Langdon John Palmer, Elizabeth Mary Palmer and Brenton Scot Palmer v Marcus Alistair James Brownlie No. 4160 Judgment No. SCGRG 92/1087 Number of Pages 20 Negligence Damages

[1993] SASC 4160

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA BURLEY J

CWDS
Negligence - Motor vehicle collision - at junction - failure by defendant to see plaintiff's vehicle - failure by defendant to give way - contributory negligence alleged - defendant held to be l00 per cent responsible. Duurland v Hagestrom (1965) SASR 196, distinguished. Cambell v Nangle (1985) 40 SASR 161, discussed.
Damages - Fracture dislocation of right hip - sciatic nerve lesion - plaintiff aged 54 - builder - in partnership with wife and son - permanent disability - unable to carry out physical work - claim by 3 plaintiffs for economic loss - method of assessing economic loss damages assessed as follows:-
    First Plaintiff   $
     Non-economic loss   31,000.00
     Loss of earning capacity:
        Past   48,000.00
        Future   100,000.00
     Medical expenses
        Past   10,271.43
        Future 8,500
             17,500
             26,000  26,000.00
     Gratuitous services   5,800.00
     Future Care  45,000.00
     Loss of Consortium   12,500.00
Wronqs Act 1936 (SA) s. 34. Rolton v Dalqety Farmers Ltd. (1992) 58 SASR
581 and Cole v Ellis (1992) 167 LSJS 35, applied.

HRNG ADELAIDE, 23-27 August 1993 #DATE 10:9:1993
Counsel for plaintiffs:     Mr. R.A. Cameron
Solicitors for plaintiffs:    Scales and Partners
Counsel for defendant:        Mr. P.W. Eriksen
Solicitors for defendant:     Ward and Partners

ORDER
Damages assessed.

JUDGE1 BURLEY J The plaintiffs claim damages in respect of personal injuries sustained by the 1st plaintiff in a motor vehicle accident on 29th June 1990. Both liability and quantum are in dispute. LIABILITY
2. A collision occurred between a motor vehicle driven by the 1st plaintiff and a motor vehicle driven by the defendant on the 29th June 1990 at the junction of Happy Valley Drive and Taylors Road Aberfoyle Park. Prior to the collision the plaintiff was driving his motor vehicle in a southerly direction along Happy Valley Drive towards the junction. The defendant had driven in a westerly direction along Taylors Road towards the junction and came to a stop. It is common ground that the defendant was obliged to give way to traffic proceeding in a southerly direction along Happy Valley Drive. Photographs of the junction, exhibit P3, were tendered in evidence by the plaintiffs. They show that the point at which the western end of Taylors Road meets Happy Valley Drive is a large open intersection and that, in particular, the driver of a vehicle heading south along Happy Valley Drive has a clear view of the western end of Taylors Road. 3. The 1st plaintiff in evidence said that the area immediately to his left as he proceeded south along Happy Valley Drive towards the junction was an open paddock with a number of trees in it. He said that the trees shown in exhibit P3 in that paddock have grown since the collision and that on the day of the collision there was no real obstruction to his view to the left and along the western end of Taylors Road. The defendant did not give evidence to the contrary. Happy Valley Drive, at and to the north of the junction, consisted of two carriageways, one for north bound traffic and one for south bound traffic. At the north eastern corner of the junction an additional left hand turn lane was provided for south bound traffic turning left into Taylors Road. In the middle of the junction there was marked on the road by painted lines a lane providing for north bound traffic along Happy Valley Drive turning right from Happy Valley Drive into Taylors Road. North of that lane and immediately to the north of the junction was a painted area which tapered to the north to a point where the two carriageways were separated by a white painted line. 4. The 1st plaintiff said that prior to the collision he had been travelling in a southerly direction along Happy Valley Drive at about 70 kph. It was common ground that the speed limit for traffic travelling north and south along Happy Valley Drive was 80 kph. He said that he saw the defendant's motor vehicle travel west along Taylors Road and stop prior to entering the intersection. He continued in a southerly direction along Happy Valley Drive. According to the 1st plaintiff the defendant's vehicle stopped only momentarily prior to entering the junction. It then proceeded in a westerly direction across the eastern carriageway of Happy Valley Drive right across the path of the plaintiff's vehicle. The 1st plaintiff said that he had expected the defendant to remain stationary at the junction to enable him to pass in front. He said that when the defendant drove into the junction the distance between the two vehicles was such that he had no hope of avoiding a collision. He said that he did not turn to his right for fear of colliding head-on with north bound traffic and he did not have time to veer to his left. The 1st plaintiff said that all he could do was apply his brakes with as much force as possible and try to avoid hitting the front or rear axles of the defendant's vehicle. At the time the collision occurred the defendant's vehicle had progressed so that it was across the eastern carriageway of Happy Valley Drive. The front of the first plaintiff's vehicle collided with the side of the defendant's vehicle at a point roughly mid-way between the two axles of the defendant's vehicle. 5. The defendant said that prior to the collision he had proceeded west along Taylors Road towards the junction and came to a stop at the junction. He noticed, as did the first plaintiff, that north-bound traffic along Happy Valley Drive was heavy. He said that he was stopped at the junction for two or three minutes and that he looked to his left and to his right and to his left again before entering the junction. When he looked to his right he said that he did not see the vehicle being driven by the first plaintiff. If he looked to his right and then to his left immediately prior to entering the junction, it would mean, because the collision occurred as soon as the defendant entered the junction, that the first plaintiff's vehicle was relatively close to the junction. In the absence of anything obscuring the defendant's vision, it seems to me that the first plaintiff's vehicle was there to be seen by the defendant. 6. The defendant was adamant that he did not see the other vehicle prior to the collision. He said that, at the time, it was overcast, light rain was falling and there were patches of fog to the north of his position. 7. There are three possible explanations for the failure by the defendant to see the first plaintiff's vehicle: first, darkness or poor light prevented the defendant from observing the first plaintiff's vehicle travelling south along Happy Valley Drive; second, that the passage of the first plaintiff's vehicle along Happy Valley Drive was obscured by fog between the two vehicles; and, third, that the defendant did not look to his right immediately prior to entering the junction. 8. Although the defendant did not at any stage say that he was unable to see the first plaintiff's vehicle because of darkness, he did assert that light rain was falling immediately prior to and at the time of the collision and it was acknowledged by the first plaintiff in his evidence that conditions were overcast at the time. The defendant said that the collision occurred at 7.20 or 7.22 a.m. and the effect of the first plaintiff's evidence was that the collision occurred a few minutes after 7.30 a.m. The plaintiffs proved that sunrise on that day took place at 7.25 a.m. The defendant said that all of the cars proceeding north along Happy Valley Drive had their headlights on. The first plaintiff said that only some of the cars travelling north along Happy Valley Drive had their headlights on. He admitted that he did not have his headlights on. The defendant said that the headlights on his vehicle were still in operation prior to the collision. Given the material differences between the first plaintiff's and the defendant's evidence as to the time of the collision, I must therefore determine the reliability of the evidence of the first plaintiff and defendant in that regard. 9. The defendant was cross-examined at length on this topic. He was elaborate in his explanation as to why he thought the collision occurred at 7.20 or 7.22 a.m. He said that as soon as he got out of his vehicle he looked at his watch because he realised that it would be important to remember the time at which the collision took place. He said that he had previously been involved in an accident where he had to fill out a report in relation to the accident and it was this that prompted him to be careful about noting the time of the collision on this occasion. However, during the course of his cross-examination, a document consisting of a motor vehicle accident report was put to him (exhibit P13). It contained a section which the defendant admitted completing. The defendant wrote in his own handwriting on that form that the accident occurred at 7.36 a.m. At the end of the document it contained the paragraph:- "We declare the foregoing particulars to be true in every respect to the best of our knowledge, information and belief." 10. The defendant signed the form immediately below that paragraph. In cross-examination the defendant was asked whether anything had occurred between the filling out of the form (which was dated 2nd July 1990) and the time of giving evidence at trial which caused him to change his mind about the time of the accident. The defendant said that nothing had occurred but he insisted in evidence at trial that the accident occurred at 7.20 or 7.22 a.m. rather than at the time shown on the accident report. I find his evidence unconvincing in this regard. It is far more likely that his recollection as to the time of the accident as at 2nd July 1990 is more reliable than his recollection at trial. I reject his evidence that the accident occurred at 7.20 or 7.22 a.m. I find that the accident occurred at approximately 7.36 a.m. It is consistent with the evidence of the plaintiff that he left home shortly after 7.30 a.m. on the morning of the accident and that he had driven only a relatively short distance from home when the accident occurred. 11. I consider that the defendant's evidence that all of the traffic proceeding north along Happy Valley Drive had their headlights on is tainted by a similar favourable reconstruction of the events of the accident. I accept the plaintiff's evidence that only some of the vehicles travelling north along Happy Valley Drive had their headlights on. I find that the conditions were overcast at the time that the collision occurred and that the natural light was such that the vehicles travelling along Happy Valley Drive and Taylors Road were clearly visible to each other in the absence of any other obstruction such as fog. I base on my findings not only on the unsatisfactory nature of the defendant's evidence, but also upon the fact that I have found the 1st plaintiff to have been a truthful witness. 12. As to the defendant's assertion that prior to moving into the junction his vision to the right was obscured by fog, I consider this to be another example of the defendant's reconstruction of events in order to explain his failure to have seen the plaintiff's vehicle prior to the collision. I accept the 1st plaintiff's evidence that his view of the defendant was not obscured by fog and it must follow that, had the defendant looked in the 1st plaintiff's direction, his view of the 1st plaintiff's motor vehicle would not have been obscured by fog. 13. In making the above findings I have not felt the need to rely upon the plaintiffs' contention that the defendant did not call as a witness the passenger in the defendant's vehicle, a Mr. Gordon Doley. It may have been that Mr. Doley could have given material evidence in relation to the circumstances of the collision but I do not need to speculate in this regard because I have found, in any event, the defendant's evidence to be unconvincing. 14. It is clear from the above findings that had the defendant looked to his right prior to entering the junction, he would have seen the first plaintiff's vehicle. If he did not look to his right before entering the junction, it was clearly negligent of him to have failed to do so. As a matter of law he was obliged to give way to traffic coming from his right. He failed to do so. I consider that, on the balance of probabilities, the defendant failed to look to his right before entering the junction. I make this finding because it is evident that the first plaintiff's vehicle must have been quite close to the defendant's vehicle when the defendant moved into the junction, because the collision occurred at a point where the defendant's vehicle was completely in front of the path of the first plaintiff's vehicle. If the defendant took approximately one second to proceed from the stationary position to the point where the collision occurred, then the first plaintiff's vehicle would have been no more than 20 metres or so from the point of collision. If the defendant took two seconds to reach the point of collision from the stationary position then the plaintiff's vehicle would have been no more than 40 metres from the point of collision. Given that the plaintiff said that the defendant moved into the junction at a point when he had no means of avoiding the collision, evidence which I accept, it is more likely that the distance separating the vehicles was closer to 20 metres rather than 40 metres. I also bear in mind the 1st plaintiff's evidence that when the defendant's vehicle moved into the intersection, his vehicle was approximately 40 to 50 feet from the defendant's vehicle. That being the case I consider it more likely than not that the reason for the failure by the defendant to see the first plaintiff's vehicle was that the defendant did not look to his right prior to entering the junction. 15. It follows from the above reasoning that the plaintiffs have established that the defendant was negligent in the driving management and control of his vehicle. The defendant has claimed that the first plaintiff was contributorily negligent. The onus is with the defendant to establish that contention. The particulars of negligence relied upon are set out in paragraph 6 of the more explicit defence. They are:-
    "The defendant says that the first plaintiff was
    negligent in that he: (a) Drove a motor vehicle without any
    lights operating on his vehicle at a time and in conditions
    when they should have been illuminated.
     (b) Drove in excessive speed in the weather conditions
    prevailing at that time.
     (c) Failed to keep a proper or adequate lookout.
     (d) Failed to stop, slow down, swerve or manoeuvre his
    motor vehicle so as to avoid colliding with the defendant's
    motor vehicle.
     (e) Drove his motor vehicle without due care or
attention." 16. In view of my findings as to the natural light immediately prior to the collision, I do not consider that the plaintiff was negligent in not having his lights in operation prior to the collision. In arriving at that conclusion, I distinguish Duurland v Hagestrom, (1965) SASR 196, relied upon by Mr. Eriksen, counsel for the defendant. In that case the failure by a motor-cyclist to have the headlight in operation occurred in conditions of dusk or half light. In this matter the light was much better. It may be that had he had his lights on, the defendant may have seen the 1st plaintiff's motor vehicle in his peripheral vision. However, that does not mean, in my view, that the 1st plaintiff was negligent in not having his headlights in operation. Mr. Eriksen, counsel for the defendant, submitted that the obligation to have headlights on differed, depending as to whether a vehicle was travelling north or south along Happy Valley Drive. Because traffic was heavy in the north-bound carriage, the importance of lights assumed a lesser significance to a driver stopped at Taylor's Road. It was obvious, he submitted, that the stream of north-bound traffic would be seen but not so obvious in the case of south-bound traffic because of the lack of density of such traffic. Whilst I agree in general that, in given circumstances such a submission may be of substance, I do not consider that it applies in this matter. Although overcast, the natural light was sufficient for direct observation. A driver is not, when the natural light is otherwise adequate, required to have headlights in operation for fear that another driver may not look in the required direction. I therefore do not consider that the defendant has established negligence as alleged in paragraph 6(a) of the defence. 17. As to paragraph 6(b) of the defence, I accept that conditions were overcast immediately prior to the collision and that the road surface was damp. I do not accept that fog was present between the two vehicles. In making those findings I rely upon the evidence of the plaintiff to that effect. 18. However, even assuming that light rain was falling at the time, I do not consider that the plaintiff's speed was excessive. I accept the plaintiff's evidence that he was travelling at 70 kph in an 80 kph zone and I hold that driving at that speed was reasonable in all the circumstances. 19. By paragraph 6(c) of the defence the defendant contends that the 1st plaintiff failed to keep a proper or adequate lookout. I reject this contention. It is clear from the evidence of the 1st plaintiff that he saw the defendant's vehicle draw to a halt at the intersection. The defendant agreed that he drew to a halt at the junction. In my opinion the collision did not occur because of a failure on the part of the 1st plaintiff to keep an adequate look out. Rather, it was the failure on the part of the defendant to keep an adequate lookout. 20. As to paragraph 6(d) of the defence, when the 1st plaintiff saw the defendant's vehicle stopped at the intersection, it was, in my view, reasonable for the 1st plaintiff to assume that the defendant's vehicle would remain stationary until the 1st plaintiff's vehicle had passed in front of the defendant's vehicle. In that regard I do not consider that it was necessary for the 1st plaintiff to stop or slow down. Mr. Eriksen submitted that, because the 1st plaintiff, when he saw the defendant, could see that the defendant was not looking in his direction, the 1st plaintiff should have slowed down and taken action to avoid the possibility of a collision. In failing to do so, he submitted, the 1st plaintiff was negligent. I do not accept this submission. I consider that the observations of King CJ in Campbell v Nangle (1985) 40 SASR 161 at 183.5 et seq. are apposite. I agree that the 1st plaintiff could see that the defendant was not looking in his direction, but it was, in my view, reasonable for the 1st plaintiff to assume that the defendant would look to his right before moving into the junction. Given the state of the north-bound traffic, a driver in the position of the defendant would direct most of his attention to that traffic. The fact that the defendant's attention, to the knowledge of the 1st plaintiff, was directed to the north-bound traffic was an ordinary occurrence. A prudent driver in the position of the 1st plaintiff would expect the defendant to look to his right before entering the junction. 21. I have previously indicated that I accept the 1st plaintiff's evidence that the defendant moved into the intersection at a time when the plaintiff had no opportunity to avoid the collision. I therefore do not consider the 1st plaintiff to have been negligent in failing to swerve or manoeuvre his vehicle so as to avoid the collision. 22. As to paragraph 6(e) of the defence, for the reasons given above, I do not consider that the defendant has established that ground of negligence. 23. For the above reasons I hold the defendant to have been totally responsible for the occurrence of the collision. DAMAGES

24. As a result of the collision the 1st plaintiff (whom I shall refer to as "the plaintiff") sustained a comminuted double column fracture of the acetabulum with associated fracture-dislocation of the right hip joint which spontaneously relocated. In addition, the plaintiff sustained a number of abrasions and small lacerations to the head. He was conveyed from the accident scene by ambulance to the Flinder's Medical Centre where he remained until 11th July 1990 under the care of Mr. Bradley, orthopaedic surgeon. He was then transferred to the Griffiths Hospital and later to the Blackwood Hospital. In the latter half of August 1990 he was admitted to the Repatriation General Hospital at Daw Park and thereafter returned to the Blackwood Hospital. 25. The abrasions and lacerations were dressed and treated at the FMC and these healed without event. 26. Initially the hip fracture was treated by simple skin traction and analgesics followed by a progressive active non-weight bearing mobilisation program including hydrotherapy and physiotherapy. A right-sided sciatica was noted. On 20th August 1990 an operation was carried out at the Repatriation General Hospital by Mr. Bradley who internally fixed the posterior column of the right acetabulum. He also freed the right sciatic nerve. The plaintiff was discharged from the Repatriation General Hospital on 26th August 1990 and received post-operative care at the Blackwood Hospital. Mr. Bradley continued to see the plaintiff during the remainder of 1990 and the beginning of 1991. 27. The plaintiff continued to experience trouble with the sciatic nerve and he also suffered right-sided bursitis in relation to the surgical wound, but this resolved. 28. The right hip joint remained irritable and the plaintiff took anti-inflammatory medication and analgesics. As at April 1991 Mr. Bradley was of the view that the plaintiff had sustained a serious injury to the right hip which caused continuing irritability in the joint. He thought that the sciatic nerve injury was likely to be a persistent feature over an extended period and possibly permanently. 29. In March 1991 there was a sudden deterioration in the function of the right hip and when this was investigated it was found that there was a vascular necrosis of the right femoral head. It was then necessary for the plaintiff to have a total hip replacement. This was carried out by Mr. Bradley on 8th June 1991. This resulted in a reduction of pain and disability although the previous problem of neuralgia continued. 30. Mr. Bradley was of the view (as were the other medical practitioners who either gave evidence or whose reports were tendered) that there was a likelihood that the plaintiff would have to have two further revisions of the initial hip replacement in the future. I accept all of Mr. Bradley's evidence. 31. The plaintiff was seen by Mr. Anthony Pohl, orthopaedic surgeon, for the purposes of providing a medico-legal report. He saw the plaintiff on 9th June 1992. On examination Mr. Pohl noticed that the plaintiff walked with a limp. He noted a restriction of movement to the right hip. He said that sensation was altered in the right leg over the inner and outer thigh area as well as the inner and outer portion of the lower leg and foot. There was a weakness with eversion of the right foot but there was normal inversion, dorsi-flexion and plantar flexion. He thought that it was unlikely that there would be further improvement with the plaintiff's neurological symptoms and that he had a disability in the order of 30% permanent physical impairment and loss of physical function to the lower right leg. I accept Mr. Pohl's evidence. 32. The plaintiff was seen by Mr. Ingman at the request of the defendant. It was evident to Mr. Ingman that by virtue of the onset of rapid degenerative change in the hip the hip replacement operation was necessary. He noted the sciatic nerve lesion and said that this was responsible for intermittent stabbing pains involving various areas of the right leg. The condition also caused weakness and sensory loss on the lower part of the right leg. He thought that the plaintiff was fit only for light work. He allowed for the fact that it would be necessary for the future for further hip replacements to be performed. He thought that the plaintiff had sustained a 25% loss of function in the right leg. With some qualification (referred to later in these reasons) I accept Mr. Ingman's evidence. 33. The plaintiff called Mr. Raptis who is a vascular and general surgeon. His prognosis was more gloomy than that of the orthopaedic surgeons. He thought that in a few years the plaintiff may be relegated to a state of semi-invalidity and that he would get progressively worse from there. In taking a more moderate view, he thought that, in any event, the plaintiff would not be able to live at home without assistance at a point much earlier in his life than otherwise would have been the case because of the hip injury. I shall return to this conflict in the expert evidence later in these reasons. 34. As I have previously indicated, I accept the plaintiff as a witness of truth. There is no doubt that he sustained a serious injury to his right hip in the accident and that he has had to undergo a great deal of treatment including a number of operations. The plaintiff gave quite detailed evidence of the course of his treatment and subsequent rehabilitation. The injury and the treatment that he was required to undergo was, for much of it, extremely painful. He bore this pain with great courage. Nevertheless it is clear from his evidence that his life has been changed substantially and permanently. Prior to the accident he was a fit strong man and who spent a great deal of his working life involved in heavy physical work. Since the accident he has been severely disabled as a result of the hip injury and sciatic nerve impairment. He has progressed from the point where he was unable to walk to the point where he is now able to walk but must still do so over uneven ground with the aid of a walking stick. He suffers constant pain in the hip joint and in the leg, the latter being the result of sciatic nerve impairment. He needs to take strong analgesics regularly for the relief of pain. He is markedly affected by his inability to engage in physical work or any physical activity. It is clear from the evidence of the plaintiff and that of his wife that his sexual relationship with his wife has been adversely affected and that his social life has been considerably diminished. He has, not surprisingly, been depressed from time to time and he is now much more impatient with his family and others than he was prior to the accident. His inability to work as he did prior to the accident has, in a substantial way, detracted from his enjoyment of life. It is evident from the way in which he attempted, after the accident, to continue to run the business of a builder, which he carried on in conjunction with his wife and son, that he was determined to keep the business going and participate in it as much as possible, despite the additional pain and suffering that it caused him and has continued to cause him. I accept the evidence of all three plaintiffs as to the plaintiff's pain, suffering and disability after the accident. They were all impressive witnesses of truth. 35. I am required by the provisions of section 35a of the Wrongs Act to fix a multiplier for the purposes of ascertaining damages for pain and suffering. Whilst I bear in mind the various opinions of the medical practitioners as to percentage disability, I also take into account the devastating affect the injury has had upon the plaintiff's life some aspects of which are referred to later in these reasons. I consider that the appropriate multiplier is 25. It was common ground that the prescribed amount is $1240. Consequently I allow $31,000 for pain and suffering. 36. The assessment of damages for loss of earning capacity in this matter is not a simple task. At the time that the accident occurred, and at all times thereafter, the three plaintiffs have carried on the business of builders in partnership. There is no formal partnership agreement, although it is evident that the profits of the business are shared equally between them. Prior to the accident the plaintiff and his son (the 3rd plaintiff) worked actively in the partnership and Mrs. Palmer (the 2nd plaintiff) was responsible for some aspects of the bookkeeping, answering the telephone and such other matters that she might do from home. Because the plaintiffs were and remain in partnership, each of them has claimed damages in respect of the loss of earning capacity sustained by the plaintiff as a result of his injuries. It is clear that Mrs. Palmer may make a claim in that regard pursuant to the provisions of section 34 of the Wrongs Act. At trial, Mr. Cameron, counsel for the plaintiffs, said that, whereas each of the three plaintiffs pursued their claim for damages arising out of the 1st plaintiff's loss of earning capacity, he accepted that I was bound by the decision of the Full Court in Rolton v. Dalgety Farmers Ltd. (1992) 58 SASR 581. If the 3rd plaintiff were to pursue a claim for damages in respect of the 1st plaintiff's loss of earning capacity, as it affected the partnership, then I agree that such a course is not open to the 3rd plaintiff by virtue of the decision in Rolton. However, Mr. Cameron's primary submission in relation to economic loss was that, on the authority of Cole v. Ellis (1992) 167 LSJS 35, damages in respect of economic loss should be measured by reference to the cost of replacement labour and that such an assessment leads to a judgment in favour of the 1st plaintiff only in that regard. 37. Cole v. Ellis went on appeal to the Full Court: cf Cole v. Ellis unreported judgment number 3931. Bollen J, with whom Mohr and Millhouse JJ agreed, upheld the decision and reasoning of the trial Judge, Mullighan J. In that case the plaintiff carried on a business with his wife who was not a party to the proceedings. She did not make a claim under section 34 of the Wrongs Act. It was contended by the defendant that the measure of the economic loss sustained by the plaintiff was half of the loss sustained by the partnership as a result of the plaintiff being unable to work as he did prior to the accident. Mullighan J rejected that contention. Having exhaustively reviewed the authorities his Honour came to the conclusion that the fact that the plaintiff's wife may have a claim under section 34 of the Wrongs Act did not detract from the plaintiff's claim for damages for past loss of earning capacity. His Honour said at page 47:-
    "All of these cases illustrate the need to consider the
    nature of the partnership arrangements and the extent to
    which the earning capacity of the injured partner had been
    committed to the business of the partnership. The plaintiff
    and his wife entered into the partnership for reasons, to
    persons in this situation, namely to share income in order
    to minimise income tax. The plaintiff committed his labour
    to the partnership which was the sole source of income to
    the partnership, except in the limited sense which I have
    mentioned. In the circumstances, the starting point in
    assessing damages for past loss of earning capacity is, in
    my view, the total cost of replacing him as the diver, less
    the amount of income tax he would have paid and not the
    share of the profits from the partnership which, but for the
    accident, he would have received." 38. As to the effect of section 34 of the Wrongs Act his Honour said at page 48:-
    "In my view the purpose of this section is clear. It
    gives a right to compensation in the prescribed
    circumstances. It does not affect the rights of the injured
    spouse. Of course a wrong doer cannot be required to pay
    compensation for the same loss twice. If both spouses make
    claims which overlap, the Court would take care, in
    assessing compensation, to avoid that result. Here there is
    only one claim before the Court, the plaintiff's claim for
    past loss of earning capacity. The issue is how to measure
    that loss. Section 34 does not, in my view, bear upon that
    issue. The fact that Mrs. Cole may have a right to
    compensation cannot affect the right of the plaintiff. The
    section should not be interpreted as providing a limitation
    on the right to compensation by the plaintiff or to the way
    in which his loss of earning capacity is to be measured." 39. In view of the fact that the plaintiffs' primary claim for damages for economic loss is a claim by the 1st plaintiff only for such damages, it seems to me that the approach taken by Mullighan J, with appropriate modifications to allow for the different circumstances of this case, may be taken. If such an approach is taken then it must follow that the alternative claim respectively by the 2nd and 3rd defendants for damages based on the loss of earning capacity sustained by the 1st plaintiff, must be dismissed. If that occurs then there is no question that the 2nd plaintiff is precluded from making a claim pursuant to section 34 of the Wrongs Act because the dismissal of her claim in these proceedings to that effect is res judicata. In addition, the dismissal of any claim that the 3rd plaintiff may have is determined in this action by the same way. 40. I accept Mr. Cameron's submission that it is appropriate to deal with the question of damages for economic loss in accordance with the principles enunciated by Mullighan J in Cole v. Ellis. However, some modification is necessary to suit the circumstances of this matter. 41. It is clear from the judgment that the cases draw a distinction between family and commercial partnerships. In Cole v. Ellis the partnership was between husband and wife. The contribution of the wife to the business of the partnership was relatively minor and produced no income. In those circumstances his Honour had no hesitation in holding that the proper reflection of the measure of the plaintiff's loss of earning capacity was the cost of replacement labour. It was his Honour's view that the work of the partnership was effectively done by the plaintiff and he was thereby, in reality, the only contributor to expenses. To award him damages for past loss of earning capacity by reference to the increased expense was not inequitable to the partnership because the expense was met, in reality, by the plaintiff. 42. The position is different with a commercial partnership. An instance of where the Court dealt with a commercial partnership is Zachopoulos v. SGIC
(1986) Aust. Torts Reports 80-023. In that case the plaintiff was one of five equal partners all of whom contributed their labour to the business of the partnership on an approximately equal basis. All partners shared equally the costs of employing substitute labour. Mullighan J in Cole v. Ellis agreed that the cost of the partnership of employing such labour could not be equated with the plaintiff's loss of earning capacity. The Full Court in Zachopoulos held that the proper measure of the plaintiff's loss was the extent of his diminished share of profit. It seems to me that a comparison of Zachopoulos and Cole v. Ellis gives rise to the need to make a distinction between the two types of partnership. Where the partnership is commercial, each of the partners contribute to the expenses of the partnership. It would be quite anomalous to measure the extent of an injured partner's loss of earning capacity by reference to the total cost of replacement labour where the injured partner, if he is, for example, only one of three, contributed only a third of that expense. Loss of earning capacity must relate to the economic loss that flows from it. To assess an injured partner's loss by reference to a figure which, in the example given above, was three times his actual loss would be quite wrong. This is particularly so when the plaintiff would have no obligation to account to the other partners in respect of the damages he received for loss of earning capacity. Such damages would be awarded as a reflection of the injured partner's loss of earning capacity. The entitlement to damages is at best a chose peculiar to the plaintiff. The situation might be different if a specific partnership contained a term to the effect that where a partner was disabled for whatever cause, that partner was responsible for the total cost of replacement labour, but that is not the case here. 43. Does the partnership between the plaintiffs constitute a family or a commercial partnership? It is a family partnership in the sense that each of the partners is a member of the same family but I think that that is too superficial an approach. I consider that it is necessary to look at the actual workings of a partnership to see whether it is essentially a family partnership of the nature dealt with by Mullighan J in Cole v. Ellis or whether it is essentially a commercial partnership or has some commercial aspect to it. I have little trouble in finding that as between Mr. and Mrs. Palmer, the partnership is a family partnership. It is no different in kind between that considered by Mullighan J in Cole v. Ellis. However, the 3rd plaintiff is the son of the 1st and 2nd plaintiffs. He is in his early 30's and has worked for most of his working life in the partnership. It is appropriate to infer that he obtains an income from the partnership not by virtue of his relationship with his mother and father or by virtue of the need to enter into a tax minimisation scheme. Rather, his income is the product and measure of his own labour. In those circumstances I consider that the partnership is commercial at least as far as the 3rd plaintiff is concerned. I infer from the evidence of all of the plaintiffs, so far as contribution of income producing effort is concerned, that the 1st plaintiff's contribution is two-thirds and the 3rd plaintiff's contribution is one-third. It follows that the extent of the 1st plaintiff's contribution to expenses is two-thirds of the expense. I see no reason why, applying the principles Cole v. Ellis, damages for loss of earning capacity cannot be assessed by reference to the plaintiff's two-thirds contribution to that expense. It may, at the end of the day, be the same as the plaintiff making a claim for one-third and the 2nd plaintiff making a claim pursuant to section 34 of the Wrongs Act for another third, but it does not necessarily follow that the result would be the same. For example, it might be argued that the damages claimable by a spouse pursuant to section 34 constitute damages for loss of income in respect of the partnership business which may be taxable in the hands of such a plaintiff whereas the damages claimed by an injured partner, being damages for loss of earning capacity, are not taxable in the hands of the plaintiff. Be that as it may, the plaintiffs have elected to pursue a claim whereby the 1st plaintiff claims damages for loss of earning capacity in accordance with the principles in Cole v. Ellis. 44. Mr. Cameron contended that the measure of the plaintiff's loss of earning capacity was the whole of the cost of replacement labour. I do not agree with that submission. It may well have been the case had only Mr. and Mrs. Palmer been in partnership, but for the reasons given above I consider that the partnership was a commercial partnership between, on the one hand, Mr. and Mrs. Palmer and, on the other hand Brenton Palmer. In particular I have found that the 1st plaintiff's contribution to expenses represented two-thirds of the expenses and, applying by analogy the reasoning of Mullighan J in Cole v. Ellis, the proper reflection of his actual loss is two-thirds of the cost of replacement labour. To do otherwise would be to award the 1st plaintiff an amount, one-third of which did not reflect his actual loss and in respect of which he would not be accountable to the 3rd plaintiff. In other words he would recover one-third of the expenses which were paid for not by the 1st plaintiff but by the 3rd plaintiff. 45. Such an approach, in my view, is contrary to the reasoning of Mullighan J in Cole v. Ellis. 46. I turn to the assessment of damages for loss of earning capacity. 47. It was not contended by Mr. Erikson that the plaintiff had sustained other than a serious injury which permanently precluded him from engaging in physical work. After the accident, the partnership initially engaged casual labour to replace the labour that had previously been supplied by the 1st plaintiff and, later, permanent labour. The plaintiffs called Mr. Plummer a chartered accountant who gave evidence as to the measure of the plaintiff's economic loss. Exhibit P9 sets out a summary of his conclusions. It is apparent, and I so find, that for the financial year ended 30th June 1993, the partnership had employed a full-time labourer to replace the physical work that the 1st plaintiff was unable to do. He was paid a salary of $25,000. In addition, Mr. Plummer has made allowance for leave and sickness entitlements, superannuation and the provision of worker's compensation insurance. He also includes the sum of $10,365 to reflect what he has described as inefficiencies in the hiring of substitute labour to carry out work that the 1st plaintiff previously did. Whilst I accept that some small allowance must be made for such inefficiency in the past, the fact is that the partnership has had a full-time employee for over 12 months and his expertise in relation to the particular work undertaken by the partnership must by now be up to standard. I consider that the proper approach is to treat this aspect as being offset by the fact that the 1st plaintiff's labour contribution before the accident was marginally less than that of a full-time labourer. 48. The defendant called Mr. Campbell, a chartered accountant. 49. He was critical of the way in which Mr. Plummer had arrived at conclusions as expressed in exhibit P8, a report and accompanying documents prepared by Mr. Plummer. However it became apparent at the trial that the plaintiff was not pursuing the claim for economic loss based on the contents of exhibit P8. Rather, the plaintiff contended that his loss of earning capacity should be measured by reference to the cost of replacement labour. This is reflected in P9 and the evidence given by Mr. Plummer at trial. In that regard Mr. Campbell pointed out that when a comparison is made of the financial years ended 30.6.90 and the year ended 30.6.93 there is not a significant increase in direct wages. In other words, for the full financial year immediately prior to the accident the direct wages were $60,129 and for the financial year ended 30.6.93 the direct wages were $62,620. I took Mr. Campbell to argue that, based on those figures alone, it was apparent that an analysis of direct wages paid in the respective financial years did not give any clear indication as to the loss to the partnership resulting from the plaintiff's physical disabilities. This may be so, but I do not consider the point to be one relevant to an assessment of damages for loss of earning capacity in accordance with Cole v. Ellis (supra). The one constant factor since the occurrence of the accident is that the plaintiff has been unable to perform physical work. The plaintiffs' case is, and I so find, that the physical input to the performance of the partnership prior to the accident by the plaintiff was almost the equivalent of one full-time labourer. The measure of that loss for the year ended 30th June 1993 may be established with reasonable precision by reference to Mr. Plummer's evidence and exhibit P9. For the reasons given earlier I consider that the figure of $41,460 put forward by Mr. Plummer is too high. I think a proper starting point for that financial year is the sum of $31,000. That sum must be reduced by one third, giving a rounded off figure of $20,000. 50. It is also necessary to arrive at a figure for the financial years ended 30th June 1991 and 30th June 1992. The position is not so clear for these financial years because the records produced do not enable a figure to be ascertained with the same precision as the 1993 financial year. Doing the best I can with the information available to me I consider that the appropriate figures which reflect the loss of earning capacity by the plaintiff for the financial years ended 30.6.91 and 1992 (after a deduction of one third) are $18,000 and $19,000 respectively. I must also take into account that, had the partnership profits been derived without incurring the cost of replacement labour, the profit would have been increased and Mr. and Mrs. Palmer would have paid additional tax. Given that an award for past loss of earning capacity is not taxable in the hands of the 1st plaintiff, a deduction must be made from the aggregate sum of $57,000. The respective incomes of the partners for the last three financial years have been modest: cf exhibit P4. The additional income to Mr. and Mrs. Palmer would not have been taxed at more than 20%. I must make an addition to provide for loss during July and August this year. I allow to the 1st plaintiff an overall sum of $48,000 for past loss of earning capacity. 51. In assessing damages for future loss of earning capacity, the difference in opinion between the evidence of the orthopaedic surgeons and the evidence of Mr. Raptis assumes some significance. On the one hand, Mr. Bradley, Mr. Pohl and Mr. Ingman are of the view that so long as the hip replacement and any revisions thereof diminish the plaintiff's symptoms, the plaintiff will be able to continue with the non-physical work of the partnership business. This includes visiting customers and inspecting the site for the purposes of preparing quotes, the preparation of the quote, and supervision of the job once a quote has been accepted. Their views take into account the continuing neuralgia and the continued onset of the degenerative change in the hip. It seems to me to be clear from their evidence that with the effluxion of time the plaintiff will be less able to carry out even those duties. It is clear that the plaintiff has had in the past, and will continue to have, difficulties in negotiating uneven ground. He is unable to remain on his feet for any extended period and he is only able to walk relatively short distances. No improvement in this state of affairs is expected. On the contrary, the likelihood is that the plaintiff's ability to continue in the partnership doing other than physical work will gradually diminish. The plaintiff is now aged 54. According to the orthopaedic surgeons he may require another hip replacement within a period of 7 to 10 years and a further hip replacement a number of years after that. Mr. Raptis's view is much more pessimistic. He considers that it is possible that within a few years the plaintiff will be unable to work in any capacity as a result of his deteriorating condition. Whilst he recognises that subsequent hip replacements may have the effect of diminishing the symptoms of pain experienced by the plaintiff, he considers that the plaintiff may nevertheless, within a relatively short period of time, be unable to work. 52. Where there is a conflict in the medical evidence, the evidence of the plaintiff himself must be carefully looked at to see what view should be taken of the medical evidence and the opinions given by the various medical practitioners as to what is likely to occur in the future. It is clear that the plaintiff is determined to continue in the partnership business. He has done so in the past with great difficulty and I have no doubt that he will continue to do so in the future for as long as possible. He will do so even though the continued activity will increase the pain experienced by him Because of that I consider that the views expressed by the orthopaedic surgeons represent a more realistic appraisal of what the future holds for the plaintiff. The plaintiff will carry on under difficulty and I consider, on the balance of probabilities, that he will be able to participate in the business, as he has done in the past, until his early 60s. This will increase his pain and suffering and I have taken that into account when assessing damages for pain and suffering generally. 53. In light of the above conclusion, I must take into account that in assessing damages for future loss of earning capacity, the plaintiff will continue to work in the partnership on the limited basis that he has been able to achieve in the past, with his effectiveness gradually diminishing. This means that with the effluxion of time his earning capacity will deteriorate. I consider that the plaintiff would have, in the normal course of events, worked until aged 65, with a gradually decreasing input as to physical labour the closer that he got 28 to retirement age. I have found that it is unlikely that he will be able to work in the partnership at all beyond his early 60s. I consider that the sum of $400 per week represents a fair assessment of the measure of the loss of earning capacity for the future. The relevant multiplier to age 65 is 443. Taking into account the usual contingencies such as sickness and accident which may occur in the future in any event, the possibility that the three plaintiffs may not continue in partnership indefinitely (in my view a remote possibility), the uncertainties that would apply to any small business as to the availability of work, and the fact that it is likely that the 1st plaintiff will be excluded from the workforce in his early 60s, I consider that a proper assessment of damages for future loss of earning capacity requires an award in the sum of $100,000. 54. As to special damages incurred in the past, it is agreed that the defendant's insurer has paid the sum of $42,044.71 and that the sum of $10,271.43 remains to be paid. I allow the sum of $10,271.43. 55. As to the plaintiff's claim for gratuitous services, the amount of the award is limited by section 35a(1)(h) of the Wrongs Act unless the plaintiff is able to invoke the provisions of subsection (2) of that section. That subsection provides:-

    "Notwithstanding the limits fixed by subsection (1)(h),
     if the Court is satisfied that by rendering gratuitous
    services a parent, spouse or child has saved or will save
    the injured person the cost of engaging another person to
    provide those services (those services being reasonably
    required by the injured person), the Court may make an award
    of damages in excess of that limit but the damages awarded
    in that event must not reflect a rate of remuneration for
    the person providing the service in excess of State average
    weekly earnings." 56. The essence of the plaintiff's claim under this heading relates to the assistance rendered to him by his wife during and after records of hospitalisation. I have no doubt that the services rendered by Mrs. Palmer saved the cost of engaging another person to provide those services and that they were reasonably required by the plaintiff. Consequently I consider it appropriate to make an award in this respect beyond the limitation imposed by subsection (1)(h) of section 35a. I bear in mind that the award must not reflect a rate of remuneration in excess of State average weekly earnings. 57. There is no material dispute between the parties in relation to this aspect of the plaintiff's claim. I consider that I should allow for the provision of services by Mrs. Palmer for an average period of 20 hours per week for three months in respect of the first period of hospitalisation and for 21 hours per week for a 10 week period after the second operation. I consider that the hourly rate of $12 is appropriate, given the evidence of Mr. Hill in this regard. I award the sum of $5,800 for gratuitous services rendered by Mrs. Palmer in the past. 58. A claim is made in respect of the inability of the 1st plaintiff to attend to home and garden maintenance. I consider that an allowance for the future based on 3 hours per week at $15 per hour is appropriate. The relevant multiplier is 443. I see no reason to discount the sum of $20,000, in round figures, thereby derived. I bear in mind that the plaintiff has claimed damages in respect of future care based on Mr. Raptis' evidence, where, if the worst case happens, the 1st plaintiff would be required to acquire an interest in the retirement village at a much earlier date than otherwise would have been the case. In that event, home and garden maintenance would be reduced to a minimum. I shall deal with that aspect of the matter in more detail later in these reasons. 59. The plaintiff claims an award in respect of future medical expenses. There is no dispute that the plaintiff will in the future incur expenses for medication at an average present day cost of approximately $9 per week. It will also be necessary for him to attend at his general practitioner's surgery for the purposes of obtaining prescriptions for medication. However, given his condition of hypertension, it is likely that at least some of those visits will relate to renewing prescriptions for medication in relation to hypertension. If a figure of $15 per week is applied to the appropriate multiplier of 682 then the sum of $10,230 is arrived at. I think that that sum ought to be discounted to reflect the fact that visits to the general practitioner will include a review and dispensation of further prescriptions for the plaintiff's condition of hypertension. I would allow the sum of $8,500. The plaintiff is likely to undergo two further operations in the future in relation to his hip. The present cost of such an operation, including hospitalisation and subsequent rehabilitation, amounts to $15,000 approximately. These amounts need to be discounted because the plaintiff will receive the moneys prior to the time at which the debt is incurred. In his written submissions Mr. Eriksen contended that the discount should apply on the basis that the 1st operation takes place within 8 years and the second operation within a further 8 years. The sum arrived at amounts to $20,693. Mr. Cameron contended that there should be no discount to allow for contingencies. However, I accept that there should be a discount to allow for the fact that only one operation may ultimately be necessary. I allow the sum of $17,500 in this regard. 60. The 2nd plaintiff makes a claim for loss of consortium. There is no doubt in my mind that there has been a substantial loss sustained by the 2nd plaintiff in that regard. The 1st and 2nd plaintiffs have always had a sound marriage and that has not been altered by the accident. However, the close relationship that they had prior to the accident has been markedly affected by the physical limitations of the plaintiff and his reaction thereto. The 1st plaintiff is impatient and irritable to a much greater degree than prior to the accident. This has had a significant impact on the relationship between the two of them. I would allow the sum of $12,500 to the 2nd plaintiff for loss of consortium. 61. The plaintiff claims an award in respect of the cost of future care. It is based largely on the evidence of Mr. Raptis. I have previously indicated that I have preferred the evidence of the orthopaedic surgeons to that given by Mr. Raptis in relation to the plaintiff's remaining working life. However, Mr. Raptis also gave a great deal of evidence in relation to the position of the plaintiff between ages 60 and 65. Given that I have found that it is likely that the plaintiff will only be able to remain in employment until his early 60's, it is necessary to examine whether, in addition to being able to continue with work, he will need added assistance once he ceases work. Mr. Raptis thinks that it is likely that as the plaintiff gets older his condition will worsen. I accept this opinion. He thinks that the plaintiff in his 60's will have difficulty in getting in and out of a bath and dressing himself. He will have to have assistance in this regard from his wife or professional assistance. Mr. Raptis was of the view that the plaintiff would have to go into a retirement village where assistance is available both in respect of the accommodation provided and in respect of the provision of a trained nursing care. He is of the opinion that the extent of the care will be such that Mrs. Palmer will be unable to provide it. 62. Whilst I accept that the plaintiff's condition will deteriorate and that there will be an increasing need in his 60's to obtain the assistance of his wife in moving about the house, particularly in the bathroom, and assistance with dressing, getting into a car and such like movements, I think it unlikely that the plaintiff will have to move into a retirement village. He and his son are skilled builders. I have no doubt that the plaintiff could design and the 3rd plaintiff could implement a restructuring of the bathroom and shower so that the appropriate handholds and anti-slip measures could be provided. Whilst I accept that on occasion the assistance required by the plaintiff in his 60s may be such that Mrs. Palmer will need extra help, it is more likely than not that that assistance will be forthcoming from the family, if not from the church of which all three plaintiffs are members. I allow for the fact that some professional assistance may be necessary and it will have to be paid for. I also allow for the fact that the plaintiff must be compensated in respect of the assistance rendered by his wife and members of the family. I also recognise that because of the neuralgia and the hip injury sustained by the plaintiff and the continued degeneration of his condition, it is almost inevitable that towards the end of his life, he and his wife will need to sell their matrimonial home and purchase an interest in a retirement village. I also think that it is likely that, if Mrs. Palmer predeceases her husband, he will have to enter a nursing home towards the end of his life. But all of these predictions must be taken in the context that amongst at least the three members of the family whom I have observed during the course of the trial, there is a strong sense of family and that that is a resource which is there for the benefit of the plaintiff. 63. Contrary to Mr. Cameron's submission I do not think that this is a matter where an award of damages can be based upon assessing the cost of future care and making a deduction for contingencies. Mr. Hill, called by the plaintiffs, gave a great deal of evidence in relation to the cost of such future care and I bear it in mind in a general way. What the future holds for the 1st plaintiff cannot be the subject of any precise findings. He is seriously disabled and his condition will worsen. But he is also a man of great courage and is protected by a devoted family. I have no doubt that, particularly after he ceases work, he will need care well beyond the care required to be given to the average elderly person. Some of that care will have to be given by professionals but I think most of it will come from within the family. Nevertheless, in so far as care provided by the family is concerned, the damages awarded must contain an amount to reflect the provision of that care by the family members. 64. In addition to the other matters referred to above, I take into account in awarding the damages now in respect of future care, that the 1st plaintiff is receiving an amount in respect of liabilities which will only be incurred well into the future. In all the circumstances, I allow the sum of $45,000 for future care. 65. In summary my assessment is as follows:-
     First Plaintiff   $
Non-economic loss                 31,000.00 Loss of earning capacity:
    Past   48,000.00
    Future   100,000.00
Medical Expenses:
    Past   10,271.43
    Future - 8,500
            17,500                 26,000.00
Gratuitous services                 5,800.00 Future home and garden maintenance 20,000.00
Future Care   45,000.00
  286,071.43 66. Second Plaintiff Loss of consortium 12,500.00. 67. I will hear counsel as to interest and costs.