NSW INSURANCE MINISTERIAL CORPORATION v ROBERTSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY and MEAGHER JJA 16 March 1995, 16 March 1995 [1995] NSWCA 337 DAMAGES — APPEAL QUANTUM — APPLICATION FOR ADJOURNMENT — REFUSED — EXERCISE OF DISCRETION BY TRIAL JUDGE. FACTS: Appellant challenged finding of quantum. HELD: (1) Neither the job hopping character of the plaintiff/respondent's work history nor the plaintiffs drug use is sufficient in these circumstances to reduce the award of damages. (2) The decision of the trial judge to disallow an application for adjournment to allow the appellant/defendant expert witness to supplement his report by giving oral evidence did not involve any incorrect exercise of discretion by the trial judge. (3) In the assessment of economic loss a rough global figure rather than mathematical accuracy is sufficient. (4) The assessment of future care and administration of costs is governed by the principles in The Government Insurance Office v Rosniak (1992) 27 NSWLR 665. Meagher JA This is an appeal by the NSW Insurance Ministerial Corporation, which was formerly the Government Insurance Office of New South Wales, against an award of damages in favour of the plaintiff/respondent in the sum of $579,000. This arose out of a motor vehicle accident which took place in 1984 in respect of which the appellant is liable. The questions we are dealing with relate to quantum only. The figure of $579,000 is made up of the following items: General Damages $150,000 Past Economic Loss $100,000 Future Economic Loss $100,000 Future Care $200,000 Future Medicals $25,000 Administration Costs $4,000 The appellant objects to the first three items in that list. As far as general damages are concerned, I must admit to a failure to understand any basis for a claim that $150,000 is too generous. If anything, it seems to me somewhat on the modest side. The sequelae of the accident, as far as the plaintiff was concerned, are truly horrendous. The plaintiff was a normal girl who was interested in outdoor manual work, was good at surfing, water sports and also in running, horseback riding and springboard diving. She had always been healthy and energetic. Before the accident, the plaintiff had no serious injury and, after the accident, she was transformed. She had a serious psychiatric illness which was variously described by different experts and which his Honour found, on the evidence, was due to the 2 UNREPORTED JUDGMENTS accident. She had mouth, teeth and jaw problems, she began to have epileptic fits, she had swollen legs and arms, she developed acrophobia, memory loss, fatigue, her personality began to be aggressive, she suffered from inability to read, she had pain in the head, ribs and right upper and lower limbs and she had loss of hearing in her right ear. After the accident the plaintiff has adopted a lifestyle which involved playing no sport and no activity. She has difficulty in communication, with memory and with the organisation of trivial tasks. She sometimes locks herself in at home and she loses money. She has a limited range of jobs which she is able to do and in general, she requires supervision. Quite apart from the extensive medical treatment she needs, it would seem that his Honour was acting within the discretionary range by awarding $150,000. The questions of past and future economic loss, as far as the appeal is concerned, may be taken together. The appellant submits that both those figures are too generous because neither takes into account the two factors which his Honour should have taken into account, that is, the plaintiff's poor work history and her history of drug abuse. The first objection, I think, can be readily dealt with. On the facts there simply is no poor work history. In so far as one can work out the evidence, it seems that whilst the plaintiff indulged in a certain amount of job hopping, she was working for at least 8 of the 11 years which were examined at the trial. There is no reason why his Honour should have assumed, in my view, that that sort of pattern would not continue. In fact, his Honour was somewhat severe in that if on one analysis either the figure he chose for past economic loss or the figure which he chose for future economic loss, he must have discounted the figure at which he arrived by 50 per cent or more in each case. That is, in effect, assuming that both between accident and trial and between trial and the end of her working life she would have been employed at the most half of the time. I do not see why any discount more savage than that should be applied. The second aspect which we were asked to take into account in the challenge to those two figures was the plaintiffs drug abuse. If one looks at the evidence, the facts disclose that on three occasions between, I think, 1974 and 1980 she was convicted of the offence of indulging in marijuana smoking but her sworn evidence is that she did not do it generally. That is where the evidence is at and there is no reason to suppose that her indulgence in the habit was any more substantial. There is no evidence whatever from any reputable doctor that her indulgence on these three occasions had any particular effect on her. The summary of the matters therefore is that so far as the appeal is concerned, neither the general damages figure should be reduced nor either of the economic loss figures ought to be reduced and that, it seems to me, involves the end of the main part of the appeal. There was one further matter raised in the appeal, however, that was not really a challenge to any specific figure. It was a challenge to the refusal of his Honour to grant an adjournment to enable the defendant's expert witness, Professor Jones, to lead evidence as to future care which would have contradicted that led by the plaintiffs evidence from Dr Ali. The actual circumstances in which this took place had been examined with some care. Put broadly, it amounts to this: That in August or September 1993, during the trial his Honour granted an adjournment after hearing Dr Ali to permit URJNSW INSURANCE MINISTERIAL CORPORATION v ROBERTSON (Mahoney JA) 3 the defendant to allow Professor Jones to interview the plaintiff with a view to either submitting a report or giving oral evidence, or both, as to the cost of future care. By 6 December, when the matter finally came before the Court again, it transpired that Professor Jones had interviewed the plaintiff in the interim and had produced a long report which dealt with everything except the one matter on which his Honour had sought advice. That report went into evidence. However, the defendant sought to have Professor Jones give oral evidence as well. Unfortunately, on 6 December, there had recently been a death in the family of a relative of Professor Jones for whom Professor Jones was the executor. His Honour realised the unfortunate circumstances which arose and realised that they could hardly be attributed to any fault of Professor Jones, or indeed of the defendant. However, in all of the circumstances, his Honour declined to accede to the application for an adjournment and, in my view, no sound attack has been made on that exercise of a predominantly discretionary judgment. I would also recommend that the appeal as to his Honour's judgment on that point be rejected. On the cross-appeal of the defendant, two matters were substantially dealt with. One was concerned with part economic loss. Mr Timbs QC pointed out to us - and this is undoubtedly true - that if his Honour discounted for half the time in between accident and trial, he would have reached a figure of $118,723 rather than $100,000 and it is also true that his Honour did not explain why that discrepancy existed. However, despite the mathematical accuracy of Mr Timbs' attack on his Honour's reasoning, I do not think that that ground of appeal ought be upheld because his Honour was not choosing a precise mathematical figure but merely a rough global figure - that it was inaccurate to some extent when viewed mathematically is really beside the point. On the question of future care and administration costs, the law on this matter at the moment is governed by a decision in this Court in The Government Insurance Office v Rosniak (1992) 27 NSWLR 665. Applying those principles, the ultimate figure to which the plaintiff is entitled should be the figure of $579,000 plus the sum of $4,000, $11,790 (without any deductions) and $33,757.91 making a total of $628,547.91. The appellant should pay the costs of the appeal and the cross-appeal. I direct an order not be taken out for seven days in order to enable the parties to check the mathematical accuracy of what I have said. (Noted: Mr Timbs QC made application for indemnity costs arising as a result of a Calder Bank letter which he tendered without objection from Mr Laughton) I will amend my judgment by adding that the respondent should have costs on a solicitor and client basis as from 3 March 1995. Mahoney JA I agree in general with what has been said by Meagher JA and with the order he has proposed. The central fact in this case, in my opinion, is that referred to by the trial Judge in his judgment at page 326 of the Appeal papers. His Honour said: "I find that the plaintiff does have a substantial continuing disability which is a consequence of a serious disorder of the mind, whether it be organically based or psychologically based or a combination of both". His Honour then said that on the evidence no other cause had been shown for this condition other than the motor vehicle accident. 4 UNREPORTED JUDGMENTS There has been no appeal against that finding. That being so, the consequences of the accident cannot be attributed to the plaintiff's physical or psychiatric condition prior to the accident. The matter must be approached on the basis of what the Judge said. In those circumstances I see no reason why the awards for general damages and past and future economic loss should be interfered with. I agree with what has been said by Meagher JA. As to the question of an adjournment, this was - as the Judge was conscious - a matter for his discretion. In the circumstances, no error of principle has been shown to vitiate the exercise of the Judge's discretion. I agree with what was said by Meagher JA during argument in relation to the adjournment. I see no reason why, the opportunity being available to provide a written report and otherwise, it was necessary to have a further adjournment for an indefinite period in order to allow Professor Jones again to attack the problem to which his attention had previously been directed. As to the administrative expenses, the case of The Government Insurance Of ice v Rosniak (1992) 27 NSWLR 665, is the current authority of this Court. Upon the basis that that is a ruling precedent I agree with the orders which have been proposed. The orders made, therefore, will be those proposed by Meagher JA. (1) Appeal and cross-appeal dismissed with costs and the respondent to have costs on a solicitor client basis from 3 March 1995. (2) The plaintiff to be awarded a sum of $628,547.91. Counsel for the Appellant: GA LAUGHTON/ C HODGSON Instructed by: GM MEADOWS Counsel for the Respondent: JA TIMBS QC/M WILLIAMS Instructed by: GIBSONS