Stephen Reginald Simms v Roxby Management Services Pty Ltd (Defendant 1) and Eltin Pty Ltd (Defendant 2) No. SCGRG 90/2118 Judgment No. 4019 Number of Pages 14 Damages

[1993] SASC 4019

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA ANDERSON J

CWDS
Damages - Industrial injury - plaintiff struck by truck driven by employee of second defendant - hospitalised - some total bodily disability - unable to do heavy work - would have maintained employment were it not for the injury - damages assessed at $395,000 (pain and suffering, past and future $45,000; past economic loss $150,000; future economic loss $200,000).
Negligence - contributory negligence - Plaintiff failed to maintain lookout to his rear - 30 per cent contribution assessed.
Respondeat superior - truck driver employed by second defendant to work at site of first defendant and was directed as to daily work and safety but not as to equipment management - second defendant failed to discharge onus to show it did not remain the general employer.
Mersey Docks and Harbour Board v Cogqins and Griffiths (Liverpool) Ltd. and McFarlane (1946) 2 All ER 345, applied. McDonald v The Commonwealth 46 State Reports (NSW) 129, not followed.
Safe system of work - first defendant has non-delegable duty to provide such a system and failed to do so - responsibility apportioned 30:70 against second defendant.
Wrongs Act 1936s.26. Kondis v The State Transport Authority 55 ALR 225, applied.

HRNG ADELAIDE, 31 May and 2 June 1993 #DATE 30:6:1993
Counsel for plaintiff:         Mr P J Humphries
Solicitors for plaintiff:        Reilly Basheer Downs
   and Humphries
Counsel for defendant Roxby:     Mr P W Eriksen
Solicitors for defendant Roxby: Ross and Mccarthy
Counsel for defendant Eltin:     Mr G L Muecke
Solicitors for defendant Eltin: Lawson Downs

ORDER
Damages awarded.

JUDGE1 ANDERSON J The plaintiff claims damages from the defendants as a consequence of injuries he received on 9 September, 1987 when, in the course of his employment with the first defendant as a driller's assistant employed underground at the Roxby Dam mining site, he was struck by a dump truck owned by the second defendant ("Eltin") and driven by its employee ("Obst"). 2. At trial the plaintiff is 40 years of age. He was born and has lived all of his life at Cowell on the Eyre Peninsula. His father was a professional fisherman and he also followed that calling. For many years longer than is relevant in these proceedings he has held an A class fishing licence and a netting licence. Since he left school at 15 years of age he has worked principally as a fisherman. There have been intermittent variations to his work. He has worked as a labourer on silos, with the Harbours Board on wharves and as a truck driver and farm labourer. However, at no time prior to his employment with the second defendant, which commenced in February 1987, had he worked away from fishing for any lengthy period of time. Those other jobs were nothing more than interludes from his professional fishing over the years. 3. It was one such interlude which initially took him to Roxby Downs to help a friend who was a contract carpenter for two weeks in late 1986. As a consequence of that work he was approached by Mr. Clarke, who is responsible for drilling for the first defendant, and asked whether he would like a permanent job. Thereafter, the plaintiff made formal application and was employed as a driller's assistant. It was clear from the evidence of not only the plaintiff but more particularly from Mr. Clarke, his immediate supervisor, and Mr. Southon, who was at that time a shift supervisor, that for the period of his work at Roxby Downs the plaintiff was regarded as a good and conscientious worker. He was seen as having the competency to advance from driller's assistant to driller in the fullness of time. 4. Since 1975 the defendant has lived in a de facto relationship with Mrs. Higgins. Also in the family were the two youngest of Mrs. Higgins' five children. They were less than two years old when the relationship commenced and they lived with them until reaching adulthood. Indeed, one of them continued to do so at the time of trial. They are no longer dependant. 5. When he commenced working at Olympic Dam the plaintiff was given accommodation in the singlemen's quarters. It was not unusual for the occupants of those quarters from time to time to have their wives visit them and stay for a short period. This had occurred with the plaintiff and Mrs. Higgins. When the plaintiff had time off for more than two days it was his usual practice to return to Cowell, a four and a half hour drive from Roxby Downs. 6. On 9 September, 1987 the plaintiff commenced work at midnight. He was working with his driller in 33NB53NW Drive referred into the evidence both as the North West Drive and the Mirror Drive. On that night he had come down the shaft and gone to the crib room as was usual practice. His driller had walked to the drill site, which was further down the North West Drive than the location with which this matter is concerned. The plaintiff was left to bring some ice to the drill. 7. The drive, which was 360 metres underground, was a tunnel hewn from the earth. It was six metres wide and 4.8 metres high. It was usually illuminated by fluorescent lights, as can be seen from the photographs which were tendered in evidence as the Exhibit P3. A large air duct appearing in those photographs was, by common acknowledgement, not present in September 1987. Neither were the drains which appear in those photographs. The pipes on the righthand side of the drive as the plaintiff walked from the crib room to the work site were present. Both the second defendant and Olympic Dam Producers (ODP) owned large trucks which were used for the transportation of mined ore through the drives of the mine. These trucks are approximately three metres wide and a little over three metres high. The driver's cabin is on the front lefthand corner of the vehicle with the bonnet protruding about a yard from the driver's position. The trucks have high and low beam lights and diesel motors. The wheels of the truck are almost the height of a man. 8. As the plaintiff set out from the crib room to walk to his work site he was wearing employer issued overalls and rubber boots. Those overalls had a large reflective strip on the rear so as to enable pedestrians to be better seen. On this night the plaintiff was wearing a dark blue suit coat over his overalls. The suit coat carried no reflective material. The plaintiff said in evidence that it was usual practice for employees to wear something over the overalls because it was "freezing" in the mine. No jacket was issued by his employer. This evidence was not contradicted. As the plaintiff walked in a generally north-westerly direction from the crib room he came upon two such trucks. One was facing him and the other, tail to tail to it, was facing in the opposite direction, that is, in the direction which he was walking. There was a considerable amount of noise and general activity as it was change of shift. The plaintiff said that it was usual for employees to wear issued earplugs and he was doing so. 9. As he walked past the trucks, which were parked adjacent to a workshop area, he did so by remaining close to the righthand wall of the drive. The north-westerly facing truck, that which was owned by Eltin and driven by Obst, was parked close to the lefthand wall of the drive. Thus, the plaintiff had something in the vicinity of two metres of drive to the right of that truck in which to walk. He said in evidence that he walked under the pipes as best he could, as was the usual practice required for safety reasons. The pipes were lower than the roof of the truck and so trucks were required to travel on the other side of the drive, thereby remaining away from pipes and any other overhead duct work. 10. The plaintiff said that as he walked along the fluorescent lights which were attached to the roof of the drive were not working because of renovations being conducted in the workshop area. Mr. Southon said that when he came to the area later in the evening the lights were working. Mr. Hall, the mine superintendent at the time, acknowledged that sometimes the lights did not work when certain types of work was being undertaken. In any event, for reasons which will appear, in my view nothing turns on whether the lights were on or not. When the plaintiff walked past Eltin's truck he was unable to say whether its engine was running or not. This was notwithstanding his answer to an interrogatory which was tendered. He said that he passed the truck and when he was about 15 or 20 yards in front of it he noticed that its lights came on because the drive became illuminated. He was wearing a miner's helmet with the light on the helmet burning. He said that he assumed the truck was started when the lights came on. When that occurred he turned and looked towards the truck, looked back, and kept on walking. His turn to the truck was a momentary thing and almost an automatic reaction to the lights coming on. The plaintiff said in cross-examination that with the lights on and the noise he knew that the truck was moving. Notwithstanding that, he continued walking adjacent to the wall on his righthand side about an arms length away from the wall. There is no evidence to enable any finding to be made as to whether the truck had its lights on high or low beam, although the evidence does establish that even were they on low beam they would have illuminated the whole of the drive, floor, walls and roof for a distance that was at least as far ahead of the truck as the plaintiff placed himself when he became aware of the lights coming on. 11. He kept on walking. As he did so he knew that to his left and a little way ahead was a fuel bay into which trucks turned sharply to refuel. He had assumed that this truck was to go into that fuel bay because it was the commencement of the shift and, further, his drilling rig which was located further down the drive was in a position so as to prevent access to vehicles past it at that time. Notwithstanding that he knew the truck was moving and that he assumed that it was going into the fuel bay he did not look back again. He continued to walk and the next thing he knew he was struck at about the left shoulder by the lugs on the front righthand wheel of the truck. The wheels of the truck protrude about a half a metre beyond each side of the truck. The plaintiff said that he was not then knocked down but rather pushed along by the wheel in a sort of running/skipping motion. The truck had obviously veered to its right from the position in which it was when he walked past it because he had maintained his close distance to the righthand wall and was walking in that line when struck. The truck then turned sharply to the left to enter the fuel bay and as the wheel turned the plaintiff was thrown forward and into the wall of the drive. As he picked himself up his coat or overalls were hooked by the leading edge of the tray of the truck and he was again picked up and thrown into the wall of the drive. He was, not surprisingly, quite shaken. His back was sore. He was shocked. By this time the truck had pulled up at the refuelling point. He walked over and spoke to the driver, whom he recognised but did not know. He accused the driver of having hit him. The driver denied it. There was no further conversation. The plaintiff then went to his worksite and reported what had occurred to his driller. He hung his coat there where it was subsequently found by Mr. Southon, who identified the tyre lug marks on it. The plaintiff was too shaken to work. It was necessary for him to go to the toilet. He had, as he said, "made a mess of (himself)". 12. After he had been to the toilet he met Mr. Southon and told him what had occurred. Mr. Southon took brief details from the plaintiff and then arranged for him to be taken to the surface and examined by the medical staff. When the plaintiff was examined by the doctor his back was sore and he was in shock. The accident report tendered in evidence shows that the injury was identified as being to the righthand side of his lower back. He was given a medical certificate for four days absence by the site doctor. He went back to his room in the single quarters where Mrs. Higgins had been with him for the past several days. The children, who were at this time of school age, were being cared for in Cowell by the plaintiff's mother. 13. Mr. Obst gave evidence that he started the truck and moved off and knew nothing of this incident at all until spoken to by the plaintiff whilst he was alighting from the truck in the fuel bay. He denied that the plaintiff was in front of him at a distance of 15 or 20 yards at the time the truck moved off. The speed of the truck was walking pace or slightly faster. 14. It was the defendants' case that at the time the truck moved the plaintiff was in fact walking alongside it and he continued to walk in that manner as the truck moved along the drive. This was acknowledged to be in direct breach of the safety requirement that pedestrians at all times give way to vehicular traffic. It was referred to in the evidence as the larger the vehicle the greater the right of way. Both Mr. Eriksen, of counsel for the first defendant, and Mr. Muecke, of counsel for the second defendant, suggested that this was the most likely scenario from the evidence and that therefore the plaintiff had shown a startling disregard for his own safety and was entirely responsible for the consequences of being struck by the truck. 15. That is not a submission which I am able to accept. I agree with Mr. Humphries, of counsel for the plaintiff, that acceptance of that submission would require that the plaintiff continued to walk with the truck as the distance between the righthand side of the truck and the wall to the plaintiff's right narrowed as the truck both moved along and moved out to the right so as to facilitate the sharp lefthand turn into the fuel bay. Such a finding would offend commonsense. I am not able to accept that that is what occurred. I find that the accident occurred in the manner described by the plaintiff. He was a good and forthright witness as was, except as to matters of social security, Mrs. Higgins. 16. As to the events which occurred at Roxby Downs on this evening, and subsequently, I accept them and prefer their evidence to the evidence to the contrary. Consequently, I find that the plaintiff was in front of the truck when the lights came on. He was there to be seen notwithstanding the fact that his reflective strip was covered, which I am satisfied was a general practice in the mine and one which the first defendant allowed to continue notwithstanding that there was then no reflective strip to be seen on the rear of its employees. Plainly, if it was as cold as the plaintiff has said, general safety considerations required that jackets with reflective strips be provided as part of working clothes. 17. At the time Mr. Obst had been driving trucks underground for only a very short period of time. He continued to drive after this incident but only drove, in total, for a period of three weeks when, for no fault of his, he was terminated, the contract of his employers with OPD having ceased. Mr. Obst had been trained and was familiar with the method of operation of the truck and had undergone the usual induction course for safety and other mine procedures. He was instructed as to the manner of driving the truck by an employee of Eltin and as to safety matters and general underground behaviour by employees of the first defendant. His failure to see the plaintiff once the truck was moving and its lights were on was negligent. Having regard to the brightness of the truck's lights, the fact that the plaintiff's helmet light was illuminated, coupled with his turn being only momentary, is without any real significance. It is clear from the evidence of the experts that once the truck lights were on there was very good visibility, the only difference between whether they were on high or low beam being the length of drive which was illuminated. 18. The plaintiff's failure to pay more attention to the truck once he knew it was running and moving when its lights were on has contributed to this accident. He knew that the truck would not go further than the turn left to the fuel bay, a short distance ahead of where he was, because of the location of his drill further down the drive. He knew that it was a sharp turn into the fuel bay and that the truck would need to use all of the drive to make that turn. He must have known, therefore, that the truck would come across the drive close to where he was as it came to the point of commencing the lefthand turn. Yet he made no effort to either quicken his pace or look to ensure that he was well away from the truck. This was an obligation which he owed to himself. As he acknowledged in his evidence, had he looked and seen the danger coming he could readily have run a very short distance past the entrance to the fuel area and been quite safe. His failure to look, appreciate the danger and extricate himself from it is in my view a significant contributing cause to what followed. Despite that, however, greater responsibility rested upon the truck driver to ensure that the way ahead was clear. This is particularly so when one considers the degree of illumination that must have been in the drive, the distance to be covered by the truck, its speed and the course which it was to take. Put simply, the plaintiff was there to be seen and Obst failed to see him when he should have. As between the plaintiff and Eltin, Obst's employer, liability should be apportioned 30:70 against the second defendant. 19. Of course the first defendant, or Olympic Dam Producers (ODP), they having been referred to interchangeably in the course of the evidence, had a non-delegable duty to provide a safe system of work: Kondis v. The State Transport Authority 55 ALR 225. In my view it failed to discharge that duty totally by acquiescing in the practice of its employees wearing clothing which covered the reflective strips on the employer provided overalls designed to facilitate employee safety. This failure by the first defendant has contributed to the failure of Obst to see the plaintiff by allowing him to make himself more difficult to see. 20. This, in my view, was the only failure of the first defendant in so far as the provision of a safe system of work is concerned. I am not able to find there was a well known and accepted practice or a safety direction that pedestrians were required to walk past trucks on the side of the operator. In this case, in any event, it is likely from the evidence that the truck was parked too close to the lefthand wall to enable that to be done, bearing in mind that the cabin of the truck is reached by climbing up a ladder across the front of the truck. There were no signs directing pedestrians to walk on any particular side of this drive. The plaintiff was following the accepted and required safety practice of walking under the pipes. Whether or not the fluorescent light was on is of no consequence. Once the truck lights became illuminated their strength rendered any other static lighting unnecessary for the time that they were in the vicinity. 21. The second defendant was the general employer of Obst and the owner of the truck which he was driving at the relevant time. It was also the employer of the person who instructed Obst in the manner of driving the truck prior to him commencing as a sole operator. Pursuant to a contract between ODP, being the first defendant for present purposes, and the second defendant, the second defendant as contractor provided vehicles and operators to the first defendant. The contractor, the second defendant, was responsible pursuant to the terms of the contract for maintaining those vehicles in good working order and condition. Thus, it was the second defendant which was responsible for servicing its machines and ensuring that its operators were familiar with all necessary checks to be made to keep the vehicle running. The contractor paid Obst and was responsible for all other entitlements such as annual leave, long service leave and worker's compensation in addition the accommodation and messing accounts of its employees. 22. As general employer the second defendant carries the burden of proof to shift the prima facie responsibility for the negligence of its servant Obst "so that this burden in a particular case may come to rest on the hirer who for the time being has the advantage of the service rendered": 23. Viscount Simon Mersey Docks and Harbour Board v. Coggins and Griffiths (Liverpool) Ltd. and McFarlane (1946) 2 All ER 345 at 348. Viscount Simon continued: "And, in my opinion, this burden is a heavy one and can only be discharged in quite exceptional circumstances." 24. It was this burden which Mr. Muecke sought to discharge and pass to the first defendant in a variety of ways. 25. Firstly, he relied upon the contract as between the parties as evidencing the first defendant's superior position vis-a-vis the behaviour of Obst underground. However, as Lord Simonds said in Coggins' case at p.353" "Prima facie, the contract between the appellants and respondents is not evidence against the plaintiff in determining the liability of either of them to him ..." 26. In that case, like this, there was machinery and its driver hired to work as directed by the hirer. There was a contract between the hirer and the machinery owner which went so far as to say "the drivers so provided shall be the servants of the applicants". That is a situation not dissimilar to this case. And yet the House of Lords clearly held, albeit as obiter, that the contract did no more than determine the inter parte rights of the provider and the hirer. As Lord Uthwatt said at p.354 of Coggins in relation to that contractual provision:

    "There is no evidence that the workman agreed to this provision or
    was, indeed, aware of it. Without his consent he could not be
    made the servant of the company. In light of the surrounding
    circumstances it is impossible to construe the provision as
    authorising the company to direct the manner in which the workman
    should do his work and for the purpose in hand I read the
    provision merely as stating what the board and the company agreed
    should be the legal result of an arrangement the operative terms
    of which are to be found elsewhere. Their agreement on a matter
    of law is immaterial." 27. In my opinion that is the situation in this case. Plainly, from the evidence of Mr. Obst and Mr. Bowen, his superior, they each considered that at all times Obst was the employee of Eltin. He was rostered, paid, ultimately disciplined and retrenched by Eltin. 28. Mr. Muecke's submission that the evidence discloses that the control which ODP had over Obst and his truck effectively discharged the burden of proof which the second defendant had, in my respectful view, seeks to elevate the particular circumstances surrounding this hiring to a level which they cannot achieve. Not unnaturally, one might expect greater intervention by a hirer running an underground mine. The principal objective of intervention is to ensure at all times that all persons working underground were aware of what was required for safety purposes. If the mine was safe and there was an acknowledged system in operation then the method of production would be more certain as would the mine output. The need to instruct all persons who were to work underground by way of induction classes and the need to give them direction underground both in relation to matters of safety, which may include some elements of discipline, and as to the actual work to be done on any particular shift do not combine to discharge the onus of proof. As Lord Uthwatt said at p.355 of Coggins: "The proper test is whether or not the hirer had authority to control the manner of execution of the act in question." 29. The words of Lord Uthwatt at p.353 are apposite:
    "The circumstance that it is the hirer who alone is entitled to
    direct the particular work from time to time to be done by the
    workman in the course of the hiring is clearly not sufficient for
    that purpose. The hirer's powers in this regard are directed
    merely to control of the job and the part the workman is to play
    in it, not to control of the workman, and the workman in carrying
    out the behests of the hirer as to what is to be done is not doing
    more than implementing the general employer's bargain with the
    hirer and his own obligations as a servant of his general
    employer." 30. At p.351 Lord Porter said:
    "... I think that the most satisfactory (test) by which to
    ascertain who is the employer at any particular time is to ask who
    is entitled to tell the employee the way in which he is to do the
    work upon which he is engaged. If someone other than his general
    employer is authorised to do this, he will, as a rule, be the
    person liable for the employee's negligence. But it is not enough
    that the task to be performed should be under his control, he must
    also control the method of performing it... Where a man driving a
    mechanical device, such as a crane, is sent to perform a task, it
    is easier to infer that the general employer continues to control
    the method of performance since it is his crane and the driver
    remains responsible to him for its safe keeping." 31. As Lord Macmillan said at p.349:
    "... The (hirers) were entitled to tell him (the driver) where to
    go, what parcels to lift, and where to take them, i.e., they could
    direct him as to what they wanted him to do, but they had no
    authority to tell him how he was to handle the crane in doing his
    work... It was not in consequence of any order of the (hirers)
    that he negligently ran down the plaintiff. It was in consequence
    of his negligence in driving the crane, that is to say, in
    performing the work which he was employed by the (general
    employer) to do." 32. In my opinion the case at Bar is on all fours with Coggin's case and the second defendant's attempts to discharge the onus of proof must fail, as they did there, particularly when it is appreciated that in a very large measure the factor upon which it seeks to rely in this case is the greater than usual emphasis and intervention in safety related matters because of the peculiar physical circumstances in which the contract was to be performed. It is not sufficient that the shift supervisor directed Obst as to what to do with his truck and where to drop off what he was carrying or that he was able to reprimand him for speeding or for otherwise breaching underground rules. At the end of the day it was the general employer who was responsible for Obst in the true sense of an employee responsibility and it was Obst who was fulfilling his obligations to his employer in driving and maintaining the truck as he had been so instructed by that employer. 33. In considering the question of driving Lord Simon said at p.348 of Coggin's case:
    "I would prefer to make the test turn on where the authority lies
    to direct, or to delegate to, the workman, the manner in which the
    vehicle is driven. It is this authority which determines who is
    the workman's superior. In the ordinary case, the general
    employers exercise this authority by delegating to their workman
    discretion in method of driving..." So it is here. The mistake made by Obst in failing to keep a proper lookout was a mistake with which the first defendant was uninvolved. 34. Mr. Muecke sought to gain support from the decision of Chief Justice Jordan in McDonald v. The Commonwealth 46 State Reports (NSW) 129. That decision was prior to the decision of the House of Lords in Coggins' case and was a different factual situation. There a truck and driver was hired to the Commonwealth by the general employer and it was agreed that the Commonwealth would take control of it. The general employer did not know the general nature of the work which the truck was to do or where it was to be done at any point in time. The principles set out at p.132 by the learned Chief Justice and upon which Mr. Muecke relies are in my view to be read in the light of both Coggins' case and the High Court decision in Kondis which approved Coggins. The difference between the two factual situations is further apparent from the judgment at p.133 where the learned Chief Justice says:
    "The lorry and driver were not hired to do a particular job, or
    even a particular class of work, in relation to the manner of
    doing which (the driver) was entitled to exercise an unfettered
    discretion subject only to his duty to his general employer).
    They were both made over to the Commonwealth by the general
    employer, who did not even know where the general nature of the
    work to be done or where it was to be done, and they were in fact
    used under the instructions of a Commonwealth foreman for any
    purpose that arose incidental to the work that that foreman was
    carrying out." 35. On that basis the decision in that case that the general employer had discharged the onus of proof is not analogous to this case. Thus, it is the second defendant which retains vicarious liability for the negligent acts of its employee Obst subject only to the apportionment of responsibility pursuant to the provisions of Section 26 of the Wrongs Act, 1936 consequent upon my earlier finding that the first defendant had, in one regard, failed to provide a safe system of work underground. Such failure by the first defendant should be reflected on apportionment of responsibility as between the defendants of 70/30 against the second defendant, i.e. the first defendant is responsible for 30% of the damages to be paid to the plaintiff. 36. I turn then to the question of damages. Both Mr. Eriksen and Mr. Muecke placed considerable weight upon the submission that to be drawn from the evidence was the conclusion that the plaintiff had, prior to this accident, determined to terminate his employment with the first defendant for reasons personal to himself. That reason was that he had lost his driver's licence for a period of time and it was difficult for him to journey to and from Cowell in the manner that I have earlier described. 37. In late August the plaintiff had discussed this difficulty with Mr. Clarke, his drilling supervisor, and had indicated that because of his inability to drive and therefore his inability to return home on days off he would resign, notwithstanding that he had no other job in Cowell, apart from fishing, and that it was likely that he would be on the dole. Mr. Clarke indicated that he did not want the plaintiff to resign. He was well regarded and a good workman. He suggested that the plaintiff bring Mrs. Higgins to Roxby Downs and that they look at available accommodation and that he, Clarke, would then speak on behalf of the plaintiff to the personnel department with a view to him obtaining married quarters. 38. Thereafter, Mrs. Higgins came to Roxby Downs and had been there for some few days before the accident. She said that she was looking at houses. No evidence was led to contradict her. Even though no approach had been made to Mr. Clarke to indicate that she was doing so. He found out that she was at Roxby Downs when he visited the plaintiff in his single quarters at about 7.00 p.m. on the day of the accident. He had heard about the accident in the course of the day and came to speak to the plaintiff, after having spoken to the medical staff, with a view to persuading him to return to work on light duties until he was recovered. Mr. Clarke said that he did not know at that time that the plaintiff was in possession of a medical certificate allowing him four days sick leave. He was keen to have the plaintiff attend for light duties, even if it meant sitting doing nothing, so as to preserve the work safety record. Clearly he discussed with the plaintiff and Mrs. Higgins his desire to have the plaintiff return to work on 10 September, 1987 and undertake those light duties. 39. There is a conflict between the evidence of Mr. Clarke and that of the plaintiff and Mrs. Higgins as to precisely how the arrangement was left. Mr. Clarke expected the plaintiff to appear. Both the plaintiff and Mrs. Higgins said in evidence that the arrangement was that the plaintiff would come to work "if he felt up to it" and that there was no firm commitment. 40. On that day, 10 September, 1987 the plaintiff did not feel up to attending work and was driven to Cowell by Mrs. Higgins. There he saw his local doctor. He was immediately referred to a specialist in Whyalla and thereupon admitted to hospital where an operative procedure was performed to evacuate the injury to his back. To overcome any doubt which may have been created in the course of the trial, I find that the admission to hospital was as a direct consequence of the injury which had been received on 9 September, 1987. Mrs. Higgins said that after the operation she telephoned Mr. Clarke to tell him that the plaintiff was in hospital and that he would not be at work. I accept her evidence in that regard. The plaintiff was in hospital for four or five days and then went to Cowell. All did not go well and he was required to return to hospital for a further operation and was again in the Whyalla Hospital for four or five days. During that time he received a telegram from the first defendant informing him that his services had been terminated because of his absence without leave. Mr. Clarke acknowledged that he had been spoken to on Saturday, 12 September, 1987 by Mrs. Higgins but seems not to have conveyed the information which he obtained from her so as to enable the plaintiff's records to reflect the real position. No doubt had he done so a telegram in those terms would not have been forthcoming. In any event it was, and the plaintiff was in hospital for the second occasion in Whyalla and without employment. Thereafter, he returned to the Cowell Hospital and then to his home. 41. After these events Mr. Clarke had cause to reflect upon what he had seen when he visited the plaintiff and Mrs. Higgins on the evening of 9 September, 1987. At that time he had seen Mrs. Higgins packing up the plaintiff's possessions with a view to returning to Cowell. There is no doubt that the room was effectively emptied. He took things back that he did not usually take and he sold his refrigerator. He gave the key to his room to the camp manager. These things, suggested the defendants, are indicative of a man who has made up his mind to go and not return. Not so, said the plaintiff. The key was returned because it was necessary to do so each time the quarters were vacated so as to avoid being charged for the use thereof. This evidence was not contradicted. The refrigerator was sold to a person who had wanted it for sometime. It had been the plaintiff's intention so to do as it was not really needed by him and the room was cleaned by his wife without any known ulterior motive. These explanations I accept and I am not prepared to draw the inference sought for by the defendants. That inference has been developed as a result of hindsight and sits uneasily with Mr. Clarke's failure to convey to the appropriate members of the first defendant the substance of Mrs. Higgins' message to him on Saturday, 12 September, 1987 or to have knowledge of the plaintiff's medical certificate when he initially spoke to him after the accident. 42. This was not a job like the other interim employments away from fishing which the plaintiff undertaken. Never before had he worked away from fishing for such a lengthy period of time, almost seven months. Never before had he worked in a job which provided him with training, the prospects of promotion, and a good wage. I accept the plaintiff's evidence that he intended to stay in this work and I am satisfied that the family had decided to move to Roxby Downs notwithstanding that there may have been some interim difficulties with Mrs. Higgins children's schooling. 43. What then of the plaintiff's injuries? The injuries sustained by the plaintiff have been referred to in part. When struck he received an injury to his back and upper right buttock. He was in shock and vomited. The doctor gave him some pain relief. From Roxby Downs he was driven to Cowell by Mrs. Higgins and his doctor sent him to Whyalla, where he was operated upon immediately to drain his back. He was there for four or five days. He returned to Cowell but the stitches in his wound broke and it haemorraged. He returned to the Whyalla Hospital for five days for a further operation and then spent a few days in the Cowell Hospital until discharged home. 44. When he returned home he was in pain when he moved. It was twelve months before he was stable. During that time he had pain in the pelvis and right hip area and pins and needles in his feet. His back ached at all times. The pain felt upon discharge from hospital gradually reduced over the twelve month period. 45. Presently he still has daily pain in the lower mid back and right hip/buttock area at about belt level. This is always present and is made worse by walking or any other activity. The general area is sore to touch. Walking makes his feet sore and hot and upon stopping he has pins and needles in the feet and both legs with the right being worse. Consequently he is no longer able to engage in fishing or other activities, such as walking in the hills outside Cowell and hunting. 46. The plaintiff's personal relationship with Mrs. Higgins has changed. They now have separate rooms and have had since soon after he returned from hospital. This is because of his inability to sleep through the night because of a constant need to turn over to relieve discomfort. Consequently, their sexual relationship has deteriorated significantly. 47. The plaintiff's present and future medical condition is to be determined by considering his evidence and that of the medical experts who have given evidence or who have had reports tendered. 48. The plaintiff has been treated since July 1988 by Dr. North, neurosurgeon. He was referred by his local general practitioner after pain on the right side worsened. A CAT scan and myelogram revealed a disc prolapse at the L4-5 level on the right. A further scan ordered by Mr. Jose in 1992 revealed that this had not worsened over the years. Mr. Jose suggests manipulation under general anaesthetic together with anti-inflammatory medication and exercise. In that circumstance he sees the plaintiff as being able to manage light to medium work. 49. Mr. Schaeffer examined the plaintiff for the first defendant in 1989 and 1992. He did not change his initial opinion that there was no evidence of "a continuing back condition of an incapacitating nature". He thought that the plaintiff could return to work as a driller's assistant or a fisherman. He thought the plaintiff to be "over concerned" about his back. 50. Neither Mr. North nor Mr. Jose shared this view. Neither do I. Both Mr. North and Mr. Jose recognised the plaintiff's condition. Mr. Jose did not give evidence. Mr. North said the plaintiff could not do heavy work in which he included fishing. He could not go back to his Roxby Downs task as that was heavy work. In evidence Mr. North put the extent of the plaintiff's residual disability of total body function to be less than the 25 per cent given in his reports as the physical signs upon recent examination of the plaintiff are fewer than when he produced the reports. Without fixing a percentage disability he was quite firm in his opinion that the plaintiff could no longer undertake heavy work. I accept his opinion of the plaintiff's present status and future limitations. The injury at L4-5 is an asymptomic degenerative condition becoming symptomatic. I find that it occurred as a consequence of the accident. The pain the plaintiff suffers in his back and legs has a close temporal relationship to the incident. Thus, the plaintiff now has a significant total body function disability and is unable to do other than light to medium work. 51. The plaintiff has suffered pain of varying intensity continuously since September 1987. Since then his personal and family life has been dislocated and will remain so for some time into the future. He now leads a much restricted life and that will continue. I assess his damages for pain and suffering and the loss of the enjoyment of the ordinary amenities of life for the past and future at $45,000. This is to be apportioned $15,000 as to the past and $30,000 as to the future. 52. His past economic loss is to be calculated by reference to the figures contained within the consolidated interrogatories and answers, the exhibit P9, allowing broadly for unexpected absences for illness and the like over the period of approximately five and three-quarter years from the accident to trial. In this regard I allow the sum of $150,000. It follows from what has gone before that I am satisfied to find that the plaintiff would have remained in employment at Roxby Downs for the period for which the calculation has been made. 53. Indeed, in my opinion, he would have stayed much longer and likely been promoted. Mr. Humphries suggested that the plaintiff may have had many jobs in his working life after Roxby. I am doubtful of this. He is, as was apparent, close to the sea. I think it unlikely that he would have surrendered his fishing licence in the future (unless legislatively compelled so to do) or have moved from where he spent his life. 54. Thus, this employment was such as to give him the best of both worlds. He had secure employment with prospects of a good and no doubt naturally increasing salary but a few hours drive from the sea town where he had lived his whole life and had family and friends. 55. Of course, in assessing his future economic loss allowance must be made for contingencies good and bad across the whole spectrum. I think it unlikely that with his background he would work past 60 years of age. It is not simply a matter of applying the multiplier of 743 to the appropriate wage and allowing for those contingencies. As was recognised in the addresses this assessment of damages is much less certain than that and must allow for the possibility of what was referred to as "the call of the sea" having an effect upon the plaintiff's lifestyle much earlier than 6     0 years in addition to the usual contingencies. Were he to return to fishing on the odd day as was allowed in the medical evidence he would subsist only. Notwithstanding that fact, such a change in economic circumstances cannot be ruled out and must be put on the scales. Adopting a global approach I assess the plaintiff's future economic loss at $200,000. 56. No claim for future medicals is made. In summary, therefore, the plaintiff's damages are: Pain and suffering - Past $ 15,000.00 - Future $ 30,000.00 Past economic loss $150,000.00 Future economic loss $200,000.00 $395,000.00 From this is to be deducted the sum of $118,500 on account of the plaintiff's contributory negligence, leaving a figure of $276,500. 57. I shall hear counsel on the question of interest, costs and the terms of the judgment.