Peter Harold Zerk v Finemores Transport (Qld) Pty Ltd (Formerly Fleetxpress Pty Ltd) and Pilkington (Aust) Operations Pty Ltd No. SCGRG 89/2236 Judgment No. 4002 Number of Pages 13 Negligence

[1993] SASC 4002

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MILLHOUSE J

CWDS
Negligence - liability of master for injury to servant - Plaintiff suffered injury at work during subsequent operation - suffered serious stroke. Defendants liable for all his damage. Jones v Santrans Pty Ltd and Shaw Pipe Protection Pty Ltd 56 SASR 103, distinguished. Maloney v Commissioner of Railways 18 ALR 147, considered.
Damages - measure and remoteness of damages in actions for - tort - personal injury - 43 year old male invalid pensioner; Permanent disability; Past economic loss $150,000.00; Future economic loss $220,000.00; Past non-economic loss $30,000.00; Future non-economic loss $78,000.00; Past special loss $52,568.71; Future special loss $2,000.00; Interest $20,000.00; Total assessment $549,568.71

HRNG ADELAIDE, 18-20 June 1993 #DATE 25:6:1993
Counsel for plaintiff:                Mr R W Evans
Solicitors for plaintiff:             Mr I Margitich
Counsel for defendant Finemores:     Mr G Muecke
Solicitors for defendant Finemores: Norman Waterhouse
Counsel for defendant Pilkington:     Mr D Trim
Solicitors for defendant Pilkington: Proud and Co.

ORDER
Damages assessed.

JUDGE1 MILLHOUSE J In October 1986 the plaintiff was employed by the first defendant. He was almost 43 years old. He had lived at Pt Lincoln all his life. He had a wife, a son and a daughter. He had been a driver with the first defendant or its predecessors for ten years: he was highly regarded, one of their most experienced. 2. On 28 October in the course of his duties he went to pick up from the premises of the second defendant at Royal Park some crates of glass for transport to Pt Lincoln. I shall call the second defendant "Clarksons" as that is the name under which it traded, a name well known in South Australian industrial and commercial history. 3. The plaintiff drove a semi-trailer into the Clarksons store: he drove in the southern entrance and straight ahead so that the vehicle was facing a northern exit through which it would have been able to go once the load was on board. 4. The load was to consist of four crates of glass. The first of the crates weighed about two tonnes: its dimensions were about eight feet by seven feet by one foot. It was picked up from an area in the store by an overhead crane operated by a storeman, Mario Folino, two slings from the crane having been fixed to the crate by the other storeman Paul Francis. 5. The plaintiff had set up, in about two minutes, on the tray of the trailer, frames against which the crates were to lean. The frames were slightly to the east of the centre of the tray with the long sides parallel with the sides of the vehicle. The plaintiff was standing on the tray directing the crate into position. Folino with the crane remote control in his hand was standing on the floor to the west of the trailer facing it. Gibson was standing behind the trailer in such position as to be able to see how the crate was placed against the frames. 6. The plaintiff directed the crate so that it was placed, resting on its narrow base, leaning against the frame. He jumped up and down on the tray so as to wobble the trailer. He looked from the cabin end at the crate to satisfy himself that it was leaning sufficiently to make it stable against the frames. Francis looked from the other end and also was satisfied that the lean was sufficient. 7. The plaintiff signified his satisfaction to Folino: Folino asked the plaintiff whether he wanted props to keep the crate in position (the end of each prop would have been placed against the side of the crate and the other wedged against the coaming rail on the side of the tray): the plaintiff said that he did not: the slings were loosened: the plaintiff detached from the crate the sling nearer the cabin of the vehicle: he walked past the crate towards the back of the tray - the edge of the crate was only two inches or so from the gate at the rear of the tray - and undid the other sling. He threw both slings on to the tray to the east of the frames: Folino began to move the crane, with the slings attached, away from the trailer going to pick up the next crate. 8. Disaster] The plaintiff saw the crate slowly beginning to topple over to the west. He moved in front of it and put his hands up to steady and push the crate back. The load was too heavy: topple turned into fall: the pace of fall accelerated: the plaintiff turned away and took a couple of steps to the west, towards the edge of the tray. Too late] The crate crashed into him, throwing him down and pinning the lower part of his body. He lay on his stomach with his head and upper body over the edge of the tray. He was there for some minutes before the crate was levered off him. He was given first aid. His right leg was broken and he had other injuries. He was taken to the Queen Elizabeth Hospital. 9. I have given this account principally, but not entirely, from the evidence of the plaintiff and from a statement dated 16.12.86 of Paul Francis (most unfortunately since dead) and least from the evidence of Mario Folino. I found the last to be a quite unreliable witness. He is Italian by birth and gave most of his evidence through an interpreter: he was difficult to follow both in what he said and in the description of his movements in relation to the semi-trailer. My impression was that he resented being questioned at all, that after so long his memory was poor and that he was anxious to justify his actions. The only part of his evidence which I prefer to that of the plaintiff relates to the offer of the props: despite the plaintiff's denials I believe he was offered the use of the props, an offer which he refused. I do not accept Folino's account of his movements when manoeuvring the crate into position and afterwards. 10. Nor do I accept the whole of the plaintiff's account: in particular I do not accept that after he was pinned by the crate he looked up and saw above him the hook of the crane. I think that is anatomically impossible: I believe he was hit in the back and pinned, lying on his stomach: he could not have looked up (and was probably in too much agony to think of doing so). I reject the argument from Mr Richard Evans for the plaintiff that the plaintiff was somehow pinned on his side and could turn his head to look upwards. 11. There are two documents upon which I have relied. The first is a copy of the plaintiff's claim form for Workers Compensation. It is dated 31 October, that is before his second operation to which I shall refer later. In it the plaintiff gives a short description:- " Case of glass was unslung from o/head crane and was rested against a transporting frame. It toppled over knocking me from trailer but jamming right leg against combing rail." 12. The other is Paul Francis' statement. I acknowledge that it was taken some weeks later by a loss assessor in the presence of the factory manager, Mr Rex Charles Clayson: I accept Mr Clayson's evidence that no pressure at all was put on Francis when he was giving it. I also bear in mind that the statement has not been tested by the cross-examination of Francis and therefore its weight cannot be as great as that of sworn evidence. Yet the statement is the most coherent, and I believe reliable, of all the accounts I have. Here is part of it:-
    " We use an overhead ground control crane. The operator was Mario
    the other Storeman. Peter was on the truck at the back where he
    had his frame set up. I think there was a gate on the back of the
    trailer. I was on the floor directly behind the truck so that I
    could see if there was enough lean when the crate was put on the
    frame. Mario stayed on the floor and lowered the crate onto the
    frame. The frame was in about the middle of the tray and right at
    the back. Otherwise the tray was empty. The crate was put down
    on the left side of the frame poles when facing the same way as
    the truck. There was only a couple of inches between the end of
    the crate and the gate on the back of the trailer. It went down
    and the top of the crate leaned over against the poles. The poles
    were not quite upright, they leaned back a bit away from the
    crate. The crate was put down close to the post, that is why they
    have a bit of a lean on the post. I thought it had a good lean on
    it and Peter said it looked as if it was leaning his end. The
    crane had been brought down slowly and the crate leaned as the
    weight went off the slings. ....... Then the slings came down.
    Peter took the sling off his end and then walked along the crate
    to the back end. I think he climbed up on the gate a bit to get
    the second sling off. He did that and the crate started to drift
    over very slowly away from the poles. Peter tried to hold it up
    but he couldn't stop it. Not even seconds later he tried to get
    out from under the crate as it was falling. About all he had time
    for was to turn around and the crate hit him in the back and he
    went down and the crate fell onto his foot and half the bottom of
    his leg and trapped him lying over the side of the truck." 13. Both accounts beg the question of course, why the crate toppled. How could a crate which appeared stable, leaning against the frames, topple over? There is no direct evidence. I am left to draw inferences. 14. I am satisfied that when the plaintiff removed the slings from the crate it was safe for him to do so: the crate was leaning sufficiently to be stable. What could have happened? The crate could not have defied gravity. The only explanation is that in some way, unexplained, as Folino was backing the crane away the slings dragged or even merely brushed over the crate taking it sufficiently with them to disturb the lean. It was pulled upright and then to lean sufficiently the other way, to the west, to cause it to begin to topple. 15. That could only have happened through some error by Folino, such as pressing a wrong button on his hand control, or misapprehension as to where the plaintiff had thrown the slings when he detached them from the crate. Either way Folino was at fault, negligent - either in not operating the control properly or in not looking to make sure that as he moved the crane away the slings did not touch the crate. 16. Counsel for the defendants, Mr Geoffrey Muecke for the first and Mr Darrell Trim for the second, without acknowledging that the cause was as I have found, argued that the plaintiff was negligent in two respects. 17. The first was in not using the proffered props - if they had been used then the crate could not have fallen. 18. The plaintiff had loaded at Clarksons before, he thought half a dozen times: the number may have been less - it doesn't matter, even three times would have been enough for him to have been familiar with the system. He probably had been offered props, despite his denials. However props were not always used. I was particularly impressed by Mr Clayson. I accept his evidence entirely. He worked for Clarksons for 50 years, for the last 17 of which he was factory manager at Royal Park. He confirmed, incidentally the view which I had already formed (and still hold) that the plaintiff was in charge of the loading. Mr Clayson said:-
    " Q. We have been told that in the course of this loading
    procedure a Clarksons' crane operator and a Clarkson's rigger
    secured some slings to a crate of glass in the loading area of the
    premises at Royal Park and, using the crane, took it to the parked
    truck upon which the driver, Mr Zerk, fitted one side of the frame
    set-up. Mr Zerk has told us it was his responsibility to guide
    the crate to its final position and make sure it was stable. Do
    you agree with that.
    A. Generally it is the driver's responsibility to make sure of
    this, to position the crate of glass on the truck, the position
    where the crane driver had to locate it.
    Q. What Mr Zerk has told us is it was his responsibility to make
    sure it was stable, do you agree with that.
    A. Yes, that it is general.
    ...
    Q. The question I was asking you was could you explain to us in
    what circumstances it was appropriate to use props in this loading
    process.
    A. Yes, once the glass case or the case of glass has been lowered
    by the crane on to the base of the frame or the tray top, whatever
    it is, then you have to have some sling against the frame to stop
    it from coming over. Props would be offered to drivers to off-set
    that lean to make it safer. Some would not accept them. Some
    would. Some preferred to use ropes and others may prefer to use a
    wedge of timber underneath the case.
    Q. Props were offered, they were Clarkson's props.
    A. Yes.
    Q. You mentioned ropes and some drivers using ropes. Did
    Clarksons supply any ropes.
    A. No, not to my knowledge.
    HIS HONOUR: Q. Some drivers from your knowledge and experience
    used the props.
    A. Correct.
    Q. Others used ropes which they supplied themselves to secure the
    crates.
    A. yes. Q. And others used what, wedges.
    A. Wedges underneath the case.
    ...
    Q. In your experience did they use one or other of those three
    methods always.
    A. Unless the driver felt in his own mind that the case was quite
    safe prior to the loading of the next one nothing would be done.
    Q. If he felt quite safe.
    A. Yes.
    Q. Did you see that happen from time to time.
    A. On odd occasions. I can't tell you specifically, but I have
    seen it.
    Q. What percentage of occasions.
A. I would think it would be minimal." 19. I just do not believe that Mr Clayson would have allowed any of these work practices to continue unless he considered each of them safe. He is a man whose judgment I would trust. He told me that in the fourteen months to his retirement after the accident there had been no change in loading procedures - in itself a pretty good pointer that the procedures were considered safe. 20. The plaintiff was not negligent in not using props. He had satisfied himself that there was sufficient lean on the crate to make it stable. He was entitled to rely on that method, simply leaning the crate against the frames, as a safe one. He was not negligent in this regard. 21. The second respect in which, the defendants argued, the plaintiff was negligent, was that he should, when he saw the crate toppling, have immediately got out of the way: it was foolish of him to have tried to push back so heavy a load - there was no hope he could succeed: if he had moved smartly he could have been safe. Perhaps so - but I think this was very much an agony of the moment situation and the plaintiff should not be blamed for having done the wrong thing - the wrong thing, that is, as we may see it in safe and comfortable hindsight. 22. The plaintiff was not guilty of negligence. What then of the negligence of the defendants? There can be no doubt about that of the second defendant, by its servant Folino. It was negligent. 23. What about the first defendant? What about the system of work for the plaintiff? 24. The first defendant called no evidence. The plaintiff said he had not been instructed in how to set up the frames but he knew how to do that. (I should say that the plaintiff is a qualified mechanic and so setting up frames or using props with telescopic legs - Clarksons' props were said to have telescopic legs - should cause him no trouble.) He did not say that he had ever had or had not been instructed in how to load crates of glass at Clarksons or anywhere else. In the absence of any evidence I must assume he had not been instructed. Was the first defendant negligent in not devising a safe system of work for the plaintiff and in giving him no instruction? 25. I find it impossible to believe that it was. The plaintiff was a mature man: he was an experienced, skilful driver with 10 years general experience with his employer. He had done this same pick-up from Clarksons before. The system was safe: the only problem this time was Folino. How could his employer have guarded against that? I suppose he could have been told always to use props or ropes or wedges in case some nit-wit did the wrong thing but that seems to be going to entirely unreasonable lengths. The first defendant was not dealing with a kindergarten child. 26. I bear in mind what White J said in Jones v Santrans Pty Ltd and Shaw Pipe Protection Pty Ltd (56 SASR 103 at 111) that the plaintiff's employer "owed him a duty to care for his safety in the course of his employment ....... The duty was a continuing and non delegable one and still operating" even when he was at Clarksons. "As an employer of the plaintiff (the first defendant) had an over-riding responsibility to safeguard him against unreasonable risks, a responsibility which it could not delegate." I respectfully agree. The distinction between the situation which White J had to consider and this one is that here the risk was not unreasonable. 27. Mr Muecke reminded me of what Barwick CJ said in Maloney v Commissioner of Railways (18 ALR 147 at 148):-
    " ..... the respondent's duty was to take reasonable care for the
    safety of his passengers. It is easy to overlook the all
    important emphasis upon the word 'reasonable' in the statement of
    the duty. Perfection or the use of increased knowledge or
    experience embraced in hindsight after the event should form no
    part of the components of what is reasonable in all the
    circumstances. That matter must be judged in prospect and not in
    retrospect." 28. The first defendant was not in breach of its duty to the plaintiff. 29. It follows that sole responsibility for the accident rests with the second defendant. 30. The injuries which the plaintiff sustained were bad enough but worse, much worse, was to follow. 31. What happened is sufficiently summed up in a letter of 29 June 1987 by Mr Harold Schaeffer, the neurosurgeon:-
    " ..... he suffered severe leg injuries as a consequence of being
    struck by a crate of glass on 28 October 1986. .... he was
    subsequently admitted to the Queen Elizabeth Hospital and - there
    had apparently been operative treatment for his leg injuries on
    the same day and - a few days later he had undergone a skin graft
    procedure. .....following on the second operation, there were
    serious anaesthetic complications and he woke up severely
    hemiplegic. He also had a severe dyphasia. ...further
    complications occurred, ie, deep vein thrombosis and presumed
    pulmonary embolus. ..... he subsequently also developed
    seizures. I understood that he still takes Warfarin and remains
    on anti-convulsant medication." 32. It was, again to use Mr Schaeffer's words, "a catastrophic cerebral vascular accident and as a consequence of this he is now a permanent hemiplegic and he is also very dysphasic." 33. In the first operation on the day of the accident a pin was inserted in the plaintiff's right tibia. The opinion of Dr D J Schoemann, his general medical practitioner, is that "at some stage he might require (its) removal." 34. There is some scarring from the operation which I noted as follows:- " The outer aspect of the left leg noticeably indented and reddish discolouration from two to three inches below the knee, certainly to the sock line of the ankle. ......... The whole leg appears to be bowed slightly outwards and there is indentation horizontally, in a horizontal line just above the ankle." (Although the left leg is noted, the scarring is on the right leg.) 35. The plaintiff gave evidence. It was obviously very difficult for him (as it was for us in Court to hear and understand him). He spoke softly, had difficulty in finding the right words. 36. To make matters worse for him sometime after this happened his wife walked out on him for another man. He has lived on his own for six and a quarter years and with some outside help looks after himself. I admire his fortitude. In the last couple of years he had finished fitting out a boat which he can sail, with the help of crew, in Boston Bay. He can drive a car but said he would not drive in Adelaide. He will never work again. He is accident prone and has had several falls which have caused significant injury. The right arm is hard to use at all: the left arm is weak and he can't lift heavy things. 37. Mr Schaeffer in the same report says:- " ...There are significant defects of comprehension. ...... Residual disability ...will clearly be extremely severe." 38. The plaintiff has not had or needed active treatment for several years. 39. There is no dispute between the parties about the plaintiff's injuries and his present condition. The only dispute is as to what caused him to have the stroke, whether, in any case, at some time, irrespective of the accident, he would have had it. 40. There is some history of heart disease in the family and that is a factor I bear in mind. 41. The plaintiff himself seems to have had good health until 1985 when he had a heart attack. The attack was not particularly serious. A few months after the attack Dr William Heddle, the physician, wrote to Mr Rufus McLeay, the surgeon at Pt Lincoln:-

    " Many thanks for asking me to see this 42 year old transport
    driver who recently (on 6/1/85) suffered an inferior myocardial
    infarction complicated by cardiac arrest on presentation. He has
    no major risk factors for coronary artery disease...... ..He has
    no proximal coronary artery lesions, and thus appears to be at low
    risk for further coronary events. There appears to be no strong
    contraindication to him resuming his former occupation." 42. Mr Schaeffer expresses his opinion in a report of 17 April 1989:-
    " He continues to present as a man who has suffered a severe
    'stroke'. His disabilities are in the nature of a severe disorder
    of speech and comprehension and weakness and inco-ordination of
    his right limbs and reading and writing difficulties. ....... To
    summarise the situation I am of the belief that the work injury of
    the 28th October 1986 did not actually cause the stroke but that
    it precipitated a train of events which indirectly culminated in
    his suffering a severe stroke. I believe that another way of
    looking at the situation is that the consequences of the subject
    incident had the effect of hastening the onset of this man's
    stroke possibly by a year or two, but it is very difficult to be
    dogmatic in respect of the time factor." 43. During his evidence I asked Mr Schaeffer:-
    " Q. What is perplexing me about your opinion, is that it seems
    to me that anybody who has got this vascular disease undiagnosed
    is at risk when having an anaesthetic.
    A. I'm looking at the opposite way round, perhaps is the best way
    of describing my opinion, the question of hindsight. I think the
    basis of my opinion is that I cannot recall seeing somebody with a
    normal vascular system waking up from an anaesthetic with a
    stroke.
    Q. Therefore, this man couldn't have had a normal vascular
    system.
    A. That is exactly so. Therefore, almost by definition, I feel
    that this man must have had some vascular diseased, perhaps in his
    carotid artery, perhaps somewhere in the heart or near the carotid
    artery, in which perhaps a little embolus has floated off and
    ended up in a small cerebral artery, and that has caused the
    stroke.
    ...
    Q. Accepting your explanation of what happened, if he hadn't had
    the anaesthetic then at some time later the same thing might have
    happened, that's what I picked up from your reports, that this
    merely hastened what would have happened later, is that what you
    say.
    A. I think what I'm trying to say is that I believe that he was
    at risk of something similar happening.
    Q. It may never have happened.
    A. I suppose that it may never have happened, but I think on the
    balance of probabilities something would have happened, say,
    within about a few years, but I can't be dogmatic about that, I'm
    only speaking in very general terms, and if I would have felt that
    somebody - like an actuary - was going into the risks of death and
    further disease following on events of this nature I would
    probably have been hesitant to give them a life insurance policy." 44. I think I correctly sum up Mr Schaeffer's opinion: that the plaintiff had this stroke shews that he had a vulnerable vascular system; the anaesthetic merely precipitated the stroke which may have happened anyway sooner or later. 45. The contrary opinion was expressed by Mr McLeay. In his letter of 29 January 1992 to the plaintiff's solicitor he wrote:
    " From my records I have no reason to believe that Peter Zerk was
    suffering from generalised vascular disease at the time of his
    myocardial infarction or subsequently. There is no doubt that
    quite extensive vascular disease in the form of atheroma can be
    present without many clinical signs being evident. I have perused
    the notes of the Queen Elizabeth Hospital file page by page and
    although I have found two references to a cerebral angiogram
    performed after his stroke, I have been unable to locate the
    official report thereof. References made in Dr. Rice's letter to
    Ward Nolan and Co. dated 27th October 1987 and a discharge
    summary from the Queen Elizabeth Hospital describe a 'normal
    carotid angiogram' on the affected side. This is prima facie
    evidence that Mr. Zerk is not suffering from generalised vascular
    disease, moreover it is direct evidence that he was not suffering
    from even regionally advanced cerebrovascular disease at the time
    of his stroke.
    The report from Dr. Heddle cardiologist) to myself also
    reiterated that Peter Zerk's coronary arteries were 'essentially
    normal'. The immediate cardiac prognosis based on this
    information was excellent. Despite his family history of
    premature vascular disease, there were no other outstanding risk
    factors active between Peter's myocardial infarction and stroke.
    The proximity in time between the cerebrovascular accident and
    anaesthetic, coupled with the otherwise normal vascular studies
    performed at that time and previously, indicate that it was very
    unlikely for Mr. Zerk to have suffered this catastrophe had the
    injury not occurred." 46. Mr McLeay gave evidence. I set out extracts from both his examination-in-chief and his cross-examination:-
    "Examination-in-chief:
    Q. Were you asked to express an opinion as to whether there was
    any cause or connection between the accident he had on 28 October
    1986 and the subsequent stroke.
    A. Yes.
    Q. What is your opinion as to that.
    A. My opinion in the context of the accident and this man's
    previous investigations and his subsequent normal carotid
    angiogram is that the only reasonable conclusion is that the
    stroke was suffered as a result of the trauma or the events
    following the trauma.
    Q. As you understood his condition, was there any reason for him
    suffering a stroke in October or early November 1986 if it had
    not been for the accident and subsequent operations and
    anaesthetics.
    A. I think this man must have been at an incredibly low risk for
    having a stroke in the normal course of events. " 47. Cross-examination by Mr Muecke:
    " Q. Would you concede that he does have - a vulnerable
    (vascular) system, in view of not only the heart attack that he
    suffered, and not only the family history, but of the fact that he
    has suffered, undeniably, a stroke at age early forties.
    A. No, I don't think so. I think it is impossible to deny that
    family history as a risk factor for coronary artery disease or for
    stroke, but I think the mechanism for him having a stroke is in
    some contention. I agree that with that family history that one
    cannot say that he has a normal low risk, the lowest risk
    possible. When apportioning risk one has to take into account a
    variety of risk factors, and the more risk factors the higher the
    risk. With only one risk factor the increase in his absolute risk
    of suffering either further heart disease or cerebrovascular
    disease is low.
    Q. But given that history and his family history before him, the
    possibilities that you have postulated as to the cause for this
    stroke become rather ill-defined, don't they,as to which you can
    point to.
    A. Probability, as such, is always ill-defined. I mean, a
    probability is not certainty, it's probability. I think in the
    actual clinical context of the occurrence of a stroke at the time
    it would be quite unreasonable to say that he had generalised
    vascular disease, when the carotid angiogram was normal.
    Q. What about vulnerable vascular system, would you accept that.
    A. Yes.
    Q. We will hear evidence from Mr Schaeffer in this case that his
    view was that even without this particular accident, the chances
    were that Mr Zerk would suffer some sort of vascular attack in
    future years, and even within a year or two of when he did suffer
    one.
    A. I think that's quite reasonable.
    Q. Would you accept that certainly there was a possibility that
    he would suffer an attack, in any event, with this history.
    A. There is a possibility, yes, a small possibility." 48. I have to decide whether or not the plaintiff was at risk, anyway, of a stroke. Eventually, I have come to the conclusion that I prefer the opinion of Mr McLeay. It just seems to me that with respect to him, Mr Schaeffer's view, simple though it is, is theoretical. On the other hand Mr McLeay's rests on a more practical base - information in the report of Dr Heddle, Dr Rice's letter and the discharge summary from the Queen Elizabeth Hospital as well as his own observations of the plaintiff. 49. Mr McLeay's view is more convincing than Mr Schaeffer's. While not free from doubt I find on the balance of probabilities that the anaesthetic during the second operation led to the stroke and that but for the anaesthetic the plaintiff may never have had such a stroke. (I may say that on reflection I see Mr Schaeffer's and Mr McLeay's final opinions as being not too far apart. To my question Mr Schaeffer said, "I suppose that it may never have happened ....." In cross-examination Mr Mcleay said, "There is a possibility, yes, a small possibility." My acceptance of Mr McLeay's view and rejection of Mr Schaeffer's may not, as I must allow for contingencies, mean much difference in the final assessment of damages.) 50. It follows that the second defendant is not only wholly responsible for the plaintiff's present condition but for the plaintiff's condition for the rest of his life. 51. I come now to assess damages. The plaintiff is now nearly 50 years old. He was nearly 43 when the accident happened. His life has been ruined: he has also had to put up with the injuries, their treatment and their aftermath. He has been left with some scarring but not serious in a man of his age. Although Mr Schaeffer thought, because of the condition of his vascular system, life expectancy would be shorter, neither Mr McLeay nor Dr Schoemann expressed such an opinion. I shall assume therefore normal life expectancy, into his seventies. 52. The accident was before the enactment of s35a of the Wrongs Act, so damages for pain and suffering are at large. I assess damages for past pain and suffering and loss of the amenities of life at $30 000: for the future I allow $75 000. 53. The plaintiff was in a steady job and was experienced and competent. The evidence was that drivers retire as a rule at 60 but may go on longer. I can see no reason why this man would have retired before 60: indeed I think he easily could have gone on working until he was getting on for 65. 54. Mr Evans gave me a document setting out calculations of pre-trial loss of income. Counsel for the defendants agreed with the figures but not, of course, with liability to pay the amounts. The document shews a net loss of income of $134 270 to which should be added the gross payments of worker's compensation, $47 750, a total of $182 020. That is before allowing for contingencies which I must do. I allow $150 000 for past loss of earning capacity. As for the future I have another document from Mr Evans calculating his notional net earnings now, as a projection of earnings at accident, to be $553.67 per week. Mr Muecke, on behalf of both defendants, attacked the figure as being too high. I think it may be on the high side. It is only a starting point anyway. 55. I also have an actuary's certificate shewing:- The values s on the 18th May 1993 of $1.00 per week to be paid from 18th May 1993 are to be: 3% Discontinued at age 60 or prior death is : $ 452 Discontinued at age 65 or prior death is : $ 605 Taking the rate at 3% and taking into account all other factors, I allow $220 000 for future loss of earning capacity. 56. I make no award for gratuitous services. Even when his wife was still with him the plaintiff seems to have been quite independent. 57. That leaves only future medical expenses. There is the fifty/fifty chance of an operation to remove the pin in the leg. I was given no definite figures of the cost so I must make the best estimate I can. It is $2 000. There is no evidence that I should allow anything else for future medical expenses. 58. Special damages already paid by or on behalf of the first defendant are $52 568.71. 59. I am now able to tabulate damages: Pain and suffering - past 30 000.00 future 75 000.00 Loss of earning capacity past 150 000.00 future 220 000.00 Future medical expenses 2 000.00 Special damages 52 568.71 Total $529 568.71 Finally there is interest. I have not had to calculate interest in a case such as this for some time and am uncertain how to go about it. Unfortunately I did not invite counsel to address me on the topic. I shall calculate interest on past non-economic loss (following M.B.P. (SA) Proprietary Limited v Gogic (171 CLR 657) at the rate of 4% and on economic loss at 3%, from the date of the summons, October 1989, to now - about three years and eight months - but round off the figure. 60. Subject to the submissions of counsel I allow $20 000 for interest. 61. That would make a grand total of $549 568.71. I shall hear counsel as to interest and, as agreed during addresses, as to the precise orders I should make.