Bunning v HURLEY'S Arkaba Hotel - [2008] SADC 175

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
BUNNING v HURLEY'S ARKABA HOTEL
[2008] SADC 175
Judgment of His Honour Judge Boylan
19 December 2008
TORTS - NEGLIGENCE
Plaintiff suffered a spinal injury when chair was moved from behind her in gaming room at the defendant's premises - Defendant in breach of duty of care to plaintiff. No contributory negligence.
DAMAGES- PERSONAL INJURY
Fractured Sacrum and exacerbation of existing non-symptomatic arthritic degeneration - 52 year old female picture framer unable to continue doing the manual work involved in picture framing.
Non economic loss $35,000 past and $25,000 future - economic loss $46,971.00 past - loss of future earning capacity $25,000. Total assessment $176,827.33.
Cole v Ellis (1993) 60 SASR 481, considered.

BUNNING v HURLEY'S ARKABA HOTEL
[2008] SADC 175

Marianne Bunning hurt her back when she fell to the floor in the gaming room at the Arkaba Hotel. She says an employee of the hotel pulled her stool from behind her as she was collecting her winnings from a poker machine. She suffered an injury to her spine which has caused her such pain that she became unable to continue her work as a picture framer. She claims damages.
Arkaba denies that it is liable to pay damages. It denies that its employee was in any way responsible for Ms Bunning’s fall. While the hotel accepts that Ms Bunning fell and injured herself, it claims that she is lying about how she fell. Further, Arkaba says that, even if its employee is responsible for the fall, Ms Bunning has grossly exaggerated her claim. In short, Arkaba asserts that the claim is fraudulent, that Ms Bunning is a liar.
The claim is not fraudulent and Ms Bunning is not a liar. She is entitled to damages. I shall give my reasons for reaching those conclusions and I shall then assess damages.
The Gaming Room
The Arkaba Hotel’s gaming room has a number of poker machines. In front of each of them is a stool. The stools have backs to them and are heavy. They are not easy to move.
The machines are coin operated. Coins inserted by customers fall into a collection box, called a “drop box”, at the bottom front of the machine, almost at floor level. Staff empty the boxes each night after the gaming room has closed. On Saturday it closes at 2.00 a.m. At that time, the poker machines are turned off by a remote control switch. Customers must leave and the doors are locked. Staff then pull back the stools to open the doors in front of the drop boxes so that the money can be removed and counted. Sometimes, staff prepare to close ahead of schedule by pulling stools back from the machines before 2.00 a.m.
Ms Bunning’s fall
Ms Bunning was visiting Adelaide from Melbourne on the long weekend in June 2002. She was here to sell her picture frames at a craft fair. On the evening of Friday 7^th June, she dined with a friend and then went, alone, to the gaming room at the Arkaba. She had had no alcohol at dinner and drank none while at the Arkaba. By 2.00 a.m. she was the only customer left. She noticed that stools at other machines had already been pulled back. Immediately before 2.00 a.m., she played her last turn and won a “free spin”, a feature of the machine which gives the chance of a big win. The feature involves about 25 operations of the machine. After each of them, the machine tells the player if she has won. The free spin takes 7 to 10 minutes to play out.
Ms Bunning won her free spin just before 2.00 a.m. Staff locked the doors, but Ms Bunning remained on her stool watching the spin play out. When it had done so, it showed that she had won more than $100. Because it was, for her, a big win, Ms Bunning did not know whether the machine would eject her winnings into the collection tray or whether she had to take a chit to the cashier. She remembers asking a staff member, Ms Wilde. Ms Wilde told her the machine would pay out. According to Ms Bunning, Ms Wilde pressed the “collect” button for her and dollar coins began to drop into a tray at the front of the machine and towards the bottom of it. They tray is as wide as the machine and the coins which fall into it are spread across the whole of its width. Ms Bunning was in a hurry: she knew that the gaming room was closed, that she was the only remaining customer and that she was keeping the staff waiting. Still sitting on the stool, she bent forwards and downwards to collect the coins into the paper cup provided for that purpose. But it was difficult to do so from her sitting position. She stood up and bent down between the stool and the machine and tried retrieving the coins that way. She found that even more awkward. She went to sit back on the stool. Ms Bunning is fairly short and she had to lift herself on the balls of her feet to sit on the stool. As she went to sit, she realised that the stool was no longer where it had been. She fell. Ms Wilde and a barman hurried to her aid. They helped her up and collected her winnings for her. Ms Bunning left the hotel.
Ms Wilde gave evidence. She was a most impressive witness, plainly honest and quite frank about having a very patchy memory of the incident. While she remembered an occasion when a woman had fallen in the gaming room, she had no reason at the time to recall the details. She was not asked about the incident for three years. I am not surprised that she has a poor memory of it.
Ms Wilde had been on duty in the gaming room. She agreed that it was a fairly regular practice for staff to pull stools from the front of the machines before 2 a.m. in preparation for closing. Initially, Ms Wilde said that she had pulled back the stool upon which Ms Bunning had been sitting. She said that, when she did so, Ms Bunning was not near the stool and was nowhere to be seen. Ms Wilde assumed that she had gone up to the cashier or, perhaps, to the lavatory. Ms Wilde said that she was not close to the machine at which Ms Bunning had been playing when she heard Ms Bunning’s cry, turned to see that she had fallen and went to assist her. In cross-examination, Ms Wilde’s memory was jogged. When it was suggested to her that Ms Bunning had asked her whether the machine would deliver the coins or whether she should go up to the cashier with a chit, Ms Wilde said “that rings a bell”. She also agreed in cross-examination that she was probably speaking to Ms Bunning immediately before the free spin. The machine makes a distinctive sound when a customer wins a free spin and Ms Wilde said it was her practice to go over and congratulate the customer. She agreed that she may well have pressed the “collect” button for Ms Bunning.
I have considered both versions of the incident very carefully and have come to the conclusion that Ms Wilde moved the chair back from behind Ms Bunning when Ms Bunning was trying to retrieve her winnings while standing between the stool and the machine. I have come to that conclusion for a number of reasons.
Ms Wilde’s evidence was that Ms Bunning left the machine while the free spin was playing out. I do not accept that she would have done so. A player who had won a free spin would remain at the machine while it played out to see what she had won. Further, Ms Wilde’s account of what happened would mean that Ms Bunning, on returning to the machine, could not have noticed that the stool had been moved back – and well back – and that she went to sit on it as though it were still in its original position. I cannot accept that scenario. Had she left the machine, Ms Bunning would have known exactly where the stool was when she returned to it.
I find that Ms Wilde moved the chair back some little distance from behind Ms Bunning when Ms Bunning was attempting to collect her winnings while standing. Ms Wilde agreed that it was an awkward position to be in when retrieving the coins. The most likely scenario is that Ms Wilde, to assist Ms Bunning and to make it more comfortable for her to get to the coin delivery tray, pulled the chair back, probably thinking that Ms Bunning would not sit down again after she had retrieved her coins. Defence counsel objected that I could come to this conclusion on the basis that such a scenario had not been put to Ms Wilde. It is true that it was not put to her. It seems to me that both Ms Wilde and Ms Bunning have always assumed that the stool had been moved only once and into a position sufficiently far back for the door to the drop box to be opened. I do not think that is correct. In my view, Ms Wilde’s moving the chair was not in preparation for closing. It was to make it more comfortable for Ms Bunning to get to the tray. There was no evidence about the position of the stool immediately after Ms Bunning’s fall. It does not matter that the precise scenario which I have outlined was not put to Ms Wilde. All that matters is that the stool was moved from behind her without Ms Bunning’s knowledge. I find that to have happened. When she went to sit back on it, she reasonably assumed that it was there when it was not.
There is no dispute that the hotel owed a duty of care to its customers in the gaming room and there can be no doubt that Ms Wilde breached that duty, albeit unwittingly, when she moved the chair without Ms Bunning’s knowledge. The hotel is wholly liable for the accident. There is no dispute that Ms Bunning suffered injuries. She is entitled to damages. There has been no suggestion that she was contributorily negligent. That is understandable given the weight of the stools and the difficulty in moving them.
Picture Framing
Before turning to Ms Bunning’s injuries I say something about her work up to the time of the accident.
For many years before her fall, Ms Bunning had earned her living by making picture frames and selling them at craft markets or fairs. Picture frames are made from timber or resin. Ms Bunning used to buy lengths of timber and resin which she would cut with a foot-operated guillotine. Each frame needed many cuts. The cut lengths then have to be joined with a foot-operated stapling machine. To frame prints, Ms Bunning also had to cut glass which came to her in large sheets and were difficult to handle. She had to stand and bend to use the guillotine and the stapling machine and to cut the glass. Before she fell she usually made 45 to 50 frames each week. She bought prints and sold the framed prints at craft markets. At those markets she operated from a stall which she had to supply and erect herself. That was hard work. She had to unpack the stall from her van and assemble it. She then had to unpack a large number of framed prints from her van and display them. She wrapped items which she sold. At the end of the market she had to repack unsold goods and the display stand and disassemble the stall and pack it into her van. Because the markets began at 9 a.m., she had to be up early and to have the stall set up by opening time. The markets closed at about 2 p.m. Market days were busy and involved quite a deal of physical work for her.
At the time of her fall, Ms Bunning was doing the work which I have just described but was also branching out into a new venture. With three others, she had bought a business called ‘Brighton Picture Framing’, a retail business which sold prints. Ms Bunning was to work in the business about two days each week. While that work did not include making frames, it did involve some fairly heavy manual work especially taking frames down from high shelves. Her work at Brighton Picture Framing did not take over from Ms Bunning’s manufacturing business. She continued to do that work from a shed at her house. The retail business was not successful and Ms Bunning left it in unhappy circumstances. I shall come back to that.
The Injuries
I go back now to Ms Bunning’s injury, and its consequences for her. I accept her evidence on these topics and shall say later why I do so.
Ms Bunning was shocked by her fall. She was also embarrassed, first, because she had fallen and, secondly, because she further delayed the staff. After she left the hotel she walked to her van which was parked across the road. She had difficulty getting into the van because she had pain in her back and legs. She drove the short distance to the motel where she was staying with a friend. Ms Bunning had a hot shower and took a hot water bottle to bed with her. She was still sore in the morning but had to go to the craft market.
The market was at the Wayville Showgrounds. Luckily, she did not have to unpack her van and set up the stall on the Saturday morning. She had done that the day before. On the Saturday, she drove to Wayville, stopping on the way at the Arkaba to report the incident.
Ms Bunning had a very uncomfortable weekend manning her stall. She was in pain and sat whenever she could. Customers had to help her wrap larger items and she needed a lot of help to pack her van when the market finished late on the Monday afternoon. She left Adelaide the next morning to drive back to Melbourne. The trip, which usually took her eight hours, took eleven hours because she had to stop a number of times to rest.
On Wednesday, in Melbourne, she saw her general practitioner, Dr Baig. Ms Bunning was complaining of back pain which was worse on standing and walking. Dr Baig ordered x-rays. They showed a fractured sacrum. Ms Bunning’s symptoms were consistent with the fall and the fracture. Dr Baig thought the fracture would heal in eight to ten weeks. She prescribed analgesics and rest.
During the healing period which followed, Ms Bunning made no picture frames but she still had to earn income. For the first couple of weeks she did nothing but after that time she went to some fairs to sell her stock. She was not allowed to drive. One or other of her two daughters drove her to weekend fairs, set up her stall and dismantled it for her at the end of the trading. She paid them for their work. The pain lessened during this period but did not resolve. Ms Bunning continued to have pain in her lower back, down her left leg and into her foot. Mrs Bunning continued to suffer pain in the years after the fall. The pain was aggravated by her using the foot-operated equipment in her business.
Not long after the fall, in the second half of 2002, she first consulted a physiotherapist. She continued to see her general practitioner and was prescribed various drugs. She saw an orthopaedic surgeon, Dr Speck, who found no neurological cause for her injury and recommended no surgical treatment. Eventually the pain in her back and legs extended to her feet. She saw a foot surgeon and, eventually, another orthopaedic surgeon, Dr De la Harpe. Dr De le Harpe saw that she had a cyst in a facet joint in her lower back. He first treated it with a steroid injection, a procedure which gave some, but only temporary, relief. In December 2005, he removed the cyst by decompressive surgery. Again, there was an improvement but, by the middle of 2006, Ms Bunning was again having significant pain. Dr De la Harpe operated again in February 2007. He performed a revised laminectomy. Ms Bunning recovered well from the operation but has continued to suffer pain owing to arthritic changes in her facet joint. The pain restricts her activities as a picture framer. In Dr De la Harpe’s opinion, she is unsuited to manual work. I accept Dr De la Harpe’s opinion. I find that the pain Ms Bunning has suffered and her consequent inability to do the manual work involved in making picture frames were caused by the injury received in the fall at the Arkaba. I find that, while Ms Bunning may have had arthritic change in her spine before the fall, she had been symptom-free. I find that her symptoms have been caused by the fall. I find that, but for the fall, she would probably have remained symptom-free. It is up to the defendant to prove otherwise and it has not done so.(1)
(1) Watts v Rake (1960) 108 CLR 158 at 160
Credibility
Before turning to damages, I explain why I reject the defence submission that Ms Bunning is a liar. I reject it, first, because Ms Bunning’s account of her fall is the only one that makes sense. I have already dealt with that. Secondly, the medical evidence is uncontroversial. Ms Bunning’s injury is consistent with her account of her fall and there is no suggestion that her past and ongoing symptoms are not consistent with her injury. Thirdly, I do not accept that some of her evidence shows her to be a liar. I shall point out some of the evidence on which defence counsel relied. But first, a word about Ms Bunning in the witness box.
Ms Bunning struck me as a shrewd, even calculating woman. Some aspects of her evidence put me on my guard; for example, her differing accounts of the type of vehicle she owned at the time of her injury. That evidence, in itself, was unimportant but it troubled me for awhile. I thought that it showed Ms Bunning in rather a bad light. I think Mr Coppola, defence counsel, was quite right when he submitted that she is a woman who likes to be in control. When she felt she was not in control, she tried to steal a march on counsel. That attitude eventually caused her some embarrassment. She was too wary of not presenting her claim in its best light. If she thought that one of her answers might ultimately be damaging, she tried to explain it. That attitude has made my task more difficult but I have come to the conclusion that she is reliable.
Mr Coppola emphasised a number of matters which he said reflected very badly on Ms Bunning’s credit. I go to some of them.
Ms Bunning swore that she had no choice but to go on working as a picture framer because that was her only source of income. That answer was not strictly true. She had for some years received small amounts of money from a trust fund established by her father and she had also received some income when she was working as a partner in Brighton Picture Framers. She also failed to tell me, until pressed in cross-examination, that, over the years since her fall, she has received payments from an income protection insurance policy which she held with Wesfarmers. She is still receiving money from that source.
In early 2003 she had an operation on her hand which prevented her from working for some weeks. She told me that she was unable to remember the date of the operation.
Mr Coppola pointed to an unexplained gap in the records of her income between 2002 and 2005.
I have considered all of those matters carefully. Upon reflection, none of them causes me to doubt Mr Bunning’s reliability. The payments from Wesfarmers, as is agreed, are irrelevant to her claim. She had been advised by her solicitors that they were irrelevant and it is understandable that she would not mention them. I note, lest there be any suggestion to the contrary, that the evidence does not suggest that she was not being honest in her dealings with Wesfarmers. Very early in the piece she told them that she was pursuing a claim in respect of her fall.
The Brighton Picture Framing business was, as far as Ms Bunning was concerned, a failure. It is true that, during a period of some three years, she received a total of $20,000 from that business. I think she was simply mistaken about saying that she had no other income and, in doing so, overlooking what she had been paid by Brighton Picture Framers Pty Ltd. After all, she discovered her tax returns which quite clearly show those payments.

The amounts received from the family trust are not especially significant. Again, I think that she viewed her claim as one for loss of income from her framing business and, taken in the context of the amounts received both from Brighton Picture Framers and from the family trust, she was perfectly entitled to say that she had to go on working as a picture framer because it was her only source of income. She could not have survived on the other amounts.
I do not place any weight upon her failing to remember correctly the date of the operation on her hand. That, too, was a matter irrelevant to her claim. She was under natural pressure in the witness box and one can be forgetful of such matters.
The apparent gap in the records of her business between 2002 and 2005 does not cause me any difficulty. Indeed, I am not quite sure that I understand the submission. Tax records have been produced and there is no dispute about them. For reasons to which I shall come shortly, I have not found them especially helpful. There is nothing sinister in her records for that period, or lack of them.
Mr Coppola also attacked the basis on which she claims the cost of labour that she had to outsource. I shall have to refer to the cost of her outsourcing when assessing damages. Here, I need only say that Mr Coppola maintained that her books do not accurately reflect the figures of 40% and 90% of invoice totals which, Ms Bunning said, constitute charges for labour. There is a paucity of evidence about the way those amounts were agreed. She says that it is simply an agreement with the relevant suppliers of labour. Given her explanations about the work that those suppliers did for her and the nature of the business as a whole, I see no reason not to accept at face value what she has told me about that. I do so.
I heard evidence from one Wendy McGinnes. Ms McGinnes was formerly one of Ms Bunning’s partners in the business of Brighton Picture Framing. There is no dispute that Ms McGinnes and Ms Bunning had a bitter falling out at the time when Ms Bunning was leaving the business. Legal proceedings were issued but the dispute between the partners was eventually resolved. Ms McGinnes gave evidence on two topics. First, she said that Ms Bunning asked her to create false invoices to support Ms Bunning’s claim in these proceedings. Ms Bunning denied that she had done so. Mr Coppola made the point that Ms McGinnes must be telling the truth. Otherwise, he said, the only explanation for her knowing the nature of Ms Bunning’s claim is that she had “divined” it. I do not accept that submission. Ms Bunning worked with Ms McGinnes for a long time during the period when this claim was on foot. It is perfectly possible that Ms McGinnes knew exactly from discussions with or in the presence of Ms Bunning the nature of the claim. And there is no doubt that there is great animosity between the two women. I reject Ms McGinnes’s evidence on this topic.
I also heard evidence about a blond-wood cabinet. It was completely unhelpful to me. There was a dispute between the partners about the ownership of a cabinet which was at the business premises at the time of the dissolution of the partnership. When Ms McGinnes made enquiries about the whereabouts of the cabinet, Ms Bunning lied to her. There is no doubt that Ms Bunning lied. There is no suggestion that she did so for financial gain. In my view, that admitted lie does not reflect adversely in any way on Ms Bunning’s credibility in these proceedings.
I repeat. Some of those matters troubled me. But in the context of the whole case, given the evidence about what happened at the Arkaba, the uncontroversial medical evidence and the consistency about symptoms to which I have referred and the characters traits of Ms Bunning to which I have also adverted, I accept her evidence.
Damages
Ms Bunning’s damages are to be assessed at common law.
Mrs Bunning told me that the pain and disability she has suffered since the fall have affected her life in a number of ways both financially and otherwise. I shall return to the financial consequences of her injury and deal first with her pain and suffering since the fall.
Non Economic Loss
Ms Bunning was nearly 53 at the time of her fall on the 8^th of June 2002. She is now 59. She was married for some 17 years but she and her former husband eventually separated and divorced. Ms Bunning has two adult daughters, now about 27 and 25. They remained with her after her separation from her husband. She was responsible for bringing them up. She earned enough from her work as a picture framer to support her and them.
Until June 2002 Ms Bunning had been a busy, fit and active woman, enjoying her life to the full. She ran the household, enjoyed sport and attended a gym. She cycled and regularly walked her dog. She enjoyed camping. All that has changed.
Before the fall, she had not suffered any pain in her back, legs or feet. Nor had she had any trouble with bladder control. She has had two operations. She continues to have pain going from her back down her left side and into her left leg. She has sharp pain in the front of her feet when she gets up in the morning. It is a stabbing pain which affects her walk. The pain subsides after she has walked round for a little but recurs if she stands for too long or walks any significant distance. She has also suffered a loss of bladder control. For twelve weeks or so, her bladder control was so poor that she could only leave the house for about 10 minutes. That condition has improved but has not cleared up completely. Lifting aggravates it. Her bladder problem affects her sleeping. Before the accident, she had no trouble sleeping but now wakes needing to relieve herself. She is unable to exercise as she used to. She says that she has anxiety attacks and feels depressed at times. Although Ms Bunning called no medical evidence about depression, I accept her evidence that she often feels “down” and I find that she does so as a result of the change to her life caused by her injury. Her former business partner, Karen Saunders, confirmed Ms Bunning’s evidence on this topic.
There is nothing further that her doctors can do to relieve her symptoms. I find that Ms Bunning will continue to suffer pain and discomfort and be restricted in her activities. But, of course, many of her physical activities would have been curtailed with age and I take that into account in assessing her future loss of amenity.
I assess her non-economic loss at $60,000.00. I divide that into $35,000.00 for past pain and suffering and $25,000.00 for future pain and suffering.
Interest is payable at 4% per annum over half the period since the accident. The calculation is therefore $35,000 x 4% x 3∙25 years, i.e., $4,500.00.
Special Damages
Special damages have been agreed at $31,146.95. I have assumed that amount includes interest to trial.
Past Economic Loss
Ms Bunning is entitled to damages for her past economic loss and her future loss of earning capacity.
By early 2005, Ms Bunning was unable to do the manual work involved in manufacturing picture frames. She began outsourcing the work to two suppliers of both labour and materials: Champtons Pty Ltd and Bottomleys. She told me that she agreed with each of those suppliers that a certain amount of each invoice from them would represent their labour component. That is, that amount was what each of those suppliers charged her for the labour done by them which, but for her injury, Ms Bunning would have done herself. Accordingly, 40% of the amount she paid to Champtons and 90% of the amount she paid to Bottomleys was the cost to her of labour formerly done by her. I accept her evidence about these labour costs. Ms Bunning tendered a schedule of invoices showing such labour costs in the period from March 2005 to trial in the case of Champtons and from December 2005 to trial in the case of Bottomleys. In those periods she paid a total of $33,041.09 for labour she would have otherwise done herself. That is an average of $210 per week. Mr Hanus, her counsel, suggested that that amount represents her economic loss from injury to the date of trial. He relies on the decision of Mullighan J in Cole v Ellis (1993) 60 SASR 481. In my view, subject to adjustment for tax, that is an appropriate way to assess past economic loss from 2005 to trial. That is, the correct measure of the damages is the total cost of outsourcing the labour component of her framing business. Mr Hanus argued that it is also an appropriate basis upon which to assess her economic loss between her fall and 2005. He says that her income tax returns and profit and loss statements from the business more or less reflect a similar loss for that earlier period. I do not accept that that is so. The amount of gross sales diminished after the accident but net profit did not do so in all years. I doubt that the income tax returns and profit and loss statement accurately reflect the position of the business in those years. But the figure of $210 per week still provides a rough guide of measurement of loss. It does so in this way. Ms Bunning said that she was unable, owing to pain, to continue to work at the rate at which she worked before her fall. Instead of making 45-50 frames each week, she made about 20. I accept that. While she employed someone to help her, at least for some of the period, it is plain that she could not have earned as much as she did beforehand although she was still able to do some manual work. She could manufacture frames but not as many. Unfortunately, I have not found her financial records helpful in this regard. But I find that she suffered some fairly significant loss of earning capacity and I find that that loss increased as time went on in that period. In those circumstances, I cannot be arithmetically precise. I think a fair amount for her average loss during that period is $120 per week. I do not include a period of 12 weeks when she was unable to work following surgery to her hand.
Therefore, the calculation for Ms Bunning’s economic loss between June 2002 and March 2005 is 142 weeks at $120 per week, that is, $17,040.00. The calculation for the period March 2005 to December 2008 is 182 weeks at $210.00 per week, that is, $38,220.00. Her total economic loss for the period prior to trial is, then, $55,260.00. That figure must be adjusted to take into account the tax that she would have paid.
I have examined Ms Bunning’s tax returns for the years 1997 to 2007. During that period her average annual tax rate was 13.5%. But during various periods since her accident, she was in receipt of income protection payments from Wesfarmers. She has not declared them as income. Had she done so, her tax rate would have been somewhat higher. I have no way of knowing what tax she would have paid and what the actual tax rate would have been. In those circumstances, doing the best I can, I estimate her tax rate at 15%. I reduce the amount of $55,260.00 by 15% leaving a net past economic loss of $46,971.00.
Ms Bunning is entitled to interest at the rate of 6.5% over half of the period since the accident to judgment. That calculation is therefore $46,971 by 6.5% by 3.25 years, that is, $9,159.38.
I turn to her future loss of earning capacity. I remind myself that I am to compensate Ms Bunning not for future economic loss but for future loss of earning capacity.
Ms Bunning told me that she plans on working for quite some time. She has changed her working routine so that she attends more country and interstate markets and fewer metropolitan markets. The country and interstate markets run for longer periods and she is able to set up her stall in a more leisurely way. Although she has to travel further and is away for longer periods, she finds it easier to attend those markets.
For as long as she continues to work, she will go on paying her suppliers, Champtoms and Bottomleys, for labour that, but for her injury she would have done herself. Mr Hanus suggested that I could assess her future loss of earning capacity by reference to actuarial tables. He submitted that the relevant multiplier for a woman who is going to work until 65 years without any diminution in her capacity to work is my starting point. I have used a 5% interest rate and prospective mortality tables(2) . Mrs Bunning is now 59. The multiplier is 267∙10. Mr Hanus submitted that I should simply multiply that figure by $210 giving a figure of $56,091.00. That, he says, would be her future loss of earning capacity. But that is a gross figure and I must award a net figure under this head of damages. Further, various contingencies, both positive and negative must be taken into account. In those circumstances I do not find Mr Hanus’s suggested actuarial calculation very helpful. It is barely the roughest of guides.
(2) Queen Elizabeth Hospital v Curtis [2008] SASC 344 (9 December 2008)
I deal first with the tax adjustment. I had very little help with this but, doing the best I can, I think that I should discount any award under this head by 15% to take account of tax liability.
I must allow for contingencies in assessing an amount for loss of future earning capacity. Ms Bunning currently has the capacity to continue her work. She may work as much as she now does until she is 65 but I very much doubt it. She is working in a cottage industry which requires her to travel regularly. I think it is likely, as she grows older that Ms Bunning will be less inclined to travel as much as she now does. And, as in the case of most of us, her energy will flag. I must also allow for the possibility that some other impairment may prevent from working at all or to a lesser extent than she now does. She has, after all, been prevented from working in the past by an operation to her hand. Taking all of those contingencies into account, and being mindful of fixing a net figure, I assess her future loss of earning capacity at $25,000.00.
Summary of Heads of Damages

Pain and Suffering
  Past

  Future

35,000.00

25,000.00

Past Economic Loss

46,971.00

Future Loss of Earning Capacity

25,000.00

Special Damages

31,146.95

Interest
  Past Pain and Suffering

  Past Economic Loss

    4,550.00

    9,159.38

TOTAL

$176,827.33

There will be judgment for the plaintiff for $176,827.33.

Pain and Suffering Past Future	35,000.00 25,000.00
Past Economic Loss	46,971.00
Future Loss of Earning Capacity	25,000.00
Special Damages	31,146.95
Interest Past Pain and Suffering Past Economic Loss	4,550.00 9,159.38
TOTAL	$176,827.33