Ball v Fullagar [1990] QSC 74

10 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BEFORE MR. JUSTICE CARTER BRISBANE, 6 APRIL 1990 No. 1841 of 1985 (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: MELODY ADELLE BALL -anc- BARNEY FULLAGAR JUDGMENT Plaintiff Defendant 10 20 BIS HONOUR: In this matter I give judgment for the plaintiff against the defendant for $178,931.96 with costs 30 30 to be taxed. I publish my reasons. c~L-,40 40 50 50 60 60 -c--Govt. Printer, Qld. 1 -- 1 of 19 -- : I j j C C: C IN THE SUPREME COURT OF QUEENSLAND • No. 1841 of 1985 Before Mr. Justice Carter BETWEEN: MELODY ADELLE BALL Plaintiff AND: BARNEY FULLAGAR CATCHWORDS: Counsel: Solicitors: Defendant REASONS FOR JUDGMENT - CARTER J. Delivered the 6th day of April, 1990. P.J. McHugh for the Plaintiff R.M. Stenson for the Defendant Leith Sinclair & Company for the Plaintiff W.H. Tutt & Company for the Defendant Hearing dates: 29th and 30th March, 1990 -- 2 of 19 -- ,. C c! IN THE SUPREME COURT OF QUEENSLAND Before Mr. Justice Carter BETWEEN: MELODY ADELLE BALL AND: BARNEY FULLAGAR No. 1841 of 1985 Plaintiff Defendant REASONS FOR JUDGMENT - CARTER J. Delivered the 6th day of April, 1990. On 20th September, 1984 and until recently the defendant was the proprietor of the Rocklea Snack Bar situated at Evans Road, Rocklea which, it is well known, is an industrial suburb to the south west of the city. The plaintiff on that day was one of his employees and had been since 1980. Since that day she has not worked for the defendant or for any other employer because of an injury which she sustained to her back in the course of her ('. '----· employment . The circumstances in which she was injured led counsel for the defendant to submit that there could be no liability in the defendant at common law or for breach of the Factories and Shops Act 1960-1983 for the serious injury suffered by the plaintiff because the plaintiff was injured in what was described as a simple domestic accident whilst performing a simple task which had been done "thousands of times before" and which was "not inherently dangerous". The case raises questions -- 3 of 19 -- 2 of law and of fact which can be more readily identified by a reclt~tion of the~relevant fa~ts~ · The plaintiff's working hours daily were 5.30 a.m. - 1'p·.m~ She, the snack bar chef, other kitchen ·employees, and'.. so it seems, the defendant himself all commenced work at the' early hour of 5.30 a.m. to prepare a variety of food for ·sale ·during the course of the day; The chef was busy in the kitchen cooking buns,. bread products and cakes for sale; the plaintiff and others . ' were ·busy prep·aririg and pre-cooking other foodstuffs. The . . . - - . kitchen was equipped inter alia with deep fryers in which a large ... quantity of ·potato scallops and other· foods were cooked. Preparation beriches were used for making the batter -in which the scal'lops· were cooked ·and facilities-were'. provided. for washi'rig a vari~ty ~' of cooking· ~utensils and other' pieces of crockery, · uteris.ils~ and the "like.· l · ani satisfied on the evidence that the early hours of· th~ working day for the plaintiff and others were ., 0 0 bus:i cii;;~ during which time most if not all of the foodstuffs to Q be scild t·o the ·customers of the shop on th~t day were· prepared~· The evidence- 'of the . defendant is that a junior employee was engaged'· to commenc~ :'work . at 7. 30 a. m. and her .· chores were . , . , . essentialiy to wash and clean the accumulation of items which had'~ollected in th~ kitchen on account of what had already gone·· on ··'earlier in the mo~nihg and to sweep· the · floors upon which there was usually deposits of flour and othe~ ingredients used in :-the cooking. •.• ·rn short I ~in satisfied and I - so find that by ab~lit 8~8 ~ 30 a·.m. iii the: morning of each :day". there was a well developed routine in~the:kitcheri designed to ensi:ire· the provision of a sufficient quantity oi:- stock of foodstuffs to· service the' -- 4 of 19 -- I . i ' 3 demands -0f the customers to the shop during the day. Each employee knew what was required of .. him or her. Some.. were employed to cook, to clean up, to serve in the shop and th~re was no doubt a mix of duties. In any event there was. much to be done and time "was of the. essence". By about 8.15 a.m. on the morning of 20th September, 1984 the plaintiff had been making scallops which when.cooked had been layered on wire. mesh trays prior to being carried to a warming C cupboard for storage until required. This cupboard which .was c\ 1,680 millimetres high and 510 millimetres wide was also used. for the storage of items which had been prepared by the pastry cook. The warming oven was a device used . for the storage of, for example,• buns.in.order .to.c!,cce;Lerate the action of the yeast so that the. bun~ .. would., ''.ri~e". Haying prepared. three trays of : ~- { f~- - ~ ;. • ! . . .. - . ~ ., ~ scallops for storage the_plaintiff saw that there were only _two vacant racks in the warming cupboard available for scal,;t.ops and ' ,,,--. she packed one of the trays into various layers so as to ensure \_; that they could be placed in the warming cupboard. Each.tray made of metal was 835 millimetres long and 400 millimetres wide. When it was loaded with the cooked scallops laid out in layers as described by tp.e plaintiff it weighed about 9.5 kilograms. The_rack in tpe cupboard into which the plaintiff _was intendi~g to place the particular. loaded tray was the top one and 'for the plaintiff was at about_head height. The plaintiff gave evidence that she carried the loaded tray by.placing her right hand underneath it in order to balance.it and that she carried it at or above the height of her right shoulder. She steadied the loaded tray by holding the front of, -- 5 of 19 -- 4 it with her left ·hand. ' She walked from the'- area· of the· deep fryers to the warming·cupboard. The door of the latter had to . ' be kept closed ana· it-was so constructed that the opening ·1atch was on the left and it was hinged on the right as one faced it. Therefore to open it and to place the loaded tray of scallops into a rack•in th~ cupboard it•was necessary that the plaintiff unlatch the cupboard with her left hand and whilst balancing the loaded tray in her right hand to then move -,the - loaded tray backwards and at the same time to flick open the door of the.- 0 cupboard so that it would clear the front of the tray and that when it had, to qtiickly replace her left hand on to the front of the tray in order t6 take the weight and to then guide the loaded·- .. tra'.y' •into the cupboard. On this day the'plaintiff-described-as best '·she' 'could 'what···ha.ppened to her. When she flicked the· cupb'oard·door openwith·her·left hand and when moving the loaded 0 tray bb:cl<:~a.rds: . sudd'enly-, so that it would clear the door, she -- • tended· to ove·rbalance backwards which she attempted- __ to correct Q by ··6verbalancing forward and she then fell backwards with the loaded tray of scallops onto the freezer door and handle which was beliind her and'she then fell on to the concrete floor.· The pastry ·c::ook Mr. Clarke-and another kitchen hand Mrs. O'Toole saw' and/or heard the c'omm.otion associated with her falling with the tray.- - Mr. -- Clarke went--to help her up arid picked up the scallops · which had fallen· off the tray. · The plaintiff ·complained that she was; hurt and as Sbon as' she co:hveniently could she left the snack bar'· aria·· ~ent home~. H~r· daughter Carolyn had ·t'o help her mother · from the ·car. ' . She· was''· ob'viously in considerable pain and ·on her --· way f rorif the snack.: bar · to her · home she had gone to·· the -su~ge~y ·: · 0 -- 6 of 19 -- I i'i t Ii I I I I i C CJ I 1! C) I 5 of Dr .. Carter: to whom. she related what had h_appened (ex. 9 ) and she complained to him of pain in her back and. right buttock radiating into her right hip .. and both_ thighs. Sbe .· has had surgery since that time and has not worked since the day on which she was hurt. The plaintiff had been. working in the kitchen doing the_ scallops for. some few days prior to this day. She had previously been engaged upon other duties .. She had done precisely the same task. of taking the scallops to the warming cupboard. in the cou.rse of her employment several times . before. Counsel for the defendant submitted that it had been done "thousands of times!' before, . that the same system had been in. place. for. years. and continued .in use after the plaintiff left her employment on, tha.t .. da'¥.- · Tnis.. ¥fas .,S.~~d. t.~~.:, parl: pf _the,. suqm~ssio~ _ ~r,iat _i,n _re}~_t.ion__ .,_: to what the plaintiff was doing on the occasion in questiop the. defendant owed to her no specific duty of care nor_.was. he. in breach of any relevant duty owed to the plaintiff at. that.time. It was, as counsel submitted, a simple procedure which.was not dangerous. Leaving, aside the facts of the case for .. a moment it is necessary to assess the worth of counsel's submission against tbe relevant statements of principle in the High Court. The most_ relevant case for present purposes seems to be Wyong Shire Council v. Shirt (1980-81) 146 C.L.R. 40. So often. is it submi.tted that the stcmdard. of care owed. by an employer to his employee does not extend to situations which.are "not inherently dangerous", which involve ''si_mple procedures!', or in which injury is.''unlikely to.occur!' .. that it is necessa:z;-y to refe:z;- to authority -- 7 of 19 -- 6 for the purpose of· properly defining the· nature - and extent:. of the duty. Mason J. '(with whom Stephen and Aickin JJ'agreed) was considering a like submfssidn in Wyong Shire Council v .• Shirt' when he said at p~ 48:- "The considerations to which I have· re·ferred indicate· that a risk of injury which is remote in the sense · that it is· .· extremely· unlikely to occur may nevertheless constitute a foreseeable risk. A risk ·.· ·which is not ' far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the •··existence of -a· fore·seeable risk of -- injury: does :not in itself dispose of the question of breach of duty. The ·- :magnitude ·of· the risk and its degree of - probability remain to be considered with other relevant factors." The considerations to which His Honour referred are set out in t~e following paragraph at pp. 47-8:- " In deciding whether there has been a breach of the '· duty of- 'care.,. the tribunal of fact must first: ask itself whether a reasonable man in the defendant's position would have foreseen that his .cidnduct involved a risk of injuiy td the plaintiff or to a class of .. :persons.including the plaintiff. ·If the answer-be in the affirmative, it is then for the tribunal of fact . 'td determine what a reas·onable man would do by ·way of response to the risk. The perception of the ~; reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its· occurrence, along with the expense, d~fficulty and inconvenience of taking alleviating -action· and (any- ... other conflicting responsibilities which the defendant may have. It is only when these matters ·are balanced out that the tribunal of fact can. confidently assert what is the standard of response to be1 ascribed· to ·, the reasonable man ' placed in · the· defendant's position." Foreseeability of the risk of injury and the likelihood of risk occurring are as His Honour said "bvo different things". Foreseeability of the risk is a first step in the definition of the existence or otherwise of a duty of care. The risk of '. ·~ ' . ~ injury must be real and not "far-fetched or fanciful". That is -..,,.. the first enquiry for the tribunal of fact. That enquiry 0 0 0 0 -- 8 of 19 -- C 0 7 necessarily. requires. that one · draw upon the experiences of ordinary everyday_. life, upon one's knowledge of the way in which humans behave, even upon one's own experiences and knowledge of other events which one has experienced personally or observed in the case of others. Tl1,e sequence of events which the plaintiff related ~n the evidence left one with the clear view that the fall which she encountered was the logical result of what she was doing. She had been.working for some .few hours; there was a certain urgency- about what she was doing; she was obviously intent on meeting the relevant deadlines in advance of the day's trading; the load which she, a woman then weighing 8½ stone, was carrying was not an insignificant one; the task required her to balance that somewhat awkward load-in-one-hand and to move- it - suddenly • when she. :-f l,iq);ced the door-~ open wi tp he:~ left :ha,nd so that she could guide the loaded tray into the rack; she lost her ' .. ., . ,: equilibrium, if only momentarily, -_and overreacted ,in her bqdily movements and fell· whilst still holding the load· .of scallops on the tray. That fall in those circumstances in the course of conscientiously doing that which her employer~required_ of-her was not -in my view so unexpected an event in: the ordinary q0t1rse of human experience as to be considered one.which was .fanciful or far-fetched or so unlikely to happen that one would never sensibly contemplate it.· Rather a consideration of the relevant facts and her description of them along with the formation in one's "mind's eye" of the event and bearing in mind the experiences of ordinary every day life leaves me with the firm . . view that a fall of this kind was a likely event or at least one not so unlikely as to be discarded from consideration. In short -- 9 of 19 -- 8 the· risk ·· of ,fallirig and suffering- consequential injury as a result of it was a real risk which was ciearly foreseeable~ The fact that:• the defendant's· mind was never ·turned to a consideration of it or -that· it was the usual way of doing the job or that the.defendant had others do it and still does in the same --way ( at least until recently) is quite beside the point. It remains -for the tribunal of· fact -- ·to determine what a reasonable man in the·position of the defendant ought to do by way of responding to the risk to his employee~ It was then said by Mason J. in Wyong Shire Council v. Shirt that that requires 0 a consideration -oC the "magnitude of the risk", "the degree of probalbility of its occurrence",· "the - expense, difficulty ·and·· 0 incbrivenience" i of -~taking steps to address the - risk. I >cannot sensibly- ,:avoid the conclusion that the :risk of - injury'--was substintial~ In thi~ day and age it is not unre~l to encounter a person· sustaining an injured back as the result of a fall initiated -by unusual bodily movements whilst supporting with one harid·:a not irisignificent load. It was a probable consequence of what•she hadto:do; at least there was a-real possibility that it might happen. In this connection the fact also emerged that the ·plaintiff-was wo"rking in the cooking area where· she might have picked up on her shoe some foreign material and also that the floor· near the 'cupboard· al though made -- of concrete was wet with condensation from the freezer. It was'not the plaintiff's case· that-_ the ·floor surface and its charact_er gave ·to the pla±ntiff·a cause-of·action but rather than when assessing the probability· of an occur.rence like· this,· the- envirornnent in- which the plaintiff'-had to-work was a relevant factor.· The adoption,·, 0 -- 10 of 19 -- C: 9 of - a system which. would- eliminate the risk was neither expensive, - difficult, · or inconvenient. Mr. Kahler in his evidence suggested a number of - simple expedients which would have readily removed the risk - the provision of a-shelf nearby on which to.rest the tray whilst the cupboard was opened; the provision of a trolley on which to carry_the loaded tray; the placement of- shelves adjacent to the deep fryer for holding the stock of scallops_·- and - the use of a _ sliding door were some practicable -alternatives which, in Mr. Kahler's view could easily have be~n-considered. Considering all of those matters and balancing the C- competing considerations it seems to me that one can confidently assert that the response ·of a reasonable man placed in . the_ position -of the defendant would be·to provide_ a system -~~ich would h~ve eliminated the need for the pla-intiff to have to,:b.ear the load and at the same time whilst holding it to -hav.e to.open ·c) the door in a manner which would ensure that it cleared - the tray. As Mr. Kahler said the cupboard door design and .the method of support required for the tray "were essential to_- the C: final damage". In my view the injury - to the plaintiff resulted from - the defendant's breach of duty to her. It was also submitted for, the defendant that the plaintiff chose to do what she. in - fact. did, that she could, had she wished, have put the_ loaded tray down on a bench, opened. the door and' then ~arried-the-tray to the opened.cupboard.- -These suggestions overlook -the_ fact•_ that_ the definition of the proper systemhad to be addressed.by the defendant and also the further -- 11 of 19 -- 10 . fact · that . the.· plaintiff· was .. simply · left ·,,to go aboμt the performance of her: daily work as quickly and as efficiently .. as she could. The submission also overlooks the fact-, which I find to be . so, that at that .ctime of• the morning -- the .. bench .tops particularly . near the sink were · likely .to · be cluttered .·with either washed or unwashed kitchen equipment.and utensils. The circumstances, as I find .them to be, do not,justify a finding of contributory negligence against her. , It- only remains for· me to deal with the evidence of Mrs. :o, Toole. ·she swore that she was working_nearby when her attention was -drawn to the plaintiff. by the noise. of the 0 cupboard door slamming. She said the plaintiff. had earlier, been Q in-- a- bad . mood · and· .that she, the plaintiff, had apparently slammed.the door after placing the scallops <in.the cupboard and that. the. •p:laintiff then., apparently deliberately, acted as if to feign,.a' .-fal.1 and that .she saw. the plaintiff then deliberately striking -her~ back on the door of the freezer. • I reject this version. of events as totally untrue. : Apart from the fact that Mrs~ O!Toole was:a poor witness who was obviously unfriendly to· O· the plaintiff, her ·'evidence is inconsistent with other eviden.ce. Q from Mr.·· ·c1arke who- appeared to be entirely impartial and was doing his best to record what had happened. I am .-satisfied that the·tray of scallops was never inserted in thewarming cupboard. Mr\ ·Clarke·said tha.the helped pick them up:off the floor after. the plaintiff had; fa.llen. and that, the tray·. was ·on or near the plaintiff when -she .was.; on• the floor. The, assertion that . the plaintiff was deliberately hurting or at temp.ting to hurt !herself by striking her·. back•.• against the. handl.e of, the freez,er .is. -- 12 of 19 -- _,.,...-----..., (_ I i I I ! ,! ' r-, II '---« 11 mischievous. It smacks of recent fabrication .. Had Mrs. O'Toole so asserted in the beginning, it is unlikely that the plaintiff would have received . workers' .· compensation since there is a statutory prohibition upon payment to any person who causes an "intentional self-inflicted injury": S ... 9(3)· of the Workers' Compensation Act 1916~1982. The plaintiff in my · view is entitled to judgment. I therefore proceed to the assessment of damages .. The plaintiff was born on 28th October, 1946. She married when she was 16 and is the mother of three daughters who are.now young women aged 26, 24 and 20 years respectively. ·They gave evidence as did the plaintiff's husband. From their· evidence one._ obtains a very clear picture of the plaintiff before she was.injured_as a devoted, energetic, happy wife-and mothe~ whose family life and whose personal relationship ~ith her husband was· in every respect emotionally and .phy.sically satisfying. She now appears to be a significantly disabled woman physically, whilst_ emotionally she is unhappy and appear~ to be anything but the type of woman she was. ,.Her marriage is in jeopardy and since the accident and as a result of it she.and her husband have separated for eight months.· I will return to thes~ matters later~ \ After her initial treatment on the day of the accident:bY ~ Dr. Carter· a general practitioner, she .continued, to see him because·of her persistent complaint-of pain. The plaintiff was unable to work and she was referred to· Dr .. McPhee in 1985 f;or chronic low back pain. In October· 1985. a spinal fusion at t_he . L5-S1 level was performed and .this fusion now r_emains. solid. -- 13 of 19 -- 12 After this surgery she spent many months in a full body plaster for two separate periods. This was intensely uncomfortable and inconvenient. She continues to complain of back pain and consequential disability. There is in this case one very relevant finding which is common to all of the orthopaedic surgeons. The plaintiff was found to have a spondylolisthesis. This is a spinal condition sometimes found even in young people and which may be either productive of back pain or symptomless. The medical evidence is to the effect that this condition - whether it was congenital in origin or not does not matter - 0 pre-dated her injury. I accept her evidence that before she was injured on 20th September, 1984 she had no pain or disability Q associated with her back. This is confirmed by the evidence of her husband and daughters as to her level of activity before ., _ .:. , .. ,P-,. · i -:- ;;. ., this day. I am satisfied therefore that this pre-existing condition of spondylolisthesis was aggravated and produced painful symptoms as a result of falling at work. It was this outset of chronic pain which led to the fusion surgery in 0 October 1985 and which is the cause of her present symptoms. No relief was apparent upon the successful completion of the spinal Q fusion. The dominant orthopaedic opinion is that the plaintiff's symptoms are now the result of "functional overlay" ·- although Dr. Sharwood's opinion concerning this appears to be more reserved. The picture becomes somewhat more confused by the evidence of Dr. James who in August 1988 reported that as a result of "a significant orthopaedic disability" she had developed a reactive depression causing- a· moderate degree of disability. In his view she was not exaggerating her symptoms -- 14 of 19 -- C (; 13 and degree of disability nor had she developed an hysterical reaction. However in his latest report dated 22nd March, 1990 he is of the view that she has a chronic depressive neurosis and because of it "she has probably overreacted to her back disability". To the extent that I can rationalise the various medical opinions I am prepared to find as follows:- 1 . That the plaintiff had a pre-existing spondylolisthesis 2. 3. 4. 5. which did not produce any symptoms or disability; That as a result of this fall she encountered persistent and disabling back pain; That in October 1985 she had a spinal fusion which did not provide any real relief of symptoms; That because of persistent pain and her reaction to the alteration in her lifestyle she suffered a depressive neurosis which involves an overreaction to her back disability;_ That with the successful completion of this litigation one source of her anxiety will be removed and improvement can be expected but that the prognosis for improved psychological adjustment remains uncertain. I make the further finding that the condition of spondylolisthesis may produce symptoms in any event and as a result of relatively insignificant trauma. Whether that may occur sooner or later is again a matter about which the orthopaedic surgeons are not in total agreement. The plaintiff resumed work after her marriage when her youngest daughter Tania was aged 7. At first she worked for Arnotts and then for Coles and in 1980 she went to work for the -- 15 of 19 -- 14 defendant at Rocklea. At first she worked from 5.30 a.m. to 11.30 a.m. and later from 5.30 a.m. to 1 p.m. She was a woman of extraordinary energy who devoted herself to the care of her husband and daughters. It is agreed on all sides that she did more than might have been reasonably expected of her in the home and her husband and children took advantage of this. The plaintiff, however, happily made her contribution to the requirements of the home without complaint. She nonetheless was very socially active with her husband and family. She played sports with her children, golf with her husband and involved her self in the frequent family outings. She and her husband described their personal relationship including matters of a sexual nature as enjoyable to a high degree. She was particularly conscious of her appearance and her figure and she exercised to maintain it. She was B½ stone in weight. and she . - . regarded herself as having an attractive figure. Her three daughters each present as particularly attr·acti ve young women with good dress sense no doubt influenced in this by their · mother and this provides one with some idea of the type ot woman she was before she was injured. She is now extremely overweight at about 11 stone, walks with a forward stooping gait, appears to be uncomfortable whether sitting or standing and generally presents as an unhappy and somewhat miserable person. Her capacity for housework is · now extremely limited and she does only the basic household chores, the heavier category of which.is quite beyond her. She can however bend over, can do the light wa:shing and ironing, some cle·aning and cooking. Her eldest· daughter is not at home C) 0 0 0 -- 16 of 19 -- .. C 15 now because she felt she needed her independence. The housework is now shared by her husband and her two other daughters at home with some contribution by herself. Iriher present state it is unlikely that she could maintain employment as she did before this accident. Any form of recreational activity or exertion is extremely limited. It is clear from the evidence that the picture of the plaintiff before this accident and afterwards is one of contrasts and from being a hard working active and attractive, fun loving, devoted wife and mother she is now an apparently anxious, unhappy, inactive, overweight person whose relationship with family members is strained and whose marriage (:: has an uncertain future. ('---.\ The . problem with the assessment has to focus upon the pre-existing spondylolisthesis and what its long term consequences may have been had the plaintiff not been injured. I am satisfied that it had been symptomless by the time she ,). : .. ,· .. attained the age of 38 years - her age at the time of the \__/ accident. I think it is probable that at some future time she would have had symptoms which would have had some impact upon c, her lifestyle. On the other hand I think it also probable that she could have looked forward to more years of the kind of satisfying life which she led when she was injured. She has now had her 43rd birthday and I consider that it is more probable than not that if uninjured she would still be working. On the other hand it is proper to regard her pre-accident spondylolisthesis as a significant discounting factor. It is also proper to assess her damages on the basis that the conclusion of this litigation will see some overall improvement -- 17 of 19 -- 16 in her condition which will permit her to enjoy life to a greater degree than at present. She will however be precluded from participating in any form of heavy or demanding work. For pain and suffering and loss of amenities, I assess the sum of $35,000.00. I attribute $15,000.00 of this sum to pain and suffering for the lasts½ years and allow interest on that amount at the rate of 6% per annum in the sum of $5,000.00. Her income tax returns, ex. 26, demonstrate an income which was rising annually and I have no doubt would have continued to do so. Her employment was secure and she was regarded by the defendant as a good worker. Exhibit 14 illustrates the nett amount she would have earned to the date of trial if permanently employed in accordance with the relevant award. For the usual contingencies and giving some weight to the fact of the ,·· .. :· pre-existing condition I assess for economic loss to trial the . ·} sum of $55,000.00. I allow interest at the rate of 6% per annum on $25,000.00 because the plaintiff received amounts by way of workers' compensation and also received social security payments - ex.· 12. •• () 0 0 · . For, the assessment of future economic loss I accept that if (J uninjured she would probably be presently employed and earning weekly the nett sum of $262.71 (see ex. 14). ·I should however dis.count .. more heavily for the purposes of this assessment given her age •and/or of course the usual contingencies. There is in addition the chance that she may be able to return to some light for~ of employment~ She would at best. have ·had 16 years of working life left to her but on account of the matters to which· I have referred-I propose to discount that by one-half .. I allow for future economic .loss $85,000.00 .. I allow special damages in the sum of $2,085.98 and allow -- 18 of 19 -- •. I / .. The evidence sought to establish a significant claim for the cost of home and domestic care. I am in no doubt that the plaintiff's husband and her three daughters now make a major contribution to the domestic needs of the household whereas pre-accident they did practically riothing. The circumstances make it difficult to quantify an appropriate allowance. The plaintiff can still and does some household work and needs assistance from time to time. It seems to me to be appropriate to allow some amount for what has been contributed· by way of unpaid domestic help and may be contributed henceforth. I am of the view that an appropriate allowance under this heading is r- ~/ $8,000.00. C' I therefore assess her damages as follows:- Pain and suffering Interest Past Economic Loss Interest Future Economic Loss Special Damages Interest Cost of past and future domestic help Hospital Expenses (see ex. 11) Medical Expenses (ex. 11) -Miscellaneous Expenses Fox v. Wood factor $ 35,000.00 $ 5,000.00 $ 55,000.00 ~ $ 7,500.00 $ 85,000.00 $ 2,085.98 $ 600.00 $ 8,000.00 $ 2,115.00 $ 2,971.8.0 $ · 216.50 $ 4i717.79 $208i507.07 The plaintiff received from the Workers' Compensation Board $24,105.11 nett and a lump sum of $5,470.00 the total of which has to be deducted from the above. : I therefore.give judgment for the-plaintiff against-the defendant for $178,931.96 with costs to be_ .tax~d. -- 19 of 19 --