JUDGMENT No. 22.4. 33_. CATCHWORDS PERSONAL INJURIES ~— damages - quantum - damages claimed to be excessive - appeal - appeal dismissed. TREVOR RAYMOND OLIVER and JOHN PATTERSON v. NICHOLAS GRAY No. ACT G39 of 1987 CORAM: MORLING, PINCUS and MILES JJ. cc Canberra 4 M boy I 948 PESSIVED CE MAY INS -, FEDERAL COURT OF AUSTRALIA oo TIP AN Al _ "an i IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION No. ACT G39 of 1987 ee ee ee ee ee ee er On appeal from the Supreme Court of the Australian Capital Territory BETWEEN: MINUTE OF JUDGES MAKING ORDER DATE OF ORDER TREVOR RAYMOND OLIVER and JOHN PATTERSON Appellants NICHOLAS GRAY Respondent ORDER Morling, Pincus and Miles JJ. 3 May 1992 WHERE MADE 3 Canberra THE COURT ORDERS AS FOLLOWS: 1. Appeal dismissed. 2. Appellants to pay respondent's costs. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. ae IN TRE FEDERAL COURT OF AUSTRALIA ) ) AUSTRALIAN CAPITAL TERRITORY ) ) No. ACT G39 of 1987 DISTRICT REGISTRY ) ) ) GENERAL DIVISION On appeal from the Supreme Court of the Australian Capital Territory BETWEEN: TREVOR RAYMOND OLIVER and JOHN PATTERSON Appellants AND: NICHOLAS GRAY Respondent CORAM MORLING, PINCUS and MILES, JJ. DATED: 3 May 1998 REASONS FOR JUDGMENT MORLING and MILES JJ.: The respondent sued the appellants in the Supreme Court of the Australian Capital Territory for damages for personal injuries sustained by him in a motor vehicle accident which occurred on 27 May 1978. The appellants admitted liability and the trial was limited to the assessment of damages. The learned trial judge assessed damages in the sum of $272,000 and entered judgment accordingly. The appellants appeal against that decision upon the ground that the damages awarded were excessive. 2. At the date of the accident in which he received his injuries, which was 27 May 1978, the respondent was aged 18 years. The action was heard in the Supreme Court some nine years after the accident, and at the date of hearing the respondent was almost 28 years of age. At the time of the accident, he was a pillion passenger on a motor cycle. He was thrown to the roadway and sustained a severe compound fracture of the right leg involving the lower two-thirds of the right tibia and fibula with severe residual disabilities in the right leg and ankle, as well as more minor injuries. The respondent had completed his schooling before the accident, having obtained his Higher School Certificate. After leaving school he was taking a year off and he was employed in farm work shortly before the accident. The trial judge's careful reasons set out in detail the nature of the injuries and the treatment which he subsequently received, and we need not re-state them. It is sufficient to say that the respondent's injuries were severe enough to give rise to the prospect of amputation of the right leg, but happily that did not become necessary. The respondent obviously suffered a great deal of pain and suffering. He was discharged from hospital on 26 June 1978 but was in need of much assistance after discharge. He was ina full length plaster which was first removed in September 1978 but was re-applied and again removed in November 1978. In February 1979 it was discovered that the respondent had non-union of his fracture. He also had 1.5 cm shortening of 3. the right leg. When the it was discovered that the union of the fracture had not taken place, a below knee hexalite weight (which is a type of plastic cast which goes down to the back of the leg and under the foot leaving the front of the leg exposed) was applied. This cast was changed from time to time. There was not much improvement in the respondent's condition throughout 1979 and finally on 20 November 1979 an extensive operative procedure was undertaken in which the non-union was explored and a compression clamp applied together with bone graft from the right hip to the right tibia. The respondent was in hospital for three weeks from 19 November 1979. The trial judge found, and his finding was amply justified on the evidence, that the respondent suffered a great deal of pain and became depressed and emotionally affected by his injuries. Indeed, there was evidence at the trial that some time after the accident and as a result of the injuries sustained by the respondent he temporarily engaged in alcohol and drug abuse. It seems that the respondent was on crutches after leaving hospital in June 1978 and that, while at one stage he graduated to a walking stick, he had to revert to crutches again until September 1980. He continued to use a walking stick until October 1983. He has had a great deal of physiotherapy and chiropractic treatment. He has very unsightly scars to the leg. He suffers from pain in the ankle and the leg, loss of movement in the ankle and quite substantial wasting of the calf muscle of the right leg. He 4. gets low back pain and pain between the shoulders. He also gets pain after standing still for a period, and he is unable to move quickly because of the shortening of his leg and the stiffness of his ankle. It is likely that he will eventually require further surgical treatment for osteo-arthritis of the ankle. This treatment may take the form of either an arthrodesis or possibly a joint replacement. The trial judge thought that it was likely that the respondent would need further surgery on his ankle within about five years from the date of trial. An arthrodesis would cause the respondent to be off work for six months. According to one of the medical specialists who gave evidence at the trial, the respondent has "lost totally the right leg below the knee" (T169.3). Another medical specialist who gave evidence at the trial for the appellants, expressed his opinion of the respondent's Gisabilities in the following terms: "He is now left with a marked permanent disability in the right lower limb consisting of: . Permanent shortness. Permanent scarring. Permanent deformity. a WwW NY Ff . Marked loss of movement of the ankle joint with secondary degenerative change. 5. A deformed position of the foot with secondary callosity formation from ressure over the outer side of the all of the foot. 6. Stiffness of the foot. "As a result of these changes, he has a permanent disability equal to a loss of about 50% of the efficient function of the right lower limb. 5. "He is at risk for increasing pain in the ankle joint from the deterioration of the degenerative state and he may suffer increasing pain over the callosities of his foot, especially over the fifth metatarsal head due to pressure from the deformity of the foot. I would think it likely that he will come to surgical fusion of the ankle joint, which would allow the correction of the inversion deformity and the better distribution of weight on his forefoot. A successful procedure would diminish his current disability to perhaps 45%. "It is clear that his ability to work has been markedly interfered with by the state of his right lower limb and he is restricted to more sedentary varieties of occupation and his endurance for walking and carrying has been greatly interfered with." On the question of the respondent's employment position, the trial judge found that the injuries he sustained caused him to change his career plans. His Honour accepted that at the time of the accident the respondent was contemplating further study to qualify himself as a chiropractor, but that any plans he had in this respect were not very far advanced. The trial judge awarded the sum of $70,000 for pain and suffering, inconvenience, residual disabilities, further operative treatment and other matters of general damages. No attack was made in argument on this component of the verdict. However, counsel for the appellants contended that this sum was adequate to cover any injurious affectation of the respondent's future work capacity. 6. In dealing with the proper component for loss of earning capacity past and future, the trial judge took into account a great variety of matters, all of which were relevant to the assessment of damages for loss of earning capacity. He was of the opinion that the respondent had the ability to follow a professional career and that, but for the accident, he would have gone on to some form of tertiary education, not necessarily for the purpose of qualifying as a chiropractor. He was satisfied that the injuries sustained by the respondent caused him to abandon tertiary studies. On the question of past economic loss, the trial judge found that the respondent was totally incapacitated until at least April 1979. He then worked part-time with a church group until December 1982, except for periods when he was hospitalized or recuperating from hospitalization. His Honour accepted that the respondent was required to use a walking stick until 1983 and that his leg remained very painful for what was plainly a very considerable time. His Honour adopted a figure of $30,000 for past economic loss and this figure is not attacked as being an unreasonable assessment in respect of that item. The trial judge fixed a sum of $150,000 as the component for damages for future economic loss, and it is this figure which is attacked by the appellants. It is submitted on their behalf that no amount (save whatever was included in the abovementioned sum of $70,000) should have been allowed for future economic loss. The basis of this argument is that the 7. failure of the respondent to take up professional work of the kind which he might have pursued but for the accident should be attributed to his desire to work for the church of which he is a member. It was not attributable, so it was submitted, to any continuing disability flowing from the injuries which he received. The trial judge acknowledged that it was a difficult exercise to assess the respondent's future economic loss. The respondent had not engaged in any continuous work prior to the accident. He had done some work on a farm but the appellants do not suggest that he would have continued in work of this kind. There was no certainty at the trial as to what the respondent's future employment history would be. For our part, we would not be as sanguine as his Honour of the respondent's prospects of following a professional career of some kind, but for the accident. His educational record does not appear to have offered much prospect of entry to a university. However, counsel for the appellants conducted the appeal upon the basis that the respondent did have prospects of a professional career before the accident and no attack was made on his Honour's finding to that effect. There were many imponderables in the assessment of the respondent's future economic loss. The amount awarded by his Honour was substantial, but we do not think it has been shown to be too high. On any view of the respondent's future economic position, it has been seriously prejudiced by the injuries he received in the accident. If it be accepted, as the appellants' argument concedes, that the respondent had a realistic prospect of a professional career before the accident, the award of $150,000 for future economic loss is not too high if the assumption be made that the respondent's injuries caused him to lose that prospect. In our opinion the evidence justifies this assumption. We see the force of the argument that the respondent abandoned a future professional career because of his wish to pursue church work. Some of the evidence would support a conclusion that the respondent has, indeed, become heavily involved in the work of his church. Nevertheless, there is much other evidence which persuaded his Honour that it was the physical and emotional effects of the accident which effectively led the respondent to abandon thoughts of a professional career. We would not differ from the conclusion which his Honour reached in this respect. However, regard to the respondent's youth, the difference between his likely future income over the rest of his working life (if he were a professional) and his likely future income in some non-professional work would be very significant. Certainly an amount of $150,000 is not an unreasonably high estimate of the present value of the difference. Nor do we think that the estimate of future economic loss was too generous if the assumption be made that the respondent would not have taken up some professional career even if he had not been injured. The 'description of the respondent's injuries and disabilities which we have already given makes it plain that his future ability to engage in work 9. requiring physical fitness and strength is seriously and permanently diminished. We would think that on the assumption that the respondent would, but for his injuries, have gone on to some form of non-professional career, then his loss of working capacity would nevertheless have been assessed at no less than $100,000. We note that this sum represents the present value on the three percent discount tables of a periodic loss of $100 per week until the respondent's sixty-fifth birthday, less a discount of fifteen per cent for contingencies. If his future economic loss fell to be assessed upon the basis that he would not have followed a professional career, the amount of $30,000 awarded for past economic loss would have to be significantly increased. The reason why this is so is that the figure of $30,000 was calculated by his Honour upon the basis that for some years prior to the date of hearing the respondent would have been engaged in studying to gain a professional qualification and would not have been earning income during those years. Accordingly, no amount for loss of income in those years was allowed for. We think that a further sum of the order of $30,000 would need to be allowed for past economic loss if the respondent is to be regarded as a man who would not have pursued any course of study even if he had not been injured. The effect of making the assumption that the respondent would not have gone on to professional studies and 10. qualifications would be that the respondent's damages for past loss of working capacity would have to be increased by about $30,000 and for future loss of working capacity reduced by about $50,000, that is to say, there would be a net reduction of the order of $20,000. Thus, even if the damages were to be assessed on the basis of making this assumption, the amount awarded could not be said to be excessive. It is true that the respondent had been working at a hursery for some years prior to the date of trial. He appears to perform this work only with difficulty. There is no suggestion in the evidence that the respondent exaggerates the affects of his injuries. He says he can only do work or carry out heavy activities for a very short period of the day and that if he over-exerts himself, he has to rest (T.53.3). He has a very long working life ahead of ham. He faces the prospect of six months off work for an arthrodesis. In times of less than full employment he will be at considerable risk in competing for work against men who are not disabled. He Presently works for his church, but it cannot be assumed that he will always have an understanding employer or that the church will continue to provide him with work at the nursery. The assessment of future economic loss in this case was dependent upon many imponderable considerations. We do not find any error in the approach taken by his Honour in assessing the respondent's future economic loss against the background of those considerations. We do not think that his Honour's reasons reflect the application of any wrong principle a 11. of law or that the amount of $272,000 has been shown to be a wholly erroneous estimate of the respondent's damages. The appeal should be dismissed with costs. Counsel for applicant: instructed by: Counsel for respondent: instructed by: Date of Hearing: Date of Judgment: I certify that this and the ten (10) preceding pages are a true copy of the Reasons for Judgment of their Honours Mr Justice Morling and Mr Justice Miles. mie!) re 1ooS Date: 3. Mr A.J. Leslie Q.Cc. with Mr D. Andrews Crossin Power Haslem Mr J. Holt Q.C. with Mr J. Millar Pamela Coward & Associates as agents for G.H.Healey & Co. 14 March 1988 3 May 1982 0 US' IA ) US' ¥Y ITORY ) ) ) DISTRICT REGISTRY DIVISION ACT G39 of 1987 QN APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: TREVOR RAYMOND OLIVER and JOHN PATTERSON Appellants AND: NICHOLAS GRAY Respondent CORAM: MORLING, PINCUS & MILES JJ. REASONS FOR JUDGMENT PINCUS J: This is an appeal against an award of damages for personal injuries. The "respondent Plaintiff, under the judgment appealed from, is to receive §272,000, of which $150,000 represented, in the view of the learned trial judge, proper compensation for loss of earning capacity. His Honour also made allowance, of course, for pain and suffering and the like, and for economic loss before the date of trial; the appellant makes no complaint about those figures. The principal contention advanced was, to put it briefly, that the respondent was treated by the learned trial judge as entitled to be compensated on the basis that he had lost a good chance of becoming a professional man, whereas (so the appellant said) whatever chance he had was still reasonably open to hin. The respondent was injured on 27 May 1978 ina motor cycle accident, and the appellant does not dispute that he was left seriously disabled. One doctor assessed his loss of function as about 50% of the right leg and expressed the view that he would be likely to require surgical fusion of the ankle joint; the learned trial judge assessed damages on the basis that such an operation was indeed probable. Another doctor expressed the opinion that, as his Honour put it, "for all intents and purposes the plaintiff has lost totally the right leg below the knee..." It is not clear whether his Honour accepted the former doctor's or the latter's opinion, but whichever is correct, the respondent plainly has a very serious ankle disability. A central point in the case, as presented below on behalf of the respondent, was the loss of his prospect of becoming a chiropractor and it is desirable to recount the effect of the evidence on that subject. The respondent was brought up on a small farm near Griffith in New South Wales, and went to school in that area, but spent his last school year at the "School Without Walls" in Canberra. There is no evidence as to the respondent's academic performance at Griffith. At the "School Without Walls", according to the Secondary College Record which is in evidence, the respondent studied four courses with predominantly academic content. They were: "Ways of Seeing", "People and How They Are", "Body Consciousness", and "The Environment and Us". In only one of those courses - the first-named - were his grades above average. A second document, "Supplementary Information for Tertiary Entrance", discloses that the respondent was not awarded an A.C.T. Tertiary Entrance Score. The reason for that does not appear from the evidence, but may be deducible from a note on the reverse side of the document, to the effect that the courses used for calculating the A.C.T. Tertiary Entrance Score are those courses identified by the Australian National University as being "accredited courses which involve theoretical study and verbal or numerical expression of the traditional academic kind and which are presumed by the University to indicate the likelihood of success in university studies". Another possibility is that the absence of an assessed Tertiary Entrance Score had to do with the fact that the respondent had his secondary education in New South Wales, except for the last year. The same document - the "Supplementary Information for Tertiary Entrance" - says that the respondent "completed a pattern which satisfies the minimum requirements to be considered for entry to the Australian National University and the Canberra College of Advanced Education ..." This note was, at the trial, treated as indicating "matriculation". The learned trial judge discussed the respondent's prospects at some length, saying among other things: "Having matriculated with his Higher School Certificate at the end of the year, i.e. the year before the accident happened, it was open to the plaintiff to commence University studies. His parents wanted him to become an electrical mechanic but he himself was not keen on that sort of a career. As previously stated, he was taking a year off before embarking on further studies, but he had his mind more or less set on qualifying as a chiropractor having been influenced to some extent by a friend who was enrolled ina course to that end. During the year off the plaintiff was happy to pursue farm type work, mostly of the light type." His Honour went on to say, in effect, that there was no certainty that the respondent would have become a chiropractor but he thought "he would have gone on to some form of tertiary education". His Honour concluded his discussion of future economic loss by saying: "But he is never going to be the professional man that I think he was going to be when he had this accident. I adopt a figure of $150,000 as a provisional sum for loss of earning capacity." The respondent's case was opened to the trial judge on the basis that he is "a man who likes an outdoor life". Some professions are conducted mainly in the outdoors, but most are not, and of course chiropractic is not. The respondent was given the benefit of an assessment of damages on the basis of a loss of earnings likely to have been gained in some profession. As appears from what has been said above, the respondent said in his evidence that when he left school he wanted to become an electrical mechanic, but that was mainly his parents' idea. His main desire "personally was in chiropractics". He agreed with a suggestion that he intended to qualify as a chiropractor. He had not ascertained that it was necessary for him to undertake a certain kind of science course in a university before becoming qualified as a chiropractor, nor did he know whether such a science course was available at the Australian National University as a first degree. There was no evidence as to whether Sydney University, or indeed any other university, would have been likely to accept himas a science student. He had made no enquiries about the School of Chiropractic, which he allegedly intended to make the foundation of his career. It should be added that between the time of his accident and the trial the respondent had attempted a tertiary course in horticulture at a Technical and Further Education college in Brisbane, but without success. He had also made enquiries about doing a course in naturopathy, but had done nothing further about that. As the learned primary judge remarked, it is ",.. notoriously difficult, particularly in the case of young people who have not completed their education, to estimate what their earnings would have been but for the injuries sustained. The younger the person, the more difficult is the exercise." It is unsatisfactory, mo doubt, to assess a plaintiff with no special record of achievement or prospects merely as an average person, without fastening on to any postulated future. It seems to me, however, to be a mistake (in general) to assess such a young man as having been likely to have followed a certain type of career merely because of evidence that he would have liked to have done so, without more. Here was a plaintiff who had never done any tertiary study, whose record at school was no better than average and who, so far as the evidence shows, had never had any employment except for short terms as a farm labourer. He had not troubled to find out about the requirements of the path he claimed to have had in mind to follow; to attach importance, in the assessment of damages, to the statement of a preference for a certain type of professional career appears to me to have been wrong. As a result of that statement, the learned trial judge was provided with a considerable quantity of evidence about the physical requirements of chiropractic endeavour and the likelihood of the respondent's being able to meet them; in my view, that evidence should not have been regarded as significant. No doubt many a young person who has not subjected himself or herself to the rigours of tertiary study may harbour an inclination to do so in the future. Absent any other indication of a likelihood that such a course would have been pursued, and successfully, then the Mere expression of a desire to do so should not have made a substantial difference to the approach to assessment of future economic loss. I therefore agree with the contention made, that the learned primary judge fell into error in awarding damages on the basis that the respondent had lost a good prospect of becoming a professional man - although I cannot agree with the view of the facts on which that contention was based. In my respectful opinion there was no evidence on which it could reasonably have been found that the respondent was particularly likely to have become a professional man; there was, in my respectful opinion, no foundation for that view other than the respondent's expressed interest in some varieties of fringe medicine. It appears to me that the assessment made by the learned trial judge was, in the respect I have mentioned, in error. It would ordinarily follow that it would be necessary for me to expound my own independent view as to the proper assessment of damages, being of opinion that the reasons of the learned primary judge are not supportable. However, I have had the advantage of reading a draft of the reasons of Morling and Miles JJ., and have noted that their Honours are of opinion that the assessment made below should not be interfered with. In those circumstances, it seems inappropriate to set out in detail the reasons for my own view as to the proper level of damages. T merely say that I would reduce the damages awarded by $40,000, on the basis that they included an excessive component for future economic loss. I would allow the appeal accordingly. teeny rr ocd & 8 £ poco ereatruscecy of the moe oe fur Judement herein of His Honcur Mr. Justice Pincus bee Trae CA s fe fe 7" Associate ATTACHMENT A Title of Action :TREVOR RAYMOND OLIVER and TIE Vv. File Number : No. ACT G39 of 1987 » Dates of Hearing : 14 March 1988 Judgment Delivered : 3 May 1988 Counsel for Applicant : Mr. A.J. Leslie QC with Mr. D. Andrews instructed by: Crossin Power Haslem Counsel for Respondent : Mr. W.d. Holt QC with Mr. J. Millar instructed by:: Pamela Coward and Associates as agents for G.H.Healing §& Co. Signed: . &.. Lidl. eee Date: 3 May 1988