THE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v JACKSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and MEAGHER JJA 13 April 1994, 3 May 1994 [1994] NSWCA 112 APPEAL FROM DISTRICT COURT — Assessment of damages in motor vehicle accident case — Judgment for $276,000. GENERAL DAMAGES — $100,000 awarded — Brain damage and physical injuries — Advantage of trial judge in seeing plaintiff in evidence — Assessment not appealably wrong. ECONOMIC LOSS — Basis of assessment — Judge held proper basis was award of "cushion against future bouts of unemployment and employment at lesser rates of pay" — $150,000 awarded — Held: On the facts, no appealable error in adoption of that basis — Effect of uncertainties as to future employment on quantification of damages. ORDER Appeal and cross appeal dismissed with costs. Mahoney JA On 26 September 1984 the plaintiff was injured whilst riding a motor cycle. He sued for damages in the District Court. The defendant has accepted responsibility: Acting Judge Finnane QC was invited to assess damages. On 9 November 1990 his Honour gave judgment for the plaintiff for $276,000. The defendant has appealed to this Court against his Honour's judgment. His Honour's award of damages was made up as follows: 1. Pain and suffering past, present and for the future $100,000 2. Loss of opportunity and cushion for future $150,000 unemployment 3. Future medical expenses $25,000 4. Past wage loss (including interest) $1,000 Total $276,000 The defendant, on this appeal, has contested the components of damages represented by items 1, 2 and 4. In the Notice of Appeal, the only grounds pressed, grounds 4 and 5, related to the award of general damages and the award for "loss of opportunity and cushion for future employment": both were said to be excessive. The plaintiff has cross appealed in respect of his Honour's calculation of future economic loss (his adoption of, as it was described, a "cushion" as the basis of calculating that loss), the assessment of past economic loss and the adequacy of the award of general damages. And in the Notice of Cross Appeal, certain findings of fact were contested. (In the Notice of Cross Appeal, it was contended that his Honour erred "in failing to award the plaintiff out of pocket expenses as agreed between the parties". Nothing was said in that regard during the hearing before this Court). 2 UNREPORTED JUDGMENTS In order to understand the submissions made, it is necessary to refer in some detail to his Honour's findings of fact. The plaintiff was born in New Zealand on 2 September 1967. His parents separated when he was young, his mother living in New Zealand and his father in Sydney. He lived with his mother. As a child he was active in sport of various kinds and played competitive Rugby Union in the Canterbury representative side for two years. He was not "a particularly talented student" but attributed his lack of success to his "unwillingness to study". He failed to pass his School Certificate in 1983. In December 1983 he moved from Christchurch, where had lived, to his father's home in Sydney. He did this "to find a job because in Christchurch, where I lived, there was not a lot of jobs". In January 1984 he commenced a part time course in panelbeating at the St George Technical College and worked part time as a labourer. He was injured on 22 September 1984 and treated at the Royal Prince Alfred Hospital. On 6 October 1984 he was discharged and in December 1984 returned to New Zealand. In February 1985 he commenced a panelbeating course at the Christchurch Polytechnic and obtained employment with a firm of panelbeaters. Between November 1987 and December 1988, he was in Australia and worked successively as a warehouseman, a security guard patrol officer and an apprentice panelbeater. In December 1988 he returned to New Zealand, resumed his apprenticeship in panelbeating and remained there until the trial. As the judge indicated, there was no dispute as to "the extent and seriousness of the physical injuries and scarring which the plaintiff suffered" or about "some of the physical consequences such as the plaintiffs difficulty in turning his head and using his right shoulder". The substantial dispute before the judge concerned whether the plaintiff suffered a brain injury and whether difficulties which he has with personality and employment should be attributed to that brain injury. The judge detailed the physical injuries which the plaintiff suffered. These included a deep laceration to the right side of the neck leaving a gaping wound and severe scarring; a penetrating injury to his right knee; a fracture of the lateral aspect of the right first rib, a fracture of the middle third of the facial skeleton; a Colles fracture of the right arm; a Smith's fracture of the left arm; and lacerations to the left cervical region. The scarring is sensitive to touch "and causes discomfort frequently". He swivels his body rather than turning his neck. He suffers from headaches, weakness and pain in both his wrists, backache and restriction in his movements. There appears little prospect of significant improvement in relation to these matters. If he uses his right shoulder joint for any period, "he gets a cramping feeling and is very stiff'. This occurs particularly "when he uses a hammer or engages in heavy lifting and it feels stiff in cold and wet weather". He also has difficulty in moving his right arm to exercise his shoulder joint then raising his right arm from his side. He has deep soreness in the right wrist if he uses a big hammer for a long time and he uses his left arm when working because of the problems with his right arm, shoulder and wrist. His Honour accepted the conclusion reached by Dr David Bell that the plaintiff had suffered brain damage causing loss of memory and personality problems. His Honour described these as "severe". He said that each of them: "... made him a largely unattractive employee who, in my opinion, will forever be dependent on the goodwill from an employer to get or hold a job. In addition, he appears dull witted, withdrawn and not very likeable. He is not capable of running his own panelbeating shop, he is unable to quote for jobs and in reality URE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v JACKSON (Mahoney JA) he is probably employable only as a welder or perhaps doing some panelbeating jobs such as panel repair. For other panelbeating jobs he would need supervision." The judge examined the evidence as to the plaintiffs condition prior to the accident. He concluded that: "\.. whilst the plaintiff was not gifted as a scholar, he was nevertheless intelligent, had initiative, was interested in making money and was able to do mechanical work with little difficulty. It seemed clear that he was someone who was quite good at skilled manual work. I would also conclude that he was an outgoing happy person who had an interest in doing things". The judge concluded from what he saw in court that he appeared a rather "dull young man who spoke slowly and seemed at times to have difficulty in grasping what was being asked of him. This seemed to come and go so that at times in the witness box he appeared much clearer than at other times". At the trial, there was conflict in the medical evidence as to the nature of the plaintiffs head injury and the consequences of it. Dr David Bell, whom the judge accepted, gave detailed evidence about these matters but it remained for the judge to form conclusions on which he could act for the purposes of the assessment of damages. As I have indicated, there has, in relation to the matters here relevant, been no contest as to the judge's findings of fact, in the notice of appeal or cross appeal or by way of notice of contention. It is appropriate that the court deal with the matter upon the basis of the findings which the judge made. I come now to consider his Honour's approach to the assessment of damages. 1. GENERAL DAMAGES: It was submitted for the defendant that the award of $100,000 was appealably excessive; it was submitted for the plaintiff that it was appealably inadequate. I see no error in what was done by the trial judge. In his judgment he indicated clearly and succinctly the injury that had been done to the plaintiff, physically and by reason of the brain damage he had suffered. The physical injuries were substantial and involved both restriction of his activities and a significant degree of ongoing pain and discomfort. The effect of the brain damage was, on the terms of the evidence, more substantial. Mr Mater has properly pressed that the plaintiff returned to work within a comparatively short time after the accident and that, in so far as work has been available, he has been able to work more or less continuously since that time. The work has involved physical activity of various kinds. But his Honour concluded, in my opinion, correctly, that there was as the result of the accident a substantial change in him and in his personality. His loss of memory - it was necessary for him to have a box in which to put the motor car parts he dealt with because otherwise he would forget where they were and lose them - was significant not merely for the difficulties directly caused by it. The judge might, I think, properly have seen it as an index of the seriousness of the interference with his general functioning. But however that be, the terms of the evidence showed a significant deficit as the result of the accident. There is a further matter which would make it inappropriate for this Court to interfere with the judge's assessment. It was necessary that an assessment be made of the overall effect of the brain damage. His Honour assessed his pre injury state: I have referred to his conclusions. He was in a position of particular advantage in assessing his post injury condition in that, observing the plaintiff in the witness box, he was able to form an opinion as to his affect and from this to infer the effect of the injury on him. The courts have indicated the limits upon appellate interference with an assessment of damages for pain and suffering and 4 UNREPORTED JUDGMENTS the life. In a case such as the present, the advantage of the trial judge is, in my opinion, such that it is the more difficult for an appellate court to intervene. I am not satisfied that his Honour's assessment was wrong. 2. ECONOMIC LOSS: In respect also of this heading of damage, there were competing claims. In order to assess these claims, it is necessary to consider the task with which the trial judge was faced. Prior to the injury, the plaintiff's interests had been in physical work and in particular in the area of panelbeating and the like. What he had done, eg, in undertaking a panelbeating course in Sydney, and in what he did afterwards, in repairing motor vehicles and the like, made it proper for the judge to see his future, uninjured and injured, as probably involving work of this kind. Work as a panelbeater was apt to involve the completion of an apprenticeship, possibly progress beyond the level of an ordinary tradesman to a more remunerative level, and ceasing work in panelbeating at the age of forty five or thereabouts. At that stage, some panelbeaters were said to progress to, eg, work as loss assessors, others found other employment. The judge could take the view that, in Australia and in New Zealand, there was or was apt to be no great surplus of panelbeaters. Damages for economic loss involves the quantification of the money value of, in general, loss of economic capacity. But, in measuring the capacity lost and the money value of that loss, conventionally regard is had to what the plaintiff would uninjured have earned and what, injured, he is apt to earn. It was submitted for the plaintiff that his Honour should have followed such a course in assessing damages for economic loss in this case. His Honour did not do so. He concluded that it would be "an invalid approach". He said: "The plaintiff is obviously less employable than he was before and has suffered a loss of opportunity to get higher paying work. I must take into account that as a panelbeater he would probably not work past the age of 45 but obviously in the normal course he could be expected to obtain some other form of gainful employment. Because of his injuries, he needs to be given some form of cushion against future bouts of unemployment and employment at lesser rates of pay." His Honour saw the appropriate course as being to give "a cushion to compensate him for future unemployment and employment at lower rates of pay". He concluded that "it would be appropriate to include in the sum awarded for general damages compensation for these items". Accordingly, under a heading "Loss of opportunity and cushion for future unemployment" his Honour awarded $150,000. This, of course, was in addition to the sum of $100,000 awarded for "pain and suffering past, present and for the future". The selection of the proper means of compensating the plaintiff for the loss of capacity suffered required the assessment of several uncertain factors. First, it was uncertain whether uninjured he would have returned to New Zealand and the relationship between his injuries and his ultimate return there. The rates of pay and perhaps his opportunities would or may have been different according to whether he worked in Australia or New Zealand. This posed a difficult question of fact for the judge. It is not necessary to recite the evidence and the competing contentions. It is sufficient that the judge concluded that he "may well have decided to go back to New Zealand to be closer to his mother even if he had not had this accident" and his Honour said: "\.. it is not possible for me to draw the conclusion as a matter of probability that the plaintiff, once he finished his apprenticeship would have stayed in Australia for the rest of his working life, working as a tradesman panelbeater or URE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v JACKSOS (Mahoney JA) getting an income of an even higher level as a loss assessor, salesman or technical college teacher." This is a conclusion with which, insofar as it may be relevant, I would agree. It is probable, though not certain, that, uninjured and injured, his economic future lies in New Zealand. Accordingly, and making due allowance for contingencies, compensation for loss of capacity is to be judged by reference to wages, employment, and the like in New Zealand rather than in Australia. Second, the plaintiff's future is somewhat less predictable than is ordinarily the case in cases in which economic loss for the future is to be assessed. In many cases, the economic future of a plaintiff will be reasonably predictable: it is possible to predict, with appropriate probability, what occupation he will follow; a conclusion can be formed as to the likely weekly loss of income; and it is possible to infer that that loss would have continued, in a relatively regular way, during the working life. In the present case, the pattern of his working life for the future is less predictable. While he continues with his present or another favourable employer, the plaintiff may continue work as a panelbeater. How long he will be able to do that is uncertain: the judge thought it probable that "he will not retain his employment beyond two or three years with his current employer and he will then be forced to take a semi skilled or unskilled job". But, since his accident, he has been able to do panelbeating work on motor vehicles and sell them. What he can do and what employers he will encounter were obviously matters of some uncertainty. Third, at the trial uncertainty existed as to what employment he would or could obtain outside the panelbeating industry. It is not necessary to recite the work discussed in evidence. If he remained in panelbeating, he would in any event leave it at about age forty five. Therefore it would be necessary to conjecture what, twenty years or more from the date of trial, he would or will do in employment when, as is contemplated, panelbeating will have been closed to him. His Honour obviously concluded that he could and would obtain work outside panelbeating. He had done so following the accident and his Honour obviously concluded that there was a reasonable prospect of him doing so in the future. But, in respect of this matter also, the degree of uncertainty was significant. These are illustrations of the uncertainties affecting the judge's assessment. He concluded that "the cushion" approach to which he referred was the appropriate approach. I see no error of principle in what his Honour did. For myself, I would accept that the plaintiffs future, following his injuries, is affected by such uncertainties that that is a proper approach to the assessment of economic loss. It was then submitted that, even on this approach, the amount awarded was inadequate. It was submitted, for example, that it failed to take into account loss of income during the period after the plaintiff would cease to work in the panelbeating industry. Calculations based upon actuarial tables were suggested for this purpose. I am not satisfied that his Honour's assessment was wrong. Considering it, as on a rehearing, I do not think that the court should interfere. What the plaintiff uninjured could and would have done is not a matter of prediction: it involves conjecture. Accepting that, injured, he will not be able to obtain work as a loss assessor or in the other capacities to which his Honour referred, the quantification of compensation for that loss of "opportunity" involves the assessment of uncertainties, and uncertainties apt to arise twenty years or more from now. The assessment of a present money sum for a loss in the future of such an opportunity is difficult. I see no appealable error in what the judge did. 6 UNREPORTED JUDGMENTS Reference was made in argument to the amount awarded for past economic loss, viz, $1,000. The attack upon that award depended, in my opinion, significantly upon the prediction of what, uninjured, the plaintiff would have done. If it be accepted that he probably would in any event have returned to New Zealand and obtained work as an apprentice panelbeater, then the events showed that he did that. He suffered no actual loss beyond the period in hospital and the like. I see no error in the judge's assessment in this regard. For these reasons, I am of the opinion that the appeal should be dismissed with costs. The cross appeal should also be dismissed with costs. The costs may, in the ordinary course, be set off. Priestley JA I agree with Mahoney JA. Meagher JA I agree with Mahoney JA. Appeal and cross appeal dismissed with costs. Counsel for the Appellant: HJ MATER Instructed by: GIO LEGAL SECTION Counsel for the Respondent: JS DRUMMOND Instructed by: THOMAS P GLYNN AND CO