SINGH v ILICH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY and COLE JJA 30 March 1995, 30 March 1995 [1995] NSWCA 432 Damages — no question of principle. Cole JA This is an appeal from a decision of his Honour Twigg J delivered on 17 October 1994 in which his Honour entered a verdict for the plaintiff in the sum of $125,838. The ingredients within that claim included a sum for past economic loss, for future loss of earning capacity, and for non-economic damages. The appellant has challenged his Honour's findings in relation to those three elements. The plaintiff was injured on eighteen February 1990. At that time she was aged approximately thirty-five years. She had been a hairdresser for approximately twenty years, but had ceased work some three weeks before the birth of her first child on 27 May 1988. She had not worked for eighteen months after the birth of that child. A week before the accident she had agreed with a former employer that she would resume work for him. The arrangement was that she would work for him on his busy days at the hairdressing salon, namely, Thursday, Friday and Saturday. Whilst the question of whether such an arrangement was made was in issue at the trial, his Honour accepted that such an arrangement had been made. His Honour was also satisfied that the work for those three days was available to her and that had she worked for those three days she would have earned net a figure of $235 per week. In the accident the appellant suffered soft tissue injuries to her neck and shoulder which produced stress and headaches. There was a medical conflict as to the duration of the sequelae of the accident, but the trial judge preferred the evidence of the plaintiff and her medical witnesses to the effect that after the accident she could work only one day per week. That day, as it turned out, being Saturday. It was submitted in this appeal that his Honour had not given sufficient weight to the evidence of Drs Ganora, Pillemer and Conrad, but in my view there is no basis for any contention that his Honour did not have proper regard to the medical evidence before him. In any event, the last of those doctors to whom I have referred concluded his views by saying, "I do not believe that she can do more than about five to ten hours hairdressing per week." The plaintiff had a second child on 29 July 1992. In calculating past economic loss his Honour took into account a period prior to and after the birth of that child when the plaintiff would in consequence have been off work. Thus, in calculating past economic loss his Honour took into account two periods, namely, the time from the accident to when she in fact recommenced work and, secondly, a period from that date when she recommenced work to the date of the trial. In relation to the time between the accident and the date when she recommenced work his Honour allowed in full her claim for three days loss of earnings at the rate of $235 net per three day week. From the date of recommencement to work when thereafter until trial she worked only one day rather than the three which she had 2 UNREPORTED JUDGMENTS initially intended, his Honour allowed two days loss of earnings. In relation to the future his Honour allowed a loss of earnings equivalent to two days loss of wages for a period of five years. It has been put in this appeal that, firstly, those findings in relation to the times lost both past and future were excessive in that there was evidence from medical practitioners that the plaintiff could have done more than the one day's work which the plaintiff in fact did and which his Honour assumed she would do for the next five years after trial. It is sufficient to say that there was evidence before the trial judge to permit him to reach the finding which he did. One need go no further than the evidence of Dr Conrad. It was secondly put that the amount allowed for past and future economic loss, based as it was on two days per week loss of earnings, was excessive because there was medical evidence to the effect that the plaintiff could do other light work in the nature of reception work. Two things may be said about that. The first is that for the twenty years preceding the accident she had worked only as a hairdresser, and in some respects it might be thought unreasonable that she should be asked to seek out some different form of employment to enable there to be a reduction of the damages which otherwise the defendant would be obliged to pay but, more importantly, the proposition that she should have sought alternative work, perhaps in the nature of receptionist, was simply not put to her at the trial. I see no reason why that matter should be permitted to be raised on appeal in those circumstances. It follows, in my view, that that there was abundant evidence upon which the trial judge was entitled to reach the findings that he did. There was a third matter which was raised in the appeal. That arose from the circumstance that on one occasion when the plaintiff in fact worked on a Friday and a Saturday she found that that disabled her such that thereafter she could not attempt two consecutive days. It was then put on this appeal that she should have sought to work three days, but spread those days throughout the week so that they were not consecutive. There was evidence from the employer that he would have been prepared to employ her at that time had such an arrangement been made. It is sufficient to say, I think, that, firstly, that wasn't the arrangement she had made and, secondly, there was evidence before the trial judge that she had contemplated working on a Wednesday and a Saturday and thought herself unable to do so. In those circumstances in my view there is no basis for disturbing the finding of the trial judge that economic loss in respect of the past should be calculated in the manner which I have indicated and in the manner found by his Honour, nor, in my view, is there any ground for disturbing his Honour's finding in relation to compensation for loss of future earning capacity. There was some evidence from medical practitioners that the appellant may recover in the sense that she may be able to do more hairdressing work. The extent of that was not really quantified. The plaintiff's submission to the trial judge was that she should be compensated on the basis that she would lose two days work per week for ten years after the trial. His Honour did not accept that proposition, but made an assessment that the appropriate time for which she should be compensated after trial was five years. He calculated the damages for loss of future income earning capacity upon that basis without making any discount. Such a calculation as a general assessment in my view on the evidence was appropriate, and there is no need, in a period such as that being short as it is, for there to be a discount of any significant dimension for vicissitudes. In those circumstances I do not think that it has been shown that his Honour's finding in that respect was in a error. URJ SINGH v ILICH (Priestley JA) 3 The only other matter raised in the appeal related to the percentage of worst case scenario which his Honour was obliged to determine. His Honour took a percentage of twenty-two per cent. It was contended a more appropriate figure would be fifteen per cent. The appellant has suffered significantly from the accident, not only in relation to her incapacity to work as she had intended. She has suffered significant pain when doing housework. Even when reading she has significant headaches requiring treatment by analgesics and other medicines, and she has lost her capacity to engage in aerobics and tennis and other aspects of her life. In those circumstances my view is that the figure of twenty-two per cent selected by his Honour is not one which has been shown to be appellably wrong. In this case it is my view that the appeal should be dismissed with costs. Before leaving the matter, however, I would wish to indicate that in not calling upon the respondent the court's action should not be regarded in any way as a reflection upon the quality of the submissions advanced on behalf of the appellant. Mr Russell has, with his usual thoroughness and care, put to this court in a fair manner all those matters properly to be placed before it. Priestley JA I agree. The orders of the court are as proposed by Cole J. Appeal dismissed with costs. Counsel for the Appellant: DJ Russell Instructed by: GE Lazar Counsel for the Respondent: A Liddon/I Ryan Instructed by: Hunt and Hunt