Arriaza v ANI Corporation Ltd [1990] QSC 75

10 0~vo. V . I L· 30 ciI ,1 'i ~ ~w II / I 50 60 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BEFORE JV!R. JUSTICE CARTER BRISBANE, 6 APRIL 1990 No. 1243 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: JORGE ARRIAZA -and- TBE A.N.I. CORPORATION LIMITED JUDGJV!ENT Plaintiff Defendant BIS HONOUR: In this matter I give judgment for the plaintiff against the defendant for $276,401.37 with costs to be taxed. I publish my reasons. μ. -Govt. Printer, Qld. 1 10 20 30 40 50 60 -- 1 of 19 -- I 'I!• I C' C· c· IN THE SUPREME COURT OF QUEENSLAND Before Mr. Justice Carter No. 1243 of 1985 BETWEEN: JORGE ARRIAZA Plaintiff THE A.N.I. CORPORATION LIMITED CATCHWORDS: Counsel: Solicitors: Defendant REASONS FOR JUDGMENT - CARTER J. Delivered the 6th day of April, 1990. Mr. M.W. White Q.C. with G. Egan for the Plaintiff Mr. G. Gibson Q.C. for the Defendant Walsh Halligan Douglas for the Plaintiff O'Shea Corser & Wadley for the Defendant Hearing dates: 21st, 22nd and 23rd March, 1990 -- 2 of 19 -- ' (' C ;j C i I C : ! IN THE SUPREME COURT OF QUEENSLAND BETWEEN: JORGE ARRIAZA THE A.N.I. CORPORATION LIMITED No. 1243 of 1985 Plaintiff Defendant REASONS FOR JUDGMENT - CARTER J. Delivered the 6th day of April, 1990. The plaintiff was born in Chile on 16th December 1955. He married his wife, then aged 16, in 1977 whereupon they went to Europe to live and work and during the next five years the plaintiff worked in Luxembourg. He was in constant employment although employed by different employers. By 1982 the plaintiff's parents and at least another brother Michael had migrated from Chile to Australia and accordingly the plaintiff with his young wife and child chose also to live in this country. Michael had arrived in Australia in 1974 and before the arrival of the plaintiff was and had for some time been in employment with the defendant. Michael arranged employment for the plaintiff with the defendant shortly after the plaintiff's arrival here. He arrived in January 1982. By March 1982 he had obtained employment in the defendant's engineering business at Sherwood, a Brisbane suburb. -- 3 of 19 -- 2 I am satisfied. that .the plaintiff· who was ·• intent upon establishing a home for himself and his family in this:country was a hard worker and from the beginning of his employment with the defendant sought and·. obtained considerable ov.ertime. In the · course ••Of his employment with the defendant on 16th June,· 1982 he was injured and he ;has not worked since. · To put the matter in simple terms the plaintiff injured his back~· Of that I have no·doubt. He has not been able to work since.· During the.last 7½ .years or so he has ·passed through the consulting rooms of many medical practitioners·· from whom there has emanated a variety of opinions ranging, •.on. the one. hand, from opinions which. do not question the .integrity of the plaintiff to, on the other, the. view that he . is guilty of . exaggeration and feigned clinical· responses;. ·The, mediaaJ... evidence. is confusing,, contradictory and in °0:r:i.e .relevant .respect .. inconclusive. I will need to deal with, it·• ,,later. First-ly however it is necessary to turn to the circumstances in which he was injured. For the defendant it-is not admitted that he was. injured in the circumstances which _he alleges,in the statement of claim and apart altogether from the 0 0 0 issue of negligence or breach of duty, the defendant's, case was Q based fundamentally upon my acceptance of the evidence of one Petrie the defendant's foreman who does not recall the plaintiff being injured although he seems to recall the event in question in,course of which-the.plaintiff says he hurt,himself. -The: plainti,ff. spent a long time in .and out. of the witness box· whilst the many doctors were in•terposed··in the course of his evidence .. ' My . overall- .·. impression , of the . plaintiff. was: 'a favourable one.·". He impressed -me· .as a young man, who was intent -- 4 of 19 -- C on ·.making his way in•· this· country . and I have. no hesitation in accepting his version of what happened. The fact that he was injured at work on the day in question is recorded in material kept by the defendant. al though that brief _ and very sketchy material does not. accurately reflect what in fact happened. A part of the workshop floor had been fenced off as a storage area. The plaintiff said the fenced off area was square or rectangular; the witness Petrie said it was triangular .•. Nothing turns on this. The plaintiff says he injured himself when a large cupboard used for storage purposes was. being ·put·· into position in this area. Petrie says such a cupboard was put. c\ in to that area but in a different place from that stated by,the. plaintiff and furthermore, that there was · no . need. for the., plaintiff to have to 'do that which .he says he.:was doing,:-,whe.n.h.e .• suffered the injury which bas. been _productive of such .diverse medical opinion. The plaintiff however says that Petrie .was. watching - and directing him and another worker when· he ,-wp.s. injured. I accept the evidence of the plaintiff ·that. an overheadl ( ' ,_, crane in the factory, which operated along a gantry, was used,to lift the cupboard weighing about 57 kilograms from where· it had been to,~ place within the storage area. The. cupboard wa~_1800 millimetres tall, 9.15 millimetres wide and 450-millimetres deep. According to the .plaintiff~.it was not possible for the crane to deposit the cupboard into the desired position. _because of the nature of the overhead.structures and because of the dimensions of the crane ,itself -and in particular the position of the crane's_ hook_ in relation to the extremities of· the crane mechar:iism. -- 5 of 19 -- 4 Accordingly it could not ,deposit · its ... load p:r:ecisely . into the place where .. the P:lainttff was directed to, -place it ... This. evidence is confi_rl'(led by that of Boris Smolokovs- an -engineer who visited -the site and who explained in his -evidence the--reasons why th~ . cupboard · could not have been depos-i ted in the - exact position to which:it was to be moved., I accept this evidence of Smolokovs~ .Accordingly to his and the plaintiff's evidence the cqnstraints upon tn.e .overhead movement of the crane and the nature,of the load in this case meant _that the closest pos;ition· on;•the floor. _to which the crane could let_· down .its load w,as about three metres from where. the cupboard had to be placed. · According to. the_,plaintiff it.was whilst he and another person were,,trying to ,-shij;b the cupboc.1rd the. extra distance to the desired position tl'}.at·)}e il).jured -n.:i;~ ):?ack. · '· .... : .. _,. -~-- ... , .· ,-.. . .u: .... .., · ,: ::· The floor was made of. concrete; the cupboard Wc;LS ma.de , of s 1 teel.; ;i. t. was.- _not possible to push it along -the· floor. There for~ the--plaintiff attempted to shift. it by bending down, putting his hands underneath one end of it and then attempting to lift _it 0 0 0 into or: partly. into the desired- position. . Whilst he was li£ting this-:,cupboard- in that way he suffered .a severe ,pain in his lower Q back. He says ,that -Petrie was watching him and-the other worker. from outside the wire fence .. I pause to mention that· at the :time the:plaintiff could not .speak English; At the present .time_ he has:a~poor command oft.he English language and-frequently needed the assistance of an interpreter when giving evidence.·· The other pe+son engageo in -the. operation was not identified.·• · · When he hμrt himsel.f he. immediately. presented himself to, the f:irst ·aid· officer employed,.·bY .. the. defendant. , . That person, was· -- 6 of 19 -- 5 Mrs~ Mavis Jose~hine King who gave evidence for the plaintiff. She recorded iri- the-·log-book that at ·1.30 p.m. on that day the - plaintiff repo'rted that he had had·a "back-strain". The same book records the reference by her of the plaintiff to·a medical officer on the next day. She recorded also that the plaintiff. was injured whilst "lifting plate". I am satisfied that ·this description of the relevant·incident is inaccurate and that that· was the result of-poor communication between the plaintiff and herself .. She also filled out the forms for the Workers' Compensation Board. The plaintiff could -not-write English; However in my view-these apparent discrepancies so much referred: to on behalf of .. the defendant are adequately·explained because of the -plaintiff's very· limited capacity to communicate ,in· English. Mrs. King had the plaintiff's-brother assist her·1n- meeting · the; problems of communication. - · -He also - spoke only 1-imi ted English. Nevertheless she understood that he had injured· his-back whilst lifting steel plate rather than a·large cupboard· built of steel or other metal . . - I .am satisfied and I so find that in the, course of hi·s: C employment with the -defendant on 16th June,: 1972-the plaintiff injured his back when he was attempting to shift the cupboard the relatively short distance into its final position. I prefer his evidence -to that <of Petrie whose evidence was -given somewhat;- casually and I .am satisfied, with little or no·recall-of-the 0 day- in question. The next question, must there-fore be· whether the injury' and its·consequences,were.caused by the:negligence of the defendant. The cupboard was a Large:·one and it was heavy and cumbersome and -- 7 of 19 -- ----------------------~ ---------- 6' it-weighed about·57"kilograins. More importantly in my view it was awkward · to shift·· and it· was not possible to - push· 'it into place ort the conciiete-£16or. · The plaintiff and his cd-worker pushed ·one side so· that it: li'fted of·f the floor and then put a: small object ·underneath ··it to' hold it off the· floor; similarly· with:the other side. · The plaintiff then attempted to lift it whilst bending over and placing his hands underneath one ertdof - the '.cupboard. When he took the weight he felt severe pain in his back and he had· to desist. ·Tt is in ·my view obvious that· the plaintiff must necessarily have bent down and over in order'to. get his' hands under the load· the centre· of which was some,. distance from his body. When lifting it, it was exceedingly difficult to keep his back straight to take the load. · ···The .medical ev'idence,"':hn,1 parti-cular ··the evidence cif Dr~ Anderson is to 1 the'effect·that·there was a risk that the plaintiff'·s back might' be> injured in · this process. · ·He· ·described: it'~ as' "kirtdergarten mechanics". Mr. Smolokovs· gave a more complex and· a''suppo·sedly ·expert' view of the risk of back -injury· associated· wi'th a lifting manoeuvre of this kind. In my view there was a foreseeable •risk tha't · if persisted in, the plairitiff might injure his ·bat:k. · in .. 'at:tempting· to lift and carry -the weight · of, this· cripbciar~ over thi distance it had to b~ shifted.' The risk~of injury ·to the· plaintiff was ·more than· a· "remote" or ''fanciful:.,_: one. (The Council of the Shire of Wyong:v. ·Shirt&·ors:· (1979- 1980) ·146 ·c·.L.R.· 40.) · It was-·in my.view a very real one and the onset of the injury arid'·the ·sudden pain associated with it was foreseeable. -· -·' It ·was·. 'reasonable for: ·the · employer , to : have recognised that risk: and· to have instituted a ;sui·table system-of: 0 0 0 0 -- 8 of 19 -- C C 7 work· which would eliminate, that risk of injury. . There ·were • obvious and practicable alternatives for, doing the job safely and. without the risk of injury to the plaintiff._ .These are detailed by Mr.. Smolokovs . .in a report which was. tendered. The movement of the-• cupboard over the required distance: could. have. been achieved without the need at all for the plaintiff to·lift or to attempt to lift it - by the use· of pipes or rollers,. by a trolley. or by using straps of the kind used by furniture removalists ., .• Rather I am satisfied that the plaintiff and his co-worker.were left. to their own resources and Petrie,. who. I.am satisfied .was . present, merely assumed the role of a spectator rather than of a., supervisor concerned to ensure the implementation of, a. safe system of work. , . I~ .my ,yiew_ the injury suffered ,by 1 the_ pl.aintiff .. wa~ Cp.Us.eo., ... . ~.. . ~ . . . "') . . ' ... , . . . . . . . . ... -~ - .... .•..,. .... . . . .. " by the _negligence of the .defendant in failing to provide a saf~ .·. system for the removal of this large heavy and cumbersome steel cupboard. I can find no basis for a finding of cont.J;ibutory negligence on the part of. the plaintiff ... The plai~tiff .0 \-l' __ as I. am .. satisfied intent. upon. the job which he had been required to do_ •. C He approached it in a conscientious manner with his mind focμsed, on that which he had to do and intent upon doing .what he had .to. do as best he could. , Therefore there is .no scope in my view: .for finding him to be negligent on the basis of his failure to t.ake care· for h_is own safety. - - I proceed then _to _the more.difficult question which.concerns the. assessment of. ttie1plaintiff's .damages ... He was .rising 27 years of .. age when he .was injured .. He ,lives, with his wife and-now has four children. · I have referred . .to his. -- 9 of 19 -- 8 employment · in Europe and· to· the fact that his first job .. in Australia was with: the defendant for •. whom · he ~worked for approximately three ,months as an iron worker- before he ceasefr- employment as a -.result. of this accident on 1 6th June, 1982. · · On the next ·morning he reported.again to the first aid section and he. was ··referred 'to a- medical practitioner. . He was then in considerable pain as .sworn to by his brother Michael and his· wife. : : ·· ': ·. ' The·. ·report· of · Princess Alexandra Hospital details: his condition·and medical treatment in the months immediately after the: accident.• About one month later he was admitted to · that hospital because.• of. :persistent low back pain. He - had · had physiotherapy without ~any relief of · his symptoms. . He had corr.ip.;J..gi~ed.·. of .. l.ow_.;hack,\ .. pa,ii;i :rq.diating · into his :right buttock; right thigh- and right calf. Whilst in hospital-he was placed in traction with· some relief. After his discharge there was some improvement,but·painpersisted and he was-seen regularly·at the Orthopaedic clinic at-that hospital. On 1st November,· 1982.his symptoms·, had not•· improved much with physiotherapy. Straight :leg raising was-limited i·to•40° and a myleogram was ordered. This disclosed compression. of the right LS - S1 nerve root by a lateral 0 disc protrusion. In• February. 1983 he underwent a lamihectomy. ' For- seven :months after · the -operation he had physiotherapy· but continued to get . back· and leg pain which st-eadi1y .got worse.·· When Dr. McPhee ·saw him in May 1986 .the pl.ainti,ff·• had -at.tended··for., rehabilitation at. Taringa. He was then •-complaining·. o-f ,constant ,back pain. and. right ·leg ·pain~ Dr'.; McPhee's:.v.iew in May;·· 1986,was that ~,the·.laminectomy ·had 0 0 0 0 -- 10 of 19 -- c: C 9 appeared to· exacerbate the symptoms. In his view the only chance of relief was.by way of -a spinal· fusion but as he said in his· evidence· there was at best only a 50/50· chance that this would improve his condition.• His prognosis in May, 1986 was 11for some decades" of chronic low back pain and right leg pain and that in any event he would not be. fit for heavy or moderate .work., In September 1987 Dr. McPhee had placed before him a .report: of• Dr. Martin which asserted exaggeration and feigned symptoms ·on the part of the plaintiff. Dr. McPhee (ex. 6 ). rejected the suggestion and said that there was no evidence that the plaintiff had "inorganic signs ·of low back pain". : In his view his· examination was consistent with instability due to dise disease. following discectomy .. In his professional judgment 85 .per cent of patients., like, the . plaintiff, _dev.elop .. LQJlg-, .term back::. pa:i,.n~ He considered .the-plaintiff to be genuine and"capable of only- s-edentary rather than laborious work. By the time Dr. McPhee · saw the plaintiff in January .1990 the latter was showing '·'some clinical signs of functional overlay" which had emerged since his. previous examination ·in·May 1986. Of the orthopaedic surgeons. who · gave · evidence I · regard Dr. McPhee' s .evidence as the most acceptable. I was impressed by his expertise which has·· been developed in this ·specific area of orthopaedic surgery.. Back surgery is now his speciality and has been· for- some time~ .. I.am confident-therefore :that his .view is entitled to more weight than that ,of Drs. Martin and Anderson both of whom tended to conclude, perhaps too ·hastily., that the plaintiff ,had ·no organically based . disability but only: a psychological one which Dr-. Martin: thought involved exaggeration .cand. some ·measure of deceit. · In. this. -- 11 of 19 -- 10 assessment of;•the•.medical evidence I have ·attempted to test.the competing opinions ·· against facts which are._ demonstrably true. , The plaintiff was obviously a hard and consc:i.entious worker. . He had every reason to - remain in gainful employment. Apart from·_ being the sole-breadwinner and the sole support of his·wife and young family-he,- like other members of his family, was intent of establishing himself in his new country. He accepted as much overtime work as he could and he even kept diary entries which recorded the ·hours he worked. This does not objectively suggest one :who is poorly motivated for work or who - for no reason or because of some superficial reason is intent on quitting the work· force~ i .. Clearly, through 1982 and 1983 he was.- in the regular care of-,thei:Princess -Alexandra Hospital and had had .back surgery." By m-id+-1-986--when seen by 0 ·nr~ ·~McJ?hee the latter had;·no .reason. to doubt the :sincerity of the plaintiff or that he had a significant back disability. He had in. mind further surgery which the 0 plaintiff is now-happy to undertake in order to·-get relief. In the.few years since i1986 Dr. McPhee has -seen the- intrusion-of. purely• ... psychological factors. which are·· not - explicable. by:, any. organic cause .. · On the other hand I am satisfied that it is ·more: 0 probable than not that the·plaintiff has sustained an-injury in the- LS·, -- ·s1 region with appropriate symptoms which include cons:tant: .. back and . right · leg · pain -· and which are extremely- disabling _ · My .observations of the-. plaintif 1f in court were. I believe-persistent·and.thorough. He is obviously.disabled. He manife·sted · obvious discomfort even when hi.s mind was .. distracted· · by- the-- course of his- evidence either in ·1 chief ·or in cross.:,, examination.. He ·,aid not· appear to me to be, obviously feigning -- 12 of 19 -- C: C ~.,: --., •.· 11 symptoms for my -benefit .. , Because of .. the· competing assessments · of him 'by the doctors I .paid close. attention to· him. , . To the· extenL that· my lay mind could validly assess the genuiness. or otherwise of his presentation I was left,with the view that he was. genuine. At. the same time. I consider it likely that many years of persistent pain, frustration and a somewhat miserable lifestyle has taken its toll and has made.him more introspective and prone to concentrate on what has happened to him. That is. hardly surprising, but the fact remains . that . the so-called "overlay" has been the product of an underlying organic .injury which in his case may have produced symptoms more extensive than in the .case of another.. I have concluded on_ balance that· -he. suffered an injury to the LS - S1 area which required surgery and which., has been. productive· of long. term· pain and ·c:discomf.orb a:cidi, of " disabling, . symptoms . which have affected· ·remarkably : his lifestyle and.his capacity for work. Dr. Douglas who is a .specialist rheumatologist also:· gave evidence. Dr, Douglas acknowledged that · a neurologist;:· orthopaedic surgeon or neurosurgeon would be better equipped· than he to undertake any_appropriate surgery and that the assessment of the pathology underlying the plaintiff/ s symptomatology, i.s within,the area of expertise of such specialists. However Dr .. · Douglas examined the. plaintiff on 20th.•November, 1985 and again in November ·1989 and his observations of.the plaintiff on those occasions . are. helpful.~, His unequivocal view. -is. that-. the plaintiff has. an'.organic; lesion ·in· his _back .which .requires further investigation~ : c.'l'here. were .. three 'reasons . for· his conclusion·; • firstly·, .. the fact · that: his histO+Y of symptoms was. -- 13 of 19 -- 12 identical over the period· of time when he' saw the plaintiff - : he described the · quality' of the pain as real• and· unchanged - secondly, ·.that' the reduction in· the right ankle jerk over that-· period·· indicated-· a progressive neurological lesion and thirdly, there was reproducible~ pain on clinical examination. Dr. Douglas- was obvi6usly di~satisfied with the validity of the expressed vie·w of other d'octors concerning the plaintiff -in the absence of · more detailed · investigations being undertaken which he identified. This serves only to complicate the--making of proper findings · of fact when: a well qualified medical practitioner asserts the· need for further scientific testing to determine the cause of the plaintiff's complaints. Dr. 'Doug·las· had no doubt that the plaintiff was in pain. His major concern was' ·to identify·:its catise·so as to·permit of the appropriate treatment .. Th:a t. however has not been done . One other significant fact emerged in the course· of this evidence and that· is·· that the 0 0 p1aintiff has·for a·lon.g time been prescribed Indocid for pain relief; He now· di'gests more than 'the prescribed· quantity and is li'kely on that account· 'to have suffered· some· form of· abdominal trouble~· · The ·evidence of his brother and of hi·s wife is 'very Q sfrongly ~ug~~stiv~ of the plaintiff's having·sufferedj for·a long tiine, severe · pain and discomfort which has · completely disrupted his•personal•life and his total lifestyle. I have no reason to doubt their·evidence as each of them appeared· to-me to be' 'perfectly. sincere and genuine historians who exhibited· obvious concern ·for·· the ·plaintiff's we'lfare ·and ·his future. ' r am therefdr--e· 'sat'isfied that the plaintiff has suffered a serious - back· '•injury · wfrich has left · him ·with . a ·signifi·cant -- 14 of 19 -- c: 13 disability. This injury and its,consequences. are .organically based and have themselves been productive of symptoms. which have been accentuated by psychological . factors. That is not. to minimise the fact that the plaintiff has for some_years and will continue to suffer disabling. symptoms . which will . affect . his future lifestyle and working capacity. Finally_! need.to.refer. to the evidence of Dr. Cameron which I found to be ,.perfectly unhelpful. In the final result I was confused by her ev.idenGe which seemed to be essentially equivocal.. The content of her. report,is intelligible enough. However in evidence.she was. shown other medical reports.which she had not seen and which seemed_to, C" her to be at variance with reports which she had seen. In.the. result it seemed to me that she was more intent on adopting a pos-ltion .. ,wh~ch. was .or ; open-:;ended and . quite • - • .. . . ·Ii; ~ . -~ _, .. ! ... . • . ~. •:· ..-.• ' ..: ..., . ·i . -· hypothetical., In short .. I am not greatly a_ssisted by her eviden(?e although I am satisfied that the pl.aintiff's medical .condit;i.on_ is aggravated by matters .what were described in the ~vidence i~ many. ways but which· seem to be psychologically based factors.. ., I am satisfied that the plaintiff cannot now do many o_f the r· simple household chores which he always did, like, mowiilg, h.is''-..,/ lawn. His . appreciation and . enjoyment of _,the .simple ameni tie::;. of .-life has been impaired ... He cannot sit ,for. long and ca11i;iot spend. a lot ,of time in. a motor. vehicle. - .. He ..cannot enjoy, the society ,of- his children -in:. th.e. way he would have. liked, .He i.s obv_iously distressed by this and whils.t. in the .. witness. box:.. was · obviously upset .. at; .his. inability to. ,play . freely wit.h, his children... He, is: now .. in receipt, of an invalio. pension .and his current state of_ health.is. tp.e result of organic bac,k injul,'.'y and -- 15 of 19 -- 14' a ·consequential depressive •neurosis., In·June· 1982 he was a hard working :newcomer to this country... Today .. he is . an invalid pensioner··depressed and unemployed. He'has had -the assistance of his wife and brother who now. do for him many of the things he used to do for himself. • I-must say however that'the evidence in this respect, is somewhat vague and:lacks d~finition and in assessing·damages on that account I propose· to. adopt a total figure which will .-reasonably reflect that item of 0 loss. I am not sufficiently ·confident about the detai·ls of this loss to attempt• a precise calculation. ·:I will allo~ $7;soo~oo under· fhis heading inclu~ive of interest that being' the-figure suggested by Counsel for the defendant. ·I· de:al· now· with the assessment of. the plaintiff's economic loss.· As·to the·past I am satisfied that it is proper.to-assess damages·- under this· heading on the assumption that he has been unable' to·re-engage in his former or like style of employment. rt·is 'agreed that the -defendant's factory later closed down and that ttle last-efuployee was retrenched on 20th September, 1984. From that it follows that the plaintiff would have been off work for>·some ·· periods whilst obtaining other -employment. He is unskilled and· it· is · therefore probable that · he would - have su'ffered · some ··periods of· unemployment.· · These factors and :the usual contingencies are -discounting factors •to which effect. must be'· given in the assessment. Exhibit- 1 9 shows the earnings of a . grfi1der under the• Retail Industry .. Award from -the time of the injury: to the present. : For the· plafritiff an assessment has been made. which assumes· that the plaintiff would have -- always worked a 38·hour week and·-averaged '5.125 hours weekly.•' An assessment 0 0 0 0 -- 16 of 19 -- ,. 15 of. past economic _loss.· on this basis is too generous. Whilst I am satisfied that the plaintiff worked a lot of overtime in the few months for which he was . employed by the .. defendant the continuity of it was suspect. Its availability_ would be dependent ·· on many factors - both . personal and related to. his employment such as the. prospect of an economic downturn ..·• The. fact that the defendant closed down its works.in September 1984. is not - wi thoμt significance .. The nett _figure suggested of $101,493. 42_ should be . reduced by about 1 / 5 to dispose of the overtime compon_ent. That would leave a .·_ figure of about $80,000.00. He was paid unemployment benefits in the sum of c= $19,671.29. That sum has to be deducted. Taking account of the other factors .which are inherent in an a~sessment of thi~ kind I .awa~d- the plaintiff $55,000. O_O fgr past _e~pnoi,nic loss. He received.Workers' Compensation payments in the sum of $11,683.06 less tax in the sum of $2,084.43. I would allow interest at the C C rate of 6 per cent for approximately seven and one half ye.ars.on the. sum of $45,000.00. $20,000.00._ I. allow for interest the sum of The _future economic loss assessment is ,somewhat more c::omplex., It raises again the questions dealt with in the.medical eviden_ce. I . am satisfied that there . was. some deg~ee : · of degeneration apparent in the ~elevant disc when the operation w,as performed. The usuc;i.l. evidence was ,given and the usual submissions made that therefore -the plaintiff may ha_v_e. su~fered disabling back symptoms sooner or later in_any ,event .. This has to. be regarded • as , a- disc.ounting factor alongside the usual contingencies which-are relevant in the assessment of his. future -- 17 of 19 -- 16 economic loss. - Furthermore I 'am satisfied: that the plaintiff sti'll has a capacity albeit a very limited one to engage in light forms of employment which will be remunerative. However heavy or moderately heavy forms of employment.are no longer available to him~ He is unskilled and he will therefore have difficulty £inding·suitable employment within his capacity to work. He is now aged 34 years and could normally expect another 25/26 years of working life. In my view the various contingency factors which are referred to above including the prospect of some future earnings· can be adequately catered for by my reducing the number of· lost· 'years to· 15. · His current nett weekly earnings as a grinder exclusive of overtime would be approximately $260. 00 and for the purpose of the calculation I will use the 5 per cent tables. The present value of $260.00 per week over 15 years at 5 per cent interest per annum is $144,300.00. I assess future economic loss at the sum of $145,000.00. There is in addition the cost of future medication and medical treatment. I am uncertain as to whether the plaintiff will have the treatment referred to by Dr. Cameron. He will 0 0 0 (~ however require continued medical treatment and medication. I v do not propose to allow any specific sum under this heading as I have taken it into account when assessing damages for pain, suffering and loss of amenities. I assess damages for pain and suffering and loss of amenities at the sum of $50,000.00 and apportion $20,000.00 for pain and suffering to trial. -- 18 of 19 -- . --\... '- .- ,,, -..~ 17 In. summary I assess the damages as follows:- Pain suffering and loss of amenities Interest on $20,000.00 Loss of Income (pre-trial) Interest Future economic loss Cost of domestic care Special Damages (as per ex. 22) Fox v. Wood component $ 50,000.00 8,500.00 55,000.00 20,000.00 .145,000.00. 7,500.00 3,235.98 2,084.43 $291,320.41 Deducting the amount refundable to the Workers' Compensation (, Board I therefore give judgment for the plaintiff against the defendant for $276,401.37 with costs to be taxed. -- 19 of 19 --