Knezevic v Westaway [2005] WADC 45 (15 March 2005)

Last Updated: 28 November 2006

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH

CITATION : KNEZEVIC -v- WESTAWAY [2005] WADC 45

CORAM : CHANEY DCJ

HEARD : 15­18 NOVEMBER 2004

DELIVERED : 15 MARCH 2005

FILE NO/S : CIV 1663 of 2003

BETWEEN : CEDO KNEZEVIC

Plaintiff

AND

ROY MARTIN WESTAWAY

Defendant

Catchwords:
Permanent injuries - Assessment of damages - Loss of earning capacity - Soft tissue injury to lower back - turns on own facts

Legislation:
Motor Vehicle (Third Party Insurance) Act 1943, s 3C

Result:
Judgment for plaintiff for $73,747.95

Representation:

Counsel:

Plaintiff : Mr G Droppert

Defendant : Mr JPT Olivier

Solicitors:

Plaintiff : Ilberys

Defendant : Talbot & Olivier

Case(s) referred to in judgment(s):

Jongen v CSR (1992) A Tort Rep 81-192

Case(s) also cited:

Nil

1 CHANEY DCJ: On 26 July 2002 at approximately 4.15 am, the plaintiff, Mr Cedo Knezevic, was on his way to work driving his Toyota Corona sedan. He was in Main Street, Koondoola. As he proceeded through a green traffic light at the intersection of Main Street and Amelia Street, a vehicle driven by the defendant came from the plaintiff's left hand side through the red light facing Amelia Street. The two cars collided, and the plaintiff's vehicle was spun through 180 degrees before striking the base of a light pole.
2 Mr Knezevic was initially unable to get out of his car, and remained there until an ambulance arrived. He immediately felt pain in his lower back. He was taken by ambulance to Sir Charles Gairdner Hospital where he remained for a day before being discharged. He has not worked since the accident, and now claims damages for negligence from the defendant. The defendant's negligence is not denied, so that the question to be determined in these proceedings is the quantum of the plaintiff's damages.

The plaintiff's background

3 Mr Knezevic was born in Yugoslavia in February 1969. He was, therefore, 33 at the time of the accident, and was 35 at the time of trial.
4 The plaintiff attended school in Croatia and completed his secondary schooling which involved four years study. He left school with a certificate as a drawing technician. He entered the compulsory military service then required in Yugoslavia for a period of 12 months, leaving the army when he was 19 years old.
5 About three months after leaving the army, he obtained his first job in a ship yard. His work involved drawing parts for ships. That work involved receiving instructions in his native language, and endorsing drawings in that language. He spent some two and a half years in that employment.
6 The plaintiff said that he was happy in that work and would have continued with it. However, the break up of Yugoslavia, and the war that followed affected his employment and his life significantly. Because he was of the Serbian Orthodox religion, he lost his job. Because of the animosity towards people of that religion, he was unable to obtain alternative work. Accordingly, he moved back to the village of his birth in 1992. He remained unable to find work there, and basically lived a subsistence existence. While in his village, however, he met his now wife, Gordana, whom he married in 1994. They had a son that year.
7 In 1995, the Croatian forces came to the plaintiff's village. The plaintiff said that all men between the ages of 18 and 70 were then imprisoned. The plaintiff was taken away from his house in a truck and was held in prison for six months. During that time he was subjected to torture in the form of punching around the area of his head and shoulders. He also knew nothing of the whereabouts of his wife, child and family, and understandably, was distressed about that.
8 Eventually, the plaintiff was released from prison and, after making enquiries through United Nations organisations, located his family in a refugee camp in Serbia Montenegro. He was reunited with his family, including his brothers and mother. He stayed with his wife in the camp for two to three months before moving to another town where he found work, through a friend, in a factory which made parts for machinery associated with the production of paper products. He stayed for three years in that town, and during that time, applied for migration to Australia.
9 The application for migration to Australia was ultimately approved, and he arrived in Australia in 1998. He obtained accommodation and received support after a short time from Centrelink.
10 On his arrival in Australia, the plaintiff did not speak English. He enrolled for a course which involved 510 hours of tuition in English. That course was undertaken in the city. It involved study for five days per week. After approximately one year, he obtained some part-time work as a cleaner. He continued working, on a part time basis, as a cleaner from that period until the accident in July 2002. He changed employer several times in that period. The details of this employment will be dealt with later in these reasons.
11 The plaintiff said, and I accept, that prior to the accident, he enjoyed good health, and in particular had had no problems with his back.
12 In October 2001, the plaintiff and his wife had a second child, a girl. The family apparently settled well in Australia. Mrs Knezevic, prior to the birth of her daughter, did some part-time work, and they established friendships in Australia, principally I gather with other immigrants from the former Yugoslavia. Mr Knezevic played soccer with his friends, which gave him both a sporting and social interest.
13 Mr Knezevic gave evidence in English, although an interpreter was on stand-by lest she was needed. Both counsel questioned the plaintiff appropriately in the light of his limitations with the English language, and I was satisfied that he was sufficiently competent in the English language to understand and respond to the questions that were put to him. Having said that, some allowance must necessarily be made to construction of the precise terminology that the plaintiff sometimes employed. In general, I found the plaintiff to be a truthful witness.

The plaintiff's condition since the accident

14 On his discharge from hospital, Mr Knezevic was told to attend physiotherapy, and was provided with pain killers. About three days after the accident he consulted Dr Chang, a general practitioner who organised physiotherapy for him, which he attended on two occasions. He was treated by massage, and given a programme of exercise which consisted of walking in a swimming pool, and utilisation of a fitness ball to improve his back strength.
15 His problems were mainly in his low back. He found physiotherapy helpful for a brief time after each treatment, but he said that after about an hour the pain in his low back returned.
16 After about a month, he was requested to return to work, but did not consider himself able to because of the soreness in his back. He said that he considered that using a vacuum cleaner carried on his back, and lifting and bending involved in his work would aggravate his symptoms. He saw Dr Chang initially approximately twice per month. He was being prescribed pain killers, and medication to assist his sleep. At Dr Chang's suggestion he consulted a psychiatrist and undertook a programme through Centrelink to deal with anxiety. It is unclear to what extent that anxiety was a symptom of the consequences of the accident, or was related to his traumatic experiences in his home country, or a combination of the two.
17 As a result of his symptoms, Mr Knezevic said that he no longer attended to the gardening and lawn mowing at his home, nor could he do all of the heavy jobs which he formerly did. He accepted that his wife did most of the housework. He ceased playing soccer which, prior to the accident, he was doing on a regular basis twice a week. He said that he would occasionally go to the park with his children and gently kick a ball with them, but he said that kicking brought on soreness in his back.
18 Mr Knezevic said that he could no longer chase his 3-year-old daughter around, and could no longer carry her as he did prior to the accident. This caused him a degree of distress. He said that bending was not easy, and that he was capable of walking slowly for a half to three quarters of an hour without too much difficulty, although since physiotherapy ceased (because funding was withdrawn by the insurer) he said that walking brought on soreness after about 10 minutes. His ability to drive a car was affected, in that he would feel comfortable for approximately 20 minutes, but after that he began to feel sore. He said he had some difficulty getting into and out of cars, although his symptoms were variable, some days being good and some days bad.
19 Mr Knezevic said that he did not feel able to do most of the tasks which were required in his previous employment as a cleaner such as carrying a portable vacuum cleaner, shifting tables and lifting rubbish. He considered he has limitations in his employment in other fields largely by reason of his limited English.

The medical evidence

20 A number of medical practitioners gave evidence at trial. None of them suggest that Mr Knezevic did not suffer an injury to his lower back in the accident in July 2002, or that he did not suffer symptoms as a result of that accident. There was, however, some disagreement between the practitioners as to the precise nature of the injury which he suffered and some disagreement as to his prognosis. I have no doubt that each of the medical practitioners gave evidence in a balanced and professional way, and expressed their genuinely held views as to the nature and extent of Mr Knezevic's injury, and their prognosis. As is not uncommon in cases involving back or neck symptoms where no obvious pathology exists, it is almost inevitable that different practitioners will form differing views as to diagnosis, treatment and prognosis. That likelihood is increased if, as was the plaintiff's evidence in this case, the symptoms are not constant but fluctuate over time and as a result of activity levels. For example, in this case, the visit to Dr Bowles in August 2004 occurred following the plaintiff visiting the newly opened Convention Centre in Perth, an activity which involved a deal of walking. That may explain why his limitations described or demonstrated to Dr Bowles were more pronounced than described or demonstrated on other occasions.
21 Mr Slinger, a spinal surgeon, saw Mr Knezevic in February 2003, some seven months after the accident. He concluded that the plaintiff suffered soft tissue injuries to his lumbar spine, and that the symptoms of tenderness and restricted movement described to him by the plaintiff related directly to the accident. He anticipated that the limitation in Mr Knezevic's activities would show further improvement. He thought that Mr Knezevic's symptoms should not prevent him returning to work of a light nature, avoiding heavy lifting. In January 2004, Mr Slinger reviewed the plaintiff and expressed much the same opinion, suggesting that employment not involving lifting, repetitive bending or maintaining a flexed position for any length of time could commence on a part time basis leading to full time work over a period of months. In cross-examination, Mr Slinger confirmed that he thought Mr Knezevic would probably improve, but said definitely that he won't get worse.
22 Professor Mastaglia, a consultant neurologist, examined the plaintiff in July 2004. He reviewed a CT scan and an MRI scan, and noted on the former a small central disc herniation at the L5/Sl level. The MRI scan showed evidence of disc degeneration at the L4/5 and L5/S1 levels with a radial fissure and minor disc bulge at the latter level. He diagnosed an injury to the L5/S1 intervertebral disc which he thought to be the cause of the ongoing back pain. He considered Mr Knezevic to have a significant disability in relation to his back injury which interfered with his everyday domestic and recreational activities, and considered the prognosis for a full recovery to be poor. He considered Mr Knezevic unfit for work as a cleaner but would not rule out the possibility of being able to cope with lighter duties or less physically demanding work. In cross-examination, he accepted that the expression "significant disability" was a term which he used when there was any reduction in capacity. He considered the principal injury to be the herniation at the L5/S1 level which he said the MRI scan had shown to have resolved to some extent with time. He thought that the problem may continue to resolve over the coming years.
23 Dr Chang, Mr Knezevic's treating general practitioner also gave evidence. In December 2002, he expressed the view that the plaintiff had sustained a soft tissue injury to his back and predicted a full recovery. By November 2004, Dr Chang felt that the natural history of the degenerative condition of Mr Knezevic's spine can be expected to get worse as he gets older. He believed that that condition was related to the injury, although he conceded that there were other possible causes.
24 The defendant called Dr Michael Bowles, an occupational physician. He saw Mr Knezevic initially in November 2002. He observed what he described as a "moderate level of pain behaviour whilst undertaking a formal range of movement in the back" and some inconsistencies in relation to straight leg raising. He felt that there were "strong non-organic components" to Mr Knezevic's description of his pain and his physical examination. On that basis he felt that Mr Knezevic had little if any ongoing problem with his low back and that he was fit to carry out normal everyday activities, including a return to cleaning. He accepted that Mr Knezevic may have some "mild underlying mechanical back pain".
25 On review in August 2004, Mr Bowles considered that Mr Knezevic's position was substantially unchanged. In his report of 31 August 2004 he made the following observation:

"The contemporary scientific and medical opinion on these type of complaints thus far after an acute event is that any tissue damage sustained in the accident has since resolved. Mr Knezevic is complaining of pathological pain, that is pain that forms no useful biological function. There is an increasing body of evidence that there is neuroplasticity in the CNS where in essence the person does not forget the pain experience. Chronic pain issues are also associated with anxiety and depression and previous abuse issues."

26 Mr Bowles thought that the current barriers to restoration of function included a lack of activity by Mr Knezevic, his individual pain perceptions and dealing with those perceptions along with systemic influences that reinforce pain behaviour. He considered that there were no substantive physical factors precluding Mr Knezevic from returning to work. In evidence-in-chief at trial, Mr Bowles was asked to elaborate on the statement in his report that he could not state the exact nature of the injury sustained. In response he said:

"There was an injury. I think there was sudden back pain after the event but we're not at the point of medical science where we can ... describe the exact pathological injury that went on there and I think that's not specifically necessary from a medical perspective ... to commence appropriate treatment ... medically we need to exclude that there's no [sic, a] serious or dangerous condition going on ... and following on from that the medical profession is not advanced enough ... to have a test or to say, 'Well, the exact injury is a tear here or a this there.'..."

27 Dr Bowles' position was that, having excluded any serious pathology, the appropriate focus was on the treatment necessary with a view to overcoming symptoms and enabling a return to active function and employment. He agreed in cross-examination that some people, because of their previous experiences are more fragile to subsequent pain experiences and that people suffering from a degree of anxiety can end up experiencing prolonged pain states.
28 The defendant also tendered a report of an orthopaedic surgeon, Mr Nicholas Anastas. He saw Mr Knezevic in September 2004. He diagnosed the plaintiff as having features consistent with a soft tissue musculo-ligamentous type injury to his lumbosacral spine. He said that the soft tissue injury "is in association with evidence of disc degeneration of the L4/5 and L5/S1 levels. The degeneration he thought to be more likely to have arisen from work as a cleaner and suggested that it may be a factor in delaying recovery. Like Mr Bowles, he found inconsistencies in certain aspects of his examination. His view was that Mr Knezevic's symptoms were consistent with the nature of the injuries alleged by Mr Knezevic. Mr Anastas thought that the incapacity would lessen with time. He thought that the plaintiff could not return to work if it involved heavy lifting or repetitive bending but was otherwise fit to engage in full time work.
29 Dr Rosen saw Mr Knezevic in September 2004. He considered that the duration, severity, persistence and distribution of the symptoms complained of were not consistent with the radiological evidence and difficult to reconcile with the type of injury sustained. It was his opinion that the plaintiff sustained a musculoskeletal strain type injury to the soft tissues of his lower back in the accident.

Conclusions as to the plaintiff's medical condition

30 There is a general agreement amongst all the medical practitioners that the plaintiff suffered a soft tissue injury in the accident on 26 July 2002. There is also a general acceptance that, as a result of that injury, Mr Knezevic suffered pain in his lower back which has persisted through to trial. The difference between the doctors is as to the cause of that pain, the extent to which it renders the plaintiff unfit for work, and the likelihood of its improvement with time.
31 It is sufficient for present purposes to, and I do, find that the plaintiff did suffer a soft tissue injury to his low back in the accident. That finding can be made on the basis of the views of all medical witnesses, without the need to determine the precise mechanism of the injury. Similarly, a finding can be made that the pain resulting from the injury has genuinely been experienced since the accident. I accept Mr Knezevic's evidence that the level of pain and restriction on movement has fluctuated depending upon his level of activity, and to some extent presumably on the medication he has taken.

The plaintiff's fitness for work

32 However, having accepted that Mr Knezevic suffers a level of low back pain, the question arises as to the extent to which that pain impairs his working capacity. Dr Bowles was unable to find evidence of any impairment of a physical nature that would preclude the plaintiff from undertaking any activity he wished observing that "his complaints are of pain only". He said that the medical profession is unable to differentiate someone who works with such complaints and someone else who feels they cannot continue with similar complaints. He appeared to accept that Mr Knezevic fell into the latter category. Mr Anastas considered that he would be unable to return to work as a cleaner if it involved repetitive bending and heavy lifting. I am satisfied that the description of the work as a cleaner that Mr Knezevic gave in his evidence does involve repetitive bending and lifting. Dr Rosen considered that it is likely that his working capacity for manual labour had been impaired but that the exact degree of physical impairment and disability was obscured by psychological symptoms. Mr Slinger's view was that the plaintiff was not fit to return to his pre-accident occupation but was capable of returning to work not involving lifting and repetitive bending. The same view was expressed by Professor Mastaglia and Dr Chang.
33 I accept that the pain experienced by Mr Knezevic has prevented him from returning to his pre-accident employment, and that pain, which is a consequence of the accident, has resulted in his incapacity to return to his pre-accident employment.
34 I do not accept, however, that the plaintiff has lost his capacity for full time work of a nature likely to provide him with earnings at least equal to those he would have received as a cleaner. There are, however, other factors which have impacted on his capacity to work in another field. Principal among those is his limitation in the English language. Mr Knezevic presents as an intelligent and pleasant man. In his former country, he worked as a draftsman. Work of that nature would enable him to stand or sit as he saw fit, to move around when necessary and to avoid lifting or repetitive bending and would appear to be physically open to him. One might imagine other positions for which Mr Knezevic might be trained which he would have the physical capability of undertaking. The prospects of obtaining that sort of employment increase as his grasp of the English language improves, and, as the preponderance of medical evidence suggests is likely, as his symptoms gradually improve.
35 Mr Knezevic himself appears to have recognised the potential to retrain and gain employment. Through Centrelink he has undertaken further studies in literacy and numeracy during 2004. In mid-2004 he enrolled in a programme known as "Employment Plus" with a view to finding work, but he was unable to be placed in a suitable position. He considered that if his English improved he was capable of working but that his limitation in English prevented him undertaking jobs such as a shop or service station attendant or in the field of technical drawing involving instructions in English.
36 In summary, the accident has resulted in impairment to the plaintiff's capacity to work in his pre-accident employment as a cleaner. I am satisfied that while his physical condition would permit work in other fields, the plaintiff has been unable to work in those other fields because of a lack of suitable qualifications or a skill in the English language. As a consequence, the accident has deprived the plaintiff of an ability to earn an income throughout the period to trial. It can be expected that, in a relatively short time, the plaintiff's further study in English, and efforts to retrain in some appropriate area, will result in his obtaining employment of a nature that is likely to earn at least the amount that he could have earned as a cleaner.
37 It follows that, in my view, the appropriate approach to the question of the plaintiff's past and future loss of income is to treat the plaintiff as incapable, by reason of the accident, of gaining any employment from the time of the accident to the date of trial, and to conclude that that incapacity is likely to extend a further six months after trial. The question then becomes how one measures the value of that lost capacity.

Past loss of earnings

38 At the time of the accident, the plaintiff was employed by Tempo Services Pty Ltd. He had worked with that organisation for a little over two months. Prior to that, he had been employed by Pana Cleaning Services for approximately six months. Prior to that he had not worked for some time having finished employment with Biniris (Aust) Pty Ltd some time in the first half of 2001, having worked for that company from mid 2000. Before that he worked for Charles Cleaning Services for about 12 months.
39 It is apparent that, with each change of employer, Mr Knezevic increased his hours, and his earnings. With Charles Cleaning Services, his first job in Australia, Mr Knezevic earned approximately $71 per week. In the following financial year, when employed by Biniris (Aust) Pty Ltd, Mr Knezevic earned a gross income of $2,088. It is difficult to translate that to a weekly rate of earnings, because Mr Knezevic's evidence, which I accept, was that during his wife's pregnancy in 2001, she was ill, and Mr Knezevic ceased working in order to look after her. That explains why his earnings did not commence in the 2001/2002 financial year until 11 November 2001. No doubt that period of unemployment commenced some time in the latter part of the previous financial year. When employed with Pana Cleaning Services between November 2001 and May 2002, Mr Knezevic earned a gross income of $4,733. That represents approximately $170 per week. For the first five weeks of his next and final job with Tempo Services, he earned $1,256, or an average of $251 per week. In the three weeks of the financial year ending in June 2003, that Mr Knezevic worked prior to the accident, he earned $1,411, or approximately $360 per week. Taking the whole period that the plaintiff worked for Tempo Services Ltd, his average earnings were $296 gross per week which equates to a net income of $260 per week after allowing for income tax and Medicare levy. The plaintiff submits, and I accept, that that is the appropriate figure to take to assess the plaintiff's loss of income in the weeks and months following the accident.
40 It was the plaintiff's evidence that he proposed to continue to increase his hours of work, and would have commenced full-time employment at the beginning of 2003. He intended eventually to save sufficient to commence his own cleaning business. I accept that it is likely that the plaintiff would have sought to increase his income with the passage of time. The defendant argued that the plaintiff's work history was intermittent and that the proposition that he would have undertaken full-time work should not be accepted. I accept that there is some prospect that the plaintiff may not have increased his work to a full-time load for various reasons. His history demonstrates a desire on his part to dedicate time to his family commitments, and to English language courses. He has, as earlier mentioned, continued with English language courses since his accident. There is a reasonable prospect that he would have continued to do that if the accident had not occurred, with the result that his capacity for full-time work may have been effected. Those possibilities suggest that it is appropriate to apply a reasonably substantial discount for contingencies to the amount represented by a loss of income based upon full-time employment from 1 January 2003.
41 Accordingly, the plaintiff should be awarded past loss of income based upon the loss of a net amount of $260 per week from 26 July 2002 until 31 December 2002, which represents an amount of $5,980. The average earnings of full-time male cleaners, according to Australian Bureau of Statistics publication of employee earnings was approximately $620 per week gross as at May 2002. The plaintiff claims an amount of $640 per week on the basis of a reasonable allowance for a modest increase from May 2002 to the period between January 2003 and November 2004 when the trial took place. I accept the plaintiff's approach as reasonable. The plaintiff's claim for the 26 week period between 1 January 2003 and 30 June 2003, based on a gross income of $640 per week, and net income of $507 per week amounts of $13,182. The period of 1 July 2003 to trial, is calculated on a net income of $511, taking account changes to the Income Tax and Medicare deductions relative to that period, and comes to a total of $36,792. The total for the period of 1 January 2003 to trial amounts, there, to $49,974. For the reasons indicated, I would apply a discount of 25 per cent to that figure, giving an allowance in relation to that period of $37,480. No discount should be applied to the period between the accident and 31 December 2002, so that the total figure for past loss of earnings becomes $43,460.

Interest of past loss of income

42 It is appropriate to allow interest on the past loss of income over a period of 2.3 years at three per cent per annum which produces a figure of $2,998,77 which I round up to $3,000.

Past loss of superannuation

43 The gross income, applying a 25 per cent reduction for the period between January 2003 and trial, that the plaintiff would have earned between the accident and trial is $46,348. Applying the 30 per cent deduction pursuant to Jongen v CSR (1992) A Tort Rep 81-192, and allowing superannuation entitlements at nine per cent ($46,348 x 9% x 70%) results in a figure of $2,920.

Future loss of earning capacity

44 As indicated above, it is reasonable to conclude that, having now had the benefit of further training in English, and in the expectation of a progressive improvement of his condition, an appropriate allowance is for a future loss of income for a period of six months after trial. The amount thus calculated should be discounted on the same basis as applied to the period from January 2003 to trial. In view of the short period of that allowance, and the fact that payment will not be received until a significant portion of that period has elapsed, no separate discounting for present value should be applied. Allowing a net figure of $511 per week for 26 weeks amounts to $13,286. When discounted by 25 per cent for contingencies, a figure of $9,964 results, which I round up to $10,000 as the sum for the award for future loss of income.

Superannuation on future loss

45 Superannuation calculated at nine per cent, allowing for a 30 per cent Jongen deduction produces a figure of $630.

Past medical expenses

46 A schedule of pharmaceutical expenses incurred by the plaintiff between June 2003 and November 2004 was tendered (exhibit 8). As I understand the evidence, all other medical expenses appear to have been met by the defendant's insurer. The pharmaceutical expenses amount to $537.95, and I would allow that amount as recoverable under this head of damage.

Future medical expenses

47 The evidence in relation to any claim as to future medical or pharmaceutical expenses was scant, and the parties accepted that any quantification of future expenses would be substantially dependent upon my conclusions as to the nature and extent of the plaintiff's injury. I have accepted that it is likely that the plaintiff's condition will gradually improve, and it follows that his need for attendances on his general practitioner, and for medication, as a result of the injury sustained in the accident, is likely to reduce with time. There is no suggestion that the plaintiff will require anything in the way of specialist treatment in relation to his injury. It is reasonable to conclude that the plaintiff will require occasional visits to his general practitioner at least for the purpose of obtaining prescriptions for the medication he currently takes. Dr Chang suggested that regular review would be a good idea, and suggested that initially it should be monthly reviews. He was unable to say how long those reviews might need to continue because it would depend upon progress. He also suggested that some form of regular physical rehabilitation might be desirable.
48 Dr Chang was, however, at odds with the specialist practitioners as to the prognosis for Mr Knezevic's condition. Dr Chang alone thought that Mr Knezevic's position would deteriorate. I prefer the evidence of the specialists on this point.
49 In the circumstances, I am of the view that a relatively nominal amount should be provided for future medical expenses, in view of my conclusions as to the likelihood of Mr Knezevic's improvement and the general consensus that little in the way of medical intervention was likely to be of assistance. I accept that some ongoing pharmaceutical needs will exist, and that occasional review will be appropriate. In the circumstances, I have concluded that an allowance of $500 would be appropriate.

General damages

50 The plaintiff's non-pecuniary loss must be assessed by reference to a comparison to "a most extreme case": s 3C(1) of the Motor Vehicle (Third Party Insurance) Act 1943. The discussion above as to the plaintiff's condition since the accident indicates that the plaintiff's injury has interfered with his enjoyment of life in a reasonably significant way. On the other hand, it was properly conceded by his counsel that Mr Knezevic's case is at the lower end of the range by comparison to a most extreme case. In my view, the interference with Mr Knezevic's enjoyment of life, and the pain and suffering which he has endured should be assessed at 10 per cent of a most extreme case. Applying the formula prescribed by the Act, that results in an award under the heading of general damages in the sum of $12,700.

Conclusion

51 It follows that the plaintiff is entitled to damages calculated as follows:

Past loss of earning capacity $43,460.00

Interest of past loss $ 3,000.00

Past loss of superannuation $ 2,920.00

Future loss of earnings $10,000.00

Future loss of superannuation $ 630.00

Past special damages $ 537.95

Future special damages $ 500.00

General damages $12,700.00

Total $ 73,747.95

52 There should be judgment for the plaintiff in that sum.