GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v HODGSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, MAHONEY and MEAGHER JJA 23 April 1990, 23 April 1990 [1990] NSWCA 72 DAMAGES — quantum — no question of principle. Samuels JA This appeal by the defendant arises out of a motor vehicle accident which took place on 21 January 1986 and in which the plaintiff, the present respondent, sustained what appears to have been a whiplash type of injury to the cervical spine. There was no question of liability and his Honour Judge Moore awarded the respondent the total sum of $134,000, including the sum of $66,000 for diminished earning capacity. It is conceded that the learned judge fell into error by failing to deduct from his assessment of the loss accrued to trial amounts earned by the plaintiff between the accident and judgment. Accordingly, there being an error of that kind in the assessment, it is our obligation to reassess the damages and we do so in the conviction that we have the necessary material before us, and, indeed, with the assent of the parties. The injury, as I have said, was one to the cervical spine. The matter is a little complicated by the fact that the Plaintiff had sustained an earlier spinal injury, and ironically enough had, the day before the accident, consulted a chiropractor from whom he had received treatment on previous occasions. There is no evidence to my mind that the earlier injury had limited the plaintiff's capacity to work, but certainly it produced altered sensation in the index and middle fingers of his right hand. The accident with which we are concerned also brought about some interference with nerves supplying the right arm and hand and produced paraesthesia and limitation of function primarily in the little finger of that hand. The plaintiff continued doing reasonably heavy work for three weeks after the accident but then found he was unable to continue. There are various arithmetical endeavours before us to establish the time which elapsed between the accident and judgment, which seems to me to amount to ninety four weeks. During that time the plaintiff worked for some period; for three weeks after the accident, earning his pre-accident wage of $300 per week after tax; that produces $900; for a period of six weeks, doing very light work at a wage which is not precisely identified. It seems that the total earned over this period might have varied by as much as from $600 to $2400. Mr King for the appellant naturally opts for the higher end of this range. For my own part, I would make the rough calculation of taking $1500 as the amount for which the plaintiff should be debited. Then there is a further three weeks work, during which time he appears to have earned $1200, and account must be taken of the fact that during the period he underwent surgery for decompression of a carpal tunnel syndrome which was not connected with this accident. However, loss of earnings during 2 UNREPORTED JUDGMENTS that period must be considered and I would think that the figure of $1200 for four weeks surgery and recuperation would be appropriate, there being no precise evidence upon the point. Accordingly, the amounts which the plaintiff appears to have earned during the period in question total $4800. The more difficult question is to work out the rate at which the loss of earnings during this period should be calculated. The learned judge found at judgment that the plaintiff's diminished earning capacity for the future amounted to a deficit of $100 per week. He arrived at this figure by taking into account, I would think incorrectly, the possibility that in the future the plaintiff might have become incapacitated for work by reason of his susceptibility to aggravation of his prior spinal injury. While that is a proper matter for discount, I do not think it can be reflected by a straight deduction from what would otherwise be the diminished earning capacity looked at as a weekly rate. However, it seems to me, taking account of his Honour's final findings and bearing in mind his Honour's advantage in having seen and I might add formed a good impression of the plaintiff, I would think that a continuing loss of $100 a week during the period to trial would be appropriate. That then produces $9,400, from which a deduction of $4800 must be made, producing a net figure of $4600. As for the future, the learned judge, as I have said, assessed the continuing loss at $100 per week and took a further working span of twenty years. The multiplier is 666.4. The medical evidence was perhaps a little sparse but Dr Lyttle, who had performed the carpal tunnel decompression, expressed the view that the plaintiff's neck injury ought to be treated conservatively and that that approach would "in some cases settle down and improve steadily", that is to say that that approach would bring about that consequence to the condition under treatment. He added: "However, long term follow up......often shows that significant symptoms continue and surgical or other treatment for disc damage in the neck commonly becomes necessary in later time." He was not prepared to predict what the future might hold in this respect, but Mr Lewis, who is the chiropractor, was a little more positive, although not much more, expressing the view that the probability was that the plaintiff would possibly have need for surgery, thus expressing a rather difficult logical conundrum. The learned judge thought that the chances were about 50/50, and I myself can see no ground for dissent from that view. However, what his Honour seems to have lost sight of was that the surgery would have been an option for improvement, as it were. I mean by that that it would have been recommended had the plaintiff's pain and discomfort reached the stage when he could no longer bear it. It is to be assumed that the surgery would have brought about some amelioration in his condition, bearing in mind of course that there are cases where surgery is unsuccessful for various reasons. Hence, a realistic view of the future seems to me to be one in which the plaintiff will probably improve as a result of conservative measures or, those failing, in consequence of surgery. At least there appears to me to be no evidence which tips the scale in favour of deterioration. The question is what figure to take as the continuing weekly index of diminished earning capacity, there being no guidelines. I think that the plaintiff is unable to continue to indulge in heavy work and is likely to remain under that disability. I would judge that $100 per week, that is about a third of the plaintiff's \ROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v HODGSON (Meaghe JA) pre-accident rate, would be appropriate and take account of the various uncertainties as to his future progress. That produces a gross sum of $66,640. That must be discounted for the general vicissitudes, a calculation which, as far as I can see, his Honour did not make, and also in the circumstances of this case for the plaintiff's particular susceptibility arising out of his pre-existing spinal lesion. I would think that an additional ten percent would be a reasonable allowance for the latter contingency, so that I would reduce the gross figure by twenty five percent or $16,650, producing a net figure of $49,980. Adding the out of pocket expenses of $1,258 one arrives at an interim total of $55,838. There remains the allowance for pain and suffering, loss of amenities and so forth. His Honour awarded $40,000 under this head. There is no doubt that the evidence establishes a considerable interference with the plaintiff's amenities and enjoyment of life, but once again the probability (I mean, a chance exceeding 50%) is that this will improve rather than deteriorate. His Honour seems to have taken no account of possible improvement. I would therefore think that $30,000 would be an appropriate figure under this head. Adding that to the interim total produces a final figure of $85,838. I will avoid the temptation to round it off. Accordingly, the orders of the Court are that the appeal is allowed, and the judgment below set aside. In lieu thereof judgment for the plaintiff for $85,838 plus costs to take effect from 12 November 1987. The respondent is to pay the appellant's costs of the appeal. Mahoney JA I agree. Meagher JA I agree. Appeal is allowed and the judgment below set aside; in lieu thereof judgment for the plaintiff for $85,838 plus costs, to take effect from 12 November, 1987. The Respondent is to pay the Appellant's costs of the appeal.