OLDS v THE NOMINAL DEFENDANT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY JJA and SAMUELS AJA 10 AUGUST 1992, 10 August 1992 [1992] NSWCA 174 DAMAGES — QUANTUM — NO QUESTION OF PRINCIPLE Clarke JA I will ask Justice Samuels to give the first judgment. Samuels AJA On 31 January 1984 the plaintiff, the present appellant, was involved, at the age of thirty five, in a motor vehicle accident in which he sustained the following injuries: an injury to the left wrist involving fractures of the radius and ulna; an injury to the lumbar spine which apparently affected the disc at the L4-5 level; and an open injury to the left knee involving what was described as a division of the tendon of the patella and other damage to the ligaments. The medical history, and indeed the principal events which are relevant to assessing the appellant's damages, are set out in great detail in a chronology which was handed up at the trial, without objection. It was not marked as an exhibit, but the lack of objection presumably denotes that there was no dispute about the accuracy of the material set out in it. Accordingly I will annex to these reasons a copy of that chronology. Liability was disputed at the trial but ultimately resolved by Judge Levine in the appellant's favour. The learned judge gave judgment assessing the damages in the total sum of $244,367.25, made up as follows: damages for pain and suffering $45,000, interest thereon $10,000; out of pocket expenses $15,271.25; past economic loss including interest $106,096; and damages for diminished earning capacity $68,000. In this appeal the appellant contends that the assessment of damages for pain and suffering and the like and for diminished earning capacity were inadequate and represented an erroneous estimate of the damage which the appellant has sustained. At the trial the appellant presented with continuing complaints of pain and disability, with limitation of movement and power in the left arm and wrist, in the left knee and in the low back. He could not stand or sit for prolonged periods. He slept badly. He had scarring and had been subject to bouts of depression. It should be mentioned that, in all, the appellant was subjected to surgery on seven occasions, and for that purpose was admitted to hospital on either five or six occasions. Four and a half years after the accident he was finally admitted to hospital for the last procedure. Hence during that period he was receiving treatment, both of a diagnostic and of a more therapeutic kind. The learned judge appears to have accepted an opinion expressed by Professor Ehrlich, one of the medical practitioners who gave written evidence, to this effect: - "There can be no real dispute that this man has had several major injuries with very real consequences." 2 UNREPORTED JUDGMENTS The appellant was a butcher by trade and had exercised that occupation, finally purchasing a butchery business of his own which, however, failed and brought the plaintiff into bankruptcy. This was after the accident had occurred. Earlier - that is before the accident - the plaintiff had become addicted to drugs and had undertaken a methadone programme and had also been twice, I think, convicted of what is commonly known as revealing the prescribed concentration of alcohol. These matters are not of any relevance save as exhibiting some indication of the appellant's earning capacity, and the extent to which he was and is capable of working steadily without interruptions of the self-imposed kind. The appellant briefly worked in the insurance business before the accident. I would judge from the written record that he had not acquired any extensive skills. After the accident he had worked as a doorman for a period, but with some difficulty. The learned judge, having made the comment to which I have already referred, went on to say "It is clear that the plaintiff will be unable to work on a full time basis." However, no doubt impressed by the appellant's attitude which was constructive notwithstanding his bouts of depression, his Honour concluded that his experience as a doorman and a clerical worker - I take this to be a reference to his spell in the insurance business would provide the plaintiff with opportunities which he could exploit in lieu of his trade as a butcher, which his Honour expressly found he would be unable to carry on. Professor Ehrlich, in addition to the comment which I have quoted, was of the opinion that there was no reason to suppose that the appellant could not undertake a variety of employment. This seems at odds with the views of other doctors. A Dr John Bentivoglio, for example, in a report dated 20 August 1990 - and this is very shortly before the trial which took place in September of that year - recites that the appellant had not been capable of resuming work and expressed the view that he would continue to have low back symptoms "in the near and distant future". Dr Panjratan was of the opinion that his pain, apart from limitations of movement, which might be more mechanically determined, was "bad enough for him to be unable to get back to the work-force." Unfortunately, if I may respectfully say so, the learned judge does not specifically discriminate among these somewhat different views; but finds that he could never work as a butcher again, and, indeed, could not work full time again. The award wage for a butcher was an amount of $290 net per week. This is the figure which the learned judge took in order to compute the loss of earnings accrued to trial. But then, as so often happens in these cases, apparently at the moment of trial a metamorphosis of a powerful kind occurred. The appellant was at once translated from someone who was losing $290 per week into someone whose earning capacity was to be assessed at $200 a week, leaving a deficit of $90. It is that figure which the learned judge then took as the basis for assessing future diminished earning capacity. Bearing in mind that we are to intervene only if there is a clear discrepancy between the learned judge's assessment and what we think the evidence in the case requires, I am of the opinion that Judge Levine, with all respect, fell into error in two respects. First, I think that to allow $45,000 for pain and suffering and the like, which is not merely for the six or so years which had elapsed, much of which was spent in undergoing medical treatment and spending time in hospital, but for the future also, which is likely to be accompanied by a not inconsiderable degree of pain, was quite inadequate. In my view, and in this I URJ OLDS v THE NOMINAL DEFENDANT (Handley JA) 3 entirely agree with Mr Petty's helpful submissions, $75,000 is a proper figure, of which I would allot $40,000 to the past and $35,000 to the future. As to diminished earning capacity, the starting point in my mind is that one is considering a man who will never be a full time worker, who cannot pursue his 5 trade, and who will have to rely much more upon work as that of a doorman, which is not, one would think, a very considerable economic prop, or upon some minor experience as a clerk in an insurance company. It is true that in cross examination the appellant conceded, with optimism I would think, that at his age it is possible that he might go back and take a 10 computer course and acquire skills of that sort. I would think this does the plaintiff credit in a sense but I do not think it is a very realistic prospect. I would adopt the figure put by Mr Petty and assess the appellant's lost earning capacity at fifty per cent of the butcher's award wage of $290. Certainly there is room in he evidence for a larger figure than this, on the basis of evidence given by Mr 15 Court who for a time managed the appellant's shop after the accident, but one must take account of the other matters which have been mentioned, and they represent a discount which brings back the figure of $290 to $145. That loss, discounted to age sixty five and with the deduction of the conventional fifteen per cent for vicissitudes, provides an amount of $110.543. 20 Accordingly the components of the assessment which I would substitute are these: for economic loss accrued to trial, including interest, $106,096; diminished earning capacity for the future $110,543; pain and suffering $75,000; interest on the past component rounded off, $5,000; and out of pockets $15,271, a total of $311,910. 25 Therefore I would propose the appeal be allowed, that the judgment below be set aside, and in lieu thereof there be substituted judgment for the appellant in the sum of $311,910 to date from 28 September 1990 with costs. The respondent must pay the appellant's costs of the appeal. 30 Clarke JA I agree. Handley JA I also agree. Clarke JA: The order of the Court will be as Justice Samuels proposed. CHRONOLOGY 30 March 1949 plaintiff's date of birth (age 41). 35 5 December 1979 plaintiff commences Methadone program. 14 Q-T, 55C 11 May 1981 plaintiff disqualified for 3 years upon conviction for PCA. 35L 1 August 1983 butchery business purchased. 14M 1st ADMISSION 31 January 1984 subject accident - plaintiff conveyed to Mt Druitt Hospital - 40 repair of patella tendon of left knee, left forearm fracture reduced and immobilised under general anaesthesia. 145 K-P 7 February 1984 compression plating of left radius. 145 S February 1984 plaintiff discharged. 146 D (left arm and left leg immobilised in plaster) 16 T 45 20 February 1984 plaintiff examined by Dr Bruce, orthopaedic surgeon. 21 February 1984 plaintiff consults LMO Dr Gayed. 152 G 27 February 1984 review by Dr Bruce. 12 March 1984 review by Dr Bruce. 16 March 1984 plaintiff commences physiotherapy at Mt Druitt Hospital 50 (6 treatments to 28th March 1984) 11 April 1984 reviewed by Dr Bruce - plaster removed. 4 UNREPORTED JUDGMENTS 17 July 1984 x-ray of lumbo-sacral spine. 185 7th August 1984 plaintiff commences to receive sickness benefits. 18 October 1984 review by Dr Bruce. 25 October 1984 review by Dr Bruce. 10 November 1984 partnership dissolved. 213 S 20 November 1984 plaintiff commences work as a casual doorman. 19 B-N 21 December 1984 plaintiff examined by Dr Mansfield (locum for Dr Sengupta) on referral from Dr Gayed - physiotherapy advised. 156 27 February 1985 review by Dr Bruce. 188 2 May 1985 plaintiff files debtor's petition - bankrupt. 18 T 6 May 1985 review by Dr Sengupta. 157-158 24 May 1985 review by Dr Sengupta. 18 June 1985 plaintiff ceases work as a doorman (having earned $3,361.62 gross). 19 B-N 2nd ADMISSION 27 June 1985 plaintiff admitted to Minchinbury Community Hospital for arthroscopy/ 147 menisectomy of left knee by Dr Sengupta. 28 June 1985 plaintiff discharged. 17 February 1986 plaintiff admitted to 148, 20L Minchinbury Community Hospital for removal of plate from left forearm by Dr Sengupta. 19 February 1986 plaintiff discharged. 21 July 1986 review by Dr Sengupta - 159 TENS machine advised for forearm. 3 August 1986 plaintiff applies for invalid pension. 22 September 1986 review by Dr Sengupta. 16 October 1986 application for pension refused. 19 March 1987 plaintiff commences further physiotherapy (24 treatments in 1987). 19 June 1987 plaintiff examined by Dr Panjratan, 166 Q orthopaedic surgeon. 13 July 1987 review by Dr Panjratan. 16 July 1987 myelogram - large left L4-5 disc prolapse. 17 July 1987 review by Dr Panjratan. 3rd ADMISSION 20 July 1987 plaintiff admitted to Hawkesbury 149 Hospital for laminectomy at L4-5 level. 25 July 1987 plaintiff discharged. 4th ADMISSION 14 October 1987 plaintiff admitted to Guildford Heights 150 Private Hospital for laminectomy at L4-5 level. 19 October 1987 plaintiff discharged. 26 November 1987 Social Security Appeal Tribunal allows appeal and recommends invalid pension. 15 February 1988 further myelogram and CT scan - 187 same as before. 23 May 1988 plaintiff examined by Dr J Segelov, neurosurgeon, on referral from Dr Panjratan. 7 July 1988 plaintiff examined by Dr Bentivoglio, 160 orthopaedic surgeon, on referral from LMO. 25 July 1988 plaintiff examined by Dr M. R. Fearnside, neurosurgeon, on referral from LMO.- exploratory laminectomy advised. 168-169 5th ADMISSION URJ OLDS v THE NOMINAL DEFENDANT (Handley JA) 5 18 August 1988 plaintiff admitted to Castlewood Private Hospital for exploration of L4-5 area and excision of scar tissue around left LS nerve root. 151, 162 C-F 2 August 1988 plaintiff discharged. 5 3 November 1988 further physiotherapy treatment. 2 March 1989 review by Dr Bentivoglio - plaintiff attends Sydney Pain Management Centre. 21 U 6 June 1989 further physiotherapy commences. 18 October 1989 review by Dr Bentivoglio. 10 22 November 1989 review by Dr Bentivoglio. 28 June 1990 last examination by Dr Bentivoglio. 163 I ORDERS 1. Appeal allowed. 15 2. The judgment below is set aside, and in lieu thereof there is to be substituted judgment for the appellant in the sum of $311,910 to date from 28 September 1990 with costs. 3. The respondent must pay the appellant's costs of the appeal. 20 Counsel for the Appellant: G PETTY Counsel for the Respondent: RC TONNER Solicitors for the Appellant: O7 BRIEN and BYRNE, PENRITH 25 Solicitors for the Respondent: PAUL ANDRESAKIS, PARRAMATTA