Davis v WAKEFIELD - [2020] SADC 50

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
DAVIS v WAKEFIELD
[2020] SADC 50
Ruling and Judgment of Her Honour Judge Deuter
6 May 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - TRIAL - EXPEDITED TRIAL
DAMAGES
Personal Injuries - Assessment of Damages - Declaratory Judgment - District Court Act s 38
Plaintiff injured in a motor vehicle accident on 26 August 2018, and is unable to return to work. Liability not in dispute.
Plaintiff's injuries will not be stable for up to two years. He claims dire financial circumstances, and seeks an order for an early hearing to provide a declaratory judgment and determine an interim award of damages.
Consideration of s 38 of the District Court Act 1991 (SA) and Rule 119(1) of the District Court Civil Rules 2006 (SA); and the factors to be considered in deciding whether an early trial should be given for a declaratory judgment and an interim assessment of damages.
Held: in the circumstances of this matter the action to be listed for an early trial for a declaratory judgment and an interim assessment of damages.
District Court Act 1991 (SA) s 38(1); Civil Liability Act 1936 (SA); Supreme Court Act 1935 s 38; District Court Civil Rules 2006 (sa) Rule 119(1); Compulsory Third Party Insurance Regulation Act 2016 (SA) Clause 16, 16.1.3; Civil Liability Act 2013 (SA); Civil Liability Regulations 2013 (SA) Reg 4(2), referred to.
Bellas v Kipouros (1974) 8 SASR 418; Nathan and James v Vos [1970] SASR 455; Ikonomos v Lesiuk (1973) 6 SASR 111; McRae v SA Telecasters Ltd (1974) 8 SASR 454; SA Water Corporation v United Water International Pty Ltd [2009] SASC 383; Abigroup Contractors Pty Ltd v Hardesty and Hanover International LLC [2008] SASC 244, applied.

DAVIS v WAKEFIELD
[2020] SADC 50
The application

This is an application by the Plaintiff seeking the following orders:
1That pursuant to rule 119(1) of the District Court Civil Rules 2006 (SA) that this application be determined urgently.
2That pursuant to section 38 (1) of the District Court Act 1991 (SA) this Honourable Court provide a declaratory judgment that the Defendant is liable for the Plaintiff’s injuries sustained in a motor vehicle accident occurring on 26 August 2018;
3That this matter be listed for a hearing to determine an interim award of damages for the Plaintiff pursuant to section 38 of the District Court Act 1991 (SA) at the earliest available date convenient to the court;
4The Plaintiff have his costs of and incidental to this application and his costs of interim assessment of damages;
5Such further and alternative orders as this Honourable Court thinks fit.
The application was first filed by the plaintiff on 22 August 2019, seeking an urgent hearing for an assessment of an interim award of damages. After initial argument, and agreement regarding future conduct, including payment by the defendant of an interim payment on account of damages, the plaintiff filed a second application on 27 March 2020, seeking the orders set out above. The application is opposed by the defendant.
Summary of the proceedings
The plaintiff commenced proceedings in this Court on 3 April 2019. In his Statement of Claim he pleads that he is seeking damages in negligence for personal injury sustained in a motor vehicle accident on 26 August 2018. The plaintiff states that he was born on 26 August 1977, and that the motor vehicle accident was a rear end collision as he was slowing to turn into his driveway. Negligence is pleaded against the defendant in his manner of driving.
The plaintiff pleads that as a result of the defendant’s negligence, and the accident he suffered multiple injuries, including:
1.injury to his lower back;
2.bruising and swelling to his lower back;
3.injury to his middle back;
4.injury to his upper back;
5.injury to his left shoulder and left upper quadrant;
6.injury to his neck;
7.injury to his left upper arm;
8.injury to his left hip;
9.pain to the buttock and into the left lower limb;
10.shock;
11.headaches;
12.sleep disturbance; and
13.mental injuries.
As a result of these injuries, the plaintiff alleges that he continues to suffer from pain, discomfort and restrictions in the parts of his body that were injured, and that this has impacted, and continues to impact, his day-to-day life including his earning capacity. It is alleged that the plaintiff has lost income due to not being able to work since the accident, and that he has incurred costs for medical treatment.
The plaintiff’s accident occurred after amendments to the Civil Liability Act 1936 (SA), that came into operation on 1 July 2013, and which changed the way damages are to be assessed for persons injured in motor vehicle accidents. Those changes included introducing thresholds that must be met before a plaintiff can be awarded damages, and percentage reductions on some heads of damage.
By his defence filed on 14 May 2019 the defendant admits the circumstances of the accident and admits that it was caused by his negligence. The matter now proceeds as an assessment of damages. In relation to that assessment the defendant puts the plaintiff to proof in relation to his injuries and raises questions of causation relative to injuries suffered by the plaintiff prior to the motor vehicle accident and their impact upon his functioning.
Interim assessments of Damages
The power of the Court to grant a declaratory judgment and to make an interim assessment of damages is a statutory one found at s 38 of the District Court Act 1991. Section 38 is modelled on s 30b of the Supreme Court Act 1935. Section 38 provides as follows:
Interim awards of damages:
(1) In an action for damages, the Court may give a declaratory judgment finally determining the question of liability between the parties, but leaving the quantum of damages to be determined subsequently.
(2) The Court may, at the time of giving declaratory judgment or subsequently, order the defendant—
(a)     to make such interim payments as the Court thinks fit on account of the damages that are yet to be finally assessed (but such payments should not include any allowance for non-economic loss unless the Court is satisfied that there is good reason for including such an allowance);
(b)     to give such security as the Court thinks fit for the payment of damages yet to be assessed.
(3) If—
(a)     declaratory judgment is given in a case of personal injury; and
(b)     the injured person is incapacitated (wholly or partially) for employment; and
(c)     it appears to the Court that the injured person is not making adequate efforts towards rehabilitation for employment, a component of an interim payment attributable to loss of earnings must not exceed 75% of the loss of earnings over the period to which the interim payment relates.
(4) A party to an action in which declaratory judgment has been given may at any time apply to the Court for a final assessment of damages.
(5) If an application is made under subsection (4) and—
(a)     the action arises from personal injury and the medical condition of the injured person appears to have stabilised; or
(b)     four years or more have elapsed since the date of the declaratory judgment,
the application should not be refused except in exceptional circumstances.
The criteria to be considered when granting an application for an interim assessment was considered by Wells J, in relation to the Supreme Court procedure in s 30b of the Supreme Court Act, upon which the District Court Act provisions were modelled.[1] He determined that in considering an application for an interim assessment of damages neither the plaintiff nor the defendant were under an onus to persuade the court to invoke or not invoke the relevant section. He found that the language of the section was at large and stated:
…I deem it to be my duty in every case to apply it (the section) and to weigh the whole of the circumstances and in the light of the manifest purpose of the sub-section to ask myself whether a declaratory judgment should be made or not…[2]
[1] Ikonomos v Lesiuk (1973) 6 SASR 111.
[2] Ibid at p112.
That interpretation of s 30b of the Supreme Court Act is one that provides a wide judicial discretion to the judge hearing an application. In considering that discretion Wells J adopted the views expressed by Bray CJ, in Nathan and James v Vos where he stated[3]:
The first question is whether this is a case for a declaratory judgment at all, as opposed to a final assessment. As it seems to me a declaratory judgment has advantages to both parties and will enable the court to do more precise justice. The plaintiff will know that, if and when the anticipated evil occurs, he will receive proper compensation for it in accordance with the values of money at the time. The defendant in the meantime will have the use of his money and if what he feared does not come to pass he will not have to part with it at all. The court will not have to estimate the chances of the support or the fusion operation becoming necessary, or the amount of the resultant medical and hospital expenses, or the extent and the effect of the resulting disability. I think that this is a proper case for a declaratory judgment, though I realise that perhaps the more usual case for the application of s 30b is a case where there is a severe present disability but its duration and effect are uncertain, rather than a case of contingent disability in the future.
[3] [1970] SASR 455, at p 466.
Wells J went on to say that in considering its s 30b he was of the opinion that the section had two objects, one to enable an early assessment of liability and the second:
… to do more precise justice on questions of damages - and I add that in saying that its aim is to do more precise justice, that does not necessarily mean to inflate the damages recovered by the plaintiff - it may have precisely the opposite effect.[4]
[4] Ikonomos v Lesiuk (1971) SASR 111, at p 113.
Taking those matters into account Wells J, set out criteria that he considered should be borne in mind when considering applications for declaratory judgment and an interim assessment of damages, although he did note that these were not exhaustive:[5]
[5] Ibid at p 114.
(1)the nature and extent of the plaintiff’s injuries.
(2) the medical prognosis and in particular whether it is given confidently or with reservations or misgivings.
(3)the seriousness of any possible developments in the injuries or incapacity sustained by the plaintiff and the chances that those developments will ensue.
(4) the extent to which any deterioration or exacerbation may call for further treatment and the certainty and possible expense of that treatment.
(5) the possibilities of improvement in the plaintiff’s condition and the extent to which any such improvement will depend on the plaintiff’s efforts at rehabilitation or her undergoing remedial treatment.
(6) the age, health, family and community background of the plaintiff and the degree to which any incapacity, present and future may affect her life both within and without the community, and within and without her employment.
(7) the period over which changes in the plaintiff’s condition are likely to occur.
(8) the stability or instability of the plaintiff’s condition at present.
The plaintiff’s application also seeks that it be determined urgently pursuant to Rule 119(1) of the District Court Civil Rules 2006. Rule 119(1) provides:
The court may, on its own initiative or on application by a party, make an order for the urgent determination of a proceeding, or an issue in a proceeding.
In argument before me, both parties proceeded upon the basis that the plaintiff was seeking an order to have a trial listed urgently to determine liability and an interim assessment of damages. As set out below, the plaintiff’s application is brought on the basis of his dire financial situation due to being unable to work since the accident.
In considering whether an urgent trial should be listed to determine whether an interim assessment of damages should be made, I take account of the comments of Bright J, when considering an earlier procedure under Order 10 of the 1947 rules. He stated:
At the present time in this Court we are troubled by the difficulty, if not impossibility, of keeping the lists of cases waiting trial reasonably short. Parties have perforce to wait for many months after a case has been set down before they can get a hearing. Nothing but discontent would be caused by allowing a few plaintiffs for no particular reason to “jump the queue”. Indeed, if the Order 10 procedure were held to be an ordinary alternative to the traditional procedure I think that it would not be long before it became extensively used, and this would have the result that applications under Order 10 would take almost as long to come on for hearing as existing actions take now. In other words, ’immediate relief’ would become unavailable.[6]
[6] Bellas v Kipouros (1974) 8 SASR 418.
The comments of Bright J remain applicable today in relation to civil trial lists in this court. Caution must be exercised to ensure that the procedure in Rule 119(1) when combined with s 38, is not used to enable parties to resolve claims by ‘jumping the queue’ by having an initial judicial assessment of the issues in dispute by way of an early trial.
In McRae v SA Telecasters Ltd[7] an application for an expiated trial was considered by Walters J. He adopted the views of Bright J in Bellas v Kipouros, but stated that it was still important to consider
… whether the inconvenience or injury which the plaintiff would be likely to suffer, if his application for a speedy trial were refused, outweighs, or is outweighed by, the inconvenience or injury which other litigants would suffer if his application were granted.
[7] 1974) 8 SASR 454.
Walters J set out other matters to be considered in determining whether an early trial should be granted, including the defendant’s attitude towards the plaintiff’s claim and whether the defendant has made some amends for the injury done to the plaintiff. Other considerations which have been taken into account in determining an application for an early trial on some issues are whether there would be any saving of time and expense if the issues in the matter were split into separate trials, or alternatively whether there would be extra costs in having separate trials on different issues and at different times[8]. Another consideration is unnecessary and costly duplication in having two trials, largely about the same issue, in this case the assessment of the plaintiff’s damages.[9]
[8] SA Water Corporation v United Water International Pty Ltd [2009] SASC 383.
[9] Abigroup Contractors Pty Ltd v Hardesty and Hanover International LLC [2008] SASC 244.
The factual basis of the application
The plaintiff’s application for an interim assessment of damages is centred around his incapacity for work, and the fact that he has not been able to return to work since the accident on 26 August 2018, a period of almost 20 months. In affidavits sworn on 20 August 2019[10] and 31 March 2020 (the plaintiff’s second affidavit)[11] the plaintiff claims dire financial circumstances due to not being able to work, and provides details of his monthly expenses and income.
[10] FDN 7 and Exhibit P1.
[11] FDN 15 and Exhibit P2.
By his Statement of Loss filed in this court on the 17 February 2020[12] the plaintiff attested to the fact that prior to the accident he worked as a truck driver for TRG Transport Pty (TRG) from April 2018. He had previously worked for them for several months in 2015, and thereafter had worked as an NBN contractor and in several other short-term casual contracts. He recorded his income in the financial year ended 30 of June 2016 to be $39,599.00; in the year ended 30 of June 2017 to be $13,282.00 after the payment of business expenses; and in the year ended 30 of June 2018 he earned $35,385.00 in contract work and $11,239.00 from TRG. From 1 July 2018 to 26 August 2018 the plaintiff attests to the fact that he earned approximately $101.98. I pause to note that I do not understand that calculation, as a payslip from TRG for the period from 30 July 2018 to 5 August 2018 records earnings before tax of $1,571.28 for that week of work. In submissions, that was the level of income that the plaintiff’s counsel put that he could be earning if not injured. In his Statement of Loss, the plaintiff calculated that, if not for the accident, between 27 August 2018 and 17 February 2020 he would have earned gross income of $128,660.80 or net income of $88,185.60. Instead the plaintiff has been in receipt of government allowances for a total over that period of $11,869.01.
[12] FDN 12.
In the plaintiff’s second affidavit he confirmed that he has not worked since the accident, and was not in any position to return to work due to his injuries. He attested to the fact that he has almost no money in any of his bank accounts and that he owed some $18,714.91 on credit cards and personal loans. He also has a Child Support liability each month and other living expenses, and has had difficulty paying for his Internet connection and his mobile phone. He has been unable to pay the registration on his motor vehicle and is in the process of trying to sell that. In managing his Centrelink income, the plaintiff says he must balance between paying for his pain medication and paying for food.
In his second affidavit, the plaintiff also attested to the fact that his employment would not have been impacted by the COVID-19 pandemic, as his work as a truck driver was within a skill set that would have made him an essential worker. He sets out how he is motivated to work, and had looked at alternative employment options including studying. As a result, he had enrolled in a Foundation Studies course at the University of South Australia that commenced on 2 March 2020. The plaintiff’s intention was to study full-time and gain entry into a course to study nursing. Those plans were problematic given the plaintiff had not studied for some time and it was not known how his injuries would respond to study and work. There are also costs in relation to study which he will require loans to pay.
The level of the plaintiff’s pre-accident income is in dispute. The defendant points to the plaintiff’s bank statements produced by him for the period from 16 May 2018 to 16 August 2018. These show that the plaintiff received payments from TRG of varying amounts per week, between $679.72 and $1080.27 net of taxation.[13] My review of those bank statements indicates that there was only one payment at around $600.00, and that all other payments from TRG were at least $800 per week, and often between $900 and $1000.00. The plaintiff submitted in argument that on his earnings over this period he would have been earning between $45,000.00 and $50,000.00 net per year, if not injured.
[13]Third affidavit of Zoe Diane Forrester (FDN 16).
The plaintiff’s injuries and his restrictions, while still an issue between the parties, are not currently in serious dispute. I do not intend to assess all the medical evidence for this ruling, as I am not proceeding to an assessment of damages. I have been provided with reports of medical experts and other documents. I have considered these, and it appears accepted that the plaintiff sustained a serious injury to his left shoulder in the accident. He has been under the care of Dr Tran, an Occupational and Environmental Physician, and an Orthopaedic Surgeon, Dr Leonello. He was initially treated conservatively but when his shoulder condition did not improve, he underwent surgery on 7 August 2019 by way of a left shoulder arthroscopy with subacrominal decompression, and long head tenodesis. In a report of 28 January 2020, Dr Leonello reported that the plaintiff’s condition had not stabilised and he anticipated it would be 12 to 18 months (and possibly up to 24 months) before the plaintiff would reach maximum recovery. At January 2020, the plaintiff was still suffering from pain and stiffness in the left shoulder, and if the shoulder did not improve Dr Leonello opined that the plaintiff may require arthroscopic release surgery.

The plaintiff was reviewed by the Orthopaedic Surgeon Dr Jackson on 27 November 2019, on behalf the defendant. In his report Dr Jackson concluded that the plaintiff had sustained a left shoulder injury in the accident, and that he continued to suffer symptoms from what he described, as a failed surgical procedure. At the time of his assessment, Dr Jackson described the plaintiff as suffering from a significant disability in his left shoulder for which he was taking considerable amounts of medication.
In addition to his left shoulder injury the plaintiff also sustained an injury to his lumbar spine which Dr Jackson described as being soft tissue in nature, with some minimal pathology demonstrated on a CT scan. With the combination of his injuries Dr Jackson opined that there was an impact on the plaintiff’s current ability to work, and confirmed that he was not fit to work as a truck driver. Dr Jackson stated that unless there was significant improvement in the plaintiff’s left shoulder it was unlikely that he would ever go back to work as a truck driver, and that he would have permanent restrictions on whatever type of work he returned to. There were concerns raised that the plaintiff may be left with a frozen left shoulder.
The plaintiff has alleged that he also suffered psychiatric injury as a result of the accident. He was assessed by the Psychiatrist Dr Anthony Davis, at the request of the defendant. Dr Davis prepared a report of 6 December 2019, in which he sets out the plaintiff’s ongoing complaints of high levels of pain in his back and shoulder and the quantities of serious pain medications he was taking for that pain. The plaintiff complained that his pain and physical restrictions affected all parts of his life, and had caused considerable frustration and depression. Dr Davis assessed the plaintiff as suffering from a chronic pain syndrome, with contribution from physical and psychological factors. He opined that the plaintiff had also experienced symptoms of a chronic adjustment disorder with mixed emotional features that included anxiety, depression, frustration, anger and some post-traumatic symptoms. He reported that these conditions arose in a man who had enjoyed good physical and mental health for an extended period prior to the accident. He recommended further assertive management of the plaintiff’s chronic pain syndrome by referral to a pain specialist, a clinical psychologist and a physiotherapist with expertise in pain management. He also recommended trials of appropriate medication. Finally, he recommended that the plaintiff pursue a pain management program over a six-month period.
I find on the medical evidence that the plaintiff sustained physical injuries in the motor vehicle accident on 26 August 2018, including an injury to his spine and a serious injury to his left shoulder which has not improved, and may have in fact worsened with surgery. In addition to his physical injuries I accept the evidence of Dr Davis, and find that the plaintiff has suffered a psychological response to his injuries particularly his constant pain, and that his psychological injuries also impact upon his functioning. I find, that the plaintiff is currently not fit to return to work as a truck driver and would struggle to perform any physical work on the open labour market. The medical evidence also supports a finding that as a result of the plaintiff’s slow recovery from his left shoulder surgery he will not be fit to return to work for a period of up to two years. It is in fact uncertain whether he will ever recover to a point where he can return to work as a truck driver. His physical and psychological condition remains unstable approaching two years after the accident. There is no clarity as to when stabilisation is expected.
In considering whether there should be an early trial on the issue of an interim assessment of damages, consideration must be given to other than medical factors. Of importance is the fact that the defendant has provided the plaintiff with several payments by way of interim payments of damages, as follows:
13 December 2018:             $7,202.00
23 May 2019:   $3,270.00
13 October 2019:                $20,000.00
TOTAL:  $30,472.00
In addition, the defendant has paid medical expenses on behalf of the plaintiff, or has reimbursed the plaintiff for amounts paid in a sum approaching $16,000.00. The evidence is that there are no significant amounts outstanding to the plaintiff in relation to medical expenses, and the defendant continues to reimburse the plaintiff for medical treatment including the cost of medication. I accept however that there is some financial stress on the plaintiff in having to pay for medication and treatment up front and then seek re-imbursement.
The defendant submits that in addition to the interim payments, the plaintiff also receives income by way of Centrelink payments. They concede that these are less than his earnings prior to the accident, particularly now that the plaintiff is only in receipt of a Newstart Allowance. However, those payments cannot be disregarded when considering the plaintiff’s out of the ordinary request for his past losses to be assessed now, given his dire financial situation.
The defendant also raises concern in relation to the way the plaintiff applied the interim payment of $20,000.00 which he received on 13 October 2019, being at a time between his two applications for an urgent trial on an interim assessment of damages. In the plaintiff’s second affidavit he attests to the fact that he has now exhausted the whole of that payment. On 14 October 2019, he contributed a lump sum payment of $8,400.00 towards the mortgage on his father’s home, explaining that he did so out of a moral obligation given that he was residing with his father, rent-free. He stated however that his father did not demand that he pay any periodic or fixed sums towards his living expenses. In mid-October 2019, the plaintiff says that he paid his sister the sum of $1,500.00 to repay her for informal and cumulative loans that she had advanced to him since the accident. He also had to pay for motor vehicle repairs.
The defendant argues that, although they concede that any interim payments paid to the plaintiff would eventually be absorbed by his day-to-day living expenses and his treatment, this is not in fact what has occurred with the most recent interim payment. Instead the plaintiff has made a choice to use the funds for discretionary expenditure, where there appeared to be no obligation to repay debts. The defendant submits that in the circumstances of this case, where interim payments of some substance have been made, he should not be put to the expense of being involved in two trials, one for an interim assessment of damages and one for a final assessment of damages, when the plaintiff has not used the monies provided to him for his living and medical expenses.
The defendant also argues that in considering the issue of an urgent trial and an interim assessment of damages, the situation is now different to when the Supreme Court considered the matter under s 30b back in the 1970s. In this matter, the defendant is insured by way of Compulsory Third Party (CTP) insurance. Since 1 July 2016, CTP insurance in South Australia has been managed under the auspices of the CTP Regulator, an independent Statutory Authority established under the Compulsory Third Party Insurance Regulation Act 2016 (SA). The CTP Regulator is responsible for the oversight, monitoring, and reporting of CTP insurer activities in South Australia, and does this pursuant to a set of rules. By paragraph 16 of the CTP Insurance Regulator Rules (CTP Regulator Rules) a process has been put in place which enables interim payments to be made by CTP insurers when a claimant provides evidence of financial hardship and incapacity for work, and when fault has been established in relation to an accident governed by the CTP Scheme. To determine financial hardship there are certain documents which should be provided to the CTP insurer, and the insurer must respond to a request from a claimant for interim payment within seven business days of receipt of the request.[14]
[14] Clause 16 of the CTP Insurance Regulator Rules as at 1 July 2019.
The defendant argues that the ability of an injured plaintiff to obtain interim payments from the CTP insurer was not something available when the Supreme Court was considering the early listing of matters for interim assessments of damages in the cases I have referred to. They also argue that there is nothing stopping the plaintiff from seeking a further interim payment, and in this regard, I note that the two reports from the defendant’s own medical experts support the plaintiff’s claims of loss of work capacity. Those reports were provided at the end of 2019. The defendant argues that it should not be put to the expense of the possibility of two trials when there is a process in place which enables the plaintiff to have some funds leading up to a trial that will determine the final assessment of his damages.
The plaintiff argues that the process of seeking interim payments leaves him at the whim of the insurer to determine whether further payments will be made and at what level. He continues to be in financial distress while being drip fed funds. There is also a lengthy process in collecting data and information every time monies are sought. That information includes medical certificates, letters from employers confirming leave taken or inability to work, particulars of pre-injury and post-injury income and expenditure, outstanding bills, invoices or other requests for payment, and financial records including business activity statements, bank account statements or correspondence with Centrelink.[15]
[15] Clause 16.1.3 of the CTP Insurance Regulator Rules as at 1 July 2019.
The plaintiff submits that pursuant to the CTP Regulator Rules the plaintiff must prove acute financial hardship to the satisfaction of the relevant CTP insurer before that insurer will consider whether an interim payment is just. This means the plaintiff must reach the point of financial hardship before the making of an interim payment will be considered. This is the case even where there is clear previous evidence of injury and incapacity. The plaintiff submits that the decision to pay an interim payment is a subjective one, and there is no recourse to appeal that decision.
In this case where the plaintiff has suffered serious injury and cannot return to his normal work, and will not be able to do so for at least two years, he argues it is more appropriate for him, and fairer for him, to have his damages for past losses in one lump sum to be used as he sees fit, as he would have used his wages. It also alleviates the risk of him being placed into financial distress and hardship before he receives a further payment from the CTP insurer.
The other issue in this matter which makes it different from the earlier decisions is how damages are now to be assessed for injuries sustained in motor vehicle accidents. In relation to many heads of damages including non-economic loss, future economic loss, and for gratuitous and paid services, pursuant to the amendments to the Civil Liability Act 2013 (SA) that came into operation on 1 July 2013 those damages can only be assessed once there has been an Injury Scale Value (ISV) assessment of the plaintiff’s injuries. Damages are only to be awarded under these heads of damage if injuries are assessed to reach a certain ISV threshold. By the Civil Liability Regulations 2013 (SA) an ISV assessment must not be undertaken until the injury in dispute has stabilised, and a medical assessment of the injured person has been undertaken by an accredited health professional and a report provided.[16] There is no ISV threshold for damages for past economic loss and therefore no ISV assessment is required. That means that damages for past economic loss can be as assessed pursuant to common law principles without the injuries having to reach stability. The same applies in relation to any outstanding amounts payable in relation to medical treatment or for other special damages.
[16] Reg 4(2) of Civil Liability Regulations 2013 (SA).
The plaintiff argues that this is another factor that must be considered in determining his application. An extended delay in stabilisation of his injuries, especially his shoulder injury would mean that there will be a delay in obtaining a final ISV assessment of his injuries. There is then a consequential delay in the final assessment of damages or settlement negotiations.
The defendant however argues that the matter can still be determined by a court at trial without an ISV assessment, with the trial judge determining the ISV to be applied to the injuries, and proceeding to assess damages. The interpretation of the provisions of the amended provisions of the Civil Liability Act and the Civil Liability Act Regulations of 2013 have not been judicially ruled on, as to date there has not been a judgement in South Australian courts assessing damages pursuant to those provisions.
Consideration and Reasons
I have considered the criteria set out by Wells J in Ikonomos v Lesiuk. The plaintiff is now 42 years of age. He resides with his father, and at the time of the accident worked as a contract truck driver. I find that he was earning on average, between $800.00 net and $1,000.00 net per week. His wages were used for his day to day living expenses. No evidence of any extra-ordinary expenditure has been put before the court.
I have found that the plaintiff suffered serious injuries in the motor vehicle accident on 26 August 2018 and that the medical prognosis, particularly for his left shoulder and psychological problems, is clear that he will not reach medical stability for at least 18 months to two years. It is not until then that an ISV Report can be obtained, and after that a trial can proceed for final assessment of damages.
I have already made findings in relation to the plaintiff’s lack of capacity for his pre-accident work at the current time and into the future. I have noted the possibility that the plaintiff’s left shoulder may not recover and that he may require further surgery in the future. Any improvement in the left shoulder, will take time and rehabilitation over the next two years. It is not in dispute that the plaintiff was working as a truck driver before the accident, and no evidence has been led that his employment was at risk if he had not been injured.
The defendant submits that the Supreme Court decisions referred to all relate to cases involving what would be described as catastrophic injuries, and usually in young children, where the assessment of damages would rightly be delayed until the child had reached maturity. In my view that is not relevant to consideration to whether a trial for an interim assessment of damages should be ordered. Section 38 is not confined to catastrophic injuries, or injuries involving young children. Section 30b of the Supreme Court Act was not so confined by the earlier decisions I have referred to. This matter is one where the plaintiff’s condition is not stable, and the medical experts cannot opine when his left shoulder will improve. There is a risk it may deteriorate. His treating surgeon cannot provide final opinion at this stage. In the circumstances, the matter cannot proceed to a final assessment of damages, and this is further complicated by the requirement for an ISV assessment pursuant to the Civil Liability Act Regulations 2013. As Bray CJ stated in Nathan and James v Voss the making of a declaratory judgement now, and postponing the final assessment of damages will enable the court to ultimately do more precise justice in that assessment[17]. In the decision of Brown v South Australia, Jacobs J stated in relation to a case involving a child who had suffered a head injury and might suffer epilepsy in the future that the court,
… should, in the circumstances, take the opportunity to do more precise justice in the future than estimate the chances now, even though the portents are good, and do not point to the likelihood of any change for the worse in the plaintiff’s condition. The medical prognosis, however, does not exclude the possibility of such change, as a significant although increasingly remote possibility, and the section obviates the need to resort to guesswork, even well-informed guesswork, when there is no compelling need to do so.[18]
[17] [1970] SASR 455 at p466.
[18] (1984) 36 SASR 147 at p 151.
In determining this matter, I have taken account of the processes available to the plaintiff to obtain interim payments from the CTP insurer. It is my view that it is not for the court to comment on that process. However, the uncertainty, and the resulting impact on the plaintiff’s psychological injuries caused by the accident, of whether a payment will be made is a matter I take into account as relevant to my discretion. The process is necessarily rigorous, but the criteria that the plaintiff must prove financial hardship before seeking a payment, in circumstances where that financial hardship is not of his own making, and the impact of that upon him, is a relevant matter to take into account.
The other factor which was not considered in the earlier decisions is the additional cost to the parties, and in the administration of justice, of two trials being conducted. There will no doubt be some duplication. However, in this matter the evidence which has been given in the first trial can be relied on in the second, as the issue will only be the final assessment of damages. This is not a case of splitting issues into two trials. I cannot see how all evidence would have to be recalled. It is also my experience that once a plaintiff has given evidence and the defendant has had the opportunity to assess credibility and medical issues at a trial there is more scope for resolution of the matter without a second trial being necessary. In this case, which is not unduly complex and where liability is not in dispute the issue of duplication and extra expense is less of a persuasive factor. That will not always be the case.
In determining the plaintiff’s application, I am troubled by his decision, having received an interim payment of $20,000.00 the CTP insurer in October 2019, to spend that money other than on his day-to-day living expenses or his debts. The evidence is that although he felt a moral obligation to make a payment of $8,500.00 to his father’s mortgage as a way of contributing towards him living at his father’s home since the accident, that payment was almost half of the interim payment at a time when the plaintiff could not meet his other expenses. His father did not require the payment. I take the plaintiff’s actions into account.
Applications for an early trial for an interim award of damage necessarily means if granted, that the plaintiff is ‘jumping the queue’ of other cases involving plaintiffs who are seeking damages due to injury suffered as a result of a defendant’s negligence. In my view, there must be very good reason for that to occur, or the listing processes in this court would be overrun, and cases where injuries were stable would be pushed further down the list. There must be good reason for a matter to be listed urgently, which takes the case outside of the ordinary.
Severe financial hardship in cases where a plaintiff was working consistently before an accident and can no longer do so, and does not have resources to meet his/her living expenses is a case where consideration should be given to an early assessment of an interim award of damages. If a person is injured due to no fault of their own, and cannot obtain finances in other ways, and is at risk due to their financial situation then it is my view that an urgent hearing on an interim assessment of damages should be ordered. Another such situation is where a plaintiff is struggling to meet required medical, care or rehabilitation costs and cannot wait to be reimbursed by the defendant or the insurer after incurring such costs, and as a result cannot obtain the medical treatment or rehabilitation they require.

In determining the plaintiff’s application, and having considered all factors, it is a very fine line, particularly given the total of the interim payments that the plaintiff has received to date. However, given the plaintiff’s level of earnings before the accident, and his established loss of work capacity as a result, together with his proved dire financial circumstances since the accident, I have come to the conclusion that this is a proper matter for an early trial to be listed on an interim assessment of damages.
I make an order that pursuant to s 38 of the District Court Act 1991 (SA) and rule 119(1) of the District Court Civil Rules 2006 (SA) that this action be listed for an early trial to provide a declaratory judgment and determine an interim award of damages for the plaintiff.
I will hear the parties in relation to any consequential orders.