FAHEY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL SHELLER JA and COLE JA 6 March 1995 [1995] NSWCA 145 DAMAGES — future economic loss new trial limited to damages Sheller JA. The appellant, Terry John Fahey, appeals against the adequacy of the damages awarded in an amount of $253,050 to him by his Honour Judge Herron QC on 15 April 1992 in proceedings against the respondent arising out of a motor vehicle accident which occurred on 5 April 1987. The appeal is directed to the amounts awarded by his Honour for general damages of $50,000; past loss of earnings of $100,000; and future economic loss of $66,640. It is appropriate in the circumstances that I deal first with the amount of damages awarded by his Honour for future economic loss. When he came to deal with this aspect of the damages his Honour said that he thought it would be fair to approach the plaintiff's future loss of income earning capacity upon the basis that he has lost 25 percent of his income earning capacity. The plaintiff had sought what his Honour described as a 'much greater figure'. His Honour then went on to say that on the basis that the plaintiff, uninjured, wouldbe in receipt on an income in the order of $400 a week, that would result in a weekly loss of $100. His Honour then proceeded to apply the discount tables on the basis that the plaintiff had a working life from the date of trial of 20 years and by that means arrived at the amount to which I have referred. Part of the appellant's contention in this appeal is that the assessment of future loss of earning capacity at 25 percent is unsustainable. Prior to the 1987 accident the plaintiff had been an outstanding first grade rugby league player and had played first grade for some years with the Canberra Raiders. It was accepted that the injury led to his no longer being able to play rugby league. However, the trial proceeded on the basis that but for the accident his first grade rugby league career would have been limited to four further playing seasons beginning with the 1987 season. These seasons had passed by the time the matter came to trial. The amounts that the plaintiff would uninjured have earned during those seasons were taken into account in the assessment of past economic loss. There was material placed before his Honour about the plaintiff's potential to be employed as a coach after he retired from playing. His Honour said that the plaintiff was fundamentally an honest person, though he might have convinced himself that he was more injured than he was. There was no doubt that he suffered significant injuries in the particular accident. Those injuries consisted of what was described as a neck strain, being a recurrence of a pre-existing neck injury for which he had a cervical fusion; a lumbar sacral injury and a comminuted fracture of the left scaphoid bone. This last injury was very serious, particularly because the plaintiff was a left handed person. It had never been treated and had deteriorated during the period up to the trial. Evidence was given that treatment would involve removal of thescapoid vein and would require replacement by a silastic prothesis. His Honour accepted that surgery 2 UNREPORTED JUDGMENTS would result in some improvement. However there was no clear evidence as to how it is if this treatment were done it would improve the plaintiff's work ability. The evidence was that apart from the plaintiff's earning capacity as a rugby league player or as a coach his prowess was what his Honour described as 'quite 5 small'. He had done some work as a rouseabout for a shearer. He had done some shearing work and he had been employed as a builder's or brickie's labourer. It seems fairly clear from his Honour's judgment that he was satisfied that at least the plaintiff's neck injury made him unable to do heavy work or activity involving lifting and that the injury to his left wrist untreated would have the 10 same result. The plaintiffs evidence, which his Honour accepted, that he was unable to turn his neck without turning his back, seems to play a significant part in his conclusion. However, during the trial his Honour was shown a short film taken on 11 August 1988 of the plaintiff in the streets of Wellington, New South Wales where 15 he had moved some time after the accident. His Honour said that he did not think it would be unfair to say that although the film was very short, it showed the plaintiff moving about in a normal fashion and there was certainly nothing to indicate that he had the restriction of movement to his neck. His Honour observed: This is a film but of a few seconds perhaps of the plaintiff being in the streets of Wellington but what was presented was a very healthy and fit person moving about without any apparent restrictions.""'Then his Honour said: That is the problem in this case as I see it — the plaintiff does present as an extremely fit and big man and one wonders whether if things were as bad with him as he says they are, whether he could possibly present as he does. His Honour remarked that the case 'bristled with all types of imponderables'. The plaintiff presented as a fit and well person. He said: I accept however that he has the difficulties about which he tells me in relation to his neck and particularly in relation to his wrist. It seems to me that the neck and indeed the back, although having regard to the medical evidence, I am not sure whether that is a great problem with him, would prevent him from doing work involving heavy lifting and bending. If his wrist is improved by surgery and again that is left, if I can use the expression, "up in the air" Dr Connolly does not really indicate what the prognosis will 35 _ be in relation to the operation which he had in mind but I would assume that it would certainly improve the plaintiff's present condition. After dealing with past economic loss, his Honour dealt with loss of future earning capacity. If one accepts the finding that the plaintiff was not fit to do heavy work or engage in lifting, it seems to me that an assessment of a loss of 40 only 25 percent of earning capacity is unsustainable for a man who, apart from his rugby league earning capacity, was trained only to do work of a heavy nature. On that finding that part of the quantification of damages could not stand. However, there remains the question as to what this Court can do, whether this is a case appropriate for re-assessment or for re-trial. I have passed straight to the 45 assessment of damages for loss of future earning capacity because this creates, it seems to me, a particular problem. Read as a whole, it seems to me that his Honour had some doubt about the plaintiff's evidence concerning his earning capacity. Mr Tonner, who appears for the respondent, has relied uponthis to say that really his Honour was discounting the earning capacity back to 25 percent by 50 taking into account those doubts. With all respect to his Honour it is difficult, if not impossible, to derive this from his reasons. If we were to accept the argument WRUIEY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Sheller JAB that has been put to us about past economic loss I do not think the Court would have any difficulty in re-assessing the damages on the evidence in accordance with the submissions that have been put to us. This is also true in relation to the award of general damages. However, in assessing its loss of future earning capacity his Honour may have taken into account his views about the credibility of the plaintiff at least to the extent to which he said that he was unable to work. It does not seem to me, in view of this, that this Court can re-assess the matter without having seen the plaintiff and without having had the opportunity to weigh up his evidence against the short film and the histories in the various medical reports that were tendered. In my opinion his Honour's assessment of damages for the loss of future earning capacity was wrong. They must be reassessed. Because that will involve the credit of the plaintiff this Court cannot undertake a reassessment on this appeal. Accordingly the appropriate order is that there be a new trial of the matter limited to damages. I should make it plain that in nothing I have said I intended to express a view one way or another about the appropriateness of his Honour's assessment of damages for past economic loss or about his assessment of the amount that should be awarded for general damages. The orders that I would propose are that the appeal be upheld, that there be a new trial of the proceedings limited to damages, that the respondent pay the appellant's costs of this appeal and that the costs of the first trial be a matter for the judge hearing the new trial. If qualified, the respondent is to have an order under the Suitors" Fund Act. Cole JA. I agree with those proposed orders and the reasons given. Sheller JA. The orders will be as I have announced them. Orders accordingly. Counsel for the appellant: FH Callaway QC/GH Johnson Solicitors for the appellant: McGirr James Hall and Associates Counsel for the respondent: RC Tonner Solicitors for the respondent: Government Insurance Office of NSW