STATE RAIL AUTHORITY OF NEW SOUTH WALES v FEDA ALBOUCH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, CLARKE JA and Hope AJA 15 August 1989, 15 August 1989 [1989] NSWCA 191 Gleeson CJ This is an appeal against a decision of his Honour Judge Dunford inthe District Court given on 29 October 1986. Counsel for both parties have indicated that following this appeal they will provide an explanation of how it came about that the appeal took nearly 3 years to come on for hearing in this Court. The matter before the learned trial Judge involved the assessment of damages arising out of personal injuries suffered by the respondent in March 1983. On the 1 March 1983 the respondent was a passenger on a train that was derailed at St Marys Station and subsequently she sued the State Rail Authority of New South Wales for damages for the personal injuries suffered by her in that accident. Liability was admitted and the matter proceeded for assessment only. The respondent was aged 15 years at the time of the accident and was in Year 9 at High School. She was aged 18 years at the time the matter came on for hearing before his Honour Judge Dunford. The evidence before his Honour consisted of the oral evidence of the plaintiff and a number of doctors' reports and associated documentary evidence. His Honour found the respondent to be a truthful witness and accepted her oral evidence. He found that as a result of the accident she was unconscious for a short time and suffered shock which caused her to weep and have difficulties in the period immediately following the accident. Since then she had occasional nightmares about the accident and was still fearful when travelling on a railway train. However, her main injuries were to her left wrist. She suffered a soft tissue sprain in that area with chronic tendonitis and also developed a traumatic ganglion which was surgically excised, but which had reappeared. His Honour, in his reasons for judgment, recounted the effect of the medical evidence and came to deal with the question of the respondent's employment history in the following terms: "After leaving school she enrolled at the Granville Technical College in a dressmaking course but was not notified by the College of when to report and, owing to the difficulties with her wrist she did not follow this up. She obviously, however, had a flair and desire to be involved in dressmaking as she obtained a position as a machinist with Hillcrest Clothing Pty Limited and commenced there in February 1985. However she had difficulties doing the work because of her left wrist and this is adverted to by Dr Donaldson in the report to which I have already referred. She tried to cover up her disabilities from her employer for some time, but ultimately had to go on light duties, and shortly after she was dismissed owing to her incapacity to do the ordinary work, and the lack of availability of light work. Since then she has tried without success to obtain other work, she is not trained for anything else and her efforts to obtain work through the Commonwealth Employment Service have been unsuccessful ". 2 UNREPORTED JUDGMENTS His Honour went on to say he had no doubt that in due course she would obtain other work but he considered it may take her some years to find work which she could either do without using her left wrist or for her left wrist to improve sufficiently to enable her to do work similar to the work she was doing formerly. When his Honour came to making the assessment of that part of the damages related to loss of wages up to the date of the hearing his Honour employed a method which is not called into question in this appeal. He calculated the loss of wages which had been suffered by the appellant over the period up to the date of the trial and he then deducted from that sum the amount of unemployment benefits which had been received up to that date. It is common ground on this appeal and was apparently common ground at the hearing, that that was a proper course for his honour to take compare Duncell v Renown Plating Co [1976] VR 501 and Redding v Lee 57 ALJR,393. What is a matter of contention on this appeal, however, is the approach taken by his Honour in relation to that part of the respondent's claim in which she sought damages to compensate her for the loss of future earning capacity. In that regardhis Honour said: "In respect of the future, as I have said, I consider it will be some years before the plaintiff is able to return to the workforce on a remunerative basis owing to the disability in her left wrist which has already persisted for three and a half years and so I don't anticipate the recovery of reemployment will be spontaneous or in the immediate future. Even after she returns to work there will probably be times when she will need to take time off work because of the wrist or alternatively there may still be some positions which she will be unable to work in which would otherwise be available to her. Taking all these factors into account I propose to allow future economic loss for 5 years at the current wage she would be earning, namely $154 nett per week; however in view of the short period involved, I only propose to discount this by ten percent and applying the three percent tables I calculated this amount at $33,610.00 and taking all those accounts together I get an amount of $62,516.00." The point that is argued on this appeal is that there is an inconsistency between the approach taken by his Honour in relation to calculating past loss of wages which involved a deduction of unemployment benefits and the approach just stated in relation to computation of loss of future earning capacity; in particular it is submitted that if his Honour were minded to base his calculation of damages in respect of future earning capacity on the level of wages being currently earned, or the level that the respondent would currently be earning but for her incapacity, then he should have deducted unemployment benefits which she would receive in the future. There are two things to be said about this submission. The first is that counsel for the appellant frankly acknowledges the point was not taken at the hearing If it had been taken it is quite possible that his Honour would have had to embark upon a closer consideration of the circumstances in which the respondent was at the time of the trial receiving unemployment benefits and indeed may well have had to receive evidence on the subject. There is a superficial inconsistency between his Honour's finding of incapacity for work on the part of the respondent and the circumstance that she was receiving unemployment benefits as distinct from sickness benefits but, since this was not an issue at the trial, nobody explored the matter in any detail. URSTATE RAIL AUTHORITY OF NEW SOUTH WALES v FEDA ALBOUCH (Hope AJA) 3 The second point to be made is that it is far from clear that his Honour's reasoning does involve the inconsistency attributed to it. In my view all that his Honour was intending to say was that he proposed to resolve the various elements of uncertainty connected with the computation of damages for loss of future earning capacity by a method which involved taking the current wage that the respondent would be earning at the time of the hearing but for her injury and multiplying that by the period of five years. This was nothing more than a method of estimation and was not intended to be a precise calculation. In my view there is no necessary inconsistency between the approach taken by his Honour to this aspect of the computation of damages and the approach which he had earlier taken in relation to the calculation of loss of wages up to the time of the trail. However that may be, since the point was not taken at the hearing and since, if it had been taken, the course of evidence may well have been different and the learned judge may have had to make findings of fact that do not appear in his reasons for judgment, the point is not one which the appellant should be permitted to raise at this stage of proceedings. The remaining grounds of appeal have been argued succinctly and I propose to deal with them in the same way. It was submitted that the selection by his Honour of a period of five years as that on which to base his estimate of loss of earning capacity was over generous to the respondent and that a more appropriate basis for estimation would have been three years. In my view what was involved was a discretionary judgment on his Honour's part and the method of computation adopted by him, and in particular the selection of five years as distinct from three years, was well within the discretion open to his Honour. There is, I consider, no reason why this Court should interfere with Honour's decision in that regard. Next, it was submitted that the assessment of general damages in an amount of $20,000 was excessive. Once again, in my view, the selection of this amount was well within the area of discretion open to his Honour and there is no occasion for this court to intervene. It was submitted that there was no evidence, or no sufficient evidence, to support the finding that the respondent suffered from chronic tendonitis as a result of the trauma. There is such evidence and it appears at 44V in the report of Dr Maniam dated 3 December 1985. Next it was submitted there was no sufficient evidence to justify the conclusion that the ganglion earlier referred to was the result of the trauma. In my view view there was such evidence and the evidence was sufficient to justify the finding made. The evidence appears on 42 of the appeal papers in the report of Dr Donaldson dated 11 July 1985 and in 56-57 of the appeal papers in the report of Dr Collins dated 27 October 1986. It was then submitted his Honour was in error in finding as a fact that the respondent lost consciousness at the scene of the accident. The respondent's evidence was accepted by his Honour. She told the Court she had lost consciousness and the finding of fact made by his Honour was amply supported by that evidence. In the circumstances I am of the opinion that the appeal should be dismissed with costs. Clarke JA I agree. Hope AJA I agree. The order of the Court is that the appeal is dismissed with costs. UNREPORTED JUDGMENTS Counsel for Appellant: D Elliott Solicitor for Appellant: FD Thompson Counsel for Respondent: GA Laughton Solicitor for Respondent: Astley Thompson