Varnas v Peake No. Scciv-01-497

VARNAS v PEAKE
[2001] SASC 330
Full Court: Prior ACJ, Bleby and Gray JJ

PRIOR ACJ: I agree with the reasons prepared by Justice Gray. The appeal should be allowed, the judgment in favour of Mrs Peake, set aside. A judgment in the sum of $201805 should be entered in lieu of that set aside.
BLEBY J. I agree with the orders proposed. I agree with the reasons given by Gray J.
GRAY J. This is an appeal against an award of damages.
The Background
Deidre Peake, the plaintiff and the respondent to this appeal, claimed damages for injury and loss sustained as the result of a motor vehicle collision. Liability was admitted. The matter proceeded as an assessment of damages.
On 24 October 1996, Mrs Peake’s vehicle was stationary in a line of traffic. A vehicle driven by Elena Varnas, the defendant and appellant, collided with the rear of Mrs Peake’s vehicle. The impact pushed Mrs Peake’s vehicle into a stationary vehicle in front of her.
The collision occurred on a Thursday afternoon. That night Mrs Peake experienced pain and stiffness in her neck. Her condition worsened over subsequent days. The following Monday she consulted her general medical practitioner, who prescribed medication and a course of physiotherapy.
Mrs Peake regularly attended physiotherapy for a period of approximately twelve months. She performed exercises as prescribed. This treatment eased her symptoms. By the end of 1997 Mrs Peake consulted her physiotherapist only when her symptoms increased. This assisted in reducing the exacerbated symptoms. Mrs Peake otherwise experienced constant pain at a moderate level with restricted neck movement to the left.
Mrs Peake’s condition stabilised during 1998. She experienced pain in the left side of her neck, which sometimes extended to her left shoulder. Rotation of her neck was limited. Her pain increased with activity.
In mid 1998 Mrs Peake was referred to a neurosurgeon. A CT scan revealed a severely arthritic joint at the C3-4 level with microcytic changes in the bone. Mrs Peake was injected with cortisone in the area of the C3-4 joint. She was pain free for the first time since the collision. After about five weeks the pain gradually returned. Thereafter she continued with physiotherapy as required and used medication to control the pain.
At the time of trial Mrs Peake was experiencing constant pain. She had limited neck movement. Her symptoms continued to be exacerbated by activity.
Prior to the collision Mrs Peake had worked in a family business with her husband. The family business was operated through a trust, Axis Computing Trust (“the trust”). Profit made by the business was distributed through the trust. Ms Peake also provided clerical services to other businesses through the family business.
The Trial Judge’s Findings
The trial judge found that the injury suffered by Mrs Peake in the collision was an aggravation of a pre-existing asymptomatic degenerative change at the C3 – 4 level. His Honour’s findings with respect to pain and suffering and loss of the amenities of life included the following:
“The plaintiff’s pain has gradually increased. She currently experiences constant pain. She has limitation of movement of her neck to the left. Her symptoms are exacerbated by various activities; and, sometimes, the pain gets worse for no apparent reason. ...
The plaintiff’s injury and symptoms have had a significant impact on her life. It seems she has always been a somewhat proud housekeeper, preferring to attend to the usual domestic duties herself. Since the accident, she avoids vacuuming, ironing and the hanging out of clothes, seeking, and obtaining, the assistance of other members of her family in these chores. Many of these duties have fallen to her husband with the assistance of her children from time to time. She liked gardening before the accident, and participated in it, but now restricts such activity. Her quality of life has been impaired. She was fond of reading, but now finds that she is unable to read beyond about 30 minutes because of an increase in neck pain brought about by holding her head and neck in a static position. The same thing applies with the piano: she likes playing it, but, for the same reason, must restrict her level thereof. She is unable to drive or, for that matter, be a passenger in, a car for prolonged periods without an increase in her symptoms; and the reason is the same: holding her head and neck in a somewhat static position. Prior to the accident, in order to keep her weight down, she walked three times a week for 40 to 60 minutes. She does not walk now because it produces an increase in her symptoms and, as a consequence, since the accident, her weight has increased by about 10 kilograms. She gets depressed and cries easily. She has sometimes had thoughts of suicide, but has not spoken to anybody about it.”
The trial judge found that Mrs Peake’s earning capacity had been substantially affected:
“As a result of her injury, the plaintiff, since the accident, has been incapacitated for work; and such incapacity is permanent. It is not a total incapacity for work, but she is not fit to perform work which requires prolonged sitting, working with her head and neck in a static position for prolonged periods, the pushing or lifting of anything other than light objects, working with her hands above her head and prolonged standing or walking. She is fit for work of a light nature where she can sit, stand, move about and change the position of her head and neck as required; and even then, she is not fit for full-time work: the best she could do is 20 hours per week.”
The trial judge assessed Mrs Peake’s damages as follows:
“Non economic loss           $      45,600.00
Past economic loss             $      45,000.00
Future economic loss          $      125,000.00
Future medical expenses     $      15,000.00
Gratuitous services              $      2,500.00
Interest   $      13,000.00
Total            $     246,000.00”
With one exception there was no challenge to the trial judge’s findings of fact. The exception related to the trial judge’s valuation of Mrs Peake’s labour at $20 per hour. The trial judge accepted the evidence of Mr and Mrs Peake. Their credibility was not challenged.
Issues on Appeal
Counsel for Mrs Varnas submitted that the trial judge erred in his assessment of damages for non economic loss, past economic loss, future economic loss, future medical expenses and interest
Non –Economic Loss
The assessment of non economic loss is governed by s 35A(1)(b) of the Wrongs Act 1936 (SA). That section provides:
“(1) Notwithstanding any other law, where damages are to be assessed for or in respect of an injury arising from a motor accident, the following provisions apply:
...
(b)if damages are to be awarded for non-economic loss, they shall be assessed as follows:
(i)the injured person’s total non-economic loss shall be assigned a numerical value on a scale running from 0 to 60 (the greater the severity of the non-economic loss, the higher the number); and
(ii)the damages to be awarded for non-economic loss shall then be calculated by multiplying the prescribed amount by the number assigned under subparagraph (i); ...”
Section 35A (1)(b) was considered in Percario v Kordyzsz[1]. King CJ said at (260):
“The new provisions relating to the assessment of damages for the non-economic loss component of an award for injury sustained in a motor accident are contained in s 35a(1) of the Wrongs Act 1936, which was inserted by the Wrongs Act Amendment Act 1986 and came into operation on 8 February 1987. The new section made a radical change to the basis of the assessment of such damages. Prior to the amendment, a court was required to assess an amount which was fair and reasonable compensation for the pain and suffering and loss of the amenities of life as well as any loss of expectation of life, which had been suffered in the past and would be suffered in the future. In the new section those factors are included in the definition of ‘non-economic loss’. The principles relating to the assessment of their significance and the weight to be attached to them, in the assessment of the damages, are unaltered. The money value to be attached to those factors in the computation of the damages, however, has been radically changed. The section now requires the court to assign a numerical value on a scale running from 0 to 60.
The proper approach under the new provisions, in my opinion, is first to determine the severity of the non-economic loss in accordance with the well established principals. I can see no warrant in the new section for any different understanding of what is involved in the various components of non-economic loss. It is then necessary to compare the severity of the loss, so determined, with the most serious and the least serious non-economic loss which anyone could suffer. The numerical value is assigned accordingly.”
[1] (1989-90) 54 SASR 259; see also Packer v Cameron (1989-290) 54 SASR 246
The trial judge assigned a numerical value of 30 to Mrs Peake’s non economic loss as “her pain and suffering is constant and significant, and it will remain that way”.
Counsel for Mrs Varnas submitted that it was an error to attribute such a numerical value for non economic loss. It was submitted that in accordance with Percario the proper basis for assessment was to determine the appropriate numerical value in the range of 0-60, assuming that the worst possible kind of injury would attract the highest value. It was said that a value of something less than 10 was appropriate. Counsel for Mrs Peake acknowledged that the award for non-economic loss was too high. It was said that a value in the range of 12 – 15 would be appropriate.
I consider that the selection of a numerical value of 30 was too high. The concession by counsel for Mrs Peake was correct. Mrs Peake suffered an aggravation of a pre-existing asymptomatic degenerative joint in her cervical spine. She was left with significant disability and a degree of ongoing pain. She will need intermittent treatment in the future. However, when compared to the most serious of injuries, Mrs Peake’s injuries must attract a numerical value towards the lower end of the scale. In my view a numerical value of 12 is appropriate.
Loss of Earning Capacity
The trial judge’s conclusions concerning Mrs Peake’s loss of earning capacity have been set out above. His Honour made further findings about Mrs Peake’s loss of past and future earning capacity. As those findings were accepted by both parties it is convenient to refer to them:
“The plaintiff is now aged 45. She was born on 27 March 1955. She completed Year 10 at school, leaving during Year 11. She did clerical work until she married. She was born and educated at Wallaroo and worked there until she married, moving then to Adelaide. As I understand it, since their marriage, her husband has worked in the computer industry, establishing his own business shortly after they were married. The plaintiff has been actively involved in this business, which has become very much a family concern.
The plaintiff has had three children, the youngest of whom is now aged 15 and in Year 11 at school. Since her marriage, the work she has performed outside the home has always been of a clerical nature and in the family business. The plaintiff has been a willing and contributing participant in the business to such extent as she has been able, taking into account the need for her to care for the children of the marriage. It seems that the division of the parenting and domestic tasks has been ordered so as to allow the plaintiff’s husband to devote as much of his time to the business as possible; and the business has been successful. Naturally enough, the plaintiff’s work in and for the business has involved time spent at a computer terminal; the sort of work which, like reading and playing the piano, causes her problems with her neck.
The financial affairs of the family business, at all relevant times, have been organised through a trust, Axis Computing Trust (‘the Trust”). At all relevant times, the trustee of the Trust has been Axis Computing Pty Ltd (“Axis”). The plaintiff and her husband have been, and remain, shareholders in Axis. The business of Axis is the provision of services and advice in the field of information technology. The profit made by Axis is distributed through the Trust to the plaintiff, her husband and three children by way of salaries, superannuation and other distributions as decided by the plaintiff and her husband acting on the advice of their accountant. The plaintiff readily concedes that she is not able to point to any diminution of her income since the accident. The amount she has received through the Trust has not diminished.
At the time of the accident, the plaintiff was working about 10 hours per week for Axis and for an organisation called Coded; an organisation to which Axis supplied services, including technical advice and clerical staff. Axis charged Coded for the plaintiff’s services. About a month before the accident, she had been working about 5 hours per week for Axis. For a period of about 12 months prior to that, she had worked at Coded as part of the services provided by Axis to that organisation. Coded was charged by Axis for her services. She worked about 40 hours per week. She ceased this work because of a change in the domestic arrangements of her family. During the period she was working full-time at Coded, she was also spending about 2 hours per week doing book work for Axis.
After the accident, the plaintiff did not do any work for a week. She then resumed work for Axis, working about 6 hours per week. In July 1997, she commenced working full-time at Colliers Jardine. She did clerical work. Her services were provided to Colliers Jardine by Axis at a price. She ceased this work because her pain increased and she could not cope any longer. She then worked for Axis for about 2 hours per week. She also did some clerical work for a speech pathologist and an accountant on a part-time basis, services which were supplied and charged for by Axis.
The plaintiff and her husband had been keen for some time to expand their business. Early in 1998, Axis entered into a partnership arrangement with others through a company called New Technology Partners Pty Ltd (“New Technology”). This company is in the business of providing services and advice in the field of information technology. Axis has a third share of New Technology. Axis delayed it’s entry into the New Technology venture because of the plaintiff’s health after the accident. There was always a role in the business of New Technology for the plaintiff; and, because she could not exercise that role on account of her health following the accident, the work she would have done was outsourced at a cost to New Technology of $25 per hour. This was full-time work as from July, 1998. Axis would probably have charged $20 per hour for this work if it had been done by the plaintiff.
In about the middle of 1999, the plaintiff commenced work in the New Technology business. Initially, she worked 10 to 12 hours per week, increasing by late 1999 to 20 hours per week. She has continued to work 20 hours per week since that time. She is not able to work any longer because of the symptoms she suffers from the injury sustained by her in the accident; otherwise she would.
...
The plans of the plaintiff and her husband, so far as work is concerned, have changed since the position has become clearer as to the plaintiffs physical condition and fitness for work. Prior to the accident, they intended to operate the business indefinitely: the plaintiff describing her husband as a workaholic. It was the plaintiff’s intention to work until she was about 60. The plaintiff’s husband, who is the one who provides the technical expertise in the business and without whom the business would probably not function, thinks that, because of the plaintiff’s health, they should sell the business in about 3 years and retire. He is concerned about the plaintiff’s quality of life and is keen for her to be as comfortable as possible.
...
In assessing the plaintiff’s damages for future economic loss, I have made allowance for the possibility that her neck would have become symptomatic at some time before she decided to cease work, and that her earning capacity would have thereby been impaired: although Mr McCulloch thought it likely that the pre-existing degenerate condition of her neck would have become symptomatic at about the time she turned 60, the possibility existed that it could have occurred earlier. I have also taken into account the possibility that, for whatever other reason, she would have ceased work before she reached the age of 60.”
Counsel for Mrs Varnas submitted that because Mrs Peake’s pre-accident income had been maintained, there had been no loss of earnings. It was said that her level of income was likely to be maintained in the future. Therefore only a nominal award should have been made for both past loss of earnings and future loss of earning capacity.
The principles to be applied in regard to the assessment of damages for loss of earning capacity were recently restated by the High Court in Husher v Husher[2]. Gleeson CJ, Gummow, Kirby and Hayne JJ said at [6-8]:
“... A person who is physically injured by the negligence of another may suffer damage in a number of ways. As has long been established, the damages to be awarded to the victim are "that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation". If the victim's pursuit of gainful employment is interrupted or affected because of the negligent infliction of physical injury, the victim is to be compensated by an amount that reflects the financial consequences that follow from the impairment.
Since at least Graham v Baker it has been recognised that it is convenient to assess an injured plaintiff's economic loss "by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss". But damages for both past loss and future loss are allowed to an injured plaintiff "because the diminution of his earning capacity is or may be productive of financial loss”. Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if injury had not been sustained.
No doubt the past may provide important evidence about the plaintiff's earning capacity and what economic consequences will probably flow from what has happened. What a worker earned in the past may provide very useful guidance about what would have been earned if that worker had not been injured. But the inquiry is an inquiry about the likely course of future events and evidence of past events does not always provide certain guidance about the future. There may be many reasons why an injured plaintiff's past work history provides no assistance in deciding what that plaintiff has lost through diminution of future earning capacity. The student who is yet to enter the workforce is an obvious case of that kind. That student may have no history of paid work. Important as evidence of past events may be, that evidence is not determinative of an issue about loss of future earning capacity.”
[2] (1998-1999) 197 CLR 138
Prior to the collision Mrs Peake had intended to increase her hours of work. Following the collision she attempted full time work for three months. However she was unable to cope due to pain and discomfort. Had Mrs Peake been fit, full time work would have been available to her through the family business from mid-1998. The suggestion that Mrs Peake’s pre-accident salary was maintained is not to the point. Her past work history is of limited assistance given her plans to work full time.

In Husher, the court considered the significance of family business structures in assessing for damages for loss of earning capacity. Gleeson CJ, Gummow, Kirby and Hayne JJ said at [18-22]:
“The financial loss occasioned by impairment of earning capacity is the loss of what (if there had been no accident) the injured plaintiff would (as opposed to could) have expected to have had under his or her control and at his or her disposal by exercising that capacity. We refer to "control" and "disposal" because what the plaintiff has lost are the financial rewards from work that are rewards the plaintiff would have been able to direct to whatever purpose or destination he or she chose.
The finding in this case about probable continuance of the partnership reveals how the appellant would, in all probability, have ordered his financial affairs -- by an arrangement terminable at will under which, in return for services of negligible value, he would have shared with his wife 50 per cent of the net proceeds of his endeavours. But the finding about probable continuance of the partnership, standing alone, does not reveal how much the appellant would have had under his control and at his disposal.
There are two critical elements. First, the whole of the income of the partnership came from the efforts of the appellant and the exploitation of his earning capacity. As a matter of practical reality, his wife's contribution to the income was negligible. Secondly, the partnership was a partnership at will. The appellant would very probably have chosen to maintain those arrangements but that was his choice. If he chose to make some other arrangement concerning the fruits of his labour, effect would be given to that choice, whatever view his wife may have held. What the appellant would have had under his control and at his disposal but for the accident was, therefore, the whole of the fruits of his skill and labour. And it is, then, the whole of those fruits that he has lost. In this regard, the case is no different from the injured plaintiff who would probably have devoted some or all of the income earned in the future to charity.
...
In this case it was probable that the appellant would have exploited only his own earning capacity to generate net income of a particular amount and that he would have been able to control the destination of that net income as he chose. In those respects, this case differs from some other hypothetical examples mentioned in the course of argument. No true comparison can be made between this case and that of a person expected to remain a member of a partnership not terminable at will or a partnership in which persons other than the injured plaintiff contribute significantly to the firm's business activity, either by capital contribution or by contribution of skill and labour. In those cases other considerations intrude in deciding what is the loss occasioned by the impairment of the plaintiff's future earning capacity. In at least some cases of the kinds mentioned it may be that the plaintiff's probable exploitation of earning capacity to generate income over which the plaintiff would have had control would be limited to the amount of the benefits the plaintiff could have expected to receive under the partnership arrangements (for as long as those arrangements were likely to have persisted) but each case will turn on its own facts.”
At [23] their Honours addressed income sharing arrangements generally. They said:
“Deciding what value is to be ascribed to the loss of future earning capacity of an injured plaintiff requires close attention to the facts of each case. The task is not one to be undertaken by seeking to classify cases as concerning "sole traders" or "partnerships" or "wage-earners" or "trading trusts", and then attempting to deduce some rule of general application to all cases falling within the classification thus devised. Rather the inquiry is about what could the plaintiff have done in the workforce but for the accident and what sum of money would the plaintiff have had at his or her disposal. Only when those inquiries are pursued can a judgment be made about what capital sum to allow as damages for the impairment of the plaintiff's earning capacity. In doing so, regard must be had, of course, to all those contingencies of life that might reasonably be expected to affect the course of events in the future. “
Counsel for Mrs Varnas submitted that Mrs Peake’s losses should be limited as a result of her salary and distributions through the trust. Mrs Peake’s taxation records indicated that she had been paid her part time earnings by way of salary. Had she been employed full time, there is no reason to conclude that at least a sum equivalent to full time earnings would not have been paid. The payment of a sum equivalent to full time earnings by way of salary would have accorded with past practice.
Mrs Peake chose to have her earnings dealt with through the company and the family trust. In particular she elected to take her salary through the trust. She had the products of the exercise of her earning capacity under her control and at her disposal.
I consider that the trial judge was correct in concluding:
“..., the plaintiff’s earning capacity has diminished since the accident and will remain that way; and Mr Stanley, for the defendant, conceded that; but he submitted that such diminished capacity should not sound in damages by way of past economic loss because it has not been productive of any financial loss in that, to date, there has been no diminution in the plaintiff’s income from Axis; that her income from the business has borne no relationship to the work performed by her in the business. So far as any damages for future economic loss are concerned, he submitted that there should be an award of damages to compensate her for the possibility that the diminution in her earning capacity would result in actual financial loss; submitting that such figure should be modest because, as he put it, the plaintiff probably would not have worked much longer into the future and the success of the business meant that she was probably going to receive from it an income similar to that which she would have earned if she had sold her labour outside the business. I do not accept these submissions.”
It was contended that the trial judge erred in selecting $20.00 per hour as the value of Mrs Peake’s labour. It was said His Honour should have fixed on a value of $16.00 per hour The trial judge’s finding was as follows:
“The plaintiff’s work for New Technology is charged out at $16 per hour by Axis. The going rate for her work is really $20 per hour. The work being performed by the plaintiff is really part of a full-time job, so that a person is employed part-time to do that part of the job which is not performed by the plaintiff. The person who performs the balance of the job is a junior who is paid at the rate of $16 per hour. It is deemed to be appropriate that the plaintiff’s services be charged out at the same rate as the person who shares the work with her.
...
In the assessment of the plaintiff’s damages for economic loss, both past and future, I have proceeded on the basis that the plaintiff’s earning capacity reasonably produces $20 per hour. It is true that, currently, she is selling her labour at $16 per hour, but the real value for her work is $20 per hour; the $16 per hour being a rate which has been discounted in the circumstances I have mentioned.”
These factual findings were open on the evidence. The trial judge accepted the explanation proffered as to why the plaintiff was at the time of trial charging less than $20.00 per hour for her labour. No error has been demonstrated.
The trial judge’s findings as to the work history of Mrs Peake between the time of the collision and the trial have been set out earlier[3]. For much of the period she worked substantially less than 20 hours per week. The assessment of past economic loss at $45,000.00 was reasonable. It was supported by the evidence. No error has been demonstrated.
[3] See [13-15] and [22]
Mrs Peake has been rendered unfit for all but part time light work. In the circumstances, the award of $125,000.00 for future loss of earning capacity was reasonable. This is confirmed by testing the award by the application of an actuarial multiplier of 544 (to age 60), to a notional nett weekly loss of approximately $280.00. After allowing for contingencies and the loss of earning capacity beyond the age of 60 years, the award of $125,000 is well within the acceptable range of damages.
Counsel for Mrs Peake contended that the award for past and future loss of earning capacity was too low. It was said that despite the concessions discussed earlier, Mrs Peake’s overall assessment was reasonable as the under assessment with respect to loss of earning capacity compensated for the conceded over assessment. I disagree. In my view the assessments for loss of past and future earning capacity were reasonable.
Future Expenses
The trial judge made the following findings with respect to ongoing expenses:
“A visit to her physiotherapist costs her about $35.00. It is hard to be precise, but I think it likely that she will have treatment from her physiotherapist on an average of about once every two to three months for the relief of temporary exacerbations in her condition.
The plaintiff experiences an increase in her symptoms on an average of once per week. She takes medication to ease the pain. She takes Voltaran and Panadol. She spends about $23.00 on Voltaran every twelve months and about $48.00 per year on Panadol. I think her consumption of these medications is likely to remain at this level, at least for the foreseeable future.
...
It will be necessary for the plaintiff to see her general medical practitioner from time to time because of her symptoms and the need for prescriptions for medication, but I do not anticipate that these consultations will be on a frequent basis.
...
I think it is possible that she might reach a point where, the physiotherapy and medication having no effect on keeping the pain at a tolerable level, she will seriously consider undergoing the surgery. Presently, such a procedure would cost something in the vicinity of $16,000.”
The trial judge awarded $15,000.00 for future medical expenses. Counsel for Ms Varnas submitted that in the circumstances an award of $15,000.00 was excessive. I agree.
The trial judge found that there was only a possibility that Mrs Peake might have to consider surgery in the future. He found that she was likely to have only infrequent consultations with her general practitioner and that from time to time she would need physiotherapy to relieve temporary exacerbations of her condition.
Regard must be had to a number of contingencies. This includes the important contingency that Mrs Peak’s degenerative condition may not have remained asymptomatic had collision not occurred.
Considering that surgery was only a possibility, an award of $5,000.00 for future expenses is appropriate.
Interest
The trial judge awarded Mrs Peake a lump sum of $13,000 as interest. Counsel for Mrs Peake correctly conceded that the trial judge erred in the award of interest. Pursuant to s35A of the Wrongs Act interest is only attracted on awards for past economic loss and gratuitous services. On appeal counsel agreed that if pre-trial economic loss was not reduced, total interest of $6,065 would be appropriate. This figure was based on $5,850 interest for $45,000 for past economic loss ($45,000/2 x 6% x 4.33) and $215 interest for an award of $2,500.00 for gratuitous assistance. ($2,500/2 x 4% x 4.33).
Conclusions
The appeal must be allowed for the purpose of reducing Mrs Peake’s damages to reflect adjustments to the awards for non economic loss, future medical expenses and interest. The assessment having regard to these adjustments is as follows:
Non economic loss  $18 240.00
Past economic loss  $45 000.00
Future economic loss  $125 000.00
Future Medical expenses  $    5 000.00
Gratuitous services  $    2 500.00
Interest  $    6 065.00
Total:                  $201 805.00
The judgment of the trial judge should be set aside. Judgment should be entered for Mrs Peake for $201 805.00.
I would hear the parties on the issue of costs.
LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT
1(1989-90) 54 SASR 259; see also Packer v Cameron (1989-290) 54 SASR 246
2 (1998-1999) 197 CLR 138
3 See [13-15] and [22]

[2001] SASC 330

23 October 2001