WILLIAMS v MITCHELL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, PRIESTLEY and MEAGHER JJA 20 February 1991, 23 May 1991 [1991] NSWCA 286 CONTRIBUTORY NEGLIGENCE — children — expected to display regard for own safety to be expected of ordinary child of same age: McHale v Watson (1966) 115 CLR 119 applied. DAMAGES — allowance for possible loss of earning capacity commencing in twenty years' time — need to discount for deferment. Samuels JA This is an appeal from Shadbolt DCJ from whose judgment I take the facts. The plaintiff was born on 13 November 1971. On 5 April 1983, when he was eleven years old, he went with his mother and his two younger sisters and a young male friend to visit his maternal grandfather's house. The house was a fibro structure with a garage separated from it by perhaps twelve feet; the front alignment of the garage was approximately one metre (so the measurements were given) back from the alignment of the rear of the house. The garage was reached from the house by a concrete path which ran from the back door parallel to the back of the house and straight to the front of the garage, connecting with the nearest of two straight parallel paths of concrete which gave access to the garage from the road. The defendant, the grandfather, arrived home and saw two cars in the driveway, that is parked on these concrete paths. One he recognised as his wife's and the other as his daughter's. He agreed that he assumed that his grandchildren were there because he saw his daughter's car and was aware that it was the children's practice to play in the large garden at the back of the house. He drive along the side of the house, that is between the concrete paths leading to the garage and the side of the house nearest to them, because he did not wish to block the exit of his daughter's car. He drove very slowly at about two to three miles per hour; he did not sound his horn or go inside the house and announce his arrival. He knew, of course, that the corner of the house was blind, that is to say, until the driver's seat had passed beyond the rear alignment of the house he was unable to see to his right towards the back door; similarly, anyone proceeding from the back door past the corner towards the garage would have been unable to see him until he or she had passed the corner. Unfortunately, the plaintiff was asked by his mother to fetch something from her car which was the vehicle parked furthest from the road. He "jogged" (as he put it) from the back door along the path to the corner of the house where he met the defendant's car proceeding slowly into the garden. The plaintiff propped but slipped and the offside front wheel of the car rolled onto the plaintiff's left foot, inflicting injuries which, fortunately, were not of great severity. Shadbolt DCJ, who heard the case on 12 and 13 April 1989 when the plaintiff was a little over seventeen years of age, found the defendant negligent and assessed damages as follows: 2 UNREPORTED JUDGMENTS Pain and suffering, less of amenities $25,000.00 Future economic loss 30,000.00 Future medicals 5,000.00 Interest (at 7.5% for 6 years on $20,000, a portion 9,000.00 of the award for pain and suffering) $69,000.00 The defendant has appealed, challenging the finding of negligence against him, the learned judge's refusal to make a finding of contributory negligence against the plaintiff and the assessment of damages. As I have indicated, the defendant appreciated that the children were visiting his house when he arrived. That is to say, he knew that a boy of eleven and two younger girls might be playing in the garden at the rear of the house in an area which he could not see from his car until he had driven past the rear alignment of the house. He must be assumed to have been aware that the games of children of that age commonly involve a good deal of running about and excitement which make their movements unpredictable, and tend to make them comparatively careless of dangers which the older and more sober might more readily foresee. I consider that the defendant ought to have foreseen the possibility that one of the children might run out from behind the house into the path of his vehicle as he drove towards the rear of the block. It was negligent of him, I feel bound to say, to drive his car in the area, even at a very low speed, without at all times being able to keep a lookout for the children whom he knew were about. Accordingly, I think that the learned judge's finding of negligence was perfectly correct. As to the contributory negligence, the test is that the plaintiff was expected to behave according to the standard of conduct to be expected of "children of like age, intelligence and experience": McHale v Watson (1966) 115 CLR 119: Bullock v Miller 5 MVR 55 at 58 and 59 and Mye v Peters (1967) 2 NSWR 578. In other words, an infant plaintiff is expected to have that regard for his or her own safety to be expected of an ordinary child of the same age. I do not think it at all out of the ordinary that the plaintiff should run from the back door along the back of the house; and I do not for a moment consider that his inability to see round the corner was something which should have led him to stop and reconnoitre before he moved into the blind area. To require prudence of that kind is to expect to find a very old head indeed on eleven year old shoulders. I agree, therefore, with the learned judge that the defendant failed to discharge the onus which lay upon him of proving the plaintiff's own fault. Turning to the damages, the plaintiff sustained a fracture through the distal tibial epiphysis and the distal shaft of the tibia - in other words, of the lower end of the tibia and fibula. He was in considerable pain immediately after the accident and for several days thereafter. The fractures were reduced under general anaesthetic and held in a long leg plaster which remained on for six weeks. Since that time, the learned judge found, the plaintiffs leg had been painful, and since he was thirteen, that is since the expiration of about two years after the accident, it had given way from time to time; "more recently sometimes five or six times a day". Long periods of standing or running caused his ankle to swell; he did not URJ WILLIAMS v MITCHELL (Samuels JA) 3 Flay football but he did "do" (if that is the verb) judo and played cricket. He was in Year 12 at high school and wished to become a fisheries inspector or a shipwright. The learned judge accepted the evidence of the treating orthopaedic surgeon, Dr Ian Cavison. Dr Davison concluded, on the basis of radiological findings which evidently surprised him somewhat, that there was evidence of incipient degenerative changes in the ankle. He thought that further changes were likely to occur but would be very slowly progressive. As is common in these cases, he found it very difficult to respond to the lawyers' insistence upon some specific prognosis. He thought that the likelihood of the plaintiff's developing degenerative changes stood at. over sixty per cent, but that they might not be symptomatic for between ten and twenty years. This estimate was plainly a very approximate one, as he was the first to insist, and he adjusted it to perhaps twenty to thirty years from the accident and also expressed the view that it might not happen until the plaintiff was in his forties. However, although he expressed that view about the future, he made this observation: "Most people with arthritis of the ankle live with their arthritis of the ankle with conservative treatment; physiotherapy, anti-inflammatory medication." He added that if it was severe, which could not of course be predicted, there was the possibility of an ankle fusion, which was an unsatisfactory procedure. The important aspect, however, of this view of the plaintiff's future is that Dr Davison did not express any view as to whether or not arthritis of the ankle, even if symptomatic, would and, if so, to what extent, inhibit the plaintiff in any employment, and particularly in the occupations that he had in mind of fisheries inspector or shipwright. The lateral instability of the ankle, which again surprised Dr Davison but which he was prepared to accept, was rather different. This, he thought, could be cured by surgical intervention and, of course, it was this instability which plainly would have affected the plaintiffs ability to work, say on scaffolding or uneven ground or on precarious perches and the like. The learned judge, taking account of the fact that the plaintiff might have to undergo another operation, assessed his damages in the sum of $25,000 for pain and suffering, loss of amenities and diminished enjoyment of life. He did not specifically mention the possibility of arthritic changes, which would certainly, if symptomatic, cause some pain and discomfort. However, the damages under this head would be intended to cover that disability as well and, on that footing, I would not interfere with the sum awarded. Equally, I would not wish to review the sum of $5,000 for future medicals, although I think that this is perhaps a little generous. However, the award of $30,000 for future economic loss does not seem to me to be within the range established by the evidence. There was evidence that the instability of the ankle might cause economic loss, but this condition could be eradicated by surgery - and the risk of loss excluded - for which an allowance had been made. His Honour was, in any case, clearly considering only the economic detriment which might be caused by degenerative changes in the ankle attributable to the accident. He assessed its extent by reasoning in this way. If the plaintiff "were in that position now" ie suffering symtomatic changes which affected his working capacity "$100 per week would not be an inappropriate sum by way of loss of capacity to earn income. If I allowed $100 per week for 20 years being the period when the degenerative changes become symptomatic to retirement which also is towards the extreme end of the range of prognostications by Dr Davidson, it would amount to $66,000 but such a sum would have to be 4 UNREPORTED JUDGMENTS reduced by at least 50 per cent in order to accommodate the very real vicissitudes of life having regard to the type of active life the young man sees for himself. I consider therefore the sum of $30,000 appropriate to embrace all future economic loss." But that approach, with respect, reveals error. First, there was no specific evidence that arthritis would affect working capacity. So the allowance ought to have been only for a chance that it would, and of an order very hard to assess. Secondly, the judge takes as the starting point of his calculation the sum necessary to produce $100 per week for the twenty years next after judgment. But the plaintiff will (so far as Dr Davison is concerned have no use for the money during that period because his symptomatic arthritis will not commence until the period has ended ie twenty years from trial. It is true that in many cases the evidence is uncertain about the date of onset of possible physiological degeneration; and when allowing for this in an award of damages for pain and suffering and the like it is not always necessary to provide for delayed onset. However, I think that such provision is appropriate and practical when the allowance is for future diminished earning capacity and the evidence about time of onset establishes with some exactness (though hardly with precision) that onset will be considerably delayed. If the plaintiff received, now, $66,000 or $33,000 he would be substantially over compensated. To provide $66,000 in twenty years' time assuming interest at five per cent would require $24,882. To provide $33,000 at the same time would need $12,441. The learned judge applied a heavy discount for vicissitudes because of the active career (with, I presume, the increased risk of non-compensable accidents) which the plaintiff desired to follow. But he does not allude in any way to the necessity to discount for deferment of the estimated benefit; and, as far as I can see, he overlooked it. This, with respect, amounts to an error of principle which requires reassessment. I accept the judge's award save for the figure for economic loss. In my view there is a greater than even chance that. the plaintiff will develop symptomatic arthritic changes, after twenty five years from trial ie at age thirty six or thereabouts. It is improbable that his earning capacity would be affected for some time, if, indeed, at all. But there is a chance that it might be. The evidence is uninformative about the extent of the chance. The plaintiff's desired working pattern does require a larger than usual discount, though hardly fifty per cent in my view. I would be content to take twenty per cent - after all, I do not know that the job of a shipwright is exceptionally hazardous. At this stage the assessment is more than usually in need of the crystal ball commonly (but not explicitly) invoked in these cases. I think, however, that one can say that the problem is to compensate a plaintiff who in twenty five years' time at age thirty six will probably suffer pain and stiffness in an ankle which will bring with it an undefined possibility of affecting his earning capacity at some time and to some unstated extent up to retirement (say at sixty five) but subject to the greater than usual chance of injury and incapacity from some work-related accident. Arriving at the solution obviously involves a wide range of options which looks very like the exercise of a judicial discretion. But whatever the solution it must, in my opinion, pay heed (as Shadbolt DCJ's did not) to the deferment of whatever compensation is thought to be required, and cannot attempt to predict (or do much to accommodate) future trends in the value of money. URJ WILLIAMS v MITCHELL (Meagher JA) 5 I would therefore award the plaintiff under this head the approximate amount necessary to produce $25,000 in twenty five years, and assuming interest at five per cent, which is $7,375, say $7500 Accordingly, I would reduce the assessment of damages by the sum of $22,500. I propose therefore that the appeal be allowed with costs; that the judgment below, with the exception of the costs order, be set aside, and that in lieu thereof judgment for the plaintiff for $46,500 be substituted to take effect from 13 April 1989. The defendant/respondent is entitled to a certificate under the Suitors Fund Act in respect of the costs of the appeal. Priestley JA I agree with Samuels JA. Meagher JA I agree with Samuels JA. Appeal allowed with costs. The judgment below, with the exception of the costs order, is set aside, and in lieu thereof judgment for the plaintiff for $46,500 substituted, to take effect from 13 April 1989. The defendant/respondent is entitled to a certificate under the Suitors' Fund Act in respect of the costs of the appeal. Counsel for the Appellant: K Rewell Counsel for the Respondent: DJ Cochrane Solicitors for the Appellant: Abbott Tout Russell Kennedy Solicitors for the Respondent: Johnston and Partners