Bowman v Nominal Defendant (Queensland) [1991] QSC 2

10 30 40 50 60 f R~VISED CC1 Pl.'.:3 :SSUEO i Court Raoc,,:::i;-, EL!rG2U ! . . - IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION i Dr. ,e, 2 ~!)~,./! °t/ . No 12 of 1987 Sv BEFORE MR JUSTICE DERRINGTON BRISBANE',: 9 JANUARY .1991 (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: GARY FREDERICK BOWMAN -and- THE NOMINAL DEFENDANT (Queensland) JUDGMENT Plaintiff Defendant HIS HONOUR: The action is dismissed with costs. I publish my reasons. G 214-Govt. Printer, Old. l I 'l l ., 11/00 10 20 30 40 50 60 -- 1 of 22 -- IN THE SUPREME COURT OF QUEENSLAND BUNDABERG DISTRICT REGISTRY No. 12 of 1987 Before Mr. Justice Derrington BETWEEN: GARY FREDERICK BOWMAN AND: THE NOMINAL DEFENDANT (QUEENSLAND) JUDGMENT - DERRINGTON J. Delivered the 9th day of January, 1991 CATCHWORDS: Plaintiff Defendant Negligence.- Motor vehicles - Nominal Defendant - Unidentifiedvehicle - Allegations not made out - Inferences open - No inference of existence of other vehicle or negligence of driver from mere fact of accident - Damages - Quantum - 32 year old man - 38 at trial - Garbage collector - Minor injuries to shoulder and leg - 10% p.p.d - Serious closed head injuries - Unconscious three days - Irrational and uncontrollable 9 months - Care by family - Residual damage moderate - Functions adequately but unemployable - Damages $539,640.00 - General damages $80,000.00($30,000.00 to date of trial) Counsel: G. Crooke Q.C. with A. Williams for plaintiff D. Tait for defendant Solicitors: Payne Butler & Lang for plaintiff Finnimore Walters & Story as town agents for Gadens Ridgeway for defendant Hearing dates: 14th and 15th November, 1990 -- 2 of 22 -- IN THE SUPREME COURT OF QUEENSLAND BUNDABERG DISTRICT REGISTRY BETWEEN: GARY FREDERICK BOWMAN AND: No. 12 of 1987 Plaintiff THE NOMINAL DEFENDANT (QUEENSLAND) Defendant JUDGMENT - DERRINGTON J. Delivered the 9th day of January, 1991 The plaintiff was injured when he drove his vehicle into a tree which was off the right-hand side of a long straight stretch of country road at about six o'clock in the evening of 11 th April, 1984. The impact caused some damage to the front of the vehicle but was not particularly violent. Indeed, apart from serious brain damage from closed head injuries involving his frontal lobes, the plaintiff's injuries were relatively slight consisting of a fracture of his clavicle, some neck injury and a blow to his knee. When he was found by the police some three hours later, he was still seated, unconscious, behind the wheel of the vehicle although he was not wearing a seat-belt. Despite the very serious nature of his head injuries, he gave in evidence a remarkably clear account of the accident which he said involved another vehicle which cannot be identified~ While conceding due enquiry and search, the Nominal Defendant challenges that there was any such other vehicle and posits -- 3 of 22 -- 2 various other explanations. for the accident, particularly but not only bearing upon the very bad condition of the plaintiff's vehicle and its vulnerability on such a road. Alternatively, it is suggested that the plaintiff may possibly have swerved to avoid a kangaroo or another such animal of the kinds which are known to inhabit the area and come out at dusk. The Nominal Defendant does not attempt to prove these things but presents them as hypotheses which are well open on the circumstances in order~ to frustrate any attempt on the plaintiff's part to establish an inference of the presence of another vehicle and the negligence of its driver from the mere fact of his having run off the road. His account is that he was driving home from work after having consumed one stubbie of beer there at the end of the day and having been given another to take with him. He knew the road very well. As he was driving along this straight stretch of road, he noticed ahead of him a vehicle, which he iaentified as a blue coloured Kombi van, enter the road from a side road on his right and travel in the same direction as himself at a speed of about fifty kilometres per hour. He says that he was travelling at about sixty kilometres per hour. He had his lights on because it was dusk, but the vehicle ahead did not have its lights on. He says that he followe~ it for some distance as he overtook it until, consistently with the courtesy shown on such country roads where the bitumen strip is too narrow to enable two vehicles to pass· on it, the vehicle ahead moved to its left and partly onto the gravel shoulder as it continued on its way. Assuming this to be an invitation to pass, he said that he gave a signal with -- 4 of 22 -- 3 his traffic indicator light and began to pass, but as his front wheels were about in line with the rear wheels of the other vehicle, it began to veer to its right. At this time he was travelling with his off-side wheels on the gravel shoulder on. the right-hand side of the road, and the manoeuvre of the other vehicle forced him to veer to his right until both of his front wheels were off the bitumen and on the gravel shoulder of the road. He said that he remembers that loose gravel caused him to lose control of his steering and that is the last of his memory. He was found later with his vehicle hard up agai~st a tree. The police officer who found him said that his vehicle would have been slowed by the nature of the terrain prior to its hitting the tree and this would help to account for the relatively minor damage .to it. After the accident he was unconscious for three days and then in a very sad state of mental disorder,. intellectual unawareness and lack of control until about the following November, some five months after, when he addressed his wife by name and spoke lucidly for the first time. However, his present recollection does not commence until the following February when he says that he seemed to awake as from a sleep. He asked of the absence of his· wife's grandmother. who .had died in the previous November. More importantly~ he says that he then had a full recollection of the accident as given above right up to the point where he lost control of the vehicle, apparently very shortly before colliding with the tree. After that, he is said to have made a "marvellous improvement", though he remains -- 5 of 22 -- 4 amnesic for the.post..:.traumatic period to that time.· The defence challenges his capacity ·to have any true memory of the accident.· His difficulty is that his own medical evidence is strongly of the, opinion that given his history of unconsciousness and post-traumatic amnesia ~nd their degree, it is of a very low order of probability that he could remember anything within hours or even days of the accident. This view is generally confirmed by the defendant's neurologist. When pressed by his counsel on the point, Dr. Cameron, who was his own neurologist and who was clearly the most qualified and impressive of the witnesses called on this issue, acknowledged that he could not exclude the possibiXity that the plaintiff could remember the accident, but although his expression was obviously restrained he made it clear thab he' admitted that possibility only as a qualification against absolute scientific certainty. He was content to speak in terms of high improbability. From his demeanour associated with his responses, it· was also clear that he did not believe that the plaintiff could have had such a memory on any reasonable view of the matter. The eTfect of his evidence was more emphatic than the written word reveals. Further, he thought it even more unlikely that the plaintiff would have any memory for fine and continuous detail, if any recall at all were admitted. This, of course, is cohtrary to the· plaintiff's assertion of detailed memory up:to.a fraction of •a second before his injury. Dr. Cameron mentioned various possibilities accounting for an honest belief by ·the· plaintiff in what he said. These explanations include ~on£abulation in the sense of an innocent fictional creation in the mind of a set of circumstances -- 6 of 22 -- 5 experienced after and perhaps because of the accident. This phenomenon was also adverted to by Mr. Weston, a psychologist also called by the plaintiff. It can be so vivid as to convince one who experiences it that it is the true version of events. Another explanation of a similar kind referred to by Mr. Weston is the phenomenon of nightmares which can have much the same origin and effect. Another possibility which Dr. Cameron has noted in a number of other cases of similar amnesia through brain damage is that the patient picks up suggestions made by. others and feeds them into his memory as if they were true. There is of course also the possibility of ordinary rationalisation, which does not require a head injury for its existence but which would obviously not be impeded, but rather enhanced, by it~ Relevantly to this it may be noted that the plaintiff was engaged in medical and other assessments for workers' compensation as early as October 1984 and that· his solicitors were gathering medical evidence as early as November 1984, that is, prior to his having any recollection of the accident at all. Of course, the latter enquiries may have been for workers' compensation purposes, though it is difficult to understand why it should be so. Alternatively it may have been in anticipation of an action against$omebody, though that was premature and optimistic in the circumstances at that time but it predicates the prospects that an allegation would be made of the negligence of an unidentified driver. The significant feature of this activity is the danger that there may have been a probing of his memory of the accident by members of his extended family or other sympathetic persons. Because of his sad -- 7 of 22 -- 6 plight and· financial position, it would not be surprising if there were such persons who may have tried to encourage his memory so that he would'not be deprived of damages to which they felt·he may be entitled. The danger is that in untrained hands, such interrogation could plant the seeds of total reconstruction of a fictitious event "in the mind of one such as he was. Of course, this is· not ·a fin.ding that such an event occurred but merely an exploration of reasonable possibilities accounting for his story which was beyond his true capacity to recall; and those mentioned are by no means exhaustive. The plaintiff himself appeared to be a decent person though this judgment is subject to the impediment in the form of a mask of his character produced by his slightly eccentric personality resulting frbm" his injury. However, there is no reason to believe that""he is other than as described, if that is read in the context ·that he has some emotional views as to his situation, that is, that he is no longer the bread-winner for his fami'ly and is reduced to a lowly status in-that context. Considering this serious loss and the financial differences involved, there is certainly a·powerful temptation, even to an ordinary decent man, to abandon or reduce his resistance to rationalisation. The plaintiff's difficulties are compounded by the report of Mr. Weston of 11th December, 1985. He had seen the plaintiff for medico~legal purposes on the previous day. In that report, he says: ··"Mr. Gary Bowman said that he has been told that he was the driver of the car, 'however is unable to remember the actual accident. He "commented: 'I think I remember taking off from work and heading home. I can't remember the hospital'". This -- 8 of 22 -- 7 is in contrast with his evidence that from the previous February some ten months earlier, he had full and continuous recall of the details of the accident except for the last fraction of a second after he left the road. It is said that there is some vagueness in the report and in the plaintiff's comments which are quoted in it, but it is not a precise legal statement and its import is, regrettably for the plaintiff, plain. It does no more than confirm what the other evidence establishes on a very high degree of probabilities. It is argued that the plaintiff does not have the wit to manufacture evidence in his intellectually damaged state. The medical evidence and his performance in the witness box does not bear this out. While his intellectual processes are somewhat slowed and his short-term memory. for featur.es generally relevant~ ' :_ C to this point is defective, and while he may be more emotional. and have a reduced frustration level, he is both aware and. > rational~ In any case confabulation or nightmares as a source of a false account does not depend on wit. It must also be said that his capacity to recount the details of the accident were reasonably impressive in manifesting his present capacity" to give an account of himself, but the degree and refinement of detail which he provided did not enhance his credibility simply because of those qualities. In other words in the witness-box. he appeared to be alert enough as to the factors favourable to his case to be well able to rationalise details which would help his case, and at times he .appeared to be doing just that. This being so it is hardly likely that any rationalised or suggested account would be inconsistent with the circumstances. -- 9 of 22 -- 8 This also tended tO defeat the submission on his behalf that he had ari II island of rri.erriory" of the accident because of its life-t~reatenirig nature; for even on that theory it would have been Only the event it~elf and not the preliminary fine detail which should have remained with him. However, Dr. Cameron, who was very careful and obviously far from unsympathetic to the plaintiff, adrrii tted of no such phenomenon in this case within the bounds of reasonable possibility. It is true that he did not explicitly exclude it, but he certainly did exclude it in his general description of the situation. If he had regarded it as an ~cce~table feature, he would certainly have mentioned it~ M~. Weston, not unnaturally, was doing his best to try to find possible explanations which might give the plaintiff's account some small foundat'ion for·acceptability, but it seemed that even he was not very convinced of this explanation in the present case. The possibility of a combination of a flash of memory of the most dangerous moments in the· account described by the plaintiff, garnished by rationalisation as to other details, has not been overlooked, but the difficulty in accepting this is dispelledby the force of the evidence excluding any such memory at· all. In any case there is nothing about his account of the ciitical moments which would distinguish it from his ac~ount of the other events so as to protect it from the abasement which the latter draws upon itielf and, by undistinguishable association, upon it. Even if it were pOssible that there could be such an "island of memory", there is nothirig to suggest that it exists in this case rather than rationalisation~ or ~6rse, lik~ all th~ rest. -- 10 of 22 -- 9 Learned counsel for the plaintiff, who assisted by advancing every possible argument reasonably available to him, sought to rely also, upon the credibility of the plaintiff 'Cs wife when she spoke of his giving an account of the accident on the occasion in February 1985 referred to earlier. The details of that account were not led from her, but there are a number of countervailing factors. In many ways she is undoubtedly a very fine woman indeed, as demonstrated by her successfully undertaking the monumental task of taking the plaintiff home and rehabilitating him in his highly disturbed and difficult state. That of course is not inconsistent with rationalisation on her part motivated by a desire to see him provided for comfortably for the rest of his life. But even if her evidence is accurate, it does not exclude the reasonable hypothesis that his account ~ , "' ,w, ,.f may have been the product of rationalisation or the adoption of suggestions made to him, or both. The effect of what he told Mr. Weston of his memory some ten months later is relevant to this point also. One other argument advanced by his counsel is in the nature of res ipsa loqui tur. The plaintiff's account, he says is fortified by the nature of the accident in that it is the only reasonable ~xplanation for the circumstances of the accident. This too has considerable difficulties. As it has already been observed there are other explanations for the accident which are at least equally open on the evidence so that the circumstances themselves as known carry no inference of probability supporting the plaintiff's ~ccount. -- 11 of 22 -- 10 His ·vehicle was in very poor condition. Its bald rear tyre, substantial rusting and total absence of a seat-belt socket were irrelevan·t fa'c•tors. except as confirming the condition of the other The foot brake needed adjustment so that it was necessary to pump the pedal a few times in order to have the brake operate efficiently. This would have extended the time taRen' to apply the brake in an emergency. Much more importantly was the state of the driver's seat. Its means of attachment to the body of the car were so badly rusted and broken that, whilst the seat· was not completely free to move, it would permit of a substantial rocking motion forward and backward. Its tilt forward would be most pronounced on sudden deceleration. The condition of the road was not ideal. Even the bitumen surface was said t'o have had a wavy profile, and there was loose gravel beyond the dirt shoulder. The combined effect of these factors of · the' state of the road and the condition of the plaintiff's car is pregnant with reasonable explanations for the accident alternative to that proposed by the plaintiff, particularly if allowance is made for the possibility that, after having drunk a stubbie of beer immediately prior to his journey home·, he had allowed his attention to stray on this familiar and comparatively straight stretch of isolated country road. There is' an alternative hypothesis open. The relatively isolated nature of the"area has been mentioned in evidence and confirmed by the plaintiff's not having been found for some three hours. This isolation makes for'a: greater presence of wildlife. It · was dusk, which is a time when kangaroos and other such creatures known to be in the area make their forays and tend to -- 12 of 22 -- 11 appear on country roads. The occurrence of accidents like this, where a motorist attempts to avoid a kangaroo or wallaby which emerges from scrub or long grass on the side of the road, is notorious. Even if there were no evidence of it, it might have been possible to take judicial knowledge of the increase of the incidence of this phenomenon at dusk when the creatures emerge from their daytime cover arid when they are more difficult to see. Such circumstances could cause a motorist driving an efficient vehicle to leave the road whilst trying to avoid a collision with the animal, and the condition of the plaintiff's brakes and driver's seat would have made his control of the vehicle so much more difficult in such circumstances. There is no evidence that alcohol played a part in the accident, notwithstanding the notation in the report of the hospital to which he was taken that "there was some history of alcohol during the accident''. The plaintiff's evidence that he had only one stubbie of beer is supported by the evidence of his. employer, and although the latter was certainly not an impressive witness, particularly on this point, there is no evidence to the contrary. At the most, the amount which the plaintiff admitted to drinking is relevant only to the possibility of a general state of relaxation as he was driving home which may have diminished his alertness to various dangers and his capacity to respond as quickly as otherwise. At most, this is but a small matter. While the· above discussion has been confined to a consideration of hypotheses alternative to that advanced by the plaintiff as • the appropriate inference to be drawn from the -- 13 of 22 -- 12 established -facts, there are · also some weaknesses in his own proposition which should ·-be noted. That version carries the necessary implication that the driver of the other vehicle either failed-to see that the plaintiff had crashed or had wantonly driven off indifferent to the plaintiff's fate. Although this is possible, particularly if that driver had been at fault, however it is somewhat unlikely. More so is the suggestion that the alleged driver of the other ·vehicle, travel~ing at a moderate speed, should without warning and for no apparent reason have veered dangerously to his right and force the plaintiff off the road after he had previously moved partly off the bitumen surface for no reason other than courteously to allow the plaintiff to pass. There are pbsaible explanations -for these difficulties of course but the force of these objections must affect the strength of the inference which is asserted, particularly in the light of alternative explanations the existence of which ·:1oes to the probability of~the inference which the plaintiff would desire to have drawn. These are factors of the kind which the authorities say should be carefully scrutinised. For these reasons, there is certainly no inference from the objective evidence of the probability of the existence of an unidentified vehicle or its implication in this accident. Even if one existed, ther~ is no implication that the accident was probably~aused by the negligence of the driver of that vehicle rather than the negligence of the plaintiff himself and/or his difficulties in controlling his vehicle because of its condition·. Nor is there any objective evidence which of itself could support -- 14 of 22 -- 13 a finding in the plaintiff's favour, nor any independent evidence of the existence of such a vehicle as the plaintiff described notwithstanding that the area is sparsely populated so that the presence of a strange vehicle might well attract the attention of those living there. In the absence of direct objective or inferential evidence on material issues, his own account is vital in this case. Where a claim is based on the alleged negligence of an unknown driver of an unidentified vehicle and the only evidence of the circumstances of the accident is the account of the plaintiff himself, the ordinary civil standard of proof still applies but the Court must adopt a more cautious approach to the determination of the issues than it would in other cases because it does not have the benefit of the story of th.e person ylhose; conduct is under attack: Anthony v. The Nominal Defendant, unreported No. 167 of 1986 per Kelly J.; Freeman v. Griffiths (1976) 13 S~A.S.R. 494 at 49S; Blum v. Motor Vehicle Insurance Trust (1966) W.A.R. 121 at 123; Pearce v. The Nominal Defendant (1964.) Qd. R. 312 at 323. It is of particular importance to consider previous statements made by the plaintiff which may be inconsistent with his present testimony: Blum v. Motor Vehicle Insurance Trust (supra) . That has relevance in the present case. Regrettable though it .is that he should be left with no more than his workers' compensation pay-out for his grievous injuries, the weight of the evidence as it appears was so heavily against the acceptability of his.account :that it cannot sustain him in any conscientious. assessment, no matter how sympathetic. This -- 15 of 22 -- 14 means that he has .failed to prove his case and the action must be dismissed with·costs: It should be mentioned that on the last day of the trial, there was a public statement by a representative of the Nominal Defendant critical of the Courts for making findings in favour of plaintiffs in: cases such as this which, he said, imposed a strain upon the three dollars per year paid by all Queensland motorists to furnish the fund. The criticism is barren and the details referred to display an unfortunate misunderstanding of the law by anyone pretending to the right of making serious public comment upon it. It is necessary however to mention the matter in order to give the plaintiff reassurance that this Court was not influenced against his interests by that event. If ariything, i t·,would have been to the contrary if care had not been taken to discard its influence. Despite the dismissal of the action, in conformity with the proper practice, it is necessary to asses~ damages in case of a successful appeal. The plaintiff was approaching thirty-two years of age at the time of the accident, and is now thirty-eight years. As the result of the fracture of his right clavicle, neck injury and blow to his right knee, he suffers some pain and disability in his neck and shoulders and··his knee, leaving him with a ten per cent disability in each of his right arm and right leg. This is fairly minimal in his circumstances. He also suffers headaches about three times a week :but after taking two analgesics and lying down, he seems to recover satisfactorily. Again in his present circumstances this is not of great consequence. -- 16 of 22 -- 15 His worst disability flows from his serious brain damage~ This was internal and there was no gross external injury, but its effect was shocking at the time and for some considerable period afterwards. His behaviour was totally irrational and uncontrolled with unfortunate social features. Even after his incontinence subsided, he still removed his clothes and engaged in other bizarre activity. When his wife, who had been present with him at hospital every day in Brisbane for three months, then took him home, it was necessary for her and her family to exercise close and substantial supervision, even at night-time because of his restlessness and agitation. For example,· they had him sleep between his wife and her brother. They also erected a compound and a shed in their yard in which to keep him relatively confined during the day. His language was irrational and disconnected, interspersed with swear-words, and he seemed to live in a world of his own. Then in November 1984, although he has no recollection of this, he behaved and spoke rationally for the first time since his accident. He improved further and in the following February, as. it has been noted, he made an observation of the.absence of his wife's dead grandmother. It is at this time that he also says that he regained his memory. All of this, it is said, followed upon some chiropractic treatment of his neck which proved to be very successful. It might be observed at •this stage that, as the defence points out, the plaintiff has no memory whatever of his dreadful experiences of that time, and, apart from the symptoms of physical injury which manifested themselves, it is difficult to -- 17 of 22 -- 16 say that he suffered any-recognition of or ~istress as to his condition. However j he has lost the experience of a significant part of his iife, and being now aware of his behaviour during th~t period he-must feel some distress retrospectivel~. After February 1985,- he made a rapid recovery towards his present condition. He has a short-term memory deficit in respect of -ce-rtain features only, especially when he is distracted, such as in respect of- things he is told to do, and he is required to write them down. For matters in which he is interested or which he-himself-has done or said, even his short-term memory appears to - be relatively intact. While his cerebration is somewhat slower than normal and he appears to concentrate on conversation and thinking more than usual, there appears to be no other iYfte1Iectual impairment by comparison with his pre-traumatic level which-was not high. There may be some small reduction of t~~~l insight into his condition. Although he is not violent 1 he is short-tempered and is somewhat frustrated and emotional about his loss of status. He has · some difficulty in his relationship with his children because of his lack of authority. Subject to his difficulty associated with remembering a list df thirtgs to do and his distractibility, he is able to and does perform domestic and other work about the house like any ordinary person. His only need is for some supervision to ensure that he has not forgotten or been distracted from what he should do, and in a number o-f respects this can be fortified by his taking written notes. In this wa·y he can with precautions go shopping in the ordinary way and do many other tasks. He can go -fishing and engage in reading lighter literature, much as he did before -- 18 of 22 -- 17 his accident, although he has some impatience now. As early as December 1985 he was engaged in delivering pamphlets and mowing lawns on a casual part-time basis, but he had some difficulty with his knee in these activities and should not be regarded as capable of employment. Nevertheless this demonstrates the level of his ability to function. He is not capable of handling his own financial affairs, particularly in respect of a large amount of money, and a protection order would have been made had he succeeded in obtaining damages. This does not predicate a gross loss of capacity for as early as November 1985 he could delineate quite accurately to Dr. May, a psychiatrist, the state of his f_amily' s finances, and their expenditure and income. The plaintiff is blessed with a very good wife who has, been able to adapt the family situation to his disabilities very well and, subject to his feelings referred to above, they have a ~e~y happy and durable marriage. Indeed they have had a second c_hild since his accident. Moreover, his wife's relations are N",ery supportive and on the day that his wife goes to work as a nurse's aid, her mother, whose relationship with the plaintiff is very good, comes over to his house and provides some supervision. With this support, the plaintiff's wife is able to take some employment. This leads into the question of the plaintiff's need for continuing personal assistance in his domestic situation. Because of his forgetfulness, it would be unwise for him to live alone and from a practical point of view he is not capable of managing the care of young children alone; and it is partly for -- 19 of 22 -- 18 the latter reason that his mother-in-law attends when his wife is absent for the day at work. For his own personal needs, he could "probably be left alone for the day while his wife is at work providing that some light midday meal is prepared or the simple ingredients are provided for him. However, it would still be desirable that there be some supervision of a very modest kind, and it would be somewhat generous to allow for a sum sufficient to pay a neighbour to make a couple of short visits during each day when hfs wife is at work amounting to an hour in all in order to re-assure him and check that all is well in the house. rt is not coirect to take into account the position of the children for, in the absence of the accident the plaintiff would have been at work, and other arrangements would have been necEfss"ary for the children. In any case, damages under this head are limited to answering his own personal needs. Consequently, w~ilst there should be a substantial allowance for the Griffiths v. Kerkemeyer factor up to the date of trial, particularly because of the intensive care provided in the first twelve months, his need for the future is far less substantial. While commercial rates should be adopted as a starting point, they must be adjusted because the services were provided by his family in their own home, and services such as bare supervision could be provided whilst they were still engaging in their own leisure activities: Kovac v. Kovac (1982) 1 N.S.W.L.R. 656; Carrick v. Commonwealth of Australia (1983) 2 Qd. R~ 365; Veselinovic v~ Thorley (1988) 1 Qd. R. 191, 203. On the other hand, during the period when the plaintiff was in need of -- 20 of 22 -- 19 extensive physical assistance, the appropriate rate would have been comparatively higher. For past economic loss a figure of $45,000 ~ 00 should be adopted on which there should be interest of $17,500.00, particularly taking account of the long period since the provision of the most intensive services. For t9e future services, a figure of $20;000.00 is adequate. For the plaintiff's loss of earnings to trial, he should be allowed $80,000.00. If he had worked in the same job for the entire intervening period he would have received slightly in excess of $100,000.00, but his work history was somewhat unstable and associated with unemployment, and alternative jobs within his capacity would have produced a maximum total of earnings ~or this period of about $80,000.00. Despite the prospect that b~cause of the working hours in the job which he had, it may have been possible for him to have earned further money in a second jo~, nevertheless the contingencies require an adjustment to the figure stated. Interest on his loss of earning capacity to.the date of trial should be set at $16,000.00 For future loss of ·earning capacity the award should be $225,000.00, being about $350. 00 per week for a period discounted to twenty years, and with a further minor discounting because of the rate of wages adopted. Recurring expenses are minimal and should be put at $500. 00. Special damages, either as agreed to or as established amount to $13,940.70, and Public Trustee charges and incidentals should be allowed at $30,000.00. -- 21 of 22 -- 20 For his pain, suffering and loss of amenities of life, he should receive $80,000.00 on which interest should be allowed on $30,000.00 lost to date resulting in a figure for interest of $11,700.00. In summary, his damages should be assessed as follows:- Loss of earning capacity to trial $80,000.00 Interest thereon Loss of future earning capacity Griffiths v. Kerkemeyer principle Past Interest thereon Future Public Trustee charges Future recurring expenses General damages Interest thereon Special damages The action is dismissed with costs. $16,000.00 $225,000.00 $45,000.00 $17,500.00 $20,000.00 $30,000.00 $500.00 $80,000.00 $11,700.00 $ 13,940.70 $539,640.70 -- 22 of 22 --