Hardy & Hardy v Barberien No. DCCIV-00-614

Susan Francis Hardy & Matthew Rohan Hardy
v John Barberien
[2003] SADC 51
Civil
Judge David Smith
Introduction

In this action the first named plaintiff claims damages against the defendant for personal injuries and consequential losses caused by a motor vehicle collision which occurred near Gladstone on the 24^th May 1997. The second plaintiff, who is the husband of the first, claims damages for the loss of consortium of his wife. Both liability and quantum are in issue. The action is subject to the constraints of s35A of the Wrongs Act, 1936. Section 35A was repealed by s4 of the Wrongs (Liability and Damages for Personal Injury) Amendment Act 2002, which came into operation on 1^stDecember 2002. However s35A still applies in this action because the accident, the subject of this claim, occurred before the commencement of the new provisions (see ss6 and 7 of the said repealing Act.)
Issues – contentions
The predominant question in the trial was who was responsible for the collision? It took place on Main North Road on the southern outskirts of Gladstone. The first plaintiff turned her Sigma sedan to the left onto Main North Road from a side road, proceeded north a short distance and then having indicated, commenced turning to the right onto another side road. The defendant, who was driving a Camry sedan, drove up behind her and was in the process of overtaking when the Sigma commenced turning right and so the collision occurred. The plaintiffs contend that the collision was wholly the responsibility of the defendant whose vehicle approached the scene at an excessive speed and overtook when it was dangerous to do so. The defendant’s response is that the first plaintiff failed to obey the give way sign and that the overtaking manoeuvre was undertaken in an effort to avoid a collision. There is an alternative plea of contributory negligence in the defence.
As to quantum, the first plaintiff alleges that she suffered soft tissue injuries to the cervical and lumbar spine and a right shoulder injury. Further, she alleges a number of psychological detriments, including a post-traumatic stress disorder. She contends that the injuries have caused persisting pain and discomfort, have diminished her earning capacity and have impaired her relationship with her husband. In response, the defendant contends that the first plaintiff’s claimed injuries and disabilities are not as severe as contended for and that some of the complaints pre-date the collision. The defendant also denies that the second plaintiff has suffered a loss of his wife’s consortium.
I will deal first of all with liability. I set out the applicable legal principles.
Legal principles
It is trite law that a breach of statutory provisions such as the now repealed but then applicable s63 of the Road Traffic Act is not “the be all and end all” of civil responsibility. In the case of Sibley v Kais (1967) 118 CLR 424 the High Court said at 427:
“Therefore, it is, in our opinion, rightly said that the “ ‘right hand rule’ is not the be all and end all in relation to questions of civil responsibility”. The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to “reasonable care” is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected.”
In order to discharge the duty to take reasonable care, drivers are required to drive defensively and anticipate not only immediate danger, but also potential danger (see Stoeckel v Harpas (1971) 1 SASR 172). For example, having the so-called “right of way” does not necessarily confer immunity on a driver if he or she, as it were, presses on and a collision results.
I am empowered to apportion fault in this matter by s27A of the Wrongs Act. Notwithstanding that s27A was repealed by s9 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001, which came into operation on the 16^th August 2001, it applies in this action because the accident occurred before the commencement of the repealing legislation (see s8). In any event, I note that the replacement provisions, namely ss6 and 7 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act are in a material sense much the same as that which existed in Part III of the Wrongs Act and in particular s27A.
Section 27A provides that any apportionment of damage shall be based upon what the Court considers is “just and equitable having regard to the claimant’s share in the responsibility for the damage”. So the section confers a wide discretion to apportion liability in a way which is just and equitable (see Pennington v Norris (1956) 96 CLR 10 at 15). In Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at pp532-533, the High Court set out the considerations which guide the exercise of this discretion as follows:
“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”
(See also Teubner v Humble (1963) 108 CLR 491 at 499 per Dixon CJ; Evers v Bennett (1982) 31 SASR 228 at 229 per King CJ.)
So the exercise is essentially a comparison of culpability.
With these principles in mind I now turn to the evidence.
The following narrative constitutes my findings. I will identify areas of disagreement, canvass the evidence and set out my specific findings as I traverse the narrative.
Circumstances of collision
The accident occurred on Saturday the 24^th May 1997. The plaintiff then lived in Crystal Brook. On the day of the collision she intended to visit her sister who lived in Gladstone which is 14 kilometres to the north-east of Crystal Brook. At about 11.15 am she set off on the 14 kilometre journey. She drove the family vehicle, a blue Mitsubishi Sigma, along a back road called Huddlestone Road which joins Main North Road on the southern outskirts of Gladstone.
Though it is not precisely correct, I will proceed on the basis that at the place of the accident Main North Road runs north and south and the two relevant intersecting side streets run east and west.
Main North Road on the approach to the southern outskirts of Gladstone firstly ascends what the witnesses have called the Georgetown Hill. Then there is a straight decent into Gladstone initially through a wooded area. The crest of the hill is some 250 metres south of the junction with Huddlestone Road, which intersects Main North Road on the western side. Some 50 metres north from the Huddlestone Road junction, Port Street intersects Main North Road on its eastern side. The speed limit on the approach to the junctions for northbound vehicles on Main North Road is initially 110 kilometres per hour (kph), but then some 60 metres south of the Huddlestone Road junction there is an 80 kph speed restriction. There are “give way” signs for traffic emerging from both Huddlestone Road and Port Street onto Main North Road. Prior to the Huddlestone Road junction there are line markings on Main North Road, which, for instance, permit a northbound vehicle to move across to the eastern carriageway to overtake. However, between the two junctions the markings clearly prohibit any such manoeuvre. Immediately north of the two junctions the Main North Road sweeps to the right, crosses a bridge and then there is a railway crossing. In the area of the two junctions there are numerous signs warning the northbound driver of the presence of some of these features (see Exhibits P1 and P2).
In all, I consider that a prudent driver heading northward to this scene would treat the 80 kph speed restriction as very much the maximum allowable.
The first plaintiff said that she remembered leaving Crystal Brook at about 11.15 am on the 24^th May 1997. She had occasion to use her right turn indicator in Crystal Brook and according to her they functioned correctly (72). She was wearing her seatbelt (78). At about 11.30 am she had a memory of passing the flood ditches on Huddlestone Road. Her next direct memory is that of the collision itself (73, 74). She had made this journey to her sister’s place regularly and, without objection, gave evidence of her usual practice. She said that if there was no northbound traffic approaching from her right, without stopping, she would turn left onto Main North Road in second gear and then proceed north to the junction with Port Street at a speed between 20 and 30 kph (74, 75). Then having activated her right hand turn indicator she would turn right into Port Street (75). An examination of the indicator globes of the Sigma after the collision showed that the right indicator was operating at the time of the collision (see Exhibit P2). Further, defendant’s counsel indicated that there was no contest that the right hand turn indicator was engaged as the first plaintiff drove her Sigma toward the mouth of Port Street (563). As indicated, the plaintiff’s next memory is the impact itself.
The mechanics of the collision are not controversial. The white Camry driven by the defendant, in the course of overtaking the Sigma, struck the driver’s side door area of the Sigma as it began turning into Port Street. The brunt of the impact was borne by the left wing area of the Camry and the driver’s door of the Sigma (see Exhibit P2). Further, there is no dispute that the pattern of damage indicates that the angle between the two vehicles at impact was something less than 30 degrees (see Exhibit P2). The point of impact was on the eastern carriageway of Main North Road at the mouth of Port Street.
The first plaintiff said that she recalled speaking with the defendant at the scene as she sat stunned in the vehicle. According to her, the defendant said, in answer to her enquiry about what had happened, “Oh I hit you” (79). Then later the first plaintiff said that the defendant added, “Thank God I have insurance”, to which the first plaintiff alleged that she responded “Just as well as you do mate because I’ve only got Third Party” (79).
The first plaintiff was taken by ambulance to the Laura Hospital (81). She apparently spoke to Senior Constable Pearson at the hospital (Exhibit D7). She was released four or five hours later and upon arriving home wrote out a statement of what had happened (86; Exhibit D3). She said that the statement was, in part, a reconstruction by her of what she deduced must have happened. For instance, in the statement she asserted “... I reached the end of Gladstone Road, to turn left I saw no vehicles approaching from Georgetown and proceeded up the Laura Road about 100 feet or so and indicated a right hand turn onto Port Street ...” (see Exhibit D3), whereas in her evidence she said she had no memory of the circumstances leading up to the collision after passing the flood ditches.
The defendant said that on the morning of the collision he was driving his parents white Toyota Camry from Georgetown to Laura through Gladstone. He said that as he descended the Georgetown Hill he was travelling at 100 to 110 kph. When he reached the 80 kph speed sign he said he braked slightly (787). He said he first saw the Sigma when he was “... coming out of the pine trees ...” which he said were “before” the 80 kph speed sign (786). He said that upon entering the 80 kph speed zone his vehicle was travelling “... around about 80 kms...” (787). At about this time he said that the Sigma drove out onto Main North Road from Huddlestone Road. The photographs demonstrate that from a point well south of the 80 kph sign a driver of a northbound vehicle descending Georgetown Hill would have a clear view ahead of the junctions (see Exhibit P2). The defendant’s evidence of what happened was as follows:
“Q.As you were going into the 80 kay (sic) zone, how fast were you travelling at that point.
A.I can’t recall.
Q.You told us you were going about 110. Do you know what speed you slowed your vehicle to.
A.Around about 80 case (sic).
Q.Do you know whether you had reached that speed of 80 kays (sic), at are (sic) or about the 80 kay (sic) zone.
A.Around about then.
Q.As you were going into the 80 kay (sic) zone, could you see the vehicle that had been on Huddleston (sic) Street.
A.Yes.
Q.What was that vehicle doing as you had got into the 80 kay (sic) zone.
A.Turning on to the main road.
Q.What did you then do, having seen that vehicle do that.
A.I just went out around it, to avoid a collision.
..............................
Q.     Do you know approximately when it was that you actually changed lanes.
A.     No.
Q.     Was it before, at, or after the Huddleson (sic) Road intersection.
A.     Would have been before.
Q.Can you tell us whether that overtaking manoeuvre that you have described, was a gentle manoeuvre, a sudden manoeuvre or some other manoeuvre.
A.Just my instinct was to go out around there because it seemed to be clear the other way.
Q.When you say ‘clear the other way’.
A.There was no oncoming traffic.
Q.You said in answer to the previous question that you changed lanes or did this manoeuvre to avoid a collision. What did you mean by that.
A.Avoid running up the back of her.
Q.At the time that you have described her pulling out in front of you in the manner you have described, you have told us that you went around her, overtaking. Did you consider any other options as to what you could do.
A.No, it’s just a split second decision.
Q.Did you have brakes on the car.
A.Yes.
Q.Do you know if they were operating.
A.I assume so. I get it serviced quite often.
Q.On your travels along Main North Road, had you applied your brakes at various times.
A.Yes.
Q.When this person pulled out in front of you, did you apply your brakes.
A.I can’t recall that.
Q.Do you recall if you gave any consideration to applying your brakes rather than overtaking.
A.Can you elaborate on that please?
Q.You have told us that you were overtaking. My question is simply whether you thought about braking rather than overtaking.
A.No.
Q.Why was it that you decided to overtake. I know you said to avoid a collision, but why that particular manoeuvre.
A.It seemed pretty safe for both parties, I assumed.
Q.By that, what do you mean ‘it seemed pretty safe’.
A.I was hoping not to collide in the back of her, you know, cause an accident.
Q.Had you not overtaken, did you form a view as to what might have happened in terms of –
A.No.
Q.When you say it was safe for you, what made you come to that conclusion.
A.I looked before I overtook. There was no cars coming. I thought ‘Well, it might be all right then’.
Q.When you overtook, do you know roughly how fast you were travelling at that time.
A.80 kays (sic).”
(787, 788, 789)
The defendant went on to say that as he drew alongside the Sigma it “cut across” his vehicle and so the collision resulted (790). He said that he did not see the indicator of the Sigma, but that he was not looking for it because he assumed that the Sigma was going straight ahead (793, 805). He denied the conversation as related by the first plaintiff. He alleged that at the scene the first plaintiff asked where she was or what was going on and complained to him that she did not have insurance (792, 817).
There were two eye witnesses to the collision, namely Craig Tybell, who was called by the plaintiffs, and Andrew Humphris, who was called by the defendant.
Mr Tybell was not known to the parties. He witnessed the collision from the rear verandah of a house which was located at about the south-western corner of the junction of Main North Road and Huddlestone Road. The verandah was on the northern side of the house and afforded a view of Main North Road down to the junctions. There was some foliage, which, in places, interrupted the view. However, his evidence of what he saw and heard was clear (266). He said that he saw the Sigma on Huddlestone Road approaching the junction and at the same time he heard the road noise of the approaching Camry (247). He watched the events unfold. He saw the Sigma turn onto Main North Road and at about that time the Camry was “just before the 80 kph zone” (250, 269). He indicated to the engineer, Mr Hall, that the Camry was 95 to 100 metres from the junction (ie 35 to 40 metres south of the 80 kph sign) when the Sigma emerged (565; Exhibits P1 & P2). He said that he saw the Sigma proceed north towards the right hand junction with Port Street and he estimated its speed at about 20 kph (251). He said that at a place “just before the Huddlestone Road turnoff” he saw that the Camry was on the other side of Main North Road and was apparently about to overtake the Sigma (251, 252, 270). He estimated the speed of the Camry at that time as 100 to 120 kph (252). Mr Tybell said that when he first saw the Camry south of the speed restriction sign its speed was then 100 to 120 kph and that in his view the speed did not change as the Camry travelled northward down to the junctions (258, 259). In particular, he said that he did not see the Camry slow at all (271). He said that he thought there would be an accident because of the speed of the Camry. He said in particular “... there was plenty of room for – there would have been plenty of room for him to slow down ...” (265).
The remaining eye witness was Andrew Humphris. He was a local farmer and was well known to the defendant and the defendant’s family. He happened to be travelling behind the defendant towards Gladstone at the time of the collision. Mr Humphris’ evidence is difficult to summarise because, though he was familiar with the area, his estimates of speeds, distances and the relative locations of features of the scene were wildly awry. He frankly said, from time to time, in his evidence that he was “guessing” (753). My impression was that he meant that literally. However, he said that he saw the defendant’s brake lights come on when the defendant’s Camry reached the speed restriction sign and the thrust of his evidence was that the Sigma emerged from Huddlestone Road onto Main North Road and so embarrassed the defendant that he had no option but to attempt to overtake the Sigma to avoid a collision.
The engineer, Mr Chris Hall, of Hall Technical Services Pty Ltd, also gave evidence. He attended the scene on the 31^st May 1997 where he spoke with Mr Tybell, took measurements and some photos. He provided two reports; one to the plaintiffs’ solicitors and the other to the defendant’s solicitors. The reports, a plan and the photographs are before me (see Exhibits P2, P3). In addition, Mr Hall gave evidence. In his evidence he confirmed the reports and provided reaction times and various calculations. He said that the only fresh skid marks in the area were those depicted on the plan on Main North Road near the point of impact at the mouth of Port Street. Mr Hall said that the absence of other skid marks indicates that there was no emergency application of brakes by the defendant prior to the mouth of Port Street. He made it clear that it was not possible to infer from the absence of other skid marks that a modest application of brakes short of causing a skid mark did not occur prior to the said junction (565).

In his report of the 28^th August 1997 (Exhibit P2), and in his evidence (575‑581), Mr Hall attempted to recreate the collision. His starting place was the assumption of two crucial facts, namely:
·that when the Sigma drove onto the Main North Road from Huddlestone Road, the Camry was approximately 100 metres south from the said junction; and
·that the Sigma averaged 30 kph as it travelled the 50 metres between the junction of Huddlestone Road and the mouth of Port Street where the impact occurred.
He drew the assumed facts from what he was told at the scene by Mr Tybell on the 31^st May 1997 (see Exhibit P2 and 564, 565). He then reasoned that for the time it took Mrs Hardy to drive her Sigma the 50 metres to the point of impact, Mr Barberien drove his Camry 150 metres being 100 metres to the Huddlestone Road junction and then 50 metres further to the point of impact in the mouth of Port Street (Exhibit P2 at pp2 and 3). Armed with the following calculations:
·at 110 kph which is 30 metres per second, a vehicle would take 3.3 seconds to travel 100 metres (572);
·at 120 kph a vehicle would take 3 seconds to travel 100 metres (573); and
·at 30 kph a vehicle would take 6.5 seconds to travel 50 metres (575).
he contended as follows:
“Assuming that the Camry travelled at 110 kph, reducing to 80 kph over the last 50 metres prior to entering the 80 kph zone, then it would have taken approximately 6.5 seconds for the Camry to reach the API once Ms Hardy had entered Main North Road. In that time, she would have covered the 50 metres at an average speed of almost 30 kph, which is consistent with Mr Tybell’s recollection of her movement.
Ms Hardy’s vehicle would have been visible to the driver of the Camry once she had entered Main North Road. Allowing for an average reaction time of 1.5 seconds, the Camry could have been slowed to 30 kph before reaching Ms Hardy’s vehicle under a moderate level of braking. In fact, the extra time taken to cover the distance between the two vehicles as a result of slowing the Camry to a speed slightly less than 80 kph (if in fact that was the speed of the Camry) would have permitted Ms Hardy to complete her turn into Port Street.”
(see Exhibit P2 at p3)
He then concluded that a moderate amount of braking by the defendant would have avoided the collision and that the first plaintiff did not fail to give way (see Exhibit P2 at p2; 578, 579). As indicated, the decision as to whether the first plaintiff failed to give way is one for me as Mr Hall himself acknowledged.
I note that Mr Hall’s above exercise did not precisely take into account the 20 metre width of Huddlestone Road which had to be traversed by the defendant en‑route to the point of impact. In later calculations made by him in the course of his evidence he does account for it (581, 582). The answer to that query is probably that he took Mr Tybell’s indication at the scene of the accident, namely that the Camry was 95 to 100 metres from the Huddlestone Road junction at the time the Sigma pulled out, to be a general indication only.
Of course this exercise is dependent upon the assumptions being established in evidence. For instance, Mr Tybell in his evidence, though pressed, did not categorically place Mr Barberien’s Camry 95 to 100 metres from the Huddlestone Road junction at the time of the emergence of the Sigma. He said merely that the Camry was then “before the 80 kph sign” (250), “near the 80 kph sign” (265), “blue car was out on Main North Road when the white car reached 80 kph sign” (269). So too the evidence does not precisely support the assumed fact that the Sigma was travelling at an average speed of 30 kph between the two junctions. Mr Tybell said that the Sigma proceeded over this distance at 20 kph (251). When asked by reference to her usual practice what was the speed of her vehicle when travelling between the two junctions the first plaintiff said:
“I could only estimate somewhere between 20 and 30 kph. The cars moving but very slow”.
She added that it was her usual practice, if there was no northbound vehicles approaching to drive onto Main North Road without stopping and continue to Port Street in second gear (74). It is notable that the first plaintiff later said that the Sigma had to be towed away from the accident scene because it was jammed in second gear (77).
Despite those misgivings, Mr Hall’s exercise sets out some helpful parameters.
Senior Constable Brenton Irrgang was called by the defendant and the statement of Senior Constable David Pearson was tendered by consent (see Exhibit D7).
Constable Irrgang attended the scene of the collision and later on the evening of that day attended at the plaintiffs’ home. There, he was given the statement compiled by the first plaintiff (Exhibit D3). By that time, he had concluded, somewhat prematurely in my view, that the first plaintiff had “failed to give way” (772). This upset both the plaintiffs. He gave the first plaintiff an expiation notice for that offence and on the notice he noted her response to the allegation (772-3; Exhibit D6). Clearly Constable Irrgang’s opinion, like Mr Hall’s contrary opinion, is not admissible for the purpose of establishing responsibility in this action. That is a matter for me.
Senior Constable David Pearson spoke to both the first plaintiff and the defendant at the Laura Hospital. He asserted that the first plaintiff was very concerned about how the accident had occurred and stated that she had not seen the other vehicle coming (see Exhibit D7).
Such is the summary of what the witnesses said on the issue of liability. Apart from issues of credibility and reliability, the liability questions raised for me are whether the collision was caused by:
·the first plaintiff failing to give way to the defendant;
·the defendant’s excessive speed coupled with overtaking when it was dangerous to do so; or
·a bit of both.
Credibility and reliability as to liability issues
The credibility and reliability of the first plaintiff’s testimony as to the collision was challenged. The defendant’s counsel contended that the first plaintiff’s loss of memory, as to the circumstances immediately leading up to the impact, was a disingenuous attempt to mask the fact that she had negligently failed to see the approach of the Camry. To establish this lack of credibility, the defendant contended that the statement handed to Constable Irrgang (Exhibit D3), on the evening of the collision and her response to Irrgang’s accusation that she had failed to give way (see Exhibit D6; and 773), in part, was inexplicably inconsistent with her evidence. I do not accept that those apparently inconsistent statements undermined her credit. Her explanation that she innocently reconstructed what had happened is not unreasonable (153, 159). I note that she told Dr David Rogers at the Laura Hospital that she had “... no memory of the event ...” (Exhibit P5). She said much the same to Senior Constable Pearson at the hospital (see Exhibit D7). So the statements to Pearson and Dr Rogers are actually consistent with her evidence. Also, apart from being able to sidestep the discomfort of some cross-examination, the first plaintiff does not have much to gain from having such a convenient memory loss, because it is clear that the Camry had to be approaching within the 250 metres which stretched back up Georgetown Hill and was probably in view as she drove onto Main North Road.
So I accept that the first plaintiff was a truthful witness. There was a mixture of direct recall and innocent reconstruction in her evidence and so, some care is required in evaluating it. There were attacks on the credibility and reliability of the first plaintiff’s evidence as to her injuries and disabilities. I will deal with those when I come to quantum.
I reject that part of the defendant’s evidence where he claims that he believed that he had but two options open to him, namely overtake or collide. I consider that the prospect of a collision was included in the defendant’s evidence as an afterthought. Such was evident from not only what he said but also from the way he said it. Whether it was an innocent rationalisation, reconstruction or a falsehood does not matter. I would accept that it was an innocent reconstruction provoked, no doubt, by the realisation that he had been seriously wrong about the assumption he had made that the Sigma was proceeding northward into Gladstone.
It emerged from Mr Tybell’s evidence that in a previous trial, involving a property damage claim, he declined to estimate the speed of the Camry but said only that it was “fairly fast” (258, 259). This of course was in contrast to his evidence in this action. He explained that he felt able to give an estimate because he had “... thought about it a bit more and I’ve had a lot more driving experience now, and yes its part of my daily experience” (259). He was there referring to the fact that for 12 months prior to giving evidence in this trial he has been driving trucks for a living (276). I do not regard this change of stance as impacting on the reliability of his evidence. I regard Mr Tybell as a truly independent witness who was both credible and reliable.
I am disinclined to rely upon the detail of the evidence of Mr Humphris. Whilst I accept that he was truthful and genuinely attempting to tell the Court what he saw, I consider that much of what he said was unreliable guesswork.
There was no challenge to the reliability of Mr Hall’s evidence. Both sides relied upon this testimony as I do.
Findings as to the collision – apportionment of responsibility
I find that the first plaintiff, without stopping at the give way sign, turned out onto Main North Road at about 20 to 30 kph and would have accelerated slightly as she drove the 50 metres to Port Street. At that time, the northbound Camry was no less than 35 to 40 metres south of the 80 kph sign. I accept and find that the Camry was travelling at about the speed limit of 110 kph at that time. In this finding, I accept Mr Tybell’s evidence as to the speed of the Camry as the Sigma emerged onto Main North Road. I find that the Camry probably slowed a little in deference to the speed restriction sign but not to 80 kph. Again, in this finding, I rely upon Mr Tybell who perceived no slowing down by the Camry. The defendant himself was reticent about asserting that his speed reduced to 80 kph at or before the sign. At an early stage the defendant decided that he would overtake the Sigma rather than slow down to accommodate it. I consider that only in a technical sense did the Sigma fail to “give way”. I find that the defendant had ample time and distance to comfortably slow down, but rather he determined to overtake the Sigma. In doing so, he quite carelessly assumed that the first plaintiff was intending to proceed northward. He was familiar with the area and was no doubt aware of not only the road markings but also the proximity of the junction of Port Street. In any event, those road features were obvious. He failed to acknowledge the very real possibility that the Sigma might have been turning into Port Street. Rather, he pressed on failing to notice the flashing right indicator light, which must have been operating at some stage in the journey of the Sigma on Main North Road before the impact.
I turn then to the question of the apportionment, and the application of the principles discussed above.
The first plaintiff in my view was negligent in emerging onto Main North Road into the path of the northbound Camry. It may be that the Camry was some distance off but nonetheless she disobeyed a give way sign and drove onto Main North Road at a relatively slow speed at a place where the speed limit was the moderately high speed of 80 kph. Further, she should also have anticipated the prospect that northbound vehicles such as the Camry approaching the township may not immediately comply with the speed restriction sign. Also, the first plaintiff should have consulted her rear view mirror before engaging her right turn indicator. If she had done so, no doubt she would have abandoned the turn when she became aware of the defendant’s vehicle looming down on her.
The defendant too was negligent and seriously so. On my findings he had ample time to slow and accommodate the first plaintiff’s vehicle. A moderate amount of braking would have avoided the collision. Instead, he made an incorrect assumption about her intent and committed himself to overtaking. It is evident from the lack of skid marks other than near the point of impact that, on the journey to the point of impact, there was no emergency application of brakes. To overtake between the junctions as the defendant did was fraught with risks and the road markings prohibited that. As I have previously indicated, this was a busy entrance to a township and a reasonable response by a northbound motorist in the defendant’s position would have been to wait back.
I do not need to make findings about what conversation took place at the scene, but if driven to do so I would accept what the first plaintiff said in preference to that of the defendant.
In the circumstances of this collision I consider it superficial to simply look at the collision in terms of a failure to give way. In my view, the situation requiring a “giving way” had all but passed.
I consider that the defendant is much more culpable than the first plaintiff. He had it in his hands to make a minimal adjustment to his driving, to avoid conflict with the first plaintiff’s vehicle. Rather, he pressed on and overtook in a place where it was quite dangerous to do so.
Accordingly, I apportion liability 80 percent 20 percent in favour of the plaintiff. In other words, I find that the defendant is 80 percent at fault. I now turn to the issue of quantum.
Quantum
Pre-existing conditions or susceptibility – other causes – onus of proof – causation
In this case, the defendant has contended that the first plaintiff’s life prior to this accident was “full of stressors” and that her present psychiatric condition cannot be wholly attributed to the collision. Further, it has been contended that her chronic use of marijuana has caused the nausea, vomiting, forgetfulness and loss of concentration claimed by her as part of her psychiatric or psychological injury.
It is trite law that the plaintiffs must prove on the balance of probabilities that the negligent driving of the defendant has caused the claimed injuries. In particular, what must be proved is that the neglect caused or “materially contributed” to the damage (see Bonnington Castings v Wardlaw [1956] AC 513; Birkholz v RJ Gilbertson Pty Ltd (1985) 38 SASR 121 per King CJ at 130).
If the plaintiffs have established a prima facie case that the injuries have resulted from the defendant’s negligence, then the onus of establishing some other cause rests upon the defendant (see Purkess v Crittenden (1965) 114 CLR 164 at 168).
So too, it is no answer for the defendant to say that given the pre-existing stressors in the first plaintiff’s life, she was unusually susceptible to have an extreme reaction to the injuries suffered by her in the collision. The defendant must take the first plaintiff as he found her (see Pipikos v W Brown & Sons Pty Ltd [1970] SASR 508 per Bray CJ at 514). Of course the defendant cannot be liable for disabilities which were inevitably going to arise irrespective of the accident unless the accident exacerbated the disability or accelerated its onset and in either event the defendant will be liable only for the exacerbation or the extent of the acceleration.
Background circumstances – personal history – medical history
I find that the background circumstances and history are as follows. There was no contention about these matters.
The first plaintiff was born in Sydney on the 19^th September 1960. She was one of six children. Her father was in the RAAF and consequently the family lived an itinerant life, which included residing in Penang in Malaysia. In 1969, her parents separated and eventually divorced, and in 1974 her mother re-married a truck driver. The family’s itinerant life continued. Eventually they settled in Springwood in the lower Blue Mountains area of New South Wales. By 1976, the first plaintiff had reached the fourth year of high school. She left then pregnant with her first child Nathan who was born on the 1^st October 1976. With the assistance of her mother, who cared for Nathan, she began working as a waitress in the Blue Mountains area. In about 1978, she met Don Roberts who was an Industrial Designer and commenced living with him at Wentworth Falls. Then in about 1980, she abandoned waitressing work and for two years operated a small craft shop in Katoomba. After that, together with Mr Roberts, and another couple, she ran a business, again in Katoomba, called ‘The Warranah Woodcraft Gallery’. She developed an interest in crafts and antiques and in particular in Art-Deco. In order to help her maintain the books of the business, she commenced accountancy studies at the Katoomba Technical College. She completed the first stage of that course in 1984 (Exhibit P7). In 1985, she had an ectopic pregnancy. After its removal she was told that her chances of a normal pregnancy were “one in a million” (32). Mr Roberts was not keen to have children. The first plaintiff was and this disagreement caused the relationship to end. By that time, that is in about 1985, the first plaintiff was studying a more advanced accountancy course at the Penrith TAFE. By 1986 she had finished the third year of that four year certificate course. She did not complete the fourth year because on the 11^th August 1986, she obtained a full-time job as a clerical assistant at the Australian Taxation Office in Parramatta (44). After completing an “in-house” course, she moved into Assessing work and then later into the Compliance section. She was the union representative and continued studying. At that time she was living alone in Springwood. In 1987, she met her present husband, Matthew Roland Hardy. They married on the 11^th November 1989.
In the early years of the marriage both plaintiffs spent a considerable time travelling to and from their respective places of work. They decided to relocate, and to that end, the first plaintiff sold the Springwood home and left her job at the Australian Taxation Office at Parramatta. She moved to her brother’s house on the central coast in the Gosford area. She was intending to seek a job with the Australian Taxation Office in Newcastle and was waiting for her husband Matthew to terminate his work. At about this time, they visited with the first plaintiff’s brother, Brian Hodgson, who was living and working in Port Pirie. Brian’s spouse had abandoned him with two infant children and he begged his sister for help. Both plaintiffs agreed to help. They abandoned their plans to live and work in New South Wales, and in November 1991 moved to South Australia. In February 1992, they, together with Brian Hodgson, purchased a home with a “granny flat” in Crystal Brook. The second plaintiff took whatever work was available in the area, namely at the silos at Gladstone and at the Port Pirie abattoir. In July 1992, Brian Hodgson moved to Queensland and lost contact with his children. He continued to pay the plaintiffs maintenance. So the plaintiffs settled into life in Crystal Brook.
In 1993, together with a partner, Ms Helen Westlake, the first plaintiff took over a business called ‘Old Wares and Bygones’ in Crystal Brook. Indeed, the business was previously owned by the first plaintiff’s mother, Mrs Pamela Clifford. She had earlier come to South Australia, and in particular to the Crystal Brook area to “keep an eye on” her son Brian and his children (52). The first plaintiff and her partner had decided to “give the business three and a half years” to produce a living wage for them (56). It could not achieve that. Indeed, the business was not productive enough even to affect the plaintiffs’ entitlement to Social Security benefits. Accordingly, in August 1996 the partners sold the business to a Mr Barry Tyrrell, a truck driver for $15,000.

In about 1996, both plaintiffs joined the In Vitro Fertilization (IVF) program at the Queen Elizabeth Hospital. They had been trying to have children and indeed in 1995 the first plaintiff had another ectopic pregnancy. By the eve of the accident the plaintiffs had had two unsuccessful transfers – the first in November 1996 and the second in January 1997. There was a third transfer in May 1997 just prior to the accident and it also failed. The first plaintiff discovered that shortly after the accident.
In about the beginning of 1997, Mr Tyrrell sold the business to a Mr Trevor Matthews, who was a friend of the first plaintiff’s mother, Mrs Pamela Clifford. The first plaintiff worked two to three days per week in the business with her mother who managed the shop. The plaintiff was paid $10 per day and she was able to sell her own goods on consignment.
As far as her previous medical history is concerned, apart from the two ectopic pregnancies, the first plaintiff fell and injured herself at work in 1984 and she also suffered with asthma. Neither of these two matters impact on this assessment. In August of 1995, the first plaintiff was referred by her local general medical practitioner, Dr Peter Oliver, to the gastroenterologist, Dr Geoffrey Gibson, with a history of abdominal pains. Dr Gibson noted much stress in the plaintiff’s life. He considered that she could be suffering from a family problem of gallbladder disease. An endoscopy of her stomach conducted in Port Pirie was normal. Scans eliminated gallbladder disease. The first plaintiff related the stomach pains to the ingestion of “fatty” foods. She denied that stress had played a part and said that when she stopped eating “fatty” foods the pains subsided (456-460). Dr Gibson did not gainsay that (827). The contention in Dr Gibson’s report and his evidence that the first plaintiff suffered with stress and anxiety is relevant to this assessment concerned as it is with, inter alia, whether she suffered a post-traumatic stress disorder as a result of the collision or some lesser emotional trauma.
Credibility and reliability as to quantum issues
There is considerable contention about precisely what injuries and disabilities resulted from the collision. Despite the clear thrust of some of the cross-examination, in the end counsel for the defendant, Mr James, did not contend that I should regard the first plaintiff as untruthful. He did however challenge her reliability. As in the case of her evidence as to the way in which the collision occurred, I accept that she was basically a truthful witness and in particular I accept her explanations about the inconsistencies in her presentation to the various medical practitioners involved in this case. Again, as in the case of liability I direct myself that some care needs to be taken in weighing up the first plaintiff’s evidence not because she was untruthful, but because there has been some confusion and reconstruction in her recall of her injuries and symptoms and a tendency to describe her ailments in rather florid and exaggerated terms in order to emphasise their seriousness. After all, the accident was almost six years ago.
There was no sustained challenge to the credibility and reliability of the quantum witnesses on both sides, all of whom I accept as credible and reliable.
The collision 24^th May 1997 – aftermath
The following narrative constitutes my findings. Where there are contentious areas I will identify them and specifically set out my findings.
It is clear that as the Sigma began its turn to the right the Camry was drawing abreast of it. The defendant, realising that the Sigma was turning, braked heavily but to no avail. The left front wing of the Camry struck the Sigma. It must have been a considerable impact. The Sigma spun anti-clockwise and slewed off the western edge of the Main North Road down an embankment. It eventually came to rest some distance from the point of impact.
The first plaintiff suffered a severe jolting in the impact, the brunt of which was absorbed by the right side of her Sigma and no doubt transmitted to the right side of her body. She was wearing a seatbelt and the restraining effect of the belt probably contributed to the whiplash straining injury which I am satisfied she suffered to her spine. Her head probably struck the driver’s side window. It was shattered and there was a haematoma on the right side of her head (82).
The first plaintiff remembered her driver’s side “coming in” (75). She had started the turn. Then she recalled her vehicle spinning. She said that she hung onto the steering wheel in a dreamlike state as the vehicle spun and then sped forward down the embankment (75, 76). She said that as this was happening she gathered that she was in a motor vehicle collision. She said “I had a very distinct feeling that I didn’t know where this was going to end and I could die when it stopped” (76, 209, 210). Eventually the vehicle came to rest. Whilst attempting to extricate herself from the vehicle with the encouragement of bystanders she found that she could not feel her legs and feared that she was paraplegic. This feeling passed quickly as she became aware that her legs were trapped under the pedals of the vehicle (77, 78, 210).
She was taken by ambulance to the Laura Hospital where she remained under observation for some five hours after which time she was discharged into the care of her husband. She was anxious at the hospital about the prospect of losing the two transferred embryos (85).
In addition to the generalised bruising and soreness, which she sustained in the collision, she suffered the following injuries:
·concussion;
·soft tissue injury to the right shoulder;
·musculo-ligamentous injury to the spine generally, but in particular the neck; and
·psychological or emotional reaction to the, collision the precise nature of which was the subject of some dispute which I will resolve in due course.
On the morning following the collision, the first plaintiff found that she was not only sore and bruised, but also nauseous. She returned to the hospital. She was prescribed valium and after half a day was again sent home (87). Several days later she had her menstrual cycle and so the third transfer had failed (90). She blamed the accident for this (122). There was no evidence which supported that belief and so I cannot accept that as a fact. In those first days she was virtually bedridden. She was unable to undertake any household chores at all. The nausea and vomiting continued. She ached all over. She was unable to return to work at ‘Old Wares and Bygones’ (90).
In the initial weeks following the collision the first plaintiff rested at home. She regularly consulted her local general medical practitioner, Dr Peter Oliver, in Crystal Brook. She had pain and soreness to her neck and back. Her legs were sore and her right shoulder was painful. Compounding these injuries was persistent nausea, vomiting, memory loss and feelings of anxiety. She was initially treated with analgesic and anti-inflammatory medication. She underwent physiotherapy at the Crystal Brook Hospital for approximately two months. The relief was temporary (88). To address the anxiety problems she consulted a psychologist in Port Pirie, Kosta Lebessis, who over a period of some six months from July 1997 to January 1998 treated her with relaxation therapy (Exhibit D5). The “anxiety symptoms”, in particular, nausea and vomiting, persisted.
Some four to six weeks after the collision, in the course of attempting to play hopscotch with her children, she experienced pain extending from her hip area down into her right leg (102). At this time she was continuing to experience neck, shoulder and back pain. She also had a lump in her right thigh which was tender to touch. Dr Oliver referred her to the orthopaedic surgeon Mr Adrian Munyard. He diagnosed soft tissue injuries to her neck, right shoulder, lower spine and determined the lump in the thigh was a haematoma. He related all these injuries to the accident. He eventually referred her to the neurologist Dr John Fewings for the purpose of investigating whether or not the blow to the head in the accident caused any neurological deficits which might account for the forgetfulness and mistakes. Dr Fewings saw her on the 30^th January and 2^nd October 1998. He found no neurological deficits to account for those problems (see Exhibit D4, p22) but in turn referred the first plaintiff to Mark Reid for neuro-psychological investigations. In his report of the 18^th March 1999, Mr Reid, who examined and tested the first plaintiff on the 18^th November 1998, concluded that there was no organic cognitive impairments which would explain the forgetfulness and lack of concentration.
I return to the narrative. As the months passed, the first plaintiff found that the pain in her right shoulder and the restriction in function was persisting. She could not elevate her right arm and could not carry out, in particular, the exercises prescribed by the physiotherapist (91). Further, she had problems sleeping which were caused by turning onto her shoulder. The resultant pain awoke her (95, 97). This problem also impacted upon her ability to do household chores (99, 100). She was unable to grip and take hold of, for instance, kitchen implements (99, 103). As a result of these ongoing problems, focussed as they were on the right shoulder, Dr Oliver referred her to the orthopaedic surgeon Mr Michael Henningsen who saw her on the 28^th July 1998 and a number of times thereafter. Mr Henningsen gave evidence and further, I have before me his three reports dated respectively the 2^nd September 1998, 19^th May 1999 and 12^th July 2001. He diagnosed her as having subacromial bursitis which is an inflammation of the sac or lining which overlays the supraspinatus tendon. An ultrasound examination of the shoulder disclosed a thickening or bunching of the bursa. Mr Henningsen’s clinical examination also disclosed a painful arc. He said that the first plaintiff’s complaints of pain, disruption of sleep and loss of power were typical of right shoulder bursitis (387). He administered three cortisone injections over a period of time (Exhibit P5; 387, 388), and they produced only temporary relief. Mr Henningsen did not agree that the first plaintiff was exaggerating her symptoms and further he did not consider that her shoulder problems would improve with the resolution of this litigation (397). He said that he found the first plaintiff to be an honest and reliable patient (397). He concluded that she had chronic bursitis which “should remain essentially unchanged” (403). I accept the evidence of the first plaintiff as to her shoulder difficulties and so too, I accept the evidence of Mr Henningsen. Insofar as it clashes with the material in the agreed report of Dr Robert Atkinson dated the 24^th September 1999 (see Exhibit D4), I prefer Mr Henningsen. I see no material disagreement between Mr Henningsen and Professor Robert Bauze whose report dated the 12^th February 2001 also is before me by consent. I assume the reference in Professor Bauze’s report to the first plaintiff’s “left shoulder injury” is an error.
As I said, the first plaintiff’s “anxiety symptoms” did not resolve. She had a constellation of symptoms which broadly speaking could be described as anxiety symptoms. They included lack of concentration, memory failures, feeling muddled, headaches, nausea, vomiting, irritability and anxiety about driving and being driven in a motor car (91, 104, 126, 281). For these problems Dr Oliver referred her to the psychiatrist, Dr Peter Herriot, who first saw her on the 19^th February 1998. He has seen her many times since. He diagnosed a post-traumatic stress disorder, together with symptoms of anxiety, panic and depression. He gave evidence supplementary to his three tendered reports (Exhibit P5). Dr Herriot’s reports and in particular the first dated the 28^th October 1998 do not set out any history that the first plaintiff feared for her life in the course of the collision. Professor Robert Goldney was called by the defendant. For medico legal purposes he saw the first plaintiff on the 4^th August 1999. When he took a history as to the collision from her she answered “no” to the question whether she had been scared (see Exhibit D4 at p2). So given that history and the absence of any recorded history of fear or terror or helplessness in the first report of Dr Herriot, copy of which he had, Professor Goldney, courteously took issue with Dr Herriot’s diagnosis of post-traumatic stress disorder in the following terms:
“... I can well understand that diagnosis, but I consider that when one takes a more detailed history, and in particular when one enquires closely about her feelings at the time of the accident, it is evident that the first criterion for such a diagnosis is not met. Thus Mrs. Hardy did not describe the intense fear or terror or helplessness that is required. Furthermore, there have been a number of issues which have been of importance in Mrs. Hardy’s overall emotional distress. It is also pertinent to note that Dr. Herriot has observed that “she says that she is not so much depressed as angry”, and I am confident that that is the case, as noted before.”
(Exhibit P4 at p10)
The first plaintiff had said in evidence that she feared for her life in the collision (76, 209, 210). When cross-examined about why in the light of her evidence of being afraid for her life she had told Professor Goldney that she was not scared, she sought to explain that when she arrived for the appointment with Professor Goldney she was considerably upset (214). The report of Professor Goldney supports that assertion (see Exhibit D4 p1). It was put to her that she had not related to any of the medical practitioners or the psychologists involved in her case the assertion she made in evidence, namely that she apprehended being killed in the collision (215). She protested that she had told Dr Herriot this (215, 216). Finally, it was put to her that her evidence was recently invented “for the purpose of bolstering her claim” (218). So this issue had relevance to both the credit of the first plaintiff and the validity of Dr Herriot’s diagnosis. As it turns out when Dr Herriot gave evidence, which was notably after the first plaintiff’s evidence, he said in evidence-in-chief as follows:
“My understanding was that it was a collision which involved a very substantial impact and Mrs Hardy reported that she thought she almost died from the accident, so certainly seemed to be a very serious accident”
(514)
Then the following exchange took place in the course of the cross-examination of Dr Herriot:
“Q.What I was particularly interested in is when it was that she gave you a history of a fear of death in the motor vehicle accident. Feel free to look at your notes, because on my quick glance, and admittedly an extremely quick glance, I couldn’t see anywhere in your notes, particularly the first history that she gave you, anything other than no memory of the accident.
A.When I saw her the first time, 19 February ’98, she reported that she almost died in the accident.
Q.Is that in your notes.
A.Yes.
Q.What does your note say about that.
A.‘Almost died. Why Diana not me?’
Q.What date was that.
A.That was 19 February 1998, the first time I saw her.
HIS HONOUR
Q.Lady Diana
A.Yes.
XXN
Q.Did she give you any history of fearing serious injury that she thought she may become quadriplegic or paraplegic in the accident.
A.No.
Q.The requirement for post-traumatic stress disorder, or one of the requirements, is a perception of death or serious injury. Is that right.
A.Yes.
Q.In fact, I think that is almost exactly the phrase that is used in the diagnostic handbook, death or serious injury. Did you ask her or make inquiries of her as to that perception of death that she had.
A.No. But one of the criteria also talks more, mentions a threat to physical integrity as well, which I took Mrs Hardy’s comments that she almost died to mean, that this represented a threat to her integrity.”
(523, 524)
If Dr Herriot had included that history in his first report, his colleague Professor Goldney may not have taken such an objection to his diagnosis. However, having been apprised of what Dr Herriot said in his evidence, Professor Goldney still adhered to his view that the diagnosis was not altogether justified. He contended that there were two aspects to this threshold requirement for the diagnosis of post-traumatic stress disorder, namely:
·trauma has to be significant and induce a fear of death; and
·the victim must react to that with a feeling of helplessness - that is being unable to do anything.
(591, 608)
Professor Goldney then said that in his view the first plaintiff’s reaction after the accident was of a highly organised person attending in a methodical way to such matters as providing statements to the police contacting insurers and the like (609). At the end of his testimony however, Professor Goldney accepted that the diagnostic criteria in DSMIV for a post-traumatic stress disorder was not clear as to “... when should that helplessness kick in or when should it finish ...” (623). He said that some of his colleagues did not interpret it as strictly as he contended for (624). I note that the first plaintiff did, in her evidence, convey a feeling of helplessness as her car was struck and flung about (75, 76, 209, 210).
The defendant’s counsel and Professor Goldney were caught by surprise by Dr Herriot’s evidence on this topic. I am unconvinced by this second line of defence to his diagnosis. Professor Goldney’s customary conviction was not there in the end. I prefer Dr Herriot’s view and diagnosis. But in the end, I consider this debate is about what label to put on this group of anxiety symptoms which I am content the first plaintiff suffered as a result of the collision. I note that Dr Herriot is of the same view (522). Indeed, Professor Goldney did not suggest that the first plaintiff did not have an adverse reaction to the accident. He diagnosed her as having “an adjustment disorder with anxious and depressed mood which would compromise her capacity to concentrate and function” (Exhibit D4).
On the 1^st August 1998, the first plaintiff was referred urgently to Dr Geoffrey Gibson a gastroenterologist because she said that she was vomiting blood. Dr Oliver specifically requested an urgent appointment for her (828; Exhibit D4). Dr Gibson’s investigations, namely an endoscopy, and multiple biopsies, eliminated a gastrointestinal cause for the vomiting and eliminated entirely recent vomiting of blood. He left open a psychological or psychiatric basis of a history of repeated vomiting. Indeed, he must also have left open the possibility of a neurological basis for it because he referred the first plaintiff to the neurologist Dr JP Rice who found no neurological basis for the vomiting (see Exhibit D4). I accept Dr Gibson’s evidence but I make it clear that I do not read his evidence as asserting that the first plaintiff was not vomiting regularly as a result of causes outside his area of expertise (843, 844). I note also that he left open the possibility that excessive doses of the painkiller Capadex, which the plaintiff was taking at the time, could cause severe nausea and vomiting (845). He regarded that as a probability in his report, but in a rather unconvincing way downgraded it to a possibility when questioned about it (845, 846).
By late 1998 the spinal pain, in particular in the neck area and headaches, were still present. In late 1998 the first plaintiff was referred to the neurosurgeon Dr Cindy Molloy who saw her on three occasions, namely the 2^nd October 1998, the 30^thOctober 1998 and, for the purposes of a medico legal report, on the 30^th October 2001. Dr Molloy concluded that the neck pain, headaches, nausea and vomiting were consistent with a musculo-ligamentous sprain of the plaintiff’s cervical spine sustained in the accident (see reports Exhibit P5). Whilst Dr Molloy accepted that the nausea and vomiting were symptoms of the neck sprain, she expressed some concern that they were so frequent and ongoing (323). When pressed about whether there were “non-organic” components in the first plaintiff’s presentation, Dr Molloy said that “... she didn’t give a high flavour of non-organic symptoms ...” (317). Further, Dr Molloy made it clear that her preferred diagnosis was of a musculo-ligamentous sprain to the cervical spine and not of post-concussion syndrome (310, 311). There is a suggestion of a post-concussion syndrome in, for instance, the evidence of Dr Burns. I prefer the evidence of Dr Molloy. As to the symptoms of nausea and vomiting, it is notable of course that the psychiatrist Dr Herriot ascribes those symptoms to the post-traumatic stress disorder. Whether it falls under the umbrella of the cervical neck sprain or the post-traumatic stress disorder is not crucial for this assessment. Suffice it to say that I find that the nausea and vomiting arose from the traumatic effects of the collision.

As to the frequency of the vomiting, I cannot accept that in the first 18 months (ie from the collision on the 24^th May 1997 to taking of Endep or Deptran in November of 1998), the first plaintiff was nauseous and vomited every day. To the extent that she asserted that such was the case, I consider it was to spell out in no uncertain terms the ongoing and debilitating nature of this problem. The following exchange in cross-examination exemplifies this:
“Q.Can I suggest that the reason why you are saying it in that way – vomited every morning, headaches every afternoon – is for the purposes of maximising your claim.
A.No. Maybe I should have used the word ‘most’.
(284)
I accept that it occurred regularly. That such was the case was supported in evidence by Ms Helen Westlake, the first plaintiff’s former partner in the antique shop (504), by Mrs Pamela Clifford, her mother (440, 441-5), and by her husband (625, 694). I accept these witnesses. This nausea and vomiting continued after a six month lull, but with less frequency (91, 92, 232). Further, while I accept that the first plaintiff from the time of the accident until about the time of resuming the IVF program in late January early February 2001 (142, 143, 144, 465) was smoking marijuana to excess, I am of the view that the defendant has not discharged the onus of proving that the marijuana use caused the memory difficulties, the vomiting or the headaches. Putting it at its highest, counsel, Mr James, had a mixed reaction from the medical witnesses to whom he put that proposition. Nor do I take the view that the failure to disclose the use of marijuana to the doctors and psychologists rebounded on the first plaintiff’s credit. I accept her when she said that she did not disclose it because it was not something she was proud of (473).
There were complaints of low back pain by the first plaintiff immediately following the accident and mention of this in the more recent medical reports, for instance, from Dr Burns and Professor Bauze. When questioned about this, the first plaintiff minimised its severity. She said that when the accident first happened she had some lower back pain, but it was something she did not have a positive memory of as the years progressed (487, 492). It seems to me, from all the evidence, the back problems seemed to be related to the right leg pain, which happened in the hopscotch game within months of the accident. The first plaintiff emphasised and I will proceed on this basis that her major problems as they unfolded in the years since the collision have been, and still are, neck pain and shoulder pain and the symptoms associated with her psychiatric condition.
In due course, the first plaintiff returned to work at the antique shop. Her evidence about precisely when that occurred is rather imprecise. Several times she said that it was about two months after the collision (129). I find that she returned to the shop to work in November or December of 1997 and remained working until about February 1998 (347-350). She was working three days a week from 10.00 am to 5.00 pm helping her mother. I accept that the hours, and indeed the timing of this work, was probably not as precise as that. Then in February 1998 she was told that her services were no longer required. Her evidence was, and I accept it to be so, that she struggled with the work at the shop because of her injuries. The second plaintiff helped her with some of the work (130). Her mother, Mrs Pamela Clifford, made it clear that she was terminated because she was not coping with the work and was making costly mistakes (413, 434).
In the course of the time following the collision, the first plaintiff found that she could resume only on the less vigorous household chores and even those were painful. The second plaintiff carried out the chores which required vigour such as cleaning the bath and scrubbing the floors (99). The first plaintiff was no longer socially outgoing and extroverted, rather she became irritable and difficult. This impacted upon the family’s social activities particularly those connected with school and the children (125). The physical relationship with her husband was seriously impaired (132, 133). Sexual activity was scarce. Being hugged was painful for her (97). She lost weight (100).
The family always had a plan to move down to Adelaide to enable Sarah and Peter to go to High School and the first plaintiff was then intending to return to work at the Australian Taxation Office (110, 139). The discovery that Sarah was allergic to horse hair was an additional impetus (460). So the plaintiffs commenced the slow renovation of the Crystal Brook house with a sale in mind (461). In April 2000, the first plaintiff and the children moved to Adelaide and in particular to the first plaintiff’s sister’s place in the Noarlunga area. The second plaintiff remained in Crystal Brook overseeing and working at the renovation of the house. He visited his family regularly until in about September or October of 2000 when he fell out with the first plaintiff’s sister. At about this time the plaintiff’s were not getting on well and they “officially separated” (463-465). The first plaintiff was, during this time, seeing Dr Steven Burns in Old Reynella. She also continued to consult the psychiatrist Dr Peter Herriot at the Noarlunga Centre. In general terms, her aches and pains and the emotional distress continued.
In late January or early February 2001, the plaintiffs, though not living together, returned to the IVF program (465). The first plaintiff became pregnant in February 2001 (107). By this time, she had stopped using marijuana and also ceased taking medication (233). On the 17^th May 2001, the family reunited and moved into a Housing Trust house at Third Avenue, Woodville Gardens (105, 463, 467). The house at Crystal Brook was then on the market but still unsold.
The first plaintiff’s problems of concentration and memory were slowly resolving such that she was able to undertake a three day course with the Australian Taxation Office to equip her to become a “taxation volunteer” (108, 109). She then, on a voluntary basis, assisted people whose income was under $30,000 complete their tax returns. She did this honorary work at the Cheltenham Community Centre (108, 109).
On the 16^th October 2001, the first plaintiff gave birth to twins, Luke and Matilda (107). It was not until October 2002 that the Crystal Brook house was sold (465). The only income the family now has is Social Security payments (141). The first plaintiff is hoping to return to employment in the Australian Taxation Office (108).
So, the above are my findings as to the collision, its aftermath and the general circumstances of the family.
Residual disabilities - Findings
I find that the first plaintiff continues to suffer with pain and discomfort which she describes as a “dull ache” in her neck extending to the scapula area. Associated with this soft tissue injury are occasional headaches. This neck injury could also be contributing to nausea, which I accept she experiences in the morning from time to time. The vomiting has all but ceased.
Further, the first plaintiff has right shoulder bursitis which is likely to be a permanent source of pain, discomfort and restriction. The shoulder is painful and sensitive to pressure and, together with the neck pain, the level of discomfort can flare up depending on what activities the first plaintiff engages in. For instance, lifting and holding her infant children can, after some time, cause debilitating aching.
The other physical injuries which were the focus of complaint have either resolved or are no longer seriously disabling. I include in these the right leg pain, the low back and the bruising to the elbows.
Some of the symptoms of the post-traumatic stress disorder have largely resolved, such as the lapses of memory, visual disturbances and the lapses in concentration. However, the first plaintiff is still anxious, impatient, sometimes depressed, moody and irritable. In particular, she is apprehensive about embarking upon the effort needed to re-enter the workforce – an apprehension uncharacteristic of her before the collision. Further, she is concerned about driving and being driven in a motor vehicle.
The above injuries and disabilities were caused by the collision and it has not been established that any of them pre-existed it or that they were problems likely to emerge irrespective of the collision.
The cervical and shoulder problems and the associated symptoms are likely to persist. The psychological or emotional problems are amenable to treatment. I accept the recommendations of Dr Herriot as to the need for further treatment and I note that Professor Goldney agrees that there should be ongoing treatment and contact between the first plaintiff, her local doctor and the psychiatrist, Dr Herriot. I consider on all the psychiatric evidence, that in the course of time, the first plaintiff’s residual emotional symptoms will resolve.
I find that the combined effect of the injuries suffered by the first plaintiff have prevented her from effectively returning to work and further have impaired her capacity to work for the future.
I now turn to the assessment.
Assessment
Non-economic loss – pain and suffering
As indicated, this action is subject to the provisions of s35A of the Wrongs Act, 1936 (SA) which, though now repealed, is applicable to the assessment in this case. The plaintiff clearly qualifies for damages for non-economic loss because her “... ability to lead a normal life was significantly impaired by the injury for a period of at least seven days ...” (see s35A(1)(a)(i)). The sum prescribed by the said Act in relation to this claim is $1550 (see s35A(1)(b)(i) and (ii)). So, according to the severity of the injuries and the effect of them on the first plaintiff’s life, a numerical value of between 0 and 60 is to be chosen and applied to the prescribed sum. The first plaintiff has ongoing neck pain and attendant headaches. The right shoulder has bursitis and the pain, discomfort and restriction in shoulder movement will also be an ongoing permanent disability. Added to these injuries and their consequences is the post-traumatic stress disorder and the symptoms of anxiety, panic and depression including the nausea. I note that the vomiting has all but ceased (107). This psychiatric illness is amenable to treatment and I am satisfied that in due course it will settle.
The other injuries and indeed some of the anxiety symptoms have resolved.
It is now almost six years since the accident and the first plaintiff has suffered considerable pain and discomfort and disruption to her life. A goodly portion of it will continue into the future. The pain and discomfort has intruded itself on the plaintiff’s social and family life and has impaired her capacity to work. In particular, it has adversely effected her physical relationship with her husband and I am satisfied that it, at least in part, contributed to their separation.
In my view, an appropriate numerical value is 18. Applying that to the prescribed sum, the allowance for past and future, pain, suffering and loss of enjoyment of the amenities of life becomes $27,900.
There is no interest to be added to this allowance (see s35A(1)(k)).
Past loss of earnings
The first plaintiff is entitled to recover in damages any past net loss of earnings. This compensation is for the extent to which any impaired earning capacity has caused pecuniary loss.
Following the accident, the first plaintiff was unable to return to the antique shop until November 1997. When she started she required her husband’s help with lifting. She made mistakes. She was helping her mother who was managing the shop. I regard this work as akin to sympathetic employment and so is no real indicator that the first plaintiff had effectively recovered her earning capacity (see Gipson v Broken Hill Pty Co Ltd (1985) 120 LSJS 458 per King CJ at 465). She was terminated in February 1998 because she was not coping with the work.
So the first period of loss is from the 24^th May 1997 until about November 1997 and not including the first week amounts to a loss of $750 (ie 25 weeks x $30 per week = $750).
The family’s plan, as at the time of the accident, was to move to Adelaide, at least by the time Peter and Sarah were ready for high school (111). In particular, the first plaintiff said that whether or not the third embryo transfer was successful, she would have been in Adelaide working at the Australian Taxation Office in 1999 (110). If the transfer has been successful she said she would have remained in Crystal Brook and, not earlier than six months after the birth, nor later than 12 months, put the house on the market and moved to Adelaide to work (138, 139). As it turned out the first plaintiff and the children came to Adelaide in April 2000.
For the purpose of assessing this allowance I will assume that, but for the accident, the first plaintiff would have come to Adelaide and obtained work in 1999. The fact that she was unable to do so was because of the debilitating effect of the combination of all the injuries resulting from the accident. Accordingly, the second period of loss is the period from February 1998 to say January 1999 when by reason of the effects of her injuries the first plaintiff, languished in Crystal Brook injured and unemployed.
The evidence does not establish what employment might or might not have been available to her, and so for this second period I will allow the loss at the meagre $30 per week which she was receiving from the antique shop. Therefore, this second period of loss amounts to $1,500 (ie February 1998 to January 1999 say 50 weeks x $30 per week = $1,500).
The third period of loss is from January 1999 until the present time (ie the date of this judgment, namely 8^th April 2003). During this period of time I will assume, based on what the first plaintiff said, that but for her injuries she would have been at work in Adelaide. For the calculation of the first plaintiff’s past economic loss, there was tendered by consent:
·a schedule of pay rates for the Australian Taxation Office for the period 5/7/01 to 23/5/02 (Exhibit P13); and
·a bundle of the first plaintiff’s tax returns showing, inter alia, details of her earnings from the Australian Taxation Office up to 1990 (Exhibit P8).
There is no evidence of the rates of pay which would have been applicable to the first plaintiff’s likely classification had she been employed at the Australian Taxation Office in the period between January 1999 and July 2001. Plaintiff’s counsel put before me, as part of his submission, a schedule setting out a detailed calculation of past loss which assumed a salary of $25,000 per annum gross for 1999 and $26,000 per annum gross for the year 2000. Counsel for the defendant quite fairly suggested that economic loss calculations could proceed on the basis that the first plaintiff’s earnings capacity was within the range $20,000 to $25,000 per annum. The salaries contended for by the plaintiffs’ counsel are not an unreasonable valuation of the first plaintiff’s capacity bearing in mind that the evidence establishes that in 1990 the gross salary paid to the first plaintiff was $23,472 and then in 2001, provided she could have secured a job at the Australian Taxation Office at about her previous level, her salary would have been approximately $26,500 gross per annum. So, though not firmly established by the evidence, I would be prepared to infer that in the gap period of 1999 and 2000 the earning level would have been about that indicated in counsel, Mr O’Loughlin’s, schedule. In any event, for reasons which I will canvass later discounting is required for this allowance of past loss, so nice precision is unwarranted.
I also indicate that the calculation proceeds on the basis that the failure of the third embryo transplant was not caused by the accident and so there could be no basis for claiming for the fourth transfer and, in particular, for the lost income during the plaintiff’s confinement with the twins and the six months thereafter during which she said she would not work.
So the calculation for this third period of loss is as follows:
·1/01/99 (when it is assumed that the first plaintiff, but for the accident, would have started work at the Australian Taxation Office) to say 30/06/01 (when it is assumed the first plaintiff would have left work to have twins), being 130 weeks at $407 net per week (being average drawn from schedule Exhibit P13)     $52,910
·1/07/01 (commencement of confinement) to 31/03/02 (being six months after birth)   nil
·1/04/02 (return to work) to 8/04/03 (date of this judgment) being 53 weeks at $433 net per week (average drawn from schedule Exhibit P13)                $22,949
Total                  $75,859
So the undiscounted total for past loss of earnings is as follows:
First period of loss  $750
Second period of loss   $1,500
Third period of loss   $75,859
Total                  $78,109
It can be seen that the above sum has been calculated by making assumptions most favourable to the first plaintiff as to what would have happened but for the accident. I need to consider discounting for that reason. Further, in the normal course discounting for adverse contingencies would need to be considered once a notional valuation of loss was arrived at. Logically it need not be a two-stage process. What is necessary is that the allowance be reasonable compensation for the pecuniary losses arising from her impaired earning capacity. As to discounting for adverse contingencies the principles are clear. There is no presumption in favour of discounting. Rather, it is a question of what is dictated by the evidence (see Bresatz v Przibilla (1962) 108 CLR 541 per Windeyer J at 543; Campbell v Nangle (1985) 40 SASR 180 per King CJ at 186, 187; Fitzgerald v Goonan (unreported) [2000] SASC 332; and Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485). As indicated, in this case I have made several major assumptions in her favour, including:
·that the family, but for the accident, would have moved to Adelaide by the beginning of 1999;
·that the first plaintiff would have been working by then; and
·that the first plaintiff would have returned to a position similar to that previously held by her in the Australian Taxation Office.
Accordingly, for those reasons a discount is required to arrive at a reasonable and appropriate allowance. For this closed period of past loss, I see no justification for further discounting for the so-called usual adverse contingencies such as illness, lack of continuity of work and non-compensable disabling accident. I apply a discount of approximately 20 percent which is effectively one year of net income.
I allow the sum of $55,000 for past loss of income suffered by the first plaintiff in the above three periods.
Interest on Past Economic Loss
The first plaintiff is entitled to interest on this past component of economic loss (see s39 of the District Court Act, 1991). The period of the calculation should be from the time when the liability to compensate arose, and a discount should be applied for the slow accumulation of the loss over a period which is the period of the loss which is now almost six years. The appropriate rate of interest is 6.75 percent being the approximate average of the commercial rates prevailing since the 24^th May 1997 (see Third Schedule, Supreme Court Rules). Accordingly, the calculation (ie $55,000 x 6.75 percent per annum x 6 years ÷ 2) results in an allowance for interest of $11,137.50.
Future economic loss – future loss of earnings
I turn to the first plaintiff’s entitlement to damages for future loss of earnings.
I refer to my previous findings as to the first plaintiff’s residual disabilities. The right shoulder bursitis and the attendant pain and discomfort are permanent. In his final report dealing with the first plaintiff’s residual disabilities, the orthopaedic surgeon Mr Henningsen said:
“Ms Hardy’s overall working capacity has been significantly reduced by her right shoulder injury in that she would be unable to perform any tasks involving use of the right hand at or above shoulder height and even tasks at bench level on a continuing or repetitive basis would be beyond her endurance capabilities. Currently I believe she would be restricted to light desk type work and would require regular intervals throughout her working periods for rest.
The prognosis is that her current symptoms will remain unchanged in the longterm.”
(See Mr Henningsen’s report Exhibit P5)

The neck sprain and the attendant headaches disqualify the first plaintiff from activities which involve “prolonged or repetitive flexion of the cervical spine ...” (see Dr Molloy report Exhibit P5)
The plaintiff herself also complained and I accept it to be so that she has pain and discomfort if she is forced to sit immobile for any length of time (104). Further, she is plainly precluded from work such as waitressing in a hotel or restaurant which is work she performed some years ago. Both the neck and shoulder injuries would prevent her effectively doing that work. Further, she would be precluded from competing, in a robust way, for a job in many retail outlets where lifting and carrying merchandise would be necessary. As Dr Molloy said she should not be lifting weights more than five to 10 kilograms (312). As far as her emotional difficulties are concerned, Dr Herriot recommends a graduated return to work commencing half time (521). His prognosis, given that the first plaintiff successfully undertakes the recommended further treatment, is good (see Herriot report Exhibit P5).
In my view, a return to a position similar to the position she had previously in the Australian Taxation Office, would be within her capacities provided she could start on a part-time basis and also be free to move about and stretch from time to time. It must be recognised, however, that modest impairments can wholly operate to preclude a candidate for employment obtaining a position which would otherwise be suitable. As Stephen J, as he then was, said at 361 of his judgment in Wade v Allsopp (1976) 10 ALR 353:
“... the process of selecting one from a number of applicants for employment is, on each occasion, an all or nothing affair in which the applicant with diminished capacity may each time be wholly unsuccessful.”
Just such a problem could beset the first plaintiff. In her evidence, she drew attention to the fact that the Commonwealth Rehabilitation Service, was seeking only part-time work for her bearing in mind her disabilities (140). She said she was fit enough to attempt only part-time work (108). This flagging of disability may wholly preclude her from obtaining work she would otherwise be fit for.
No doubt because this is a case of partial incapacity, I was invited to evaluate this heading of loss by reference to a percentage loss of work capacity. This methodology involves estimating the percentage extent of a plaintiff’s diminished earning capacity, expressing it as a weekly dollar loss, and by applying actuarial tables, arrive at a capitalised sum which would represent some indication of the present value of the plaintiff’s future loss (see Murray v Dawson (1996) 24 MVR 244 per Lander J at 252, 253; Dessent v Commonwealth (1977) 13 ALR 437). Doyle CJ in Wardleworth v Green (1996) 66 SASR 421 at 426, 427 expressed some reservations about this methodology. The disapproval, if it can be put as high as that, was no doubt based on the Chief Justice’s concerns about the obvious “ups and downs” of employability which were in prospect in that case. Such permutations and combinations of future circumstances would not easily lend themselves to evaluation by reference to a flat percentage. In a sense, those reservations apply here. I bear them in mind. This method of arithmetical evaluation is but an indicator of the appropriate allowance.
In my view, the consequences of the collision have impaired the first plaintiff’s earning capacity to the extent of 25 percent. Accepting that the net dollar value of her pre-accident earning capacity is approximately $433, the net weekly loss is $108.20. In this case the weekly loss would be higher in the earlier years when she is searching for work and perhaps working part-time and lower in the later years when she has settled. The Australian Life Tables 1997–1991 published at p695 of Luntz, Assessment of Damages 4^th Ed shows that the average of the annuities producing $1 a week for a female aged 42 years using the prescribed discount rate of 5 percent (see s35A(1)(e) and (6)), the annuities to cease respectively upon the female attaining the ages of 60, 65 and at death is 740.6. So applying $108.20 to the annuity value results in a capitalised sum of $80,133. Some discounting of that capitalised figure is necessary to account for the fact that I have used, from Exhibit P13, a high net weekly salary. Further, I have averaged the said three annuities which is necessarily an assumption that the first plaintiff would have worked beyond the age of 60. As for the “usual” adverse contingencies, I see no basis for concluding that they would necessarily outweigh the advantageous. The first plaintiff was, prior to the accident, a relatively healthy resourceful woman who has worked most of her life and when necessary studied to advance herself.
The first plaintiff is a 42 year old female with permanent musculo-skeletal problems focussed on her neck and back, together with some psychological problems which in time will abate. The neck and shoulder injuries are permanent and will continue to impair her working capacity in at least two senses. First, for the clerical work for which she has experience and training she will need special consideration such as the ability to move about. Secondly, there are a range of employments from which she is now precluded by reason of her injuries and for which she had some experience, such as waitressing work and working in some retail industry jobs where lifting and carrying is necessary. She will be competing with fitter candidates. Because of her disabilities, she may take some time to break into the employment market. I take into account also that she has always assumed the role of the major breadwinner in the family and continuing to be so was her intention prior to this accident.
In all, and taking into account the outer parameters set by the percentage or arithmetical evaluation, I consider a reasonable allowance for present value of the first plaintiff’s future loss of earning capacity is $70,000.
Interest
This heading of loss attracts no interest (see s34A(1)(b)).
Future medical
The first plaintiff will need to undergo the future treatment prescribed by Dr Herriot. He advocates a structured treatment program to address her ongoing anxiety problems and her fear of driving. He suggests 12 x 30 minute visits at a total cost of $1,560. Indeed, Professor Goldney recommends “... continuing support from her local doctor and intermittent contact with the psychiatrist ...”. Professor Goldney also envisages that the first plaintiff will be able to forsake dependence on anti-depressant medication in about two years time (see Exhibit D4). Mr Henningsen anticipates that the first plaintiff will need to continue with intermittent symptomatic treatment. The first plaintiff’s current local general medical practitioner, Dr Burns, says in connection with ongoing medical treatment as follows:
“I suspect that in the long term Susan will need to maintain her fitness and undertake a muscle-strengthening program under the initial care of physiotherapist. I would believe that she requires formal sessions in a supervised gymnasium to set up a program. A years membership in an appropriate gym would probably cost $750-$1000. This fitness regime would need to be undertaken thereafter at her own pace and discretion.”
(see Exhibit P5)
So in all the circumstances, I allow the sum of $4,500 for the present value of the cost of future medical care and included in that sum is the cost of any ongoing medication.
Gratuitous services – past and future
In the first year or so following the collision the second plaintiff, who previously shared the household work with the first plaintiff, wholly took over much of the household work including the cooking. The need for intense help lessened as time passed. By 1999 or early 2000, the first plaintiff had resumed some cooking but still needed help because of her shoulder injury and, in particular, her inability to apply power with her right hand (637, 638). The first plaintiff’s mother, Mrs Clifford, also assisted in the house.
I allow the sum of $2,500 including interest for this heading of loss.
Special damages
Special damages were agreed at $3,543.61 of which only $385.55 was paid by the plaintiffs (see Schedule, Exhibit P12). I allow the special damages at that sum, namely $3,543 and fix $50 for interest on that component paid for by the plaintiff. Accordingly, the full allowance for special damages is $3,593 including interest. I note that much of that will have to be repaid to Medicare.
The second plaintiff’s claim for loss of and impairment of consortium
The second plaintiff is entitled, at common law, to recover damages for loss or impaired comfort, society and fellowship provided by the other spouse which is lost or impaired by reason of the negligence of the defendant (see Toohey v Hollier (1955) 92 CLR 618). The compensation is confined to “material or temporal loss capable of estimation in money” (see Toohey (supra) at 628). There is to be no recovery for grief, suffering, distress or depression consequent upon the injury to the other spouse (see Andrewartha v Andrewartha [No.1] (1987) 44 SASR 1). Included in the notion of loss or impairment of society, companionship and comfort, is the deprivation of and/or diminution in the quality of sexual relations (see Kealley v Jones (1979) 1 NSWLR 723 per Samuels JA at 750-1).
I refer to and confirm my findings about the impact of this accident on the physical relationship between the plaintiffs. Prior to the accident the plaintiffs had a full physical relationship. They enjoyed one another’s company and had a busy social life. They enjoyed sexual intercourse several times a week (655). The accident changed all that. In the first year there was no physical relationship at all, and in 1998 there was not much improvement. That year was almost wholly absorbed with the first plaintiff addressing her medical difficulties (648, 649). Their social life stopped and the companionship and physical relationship continued to be seriously impaired. In May of 2000 they separated. The second plaintiff said that this was brought about by an accumulation of their difficulties. He said in particular “... we were just falling apart at the seams and we needed a break, so we just separated ...” (643). By Easter of 2001 the plaintiffs had got back together again. Though there were tensions in their lives unrelated to the accident, I accept that the substance of these marital difficulties stemmed from the accident the subject of this action.
In all the circumstances I allow the sum of $8,000 under this heading. Of that amount I allocate or apportion $7,000 to the past and the balance to the future.
Interest on allowance for past loss of consortium
Interest will be allowed on the past component of that loss and since it is a temporal loss interest should be allowed at the commercial rate. The calculation, $7,000 x 6.75 percent x 6 years ÷ 2) results in an allowance for interest of $1,417.50.
Conclusion - summary
Liability
Responsibility for the collision is to be apportioned on the basis of 80 % - 20 % in favour of the plaintiffs. Accordingly, the plaintiffs are to receive 80 % of their damages.
Quantum
First Plaintiff’s Damages
Non-economic loss
Pain suffering (prescribed sum $1,550 numerical value 18)         27,900.00
Economic loss
Past loss of earnings  55,000.00
Interest  11,137.50
Future loss of earnings  70,000.00
Special Damages
Past  3,543.00
                  Interest  50.00
Future medical expenses  4,500.00
Gratuitous services
         Past and future including interest  2,500.00
$174,630.50
Less 20% for contributory negligence  $34,926.10
Total           $139,704.40
  _____________
Second Plaintiff’s Damages
Past loss of consortium  7,000.00
Interest  1,417.50
         Future loss of wife’s consotrium  1,000.00
$9,417.50
Less 20% for contributory negligence  $1,883.50
Total                $7,534.00
  _____________
Accordingly, there will be judgment for the first plaintiff against the defendant in the sum of $139,704.40, which sum includes interest.
Further, there will be judgment for the second plaintiff against the defendant in the sum of $7,534.00, which sum includes interest.
I will hear the parties as to costs.

[2003] SADC 51

8 April 2003