Kyprios & Nelson v BHP Steel (Jla) Pty Ltd No. DCCIV-96-682

KYPRIOS & NELSON V BHP STEEL (JRL) PTY LTD

[2000] SADC 54

Judge Allan
Civil

The first plaintiff (‘the plaintiff’) claims damages for injuries and loss sustained in an accident which occurred in the course of his employment at about midday on 3 June 1993; and the second plaintiff, his partner, claims damages for loss of consortium in respect of the same accident.
At the time of the accident, the plaintiff was employed by Australian National Railways (‘ANR’) as a shunter and the defendant carried on business as a steel merchant from premises situated at Cormack and Wingfield Roads, Wingfield. The defendant’s premises consisted, in part, of a yard and a large warehouse. A railway track, a siding, led into the yard and warehouse.
On the day of the accident, the plaintiff, another shunter, Kelvin McInnis, and two drivers, Edward McLean and Bruce Domagalski, all employed by ANR, acting on instruction from another employee of ANR, were shunting 10 wagons onto the defendant’s yard using a locomotive. The locomotive was controlled and operated by the two drivers, McInnis controlled a warning device on Cormack Road as the locomotive shunted the carriages across Cormack Road and into the defendant’s yard and the plaintiff stood on a steel step attached to the front of the lead wagon to give directions to the drivers. The locomotive was at the rear of the ten wagons. It was pushing them. Inside the warehouse, the lead wagon on which the plaintiff was riding came into contact with coils of steel which were on the railway line, crushing the plaintiff’s left leg in the area of the thigh. The plaintiffs allege the accident was caused by the negligence of the defendant.
The issues arising for determination between the parties go to both liability and damages. I move first to a consideration of the issue of liability.
The siding in the defendant’s premises, and the warehouse the siding enters, run in a north/south direction. The locomotive was pushing the wagons in a southerly direction. As it approaches the northern entrance of the warehouse, the line is slightly curved so that, depending on the length of the ‘consist’, the combination of the locomotive and the wagons, there are points on the line where it is impossible for the driver of a locomotive to see the front of the leading wagon including any shunter who might be standing on the front of that wagon. The length of the consist in the present case was such that, when the lead wagon entered the warehouse, the front of that wagon, and the plaintiff, were not visible to anybody in the locomotive. Moreover, leaving that matter to one side, it would be difficult, if not impossible, for the drivers to have seen the plaintiff because of the position of the step on which the plaintiff was standing: it was at the front of the wagon. This does not mean that, because of the position of the step, a shunter standing on it could not make himself apparent to the drivers; but he would have to lean out past the side of the wagon or wave his arm for that purpose.
The role of the plaintiff as the shunter, apart from anything else, was to direct the driver of the locomotive, from time to time, as to the distance required to be travelled before the lead wagon reached the position where it was to come to rest and to give instruction to the driver of the locomotive as to when the consist should be brought to a halt. At the time of the accident, shunters commonly used two methods of communication with drivers: two-way radio and hand signals; the method adopted on a particular occasion depending on the circumstances which pertained.
The locomotive in use on the day of the accident had dual controls; one set on each side of the cabin. Of the two drivers, McLean was on the left, or eastern, side of the cabin and Domagalski was on the other side. McLean was, in fact, the driver; the person operating the locomotive. Domagalski was acting as observer. He observed by looking out the right, or western, side of the locomotive and along the western side of the consist. His job was to ensure that the passageway was clear of obstruction as best he could tell in the circumstances; and, as I understand it, for his part, McLean did the same on the other side as best he could.
As I have already said, McInnes, the other shunter present that day, operated the gongs, or warning signs, as the consist crossed Cormack Road and entered the siding. Having operated the gongs, he remained in that area. He did not follow the consist as it made it’s way towards and into the warehouse. He stayed in that position so that he could operate the gongs as the locomotive returned from leaving the wagons in the warehouse and on the siding and recrossed Cormack Road.
The plaintiff was armed with a radio and used it to communicate with the driver in the cabin of the locomotive. At the relevant time, save for a time which I will mention shortly, the plaintiff communicated successfully with the driver as the consist made it’s way along the siding and into the warehouse. The only form of communication between the plaintiff and the driver as the consist made it’s way along the siding was by radio. At all relevant times, neither the driver nor the observer could see the plaintiff.
The plaintiff was familiar with the layout at the defendant’s premises. He had been involved in shunts there on at least three occasions before the day of the accident. He had previously done the job he was performing at the time of the accident and he had used his radio for the purpose of communicating with the drivers while he was positioned in the warehouse. At the time of the accident, he was aware of a standing instruction to all shunting staff by the yard supervisor of ANR which, amongst other things, prohibited the use of radios for shunting purposes inside the defendant’s warehouse. ‘Standing Instruction No.19/91’ dated 5 June 1991, Exhibit D1, was in the following terms:-

‘Use of Radios during shunting operations
-Lysaghts Siding, Wingfield

The use of radios for shunting purposes inside of the Sheds at Lysaghts Siding, Wingfield, must cease forthwith and is hereby prohibited.
The following instruction must be adhered to:
(1) .. Prior to the leading vehicle entering the Shed, the movement must be brought to a stand and the Engineman must be advised that radio signals for shunting purposes must cease and that hand signals only will be used.
(2) The movement into and within the sheds must then be carried out by hand signals only.
(3) .. The Shunter Main Depot must position himself so that he can relay to the Engineman or Observer, all hand signals which may be given by the Leading Shunter.
(4) When all movements inside of the sheds have been completed, the Leading Shunter may then advise the Engineman that radio signals will again be used for shunting operations.

All concerned are urged to give this matter their special attention.
Effective forthwith’.

The ‘Lysaght Siding’ referred to is the defendant’s premises with which this case is concerned. As I understand it, at the time of the accident, the plaintiff was acting as a leading shunter and McInnis was acting as a shunter main depot.
Leaving aside the plaintiff’s knowledge of D1, he was aware on the day of the accident that shunters were not permitted to use radios for the purpose of communication with drivers of locomotives while they, the shunters, were in the warehouse: shunters experienced in working at the defendant’s premises had told him. He was also aware that, notwithstanding the prohibition against it, shunters used their radios from inside the warehouse for such purposes.
The apparent reason for the prohibition against the use of radios by shunters while inside the defendant’s warehouse was occasional radio failure in that environment. Prior to the accident the subject matter of this case, McLean, the driver I have earlier referred to, was the driver of a locomotive at the defendant’s premises when there was a failure of a radio communication while the shunter was in the warehouse and the locomotive continued to travel in the absence of the receipt by the driver of a communication from the shunter to stop and the lead wagon of the consist collided with some steel coils which had been stacked on the line. There is no evidence that the plaintiff was aware of the specific reason for the prohibition, but he should have realised that, at least in part, it related to safety; that, for whatever reason, the use of the radio inside the warehouse was unsafe.
The wagons were moving at no more than walking pace as they made their way along the siding towards the warehouse. The driver could have stopped the locomotive in a distance of 3 feet to 15 feet from getting the instruction from the shunter to do so. The wagons did not stop before they entered the warehouse, but, as the plaintiff entered the warehouse, he was informed by an employee of the defendant to stop the consist near the steel coils on the line. The steel coils were about 300 feet from the northern entrance of the warehouse.
It was a clear, sunny day. In the warehouse, lights were on. A door at the southern end of the shed, through which the siding extended, was closed. However the lighting conditions in the shed might be described, the plaintiff, from his position at the front of the lead wagon, saw the steel coils stacked on the line after he entered the warehouse. I accept that, coming in from bright sunshine, he would have had to adjust to the lighting conditions inside the warehouse; and I also accept that, had the southern door been open, it would have been brighter inside the warehouse in the area where the steel coils were on the railway line than if it was shut; but, whatever the position, the significant thing is that, shortly after entering the warehouse, he saw the steel coils on the line; his attention having also having been drawn to them by the employee of the defendant as he entered the warehouse.
The plaintiff, by radio, told the driver to push into the shed. After he became aware of the presence of the steel coils on the line, the plaintiff communicated with the driver by radio. The driver received two such communications; the first indicating there were five wagons to stop and the second indicating there were three wagons to stop. Wagon lengths were the form of measurement used by shunters and drivers during the shunting process. The wagons were each 12,287 mm in length. The driver did not receive a communication to stop. The plaintiff had given a communication to stop. It did not get through. The radio had failed; and, so, the wagons moved on until they collided with the steel coils, pinning the plaintiff between the steel coils and the end of the wagon where he was standing. In finding that there were two communications received by the driver from the plaintiff, I have relied on the evidence of McLean: that was the effect of his evidence and I accept it. The plaintiff’s evidence on this topic suggests that more than two communications got through, but I think he is wrong about that.
The plaintiff says that, as the wagons made their way along the siding towards the warehouse and in the warehouse itself, he stood on the step facing the locomotive; that is, with his back to the direction in which the wagons were travelling. He says that he was holding the radio in his right hand and that his right arm was hooked through the handle-bar above the step. He says that, as the wagons were moving along inside the warehouse, he was using his extended left arm to give hand signals. He says that he could see what he thought was the silhouette of McInnis at the northern doorway of the warehouse on the western side. He says that, in order to assess the distance the wagons had to move before coming to a stop, and for the purpose of giving directions about that to the driver, he looked over his left shoulder from time to time. He says he was in that position when he came into contact with the steel coils.
There were two employees standing at the northern doorway on the eastern side of the railway line as the wagons entered the warehouse; Steven Price and Kerin O’Leary. I mention that it was O’Leary who told the plaintiff where the wagons were to stop. Price’s evidence is in conflict with that of the plaintiff as to the position in which the plaintiff was standing on the step. He says that, when the wagon on which the plaintiff was riding passed him, the plaintiff was standing on the step facing the direction in which the wagons were travelling with his radio in his right hand. He says that, following the collision, he went to the end of the consist to see what had happened and saw the plaintiff on the step pinned between the wagon and the steel coil with his back to the wagon and facing in the direction of the steel coil. He says that the edge of one of the steel coils was pinning the plaintiff’s left thigh against the wagon. He says the plaintiff was holding his radio in his right hand.
I think that, in giving evidence, the plaintiff engaged in some reconstruction of events. I think he was seeking to explain a terrible accident. He also had a tendency to argue his position from the witness box. I prefer the evidence of Price to that of the plaintiff on matters of conflict between them. I am satisfied, and find, that the plaintiff was facing in the direction, and his body was positioned on the step, according to Price’s evidence as the wagon on which the plaintiff was travelling entered the warehouse. I am satisfied, and find, that the plaintiff was pinned in the position Price says he was in; that is, that he had his back to the wagon and was facing towards the steel coils. Mr Kourakis, QC, for the plaintiff, submitted that this was inconsistent with the blood stains on the grid above the step where the plaintiff was standing. I took that submission into account in deciding whether to accept the evidence of Price and concluded that the position of the blood stains was not sufficiently cogent for me to rely on it for the purpose of rejecting the evidence of Price on this topic.
The plaintiff was wrong when he says he saw the silhouette of McInnis at the doorway of the shed. He could not have seen him. He was not there. There is nothing in the evidence to indicate anybody was standing at the door on the western side as the wagons entered the warehouse and made their way along the line inside the warehouse. It think that is the combined effect of the relevant evidence on that topic apart from that of the plaintiff. I am not prepared to rely on the evidence of the plaintiff on this topic to find to the contrary.
I am also not prepared to accept the evidence of the plaintiff that he gave hand signals when he was in the warehouse. He says, as I have mentioned, that he was giving them with his left hand. I think Price’s evidence means that was not so; but, whatever, I am not prepared to accept the evidence of the plaintiff on that topic. It struck me that he was concerned to be seen to be giving hand signals because of the prohibition against the use of radios. He knew that he was required to use hand signals.
Prior to the accident in question, it was common practice, because of the demands of space, for the defendant to store steel coils on the railway line in the position of the steel coils which were involved in the subject collision. The steel coils involved in the collision were placed lengthwise on the line: that is the evidence of Frank Schoen, the Operations Manager of the defendant at the time, and I accept it. It is also the case that, even though some inconvenience would be caused thereby, any steel coils stacked on the line, including those involved in the collision, could have been removed from the line before any shunt began.
There seems to be no dispute that ANR had control over the shunt.
The first question to be answered is whether the defendant was negligent; there being no real dispute that it owed a duty of care to the plaintiff. I think, in all the circumstances, it was. It knew that the steel coils were an obstruction on the line at the time of the shunt and that, on an earlier occasion, a wagon had collided with steel coils on the line during the course of a shunt. It also knew that a shunter was likely to be riding on the wagon in the position of the plaintiff or that a shunter would be in the area of the steel coils during a shunt: Steven Price gave evidence, which I accept, that, prior to the day of the accident, he had seen shunters riding the wagons in the same position as the plaintiff was doing on this occasion and McInnis said that the shunters sometimes rode the lead wagon and sometimes walked. I think, in the circumstances, it was reasonable for the defendant to foresee that a shunter could be hurt during the course of a shunt because of wagons colliding with steel coils stored on the line, whatever the reason for the collision might be. It was not difficult for the defendant to remove the steel coils from the line before a shunt began. It is true that it was a matter of inconvenience, but it was no more than that; and, in all the circumstances, I think it was appropriate for it to remove the coils from the line before a shunt began. The next question is whether the plaintiff was guilty of contributory negligence. I think he was.
The plaintiff was aware of the presence of the steel coils on the line: his attention had been drawn to them as the wagon on which he was travelling entered the shed and, thereafter, he had them under observation as the wagons made their way towards them. The plaintiff was aware that radios should not be used in the warehouse for communication with drivers of the locomotive. He also knew that communication from within the warehouse by the shunter to the locomotive driver should be by way of hand signals. He used the radio and it failed. He should have known that it was unsafe to use it. He did not make any hand signals. The breakdown in communication between the plaintiff and the driver of the locomotive was a significant factor in the accident.
I have wondered why the plaintiff did not alight from the step on which he was standing before the collision. He gave reasons for this in evidence saying that it was difficult for him to get off the step because of the position in which he was standing, that the ground on which he would have landed was uneven and that he was worried that, in those circumstances, some part of his body might thereby be caught under the wagon. I did not find those reasons convincing: once again, I thought he was engaging in reconstruction and, as I have said, I do not accept his evidence as to his position on the step. There must have been a time when he realised that, having given the direction to stop, the direction which did not get through, the train was not going to stop. It is difficult to be critical of the plaintiff for not alighting from the wagon before the impact; perhaps, in the agony of the moment, he froze; perhaps he was being inattentive. On the material before me, I am unable to say.
In considering the question of contributory negligence, I have borne in mind the distinction between the plaintiff’s negligence on the one hand and the system of work provided by ANR on the other.
I think justice will be done between the parties if I apportion responsibility for the accident 50% to the plaintiff and 50% to the defendant. The plaintiffs will receive 50% of their damages as assessed; and I now move to that topic.
The plaintiff was born on 24 April 1968. He was educated to Year 11 standard. After leaving school, he worked on the railways; as a station assistant performing general station duties, including a stint at Tarcoola, and as a shunter. He commenced working at Dry Creek as a shunter in January 1993, having returned from Tarcoola to be with the second defendant and his daughter in Adelaide.
In the accident, the plaintiff sustained a large, crush injury to his left thigh involving degloving of the skin on the anterior and medial aspect of the thigh and gross muscle damage in the same area. Immediately after the collision, he remained pinned between the carriage and the steel coil for about 2 minutes before the locomotive was reversed to free him. During that time, his leg felt numb, although he was aware of a feeling of wetness in the area of his body where he was pinned. After he was released from the position where he was pinned, he was treated at the scene and then taken to the Queen Elizabeth Hospital by ambulance.

On admission to the Queen Elizabeth Hospital, surgery was performed on the plaintiff’s leg. Extensive skin grafting took place. He remained in the Queen Elizabeth Hospital for a time, during which further surgery was performed to debride necrotic muscle and fatty tissue and replace it with split skin grafting. Subsequently, he was transferred to the Hindmarsh Private Hospital where he underwent further skin graft surgery. While in the Hindmarsh Hospital, he developed a genito-urinary complication: the products of the muscle death were excreted by his blood and kidneys. After about 5 to 6 weeks in hospital, he was discharged to his home. He and the second plaintiff and their small child were living with his mother in her home. His father had died about 3 months before the accident and he and his wife had moved from their rented accommodation to be with his mother.
On his discharge from hospital, the plaintiff’s damaged left leg was bandaged and the bandages required to be changed daily; the affected area being cleaned before being re-bandaged. The district nurse showed the second plaintiff how to do it and, thereafter, over a period of about 8 months she did it for him. Towards the end of that period, the bandaging became lighter and he was able to do it himself.
During the first few months after his discharge from hospital, the plaintiff was dependant on the second plaintiff for the daily job of living; at first, totally dependant, becoming less dependant as the healing process occurred.
In August 1994, the plaintiff returned to the Hindmarsh Hospital for further surgery; a further skin graft was performed. He developed an infection in the affected area and a drain was inserted. The infection involved gross swelling of his leg and the frequent and regular aspiration of large quantities of fluid. Once again, bandages were applied to his leg and required frequent changing with the affected area being cleaned on each occasion before being re-bandaged. This went on for about 6 weeks. It took about two months for the affected area to heal.
The plaintiff returned to work about 8 months after the accident. He had been moving about on crutches to about the time he returned to work, walking with the aid of a stick on his return. He returned to what was called clerical work, but, basically, he did no more than sit around. After about 8 months in this position, in the ganger’s office, he worked for about a year as a flag man on the standardisation of the rail-line in the metropolitan and near metropolitan areas, and then it was back to the ganger’s office and the performance of various odd jobs.
The plaintiff’s employment with ANR was terminated on 14 March 1997. He received a redundancy payment of $32,000.
During his period of absence from work because of his injury, the plaintiff received weekly payments of compensation. At other times, his wage was made up by weekly payments of compensation. He currently receives 75% of his wage by way of payments of compensation. He has received a lump sum payment of workers compensation for what he calls ‘pain and suffering’ of just over $40,000.
The plaintiff has not been employed since his employment with ANR was terminated. In 1997, he purchased some land, 5 acres, near Owen and planted walnuts, macadamias and pistachios; 120 trees in all. The orchard has not yet produced a crop. He did the planting himself, taking his time and resting when he felt the need. He hopes to make a profit from the orchard in due course. I am unable to say what the likelihood of that might be and, if it came to pass, the level of such profit. As I understand it, the land was purchased out of the redundancy money and would probably have been purchased regardless of whether the plaintiff had suffered an injury or not.
The plaintiff has not applied for any job since his employment was terminated. He has some contacts in the fishing industry people who work on trawlers and he has contemplated the possibility of getting work in that area; but, on the whole, apart from keeping an eye open for work opportunities he has not sought work. He spends his time about the house and visiting his orchard. He has an interest in renovating old motor cars and has spent much of his time doing that. The second plaintiff works night shift and he attends to the children in her absence. He does some of the household chores, but my sense is that the bulk of those chores are performed by his partner; apparently, somewhat to her chagrin. It is not my understanding of the evidence that he only does the domestic chores he is physically capable of performing.
The injury to the plaintiff’s left leg was horrific and he has undergone considerable pain and suffering; particularly in the first few months. The pain commenced immediately after he was released from the position in which he was pinned and, thereafter, was unremitting. Not only did he suffer the pain at the site of his injury, the donor sites for skin grafts proved to be painful as well. The daily changing of the bandages and cleaning of the affected area was particularly painful.
The plaintiff’s anguish at what happened to him was great; and it is not surprising that there have been ongoing emotional and psychological problems. He suffers from a post-traumatic stress disorder; although to a significantly less degree now than previously. Nevertheless it’s affect lingers. There has been a change in his mood and demeanour. Prior to the accident, he was an active, social person interested in being with his family and friends. He enjoyed physical activity and played the drums in a Greek band. Since the accident, he has become something of a recluse, spending his time about the home working on his cars and his orchard and rarely engaging in social activity. He has become intolerant with his wife and two small children, quick to temper and easily frustrated. He no longer plays the drums.
The accident is never far from the plaintiff’s mind. In the early months after the accident, he experienced nightmares and, even today, distressing thoughts of the accident, in whatever form, are not far away. His scarring and other disabilities are an ever-present reminder.
As might be expected, the plaintiff’s scarring is substantial. It is not putting it too highly to say that the appearance of the anterior aspect of his left thigh is ugly. It’s ugliness attracts attention. He keeps it covered as much as he can. He is acutely embarrassed by it; and it is a constant reminder to him of what happened to him. There is also a scar about 8 cm long on the posterior aspect of the thigh. The scarred areas are sensitive to touch and he avoids physical contact with people for that purpose. The scarring inhibits him in his handling of his children and is a constant source of difficulty in his sexual relationship with his wife; although it should be said that his partner does not complain of any decrease in sexual activity and their second child was conceived within two or three months of the accident.
The plaintiff walks with a pronounced limp. His gait causes him pain in his lower back and hips. His leg sometimes gives way. He gets cramp when sitting. He is stiff when rising from a sitting position. He must be careful when walking on uneven ground. He has trouble climbing. He gets shooting pains in his leg.
The plaintiff’s disabilities of his left leg are compounded by pain he experiences in his left knee. As a result of the injury, he has a loose fragment of bone over the medial femoral condyle and some ligament laxity. The condition of the knee causes him pain and stiffness in the knee. It is ‘very sensitive’ and movement creates a feeling of ‘bone on bone’.
Every now and then, the plaintiff experiences a feeling of incontinence. As I understand it, he experiences a sensation of having urinated, but finds, on checking, that he has not. Sometimes, he is unable to urinate when he wishes to.
So far as future treatment is concerned, further surgery on the plainitff’s left leg would improve it’s cosmetic appearance. The surgery would involve the removal of some of the skin graft and a tightening of the skin on the thigh. Such surgery would result in an improved cosmetic appearance, but I think the scarring would still be significant. The bony injury to the medial femoral condyle could be rectified by surgery.
Whether the plaintiff undergoes any further treatment or not, his capacity for work has been severely restricted. As a result of the injuries sustained by him in the accident, including the residual affect of the post-traumatic stress disorder, he is not fit for work which involves him in working with or near heavy machinery, lifting, prolonged standing, prolonged sitting, prolonged walking and moving about on uneven ground. He is fit for work of a sedentary nature where he can sit, stand or move about as he wishes. He would need a sympathetic and understanding employer.
The second plaintiff claims a declaration that she is the putative spouse of the plaintiff. She does this in order to pursue the claim for loss of consortium.
S11(1) of the Family Relationships Act, 1975 (‘the Act’) provides as follows:-
‘11. (1) A person is, on a certain date, the putative spouse of another if he is, on that date, cohabiting with that person as the husband or wife de facto of that other person and-
(a) .. he-
(i) ... has so cohabited with that other person continuously for the period of five years immediately preceding that date;
or
(ii) . has during the period of six years immediately preceding that date so cohabited with that other person for periods aggregating not less than five years;
or
(b) .. he has had sexual relations with that other person resulting in the birth of a child’.
The plaintiffs were living together at the time of the accident and had done so on and off over a period of years before that; a period of cohabitation which, on the evidence, I am not able to specify. A child was born to the relationship in April 1992. This means that the second plaintiff qualifies under s11(1) of the Act to be declared the putative spouse of the plaintiff as at the date of the accident; and I so declare. She is, therefore, entitled to claim damages for loss of consortium.
The law in this State entitles a person in the position of the second plaintiff to damages for the loss or impairment of the consortium of a spouse: s33 Wrongs Act, 1936. The action is one for the loss or impairment of the domestic services, comfort, society and fellowship of the spouse: Toohey v Collier 92 CLR 618; Meadows v Moloney 4 SASR 567.
On the material before me, I am not satisfied that the second plaintiff has suffered any loss or impairment of the consortium of the plaintiff as a result of the injuries sustained by him in the accident such as to entitle her to damages for loss or impairment of consortium. It is true that there has been a change in the plaintiff’s mood and demeanour as a result of the injuries sustained by him and, as a result, he is probably more difficult, or not as easy, to live with than he was before; but, by itself, that is not sufficient to justify an award of damages under this head. On the evidence, no real distinction emerges between the plaintiff’s performance of domestic chores before the accident and after the accident. It is true that the second plaintiff complains about his performance of these things and that this is a source of frustration and annoyance with him on her part; but there is nothing on the evidence on which I could rely to be satisfied that his level of performance of domestic chores after the accident is significantly different to that which it was before the accident. The plaintiff’s evidence suggests he does more since the accident. He is certainly about the house more than he was before the accident. The second plaintiff also complains about the plaintiff’s change in temperament since the accident, lack of interest in certain social activities which previously interested him and his unwillingness or inability to engage in certain social activities with her and the children because of his physical disabilities; but, as she conceded, their lives had become less socially active after the birth of their first child. There is no suggestion that the sexual relationship between the plaintiffs has been interfered with in any significant way since the accident, notwithstanding that the scarring which the plaintiff has on his left thigh can provide a level of discomfort. I mention that a child, Amy, was born to the relationship in May 1994. The second plaintiff is not entitled to recover damages if the plaintiff substantially performs all the services he did before, even though he might now perform them ‘with a scowl rather than a smile’: Keally v James [1979] 1 NSWLR 723 @ 746. The second plaintiff’s claim for damages for loss of consortium will be dismissed.
It is agreed that, to the time of the termination of the plaintiff’s employment with ANR, his past economic loss amounted to $61,862.00. It is also agreed that, at the time of the termination, the plaintiff’s rate of pay was $522.09 gross per week. It is also agreed that, at the time of the injury, the plaintiff had been working 6 hours 53 minutes of overtime per week. The amount of $522.09 contains no allowance for overtime.
In assessing the damages for past economic loss for the period 14 March 1997 to date, I will take into account both gross figures and net figures: as I have said, since the date of termination of his employment, the plaintiff has been receiving weekly payments of compensation at the rate of about 75% of his wages. A component of that sum will, therefore, attract interest; but only of a modest amount. In assessing damages for past economic loss, I will make allowance for the possibility that the plaintiff would have been out of work for some of the time between the date of the termination of his employment and the present time in any event for reasons not associated with his injuries.
Counsel have agreed that the prescribed amount under the Wrongs Act for the purpose of assessing the plaintiff’s damages for non-economic loss is $1,390.
Special damages have been agreed at $18,750.00.
Damages for the gratuitous services rendered by the plaintiff’s wife have been agreed at $1,000.
Future medical expenses have been agreed at $3,281.00.
Doing the best I can, I assess the plaintiff’s damages as follows:-
Damages for non-economic loss
(I ascribe a numerical value of 35) $ 48,650.00

Damages for past economic loss $105,000.00

Damages for future economic loss $225,000.00

Special damages $ 18,750.00

Future medical expenses $ 3,281.00

Allowance for gratuitous services $ 1,000.00

Interest $ 1,000.00

Total $402,681.00

There will be judgment for the first plaintiff in the sum of $201,340.50, which sum includes interest.
The claim of the second plaintiff for consortium will be dismissed.
I shall hear counsel as to costs.

[2000] SADC 54

19 April 2000