CAREY v GRUZMAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, PRIESTLEY and MEAGHER JJA 31 October 1990, 10 April 1991 [1991] NSWCA 45 DAMAGES FOR PERSONAL INJURY — plaintiff injured in car accident -liability admitted — injury affected capacity to work — plaintiff had earlier suffered unrelated injuries also affecting work capacity. APPEAL AND CROSS APPEAL — trial judge's findings of fact concerning effects of accident challenged — also his conclusions on medical evidence — no reason shown by appellant/ defendant for changing trial judge's conclusion — similarly plaintiff's cross appeal not made out. Samuels JA Mr Neville Gruzman (whom I will call "the plaintiff') was born on 14 November 1925 and is a distinguished architect. Towards the end of 1983 the Royal Australian Institute of Architects offered him a 'retrospective' which was held in November and December of that year and included twenty five buildings which the plaintiff had designed between 1949 and 1983. He was, we were told, the first living architect ever to be invited by the Royal Australian Institute to accept a retrospective showing of his works. This was an unique honour, but an expensive one since it cost him $50,000 "to mount the exhibition altogether." In November 1982, when he suffered the injuries in a motor car accident which form the subject matter of this claim, he regarded himself as at the height of his professional powers and ready to extend his capacity for innovative architectural design beyond the boundaries of scale which his own preferences had previously set. Unfortunately, in that year and the previous year, the plaintiff had met with a number of earlier physical misfortunes whose influence upon his capacity to work was a significant issue in the case. In August 1981 while travelling in Sri Lanka he contracted a viral disease and spent six weeks in St Vincent's Hospital, and a further eight to ten weeks or thereabouts at home recovering from its effects. On 16 November 1981 he struck his head on some scaffolding at a building site in Turramurra, and on 5 January 1982 was admitted to Sydney Hospital for surgical treatment of the serious consequences of that occurrence. On 6 January 1982 he commenced receiving workers' compensation payments from the company, Gruzman Pty Ltd, by which he was employed and through which he conducted his architectural practice. Then, in September 1982, he suffered a heart attack and underwent a quadruple coronary bypass operation. On 21 November 1982 he was involved in the car accident for which the defendants admitted liability, and in which he received injuries to the neck, back, right shoulder and left leg which, so the plaintiff asserts, have almost wholly destroyed his earning capacity and his ability to pursue the art Which had previously filled his life and to which he was entirely dedicated. Understandably, a serious question arose as to the extent to which the plaintiff in November 1982 had recovered from the head injury and the coronary episode, it being the defendants' general contention that the disabilities which the plaintiff sought to attribute to the motor vehicle accident and its consequences were, in 2 UNREPORTED JUDGMENTS truth, the sequels of a severe head injury closely followed by a coronary episode serious enough to require surgical intervention. Loveday J, who tried the action (the proceedings took four days from 8 to 11 August 1988 when judgment was reserved it was delivered on 19 August 1988), concluded that as at that date the plaintiff continued to have "significant incapacities as a result of these medical conditions, all of which of course are independent of the motor vehicle accident." The medical conditions to which his Honour was referring were the effects of the viral disease, the head injury and the coronary bypass operation or, more precisely, the underlying cardiac condition which had made it necessary. However, the judge accepted medical evidence to the effect that before the motor vehicle accident the plaintiff had asymptomatic degenerative cervical and lumbar spondylosis which the accident significantly aggravated. It is important to appreciate that although Loveday J was satisfied that "the effect of the motor vehicle accident is a major contributing factor to his work performance or rather, lack of it in recent years", he appears to me to have been equally clear that "to some extent" the plaintiff's failure in the years immediately before the trial to have earned the fees that one would expect an architect of his distinction to have earned was "the result of injuries and illness not associated with the motor vehicle accident". Hence, as his Honour then emphasised, the plaintiff's claimed economic incapacity was not due wholly but only in part to the consequences of the motor vehicle accident and the injuries which it occasioned. In the upshot the learned judge awarded the plaintiff the sum of $253,272 made up as follows: Agreed out of pockets $ 1,272.00 Economic loss accrued to trial 107,000.00 Future economic loss 80,000.00 Pain and suffering etc. 60,000.00 Interest on damages for past pain and suffering 5,000.00 $253,272.00 The defendants have appealed, asserting that the assessment of damages was excessive in all its major components, and complaining also that a medical report by Dr Peter Blum, which was tendered by the defendants and rejected, should have been admitted. The plaintiff cross appealed, contending that the award of damages for past and future economic loss was unreasonably low, that it was an error for his Honour to have found that it would have been unreasonable to require the defendants to pay the sum of $90,000 for the installation of an inclinator at the plaintiff's house, and assigning errors to the learned judge's calculation of interest and in his selection of an income tax rate to be applied to the estimate made of the plaintiff's likely gross earnings uninjured. The case is not without its complexities and I think that the best way in which to start is to examine the effects of the head injury and the coronary surgery so as to establish the extent, if any, to which they were still manifest at the date of trial and thus continued to operate as a factor in the plaintiff's claim for diminished earning capacity. The head injury occurred, as I have said, on 16 November 1981. Following complaints of inability to move, extreme fatigue and unsteadiness of gait made to his physician, Dr George Hall, the plaintiff was referred to a neurologist, Dr WJG Burke who saw him in January 1982 and, having by means of a CAT scan established the presence of a subdural haematoma, referred the plaintiff to Dr TJ Connelley who thereafter on three occasions aspirated collections of blood. After these procedures were apparently successfully completed, Dr Burke does not URJ CAREY v GRUZMAN (Samuels JA) 3 appear to have seen the plaintiff until December 1984 when he was concerned with complaints made about the injuries received in the car accident. He does record, however, that at that time the plaintiff found his memory and concentration "now only slightly impaired but he complained of exhaustion" and these complaints relate not to the car accident but to the earlier chapter of misfortunes. Dr Burke said in evidence that he then found the plaintiff normally alert and with no obvious signs of brain impairment. However, in cross examination he said: "Q. Indeed in your view Mr Gruzman has sustained some lasting impairment of his higher functions? A. He mentioned memory impairment and the psychometric examination did indicate some impairment of recent memory, concentration, visio spacial (sic) conceptualising, that is what was mentioned in Mr Rawling's report. Q. You saw in 1985 the same sorts of problems would have persisted, would that be correct? A. At that time he found, he said his memory and concentration were now only slightly impaired but exhaustion was his main kind of mental complaint. Q. You did no testing yourself? A. This is just purely a bedside examination at St Vincents Private. Q. But he had said to you he was experiencing some continuing problems as a result of his accident in November 1981? A. Yes." There are, however, psychological reports upon which the defendants rely to show that in 1988 any impairment of function was attributable in part to the brain damage. The reference in Dr Burke's evidence to Mr Rawling is to a report made to Dr Burke by Mr Peter J Rawling, a clinical psychologist, and dated 24 June 1982. Mr Rawling's conclusions were that "psychometric assessment produced clear evidence of a deficit in short term memory and in the ability to sustain and direct concentration and resist distraction. There was some evidence to suggest a mild degree of impairment in visual analysis of visuo constructional reasoning." Another consulting clinical psychologist, Mr James McCallum, saw the plaintiff on 5 and 6 June 1984. He produced a long report which contains two findings of significance for present purposes. First, Mr McCallum took the view that the results of tests designed to assess the plaintiff's general intellectual functioning were: "well below the estimate of premorbid intellectual functioning level. Mr Gruzman was an architect of status and reputation in his profession and this, considered together with specific subtest scores indicates that he would have been functioning in the superior to very superior range of intellectual ability up until relatively recent times...... The Wechsler Adult Intelligence Scale - (revised) - test results indicate a significant deterioration across a wide range of intellectual tasks and particularly so in the performance of nonverbal functioning. Inspection of his response record on the verbal subtests shows patchy deterioration, often of significant magnitude...... Prognosis for improvement is poor and it is most unlikely he will be able to continue functioning in his chosen career. He has expressed an interest in sculpture but he may have difficulty in pursuing this due to his extreme slowness and his reduced manual skills. It is clear he needs counselling in a participating way to assist him in coming to terms with his changed cognitive status." 4 UNREPORTED JUDGMENTS However, a somewhat different picture is displayed in a report by Mr WGJ Reid, a consultant in clinical neuropsychology, who saw the plaintiff, I assume, in October 1987; his report is dated 19 October. Mr Reid had available to him Mr McCallum's report of 9 July 1984. Mr Reid found that the plaintiff was functioning in the "superior range" of intellectual ability and added: "His present level of functioning reveals that he has made a significant recovery of verbal intellectual skills from when he was last assessed in 1984, however his nonverbal performance skills, although in the normal range, are significantly below that expected for his pre morbid ability." The conclusion therefore appears to be that the plaintiff had made a significant recovery in intellectual and cognitive functioning since 1984. He retained, however, "mild significant residual cognitive defects in memory retrieval and organizational skills consistent with the residual frontal lobe impairment from his head injury suffered in November 1981." Mr Reid added that it was his clinical impression that the plaintiff would compensate for his residual cognitive deficits to the point where he appeared to be cognitively managing his career demands. In cross examination he said: "Q. I take it is fairly clear from your examination that you would not have expected Mr Gruzman to be able to perform his work to the various levels of skill that he had prior to his head injury in 1981, would that be correct? A. That is correct. Q. It is fairly obvious? A. Yes." The judge referred also to a report of Dr Peter Blum, a consultant neurosurgeon, of 3 February 1983 who considered that: "One could expect him to have residual defect both of concentration and particularly of memory.... He is entirely genuine and I think it highly unlikely that he will return to his former effectiveness as a consultant architect." I have, I think, with one exception, summarised the medical evidence which deals with the effects of the plaintiff's head injury. The exception, to which I will come, relates not to evidence which was admitted but to evidence which the defendants submit ought to have been admitted. So far as the plaintiff's own evidence was concerned he agreed that, following the head injury and the surgical procedures which were rendered necessary, he became aware of some impairment of memory and concentration. But these problems he was able to overcome by developing a means of stimulating or maintaining memory by keeping notes and using them in conversation and in the solution of problems of design. It seems to me that, from the written record, at all events, the plaintiff asserted that had his only deficit been that produced by the head injury (he contended that he had no ill effects stemming from the coronary surgery) he would have been able to carry on his practice normally. This claim, however, Loveday J did not accept. As I have already indicated the learned judge found that the plaintiff continued to have "significant incapacities" as a result of medical conditions independent of the motor vehicle accident and its effects. I add that Dr George Hall, a cardiologist who had treated the plaintiff, did not share his optimism about the consequences of the coronary surgery, expressing the view that although the plaintiff had certainly done well in relation to the quadruple bypass he should not stress himself to the point of fatigue or of emotional stress. There was thus clear evidence before the judge from Dr Hall about the restrictions which the coronary surgery placed upon the plaintiff's activities. An analysis of the evidence concerning the brain damage yields perhaps a less URJ CAREY v GRUZMAN (Samuels JA) 5 positive answer. Looking only at the written material, it seems quite clear that when Mr Reid saw the plaintiff the latter had made, as Mr Reid said, a considerable recovery in his cognitive functioning since 1984. And it must be noted that Mr Reid expressed the opinion that the plaintiff would have been able to carry on his profession as an architect. However, it seems obvious to me that a primary judge might very properly conclude from the whole of Mr Reid's evidence, and from the evidence of Dr Burke and the totality of the written reports that, as at the date of trial, the plaintiff had not fully recovered from the effects of the head injury which constituted a continuing and permanent deficiency of memory and concentration. No doubt the plaintiff had succeeded in overcoming these detriments to an extent but, as Loveday J concluded, they still represented a handicap which limited the full exploitation of his professional capacity. It is impossible, in my opinion, to conclude that the learned judge's finding in this respect was wrong. Equally, of course, it is impossible, in my opinion, to argue successfully that the learned judge should have found that the plaintiff's capacity for work had been substantially destroyed by reason of injuries unconnected with those sustained in the car accident. However, the defendants seek to increase the weight of their case by adding Dr Blum's report of 13 December 1983 which was tendered but rejected when counsel for the plaintiff objected that it had not been served in compliance with Pt36 R13A of the Supreme Court Rules. The learned judge did not give reasons for excluding the report but no doubt he did so for the reason to which I have referred. This constituted, of course, a classic exercise of judicial discretion and would ordinarily be largely invulnerable to review. Counsel submits, however, that the learned judge failed to appreciate that the report, having been obtained by the former solicitor for the plaintiff to support the plaintiff's workers compensation claim, had always been in the plaintiff's evidentiary portfolio. This is not an answer, because the rule is designed to inform the adversary of the evidence which the party giving notice proposes to call so as to give the adversary the opportunity of summoning the witness for cross examination. Hence I do not consider that the facts that the plaintiff's former solicitor had had the report, and that presumably the solicitor then acting had inherited it, provide any ground upon which the learned judge's discretion should be reviewed. In any case, by dint of Pt51 R16, this Court cannot order a new trial (which would be the remedy) on the ground of the improper rejection of evidence unless it appears that some substantial wrong or miscarriage has been thereby occasioned. I do not consider that this requirement has been satisfied. The gravamen of Dr Blum's report is that he had noted "quite marked cerebral atrophy with particular atrophy in the frontal lobes and to a lesser extent in the left temporal lobe" which supported the plaintiff's complaints of inability to concentrate and to do his work at his previous high level. But Dr Burke had been examined by the plaintiff's counsel about the significance of signs of cerebral atrophy in a CAT scan (which of course suggests that counsel was covering in advance an anticipated initiative by his opponent) and was told that in effect there was a poor correlation between CAT scan findings of atrophy and brain performance. I do not therefore think that the addition of the evidence to the material which had already found its way into the case would have significantly altered the contending weights of proof; or, to put it more precisely, I do not consider that the absence of Dr Blum's report is of such significance as to have constituted a miscarriage or a mistrial. Furthermore, as this Court has previously observed, there remains a further exercise of discretion available to order or deny 6 UNREPORTED JUDGMENTS a new trial even if the improper admission or rejection of evidence has amounted to a miscarriage of justice; and even if I were of a different view from that just expressed, I would not exercise my discretion to order a new trial in the circumstances of this case: see Burchett v Kane [1980] 2 NSWLR 266. Accordingly, it is necessary to consider the effect which the injuries sustained in the motor vehicle accident had upon the plaintiff in the context of an existing disability. In that accident the plaintiff suffered injuries which I have briefly described, and which manifested themselves primarily in difficulty in flexing the spine, and in pain in the right arm and shoulder after he had been working for more than fifteen or twenty minutes in the posture which he adopted for the creative process. This introduces a central problem in the case which arises in this way. The plaintiffs method of work, that is his method of designing, was to draw by freehand "sitting over a drawing board in a 'crunched up' position, thereby concentrating his attention and energies" - to borrow the learned judge's description. The plaintiff himself spoke of "being crunched over a drawing board for many, many hours..." He asserted with determined vehemence that he was unable to design in any other position and could not, consistently with his method of work, adopt any other posture. He found it necessary to immerse himself in the detail of his drawing and, since his approach to design was a very detailed one, and since he preferred to design everything himself down to the most microscopic features, he felt comfortable only by adopting the posture described, in which he leaned closely forward over his drawing board with his head almost on his forearm, his eyes tracking the pen. Moreover, he said that he was not prepared to engage in architectural drawing and thus in accepting or executing commissions which did not involve detailed personalised design. The learned judge accepted the plaintiff's evidence that the "crunched up" position was his usual method of work; and we indicated at the close of the appellant's argument that we did not think that that finding could be disputed by the defendants. The defendants, of course, submitted to the learned judge that the plaintiff had acted unreasonably in not managing to adopt some other working posture which he could accommodate to the damage to his right shoulder and arm. The plaintiff, I must emphasise, had said that he had tried to re educate himself in this way but had failed. His Honour, "with some hesitation", as he said, found that the plaintiff had not been unreasonable in this respect, and had not failed in his duty to mitigate his loss. Here again, it seemed to the court that this was a finding so redolent of credit, and in this case affected by the robust rather than the subtle influence of demeanour, that it was not open to challenge on appeal. The learned judge's finding, although he does not expressly mention the word "demeanour" was quite obviously founded upon the view he ultimately formed about the extent to which he could believe what the plaintiff said on this point, and he came to the conclusion that the explanation was credible and adopted it. Hence, the learned judge has found, and to my mind these findings must stand, that the plaintiff, although affected by defects of memory and concentration which would have reduced his capacity below its pre 1981 optimum in any event, is additionally affected by the injuries sustained in the motor vehicle accident which have further reduced his capacity to earn. As I read the plaintiffs evidence, his case is that he is now, in practical terms, unable to work at all as a result of disability affecting his shoulder and arm. But I do not think that the learned judge accepted this view of the matter. The effect of the motor vehicle accident, Loveday J said, "is a major contributing factor to URJ CAREY v GRUZMAN (Samuels JA) 7 his work performance or rather, lack of it in recent years." Nowhere does the judge say that the consequence of the motor vehicle accident was to wipe out completely the residual capacity which the brain damage had left. I read the judgment as taking the view that the motor vehicle injuries, if I may call them that, have destroyed part only of a reduced working capacity. I emphasise this because it forms the necessary background to the way in which the learned judge approached the assessment of damages for diminished earning capacity. The plaintiff set out to establish the loss of income which had accrued from the date of the accident to the date of the trial. This he endeavoured to do by calling Mr JG Stewart, a partner in the firm of accountants who had acted for the plaintiff for about twenty years. The firm retained its records for seven years so that they were able to produce tax returns and other financial records dating from 1979. From the transcript Mr Stewart seemed to be in a somewhat uncertain state about much of the history of the plaintiff's transactions and this was explained when, in cross examination, it appeared that he had not been responsible for the preparation of the accounts; and that his partner, who had personally handled the plaintiffs tax affairs, was overseas. Consequently, Mr Stewart's evidence, and this is in the circumstances no criticism of his capacity or application, was of little assistance. Furthermore, the plaintiff himself said, more than once, that he had never been able to regulate or, indeed, to understand his own financial transactions or, at least, the recording of them, so that he was unable to add anything useful to the proof; and was not in a position to assist inquiries as to when certain things had happened or to indicate the derivation of sums of apparent revenue. Indeed, he did not understand, he said, the Coopers and Lybrand report to which I am about to refer, and seems not to have asked his legal or financial advisers to explain it to him, although it was central to the case against him. However, he appeared in cross examination to follow the figures well enough. The defendants called Mr Anthony Wehby of Coopers and Lybrand who had furnished a report dated 28 September 1987. He had available to him a comprehensive selection of income tax returns for the plaintiff personally and for various companies with which the plaintiff was connected. He was specifically required to ascertain the financial loss sustained by the plaintiff in the period from 21 November 1982 to 30 June 1986, assuming that any loss sustained stemmed from the car accident and not from any pre existing medical condition. His conclusion was that there was "not sufficient evidence to support a claim for losses in respect of the period from the date of the motor vehicle accident to 30 June 1986." In my opinion, the figures in Appendix A to his report wholly support that conclusion. Mr Wehby had available to him the following records: (i) The income tax returns of the plaintiff for the financial years 1979 to 1986 (ii) The audited accounts of Urban Architects Pty Limited (whose business was architectural consultancy) for the financial years 1979 to 1986. (iii) The audited accounts of Gruzman Pty Limited (whose principal activities were stated to be the practice of architects, town planners, landscape architects and environmental designers, which employed the plaintiff and in which the plaintiff held 9 of the 12 issued "A" shares and was thus entitled to receive a maximum of 69% of any distributions) for the financial years 1979 to 1986. (iv) The audited accounts of Rosmil Pty Ltd (whose principal activities were stated to be investment, share trading and trust administration) for the financial years 1979 to 1986. 8 UNREPORTED JUDGMENTS (v) The audited accounts of Gruzman Pty Ltd Staff Fund for the financial years 1979 to 1986. vi) The income tax returns of the Gruzman Family Trust for the financial years 1982 to 1986. The analysis of these documents (which I might add was not challenged in the appeal) revealed that the plaintiff's personal net architecturally based income was as follows: 1979 1980 1981 1982 1983 1984 1985 14,035 7,143 10,438 3,970 12,912 13,550 3,597 A further appendix restated the whole of the plaintiff's income from architectural sources, that is his personal architecturally based income together with notional income from Urban Architects Pty Limited in 1987 dollars (taking the base year as the financial year 1980/81) as follows: 1979 1980 1981 1982 1983 1984 1985 28,572 12,995 17,045 5,847 17,068 16,758 4,296 It will be seen that these figures, in particular taking the financial year ended 30 June 1981 as the last year in which the plaintiff was unaffected by illness or trauma, are incapable of supporting any significant annual loss of income from the date of the accident until the date of trial. Equally, since the 1981 financial year remains the index for this purpose also, there is little support for the very large sum which the plaintiff claimed represented the extent of his diminished earning capacity for the future. The plaintiff endeavoured to strengthen the far from impressive evidence furnished by these figures in two principal ways. First, his counsel pointed to the considerable property holdings from which he derived investment income in aid of the argument that he must have made large sums of money from his practice in order to have acquired these assets. The kernel of that argument is far from self evident and, in any case, it is incapable of providing any figures of sufficient precision to enable them to be used for the type of calculation in question. The learned judge was evidently not disposed to take much account of this contention. I can appreciate that he may well have doubted the accuracy of evidence which the plaintiff sought to give about his income or assets. The following passage from the plaintiff's cross examination indicates the flavour of the case, and I quote it at a little length: Q. You sold a property at some stage and you received some money? Yes. How much was it? I think that it was $375000. What did you do with the money? It was lodged with a friend of mine to invest. For how long? For as long as he thought necessary. Is it still there? Some is still there. I have not pursued where it is. Q. Are you saying that over the past six years you could not have afforded to spend $18000 on an inclinator? (This was the plaintiff's original estimate of cost) You have said that you could not have afforded to do it. That was complete and utter nonsense, was it not? A. No, it was not complete and utter nonsense. Q. It was untrue? POPOPOPOP URJ CAREY v GRUZMAN (Samuels JA) 9 A. It was not untrue. Q. If you had wanted to spend $18000 or $28000 on a particular project you could have done it financially, could you not? A. Unfortunately not. I have absolutely no superannuation, no provision whatever for my future. My future was intended to be in the next twenty years when I intended to earn appreciable amounts of money. Since the accident happened my position is serious. Q. How many properties do you still own? A. I own the three where I live, my office, the house in Glebe that we have dedicated to our son and daughter when they come back from Melbourne. Q. You say that the answer to my question was entirely truthful? A. Certainly. HIS HONOUR: Q. Mr Gruzman, you are not claiming personal financial hardship, are you? I suppose these things are relative. How much is your place worth at the moment? A. That place is dedicated to go to the State. The whole three properties are to be bequeathed to the State as an architecture museum. I do not regard them as my properties at all. Q. That was not the question I asked. How much is it worth? A. I do not know, sir. Q. Where did the Rolls Royce Corniche money come from? How much did it cost? 60000. Where did you get the cash for that? I suppose out of the funds Mr Roberts referred to. Where is the balance of that sum? I assume that it is still on investment. Is it not your money? I suppose you can say that it was my money, yes. In whose name? What is his name? It is either in my name or my wife's name. . You must be paying tax on income from it? . Yes, the accountant would know. I am sorry, your Honour, but they are not things that I pursue. I deliberately left the Court when the accountants were talking because I do not understand what they talk about. Q. The accountant is not able to help us. I gather he is overseas, so we have to rely upon you. A. Lam sorry, sir, but I do not understand that kind of figuring. I understand architectural figuring. Q. It becomes relevant for a number of reasons. One possible relevance is that if you are very well off financially that may or may not affect your motivation, your need to work. You understand that, of course? A. I understand. It is quite untrue that my motivation - Q. I appreciate that your case is that you work not for money but for love more than money? A. Yes, and the desire to do the things that ought to be done. Q. You yourself have put forward these three properties as having been purchased by you? A. Yes. Q. It suggests that you are financially affluent? POPOPOPOPO> 10 UNREPORTED JUDGMENTS A. But the properties at Darling Point as far as I am concerned and my wife is concerned belong to the State. They are only occupied by us during our lifetime. The property in Queen Street is where my office is and the house at Glebe is for our daughter. They are hardly assets in the contemporary sense of the 5 word. The place at Pickering Road, Woollahra, has been sold? A. Yes. Sublime Point Road? Sold. Enmore Road, Marrickville? Sold. I'm sorry to sound peculiar but that is what those properties are for. Castlefield Street? Sold." Secondly, the plaintiff called evidence from two property developers and builders, Mr KG Arnold and Mr MJ Hills. Mr Arnold gave evidence that "around 15 1984" he offered the plaintiff a commission involving the redesign of a site at Petersham and that in "mid 1985" he made a similar offer in relation to a project in Leichhardt. Neither of these commissions was accepted. No explicit refusal was forthcoming in respect of the Leichhardt project but, so far as Petersham was concerned, the plaintiff ultimately told Mr Arnold "that he was too busy to do it." 20 Mr Arnold's evidence further was that he had a considerable quantity of work available which he would offer to the plaintiff if the plaintiff were able to do it. Mr Hills' evidence was that in October or November 1982 he offered the plaintiff a commission to redesign a site at McMahon's Point but the plaintiff refused. These matters were the subject of particulars which alleged that the offers 25 made by Mr Arnold took place "in or about February 1983" and "in or about November 1984", and hence a little earlier than his evidence put them; and Mr Hills' offer was said to have taken place in or about March 1983, a little later than the estimate he made in evidence. The plaintiff's evidence was that he was unable to accept these commissions 30 because of his physical disabilities at the time, attributable of course to the motor vehicle accident; because otherwise they would have been irrelevant to these proceedings. However, on 12 November 1984 the plaintiff filed an application for determination in the Workers' Compensation Commission in which he claimed partial incapacity for an indefinite period as the result of three episodes, namely 35 the head injury in November 1981, the viral disease contracted in August 1981 and the coronary bypass which was performed in September 1982. It will be helpful, I think, to set out in full the particulars annexed to the application: "Date and nature of Injury. 1. On the 16th or 23rd November, 1981 the Respondent, whilst at premises 40 known as 36 Banks Avenue, North Turramurra struck his head on a piece of scaffold. As a result the Respondent suffered a subdural haematoma in the right fronto parietal region extending up to the vertex. 2. In August 1981 the Respondent whilst abroad in the course of his employment contracted an infectious illness causing tiredness and lassitude. 45 3. The nature and conditions of the Respondent's employment including stress emanating from the subdural haematoma caused him to suffer from exertional angina resulting in the Respondent suffering an acute coronary insufficiency on 1 September, 1982 necessitating an emergency coronary bypass." Furthermore, the application claimed that both the plaintiff's weekly earnings 50 at the time of the application, and his average weekly earnings in the last year past from his occupation of architect, were in each case "nil". No response was POPO POO URJ CAREY v GRUZMAN (Samuels JA) 11 made to the question "Estimated ability to earn if not in employment". This application was the preface to the redemption of the employer's liability in respect of the matters claimed which took place on 21 November 1984 in the sum of $65,000. This document suggests that at about the time Mr Arnold and Mr Hills made their offers - giving some flexibility to the discrepancy between evidence and particulars - the plaintiff's earning capacity was significantly impaired by reason of the trilogy of mishaps which the application asserted and upon which the redemption was evidently based. Moreover, in consequence of those occurrences the plaintiff's ability to earn was indefinitely curtailed. His response to cross examination upon the point is not persuasive: "Q. Indeed you had received periodical payments for your inability to work for the period 6 January 1982 through to 21 November 1984. Is that correct? A. Well, if that is what the document says then it is correct. Q. In your claim for workers' compensation you claimed, either yourself or through your solicitors, that you were unable to perform the work of an architect over that period of time? A. That would be correct. Q. And your claim in relation to the future was that you would never ever be able to work again as an architect, is that correct? A. Well I don't know if that is it or not. Q. That is the claim that was being made on your behalf? A. [honestly don't know. It was handled by my solicitor and I don't honestly know what was said. Q. Did you read the medical reports that were produced in relation to this matter? A. No. Q. None of them? A. No. Q. Did you know why you received $65000 by way of redemption? A. Well as I understood it the insurance company didn't want to be responsible for any further disabilities that I might have. I am afraid I didn't even know what a redemption was. Q. And you say that you did not read a single medical report that was produced during that period in relation to yourself, is that right? A. This correct. (sic) Yes, I didn't." The plaintiff's own account of the onset of his coronary problem differs markedly from that contained in the application to the Commission. He said in his evidence in chief that in September 1982 he had "two very fortunate (no doubt this should be 'fortunately"*) minor heart attacks and the quadruple bypass" which, he added, had "rejuvenated me"; and following which he was able to walk briskly for several miles without any inhibition or any difficulty whatsoever. Later, he added that so far as his cardiac situation was concerned "T just function as I did when I was 25 years old." The discrepancy between this account and the complaints made in the application argue, at the least, some serious lack of liaison between the plaintiff and his legal advisers, since I infer from the way in which the application was drawn that the coronary bypass and the consequences flowing from it were active agents in the continuing incapacity which the application asserts. The discrepancy may also raise a credit issue which is not for this Court to deal with, 12 UNREPORTED JUDGMENTS although it does provide material in justification for the somewhat sceptical view which the learned judge took of certain aspects of the plaintiffs case. Before turning finally to the assessment which the learned judge made, it will be helpful to notice other general features of the plaintiff's evidence. I have set out the essential elements of his financial records. His counsel indicated to the learned judge that "Our case is partly that by reason of a slump during the years when the income material which is available began, those are not truly representative." The plaintiff himself agreed that, although Gruzman Pty Ltd had in the past earned large amounts of fees which had paid for the properties which the plaintiff had from time to time acquired, certainly during the financial years 1979, 1980 and 1981 the company was "just about breaking even". But he added an observation which seems inconsistent with substantial earnings having been made prior to 1979: "... all my architectural life prior to the accident and the hit on the head I had made up my mind I was going to go about my practice not to make money but to, if you like, perfect myself to become the most perfect legate (2) ready for the groom." The thrust of the plaintiffs case was not so much that the income years, whose results were tendered, were unrepresentative of his fee earning pattern, but rather that he had confined himself to small buildings over the years while he prepared himself "for the groom", as he himself put it, although the way in which that and similar evidence was given suggests a more active role than the metaphor might suggest. Further, it is clear that, at least from 1983 onwards (and probably before the first of the misadventures) he travelled widely in Europe and the United States. In this context the learned judge concluded that, bearing in mind that the effects of injuries and illness not associated with the motor vehicle accident were still a contributing cause of the plaintiff's inability to work as he had done before, he would still have produced more than he had been able to do and that this deficiency had caused him economic loss. This his Honour finally assessed in the sum of $80,000 on the footing of $20,000 per annum for each of the four years preceding the date of trial. The gross loss of fees the learned judge thought would have been much higher but a deduction of approximately fifty per cent had to be made for overheads and an allowance, of course, for tax. Interest on the $80,000 was $27,000 and the total accrued loss to trial was therefore $170,000. Loveday J assessed damages for diminished earning capacity as amounting to $20,000 per annum for each of the succeeding five years which, discounted at three per cent, required $93,461, from which he subtracted $13,000 approximately for vicissitudes, leaving a final sum of $80,000 for future economic loss. For damages for pain and suffering and the like, $60,000 was awarded together with interest of $5000. For reasons which should by now have become apparent, I do not consider that the defendants can successfully challenge these assessments. The learned judge's findings as to the extent of the plaintiffs diminution of earning capacity and the extent to which injuries and illness unrelated to the motor vehicle accident contributed are, in my opinion, quite unassailable. Taking those findings as a starting point, I consider that the translation into money cannot be regarded as having produced figures which are wholly disproportionate to the loss for which they are intended to compensate. Accordingly, the defendants' appeal must be dismissed. Turning to the cross appeal, I do not think the general attack made upon the awards for past and future economic loss can succeed. I need not repeat all the matters to which I have already referred. As I have indicated it seems to me that URJ CAREY v GRUZMAN (Samuels JA) 13 the findings upon which the assessment of damages was based were not incorrect and, indeed, in some respects I think that they might have been regarded as favourable to the plaintiff. Essentially, the cross appeal depends upon the argument that none of the illnesses or accidents which befell the plaintiff prior to the motor vehicle accident remained a contributing factor in the diminution of earning capacity of which he complained. On this footing, of course, the assessment of damages might have been unduly low. But this was not the basis which his Honour accepted. On the contrary, as I have indicated, he expressly found that the effects of earlier physical misfortunes, in particular the head injury and the resultant brain damage, were potent and continuing detrimental factors. The learned judge did not specify the proportions in which the effects of injuries and illness not associated with the motor vehicle accident and the results of the motor vehicle accident itself, contributed to the plaintiff's overall disability. He said that he was satisfied "that the effect of the motor vehicle accident is a major contributing factor in his work performance or rather, lack of it, in recent years." The way in which that conclusion is framed rather suggests that the learned judge believed that the disabilities unconnected with the motor vehicle accident constituted the basic cause of the plaintiff's inability to work as he had done in the past. Furthermore, the judge, while expressing the view that if the motor vehicle accident had not occurred the plaintiff "would have undertaken more work than he has done", added that this "probably would not have included the large scale buildings he claims he was preparing himself for, but he would have been able to do more small building work and this would have earned him substantial commissions." It follows from this that Loveday J did not accept the plaintiffs claim that uninjured in the motor vehicle accident he would have richly exploited professional opportunities which were lying right at hand. Similarly, the allowance of five years as the period during which damages for future diminished earning capacity were to be calculated, instead of the ten years for which the plaintiff contended, was open on a variety of grounds. There was evidence, for example, that the effect of the brain damage would tend to increase as a feature of the ordinary ageing process. All in all, I am unable to conclude that the damages awarded are beyond the range of a sound discretion, or that they represent, on the plaintiff's side of the ledger, an assessment wholly disproportionate to the damage which the plaintiff sustained. Equally, it was well open to the judge to reject the claim for $90,000 in order to install an inclinator. There are, however, particular matters to which the plaintiff referred and which were said to constitute arithmetical errors or errors of calculation in the result at which the learned judge arrived. First, it is said that the period between the date of the accident and the date of judgment was 5.7 years and not the 4 years which his Honour took. However, I would be reluctant to assume that his Honour intended to allow accrued loss of income over the precise period which lay between the two terminal points of accident and judgment. He may have intended that 4 years rather than a longer period most reasonably represented the loss which he thought should be selected as proper compensation. It is true that he does not comment upon the selection of 4 years rather than a longer period. However, I am not prepared to regard this as an error. Secondly, it is suggested that there was no evidence that the plaintiffs practice had a fifty per cent component for overhead. However, there is evidence that the plaintiff's support staff would amount to three or four students, each paid $300 or $400 a week, apart of course from secretarial assistance. On the figures which his 14 UNREPORTED JUDGMENTS Honour took, this is about fifty per cent of the gross fees which the judge had in contemplation. Thirdly, it is submitted that the tax rate on $40,000 gross per year for the relevant periods was about thirty seven per cent so that if the learned judge was correct to select a figure of $40,000 gross per year, this should have produced a figure net after tax of $25,200 and not $20,000. But the learned judge did not specify precisely the annual amount of taxable income which he had selected as representing the plaintiff's loss. He ultimately allowed $20,000 per annum, which must have been net after tax. He observed that the loss of fees, that is to say, I assume, the loss of gross fees, would have been "very much higher, in the order of $80,000 per annum" and, as I have said, pointed out that from that figure a deduction was necessary of approximately fifty per cent for costs and expenses and added: "And then of course the plaintiff would have been liable for tax on the net income to him from these fees." It is impossible to assume that the figure his Honour had in mind was exactly $40,000 per annum before the deduction of tax and after the deduction of the costs and expenses laid out in earning it. The same answers may be made to the complaint that assuming that it was open to his Honour to take $40,000 per annum as the basis before tax for the calculation of diminished future earning capacity the correct net figure would have been larger had the correct rate of taxation been applied. Once again, the figure of $20,000 is one at which the learned judge arrived having considered the amount of the expenses of the plaintiff's practice and the general nature of his liability for income tax in the area of earnings which the learned judge was contemplating. There is no reason to suppose, however, that these calculations were intended to draw upon precise figures; and, indeed, in the state of the evidence to which I have already referred, it would have been a difficult task to produce calculations of an exact kind. The complaints about the award of interest are, I think, disposed of by similar considerations. I merely add that so far as the selection of a commercial rate of interest is concerned Cullen v Trappell (1980-81) 146 CLR 1 has now been overruled: MBP (SA) Pty Ltd v Gogic 98 ALR 193. I would therefore propose that both the appeal and the cross appeal be dismissed, each with costs. Priestley JA I agree with Samuels JA. Meagher JA I agree with Samuels JA. 1. Appeal dismissed with costs. 2. Cross appeal dismissed with costs. Counsel: Appellant: P ROBERTS Respondent: BJM TOOMEY QC, RJ TONNER Solicitors: Appellant: AUSTRALIAN GOVERNMENT SOLICITOR Respondent: CLAYTON UTZ