NOMINAL DEFENDANT v HUNT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Hope, PRESTLEY and MCHuGH JJA 6 May 1988 [1988] NSWCA 105 Damages Quantum — Excessiveness — No question of principle — Appeal dismissed. ORDERS Appeal dismissed with Costs. Hope JA In this matter the plaintiff was injured in a motor vehicle accident on 24 December 1979. The action which he brought to recover damages for his injuries was not heard until September 1986 and was heard by his Honour Judge Lloyd-Jones in the District Court. His Honour gave judgment for the plaintiff in the sum of $85,870 made up in this way: past loss of wages $12,746; future economic loss $34,000; general damages $30,000; interest $9,000; and out-of-pocket expenses $124. The appellant was the second defendant in the proceedings in the District Court, the appeal against the first defendant, the State Rail Authority of New South Wales having been dismissed by consent. In its appeal the Nominal Defendant challenges his Honour's assessment of past and future economic loss and general damages as being excessive. The plaintiff was born on 22 November 1949 and thus was 30 years of age at the time of the accident and 37 at the time of trial. He fell heavily on his right elbow in the accident and suffered a fracture of the right radial head. He was taken to Sydney Hospital where the fracture was discovered and was conservatively treated. He was then off work from 24 December 1979 to 24 February 1980. During some part of that time he carried his arm in a sling. Thereafter he returned to work as a bus conductor and continued that work for some time in circumstances which I shall describe later in relation to economic damage. At the time of the trial he was still employed in relation to the bus services in an office position The plaintiff of course suffered considerable pain at the time of the fracture and was continuing to suffer pain and associated disability at the time of the trial. Dr Herbert in a report dated 17 June 1986 stated that the plaintiff was complaining of persistent pain and weakness affecting his right elbow and hand. This affected him mainly if he carried anything in his right hand that is, in gripping. He also had difficulty with driving and could not hold a tennis racquet Swimming was also difficult because of the discomfort it caused. He complained of occasional attacks of locking in the elbow associated with a painful click, which occurred in the region of the radial head. The evidence which the plaintiff gave confirmed these continuing symptoms of disabilities and he gave other illustrations of the difficulties that he had. Thus he fell once and suffered considerable pain in his elbow for some weeks. He found that in buses if he struck the funny bone in his elbow, his elbow became very painful Although he had a driving licence, he could not drive because of the pain that he felt in his right arm after holding the steering wheel for some little time. 2 UNREPORTED JUDGMENTS He had previously played tennis and swum but he no longer engaged in either of these sports because of difficulties arising from his elbow. No medical practitioner gave oral evidence but reports from three were tendered by the plaintiff The first was that of Dr Herbert, to which I have already referred. Dr Herbert's opinion was that the plaintiff had residual signs and symptoms which were characteristic of a post-traumatic Chondromalacia of the radial head and that x-rays confirmed some deformity as a result of the fracture but did not show any significant degenerative changes at that stage. He thought that the plaintiff was fit to do the sort of work that he was then required to do but was unable to swim or, play tennis as a result of the injury. He assessed his then disability as representing approximately a 15% loss of normal function of his right arm. The doctor also said that there was a possible prognosis for post-traumatic degenerative arthritis, although this might take many years to develop. He finally said:- "It has been my experience that these types of symptoms can often be successfully relieved by a relatively minor surgical procedure involving decompression of the radial head. I will be happy to do this for him if you are agreeable" A report from Dr Bye dated 8 May 1985 was to a similar effect, although the doctor assessed the disability in the plaintiffs right upper limb as five per cent and made no reference of any kind to the possibility of the problem being relieved by any operation. The third doctor was Dr Rasanayakam, who gave a report on 16 September 1986 which was in general terms similar to those given by the other doctors. He did not assess he percentage of disability in the right arm. In a later letter dated 25 September 1986 Dr Rasanayakam gave particulars of the operation which had been referred to by Dr Herbert, which is apparently called a decompression operation In that letter the doctor merely gave the cost and what amount of time in hospital and convalescence would be required He did not express either in his report or in his second letter any opinion as to whether that type of operation was or was not likely to be successful. He did not advise that it should be undertaken. The plaintiff was not asked any questions by his counsel or by counsel for either of the defendants about the operation, whether he proposed to undertake it and, if he did not propose to undertake it, why. The only other Comment one should make about the medical position is that one of the doctors said that there was no evidence of exaggeration on the part of the plaintiff and, reading his evidence, I conclude that he did not exaggerate in court. Indeed he was cross-examined very little about his injuries and disabilities, most of the cross "examination going to the issue of liability which is not pursued in this appeal. The question arises whether in those circumstances an award of $30,000 general damages is so excessive that this Court ought to interfere with it His Honour Judge Lloyd-Jones described the matters I have described and referred to what he called a realistic probability that the plaintiff might develop arthritis. He also referred to the possibility of a future operation which would cost some $500, including hospitalisation. His Honour was in error in referring to the prospect of the decompression operation to the elbow being a realistic probability I have referred to the only evidence about the matter and in my opinion that makes the prospect not a probability but a mere possibility. As I have said, the only doctor who referred to it as something which might have success in relation to the plaintiff's condition was Dr Herbert. URJ NOMINAL DEFENDANT v HUNT (Hope JA) 3 I have no doubt that the award of $30,000 for general damages is high. However the plaintiff was only 30 years of age at the time of the accident. He has a disability with accompanying pain, which will continue to restrict his activities indefinitely. One would assume that he had some 40-odd years of life ahead of him at that stage and having regard to the evidence I have concluded that although high the award is not one that this Court should interfere with. As regards economic loss, the first challenge is to past loss of wages. The plaintiff returned to work on 25 February 1980 and continued to work for some years as a conductor. Then in 1981 the Authority decided to introduce an arrangement where buses were driven without conductors, and after a fairly short time buses no longer carried conductors. The options for the plaintiff, if he was to retain his employment with the Authority, was to become a driver or to become what was called a queue conductor, that is, somebody who issues tickets to persons waiting for buses, or to get some other job at a similar level with the Authority. The plaintiff gave evidence about this matter saying that when the question was first put to him he had told the Authority that he did not wish to take on driving as he felt he would not be a good enough driver. However, he also said that he adopted this approach because he did not know enough about the routes the buses would take to do it properly, and he was hoping to stay out of it longer before he went driving "so I wouldn't get lost and feel like a fool'. Later on he became more familiar with the bus routes and would have been able to drive them. However, after the accident he found that he was not able to drive them because of the condition of his elbow. there were two types of buses: Leyland buses, which did not have power steering, and Mercedes buses, which did have some form of power steering However he said that he was unable to drive either of these buses because of the condition of his elbow. The plaintiff was not asked any questions in cross 'examination in relation to this matter and there is no evidence to cut down the effect of what the plaintiff said. It is true, as has been submitted for the appellant, that there is no medical evidence which affirmatively supports this conclusion. However the plaintiff's claim that he has difficulty in driving is noted in the medical reports without comment. In the circumstances there is no reason why the plaintiff's assertion of his inability to drive the buses should not have been accepted by the trial Judge. The plaintiff was then in this position Had he become a driver he would have been paid weekly wages which would have increased his net return by $43 per week. Also, had he become a driver there was a possibility that he could have been promoted to the position of inspector. He could not be promoted to the position of inspector from the position of conductor. If he had become a driver, he could have got that further promotion. His medical condition after the accident thus left him in the position that he could not be promoted to be an inspector, even if he were otherwise qualified. The trial Judge assessed past economic loss on the basis of a net difference of $43 per week in the period from the time when he concluded that the plaintiff might have become a bus driver, namely, 1 January 1982, and the accident. In my opinion no error is shown in his Honour's approach to that question nor in his conclusion. As regards future economic loss, his Honour approached the question in the same way. the plaintiff continued as a conductor, in the sense of a queue conductor, for some time after the accident and then became a clerk in the Authority's office. It is true, as the appellant has submitted, that the plaintiff had 4 UNREPORTED JUDGMENTS obtained his Higher School Certificate and that at one earlier stage of his life he had worked in a bank. However, his Honour found that there was no evidence which had been put to convince him on the probabilities that the plaintiff's earning capacity would be greater than that of a bus driver. In my opinion that finding was right, and as a result of the accident he was precluded from becoming a bus driver. In relation to the submission based on the difference in wages of $43 per week, the learned Judge used the three per cent tables to produce the present value of future wages until the plaintiff reached the age of 65. That gave a figure of $40,592, which he discounted by 15 per cent to produce $34,500. It is submitted for the appellant that his Honour should have used a greater discount because of the advice of Dr Herbert in relation to the effect of decompression operations As I have indicated, that advice, which was the advice only of Dr Herbert and of none of the other doctors, was merely that there was a possibility that the operation would have success. That is, in effect, that some patients might have their elbows improved if the operation were undertaken. His Honour took that possibility into account but offset it by what he called the probability of the development of arthritis. His Honour was in error in referring to that prospect as a probability. It was only a possibility, but nonetheless as a possibility and it was a matter to which he was entitled to have regard in balancing the relevant matters to be taken into account in arriving at the proper degree of discount. Substituting possibility for probability, I would arrive at the same result as his Honour and discount the present value of the weekly loss over the relevant years by 15 per cent. In those circumstances there was no error made by his Honour which affected his assessment of the amount of future economic loss, and the appellant fails in this regard also. Accordingly I would dismiss the appeal with costs. Priestley JA I respectfully adopt the narration and analysis of the facts of Hope JA. So far as general damages are concerned, it is my opinion the materials before the trial Judge justified the figure he arrived at. I agree with the opinions expressed by Hope JA on the amounts allowed for past and future economic loss. In my opinion the appeal should be dismissed. McHugh JA I also agree with the orders proposed by Hope JA and with his reasons. HOPE JA: The orders of the Court are: the appeal is dismissed with costs.