Harkins v Rexco & Adelaide Brighton Cement No. DCCIV-93-1234 Judgment No. D3582

[1997] SADC 3582

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Reasons of His Honour Judge Lunn

Hearing

04/03/97 to 07/03/97, 10/03/97 to 14/03/97, 17/03/97 to 20/03/97, 27/06/97.

Catchwords

DAMAGESPersonal injury - shoulder - lateral rotator cuff impingement in right shoulder - 39 year old, male, labourer - similar injury in left shoulder resulting from favouring right shoulder - depression and psychiatric symptoms - likely to have developed similar conditions in 5-10 years in any event - economic loss $155,000 past, $110,000 future, non economic loss $45,000 past, $35,000 future, special damages $183,282 past, $30,000 future, gratuitous services $700 - total assessment before reduction $567,582.EVIDENCE Legal professional privilege - statement taken by investigator from WorkCover from witness to accident - sole purpose to use in legal proceedings - held privileged - no waiver in circumstances by disclosure of statement by WorkCover to plaintiff.EVIDENCE Statement of witness who was in Queensland admitted under s34c of the Evidence Act on grounds of undue delay and expense in bringing the witness to Adelaide.NEGLIGENCE Industrial accident - plaintiff required by operator of cement plant to lower numerous 25kg buckets of cement dust from a roof and to empty them into a waste bin at or approaching shoulder height - mechanical aids available but not supplied - injury to right shoulder - operator negligent and no contributory negligence - subsequent similar injury to left shoulder as a result of favouring right shoulder - consequence of previous breach of duty - contributory negligence of 20% for damage to left shoulder for plaintiff failing to report previously injury properly. Pyne v Wilkenfeld 26 SASR 441, applied. PRACTICE AND PROCEDURE Subpoena - service interstate under s30Service and Execution of Process Act 1992 - service on day before trial held ineffectual as no condition fixed by Court for minimum time for service before trial and leave given held to be meaningless.

Representation

Plaintiff WALTER HARKINS:
Counsel: MR A POSSINGHAM - Solicitors: MOLONEY &; PARTNERS

Defendant ADELAIDE BRIGHTON CEMENT LTD:
Counsel: MR O DOWNS - Solicitors: LAWSON DOWNS

DCCIV-93-1234

Judgment No. D3582

27 June 1997

(Civil)

HARKINS v REXCO PTY LTD & ADELAIDE BRIGHTON CEMENT LTD

Civil

Judge Lunn

Introduction

In 1993 the plaintiff sued Rexco Pty Ltd ("Rexco") and Adelaide Brighton Cement Ltd ("ABC") for damages for injuries which he allegedly suffered on 17 and 30 October 1990 while employed by Rexco and working at the premises of ABC. On 20 December 1994 the plaintiff discontinued his action against Rexco. However, prior to that date ABC had issued contribution proceedings against Rexco, which are still on foot, and which are being treated as third party proceedings in the action.I have not seen the contribution notice.Prior to the trial before me a Master had ordered that the issues between the plaintiff and ABC be determined before the issues between the defendants.Rexco took no part in the trial before me, and thus it is not bound by my findings.I have ignored the potentially difficult questions of whether Rexco owed any concurrent or additional duties to the plaintiff and have confined myself to the issues of what duty ABC owed to the plaintiff, whether such duty was breached and whether there was any contributory negligence.

Background on Liability

In 1990, and since, ABC has operated a dry mix plant at Birkenhead where it mixes and bags various dry cement products.The plant is housed in a four storey building which is about 10 metres long, 15 metres deep and 18 metres high.On the first floor is a mixing machine which receives components from silos above it and which drops the mixed product in bulk to a bagging machine on the ground floor.The bags then run on a mechanical conveyor to another part of the building where they are off-loaded onto pallets.The various powders which make up the dry mix are moved around the factory in metal pipes under pressure from compressed air.On the first floor a small part of the pipes are rubber so that they can be moved between different silos.The first floor area in the vicinity of the rubber pipes does not have a complete floor and in parts is open to the ground floor below.The whole operation is dirty and dusty.Cement dust regularly settles on all of the horizontal surfaces throughout the plant.

On one outer wall of the plant on the ground floor is a besser block structure 6.5 metres long, 3.2 metres deep and 3.1 metres high which is known as "the switch room".Immediately above it access to the first floor is open so that any dust generated from the first floor settles on its metal roof.About two metres from one corner of the switch room a metal industrial waste bin is kept which is about 4.3 metres long and about 2 metres wide.Rubbish and sweepings from the plant floor are dumped into this bin.When it becomes full it is regularly replaced with a different empty similar, but not necessarily identical, bin.

In 1990 ABC had six permanent employees to run the dry mix plant.There were five persons required for the operation of the plant at any one time.In October 1990 Christopher Trestrail was the production supervisor of ABC for the dry mix plant.He worked in an adjoining office and was not regularly in the plant itself.Rod Fergusson was the foreman of the plant for ABC.He has since died. George Manvrojanis was the leading hand in the plant.Kym Watson and Billy Jackson were other employees of ABC who worked in the dry mix plant. When greater than usual production was required from the dry mix plant two shifts were worked each day, being a morning shift and an afternoon shift.On days on which two shifts were worked Rod Fergusson was the foreman on the morning shift and George Manvrojanis became an acting foreman on the afternoon shift.Kym Watson became the de facto leading hand on the morning shift.The regular staff was split between the two shifts and extra workers were brought in to make up the numbers for both shifts.

Rexco is a labour hire firm which supplied workers to ABC when it required additional assistance in the dry mix plant such as when two shifts were being worked there.These Rexco workers were laid off as soon as there was no work available for them to do.A Rexco supervisor would merely introduce a Rexco worker to an ABC worker in the dry mix plant and then leave.ABC workers told the Rexco workers what they had to do, and in some instances gave them instruction in how to do it.At the end of the week the ABC foreman signed the time slips for the Rexco workers and they were paid by Rexco.It was not suggested that there was any contract of service between ABC and any of the Rexco workers.

The plaintiff commenced employment with Rexco in March 1990.He was sent by Rexco to various workplaces for which Rexco had contracted to supply additional labour.He worked in such places as a labourer or trades assistant and for whatever periods for which his labour was required.Prior to October 1990 he had worked casually for Rexco at the ABC dry mix plant for some days.

The Witnesses

None of the witnesses on liability were able to give a wholly reliable account of what had occurred over 6.5 years previously.That is not surprising.At the time the relevant events were not a cause of any particular concern and it was only a year or more later, at the earliest, that anyone, including the plaintiff, was first asked to remember what had actually occurred.

The most reliable evidence comes from contemporaneous documents.I am not generally prepared to accept the present recollection of witnesses where their testimony conflicts with what is in those documents.I now set out a number of findings based on those documents and on undisputed facts.I reject the evidence of the witnesses where what they said was to the contrary.

On 1, 2 and 10 October 1990 Rexco workers had been employed to clean up the plant, which meant that it had been in a filthy condition before that, and it would have been in a reasonably clean state by the end of the day shift on 10 October.On each of 9, 10 and 11 October two shifts had been worked where George Manvrojanis had been present on the afternoon shift but not on the morning shift.Early in the morning shift on 11 October one of the rubber hoses on the first floor had broken loose depositing about 3 tonnes of brick red coloured cement dust onto the first and ground floors.Two Rexco employees, who were the plaintiff and Gregory Main, were brought in during the morning shift on 11 October to clean up this spill of cement dust.They continued to be so employed on the morning shift on 12 October.They used 20 litre metal buckets, which were available in the plant, to carry the dust they were cleaning up to the waste bin.If completely filled with cement powder, such a bucket weighed 26.82 kilograms.As it is unlikely that such buckets were completely filled, and, if they had been filled, there would have been some spillage or settlement, the average weight of a bucket of such cement dust would have been about 25 kilograms.On 26 October 1990 the plaintiff saw Dr Andrew Hughes complaining of a right shoulder injury.On 30 October 1990 the plaintiff was working on the bagging machine.He ceased work at 11.00 am when he had been scheduled to work until 6.00 pm and later on that day he again saw Dr Hughes complaining of a left shoulder injury.If the plaintiff had suffered any injury in his work at the dry mix plant, the foreman or leading hand should have recorded it in an injury report book, but the book contains no relevant entry.The plaintiff had worked in the dry mix plant on every normal working day between 11 and 30 October 1990 and on occasions up to 9.2 hours on such days.

I accept some statements made by ABC employee in their evidence which were against the interests of ABC.While other parts of the evidence of those witnesses may not be reliable, such statements against the interest of ABC appear to be inherently probable.Watson said that he had seen two Rexco workers cleaning cement dust off the roof of the switch room for five or six hours by lowering the dust collected from the roof in a bucket using a rope attached to its handle.George Manvrojanis admitted that at some time, which was probably on or close to 30 October, the plaintiff had said to him words to the effect, "A couple of weeks ago I hurt my shoulder".I also accept the evidence of Mr Trestrail that in and after 1990 there had only been two significant spills of cement dust in the plant from pipes coming uncoupled or bursting which were the spill already mentioned on 11 October and another in 1991.

I did not find the evidence of the plaintiff's expert Mr Toshach to be generally persuasive and I have been able to resolve the issues without resort to it.

Against the background of these matters which I do accept I now assess the other evidence of the various witnesses on liability.

The plaintiff cannot be accepted as a wholly reliable witness, and particularly on matters of detail.He was not well educated or articulate and he had difficulty in expressing himself in precise rather than generalised terms.He has had a long time to dwell on what had happened to him and to brood upon his many misfortunes.Undoubtedly there has been a good deal of exaggeration and reconstruction in what he said in his evidence.There was no medical evidence to suggest that his subsequent psychiatric medication had affected his memory, but his underlying emotional disturbance may have affected his cognitive abilities.He was vague and hazy on a number of matters.He admitted that he was not necessarily completely correct in his recollections, but his evidence was much less reliable than he was prepared to admit.He thought that the buckets of cement powder weighed 40 kilograms each when they were in truth just over half that.He was clearly incorrect in alleging that George Manvrojanis had directed him to clean up the cement spill because George was not on the morning shift on 11 October when he started work.Up until trial he had maintained that his right shoulder injury occurred on 17 October but other evidence makes it clear that it was either on 11 or 12 October.He was wrong in his evidence about other alleged burst pipes and cement spills. His various recountings of what occurred to doctors were imprecise and generalised, and in a number of instances inconsistent with his evidence.This shows that he does not have a good and consistent memory about the details of what occurred.

Gregory Main was a more impressive witness than the plaintiff, but he also was not entirely reliable in everything which he said.He also said that it was George Manvrojanis who directed him to clean up the spill on 11 October, but that could not be correct.It is strange that he could not recollect that it was the plaintiff with whom he was working with at the time, although his frankness in admitting that he could not identify the person confirms that he was an honest witness.He was wrong in his evidence about the dimensions of the switch room roof and in saying that its roof was plastic.He may well have been confused about the structure on which he and the plaintiff were working. He could have been referring to a compressor room on the ground floor of the plant which did not have any appreciable amount of cement dust on it. Nevertheless overall his credibility is much greater than that of the plaintiff.

Mr Trestrail was the most impressive witness for the defendant, but I find him to have been wrong in his recollections about extent of the spill on 11 October and about the height of the waste bins.

I was not impressed with the evidence of George Manvrojanis.He was defensive and evasive in what he said.He admitted speaking to Trestrail and Watson about relevant events and some of what he said may have been coloured by that.

I was not impressed with the evidence of Watson and Jackson.Much of what they said was a mutual recollection.Their story about Jackson having shut off the pumping mechanism shortly after the spill commenced on 11 October is inconsistent with what I find to have been the volume of material which escaped.I prefer Trestrail, supported as it is by the contemporaneous note of MacPherson, that the spill on 11 October came from a broken coupling of the rubber pipe and reject Jackson's evidence that it was from a split in the pipe. Apart from some spontaneous admissions contrary to the interests of ABC, which I mention elsewhere, I do not consider their evidence to be reliable.

Finding on Liability Issues

Based primarily on the evidence of Main and Trestrail, the other matters mentioned above about which I was satisfied and some parts of the evidence of other witnesses, I find on the balance of probabilities that the following occurred.Early in the morning shift on 11 October 1990 a substantial quantity of cement powder escaped from a broken coupling on a rubber pipe.The amount which so escaped was in the vicinity of 3 tonnes.That is what was stated by MacPherson, who was reputed to be a meticulous bookkeeper, in the productivity sheets for the day.I reject the plaintiff's evidence that it was considerably more and the evidence of ABC's witnesses that it was considerably less.The plaintiff and Main were retained by ABC from Rexco on 11 October primarily for the purpose of cleaning up this substantial cement spill.While I reject their evidence that it was George Manvrojanis who gave them instructions about what to do, I find that some employee of ABC on that morning did tell them to clean up the spill and gave them a shovel, a broom, one or two metal 20 litre buckets and a rope to carry out the task.This person, who may well have been Watson as the acting leading hand at the time, told them to clean the cement dust off the roof of the switch room by shovelling it into the buckets and then lowering them down to the ground by use of the rope.The rope was used elsewhere in the plant for the purpose of cleaning out silos.There is no likelihood that either the plaintiff or Main otherwise knew of its existence or whereabouts. It is unlikely that they devised for themselves the procedure of lowering the buckets from the roof of the switch room by use of the rope.The plaintiff had previously been involved in general cleaning up duties in the plant and was well aware that the cement dust collected was to be tipped from the buckets into the waste bin.That was so obvious that it went without saying.The job of cleaning up the cement spill from the first and ground floors would have taken two men at least most of the day.I accept the evidence of Main that they were expected to work briskly and this is consistent with other evidence that the staff were under enormous pressure when the plant was working double shifts.Nothing was said to the plaintiff or Main about not filling the 20 litre buckets completely and during the exercise they filled the buckets to within a couple of inches of their tops.This accorded with the implicit expectation of ABC that the work would be done as expeditiously as possible by that method.As a matter of arithmetic the 20 litre buckets would need to have been filled with 25 kilos of cement powder on about 120 occasions in order to move 3 tonnes of it.

It is unclear how much of the 3 tonnes spill finished up on the roof of the switch room, but it would have been a substantial amount.The plaintiff and Main took it in turns in the task of getting up on the roof, filling the buckets, lowering them by use of the rope to the other of them who was on the ground with that person then carrying the bucket several metres to the waste bin and tipping it into the bin.For some of the time at least they used two buckets with the man on the roof filling the next bucket while the other was taking a full bucket to the bin.It was hard and heavy work.As well as cleaning the roof of the switch room it also included sweeping up the accumulated cement dust from other areas on the ground and first floors and the stairway and putting that into the 20 litre buckets and carrying them to the waste bin.The job took most of the day shift on 11 October and was probably completed by the same two men at some time on the day shift on 12 October.

A crucial issue is the height to which the plaintiff was required to lift the buckets of cement dust in order to tip them into the waste bin.The evidence on this was garbled and unsatisfactory.It seems likely that the height and configuration of the various waste bins over the period of time was not always the same.Some had an even height on all four sides.Others were higher at the end nearest the switch room and had tapering sides adjacent to the high end and were significantly lower at the other end.Where a waste bin had a high end it was at about shoulder height for the plaintiff.On many occasions, if not always, the plaintiff emptied the buckets by pivoting them on their side on the top edge of the bin and then bringing up their bottom ends so that their contents emptied into the bin.However that was not always possible on parts of the bin where it was already full.If the only empty spaces in the bin were adjacent to the high side, the exercise would have needed to be performed at the high end.The plaintiff said that he off-loaded his bucket at the lowest point on the edge of the bin, but I am not satisfied that he was entirely correct in that generalisation.After a consideration of all the evidence on the topic I prefer that of Main who said that he had to lift the buckets equal to his shoulder height in order to empty their contents into the bin.Although no evidence was given about it, from my observations of them in the witness box the plaintiff and Main appeared to be about the same height.Watson said the bins were up to his nose and he was 5 feet 4.5 inches tall.Trestrail was wrong in saying all the bins were only 1.2 to 1.5 metres high.Accordingly, I find that in emptying the buckets of cement dust into the bin on 11, and possibly 12, October the plaintiff was required on numerous occasions to lift a bucket of about 25 kilos in weight to about his shoulder height.

At some point towards the end of the job, which may have been late on the day shift on 11 October or on the morning of 12 October, the plaintiff, while emptying a bucket of cement dust into the bin, experienced for the first time a sharp pain in his right shoulder and thereafter had pain in that shoulder. Although some of the medical witnesses recorded complaints by the plaintiff of an apparent gradual onset of pain in his right shoulder, this is probably attributable to the plaintiff's lack of precise articulation.From the ultimate diagnosis of Mr Maguire of an impingement condition it would seem likely that the onset of symptoms was an experience of sharp pain.Although the plaintiff had pleaded that this incident occurred on about 17 October, the trial was conducted on the basis that it occurred, if at all, on about 11 or 12 October.

After the plaintiff first experienced this right shoulder pain he continued to work normally at ABC as a trades assistant and a labourer.The pain symptoms in his right shoulder persisted, but it was not until Friday 26 October that he first went to see Dr Hughes.He did not certify him unfit for work and he returned to work on the following Monday.I reject the plaintiff's evidence of the specific complaints about this injury to his right shoulder which he said he made to various employees of ABC.As he said, he was frightened that he would lose his job if he told the truth about it.He worked on without seeking time off or lighter duties and put up with some pain in the shoulder.However, from the admission made by George Manvrojanis, as mentioned above, the plaintiff did make some informal mention of his shoulder problem to him before the further incident on 30 October.It is also likely that there had been some casual reference by the plaintiff to having some minor shoulder problem during conversations with various lower level ABC employees in the lunch room.

Shortly before 11.00 am on 30 October the plaintiff was working on the bagging machine in the Drymix plant.When a new batch came through from the mixing machine it was necessary to weigh the first few bags which were filled to ensure that they were of the correct weight.There was a set of scales alongside the conveyor belt.The practice was for a few bags to be taken off the conveyor, placed onto the scales for weighing and then lifted from the scales onto a nearby pallet.In the course of this procedure the plaintiff lifted a bag from the scales onto the nearby pallet and in doing so suffered pain in his left shoulder.Because of the problems which he was then having with his right shoulder he attempted to take most of the weight of the bags on his left side and thus placed undue strain on his left shoulder.The bags which the plaintiff was lifting weighed 40 kilos.Main spoke of 20 kilo bags but the preponderance of the evidence is that they were 40 kilo bags.The plaintiff thereupon reported his left shoulder problem to someone from ABC and left early at 11.00 am.It is improbable that he would have left at this time if he had not reported his left shoulder injury to someone in authority at ABC. It is significant that no entry appears in the Accident Report Book of ABC concerning this injury on 30 October.This shows that the rigorous accident reporting procedures asserted by ABC were not as well adhered to as it claimed. The plaintiff saw Dr Hughes again on that evening about his left shoulder condition.He was given time off work and he never again worked at ABC.

Liability for the right shoulder injury

ABC did not dispute that it owed a duty of care to the plaintiff, but there was considerable debate about the extent of that duty and whether it had been breached.The duties of ABC to the plaintiff were quite independent of those of Rexco and I need not go into the question of Rexco's duties.The issue is what a reasonable person in the position of ABC should have foreseen was the risk of harm to the plaintiff in the circumstances and what it could reasonably have done to have obviated that risk.On the facts which I have found above it is sufficient to have resort to four factors in assessing the duty of care:

ù In view of the amount of cement dust on the switch room roof which needed to be moved it was preferable to have used mechanical devices to have lifted it down from the roof and deposited it into the waste bin.There were available at the Drymix plant a front end loader, which had a scoop which could have been elevated to the level of the roof of the switch room and into which the cement dust could have been shovelled from the roof and a small waste bin which could have been put onto the tines of a forklift and lifted up to the level of the roof into which the dust could have been shovelled.Likewise the front end loader could have been used to pick up piles of cement dust which had been swept into heaps on the floor and carried by it to the waste bin and dumped there.It does not appear that the plaintiff knew of the availability of these mechanical facilities, but the foreman and the leading hand of ABC certainly should have.If these mechanical devices had been used, it is most unlikely that the plaintiff would have suffered any injury in his right shoulder.

ù While the use of the use of the bucket and the rope may have been innocuous if only a small amount of cement dust had to be moved, the method adopted placed considerable strain upon the shoulders and backs of the plaintiff and Main because of the degree of physical exertion required.The extended duration over which such repetitive physical activities had to be carried on to move the significant amount of dust constituted a substantial risk for the workers.

ù The necessity to raise the buckets of cement dust to shoulder height on many occasions to empty them into the waste bin created an obvious risk which should have been well known to the allegedly safety conscious ABC.There was copious medical evidence that lifting such weights at or above shoulder height was potentially dangerous.

ù Even if the scheme for the use of the bucket and the rope had been devised by the plaintiff himself, Watson as the defacto leading hand of ABC, was aware of what was being done and should have intervened to point out the danger and to inform the plaintiff of the available mechanical resources.

ABC owed the plaintiff in the circumstances a duty of care to ensure that there was no undue risk of injury to him by the use of the bucket and rope and in having to empty the buckets into the waste bin which it provided.For the reasons already given ABC breached that duty in that the use of the bucket and rope and the height of the waste bin in relation to the magnitude of the task to be carried out placed an unreasonable strain on the shoulders of the plaintiff.Thus it was negligent.

The medical evidence, which will be mentioned later, showed that the plaintiff had an unusual condition in his shoulders which made him peculiarly susceptible to the type of injury which he suffered.However, I have not taken that into account in my findings on liability.The duty and its breach are to be assessed on what the reasonable person in the position of ABC knew, or should have known, about the plaintiff, which was his height, his well developed shoulders and that he was employed as a labourer.However, once the duty was breached it does not matter in law that the injury resulted because of a peculiar susceptibility of the plaintiff to such an injury:Wilson v Peisley
(1975) 7 ALR 571.

I do not find the plaintiff to have been guilty of any contributory negligence in relation to his right shoulder inquiry.He was doing the job for ABC which he had been told to do in the manner in which he had been told to do it by ABC. It was not incumbent upon him to have complained that it should have been done in some different manner because of any risk to him, and particularly as he was not aware of the mechanical aids which ABC could have readily provided.As ABC required the job to be done as quickly as practicable I reject that the plaintiff was negligent in virtually filling the buckets.As ABC had provided buckets of 20 litre capacity for the job it was reasonable for the plaintiff to think that ABC expected him to fill them to close to their capacity.If there was a low point on the waste bin into which the buckets could have been more easily emptied by the plaintiff, I do not find him to have been negligent in having emptied them at some higher point of the bin.In view of the weight of the buckets it was not unreasonable to empty them at the closest point on the bin to make the distance over which the buckets had to be carried as short as possible.In any event on some occasions the waste bin was too full at its lower parts for the plaintiff to empty a bucket at that point.

Liability for the left shoulder injury

In his final address the plaintiff's counsel's primary submission was that the injury to the left shoulder was a natural consequence of the prior injury to the right shoulder and thus ABC was liable for it as part of the damage flowing from its breach of duty on about 11 October.While that was not the way in which the plaintiff's case had been pleaded or opened upon, it was permissible for the plaintiff to pursue this contention as it was not objected to and it came within the facts pleaded in the statement of claim.As Mr Maguire, the orthopaedic surgeon, said, a significant number of people who have the problem which the plaintiff had with his right shoulder also experience a similar problem with their left shoulder because with the disability in the right shoulder they favour that shoulder at the expense of the left shoulder.I find that because of continuing problems with his right shoulder on 30 October the plaintiff lifted a 40 kilo bag from the scales to the pallet in a manner which put undue strain on his left shoulder and thereby injured it and that this would not have occurred if he had not suffered the injury to his right shoulder on about 11 October 1990.Accordingly, ABC is liable for the injury to the left shoulder and its consequences:Wardleworth v Green (1996) 184 LSJS 438; Pyne v Wilkenfeld (1981) 26 SASR 441.In Pyne v Wilkenfeld (above) Zelling J recognised that there could be a reduction for contributing negligence of the damage from the second incident independently of any contributory negligence relating to the damage in the original incident.I have not been able to find any other authority on the point, but such an approach is consistent with s27a of the Wrongs Act.I deal with the issue of contributory negligence for the left shoulder later.

In case I am found to be wrong in this conclusion about the liability of ABC for the left shoulder injury, and because of the issue of contributory negligence, I will also deal with the separate cause of action pleaded concerning that injury.As previously stated the plaintiff had given some informal notice to a person in authority in ABC that he had suffered some right shoulder injury, but he had made light of it and had not told them of the full extent of it for fear of losing his job.Nevertheless, once ABC had been put on notice that he had some problem with his right shoulder it owed the plaintiff a duty not to require him to carry out work which might reasonably be foreseen to have exposed him to injury to other parts of his body because he might be protecting his sore right shoulder.Although Dr Hughes had not certified him unfit for work, there was such a duty in moving 40 kilo bags as they were very heavy and undoubtedly required the worker to be fully fit.ABC, having been put on notice that there was some continuing problem with the plaintiff's right shoulder, should have monitored the situation and specifically inquired about the condition of the right shoulder.If directly asked the plaintiff would probably have told the truth about it, and if so, he should not have been required to lift 40 kilo bags because of obvious danger to his left shoulder.There was some conflicting evidence from ABC employees about whether one worker should ever have lifted a 40 kilo bag on his own, although in practice it was not an unusual occurrence in the Drymix plant.ABC was well aware of the potential dangers in handling weights as heavy as 40 kilos, and once it knew, or should have known, that there was a potential difficulty it should have ensured that the plaintiff did not do it.Thus I would find ABC to have been negligent in allowing the plaintiff to handle the 40 kilo bag which gave rise to his left shoulder injury.

In so far as the claim turns on the cause of action pleaded in respect of the 30 October incident, I would find that the plaintiff was guilty of contributory negligence in the circumstances.He should have made a full and frank report to ABC of the difficulty which he was experiencing with his right shoulder.He claims that he did, and as a consequence he was put on to light duties on the bagging machine, but I reject that.I accept Trestrail's evidence that work on the bagging machine was not classed as light duties.The plaintiff had previously not disclosed to Rexco his history of compensation claims because he knew that they would prejudice his employment.He was a keen worker and he wanted to maintain his employment.An interesting question arises as to whether he had fully discharged his duty by reporting the right shoulder injury to Rexco.Although in the course of addresses both counsel agreed that the plaintiff had not reported the right shoulder injury to Rexco before he had suffered the left shoulder injury, the plaintiff's evidence in chief was as follows (at p112):-

"Q ... do you think there were two certificates, one relating to your attendance about your right shoulder.

A Yes.

Q Before you injured your left shoulder.

A Yes, I believe I had two certificates.

Q And you think they were both from Dr Hughes.

A They were both from Dr Hughes.

Q Did you hand them in to somebody.

A I think I gave the first one to Peter Hodgeson and then when I injured my left shoulder I got a certificate that night and then I took it back and gave it to Peter Hodgeson as well.

Q So you think you gave each of the certificates to Peter Hodgeson on two different occasions.

A Yes."

The detail in which the plaintiff had reported his right shoulder injury to Rexco, or what he had told them about it, was not explored, but I infer that he was no more frank with Rexco than he was with ABC.While he might reasonably have expected Rexco to have ensured that he was only given appropriate duties at ABC so that he was not at risk of further injury because of the problems with his right shoulder, on the evidence before me I do not consider that he was thereby absolved reasonably from also informing ABC of the true situation about his right shoulder.Rexco did not apparently take any action to ensure that the plaintiff was only given suitably modified duties by ABC.Whether Rexco was in breach of its duty in this is not my concern.On the evidence, if ABC had believed that the plaintiff was not fully fit for the duties which it wished him to carry out, it is likely that it would have rejected him, told Rexco to send it another worker who was fully fit and the plaintiff would then have been unemployed.The vague reference by the plaintiff to George Manvrojanis about some shoulder problem, as mentioned above, was not a full and frank disclosure of the true situation about his right shoulder.If he had made a reasonably full disclosure of his continuing problems to ABC, it may well have led ABC to take steps which would have prevented the left shoulder injury.If judgment was to be given on the second cause of action I would have apportioned liability as to 80% against ABC and 20% against the plaintiff. Likewise on the first cause of action I find under s27a of the Wrongs Act that the plaintiff's damage attributable to the left shoulder injury alone is to be reduced by 20% for his contributory negligence in relation to that damage.

Tender of a statement under Section 34c of the Evidence Act

The plaintiff sought to tender a written statement purportedly signed by Dean Adams under s34c of the Evidence Act. Adams had been a labour controller employed by Rexco who had had dealings with the plaintiff and ABC prior to October 1990, but not during October 1990. At the time of trial he was living and working in Queensland.

Counsel for ABC submitted that it had not been proved that the statement sought to be tendered was in fact signed by the Dean Adams who had been employed by Rexco. While there is no direct evidence about the identity of the person whose signature appears on the statement there is a strong circumstantial inference from the course of dealings between the plaintiff's solicitors and the person who signed the statement which establishes on the balance of probabilities that the person who signed it was the Dean Adams who was employed by Rexco and who had dealings with the plaintiff. Resort to such circumstantial evidence is justified by s34c(5) where it states "the Court may draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other circumstances" and it was apparently used similarly by Bray CJ in White v Venus [1968] SASR 83. Accordingly, I find it sufficiently proved that the document sought to be tendered was signed by the Dean Adams who would otherwise have been called as a witness at the trial.

There was a preliminary point about whether Adams had been effectively served with a subpoena to attend at the trial. On 4 February 1997 the plaintiff's solicitors received a fax from Adams saying that he would not voluntarily attend in Adelaide for the trial on 4 March 1997. On 19 February the plaintiff's solicitors issued an application seeking, inter alia, an order:

"That leave be granted to serve a subpoena to give evidence upon Dean .... Adams outside the State of South Australia and in the State of Queensland returnable for 3.30 pm on Tuesday the 4th day of March 1997."

On 25 February a Master made an order in terms of that application, but he was not requested to make any further order, and did not make any other order, except as to costs. After some difficulties a process server served Adams with the subpoena in Queensland on 3 March 1997, ie the day before it was returnable in Adelaide. He did not attend in answer to the subpoena. He sent a message to the Court saying that his work commitments prevented him from coming.

For the subpoena to have been validly served upon Adams it was necessary that Section 30 of the Commonwealth Service and Execution of Process Act 1992 was satisfied. That section provides:

"(1) Service of a subpoena is effective only if the period between service and the day on which the person to whom the subpoena is addressed is required to comply with the subpoena is not less than:

(a) 14 days; or

(b) such shorter period as the Court of issue or the authority of issue, on application, allows.

(2)The Court or authority may allow a shorter period only if it is satisfied that:

(a) the giving of the evidence likely to be given by the person to whom the subpoena is addressed .... is necessary in the interests of justice; and

(b) there will be enough time for the person:

(i) to comply with the subpoena without hardship or serious inconvenience; and

(ii) to make an application under Section 33.

(3)In granting an application the Court or authority:

(a) is to impose a condition that the subpoena not be served after a specified day; and

(b) may impose other conditions."

Section 30 does not refer to leave to serve a subpoena, and that is terminology which related to the now repealed Service and Execution of Process Act 1901. An application under s30(1)(b) and (2) is one to abridge the time of fourteen days provided by s30(1)(a) between the service of the subpoena and when it is to be returnable. Section 30(3)(a) makes it mandatory for any order of abridgment of time under s30(1)(b) to contain a condition specifying a minimum time which must run between the service of the subpoena and its return date. No such minimum time was imposed here by the order of the Master. The order of the Master was not an order in terms of s30 and thus the service of the subpoena was ineffective in that s30(1) was not satisfied. In any event it is inconceivable that a Court would have imposed a condition under s30(3)(a) allowing in the circumstances only one day between the service of the subpoena in Queensland and its return. Thus there was no basis upon which the plaintiff could seek an order under s25 of the District Court Act to compel the attendance of Adams at the trial on the basis that he was in default of compliance with a subpoena properly served upon him.

Even if Queensland is "beyond the seas", which I do not need to determine, the statement cannot be admissible under s34c(1) of the Evidence Act because the attendance of Adams could, and should, have been enforced by a properly returnable subpoena: Smith v L A JohnsonPty Ltd [1968] SASR 353. However, as was recognised in Smith v L A Johnson it is a separate question whether the document can be admitted under s34c(2) which provides:

"(2) In any civil proceedings the Court may at any stage of the proceedings, if having regard to all of the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) of this section shall be admissible as evidence or may, without any such order having been made, admit such a statement in evidence -

(a) notwithstanding that the maker of the statement is available but not called as a witness ...."

There would have been undue delay and/or expense in bringing Adams to Adelaide to give evidence at the trial: Baggs v London Graving Dock [1943] 1 KB 291; Andrews v Cordiner [1947] 1 KB 655; White v Venus [1968] SASR 83; Cullis v Hamersley Iron Pty Ltd [1970] WAR 170. In the circumstances the issue of delay should be assessed on the basis that a subpoena had been effectively served on Adams in Queensland, but he had not complied with it. In that situation there would still have been substantial delay in obtaining and enforcing the necessary order under s25 of the District Court Act and possibly in dealing with an application under s33. That is a process which is likely to have taken some time and could well have extended beyond the closure of the plaintiff's case which occurred on 14 March 1997. A consequential adjournment of the trial would have caused considerable expense for the parties and would have been contrary to the principles of caseflow management. Under s34c(2) the Court is given a general discretion by virtue of the words "in the circumstances". As the evidence of Adams was on peripheral matters relating to the background of the relationship between the plaintiff, Rexco and ABC and as to a small part of the plaintiff's work history, it was not of great significance in the overall context of the issues in the trial. Weighing its limited potential probative value against the relevant delay and expense it was proper under s34c(2) to allow it to be admitted into evidence under the subsection. What, if any weight, is to be given to it will depend on other considerations. I reject the argument of counsel for ABC that since the plaintiff had embarked upon the course of seeking to subpoena Adams it could not then utilise s34c(2).

Ruling on privilege attaching to the statement of the witness Main

During the cross examination of Main it was disclosed that he had given a written statement to someone from WorkCover some years before.He said he had been shown it briefly about two weeks before the trial by someone representing the plaintiff.He told that person that the statement was correct, but he did not then read it completely.His cross examination was concluded and he was released.

Some days later ABC issued a subpoena to WorkCover Corporation to produce the statement from Main.Ms Kerrigan, from Piper Alderman, the solicitors for WorkCover, attended in answer to the subpoena and claimed legal professional privilege for it on behalf of WorkCover.She gave some evidence in support of the claim for privilege.Rather than embark on a complicated argument about privilegeI ruled that at that stage I was not prepared to order production of the document on the basis that it could only be relevant if Main was recalled for further cross-examination and no application had been made for that purpose.

Subsequently in the trial ABC called as part of its case Mr Iancar who had been employed in 1993 by Robertson & Co, loss adjusters, and who had taken the statementfrom Main.Robertson & Co had been instructed by Piper Alderman as solicitors for WorkCover to obtain the statement.I allowed the evidence of Mr Iancar to be taken de bene esse and had this statement marked for identification.Subsequently counsel for WorkCover attended and was given leave to argue the question of privilege.

I found that the statement was privileged.WorkCover by virtue of the provisions of the Workers Rehabilitation and Compensation Act of 1986 had a legitimate legal and commercial interest in the claims by the plaintiff both for compensation against his employer Rexco and for common law damages against ABC.There was no suggestion that WorkCover obtained the statement from Main other than for the sole purpose of use in any litigation in which it might be involved relating to its interest in claims by the plaintiff arising out of the incidents at ABC in October 1990.Accordingly legal professional privilege attached to the statement.

Counsel for ABC submitted that if privilege attached to the statement it had been waived by WorkCover furnishing a copy of it to the plaintiff's solicitors. It was a proper inference from the evidence of Main that the plaintiff's solicitors had a copy of the statement.I was not informed of the circumstances in which they had obtained such a copy, but I presume that it was by proper means.The mere fact that there had been such disclosure of the statement to the plaintiff does not mean that there had been a waiver of privilege by WorkCover for all purposes:State Bank of South Australia v Smoothdale (1995) 64 SASR 224.It is clearly in WorkCover's interest to have the plaintiff's action against ABC succeed as WorkCover has claimed a first charge on his damages to recover what it has paid out to him.This probably gives WorkCover some common interest with the plaintiff in the present proceedings: Rank Film v ENT Ltd (1994) 4 Tas R 281. Ultimately the scope of a waiver is to be governed by considerations of fairness in the circumstances: Attorney General Northern Territory v Maurice (1986) 69 ALR 31;Newcrest Mining Ltd v The Commonwealth (1993) 113 ALR 370;Goldberg v Ng (1993) 33 NSWLR 639, (1995) 132 ALR 57;Benecke v National Bank (1993) 35 NSWLR 110. Here there was nothing unfair to ABC about WorkCover supplying to the plaintiff the benefit of its investigations into the circumstances of the first common law claim without also disclosing it to ABC.Presumably if WorkCover had not done it, the plaintiff's solicitors would themselves have taken a statement from Main.Accordingly, I held that there was no waiver of the privilege.I returned the statement to counsel for WorkCover and did not look at it.At no stage was any application made by ABC to recall Main for further cross-examination on any such statement or otherwise.

ASSESSMENT OF DAMAGES

Pre Accident History

The plaintiff was born in 1958 and was 39 years of age at the time of trial. He left school in 1973 aged 15.He worked in a variety of generally unskilled employment.In 1976 he injured his back for which he underwent two operations. He still has occasional problems with his back for which he requires chiropractic treatment, but it did not subsequently impede his working capacity.From 1984 to 1987 he worked for the South Australian Brewing Company as a factory hand.On 22 December 1984 he married his wife, Christine Harkins. She was then a script clerk working for a sharebroker and had been employed in various secretarial and administrative positions.She has always managed the finances of the family.Shortly after the marriage they purchased a home at Glenelg North for about $75,000 of which $25,000 was borrowed from a bank and $50,000 was contributed by the wife.Their only child Ben was born in 1985. In 1986 the plaintiff, in partnership with his wife, commenced a hobby of keeping, breeding, training and racing greyhounds.Over the years they have had numerous greyhounds and on an average usually have had about three kennelled at their home.In September 1986 the plaintiff suffered a left sided rhomboid strain while at work but it did not result in any permanent disability.In late 1987 he left SA Brewing Company and remained at home for about the next 18 months looking after his son while his wife worked to provide the family's income.In 1988 the plaintiff started a series of jobs on night shift so that he could be at home during the day with his son while his wife worked.He was employed by Philmac Industries on process work from 1 July 1989 to 26 January 1990.His son started school in 1990.On 6 March 1990 he started employment with Rexco as was mentioned earlier.He worked at a variety of places for Rexco and often grossed between $700 to $800 per week.It was usually heavy manual work.Mr Adams of Rexco found him to be a willing worker with a positive attitude and prepared to do dirty and heavy work which other employees were often reluctant to do.In the financial year ended June 1990 his gross taxable income was $25,340.While with Rexco he did some work at GMH Elizabeth.He was offered permanent night shift employment there as a cleaner, but he rejected the offer because the location was too far away from his home at Glenelg.He hoped through his employment with Rexco to find suitable permanent employment with one of its clients.It probably would have been heavy manual type of work. He was motivated to work and enjoyed work.His marriage and family life were happy.

Post Injury History

On 30 October 1990 the plaintiff saw Dr Hughes who diagnosed a left rotator cuff injury, prescribed anti-inflammatory medication and physiotherapy and certified him unfit for work.He had physiotherapy and acupuncture treatment. During succeeding visits he also complained to Dr Hughes about his right shoulder where he was having similar pain to his left shoulder.As from 19 November 1990 he went back to his former general practitioner, Dr Risely, who diagnosed capsulitis in the right shoulder.He referred the plaintiff to another physiotherapist.With the tacit consent of Dr Risely he also regularly underwent chiropractic treatment on his shoulders.The physiotherapy and chiropractic treatment gave him some symptomatic relief.He continued to suffer pain in both shoulders.It caused him persistent difficulty in sleeping.Dr Risely prescribed him Normison which is a sleeping tablet, Panadeine Forte for pain and anti inflammatory medication.In February 1991 he was referred to a surgeon, Mr Middleton, who gave him a painful steroid injection into the right shoulder.It improved this shoulder for about two weeks, but then the previous pain resumed, although there were some fluctuations in both shoulders.When he was in pain he gained some relief from his wife rubbing his shoulders.He was limited in what he could do with his arms around the house because of the pain and he became frustrated when he could not do simple jobs such as changing light bulbs.His wife had to do more in caring for the dogs than previously because of his disabilities.As a result of his medication his snoring became much worse than previously, to the extent where it could be heard out in the street, and his wife was forced to sleep in a separate room.Dr Risely continued to certify him unfit for work. He was receiving income maintenance payments through WorkCover, but these reduced to 80% of his previous earnings after twelve months.His wife was working at Tegel Turkeys to provide further income for the family.Ms O'Callaghan was a rehabilitation counsellor with ReCover, who was handling the plaintiff's rehabilitation on behalf of WorkCover.In about August 1991 she arranged a program of work hardening to prepare him for some return to work. In this he underwent exercise programs, physiotherapy and hydrotherapy for the benefit of both shoulders.In about December 1991 he returned to Rexco part time on light duties.He was able to handle these without great difficulty.

In March 1992 the plaintiff resigned from Rexco and ceased his light duties there.I reject his evidence that he was told that no more light duties were available and that Ms O'Callaghan lied to him about this and what courses were then open to him.I find that the plaintiff through discussions with friends involved in dog racing decided he could successfully run a pet food business using his contacts in the dog racing industry.He believed that he could obtain a lump sum s43 payment from WorkCover to help set it up, but in fact this did not eventuate until 1995.He probably believed that he was unlikely to return to heavy labouring work of the type which he had previously done and he sought his own pet food business to that ensure he had permanent lighter employment for the future.It was an impetuous, ill considered and bad decision.Later he did not tell the truth about what had given rise to it to shift the blame from himself for the adverse financial consequences which ultimately ensued.On about 30 March 1992 he voluntarily withdrew from the WorkCover scheme. He had not discussed his plans for the pet food business with Ms O'Callaghan and she did not cajole him into signing the voluntary withdrawal.

On 1 April 1992 the plaintiff and his wife started the "Marion Pet Food business" in partnership in a shop on Marion Road.The wife did not at that stage work in the business but she kept the books, such as they were.They spent about $9,000 on plant and equipment to set up the shop.To pay for this plant, and to obtain working capital, they borrowed about $20,000 from a Mr Vivash at 12% pa.In addition they re-financed the loan on their home through him so that the total amount borrowed from Mr Vivash was about $51,000.In August 1992 they bought their first station wagon, which was needed for the business, for $9,000 and obtained finance for this which had to be repaid at $400 per month.The plaintiff set up the business with various trolleys, benches and the like to minimise the strain on his shoulders.Much of the stock was kangaroo meat in 25 kilo bags which he had to lift and manoeuvre.He had significant pain in both shoulders from the physical activities required of him in the business, but he put up with it as best he could.He was very enthusiastic and determined to succeed.His wife and son helped him on occasions in lifting when his shoulders were too painful.He continued to see Dr Risely, to take painkilling and anti-inflammatory medication and to have chiropractic and physiotherapy treatment which gave him some relief.In about mid 1992 he saw a massage therapist on a few occasions, but he ceased that treatment because it was causing him more pain than it prevented.His pain fluctuated, but on bad days he could have pain even on minor activities such as winding down a car window.After work he often went to Lennie's Tavern to drink with friends.He had no previous experience in running his own business. It did not prosper.In the first three months the recorded sales were only $6,307 and a loss was claimed for taxation purposes of $9,951.

In 1993 the plaintiff's problems with his shoulders continued and the business still did not prosper.On 1 April 1993 a further $14,000 was borrowed from Mr Vivash.In about April 1993 the plaintiff's wife became unemployed and she started working in the pet food business in an effort to take some of the load off the plaintiff as the work in the shop was becoming more than he could bear. In April 1993 Dr Risely referred him to Mr Sandow, an orthopaedic surgeon, who on 15 July 1993 performed arthroscopic surgery on the right shoulder after a diagnosis of a possible partial rotator cuff tear with sub acromial impingement.He was in hospital for one day and subsequently had further physiotherapy and hydrotherapy treatment on the right shoulder.This surgery improved the right shoulder for about six months, but then it deteriorated back to what it had been before the surgery.The plaintiff did not make any great complaint to Dr Sandow about his left shoulder, but I accept that his problems with that shoulder fluctuated and overall the right shoulder was worse than the left.The plaintiff's sleeping problems continued.He became increasingly frustrated as he could not find a cure for his pain and the business did not prosper.In the financial year ended 30 June 1993 a loss of $38,256 was claimed for the business partnership for taxation purposes.He still continued with the hobby of his dogs apparently unabated.

On 7 March 1994 a further $10,000 was borrowed from Mr Vivash.As a result of his continued problems with his shoulders and the alleged losses in the business the plaintiff sought a resumption of his WorkCover income maintenance payments.After considerable delays and difficulties, which frustrated the plaintiff, in about mid 1994 he received a substantial lump sum payment for arrears of income maintenance and interest.The precise amount received after tax was not disclosed in the evidence, but it was in the vicinity of about $40,000.This was spent over the next few months in a variety of ways including repayment of about $2,500 which had previously been borrowed from his mother-in-law to meet expenses, about $7,000 on a new garage and kennels, a new stove and washing machine, painting the house, a new dog trailer for $1,900, a new fence around the house, a new vacuum cleaner and other things.Thereafter he received regular income maintenance payments from WorkCover.The taxation documents claimed a loss of $35,138 for the partnership business for the financial year ending June 1994.In November 1994 a further $5,000 was borrowed from Mr Vivash.

In about early to mid 1994 the plaintiff consulted Dr Risely about emotional problems and depression.He burst into tears on several occasions when telling Dr Risely of his difficulties.He was antagonistic towards WorkCover for delaying payments which he believed were due to him, towards his solicitors for perceived delays in the claims against WorkCover and in this action and towards the medical profession for not providing a permanent cure for his shoulder pain.Dr Risely was reluctant to refer him to any further specialists about his shoulders because he had already seen a number and he believed that he merely had tendon tears which he optimistically thought would heal in time. The volume of sales in the shop was increasing which meant he had to lift and carry more stock.This accentuated the shoulder pain.Insofar as his wife and son helped with the lifting he felt guilty about imposing on them to do what he thought was his task.He was losing his temper too often and there were conflicts with his wife.Dr Risely prescribed Prosac for the depression but it did not assist.He was continuing to have chiropractic treatment for his shoulders which was giving him some symptomatic relief .On 22 November 1994 he saw Dr Risely for the last time.On that day he also saw Mr Fry, an orthopaedic surgeon, for a medico-legal examination arranged by his solicitors. Mr Fry found clear mechanical impingement problems in both shoulders and arranged for him to be referred to Mr Maguire to consider further treatment. An appointment was made for him to see Mr Maguire on 22 December 1994.

In early December 1994 the plaintiff had become very depressed through continuing frustration arising from his shoulder pain, his consequent problems in sleeping, delays in his legal claims and the inability of the medical profession to treat his problems effectively.On 9 December he attempted to commit suicide by taking an overdose of his medication.He had his stomach pumped out.He was referred to Dr Jagermann, a psychiatrist, who first saw him on 13 December.He has been under Dr Jagermann's care ever since and has been seen by him on numerous occasions.

On 19 December 1994 the plaintiff fell at his home after he had stubbed his toe and tripped over a briefcase.He immediately lost his self control and in great anger punched a glass pane in an internal door with his right fist three times in quick succession.This badly lacerated his right wrist and blood went everywhere.His wife and son were in close proximity, saw what occurred and were highly traumatised by it.His loss of control was through similar frustrations which had led to the suicide attempt ten days earlier.He was admitted to the Flinders Medical Centre with lacerations of various arteries, nerves and tendons in his right hand and wrist.He underwent microsurgery.He was discharged from the Flinders Medical Centre on 22 December but it took a further six months for his wrist and hand to heal properly.He saw Mr Maguire on that day but he was unable to examine the right shoulder properly because of the arm injury.Dr Jagermann then admitted him to the Fullarton Private Hospital where he remained for six weeks and where he was given various tranquillising medication.As a result of this incident Mrs Harkins had to run the shop only with the help of her young son.Understandably the family did not tell people the real truth about the arm injuries to the plaintiff but concocted a story of him having tripped and fallen through the glass door.

After his release from the Fullarton Hospital in about early February 1995 the plaintiff went back home and resume work in the shop.Dr Jagermann had prescribed the tranquilliser, Neurolactil, for him, but it appears that at some stage in February he decided for himself not to take it.In late February and early March he was training and racing his dogs.More will be said of this later.

On 14 March 1995 the plaintiff was involved in a dispute with another motorist, Mr Hoskings. The events giving rise to the dispute are immaterial, butduring an argument the plaintiff in a fit of rage hit Hoskings two blows to his face without any justification.As a result the plaintiff was convicted of assault occasioning actual bodily harm.On 4 May 1995 Mr Maguire operated on the plaintiff's right shoulder where he excised a bursa to remove a tuberocity impingement.He was in hospital for ten days.Initially after the operation the shoulder was painful, but after it healed he has had a lot of relief and his symptoms in that shoulder have since abated substantially.At the instigation of Dr Jagermann he spent six weeks in the Fullarton Hospital after this operation for psychiatric monitoring and treatment.In June 1995 the plaintiff and his wife bought a new car on time payment for $14,216 after trading in their existing car which had been giving them trouble.On 1 August Mr Maguire performed a similar operation on the plaintiff's left shoulder for which he was in hospital for three days.Again he spent another six weeks in the Fullarton Hospital after his surgery.He had physiotherapy treatment after both operations.During his convalescence and time in the Fullarton Hospital his wife had to run the business.After the second operation his left shoulder was also improved.He has since not had as much trouble with sleeping but he still has some difficulty.Later in 1995 he returned to working in the shop but he was depressed and had difficulty in dealing satisfactorily with customers.After he came out of hospital his wife thought him to be zombie like.Difficulties were developing in the marriage.His wife was also under a lot of stress and strain from running the shop and from difficulties with their son who was not performing well at school and was truanting.She also was under medical treatment for depression.However, the financial position of the business was improving and the taxation documents for the 1995 financial year showed a record turnover and a loss claimed of only $3,252.The plaintiff was regularly attending dog racing meetings.Although the operations by Mr Maguire had substantially improved the plaintiff's shoulders, he was still suffering pain on heavy activity.He was unable to complete the mowing of his lawns and his son generally had to do this for him, which upset him.In December 1995 an undercover inquiry agent employed by ABC ordered a 1,000 kilos of kangaroo meat from the shop and the plaintiff was secretly filmed loading the meat.However I accept that this caused him considerable discomfort in his shoulders and he was forced into it by a representation made by the agent that assistance with the loading would be provided which was false.

The business was sold as at 26 February 1996 for $15,000 plus $3,000 for the stock.The medical conditions of both the plaintiff and his wife were then such that it was necessary for them to sell at that time even though they were hopeful that the business could shortly become profitable.In the 1996 financial year to the date of sale the taxation documents claimed a loss of $16,001.The plaintiff has not worked since the sale of the shop.He has done very little other than some involvement with his dogs.He has continued with chiropractic treatment for his shoulders.

Shortly after the sale of the shop the plaintiff and his wife separated.This necessitated his re-admission to the Fullarton Hospital.Subsequently he obtained a flat at Morphettville, but he has not coped well with living there and has since spent more time in the Fullarton Hospital than at that flat. While in hospital he visits his former home at Glenelg almost daily and attends to his dogs.His wife either visits him in hospital or sees him when he visits the home.She still occasionally massages his shoulders.He has attempted to negotiate a reconciliation with his wife but she has refused to resume co-habitation.She believes it is unlikely that the marriage can be resurrected, but she has not yet told him that.She believes that at present their son is better off not living with the plaintiff.The son is having to repeat year 6 at school and this is a source of concern.In October 1996 the plaintiff was re-admitted to the Fullarton Hospital.He was given trial leave in December, but this was not successful and he has remained in the Fullarton Hospital ever since.The plaintiff and his wife now owe about $80,000 to Mr Vivash.They cannot afford to pay the interest.It is substantially in arrears and is being added to the principal.The Glenelg house is unofficially listed for sale.If the plaintiff does not obtain enough money from this claim to pay out that debt, the Glenelg house will have to be sold to satisfy it. WorkCover claimed to have a first charge for $576,403 as at 27 February 1997, on any damages awarded against ABC in this case, but counsel for ABC did not concede this. On the evidence before me I consider that it does have such a charge.

The Witnesses

I refer to what I have said above about the plaintiff's evidence on the issue of liability.There are also major aspects of his evidence relating to the assessment which I cannot accept.He did not tell anything like the truth about why he left the part-time light duties at Rexco in March 1992 or about the incident with Mr Hoskings in March 1995.Whether this was because he has deluded himself about them or because he was lying to deflect blame from himself it is not necessary to decide.It was strange that there was no mention in his evidence in chief of his involvement with greyhounds, which was a major part of his life.His evidence about his betting was not persuasive. Initially he said he did not recall taking money out of the till for betting, but then he said it did not happen very often and only for small amounts.His assertion in re-examination that he kept some of his own money in the till was beyond belief , and it was not supported by the evidence of his wife.He falsely claimed that a big bet for him was $5 and that he did not bet on the majority of races.From 22 February 1995 to 6 March 1995 ABC had a Mr Pfeiffer strike up a friendship with the plaintiff in that short period.Mr Pfeiffer has given a picture of the plaintiff's lifestyle in that period.I accept his evidence.Objection was taken to it on the grounds that it was procured by unfair means in that it was unethical for the solicitors for ABC to have had an investigator speak with the plaintiff when they knew that he had solicitors acting for him.Even if it was unethical, on which I need not comment, it is not a ground to exclude the resultant evidence on a civil trial:Mazinski v Bakka (1978) 20 SASR 350.On 23 February the plaintiff took $60 from the till which he bet at the nearby TAB and he won $49.On 24 February he bet $15 on a trifecta and $50 on mystery bets and won $354 on the trifecta.On 3 March he bet $35.I find that the plaintiff regularly bet on dog and horse races although no-one ever thought that he had a gambling problem.He had some winnings on his betting, but I do not accept his estimate that he only lost about $500 a year through gambling.It was likely to have been far more.I accept Pfeiffer's evidence that on 23 February the plaintiff took $4 out of the till to pay for beer.This was likely to have been a fairly regular occurrence.The long video film did not discredit the plaintiff.As Mr Fry said, it did not show him doing anything which he said that he could not do. It did not show whether he suffered pain after some activities.It confirmed that from 1994 to 1996 he was heavily involved in dog racing.

After some hesitation I have concluded that the evidence of Mrs Harkins is not wholly reliable.There was a strange inconsistency between her version of the plaintiff's behaviour in 1995 and onwards when compared with the evidence of Dr Jagermann.She said that the plaintiff had only hit her once and the son once, but Dr Jagermann suggested it was more often than that.They both saw the plaintiff regularly in this period and each would be expected to know of the matters referred to by Dr Jagermann.I prefer the evidence of Dr Jagermann where there is a conflict.It may be that Mrs Harkins is reluctant to acknowledge matters which are possibly perceived as discreditable to her husband.Her evidence about the financial affairs of the business was unsatisfactory.Insofar as there was any conflict in the medical evidence I generally prefer that of Dr Jagermann and Mr Maguire, the treating practitioners, to that of other practitioners.

Shoulder Injuries

As a result of the incident in his employment at ABC the plaintiff suffered a lateral rotator cuff impingement conditions in each shoulder.He did not suffer capsulitis or any tendon tear.He did not received the correct diagnosis or treatment for his shoulder problems until he saw Mr Maguire in 1995.This was most unfortunate for him as many of his other problems would not have eventuated if he had had the proper treatment sooner.The major symptom of the rotator cuff impingements was pain and consequential sleeplessness.It did not significantly diminish the range of movement in the shoulders.As the plaintiff was motivated to work and was determined to make a success of his pet food business he suffered substantial pain in those activities up until his operations in 1995, albeit that it was alleviated to some extent by medication, physiotherapy and chiropractic treatment.Since his operations in 1995 the condition of his shoulders has substantially improved but he still has some residual problems of pain and minor restrictions of movement.Since late in 1995 he has been physically fit for light to moderate work but not for heavy work.He will never again be able to undertake the type of heavy labouring employment which he did before October 1990.

The plaintiff was predisposed to rotator cuff impingement conditions in each of his shoulders because he naturally had tight sub acromial spaces. Therefore even if there had been no breach of duty by ABC it is more likely than not that in the next five to ten years after the incidents at ABC he would have suffered similar conditions in his shoulders to some significant extent through the type of heavy labouring work which he was likely to have pursued. Hence to a substantial degree the breach of duty by ABC has merely hastened by five to ten years a disability in each shoulder which would have been likely in any event and thus the plaintiff's present physical limitations for work would have been likely, although not inevitable, after that five to ten year period. Whether he would then have ventured into a pet food business or the like to give himself employment is unknown, but it is reasonably possible.If so, it is also likely to have failed.

Psychiatric condition

As Dr Jagermann stated, the plaintiff is highly impulsive, does not think before he acts, is rigid and inflexible, has no insight into his own problems or the points of view of others, is incapable of assuming responsibility for himself and has been unable to adjust to his losses which have resulted from the breach of duty by ABC.He has suffered from varying degrees of depression from similar causes.He has had episodes of suicidal and homicidal thoughts which he may well have put into effect but for the intervention of Dr Jagermann and others.There are instances of him hitting his wife and son, behaving violently and making wild threats.His impulsivity, which might precipitate him giving effect to his suicidal and homicidal ideas, can be controlled by him taking medication such as Neurolactil.However where the plaintiff has been out of hospital he has not always taken his medication and has on occasions consumed excessive alcohol which has caused problems in combination with his medication.The criminal assault on Hoskings in March 1995 occurred after the plaintiff had taken himself off Neurolactil.The main reason for him being kept in the Fullarton Hospital for such long periods has been to ensure that he takes the appropriate medication.When he is out of hospital and living on his own Dr Jagermann is not prepared to trust him with medication because of his previous attempt at suicide by a drug overdose.Dr Jagermann does not regard him as a risk when he is adequately sedated, but considers that there are real risks if he is not sedated, particularly if his drugs are to be mixed with alcohol.His drugs increase his obesity and his loud snoring.His psychiatric treatment has not been successful and the prognosis is poor.

The plaintiff was a conscientious worker who enjoyed work and derived self esteem from it.He has been unable to come to terms with his inability to be employed in the type of heavy work which he was doing before the incidents in question.He overestimated his capacity to run a small business and the failure of that business has had a severe adverse effect on him.He has feelings of guilt and remorse because of the indirect adverse effects which his physical and psychiatric disabilities resulting from the incidents at ABC have had on his wife and son.He has not been able to cope mentally or emotionally with these things and they have led to his present predicament.Since December 1994 they have effectively made him unemployable.

Regrettably for the plaintiff it would seem that there is still worse to come. This case, with its undoubted difficulties and uncertainties, has weighed heavily upon him.While its resolution will remove one stressful factor it seems likely that it will only be for the financial benefit of WorkCover and that it will not enable him to pay out the Vivash debt and so save the matrimonial home.He has dreams of moving to Western Australia and becoming a professional dog trainer there which supposedly will help to solve his financial problems, but this seems to be quite unrealistic.There appears to be no apparent solutions to his present financial problems.It is unlikely that his marriage can be resurrected although that is not impossible.An ultimate realisationthat it has irretrievably broken down will hit him very hard.As his mental coping mechanisms have already been strained and impaired by the misfortunes which he has previously suffered it would seem that he will suffer continuations of his major psychiatric symptoms when these further misfortunes befall him.

While all of these psychiatric problems stem from the breach of duty of ABC on the opinion of Dr Jagermann it would appear that if that breach of duty had not occurred, but that the plaintiff's ability to carry out physical work had been impaired in 5 to 10 years in any event as Mr Maguire expected, it is likely that the plaintiff would have reacted to that equally violently in the future and that it would have hit him hard psychologically.While I accept that the whole of the operative circumstances in the future, if there had been no breach of duty by ABC, might not have been as devastating for the plaintiff as have been the circumstances related above, it is more likely than not that in 5 to 10 years after October 1990 he would have been mentally and emotionally impaired to some significant degree as a result of his physical disabilities. Hence not all of his likely long term psychiatric disability can be held to be caused by the breach of duty of ABC.

I accept that his right wrist injury on 19 December 1994 was caused by his depression and frustration resulting from factors emanating from the breach of duty by ABC.While that has healed reasonably well he has some permanent residual disability of loss of strength in his wrist and tenderness.His ability to write has been slightly affected.

Financial Affairs of the pet food shop

The evidence about the financial affairs of the pet shop business was a shambles.The plaintiff initially tendered tax returns showing profit and loss accounts for each of the financial years of the business and claimed half of the total accumulated losses of $42,231 which he said had been incurred in an attempt to mitigate his damage.However, upon closer examination it became clear that much of the information put forward was unreliable.It was initially the plaintiff's case that the additional borrowings from Mr Vivash in 1993 and 1994 were to offset losses in the business and to provide continuing working capital, but that could not be wholly substantiated.After the plaintiff's wife in her cross examination could not identify these payments from Vivash in the business bank statements she belatedly produced other documents which showed that about $4,500 of the payment of $14,000 in March 1993 did not go into the business account, $5,000 of the $10,000 received in March 1994 did not go into the business account and it was unclear what had happened to the $5,000 received in November 1994.She made reference to a deposit of $2,600 in her own cheque account which was labelled "card entry at Parkholme branch" which she said was part of this last $5,000.She also referred to an entry in the bank statement of the business account for 23 November showing a deposit of $2,780 which she said in part represented this money from Vivash, but the deposit slip showed that $2,400 of that deposit was in cash which makes it doubtful if it came from that loan.I am satisfied that a substantial part of the additional moneys borrowed from Vivash was applied by the plaintiff and his wife for their own purposes which they have not seen fit to explain to the Court.

The system employed in the business was that the cash received was supposed to be put into a till.Numerous cash purchases were made from the money in the till and only the surplus from the till, and the cheques received, were deposited into the business bank account.The plaintiff's wife kept a type of cash book which from July 1993 purported to record the cash receipts and the cash payments for each day.Although it was not pursued in evidence, this book has all the appearance of not being a contemporaneous record and being written up well after the events in question.The plaintiff's wife said that she did not reconcile the till cash receipts against the banking, but she said that what went through the till had to be accounted for, including money for bets. I do not accept that.As I found earlier, the plaintiff took significant amounts out of the till for gambling and alcohol which are not reflected in the cash ledger or anywhere else in the records.The defendant's undercover agent who bought the 1,000 kilos of Kangaroo meat in December 1995 paid several hundred dollars for this meat, but neither his payment nor the apparent purchase of the meat by the shop is recorded in any record of the business.A cash receipt for $400 was issued to this purchaser apparently for a deposit which he paid, but the duplicate receipt book was not produced to the accountant who prepared the profit and loss accounts.As counsel for ABC pointed out the cash bankings in the few weeks prior to the injections of further funds from the additional Vivash borrowings were unusually low from which it is to be inferred that the plaintiff and/or his wife were taking substantial amounts of cash out of the business in those periods.It was accepted that when Mrs Harkins ceased earning an income from Tegel Turkeys in about April 1993 until the WorkCover income maintenance payments resumed in mid 1994 the family had no income except what they took out of the business, and even outside of those times some drawings from the business were apparently required to meet personal expenses.No reliable record was kept of the amounts which the plaintiff and/or his wife took from the business.In the profit and loss accounts and balance sheets the accountants merely designated as partners' salaries, or the like, amounts which were not otherwise accounted for and therefore were treated as partners drawings.The whole integrity of the book keeping system was based firstly on all of the cash received going through the till and secondly on the records being correct which were given by the plaintiff and his wife to the accountants from which the cash income was calculated.The accountants did not verify the figures they were given against the till records.The plaintiff and his wife have had been shown on the evidence not to be prudent financial managers and apparently to have had difficulty in living within their incomes.They have failed to satisfy me on the balance ofprobabilities that the primary records concerning the cash income of the business are reliable.

The evidence disclosed that the plaintiff and his wife had not made an allowance in their accounts prepared for income tax purposes for $15 to $20 per week for dog food which they took out of the business and they had improperly claimed the interest being paid to Mr Vivash for part of the loan which represented moneys borrowed on their house as a business expense.Those matters in themselves would have enabled adjustments to have been made to the other figures supplied to work out what was the plaintiff's true income from the partnership in the relevant years.While a number of documents were tendered, they are not the complete primary records of the business.It is probably impossible to calculate from the documents which are in evidence, and which are reliable, what was the true financial position of the business. However, I do not consider it is incumbent upon a trial Judge to attempt that accounting exercise.If either party had wished it to be done they should have called an expert to put the necessary calculations before the Court.Of necessity I am required to determine the issue on a very broadaxe basis.

Economic Loss

From 30 October 1990 until the present the plaintiff has suffered as a result of the breach of duty of ABC a total loss of his earning capacity less anything which he derived from the pet food business.For the reasons already stated the plaintiff is likely to have received considerably more in cash from that business than he admitted.However, unless the business was profitable in the accounting period in which much money was taken, it is not to be treated as income because the plaintiff remains liable for the accumulated losses which are in part represented by the outstanding loan to Vivash and which will be ultimately met out of the sale of the family home.In reality much of the additional cash which he took was indirectly appropriated to the Vivash debt insofar as that debt was otherwise partly applied to make up the cash deficiency in the business.In respect of the 1996 financial year it was the $15,000 received from the sale of the plant and equipment of the business, which itself had been financed by the initial Vivash loan, which presumably met the loss of $16,000 in that financial year.Hence it was only in the 1995 financial year, in which the loss according to records for taxation purposes was only $2,352, that there is a possibility that the plaintiff could have received any profits from the partnership for his own benefit.In view of the paucity of the evidence all I can do is make a general deduction in the global award for past economic loss for some cash benefit which the plaintiff probably received in that financial year but taking into account the other matters referred to above, that he was hospitalised for part of that year and that he was only entitled to half of the profits.I ignore the entries in the profit and loss accounts for partners' salaries and the like as they do not represent income actually received by the plaintiff.In his final address counsel for the plaintiff abandoned his claim for half of the losses of the pet food shop partnership.On the evidence these could not be sustained.

It was common ground that the plaintiff was earning about $500 per week gross, and about $400 per week net, in October 1990 and that this figure should be used to calculate his economic loss.There was no evidence of the increases in wage levels between that time and the present.Some small allowance must be made for the possibility of unemployment in that period if there had been no breach of duty by ABC, but in view of his good work history and his motivation to work the discount is to be small.On the opinion of Mr Maguire the present may well have been about the time when he would have suffered rotator cuff impingements in any event, but only a small discount is to be made from the past economic loss for this contingency.There was some dispute about whether the past economic loss should be allowed as a gross sum because it would all be repayable to WorkCover or whether it should be allowed as a net sum together with pre-judgment interest.Counsel agreed that I should publish these reasons in terms of gross loss.Damages for past economic loss are assessed at $155,000.Nothing was claimed for any losses in earnings from the dogs.

As mentioned Mr Maguire expected that the plaintiff would encounter rotator cuff impingements at about this stage in his life in any event.Likewise Dr Jagermann anticipated that if he had suffered a restriction on his physical earning capacity because of rotator cuff impingement problems he would because of his personality traits have suffered some psychiatric problems of the type which he has in fact experienced.However, it is not very likely that other circumstances would have conspired against him in that eventuality wholly in the way in which they have since 1990.While he may have been psychiatrically disabled for some time from utilising his residual physical earning capacity it would probably not have been as severe as is now the case.While physically he can now manage light to moderate work, and some work of the kinds which he did before the accident, such as process work and some hotel work, his ongoing psychiatric problems almost wipe out his ability to hold down employment within his limited physical capacity.Even if there had been no breach of duty, but he had suffered rotator cuff impingement problems which had restricted him from heavy work, it is likely that the associated psychiatric problems would in that event have also restricted him from exploiting his limited physical earning capacity, but not to the same degree as has now occurred.His damages for future loss are to be reduced to the extent that it has been shown that other causes would have produced that loss in any event:Malec v J C Hutton Pty Ltd
(1990) 169 CLR 638.He has a less than usual life expectancy because of his suicidal tendencies.To the extent that the risk of suicide has been increased by the breach of duty of ABC the measure of damages for future loss is to be reduced by his living expenses which would not be incurred in that event: Skelton v Collins (1966) 115 CLR 94;Sharman v Evans (1977) 138 CLR 563 at 579-583.Contrary to the submission of the plaintiff the damages for future loss are to be assessed on a basis net of tax:Calvaresi v Lawson (1995) 184 LSJS 147 at 176-190;Wardleworth v Green (above) at 461.Damages for future economic loss are assessed at$110,000.

Non Economic Loss

The plaintiff experienced considerable pain and discomfort in his shoulders in his effort to mitigate his loss by running the pet food business.Although he claimed a major dislocation of his social life, on the evidence it appears that he has largely maintained his previous involvement with dogs and dog racing and while he was working in the shop he had a regular social outlet while drinking after work at Lennie's Tavern.Similar comments apply as stated above for economic loss as to the periods for which damages for both past and future non economic loss are to be allowed.It seems likely that he has lost the benefit of his marriage as a result of ABC's breach of duty.While there is some prospect that this would have occurred in any event at some later time as a result of rotator cuff impingements and their psychiatric consequences, it is not as great a prospect as he now faces.He no longer plays lawn bowls. Damages for non economic loss are assessed at $45,000 past and $35,000 future.

Special Damages

These have all been paid by WorkCover.As at 27 June 1997 they totalled $183,282.They all result from proper and reasonable treatment and hospitalisation caused by the breach of duty of ABC.The quantum was not questioned. Counsel for ABC challenged the length of hospitalisation at the Fullarton Hospital.I accept Dr Jagermann's conclusion that it was reasonable. He was in a very difficult position in view of the harm which the plaintiff could have done if he was not on proper medication and he was justified in erring on the side of caution.While there has been a large amount of physiotherapy, chiropractic treatment and hydrotherapy this was reasonable in the light of the plaintiff's persistent pain in both shoulders and the inability of the medical profession to deal with it for so long. Dr Jagermann expects the plaintiff to remain in the Fullarton Hospital for at least a month after judgment to enable him to come to terms with it and other matters which are likely to come to a head in that time.It may well be longer.The cost of such hospitalisation is between $400 and $600 per day.However, Dr Jagermann acknowledged that he could not be kept in hospital forever.There may well be a substantial amount of future psychiatric hospitalisation, but some of that would have been incurred in any event as a result of rotator cuff impingement problems unrelated to this action.The plaintiff is likely to need ongoing psychiatric monitoring for many years, but he unlikely to gain any significant benefit from psychiatric treatment.The present cost is $172 per session.He will also need substantial psychiatric pharmaceuticals but their cost was not dealt with in the evidence.Occasional physiotherapy or chiropractic treatment may be required for ongoing pain in his shoulders but within a few years such treatment would have been required in any event.I allow $30,000 for future special damages.

Gratuitous Services

In his convalescence and during his continuing physical and psychiatric problems arising out of the breach of duty by ABC the plaintiff has received services from his wife over and above normal domestic assistance.No evidence was adduced of the commercial cost of such services.With the breakdown of the marriage likely it would seem these services will not continue into the future. On a broadaxe basis I allow $700 for such services.

Interest

The plaintiff is entitled to interest at 4% pa on the past non economic loss from October 1990 until judgment.The 1993 amendment to s39 of the District Court Act on pre-judgment interest is retrospective in its operation:Franks v Smith (1993) 173 LSJS 378.The period on which the interest is to be allowed was not disputed.Similar interest is also to be allowed on the past award for gratuitous services:Calvaresi v Lawson (1995) 184 LSJS 147.I allow a lump sum in lieu of interest of $8,600.

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

Past Economic Loss$155,000

Future Economic Loss$110,000

Past Non Economic Loss$5,000

Future Non Economic Loss$35,000

Past Special Damages$183,282

Future Special Damages$30,000

Gratuitous Services$700

Interest$8,600

Total$567,582

Reduction for contributory negligence

As found above the plaintiff's damage attributable to the left shoulder injury alone is to be reduced by 20% for contributory negligence in relation to that injury.Apart from a few items of special damages, which relate to only one shoulder, it is impossible to dissect the damage flowing from the left shoulder alone.Neither party attempted the exercise in the conduct of the trial.Of necessity I can only deal with the issue on a very broad axe basis.Overall the symptoms from the right shoulder injury generally were worse than those from the left shoulder injury.It is likely that the psychiatric consequences would have largely occurred even if the left shoulder had not been injured.If there had been no breach of duty by ABC, it is likely that the plaintiff would have experienced problems with both shoulders in the future, but even if he had only had problems with the right shoulder in the future, the effects on his economic and non economic loss would not have been greatly reduced.Most of the special damages would have been incurred if it had only been the right shoulder which was injured.There was no suggestion that the rate charged for concurrent treatments of both shoulders would have been less if only one shoulder had been treated.I find that the whole of the past economic loss would have been incurred even if there had been no left shoulder injury.On the other heads of damage, as assessed above, I find the following amounts to attributable to left shoulder injury alone:

Future Economic Loss$11,000

Past Non Economic Loss$9,000

Future Non Economic Loss$7,000

Past Special Damages$18,300

Future Special Damages$1,000

GratuitousServices$200

$46,500

Thus $9,300 is to be deducted for contributory negligence.

Judgment will be entered for $558,282. Immediately before the entry of judgment counsel for the defendant stated he did not oppose judgment being entered on the basis of the past economic loss being assessed as the gross loss rather than as the nett loss plus pre-judgment interest.

In Court on Friday, 27 June 1997

Reasons published. Judgment entered for the plaintiff for $558,282.

Costs of the action against the second defendant (excluding any proceedings against the first defendant) as agreed or taxed to be paid by the second defendant to the plaintiff.