MOTT v DAVEY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COLE JA and GILES AJA 22 March 1995, 22 March 1995 [1995] NSWCA 301 No question of principle. Cole JA In this appeal two matters were argued. The first was the quantum of general damages and the second was the amount allowed by his Honour of $100,000 for future loss of earning capacity. The appellant has had a sad life and a history of the problems which have beset her prior to the two accidents with which these appeals are concerned is fully set forth in his Honour's judgment. The appellant was unfortunate enough to be injured in two accidents which were close together, the first being on 29 June 1984 and the second on 6 October 1984. Liability is not in issue. In relation to the first accident the appellant suffered an injury to her wrist which continues and has left a weakness and stiffness and some pain associated with it. She also suffered some trauma which produced some emotional disturbance for a short period of time but this had significantly quietened by the time of the second accident three months later on 6 October 1984. The plaintiff was born on 3 August 1937, was aged almost forty-seven at the time of the first accident and was forty-seven at the time of the second accident. She was admitted as a solicitor in 1971. Prior to the accident she was working part-time for two firms of solicitors and, in addition, was doing legal costing work for others. She had been divorced in 1978. She had two teenage children at the time of the accident and, as his Honour recounted, she had had significant bouts of pre-accident reactive depression in 1961, 1966, 1975 and 1976, 1979 and 1981. Nonetheless she had successfully negotiated many of those depressive circumstances and had been conducting her life as a solicitor and cost specialist. His Honour found that with those capacities she had the potential to earn approximately eighty-five per cent of that earned by the average solicitor in New South Wales. As a result of the two accidents - and for my part I see no reason to distinguish between them and will approach the matter in the same way as his Honour did - the appellant suffered some form of brain damage which resulted in a cognitive disorder. His Honour identified the issue correctly in the following terms: "The principal medical issue is whether her continuing cognitive problems are causally related to the motor vehicle accidents or whether, apart from the episode of depression that led her to consult Dr Phillips again in December 1984, such problems are reflections of her lifelong illness rather than any long term effect of the accident."! His Honour made a number of findings: 1. Appeal Book, at 366 2 UNREPORTED JUDGMENTS "1. Prior to the motor vehicle accidents in 1984 I find that the plaintiff was a person vulnerable to episodes of depression triggered off by episodes of stress from which, on each occasion, she substantially recovered. 2. I find she was subject to some relatively minor physical disabilities which did not, as at 1984, cause any appreciable diminution in her earning capacity. 3. I find that immediately prior to these accidents she was able to cope with her professional obligations and her personal life. 4. I find that as a result of the first accident she suffered relatively minor orthopaedic injuries from which she recovered some months later except in relation to the injury in her left wrist which has caused a degree of continuing discomfort ever since and is permanent. 5. I find that the injuries suffered in the first accident rendered her mentally incapable of properly performing the work required of a solicitor because of cognitive impairment and depression. 6. I also find that she suffered a degree of brain damage of the type described by Dr Phillips which compounded by the effect of her depression has rendered her unable to cope with her employment as a solicitor or to efficiently perform the task of legal costing. 7. I am satisfied that until June 1992 she applied her best endeavours to continuing with her legal work, principally in the field of costing, and that since then she is unfit for employment taking into account the impairment of her cognitive function, particularly concentration and memory, which have, added to her other limitations, rendered her unfit for any form of employment."2 It has been said his Honour may have been in error in Finding 5 where he referred to the first accident, it being put that he should have been referring to the second. It seems to me not to matter in circumstances where the injuries were so close together, where the consequences of both accidents were approached by his Honour in a cumulative fashion and where, as here, there was one insurer. The argument addressed to the Court in relation to general damages was that the effect of the accidents was to result not only in the cognitive disorder which his Honour found which reduced her capacity, in consequence of depression, to conduct her former employment but that it also resulted in a significant personal consequence to the appellant sounding in a loss of self-esteem and emotional problems which led her to disregard some aspects of her normal life. She withdrew, to some extent, from the life which she had previously led. The appellant approached the question of general damages by taking the sum of $60,000 which his Honour awarded as general damages for both, and treating, as his Honour did, a division of that sum into two applying $30,000 to each accident. It was then said that $30,000 was an appropriate figure for the consequences of the first accident which resulted in the wrist injury and some short term cognitive affectation. The consequence was that the remaining $30,000 general damages for the second accident, which resulted in the longer term cognitive deficiencies and changes in personality, was clearly inadequate. It is, in my view, an error to approach the question of general damages by dividing it in that way. His Honour made it clear that he regarded the question of general damages as one to be assessed taking into account both accidents and, in that respect, in my opinion his Honour was correct. The division of $30,000 for each accident was, as his Honour put, purely a nominal division for purposes of 2. Appeal Book, at 366-275 URJ MOTT v DAVEY (Cole JA) 3 the two pieces of litigation which were before him. The question, thus, is whether the $60,000 figure is a figure which is appellably wrong. In my view it is not. There are a number of circumstances which his Honour took into account and which may be pointed to. First, the effect of the cognitive deficiency reflects principally in a diminution in future earning capacity and the consequences in that respect are reflected in the award under that heading. Second, the appellant was vulnerable to episodes of depression from stressful situations even if she had not suffered motor vehicle accidents. That was established by her past history. Third, I think it can fairly be said that the quality of the appellant's life prior to the accident was diminished from that which one would normally expect. Accordingly, it seems to me, that the figure of $60,000 which his Honour awarded is within the range available to him and is not such that this Court should interfere with it. The remaining issue relates to damages for loss of future earning capacity. His Honour awarded $100,000. As I have said the appellant at the time of trial was fifty-seven years of age. She had part-time employment with two solicitors and she had, in the past, been engaged as a cost consultant. In fact in 1992, prior to the trial, she had ceased those employments and been granted an invalid pension but it is said, of course, those sequelae were the result of the two accidents. The economic loss which the appellant suffered was not disputed to be other than $685.88 per week. If one applied the five per cent discount tables for the remaining eight years assuming the appellant worked to the age of sixty-five years that would produce a figure of $237,040 before any discount was taken for vicissitudes. The major question in relation to this future economic loss was to what extent the figure $237,040 should be discounted. His Honour held that the discount should be "at least fifty per cent". The figure of $100,000 which his Honour awarded represents a discount of 57.8 per cent. The appellant has contended that this discount is too high having regard in particular to the circumstance that prior to the accidents she had successfully managed the various difficulties to which she was subjected and had been able to remain in continuous employment as a solicitor and costing specialist for some ten years prior to the accidents. Nonetheless I do not think that the figure of $100,000 awarded by his Honour in consequence of the discount that he made is appellably wrong. Discounts of fifteen per cent which are the norm assume that a person is of normal health and in normal employment. The appellant was not in either of those circumstances. She had a long and extensive history of vulnerability to episodes of depression from stressful situations. She was engaged not in full-time employment with a firm doing normal legal work, but with part-time employment in two small practices, which practices were liable to change, and which practices were no doubt liable to the effects of recession. His Honour took into account the economic climate and the circumstance that the legal profession had, in the years preceding his Honour's decision, suffered adversely from the recession, and that was a factor which must be considered for the future. His Honour had regard to and, took judicial notice of the fact, that retrenchments in legal employment were common and there was also evidence before his Honour that the two practices by which she had been employed prior to the accidents had changed in their character. That circumstance made clear that 4 UNREPORTED JUDGMENTS it was open to his Honour to take the view that the prospect of the appellant retaining the two part-time jobs which she had with those practices was subject to significant doubt. His Honour did not make a finding regarding whether or not the appellant would, in truth, work to the age of sixty-five years. It seems to me that having regard to her prior illnesses and susceptibility to depressive episodes, there must be a significant risk that she would not do so. All of those factors seem to me to justify his Honour in his finding that the discount should be at least fifty per cent. I see no ground for disturbing the assessment that his Honour made, that the appropriate sum for each of the economic losses arising from diminution in her capacity should be $100,000. In those circumstances I would propose that the appeal be dismissed with costs. Giles AJA I agree and have nothing to add. Cole JA: The orders of the Court will be as I have indicated. Appeal dismissed with costs. Counsel for the Appellant: LA Levy Instructed by: TG Hartmann and Assoc Counsel for the Respondent: DJ Russell Instructed by: GM Meadows