GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v O'MEARA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBy P, Hope and SAMUELS JJA 24 October 1988, 24 October 1988 [1988] NSWCA 53 Damages — no question of principle — appeal dismissed. ORDER Appeal dismissed with costs. Hope JA This is an appeal from a decision of Thorley DCJ in two proceedings which were consolidated in which the plaintiff sought damages in respect of the injuries she had suffered in two accidents which occurred on 27 February 1985 and 1 March 1985. His Honour awarded the plaintiff a total sum of $347,965. In its appeal the GIO challenges his Honour's assessment of past economic loss, future economic loss and general damages. His Honour's judgment was given on 19 August 1987. For past economic loss, his Honour awarded, in respect of a period from the date of the accidents until the hearing, amounts totalling $42,400. His Honour's assessment of future economic loss was $165,900 and of general damages a total of $110,000 of which $60,000 was for the pre-trial period. As regards economic loss the appellant's submissions point to what are submitted to be errors in law and errors of fact. The principal error which is relied upon relates to future economic loss, and is concerned with his Honour's method of assessment. Instead of adopting the usual method of estimating the number of years for which the plaintiff would have continued to work but for the accident, assessing a weekly loss amount and using the tables to arrive at a present capital sum, his Honour took a weekly figure and made a discount for all the relevant factors by halving the period of years for which he considered the plaintiff would have worked. The plaintiff was 35 years of age at the time of the trial and had she continued to work until aged 60 she would have worked for 24 years. His Honour discounted for the fact that she had some residual earning capacity, that there would have been some temporal limit to her working span, and for the ordinary exigencies of life, by reducing the 24 years to 12 years. Using the five per cent tables and average earnings of $350 net per week, his Honour arrived at the figure of $165,900. It is submitted for the appellant that this method of assessment of future economic loss, which is apparently adopted in England, is an erroneous method. It is not a method which courts, including the High Court, have adopted in Australia and, so it is submitted, by concentrating on the earlier rather than the later period of the prospective working life of the plaintiff, it favoured the plaintiff. I do not know that an error of law is involved in the assessment but I think it is proper to consider what figure the court would arrive at if it adopted a normal or usual approach in this assessment. I will not deal with the history of the plaintiff's working life but it may be said that it is difficult to imagine a woman who would have worked harder before the time of the accident than the plaintiff. She was working but her husband was not 2 UNREPORTED JUDGMENTS working, having been injured and apparently being incapable of earning money. She had two young children, and she was the breadwinner. She was a nursing aide which, it is not in issue, is as hard a job probably as most women ever engage in. But as well as having that one job, she had, before the accident, over periods had two jobs, at times having only four and a half hours sleep. She was obviously a woman who was prepared to work as hard as she could and, in my opinion, for as long as she could, in order to keep her family going. The learned trial judge assumed, primarily, that she would have been expected to have worked to 60 years of age but he assumed that she may have ceased working before that time. With respect to his Honour, I rather doubt this. I would have thought that the plaintiff would have tried to work as long as she could and that she probably would have worked to 60 or very shortly before, and indeed, to counter-balance that possibility, there would be a prospect that if she could she would have worked for a longer period. Further, let it be assumed initially that she would have worked for 24 years and assess what would have been her estimated loss of future income, adopting the usual method of assessment. On the basis that her net weekly earnings were $350, discounting at a rate of 15 per cent and using the five per cent tables, one arrives at a figure of $219,525. If one adopts a figure of $300 per week one arrives at a figure of $188,165. This figure, and that is the figure based on $300 a week, is approximately $23,000 higher than the amount assessed by his Honour for future economic loss. His Honour based his assessment on a finding that the plaintiff would have earned, taking overtime into account, an average of $350 per week at Crookwell where she had gone about a year after the accident. It is submitted for the appellant that this figure is too high. I am not clear by any means that it is too high, but let it be assumed that $300 per week is an appropriate figure to adopt. As I have said, the result would still be some $23,000 higher than the $165,000 arrived at by his Honour. If Ican then go to the past economic loss. His Honour dealt with three separate periods. The first period was the 43 weeks during which the plaintiff and her family remained in Sydney before moving to Crookwell. His Honour assessed this loss on the basis of an income of $400 per week to arrive at $17,200. It is submitted for the appellant that this figure is too high and that it should be assessed on a figure of $350 per week. That figure was arrived at on the basis of some material which was tendered by the plaintiff, but was objected to by the defendant. den the tender was made and the objection taken the tender was deferred, and it does not appear to have been retendered subsequently during the course of the trial. On the plaintiff's evidence she would have been able to earn $400 a week. However, even if one assumes that the figure of $350 rather than $400 would have been her average income for this period of 43 weeks, there would not be a very substantial difference to the amount found by his Honour. It would amount to a little over $2,000. The next period dealt with by his Honour is a period of nine months in 1986, and thereafter the period from the end of 1986 to the time of trial. His Honour assessed the plaintiff's loss during these periods on the basis of estimated income of $350 per week net and awarded sums of $13,650 and $11,550 respectively. \ROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v O'MEARA (Hope JAB It is submitted for the appellant that the $350 was too high a weekly wage upon which to base the award, and it is submitted that it should have been $300 a week. This submission is, it is readily conceded, not based on any hard evidence, save for the submission that the plaintiff would have earned less in Crookwell than in Sydney. I see no reason to disagree with his Honour's conclusion, but even if one did reduce the $350 per week to $300 it would not make a considerable difference to the amount of the award. As against those reasons for diminishing, to some extent, the amount of the award for past economic loss, the plaintiff has filed a notice of contention challenging in five respects his Honour's calculations or assessment. First of all it is submitted that his Honour was in error in finding the plaintiff would not work until retirement. As I have already said, in my opinion the probability is that she would have worked until retirement, i.e., until 60 years of age, but there was a possibility that she would have stopped working at an earlier stage and of course a possibility that she would have continued working until she was older. The second matter raised in the notice of contention is the method of calculation as to the plaintiff's earning capacity in the future. I have already dealt with that matter. The third matter is the allowance for interest which his Honour assessed at $1,700, It is not in issue that that was an error and that the correct figure is $2,354. The next matter concerns future dental expenses. His Honour allowed a sum of $3,000 on this account and it is submitted that was too low a figure. The evidence shows that the range for this expense - and it is not in issue that there would have been some such expense - was between $2,760 and $7,920, plus a further sum of $450. It will be seen that this figure of $3,000, if re-assessed, would probably be increased. The other challenge was to the award of the sum of $5,000 in respect of future home care. No detailed submissions were made about this assessment but it is possible it also may have to be varied. The result is that if his Honour had assessed the plaintiff's future economic loss by the method usually adopted, he would have arrived at a figure of approximately $23,000 higher than that at which he did arrive. In relation to his assessment of past economic loss, it may be that some thousands of dollars could be deducted from the amounts which he found; on the other hand those amounts would have been offset by the various matters raised in the plaintiff's notice of contention to which I have referred. The remaining challenge by the appellant is to the award of a total of $110,000 for general damages. The plaintiff suffered most serious injuries and disabilities. Most of them resulted from her second accident. Her principal injuries were to her left shoulder, to her neck, a back injury and an injury to the right knee. As well as those injuries she had what his Honour described as a multiplicity of other injuries. The back injury was sufficiently bad to require a lumbo-spinal fusion to be effected. The knee injury necessitated an arthroscopy. The plaintiff, form being a woman who could work as hard as any woman could have, was reduced to a person who could do very little whether by way of work or by way of enjoyment of life, and she suffered continual pain not only directly from the injuries I have described by from headaches and other pains. I should have said when dealing with the question of economic loss that the plaintiff in my opinion would have had practically no residual working capacity at all. Dr Kendall plaintiff's capacity in these terms:- 4 UNREPORTED JUDGMENTS She will not be able to return to nursing and may not be suited for an occupation which requires sitting in one spot without ability to rise frequently. It will be necessary for her to be retrained formally in some other skill, although it is not clear what it is she could do. I think a part-time occupation probably would be the most suitable. Like Dr Kendall I find it quite unclear what it is she could do. In my opinion his Honour correctly accepted the plaintiff as a completely honest witness, and various possibilities were put to her as to forms of employment which she could undertake. She said that she would not be able to undertake any of them, and she gave what in my opinion were quite credible reasons why. No work has been suggested which she could undertake having regard to her enduring disabilities. It is possible that she may, on some occasions, have some short-term casual work, but I think that that is the most that can be said. In all the circumstances the plaintiff was entitled to a very substantial amount for general damages. However I have concluded that $110,000 was beyond a proper range. Having regard to all the circumstances I think that a proper award for the plaintiff would be in the sum of $90,000, i.e., $20,000 less than the total amount awarded by his Honour. If the court re-assessed and awarded the plaintiff $90,000 in lieu of $110,000 for general damages, that amount would be more than offset by the difference in the amount of her future economic loss if that amount had been assessed in the usual way. In these circumstances, applying the principles affirmed in Robinson v Riley, the Court should not set aside the award which his Honour made. In my opinion, in these circumstances, I would dismiss the appeal with costs. Kirby P I agree. Samuels JA I also agree. KIRBY P: The order of the court is appeal dismissed with costs. COUNSEL: Appellant: A. LESLIE QC (PR GARLING) Respondent: P. WEBB QC (G. PARKES) SOLICITORS: Appellant: GD CLARE Respondent: MICHELL SILLAR and BROWN