White v Aboriginal and Islander Affairs Co

[2000] QDC 332

DISTRICT COURT OF QUEENSLAND

[2000] QDC 332

REGISTRY:  ROCKHAMPTON

NUMBER:     58 OF 1997

PLAINTIFF:  COLIN ARTHUR WHITE

and

FIRST DEFENDANT:        ABORIGINAL AND ISLANDER AFFAIRS

CORPORATION

and

SECOND DEFENDANT:   STATE OF QUEENSLAND

and

THIRD DEFENDANT:       QUEENSLAND HOUSING COMMISSION

REASONS FOR JUDGMENT

BEFORE HIS HONOUR JUDGE BRITTON S.C.

DELIVERED the 15 day of September 2000

In this action the plaintiff claims damages for personal injuries sustained by him in an incident which occurred on the 22^nd April 1994 and which he alleges was caused by the negligence of the defendants or one or other of them.

Both liability and quantum are in dispute.  At the outset of the hearing, I was informed that the third defendant, Queensland Housing Commission, admitted that at all material times it was in occupation and control of the house referred to in the plaint and that that defendant also admitted paragraphs two and three of the plaint.

The plaintiff and his wife then known as Melissa Saltner entered into a tenancy agreement with the Aboriginal and Islander Affairs Corporation on the 6^th February 1991 in respect of a house situated at 86 Clifton Street, North Rockhampton.  The tenancy agreement was still in force as of the 22 May 1994.

According to the plaintiff, at some time after the commencement of the tenancy it became apparent that there were some defects in the premises which required attention.  He spoke of the concrete under the house cracking and the right side of the house starting to sink and the posts sinking into the ground.  He said that eventually it was decided by the Housing Commission that they would restump the house, concrete it underneath and raise it as well as putting an extra room under the house.  The plaintiff said that he and his family moved out of the property around about the 22 to 24 April 1994.  Prior to moving out he said he was approached by the Housing Commission.  He referred to a person, named Sonny, coming and speaking to him and his wife and then having a telephone conversation on Sonny’s car phone with someone called Michelle who was said to be in the office of the Housing Commission.  He said that he was not told to remove all of his personal belongings from the house but took sufficient clothing for two to three weeks as well as some food stuffs.  He said that the renovations took three or four months.  He said that three or four weeks after vacating the house it was necessary to go back because his son had got asthma and it was necessary to get his nebuliser and some warm clothes.  He said that prior to going back to the house he made contact with the Housing Commission on the Friday before the 22 May 1994 and told them that he had to go back to the house to retrieve clothes and the nebuliser and that the person to whom he spoke said: “its your house do what you like”.  This passage in the evidence was objected to by Mr Crow for the defendants on the grounds that the person to whom the plaintiff spoke was not identified in any way and in particular was not identified as being the servant or agent of any one of the defendants.  I allowed the evidence subject to my ruling upon its admissibility at a later stage.  The plaintiff was asked further questions in an endeavour to elicit evidence which would identify the person to whom he spoke or at least identify the department or entity by which that person was employed.  The plaintiff said that the name of the department was Aboriginal Housing Corporation.  Later under cross-examination he reiterated that he could not recall the name of the person to whom he spoke on the Friday.  In response to a question from me he said that it was a female and he said that it was at the office in High Street and that that was the place he normally had dealings with the Aboriginal Housing Corporation.  He said that that was where they paid their rent and they went there in relation to any work that had to be done to the house.  He said that Mr Carthew’s office was in the same place.  He did not recall what time of day he made the call.  He was unable to say whether the person to whom he spoke was the person named Michelle to whom he says he and the person Sonny spoke on the occasion he was told it would be necessary to vacate the house and when it was that a discussion occurred about not paying rent during the period the house was not being occupied.

I will return to this issue at a later stage.  In any event on the 22 May 1994 the plaintiff went to the property at 86 Clifton Street, North Rockhampton with his wife and son.  This was a Sunday.  He said that the house was in a raised state.  The steel posts holding the house itself were in place.  The concrete had not at that stage been laid and it was all open and there were no steps.  Access to the house was first attempted by the plaintiff lifting his 8 year old son Zachary onto the landing.  This was achieved by pulling a wheelie bin over to the veranda and placing a piece of board across the top of the wheelie bin to stabilise it.  The plaintiff then hopped up on to the piece of wood on top of the wheelie bin and lifted his son up onto the landing but he was unable to open the door.  He said that the height of the landing above the ground was “2 point something meters”.  When this attempt to gain access to the house failed the plaintiff tried himself to get onto the landing from the wheelie bin.  He went to push himself up onto the landing with his hands placed on the landing when the landing gave way.  The whole landing came down.  When this happened the landing came down across his great toe on his right foot and a piece of board with a nail in it entered his thigh.

The plaintiff said that there were no fences or barricades around the property and there were no signs on the property.  Later he said that as at the date of the incident there was a front fence but that a panel and the gates had been removed and this is how access was gained to the property.

I accept the plaintiff’s evidence as to the circumstances surrounding the happening of the accident itself.  I accept the balance of his evidence in relation to liability save that relating to the alleged conversation in which he was supposedly told that he could go to the property and which he alleges occurred on the previous Friday.  It seems to me that the objection to the admissibility of the evidence of this conversation is a valid one because the identity of the person to whom he spoke was not established.  However, even if the evidence were admitted I am not satisfied as to the truth or reliability of the evidence.  I found the plaintiff’s evidence as to the conversation to be vague and unconvincing and I am not prepared to act on it.  In this regard I note also that Mr Carthew who at the time was employed by the Queensland Housing Commission but in a section of that Department called the Aboriginal and Torres Strait Islander Housing Department said in evidence that as at 1994 the office was not at High Street but on the corner of Bolsover and Fitzroy Streets Rockhampton.  He confirmed that not withstanding the clause in the tenancy agreement which required rent to be paid to the office of the Division of Aboriginal and Islander Affairs, Shop 3/ 69 High Street, North Rockhampton as at May 1994 rent was required to be paid to the office at the corner of Bolsover Street and Fitzroy Street.  This occurred as the result of all of the properties run by the Division of Aboriginal and Islander Affairs being transferred to the Department of Housing in 1992.  At a later time, which Mr Carthew said was 1998, the Office moved from Corner of Bolsover Street and Fitzroy Street to High Street.  I accept Mr Carthew’s evidence.  In any event, as I have indicated I find the plaintiff’s evidence as to the conversation such that I cannot except it.  I am not satisfied on the balance of probabilities that any such conversation as that to which he refers occurred.

It was submitted by Mr Crow for the defendants that the plaintiff was in fact a trespasser at the time when the incident occurred.  The plaintiff’s counsel Mr Flint submitted that the plaintiff was not a trespasser and he sought to make a distinction between the plaintiff's being required to vacate the premises and vacant possession.  He referred also to the fact that the certificate of title for the land was at the material time registered in the name of “The Corporation of the Director of Aboriginal and Islander Affairs” and he relied upon the allegations in paragraph 1(b), (c), (d), and (e) of the plaint.  The submission then was that as the first defendant was or was entitled to be the registered proprietor of the land I would be entitled to infer in the absence of evidence to the contrary that the first defendant was in control or management of the property.  The submission then went on that the second defendant had admitted in its defence that it was the registered proprietor of the property and that once again I would be entitled to infer in the absence of evidence to the contrary that the second defendant was in occupation and control.  However, both the first and second defendants expressly denied being in occupation and control of the property at the material time.  I am not satisfied that there is any evidence that would enable me to infer that either the first defendant or the second defendant was in occupation or control of the premises at the material time.  In any event, the third defendant has expressly admitted that it was in occupation and control of the premises.  In my view, there is absolutely no basis for any finding of negligence against either the first or second defendants.  Since the decision of the High Court of Australia in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, the general principles of negligence now exclusively govern an occupier’s liability to a trespasser. The likelihood of entry will be relevant to the foreseeablity of injury. A lower standard of care may apply in relation to a trespasser than in relation to an invitee. The general principle is of course that, if a duty of care exists, it is to take reasonable care for the safety of persons entering the premises. Whether or not a duty of care exists depends upon the foreseeability of injury to the plaintiff.

On the evidence presented in this case I find that there was a foreseeable risk of injury to the plaintiff.  The house property was situated in a normal suburban street in Rockhampton.  The landing had been left in a state in which it was completely unsupported even by the stairs which had previously been in position.  There was no barricading or guarding of any kind to prevent any person, whether a trespasser or otherwise, attempting to gain access to the premises.  Even the front fence was not secure and a panel and the gates had been removed.  In my view, it was foreseeable that a landing previously supported at least by stairs which had been removed and no doubt also by stumps would fall whether under its own weight or upon the application of force to it and in the event of its falling there was clearly a risk that a person in the immediate vicinity of the landing might suffer serious injury.

Mr Crow argued that it was not foreseeable that a person would endeavour to get onto the landing and gain access to the house in the way in which the plaintiff did and which involved the use of a wheelie bin having regard to the height of the landing above the ground.  However, it is not necessary in order for the risk of injury to be foreseeable to prove that the precise manner in which the risk worked itself out was foreseeable.  The reasonable foreseeability which is in question is not of the precise event which in fact happened with all its concomitant circumstances but of the class or kind of event and circumstances of which these are an instance.  (Harrison v South Clifton Coal Mining Ltd (1963)SR(NSW)689: Mount Isa Mines v Pusey 125CLR 383)

It is necessary in determining the issue as to whether or not the duty of care has been breached to have regard to the magnitude of the risk.  There is no basis for any finding that the third defendant actually knew or ought to have known of the plaintiff’s intention to enter the property.  The landing was according to the plaintiff “two point something meters” above the ground.  In order to gain access to the landing it was necessary to use something such as the wheelie bin to provide sufficient height.  The house was not occupied at the time.  It was, as I have indicated, in a suburban street in Rockhampton.  The area was obviously a building site which might be thought to be of some attraction to trespassers.

In my view on all of the evidence before me there was a not insignificant risk of injury.

There is uncontested evidence that there were no barricades preventing the plaintiff from gaining access to the premises or to the landing itself.  There were no signs warning against attempting to gain access but more importantly in my view is the fact that the landing was left completely unsupported even by some temporary post or prop.  It seems to me that the positioning of a temporary post or other form of support under the landing would not have been a difficult or costly matter and may well have been sufficient action to discharge the third defendant’s duty of care.  It seems to me also that the third defendant was negligent in failing to advise the plaintiff to remove all of his personal belongings from the house prior to vacating it for the purpose of allowing the repairs to be carried out in addition to the placing of some form of barricade preventing or at least inhibiting entry to the premises may have been sufficient to prevent the plaintiff attempting to gain access to the property.

In all of the circumstances therefore I find that the third defendant was negligent.

Contributory negligence has been pleaded.  The evidence of the plaintiff is that prior to his attempting to climb onto the landing he observed that there were no posts underneath the actual landing and the plaintiff knew that vacant possession of the premises was required although there is no evidence to show that he knew that without any posts under the landing there was any danger in climbing onto it.  However, he knew of the nature of the building work which was being undertaken.  In all of the circumstances, I am of the opinion that the plaintiff did act without reasonable care for his own safety.  I am of the view that liability should be apportioned on the basis that the plaintiff is required to bear 50% of the responsibility for his injury.

The plaintiff was born on the 1 May 1962 he is therefore now 38 years of age and was almost 32 years at the time the incident occurred.

Following the happening of the injury, the plaintiff was taken by his wife to the Rockhampton Base Hospital.  He says he was in extreme pain on the way to the hospital.  At the hospital he was seen at the emergency department where it was found that he had suffered a lacerated right big toe with a puncture wound to his medial thigh.  He was treated with a compound scrub and primary closure of the wound.  An x-ray of the foot was ordered but no abnormality was noted.  He was discharged on crutches with a prescription for pain-killers and an antibiotic.  He went home but was unable to sleep that night.  He says he had to attend at the hospital every day for a week to have his dressings changed and during that week he had very little sleep due to constant pain in his toes.  He had to use crutches for about two and a half weeks as he could not tolerate weight bearing on his right foot and was unable to wear shoes because the contact with his big toe was to painful.  He apparently saw Dr Peter Dunbar a general practitioner on the day following the incident and it would appear that Dr Dunbar ordered an x-ray on the 14 June 1994 due to the fact that the toe remained painful.  The x-ray revealed an oblique comminuted fracture through the base of the first distal phalanx involving the joint.  On the 24 June Dr Dunbar reviewed the plaintiff who was still complaining of pain at the time and a swab was taken of the wound and he was commenced on antibiotics and was referred to an orthopaedic specialist Dr McMahon.

Dr McMahon saw the plaintiff in July 1994 at which time he found the plaintiff’s toe to be swollen.  Dr McMahon said that plain x-rays taken at the time of the injury (I assume these are the x-rays taken at the hospital) showed an intra-articular fracture at the base of the distal phalanx of the toe and x-rays taken at the time of consultation showed that this had not healed and there was some incongruity of the joint.  On the 6 September 1994 the nail of the right big toe was accidentally ripped off and the plaintiff attended the Rockhampton Hospital to have the toe dressed.  On the 2 November 1994 he was admitted to the Rockhampton Hospital to have the toenail removed so that it would not interfere with the operation to fix the toe.  He took pain killers for the pain and had to bathe the toe every day.  He was required to attend the hospital for re-dressing on some four or five occasions.  On the 21 December 1994 Dr McMahon performed surgery and found that the joint surfaces were severely damaged and he proceeded to arthrodese the joint.  The plaintiff was again prescribed painkillers and antibiotics and had to use crutches again.  He had to attend the hospital on twelve or fifteen occasions to have the toe redressed and also attended Dr Dunbar’s surgery for dressings a couple of times per week for a few weeks after that.  The pin which was inserted in the toe by Dr Dunbar began to cause discomfort after about one month following the surgery.  On the 29 April 1995 Dr McMahon found the arthrodesis to be solidly healed and he removed a prominent K-wire.  Again the plaintiff was prescribed antibiotics and pain-killers.  He saw Dr McMahon for review on the 11 May 1995 and was not required to see him thereafter.  Dr McMahon expressed the opinion that solid arthrodesis of the great toe interphalangeal joint usually results in a very functional situation with minimum long-term problems.  He said that it should not affect the plaintiff’s work and leisure activities significantly.   He assessed the plaintiff’s impairment for fusion of the IP joint of the great toe at 1% of the whole person.

The plaintiff complains that his toe was very painful for the first twelve months after the incident.  After the initial injury and after each surgical procedure he was unable to wear shoes or bear weight on his right foot and bumping the toe caused excruciating pain.  Any stress on the toe would cause it to swell and throb.  The plaintiff said he was unable to play any sport during this period.  Before the incident he was an A grade cricketer in the local competition and had been a regular member of representative teams.  He had also played indoor cricket and made the Queensland side every year from 1984 to 1989.  The plaintiff attempted a return to cricket in January 1996 for the country week tournament in Rockhampton but found that his toe swelled up, went black and was extremely painful and as a result did not attempt to play cricket again until October 1996.  He played club cricket regularly from October 1996 to the beginning of 2000.  He said that when he went back to cricket he changed his bowling style to spin and as a result had not been as successful a bowler as he had previously been.  However, he was selected in the Rockhampton and Central Queensland sides on about four occasions since the incident.  He said that he had also had to change his batting style and had to play more defensively than previously and also could not run between the ends as well as previously.  He said he suffered considerable discomfort when playing cricket but tolerated it because of his love for the game.  He had to cut the toe out of his shoe to stop the toe rubbing against the inside of his shoe.  He referred in his quantum statement to an article in the Rockhampton Morning Bulletin a copy of which was tendered. (Exhibit 7)  The thrust of the article was that he had bowled forty overs for his team on the Saturday and he was quoted as saying that it was the longest spell he had ever had at bowling.  He was bowling when play commenced at 12:45pm and was still going at stumps at 5:30pm.  In his quantum statement he said that this came about because his team was short of bowlers on that day.  He said that at each drink break he would take of his shoes and his wife would rub his toe for him but by the end of the day his whole toe was swollen and black.  He said that he put up with the pain because his team needed him to bowl.

He also played a half a season of soccer in 1998 but played only in the position of goalkeeper.  He said he could not play in any other position because the prolonged running would cause him to much discomfort and he felt it to painful to kick the ball off the ground.

The plaintiff was educated to grade nine standard and has no tertiary qualifications.  He did a baking apprenticeship but did not have a formal trade certificate.  At the time of the incident he was not employed.  He had taken a voluntary early redundancy from Queensland Rail on the 2 July 1993.  He had worked for Queensland Rail for a little over eight years as a porter/ shunter and at the time of taking redundancy he was earning about $850.00 per fortnight nett.  For the first three months after taking the redundancy he was on holidays.  He had not taken any substantial holidays before and wanted to get himself back into the normal routine after 13 years of working shift work.  He then started to look for work in approximately October 1993 by inquiring with people he knew for positions.  He did some casual fruit picking in December 1993 and registered with the Commonwealth Employment Service a couple of months prior to the incident and actively sought work but did not obtain any.  In the later part of 1994 he says he was offered a job installing air-conditioning units in the Whitsunday Islands but at that stage his toe was still causing him a lot of pain and discomfort and he had trouble wearing shoes.  Further he knew he still had a couple of surgical procedures that would prevent him from working for a couple of weeks and he did not think it was fair to take the job in these circumstances.  There was no evidence from anyone as to the level of income he would have received had he taken the position nor is there any supporting evidence that the position was actually offered to him.

He says that in early 1995 a friend who owned a Shell Service Station offered him a job as a driveway attendant.  The plaintiff told his friend that because of his upcoming operation and the time it would have him incapacitated he could not accept the position.  He said that he would contact him after the operation and did so but unfortunately the position had been filled.  Again, there is no supporting evidence that that the position was actually offered nor is there any evidence as to the level of income the plaintiff might have expected from that position.  The plaintiff says that in mid 1995 a friend who was at working at the Defiance Flour mill, told him about a job as a storeman and indicated that he would be certain to get the job because of his experience in the baking industry.  The plaintiff asked his friend if he would have to wear safety boots and he was told he would have to but he said he knew he could not wear safety boots so he did not apply for the job.

In evidence, the plaintiff was asked about whether or not he had attempted to wear safety boots.  He said that he had not worn a steel capped boot since before the accident and since the accident he had attempted to put steel capped boots on and found them very uncomfortable.  He said he had attempted to wear steel capped boots on about two or three occasions.  He said that these were after the removal of the pin which was the 29 April 1995.  He says that this would have been a good month or so after getting the pin out and clearance from Dr McMahon.  The plaintiff was cleared by Dr McMahon according to Dr McMahon’s report on the 11 May 1995.

The plaintiff was also examined for medico-legal purposes by Dr Bruce Martin.  This examination took place on the 1 November 1999.  He told Dr Martin that he was unable to wear steel capped boots and that he could not put on elastic sided boots and that at work he wore sandshoes.  He also said that it had been necessary for him to wear a bigger size of shoe.  Dr Martin had also reviewed some pages from the plaintiff’s Statement of Loss and Damage and he said that several of the assertions made in the statement were not sustainable by the evidence available to him and in particular he referred to the plaintiff’s statement that he was unable to wear safety boots.  Dr Martin said that there was absolutely no reason why the plaintiff could not comfortably wear safety boots.  He said that his assessment lent no support to the plaintiff’s assertion that he suffered discomfort and pain in his right great toe and that the long walking or standing caused considerable discomfort.  He said that no special footwear was required and the plaintiff required no further treatment.  He said the plaintiff was not impaired with respect to pursuing remunerative employment or enjoying the amenities of life and would appear to be not inhibited with respect to enjoying a game of cricket.  He said that the plaintiff possessed a near to fully functional right big toe save for the absence of movement at the interphalangeal joint and the toe was slightly shortened.  He conceded the plaintiff had suffered a significant injury to his right big toe and that this would have resulted in considerable pain and inconvenience during the twelve months subsequent to the injury initially on account of the injury and subsequently on account of the necessary surgery.  He assessed impairment of the lower limb at 1% but did not specify whether this was 1% of total bodily impairment or 1% of the limb.

I am of the view that plaintiff does not suffer from any significant ongoing disability.  I accept the evidence as to the degree of pain and suffering which the plaintiff experienced immediately following the accident and over the period of about twelve months after the accident and I accept that he suffered exacerbations of pain and disability following each bout of surgery.  It seems to me on all of the evidence to be reasonable that the plaintiff did not attempt to return to any form of remunerative employment until after he was cleared by Dr McMahon on the 11 May 1995.  The plaintiff therefore is entitled to some award in respect of loss of earning capacity during the period from the date of the accident to the 11 May 1995.  The difficulty is that the plaintiff had not been in any remunerative employment other than some casual work fruit picking for almost a year prior to his injury.  Indeed he had not actively sought employment until a couple of months prior to the injury.

Subsequent to his clearance by Dr McMahon, the plaintiff in fact had secured employment in June 1995 as a casual night filler with Franklins and continued to work there until the 8 January 1996 earning $9886 nett.  He successfully applied for full time work with the Department of Families and Community Care as a residential care officer and worked in that capacity from the 11 December 1995 until October 1997 earning approximately $34,200 nett or about $360 per week.  In February 1998 he went back to work for Queensland Rail as a track worker and continued in that employment until August 1998.  He then obtained employment on the 7 September 1998 with Kele Bros Pty Ltd as a casual freezer hand and remained in that employment until the 7 April 2000 earning approximately $360 per week and from the 10 April 2000 to the date of trial has been employed by the Rockhampton City Council on weed eradication patrol.  He earns $428.81 nett per week in this position.  He says he is required to wear safety boots in this position but wears only hiking boots and is concerned if his employer discovers he is not wearing safety boots he may lose his job.  In the light of the opinions expressed by Dr Martin, and in the absence to any evidence to the contrary from a medical practitioner I am of the view that the plaintiff has not established that he is unable to wear safety boots.

I am not satisfied that the plaintiff's ability to play cricket is significantly impaired.

For pain suffering and loss of enjoyment of the amenities of life I am of the view that the plaintiff should be entitled to an award of $12,000 of which $8,000 should be assessed in respect of past loss and bear interest at 2% per annum for the whole of the period from the date of the incident to the date of judgement.

So far as past loss of earning capacity is concerned, I am of the view the plaintiff should be entitled to a global award only having regard to the fact that he was not in employment at the time of the accident and this should be only in respect of the period until he commenced employment with Franklins.  In my view $5,000 is an adequate award in all of the circumstances.  As the plaintiff received social security benefits amounting to $10,000 there will be no interest in respect to the component of his award. 

In my view there is no basis for any award of damages for the future. Neither Dr McMahon nor Dr Martin express any opinion to support such a claim.  Indeed their opinions are to the contrary.

So far as damages on the Griffiths v Kerkemeyer principle are concerned, the plaintiff, in his quantum statement, says that during the first twelve months after the incident he had to rely upon his wife to provide him with assistance with various things which he refers to therein.  He estimates that on average his wife spent one and a half-hours per day for most of the twelve-month period following the accident.  He said that he was unable to continue to contribute to cleaning, cooking and taking care of the children to the extent that he did prior to the accident and could not mow the lawn or do other maintenance tasks so his wife had to do these.  In addition he needed his wife’s assistance to transport him to and from medical appointments and to fill prescriptions.  As well he said he needed his wife’s assistance with bathing and dressing.  Mrs White’s evidence was that she provided assistance of about three and a half hours per day and spoke also of the need to assist him in getting into and out of bed.  It seems to me that the plaintiff would have been somewhat inhibited in his ability to perform mowing and household maintenance tasks for most of the period of twelve months following the incident particularly bearing in mind that the fracture was not even diagnosed until the 28 October 1994 and he obviously underwent significant pain until after the joint was arthrodesed.  He also required further surgery.  I find that he would have been inhibited to some degree in his ability top perform household chores that is other than mowing and household maintenance and would have required some assistance from his wife to transport him to and from the hospital and doctors.  However, in my view one and a half-hours per day would be in excess of what was reasonably required.  I am of the view that the plaintiff should be entitled to an award based upon a need for four hours per week assistance for the period of 52 weeks following the date of the incident.  The rate for assessment of Griffiths v Keirkemeyer damages has been agreed at $9.00 per hour.  The amount at which should therefore be allowed is 208 hours at $9.00 per hour at total of $1,872.00 which would bear interest at 2% per annum.

In summary therefore the damages to which the plaintiff is entitled are as follows: -

Pain and suffering and loss of enjoyment of the amenities of life  $12,000.00

Interest on $8000.00 at 2% per annum for 6.25 years             $  1,000.00

Past economic loss  $  5,000.00
Griffiths v Kerkemeyer  $ 1,872.00
Interest at 2% per annum for 6.25 years  $    234.00
Special damages (as agreed)  $    670.00
Interest on $400.00 at 5% for 6.25 years  $    125.00
TOTAL  $20,901.00

After apportionment for contributory negligence the plaintiff would be entitled to $10,450.50.

I give judgment for the plaintiff against the third defendant for $10,450.50

G.T. BRITTON S.C. DCJ