Bruckner v Nominal Defendant (Queensland) [1990] QSC 112

10 30 ( __ 40 50 60 =-----------···-·•·•--·-- 1 r1-EVISED C:_>:i;.,:S !~SUED ! Court Repcirt'nJ Bure2u IN THE SUPREME COURT OF QUEENSLAND I Da.te, i I 5 !CjoL__ _.......---......---- CIVIL JURISDICTION BEFORE MR. JUSTICE RYAN BRISBANE, 26 APRIL 1990 No.1156 of 1987 (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.) BETWEEN: LORRAINE MARY BRUCKNER -and- THE NOMINAL DEFENDANT (QUEENSLAND) JUDGMENT Plaintiff Defendant HIS HONOUR: I give judgment for the plaintiff against the nominal defendant for $189,909.14 and I order the nominal defendant to pay the plaintiff's costs to be taxed. I publ1ish my reasons. I shall be making a protection order and, accordingly, I will hear submissions on the formal order which I should make. way of Are you in a position to put the topic forward by a formal order? MRS. DELANEY: No, Your Honour. All I am able to say is we will put forward a draft order and submit it to the defendant's solicitors and once it is agreed, a consent order can be delivered. out. MR. TAIT: I am sure we will be able to sort something HIS HONOUR: I think that would be better than drafting something on the spot. 1 10 20 30 40 50 60 -- 1 of 20 -- \ ( \ ( \ THE SUPREME COURT OF QUEENSLAND No. 1156 of 1987 Before Mr. Justice Ryan BETWEEN: AND: LORRAINE MARY BRUCKNER Plaintiff THE NOMINAL DEFENDANT (QUEENSLAND) Defendant JUDGMENT - RYAN J. Delivered the Twenty-sixth day of April, 1990. CATCHWORDS: (' ,~; Negligence Personal Injuries - No collision of cars - Whether l.J unidentified driver caused plaintiff's injuries - Contributory Negligence by plaintiff - Excess Speed and failure to wear seat belt. Counsel: Mr. G.W. Crooke Q.C. with Mr. W.A. Martin for Plaintiff Mr. T.T. Clifford Q.C. with Mr. D.H. Tait for Defendant Solicitors: Lyons for Plaintiff Breens for Defendant Hearing Dates: 26th, 27th and 28th March, 1990. -- 2 of 20 -- () ( ' \._ _ _j IN THE SUPREME COURT OF QUEENSLAND BETWEEN: No. 1156 of 1987 LORRAINE MARY BRUCKNER Plaintiff THE NOMINAL DEFENDANT (QUEENSLAND) Defendant JUDGMENT - RYAN J. Delivered the Twenty-sixth day of April, 1990. The plaintiff who was born on 2nd February, 1964, was injured in an accident on 2nd February, 1985, which was her 21st birthday. The plaintiff suffered brain injury in the accident, and has no memory of it. It is alleged in the statement of claim that at or about 8.00 a.m. on 2nd February, 1985 the plaintiff was driving a motor vehicle outbound along Brookfield Road, Brisbane, and that at or about the same time an unidentified person was driving a motor vehicle along the road inbound and in the opposite direction to the plaintiff's vehicle. It is alleged that the unidentified motor vehicle drove onto its incorrect side of the roadway, and in attempting to avoid it the plaintiff lost control of her motor vehicle which overturned and in consequence she sustained personal injury, loss and damage. The critical question in this case is whether the plaintiff has established on the balance of probabilities that the accident was caused by the negligence of the driver of the unidentified motor vehicle. -- 3 of 20 -- 2 The plairitiff was injured when she was thrown from her car,· a Ford l,as~r; ·w1:1i'ch struck a wall on the side of a store which is or~ .. · the Outbound ·side of· Brookfield Road. · This is shown in ex. ·11. · The general la.Y-ou.t 6f · the area is· shown in ex. 16 and 27. These show that a motorist travelling outbound would have come round a curve in the road, which is marked at the most northe'rly part shown in the maps by a double white line. On the passenger's· side of the car travelling outbound, the bitumen surface is su~ceeded by a·rough gravel surface and then by a rather steep embankment. The stdre is set in some distance from the road which continues down to Gold Creek Road on the right and Upper Brookfield Road on the left. From the intersection , . . r . there is a clear view up to the curve in the road. Brookfield Road.' :is crossed. by" 'Bascombe!' ·street. An access road leading to . . Bascombe Street is shown iri ~x. 17. It ·1ead~ off the inbound· side of Brookfield Road on the opposite side of the store and between the store and the crest of the hill. A poli~e officer from the traffic accident appreciation squad who investigated the accident prepared a sketch plan, which . . This shows that the width of the bitumen strip was 3. ·1 metres in the outbound lane and 2. 8 metres in the inbound lane. Be said that the gravel surface was about 5 cm. below the bitumen. Outside· the store, the width of the bitumen was 2.7 metres on the inbound lane, and 6.05 metres on the outbound lane. He estim~·ted . the . width of the Ford Laser as being 1.4 metres: He said thit when he saw the Ford Laser, it was in the position shOwn in ex. · 21, that is, outside the store and facing inbound. Another police officer, who went to the scene of . -- - --·--· -------···-··-------------------------------- --·-- -- ------- --- (. \ 'l. I C) -- 4 of 20 -- 3 the accident at. about 8.10 a.m., said it was in the position shown in ex. 17, which appears to me to be the same position. I begin the examination of the evidence by referring to that of two persons who said they witnessed the accident. Mr. Hugh Mitchell said that he had driven along Gold Creek Road into Brookfield Road. He was taking his son to a college :which involved him in driving inbound along Brookfield Road. He said there were no cars in front of him up to the crest. He saw the (J yellow Laser on the crest, when he was 26 to 28 yards from the store. There were no vehicles between him and the Laser. In cross-examination, he said it was not possible that another vehicle had just passed the plaintiff's vehicle at the top of the crest, and he asserted that he looked well ahead when drivi~g. He said that he saw the left h~~d side re~r ~f.the La~~; swing ~ "' • •~• : '- r ' ,I ,,: •.•,.. •./ •• • •••w towards the bank immediately over the crest. He described how he saw the car move to the bank on its left, the rear of the (-'! vehicle swerve violently towards the other side of the road '·J (_) across the white line and how the car "fishtailed" down the road, very close to the bank. He said that part of the rear of the car was off the bitumen when he saw it and it seemed to g~t very close to the bank. He said that there was a bump immediately on top of the crest and that the rear of the car had been on it when he first saw it. He said that when he saw that the car was in trouble he drove onto the gravel on the side of the road about a foot off the bitumen. He saw the Laser start to tumble over, and hit the concrete wall. There was a loud noise as it did so. The Laser appeared to be travelling fast, he thought about -- 5 of 20 -- 4 .· 80 k.p~h. He estimated' the distance from the store.to the crest as being about 140 yards. Mr. James Mitchell, the ·son. of Mr. Hugh Mitchell, is now 20 year~ 6t age. He s~id tha~ about jo metres before his fathe~'s car reached the store he saw·a yellow Laser come over the top of the hiil and he saw that it was swerving. The left side of the car swerved towards the bank. His father pulled over to the side of the road. He said there no vehicles in front of their car travelling along Brookfield Road. He had the impression the . ' . Laser was travelling "pretty fast". He added that if there was another vehicle it would have been a "fair distarice".in front of them. The storekeeper, Mr~ Gale, said that at about 8.00 a.m. as he walked towards the curb outside · the store ' to · collect newspapers he· heard a noise wh{6h mad~ him look to his right. ,· In cross~examination, he said that the noise was a screech of tyres. He saw two cars at the top of the hill. One car was disappe~ring towards Kenmore and the other, a Laser, was coming towards him. The Laser was down in the gutter, which de~ciibed as a very deep six inch wash-out beside the road. he It was down on an angle and about a car's length closer to him than The other car was at the very peak of the crest with. the· driver's side· wheels on the double line. The wh.eels were on· the outside white· line. He saw it for only a . . split second and.desc~ibed· it as a light coloured vehicle. He said th~t when he fir~t sa~·the Laser both wheels were stuck in the gutter-~nd the driver was attempting to get the front wheeis out. The passenger's sfde wheels were substantially lower than Q (__1' -- 6 of 20 -- () () lJ 5 the driver.' s. side wheels. The car came out of the trench and across to the wrong side of the road. The driver then went on to the wrong side. of the road, at about a 45 degree angle to the road. It then proceeded to.do a 90 degree left turn to_ try and regain the original side of the road. In doing so, the back wheels started to slide but as the vehicle regained its correct side of the road the driver's right hand wheel dropped. He said that the car dropped sharply as if something had burst. The car then started to roll, flew into the air, rolled and flew into the air again. Mr. Gale ran into. the store to dial the emergency num~er, and as he was dialling the car smashed into the lower part of his store. When he came out of the store, the car was off its wheels against the wall, and the driver was lying 10 to 15 feet higher up. the hJll_ .... .: ';) Mr. Gale said in cross-examination that when he first saw the yellow Laser, it was half off the bitumen, well away from the w~ite line. It was over the crest and in the gutter. He said he had a clear line of sight of the other vehicle which was going over the crest. He said that the driver's seat belt in the Laser was still in the clicked position, as if the driver was still in it, and it seemed. to.be intact. Evidence was given by two school girls, who were each aged 11 at the time an9 who are now aged 16 years. Emma Bridge said on the day of the accident she was with her friend Sally Power and· they were riding their horses. They went to the store and crossed the road again to a paddock referred to as the cemetery paddock, which is directly across the road from the store. Their horses were in a yard about 40 metres from the gate. She said ',,{ -- 7 of 20 -- 6 she werit ·to 'the :gate ·and when· she was about·· four· metres· from it she saw··a dark :coloured car . going inbound· towards Kenmore. · It was 6ri its ·correct side. She said that it looked to her that• it ·wa's not driving normally ·up the· hill·. She said that she was about to turn away when she saw that it looked as though the driver was going to turn a right hand corner though there was no· corner there and there was no road to turn into. She saw he was ov~r the middle line of the road. She did not see any more as· she looked away. When she saw this, the car was a small way down ('.! from the crest. the said that she kept walking towards the hors·es a'r1d heard a screeching of car brakes. She ·went to the horses and when she got into the yard with her horse she looked over and saw the Laser near the shop half on the road and half on ·th~· dirt ·footp~th: - She- said that ·she could not remember hearing' the sound of a' car hitting the shop ... " ... sa·11y Power gave the same account as Emma Bridges of going 0 to· the store and coming back through the cemetery paddock gates. (~; She·· said she heard a screeching down where Brookfield Road int~rsects with Gold Creek Road when she had walked about five metres £rem the gate. She turned around and saw a car on the incorrect side. It looked about 1 00 metres from the shop, towards Gold Creek Road. She described it as dark brown and maroon. She said it went from the incorrect side to the correct si~e ahd then back to the incorrect side. It was at least partly on·· the wrong side of the road. It was swerving very fast. She stopped· looking, and.went to get her horse out of the pen. When she was putting the bridle on it, she heard a big bang, and saw a cai wai smash~~ int; a wall of the-~hop. -- ---------- --- ~~---- -----~· --- -- 8 of 20 -- 7 . I _accevt the_ evidence by the t~o _schoolgirls that __ they saw a dark-coloured car :E)roceeding inbound along Brookfield Road, and that at some stage between .. when they first saw it a_nd the crest of the hill it crossed at ~east p~rtly onto the incqrrect side of the road. However, the time which must have elapsed between when they saw that car and the collision of the Laser with the wall was such that I have concluded that this car had passeq the crest before the plaintiff's car reached it. If it took the .. (. / \) _ girls 30 seconds to get to the yard, which was 40 metres from the u gate, to enter it and put a bridle on the horses, then the car, travelling at 60 k.p.h., would have travelled 500 metres apd that would have placed it well beyond the crest. I-accept Mr. Mitchell and his son as truthful witnesses. I •· I_ accept Mr. ;Gale also as a truthful witness. Involved in the ' ' :...~. l,,.. ., ; ,') last statement is an acceptance of his evidence that.he saw a car at the peak of the crest proceeding towards Kenmore when he first s~w ._ the plaintiff's car. It follows that I think that the Mitchells made an honest mistake in saying that there was no car ahead of them on Brookfield Road. There was no reason why they ( I'-c_,_J should have paid attention at the time they entered Brookfield Road to the presence of a vehicle travelling in the same· direction a considerable distance ahead. The question then is whether it should be concluded on the basis of the evidence of Mr. Gale that the plaintiff's injuries were caused by the negligence of the driver of the unidentified vehicle. In my opinion the.driver of the unidentified vehicle should have foreseen that if he drove around the bend at the crest of the hill with the driver's wheels on the centre line, -- 9 of 20 -- 8 a motorist 'p~oceedin~ 111· the_ ·opposite direction might swerve to the:Le~f t6 a~oi~ a·co1lisio~ and g~t into difficulties in the loose gravel between the· bitumen and·· the bank. He owed a duty to any_motorist who might be proceeding in the opposite direction to him to keep to his own side of the road. But should it be concluded that the unidentified motorist's conduct caused the plaintiff's damage? Even accepting that the driver's side wheels were on the double line, there was /---.\ sufficient. room on the road for the plaintiff to pass safely if \./' she had her car under proper control, and there is no evidence which indicates that she swerved to the left to avoid the driver who was ,approaching her. I consider however that I should infer that she did so. I accept the evidence that when her car passed the uni.denti.fied vehicle, her_ car was close_ to the bank. It seems to me that the most likely explanation as to why it should be there was that it had been forced over to the side by the 0 presence -of an approaching vehicle. But I am satisfied also that c--:) the reason why she was so far over to the side was that she had taken action to correct the effect of excessive speed on her part. A local police officer who had driven along Brookfield Road on numerous occasions gave the following evidence? "9. Q. Did you have any difficulty negotiating it at 60 k.p.h. - the corner? -- -- You ~ould negotiate it at 60 k.p.h. but as the speed increased you would have to be somewhat careful. What about 80 k.p.h.? -- -- You would have to be very careful I.would say. Any faster than that? You would have to be lucky, I would say. Later he said: ( -- 10 of 20 -- (; 9 Q. Coming from. the direction of Kenmore and n.egotiating the curve, which is to the left, if one negotiated that too quickly,the natural tendency of_the vehicle would be for the rear of the vehicle · to swing or diverge to the right hand.side of the road? -- to the right-hand side, yes." I consider it probable that the plaintiff drove through the . . . . curve at a speed in excess of the road limit, namely 60 k.p.'h., that the rear of her vehicle swung to the right, and that she swung her vehicle towards the bank and onto the gravel shoulder in order to avoid the oncoming vehicle. I infer that she drove· at a speed in excess of 60 k.p.h. from the evidence of Mr. Hugh Mitchell, who said that the Laser appeared to be travelling • ·(-- fast, about 80 k.p.h., and from the evidence of Mr. James ' .. ,, Mitchell, who had the impression it was travelling "pretty fast". Mr. Gale thought that the Laser did not appear io:b~~ speedi~g until after it sta~ted to·: roll'~ but:evidence wa~/given· 1 by an engineer' which I accept' that a vehicle wotild nc:i't gain speed when rolling. I add to these considerations the fact that the plaintiff was returning from Kenmore to her place of employment and .. that (_) she was somewhat late in beginning her work. This could provide - a motive for her proceeding at an excessive speed. The plaintiff contributed to her injuries not only through driving along Brookfield Road at an excessive speed, but also ' through failure to wear a seat belt. I have concluded that she failed to do so having regard to the evidence that she was thrown from the vehicle, and that the belt was intact and in a clicked position. According to the evidence · of an engineer, Dr. Grigg, if a person is wearing a seat belt the risk of -- 11 of 20 -- 10 ej'ectibd from a vehicle:• is nil, arid ·the risk of severe injury is greatly reduced. r- 'accept : this evidence; indeed, I· consider that no expert evidence was-·rieeded to establish that ·wearing a seat belt~redu6es the risk of severe inj~ry. I have reached the conclusion that she was not:wearing a seat belt, though evidence was given by a neurosurgeon that the injury she sustained to her liver and spleen were likely to have been caused through wearing a seat belt. I have concluded that the plaintiff's damage was caused by (': the negligence of the unidentified driver,· -but that she contribu.ted to it by her own negligence. I apportion her share in the responsibility for the damage at 40 per cent. The pl•aintiff was admitted to Royal Brisbane Hospital with a ·severe head injury; 'abdominal trauma and orthopaedic injuries. There was•. a . fract~re of the · medial . epicondyle of the right ' ... humerus and an undisplaced cortical fracture of the right olecranori. There was a fracture of the left superior and irtfer:L-c:ir pubic rami and a fracture of the lateral mass of the ri~~~ sa~rum. Compound scrub and debridement of the left foot and.right forearm lacerations were performed. A laparotomy was performed which' demonstrated the presence of a single long laceration across the anterior aspect of the spleen. The ruptur~d spleen was repaired surgically. On 19th February split skin grafts were applied to the defect on the right forearm. A C.T. head scan was performed on the same day which showed the presence of bilateral thin chronic subdural ha~matoemas. Next day evacuation of bilateral front6~ temporal traumatic hygromas was performed. Subsequently she was -- 12 of 20 -- 1 1 found to have,bruising in the frontal lobes of her .brain which resulted in behaviourial pro.blems., She remained in hospital for eight weeks and .on her discharge was.still very agitated and difficult to control. A few weeks later she was readmitted to hospital. She was allowed to go home on 4th April, 1985. Doctor Fredericks, a psychiatrist, stated in a report made in October, 1986 that the plaintiff's history indicated that she had major personality and emotional problems prior to her (~ accident in 1985. There was a long history of problems in her relationships with her parents. She left school after Grade 10, having not done well academically as she had so many emotional problems that she could not concentrate on her .school work. Thes~ latter problems were relate~ to her difficulties fo~ming friendships with her peer group and her, ongoi;n9 di.fficul ties in ' . . . •' . .. ' , , ~ ,. - ' ' . ~ .. her relationships with . her parents. At the age of JS .she developed anorexia nervosa with bulimia. This psychiatric (~) disorder usually indicates major personality and emotional problems·: In ·association with her anorexia nervosa, she was amenorrhoeic for three years between the ages of 16 to 18 years and when aged 18 years her weight went down to five and .a half . .--: stone. Prior to her accident her weight was between seven and a half and eight stone. Other features of her anorexia nervosa were the use of laxatives, repeated vomiting, a complete disinterest in heterosexual relationships and her being a very physically active young woman, who worked long hours. The accuracy of this account was supported by .the evidence of the plaintiff's general medical practitioner, Dr. O'Sullivati. -- 13 of 20 -- 12 Doctor' Frecieri~k.s'. r~ported 'that the injury caused her· to. stist.'airi a·;severe head· injury :with resultant fro·ntal lobe brain damage. This had signifidant'ly added to and aggravated her already existed-personality and beh~vioura1· problems. · He did not . exp~ct. any·. marked improvement in her personality and behaviour with time. In a subsequent report dated 21st March, · 1990, Dr. Fredericks stated that although the plaintiff was coping better than in 1985-86, a number of areas in her ·psychological functioning and behaviour had not altered or imp·roved. The most maiked ~hange ~n her compared with her pre-accident level of functioning, related to her moodiness and bad temper. Often with minimal provocation, when she 'feels frustrated pressured,·· critic:i.secr ·or unable . to cope, .. she reacts. in a hostile .. and verballi ag~ressive mannef~ She continues to · show a·. low tolerance of stress and she does not cope well with normal everyday stresses. She has problems with concentration and short term memory. Occupationally she has not been able to cop since ·her ·accident. contraction headaches .. She ·continues to suffer from muscle In oral evidence Dr. Fredericks said that her anorexia nervosa would probably have been an ongoing problem for many· years, and 'that she would have had ongoing.problems even if the abcident had not occur~ed. Doctor James, a psy6hiatrist, repo~ted that the plaint~ff had ur~doubt~dly sustained organic brain damage resulting in a personality change with frontal lobe features. There had probably been a mild degree of intellectual impairment caused by ( '·) ( ) -- 14 of 20 -- 13 the accident. H_e said in _or.al. testimony that she would probably benefit from some counselli~g. She had a capacity to learn from experience and to modify her behaviour. Doctor Toakley, a neurosurgeon, expressed the opinion that from the neurosurgical point of view the plaintiff had a serious head and brain injury. She had sustained organic brain damage which had left her with personality disorders, impaired memory and concentration. He doubted if further improvement would occur. He thought that her lack of inhibition was completely related to her injury. An orthopaedic surgeon, Dr. Watson, reported that the plaintiff had now a recurrent dislocation of the shoulder which could be corrected by operation. The right elbow has no obvious deformity apart from ~he extensive_scar;ing. just distal to.the • ' • ., , > ' • elbow. There is a full range of flexio_n but there is a loss of fiv:.e degrees in the_ extension range compared with the other elbow. She has a 30 per cent disability of her right arm. The left foot shows an extensive transverse scar over the _:j.ns:tep extending into the sole. Scars in this area are very tender. Doctor Watson said that the cost of an operation to correct the shoulder. would be $4,200.00. She would be incapacitated for two months. Doctor Har~is, a plastic and reconstructive surgeon stated that the right forearm was still extensively scarred. This has resulted from skin loss over a large area in the upper part of the forearm. Ther~ is generalised scarring over the dorsum of the right hand. There are several scars on the right arm between elbow and shoulder. On the left loin there remain -- 15 of 20 -- se~erai whi t:·e. ridges' Jhlch 'have 'reached their perinanen't state. Ther-~ ii a' line. of 'scar:firig across the 'upper wall on the right . side running parallel with. ·the rib cage, representing· deep· abrasion .. in this are·a .. , . To the left of the umbilicus. is · a surgical wound reiated to 'her treatment following ·the accident.· . There is scarring also on the.right thigh, the left foot and the left calf. Doctor Harris said · that the scar on the right forearm remained as an unsightly scar and "if the-plaintiff so desired an attempt·· could be made to· improve the degree of scarring in that region. Doctor Holmes, a urologist,· expressed the opinion that the piafntiff had suffered damage to the . upper pole of her right kidne'y in the accide~t. 'This made her more susceptible to ·. ·. ._, ,. ~ ,_· . ~/ " . , , .• .. ;~ • .: { :. ,• ,.; _:, • ; • . L • ..,_ urinary tract infe·ction~ He did. not anticipate· that' surgical inte-rveiitidn \-iould be required: - It was possible she. would have irife6tioris in the future, but these· should be controlled by i':. ' an.tibiotics. rioci{oi Parker, a specialist in diseases of the eai, nose and th.:C:oat, reported that the plaintiff had had severe damage to the olfactory nerves and this had resuited in permanent loss of sens·e of smell. The plaintiff said that she was prepared to have the operations recommended by Dr. Harris and also by Dr. Watson if the latter · operation was likely to be successful, as ·r am s~lisfiea it;probably ~ould be. The plaintiff · gave an account of her life before the accident. She referred to leaving school at age 14, helping her father for a whili on the farm, and theri working as a strapper () ( 1 _J (_) -- 16 of 20 -- 15 for a stud next door fo::r two. years. She wo;-ked as a strapper in Sydney for six months an.a. then was employed by Mr .. ~cEvoy as a veterinary assistant and farm hand. . She said that since the accident she lost her .temper from time to time. She hc;1.d a number of temporary sexual ~elationships. At present she has a boyfriend and is expecting a child by him, but she does not want to marry him as they are always fighting. She said that she gets depressed frequently, and that she cannot do a lot of () things she would like to do. She has been dismissed from every 0 (_) job she had attempted since the accident. casual work of a housekeeping nature. She has done some Mr. McEvoy, a veterinary surgeon, said that the plaintiff started wo~king for him in early 1983. He described her as a quiet reserved girl, hpnest.and reliable, and 9opular with those who worked with her. He.said_she was the best employe~ he had had in 15 years in handling animals, and it was difficult to keep her away from work. After the accident she was like a five year.old_child. She would wander off mentally and physically, and her temper could.change in a matter of seconds. Her average earnings h~d been $180.00 per week. He said. that he was .paying an assistant at present $300.00 per week gross and $5,000.00 per annum in benefits, and she was "worth every penny" that person was receiving. The plaintiff's mother described her as being a very difficult patient to look after when she came out of hospital. She had to be assisted at all times. Mrs. Bruckner was and is still employed as an assistant nurse in an old age people's home. She said that her husband took holiday time off work to -- 17 of 20 -- 16 look after the p'atient and then: she took five weeks holiday from her· employment to look after· her. · She said that· she and her husband slept on the floor outside the plaintiff's room for most of 1985, ·since she had no balance and might fall over if ·she got out of bed. physiotherapy. .. In June or July she started taking her to At the end· of November she returned to her employment with Mr. McEvoy. The plaintiff has suffered the severe physical injuries, ( -\ _ _ .I including brain damage, which are mentioned in the reports to _ which I have ref erred. For pain, suffering and loss of the amenities of life, I assess damages in the sum of $80,000.00. I allow interest on $30,000.00 for five years at six per cent. Tha:t amounts; to $9 /000. 00. '·· Special da~ages are·agreed'in' the amount of $14,715.49. rt ih~-~laintiff had remained irt employment until the time ' ' ' ' of trial a~ a veterinarj assistant, she would have earned net income of~approximately $48,760.00. I am satisfied that she probably would have done so. She has in fact earned income of a~proxi~ately $7,500.00. I assess damages in respect of past loss of income at·$40,000.00. Ther~ will be no interest allowed on that, as she ha~·received more than that amount from the Workers' Compensation Board. I ·assess compensation for past care at $7.00 per hour on the basis of 35 hours care per week for 18 weeks, six hours per week for eight weeks, and one hour per week for four years. That amounts of $6,202.00. The plaintiff's life expectancy is 53 years. Evidence was given that a service is available to brain-damaged persons C) ( ) '-/ -- 18 of 20 -- 17 trying to live independently to enable them to live, as far as possible, a_normal lifestyle in the community. I consider that I should make an-allowance for such a service to be provided to the pla;i.ntiff at $18.00 per week, commencing in 10 years time, since it is likely she will have family support until then. I allow $12,000.00 for this purpose and also for the provision of counselling. For future operation costs, I allow $8,950.00. I allow ('; also $1,750.00 for future recurring pharmaceutical costs. ( I In relation to future economic loss I was invited by counsel for the defendant to assess damages on the basis that she would have continued to work as a veterinary assistant until she had a family, and then probably would have resumed employment after a period -on a part time earning basis for a number of years. For the plaintiff, it was submitted that I should allow her damages on the basis of $300.00 per week for 24_ (- ~ years. I do not think that either of these submissions should \ J -~ lJ be followed. I consider that a global figure should be awarded, which I fix in the amount of $125,000.00. I am satisfied that she is now virtually unemployable for the future. Accordingly I assess damages as follows:- (a) Pain suffering and loss of amenities of life Interest (b) Special damages (c) Past loss of income (d) Fox v. Wood component (e) Past Care (f) Future Care (g) Provision for future surgery $80,000.00 9,000.00 14,715.49 40,000.00 897.70 6,202.00 12,000.00 8,950.00 -- 19 of 20 -- 18 (h) Provision for future pharmaceutical costs 1,750.00 (i) Future loss of income 125,000.00 Total $298,515.19 I am satisfied that the plaintiff is unable to manage her own financial affairs, and that a protection order should be made. I add to the above amount the sum of $18,000.00 for Public Trustee costs. Accordingly, after deducting 40 per cent by reason of her contributory negligence I give judgment for the plaintiff against the Nominal Defendant for $189,S09.14 and I order the Nominal Defendant to pay the plaintiff's costs to be taxed. I shall hear submissions on the formal order which I should (-,, \. I --- .. ,' make. -- 20 of 20 --