FLETCHER v LAMOND SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and SHELLER JJA 31 March 1992, 31 March 1992 [1992] NSWCA 69 APPEAL from District Court — Motor vehicle accident — Whether damages excessive — No issue of principle — Judgment amended by Court; otherwise appeal dismissed. Mahoney JA The plaintiff in this proceeding was injured in a motor vehicle accident on 24 September 1982. She was then twenty years of age. On 14 March 1991 Acting Judge Dent gave judgment for her in the claim against the defendant, in a case where liability was admitted, in the sum of $340,810.65. An appeal has been brought against that judgment on the ground that certain aspects of the award are excessive. The facts are not significantly in dispute. They were set out in the learned judge's judgment as follows: "The motor cycle struck another motor vehicle and the plaintiff was propelled from this impact, and recalls thereafter being in the gutter in excruciating pain, with her right leg bent. She was taken by ambulance to the St George Hospital. Her injury of significance was a fracture of both bones of her right leg and dislocation in the ankle joint itself. This was treated by a closed reduction procedure and plaster fixation. Hospitalisation extended for five days, and the plaintiff was discharged home on crutches. The plaintiff was twenty at the time. The injury to the leg was a complex one, and I quote from the report of the plaintiff's treating orthopaedist, Dr JK Ellis, of 8 November 1982: "The x-rays taken at the time and since show that she had quite a nasty injury. The talus was moved laterally in the ankle mortice about 1 cm; this means that both the medial ligament of the ankle and the thick fibrous ligament of the inferior tibio-fibular joint have been ruptured. The fibula itself has been displaced slightly upwards and laterally.'" The learned judge, upon the basis of the findings of fact as he made them, said this: "T find, on the evidence presented, that the plaintiff faces progressive pain and disability in her right ankle and that she will come to fusion of the ankle within ten years of this date, replacing one form of disability with another. I find that the ten years or less will be a picture of increasing pain and restriction of natural agility, until her undoubted stoic tolerance is overcome. His Honour referred to the nature of her disability further and said: "T am satisfied that the earnings she has achieved since this accident represent her maximum earning potential in that period, and to that extent my task is the easier. What, but for the accident, she would have achieved is somewhat more difficult to grapple with, but my approach must be that, subject to vicissitudes, her past would have been one of good earnings as a superior performer in her chosen field. Her references in evidence are glowing references." 2 UNREPORTED JUDGMENTS The only matters pressed on appeal for the appellant were three. Objection was taken to the amounts included in the judgment for interest, for future economic loss and for general damages. Mr Petty submitted a short but forceful argument in relation to each of these and I shall deal with them in turn. In order to understand the nature of the judgment given and the impact made upon these components it is necessary to refer to the particular components of the judgment which, as I have said, total $340,810.65. The learned judge awarded, for past economic loss, $45,000; interest on that amount of $22,780; future economic loss, loss of earning capacity $160,000; general damages $100,000; interest on that amount $8,500; and agreed out-of-pocket expenses $4,530.65. The first matter the subject of appeal is the interest components included in the judgment being the amounts of $22,780 and $8,500. It is agreed that a reduction should be made in relation to the interest components involved. It is agreed that, for reasons to which I need not refer, the amounts in question should be for interest on her past component of general damages $4,250, and interest on past economic loss, $21,088. This results in an overall reduction, as I understand the matter, of some $5,942 or thereabouts. That amount should, by agreement, be taken from the judgment. (Counsel will check the particular figures so that the form of the judgment which the court will pronounce will be an agreed sum in that regard). I go now to future economic loss. The position, as the learned judge stated it, is again not seriously in contest. The basic facts referred to have not been contested. It is the inferences from those facts and the predictions to be made from them which are in doubt. The fact is that the plaintiff has been, as the learned judge said in his judgment, markedly reduced in her earning power. It was agreed at the trial that uninjured she would have been earning, as at the date of the trial, in the occupation that she had followed, namely, in the catering area, something in the order of $590 per week net. The learned judge concluded that because of her injuries and the effect of them upon her she would not be able to earn those amounts. His conclusion was, in general, that her capacity had been reduced by something more than one third. In order to understand the approach which the learned judge took, or probably took, to the assessment of future economic loss it is necessary to refer briefly to the difficulties from which she suffers. As I have indicated in the passages which I have cited from his Honour's judgment, she has significant pain in her right ankle and that pain, to the extent referred to in the evidence, radiates to other parts of her body. It may be, to some extent, this pain is referred into the right hip. It is not necessary to pursue that aspect of the matter. But the amount of pain has been substantial. The result of the pain and her disabilities has been that she has moved from place to place and from occupation to occupation and has suffered periods of unemployment up to the date of trial. This was reflected in the award which the learned judge made for past economic loss of $45,000. The difficulty is that her pain is increasing. She has had in mind - and I put the matter generally - work in the catering industry and has looked to an occupation as a chef or generally in the hospitality industry. This work has involved significant standing and the effect of that upon her injured leg is that it produces more pain. The pain is an incident of the amount of work she does to the extent to which the learned judge referred in the passages which I have cited. URJ FLETCHER v LAMOND (Mahoney JA) 3 The difficulty that the plaintiff has been faced with is that if she continues on in the same way it will be necessary for her either to continue to work intermittently or to find some other job which is capable of being done by her in her present condition. The medical prognosis is that the pain will increase to such an extent that at the end of about ten years she will be required to undergo an arthrodesis which will freeze portion of the ankle. The effect of this upon her leg will be to remove, as it has been put, a greater part of the pain but it will leave her with a disability which has been assessed by one doctor as about thirty per cent of the efficient use of the right leg and by another doctor as about forty per cent of the efficient use of the right foot. I draw those inferences from the reports of Dr Searle and Dr van der Walt to which the court was referred. The plaintiff has, therefore, been faced with a decision as to her future activities and how she should structure the rest of her working life. She has determined to undertake a course at a hospitality training institute full time lasting for about two and a half years. Her decision to do so has been accepted as reasonable. She hopes that at the end of that period she will have a qualification and a training which will enable her to obtain work which presumably otherwise she would not be able to do. The learned judge concluded that the result of her working full time in that activity would be, of course, a loss of income. He concluded, however, that this loss would be, or would be to some extent, mitigated by income that she could earn on working out of hours during that period. I draw that inference from the evidence and from the figures which have been placed before the court. The learned judge's conclusion was that as a result of undertaking that course the plaintiff would suffer a loss of income of the order of $40,000-$50,000. It is to be taken into account also, I should add, that when the arthrodesis is undertaken she will have a period of some four months off work with consequent loss of income. Following the retraining period she will, as I have inferred, be in a better position to earn income than untrained she would have been. I make that inference in favour of the appellant/defendant. It seems to me to be an appropriate inference, otherwise there would have been little or no purpose undertaking the training that she has proposed. She has referred in the evidence to this, although only briefly. In her evidence-in-chief she was asked about the prospects of obtaining a job whilst at the TAFE College and whether she would be able to handle the job. She said this: "Tt is hard to say at the moment because I don't know how demanding the course is going to be. I would say that it would be great if I could get weekend work and have a bit of money coming in." She was asked as to what kind of employment she hoped to get and she referred to the possibility of having "something in hospitality management where I don't have to be on my feet for as many hours". The evidence as to what she may do at the end of the retraining period is, as Mr Petty has indicated, meagre to the extent of being vague, but I think it is proper to draw some kind of inference that she will be more properly fit for work at that particular time. However, she will obviously be incapacitated in the undertaking of whatever work she will do. 4 UNREPORTED JUDGMENTS During the balance of the seven years before the arthrodesis she will have difficulty working and will be affected by the pain and disabilities. After the arthrodesis operation she will have a leg which is disabled to the extent referred to by the doctors and to which I have made reference and, I infer, she will continue to have some degree of pain involved in working and the like. The question, therefore, is how one is to assess the proper sum for compensation for the diminution in her economic activity in the future. Mr Petty's objection essentially was that, as he submitted, what the learned judge had done had been to assume a one third general loss of income over the whole of her future life, to apply that one third figure generally to the sum of $590 per week loss to which I have referred, and to arrive generally at the figure of $160,000. His submission was that this was the way in which the learned judge had arrived at this sum and that that was a wrong approach to the assessment of future economic loss. I am not sure that that is the way in which the learned judge arrived at the amount that he awarded for future economic loss. The learned judge, as I have said, referred in terms to the fact that the plaintiff was apt to suffer a loss because of the retraining, of some $40-$50,000. He then referred to the plaintiff's diminution in earning capacity of one third or more. It was following these references that he arrived at the assessment of $160,000. If one took the figure of $110,000 to $120,000 for the period from the end of the retraining period to the plaintiff's age of sixty, an assumed age for ceasing to work, the amount involved as weekly loss postulated for conclusion would be of the order of $120 per week, more or less. It may well be, I think, that the learned judge approached the matter on that basis. At least it may well be, I think, that he used that approach as a check upon what otherwise would be his calculation of the loss. Having regard to the vagueness of the evidence - and I think perhaps the necessary vagueness of it - I am not satisfied that the amount awarded is out of proportion to what would be the proper sum to be awarded for this loss. I think, testing the matter in the two ways to which reference has been made, a figure of $160,000 for future loss, upon the assumption which the learned judge made as to the effect of the accident upon the plaintiff's earning capacity, is not beyond a sound assessment of compensation for this component. I would, therefore, not accept the submissions made for the appellant in this regard. I go now to the award of $100,000 for general damages. The plaintiff suffers, as a result of the accident, not merely physical loss in respect of the use of the ankle; she will suffer for the next ten years pain of a considerable measure. The learned judge referred in his judgment to lower leg pain which was constantly variable, reflecting the stress of daily use. The result of it has been, for example, that to sleep in relevant comfort she must, as the learned judge said, lie on the floor. She can ambulate carefully but, in her words, she has to think about her every step and her gait is disturbed and she has calluses on the bottom of her right foot. She can make limited use of fashion use. The judge accepted that she suffers anxiety and depression from the knowledge of her chosen career of a master chef having been lost. The learned judge said her present physical limits frustrate her and cause her to become angry and short tempered. She has lost her sense of security of the profession she had chosen. This will continue at least during the period of ten years to which I have referred. The personal restrictions placed on her by way of suffering loss of capacity and the like were referred to in the judgment. Following URJ FLETCHER v LAMOND (Sheller JA) 5 the arthrodesis I shall accept that she will have lost most of the pain but not all of it and that she will have suffered the loss of the efficient use of her right leg and foot, of the order to which I have referred. All of these matters are matters of considerable seriousness. Even after the arthrodesis she will have a limp and the effect of it upon her and the structure of her body and generally her posture is problematical. Taking all of those matters into account, the question is whether $100,000 is beyond the range of his Honour's sound discretionary judgment. I would say at once $100,000 is rather more than I would myself have given had I been assessing the damages but that, of course, is not the issue before this Court. This Court may interfere only if - to state the matter in conventional terms - the judge's assessment of pain and suffering is beyond the range available to a sound discretionary judgment in the circumstances of this case. Taking account of what has been said by the High Court in this regard, I do not think that in this case the court may interfere. I think that the sum, although high - perhaps at the limit of the higher range - is not one with which properly the court may interfere. The result, therefore, in my opinion is that the reduction to be made in the judgment is the reduction only of an amount which I assess to be $5,942 in respect of the agreed reduction of interest. On this basis the judgment that should have been given is $334,868.65 and, subject to what I shall say, I propose that that be substituted. I therefore propose that the judgment be set aside and there be substituted a judgment of $334,868.65, that judgment to take effect from 14 March 1991, the date of the original judgment. Priestley JA I agree with the orders proposed by Mahoney JA for the reasons which he has given in suggesting that they be made. Sheller JA I agree with Mahoney JA. Mahoney JA: The order that I make is for the substitution of the judgment of $334,868.65 for the judgment below as from 14 March 1991; the appellant to pay the respondent's costs of the appeal. 1. Judgment below set aside. 2. In lieu judgment substituted in the sum of $334,868.65, such judgment to take effect as from 14 March 1991. 3. Appellant to pay the respondent's costs of the appeal. Counsel for the appellant: GR Petty Solicitors for the appellant: Government Insurance Office Counsel for the respondent: MS Willmott Solicitors for the respondent: Davis Cohen Hyde Page