James Leonard Southwell v Nominal Defendant No. SCGRG 91/2112 Judgment No. 4512 Number of Pages 19 Damages Insurance
[1994] SASC 4512
•20 April 1994
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA MATHESON(1), PRIOR(2) AND OLSSON(3) JJ
CWDS
Damages - measure and remoteness of damages in actions for tort - Appeal against award for future economic loss - appellant struck by unidentified vehicle, sustaining injury to right knee - later independently developed arthritis in that knee - whilst it remained symptomatic, arthritis was main disabling factor - arthritis in remission at time of trial - possible recurrence of arthritis a non-compensable contingency - award increased particularly in light of young age (35) of appellant.
Insurance - third party liability insurance - proceedings against nominal defendant - Cross appeal against refusal to dismiss claim for failure to comply with s115Motor Vehicles Act - whether due inquiry and search - ritual and futile steps not required - whether notice of claim as soon as reasonably practicable - Nominal Defendant unable to establish prejudice arising from delay in giving notice. Motor Vehicles Acts 115. Jobling v Associated Dairies Limited (1982) AC 794; Walker v Briddon (King CJ, 1 September 1986, unreported) and Plesa v Griffiths (1977) 15 SASR 434, applied.
HRNG ADELAIDE, 9 March 1994 #DATE 20:4:1994
Counsel for appellant: Mr N Niarchos
Solicitors for appellant: Niarchos and Co
Counsel for respondent: Mr I C Robertson
Solicitors for respondent: Piper Alderman
ORDER
Appeal allowed. Cross-appeal dismissed.
JUDGE1 MATHESON J On 12 September, 1988 the appellant sustained a serious and permanent injury to his right knee when he was struck by an unidentified motor vehicle in a car park. He sued the respondent, and now appeals from the assessment by a Master of this Court of $80,000 for future loss of earning capacity. The assessment was complicated by the fact that in late 1989 the appellant developed rheumatoid arthritis in most of his joints. The learned Master made comprehensive findings of fact in relation to the appellant's injury and in relation to his rheumatoid arthritis, and the appellant does not challenge any of those findings.
2. The assessment was made on 19 October, 1993. The appellant would have been 35 years of age on 11 December, 1993. After a somewhat chequered work record, he undertook a spray painting course with the TAFE College at Elizabeth in 1987. He was employed by GMH as a spray painter from October, 1987 to the date of the accident. Several months after the accident, he attempted to resume work, but only lasted a day. He has not worked since. His work as a spray painter consisted of working on a production line in a team spray painting new vehicles. The work was performed in a standing position, but he would have to move, squat and bend to carry out the spray painting procedures. He reached first year of secondary education but left half way through the year. He was then aged fifteen years. He had repeated a couple of years in primary school. The learned Master concluded that he would be unable to retrain for clerical work. After referring to the evidence of the three orthopaedic surgeons, the learned Master concluded that, ignoring the effect of the rheumatoid arthritis, the appellant would be unable to return to his previous work as a spray painter and would be restricted to semi-sedentary positions. His Honour then referred to the evidence of those rheumatologists, and said:
"It is clear from their evidence that for significant
periods prior to trial the plaintiff was disabled by the
rheumatoid arthritis to such an extent that, even if he had
not sustained the knee injury, he would not have been able
to work. Their evidence is also relevant to future economic
loss because of the opinions expressed as to the likelihood
or otherwise of the rheumatoid arthritis recurring. On the
basis of the evidence of the plaintiff and his wife, to
which I will shortly refer, and the opinions expressed by
the rheumatologists, I find that from late 1989 until late
1992 the plaintiff was disabled by the onset and continuance
of the condition of rheumatoid arthritis ... As to the
period from October 1992 to the date of trial, I find that
the plaintiff's rheumatoid arthritis has been quiescent and
that any working incapacity that he has is attributable to
the injury to his right knee ... I find that the plaintiff
has been precluded from carrying out other than light work
of a sedentary nature from October 1992 to the date of trial
as a result of disabilities caused to his right knee by the
injury experienced by him in September 1988. However, I
must take into account that it is probable that it would
have taken the plaintiff some time before he could re-enter
the work force after October 1992 and it is possible that he
may not have been able to obtain continuous employment
between October 1992 and the date of trial. As to the
future, I find, on the balance of probabilities, that, as a
result of the disabilities experienced by the plaintiff
which are referrable to the condition of his right knee, he
is permanently precluded from other than light sedentary
work. His lack of education and the difficulties he
experienced at school leads me to believe that he will not
in the future be able to obtain work of a clerical nature.
He is therefore limited to light work of an unskilled nature
for the remainder of his working life. No evidence was
given as to when the plaintiff would have ceased work had he
not been injured or suffered rheumatoid arthritis, but I
infer that he would have worked until at least 60 years of
age. I draw that inference from the fact that the
plaintiff's work record prior to the incident of September
1988 disclosed a history of intermittent work, although I
accept the plaintiff's evidence that, having obtained
qualification as a spray painter, he enjoyed such work at
GMH. I therefore consider that although his previous work
history may have been spasmodic, it is probable that he
would have continued in full-time employment for the
remainder of his working life, subject of course to the
possibility of retrenchment. I must also take into account
when considering future economic loss, the fact that the
plaintiff has not been cured of the condition of rheumatoid
arthritis. It is abundantly clear from all of the medical
evidence that it may recur in the future. Each of the
rheumatologists gave evidence in this regard and, in
accepting their evidence, I find that it has been
established on the balance of probabilities that it is
possible that the rheumatoid arthritis may recur within the
next 5 years and that it is probable that the condition will
recur 5 or 10 years from now. If there is a recurrence of
the plaintiff's condition, I find that it will be at least
as disabling as it was when it first occurred. There is a
reasonable possibility that the condition will be brought
under control by medication but there is the possibility
that in later years it may occur again. I find that if and
to the extent that the condition occurs in the future, it
will disable the plaintiff so that he will be unable to
carry out other than light sedentary work independently of
any remaining disability in his right knee caused by the
trauma of September 1988."
3. Finally his Honour said:
"As to future loss of earning capacity, the plaintiff
submitted that I should apply a multiplier of 799 to the
current net weekly loss of earnings sustained by the
plaintiff ($464.15) and then allow for contingencies.
Whilst in many cases that approach produces a reasonably
satisfactory result, it is of limited assistance in this
matter. There are too many imponderables. The multiplier
of 799 is based on a calculation to age 65 whereas I think
that the plaintiff would probably not have worked beyond
aged 60 ... The plaintiff also has a residual working
capacity but I do not consider it to be of much
significance. He would not be able to do work of a clerical
nature and, on an open labour market, it is unlikely that he
would in the future obtain work of a light unskilled nature.
In all the circumstances I consider that damages for future
loss of earning capacity should be assessed in the sum of
$80,000."
4. The assessment of future loss of earning capacity is always difficult and necessarily imprecise. It is especially difficult here because of the appellant's supervening rheumatoid arthritis in all his joints and the fact that it has not been finally cured. Having given the matter anxious consideration, I have concluded that $80,000 is manifestly inadequate.
5. At the time of the assessment, the appellant would have been earning $464.15 net per week as a spray painter at GMH. As counsel for the appellant pointed out, $80,000 only represents approximately three years and four months loss of earnings. I acknowledge that the present value of $464.15 per week for that period would be substantially less than $80,000, but nevertheless I consider the argument persuasive.
6. Next, his Honour has not been entirely consistent about the appellant's working life. In one place he says that he infers that "he would have worked until at least 60 years of age", and then towards the end of his judgment, he says "I think that the plaintiff would probably not have worked beyond aged 60". Accepting, as I suppose I must, the latter opinion, I consider nevertheless that in weighing the contingencies, allowance must be made for the real possibility that he would have worked beyond 60. The multiplier under the Australian Life Tables for this man (for this purpose, aged 35) is 786 to the age of 65, and 730 to the age of 60, and the choice can make a significant difference. Finally, I stress the plaintiff's comparative youth and the inexorable advance of medical science. I consider that some allowance should be made for the favourable contingency that better drugs and better treatment will more effectively control the appellant's rheumatoid arthritis when it recurs.
7. In all the circumstances, I would allow the appeal and increase the allowance for future loss of earning capacity to $120,000. As far as the cross-appeal is concerned I agree that for the reasons given by Prior and Olsson JJ it should be dismissed.
JUDGE2 PRIOR J The appellant successfully sued the respondent for damages. In this appeal the amount awarded for future economic loss is said to be manifestly inadequate. The respondent challenges the judgment on the ground that due inquiry and search for the identity of the vehicle causing the appellant's loss had not been made and that no notice of claim had been given as soon as reasonably practicable after it became apparent that the identity of the vehicle was not readily ascertainable. Motor Vehicles Act, 1959, s115(1)(b),
(3) and (4).
2. On 12 September 1988, the appellant was walking through a carpark when he was struck by an unidentified motor vehicle. He sustained injury to his right knee. After the accident he developed rheumatoid arthritis in a number of his joints. Indeed, from late 1989 to late 1992 he was so disabled from that condition that he was unable to work. At the date of trial, the appellant was 35 years of age. He was then working as a spray painter at General Motors Holdens, having previously worked in various low-skilled jobs from when he left school at the age of 15. In his judgment, a Master of this Court referred to the evidence of three rheumatologists, saying that there was no material difference between them when there evidence was considered as a whole. The Master said:-
"... Their findings and conclusions are important,
particularly on the question of damage for economic loss,
both in the past and in the future. It is clear from their
evidence that for significant periods prior to trial the
plaintiff was disabled by the rheumatoid arthritis to such
an extent that, even if he had not sustained the knee
injury, he would not have been able to work. Their evidence
is also relevant to future economic loss because of the
opinions expressed as to the likelihood or otherwise of the
rheumatoid arthritis recurring. On the basis of the
evidence of the plaintiff and his wife, to
which I will shortly refer, and the opinions expressed by
the rheumatologists, I find that from late 1989 until late
1992 the plaintiff was disabled by the onset and continuance
of the condition of rheumatoid arthritis ... As to the
period from October 1992 to the date of trial, I find that
the plaintiff's rheumatoid arthritis has been quiescent and
that any working incapacity that he has is attributable to
the injury to his right knee ... I find that the plaintiff
has been precluded from carrying out other than light work
of a sedentary nature from October 1992 to the date of trial
as a result of disabilities caused to his right knee by the
injury experienced by him in September 1988. However, I
must take into account that it is probable that it would
have taken the plaintiff some time before he could re-enter
the work force after October 1992 and it is possible that he
may not have been able to obtain continuous employment
between October 1992 and the date of trial. As to the
future, I find, on the balance of probabilities, that, as a
result of the disabilities experienced by the plaintiff
which are referrable to the condition of his right knee, he
is permanently precluded from other than light sedentary
work. His lack of education and the difficulties he
experienced at school leads me to believe that he will not
in the future be able to obtain work of a clerical nature.
He is therefore limited to light work of an unskilled nature
for the remainder of his working life. No evidence was
given as to when the plaintiff would have ceased work had he
not been injured or suffered rheumatoid arthritis, but I
infer that he would have worked until at least 60 years of
age. I draw that inference from the fact that the
plaintiff's work record prior to the incident of September
1988 disclosed a history of intermittent work, although I
accept the plaintiff's evidence that, having obtained
qualification as a spray painter, he enjoyed such work at
GMH. I therefore consider that although his previous work
history may have been spasmodic, it is probable that he
would have continued in full-time employment for the
remainder of his working life, subject of course to the
possibility of retrenchment. I must also take into account
when considering future economic loss, the fact that the
plaintiff has not been cured of the condition of rheumatoid
arthritis. It is abundantly clear from all of the medical
evidence that it may recur in the future. Each of the
rheumatologists gave evidence in this regard and, in
accepting their evidence, I find that it has been
established on the balance of probabilities that it is
possible that the rheumatoid arthritis may recur within the
next 5 years and that it is probable that the condition will
recur 5 or 10 years from now. If there is a recurrence of
the plaintiff's condition, I find that it will be at least
as disabling as it was when it first occurred. There is a
reasonable possibility that the condition will be brought
under control by medication but there is the possibility
that in later years it may occur again. I find that if and
to the extent that the condition occurs in the future, it
will disable the plaintiff so that he will be unable to
carry out other than light sedentary work independently of
any remaining disability in his right knee caused by the
trauma of September 1988."
3. After reviewing evidence from the appellant and his wife the Master said:-
"1. In relation to past loss of earning capacity -
(a). The fact that the plaintiff has experienced pain and
disability in his right knee from the date of accident to
the date of trial independently of the onset of the
condition of rheumatoid arthritis;
(b) That for the 3 year period referred to the condition of
rheumatoid arthritis constituted the main disabling factor
and that the consequences of that disease are not
compensable;
(c) That since about October 1992 the rheumatoid arthritis
has been in remission and that consequently the pain and
disability experienced by the plaintiff is referrable to the
knee injury.
2. In relation to future loss of earning capacity -
(a) That there is a reasonable prospect that the rheumatoid
arthritis will remain acquiescent for up to 5 years;
(b) That it is likely that 5 to 10 years from now the
rheumatoid arthritis will recur and be disabling beyond the
disablement solely attributable to the injury to the right
knee."
4. In the assessment of past economic loss the Master agreed with the submission that he had to take into account that the appellant was disabled for a period of three years because of the onset and continuation of rheumatoid arthritis. Making allowances for other factors, he awarded $40,000 for past loss of earning capacity and then said:-
"As to future loss of earning capacity, the plaintiff
submitted that I should apply a multiplier of 799 to the
current net weekly loss of earnings sustained by the
plaintiff ($464.15) and then allow for contingencies.
Whilst in many cases that approach produces a reasonably
satisfactory result, it is of limited assistance in this
matter. There are too many imponderables. The multiplier
of 799 is based on a calculation to age 65 whereas I think
that the plaintiff would probably not have worked beyond
aged 60. The plaintiff suffers from rheumatoid arthritis
which is presently quiescent. It may occur within the next
5 years and, in my view, on the medical evidence will
probably recur within the next 5 to 10 5 years. When it
does recur it will be as at least disabling as it was
initially. That means that the plaintiff is subject to
periods of unemployment in the future of uncertain but
possibly of a long duration due to causes not relevant to
the injury sustained in September 1988. I have earlier set
out my findings and the reasons for same in relation to the
factors to be taken into account when assessing future loss.
The plaintiff also has a residual working capacity but I do
not consider it to be of much significance. He would not be
able to do work of a clerical nature and, on an open labour
market, it is unlikely that he would in the future obtain
work of a light unskilled nature. In all the circumstances
I consider that damages for future loss of earning capacity
should be assessed in the sum of $80,000."
5. The appellant submits that the assessment of $80,000 represents approximately three years and four months loss of earnings on the appellant's net weekly economic loss at the time of the trial and is manifestly inadequate and an entirely erroneous assessment of damages for future economic loss. The respondent submitted that in all the circumstances the assessment was not manifestly inadequate. It was submitted that there was sufficient evidence for the Master to find the appellant's condition of rheumatoid arthritis was unrelated to the injury suffered by the appellant arising from the accident and that the condition may recur in five years and probably would recur in five to ten years, disabling the appellant so that he would not be able to carry out work other than light sedentary work independently of any remaining disability in his right knee due to the accident. It was put that the rheumatoid arthritis was a supervening condition for which the respondent was not liable to compensate the appellant. Jobling v Associated Dairies Ltd
(1982) AC 794 was relied upon. In that case a supervening illness overtook the plaintiff. It was in no way connected with an accident for which the plaintiff claimed damages. The principle of that case was properly applied by the Master with respect to the claim for past economic loss. It does not seem to me to be as directly applicable with respect to the future. The respondent's liability in this case:-
"Is confined to the effects or the injuries sustained in the
accident; such liability does not extend to disabilities
which result from a pre-existing condition alone, nor to
disabilities which would supervene irrespective of the
occurrence of the accident. In particular, the (respondent)
is not liable for any impairment of working capacity which
... would supervene irrespective of the occurrence of the
accident." King CJ in Walker v Briddon (unreported Full
Court 1/9/86).
6. In the passages quoted from the Master's judgment, the Master has accepted and acted upon evidence from Dr Begg which, consistent with the demands of Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, established that there was a high degree of probability that within five to ten years the appellant would have lost a capacity to earn because of the rheumatoid arthritis irrespective of the injuries he sustained in the car accident. Upon that basis the assessment of the Master was correct and the objection taken in this appeal incorrect. The amount assessed seems adequate, certainly not manifestly inadequate calling for interference in this Court.
7. There remains the issue raised in the cross appeal. The evidence was that after the accident the appellant went to the carpark on several occasions to see if he could identify the vehicle. He had also asked a friend, Mr Dixon, to keep a look out for the car. Dixon was waiting for the appellant when the accident occurred. He gave evidence of seeing a car but not being able to take it's number. The appellant reported the incident to his employer but not to the police. Advertisements were placed in newspapers in September 1989, some four months after solicitors were instructed in relation to the incident. It was argued before the Master and submitted again on the cross appeal, that the appellant had failed to make due inquiry and search given that there was no report of the incident to a security officer at the carpark on the night of the injury. As to this, the Master said:-
"... There is a difference between reporting to a third
party that an incident has taken place and making inquiries
about the identity of a vehicle. Unless it was clear that
by reporting the incidents to GMH security, that might
assist with ascertaining the identity of the vehicle, there
is no point in making such a report for the purposes of due
search and inquiry under section 115. In this matter the
accident was reported by the plaintiff to his employer but
no investigation was undertaken or, if it was, it did not
produce any results."
8. Another matter relied upon was that the appellant did not pursue other possible witnesses. As to this, the Master said that even if an attempt had been made to locate others in the carpark on the night in question, it would not have led to the obtaining of relevant information. With respect to the failure to report the incident to the police, the Master was of the opinion that even if the matter had been reported to the police, any inquiries by the police would not have obtained relevant information. The contention that due search and inquiry was not made was rejected. The Master said:-
"... Apart from knowing the make and approximate model of
the vehicle, the plaintiff was, to borrow from Bray CJ in
Plesa v Griffiths, without a clue and any inquiry made
beyond that which was actually carried out would have been
futile or ritualistic. I find as a fact that the plaintiff
made due search and inquiry."
9. Counsel do not challenge the propositions summarised by the present Chief Justice in Plesa v Griffiths (1977) 15 SASR at 442 and 443. Within those propositions, the present Chief Justice points out that whether due inquiry and search has occurred is a question of fact, an affirmative finding being one which a Court of Appeal will rarely be able to set aside. I think the plaintiff's inquiries can be described as fairly bare. Nonetheless, they seem, consistent with the observations of Bray CJ in Plesa's case to satisfy the statute's demand given the findings of the Master. It is also complained that the notice of the appellant's claim was not given to the Nominal Defendant as soon as reasonably practicable after it became apparent that the identity of the vehicle was not readily ascertainable. The justice of the case required the Court to dismiss the action, the Nominal Defendant having been prejudiced in the conduct of his defence. On the appellant's own case, he ascertained that he would be unable to identify the driver of the car by the time of his first arthroscopy in October 1988. Notice was not given until eight months later. The Master was not satisfied on the balance of probabilities that the Nominal Defendant had been prejudiced in the conduct of his defence because of the failure. He said:-
"... In my view the probabilities are that even if the
plaintiff had reported the incident to the Nominal Defendant
the day after it occurred, the defendant would not have been
able to obtain information which would have altered the
course of its defence to these proceedings. There were no
eye witnesses to the incident. The plaintiff and Mr. Dixon
were unable to identify the vehicle and I consider that any
step that the defendant may have taken, even if notified on
the day after the accident, would probably have produced the
same negative result obtained by the plaintiff."
10. Again, I see no proper basis upon which this Court can or should interfere with that finding of the Master. Both the appeal and cross appeal should be dismissed.
JUDGE3 OLSSON J The Full Court has before it an appeal and cross appeal in relation to a judgment for damages entered by a Master of this Court, on 19 October 1993, in favour of a plaintiff. I shall refer to the plaintiff at first instance as the appellant and the defendant as the respondent. The appellant complains that the quantum of damages awarded for future economic loss is manifestly inadequate, whilst the respondent asserts that the learned Master fell into error in declining to dismiss the action, by virtue of an alleged failure of the appellant to satisfy the requirements of section 115 of the Motor Vehicles Act, 1959 ("the Act").
2. The appellant brought the action against the respondent as the Nominal Defendant under the Act, in relation to injuries allegedly sustained by him when, at about 11.55 pm on 12 September 1988, he was a pedestrian in a car park situated within the premises of General Motors Holdens Automotive Limited ("GMH") and he was struck by a dark brown HJ Holden motor vehicle. It is not disputed that the appellant was so struck and that he sustained significant personal injury.
3. It was common ground that, at the relevant time, the appellant was employed by GMH as a spray painter at its Elizabeth plant. He was on the afternoon shift, which finished at about 11.40 pm. He had been driven to work by a fellow employee, Adrian Dixon, and was to return home with him.
4. On arrival prior to the commencement of the shift Dixon's vehicle had been parked in the southern car park of the GMH complex, portion of which was set aside for afternoon shift workers. A gate on the northern boundary of the car park afforded pedestrian access into the plant.
5. At the conclusion of his shift on 12 September 1988, the appellant walked back through that gate and turned to his left into an open "aisleway" in the car park, on either side of which were parked cars. He was making his way back to where Dixon's car had been parked.
6. As he was walking in an easterly direction, he noticed a car ahead of him and to his right, with its headlights on and engine running. This car ("the unidentified car") was parked with its rear away from the aisle, so that it could drive straight forward, out of its parked position.
7. Whilst about one vehicle distant from this car, the appellant observed that the interior light was on and that there were a number of persons inside of it. He noted an ornamental device suspended from the internal rear vision mirror fitting. He thought that the person in the driver's seat might be of Italian extraction, although the learned Master was not prepared to accept that as a valid proposition. When he first saw the driver, the latter appeared to be kneeling on the front seat and twisted around, speaking with the rear passengers. He seemed to be a middle aged person with light or grey hair.
8. The appellant continued to walk forward at a normal pace. When he was almost past the unidentified vehicle he felt an impact to his right knee and was spun around in a clockwise direction. He experienced a great deal of pain and bent over and gripped his knee with both hands. Whilst doing so he looked up and saw the unidentified car travelling in a westerly direction along the aisle. That vehicle did not stop and, at one stage, the appellant noted, through its rear window, that the front passenger in it had turned around in the front seat and was pointing back at him.
9. Although the appellant attempted to read the registration number on it, the unidentified car was then too far away from him to be able to do so. At the time the appellant was handicapped by severe pain. All that he, effectively, could do was to observe the car exit a gateway on to John Rice Avenue.
10. There were no known independent eyewitnesses of the impact. At the time of it the appellant swore loudly and Adrian Dixon, who was, by then, actually at his car, heard a noise which could well have been the appellant's exclamation. After he lost sight of the unidentified car the appellant managed, with assistance, to walk to Dixon's vehicle, further to the east.
11. Dixon was called as a witness. He said that he got to his vehicle before the appellant. He was sitting in it when he heard a noise to his right. On looking up he saw the appellant bent over with his hands clutching his right knee. At about the same time Dixon saw what must have been the unidentified car about 200 metres west of his position. He could not read its registration number at that distance. Dixon thought that the car was gold or brown in colour and an HJ or HX model.
12. Dixon got out of his vehicle and walked forward to assist the appellant. As he did so he saw the unidentified vehicle proceed through the car park, although, by then, there was a considerable movement of vehicles.
13. When he joined the appellant, Dixon was told by him what had happened. There was some debate as to the model of the vehicle, but Dixon insisted that it was an HJ model.
14. The learned Master accepted the narratives as I have above outlined them.
15. Another employee, one McAteer, told the learned Master that he had concluded his duties and walked into the car park, at a time which must have been immediately after the impact. He was approached by the appellant and Dixon, who asked if he had seen what had occurred. He replied that he had not seen anything of it.
16. On the facts as I have outlined them, the learned Master had no hesitation in finding negligence proved against the driver of the unidentified car. Further, he found no basis for concluding that the appellant had been guilty of contributory negligence. He felt that his actions had been reasonable and prudent in all of the circumstances.
17. Following the accident the appellant experienced significant symptomatology with his right knee, for which he sought and obtained medical assistance. The learned Master carefully analysed all of the evidence on this score in his reasons for decision and there is no need to retrace the same ground in detail.
18. The task of the learned Master, in proceeding to an assessment, was complicated by medical evidence of a history of the appellant having exhibited rheumatoid arthritis, not attributable to the impact, in late 1989. That was successfully treated with so called "gold" medication and was quiescent at time of trial. He had, however, been disabled by the arthritis from late 1989 to late 1992 in varying degrees, but to an extent that he would have been unable to continue in his employment during that period.
19. Leaving aside for the moment the significance of the arthritis, the learned Master was confronted with a lack of unanimity of the expert medical witnesses as to the precise nature of the initial injury to the appellant's right knee and its sequelae. Clearly, in October 1988, an arthroscopic examination revealed defects of the medial femoral condyle and the articular surface of the patella, which seems to have led to the development of a secondary synovitis. Whatever may have been the true technical situation, the learned Master summed up the practical situation in these terms (Appeal Book p623):-
"On the day following the incident he did not go to work
because of pain and swelling in his right knee. As
mentioned previously he saw his general practitioner on 14th
September 1988. He remained off work for a number of months
because of pain and disability in the right knee. He said
that the level of pain became worse over a period of time
after the incident and the swelling increased with prolonged
standing and bending. He had to take medication to relieve
the pain. Several months after the incident he attempted to
resume work but was not able to last more than 1 day. He
has not worked since. He said that the locking sensation in
his knee had occurred by October 1988 and that by then the
pain in his right knee was constant. He could only walk
with difficulty and his knee was starting to give way. He
referred in evidence to each of the 3 arthroscopies
undertaken. He also said that he underwent physiotherapy
treatment from time to time but only temporary relief was
obtained. He saw a rehabilitation counsellor, Ms V.
Antoniadis, with a view to returning to the workforce. His
attempts in that regard were unsuccessful. I accept that
the plaintiff generally wanted to re-enter the workforce,
but by a combination of the injury to his right knee and the
later onset of rheumatoid arthritis he has been unable to do
so."
20. In the course of the trial the learned Master received a good deal of evidence bearing on the arthritis which manifested itself post-accident and the significance of that situation, from the point of view of assessing quantum of damages.
21. It became common ground that the onset of this condition in late 1989 could not, in medical terms, be attributed to the accident and was of independent origin.
22. As to the issue of past loss of economic capacity the Master highlighted these factors:-
- that the plaintiff has experienced pain and disability in
his right knee from the date of accident to the date of
trial, independently of the onset of the condition of
rheumatoid arthritis;
- that, for the 3 year period referred to, the condition of
rheumatoid arthritis constituted the main disabling factor
and that the consequences of that disease are not
compensable;
- that, since about October 1992, the rheumatoid arthritis
has been in remission and that, consequently, the pain and
disability experienced by the plaintiff is referrable to the
knee injury. On the other hand, he felt that the
probability that the arthritis would recur within 5-10 years
was important as to the future, and that, if it did, it
would probably be disabling beyond the disablement solely
attributable to the injury to the right knee.
23. Bearing those features in mind, the learned Master reasoned in this fashion (Appeal Book pp627-8):-
"As to future loss of earning capacity, the plaintiff
submitted that I should apply a multiplier of 799 to the
current net weekly loss of earnings sustained by the
plaintiff ($464.15) and then allow for contingencies.
Whilst in many cases that approach produces a reasonably
satisfactory result, it is of limited assistance in this
matter. There are too many imponderables. The multiplier
of 799 is based on a calculation to age 65 whereas I think
that the plaintiff would probably not have worked beyond
aged 60. The plaintiff suffers from rheumatoid arthritis
which is presently quiescent. It may occur within the next
5 years and, in my view, on the medical evidence will
probably recur within the next 5 to 10 years. When it does
recur it will be as at least disabling as it was initially.
That means that the plaintiff is subject to periods of
unemployment in the future of uncertain but possibly of a
long duration due to causes not relevant to the injury
sustained in September 1988. I have earlier set out my
findings and the reasons for same in relation to the factors
to be taken into account when assessing future loss. The
plaintiff also has a residual working capacity but I do not
consider it to be of much significance. He would not be
able to do work of a clerical nature and, on an open labour
market, it is unlikely that he would in the future obtain
work of a light unskilled nature. In all the circumstances
I consider that damages for future loss of earning capacity
should be assessed in the sum of $80,000."
24. The appellant complains that this is manifestly inadequate and reflects an erroneous appreciation of the situation clearly established by the evidence which was accepted by him. In particular Mr Niarchos, of counsel for the appellant, drew attention to these features of the evidence:- . the plaintiff's earning capacity has been reduced by his injuries (suffered in the accident) and that any residual working capacity is not of much significance;
- he is permanently precluded from other than light
sedentary work for the remainder of his working life by
reason of his injuries;
- he could not do work of a clerical nature and, on the open
labour market, it is unlikely that he would, in the future,
obtain work of a light unskilled nature - being the only
employment he could carry out by reason of his injuries;
- he was aged 35 years at trial and would have worked until
at least 60 years of age;
- his nett weekly loss of earnings was $464.15 per week; .
the condition of rheumatoid arthritis suffered by him
following the accident was effectively being treated at the
time of trial and there is a reasonable prospect of its
remaining quiescent for up to five years, given that it is
likely to recur within the next five to ten years;
- there is a reasonable probability that, if and when the
rheumatoid arthritis recurs, it will again be brought under
control by medication, but there is a possibility it may
occur again;
- if and to the extent the rheumatoid arthritis recurs, it
will, until controlled, disable the plaintiff for other than
light sedentary work. Mr Niarchos pointed to the evidence
of Dr Cleland, the treating rheumatologist, to the effect
that, whilst the arthritis could well recur after 5-10
years, it may not do so at all; and that there are grounds
for guarded optimism that the appellant could remain in good
health for a reasonable period.
25. Moreover Dr Cleland deposed that there are "a range of novel treatments under investigation or on the horizon" which may well have an important impact upon future treatment of this type of condition. In any event, he said, it is not unusual to be able to re-achieve control by re-implementing the original regime of former successful drug control.
26. Dr Begg, the rheumatologist called by the respondent, did not really dissent from such propositions. He conceded that it is quite possible that any recurring arthritis will continue to respond to the "gold" medication indefinitely over many years, although, in general terms, he felt that the appellant's prognosis had to be regarded as poor.
27. Some dispute arose on the hearing of the appeal as to what the learned Master was seeking to convey in his reasons for decision, but Mr Niarchos strongly contended that, to the extent that he is to be taken to imply that, within 5-10 years, the disabling symptoms arising from any recurrence of arthritis will necessarily and permanently subsume the sequelae of the accident, such a proposition is manifestly in discord with the clear medical evidence. In my view this submission is plainly correct, although, read as a whole, I do not take the reasons of the learned Master to purport to accept a proposition as absolute as that criticised by Mr Niarchos. At page 621 of the Appeal Book the learned Master is recorded as saying:-
"... If there is a recurrence of the plaintiff's condition,
I find that it will be at least as disabling as it was when
it first occurred. There is a reasonable possibility that
the condition will be brought under control by medication
but there is the possibility that in later years it may
occur again. I find that if and to the extent that the
condition occurs in the future, it will disable the
plaintiff so that he will be unable to carry out other than
light sedentary work independently of any remaining
disability in his right knee cased by the trauma of
September 1988."
28. He clearly acted on the basis of only a contingency that a recurrence would occur within the timeframe stipulated.
29. Mr Niarchos sought, by reference to relevant multiplier tables, to demonstrate that an allowance of $80,000 for future economic loss represents such a massive discount from any baseline figure as to potential loss flowing from the appellant's injury that it is patently inadequate, particularly bearing in mind the young age of the appellant and his actual rate of loss sustained up to trial.
30. In assessing the potential interaction between the sequelae of the appellant's injuries and the impact of any supervening factors such as the arthritis, it is important to bear firmly in mind the concept emerging from Jobling v Associated Dairies Limited (1982) AC 794. This is, perhaps, expressed most clearly in Walker v Briddon (King CJ, 1 September 1986, unreported) given that the learned Chief Justice, as a member of the Full Court, was there speaking of a pre-existing condition. Paraphrasing the dictum of King CJ to render it applicable to the case at bar, it may be said that the liability of the respondent is confined to the effects of the injury sustained in the relevant accident. Such liability does not extend to disabilities which result from any supervening, independent cause alone - to disabilities which would supervene irrespective of the occurrence of the accident. In particular the respondent is not liable for any impairment of working capacity which results solely from a causative source which would supervene, irrespective of the accident.
31. It is, of course, trite to say that the party who sets out to assert such a practical likely supervening situation, at all times bears the onus of proving the nature and likely extent of any supervening, independent condition.
32. In the present case the learned Master was plainly faced with a most difficult task, in which an empirical approach was not feasible - due to the contingencies which, necessarily, had to be taken into account. Plainly the broad axe had to be wielded. There is no doubt that, in a situation such as this, there is ample scope for several minds reasonably to differ as to the appropriate end result.
33. However, I am heavily influenced by the young age of the appellant and the very substantial impact which periods of incapacity directly due to the sequelae of the injury must necessarily have upon him in empirical terms. Even after making generous allowance against the appellant for adverse, non compensable contingencies, I have considerable difficulty in accepting that $80,000 adequately measures his relevant loss of earning capacity. I would allow the appeal for the purpose of increasing that sum to $120,000.
34. That only leaves for consideration the cross appeal mounted by the respondent.
35. Mr Robertson, of counsel for the respondent, contended that the learned Master fell into error in concluding that it was not appropriate to dismiss the action, by virtue of alleged failures on the part of the appellant to satisfy the requirements of section 115 of the Act.
36. First, he submitted, the evidence led at trial fell far short of establishing that the appellant had made due inquiry and search to ascertain the identity of the driver of the unidentified car.
37. The criteria to be applied are, of course, those which are conveniently summarised in the judgment of King J (as he then was) in Plesa v Griffiths
(1977) 15 SASR 434 at 442-3. The appellant was required to demonstrate that what was done was reasonable in, or appropriate to, the relevant circumstances. He was not required to embark upon mere ritual steps likely to have been futile.
38. In the course of his reasons for decision on this aspect, written in the context that the appellant was significantly disabled immediately following the accident, the learned Master commented (at Appeal Book p631-3):-
"After the accident the plaintiff went to the car park on
several occasions to see if he could identify the vehicle.
He had also asked Mr. Dixon to keep a lookout for the car.
He also reported the incident to his employer but he did not
report it to the police. The plaintiff instructed
solicitors in relation to the incident on 14th May 1989. It
was not until September 1989 that advertisements were placed
in the News and the Advertiser. Advertisements seeking
information were inserted in those newspapers between the
1st and 6th September 1989 but there was no response. Some
inquiry was made of a Mr. Sharp, a shop steward at the GMH
plant. Mr. Robertson submitted that the plaintiff should
have reported the incident to any security officer employed
by GMH on the night of the injury. I do not accept this
contention. There is a difference between reporting to a
third party that an incident has taken place and making
inquiries about the identity of a vehicle. Unless it was
clear that by reporting the incidents to GMH security, that
might assist with ascertaining the identity of the vehicle,
there is no point in making such a report for the purposes
of due search and inquiry under section 115. In this matter
the accident was reported by the plaintiff to his employer
but no investigation was undertaken or, if it was, it did
not produce any results. It was contended by Mr. Robertson
that the plaintiff should have "followed up Sharp" and
provided his name to the defendant. It is clear from the
evidence adduced at trial that nobody from GMH at any stage
ever ascertained the identity of the vehicle or even the
driver of the vehicle. Following up Mr. Sharp would not
have made any difference. As to the provision of his name
to the defendant, that aspect is not relevant to the
question of due search and inquiry. The same complaint was
made in relation to Mr. McAteer. For the same reason any
failure on the part of the plaintiff to obtain information
from Mr. McAteer does not form a basis for the suggestion
that there has not been due search and inquiry. Mr.
McAteer did not see the incident. He came upon the
plaintiff and Mr. Dixon after the incident. Mr. Robertson
submitted that the plaintiff should have obtained more
information from Mr. Dixon. I cannot see how the plaintiff
failed to make relevant inquiries of Mr. Dixon. The
plaintiff was aware that Mr. Dixon did not see the incident
but merely saw the car moving away from the point where the
collision occurred. As to the complaint that the plaintiff
did not sufficiently instruct Dixon in relation to keeping a
look out for the car because he failed to inform Mr. Dixon
that there was an ornament hanging from the rear-view mirror
of the car, I do not consider that even if Mr. Dixon had
been advised of this fact it would have made any difference
to his ability to identify the car if he had seen it at a
later stage. It was contended that the plaintiff should
have pursued other possible witnesses being workers leaving
the car park at the end of the afternoon shift on the night
in question. It is clear from the evidence of both the
plaintiff and Mr. Dixon, which was to some extent
corroborated by the evidence of Mr. McAteer, that there was
nobody else in the vicinity when the incident occurred and
it is unlikely that anybody else saw the incident.
Accordingly I do not consider that even if attempt had been
made to locate others in the car park on the night in
question, it would have lead to the obtaining of relevant
information. Mr. Robertson submitted that the plaintiff
should have reported the incident to the police. As I have
said, a report in itself is not an element of due inquiry
and search. Whilst it may be thought that if a report had
been made to the police, the police might come up with
information helping to identify the vehicle, there was, in
my view, no realistic basis for making such an assumption in
the circumstances of this case. There were no witnesses to
the incident. The only persons who might be assumed to have
made some attempt to identify the vehicle by reference to
its registration number were the plaintiff and Mr. Dixon
and neither of them was able to do so. Anybody else in the
car park who saw the vehicle would not have known that it
had been involved in a collision with a pedestrian and
therefore would have no cause to attempt to take the
registration number of the vehicle. Consequently I do not
think that even if the matter had been reported to the
police any inquiries by the police would have obtained
relevant information. I reject the defendant's contention
that due search and inquiry was not made. Apart from
knowing the make and approximate model of the vehicle, the
plaintiff was, to borrow from Bray CJ in Plesa v.
Griffiths, without a clue and any inquiry made beyond that
which was actually carried out would have been futile or
ritualistic. I find as a fact that the plaintiff made due
search and inquiry."
39. In reality Mr Robertson merely sought to re-agitate various of these factual issues before the Full Court and to stress that, in his submission, the appellant and/or his advisors were less than timely and diligent in both pursuing those lines of endeavour which suggested themselves and of notifying the full known facts to the Nominal Defendant.
40. The short answers to those propositions are those which the learned Master gave in the final paragraph cited above. There is, in my opinion, no substance in the criticisms made - which tend to focus on the shadow and not the substance, in an unrealistic fashion.
41. Secondly, it was argued that the appellant had failed to give notice in writing of the claim to the Nominal Defendant as soon as reasonably practical after it became apparent that the identity of the driver of the unidentified car was not readily ascertainable.
42. In this regard due allowance needed to be made for the effect of the injury on the appellant, the manner in which he, personally, could go about any inquiries and the need for his solicitors to explore any lines of investigation which fairly arose. It may be that the notice could, with due diligence, reasonably have been given at an earlier time, but this situation avails the respondent nothing unless it can discharge its onus of proving resultant prejudice.
43. Having considered the totality of the evidence before him the learned Master was constrained to say (at Appeal Book p634):-
"... It is further contended that the defendant has been
prejudiced by such failure (ie to give notice) and that the
claim ought to be dismissed. I disagree with that
submission. Whether or not the plaintiff failed to give
notice in accordance with section 115(3), I am not satisfied
on the balance of probabilities that the defendant has been
prejudiced in the conduct of his defence because of that
failure. In my view the probabilities are that even if the
plaintiff had reported the incident to the Nominal Defendant
the day after it occurred, the defendant would not have been
able to obtain information which would have altered the
course of its defence to these proceedings. There were no
eye witnesses to the incident. The plaintiff and Mr. Dixon
were unable to identify the vehicle and I consider that any
step that the defendant may have taken, even if notified on
the day after the accident, would probably have produced the
same negative result obtained by the plaintiff. I therefore
do not consider that the action should be dismissed pursuant
to the provisions of section 115(4) of the Motor Vehicles
Act."
44. That conclusion was fairly open to him on the facts and I can see no reason to quarrel with his conclusion. This is the more so as, on the evidence of its own witness, Ms Reynolds, the Nominal Defendant apparently took no active role at all and seems to have done little more than act as a recipient letter box for correspondence. It ill becomes it now to suggest that it has, in some way, been prejudiced, quite apart from the point made by the learned Master.
45. I would unhesitatingly dismiss the cross appeal.
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