NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v MARTIN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY AP and CLARKE JA 7 December 1995, 7 December 1995 [1995] NSWCA 336 MOTOR ACCIDENTS ACT 1988 — APPEAL AGAINST QUANTUM AND PAST ECONOMIC LOSS — FUTURE EARNING CAPACITY Clarke JA This is an appeal from a judgment of Judge Kirkham sitting in Newcastle given on 15 September 1993. His Honour awarded a verdict in favour of the respondent in the amount of $261,416 and he ordered judgment accordingly. The notice of appeal lists relevantly five grounds of appeal but it is only the latter four which are pressed. They challenge his Honour's awards concerning past economic loss and future earning capacity. It is said that on the evidence his Honour should not have awarded any amounts for either of those components or, alternatively, that his awards were excessive. I am content to dispose of this appeal by saying that the appellant has failed to persuade me that his Honour fell into error in any relevant way. In deference, however, to the high quality and comprehensive nature of the appellant's written submissions I am disposed to state shortly some additional reasons which lead me to that conclusion. The respondent sued for damages arising from two traffic accidents. The first happened on 3 August 1980 and the second on 2 January 1986. During the court sittings at Newcastle the claim in respect of the first accident was settled and his Honour's judgment concerned only the consequences of the latter accident, as does this appeal. The respondent was born in 1949 and, after various manual jobs, was employed by the Australian Army between 1970 and 1975. After discharge from the Army he was mainly employed as a truckdriver and it was his contention that this was the only employment to which he was suited. In 1980 in the first motor vehicle accident he sustained what turned out to be a serious injury to his neck. In 1986 his injury, again serious, was to the lower back. The trial judge thought that the second accident may have aggravated his neck injury but concluded that the aggravation was minor and would only have lasted for a few months. The respondent claimed that the effect of both accidents was to extinguish his capacity to work as a truck driver. The appellant has contended that the first accident essentially destroyed the respondent's work capacity. In addition it submitted that prior to that first accident the respondent had a patchy work history and that, having regard to that factor and his work history following the 1980 accident, it was proper for his Honour to approach the assessment of damages in relation to the 1986 accident upon the basis that, apart from any 2 UNREPORTED JUDGMENTS injury, the respondent was only likely to work sporadically and, in the light of the 1980 injury, he would have been - the 1986 accident apart - unlikely to work at all following 1986. The first limb of the argument, that is, that prior to 1980 the respondent worked sporadically, cannot be supported. There are two reasons, in my opinion, why this is so. First, that issue was not contested in the trial and, accordingly, it is not open for the appellant to raise it here. Secondly, the only evidence that was given on the issue of his working prior to the 1980 accident suggested that he had been in steady employment prior to that time. Indeed his Honour's recitation of the pre-1980 history seems to support that view, and there has been no challenge to that recitation. What Mr Quinlivan, who argued the case for the appellant, has said is that the history did not deal specifically with a period of two years in 1977 and 1978 and that, given the respondent's evidence in cross-examination that he worked only for about twelve months in any of his jobs, there must have been a lengthy period of unemployment prior to 1980. I would, having regard to the fact that the respondent was speaking in 1993 about what had occurred in the late seventies and the lack of any challenge to the history which he recorded or any endeavour to show that there had been periods of unemployment prior to 1980, conclude there is no proper basis upon which a submission could be advanced and accepted that he had a patchy or sporadic work history prior to 1980. The other limb of the argument focuses attention on the 1980 accident and its consequences. It is true as the particulars filed by the plaintiff in relation to the first accident, which particulars were tendered in these proceedings, demonstrated that following the 1980 accident he had periods of unemployment and, in particular, a lengthy period between May 1984 and the time of the second accident. There does not appear to have been any close examination of the reasons for that unemployment but it is reasonable, I think, to infer that it flowed from difficulties in securing employment in the light of his injured neck. His Honour was, however, alive to that fact and he concluded that his incapacity following 1986 was a result both of problems flowing from the 1980 injury and problems flowing from the 1986 injury. He had to somehow apportion responsibility and, in the way the case was contested, he decided that each injury contributed equally to the respondent's total disability. Consequently, when he came to allow damages in respect of the impairment brought about by the low back injury, and having regard to the totality of factors in the case, he allowed the respondent only forty per cent of what he could otherwise have earned as a truck driver if uninjured and if working regularly and consistently in that employment. His Honour did not attribute expressly a percentage to the first accident but it is reasonable to infer that he would have regarded it in the same way. There was obviously, therefore, a further reduction of twenty per cent to take account of the many vagaries in the case. It was said, and this must have been a powerful argument before the trial judge, that the unsatisfactory nature of the respondent's evidence and his non- conformist approach to life should have called for a much greater reduction than the sixty per cent accepted by his Honour. I am not sure whether if I had been sitting as a trial judge I would, in the end, have acceded to that submission but that really is beside the point because his Honour considered, and I might say considered very carefully, that aspect of the evidence in reaching his conclusion. WHEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v MARTIN (Mahone? AP) It is not beside the point to mention that there was a very determined attack on the respondent's case. It was, in effect, said that not only was he exaggerating but he was inventing his problems and video films were shown of two occasions in the respondent's life. His Honour, however, considered all those aspects carefully and, in the end, rejected the suggestion that the case was essentially a fraudulent one. He did not, however, wholly accept the respondent. He thought that the respondent was exaggerating his problems and that there was a need to take account of that in assessing damages. His Honour reflected that need in the discount I have mentioned. Having regard to the general approach taken by his Honour, the substance of his reasoning, and the apparent appropriateness of his determination that the total incapacity resulted equally from the two causes, I am left in a situation where I am unable to say that there was an inappropriate finding by his Honour. I would be disposed to dismiss the appeal with costs. Mahoney AP | agree with what Mr Justice Clarke has said. Mr Quinlivan, for the appellant, went, I think, to the heart of the matter in his argument. His submission was, at least in part, that the incapacity of the plaintiff following the 1986 accident should not result. in a full award in damages because, had he not been injured in 1986, he may not have worked at all or would not have worked full-time. The suggestion was that less should be awarded for his post-1986 incapacity because it was to be inferred from his previous history that had he been uninjured in 1986 he may not have worked at all or full-time. There might have been two reasons suggested as to the basis of that inference: that he would not have worked because of the earlier accident and its effects, or he would not have worked simply because he was not disposed to work. The judge clearly took into account the effect of the earlier accident and apportioned the damages accordingly. The assessment of damages for the later accident was approached by the judge on that basis. No objection was taken to him doing so. No objection was taken to that as a proper basis of approach in the present case. It is, therefore, not necessary to pursue the correctness of that approach. The submission, effectively, was, I think, that it should be inferred that he would not have worked after the accident of 1986 because his previous working history showed he simply was not disposed to work. That was not put to him in cross-examination or in argument at the trial. As far as can be seen from what was said by Mr Montgomery, who was counsel at the trial - Mr Quinlivan was not - that matter was not litigated at the trial. I find difficulty in giving effect to that submission. I would not draw the inference which Mr Quinlivan's submission would suggest should be drawn from the evidence as it is. However that be, viewing the evidence as a whole, I agree with the conclusion that is proposed by Mr Justice Clarke. I would not come to a different conclusion. The orders of the court are those proposed by Mr Justice Clarke. Appeal dismissed with costs. COUNSEL: Appellant: A QUINLIVAN Respondent: R MONTGOMERY 4 UNREPORTED JUDGMENTS SOLICITORS: Appellant: GM MEADOWS 5 Respondent: WOOD ROBERTS, Newcastle