Watts v Fenton No. Scciv-01-608

WATTS & ANOR v FENTON
[2001] SASC 305
Full Court: Prior, Lander and Wicks JJ

PRIOR J: I agree with the reasons given by Lander J and with the orders he proposes.
LANDER J. This is an appeal from a decision of a District Court Judge given on 29 March 2001.
The appellants are husband and wife and were the plaintiffs in the Court below. On 16 December 1997 the male plaintiff suffered injuries in a motor vehicle accident. He sued the defendant for damages for those personal injuries. The female plaintiff sought damages for the loss of consortium arising, so it was alleged, as the result of the injuries to the male plaintiff.
The defendant admitted liability for the plaintiffs’ damages during the trial.
The Trial Judge assessed the male plaintiff’s damages at $49,555 and she assessed the male and female plaintiff’s past economic loss at $10,000. She allowed $2,000 for interest.
Judgment was entered accordingly. The defendant was ordered to pay the second plaintiff’s costs. She was also ordered to pay the first plaintiff’s costs until 14 days after 25 September 2000. The first plaintiff was ordered to pay the defendant’s costs after that date.
There are six separate grounds of appeal. However, I think it can be said that both plaintiffs claim that the Trial Judge erred in the assessment of their claim for damages in all respects.
The male plaintiff was born in Wales in the United Kingdom on 18 July 1956 and so was 41 years at the time of the accident and 44 years at the time of trial. He emigrated to Australia with his parents when he was about eight years of age.
He remained at school until intermediate level (Year 10) and left to become an apprentice cabinet maker.
He completed his apprenticeship in the time prescribed, four years, and remained with the firm with which he was apprenticed for a further 12 months.
The plaintiff suffered a significant injury to his right leg during his apprenticeship. He suffered a compound fracture which prevented him working for about six months. He was able to continue with his study but not work.
Some years after the accident he had to undergo surgery in respect of that injury. The consequences of the injury and the surgery left him with a leg which is about 20mm shorter than his left leg.
He said that the leg caused him pain over a period of about ten years.
He married the female plaintiff in 1976 when he was 20 years of age.
He went to work for two kitchen manufacturers, both for short periods of some months before he obtained employment at Noblet Furniture where he remained for about six years. He built furniture.
He continued with his education and obtained certificates in advanced cabinet making and furniture making.
He also worked at home. He was assisted with his work at home by his wife.
The plaintiffs have two children, the first born in 1982 and the second in 1984.
In about 1982 he and his wife formed a partnership to make kitchen furniture. The partnership traded under the name of M and P A Cabinets. Initially the partnership traded from the plaintiffs’ home but later the plaintiffs leased a workshop at Lonsdale. The partnership employed tradesmen. It traded successfully.
The male plaintiff obtained a builder’s licence in addition to his other certificates.
The business made complete kitchens. The first plaintiff described the work as heavy.
He used to work 12-14 hours a day, six to seven days a week.
In 1990 the plaintiffs purchased a property at Mount Compass.
They built a factory on the premises at Mount Compass. Next they built a house. The house was completed in 1992. Most of the building work was done by the male plaintiff. The work which required specialist trades persons was sub-contracted. They relinquished the lease at Lonsdale and moved themselves and the business to Mount Compass. It may be inferred that the building work affected his ability to carry on his business. The plaintiffs changed the name of their business to Compass Kitchens.
The male plaintiff designed a microwave stealth shelf, the design of which was patented in Australia, New Zealand and other countries. They have sold about 1200 of those.
In about 1993 or 1994 the business of manufacturers of kitchens and the microwave stealth shelf was hit by the local recession and profitability was affected.
The plaintiff suffered injuries in an assault in 1995. After that time he had reported significant neck and back problems to his doctor. He was treated by his general practitioner for 12 months. He did not lose any time from work.
The Trial Judge found that in each of the financial years ending 1990-97 the business made a loss. She found that the only time when the business made a profit was in the period June to December 1997 but that was due to a particular and unique lucrative job.
The plaintiffs were in part dependant upon government assistance up until 1997.
The male plaintiff suffered soft tissue injury to his neck and back in the motor vehicle accident. He was able to attend to his work immediately after the accident. He experienced some ache in his shoulders and pain in the middle of his back.
The next day the pain was significantly worse. The pain had gone from a dull ache to an acute pain. He took digesics and applied Voltaren. He consulted his general practitioner, Dr Boggiano on 22 December 1997, complaining of pain in the mid and low back, a tight neck and an ache in the right buttock.
He worked through until Christmas and then took a week and a half off. That was his usual practice in any event. Whilst he was not working the pain was less intense.
He tolerated the pain between December 1997 and February 1999 when he returned to his general practitioner who ordered x-rays. He was treated with anti-inflammatory tablets, analgesics, low dose antidepressants and physiotherapy.
He was referred to Dr Magasdi. He ordered a CT scan of the lumbar spine which showed a mild annulus bulge at L5/S1.
He continued to have physiotherapy and receive conservative treatment throughout 1998. Eventually his general practitioner referred him to an orthopaedic surgeon Mr Cain. He also suggested conservative treatment which included exercise and rehabilitation treatment.
He did not become better. He continued to receive conservative treatment up to and including the year 2000.
Mr Cain considered discography. The cost of a discography itself would be $1,777. Mr Cain thought that discography was warranted to determine the underlying source of symptoms. If the discography indicated the necessity for spinal fusion the fees associated with such an operation would be in the vicinity of $10-15,000.
It was Mr Cain’s opinion that the plaintiff was suffering from a permanent impairment of function of the thoracic spine of 40 per cent, two thirds of which was due to the accident and remaining one third due to pre-existing degeneration.
The defendant had the male plaintiff examined by orthopaedic surgeons, Mr Osti and Mr Maguire.
It was Mr Osti’s opinion that the motor vehicle accident had aggravated a pre-existing symptomatic degenerative condition of the cervical, thoracic and lumbar spine.
He thought it was likely that if the plaintiff continued in his occupation as a cabinet maker he would expose himself to high level exacerbation and aggravation of that underlying degenerative and developmental condition.
He thought that spinal surgery was unlikely to be beneficial and would expose him to significant risk of complications.
He thought a better option than surgery was to submit the plaintiff to facet joint injections at the thoraco-lumbar and lower lumbar junctions which could be followed by facet joint rhyzolysis.
He was of the opinion that Mr Watts had an impairment of 30 per cent of his thoracic spine function and 20 per cent of his lumbar spine function. He apportioned 20 per cent of the impairment to the aggravating effects of the motor vehicle accident with the remaining 70 per cent to his pre-existing degenerative and developmental conditions.
Mr Maguire was of the opinion that he had a loss of function which was attributable to the accident of approximately 10 per cent of his cervical spine, 20 per cent of the thoracic spine and 10 per cent of the lumbar spine.
There was no real conflict in the medical evidence. The Trial Judge found that the surgeons were agreed that before the accident the plaintiff had a developmental condition of osteochondrosis which is characterised by weakness in cartridge and plates of the vertebrae. There was, however, the usual difference in emphasis between the respective experts. The plaintiff clearly had pre-existing degenerative changes in his spine. The accident aggravated the symptomatology. He has permanent disabilities of the kind mentioned by the three different medical practitioners.
Two findings are challenged by the plaintiffs.
The Trial Judge considered the question of the male plaintiff’s condition absent the accident. She found:
“Further I am satisfied that although the deterioration of his pre-existing condition would have at some, unspecified, time meant that he would in any event have reached this state (assuming he had continued in his occupation) the accident trauma has brought forward or accelerated that deterioration, and has done so to a significant extent. In terms of what is the predominant factor operating upon the plaintiff’s current condition, I accept the opinions of Mr Osti and Mr Cain that it is his pre-existing condition.”
That finding is challenged by the appellants.
As I have already noted the medical evidence was to a similar effect except for emphasis. Mr Cain was asked in cross examination whether because of his degenerative condition a point would have been reached prior to the usual retiring age where the male plaintiff would have had to rely on others to help with the physical side of his work.
Mr Cain said that he thought that there was some likelihood that he would have required some assistance at some stage in the future with heavier activities but in that respect he was no different than anyone else who was getting older.
Mr Osti’s evidence was that the male plaintiff had not completely recovered from the effects of the accident. One third of his continuing disability was due to the effects of the accident. In cross examination he agreed that he did not suggest that even if the male plaintiff had not had the accident he would have been as disabled presently. [TX 255.8]
That evidence appears to me to be consistent with his report written prior to trial when he said:
“I believe that the motor vehicle accident would have aggravated, to a moderate extent, Mr Watt’s pre-existing symptoms and had he not been involved in the motor vehicle accident, it is likely that he would have continued to suffer from intermittent neck, thoracic, thoracolumbar and lumbar symptoms, but of lesser intensity and overall, of lower disability.”
In my opinion Mr Osti’s evidence does not support the finding.
Mr McGuire said in his report:
“You ask, are you able to say, that if not for his involvement in the motor vehicle accident, that he would have suffered these injuries or disability in any event? At some stage, he would suffer from all such symptoms, neck ache, particularly lower thoracic ache, and some low back ache. His complaints are persistent that there is no way we have of telling how bad they were before the said accident because we are totally dependent upon the patient’s history, but given he hasn’t a ruptured disc at any of the sites, which could certainly be proven by investigations, each area of spine has to be degenerate or pre-existing Scheuermann’s deformity.”
However, in his evidence, he said that he was not in a position to say that if the male plaintiff had not had the accident he would have come to the stage where he would have had to have given up cabinet making or would have been able only to continue with full time work. [TX 356]
In my opinion the evidence before the Trial Judge did not support a finding that the plaintiff would have reached the level of disability which he presently enjoys even without the subject accident or without some other form of trauma to his body.
The evidentiary onus to establish that the male plaintiff would have been incapacitated at some time in the future to the extent that he is, in any event and without this accident, rests upon the defendant: Watts v Rake (1960) 108 CLR 158 at 159. That onus was not discharged.
That finding must have affected Her Honour’s assessment of the male plaintiff’s damages. It was certainly material to the assessment of his non economic loss and his future loss of earning capacity.
The Trial Judge further found:
“In this context it is pertinent to note that all three surgeons would have expected the effects of the collision to have subsided over time. Not only did that not occur but in August 2000 Mr Watts complained to Mr Osti of a deterioration in the preceding few months. In my view this fact reinforces the opinion that the accident was no more than a catalyst and the extent of its contribution to the plaintiff’s condition as a physical cause has decreased over time.”
In my opinion, this finding also cannot stand. Whilst all three surgeons had expected that the effects of the collision would have subsided over time they all agreed that the accident had left the appellant with a permanent disability.
The Trial Judge referred to the male plaintiff’s complaint to Mr Osti in August 2000 of the deterioration in the preceding few months. It is correct, as Her Honour has found, that the male plaintiff did complain of a deterioration over that period of time. However, it does not follow, that complaint would reinforce the opinion that the accident was no more than a catalyst. That complaint, if accepted, and indeed the Trial Judge did accept that the male plaintiff was genuine in his complaints, in my opinion, leads to the conclusion that the optimism of the surgeons for recovery was misplaced.
Again, in my opinion, the finding made by the Trial Judge cannot stand.
It was the male plaintiff’s evidence that the injuries have caused ongoing difficulties with his work and that he is unable to perform tasks which he previously could.
The Trial Judge accepted the male plaintiff’s evidence that since the accident his work rate has dropped and that he is unable to perform a number of the tasks which he could perform before his accident.
It was the male plaintiff’s case that he would have been unable to conduct his business but for the assistance of his wife. The Trial Judge also accepted that evidence. She concluded that after the accident Mrs Watts worked under the male plaintiff’s supervision in the workshop. She assisted with the heavier work. She worked ten to twelve hours a day, five days a week, working a little less on weekends.
Specifically the Trial Judge found that the female plaintiff had increased her contribution to the partnership from 25 to 100 per cent of the working week.
The plaintiffs’ children now perform the household chores which were previously performed by the female plaintiff.
The Trial Judge found that if it had not been for the female plaintiff’s assistance the business would have failed. However, the business continued to be unprofitable even after the accident and even with the assistance of the female plaintiff. The Trial Judge found that the business had not been profitable before the accident and was unprofitable after the accident.
She was of the opinion however that there had been no doubt that the plaintiff’s earning capacity had been affected by his injuries. She accepted his evidence that he now has to work more slowly than before and can do a lot less of the heavy work than previously. It is necessary for him to be assisted particularly by his wife. If he elected to cease to operate his own business and sought employment he would be at a significant disadvantage in the labour market.
There is no doubt in my opinion that the plaintiff’s damages fell to be assessed upon the basis that he had suffered an aggravation of a pre-existing condition. The pre-existing symptoms were aggravated by this injury. The injury interfered with his earning capacity to the date of trial and will continue to interfere with his earning capacity after trial. He had to be compensated for that loss of earning capacity insofar as it is productive of economic loss: Graham v Baker (1961) 106 CLR 340; Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649; Medlin v SGIC (1995) 182 CLR 1.
The defendant had to take the male plaintiff how he found him. If the male plaintiff was more prone to injury by reason of his pre-existing condition, that was a matter the defendant had to accept.
However, if the male plaintiff did suffer from that propensity that was a matter to which regard had to be had in considering the vicissitudes of life. The possibility that because of the male plaintiffs pre-existing condition he might have suffered injury in some other non compensable circumstance could not be ignored: Wilson v Peisley (1975) 7 ALR 571.
The male plaintiff was of course entitled to an award for non-economic loss. In that regard the Trial Judge said:
“In assessing damages for non economic loss it is necessary, pursuant to s 35A(1)(b) that I ascribe a numerical value between one and sixty to the plaintiff’s injuries. In doing so I have had regard to the ongoing pain, at times quite debilitating, to which the plaintiff has been subjected since the collision. I accept that it has pervaded his life. I conclude that a figure of six is appropriate. The relevant multiplier is agreed to be $1,550 and so the award under this head is $9,300.”
The plaintiff’s complaint in regard to this head of damages is quite simple. He says that having regard to the Trial Judge’s own findings the figure ascribed is simply too low. He also says that the impugned findings must have necessarily led the Trial Judge to award a sum which did not fairly represent the male plaintiff’s damages.
In my opinion those arguments are sound. Having regard to the Trial Judge’s own findings the figure to be ascribed was significantly higher than 6. I also believe the Trial Judge erred in respect of the matters to which I have referred. I believe that a figure of 12 would more nearly reflect the level of the male plaintiff’s non economic loss and I would increase the award for non-economic loss by $9,300.
The Trial Judge next dealt with special damages. They were claimed at $5,530.55. Most of the special damages related to physiotherapy treatment. The Trial Judge refused to allow any physiotherapy treatment after the end of 1998. The plaintiff was told at that stage by his treating surgeon that the therapy was achieving nothing. He was also given the same advice by the defendants examining doctors, Mr Osti and Mr Maguire at a later time. The male plaintiff refused to accept the advice from all of his surgeons and continued with the treatment. He said that the treatment did relieve pain. The Trial Judge however was not prepared to award any special damages for his physiotherapy treatment after the end of 1998. Clearly enough she was not satisfied that there was a need for such treatment and therefore the defendant should not be called upon to pay damages. In my opinion that was a matter of judgment that was fairly open to the Trial Judge. There was evidence, as the Trial Judge found, that physiotherapy treatment was of little or no assistance after 1998. In those circumstances the defendant should not have been called upon to pay damages for treatment which did not alleviate the plaintiff’s symptoms.
In respect of future medical treatment the Trial Judge awarded $2,000. Specifically she had regard to the need for occasional visits to the plaintiff’s general practitioner and perhaps a reference back to the Flinders Medical Centre pain clinic and certainly a need for medications. She thought also that there needed to be an allowance for swimming and exercise regimes. It is not clear how she arrived at the figure of $2,000 but the sum assessed was not challenged.

The Trial Judge first assessed the male plaintiff’s claim for loss of earning capacity. She said:
“In terms of the plaintiff’s claim for lost earning capacity I have already found that the expert accountancy opinions put before me are not, on the facts as I have found them to be, relevant as a means of calculating to what extent the plaintiff’s accident injuries will lead to pecuniary loss. However, there is no doubt that the plaintiff’s earning capacity has been affected by his injuries. I accept his evidence that he now works more slowly than before and that he can now do less of the heavy work. It is necessary for someone to help him with some tasks. That would have been advisable in any event in view of his prior condition. If he chooses in the future to abandon his own business and look for work in his field as an employee he will be forced to reveal his medical history and that may cost him positions for which he would otherwise be well qualified. In this event there may be periods of unemployment. Judging by his work history this is unlikely but either way, I consider a substantial sum is justified and I award $35,000.”
The Trial Judge has not distinguished between loss of earning capacity to the date of trial and loss of earning capacity after trial.
After considering special damages and future medical expenses to which I have already referred, the Trial Judge then addressed the female plaintiff’s claim. This had been pleaded as a claim for loss of consortium and for economic loss suffered by her as a result of the injury suffered by the first plaintiff.
The Trial Judge said this:
“As I mentioned the second plaintiff has brought a claim pursuant to s 34 of the Wrongs Act 1936. In my view it is reasonable to award an amount to compensate the partners for the impairment of the plaintiff’s input into the business in the post accident period, which deficit the second plaintiff, as it happens, made good. Her contribution provides a guide in quantifying that impairment. Had the partnership been able to afford to employ someone to help during this period the rate payable would have been of the order of $400 per week gross. Allowing that it was reasonable to let the situation settle for say a year, and remembering that Mrs Watts was already contributing about one quarter of a working week to the partnership, and that during this period she had some income from social services, I consider a figure of $10,000 is appropriate.
The second plaintiff also claims an amount by way of loss of consortium, specifically asserting a loss of the “plaintiff’s society and service with respect to social, domestic and economic duties”. I have found it difficult to come to grips with this claim. Both plaintiffs testified that their relationship had become difficult at times after the accident because of the plaintiff’s mood changes, his shorter temper and the pressures of work, but in my view something more than this is required and I do not consider that this limb of the claim is made out.”
It is clear from Her Honour’s reason that Her Honour has allowed nothing for consortium but $10,000, apparently to reflect the economic loss suffered by the female plaintiff.
Whilst the male plaintiff and female plaintiff were in partnership I do not think it can be assumed that the sum of $10,000 reflects only the female plaintiff’s loss from the partnership for a period of 12 months.
That is because in paragraph 25 of her reasons the Trial Judge described her assessment of damages as follows:
“A summary of my assessment of the quantum of damages is therefore as follows:
The first plaintiff
Non economic loss  9,300
Economic loss, future  35,000
Special damages  3,255
Future medical treatment  2,000
$49,555
The first and second plaintiffs
Past economic loss  10,000
Interest  2,000
$12,000”
It follows from that description that the sum of $10,000 reflected the whole of the male plaintiff’s past loss of earning capacity and the sum of $35,000 reflects the whole of his future loss of earning capacity.
The female plaintiff’s claim was based upon s 34 of the Wrongs Act 1936 (SA). The plaintiffs were partners in Compass Kitchens. Section 34 provides:
“(1)Where a husband and wife are engaged in the conduct of a business, and either of them suffers an injury as a result of which his or her participation in the conduct of the business ceases or is impaired, the other spouse shall be entitled to recover from a person whose wrongful act, neglect or default caused the injury compensation for loss that he or she has suffered or continues to suffer by reason of the fact that the participation of his or her spouse in the conduct of the business has ceased or has been impaired.
(2)In this section -
‘business’ includes any professional or commercial undertaking;
‘injury’ includes an injury that results in the death of a spouse.”
The female plaintiff, in my opinion, notwithstanding the provisions of s 34 was not entitled to any award for “economic loss”. The section was satisfied in that it was established that the male and female plaintiffs were engaged in business and the male plaintiff suffered an injury as a result that his participation in the business was impaired. However, the female plaintiff did not thereby suffer a loss because she provided the labour to replace the male plaintiff’s lost earning capacity. I do not think that she can claim economic loss. That does not mean that the plaintiffs must go without compensation for the male plaintiff’s lost earning capacity. It merely means that she is not entitled to the compensation.
In my opinion the Trial Judge should have assessed damages for the entire loss of earning capacity suffered by the male plaintiff in the male plaintiff’s action. The usual method of assessment, although it does not necessarily have to proceed on this basis, is that a sum is awarded to reflect the loss of earning capacity between the date of the tort and the date of trial. A further sum is awarded to reflect any future loss of earning capacity.
The distinction is made because there is usually more certain evidence of the loss to trial. That evidence is always historical and does not require the same assumptions in the reasoning process as must be applied to a consideration of future loss of earning capacity. In any event it would have been appropriate in this case to find whether or not there had been an interference with the male plaintiff’s earning capacity. That the Trial Judge did. There is no doubt in my opinion she found that there had been a serious interference with the male plaintiff’s earning capacity. Next she had to find whether that earning capacity had been replaced. That she also did. She found that the female plaintiff increased her contribution to the business from 25 to 100 per cent. She thereby assumed that the female plaintiff had to work something in the order of 30 hours a week to compensate for the male plaintiff’s loss of earning capacity.
Lastly she had to determine whether the loss of earning capacity had been productive of economic loss. In that regard she concluded that the business’s profitability did not improve after the accident. It continued to make a loss. It would have followed however that if the female plaintiff had not made the contribution she did, the loss would have been greater. In that regard, in my opinion, the injury has been productive of economic loss.
Alternatively the assessment of this loss could proceed upon a ‘needs’ basis. Personal injuries create needs. There are the immediate needs of medical services and paramedical services to treat the injuries. The need for medical services into the future is reflected by an award of damages based upon the cost of medical services. Other needs are also recognised in the assessment of damages. The need for assistance and services can often be met by a spouse or partner. Typically that person provides assistance or services to maintain or rehabilitate the injured spouse or partner. If the need which has arisen by reason of the plaintiff’s personal injuries and which otherwise would have to be met by paid workers is being provided on a voluntary basis that will sound in the plaintiff’s damages: Griffiths v Kerkmeyer (1977) 139 CLR 161. It forms part of the plaintiff’s damages because it is the plaintiff’s need which has been generated by the tort.
But a spouse may also, as in this case, satisfy needs apart from maintenance or rehabilitation. A self employed person may not be able to perform all of the duties that he or she was required to perform before the accident. That person’s injuries have generated a need, being a need for assistance to continue to carry on that person’s business. Because that need is met by a spouse voluntarily does not mean that the plaintiff is not entitled to damages for the need thus generated. On the contrary those voluntary services must be brought to account in the plaintiff’s damages in the same way as any other voluntary services administered to the plaintiff. Voluntary services for maintenance of a plaintiff assisting in easing pain provide a measure of comfort. Services for rehabilitation assist in relieving pain and restoring that part of the plaintiff’s earning capacity which has been diminished by the injuries. Services in assisting the plaintiff to exercise his or her earning capacity assist in preserving that earning capacity and minimising the plaintiff’s loss.
In my opinion this plaintiff’s need for assistance in exercising his earning capacity was compensable in his claim. The measure of that loss was the cost of the female plaintiff’s labour by reference to market rate: Griffiths v Kerkmeyer (supra) per Mason J at 193.
Of course, the voluntary services must satisfy a reasonable need. It would not be appropriate to allow for the provision of voluntary services to sustain an earning capacity which had no economic value before the accident. That is not the case here.
The assessment was the same whether it was measured by reference to a claim for loss of earning capacity or a claim for a need satisfied by way of voluntary services. The market rate of the female plaintiff’s labour less the incidence of income tax provided the basis for the assessment.
The assessment arrived at reflects the male plaintiff’s loss: Griffiths v Kerkmeyer (supra) at 177 per Stephen J.
The accident occurred in December 1997 and the assessment took place in March 2001.
Having regard to the Christmas break and the like, it would have been appropriate to assume that the loss of earning capacity or the need for services to trial extended over a period of about three years and three months. The first week of incapacity must also be disregarded: s 35A(1)(d) Wrongs Act 1936 (SA).
It must be assumed if the Trial Judge used the figure of $400 per week gross as a starting point in the assessment of loss of earning capacity to the date of trial, that Her Honour allowed for a loss or a need only for a period of one year. I am reinforced in that conclusion by the Trial Judge’s reference to “allowing that it was reasonable to let the situation settle for say a year”. That period, in my opinion, was inappropriately short. To allow a loss only over that period is also inconsistent, of course, with allowing for some future loss of earning capacity. There must have been a loss of earning capacity or a need for services over the whole of the period between tort and trial.
In my opinion the Trial Judge was in error in not compensating the plaintiffs for the male plaintiff’s loss over the whole of the period to trial.
It would have been reasonable to adopt the figure of $400 per week gross as reflecting the female plaintiff’s contribution which was made necessary by the male plaintiff’s reduced earning capacity. In my opinion, that figure should have been reduced by one quarter to reflect the pre-accident contribution by the female plaintiff.
The figure of $300 can be used as a guide to the loss of the male plaintiff’s earning capacity or the need generated for services over that period of three years and three months.
Some deduction would have to be made to reflect the incidence of income tax i.e. to reduce the figure of $300 to nett earnings.
In my opinion, adopting that method of assessment, a figure of $35,000 would represent the loss for that period of time. The same considerations apply to this aspect of the male plaintiff’s loss if the assessment is of the loss caused by the need generated. Whether the assessment is to satisfy the loss of earning capacity or the need generated by the injuries the assessment will be the same.
There is no need to revisit the question of loss of consortium as no complaint has been made of the failure to award damages under that head.
That leaves the question of the future loss of earning capacity.
The Trial Judge allowed the male plaintiff a figure of $35,000 for loss of earning capacity. She did not identify the method of calculation of that loss.
The assessment of the male plaintiff’s future losses is not without difficulty. As Her Honour has pointed out, except for one period of time, the business traded unprofitably.
As I have said the award for loss of earning capacity must be calculated by reference to the likely economic loss occasioned by that loss of earning capacity. It is not an assessment of loss of earnings, but the loss of earning capacity will be assessed by reference to the likely economic loss.
I think, in a case such as this, any assessment must be very much a matter of judgment. It is not possible to be precise about the likely loss on a week by week basis.
However, regard must be had to the cost of the wife’s labour. The female plaintiff’s labour has been made necessary by the loss of the male plaintiff’s earning capacity.
It would not, however, be appropriate to assess the future loss of earning capacity by reference to a figure of $300 for two reasons. First it is a gross figure. Secondly, I think, spread out for the whole of the male plaintiff’s working life, it would reflect an over compensation of the likely economic effects of the loss of his earning capacity.
I think having regard to the plaintiffs’ lifestyles it would be unlikely that the male plaintiff would work beyond 60. The plaintiffs have legitimately taken advantage of the social security system. It is likely that they would do so in the future especially after the male plaintiff becomes entitled to social security on his turning 60.
However, even if the male plaintiff was to cease work at 60 the present day value of an annuity to that date is $551 assuming a discount rate (as I must) of 5 per cent: s 34 Wrongs Act 1936 (SA). A figure of $50,000 for future loss of earning capacity would reflect a loss over his working life of about $100 per week nett. I think that is a fair assessment of his nett loss.
I would substitute a figure of $50,000 for the figure arrived at by the Trial Judge.
It follows that the appeal should be allowed. In lieu of the Trial Judge’s assessment I would substitute:
Pain and suffering and loss of amenities  $18,600
Past loss of earning capacity or economic loss  35,000
Future loss of earning capacity  50,000
Future Medical Treatment  2,000
Special Damages  3,255
$108,855
There must be an allowance for interest. No interest lies on future losses: Thompson v Faraonio (1979) 54 ALJR 281; s 35A(1)(k) Wrongs Act. No interest shall be awarded on the non-economic aspect of the plaintiff’s assessment: s 5A(1)(k) Wrongs Act 1936 (SA). There is no evidence that the special damages have been paid. Interest therefore could only run on the past loss of earning capacity (or voluntary services if that is how it is to be categorised). The past economic losses have accumulated over the whole of the period between tort and trial. It would be appropriate therefore to allow the interest on the whole sum assessed for half the period. That would reasonably reflect the loss due to the male plaintiff for being kept out of his money: Wheeler v Page & Harris (1982) 31 SASR 1. Interest should be at ordinary commercial rates, in this case for that period, 8 per cent. However, interest should be approached in a practical way: Cullen v Trappell (1980) 146 CLR 1, at 21 - 22. I would allow $4,500 as a lump sum.
The appeal should be allowed. The orders entered by the Trial Judge should be set aside. In lieu thereof the male plaintiff should have judgment for $113,355. The female plaintiff’s claim should be dismissed.
I would hear the parties as to the costs of the trial and this appeal.
WICKS J: I agree.

[2001] SASC 305

12 October 2001