NSW INSURANCE MINISTERIAL CORPORATION (FORMERLY GIO OF NSW) v ADAMS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, MEAGHER and HANDLEY JJA 12 October 1994, 12 October 1994 [1994] NSWCA 240 FACTS: The appellant challenged the quantum awarded for general damages, past economic loss and future economic loss. HELD: (1) As to general damages appeal allowed. (2) As to past economic loss appeal allowed. (3) As to future economic loss figure not to be disturbed. ORDERS: (1) Appeal allowed. (2) Verdict below to be set aside and verdict to be entered in manner set out in judgment and figures to be submitted by counsel. (3) No order as to costs. Priestley Jameagher JA will give his reasons first. Meagher JA This is an appeal by the Government Insurance Office against the verdict and judgment in favour of the respondent/plaintiff, Mrs Adams, in respect of an accident she suffered on 25 November 1985 when she was aged. The matter came on before his Honour Judge Barbour for assessment only. She was a nurse. Her case came on for hearing in December 1991 and March 1992 and the verdict was announced fifteen months later, in June 1993. The total amount of the verdict is $341,580. The appellant's case consists of an attack on three figures. The first is the figure for general damages which was $85,000; the second was for past economic loss which was $78,000; and, the third is for future economic loss which was $135,000. As far as general damages are concerned, I am of the view that whilst the figure is very high it is not so high as to be outside his Honour's discretionary range. It is beyond doubt that the plaintiff suffered very serious injuries and her account of them was accepted by his Honour, as was her doctor's account of them. The disabilities she suffered from were grave and they are, unhappily, likely to continue. I would not accept that ground of the appeal. As far as economic loss is concerned, as first sight the appellant's case, which was put most attractively, is unanswerable. The economic loss was worked out apparently on the basis that her salary as a nurse, which she was before the accident, was $500 per week. The rate she would get in a lighter job at Fox Valley Medical Centre was $200 per week, leaving a difference of $300 per week. That was the basal figure which his Honour used in calculating both past economic loss and future economic loss. However, the $200 figure is a figure estimated on the basis of two days per week. Mr Russell took us to the evidence and submitted there is no reason why her residual earning capacity ought to be assessed as the ability to perform light duties type nursing for only two days per week. He conceded, of course, as he had to concede, that she had lost earning capacity and 2 UNREPORTED JUDGMENTS her residual earning capacity had to be assessed, but he submitted that there was no reason why that should be done on that basis. He pointed out that if one looked at all the medical evidence, and there was quite a considerable amount of it which was accepted by his Honour: Doctors Barry, Hudson, Mackie and Henke, while each of them said that she was only fit for light duties and could not do any bending, lifting or prolonged sitting, none of them said she was restricted to doing so only two days per week. On that basis, it seemed to me a successful challenge could be launched on the figure for past economic loss and on the figure for future economic loss but Mr Barry pointed out that this is an over-simplified way of viewing matters. As far as past economic loss is concerned, that comes in two slices. Past economic loss for 1986 to 1989 was $28,000. That is not challenged. Past economic loss for 1989 to 1993 was $50,000 and that was challenged. Mr Barry pointed out to us that the exercise which his Honour was undertaking was to work out a monetary value of the plaintiff's loss of earning capacity. The only evidence in effect which his Honour had before him was that she was capable of doing two days' work a week. Whether or not she could have done more work than two days per week, if it had been available, was hardly mentioned. Nor was there a great deal of evidence as to what extra work was available. The matter was not made any easier by the fact a subsequent unrelated difficulty, pericarditis, prevented her working at all. it is also true that the work marketplace was not entirely favourable to her as hospitals were closing wards and dismissing nurses. It is further true that if she went to do some other form of light duties she may have to be retrained. It is yet further true that there was a great difficulty with her competing in a general market amongst other able-bodied job seekers when she had significant disabilities. One might also mention that if the defendant was displeased at the notion of her disabilities being calculated on a two-day basis, one might have expected it to lead some evidence on the calculation, which it has singularly failed to do. Finally, if I may say so, one of her doctors in an earlier report, from which he never expressly recanted, said that she was fit not only for light duties only, but also for light duties only during restricted hours. It would, in my view, be an erroneous way to approach the matter to treat her lack of capacity as extending to five days of light duties. However, as far as past economic loss is concerned, one wonders about the correctness of his Honour's calculations of five days minus two, because it is perfectly clear that she could and did do two days per week in this period. It is a reasonable possibility that she could have done a little more work in some other capacity during that period if she had tried. It is just, I would have thought, in the interests of both parties, if one uses the figure of three days, instead of two, so that the $50,000 figure was reduced by one-third and became $34,400. As far as future economic loss is concerned, his Honour started with the $300 per week figure but in fact discounted it by just under a half, for reasons which nowhere appear except that the plaintiff was fully motivated and there would be advances in technology. Considering that the figure was very heavily discounted, I would not disturb the figure for future economic loss. In other words, on the three figures under challenge the only figure I would propose disturbing is the figure for past economic loss for the years 1989 to 1993 and this is reduced by the $17,000 figure which I have mentioned. That, of course, will have a flow-on effect in the calculation of interest which I am unable to do, but I am sure counsel can. UWRBW INSURANCE MINISTERIAL CORPORATION (FORMERLY GIO OF NSW) v ADAMS (Handley JA) The orders I propose are appeal be allowed, verdict and judgment set aside. In lieu of the verdict as it stands, the verdict calculated in the manner I have prescribed to take effect as from the date of judgment. As to costs, since technically the appeal succeeded but substantially it did not, in my view no order for costs should be made. Priestley JA I agree with what Meagher JA has said. I would only add, in regard to the period pre-trial, an element in my own thinking, leading me to the same conclusion as Meagher JA concerning the reduction he has proposed, is that there was a period when the respondent was not able to work for reasons which should not be brought home to the defendant. That seems to me to have been a material consideration along with the other matters mentioned by Meagher JA. Handley JA I agree with the previous judgments. Priestley JA: We will make formal orders in accordance with the figures that you have told us, if Mr Russell could bring up tomorrow typed orders in accordance with what we have said and what you have said, we will make the orders formally tomorrow. (1) Appeal allowed. (2) Verdict below to be set aside and verdict to be entered in manner set out in judgment and figures to be submitted by counsel. (3) No order as to costs. Counsel for the appellant: DJ Russell Solicitors for the appellant: GM Meadows Counsel for the respondent: CT Barry QC Solicitors for the respondent: Hickson Lakeman Holcombe