GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v BLANUSA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY JJA, and SAMUELS AJA 10 August 1992, 10 August 1992 [1992] NSWCA 78 DAMAGES — quantum — no question of liability. Clarke JA I will ask Justice Handley to give the first judgment. HANDLEY JA This is an appeal by the defendant from a verdict and judgment for a plaintiff in a motor vehicle case. The proceedings arose out of an accident that occurred on 16 September 1985. Liability was admitted and the action proceeded as an assessment. The trial judge awarded the plaintiff damages of $102,095.41, which comprised $2,095.41 for out of pocket expenses and $100,000 for other heads of damage. The other heads of damage, at least as found by the trial Judge, were general damages to cover pain and suffering, past and future, and for loss of earning capacity with a cushion for future unemployment and under employment to the age of fifty five. His Honour had earlier rejected the plaintiff's claim for past economic loss. As to this head of damage, his Honour said: "The plaintiff made a claim for economic loss but I am unable, on such evidence as has been presented, to determine that he has suffered any quantifiable loss. He claimed that he had some documents at home which were not produced which established this loss. He claimed orally to have lost $20,000, but in the absence of any documentary material or other supporting material, I am unable to accept that claim." However, it is clear from earlier findings that his Honour had accepted the plaintiff's evidence that he lost three weeks from work immediately after the accident. It is common ground between the parties that the trial Judge fell into error in awarding a single lump sum for the heads of damage other than out of pocket expenses which he accepted. The appellant has therefore established an appealable error which prima facie entitles this Court to intervene. The next question is whether this Court is in a position to reassess damages or must it remit the action for rehearing in the District Court. The trial Judge accepted the plaintiff's evidence. He said that the plaintiff impressed him as a genuine hardworking man and his findings of fact on the nature and extent of the plaintiffs injuries involved a clear acceptance of his evidence. The trial Judge specifically rejected one attack on the plaintiff's credibility based upon a previous claim he had made on the Government Insurance Office under a sickness and accident policy arising from a problem he had the year before the accident in his right shoulder. Those findings have not been challenged. The trial Judge also accepted the medical evidence called in the plaintiff's case. His Honour said that medical evidence from Dr Benanzio, Dr Bannister and Dr Strinich established to his satisfaction that the plaintiff had degenerative changes to his cervical spine and as a result of the accident, those changes had been 2 UNREPORTED JUDGMENTS aggravated. In addition he had soft tissue injuries affecting his lower spine. He also accepted the evidence of Dr Bannister that the plaintiff ought to confine himself to light work. On the basis of his acceptance of the plaintiffs own evidence and the medical evidence referred to, the trial Judge held that he was satisfied that, as a result of this accident, this man, who previously had no symptoms in his neck and back, became aware of a painful neck and a painful low back. The injury to his neck was an aggravation of a preexisting condition shown in x rays taken shortly after the accident. The injury to his lower back was a soft tissue injury and an entirely new injury. Dr Bannister was of the opinion that the plaintiff's symptoms would persist indefinitely and the trial Judge accepted that opinion. These findings also have not been substantially challenged. Counsel for the respondent, without filing a notice of contention, sought to challenge the decision of the trial Judge, to reject the plaintiffs claim for past economic loss, other than for the three weeks immediately after the accident. The respondent relied upon the trial Judge's findings that since the accident the plaintiff had worked, but with some limitations, that he had become a slower worker and that during his work he frequently suffered from pain and stiffness particularly when bending. I accept the submissions of counsel for the respondent that these findings of pain and disability since the accident, which have caused him to work more slowly, established a probability that the plaintiff did suffer some economic loss prior to the trial. Counsel for the respondent also attempted to establish that his Honour had erred in finding that the plaintiff had failed to establish any quantifiable loss. He sought to base this submission on information contained in the plaintiffs income tax returns for the 1985, 1986, 1987 and 1988 income tax years. While some conclusions can be drawn from these returns as a matter of arithmetic, in my opinion no pattern probative of any loss since the accident can be discerned. A comparison between the plaintiff's receipts from his subcontracting activities for the months of July 1984 and July 1985, August 1984 and August 1985 and September 1984 and September 1985 revealed unexplained and significant variations. The plaintiff's accident occurred on 16 September 1985. However on the plaintiff's own evidence the receipts for that month were almost certainly not affected by the accident, because of delays in receiving payment for work that he did. The plaintiff produced in evidence four orders for bricklaying, one in 1985, one in 1986 and two in 1989. In 1985 the rate shown in the order was $250 per thousand bricks. The 1986 rate was $275 per thousand bricks and the 1989 rate was $450 per thousand bricks. The 1989 rate corresponded with that referred to in a letter admitted into evidence from Westminster Homes Pty Ltd which set out average rates of payment to contract bricklayers for a thousand bricks for the years 1985 to 1990 inclusive. However the 1985 and 1986 rates shown in the orders were significantly lower than the average rates of $300 and $350 referred to in that letter. In these circumstances I have not been persuaded that the trial Judge erred in holding that the plaintiff had not established any quantifiable economic loss for the period prior to the trial other than for the three weeks he was off work immediately after the accident. \ROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v BLANUSA (Clarke JAB In my opinion therefore the respondent has failed to make good the case that the Judge's assessment can be supported upon the basis of an additional award for past economic loss. However there remain the other heads of damage accepted by the trial Judge which have not been challenged by counsel for the appellant. These are general damages and future economic loss. The plaintiff was fifty one at the date of trial which occurred some six years after the accident. The Judge's findings as to the nature of the plaintiff's injuries and the disabilities that he had suffered based on the medical evidence establish that the plaintiff was only able to maintain his earnings as a bricklayer by putting up with significant pain and disability during his working activities. In particular, it is clear that he has continued to work as a bricklayer which involves hard physical work and much bending and lifting, contrary to advice from his own doctors that he should only attempt light physical work. Although the plaintiff has failed to establish any quantifiable economic loss for this six year period, this was because he had continued to work as a bricklayer and has put up with pain and stiffness in his neck and lower back, contrary to medical advice. In other words, his work has caused him additional pain for which a higher allowance for past general damages is appropriate; compensating the plaintiff for the personal cost of his continued working as a bricklayer and offsetting the considerable benefit to the defendant that has resulted from that work. The plaintiff was fifty one at the date of trial and there was no suggestion that he had a reduced life expectancy. The xrays taken shortly after the accident reveal degenerative conditions which the Judge found had been aggravated by the accident. It is clear therefore that the plaintiff will continue to experience the effects of the injury in terms of pain discomfort and reduced mobility for a considerable period in the future. Counsel for the respondent submitted that the sum properly allowable for general damages would be in the range from $40,000 to $60,000. I accept these submissions. So far as future economic loss is concerned, the trial Judge took the view that the plaintiff was unlikely in any event to have worked beyond the age of fifty five. However he found that the plaintiff had lost some earning capacity and he had gone from being someone capable of doing heavy work all the time to someone who should only do light work. The evidence of the plaintiff's income tax return for the 1988 tax year indicates gross earnings, before business and concessional deductions and tax, of $50,812 and the plaintiff's oral evidence was that in the 1989/1990 year he was earning at the rate of $700 to $1,000 gross per week. The Court must evaluate the chances of economic loss coming home to the plaintiff in the future. See Malec v JC Hutton Pty Ltd (1990) 169 CLR 638. The plaintiff's net income after tax was probably of the order of $25,000 to $30,000 a year at the time of trial. Accordingly one can see that the possible allowance for the chance that he would suffer economic loss during the period from age fifty one to age sixty five was potentially quite substantial. In these circumstances the verdict for $100,000 damages found by the trial Judge for general damages and future economic loss has not been shown to be erroneous or outside the range of a sound exercise of the trial Judge's discretion in these matters. 4 UNREPORTED JUDGMENTS The case therefore, in my opinion, is one where the principles of Robinson v Riley (1971) 1 NSWLR 403 should be applied and this Court can be comfortably satisfied that in the result the assessment of the trial Judge has not been shown to be excessive. In these circumstances I would propose that the appeal be dismissed with costs. Clarke JA I agree. Samuels AJA I agree. Clarke JA: The order of the Court will be as Justice Handley has indicated. The costs order will be that the appellant pay the respondent's costs of the appeal from 28 July 1992 taxed on an indemnity basis in addition to the costs incurred before that date, taxed on a party and party basis. Appeal dismissed with costs. Counsel for the Appellant: RC TONNER Instructed by: P ANDRESAKIS Counsel for the Respondent: J KEESING Instructed by: VICKOVICH and ASSOCIATES