NSW MINISTERIAL CORPORATION (formerly GIO of NSW) v BECHARA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and SHELLER JJA 7 July 1994, 7 July 1994 [1994] NSWCA 241 DAMAGES: economic loss; vicissitudes, low level of earnings but potential for substantially increased gain; lack of notice of a ground of appeal; prejudice to respondent as claim on that ground cannot be fairly met. The respondent suffered injury when involved in a collision with another motor vehicle, after which he spent the majority of time up until trial (5%4 years) off work. At the time of the accident the respondent was a builder earning only $300 per week from his company in the hope that the value of the company would be thus increased. In calculating economic loss, the trial judge balanced between the respondent's actual economic loss at that wage up until trial ($89,700) and the economic loss which would have been incurred had he drawn the usual salary of a supervising foreman ($239,200) and awarded a sum of $105,000. Considering the factors which the trial judge took into account, this amount was found to be within the appropriate range. An argument against the award for future economic loss was dismissed for similar reasons. The appellant sought also to challenge the amount awarded for future medical treatment; however the respondent was notified of this ground only six days before the hearing and there was no evidence found in the transcript upon which his Honour's findings were based. Having been raised with little to support it, leave to rely on the ground was refused and the appeal was dismissed with costs. Sheller JA This is an appeal against the judgment of his Honour Judge Knight given on 25 March 1993. The proceedings arose out of a motor vehicle accident which occurred on 23 May 1987. Liability was admitted and the issue was limited to the question of quantum. The respondent was born on 10 February 1947. He came to Australia when he was twenty-one to join his brothers. Ultimately he successfully undertook a Building Certificate Course at the Sydney Technical College and received his certificate on 31 December 1979. Prior to that time and thereafter he worked with his now deceased brother, Harry, as a builder. The respondent became a licensed builder. In September 1984 he was struck by a motor vehicle when he was a pedestrian and as a result suffered injury to his left arm and his left hip and his left upper arm was broken. He had some time off work after that. In late 1985 he went back to work as a project manager and commenced a building project with his brother Albert at Mosman. In 1986 they commenced another building project in Parrawi Road, Mosman. On 23 May 1987 the respondent, whilst driving to work, was involved in a head on collision with another vehicle. After that accident, he felt dizzy, things looked yellow in front of him, he had pain in the right side of his head, towards the rear and in his left arm. He said he had hit his head on the rear seat. He went to the medical centre at Cremorne. His whole body was shocked, as he described it, and he had a lump on the right side of his head towards the back. 2 UNREPORTED JUDGMENTS He was taken to the Burwood Medical Centre. He was examined there and x-rays were taken and from there he went home. He stayed in bed for a period of about a week. He claimed, as his Honour said, to feel something flying in front of his face and pain in his left arm and elbow and he had sleeping problems. He also said that he felt depressed and thereafter everything changed about him. People got on his nerves, he put on weight and he was unable to do physical work. His Honour described the problems that the plaintiff himself gave evidence of as follows: "The plaintiff said that thereafter he has experienced the following problems: that he forgets things quickly, that is to say that if someone tells him something today, he is likely to forget it by tomorrow; that he has headaches every day for which he takes Panadene tablets on occasions up to eight a day; that he has no energy and has given up playing squash and his social activities and indeed the walking that he used to do with a long standing friend; he has retreated into himself and has found it difficult to meet people and he is not reliable, in that he is unable to remember things and is unpunctual. He attempted to go back to work but found that he could not function as a builder supervising the necessary trades, and his brother Albert, in fact finished the Parrawi Road project." Thereafter except for a period in 1991, he remained off work up until the time of the hearing. A live issue at the hearing was whether or not the respondent had suffered brain damage. His Honour ultimately concluded that this claim was not made out and that particular part of his Honour's judgment is not in issue on this appeal. His Honour did, however, accept that the respondent had mental problems which had continued from very shortly after the motor vehicle collision up to the time of the trial. His Honour accepted the respondent's complaints of forgetfulness, irritability, lack of energy and lack of interest in activities that previously had been of importance to him. He was further satisfied that any mental problems the respondent had were either caused or materially contributed to by the May 1987 accident. Various causes were advanced for the respondent's condition but his Honour ultimately came to the conclusion that there was no organic brain damage. He accepted that the respondent suffered from a major depression as well as an anxiety state. I have but briefly set out of his Honour's findings about the condition from which the respondent suffered from. Taking the matters that his Honour referred to into account, his Honour came to consider the pain and suffering and the amount that should be awarded for general damages. He again summarised the plaintiffs condition in the following terms: "In considering the extent of the plaintiffs pain and suffering and loss of amenity of life, it seems to me that one has to take into account the fact that these problems that the plaintiff has referred to, namely his lack of memory, his irritability, his general lack of energy, affect just about every aspect of his normal day to day living. They have obviously adversely affected his relations with his wife, particularly in relation to sexual matters. They have affected his social life. They have affected his sporting and other leisure activities and of course they have affected his work and the enjoyment which he no doubt would have experienced from performing such work." Some of the conditions from which the respondent suffered his Honour attributed to the 1984 motor accident but he was satisfied that the headaches of which he complained were as a result of his depression which, as I have said, were a result of the 1987 accident. Taking account of these matters and the URISW MINISTERIAL CORPORATION (formerly GIO of NSW) v BECHARA (Sheller JA) 3 possibility of which there was evidence, that the respondent would not be able to be effectively cured within the six month period after the accident he assessed general damages at an amount of $70,000. This amount was challenged by the appellant but without enthusiasm. Taking account of the matters to which his Honour referred I do not think that it can be said that this amount was outside the range of an appropriate exercise of judicial discretion and this ground of appeal I would propose should be rejected. His Honour then turned to consider what amount should be allowed for past economic loss. This question presented some difficulty. It appears that during a period prior to the date of the accident the appellant had been employed by a company called Kathlij Pty Ltd which at one stage was owned by himself and his brother and at a later stage by himself and his wife. This company owned the land upon which the Parrawi Road project was being carried out. It appears that the nett income that the respondent was receiving immediately prior to the accident from this company was in the order of $300 per week. His Honour accepted the respondent's evidence that he took a comparatively minimal wage from the company with the intention that at the end of the day the value of the company would be increased. In approaching what would be an appropriate amount to award for past economic loss his Honour took as a guideline the received income of $300 nett a week and calculated that that would throw up a loss for the five and three quarter years of $89,700. This figure is not challenged. He then went on to refer to some evidence that was given by the respondent's sister-in-law that if he was at the time of the trial employed as a supervising foreman he would have been earning a minimum of $800 net per week. This figure taken over the same period of five and three quarter years would throw up a total of $239,200. His Honour used these two amounts as guidelines taking into account the amount that in fact the respondent had received during this period by way of wage, namely $22,750. Having done this his Honour went on to say that taking into account the vicissitudes to which he referred in his judgment and the fact that he did not consider the case to be one for a simple mechanical calculation, he considered the proper sum to award was the sum of $105,000, having regard to the respondent's low level of earnings but with the potential for substantially increased gain. This amount is challenged by the appellant. Criticism is made of the use by his Honour of the figure of $800 nett per week. Reference is made to the fact that some three years before the accident the respondent's wage potential was said to be something over $500 nett per week. Reference was made to the lack of evidence to show that, in fact, the alleged reduced wage being received by the respondent at the date of the accident was made up by a surplus or retention in the company employing him. Reference was made to the use of the $800 figure and the formula working back from that figure rather than working forward from the actual figure the respondent was earning at the date of the accident. Reference was also made to the fact that at one stage the respondent suffered from a hernia and other vicissitudes during the period in question. However, taking account of all these arguments it seems to me that the figure chosen by his Honour, namely, $105,000 set against the figure of $89,700, taking account of the obvious capacity of the respondent to earn considerably more than he was earning at the time of the accident (and there is abundant evidence of that) even taking account of the fact that apparently the project at Parrawi Road was ultimately taken over by a receiver for the mortgagee, I do not think that it has 4 UNREPORTED JUDGMENTS been demonstrated that the $105,000 is a figure so great as to be outside the range of an appropriate aware for the past economic loss. There is no doubt that the evidence about the respondent's earning and about the affairs of the company is slight indeed. But a good deal of this seems to me to be attributable to the way in which the defendant saw fit to approach this case at trial. Taking all these matters into account and having paid attention to the arguments that have been advanced, for my part, I would not interfere with the amount awarded by his Honour for past economic loss and I would reject this ground of appeal. His Honour then came to deal with future economic loss. Again the amount that his Honour awarded used as one of the guidelines the figure of $800. The award was arrived at taking account of two periods of time. Firstly, the six month period before possible recovery of which there was evidence and then the period thereafter during the rest of the respondent's working life. It was acknowledged by the appellant that in large measure the argument with respect to future economic loss turned upon similar considerations to those advanced in favour of the appellant against past economic loss. Again, having considered his Honour's judgment, the amount awarded of $145,000, the claim (discounted as it was by his Honour) seems to me to fall within the appropriate range and I would again reject this ground of appeal. This leaves the ground of future medical expenses. Under this head his Honour allowed a total amount of $23,120. Part of this was an amount in respect of future hospitalisation in a psychiatric institute at a cost of $350 a day. His Honour said there was some evidence from Dr Tan that the plaintiff would or may need eleven weeks in hospital at $350 per day. That produces a sum of $26,950. "However, as I understand Dr Tan," his Honour continued, "he was not saying that such hospitalisation was an absolute requirement and, obviously, the extent to which the plaintiff will need that hospitalisation will depend upon how quickly he responds to the treatment proffered to him." In ground 4 of its notice of appeal the appellant argued that the amount awarded for future medical treatment was excessive. When the appellant furnished its written submissions, which we were told did not reach counsel for the respondent until last Friday, the point was taken that there was no evidence from Dr Tan that the respondent would require hospitalisation in a psychiatric institution. Mr Coombes QC, who appears for the respondent, objected to the appellant being allowed to rely upon this ground at this late stage. We were told that a search through the transcript reveals no evidence from Dr Tan of the nature to which his Honour referred. There is a document which is described as a quantum calculation and which was tendered in evidence. This clearly enough refers to hospitalisation in the same terms as his Honour referred to it. There is also some suggestion in a report of Dr Tan dated 10 February 1993 that the respondent might need the services of a rehabilitation unit. For my part, simply on the basis that this evidence cannot be referred to in the transcript, bearing in mind that his Honour gave an ex tempore judgment, apparently the day after evidence was completed and before the transcript was available, I would not be prepared to do other than accept that the evidence before his Honour was exactly as his Honour stated it to be. In any event, it seems to me that the matter being raised at this late stage, the respondent is in a position where he cannot fairly meet what is now said about that evidence. It may be that if the matter were to be investigated evidence could be obtained from those who UWABW MINISTERIAL CORPORATION (formerly GIO of NSW) v BECHARA (Handley JAB were present at the trial or it may be possible to gain evidence by access to his Honour's notebooks. However all this may be, on the material before us the ground is not made out. This having been raised with so little to support it, at this late stage I would refuse the appellant leave to rely upon this ground of appeal. In all the circumstances the orders that I would propose would be that the appeal be dismissed with costs. Clarke JA I agree. Handley JA I agree. Clarke JA: The order of the Court will be that the appeal is dismissed with costs. Counsel for the appellant: G R Petty Solicitors for the appellant: Stephen Mills, Newcastle Counsel for the respondent: J S Coombs QC/C K Hickey Solicitors for the respondent: Everingham Solomons