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[1999] TASSC 111
Supreme Court of Tasmania
1999-10-28
Underwood J
Original judgment source is linked above.
CITATION: Clark v State of Tasmania [1999] TASSC 111
Damages - Particular awards of general damages - Tasmania - Muscular ligamentous strain injury to lumbar spine - 42 year old utility man - Diminution of earning capacity - General damages $35,000.
Damages - Measure and remoteness of damages in action for tort - Measure of damages - Personal injuries - Method of assessment - Mitigation of damages - Failure to reduce alcohol consumption and lose weight - Onus of proof.
Judgment Number: [1999] TASSC 111
1 The plaintiff's claim is for damages for personal injuries sustained in an accident at work on 18 December 1995. The plaintiff was employed at the Police Academy, Rokeby as a utility man. On the day of the accident he and another utility man were required to move some commercial microwave ovens from the plant store to another place. The two men drove a small tractor into the plant store. The tractor was fitted with a bucket on the front. The first oven was put into the bucket and the tractor driven outside to a waiting truck. The plaintiff got onto the tray of the truck and his work mate hydraulically lifted, and then tilted the bucket so that the oven could be unloaded onto the tray of the truck. The plaintiff got the oven off the bucket and pushed it into position against the side of the truck. This procedure was repeated with the second oven. As the plaintiff was pushing the second oven against the side of the truck, he had his back to the tractor. For some reason not explained by the evidence, the tractor then rolled forward towards the plaintiff. As it did so, either someone called out, or the plaintiff otherwise became aware of the tractor's approach from behind and he tried to jump off the tray of the truck. He was not quick enough. The plaintiff managed to fling his left leg over the side of the tray but as he was twisting away, the bucket on the tractor pinned the calf of his right leg to one of the ovens. The plaintiff was not held for long. The tractor was immediately reversed and the plaintiff helped from the tray of the truck.
2 Although the skin on the plaintiff's right calf was broken and he was in a state of shock, the injuries did not appear to be serious. The plaintiff was taken to the hospital, but was not admitted. He was discharged on crutches and given analgesics. X-rays at the hospital revealed no bony injury. No sutures were required in the right calf. Notwithstanding the apparently minor nature of the injuries, the outcome for the plaintiff has been much worse than was anticipated shortly after the accident.
3 On 31 October 1998, interlocutory judgment for damages to be assessed was entered. In his final address, senior counsel for the defendant conceded that:
* the plaintiff was a substantially accurate and truthful witness; and
* the plaintiff's symptoms and disabilities, as described in his evidence, were caused by the defendant's tortious conduct.
4 The plaintiff was born in Tasmania on 25 July 1954. He was 41 years of age at the time of the accident and 45 at the time of trial. He married his second wife in 1990. He has grown up children by his first marriage and two children, aged 7 and 9 years, by his second marriage.
5 The plaintiff went to New Norfolk High School. He left at the end of year 10. He described himself as a below average student who excelled at sport. Between leaving school and starting work at the Police Academy, the plaintiff had quite a number of jobs interspersed with periods of unemployment. He has worked in the bush, as a storeman, as a barman, at Cadbury Schweppes Pty Ltd in Hobart, as a security officer as well as in a number of other unskilled or semi-skilled positions.
6 During his early years, the plaintiff played football with the New Norfolk under 17 team and later, with the euphemistically entitled Toorak Football Club at Rosebery. He then played football with Maydena, a club of which he is a life member. The plaintiff also played some badminton and tennis and helped coach junior sport. Because his wife played softball the plaintiff took an interest in this sport and did some umpiring. The plaintiff said that he enjoyed playing with his young children. He went out on social occasions and said that he "definitely [had] a few beers".
7 At home, the plaintiff maintained his house and garden and collected his own firewood. Although he enjoyed getting firewood, he did not enjoy his other chores, but nonetheless attended to them when necessary.
8 In 1993, the plaintiff worked for about eight months in the cell room at the EZ Company. Whilst there he suffered a carpal tunnel syndrome and was off work for a while. He underwent a surgical operation for this condition and made a successful recovery from it. The plaintiff was then unemployed for about 18 months, apart for some occasional work for a carpet cleaning company and in a fish processing factory. He said that he had in mind starting his own commercial cleaning business, for he had done a course in commercial cleaning at the Willson Training Centre. However, before anything came of this idea, he got a job as a utility officer at the Police Academy.
9 The plaintiff said, and I accept, that prior to the accident on 18 December 1995, he enjoyed good health and spirits.
10 The plaintiff started at the Police Academy on 15 February 1995. He was appointed on a three month contract. Since that initial appointment, the contract has been renewed every three months. The plaintiff was still employed at the Police Academy as a utility officer at the date of trial.
11 When the plaintiff started work at the Police Academy, he was one of a number of utility officers employed there. The duties of a utility officer included cleaning, setting up classrooms for lectures, cutting grass and general maintenance work, both inside and outside the buildings. At the date of trial, there were only two utility officers remaining at the Police Academy, one of whom was the plaintiff. The evidence was that a lot of the work formerly done by the utility officers, including most of the outdoor work, has been let out on contract to non-employees.
12 In the weeks immediately following the accident, the plaintiff took analgesics and consulted his general practitioner. He had some physiotherapy. Radiological examination of the plaintiff's back revealed no abnormalities. The plaintiff returned to work on crutches because he did not want to risk losing his job.
13 Eventually, the plaintiff was able to discard his crutches and the injury to his right calf healed without serious disability. However, there remained pain in his back. The plaintiff said that he has suffered from back pain continuously since the accident in 1995. He described the pain as being in the right side of his back and indicated from the witness box an area over the right hip commencing at a point approximately six inches above the belt line and running down into the right buttock. The plaintiff described the pain as a throbbing pain. He said that sometimes it was accompanied by a "twitch" in the groin area. The plaintiff said the extent of the pain varies according to his activities. The plaintiff said that he was never free of pain in his back, but the proper inference from the whole of the evidence is that he is pain free if he avoids activity.
14 In 1996 his general practitioner wrote the following description of the plaintiff's disabilities 10 months after the accident. It accords with the plaintiff's evidence:
"David was seen several times after that with his last visit being 7.10.96. His symptoms since his first visit to this surgery have essentially been similar but varying in severity. They tend to be worse after some aggravation by the duties he was performing at work. His present symptoms are a more or less continuous low back ache varying in intensity and an ache in his right calf which was troubling him when walking. It tended to tighten up and felt like a knot after walking distances."
15 As I have said, the injury to the right calf has now substantially resolved, although there are still isolated occasions when it tightens up after exercise.
16 Mr Rossi, consultant neurosurgeon, gave evidence for the plaintiff. Mr Rossi's opinion was that in the accident, the plaintiff "suffered a soft tissue compressive injury to his right lower limb [the calf] and a musco-ligamentous strain to his back". With respect to the location of the strain injury, Mr Rossi opined that the accident inflicted trauma and damage to the soft tissue in the anterior capsule of the sacroiliac joint, causing a dysfunction of the joint and pain. Mr Rossi went on to opine that although injuries of this kind usually resolve, when the site of trauma is the sacroiliac joint, resolution is often slow because it is very difficult to immobilise the joint. Mr Rossi said that, accordingly, the pain persists for a considerable time and in some cases, continues after the soft tissue damage has healed. He explained that this persistence of pain or chronic pain syndrome, arises from central sensitisation. Mr Rossi described this as a process by which the nerves from the injured site have conveyed the message of pain to the brain for so long that biochemical change in the nerves occurs and the message of pain continues to be sent to the brain, even though it has no physical origin. There was no challenge to this aspect of Mr Rossi's evidence and I accept it.
17 Since the accident, nearly four years ago, the plaintiff has suffered from pain in his back. According to his evidence, which I accept, there have been a number of incidents at work which have exacerbated his condition. He described an occasion in 1997 when he and another employee were using a jack to lift up a tractor in order to remove the cutting tray from under it. During the course of this manoeuvre, the tray slipped and the plaintiff bore the brunt of its weight for a few moments. This caused an episode of extreme pain.
18 There was another occasion when the plaintiff and another employee were lifting a large commercial mixing bowl in the kitchen at the Police Academy. The bowl slipped and the plaintiff bore the full weight of it causing what he described as a flare-up of his symptoms. The plaintiff described another incident at work which caused a flare-up. This time he said he was on a ladder and when he stretched out to one side the ladder slipped a little and he twisted his back regaining his balance.
19 The plaintiff said in cross-examination that during 1996, the symptoms in his back were improving but in 1997 and thereafter they have gradually worsened. This perception is corroborated by the record of prescription drugs consumed by the plaintiff. In 1996 the plaintiff was occasionally taking a Panadeine Forte, an anti-inflammatory drug and a few tranquillisers. In 1997 he started taking sleeping drugs, tranquillisers and anti-inflammatory drugs. By the end of that year he began taking the rather powerful analgesic, Mersyndol, and he kept on taking it in increasing quantities until not long before trial, when his doctor stopped prescribing it out of concern that he might become addicted to it.
20 By 1997 and 1998 the clinical picture became more complicated as the plaintiff became depressed because of his back pain and was prescribed anti-depressants.
21 Notwithstanding his disabilities, in 1997 and 1998 the plaintiff managed to hold down his job, albeit on light duties, and with quite a number of days off due to "flare-ups". He was able to coach, and sometimes umpire, football matches in the Southern Tasmanian Football Junior League, a competition in which his young son played.
22 During the years since the accident the plaintiff has been referred for physiotherapy, exercise in the gymnasium and pool and seen many doctors. None of this has resulted in any improvement in his symptoms.
23 His present treating general practitioner, Dr McArdle, described the plaintiff as a man with "limited coping facilities and skills". Dr McArdle said that the plaintiff had "... not been unwell in his life. He's always been a very physical gentleman and this loss of his physical fitness was very debilitating to his self-esteem". I accept that assessment of the plaintiff. It accords with my own perception of him, made whilst he gave his evidence.
24 Presently, the plaintiff is on what might be called a downward slide.
* First, his weight has increased markedly. He now weighs about 16 stone. This has had a two-fold adverse effect. The increased weight puts increased stress on the affected joint and it also makes exercise more difficult.
* Second, he is drinking to excess and appears to be alcohol dependent. The plaintiff always consumed a considerable quantity of alcohol but since 1996, this quantity has more than doubled. The plaintiff said in evidence that he drinks up to 18 cans of beer a night. He said that he drinks this amount of beer in order to relieve the pain, especially necessary since Dr McArdle refused him a prescription for Mersyndol.
* Third, not surprisingly, the relationship between the plaintiff and his wife and his children is at a very low ebb. The plaintiff is short tempered and spends little time with his children. He sleeps apart from his wife. She goes out alone.
* Fourth, he is depressed and some time ago contemplated suicide. In consequence of all these matters, the plaintiff is avolitional; he finds getting up and going to work in the morning difficult to face.
25 The plaintiff said that so far, he has been able to resist the temptation to drink alcohol on week day mornings but, as I understand him, he does so on the weekend. To make matters worse, the plaintiff has increased his consumption of cigarettes to 200 a week.
26 At Christmas time 1997 the plaintiff suffered from an acute and very painful episode of haemorrhoids. The medical opinion, which I accept, was that this was caused by the analgesics that the plaintiff had been taking. This painful condition was relatively short lived and controlled by medication.
27 The plaintiff said that even though he is on light duties at work, many of the tasks he is required to do cause him back pain. The plaintiff said that mopping causes back pain. Standing around for more than an hour causes back pain. Driving for less than an hour causes back pain. Lifting causes back pain. Walking substantial distances causes back pain.
28 To relieve this pain the plaintiff takes analgesics and/or rest, as well as alcohol on his return home from work. He is restricted in his movements and the pain interferes with his sleep. Until shortly before trial the plaintiff was taking up to eight Mersyndol tablets per day, as well as tranquillisers and anti-inflammatories.
29 At home the plaintiff has a number of incomplete maintenance tasks on which he works slowly and in his own time.
30 Dr McArdle's present treatment is physiotherapy, exercise, drug therapy and psychological support. Dr McArdle expressed the hope that in the long-term, the plaintiff's consumption of Mersyndol would not exceed four to six tablets per day. It was his opinion that there would continue to be a need for Mersyndol and for sleeping tablets although, "he [has] substituted alcohol for sleeping tablets unfortunately".
31 Dr McArdle considered that the plaintiff will need to use an anti-inflammatory gel and occasional anti-inflammatory tablets indefinitely. He considered that there will also be an indefinite need to take a preparation to avoid haemorrhoids, but I do not accept this evidence, for it is inconsistent with the computer generated list of prescription drugs that the plaintiff has taken since the accident. However, I do accept that the plaintiff is at risk of suffering haemorrhoids for so long as he takes analgesics and should he suffer an acute attack of this condition, he will need medication to treat it.
32 With respect to exercise, Dr McArdle considered that walking and swimming in the pool is, and will continue to be, beneficial for the plaintiff.
33 Dr McArdle referred the plaintiff to a fellow medical practitioner, Dr Russell Cooper, who practices naturopathy. Dr Cooper gave the plaintiff acupuncture and alternative drug therapy namely, Tahiti Noni Juice and Inflammastat. Although Dr McArdle said that the plaintiff is benefiting from the naturopathy from Dr Cooper, the evidence does not support that view. According to a text tendered in evidence and purporting to be produced by those who manufacture Noni Juice it "help[s] overcome many different health challenges and they include eczema, acne, warts, fibromyalgi, trauma, dandruff, lupus, sunburn, cancers, fevers, ageing ... " - the list ailments that Noni Juice will cure continues for some considerable length! The plaintiff, or at least his counsel, recognise that there is little to support the proposition that naturopathy and Noni Juice provide any benefit for the plaintiff for the claim in respect of the costs associated with Dr Cooper's consultations is limited to those that have already been incurred.
"The alcohol consumption ... is secondary to the pain. If we can adjust the pain level then the alcohol consumption should reduce."
"I consider David's back pain to be chronic. I consider it to be long-lived and likely to be fairly long-lived. I consider that unless something extremely unusual happens, like a miracle, he will be prone to frequent relapses of his pain with exacerbations to such a level that normal daily functioning will be impossible."
37 In general terms, Dr McArdle said with respect to the plaintiff's future treatment:
"Well certainly there will be physiological, like a pharmacological and physiotherapy component to it. I hope to include the naturopathy component that Russell Cooper has introduced. I think that emotional support from myself will be of no little input. I still think that the antidepressants will be required. So really I think in David's case it's going to be holistic, it's got to be, otherwise he will just go backwards."
Excluding the reference to naturopathy, Mr Rossi said that he agreed with that opinion. Subject to what follows, I accept his evidence in this respect.
38 Both Dr McArdle and Mr Rossi agreed without reservation, that if the plaintiff reduced his weight, substantially cut back his consumption of alcohol and adopted a more positive outlook on his future, his symptoms would improve. That seems to me to be no more than common sense.
39 However, whether any of these things will be achieved is problematical. Taking into account the plaintiff's pre-morbid personality and the effect that the accident has had upon him, weight loss, a reduction in the intake of alcohol and a more optimistic outlook will require more inner resolve than the plaintiff has been able to muster so far. The evidence of events to date raises grave doubts as to whether his present treatment regime will alter things for the better. Mr Read, for the plaintiff, submitted that the probabilities are that the plaintiff will move from treating doctor to treating doctor and his prognosis is bleak. There is considerable substance in this submission.
40 It seems to me that the appropriate finding on the whole of the evidence, the majority of which was not disputed, is that it is more probable than not that the plaintiff's present disability will persist indefinitely. There is a possibility that he will find the will, or obtain assistance to find the will, to stop drinking, lose weight and take a more positive view of his life, but the probable indications on the evidence are that the downward slide upon which the plaintiff finds himself will continue. It is most regrettable.
41 Although Mr Turner, counsel for the defendant, made submissions about the evidence of the plaintiff's excessive drinking, he did not challenge the evidence that it was due to the plaintiff's personality and his perception of pain. Further, Mr Turner did not submit that the plaintiff had failed to take any reasonable steps to mitigate his loss, injury and/or damage. I turn now to assess the plaintiff's claim under various heads.
42 It was not disputed that the defendant's tortious conduct had diminished the plaintiff's earning capacity. Accordingly, the plaintiff is entitled to recover damages for that loss insofar as it has been, and may be, productive of financial loss. See Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347.
43 Although the plaintiff was employed at the Police Academy on a three month contract which has been renewed without interruption since his engagement, he was given notice on 2 June 1999 that he will be appointed a permanent member of the State Service. The letter of appointment advised that the plaintiff was on six months' probation, and subject to that being completed satisfactorily, he will become a permanent employee in the State Service.
44 Evidence was given by Superintendent Brazendale, the Superintendent of Human Resources of the Police Department. I accept Superintendent Brazendale's evidence. It is quite clear that the plaintiff is employed by a tolerant and caring employer. Superintendent Brazendale was aware in general terms of the plaintiff's accident and his disabilities. He learnt of the plaintiff's alcohol consumption when he was in the witness box. Superintendent Brazendale said that this might cause him to extend the probationary period. He said that he might also seek medical advice and see what assistance could be given to the plaintiff. Superintendent Brazendale said that no one had mentioned to him that the plaintiff had a drinking problem, but he was quite definite that this would not affect his employment as a permanent member of the State Service unless he failed "dismally in the next six months". He added:
"So - I can't see anything changing in six months' time, unless he starts appearing at work drunk or affected to the extent that he is not performing his duties as well as he ought to be. And then we would put in a series of measures to counsel and support and - but even at that stage he is not going to be terminated - or highly unlikely."
45 The plaintiff's manager at the Police Academy, Mr Ederle also gave evidence. I accept his evidence as well. He said that the plaintiff was on light duties and performed his work satisfactorily. He said:
"Mr Clark's duties have changed in so much that he's not been required to do any outside manual labour due to his injuries which would include mowing, utilising the machinery to mow the 80 acres that belonged to the Academy. He's not required to do any sort of weeding or gardening, utilisation of the chain saw to chop down trees, loading of heavy equipment on to trailers, all these sort of things that he would normally have done in his position. Also a lot of the heavier utility work, such as getting into small spaces to change difficult light bulbs, climbing up ladders, windows that require carrying a heavy bucket of water up a ladder, that sort of thing."
46 The nett effect of the evidence from Superintendent Brazendale and Mr Ederle is that the State Service is willing to make the plaintiff a permanent employee in the knowledge that he suffers from back pain, will need days off because of this condition and is only able to perform light duties. Further, the plaintiff's likely alcohol dependency will not put his employment at risk unless it seriously affects his work and only then after counselling and support. The plaintiff's employer is so tolerant and caring that the risk of the diminution in his earning capacity being productive of loss of income from the State Service is remote. However, although the risk is remote, if it becomes a reality, the loss will be substantial for the plaintiff is unlikely to find alternative employment having regard to his age, limited skills, experience and disabilities. Upon this basis, damages for diminution of earning capacity cannot be assessed by mathematical calculation. It is a matter of judgment, bearing in mind that the plaintiff is now 45 years of age and is presently earning a nett weekly income of $382. In addition, his employer makes payments in accordance with the superannuation legislation and provides the plaintiff with breakfast and lunch at the Academy free of charge on most week days.
47 The plaintiff claims damages under this head on three other bases. In January 1997 the plaintiff sought and obtained permission from the Commissioner of Police to undertake employment outside the State Service as a part-time security officer for Mr Dennis O'Day.
"It is noted that this employment will be for approximately four to five hours per week at night and you have indicated that it will not interfere with your regular duties at the Police Academy."
49 The plaintiff said that he wanted to do the security work to earn some extra money. He said that he started work for Mr O'Day in about February 1997 but before long he had to give it up because he found that the medication he was taking made him drowsy and the standing made his back ache. The plaintiff estimated that he worked as a security officer for about 30 hours in 1997.
50 Mr O'Day gave evidence. He produced his wages records. They established that the plaintiff worked 39½ hours for him during 1997. The work was carried out on three separate days during that year. Mr O'Day generally confirmed the plaintiff's evidence as to the reason why he did not take up more work. Mr O'Day said that there was plenty of work available for a good security officer. He said that "I could give him 30 hours a week as we speak".
51 I have some reservations about the accuracy of Mr O'Day's claim that he has so much work presently available for the plaintiff that he could employ him for 30 hours a week were he able to do it. At all events, had the accident not intervened, the plaintiff would not have been available to work for Mr O'Day for 30 hours a week because of his job in the State Service. The probabilities are that had the accident not occurred, the plaintiff would have worked for Mr O'Day for not much more than the time stated in the letter of permission from the Commissioner of Police, namely four to five hours per week.
52 The plaintiff's claim for loss of capacity to earn income as a security guard between the date of the accident and the date of trial was limited to the period commencing 1 August 1997. At that time, the gross hourly rate was $12.25, plus superannuation contribution. There was no evidence of the plaintiff's gross earnings in August 1997 and therefore it is not possible to calculate the precise amount of tax that has to be deducted from the gross hourly rate of $12.25. There was no expert opinion evidence with respect to the loss of superannuation, so this loss will have to be taken into account in a general way. Accordingly, I determine that had the accident not intervened the plaintiff would have earned something in the order of $45.20 nett per week working for Mr O'Day from 1 August 1997 until 1 October 1999, a period of 111 weeks. This amounts to $5,017. The total sum should be rounded up to $5,100 to take account of lost superannuation during this period.
53 With respect to the future, I am satisfied that but for the accident, the plaintiff would have continued to work part time for Mr O'Day for roughly the same number of hours per week. Mr O'Day said that the present rate of pay is $13.41, plus superannuation. I think however, that it is unlikely that the plaintiff would have continued this part time work until he reached the age of 65, a period of 20 years. The probabilities are that when his children became self supporting and the need for extra money decreased, the plaintiff would have worked less hours for Mr O'Day or a similar employer, and eventually ceased altogether prior to retiring from the State Service. After making allowance for tax, the present nett weekly loss is in the order of $48.88. Application of the 7% discount tables to that weekly sum (without allowance for mortality) for 12 years produces a sum of $20,969. This sum should be rounded up to $21,750 to allow for lost superannuation.
54 The plaintiff also gave evidence that when he first started work at the Police Academy he used to be employed from time to time as a casual barman. It appeared that there was a social club at the Academy and its members employed the plaintiff from time to time to work as a barman, he having acquired the necessary skills in his previous jobs. The plaintiff said, and I accept, that it would no longer be possible for him to do this work because standing about on the concrete floors would make his back ache too much. However, since the accident the system at the Academy has changed and the social club no longer exists. Although there still are dinners and other social occasions at the Academy, I think it is unlikely that the plaintiff would have been employed as a barman even if the accident had not intervened, except on a very few occasions each year. An allowance for this loss in the past and in the future will be taken into account in a general way.
55 I find that the plaintiff will continue to take days off work from time to time because of "flare-ups" in his back pain. At the date of trial the plaintiff had no entitlement to sick leave as he had used it all up. He will not be entitled to any further sick leave until 15 February 2000 when he will be credited with 44 days. Mr Read submitted that it was reasonable to assume that the plaintiff will require some, if not all, of his future sick leave for illness or injury not related to the accident which is the subject of this action and in consequence, the plaintiff is entitled to receive an award for days off that he will have to take due to exacerbations of his back pain. The plaintiff cannot include, as part of his damages for lost earning capacity, loss arising from periods of inability to utilise that capacity to earn income if such loss is met by payments of sick leave. See Graham v Baker (supra). However, the plaintiff's evidence persuades me that there is a risk that in some years, he will use up all his sick leave entitlements and suffer loss of income by reason of days off due to exacerbations of back pain. This claim is a small one to be taken into account in the general assessment of damages for lost earning capacity.
56 Taking all the foregoing into account, I assess the plaintiff's damages for past lost earning capacity at $5,100. With respect to the future, I assess damages for lost earning capacity in the sum of $90,000 but this sum must be reduced for the contingencies of life. There are, as is always the case, pluses and minuses in this part of the assessment. The plaintiff may have become alcohol dependent in any event and his smoking may have increased as it has done, thereby increasing the risk of early death. On the other side, the plaintiff's motivation is low and coupled with his difficulty of anger management, may result in early loss of job. The appropriate course is to reduce this head of damages by 15% to $76,500 rounded off.
57 This claim is confined to the cost of consultations with Dr Cooper upon the recommendation of the plaintiff's treating practitioner. The evidence of these costs and of the Noni Juice and Inflammastat were not disputed and are allowed in the sum of $283. The remainder of the past medical expenses have been paid in accordance with the provisions of the Workers Rehabilitation and Compensation Act 1988.
58 Dr McArdle said that he hoped that the plaintiff would need less than 100 Mogadon tablets a year, although it seems that the plaintiff has in part, substituted alcohol for a prescribed sleeping drug. The plaintiff said that he took one tablet of Mogadon about 2 - 3 times a week. Evidence that this drug cost $12.75 per 25 tablets was not disputed. It is reasonable to find in accordance with the particulars, that the plaintiff has a present need for 75 Mogadon tablets per year, which is a weekly cost of $0.73.
59 I find that the plaintiff needs a strong analgesic such as Mersyndol. With respect to this, Dr McArdle said:
"I would hope to keep the Mersyndol Forte at its current level but I think that that's unlikely to be sustainable in the long term given his past history and I feel that he'll probably be using between four and six tablets of Mersyndol Forte on an average every day. That's what it has been prior to the introduction of the naturopathic arm of therapy."
60 The likelihood is, as the plaintiff said in his evidence, that when the supply of Mersyndol from Dr McArdle is reduced the plaintiff will substitute alcohol to relieve his pain. It is worth noting that Dr McArdle last wrote a prescription for Mersyndol approximately one month before trial. The plaintiff said that since then he obtained a script for mersyndol from Dr Cooper but he did not disclose this to Dr McArdle. The plaintiff's evidence was that he uses up to eight Mersyndol a day. The appropriate finding to make is that the plaintiff has a present need for five Mersyndol per day. The undisputed cost of this drug was $40.55 per 60 tablets. Upon that basis the present weekly cost is $23.72.
61 The Voltaren gel that the plaintiff rubs into his back costs $33.60 per tube. With respect to this preparation, Dr McArdle said "Voltaren jelly is a transcutaneous application of the non-steroidal anti-inflammatory Voltaren or Diclofenac. It works as an anti-inflammatory and is very good in all sorts of musculo-skeletal pain." It was his opinion that the plaintiff's present need for this jelly was about one tube per month which equates to a weekly cost of $7.75.
62 The plaintiff said that he takes Coloxyl as a prophylactic when he feels that there is a risk of the onset of haemorrhoids. He said that on this basis he uses about 3 packets of 30 tablets per annum. It may be that this rate of consumption is a little excessive, but the medical evidence supports the occasional use of this drug and the plaintiff was not challenged about the rate of use. Accordingly, I find that the plaintiff has a present need for 90 Coloxyl tablets per year. The cost of a box of 30 tablets is $3.70, so the weekly need can be assessed at $0.21.
63 I accept Dr McArdle's evidence that the plaintiff will need to consult him about once every three weeks at a cost of $34 for a standard consultation. To this sum must be added travelling costs which the undisputed evidence showed was $1.80 per week. Further, the evidence disclosed that there was a substantial risk that the plaintiff may need psychiatric assistance and perhaps other expert help to avoid sinking further into a morass of depression and alcoholism. To take into account that risk in a modest way, the sum of $1.80 should be increased to $2.00. This equates to a weekly cost of $12.00.
64 The plaintiff has had physiotherapy. He substituted naturopathy for this treatment. Dr McArdle considered that there was a need for physiotherapy. The undisputed cost of physiotherapy is $40 per session. There is the cost of travelling to get there. The particulars of damage make a claim for physiotherapy once a month but I do not think that the evidence sustains a finding that the plaintiff has a present need for physiotherapy as frequently as once a month. It is reasonable to assess this need at $8.00 per week.
65 Finally, under this head there is a claim for the cost of gymnasium subscription of $699 per annum. As to this, Dr McArdle was of the opinion that gym work and swimming, particularly the latter, was beneficial for the plaintiff's back. However, the plaintiff said:
"I mainly go for walking in the pool and in the hydro pool and in the spa, the gym works [sic] seems to irritate me, I can do the gym work but it seems to irritate me back."
66 The plaintiff explained that he is not a good swimmer and prefers to just walk in the pool. His evidence left me with the impression that he did not go twice or thrice weekly, as he claimed he did. $699 per annum is $13.44 per week. As he does not use the gymnasium he could easily use a public swimming pool which might be cheaper but there was no evidence of that. In the end, the evidence warrants a finding that it is more probable than not that the defendant's tort has created the need for twice or thrice weekly visits to a swimming pool and as it was not suggested that the plaintiff could mitigate this loss by using cheaper facilities, the plaintiff is entitled to have this aspect of his damages assessed on the basis of $13.44 per week, plus a component for travelling which increases it to $23.00 per week.
67 Together the plaintiff's present medical and pharmaceutical needs cost $75.41 per week. Dr McArdle's opinion was that these needs will probably last indefinitely. I find accordingly, but reduce the award for attending the gymnasium as I find it unlikely that the plaintiff will attend there after he reaches the age of about 60 years. The plaintiff's life expectancy is 35.7 years. Application of the 7% discount tables, taking into account mortality, to the weekly figure of $76.74 produces a figure of $47,432. This figure must be reduced to $46,000 to take account of the finding that the plaintiff will not use the gymnasium after he reaches the age of about 60 years. Interestingly, the mortality factor reduces the discounted calculation by about 12% which is within the range of deduction for contingencies. Early death is the only relevant contingency applicable to this head of damage in this case.
68 The plaintiff has had a very bad outcome from a relatively minor injury. He is not well equipped to overcome the situation in which he finds himself. He is at risk of losing his employment, which is probably the only source of his self-esteem. The outlook is not good. Although he has now reached the age when it is unlikely that he would have engaged in much active sport even if the accident had not happened, the loss of his amenities of life is substantial. He is in continual pain. The pain increases with activity. His movements are restricted. His relationship with his wife, his children and his fellow employees has been adversely affected. He is entitled to a substantial award of general damages. I assess his general damages in the sum of $35,000.
70 There will be judgment for the plaintiff against the defendant for $163,000.
# Clark
State of Tasmania \[1999\] TASSC 111
(1961) 106 CLR 340