Garrett v Ani Corp & Sgic (No 2) No. DCCIV-93-1687 Judgment No. D3551

[1997] SADC 3551

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Reasons of His Honour Judge Lunn

Hearing

16/01/97 to 17/01/97, 20/01/97.

Catchwords

DAMAGES Personal injuries - back - widening of pubic symphysis - fractured skull - 56 year old male driver - permanent back disability - 30% permanent loss of intellectual capacity - partial loss of taste and smell - impotence - unfit for pre-accident employment and heavy work - economic loss $45,200 past, $110,000 future - non ecomomic loss - s35a Wrongs Act - scale 11, $13,640 - future specials $5,000 - gratuitous services $1,000 - total assessment $253,092. INSURANCE
4th Schedule to Motor Vehicles Act - whether defendant entitled to indemnity from third party in respect of driving of its forklift - no finding possible as to nature and stage of unloading operations giving rise to the plaintiff's accident - third party had not discharged the onus on it to show that s99(3) of MVA operated to take the use of the forklift out of the 4th Schedule - cases considered - indemnity granted to defendant. PRACTICE AND PROCEDURE Adjournment of trial of assessment - date for trial of assessment fixed with right to apply to vary it but not sought - plaintiff's solicitors had not organised doctors for trial but had agreed with other parties to defer trial pending outcome of a third party claim - no proper grounds to order separate trial of assessment - caseflow management principles considered - adjournment refused. 50 year old male driver; Wrongs Act scale 11; Past economic loss $45,200.00; Future economic loss $110,000.00; Non-economic loss $13,640.00; Past special loss $78,252.00; Future special loss $5,000.00; Total assessment $253,092.00

Representation

Plaintiff RICHARD JOHN GARRETT:
Counsel: MR R HALLIDAY - Solicitors: ELSTON GILCHRIST

Defendant THE ANI CORPORATION LTD t/as AUSTRAL STEEL-EAGLE &; GLOBE:
Counsel: MR A PHELPS - Solicitors: PIPER ALDERMAN

Third Party STATE GOVERNMENT INSURANCE COMMISSION:
Counsel: MR R SOULIO - Solicitors: WARD &; PARTNERS

DCCIV-93-1687

Judgment No. D3551

6 February 1997

(Civil)

GARRETT v ANI CORPORATION & SGIC (No 2)

Civil

Judge Lunn

Refusal to postpone the trial on the quantum of damages

The relevant history taken from documents on the Court file is as follows. The plaintiff was injured on 12 November 1990 in the course of his employment with the defendant. He commenced this action on 1 June 1993. On 25 February 1994 the defendant issued a third party notice against the State Government Insurance Commission, which has since become the Motor Accident Commission, seeking indemnity against the plaintiff's claim. After a number of interlocutory hearings the action was listed for trial for 3 November 1995. For reasons which are not apparent on 4 October 1995 a Master made an order limiting the trial on 3 November to the issue of liability only.

The matter was called on for trial before me on 3 November 1995. There was some confusion about the pleadings on the third party notice. By consent I directed that the third party issues not be dealt with at the trial of the plaintiff's claim. After hearing evidence and addresses I reserved my decision. On 15 November 1995 I delivered reasons finding that the defendant had been negligent and that there had been no contributory negligence by the plaintiff. At the request of the parties I adjourned both the assessment of the plaintiff's damages and the third party issues to a date to be fixed for the parties to confer about them. At the request of the defendant a further directions hearing was held before me on 9 August 1996 when I gave directions for additional third party pleadings and adjourned the matter sine die for the parties to confer further.

I received a letter of 14 October 1996 from the plaintiff's solicitors which stated in part:

"We are instructed to apply for the matter to be relisted for further hearing in relation to assessment of damages and presumably the Defendant and Third Party will also seek a decision in relation to the issues flowing between them. As we understand it, you are not available to resume this matter until January 1997 and accordingly, we write requesting the matter be listed for further directions with a view of having the matter relisted for trial."

As a result a further directions hearing was held before me on 28 October 1996. Mr Duddy appeared for the plaintiff, Mr Phelps for the defendant and Mr O'Loughlin for the third party. The following extracts from the transcript correctly set out the relevant parts of what was said:

".... HIS HONOUR:Perhaps the next step is then what is the likely length of the trial to deal with the plaintiff's assessment of damages and the third party issues which I presume should be dealt with at the same hearing. .....

MR DUDDY:In terms of the medical evidence I would have thought a maximum of two days. I do not know whether the third party issues can be resolved in that time as well.

MR PHELPS:Half a day on the third party issues, it is a legal argument.

HIS HONOUR:The assessment of damages will presumably involve more evidence as to his damages.

MR DUDDY:Yes. There are a number of doctors but I hope to agree some matters with my friend, about of the tendering of the reports.

HIS HONOUR:Realistically we can expect that we can do both the assessment and the third party issue in two days. Is that right?

MR PHELPS:Well, it is completely up to the plaintiff. We will not be taking much of your time with the third party issue, ....

HIS HONOUR:At the moment the availability or the practical position is that it has got to be when I am in civil again. The only civil rostering I have got for civil at the moment is January of next year.

The available dates I have been given are either 16 or 17 January, or the possibility of 14 January.

MR PHELPS:the 16th and 17th would be fine with the defendant.

MR DUDDY:That creates a problem for the plaintiff in terms of both counsel and some of the doctors that I have made inquiries with. My instructions are to have the matter listed as soon as possible ....

HIS HONOUR:Yes, as far as counsel is concerned I mean the practical problem is that I am in criminal in February. I am on holidays in April. ... The chances are unlikely that I will be in civil in March. That would put the next available date, I suspect we're talking June if not January.

MR DUDDY:In those circumstances I think the plaintiff would like the dates in January.

........

MR O'LOUGHLIN:If we start on the 16th that is the only day.

HIS HONOUR:No, once I start we go to the finish of it. We have already had one part heard exercise in this trial, we are not going to have three.

MR PHELPS:Certainly.

HIS HONOUR:The 16th.

MR DUDDY:That is fine by me.

HIS HONOUR:All right, I direct the trial be listed to resume on 16 January 1997, on the issues of quantum of damages and the third party issues. .... If that proves utterly impossible for crucial doctors I suppose you had better come back to me fairly quickly. Ring my secretary in the next week or two and I will give you another early morning appointment to review what we do about it. But, at the moment, it will be listed for 16 January. ......"

On 28 October my secretary wrote to all solicitors stating:

"This is to advise that the above matter has been listed to resume hearing on the quantum of damages and third party matters on Thursday, 16 January 1997 at 10.15am."

There were no further communications from any party about the suitability of the dates set. Although the parties were not aware of it, the Chief Judge encountered considerable difficulties in the rostering of Judges for January in leaving me in civil so that I could deal with this matter, but he did so because it was an old action which had not been resolved within the time frame laid down by DCR2.03(2).

At the outset of the resumed hearing on 16 January 1997 new counsel for the plaintiff intimated that it was proposed on that day to proceed only with the third party issues and to have the assessment of damages further adjourned to a later date to await the result of those third party issues. He indicated that all parties were agreed on that course. When I referred him to my direction of 28 October that the assessment of damages was also to proceed on 16 January he intimated that that course was impossible because the doctors had not been arranged to give evidence and the medical reports had not been agreed by the third party. I intimated that as far as the Court was concerned the direction given on 28 October for the concurrent determinations of the third party issues and quantum was still on foot and I intended to proceed in accordance with it.

The plaintiff's counsel then applied in the alternative for an adjournment of the assessment of damages or of both the third party issues and the assessment of damages. The other parties did not oppose any such adjournment. I refused any adjournment except to the extent of not embarking on the assessment of damages until the following morning after completing the third party hearing. I indicated that I would later give these reasons for that ruling.

In these types of cases the usual course is for all issues to be determined at the one trial even if some of the issues may be of no consequence depending on findings upon other issues: Dunn v ETSA (1987) 139 LSJS 54 particularly at 61-62. In relation to third party proceedings that is now the normal position under Rule 37.05(a) and it does not depend upon any special direction to that effect. The general policy of the Courts has been not to allow separate trials of limited issues unless there is some very good reason for them: see "Civil Procedure South Australia", para R75.02.10. The fragmentation of the trial process usually produces substantial delays and extra costs, although it must be balanced against any advantages which might result in the circumstances of a particular case. It is not usually in the interests of caseflow management and the best utilisation of the Court's resources to have multiple listings for several trials of the one action. While it is not particularly unusual to have two trials of different issues in the same action it is extremely rare to allow three separate trials within the one action, and especially where the total trial time is only about 3-4 days. My acquiescence at the trial in November 1995 to the parties' request to delay the trial of the third party issues was based on a belief that those third party issues would be dealt with concurrently with the assessment of damages. It is highly unlikely that I would have agreed to it if it had been made clear that it would require a further third trial separate from the assessment of damages. I took the view that as there had to be a second trial in any event because of the Master's order separating the issue of the quantum of damages it was of no particular consequence whether the third party issues were dealt with at the first trial at or the second trial. If I did not make my views about the undesirability of any third trial plain at the hearings in November 1995, I certainly was explicit about them in my comments at the directions hearing on 28 October 1996 as set out above. It was asserted in the course of argument that a determination of the third party issues was desirable before the trial of quantum of damages was embarked upon because it could resolve the issue as between the plaintiff and the defendant and mean that separate counsel for the defendant and the third party would not have to attend on the trial of the assessment thereby saving some costs. However, that assertion was not correct as at the time at which I refused the adjournment. When the assessment was called on for hearing on the following day the plaintiff's counsel stated that there was still an assessment sought against the defendant under Section 54 of the Workers Rehabilitation and Compensation Act 1986 even if the third party proceedings failed and the defendant's counsel intimated that there were issues on the quantum of common law damages as between the defendant and the third party about the reasonableness of certain payments already made by the defendant. Those positions changed during the hearing of the assessment, but as at the time I refused to adjourn the assessment they were all live issues.

The plaintiff's counsel submitted that the assessment had to be adjourned because it would be unjust to the plaintiff to require him to proceed on it at that time when it had not been properly prepared for trial. He said that the plaintiff's solicitors had made a mistake, but he did not identify what that mistake was. No evidence was adduced about any such mistake. The only possible mistake of which I am aware was that the plaintiff's advisers incorrectly assumed that I would concur with the view taken by the parties that it was preferable for the third party issues to be determined before the assessment was embarked upon. However, I had made it quite clear at the hearing on 28 October that on the material then before me I was not prepared to direct other than a concurrent trial of the third party issues and the assessment of damages. It was not for the plaintiff's solicitors to ignore that direction either because they did not agree with it or because it was not feasible to present the plaintiff's case on damages on that occasion. I had expressly given them the right to come back to me in chambers if there were practical difficulties, but they did not see fit to do so. They put forward no excuse for not doing so. They did not seek to arrange the attendance of the necessary medical witnesses for the appropriate date which was quite inexcusable.

On the material properly before me on 16 January I did not consider it was proper to direct that there should be separate trials of the third party issues and the assessment of damages. If I had acceded to the application to adjourn the assessment, I would have been abrogating the Court's function of controlling its lists and ensuring proper caseflow management. Solicitors cannot be permitted to disregard a listing for trial because they consider it to be wrong or inappropriate. Their only option is to seek a variation of the direction from the Court or possibly to appeal against the order. However, they cannot ignore the direction, not prepare the matter for trial and then tell the Court that the trial must be adjourned because justice cannot be done to their client because of their default in not having prepared the case for trial.

I considered other options which were available to me in the circumstances of costs being ordered against the plaintiff's solicitors personally and of proceedings against them for contempt. As the other parties, possibly for their own reasons, were not opposing the course sought there would have been major difficulties in making an order for costs an effective remedy in the circumstances. While proceedings for contempt by a Registrar's summons under r93.03 may have been possible they would have been expensive and time-consuming. In the circumstances I considered the appropriate way for the Court to assert its authority was to refuse the adjournment, albeit with a deferral to the following morning, and, if the plaintiff's case could not then be properly presented on the assessment, to leave him to his remedy for breach of duty against his solicitors if he suffered loss by reason of their default.

In refusing the adjournment I had in mind that this was a necessary step to adopt if I was to invoke DCR2.09 on the hearing of the assessment if the plaintiff presented no evidence on the basis that his case had not been prepared for trial. DCR2.09 provides:

"Where any party does not proceed with the hearing of an action .... at the time fixed for such hearing, the Court may, ..... of its own motion, .... strike out the action .... for want of prosecution, and may do so in order to protect the integrity of (the) caseflow management system and to implement the Court's requirement that matters proceed at the time fixed for hearing notwithstanding that any injustice to the opposing party might have been avoided by an order for costs or some other order."

As it transpired the assessment proceeded to its conclusion, and so there was no occasion to consider invoking DCR2.09, but its potential operation was not to be circumvented by merely allowing an adjournment of the assessment.

I also acted under DCR2.04(d) which provides:

"To these ends:" (referring to the provisions of DCR2.01-2.03) ....

"(d) A trial date which has been fixed will not be cancelled or postponed unless the justice of the case, assessed having regard to the obligations of the parties pursuant to this r2, so requires."

"The justice of the case" is to be assessed having regard to the plaintiff's obligations under r2. Under DCR2.01 the requirements of DCR2 "are not intended to defeat a proper claim ..... of a litigant who is genuinely endeavouring to comply with the procedures of the Court", but here the plaintiff, through his solicitors, made no proper endeavour to comply with the direction of 28 October that the assessment was to proceed on 16 January. Insofar as the plaintiff's solicitors were relying upon some unsuccessful attempts to agree the medical reports they had not properly invoked the provisions of r54, and they must have realised that they were well outside of the time limits provided by that rule.

Insofar as United Motors v AGC (1991) 58 SASR 156 provided that the requirements of caseflow management are to be subject to the interests of justice that must now be read subject to the express requirements of the subsequent DCR2. While the default of the solicitor is not to be held against the client in the same way as the party's own fault, nevertheless, the fault of the solicitor is not irrelevant: Saunders v Esanda, Lander J, 31/5/96, Jud No S5631, unreported; Hembrow v (SA) Police, Lander J, 18/3/96, Jud No S5550, unreported, and in cases such as this it can sometimes be appropriate to visit the default of the solicitor upon the client. A solicitor cannot expect his client to avoid the consequences of the solicitor's default merely because the gravity of that default may be so great that it prevents justice being done to the client. In other words the magnitude of the solicitor's default, in itself, cannot necessarily make the client immune from its consequences.

Since making my ruling I have seen the reasons of the High Court of Australia in State of Queensland v J L Holdings Pty Ltd (14 January 1997, unreported). That case was decided on Federal Court of Australia Rules which were much more general than DCR2. Insofar as it lays down that the application of caseflow management principles must generally be subject to the attainment of justice it does not depart from what was said in United Motors v AGC (above). Whether what was said by the High Court is tempered by the express terms of DCR2 need not be pursued here. This is a far more extreme case of the Court needing to maintain the integrity of its listing procedures and to ensure compliance with its orders. Nothing said by the High Court in its context causes me to believe that my ruling was not correct.

Accordingly, I refused to adjourn the assessment and it proceeded to its conclusion.

Third Party issues

The defendant seeks indemnity against the plaintiff's claim under the third party insurance of its forklift in the terms of the Fourth Schedule to the Motor Vehicles Act 1959. Clause 1 of that Schedule provided:

"The insurer insures the owner of the motor vehicle and any other person who at any time drives the vehicle .... in respect of all liability that may be incurred by the owner or other person in respect of the death of, or bodily injury to, any person caused by, or arising out of the use of, the vehicle in any part of the Commonwealth."

However, the operation of clause 1 is limited by s99(3) of that Act which provides:

"(3) For the purposes of this Part and the Fourth Schedule, death or bodily injury will not be regarded as being caused by, or arising out of the use of a motor vehicle, if it is not a consequence of -

(a) the driving of the vehicle;

(b) a collision, or action taken to avoid a collision, with the vehicle when stationary; or

(c) the vehicle running out of control."

Whether an indemnity is to be given under the Fourth Schedule requires a two-stage process of evaluation. Firstly, 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 "yes", there is a further question, "Has it been demonstrated that the bodily injury is not a consequence of the driving of the vehicle?": SGIC v Wagner (1993) 62 SASR 175 at 179.

Here the first question must clearly be answered "Yes". The unloading of objects carried by the forklift arose out of its use: Muegel v Fast Line Freight Pty Ltd (1987) 45 SASR 20.

The real issue here is the answer to the second question. Debelle J said in Heath v Tea Tree Gully City Corporation (1996) 66 SASR 548 at 555 in respect of this question:

".... whatever is denoted by the words 'a consequence of', it must be more than a mere temporal relationship. It is not enough that the relevant activity immediately precedes or follows the activity of driving. The activity must also be one which is sufficiently closely connected with the driving of the vehicle in a mechanical or functional sense as distinct from a temporal sense. "

It is ultimately a factual issue about whether it was an act of driving the forklift, as distinct from some other activity involving the forklift, which was the substantial cause of the plaintiff's injuries.

In my reasons published on 15 November 1995 determining the issue of liability between the plaintiff and the defendant I made findings of fact about the circumstances relevant to the third party issues. I will not repeat those findings here. There was no further evidence adduced on the subsequent trial of the third party issues and they fall to be determined on the same evidence and findings as the issues between the plaintiff and the defendant. While I adhere to my previous findings they need to be amplified to some extent to deal with the third party issues. Some of the submissions made on the third party trial assumed that no further findings could be made on the evidence, but the findings made previously were only those necessary for the determination of the somewhat different issues between the plaintiff and the defendant.

As indicated in my previous reasons I was not impressed by the evidence of Ronald Hughes, the driver of the forklift. I gained the strong impression that he had no cogent memory of what actually led up to the plaintiff's injuries. I reject his version of what occurred, and in particular that he saw the plaintiff falling when he was lowering the tines onto the tray of the truck. His general credibility was impeached by his prior inconsistent statement to the investigator Mr Johnson and by his assertion that the pin was not in the tray of the truck at the time at which he was depositing the stillages in question. I am satisfied that he had no reliable recollection about the stage of the unloading process which had been reached when the plaintiff fell or about what had occurred in the few seconds beforehand.

I also reject the evidence of the plaintiff about the stage of the unloading process which had been reached when he fell. His evidence was a reconstruction of events and was contrary to the terms in which his counsel had opened his case on liability at the first trial.

There was no dispute that the forklift truck in question could perform two distinct functions. It could travel in a horizontal plane as a vehicle. By use of a different set of controls it could also raise and lower its tines in a vertical plane and also by the use of those controls it could tilt its tines. The raising and lowering of the tines was a function which it could perform quite independently of its functions as a vehicle. However, it was capable of being driven as a vehicle in a horizontal plane contemporaneously with moving its tines in a vertical plane.

On the law as laid down by the Full Court in SGIC v Wagner (above) and Heath v Corporation of the City of Tea Tree Gully (above) s99(3) of the Motor VehiclesAct will exclude the application of the Fourth Schedule where the forklift was being used to unload the stillages from its tines by moving those tines in a vertical plane as distinct from the forklift being driven in any way in the horizontal plane or through anything which was ancillary to driving it in that horizontal plane. What was intended immediately prior to the accident was that the forklift would carry the stillages on its tines to the edge of the tray of the semitrailer, raise its tines to lift the stillages above the level of the tray, and quite possibly above the height of the vertical pin so that the stillages could clear it, drive closer to the edge of the tray so that the stillages on the tines were over the tray, lower the tines so that the stillages were deposited onto the tray, reverse backwards so that the tines were extracted from under the stillages and in some unexplained way manoeuvre the stillages so that they were pushed into their desired positions on the tray relative to the other stillages which had previously been deposited there. It is possible that some of these activities in the horizontal plane occurred concurrently with other activities in the vertical plane. In these functions in which the forklift was being used to move the stillages only in a vertical plane it was not then being driven for the purposes of s99(3), but in other activities involving any movement in the horizontal plane which were interspersed with movements in the vertical plane, it was being driven as a vehicle within s99(3). On the view which I have taken of the evidence it is impossible to make any finding on the balance of probabilities as to the stage in the unloading process which had been reached when the top stillage on the load either fell or became unstable so as to cause the plaintiff to fall in an effort to avoid it, and so to be able to say whether the forklift was then being driven within the meaning of s99(3) or not.

The question of whether s99(3) operates here for the benefit of the third party thus becomes one of the onus of the proof. Unfortunately, the legal position on this is not clear cut. In SGIC v Wagner (above) at 180 Olsson J said:

"Although the question of onus does not loom large as a critical, practical feature of the instant case, .... The party who positively asserts the application of subs (3) of s99 of the MVA to a particular fact situation - once an affirmative response is given to the first question - necessarily accepts the onus of establishing that contention. The subsection is essentially an exclusionary provision."

In that case at 176 King CJ said:

"A question may arise in the future as to whether s99(3) .... is an interpretation clause which limits the meaning of the expression 'caused by or arising out of the use of a motor vehicle' in cl 1 of the Schedule policy or whether it effectually writes an exclusion clause into the policy. The characterisation of the subsection may have an impact on the onus of proof. No question of onus arises or was argued in these proceedings as the relevant facts are clearly established. Questions of onus can therefore be left for another occasion."

The third Judge in the Full Court, Millhouse J, did not avert to the issue. As Olsson J made a pronouncement upon it I consider that I should follow what he said. Thus as the third party has not shown that the injury was not a consequence of the driving of the forklift within s99(3), the Fourth Schedule operates to give the defendant an indemnity from the third party against the plaintiff's damages.

Assessment of damages

My findings on the third party issues mean that s54(2) of the WorkersRehabilitation and Compensation Act 1986 applies so that any limitation on the plaintiff's damages under s54(1) of that Act is not applicable. This means that the plaintiff's damages are to be assessed at common law subject to the restrictions in s35a of the Wrongs Act 1936.

Ultimately all of the medical reports were agreed. The only doctor to give oral evidence was Dr James, the plaintiff's general practitioner for many years. I accept his evidence. I accept the evidence of the plaintiff and his wife on matters of damages except where they are inconsistent with that of Dr James.

The plaintiff was born on 11 March 1940 and was 56 years of age at the second trial. He had a minimal education, but had a good work history mainly as a truck driver. In 1976 he commenced employment with the defendant as a driver and storeman in its steel business which he continued as either an employee or a sub-contractor until 1996. He was a hard-working, conscientious and valued employee of the defendant. But for the accident it was likely that he would have continued in its employment until he turned 65 years of age.

Immediately after the accident on 12 November 1990 the plaintiff was admitted to the Queen Elizabeth Hospital. He was found to have a fracture of the parietal bone in his skull with contusions of his right temporal lobe and a widening of his pubic symphysis. He remained only partially conscious for about five weeks. His pelvis injury was treated conservatively by him being suspended in a sling for eight weeks. On 14 January 1991 a ventriculo-peritoneal shunt was inserted into his skull because of a possible presence of hydrocephalus arising from internal haemorrhaging. On 25 January he went to the LeFevre Community Hospital where he remained until 6 February 1991 when he returned home. He underwent an extensive rehabilitation program at the Payneham Rehabilitation Centre to assist him in recovering his mental processes and physical mobility. Later in 1991 a more limited rehabilitation program was pursued at the Alfreda Centre. He had continual problems with headaches, back pain, speaking and memory. He was anxious to return to work and on 27 May 1991 he resumed part time light duties with the defendant with gradually increasing hours. On 27 July 1991 he underwent surgery to remove an obstruction from his small bowel which would not have occurred but for the ventriculo-peritoneal shunt which had been inserted as a result of the accident.

As a result of his head injuries the plaintiff's driving licence had been cancelled. After some difficulty he regained his full driving licences, including a licence for a semitrailer, in November 1991. Because of his head injuries he had difficulty in coping with the theory test. He has since driven without any restriction. By January 1992 he had resumed full time employment with the defendant, although he was having to take considerable painkilling medication for back pain and daily headaches in order to be able to continue working. In November 1993 he underwent a further operation for a shunt revision which alleviated some of his headaches.

In September 1995 the plaintiff aggravated his back condition resulting from the accident and had a week off work because of it. By mid 1996 he was finding it increasingly difficult to cope with his employment as the strenuous activities of a driver and storeman aggravated his back condition. He was taking substantial amounts of prescription painkillers to be able to cope with that work. On the advice of Dr James he ceased work on 3 July 1996. He has not obtained, or sought, remunerative employment since that time. His only employment since has been for a few hours each Wednesday morning when he does light work assisting a friend in a trucking business. He is not paid for this, but receives some indirect benefits.

Mr Walsh, a neuro-psychologist, has assessed that the plaintiff has suffered a permanent loss of 30% of his intellectual capacity as a result of his head injuries. On occasions he becomes confused and he continues to have some difficulty in articulating words, in remembering and in organising himself, but he copes adequately with the assistance of his wife. Dr James considered that he would be capable of independent living if he lost the services of his wife, but he would certainly have considerable difficulties.

As a result of his head injuries the plaintiff has suffered a permanent partial loss of his senses of taste and smell particularly on the right side. This means that he does not enjoy many foods and drinks which he cannot now taste. (Before the accident he drank up to five litres of Coca Cola each day, but he now drinks little of it because he cannot taste it. Dr. James thought that this reduction in his Coca Cola consumption would do his general health no harm.)

The plaintiff has made a good recovery from his severe head injuries. He still has some resultant headaches for which he needs to take painkilling medication. He is more irritable and aggressive than he was prior to the accident, but he and his wife continue to live together without major difficulties. He is generally stoical about his disabilities.

As a result of the accident the plaintiff has a permanent disability in his lower back which restricts him in his ability to engage in heavy work. Surgeons have assessed this as a 30% loss of the function of his lower back.

As a result of the injuries received in the accident the plaintiff cannot achieve a sufficient erection for sexual intercourse and is thus to be regarded as impotent. He has elected not to seek possible treatment to overcome this problem. The plaintiff has been on medication since the accident to reduce his high blood pressure. The accident, and the stresses and frustration resulting from his disabilities, are one of the causes of his high blood pressure, but he may well have had blood pressure problems later in life even without the accident. Otherwise he is relatively fit and healthy. Insofar as he has a hearing problem it has not been shown to be a result of the accident.

The past loss of earning capacity was agreed at $45,553, which was the amount of income maintenance payments received under Workers Compensation and is repayable without any deduction for taxation. Under Section 35a(1)(d) of the Wrongs Act no damages are to be awarded for the first week of incapacity. I allow damages for past economic loss at $45,200. Although since his retirement from full time employment in July 1996 the plaintiff would have been able, and is likely to continue to be able, to cope with some part time relatively light work, there is no real chance that at his age, and with his mental and back disabilities, he would be able to obtain that type of remunerative employment. I take judicial notice of the fact it is very difficult for people with a history of chronic back injury to obtain employment presumably because employers fear they might suffer relapses or aggravations: Mathewson v ANR
(1987) 135 LSJS 94 at 100. As his ability to engage in his pre-accident employment has been destroyed the onus was on the third party to show that he had some residual earning capacity which he could properly utilise: Van Velzen v Wagener (1975) 10 SASR 549 at 550; Olsen v Loizou, Full Court 20/12/96, Jud No S 5961 unreported, but it has not done so. The current nett earnings of a driver/storeman in the position previously held by the plaintiff is $383.65 per week. Damages for future economic loss are assessed at $110,000.

The plaintiff enjoyed his work and derived a great deal of personal satisfaction from it. This has now been lost to him. His social activities have been curtailed to some degree by his disabilities but he is still able to work around his house and in his garden and to enjoy most of the amenities of life. He can mow his lawns, but cannot use a whipper snipper. Under s35a(1) of the Wrongs Act I assign a numerical value of 11 on the scale of 0-60. The multiplier was agreed at $1,240. Damages for non economic loss are assessed at $13,640.

The past special damages were agreed at $78,252 which have all been paid through workers compensation. The plaintiff will continue to need some medical supervision of his disabilities, over and above what is required for his general health, and continued medication on an "as needs" basis for his disabilities. Mr Walsh, the psychologist, recommended counselling for him, but Dr James did not endorse it. The plaintiff has not had any, but there is a possibility of it in the future. On a broad axe basis I allow $5,000 for future expenses.

The plaintiff's wife has rendered him gratuitous services in his convalescence and in coping with his disabilities over and above what would normally be expected of a spouse. The plaintiff's wife ran the finances of the family before the accident. She generally had the role of an organiser and a carer within the family. I allow $1,000 damages for gratuitous services.

There was no claim for interest.

In summary the plaintiff's damages are assessed as follows:

Past economic loss$45,200.00

Future economic loss110,000.00

Non economic loss13,640.00

Past special damages78,252.00

Future special damages5,000.00

Gratuitous services1,000.00

Total$ 253,092.00

There will be judgment for the plaintiff against the defendant for $253,092. I will hear the parties on precisely what orders should be made on the third party proceedings and on costs.

In Court on Thursday, 6 February 1997

For the reasons which I now publish I find that the defendant has brought itself within the 4th Schedule of the Motor Vehicles Act to be entitled to indemnity from the 3rd Party, but that the 3rd Party has not brought itself within s99(3) of the Motor Vehicles Act so as to take the circumstances of the matter out of the 4th Schedule. Accordingly, the indemnity sought by the defendant against the 3rd Party will be granted and there will be judgment accordingly on the 3rd Party proceedings for the defendant.

I assess the plaintiff's damages at $253,092 and there will be judgment for the plaintiff against the defendant for that amount. However, as to precisely what order should be made on the 3rd Party proceedings and costs, I will hear the parties either now or at some suitable future date.

Matter adjourned to Thursday, 13 February 1997 at 9.30am

In Court on Thursday, 13 February 1997

Judgment in terms of Minutes signed by me.