DAHLSTROM v SIMPSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY, SHELLER and COLE JJA 6 March 1998, 6 March 1998 [1998] NSWCA 68 MOTOR VEHICLE ACCIDENT — assessment of damages — no question of principle Handley JA This is an appeal by a plaintiff from the assessment of her damages by Judge Twigg at Moree in a judgment given on 27 November 1996. The assessment arose out of a motor vehicle accident which occurred in July 1993 and the damages fell to be assessed pursuant to the Motor Accidents Act 1988. The Judge awarded an amount for non-economic loss based on 20 percent of a most serious case and this figure has not been challenged by the appellant. He also awarded an amount of $16,750 for past economic loss for a period of total incapacity of about six weeks between the accident and the commencement of the plaintiff's work at Miyay Birray at Moree, and for partial loss of capacity from between 1994 when she left that job until the trial. The appellant sought an increased award for this period. Her other claims were for the award of a cushion for future economic loss and for future expenses rendered necessary by the accident. The Judge accepted the plaintiff's evidence in relation to her physical disabilities, and noted that she did not exaggerate her symptoms and that her account of these given to the doctors was consistent with her evidence. On that basis he found that her life had been affected and was still being affected by her injuries. Iam not being persuaded by Mr Hickey that the Court should allow any further amount for the plaintiff's past economic loss. She gave evidence that she had difficulties in carrying out her duties at Miyay Birray but she said that she enjoyed this work and remained in the job for about seven months before she voluntarily resigned. She had difficulty in answering questions as to the reasons for her resignation. Her letter of resignation did not refer to any difficulties that she had with her work and, as the Judge noted, when she was pressed for an explanation for this, and for changing her mind about the move to Tamworth, she refused several times to give an answer, and said she could not give an explanation. The Judge was left wondering whether her real reason for leaving the job was that she preferred to enjoy the benefits of her share of the profits of the business partnership and felt no need to continue working. The Judge allowed approximately 25 percent of the claim for past economic loss and I see no basis on which, given his other findings, this Court can interfere with that assessment. The other claims for the future have more substance. In view of the Judge's findings about the plaintiff's physical condition which underpinned his assessment of her non-economic loss as equivalent to 20 percent of a most serious case and his express finding that her life is still being affected by her 2 UNREPORTED JUDGMENTS injuries, it appears to me that his Honour has necessarily found that the plaintiff suffered a continuing loss of earning capacity, although he made no express finding to that effect. The reasons he gave for declining to make any award for future economic loss also give rise to a necessary inference that his Honour found that the plaintiff had suffered a continuing loss of earning capacity. His Honour at pages 136-138 and again at 142 appears to me to proceed on the basis that her diminished earning capacity in the future did not warrant an award of damages because it was not likely to be productive of economic loss. This finding is necessarily dependent upon the continuation of her business and personal partnership with her husband, Mr Sid Craigie, but as the Court knows only too well, there can be no legal certainty that these relationships will continue for the balance of the plaintiff's probable working life to age 60 or thereabouts. There are also other contingencies associated with her husband's continued good health and the economic vicissitudes associated with any business depending upon agricultural activity in this country. The Judge, however, took a different view. He said that there was no evidence before him that the partnership was not likely to continue and make substantial profits from the Australian cotton trade, or that the plaintiff will not retain both her capital and income bases from it. He said: "There can be no basis for a future cushion on the probabilities when her financial position from other sources of income instituted before the motor vehicle accident is in no way diminished by the motor vehicle accident". In my judgment these findings overlook the principle derived from Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 that when a Court awards damages for the future it does so, not upon any precise prediction, but upon an assessment of the chance that the particular loss will or will not be suffered. It is beyond argument that there is a chance, and a significant one, that the plaintiff, for one reason or another, will be thrown back on the general labour market at some stage prior to attaining the age of 60. It is impossible to evaluate that chance except in a broad and impressionistic fashion. Mr Hickey has submitted that the Court ought to allow $50,000 for future economic loss. This represents one third of the present value of the plaintiff's earnings from Miyay Birray to age 50, one quarter to age 55 and one fifth to age 60. This is a case where precise calculations cannot be expected from the parties and where the Court, like a jury, has to do the best it can on the material that is available. In my judgment an award of $50,000, which represents some $50 per week, is an appropriate one for a plaintiff injured as this plaintiff was on the findings of the Judge. I will, therefore, propose that the award of damages be increased by that amount. Mr Hickey also sought an amount for future out-of-pocket expenses in the amount of $1,500. This amount was not claimed in the Pt12 particulars but was established by the evidence given by the plaintiff without objection which is supported by evidence from Dr McEwin. The amount claimed represents some $1 or $1.50 per week. Dr McEwin's evidence at page 90 would support a higher figure but, in view of the plaintiff's own evidence at page 24, the lesser amount claimed by Mr Hickey should be allowed. I do not regard the objection, based on the absence of this item from the particulars, as controlling where the evidence was admitted at the trial without objection. URJ DAHLSTROM v SIMPSON (Cole JA) 3 I would propose that the appeal be allowed and that the following orders should be made. Set aside the judgment of Judge Twigg except as to costs and in lieu thereof substitute a judgment for $103,098 with effect from 27 November 1996. 5 The appellant should have the costs of the appeal and the respondent should have a certificate under the Suitors' Fund Act if qualified. Sheller JA I agree. Cole JA I also agree.Appeal allowed. Counsel for the appellant: C Hickey 15 Counsel for the respondent: K Rewell Solicitors for the appellant: Abbott Pardy & Jenkins Solicitors for the respondent: Sparke Helmore