JUDGMENT No. .AbOy 6%—~ CATCHWORODS Negligence — Appeal from A.C.T. Supreme Court against quantum of damages ~ inclusion of medical expenses overlooked by trial judge - assessment of past earnings loss - assessment of future medical expenses - assessment of loss of earning capacity. Matter No. ACT G82 of 1987 WILLIAM RONALD WILLIAMS v. COMMONWEALTH OF AUSTRALIA FORSTER, SPENDER & MILES JJ. CANBERRA woe 4 AUGUST 1988 2 4 AUG 1988 FEDERAL COURT AUSTRALIA OF PRINCIPA! REGISTRY. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY No.ACT G82 of 1987 ) ) ) ) ) ) ) GENERAL DIVISION ON APPEAL from a decision of His Honour Mr Justice Gallop of the Australian Capital Territory Supreme Court BETWEEN: WILLIAM RONALD WILLIAMS Appellant AND: COMMONWEALTH OF AUSTRALIA Respondent MINUTE OF ORDER JUDGES MAKING ORDER H FORSTER, SPENDER & MILES JJ. WHERE MADE H CANBERRA DATE OF ORDER 4 AUGUST, 1988 THE COURT ORDERS THAT; 1. The appeal be allowed for the purpose of increasing the amount of the judgment by $19,442-73, and thus' substituting judgment of $302,722-73 for the sum of $283,280 awarded. 2. That the appellant should pay nine-tenths of the respondent's costs in the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. 2 tn ere sa en ' ——-- IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY No. ACT G82 of 1987 ) ) ) ) ) ) GENERAL DIVISION ) ON APPEAL from a decision of His Honour Mr Justice Gallop of the Australian Capital Territory Supreme Court BETWEEN: WILLIAM RONALD WILLIAMS Appellant AND: COMMONWEALTH OF AUSTRALIA Respondent COURT: Forster, Spender and Miles JJ. PLACE: Canberra DATE: 4 August 1988 REASONS FOR JUDGMENT THE COURT : This is an appeal against an assessment of damages made by the Supreme Court of the Australian Capital Territory (Gallop J.) The appellant was quite seriously injured on 18 January 1984 when he fell, having tripped over a door wedge at Parliament House, where he was employed by the respondent as a_ security officer. He sued the respondent for damages on the footing that his fall was caused by the respondent's negligence Or, alternatively as a result of the breach by the respondent of its — a tt rn pn tes Sane ger —— 2. obligation as an employer. The issue of liability was resolved in the appellant's favour. Damages were assessed at $283,280 and judgment was entered for the appellant for this amount and costs. The amount of damages was made up as follows : General damages $50,000 Past economic loss 78,000 Fox v. Wood component 12,280 Loss of earning capacity 120,000 Future medical expenses 2,500 Home alteration and maintenance 500 Provision of domestic services 5,000 Interest on past general damages and past economic loss 15,000 $283,280 Complaint is made in the notice of appeal of the fact that the learned trial judge failed to include in this list an amount of $19,442-73 agreed out-of-pocket medical and related expenses. Counsel for the respondent before us conceded that this sum had been agreed, ought to have been included and, whatever might happen with respect to the other complaints about the assessment, damages ought to be increased by this sum. Complaint is also made of the amount assessed for past earnings loss, for loss of earning capacity, and for future medical expenses. The appellant asks that judgment for an increased amount be substituted for the judgment given and also for costs. 3. In order that the matter may be understood it is necessary to set out some background facts. The appellant was born on 14 March 1937, was 46 when he was injured and was 50 and a half at the time of the trial. At the time of his injury he was employed as a security guard at Parliament House, as we have said, and had been so employed for about 10 years. His work at Parliament House was at night and for the entire 10 years he worked part-time in the day time at another job. This was driving for Mayne Nickless. In addition to this somewhat exhausting work schedule the appellant was a champion power weight lifter in his class and age group and, at the age of 46, was in training to run his first marathon. Notwithstanding, and perhaps to some extent because of this physical activity, the appellant suffered from lumbar spondylolisthesis which he claimed was aggravated by his fall. He has not worked since the accident and was compulsorily retired from his job at Parliament House on the grounds of ill-health in May 1985. The learned trial judge arrived at the figure of $78,000 for past economic loss by considering the figures agreed between the parties for past net wage loss with respect to his Parliament House employment of $62,427-05 and with respect to his Mayne Nickless employment of $18,525. His Honour said "The aggregate of these two figures is $81,000. I discount that figure slightly to take account of past vicissitudes between the date of the accident and the date of trial and provisionally assess the sum of $78,000 for past wage loss". The accident was on 18 January 1984 and the trial took place in October 1987 some three years and eight months later. In view of the appellant's les 4, vigorous regime of athleticism and his already deteriorated back we are quite unable to say that his Honour was wrong to discount this figure by what amounts to approximately 1% per year. The matter of future medical expenses is also relatively easy to dispose of. His Honour said : "There is a claim for future medical expenses. The evidence is that it 1s costing the plaintiff at the present time $9.50 per week for medication. I think it 1s reasonable to allow that sum for say the next five years. I provisionally assess the sum of $2,500 for future medical expenses." The figure of $9-50 per week was in fact agreed between the parties and is the last figure on a page in the appeal book headed "agreed figures". The calculation of this figure is somewhat mysterious and hard to follow. The appellant gave evidence that he saw his doctor every three or four weeks in order, if for no other reason, to obtain further prescriptions for drugs. He said that each visit cost $19. These visits would cost somewhere between $4-50 and $5 per week. In addition, at the time of the trial, the appellant was taking an anti-depressant drug, Surmontil, at a rate which incurred cost of a little more than $4-80 per week. He also took Di-gesic but there was no evidence of the cost of these. He also took Indocid or Feldene at a cost which works out at $1-40 per week. However all this may be, the amount agreed for future medical expenses was $9-50 per week. In a report dated 11 May 1987 Dr Bremner, the 5. appellant's general practitioner, said that it was proposed to continue the anti-depressants for a few more months and then withdraw them very gradually over perhaps another six months. This had apparently not happened at the date of the trial but there is a plain indication that the most expensive drug in the appellant's list is expected to be withdrawn in due course. So far as the pain killers and anti-inflammatory drugs are concerned, his Honour was quite entitled to take the view that the appellant's need for these would become less. Dr Newcombe, the neurosurgeon, gave evidence of continual improvement between the end of 1985 and March 1987, although he says that there was no further improvement when he last saw the appellant on 30 July 1987, which is perhaps not altogether surprising in view of the shortness of the interval between the visits. In March 1987 the appellant was walking two kilometres at a time and had, so Dr Newcombe said, shown improvement. In view of the fact that it was expected that the use of Surmontil would be discontinued and the real possibility of further improvement by the appellant, we consider that the learned trial judge was quite right to place some limit on the allowance for future medical expenses. We are quite unable to say that to allow an amount calculated on the basis of five years at the current rate of expense without any discount for immediate payment or, because of the probability of the discontinuance of the use of Surmontil, was unreasably low and should be interfered with. There remains the question of loss of earning capacity. His Honour arrived at the figure of $120,000 by considering the agreed present figure for an employee at Parliament House y tee ee ee ee " 6. comparable to the appellant at $315 net per week with overtime and the agreed net figure for the appellant's part-time earnings at $95. His Honour went on : "Assessing an earning rate of $400 per week net, the lump sum necessary to compensate the plaintiff for loss of earnings to age 60 years, discounted at 3% with no allowance for interest on the principal sum, 1s about $180,000. I think the plaintiff is likely to get back to some sort of job which will produce income, even if that takes the form of some sort of self-employment. Doing the best I can, and using that figure of $180,000 as a guide, I provisionally assess the sum of $120,000 for loss of earning capacity". Two complaints were made about this assessment. First, that his Honour should have assessed damages under this head on the footing that the appellant remained in work until the age of 65 and second, that a reduction from $180,000 to $120,000, that is of a third, was a good deal too much to take account of vicissitudes and the possibility of return to work. We do not accept these two criticisms. The learned trial judge had the opportunity of observing the appellant when giving evidence and also of observing Dr Newcombe. Although Dr Newcombe did not think it probable that the appellant would return to any sort of employment he conceded that it was possible that he would do so. The appellant was quite apparently a stoical individual who, as we have said, by March 1987 was walking two kilometres at a time and had showed improvement in Dr Newcombe's view. Even after his accident the appellant ce ane 7. continued his interest in weight lifting and attended a gymnasium on about five days a week for from one to three hours in order to coach young weight lifters. He also attended on almost every week morning for physiotherapy or hydrotherapy and at the time of his trial was learning to play the organ. He has a special seat to enable him to drive a car and he has driven to Sydney and to Wollongong since he was injured. Earlier in his life the appellant had shown considerable commercial ability in the running and expanding of the business of a bakery in a_ country town. His Honour said : "The plaintiff is now 50 years of age. I do not think it is appropriate to calculate loss of earning capacity on the basis that the plaintiff will never return to the work force. He has a lot to offer an employer if he can adjust to pain and disabilities. I accept Dr Newcombe's opinion given in evidence that it is possible that the plaintiff could get back to some sort of employment within two to three years. The type of employment would probably have to be a sedentary job that permits him to move about and indeed he would probably need a sympathetic employer." We are quite unable to say that the learned trial judge was wrong to decline to assess the appellant's loss on the basis that he would never return to work. We are therefore not satisfied that he was wrong to discount the appellant's loss of earning capacity on the footing that he would return to some form of paid work. The amount by which compensation for the appellant's loss of earning capacity should be discounted because of the possibility of future employment and because of the 8. ordinary vicissitudes was a matter for the trial judge. We point out that the appellant's future was likely to be affected by his pre-existing back condition and the vigorous physical life which he was leading before the accident. We mention again power lifting and the taking up of marathon running at a comparatively advanced age. There was in addition the likelihood that because of shift changes for security personnel at Parliament House the appellant would not be able to do both of the jobs he had been doing. There was therefore a measure of uncertainty as to whether he would be able to do two jobs and, if so, with what net return. For these reasons the amount assessed for future earnings loss should have been considerably discounted. His Honour chose a particular method of calculation regarding the appellant as working until aged 60 and then discounting the result by one third. We are unable to say that he was wrong to calculate in this way. Moreover, what is perhaps more important, the global sum arrived at by his Honour appears to us to be well within the appropriate range for a plaintiff in the position of the appellant. As we have said, the amount assessed must be increased by $19,442-73 omitted from calculation no doubt by inadvertence. The appeal is allowed for the purpose of increasing the amount of the judgment by the amount overlooked and substituting judgment for $302,722-73 for the sum of $283,280 awarded. We are informed by counsel that when the error in the 9. judgment was discovered the solicitor for the respondent agreed to facilitate an amendment of the judgment by the use of the slip rule or in some other way but the appellant's solicitor declined this offer as he had decided to appeal against the judgment in any event. In these circumstances we consider that as the respondent has been substantially successful in the appeal the appellant should pay nine-tenths of the respondent's costs. I certify that this and the 8 preceding pages are a true copy of the Reasons for Judgment of the Court. Associate: bd F Pep Dated: 4 August 1988 Mr P. Sheils, Q.C. with Counsel for the appellant Mr B. Meagher Messrs Pamela Coward & Associates Solicitor for the appellant Mr R.E. Williams Counsel for the respondent Australian Government Solicitor for the respondent Solicitor Date of hearing : 5 July 1988 Place of hearing : Canberra tren aes wa Sortie