QUIST v GARDETT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Hope, MAHONEY and MCHUGH JJA 14 November 1988, 25 November 1988 [1988] NSWCA 123 DAMAGES — quantum — injury to arm and shoulder — plaintiff — born 1963 at a considerable employment disadvantage because of disability — $35,000 for future economic loss — award for future economic loss doubled — no question of principle. Hope JA I agree with McHugh JA. Mahoney JA I am in agreement with the statement of the facts set forth in the judgment of McHugh JA. I am also in agreement with his Honour's formulation of the issues. As his Honour has indicated, unless the amount awarded in respect of loss of economic capacity for the future is appealably low, it is not proper for this Court to intervene. In quantifying the plaintiff's loss of economic capacity, his Honour was required to form a judgment, to the extent that a judgment can be formed in respect of such matters, as to the extent to which, having regard to his disabilities, the plaintiff would be able to obtain and retain employment in the future. There are two aspects of this: what work he would be able to do; and whether he would be able to secure and retain work that he could do. It was open to the learned trial judge to conclude that there was a comparatively wide range of work, albeit at a level requiring basic skills, which the plaintiff could do. The medical evidence provided a basis for a conclusion of this kind. The evidence given by individual witnesses called by the plaintiff as to his work experience since the accident might have supported the conclusion that the range of work the plaintiff could do was less than some at least of the doctors had suggested. But the assessment of that evidence and the evidence of the doctors was essentially for the learned judge. It was a matter in which his assessment of the plaintiff and the witnesses he called and their acceptability would, I believe, have played a significant part. I do not think that this Court can properly interfere with that assessment. His Honour was, I infer, conscious of the difficulty which a plaintiff with an obvious physical difficulty would encounter in obtaining work that he could do. His Honour referred to, for example, rehabilitation assistance. And he had in evidence before him details of steps taken by bodies such as the Commonwealth Employment Service. In his assessment of this matter, his Honour concluded that the plaintiff would be unemployed for one seventh, or perhaps one sixth, of his future working life. He would, on this measure, look to unemployment which, if an average be relevant, would be of the order of seven or eight weeks per year. His Honour was entitled to infer that, once the plaintiff obtained suitable employment, he might well remain in it for a considerable period but that he might require a substantial time to obtain it. 2 UNREPORTED JUDGMENTS To this point, I see no reason for interfering with his Honour's assessment. But Mr Petty, for the plaintiff, placed stress upon the fact that, since the accident, the plaintiff had sought to obtain employment and had been unable to obtain or retain employment for a significant period or periods. And, as he suggested, such cross examination as occurred limited the extent to which adverse inferences could be drawn against the plaintiff in this regard. The argument suggested, in substance, that that experience should be seen as typical of what would occur in the future. His Honour did not accept that what had happened to the date of trial was a true measure of what the plaintiff would be able to do in the future. He saw the plaintiff and he had evidence of what he had done. In particular, he referred to the plaintiffs activities in relation to the acquisition and disposal of a number of motor vehicles. It is clear, in my opinion, that his Honour was critical in his assessment of the plaintiff and his evidence in this regard. But unless this Court is in a position to set aside his Honour's conclusion on this matter, there is no basis for adopting an assessment of his future position different from that adopted by his Honour. I do not think that this Court can properly overturn his Honour's assessment of the significance of the plaintiff's employment history to the date of trial. He saw the plaintiff and the witnesses he called. His assessment of their credibility was of significance. Ihave considered whether, accepting his Honour's assessment of the plaintiff's economic capacity, the quantum of the award is so low as to warrant inter reference. But an assessment of economic loss of the order of one sixth or one seventh of his former capacity, coupled with the conclusions formed as to the work which he would be able to do, does not make an award of $35,000 so disproportionate as to be beyond the scope of a sound discretionary judgment. For these reasons, I would dismiss the appeal with costs. McHugh JA In an action for damages for personal injuries heard in the DistrictCourt, Freeman DCJ awarded the plaintiff the sum of $142,204.81. The plaintiff appeals against the inadequacy of that award. He contends that the award of $35,000 for the component of future loss of income and the award of $55,000 for the component of pain, suffering and loss of enjoyment of life were inadequate. The nature of the case. The plaintiff, who was born on 21 Nay 1963, was injured in a road traffic accident which occurred on 19 June 1981. He sustained a concussive head injury, musculo ligamentous injuries to the cervical and lumbar spines, a fracture of the right clavicle and right humerus with associated radial nerve palsy and a fracture of the left femur. The plaintiff is left handed. He was taken to the Nepean Hospital. His fractures were reduced under anaesthesia. A Thomas splint was applied to the fractured femur. The fractured right humerus was manipulated. On 23 June 1981 a K nail was inserted in the fractured left femur. After the reduction of the fractured right humerus failed to maintain position, a Rush nail was inserted in the humerus on 30 June 1981. On 21 July 1981 the plaintiff was transferred to the Governor Phillip Special Hospital. At that stage his arm was in a sling and he required the use of a wheelchair. He was gradually mobilised and given extensive physiotherapy. He was discharged from hospital on 28 August 1981. At that time he required the use of a walking stick and wore a splint on his right hand. He continued to have physiotherapy. He returned to his pre accident employment with Nock and Kirby Ltd on 1 November 1981 on light duties. URJ QUIST v GARDETT (McHugh JA) 3 The plaintiff was educated to the School Certificate level but obtained low examination results. After leaving school he commenced a refrigeration mechanic's course at a technical college. But he abandoned the course when he gained employment as a sales assistant with Nock and Kirby Ltd at its Kingswood Building Centre on 14 July 1980. His work involved a considerable amount of heavy lifting. The store manager regarded him as a good worker. The trial judge found that the plaintiff was happy in his employment with Nock and Kirby Ltd and was apparently competent and sensible enough to have remained there for a long time. On 2 July 1983 Nock and Kirby Ltd was taken over with the intention that some of its stores, including the Kingswood store, would be closed down. In late July 1983 the plaintiff was interviewed by the personnel manager of the takeover company who found that the plaintiff was lacking in aptitude for or experience in office duties which he was carrying out after the take over. On 5 August 1983, the plaintiff's employment was terminated. On 10 October 1983 the plaintiff was admitted to hospital for tendon transplant surgery on his right arm. He was discharged on 14 October 1983. His right arm was in plaster for eight weeks. He then had physiotherapy for a year. The plaintiff was re admitted to hospital on 6 February 1984 for removal of the Rush nail and the K nail. The plaintiff was on sickness benefits until 13 March 1984 when he went on to unemployment benefits. He registered with the Commonwealth Employment Service. Through the efforts of that Service, he obtained employment as a clerical assistant at the Penrith City Council on 29 January 1985. This employment was made possible by a Community Employment Scheme which lasted until 30 August 1985. The plaintiff was employed as a Revenue Clerk. His duties consisted of looking after aspects of banking, reconciling cash registers, and doing general clerical work. Evidence from officers of the Penrith City Council indicated that, although the plaintiff was reliable and co operative, he had little aptitude for clerical work. Mr Lennon, his immediate superior, said that he would not recommend him for appointment to a permanent position as a clerk. Mr Lennon said that the plaintiff had physical difficulty in counting cash and that he was clumsy and slow. Because of the disability to his right arm, the plaintiff could not carry heavy banking bags. Mr Lennon also said that the plaintiff's ability to count money did not improve during the period of employment. Mr Smith, an assistant accountant, said that, although he was fairly satisfied with the plaintiff's work, he was not as good as a lot of other people who had been through the Council "on similar schemes". However, Mr Smith said that he thought that the plaintiff was certainly suitable for employment as a storeman and that he could cope with "less technical clerical work". He gave as illustrations taking orders over the telephone and reconciling money. Mr Smith said that the plaintiff could do manual work which was not heavy. During his period of employment with the Council, the plaintiff applied for positions which the Council advertised internally. His applications were unsuccessful. Positions for which he applied included clerical positions. He also made an application for a surveyor's chainman position. From 30 August 1985 and up until the trial in March 1987, the plaintiff was virtually unemployed. Between 30 January and 4 February 1986 he worked as a car detailer. He expressed the opinion that he was good at the work but that he was slow and could not make much money out of it. He said that he left because the work caused his legs and arms to ache. He also worked for a few days 4 UNREPORTED JUDGMENTS cleaning down walls and doing sanding in his brother's of house painting business. The plaintiff also earned small sums of money by assisting a friend to detail and clean up cars. In November 1986 the appellant sat for positions as clerical assistant and clerical administrative assistant in the Public Service. It was common ground at the trial that the plaintiff's results were so poor that he would not be offered clerical employment in the Public Service. The trial judge's findings The trial judge basically accepted the evidence given by the plaintiff at the trial. His Honour summarised the main disabilities of the plaintiff as follows: "The injury to the radial nerve required tendon transplants to be performed in an attempt to restore some wrist and finger functions. That endeavour was not particularly successful and the Plaintiff is left with a wrist drop and a very limited range of finger adduction and extension, The injury to the shoulder has caused him to be left with an inability to extend his arm or to raise it above the horizontal or to adduct it even to the horizontal and the shoulder is the site of aching pain which he says is there nearly all the time. The fracture site of the humerus is the site of pain but only intermittently. He has numbness over the dorsum of his right hand and although he can form a fist or make a grip with the fingers of the right hand, he says, and I accept, that he has lost considerable power so to do. He constantly wears a splint so he says and I accept, because the film taken of his unawares shows him wearing the splint and indeed the most cursory examination of the condition of his right forearm and wrist serves to bear out his contention that that area of his body is constantly covered by the splint. He had a head injury with some loss of consciousness and some retrograde amnesia. That was productive, apparently, of some headaches for a while but there appears, fortunately, to have been no long term result from that particular injury. He suffered also a fracture of the left femur which has left him with, apparently, some rotational deformity, which is not detected by most of the doctors who examine him." His Honour accepted that the fracture of the plaintiff's femur had some effect on his stability and that it was the site of some aching and pain particularly during cold weather and after long standing when he was also likely to get swelling of the ankle. His Honour also accepted that the injury to the plaintiffs cervical spine gave him intermittent discomfort and that repeated and prolonged flexion of the low back was productive of discomfort. His Honour allowed the sum of $55,000 by way of general damages for pain and suffering. He said that, although he accepted the plaintiff's evidence, he did;not think that some of his endeavours to obtain employment had been as well guided as they might have been and that his efforts were not as aggressive as they should have been. His Honour thought that the plaintiff could have obtained more employment than he had. He was critical of the failure of the plaintiff to undergo rehabilitation and said that, if the plaintiff had pressed his worker's compensation rights more strongly, the insurer may have directed him to a rehabilitation program. The judge said that, although the plaintiff had not been very successful in obtaining employment to date, he would expect that after the cessation of the litigation he would have a more positive attitude towards rehabilitation and make a more aggressive series of attempts to obtain employment. His Honour concluded that the plaintiff would spend the bulk of the next forty years in employment. Nevertheless, the judge concluded that the plaintiff would be "at a URJ QUIST v GARDETT (McHugh JA) 5 considerable disadvantage because of his disability" and that he was "much more likely to spend longer periods between jobs than he otherwise would have been". His Honour assessed the damages for future economic loss on the basis that the plaintiff would "spend fifteen per cent or so of his time unemployed over the next forty years". The challenge to his Honour's statements concerning employability His Honour's statements concerning the plaintiff's failure to obtain more employment were concerned with the period to the date of the trial. Because his Honour concluded that the plaintiff had not obtained all the employment which he should have obtained, he reduced his damages for loss of income for the pre trial period from $18,000 to $16,000. However, Mr Petty, counsel for the plaintiff, contended that his Honour's statements concerning the pre trial position were based on the false premise that the plaintiff had not exploited his working capacity and that this premise had influenced the award for future income loss. He also challenged the judge's finding that the plaintiff had not been sufficiently aggressive in obtaining employment. The plaintiff gave uncontradicted evidence that he had sought employment as a salesman in paint shops, hardware stores and a motor shop. He was also registered with the Commonwealth Employment Service. Moreover, as Mr Petty pointed out, there was no express evidence of any lack of "aggressiveness" in the plaintiffs attempts to get work. Nevertheless, I do not see any appealable error in relation to his Honour's findings on these matters. His Honour had the advantage of seeing the plaintiff and the benefit of a film which was taken of the plaintiff and which showed him doing work on his car. The evidence also indicated that the plaintiff was a quiet, retiring person. It may well be that his Honour took the view that the plaintiff's personality and the limited evidence concerning his attempts to obtain employment indicated that he had not pursued employment opportunities as diligently as he might have. In addition the plaintiff had what his Honour described as an "obsession" with motor vehicles. Between the date of the accident and the date of the trial, he had purchased or swapped six motor vehicles on which he worked. His Honour may have concluded that the plaintiff was more interested in his cars than obtaining employment. The plaintiff also conceded that he had sought rehabilitation while employed with the Penrith City Council but had been informed that it was not available to him while he was employed. Nevertheless, he made no attempt to undergo rehabilitation training while unemployed. I think that his Honour's opportunity to observe the plaintiff, both in person and on film, together with the evidence concerning his failure to undergo further rehabilitation training and his "obsession" with cars prevent this Court from holding that his Honour erred in concluding that the plaintiff could have done more to obtain employment. Mr Petty also objected that the plaintiff was denied natural justice because his Honour had taken into account the question of his workers' compensation rights without giving the plaintiff an opportunity to deal with the matter. However, I do not think that his Honour used the issue of workers' compensation rights against the plaintiff. His remarks on that subject were merely a comment that, if the plaintiff had pressed his workers' compensation rights more diligently, he may have been directed by the insurer to rehabilitation. The inadequacy of the award for future economic loss. By any standard, the award of damages for future economic loss was low. The plaintiff was seriously injured, he had permanent disabilities, and at the trial had a working life of over forty years ahead of him. Moreover, for practical purposes 6 UNREPORTED JUDGMENTS he had been unable to obtain employment between the date of his dismissal by Nock and Kirby Ltd on 30 August 1985 and the trial in March 1987. He has little prospect of obtaining employment in a clerical capacity. His physical disabilities make it difficult for him to do any form of manual labour which involves heavy work. Probably his employment capacity is confined to non heavy, unskilled work. Moreover, wearing a splint on his right arm, as the plaintiff needs to do, will not assist his employment prospects. There was some disagreement among the medical witnesses as to the plaintiff's working capacity. The most favourable evidence from the defendant's point of view was that expressed by Dr DJ Bray, an orthopaedic surgeon. Dr Bray said that the plaintiff was "going to have some trouble finding useful employment". But Dr Bray would place no absolute restrictions upon his activities. He thought that the plaintiff's left leg would not interfere with his employment abilities and that "although his right upper limb may give him trouble managing some activities, it should not stop him doing most normal activities". Dr GL Walker, a neurologist, also expressed the opinion that while the function of the plaintiff's right arm was reduced by "perhaps 30% it would certainly not preclude all activities and there seems no reason why he should not be able to obtain many other forms of employment." I do not think that those opinions are inconsistent with the conclusion that generally the plaintiff will only be able to do unskilled work of a non heavy nature. Moreover, Professor Jones, the director of rehabilitation medicine at Prince Henry Hospital, who saw the plaintiff in October 1985, expressed the view that he "would not be able to return to labouring work and standing for long periods of time would be contra indicated". Professor Jones expressed the view that the plaintiff should "pursue his clerical assistant's exam for the Public Service and to enter that service if possible". Otherwise, Professor Jones suggested that clerical duties in open industry would be suitable for him. The plaintiff's aptitude for clerical work, however, will prevent him from obtaining employment in most forms of clerical activity. On Professor Jones' analysis, of the plaintiff's capacity, he would seem confined to obtaining employment in light, unskilled work. If the plaintiff's pre accident employment had continued he would have been earning $231.60 net per week at the date of the trial. In addition he had the possibility of over time which he had worked from time to time. Mr Petty pointed out in his argument that the award of $35,000 represented a loss of approximately $33.20 net per week over the balance of the plaintiffs working life. A loss of only $50.00 per week, which is less than 25 per cent of what the plaintiff might have earned in a suitable occupation would have resulted in an award of approximately $50,000. The plaintiff's limited employability in the labour market, as evidenced by his failure to obtain any permanent employment since 30 August 1985, leads me to the conclusion that he will suffer a considerable loss of income in the future. In so concluding I have not overlooked that the trial judge though. that the plaintiff could have obtained more employment. But it needs to be emphasised that, nevertheless, his Honour only reduced the wage loss by 11 per cent. I would assess the future wage loss of the plaintiff as at least 30 per cent of what he would have earned but for the accident. I would double the sum which his Honour awarded. The award of general damages. URJ QUIST v GARDETT (McHugh JA) 7 His Honour awarded the sum of $55,000 for pain and suffering. Although this amount would not by itself constitute appealable error, my conclusion that his Honour erred in assessing future economic loss means that this Court has to re assess the damages. I would award the plaintiff the sum of $65,000 for pain, suffering and loss of enjoyment of life. Other elements in the award of damage His Honour awarded interest on the basis that half the amount awarded for pain and suffering was for the period until the date of the trial. I would not interfere with his Honour's assessment for the period to the date of the trial but I would apportion the increase in this component to the post trial period. Consequently, no adjustment for interest is called for. No challenge was made to the other components of the award of damage, and I see no reason to interfere with his Honour's assessment. In the result his Honour's award of $142,204.81 should be increased by $45,000 to $187,204.81 to date from 1 April 1987. Order The appeal is allowed. The verdict and judgment for the plaintiff in the sum of $142,204.81 is set aside. In lieu thereof there should be substituted a verdict of $187.204.81. The verdict and judgment are to take effect from 1 April 1987. The defendant must pay the costs of the appeal and the action. By majority: 1. Appeal allowed. 2. Verdict and judgment for plaintiff set aside. 3. In lieu thereof enter verdict and judgment for plaintiff in the sum of $187,204.81 to take effect from 1 April 1987. 4. Defendant to pay costs of the appeal and action. Counsel for the Appellant: G PETTY Instructed by: RP O'BRIEN, BYRNE and Co Counsel for the Respondent: P BELL Instructed by: R AQUILINA