Deckers v Spisso No. DCCIV-95-655 Judgment No. D3634

[1997] SADC 3634

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Wilson

Hearing

13/01/97 to 15/01/97.

Catchwords

Car and pedestrian collision - plaintiff walking west across Gawler Place just south of Gawler Place/North Terrace intersection where several cars are banked up facing north - defendant reverses her vehicle without warning, and strikes the plaintiff and carries him backwards for about 5 metres - defendant's lookout held to be defective - no contributory negligence. Plaintiff a male barman/cellarman aged 23 years at time of accident - minor injury to wrist and knee - more significant injury to lower back - diagnosis of injury to facet joint - 15% permanent loss of lumbar spine function and 10% left lower limb function above the knee. Plaintiff changed jobs to work in a paint shop and then to work in his own self-employed business as a maintenance contractor - unable to do heavy work - 10% loss of working capacity. S35a Wrongs Act - numerical value of 9. Non-economic loss $12,330.00;economic loss: past $8,000.00, future $50,000.00;special damages $3,764.04;future medical treatment $12,000.00 - total assessment $86,094.04; 23 year old male barman/cellarman; Permanent disability percentage 15% ; Permanent occupational restriction; Wrongs Act scale 9; Past economic loss $8,000.00; Future economic loss $50,000.00; Non-economic loss $12,330.00; Past special loss $3,764.04; Future special loss $12,000.00; Interest $1,000.00; Total assessment $87,094.04

Materials Considered

• Roger v Riches (1987) 4 MVR 315 at p 317;
• Giorginis v Kastrati (1988) 49 SASR 371 at p 374;
• Nolan v ANR Commission (1985) 124 LSJS 235, applied.

Representation

Plaintiff JASON MARK DECKERS:
Counsel: Mr R Soulio - Solicitors: David Heaney &; Associates

Defendant OLGA TINA SPISSO:
Counsel: Mr B James - Solicitors: Ward &; Partners

DCCIV-95-655

Judgment No. D3634

3 July 1997

(Civil)

DECKERSvSPISSO

Civil

Judge Wilson

In this action the plaintiff, a male bar and cellar worker, sues for damages for personal injuries suffered by him in a motor vehicle/pedestrian accident which occurred at approximately 4.30 p.m. on Tuesday, 2nd June 1992 when the plaintiff was crossing Gawler Place, Adelaide on foot (walking in a westerly direction) some little distance south of the Gawler Place/North Terrace intersection.

It was the plaintiff's case that the defendant, the driver of a Ford Laser sedan motor vehicle which had been stationary at the intersection (and facing north) behind three or four other cars that were banked up (in the lane nearest to the western kerb of Gawler Place), suddenly and without any warning reversed her vehicle in a southerly direction causing it to collide with the right side of the plaintiff's body.He had been crossing Gawler Place on foot behind the defendant's stationary vehicle.It was the plaintiff's case that, when the plaintiff realised that the defendant was, somewhat surprisingly, intending to undertake a reversing manoeuvre in those circumstances, he grabbed hold of the rear of the defendant's vehicle and twisted sharply to avoid being knocked completely to the ground and run over.He was not able to avoid being carried several metres along the roadway.It was the plaintiff's case that, when the defendant stopped her vehicle, she subsequently drove off forwards moving into the right-hand lane and then turning right into North Terrace.

The plaintiff's claim was in negligence.The plaintiff ultimately relied upon an allegation that the defendant's manoeuvre, in reversing suddenly and without warning, constituted driving without due care or attention or without reasonable consideration for other road users.The plaintiff also relied upon allegations inter alia that the defendant failed to keep any or any proper look-out (to the rear) and failed to stop or otherwise manoeuvre her vehicle so as to avoid colliding with the plaintiff (a pedestrian).

Although there was no denial that an incident occurred in Gawler Place, there was a denial that a collision occurred and there was a denial of negligence on the part of the defendant, who also maintained inter alia that any collision was caused by the negligence of the plaintiff.

The defendant also maintained, in the alternative, that if, notwithstanding her denial, the defendant was negligent, then the plaintiff was guilty of contributory negligence in that he, so the defendant maintained, inter alia failed to keep a proper or adequate look-out, attempted to cross Gawler Place when it was unsafe to do so, and walked to the rear of the defendant's vehicle when it was unsafe to do so.

The plaintiff claimed that, in the course of the collision and in trying to avoid a more serious outcome, the plaintiff sustained an injured wrist, an injured knee and other injuries including, in particular, an injury to his lower back.

The questions in issue include how the accident was caused, whether the defendant was negligent, whether the plaintiff was guilty of contributory negligence, and what damages are to be assessed.

At this stage I propose to deal only with the questions of liability arising from the allegations and counter-allegations of negligence and the allegation against the plaintiff of contributory negligence.I first turn to a consideration of the credibility and reliability of the witnesses on the issues of liability and to a consideration of the exhibits.

THE WITNESSES AS TO LIABILITY

The first witness for the plaintiff was the plaintiff himself.He struck me as an honest man who was doing his best, in the context of describing the accident, not only to tell the truth but also to describe what he recalled.

I believed the plaintiff when he told me that the defendant's vehicle was in the left lane for traffic turning left out of Gawler Place into North Terrace. I also believed him when he testified to the fact that the defendant's vehicle, after reversing to the point where the collision occurred, proceeded forwards and turned right into North Terrace.

Whilst I concluded that the plaintiff was mistaken in believing that there was a 'P' plate sticker on the defendant's vehicle, that was an understandable mistake on his part.To his credit the plaintiff acknowledged in cross-examination that he could be wrong regarding the 'P' plate.

Whilst the plaintiff left me with the impression that he was a somewhat excitable and voluble witness, he was nevertheless a credible one.

Even though he did, during cross-examination, have a tendency to argue his cause, his credibility remained in tact.The plaintiff's demonstrations as to precisely how the impact occurred and how his body was affected were convincing and made good sense.In so far as the plaintiff gave evidence as to the identification of the car that struck him, I found such evidence to be weighty. In my judgment, no mistake in identification occurred.

The first witness for the defence was the defendant herself.She revealed herself to be one who did not have a good memory of events.She was not sure of many things and seemed to be engaging more in an exercise in ex post facto rationalisation than in an exercise involving recounting true recollection. The defendant's counsel was frank enough to acknowledge during his final address that "the defendant was not overly helpful to the court" and that "her recollection of things generally was not particularly good".

The short-comings of the defendant, as a witness, cannot, in my assessment, be explained away on the ground that she was "very nervous in the (witness) box". I simply did not accept her denial of having reversed at any stage.She was, at the very least, seriously mistaken.I thought that she, somewhat unreasonably, denied the possibility that she had "found (herself) in a lane that had traffic banked (up in it)" and that she had "moved back to get into a clearer lane".

The defendant was not able to remember whether there were cars either in front of her or behind her as she was stationary in her vehicle at the Gawler Place/North Terrace intersection waiting for the lights to change.She was not at all definite that she had been "turning left to get to (her friend's) house".She was unable to recall how many lanes there were "for cars heading towards North Terrace".She said:"I'm not sure whether I was second or third, I don't know what was really behind me.I'm not sure how many cars."

I was left with the impression that the defendant was not sure of the direction in which she travelled after the collision.When asked by me rather bluntly in which direction she "took off" after the lights turned green, she replied:"I'm pretty sure it was to the left because I was in the left lane."

When under cross-examination she was asked:

"You said whilst you're fairly sure that you intended to turn left, obviously that may be incorrect.You're not positive about that?",

to which she replied:"No, not 100% sure."When pressed as to whether she had "turned right", as the plaintiff had suggested, her ultimate answer was: "I don't know".

I accepted her evidence to the effect that she had "come off her 'P' plates" in August 1990 and was, therefore, not driving with 'P' plates at the relevant time.In this respect the plaintiff was, as I have previously indicated, simply mistaken.

The defendant's evidence lacked weight for a number of reasons, including the fact, acknowledged by her, that, apart from the fact that "somebody (had) just knocked on (her) back window", the incident had not been of very much importance to her at the time and, therefore, had not made a deep impression upon her.

That her version of the event lacked the ring of truth about it became the more apparent to me when she, rather too adamantly, agreed that "her version of (the) events (was) that a complete stranger, for no reason at all, just walked up in some way and thumped on (her) stationary car".

The second defence witness was Lina Peressoni, the defendant's friend and the person who had accompanied the defendant into the City on that afternoon. Whilst her testimony was superficially convincing, I was left, in the end, with an uneasy feeling that the story she told was the result of a tendency to reconstruct and provide testimonial assistance to her friend, the defendant. There was a lack of consistency in the testimony of the two young women.

Lina Peressoni's story was rather too defence-orientated for one who was not asked to recall the events of the afternoon in question for a long time and who had agreed that the incident was, at the time, of little importance to her.

The evidence of both Lina Peressoni and the defendant was, I think, tainted by the fact (as acknowledged by them) that both young women were in the room together when they were interviewed and when statements were checked and expanded by them in March 1996.

Whilst I accept that a conversation took place near the exit to the David Jones car park as to the route which Mrs Peressoni and the defendant would take to go home, that conversation begs the question as to whether or not there was a subsequent decision made by the defendant to reverse along the left-hand lane with a view to getting into the right-hand lane and then ultimately exiting from Gawler Place by turning right into North Terrace.

I thought Mrs Peressoni's evidence lacked the ring of truth about it when she said in examination-in-chief:

"Yes, we heard a tap on the back of the window, or the back end of the hatch, like whether it was the window or the back of the thing I don't know, but we heard a tap and we turned around to see what happened and we saw a guy walking like - just say like as if your car was there, and he was walking off towards the driver's side and just yelling and screaming out what he yelled and screamed, and off he went up to (is it east?) up that way to Pulteney Street, up that way."

and when she said, in response to a question by me during cross-examination:

"Q. It is also being suggested that the person who knocked on the car went to North Terrace and walked west.

A. The person that yelled at the car actually tapped on the back side.He actually walked towards the right side, like, as the person tapped, we turned around - I turned to my right and you could see him actually walking over across the road and yelling and screaming and off he went facing up towards Pulteney Street."

I am neither persuaded by Mr James that there are only the four "possible explanations" (as put forward by him) to explain the difference in the versions of the witnesses as to what happened in Gawler Place on the afternoon in question, nor convinced that the "fourth possibility" as relied upon by him is the one "that seems to make the most sense".I am not led, by the evidence, to find that the plaintiff made a mistake in identifying the car that reversed into him or to find that "there were two similar-looking cars in the same vicinity" at the same time.

The evidence leads me to find, on the balance of probabilities, that the plaintiff was neither lying (on the issue of liability) nor mistaken (except as to the 'P' plates) and that the defendant and her witness at the very least engaged in a process of reconstruction which led to error.This process of reconstruction resulted in them asserting (and possibly believing) that the accident occurred as they described the events with errors manifesting themselves in a number of respects including, in particular, the position on the road of Gawler Place (and the distance from North Terrace) where point of impact was and the route taken by each of the plaintiff and the defendant after the incident.As far as the defendant and her witness are concerned, they either lied or were mistaken.In either event, their story was implausible.

I find it unnecessary to reach any final conclusion as to why and how two otherwise impressive women should tell such an unreliable story.The plain fact of the matter is that their evidence on crucial issues lacked credibility and reliability.The defendant was not a good witness and her witness, Mrs Peressoni, though giving superficially plausible evidence, was in the end assessed by me as falling into the category of unconvincing.

There was some inconsistency between the plaintiff's evidence and the history of how the accident happened as apparently taken by Dr Humble.In the absence of any oral evidence given by Dr Humble, I find that Dr Humble either misunderstood what the plaintiff was telling him or made a mistake in describing the history taken.I see insufficient reason for rejecting the plaintiff's evidence.Furthermore, the history taken by Dr Humble has limited use;it is not evidence going to the truth of what was purportedly stated by the plaintiff;it is evidence which might (but I think does not) show inconsistency on the part of the plaintiff in recounting his story and which might (but I think does not) lead to the plaintiff being discredited.

THE EXHIBITS

The Exhibits D2 and D3 are statements made by the plaintiff regarding inter alia the circumstances of the collision, Exhibit D2 being the plaintiff's statement given to the police on 6th June 1992 and Exhibit D3 being the statement taken from the plaintiff by a loss adjuster on 1st April 1993.These two statements, whilst not being evidence as to the truth of what is contained therein, are important and assist the plaintiff's case, because they operate to enhance the plaintiff's credibility as a witness, to show the consistency between the plaintiff's evidence in court and his account of events on previous occasions, and to deny the suggestion that the plaintiff's evidence constituted fabrication or recent invention.

The evidence of the marks made on Exhibit P1 (the plan) to show the approximate point of impact (where the plaintiff crossed Gawler Place on foot) is more consistent with the plaintiff's oral evidence than that given by the defendant and her witness.

FINDINGS AS TO LIABILITY

I find that the plaintiff was walking in a westerly direction across Gawler Place approximately midway between the exit from the David Jones car-park and the Gawler Place/North Terrace intersection and approximately 30 metres south of that intersection.The plaintiff was crossing the street and intending to pass behind the defendant's vehicle which was stationary in a line of traffic (nearest to the western kerb) waiting for the lights at the intersection to turn green.The probabilities are that the defendant decided to reverse her vehicle with a view to them proceeding northwards to the intersection and thence right into North Terrace.When reversing, the defendant's vehicle collided with the plaintiff, who was dragged along for a distance of about 5 metres with him hanging onto the rear window wiper.In the course of what occurred, the plaintiff's right knee was struck, his body was twisted and other injuries were caused.

I further find that, when the defendant's vehicle stopped, the plaintiff banged on the window of the vehicle to draw attention to what had occurred. The defendant then drove forwards and executed a right-hand turn into North Terrace heading towards Pulteney Street.The plaintiff proceeded on foot in the direction of his place of work (The Terrace Hotel on North Terrace) by walking to the Gawler Place/North Terrace intersection and then turning left towards King William Street.

I find that, save and except for his evidence as to the existence of 'P' plates, the plaintiff's evidence-in-chief was credible and reliable.He said:

"The vehicle to my right - as I crossed, I was the closest pedestrian to the rear of that vehicle ... (it) reversed pretty quickly, and just before it struck my leg I caught, in the corner of my eye ... that it was reversing, and I stuck my hand out to prevent any collision.Of course it was moving too quickly and it forced me off my feet.I held onto the back-of-the-car wiper with my wrist and the car struck my (right) knee ... and I bent backwards ... onto the back of the car, holding onto the wiper ... .(After I was struck) I released my hand.I was disfooted.I was on my side - I had fallen onto the side of my - say my left leg.I regained (my) feet.A pedestrian next to me helped me up;said a couple of kind words.I walked around ... banged on their window ... just in anger to say 'watch out', and I let them know that I was angry and they looked very startled.Then the lights had changed by that stage;the traffic ahead had gone;they drove off heading right (into North Terrace).And, as the car went around the corner, I caught (sight of) the number plate."

I find that the plaintiff's allegations regarding liability have been proved. I reject the main thrust of the evidence given by the defendant and her witness.If the explanation advanced on behalf of the defendant was a correct one, then, as Mr Soulio put it, there must have been "a remarkable series of coincidences".To explain this finding another way, the circumstantial evidence leading to findings in the plaintiff's favour was strong.

It has been clearly established that the defendant was negligent.In maintaining an inadequate look-out behind her vehicle and by reversing her vehicle when it was clearly unsafe to do so, she was guilty of a substantial and serious departure from the standard of care expected of a reversing motorist.Had she kept an adequate look-out to the rear, the defendant would have observed the plaintiff and the other pedestrians crossing Gawler Place to her rear and the situation of danger that was imminent and she could have stopped thus avoiding the collision.

No contributory negligence has been established.The failure on the part of the plaintiff to have seen the defendant's vehicle any earlier than he did see it and the failure on the part of the plaintiff to have got out of the path of the defendant's vehicle as it reversed does not constitute negligence contributing to the accident that followed.There is nothing of substance to suggest that the plaintiff failed to keep a proper look-out and should have seen the defendant's vehicle earlier than he did.The other pleaded allegations of negligence and contributory negligence against the plaintiff are not proven.The plaintiff could not have done any more than he did to avoid or minimize the effects of a serious collision.In the words of King CJ in Roger v Riches (1987) 4 MVR 315 at p. 317, the plaintiff cannot be "criticised for adopting that particular measure in an effort to avoid" being run over.The course which the plaintiff took, albeit with unfortunate consequences in terms of injury to his back, was "the sensible and prudent course" in the circumstances.The evidence is that he, as a pedestrian, was walking safety across the street.No want of care and attention on his part was proven.It is a counsel of perfection to say otherwise.

What should he have done which he did not do?What should he have not done which he did?In what way did he depart from what should be regarded as a proper standard?

An examination of the evidence does not lead me to the conclusion that it has been established that the collision occurred because of any wrongful action or inaction on the plaintiff's part.

In arriving at the conclusion that it has not been established that the plaintiff was even guilty of a slight departure from the standard of reasonable care required of a pedestrian crossing a city street, I have relied upon the legal authorities that have dealt with the notion of contributory negligence. Because of the lack of reasonable opportunity for the plaintiff to evaluate the manoeuvre of the defendant's vehicle and to avoid any more than he did the consequences of the defendant's folly in reversing suddenly as she did when it was not safe to do so, it would be wrong to condemn the plaintiff by making a finding that he was negligent or guilty of contributory negligence. Notwithstanding Mr James' efforts to persuade me otherwise, the defendant simply has not proved that the plaintiff was negligent in some relevant respect.

I turn now to the question of damages.

CREDIBILITY OF WITNESSES AS TO DAMAGES

Whilst I have been content to accept the main thrust of the plaintiff's evidence, I was less impressed by the plaintiff as a witness when he was dealing with damages issues than I was when he was dealing with the circumstances of the accident.

I assess the plaintiff to be very much an activist in the employment field, and he has not, I find, always been frank with his employers and potential employers.He has tended to put his own interests (and, I suspect, the interests of his fellow workers) ahead of his employers.Likewise, in his dealings (indirect as they might be) with the insurer of the defendant, I assess the plaintiff to be one who is willing not only to make the most of his complaints in the area of loss of earnings and loss of earning capacity, in particular, but also to attribute in a causation sense more to the accident than is warranted.

As will appear, I am not persuaded by the plaintiff's evidence as to the extent to which his ongoing disabilities, as distinct from a desire to engage labour to assist him in his business generally, have resulted in a large wages bill and a loss of income for himself.Furthermore, I found his evidence unconvincing when he purported to attribute his change of job from The Terrace to Wattyl Paints in August 1992 and his departure from Wattyl Paints in mid 1995 to the accident and to the injuries resulting therefrom.The picture I see, in the end, is of an employee of The Terrace voluntarily changing jobs and doing so irrespective of the accident having happened, and of an employee of Wattyl Paints being inconvenienced very little by his injuries and ultimately having that employment come to an end for reasons quite unrelated to the accident.Following a period of non-compensable unemployment, I see the plaintiff, as a self-employed maintenance man, ultimately achieving a considerable amount in his chosen area of work, but incapacitated to only a moderate extent.

For these reasons I treated the plaintiff's evidence as to loss of earning capacity with caution.However, I did not reject his evidence entirely. Notwithstanding the sincerity of the views held by the plaintiff, I have found myself unable to accept that, but for his injuries, he "would have done 60 per cent to 70 per cent" of the work that he has engaged contractors and labourers to do.I am not persuaded to allow as a head of damage 30 per cent to 40 per cent of the labour expenditure he has incurred.Secus, if there had been some independent or expert opinion evidence to support the plaintiff, or if there had been some evidence to prove that the plaintiff has, because of his physical incapacity, been idle during a portion of each working week.

The witness Michael Asimo was somewhat arrogant and verbose and, to an extent, biased against the plaintiff.He was the plaintiff's sales supervisor whilst the plaintiff was at Wattyl Paints.I concluded that Mr Asimo exaggerated somewhat the plaintiff's ability to do physical work and his physical fitness. I concluded that Mr Asimo was excessively critical of the plaintiff in other respects.As to the circumstances leading up to the plaintiff securing work at Wattyl Paints, I accept Mr Asimo's evidence as far as it went.

DAMAGES GENERALLY

The plaintiff was 23 years of age at the time of this accident.Having been a student in hotel management, he obtained (in mid-1989) a position at The Terrace Hotel doing bar and cellar work.He was working in that position at the time of the accident.

After the accident the plaintiff was very shaken.He was not immediately sore, except for his wrist which had been bent back.He was able to walk back to his place of work.When he arrived back at work, his knee felt a little sore.He had a few grazes.He was able to work for the rest of the day.

The plaintiff attended his own doctor the next day.By that stage his back was sore and his wrist was very very sore.The knee was not a matter of great concern;the wrist was the main concern.

The plaintiff recovered from his wrist injury within a few days, but the back became progressively worse.

The fact that no note regarding his back was made in the notes (for 3rd June 1992 - see Exhibit P5) kept at his doctor's rooms is not of significance in the circumstances.As the wrist was the main problem from the patient's viewpoint, it is not at all surprising that no note was made of any problem with the back at that first consultation.There was at no later time any suggestion that the back injury was not related in a causal sense to the accident.

I am persuaded that the plaintiff sustained in the accident a facet joint disorder.

Dr Penny King and other general practitioners with whom she worked saw the plaintiff and treated him as from 3rd June 1992 onwards.The history taken from the plaintiff was consistent with his account of what happened in the accident.Even though the plaintiff worked for some of the period from 2nd June (the date of the accident itself) until 22nd August 1992 (a date beyond when he was expected to be fit for work), he was off work for a total at that stage of nearly two months.Dr King was adamant that the plaintiff's "only ongoing injury discomforts (as from 3rd July 1992 were) with his lower back; he had limited range of movement and ongoing spasms in his left hip and lower spine".

Dr Ian Tattersall obtained a consistent history and reviewed the notes of earlier medical consultations.He formed the opinion that the plaintiff had "a degree of facet joint degeneration in his lumbar spine" sufficient to justify "an initial diagnosis of soft tissue injuries to (the plaintiff's) lumbar spine region and right wrist".With reference to the issue of causation, Dr Tattersall deferred to the judgment of Dr Osti.In terms of permanent residual disability, Dr Tattersall stated (in his report dated 28th November 1995 - Exhibit P5):

"The permanent loss of full and efficient use of the lower back and lumbar spine in this case is characterised by recurrent and persistent symptoms confined to the lumbar region, with some occasional ache in the upper left leg. This has apparently been diagnosed as degenerative changes in the facet joints of the lumbar spine ... (this) equal to a 5% whole person impairment."

Regarding the future, Dr Tattersall was of the opinion:

"(He) will likely experience occasional exacerbation of his back pains for possibly the rest of his life.These exacerbations would likely require the use of anti-inflammatories, and possibly up to six physiotherapy attendances ...An exacerbation rate of between one and four episodes per year may be reasonably expected."

Mr Orso Osti, the orthopaedic surgeon, also obtained a history which was consistent with the plaintiff's account of what had happened in the accident. Dr Osti qualified the opinion expressed in his first medical report dated 13th May 1994 (Exhibit P6) by indicating that he might well have been responsible for putting a gloss on the history taken by using the words "immediate onset of low back pain".Mr Osti explained the treatment in the form of a course of non-steroidal anti-inflammatories followed by two apophyseal joint injections with cortisone in March and September 1993.Mr Osti assessed the plaintiff's condition as being "in keeping with irritation of (or injury to) the L4-5 and L5-S1 apophyseal joints ... entirely ascribed (and directly and entirely related), based on (the plaintiff's) history, to the motor vehicle accident ... on or about 2nd June 1992 and not to a pre-existing degenerative condition". In terms of permanent residual disability, Mr Osti was of the opinion (in May 1994) that the plaintiff "continued to be disabled by backache which interfered with lumbar spine movement and participation in repetitive physical work".

In his report dated 13th July 1995 (Exhibit P7), Mr Osti expressed the opinion that the plaintiff's condition "required extensive conservative management ...",that "(he) has been able to return to full-time work in a light to moderate physical capacity with no significant restriction", but that "(he) has ... not been able to return to his pre-injury status and he continues to suffer from mild low back symptoms ...".

In his report dated 12th August 1996 (Exhibit P8), Mr Osti repeated his earlier diagnosis and confirmed his opinion as to the matter of causation.He went on to state:

"(The plaintiff) is currently working as a self-employed maintenance person and I would expect him to cope with light to moderate physical duties on a full-time basis ...(He) may suffer from exacerbation of his spinal condition if he engaged in heavy, repetitive physical work with reference to lifting over 25 kilograms, prolonged overhead tasks and prolonged driving or being a passenger in a motor vehicle for prolonged distances."

Mr Osti acknowledged the possibility that the plaintiff's working life would be foreshortened as a result of his injuries.Mr Osti thought it likely that the plaintiff would require intermittent sessions of physiotherapy over the years ahead and periodic check-ups by his general practitioner.He is likely to continue to use intermittently anti-inflammatories and analgesics.

I accept in its entirety the expert opinion evidence given by Mr Osti and as explained by him when in the witness box.

Mr Peter Humble, the defence orthopaedic surgeon, wrote a report dated 11th August 1992 (Exhibit D5).The history he took was generally consistent with the account of the events given by the plaintiff.Mr Humble acknowledged the possibility, but seemed reluctant to consider it a probability, that the plaintiff sustained a low back sprain.The failure to recover quickly loomed large in Mr Humble's decision to reject a low back sprain as the appropriate diagnosis.I found Mr Humble's reasoning to be unconvincing.

Dr Geoffrey Graham saw the plaintiff six days after the accident.The history he took was consistent with the plaintiff's account.Whilst acknowledging the possibility that the accident caused an injury to "a posterior joint at the L4 level", Dr Graham was unable, for reasons which did not become apparent, to state in his report dated 14th June 1995 (Exhibit D7) whether in his opinion the accident was (or was not) responsible for the problem in the plaintiff's low back.

Mr P.L. Fry, the orthopaedic surgeon, was not called to give evidence for the defence, but I found his report dated 12th July 1996 (Exhibit D8) helpful as far as it went.The only respect in which I found myself unpersuaded by Mr Fry's expert opinion evidence was his assessment of the percentage loss of function of the lumbar spine and his characterization of the residual impairment as "more (of) a general nuisance ... than serious".

Unlike Dr Graham, Mr Fry experienced no difficulty in expressing the opinion, based on the balance of probabilities (the civil standard of proof), that there was "a direct (causal) connection between what (was) present (in June 1996) and what was caused (in June 1992)".He was referring to what he had previously described as "some facet joint damage at the bottom of (his) back".

I accept Mr Fry's final comment regarding capacity for work:

"I think there is no reason why (the plaintiff) should not resume full or part-time employment in the future, the only proviso perhaps being that he would be unsuited for the heaviest forms of manual work with repetitive bending and a lot of heavy lifting."

Regarding the permanent impairment or loss of function of the back, Dr Penny King assessed it (in 1994) at 10%;Dr Ian Tattersall assessed it (in 1995) at 10% to 15% expressed as "loss of heavy working capacity", or 5% "whole person impairment";Mr Osti assessed it (in 1995) at 15% "lumbar spine function" and 10% "left lower limb function above the knee";and Mr Fry assessed it (in 1996) at 7% "loss of function of the lumbar spine".Regarding the permanent impairment or loss of function, I prefer the assessments of Dr Tattersall and Mr Osti to the other assessments.I rely upon Dr Tattersall's opinion regarding loss of working capacity in reaching as a basis for the assessment of the loss of working capacity the figure of 10%, which represents, as I interpret the evidence, the incapacity (or loss of capacity) to undertake heavy work.

THE ASSIGNMENT OF A NUMBER ON THE SCALE FOR NON-ECONOMIC LOSS

I assign a numerical value on the scale of 0 to 60 of 9.I have assigned that value because of the long period of suffering, initially mostly in the form of annoying back pain, later in the form of intense pain associated with twoapophyseal joint injections, and subsequently and for the rest of the long life he can expect ahead of him in the form of periodic back pain, together with loss of enjoyment of life associated with disheartening permanent incapacity.A good deal of the treatment that the plaintiff has received and is yet to receive involves pain and/or discomfort.

Whilst I note that there is nothing in the evidence to suggest that the plaintiff will, in the future, be unable to work or be deprived of the ability to enjoy recreational activities or take part in things which he has cherished, he will always need to take care and he will be constantly reminded (sometimes by annoying pain experiences) of the accident.

I have not overlooked the fact that "non-economic loss" includes inter alia pain and suffering, loss of amenities of life and (importantly, in this case) physical incapacity.

LOSS OF EARNINGS

Before indicating what has been proven and what has not been proven in terms of loss of earnings (past economic loss), it is as well for me to draw attention to the fact that the plaintiff bears the onus of proof, i.e. the burden of proving his loss.The matters to be proven by the plaintiff include the extent of the pre-accident earning capacity, the extent to which that capacity would have been productive of income had the accident not happened, and, most importantly in the context of this case, the extent to which the compensable injuries have diminished the ability to exercise the pre-accident earning capacity [Giorginis v Kastrati (1988) 49 SASR 371 per von Doussa J at p. 374].

With reference to the claim for loss of earning capacity (past economic loss), it has been proven that the plaintiff's loss of earnings during the whole period from 2nd June 1992 to 22nd August 1992 (a period, subject to some returns to work, of nearly two months) was caused by the accident.The sums paid by way of income maintenance by the Workcover Corporation (and agreed as to quantum) come to a total of $2,487.78.

It has not been proven that the plaintiff's loss of earnings in the period between mid-1995 (the date of his termination from Wattyl or such later date as was effectively his termination date) until he commenced working on his own in early 1996 was caused by the accident.I find that his termination was a matter between himself and Wattyl and not, in any sense, due to his injuries or any inability on his part to perform the work which Wattyl required of him. There was no causal connection between the subject accident and the events which precipitated the termination or the period of unemployment prior to him commencing self-employed work.Nevertheless, I consider it appropriate to allow something for the ongoing loss of earning capacity.

It has been proven that the plaintiff has sustained a loss of earnings in the whole period from January 1996 (the date upon which he commenced working on his own) to the date of judgment, which was caused by the accident.He has found himself unable to perform all of the physical work that, but for the accident, he would have been able to perform;he has had to engage other man-power to do that work;and he has lost part of his profit.This is not to say that he has been totally and permanently incapacitated for work in that period;it has been a partial incapacity only.

Although the plaintiff deserves credit for the efforts which he has made to earn income in the period since December 1995 (when he started his own business), what he has lost has been the chance to exploit his earning capacity to the full.

I assess his past economic loss, in money terms, at the global sum of $8,000, which sum represents, in my judgment, fair compensation for the economic consequences between 2nd June 1992 and the date of judgment of his impaired earning capacity [see King CJ in Nolan v ANR Commission (1985) 124 LSJS 235].

FUTURE ECONOMIC LOSS

With reference to the claim for future economic loss, I find that, as a result of the accident, the plaintiff is likely to be at a disadvantage if he is forced back into the general work force but not, in any real sense, incapacitated from securing work.He has, as I have already indicated, lost the chance to exploit his earning capacity to the full.

I find that, as a result of the accident, the plaintiff is likely to continue in his own business to be at a disadvantage (compared with the situation in which he would have found himself if no accident had occurred) in the sense that, firstly, he will not be able to do all the physical work that an ordinary self-employed maintenance man could expect to perform and, secondly, he will need to employ staff to perform some physical work with a resultant loss of profitability.

I was invited by Mr Soulio to undertake a calculation something akin to an actuarial basis.However, I am not persuaded that I should undertake a calculation upon the basis of (or using) the figures and percentages relied upon by Mr Soulio.On the evidence, I do not see how the plaintiff's income would, but for the accident, have been increased by anything in the order of $115 to $133 nett per week;as previously indicated, I do not accept that 60% to 70% of the wages were incurred because of the plaintiff's incapacity and the necessity "to engage people to do work that he couldn't do".It is to be remembered that the defence challenged the claim made on the basis just discussed.

Nevertheless, I did find it helpful to make an assessment on an actuarial basis and to apply to this question of permanent loss of earning capacity the same percentage (10% to 15%) as Dr Tattersall used in assessing the permanent "loss of working capacity" (see supra).This provided me with a check against gross error that might otherwise have arisen in applying the preferred "broad axe" approach.

On an actuarial basis and using the "10%" just referred to, it would not be unreasonable to assess the plaintiff's future loss of earning capacity (necessarily somewhat artificially) at not less than 10% of his full capacity, that is to say $60 per week (10% of $600 per week) subject to an appropriate allowance for vicissitudes.Assuming that his expected working life would end at age 65 and using an interest rate of 5% (agreed), the amount of compensation appropriate to this loss would be, using an agreed multiplier of 862, $51,720.00.Mason and Aickin JJ adopted a similar approach in Dessent v Commonwealth of Australia (1977) 13 ALR 437.

I consider that the application of the "broad axe" approach is more appropriate in this case.

I assess the plaintiff's future economic loss, in money terms, at the global sum of $50,000.

SPECIAL DAMAGES

I understand it to have been agreed that the special damages are $3,764.04, which sum includes a sub-total of $3,500.04 paid by Workcover.

I, therefore, assess the special damages at $3,764.04.

FUTURE MEDICAL AND PARA-MEDICAL EXPENSES

In terms of future treatment, I find that it is probable that the plaintiff will need to consult his general practitioner from time to time, sometimes as many as four times per year or whenever there is a flare-up of symptoms.In relation to each exacerbation, what is likely to follow is one initial consultation with a physiotherapist and then five subsequent consultations. Prescriptions for anti-inflammatory medication will need to be made up and pain-killers will need to be purchased.Adopting, as I am content to do, the general thrust of the submissions made by Mr Soulio based on the evidence regarding the frequency and cost of this future treatment, I allow the plaintiff $12,000 under this heading, after allowing a discount for vicissitudes including the very real likelihood that not all this treatment will be needed.

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For all these reasons, I assess the plaintiff's damages as follows:

Non-economic loss$12,330.00

(9 multiplied by "prescribed amount"

of $1,370)

Special damages (agreed)$3,764.04

Economic loss:Past$8,000.00

Future$50,000.00$58,000.00

Future medical treatment$12,000.00

Total$86,094.04

The question of interest aside, the plaintiff is entitled to judgment for $86,094.04.

I will hear counsel on any ancillary questions including interest and costs.

IN COURT ON 3 JULY 1997

Interest fixed at $1,000 lump sum.

Order:

Judgment for plaintiff against the defendant in the sum of $87,094.04 plus costs to be taxed.