KINGSFORD v KAVANAGH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, HANDLEY and SHELLER JJA 21 November 1994 [1994] NSWCA 165 DAMAGES; motor vehicle accident; economic loss; general damages; Suitors' Fund Act 1951 s6C The appellant claimed damages for serious injury suffered by him in 1981 as a passenger in a motor vehicle driven by the respondent which collided with another motor vehicle. The respondent admitted liability and the matter proceeded as an assessment of damages. The appellant challenged the trial judge's decision not to award loss of wages for a certain time period and the amount awarded for pain and suffering. Held: (1) It was open to the trial judge to come to the conclusion he did that the loss of wages suffered by the appellant during the period challenged was not a consequence of the accident. (2) The Court on appeal was faced, eight years after the trial, with forming a view as to whether or not the amount of general damages awarded was so low as to demonstrate that there must have been some error in the exercise of his Honour's discretion. It was not satisfied that this was so. Sheller JA Dennis John Kingsford appeals from a decision of his Honour Solomon DCJ given on 18 September 1986 in which his Honour awarded the appellant a verdict in the sum of $67,638.22. The appeal now comes on over eight years after the hearing. The appellant was born on 8 February 1959. The proceedings concern a motor vehicle accident which took place on 13 September 1981, when the appellant was aged twenty-two, on the Pacific Highway, Hornsby. The appellant was a passenger in a motor vehicle driven by the respondent, Peter Lloyd Kavanagh, when he collided with a second motor vehicle. The respondent admitted liability and the matter proceeded as an assessment of damages. His Honour said that the appellant suffered serious injury. He was taken to the Hornsby and Kur-ring-gai Hospital. On examination he was found to have a swollen left foot, which he was holding planter flexed; he was tender over the lateral left malleolus and calcaneus. There was decreased range of movement. There were no other injuries. Left foot x-rays revealed no abnormality detected. The provisional diagnosis of a contused foot was made and ice, elevation, crepe bandages and crutches were prescribed, and a work certificate for three days was issued. The appellant was then discharged home in a satisfactory condition. His Honour found that there was an aggravation of a pre-existing condition which he described broadly as infantile poliomyelitis. He found the appellant at the time of the accident did not suffer from any incapacity as a result of him having contracted infantile poliomyelitis as a child. The appellant had been able to undertake a course and an apprenticeship in printing and had been able to hold down employment in the printing industry; and he also worked physically as a storeman. Prior to the accident he was an active man engaged in many sporting activities, and enjoyed dancing. 2 UNREPORTED JUDGMENTS The medical reports, tendered in the appellant's case, demonstrated that his medical condition at the time of the trial was a direct consequence of the injury sustained by him in the accident. His Honour noted that during the course of the case counsel for the respondent conceded this. In turning to assess damages his Honour dealt first with past economic loss, noting that he should have regard to matters raised in reports prepared by a neurologist, Dr John Allsop. The appellant had been off work after the accident for a period up till 8 November 1981. Thereafter he returned to work for Dairy Farmers, where he continued to work until 11 January 1982 as a storeman. He left work at Dairy Farmers because he felt that he was not pulling his weight. He then returned to an employer called Globus Group working as a printer, where he remained until 21 August 1982 when he took one month sick leave. He resigned from Globus Group on 21 September 1982 and remained off work until 13 May 1983 when he took up part time work with Coles. In November 1983 the appellant was permanently employed with Coles where he worked at Liquorland serving and as a cashier. He did book work and stacked shelves. Ultimately he became manager of a store. At the end of June 1984 he resigned from Coles and in November 1984 commenced work as a flexiograph printer at Woolprint. There he remained in employment up to the date of trial. In respect of the appellant's claim for past economic loss, his Honour allowed all the amounts set out in a schedule tendered for the appellant except an amount for the period from 21 August 1982 to 8 March 1983. His Honour said that on the probabilities the appellant's loss of wages during that period was not a consequence of the accident but the result of an incident which was referred to in the reports of Dr Allsop. The date, 8 March 1983, seems to have been chosen by reference to the second of Dr Allsop's reports. It is unnecessary for the purposes of this appeal to refer to any other part of his Honour's calculation of past economic loss. Dr Allsop made a report on 31 August 1982 shortly after he had first seen the appellant. In that report he referred to an incident two or three weeks previously when the appellant was a passenger in a car and sat with his left knee across his right knee for about twenty minutes. When he went to get out of the car he found his left leg would not hold him. He struggled to his car and drove home and when he woke up in the morning he found he could not get his foot up properly. Dr Allsop's opinion was that the physical features in the appellant's case suggested a left lateral popliteal nerve lesion. He considered the episode was significant and regarded it as accounting for the exacerbation in the appellant's condition. He said that the lateral left popliteal nerve lesion might be entirely due to this episode. He could not be sure. The nature of the injury was such that it was possible it did occur by direct compression from the door of the car in the motor vehicle accident in 1981. As a result of this condition the appellant was advised to wear a calliper. In a later report of 8 March 1983 Dr Allsop said that the weakness of the appellant's left leg had improved and he continued to wear his calliper four days out of seven. The appellant reached a plateau in his improvement about four to five weeks after the doctor had last seen him, ie in late September or early October. Since that time if he took the calliper off and stood up a lot his left leg ached. Associated with this aching was a tendency for the left leg to droop. The appellant complained of a lack of sensation on the top of his left foot. At the time the doctor saw him he was away from work. He went back for one day wearing URJ KINGSFORD v KAVANAGH (Sheller JA) 3 his calliper but was promptly retrenched as he could not keep up sufficient output as a printer. Since that time he had not tried to get a job as he did not feel he could cope. On 8 March 1983 Dr Allsop stood by his previous prognosis that there was a left lateral popliteal nerve root lesion present in August 1982 and this had rapidly cleared up. His Honour came next to assess damages for future economic loss. He referred to the fact that the appellant was aged twenty-seven at the date of trial and could expect to work at least for twenty-five years. He referred to the nature of the work that the appellant had undertaken. His evidence was that he worked with difficulty, and whilst doing printing work had had to have a chair adjacent to his printing machine. His Honour observed that the appellant had to be compensated for diminution of earning capacity and loss of opportunity he would have on the open labour market. He said that the appellant's medical condition was one that caused him much concern. He walked with a distinct limp, which had been obvious over the two days of the hearing of the case in Court. He said he suffered from the following disabilities: in relation to his left leg, aching left foot, pain and tenderness of the left heel, aching in the back of the left foot, change of neurological sensation at the top of the left foot and aggravation of a pre-existing condition being Pes-Cavus deformity of the foot with a tightening of the Tendo-Achilles. The trial judge found that this disability caused the following problems to the appellant: he was unable to stand for the same period of time he was able to stand before the accident; he was unable to undertake the work of a storeman and, on the balance of probabilities, he would be unable to undertake over his future working life, work on large printing machines. His Honour had regard for the fact that the appellant was in employment and he had an opportunity for promotion at the time of the trial. He considered that the appropriate award was a global sum of $20,000 to compensate the appellant for loss of future earning capacity and the diminution and restriction of opportunity he would have on the open labour market. His Honour fumed to damages for pain and suffering. He referred to the fact the appellant had worn a splint and had worn a calliper. However, in the light of the neurological conditions referred to by Dr Allsop, and to which I have referred, his Honour decided to award the appellant no sum in relation to the wearing of the calliper or the wearing of the splint. His Honour considered that the appellant's back condition of which he had given evidence of causing him problems on a number of occasions was a minor matter in regard to the question of compensation. His Honour then referred to pre-accident enjoyment that the appellant had had in various sporting activities which were set out in the evidence. His Honour said it was clear that the appellant, in addition to being unable to undertake sporting activities, was unable to enjoy his young child in the manner that most fathers are able so to do. Taking account of the actuarial life expectancy of forty-six years, and the fact that the appellant for the rest of his life would carry a limp, his Honour said that in relation to general damages, including the $20,000 in respect of loss of earnings in the future, he would award the appellant an amount of $47,500, that is to say, $27,500, ignoring the amount allowed for future economic loss. He broke this amount of general damages up and assessed $15,000 for past pain and 4 UNREPORTED JUDGMENTS suffering over a period of five years, for which he allowed a rate of interest at seven per cant. He awarded the appellant an amount of $5,250 interest on past general damages. In addition to the amount to which I have referred he awarded the appellant $1,005.18 in relation to medical expenses and an amount of $3,592.32 for interest on economic loss to the date of hearing. I should say that in the course of his judgment the trial judge said that he regarded both the appellant and his wife, who gave evidence, as truthful witnesses. The appeal challenges three parts of his Honour's assessment of damages. In the first place it is said that his Honour should have allowed either the whole or some part of the appellant's loss of wages for the period from 21 August 1982 to 8 March 1983. Reference is made to some part of the report given by Dr Kendall and tendered in evidence on behalf of the appellant. Having considered the evidence given by Dr Allsop, part of which I have referred to in detail, it seems to me that it was open to his Honour to come to the conclusion he did that the loss of wages suffered by the appellant during this period was not as a consequence of the accident. It is perhaps worthy of note that the onus was on the appellant to satisfy his Honour that the loss of wages he suffered during this period was due to the accident. His Honour seems to have treated the matter as requiring the respondent to demonstrate that the loss of wages was not due to the accident. Even so, he concluded on the basis of this onus on the respondent that the loss of wages was not as a consequence of the accident. Having carefully paid attention to the submissions that have been advanced on behalf of the appellant both orally and in writing, I can see no basis for disturbing his Honours conclusion in this regard. The next part of the finding of damages which is challenged relates to the award of general damages. It is submitted on behalf of the appellant that the amount of $27,000 was grossly deficient. A number of matters was referred to in this respect. The appellant gave evidence about his sporting activities, notably skiing, water skiing, squash and ice skating. He also gave evidence of his attempts to take up those sports again after the accident and his inability to do so. I have read the evidence that he gave about those matters. Since the accident the appellant had taken up ten pin bowling but even this pursuit he undertook with some difficulty. There was also evidence given both by his wife and by himself about the continued pain that he had suffered since the accident; difficulties that he had with stairs; difficulties he had had in getting up in the morning and the need that he had when working regularly to take some form of pill for relief against pain. In the course of dealing with general damages his Honour did not expressly refer to the pain factor but he had earlier referred to it in some detail in his judgment and I do not think it could be inferred that his Honour disregarded it when he came to assess general damages. There is evidence that some months shortly before the trial the appellant had started regularly riding a motor cycle and that endeavour seemed to require some considerable use of his left foot in order to operate the machine. As counsel for the respondent pointed out we are here faced eight years after the trial with forming a view as to whether or not the amount of general damages awarded was so low as to demonstrate that there must have been some error in his Honour's exercise of discretion in assessing the amount awarded. URJ KINGSFORD v KAVANAGH (Handley JA) 5 Having considered the matter carefully, and taking account of the eight year lapse of time, I am not satisfied that it has been demonstrated that there was any such error in the exercise of his Honour's discretion. No other error has been suggested in this part of his Honour's assessment of damages. Accordingly in my opinion this part of the appeal also fails. The final matter relied upon by the appellant is a challenge to the amount of $20,000 which his Honour awarded for future economic loss by way of a cushion. It is pointed out on behalf of the appellant that if one assumes at the time of the trial the appellant had thirty-eight years of working life left, the amount involved was something in the order of an award of $20 per week using the three per cent tables with a fifteen per cent deduction for contingencies. The evidence was that from the time the appellant had engaged in full time employment with Coles he had remained in full time employment and had, as was pointed out, some prospects of promotion. It seems that during this time he had little, if any, time off work. The medical evidence did not suggest that the condition from which the appellant suffered at the time of the trial was likely to worsen in the future in a way which would reduce his earning capacity. It seems to me on the evidence before his Honour that an appropriate approach to the assessment of future economic loss was to provide a lump sum by way of a cushion. I am not satisfied that the amount of $20,000 chosen by his Honour was so low as to enable this Court to interfere with it. Accordingly, in my opinion, this ground of appeal also fails. I would propose, therefore, that the appeal be dismissed with costs. Meagher JA I agree that the appeal should be dismissed with costs, and I do so with some regret. I say with some regret because the behaviour of the appellant was very stoical and commendable. I feel unhappy about the misfortunes he has suffered in getting this appeal on. My brother Handley JA has drawn my attention to the provisions of s6C of the Suitors Fund Act 1951 which seems to have the effect that whilst it is not a matter in which the Court may make any order, the appellant's solicitors may approach the Secretary for an order that the appellant's costs of the appeal be paid out of the Fund on the ground that the breakdown in the Court administrative system seems to be mainly responsible for the delay, and the delay must have added significantly to the costs of the case. Handley JA I agree with both the previous judgments. I only add in relation to the Secretary's powers under s6C of the Suitors Fund Act, even if the appellant fails to obtain a certificate for the whole of his costs of this appeal, it may well be appropriate for the Secretary to grant a partial certificate because it seems to me the effect of the eight year delay in this case must have been to double the costs of this appeal. Appeal dismissed with costs. Counsel for the Appellant: J L Ryan Solicitors for the Appellant: Lees & Givney Counsel for the Respondent: V B Hughston Solicitors for the Respondent: G M Meadows