Michael Albert Walker v Aldo Circelli No. SCGRG 91/676 Judgment No. 3765 Number of Pages 14 Damages General Principles

[1992] SASC 3765

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MULLIGHAN J

CWDS
Damages - general principles - Damages - personal injury - road accident - severe injury to cervical spine - fracture - severe pain and discomfort - shoulder injury - fusion operation - farm worker - married man aged 27 years with young children - totally and permanently incapacitated for work - unable to pursue pre-accident hobbies and interests - numerical value of 24 assigned - damages assessed at $25,680 for non-economic loss - $64,000 for past economic loss - $300,000 for future economic loss - $4,500 for past voluntary services - $300 for future voluntary services - $24,226.04 for special damages - total $418,706.04 - apportionment of responsibility for the accident agreed at 80/20 - judgment for plaintiff for $334,964.83. Giorainis v. Kastrati
(1988) 49 SASR 371 and Cole v. Ellis (Judgment No. 3611, unreported, 11th September 1992 referred to. Wrongs Act 1936 35a(1)(b) and (h), and (2).

HRNG MT GAMBIER, 22-27 October 1992 #DATE 18:12:1992
Counsel for plaintiff:         Mr D H Greenwell with
   Mr C H Cocks
Solicitors for plaintiff:     Brown, Aston and Hamilton
Counsel for defendant:         Mr D F Stratford
Solicitors for defendant:     Stratford and Co

ORDER
Judgment for plaintiff.

JUDGE1 MULLIGHAN J The plaintiff was injured in a road accident on 2nd June 1988 when a station wagon being driven by him collided with a tip truck being driven by the defendant at the intersection of the Princess Highway and Casterton Road near Mt Gambier. He brings this action for damages for the injuries sustained and loss suffered by him in consequence of the accident. 2. After the trial had commenced the parties reached agreement as to the issue of liability. The plaintiff is to receive 80 per cent of his damages to be assessed. The trial proceeded with respect to assessment of damages only. 3. The plaintiff is aged 27 years. He married on 13th June 1987 and has three young children aged four years, three years and seven months. He was born at Warrnambool and has lived all his life in that general area. He left school at the age of 14 years having reached second year of secondary education. He never developed the ability to read or write beyond a basic level. No evidence was led to establish why that is so, but it is not a consequence of the injuries he sustained in the accident. After leaving school he obtained employment as a farm worker and has since worked on various farms with some periods of unemployment. 4. In 1981 he fell off a bicycle and fractured his neck at C2 level. He recovered from that injury in the sense that the fracture healed and after about twelve months he was free of symptoms except for mild stiffness. He returned to work after a few months after that accident and progressed from light duties to heavier work. After about twelve months he had resumed his normal working and recreational activities. Prior to the accident, the subject of these proceedings, he enjoyed good health and was a keen motor cyclist participating in rallies and other recreational events involving motor cycles. His wife shared an interest and accompanied him on many of his frequent trips on his motor cycle. 5. He also enjoyed camping, horseriding and dancing. He played pool competitively each week and frequently worked on his motor cycle and on motor vehicles. The evidence, which I accept, is that he was generally a physically active person who enjoyed his life and was happy and content in his marriage. 6. In consequence of the accident, which is the subject of this action, he again broke his neck. He sustained a fracture dislocation of the spine at the C4-5 level, with a rotational subluxation of the facet joints on the right side which eventually led to a bony union with malalignment and associated compression of the right fifth cervical nerve, a fracture of the C6 level, significant soft tissue injury of the neck, mild concussion with brief episodes of loss of consciousness and a short period of retrograde amnesia, a soft tissue injury around the right shoulder, described as a rotor cuff injury, and a transverse laceration about five inches long across the top of his head. He was admitted to the Mt Gambier Hospital where he remained for about a week. Eventually his neck was placed in a somi brace which immobilized his neck, jaw and upper torso. He experienced considerable pain in his cervical spine. His right arm was placed in a sling and he was confined to bed. 7. The plaintiff's brother-in-law was a passenger in the plaintiff's vehicle and he was killed in the accident. About six days after the accident, the plaintiff's medical advisors proposed to send the plaintiff to Ballarat by ambulance for a CT scan, however, the plaintiff wanted to attend the funeral of his brother-in-law at Warrnambool. Upon his discharge from the Mt Gambier Hospital he was driven to the funeral where he collapsed. He was then admitted to a hospital in Warrnambool. The CT scan was performed and after four days he was discharged and returned home still needing the brace. He continued to suffer severe pain to his neck and could not shower or dress himself for a period of about six weeks. This condition slowly improved and he was able to discard the brace about six weeks after the accident. He could not attend to routine tasks at home such as gardening, maintenance and lawn mowing. 8. Due to the poor financial position of the plaintiff and his wife, he decided to return to work even though he was experiencing considerable pain and discomfort in his neck and some pain and loss of power in his right arm. Mr and Mrs Parkinson are dairy farmers at Koroit, near Warrnambool. Mr Parkinson and the plaintiff's wife were acquainted due to the previous association of members of their respective families. The plaintiff had been unemployed for a time before the accident and had registered with the Commonwealth Employment Service. Mr and Mrs Parkinson obtained the name of the plaintiff from the Service and employed him as a farm worker on the day preceding the accident. Having decided to return to work, he commenced working again in August 1988 and continued to do so until January 1989. During that period the plaintiff performed his duties to the satisfaction of his employer, however, the condition of his neck gradually deteriorated to the point where the pain and discomfort was so severe that he ceased work. He intended to rest for a few months and then return to work. I accept the evidence of the plaintiff and his wife, that his condition deteriorated to the extent that his symptoms were as severe as when he was discharged from hospital in Warrnambool after the accident. 9. On 15th May 1989 the plaintiff again returned to work at the property of Mr Parkinson as his condition had improved. Later in these reasons I mention the nature of the arrangement between the plaintiff and Mr Parkinson. He continued to work at the property until about 30th January 1990. By that time he had consulted solicitors with a view to bringing this action and had been referred to Mr Matheson, a specialist general surgeon, who saw him on 16th January 1990. Once again the condition of his neck had deteriorated. According to the plaintiff, Mr Matheson told him that he should cease farm work. Mr Matheson could not remember giving that advice but in his written report to the plaintiff's solicitors dated 17th January 1990, he wrote:-
    "Physical activities required during farm work are causing
    symptom aggravation. The distortion of the foramin the right
    side at the C4-5 level is consistent with causing cervical nerve
    root irritation on that side. It is important that symptom
    aggravation be avoided as much as possible and this will require
    him to endeavour to obtain more suitable employment." 10. It is likely that he expressed that opinion to the plaintiff when he saw him and I accept the evidence of the plaintiff that Mr Matheson advised him to cease working at the property of Mr Parkinson. 11. The plaintiff continued to work for a short period due to his financial position but was unable to continue because of the pain. His condition had once again deteriorated to such the same extent as it was shortly after the accident. Part of his arrangement with Mr Parkinson was that he have the use of a house on the property. When he ceased work on 30th January 1990 he had to leave that house and he went, with his family, to live with his wife's parents where they remained for some months. Those arrangements proved unsatisfactory as there was tension in the home and the plaintiff and his family moved to rented accommodation. He was referred by his general practitioner, Dr Barrett, to Mr Wallace, a neurosurgeon at Ballarat who assessed him in April 1990 and then referred him to Mr Carey, an orthopaedic surgeon in Melbourne, in May of that year. On 28th May 1990 he underwent cervical myelography, CT myelography and cervical tomography. It is unnecessary to set out what was disclosed by these procedures in detail. It is sufficient for present purposes to say that the reasons for the pain and discomfort in the neck in the region of C4-5 were detected. On 6th July 1990 the plaintiff underwent extensive surgery which was performed by Mr Carey and Mr Wallace. The findings during these procedures are described by Mr Wallace as follows:-
    "The findings were quite dramatic, with rotation of the C.5,
    vertebral spine to the right, with considerable instability at
    the C.5-6 and C.6-7 apophyseal joints. There was a sound bony
    fusion of the laminae and facet joint at the C.4-5 level on the
    right side. The bone at this site looked almost abnormal, and
    the appearances were those of a previous fracture through this
    area with sound bony union." 12. A cervical laminectomy and foramenotomy was performed at the C4-5 level. The latter procedure was performed on the right side to decompress the right 5th cervical nerve root which was tightly compressed at that site. A spinal fusion was also performed from the C4-C7 levels on both sides using bone graphs obtained from the iliac crest. The plaintiff remained in hospital for about 10 days and experienced extreme pain and considerable distress. His condition gradually improved. He wore a somi brace for about eight weeks and his movements were so restricted that his wife had to attend to his personal needs. Strength returned to his right arm and the pain in his neck reduced. 13. Upon discharge from hospital, the plaintiff and his family moved into rented accommodation at Wangoom. He has not returned to work. After the somi brace was removed, he wore a soft collar intermittently. He was in receipt of Commonwealth Benefits and his financial position was poor. He turned his hand to woodwork. At first he made Christmas presents for his children and then proceeded to make various small items for sale though the craft shop of the wife of a friend, Mr Stephens. He enjoyed this work and purchased a lathe. By the end of 1990 the plaintiff's condition had improved significantly. Dr Wallace expressed the view, in early January 1991, that the cervical fusion had soundly healed. 14. After about mid 1991 the plaintiff's condition deteriorated. He again suffered severe pain and discomfort in his neck and the restriction of movement increased. He ceased his woodworking activities and sold the lathe. He tried cutting lawns but suffered too much pain. His financial position was poor and he was in arrears of rent. He made an arrangement with the landlord to paint the house in lieu of rent. That task was achieved mainly through the work of his father-in-law. Once the arrears of rent were paid the plaintiff stopped painting. In all, the credit given to him for his work was $1,100. His father-in-law was paid separately. During most of this year the plaintiff's condition has been stable. He has lost strength in his right arm and has constant pain in his neck and restriction in movement. According to the plaintiff it has been suggested, presumably by one or more of his medical advisers, that he undergo another operation for further fusion of his neck. That fusion would have to be undertaken anteriorly and there is no guarantee that it will be successful and reduce his pain. Mr Carey, in his report of 28th August 1992, wrote that he could not say why the plaintiff had suffered the recurrence of neck pain and pain in his right arm. He went on to say:-
    "It may be that future treatment includes anything from
    nothing at all and putting up with his discomfort, to further
    cervical surgery and I am unsure as to which of these various
    alternatives will occur. I will continue to review him every few
    months but would recommend strongly that settlement not be made
    on the basis of this continuing incertainty, at least for six to
    twelve months." 15. Mr Matheson expressed the view that whether further surgery should be undertaken depends upon the extent of the plaintiff's symptoms. If the existing fusion is inadequate and that is the reason for the existing pain, then a further fusion could be of benefit. Mr Matheson was unable to say whether a further operation was advisable. 16. The plaintiff apparently rejected the recommendation of Mr Carey not to finalize this litigation at this time. It is too early for a decision to be made as to whether further surgery is indicated and if it is whether the extent of the plaintiff's pain will drive him to undergo another operation. Whether or not such an operation will benefit the plaintiff is also uncertain. The impression to be gained from the plaintiff's evidence is that he will not undergo the further operation unless there are real prospects of success and he is driven by pain to accept any risks of the surgery. For the purpose of assessing damages, I have concluded that it is unlikely that the plaintiff will undergo the operation and certainly not in the next few years. 17. Whilst the precise cause of the present pain of the plaintiff has not been determined, it is undoubtedly a consequence of the cervical injury sustained in the accident. It may be that there is movement in the existing fusion. Recent x-rays are inconclusive. It is possible that the woodworking activities exacerbated his condition. He has now endured severe pain for most of this year and it is likely that his condition will not improve to any extent unless there is further surgery which is successful. 18. The plaintiff also suffers from pain and discomfort in his lower back and at the site of the donor graft. He walks with a slight limp favouring the left leg which Mr Matheson thought may be due to abnormal weight distribution in the lumbar spine due to the pain at the donor site. Also he continues to suffer some loss of power in his right arm. There was no evidence to indicate when, if at all, these symptons may abate. 19. The plaintiff is severely disabled and experiences considerable pain. I accept that he is unable to pursue employment on the land or any of the recreational activities which he enjoyed before the accident. Despite his evidence to the contrary, I accept the evidence of Mr Stephens that the plaintiff did participate in a long motor cycle rally after the accident, but he was unable to complete the ride due to pain and discomfort. There are two other topics of evidence, which I later mention, which suggest that the plaintiff may not have been truthful in all aspects of his evidence. However, I think he is an unsophisticated man and I do not think he was attempting to mislead the court or to exaggerate the consequences of his injury. Generally, I found him to be reliable and truthful and I have accepted his evidence except where I indicate to the contrary. 20. He is a relatively young man with a long life ahead of him. He will continue to experience considerable pain and discomfort. He will suffer the anguish of being unemployed and unable to pull his weight in the domestic situation. His disability causes distress to him. He is unable to pursue the recreational interests which he enjoyed before the accident. He now spends his time at home with considerable pain and no active interests. I accept his evidence that he and his wife intended to have a large family, perhaps six or seven children, but his poor financial position and the uncertainty about his future have led them to resolve not to have any further children which, I assume, has caused disappointment. That is not a matter which is of particular significance in assessing damages for non economic loss as there are all sorts of reasons unassociated with his disability as to why the plaintiff and his wife may not have had a large family. 21. Pursuant to s.35a(1)(b) of the Wrongs Act 1936, I must assess damages for non-economic loss by assigning a numerical value on a scale of 0-60 and then multiplying the prescribed amount, as defined in s.5(6) by the value. That amount is $1,070 and I assign a numerical value of 24 with the consequence that the damages to be awarded for non-economic loss are $25,680. 22. I now turn to the assessment of damages for loss of earning capacity. Prior to the accident, the plaintiff worked for various employers usually as a farm worker and was unemployed from time to time. However, by the time of the accident he had obtained employment with Mr Parkinson. He was to be paid $292.32 per week gross. He worked for only one day and one morning before the accident occurred. He resumed working at Mr Parkinson's property for the two periods which I have mentioned, namely, 2nd August 1988 to late January 1989 and 15th May 1989 to 30th January 1990. When not working he was in receipt of Commonwealth benefits. The periods of unemployment prior to the accident suggest that if the plaintiff had not been injured he may have been unemployed from time to time due to the vagaries of the rural industry. However, I think it is unlikely that such would have been the case. The plaintiff married a little less than a year before he obtained the job with Mr Parkinson. His first child was born less than a month before. His new-found responsibilities and the relationship between the respective familities of Mr Parkinson and his wife would have been an incentive to succeed in the employment. When he was able to work at the property he discharged his duties to the satisfaction of Mr Parkinson. It is reasonable to conclude that, but for the accident, he probably would have worked at the property until the trial. 23. When the plaintiff resumed working at the property on 2nd August 1988 he was paid on a different basis. He was paid $300 by cheque each alternate week and $200 in cash each other week. No satisfactory explanation was given for this unusual arrangement. His initial tax return for that year, which is dated 20th April 1990, did not disclose any income from this period of working at Mr Parkinson's property. He later lodged an amended return in which this income was disclosed. These returns were prepared by Mr Promnitz, a chartered accountant. The plaintiff had been introduced to him by Mr Parkinson. Mr Promnitz prepared those returns on the basis of information supplied to him by the plaintiff and, I must say, by some guess work. The amended return was filed in consequence of the plaintiff having received a letter from the Transport Accident Commission of Victoria indicating that there had been income omitted from the income taxation return. Mr Promnitz then caused an amended return to be prepared which the plaintiff signed and which was lodged. The amended return disclosed that the plaintiff had received $5,846 by way of earnings. Mr Promnitz took that figure from the accounts of Mr Parkinson's company which conducted the dairy business. This amount is approximately the sum of $250 per week for this period of the plaintiff working at the property. 24. The plaintiff was unable to recall why the arrangement for payments by cash and cheque was made. He thought it may have been made at the suggestion of Mr Parkinson or Mr Promnitz. Both of them rejected that suggestion. The plaintiff did say that he only disclosed the payments by cheque for income tax purposes, but that was not the case. Initially he disclosed no income for this source and in his amended return he disclosed all of it and presumably paid the appropriate amount of tax. I think the arrangement was made probably at the suggestion of the plaintiff in order to evade income tax but he made full disclosure after the letter from the Transport Accident Commission. Having considered all of the evidence, I do not think it appropriate to make any adverse finding as to the plaintiff's credit which bears upon any relevant issue because of his intention to try and evade income taxation. I have regard to the observations of von Doussa J in Giorginis v. Kastrati (1988) 49 SASR 371 at pp 375 and 376 and of King CJ at p 379, but, the plaintiff is an unsophisticated man, particularly in relation to financial matters, and he did make full disclosure to the Taxation Department and to the court. I have scrutinized his evidence with special care but find it to be acceptable despite his initial intention to evade income tax. 25. When the plaintiff returned to work at Mr Parkinson's property on the last occasion, 15th May 1989, he entered into two agreements, a partnership agreement with his wife for the purpose of income taxation minimization and a sharefarming agreement with Mr Parkinson or his company. The partnership agreement was not in writing and was entered into at the suggestion of Mr Promnitz. Pursuant to the sharefarming agreement, which was in writing, the partnership was to be paid money and benefits to the total value of $25,000 per annum. The benefits were the provision of a house at the property for the plaintiff and his family, a motor car for the use of the plaintiff, one tank of petrol each week, and meat, some other food and firewood. Mr Promnitz valued each of these benefits with the reuslt that the partnership received $1,461.60 per month in addition to these benefits. Mr Promnitz prepared the plaintiff's income taxation returns for the years ending 30th June 1989 and 1990. He took it upon himself to include various deductions for the partnership which were not justifiable, e.g. motor vehicle expenses, depreciation and insurance. The partnership had no such expenses and they should not have been claimed. In my view the partnership arrangement between the plaintiff and his wife is of no significance in the assessment of damages for the past loss of earning capacity of the plaintiff. In Cole v. Ellis (Judgment No. S3611, 11th September 1992, Unreported) I had occasion to consider the significance of a partnership between husband and wife in the assessment of damages for loss of earning capacity and I need not repeat what I said there. Here the plaintiff committed his labour to the partnership which was the sole source of income to the partnership. In my view the amounts which would have been received by the partnership but for the plaintiff's disability should be regarded as a measure of the plaintiff's loss of earning capacity during this period. 26. Mr Parkinson, and to a lesser extent Mr Promnitz, gave evidence of various types of arrangements utilized by dairy farmers in the district for the use of labour on their properties. I was impressed by Mr Parkinson and I accept his evidence. He has been a dairy farmer for about 22 years. He takes a keen interest in the industry and regularly attends seminars conducted by appropriate experts about a variety of matters of interest to dairy farmers. He is knowledgeable about such matters as returns on milk and the way in which dairy farmers in the district organize and manage their affairs. According to him, farmers with a herd of not less than about 200 cows commonly enter into sharefarming agreements with suitable farm workers. A common progression is for a farm worker to be employed and if his work is satisfactory to then enter into a sharefarming agreement on the basis that he does most of the work on the dairy farm in return for one-third of the gross proceeds of the sale of the milk with the farmer retaining the balance. The farmer provides the property, herd and necessary plant and equipment. Some shed costs are apportioned to the worker. With a herd of 200 cows the worker would normally contribute about $7,000 to those costs. With herds of a lesser size, such sharefarming arrangements are usually not profitable for the farmer, depending upon the profitability of the particular herd. With larger herds, the profit sharing arrangements may be the same but the farmer would also provide his own labour. 27. The next stage in the progression can be for the worker to provide the herd and the farmer the property, plant and equipment with the profits being shared equally. Some workers then progress to the purchase of their own properties and carry on their own dairies. I do not think the plaintiff would have entered into a sharefarming agreement by the time of the trial if he had not been injured. Mr Parkinson said that he would have reviewed the plaintiff's position each year and if he had continued to be satisfactory he would have suggested that the plaintiff enter into a sharefarming agreement with someone else as that would accord with his best interests in the long term. In view of the plaintiff's responsibility to maintain secure employment in order to provide for his family, it is likely that he would have remained with Mr Parkinson on a fixed income basis for some considerable time and probably at about $25,000 per annum including the benefits. Consequently, damages for past loss of earning capacity should be assessed on the basis that, but for the accident, he would have been employed by Mr Parkinson initially at a weekly wage of $300 per week without any fringe benefits, then at $250 with fringe benefits valued at about $365.40 per week and lastly on the basis of the sharefarming arrangement providing to him $25,000 per annum, including the various fringe benefits which I have mentioned. 28. At the conclusion of the trial the plaintiff was given leave to adduce evidence in writing from a suitably qualified accountant the amount of income taxation and medicare levy which the plaintiff would have paid had he not been injured and had he continued to work for Mr Parkinson pursuant to the various arrangements which have been mentioned. That evidence has now been provided and the defendant accepts its accuracy. 29. Had the plaintiff not been injured, it is likely that he would have continued to work for Mr Parkinson from 2nd June 1988 until 2nd August 1988 at a wage of $292.32 per week. His total earnings during that period would have been $2,547.36 and the income taxation payable would have been $255.42. As I understand the position, no medicare levy would have been payable. His net earnings during that period would have been $2,292.00. 30. Upon the plaintiff resuming work in August 1988, he was paid an average of $250 per week. In addition Mr Parkinson provided him with a motor vehicle for work and private purposes, a tank of petrol each week and whatever milk he required. Mr Promnitz valued these benefits at $2,600 per annum with respect to the motor vehicle and petrol and $1,000 per annum for milk. That valuation was for the period after 15th May 1989, but it may be assumed that his estimates can be applied to the earlier part of that year. These benefits have a value of about $70 per week. They were not disclosed in the plaintiff's taxation return. Mr Promnitz held the view that they were fringe benefits and were not taxable at that time. That view is plainly wrong because the FringeBenefits Tax Assessment Act 1986 came into operation in that year so that tax was payable on fringe benefits provided on or after 1st July 1986. If the plaintiff had not been injured, it is likely that he would have continued to be employed from 30th January 1989 to 15th May 1989 by Mr Promnitz on this basis. There was no evidence as to whether Mr Parkinson paid tax on these benefits or if any was payable. Also no evidence was adduced as to the amounts of income tax assessed against the plaintiff in any year. The onus is on the plaintiff to establish the evidential basis for the assessment of his economic loss due to the accident. As there is no evidence as to these matters, the income which he would have earned, but for the accident, must be assessed on the basis that these benefits were in the nature of income earned by him and therefore taxable in his hands. No deductions have been proved. Therefore I have assessed the gross income which he would have received during this period had he worked for Mr Parkinson at $320 per week. The evidence of the accountant provided since the trial does not include any calculation of income taxation for income at that level, but does establish that the plaintiff would have been entitled to a rebate of tax, but not the precise amount. Applying the rates of income tax then applicable, as discerned from the Australian Master Tax Guide, his net earnings would have been about $270 per week. He would have been entitled to a rebate of about $440. I assess his loss of earnings during this period, about 15 weeks, at $4,500. 31. In view of the sharefarming agreement between the plaintiff and Mr Parkinson made when the plaintiff resumed working on 15th May 1989, it is reasonable to accept that if the plaintiff had not been injured and had continued to work at the property, such an agreement would have been made about that time and the plaintiff would have continued to work at the property pursuant to that arrangement until the present time. The plaintiff has not worked at Mr Parkinson's property since 30th January 1990. There is no evidence to establish that the plaintiff's earnings would have increased over that period or that he would have been entitled to any tax deductions. If the partnership arrangements with his wife are to be ignored and all of the income which he would have earned during the period from 30th January 1990 until the present time is regarded as taxable in his hands, the correct approach, in my view, for purposes of assessing his past loss of earning capacity, the net weekly earnings of the plaintiff would have been about $413. Over the total period he would have earned $61,076. The total loss for these three periods is $67,868. From this amount the actual earnings of the plaintiff must be deducted. He received the benefit of $1,100 for painting the house. The plaintiff maintained that he did not make any profit from his woodworking activities. According to Mr Stephens, the plaintiff did sell items which he made through the craft business conducted by Mr Stephens' wife during the twelve months or so he engaged in this activity after he ceased working at Mr Parkinson's property. However, there was no evidence to refute the plaintiff's assertion that he did not make any profit and I accept that he did not. 32. I have regard to the various contingencies which must be considered when assessing damages for past economic loss. In view of my finding that it is likely that if the plaintiff had not been injured, he would have continued to work for Mr Parkinson on a full time basis, there are no favourable contingencies. I have regard to the usual adverse contingencies. In view of his age, previous good health and his new-found family responsibilities and his good relationship with Mr Parkinson, it is unlikely that he would have suffered unemployment. The possibility that he may have suffered ill health or injury which would have resulted in incapacity for work must be considered. In my view, the true measure of the plaintiff's past loss of earning capacity is the loss of earnings which I have calculated and there should only be a modest allowance for adverse contingencies. I allow damages for past economic loss at $64,000. The assessment of damages for future economic loss poses some difficulty. The plaintiff has no training and experience for other than farming work or other types of manual work. I accept the evidence of Mr Matheson, Dr Jose, Mr Wallace and Dr Ward that the plaintiff is totally and permanently incapacitated from those types of work. He is fit for light work which does not involve lifting more than 10 kilograms or bending involving prolonged neck flexion or extension. I accept that Dr Jose, who examined the plaintiff at the request of the defendant, accurately described the extent of the plaintiff's capacity for employment when he said:- "... and in fact it is very difficult to see what type of work this man could possibly do except in very theoretical situations. He is not educated well enough ... to consider clerical duties and job placement would be exceedingly difficult even with the help of rehabilitation persons." 33. Mr Matheson is of much the same view. Dr Ward, who also examined the plaintiff on behalf of the defendant and who last assessed him on 7th March 1991, expressed the view that he required concerted rehabilitative assistance and vocation guidance and would need light work of the nature of office work or computer activities. Dr Jose rejected that opinion as the posture required for those types of work would cause problems in his neck and he doubted that he could be trained to do that type of work. Dr Wallace expressed the view that perhaps the plaintiff could undertake light work such as delivering parcels. 34. Having seen the plaintiff and heard his evidence and that of his wife, which I accept, I am satisfied that Dr Jose is correct and the plaintiff has no residual working capacity in practical terms. His neck condition is so severe that the posture and movements required for clerical, bench or delivery work could not be undertaken by him. 35. The actuarial evidence as to the present value of an annuity of $1 per week for a person of the age of the plaintiff is $828 to age 60 years and $867 to age 65 years. If the plaintiff would have remained working on Mr Parkinson's property until the age of 60 years on the same basis as during the last period that he worked there, the capital sum to compensate him for his inability to do so would be about $340,000. To age 65 years it would be about $360,000. However, I am satisfied that he would not have continued to work at that property for more than a few years or so. Mr Parkinson said that he would have suggested to the plaintiff that, in his own interest, he go elsewhere and seek a sharefarming agreement. I assumed that he was referring to an agreement on a two-thirds, one-third basis. Mr Parkinson has five sons, the oldest of who is eleven years and it is likely that he would not have used sharefarmers if and when one or more of his sons commenced to work on the property. 36. The plaintiff did have the necessary skill and resolve to be such a sharefarmer and it is likely that he would have sought such an arrangement. It is not possible to be precise as to what his net earnings would have been had he been successful. I accept Mr Parkinson's evidence that the returns on milk are based upon the butterfat and protein content. At the present time the milk from his herd returns $5.80 per kilogram for butterfat. There is no evidence as to return for protein. According to Mr Parkinson, there are many factors which influence the return on milk, such as the breed of cow, the lactation, the organization to whom the milk is supplied and, I suspect, the skill of the dairy farmer. The average annual return is between 175 kg and 190 kg per cow. Excluding a return for protein, the return to a sharefarmer receiving one-third on the basis of $6 per kg for a herd of 200 cows is between $70,000 and $76,000 per annum gross. It is possible to calculate many variations depending upon the size and productivity of the herd and the return. This exercise can do no more than establish that if the plaintiff had been able to obtain such a sharefarming arrangement, he would have had the potential to earn considerably more income than if he worked for wages. Of course he would probably have been required to contribute to shed costs and he may have incurred various other expenses. There is further difficulty in attempting to predict whether the plaintiff may have become such a sharefarmer. I accept Mr Parkinson's evidence that there is an attrition rate in the industry in his area of about one-third of dairy farmers each year, due to age and incompetence. So, even though it may be accepted that the plaintiff would probably have sought a sharefarming arrangement of this nature, it is by no means certain that he would have been successful and, if so, that the arrangement would have continued in the long term or have been profitable to anything like the extent demonstrated by the above calculation. There are other contingencies which must be brought to account. If the plaintiff had been unable to secure such an agreement then he would very likely have sought employment as a farm worker, as he had done in the past. If he had secured such an arrangement, it is likely that it would not have continued for a long period. As I understand Mr Parkinson's evidence, such arrangements usually last for relatively short periods of some years and then another sharefarming arrangement is sought. Of course, it is possible that the plaintiff may have secured such an arrangement which both parties would have wanted to continue indefinitely, but I expect that would be unusual. So, there is a real possibility that the plaintiff would be required to work from time to time as a farm worker. His history reveals periods of unemployment. It may be expected that the vagaries of the rural industry would cause him to be unemployed in the future. He may have become unemployable due to incapacity if he had not been injured. In this context his previous cervical injury is of significance. Whilst the fracture in the region of C2 had healed and he has been without symptoms from the end of 1981 until the date of the accident, there is good reason to suppose that he may have suffered pain, discomfort and restriction in movement of his neck in his later years which may have compromised his earning capacity as a farm worker or sharefarmer. 37. It is not possible to make any precise calculation in the assessment of damages under this head. Balancing the various contingencies and possibilities, I assess damages for future economic loss at $300,000. 38. I now turn to the claim for damages for voluntary services. After the plaintiff was discharged from the St. John of God Hospital in Warrnambool his wife had to shower and dress him and generally assist him for about three hours each day for a period of about six weeks. For some months after that period she assisted him to a lesser extent until he returned to work in May 1989. When he gave up work in January 1990 his condition had deteriorated to such an extent that she again had to assist him in much the same way and to the same extent as was the case when he was discharged from hospital. After the operation she also assisted the plaintiff in the same way as had been the case after the accident and continued to do so for a few months. If those services had not been provided by Mrs Walker, it would have been necessary to engage the services of a suitably qualified person at the rates which prevailed at the relevant times. S.35a(1)(b) of the Wrongs Act 1936 provides that damages for gratuitous services provided by a spouse may not exceed four times State average weekly earnings. The parties agreed that such earnings are $599.50 per week and so that statutory maximum is $2,398. However, s.35(2) provides that notwithstanding the limitation, if the court is satisfied that by rendering gratuitous services a spouse has saved or will save the injured person the cost of engaging another person to provide those services which are reasonably required by the injured person, an award of damages in excess of the limit may be made but the award must not reflect a rate of remuneration for the person providing the services in excess of the State average weekly earnings. I am satisfied that the services rendered by Mrs Walker did save the plaintiff the cost of engaging a suitably qualified person. There is no evidence as to the cost of engaging such a person but it could not have been less than $8 per hour. If such a person had been employed for 21 hours each week, the cost would not have exceeded the State average weekly earnings. 39. It is reasonable, in the circumstances, to make an award in excess of the limitation provided by s.35a(1)(b). Apart from the three periods of more extensive services which I have mentioned involving three hours a day, there were other periods when services were rendered but not to the same extent. Applying the rate of $8 per hour, a reasonable award for those services to trial is $4,500. Some allowance must also be allowed for the possibility that such services will be required, and given, in the future should the plaintiff undergo further surgery. I expect that during any period of recuperation Mrs Walker will assist the plaintiff to much the same extent as in the past, namely for about three hours each day for a period of about six weeks. As the plaintiff may not undergo further surgery, I would allow $300. 40. The plaintiff gave evidence as to the provision of a house cleaner and a handyman who cuts the lawns and, presumably, attends to some other tasks at the home which the plaintiff is currently renting. This evidence was led by Mr Greenwell, who initially appeared for the plaintiff, as the foundation of a claim for damages for the cost of these services both past and future. The evidence is confusing as to important matters. At one stage of his evidence the plaintiff said that the services were provided by the Transport Accident Commission which is apparently the insurer of the defendant. A little later in his evidence the plaintiff, in response to a leading question, accepted that this assistance is provided by a local government authority. He went on to say that he proposes to move to another house in a different local government area in the near future and that the same assistance will continue to be available to him. Mr Cocks, who continued as counsel for the plaintiff, did not pursue this claim in his final address and, in my view, for good reason. No evidence was led as to the basis upon which this assistance was provided. It has not been established whether the plaintiff is under any obligation to repay the cost of these services given thus far upon receiving his damages or as to whether he will have to pay for them in the future. He acknowledged that he would seek such assistance in the future provided he could not do the work himself. The evidence does not disclose the extent of the assistance which will be required at the new home or whether a means test will be applied. There is no sound evidential basis for a finding that the provision of these services, past or future, sounds in damages. 41. No evidence was led as to the likely cost of future surgery should the plaintiff decide to have a further operation. Also, there was no evidence as to whether the plaintiff did incur any cost in obtaining the substantial medication which he has taken to relieve his pain. There is no evidence as to whether the plaintiff will incur any cost in obtaining medication in the future. Consequently, there can be no award of damages for future medication or treatment. 42. Special damages are agreed at $24,226.04. A summary of the assessment of the plaintiff's damages is as follows:-

    Non-economic loss $ 25,680.00
    Past economic loss $ 64,000.00
    Future economic loss $300,000.00
    Past voluntary services $4,500.00
    Future voluntary services $ 300.00
    Special damages $24,226.04
    Total $418,706.04 The plaintiff is to receive 80 per cent of that amount, namely $334,964.83. I shall hear the parties on the question of interest.