Johnson v Marshall No. DCCIV-97-1614 Judgment No. D49

JOHNSON v MARSHALL
[1999] SADC 49

Judge Taylor
Civil

At about 3.20pm on 23 December 1994, Keith Douglas Johnson, the plaintiff, was driving his motor vehicle in an easterly direction on Port Road, West Croydon in the State of South Australia and he was travelling towards the city. He was driving his own Nissan Vanette and he was working as a courier for Yellow Couriers. Whilst travelling on Port Road, he noticed some people playing football in the large median strip and they kicked the ball onto his carriageway which caused vehicles in front of him to brake suddenly and the plaintiff bought his vehicle to a halt without incident but the vehicle following him failed to stop immediately. He said he heard the scream of brakes from the vehicle behind him which was driven by Julie Marshall.
He said he heard the scream of brakes but that the car failed to brake in time and the front right hand corner of her vehicle collided with the rear right hand corner and on the side of the plaintiff’s vehicle. The plaintiff said that in the impact the rear of his seat broke and he stayed in his vehicle for a while and became furious and angry that in fact this accident had happened two days before Christmas and eventually he left his vehicle and went to the side of the road and vomited. After that, he had a conversation with the other driver and exchanged information and then he drove direct home without completing his deliveries. In fact another courier took the parcels from him and continued the deliveries which he would have had to make.
He described that at the scene he felt tingling in his arms. His neck was a little sore and also his lower back. He had previously had tinnitus in his ear but he noticed immediately at the time of the accident, the tinnitus became much more extensive and he also noted a graze on his hand.
I accept the evidence of the plaintiff that he experienced all those symptoms at the time of the accident. He describes at the time he arrived at home the symptoms were much more noticeable and he immediately arranged to see his general practitioner who had been Dr Wong but when he arrived he was not available and he saw another doctor at the Clinic, a Dr Orsillo.
The plaintiff suffered no objective injuries in the accident, that is there were no traumas to his head or any other part of his body apart from a graze on his hand.
It is important to look at the various characteristics of the plaintiff to find what all of his attributes were as he comes into this event.
He was born on 20 December 1944 and he went to school to third year at age 15 years when he left school for some disciplinary trouble and commenced employment. He had various employments over a number of years until he joined the Army on 13 February 1962 at age 18 years and he remained there for 24 years leaving in April 1986 aged 41 years. He left as a Warrant Officer Second Class in the Australian Army Catering Corps. In all he has been in permanent employment for some 34 years.
After recruit training he joined the Australian Army Catering Corps and he did a basic cook course and he was a cook in the catering corps for the whole time that he was in the army and for some period he was involved in hands-on cooking but when he became a Sergeant he had tended to become more supervisorial and that is what he did for the last 12 years of his time in the army.
Whilst he was in the Army he had a number of overseas tours first of all to Malaya in 1964 and again in 1965. In 1967 he was in Vietnam again in the cooking corps doing catering and he spent time in various areas within Australia and eventually he discharged himself after a dispute with his last posting in Darwin because he was not to be upgraded to a Warrant Officer First Class and he left the army in Sydney and then discharged to Adelaide.
When he left the army he received his service pension which became his substantial source of income and he also received pensions for disabilities caused while in the service which commenced at 30 per cent and subsequently was increased to 40 per cent and then 50 per cent.
After he left the Army he applied for a number of jobs and he gained employment with Sacred Heart College which then had about 90 live-in boys.
He didn’t have to do the cooking but he had to supervise other cooks and he remained in that job for about 20 months until the brothers at the school rearranged the teaching system and his services were no longer required. That was at about the end of the first term in April.
He then looked around for other employment and obtained a job as a taxi driver and he took a taxi licence out and was driving shift work for a taxi out at Highbury and that lasted for about 3 months. It was not his intention to continue that as a full time job.
After that he spoke to 2 or 3 couriers who were on the road at the time and he decided to approach Yellow Couriers who were advertising for couriers and he commenced work with them in about July 1988 and it was necessary for him to have his own vehicle and they would supply courier jobs for him to perform; he received 65 per cent of what was earned.
Initially he obtained a Toyota Lite Ace. That vehicle was burnt out and he bought a Nissan Vanette in about 1993. It was about 5 years old.
His work with Yellow Couriers was given to him by them and it was quite varied. Sometimes he would have to deliver nothing more than an envelope and on occasions large boxes of paper weighing 30 kilograms or crates of milk, delivering them to Greenock or Murray Bridge. For quite some time he had direct routine deliveries, such as delivering pies and pasties and sausage rolls for Real Country Foods, and with trays running into about 12 to 16 kilograms a tray and delivered to various customers along the road.
It was whilst making a delivery of bank bags to a bank that on 23 December 1994 he had the accident to which I have referred.
The Yellow Courier work that he did was a partnership with he and his wife, although his wife took no part in it whatsoever. His wife was included in the partnership for the purpose of dividing the income for taxation purposes only.
It is also important to look at his medical history, during his years in the Army and in subsequent employment, to see if they have any bearing on his complaints of symptoms that he made after the accident on 24 December 1994.
Many of his earlier incidents are not of any great moment but I will deal chronologically with them so that all the later ones are put in context with what happened earlier in his career.
In 1962 he suffered deafness caused on the firing range.
On 28 March 1962 when asleep a noise startled him and he jerked his neck and he could not move his arms. He had pins and needles and was at a hospital.
On 2 April 1962 he had pain in his lower back and on February 1962 he complained of tinnitus in both his ears. In 1962 his hearing improved when he had his adenoids removed.
In August 1962 he had a dispute with the Services as he was only contracted to serve for 3 years and he wanted to extend it to 6 years as they thought that his history mitigated against that although of course we know that he served much longer than that.
In September 1964 he was prescribed ear drops. On 10 December 1964 he had dizzy spells with headaches and back pain.
In 1977 he got involved in a fight and was knocked unconscious and was unconscious for some 7 hours.
In May 1970 his arm and right wrist were complained of.
In June 1971 he complained of dizzy spells and veering to the right when walking, as though someone was trying to push into his head, and he had headaches, and his head felt tight.
In October 1971 he was going to have his tonsils out, and after having the pre-med he discharged himself.
In June 1980 he had blurred vision in one eye and he was treated at the Melbourne Eye Hospital, having sepia colour in one eye.
In April 1982 he had a nagging back pain and was given light duties.
On 8 February 1983 he had 4 weeks off for low back pain and was given Brufen.
In 1982 he was knocked on the chin when playing sport and it resulted in tinnitus; he left the room and vomited and the tinnitus continued in his left ear and dizziness. He said that the tinnitus continued for some time, and in fact has always continued right up till the time of the accident. It bothered him if he was woken at night and everything was quiet, but if he was working during the day he could hear it and it did not disturb him at all.
The tinnitus in his left ear and the bit of dizziness caused him to consult Dr Guerin in Kent Town, an ear, nose and throat specialist. He diagnosed tinnitus after doing some tests but no operative treatment was recommended.
The plaintiff suffers with one or two other problems which occurred in the Army. One is dermatitis which he is being treated for and the other is allergic rhinitis which was caused by the flour that he had to work with. For both of those matters he has been given medical treatment from time to time.
On 8 March 1983 again he was prescribed Brufen for his back pain and he was placed on restricted duties for one month.
On 27 April 1983 he had back and leg problems after pulling a heavy box. He was put on light duties. He had an x-ray of his lumbar spine and the pain radiated to his legs.
On 6 May 1983 he had a back injury and was restricted to light duties.
On 13 May 1983 a back injury restricted him to no heavy duties.
On 20 October 1983 he suffered a stiff sore neck and was placed on restricted duties.
On 12 December 1985 he complained that the room was spinning around him and that he was dizzy in those circumstances.
In 1987 he first noticed his photophobia that he suffers from now and wears appropriate glasses for that purpose.
In December 1987 whilst working at Sacred Heart he had an accident that affected his lower back.
In February 1988 he had a pain in his lower back when acting as a courier, an accident at the fish market.
In 1989 he had a motor vehicle accident, a rear end collision near Grote Street.
On 27 November 1990 he slipped out of his van and he had 2 weeks off and an x-ray of his coccyx.
In 1991 he had a motor vehicle accident in North Terrace, a rear end collision.
He asserts that in both of those motor vehicle accidents, of 1989 and 1991, he suffered no injury.
Many events have changed for the plaintiff from the time of the accident of 23 December 1994 and he blames most of what he has suffered since then on that incident.
I will consider his immediate symptoms and those suffered by him further in time. I will refer to his evidence and have regard to all of the various medical practitioners. Those were his general practitioner, Dr Orsillo, Dr Nagesh, a psychiatrist, Dr Goldney, a psychiatrist, and Dr Kneebone, a neurologist, a report of Dr Steele, a cardiologist, a report from Dr Guerin, a report of Dr Tomish, and Associate Professor Sharpe and report from Briony Lock of Career Focus.
It is for the plaintiff to prove his case, and that means that he has to satisfy the court that his several disabilities and symptoms were caused by the negligence of the defendant; that is to prove a nexus of the necessary degree to the accident, see Watts v Rake, 108 CLR 158 at p163, where Menzies J said:
“It was for the appellant as plaintiff to prove his damages, and merely to prove his present condition and his incapacity to work would not prove that these things resulted from the accident. It was not, however, for the plaintiff to disprove that his pre-accident ill health would eventually cripple and incapacitate him. Prima facie, where a plaintiff was in apparent good health before an accident and is in bad health thereafter, the change would be regarded as a consequence of the accident and it is for the defendant to prove that there is some other explanation for it, e.g., that the plaintiff has aggravated his condition by some unreasonable act or omission. Similarly, although it is of course material to ascertain what was the pre-accident condition of the plaintiff who alleges that his post-accident ill health is due to the accident, it is for the defendant to prove that before the accident the plaintiff was in a condition that, without the accident, would have led to his post-accident state of health.”
The facts in this case are not the same as those referred to in that case and it is clear that there are different factors applying when there are intervening matters happening to the plaintiff after the accident, and it is not merely an aggravation of some pre-existing matter although that may also be relevant in this case.
I will consider all of the evidence to see where the evidence of the plaintiff stands in relation to the above or other matters.
The first evidence to consider of course is that of the plaintiff, and then his wife’s and then the whole of the medical evidence and the addresses of both counsel.
In Giorginis v Kastrati 49 SASR 371 at p374 VonDoussa J said:
“The burden of proof rests on the plaintiff. Where damages are claimed for a loss of earning capacity, the plaintiff must prove the extent of his pre-accident earning capacity, the extent to which that capacity would have been productive of income had the accident not happened, and the extent to which the compensable injuries have diminished his ability to exercise the pre-accident earning capacity. It is necessary to emphasise that these matters cannot be satisfactorily proved by medical experts alone. There must also be evidence to prove the basic facts on which the medical opinion depends, and the circumstances of the plaintiff which are necessary to translate the medical opinion into findings of fact pertinent to the assessment of damages for a loss of earning capacity. Medical opinion alone as to the plaintiff’s pre-accident and post-accident capacity for work cannot prove the extent to which the plaintiff’s earning capacity has been exercised in the past, or the extent to which his residual earning capacity is likely to be exercised in the future.”
I also refer to Jobling v Associated Dairies Ltd (1981) 2 All ER 752, where the headnote states inter alia:
“In the circumstances the damages awarded to the appellant for loss of earnings were to be assessed according to the principles that the vicissitudes of life were to be allowed for and taken into account when assessing damages so that the plaintiff was not over-compensated, and that a supervening illness apparent and known of before the trial was, whether it was latent or not at the time of the prior injury, at the time of the trial a known vicissitude about which the court ought not to speculate when it in fact knew.”
All of the reporting of the plaintiff shows that he reacted very unusually to the small accident that it was by staying in the motor vehicle for a while, leaving the car and vomiting, and being extremely angry about the whole incident.
The importance of those reactions are that they are quite unusual and in that context the defendant must take the plaintiff as he is and as he is shown to be at the time of the incident.
But in any event that reaction was not of very long standing. What he continued to suffer immediately after the accident was the tingling in his arms and the pain in his neck and lower back, and aggravated tinnitus. In Dr Orsillo’s report of 30 January 1995 he describes his present position then as being as follows:
“Examination revealed a tall gentleman who is obviously distressed from a recent accident. There was an abrasion involving the ulnar border of his right hand. There was a good range of movement of his lumbar spine with tenderness localised to the left lower lumbar spine, deep tendon reflexes were normal. There was a full range of movement of the cervical spine.”
Dr Orsillo in his report of 30 January 1995 says that he first saw the plaintiff on the day of the accident, that is 23 December 1994 and he described the accident to him. On that occasion on specific inquiry he gave no history of any previous back or neck pain but he did volunteer that he had a chronic left tinnitus ringing in his ears which had been present for several years.
As to his statement that he had not any previous back or neck pain I will refer to that later.
Dr Orsillo described his examinations as follows:
“I consider the diagnosis is of an abrasion to the right hand complicated by secondary infection, muscular ligamentous sprain to the lower cervical and lower lumbar spines. It appears that the accident also resulted in an exacerbation of his pre-existing tinnitus.”
The plaintiff had to have hospital treatment on his hand but it seems that it is more probable than not that he had suffered from boils for some time and that this was another example of that and that the graze may have not had a significant effect on the eruption of the infection and the expression of puss from his hand and I am not satisfied that it results from the accident.
In Dr Orsillo’s first report he concludes:
“I do no anticipate he will be left with any permanent residual disability of his neck or lower back, however, this issue would be best addressed in three months time.”
He was next reviewed on 30 December 1994. He reported that he had developed an infection on his hand and he had been admitted to hospital to have that surgically treated. He also indicated that the tinnitus had been much worse since the motor accident. It was louder and changed in pitch. He had also been experiencing pain in the base of his neck.
In view of the exacerbation of the tinnitus he was referred for ear assessment by Dr Marzec .
When last reviewed on 5 January 1995 his lower back and lower cervical symptoms had not significantly improved. On this occasion there was a slight restriction in lower cervical and lumber movement due to pain. He said at that time:
“I do not anticipate that he will be left with any permanent residual disability in his neck and lower back. However this issue would be best addressed in 3 months time.
I consider that he will be able to return to full normal duties in the future.”
In his report of 30th October 1995 Dr Orsillo referred to:
“On two occasions the plaintiff experienced periods of absences. These periods were not associated with any twitching or features of grand mal or epilepsy although petit mal epilepsy was suspected.”
Drs Nagesh, Goldney, Marzec and particularly Kneebone deal with that.
I refer to a report of Dr Marzec concerning the operation on the middle ear in August 1995. From Dr Marzec’s report dated 27 October 1995, he states:
“I suggested to the gentleman that he have surgery to the left ear and indeed I operated on the patient on 1 August 1995 at the Calvary Hospital and performed a left tympanotomy. Through an endaural incision I elevated the tympanic membrane and there were a lot of adhesions in the oval window which were divided. Fibrofat was placed over the footplate.”
In his letter of 6 November, referring to that procedure, he says:
“I in fact reviewed the patient today. I have received a letter from Dr J Hallpike, Neurologist. As you know, I operated on the gentleman on 1 August 1995 and performed a left Tympanotomy. I found there was no fluid in the round window but there were adhesions. I closed the round window with fibro fat and post operatively there has been a significant improvement in the gentleman’s dizziness.”
In his report of 10 September 1996 Dr Marzec stated:
“Since my report of November 1995 I have performed a follow up electro-coccolocrophy, and this showed that the SP/CAP amplitude which was 49.1% prior to the surgery was reduced to 21.96%.”
Dr Marzec went on in his evidence to say that that procedure was a success and limited the plaintiff’s complaints in respect of that matter.
Dr Marzec at pp 213, 214 and 215 gives the clear evidence that the fistula was not likely to have been caused by the impact in the accident. The plaintiff’s work history after the accident is as follows:
He was off work from 24 December 1994 until 5 July 1995, then he worked from 5 July 1995 to 24 July 1995. He was then off work from 24 July 1995 to 12 December 1995, then he worked from 12 December 1995 to 22 March 1996. It is important to look at the time lapses between some of the symptoms which the plaintiff has suffered from the date of the accident. Of course, it is not uncommon for some types of symptoms not to become apparent for a little time after any impact.

The difficulty in this particular case is that the impact was one that caused no obvious trauma to the plaintiff and it is not uncommon even for this sort of incident for some of the ligament injuries to his neck and cervical spine to occur later, although in this particular case there was no delay in those symptoms.
One of the difficulties in this case is showing any nexus between the accident and many of the symptoms which the plaintiff has suffered at some time later to the accident. For those matters I have regard to the medical reports which seem generally to suggest that many of these matters do not relate to the accident of 24 December.
Having regard to the plaintiff’s earlier history with problems with ears and dizziness and the whole of the evidence of Dr Marzec, I am not satisfied that the problem with the round window fistula and repairing of that shows any relationship to the accident of 24 December. I use his previous attendance on Mr Guerin when he was in the Army, when it was a possibility that he might have a fistula at the time, although that was not proceeded with. Of course, that is not my main reason for determining that matter; it is the evidence of Dr Marzec on the whole. As to the plaintiff’s neck and back problems I find that he had back problems prior to the accident over many years and on some occasions closer to the accident when he was working at Sacred Heart and when he was working as a courier, and these were not explained to the medical advisers. Notwithstanding that history, I am satisfied that in the accident he suffered an injury to his neck and back or at least an aggravation of his pre-existing conditions, and the time off for work for these symptoms relate to the accident.
One overlapping problem with that sequence of events is that at the time when he would have not been working because of his cervical spine and back problem he suffered a hernia injury which was nothing to do with the accident, and he had time off for that during that period.
The plaintiff described other alarming symptoms which come under the head of ‘absences’. These absences seem to have commenced when he returned to work and the first instant being in about July 1995 when he was driving at Dry Creek and going to do a left hand turn, and he remembered indicating to do so. Then he woke up again to find that he was around a corner on the other side of South Road. This was an absence of memory as to what had happened for a little while. He continued to have a number of these absences, that is, he would be driving and then find himself stopped later on the side of the road or driving for a period and not realising what had happened for some time. These caused him great distress and it was because of these that he ceased work on 24 July 1995.
He saw a number of specialists concerning this matter but received no diagnosis for it. I find that his failure to find a cause for this symptom caused his minimal depression to increase considerably to a depressed state, as described in the evidence of Dr Nagesh and Dr Goldney.
Having regard to the psychiatric evidence, where there is any difference between the evidence of Dr Nagesh and Dr Goldney, I prefer the evidence of Dr Goldney because his evidence is satisfactory in explaining the symptoms of the plaintiff. I prefer his evidence on the whole.
After considering all of the other evidence concerning the absences I accept the evidence of Dr Kneebone (transcript pp349-351):
“Q.... The plaintiff’s evidence about his absences is to the effect that they happen normally without any trigger or sign that it is about to happen and there is no suggestion of any anxiety or sweating or other difficulty immediately preceding the absence. Is that significant, in your view.
A.It’s not uncommon with complex partial seizures, in fact, to have some symptoms leading in the seizure. That is the so-called aura of the seizure. But some patients don’t experience much of an aura, or they may not remember it. The fact that there isn’t a long build-up to the seizures I think makes it unlikely they actually are induced by anxiety or panic.
Q...... Do you regard it as of significance that a psychiatrist, Professor Goldney, has expressed the view that in his opinion they are not related to any psychiatric illness or disability. Does that assist you in drawing the diagnosis that you have made.
A.I don’t believe that his epilepsy has been induced by a psychiatric problem. Is that what you are asking me?
Q...... That is one aspect of it, but I suppose the questioning of Professor Goldney was along the lines of could there be a psychiatric explanation for what is happening or is it more likely an epileptic explanation.
A.Fine. Yes, I would agree with that conclusion that there is an organic cause for these events.
Q...... The plaintiff has also given some evidence of being with his wife in the shopping centre, about to do some task that his wife has set for him and then finding that he has turned the corner without realising what has happened in the intervening period, again no evidence of any prodromal symptoms. Is that consistent with the complex partial seizures that you have diagnosed.
A.Yes, probably fairly brief ones but that is possible, yes.
Q...... I want you to assume for the purposes of my question that Mr Johnson was involved in the motor accident, about which you know, and that as a result of that accident he was immediately beset by a serious depressive condition which made it difficult for him to carry out activities, including driving; and he was also beset by a serious ENT condition which made it difficult for him to carry out activities, including driving; and thirdly I want you to assume, as we have discussed previously, that for the first time in July 1995 he experienced an absence. In your opinion would the epilepsy or the complex partial seizure have ruled him out of driving regardless of those other conditions.
A.Yes, I think once we had these episodes documented and we felt that there were good grounds to feel that he would be unsafe driving, as we have discussed already, yes, certainly from that time onwards until those events were adequately controlled he would have to be rendered unfit to drive.
Q...... Indeed, the plaintiff’s evidence is that he was scared by these absences whilst driving in July 1995 and so he saw his doctor and came off the road, as it were. Is that consistent with the epilepsy condition that you have diagnosed.
A.Yes.
Q...... After attempting a return to work in December 1995 he again experienced these problems such that by March/April of 1996 he was again scared and spoke to his doctor and then came off the road again as a result of these absences. Is that, too, consistent with the epilepsy diagnosis that you have made.
A.I believe so. My understanding is that when he saw Dr Hallpike in 1995 he was put on to carbamazepine, which is an anti-convulsant, and reading Dr Hallpike’s notes it sounds as if that led to a satisfactory response. My understanding is the events stopped when he was on carbamazepine. I think there may have been some reaction to it and presumably he did not remain on it.
Q...... There is evidence about a fluctuation in the type of drugs being taken. Does it necessarily follow that if a patient relapses in the epilepsy condition whilst on anti-epilepsy drugs that there is no epilepsy.
A.Not at all. Obviously drugs don’t always work, and the dosages may need to be adjusted or the drugs changed.”
I also refer to Dr Marzec’s evidence at pp214-220.
In Jobling v Associated Dairies Ltd (supra) Lord Keith said (at p764):
“In the case of supervening illness, it is appropriate to keep in view that this is one of the ordinary vicissitudes of life, and when one is comparing the situation resulting from the accident with the situation, had there been no accident, to recognise that the illness would have overtaken the plaintiff in any event, so that it cannot be disregarded in arriving at proper compensation, and no more than proper compensation.”

Lord Bridge (at pp767 & 768) said:

“When confronted by future uncertainty, the court assesses the prospects and strikes a balance between these opposite dangers as best it can. But, when the supervening illness or injury which is the independent cause of loss of earning capacity has manifested itself before trial, the event has demonstrated that, even if the plaintiff had never sustained the tortious injury, his earnings would not be reduced or extinguished. To hold the fortfeasor, in this situation, liable to pay damages for a notional continuing loss of earnings attributable to the tortious injury is to put the plaintiff in a better position than he would be in if he had never suffered the tortious injury. Put more shortly, applying well-established principles for the assessment of damages at common law, when a plaintiff injured by the defendant’s tort is wholly incapacitated from earning by supervening illness or accidental injury, the law will no longer treat the tort as a continuing cause of any loss of earning capacity.”

I am satisfied for the above reasons and for the other reasons I have referred to that those two substantial matters were not caused by the accident.
Dr Goldney in his evidence concerning the depression says:
“... from the accident, which was December 1994 through until March or April 1996, that’s a fair distance, fair time. If there was going to be a significant emotional reaction from the accident per se, I would have anticipated it would have come earlier; it would have been more obvious earlier.”
When Dr Kneebone was asked what his view was of the seizures and the absences he says, at p349:
“Yes, that episode is very consistent with a complex partial seizure, because quite clearly there was no collapse with this episode and therefore fainting and disrythmias of the heart are not a possible explanation for that, I don’t believe, because he came to the same position that he lost awareness in. It is too brief to have been a major event, so I think that is very consistent with him having a seizure.”
The plaintiff was given various drugs to try and control this matter and it has had some success in diminishing the effects of this form of epilepsy.
Having regard to the whole of Mr Kneebone’s evidence I am satisfied that the form of seizures and epilepsy as described in the evidence of Mr Kneebone have no nexus with the accident of 23 December 1994. I also find that the depression which the plaintiff has been suffering is due significantly and importantly from the failure to diagnose these symptoms, and I rely on the evidence of Mr Goldney.
And it is the combination of those reasons not related to the accident which made him not fit to obtain a driving licence and the reason he ceased work when he finally did on 22 March 1996.
Having regard to the whole of the evidence and not only the evidence which I have reviewed in this judgment but the whole of the medical evidence and the evidence of the plaintiff and his wife, I find that the plaintiff did suffer some significant matters in the incident, in particular, the aggravation of the tinnitus which I find has been a distressing course and will be for some time to come. I also find that he suffered problems to his neck and lower back but that these had resolved some months after the accident and have not been a major cause or even a significant cause of any loss of earning capacity.
As to his earning capacity at the time, it is clear from the whole of the evidence that his main income source was his Commonwealth Army pension and the two service pensions, which he and his wife had been receiving.
His income from the courier business averaged at the most somewhere between $11,000 and $12,000 per annum net after all the expenses had been paid but before tax.
I find that the major reason why he has been unable to carry out his functions as a courier driver are those relating partly to the fistula that I find I do not relate to the accident and more significantly from the absences which are not as a result of the accident. I therefore find that his loss has been for past economic loss which I find has been for a period of something in the order of 12 months or thereabouts and I arrive at a period which I think is appropriate in all the circumstances of 12 months’ loss of income, but taking off some of the time when he was working during the short periods up till 22 March 1996 and the period that he would have had off for his hernia operation, which would have amounted to about 2 months.
Rounding all those matters off, I allow him the sum of $9,000 for past economic loss and I allow him interest on that sum, which I fix at $4,000. That makes a total sum for past economic loss of $13,000.
As to his non-economic loss I believe that the significant feature of that is his increased tinnitus and I am satisfied on his evidence that that has been continuing and will continue to be a problem for him. I think also that his anger over the accident was something that he was always going to suffer because of the sort of person he was, and that a small part of his depressive state relates to that, although I find that that part of his depressive state is not a clinically depressive illness and has nothing to do with his earning capacity, but I believe it is something that ought to be compensated for in his non-economic loss. For that purpose I think the figure of 15 is appropriate for this, and the multiplier being $1,430. There is therefore a sum for non-economic loss for the sum of $21,450.
I accept the evidence of the plaintiff and of the various medical practitioners that he will not be able to continue with his work as a courier until he regains his driving licence, and this depends on the evidence given by Mr Kneebone as to his period of absences or his blankness as described by his wife from time to time, but, as I have already found, these do not relate to the accident. I am satisfied on the whole of the evidence that the plaintiff has not satisfied me, and the defendant on her evidence has satisfied me, that there is no loss of earning capacity by the plaintiff caused by the accident, and therefore I make no order as to future loss of earning capacity.
Most of the special damages have been paid and I have been given Exhibit D12 a further list of costs incurred, as for the defendant agreed as to the amount but not as to liability. In view of my above findings, it is difficult to allow much from this document. I am satisfied some were an attempt to mitigate loss but query to mitigate matters that I find not all the result of the accident. Nevertheless I accept the following:
A part of Dr Sharpe’s account $150

A part of Commonwealth Rehabilitation $400
Service account

A part of travelling expenses $450

A total sum of $1,000

100 There will therefore be judgment for the plaintiff for the sum of $35,450.

[1999] SADC 49

1 April 1999