ta rl ol wees Se eee QT7q CATCHWORDS DAMAGES - appeal against quantum of award for personal injuries - accident neurosis - no error of fact or law Kotsopoulos v Williams (unreported, NSW Court of Appeal, 28 November 1985) Gamser v Nominal Defendant (1977) 136 CLR 145 BETWEEN : STIPAN BUTKOVIC Appellant AND : AUSTRALIAN CAPITAL TERRITORY ELECTRICITY AUTHORITY Respondent No. ACT G.45 of 1985 CORAM : Davies, Neaves, Miles JJ 1 July 1986 Canberra a eee tae ee 1 mw ete A ie aes ate 2 FR tee A ane | 'IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) ) ) ) No. ACT G.45 of 1985 ) ) ) GENERAL DIVISION ON APPEAL from the Supreme Court of the Australian Capital Territory SC 725 of 1979 BETWEEN: STIPAN BUTKOVIC Appellant AND: AUSTRALIAN CAPITAL TERRITORY ELECTRICITY AUTHORITY Respondent MINUTES OF ORDER JUDGES MAKING ORDER: Davies, Neaves and Miles JJ DATE OF ORDER: 1 July 1986 WHERE MADE: Canberra THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. At Wate taeet. Uae - Deda Soke De Oe ed IN THE FEDERAL COURT OF AUSTRALTA DISTRICT REGISTRY ) ) AUSTRALIAN CAPITAL TERRITORY ) ) No. ACT G.45 of 1985 ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN : STIPAN BUTKOVIC Appellant AND : AUSTRALIAN CAPITAL TERRITORY ELECTRICITY AUTHORITY Respondent REASONS FOR JUDGMENT CORAM : Davies, Neaves, Miles JJ 1 July 1986 DAVIES J : The evidence before the learned trial Judge showed that, in February 1978, the appellant suffered burns when the scoop of a mechanical excavating machine that he was operating to excavate a trench came into contact with a high voltage underground cable. The evidence also established that the appellant suffered a neurotic reaction as a result of the accident and of his injuries and that it was that reaction rather than the burns that was of significance in later years. at wore we ~~ * oe age ren The crucial finding of the learned trial Judge was that ",.. the plaintiff has been suffering from litigation neurosis and that when this case is determined he will find some suitable employment." Such a finding is not infrequently made by courts when there is an assessment of damages for personal injuries resulting from an accident. The litigation neurosis of which his Honour spoke is a well recognised neurosis which has the distinguishing feature that the claim for damages or the litigation itself provides a psychological contribution to the neurosis and that, once the matter has been finalised, the neurosis recedes. However, another form of accident neurosis is of a permanent rather than a temporary character. Such a neurosis 15 not infrequently found in men in the less well assimilated ethnic groups of the community who suffer accident. Probably it occurs because the man loses confidence in his ability to be the bread-winner of the family and the dominant person therein. Symptomatic of the neurosis is the adoption by the worker of the role of an invalid in relation to his work and in relation to his home life. The evidence given at the trial, other than the evidence of Dr J.A. Roberts, who appeared not to accept the existence of an accident neurosis of the latter type, seems to me to present a typical case of such a neurosis and to be entirely consistent with it. The medical practitioners, other than Dr Roberts, were consistent in their views that the appellant had a_ severe neurotic reaction. The medical opinions became increasingly voce cere ee ue a er wee eM et ee ow me ae rs omer ee a pessimistic as to his prospects of recovery. On 6 June 1978, Dr B. Hughson reported, "It was my opinion that he was suffering from a traumatic accident neurosis and was unfit to resume work because of his psychological state." On 28 April 1981, Dr R.C. McDonald reported, "Psychologically he shows a severe hysterical anxiety neurosis and his emotional behaviour is markedly regressed wae this man is 100% incapacitated, 1.e. he is at this time unemployable on psychiatric grounds." Those two doctors in their reports expressed hope of improvement. However, on 6 January 1982, Dr K. Lubbe reported, ""T felt this man has an accident neurosis and since, from reading other doctors earlier reports, its extent has not changed over the last two years or so, it is unlikely to improve and he seems incapable of resuming work." On 11 March 1983, Dr W. Knox reported, "I believe that he will continue to function as an effective invalid in the future, largely as a result of the severe psychological overlay which has complicated his physical injury in his 1978 accident." On 25 February 1985, Dr Knox reported that there had been virtually no change in the appellant's condition. Dr Knox said, "Your client continues to cope very poorly with everyday demands in his life. -.. There has been a gross psychological decompensation in this man's case which I believe relates directly to his 8.2.1978 accident. There is massive avoidance on your client's part of everyday responsibilities. -.- in the light of his almost complete domestic incompetence I am not able to contemplate Mr Butkovic returning to any paid employment." Oral evidence given by Drs Lubbe and Knox was to the same effect. So also was the evidence given by Dr T. Gavranic, a general medical practitioner who attended to the appellant during most of the relevant period. ae ea eee - to a nt re ec ree ey To like effect was the evidence of the appellant's wife, Mrs Marghita Butkovic, who said, inter alia, "This accident has changed everything because he is sick. The same I am having difficuit to explain to my children what is the problem. They cannot understand because they are still little, and they talk to me and tell me how that other fathers take children away on holidays and so and our father does not because our father goes and lies down, he 1s sick. When he is nervous everying disturbs him, everything irritates him. When he 1s in pain, everything, utterly everything disturbs him, and I have to look after everything. I have to work what is supposed to be his job and mine, I have to do it." Thus, perhaps because of my own individual experience with like persons after litigation has terminated, I prefer the view that the appellant has suffered from an accident neurosis which will have a permanent effect upon his life rather than a litigation neurosis which he wili largely overcome once the litigation has ceased. But to say that is not to say that the appeal should be allowed. His Honour was the judge of the facts. The conclusions which his Honour drew were open to him on the evidence and there is no such clear evidence to the contrary or such clear inference to the contrary to be drawn from established facts that it would be proper for a judge of an appellate court to substitute his own view for that of the learned trial Judge. I have had the opportunity of reading the reasons prepared by Mr Justice Miles. I agree with his Honour's opinion that' the enero mete mein enmeenn pe = ee oe wen een ne - eee ne ae Pe ee od ooo od 1S) findings of the learned trial Judge were fairly open and ought not to be interfered with and that on those findings his Honour's - aye assessment of damages was a proper one. For these reasons, I would dismiss the appeal with costs. » certify that this and the A. receding pages are a irue copy of the reasons for judgment herein of The Honour- able Mr, Justice J.D. Davies ; Ss Ridgeway * Associate Daed 27 June \qWS6 eye ee ew er he nn ee ee ee eee ee en 7 hte eee Le A ee ee eo wemetemiemm Bs ts ht ee oe AUSTRASTAN CAPT@PAL, TERRITORT AU nn TRALIA IN THE FEDERAL COUPT 0 a) wo ies) a) No. ACT G 45 of 1 DISTRICT PECISTPY e ON APPPAL FROM THE SUPEEME COUR ey OF THE AUSTRALIAN CAPITAL TERRITOR BS TACEN : STIPAN BUTKOVIC Appellan AND: AUSTRALIAN CAPITAL TERRITOPY ELECTRICITY AUTHORITY Respondent DATE: 1 July 1986 REASONS FOR JUDGMENT - Neaves J. Tagree, for the reasons ylven by Miles J., that appeal herein should be dismissed with casts, I certify that this page 1s a true copy of the Reasons FO. Judgment herein of the om Mr Justice Neaves Egy. Yr Associate Dated. 1 July 1986 ww ah: ih) 2 hi eS ae Sided EE to See ee o- IN THE FEDERAL COURT OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) GENERAL DIVISTON ) No. ACT G.45 of 1985 ON APPEAL from the Supreme Court of the Australian Capital Territory Sc 725 of 1979 BETWEEN: STIPAN BUTKOVIC Appellant AND: AUSTRALIAN CAPITAL TERRITORY ELECTRICITY AUTHORITY Respondent CORAM: Davies, Neaves and Miles JJ. DATE: 1 July 1986 REASONS FOR JUDGMENT Miles J. This 1S an appeal by a plaintiff against an award of damages in the Supreme Court of the Australian Capital Territory. The plaintiff was injured on 8 February 1978 whilst working as a plant overator. The scoop of the machine which he was operating came into contact with a high voltage underground cable, causing an electrical explosion. The underground cable was ain the care and control of the respondent defendant. The award of damages was for a sum of $144,682.21 which according to his Honour the learned Judge at first instance was made up as follows: General damages $ 30,000.00 Past & present loss of earning capacity $100,000.00 Agreed Fox v. Wood component $ 9,942.61 Agreed medical expenses S 4,739.60 $144,682.21 apo ww Ae sae ened + o~ ek ite Melee" bad re ee eo 2. The physical injuries and the plaintiff's personal history both before and after the injury are not the subject of dispute in this appeal. They may be summarised briefly. The injuries were burns to the face, neck, right hand and arm and upper torso, flashburn injury to the eyes, injury to the right hand and arm, injury to the neck and shock. The plaintiff was admitted to the Royal Canberra Hospital on the day of injury where he remained for some three weeks. The injuries were described by his Honour as "very painful indeed" and required continuous dressing and treatment during his hospitalization. The facial burn was completely healed by 22 February, but the skin of the right forearm required protective dressing and tended to blister until April 1978. There is permanent but minimal scarring of the plaintiff's right hand and forearm. There 1s no wasting or loss of muscle tone in the right forearm. The plaintiff's physical injuries did not incapacitate him for work beyond 1 May 1978. The residual disabilities set out in the particulars furnished on behalf of the plaintiff include the following: "(a) Post-traumatic accident neurosis and functional overlay; (b) Severe psychological reaction to initial injury resulting in markedly regressive emotional behaviour and resulting inability to cope with stress and demands of living;" There were a number of residual disabilities of a physical nature which were set out in the particulars. His Honour summarised them as "sore eyes which require him to avoid bright lights, lots of headaches, inability to sleep at es - th eepeeg an sae nee No oem a ee an) arse 'tiewece SP Ree the 3. night, lack of strength in the right arm and clumsiness of the right hand, inability to cope with noise around the home and a general feeling of being unwell". To these might be added the plaintiff's complaint of dizzy spells, susceptibility to noise, pain in the sides of the head and pain in the knee and back. Of these allegations his Honour said that not all were proved in evidence. It was common gound that the cause of the complaints was not physical but was psychological 1n origin. Tt was the nature and extent of the plaintiff's psychological condition which was the substance of the dispute between the parties on damages and which is the essential question raised on this appeal. The plaintiff was born on 18 November 1937 1n Yugoslavia where he went to school, completed two years national service and trained as a tailor. He married in 1960 and came to Australia in 1969. There are five children of the marriage ranging from 23 years to 9 years. In Australia the plaintiff soon found that outdoor work was more remunerative than talloring and after working for some time as a labourer he acquired skills as a plant operator. He had been working as a plant operator for at least twelve months prior to his injury. His wife does not work. She gave up work sometime after the plaintiff's injury. The plaintiff has not worked Since the injury and does very little of a physical nature. The plaintiff£ was referred by his general practitioner, Dr Gavranic, to Dr Bernard Hughson, a consultant psychiatrist, on 28 April 1978. Dr Hughson certified him as unfit for a further month off work and prescribed drugs. On 11 May 1978 Pane Tied rue a ite od 4. Dr Hughson referred the plaintiff to the rehabilitation unit at the Woden Valley Hospital. Such treatment as the plaintiff received there was unsuccessful. Since then the plaintiff has been examined by a number of psychiatrists whose findings and opinions were the subject of reports and i1n some cases evidence before the learned trial Judge. After carefully reviewing the medical evidence and after stating his reasons for finding it difficult to believe the plaintiff "unless corroborated from some other source", his Honour concluded as follows: "Notwithstanding the preponderance of medical evidence, I have difficulty in being satisfied that he should be regarded as being incapacitated for work up until the present time. I accept the opinion of Dr McDonald that the plaintiff has been suffering from litigation neurosis and that when this case 1s determined he will find some suitable employment. There 1s no doubt that the plaintiff suffered a very frightening experience due to the negligence of the second defendant. After an initial period of hospitalisation and rehabilitation at home, he has been left with minimal physical disability. For pain and suffering, loss of enjoyment of life and residual disabilities, I provisionally assess the sum of $30,000 for general damages. On one view of the evidence he was fit to return to work by the middle of 1978. However, there 15s a good deal of evidence to indicate that because of his functional overlay rather than malingering he has been unable to resume work since then. I think on the balance of probabilities he has established that he has been unable to work for a number of years since the accident because he has believed that he has not been able to work, but I also think that he should have returned to work by now. It was agreed that if the plaintiff 1s entitled to a sum to compensate him for past economic loss from the date of the accident until the date of judgment, the appropriate sum is $86,600.75. Because he still believes that he is not able to work to the same capacity as he was working at the date of the accident, he 1s still * leat MB Restate 3 om tan ne sa el i ate a TH 5. incapacitated to some extent. If he wanted to he could return to full capacity. I think ain all the circumstances he wiil eventually recover his full earning capacity. Whether he exploits it 1S another matter. If he declines to do so, the second defendant should not have to bear the economic burden of such a decision. He is physically quite well and there are many areas of employment which would be open to him 1f he were sufficiently motivated, for instance, as a driver, messenger or even as a tallor, for which occupation he has some training. In the circumstances, the figures presented in the report of Messrs E.S. Knight and Co., consultant actuaries (Exhibit 14), setting out the lump sums necessary to compensate the plaintiff on the basis of total loss of earning capacity at retirement ages 55, 60 and 65 respectively are of little assistance in the case. Accordingly, I assess for past and present loss of earning capacity the sum of $100,000." A brief summary of the medical evidence relating to the plaintiff's psychiatric condition or psychological condition 1s as follows. Dr Bernard Hughson, consultant psychiatrist, reported that on 28 April 1978 the plaintiff was suffering from a traumatic accident neurosis and was unfit to resume work for a month, On 11 May 1978 Dr Hughson reported that the plaintiff's condition was not static and should improve and that the plaintiff was then fit for light duties. Dr Hughson was not called to give evidence. Dr Colin J. Andrews, consultant neurologist, reported that as at 7 July 1978 the plaintiff's complaints were due to anxlety and functional overlay. The situation was unchanged upon review on 15 January 1979. Dr Andrews did not give evidence. wee ee - wav ene er er tome rer ese 6. Dr Robert McDonald, consultant psychiatrist, reported that as at 28 April 1981 there was little organically wrong with the plaintiff, that he was suffering from a severe hysterical anxiety neurosis in which there was a_ strong element of emotional overlay and compensation neurosis which was unconscious and not malingering and would probably subside considerably after the settlement of the case. Dr McDonald went on to Say in a passage upon which his Honour placed emphasis "There 1s little doubt in my mind that 1f this were not a compensation case this man would have returned to work by now. He sees himself as, and in actual fact is, unemployable at the moment." Dr McDonald did not give evidence, and had in fact died since the time he saw the plaintiff. O£f the numerous medical opinions expressed, his Honour found that of Dr McDonald the most acceptable. Dr Lubbe, consultant psychiatrist, who examined the plaintiff on 25 November 1981, gave evidence and furnished a report. She stated that the plaintiff suffered from an accident neurosis from which he was unlikely to recover because its nature had not changed over the period of a couple of years. She acknowledged in her evidence that she had been influenced by other reports which she had read and that she was totally dependent on the plaintiff's veracity. Dr William Knox, consultant psychiatrist, gave evidence that in his view the plaintiff had settled fairly permanently unto a state of disability which was likely to remain chronic, that the plaintiff would be likely to continue to function as an effective invalid, largely as a result of severe we pene wena = TR ere et. eK sow vee pat? oS oe a 7. psychological overlay. Dr Knox acknowledged that he based his opinion upon the accuracy of the plaintiff's complaints to him and that the plaintiff was psychologically a very inadequate and very unwell individual. The only medical evidence called on behalf of the defendant was from Dr J.A. Roberts, a consultant psychiatrist. Dr Roberts concluded that a condition of traumatic neurosis was possible but unlikely and that the most likely diagnosis was fabrication by the plaintiff for the purposes of compensation. In the light of the evidence that was before his Honour, it is apparent that there was a lack of agreement amongst the doctors as to the meaning of the various phrases that had been used to describe the plaintiff's condition. it 1S not apparent that they did agree or would have agreed 1f asked that they were all talking about the same or a substantially similar psychological or psychiatric condition. For instance, i1t 1s likely that the "traumatic neurosis" mentioned by Dr Roberts was a mental condition which (if 1t existed) would have arisen directly out of the events surrounding the plaintiff's injury, whereas the "functional overlay" referred to by Dr Andrews was more likely to have been a psychological condition which causes pain and other symptoms of physical disability to occur or to increase in intensity and which 1s brought about by external factors such as 1umpending litigation. There were two principle submissions on behalf of the appellant. First it was submitted that the state of the fe oe one ff cee ee thee agian ee ee ae - oe Us 8. medical evidence was such that the trial Judge was presented with two alternative possible findings of fact: either that the plaintiff was suffering from a totally incapacitating mental condition, by whatever name it might be called, or alternatively, that he was a total malingerer, with no room for any findings of fact in between those two extremes. His Honour stated that he found that the plaintiff presented as a very evasive and suspicious witness. He also stated that he had viewed films of the plaintiff shopping and going about his home which depicted the plaintiff leading a normal existence giving a "vastly different conception of the plaintiff's general condition as contrasted with his evidence and some of the statements he had made to the doctors." The trial Judge also referred to a number of other factors which led him to reject the plazntiff as a reliable witness. It is unnecessary to refer to these in detail. The assessment by the trial Judge of the plaintiff, as of all witnesses, as a witness of truth or otherwise was entirely a matter for himseif and an assessment with which an appellate court should not interfere. It is, of course, true that special care must be taken when assessing the reliability of a witness who is suffering or alleged to be suffering from some form of mental disturbance. It is notoriously difficult to make findings in relation to the mental condition of persons who have suffered physical injuries from which they have recovered but who present as disabled because of some supervening mental condition. Where the mental condition is not precisely 2 eens we a a ere weg an ee ee rege cee wey ep eo tae Ca ae Sc Ole ee eel Sl MO rer a ae ed ee 9. not precisely identified and where the assessment of the medical experts depends upon assumptions which may or may not be supported by proper evidentiary material, the difficulties encountered by a tribunal of fact are increased substantially. There is, however, no reason to doubt that the learned trial Judge appreciated those difficulties and made his assessment properly in the light of all the circumstances. That his Honour was aware of all these difficulties is reflected, for instance, in his statement that he was impressed with the evidence of Dr Roberts but hesitated to accept it totally because that course would amount to a rejection of all the other medical evidence in the case. Accordingly, in my view, 1t is not correct to say that his Honour was faced with two simple alternatives, either an acceptance of the plaintiff as totally and vyermanently disabled, er rejection of the plaintiff as ae total malingerer. It was open to him to arrive at a conclusion lying somewhere between the, two extremes. The second principal submission on behalf of the appellant was that his Honour confused factual findings with what senior counsel for the appellant described as "moral judgments". It was argued that support for this submission was to be found in a passage in the reasons for judgment where his Honour said that the plaintiff "should have returned to work by now" and in reference to the future "1f he wanted to he could return to full capacity". A reading of those two remarks in context, however, indicates that his Honour was not referring to what he considered the plaintiff ought to have = ON eee OP Me re Meare we wets i ee ia Dh Le Lt aT ros se FL ate we -- 10. done or ought to do. The two remarks have to be read in the light of what his Honour said both in the lengthy extract [rom his judgment which is set out above and in the rest of his reasons for judgment. It 18 clear that his Honour's findings are, first, that the plaintiff's earning capacity had for some time in the past been such that he was at the time of trial capable of carrying out some form of income earning activity and, secondly, that at some indeterminate time thereafter the plaintiff would be capable of carrying out income earning activity to the same extent as he would have been capable if he had not been injured. It was submitted on behalf of the appellant that the learned trial Judge had fallen into a similar error of fact as the judge at first instance in Kotsopoulos v. Williams (unreported NSW Court of Appeal 28 November 1985). In that case the plaintiff's claim included a condition of mutism which had been accepted at the trial as an hysterical consequence of injury which would diminish and ultimately disappear. The condition of mutism, together with some associated symptoms, was in the view of the only psychiatrist who expressed any Opl1nion in the case, due to a schizophrenic form of psychosis. The psychiatrist expressed the further view that whilst in the long run there might be some degree of resolution, the plaintiff would be left with considerable disability. No other psychiatrist expressed any opinion on the permanence or otherwise of the plaintiff's psychiatric condition. The judge at first instance took the view that, in the vast number of hysterical cases, symptoms vanish re. ec ee tam nn Ses ae a es er ee 11. spontaneously after litigation when there 1S a measure of financial security and reunion with members of the family overseas, resulting in a cure. The Court of Appeal considered that the 'judge at first instance was not justified in concluding from his experience in other cases that, in the face of the only medical opinion offered, the plaintiff was likely to recover after the end of litigation. The facts in that case, however, are to be distinguished from the facts in the present case where the reports of Dr Hughson and Dr McDonald clearly raise the likelihood that the plaintiff's condition has been prolonged or aggravated by the delay in his ease coming to trial. A similar view was taken by Dr Gavranic. All those views, although in conflict with the evidence of Dr Lubbe, justify the conclusion that with the end of litigation there is a distinct possibility, even likelihood, that the plaintiff's condition will improve, and in the light of those circumstances the learned trial Judge was perfectly entitled, in my view, to draw the further conclusion that the plaintiff would eventually reach his full earning capacity. The question therefore for determination by this Court 1s whether his Honour's assessment of $100,000 for loss of earning capacity both in the past and in the future was based on some error of fact or law or is so demonstrably out of proportion to the facts as found that 1t must be seen to be manifestly inadequate. As I have said, there was no error in the factual findings. It was faintly suggested that there was error of law in the failure to separate the award for past arate we pee one ee ee Fe ee ee em epee ine . i eae Fae at Tee ee an 12. loss of earning capacity from the award for future loss of earning capacity. Whilst in many, 1£ not most, cases it will be of assistance to the appellate Court no less than to the trial Judge himself if a separate calculation is made for past loss as distinct from future loss, it 1s not an error of law to "refrain from attributing separate amounts to various headings or topics": Gamser_v. Nominal Defendant (1977) 136 CLR 145 at p.155. In the circumstances of the present case, moreover, the trial Judge was in a particular difficulty. He had made a finding that at some time in the past and "for a number of years", the plaintiff had been totally incapacitated by reason of his mental condition, and a further finding that at the time of the hearing the plaintiff could not be accepted as any longer totally incapacitated. Possibly to choose a point of time un the past marking the transition from total incapacity to partial incapacity would appear arbitary, as there was no evidence as to when the transition occurred. Similarly, as far as the future was concerned, to select a point of time in the future as the date by which the plaintiff might be expected to recover his full earning capacity would appear to be of like arbitary nature and not founded on any particular item or items of evidence. The situation then confronting his Honour was that he had before him a man who had received physical injuries and who had recovered from those physical injuries, but a man whose psychiatric condition was the subject of detailed and conflicting evidence. The conclusions on the part of the a ee ee Be, oe as eee ee a me me ete eee re mee ——4+ ee ere ene ewer cee = oa - ee ee Ce nen tan FAA ite bak as 13. doctors depended upon factual bases which his Honour had to determine for himself in the light of all the evidence. His Honour was simply unable to accept the contention put on behalf of the plaintiff that the man before him was totally incapacitated for work. The finding that the plaintiff's incapacity was something less than total was, in my view, open to him. On the other hand, his Honour was not able to accept the defendant's contention, supported by the evidence of Dr Roberts, that the plaintiff was a total malingerer. In that predicament his Honour took the view, which he was entitled to take, that the plazntiff had "for a number of years" been totally incapacitated but by the time of trial had become only partially incapacitated. In similar vein his Honour looked to the future and concluded that at some undeterminate time the plaintiff's earning capacity would return to what it would have been but for injury. That finding also was open to him. tn the light of all that 1t 1s impossible to look at the figure of $100,000 in isolation and make a decision as to whether or not it waS inadequate recompense for the plaintiff's loss of earning capacity. What should be done is that the figure should be tested against particular hypotheses that are permissible within the general findings of the trial Judge. As a starting point one may have regard to what the parties agreed was the total loss of earnings to the date of trial assuming that the plaintiff had been totally incapacitated until then. That loss amounted to $86,600.75. However, 1t would be inappropriate to approach his Honour's award on the basis that it was made up of the full figure for — oe renee = + a ad -3te oe 14. past loss of earning capacity and a sum of some $14,000 for future loss of earning capacity. Such approach could not be warranted because his Honour found, as he was entitled to find that the vlaintiff had at some indeterminate time in the past recovered some of his earning capacity. An alternative, and in my view, permissible method of approach would be to regard the plaintiff as fully incapacitated for, say, one half the period in the past, for which period he would be awarded $43,000 and to award, say, half that sum for the remaining half of the past period, a further $21,000, making a total for past loss of $64,000. That would leave $36,000 for the future. There was uncontested evidence that the plaintiff's net earnings but for injury at trial would have been $300 net per week. If one takes one half of that, namely $150 per week, as representing present and continuing loss of earning capacity and projects it into the future, one can look at further hypotheses for assessing the value of the loss of future earning capacity. For instance, applying the 3% discount tables, $35,000 presents the present value of $150 per week for thirteen years (taking the plaintiff to age 60) less fifty five percent for contingencies. Alternatively, $35,000 represents the present value of $150 per week for six years less fifteen percent for contingencies, or as a further alternative $150 per week for five years without reduction for contingencies. These various hypotheses are in themselves not unreasonable and indicate, in my view, that $100,000 for aggregate past and future loss of earning capacity cannot be seen as manifestly inadequate. Although the circumstances of te me ee ey re eee ee \ceerenecepram Wawona emp emotes on wee ee 8 oom mews ma ere 15. the case were such that different judges might apply different methods of approach, I am unconvinced that the learned trial Judge was wrong in the figure ultimately arrived at for loss of earning capacity. It was not submitted on behalf of the apvellant that any of the other component amounts in his Honour's total award was Lnadequate, except insofar as the award for pain and suffering and loss of amenities of life rested upon factual conclusions which the appellant has submitted in this Court were wrong and to which ZI have already referred. I am not convinced that those conclusions were wrong nor that the total award of $144,682.21 or any part of 1t was inadequate. For those reasons the appeal should be dismissed; the appellant to pay the respondent's costs. es ee and tne { cachens e¢ 9 Lrue copy of the -eALUES Foy BP . 5 preced ng pares neroin of bis Honour Taye ag th Reasons for Judgmeny > Ne. Justice We : [Dats k Moat Associate ! { | rea eee