EDWARD MIZZI vy MURGATROYD NOLA JOAN MIZZI_ v MURGATROYD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, Hope and PRIESTLEY JJA 10 March 1989, 10 March 1989 [1989] NSWCA 145 DAMAGES — ADEQUACY — IMPAIRMENT OF EARNING CAPACITY — NO QUESTION OF PRINCIPLE Clarke JA There are two appeals before the court brought, respectively, by a husband and wife in respect of injuries that they received in a motor vehicle accident on 14 February 1982. On that occasion the male appellant was driving a vehicle in Chittaway Road, Ourimbah with his wife as a passenger when it was involved in a head-on collision. Liability was admitted and the trial judge was concerned only to assess the damages. It is I think convenient to deal with the appeals separately, although it must be recognised that there is a degree of inter-relation between the claims. I will deal initially with the appeal brought by Mr Mizzi. His Honour was concerned to consider a complex claim that involved compensation in respect of past.and future general damages, past and future economic loss and past and future out-of-pocket expenses. All of Mr Mizzi's claims for economic loss were rejected. The appellant has before this court accepted the finding that he had failed to establish economic loss in the past. Counsel for the appellant also accepted that his Honour was not in error when he declined to accept one basis upon which the claim for economic loss in the future was put. That was a claim for a specific type of loss reflecting consideration of the appellant's business records. Counsel does, however, challenge his Honour's conclusion that the appellant had not made out a case for compensation for some impairment of his earning capacity. The way the case was put before us was that his Honour's findings as to physical disability necessarily should have led to a conclusion that there had been some impairment of earning capacity. This, it was recognised, could not be measured by reference to weekly allowances or tables. Rather, it was said that the appellant had shown an entitlement to compensation to cushion him from the chance of loss in the future or as a form of insurance against loss in the future. This approach requires a consideration of his Honour's findings in the light of the fact that the appellant was trained as a carpenter. He had shortly prior to the accident worked as a subcontract carpenter. At the time of the accident he had become self-employed in a window installation business. Initially he was concerned to install timber windows but some time after the accident he changed the focus of his business to the installation of aluminium windows, which are somewhat lighter. Despite some fairly poor returns from his business in 1981 and 1982 he had in latter years built it up so that it was returning him a good income. Obviously this was the reason why the appellant did not challenge the decision denying him an award for economic loss in the past. 2 UNREPORTED JUDGMENTS At the time of the trial and of the judgment the appellant was still working in his business installing aluminium windows. He employed a staff of between two and five persons, although on one occasion his staff rose to about thirteen. The people he employed did, it would seem, most of the heavier work. Nonetheless, the appellant himself engaged in the physical work of installing windows, although he tended to leave most of that work to his employees. He did, however, like working on the job and performing the physical work himself. It is in that context that one comes to consider his Honour's finding. The relevant finding was as follows: "T find that Mr Mizzi sustained a mild laceration to his right knee and a mild ligamentous strain to the cervical spine and an injury to his right shoulder and right knee as a consequence of the motor vehicle accident. I find that he continues to suffer pain to the neck of moderate severity when the head is turned quickly from side to side. I also find he has symptoms of pain of moderate severity in the right shoulder and knee joints when these joints are placed under stress or strain. These symptoms may persist into the indefinite future but may be relieved by cortisone injections." In summary, therefore, his Honour found that the appellant continued to suffer from some symptoms relating to neck, shoulder and right knee disabilities. It is not suggested, nor could it be suggested, that the symptoms were severe. The neck symptoms were of moderate severity and only occurred when the appellant's head was turned quickly. The right shoulder and knee symptoms occurred when those joints were placed under stress or strain. In this respect it would seem to me that the shoulder and neck symptoms were the most important for consideration in relation to any claim for impairment of earning capacity. That is because carpenters, as the evidence here demonstrated, are called upon to work from time to time with their arms above their head and to be able to move their limbs and their head quickly on occasions. The appellant said that he could carry out work with his hands above his head for a short time but that he could not sustain the work of installation of windows when he was required to keep his hands above his head for a lengthy period. That evidence ties in, it seems to me, with the medical evidence and the finding of his Honour of the possibility of moderate severity in the right shoulder and neck. In these circumstances there would appear to have arisen a prima facie case for an award of compensation of the nature of that claimed by the appellant in this Court. Notwithstanding that prima facie case, his Honour proceeded to conclude that there had been, in his view, no real impairment of his future earning capacity. He was, his Honour said, the type one could expect to soldier on. His Honour did, however, feel an allowance should be made for future pain and suffering of mild severity in the work place. Counsel for the respondents submitted that his Honour was quite entitled to make that finding and that no error had been demonstrated. He submitted that the finding reflected evidence which had been given and which his Honour was perfectly entitled to accept. In particular, he directed attention to the evidence of Sir Keith Jones and Dr Bornstein who had given evidence in the case. In directing the court's attention to the evidence of Sir Keith Jones he pointed out that in two reports that doctor had said that in his opinion the appellant was fit for work in his pre-injury occupation as a self employed carpenter and on the open labour market. URFXDWARD MIZZI v MURGATROYD NOLA JOAN MIZZI v MURGATROYD (Clarke JA) 3 This evidence was reflected (and almost repeated) in his Honour's statement in the judgment that he was satisfied that the appellant was fit to continue in his pre-accident employment and was fit to perform work on the open labour market. There would thus appear to be real substance in the submission of the respondents. However, there is a difficulty with it. If one examines Dr Jones' reports one finds that the opinion is premised on a conclusion that the appellant was at the time that Dr Jones saw him suffering only from a knee disability. For instance, in the first of the two reports in which Dr Jones expressed the opinion that there had been no impairment of earning capacity, and which was made on 6 May 1983, the doctor said he could find no evidence of disability in the cervical spine, nor in the right shoulder. In the latter report he qualified that to some extent, although he said there were no physical signs to support any disability in those areas and although he thought there was a continuing problem in the right knee. On any reading of Dr Jones' reports it becomes plain that he was voicing an opinion based upon his conclusion that there was no actual disability in the cervical spine or in the right shoulder. His Honour did not accept those opinions. Indeed it is apparent he rejected them in making his findings that the appellant at the time of the trial suffered and was continuing to suffer pain in the neck and in the right shoulder. Accordingly, as the premise for Dr Jones' opinion should be treated as having disappeared in the light of his Honour's findings, it becomes necessary to determine whether it was open to his Honour to conclude that notwithstanding the disability in the right shoulder and neck there was no impairment for work on the open labour market. In that regard reliance was placed on the reports of Dr Bornstein. He said on 16 October 1984 that the appellant was fit for most of his duties as a carpenter but should take care with some of them. He added there had been no real assessable loss of efficient use of the right leg or of his shoulder. In his latest report of 9 May 1986 he said this - and this seems to me fairly accurately to reflect the position: "The patient does however have ongoing complaints at this time and, despite this, is capable of doing some of the duties of a carpenter, albeit in a slightly lighter side of his trade." That finding or conclusion would appear to me properly to reflect the symptoms which his Honour found to be of a continuing nature and to provide an indication of a fairly clear nature that there was not complete capacity to compete on the open labour market in all types of work of a carpenter. In my opinion, the submission that his Honour was entitled to conclude in the light of his findings as to the continuing symptoms that there had been no impairment of his work capacity and that in effect he was at no risk in future because of his disabilities was an erroneous finding is correct. It seems to me that once his Honour had made the findings he did in relation to the disability it became incumbent upon him, unless there were any other particular circumstances which reflected against this, to embark upon a consideration of whether an award should be made of a cushioning nature. There do not appear to be any other circumstances in this case which indicate that no award should be made of a cushioning nature, although it is important to bear in mind in considering the claim the fact that the appellant has worked successfully in every sense since his accident and is running a thriving business. Nonetheless if there is a downturn in the building industry - and this is not unknown - or if the appellant's business fails for other reasons, there will be a 4 UNREPORTED JUDGMENTS need, or there may be a need, for the appellant to seek work as a general carpenter. If he is forced into this situation he would be disadvantaged to an appreciable degree and would have trouble, on the evidence, in performing the works of a carpenter on a full-time basis. Accordingly, it seems to me that it is proper to allow an award of the nature sought by the appellant's counsel and although one cannot approach such an award with any suggestion of certainty, I believe that a figure of $25,000 would reflect the possibilities that face the appellant in the future. The appellant's counsel also submitted in written submissions that there should be an increase in the award for general damages. During the hearing, however, that stance was somewhat altered for counsel submitted that if there was an award made in respect of economic loss it possibly was not appropriate to increase the general damages awarded. I need say no more than that I agree with this submission. The final claim was for an amount of approximately $4500 to reflect his Honour's finding that the appellant might need some conservative medical attention in the future. I say only this about that claim. It seems to me, despite its moderate amount, to have been put at a fairly high level and to suggest much more constant medical attention than I think the evidence justifies in this case. In that circumstance, I am of the opinion that the award of general damages should be taken adequately to cover that element of the appellant's loss as well. Accordingly, I would increase the appellant Mr Mizzi's award of damages by $25000, which should I think mean that there should be a direction for entry of judgment in favour of Mr Mizzi for $70242.80 to date from 2 October 1987. I turn then to Mrs Mizzi's claim. Her case was somewhat more serious. She was at the time of the accident aged just under twenty-four years and was eight months pregnant. She had at some time prior to the accident worked as a bank officer and was third in charge of a small branch. she had one child and, as I have already said, was expecting her second. She had hoped to have three children. She apparently was a person in good health who, apart from hoping to have the children of which I have spoken, intended to go back to part-time bookkeeping work when her children went to pre-school or to primary school. Of course the time when she would return to the workforce had not been determined. In the accident she suffered injuries to her head, neck, chest, abdomen, low back and thighs. The significant continuing disabilities would appear to have resulted from her head injury. Her back pain lasted for about eighteen months but had subsided prior to trial. She, at the time of trial, still had intermittent symptoms of neck pain which come and go and she had medication to treat those symptoms. She also had episodes of headaches with a frequency of five days a week. She had intermittent attacks of dizziness and vertigo and when this occurred she noticed vision problems in that objects seemed to be moving slowly. On 7 March 1984 Dr Deves, an ear, nose and throat specialist, operated on her left ear for the condition of perilymph fistula. Following her operation her intermittent attacks of vertigo returned and she also suffered from tinnitus in the left ear. In stating her symptoms in that manner I have been drawing on a passage in his Honour's judgment. Furthermore, his Honour appears to have accepted that the symptoms of headaches, pain in the neck, vertigo, dizziness and tinnitus had caused her depression and had affected her ability to look after the children and her husband and to perform her household duties. He noted that he found her concentration had been impaired and her ability to perform bookkeeping work, which she had URFRDWARD MIZZI v MURGATROYD NOLA JOAN MIZZI v MURGATROYD (Clarke JA) 5 previously done on behalf of the business, had also been impaired. There had been a degree of marital disharmony and sexual relations between herself and her husband were somewhat strained during the period following the accident. The evidence to that effect was that there had been no significant improvement, even to the time of the trial. I should add, lest it be thought I have overlooked it, that there was a very significant reason for Mrs Mizzi's anxiety: a very significant reason for her to be having trouble and to be seriously disturbed by this accident. That was her fear that the child she was carrying might have been injured or seriously disabled in the accident itself. Those fears were allayed to a certain extent after about four months, when the doctors said the child, which had been delivered early almost immediately after the accident and because of it, appeared to have no disabilities or after-effects at all. Notwithstanding this assurance, Mrs Mizzi, for reasons which I can readily accept, remained very concerned that there might be some problem. I return then to the conclusions of his Honour in relation to her ongoing disabilities. He accepted that she continued to suffer from headaches, head pressure, tinnitus, dizziness, vertigo, impaired concentration and mental or emotional stress. He accepted that those disabilities were of a serious character and significantly impaired her enjoyment and amenity of life. He did find that with the passage of time there would be some improvement in the frequency of her headaches as her emotional and mental stress diminished. This finding was challenged by counsel for Mrs Mizzi but, in my view, there was ample evidence to justify that conclusion. However, it is important to stress that the improvement was limited to the frequency of her headaches, for his Honour expressly accepted permanent disability in relation to vertigo, impairment of hearing and concentration and ringing in her ears from time to time. His Honour also accepted that because of a conscious decision she had made after, and because of, the accident she would have no further children and that her life had been interfered with significantly in that respect. The first challenge to his Honour's assessment related to his allowance of the figure of $15000 for the impairment of her future earning capacity. That allowance followed this finding: "T find that Mrs Mizzi will not be totally incapacitated from doing part-time work of a kind envisaged by her but there will be difficulties in relation to this work. I find that there may be times when she may not be able to do the work continuously and there will be other times when she will. Again I find that there will be times when, although she is able to do the work she will not gain the full enjoyment from the work because of her recurrent symptoms." Involved in those findings was the conclusion that she was not totally incapacitated from part-time work but that there would be an interference with her work which could neither be dismissed nor treated as trivial. The finding did not, however, go any further than that. In these circumstances it is necessary in considering whether his Honour made any error in his allowance of $15000 to have some further regard to the evidence of the nature of her disabilities and the type of work for which she was trained. What she was saying - and, as I apprehend it, was accepted in saying - was that if she tried to attend to bookkeeping and to look at books for any length of time she suffered from problems. Her eyes blurred, from time to time dizziness came back, she got headaches and felt the other problems to which I have already adverted. 6 UNREPORTED JUDGMENTS In the context of the work she proposed to do, it seems to me that that was a relatively serious problem. Indeed, it must be said that his Honour accepted that her disabilities created or caused serious disruption of her enjoyment and amenity of life and it is hard to see how, consistently with that finding, it should not be said that the disabilities reflected also in a significant way on her earning capacity in the future. Counsel demonstrated that the award of $15000 represented something in the order of $16 per week for the rest of the appellant's probable working life. This he said, was manifestly inadequate. I think that submission is right. I think it fails to pay any real regard to the likelihood that the appellant, like other young women, would return to the workforce and would find that her efforts in that regard would be significantly impaired. Her counsel put forward alternative figures which reflected earnings paid to a part-time bookkeeper at the time of the trial of $10 per hour and suggested that if, as she had hoped, she had been going to work twenty hours a week her loss, if her impairment was total, would have amounted to a significant sum greatly in excess of $100000. To take account of the fact that her loss was not total and that there was need to pay regard to vicissitudes, counsel sought an award of between $90000 and $100000. That was said to reflect an allowance of about $170 net per week for the thirty-one remaining years of her probable working life. Counsel for the respondents suggested that this submission bordered on the ridiculous. There was no evidence which justified any finding of a certain loss, nor was there evidence which justified a finding of a particular amount of damages for this loss. However, a case in which there was evidence which justified a specific award of damages of a precise amount would be a very rare one. It seems to me that every case involves a large measure of speculation, if one is permitted to use that work. In any event, there is involved a large measure of judgment, assessment and estimation which involves consideration of a vast number of imponderables. This case was no exception. One is unable to say when she would have gone back to the workforce. One is unable to say whether she would have had three or four children. One is unable to say whether she might not have gone back to work full-time. But, despite those imponderables, the court is also required to assess an amount of compensation which reflects its own view of the impairment of earning capacity which is demonstrated on the evidence and the likely loss which will or may flow from that impairment. In the circumstances of this case there are, as I have sought to point out, many imponderables and in the light of those imponderables I think an amount significantly in excess of $1,000 should be allowed. But I do believe that the appellant's counsel has pitched her case slightly too high. In my opinion, an appropriate award to take account both of her impairment and her likely work history if she had not been injured, having regard to all the imponderables, is $60000. This involves an increase of her award by $45000. That is not the only challenge to the verdict. Her counsel also submits that an award of $45000 general damages was grossly inadequate in the circumstances. He says that it fails to reflect a proper awareness of the heads of disability of which I have spoken: her anxiety and shock; the significant trauma which she must have suffered, both physically and mentally, at the time of the accident; her immediate horror at the prospect of injury to her unborn child and the continuing stress and concern she had in that regard. UARWARD MIZZI v MURGATROYD NOLA JOAN MIZZI v MURGATROVD (Priestley JAY Counsel noted that his Honour had divided the assessment as to $30000 for the past and $15000 for the future and submitted that while the past assessment possibly reflected adequately the loss, the future did not. lI accept that it is not permissible to adopt a strict dissection but it is useful, I think, to look at the award in its overall amount and then at the award as it is divided. I agree that $30000 reflects fairly accurately the loss which seems to me to have been suffered by the appellant. If one has regard to the future and the length of time during which this appellant is going to have to continue to suffer from the significant and serious impairment of her enjoyment of life which his Honour found, I cannot accept that $15000 is an adequate reflection of that. Testing then the award of $45000 against the past and future award, it seems to me that probably a figure of similar amount should have been allowed for both periods. Having expressed my opinion that $30000 properly reflects the loss for the past, I think a similar amount should be awarded for the future and I would increase the award of general damages by another $15000, so that the total would amount to $60000. The appellant also challenged the award for future medical expenses in the sum of $8000. Figures were put before the court to show that the loss really was in the order of $24000. Again I think that the case has been pitched at a very high level indeed and, bearing in mind the fact that to an extent it is appropriate to accommodate these types of expenses in general damages for the reason that they are of even greater uncertainty than other areas of assessment, I do not think that a case has been made out for any increase in the award in respect of future medical expenses. I would therefore increase the damages awarded to Mrs Mizzi by the sum of $60000, which results in a judgment which should be entered in the sum of $148205, to date from 2 October 1987. The respondents should pay, in my opinion, both appellants' costs of the appeals. Hope JA I agree. Priestley JA In his reasons, with which I agree, Clarke JA has dealt with counsel's attempt to support a passage in the trial Judge's reasons which appears to have been based in part on reports of Sir Keith Jones. Of this passage counsel rather bravely said: "laconism without obscurity is not appellable per se". What his Honour wrote, however, seems to me rather to recall an earlier writer's lament: "brevis esse laboro, obscurus fio". I agree with the orders proposed. HOPE JA: The appeals are allowed. The orders are as proposed by Clarke JA. Counsel for Appellant: B J Toomey QC and L A Levy Solicitors for Appellant: Blessington Judd Counsel for Respondent: A J Renshaw Solicitors for Respondent: Solicitor for GIO