VDS ENGINEERS PTY LTD v SKELE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER, STEIN JJA and FITZGERALD AJA 2 November 1998, 2 November 1998 [1998] NSWCA 247 PERSONAL injuries — evidence before trial judge justified his conclusions — insufficient grounds established for interference with judgment of court below. Fitzgerald AJA This appeal raises a small number of specific issues in relation to damages awarded to the respondent by a judge in the Common Law Division for personal injuries which he suffered as a consequence of an accident in the course of his employment on 11 December 1994. Liability was admitted. The evidence broadly indicated that the respondent, a young man about to engage upon an apprenticeship as a fitter machinist, effectively lost sixty to seventy per cent of the right upper limb function. Two components in the respondent's total award of $706,720.66 were $325,074 for future economic loss and $57,067 for loss of superannuation benefits. Both amounts depended upon the trial judge's conclusion that, but for his injury, and the respondent would have earned $600 per week during his working life and that he was now capable of earning no more than $200 per week. The appellant's submission is was that the trial judge failed to make an allowance for income tax (including the Medicare levy) in taking the figure of $600 per week and that the appropriate use of nett instead of gross figures would have resulted in a much lower total. It was submitted that the starting point should have been not $600 but $462 per week. However, the proposition that his Honour had taken a gross and not a nett sum was not pursued after explanation of what had taken place below. When it was seen that his Honour did proceed on the basis of nett figures as they were put before him on behalf of the respondent, the point was made that his Honour's reasons do not support the figures which he adopted. At one point in his judgment, his Honour said that he found that the respondent: "Would have successfully completed an apprenticeship and worked as a fitter machinist throughout his adult life." and he went on to say: "Further that having regard to the wage structure in that occupation given in evidence by Mr Hofer I find that he would have at least earned the average wage paid to adults in New South Wales during his working life". The latter statement is somewhat elliptical. It is not accurate to say that Mr Hofer's evidence supported the conclusion expressed by his Honour because Mr Hofer gave evidence of the income of another specific employee working for the appellant who was making somewhat less than the figure of $600 per week, which was the starting point taken by his Honour, and would still have been earning something less than that figure had he taken advantage of overtime which was available to him. However, Mr Hofer's evidence was not necessarily inconsistent with his Honour's conclusion. 2 UNREPORTED JUDGMENTS Another point that was made was that his Honour's conclusion was inconsistent with some evidence put before him by the defendant concerning award wages, but of course his Honour was not bound by that. Finally the point was made that his Honour referred to the average wage paid to adults in New South Wales whereas the figure his Honour used was the average wage paid to male adults in New South Wales. That seems to be a mere slip on his Honour's part and I am satisfied that his Honour intended to refer to adult males and not adults generally. I am also satisfied that there was evidence before his Honour which justified the conclusion at which he arrived and that, while it might have been preferable if his conclusion had been more fully explained, the grounds of appeal related to future economic loss and superannuation are not made out. The next component of the respondent's damages which is the subject of appeal is $72,216 for future handyman services as it was described, handyman services being the description given to this heading in the statement of claim and apparently used throughout the proceedings. The figure adopted by his Honour was based upon his conclusion that the respondent would need assistance for three hours per week costing $72. That conclusion was in turn based upon a finding the medical evidence (and indeed from the respondent's own evidence) that most household tasks are beyond the respondent's physical capabilities. The appellant submitted that the trial judge misunderstood the evidence which did not support a conclusion that the respondent required some of the services needed to make up three hours assistance per week. It was submitted for the appellant that on the evidence no more than one hour's assistance was required and that an appropriate rate was $19 per week. In my opinion there was evidence to support his Honour's conclusions which again were rather briefly stated. There is no ground for this Court to interfere. The final component of the respondent's damages against which the appellant has appealed is an amount of $67,328.30 for "computers, re-training, capital costs and maintenance". The appellant submitted that the sum of $7,094 for the capital cost of a computer and training was "generous" but that was not the subject of complaint. What the appellant took issue with under this item was his Honour's finding that recurring expenses would accrue in the sum of $63 per week for the remainder of the respondent's working life. There was, however, direct evidence to that effect available to his Honour which was in the form of a report from an expert tendered without objection and not made the subject of cross-examination. It was, therefore, open to his Honour to come to the conclusion to which he did irrespective of whether or not that conclusion would have been reached if the evidence had been challenged. In my opinion, no sufficient ground has been established for interference with this aspect of the judgment either. Overall, therefore, I am of opinion that the appeal should be dismissed with costs. Sheller JA I agree. Stein JA I also agree. Sheller JA The appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: S G Campbell URJ VDS ENGINEERS PTY LTD v SKELE (Sheller JA) Solicitors for the appellant: Hunt & Hunt Counsel for the respondent: C C Branson QC/D R Conti Solicitors for the respondent: Robb & Associates