SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: PARTIES: Armstrong v Mitchell-Smith and Allianz Australia Insurance Limited [2012] QSC 334 CORY JAMES ARMSTRONG Plaintiff v JASON DAVID MITCHELL-SMITH First Defendant And FILE NO/S: S14/12 DIVISION: PROCEEDING: ORIGINATING COURT: ALLIANZ AUSTRALIA INSURANCE LIMITED Second Defendant Trial Division Trial Supreme Court Mackay DELIVERED ON: 7 November 2012 DELIVERED AT: Supreme Court Rockhampton HEARING DATE: October 2012 JUDGE: ORDER: CATCHWORDS: McMeekin J Judgment for the plaintiff in the sum of $491, DAMAGES PERSONAL INJURIES MOTOR VEHICLE ACCIDENT QUANTUM where plaintiff suffered personal injuries where car rolled where liability admitted assessment of damages pursuant to the Civil Liability Act 2003 (Qld) ISV assessment where assessment of general damages, past and future economic loss in issue Allwood v Wilson & Anor [2011] QSC 180 Perfect v MacDonald and Anor [2012] QSC 11 Civil Liability Act 2003 (Qld) ss 55, 59, 62 COUNSEL: Civil Liability Regulation 2003 (Qld) Schedules 3, 4, 6A P Cullinane for the plaintiff

2 2 SOLICITORS: GF Crow SC for the second defendant Macrossan & Amiet Solicitors for the plaintiff Sciacca s Lawyers for the second defendant [1] McMeekinJ: The plaintiff, Cory Armstrong, claims damages for personal injuries suffered on 18 November Mr Armstrong was a passenger in a car. The car rolled. His left hand was crushed. [2] The second defendant admits liability. I am required to assess the quantum of damages. [3] Mr Armstrong was born on 31 May He was 16 years old when injured and is now 20 years. [4] The assessment is governed by the provisions of the Civil Liability Act 2003 ( the CLA ) and the Civil Liability Regulation 2003 ( the Regulations ). The Injuries [5] The plaintiff s submissions 1 record that the plaintiff was rendered unconscious by the impact of the accident. While the submission reflects the history taken some years later by an orthopaedic surgeon, Dr Cook, 2 I can find no reference to any loss of consciousness in the plaintiff s statement 3 or the hospital records 4. Indeed the presenting problem is recorded in those records as no loss of consciousness GCS Similarly the electronic ambulance report form in the hospital records also records that the plaintiff was not KO d and self extricated from the vehicle and walking around on scene when QAS arrived. 6 [6] The plaintiff came under the care of Dr Drobetz, the staff orthopaedic surgeon at the Mackay Hospital. The plaintiff was taken to theatre and an amputation of the left middle finger proximal to the head of the proximal phalanx was performed. According to Dr Drobetz the wounds healed well and the plaintiff was left with a near pain free stump of his amputated middle finger, but his main problem is that he has a flexion contraction of his PIP joint of the ring finger. [7] In his letter of referral to Dr Megson, an orthopaedic surgeon, of 21 January 2009, Dr Drobetz recorded the following injuries: (a) Multiple deep abrasions over the left hand and wrist; (b) Sub total amputation of the left middle finger at the level of the PIT joint; (c) Bad lacerations over the ring finger with the skin abraded to the bone. [8] The plaintiff came under the care of Dr Stephen Megson in February In addition to the traumatic amputation of the left middle finger Dr Megson diagnosed a See Ex 18 para 1 See Ex 3 at p2 See Ex 1 para Ex 9 GCS Glasgow Coma Score 15 being normal See Ex 9

3 3 severe soft tissue injury left ring finger with resulting central slip extensor tendon injury and resulting severe Boutonniere deformity. [9] Conservative management of the deformity to the ring finger was unsuccessful and eventually the plaintiff came to surgery in May The surgery was performed at a day clinic but nonetheless seems to have been reasonably extensive. Dr Megson reports that he was happy with the result and following a final review in August 2010 reported that the plaintiff had a functional range of motion in the ring finger which should not contribute significantly to his disability. The principal disability rests with the amputation of his middle finger just proximal to the PIP joint. [10] The plaintiff was seen by Dr Cook, orthopaedic surgeon, for medico-legal purposes on 29 March Dr Cook reported the following injuries: (a) Traumatic amputation left middle finger at the level of the proximal interphalangeal joint; (b) Multiple abrasions to the left upper and left distal forearm; (c) Healed abrasions on the dorsum of the left hand extending to the bases of the left little, ring and middle fingers; (d) Rupture or severed extensor tendon and ligament injury to the left ring finger resulting in a Boutonniere deformity (flexion deformity of proximal interphalangeal joint with hyperextension distal interphalangeal joint); and (e) Laceration to the left index finger now fully healed and settled. 7 [11] In Dr Cook s opinion the surgery performed by Dr Megson failed to produce a good outcome. The Assessment of Impairment [12] Dr Cook assessed the levels of permanent partial impairment, adopting the American Medical Association Guides to the Evaluation of Permanent Impairment (5 th edn), as 16% permanent partial impairment of the left hand with respect to amputation of the left middle finger and a 45% permanent partial impairment of the left ring finger which converted to a 5% permanent partial impairment of the left hand as a whole. Converting these levels of impairment of the left hand Dr Cook arrived at an 11% whole person impairment. 8 [13] Dr Cook recorded that there was no measurable level of permanent partial impairment attributable to the injury to the left index finger and that the multiple abrasions on the left forearm wrist and hand had all healed extremely well with an excellent cosmetic appearance. [14] Dr Cook s opinions were not contested. The Consequences of the Injuries [15] I had the opportunity to observe the plaintiff s hand at the outset of the trial. The amputation of the middle finger and deformity to the left ring finger were obvious. 7 8 See Ex 3 at p6 See Ex 3 at p9

4 4 The plaintiff demonstrated the range of movement he had available to him. It was, as he said, fixed in a hook like position. 9 [16] The injuries are of particular significance to the plaintiff as he is left hand dominant. [17] The injury has impacted on the plaintiff in various ways. He says that his performance in his grade 11 final exams was affected; 10 he missed out on the chance to obtain part-time casual work over the school holidays between grades 11 and 12; 11 he was precluded from working in the school workshop for one and a half terms; 12 he missed out on the opportunity to undertake work experience during the first term of grade 12; 13 when he was eventually able to undertake work experience he had difficulty with a variety of tasks which involved lifting heavy objects or manual dexterity; 14 he missed out on obtaining two certificates which he said would have been credited towards his Certificate I in Engineering because he had been unable to work in the school workshop at the start of grade 12; 15 he could not immediately commence looking for an apprenticeship after completing grade 12 because he was awaiting surgery on his injured hand; 16 and when he did obtain work eventually he found that his left hand fatigued easily. 17 [18] The plaintiff eventually obtained an apprenticeship as a cabinet-maker. He was not successful in obtaining an apprenticeship as an industrial electrician as he had hoped and which had been his desire for many years. [19] The plaintiff says that he encountered a range of difficulties performing the cabinetmaking work including suffering continuing pain and discomfort in his left hand, finding that the hand was very sensitive if bumped and could swell easily, having trouble lifting boards and cabinets where he would need to take most of the load with his right hand such that he would often need assistance where he would ordinarily have been able to cope, having trouble using power tools used in his left hand because of fatigue and the problems caused by vibration increasing his discomfort and again with dexterity in picking up the small objects necessary in the trade. [20] The plaintiff reports that he is becoming more confident with his right hand but has found it difficult. The plaintiff has pursued other employment and has had continuing troubles with both the tasks that require dexterity and the exertion of significant force with the left hand. [21] Apart from the physical impacts of the injury the plaintiff has become anxious when travelling in a car, self conscious about the appearance of his hand, and more restricted in his social and sporting activities. He gave up his chosen sport of hockey after attempting to return to it. The plaintiff takes occasional panadol or Nurofen when he finds the pain to be severe Ex 1 at p11 para 81 See Ex 1 para See Ex 1 para See Ex 1 para 35 See Ex 1 para 36 See Ex 1 para See Ex 1 para 45 See Ex 1 para 49 See Ex 1 para 49-51

5 5 [22] Dr Cook thought that so far as future treatment was needed it would be essentially symptomatic in nature but will revolve around continued active use of the left hand and a strengthening exercise program to try to improve the function, strength and power of the left hand and for him to gain confidence in the use of this side. 18 [23] No further surgery is indicated. [24] So far as the impact on the plaintiff s employment is concerned Dr Cook reported that he would have difficulties and problems in relation to heavy manual labouring type work and would be advised not to carry out work that involves a lot of climbing, scaffolding or working in awkward or confined spaces. It is felt however that over time he may learn to become more ambidextrous and if successful in this will enable him to work more confidently. 19 Assessment of General Damages [25] I have set out my understanding of the methodology required under the CLA to assess damages where multiple injuries have been suffered in Allwood v Wilson & Anor [2011] QSC 180. [26] The parties are agreed that the dominant injury is the amputation of the left middle finger and they agree that item 114 (Injury Scale Value (ISV) range of 5-20) is the appropriate item number in schedule 4 of the Regulations. They disagree on the appropriate ISV. [27] The defendant contends for an ISV of 15 and the plaintiff for an ISV of 25. [28] The factors that affect the ISV assessment are said to be whether the amputation is of the index or middle finger, which it was here, the level of the amputation and any damage to other fingers short of amputation. [29] The additional comments provided in the Regulations include that an ISV of not more than 11 will be appropriate if there has been an amputation of the index or middle finger at the proximal interphalangeal joint, or there is a whole person impairment for the injury of 8%. Here there has been such an amputation and the whole person impairment is 11%. [30] The plaintiff contends for an ISV assessment not only at the top of the range but with an uplift of 25% to allow for the balance of the injuries. It is difficult to reconcile that submission with the remaining comment in item 114 which reads: an ISV at or near the top of the range will be appropriate if there is complete loss of the index or middle finger of the dominant hand and serious impairment of the remaining fingers causing a whole person impairment of at least 15%. [31] Here there has not been a complete loss of the middle finger of the dominant hand and there is not serious impairment of the remaining fingers but rather a serious impairment of one further finger. And finally the whole person impairment is at 11% not 15% See Ex 3 at p7 See Ex 3 at p8

6 6 [32] It is evident then that the ISV attributable to the amputated middle finger lies somewhere between an ISV of 11 and an ISV of 20. In my view an ISV of 15 would seem appropriate. [33] To an extent when dealing with injuries to the hand and fingers the table in Schedule 4 self evidently brings into account the potential for injuries to other parts of the hand to arrive at an appropriate ISV. However in choosing an ISV the task is to assess the level of adverse impact of the injury on the injured person. 20 To determine whether the maximum dominant ISV is sufficient or not regard must be had to the impact of the remaining injury in order to comply with ss 3(2) and 4 of Schedule 3 of the Regulations. [34] The injury to the ring finger it seems to me would fall within item of Schedule 4 that is a moderate injury to one or more of the fingers with an ISV range of The whole person impairment attributable to the injury to the ring finger is 3% (using table 16-3 at p 439 of the American Medical Association Guides to the Evaluation of Permanent Impairment (5 th edn)). The comments in item suggest that the injury to the ring finger would be assessed towards the bottom of the ISV range there (ISV 6-10). I would assess an ISV of 6. [35] A significant matter in this assessment is that the plaintiff still has substantial use of his left hand albeit with some restriction. However there are many factors that serve to increase the appropriate ISV assessment. The plaintiff required surgery on two occasions and had a long convalescence. He was quite young when he suffered his injury and so will probably bear the disabilities for a very long time.. He has a prospective life expectancy of about 65 years according to the current life tables. He suffered the injury to his left hand at a time when one would expect him to be active in his sports and pastimes and they were disrupted. As well he suffered the injury at a time in his life when any youngster would be very self conscious of a significant deformity which was and remains difficult to conceal. It is relevant too that the plaintiff s ambition of becoming an industrial electrician, which I will come to in assessing his economic loss, has been set back by this injury and hence the injury has a particular significance for him, a person who had skills and interests that lay in the line of work that required manual dexterity and strength. All of these matters bear on the assessment of the appropriate ISV: see s 9 of Schedule 3 of the Regulations. While the whole person impairment is reasonably high it by no means reflects all of the impact that this injury will have on the plaintiff and that too can be brought into account: see s 10 of Schedule 3 of the Regulations. [36] Counsel cited a number of decisions comparing various assessments of general damages awarded for hand injuries. It is always difficult to compare one person s injury and its impact with another s. However I am particularly conscious of a decision of my own in Perfect v MacDonald and Anor [2012] QSC 11 where I assessed an ISV of 15 for a plaintiff who had a 1% whole person impairment for damage to the deltoid muscle resulting in muscle wasting and minor weakness, a 3% impairment for scarring to the lip and shoulder, a coccygeal injury with a very modest impairment along with damage to a tooth. He too was young and had ambitions to be a diesel fitter and so had the prospect of difficulties in pursuing the work that he wished to follow. I have no doubt that the plaintiff here is in a worse position than Mr Perfect. 20 Schedule 3 part 2 section 2(2) of the Regulations

7 7 [37] Bearing all those factors in mind it seems to me that the level of adverse impact of the injury on the injured person is reflected by setting an ISV at 18. [38] I assess general damages at $22,800 pursuant to s62 of the CLA and s1(d) of Schedule 6A of the Regulations. Past Economic Loss [39] The defendant contends that the plaintiff has not established any significant component of past economic loss. The plaintiff seeks an award of nearly $44,000. [40] The essential assumption underlying the plaintiff s approach is that but for his injury he would have obtained an apprenticeship as an industrial electrician upon completion of his schooling. [41] The defendant contends that there are two problems with that assumption. The first is that the plaintiff hasn t shown that he would have obtained an apprenticeship but for his injury. The second is that it hasn t been shown that the plaintiff cannot work as an industrial electrician. [42] The plaintiff did not call any employer to comment on the impact that his injury would have on his prospects of obtaining an apprenticeship in his chosen field or of obtaining or retaining employment in that field. [43] There is substantial evidence that the plaintiff was interested in becoming an industrial electrician, had some manual skills that could probably translate well into that area and that other young men from his school who were interested in obtaining apprenticeships were successful in doing so. [44] For the purpose of calculation the plaintiff adopted the wages paid by an employer of industrial electricians, United Group Resources. That employer was chosen because the plaintiff had had two separate periods of work experience with them in September 2007 and June 2008 and the work placement evaluation following that latter period of work experience had recorded his supervisor as saying that he would recommend the plaintiff for an apprenticeship as an industrial electrician upon completion of his studies. 21 [45] The plaintiff pointed to the evidence of Mr Cassells who had taught the plaintiff in his grades 11 and 12 years. Mr Cassells was the vocational education co-ordinator and the engineering and manufacturing teacher effectively he taught youngsters, predominantly males, who were looking for a career in the engineering trades such as the plaintiff. [46] Mr Cassells said that for those students who completed a Certificate I in Engineering the surveys the school conducted of their students suggest that of those who complete the survey the school has pretty to close to 100% uptake 22 - that is that those who complete the Certificate are successful in obtaining positions. Mr Cassells also said that about half of the class doing the engineering stream would have obtained trades at the completion of their year See Ex 11 T ; T1-45/15

8 8 [47] The plaintiff pointed too to Mr Cassells evidence that the things that employers had advised the school that they were interested in, in placing young men into trades, were the four A s, that is attitude, application, appearance and attendance. 24 The plaintiff pointed out that in his last placement with United Group Resources the plaintiff s supervisor had ticked very good in all boxes which included his attitude, an ability to work unsupervised and his initiative. [48] The significant difficulty in accepting the plaintiff s case is that there was no evidence led that his injury in fact impacted on his attempts to find employment as an apprentice. The plaintiff s own evidence, as contained in his statement, was that he had made at least 15 applications for positions as an apprentice and had been unsuccessful. 25 His statement recorded that he had called on some prospective employers personally but plainly enough he did not call on all. Which employers he called on was touched on in cross examination but not fully explained. In his crossexamination the plaintiff indicated that the résumés that he sent out were either for industrial electrician apprenticeships or normal electrical work. 26 [49] The fact that the plaintiff sent out some 15 résumés and was unsuccessful, and the fact that he visited some of those employers personally, does not mean that the plaintiff failed to get a position because of his injury. There is no evidence as to whether he indicated to the employers that he visited that he had the disability and impairment let alone any reason to assume that the employers assumed that he would not be fit to carry out the work that he sought. [50] Mr Cassells evidence justifies the view that he had a good chance of obtaining such a trade but not all students were placed and it by no means follows that because one particular supervisor at United Group Resources thought that the plaintiff was worth recommending meant that the employer would have the same view of him. As the defendant pointed out the plaintiff s results at school both before and after the accident were not particularly impressive. [51] Given the state of the evidence it seems to me that it would not be appropriate to draw an inference that the plaintiff was certain to obtain an apprenticeship in his chosen trade. [52] Doing the best I can on what are very uncertain materials I assess the plaintiff s prospects of obtaining an apprenticeship by now had he not been injured at about even. [53] Apart from the failure to obtain an apprenticeship there was no evidence that the plaintiff s career path has been otherwise affected by his injury. He has generally maintained himself in employment. He obtained an apprenticeship as a cabinet-maker that came to an end because the business closed but his employer, who gave evidence, thought that he had the capacity to complete his apprenticeship and work as a cabinetmaker. [54] There should be some allowance for the loss of income over the first school holidays following the subject accident T1-46/8 See para 54 of Ex 1 T1-14/40-50.

9 9 [55] Doing the best I can I assess the plaintiff s past economic loss on a global basis at $24,000. Future Economic Loss [56] The plaintiff submitted that his damages should be assessed at a little over $1 million and the defendant contended for a global assessment of $200,000. [57] The assumptions underlying the defendant s approach were that it was not demonstrated that the plaintiff could not do the work of an industrial electrician, that he might well obtain an adult apprenticeship as he still hoped and that he plainly had the capacity to work as a cabinet-maker with a prospect that his present earnings in no way reflected his likely future at residual earning capacity. As there was no way that any precise calculation could be performed all that could be done was assess a global sum as representing the probabilities. [58] The plaintiff s approach was to take the wage that the plaintiff would have obtained had he continued his apprenticeship, completed it at the end of 2013, qualified as an industrial electrician and then worked under the agreement governing United Group Resources. The residual earning capacity was put at the present level of the plaintiff s wages. A fifteen percent discount was applied for contingencies. [59] It can be immediately observed that the plaintiff s approach substantially overstates the appropriate award as it assumes that the plaintiff s earnings as a 20 year old as a parts purchaser with Southern Cross Auto Electrics (a net wage of $ per week) reflects his likely earning capacity for the rest of his life. There is no reason to think that he is so restricted. He has the capacity to obtain a trade and it would be in his interest to do so. Not all trades might be open to him but many are. One can expect that as a cabinet-maker, or perhaps in other trades, the plaintiff could run a successful business and earn a substantially greater sum. [60] In my view a further problem with the plaintiff s approach is that the assumption that the plaintiff will not succeed to his ambition of becoming an industrial electrician, or at least an electrician, is not made out. The plaintiff himself still intends to pursue an adult apprenticeship in due course. He may or may not be successful in doing so but it is apparent that the plaintiff is a man of some capacity and resource. Despite his significant injury he has pursued and obtained employment. Working as an apprentice cabinet-maker could not have been easy for him given the problems he has with his left hand but he has persevered and by and large overcome those restrictions. [61] As the defendant points out the claim to have an incapacity to work as an industrial electrician is not supported by Dr Cook s evidence (I have quoted the relevant restrictions that Dr Cook observed above) and nor is it supported by the occupational therapist that the defendant called, Ms Stephanie Johnson. [62] Ms Purse, an occupational therapist called by the plaintiff, concluded that the plaintiff did not have the functional capacity to work as an electrician due to the impaired dexterity and deformity of his left fingers. She also commented that electrical work requires bilateral dexterity more than most other trades. The plaintiff called evidence from a young qualified industrial electrician, Mr Dempsey, who expressed the opinion that it would be impossible for the plaintiff to fulfil all the duties of an industrial electrician.

10 10 [63] The difficulty with Mr Dempsey s evidence is that it was not shown that he had any basis for expressing the opinion that he held. That is he had no knowledge at all of the restrictions that the plaintiff had in terms of his dexterity or strength. [64] While Ms Purse s opinion must be given respect as the view of an experienced occupational therapist the fact remains that the plaintiff doesn t share that view, that it is well accepted that those with an impairment to the dominant hand develop greater dexterity and function with their non-dominant hand, and that the testing by the occupational therapists show that the plaintiff has improved over time. As well the plaintiff has shown by the testing undertaken by Ms Johnson to have sufficient hand function to enable him to hold and grasp tools and undertake fine tasks using a pincer grip. His limitation is really one of fatigue. As Ms Johnson recorded he would need an understanding employer as he would take longer to complete tasks. Although his employer in the cabinet-making trade, Mr Butcher, thought that his strength was less than usual, the weights that Mr Butcher had in mind were quite extraordinary 100 kgs or more. As Mr Crow of Senior Counsel for the defendant submitted no employer should be expecting an employee to lift weights at that level. It may be that Mr Butcher mistakenly overstated the weights in question. I think the inference that can be drawn from his evidence was that he thought that the plaintiff s capacities were less than he would expect of a young man of his age. [65] In summary I conclude that the plaintiff may have the capacity to obtain an apprenticeship and qualify as an industrial electrician. He has not established that that avenue of work is completely foreclosed to him. Nor has he shown that he would have obtained an apprenticeship as a matter of a certainty by now if his injury had not occurred. However he certainly has a number of barriers that he would need to overcome to gain entry to the trade and even if he did overcome those barriers he would be left with a left hand that fatigued more easily and that was somewhat less dexterous than a dominant hand needs to be or ought to be. His disability would cause employers to have concerns as to his capacities. He would probably have difficulties in obtaining and retaining employment. He would need a sympathetic employer or, if he ran his own business, would be slower and so less profitable in pursuing his trade. [66] The assessment of damages for plaintiffs injured when they are still at school always presents significant difficulties. Their lives could have taken various paths and the impact of an injury such as this is difficult to assess. [67] In my view it is appropriate that a global sum be assessed. I bear in mind the requirements of s55(2) of the CLA: The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters. [68] The evidence shows that a trade qualified industrial electrician could be earning in the order of $1,900 net per week. [69] I assess the future economic loss at $400,000. That represents a loss of about 35% of the plaintiff s potential capacity assuming qualification as an industrial electrician. Past care and assistance

11 11 [70] The plaintiff claims a little over $30,000 for assistance rendered to him after his accident. [71] His right to obtain such damages is governed by s 59 of the CLA. That section imposes three conditions that must be met for an assessment to be made. It provides: 59 Damages for gratuitous services provided to an injured person (1) Damages for gratuitous services provided to an injured person are not to be awarded unless (a) the services are necessary; and (b) the need for the services arises solely out of the injury in relation to which damages are awarded; and (c) the services are provided, or are to be provided (i) for at least 6 hours per week; and (ii) for at least 6 months. [72] The evidence led by the plaintiff relating to the provision of assistance to him is remarkably restricted given the pre-conditions that had to be met. No oral evidence was led. His statement records that he required assistance from his parents for his personal care as well as his day to day tasks. The statement records that that care was needed because of my injuries. The tasks identified in the statement are cutting food, showering, dressing and undressing. With respect to household assistance the statement records that the plaintiff needed assistance with taking care of my bedroom, general household cleaning and tidying, preparation of evening meals, laundry, mowing and gardening. [73] For the personal assistance items the plaintiff claimed 2 hours per day for 12 weeks and then 4 hours per week for 88 weeks. For the household assistance the plaintiff claimed 7 hours per week for 100 weeks and 3.5 hours per week for a further 16 weeks. [74] The care then is sought for a period of between 100 and 116 weeks, that is about 2 years to 2 years 4 months. [75] No evidence was led from any person who in fact provided assistance to the plaintiff. No evidence was led to demonstrate how the 2 hours per day, or the 4 hours per week, or the 7 hours per week, or the 3.5 hours per week was determined. There was no evidence that any diary or other record was kept. Such a broad brush approach gives the court very little to work on in determining what assistance was in fact provided. [76] Nor with respect does it seem to me self evident that it would take two hours per day to assist the plaintiff with cutting up his food, showering, dressing and undressing. The notion that he needed assistance with those tasks and to the extent claimed for 100 weeks is difficult to reconcile with his return to school in 2009, his taking up of indoor soccer albeit while wearing splints in that year, working part-time at Pizza Hut in 2009 for 20 hours per week and taking up hockey some time in the 2010 year.

12 12 [77] Mr Crow SC objected to the receipt of the paragraphs in the quantum statement and to the hearsay evidence set out in the report of Ms Purse concerning care. 27 He clearly flagged that he would argue that if the evidence remained as it is he would contend that for the plaintiff to say what he required was not the same as the plaintiff saying what he had received. In ruling on that objection I observed that I would receive the evidence but I then said that the paragraphs in the statement will not go to prove what it is necessary for the plaintiff to prove. I will receive it on the basis that the plaintiff had difficulties with the tasks nominated and needed assistance with them, but the extent of that assistance will need to be proved to a greater level than this document does for me to accept the hours claimed. 28 [78] As mentioned no further evidence was led from the plaintiff s parents, they being the ones that the plaintiff nominated as the persons who provided him with assistance. [79] In her report Ms Purse set out under the heading Necessary assistance is averaged and estimated as follows 29 the hours claimed for personal care set out in the plaintiff s quantum statement. The plaintiff was not shown her document and asked whether what was set out there reflected what had occurred in his life in terms of the care provided. Given the objection taken by Mr Crow SC at the outset Ms Purse s comments cannot be received as evidence of what in fact occurred. Even without that objection I would have trouble accepting the hearsay evidence. As I have said it seems to me difficult to reconcile an estimate of a need for ongoing assistance with personal care at four hours per week with the plaintiff s activities as they were known for the two years following his injury. In terms of household assistance there was no evidence led as to the plaintiff s activities before his accident, the assistance that his parents were providing to him in the normal course of life prior to his injury and how that compared to his life after injury. [80] Finally it seemed to me that the opinions of Ms Johnson set out in her report concerning the care and assistance that the plaintiff required, 30 which she based on her own experiences as an occupational therapist as opposed to any information that she had received from the plaintiff, were more in accordance with what I would expect. In the absence of evidence the plaintiff has not established anything further. [81] Thus the plaintiff has failed to establish the threshold required, that is, that he received a minimum of 6 hours care per week for a minimum of 6 months. No damages can be allowed. Future Expenses [82] The plaintiff sought $5,000 for future recurring medical expenses. The defendant contended that there was no need for any significant treatment and that an amount of $2 per week would be a reasonable allowance for any future analgesics that were required. [83] It does seem that the plaintiff s likely future needs are restricted to analgesics from time to time. The plaintiff needs medication when he bumps his hand and that of course only happens from time to time. He gave evidence that the last time he had See T1-8/50 See T1-9/20 See Ex 4 at para 7.2 See Ex 15 para 7.1

13 13 taken any pain relieving medication was about 3 weeks prior to the trial. He thought that the longest that he had gone without taking medication was no more than a couple of weeks. 31 If he took medication he would take about 4 tablets repeated 2 or 3 times. [84] Obviously the evidence is fairly imprecise. It could hardly be anything but. In my view the defendant s analysis is reasonably accurate in reflecting that evidence. I allow $2000 under this head of loss. Special Damages [85] Special damages are agreed at $3, Of that sum it is agreed that interest can be allowed on $ Summary [86] In summary I assess the damages as follows: Pain, suffering and loss of amenities of life $22, Past economic loss $24, Interest at 1.95% for 3.9 years $1, Past loss of superannuation benefits at 9% $1, Future economic loss $400, Loss of superannuation benefits at 9% $36, Future pharmaceutical expenses $2, Special damages $3, Interest on $ at 1.95% over 3.9 years $ Total Damages $491, Orders [87] There will be judgment for the plaintiff in the sum of $491, [88] I will hear from counsel as to costs. 31 See T1-20/35