $290.00 per week. For the period before 1986 I have allowed the amount of $73,000.00. Rounding off these figures I have allowed the sum of $100,000.00 for loss of earnings to trial. Interest on that amount at 6 per cent over eight years is $48,000.00. I turn now to future economic loss. Mrs. Carrie has recently commenced a course at the Redland Bay Community College with a view to qualifying herself to enter Griffith University to complete a degree there in behaviourial science. She is doing this with a view to obtaining work as a social worker or welfare worker. It appears that in the hierarchy of the caring -- 23 of 26 -- 22 professions, social workers are the professionals and welfare workers are the technicians, according to evidence given by Marion Elsa Whitaker, a senior careers adviser in the Counselling and Career Centre of the University of Queensland. If one wanted to become a social worker after completing the degree in behaviourial sciences at Griffith University, one would do two years additional study at the University of Queensland. However, a person who had the degree from Griffith University could expect to obtain a position in the welfare field. Most work in this area is to be found in the public sector. According to the Public Service Award - State, a person appointed as a welfare officer would be entitled to be paid about $450.00 per week gross upon appointment, increasing to approximately $600. 00 per week in the sixth year of service. Mr. Williams Q.C. submitted that I should allow for seven years to the completion of studies. That is done on the basis that Mrs. Carrie will not only complete the course at Redland Bay Community College but will be accepted into the course at Griffith University, successfully complete it and then go on to the post graduate years to complete a degree in social work. As I have said, a person can, it appears, hope to get a welfare worker's position with the Griffith degree. There is therefore an element of speculation whether Mrs. Carrie would go on to complete the two years at the University of Queensland. Apart from this, the question of whether it is appropriate that damages be assessed on the basis of a calculation involving either seven years or five years of study followed by employment which she wishes to follow on the ground of job satisfaction as -- 24 of 26 -- 23 a social worker or a welfare worker where the damages so calculated are larger than those which are calculated by reference to a clerical position which she should be capable of doing at this time. In my opinion the proper approach in this case is to assess damages on the basis which results in the latter figure. That would appear to be consistent with the principle that the plaintiff has a duty to mitigate damage. While I have included some component for mental trauma, including loss of job satisfaction already in relation to pain, suffering and loss of amenities, I will add a small component to represent the risk of her being unable to work because of her depression. Applying the loss of $133. 00 per week over 20 years and adding that additional sum, I allow $Q5, 00.0. 00 for future economic loss. A sum of $2,500.00 for past Griffiths v. Kerkemeyer damages was agreed upon. I will allow that sum for the purposes of this calculation. Interest on that at 6 per cent over the eight year period would be $1,200.00. Special damages amounting to $7,957.55 have been claimed and I allow that sum. Interest is payable on $2,586.00 for eight years which amounts to $1,241.00. In light of my acceptance of Dr. Klug's evidence as to Mrs. Carrie's depression, I allow a sum of $1,470.00 for ongoing psychiatric treatment on the basis proposed by Mr. Williams Q.C. A claim has also been made for medication in the sum of $602.00. That claim is also allowed. A claim is also made for future analgesic costs. I allow that on the basis of $10.00 per month for 40 years. That amounts to $2,118.00. -- 25 of 26 -- 24 Mrs. Carrie has given evidence of the discomfort that she suffers while studying. It was suggested that this could be alleviated by the use of equipment upon which she could rest her books while studying. Evidence was given as to suitable equipment and as to its cost. I allow $410. 00 under this category. In light of these calculations I assess Mrs. Carrie' s damages at $302,698.55. However, in view of my finding on liability, the order will be that the action is dismissed. The plaintiff is ordered to pay the defendant's costs of the action to be taxed. -- 26 of 26 --