GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v NICHOLLS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, HANDLEY JJA and WADDELL AJA 5 December 1990, 6 February 1991 [1991] NSWCA 119 DAMAGES — personal injuries — plaintiff a passenger thrown from swerving vehicle — suffered fracture of right foot — slight permanent injury but likelihood of arthritic degeneration in his fifties — appeal on all grounds — Held: (1) no error of fact on liability; (2) awards for general damages and future economic loss too high — no question of principle. Priestley JA I have read Waddell AJA's reasons in this appeal and adopt his summary of the facts. The opinion I have formed on the basis of that summary is that although the figures assessed by the trial judge for future economic loss and what have been called general damages are high, they are not so out of keeping with my understanding of "current general ideas of fairness and moderation'* as to warrant upholding the appeal. I would dismiss the appeal with costs. (* Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at 125, which this court has regularly held it is condemned to apply.) Handley JA I agree with the reasons for judgment of Waddell AJA and with the orders he has proposed. Waddell AJA The respondent was injured on 21 February 1985 when he fell out ofthe cabin of a Holden utility in which he was a passenger while it was being driven on a property in the Oberon district. In District Court proceedings before Graham DCJ he recovered damages for his injuries. The appellant has appealed on all grounds. Liability. The driver of the utility was William James Artery, who worked at the same factory as the respondent. He was taking his mother to the property. She was sitting in the centre of the bench seat and the respondent next to the passenger door. Mr Artery stopped at the entrance to the property where there was a conversation with the owner who was coming out. The vehicle then proceeded to the house. The driveway was a rough dirttrack. It was uphill to the house and was something over 150m long. The respondent's evidence was that when they stopped at the entrance he thought that perhaps Mrs Artery would be dropped off there and undid his seat belt so that he could get out to let her alight. This did not happen and he did not refasten his seat belt. After the conversation Mr Artery drove the vehicle up the drive at a fairly fast speed and after about 50m made a sharp turn to the left which made him slide against Mrs Artery. He grabbed the dash for support with his left hand and the seat belt with his right and straightened up so as to take his weight away from her. The vehicle then resumed a straight course and proceeded towards a clearing beside the house. It then veered slightly to the left and 2 UNREPORTED JUDGMENTS commenced a hard right hand Uturn. Because of the force of the movement of the vehicle going around the corner he slid hard against the door. Mrs Artery slid across the seat in to him and the next thing he knew he was flat on his back on the ground. His evidence as to why the door opened was that when Mrs Artery hit him, his legs were hard against the door so that his knees were against the door handle. His reconstruction of what must have happened was that his knees must have caused the handle to open. His Honour found that the respondent's injuries had been caused by the negligent driving of Mr Artery in that he had driven at an excessive speed but that the respondent was guilty of contributory negligence in that he had not fastened his seat belt in consequence of which he reduced the damages by 10 per cent The appellant submits that the finding that Mr Artery drove at an excessive speed was against the evidence and the weight of evidence. The evidence of speed was the respondent's estimate of 35 to 40 kph and Mr Artery's estimate of 30 kph. There was conflicting evidence as to how long it took the vehicle to pull up after the respondent fell out. He said about 25 metres, Mr Artery said from 5 to 6 metres, and his mother said the length of the vehicle. Other relevant evidence was as to the rough state of the track, the sharpness of the left hand turn, the respondent said 90 and Mr Artery, 65, and that the track was only 10 to 12 feet wide. It was common ground that when the vehicle turned right it was for the purpose of making a Uturn. The evidence was that the vehicle had not slowed down after taking the left hand corner. His Honour accepted the evidence of the respondent as being reliable and said that he struck him as being a witness of truth. He commented that his evidence appeared to be consistent internally and consistent with the histories which he had given in the past except on a claim form for medical expenses completed by him in his own handswriting whilst in Dudley Hospital in 1987. In that form he wrote a brief description of the accident which included this: "Ute entered driveway went round left hand bend at which point I grabbed door handle to avoid shoving other passenger. Proceeded further up drive where on right hand Uturn was started other passenger's weight went on to me causing excessive weight on me and I went out the door." The respondent in cross-examination conceded that it was his description but said that he did not remember grabbing the door handle. A diagram of the door fittings drawn by the respondent was tendered in evidence. The vehicle was a 1979 model. According to the diagram and the evidence the handle was of a flat type which required to be pulled upwards to release the door lock and was forward of and below the window winder. His Honour regarded the credit of the plaintiff as not having been shaken by the document. His Honour concluded that the vehicle was driven at an excessive speed as Mr Artery commenced to make the right hand turn, that the respondent shifted to the left as did Mrs Artery, and that his knee came into contact with the door handle causing it to open, that the door itself opened and the momentum was sufficient, the weight of Mrs Artery behind it, to expel the plaintiff on to the roadway thus causing the injury to his ankle. In my opinion there was clearly evidence upon which his Honour was entitled to reach this conclusion, particularly having regard to the fact that he accepted the respondent as a reliable witness. It should, I think, be emphasised that in a manoeuvre of the kind which resulted in the respondent's injuries speed does not have to be very high in order to be excessive, particularly when regard is had to the evidence of the nature of the track on which the vehicle was travelling. The \ROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v NICHOLLS (Wadde AJA) fact that the plaintiff was expelled from the vehicle by his own and Mrs Artery's momentum is itself a factor pointing to excessive speed. Contributory negligence. His Honour held that the respondent's failure to have his seat belt fastened was negligent and that it contributed to his injuries to an amount of 10 per cent. The appellant submits that an allowance of 20 per cent should have been made. His Honour compared the respective responsibilities of Mr Artery and the respondent in relation to the injury caused to the latter. He pointed out that Mr Artery was, to the knowledge of the respondent, familiar with the driveway and that he was entitled to expect that he would exercise care in his use of it and would drive at an appropriate speed. The evidence of Mrs Artery indicates that the land between the house and the roadway was open. There was no likelihood of collision with another vehicle. In these circumstances the respondent was entitled to regard the risk of injury which might be prevented by fastening his seat belt as very slight. The respondent was entitled to maintain this expectation up to the time when Mr Artery negotiated the left hand turn. By the time he might have had any apprehension of danger it was too late to do any more than he did, namely to brace himself on the dashboard with his left hand and grab hold of the seat belt with his right. In these circumstances, there is, in my opinion, no reason to disturb his Honour's finding that the respondent was, to the extent of 10 per cent, responsible for his injuries. The appellant further submits that, having regard to the written statement, the respondent was guilty of contributory negligence in that, by grabbing the door handle in the circumstances mentioned in his written description of the accident referred to above, he had probably opened the door which, when the vehicle turned to the right, permitted him to fall out of the vehicle. It is submitted that his Honour should have accepted as correct this written description of the accident and that it was not open to him to find, as he did, that the door had opened because the respondent's knee involuntarily came into contact with the handle. In my opinion this submission should be rejected. His Honour said: "Having regard to the diagram which he prepared and to my general acceptance of his reliability as a witness, it is more likely that the activation of the door catch or handle was due to the (respondent's) knee rather than to his hand." This conclusion was, in my opinion, well open to his Honour on the evidence. It negatives any contributory negligence in this respect. Damages. His Honour made an award of $40,000 for general damages and an award for diminution of earning capacity of $30,000. There was no dispute as to past economic loss in the sum of $6,245. The appellant submits that both the former sums are excessive. The respondent was born on 2 January 1963 and thus at the time of the accident was twentytwo. He was single but living with a girlfriend. He was a carpenter by trade, having finished a course at Forster at the end of 1984. After that he moved from Forster to Oberon "for a new life", not being interested in the building industry at that stage. At the time of the accident he worked at a mill belonging to CSR as a glue mixer in the manufacture of pineboard. As the result of the accident he suffered a displaced fracture of the right foot which caused him very considerable pain. He was taken by ambulance to Oberon District Hospital. On examination he had a grossly swollen right ankle. Dr O'Keefe, an orthopaedic surgeon, performed a closed reduction in plaster and 4 UNREPORTED JUDGMENTS admitted him to the hospital. On 26 February 1985 he performed an open reduction of the ankle fracture and after the sutures were removed the respondent was placed in a below knee walking plaster and he was discharged. On 20 May Dr O' Keefe found that he had an excellent range of movement and very minimal pain and he certified him fit for normal duties as of that date. The respondent was in plaster for six weeks and during this period his leg was very painful and he was virtually immobilised. After removal of the plaster he had physiotherapy for four weeks. He returned to CSR in a different and less onerous capacity and at a slightly lower hourly rate. On return to work he found that he was slow and unsteady and had to be very careful not to fall. He was unable to work overtime. His other activities were reduced. He was not able to play sport or chop wood. His leg got tired after work and was usually stiff of a morning. On 3 April 1986 Dr O'Keefe operated on the ankle to remove the plate and screws which had been inserted to reduce the fracture which was in two parts. He found the parts to be clinically united and the range of movement to be excellent. He considered that the respondent could return to his preinjury occupation from the following 1 May. The respondent finished up with CSR Pineboards in July 1987 and for four months was employed as a casual barman at the Oberon Golf Club earning approximately $100 to $150 a week. On 31 August 1987 the respondent consulted Dr O'Keefe whom he told that he had had to leave work at CSR because of pain in his ankle which was aggravated by the cold and by walking about on hard concrete floors. He had been taking an antiinflammatory medication. An xray showed a comminuted ununited fracture. Dr O'Keefe assessed his residual disability on the order of 20 per cent of the use of his right lower limb. On 9 October 1987 he operated to remove the loose fragment. On examination on 2 November Dr O'Keefe considered that, as a result of the surgical treatment, the permanent disability was in the order of 10 per cent and the respondent told him that the operation had fixed most of his pain. He expressed the view that there was a likelihood of arthritic degeneration which would not occur for another twentyfive to thirty years. The operation was done at Dudley Private Hospital. The respondent was off work for four weeks. On 16 August 1988 the respondent consulted Dr Ostinga, an orthopaedic surgeon, on the referral of another doctor. He presented with complaints of stiffness towards the end of the day in his ankle and that he had to be careful on uneven ground and with what he lifted. He said that his ankle felt tight and aching at the end of the day and that it swelled. On examination Dr Ostinga found a marked swelling with extremely localised point tenderness correlating with a small piece of bone shown on an xray which demonstrated nonunion. He advised that the respondent's symptoms might be improved by removing that piece of bone which would require six days in hospital and four or five weeks off work. He concluded that at the time the respondent had probably suffered 10 to 15 per cent loss of useful function, mainly contributed to by pain. The evidence as to the respondent's employment history after working at the Oberon Golf Club is incomplete. It appears that he did some carpentering work at some stage and found that he was unable to crouch or kneel for a long period and could not move around a building site quickly and was very cautious in case he had a fall or had to lean heavily on his left leg. At the trial the respondent was unemployed but he did not suggest that he was out of work due to his ankle injury. He said that he would have to get a job off his feet or not continuously on his feet for long periods of time because his leg aches if he stands on concrete all \ROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v NICHOLLS (Waddei AJA) day or just stands up all day or walks around all day it swells up a little and is painful. He could do carpentry work but would prefer something not so strenuous and did not wish to run the risk of breaking the ankle again by doing building work. As a result of his injuries he was not able to engage in sporting activities which he enjoyed before the accident when he played football and squash, or in other activities such as wood chopping. In relation to general damages his Honour took into account the possibility that the plaintiff might need the operation mentioned by Dr Ostinga and the various disabilities which have been mentioned above. He said: "The present level of disability is to a large extent a matter of annoyance rather than a significant disability to the plaintiff. It is, however, one which is likely to be present when he carries out work of a kind for which he is qualified, that is, carpentry work or indeed any other work involving standing or walking such as the labouring type work which he was performing for two years after the accident (that is at CSR). " He also accepted the evidence from Dr O' Keefe which was to the effect that in his mid fifties the respondent faced a likelihood of arthritis, a possibility confirmed by Dr Ostinga. He assessed general damages in the sum of $40,000. It is submitted for the appellant that this sum is excessive having regard to the disabilities as described by Dr O' Keefe and Dr Ostinga. None of the doctors gave oral evidence but their reports were tendered. In the submissions for the respondent emphasis is placed upon the fact that the respondent was still a relatively young man at the time of the accident and was left with a disability in the right leg of 10 to 15 per cent and was likely to develop osteoarthritis in the right ankle in later life. These are, I think, important matters and it is to be noted that the award made by his Honour includes an allowance for a further operation which would involve some six weeks or so away from work as well as the pain and discomfort of the procedure. Notwithstanding these matters, it is my opinion that the award was outside a proper discriminatory range having regard to the nature and seriousness of the injury and of the continuing disability. I would award the sum of $30,000. His Honour made an award of $30,000 for diminution of earning capacity which he termed his future economic loss. He said: "Tt is necessary, in my view, to make allowance for future economic loss on the basis of a continuing minor disability in his right ankle mainly exhibiting itself by way of pain which, whilst not physically preventing him from carrying out labouring or carpentry work, will cause him to be more selective about the forms of employment which he undertakes, about the hours of employment and about the speed at which he exerts himself in such employment." He also took into account what he termed "'a second component" in future economic loss and that was the risk of arthritic degeneration in later life. He said that, having regard to these two components, it was necessary to provide more than a merely nominal amount to compensate the respondent for his loss of earning capacity in the future. It is submitted for the appellant that, given the absence of any evidence as to future loss of wages or loss of opportunities of employment, there was no material upon which his Honour could make a separate award for diminution of earning capacity. If any allowance is justified it should have been included into the award of general damages. This may be so but, nonetheless, it is convenient to consider this head of damage separately. But, of course, the fact that economic 6 UNREPORTED JUDGMENTS necessity might oblige the respondent to work to an extent which causes him pain or discomfort is a matter to be compensated for by general damages and not under this heading and his Honour took it into account. It is submitted for the respondent that his working history shows that he was suited for carpentry or other physical work only and that as a result of his disabilities he is no longer the man he was before the injury and that, taking into account his training and work history, it is proper to allow more than a merely nominal amount. The problem is that there is virtually no material upon which to base a rational assessment of likely economic loss. The figure awarded by his Honour represents, according to counsel for the respondent, the present value of approximately $33 per week over the remainder of his working life discounted at 5 per cent. This represents somewhat less than 10 per cent of what the respondent might earn in full time employment. In my opinion, the material before the Court cannot sustain the award made by his Honour. Some award is, undoubtedly, justified as compensation for the possibility that in the future the respondent might find himself out of work because the only jobs available are ones which his disabilities preclude him from doing or suffer loss because he is not able to work overtime which is available or because he is obliged to take lower paid employment because his disability precludes him from taking available higher paid employment. There is no evidence before the Court and no submissions which enable such a sum to be assessed in any rational fashion. Accordingly, the Court must do the best it can. In my opinion the sum of $30,000 is too high and there should be substituted for it the sum of $20,000. The damages to which the respondent is entitled are as follows: Out of pocket expenses $3,622.60 Past economic loss 6,245.00 Interest thereon 3,497.20 General damages 30,000.00 Loss of future earning capacity 20,000.00 $63,364.80 Reduction for contributory negligence: 10 per cent 6,336.48 $57,028.32 The appeal should be allowed and the verdict set aside and there should be substituted a verdict for $57,028 as at 28 May 1989, the date of the original judgment. The respondent should have a certificate under the Suitors' Fund Act. Appeal allowed. Verdict of Graham DCJ set aside. Verdict for the plaintiff for $57,028 as at 28 May 1989. Respondent to have a certificate under the Suitors' Fund Act RYNE Counsel for the Appellant: CP Crittle Solicitors for the Appellant: AO Ellison and Co \ROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v NICHOLLS (Waddell AJA) Counsel for the Respondent: MF McDermott Solicitors for the Respondent: Bowman and MacKenzie