JACKSON v MAZZAFERO

Judgment 1MACFARLAN JA: I agree with Hoeben JA. 2HOEBEN JA: Nature of proceedings By Statement of Claim filed 2 June 2009 the appellant sued the respondents for injury she received on 3 December 2007 when she fell in the entrance area of commercial premises owned by the respondents, fracturing her left wrist. 3In their Defence, the respondents admitted ownership of the premises and that they owed a duty of care to the appellant, but did not admit injury and loss and pleaded contributory negligence, intoxication and obvious risk. 4The matter was heard by McLoughlin DCJ on 6 - 7 September and 19 November 2010. His Honour handed down judgment on 10 February 2011. His Honour found in favour of the appellant and entered judgment for $173,707. 5The judgment was made up of the following components: (i) Non-economic loss - 26 percent - $40,000. (ii) Past out-of-pocket expenses - $17,832.00 (iii) Past economic loss - $42,000. (iv) Past superannuation loss - $4,620. (v) Future economic loss - $30,000. (vi) Future superannuation loss - $3,300. (vii) Past domestic assistance - $13,455. (viii) Past lawn mowing - $2,500. (ix) Future domestic assistance - (lawn mowing) - $10,000. (x) Future domestic assistance generally - $10,000. 6The appellant appeals against the quantum of damages awarded by his Honour. Specifically, the appellant challenges the damages awarded under the following heads: Non-economic loss, past economic loss, future economic loss, future domestic assistance and future out-of-pocket expenses. Factual background 7The appellant was born in January 1950 and except for a short period in the 1970's when she was caring for her children, worked as a registered nurse for over 40 years. At the time of the accident, the appellant was divorced and living on her own in a three bedroom townhouse that had a small garden. 8The appellant commenced working in the orthopaedic ward at the Bankstown Hospital as a registered nurse in 1988. In 2007 the appellant was working 30 hours per week in that ward. Over the years she suffered some back injuries and developed an anxiety condition, particularly after the death of her mother in 2003. Despite this, the appellant remained in employment. 9In July 2007 she had a fall and fractured her right wrist. She went off work and did not return until October 2007. Upon her return to work, she was working 20 hours per week in the orthopaedic ward, but had negotiated with her employer to return to 30 hours per week in January 2008. On 3 December 2007 she had the fall which was the subject of these proceedings. She once again went off work. 10As a result of the fall, the appellant suffered a severely comminuted fracture of her left wrist which required internal and external fixation. The fixators were removed in January 2008. Thereafter the appellant was diagnosed with reflex sympathetic dystrophy (regional pain syndrome) in relation to her left wrist. This condition produced changes in temperature and colour and pain. The condition gradually resolved. 11The appellant became anxious and depressed about her situation, particularly with regard to whether or not she would be able to return to work. She underwent psychological treatment and was placed on medication which assisted her with her anxiety. By the date of the trial, his Honour found that her psychological difficulties caused by the fall had largely resolved. 12The appellant returned to work on 26 May 2008. Because she was unable to perform the heavy lifting work required in the orthopaedic ward, she was transferred to the neonatal ward. In the neonatal ward, the appellant worked 24 hours per week or 30 hours per week, depending on the roster. 13For approximately six months after the fall, the plaintiff received assistance in relation to her housework from a friend, Ms Zieba, and her daughter. At the time of trial, the appellant had engaged a commercial lawn mowing service because she was not able to perform that activity. Findings of trial judge 14His Honour accepted the appellant as a witness of truth. He found that had the injury to the appellant's left wrist not occurred, she would have returned to the orthopaedic ward, working 30 hours per week, in January 2008. He found that as a result of the injury to her left wrist, she was not able to return to work in the orthopaedic ward. 15His Honour found that the appellant had suffered a significant injury with psychological sequelae, although the psychological sequelae had abated. He found that there was a real possibility that the appellant would come to further surgery in the future, in the nature of a wrist joint arthrodesis. His Honour found that the arthritis in the left wrist was either caused or significantly exacerbated by the injury and would continue to worsen. His Honour found that it was "probably unlikely" that the surgery would occur in the next five years. 16The appellant complained of left shoulder problems, which had developed after the injury to her left wrist, but which had become asymptomatic by the time of trial. His Honour concluded that the shoulder problem "may or may not be related to this accident, I make no finding in that respect". Non-economic loss 17Having reviewed the medical evidence, his Honour said: "I recognise the plaintiff's age in the assessment of general damages pursuant to the Civil Liability Act, however, the plaintiff has had significant restriction imposed upon her ability to lead a life within her home, a social life and a working life with some associated fears now abated in relation to that injury. I assess the plaintiff's injury pursuant to the Civil Liability Act as some 26 percent of a most serious case." (RAB 50R). 18The appellant submitted that his Honour erred in his assessment of non-economic loss because he had failed to take into account the prospect of future deterioration, in particular that there was a real possibility that she would require further surgery, because the arthritis in her wrist would worsen. 19The appellant then reviewed the various features of her injury, i.e. the reflex sympathetic dystrophy, the pain from arthritis in the wrist joint, and the lifting restriction on any weight beyond 7 kgs. She referred to the opinions of Dr Dave, the treating orthopaedic surgeon, and Dr Deveridge, another orthopaedic surgeon as to those matters. The appellant also referred to the adjustment disorder and anxiety state which had developed following the injury, which she accepted had resolved by the date of the trial. 20The appellant submitted that his Honour should have found that the shoulder injury was caused by the fall. In failing to make that finding, the appellant submitted, his Honour had failed to take into account a significant feature of the appellant's injuries, even though she accepted that the shoulder condition was asymptomatic at the time of trial. By reference to those matters the appellant submitted that his Honour's assessment of Non-economic Loss was plainly inadequate. 21The principles relevant to a challenge to an assessment of non-economic loss were set out in Basha v Vocational Capacity Centre Pty Ltd [2009] NSWCA 409 at [101] by McColl JA (with whom Tobias JA and McClellan CJ at CL agreed) as follows: "101 The challenge to the primary judge's conclusion on non-economic loss must be determined in accordance with the principles explained in Wynn Tresidder Management v Barkho [2009] NSWCA 149 (per McColl JA, Tobias and Young JJA agreeing): "110 The approach taken when an appellate court is asked to review a primary judge's conclusion as to the severity of a plaintiff's non-economic loss by reference to a 'most extreme case' was discussed in Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 (at [49]) as follows: '49 The exercise in which the primary judge was involved in determining non-economic loss is neither scientific nor normative. While it is not wholly at large, it involves an exercise of discretion with which the Court will rarely intervene: Southgate v Waterford (1990) 21 NSWLR 427 at 440. Having regard to the nature of the exercise, a finding that a particular case is or is not 'a most extreme case' has been said to be not 'readily ... susceptible of appellate review' as 'its resolution ... involve[s] questions of fact and degree, and matters of opinion, impression, speculation and estimation calling for the exercise of common sense and judgment': Dell v Dalton (1991) 23 NSWLR 528 at 533 per Handley JA (with whom Kirby P and Priestley JA agreed); Rabay v Bristow [2005] NSWCA 199 at [62] - [67]. Unless it can be demonstrated that the trial judge has erred in the application of principle, in order to attract appellate review it will be necessary to show that the conclusion reached by the primary judge was manifestly erroneous: Ellis v Rantzos (t/as Rantzos Hairdressing) [2005] NSWCA 266 at [43] per Basten JA (with whom Handley and Santow JJA agreed).' 111 A like approach has been taken by the West Australian Court of Appeal: see Hammond Worthington v Da Silva [2006] WASCA 180; Den Hoedt v Barwick [2006] WASCA 196; (2006) 46 MVR 30; Insurance Commission of Western Australia v Weatherall [2007] WASCA 264". 22His Honour clearly had in mind all of the disabilities identified by the appellant in her submissions (except for the shoulder) because his assessment of non-economic loss followed a comprehensive review of the content of the medical reports. All of the features of the disabilities, to which the appellant drew attention, were in the quotations which his Honour included in his review of the medical evidence. 23Even if his Honour had not specifically referred to every disability flowing from the fall, this would not provide a basis for interfering with his Honour's assessment. As the passage from Pham makes clear, an assessment of non-economic loss while needing to be based on evidence is an essentially impressionistic and discretionary exercise. 24The question of whether the appellant suffered an injury to her shoulder which was related to the accident is not easily resolved. The general practitioner, Dr Petroulias, who saw the appellant on a number of occasions was only prepared to say that there "may" be a causal relationship between the appellant's complaints of pain in the shoulder and the fall. Her treating orthopaedic surgeon, Dr Dave, who also saw the appellant on many occasions, did not record any history of the shoulder pain following the removal of the fixators. If she had complained of shoulder pain at that time he would almost certainly have noted it. Dr Dave was meticulous in recording complaints by the appellant and observations made by him of her condition. 25Dr Deveridge, who saw the appellant once in January 2009, attributed the pain in the shoulder to the accident but in so doing, relied entirely upon what he was told by the appellant. In those circumstances, his Honour was not obliged to take the shoulder injury into account when assessing the appellant's damages. 26Even if his Honour were in error in not taking account of the shoulder injury in his assessment of non-economic loss, the injury itself was relatively minor when measured against the other disabilities caused to the appellant by the fall. On the appellant's history, pain in the shoulder did not develop until the fixators were removed in January 2008. Dr Deveridge recorded that by January 2009 there was no pain in the left shoulder. 27I am satisfied that the assessment of 26 percent of a most extreme case was well within the range of assessments of non-economic loss for the appellant. This ground of appeal has not been made out. Past economic loss 28The appellant challenged his Honour's assessment of past economic loss on the basis that insufficient reasons had been provided by his Honour and that his Honour's assessment was against the weight of evidence. 29As the above schedule of damages makes clear, the past economic loss component was made up of three parts - the 22 weeks immediately following the fall, the loss of long service leave and a buffer to cover the remaining elements of the appellant's claim for past economic loss. His Honour set out his reasons for those calculations as follows: "The first difficulty to arise in relation to past economic loss is the plaintiff at the time had returned to orthopaedic duties, working twenty hours per week and no doubt would have increased those hours. She returned to work at the end of May 2008 in the neo-natal ward, was commencing to work on twenty hours per week and that work has then varied between either thirty hour shifts per week or twenty four hour shifts per week. There is no real evidence to indicate that the work in the orthopaedic ward would not produce shifts of the same duration. That is a difficulty in relation to the determination of the plaintiff's loss because of this injury. The other factor is that there is a claim made for the plaintiff's loss of payments, being the nurse in charge of the ward. While some qualification is obtained within the submissions by learned counsel for the plaintiff as to how that should be arrived at, there are difficulties in that it is not clear as to the number of hours per week to be worked or that the plaintiff would have worked in an orthopaedic ward. Whether the psychiatric or psychological difficulties in relation to the orthopaedic ward would have prevented her from being the nurse in charge, were matters not explored in the plaintiff's case and their absence make it difficult to assess the plaintiff's past economic loss. Whilst it is clear in my view as expressed, the plaintiff cannot carry out the work in the orthopaedic ward, or should not, she is still earning whilst working in the neo-natal ward, similar monies when working the twenty four to thirty hour shift. I accept that there is a difference between $1,089 net per week which the plaintiff would have earned in the orthopaedic ward and the $571 net per week which she actually earned as revealed in her 2007 tax return for the period of twenty two weeks. The difficulty with this is it is not as clear cut as that for the reasons I have indicated above. The plaintiff makes a claim for $11,396 and i think it is appropriate only to allow compensation in the sum of $10,000 for the wage loss, bearing in mind the plaintiff at the time had not returned to beyond twenty hours per week, although it was her intention to do so as soon as she could thereafter. There are then claims of a loss in charge of the orthopaedic ward for three years at $400 per week loss of long service leave for the period she was off work. The difference between the $1,089 net per week and the $867 net per week that she actually earned in 2009, a difference between $1,089 net per week plus ten percent which it is alleged is the increase in earnings for 2010. The matters which I have referred are all contributory to the difficulties in determining an appropriate figure to properly compensate the plaintiff for this past loss. In relation to the long service leave I am of the view - five months - and there is no evidence that comes from the hospital as to this loss, I propose to allow a figure in the sum of $2,000. In relation to the other three, the loss of being in charge, and the difference between the figures that have been referred to, the totality of those figures come to approximately $100,000. I do not think that it is appropriate to award a figure anywhere near that because of the difficulties to which I have referred, and I allow the sum of $30,000 for that past general economic loss." (RAB 51A-53L) 30As the above quotation makes clear, there is considerable force in the submission that the reasons provided by his Honour for his assessment were not adequate. In fairness to his Honour, however, while his reasons may be sparse to the point of error, the evidence which he had before him upon which he was asked to base his conclusions was exiguous in the extreme. The other difficulty is that his Honour misunderstood the evidence. Accordingly, it is necessary to reassess the appellant's claim for past economic loss in accordance with the evidence. This is a task which the Court can carry out for itself since his Honour has already made all of the necessary demeanour and credit findings in relation to the appellant's evidence. 31It was not correct for his Honour to say that there was "no real evidence to indicate that the work in the orthopaedic ward would not produce shifts of the same duration". There was such evidence (Black 35J-N). What the appellant said was that in the orthopaedic ward she was able to work thirty hour shifts but in the neonatal ward the shifts varied between 24 and 30 hours, depending upon her roster. At the very least this would indicate a loss to the appellant of 3 hours per week when working in the neonatal ward by comparison with the orthopaedic ward. 32The appellant's claim for economic loss, both past and future, was based upon taxation returns for the years ended 30 June 2007, 30 June 2008, 30 June 2009 and 30 June 2010, together with a single "Summary of Earnings" document which covered the period 12 November 2007 - 25 November 2007, being just before she was injured (Blue 261). At that time the appellant was working 20 hours per week in the orthopaedic ward and the net pay recorded was $1,453.36 for those two weeks. Using those figures, the appellant extrapolated what she would have earned for 30 hours per week at $1,089 net. That calculation appears to have been accepted by the parties at trial as accurate. 33There was no issue that following this fall, the appellant was off work for 22 weeks and that during this time she could not perform any work. By reference to the "Summary of Earnings" document, her loss during this period would have been $726.68 net per week until January 2008 when on his Honour's findings, she would have increased her hours of work to 30 so that thereafter her net loss per week would have been $1,089. There was no basis in the evidence to justify why his Honour did not award to the appellant her full wage loss for that period, i.e. $22,508.72. 34His Honour appears to have misunderstood the nature of the monies which the appellant was receiving while she was off work. She was receiving $571 net per week by way of long service leave. She had no sick leave left and because the injury occurred in non-employment circumstances, she was not entitled to workers compensation. His Honour should not have taken that $571 net per week into account since that was not money paid to the appellant as a result of the accident, but because of her employment entitlements generally (Zheng v Cai [2009] HCA 52, 239 CLR 446; National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 at 598-600; Redding v Lee (1983) 151 CLR 117 at 137). Accordingly, that aspect of his Honour's award of damages for past economic loss needs to be corrected. 35His Honour's difficulty in assessing the balance of the appellant's claim for past economic loss, i.e. 26 May 2008 until the date of judgment, arose largely from the way in which submissions were made to him and from the paucity of evidence. This Court was provided with a copy of the calculations for past economic loss which were placed before his Honour (mfi (1)). It is clear from those calculations that the appellant's submissions at trial misunderstood the contents of the "Summary of Earnings" document. It is, of course, entirely unexplained why only one "Summary of Earnings" document was placed before the court covering a period of 2 weeks when there must have been such documents available for the whole of the period. 36In submissions at trial, a claim was made on behalf of the appellant for $62,400 on the basis that while she was working in the orthopaedic ward she received an extra allowance for being "in charge" which she did not receive in the neonatal ward. It was submitted that the value of this extra payment was $400 per week. When, however, one looks at the "Summary of Earnings" it can be seen that the extra amount for being "in charge" was $25 per week. His Honour was obviously uneasy about the accuracy of the figures put to him and that is why he awarded a $30,000 buffer for that part of the claim for past economic loss. 37The tax returns which were in evidence show the appellant's weekly wage for the year ending 30 June 2009 to be $869 net and $925 net for the year ending 30 June 2010. On the basis that the extrapolated figure of $1,089 net per week correctly reflected what the appellant would have been earning working 30 hours per week in the orthopaedic ward, there is a difference of $220 net per week for the 2009 tax year and $164 net per week for the 2010 tax year. The average net loss for the appellant over the period would therefore be $192 net per week. This is reasonably close to the appellant's own estimate of her net loss per week of $150 (Black 35E). 38If one calculates the weekly loss for the appellant at $192 net per week from 28 May 2008 until 10 February 2011 when judgment was handed down, the figure reached is $27,072. Accordingly, his Honour's buffer of $30,000 was a reasonable approximation of the appellant's actual loss and there being no cross-appeal, it should not be interfered with. 39It follows from the above analysis that his Honour's award of damages for past economic loss of $42,000 should be set aside and replaced with a figure of $52,508.72. There will need to be a commensurate adjustment to the past superannuation loss figure. Future economic loss/loss of earning capacity 40His Honour dealt with this part of the appellant's claim as follows: "As to the future economic loss the plaintiff is in a situation where obviously she cannot return to the orthopaedic ward. She is capable of working the 24 and 30 hours per week which she does in the neonatal ward, differential only for the extra hours worked in the orthopaedic ward and when being in charge. It is impossible to give an accurate weekly loss for this figure. In addition to that there is to be taken into account the psychological difficulties the plaintiff has had, her health problems in relation to back on prior occasions, the shoulder which may or may not be related to this accident, I make no finding in that respect, and the question that may add to the damages is the question of the possibility of surgery, although this would only be a deferral, and it is probably unlikely to have occurred within the next five years. I am of the view the appropriate figure to allow is that of $30,000 for future economic loss." (RAB 53.M-53Y) 41The appellant submitted that the figure of $1,089 net per week which was agreed as being the likely net weekly earnings of the appellant in the orthopaedic ward as of January 2008 should be increased by 10 percent to represent what the appellant would have been earning in the orthopaedic ward as of the date of judgment. On that basis, she submitted that there was an actual loss of approximately $270 net per week which could and should have been used by his Honour to calculate future economic loss, rather than the modest buffer which his Honour chose. 42The appellant submitted that his Honour should not have taken into account her pre-existing psychological difficulties and pre-existing back problems as discounting her claim for future economic loss because these matters had not prevented her in the past from working in the orthopaedic ward. The appellant submitted that there was no evidentiary basis for his Honour taking those matters into account as a discounting factor for the future. 43The appellant submitted that his Honour did not properly take into account the possibility that she might have to undergo surgery before she turned 65. If that occurred, not only would she lose time off work but the nature of the operation was such that she might well be forced into a premature retirement from nursing at that point in time (Dr Deveridge Blue 135N). 44His Honour was justified in saying that it was "impossible to give an adequate weekly loss" for future economic loss. It is surprising and unexplained why evidence was not placed before his Honour as to the earnings of a registered nurse working 30 hours per week in the orthopaedic ward. Even a current "Summary of Earnings" document in respect of the appellant would have been useful. On the other hand, there was no basis for his Honour taking into account the appellant's pre-existing psychological problems and back problems as a discounting factor for the future (which was a relatively short period) when there was no evidence that they had adversely affected her employment in the past. 45The figures relied upon by the appellant to indicate an actual wage loss of approximately $270 net per week at the time of judgment are unreliable in the absence of any more recent wage documents than the "Summary of Earnings" for two weeks in November 2007. It is reasonable to accept that there would be some increase in the earnings of the appellant, had she continued to work in the orthopaedic ward, between what she was paid in November 2007 and what she would have been paid in February 2011. The extent of that increase is, however, not known. There is also the added complication that the "in charge" allowance of $25 per week would no longer be applicable since at the time of trial, the appellant had just started receiving that allowance in the neonatal ward. The figures suggested by the appellant give a false precision to what can only be a broad estimate given the paucity of evidence. 46Nevertheless, the appellant's tax return for the 2010 tax year, by reference to what the appellant would have been earning in January 2008, shows a clear weekly loss. Even allowing for the "in charge" allowance now being paid for her work in the neonatal ward, it seems that as of February 2011 the appellant was suffering a weekly loss in the order of $200 net per week. This is a very approximate figure but it can be used to check the reasonableness of the buffer awarded to the appellant by his Honour. 47Using the 5 percent tables and deducting 10 percent for vicissitudes, given the short period involved, a net loss of $200 per week until the appellant turns 65 would produce a loss of $36,000. That figure, of course, makes no allowance for the chance that the appellant might have to undergo an operation which would not only cause her to lose time from work, but to use the words of Dr Deveridge "might well force her into a premature retirement". 48Taking all those matters into account, I conclude that the buffer awarded by his Honour does not adequately reflect the appellant's future loss of earning capacity. I would allow a buffer of $40,000. That would result in a commensurate adjustment to the future loss of superannuation figure. Future domestic assistance 49His Honour dealt with this aspect of the claim as follows: "As to other domestic assistance, the plaintiff in the past has been able to rely on the assistance of friends and family. She has never sought to employ carers in and around the home, and I think it is unlikely that she will do so unless there are some circumstances that her friends or daughter are unable to provide assistance. I think the plaintiff is stoic. I think she is a person who would do her best to survive, no matter surgery or the sequelae of it, with the assistance of her daughter and friends. This then means taking into account the recent Court of Appeal decision in Hill v Forester, the plaintiff having established the first entitlement of six months gratuitous care is entitled to care for six hours per week. It is impossible to predict, although in my view it will occur, because of the worsening condition with her arm, and she will on many occasions require the provision of six hours per week domestic care. It is impossible to quantify this sum, however, I am of the view that a proper figure to allow for it as to the future would be in the sum of $10,000 which may lack generosity to the plaintiff, but in doing the best I can between the parties." (RAB 55Q-56F) 50The appellant submitted that his Honour's assessment did not have due regard to the evidence of Ms Zieba that as of the date of trial, she was still providing four hours per week of assistance in performing housework. The appellant submitted that his Honour's assessment ignored the evidence of the appellant that if money were available, she would pay for assistance in performing her housework, rather than have a friend or her daughter do it (Black 37P). At trial the appellant claimed $200 per week, being 5 hours at $40 per hour of paid assistance for 27 years. Before this Court the appellant's claim was 4 hours per week at $40 per hour for 10 years on the basis that a proper allowance had to be made for the appellant's other disabilities. 51In the alternative, the appellant submitted that his Honour's assessment of her need for domestic assistance was based on her current condition. It did not make proper allowance for the effects of the operation which the doctors agreed would occur within the next 5 to 10 years and which would further reduce her capacity to perform housework in that her left wrist would be fused. The appellant submitted that his Honour's assessment also failed to have adequate regard to the likely worsening of the arthritis in the wrist and the length of time over which the assistance would be required, i.e. 27 years. 52The evidence of Ms Zieba as to still providing some domestic assistance for the appellant cannot be reconciled with the appellant's own evidence. The appellant's evidence was that she received assistance from Ms Zieba and her daughter for about 6 months following the injury, but thereafter she did her own housework (Black 38J). That evidence is consistent with what is recorded by Dr Deveridge in January 2009: "She has recovered to the extent that she can do her own housework although she does not have a great deal and it is spread out over the week." (Blue 134G) 53The appellant is in the best position to know what her needs are. It was open to his Honour to conclude that the appellant was able to perform her normal household tasks without assistance, albeit more slowly than before. 54His Honour was entitled to reject the evidence as to paid assistance for the reasons which he set out. Other than lawn mowing, the appellant had never sought to employ anyone in the past. His conclusion as to her stoicism was a demeanour based finding which ought not be interfered with. His Honour had the opportunity of observing the appellant give evidence over two days. His conclusion as to her stoicism is also consistent with her evidence that she did the housework herself and what she told Dr Deveridge in January 2009. Accordingly, his Honour was entitled to reject the submission that allowance should be made for paid housework assistance in the future. 55The alternative submission made by the appellant has more force. Twenty seven years is a long time. It seems clear that the appellant will come to an operation within 5 to 10 years and that the fusion of her left wrist will render her more disabled than she is at the present time. Even allowing for the effect of her other unrelated health issues and her present ability to perform housework, $10,000 is insufficient to meet her likely future needs flowing from this fall. Over the next 27 years there is a real chance that her friend and her daughter will be unable to assist her so that paid assistance will be necessary. In my opinion, an appropriate allowance for future domestic assistance is $25,000. Future out-of-pocket expenses 56The appellant submitted that his Honour appeared to have forgotten to make any allowance for the cost of an operation which all the doctors opined that she would need. The respondents accepted that this was so. They submitted that the operation should be deferred for 5 years in accordance with Dr Deveridge's estimate and that allowance also had to be made for the 2 years which had elapsed between the date of Dr Deveridge's report and the date of judgment. This would produce an allowance for the operation of $12,527. The approach by the respondents was not challenged by the appellant and I accept it as reasonable. 57The appellant also referred to the evidence of Dr Deveridge as to other future treatment expenses: "Future treatment is likely to involve intermittent analgesic and/or anti-inflammatory medication indefinitely. She will need to see her general practitioner every month or two for repeat prescriptions. She could reasonably attend sporadic sessions of physiotherapy ($65 per session) at times of future relapse. She is going to develop slowly advancing secondary osteoarthritis in the left wrist joint in future years." (Blue 135K) 58The appellant submitted that some allowance should be made for this likely future expenditure. 59This is a very difficult claim to quantify. The taking of analgesia and anti-inflammatory medication is only going to occur on an "intermittent" basis. The need to attend her general practitioner on a regular basis would also be caused by her other disabilities, which were unrelated to this fall. There is no evidence of her having undergone any physiotherapy in the past. Nevertheless, difficulties of calculation should not prevent the Court making an award of damages if the appellant is otherwise entitled to them. The need for such future treatment is consistent with the opinions of the other doctors. I propose to allow a figure of $5,000 which is the equivalent of $6 per week over the next 27 years. Conclusion 60It follows from the above analysis that I would allow the appellant's appeal and would award damages in favour of the appellant as follows: Non-economic loss 26 percent $ 40,000.00 Past out-of-pocket expenses $ 17,832.00 Past economic loss $ 52,508.72 Superannuation on past economic loss $ 5,776.00 Future economic loss $ 40,000.00 Superannuation on future economic loss $ 4,400.00 Past domestic assistance $ 13,455.00 Past lawn mowing $ 2,500.00 Future domestic assistance (lawn mowing) $ 10,000.00 General future domestic assistance $ 25,000.00 Future out-of-pocket expenses $ 17,527.00 Total $ 228,998.72