1. The plaintiff makes a claim in respect of a loss of capacity to earn, which incapacity commenced from effectively since shortly after the accident. It is said that the incapacity will continue to be productive of loss until his retirement age of 67. I am satisfied that working to that age was the plaintiff's intention. As to past loss, I was given calculations that show what the plaintiff would have earned if he had worked throughout the period as a conveyancing clerk, and what he in fact earned between the accident and his redundancy. Because of the "light duties" he was doing, his rate of pay stayed the same throughout the relevant period, while that of the other conveyancing clerks increased.[5] Adjusted to allow for the time since trial, the net loss is about $383,000. The most up-to-date net weekly wage for a conveyancing clerk is $995.27. That weekly sum, to the age of 67, discounted at 5% in accordance with s 28A of the Civil Liability Act, gives an amount of about $645,000. (The multiplier is 648.14 in accordance with the agreed actuarial tables.)
2. As a matter of principle, the valuation of of a loss of capacity to earn does not depend on calculating income from the particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. The inquiry is an imprecise and indeterminate one to be carried out within very broad parameters: State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 per Heydon JA at 553 [71]-[72]. I accept that the plaintiff's capacity to earn by way of physical labour is very limited. Although the plaintiff has some other skills, the focus in this case is on his capacity to earn in a clerical or administrative role, and the valuation exercise is best based accordingly.
3. The defendant argues that the plaintiff's loss reduced from September 2008, and says "it is reasonable to find that had he accepted his doctors' recommendations he would have been back working full-time by say mid-2009". As to the future aspect, the defendant says that the plaintiff might have a flare-up of back pain and need some time off, but the evidence does not show that this would exceed sick leave entitlements.
4. Of course, before being made redundant, the plaintiff was working for four hours on three days a week, and according to his evidence, Dr Sutherland continues to "certify" him as fit for no more than that. The evidence shows that in October to November 2008 both Drs Paton and Thompson were of the view that the plaintiff's working hours could then be extended from 12 hours; that is, from four hours for three days each. Dr Paton did not specify a number of hours, but Dr Thompson specifically mentioned to Dr Sutherland four hours for four days. The plaintiff's evidence was that up until he was retrenched in September 2011, he was struggling physically and mentally. There were quite a few weeks when he thought he did not complete the 12 hours because of back pain. He said he did not feel he had the capacity to increase his hours because he did not think he was physically or mentally able to. Working for four hours made him "exhausted". The only reference I am able to find of the plaintiff's work situation with a doctor is in a report of Dr Thompson dated 16 March 2013. Dr Thompson told the plaintiff's solicitors that on review in November 2008, the plaintiff was working four hours for three days a week but found that at the end of his hours, "he was uncomfortable". I note that in that report of March 2013, Dr Thompson suggested that a return to work was possible, initially on a part-time basis, and then dependent upon the outcome, a possible increase of hours.
5. Mr Shelley, of Page Seager, did not mention in his evidence any apparent difficulties suffered by the plaintiff in performing the tasks which were allocated to him in substitution for his role as a conveyancing clerk. He said that when the plaintiff returned to work, it was on a program arranged by the MAIB, and he was doing light duties for the 12 hours. He said they were trying to find things to keep the plaintiff occupied to bring him back into the workplace. The plaintiff was asked to maintain the business name and company register for a time, and was then engaged in the process of transferring the entire wills register to an electronic database. When asked about the plaintiff's modified role in the firm, he said:

"... it wasn't seen as an ongoing role, we were trying to find small projects to bring Craig back on a return to work program and keep him involved and active at work. There wasn't an endless supply of these projects so we were continuing to look for these small jobs to do and ultimately we ran out of those small jobs, which unfortunately led to the redundancy in 2011."[6]

1. The plaintiff said in evidence that he would "love to" get back into the workforce but said he thought it would be difficult. It will be recalled that Mr Fourez mentioned in his evidence a comment made by the plaintiff that he would not look for work until his claim was settled. When the plaintiff was asked about this, he said that he had been looking for work for quite some time. The cross-examiner did not pursue it. The matter was not the subject of any questions in evidence-in-chief or re-examination. The extent and timing of these efforts, and what types of position they relate to, remain unexplained.
2. I think the starting point has to be the physical limitations as described by Drs Thompson and Sutherland. The plaintiff has an injured back. That interacts with his anxious and vulnerable personality. I am satisfied that the injury has created limitations on what the plaintiff can do in terms of lifting and bending, and on sedentary work. Any sedentary occupation cannot be purely static, and needs to enable regular movement and change of posture. I take into account his age and educational background. He is at a disadvantage in the labour market were all else to be equal. I find that he has suffered a loss of capacity to earn. That loss was productive of financial loss in the past, and will be in the future. In assessing the value of the loss, and when looking at his capacity to do clerical or similar work, I take into account those things that the plaintiff says he is able to do. For instance, he has taught himself TIG welding, something which undoubtedly requires close concentration as he in fact admitted. He is able to "tinker" on a car for two to three days a week, although spread over a full week. I take the view that he tended to downplay the nature and extent of this activity. I am not satisfied that he does as little as he makes out.
3. The claimed net loss on an annual basis from the accident to date is as follows:

1. The last financial year in which the plaintiff earned any income was the year ended 2012. He earned nothing after 9 September 2012 when he was retrenched. The claim so framed is a simple arithmetic one and assumes a total incapacity to work after that date. It also assumes that his earning capacity was limited to 12 hours per week for the whole of the period from when he returned to work on 24 August 2007 until 9 September 2012. I am not satisfied that this assumption has been established as a fact. As a fundamental 'bottom line', there is no justification in any of the medical evidence to make a finding other than that the plaintiff had, and has, the capacity to work for four hours on three days a week. On the whole of the evidence, I find that at all times since his return to work, the plaintiff was at least capable of remunerative work for 12 hours a week.
2. Further, I find that the plaintiff's capacity to work and to earn increased in the period from August 2007 to September 2011 when he was retrenched, and has increased since. It is not possible to be precise about particular points along the upward curve of improvement. That makes it more convenient to approach the matter in terms of blocks of time using a broad approach, bearing in mind that some divisions of time may operate in the plaintiff's favour and some in the defendant's favour. I am satisfied that allowance should be made for the plaintiff's personality and that the improvement curve should be viewed as a gradual one. In my view, the plaintiff's capacity to earn in the period to date increased from that represented by the 12 hour week in 2007, to a capacity to work remuneratively for a little in excess of 20 hours per week. Taking all matters into account, I find that by June 2014, the plaintiff had a retained earning capacity in the order of 60 per cent.
3. As to quantification, it is probably more convenient to approach this in terms of hours which the plaintiff was capable of working in the time he was employed, and of a percentage of retained earning capacity after 2011 when he was not. First, I think it is fair to allow the total of the amounts claimed to the financial year ended 2009; a total of $88,437.98. I note that it was not until the end of 2008 that Drs Thompson and Paton recommended an increase in working hours. Next, doing the best I can, I think it fair to assess the claim on the capacity to work 16 hours per week in the financial year ended 2010, and 18.75 hours (or one-half of the working week) for the next year to the financial year ended 2011. In the next three years that should be increased to 20 hours (five four hour days or 53.33 per cent of the working week), and, as I have said, my view is that by the commencement of the 2014/2015 financial year, the unexercised capacity to earn had increased to 60 per cent.
4. The table set out above is reproduced below, but with the second column being the adjusted figure representing what the plaintiff earned or was capable of earning as I have detailed. The third column is the adjusted difference representing the actual net loss. At the risk of overly complicating things, during the time of employment I have taken the actual earnings, divided them by by 52 (weeks) and then divided the result by 12 (hours) to arrive at a net hourly rate. I have then multiplied that figure by the number of hours capable of being worked, and then annualised that figure. That assumes, in the plaintiff's favour, that the 'light duties' rate at which he was actually being paid would have applied. In the years of unemployment starting with the 2012/2013 financial year, I have just taken the percentage of the total net annual salary claimed.

Projected Earnings Actual/Notional Earnings Difference

FYE 2012 $47,573.50 $26, 208.19[7] $21,365.31

FYE 2016 (to date) $38,815.53 $23,289.18 $15,526.35

1. I have adopted an arithmetical approach, but with a broad assessment as to the timing of improvement. I need to be satisfied that the end result is a fair value of the loss of capacity to earn to date. There is sufficient justification for moderating the final figure in the table. There is the issue, although not significant, of the possible disparity between the plaintiff's pre-accident pay rate and that of fellow clerks used as a comparison, as discussed in the footnote to par [107]. There is also the assumption about the plaintiff's continuing pay rate referred to in the last paragraph. It may have been that with an increase in hours, the nature of his work changed, and his rate increased. I would allow $235,000. I do not consider it appropriate to discount this figure for past loss for contingencies, notwithstanding the period of time between the accident and trial. There is nothing to suggest that the employment might not have been available during the period. There might be some justification for a discount on the basis that the plaintiff's degenerative back condition (which was undisputed), and his vulnerable personality might have seen him out of work for a period beyond his sick pay or other entitlements. However, any such risk would be offset by the period of time for which the plaintiff is out of his money, and "in practice justice is usually done if the plaintiff is awarded the aggregate of the actual money amounts that would have been earned, ignoring the counterbalancing factors of adverse contingencies and the diminished value of money": H Luntz, Assessment of Damages for Personal Injury and Death, 4th ed, (2002) at 319 [5.2.8] and the cases cited at footnote 101.

1. This is to be assessed on the basis of a loss of the capacity to the extent of 40 per cent. I think it reasonable to assess this on the basis of potential earnings as a conveyancing clerk. Forty per cent of $995.20 is $398.11 which, multiplied by 648.14, gives a figure of $258,031.01. There was no evidence or discussion in this case about the appropriate figure by which the claim for future loss should be discounted to allow for the "usual" adverse contingencies such as mortality, sickness, accident, underemployment and unemployment. The figure conventionally adopted in this State is 15 per cent. However, as demonstrated by Evans J in McLennan v Luttrell [2006] TASSC 44 at [36]- [43], the discount for major contingencies other than unemployment is minimal. At 386-387 [6.4.14], Professor Luntz concludes that 5.5 per cent is a reasonable allowance in the average case of a person in regular employment.
2. In Partridge v Hobart City Council (2012) 22 Tas R 29, the Full Court (Crawford CJ, Blow J (as he then was) and Wood J) said at 58 [182] that it may be that the customary discount of 15 per cent is too high. Beyond that observation nothing was said. These are all general statements, and the particular circumstances of each case need to be looked at. In the present case, the plaintiff's work was not demanding but there is the undisputed degenerative state of his spine. This relates to the level affected in the accident, but in 2009 a small central disc bulge was detected three levels above. The plaintiff is a chronic smoker. The evidence was of a significant reduction in life expectancy, but at the least there is a chance of serious illness within his projected working life. His anxious and vulnerable personality would exacerbate any future physical or emotional difficulties. Because of those things, a discount figure of 15 per cent is appropriate. That gives a figure of $219,326 to the nearest dollar, and I award that amount.

1. Section 25 of the Civil Liability Act provides that the maximum amount of damages that may be awarded for economic loss due to the loss of employer superannuation contributions is the relevant percentage of damages payable for the deprivation or impairment of the earning capacity on which the entitlement to those contributions is based. The relevant percentage is the percentage of earnings that is the minimum percentage required by law to be paid as employer superannuation contributions. The parties are agreed that the correct approach is that taken by the New South Wales Court of Appeal in Najdovski v Crnoljlovic [2008] NSWCA 175 (per Allsop P and Basten JA, Windeyer JA dissenting). The relevant percentage is 9 per cent of gross ordinary time earnings, but because damages are assessed by reference net of tax, the calculation is done on the basis of 11 per cent of net earnings. Accordingly, the allowance I make is $49,975.86.

1. There are four components of this head of damage. In the order in which they are set out in the particulars of claim, there are claims for future expenses for medication, surgery, rehabilitation, psychological treatment and general practitioner visits. There is an issue about the plaintiff's entitlement to claim for some of the items referred to in the plaintiff's closing submissions, and which were not particularised in the most recent particulars of claim dated 14 July 2015. The claims are for episodic hydrotherapy, anaesthetic (facet block) injections, and reviews by Dr Thompson.
2. The defendant submitted in closing that the claims should not be entertained because they were not set out in the particulars, and so she was not facing them. No basis for the submission was outlined, nor any authority cited. The plaintiff did not seek to respond to the point. I later sought written submissions. The defendant points out that, due to the state of the pleadings on liability, she went into evidence first. The submission is that in that case, it was essential that the defendant knew the full extent of the damages claimed, and no amendment to the particulars should be allowed, as she was prejudiced. It is said that in any event, the evidence in support of the claims is so vague that it militates against amendment. The plaintiff says that each of the three matters was alluded to in proofs of expert evidence delivered before trial. Episodic hydrotherapy was mentioned in Dr Thompson's evidence without objection. The other two matters were not mentioned. In any case, The plaintiff now seeks leave to amend the particulars. Although the claims are not very large, even taken at their highest, I am unfortunately required to decide this issue.
3. The starting point is the issue of what it is that needs to be pleaded or particularised, and the characterisation of claims for future medical and treatment expenses. Subject to any rules of court, the law, as I see it, is that a plaintiff need only plead or specify 'special damage' as distinct from general damage. Generally, as to pleadings in respect of general and special damage see Luntz (above) at 68-70 [1.6.1]-[1.6.10], and McGregor on Damages, 19th ed, Street and Maxwell, 2014 at 1935-1946, [49-007] to [49-023]. In the pleading context, general damage is the loss which the law presumes to be the nature or probable consequence of the wrong. All damage which up to the time of the hearing is not yet crystallised in actual disbursement is still prospective in general damages: Shearman v Folland [1950] 2 KB 43 at 51[8]. 'Special damage' means not only expenses actually incurred but extends to things which are unusual or peculiar to a particular plaintiff and which may not be the natural and probable consequence of the wrong. On that basis notice is required.
4. This category came to be extended to any out of pocket expenses or loss of earnings incurred before trial, and which were capable of substantially exact calculation. They were said to be special in the sense that fairness required them to be pleaded: Perestrello e Companhia Limitada v United Paint Co Limited [1969] 1 WLR 570 at 579; Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161, per Stephen J at 179. The absence of a strict requirement to plead matters of general damage is not to say that it is not highly desirable, for a number of reasons, for a plaintiff to identify heads of general damage, and to provide particulars of the bases of calculation. More recently, considerations of fairness and the facilitation of settlement have led to rules of practice in various jurisdictions which deal with the provision of particulars in personal injury cases.
5. In this State, r 253A of the Supreme Court Rules 2000 is the only rule which specifically deals with personal injuries claims. It provides that, within 50 days after the close of pleadings or within such other times the parties may agree or the Court orders, the plaintiff is to advise the defendant in writing of a number of things. They are:
   • the nature of the plaintiff's injuries and of any secondary illnesses suffered;
   • the name of each hospital attended and the name and address of each medical practitioner who has treated the plaintiff for the injuries, other than as part of hospital treatment;
   • any expenses incurred as a result of the injuries;
   • the nature of employment or self-employment that the plaintiff claims he or she would have been likely to engage in had it not been for the injuries, the estimated gross annual income for each such category of employment and whether the claim is that the injuries impact totally or partially on that capacity.
6. The rule does not require particularisation of all general damage reasonably capable of quantification or estimation; it merely extends the ambit of particulars that a plaintiff is required to furnish: Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 665. Of course, a judge may order such particulars within the case management regime, but that was not done in this case. It follows that the mere failure to particularise these claims does not of necessity mean they are excluded from consideration. It follows that there is no need to amend the particulars. It leads, though, to the question of whether procedural fairness compels me to ignore these claims. In this case, I do not think it does. It is correct that the future needs for the relevant services was alluded to in 'proofs of evidence' which were in fact reports of various doctors, and which were tendered without objection to the relevant part. The cost of hydrotherapy is contained in an exhibit tendered by consent and which formed part of a two volume exhibit book, from which I infer the defendant was aware of it before trial. The cost of facet block injections is derived from the actual costs paid by the MAIB as evidenced by a list of payments by way of scheduled benefits. Next, the defendant acknowledged in closing submissions that the cost of a review by Dr Thompson had been agreed between the parties. Overall, I am not persuaded that in the circumstances the plaintiff's (unexplained) failure to formally particularise these claims means that they should be ignored.

1. The claims are for the cost of the continuing use of Panadeine Forte, Endone and Lexapro. Respectively, the agreed costs of these medications are $20.50 for 120, $7.39 for 20, and $14.50 for 28. The plaintiff said that he takes between 1 and 8 Panadeine Forte a day, or 4 on average, at least 1 Endone a week depending on the symptoms, and 1 Lexapro tablet a day.
2. As to the Panadeine Forte, Dr Sutherland's prescriptions cite 1 to 2 tablets 4 times a day when necessary for severe pain. The plaintiff did not claim to be in severe pain for a fair part of every day. On the whole of the evidence, I fail to see the need for the use of this medication at the plaintiff's stated level. Doing the best I can, I think it reasonable to allow the cost of an average consumption of 8 per week over the balance of the plaintiff's life. As the plaintiff is very close to 48, the multiplier is 893.6, and the resultant figure is $1,272.49.
3. As to the Endone, Dr Sutherland refers to the occasional need for this medication. On 10 April 2015 he noted that the plaintiff had needed Endone "on a few occasions" since the last visit about a month before. Given its nature, the need for the use of this drug would only arise when the pain level escalated above severe. I have already mentioned the plaintiff's evidence as to the level of pain he experiences that gives rise to the use of the medication. Common sense suggests a guarded approach to the use of narcotics, although I do not suggest that one a week is excessive. On the whole of the evidence and attempting to average the consumption, I think it fair to allow the cost of one tablet a fortnight for the remainder of the plaintiff's life. That comes to $164.87.
4. As to the Lexapro, Dr Sutherland referred to its continuing beneficial effect. Dr Thompson agreed with the present need for this medication. Dr Sale agreed that its use is reasonable and is likely to be needed for the next five years. He said that any prediction beyond five years is widely speculative in psychiatry, although agreed that it would possibly be needed for life. I am barely persuaded that the use of this medication has been necessitated by the 2006 accident and its consequences. I have regard to Dr Sale's evidence in this respect. I think it fair to allow the full cost of the medication for five years, and then to allow for a 10 per cent possibility that the plaintiff will require the medication from age 53 for the balance of his life. The five year figure is $837.80 to which should be added $250, being approximately 10 per cent of the deferred future cost of the medication; that is, the total cost from the age of 53.
5. The total in respect of all medication is therefore $2,525.16. The defendant argues that any calculations based on the life expectancy tables should be discounted to take into account the fact that the plaintiff is a chronic smoker. Dr Sutherland agreed that for a smoker of the plaintiff's appetite, there would be a significant reduction in life expectancy, but as to exactly how much he could not comment. I think that balanced against this possibility is a degree of possibility of an increased need for medication at some point in the future. I will discount the total by 10 per cent and allow the sum of $2,272.64.

1. The present cost of radiological investigations and a discogram associated with an anterior fusion at the L5/S1 level, and the cost of that surgery itself, amount to $25,000. The claim is put on the basis that the plaintiff may require surgery. Dr Thompson's evidence is that as natural degenerative processes occur, he would expect some worsening of pain levels. If this were the case, the plaintiff "may need to consider his surgical options and ... the most likely procedure necessary would be anterior fusion at the L5/S1 level". The defendant says there is no chance that the plaintiff will have surgery. He has not undergone the denervation suggested by Dr Paton and agreed to by Dr Thompson. According to Dr Thompson, he has "consistently" refused to entertain a fusion. As alluded to earlier, in evidence the plaintiff said:

"... the outcome is fifty/fifty as to whether it'd reduce my pain or not and in fact I could actually end up worse and I'm not prepared to lose what quality of life I have at present."

1. On all of the evidence, I am not persuaded that the possibility of surgery can properly be regarded as anything other than speculative, and no value should be ascribed to it. The next claim is for further facet block injections "if required". In October 2008, Dr Paton said that he hoped and expected the plaintiff should be able to return to work in a full-time capacity if certain things were put in place. It was in that context, that he said if there was an increase in levels of low back pain discomfort with an escalation in work hours, then further intervention of a non-surgical nature should be looked at. For the cost of the procedure, the plaintiff refers to the list of scheduled benefits, and asserts that the last procedure performed by Dr Paton was on 11 March 2008 at a cost of about $1,600. I am prepared to make an allowance for the possibility of a procedure in the future, and would allow $400.

1. The components of "rehabilitation" are physiotherapy, a gymnasium program, remedial massage and hydrotherapy. As to physiotherapy and a gym program, Dr Sutherland said in July 2015 that these would help to maintain core muscle strength, and he would consider recommencing these treatments if funding became available. Dr Paton recommended a low impact exercise program supplemented with a gym program not under instruction, although he said that in October 2008. He said nothing in his evidence about future rehabilitation measures. In March 2013, Dr Thompson said he had recommended continuation with core muscle stabilisation and strengthening under the guidance of a physiotherapist. I think it is reasonable to make some allowance for physiotherapy so that the plaintiff can restart his back maintenance. I will allow an initial consultation and five subsequent visits, a sum of $482. For the same reason I think it is reasonable to allow 12 months' gym membership. Beyond that, I am not persuaded that gym membership is a reasonable requirement, as distinct from what is desirable or ideal. I allow $1,665.60, making a total for these items of $2,147.60
2. Dr Sutherland says massage has been beneficial in the past, and would consider recommencing the treatment if it were funded. In March 2013 Dr Thompson said that symptomatic control had necessitated episodic hydrotherapy and remedial massage as required, although he would agree that they were not curative. However, he felt they were an important part of the overall treatment in the reduction of symptoms. A claim is made for a monthly massage for the balance of the plaintiff's life, at $80 a time. The claims for massage and hydrotherapy have to be looked at together. Precisely what is involved in hydrotherapy is unexplained, but the cost of a group session is $42, while an individual session is $79. There is no evidence to support individualised treatment. All in all, I think it fair to make allowance for a massage every two months, and a group hydrotherapy session every three months. Using the life expectancy multiplier, that gives figures of $8,248.62 and $2,165.26 respectively. Those figures have to be discounted for the possibility of earlier death because of smoking. Doing the best I can, five per cent is a fair figure. I also think they should be discounted because of the real chance that towards the end of his life the plaintiff will not use these services or will have them otherwise provided. I think a combined 20 per cent discount is appropriate. That gives a total of about $8,331, and I will allow that amount.

1. One session of psychological counselling is $261.90. The plaintiff claims $3,200 "on a 'broad brush' basis for future psychological treatment". In May 2014 Dr Sutherland said that the plaintiff "at times might benefit from brief interventions by a psychologist". In July 2015 he said that the plaintiff would benefit from occasional psychological counselling. In his September 2013 report, Dr Sale responded to a question as to what further treatment would he recommend from a psychological point of view. He responded by saying that the antidepressant can be useful treatment in ameliorating the effect of a chronic anxiety disorder, and that it would be reasonable for the plaintiff to remain under Dr Sutherland's care. He added that at times, there may also be a need for psychological counselling, that there should be a brief intervention around 6 to 8 sessions. In evidence he said that he could not rule out the need for psychological intervention so there should be a contingency in respect of which he suggested 6 to 8 sessions.
2. On balance, on the basis of Dr Sale's evidence, the accident and its consequences have caused a greater level of anxiety in the past than the plaintiff might otherwise have experienced, and rendered him more vulnerable. That vulnerability has to be viewed in light of his obsessive and hyper-vigilant nature. I am satisfied that psychological counselling may be required n the future. There can be no certainty that the need will arise or if it does, as to the timing of it and the extent of any treatment required. Using Dr Sale's estimate of the number of sessions possibly required, and taking a necessarily broad approach, I would allow $500.

1. The defendant does not quarrel with the proposition that there should be an allowance for four visits a year to Dr Sutherland. The cost of a visit is $75. Using the life expectancy multiplier of 893.6 and discounting by 5 per cent to allow for possible earlier death due to heavy smoking, gives a figure of approximately $4,898 and I would allow that amount. The plaintiff also claims four reviews by Dr Thompson on a 6 to 12 monthly basis. The agreed rate for a review is $134. I think it is reasonable to allow an annual review. That figure, using the multiplier of 893.6 and discounted by 5 per cent gives $2,187.60 which I allow.

1. The plaintiff claims two hours a week at $30 per hour. In evidence, he said that if his son was not able to help him around the house, he would need "probably two or three hours a week". None of the doctors called by the plaintiff addressed this issue. Dr Sutherland's continuing certificates that he provides to the MAIB have provision for certification that the person is wholly disabled from carrying out their normal household duties, and a recommendation the patient receive assistance with particular duties. At least in those dated 15 May 2015 and 18 June 2015, Dr Sutherland has left the section blank. In cross-examination, Dr Gorman agreed that the plaintiff may need some assistance with the more vigorous activities at home, as well as the shopping. That is the medical evidence at its highest. I am not persuaded that it is appropriate to make any allowance under this head. First, apart from the lack of evidence of need from the plaintiff's doctors, this follows on from my views about the plaintiff's level of disability. I also take into account the extent of his other activities; in particular, his work on the cars and his TIG welding. I take into account the adaptations he has made, the ability to further adapt, and the gratuitous assistance he receives and is likely to receive.

1. First, I should record here that the plaintiff abandoned his claims for past travelling and parking expenses. As to future travelling, it is 33 kilometres from the plaintiff's home to the city and return. The established cost of car travel is about 70 cents per kilometre. I have regard to what I have said about general practitioner visits, specialist reviews, physiotherapy and gymnasium exercise. Generally, I think there will be more travelling in the next, say, 10 years, than thereafter. On a very broad estimate based on four trips a year over the plaintiff's life and discounted by a factor of five per cent for early death, a fair allowance is $1,500.

1. There is a claim for the cost of a recliner armchair in the sum of $1,095. That was purchased in June 2008. There is also a claim, (although not referred to in the written closing submissions), for $849.50 being one-half the cost of purchasing a new bed in January 2008. The other half of the cost was contributed by the MAIB. The bed was purchased in consultation with a rehabilitation provider. The plaintiff's old bed was very old, uncomfortable and did not appear to be supporting his back correctly. The chair was bought because his normal lounge suite caused too much pain when he was sitting. Given the period in which these items were purchased, I think it fair to allow the claims in full. Lastly, there is a claim for $338.40 for back and shoulder imaging in January 2008 and January 2014, about which there does not seem to be an issue. The total allowed is therefore $2,282.90.

1. I refer to the things I said in relation to the plaintiff's credibility and the findings I made in that section. I also refer to my comments in relation to loss of earning capacity. I accept that the plaintiff has a back injury of some severity, and that he suffers fluctuating pain and discomfort. On occasions it can be severe. He underwent extensive treatment. I accept that the plaintiff went through a difficult period physically and emotionally, the features of which are attributable to the accident, given the background of his vulnerable personality. There is a need for ongoing analgesic use, a more immediate need for some rehabilitation, and an ongoing need for medical supervision and assistance. As I have stated, he also sustained minor injuries to his neck, left shoulder and wrist which caused pain and discomfort for a time, but the symptoms are now of nuisance value only.
2. There was no debate about whether, as a matter of principle, the fact of a marriage break-up can be taken into account as not too remote a consequence, assuming that I find to be due to the injuries and their consequences on the plaintiff's mood. There seem to be cases decided each way: Luntz at 206 [2.7.6]. The plaintiff and his wife did not engage in any sexual activities for about 18 months to 2 years before separation. I accept his evidence as to his irritable mood. I accept that the break-up was attributable to the injuries and their consequences, but in any event, as the plaintiff accepts, he had recovered from this significant set back by the end of 2008 after psychiatric treatment. I allow $60,000 under this head.

1. There will be judgment for the plaintiff against the defendant for $583,923.60

[1] There was no evidence about the distance from Page Seager to the car park. As a matter of local common knowledge, and without meaning to be definitive, I would say the distance is roughly about one quarter of that from Page Seager to the surgery, making a saving of half the distance by driving.

[2] Dr Gorman was reluctant to concede that the injury sustained in the 2006 accident was a prelude to, or provided the setting for, the August 2006 aggravation. The evidence of Drs Thompson and Paton was that it did. Their evidence seemed more compelling to me, but in any event the issue does not seem to have any real significance. On the plaintiff's own evidence, the additional symptoms caused by this incident settled after about two weeks, although generally, I think it can be said that the state of the disc was a little worse after this incident.

[3] Dr Sale also relied on the fact that the plaintiff helped assemble an extensive model railway network for his father. With some personal knowledge of the subject, Dr Sale explained that this required quite a deal of cognitive skill to put together. Although Dr Sale's report says the plaintiff had helped his father, in evidence he said his impression was that it was the father who had helped the plaintiff. The plaintiff said in evidence that it was his father's project, that his father gave him "menial stuff to do", and he "just sort of moved things around ... more hanging around than building it".

[4] One instance of the plaintiff expressing difficulty in following might arouse some suspicion, given its context and timing. Having described how he had become irritable after the accident, he was asked whether he had noticed any other psychological consequences. He said he has a lot of problems with his memory and went on to illustrate. The questioning then went as follows: "Anything else other than concentration?......Sorry, I've lost my train of thought of the question. How's your memory?......Obviously not very good."

[5] According to Mr Shelley, there were three conveyancing clerks employed at the time, each working for a different commercial partner. Each was paid at a slightly different rate which depended on the view of the particular partner. At the time of the accident, the plaintiff was the lowest paid. However, the very limited documentation which relates to the period casts some doubt on that suggestion. The plaintiff's PAYG summary for FYE 2006 shows the same gross amount as the annualised amount evident from the pay slip of an unidentified clerk for the last fortnight in that financial year. On the basis of Mr Shelley's evidence, the amount which it is said the plaintiff would have earned is an over-estimation, although by an unquantifiable but apparently modest amount. I bear that in mind, but it should also be borne in mind that the compensation is for the loss of capacity to earn, and there is nothing to suggest his capacity was less than the other clerks. The plaintiff's pay could have changed at some time with a change of supervising partner, or of firm policy.

[6] I note, however, that by letter of 7 September 2011, Page Seager's manager wrote to the plaintiff telling him that things had reached a point where the available work was limited to one-off projects only, and that this had come about by the fact of his ongoing health issue limiting his "capabilities and reliability".

[7] I have used a combined approach to this year. The plaintiff earned $3,429 net in the 10 weeks before he was retrenched. Assuming a 20 hour week he would have earned $5,715. Taking a figure representing 42 weeks of the claimed projected earnings, and applying the reduction of 53.33 per cent gives $20,493.19; a total of $26,208.19.

[8] Future attendant care expenses were said to be general damage.