Nominal Defendant v Dighton

[2012] SASCFC 93

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

NOMINAL DEFENDANT v DIGHTON

[2012] SASCFC 93

Judgment of The Full Court

(The Honourable Justice Sulan, The Honourable Justice Anderson and The Honourable Justice David)

3 August 2012

TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - LIABILITY OF DRIVERS OF VEHICLES - INTERSECTIONS AND JUNCTIONS

INSURANCE - MOTOR VEHICLES - COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES - UNIDENTIFIED VEHICLE - DUE INQUIRY AND SEARCH

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - EXCESSIVE OR INADEQUATE DAMAGES

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - METHOD OF ASSESSMENT - GENERALLY

The respondent was involved in a motor vehicle collision in which the other vehicle involved fled the scene - the trial judge held that the negligent driver of the unidentified vehicle was the sole cause of the collision - accordingly the respondent was entitled to maintain the action against the nominal defendant under the Motor Vehicles Act 1959 (SA) - whether all due inquiry and search was made to ascertain the unidentified vehicle - judge held due inquiry and search was made.

Appellant appealed - whether the respondent satisfied his obligation to undertake due inquiry and search pursuant to s 115(1) of the Motor Vehicles Act 1959 (SA).

Held: Appeal dismissed - due inquiry and search was made.

The respondent as a result of the accident suffered a post-traumatic stress disorder - judge awarded $535,081.84 in damages.

Appellant appealed - whether the judge erred in his approach to, and assessment of, the respondent's claim for future economic loss.

Held:  Appeal dismissed - the assessment for damages for loss of future earning capacity was not excessive.

The respondent cross-appealed on damages - whether the trial judge erred in his findings - whether damages for past and future economic loss were inadequate.

Held: Cross-appeal allowed - past economic loss and loss of future earning capacity increased - judgment for $687,743.24 in lieu of $535,081.84.

Motor Vehicles Act 1959 (SA) s 115(1), referred to.
Harrison v Nominal Defendant (1975) 50 ALJR 330, not followed.
Plesa v Griffiths (1977) 15 SASR 434; Cavanagh v Nominal Defendant [1958] 100 CLR 375; Slinn v Nominal Defendant (1964) 112 CLR 334, discussed.

NOMINAL DEFENDANT v DIGHTON
[2012] SASCFC 93

Full Court:  Sulan, Anderson and David JJ

1. SULAN J. I agree with the reasons of Anderson J and I agree with the orders he proposes.

2. ANDERSON J.

   Introduction

3. This appeal relates to a motor vehicle accident which occurred in Barmera on 13 August 2004. The respondent (“Mr Dighton”) was driving a B-Double truck when his vehicle was struck by an unidentified vehicle which left the scene straight after the accident. Mr Dighton claimed that he suffered injuries as a result of the accident.

4. The appellant (“the nominal defendant”), appeals from a judgment in the District Court on two broad bases. In the District Court the judge found that Mr Dighton, had satisfied his obligation to undertake due inquiry and search pursuant to s 115(1) of the Motor Vehicles Act 1959 (SA), and awarded him damages. After the accident the driver of the other vehicle, although stopping initially at the scene of the accident, left the scene shortly after and has not been located.

5. The appeal is related to the judge’s finding that Mr Dighton complied with the provisions of s 115 and made due inquiry and search. The appeal also relates to the assessment of damages made in Mr Dighton’s favour. The two aspects on which the nominal defendant now appeals are the components of damages related to future economic loss and the amount awarded for future medical care.

6. There is a cross-appeal by Mr Dighton against the assessment of damages which he claims was manifestly inadequate in respect of both past economic loss and future economic loss.

7. The first issue which arises relates to the extent of the obligation to make due inquiry and search and whether any lead or clue to the identity of the other driver should have been followed up at a time somewhat remote from the happening of the accident.

8. The second issue relates to the methodology employed by the judge in his assessment of damages and in addition whether he has made findings which are not supported by the evidence.

   Background

9. The accident occurred on Friday 13 August 2004 between Mr Dighton and an unidentified driver. Mr Dighton was travelling west along the Sturt Highway driving a fully laden B-Double truck weighing over 60 tonnes. The Sturt Highway tracks in an east-west direction and is a sealed highway with a single carriage for each direction of travel. It is the major road for traffic heading in an east-west direction to the Riverland.

10. At around 2.15 pm, Mr Dighton was travelling at approximately 75 kilometres per hour as he approached the intersection of Bawden Road and Joyce Street at Barmera. Bawden Road and Joyce Street run perpendicular to the Sturt Highway. Bawden Road is an unsealed road on the northern side of the highway which was on Mr Dighton’s left hand side. Joyce Street is a sealed road and is on the southern side of the highway appearing on Mr Dighton’s right hand side. There is a “Give Way” sign located on Joyce Street, applicable to traffic approaching the highway. The relevant speed limit for this part of the highway is 80 kilometres per hour.

11. At the same time, Ms Kelly Vithoulkas was also approaching the intersection, travelling in an easterly direction along the highway. Ms Vithoulkas went through the intersection shortly before Mr Dighton. She was 96 metres west of Joyce Street when she first noticed a speeding vehicle approaching the intersection in a “really fast, … manner”. The vehicle entered the intersection, narrowly missing Ms Vithoulkas’ vehicle but colliding with Mr Dighton’s truck after failing to give way to traffic travelling on the Sturt Highway. Ms Vithoulkas estimated the unidentified driver was travelling approximately 80 kilometres per hour.

12. After the collision, Ms Vithoulkas carried out a U-turn and pulled over on the side of the road. She asked someone at Barton’s Disposals to call the ambulance or police. She proceeded to approach the truck in her vehicle. By the time she arrived at the truck, there was no sign of the other vehicle. She immediately drove down Bawden Road to look for the vehicle which had left the accident scene. Ms Vithoulkas drove to the end of Bawden Road and could not see the vehicle anywhere, so she returned to the accident scene.

13. The vehicle was described by Mr Dighton and Ms Vithoulkas in their evidence as a blue Suzuki four-wheel drive tray top. Mr Dighton said:

    It was a blue colour … I thought originally it was a Suzuki four-wheel drive tray top.

    Later he said:

    I wasn’t really sure if it was a Suzuki or a Land Cruiser.

    Ms Vithoulkas said:

    Yes, it was a Suzuki, I don’t know what model or make or anything like that, but I just – it was a – little station wagon Suzuki, yep.

    … would have been black or a very dark colour but me, on that day, it looked black to me.

14. Given Mr Dighton’s proximity to the unidentified vehicle, which was directly in front of him before impact, Mr Dighton saw the unidentified driver quite clearly. Mr Dighton also recalled seeing materials thrown out of the utility, such as star droppers, sledge hammers and permapine posts. Police officers at the scene gave evidence of also observing the presence of debris on the roadway.

15. At the point of impact, the unidentified vehicle was lifted off the ground and spun once or twice in the air before landing. After the collision, Mr Dighton exited his truck and ran to the unidentified vehicle. On approaching the vehicle, the unidentified driver was “slumped over the steering wheel”. When Mr Dighton was approximately halfway to approaching the vehicle, the unknown driver looked up and drove off down Bawden Road. Mr Dighton described the unidentified vehicle as “crabbing up the road”, in other words there is no doubt that there was considerable damage to the vehicle. In contrast, the damage to the truck was minimal. This is not surprising given its size and weight.

    The unidentified vehicle

16. Mr Dighton almost immediately after the collision telephoned “000”. Ms Margaret Moir, the Administrative Services Officer, redirected the call to the Berri Police Station. Mr Dighton advised Ms Moir of the location of the collision and what had happened. He described it as follows:

    [28]… a vehicle pulled out in front of the truck and it was a four-wheel drive tray top and it was a blue Suzuki, … thought the driver would be 30 or 40 years old.

    Police were dispatched immediately.

17. At around 2.40 pm, Constable Hood and former police officer, Ms Nicky McCarthy, attended the accident scene. Detective Agostino arrived shortly after. Mr Dighton provided the officers with a valid drivers licence and returned a “nil” alcohol reading after being tested. He gave a brief account to the police officers of what had happened, details of the car itself and the fact that the unknown driver took off down Bawden Road.

18. Constable Hood and Detective Agostino drove down Bawden Road in an attempt to locate the unidentified driver. However they were unsuccessful. It was estimated that they drove 900 metres towards the adjoining road and completed an anticlockwise loop beginning on Bawden Road and rejoining the Sturt Highway at a point to the east of the accident scene.

19. Upon returning to the accident scene, Constable Hood noticed gouge marks on the bull-bar of the truck and also that the fibreglass panel was cracked and chipped. Whilst searching for the unknown driver, he also noted that there was paint in the dirt along Bawden Road and also an old wooden ladder. These items were photographed but unable to be retrieved.

20. Following the accident, Constable Hood conducted door-knocks in the area. However, he did not receive any information that was helpful and relevant to the accident. An elderly woman told Constable Hood that there was a blue car that drives around the area regularly and she believed it was a local. She was of the opinion that the driver of that vehicle was a Greek man or someone of ethnic origin.

21. In the hope of identifying a similar vehicle, Constable Hood set up a “static laser” in the vicinity where the accident occurred. This was repeated for the following three successive afternoon’s after the date of the accident. This proved unsuccessful.

22. Constable Hood made no further inquiries and had not seen, at the end of August 2004, any vehicle matching the description of the unidentified vehicle in the Riverland area where he was stationed.

23. The police investigation can only be described as basic and was most unsatisfactory. The judge, whilst critical of one of the police officers, nevertheless found that, despite closing down the investigation by 19 October 2004, any further inquiries by the police, had they been made, were likely to prove futile because of the inference that the offending driver had somehow hidden the unidentified vehicle after the accident.

    Mr Dighton’s inquiries

24. Mr Dighton was employed by Booth Transport (“Booths”) at the time of the accident. He commenced full time employment with them in about 2002 and ceased his employment in about June 2005. Just after leaving Booths, Mr Dighton allegedly gained information relating to the driver of the unidentified vehicle. This information was provided by an employee of Booths, Mr Jade Spehr. Mr Spehr apparently told Mr Dighton that:

    [36]… the driver of the 4WD was drunk, unlicensed, out on bail, was working in the –or in a vineyard in the Riverland which is Berri or Barmera area.

25. Mr Spehr also allegedly suggested that the hearsay source of this information was another employee of Booths who lived in Barmera.

26. After receiving this information, Mr Dighton claimed to have contacted the Berri police station and the Case Manager from Allianz. Allianz was not the relevant insurer but was the underwriter of Booths for workers compensation insurance. There is no evidence or record to support Mr Dighton’s claim that he informed either the Berri police or the insurer Allianz. There is also no record that he provided his solicitors with that information at the time. McKinlay Law were engaged by Mr Dighton on 4 August 2005. The only record of a telephone conversation between Mr Dighton and the Berri police is in October 2004. The contents of the alleged conversation are unknown.

27. In examination-in-chief, Mr Spehr testified that he did not recall anyone who might know the unidentified driver but accepted in cross-examination that he may simply suffer from a lack of recall about having acquired information relating to the unknown driver.

28. On 4 August 2005 Mr Dighton was interviewed by a practitioner of McKinlay Law, Ms Vo, regarding the accident. On 5 August 2005, a letter was dispatched to the nominal defendant giving notice of the claim. The letter detailed the date and place of the accident and informed the nominal defendant that it had been reported to the Berri Police Station. The letter did not contain any description of the unidentified vehicle.

29. On 8 September 2005 McKinlay Law wrote to the Berri Police Station seeking advice as to “the outcome of any police enquiries or investigations”. Detective Agostino contacted McKinlay Law on 16 September 2005 to advise that police had spoken to witnesses but were unsuccessful in obtaining the identity of the driver or the vehicle.

30. On 15 August 2005 McKinlay Law again wrote to the nominal defendant providing them with a police report number and the registration details of Mr Dighton’s truck.

31. By no later than 24 January 2007 Mr Dighton engaged his current lawyers, Tindall Gask Bentley. On 24 February 2007 and again on 27 February 2007 an advertisement was placed in The Advertiser seeking witnesses to the accident. The advertisement describes the vehicle as “a blue four wheel drive”, but provides no other details, for example, that it was a Suzuki tray-top model.

32. On 26 April 2007 Mr Dighton was interviewed by an investigator appointed by his solicitors. He told the investigator that the unknown driver was drunk and repeated what he claims Mr Spehr told him regarding the driver’s identity. Mr Dighton also mentioned the fact that he contacted the Berri police once he ascertained the further information about the unknown driver. As I indicated there is no record held by the police to substantiate this claim.

    Arguments regarding s 115

33. Mr Whitington QC for the nominal defendant submitted that in June 2005 Mr Dighton’s evidence that he was told by a work colleague at Booths that there was another person at work who knew the identity of the driver was significant. The information allegedly provided could have led to the identification of the vehicle and driver in Mr Whitington’s submission and should have been actively pursued.

34. As indicated earlier, Mr Dighton had given evidence that he got a description of the driver from a colleague, Mr Spehr. Both Mr Spehr and Mr Dighton worked for Booths. Mr Spehr told Mr Dighton that he had been told in turn by another Booths’ employee about the driver. He said that the Booths’ employee who told Mr Spehr drove a Kenworth 401 truck. Evidence in the case showed that there were only six of those trucks in the fleet. He was also told that the driver came from Barmera and Mr Rohrlach from Booths said there was only one driver who came from Barmera. Mr Whitington submitted that all this information should have been followed up especially because Mr Dighton said that he would recognise the person on sight.

35. After the accident the unidentified vehicle had apparently thrown from it some work implements which was an indication that there was work being done locally. As I have said earlier Mr Spehr was called to give evidence but said he could not remember the conversation. He did not deny that such a conversation took place.

36. Mr Whitington submitted that those clues, provided as to the identity of the driver, should have been followed up at the time. He submitted that Mr Dighton has failed in his obligation to conduct due inquiry and search. Mr Whitington submitted that s 115 has no temporal limitation and that it is incumbent, even with information relayed by hearsay from an unknown person, that the clues be followed up.

37. Mr Whitington submitted that the judge clearly erred in his consideration of this aspect of the evidence. The judge found that any further inquiries “after the trail was allowed to grow cold” would have proved futile. Mr Whitington submitted that it does not follow that inquiries, if they were based upon the information as to the identity of the other driver passed on by the Booths employee to Mr Spehr and then to Mr Dighton, would have been futile.

38. Mr Whitington submitted that it was not sufficient for the information to have been relayed to the police after the accident. Upon receipt of the further information or clues as to the identity of the driver Mr Whitington submitted that Mr Dighton could not sit back and do nothing.

39. The judge said at [55], [56] and [57] of his reasons delivered on 8 December 2011:

    [55]Any further inquiries, had they been made, were likely to prove quite futile because of the overwhelming inference that the vehicle was deliberately kept out of sight.  As was pointed out in Blandford v Fox the inquiry directed by the legislation must be prompt, and that is exactly what this one was.  To adopt the words of Jordan CJ in that case ‘the inquiries must, if possible, be set on foot before the scent is cold …’ and that too was exactly the position in this case.  Based on the objective circumstances, the inevitable conclusion is that no further inquiry would have lead to the disclosure of the identity of this vehicle, unless it was put back on the road again in the locale.  The probabilities are that it almost certainly was not.  That being so, any further inquiries after the trail was allowed to grow cold would have necessarily proved futile and unproductive.  In the unusual circumstances of this case, the conclusion must follow that Mr Dighton has demonstrated that the identity of the subject vehicle has ‘not after due inquiry and search been ascertained’.  His claim should therefore be permitted to proceed.

    [56]The aspect of Mr Dighton’s evidence claiming to have relayed certain information to the police and Allianz in 2005, outlined earlier, remains somewhat of a mystery.  I cannot accept that he made it up deliberately.  On the other hand, if the information he purports to have received was true, it might be expected that sooner or later he would have encountered the employee involved at Booths.  That consideration, combined with the fact that there are no notes in any one of the places they would be expected to appear if he had reported this information – police, solicitors and insurer records - quite apart from the evidence of Mr Spehr, tends to suggest this information is more likely to be a figment of Mr Dighton’s imagination or the product of gossip, and that he has come to accept it as fact with the passage of time.  It is telling that he was not nearly so emphatic or detailed about during the interview of 26 April 2007 as he was in his evidence.

    [57]On the basis of all the evidence on this topic, it cannot be accepted on balance that this information ever came to light in the way, or containing the content, suggested by Mr Dighton.  There is simply no confirmation to be found anywhere to support this supposed course of events.  And for reasons already articulated it would not have mattered anyway.

    [Footnotes omitted]

1. There is a question as to whether the judge disbelieved Mr Dighton as to the receipt of the further information. Mr Whitington submitted that if he did it was a rare case that a judge would disbelieve someone who was actually advancing testimony which was destructive of their own case, namely, that there was further information available which was not followed up. He therefore challenged the judge’s findings in this regard.

2. Mr Whitington relied on the authority of Plesa v Griffiths (1977) 15 SASR 434 for general propositions as to the duty and onus of a driver in Mr Dighton’s position.

3. At page 436 Bright J, who was the trial judge, said:

   The run of cases demonstrates, taken generally, an increasing judicial benevolence. It is clear from the current of authority that a plaintiff does not now have to engage in useless ritualistic inquiries. The only inquiries that are material are inquiries that might reasonably be expected to be possibly fruitful. Harrison's case shows that in some cases, where inquiries would be futile, no inquiries need be made. What is “due” inquiry and search must be a question of fact in every case.

   Mr Whitington accepted the trial judge’s reliance on the propositions summarised by King J in Plesa. The trial judge dealt with these at [46] and says:

   [46]…

   1.    The onus is on the plaintiff to establish that the stipulation has been complied with.

   2.    The stipulation is for the protection of the nominal defendant and imposes no obligation, as such, upon the plaintiff. It is a single stipulation, namely, that “the identity of the vehicle has not after due inquiry and search been ascertained”. Consequently, if the circumstances are such that any inquiry and search would be futile, the stipulation is complied with notwithstanding that there has been no inquiry and search: Harrison v Nominal Defendant. Ritual steps of the success of which there is no real likelihood are not necessary: Griffiths v McNicholl.

   3.    “Inquiry and search” expresses a compound idea. The plaintiff is not required to prove activities which separately answer the descriptions “inquiry” and “search”; Cavanagh v Nominal Defendant, p. 380 and Slinn v Nominal Defendant.

   4.    The inquiry and search required is that which is “reasonable in the circumstances”: Blandford v Fox, or which is such “as might appropriately be made in the circumstances of the case”: Harrison vNominal Defendant.

   5.    The word “due” accommodates to the circumstances of the case the nature and extent of the inquiry and search which is required; Slinn vNominal Defendant. These circumstances include not only those which have a bearing on the likelihood of tracing the vehicle but also those which are personal to the plaintiff, such as his state of knowledge and understanding, his physical and mental capacity to undertake or institute inquiry and search (Cavanagh v Nominal Defendant), and the resources and opportunities available to him (Kaissis v Nominal Defendant).

   6.    If due inquiry and search has in fact been made it is not necessary that it should have been made by the plaintiff or by persons acting on his behalf: Slinn vNominal Defendant.

   7.    “Has not … been ascertained” means ascertained by the plaintiff or those acting on his behalf. It is immaterial that knowledge as to the identity of the vehicle might, unknown to the plaintiff, exist in others: Cavanagh vNominal Defendant.

   8.    The question of whether the stipulation, understood in accordance with the above propositions, has been complied with is a question of fact …

   [Footnotes omitted]

4. Mr Whitington also relied on the authority of Cavanagh v Nominal Defendant [1958] 100 CLR 375 where Dixon CJ said at page 380:

   It will be seen that an essential condition of the liability imposed upon the nominal defendant is that the identity of the motor vehicle cannot after due inquiry and search be established. But the language in which the condition is expressed is indefinite and impersonal. It is impersonal because it is not stated who must inquire and search. It is indefinite in more than one respect. The word “established” seems to have been employed to convey something more than “ascertained” and something less than “judicially proved by evidence”. The two words “inquire” and “search” express a compound idea. “Due” may be taken to mean due in the circumstances. It is apparent that in the case of death the plaintiff may be an executor, a widow, an infant child or a relative who has no knowledge of the matter. In the case of bodily injury the plaintiff may be a sufferer whose very injuries have disabled him from doing anything on his own account by way of inquiry or search.

   And also at page 380:        

   The words “cannot be established” must be confined in their operation to the plaintiff or those acting for or on behalf of the plaintiff or in his interest. They cannot apply or operate universally. For there may be many, including the driver of the motor vehicle himself, who could “establish” its identity but who do not come forward and are not found or will not speak.

   And also at page 381:        

   … Perhaps the effect of the material part of the provision might be summed up by saying that the condition it imposes is that the claimant is not able to provide any adequate information as to the identity of the vehicle notwithstanding that the claimant and those acting for the claimant with his or her authority have taken such measures to ascertain it as were reasonable in the circumstances of the case having regard to the situation of the claimant.

5. Mr Whitington then referred to the decision in Slinn v Nominal Defendant (1964) 112 CLR 334 as authority for the proposition that a “clue” or “lead” as to the identity of the other driver/vehicle will ordinarily be a matter that requires following up. See Barwick CJ at 339:

   In my opinion, it ought not to have each of the integers segregated so as to require them each to be satisfied in every case. The concept, I think, is that there should be inquiry and that inquiries when they yield leads should be followed up. Asking questions without pursuing answers may very well be found insufficient.

6. He also relied on Harrison v Nominal Defendant (1975) 50 ALJR 330 at 332 where Barwick CJ said:

   Whether or not the identity of the vehicle might have been established after inquiry and search appropriate to the circumstances of the case had been made is a question of fact. That, in my opinion, is the relevant issue in a case brought under s 30(2)(a) of the Act. It is not whether some inquiry and search has been made.

   …

   If a man were killed on a lonely road by a vehicle which did not stop and which left no trace of its identity, his dependants could succeed under s 30(2) though no inquiry or search of any kind had been made. In that case it could readily be concluded that the identity of the vehicle cannot be established after due inquiry and search. In fact, in such a case there was no clue as to the identity of the vehicle which can be followed up.

   …

   The instant case is an example of what I have so far said. Nothing which the plaintiff or the taxi-driver or the police could have done was likely to enable the identity of the vehicle to be established. This is not to say that where there is available a clue to the identity of the vehicle it ought not to be followed up or the trail allowed to grow cold; but where there is no clue of any kind it seems to me that it is open to a tribunal of fact to find in the circumstances of the case that the identity of the vehicle cannot be established as in the terms of the sub-section.

7. The submission resulting from the reference to those decisions was that there were ample clues in this matter and that the judge was wrong in finding that the trail was cold. Likewise it was suggested that the judge’s finding, that the information allegedly passed on to Mr Spehr was mere conjecture or gossip, was wrong.

8. Mr Trim QC for Mr Dighton submitted that there was a cut-off point in this matter when the trail went cold approximately two months after the accident. Mr Trim correctly conceded that depending on circumstances and the facts of individual cases it was never possible to say that the inquiries should not be further pursued but that this was not such a case.

9. Mr Trim’s main contention was that the trial judge’s findings in not accepting on the balance of probabilities that the information was ever provided to Mr Dighton was crucial. He submitted that the trial judge was entitled to conclude that the suggestion by Mr Dighton was “either a figment of Mr Dighton’s imagination or the product of gossip”.

10. Mr Trim submitted that the trial judge has clearly rejected Mr Dighton’s evidence on the topic of his receipt of that further information. He said it was a principle and key finding and analysed His Honour’s reasons in the paragraphs previously referred to. He pointed to the fact that the judge uses the word “rejected” in his reasons for costs dated 2 March 2012 at [14] where he says “In the result the evidence on this topic was rejected as ‘more likely to be a figment of the plaintiff’s imagination or the product of gossip’ rather than being of substantial or probative value”. Upon that finding Mr Trim submitted that if it was, as the judge found, likely a figment of Mr Dighton’s imagination or the product of gossip, how could it be likely to lead to some productive inquiry as to the identity of the driver of the vehicle.

11. Mr Trim submitted that by mid-2005 the police investigation had been closed for some months with the police report containing no information about the vehicle because it was not filed by the police officer after the information was provided after the accident.

12. Mr Trim rationalised the suggested inconsistencies in paragraph [55], [56] and [57] as earlier set out. He submitted that the inevitable conclusion referred to in paragraph [55] relates to the state of affairs in August 2004 at the conclusion of the police inquiries. He submitted that the next paragraph [56] is where His Honour considers suggested intelligence or information coming into the possession of the plaintiff in mid-2005 and then finally the judge says for the reasons already articulated that, apart from their being no basis to find that such information existed, it would not have mattered in any event.

13. Putting it another way Mr Trim submitted that even if Mr Dighton knew the name of the person who allegedly gave the information to Mr Spehr that would not lead to a finding that the name or knowledge of the provider of that information would have led to the identity of the unidentified vehicle.

    Decision on s 115

14. I do not accept that there is a cut-off point for the establishment of the cause of action as close to the time of the accident as suggested by Mr Trim. As he acknowledged it is impossible to be precise with a cut-off point.

15. It is my view that, if there was credible information available to Mr Dighton as he suggested, it would certainly have amounted to a clue or a lead to the identification of the unknown vehicle and it would have been in those circumstances incumbent upon Mr Dighton to make further inquiry to comply with his duty to make due inquiry and search pursuant to the provisions of s 115.

16. Such inquiries would not in my view have been ritualistic and would have been reasonable in the circumstances. The trail may have gone cold but not to the extent that the inquiries could and should have been made.

17. As I have said Mr Trim’s main point was that Mr Dighton’s evidence on this topic was rejected. I have re-read the judge’s reasons, and although difficult to follow in some respects because there are recitations of issues without any specific findings, the judge nevertheless does in my view make a finding that he has rejected the evidence of Mr Dighton. That was a finding by inference from the principle reasons but was specifically stated in the reasons given on the costs application. I agree that the judge has rejected Mr Dighton’s evidence on that topic.

18. There are good reasons for this rejection in my view. Accepting that Mr Dighton did pass some information to the police but that it was for whatever reason not recorded by the police, the fact is he did not provide his solicitors with that same information. It has to be assumed that if provided with the information the solicitors would have acted upon it. There is no explanation as to why the information was not the same as that provided to the police. Maybe a lapse in memory is the reason. Maybe, as the judge says, it was a figment of his imagination during a time when he was traumatised by the events of the accident.

19. The alleged new information was obtained shortly before Mr Dighton instructed McKinlay Law. It is a telling factor that he provided none of that information to his solicitors. The letter sent to the nominal defendant was unhelpful. Had the solicitors known of the further information they would have followed it up. The inference is that they were not told.

20. In mid-2005 when the alleged conversation with Mr Spehr regarding his hearsay information from the unknown driver from Booths, took place, there would have been an obligation in my view to take this matter further. However as Mr Trim submitted, correctly in my view, the crucial findings are contained in the combination of paragraphs [55], [56] and [57] of His Honour’s reasons. His Honour specifically finds that no further inquiry would have led to the disclosure of the identity of the vehicle. He clearly does not accept that Mr Dighton came into receipt of the information he suggested and from the comments in his costs judgment it is apparent that the judge rejected Mr Dighton’s version.

21. Therefore in two separate reasons for judgment the judge has made it clear that he has not accepted that the information was provided and that, even if it existed at that time, it would have resulted in a futile inquiry.

22. The nominal defendant relies on the information allegedly conveyed to Mr Dighton for its argument that there was not due inquiry and search. The whole argument depends upon that information having been conveyed to Mr Dighton. The trial judge has rejected that evidence and therefore the argument of the nominal defendant fails because the platform for the argument, namely, that such information was conveyed to Mr Dighton, has not been established. It is not possible for this Court to say that His Honour was wrong in making that finding. It was an available finding on the evidence. This Court should not interfere. Accordingly I would dismiss the argument by the nominal defendant based on the failure of Mr Dighton to make due inquiry and search pursuant to the provisions of s 115 of the Motor Vehicles Act.

    Damages – overview

23. It is necessary to see how the judge approached the assessment of both past and future earning capacity before dealing with the respective arguments. The nominal defendant complains of the judge’s approach to and the methodology used in the assessment of the claim for future economic loss. Mr Dighton by cross-appeal complains that the judge has made findings which are not based on the evidence. It is therefore necessary to look at both the nominal defendant’s appeal and Mr Dighton’s cross-appeal together.

24. Before doing that I will briefly summarise the injuries sustained by Mr Dighton in the accident. He was aged 34 years at the time of the accident and at trial he was aged 41 years.

25. A convenient summary of Mr Dighton’s post accident problems is contained in the report of Dr Czechowicz dated 14 November 2006.

26. Dr Czechowicz says:

    He said that he returned to work and tried to continue working, fighting the fears that he was experiencing. He said that the next problem was that when continuing to do his job he would find himself holding the steering wheel too tight causing his whole body to spasm and developed back problems.

    The symptoms he tried to treat physically and subsequently continued to receive intermittent treatment whilst continuing in his job for some months.

    For the next 9 months he battled with increasing problems also having nightmares, unable to sleep, finding himself getting more and more angry and eventually developing depressive symptoms with which he went to his LMO (Dr Kunze).

    And also:

    After seeing his LMO he says that he stopped working on 22/06/2005 whilst further investigations were done. He now complains of significant symptoms of depression namely, vegetative symptoms, with poor sleep, poor food intake, feeling nervous and also feeling very angry.

    When asked specifically about suicidal ideas he said he did not have any however, there have been some reported homicidal ideas which he shared with his LMO. He did not say that he was homicidal when he came to see me. He also had some somatoform symptoms of pins and needles as well as the usual issue associated with post traumatic stress disorder namely of having had a severe shock in a situation which most people would find distressing. Subsequent to the accident he had progressively increased avoidance of driving and then he was also developing increasing physical symptoms in relation to his back.

27. The judge finally assessed damages in his supplementary reasons of 23 December 2011. The total assessment was in the amount of $535,081.84. The major components of this award were $208,440 for past loss of earnings and $315,288.60 for loss of future earning capacity. The subtotal before deduction of payments made by WorkCover was $713,680.17. The items under challenge by both parties are the respective amounts for past and future loss of earning capacity and the amount of $49,500 awarded for future medical care.

28. In relation to past economic loss, a schedule was provided by Mr Dighton’s solicitors to the judge. This schedule calculated an amount, using gross earnings figures, that Mr Dighton would have earned had he been employed up to the time of trial in his pre-accident occupation less the amounts which he actually earned during that period. There was no challenge at trial to the arithmetical calculations.

29. The judge after making calculations based on the schedule provided reduced that amount by 40%. The judge found at [140] of his 8 December 2011 judgment:

    [140]Based on Mr Dighton’s entire work and personal background detailed earlier, and briefly revisited above, he has failed to prove the probability that he would have remained continuously full-time at Booths right up to the date of trial, or that he would have secured no lesser employment elsewhere.  That background history strongly suggests he would not.  As the High Court recently pointed out in Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd, a degree of estimation is involved where the precise loss cannot be identified.  Doing the best one can in light of all this material, the court proposes to reduce the projected pre-trial economic loss by 40 per cent in order to give due effect to the above findings, the identified pre-trial problems and the other adverse contingencies. …

    [Footnote omitted]

30. The nominal defendant does not pursue its appeal against the calculation of past economic loss, but Mr Dighton in his cross-appeal claims that the amount awarded is insufficient.

31. For future economic loss the judge used a net weekly income figure of $1,320 as his starting point in determining the amount to be allowed for future economic loss. He applied a multiplier to that amount. The multiplier was calculated to age 65 and was 713. After applying the multiplier to the net weekly income he then reduced the overall amount by two-thirds for his award of $315,288.60 for future economic loss.

32. Mr Whitington argued that the approach taken by the trial judge is wrong. His argument was that the trial judge started with a base case which was in fact the best case scenario for Mr Dighton. In other words the base case was not consistent with the judge’s findings. Mr Whitington submitted that, in taking the pre-accident earnings at $1,320 per week, the judge ignored all of the pre-accident difficulties which the judge found that Mr Dighton had encountered. Mr Whitington argued that the judge assumed that the plaintiff would work through to 65 for the purpose of his base calculation when he in fact had held he would work considerably less time than this. Therefore a multiplier to retirement age 55 or 60 was more appropriate as a starting point.

1. Mr Whitington set out in his written submission the steps that he submits the judge should have followed:

   ·a finding as to the plaintiff’s net earnings as at the date of trial/assessment, assuming the subject accident had not occurred, ie his starting earning capacity, which will take into account any diminished capacity and/or intermittency since the date of the accident;

   ·a finding as to the way in which the plaintiff would have then exercised that earning capacity, ie the most likely career path of the plaintiff post trial. In this case the plaintiff was equipped only for truck driving or labouring work, with little or no prospect of advancement;

   ·consideration of any increases in remuneration over the working life of the plaintiff, for example, through promotion;

   ·a finding as to the likely retirement age of the plaintiff. While accepting the appropriateness of assuming a retirement age of 65 for men in ordinary circumstances, here there were findings suggestive of earlier retirement (or exhaustion of earning capacity);

   ·an allowance for positive and negative contingencies in relation to the above, as well as an allowance for the usual vicissitudes of life;

   ·in all of this, particular regard had to be given to the plaintiff’s circumstances, including his skills and training, work history and experience, the medical evidence as to his diminished capacity for work, and the possible effects of economic circumstances (including as to the availability of work). The amount arrived was required to be adjusted to reflect the time value of money – usually through a multiplier which reflects the mandated 5% discount rate.

2. Mr Whitington submitted that it was impossible to tell how the judge reached the figure of two-thirds for the reduction he made from the capitalised figure. He submitted that whilst a two-thirds reduction appears significant the reasoning must be transparent to see how that is reached. In attempting what he called a “reverse engineering” of the trial judge’s award for future economic loss and with a much lower multiplier the award made by the judge means that the plaintiff would have continued to work at approximately 60% capacity for a period of 13 years following the judgment, that is, until about 55 years of age.

3. Mr Trim argued that it is illustrated by that “reverse engineering” method how reasonable the judge’s calculations were if the findings were correct. This was all subject to the important proviso that Mr Trim disputed that the evidence supported a conclusion that Mr Dighton would have been overtaken by pre-accident events. Mr Trim submitted the evidence does not support that conclusion. I will deal with this submission later in these reasons.

4. Mr Whitington’s submissions are based on the findings which the judge has made regarding Mr Dighton’s pre-accident history, including his employment history, and social and medical history. All of those findings are under challenge in the cross-appeal.

5. If the findings made by the judge which are challenged in the cross-appeal are not justified on the evidence then Mr Whitington’s argument will fail. It is therefore necessary to examine the arguments on the cross-appeal before returning and discussing the award made for future economic loss.

   The cross-appeal

   The judge’s findings

6. Both counsel and the Court have experienced some difficulty in isolating precise findings because the reasons for judgment contain a narrative mixed with comment and discussion together with the recitation by the judge of the respective arguments put forward by the parties.

7. It seems to me that the relevant findings made by the judge are to be found within the following paragraphs of the reasons. I have underlined the significant findings as I see them.

   [144]On the whole of the evidence it is not possible to be satisfied on the balance of probabilities that Mr Dighton would have continued to work continually until the age of retirement or that he would have achieved better remunerated employment.  On the contrary, given his work history and the personal problems and attributes that were mounting up, the job at Booths was by no means secure.  It is quite evident from various sources in the evidence before the court, that before this accident Mr Dighton had for many years suffered from mood swings and depression, had difficulty in eating and sleeping properly, was a long-time heavy user of cannabis and had low levels of energy and drive, quite apart from repeated unreliability in the work place.  The employment history made it likely he would find truck driving work opportunities from time to time and especially in times of financial need and especially when more abundant seasonal work was available, but that history attests that it would not be consistent or long standing.  He clearly held an overly optimistic view of his abilities and capacities for promotion.  As an average and consistently unreliable employee in respect of showing up for work, he was never likely to achieve a status beyond that of an employed truck driver.

   [145]Most probably there would be longer periods of unemployment between jobs as he grew older.  Given the difficulties of obtaining employment following work related injuries, his advancing age and the competitive job market, full-time employment to age 65 or even 60 was inherently unlikely: Wade v Allsopp.

   [146]At the same time, the fact that he was able to hold down at least some work is evidence of a degree of earning capacity. It might be acknowledged there is a strong body of evidence that he will not work again, but on the other hand an equally strong body of expert evidence suggests the condition will improve once this case is finalised.  It must also be factored in that Mr Dighton exaggerated the true extent of his incapacities. The film produced by the defence, although not particularly conclusive, shows that he has a reasonable range of movement when he wants to.  Many of his personality defects pre-date the subject accident.  As time goes on and these proceedings are finally behind him, his condition will more than likely improve.  That prospect is on all the medical evidence to be measured in terms of years given the established course and persistence of the present pain and depressive cycle.

   [Footnotes omitted]

8. These are all relevant findings, combined with some commentary, to the effect that there are very many adverse contingencies relating to Mr Dighton’s pre-accident history which clearly the judge has used in reducing the amount he initially calculated by two-thirds in the case of future earning capacity and 40% in the case of past loss of earning capacity. Mr Trim attacks these findings.

9. I also set out His Honour’s findings at paragraph [148], again with my underlining:

   [148]The probabilities are that the job at Booths might have pertained for the short to mid-term, but it was never going to be a permanent or guaranteed source of enduring work.  Mr Dighton was likely to have taken significant periods off work in order to deal with the other mounting pressures and distractions in his life which were beginning to compound by mid 2005, manifested by the outburst over child support and a rebellious attitude in relation to relatively minor issues in the workplace, even though most of that sprang from the WorkCover claim. …

10. His Honour also made a significant finding in relation to the amount to be allowed for future medical care and expenses. That finding is at paragraph [155] as follows:

    [155]As found earlier, Mr Dighton’s medical condition is likely to continue for some years.  It is clear he will need psychiatric assistance, including therapy, in order to end the chronic pain cycle into which he has so deeply fallen. And as found earlier, not all of this can be attributable to the accident and his situation is likely to improve once the litigation is resolved.  In the meantime he remains vulnerable to future psychiatric episodes. ...

11. The genesis for these findings set out above is contained in the discussion by the judge at [139] where he says:

    [139]… By the time he settled into truck driving he consistently proved unreliable to the extent that he evinced a consistent pattern of failing to show for work at times, including the time he was at Booths. His work rate and ethic were not particularly outstanding either, at any time after leaving the railways. There was also the persistent use of cannabis which could only have served to reduce his working capacity and reliability, quite apart from unresolved anger management issues and depression.

12. As I will find later neither the findings nor the basis for them are justified on the whole of the evidence.

13. Mr Trim mounted an attack on those findings by making detailed submissions both orally and in writing, and by providing evidence references relating to the topics on which he challenged the findings. I have reviewed those references to see whether they represent a fair picture of the whole of the evidence. In my view they do.

14. There was evidence called from pre-accident employers of Mr Dighton that he was a reliable employee. Mr Richardson of Booths Transport actually indicated that there was no reason why he could not continue to drive to age 65 or even 70. Mr Richardson was employed by Booths as an operations assistant. His duties included allocating daily driving tasks to the drivers. Mr Rohrlach from Booths in cross-examination agreed that he had previously described Mr Dighton as an excellent worker and Paula Norton said he was a good worker who could be left unsupervised. Mr Rohrlach was, at the time of trial, Depot Manager of Booths Transport tanker division. His role included day-to-day overseeing of the operation of the business in shipping bulk wine in tankers. Mr Richardson had more direct contact with Mr Dighton than Mr Rohrlach.

15. Mr Rohrlach was called by the nominal defendant. His evidence in chief was that Mr Dighton was a spasmodic worker but it appears that was so more in the later than the earlier period of his employment. It is not clear whether it was in fact after the accident.

16. Ms Norton worked with Mr Dighton before he worked for Booths. He worked on an abalone farm for about 12 months. She was a supervisor of Mr Dighton.

17. After the accident when he left Booths Mr Dighton worked as a truck driver for a Mr Williams at Angle Vale. He said Mr Dighton was not too reliable.

18. The judge set out the evidence relating to Mr Dighton’s pre-accident work at [60]. Whilst that summary appears to accurately represent the evidence the conclusions drawn from it are not justified in my view.

19. The findings of the judge which I have set out earlier from his reasons at [144] to [146] and [148] are not in accord with the evidence of the employers and the medical evidence. I will deal with those findings after discussing the evidence.

20. The preponderance of the evidence and indeed the judge’s findings were that Mr Dighton suffered a post traumatic stress disorder. He was a different person after the accident. He became progressively worse. The post traumatic stress disorder was the substantial cause of his problems. It was described by some doctors as a classic post traumatic stress disorder and that as a result of the disorder Mr Dighton was suffering from chronic pain. It also triggered bouts of depression.

21. The medical evidence generally, although acknowledging that in the past Mr Dighton had had some anxiety and some mental health problems, showed that he had no psychiatric or mental health issues but more personality traits which meant he was unable to cope with the stress of the motor vehicle accident and its aftermath. This is a classic example of taking a victim as you find him.

22. Events in the past included a marriage break up, the rape of his mother and another motor vehicle accident in which the other driver was killed. In 1991, Mr Dighton was driving a truck travelling from Lock to Queensland. He was approaching a T-junction when another vehicle failed to stop, resulting in Mr Dighton colliding with the vehicle. The other driver died. In about 1989, Mr Dighton unfortunately learned that his foster mother had been raped by one of Mr Dighton’s work colleagues in Port Augusta. The rapist was gaoled. Despite all that Mr Dighton had persisted and kept at his work. These events, although traumatic, did not interfere to any significant degree with Mr Dighton’s ability to continue his work as a truck driver.

    The medical evidence

23. Dr Shute was a general practitioner who first saw Mr Dighton at Victor Harbor in 2007. He said that he did not expect Mr Dighton to ever regain his pre-accident level of functioning and that he was totally incapacitated from driving trucks. He said that Mr Dighton’s history over six years showed no improvement and that he would be guarded on the prospect of any return to work. The clear effect of his evidence is that any prognosis was very guarded and that realistically the doctor could not see this man returning to work.

24. Dr Czechowicz was a specialist psychiatrist who first saw Mr Dighton in March 2006. It was his view that Mr Dighton’s capacity to drive trucks was impaired and in particular precluded him from being able to drive a road train. He described his capacity for work as grossly limited. He said his capacity for work at the time he last saw him was less than eight hours per week and was likely to continue for at least another two or three years. He thought Mr Dighton may require ongoing counselling and care from his general practitioner for the rest of his life.

25. Dr Pols was another specialist psychiatrist who examined Mr Dighton at the request of his solicitors early in 2011. He specifically commented that the conclusion of the WorkCover litigation had not resulted in any gradual improvement. He could not see Mr Dighton returning to work in the future and said it was quite possible that Mr Dighton might remain how he presented when seen by Dr Pols for the rest of his life.

26. Dr Kutlaca examined Mr Dighton at the request of the solicitors acting for the nominal defendant. He was of the opinion that Mr Dighton would regain his psychiatric fitness 12 months after the conclusion of the litigation. He agreed that there may remain a permanent psychiatric disability in relation to an impaired ability to drive trucks and also in his general life. He put this as a very low estimate of 2% to 3%, whatever that means. His emphasis was clearly on the aspect of Mr Dighton’s depression being connected with the compensation case and that it would resolve when the compensation issues were concluded.

27. Dr Cullum was a consultant occupational physician who reviewed Mr Dighton at the request of his solicitors. This was in early 2007. He said that Mr Dighton had a chronic pain disorder but it was not just psychological as there were physical issues as well. It was his opinion that Mr Dighton was quite unfit to return to pre-accident employment as a truck or road train driver on both physical and psychological grounds. He considered him unfit for work.

28. Dr Brown was another occupational physician who saw Mr Dighton at the request of his solicitors. This was in October 2008. At that time she formed the view that Mr Dighton was totally incapacitated for his pre-injury duties as a truck driver. She considered that the restrictions were likely to be long term.

29. Dr Kunze was a general practitioner who saw Mr Dighton at Nuriootpa from mid-2006. He formed the view that Mr Dighton was unable to drive trucks. He indicated that it was difficult to give any realistic prognosis at that time. He wrote a further report in February 2007. He thought at that time that the psychological sequel to the accident was significant. He suggested an occupational physician.

30. Dr Cornish was another specialist psychiatrist employed as a senior consultant in the Pain Management Unit at the Flinders Medical Centre. He saw Mr Dighton at the request of Mr Dighton’s solicitors in 2010 and prepared a report dated 24 May 2010 resulting in a summary of his consultations.

31. He described his medical history prior to the accident as being unremarkable. It was his opinion that Mr Dighton was suffering from a major depressive disorder, a post traumatic stress disorder and that there was no major organic pathology.

32. As can be seen the medical experts do not paint a very rosy picture for Mr Dighton’s future. As to the possibility of any contributing factors to Mr Dighton’s present condition, apart from the accident, the evidence again is persuasive.

33. Dr Kunze said that there were no contributing factors apart from the accident. This was despite the fact that he noted marriage stressors prior to the accident.

34. Dr Czechowicz referred to marital problems and Mr Dighton’s use of alcohol and other substances and formed the view that the post traumatic stress disorder which occurred was specifically related to the accident in 2004. He formed the view that the crucial event was the accident of 2004 and even if other factors were at work, the probabilities were that the post traumatic stress disorder would have been, without the accident, far less severe.

35. Dr Shute said that pre-accident Mr Dighton had no definitive psychiatric or mental health issues. He acknowledged some dysfunctional personality traits which he said impacted on his coping mechanisms. He also mentions that at the time of his separation from his first wife Mr Dighton received a psychiatric assessment but no treatment. He recovered well from this event.

36. Dr Pols, referring to the relationship break up, said he initially became quite depressed but refers to a psychiatric assessment by Dr Clarke in 2001 which he said showed no major depression or post traumatic stress disorder at that time. He specifically says there was an absence of psychiatric pathology despite his depression at the time of the break up of his relationship. He said that Mr Dighton was not clinically depressed at that time.

37. Dr Ewer, who examined Mr Dighton for the solicitors for the nominal defendant, found that issues involving work and issues with child support payments were significant. He said these may have contributed to his distress. He does say, however, that they were mild influences rather than substantial influences. He noted a past history of substance misuse. He did not consider that Mr Dighton was suffering from a post traumatic stress disorder. He gave reasons for this. There is no reason to go into those reasons because the trial judge rejected Dr Ewer’s opinion and accepted the opinion of the other medical experts that, as a result of the accident, Mr Dighton did suffer from a post traumatic stress disorder.

38. Dr Kutlaca said he had no doubt regarding pre-existing psychological issues. He placed emphasis on substance abuse and the suggestion of a depressive disorder back in 2001. He conceded that Dr Clarke, who examined Mr Dighton in 2001, did not diagnose a psychiatric illness.

39. Dr Clarke himself referred to Mr Dighton’s attendance with a counsellor in Port Augusta because of the relationship problems. Dr Clarke said that it was unclear to him in 2001 whether Mr Dighton fulfilled the criteria for a major depression and he noted that Mr Dighton’s symptoms improved with the cessation of drugs and with the changing social situation.

40. The judge refers to counselling undertaken by Mr Dighton and his then partner Ms Morris. The judge said at [6]:

    [6]It is clear from the evidence that the couple sought counselling in relation to the impending breakup. They attended a counselling session at Eyre Mental Health Services on Thursday 14 February 2002. Notes of the assessment kept by Registered Nurse Bennett (now Williams), which ultimately became Exhibit D36, speak of self-referral for assistance ‘to deal with the break-up of his relationship’. The notes describe Mr Dighton as having difficulty controlling anger and feeling depressed about that as well as about the rape of his mother some 10 years earlier. There was a referral for anger management counselling. No clear diagnosis was made at that time. The notes do not purport to be a word perfect account of the conversations involved in the assessment but they did purport to summarise, according to Nurse Williams, the words ‘the client would have used’.

    [Footnote omitted]

1. The judge returns to this note in his reasons at [108] and clearly places significant importance on it. It appears the judge also believed that a questionnaire completed for Dr Ewer in August 2005 was significant: see reasons at [123]. The judge says:

   [123]… As a matter of fact the past history of anger, aggression and the emergence of physical symptoms taken by Dr Ewer predated the subject accident. …

   [Footnote omitted]

2. There is a dispute between the parties on the significance of this comment. The footnote for the above comment clearly refers to post accident anger and aggression. The paragraph of Dr Ewer’s report of 24 August 2005 referenced in the footnote relates to Mr Dighton’s feelings and symptoms post-accident.

3. Mr Whitington submitted that it is not, however, a typographical error and said “properly understood the trial judge made a separate or additional finding that as a matter of fact the past history of anger, aggression … predate the subject accident”. I reject that submission even if it is interpreted in that way, in my view it is a finding not borne out by the whole of the evidence.

4. The nominal defendant submits in its written submissions in reply that the findings challenged by Mr Dighton were open because there was some evidence to support them. In my view this is not a case where the appeal court is being simply asked to come to the opposite conclusion on the basis of conflicting evidence. It is more than that. The thrust and strength of the whole of the evidence is against that found by the judge. I have considered the references supplied as part of the reply. In my view they do not overcome the general thrust and strength of the evidence as outlined in Mr Dighton’s submissions.

5. With those references in mind it is my view that the judge has overstated the significance of Mr Dighton’s pre-accident history both as to his past and future employability and as to his pre-accident health. Whilst there is evidence in dispute on some aspects, my reading of the medical reports tendered and the oral testimony of the doctors who were called to give evidence is that by and large they are of the opinion that had it not been for the accident the likelihood is that Mr Dighton would have continued much as he had in the past with reasonably minimal interruptions to his employment. That being the case, the findings of the judge highlighted earlier in paragraphs [144] to [146] inclusive and in [148] of the judge’s reasons should be disturbed.

6. My review of the evidence indicates that the judge erred in these conclusions:

   (a)given his work history and personal problems … the job at Booths was by no means secure.

   (b)repeated unreliability in the work place.

   (c)full time employment to age 65 or even 60 was inherently unlikely.

   (d)there was a strong body of evidence which suggests the condition will improve once the case is finalised.

   (e)Mr Dighton (without the accident) was likely to have taken significant periods off work to deal with other mounting pressures which were beginning to compound by mid-2005.

   (f)not all of his chronic pain cycle can be attributable to the accident.

7. It is my view that Mr Dighton has established on the whole of the evidence that although he may not have remained continuously in employment at Booths up to the time of trial it is more likely than not that he would have had regular employment as a truck driver either at Booths or somewhere else had it not been for the accident.

8. There is no basis for the finding that the job at Booths was not secure. The evidence from Mr Richardson at Booths points to the contrary.

9. Likewise Mr Dighton’s pre-accident health is not to the degree found by the judge in relation to the way in which Mr Dighton had been affected by other life events including a fairly traumatic separation.

10. In addition the finding of his unreliability in the workplace is not justified on the whole of the evidence.

11. I take into account that there are credit aspects relating to Mr Dighton including the video footage produced by the nominal defendant, although the judge finds it not particularly conclusive. The judge finds that many of Mr Dighton’s personality defects pre-date the accident and that may well be so. It is not to the point, however, that they pre-dated the accident unless it can be shown that it was likely that they would have led to the situation in which Mr Dighton now finds himself. The evidence does not support that. The nominal defendant has not discharged its onus to prove that aspect.

12. The judge found that the job at Booths might have “pertained for the short to mid term”. He also found that Mr Dighton was likely to have taken significant periods off work to deal with what he calls the mounting pressures and distractions in his life. Again the evidence on a close review does not support that finding.

    Past economic loss

13. In view of my conclusions I now consider how the question of past economic loss should be considered. Mr Dighton has cross-appealed on this aspect.

14. The judge deducted 40%, for the contingencies he took into account, from the arithmetical calculation provided by Mr Dighton’s solicitors. The accident happened in August 2004. The date of the assessment of damages was December 2011. He stopped work at Booths in mid-2005. His other work after Booths effectively stopped in about May 2007.

15. On the findings which should have been made on the evidence, it is my view that a reduction for all contingencies for the time up to judgment is probably in the range of 20% to 30%. I will use 25%. Applying that discount to the gross figure of $347,400 calculated by the judge means a total of $260,550. I would therefore substitute an amount of $260,550 for the judge’s figure of $208,440 to compensate for past loss of earning capacity. There will have to be an adjustment on the amount of interest for past loss of earning capacity.

    Future economic loss

16. In relation to the assessment of damages for future economic loss, it is my view that Mr Trim, for the reasons already stated, has succeeded in establishing that the findings made by the judge are not borne out by the whole of the evidence. The overall strength of the evidence is against the findings of the judge.

17. Therefore the premise upon which Mr Whitington based his argument for loss of future earning capacity is not present. In other words the assessment must be made, not on the basis of the judge’s findings, but on the basis that this man’s likely future work, had it not been for the accident, would have extended beyond the time allowed for by the judge.

18. As an example, if the reduction of two-thirds by the judge for the contingencies he allowed for were adjusted to 50%, the award for future economic loss would be approximately $470,000. That was based on the multiplier to age 65.

19. Mr Whitington complained about the methodology employed by the judge. In my view whilst a transparent approach may have been preferable and may have been easier to follow, provided the basis for the allowance for the reduction for contingencies can be gleaned from the reasons, then there is no reason why a discount at the end of two-thirds should not be applied. As it turns out I disagree with the amount of the discount because the evidence does not support it. The reasoning is sufficiently transparent albeit based on incorrect findings. On the whole of the evidence it is my view that a 50% discount is appropriate for loss of future earning capacity to take into account all adverse contingencies.

20. If I follow the steps suggested by Mr Whitington at [72] of these reasons, but using substituted findings as I have discussed, the calculation would be based on a retirement age of 60 but with more or less continued employment as a truck driver up to that point.

21. I have made a calculation based on a multiplier to age 60 which in my view on the whole of the evidence is more appropriate. If a multiplier of 624 (to age 60) is used, which multiplier was provided to the Court during argument, then the calculation becomes $1,320 by 624 equals $823,680 which, reduced by 50%, is $411,840. On the whole of the evidence I consider a fair result is that the appellant be compensated on the basis that he could have worked to age 60 but with a 50% reduction for adverse contingencies.

22. Both parties were of the view that if it were possible this Court should attempt a reassessment of damages should it decide to interfere. In my view it is possible to perform such an assessment albeit on the basis of the fairly broad axe approach which I have used.

23. The judge allowed $49,500 for future medical care. The nominal defendant says this is too much because it does not reflect the conditions which may have developed even without the accident. Because I have indicated that the judge overemphasised those aspects relating to pre-accident health, it is my view that there is no need to interfere with that part of the award of damages.

24. For the reasons advanced, the appeal by the nominal defendant against the award for future economic loss should be refused and the cross-appeal by Mr Dighton for loss of future earning capacity should be allowed. For the amount awarded for future economic loss I would substitute for the figure awarded by the judge, namely, $315,288.60, the sum of $411,840.

25. The judgment amount should be adjusted accordingly to increase the amount for both past and future loss of earning capacity. There is an additional $52,110 for past economic loss and $96,551.40 for future loss of earning capacity. I would allow a further $4,000 for interest on past economic loss. In total therefore the judgment in favour of Mr Dighton should be increased by $152,661.40.

26. I would enter a judgment in favour of Mr Dighton in the sum of $687,743.24 in lieu of the previous judgment amount in the sum of $535,081.84.

27. I would hear the parties on costs.

28. DAVID J.              I agree with the reasons of Anderson J and I agree with the orders he proposes.