DALKILIC v NIA SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL PRIESTLEY JA, HANDLEY JA and BEAZLEY JA 15 May 1996 [1996] NSWCA 136 MOTOR VEHICLE ACCIDENT — damages — error in form or substance. The trial judge awarded the appellant $77,157.05 damages arising from a motor vehicle accident. He dismissed the appellant's claims of psychiatric illness and neck injury but was Satisfied that the accident had appreciably aggravated his pre-existing back condition though not as severely as claimed. The appellant claimed that the economic loss had been incorrectly assessed because the trial judge referred to "income losses" rather than the loss of income earning capacity and by noting that the income loss was "not entirely related to the accident" when compensation can be awarded for tortiously caused injury which is no more than a contributing cause of the losses in question. HELD, dismissing the appeal: (1) On the evidence before the trial judge and his findings as to credibility and capacity, the errors were of form and not substance; (2) There was no substantial wrong or miscarriage. Handley JA. This is an appeal by a plaintiff from the assessment of his damages by McLachlan DCJ. The motor vehicle accident occurred on 26 June 1992. The trial judge found the issues of liability in favour of the plaintiff and assessed his damages at $77,157.05. The plaintiff's appeal has been directly principally at his Honour's assessment for economic loss past and future, although Mr Puckeridge for the appellant did make some submissions about his Honour's assessment of non-economic loss at 18% of a most serious case resulting in an award of $21,460.00. The plaintiff had been working prior to his accident as a truck driver doing heavy driving and carrying work. His income tax return for the year ended 30 June 1992, which related to all but four days of normalpre-accident work on his part, disclosed a nett income after tax of $395.00 per week. The plaintiff had a congenital condition known as spondylolisthesis which was said on his behalf to have been asymptomatic prior to the accident. However the clinical notes of Dr Erol, his general practitioner, indicated that the plaintiff had consulted that general practitioner on a number of days between 27 February 1978 and 10 May 1983 with complaints of back pain and sciatic pain associated with various accidents and incidents involving lifting or motor vehicle collisions during that period. The trial judge found that the plaintiff had exaggerated his symptoms in the course of his evidence and considered that his failure to reveal his pre-accident back problems to the medico-legal doctors also affected his credit. The trial took place a little over three years after the accident and during that period the plaintiff had not secured alternative employment. He gave up work as a driver of heavy trucks shortly after the accident and that decision on his part is supported by the medical evidence. There has been no suggestion that he was fit for his pre-injury employment. The picture therefore presented at the trial on behalf of the plaintiff was one of total lack of earning capacity in the period prior 2 UNREPORTED JUDGMENTS to trial or at all events severely diminished earning capacity which had not enabled the plaintiff to earn anything apart from a few days casual employment at the markets and other minor jobs. The plaintiff's case at the trial was that he had continuing back problems associated with pain, weakness and disability. He had neck problems and psychiatric problems, all of which were attributable to the accident. The trial judge found that the plaintiff's mental problems didnot constitute a psychiatric illness and that his position was no worse than being unhappy, irritable and at times depressed. His Honour was not satisfied about the plaintiff's neck injury for reasons he referred to but was satisfied that the motor accident had appreciably aggravated his pre-existing back condition which in his view had been symptomatic prior to the accident. However, his Honour was not satisfied that the plaintiff's complaints of pain, weakness and disability were as severe as he asserted in evidence. Mr Puckeridge recognised that he could not invite this Court to differ from the trial judge's findings on the alleged psychiatric condition and neck problem but submitted that his Honour had fallen into error in the way in which he assessed the plaintiff's damages for economic loss in the light of his finding that the accident had aggravated the plaintiffs pre-existing back condition. In particular Mr Puckeridge focused in his submissions on the judge's award of lump sums by way of cushion for past and future economic loss. His Honour said: As to economic loss, it has been necessary on the evidence to deal with the assessment on the basis of a cushion. I can see no other way of assessing the claim, given that I have found that the motor accident was a contributing factor and the plaintiff's income losses are not entirely related to the accident. The Court was reminded of the well established principle that damages are not awarded for loss of wages but for loss of income earning capacity, provided that loss of capacity is or may be productive of economic loss. The trial judge's reference to 'the plaintiffs income losses' was therefore a slip and his Honour should have referred to the plaintiffs loss of income earning capacity. Mr Halligan for the respondent did not seek to support the form of his Honour's statement in this respect, but submitted that there had been no error of substance which would warrant the intervention of this Court. His Honour made another slip when he said that the plaintiff's income losses were not 'entirely related to the accident'. It is well established that compensation can be awarded for tortiously caused injury which is no more than a contributing cause of the losses in question. The question for this Court is whether this slip was a matter of form or in the result was an error of substance. Mr Halligan relied heavily on the opinion of Dr Cunningham the plaintiff's treating orthopaedic specialist who advised the plaintiff on 19 August 1992 that he was then fit to return to work as a driver subject to a restriction that he should undertake no heavy lifting, defined as over ten kilograms. This opinion was given less than two months after the accident. Accepting that the plaintiff would have been entitled to an assessment of past economic loss for that two months period at the rate of $395 per week, the position thereafter appears to be that the plaintiff would only have a case for partial loss of capacity. However, as his Honour found, the plaintiff had failed to make reasonable and appropriate efforts to obtain other employment, and thereby failed to reasonably mitigate his loss. URJ DALKILIC v NIA (Priestley JA) 3 Given the modest level of the plaintiff's pre-accident earnings at $395 per week nett, and the existence of substantial income earningcapacity after 19 August 1992, it would seem that the plaintiff's claim for past economic loss, apart from the period of two months immediately after the accident, was a relatively modest one. His Honour was not assisted with precise evidence relating to the earnings that a courier driver or truck driver doing light work would be capable of earning, but on any view the figure would have been substantial though not necessarily $395 per week nett. Faced with the absence of specific evidence of the kind I have indicated, his Honour took the course of awarding what he described as a cushion for past economic loss of $20,000. This related to a period of approximately three years, comprising two months of total loss of capacity and partial loss for the balance. Having regard to the state of the evidence, and his Honour's findings as to the plaintiff's credit and capacity and the nature of the only incapacity which he found to be causally related to the accident, I have not been persuaded that his Honour fell into error or that there has been any substantial wrong or miscarriage as a result of his Honour's slips that I have referred to. The position with regard to the future, is even clearer. Given his Honour's findings as to the plaintiffs medical condition and his failure to take reasonable steps to mitigate his losses, his Honour could do little else but award a lump sum by way of cushion. Having regard to the plaintiffs age at the date of trial the amount was not substantial in comparison with the claim, but having regard to his Honour's primary findings which cannot be disturbed, the award was not ungenerous. In these circumstances I have reached the conclusion that the challenges to the judge's findings fail, and that the appeal should be dismissed with costs. Priestley JA. I agree generally with what Handley JA has said. There is however one reservation I feel it necessary to record. That relates to the trial judge's sentence which appears at p 787 of the Appeal Books: Ican see no other way of assessing the claim given that I have found that the motor accident was a contributing factor and the plaintiff's income losses are not entirely related to the accident which may indeed be read as containing the slips that Handley JA referred to; however I am not persuaded that in its full context and in the circumstances of this case that is does represent error in legal principle on the part of the judge. I do not need to come to a conclusion on that point because as I have already indicated, I otherwise agree fully with what Handley JA has said. In order to explain very briefly why I do not wish to commit myself to the view that the sentence contains errors, I point out that in the plaintiff's statement pursuant to part 12 rule 4A, there is a paragraph which reads: From 19 August 1992 to date and continuing the plaintiff is and has been fit for restricted duties only due to the injuries sustained in the subject accident. The plaintiff has been unable to obtain suitable employment as a consequence of those injuries and restrictions. The plaintiff claims damages for lost earnings in the sum of $1000 per week nett from 19 August 1992 to date and continuing. It seem to me quite possible that the trial judge in saying what he said and which has been criticised, was responding to the plaintiffs claim in the very terms in which the plaintiff was making it. The trial judge's view seems to have been that the allegation of the plaintiff's being fit for restricted duties only due to 4 UNREPORTED JUDGMENTS the injuries sustained in the subject accident had only been partly made out and that any inability to obtain suitable employment thereafter was at least partly a result of his own decision and not a consequence in any sense of the injury he had suffered by reason of the defendant's negligence. Thus without going into it further it seems to me that it is possible that in terms of the way the case was conducted, and in the light of findings that he had made prior to coming to the critical sentence, the way it was expressed need not necessarily be regarded as indicating error of approach on his part. I agree that the appeal should be dismissed with costs. Beazley JA. I agree with the reasons of Handley JA. Priestley JA. The Court's order is that the appeal be dismissed with costs. Orders accordingly. Counsel for the appellant: A Puckeridge QC/M Formosa Solicitors for the appellant: Napier Keen and Gilchrist Counsel for the respondent: H Halligan Solicitors for the respondent: Abbott Tout