New South Wales Supreme Court CITATION : Garstang v Cedenco [2002] NSWSC 144 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20581/2000 HEARING DATE(S) : 13 and 14 February 2002 JUDGMENT DATE : 12 March 2002 Sean William Garstang (Plaintiff) PARTIES : Cedenco JV Australia Limited t/as Cedenco Australia (Defendant) JUDGMENT OF : Master Harrison Mr Cranitch SC with Mr I Roberts COUNSEL : (Plaintiff) Mr D G T Nock SC (Defendant) Commins Hendriks Wagga Wagga (Plaintiff) SOLICITORS : Hunt & Hunt (Defendant) CATCHWORDS : Personal injury - breach of contract - damages LEGISLATION CITED : Workers' Compensation Act 1987 - s 151E(3) John Pfeiffer Pty Ltd v Rogerson (2000) 172 ALR 625; (2000) 74 ALJR 1109; 203 CLR 503 Bonython v The Commonwealth [1950] 81 CLR 486 CASES CITED : Re United Railways of Havana and Regala Warehouses Limited (1960) 1 Ch 52 Mendelson-Zeller Co Inc v T & C Providores Pty Limited (1981) 1 NSWLR 366 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 DECISION : (1) The defendant is to pay to the plaintiff the sum of $301,279.00; (2) The defendant is to pay the plaintiff's costs as assessed or agreed. - 17 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON TUESDAY, 12 MARCH 2002 20581/2000 - SEAN WILLIAM GARSTANG v CEDENCO JV AUSTRALIA LIMITED t/as CEDENCO AUSTRALIA JUDGMENT (Personal injury; breach of contract - damages) 1 MASTER: The plaintiff seeks damages for a personal injury sustained in an accident that occurred during the course of his employment with the defendant. The accident occurred on 16 February 1998 at a tomato processing plant in Echuca, Victoria. There is no claim in tort. The claim is for breach of contract. Later, during the hearing the defendant admitted that it breached the terms of the contract. Plaintiff's background 2 The plaintiff was born on 3 February 1971. He is now a relatively young man of 31 years of age. The accident occurred when the plaintiff was 28 years of age. From 1976 until 1979 he attended Wideview public school, Berowra Heights. In 1979 the plaintiff moved to Wagga Wagga with his family and he attended Lake Albert public school until 1983. In 1984 the plaintiff commenced high school at Korringal high school. In 1985 the plaintiff fractured the third metacarpal of his right hand in a fight with some "mates". He left school in early 1988 while in Year 11 to commence employment. While in high school the plaintiff commenced using marijuana and has apparently used it on a regular basis in recent times. 4 In 1994 the plaintiff met Tammy and commenced living with her. She had an older child. On 17 September 1994 their son Jake was born. On 18 May 1997 the plaintiff's daughter Tahlia was born. In mid 1998, after his wife left with their children, the plaintiff commenced using heroin. After about a year, the plaintiff saw his local general practitioner and underwent the methadone programme. After 16 months (about March 2001) of reducing the methadone dose, the plaintiff stopped the program. He says that he is no longer using heroin. From 1998 until 2001 the plaintiff's relationship with his partner fell apart with mutual animosity. The plaintiff is currently estranged from his children and does not know of their whereabouts. 5 I observed the plaintiff very carefully while he was being examined and cross examined. I formed the view that he did not exaggerate the extent of his injuries and abilities. Prior accidents and injuries 6 The plaintiff has suffered from migraines since childhood, and from neck and back pain since his teens. In February/March 1988 the plaintiff was involved in a car accident and was admitted to Wagga Wagga Base hospital where he remained under observation for a few days due to blood in his urine. He suffered no major injuries. Between the ages of 18 to 20 the plaintiff underwent a total of three operations on his lower back due to the presence of a pilonidal cyst, which was finally removed in 1991. In 1994 the plaintiff had an operation to repair a right inguinal-hernia. This was not work related. On 26 August 1996 the plaintiff injured his back while working with Laminex. X-rays were taken and as a result he was off work for two weeks. On 6 January 1997 the plaintiff had a recurrence of this injury and had three days off work. None of the other injuries would have affected his capacity for work. 8 In June 1997 and August 1997 the plaintiff dislocated his left shoulder while playing rugby league. On both occasions his shoulder was relocated without medical attention being sought. I accept that prior to this accident the plaintiff was in good physical health. In particular he had no lasting prior injuries to his left hand and arm. The accident 9 At about 1.00 am on 16 February 1998 the plaintiff was working as a tractor driver on a property at Echuca in Victoria. He shared the driving with another man. At about 2.00 am the plaintiff was standing at the back of the harvester. He was attempting to pull a vine out of the harvesting when his left hand became caught in the machine. His left hand was pulled in between the rollers of the harvester and it was trapped for some 1½ hours. Eventually, the police rescue squad and the jaws of life were called into operation to open up the rollers and free the plaintiff's hand. He was taken by ambulance to hospital. I shall return to the plaintiff's injuries later in this judgment. Claim for breach of contract 10 In January 1998 the defendant offered the plaintiff work primarily as a tractor driver. The plaintiff at all material times was employed by the defendant as a casual labourer harvesting tomatoes. The defendant has admitted that it breached its duties of care under the contract. It is noted that the defendant withdrew paragraphs (4) to (7) inclusive of the amended statement of claim at the conclusion of the plaintiff's evidence. 11 However, the appropriate law which governs the contract is in dispute. Hence, it is necessary to examine the terms of the contract. On about 28 January 1998, the owner of the local fish and chip shop in Wagga Wagga spoke to the plaintiff about a potential job and gave the plaintiff a telephone number to call. The same day the plaintiff made a telephone call and spoke to Stuart Morley. The plaintiff also told his friend Mr Warren Brown about the job opportunity. Ultimately Mr Brown also was employed by the defendant and he travelled and stayed in the same accommodation as the plaintiff. Mr Morley asked the plaintiff whether he had any experience driving tractors. The plaintiff replied that he did. Mr Morley asked the plaintiff if he would be able to start that afternoon. As the work required the plaintiff to be living away from home, he had to organise his children so he was not able to commence immediately. Mr Morley gave the plaintiff directions on how to get to the property and told him what he would need to take, such as boots, jeans, a cap, a drink bottle and a sleeping bag. The plaintiff was told that he would be paid something like $14 per hour. He was of the understanding that he would be working at Whitton. He thought that the work would last for a couple of months (t 9). 12 On about 30 January 1998 the plaintiff arrived at the defendant's office at Whitton and then had a further conversation with Mr Morley. Mr Morley told the plaintiff that he would be working 12 hour shifts, some of which were night shifts. Also from this conversation the plaintiff knew that he would not be paid for the downtime and that the overriding aim was to keep the harvester functioning at all times. He understood that the employer would provide him with accommodation. At the conclusion of that conversation, the plaintiff was immediately taken out to the paddock where the harvesting was taking place. A supervisor took the plaintiff out in the tractor and gave him a demonstration of how it worked. The supervisor also outlined the standards that were expected of him. (t 11). 13 The defendant submitted that the High Court decision in John Pfeiffer Pty Ltd v Rogerson (2000) 172 ALR 625; (2000) 74 ALJR 1109; (2000) 203 CLR 503 meant the appropriate law to be applied is that which applies in the State where the incident occurred, the lex loci delicti. If this proposition were correct the plaintiff's right to damages would be governed by the workers compensation regime in the State where the injury occurred, namely Victoria. If the Victorian law in relation to damages applied, the plaintiff would not be entitled to a lump sum to compensate him for the injuries he suffered. The defendant also submitted that there was an implied term of the contract that in the event of an injury occurring to the plaintiff during the course of his employment with the defendant, his right to damages would be governed by the workers' compensation regime in the State where the injury occurred. 14 In my view, the correct approach is not to imply a term into the contract but rather to determine the choice of law to be applied to the contract. It is my view that it is clear that the High Court decision of John Pfeiffer does not extend to include claims for breach of contract. At paragraph [20] Callinan J pointed out that the pleadings in John Pfeiffer did not make any reference to contract. Rogerson chose to frame and pursue his rights by reference to tort exclusively. 15 In relation to the contract, at paragraph [20] the High Court (per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) stated: "In cases which have some "foreign" element and concern the law of contract, or concern questions of status, it has long been accepted that the courts should identify and apply the law which governs the issue or issues that fall for decision. Thus, in cases concerning contracts, the courts seek to identify the proper law of the contract and, in cases concerning questions of status, they seek to identify the relevant governing law. The process of choice of law had, therefore, been well understood and accepted in these areas. In the area of tort, however, the position has been less clear." 16 The proper law to be applied where a contract has been breached was considered in Bonython v The Commonwealth [1950] 81 CLR 486 at 498 where their Lordships stated: "…the substance of the obligation must be determined by the proper law of the contract, i.e., the system of law by reference to which the contract was made or that with which the transaction has its closest and most real connection. In the consideration of the latter question, what is the proper law of the contract, and therefore what is the substance of the obligation created by it, it is a factor and sometimes a decisive one that a particular place is chosen for performance." 17 The principal factors to be considered when determining with which system of law the contract has its closest and most real connection are the place of contracting, the place of performance, the place of residence or business of the parties and the nature and subject matter of the contract – see Re United Railways of Havana and Regala Warehouses Limited (1960) 1 Ch. 52 at 91; Mendelson-Zeller Co Inc v T & C Providores Pty Limited (1981) 1 NSWLR 366 at 368-9. 18 There is no dispute that: (1) The contract was entered into either in Wagga Wagga or in Whitton, both of which are in New South Wales. (2) At the time the contract was entered into the plaintiff was a resident of New South Wales and the defendant had a place of business in New South Wales namely at Whitton. (3) At the time the contract was entered into the place of performance within the contemplation of both parties was at Whitton. That is the place where performance commenced and it then continued at Jerrilderie, New South Wales. It was after the contract was made that the plaintiff was directed to travel outside of New South Wales. The defendant's performance of its part of the contract by payment of the plaintiff took place in New South Wales by payment into the plaintiff's bank account at Wagga Wagga. (4) At the time the contract was entered into the nature and subject matter of the contract was the harvesting of a crop of tomatoes within New South Wales. (5) The contract contained no express terms in respect of the law to be applied to the contract. There was no oral discussion in respect of the law that was to be applied to the contract. (6) The accident occurred in Echuca, Victoria. 19 The place of contracting was the State of New South Wales. At the time of entering into the contract the place of performance was New South Wales and the subject of the contract was employment for harvesting of tomatoes. It is my view that the contract has its closest and most real connection with the law of New South Wales. At the time the contract was entered into the system of law with which it had a connection was the New South Wales system of law. Victoria was not even within the contemplation of the parties. The only link with Victoria is that the accident occurred there. Accordingly, the proper law to be applied to the contract is the New South Wales law. 20 If I am wrong and the correct approach is to imply a term into the contract, the outcome would be the same. In Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 it was stated that to justify the implication of a term in a contract which the parties have not thought fit to express, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express terms of the contract. 22 Also Mason J (as he then was) stated at 353: "The importance of this evolution of the law as it affects the construction of contracts is that it centres upon the presumed, rather than the actual, intention of the parties. Once it is accepted that in the construction of the contract account is taken of the presumed intention of the parties it naturally follows that account should also be taken of their presumed intention when the court is called upon to decide whether a term is to be implied." 23 At the time the contract was entered into, the term that, in the event of an injury occurring to the plaintiff in the course of his employment with the defendant, his right to damages would be governed by the workers compensation regime in the State where the injury occurred was never discussed. 24 The above term would not be implied because it is not so obvious that it goes without saying. Further, at the time the contract was made, the parties anticipated that his employment was to be within the State of New South Wales. 25 At the time at which the contract came into existence, the contract was connected only with New South Wales. Within that factual framework, the presumed intention of the parties was that the contract be governed by the law of New South Wales. Should it be appropriate to imply a term into the contract, that term would designate the proper law of the contract to be the law of New South Wales. 26 The defendant submitted that the decision in John Pfeiffer is indicative of a new direction by the High Court in questions regarding choice of law. As I have previously stated, it is my view that the decision in John Pfeiffer does not extend to include claims for breach of contract. Damages 27 Section 151E(3) of the Workers' Compensation Act 1987 provides that even though the claim is for breach of contract, damages are to be assessed under that Act. Non economic loss 28 There is little dispute over the extent of the plaintiff's injuries to his left hand and arm. There is no dispute that these injuries flow from the breaches of the terms of the contract. It is common ground that the plaintiff is not fit to return to heavy labouring activities and cannot operate heavy machinery. The plaintiff described the pain immediately after the accident as a 12 (out of 10). The initial assessment of the plaintiff's injuries revealed that he had sustained a severe crush injury to the left hand. There was a crush injury involving the palmar and dorsal surfaces of his left hand with evidence of an early compartment syndrome involving all interrossei of his left hand. It was also noted that the plaintiff had an open wound in the dorsal first web space of his left hand with total loss of both the extensor brevis and longus tendons to the left thumb. There was obvious contusion of muscle within the first web space, particularly the first dorsal interrossesous muscle and adductor pollicis muscle. This was a compound wound with exposure of the first metacarpal bone, which was fractured and angulated and protruding from the dorsal wound. There was heavy contamination of this wound. The plaintiff had also sustained an injury to his left ring finger, which was an undisplaced but angulated fracture of the proximal phalanx to the left ring finger. There was no other significant soft tissue injury with this wound (see treating orthopaedic and reconstructive surgeon, Dr Dickinson's report dated 21 September 1998). 29 The plaintiff underwent four operations, namely on 16 February 1998 a debridement of the left hand wound; 18 February 1998 a K-wire was inserted in the left ring finger; 19 February 1998 an open reduction and internal fixation with two screws for left first metacarpal, reconstructive muscle surgery and tendon transfer; and on 15 March 1998 the removal of the K-wire from left ring finger. The plaintiff had a skin graft on the top of his left hand. Skin was taken from his leg and a piece from his left forearm. There is a noticeable scar on his left forearm – see photographs in Ex C. The plaintiff is right hand dominant. 30 After discharge from hospital, the plaintiff attended his general practitioner on a daily basis. Over a few months the visits decreased to once a week for the changing of dressings and checking on the progress of the left hand. The plaintiff has been left with a permanent disability. His grip strength and stamina is markedly reduced in his left hand. Overall, however, the plaintiff has made a good physical recovery and no longer suffers from the adjustment disorder that troubled him in the immediate aftermath of the accident. 31 The current problems experienced by the plaintiff are an unpredictable sharp shooting pain up his left thumb. This pain ranges from 3-9/10 in intensity. After exertion the plaintiff also has an intermittent dull ache which occurs at the base of his left thumb at a 5/10 intensity. There is also decreased thumb to index span in the left hand, numbness in the posterior web space between the plaintiff's left thumb and left index fingers, a painful lump at the base of his left thumb, and an intermittent itchiness along the anterior-medial aspect of this thumb. The skin graft area covering the base of the plaintiff's left thumb is hypersensitive to touch, intermittent swelling occurs near this area, and aches in this region make it difficult for the plaintiff to sleep at night. He has difficulty making a fist, holding paper with his left hand, stabilising jars while opening them, sustaining grips and he finds his forefinger annoying, as it does not work. 32 He experiences pain in his hand on a daily basis. Sometimes it last an hour, sometimes it is unremitting and lasts all day and all night. Constant use of his hand causes him to suffer pain. He does not take any medication for pain relief as he does not find it of assistance. 33 The plaintiff's injury to his left hand has meant that he can no longer play football or undertake most other sporting activities. He also has difficulty with some day to day tasks such as tying his shoe laces and undoing tops off jars and the like. He cannot play with his children actively as he did prior to the accident. 34 After taking all of these factors into account, I assess the plaintiff's non economic loss as 40% of a most extreme case. This equates to $90,660. Out of pocket expenses 35 Out of pocket expenses have been agreed at $17,760.76. Fox v Wood 36 The amount payable pursuant to Fox v Wood has been agreed at $13,310.53. Past economic loss 37 In 1988 the plaintiff commenced employment with McEwans Home Hardware as a storeman and salesman. He spent 80% of his time in the storeroom. In 1990 the plaintiff left his employment with McEwans to commence work with Wagga Blind and Awning as an installer subcontracting, full time, five days per week. In addition, during this period, he was working part time at Thomas Blamey Tavern as a barman two to three times per week approximately five hour shifts for 18 months. 38 In June 1992 the plaintiff commenced employment with Fred Clark Australia (FCA) as a storeman/clerk. FCA manufacturers stainless steel sinks, tubs etc. The plaintiff supervised the warehouse, took records of ingoing and outgoing stock, took orders, dealt with customers and drove a forklift. As a one man operation he had to undertake heavy work such as lifting tubs. 39 On 24 March 1994 the plaintiff commenced employment with Laminex Limited as a forklift operator/driver. Laminex produced medium density fibreboard. The plaintiff operated a Holzman saw to cut particle boards and drove a forklift to move and lift the boards. Prior to commencing employment a medical examination revealed that the plaintiff had a right inguinal hernia. In order to get the job with Laminex he underwent surgery to rectify this problem. In 1997 the plaintiff left his employment with Laminex after a disagreement with his supervisor. 40 For the year ended 30 June 1996 (while the plaintiff was employed by Laminex) the plaintiff earned $40,215 gross. This equates to $583 net per week. From 1 July 1996 until 23 April 1997 the plaintiff earned $32,996 gross. This equates to $590 net per week. While the plaintiff was employed by the defendant doing seasonal work he earned $943.50 net per week. Between the plaintiff's employment at Laminex and with the defendant there was an interval of seven months where the plaintiff was unemployed. 41 Dr Honner (report dated 24 December 1998) expressed the opinion that the plaintiff is now permanently unfit to return to the type of labouring work that he used to do, due to a 33% loss of use of the left arm below the elbow, and can now only carry out selected occasional light duties with his left hand. He was of the view that the plaintiff would be fit to carry out work as a security officer. 42 Luba Eikens, rehabilitation physician (reports dated 8 June 1999 and 7 June 2000) opined that the plaintiff was not fit to return to heavy manual labouring work, or work requiring bimanual precision. Dr Eikens thought that the plaintiff was fit to work as a salesman, as a security officer, as a console operator and to do other lighter duty work, that did not require bimanual dexterity, or heavy repetitive use of the left arm. She thought it would be advisable for the plaintiff not to work with heavy machinery. Jocelyn White, occupational therapist (report dated 10 June 1999) more accurately stated that the plaintiff would be fit for some aspects of work as a security officer but is now best suited to low impact tasks such as administrative work. 43 Ruth Erby physiotherapist in her report dated 8 October 2001 based on the results of her assessment opined that although there are limitations with the left hand and thumb functions the plaintiff is physically capable of performing his pre-injury work as a seasonal tractor driver. This may be so, provided he does not have ancillary labouring duties. She said that the plaintiff was also suitable for full-time work in sedentary and semi-sedentary positions with occasional light work demands, but repetitive fine motor tasks using the left hand should be restricted. 44 Dr Dickinson, in his report dated 30 July 1999, said that the 10-15% permanent disability in the plaintiff's left hand makes it likely that he will only be able to pursue careers requiring light use of this hand. In his report dated 22 February 2001, Dr Millons opined that there has been a clear loss of dexterity and strength in the plaintiff's left hand. He then stated that the plaintiff has had a good result from what was a potentially devastating injury, and that security work would certainly be within his capacity, as would light driving jobs or work as a forklift operator. Similar conclusions were reached by Dr Harvey (report dated 9 January 2001), who added that the plaintiff could perform a broad range of lighter work that did not involve powerful gripping with the left hand, and that driving a forklift was well within the plaintiff's capabilities. He felt that the plaintiff was capable of a 'little more' than security work. While the doctors are not specific as to precisely when the plaintiff was fit for light duties, it is generally expressed as the end of 1998. 46 In summary, the plaintiff prior to the accident had been in continual employment for about nine years, although between his period of employment with Laminex and the defendant he experienced seven months of unemployment. The plaintiff's employment prior to the accident involved manual work and some heavy labour. 47 In 1999 after some work experience as a security officer, the plaintiff obtained a seasonal security type job which involved asking drivers of trucks pulled up for inspection questions about fruit flies. This seasonal work lasted a few months and ended in October 1999. He let his security licence lapse. The plaintiff has not been in employment since the end of 1999. By the end of 1999 the plaintiff had had some work as a security officer. He was fit for light duties. 48 The plaintiff has recently moved to Sydney and has painted his uncle's house in exchange for board. He currently has the same arrangement with his cousin. He has difficulty climbing the ladder as his left hand gives way and he can only paint with his left hand, so he is unsuited for this type of work. He has sought employment in a Woolworths store, which would involve stacking shelves. He gave evidence that when that potential employer was informed that he was currently receiving worker's compensation payments he was not viewed as being an employable prospect. In any event, stacking shelves and moving heavy boxes is not work that the plaintiff can undertake due to his injured left hand. 49 It is my view that on the balance of probabilities the plaintiff would not have continued in seasonal work of the type on a long term basis even though it was financially rewarding. On the balance of probabilities, it is more likely than not that the plaintiff would have returned to work of the type he had performed at Laminex in 1997 in pre-accident years. His earnings from this type of job in 1998 was $590 net per week. 51 The plaintiff submitted that past economic loss should be calculated at $108,637 whereas the defendant allowed $63,385. The defendant allows $8,019 from the date of the accident, ie., 16 February 1998 up to 16 April 1998 which is the amount the plaintiff would have earned with the defendant had he not been injured and had completed the seasonal tomato harvesting. I allow this amount. From 16 April 1998 until 31 December 1998 the defendant accepts that the plaintiff was not fit for work and calculates loss at $600 net per week. It is my view that the plaintiff is entitled to compensation for this period and additionally for the period in which he was undergoing rehabilitation. In October 1999 the plaintiff completed the security course and obtained some employment in this area. I allow the sum of $612 per week being the average weekly earnings for this period. For the period 16 April 1998 to October 1999 the plaintiff's loss of earning capacity equates to the sum of $46,512. The plaintiff has earned the amount of $1,694 which has to be deducted from the amount awarded. The amount of loss of earnings for the period 16 April 1998 to October 1999 is $44,818. 52 From 1 October 1999 to date the plaintiff submitted that he is entitled to the sum of $450 per week. The defendant allowed $200 per week loss of earning capacity. While the plaintiff gave evidence that his heroin addiction did not prevent him working, it is my view that since 1 October 1999 to date the plaintiff has not made genuine efforts to find work due to two main factors, firstly, his disintegrating family life, and secondly, the injury to his left hand. He is intelligent and capable of more retraining, and not just by limiting himself to security type work. He has expressed an interest in computing. However, I accept that the injuries to his left hand will affect his ability in this field of endeavour. By October 1999 the plaintiff had stopped taking heroin. The plaintiff was undergoing the methadone program but that ceased in March 2000. I accept that the plaintiff's domestic life has stabilised, however not in a way that gives the plaintiff much joy. From October 1999 to the date of hearing I assess the plaintiff's residual capacity at $250 net per week. This equates to 127 weeks @ $250 = $31,750. Total past economic loss = $76,568. 53 As at the date of trial, the plaintiff's problems in his domestic situation and prior drug problems had abated. I accept that the plaintiff's domestic life has stabilised, however not in a way that gives the plaintiff much joy. The loss of his earning capacity from this date continuing to retirement age is attributable solely to his injuries to his left hand that were sustained in the accident. I assess the plaintiff's future economic loss of earning capacity at 40% of $680 net per week. This equates to the sum of $272 net per week x 845 =$229,840 less 15% for vicissitudes equals $195,364. Loss of contributions on past and future superannuation 54 This is assessed at 9% of total past economic loss, namely $76,568 x 9% = $6,891.12. Loss of contributions on future superannuation is equivalent to $17,582.76. Total loss of superannuation contributions equals $24,473.88. Past domestic assistance 55 The parties agree that the amount allowable for past domestic assistance is $6,616. No claim is made for future domestic assistance. Less workers compensation payments made 56 The amount of weekly payments which have been made and need to be repaid have been agreed at $123,473.56. Judgment 57 I propose to enter judgment, once the parties have had the opportunity to check the calculations, that the defendant pay to the plaintiff the sum of $301,278.61 which I round off at $301,279.00. 58 I propose to enter judgment that: (1) The defendant is to pay to the plaintiff the sum of $301,279.00. (2) The defendant is to pay the plaintiff's costs as assessed or agreed. SCHEDULE $ Non economic loss 90,660.00 Out of pocket expenses 17,760.76 Fox v Wood 13,310.53 Past economic loss 76,568.00 Future economic loss 195,364.00 Loss of past and future superannuation 24,473.88 Past domestic assistance 6,615.00 Less workers compensation paid -123,473.56 TOTAL 301,278.61 ROUNDED OFF $301,279.00 ********** Last Modified: 03/14/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.