Pilkington v Jamal No. DCCIV-00-1560

PILKINGTON v JAMAL
[2003] SADC 98
Judge Lunn
Civil

The plaintiff claims damages for injuries received in a motor vehicle accident on 9 June 1995 (“the 95 accident”). At the commencement of the trial the defendant’s counsel admitted liability. Hence the trial before me has proceeded only as an assessment of damages.
The plaintiff commenced his action in the Magistrates Court on 28 May 1998. In late 2000 the action was transferred into this Court. The only pleadings are those which were filed in the Magistrates Court. They are out of date and virtually useless. The parties did not fulfil their obligations under Rule 2.05 at the time of seeking to refer the action for trial to ensure that the pleadings were adequate. The pleadings, such as they are, gave me no indication of the issues which would be dealt with at the trial. It is a moot point, which I need not determine, whether the pleadings are governed by Rule 24 of the Magistrates Court (Civil) Rules 1992 or Rules 46 or 46A of the District Court Rules. If it was Rule 24 of the Magistrates Court Rules it was at a time when they required the pleadings to conform with the Supreme Court Rules. By Rule 74A.07(2)(b) the copy documents lodged by the plaintiff should have included the Rule 46.15 Particulars, or their equivalent, under the applicable Rules, but they did not. The intent of Rule 46.04(h), and its equivalents, is that the Rule 46.15 Particulars will supplement the pleading of issues relating to damages in personal injury claims, and to that extent they serve as quasi pleadings. At the commencement of the trial I told the plaintiff’s counsel that I did not have the Rule 46.15 Particulars in my copy documents. He apologised on behalf of the plaintiff for the omission. However, the document was never supplied and I have no knowledge of what it might contain. The real issues in the action about what were the plaintiff’s injuries and disabilities resulting from the 95 accident may well have been better addressed at the trial if they had been properly identified in advance by adequate pleadings.
In about 1980 the plaintiff commenced a business of the wholesale sale and delivery of motor vehicle radiator coolant and automotive products to service stations, automotive workshops, crash repairers and the like throughout South Australia and western Victoria. His wife did much of the book work. He would visit his customers in a van in which he had stocks of the products he was selling and deliver them to the customer at the time of sale. He would visit his customers regularly and over time he built up a good rapport with them.
The plaintiff has been a good and effective salesman and was able to establish a viable business. During the 1980s the business expanded and the plaintiff came to employ several more salesmen who used other vans to visit customers. Much of the business was in the country areas of this State and in western Victoria which required trips of up to a week with overnight stays. They had to call on twenty to twenty five customers per day and travel long distances. A general routine evolved whereby the plaintiff and each of the other salesmen would spend one week away from home on a country trip and then the following week doing day trips in the city and to near country customers. As far as possible the plaintiff and the various salesmen each had their own groups of customers who they regularly visited.
The business was conducted from premises which served as an office and a warehouse. A storeman was employed for the warehouse. Various office staff were employed from time to time to assist the plaintiff’s wife with the book work of the business. Since 1993 the business premises have been at Salisbury South.
In 1983 the plaintiff commenced to carry on the business through a company in which he and his wife were the only directors and in which they each held one share. In 1989 this company changed its name to Trizone Pty Ltd, and I will refer to it as “Trizone”. Up until the end of 1996 the plaintiff and his wife were paid equal amounts of wages by Trizone which were fixed primarily by what the business could then afford to pay them. In 1996 the plaintiff changed accountants and entered into a taxation minimisation scheme to run the business through a trust. The Trizone SA Trust (“the Trust”) was a discretionary family trust which took over the running of the business as from the beginning of January 1997. The Trust, and not Trizone, then employed the plaintiff and all of the other staff in the business. The trustee of the Trust was a company, which had previously been known as Trizone Queensland Pty Ltd, but which at the commencement of the Trust changed its name to Trizone Australia Pty Ltd. The plaintiff became the sole director and shareholder of this company. In late 1998 it changed its name to Dacabrats Pty Ltd and the Trust changed its name to “the Rivington Trust”. After 1 July 2001 the Trust carried on the business under the business name of “Coolchem SA”. More recently Dacabrats Pty Ltd changed its name to Coolchem Pty Ltd.
The plaintiff was born in 1952 and was 51 years of age at the time of trial. He left high school without having completed fourth year. However, he became a successful salesman. He married in 1974 and he and his wife have six children who were born between 1975 and 1990. From soon after his marriage his general practitioner has always been Dr Graham of Gawler.
In 1974 the plaintiff hurt his lower back while lifting a scooter off a truck. It was painful for a few days, but he did not seek any medical treatment.
In 1978 the plaintiff was involved in a major vehicular head-on collision in the country. He was on a business trip at the time and the back of his stationwagon was loaded with business stock. As a result of the impact that stock slid forward into the back of his driver’s seat. He suffered low back pain for some time. He consulted Dr Graham and had physiotherapy.
Between the 1978 accident and the 95 accident the plaintiff had some occasional pain and discomfort in his lower back apparently as a result of the 1978 accident. He complained to Dr Graham about it on three occasions in 1978, 1979 and 1994. In 1991 Dr Graham informed an insurance company that the plaintiff had a low back strain which was occasionally troublesome. Dr Graham did not regard the complaints of low back pain between 1978 and 1994 as significant and he did not then examine the area or treat the plaintiff for it.
Between about October 1991 and March 1995 the plaintiff visited Dr Human, a chiropractor, on nineteen occasions. He also had visited two other chiropractors on one or two earlier occasions, but he could not remember any details about those visits. Of the nineteen visits to Dr Human ten were within a two month period in late 1993, and the last was in March 1995. The plaintiff said that he had visited Dr Human for a number of complaints including some lower back problems. He could not now remember precisely what back problems he had at those times and on how many occasions he had had treatment from Dr Human for them. No evidence was adduced from Dr Human. Lower back problems were not the primary reason for the plaintiff consulting Dr Human, but Dr Human did treat him on some occasions between 1991 and 1995 for low back complaints.
On 9 June 1995 the van which the plaintiff was driving was hit from behind while it was stationary by a car driven by the defendant. The impact was sufficiently severe to squash in the back of the van by eight inches and to buckle the metal runner under the driver’s seat. The plaintiff hit his head on the sunvisor and his left knee on the steering column. He was wearing a seatbelt at the time and his body was jarred by the impact. Immediately after the accident he felt stiff and sore in his neck and the whole of his back.
The plaintiff saw Dr Graham on the day after the accident when he was complaining of stiffness and soreness from his neck to his lower back. Dr Graham prescribed Panadeine Forte as a painkiller and advised him to keep mobile. He did not take any time off from work, but at that time he was not doing any regular country trips. The pain in his knee, neck and head largely resolved within about a month. However, the pain in his lower back to both sides just under the belt line, but predominantly on the left side, continued. He had episodes of numbness and pins and needles in his upper legs. He consulted Dr Graham on six occasions between 24 July and 30 December 1995 with various complaints relating to the 9 June accident including pain in his lower back, pelvis and right sacro-iliac joint. Up until the end of 1995 Dr Graham was continuing to prescribe him Panadeine Forte as a painkiller. He had not had any physiotherapy treatment up to this time.
On 23 November 1995 the plaintiff first saw the orthopaedic surgeon, Mr Sweeney, at the instigation of his solicitors. Mr Sweeney then diagnosed an aggravation of pre-existing lumbar disc degeneration but found the condition was not then stable.
In about mid 1994 an additional salesman, Graham Todd, had been employed by the Trust who took over the country trips to the southeast and western Victoria, and some other city sales work, which had previously been done by the plaintiff. At about the beginning of 1995 the plaintiff with others had through a company, Trizone Queensland Pty Ltd, attempted to set up a similar business in Queensland. It did not succeed and by mid 1995 the plaintiff was no longer involved in it. In the first half of 1995 this Queensland venture had taken up a significant part of his time.
In October 1995 Todd resigned and the plaintiff considered that the business could not then afford to replace him. Accordingly, the plaintiff resumed the regular sales trips which Todd had been performing. Although he was still having some pain and discomfort in his lower back and hips, he thought he could cope with this work. However, the constant sitting in the van which was required for the longer trips, and the lifting and delivery of the stock over a period of time, caused soreness and tightness in his lower back and hips. He got some relief from hot showers. On occasions after long periods of driving his walking was restricted and he could not carry and lift stock. His work performance and its profitability suffered because of these symptoms.
On 10 April 1996 the plaintiff was seen for a second time by Mr Sweeney. He told Mr Sweeney that the country trips did not upset his back, but lifting twenty boxes of 20kg tins of coolant did so. Mr Sweeney’s examination showed that the plaintiff walked well and had a mobile cervical spine. He reported that the plaintiff’s condition was stable and that he had been “left with a mild disability due to discomfort in his back due to a ligamentous injury which has aggravated pre-existing disc degeneration in his back”. On 29 July 1996 the plaintiff saw Dr Graham for the first time since the end of 1995. He found the back to be stable but noted a tender spot near the left hip. Thereafter the plaintiff did not again see Dr Graham about his back, or seek any medical or like treatment for it, until December 1997. Insofar as his back condition was preventing him from carrying out his regular sales trips in 1996 and early 1997 he made no contemporaneous complaint about it to any doctor and did not seek any treatment for it.
As from 8 March 1997 Michael Badovski was employed by the Trust to perform the sales trips which the plaintiff had been doing. The plaintiff then restricted himself to light duties in the business including some deliveries of goods to city customers, tidying up in the warehouse, liaising with suppliers and customers and the like. It included some office and computer work, although he found it uncomfortable to sit for any length of time. He was then more available in the office for general managerial functions which he previously had performed after hours when he had been conducting regular sales trips. Even when he was on these light duties he estimated half of his time was still taken up in sales and he continued to deal with some of his “pet” customers.
In about August 1997 the plaintiff commenced a venture through Coolchem Pty Ltd, which was a different company from Dacabrats Pty Ltd which later changed its name to Coolchem Pty Ltd, to establish a similar business in New South Wales. Between about September and December 1997 he made about eight trips of about three to five days duration to Sydney to assist in setting up this venture and to train salesmen. The Trust received $13,500 from other parties interested in the venture in New South Wales for management services provided by the plaintiff at this time. However, the Trust also incurred some unquantified expenses which it has not recouped. The plaintiff hoped that if this venture was successful he may have been able to diversify his activities in the future to organising such businesses elsewhere and training salesmen for them which would not have involved the physical activity which had been causing his lower back problems since the 95 accident. However, the New South Wales venture was not successful and trading stopped in March 1998. The company, Coolchem Pty Ltd, was later wound up as it was insolvent. The plaintiff had made further trips to New South Wales in January and March 1998.
On 21 October 1997 the plaintiff told Dr Graham, apparently in a consultation primarily for other purposes, that his back was unchanged and that it tightened. On 22 December 1997 he again saw Dr Graham about an exacerbation of his back condition apparently from doing additional work and deliveries. This exacerbation was unrelated to any regular sales trips as they were then being done by Badovski. He did not again consult Dr Graham until March 1999.
Badovski ceased to be employed on 31 January 1998. The plaintiff then took over his sales trips as he believed his back had improved sufficiently for him to cope with such work. Badovski’s sales had not been good and he had lost some customers. The plaintiff wanted to re-establish, and improve, the business in the areas which Badovski had been servicing. However, again the long periods of driving and other duties involved in the sales work worsened the symptoms in the plaintiff’s lower back and hips. On 8 August 1998 his son, Craig Pilkington, was employed by the Trust to conduct the sales trips which the plaintiff had been doing. The plaintiff apparently neither made any complaint to a doctor nor sought any treatment for his back problems which he said led to the need to employ his son Craig to do these sales trips.
Craig Pilkington did not like the work and gave it up on 31 January 1999. The plaintiff, who had been on light duties similar to those he had done while Badovski was employed, by then felt sufficiently recovered to resume the regular sales trips. On 20 March 1999 the plaintiff complained to Dr Graham that his back was still painful particularly when sitting. Examination showed a full range of movement but the spine was tender from T6 to S1. On 13 April 1999 he again saw Mr Sweeney. He complained of a sore back and problems in sitting, but Mr Sweeney reported him as saying:
“His back is reasonably comfortable even with a long trip in the car.”
Examination showed discomfort in the left lower back in flexion. He said he was managing his work provided he did not have to do too much lifting. On 1 July 1999 he saw Mr Fraser, an orthopaedic surgeon retained by the defendant. He complained of central low back discomfort to the left of the mid line which was constant at a low level, but aggravated by various activities including driving for long periods. Thereafter he did not see any doctors or undergo any treatment for some time. Again his back condition progressively regressed until by August 1999 he was sufficiently incapacitated by his lower back problems not to be able to do his work properly.
On 30 August 1999 Chris Tippett was employed by the Trust to perform the sales trips which the plaintiff had been doing. The plaintiff went back to the light duties similar to those which he had performed earlier after giving up the sales trips. In about October 1999 the plaintiff organised the purchase of another business “Snowy’s Auto and Trailer Parts” (“Snowys”). It had been a competitor and he gradually merged its activities into the business of the Trust. He did this while he was on “light duties” after Tippett had been employed. In November 1999 the Trust employed another person in the office to handle the business of Snowys.
On 7 February 2000 Chris Tippett was seriously injured in a motor vehicle accident. Initially it was hoped that he would return to his job after a period of convalescence, but he never did. The plaintiff took over the sales trips which Tippett had been doing. Again he hoped that he would then be able to cope, but the same pattern was followed and his back condition worsened until he was unable to function properly.
On 7 August 2000 Alan Ramsay was employed to do the sales trips and the plaintiff went back to light duties in a similar fashion to what had occurred after he had previously had to give up the sales trips. It was only after Ramsay was employed that the plaintiff next sought any medical assistance. On 27 September 2000 he complained to Dr Graham about back pain and he was referred to a physiotherapist, Mr Pfitzner, for treatment. (There is no direct evidence that he had had any other physiotherapy treatment since the accident, but there are some indirect references suggesting a possibility of it.) Between 4 October and 27 November 2000 he had eleven sessions of physiotherapy treatment. However, after that was completed he did not again have any treatment for his back until October 2002.
On 15 November 2001 the plaintiff was examined for a second time by Mr Fraser. He complained to him of persistent low back ache and said that he had modified his work activities to minimise his symptoms. He said he had to employ someone to do most of his deliveries because of his low back condition. He stated that he was taking very occasional analgesics. On 20 December 2001 the plaintiff was examined by Mr Sweeney for the last time. He complained of difficulties in lifting 20kg packs of coolant, but said he could manage if there was only light lifting. He said he could do some deliveries, but not for substantial periods. On examination he was found to be tender over both sacro-iliac joints and his hips.
On 24 December 2001 Ramsay was dismissed for embezzlement. The plaintiff again took over most of his sales trips, but some country areas went to other salesmen. The Trust could not afford at that time to employ a replacement for Ramsay and the plaintiff needed to build up the sales again in the areas in which Ramsay had been working.
On 19 August 2002 this action came on for trial before another Judge. It was adjourned because of inadequate discovery of documents by the plaintiff. The defendant’s counsel also raised before that Judge an alleged failure of the plaintiff to comply with Rule 38.01 about some of the proposed evidence of Mr Sweeney. This will be referred to later.
By September 2002 the plaintiff’s back condition had again deteriorated to an extent where he could not continue with his sales trips. After another person had been employed for a couple of weeks but then left, Rod Dean was employed as from 20 September 2002 to do these sales trips. He was still doing them at the time of the trial in July 2003.
On 2 October 2002, apparently without first consulting any doctor about it, the plaintiff embarked on a course of twelve sessions of physiotherapy on his lower back with Mr Pfitzner which lasted until 5 December 2002. On 6 November 2002 he was examined for the only time by Associate Professor Bauze, another orthopaedic surgeon retained by the defendant. He complained to him of soreness in his low back and in both sacro-iliac joint regions. On examination Professor Bauze found dumbbell lipomata near the sacro-iliac joint regions with the lump on the right side being bigger than the one on the left. He raised the possibility of injections of local anaesthetic into these lipomata.

On 28 November 2002 the plaintiff saw Dr Graham for the first time about his lower back in just over two years. He complained that work on the road exacerbated the pain but said he could get comfortable if he avoided certain activities. He again saw Dr Graham on 5 December 2002 making similar complaints. On 9 December Dr Graham injected local anaesthetic into what he called irritable bursae which he said were the dumbbell lipomata referred to by Professor Bauze. On 13 December Dr Graham wrote a medical report for the purposes of this action, but it did not refer to the injections given on 5 December. On 17 December Dr Graham repeated the injections. On 31 December 2002 he saw the plaintiff again who said he was more comfortable after the injections although he was still complaining of some stiffness and soreness. There were no further injections but the plaintiff was referred for more physiotherapy. He had one further session of physiotherapy on 27 February 2003. He has not seen either Dr Graham or a physiotherapist since that time.
The plaintiff described the effect of the injections as follows:
“The benefit was to take it from an extremely painful situation where I couldn’t function to the current situation, the ambience of it being sore. It doesn’t fix the problem. ……. It allowed ……. for the muscles to relax, back off, and allowed me to live a relatively normal life, albeit the soreness that continues on. ……”
The plaintiff now believes that he cannot ever successfully go back to conducting regular sales trips because they will aggravate his lower back condition. He says that if the trips could be more leisurely he might be able to cope, but then they would not be profitable. He said in evidence that but for the accident he had intended to work as a salesman on the road until aged 65 years and possibly afterwards, but he had instructed the accountant, Mr Jay, who prepared the financial report for this matter, that his intention could have been to retire as early as aged 60 years. He regarded his prime talents as being those of a salesman rather than of a manager. He enjoyed the work and it is likely that subject to any low back problems he would have continued making substantial sales trips for a long time.
In about mid 2002 the plaintiff’s wife developed a serious medical condition of fibromyalgia which has meant that she has been unable since to work in the business. However, her illness would not have precluded the plaintiff from undertaking country trips if he had otherwise been fit to do so.
The plaintiff has continued to take some analgesics and to keep active. He has never lost any significant time from work because of his disability. It has merely restricted the type of activities which he could do. On occasions he has had physiotherapy when his back has been extremely stiff and locked up, but he has found that too much physiotherapy has aggravated the condition. He has had problems in sitting in some types of seats, and for any length of time. He is restricted in the distance which he can walk. He can lift weights if his back is not too bad, and it is not too frequent.
The plaintiff was a reasonably frank, candid, articulate and impressive witness. He conceded he did not have a good memory for dates. He had to give evidence of complex business transactions and numerous fluctuations in his health over a long period of time. Of necessity much of what he said was generalisations. The defendant’s counsel criticised his evidence because he had omitted speaking of some relevant matters until they were raised in cross examination. While that showed that he was not a perfect historian it did not undermine my confidence in the general thrust of his evidence about the effects of the accident. I am generally prepared to accept his evidence, but subject to any contrary contemporaneous documentation.
There was considerable divergence among the opinions of the medical experts.
Mr Fraser diagnosed a “mechanical low back pain secondary to early multiple level degenerative disc disease of the lumbar spine”, which condition had been permanently aggravated by the 95 accident. He considered that the plaintiff’s low back symptoms were multi-factorial in aetiology of which the motor vehicle accident was only one. He believed the plaintiff would have experienced some degree of low back problems from time to time in any event. He said:
“The motor vehicle accident may have precipitated the onset of more significant symptoms by a period of time. That period of time cannot be estimated scientifically or accurately but, in my opinion, on a balance of probabilities it is less than five years.”
He did not refer to any lipomata or irritable bursae.
Mr Fraser was unable to give evidence at the trial because of a serious illness. His two reports were tendered under s34c of the Evidence Act. Under s34d of that Act I must have regard to the fact that he has not been cross examined on his conclusions in assessing what weight can be given to them. However, under s34d there is no basis to infer that he did not accurately report what the plaintiff told him and there was no suggestion that he had any incentive to conceal or misrepresent facts. Mr Sweeney and Professor Bauze both concurred with his conclusions to a significant degree.
Mr Sweeney concluded that the accident had caused a ligamentous injury to the plaintiff’s lower cervical spine which had aggravated pre-existing disc degeneration in the spine. He disagreed with Professor Bauze that the plaintiff’s pain in the hip regions was caused by dumbbell lipomata. He considered any pain in that region was referred pain from the spinal injury. In his final report he said:
“I have read Mr Fraser’s report and I think where I would disagree with the report is the effect on his work delivering coolant full time. I think the essential part of his disability is whether he has to employ somebody full time so that they can make a profit in the business.”
(This passage has been amended to correct grammatical errors and omissions which appeared in the original report.)
Dr Graham rejected that the plaintiff’s symptoms emanated from any spinal injury or an aggravation of it and said that they were due to irritable bursae overlying the posterior superior iliac spine and an enthesopathy relating to the ligament attaching to the pelvis bone which he described in lay terms as a “tennis elbow of the back”. In his second report he stated that his diagnosis of enthesopathy was like the view of Mr Sweeney. Nothing about enthesopathy was put to Mr Sweeney, and there was no attempt to put it to him. I do not accept that this diagnosis is consistent with that of Mr Sweeney.
Professor Bauze said he to some degree supported Dr Fraser’s opinion stated above and considered that if there had been any aggravation caused at the time of the 95 accident “this would have been submerged by progressive degeneration of the lumbar spine within a couple of years”, ie his condition over the last few years before 2002 was related to his underlying degeneration and not to any aggravation caused by the 95 accident. However, he strongly suspected that the current plaintiff’s complaints were coming from the dumbbell lipomata. He said in his report:
“The diagnosis (of lipomata) would be confirmed by the injection of local anaesthetic into the painful fat, and in particular the hiatus in the deep fascia through which it protrudes. A positive response would then lead to excision and potential cure. A negative response would lead to further investigations of lumbar spine and sacro-iliac joints with plain films and MRI/CT scans. In my opinion none of these investigations and management would be a result of the accident seven and a half years a go.”
He said that the dumbbell lipomata were a separate and unrelated condition to the degeneration of the lumbar spine. He rejected Dr Graham’s diagnosis of enthesopathy.
Both Professor Bauze and Mr Fraser acted upon instructions they had received that the chiropractic treatment which the plaintiff had undergone between 1991 and 1995 was for lower back problems. This was an over-statement as it was only partly for those problems. However, on the other evidence I am satisfied that before the 1995 accident the plaintiff had a low back strain which was occasionally troublesome. This was confirmed by the degeneration revealed by the MRI scan taken in late 1995. This partly incorrect assumption by Professor Bauze and Mr Fraser does not significantly affect the validity of their conclusions about the accident having aggravated the plaintiff’s already degenerating spine.
Rule 38.01 provides:
“(3) A party shall obtain all expert’s reports which the party wishes to obtain for the purposes of the action and (deliver copies to the other parties) in respect of all such reports no later than 21 days before the date fixed by the Court or by the Rules for the first hearing of any application to refer the action for trial.
…….
(7) Other than with the leave of the Court, no party is to adduce expert evidence at a trial unless
………
(iii)the following matters are set out in the report or reports delivered.
………
(a)the substance of that expert’s evidence;
(b)the qualifications of the expert.
……….”
When the plaintiff’s counsel called Mr Sweeney he sought leave to adduce evidence-in-chief of matters not contained in his reports being additional expert qualifications, his assessment of the percentage of the plaintiff’s disability and his opinion on the period which the aggravation of the spinal injury would have lasted. I refused such leave and indicated I would give my reasons for that ruling as part of this judgment. (The argument also extended to whether leave should be given under Rule 31.01A(5) for supplementary evidence-in-chief to be adduced by an expert. As there is some doubt whether that rule applied in this case I need not deal with the point.)
At the outset of the trial on 19 August 2002 the transcript, which was not challenged, records the defendant’s counsel as saying:
“There is a second limb which really would arise ……… that relates to the medical evidence. ……. I have been advised by my friend’s instructing solicitor that the plaintiff’s medical witness has now, what I would call, changed his mind from the report that was before the parties. In simple terms, he had previously advised that but for one area, he agrees with the defendant’s medical witness. I was advised on Friday that he does not now agree with the defendant’s medical witness on a very very significant point and it’s the basis of the pleading whether this is an aggravation or not. …….. I understand that Dr Sweeney will not now say what he had previously said in his medical report of January 2002. That is a secondary element. That one is obviously more serious and perhaps would have been fleshed out in due course but at this stage the discovery and production at one is the one where I flag immediately, we are prejudiced in the presentation of our trial.”
The plaintiff’s then counsel is recorded as saying in response, inter alia:
“…….. I acknowledge the problem. ……. I would probably characterise it a little differently. If Dr Sweeney has changed his view on his written reports and is going to give evidence along the lines of that changed view, then it would seem to me that the plaintiff is probably in breach of the provisions of Rule 38 in that no adequate notice has been given to the other side of that changed view, if the changed view was conveyed to Mr James on Friday. ……. So I think there is a difficulty there. Whether that’s a difficulty that was apparent early on because its consistent with his written view, I don’t know, I would have to ask my instructing solicitor for some more information in relation to that particular issue. So I don’t know that I can fully respond to my friend on that particular issue.”
On the reports of Mr Fraser there was a critical issue about for how long the 95 accident had advanced the onset of the significant lumbar symptoms, which in the passage quoted from his report above he suggested was less than five years. The point being raised before the Judge on 19 August was whether in the passage quoted from Mr Sweeney’s final report in paragraph 41 above he was agreeing with the estimate of Mr Fraser of less than five years. If he did have some different view about the period in question, it was incumbent on the plaintiff’s solicitors under Rule 38.01 to have obtained a further report from him and have supplied it to the defendant’s solicitors well before this trial. That did not occur. No explanation was offered as to why it was not done. The defendant’s counsel assumed from the failure to supply a further report that Mr Sweeney did not take issue with Mr Fraser’s opinion on this point, and only learned to the contrary from the plaintiff’s present counsel at about the beginning of this trial. I am satisfied that the defendant would have been prejudiced in the conduct of his case at trial if such new important evidence from Mr Sweeney had been adduced. I gave the plaintiff’s counsel an opportunity to apply to adjourn the trial, albeit at his client’s expense, for a further report to be supplied, but he elected not to make the application. There was no basis to allow the evidence of Mr Sweeney’s assessment of the percentage disability if the opinion on the duration of the aggravation was not to be allowed. (In any event he had stated a percentage disability of 15% of the lumbar spine in his report of 19 April 1999.) Rule 30.01(7) is quite explicit that the qualifications of the expert have to be set out in the reports. They did disclose his basic qualifications as an orthopaedic surgeon. It is not in the interests of justice that leave should be given to supplement those qualifications where no proper explanation has been given for why they were not set out in the reports. If leave was to be given whenever a party might possibly be prejudiced from an omission in his or her expert’s report, there would be little point in having the rule.
I deal now with the dumbbell lipomata. The defendant’s counsel submitted in his final address that this issue should not be considered because it was outside the plaintiff’s pleadings. The particulars of injury pleaded were:
“(a)As a result of the collision the plaintiff has suffered an injury to his neck, upper and lower back and shoulders as well as an injury to the inside of both knees.”
I accept that neither dumbbell lipomata, nor irritable bursae, if they be the same condition, come within that pleading, as vague and as generalised as it is. Nevertheless, the defendant’s counsel had not earlier objected to the admission of the evidence of Dr Graham on the topic. As I am against the claim based on the lipomata on the merits it is not necessary to consider whether it should be rejected because it is outside the pleadings, even though it may have been available on the evidence.
I accept the opinion of Professor Bauze that the major part of the plaintiff’s complaints when he saw him in November 2002 were attributable to the dumbbell lipomata. The evidence of the plaintiff about the results of the injections of local anaesthetic confirm the diagnosis of Professor Bauze about the lipomata. No experts said they were caused by, or resulted from, the 95 accident. Professor Bauze’s evidence that they were separate and unrelated to the degeneration of the lumbar spine causes me to infer on the balance of probabilities that they were unrelated to the 95 accident. I am not prepared to act on the apparent assumption in Dr Graham’s evidence that they resulted from the 95 accident. There were too many inconsistencies between what he said about irritable bursae and what Professor Bauze said about dumbbell lipomata for me to accept Dr Graham’s assertion that what he said about what he called irritable bursae applied to what Professor Bauze called dumbbell lipomata.
I accept what Professor Bauze said about dumbbell lipomata in preference to the views of Mr Sweeney about them. Accordingly, the plaintiff is not entitled to recover damages insofar as his symptoms and disabilities have resulted from the dumbbell lipomata.
I accept the opinions of Mr Sweeney, Mr Fraser and Professor Bauze that in the 95 accident the plaintiff suffered an aggravation of his already degenerative lumbar spine, and I prefer their opinions to that of Dr Graham on this topic. This produced symptoms and disabilities for the plaintiff. What is unclear, and which was not addressed in the expert evidence, is the extent to which the lipomata existed before 2002 and the extent to which they caused symptoms and disabilities for the plaintiff before 2002. The issue of any dumbbell lipomata has only arisen relatively recently. There was evidence that he had some symptoms of pain around his sacro-iliac joints and hips since the accident. Mr Sweeney thought it was referred pain from the ligamentous spinal injury. As at November 2002 Professor Bauze thought that lipomata were a better explanation than such referred pain, but he seems to have admitted of the possibility of such pain being referred pain. It may be that in the early stages it was referred pain until the development of the lipomata. On this issue I can do no more than find on the balance of probabilities that in the first few years after the accident the plaintiff’s symptoms and disabilities in his hip region resulted from the aggravation of the spinal degeneration and thereafter they are more likely to have predominantly been attributable to the lipomata. This seems to be consistent with the overall opinion of Professor Bauze who was the most impressive of the expert witnesses.
While appreciating that no scientific or accurate estimate could be made, I accept the opinion of Mr Fraser that the period in which the aggravation of the plaintiff’s spinal degeneration from the 95 accident would have lasted was less than five years. This is also the consistent opinion of Professor Bauze that that point would have been reached “a few years after the accident”. Elsewhere he expressed it as “within a couple of years”. I prefer their opinions to anything to the contrary in the opinions of Mr Sweeney, and particularly as Mr Sweeney treated the disability, which I have found is at least partly attributable to the lipomata, as being referred pain from the spinal degeneration.
The plaintiff’s case on economic loss was presented at trial on the basis that it could be assessed by reference to the gross cost to the Trust of the employment of replacement labour from Badovski onwards. (There was no suggestion that any economic loss could be recovered for the period after the accident in which the plaintiff was employed by Trizone.) This basis of the measure of the plaintiff’s economic loss was too simplistic. It is necessary to limit and qualify it by reference to the following factors:
·On the balance of probabilities the employment of Badovski from March 1997 to January 1978, and that of Craig Pilkington from August 1998 to January 1999, were caused by the plaintiff’s inability to do the sales trips by reason of lower back and hip problems resulting from the 95 accident. However, I find that the employment of Ramsay from August 2000 to December 2001 and of Dean from September 2002 onwards were not attributable to the disabilities of the plaintiff resulting from the 95 accident, but to disabilities from other unrelated causes. I find that the employment of Tibbett from September 1999 to February 2000 was in part attributable to the plaintiff’s disabilities resulting from the 1995 accident as by this time it is likely that the lipomata were more significant and that the lumbar degeneration would have been causing some significant problems in any event. I accept Mr Jay’s calculation of the gross amounts which it cost for the employment of Badovski and Craig Pilkington at $38,527. Of the $12,969 paid out for Tibbett’s employment I find $6,000 is attributable to the 95 accident.
·The Trust received $13,500 for the plaintiff’s services towards setting up the New South Wales venture between August 1997 and early 1998 which was during when Badovski was employed. But for the employment of Badovski it is unlikely that the Trust would have received that income from the plaintiff’s services to Trizone NSW. It was a similar situation to what had occurred in early 1995 when the plaintiff had been available for the Queensland venture because Todd had been doing the regular sales trips. (I do not accept the submission of the plaintiff’s counsel that if the 95 accident had not occurred the New South Wales venture would not have happened. It was rather that the Trust took advantage of the plaintiff being relieved of his previous duties by Badovski to exploit this new business opportunity. Even if there had been no 95 accident, it is possible someone like Badovski would have been employed to cover for the plaintiff while he was engaged in the New South Wales venture.)
·In the latter part of 1999 while Tippett was doing the sales trips there was some benefit to the Trust in the plaintiff being more available to arrange for the acquisition of Snowys.
·The sales chart for the employees of the Trust shows that from March 1997 to January 1998 when Badovski was employed the plaintiff still had gross sales of $103,488 compared with the gross sales of Badovski in this period of $90,140. Although there can be no exact correlation because total sales continually fluctuated, the general trend was that the combined sales of the plaintiff and Badovski from March 1997 to January 1998 generally exceeded the level of the gross sales of the plaintiff alone prior to March 1997. Thus the Trust was gaining some additional benefit from having both Badovski and the plaintiff engaged in sales during this period. In general terms similar conclusions apply for the periods of the employment of Craig Pilkington and Tibbett.
·The work which the plaintiff did around the office and the warehouse and in deliveries and the like when he was on “light duties” while Badovski, Craig Pilkington and Tibbett were employed is likely to have been of some financial benefit to the Trust. Likewise it was of benefit to the business generally to have had the plaintiff as its general manager on hand at its office to deal with problems as they arose rather than having him in the distant country every second week and generally out on the road in the other weeks when he was doing regular sales trips. Although while he was engaged in sales trips some of this work would have been done by him after hours and by telephone and the like, overall there is still likely to have been a significant financial benefit to the Trust from him having been relieved from conducting the regular sales trips by the employment of these other persons. There is no arithmetical way in which Mr Jay as an accountant could calculate the value of this benefit to the Trust. There was no expert evidence on what its value might have been. However, it is a factor which I must generally take into account as best I can in assessing the damages.

For the reasons given above I confine myself in assessing the plaintiff’s past loss of earning capacity to loss of earnings in the financial years 1997 to 2000. In each of those years the plaintiff was employed only by the Trust. His loss of earning capacity is confined to what he would have received in those years from the Trust but for the accident. While on the authorities the measure of his economic loss is what was the impairment of his earning capacity as a result of the 95 accident and what loss of financial benefits he suffered because of that diminution of his earning capacity: Husher v Husher (1999) 197 at 138; Varnas v Peake (2001) 80 SASR 351, in its context here it comes down to the difference between what he actually received from the Trust in those financial years against what he would have received if the 95 accident had not occurred. There was no suggestion that he could have exploited his earning capacity in those years other than through the Trust.
The primary contention of the plaintiff’s counsel was that the gross cost of the replacement salesmen reduced the money available in the Trust for payment to the plaintiff by that amount, and, if they had not been employed, he would have received additional remuneration of that amount from the Trust. I accept that up until the Trust took over the business at the beginning of 1997 the consistent pattern had been that the plaintiff had used his powers of control over Trizone to have it pay to him and his wife all of the moneys available in the business which could have been applied in this way. However, the utilisation of the Trust from 1997 onwards changed the previous pattern of profit distribution.
Insofar as the plaintiff can show on the balance of probabilities that the gross cost to the Trust of the replacement salesmen, insofar as those costs were attributable to the plaintiff’s disabilities from the 95 accident, did reduce the nett amount which the plaintiff himself received from the Trust in those years, that amount is a proper legal measure of his economic loss in this action. There is no arithmetical way of calculating this amount. It can only be done on a broad axe basis. Initially the gross amount paid for the replacement labour must be discounted for the other benefits to the Trust from that labour as I have set out earlier.
Although it was not dealt with explicitly in the evidence or the addresses, a factor which must be brought into account is that the plaintiff used his indirect power of control over the Trust, and earlier Trizone, for the joint economic benefit of himself and his wife. Up until the end of the 2000 financial year the amounts annually received from the business by the plaintiff and his wife were always equal. (The pattern of equality changed slightly in the 2001 financial year and dramatically in the 2002 financial year, presumably because of the illness of the wife, but that does not affect the 1997 to 2000 financial years with which I am concerned.) The plaintiff’s wife was employed in the business doing book work and office work, albeit on occasions with assistance from other paid employees. It is clear that the amounts she was paid for her work were not related to the hours which she worked but, as with the plaintiff, they were governed by the amounts available in the business to be paid to both of them. Thus when the amounts paid to the plaintiff significantly reduced in the 1997-2000 financial years so did the amounts paid to his wife, although there was no suggestion that she had reduced her work in the business. In the 1999 financial year each of the plaintiff and his wife were paid only $1,250 for wages plus $10,621 each for rent, presumably for the office/warehouse premises which they owned.
What I am concerned with is the nett amount which the plaintiff alone would have derived from the Trust in the relevant years but for the 95 accident. His wife is not a plaintiff in the action and there is no claim under s34 of the Wrongs Act for any loss suffered by her. If the cost of replacement labour had been incurred by the Trust as a result of any other incapacity of the plaintiff, that cost would have also reduced by half the moneys to be paid to the plaintiff’s wife. Similarly half of the diminution in returns from the Trust for additional costs to it flowing from the plaintiff’s 95 accident must be attributed to the wife, and thus cannot be awarded to the plaintiff.
Prior to January 1997 the practice of Trizone had been to pay out to the plaintiff and his wife as wages all of the moneys in the business which were available for this purpose. That meant that the plaintiff and his wife paid income tax at ad valorem rates on these moneys which they received. From 1997 onwards this policy was changed and some moneys which otherwise would have been available for distribution to the plaintiff and his wife were left in the Trust, presumably as working capital, and they did not personally have to pay tax on them. Insofar as such moneys were left in the Trust the plaintiff, and other nominated beneficiaries whom he could designate, still had an ultimate entitlement to them. Whether these undistributed earnings of the Trust would have been subject to income tax in the hands of the Trust was not dealt with in the evidence or the addresses. If the Trust had incurred less expenses for replacement labour attributable to the plaintiff’s disabilities resulting from the 95 accident, it is possible that some of this money would have been kept in the Trust and not paid out to the plaintiff or his wife. Whether that amount which ultimately could be derived by the plaintiff or other nominated beneficiaries under the Trust would have been itself diminished by a taxation liability is unknown, but I am prepared to assume that the tax rate to the Trust would have been at least the rate applicable to the plaintiff personally and to assess his damages on this basis.
Insofar as the plaintiff would have received additional income from the Trust in the relevant years which is attributable to his disabilities from the 95 accident he is only entitled to recover as damages that amount less the income tax which he would have paid on such income at his highest marginal rate for the financial year in which it would have been received: Spargo v Haden Engineering Pty Ltd (1993) 60 SASR 39 particularly at 54. There was no evidence of the taxation rates applicable to the plaintiff in the relevant years. I take general judicial notice of the applicable rates and apply them in a manner generally favourable to the defendant.
The damages for past economic loss shown on the balance of probabilities to have resulted from the plaintiff’s disabilities caused by the 1995 accident are assessed at $12,000. Under s35a(1)(d) of the Wrongs Act no amount is awarded for the first week of incapacity. No damages are awarded for future economic loss.
In assessing damages for non-economic loss I accept that in the first few years after the 95 accident the plaintiff suffered a good deal of pain and inconvenience through continuing to work with his aggravated spinal condition and that some of his work activities exacerbated his symptoms. Typically of self-employed people he soldiered on with full time work when others might have taken time off. No non-economic loss is to be allowed for his disabilities after his back problems had become what they would have been if there had been no accident and/or were attributable to the lipomata. On the scale of 0-60 under s35a(1)(b) of the Wrongs Act I assign a numerical value of 5. The multiplier was agreed at $1,450. Damages for non-economic loss are allowed at $7,250.
I allow only the special damages incurred up to mid 2000. Accordingly I disallow the whole of the physiotherapy charges. I allow Dr Graham’s accounts up until December 1997. The special damages are assessed at $375.
In his final submissions counsel for the plaintiff did not pursue any damages for gratuitous services.
In summary the plaintiff’s damages are assessed as follows:
Past economic loss  $12,000
Non-economic loss  7,250
Special damages  375
Total  $19,625
I agreed to defer submissions about pre-judgment interest until after these reasons had been delivered. I will also then hear the defendant’s submissions on the alleged failure of the plaintiff to comply with Magistrates Court Rule 108(8) in not formulating a claim prior to the issue of proceedings.

[2003] SADC 98

25 July 2003