PIGRAM v JENKINS and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P and PRIESTLEY JA 14 May 1997, 14 May 1997 [1997] NSWCA 247 Motor accidents act — damages — future economic loss MOTOR ACCIDENTS ACT — AWARDING OF DAMAGES — appeal against decision of trial judge not to award damages for future economic loss. Held: It was a real possibility that the plaintiff might need to seek work in the future which would require considerable use of his left leg and that the continuing effects of the accident would affect his ability to perform work of that land. Therefore, the trial judge should have allowed some amount for future economic loss. Medlin v State Government Insurance Commission (1995) 182 CLR 1. Malec v J C Hutton Pty Ltd (1990) 169 CLR 638. Priestley JA This appeal is from a judgment of O'Reilly DCJ given in Wagga Wagga, immediately after the hearing of a claim for damages which arose from the plaintiff having been knocked off his bicycle by a car on 5 December 1991. The plaintiff was then 13. His left leg was injured in the accident. From some of the medical evidence, it appears that he was left hand dominant, although not exclusively left handed. The principal injuries to his left leg were a fractured distal tibia and fibula. He was in hospital for some time and operated on by a surgeon at Wagga Wagga Base Hospital. He commenced his proceedings on 24 February 1995. The defendant admitted liability. When the proceedings came on for hearing before O'Reilly DCJ, the only witness to give evidence was the plaintiff. He was then eighteen. In his evidence in chief, he described fairly generally the consequences to him of the injury to his leg. He described continuing episodes of pain and tended to speak of pain and aching in the leg. He also gave evidence of restriction of his sporting and other physical activities, resulting from the aching and pain that he felt in the leg. In some answers he became more specific about the locality of the pain which appears to have been, according to his evidence, centred mainly in his left ankle. He had given up some sport because of the problems he experienced with the ankle, although he had also continued some sporting activity. He volunteered, for example, that he had played indoor cricket the night before the hearing of his case. It appeared also, that he had had some success in indoor cricket but he said that one consequence of the game the night before was aching and soreness in his leg, commencing during the game and becoming more painful afterwards. His evidence in chief could be summarised as dealing with pain and generalised aching, which interfered with energetic physical activities, which he had had to diminish considerably in the years since his accident. Some specific examples that he had given concerned some work he had done on a part time basis in a shop in which he had had to lift heavy boxes. This had caused him noticeable physical discomfort, to the extent that he did not feel he would be able to work in any job involving extended physical activities. 2 UNREPORTED JUDGMENTS He also gave evidence that he was receiving tertiary education in computer learning and that he was intending, all being well, to become employed in some aspect of the computer industry, where he would hope to be able to work more or less entirely in a sedentary way. The plaintiff was cross-examined briefly by counsel for the defendant. The full cross-examination was as follows: "CROSS-EXAMINATION PARKER: Q. The job at the store in Cootamundra, over what period did you work there? A. I worked there for two years while I was in year 11 and year 12, so it was the past two years. Q. What on the weekends was it, or in the afternoons? A. Um, Saturdays mainly, sometimes you worked - it was usually a six hour shift. Sometimes you worked 7 in the morning till 1, sometimes you worked from 1 till 7. Sometimes - it wasn't very often but sometimes you'd work 7 till 7, you'd have your breaks in between. Q. This is all Saturdays, or some afternoons, or what was the - A. It was mainly just Saturdays but on occasions I did get called in of a weekday. Q. And you were doing the work I might be wrong about the description but some sort of work we might describe as that of a storeman? A. Ah well, I did pretty much everything at that shop. I served customers, made hamburgers, cooked chips, mixed paints, sold groceries, swept the floor, got rid of the cobwebs off the roof HIS HONOUR: Q. Did you say mixed paint as well? A. Yeah, I mixed paint, yeah PARKER: Q. Now, last weekend at Pioneer Park what were you doing out there? A. I took the dog, I took my brother's dog for a walk. Q. And in your indoor cricket you' ve obviously played in a number of 16 over games- A. Yes I have. Q.--over the period since your accident haven't you? A. Yes, that's right Q. And you enjoy that? A. Yeah, I love playing yeah. Q. And given time in Albury, when you' ve settled into your course down there, I suppose it is your wish to get back into as much sport as you 're able? A. Yes I, yeah that's right. Q. And do you do any exercises for your ankle? A. I do go to the gym at the SS & A Club in Albury. Q. And does that bring about any improvement in your ankle? A. No. Q. Has anybody suggested to you in relation to say tennis, or cricket, that you try some gradual re-entry into the game, like trying yourself out and doing a bit little by little? A. No. Q. Would you think that would be a good idea, worth a try? A. It'd be worth a try yeah but it would take a while but. Q. Yes? A. It'd be worth a try yeah. URJ PIGRAM v JENKINS and ANOR (Priestley JA) 3 Q. But you'd be so keen to get back into it, you wouldn't mind how long it took you'd give it a go wouldn't you? A. Well um, since the accident I've kind of got into other sports, so I mean, tennis isn't, doesn't interest me Q. No longer a high priority? A. Yeah, that's right, it's-- HIS HONOUR: Q. I missed that, tennis doesn't interest you as much as A. As it used to, yeah." I set out the cross-examination, not in order to criticise it, because it seems to me to have been perfectly sensible and straight forward in the circumstances but to illustrate that there was no suggestion made to the plaintiff in the course of his evidence that he was exaggerating the extent of his symptoms in any conscious way. The other evidence in the case consisted of medical reports from a number of medical practitioners. Some of these fully supported the plaintiffs case. One which provides a convenient description in more detail than I have yet given, of what happened to the plaintiff in a medical sense and subsequently, was the report of Dr Middleton of 16 January 1995, about 17 months before the trial, which said, in part: "On examination in the left leg there was slight reduction in bulk and power in both the upper leg and lower leg major muscle groups consistent with relative disuse and this was particularly significant, bearing in mind his left hand dominance. There were no clinical abnormalities evident around the left hip or knee but in the ankle and hindfoot there was a healed surgical scar anterior to the medial malleolus some 7.5cm in length and he described pain and localised tenderness to palpation over the structures inferior to the medial malleolus. There was essentially full range of movement of his ankle and hind foot and no obvious limb length discrepancy was evident. Mr Pigram brought with him x-rays of his pelvis, left hip, left knee, left shoulder and left ankle from 5 December 1991. These showed no major abnormality in the other areas but in the left ankle there was a markedly displaced fracture of the distal shaft of the fibula and tibia with the tibial fracture extending into and along the medial growth plate. Subsequent films showed restoration of excellent alignment of the fractures and progressive development of full radiological union. There was some radiological evidence of abnormality of the medial part of the tibial growth plate and in the most recent films, which were from 22 February 1993, there was a suggestion of slight spiking extending from the tip of the medial malleolus inferiorly, however, the joint space lines appeared very well preserved. Overall, on the basis of the history, clinical findings and x-rays seen, I concluded this young man had sustained significant injuries to his left lower leg in the motor vehicle accident of 5 December 1991 as described, with a potentially very serious fracture to the distal tibia and fibula. However, to date, his progress with healing had been excellent and there was currently no indication of significant limb length discrepancy. This latter would be a real risk given the damage extending into the growth plate and he had not as yet (or at least on the most recent x-rays from two years previously) come close to finishing his growth phase. It appeared likely that his residual symptoms, which limited very demanding ambulatory activities related predominantly to associated soft tissue capsulo-ligamentous damage around the ankle joint occurring in the course of the 4 UNREPORTED JUDGMENTS accident but it probably would be appropriate to leave final assessments of his long term situation until his skeletal growth had ceased which may be two or three years into the future. It also by then may be more evident whether he was developing any early post traumatic degenerative changes around the ankle joint attributable to the effects of the injuries. Even on his current presentation and on the basis of not developing such changes at an early date, I would recommend this young man as not ideally suited to work or other activities of a particularly demanding nature in terms of ambulatory requirements. 1 would not recommend him as suited to work involving a lot of prolonged standing or walking, particularly over rough or uneven terrain or while carrying any heavy loads. As such, his goals of a career in computers would appear to be reasonably appropriate, particularly if he were involved more in areas of programming, software development and related activities. I would note, however, that maintenance, repairs and other such tasks in the computer industry may not be so appropriate because they may require quite demanding lifting and manual handling capacity." Reports from other medico-legal professionals were to the same general effect and tended to highlight the problem the plaintiff was having with tingling and other disagreeable sensations in his left foot, which over the period had caused him considerable discomfort and inconvenience, and were thought to be the result, not of the fractures in the left leg, but of the way in which his foot was constricted by the cast in which the leg was placed for sometime after the operation. Reports from Mr Van der Rijt, the surgeon who had done the operation, and from Dr RD Johnston, were adverse to the plaintiff. Dr Johnston, in particular, suggested in his report that the plaintiff was deliberately faking and exaggerating symptoms. The surgeon was more moderate in his criticism. In his reports he was concerned principally with the operation he had performed at the site of the fractures and with what appeared to be the excellent result of his surgery. He did not think there was any physical basis connected with the healing of the broken bones, which could account for the plaintiffs continuing symptoms. He did not, as I read his two reports, suggest that the plaintiff was deliberately exaggerating. The judge did not definitively resolve the conflicts in the medical reports. He was left in the situation which this court sees so often, of having before him conflicting written opinions, without any opportunity to gauge from hearing the writers of opinions asked questions about them, how strongly the opinions were held, or how soundly in the circumstances. It is clear from his reasons however, that the trial judge accepted the plaintiff to some extent. After reviewing the medical reports and indicating obliquely that he thought there was some force in what had been said by the surgeon and Dr Johnston, he concluded his reasons as follows: "So it seems that the plaintiff and it is most unusual for a country lad of this age, but it seems that he has somehow become focused inwards on this problem. That would seem to have the effect of delaying his recovery. Dr Johnston was unable to find any evidence of physical incapacity and his final few words were, 'I would re-echo Dr Van der Rijt's comments '. Well I'm familiar with the healing hand syndrome and one cannot totally discount what the plaintiff now says about his problems but the only common sense judgment that I can make about it is that his problems such as they are now, are comparatively minor and not such as to URJ PIGRAM v JENKINS and ANOR (Priestley JA) 5 interfere with his enjoyment of life to a great extent I would respectfully concur with Dr Van der Rijt, that the pain clinic programme seems to be totally disproportionate to what is happening, especially in view of Dr Seaton's earlier suggestion of a much more perhaps practical and modest form of self therapy, so I do not think that is realistic. As to earning capacity, it will be some few years before he is finished apparently with his course. I do not take the view that there will be any realistic restriction. He is not likely to be doing pick and shovel work or driving interstate, et cetera. He is heading towards information technology and I see no reason to assume that he win suffer economic loss. The out of pockets are $1,015. I assess doing the best I can, the s79 component at 24 per cent, which is $40,900. Judgment then for the plaintiff for $41,915, together with costs to be assessed." My understanding of the trial judge's reasons is that he accepted the plaintiff to some extent but also indicated an inclination to discount the continuing effect of the injury to the plaintiff as a matter of physical fact, but thought that the plaintiff might have what used to be called a functional overlay resulting from the injury and his brooding upon it. I do not understand the trial judge to have come to any final conclusion adverse to the plaintiff's credibility. Possibly the reason for that is that as he indicated at the very close of his reasons, he did not intend, for a reason not involving credibility, to include any component, in the final award of damages, for future economic loss. What he did in this respect was to take up the evidence concerning the plaintiffs intended future occupation and to assume that the plaintiff would remain of the intention always to seek and obtain employment of a sedentary kind, with the result, as the trial judge saw it, that he would never suffer economic loss. In doing this it seems to me that he made a mistake. The law concerning this head of damages has recently been restated in the High Court in Medlin v State Government Insurance Commission (1995) 182 CLR 1. In their joint reasons Deane J, Dawson J, Toohey J and Gaudron J on this point said that in regard to loss or impairment of earning capacity that rubric will not "entitle a plaintiff to be compensated for diminution in earning capacity as a distinct head of economic loss in circumstances where the diminution has had and will have no adverse effect on actual earnings and will be productive of no economic loss." (at 4) In the present case, on the facts as they were left before the trial judge and on the basis that he was at least to a limited extent accepting the plaintiffs evidence of the effect upon him of the accident, there was open quite plainly, as it seems to me, the possibility that in the future the plaintiff might for any one of a number of reasons, find himself seeking employment which would take him outside prior sedentary occupations. With the conventional working life open to him between the age of 20 when he would finish his tertiary education and 65, there must be a real possibility that he would find himself, by inclination or obligation, having to seek work where much greater physical effort would be required than if he were able to remain in a sedentary occupation for his working life. 6 UNREPORTED JUDGMENTS In Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 the High Court made it clear that under the heading of diminution in earning capacity possibilities of the kind I have mentioned, must be taken into account in the assessment of future economic loss. On the evidence before the trial judge, there were two distinct possibilities, one that the plaintiff might need to seek work in the future which would require considerable use of his left leg and the other, that the continuing effects of the accident, particularly upon his ankle and his foot, would affect his ability to obtain and perform work of that kind. In my opinion the trial judge should have made an allowance, in his assessment of damages, for those matters. As the evidence was left before him, the amount involved could not be great. On the evidence before him, the likelihood would have appeared to be in favour of the plaintiff's continuing and not gross disability not being a great economic drawback for him. Nevertheless, as I have indicated, it seems to me that the possibilities were real and that some amount should have been allowed for them. The parties were asked whether if the court were to come to this conclusion, they would seek to have the question of assessment remitted to the District Court for a new trial or would leave it to the court to attempt to assess the appropriate amount. They indicated they would leave it to the court. It is quite a difficult assessment to make, even although it is one at the low end of the range and within quite a small compass. Taking into account the various factors I have mentioned, it seems to me that a suitable amount would be $10,000. I therefore propose that the appeal be upheld, the judgment below set aside, and a fresh judgment entered, the amount of it to be greater than the one set aside in the amount of $10,000 for loss of economic capacity, taking the judgment amount to $51,915. The judgment should operate as from 27 June 1996, the date of O'Reilly DCJ's original judgment. The respondent defendant should pay the appellant plaintiff's costs of the appeal. Mason P I agree. The orders of court will be as proposed by Priestley JA. 1. Appeal allowed. 2. Judgment below set aside and new judgment entered in the amount of $51,915. 3. Judgment to operate as from 27 June 1996. 4. Respondent to pay the appellant's costs of the appeal. Counsel for the Appellant: B Toomey QC Counsel for the Respondent: FG Parker Solicitors for the Appellant: Walsh and Blair, Wagga Wagga Solicitors for the Respondent: Deacons Graham and James