Maur v Ferguson & Ors No. DCCIV-99-1347, DCCIV-99-1348

MAUR – v – FERGUSON & ORS
[2003] SADC 64
Judge Bright
Civil

In this matter the plaintiff represented himself. There was a fairly lengthy pre-trial history, including an aborted trial a year ago before another judge. I understand that that judge, recognising that the plaintiff was not properly prepared, attempted to conciliate, but without success. I understand that it was made clear that it would be useful to the plaintiff to seek the assistance of a solicitor. This was also stressed by the Master at various interlocutory hearings. I think that the plaintiff did obtain the services of a solicitor for some time, but he then terminated those instructions.
In the result, the case was not properly prepared. It seemed to me that, having already had one trial aborted, and having had a lengthy period since then to prepare for the new trial date, it would not have been fair to abort that new date, thereby forcing the defendants to a third trial, particularly in circumstances where the plaintiff was so impecunious as to be unable to pay to the court its daily hearing fee, either for the first or the second trial.
The plaintiff was keen to proceed and it seemed to me that the best thing to do was to proceed to whatever the outcome would be on the evidence presented. I explained to the plaintiff that, while I would try to help him, I could not run his case for him, nor could I advise him in the way a solicitor acting for him would. I believe he understood that. However, the result has been that, from the point of view of a lawyer, the case was not well presented.
It is also the case that counsel and an (also unrepresented) defendant had to cope with frequent outbursts from the plaintiff, who was either unaware, or unprepared to recognise the roles they had to play. He frequently called them liars and demanded payment of fanciful sums of money. He interrupted whenever he felt like it and talked over the top of any opposition. He shouted a lot. He walked around the court as he chose, sometimes speaking from the bar table, sometimes from the back of the court, sometimes while invisibly reclining on the public benches. I was not able to control him much. Had he been represented by counsel, I might have had him removed. As he represented himself, that would have brought proceedings to at least a temporary halt, thereby further prejudicing the defendants. I was loath simply to dismiss the claim.
This sort of misbehaviour, while frequent, was not constant. Plainly the plaintiff was excitable and very emotionally involved in his case. His worst behaviour was at times when criticism of his case or contrary evidence was attempted to be put forward.
He believes himself to be very severely injured – he often claimed to be dying, but the organic basis for his claims is, at best, slight. He has a small scar on his chin and he may have a musculo ligamentous problem, difficult to define, in his back. He believes he has a series of fractured bones which, to this day, press inwards on various parts of his digestive tract and on or into his heart. He believes he has a number of serious joint problems, for example, in his right elbow. He often professed to be in great pain, which caused him to gasp and grimace and to move himself into odd positions, apparently to relieve pain.
Having observed him closely for a number of days, I did not form the impression that he was simply a liar. I think he does believe that he is seriously injured. However, the very florid presentations made it quite impossible to form any sensible impression of the amount of pain he suffers. His performance seemed to be designed partly to emphasise to me the pain he really felt, but also to exaggerate it. He was not unaware that he was seeking damages. He often demanded 32 million dollars and, once, a trillion dollars. Again, I believe that these fanciful figures were, at least partly, his way of telling me how serious his case was, rather than an expression of a belief that that was an accurate computation of his entitlement.
When the case began, it was apparent that the plaintiff intended to address me briefly and then to tender a pile of (mostly) inadmissible documents. I put him in the box and led him through the rudiments of his claims. He was then cross-examined, but was very often not responsive in his answers. He appeared unprepared to accept that anything more was required than his word for anything – even though he accepted that, in regard to the second incident before the court, he had retrograde amnesia, which covered the whole period of that incident.
Largely, I think, at my urging, he arranged to call a police officer who had witnessed a small part of one alleged incident. At my instigation he also called a general practitioner and a psychiatrist. I took it to be a mark of their concern for him that they both attended on very short notice and at, I would guess, considerable personal inconvenience.
During the time that the plaintiff had representation he swore the usual affidavit of loss, which included particulars of alleged special damages. When the plaintiff appeared to be taking no steps to prove them I asked for, and was grateful to receive help from the defendants, who were prepared to agree that the various items claimed were in respect of medical services given to the plaintiff at various times, and were charged at appropriate rates. No concession was made that the need for any of those services arose from either of the incidents before the court.
When witnesses for the defence were called, the plaintiff was aggressive towards them. I chose to put the gist of what I understood to be his case to them, but I did not think it right to descend so far into the arena as to cross-examine with any vigour.
I have set out these matters only to explain how it came about that, in the end, there was remarkably little evidence properly before me on which to decide the case. If it had been professionally presented, I expect that there would have been a lot more evidence, perhaps sufficient to justify many of his claims, but I can only act on what actually came before me.
With that background I turn to the claims. The first is action number 1347 of 1999, a claim against the proprietors of a hardware store. The second is action number 1348 of 1999 against Mr Smith and the proprietors of The Planet nightclub.
The First Incident
On the 15^th December 1997 the plaintiff went to the defendants’ hardware store. He wanted to buy an off-cut of Laminex. He spoke to Mr Ferguson at the front counter. He says he said: “I’d like some off-cuts of Laminex.” They both then went to a rack containing sheets of Laminex. The plaintiff says that he was then immediately to the left of Mr Ferguson, facing a stack of horizontal sheets of Laminex. The plaintiff says he began to wipe the dust off a sheet of Laminex with his left hand. Then, he says, Mr Ferguson abruptly brushed his hand to one side. The plaintiff took this to be an unprovoked, aggressive act. The sheet was perhaps a metre wide and a couple of metres long. He says, Mr Ferguson then pulled that sheet out with great violence. Some part of it, presumably the leading left hand corner, struck the plaintiff in the chin about half way between his lower jaw line and the right corner of his mouth. This caused the plaintiff to lose his balance and he was either knocked, or staggered back about a metre. “There was blood everywhere. All my face was inflamed. It was blown up. I was black in my face. I had to have two and a half stiches … . The impact nearly tore my neck off. It went right into my bone and blood was all in the hardware store. I walked into the mirror – in the toilet and said to Mr Ferguson, ‘Look what you have done.’ I went to the toilet. I washed all the blood off, it took me about virtually 25 minutes to recover …”.
He denied that Mr Ferguson apologised immediately after the incident. He agreed that he eventually bought the sheet of Laminex and that, at a later stage, Mr Ferguson did apologise. However, the plaintiff apparently viewed the incident as a deliberate assault. He went to the police to report it. He also went to a doctor. He returned later to the store demanding to know “what was Mr Ferguson’s problem”.
Mr Ferguson’s version is a little different. He gave his evidence calmly and carefully. Where his evidence differs from that of the plaintiff I prefer him. He admits that, in the course of pulling out a sheet of Laminex, it did strike the plaintiff. He says he was not aware that the plaintiff was in the vicinity. The plaintiff had indicated, at the front counter of the shop, that he wanted an off-cut, the size of which he demonstrated with his hands, and of a light colour. Mr Ferguson says he then went out to an area to the rear of his premises, which housed racks of material and which was near an area where various wood working machines were in operation. He says he was unaware that the plaintiff had followed him. He had asked him to wait at the counter.
The plaintiff asserts that there was continuing conversation with Mr Ferguson as they walked to the rack and that they walked together in such a way that his presence would have been obvious. Mr Ferguson denies any conversation. It is possible that the plaintiff did say something in the course of the walk to the rack, but that it was masked by the noise of machinery.
Mr Ferguson denies becoming aware of the plaintiff alongside him, or of the plaintiff putting his hand on the sheet of Laminex, or of brushing that hand away. I accept him. Mr Ferguson asserts that the sheet which he pulled out was 8 to 10 sheets below the top sheet in the stack. That is consistent with pulling it out with a jerk, which would not have been necessary if it had been the top sheet. I infer that a jerk would overcome static friction and also tend to allow sheets above it to remain in place. If there were sheets above the one being removed, the plaintiff could not have been wiping it with his hand. Mr Ferguson said he pulled out the sheet, which was about 1.5 to 2 metres long, in one movement. That is also consistent with what one would do if the sheet being removed was not the top one. Having seen and heard Mr Ferguson, I am sure that he did not strike the plaintiff deliberately. He did not observe him alongside, nor did he brush away his hand. It was an accident. Mr Ferguson was not aware of the plaintiff’s presence.
That is not the end of the matter. I do not accept that, in doing what he did, he was, without more, entitled to assume he was alone. From the fact that wood working machines were operating in the area, I assume that other people worked in the vicinity. I infer that Mr Ferguson was not the only person who served in the shop (the plaintiff says he spoke to another person when he returned later to remonstrate with Mr Ferguson). Even if Mr Ferguson had reason to assume that the plaintiff was still at the front counter, it seems to me that he should have glanced over his shoulder before removing the sheet of Laminex to check that all was clear. The risk of injury was obvious. The precaution was quick and simple. I find that he was negligent in pulling out the sheet without looking.
Was the plaintiff guilty of contributory negligence? On his version he was not, but I have not accepted a number of details in that version. It is not clear to me exactly how close the plaintiff stood to Mr Ferguson, or quite at what stage of removing the sheet it struck the plaintiff. I cannot think that the plaintiff was aware that the sheet was to be pulled out at the precise moment it was – no one would deliberately put his face in the way. It is not clear to me that the plaintiff should have been aware that Mr Ferguson did not know he was there. However, he should have seen, and probably did see Mr Ferguson grasp the sheet preparatory to pulling it out. It should have been obvious what he was about to do. If the plaintiff had shouted, touched Mr Ferguson, ducked or put his hand up the accident probably would not have occurred. It is not proved that he was negligent to have followed Mr Ferguson out to the stacks. I find him 20% to blame. I find Mr Ferguson 80% to blame. I will come to quantum later.
The Second Incident
On 28^th June 1998, about 6 months after the first incident, the plaintiff attended at The Planet nightclub in Pirie Street. Later that evening he was at the Royal Adelaide Hospital, having apparently suffered concussion and some other injuries. He has no recall of how he came to be injured. His last memory is of sitting in the nightclub, drinking a glass of orange juice.
The only witness to any part of what happened who gave evidence was a police officer, Mrs Neal. On that night she was the driver of a police car and was in company with another officer. She answered a call to go to the nightclub in relation to an unspecified disturbance. On the western boundary of the club, running at right angles to Pirie Street is Freeman Lane. She swung her car into the lane and illuminated it with her headlights. She saw a number of men in what was obviously Planet nightclub uniform holding a man (who turned out to be the plaintiff) face down on the ground with his head towards Pirie Street. There was a crowd of onlookers. She did not see the men in uniform do anything inappropriate. There was blood on the plaintiff’s face.
She then saw a man who turned out to be the defendant, Mr Smith, walk from the western side of the plaintiff’s body around to his head. He swung his foot back and kicked the plaintiff in the face. His head flung up. Mr Smith then walked towards the front door of the club in Pirie Street. The incident took place some distance down the lane, near a side entrance to the club. There was no evidence about what led to the plaintiff being on the ground, restrained by security staff, or of his condition at that time.
There were video cameras covering the area in Pirie Street outside the club. The plaintiff believes that there was coverage by cameras in Freeman Lane and that tapes have been withheld or destroyed. I accept the evidence of Mr Owens, the manager of the club, that there were no cameras covering the lane, although cameras have since been installed. The tape from the Pirie Street video was examined by police. Apparently it showed the plaintiff being ejected through the front door of the premises by a number of security staff. He did not appear to be injured. However, it appears that that was not the ejection immediately following or in the course of which he was injured. It appears to be an earlier ejection from the premises. The location of the incident in the lane suggests an ejection through a side door. No evidence was given of what led to either ejection or as to when, and how the plaintiff was injured, apart from the evidence of the kick by Mr Smith.
Mr Smith gave evidence. He, too, was unrepresented, though the beneficiary of some assistance from counsel for the club. The fact that he was not represented was a part of the reason for my reluctance to descend too far into the arena. He told me that he was purely a curious spectator. He went out to see what was going on. He agrees that he moved from being alongside the plaintiff and went to his head. He says he looked down with some concern to see if he was all right. He was bleeding. As Mr Smith looked down the plaintiff coughed and brought up a bit of phlegm or saliva and blood, which landed on Mr Smith’s shoe. Mr Smith says he flicked his foot to dislodge that material. He denies that his foot came into contact with the plaintiff’s face at any time.
It is pleaded that Mr Smith was eventually convicted of assaulting the plaintiff. No formal proof of that was tendered, but it was acknowledged by Mr Smith. He asserts that he was wrongly convicted. In itself, the fact of conviction takes the matter no further. It is what is proved to me that counts.
I suppose that the plaintiff may have been thrashing about and that, by pure chance, his head flung up at the moment Mr Smith flicked his foot. Mrs Neal was clear in her impression that a kick caused that. I acknowledge that no motive is shown on the evidence for Mr Smith to kick the plaintiff. Despite that, I accept the evidence of Mrs Neal that that is what he did. There was no legal justification for it on the evidence.
The plaintiff asserts that he was seriously injured through the combined assaults of a number of security officers in the employ of the club. He asserts that Mr Smith was also an employee. With regard to the security staff observed by Mrs Neal, there is no evidence that they did anything improper. I confess that I am left with a most uneasy feeling that they might have. It appears that the plaintiff was being ejected for a second time. It appears he was already bleeding before Mr Smith acted. A well managed case would have explained this. I simply do not know how the plaintiff received his injuries. Was it in a struggle with security staff? If so, did they behave wrongly? Was it in the course of an altercation with patrons before ejection?
I could imagine the plaintiff presenting as an angry, difficult man. It appears he had already been ejected once. It could have been the case that security staff lost patience with him and misbehaved. The plaintiff was found to have a broken rib and had a fair few bruises and abrasions. He had a broken nose, which may have resulted from the kick by Mr Smith – or it may have occurred before the kick.
The plaintiff asserts that Mr Smith was in the employ of the club on that night. Both Mr Owen and Mr Smith deny that. Mr Smith had worked there as a security officer at an earlier time. He had then left to work as a security officer at the Moomba gas fields, employed by a company with which Mr Owen was associated, but not by The Planet nightclub. On the night in question Mr Smith was there as a private patron.
So it was that Mr Smith knew various of the security staff who dealt with the plaintiff. He says he heard a call on the radio worn by one of those staff, recognised a code word for trouble and went out to watch. It may be the case that what he saw happening to those staff aroused his anger, which could explain an otherwise motiveless event. It might suggest a “joining in” with his mates in improper behaviour.
But all of this is no more than speculation. There is no evidence on which I could conclude that these were the true facts. A better prepared case would probably have revealed a lot more, but I cannot proceed on pure guesswork.
In all the circumstances there can be no finding against the club. I find Mr Smith liable for the consequences of the kick. There is no evidence to suggest any contributory negligence on the part of the plaintiff.
I turn to quantum.
Dr Wong is a general practitioner who has practised for over 30 years. He first saw the plaintiff on 26.6.98. That is two days before the second incident and six months after the first. The plaintiff reported neck pain which he attributed to the first incident. He wanted to be referred for x-rays, and was. The x-ray, taken after the second incident, was subsequently reported to be normal. Dr Wong prescribed some anti-inflammatories, but did not otherwise give any treatment for problems attributed to the first incident, though the plaintiff did refer back to it from time to time.
It appears that his partner, Dr Bowler, dealt with it, but he was not called. I do not have his notes. The plaintiff told me that he had stitches in relation to the cut caused by the Laminex. I examined a scar on his chin. It is not prominent. When I first looked, I thought it was about an inch and a half long, with a slight bend. It was then suggested that the scar was so placed as to be a continuation of a natural crease in his skin and was only half that length. On further examination I agreed that that could be so. I was not sure. In my view, whatever part of the mark I saw is truly a scar, it is not repulsive, or disfiguring. Unless my attention was directed to it, I would not expect to notice it. That said, it should not be there at all and I accept that the plaintiff does notice it frequently, for example, when he shaves. He does not like it and, at least sometimes, puts a masking cream on it.

The plaintiff believes he suffered bone injury to his jaw, which still causes great pain and which makes it hard for him to eat. He was referred to an oral surgeon, Mr McMillan, and to a dentist, Mr Morrisey, for this complaint and it appears that no treatment was undertaken. Dr Wong was not aware of any organic basis for jaw trouble.
One does not need a medical degree to accept that a blow to the chin, or a rapid movement of the head in response to, or to avoid a blow could cause a musculo ligamentous strain and some neck pain. The plaintiff complained of neck pain, as I have noted. Given his quite unusual and repeated behaviour in court, when he would suddenly groan, twist his neck and announce that “my neck has just manipulated” showing every sign of great pain, it is hard to know what significance to place on a claim for continuing neck trouble attributable to the first incident. There is no evidence of any organic basis for it. There is no evidence of other organic injury attributable to the first incident.
Dr Wong told me he had checked with the Royal Adelaide Hospital to ascertain what injuries they had recorded after the second incident. He understood that there had been a broken nose, corrected by surgery a few weeks later, a possible fracture of the right mandible, and probable fractures of his right 7^th to 9^th ribs. Dr Wong believes that, from an organic point of view, those injuries all resolved normally over a period of a few months. It is his view that continuing complaints relate to psychological problems, for which he referred him to a psychiatrist, Dr Heint. For purposes of this assessment I find that, from an organic point of view, the plaintiff’s injuries healed over a period of a few months.
It would seem that only his facial injuries could possibly have been caused by Mr Smith’s kick. However, whether they were so caused is problematic. There was blood on the plaintiff’s face before the kick. Mr Smith appears to have delivered a forceful blow. His shoes were rubber soled joggers with soft uppers. There is no evidence on point, but I infer that the one kick described is not likely to have caused fractures to both the right mandible and to the nose. I cannot make a positive finding that it caused either. As it seems that, from an organic point of view, his facial injuries healed over a period of a few months, it may be enough to conclude that the kick caused injury giving rise to significant pain and swelling which resolved normally over a period of a few months.
I turn to the question of psychological injury.
Dr Wong confirmed that, in addition to problems arising from the two incidents before me, the plaintiff separated from his wife and, after an apparently bitter fight, obtained custody of his daughter. He has found it hard, at times, to look after her well. He has, I think, had financial problems. He was later involved in a motor vehicle accident when another vehicle ran into the rear of his. His car was a write-off. It aggravated all his injuries and is the subject of another action. He also claims to have been assaulted in a separate, later, incident by security staff at another hotel, and intends to take action in respect of that. Following that assault police, wrongly, he says, arrested him. He says they assaulted him, both at the scene and, later, in the cells. A further action may be brought. These considerations at least complicate the question of what caused any psychological problem he may have.
We do know from Dr Wong that, when he first saw the plaintiff a day before the second incident, the plaintiff was taking 100 mgs of Zoloft per day. That is an anti depressant and the dose is at a level to suggest a diagnosis that he was depressed at that time.
Dr Heint wrote that he first saw the plaintiff on 31.7.98, a month after the second incident. He saw photographs, probably the same ones I saw, which show, in one photograph a battered, flattened nose and bruising to his forehead. There also appears to be swelling to the right side of the jaw. Other photos show the plaintiff in a nose splint, presumably after the operation to correct the fracture. Dr Heint notes that the plaintiff was kept in hospital for about 8 hours. His daughter was then 8 years old. He was told that the plaintiff had been prescribed Codeine tablets for pain and had, on 5 occasions, gone to the Royal Adelaide Hospital for morphine injections. The plaintiff was sleeping badly due to pain in neck, back and ribs. Dr Heint diagnosed “an adjustment disorder with depressed mood consequent to the assault on his person, which is continuing to resolve along with the tissue injury sustained during the assault”. He suggests continuing with Zoloft, but at half the rate.
Dr Heint has been in practice for 33 years. Although the report to which I have referred states that he first saw the plaintiff on 31.7.98, he told me he had seen him after the first incident and before the second.
The plaintiff was then complaining of laceration to his chin, whiplash injuries to his neck and depression and ongoing torment from his recollection of the incident. He believes that that would have been when he started the plaintiff on Zoloft. Since then he has seen the plaintiff about every two weeks.
Dr Heint then agreed that he was in error in believing that he saw the plaintiff before the second incident and accepted that he first saw him on 31.7.98. Dr Heint believes that the plaintiff suffers from a chronic pain syndrome. That is, he believes, caused by continuing organic, soft tissue injuries to neck, chest and back. He assumes the presence of such organic injury and has not conducted any physical examination of his own. He has not seen any reports from “organic” doctors verifying continuing organic problems.
In cross-examination by Mr Doherty (for the hardware store) Dr Heint agreed that his initial report to Dr Wong referred only to the second incident and not to the first. Insofar as he diagnosed Post Traumatic Stress Disorder, it was precipitated by the second incident. In his evidence to me he said that he still considered the second incident to be the “overwhelming” cause, though not necessarily the whole cause. He agreed that, in terms of DSM IV, the second incident was of sufficient violence to cause an episode of Post Traumatic Stress Disorder, while the first was much less likely to do so. Nevertheless, he would not completely rule it out as a contributor. He agreed that it was a very difficult matter to attribute blame – and he had tried to avoid having to do so. He agreed that the subsequent motor vehicle accident was also a contributor. Dr Heint agreed that there was a school of thought, to which he did not subscribe, that held that, if a person could not recall the events giving rise to injury, they could not have true flashbacks or Post Traumatic Stress Disorder.
Mr O’Loughlin, for the nightclub, called Dr Burville, a psychiatrist who examined the plaintiff in March 2000. His report of 10^th March 2000 was tendered. He had also read some 14 other medical reports (almost none of which were before me). He recorded the history given by the plaintiff. His description of the first incident was apparently in words largely identical to those he repeatedly used in court. There is a formulaic fixity in the description. He said that, after the first incident he was sleepless, wanted Mr Ferguson charged by the police, and was on anti depressants prescribed by a psychologist, Mr Giles.
He said he first saw Dr Heint soon after the second incident. He said that the second incident so aggravated the problems caused by the first that he became suicidal. He recited extensive sites of pain and disability. He described a lonely, restricted existence. Dr Burville noted that there was no basis for continuing organic problems, despite very extensive investigations. (He noted a Royal Adelaide Hospital report, not of fractures to 3 ribs, but of “possible” fracture to one, a condition that would heal in a couple of weeks.)
Dr Burville concluded:
“I cannot comprehend Mr Maur’s psychological reactions to the initial incident in the hardware shop, I do nevertheless consider that he has suffered, as a result of the assault in the nightclub, the onset of the psychiatric state of Adjustment Disorder with features of Depression and Anxiety. His emotional arousal and over-elaborated reporting of subjective experiences do not in my opinion constitute a psychiatric disorder.
It is typical of episodes of Adjustment Disorder not to respond well to the use of anti depressant and this certainly has occurred in Mr Maur’s case and despite frequent treatment by Mr Giles and Dr Heint, his symptoms continue. I suspect they will continue until such time as he feels vindicated from the outcome of litigation. However, his underlying personality traits which have resulted in his reaction to an interpretation of events in his environment, will remain.”
(I pause to note that the outcome of this litigation may, or may not, be seen by the plaintiff as vindicating him.)
In his oral evidence Dr Burville said he was of the school which did not believe there could be Post Traumatic Stress Disorder caused by an event for which the victim is amnesic. Dr Burville was clearly of the view that, while he was prepared to diagnose “an Adjustment Disorder, with features of Depression” it was against a background of complex pre-existing personality problems including a rather paranoid view of life.
Accepting for present purposes that there are significant problems caused by the two incidents and mostly by the second, a serious difficulty remains. If the nightclub had been held responsible, perhaps in conjunction with Mr Smith, and if the facts had been better known by me, I could readily have fixed some apportionment between the first and second incidents and, in respect of the second, between the nightclub and Mr Smith. As things stand, it seems to me quite unfair to fix Mr Smith with liability for all of the consequences of the second incident, when I don’t either have evidence of what precise injury he caused, or of what proportion of the responsibility for the overall reaction should be attributed to that part of the overall physical injury caused that night. He is not one of several joint tortfeasors, all equally responsible for a total outcome. There is no evidence he was in conspiracy with whoever had injured the plaintiff before he kicked him.
The plaintiff has not worked, he says, since the incidents. In the past, he has done extensive work as a construction worker and truck driver. However, if only to look after his daughter, he had not worked for a few years before the incidents. He has a great deal of practical experience, but no formal qualifications.
He says that, before the incidents, he was planning to set up his own business as a general builder. He had an advertising placard and some business cards printed. Nothing had come of this venture by the time of the incidents. It is my assessment of his personality that he was not likely to have found it easy to get on with clients, nor they with him. His dogmatic style would be difficult. The manner in which he prepared this case suggests that, though he tries hard, paper work is not his strength. I think he would have needed a licence to perform much of the work he planned. Without qualifications that may have been hard to get – at any rate, he never got one. It is not proved that he lost any specific wages or other earnings.
However, I believe that he has suffered a loss of earning capacity which may well have been reflected in some actual loss of wages. I can only use a very blunt broad sword. I take into account difficulties he would have faced in coping with both his responsibilities to his daughter and the obligations of work. I note reference in Dr Burville’s report to a period when the plaintiff’s sister was looking after the plaintiff’s daughter, but I took it from what the plaintiff said in court that he now has that responsibility again. I do not have dates for these changes. It appears that the social security benefits he received before the incidents continued unchanged. While on the pension, he was limited in how much extra he could earn without affecting his pension.
It appears his father is, or has been a builder. The plaintiff was not at all forthcoming when questioned about his relationship with his father and whether he had done any work for him. I propose to guess that he could, but for the incidents have earned a few thousand per year. I will allow $12,000 for past lost income and $5,000 for future loss of a chance to earn.
I take into account the need the plaintiff will have for future psychiatric treatment, as I do the accounts for past treatment of various kinds. I am not satisfied that much should be allowed for physical treatment after, say, 3 months after the second incident. Nor am I satisfied that he can claim for all of the general practitioner visits, as well as all of the psychological and psychiatric consultations. They all seem to be to provide support, without prospect of changing anything much. The need for support seems to me to be largely predicated by his pre-existing personality, rather than by sequelae of the incidents – so much is demonstrated by the absence of significant change. But part of the need does arise from the incidents. The cost of physical treatment prior to 1.10.98 was $1,359. Thereafter, a number of specialists were, at various times, apparently asked to assess aspects of the plaintiff’s physical state. I infer that none found much and that none offered treatment. However, at least for some time, it was reasonable to check out the various complaints. The picture of psychogenic pain, rather than pain caused by organic problems emerged quite early. I do not think it reasonable to charge the defendants for each time the plaintiff sought referral to a specialist. A little under $900 was incurred. I allow $600.
Psychological and psychiatric services set out in the affidavit of loss, up to the end of 2000 cost, in total, a bit over $9,000. Assuming they have continued at the same rate (one consultation per two weeks at about $100), there is about a further $6,000 to be added. I propose to attribute $8,000 to the two incidents.
I allow $10,000 in respect of special damages to date.
On a very arbitrary basis I will allow for future expenses of, say, $3,000.
In respect of the two incidents, I allow damages for past pain and suffering of $20,000, and, for the future, of $10,000.
The total of the figures I have arrived at is $60,000. I apportion that between the two incidents. I attribute $20,000 to the first (of which the plaintiff is to receive 80%) and $40,000 to the second.
However, as I have earlier noted, Mr Smith is not responsible for all of the consequences of the second incident. It is clear that the plaintiff was already injured and it is not clear what further injury Mr Smith caused. I propose to attribute one quarter of the blame and assess damages against him in the sum of $10,000.
Having regard to the extreme amount of guesswork involved in reaching these figures I do not propose to add anything for such other aspects as Beck v Farrelly, or for interest.
The plaintiff will have judgment in action number 1347 of 1999 in the sum of $16,000 and in action number 1348 of 1999 against Mr Smith in the sum of $10,000.
I will hear the parties on costs.

[2003] SADC 64

8 May 2003