HOBELL v LEONARD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS J, PRIESTLEY and CLARKE JJA 29 May 1990 [1990] NSWCA 95 DAMAGES — quantum — no question of principle. Samuels J This appeal from an assessment of damages made in the District Court by Judge Lloyd-Jones is one which, to my mind, is very much on the borderline. We are much indebted to Mr Barry, who has appeared for the appellant, and I am not, in saying that, reciting the litany which is sometimes used in order to alleviate the pangs of defeat. He has produced not only helpful oral argument but some extremely helpful written submissions, which have, however, had the effect in the end of laying out the case in a very clear fashion and leading me to conclude that the assessment is not a wholly erroneous estimate of the plaintiff's damage. The accident occurred in 1982 and the hearing in March 1989. The learned Judge appears to have accepted the respondent's evidence at its highest, including not only her own complaints but the evidence of her doctors, which was supplied wholly in written form. Indeed, the plaintiff/ respondent was the only witness who gave oral evidence. From this I think it was open to the learned Judge to find, as he did, on the basis of Dr DG Seaton's reports and those of Dr David Champion, that the plaintiff had a defect traumatically induced in the left shoulder, described by Dr Seaton as levator scapulae syndrome, which produced symptoms of stiffness and pain in the neck radiating to the left shoulder, with weakness in the left arm and hand, and had, in addition, a retropatellar chondritis of both knees, which caused weakness, instability and clicking. His Honour felt that these conditions were unlikely to improve and I cannot say that that finding was not available on the evidence. The difficulty in the case, it seems to me, is primarily in working out what the respondent's earning capacity was at the time of the trial and what her likely future employment pattern was. She had worked in various capacities. She was thirty five years old at the trial, a single mother with one child then aged about seven years. She had been a cook and had managed part-time an Indian gourmet restaurant, had taught French, in which she was fluent, and had done some work as a Court Interpreter, although this seems to have been modest in scope, and had done some contract research for the Metropolitan Museum of Art in New York. Her intentions were, she said, if the accident had not happened, to start a jewellery or clothing import and export business or, with some friends, to establish a child daycare centre. Neither of those occupations was any longer available to her on the view the Judge took of the evidence, and again I think that that conclusion was well open. Because the respondent had engaged in a number of different occupations, it was not easy to establish her earning capacity, which his Honour finally selected as $200 net per week, or "At least $200 net per week". 2 UNREPORTED JUDGMENTS Mr Barry's material tends to produce a higher figure than that, which might be as high as $260 per week gross, but I suppose, taking into account the ravages of income taxation, although there are no precise figures on the evidence, that does not markedly differ from the sum which the learned Judge selected. Accordingly, I do not think that any attack can be made on the Judge's figure and indeed, as I understood it, Mr Barry substantially conceded this to be so. His main argument was that it was not reasonable for his Honour to have characterised the respondent's disabilities as "problems of a severe kind", which would have any significant effect upon all the variety of occupations which her talent and experience made available to her. There is, I think, some substance in this argument but all in all I do not think that it can be accepted. The respondent had been living in Canada and, it seems, would return there, and has indeed returned there after the trial. The climate presented her with some problems, her disabilities being worse in the cold than they are in the summer. She gave some rather dramatic evidence about the necessity of digging out her car every day in the winter, which the Judge seems to have accepted but which I would regard with some degree of scepticism. Mr Barry also points to the lack of logic in an assessment which depends upon the assumption that the respondent would not work much or at all during the winter, but would work almost constantly in the summer, since if there is an existing disability which is exacerbated in the winter it will not wholly disappear during the warmer weather. Nonetheless, it seems to me that the figure at which his Honour ultimately arrived as the financial deficit imposed by the consequences of the accident - namely, $100 a week - can be justified on the evidence, even though that element to which I have just referred and the Judge's reasoning towards it is not wholly commendable. Furthermore, as far as the damages for reduced earning capacity are concerned, his Honour applied a significant discount. Apart from the fifteen per cent, which, although I have struggled against it, must now be regarded as in the nature of a conventional factor, he reduced the figure of $78,000 (to which the initial amount of $92,000 had been diminished) to $60,000, which is I think the calculation which, in my view, saves that aspect of the assessment. The award for damages for pain and suffering and the like was $55,000. Nothing was awarded for loss of earnings accrued to trial or out of poc'ket expenses. If one accepts, as his Honour did, the respondent's complaints - and this is an area in which it is very difficult for this Court to intervene that figure, though in my view on the high side, cannot be said to fall outside the limits of discretion. I have considered with care what Mr Barry has put and I have come to the conclusion, for the reasons which I have given, that the assessment is not so high as to incur the intervention of the Court. I would therefore dismiss the appeal with costs. Priestley JA I agree. Clarke JA I also agree. The order of the Court therefore is that the appeal is dismissed with costs.