Wright v N & E Enterprises Pty Ltd and Alh Group Pty Ltd No. DCCIV-01-697

WRIGHT v N & E ENTERPRISES PTY LTD AND
ALH GROUP PTY LTD
[2003] SADC 103
Judge Rice
Civil
Introduction

This is a claim by the plaintiff for damages arising from an incident in the car‑park of the Ramsgate Hotel, Henley Beach, on Thursday, 20th January, 2000. Both liability and quantum are in dispute. The second defendant, ALH Group Pty Ltd (“the hotel”), was the licensee and manager of the Ramsgate Hotel at the relevant time.
The facts of the case are referred to in detail below. Briefly put, the facts are as follows. The plaintiff, Ms Lorraine Wright, and her partner of some 16 years, Mr John Hoppe, were guests at the Ramsgate Hotel. On the morning of 20th January, 2000 they decided to check out of the hotel and commence their return journey to Melbourne. This was a day earlier than they had originally planned to leave. Their car was parked in that part of the car-park of the hotel that is normally set aside for patrons of the bottle shop.
On that morning there was a mobile crane operating in the car-park. The hotel was undergoing some renovations and the mobile crane was necessary to lift air‑conditioning ducts on to the roof of the hotel for later installation. The first defendant, N & E Enterprises Pty Ltd (“the crane company”), was the operator of the mobile crane. The mobile crane was of such a size that it had four stabiliser bars or legs that came out from the sides to render it stable when in use. The position of the crane and its stabilisers was such that Mr Hoppe was unable to move or drive the car from the car-park until the crane was finished and had left.
On the case for the plaintiff, she and Mr Hoppe were told that the work with the crane had been completed and that they could access their car for the purpose of loading their belongings. Once the crane had moved, they would then be able to move the car itself.
Mr Hoppe had earlier seen the crane in use. When the lifting was taking place the rear of the crane, its counterweight, swung over Mr Hoppe’s car with a clearance of only about six inches to eight inches (TP219). Having been told they could put luggage and the like in the car, Mr Hoppe took a number of items to the car-park. He made a number of trips. On one of those trips he opened the car and lifted the rear hatch. The height of the hatch in that position was such that it would be struck by the counterweight of the crane if the crane was operated as it had been earlier. Mr Hoppe commenced loading items in via the hatch believing, as he had been told, that the job was done. He crawled into the back of the car to push items against the back of the front seats. It was only a two-door car with flat area behind the front seats.
Once Mr Hoppe was in the back of the car, the crane was operated again. The counterweight struck the raised hatch, lifting it up and then folding it back over the roof of the car. The plaintiff, on her case, had come out into the car-park moments before the counterweight struck the raised hatch. Believing Mr Hoppe was at or in the back of the car and in grave danger, she screamed at the crane driver. She was not heard and the counterweight struck the hatch as previously described. As events transpired, Mr Hoppe was not injured.
The plaintiff claims that, as a result of the negligence of one or other or both of the defendants, she suffered nervous shock, developed a post traumatic stress disorder, has not been able to return to work and will not return to work in the future. The plaintiff seeks damages for all of her losses and damage that are referred to below.
The case for the crane company has two broad approaches. The first relates to the dispute on liability. The first defendant called Mr David Aitken, at that time an employee of the company who supplied the air-conditioning equipment, who was present at the time of the incident the subject of this claim. The effect of Mr Aitken’s evidence was that Mr Hoppe was not in or even near the car at the time the hatch was hit by the counterweight of the crane, rather that the plaintiff and Mr Hoppe had emerged together from the hotel and were a safe distance from the crane and their car at the time of contact.
Secondly, the crane company also took issue with the symptoms and diagnosis of the plaintiff and submitted that the plaintiff should be able to return to work within a very modest period after the finalisation of litigation. As to these points, the first defendant called Mr Simon Kennedy, forensic psychologist. The first defendant did not call any other witnesses, particularly the crane driver on the occasion in question.
The case for the hotel was to deny any liability to the plaintiff based upon the evidence from Mr Aitken. In the alternative, if liability was resolved in favour of the plaintiff then, leaving quantum to one side, the hotel submitted that the crane company should bear all or most of the responsibility for the plaintiff’s damages and loss. The hotel did not call any witnesses.
The copy documents also include Statements of Claim and Contribution Notices as between the defendants. The evidence at trial was taken for all claims and purposes.
It is accepted that if, on the balance of probabilities, the incident occurred as recounted by Mr Aitken, then the plaintiff’s claim must fail. If, on the balance of probabilities, the incident occurred essentially as described by Mr Hoppe and the plaintiff, the normal questions relating to negligence, breach, causation, loss and damage fall to be considered. The evidence requires a detailed review on the question of liability.
Review of the evidence on the question of liability to the plaintiff
Events leading up to the incident
In about mid-January, 2000, Ms Wright and Mr Hoppe left Victoria and travelled to South Australia on holidays. They arrived at the Ramsgate Hotel, Henley Beach on Monday, 17th January, 2000. They were booked in from that Monday and were due to leave on Friday, 21st January. They had stayed at that hotel on about three previous occasions in the preceding few years.
Ms Wright and Mr Hoppe saw that there had been some renovations of the hotel and that the work was ongoing. Indeed, Ms Wright said that they were told that efforts had been made by the hotel to contact them to cancel their reservations as the renovations were continuing (Wright TP115).
On previous visits provision for adequate parking was organised for guests of the hotel, but that was not done on this occasion (Wright TP21). Over the first night their car was parked in the street but there were restrictions during the day and it was not convenient to continue parking there.
On Tuesday, 18th January, Ms Wright and Mr Hoppe discussed the parking problem with an employee of the hotel, Vin, a person they knew as the Assistant Manager. It was suggested by Mr Lovell QC, counsel for the hotel, that this person’s name was Vin Giles (TP130). Vin suggested that they could use the bottle shop car-park. Ms Wright asked Vin whether that might cause problems for bottle shop patrons. Vin assured them that it would be fine for them to park there and that he (Vin) would speak to the manager of the bottle shop to let him know that they were guests at the hotel. For the remainder of their stay they used the car-park for the bottle shop (Wright TP21-22; Hoppe TP180). Over the next couple of days, Ms Wright and Mr Hoppe intended going to the beach, shopping and the like.
The car-park concerned was at the back of the hotel. On the Wednesday they had no trouble getting into and parking in the car-park (Wright TP132). There was no rope or bunting in place on any day barring access to the car-park (Wright TP132). There was no crane there on the Wednesday. Perhaps importantly, Ms Wright and Mr Hoppe saw sand in one of the car-park spaces, but the car-park itself was not undergoing any renovation (Wright TP132; Hoppe TP183, 249).
Events on the day of the incident
On Thursday, 20th January, the weather was overcast. Ms Wright and Mr Hoppe decided that they would leave a day early and commence their return to Melbourne via Victor Harbor and Goolwa. That decision was not made until about 10.20 that morning, after the normal check-out time of 10.00 a.m. Mr Hoppe went downstairs and confirmed with Vin that there would be no problems checking out early (Hoppe TP182). Vin also told Mr Hoppe that he would not then be able to get his car out because there was a mobile crane working at the back of the hotel lifting air-conditioning ducts on to the roof. Vin said that “....it would be half an hour before they were finished” (Hoppe TP182), although it may have been one of the workmen who told him that (Hoppe TP184). Mr Hoppe was not told by Vin that he could not access the car, but he (Hoppe) was not going to do so until he got the okay (Hoppe TP229).
Mr Hoppe paid the bill and went out to look for himself. He saw a large mobile crane in the car-park. It had four stabiliser bars protruding from it, two on each side. Exhibit D(1)9 shows, in a rough fashion, the general locale and the position of the car in relation to the crane and hotel. Mr Hoppe saw that the position of the crane and its stabiliser bars blocked the car from being driven away. There were no ropes or bunting around the crane or Mr Hoppe’s car; there was only a pile of sand (Hoppe TP183). Even in Mr Hoppe’s experience, when construction is being done, there are massive fences around and people whose job it is to turn others away (Hoppe TP219‑220).
Mr Hoppe saw the crane operating and the counterweight passed over the top of his car with about a six inches to eight inches clearance. He was surprised how close it was to his car (Hoppe TP221). Mr Hoppe returned inside the hotel and told Ms Wright about the crane and that it was clearing the car by about six inches to eight inches. Although Ms Wright did not think that was acceptable, she said she was not going to do anything about it (Hoppe TP184, 221; Wright TP23). They then packed their bags and took them down to the front foyer of the hotel (Wright TP23; Hoppe TP184).
After that, Ms Wright and Mr Hoppe renewed an acquaintanceship with two ladies from Ireland who had stayed at the hotel on a previous occasion when Ms Wright and Mr Hoppe had also stayed there. In the order of about two and a half hours later a workman came upstairs to an open area where they were sitting. Nearby to where all four were sitting was what was referred to as a “site office”. It was a room that had been previously used as a guest room. The man who spoke with them was characterised in evidence as a workman because of the work shorts, work shirt and work boots he was wearing (Wright TP24; Hoppe TP185). The evidence about what was said next varies a little as between Ms Wright and Mr Hoppe, although the effect is the same. Ms Wright put it in this way (TP24-25):-
“....he apologised again for having kept us....he said he was sorry for keeping us and we were right to leave. They had finished.”
Mr Hoppe said this (TP185):-
“....a workman came up and apologised about the delay. This was about two and a half hours later, it wasn’t really half an hour away....Ended up saying they had finished out the back, ‘You guys can go, can start to get your gear back’.”
Even without the invitation referred to by Mr Hoppe, the clear indication was that the job was complete and it was clear to at least pack their bags into the car. I am unable to make a finding as to the organisation for whom this person worked. Upon being told this, Mr Hoppe went downstairs to the foyer, picked up an esky and then headed around to the back of the hotel where their car was parked (Hoppe TP186). Ms Wright remained upstairs for about half an hour talking to the other ladies and saying goodbye (Wright TP27).
Mr Hoppe, upon going outside, saw that the crane was in fact still operating. He put the esky down near the front wheel of the car (TP186), near to a garden bed that was out of the way. He returned inside and brought out a box of wine. Once outside again, he saw that by this time the crane had finished lifting items onto the roof. The crane driver then climbed down and spoke to Mr Hoppe. The crane driver realised Mr Hoppe was from the United States because of his accent and they talked about a trip to the States that the crane driver had been on. Mr Hoppe talked about his holiday with Ms Wright, that they were driving to Goolwa that afternoon and were waiting for the work to be finished to pack the car. The crane driver then said, “You go ahead, I’ve got to pack the crane” (Hoppe TP186).
As appears from exhibit D(1)9, the crane stabilisers or legs were still protruding from the crane. The car had its front into the parking spot with its back to the crane. Mr Hoppe opened up the back hatch and placed the esky and box of wine inside. He then crawled in to push those items forward so as to make room for the remainder of the luggage (Hoppe TP187). While he was doing that he felt and heard the car being crunched and saw the counterweight of the crane hitting the car. As he said, he scrambled out of the car very quickly, ducked down and then went around the driver’s side and away from the car (Hoppe TP188). As he was getting out of the car, he could hear Ms Wright screaming or yelling his name. Although he was not certain about it, he thought he ended up near or next to Ms Wright. The crane driver realised what was happening, stopped and then came over and spoke with Mr Hoppe and Ms Wright. He “apologised for what had taken place, said that it’s all his fault, not to worry about it, insurance company will take care of all this” (Hoppe TP188).
The evidence from Mr Hoppe shows that the counterweight swung from roughly a northerly direction (that is, the side-street) through to an easterly direction and connected first with the non-driver’s side of the hatch and then moved so as to flatten the hatch towards the roof of the car (Hoppe TP213-217).
Taking up Ms Wright’s evidence, she finished farewelling the two ladies to whom she had been speaking (which had taken up to half an hour), went downstairs, picked up some luggage and walked out of the hotel. The route she described must have been along the outside of the hotel walking from west to east along its northern side which faced the side-street. Once she cleared the hotel, she saw a large crane occupying most of the driveway. Their car was in the second bay. She saw Mr Hoppe loading items into the boot of the car. The crane was turning. She realised that if it kept going the box at the back of the crane was going to hit the car. She screamed to get the crane driver to stop and to warn Mr Hoppe (Wright TP27-28). That was to no avail and the counterweight struck the hatch as previously described.
Immediate aftermath of the incident
As already mentioned, after the incident the crane driver apologised for what had happened, said it was all his fault and that the insurance company would take care of it. Mr Hoppe also said that Vin and Anthony (Anthony Paech, Wright TP130) came out of the hotel and told them not to worry about it. Mr Hoppe said what “....Vin ended up saying was that in the morning he said he was going to go and get me to shift the car but he got side-tracked, and so didn’t get to me” (Hoppe TP189). The hotel then paid for their lunch, some drinks and the next night’s accommodation because the car was unable to be driven. There was a suggested promise by someone from the crane company that the company would pay for their airfares to Melbourne. Nothing came of that but I disregard the import of that evidence because it is hearsay. However, according to Mr Hoppe, Anthony from the hotel told him that if Nick (the crane company) did not pay the airfares, the hotel would pay them and seek reimbursement from Nick. Ms Wright and Mr Hoppe flew home the next day but were not reimbursed by anyone (Hoppe TP191-192).
Mr Hoppe’s only injury was a graze to his shin for which one of the hotel staff members organised aspirin and antiseptic.
Ms Wright gave much the same evidence about the aftermath although, in addition, she was crying and yelling and used some fairly strong language when abusing the crane driver. She also said that Vin had said that he intended to get them to move their car but he got “side-tracked”. She confirmed that evidence in cross-examination (Wright examination-in-chief TP28-33, cross-examination TP140-144).
Ms Wright also said that she reported the incident to a nearby police station, although it is unclear whether a formal report was made or taken (Wright TP32-33; Hoppe 190-191).
Mr Aitken’s evidence on liability
As mentioned, the first defendant (the crane company) called a Mr David Aitken as to the positions of Ms Wright and Mr Hoppe at the time of the incident. In January, 2000, Mr Aitken worked for Butterfields, who were contracted to supply and install air-conditioning equipment at the Ramsgate Hotel as part of the renovations. The head contractor on the job was a builder referred to as Candetti. Butterfields engaged the crane company, N & E Enterprises Pty Ltd as a sub-contractor to lift the air-conditioning ducts onto the roof of the hotel.
Mr Aitken’s evidence touched on other relevant topics apart from the actual incident in the car-park. He said that Candetti had a site office inside one of the rooms of the hotel. He said he notified the hotel about 24 hours earlier that it was planned to do the lifting job with the crane on Thursday, 20th January. He also said that he notified the manager of the hotel, Mark, on the 20th January that the crane would be arriving in 15 minutes. Butterfields had used the same crane company on three previous occasions on the job at this hotel (Aitken TP368).
Importantly, prior to speaking with the manager, Mark, on 20th January, Mr Aitken said he saw some cars parked in the bottle shop car-park (TP369). He said the crane was booked for 10.00 a.m. and that he arrived about 15 minutes prior to the booking. The crane arrived prior to Mr Aitken going inside the hotel and speaking with the manager. The crane driver parked the crane in the street “ ‘Till we made arrangements to see if anybody was going to shift any of the cars” (Aitken TP383). There were two cars parked in the bottle shop car-park.
In cross-examination to Ms Nelson QC, for Ms Wright, Mr Aitken gave this evidence (at TP392):-
“Q.Why were you concerned to have the vehicles moved.
A.Because, in our previous experience, we found that there’s always somebody seems to come out when you’re halfway through moving equipment; that they want to shift their vehicles. We thought we’d better to get rid of the vehicles now before we put the crane into position.”
When Mr Aitken said he went inside and spoke with the manager, he told him that “....if he (Mark) wanted to have them moved, he would have to make sure they moved them prior to us parking the crane because it would block the cars off completely” (Aitken TP369). Mr Aitken agreed that he told the manager that the crane was waiting to get in and there was a hurry. Mr Aitken’s attitude is summed up in this answer: “If they were to be moved, yes, as quickly as we possibly could, yes” (Aitken TP388). He agreed he told the manager that “....we were waiting to bring the crane into position” (TP388). Mr Aitken went on to say that the manager was away for ten minutes (TP388) and then said “....that they couldn’t find whose cars they belonged to, so we would have to go ahead and put the crane in position to do the lift” (Aitken TP369). He said no cars were shifted (Aitken TP383, 388).
It is clear from the evidence of Mr Aitken that, in effect, “time was money” so far as the use of the crane was concerned and that Mr Aitken wanted the job started and finished without delay. To that end, he expressed a measure of impatience in his dealings with the manager.
After speaking with the manager, the crane was driven forward into the driveway area from the side-street. Mr Aitken was adamant there were two cars parked in the car-park of the bottle shop. He also said there was a large rubbish bin on wheels in the area where the cars were parked (TP371-372). He was the only witness who said there were two cars parked there and the only witness who said there was a large rubbish bin. It was never suggested to Ms Wright or Mr Hoppe that there were two cars there or that there was a rubbish bin of any type.

Mr Aitken was directing the crane driver from a position on the ground. He was working in conjunction with another Butterfield employee, Sean Butterfield, who was positioned on the roof of the hotel. The crane and its area of operation was not roped off with ropes or bunting of any type. There were no signs warning people away and no person to perform that task.
In cross-examination to Mr Lovell QC, Mr Aitken was asked about this topic (at TP385):-
“Q.Did Butterfields put out any markers or cones to keep people out of the carpark.
A.No
Q.Why was that.
A.Because you couldn’t get into the carpark anyway.”
The undisputed evidence in this case, including his, proved the falsity of this reason. On his own account, Mr Hoppe and Ms Wright were able to gain easy access to the car park and their car. This is one of the answers that showed Mr Aitken to be defensive.
Mr Aitken acted as the rigger. Mr Aitken was not a qualified rigger or a qualified dogman. The crane driver was the only person the crane company could supply on that day. He brought no assistance. Mr Aitken would load the ducting onto the hook and then position himself near the crane where he could be seen by the crane driver. He described the position to where he moved as being at the rear of the crane, and marked exhibit D(1)9 with a green “X” to indicate that position. That marking was on the basis that, on Mr Aitken’s evidence, the crane was further forward than where it is shown on exhibit D(1)9 (TP373, 378-9, 401). Mr Aitken was north of Mr Hoppe’s car, standing on the footpath of the side-street (TP401). When the crane driver had lifted the load into the correct position on the roof, Mr Butterfield on the roof would signal to Mr Aitken who would in turn signal to the crane driver. The crane driver would then lower the load. When the unloading was completed, Mr Butterfield would signal to Mr Aitken who would then signal the crane driver to return the hook to the ground for another load.
Mr Aitken said that, when the crane was moved to the drop-off position, the counterweight passed over the top of the vehicles by about a foot-18 inches (TP377). There were four lifts that day (TP378, 389). The incident occurred during the last lift (TP390).
Whilst that activity was taking place, Mr Aitken said that he saw a man and a woman come out to one of the cars on two separate occasions and place items in the car. He was able to recognise the man as Mr Hoppe, but was unable to remember the lady as Ms Wright. On the first occasion they opened the side doors to put things inside and, on the second occasion, he had seen them putting bags in the back of the hatch (TP378). They continued with the job even though he considered it to be dangerous for Mr Hoppe when he was accessing his car (TP391). On the last lift, the counterweight collided with the hatch (TP378-379). He had not noticed that the hatch was up despite being 15 feet away. He said the crane driver had remained in the crane from the start of the job up to that point in time (TP390).
Mr Aitken said that, at the time of the collision, he heard a scream and noticed the man and woman together at the north-east corner of the hotel building (also marked on exhibit D(1)9, this time as a circle) (TP379). Immediately following the incident, the driver brought the boom back again, across the vehicle and lowered the boom back down (Aitken TP380).
The crucial element of Mr Aitken’s evidence is that he saw Mr Hoppe and Ms Wright together by the corner of the hotel building immediately after the collision and scream, such that Mr Hoppe could not have been in the back of his car at the time of the collision. He estimated, in examination-in-chief, the period between the crane striking the car and then the scream and noticing Mr Hoppe and Ms Wright, as “seconds” (TP380). I understood that to mean a very short time, measured in seconds.
In cross-examination to Ms Nelson QC, a number of important points emerged. As touched upon earlier, Mr Aitken denied the suggestion that there was only one car in the car-park (TP400). He said there was no sand in any of the parking bays. He said there was a large wheelie bin on wheels on the southern side of Mr Hoppe’s car (TP401). From the position he was in when he was assisting the crane driver with lifting the ducts into place (described earlier), he failed to notice Mr Hoppe’s car with the hatch up. He acknowledged that he was “possibly” focussing on what the crane was doing (TP402).
Mr Aitken then gave seemingly inconsistent evidence concerning Mr Hoppe’s position when the crane was performing a lift with Mr Hoppe supposedly loading the car. At one point Mr Aitken said Mr Hoppe was putting some baggage in the side door of the car during “one part of the lift”. When confronted with how dangerous that was for Mr Hoppe and why he did not stop Mr Hoppe, Mr Aitken said Mr Hoppe only went to his car when the crane was in the north/south position, that is, during loading and not during the lift (TP402). Although it may be possible to reconcile that evidence, it showed Mr Aitken was not a satisfactory witness. Despite what he says he saw happening, at no time did he speak to Mr Hoppe (TP403). He acknowledged that when the earlier lifts were in progress, he concentrated on the job in hand, particularly watching the hook (TP406-8).
Mr Aitken gave other evidence that was internally inconsistent. I have already mentioned that he said that Mr Hoppe’s car was hit during the final lift. The counterweight of the crane struck his car and moved about a further 18 inches. Mr Aitken said that, after hearing the scream and seeing the man and woman by the hotel, the load was put down on the hotel roof and unloaded. The process of unloading took about 10-15 minutes. During that time, he had the crane under observation to make sure it did not hit anything else. The crane then swung off the car and the jib or crane itself was brought around straight (TP410-411).
Only a couple of pages later (TP413-415) he said that, after the crane hit the car, he signalled to the crane driver that the car had been hit. The crane driver then lifted the jib and turned the crane around straight, with the load dangling in mid-air for about 15 minutes (TP415). A bit later, the crane lowered the load to ground level, it was unhooked and the remaining pieces then left on the ground. The next day, Mr Aitken manhandled them on to the roof with some assistance. This latter evidence is significantly contradictory from what he had said only a little earlier. Again it causes me to view Mr Aitken as an unsatisfactory witness.
It does not end there. Mr Aitken claims to have seen Mr Hoppe and the lady together by the side of the hotel. He claims to have seen them earlier by the car. He saw the lady who screamed (obviously Ms Wright). He saw that same lady standing with the crane driver while Mr Hoppe went inside the hotel looking for the manager. Despite those opportunities for reliable observation of the features of Ms Wright, he said he “wouldn’t have a clue” what she looked like (TP422-3). I find that quite remarkable. The photographs of Ms Wright tendered at trial show her to be an attractive lady with (then and at the time of the incident) distinctive long blonde hair. Mr Aitken could not say anything about her appearance. This also causes me to regard him as an inadequate and unreliable observer.
Mr Aitken says that he saw Mr Hoppe at the side of the car and never at the back (TP424). Mr Aitken went on to say that he loaded the hook of the crane for the last lift. He signalled to the crane driver that the loading was complete and moved to a position in front of Mr Hoppe’s car. At that time, he said, Mr Hoppe was at the car (TP426). Mr Aitken then signalled to the crane driver to lift the equipment. He could not remember seeing the hatch up or down. He agreed his observation was deficient because the hatch was in fact up (TP427). It is clear to me from this and earlier evidence that Mr Aitken was not in a position to see whether Mr Hoppe was in the back of the car at the time of the collision.
Mr Aitken was asked in re-examination about the length of time, in seconds, between hearing the collision or crunch of the car, looking at the car, hearing the scream and looking at the couple on the footpath. Using the second-hand of his watch, he said that period of time was five seconds (TP429). I have already indicated that I do not regard Mr Aitken as an adequate or reliable observer for a number of reasons. There were times when he was defensive and not a satisfactory witness.
Mr Hoppe had said that, after the collision, he scrambled out of the car very quickly, ducked down and then went around the driver’s side and away from the car. Although he was not 100 per cent certain, he thought he “....ended up standing near or next to Lorraine....” (TP188). On the face of Mr Aitken’s evidence there was insufficient time for Mr Hoppe to get out of the car and move to a position near Ms Wright; Mr Hoppe would have been seen by Mr Aitken.
However, Mr Aitken’s evidence, viewed overall, does not throw sufficient doubt on the evidence of Ms Wright and Mr Hoppe which I found to be reliable, trustworthy and accurate. Mr Aitken’s evidence would not have to be far out for there to be sufficient time for Mr Hoppe to quickly get out of the car and, unnoticed, position himself near Ms Wright. I find that Mr Aitken failed to notice that.
Factual findings as between the plaintiff and defendants
I find that both Ms Wright and Mr Hoppe were honest, reliable, trustworthy, accurate and mature witnesses. I accept, on the balance of probabilities, the substance of their accounts on the question of liability. I reject the evidence of Mr Aitken because I found it to be inaccurate, unreliable and sometimes internally inconsistent. I prefer the evidence of Ms Wright and Mr Hoppe to the extent of any inconsistency with Mr Aitken.
I find factually for the plaintiff in that the incident occurred as described by her and Mr Hoppe. The position as between the defendants is considered below.
Was a duty of care owed to the plaintiff?
The plaintiff relies upon the common law principles relating to what is known as “nervous shock”. The principles in the area of nervous shock have been the subject of discussion in two recent High Court cases that were heard together, Tame v The State of New South Wales and Annetts & Anor v Australian Stations Pty Limited [2002] HCA 35; 191 ALR 449. The discussion in those cases is against the earlier decision by that Court in Jaensch v Coffey (1983-4) 155 CLR 549. The plaintiff relies upon the meaning of “shock” as described by Brennan J in Jaensch v Coffey (at 567):-
“I understand ‘shock’ in this context to mean the sudden sensory perception — that is, by seeing, hearing or touching — of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff’s mind and causes a recognizable psychiatric illness.”
As to the effect of Tame and Annetts, I refer to my earlier decision of Awad & Others v Bebnowski, Squirrell & Noarlunga Health Service [2002] SADC 157 at para.63:-
“Prior to Tame and Annetts, the law had developed what have been referred to as ‘control mechanisms’ that needed to be overcome before there could be damages awarded for negligently inflicted psychiatric injury. Gaudron J (at para.45) referred to them as the three ‘rules’, namely, the ‘sudden shock rule’, the ‘normal fortitude rule’ and the ‘direct perception rule’. The effect of Tame and Annetts is that a plaintiff now no longer has to overcome these three rules to succeed. Much of the evidence and the original submissions before me in this case were devoted to these rules and whether the plaintiff had overcome them. Although it is no longer a prerequisite to success to overcome those rules, they are still relevant factors in the determination of liability. They are relevant to whether a duty of care exists; where such a duty does exist, whether it has been breached; whether the defendant’s tort has caused the injury in question, and whether the injury was too remote a consequence of the defendant’s tort.”
Here a duty of care is imposed upon the defendants to take reasonable care to avoid the possibility of psychiatric injury to Ms Wright by their actions if a reasonable person in the position of the defendants would reasonably have foreseen that a person of normal fortitude may possibly suffer a psychiatric illness in the event of a want of care by them causing the risk of death or serious injury to Mr Hoppe. I find that the possibility of psychiatric injury or illness to the plaintiff was reasonably foreseeable. (For the moment I am dealing with the defendants compendiously.) The defendants should undoubtedly have had the partner of the plaintiff in contemplation as someone who could be affected by their negligence.
Has there been a breach of that duty of care?
There seems to be no doubt that there has been a breach of that duty of care. It was the responsibility of the defendants (again viewed compendiously) to take reasonable steps to avoid a risk of that kind. No such reasonable steps were taken. I find that there was a breach of that duty of care. (As between the defendants, see the detailed discussion below.)
Has Ms Wright suffered an injury in the form of a psychiatric injury arising from a breach of that duty of care?
This aspect of the evidence is discussed in detail below, but the medical evidence is virtually unanimous that Ms Wright suffered a psychiatric illness. I so find based upon my assessment of the evidence.
Is there a sufficient causal link between the psychiatric injury and the breach of the duty of care?
In answering this question, I have had regard to the judgment of Glass JA in Minister Administering the Environmental Planning and Assessment Act, 1979 v San Sebastian Pty Ltd and Others [1983] 2 NSWLR 268 at 269 where His Honour said:-
“The remoteness test is only passed if the plaintiff proves that the kind of damage suffered by him was foreseeable as a possible outcome of the kind of carelessness charged against the defendant: Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, at 390.”
I have also had regard to March v E & M H Stramare Pty Limited and Another (1990-1991) 171 CLR 506 as recently applied in Van Den Heuvel v Tucker [2003] SASC 110, Doyle CJ and Duggan J at paras.77ff and Gray J at paras.193-197.
I have no doubt that there is a substantial causal link between Ms Wright’s psychiatric illness and the breach of the duty of care. Indeed, on the evidence it was the only causal link.
Breach of duty of care, including position as between the defendants
Before moving to an assessment of the plaintiff’s damages, it is convenient to give detailed consideration to the breach of duty of care, particularly the apportionment of liability as between the defendants.
The very nature of the work being performed by the first defendant, the crane company, was such that it knew, or should have known, that that posed a substantial risk of danger to other people. Although there were no photographs of the crane, the descriptions of its functions showed that it represented a real danger to anybody in the immediate vicinity of it, especially when it was in actual operation. There was undoubtedly an obligation upon the crane operator to warn anyone who was in the car-park of the hotel that there was a risk to their safety. Such a warning could be provided by having a person to keep people away, a sign warning people of the danger, or some form of barricade to prevent people from entering the area. None of these things was done.
The attitude of Mr Aitken to the plain dangers that the operation of this crane represented was reckless in the true sense of that word, that is, he alluded to the danger posed by the crane but simply “couldn’t care less” and went ahead anyway. In making that comment, I have not lost sight of the fact that he was not an employee of the crane company, but he was working in conjunction with it in the performance of this dangerous task. There was no dogman, rigger or safety officer. Bearing in mind that, on Mr Aitken’s account, he saw Mr Hoppe loading items into the car on two occasions and Ms Wright on one occasion and that the counterweight swung over Mr Hoppe’s car, Mr Aitken did not warn him away or get the crane to stop while that was done. He did not even notice that the hatch was up when the incident occurred. He was so pre-occupied with getting the job done quickly that safety became a secondary issue, if an issue at all.
Further, I accept the evidence of Mr Hoppe that he was told by the crane driver that he (Mr Hoppe) could go ahead and pack the car because all he (the crane driver) had to do was to pack the crane (Hoppe TP186-7). As events transpired, the crane was put into operation again and that is when the incident occurred. I cannot make any finding whether the incident occurred during the last lift or in the process of packing up the crane. Mr Hoppe appeared to be conservative and cautious of his own safety. I do not accept that he would have been packing his car with the hatch up having previously seen how close the counterweight passed over the car, unless he had been told it was safe to do so.
I also accept that Ms Wright and Mr Hoppe were told earlier in the hotel that the job was finished and that they were right to leave (Wright TP25; Hoppe TP185). However, I am not in a position to say who told them that or where that person was from.
Although the crane company had immediate and temporary control of the car-park area where the crane was operating, the second defendant had an overarching control of its car-park. It was liable to ensure that any dangerous activity taking place in its car-park was undertaken safely for anyone who may have occasion to be in that immediate area. It was liable to supervise that activity, at the very least in an informal sense. On the evidence it did not do this at all. Mr Hoppe was told earlier that he could not get his car out because the crane was operating and that he would have to wait until it was finished.
Further, there was no proper effort made by the second defendant to ensure that Mr Hoppe’s car was not even in the car-park during this activity. Indeed, Ms Wright and Mr Hoppe were originally invited to park in the bottle shop car-park and were not told not to park their car there once the hotel learned the previous day that the crane would be attending on the Thursday. There was no warning by the hotel that Ms Wright and Mr Hoppe should not go into the car-park while the crane was there or at least when the crane was still operating. As mentioned, however, he was told that he would have to wait for the crane to finish. However, in my view, Mr Hoppe would not have entered the car-park in the vicinity of his car on the final occasion unless he was given the “go ahead” by the crane driver. To the extent it could be said that the hotel was negligent in not expressly telling Mr Hoppe to stay out of the car-park until the job was finished, that failure did not cause any loss.
One question for me is whether the obligation imposed upon the hotel extended as far as preventing anyone from entering the car-park until such time as the crane was removed. As I have mentioned, bearing in mind its apparent size and mode of operation, was there a risk of danger even being close to it such that no-one should have been allowed in the car-park until it was gone?
As against the hotel, the crane company submits that certain provisions of the Occupational Health, Safety and Welfare Act 1986 (“OHSW Act”) and Regulations place an obligation on the hotel to provide a safe workplace for workers and others who may happen to be in the area of the workplace. It goes without saying that those same provisions also apply to the crane company.

It is necessary to reproduce the relevant provisions. S.22 of the OHSW Act provides as follows:-
“Duties of employers and self-employed persons
22. An employer or a self-employed person shall take reasonable care–
(a)to protect his or her own health and safety at work; and
(b)to avoid adversely affecting the health or safety of any other person (not being an employee employed or engaged by the employer or the self-employed person) through an act or omission at work.”
S.23 of the OHSW Act provides as follows:-
“Duties of occupiers
23. The occupier of a workplace shall ensure so far as is reasonably practicable–
(a)that the workplace is maintained in a safe condition; and
(b)that the means of access to and egress from the workplace are safe.”
S.4 of the OHSW Act defines “occupier” in this manner:-
“ ‘Occupier’ in relation to a place means a person who has the management or control of the place.”
Here, I find that the hotel was the occupier of the car-park of the hotel both at common law and pursuant to the OHSW Act. There is no suggestion in the evidence to the contrary and, in any event, employees of the hotel had discussions with Ms Wright and Mr Hoppe about parking their car there initially and whether it could be moved later. Further, when the crane arrived that morning, hotel employees spoke of the car-park as an area over which the hotel had control and management. The same can be said of the reaction of employees of the hotel during the aftermath of the incident.
Reliance was also placed upon the Occupational Health, Safety and Welfare Regulations 1995 (“the Regulations”). By an application of Regulations 1.2.5, 1.2.14 and Schedule 1, it was submitted that Regulation 2.1.1 (relating to access and egress) and 2.16.1 (relating to traffic control) had application to the facts of this case. Regulation 2.1.1 (1) and (2) provides as follows:-
“Access and egress
         2.1.1         (1)    The purpose of this regulation is to prescribe standards that must be observed at a workplace so that a person may–
(a)move conveniently and safely about the workplace; and
(b)leave the workplace in an emergency; and
(c)have safe access to any place or workplace amenity.
(2)    A person who undertakes work at a workplace, or on or about a workplace, must be provided with a safe means of access to and egress from–
(a)the place where the work must be performed; and
(b)any amenities provided for the use of that person.”
Regulation 2.16.1 (1) provides as follows:-
“Traffic control
         2.16.1       (1)    The purpose of this regulation is–
(a)to regulate the movement of a vehicle entering or leaving a workplace, or used at a workplace; and
(b)to ensure that reasonable steps are taken to protect the safety of people who may be endangered while at work by the movement of vehicles that are not associated with their work.”
Reliance was also placed upon Cox Constructions Pty Ltd v Dawes (1999) 73 SASR 557 and Complete Scaffold v Adelaide Brighton Cement & Anor, a judgment of the Full Court [2001] SASC 199.
I have no trouble accepting that, generally speaking, the OHSW Act and Regulations place more onerous duties upon an occupier and others covered by the Act than does the common law. The provisions to which I have referred have application to people like Ms Wright and Mr Hoppe even though they were not employed at the place or engaged there as contractors.
Quite separate from that, the common law position is dealt with in the case of Australian Safeway Stores Proprietary Limited v Zaluzna (1987) 162 CLR 479, as confirmed in Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33, supports the proposition (Calin at 38):-
“....that, in an action for negligence against an occupier, it is necessary to determine only whether, in all the relevant circumstances, including the fact of the defendant’s occupation of the premises and the manner of the plaintiff’s entry upon them, the defendant owes a duty of care under the general principles of negligence. In other words, it is not necessary to consider whether a special duty is owed to a particular class of entrant.”
The Court in Calin went on to say (also at 38) that Zaluzna should not be taken to have overruled the principle established in Watson v George (1953) 89 CLR 409 that, if an occupier of premises agrees for reward to allow a person to enter the premises for some purpose, the occupier impliedly warrants that the premises are as safe for the purpose as the exercise of reasonable skill and care can make them.
Reference was also made to s.17C of the Wrongs Act 1936. It was submitted that there is nothing in that section which precludes the application of Calin’s case (supra). I accept that submission and, in any event, the OHSW Act imposes a higher standard of care, certainly in some circumstances.
It is appropriate at this stage to say a little of the contractual relations between the defendants and other entities. As mentioned, the second defendant (the hotel) contracted with Candetti Constructions Pty. Ltd. to effect the renovations. Candetti contracted Butterfields to supply and install the air-conditioning. In its turn, Butterfields engaged the first defendant, N & E Enterprises Pty Ltd (the crane company) to lift the ducting onto the roof of the hotel. Pursuant to clause 13 of the contract between the hotel and Candetti, Candetti was “....responsible for all construction means, methods, techniques, sequences and procedures employed and to be employed by him in and about the execution of the Contract Works....” Whilst it was not suggested by the hotel that there was a delegation of its duty of care to people such as Ms Wright and Mr Hoppe, the responsibility for safety measures, such as ropes and cones, lay with the crane company, Butterfields and back to Candetti.
Viewed overall, the submission on behalf of the hotel (the second defendant) is that it did not breach a duty of care or, even if it did in minor respects, the actions of the crane driver constituted a novus actus interveniens. Reliance was placed upon the well-known case of March v E & M H Stramare Pty Limited and Another (supra), particularly at 510-1, 515-519 and 522-3.
The essence of the case for the hotel was that Mr Hoppe had no intention of going into the car-park until he was given the all-clear to do so. As I have found, he only entered the car-park because he was led to believe it was safe to do so. The crane driver then embarked on an operation of the crane that involved great danger to Mr Hoppe. The hotel argues that, even if there were some minor failings by it, the negligence of the crane driver was so unexpected and great that it amounted to an intervening cause that amounted to the only cause.
I have already dealt with Mr Hoppe not entering the car-park until given the all‑clear, even though he had not been told to stay away until the job was finished. The only additional matter to be mentioned is that the hotel does not appear to have made any inspection of the area where the crane was operating. If it had done so, it would have seen that there were no ropes, fencing or signs warning of the danger. At the very least some inspection should have been undertaken, but there is no evidence it happened. To return to the question I posed earlier, “Should the hotel have warned Mr Hoppe to stay out of the car-park until the crane was removed?”, in my view it should have. There was a real risk that, by virtue of the size of the crane and the nature of its operation, its use, even if being “packed up”, represented a substantial danger to anyone near it. There was always the danger of mishap or mistake in its operation such that everyone should have been kept well clear until it was gone. There was a need to guard against stupidity, forgetfulness and ineptitude. In addition to that, there was a failure to meet the high standard imposed by the OHSW Act.
Having made that finding, the force of Mr Lovell’s point needs to be acknowledged that the actions of the crane driver were grossly negligent. However, in my view, his actions were not such as to amount to a novus actus interveniens. Applying what I hope is common sense and experience, I find that the negligence of the hotel (second defendant) was a cause of the incident.
As between the defendants I apportion responsibility as to 80 per cent to the first defendant (the crane company) and 20 per cent to the second defendant (the hotel).
Assessment of quantum
As mentioned, there seems no doubt that Ms Wright suffers from a genuine psychiatric illness caused by the negligence of the defendants. I review that evidence in some detail below. One of the major questions is whether she will be able to return to work at some time in the future. A resolution of that and other questions requires a consideration of the aftermath of the incident, both short and long term, and her background.
Subsequent events in Melbourne
I have already touched upon the fact that Ms Wright and Mr Hoppe returned to Melbourne by air the following day, the Friday. Despite assurances, their air travel was not reimbursed. Ms Wright was due to return to work the following Thursday, Mr Hoppe on the Monday following their return.
Whilst working in the garden on the Saturday afternoon, Ms Wright realised, possibly for the first time, that Mr Hoppe could have been killed in the incident in Adelaide. That night and the next day she was crying and became distraught when thinking about and recounting those events. She went to see her general practitioner, Dr Ratnam, on the Monday. She said that then her speech was very halting, breathing shallow, pains in the chest and shoulders, holding herself rigidly and staring off into space. She was referred to psychologists and psychiatrists. She described more frequent breathing with speech, she was frightened of her breathing/speech and for a time refused to speak. Sometimes she cried uncontrollably and would be tearful when thinking about the incident or attending for treatment. When she returned to work on 27th January, she was there for barely an hour. When she recounted the incident her speech was affected and she became teary. She has not attempted to return to work since then (TP34-37).
The plaintiff’s background
Upon leaving school in 1970, Ms Wright gained employment with Colonial Mutual Life Insurance as a secretary, working her way up to being the secretary to the Victorian Branch Manager. She finished there in January, 1975 just prior to her son Travis’ birth. She had married during the course of that employment. Her daughter, Melanie, was born in August, 1977. She separated from her husband in 1981. Prior to that time she obtained part-time employment as the assistant to the Managing Director of Australian Alliance Import Export Pty. Ltd. (TP37-38).
After separation she studied at Deakin University, first obtaining a Bachelor of Business and then a Bachelor of Education. During the course of that study she worked for the Australian Road Research Board and then as head of the business faculty at the Oakley Greek Orthodox College. The latter position involved developing a number of curricula and teaching. In 1992 she obtained employment with the Technology Management Centre at Deakin University, writing Information Technology manuals for training students off campus in Australia and South East Asia.
In 1987 she obtained employment in the Information Technology Department of the Chisholm Institute of TAFE. She was employed at Chisholm immediately before the incident on 20th January, 2000. She was involved in teaching first and second year Information Technology students. She also did some night-time teaching.
Effects of the incident
Since the incident she has been unable to work because she cannot speak properly, not only in a teaching environment but also over the telephone and everyday exchanges in the workplace. She said, and I accept, that she enjoyed her work and worked hard to achieve it (TP41).
Apart from her work, Ms Wright had a full and active social life which included entertaining, cooking, recreational activities and sport. She said that she no longer does most of those things because of ongoing speech problems, noises that trigger distress or “an episode” or there are simply too many people. Her self-confidence was significantly affected.
Ms Wright’s manner of speech varied over the time she was giving evidence. Apart from being nervous initially, her voice was low, breathing shallow, much like a stutter or stammer. As her evidence unfolded those features became less obvious, but once she was asked to recall events surrounding the incident it seemed to trigger a significant regression in speech. Some noises within the courtroom brought about the same reaction (TP42-48).
As to her sleep since the incident, initially she slept for up to 16 hours which has reduced to about 10 hours per night. She described how she has horrible, “hallucinatory type” nightmares (TP46). Her hair and weight have been adversely affected, her hair becoming grey and she has put on two stone in weight. She has had a variety of medication since the incident and this, along with her sedentary lifestyle, may account for the weight gain.
Relationships have also been adversely affected. For about twelve months her father found her speech condition difficult to deal with. Not surprisingly, the combination of all the changes she experienced and continues to experience have brought great stress to her relationship with Mr Hoppe. They remain together even though there have been times when it did not look like that relationship would survive.
I accept that Ms Wright wants to return to work and has tried very hard to do so. Her job with the Chisholm Institute was held open until February, 2003 (TP50). That job is now no longer available. Ms Wright has been notified that she has been granted a form of permanent disability pension. She sees herself as being fifty years of age, on the “scrap heap”, and unemployable. As she sees it, one of the main problems is the way in which she speaks. Combined with that is her age, diminished self-confidence and the fact that she has now been out of the workforce for three and a half years. Even if she was able to be in a position to return to work in six to twelve months time, by then she would be four to five years behind in a knowledge of information technology developments. She has become almost reclusive subject to her involvement with family and close friends (TP51-55).
The plaintiff has also had to fly to Adelaide a number of times for various pre-trial proceedings. I accept that she is unable to undertake those trips unaccompanied. As of 31st January, 2001, so much was confirmed by her treating psychologist, Dr Bruce (see exhibit P8). Special damages have been agreed (exhibit P15) which includes a component for travel at $838.10. As with the other items of agreed special damages, the defendants agree that the amounts have been spent and the rates charged are reasonable, but do not agree that the items of special damages relate to treatment necessary for the plaintiff’s condition. There is no other evidence or agreed fact. These trips were not for the purpose of treatment and the amount allowed for travel is insufficient for this plane travel and must refer to travel to and from medical appointments and the like.
The remaining topic that needs to be considered at this stage relates to voluntary assistance. Ms Wright says that, since the incident, Mr Hoppe has done the shopping because of the noise at the supermarket and the risk of an episode if harsh or unusual noises occur. Presently she is able to undertake small shopping trips in the local area (Wright TP61). Mr Hoppe said that, in the first 18 months after the incident, he did most of the household tasks (Hoppe TP195), including cooking, cleaning and shopping. Previously those tasks had been shared but Ms Wright would undertake the major portion (Hoppe TP253). Mr Hoppe said that situation (in the first 18 months) was brought about by Ms Wright’s decreased energy levels and that doing household tasks took her longer than normal. Mr Hoppe estimated that in that period his contribution to the household duties would have been 15-20 hours per week (Hoppe TP251-2). After the incident they stopped using household cleaners (two cleaners for three hours) because of the cost and that Ms Wright did not like people coming into the house. In the last 18 months Mr Hoppe said that Ms Wright had assumed some of the household tasks, but that he continues to do the entire household shopping because a supermarket has too many triggers for Ms Wright (Hoppe TP195; Wright TP48). Ms Wright said that she infrequently helps with the garden (Wright TP162-3) and that she no longer does the lawn mowing.
Medical evidence, including prognosis
Ms Wright called Dr Kalnins, a forensic psychiatrist, as to her psychiatric injury and prognosis. His reports are contained in exhibit P2. Ms Wright also called and relied upon the reports of Dr Le Bas, consultant psychiatrist, his reports being exhibit P3. Further, Ms Wright also relied upon the reports of Dr E Bruce, counselling psychologist, her reports being exhibit P4. It was sought that Dr Bruce attend for cross‑examination but that was not possible because she was seriously ill, as supported by a brief report from her treating specialist, Professor Richardson (see exhibit P1). I will approach her reports on the basis that she has not been subject to cross-examination and that there had been a failure to comply with the Rules. Notwithstanding those matters, but with those limitations, I admitted the reports pursuant to s.34C of the Evidence Act.
The first defendant also called Dr S. Kennedy, clinical and forensic psychologist, through whom two reports were tendered dated 22nd January, 2002 and 14th March, 2003.
There seems no doubt, and I find, that Ms Wright sustained a Post Traumatic Stress Disorder (“PTSD”) as a result of the incident on 20th January, 2000. The various reports outline the symptoms, particularly “....an uneven speech pattern with dysphonia and stammering. This appeared worse at times of increased anxiety” (P2, report of Dr Kalnins, 29th May, 2001).
In his first report (P3, dated 28th June, 2000), Dr Le Bas, apart from confirming the diagnosis of PTSD, considered that Ms Wright “....seems to be making progress in exposure for her trauma and this will be continuing alongside the medication treatment.” In Dr Le Bas’ report of 15th August, 2000 (also P3), he had this to say:-
“Diagnostically, Mrs. Wright has a Posttraumatic Stress Disorder with associated depression. Her speech difficulty is an extension of this syndrome. Her condition has been treated with psychotherapy to date and in recent times she has been commenced on serotonin reuptake medication for her anxiety. Her condition has not shown evidence of a spontaneous nor treatment-induced remission to date and it is likely that any further progress will be gradual and incremental. It is therefore quite possible that she will be left with residual posttraumatic sequelae and in likelihood will find heavy machinery and loud noises trigger memory intrusions back to the accident. It is likely that she will require ongoing psychotherapeutic and probably medicative treatment for her condition over the next twelve to twenty-four months. Though I am not able, at this time, to offer long-term prognostic impressions, it would be suitable to re‑appraise this situation early in 2001.”
His report of 6th December, 2000 (P3) reflects some gradual and incremental improvement of which he spoke, as does Dr Bruce’s undated report (P4). However, in Dr Le Bas’ report of 9th July, 2001 (P3), improvement was not observed. He said:-
“Lorraine came back to see me after a long spell. Her condition remains relatively unchanged with ongoing startle reaction, staccato speech and general social withdrawal. It was exacerbated recently by the clearing out of her desk at Chisholm along with a complication to the legal case.
She remains disenfranchised from her work and feels humiliated about the impasse that her condition has imposed. She is troubled by intense dreams at the present time.”

In his report of 29th May, 2001 (P2), Dr Kalnins had this to say:-
“3.1.9 Whether, in your opinion, Ms. Wright has suffered any form of permanent residual disability as a result of the incident and, if so, the extent of any such disability:
I think it is too early at this stage to state whether there is likely to be permanent disability. Post Traumatic Stress Disorder usually follows a course in which symptoms gradually subside. I note that some of her symptoms such as nightmares are already beginning to do so. Certainly, triggering factors can be reminders such as particular noises etc., but as to whether these will persist to the level of a particular disability that interferes with her life and level of functioning can be assessed after her treatment. As I have commented above physical medicine factors also need to be excluded and I gather these have not been entirely done so as yet.”
In his report of 2nd November, 2001 (P3), Dr Le Bas, concerning her prognosis, said that Ms Wright “has a disabling and long-term condition of unpredictable duration.” He also said:-
“Mrs Wright continues to suffer with Posttraumatic Stress Disorder of moderate severity. This occurs in addition to Conversion Disorder (motor – speech). The speech disorder has lessened somewhat since my first report, though Mrs Wright still complains of dysphonic episodes and is without her voice for roughly 2 days per week.”
As to returning to work he said:-
“It is my opinion that she will not be able to return to her previous work – teaching being an arduous job that requires low anxiety and demands full vocal facilities. It is possible that she may find alternate work, though this remains speculative.”
Ms Wright’s slow improvement and poor prognosis were confirmed by Dr Bruce’s report of 24th November, 2001 (P4). I have referred to all of that report but reproduce only these portions:-
“c)   Prognosis
I am unable to commit myself to the duration of Lorraine’s condition and the likelihood of her attaining full control of her speech.
d)   Return to Work
Lorraine will not recover sufficiently to return to her job which involved lecturing. Without mastery of her speech patterns, Lorraine’s prospects for employment are seriously limited.
e)   Further treatment
Lorraine will require ongoing support and psychological therapy until such time that her anxiety abates and her social and interpersonal functioning improves. I am unable, at this point, to put a time frame on this process.”
Dr Kalnins provided a further report of 29th January, 2002 (P2). In relation to a separate conversion disorder he said this:-
“I do at this stage concur with Dr. Kornan that her presentation is very much one of a conversion disorder type. It meets the DSM criteria for this and in the absence of organic pathology, I think it can be considered that the voice and speech problem have occurred as conversion symptoms as a result of the shock that she had experienced. There do appear to be some post traumatic symptoms as I had mentioned in my earlier report.”
He also provides these responses to various questions:-
“ *   Whether, in your opinion, Ms. Wright has suffered any form of permanent residual disability as a result of the incident and, if so, the extent of any such disability:
I note there has been some improvement since I last saw her and as I have commented earlier I would anticipate this will occur. I agree with comments made by others that once the stress of the litigation process is over as a result of finalisation, there will be further improvement. I would anticipate that in the 6 to 18 months following litigation a continuation of improvement can be expected. It is possible that a small permanent residual disability may exist of the order of 5 to 10 percent.
*   Whether the resolution or finalisation of the proceedings will have any effect on Ms. Wright’s condition:
Yes, the finalisation of litigation proceedings will remove the current stressors in which she has to go over the history, her complaints, talk to doctors, solicitors and others about the problem. Once this is finalised the stress will be removed and I would anticipate a more speedy resolution.
*   Your prognosis generally:
While guarded to some degree, I think ultimately the prognosis is reasonable.”
Dr Kalnins provided yet a further report of 24th February, 2003 (P2) relating, in part, to the aspects of permanent residual disability and prognosis:-
“Whether, in your opinion, Ms. Wright has suffered any form of permanent residual disability as a result of the incident and, if so, the extent of any such disability:
Again on this occasion I note there has been improvement again since I had seen her. I think that it is reasonable to consider that improvement will continue and particularly with the result of finalization of litigation there will be considerable improvement. I do note that she does have some anxiety in ‘revisiting’ the subject incident. This revisiting is necessary during the litigation process when the event has to be discussed with doctors, lawyers etc. The finalization of litigation will remove this aspect and I expect that over the next six to eighteen months there will be further improvement. A small residual disability of 5 to 10% may remain.
Your prognosis generally:
All in all I think the prognosis is reasonable.”
Dr Bruce, in her final report dated 4th March, 2003 (P4), had this to say by way of summary prognosis:-
“In my opinion, until Ms Wright’s speech facility is consistently reliable (i.e., there is no susceptibility to unexpected sounds/movements), she will be unable to return to any form of employment that requires a reliance on fluent and audible speech. Furthermore, any employment that places undue stress on her capacity to communicate will at this point undoubtedly jeopardize her recovery. Her ongoing requirement for medication is subject to an improvement in her condition and is thus unpredictable at this point.”
Dr Le Bas provided a further report on 7th March, 2003 (P3), saying this about Ms Wright’s prognosis:-
“The prognosis for Ms Wright’s condition remains much as it was in 2001. She is not currently able to work and has recovered only minimally over the time she has sought treatment. I do not believe she will be able to return to employment as a TAFE lecturer. If her current condition continues at its current level, she will remain unable to work indefinitely. Ms Wright will require a long period on medication for her condition.”
Dr Le Bas provided a final report by way of estimates for the ongoing consultations with himself, Dr Bruce and the cost of medication. As to ongoing consultations with Dr Le Bas, he anticipates seeing her about four times per year over the next three years with a consultation cost of $165.00 per session. Concerning the cost of medication, Dr Le Bas considers she will require ongoing daily medication (fluvoxamine) for the next two to five years at $21.00 per month (TP292).
As mentioned, the first defendant called Dr Kennedy who provided reports dated 22nd January, 2002 and 14th March, 2003 (D(1)18). Without reproducing all of his conclusions, he said this in his second report:-
“As indicated in the previous evaluation, Ms Wright has quite extensive skills which would need to be fully re-assessed at the time of her return to work. The ability for her to access information via the internet and email allows for increased communication with others. In my view, there are functional elements largely preventing her attempt to return to work. These are in part related to pride but also her sense of being made an invalid due to her difficulty with vocalization. I am of the view that Ms Wright would be in a position to eventually be working full-time although this process would need to be well coordinated. I would imagine the return to work process on a full time status would take approximately 6-12 months.”
During his evidence he said he noted improvement in her condition between the two assessments (TP335-6):-
“A.....She improved markedly in terms of the whole variety of symptoms that she was presenting with initially. Her communication also improved markedly; her reactivity was much less in the second evaluation. The scores that I’ve cited in the evaluation itself indicate that her anxiety levels, her levels of depression, her overall levels of post-traumatic stress disorder symptoms and as indicated, her ability to communicate, markedly improved in the second evaluation.
Q.Does the improvement noted between early 2002 and 2003 give you cause for optimism for her continued improvement.
A.Yes, it indicates initially, that clearly her condition is not stable which is positive and that she is making active gains through the treatment that she has been involved in but also I think through the active rehabilitation process itself so I think it bodes well in terms of her prognosis overall.”
He was also of the view that her condition would further improve upon finalisation of the litigation and, additionally, treatment would then be more effective. He was of the view that she would require ongoing treatment and medication for around two years, reducing over time. He estimated that an appropriate rehabilitation programme designed to get her back to work would cost about $5,000. In his view, Ms Wright should be able to return to work within a six-month period, reaching full‑time at the end of twelve months. During examination-in-chief he gave an answer with which I agree and adopt (TP340-1):-
“A.One of the marked features of Ms Wright is that she has - she is very bright; she is intellectually very sound; she has very broad skills, having worked across a variety of different areas, particularly in the education area, but I noted that she has also worked largely in the administration area and secretarial areas and then moved into information technology. She really is an individual with quite unusual levels of skills and an ability to - clearly, she has an ability to synthesise information, pass that information on as a teacher, put courses together, and organise information in a way that is meaningful to others. She has, clearly, been a very talented person in her work life and those skills, largely, are intact, based on my evaluation. The difficult aspect, of course, is that her - that she has had a bit of time off work and, you know, the loss of confidence will take a little bit of time to return.” (See also TP346.)
I add these comments of my own. She is what I would call a “self-starter”, she worked while putting herself through university. At that time she had two young children and had meningitis during her third year of one of the courses.
Dr Kennedy also expressed the opinion that Ms Wright not only has a PTSD but also a conversion disorder. As I understood the evidence, a conversion disorder arose here in the form of disfluency because of a vulnerability or proneness following the PTSD. Dr Kennedy acknowledged that Ms Wright’s fluency problems would, at present, prevent her from lecturing but took the view that there were many other jobs she is capable of doing that do not involve that level of communication (TP357). He also acknowledged that it would be harder for Ms Wright to adjust to a work environment given possible inter-personal conflicts, pressures and deadlines (TP363). Further, he acknowledged that her symptoms would not completely resolve, but that she will get the greatest gains if she returns to work (TP364-5).
I turn now to the evidence of Dr Kalnins and Dr Le Bas.
Dr Kalnins reiterated his view that, with the finalisation of litigation, there would be further improvement over the next six to eighteen months. She would need ongoing psychiatric treatment during that period after finalisation, every one to two weeks initially and then reducing according to her needs. Following that, she would consider what she could do. He thought it unlikely that she could return to being a lecturer, although she may well be able to work in full-time employment where speaking is not the main function. He agreed she would need ongoing psychiatric support after the finalisation of litigation (TP84-5).
Dr Kalnins acknowledged that, with the cessation of litigation, treatment is more efficient because the patient tends to look forward rather than back. He considered that, after twelve to eighteen months after the finalisation of litigation, a return to low‑key work would be of positive benefit and that she would be communicating normally in a day-to-day setting (TP88).
Dr Kalnins confirmed what emerged in his subsequent reports that Ms Wright’s presentation is of a conversion disorder type whereby shock or anxiety is converted into a physical symptom. He agreed that a conversion disorder can import compensation as an unconscious but operating factor or focus and, once the litigation is finalised, the chances of recovery are greater (TP91-2, 101). I also note (TP94-96) that there is a general acceptance of what Dr Kennedy said at p.10 of his report of 22nd January, 2002 (D(1)18).
I mention at this stage that there was cross-examination of the doctors suggesting that Ms Wright may be unconsciously motivated by a secondary gain by adopting an invalid role in her personal and work relationships. I do not think Ms Wright was motivated along those lines either consciously or unconsciously. Bearing in mind her personal and work background, I reject that suggestion. I agree with Dr Le Bas in this regard whereby he dismissed secondary gains as being appropriate in this case (TP313).
Dr Le Bas confirmed his prognosis that, if her current condition continues at the level of symptoms from which she currently suffers, she will be unable to work indefinitely (TP292). He also confirmed that she could not return to being a lecturer even if there was an amelioration in her symptoms. As to the suggestion that she may be able to return to “low-key employment”, he had this to say (TP293-4):-
“A.I would be a bit guarded about prognostications about return to work due to the level of symptomatology which is quite moderate at the present time. It may be that it will make some amelioration after the litigation. That’s possible but we can’t be certain. The disfluency of speech with which she suffers is such that it makes most jobs very difficult and I think it’s associated with a high degree of anxiety around performing speech tasks and I think that makes it very difficult for work. In addition to that, she suffers with quite severe noise sensitivity as a result of her post‑traumatic condition. I think she could possibly work in a closeted place but there aren’t many environments where there isn’t a hubbub of people around or machinery or cars going past making loud noises so I think these sort of things make it quite difficult for her to return to work. I can’t be 100% about that but certainly I’m guarded about a return to work.”
Dr Le Bas agreed a number of factors may assist in Ms Wright’s recovery: returning to work, a strong family support, a positive approach to life previously, finalisation of litigation and hypnotherapy. In Dr Le Bas’ opinion there has been some improvement in Ms Wright’s condition taking her from a severe category to a moderate category (TP298). There has been modest improvement, although limited (TP300). Dr Le Bas also agreed that Ms Wright will feel the cessation of the Court case to be a really positive step (TP309, 310, 316).
Dr Le Bas also gave evidence about pre-incident stressors experienced by Ms Wright in her workplace at the Chisholm Institute. Dr Le Bas had more information about the Institute than came from Ms Wright because his wife worked there and he had other patients who worked there. The doctor was satisfied that any problems in the workplace were not the aetiologic causes of her concerns (TP323-4). That assessment accords with my view of that aspect of the case.
Discussion - findings on prognosis
A substantial part of Ms Wright’s claim relates to whether her condition, particularly her dysfluency, will improve sufficiently to enable her to return to work and, if so, when and doing what type of work. It seems clear from the evidence and medical and psychological reports that her speech showed positive signs of improving in the early stages. Subsequently, little if any progress was seen in that regard despite that initial improvement and professional assessments that her prognosis was reasonable, although somewhat guarded. Her dysfluency, in its turn, causes anxiety or further anxiety, depression and a diminished self-confidence. Inter-related with that are noise triggers that cause her to recall the incident. From the evidence and from my own observations, the types of noises that act as a trigger are loud, harsh noises, particularly glass breaking and metal on metal. As I noted earlier, the speech difficulties she had during her evidence were mainly when recalling and recounting the events surrounding the incident. At other times, although a little halting and soft, she spoke fairly well.
Allied to those matters is the extent to which finalisation of the litigation will lead to an improvement in her condition. Although their views were different as to the possible extent of improvement after the finalisation of litigation, Drs Kalnins, Le Bas and Kennedy thought treatment would then be more effective. Their views also differed concerning the period over which any such improvement may occur. Dr Kennedy thought it could be achieved over a six to twelve month period; both Drs Kalnins and Le Bas were more guarded and thought a longer time-frame was necessary. Dr Le Bas thought that, if her current level of symptoms continued, Ms Wright would be unable to work indefinitely.
None of the doctors discounted that she could possibly work in a quiet place or in low-key employment with a subdued work environment.
Based upon the medical and psychological evidence surveyed at length above, and upon my own assessment of Ms Wright having seen and heard her at length in the witness box, she will not be able to work again as a lecturer. Further, she will not be able to undertake any employment where use of her voice is a central feature of that employment. Yet further, there is no doubt in my mind that she will need ongoing psychiatric and psychological intervention for some time, along with medication for an even longer period. This aspect is discussed further below.
Having regard to all the evidence and reports, I am of the opinion that, given the finalisation of litigation in conjunction with treatment and medication, Ms Wright will be able to return to work. I refer again to the evidence of Dr Kennedy (at TP340-1). Clearly, Ms Wright has been hard-working, resourceful, capable, positive and confident. She has displayed initiative. Given time, those characteristics will again come to the fore. Because I consider her condition will improve significantly, I am not as pessimistic as Dr Le Bas. On the other hand, I am not as optimistic as Dr Kennedy given her present condition. Allowance should be made for an appropriate rehabilitation programme designed to get her back to work. In my opinion, she should be in a position to return to full‑time work in about a further eighteen months, that is, by the beginning of 2005. I would expect that her return to full-time work will be gradual. She should be in a position to return to part-time work in about the middle of 2004, building to full‑time over about a six month period.
In reaching this decision I am conscious of the fact that, by the middle of 2004, she will have been out of the workforce for four and a half years. If she chooses to go back into the information technology area, there is a lot of ground to be made up. In any event, there will need to be a substantial rehabilitation programme. Because of the view I have reached about the length of time it will take her to return to full-time employment, the allowance for the services of a return-to-work provider will be $10,000.

The position is further complicated by the fact that it is highly unlikely that Ms Wright will obtain employment that pays as well as her lecturing position. Not only will a future position need to be low-key, it will be less remunerative. There will be a loss of earnings in the six months to which I refer and from the beginning of 2005 and onwards. The diminution of Ms Wright’s earning capacity has been productive of financial loss: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; Medlin v The State Government Insurance Commission (1994-1995) 182 CLR 1. That reduction in earning capacity was brought about by the incident on 20th January, 2000.
As to the age at which Ms Wright believed she would retire, she said that she believed she would have retired at age 60 years on the assumption she had remained in the workforce in the normal way (TP123-4). I accept that evidence and find she would have retired at age 60 years. Her date of birth is 11th August, 1953. At the time of this incident she was 46 years of age. She will be 50 years of age in August this year. On the basis of my findings, she should be in a position to work full-time at the beginning of 2005, at which time she will be 51 years and five months of age. The calculation of future loss of earnings will take into account a period of six months working part-time and a period of eight years and seven months working full-time, both at reduced earnings and reduced for contingencies.
Assessment
Non-economic loss
Earlier in this judgment I have dealt at length with the medical, psychiatric and psychological results of this incident upon Ms Wright. Her condition is very real. There was some improvement in that condition in the early stages but that improvement has now all but stalled. Ms Wright has made genuine efforts, in conjunction with her medical and psychological advisers, to get better. There has been some success. The extent of her physical activity has increased. There is at least entertainment with family and close friends. Ms Wright is gradually doing more but she is well short of the full and active life she led before. She is gradually becoming more positive. As I have indicated, in my opinion, there will be significant general improvement with the finalisation of the litigation and continuation of treatment.
There can be no doubt that Ms Wright suffers from a severe and demoralising illness. For her, life was turned very much on its head. A happy, rewarding and fulfilling life virtually became the opposite. In a very real sense there has been a substantial loss of enjoyment of life which, although on the improve, will only gradually improve. I am not surprised she turned to alternative remedies. That was a sign of desperation, not some form of psychological predisposition to this type of illness. I do not consider there was an enhancement of her illness or symptoms. Further, on the evidence, I do not consider her workplace had stressors or causes of anxiety out of the ordinary.
Ms Wright has been offered treatment in the form of medical hypnotherapy. Thus far she has declined the treatment. On the evidence this is the only form of treatment she has declined. Essentially, it is a relaxation therapy that may assist to reduce anxiety and possibly the speech problem (Kalnins TP86-87). It is not known whether it would be successful. Ms Wright’s attitude is that she wants to keep open that remaining mode of treatment. She knows it may be helpful but also recognises it may not. She fears that if she undertakes the treatment and it is unsuccessful then all hope of recovery is lost.
I do find that she is doing her best with the medical, psychiatric and psychological treatment that is both appropriate and recommended. Although I have formed the view that there should be significant improvement over the next twelve to eighteen months, there will still be a residual permanent disability. That disability will be of a low order.
Apart from the evidence of Ms Wright and Mr Hoppe concerning the effects of the incident upon Ms Wright, I mention also the evidence of her daughter, Melanie, and a good family friend, Mr Enticott. His son, Michael, is Melanie’s partner. Melanie had a close relationship with her mother. In her adolescent years the two played volleyball and beach volleyball. Ms Wright and Melanie were both members of the North Melbourne Football Club statistics team. Although Melanie moved out into a flat of her own in 1996, she maintained close contact with her mother for their sporting activities, social and family occasions. Melanie described her mother as “a very outgoing person; very much the life of the party....” (TP274-278, Wright TP50). Before the incident in Adelaide, Melanie agreed her mother did a lot of things around the house but her mother and Mr Hoppe shared or split the jobs that needed to be done (TP283). Soon after the incident in Adelaide in January, 2000, Melanie described her mother as very shaky, short of breath when talking, withdrawn and teary (TP278-9). Thereafter, Melanie saw her mother less often because her mother did not want to see her or her mother’s friends.
Ms Wright withdrew to Rhyll on Phillip Island for some weeks. During that time her voice all but went. Melanie then started staying on a regular basis at her mother’s and Mr Hoppe’s from Sunday to Thursday. She did that to offer emotional support and undertake some of the tasks that her mother could not do. Ms Wright became the focus of support by Melanie, Mr Hoppe and family friends. Melanie has also travelled with her mother because her mother is unable to travel unaccompanied.
As mentioned, Mr Enticott was a good family friend of many years standing. Prior to the Adelaide incident, he described how Ms Wright and Mr Hoppe would regularly entertain at their home, describing Ms Wright “....as outgoing, vivacious, friendly, and the life of the party....a very normal happy-going wife and mother” (TP263). After the incident he saw Ms Wright in late January. He described the changes in her as “profound” (TP264). There was a high level of anxiety, she suffered from panic attacks and her speech stuttered. These problems, particularly panic attacks from sudden loud noises, continued to the time of trial, although she is better now than she was initially (TP266). He described her as having become “....almost a recluse.” Her long flowing hair has gone and she has aged dramatically (TP267).
Some criticism was levelled at Ms Wright from her evidence at TP53. She was giving evidence about being unable to travel unaccompanied. There was a letter from Dr Bruce in support of that. She gave these answers to these questions:-
“Q.Were you able to undertake those trips on your own.
A.No, I had a letter from Dr Bruce that I can’t travel unattended. I don’t even fly to Queensland to visit my grandson and granddaughter and son.
Q.The only trips you’ve made are trips of necessity.
A.Yes.”
I understood the Queensland trips to be ones where she was unable to travel unaccompanied. The “trips of necessity” I understood to refer to trips to Adelaide that are now made only as a necessity for proper pre-trial and trial purposes.
In assessing damages for non-economic loss, I have had regard to awards for Post Traumatic Stress Disorder but, having said that, none that I have been able to find is quite like this. For pain and suffering and loss of enjoyment of the amenities of life, I award her $55,000. Of that sum, I apportion $40,000 for past detriments.
Interest
Ms Wright is entitled to interest on this heading of loss (see s.39 of the District Court Act). Interest is allowed only on the past loss on the basis that Ms Wright has been kept out of her money. The period of the calculation is a matter for the discretion of the Court. In this case, there is no reason why the period of the calculation should not date from the incident (see Wheeler v Page (1982) 31 SASR 1.) The interest rate for the calculation is 4 per cent per annum (see MBP (SA) Pty Ltd v Gogic (1990-1991) 171 CLR 657). The allowance should be discounted to take account of the accumulation of the principal sum over the period of the calculation. On that basis there will be an allowance for interest of $2,800 (i.e. $40,000 x 4% per annum x 3.5 years ÷ 2).
Past economic loss
There are a number of aspects to this. As mentioned, Ms Wright’s position at the Chisholm Institute remained available until February, 2003. Since the incident she has taken leave in the form of sick leave, annual leave and long service leave and been paid various amounts for those periods. From the date of the incident to trial the net salary that would have been payable to Ms Wright was $120,284. Taking into account the various leave payments totalling $38,562, the net loss of earning to trial is $81,722. The net weekly loss in the period immediately prior to trial was $764. From the beginning of the trial to judgment there is a further period of 15 weeks at $764 per week, being a total of $11,460.
Under the heading of past economic loss up to the time of judgment there will be an award of $93,182.
Interest
The plaintiff is entitled to interest on the past component of economic loss (s.39 of the District Court Act 1991). The period of the calculation should not be for the whole period from when the liability arose. As I understand the evidence and exhibit P19, the plaintiff was paid in the normal way from the date of the incident to the 30th June, 2000. Therefore, in those early stages, she was not kept out of any money. The period of the calculation should be from 1st July, 2000 to the date of judgment, discounting only for the slow accumulation of the loss over a period of three years.
Since the allowance for past loss of earnings is calculated on the value of the losses as they occur, the prevailing commercial interest rates are appropriate. The appropriate interest rate is 6.5 per cent being the approximate average of the commercial rates prevailing between 1st July, 2000 to the present time (see Third Schedule, Supreme Court Rules). Accordingly, the calculation ($93,182 x 6.5 per cent x 3 years ÷ 2) results in an allowance for interest of $9,085.
Future economic loss
There are a number of components to this loss:-
1.I have detailed above that, in my opinion, the plaintiff will be unable to work in any capacity for the next twelve months. There is no evidence of her potential salary other than what it was in the period immediately prior to trial, that is, a gross annual salary of $53,620, being $764 net per week. There will be an award of $39,728 for the first period of twelve months.
2.I have found earlier that, after the first twelve months, there will be a period of six months when the plaintiff should be able to work part-time (building up to full-time work). Doing the best I can on the material before me, I estimate that she will be working at about one-third of her previous earning capacity and that two-thirds of her previous earning capacity has been lost by virtue of this incident. On that basis the two-thirds earning capacity, which has been productive of a loss of earnings, should be the subject of an award to that extent. Two-thirds of $764 is $509; for 26 weeks that represents a loss of $13,234. There will be an award of $13,234 for the next six month period.
3.As I have also found above, after the period of 18 months from judgment, the plaintiff should be able to return to full-time employment. Any such employment would not pay as well as the lecturing position. I am also conscious of the fact that some allowance must be made for the possibility that she may not be able to secure any employment. With improvement in her illness and the back-to-work programme envisaged, she will present well for employment.
With employment, the plaintiff would be working at about two-thirds of her previous earning capacity. I need to also make allowance for her not gaining full-time employment. Again, doing the best I can, and acknowledging that there are various uncertainties, I allow a 50 per cent loss of earning capacity from early 2005 until the age of retirement, namely, 60 years. That is a period of eight years and seven months at the rate of a net loss of $764 per week. 50 per cent of $764 is $382. Eight years and seven months equals 446 weeks at $382 per week which totals $170,372.
There will be a further award of $170,372 for the loss of earning capacity for the balance of the plaintiff’s working life.
The total of these three components is $223,334 for all future loss of earnings. The question arises whether that amount should be discounted for the vicissitudes of life. There is no sufficient justification to discount that award. I have also given consideration to whether that award should be increased by positive prospects but decline to do so on the basis that there is insufficient material.
This loss attracts no interest (see Thompson v Faraonia (1979) 24 ALR 1).
Also, as previously indicated, the plaintiff is to be paid for the services of a back‑to‑work provider which I previously fixed at $10,000.
Past gratuitous services/voluntary assistance
I permitted evidence under this heading over an objection. The pleadings do not seek an award under this heading. However, the first defendant can hardly have been taken by surprise and the topic is adequately dealt with in the evidence. It may have an impact on costs.
After the first month, I am satisfied that the rendering of household help by Mr Hoppe has saved the cost of engaging another person to provide those services. The need for those services has been brought about by the negligence of the defendants. The facts of this case are unusual in the sense that they dispensed with the existing cleaning people partly because of the cost and partly because Ms Wright did not like having them in the house. It is not appropriate to disallow an award under this heading for that reason. Mr Hoppe’s help was necessary and occasioned by the defendants.
The principles applicable in this area have been the subject of statement and consideration by the High Court and recently by the Full Court of the State. The two High Court cases are Van Gervan v Fenton (1992) 175 CLR 327 and Grincelis v House (2000) 201 CLR 321. In Grincelis, the majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) summarised the effect of Van Gervan v Fenton (at 327):-
“In Van Gervan v Fenton (1992) 175 CLR 327, it was held that the true basis of a claim for damages with respect to care or services provided gratuitously to a person who has suffered personal injury is the need of the plaintiff for those services, not the actual financial loss suffered as a result of their provision. Accordingly, it was held in that case that a plaintiff’s damages on this account are not to be determined by reference to the actual cost to the plaintiff of having the care or services provided, or by reference to the income foregone by the provider of the services, but, generally, by reference to the market cost of providing them. Neither party sought to reopen the decision in Van Gervan.”
(See also Short v Wenham, Full Court, [2002] SASC 369 and Schwartz v RESI Corporation, Full Court, [2003] SASC 118.)
In my view, the “....objective value of the services which the plaintiff reasonably needs” (Van Gervan v Fenton at 337) will be met by an award of damages based on the market value of using outside domestic assistance.
The plaintiff tendered a document detailing the cost of domestic assistance from an organisation known as “Dial-an-Angel” (exhibit P14). That document reveals two methods of costing domestic assistance. One is where the client pays the worker direct (comparable to a private contractual agreement), the other is where Dial-an-Angel is contracted by a third party to supply the care. In this case the first method seems the more appropriate of the two. There is no proper reason why the plaintiff could not pay the worker directly. The award will be calculated on that basis.
The evidence concerning the assistance rendered by Mr Hoppe was reviewed earlier, including that from Melanie Wright. Although the household tasks were split or shared, I find that, prior to the incident, Ms Wright shouldered the burden of the major portion of that work. I find that the incident created a need for Mr Hoppe to provide voluntary assistance of 20 hours per week for the first 18 months after the first month. Exhibit P14 states that the first three hours (being the minimum) costs $61.00, with $13.00 for each additional hour. On that basis, the cost is $282.00 per week. For the first eighteen months, the amount is $21,996.
Concerning the last eighteen months, whilst Ms Wright is able to do more around the house, Mr Hoppe did all the shopping and lawn mowing. I allow four hours per week during that period. The first three hours are $61.00, plus $13.00 for the fourth hour. That period totals $5,772.
The total for past gratuitous services is $27,768.
On the evidence I am prepared to make an allowance for future gratuitous services of one hour per week for the next 18 months at $20 per week which totals $1,560.
Interest on past gratuitous services
There is no evidence that the plaintiff has or intends to pay her husband for the gratuitous services for which there has been a substantial allowance. In those circumstances it would seem inappropriate to award any interest. However, s.39 of the District Court Act dictates that the Court will include a component for interest “unless good reason is shown to the contrary”.
A statutory provision materially comparable to that which applies in this State came before the High Court for consideration in Grincelis v House (supra). The Court held (by majority) that interest should be allowed on a claim for damages for past care or services provided gratuitously to a person who has suffered personal injury. Further, the Court held that the statutory provision did not warrant declining to award interest where, as here, damages have been assessed by reference to costs prevailing from time to time during the period between the cause of action accruing and judgment.
For these reasons, in this case, the award attracts interest on an ordinary commercial basis at the rate set out in the Third Schedule of the Supreme Court Rules. The calculation ($27,768 x 6.5% x 3 years ÷ 2) results in an allowance of $2,707. The loss accumulated over a period of time from January, 2000, and hence I have divided the amount by two.
Special damages
A list of agreed special damages was tendered. As already noted, the defendants agree that the amounts have been spent and that the rates charged are reasonable. Whilst the defendants do not agree that the items of special damages relate to treatment necessary for the plaintiff’s condition, I find that they do. Special damages totalling $13,410.05 will be awarded.
Interest on special damages
The plaintiff is entitled to interest on the amount expended (s.39 District Court Act1991). These amounts were spent over time. I award a lump sum for the interest entitlement of $250.00.
Medical treatment - future
This heading has a number of components:-
1.As indicated by Dr Le Bas, Ms Wright will require ongoing medication for the next two to five years at $21.00 per month. Although I have expressed a view about Ms Wright’s return to work, in my opinion, the medication will be required for a greater period. Four years is a reasonable period. I allow medication costs for four years at $21.00 per month, being an amount of $1,008.
2.Dr Le Bas anticipates seeing her four times per year at $165 per session for three years, being a total cost of $1,980.
3.Dr Le Bas estimates that Ms Wright will need to consult with Dr Bruce every one to two weeks with a consultation cost of about $120 per session, for at least a year after trial. In all, I allow a consultation every two weeks, at $120 per consultation, for twelve months. This allowance totals $3,120.

The total allowed for future medical treatment and medication is $6,108. There is no interest entitlement under this heading of loss.
Loss of employer’s superannuation contributions
The remaining claim for loss relates to the employer’s superannuation contributions that are obliged to be made by virtue of the Superannuation Guarantee Act, 1992. There is no reason why, as a matter of principle, this loss should not be able to be claimed. For as long as Ms Wright remained employed by the Chisholm Institute or elsewhere, her employer was legally obliged to pay superannuation contributions to a fund on her behalf at the rate of eight per cent of gross salary to 30th June, 2002 and thereafter at the rate of nine per cent of gross salary. In this case, as I understand exhibit P19, Ms Wright was paid for various types of leave during some of 2000 and very early in 2001.
As has been mentioned, in February, 2003, Ms Wright was granted a permanent disability pension. In my view her entitlement to be compensated for lost superannuation benefits is quite independent of the grant of a permanent disability pension. In any event, I do not know the value of that pension. Further, such a pension must be liable to review if Ms Wright’s circumstances change.
Up until 30th June, 2000, she was paid sick leave. Chisholm Institute was obliged to make superannuation contributions to her in that period. During the financial years ending 30th June, 2001 and 2002, she received gross salary payments (again for various types of leave) of $31,410 upon which superannuation contributions would also have been paid. However, during those financial years, the leave payments were not for the entire time. She should have received gross salary payments during those periods of $97,232. The calculation is as follows:-

Period

Weeks

Gross per week

Gross amount

1/7/00 to 5/9/00 10 $902 $9,020

6/9/00 to 31/1/01 21 $953 20,013

1/2/01 to 31/8/01 30 $972 29,160

1/9/01 to 30/6/02 39 $1,001 39,039

Total $97,232

Therefore, she should have received an additional gross salary of $65,822. She has lost superannuation contributions equal to eight per cent of that total, namely, $5,266.
From the 1st July, 2002, the calculation of gross salary is as follows (from P19):-

Period

Weeks

Gross per week

Gross amount

1/7/02 to 31/8/02 8 $1,001 $8,008

1/9/02 to 14/4/03 32 $1,031 32,992

Total $41,000

Ms Wright has lost further superannuation contributions equal to nine per cent of that total, namely, $3,690.
From 14th April, 2003 onwards there is an ongoing loss of superannuation contributions of $92.79 per week, but reducing with part-time and then full-time work. The loss of those contributions from 14th April, 2003 needs to be divided into further periods on the basis of my assessment concerning a return to work:-

Period

Weeks

Net loss per week

Total

14/4/03 to 14/7/04 65 $92.79 $6,031

14/7/04 to 14/1/05
(part-time for six months) 26 $61.86
(two-thirds lost) $1,608

14/1/05 to retirement
(eight years seven months)            446 $46.40
(one-half lost)         $20,694

Total         $28,333

The total of the loss of superannuation contributions until the plaintiff retires at age 60 years equals $37,289 (i.e. $5,266, $3,690 and $28,333). Because she has lost the benefit of these contributions based upon her gross salary, no allowance should be made for tax.
Normally, the plaintiff would not be able to receive those contributions until she retired at age 60 years. Based upon this judgment she is receiving them over a decade early. Should there be any deduction for that reason? If the money had remained in a superannuation fund for that period of time, it would have been invested in equities, bonds, property trusts etc. and (hopefully) grown in total. The plaintiff should be able to do the same with it. I am not prepared to reduce the amount to be awarded under this heading.
The plaintiff will be awarded the amount of $37,289 being for superannuation contributions lost as the result of the subject incident.
Summary of quantum
I award the following amounts:-
Non-economic loss  $55,000.00
  Interest on past component   2,800.00
Economic loss - loss of earnings
   Past   93,182.00
   Interest on past loss   9,085.00
   Future  223,334.00
Services - back-to-work provider            10,000.00
Past gratuitous services   27,768.00
  Interest   2,707.00
Future gratuitous services   1,560.00
Special damages   13,410.05
  Interest  250.00
Future medical   6,108.00
Loss of employer superannuation
  contributions       37,289.00
$482,493.05
There will be judgment for the plaintiff in the amount of $482,493.05.
I have already determined liability between the defendants as the first defendant 80 per cent responsible and 20 per cent to the second defendant.
I will hear the parties on the precise orders I make, particularly on the Contribution Notices, and costs.
In Court on Thursday, 7th August, 2003
After discussion with counsel, the judgment sum is amended in the following two respects. The amount awarded for future economic loss is reduced to $192,914.40 and the amount awarded for loss of employer superannuation contributions is reduced to $33,594.19. That results in an overall reduction of the award to the plaintiff to an amount of $448,378.24.

Period	Weeks	Gross per week	Gross amount
1/7/00 to 5/9/00	10	$902	$9,020
6/9/00 to 31/1/01	21	$953	20,013
1/2/01 to 31/8/01	30	$972	29,160
1/9/01 to 30/6/02	39	$1,001	39,039
Total	$97,232

Period	Weeks	Net loss per week	Total
14/4/03 to 14/7/04	65	$92.79	$6,031
14/7/04 to 14/1/05 (part-time for six months)	26	$61.86 (two-thirds lost)	$1,608
14/1/05 to retirement (eight years seven months)	446	$46.40 (one-half lost)	$20,694
Total	$28,333

[2003] SADC 103

24 July 2003