MARSH v MOSS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and HANDLEY JJA 2 August 1990 [1990] NSWCA 119 Clarke JA This is an appeal from a judgment of his Honour Judge Pain deliveredon 21 October 1988 wherein his Honour awarded a verdict in favour of the appellant in the sum of $128,659.18. The appellant claims that the award is inadequate in a number of respects. On the other hand the respondent has filed a Notice of Contention which concedes certain errors on the part of his Honour in his favour but argues that there are other errors which were in favour of the appellant. Accordingly, the respondent seeks to uphold the judgment upon the basis that a proper award would not have exceeded the amount which his Honour did in fact award. There is no relevant argument about past out of pocket expenses or past wage loss. It is accepted that his Honour incorrectly used the five per cent tables in assessing the impairment of earning capacity for the future commencing at a period ten years after the date of trial. In this respect his Honour made two awards in respect of future loss of earning capacity. In the first award he allowed a lump sum of $20,000 to cushion the appellant from the risks flowing from his physical incapacities for the next ten years. In the second stage his Honour allowed an amount of $105 per week for twenty-one years less 15 per cent discount. The parties have handed up a table which demonstrates that they both agree that the second stage allowance should be $54,211 and not the sum of $46,500 allowed by his Honour. Accordingly, subject to the submissions of the respondent which arise under the Notice of Contention, it will be necessary to correct the judgment. The respondent initially submitted that no allowance should be made for the impairment of earning capacity for the next ten years. During argument counsel for the respondent retreated from this position and submitted that the award of $20,000 was excessive. That sum represents approximately $50 per week calculated in accordance with the three per cent tables and making no allowance for a discount. The appellant worked prior to his accident as a maintenance fitter at a sugar mill. He has continued in that employment since the accident and had been in the same employment for about six years at the date of trial. Notwithstanding, there was powerful evidence to the effect that the appellant worked under significant difficulties. He could not lift a hammer of more than four pounds weight and he had difficulty using a screwdriver. These problems flowed from a disability in his right elbow which has resulted from a fracture in that elbow suffered in the accident. The medical evidence is to the effect that there is a possibility that this condition might get significantly worse and lead to the development of symptomatic arthritis. 2 UNREPORTED JUDGMENTS He has additional problems working as a fitter and turner which arise from the injury in his right knee. While this may not initially have appeared serious it has turned out to be quite significant. According to the medical evidence, and his Honour's findings, there is a real risk that he will develop increasing and significant arthritis in that joint at some stage in the future and may even need major surgery as a consequence of that arthritis. The position, therefore, is that the appellant is a labouring man working as the sole maintenance fitter in a sugar mill and required to be on his feet for lengthy periods and to carry out relatively arduous tasks. He has available to him from time to time forms of assistance but that is not always on hand. If he was unable to continue in his present employment then he would be at serious risk on the labour market; similarly if he was dismissed or declared redundant. Again if his injuries deteriorate at a greater rate than the doctors expect it is probable that he will need to revise his employment future. These factors were, I apprehend, what his Honour had in mind when he made a relatively modest allowance for the next ten years and suffered no loss of money, he would have been over-compensated. On the other hand if, as on the evidence is a real possibility, he finds he is unable to remain in his employment for that full period, the sum of $20,000 may be quite conservative compensation. In my opinion, bearing in mind these uncertainties and the evidence of the deteriorating condition of the appellant's elbow and knee, his Honour would have erred if he had not allowed a sum of the order of that allowed. I do not think any error has been shown and I am of opinion that the sum of $20,000 which was awarded by his Honour should remain as part of an award which this Court will need to substitute as a result of the correction I have already mentioned. The appellant also challenges the award of general damages but I will put that to one side for the moment to address shortly a complaint by the respondent that his Honour made an excessive award for the possibility of future surgical treatment. There is no doubt that his Honour came to the conclusion that surgical treatment was a possibility, although a relatively likely one, in the future but because there was only a possibility of surgery his Honour said he was discounting the amount which he allowed. I think, however, that he might have misapprehended the evidence. That was to the effect that there was a real chance that the appellant would need to undergo one surgical intervention in the future and that the cost of that intervention would be $2,000 to $3,000 with some rehabilitative and physiotherapy costs added on. There was also mention of another operation but, as I read the evidence, that was in the context of the need for the operating surgeon to choose between two types of treatment when the occasion for operation arose. It may be, but on the evidence it would only be a remote possibility, that the appellant might need to undergo two operations in the future but I do not think on a reading of the evidence that that was in any way other than, as I have indicated, remote. Accordingly the sum of $4,000 which I think was awarded as a result of his Honour's misapprehension that the appellant would be likely to undergo two operations fails to take account of the fact that his Honour was dealing with a possibility. In my opinion there is a need to discount that sum by approximately fifty per cent to take account of that factor and I would reduce the appellant's award by $2,000 in respect of the possibility of future surgical treatment. URJ MARSH v MOSS (Handley JA) 3 I turn then to the outstanding matter which is the question of general damages. The appellant was born on 2 November 1954 and was thus 29 at the date of his injury. Although he only had a relatively short time in hospital, he has been left with significant injuries and disabilities in his right knee and his right elbow. They affect him virtually every day of his life and the picture is one of a progressive deterioration leading to possible surgical intervention. In my opinion an award of $30,000 may have been within the range of proper awards in respect of an injury to the knee alone in a working man of his age but I think it is quite inadequate properly to compensate a relatively young man for injuries both to his knee and his elbow which are likely to lead to further troubles in the future. In this respect I do not think one should make the mistake of under-estimating the regular pain associated with increasing arthritis in a weight bearing joint such as the knee. The appellant's counsel has submitted that an appropriate, though not over generous, award would be $50,000. Bearing in mind the range of awards made in these type of cases seen by this Court I think that that is an appropriate evaluation of the compensation which should be made in this case. No doubt it is always a difficult matter to determine what sum should be awarded to compensate a person for pain and suffering. Sometimes the difficulties are compounded by the stoic nature of the person before the court. In other cases the difficulties are compounded by tendencies of plaintiffs to exaggerate. In this case the picture is one of a decent young man of a pretty stoic nature who likes his job and has, in a sense, battled on and intends to battle on at it. Accordingly, I would increase the award for general damages to $50,000 and make an appropriate adjustment to the interest, awarding the appellant $8,812 interest in lieu of the amount that his Honour awarded. I should interpose the observation that his Honour made a greater award of interest but he did so because of a misapprehension which led him to award interest for a total period of 15 per cent instead of for 50 per cent of the relevant period at that rate. ORDER In the result the following orders should in my opinion be made. The appeal allowed, the judgment of Judge Pain set aside. In lieu thereof I would substitute judgment in favour of the appellant in the sum of $152,682.18. The respondent to pay the costs of the hearing at first instance and the costs of the appeal. Meagher JA I agree with the judgment just delivered by Mr Justice Clarke, although with some reluctance on the question of general damages. Handley JA I also agree. (The respondent's counsel made application for a certificate under the Suitors Fund.) CLARKE JA: The orders will be as I have already indicated and the respondent is to have a certificate under the Suitors Fund for costs of the appeal. Counsel for the Appellant: B Gross QC and C Rimmer Solicitors for the Appellant: Thompson Wheelahan and Hampshire Counsel for the Respondent: GR Petty Solicitors for the Respondent: Alwin Gilles, Solicitor for the GIO