GLORIA CLARK v GOVERNMENT INSURANCE OFFICE OF NSW SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA, MEAGHER JA and HANDLEY JA 1 November 1993 [1993] NSWCA 60 DAMAGES — NO QUESTION OF PRINCIPLE Clarke JA. The appellant was injured on 3 December 1985 when she was involved in a motor vehicle accident at Belfield. She asserted that her injuries had been received as a result of the negligence of another driver and sued to recover damages. Her case was heard by Judge Patten who awarded her $196,902. She has appealed from that award and in her appeal she has challenged the allowance for future economic loss and for future household expenditure. She has also asserted that his Honour was in error in failing to allow her the costs of psychotherapy upon which the finding made by his Honour, in the appellant's submission, depended, and she has complained that there was no allowance by his Honour for past household expenditure which, on his findings, followed automatically. The last point would lead, if upheld, to an increase in the judgment of $7,319, including interest. Mr Petty, counsel for the respondent, has conceded that his Honour erred in failing to allow for past household assistance and that the judgment should, accordingly, be increased by the amount I have stated. It is convenient at this stage to deal with the claim for future household assistance. The appellant gave evidence that she was paying out $25 per week for household assistance and that the medical evidence supported the conclusion that she was unlikely ever to be able to do more in the house than she was doing now. Accordingly, so the submission went, it was appropriate to allow her $25 per week for the rest of her life, less any appropriate discount. An allowance assessed on that basis would be about $20,000 — $23,000. Accordingly, in awarding the appellant only $10,000 his Honour had discounted her claim by far more than was properly permissible in the circumstances. The difficulty with the submission is that his Honour made a finding which seems to me to destroy the challenge which is now mounted. What his Honour said was that he was not satisfied that the plaintiff would need household assistance at the present level for the rest of her life. That is a finding with which I do not think we should or can interfere. It was no doubt based, in part, upon his Honour's assessment of the appellant, as well as an analysis of the medical evidence. In the light of that finding it seems to me to be very difficult to conclude that he should have proceeded to assess damages on the basis that she would have needed assistance at approximately the present level for the rest of her life and to make some appropriate discount. In view of that finding it is my opinion that the challenge to the claim for future assistance should be rejected. The other matter of contention between the parties is the allowance for future economic loss. The figure allowed was $81,000. That figure was assessed on the basis that the appellant had, as his Honour stated, a permanent diminished 2 UNREPORTED JUDGMENTS earning capacity equivalent to two days per week or fourteen hours, assuming a normal working week of 35 hours. To put it another way, his Honour proceeded upon the basis that she would be able to work three days a week. In order to understand the submission one needs to recount an earlier finding of his Honour which reads as follows: With regard to future economic loss I am satisfied that the plaintiff, by reason of her health, is presently restricted to working reduced hours on one day per week only. His Honour has, accordingly, found that, as at the time of the trial, her capacity was one day per week and on that day, reduced hours. Notwithstanding, this finding his Honour has calculated the future loss upon the basis that she is able to work three days per week. Mr Heazlewood, who appeared for the appellant, made, in effect, three separate submissions. He said that in the light of the evidence and his Honour's finding, which I have recorded, the damages should have been assessed upon the basis of an incapacity to work more than one day per week. In other words his Honour should have allowed damages upon the basis that she would be unable to work four days per week. Upon this basis the award should be increased by a further sum of $81,000. In considering this submission it is important to bear in mind the medical evidence which, as it seems to me, was accepted by his Honour and led to the finding recorded. That was to the effect that she was, at the time of trial, only able to work one day per week but that there was a real possibility that in the future she may work longer hours. This will be particularly so if she was able to come to terms with her incapacity and difficulties. Having regard to that undoubted possibility I think his Honour was correct not to assess damages upon the basis that she was able to work only one day per week. In my view if he had adopted that approach he would have been over-generous in favour of the appellant for it would have assumed that she would never come to terms with her condition and would never be able to work more than one day per week. This was an assumption which, as I have indicated, was contrary to the evidence. Accordingly, I do not think that the first submission can be accepted. The second submission has more force. Mr Heazlewood submitted that in the light of the finding that she was presently able to work only one day per week an assessment based on incapacity for only two days a week in the future failed to take account of the fact that it may be some years before she returned to that condition where she could work longer hours and represented an under-estimate of her loss. It was said, with substance, that the evidence wentno higher than indicating the possibility or probability she would work longer hours. It did not extend to establish that she would be able to work five days a week at any time in the future. If this finding was open then, of course, a challenge might have been difficult as the award based on three days a week would represent a compromise between the present and what might be earned in the future. There was some evidence relied upon by the respondent, that is the evidence of Dr Bodel which suggested that she would be able to work five days a week, but as I see it his evidence was based upon a conclusion that there was really very little wrong with her and very little reason why she could not work five days a week at the time of trial. Inferentially the trial judge rejected this finding and I URJ GLORIA CLARK v GOVERNMENT INSURANCE OFFICE OF NSW (Clarke JA) 3 do not think, in the light of that rejection, it would have been proper for the trial judge to have found that she could have ever worked five days a week in the future. In my view some additional allowance should be made to cover the period during which her incapacity may increase to that capacity which was the subject of his Honour's assessment. In this respect counsel for the appellant made two submissions: one based upon a finding that the appellant would be able to reach her complete capacity in three years and one that it would take her five years. In my view, having regard to the evidence, and particularly the contingent nature of the increase in her capacity, it would be more appropriate to work roughly on the basis of five years and to make a significant discount to give recognition to the fact that she might do better than expected. I would, accordingly, increase the allowance for future economic loss in an amount of $30,000. There was also a claim for psychotherapy in the future to enable the appellant to reach a work capacity which his Honour thought she would reach. There is an evidentiary basis for the submission in the oral evidence of Dr Clark, a psychiatrist. However, there is a real question in my mind whether, on the probabilities, the appellant would ever have attended the psychotherapy courses, and she herself never said she would. It is true that she was not askedwhether or not she would have attended these courses. In a case in which she bears the overall onus, I think that omission is fatal to the claim. Accordingly, I would allow the appeal, I would set aside the judgment of Judge Patten, except as to costs. I would enter judgment in favour of the appellant in the sum of $234,031 and order the respondent to pay the appellant's costs of the appeal. The judgment should date from 1 May 1992. Meagher JA. I agree. Handley JA. I agree. Clarke JA. On the question of costs the appellant made an offer of compromise which involved an increase in the amount of the damages by less than the amount which the Court has increased damages and, in accordance with the rule, seeks an order that the costs awarded to her be awarded on an indemnity basis from 20 August 1992. That application is not opposed and accordingly the Court will order that costs be on an indemnity basis from 20 August 1993. Orders accordingly. Counsel for the appellant: C HEAZLEWOOD Solicitors for the appellant: ROONEY and HEAZLEWOOD Counsel for the respondent: G PETTY Solicitors for the respondent: G M MEADOWS: SOLICITOR FOR THE GIO