WHITELEY v BODYCOTT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ and KIRBY P 8 September 1995, 8 September 1995 [1995] NSWCA 512 DAMAGES — CAUSATION — loss of earnings and diminution of future earning capacity — whether error in finding causal relationship between loss and accident — no error. DAMAGES — CAUSATION The issue on the appeal was whether the trial judge had erred in concluding that the respondent's loss of earnings and diminution in future earning capacity was casually related to the motor vehicle accident he had been involved in — HELD — There was no error in the factual finding- No question of principle involved. ORDERS Appeal dismissed with costs. Gleeson CJ The issue in this appeal resolves itself into a question of fact relating to the matter of causation. The relevant principles are summarised in Medlin v State Government Insurance Commission (1995) 182 CLR 1, especially at 6. The respondent, who was the plaintiff in an action in the District Court, was awarded damages for personal injuries by his Honour Judge Patten in the sum of $63,460. There were three components in that amount. The first was an award for non economic loss of $21,460. The second was an award for loss of earnings up to the date of trial in an amount of $12,000. The third was an award in respect of diminution in future earning capacity in an amount of $30,000. No challenge is made on this appeal to the element of $21,460. The challenge is to the amount awarded in respect of loss of past earnings and the diminution in future earning capacity. In order to indicate how the issue of causation arises it is necessary to make some brief reference to the facts of the case and the findings of the trial judge. The facts were found by the trial judge as follows. The respondent was born on 21 July 1976. He lives in the country. He was educated at Cootamundra. He left school at the age of sixteen. He had suffered a neck injury whilst he was at school as a result of playing football. He suffered that injury when he was aged about ten. The injury ceased to give him concern by about 1987. In 1982, following the end of his schooling, the respondent decided to become a carpenter and became indentured as an apprentice. He worked for the Riverina Group Training Company. He was in the second year of his apprenticeship at the time he had the motor vehicle accident which gave rise to these proceedings. It is unnecessary to go into the details of the accident. Suffice it to say he was a passenger in a car that suffered damage as a result of being driven off the road at an excessive speed. Senior counsel for the respondent helpfully showed us a photograph of the extremely damaged motor car, but it has not been of great assistance in resolving the issue of causation presented by senior counsel for the appellant. 2 UNREPORTED JUDGMENTS Following the accident the respondent was taken to the Cootamundra Hospital where he was attended to and he returned home. He was off work for about one week. The principal physical consequences of the accident involved soft tissue injury to the neck and to the back. He went back to work notwithstanding the neck and back injuries but in November 1993 suffered a fall at home and sustained some broken ribs. That caused him to cease work and he never resumed his apprenticeship. His indentures were terminated. Patten DCJ said: "The evidence as to what precisely led to this termination was unsatisfactory and I am unable to conclude positively that it was as a direct result of the subject accident. I accept however that the plaintiff was having difficulty in performing the more arduous aspects of his work and that he genuinely wanted to complete his apprenticeship." The respondent gave evidence that he was offered a job in Wagga at Christmas 1993 which would have enabled him to resume his apprenticeship. He declined it for reasons related to problems of going to work at Wagga. With some minor exceptions he was substantially unemployed between November 1993 and November 1994. The exceptions were as follows. In January 1994 he took on a heavy labouring job but had to give it up because of his back pain and in mid 1994 he spent a short time marking sheep. He was able to do that because he wore a back brace. Since November 1994 the respondent has been employed by Cootamundra Components. He does unskilled labouring work involving the assembly of cabinets. He is able to work an eight hour day but continues to experience back pain. Patten DCJ made the following finding: "Nonetheless however I accept the plaintiff as a witness of truth. I accept that he was in good health, capable of carrying out the full range of his apprenticeship duties as at the date of the accident. I also accept that the back pain that he has suffered in the period since the accident is causally connected to it." In relation to the award of non economic loss which is not challenged his Honour said: "The plaintiff, I am satisfied on the probabilities, suffered a significant injury in the subject accident which continues to produce back pain and has interfered with his capacity to earn income. In my opinion, within s79(1) of the Motor Accidents Act his capacity to lead a normal life has been significantly impaired. However the medical evidence, at least in its preponderance, to me signifies that his condition will gradually improve with appropriate exercise. There is no evidence that he suffered other than soft tissue injury. " The medical evidence that was accepted by Patten DCJ included the following evidence of Dr Middleton: "While his symptomatic complaints continue this man could not however be considered fully fit for work or other activities involving heavy or repeated lifting, repetitive bending, twisting or other movements, jarring or prolonged static posturing of his spine and his description of his symptomatic problems with his return to carpentry duties would be consistent with resulting from his back and neck disorders attributable to the motor vehicle accident. Clearly with these symptomatic complaints he would have some difficulty accessing employment as a carpenter because he would not be fully fit for the full range of carpenter duties (whether as a trained carpenter or as an apprentice). He lacked any higher level URJ WHITELEY v BODYCOTT (Kirby P) 3 educational attainments, training or skills to suit him for more sedentary physically varied work (such as clerical work). " The amount of $12,000 in relation to past loss of earnings was arrived at by Patten DCJ in the following manner. The difference between what the respondent could have earned if he had continued in his apprenticeship and what he in fact earned up to the date of trial was $18,183.74. His Honour said: "T am however not persuaded that the plaintiff is entitled to be allowed the whole of that sum as in my view other factors including his broken ribs interfered with his earning capacity during the period. In relation to the period from the date of the accident to the date of trial I allow the plaintiff the sum of $12,000." In relation to future earning capacity Patten DCJ found that the respondent's disability was not permanent and was likely to be of relatively short duration. He took the view that the appropriate course was to award him a cushion or buffer for at least a time as he will not be able to earn as much as he would earn if he were a fully qualified tradesman. Accordingly a sum of $30,000 was allowed. The challenge to both of those awards is along the following lines. For relevant purposes senior counsel for the appellant submits this ought to be treated as what is in another context sometimes called a closed period claim. Apart from the week or so off work immediately after the accident the respondent's unemployment up to November 1994 and his diminished earnings since he obtained a job with Cootamundra Components are not causally related to the accident. He only works for Cootamundra Components as an unskilled labourer because he lost his apprenticeship. He lost his apprenticeship because he broke his ribs and, for reasons unrelated to the motor vehicle accident. He was not able to resume his apprenticeship because he decided, for reasons that might have been good and sufficient to him, but that were not connected with the negligent conduct of the appellant, not to take up a job that was offered to him at Wagga. Patten DCJ evidently reasoned, as a matter of fact, on the basis of evidence before him that there was a causal connection between the motor vehicle accident and the respondent's unemployment over the year up to November 1994 and, in addition, his ability to work for Cootamundra Components only as a labourer. The issue of fact that his Honour had to address was not uncomplicated. He was dealing with a young plaintiff who, as Dr Middleton said, had no particular earning capabilities other than those arising from the use of his hands and other parts of his body. He lives in the country where people who become unemployed can find it extremely difficult to obtain alternative employment. He had in truth lost his job with the company to whom he was indentured by reason of the circumstances which Patten DCJ did not think causally related to the motor vehicle accident and he had made a decision in relation to not taking up a job at Wagga. On the other hand medical evidence, which Patten DCJ was entitled to accept, showed that he was, up to the time of the trial and would at least for some time thereafter remain, unfit for work as a carpenter by reason of his back problems. He tried heavy work and encountered those back problems and the conclusion of Patten DCJ that his loss of income up to November 1994 and his reduced income after November 1994 was causally related to the back injury he sustained as a result of the motor vehicle accident was a conclusion that was open to his Honour on the evidence and has not been demonstrated to be in error. I would propose the appeal should be dismissed with costs. Kirby P I agree. 4 UNREPORTED JUDGMENTS Gleeson CJ: The order of the Court is that the appeal will be dismissed with costs. Appeal dismissed with costs. COUNSEL: APPELLANT: T Poulos QC/G Bellen 10 RESPONDENT: B Toomey QC SOLICITORS: APPELLANT: Bruce and Stewart Solicitors 15 RESPONDENT: Walsh and Blair Solicitors253545