SKINNER v BARAC SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 5 MAHONEY, CLARKE and MEAGHER JJA 4 July 1995, 4 July 1995 [1995] NSWCA 434 Motor vehicle accident — Appeal against award for future economic loss "cushion" and assessment of injuries as 28% of a most serious case — No question of principle Appeal from District Court — Motor vehicle accident — Appeal against award for 15 future economic loss "cushion" $20,000 and assessment of injuries as 28 per cent of a most serious case — Appeal dismissed — No question of principle. ORDER Appeal dismissed with costs. 20 Mahoney JA On 19 February 1991 the plaintiff was injured in a motor vehicle accident. He sued the defendant in the District Court for damages. Liability was not contested and on 15 December 1994 his Honour Judge Smyth gave judgment for the plaintiff in the amount of $78,729. The judgment was made up as follows: 25 | Future economic loss $20,000 General damages $56,660 Past wage loss $1,189 Agreed out of pockets $643 30 Fox and Wood component $237 Those components aggregate the sum to which I have referred, $78,729. The appeal has been brought to this Court against his Honour's judgment. The appeal is being pressed on two grounds, the first is that the general damages are, for the reasons to which I shall refer, beyond what was appropriate and the 35 second is that the amount of $20,000 for future economic loss, as I have described it, is too great. The judge set out the facts in his judgment and, in a case like this, it is not necessary for me to repeat them in detail. They are set forth in the paragraphs of the judge's judgment commencing at 83S and ending at 84L, and I shall treat 40 those as being incorporated in my judgment. The final result, and I state ie matter in a very summary form, is that the plaintiff has a significant shoulder injury and has some difficulty with his cervical spine. The judge found that there is difficulty with the shoulder joint which causes pain, probably either due to strain or minor arthritic changes and, as he said in his 45 judgment, there is little doubt that there is an arthritic condition which has developed as a direct consequence of the accident. The judge accepted the plaintiff as a witness of credit, and the matter is to be approached on that basis. He recorded that the plaintiff appeared to suffer a "great deal of discomfort" in the witness box when he had been giving evidence for about an hour, and his 50 Honour took that into account, no doubt, as a measure of the difficulties under which the plaintiff suffered. 2 UNREPORTED JUDGMENTS There is a possibility of future operation to the joint. Reference is made to that in the judge's judgment. The doctors could not, in my view of their evidence, give any assurance that the operation would cure the plaintiffs condition. Dr Memon, in his report, seemed to have been of the view that the operation "may" cause a change. His Honour referred to Dr Memon's evidence, and I think it is appropriate to approach the matter on the basis that there is no certainty that the proposed operation would effect the change. The plaintiff is not disposed at the moment to undertake that operation and it is not suggested that he was legally unreasonable in that attitude. Against that background it is necessary to approach the submissions that have been made by Mr Holmes QC for the appellant. I have described the amount of $20,000 as being an amount for future economic loss. That, I think, is an appropriate categorisation of it. The plaintiff left school with no particular qualifications and after he left school, as he said in his evidence, he undertook labouring work, which was heavy work, involving the fitting of transformers and matters of that kind. It was process work. In answer to the question whether much heavy lifting was involved he answered succinctly "lots". In 1986 he started "doing a bit of work for the Royal Prince Alfred Hospital", initially as a theatre orderly and, subsequently he went to a TAFE college between 1990 and 1993 and obtained a certificate which is described as an anaesthetic technician diploma. It is not clear precisely what that qualifies him for, that is the detail of it has not been set forth in the evidence. But his work involves being, as he said, responsible for the patient's safety, positioning, other hazards that may occur, and he is to assist the anaesthetist. This involves, as he said "much lifting". He is in the condition where, because of his shoulder condition, he is not able to do what ordinarily he would do and he is able to carry out the work because, as I shall describe it, of the sufferance and assistance of the other people who are involved. He has referred to the kind of work which is involved in the present occupation and to the difficulty which it causes him. He has referred to the possibility of going into business as a landscape gardener but in his evidence he pinpointed the difficulty which that involves, the lifting of weights, the carrying of things and so on. In the circumstances it is apparent, in my opinion, that because of the accident he has suffered a significant contraction in his economic capacity; it was for this, inter alia, that the sum of $20,000 was awarded. I think also that the judge took into account, in assessing that sum, the likelihood or possibility that he would, in future, undertake the operation to which reference has been made in the evidence. There was, I think, no detailed evidence as to the precise cost of the operation; that matter was left undetailed. But, no doubt, it would be a significant cost to him, and in assessing the appropriateness of the award of $20,000 it is proper to bear that in mind. It is difficult to assess the affect which the injury will have upon him and the effect overall of his loss of economic capacity. The judge did not approach the matter in one of the normal ways in which such matters are approached, namely by trying to assess the weekly loss of income which will flow from the diminution of his economic capacity. He saw the better approach to be to give, as he described it, a cushion against future economic loss. The other approach would, perhaps, involve an attempt to give a greater degree of certainty to the quantification of economic loss in the future than the subject matter would bear. I think that in the circumstances to attempt to assess a weekly sum as the loss URJ SKINNER v BARAC (Meagher JA) 3 which he will suffer would involve attempting to give too much certainty to evidence which is in its nature uncertain. Having said that it is relevant, but of course not determinative, to take into account that the amount awarded, assuming it to compensate him for economic loss for the remaining period of his working life (30 at the date of trial to, say, 60 or 65) would be broadly of the order of $25 to $30 per week, depending upon the assumptions that are made. In all the circumstances I do not think that the sum is beyond the range of a sound discretionary judgment. I think that the sum is an appropriate sum for assessment of the future economic loss and I will not uphold the appeal on that ground. The next attack upon the verdict was the attack upon general damages. The judge, in the course of his judgment, was required by the existing legislation to assess the injuries that the plaintiff had suffered - as the judge did, I put the matter in general terms - as a percentage of a worst possible case, a most serious case. His Honour, taking that approach - no objection has been taken to the principles on which he acted - arrived at an assessment of them as twenty-eight per cent of, as he described it, "the most serious case". His Honour, on that basis, awarded $56,660. It has been submitted that this amount is too high an assessment. The assessment is certainly high. It is probably somewhat higher than I would have myself been disposed to fix. But matters of this kind are discretionary matters and the approach to be adopted by an appellate court to assessments made by judges of these matters is well settled. The court must look - I put the matter again in most general terms - to whether the assessment is within the range of the sound discretionary judgment; whether it is, in other words, an assessment with which this Court, sitting on appeal, has reason to interfere. Ihave had regard, amongst other things, to the evidence given by the plaintiff as to the pain and disability that results from his injury. As was pointed out in argument he was asked about matters of this kind. He said that he is not ever free from pain in the right shoulder and has not been free from pain since the accident; that the pain becomes worse when he does normal things, such as helping to lift patients off tables and so on; and that he refrains as much as possible from using the arm. When he uses it it is always, as he described it, "very painful and sore". He was asked to give an assessment of the pain upon a scaling of 1 to 10 and his assessment was probably level 5. The judge obviously accepted this assessment. In all the circumstances I do not think an assessment of twenty-eight per cent is one which is beyond the range of a sound discretionary judgment. It is not one with which I think this Court should interfere. In all the circumstances I do not think that this is a case in which the appeal against the judgment should be upheld. I would propose that the appeal be dismissed with costs. Clarke JA I agree. The awards in this case were amply and properly supported by the judge's reasons and no error has been shown in relation to those reasons. In summary, despite Mr Holmes' valiant attempt on behalf of the appellant to find error, I regard this appeal as totally lacking in merit. Meagher JA I also agree. Mahoney JA: The order of the court will be that the appeal is dismissed with costs. Appeal dismissed with costs. UNREPORTED JUDGMENTS Counsel for the Appellant: MF HOLMES QC Instructed by: ABBOTT TOUT Counsel for the Respondent: AJ LIDDEN Instructed by: MAXWELL BERGHOUSE AND IVES