NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v TRAJKOVSKI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY and COLE JJA 10 March 1995, 10 March 1995 [1995] NSWCA 316 NEGLIGENCE — RECOVERY OF DAMAGES — loss and impairment of earning capacity. Held: It is not necessarily illogical to discount future economic loss because of limited capacity to engage in work without similarly discounting past economic loss. Court should not interfere with trial judge's view of credit of plaintiff unless there was striking evidence to warrant doing so. Priestley JA The trial judge in this case set out the facts, his reasons and conclusions in a particularly clear and easy to follow way. I do not think it would be a sensible use of the time of anyone present here today for me to restate laboriously, or even do any comprehensive summary of, the materials relevant to this appeal. Instead I will adopt the method of assuming that anyone interested in reading the court's reasons for the conclusions we have reached in this case would also have available those of the trial judge, which will enable me to confine myself to stating the points taken by the appellant and what in my view is the appropriate response to each point taken. In not calling upon the respondent to the appeal the court intends no disrespect to senior counsel for the appellant who put his client's case vigorously and interestingly. The first point taken was that the trial judge had not properly borne in mind the acknowledged principle that in an action for negligence in New South Wales an injured plaintiff recovers damages for loss or impairment of earning capacity as distinct from a direct recovery of past and/or future lost earnings. That is a principle of longstanding and has recently been affirmed once more by the High Court in Medlin v State Government Insurance Commission. With that as the starting point the submission directed the court's attention to what the judge said towards the end of his reasons where he dealt first with past economic loss, that is loss for the period between accident and trial, and then with future economic loss. In regard to past economic loss his Honour said that he had no difficulty in finding the plaintiff permanently unfit for his pre-accident employment and would have considerable difficulty in obtaining suitable light work. This notwithstanding that his Honour was also of the view that with his qualifications and experience in his particular trade, he retained a limited capacity to engage in work connected with that trade. I will come back to past economic loss in a moment. In dealing with future economic loss the judge took into account what he had said about the plaintiffs limited capacity and because of that gave a discount in his calculation of future economic loss. In regard to past economic loss he said that bearing in mind the totality of the medical evidence he was not persuaded that the calculation for the past loss of earnings should be discounted for the possibility that the plaintiff could have found some suitable work. 2 UNREPORTED JUDGMENTS The appellant made what were really two different points about this. The first was that it was illogical for the judge, having made a discount in his calculations for future economic loss, not to have made a similar discount in his calculations for past economic loss. However, the two situations are different and it does not seem to me to be illogical for the judge to do what he did. The point, which is a trite one, is that in dealing with past economic loss his Honour had available a full factual conspectus of what had happened between accident and trial. For the future of course he did not. Involved in his Honour's decision it seems to me is the factual conclusion that although because of his specialised training it could be said that the plaintiff had some remaining limited capacity, in point of fact the value of that capacity to him on the judge's view of the facts had been demonstrated to be nil and thus he would not grant any discount. Reference was made to the fact that he had had light employment with his employer for some periods between accident and trial for which he had been paid and for which credit was given in the calculation of his past economic loss. However I do not think it can be maintained in the appeal that the fact of his having earned some income in this way demonstrates that he had a greater capacity in fact to earn than the judge decided. The light work was with his employer and it is a matter of common and also judicial knowledge that work of that kind provided by employers for reasons which may be benevolent or economic is a very unsafe guide to a person's actual capacity for work. The second point under this first heading is very similar to the one already dealt with but approaches the matter on a more theoretical basis, pointing to the Judge's use of the term "limited capacity", pointing to the principle that I have already mentioned, that what the law of negligence is really dealing with is not what loss of earnings is proved but what the loss of capacity has been, and saying that read literally the Judge's statements in his reasons show that he was not adhering to that principle. Medlin is useful because, not only does it re-state the principle that I have already mentioned, it also makes clear that in regard to loss of earning capacity there are two requirements which a plaintiff must fulfil in order to make out the claim for damages under that head. One is loss of earning capacity. The other is resulting financial loss. Medlin makes clear that those two requirements, although in a theoretical sense relating to quite different ideas, are nevertheless closely related and in many cases very hard to distinguish from one another in practical effect. In this case I do not think that the trial Judge was overlooking the first of the principles, the first of the requirements, and the explanation I have already given in regard to what the substance of his Honour's reasoning was in arriving at the two different conclusions he did as to discounting any calculations for past and future economic loss seems to me to answer also this second way of putting the appellant's main point. I am therefore of the view that that ground of appeal does not succeed. The first of the remaining points raised by the appellant is a question raised about the amount allowed by his Honour for the cost of future medication. I do not think I need say any more about that than that on the facts before him and in the view that his Honour took of the plaintiff's credibility, his Honour was fully entitled to include that amount in his award. A complaint was made that a particular incident relating to Panadeine medication, which was said to cast some light on the appellant's submission on this particular issue, was not dealt with by UEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v TRAJKOVSKI (Col8 JA) his Honour in his reasons. I do not think it was obligatory for him to discuss it. In the sections of his reasons in which his Honour dealt with the credibility of the plaintiff he made it clear why he would accept and did accept the future medication cost which was advanced before him. The other principal issue raised by the appellant was the credit of the plaintiff. The items which were relied on to support the appellant's view of this issue were what was said to have been contained in the video which had been made of certain activities of the plaintiff, the way he presented himself before one of the doctors whose reports were relied on by the appellant at the trial, Dr Cameron, and the incident pertaining to a Panadeine sample which Dr Revai took from the plaintiff. As I mentioned earlier, the Judge's reasons in this case struck me as very careful, and conscientiously presented. He obviously gave full consideration to matters concerning the plaintiffs credibility which have been raised and came to the very definite conclusion which he expressed in his reasons in the plaintiff's favour. That creates a major difficulty for the appellant. What I would suspect was the appellant's chief argument before the trial Judge was based on a showing before him of the video. The other matters relied on, by themselves, were of little weight. As to the video, the Judge said that he had looked at it on a number of occasions and did not see that it showed anything inconsistent with the plaintiff s claim before him. In light of that observation it would take something very, very striking in the video to make this Court even begin to consider whether it should interfere with the Judge's view of the credit of the plaintiff. However, the video is not available for this Court to look at. That seems to me to make even more inevitable the conclusion that this Court should not uphold the ground of the appeal directed to the Judge's treatment of the plaintiff's credit. The final submission dealt with the size of the award for damages. It was said that the Court, looking at the figure globally in light of the injuries suffered by the plaintiff and their consequence to him and in obedience to the admonitions of the High Court in Planet Fisheries, would come to the conclusion that the award was simply far too high. In my own general experience of awards for negligence cases in the last few years I can only say the award does not strike me as being in that area and I am reinforced in this conclusion by the fact that the figure at which the appellant says the Court should arrive at here is $580,000, whereas the judgment sum was in the order of $640,000. I do not think that there is any set percentage that a Court would look at in comparing figures of this kind but to my mind in the circumstances of this case if $580,000 would be a fair award it is very difficult to see that $640,000 is far too high. In any event as I have mentioned, my own reaction, based on the Planet Fisheries approach, is against the appellant's submission. In my view, therefore, the appeal should be dismissed. Cole JA I agree. Priestley JA: The appeal is dismissed with costs. Appeal dismissed with costs. COUNSEL: Appellant: MJ NEIL QC/GA LAUGHTON UNREPORTED JUDGMENTS Respondent: BHK DONOVAN QC/PS JONES SOLICITORS: Appellant: GM MEADOWS, NSWIMC Respondent: COLIN DALEY QUINN, KOGARAH