EVANS v REEVE - [2008] SADC 63

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
EVANS v REEVE
[2008] SADC 63
Judgment of His Honour Judge Soulio
19 May 2008
TORTS - NEGLIGENCE
Plaintiff injured jumping from trailer of truck running out of control - default judgment - defendant negligent in failing to secure vehicle - whether injury arose from a "motor accident".
Wrongs Act 1936 s35A(5)&(6); Motor Vehicles Act 1959 ss5&99(3), referred to.
WorkCover Corporation v Reiter (1997) 70 SASR 347, applied.
Clyne v Gulbin (1995) 65 SASR 397, not followed.
Insurance Commission of Western Australia v Container Handlers Pty Ltd & Ors (2004) 218 CLR 89; State Government Insurance Commission v Wagner (1993) 62 SASR 175; Carruthers v Pinder [2005] SADC 122; Heath v Corporation of the City of Tea Tree Gully & Anor (1996) 66 SASR 548; Motor Accident Commission v ANI Corp Ltd (1997) 26 MVR 57; Transport Accident Commission v Iacuone [1998] VSC 192; Transport Accident Commission v Treloar & Others [1992] 1 VR 447; Government Insurance Office of NSW v R J Green and Lloyd Pty Ltd (1966) 114 CLR 437; Commercial and General Insurance Co. Ltd v Government Insurance Office (NSW) (1973) 129 CLR 374; Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500, considered.

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES
Damages assessed pursuant to Wrongs Act 1936.
Wrongs Act 1936 s35A(1), referred to.
Husher v Husher (1999) CLR 138; Cole v Ellis (1992) 50 SASR 481; Van Gervan v Fenton (1992) 175 CLR 327, considered.

EVANS v REEVE
[2008] SADC 63
Factual Background

On 7 May 1997 the plaintiff transported a tractor to the defendant’s premises in order to have the defendant carry out certain repairs. The tractor was transported on a trailer which was in turn towed by the plaintiff’s truck. The defendant directed the plaintiff to reverse the truck and trailer onto a concrete platform at the top of a steep driveway. The defendant said that he would chock the wheels of the truck and trailer. He did not do so. The plaintiff climbed onto the trailer and started the tractor. He then released the clutch causing the tractor to jolt. That was sufficient to cause the truck to commence rolling down the driveway. The plaintiff, fearing injury, jumped from the trailer and fell awkwardly, injuring his right leg. The preceding constitute findings I make on the evidence called.
The Action
The matter proceeded in a somewhat unusual way. Proceedings were instituted on 4 May 2000. Initially there were two other defendants. A notice of discontinuance was filed in respect of them on 30 November 2000. The remaining defendant, although initially represented by solicitors, did not file an appearance, and ultimately a default judgment was obtained on 10 October 2005. The trial proceeded as an assessment of damages in the absence of the defendant.
Basis of Assessment of Damages
There remains an issue as to the basis of such assessment. Are the plaintiff’s damages to be assessed at common law or does s35A of the Wrongs Act 1936,[1] with the consequent restrictions on damages, apply? In the event that injuries sustained by the plaintiff arose from a motor accident, damages will be assessed pursuant to s35A. The plaintiff contends that his injuries did not arise from a motor accident. I do not regard him as bearing a positive onus of establishing that, but it is necessary for me to determine whether or not the plaintiff’s injuries did so arise.
[1] That being the operative legislation at the time the cause of action arose (later Civil Liability Act 1936).
The Operation of s35A(5)
“Motor accident” was defined in s35A(6) of the Wrongs Act as meaning “an incident in which injury is caused by or arises out of the use of a motor vehicle”.
In Transport Accident Commission v Iacuone,[2] a decision based on beneficial legislation which defines “transport accident” as meaning “an incident directly caused by the driving of a motor car...”[3] Mandie J identified a number of propositions relevant to the interpretation of the Victorian section including the following:
·the words “directly caused by” do not mean “solely caused by”,[4]
·an injury might be held to have been “directly caused by” the driving of a motor vehicle even though it was not produced by any collision or other physical contact between the person injured and the vehicle and, accordingly, an injury need not occur in the course of the driving of a motor vehicle in order that it may be said to have been directly caused by the driving;
·a claimant injured in an incident occurring after the driving of a motor vehicle must demonstrate a temporal or other connection between the injury and the incident on the one hand, and the driving on the other, sufficient to prove that the driving directly caused the injury and the incident.[5]
[2] [1998] VSC 192 judgment of Mandie J delivered 18 December 1998.
[3] Section 3(1) of the Transport Accident Act (VIC).
[4] Mandie J cited with approval the remarks of Lord Shaw in Leyland Shipping Co v Norwich Union Fire Insurance Society [1918] AC 350, 369:
To treat proxima causa as the cause which is nearest in time is out of the question. Causes are spoken of as if they were as distinct from one another as beads in a row or links in a chain, but - if this metaphysical topic has to be referred to - it is not wholly so. The chain of causation is a handy expression, but the figure is inadequate. Causation is not a chain, but a net. At each point influences, forces, events, precedent and simultaneous, meet; and the radiation from each point extends infinitely. At the point where these various influences meet it is for the judgment as upon a matter of fact to declare which of the causes thus joined at the point of effect was the proximate and which was the remote cause.
[5] I bear in mind the observation made in ICWA v Container Handlers per Kirby J at para 63 “although cases in other states may be useful when considering whether death or injury is a consequence of the driving of a vehicle, those cases must be read in the light of the legislative history and purpose of the Act.”
The term “arising out of the use of” a motor vehicle is a term which has been interpreted very widely, for example, as including loading operations on a vehicle,[6] a mobile crane operating as a fixed crane,[7] and injuries caused by a fire lit by a child in a stationary motor vehicle.[8]
[6]    Government Insurance Office of NSW v R J Green and Lloyd Pty Ltd (1966) 114 CLR 437.
[7]    Commercial and General Insurance Co. Ltd v Government Insurance Office (NSW) (1973) 129 CLR 374.
[8]    Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500.
The definition of motor accident in s35A(6) was subject to s35A(5) of that Act which provided:
for the purposes of this section, an injury shall not be regarded as arising from a motor accident if it is not a consequence of: -
(a) the driving of a motor vehicle; or
(b) a vehicle running out of control; or
(c) a person travelling on a road colliding with the vehicle when the vehicle is stationary, or action taken to avoid such a collision.
In this case it is therefore necessary to consider the effect of s35A(5) on the definition of “motor accident” in s35A(6).
In State Government Insurance Commission v Wagner[9] King CJ said of the expression “in consequence of”:
It is difficult to understand why the drafter varied the expression. "In consequence of" may have been intended to embrace in a single expression the notions of "caused by" and "arising out of". It may be true that the expression "in consequence of" emphasises the sequential as distinct from causal nature of the required link to a greater extent than the expression "caused by or arising out of" but, despite examples advanced by the Solicitor-General, I find it difficult to envisage concrete examples in which bodily injury could be said to be "in consequence of" driving although it could not at least be said to be "arising out of" the driving.
[9] (1993) 62 SASR 175 at 176.
Ultimately King CJ left open the question of whether the expression “in consequence of” was wider than the words “caused by or arising out of the use of”.
In Motor Accident Commission v ANI Corp Ltd[10] Cox J in the Full Court held that sub-section 35A(5) limited the scope or meaning that would otherwise be given to the expression “caused by or arising out of the use of”.[11]
[10] (1997) 26 MVR 57 at 63-64.
[11] In doing so he refused to follow the dicta of Olsson J in State Government Insurance Commission v Wagner (at 179) where Olsson J articulated a two-stage test to be applied for the purpose of determining whether liability arises under the statutory cover, in the following terms:
In the first instance apropos the particular fact situation the question must be asked: “Did any relevant liability in respect of bodily injury ‘arise out of the use’ of the vehicle in question?” in the sense in which that phrase is used in the Schedule.
If the answer to that question is in the affirmative a second question must then be posed and answered. That question is: ‘Has it been demonstrated that the bodily injury is not a consequence of the driving of the vehicle?’
In WorkCover Corporation v Reiter[12] the respondent was injured in the course of his employment whilst unloading wool bales from a stationary trailer which was attached to a prime mover. The motion of the driving of the prime mover had destabilised a bale of wool. As the bale was unloaded it fell from the trailer, striking and injuring the respondent.
[12] (1997) 70 SASR 347. The section which fell for consideration was s99(3) of the Motor Vehicles Act, which is in identical terms to s35A(5) and (6) for present purposes.
The trial judge, Olsson J, concluded that it may properly be said that the injuries sustained were, in the legal sense, a consequence of the driving of the vehicle in question.
The appeal to the Full Court was dismissed.[13] Lander J in discussing the term “a consequence of” referred with apparent approval to the comments of the trial judge:[14]
"The word "consequence" imports yet a wider nexus with the direct act of driving ...
"Wagner established the concept that what is contemplated by the section is something more than a mere temporal connection with a physical act of driving. There must, in a real sense, be a direct and proximate relationship of cause and effect between the act of driving and the injury in question. As I there pointed out, the concept of driving is clearly sufficiently broad to encompass ancillary activity such as acts preparatory to the use of controls to direct the movement of the vehicle, or to acts necessary to make a vehicle safe and secure at the end of a journey."
[13] per Lander J with whom Doyle CJ and Bleby J agreed.
[14] p 364.
King CJ in Wagner expressed a similar view:
I have no difficulty in accepting that injury is in consequence of driving if it is caused by some act, such as adjusting a seat belt, which is preparatory to driving and is immediately connected with the intended driving. The same can be said of actions subsequent to the driving but flowing from it and closely connected with it, such as applying a locking device or handbrake or closing windows immediately after bringing the vehicle to a standstill even after switching off the motor.[15]
[15] p 176.
The definition of motor accident contained in s35A(6) as limited by s35A(5) whilst intended to limit the circumstances in which claims may be made nevertheless contemplates a wide range of factual situations.
Question of Fact
As was observed in Heath v Corporation of the City of Tea Tree Gully & Anor, the issue of whether an injury is a consequence of the driving of a motor vehicle is a question of fact, and further, if there is evidence to support a finding to that effect, an appellate court will not readily interfere with it.[16]
[16] Heath v Corporation of the City of Tea Tree Gully & Anor (1996) 66 SASR 548 per Cox J at 550.
I agree, with respect, with the description by Lander J, in WorkCover v Reiter, of the approach to be taken:[17]
It is not necessary to talk of tests of activity or proximate cause or anything of the kind. It is only necessary to determine whether upon the facts the injuries or death were a consequence of any of the matters in s 99(3). Millhouse J suggested in Wagner that a construction of s 99(3) which requires an examination of the facts in every case is undesirable, but for the reasons I have given I disagree. I agree with respect with what Cox J said in Heath v Tea Tree Gully City Corporation and more recently in Motor Accident Commission v ANI Corporation Ltd.
[17] p 366. Observations to the same effect were made by Kirby J said in ICWA v Container Handlers (2004) 218 CLR 89 para 118:
Hard and fast rules cannot be provided by particular instances. Cases, such as the present, may sometimes suggest the way that courts should approach the statutory language from the standpoint of achieving its purpose. Nevertheless, individual instances are no more than that. They do not afford binding precedents to be used in resolving cases involving different facts. Inevitably, borderline cases will continue to present.
The Plaintiff’s Argument
Counsel for the plaintiff strongly urged me to find that the plaintiff’s injuries did not arise from a motor accident, and in the course of argument sought to rely on two decisions in particular, Clyne v Gulbin[18] and Insurance Commission of Western Australia v Container Handlers Pty Ltd& Ors.[19]
[18] (1995) 65 SASR 397.
[19] (2004) 218 CLR 89.
I will deal with the latter first. In that case the driver of a truck had parked his truck on the side of the road, and used a hydraulic jack to raise the vehicle in order to remove wheels and chain up an axle, the wheels having become damaged during the driving of the vehicle. A passenger assisting him was injured when the jack slipped. The passenger successfully claimed damages in an action for negligence against the owner of the vehicle, and the owner in turn made a claim for indemnity pursuant to the compulsory third party motor vehicle insurance policy.
The Motor Vehicle (Third Party Insurance) Act 1943 (WA) required, by s4(1), that motor vehicles be insured “in respect of the death of or bodily injury to any person directly[20] caused by, or by the driving of, the motor vehicle”. Section 3(7) further provided that “the death of or bodily injury to any person shall not be taken to have been caused by a vehicle if it is not a consequence of the driving of that vehicle or of the vehicle running out of control.”
[20] The word “directly” of course does not appear in the definition under consideration in the present case.
The Full Court of the Western Australia Supreme Court found the insurer liable. The insurer successfully appealed to the High Court.
McHugh J, in considering the effect of the statutory scheme, came to the conclusion that s3(7) limits rather than defines or excludes the operation of the statutory policy. He said:[21]
If the indemnity is activated only because the death or bodily injury was directly caused by the vehicle, s3(7) makes it necessary to determine whether the death or injury was a consequence of the driving of the vehicle or of the vehicle running out of control. Thus, s3(7) limits the scope of the words “directly caused by...[a] vehicle” in s6(1)(b) and the statutory policy by imposing an additional requirement. Even if the vehicle directly caused the death or bodily injury, the statutory policy applies only if the person suing on the indemnity also shows that the death or bodily injury was a consequence of the driving of the vehicle or of the vehicle running out of control.
The word “consequence’ is an ordinary English word and should be interpreted as such. The Australian Oxford Dictionary defines “consequence” as “the result or effect of an action”. It is therefore necessary to determine whether a reasonable person, properly instructed as to the meaning of s3(7), would regard the death or injury as an effect of the driving of the vehicle.[22]
The statutory context of the words tends against the view of Olsson J in Wagner that the injury must result from the driving in terms of proximate cause and effect. To equate consequence with proximate cause is tantamount to saying that there must be a direct, or dominant or immediate connection between the driving and the death or injury. If the words “in consequence of” were given that interpretation, the first limb of the statutory formula would again merge with the second. The legislature has chosen to use the term “a consequence” in s3(7) in preference to the terms “direct cause” or “proximate cause”; in doing so, it is likely that it intended the term “a consequence” to have a different meaning from “direct cause” or “proximate cause”.[23]
[21] para 30.
[22] para 43.
[23] para 44.
In my view the decision in ICWA v Container Handlers ultimately turned on the particular facts in that case and does not support the plaintiff’s proposition that the injury in the present case was neither a consequence of the driving of a motor vehicle, nor a consequence of the vehicle running out of control, for reasons I elaborate upon below.
The plaintiff contended that further support for his proposition that this was not a motor accident was to be found in the decision in Clyne v Gulbin,[24] where a claim for damages was made by the driver of a motor vehicle who was injured when his motor vehicle collided with a cow on a country road at night. On appeal from a Magistrate, Millhouse J found that the plaintiff’s injuries arose “out of the use of” the motor vehicle within the meaning of s35A(6) but, on the basis that the plaintiff was not liable at all for the collision, held that the injury was not a consequence of the driving of a motor vehicle within the meaning of s35A(5). Millhouse J said:[25]
The respondent’s injuries were not a consequence of his driving. He did not cause them by his driving. He was not at all responsible for the accident. The accident was “a consequence of” the appellant’s negligence in letting his cow escape on to the road ... If the respondent were [negligent], then it would be much easier to argue that his injuries were a consequence of the driving, at least in some part (and any part might be enough). I am inclined to think that had Mr Bell been able to show the respondent guilty of contributory negligence then he would have succeeded in his argument that this was a motor accident. [my addition]
[24] (1995) 65 SASR 397.
[25] p 399.
Counsel for the plaintiff pointed out that Clyne had been followed in Carruthers v Pinder[26] where the plaintiff was injured whilst negotiating a roundabout. The defendant who was riding a bicycle had ridden across the plaintiff’s path. The plaintiff braked, and fell from his motorcycle. There, as here, the defendant did not file answering pleadings, and the action proceeded as an assessment of damages. However, unlike here, there the defendant did participate in the trial. The learned trial judge said:
I find that the subject accident was not a consequence of Mr Carruthers’ driving of his motorcycle, but a consequence of the riding and management of the bicycle by Ms Pinder. The question of contributory negligence on the part of Mr Carruthers does not arise. Accordingly, I find that s35A(1) of the Wrongs Act 1936 is not relevant to the assessment of damages.
[26] [2005] SADC 122 unreported judgment delivered 16 September 2005.

Here the plaintiff contends that the injury was a consequence, not of the driving of a motor vehicle, or a motor vehicle running out of control, but rather a consequence, amongst other things, of the defendant’s failure to secure the vehicle, and failure to provide a safe and sufficient parking area.
I respectfully disagree with the conclusion reached in Clyne v Gulbin insofar as that decision may stand for the proposition that the question of whether the person in charge of a motor vehicle was at all negligent, in a single vehicle collision, is determinative of the question as to whether the incident was a motor accident, within the meaning of the Wrongs Act. That is too restrictive an interpretation of the limiting phrase “a consequence of”.
The problem with the approach adopted in Clyne v Gulbin is demonstrated in the following passage from the judgment of the Court of Appeal in Victoria in Transport Accident Commission v Treloar and Others[27] which considered the definition of transport accident in the Victorian legislation. As I have said section 3(1) of the Transport Accident Act (VIC) defines “transport accident” to mean “an incident directly caused by the driving of a motor car ...” In the joint judgment of McGarvie and Gobbo JJ their Honours said:
For years courts have been deciding whether incidents producing injury were caused by features of the driving of a motor car. The fact that most such decisions were made in the context of negligence claims does not detract from the fact that courts, applying the ordinary principle of causation at common law, have decided whether such incidents were or were not caused by features of the driving of a motor car. Sometimes the issue was decided free of any accompanying negligence such as a decision that the incident was caused by a feature of the driving but that in the circumstances the driver was not negligent.
[27] [1992] 1 VR 447 at 450.
My view is reinforced by the observation made by Lander J in WorkCover v Reiter[28] in relation to the trial judge’s finding that the real causative element was the destabilisation of the wool bales on the truck due to the driving of the vehicle:
...I do not think it was necessary to decide that it was a causative element. The question to be decided was whether the injuries were a consequence of the driving.
What is being addressed here is not a question of the respondent's negligence but a question of whether the bodily injuries were a consequence of the driving of the motor vehicle.
[28] pp 366 and 367.
And further reinforced by the following from McHugh J in ICWA v Container Handlers:
In my view, cases which deal with causation in tort provide little assistance in the present appeal. Those cases consider the causal connection between a particular breach of duty and a particular loss or damage. As I have stated, under the Act it is necessary to establish a link between the driving of the vehicle and the death or bodily injury in question, not between the basis for liability and the death or injury.[29]
[29] p 106.
I do not therefore consider that resolution of the issue of whether or not the plaintiff was negligent determines the issue of whether the injuries suffered by the plaintiff arose as a consequence of the driving of a motor vehicle or of the vehicle running out of control.
Was the Plaintiff negligent in any Event?
Unlike in the present case, in Carruthers the defendant consented to the entering of an interlocutory judgment for damages to be assessed, and thereby conceded that there was no contributory negligence on the part of the plaintiff.
The situation is somewhat different here, where judgment was obtained by default. Whilst it is not open to me to reduce the plaintiff’s damages by virtue of a finding of contributory negligence, I do not regard myself as precluded from giving consideration to the issue of whether the plaintiff could be regarded as having contributed to the occurrence of the incident, should that exercise be necessary to assist in the determination of the proper approach to the assessment of damages.
The plaintiff’s own evidence was that having heard the defendant say that he would chock the wheels of the truck, and having seen the defendant carrying the chocks, he assumed that that had been done and proceeded to attempt to drive the tractor off the trailer, without checking or receiving confirmation from the defendant that the task had been attended to. Even if, contrary to my view, the approach in Clyne were to be regarded as correct, insofar as might be necessary I would regard the plaintiff as having been negligent in the sense of having contributed to the occurrence of the incident, for the purposes to which I have referred.
The Incident
Against that background I turn to a consideration of the incident in question.
Pursuant to s5 of the Motor Vehicles Act 1959, “motor vehicle” is defined to mean –
(a) a vehicle, tractor or mobile machine driving or propelled or ordinarily capable or being driven or propelled by a steam engine, internal combustion engine, electricity or any other power, not being human or animal power; and
(b) a caravan or trailer,
but does not include a mobile machine controlled and guided by a person walking, or a vehicle run upon a railway or tramway:
Here the involvement of two motor vehicles is to be considered. The tractor on which the plaintiff was seated is a motor vehicle. The truck which was used to tow the trailer on which the tractor was located, is also a motor vehicle.
Can the injury be said to have been a consequence of the driving of the tractor? The plaintiff’s evidence was, and my finding is, that the jolt, which was caused by releasing the clutch on the tractor as the plaintiff commenced driving the tractor off the trailer, in some manner dislodged the truck and trailer from the parked position, causing them to commence rolling. As the plaintiff said:
I put it in low first and when I disengaged the clutch just that jolt from the tractor was enough to break the park on the truck...being, I guess, a heavy piece of equipment it was different to a car, it was a more aggressive jolt, I guess, and that caused – it jolted the truck and trailer and it broke the park on my truck and the truck rolled....
In that sense the resulting injury might be said to be a consequence of the driving of the tractor.
Can the injury be said to have been a consequence of the truck running out of control? Had the defendant, for example, parked the truck and failed to engage the parking brake, with the result that the truck commenced rolling down the steep driveway, causing the plaintiff to jump from the trailer in the agony of the moment, then there could be little doubt in my view that the injury was a consequence of the vehicle running out of control.
Is the situation any different where, as I find here, the defendant, rather than failing to engage the hand brake, had failed to chock the wheels of the truck and trailer?
Conclusion
I find that the injury occurred in a motor accident, in that it was caused by or arose out of the use of a motor vehicle within the definition contained in s35A(6) of the Wrongs Act. Further I find that the injury was a consequence of the driving of a motor vehicle within the meaning of s35A(5)(a), in the sense that the driving of the tractor caused the truck and trailer to commence rolling down the steep drive; and further that the injury was a consequence of a motor vehicle, namely the truck, running out of control, within the meaning of s35A(5)(b)
Accordingly damages fall to be assessed pursuant to the Wrongs Act 1936.
The Assessment of Damages
Plaintiff’s Background
The plaintiff was born on 23 March 1965 and was 32 years of age at the time of the injury, and 41 years of age at the time of trial. In 1983 he obtained work as a cellar hand with Penfold Wines and remained in that employment until June 1995. During the course of his employment he had studied part-time and ultimately worked in the laboratory, and in the area of quality control.
The plaintiff’s work in the wine industry in the laboratory involved being on his feet for long periods at a time, and as a cellar hand involved dragging hoses, climbing on tanks, and moderately heavy lifting.
The plaintiff gave evidence, and I accept, that prior to the subject incident he had enjoyed good health, had participated in martial arts although many years ago, and did not have any difficulties in carrying out the physical aspects of his work at Penfold Wines.
In 1993, whilst still employed by Penfold Wines the plaintiff had purchased land at Nuriootpa. When he left Penfold Wines in 1995 he set up a wrecking business on that land. The plaintiff gave evidence that he was building up that business, and that by virtue of his contacts in the drag racing industry and relationships in the automotive trade in the local area and in Adelaide, he anticipated that the business would have been successful.
He had commenced the business whilst still at Penfolds, working after hours in that business. He advertised for car wrecks in the local papers on the basis that he would remove such wrecks without charge. He spent time after his usual working hours and on weekends building up stock, including going to damaged vehicle auctions and the like. The work involved was physical work, both in the transporting of the vehicle bodies, and in removing vehicle parts. He had no difficulty carrying out such work. From the time he started the business he gave evidence that the volume of business was steadily increasing up until the time of the subject accident. At the time of the subject accident he was not employing any additional labour. He and his wife had intended that she give up her employment in the wine industry, to work part-time in the business including preparing the book work for the business.
In May 1996 the plaintiff sustained a back injury in an unrelated motor accident. The plaintiff was hospitalised for one or two days as a result of that back injury, and was on light duties for a period thereafter. It was some eight weeks before he was able to return to his usual work activities in the wrecking business. He received damages in the sum of approximately $10,000 in respect of that accident although I have no information as to the basis of that settlement. I do not regard that injury as impacting on his present claim for damages.
The Subject Injury
Immediately following the injury the plaintiff was taken to the Angaston Hospital and saw the doctor on duty. He was then transported to the Royal Adelaide Hospital where he remained for eight days. Reports of Dr Peter Lewis, Orthopaedic Surgeon, were tendered. He recorded that the plaintiff’s ankle injury was treated by open reduction and internal fixation.
Whilst in hospital the plaintiff was able to call on the assistance of a friend who attended to open the wrecking business for two hours each evening and on Saturday mornings. That arrangement persisted for about six weeks. The plaintiff compensated his friend partly by payment, and partly by the provision of car parts. About eight weeks after the incident the plaintiff had returned to the wrecking business full time. However he was not able to attend to the sale of car parts, which required removal of parts from car wrecks, with the same expediency as he had before the accident. He had difficulty in that he was unable to climb under vehicles or do any heavy lifting. He had initially returned to work using crutches, and after the need for crutches ceased, was still in plaster.
The plaintiff also required assistance provided by his father-in-law who attended to mow lawns and carry out some gardening.
Despite having suffered the subject injuries in late 1997 the plaintiff purchased a battery reconditioning business. He paid $77,000 for the business. Documentation relating to the sale of the business was tendered. The plaintiff in making the decision to purchase the business, in part relied on the trading statement provided by the vendor. The trading statement showed a net profit, without provision for proprietor’s wages, of $28,690 in the full financial year ending 30 June 1996, and $38,121 in the full financial year ending 30 June 1997. That business was described by the plaintiff as an Adelaide based business which he proposed to run from Gawler.
The plaintiff did not see Dr Lewis again until December 1999, when he, the plaintiff, was considering selling one of his businesses because he was not coping with the ankle injury. The plaintiff’s ankle was swollen and the foot was in an externally rotated position. Dr Lewis reported a significant restriction of movement.
The plaintiff said in evidence that he found the workload in operating the battery business difficult. The work was heavy and he experienced pain in his ankle. He found that he was spending three days a week on the road with customers, servicing customers at their premises. He continued to operate that business between 1997 and 2000 but was having ongoing difficulty because of pain in his ankle. He devoted three days per week to the battery business and three days per week to the wrecking business. The plaintiff also sought some assistance from an employee, one Stuart Davey, and from his nephew Nigel Goggoll, in the wrecking yard business.
In February 2000 the plaintiff was further disabled for a period due to the surgical removal of plates and screws. He had earlier engaged the services of one Joe Illich who commenced work in the wrecking business in November 1999, underwent a month of training with the plaintiff, and thereafter looked after the servicing of customers. Mr Illich was paid a total of $13,000. The plaintiff returned to work a couple of weeks after the procedure on 4 February 2000, but was only able to work behind the counter and later progressed to very light work. Because of his ongoing difficulties ultimately the plaintiff closed the wrecking business down and leased the workshop out. He sold the parts, mostly for scrap.
The plaintiff attempted to build the battery business up to similar profit levels to those enjoyed by the previous owner, but was unable to do so. The trading statement for the full financial years ending 30 June 2002 and 30 June 2003 showed trading profits of $14,911 and $19,239 respectively. He gave evidence that he sold the business in January 2004 for $30,000 and “at a substantial loss”. He sold it because he needed to undergo an arthrodesis and anticipated that he would not be able to physically handle the work involved in the battery business.
In February 2004 the plaintiff underwent an arthrodesis of the ankle. The screws from the region of the fracture were removed in a later procedure. The arthrodesis has been successful in terms of reducing the ankle pain, and increasing general mobility, although the range of motion at the ankle joint has been significantly restricted.
Dr Lewis’ Evidence
Dr Lewis suggested in his report of 12 September of 2005 that the plaintiff did not at that stage require further surgical intervention, but might benefit from the use of orthoses and appropriate footwear, and may eventually require physiotherapy treatment. He described the plaintiff as being at risk of increased degenerative change occurring at the subtalar and mid foot regions. He suggested that the plaintiff avoid jumping, running, squatting, lifting and twisting as much as possible.
Dr Lewis was unable to assist with a request for an estimate of the annual costs of using orthoses and appropriate footwear, and whilst he expressed the view that there may be some need for further physiotherapy, he was unable to give a projection of the frequency or the likely cost of such treatment. Whilst there is an increased likelihood of degeneration he expressed the view that that might occur over a protracted period of between ten and thirty years, which might require further surgery but is usually best treated using appropriate footwear and support.
Dr Lewis advised the plaintiff to take a less physically demanding job. He did not consider that it was sensible for the plaintiff to continue in the automotive wrecking business or the battery reconditioning business.
Dr Lewis expressed the opinion that the plaintiff “may require a fusion of the subtalar joint”. He was only able to express the view that the surgeon’s fee for such a procedure would be about $400.
He considered that the plaintiff’s work as a forklift attendant was better suited to him by reason of the injury.
He was not able to say that there was any likelihood that the injury to the plaintiff’s right leg would affect the function in his other leg by reason of additional load.
He said that the plaintiff would not be wise to undertake labouring work of any sort particularly involving lifting and carrying, or work involving standing and lifting for long periods of time. He qualified that by saying that the plaintiff could possibly do such work but given his relative youth such work would be more likely to bring on a deterioration of his condition. He expressed the view that the plaintiff had suffered a significant loss of limb function.
I accept that the plaintiff, by virtue of the subject injury, is not fit for his former employment at Penfolds and is not physically able to operate the wrecking or battery businesses.
The Plaintiff’s Residual Working Capacity
Following the arthrodesis and the initial recovery period thereafter, the plaintiff sought employment through a labour hire company and obtained work as a forklift attendant at Vinpak where he has remained in employment. He frankly described himself as being able to handle that work well because he is not required to stand. He enjoys the work. He described the condition of his injury as having improved to the point where he is not in constant pain, and only experiences pain in the ankle if he does too much. He said “I am pretty good now. I don’t have pain all the time. The only time my ankle bothers me now is if I overdo it. I just – obviously I am careful when I jump off the forklift. Sometimes I am a little bit stiff and sometimes I’m not, but generally I don’t have any problems carrying out my work.”
As to the plaintiff’s present employment he was asked by his counsel:
QThe job you have got at the moment is reasonably secure. There is no suggestion of retrenchment”
A     No. They offered voluntary redundancies about a year or so ago and streamlined the
company. My level is pretty safe”.
Q     Have you plans to train to ensure job security?
A     Yes. I am doing a certificate three in warehousing distribution at the moment.”
Q     With a view to what?
AThe company I work in, I think, has a lot of opportunity. I would like to – I see myself in a few years hopefully moving into a management position. A bit more desk work.
He has restrictions in climbing ladders or working on uneven surfaces, but again frankly conceded that he had painted his house recently. He found that standing on a ladder or climbing a ladder was difficult particularly when he was required to stand on a ladder for a long period.
He expressed the view that he could not work in a laboratory because of the requirement to stand for long periods, nor work as a cellar hand. His evidence in that regard was consistent with the view expressed by Dr Lewis. Because of his difficulty in walking the plaintiff has been reduced in his ability to exercise. He has gained weight. He is however able to ride a bicycle.
I turn to the award of damages under the different heads.
1 Non-Economic Loss
The injury was a painful one which required the plaintiff to be hospitalised for eight days initially. Following discharge from hospital the plaintiff was restricted in his ability to carry out his employment duties which was a source of frustration to him, and restricted in his ability to carry out recreational activities. In early February 2000 he underwent a further surgical procedure when the plates and screws were removed. In February 2004 he underwent a fusion of the right ankle and again required a period of recuperation of several weeks before he was able to resume physical activities. The right leg in the region of the ankle has the appearance of being swollen, and is scarred and discoloured. There are two scars about 10cm and 6cm in length on the inside of the ankle, and a long scar about 20cm in length on the outer side. The plaintiff contracted an infection after the plates were initially removed and that has resulted in the area of discolouration over the ankle. Whilst the outcome of the fusion has been relatively successful, he is left with a significant disability of the right leg below the knee and the condition will, if anything, deteriorate.

The award of damages for non-economic loss is regulated by Section 35A which provides:
(1)Notwithstanding any other law, where damages are to be assessed for or in respect of an injury arising from a motor accident, the following provisions apply:
(a) no damages shall be awarded for non-economic loss unless -
(i)the injured person’s ability to lead a normal life was significantly impaired by the injury for a period of at least seven days; or
(ii)the injured person has reasonably incurred medical expenses of at least the prescribed minimum in connection with the injury; and
(b) if damages are to be awarded for non-economic loss, they shall be assessed as follows:
(i)the injured person’s total non-economic loss shall be assigned a numerical value on a scale running from 0 to 60 (the greater the severity of the non-economic loss, the higher the number); and
(ii)the damages to be awarded for non-economic loss shall then be calculated by multiplying the prescribed amount by the number assigned under subparagraph (i);
I find that the plaintiff’s ability to lead a normal life was significantly impaired by the injury for a period of more than seven days.
I assign a value on the scale from 0 to 60, of 18. The prescribed multiplier for a 1997 motor accident is $1550. Accordingly the award of damages is $27,900.
2 Past Loss of Earning Capacity
The assessment under this head is by no means straightforward. The plaintiff had, some two years prior to the injury, commenced the automotive wrecking business to which I have referred. That business was operated in partnership with his wife. No claim has been brought on behalf of Mrs Evans. However it is apparent that the injured plaintiff was the principal of the business and the business relied almost entirely on his input, despite his wife performing some bookkeeping and related work. I will assess damages on that basis.[30] The profit and loss statements tendered by the plaintiff disclose the following:
[30] Husher v Husher (1999) CLR 138, Cole v Ellis (1992) 50 SASR 481.

Year Ending 30.6.1995 30.6.1996 30.6.1997 30.6.1998 30.6.1999 30.6.2000

Wrecking
($12,172)
($9,077) ($471) $10,883 ($398) ($9,745)

Retail Parts ($989) ($2,566)
($1,110)

Battery Reconditioning $12,518
(part year) $19,916 $15,554.

In 2001 the auto wrecking business and the battery reconditioning businesses appear to have been consolidated in the profit and loss statements. Extracting rental losses from the resulting figures show that the combined businesses made a loss of just over $1,000. In the year ending 30 June 2003 the combined businesses were at precisely break even point. Rental income however had increased to $13,200 less expenses of just in excess of $9,000 as a result of the plaintiff leasing out his workshop.
Whilst I accept that the plaintiff was a diligent and well motivated man, there are a number of imponderables in relation to the potential profit that the automotive wrecking business, and later the battery reconditioning business might have produced. As I have said in the two full years of operation in financial years ending 30 June 1996 and 30 June 1997 the wrecking business produced a loss. The accident occurred very late in the second period and could not have played a significant part in the outcome.
There was no evidence led on behalf of the plaintiff as to the hours per week worked by the vendor of the battery reconditioning business prior to the sale of the business to the plaintiff. The plaintiff was operating that business on a part time basis only. It is therefore difficult for me to assess the extent to which any lesser earnings by the plaintiff in that business were due to his injury, as opposed to: the reduced time he appears to have spent in that business, namely three days a week; his lack of experience in that business; and the fact that he was endeavouring to run what he described as an Adelaide based business, from Gawler.
The same difficulties arise in relation to the suggestion, ultimately left open by counsel for the plaintiff but not strongly pressed, that the plaintiff was entitled to damages to compensate for the loss made upon the sale of the battery reconditioning business, a sum said in submissions to be $40,000.
The plaintiff purchased that business, presumably knowing what was involved in the work at a time when he was still having difficulties with his injuries. He must have appreciated that the injuries might affect his ability to successfully run that business. He is however to be given credit for the fact that he has shown considerable enterprise, and has endeavoured to mitigate his loss by in effect purchasing a means of earning additional income. I do not make any separate allowance for the loss on the sale of the business. I will take that into account in what can only be a global award for past loss of earning capacity on a loss of chance basis.
As I have said, the plaintiff obtained work as a forklift operator in early August 2005. In the period of just under 11 months to 30 June 2006 he earned gross wages of $38,126, and net wages of approximately $30,000. He had until the time of trial continued in that employment and expected to continue in that employment indefinitely. I do not regard him as having suffered any loss of earning capacity, sounding in damages, from August 2005 to date.
One measure of the past loss can be derived from the wages paid to employees to take up aspects of the work that the plaintiff was not able to attend to. Counsel for the plaintiff tendered a bundle of wage books, cheque butts and the like. Doing the best I can to extract the wage figures from those records, a total of some $15,000 was paid. Those payments are in gross terms. I take that into account in making the global assessment of past loss of earnings. In doing so I also bear in mind that pursuant to s35A(1)(d) no damages are to be awarded for the first week for loss of earning capacity.
Having regard to the matters I have set out, and again doing the best I can on the information available, I award the sum of $100,000 for past loss of earning capacity.
3 Loss of Earning Capacity in the Future
Counsel for the plaintiff suggested an approach involving taking the plaintiff’s current net wage, using a multiplier calculated on either a 3% or 5% discount rate (depending upon my findings as to the appropriate method of assessing damages) and discounting the result by two thirds for contingencies and residual earning capacity. I have found that s35A applies and accordingly the multiplier must be calculated using the prescribed 5% discount rate pursuant to s35A(1)(e).
Having regard to the plaintiff’s evidence concerning his current employment, the stability of that employment, and his intention to undertake training and move into a more managerial position, I have come to the view that the better basis is to simply award a lump sum on a loss of chance basis.
I have made findings as to the plaintiff’s inability to carry out his pre-accident employment, and as to the range of duties from which he is precluded or would have difficulties performing by virtue of his residual disability. If he were to lose his current employment and be required to return to the open labour market, he would no doubt have difficulty competing for employment with other equally qualified but fully able applicants.
He is still a relatively young man whose legitimate expectations involve working for another 20 years or so.
Taking into account the evidence as to his disabilities, and as to his employment prospects, I award the sum of $125,000.
4 Voluntary Assistance
Section 35A(1) regulates the award of damages under this head and relevantly provides:
(g) no damages shall be awarded –
(i)to allow for the recompense of gratuitous services except services of a parent, spouse or child of the injured person; or
(ii)to allow for the reimbursement of expenses, other than reasonable out of pocket expenses, voluntarily incurred, or to be voluntarily incurred, by a person rendering gratuitous services to the injured person;
(h) damages awarded to allow for the recompense of gratuitous services of a parent, spouse or child shall not exceed four times State average weekly earnings;
Accordingly, assistance provided by the plaintiff’s father-in-law by way of mowing and gardening, or by the plaintiff’s nephew in the unpaid capacity, do not attract an award of damages. On the evidence, the only assistance which would attract such an award is that provided by the plaintiff’s wife. The evidence led on that topic related to the assistance she provided particularly immediately following the injury and following the two subsequent surgical procedures, when she had to both attend to their two children, and also prepare meals and provide domestic and nursing type assistance to the plaintiff. She also attended upon him in hospital although there was no evidence that she provided any physical care and assistance at that time.
No evidence was led as to the commercial cost of providing such assistance which is the appropriate loss for the calculation of such damages.[31]
[31] Van Gervan v Fenton (1992) 175 CLR 327.
Whilst s35A(2) permits an award of damages for gratuitous services in excess of the limit prescribed by s35A(1)(h) in circumstances where the court is satisfied by rendering gratuitous services a parent, spouse or child has saved or will save the injured person the cost of engaging another person to provide those services, I am not, on the evidence available, able to be so satisfied.
Again doing the best that I can, I award the sum of $2,500 under this head.
5 Future Assistance
The evidence was that the plaintiff’s condition may at some stage in the future deteriorate. The extent of that deterioration was not expanded upon in any great detail. Reference was made to the possibility of a further fusion in the future. The prospects of that being required, and the timing of that, were not elaborated upon.
The plaintiff gave evidence that he had painted the exterior and interior of his house but had difficulties working from ladders, climbing ladders and standing for long periods.
It may be that at some stage in the future he will be required to engage tradesmen to carry out work that he might otherwise have done. He may also require assistance from his wife from time to time.
Again the evidence is scant. I award the sum of $5,000 under this head.
6 Wilson v McLeay Damages
Whilst the plaintiff and his wife gave evidence of her visits to the plaintiff in hospital both following the initial incident and the following the surgical procedures, there was no evidence as to the cost of travel, or expenses incurred, or wages forgone as would be required to support an award under this head, and accordingly I am unable to make any award.
7 Medical Expenses
The only evidence tendered was a Health Insurance Commission notice of past benefits charge in the sum of $2,076.90. I award that amount.
8 Future Medical Expenses
There was evidence that the plaintiff used Voltaren from time to time, and evidence from Dr Lewis that the plaintiff may require physiotherapy. There was no evidence as to the frequency with which either may be required, nor the cost. The evidence as to the possible need for further surgical treatment was speculative. The only evidence as to costs was the surgeon’s fee of $400. In the circumstances I can only make a nominal allowance under this head and I award the sum of $1,000.
9 Interest
Pursuant to s35A(1)(k) no interest is to be awarded on damages for non-economic loss (or prospective loss). I award a lump sum in lieu of interest in relation to the award of past economic loss in the sum of $25,000, and in relation to the award for past voluntary services in the sum of $750, a total of $25,750.
Summary
1.Non-economic loss  $27,900
2.Past loss of earning capacity  $100,000
3.Loss of earning capacity in the future            $125,000
4.Voluntary assistance  $2,500
5.Future assistance  $5,000
6.Wilson McLeay Damages  nil
7.Medical expenses  $2,706.90
8.Future medical expenses  $1,000
9.Interest  $25,750
Total  $289,856.90
There will be judgment for the plaintiff in the sum of $289,856.90.

Year Ending	30.6.1995	30.6.1996	30.6.1997	30.6.1998	30.6.1999	30.6.2000
Wrecking	($12,172)	($9,077)	($471)	$10,883	($398)	($9,745)
Retail Parts	($989)	($2,566)	($1,110)
Battery Reconditioning	$12,518 (part year)	$19,916	$15,554.