Tanner v Wise & Thiele No. DCCIV-93-2925, DCCIV-95-295 Judgment No. D3561

[1997] SADC 3561

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Bright

Hearing

12/11/96 to 21/11/96, 06/01/97, 13/01/97.

Catchwords

44 year old male - labourer.Two rear end motor vehicle accidents. First - injury to both knees, head and shoulders.Second - soft tissue injury to lower lumbar spine.Non economic loss $11,790, past special damages $6,623.70, future special damages $1,000, past loss earnings $40,000, interest on past loss earnings $125, future loss of earning capacity $100,000, gratuitous services $1,500 - Total for first accident $161,038.70.Total for second accident $2,860; 39 year old male labourer; Wrongs Act scale 9; Past economic loss $40,000.00; Future economic loss $100,000.00; Non-economic loss $11,790.00; Past special loss $6,623.70; Future special loss $1,000.00; Interest $125.00; Total assessment $161,038.70

Representation

Plaintiff CLIVE MARTIN TANNER:
Counsel: MR. M. BIRCHALL - Solicitors: PETER MARKER &; ASSOCIATES

Plaintiff CLIVE MARTIN TANNER:
Counsel: MR. M. BIRCHALL - Solicitors: PETER MARKER &; ASSOCIATES

Defendant CHRISTA THIELE:
Counsel: MR. B. KRUPKA - Solicitors: FINLAYSONS

Defendant TIM WISE:
Counsel: MR. B. KRUPKA - Solicitors: FINLAYSONS

DCCIV-93-2925, DCCIV-95-295

Judgment No. D3561

14 February 1997

(Civil)

TANNERVWISE & THIELE

Civil

Judge Bright

This is an assessment of the damages suffered by Mr. Tanner (the plaintiff) as a result of two motor vehicle accidents.Essentially, he suffered injuries to his neck back and knees.The first accident occurred on 28 November, 1991 and the second on 19 August 1994.Each involved another vehicle running into the rear of a vehicle driven by the plaintiff.The first was a far more violent impact than the second.

Two sets of proceedings have been issued.Action 2925/93 deals with the first accident, and action 295/95 deals with the second.Both actions were heard together, with evidence in one available as evidence in the other.They have not been consolidated.For reasons that will later appear, it is necessary to make separate assessments of the consequences of each accident. First I shall, in one narrative, make findings in relation to both.

The plaintiff was born in Englandon 23 May 1952.At trial, he was 44 years old.He came to Australia in 1963, with his parents, his sister and three brothers.He was educated to the age of 15, by which time he was part way through first year at high school.

He suffers a condition called ptsosis in his eyelids.They droop.It is hard for him to hold his eyes open properly.He also suffers from short sight, and has worn spectacles since he was three.Repeated surgery has not cured his ptsosis.

He did not do well at school.He left barely able to read or write.It may be that his poor eyesight led him not to try at school.There may be other factors.His presentation in court, and the informal assessments of psychiatrists who gave evidence,suggest that his intelligence is within the average range.I note that, in recent years, he has had further education at Elizabeth TAFE and now reads and writes rather better.For example, since his accident he has made copious notes.He was, albeit slowly, able to read them in order to give evidence.

In any event, on leaving school he was not qualified for anything other than unskilled labour.He worked in a car radiator repair shop for about six months.His real desire was to work on a farm, preferably with horses.He took work at a horse stud operated by the Crabb family.At various times, he left that employment.It was a job he always came back to and in which he was working at the time of the subject accidents.A group of properties in the Smithfield/Lower Light area were operated together.The stud was eventually closed in February 1995.

The other jobs he took included production line work at a chicken processor, roof frame erection, dairy and pig farming, hay carting, grinding glass at a glass factory, and repairing wine barrels.He travelled and worked in Queensland.He had no significant periods out of work.His last stint with the Crabbs began in 1990.

His health was generally good.He had suffered a ganglion in his right wrist, which was removed surgically.He found that hard, repetitive work - such as using a pick on hard ground - caused pain, but it had little effect on his activities.Once he was off work for a couple of days with a sore back. Otherwise there is little in his pre accident background.

On the stud he did most things that needed to be done.He could oil, grease and maintain farm machinery.He did building and fencing.He set up a great deal of electric fencing and was the resident expert on that subject.He cut hay - and operated all the farm machinery.He sprayed for weeds, he ploughed, seeded and slashed.

He worked with horses extensively.Obviously, being a stud, that involved the heavy, sometimes dangerous, work associated with stallions serving mares.All horse work calls for alertness and agility.He was involved in breaking in the foals.He routinely moved and stacked bags of horse feed weighing 40 kgs.

In short, he was fit and strong.He was a hard worker.He was trusted to organise himself and did not require constant detailed supervision.He liked his work.He liked working outside.

The first accident occurred on a straight, open, stretch of country road. The plaintiff was driving a Toyota Landcruiser traytop, a fairly heavy vehicle. He had slowed almost to a stop, intending to make a turn into a road on his right.He began to turn.He recalls a glimpse in his mirror of a vehicle approaching from the rear, apparently with its wheels locked, as smoke was being generated.He heard nothing.He thinks he tried to accelerate out of theway.The other vehicle was a Ford Falcon Station wagon, also a substantial vehicle.There was a heavy impact.

The plaintiff's vehicle was sharply propelled around to the right and, as it turned, it rolled over to the left, finishing on its roof.The plaintiff describes feeling "like being in a washing machine".He felt that the vehicle had rolled several times, before coming to rest, but accepts that this impression is not correct and that it made only a half turn onto its roof.

I do not doubt that the plaintiff was thrown around violently.He was wearing a seat belt.While that may well have prevented worse injuries, it probably held some parts of his body firmly, while others were flung about. It is entirely credible that he may have bumped his head and shoulders, perhaps on the driver's door, and that his knees may have bumped the underside of the dashboard, or the steering column.He was shocked, but did not lose consciousness.

He was able to extricate himself from the vehicle.He recalls pain in the back of his bead, as if it had received a violent blow.He was taken away by ambulance.He reported a tingling sensation in his feet.That led to a neurological check and spinal X-rays when he got to hospital.That symptom improved rapidly.No significant abnormality was detected and he was sent home.

He was given a certificate to be off work for two days.He visited his local general practitioner, Dr. Chiu, who prescribed a further week off.He felt sore all over during that period.He returned to work on 9 December 1991, having been off for ten days.He was still sore and slow.

Probably the major point in contention between the parties is whether he sustained injury to his knees.That has been his main complaint.The plaintiff recalls bruising and swelling soon after the accident.He says that there has been swelling ever since.No one else records seeing bruising. Some doctors have noted swelling.Others did not.Dr. Chiu's notes record frequent visits by the plaintiff.Dr. Chiu frequently noted swelling.

In March 1992 he was referred to Mr. R. Atkinson, an orthopaedic surgeon with a particular interest in knees.No major pathology was detected on clinical examination.However, it was decided to arthroscope both knees to try to diagnose the problem better.Mr. Atkinson thought it probable that the knees had been struck while flexed and that "contusion" was the likely abnornmality.

The arthroscopies were performed in April.The right knee showed mild articular surface changes to the femoral condyle.The left knee showed quite a significant defect, of apparently recent origin, to the femoral condyle and also changes of a minor degree to the odd facet of the patella (which is a fatty pad at the base of the patella). Knee surgeons use a gradation from 0 to 4 to describe articular damage, with 0 being normal and 4 being a defect penetrating through to bone.Both knees were graded at 2.

No one challenges those findings.That damage is permanent.I cannot exclude the possibility that symptom free degeneration preceded the accident, but certain features, particularly in the left knee, suggest that it was of recent origin.I accept the evidence of various doctors that the accident was at least the principal cause of the damage detected.

At arthroscopy, some limited trimming and smoothing of the joint surfaces was carried out.There was a marked improvement, for a few months, in the left knee.The right remained sore.It has continued to be worse than the left, despite the finding at arthroscopy of more readily visualised damage to the left knee.

The plaintiff returned to work, but complained of loss of agility and of pain. He continued to get mild swelling.There was one incident where he was climbing down a fixed ladder inside a silo, the steps of which ended some distance above its floor level.He unexpectedly took a giant stride and then a fall to the floor.His right foot was on the last rung and his right knee flexed beyond its comfortable range, causing him considerable pain.

His employer, Mr. Crabb, tried to give him such lighter work as there was on the stud, but his general duties were nevertheless vigorous.Mr. Crabbsaw him limping, both when with him and also at times when it was most unlikely that the plaintiff would have realised that he was under observation.Mr. Crabb said that the plaintiff was no longer the worker he had been.He had been a good worker.

The plaintiff described a number of episodes where one or other knee would "give way", sometimes precipitating falls.The mechanism most likely to have caused this is not one involving a major mechanical problem.It is more likely to be a simple reflex response to a moment of pain, possibly aggravated by poor quadriceps tone.Measurements of the circumference of his legs at the quadriceps have varied from time to time.Sometimes there has been no detectable difference, but, on a number of occasions, various doctors detected up to 2 centimetres of wasting on the right.

Mr. Atkinson decided to have another look at the right knee.He arthroscoped it again in June 1993.There had been further degeneration.He raised his grade for the damage from 2 to 3.This is still not would commonly be regarded as major pathology, but it was significant that the condition had progressed, and progressed in a relatively short time.

While all doctors recognised the limitations of percentage estimates of disability, the view which I accept is that there is a 10 per cent disability in the right knee and 5 per cent in the left.Those levels are permanent. They may get worse.They will not improve.In accepting those figures, I do so to indicate that I accept that the detectable pathology is not gross.

I also accept the evidence that many people with such pathology are less troubled by it than the plaintiff is.That is not the whole question, though it is a factor which must cause me to look carefully at what I find the effect to be on the plaintiff.He was searchingly cross examined, but, in the end, I saw no sign of him simply being a liar, or a conscious exaggerator.In fact, on a number of occasions, both in court and in his histories to doctors, he failed to take advantage of opportunities to exaggerate.He presented as being open and with a desire to help - to the extent of being almost tedious on occasions

Mr. Crabb struck me as a man who would not have tolerated any nonsense.He was of the view that the plaintiff was genuine and that he worked under considerable difficulty.

Dr. Clayer, a psychiatrist, had the plaintiff perform a test designed to reveal any tendency to conscious exaggeration.His scores strongly indicated the contrary.Dr. Clayer was reporting to the defence and certainly had no motive to bolster the plaintiff's cause.

The plaintiff's wife gave evidence.It is an obvious comment that she is not in a good position to be completely objective.I saw no sign she was stretching the evidence.She seemed an honest, straightforward, person.What she saw of the plaintiff was consistent with his evidence.

The fact that many, even most, people would be less affected, as various doctors said, carries the corollary that some, or a few, may be.In the end, the court has to make a judgment whether, despite the infrequency, the plaintiff is one of that few.

I am satisfied that he is genuine.I believe he has told me the truth as he sees it.

A variation which I must consider is whether there is a degree of unconscious exaggeration.This is almost metaphysical.He certainly wants to be sure he is understood.He is introspective.At the request of his solicitor, he has kept extensive notes.That activity, together with his exposure to lawyers and doctors has kept his problems in the forefront of his mind. I do not accept the suggestion that diary keeping has aggravatedhis condition.As Dr. Gorton, psychiatrist, said, that activity forms part of psychotherapy which he might have administered if he had been a treating doctor.

I note that the plaintiff has adopted certain invariable descriptions of aspects of the case, repeated to each doctor and to the court.They are firmly fixed perceptions.For example, with reference to the first accident:"it was like being in a washing machine", or with reference to the effect of the second on his neck:"it felt like someone had ripped the bone out".

While these sound like colourful exaggerations to engage sympathy, they were not followed by claims of matching impairment.He acknowledged various improvements.These phrases make it hard to accept at face value their complete accuracy.Even he is aware of that - e.g. his recall of the car rolling several times coupled with his realisation that it only rolled onto the roof in fact.Though verbose, he is not articulate.I think he finds it hard to describe his problems and does not like doing so.I conclude that these repetitive descriptions simply reflect an inflexibility of thought patterns. They are not designed to deceive.

In discussing difficulties in assessing his evidence,I have digressed from the narrative.I resume.

In my view, the plaintiff's life was much bound up with his work.He is not motivated to shirk it.I am satisfied that the problems he perceived, some of which were observed by others were quite genuinely felt by him.

He has also complained of low back pain, which he attributes to the first accident.Four days after the accident he reported to Dr. Chui that he had a stiff neck, painful left and right shoulders and a "very sore lower back".He has continued to complain of low back pain, for which no clear pathological explanation has been found.The diagnosis by Mr. White, orthopaedic surgeon, of "incompletely healed sprain" is. with respect, as good as any.It is not his major problem.If it were all he had, I think he would be able to do pretty well all he ever could, though he is reaching an age where anyone ought to cut down on extremes of heavy or repetitive lifting.

The pain in neck and shoulders settled down in the ordinary course.

He was also subject to "flash back" nightmares, involving the moment of the accident.He became irritable and depressed (in a colloquial sense).Dr. Gorton diagnosed a reactive depression;Dr. Clayer a post traumatic stress disorder.Both regarded the severity of his state as relatively mild.A significant proportion of his distress was an entirely appropriate unhappiness at his physical limitations and with fears about job security.It is consistent with my view of his personality and with the psychiatric evidence that his stress level (again in a lay sense) made it harder for him to cope.

He had a degree of phobia about driving cars.He did get back to driving at once - "like getting back on a horse", but he was now a nervous driver and a worse passenger.On occasion, particularly in the vicinity of the scene of the accident, he would even pull off the road to allow vehicles approaching from the rear to overtake.He had not been like this before.

He continued at work.He continued to be given the lighter duties.He had various periods away from work.Mr. Crabb continued to see him acting as if he had problems.

Unfortunately, he was subject to the second accident on 19 August 1994.It was a rather minor rear end impact.He was stationary in a very small car/van.It sustained about $1,000 damage.Damage to the other car was also minor.The plaintiff's car was propelled forward, he says, by about two feet. It did not come in to contact with anything else.While that impact would obviously have given the plaintiff a significant jolt, it was not an impact on the scale of the first accident.

He was shocked, but able to exchange particulars and to drive home.His tension level increased.He complained of neck pain and low back pain again. He had a week off work.His phobia of driving was exacerbated, but he continued to drive.Apparently irrationally, he will not allow his wife to drive him anywhere, even though driving causes him to ache in his knees.

His neck and back have never settled down to be as good as before the second accident.He has trouble looking around to reverse a car.Neck pain sometimes leads to headaches.His nightmares, which had subsided, were stirred up again.

After a mild reproof of some sort from Mr. Crabb, he muttered that;"fortwo pins, he would top himself".He later noted this in his diary.Soon afterwards, his wife came upon the entry and got him to go to his GP, who referred him to Dr. Wurm, a psychiatrist practising near by.He was put on to an anti depressant, Zoloft, which had a rapid beneficial effect.He is still on Zoloft.If he forgets to take his tablet in the morning, he and his wife notice the difference.

Dr. Clayer, while accepting the appropriateness of that medication, makes two comments, which I accept.He is surprised that it has such a marked beneficial effect - he suspects an element of placebo effect.Second, he notes that it is quite inconsistent with the plaintiff being a malingerer that he should claim such improvement.

Once litigation is complete, it seems probable to me that the plaintiff will, over about the next year, be able to be weaned gradually off Zoloft.He will remain a little more likely to suffer depression (in a lay sense) in the future than if the two accidents had never happened.

The next important event was the closing down of the stud in February 1995. The plaintiff has not worked since.He has subsisted on WorkCover payments and on his wife's earnings as a cleaner.

In his social and domestic life he is a little restricted.He finds his knees too painful for lengthy standing, or walking, or running.He is nervous about them "giving way", though, in fact, I do not think that that is a great problem.

He does not garden as often, or as long.It was not his wont to do a lot of housework before the accidents.He still does little - but he now has a lot of time and says that he would do more if he could.Minor household projects (like painting) take an inordinate time.

I expect his psychological state to improve somewhat.Having regard to his rather rigid, insecure, personality, I do not see him becoming happy and relaxed.Such improvement may assist in the resolution of some of his aches and pains, particularly those of a more generalised kind in his spine.He may become a little more sociable.Life may be more fun.Getting the uncertainty of litigation behind him, and being able more positively to plan his future can only help.

I can see no reason to think that his knees will ever feel much better.They will greatly restrict him in working in any form of moderate to heavy manual labour, which is all his education and experience fit him for.He has taken up an hour a week of adult literacy education, which includes some training in computers.His skills in these fields are still limited.Although I suspect he could now be trained to run a cash register, or to perform low level administrative duties, I also expect that he will find it extremely hard to get jobs in those fields.For the foreseeable future, there will be many younger, fitter, better qualified, applicants for such jobs as do arise.

I think he is realistic in trying to procure light manual work, probably on a part time basis.He has, for example, tried for work as a groundsman at a school, without success.A flexible job like that, capitalising on his knowledge of farm agriculture, maintenance and general handyman work, involving being outside a good deal, is probably his best hope.

If the stud had not closed, I suspect that he would still be there, grumbling, complaining, but nevertheless, getting through a good deal of work.He would still be avoiding the heavier aspects of the work.,He would still be taking time off.Mr. Crabb would probably be a bit sick of it, but, would keep him on for old time's sake

I think the plaintiff will be very lucky indeed if he is able to find a sympathetic employer with such a flexible job again.

I attribute a Wrong's Act number of 9 to the first accident and of 2 to the second.

Payments on his behalf of special damages amounting to around $16,000 have been made by SGIC, the insurer of each defendant.I do not need to include them in this judgment.

Certain additional special damages have been paid by the WorkCover Corporation (WCC), as has periodic income maintenance.A complication in the case is that WCC accepted liability for a closed period of one week of income maintenance in respect of the second accident.That accident occurred in the course of a journey from a physiotherapist, who had given treatment in respect of injury in the first accident, and the plaintiff's home.No particular causal link between his employment, or the original trauma and the second accident was suggested.The claim was met, despite not, as far as I can see, being compensable.

WCC is only entitled to recover payments properly made.If I were to award the plaintiff the $325 paid in respect of that week's absence, he would be compensated twice.For that reason I do not make such an award.

I am asked to be careful about any award for future loss of earning capacity attributable to the second accident for the same reason.If it exists, it may become the subject of a claim against WCC, again involving double payment.In fact, I am unable to separately assess a loss of earning capacity separately attributable to the second accident.If that accident stood alone, I might have concluded that there was some such loss, albeit minor.Having regard to the effects of the first accident, it seems to me that the factors which would have led to such an award were already present before the second accident occurred.

It is also unlikely that WCC would, on the facts, be likely to accept a claim for income maintenance in respect of the second accident.However, if circumstances should eventuate, which give rise to such a claim (e.g., an unexpected deterioration of his neck), that can be dealt with at that time.I make no allowance as part of this assessment.

I discern no need for a separate assessment of the value of "gratuitous services" in respect of the second accident.

I turn to the first accident.Special damages in the sum of $43 were paid by WCC prior to the second accident - and are attributable to the first.WCC thereafter paid $1,125.76.All of those expenses are at least partly attributable to the first accident.From the schedule supplied, I infer that some of the psychology and physiotherapy given would have been for problems caused by the second accident.As such, it cannot be recovered by WCC.At the same time, it has not been an expense to the plaintiff and is not recoverable by him.I cannot assess the amount with any precision.Taking a broad axe, I round down the entitlement to special damages attributable to the fist accident which have been paid by WCC and are recoverable to $900.As I have not heard from WCC, my finding cannot bind it - but it is my best effort to avoid over compensating the plaintiff in this assessment.In addition, there are unpaid special damages attributable to the first accident, which are agreed in the amount of $5,680.70.Thus there is a total of $6,623.70 for special damages which have not been paid by SGIC.

Assessment of past lost earnings is complicated by several factors.After the first accident, Mr. Crabb suggested to the plaintiff that,rather than claiming on WCC, and as SGIC was obviously liable, they wait and claim against SGIC.Mr. Crabb would, in the meantime, make up any lost pay and expenses. After a while it became apparent that the plaintiff's claim would not be resolvable in the short term and a proper claim for compensation was made. WCC accepted it from that time on.Mr. Crabb remains out of pocket for the amount he covered before then.

Section 119 of the Workers Rehabilitation and Compensation Act (the Act) deals with contracts to avoid the Act.It is in the following terms:-

119.(1) Any agreement or arrangement entered into without the consent of the Corporation that purports to exclude, modify or restrict the operation of this Act is to that extent void and of no effect.

(2)Any purported waiver of a right conferred by or under this Act is void and or no effect.

(3)Any person -

(a)who enters into any agreement or arrangement with the intent either directly or indirectly to defeat, evade, or prevent the operation of this Act; or

(b)attempts to induce a person to waive a right or benefit conferred by or under this Act,

is guilty of an offence.

Penalty: $5,000 or imprisonment for one year."

It is argued that the arrangement not to claim against WCC (having been made without its consent) is void and of no effect.Accordingly, it is argued, there can be no basis on which Mr. Crabb can be entitled to recover his payments to the plaintiff.Therefore, to award the plaintiff lost earnings which have been covered by Mr. Crabb would be to award double compensation. It is argued that the arrangement is, specifically, by subsections (1) and (2), void and of no effect.By subsection 3 it is an offence - so the cases on arrangements void for illegality apply.

Ingenious as this is, I reject the argument.Subsection (1) does not make an arrangement wholly void and of no effect.It does so only to the extent that it purports to exclude, modify, or restrict the operation of the Act.By subsection (2), rights under the Act cannot be waived.

In this case, there was never any intention that the plaintiff would be deprived of anything to which he was entitled under the Act.That is the mischief at which the section is directed.Although it may have been the result, it is not established that Mr. Crabb turned his mind to the fact that making, or not making, a claim might have a bearing on premiums he had to pay WCC in the following year.I think it was more a response to the "hassle" of dealing with the bureaucracy, which he hoped to avoid.He was, pending resolution of the plaintiff's claim, prepared to be out of pocket.He actually made payments exceeding $4,000.Obviously a point was reached when it became too expensive to carry that level of expenditure.

The effect of the Act was that the plaintiff was never bound not to make a claim on WCC.He could do so at anytime, as, eventually, he did.Certainly Mr. Crabb was party to delay in lodging the claim.He thought that matters could be sorted out in what seemed to him to be a simpler way.

Insofar as he arranged or agreed that a claim would not be made, or would be delayed, that was void and of no effect.But, having made payments to the plaintiff covering his entitlements, it does not follow that any arrangement, agreement, or understandingthat he would be reimbursed in due course, when things were sorted out, is void and of no effect.Such an arrangement does not exclude, modify, or restrict the operation of the Act.It does not involve an attempt to enforce a waiver of anyright.

It is possible that the arrangement not to claim at once was an offence against subsection (3), and thereby illegal.The question of the necessary mens rea, if any, for such an offence, was not fully argued.I refrain from expressing a concluded opinion.

It is sufficient to note that not every illegality renders an arrangement void in toto.Just as with the cases in tort arising "ex turpi causa" there is a policy decision to be made by a court, whether the illegality is so great that it should give rise to this consequence.Considerations of the extent to which public policy is breached by the particular illegality are important.

In my view, and in the circumstances of this case, I would not hold that the illegality created by this breach (assuming that it is a breach for this purpose) is such that I should declare every aspect of the arrangement void. I see no impropriety in Mr. Crabb recovering the money he advanced.

Apart from questions of principle, I must also look at the facts.The plaintiff is entitled to lost earnings attributable to the first accident.I must check that payments made by Mr. Crabb, for which claim is now made, in fact related to absences caused by the first accident and have been paid at appropriate rates.On the evidence I am satisfied of this.

The amount paid by Mr. Crabb was $4,313.72.It was paid at rates reflecting changes in award rates from time to time, but at award rates.It was paid as wages, with tax being deducted.It is repayable in gross.I allow it in full.

On 13 September 1993, WCC took over making payments covering loss of earnings. They too were paid and are repayable in gross.I have excluded the one week at $325.40 caused by the second accident, which cannot be recovered by WCC. The amount paid by WCC was $33,863.22.

For a period of time he was paid the wrong figure.He was underpaid by (gross) $555.37.That is not repayable and can only be claimed by the plaintiff on a nett of tax basis.His tax rate was 20% and I allow him $444.30.

Then a stage was reached (on 20 February 1995) when, by the operation of the Act, he was only entitled to, and was only paid, 80% of his average weekly earnings.He went from $325.40 per week (gross) to $242.96 per week (gross); a loss of $82.44 per week (gross), or $65.95 per week nett.As this component is not repayable to anyone else, I will allow it nett of tax.For a year, that calculates to $3,429.50.

Next I must consider payments of superannuation levy that would have been made, if he had been at work.They have not been made since the stud closed in February 1995.They would have been made at just under $9 per week.For a year, they amount to $468.

The precision of these calculations is deceptive.Because I am about to take out the broad axe, it may not matter.What I have calculated is the difference between what he would have received, if he had worked throughout the period, and the amount which he actually earned at work.

Often contingencies are ignored in calculations of past loss of earnings.In this case, a long period has elapsed and two particular contingencies must be acknowledged.First, the stud closed in February 1995.The plaintiff would have lost his job.Even with appropriate notice, would he have found another job, at least as well paid, without a break?Even allowing for an interruption, might he have covered any loss by landing a job which was better paid?Might he have lost more by getting a job at a lower rate?I can only speculate, but it is my view that it is probable that he would have suffered some loss in any event.

Second, it is possible that degeneration of his knees preceded the accident. If so, it may have caused trouble at some time before now, even without the accident.Mr. Atkinson was only able to guess that there might have been trouble within five or six years.If so, it would not bear much on past loss. The total of the various components of past loss which I have discussed is $42,518.74.I will round it down to $40,000 to allow for contingencies.

I turn to the assistance given by the plaintiff's wife.This is not a valuation of her support.It is an assessment of what he needed to have done because he could not do it for himself.It must take account of the give and take within a marriage.It is restricted by the provisions of the Wrong's Act. I assess pursuant to section 35A (1)(h) of the Act and not to subsection (2). The limit is about $2,500.I allow $1,500 for past and future gratuitous services.

I now look at future loss of earning capacity, as that will be reflected in likely loss of future earnings.His current award rate as a farm labourer would be about $325.40 (gross), or $260 per week nett.He would be entitled to have a superannuation levy of about $9 paid.The sort of process work which he might otherwise expect to perform would probably be a little better paid.I think it will suffice if I assume that, but for the accident, he would have had an earning capacity of $275 per week (nett).

He is nearly 45.The value of a $1 per week to a male of that age, at 5%, to age 65, is $627.275X$627 gives a raw figure of $172,425.

Of course, before that could be accepted as the value of his future earning capacity, but for the accident, many contingencies would have to be allowed for.The two mains ones are, again, the possible emergence of knee trouble and the uncertainties of employment for a 45 year old man with limited education in today's labour market.From any resultant figure his residual earning capacity, as reflected in likely earnings, must be deducted.He is a man still able to do a lot.He needs freedom to move around;he would not be comfortable in a fixed position.He would have trouble standing all day.He will probably be less reliable than others, in the sense that he will need time off.He will be better suited to lighter rather than heavy manual work.He will need a sympathetic boss.In the circumstances, and having regard to the state of the labour market now and in the foreseeable future, there will be great competition for the sort of work he can do from younger, fitter men.He will find it extremely hard to get jobs.

None of these contingencies can be at all accurately valued on the evidence. I hope I will do justice if I notionally deduct 20% from the raw figure to allow for the predominantly adverse contingencies that faced him in any event. That gives an estimate of earning capacity, but for the accident.I shall then assume that he will now earn about 25% of what he would otherwise have earned. $172,425 less 20% is $129, $137,940.If a further 25% is deducted from that figure a result of $103,455 is reached.I round that down to $100,000 and, subject to a matter I will deal with, assess the plaintiff's future loss of earning capacity in that figure.

I must refer to another contention arising out of the Act.In this case, the disabilities caused in the first accident were aggravated, at least to the neck and back, in the second.It is a moot point whether the effects of the second accident have totally resolved.The second accident was not compensable under the Act.Despite that, liability for one payment of income maintenance for a closed period of one week was accepted by WCC.

By section 30, a "disability" attracts compensation.By section 3, a disability includes a "secondary disability".A secondary disability means "a disability that is, or results from the aggravation, acceleration, exacerbation, deterioration, or occurrence of a prior disability."It is argued that at least part of the plaintiff's condition, after the second accident, was a secondary disability.Returning to section 30 (b), a secondary disability is only compensable if there be a causal link between employment and the disability.Again, insofar as WCC finds itself liable for future payments of income maintenance, that liability is because (so it is said) it accepted liability for a secondary disability, for which it was not liable. Accordingly, it is said, it will not be able to recover any such payments from SGIC.

At the same time, it is said, it will not be able to refuse to pay the plaintiff, as it is bound by its wrongful determination that it is liable. Thus, the plaintiff will be able to procure future payments, but WCC will not be able to recover them.To award future loss of earning capacity is, it is said, to award double compensation (at least to the extent of the 80% figure for which WCC is liable now and in the future).

The argument is predicated on section 53 (7a), which sets out the limited circumstances in which a claim, once determined, can be redetermined.It is said that WCC has a liability only because of its wrongful determination to meet a claim following the second accident.It appears that the only scope to vary that determination is pursuant to placitum (a), which provides for redetermination by agreement with the worker.

I certainly have no intention to compensate the plaintiff twice.I have reservations about the argument I have recited.It is not clear to me that acceptance of the one week claim leaves WCC estopped from determining in any future claim that it is not liable for the consequences of the second accident. The equity of the situation seems to me to be that WCC should be able to effect recovery of its expenditure for such amount as is appropriate, apart from this argument.

To avoid the unlikely possibility of double compensation, I require the plaintiff to give an undertaking, as a condition of receiving any damages pursuant to this assessment, that he will, if requested by WCC, agree to a redetermination of its liability to compensate him in respect of any disability arising as a consequence of the second accident, including a redetermination that it is not liable for any such effect.

It does not seem to me that to require this is to require the plaintiff to fail to mitigate his loss, to the detriment of the defendants/SGIC.Subject to compliance with this condition, I allow the sum of $100,000 for future loss of earning capacity.

I must allow interest on those parts of past loss earnings as have not actually been paid to the plaintiff.They consist of the under payment in error of $444.30, the 20% reduction in income maintenance after two years, amounting to $3,429.50 and the unpaid superannuation of $468 - a total of $4,341.80.Most of that accrued over the last year.I will allow one year's interest on $2,500, being a bit over half. It amounts to $125.

Finally, some allowance must be made for future special damages.To cover a little future psychiatric treatment (or prescription of tranquillisers) and for a little future physiotherapy or exercise classes, I allow $1,000.

I summarise:-

THE FIRST ACCIDENT

Non economic loss

No. 9 X $1,310 (being the multiplier for 1991)$ 11,790.00

Past special damages (additional to those paid by SGIC) $6,623.70

Future special damages$1,000.00

Past loss earnings$ 40.000.00

Interest on past lost earnings$125.00

Future loss of earning capacity$100,000.00

Gratuitous services$1,500.00

Total for first accident$161,038.70

THE SECOND ACCIDENT

No. 2 X $1,430 (being the multiplier for 1994)$ 2,860.00

In case I am in error in any of my arithmetical calculations, I will give an opportunity to counsel to consider them.I will hear counsel on costs.I will hear counsel on the precise wording appropriate to give effect to the undertaking which I require.

FRIDAY 14 FEBRUARY, 1997

File No. 2925/93 - first accident - judgment for the plaintiff in the sum of $161,038.70 including interest.Plaintiff to have his costs of action taxed, if not agreed within 28 days.

File No. 295/95 - second accident - judgment for the plaintiff in the sum of $2,860.Costs limited to costs of issuing proceedings and no others.