JOSEPH v PLATCHER and BURNS v THE NOMINAL DEFENDANT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, HANDLEY JJA and Hope AJA 4 June 1991, 10 July 1991 [1991] NSWCA 162 NEGLIGENCE — Contributory negligence — Apportionment — Motor vehicle collision at intersection — Traffic Lights — Effect of breach of regulations as to traffic lights in relation to negligence and contributory negligence — Sibley v Kais (1967) 118 CLR 424 at 427 discussed — Findings of Master as to negligence, contributory negligence and apportionment affirmed. DAMAGES — Personal injuries — interest on past general damages — MBP (SA) Pty Ltd v Gogic (1991) 65 ALJR 203 applied — Interest allowed at 2% on past general damages for whole period. Meagher JA I agree with Hope AJA. Handley JA I agree with Hope AJA. Hope AJA The two proceedings the subject of these appeals were heard together by Master Greenwood in July 1989, and the appeals and cross-appeals have been heard together by this Court. The proceedings arose out of the collision of two motor vehicles at about 10.35 p.m. on the night of 4 January 1982. The accident took place in a T-intersection which Canley Vale Road makes with Railway Parade at Canley Vale. Mr Platcher was the driver of one of the vehicles, a Ford Cortina, and Mr Burns was a passenger in his car. Ms Joseph was the driver of the other vehicle, a Holden sedan, which belonged to her mother Mrs. Margaret Joseph. Mr Platcher was driving his car in a northerly direction along Railway Parade in the direction of the intersection, and Ms Joseph was driving her car in an easterly direction along Canley Vale Road. The evidence of Ms Joseph was that as she was proceeding along Canley Vale Road, she approached a white car ahead of her which seemed to be driving in an erratic fashion. It contained a number of people who were making a lot of noise and she thought that they were probably drunk. As that vehicle arrived at the intersection, which was controlled by traffic lights, the lights facing Canley Vale Road were red, and the white vehicle stopped. Ms Joseph stopped her vehicle about ten feet behind the white vehicle. The traffic lights turned green, and the white car proceeded into the intersection and commenced to make a right turn. Ms Joseph then started her car forward and the traffic lights were still green when she passed them. Mr Platcher's car was approaching on her right, but she did not look in that direction and did not: see it before the accident took place. Mr Platcher's evidence was that the lights were green as he was approaching them and turned amber shortly before he reached the intersection. Judging that he could not stop at the intersection, he proceeded through it and collided with Miss Joseph's car. Both Mr Platcher and his passenger Mr Burns were injured, as was Ms Joseph. Ms Joseph's injuries were slight, although she was in hospital for a short time. Mr Burns' injuries were more serious and indeed he was knocked 2 UNREPORTED JUDGMENTS unconscious by the accident. Mr Platcher's injuries were devastating and he also was knocked unconscious by the accident. Mr Platcher sued Ms Joseph and her mother in respect of his injuries, and Mr. Burns sued the Nominal Defendant - Mr Platcher's vehicle being unregistered - and Ms Joseph in respect of his injuries. Mr Burns' proceedings were commenced in the District Court, but over the objection of Mr Burns, were transferred into the Supreme Court because of the pendency of the proceedings by Mr Platcher. In the District Court, the Nominal Defendant filed two third party notices as cross-claims. One of those claims was against Ms Joseph seeking contribution for her alleged negligence, and the other against Mr. Platcher as the owner and the driver of the uninsured vehicle, pursuant to s35 of the Motor Vehicle Act. These third party notices were deemed to be pleadings in the Supreme Court. Master Greenwood found that Ms Joseph was guilty of negligence and Mr Platcher was guilty of contributory negligence, and apportioned responsibility between them at 50% each. He assessed Mr Platcher's damages at $1,006,330 and entered judgment for him in half that amount, $503,165. In Mr Burns' case he found both Ms Joseph and Mr Platcher guilty of negligence and assessed damages at $16,953. He entered verdicts for the Nominal Defendant against Ms Joseph and Mr Platcher in respect of the amount of the judgment recovered by Mr Burns. Ms Joseph has appealed in respect of liability, apportionment and the amount of interest allowed on past general damages. Mr Platcher has cross-appealed in respect of contributory negligence and apportionment. Mr Burns has appealed on the ground that the damages awarded to him were inadequate. Other cross-appeals have been filed which may be said to be consequential upon the result of the Court's conclusions as to liability and apportionment, and as to interest on past general damages. Canley Vale Road ends at its intersection with Railway Parade so that vehicles travelling in an easterly direction along it must turn left or right into Railway Parade. Traffic at the intersection is controlled by traffic lights and there was a considerable amount of evidence as to way in which these lights worked. The lights included arrows for the purpose of pedestrians, but it is irrelevant to consider the effect of the arrows upon the lights in the circumstances of the case. The uncontested evidence as to the phasing of the lights was that if a car approached Railway Parade along Canley Vale Road at about 10.30 p.m. when the light showed red in that direction, it would in due course turn green and (assuming only one car had crossed the triggering device) remain green for five seconds. It would then turn to amber for three seconds and then to red for twelve seconds. Two seconds before the Canley Vale Road light turned green the northbound Railway Parade light would turn red, and would remain red for twelve seconds, that is, for two seconds after the Canley Vale Road amber light had turned red. The northbound Railway Parade light would then turn green for five seconds and then turn amber. The Canley Vale Road light would remain red for two seconds after the Railway Parade light ceased to be amber. One possible explanation for what appear to be inconsistencies in the evidence as between some of the witnesses is that there was a malfunction of the lights at the time of the accident. However, the appeal has been argued on the basis (as Master Greenwood found) that there was no such malfunction. URJ JOSEPH v PLATCHER and BURNS v THE NOMINAL DEFENDANT (Hope AJA) — 3 As I said earlier, Ms Joseph's evidence was that she went through a green light. A possible conclusion would be that she went through a red light, but in the appeal it has been accepted for Mr Platcher that she was correct in saying that she went through a green light. Mr Leslie senior counsel for Mr. Burns put shortly to the Court that the correct finding should be that Ms Joseph went through a red light, but he had to agree, as is the fact, that Mr.Burns has no legal interest in so arguing. His verdict is against both the Nominal Defendant, standing in place of Mr Platcher because his car was unregistered, and Ms Joseph. He has a personal desire that no part of his damages should be recoverable by the Nominal Defendant against Mr Platcher, but, although this is understandable, in my opinion it does not give him any standing to argue the issue which his counsel thus raised. The evidence of Mr Platcher was that the light facing him in Railway Parade turned amber from green just before he reached it and that he went through the light on the basis that it was the only safe thing to do. The Master accepted this evidence and concluded that Ms Joseph must have taken not less than ten seconds to traverse the distance from the green light facing Canley Vale Road to the point of the accident, this being the minimum time between the changing of the Canley Vale Road green light to amber, and the changing of the Railway Parade northbound light from green to amber. Mr Burns was unable to give evidence as to what lights were showing. For Ms Joseph it is strongly contended that the Master's finding in this regard must be wrong. On the basis of his findings, the Master concluded that Ms Joseph was negligent in not having looked to her right and seen the car that was approaching her along Railway Parade, and that likewise Mr Platcher was guilty of contributory negligence in not having looked to his left and seen Ms Joseph's car emerging from Canley Vale Road. He considered that each of these parties was equally responsible for the damage that ensued, and hence arrived at his apportionment of 50% each. The Master concluded that all the witnesses before him had been honest and had tried to give a correct version of the facts as they remembered them. He was particularly impressed by the evidence of Ms Joseph, whom he regarded not only as honest but as reliable. Notwithstanding this view the Master rejected one significant part of Ms Joseph's evidence. She said that not only was the light facing her green when she started to move off in Canley Vale Road, but also that it was still green when she started to make a right hand turn. The Master rejected this evidence. The Master also rejected other evidence. First Ms Joseph had made a statement to a police officer when she was in hospital after the accident. The officer's record of this statement was unsigned by Ms Joseph, and it did not accord with her oral evidence. In the statement she was alleged to have said that the traffic light facing her in Canley Vale Road turned from red to green as she approached it, and she went ahead to make a right hand turn. She did not refer to the white car nor to stopping, either behind it or at all. The Master did not accept this statement as a correct account of what happened because of Ms Joseph's condition when she made it, her evidence at the trial, and a statement of Mr Barry Foster, a bystander who said he had witnessed the accident. Mr Foster made a statement to a police officer at the scene, and signed a record of it in the police officer's notebook. However he could not be found subsequently, and only his signed statement was in evidence. Mr Foster said he 4 UNREPORTED JUDGMENTS had been standing at the south west corner of the intersection. Having described where he was standing, Mr Foster's statement proceeded: "T saw the Holden stopped at these [traffic lights in Canley Vale Road] the lights facing her turned green and she started going right [into Railway Parade]. I was looking at the lights and saw that the lights facing the other way [Railway Parade] were orange. The Cortina was moving fairly quickly,, not speeding couldn't judge the speed coming this way [north Railway Parade]. The Cortina hit the brakes but they were so close they couldn't stop." The Master said that Mr Foster had stated that "there was a white vehicle waiting at the lights in Canley Vale Road, that the vehicle turned on the green light...". Ms Joseph's Holden was "a greeny aqua colour", and the Master seems wrongly to have assumed that the Holden mentioned in the statement was the one Ms Joseph said was in front of her. However Mr Foster confirmed that Ms Joseph had driven through a green light. The Master sought to explain how Mr Foster came to say that Mr Platcher had driven though an "orange" light on the basis that the chart of the traffic light phases showed that there need only be a 2 second delay between the lights being amber in Railway Parade and green in Canley Vale Road and that it was not unreasonable to expect that a witness glancing at the lights would interpret as simultaneous changes which occurred 2 second apart. With respect to the Master, this explanation is completely at odds with his acceptance of Ms Joseph's evidence about the white car she was following, and his conclusion as to a 10 seconds delay between her passing the green light and the time of collision. If the Master was correct in holding that Ms Joseph passed the lights just as they changed from green to amber, the phasing relied on by him to found this explanation of Mr Foster's evidence was the wrong phasing. However, despite these errors in what appears to have been an attempt to reconcile all the evidence, the concession made on behalf of Mr Platcher requires this Court to accept the Master's conclusion that Ms Joseph drove through a green light. The Master's conclusions as to liability were based upon his opinion that Ms Joseph was negligent and that Mr Platcher was guilty of contributory negligence because, although each had entered the intersection lawfully, she and he had nonetheless had failed to look to their right and left respectively and in the result had no notice of the approach of the oncoming vehicle. The submission made in the appeal for Ms Joseph is that Mr Platcher did not enter the intersection when the light facing him was amber but when it was red, and that he thus entered the intersection unlawfully. In these circumstances either Ms Joseph was not negligent, or if she were negligent, the apportionment by the Master should be significantly altered. If Mr Platcher was wrong when he said that the light had changed to amber when he entered the intersection, it must have either been red or green. Assuming, as the Master found, that Ms Joseph entered the intersection immediately before the light facing Canley Vale Road turned from green to amber, the light facing Railway Parade would not change from amber to red until thirteen seconds later. If, as is submitted for Ms Joseph, it is improbable that it took her ten seconds to go from the light facing Canley Vale Road to the point of the collision, it is more improbable that it took her thirteen seconds to do so. If the light facing Mr Platcher was indeed red, it must have been that red which had commenced two seconds before the light facing Canley Vale Road turned green and continued for five seconds after that green light had changed first to amber and then to red. When that five seconds had elapsed, the light facing URJ JOSEPH v PLATCHER and BURNS v THE NOMINAL DEFENDANT (Hope AJA) — 5 Railway Parade turned from red to green. If then the light facing Mr Platcher was not amber, it has to be resolved whether he entered the intersection through a red light during the five second period after the light facing Canley Vale Road turned from green to amber, or immediately after that five second period when the light facing Railway Parade would have turned to green. If it had turned to green, he would have entered the intersection lawfully. The evidence may be in a condition which does not enable a tribunal of fact to decide whether the light facing him was red or green when he entered it. If Mr Platcher was incorrect in saying that the light facing him was amber when he entered the intersection, it does not follow that he was being dishonest or self-serving, any more than Ms Joseph was being dishonest or self-serving when she said, wrongly as the Master held, that the light facing her was still green when she commenced to make a right hand turn. Both Mr. Platcher and Mr Burns were knocked unconscious as a result of the accident, and did not recover consciousness until sometime later when they were in hospital. Consequently inconsistencies or mistakes in their evidence as to what happened before the accident are understandable. Indeed there were differences in the evidence given as between each of them. Thus Mr Platcher said that the lights preceding the Canley Vale Road lights were green, but Mr. Burns said that they were red and that Mr Platcher had stopped at them before proceeding. There were also differences between the evidence of Mr Platcher and that of Ms Joseph. Thus Mr Platcher's evidence was that the white vehicle which passed him in Railway Parade as he was approaching the intersection was a utility, and that it had come, not out of Canley Vale Road, but along Railway Parade, ie from north of the intersection. Accepting Ms Joseph's evidence about the white vehicle in front of her, this is quite improbable, although it may throw light on the movement of the white vehicle in relation to the movement of Ms Joseph's vehicle. In my opinion these inconsistencies do not show that Mr Platcher's evidence was self-serving. They do show that his evidence about the events preceding the accident is unreliable, at least in some respects. If Mr Platcher was wrong in saying that the light was amber, no assumption can be made as a result of his mistake that the light was either red or green. It could have been either.In order to determine whether the light facing Mr. Platcher was red or green, or indeed to determine whether it is possible to come to any conclusion on the matter, on the assumption that the Master's finding is not accepted, it is necessary to follow more closeley the movements of the parties up to the time of the accident. Ms Joseph was proceeding along Canley Vale Road at about 60 ks per hour, when she saw in front of her a white vehicle which was proceeding at about 40 ks per hour. The car was full of people who were making quite a noise, and the car was moving from side to side. She thought that the people in the car may have been drunk, and she decided that she must keep clear of the car. Accordingly she slowed down and kept a distance behind. As the white car came to the lights at the end of Canley Vale Road, facing the intersection, they were red. The white car stopped. Ms Joseph stopped her car about ten feet behind it. After the lights turned green, she kept her eyes closely on the white car in order to see what it was going to do. It proceeded across the intersection and made a right hand turn into Railway Parade. Ms Joseph gave several versions as to when it was that she started to follow the white car, but having regard to all the circumstances including her caution and to her fixation about the white car, the version that she gave when she marked on a plan the spot where the white car had 6 UNREPORTED JUDGMENTS reached when she started her own car seems to me to be the most likely account. This point was in the traffic lane across the centre line of Railway Parade at the place where the white car turned to go in a southerly direction along Railway Parade. On this view, Ms Joseph had to traverse about ten feet and the length of the white car to reach the lights facing Canley Vale Road. The Master held, and I think rightly, that the green light lasted for only five seconds. Having regard to the delay before Ms Joseph started her car, and the distance she had to traverse before she reached the light, she was indeed lucky to have reached the light before it turned from green to amber. However, assuming that she did so, and this is not in issue in the appeal, it must have turned to amber at the very moment she passed it. Ms Joseph said that she continued to look at the white car and also at the light on the other side of Railway Parade which was facing down Canley Vale Road. Most of her vision must have been directed to the white car, for if she did watch the light, she got the colour of it wrong when she gave evidence about it. Since the white car had started to make its right hand turn when she started to move off, she must have looked somewhat to the right in order to keep her watch on the white car. However she did not look at that part of Railway Parade along which Mr Platcher was approaching in his car, and she did not see it. Meanwhile Mr Platcher was approaching along Railway Parade at a speed which has been estimated variously at something between 40 and 60 ks per hour. He was not looking to the left, and did not see Ms Joseph's car, and then, when, according to him, Mr Burns called out, he looked to his right and he saw a white vehicle. If his description of that vehicle and its course was correct, it would follow that there was a third vehicle at the scene approaching him in a southerly direction along Railway Parade. As I have said earlier, if Ms Joseph's evidence about the white car is accepted, this is quite improbable, and the Master concluded that he must have seen the white car which Ms Joseph said she had followed. The question is however, whether the time taken by Ms Joseph to drive from the line of the lights at the end of Canley Vale Road to the point of the collision was not less than five seconds. According to a police report, the point of impact was 5 metres east of the western kerb alignment of Railway Parade and 6 metres north of the southern kerb alignment of Canley Vale Road. It does not appear how the Police Constable, who did not give evidence, arrived at this point of collision, and in particular whether it was from a description by a witness or from marks upon the ground. However it is clear that Mr Platcher was driving his car along that lane in Railway Parade which was closest to the centre line, and that Ms Joseph was driving her car in the lane which was closest to the centre in Canley Vale Road. It is also clear that Mr Platcher's car struck Ms Joseph's car on the driver's side and to the rear of the driver. Ms Joseph was undoubtedly driving quite slowly, with her attention almost wholly fixed on the white car. The Master thought that she had taken ten seconds to cover the distance from the lights to the point of impact. However it is not necessary to decide whether she took as long as ten seconds; the present question is whether she took something slightly in excess of five seconds. In my opinion, it is possible that she took this time, but I am unable to come to any conclusion on the probabilities whether she took that time or something less than that time. She may have taken that time or she may have taken a shorter time. The proper conclusion on the evidence is that it is not possible to say whether the light through which Mr Platcher passed was red or green. Assuming that it was not URJ JOSEPH v PLATCHER and BURNS v THE NOMINAL DEFENDANT (Hope AJA) 7 amber, it is not possible to say that he entered the intersection either in accordance with a green light or against a red light. If that view is correct, it follows that it is not possible to say that Mr Platcher drove his car into the intersection in breach of the traffic laws; he may have done so but it is not shown on the probabilities that he did so. If he did drive through a red light, it must have immediately changed to green. Ms Joseph's answer to the charge of negligence which Mr Platcher brought against her was that she had entered the intersection lawfully and she should not have been expected to look to the right in order to take care for the safety of somebody who cannot show that he entered the intersection in accordance with the traffic laws. In the circumstances in this case, I do not think that this submission can be sustained. Although it must be accepted that Ms Joseph entered the intersection lawfully, it has not been established that Mr Platcher entered the intersection in breach of the traffic laws. Ms Joseph must rely upon a submission that there was no obligation upon her to look to her right except in relation to a person coming from that direction who entered the intersection lawfully. I do not accept this proposition. It is apparent that the phasing of the lights at the time of night when Ms Joseph arrived at the intersection was such that any vehicle moving through it had to move quickly or the lights might change so as to admit other vehicles lawfully into the intersection in circumstances when, if due care were not taken, there might be a collision. This danger was increased because Ms Joseph delayed for a considerable time before starting to follow the white car into the intersection to make a right hand turn, a delay which emphasised the need to take care. As the High Court said in its judgment in Sibley v Kais (1967) 118 CLR 424 at 427: "The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations; for there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case." The circumstances of this case are that Ms Joseph directed her attention almost entirely upon the white car as she made her entry into the intersection, even though by the time she made that entry the white car must have completed its turn and been moving down Railway Parade, and even though her entry was a slow and delayed one through quickly changing lights. She was driving carefully in relation to the white car, but without regard to the risk to any other car which might be approaching this intersection. In my opinion, she ought reasonably have looked to her right and, as she said in her evidence, had she looked to her right, she would have seen Mr Platcher's vehicle, she could have stopped within a few feet, and she could probably have avoided the accident. In my opinion Ms Joseph was negligent whether Mr. Platcher drove through an amber light or a green light, or, in the circumstances I have described, through a red light. The appeal against the Master's conclusion that Ms Joseph was guilty of negligence should fail. Mr Platcher's situation is not different. He has not established that he entered the intersection through a green light or through an amber light. In any event, in the circumstances of the case and having regard to the time of night and the phasing of the lights, he should have looked to his left to make sure that no 8 UNREPORTED JUDGMENTS vehicle was entering upon the intersection. His failure completely to do so was one of the causes of the accident and constituted contributory negligence on his part. Thus Ms Joseph was guilty of negligence and Mr Platcher of contributory negligence for essentially the same reason namely, failing to look to see whether a vehicle was approaching along the other road which might collide with them. In relation to the claim of contributory negligence on the part of Mr Platcher, Ms Joseph did not establish that he drove through a red light, and the onus, for this purpose, lay upon her. Although my conclusion is based on different reasons to those upon which the Master relied, in my opinion his apportionment of responsibility for the damage caused by the collision should stand, that is, each party was responsible to the extent of 50% for that damage. The other ground of appeal in the case of Ms Joseph relates to the rate of interest allowed by the Master on that part of his verdict in favour of Mr. Platcher attributable to past general damages. The total amount awarded for general damages was $160,000 of which $110,000 was allocated to the future and $50,000 was allocated to the past. The Master awarded interest on this sum of $50,000 at the rate of 7.5% for a period of 7.67 years, which amounted to $28,763. Since the Master gave his decision, the High Court has reviewed the principles to be applied in relation to the amount of interest to be allowed on past general damages: MBP (SA) Pty Ltd v Gogic (1991) 65 ALJR 203. The appropriate rate is 4% over half the relevant period or 2% over the whole period. Tf interest were calculated at this rate on the sum of $50,000, the correct amount should have been $7,670. Despite submissions to the contrary, I have no doubt that Gogic should be applied in the present case: see for example Doherty v Liverpool District Hospital (Court of Appeal, unreported 13 March 1991). The result is that the appeal should be allowed in part, the damages assessed by the Master in respect of Mr Platcher's case should be reduced to a total of $984,237, and judgment should be entered for him in an amount of $492,118, to date from 4 October 1989. Mr Platcher cross-appealed on the ground that the verdict awarded to him should not have been reduced for contributory negligence, or, alternatively, that the apportionment of 50% was too high. Having concluded that the findings of negligence and contributory negligence should stand and that the apportionment of 50% was correct, this appeal should be dismissed. Mr Burns appealed on the ground that the award of damages in his favour was inadequate. Mr Platcher cross-appealed on the ground that the injury to Mr. Burns was caused entirely by the negligence of Ms Joseph. Ms Joseph cross-appealed against the finding that she was negligent, and against the Master's apportionment of liability. This cross-appeal has been amended to raise the question of the rate at which interest was allowed on pre-trial general damages awarded to Mr Burns, on the basis of the decision in Gogic. Mr Burns'challenge to the assessment is limited to general damages. The Master assessed these damages at $12,000, of which he attributed $6,000 to the pre-trial period. Mr Burns was born on 18 August 1960, and thus was 21 at the date of the accident. He was then a soldier at Holdsworthy. He was knocked unconscious, and recovered in hospital. He suffered oral, facial and cervical injuries. His teeth were very loose and his eyes were swollen. He had wounds on his face which were sutured, and he required surgery under general anaesthetic to redress tooth URJ JOSEPH v PLATCHER and BURNS v THE NOMINAL DEFENDANT (Hope AJA) 9 and socket fractures and to repair severe lacerations of his tongue which prevented the wiring of the fractures. For a while he was nursed on fluids. He left hospital after 8 days and returned to work on light duties after 2 weeks. After a while he began to suffer a discomfort with his neck which he feels when he is looking down at his desk, something which he has to do for most of his working time, and also when it is cold. This stiffness is chronic and will be permanent. He had scar revision surgery for his jaw, and was left with a moderate scar disfigurement. He required prolonged root canal therapy for four teeth, two of which have discoloured and a third of which will require replacement with a bridge. The bridge will require replacement at fifteen year intervals, at a cost each time of $2,000. The amount awarded by the Master suggests that he regarded Mr Burn's injuries and disabilities as quite minor. With respect to his assessment of them I take a different view. No doubt they may appear minor compared with the appalling injuries suffered by Mr Platcher, but putting this comparison aside, they seem to me to have been and to be quite significant. The shock and pain which he suffered must have been quite intense. The injuries to his face and mouth were serious. The permanent neck disability is no minor matter. In my opinion the amount of $12,000 was so low as to be disproportionate and outside the permissible range, and should be set aside as inadequate. In the light of the evidence, I have concluded that a proper award of general damages is $25,000. Of this amount I would allocate $12,500 to the pre-trial period. Interest on this sum at the rate of 2% per annum for a period of 7.67 years should be allowed, amounting to $1,917. Taking into account the amount of $1,500 for out of pocket expenses, the award should therefore be increased to $28,417. In the light of my conclusions, the following orders should be made: Platcher's case: (1) Appeal allowed in part. (2) Judgment set aside and lieu thereof judgment for Platcher in the sum of $492,118, to date from 4 October 1989. (3) Appellant to pay nine tenths of the costs of the appeal, the respondent to pay one tenth of those costs, the respondent to have a certificate under the Suitor's Fund Act in respect of the costs payable by him. (4) Cross-appeal dismissed with costs. Burns' case: (1) Appeal allowed. (2) Judgment set aside and in lieu thereof judgment for Burns in the sum of $28,417, to date from 4 October 1989. (3) Respondent to pay the costs of the appeal. (4) Cross-appeals dismissed with costs. Counsel for the Appellant: A LESLIE QC and W PEOPLES (Burns), M D IRELAND QC and L GYLES (Joseph) Counsel for the Respondent: J RINGROSE (Nominal Defendant) CT BARRY (Platcher) Solicitors for the appellant: HUNT MUSGRAVE and PEACH Solicitors for the Respondent: HUNT and HUNT