RITTER v Kenny - [2008] SADC 73

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
RITTER v KENNY
[2008] SADC 73
Judgment of Her Honour Judge Shaw
18 June 2008
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - ACTIONS FOR NEGLIGENCE
Plaintiff suffered injuries in road accident. Rear end collision. Liability apportioned 70% against the defendant.

TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES - APPORTIONMENT IN PARTICULAR SITUATIONS AND CASES
Measure and remoteness of damages in actions for tort. Plaintiff suffered chronic pain condition as a result of physical injuries suffered in the accident. After apportionment of liability, damages award of $165,987.50, including interest.
Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 s 7, s 8, s 9; Wrongs Act 1936 s 27A, s 35A, referred to.
Stoeckel v Harpas (1971) 1 SASR 172; Kambouridis v Heyn & Transadelaide [2000] SASC 361, [7]; Pennington v Norris (1956) 96 CLR 10 at 15; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492, 493-494; Cook v Jennings [2007] TASSC 40 [36]; Ticehurst v Skeen Supreme Court, NSW – Wood J – 5 March 1986 CLD No 9146/82; Lawes v Nominal Defendant [2007] QSC 092 at [45]; Birkholz v R.J. Gilbertson Pty Ltd (1985) 38 SASR 121, 130; Purkess v Crittenden (1965) 114 CLR 164, 165, 168; Pipikos v W Brown & Sons Pty Ltd [1970] SASR 508, 514; Donjerkovic v Adelaide Steamship Industries Pty Ltd (1980) 24 SASR 347, 353; Packer v Cameron (1989) 54 SASR 246, 250-252, considered.

RITTER v KENNY
[2008] SADC 73
Introduction

The plaintiff sues for damages for personal injuries and consequential loss allegedly caused by the negligent driving of the defendant near Mt Gambier on 29 August 2002.
At about 5.30am on that day, a branch had fallen across the Riddoch Highway about 15 kilometres from Mt Gambier.
A number of employees of Auspine, including the plaintiff and the defendant, travelled to this location on their way to their place of employment.
The plaintiff collided with the rear of the defendant’s motor vehicle at that location.
Both liability and quantum are in issue.
The Issues
The plaintiff claimed that the defendant’s negligent manner of driving caused the collision.
The plaintiff claimed that the defendant stopped in the centre of a carriageway for traffic travelling in his direction, in circumstances where it was unsafe to do so.
On the other hand, the defendant claimed that the accident was caused solely by the plaintiff’s negligence. The defendant contended that the plaintiff was travelling too fast in the circumstances, failed to keep a proper lookout and, as the following vehicle, collided with the rear of the defendant’s moving vehicle.
The plaintiff claimed damages in relation to injuries suffered by him in the accident. He contended that he suffered soft tissue injuries, and that over time, he became increasingly debilitated as a result of a chronic pain condition.
The defendant disputed the plaintiff’s claims and contended that the plaintiff suffered at most, soft tissue injuries which resolved four weeks after the accident.
The plaintiff was unrepresented during the hearing.
I will deal firstly, with the evidence in relation to the circumstances of the collision.
Circumstances of the Collision
The Plaintiff’s Evidence
The plaintiff said that at about 5.35am on the day of the collision, he was driving his 1989 Scania SAAB 900 motor vehicle along the Riddoch Highway on his way to work at Auspine, Tarpena.
The speed limit was 110 kilometres per hour. The plaintiff said that he travelled at a speed of about 100 kilometres per hour.
It was still dark.
It was raining and blowing a gale.
As he travelled around a left hand bend in the highway, he saw bright red taillights belonging to a vehicle which was in front of him.
This was the defendant’s Ford Falcon motor vehicle.
He also saw a set of dull red taillights belonging to another vehicle, in an area where the carriageways separated and an overtaking lane commenced.
As the plaintiff approached the area, he realised that the vehicles were actually stopped.
Prior to entering the left hand bend, he had seen vehicles approaching him from the opposite direction to his path of travel.
He believed that there was no clear path of travel either side of the defendant’s vehicle. Therefore, he commenced to brake heavily.
He collided with the rear of the defendant’s vehicle.
After the collision, the defendant moved his vehicle about 100 meters further up the road. The plaintiff’s vehicle was moved to an island area in the centre of the divided carriageways.
During cross-examination, the plaintiff denied that he had overtaken a vehicle at high speed as he drove along the Riddoch Highway.
Mr Frieske’s Evidence
The plaintiff called Mr Frieske to give evidence. Mr Frieske said that on the morning of the accident, he was driving his Hino truck along the Riddoch Highway to Adelaide from Mt Gambier, when he was warned by another driver on the UHF radio, that there was an obstacle on the road ahead of him. He arrived at the scene of the subsequent collision. He saw a branch across the road and vehicles stopped nearby.
He parked his truck off the road on the left hand side of the highway.
He said that he put on his hazard and parking lights and got out of his vehicle.
He helped remove the branch from the road.
As he was walking back to his truck, he saw a Ford Falcon (the defendant’s vehicle) arrive at the scene.
He said that the Ford Falcon stopped and the driver spoke to someone who was standing on the road and leaning on the front passenger window of the Ford Falcon. That person had his hands resting on the Ford Falcon and he appeared to lean inside the Ford Falcon. The driver of the Ford Falcon (the defendant) was talking to that person for 20 to 40 seconds.
At the time of this observation, the branch had been cleared from the road.
Mr Frieske said that the Ford Falcon was stationary on the highway at a point before the road divided into two lanes for traffic travelling towards Auspine.
Mr Frieske said that the collision occurred when the plaintiff’s vehicle “....comes around the corner and bang – in the actual lane, the single lane part of the road. So I, you [the plaintiff] came around the bend, you [the plaintiff] had really nowhere to go, ....”.[1]
[1] Transcript p215 - 216
Prior to impact, the plaintiff’s motor vehicle had commenced sliding or skidding.
Mr Frieske said that at the time of the collision, the Ford Falcon was moving very slowly and had only moved a few metres.[2]
[2] Transcript p216
Mr Frieske said that the Ford Falcon did not have its hazard lights on.
Mr Hall
The plaintiff called Mr Hall, a mechanical engineer and an expert in road accident reconstruction. Given the scenario for the accident as presented to him by the plaintiff, Mr Hall expressed the opinion that the plaintiff could have brought his vehicle safely to a halt if the plaintiff had commenced to react immediately upon seeing the obstruction ahead and if one assumed that his reaction time was within a given range.[3]
Evidence Called by the Defendant
[3] Transcript pp793-795; 805-806
The defendant, Mr Kenny gave evidence and also called Mr Kent and Mr Robinson, fellow employees at Auspine.
Mr Kenny’s Evidence
Mr Kenny said that on the day of the accident, he travelled along the Riddoch Highway on his way to work at Auspine. Mr Kenny said that he was travelling at 100 kilometres per hour. He came around the bend and saw stationary vehicles ahead of him. He said that there were no hazard lights operating on any vehicles.
He said that he saw two men in the middle of the road cleaning up a tree branch and one standing on the side of the road beside a truck.
He said that the truck (which belonged to Mr Frieske) was parked half on and half off the bitumen surface of the road.
He slowed down because he saw people on the road.
Mr Kenny said that he did not stop his vehicle, and he did not talk to anyone. He said he began to accelerate and he drove between the two men in the middle of the road and the truck driver.
He said that as he was travelling through the left hand side of two lanes for forward traffic, his vehicle was struck from behind.
He denied that his vehicle was stationary and that he was talking to a fellow employee, Leigh Kent, when the collision occurred. He knew Mr Kent because he was an apprentice at Auspine.
Mr Kenny described the arrival of a fellow employee Mr Robinson, and of the police.
Mr Kenny said that, in the presence of himself and Mr Robinson, the plaintiff said he was drinking a cup of coffee when he struck Mr Kenny’s vehicle.
Mr Robinson gave Mr Kenny a lift to Auspine.
Mr Robinson’s Evidence
Mr Robinson was called by the defendant.
Mr Robinson said that a motor vehicle overtook him at speed prior to his arrival at the accident scene.
He said that as he approached the accident scene, he noticed that the hazard lights of the stationary truck were operating. He said that when he arrived at the accident scene, he saw that the vehicle that had overtaken him, had collided with Mr Kenny’s vehicle. He said that prior to this date, he had seen this other vehicle at Auspine.
He also gave an account of a conversation with the plaintiff about coffee.
Mr Kent’s Evidence
Mr Leigh Kent, another employee of Auspine, was called by the defendant.
He said that at about 5.30am on the day of the accident, he was driving to work at Auspine. He collided with a branch on the roadway and drove over the top of it.
He said that other vehicles also struck the branch.
By the time he walked back to where he had collided with the branch, it had been moved from the roadway by others who were at the scene.
He said that he saw Mr Kenny’s vehicle moving through the area.
He heard the sound of a screech consistent with brakes being applied and then a crack sound.
Location of Vehicles After the Collision
Each of the witnesses drew plans to describe the location of people, the branch and vehicles at about the time of the collision.
Mr Frieske described the collision as occurring before the carriageway divided.[4]
[4] Exhibit P6
Mr Kenny indicated that at the time of the collision, his vehicle was located further along from the truck at a point where the road had already separated. He also described where he saw persons on the road as he approached the area.[5]
[5] Exhibit D19
Mr Robinson positioned the truck and the two vehicles involved in the collision, at a point where the road had separated.[6] However, he placed those two vehicles almost adjacent to the truck.
[6] Exhibit D13
Mr Kent placed both the plaintiff and defendant’s vehicles in the area where the road was divided and past the location of the truck.[7]
[7] Exhibit P21
Credibility and Reliability in Relation to Liability Issues
I consider that Mr Frieske is a very important witness.
Prior to the collision, he had not met either Mr Kenny or the plaintiff. I consider him to be completely independent.
I prefer his evidence to that of both Mr Kenny and of Mr Kent as to the location and movement of Mr Kenny’s vehicle just prior to the collision. In particular, I reject Mr Kenny’s account that he did not stop his vehicle at the accident scene prior to the collision.
The plaintiff was a careful witness who gave a detailed account of the circumstances of the accident. In my view, he was endeavouring to tell the truth. I found his account to be generally reliable.
I was not impressed by the evidence of Mr Robinson.
I consider that his evidence is unreliable.
He supported Mr Kenny at the accident scene and provided assistance to him, although the plaintiff was also an employee of Auspine.
Although Mr Robinson may have thought that he recognised the plaintiff’s vehicle at the accident scene from the work place, I am not satisfied on the balance of probabilities that Mr Robinson saw that vehicle overtake him prior to the accident. I prefer the evidence of the plaintiff to that of Mr Robinson in relation to this matter.
Mr Robinson gave evidence in support of Mr Kenny’s account of an alleged statement by the plaintiff that he was drinking coffee prior to the collision.
The plaintiff agreed that he did make such a comment but he explained that it was intended as sarcasm, in the context of Mr Kenny’s aggressive tone towards him.
Mr Kenny agreed that he had spoken in an angry way to the plaintiff.
In relation to this matter, I prefer the evidence of the plaintiff to that of Mr Kenny and Mr Robinson. I find that the plaintiff’s reference to drinking coffee was not an admission that he had been drinking coffee whilst driving.
Findings as to the Collision
Having considered the evidence of the various witnesses, the diagrams, the photographs, the evidence of the expert accident reconstructionist, Mr Hall and the other matters relied upon by counsel during their addresses, I make the following findings of fact.
At the time of the collision, it was dark, drizzling rain and windy.
A branch had fallen on the Riddoch Highway in an area where the road was divided. Mr Kent drove over the branch. Other vehicles also stopped. Mr Frieske arrived at the scene and parked his truck on the left side of the road in order to clear the branch.
Mr Frieske and others removed the branch and cleared the road. Mr Kent walked back along the side of the road in the direction of traffic approaching this location from Mount Gambier.
I find that when Mr Kenny approached the area, the branch and any foliage had already been removed from the road so that his path of travel was clear.
Those who had stopped to remove the branch were returning to their vehicles in order to leave the area.
I find that Mr Kenny stopped his vehicle in the single lane before the fork in the road and before the road divided into a double lane highway. His vehicle was adjacent to Mr Frieske’s truck. I find that at the time that Mr Kenny stopped his vehicle in the middle of the carriageway, he was not faced with an emergency situation. The road was clear for his path of travel. Mr Kenny was talking to a person leaning on his front passenger window for up to forty seconds. Mr Kenny’s vehicle presented an obstruction on the road for traffic approaching that location.
The plaintiff was driving his motor vehicle at a speed of about 100 kms per hour in a 110 km speed zone. I am not satisfied on the balance of probabilities, that the plaintiff’s vehicle overtook Mr Robinson’s vehicle as he described or at all.
When the plaintiff travelled around the sweeping bend on the highway, he saw the rear taillights of both the truck and Mr Kenny’s vehicle adjacent to each other, apparently blocking his path of intended travel.
I am not satisfied that the hazard lights were operating on Mr Frieske’s truck or on the Ford Falcon as the plaintiff approached their location.
The plaintiff formed the view that there was no safe path to the right or the left of those vehicles. He applied his brakes but could not bring his vehicle to a halt prior to the collision.
I find that at the time of the collision, Mr Kenny had begun to move off, but his vehicle had travelled only a few metres.
Mr Frieske’s account of some movement of Mr Kenny’s vehicle is consistent with Mr Kenny having commenced to move off from the stationary position immediately piror to impact.
I find that although the presence of other vehicles at that location required Mr Kenny to slow down and drive cautiously, there was no reason for him to stop on the carriageway.
If Mr Kenny wished to assist or make any enquiries, he ought to have removed his vehicle from the carriageway before doing so.
Findings as to Breach of Duty
The driver of a motor vehicle has a duty to take reasonable care for other road users. In order to discharge that duty, a driver must drive defensively and anticipate both immediate and potential danger.[8]
[8]Stoeckel v Harpas (1971) 1 SASR 172
I find that the defendant, Mr Kenny was in breach of his duty of care to other road users. Upon the basis of the findings that I have made, he ought to have foreseen that to stop his vehicle in the middle of a carriageway of a highway in the circumstances that he did, would create a risk of danger to other road users. In my view, the circumstances as they existed, were not responsible for Mr Kenny stopping his vehicle at that location. Rather, he chose to stop his vehicle in the middle of the carriageway in order to speak to someone who was at the side of the road. He thereby created an obstacle on the roadway for traffic following behind him.
Riddoch Highway was a major highway with vehicles travelling at 110 kilometres per hour. Mr Kenny must have known that other employees of Auspine and other road users would be travelling to that point at 110 kilometres per hour. If Mr Kenny wished to make enquiries at the scene, he ought to have driven his vehicle off the carriageway before commencing to do so.
I do not accept that there was nothing else that Mr Kenny could reasonably be expected to do.
I find that the defendant was negligent in that he deliberately stopped his vehicle at a location where it was likely to obstruct other road users and likely to create a danger to other road users, including the plaintiff.
I turn to a consideration of the plaintiff’s driving.
The plaintiff was required to drive defensively and to look ahead in search of foreseeable dangers.[9]
[9] Kambouridis v Heyn & Transadelaide [2000] SASC 361, [7]
The following driver bears a heavy onus. He must anticipate that emergency situations might require drivers to stop suddenly in front of him. The evidence of Mr Hall makes it plain that if the plaintiff was keeping a proper look out, and had begun to slow down at the earliest sighting of an obstruction on the road, he could have brought his vehicle to a halt and avoided a collision. The plaintiff did not keep a proper look out and therefore, did not appreciate the dangerous situation early enough.
The weather conditions and circumstances prevailing at the time required the plaintiff as a prudent driver, to treat the 110 kilometres per hour speed restriction as the maximum allowable.
Having regard to Mr Hall’s evidence, I am of the view that the plaintiff’s lookout must have been defective. If the plaintiff had seen the obstruction earlier and appreciated the necessity to stop his vehicle earlier, he may well have braked at an earlier point in time and avoided the collision.
I find that the plaintiff’s failure to keep a proper lookout was a cause of the collision. I find that the plaintiff was in breach of his duty to Mr Kenny.
Apportionment of Liability
I turn to the question of apportionment of liability.
I am empowered to apportion fault in this matter by section 7 of the Law Reform (Contributory Negligence and Apportionment of Liability)Act 2001, (“the Act”).
It was submitted on behalf of the defendant in the written outline, that the assessment of contributory negligence is to be made pursuant to section 27A of the Wrongs Act 1936. I note that that section was repealed by section 9 of the Act, which came into operation on 16 August 2001. This accident occurred on 29 August 2002. Therefore, it is section 7 of the Act which governs the apportionment of responsibility. The relevant parts of section 7 of that Act are as follows –
7.(1) If contributory negligence contributes to (but is not the sole cause of) the harm for which a claimant seeks damages, the claim is not to be defeated on the ground of the contributory negligence.
(2) If a claimant's harm is caused partly by another's fault and partly by contributory negligence, the court must proceed as follows:
(a)the court must determine (and record) the amount of the damages to which the claimant would have been entitled assuming there had been no contributory negligence; and
(b)the court must then reduce the amount so determined to the extent the court thinks just and equitable having regard to the extent the contributory negligence contributed to the harm.
.....
(4)In this section, a reference to contributory negligence extends, in the case of a claim for derivative harm, to negligence on the part of the person who suffered the primary harm.

The transitional provision, section 8 provides that the Act applies to a cause of action that arises from an act or omission that occurred before its commencement.
It is plain that section 7 of the Act provides a wide discretion to apportion liability in a way which is just and equitable.[10]
[10] Pennington v Norris (1956) 96 CLR 10 at 15
The guiding principles are summarised in Podrebersek v Australian Iron & Steel Pty Ltd[11] as follows:
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison of both culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd; [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and cases there cited.
It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.
[11] (1985) 59 ALJR 492, 493-494
It is necessary to make a comparison of culpability between the parties.
In determining apportionment, I must consider the entire conduct of each of the parties. I must consider their respective culpability and the part that each played in the accident.
Having found that the defendant was in breach of his duty, it is necessary to evaluate the seriousness of that breach.
The action of the defendant in stopping his vehicle in the middle of the road in the circumstances in which he did, was unusual and unexpected.
The defendant allowed a highly dangerous situation to exist. It was virtually inevitable that an accident would result.[12]
[12] Cook v Jennings [2007] TASSC 40 [36]
I regard the negligence of the defendant as serious.
I have taken into account the heavy onus on the plaintiff as the following driver, his speed and the weather conditions at the time.
In my view, the plaintiff had no forewarning of a dangerous situation arising until he travelled around the sweeping bend and saw what he believed to be an obstruction to his intended path of travel. The plaintiff had only a limited opportunity to avoid the impact once he became aware of the situation of danger created by the defendant.
However, the plaintiff’s opportunity to avoid the impact became even more limited because of the plaintiff’s poor lookout and his failure to drive defensively. The plaintiff’s breach of duty occurred because of his failure to commence to brake early enough, once he realised that there was a vehicle stopped on the road in front of him.[13]
[13] cf. Ticehurst v Skeen Supreme Court, NSW – Wood J –5 March 1986 CLD No 9146/82
In my view, the plaintiff was guilty of contributory negligence
However, I find that the defendant ought to bear the major responsibility for the collision.
His vehicle was the instrument by which the danger was created. More importantly, that driver had ample time, as well no doubt as the means at hand, to adopt suitable precautions which had every prospect of obviating the risk that eventuated.[14]
[14] Lawes v Nominal Defendant [2007] QSC 092 at [45]
Therefore, undertaking the comparison of culpability required, I regard the defendant at 70% responsible for the collision and the plaintiff responsible to the extent of 30%. The plaintiff’s damages are to be reduced by that amount.
Quantum
Pre-existing Condition – Causation
The plaintiff must prove that the negligent driving of the defendant caused or “materially contributed” to the plaintiff’s injuries.[15]
[15] Birkholz v R.J. Gilbertson Pty Ltd (1985) 38 SASR 121, 130
If the plaintiff establishes a prima facie case that the injuries have resulted from the defendant’s negligence, then the defendant bears the onus of establishing some other cause.[16]
[16] Purkess v Crittenden (1965) 114 CLR 164, 168
Further, the defendant must take the plaintiff as he finds him. It is no answer to say that the plaintiff has a pre-existing condition or stressors in his life such that he was unusually susceptible to the injuries suffered by him in the collision.[17]
[17] Pipikos v W Brown & Sons Pty Ltd [1970] SASR 508, 514
However, the defendant is not liable for a disability which the plaintiff would have inevitably sustained, irrespective of the accident unless the accident exacerbated the disability or accelerated its onset. In that instance, the defendant will be liable only for the exacerbation or the extent of the exacerbation.
The Plaintiff’s Evidence
Background
The plaintiff was born on 9 April 1965. He was aged 37 years at the date of the accident and 42 years at the date of the hearing.
His father died when he was quite young. After leaving school, he worked in the abattoirs for a short time. When he was 18 years of age, he joined the army. He remained in the army for six years and trained as a chef. When he left the army, he worked as a chef from 1988 to 2000. He was employed by leading restaurants in Brisbane, Queensland and Adelaide. He also worked in the catering industry.
Prior to the accident, the plaintiff enjoyed various sports. He enjoyed playing golf and baseball. He said that this was some time before the accident.
At the time of the accident, he had been employed at Auspine for about 2 years. He enjoyed working for the company and was gaining forklift-driving experience. Following the accident, he remained off work for a period of four weeks, before resuming his former duties at Auspine. He ceased work on 17 July 2003 and has not worked since.
By letter dated 8 November 2002, the plaintiff was advised that his claim for compensation for injuries caused by the accident, was denied.
On 22 July 2004, he was granted a disability pension.
At the time of the accident, the plaintiff had two children, aged 5 years and 3 years, who lived with their mother in Queensland. He was seeking custody of them.
He began a relationship with Ms East who had two young children.
Following the accident, it was necessary for him to be assisted by his mother and stepfather.
Ms East had purchased a small property in Mt Gambier in 2000. In about 2004, a shed was built on the property. On 12 December 2006, the plaintiff gained custody of his children. They currently reside with him and Ms East’s children on the Mt Gambier property
He gave evidence about his activities on the property.
He called Ms East to give evidence in relation to her observations of the apparent impact of the plaintiff’s injuries upon his functioning and quality of life.
The defendant called a neighbour to describe his observations of the plaintiff’s activities on the property following the accident.
The Plaintiff’s Description of his Injuries
The plaintiff’s evidence about his injuries and the impact of his injuries upon his functioning, was at times difficult to follow.
However, the employment records and medical evidence were of great assistance in understanding the plaintiff’s post accident history.
The plaintiff suffered multiple soft tissue injuries. As a result of the accident, the plaintiff saw Dr McEntee on 29 August 2002. He remained absent from work for a period of four weeks. He was able to return to his employment at Auspine and manage his duties with the assistance of his supervisor. Eventually, he ceased work in July 2003.
The plaintiff, in his evidence, described a total incapacity for any kind of employment and substantial impairment of his ability to carry out the most basic tasks. The plaintiff said that this impairment persisted.
He said that from the time that he ceased work in July 2003, his parents provided him with assistance around the home. He could not mow the lawns or work in the garden and he spent periods resting during the day. This was in marked contrast to his pre-accident work history, involvement in sport and active pursuit of various activities.
Currently, there are not many areas in his body where he does not experience pain. The plaintiff said that he suffered pain in his back, hips, shoulders, limbs, knees, feet and wrists. He described experiencing continuous pain in the middle of his back and lower back. The pain is enhanced by physical activity and sitting for any prolonged period.
He experiences constant pain in both shoulders which affects his lifting ability. He has constant pain in his knees. This causes difficulty squatting and kneeling. He experiences difficulty walking but walks slowly and, at times, with a limp. He experiences discomfort in both ankles and feet.
He experiences tiredness. He is moody and has decreased tolerance in relation to the children. He has difficulty sleeping. He spends much of the day resting.
His experience of pain means that he can spend only a limited amount of time undertaking duties around the property that are within his capabilities. He collects the children from school but driving a motor vehicle aggravates his pain.
He is able to function with the assistance of morphine injections. He is on a disability pension.
The Medical Evidence
I received medical reports and oral evidence from Dr McEntee, the plaintiff’s treating general practitioner. At the plaintiff’s initial presentation on 29 August 2002, Dr McEntee assessed the plaintiff as having multiple soft tissue injuries and possible mild concussion. Although there seemed to be some clinical improvement over time, the plaintiff continued to complain of back pain. The plaintiff returned to work four weeks later. In April 2003, Dr McEntee referred the plaintiff to Mr McCusker, an orthopaedic surgeon. In his report of 4 March 2005, Dr McEntee stated that as far “as he was aware”, the plaintiff had “ceased his mill hand duties in an effort to alleviate his symptoms”. He considered that the plaintiff’s prognosis was “guarded”. In July 2003, Mr McCusker recommended that the plaintiff undertake an assessment by a rehabilitation physician.
On 24 November 2003, the plaintiff was referred to the Complex Injury Group for assessment. In February 2004, the Complex Injury Group reported to Dr McEntee that the plaintiff had a range of strain injuries. However, the plaintiff was also angry, distressed and depressed. He had become immobile and oversensitive. He was referred for psychological assessment and orthopaedic assessment.
In a report from the Complex Injury Group to Dr McEntee of 14 May 2004, there is a detailed description of the plaintiff’s physical complaints.
The Complex Injury Group report also included a psychological assessment. The plaintiff showed obsessional personality qualities. The plaintiff expressed a need to understand the detail of his injuries. By the time of this assessment, the plaintiff felt a “perceived invalidation from the insurer and from the medical professionals” which had led to feelings of worthlessness and symptoms of depression and anxiety.[18] He was suffering major stress as a result of the rejection of his claim by the insurer.
[18] Report of Dr Graham Wright of Complex Injury Unit Exhibit P15
By February 2005, the plaintiff was receiving maintenance Kapanol therapy (an opiate medication) for his pain.
At the request of the insurer of the employer, the plaintiff was examined by Mr Graham Lewis, an orthopaedic surgeon.
At the request of the insurer of the employer, a psychiatrist, Dr Duke examined the plaintiff on 11 October 2005. In his report dated 17 October 2005, Dr Duke expressed the opinion that the plaintiff was suffering from a moderate to severe undifferentiated somatoform disorder.
Dr Duke pointed out that the plaintiff had received no treatment for this somatoform disorder since his last attendance at the pain clinic in August 2004. He expressed the view that “given that the plaintiff has now had this disorder for some three years”, the plaintiff’s prognosis was poor because he had not had access to any treatment for at least the last year. Another factor which compounded the plaintiff’s disorder was the unresolved legal action. He described this as “a handicap to recovery”.
Dr Duke expressed the view that even with his current condition, the plaintiff was not incapable of all work. However, physical jobs such as a mill hand were probably unsuitable.
In a later report, Dr Duke expressed the view that the psychological treatment had not been adequate and that it was inappropriate for the plaintiff to be taking opiate medication where there were no severe orthopaedic difficulties.
Dr Duke gave evidence and was asked to express opinions based upon certain assumptions and information provided to him on behalf of the defendant. He had not re-examined the plaintiff. During evidence, Dr Duke qualified his opinions in the light of the information and assumptions put to him on behalf of the defendant.
I also received evidence from Mr Keith Smith, a consulting psychologist. Having regard to his consultations with the plaintiff on 11 December 2006, and earlier reports, Mr Smith expressed the view that the plaintiff suffered from a chronic pain syndrome with related depression and anxiety arising out of his inability to cope with his symptoms and the protracted legal process. During his evidence, he explained how the plaintiff was hyper-vigilant with his pain. That is, he believed it was going to occur and therefore guarded against it. The plaintiff appeared to be moving in and out of a mood disorder. During counselling, Mr Smith endeavoured to provide the plaintiff with strategies to assist him to override his perception of pain.
Mr Smith recommended ongoing psychological intervention. However, funding restrictions subsequently prevented that happening.
I also heard evidence and received a report from Dr Jules Begg, a psychiatrist, who saw the plaintiff on one occasion in October 2006, at the request of the insurer. Dr Begg expressed the opinion that the plaintiff suffered from a chronic pain disorder which had its origins in the plaintiff’s psychological functioning. He expressed the belief that there was not a direct relationship between the accident and the plaintiff’s psychiatric condition.
Defendant’s Submissions
On behalf of the defendant, it was submitted that the plaintiff’s evidence was a description of unremitting debilitating pain over a long period of time.
The defendant contended that any psychogenic or psychological pain condition suffered by the plaintiff, was primarily attributable to life stressors and personality traits or disorders, and not to the accident. Further, it was contended that the court could not rely upon the plaintiff’s account of his injuries or his experience of pain.
The defendant pointed to many physical activities that the plaintiff admitted that he could perform which had not been disclosed to those who had been treating his injuries and his pain condition over a long period of time. The defendant submitted that the inconsistencies within the plaintiff’s evidence and with the medical evidence, ought to persuade the court that the plaintiff was an unreliable witness.
The defendant submitted that on the day of the accident, the plaintiff attended upon his general practitioner, Dr McEntee. According to Dr McEntee, the plaintiff complained of a sore neck, back and headache. Dr McEntee made no note of injuries to any other areas for at least two months. In particular, there was no reference at that time to sore elbows and wrists of which the plaintiff complained in his evidence.
The defendant conceded that as a result of the accident, the plaintiff sustained injuries to his neck, back and suffered headaches, and that his injuries had interrupted his ability to work for one month after the accident.
The defendant submitted that the variability in the plaintiff’s claimed disabilities as reported to various medical experts and in evidence, was inconsistent with a somatoform pain disorder.
The defendant submitted that the plaintiff did not consult with his doctor before ceasing his employment in July 2003. The defendant submitted that the plaintiff failed to mitigate his loss in this respect. The defendant pointed to all of the activities that the plaintiff was able to undertake on his property.
It was submitted that if the plaintiff could work productively around his home, he could have used his earning capacity for gainful employment.
Further, the defendant submitted that the plaintiff’s injuries needed to be viewed in the light of a subsequent assault, a second motor vehicle accident, Family Court proceedings, unsuccessful claims for other forms of compensation, problems with legal representation for the current litigation, and the death of his brother.
It was submitted that it had not been proven that the various injuries alleged by the plaintiff, were caused or contributed to by the accident. The defendant contended that the plaintiff’s presentation of pain was not genuine, that it was exaggerated and any genuine pain was the result of pre-existing and unrelated events or personality traits.
Findings in Relation to Pain and Suffering
I have considered the many criticisms of the plaintiff’s evidence, and the opinions of the medical experts, some of which may appear to be in conflict with the plaintiff’s account of his extensive disability. Despite those criticisms, I am satisfied that the plaintiff’s evidence was honest and reliable in relation to both his past and current experience of pain and his disabilities.[19] I am satisfied that he did not intentionally mislead any medical or psychological expert whom he consulted in relation to these matters. However, a real question arises as to the extent to which his experience of pain in the past and currently, is psychological.
[19] cf. Donjerkovic v Adelaide Steamship Industries Pty Ltd (1980) 24 SASR 347, 353
Immediately following the accident, the plaintiff suffered pain and discomfort in his neck and back. I am satisfied that the plaintiff suffered major stress as a result of the rejection of his claim by the insurer. In my view, the plaintiff’s disabilities initially had a physical basis. However, psychological factors, which developed as a result of his physical injuries and the rejection of his claim, contributed increasingly to the plaintiff’s experience of pain and to his disability. In my view, the plaintiff’s complaints and experiences of pain are genuine and his disabilities associated with his feelings of pain are real to him. He has suffered and continues to suffer significant disabilities. I accept his account of those ongoing disabilities. I find that the plaintiff now suffers from a long-standing psychological pain disorder.
I accept the plaintiff’s evidence and the evidence of Ms East in relation to their respective descriptions of the impact of the plaintiff’s` disabilities upon his daily life and functioning.
I am satisfied that the plaintiff was in good physical health before the accident. He had a good employment history.
Causation
The court is required to determine which injuries were caused by the accident. I conclude that in consequence of the accident, the plaintiff suffered soft tissue injuries to his neck and back which caused pain and discomfort.
I find that the plaintiff also suffered a psychological pain condition which over time, meant that the plaintiff’s experience of pain increased. He was referred to the Complex Injury Pain Clinic. He was unable to continue psychological counselling because of a lack of funds. His pain disorder persisted. It is currently treated with opiates.
I find that the plaintiff’s chronic pain condition was caused by the injuries suffered in the accident and the consequence of those injuries. I find that his pain disorder is responsible for his inability to continue in his employment since July 2003.
I reject the medical evidence to the contrary. In particular, I reject Dr Begg’s belief that the plaintiff’s chronic pain condition was not substantially caused by the accident. I find that Dr Begg’s opinions were based upon much theory and speculation. In particular, I reject the speculation that the plaintiff was conflicted in relation to the custody to his children. In my view, the plaintiff genuinely wished to gain custody of his children. Indeed, he was successful in his pursuit to do so.

In my view, the accident remained the significant cause of the plaintiff’s injuries and, more importantly, of his ongoing psychological condition. I am not satisfied that any subsequent event is a relevant contributing factor to the pain condition. I am satisfied that the plaintiff has proved that the defendant’s negligence materially contributed to his current condition. I am not satisfied that any other possible causes of the plaintiff’s pain condition can be disentangled.[20]
[20] Purkess v Crittenden (1965) 114 CLR 164, 165
I accept that the plaintiff has been unable to enjoy his previous activities and has been restricted in his potential to pursue previous sporting interests.
I accept that the plaintiff’s enjoyment of life has been restricted for a significant period by his constant pain and disability.
I am not satisfied that any pre-accident condition or personality traits of the plaintiff were such that the plaintiff was more susceptible or vulnerable to injury, and that he would have suffered his pain or disabilities in any event.
Finding in Relation to Capacity for Work
The plaintiff’s injuries had the result that the plaintiff was unable to work for about a month after the accident. When he returned to work, he continued to suffer pain and discomfort. Despite his injuries, he remained at work until July 2003. He was unable to continue at work from that time because of his inability to cope with his injuries.
I consider that the injuries suffered in the accident prevented the plaintiff from returning to his employment at Auspine after July 2003.
I find that as a result of the injuries suffered by the plaintiff in the collision and the resulting pain condition, the plaintiff was totally incapacitated for his previous employment from July 2003. I find that as a result of his chronic pain disorder, he remains completely incapacitated for work. He continues to be treated with opiate medication for the pain. I accept the opinion of Mr Smith that the pain disorder is likely to resolve within one year after this litigation has concluded, if the plaintiff is provided with psychological counselling. In addition, he will likely require treatment with opiates for at least part of that period. I find that the plaintiff will be totally incapacitated for work until his condition resolves.
I am not satisfied that since July 2003, the plaintiff has been fit for any less strenuous alternative employment. I am not satisfied that there is any failure by the plaintiff to mitigate his loss by seeking medical advice as to possible alternative duties.
Assessment of Damages
Pain & Suffering
It is necessary to calculate non-economic loss pursuant to the provisions of section 35A of the Wrongs Act 1936 as it then was.
The court is required to assess damages on the scale of 0-60 where 60 is the worst possible loss that anyone could suffer, not merely that which the particular individual could suffer.[21] For an accident which occurred in 2002, 1 point equals $1,170.00.
[21] Packer v Cameron (1989) 54 SASR 246, 250-252
The court is required to determine what injuries arose from the accident and then apply to them a numerical figure.
Not only must I consider the initial presentation in 2002, but also I must assess the pain and suffering the plaintiff experienced after he ceased work until the date of trial.
It is now almost six years since the accident and almost five years since the plaintiff ceased work.
I have found that the plaintiff’s experience of pain in the various areas of his body is the result of a chronic pain disorder.
In my view, at least since the plaintiff ceased employment in July 2003, he has experienced debilitating and almost constant severe pain in various areas of his body, which has become more debilitating over time as this litigation has progressed. I find that he has a genuine pain disorder in respect of which he will continue to experience ongoing pain. He has suffered considerable discomfort and disruption of his life which has impacted upon his social and family life and upon his capacity to work.
In my view, the plaintiff’s chronic pain disorder was caused by the accident and the subsequent litigation, following the defendant’s denial of liability. In my view, it ought to resolve substantially within about one year after this litigation is concluded. I find it is appropriate to assign a numerical value of 7 out of 60. I assess pain and suffering at $11,970.00. There is no interest to be added to this allowance.
Findings in Relation to Loss of Earnings
I turn to consider the extent of the plaintiff’s loss of earning capacity and the economic consequences that probably will result from that loss. It is necessary to determine a sum which will compensate the plaintiff for his diminished earning capacity which has caused or will cause pecuniary loss.
The plaintiff is entitled to recover in damages any past net loss of earnings in respect of any impaired earning capacity which caused pecuniary loss.
The plaintiff has not been gainfully employed since he ceased work at Auspine in July 2003.
I find that, but for injuries caused in the accident and the psychological injury or sequelae arising from those injuries, the plaintiff would have continued to work at Auspine.
The plaintiff said that, but for the accident, he would have been able to earn $2,000.00 per week. He said that he could earn the sum of $1,000.00 per week for three days work at Auspine and the balance from the profits of a restaurant, which he proposed to develop.
He said that he believed that he could have earned the sum of $100,000.00 per year in the catering or restaurant area, in addition to the income from his continuing employment at Auspine.
I am not satisfied that if the plaintiff had continued to work at Auspine, during the period following the accident, he would have gained additional employment in a restaurant or in the catering industry.
I find the plaintiff suffered economic loss for the three weeks before he returned to work and from the date of leaving work until judgment.
The plaintiff’s group certificates for the year 2003[22] show that the plaintiff earned the sum of $40,974.00 gross for an 11 month period. The net amount received was $31,064.00. The net per month was $2,824.00 for 11 months. This means that for 12 months, his net earning would be in the order of $33,888.00. Hence, the average net per week earned would have been about $651.69.
[22] Exhibit P22
The defendant agrees a loss of wages for the three weeks immediately after the accident, namely, a total loss of $1,955.00.
I find that the plaintiff has also suffered a total loss of earnings since July 2003. Having regard to the evidence of the plaintiff’s earnings at Auspine, and having regard to the positive and negative contingencies such as the potential for an increase in his salary as compared to the possibility of time off for other reasons, I award the global sum of $162,000.00.
Interest
The plaintiff is entitled to interest in relation to his past economic loss. The period relevant to the calculation is the date from when the liability arose. However, in the present case, although there was an absence from employment for one month immediately after the accident, the plaintiff resumed work and did not finally cease employment until July 2003. The appropriate rate of interest is 6.75% being the approximate average of the commercial rates prevailing since 24 May 1997.[23] The defendant disputes the plaintiff’s entitlement to interest for the period of about one year when the trial was adjourned at the request of the plaintiff. In all the circumstances, and in the exercise of my discretion, I find that the plaintiff is entitled to interest throughout that period.
[23] See Third Schedule Supreme Court Rules
I have found that the plaintiff was totally incapacitated for work during that period. The defendant continued to deny liability.
Accordingly, the plaintiff is entitled to interest on the total of his past economic loss. However, a discount should be applied on account of the slow accumulation of the loss over a period, which is the period of the loss since the plaintiff left Auspine in 2003.
I will round up the calculation and award the sum of $5,200.00 for interest.
Future Economic Loss
The plaintiff is also entitled to future economic loss for the period during which he is likely to be incapacitated from work in the future. I must consider both favourable and unfavourable contingencies such as the prospect of ill health, unemployment and accident. I refer to my previous findings in relation to the plaintiff’s disabilities. I accept the evidence of Mr Smith in relation to the plaintiff’s prognosis. I find that the plaintiff should be able to resume work in about one year from the date of this judgment. I accept that past events are not necessarily determinative of an issue about future earning capacity. In my view, as a result of the collision, the plaintiff’s earning capacity is totally impaired for a period of one year. Adopting a broadaxe approach, I award the sum of $33,000.00 in respect of future economic loss.
Superannuation
The plaintiff is also entitled to loss of superannuation. Adopting a broadaxe approach, I multiply the figure for past economic loss and loss of future earning capacity by 11% to take account of various contingencies. I round up the calculation and I award the sum of $21,500.00 for loss of superannuation entitlements. There is no interest payable on this amount.
Gratuitous Services
In my view, the plaintiff is entitled to an award for gratuitous services provided shortly after the accident and after he ceased work in July 2003. Although the evidence is limited as to the extent of and time frame for the gratuitous services provided, I am satisfied that had those services not been provided, other arrangements would have been necessary.
Accordingly, adopting a broadaxe approach, I award the sum of $500.00 inclusive of interest for past gratuitous services.
Future Care
The plaintiff’s medical condition is likely to continue for one year. He will need further psychological counselling to overcome the chronic pain condition. Mr Smith expressed the view that the plaintiff would benefit from about six consultations. However, there has been no real evidence as to the estimated cost of this.
I adopt a broadaxe approach and fix a sum of $1,000.00 for future medical treatment and counselling.
Special Damages
I was not provided with sufficient evidence to make an order for any special damages.
Conclusions and Orders
The court assesses damages for injuries and subsequent psychological or psychiatric sequelae caused by the accident as follows.
Pain and Suffering  $11,970.00
Past Loss
Past economic loss  $163,955.00
Interest on past economic loss  $5,200.00
Gratuitous services  $500.00
Future Loss
Future loss of earning capacity  $33,000.00
Foregone employee’s superannuation contributions        $21,500.00
Future medical care and expenses  $1,000.00
Total  $237,125.00
The total of $237,125.00 is reduced by 30% on account of the plaintiff’s contribution to the accident.
Therefore, there will be judgment entered for the plaintiff in the sum of $165,987.50 including interest.
The parties are entitled to be heard on the issue of costs and any other consequential orders that may become appropriate.