Gattermayr v Appelton No. Scciv-01-1632

GATTERMAYR v APPELTON
[2002] SASC 100
Magistrates Appeal: Civil

WILLIAMS J This is an appeal by the defendant against a Magistrate’s award of damages for personal injury arising out of a vehicular accident.
The plaintiff, a motor cyclist was involved in a collision with a motor car driven by the defendant on 20 March 1995 at Elizabeth. He was catapulted forward off his cycle across the boot of the defendant’s vehicle and landed on his head on the roadway. The plaintiff suffered an injury to his neck (described as a muscular ligamentous strain causing a loss of function of the cervical spine representing “an ongoing minor disability”). However, independent of this accident, the plaintiff suffered work related injuries for which he has been compensated; these injuries include a lower back injury, a left elbow injury and injury to his knees. A significant feature of this case is the need (difficult as it is) to separate the effects of these work related injuries from the injury caused by the collision with the defendant’s car.
1 The Magistrate’s decision
The Magistrate found that the defendant was negligent but reduced the damages otherwise payable to the plaintiff by 50 per cent by reason of his contributory negligence. In accordance with s 35A of the Wrongs Act 1936 (non-economic loss) the Magistrate “assigned the numerical value 8” (on a scale running from 0 to 60) and applied the prescribed multiplier ($1450) to establish a loss of $11600 on this account. The Magistrate allowed $25,000 for future economic loss and $1000 for future medical expenses. All these amounts are under challenge by the appellant upon this appeal.
The defendant upon this appeal has not disputed the Magistrate’s decision as to her liability nor the manner in which contributory negligence was dealt with. The plaintiff has not cross appealed but in a notice of alternative contention the plaintiff submits that the overall award may be justified on the footing that the percentage reduction of the damages as abovementioned is excessive if the appellant’s arguments were otherwise to prevail. The course which the plaintiff has adopted is in accordance with the practice as explained by King CJ in Doherty v Footner (1993) 170 LSJS 100 at 101:
“It follows from what I have said that a cross-appeal is appropriate only where the respondent disputes the appropriateness of the total amount of the judgment. If he does not dispute the total amount but wishes to contend that any error demonstrated in relation to one or more components of the damage is compensated for by an error in relation to the apportionment of liability or in relation to other components of the award, he may do so, subject to compliance with any procedural requirements, by argument on the appeal. If he succeeds, the appeal will be dismissed notwithstanding that the appellant has demonstrated error in relation to certain of the components.”
The Magistrate’s award was expressed as follows:
“1     Past economic loss -  $00.00
2      Wrongs Act sum -  $11,600.00
3      Past medical expenses -   $250.00
4      Future economic loss -  $25,000.00
5      Future medical expenses -   $1,000.00
Total -  $37,850.00”
Judgment was entered for 50 per cent of this sum namely $18,925.
2      The Grounds of Appeal
The grounds of appeal are:
“1.That the Learned Trial Judge erred in finding that a previous allowance for workers compensation benefits with respect to pain and suffering was of minimal significance and further failed to take into account the plaintiff’s payments by way of workers compensation benefits in the assessment of the entitlement to non economic loss for injuries arising out of the motor vehicle accident.
2.That the Learned Trial Judge’s award for pain and suffering was manifestly excessive in the circumstances.
3.That the Learned Trial Judge’s award for future economic loss was manifestly excessive in the circumstances and further, that His Honour failed to have sufficient regard to:-
3.1   The plaintiff’s significant unrelated injuries and the fact that the plaintiff would have been a less attractive employee in any event as a result of is many unrelated complaints and disabilities.
3.2   The principles of Manser v Spry and in particular that the plaintiff had received an allowance for future economic loss by way of a workers compensation lump sum payout.
4.That the learned Trial Judge’s award for future medical expenses was manifestly excessive in the circumstances and further, that His Honour failed to have sufficient regard to:
4.1    The plaintiff’s significant unrelated injuries in any event.
4.2   The principles of Manser v Spry and in particular that the plaintiff had received an allowance for future medical expenses by way of a workers compensation lump sum payout.”
3      Liability
The accident occurred on a roundabout at Elizabeth. Having regard to the way in which the carriageway was then marked (or lacked marking) the specific obligations of the respective parties under the Traffic Code as applied to the particular situation are obscure and the matter must be resolved by reference to general principles. The defendant (driving a Chrysler Sigma motor car) was proceeding north along Elizabeth Way and intending after negotiating the roundabout to follow Elizabeth Way in an easterly direction. Elizabeth Way was originally built with a curve to accommodate its abrupt change of direction. However, a roundabout has been installed at this point and Woodford Road (running north from the roundabout) provides an extension from Elizabeth Way in alignment with the South/North section of Elizabeth Way. Likewise Winterslow Road (running to the west from the roundabout) is aligned with the east-west section of Elizabeth Way. In plan the location appears as an intersection of four roads two of which (running more or less at right angles to each other) are called Elizabeth Way. (As a matter of convenience I have treated the four roads as being nominally aligned with the four cardinal compass points; in fact Woodford Road leads off rather more towards the north east but this is immaterial. My assumption is consistent with that adopted by the Magistrate).
The Magistrate referred to the plan dated 28 November 1989. Although he has not made a specific finding as to the currency of this plan at the time of the accident I infer that the plan insofar as relevant provides the basis for the Magistrate’s description of the location and line markings with respect to a “dual lane carriageway” within the roundabout.
At the relevant time it therefore appears that the carriageway of the roundabout provided dual lanes forming concentric circles within the confines of the roundabout; the division between the two lanes was probably marked on the roadway by a broken line (“the dividing line”) forming a circle around the central roundabout. A vehicle entering the roundabout from the south and travelling in the outer (or left hand lane) could therefore negotiate the roundabout and leave the roundabout so as to travel east without crossing a line after entering the system. (Likewise that vehicle could exit north into Woodford Road without crossing a line).
On the other hand a vehicle travelling from the south in the right hand lane within the roundabout (ie the inner lane nearer the centre) must cross the dividing line into the outer lane if intending to exit north into Woodford Road. The “Australian Road Rules” did not commence operation until 1 December 1999 and at the time of the accident the roundabout was not marked in accordance with these requirements.
It may be upon an alternative view of the evidence that for some reason the dividing line was not apparent. If this be the correct way of viewing the evidence there would be no line to be crossed if exiting into Woodford Road from the inner or centre lane. My reasons should be treated as covering this possibility. However, in such event my ultimate decision as to the plaintiff’s own lack of care would not be different as his evidence shows that from experience he was aware (or should have been aware) that vehicles in the outer lane sometimes did not exit into Woodford Road.
The plaintiff gave his evidence upon the footing that there was nothing untoward in his manoeuvre. Nevertheless his experience of the roundabout was that drivers in the outside lane sometimes diverged to the right along the general course being followed by the defendant; nevertheless he did expect that persons in the position of the defendant to signal their intentions. It seems clear that the plaintiff wrongly assumed that the defendant was intending to exit to the north into Woodford Road rather than to the east into the easterly portion of Elizabeth Way.
The appeal was argued on the basis that the only criticism advanced against the defendant was her lack of a signal to avoid embarrassment to others.
The Magistrate described the movements of the parties as follows:
(a) The plaintiff:
“The plaintiff was riding his Kawasaki 650 motor cycle in a northerly direction along Elizabeth Way, and positioned his vehicle in the right hand or centre lane of that roadway and intended to travel essentially north through the roundabout into Woodford Road which is the northern extension of Elizabeth Way. (Historically Elizabeth Way was a semi-circle, and when the roundabout was constructed it was intending to deal with the issue of intersecting roadways into the semi-circle and thus the easterly portion of the roundabout is still referred to as Elizabeth Way).
When the plaintiff’s motor cycle reached the roundabout he saw the defendant’s vehicle slightly ahead of his vehicle and in the roundabout itself. He moved into the roundabout, he estimates, at a speed of approximately 40 kph, and maintained that speed into the roundabout with the defendant’s vehicle still ahead of his vehicle but to his left. He saw no indicator operating on the defendant’s vehicle. He clearly assumed that she was going to exit the roundabout at Woodford Road. He continued on toward the Woodford Road exit but suddenly was confronted with the defendant’s vehicle moving across his path. He then braked, swerved the motor cycle to the left, but was unable to avoid impacting the right rear fender of the defendant’s vehicle. (Photographs showing the damage on the defendant’s vehicle were tendered and they show the point of impact occurs low down on the right rear fender with the principal damage at a point about 6 to 12 inches from the rear bumper bar margin suggesting that the plaintiff failed by only a relatively small margin to avoid hitting the rear of the plaintiff’s vehicle.)
Subsequent to the impact, but as a result of the force of the impact jarring free his grip on the handlebars and of his continuing momentum, the plaintiff was thrown forward across the boot lid of the defendant’s vehicle. His helmeted head struck the roadway some distance to the north of the defendant’s vehicle before he rolled further on the road surface. He says that he got up and moved his motor cycle off the road surface before noting the defendant’s vehicle had continued on through the roundabout and was proceeding into a car park at a gymnasium to the northeast of the roundabout.”
(b) The Defendant:
“The defendant’s evidence is that prior to the impact she was travelling in the left hand or outer lane of the two north bound lanes on Elizabeth Way and was intending then to travel around the roundabout and exit the roundabout onto the eastern extension of Elizabeth Way. It is her evidence that as she approached the roundabout there were a number of vehicles in the roundabout itself. She slowed her vehicle to a speed of about 10 kph, almost to a stationary position, to allow traffic coming from the right side in the roundabout to clear her path. She then proceeded into the roundabout to a speed of about 20 to 30 kph. Her vehicle remained in the outer of the two lanes in the roundabout itself.
The defendant is adamant that at the time of the accident, and from her experience of the roundabout approximate with the date of the accident, there were no lane markings or other markings on the road surface immediately prior to the entry to the roundabout nor within the roundabout itself to suggest that it was inappropriate for her to be travelling in the outer of the two lanes if she intended to continue on into the easterly portion of Elizabeth Way. She accepts that since the date of the accident there have been changes made to the painted markings on the road surface.
The defendant is unable to recall whether she had her right hand indicator light operating at any time before or upon entering into the roundabout. She recalls, however, that there was other traffic in the vicinity and she gave way to that traffic before entering into the roundabout. She says she was also aware of the presence of other vehicles but no vehicle immediately adjacent to her vehicle when she entered the roundabout. She claims however to have a specific recollection of hearing a loud revving sound coming behind her and to her right side which subsequently suggests must have been the plaintiff’s motor cycle. (As I understand her, she was intending to suggest by that evidence that the plaintiff’s motor cycle must have been accelerating and that must have been a contributing factor to the accident occurring - in my view this is a somewhat convenient reconstruction on the part of the defendant in an attempt to disguise or rationalise away any suggestion of blame on her own part.)
It is the defendant’s evidence that she did not see the plaintiff’s motor cycle prior to the impact, but as she continued around the roundabout moments after hearing the sound of what she thought was an accelerating vehicle she felt an impact to the right rear of her vehicle. She claims at that point to have looked in the rear mirror and then to her left, and to have seen the plaintiff standing in the median strip area. She says she was then aware that an impact must have occurred.”
The Magistrate concluded that the defendant failed to indicate her intention to turn right and that this was a significant factor contributing to the accident. However, the plaintiff in the rearmost position failed to take evasive action although he was closing with the other vehicle in circumstances where he was positioned with the “best opportunity so far as lookout was concerned to take evasive action”. If he had realised that the defendant was intending to continue eastward along Elizabeth Way (and not northward along Woodford Road) the plaintiff only needed to slow down slightly in order to allow the defendant to pass clear ahead of him. However, the defendant did not alert the plaintiff to her intentions by signal as would have been prudent to avoid embarrassment.
The respondent takes issue with the Magistrate’s decision as to liability and her contentions are as follows:
1“The learned Magistrate should have found the appellant to be more at fault for the accident than the respondent having found on the facts that the appellant effectively attempted to execute a right hand turn across the path of the respondent’s motorcycle without operating her right hand indicator.”
2.“The learned Magistrate erred in finding that the appellant’s vehicle was ahead of the respondent’s motorcycle prior to him braking and swerving somewhat to the left side (as stated in paragraph 31 of the judgment). The respondent says that on the evidence the learned Magistrate should have found that the respondent had little if any opportunity to take evasive action or in the alternative the learned Magistrate attached too much weight to the finding that the respondent had the best opportunity so far as look out was concerned to take evasive action.”
3.“The learned Magistrate should have attached weight or more weight to the respondent’s case at trial that it was reasonable for the respondent to expect that the appellant was going to continue to travel effectively straight through the roundabout rather than make a right hand turn given that she was in the outside lane and did not operate her right hand indicator.”
In my opinion the Magistrate was entitled to reach the conclusions which he did with respect to identifying the negligence of the defendant, and the plaintiff’s lack of care for his own safety and with respect to apportionment of blame. I can discern no error in the Magistrate’s judgment in this respect and I would uphold his decision as to liability (including his decision as to the plaintiff’s contributory negligence).
4 The plaintiff’s work related injuries and work history
The plaintiff was born on 28 February 1962 (and therefore aged 39 at the time of the Magistrate’s decision). He left school at age 16 and then worked as a storeman; before 1980 he worked as a press operator on a vehicle assembly line; between 1982 and 1986 he worked as a machine operator and labourer; between 1986 and 1990 he was employed in the GMH bodyshop as a welder and metal finisher; in 1990 he became a forklift operator.
On 18 August 1993 the plaintiff was involved in an accident whilst riding his motor cycle to work; he sustained minor injuries to his knees. However, he suffered no long term disability.
In August 1994 he was injured at work whilst pulling down some crates. He had to hammer a bar which he jammed. He became aware of lower back pain and spent time off work which necessitated physiotherapy treatment. The plaintiff complained that his lower back injury was aggravated by his forklift driving duties. However, he was able to return to work on the production line and resumed his forklift duties “on a graduated basis” before 20 March 1995.
On 17 January 1996 the plaintiff suffered a further episode of low back pain as he lifted a bar out of a crate. The forklift driving was also then jarring his back as he drove over rough surfaces.
In June 1997 the plaintiff’s back symptoms (which by this time were also related to the neck injury described below) were exacerbated when he was required to install boot lids on motor vehicles. Spot welding (requiring him to lift above shoulder height) also aggravated his symptoms.
At some stage (the evidence is unclear) the plaintiff suffered an injury to his left elbow requiring surgery. This was not related to the accident of 20 March 1995 but occurred at a later time and was work related.
It is agreed between the parties that the plaintiff has been compensated in respect of his work related injuries. It was agreed that the plaintiff received:
“…a lump sum payment of $115,000 on 12 June 2001 - he had earlier received weekly payments of income maintenance between January 1996 and July 1999 in the amount of $132,717.94, and between July 1999 and March 2000 of $40,929.69.”
5 The loss of future earning capacity
It is against this background that the Court is required to assess how the plaintiff’s injury to his neck affected the plaintiff’s loss of future earning capacity and bearing in mind that the plaintiff had already suffered an impairment of his working capacity by reason of the injury to his lower back. Moreover the Court is required to ensure that the plaintiff (who has been compensated by lump sum for loss of earning capacity for the work related injuries) does not receive double compensation. The Magistrate addressed these matters.
Both parties addressed argument upon appeal by reference to the following statements of principle:
Manser v Spry (1994) 181 CLR 428 at 432:
“The question for determination is whether the plaintiff is entitled both to receive and retain compensation by way of weekly payments payable during incapacity, medical and hospital expenses and a lump sum payable for non-economic loss under s43 of the [Workers Rehabilitation and Compensation] Act and to recover damages in the common law action assessed without reduction on account of compensation received or to be received.”
Walker v Briddon Full Supreme Court, S9412, 1 September 1986, unreported per King CJ:
“The appellant’s liability …”is confined to the effects of the injuries sustained in the accident; such liability does not extend to disabilities which result from a pre-existing condition alone, nor to disabilities which would supervene irrespective of the occurrence of the accident. In particular, the (appellant) is not liable for any impairment of working capacity which…would supervene irrespective of the occurrence of the accident.”

The Magistrate had before him over 40 medical and radiological reports. His Honour’s reasons summarise the effect of these reports. That analysis was undoubtedly a formidable task. I consider it to be unnecessary to repeat this exercise. No criticism has been advanced on the hearing of the appeal as to this summary. The real thrust of the appellant’s submission is that His Honour did not have sufficient regard to the way in which and the extent to which the work related injuries interfered in any event with and reduced the plaintiff’s earning capacity for which he had been compensated.
The plaintiff was examined by Dr Ross Johnson (a surgeon and medico-legal consultant) on 25 May 2001 at the request of the defendant’s solicitors. His assessment was unfavourable to the plaintiff:
“…I agree that this man demonstrates elements of abnormal illness behaviour with exaggeration of his symptoms. I am of the opinion that he may have a small organic basis to his continuing neck symptoms but I am further of the opinion that any permanent residual disability in his cervical spine resulting from the motor cycle accident does not exceed 4% to 5% loss of function of the cervical spine. This disability in my opinion does not inhibit him in his employment capacity. I am of the opinion that it is his back complaint which restricts his work capacity….”
This assessment does not accord with the findings of the Magistrate.
Dr Gary Clothier (a consultant in rehabilitation and pain medicine) provided a report on the plaintiff’s status dated 28 February 2001. His report appears generally to reflect the approach which commended itself to the Magistrate and upon my reading of the evidence generally reflects its tenor. Dr Clothier reported:
“…With regard to his neck pain, he stated that he had mild constant pain but had sharp pain with activity. He particularly had problems with driving with turning to check his rear vision mirror and had troubles reversing a car or trailer. He developed sharp pain after approximately one hour of sitting at the computer. He had difficulty riding his motor bike, cutting the lawn, painting and drilling. Sitting for long times in front of the television was also associated with increased neck pain. Sudden movement was the worst giving him quite sharp pain. Mr Appleton again confirmed that his neck generally bothered him more than his back but stated that really depended on how much he did. He always had some constant aching pain in the lower back which became sharper with activity on the left hand side. Generally the more he does, the worse he gets. He had problems mowing his lawns, climbing ladders or stairs repeatedly, with sexual activity and painting overhead. Any bending and twisting quickly affected his back. He also had difficulty riding a pushbike. He stated that he had a sitting tolerance of about two hours at the computer with regard to his back but generally his neck was bothering him before that time.”
And:
“As a result of the injury sustained to his cervical spine in the motor vehicle accident of 20^th March 1995, it is my opinion that Mr Appleton should avoid activities that require sustained neck flexion, repetitive rotation to the left and right and repetitive extension movements. He is also unfit for heavy lifting or heavy push pulling. It is best if he can alter his posture on a regular basis, between sitting, standing and walking.
With regard to his restrictions for his work related back and left elbow injuries, it is my opinion he is unfit for activities which require repetitive bending, repetitive full forward reaching, heavy lifting and heavy push/pulling activities. He is best suited for activity which enables him to change his posture regularly between sitting, standing and walking. With regard to his left elbow, he should avoid activity that require repetitive elbow flexion, sustained elbow flexion and sustained gripping activities.
It is my opinion his condition can be considered stabilised.
With respect to permanent residual disability, it is my opinion that Mr Appleton has the following levels of disability.
Cervical spine - 10%
Thoracic spine - 5%
Lumbar spine - 10%
Left arm above the elbow - 10% plus 2% for disfigurement from scarring.
It is my opinion that all of the percentage loss of neck function is related to his motor vehicle accident.
The most appropriate treatment is for Mr Appleton to return to work in light duties as per the restrictions detailed above.
Given that Mr Appleton has had his symptoms for five and six years, the prognosis is for him to continue to experience Chronic Mechanical Neck and Back pain both of which have not really changed much over the period of time.”
The appellant’s written submission is expressed as follows:
“His Honour appears to have found that the plaintiff is entitled to receive some allowance for future loss of earning capacity on the basis that:
·He would need to take some care when using a forklift.
·He would need to take some care in doing any work, which required him to exert significant force on his upper arms or shoulders or to extend or flex his neck excessively.
·Now the plaintiff was on the general labour market there was the risk that against the background of his many and varied complaints an employer may find him a less than attractive proposition.
That loss was incurred even if the plaintiff had not been involved in the motor vehicle accident.
To have awarded the plaintiff any damages for loss of earning capacity on the basis that he may now have some difficulty operating a forklift or undertake activities which exert significant force upon his upper body or that reduces his attractiveness to potential employers having regard to his many and varied complaints and claim disabilities is to compensate the plaintiff for the unrelated damages and/or to grant the plaintiff compensation he has already received.
The plaintiff failed to prove (and His Honour failed to have proper regard to) the fact that the nature and extent of that disability is no different irrespective of any injury sustained in the motor vehicle accident.
Even if there was some residual earning capacity relating specifically to the injuries sustained to the neck, the plaintiff has already been generously compensated by his Worker’s Compensation payments which covers the same loss.”
In my view the evidence justifies the conclusion that the injury to Mr Appleton’s neck has further reduced his capacity for work independently of the work related injuries (and in particular the lower back injury). He now has a capacity to undertake “light duties”; the plaintiff’s neck and lower back problems will each separately and together bear upon his ability to obtain suitable work and to hold down a job. I reject the appellant’s submission that the workers compensation payments cover the “same loss” as that caused by the accident in March 1995. The situation is fairly summarised in Mr Appleton’s cross-examination:
“QThis neck injury as you describe it was extremely minor in the scheme of things, wasn’t it.
A.No, my neck issue has been a problem all the way along since I had a motor bike accident. I tried persisting with it when I first went back to Holdens. My doctor kept encouraging me to try and try and try so I was trying and it just got on top of me.
Q.That is about your neck problem as you describe it that stops you from working, does it.
A.I have a lot of trouble with my neck. I have a lot of trouble doing computer work with my neck.
Q.And your back.
A.That’s my neck further my back if I am prolonged sitting in front of the computer, yes, but my neck flares up before my back has a chance to get really aggravated.
Q.Your left elbow on the keyboard.
A.Like I said I don’t use my left arm in front of my computer. I am right handed and my joy stick I use in my right hand. My mouse I use in my right hand.”
It seems to me that Mr Appleton despite his injuries should be able to work at least part time - for example as a storeman selecting stock from a computer terminal as well as performing other miscellaneous duties. It is his neck problem which will often be to the fore as requiring him to stop work. I consider that the hours which the plaintiff could work (and perhaps the type of work) has been reduced by his neck problem over and above the restrictions imposed by the lower back and other work related injuries.
The Magistrate summarised the plaintiff’s case as to his neck injury in the following terms:
“Mr Appleton deposed that he had continuously since the subject accident suffered neck ache and has suffered headaches on an intermittent basis. He described activities involving frequent bending of the neck, work requiring him to look up over his head, work requiring him to use his arms above shoulder height and bumpy surfaces whilst forklift driving as aggravating factors to his neck condition. He said that his back condition also continued to represent a disability preventing him from undertaking heavy lifting or sitting for long periods.
He did suggest that his back condition had been exacerbated in the motor vehicle accident although conceded it had settled down before the work injury in January 1996. I note that he had been able to return to forklift driving work until January 1996 when he sustained the back injury at work.”
The Magistrate’s conclusion with respect to the neck injury was as follows:
“Although I have no doubt that plaintiff has exhibited, in his presentation to medical practitioners, in the history he gave those practitioners and even in the witness box a marked tendency to exaggerate his complaints and embellish the level of his disability, I have come - albeit with some reservation to accept that he has a minor ongoing disability of his neck resulting from the impact of his helmeted head on the road surface on 20 March 1995. I accept that as a result of the impact he sustained a musculo-ligamentous injury which has over time settled to leave intermittent pain and a minor restriction in his capacity to undertake certain forms of employment, namely those involving significant flexion, extension and rotation of the neck. I am satisfied that in some circumstances activities involving jarring of the neck may result in a temporary exacerbation of the underlying symptoms. I also accept that since the accident the plaintiff has suffered intermittent headaches, which are not in themselves disabling and are relieved by analgesic medication.”
And:
“I am satisfied that the plaintiff has only a minor disability as a result of this accident. Notwithstanding his claims of disability arising from this accident and his other claimed disabilities to his back and his left elbow, had he been appropriately motivated there is substantial reason to believe he may still be employed at Holden’s Ltd. I accept he may need to take some care when using a forklift to ensure that he does not unnecessarily jar his cervical spine and take some care in doing any work which requires him to exert significant force on his upper arms and shoulders or to extend or flex his neck excessively.
Now that he is essentially on the general labour market there is the risk that against the background of his many and varied complaints and claimed disabilities an employer may find him to be a less than attractive proposition. However he is only 39 years of age and has potential for 25 years plus working life ahead of him.
Balancing the various contingencies and assessing what I consider the true extent of his loss of earning capacity by reason of this accident after making allowance for the Manser v Spry principles I allow $25,000 for future economic loss.”
In my opinion the evidence justifies the Magistrate’s award for future economic loss. I have recited sufficient of the evidence to demonstrate the nature and extent of the loss under this head of damage which now stands to be considered. The assessment may be viewed as generous but I do not consider that error has been demonstrated in the Magistrate’s judgment in this respect.
6 Non economic loss
So far as non-economic loss is concerned an appreciation of the effect of the neck injury is contained in the plaintiff’s examination in chief:
“QI suppose there is also a limitation on that lifting you can do and carrying with your back as well.
AYes.
QYou’ve mentioned children how old are your children at the moment.
A5 and 9 I think.
QDoes your physical problem interfere with the pain(sic) with your children.
AYes, it does.
QName some of the areas.
AGoing down the park you know pushing them on the swings you know just generally having fun, playing a bit of sports with them and stuff like that.
QIs that partly also your back that restricts you in those activities as well as your neck.
AIt can do but mostly I reckon my neck.
QDoing work on the car is that something you used to do.
AI still work on my car when I can’t afford anybody else to pay for it and I have to take longer doing things now because I have to have breaks whereas before I used to be able to do it no problems.
QYou mentioned before things like vacuuming and cleaning and hanging out the clothes. Were those domestic activities that you tried to do.
AYes, I try and push my weight around the home.
QI think you mean pull your weight.
AYes. I try to help my fiancée as much as I can.
QThis relationship with your fiancée is that a relatively recent development.
AOver the past 3 years.
QInterference with sexual relations is there any interference there from any of your injuries.
AYes, I have a lot of trouble doing certain things you know.”
This evidence may be compared with the evidence of Dr Clothier which I have recited.
The defendant complains that the Magistrate made an error in assigning the number 8 in his assessment of the plaintiff’s injuries. One of the difficulties which the appeal presents is that the parties (no doubt to contain costs) elected to conduct the case before the Magistrate largely by reference to medical reports which were not the subject of cross-examination. It is not possible to reconcile those reports and the Court must therefore do the best which it can and having regard also to the sworn testimony. Irrespective of the effect of the work related injuries counsel for the defendant submitted on this appeal that even for a neck injury which left a previously completely healthy person with intermittent pain and a minor restriction and intermittent headaches, “8 points on the scale” was excessive. However, from time to time the effects of the injury were characterised as “moderate” as opposed to “generally minor”. This is consistent with the evidence and in my opinion justifies a higher award.
The Magistrate said:
“As to his personal life, it is my view that the disability would result in no significant restrictions. I note his assertion that he has problems when he works on his computer, but I accept that in a home environment if he could get up and walk around and take a break from whatever activity he is doing on his computer, then the neck restrictions would present only a minor inconvenience.”
I do not consider that error has been demonstrated in the exercise of the Magistrate’s judgment in selecting “8 points”. In my opinion the selection is generous but within the appropriate range.
7 Future medical expenses
There will be times when the plaintiff’s neck causes him discomfort and other times it will be the work related injuries which require relief. Bearing in mind that the plaintiff will require analgesics for the rest of his life (although no other treatment) I do not consider that the allowance of $1000 for future medical expenses relating to his neck is excessive. It seems to me that in terms of money the pain relief which the plaintiff will seek from analgesics in respect of his neck is distinguishable from that which is attributable to his lower back even although there must be some degree of “blending” in terms of the source of the discomfort.
8 Conclusion
In my opinion no error has been demonstrated in the reasons of the Magistrate or in his award. None of the grounds of appeal have been established.
The appeal will be dismissed.

[2002] SASC 100

22 March 2002