Jayne Marie Richards v Brenton Howard Taylor No. SCGRG 95/862 Judgment No. 5255 Number of Pages 16 Damages

[1995] SASC 5255

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS
Damages - measure and remoteness of damages in actions for tort - measure of damages - personal injuries - general principles

Appeal as to quantum of damages - future economic loss should be calculated by way of a broad axe assessment taking into account all necessary factors, including vicissitudes of life - no basis for 20% reduction of damages for non economic loss due to pre-existing injuries - allowance of 10% substituted.

Cross appeal against finding of no contributory negligence - proposition that no motor vehicle collision occurs without some degree of contributory negligence on part of each driver unsustainable - law focuses on reasonable, prudent and practical conduct in the circumstances - cross appeal dismissed as to contributory negligence.

"Motor Vehicle Law South Australia" by Bollen J; Medlin v SGIC (1995) 69 ALJR 118; Malec v J C Hutton Proprietary Limited (1989-90) 169 CLR 638, applied.

Stoeckel v Harpas (1971) 1 SASR 172; Antonow v Leane (1988-90) 53 SASR 60; Walton v Rowbottom (von Doussa J,17 September 1986, unreported); Kleeman v Walker (1934) SASR 199; MTT v Ashby (1951) SASR 61; Terrington v Bede
(1982)100 LSJS 265; Wilson v Peisley (1975) 7 ALR 571, discussed.

HRNG ADELAIDE, 17 August 1995 #DATE 14:9:1995 #ADD 28:11:1995

Counsel for appellant:     Mr F Difazio

Solicitors for appellant:    Moloney and Partners

Counsel for respondent:     Mr M Livesey

Solicitors for respondent: Ward and Partners

ORDER
Appeal allowed.

JUDGE1 OLSSON J I have before me an appeal and cross appeal in relation to a judgment entered by a stipendiary magistrate sitting in the Civil Division of the Magistrates Court. Collectively, the notices of appeal raise a series of issues.

2. The judgment sought to be impugned was the final outcome of a claim prosecuted by the appellant against the respondent, seeking an award of damages for what were said to be the sequelae of a motor vehicle accident which occurred on Main North Road, Prospect on 19 August 1988.

3. On that occasion, at about 1.00 pm, the appellant was driving her Datsun Bluebird motor car in a northerly direction along Main North Road. Having stopped at the traffic lights at the junction of Main North Road and Nottage Terrace, she continued on in the lane nearest the median strip.

4. In the general location in which the accident occurred there were two through, northbound traffic lanes (to which I shall refer as the left lane and right lane respectively) and a third so-called "parking" lane adjacent to the kerb.

5. The learned magistrate found that, whilst the appellant was proceeding along in the right hand lane, she observed a vehicle ahead of her, in the parking lane. This had its right turn indicator operating and had partially moved out from the parking lane. At the time the left hand lane was clear of traffic. The learned magistrate also accepted that, when the appellant first observed the other vehicle (of which the respondent proved to be the driver), it was actually stationary, albeit in the position already indicated.

6. The evidence established that, as the appellant's vehicle closed up on the location of the respondent's vehicle at a then constant speed of about 60 kph, the latter suddenly pulled out to its right across the clear left lane and into the right lane - with the result that the front offside corner of that vehicle impacted with the front nearside corner of the appellant's vehicle. So sudden was the movement that the appellant had no memory of having any opportunity of even attempting to apply her brakes.

7. The impact caused the appellant's vehicle to be pushed up on to the raised median strip. In giving evidence the appellant described the situation in these terms:-
    Q. Can you describe the impact; was it a gentle bang or a
    big thump.

A. A thump.

Q. Sorry.

A. It was a thump, a bang.

Q. When that happened, did the two vehicles stop or did they
    keep going.

A. No, they - we collided that first time and then he - can
    I use my hands, is that all right?

Q. Yes.

A. And then his car came around and we hit side-to-side, my
    left, his right, and it seemed to go up a little, the car
    seemed to go - or mine, at least, seemed to go up a little
    bit, and then the next thing I sort of jumped and I was
    sitting on two wheels on the median strip - there was a gap
    in the median strip where my car landed, so the back of my
    car was in the gap and the front part was on the median
    strip.

Q. What do you mean when you say that the back of your car
    was in the gap.

A. Sorry, can you repeat the question?

Q. What do you mean when you said that the back of your car
    was in the gap.

A. There was a - where the collision took place, there was a
    gap in the median strip where he was going to do a U-turn to
    go back to town and that's where the collision happened."

8. As I understand the evidence, there was a raised median strip area along the centre of Main North Road, separating the north and south bound carriageways. However, at some points, there were gaps in the median strip at major junctions or intersections and/or elsewhere to allow vehicular access across one carriageway to another. In the instant case I take the evidence to indicate that, when parked, the respondent's vehicle was virtually adjacent to, or only fractionally to the south of, the commencement of one such gap.

9. The learned magistrate had this to say concerning the actions of the respondent:-
    "... The other driver after the accident said that he was
    sorry he had not seen her. He said that he was doing a
    U-turn to pick up his wife in town. Mr Taylor, the other
    driver, gave evidence and his version was not substantially
    different. He was executing a U-turn. He looked back and
    thought that no cars were coming. He saw stationary cars at
    the lights. He pulled out he would say into the left hand
    lane but then had to stop to wait for a vehicle coming from
    the opposite direction to clear. Once it cleared he pulled
    out to execute his U-turn and then at the last moment before
    the accident saw the other vehicle alongside him. Clearly
    the overwhelming fault is on Mr Taylor for failing to check
    behind him before he recommenced his U-turn. Although he
    had moved out to some extent and had his right indicator on,
    there was no reason for Mrs Richards, the plaintiff, to
    expect that this stationary vehicle apparently pulling out
    from a parked position was intending to do a U-turn rather
    than intending to pull into the left hand lane and go
    straight ahead. It is clear that she was not inattentive in
    that she noticed the vehicle in that position. Once he
    commenced his U-turn, having failed to take account of her
    approach, it was too late for her to avoid the accident and
    there was nowhere for her to go. Even had she been
    sufficiently alert to brake and swerve she would not have
    been able to avoid the accident. There is no reason to
    suggest that her speed was excessive or her attention
    defective. I simply can find no fault on her part. I
    apportion liability 100 percent in favour of the plaintiff
    against the defendant who was executing the U-turn."

10. Mr Livesey, of counsel for the respondent, did not join issue with the findings as to what actually occurred. He did, however, criticize the conclusion that no fault ought to be found with the appellant.

11. As to this he invited attention to the well known cases of Stoeckel v Harpas (1971) 1 SASR 172 and Antonow v Leane (1988-90) 53 SASR 60. He also drew comfort from a dictum in Walton v Rowbottom (von Doussa J, 17 September 1986, unreported) to the effect that:-
    "Drivers must guard against all reasonably foreseeable
    dangers. Prominent amongst the foreseeable risks which
    drivers must have in mind is the one that other road users
    may be careless."

12. He went on to argue that, impliedly, these authorities have superseded, if not overruled, what was said in Kleeman v Walker (1934) SASR 199 and MTT v Ashby (1951) SASR 61.

13. In my opinion this is not the situation. Moreover, none of those authorities purports to erect a rigid rule of law. All of them merely exhibit statements of practical common sense and expectation in the context of the contemporary traffic environments.

14. Bollen J, in his text "Motor Vehicle Law. South Australia", at p107, rationalises the reasoning involved in these terms:-
    "Watchfulness is required of all road users. That does not
    mean that every motorist must proceed with fearful caution
    anticipating an accident at any minute. Nor need he go so
    far as to assume that every other road user will act with
    recklessness. A mid-way course should be adopted. On the
    one hand, motorists who have no reason to suspect careless
    conduct by another may proceed with care on the assumption
    that others will behave reasonably: Kleeman v Walker (1934)
SASR 199; MTT v Ashby (1951) SASR 61. On the other hand,
    reasonably 'defensive driving' is required. The concept of
    reasonably careful driving is sometimes called defensive
    driving."

15. That summation, with which I respectfully agree, emphasizes that, at the end of the day, the court must assess the reasonableness and prudence of the conduct of a driver faced with a specific set of factual circumstances. It seems to me that, at the present time, a culture has almost developed which professes the concept that virtually no motor vehicle collision occurs without some degree of contributory negligence on the part of each driver involved. In my view this is simply not a sustainable proposition.

16. Whilst that may often be the practical situation, the fact is that an unduly rigid and narrow approach must place on drivers a quite unrealistic and unreasonable burden, to the point that an insistence on blameless driving in the absolute sense would virtually negate traffic flow along a major arterial road, for fear of an accident.

17. The law focuses not on absolute standards of care, but upon what is reasonable, prudent and practical conduct in the circumstances. This is the point sought to be made by Bollen J.

18. Approaching the fact situation in this case upon such a footing, what is the conclusion to be drawn?

19. The appellant was driving along a main arterial road, at a reasonable speed. She had a full width, vacant traffic lane between her and the respondent's vehicle. She observed him signalling in a manner which indicated that he was intending to pull out from a previously parked position. However, as she closed up on him, his vehicle, having clearly pulled out to some extent, was actually stationary.

20. It is nothing short of a counsel of perfection to suggest that she ought to have anticipated that he might dart out and attempt a U-turn right across two lanes and into the southbound carriageway.

21. Anyone with any knowledge of the locus, with its constant high volume traffic flow, would assess that such a manoeuvre was, at the best of times, fraught with danger, if not almost foolhardy. The inference which any reasonable driver would have drawn was that which the appellant drew - that the respondent was simply proposing to pull out into the left lane when it was safe to do so, or was at least waiting for traffic to clear. The fact that he did not even see the appellant approaching in the right lane speaks volumes as to the degree of his irresponsible conduct.

22. It cannot be stressed too strongly that, in the course of his judgment in Eagle v Edmonds-Wilson and Hempel (1971) 2 SASR 407 at 414, Bray CJ (with whom the other two members of the Full Court agreed) emphasised that the only qualification which ought now to be placed upon the dictum of Napier J in Kleeman v Walker (supra) is that a prudent driver must guard against the possible negligence of others "when experience shows the particular type of negligence to be common". Perhaps that qualification may, today, be regarded as a little conservative, but, certainly, none of the authorities require a driver to be either clairvoyant or to anticipate conduct which a reasonable, prudent driver would simply not envisage as being likely in a given situation.

23. In the instant case it is quite obvious that the learned magistrate felt that it was a counsel of undue perfection to expect the appellant to anticipate that the respondent may well launch into a highly dangerous manoeuvre, given the obvious inference which a reasonable observer in an approaching vehicle would have drawn at the time. He was not prepared to find the appellant negligent in the situation in which she found herself. I am unable to conclude that, in making such an assessment, the learned magistrate patently fell into error.

24. Insofar as the cross appeal seeks to challenge the finding on contributory negligence it must be dismissed.

25. I move on to the issues raised by the parties as to quantum.

26. As appears from his reasons for decision, the learned magistrate arrived at the final judgment entered against the respondent in this fashion:-
    Wrongs Act damages (scale number 9)    $ 9,630
    Damages for past economic loss         $ 7,000
    Damages for future economic loss     $20,000
   $36,630

Discount by 20% for reasons adverted to
    in judgment  $ 7,326
    Add proportion of special damages
    ($4,007.60) and interest             $ 2,768
   $30,072

27. I must confess that it is far from clear to me how the figure of $2,768 is compiled. I understand it to include an interest component of the order of $1,500 and an allowance for special damages being $4,007.60, less a discount of 20%, less credit for some moneys already paid.

28. Neither party sought to challenge the selection by the learned magistrate of the figure 9 in the scale referred to in section 35A of the Wrongs Act in relation to assessment of damages for non economic loss. However, by her appeal, the appellant contended that the evidence simply did not justify the reduction of the scale figure by 20%, or any other amount.

29. In considering that issue it is necessary to review the evidence bearing upon the injuries sustained by the appellant.

30. The learned magistrate was faced with the complication that, prior to the incident of 19 August 1988, the appellant had been involved in two other motor vehicle accidents, on 15 September 1982 and 20 July 1987 respectively. Both of these had given rise to pain and discomfort in the cervical region. In his reasons the learned magistrate dealt with those situations in some detail.

31. In essence, the evidence revealed the following situations. Accident of 15 September 1982

32. In this incident the appellant's car was hit from the rear and she suffered substantial pain in her neck and back. A doctor was consulted.

33. The appellant's memory was that, with anti inflammatory drugs, the discomfort resolved quite quickly. She attended the Europa Clinic on the day after the accident, displaying a whiplash injury at the C7, T1 level. X-rays showed no abnormality. Rest, digesic and dencorub were prescribed.

34. She was not seen again until 4 May 1987, when she complained of tenderness to the muscles from the front left to rear left of her neck, which had been present for many months. This was felt by the treating doctor to be unconnected with the 1982 injury. She underwent a course of physiotherapy over the next three weeks.

Accident of 20 July 1987 35. On this occasion the appellant was driving what was the third car involved in a three car chain collision. She attended her medical practitioner on the following day, complaining of soreness to the neck and shoulders and down to the base of the spine. Her greatest pain was on the right, rather than the left, but she had a full range of movement.

36. A treatment regime of heat, rest, anti-inflammatories and digesics was prescribed. When seen on 27 July 1987 she still complained of soreness in her back and shoulders and of experiencing headaches, although there had been some improvement. The prescribed treatment was continued.

37. As to the symptoms and physiotherapy in May 1987 the learned magistrate had this to say:-
    "... In 1987 she had physio treatment for a sore neck. Not
    surprisingly in giving her history she has related that neck
    pain in 1987 to the original 1982 accident. To her that was
    the only obvious cause. It is not possible to say with any
    certainty that that is accurate. In 1987 after receiving
    the physio treatment, she had the second accident. This
    seems to have little relevance. The history given by her in
    evidence and largely to her advisors does not relate any of
    her problems to the 1987 accident. Indeed in at least one
    report she omitted to mention it. In context there is
    nothing sinister in that omission. I infer from it that in
    her mind that accident had no role to play in her ongoing
    problems. I conclude she is correct in that. There can be
    no certainty in this. My conclusion on the balance of
    probabilities is that any ongoing problems with her neck
    prior to the accident in August 1988 were minor and not
    necessarily relateable to the 1982 accident. The lack of
    her treatment between 1982 and 1987 supports that."

38. I consider that this was a logical conclusion on the evidence, particularly because, as the learned magistrate pointed out, the pain following the 1987 accident was experienced on the right, rather than the left side. It was the appellant's evidence that the problems arising from the 1987 accident were minor and had resolved prior to the 1988 accident, she having lost no time off work. The learned magistrate accepted that evidence.

Accident of 19 August 1988 39. After this impact the appellant was very shaken up. She was taken away in the tow truck and experienced a bad headache, a sore upper back and her neck, head and arms "were tense". Over the weekend she rested, took hot baths and treated herself with analgesics.

40. On the Monday she consulted her doctor, who noted tenderness from the mid cervical spine down to a little below the shoulder blades. There was also some tenderness to the right side of the middle back. X-rays ordered at the time indicated no visible abnormality. The appellant was given two days off work and was prescribed anti inflammatories and analgesics.

41. The appellant re-attended the doctor two days later. She was still very sore to the neck, particularly on the right side. The learned magistrate summarised what followed as under:-
    "On the 24th, the Wednesday, she saw him again and reported
    that she felt pretty much the same and obtained a further
    certificate until the next weekend. She returned to work on
    the following Monday but was still sore. Her last visit to
    the doctor concerning this was on 12 September by which time
    she had a constant pain in the neck. All this prevented her
    driving and she was getting to work by her mother-in-law
    dropping her off at work. She then, on her own volition,
    undertook an extended course of physio treatment commencing
    in November 1988."

42. He went on to recite:-
    "On 12 September 1988 she consulted Dr De Rosa and reported
    that her neck was better. It was less stiff. She was still
    having headaches but was coping at work. At that time she
    had a good range of movement. Her next consultation with Dr
    De Rosa in relation to her neck was on 20 August 1990.
    Between her visit in September 1988 and this visit in August
    1990 she consulted the clinic on 13 occasions and made no
    mention of neck or back problems. She was complaining of
    back problems in the consultation of 20 August 1990. On 16
    January 1991 she reported that she was still suffering from
    headaches. She complained of a constant ache in her back
    and said she had good and bad days. She was coping with her

    job, but it caused her pain. He noted that she was tender
    from the mid-thoracic to the upper cervical spine and her
    movements were slightly decreased.

Dr Rositano saw her on 24 April 1991 when she reported heart
    palpitations. She was also complaining of neck and upper
    back pain which she related back to an accident in August
    1988. She said she had never got better. She said she had
    had physio. He offered her acupuncture which he undertook
    between May 1991 and August 1991. Despite some initial
    benefit that didn't help much and the treatment was stopped.
    In August 1991 he recommended a program of muscle
    strengthening. A CT scan was organised to eliminate the
    possibility of disc problems. In April 1992 he arranged for
    her to obtain a TENS unit, which is a nerve stimulator. He
    saw her again in relation to her neck in May 1992, August
    1993, December 1993, and February and October 1994. She was
    still complaining of problems with her neck and headaches.
    He was counselling and reassuring her. He noted that at the
    end of 1992 she had a swollen gland on the left-hand side of
    the neck which is still not totally resolved.

I notice that Dr Rositano assessed the plaintiff as a pretty
    honest sort of person. Of course, I must make my own
    assessment, but I am reassured that her treating G.P. has
    the same opinion to which I have independently arrived.

There are some discrepancies between her versions of her
    history of neck injury to the various specialists and in
    statements to SGIC and WorkCover. Reporting to Dr Morrison
    she failed to discuss the prior accidents. Her evidence in
    relation to leaving the job at ABC book shop in March 1989
    was that a primary factor in that was the pain she suffered
    in driving. This is not what she said to Dr Bauze. His
    notes on viewing her were to the effect that she left due to
    insufficient work. He noted that she had no neck problem at
    that time. I accept Dr Bauze's notes and clearly there is
    an inconsistency between her version to him and the version
    she gave in evidence. I accept the plaintiff as an honest
    witness and to resolve this discrepancy I find that there is
    an element of reconstruction in her evidence in relation to
    the circumstances of her leaving ABC books. I shall return
    to the detail of that later. In passing I note that Dr
    Bauze converted his handwritten note that she was coping
    with her clerical work 'okay' to a written report that she
    was coping with it very well. I do not make a lot of that,
    but apparently Dr Bauze's report to WorkCover, at least in
    this instance was more favourable to his client WorkCover
    than the handwritten record of her report, in fact,
    suggested. In any event, Dr Bauze's purpose was to report
    on residual disability for WorkCover purposes and not on
    causation."

43. All that need be said concerning that summation is that it was fairly open on the evidence and I can see no basis for rejecting it.

44. Having viewed evidence given by an expert medical witness called by the respondent with some scepticism the learned magistrate further commented:-
    "My personal assessment of the plaintiff is very favourable.
    I thought she was frank and open in giving her evidence
    although, of course, concerned to put her best foot forward
    to ensure that she fully established the genuine ongoing
    disabilities from which she suffers. I accept without any
    reservation that she has a significant permanent ongoing
    pain in her neck which is exacerbated by physical
    activities. What I need to resolve is the extent to which
    it was caused by the accident the subject of this claim."

45. At the end of the day he made these findings:-
    - the symptoms experienced by the appellant following the
    1988 accident were located in the same site as the 1982
    accident, but not at the site related to the 1987 accident.
    - the symptoms arising from the 1982 accident had resolved
    by the 1987 accident.
    - the 1982 accident "and perhaps the 1987 accident" left
    her with a weakened neck such that the injury that was
    occasioned to it in the 1988 accident, which was a severe
    injury, has caused her ongoing significant chronic problems.
    - had the 1988 accident not occurred her neck problems
    would have been very minor and would have resolved.

46. These conclusions led him to the following ultimate summation:-
    "... I conclude that the plaintiff was a person with a
    weakness predisposing her to a serious neck injury as a
    result of the previous accidents. I reject the contention
    that this accident was merely an exacerbation of her
    pre-existing and continuing injuries. This is her clear
    evidence which I accept. I believe that is an excess of
    caution, but I will assess the defendant's ongoing neck
    problems as 20 per cent relatable to the pre-existing
    injuries. Clearly however, the overwhelming cause of her
    present problem is the significant accident in August 1988
    from which this claim arises."

47. The learned magistrate also expressed the view that, given the passage of time since 1988 and the medical evidence generally, there is no reason to expect much future improvement in the appellant's condition. She was left with what he characterised as the "usual whiplash symptoms of restricted movement, pain and headaches, etc", to the extent that her condition was "at the top end of a whiplash assessment". For that reason he selected 9 on the section 35A scale.

48. Given those findings it was the contention of the appellant that there was no justification in law for a reduction of 20% to be applied to the damages for non economic loss, because, at best, they only amounted to a finding that she was more vulnerable to traumatic injury than otherwise.

49. Reliance was placed by the appellant on the reasoning of King CJ in Terrington v Beck (1982) 100 LSJS 265 at 267-8, where he expounded these propositions:-
    (1) It does not, generally, avail a defendant merely to show
    that the victim of his negligence was weak and easily
    injured.

(2) The onus of adducing evidence that incapacity is wholly
    or partly the result of some pre-existing condition or that
    it would (at least to some degree) have resulted from a
    pre-existing condition rests upon a defendant.

(3) Whilst normal vicissitudes of life must be taken into
    account, these are to be taken to exclude future tortious
    acts:-
    "This exclusion is made because the future tort feasor takes
    the plaintiff as he finds him and must pay damages only for
    the disability and loss caused to an already disabled
    person."

50. The consequences of possible future trauma from non-tortious causes must, however, be taken into account. This necessitates consideration of possibilities of natural degeneration or the likelihood of relevant non-tortious trauma.

51. Such reasoning is, of course, consistent with that articulated in Wilson v Peisley (1975) 7 ALR 571.

52. The respondent did not seek to deny the validity of those propositions, but sought to answer them by this process of reasoning:-
    - the plaintiff remained under a legal and evidentiary onus
    to prove that she was not still suffering from her
    pre-existing conditions. (Reliance, in this regard, was
placed on Watts v Rake (1962-3) 108 CLR 158 at 163
    - the court must regard the plaintiff as having been
    "devalued" by reason of the previous injuries (Baker v
Willoughby (1970) AC 467 at 496, Manno v Edge (Full Court,
    25 May 1990, unreported)
    - in this case there could never be certainty as to the
    extent to which the sequelae of the 1982 and 1987 neck
    injuries were still operating
    - there were obvious negative contingencies which demanded
    to be taken into account and any assessment of damages must
    be moderated "to reflect the degree of probability" of such
    vicissitudes taking effect (Malec v J.C. Hutton Proprietary
Limited (1989-90) 169 CLR 638 at 643-5, 645.

53. So it is that the respondent contends that the 20% reduction does no more than reasonably reflect what is a proper allowance for any "continuing effects of the pre-existing, unrelated injuries, as well as the degree to which the plaintiff's current problems might have been 'triggered' in any event".

54. I must confess that, with respect, in examining the reasoning of the learned magistrate in light of those competing contentions, I have considerable difficulty in perceiving the logic of his ultimate conclusion. Having first concluded that, had the 1988 accident not occurred, the appellant's neck problems would have been very minor and would have resolved, nevertheless he went on to say:-
    "... The 1988 accident was a significant trauma. She was
    travelling at 60 kilometres per hour and hit the front
    corner of the car which was cutting across her path, and
    mounted the median strip. This caused her immediate
    substantial pain and I accept that that pain has continued
    on an ongoing basis since then. I conclude that the
    plaintiff was a person with a weakness predisposing her to a
    serious neck injury as a result of the previous accidents.
    I reject the contention that this accident was merely an
    exacerbation of her pre-existing and continuing injuries.
    This is her clear evidence which I accept. I believe that
    is an excess of caution, but I will assess the defendant's
    ongoing neck problems as 20 per cent relatable to the
    pre-existing injuries. Clearly however, the overwhelming
    cause of her present problem is the significant accident in
    August 1988 from which this claim arises."

55. On the face of it this type of reasoning appears to constitute a contradiction in terms. One commences with the proposition that the pre-existing condition had, for all practical purposes, resolved. The appellant, no doubt, was a person who was, to some extent, more vulnerable than others to significant traumatic events. As a consequence of the 1988 impact she in fact suffered what was a quite significant traumatic event - one which was characterised by the learned magistrate as giving rise to a whiplash injury towards the top of the relevant scale. This was by no means - as he pointed out - a mere exacerbation situation. It was a substantial new injury.

56. There was simply no basis in evidence for concluding that normal vicissitudes of life, short of very significant trauma, would have given rise to a similar result, nor was there substantial indication of almost inevitable degeneration. That being so and there being no evidence of likely exposure, in normal, day to day living, to significant potential trauma, it becomes impossible to follow why it should become necessary to resort to any substantial percentage as "an excess of caution". Such a concept, in any event, has no relevance to this type of situation.

57. It may well be that there is a strong basis for suggesting that little broad axe adjustment at all ought to be made. However, at best, such an allowance for adverse contingencies ought not to exceed 10% at most. I propose to allow the appeal for the purpose of adjusting the assessment for non economic loss accordingly.

58. As to the assessment of past economic loss, it is to be borne in mind that this consists of two components, namely $2,000 in respect of a four month period spanning April to July 1989 inclusive. The learned magistrate purported to arrive at that result by calculating loss for four months and then abating it to three months to allow for contingencies and other factors related to employment with an employer called ABC Books.

59. The respondent contended that the learned magistrate proceeded upon the wrong conceptual basis as to the $2,000. On the authority of Medlin v SGIC
(1995) 69 ALJR 118 it was submitted that the correct approach was to determine whether the appellant's departure from the relevant employment was caused in a material and relevant sense by her injury. It was argued that the evidence disclosed that the reason for departure was, as was recorded by Dr Bauze, that there was insufficient work.

60. The appellant has, at all material times, conceded that this component of the award ought to have been $1,500 (rather than $2,000), but otherwise contends that a proper basis for an award in respect of the period in question was made out.

61. The short answer to the respondent's contention is that the learned magistrate was not prepared to place the absolute construction espoused by the respondent on the notes made by Dr Bauze. He commented:-
    "The plaintiff left ABC Books on the 31st of March 1989. My
    conclusion from some inconsistent statements to her medical
    advisers as compared to her evidence is that she left in
    part due to difficulties of driving occasioned by the move
    of the business further away from her place of residence in
    combination with her own difficulty of driving caused by the
    accident, and also due to the fact that her long term
    employer died and there were doubts as to the viability of
    the business. She then quite quickly obtained a job at a
    supermarket at Arndale. I accept that she was unable to do
    this work as a direct result of this injury. It was not
    until August 1989 that she was able to obtain work at GMH.
    I conclude that part of the reason she was unable to keep
    her job at ABC, left the job at Arndale and also was
    prevented from obtaining alternative work from April 1989
    until the end of July 1989 was this injury."

62. There can be no doubt that these findings were fairly open to the learned magistrate on the evidence. I see no reason to reject them. Accordingly, the only adjustment which ought to be made to this component is the $500 abatement conceded by the appellant.

63. As to the $5,000 component the respondent argued that the proposition underlying the award, namely that the plaintiff proposed to return to work following the birth of her second child, was not made good on the evidence. It was contended that the absences were not shown to be caused by the injury. It was also submitted that due regard was not had to the fact that, when the plaintiff later went to GMH to do heavier work, the work precipitated unrelated symptoms in the appellant's right hand and wrist.

64. The short riposte to that proposal is that the learned magistrate expressly found as follows:-
    "The next relevant period is after she left GMH for
    maternity leave, and the period after her maternity leave
    finished. She did not then return to work at GMH. She
    acknowledged that in part this was due to her intention to
    spend longer in a parenting role with her second child than
    she had with her first. Certainly that was her husband's
    desire. He did not wish her to return to GMH as he thought
    that it was too much stress upon her. However, I accept her
    evidence that given the financial pressures caused by the
    family having bought a new house, had she been in good
    health, it is more likely than not that she would have
    returned to GMH. She was well thought of there as the
    defendant successfully proved. Again a broad axe has to be
    used here. I would allow a further $5,000 past economic
    loss in relation to this.

In this regard I accept that the undertaking by her of a
    course in childcare was an attempt by her to improve her
    position to earn income in view of her ongoing neck pain.
    In effect, a mitigation of her damages by making other work
    available which both enabled her to fulfil her desire to
    personally parent her child, but also bring some income into
    the house in a type of work that she could handle. This
    should not be held against her. Had the injury not
    occurred, it is more likely than not that she would have
    returned to the type of work at GMH. ..."

65. At the end of the day such an assessment is very much the product of the view taken of the credibility of the injured person and the impact of the evidence taken as a whole. I am not able to say that the learned magistrate fell into error in adopting this view of the situation. The state of the evidence was such that this was a construction which he was entitled to place on it. Moreover, the amount awarded was a very large discount on nominal possible earnings over the relevant period.

66. It is to be recalled that, inter alia, the learned magistrate applied the 20% discount factor for contingencies to the total figure awarded for past economic loss. The appellant complains of this as being inappropriate.

67. Quite apart from the fact that, as I have already concluded, a figure of 20% was not warranted, it seems to me that the evidence did not justify any discount in relation to past loss. Indeed, to do so was, to some extent, tantamount to double counting, because, as I have said, very considerable contingency allowance had already been written into the primary figures struck, albeit that this substantially reflected a number of other factors. But, be that as it may, there was simply no evidence of substance to found a proper conclusion that, in the relevant periods, it is probable that impaired capacity for work may well have arisen as a consequence of either any pre-existing condition or, more importantly, the unlikely event, at those times, of some non-tortious trauma of substance.

68. The sum of $7,000 must stand, unabated, save as to the $500 conceded.

69. The same conclusion must be arrived at concerning the allowance of special damages. There was no satisfactory evidence to rebut the obvious inference that the treatment sought and given was reasonable to alleviate the symptoms arising from the accident. It is impossible to perceive any logical basis for a discounting of them.

70. There only remains for consideration the issue of the allowance for future economic loss.

71. It cannot be stressed too strongly that what fell to be assessed was loss of economic capacity, given that the degree of likelihood that actual losses will actually be sustained at given periods in time is highly relevant.

72. The evidence established beyond question that, by reason of her residual, chronic symptoms, the appellant will, in future, suffer a degree of limitation in the type of employment which, realistically, she will be able to undertake.

73. As the learned magistrate pointed out, she is now only 31 years of age and has had a good, long term employment history. She has been willing to engage in a variety of forms of work and there is no reason to doubt that, subject to the needs of young children, she would have sought and will seek work. In doing so she will be at a comparative disadvantage with persons with no similar medical history or physical limitations. The learned magistrate quite properly concluded that, even in non manual type work activities, she will have some limitations.

74. It is beyond question that the learned magistrate was required to assess the degree of probability that the appellant would actually sustain a loss of income by reason of the sequelae of the accident (Medlin v SGIC, Malec v J.C. Hutton Proprietary Limited). I consider that the proposition advanced by the respondent that the appellant may never actually sustain any financial loss by reason of the 1988 injury is little short of fanciful.

75. This was the classic case requiring some broad axe judgment bearing in mind all relevant contingencies, not the least of which is the potential length of the appellant's future working life at age 31. The learned magistrate appreciated that need and approached his task on that basis.

76. Various minds may well differ as to what would be an appropriate figure, but it cannot properly be said that $20,000 falls outside a reasonable spectrum of assessments. The real issue seems to me to be whether, on any basis of logic, the evidence in this case justifies a conclusion that such a broad axe assessment should attract a further deduction of 20% for vicissitudes of life. Quite apart from any earlier comments on that score I must confess that I have enormous difficulty in perceiving how one can confidently arrive at a broad axe assessment of $20,000 for loss of economic capacity excluding life contingencies and then apply a second broad axe adjustment in recognition of them.

77. What is required is the addition of a single, overall, broad axe assessment of damages on this aspect taking into account all necessary factors.

78. In my view the sum of $20,000 is appropriate as an "all up" figure for future loss and ought not to be abated.

79. In relation to the question of interest the appellant concedes that the sum allowed is erroneous and ought to have been a lump sum figure of $1,000.

80. It follows that the appeals ought to be allowed in this matter so as to reflect an award of damages computed as under:-
    Non economic loss, less 10%         $ 8,667.00
    Past economic loss  $ 6,500.00
    Future economic loss                 $20,000.00
    Special damages   $ 4,007.60
    (less proper credits to be given)

81. To that must be added the proper lump sum interest.

82. Save for those adjustments conceded by the appellant the cross appeal ought to be dismissed.

83. I do not pretend, on the material before me, to understand how the total of special damages needs to be reduced for credit which must be given, as that has not clearly been explained to me.

84. I propose merely to publish these reasons to indicate my principal conclusions. I will hear counsel as to the precise mathematical adjustments to be made to the judgment to give effect to them, as to the questions of costs in this court and the court below, and any consequential matter.