HAINES v BOOTH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, MEAGHER and HANDLEY JJA 13 October 1994, 13 October 1994 [1994] NSWCA 118 FACTS: Defendant appealed award of damages for lost earnings, past and future, on basis that calculations made using a forty hour week should have been twenty four hour week; the plaintiff also appealed lack of discount for vicissitudes for future earnings. HELD: (1) Findings on lots earning capacity should not be disturbed. (2) Findings on vicissitudes ought be disturbed ORDERS: (1) Appeal dismissed with costs. Priestley JA Mr Justice Meagher will state his view first. Meagher JA In this matter the respondent/plaintiff, Mrs Booth, was involved in a motor car accident of a fairly horrendous type on 10 November 1982 and sued the present appellant in a trial which took place on 29 July 1993 before his Honour Judge Twigg of the District Court. She obtained before him a verdict of $540,240, from which this appeal is brought. She was quite young at the time of the accident, her date of birth being 20 August 1956. Mr Russell on behalf of the appellant has very usefully reduced the appeal to two grounds. The first ground is as to loss of earnings, both past and future. His point is that the judge calculated the plaintiff's entitlements on the basis that, uninjured, she would have worked a forty hour week. This is a point with which one must have initial sympathy. However, there are three pieces of relevant information one must consider. First, there is the evidence which she gave in the witness box; her words could not have been more precise. She said, in evidence on which she was not cross-examined, "I would have gone back full time if I was able to go back full time". Stopping there, that would have supported a finding that she intended to go back full time. However, the second piece of information is that his Honour found that the plaintiff was planning to work in the same capacity, that is for twenty-four hours per week on a permanent part-time basis. That, of course, is not what the plaintiff said and his Honour gave no indication that he disbelieved her evidence. The third piece of relevant information is that his Honour calculated the plaintiff s damages on a forty hour basis, which was inconsistent with his finding of twenty-four hours, but consistent with her evidence. The various possibilities which derive from this conundrum have been extensively discussed in argument but on the whole I am of the view that the only conclusion one should come as to his Honour's finding that the plaintiff s intention was to work for twenty-four hours is that it was a slip, that is, his Honour's pen did not run with his Honour's mind. I am fortified in this regard by the fact that after his Honour delivered judgment the mathematics of it were 2 UNREPORTED JUDGMENTS challenged very considerably by the present appellant, but significantly not on this point. The first of Mr Russell's points, therefore, seems to me to be one which should not be upheld. His second point was on vicissitudes. There was no discount allowed by his Honour on vicissitudes for future earnings. Customarily, of course, a fifteen per cent allowance is made. Why it was not made is difficult to understand. His Honour advanced very short reasons, some of which seem to be erroneous and others incomprehensible. Mr Russell's submissions, therefore, on vicissitudes ought be accepted, at least to the extent that there should have been a fifteen per cent allowance. I would not, however, accept his further submission that the allowance should have been in the region of thirty per cent rather than fifteen. It is true that nursing, which was the plaintiff s occupation, is a fairly hazardous and accident-prone occupation, often giving rise to back injuries and often giving rise to the risk of infection. However, it is not exceptionally so and not sufficiently so in my view to go above the figure of fifteen per cent. Normally in those circumstances that would result in allowing the appeal and reducing the figure awarded to the plaintiff by something like $43,000, which is fifteen per cent of the future economic loss. However, in a notice of contention filed I think only yesterday, Mr Poulos QC, senior counsel for the respondent, has suggested that his Honour was in error in not awarding an adequate sum for general damages. In this context Mr Poulos relied heavily on Robinson v Riley, which he read to the court. His submission should, I think, be accepted. The ordeal which the respondent suffered was very severe indeed. To begin with the accident itself was really an excruciating accident. It had the unfortunate result that the lady has had three major operations, none of which has been successful; and the further unfortunate result that it has entirely destroyed her working capacity, although she was quite a young woman at the time. It has had the further unfortunate consequence that it has caused her very severe mental problems. To compensate her with the sum of $40,000 for that aggregate of misfortunes seems to me unduly mean. It is difficult to know what a proper sum should be, but in my view it would be something like $80,000. That would leave the result that the appellant's victory would be in an amount which roughly corresponded with the respondent's victory and in these circumstances the appeal should be dismissed. I the court ought to hear argument as to costs. Priestley JA. I agree with what Mr Justice Meagher has said. The overall result arrived at by the trial judge in my view was appropriate for the total damages that should have been awarded to the respondent in the circumstances of her accident and its consequences to her. agree also with the general line of reasoning of Mr Justice Meagher and think it is an appropriate case for the application of the well known authority, Robinson v Riley. Handley JA I also agree that this court should apply its previous decision inRobinson v Riley (1971) 1 NSWLR and therefore agree that the appeal should be dismissed. Priestley JA: The court will make the orders as proposed by Mr Justice Meagher and order the appellant to pay the respondent's costs in the ordinary sense, as distinct from costs on an indemnity basis. Appeal dismissed with costs. URJ HAINES v BOOTH (Handley JA) Counsel for the appellant: DJ Russell Solicitors for the appellant: GIO General Ltd Counsel for the respondent: J Poulos/ T Goodridge Solicitors for the respondent: Firths