JIM DONEVSKI v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES KIRBY P, MAHONEY JA and HOPE AJA 14 August 1991 [1991] NSWCA 82 DAMAGES — motor vehicle claim — 16 year old storeman packer injured — suffers loss of spleen and serious soft tissue injures — trial judge (P J Phelan DCJ) awards $5000 for diminution of future earning capacity — appeal on that head of damages — held: (allowing appeal) (1) The trial judge had erred in not making allowance for the possibility of future incapacity by reason of the loss of the spleen which reduced the appellant's capacity to resist periodic infections; (2) Having found the appellant permanently unfit for heavy work compensation of $5000 for loss of earning capacity was manifestly inadequate; (3) $20,000 substituted for this head and damages re-assessed accordingly. Kirby P Mr Jim Donevski (the appellant) was injured in a motor vehicle accident on 7 April 1985. This was the same motor vehicle accident in which his brother, Mr Bill Donevski, was injured and which was the subject of the immediately preceding judgment and orders. Judgment in motor vehicle assessment The appellant was aged sixteen years at the time of the accident. The circumstances of the accident are not important to the resolution of the appeal. Liability to pay damages to the appellant was admitted by the statutory defendant, the Government Insurance Office of New South Wales (the respondent). The appellant's case came on for trial before P J Phelan DCJ in the District Court on 17 March 1989. The appellant's principal injuries and disabilities were a loss of consciousness of unspecified duration, right-sided forehead abrasions, a serious abdominal injury due to a ruptured spleen, and soft tissue injuries to the lumbo-sacral area of the spine. For these injuries and disabilities he claimed damages. As a result of the serious injury to the appellant's spleen, the spleen was removed. The appellant's complaints at the trial were principally of pain in the neck, backache, psychological disturbance and headaches which were attributable, so he said, to the physical injuries which he had suffered. Phelan DCJ awarded the appellant damages in the amount of $49,105.05. This Judgment was made up as follows: General damages 40,000.00 Agreed out-of-pocket expenses 910.25 Past economic loss 2,494.80 Interest on past economic loss 700.00 Diminution of future economic capacity 5.000.00 TOTAL 49,105.05 2 UNREPORTED JUDGMENTS The appellant has appealed to this court against the judgment entered by Phelan DCJ. He claims that the award for past and future economic loss was appealably low. On the appeal, the ground of appeal relating to past wage loss was not argued This left, as the only challenge to the award, the component of $5,000 for future loss of earning capacity. Employment history of the appellant At the time of the accident the appellant was working as an assistant storeman and packer for Woolworths Limited, Riverwood. He had been employed there for about three and a half weeks before the accident. The appellant had left school at the beginning of 1985. He had not obtained the School Certificate when he left. Following the accident, the appellant did not return to Woolworths Ltd. He obtained employment with Tandy Electronics on 30 September 1985. In that employ he was in receipt of a weekly salary of $123. He had been earning $113.40 per week whilst working for Woolworths. In that way, he demonstrated an increase in his earning capacity following his injuries. However, that increase was doubtless, in part, connected with his very young age when he was working for Woolworths and the normal increase in pay for junior employees. It does not demonstrate anything about the impact of the injuries on his earning capacity. The appellant gave evidence that he had not returned to the job at Woolworths because, as an assistant storeman and packer, his work there involved a great deal of lifting and packing. He said that this was work which would be difficult for him by reason of the injuries which he had sustained. So much appears to have been accepted by his Honour. So much appears reasonable on the medical reports tendered. The circumstances in which the appellant left his post-injury work at Tandy Electronics, where he was employed as a sales assistant, were left in a state of unclarity on the evidence of the trial. He gave evidence that he had been physically able to cope with the work at Tandy, apart from the lifting of certain items, such as musical speakers. Yet he left that work and did not secure other employment. Why? In cross-examination the appellant confirmed that he was able to do the work at Tandy "with pain". It was agreed, and rightly I believe on behalf of the appellant, that the trial judge's determination that the appellant left Tandy of his "own volition" was unassailable in this Court. Certainly, the appellant did not consult a medical practitioner after leaving Tandy until 16 January 1986. This delay would appear to rule out a medical explanation for this cessation of work. When cross-examined about the pain he had suffered whilst he was working at Tandy, the appellant said: "It's just that when lifting I would get a bit of pain, you know, nothing unusual." Following his departure from Tandy, the appellant went to the Commonwealth Employment Service and was sent to various job interviews, which he duly undertook but without success. He received sickness benefits. After a time, the Commonwealth Employment Service ceased to send him for interviews. This was the employment position of the appellant when the matter came on for trial before Phelan DCJ. Medical opinions on the appellant's disabilities His Honour found that the appellant's orthopaedic injuries precluded, and would preclude, him for some time, probably permanently, from work involving heavy lifting, prolonged or repetitive bending and prolonged standing. It is enough to say that this conclusion, although not necessary, is clearly supported by the medical evidence. URJ DONEVSKI v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Kirb3 P) The appellant's general practitioner, Dr Vijeyarasa, said: "He... appears to have sustained soft tissue injuries to the thorasic and lumbar sacral spines." Dr Vijeyarasa said that the injuries were: "... permanent and though some of the symptoms and signs may improve it is highly unlikely that he will be free of the pains for the rest of his life. Dr Peter Conrad, an orthopaedic surgeon, considered that the appellant was fit for light work not involving heavy lifting, repetitive bending, standing or sitting in one position for any length of time. He considered that his prognosis was uncertain. Dr Robert Smith considered the appellant would be fit for a wide range of duties, provided he was able to avoid heavy lifting, prolonged or repetitive bending and prolonged standing. He said the prospects of spontaneous improvement were not good in his case. Because of his youth, Dr Smith considered that the long term prognosis would have to be "guarded". Dr William Berns, to whom the respondent sent the appellant, gave evidence concerning the significance of the operation for the removal of the appellant's spleen. In the course of his report Dr Berns said: "Removal of the spleen is not usually associated with post-operative morbidity or complications, and the spleen is not essential to life. Splenectomised persons appear to predispose the patient to an increased risk of severe bacteraemic infections with an impressive predominance of pneumococcal infections other organisms have included. Neisseria meningitidis (streptococas, pneumoniae or H influenzae, ascherida coli and pseodomonas other infections may occur with increased frequency. The spleen responds to infection with proliferation of T-lymphocytes and antibody-forming B cells as well as by proliferation of phagocytic cells. The spleen also serves as a reservoir for platelets but not of red blood cells or leucocytes. Vaccination against bacterial infection may be done in children and younger persons to prevent infection." It is clear from this report that the removal of a spleen, although not normally having serious consequences, can reduce the capacity of a person who has suffered the loss of the spleen to respond efficiently to transient infections. Accordingly, it is a possibility in the case of the present appellant - and I put it no higher - that in future years, with periodic infections, that he may not be able to respond to them with the efficiency that he would have been able had his spleen not been removed. Obviously this heightened risk will possibly reflect itself in periods when he cannot work or when incapacity for work would be longer than in an uninjured person. Phelan DCJ rested his findings concerning the appellant's loss of economic capacity exclusively upon his determination that the appellant was unfit for heavy lifting, prolonged or repetitive bending and prolonged standing by reason of the soft tissue injuries which he described. He did not expressly refer to the disabilities in respect of the spleen. As in the case of Mr Bill Donevski, this is yet another instance where Phelan DCJ had to deal with the problem of assessing the future loss of earning capacity without the benefit of any clear evidence concerning the earnings which the appellant might have received, had he not been injured. Nevertheless, this has long been a phenomenon of the courts in dealing with cases of this kind. In many cases it is not possible to reach a level of precision because of the indefinite pre-injury working history of the injured person. There is authority in the High Court of Australia which permits a judge to rely upon his or her general assessment of the disability and to draw its economic consequence from 4 UNREPORTED JUDGMENTS implications derived from the average earnings which prevail in the community. The judge must then do his or her best to determine the amount which should be provided as a capital sum for the loss of earning capacity suffered. See Dessent v The Commonwealth of Australia (1977) 13 ALR 437 at 447 (HC). Two errors warrant reassessment on appeal For two reasons it would appear to me that error has been shown in the determination by Phelan DCJ of the damages which should be provided to the appellant in this case for his future loss of earning capacity. The first I have already sufficiently identified. It is the possibility that, in future years, the appellant will suffer loss of time from remunerative activities by reason of a prolonged infection, the prolongation being the result of the loss of the spleen. This is not a probability. However, the appellant is entitled to be compensated for possibilities in this regard. Nothing in what his Honour said indicates that he turned his attention specifically to that component of the appellant's claim. If this would not, of itself, have been sufficient to disturb his Honour's award of damages, it is, I think, sufficient to do so in combination with the second reason. This was that $5,000 for loss of economic capacity by reason of the accepted soft tissue injury is manifestly too low when his Honour has accepted that the appellant was permanently unfit for work involving heavy lifting and prolonged or repetitive bending, and prolonged standing. It would perhaps have been open to his Honour to hold, on the basis of the orthopaedic and other evidence before him, that these disabilities were likely to recover. However, it would appear that he accepted, as would I, the opinions of the appellant's medical practitioner. In particular he accepted his general practitioner's view that spontaneous recovery was not likely in his case. Upon that basis, the appellant's claim was to be approached by Phelan DCJ as one in which a person with limited skills, with essentially only his labour to sell, with a background only of labouring work, had suffered a serious loss of capacity to offer himself for heavy work which involves lifting, bending and prolonged standing. For such a person having such a serious disability the awarded damages of $5,000 is manifestly inadequate. It represents only about $5 a week for the projected working life of the appellant. Self-evidently, for the disability found by his Honour, this assessment is inadequate. Conclusion, substituted judgment and orders I am therefore of the opinion that error has been shown and that it is necessary to set aside the award of damages which is Honour entered. This Court has been invited to proceed to a reassessment. There is no reason why the Court cannot safely do so. A more accurate assessment of the loss of economic capacity on the part of the appellant is to assume that he would have lost approximately $20 to $25 per week for the future. This loss quantifies, using the appropriate table, at a total loss rounded to $20,000 for loss of earning capacity. That is the sum which I will substitute for the sum of $5,000 which his Honour allowed. As all of the other components of the appellant's damages have been agreed or are not disputed in the appeal, there is no reason for the Court to proceed to a reassessment of any of them. The orders which I therefore propose are: 1. Appeal allowed; 2. Set aside the judgment of Judge Phelan; 3. In lieu thereof, substitute a judgment in favour of the appellant in the sum of $64,105.05 to take effect from 17 March 1989; 4. The defendant to pay the plaintiff's costs of the trial; and 5. The respondent to pay the appellant's costs of the appeal, but to have, if so qualified, a certificate under the Suitors' Fund Act 1951. URJ DONEVSK! v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Hop& AJA) Mahoney JA I agree with the judgment which has been given by the President. Hope AJA I agree. 1. Appeal allowed; 2. Set aside the judgment of Judge Phelan; 3. In lieu thereof, substitute a judgment in favour of the appellant in the sum of $64,105.05 to take effect from 17 March 1989; 190. 4 The defendant to pay the plaintiffs costs of the trial; and 5. The respondent to pay the appellant's costs of the appeal, but to have, if so qualified, a certificate under the Suitors' Fund Act 1951. Counsel for Appellant: MJ Williams QC and J Keesing 15 Solicitors for Appellant: Radin and Associates Counsel for Respondent: RC Tonner Solicitor for Respondent: Solicitor for Government Insurance Office of New South Wales