New South Wales Court of Appeal CITATION : Long v McDonald & Anor [2000] NSWCA 10 FILE NUMBER(S) : CA 40183/98 HEARING DATE(S) : 11 February 2000 JUDGMENT DATE : 18 February 2000 PARTIES : Steven Mark Long v Christopher McDonald and A.J. & G. McHarg Pty Ltd JUDGMENT OF : Mason P at 1; Priestley JA at 2 LOWER COURT JURISDICTION : District Court LOWER COURT DC 52/98 FILE NUMBER(S) : LOWER COURT His Honour Judge McLachlan JUDICIAL OFFICER : COUNSEL : Appellant - J. Ireland QC / R. Foord Respondent - D. Conti SOLICITORS : Appellant - Denniston & Day Respondent - Harris Lieberman Boyd CATCHWORDS : Appeal on quantum - Error in judge's assessment of plaintiff's pre-injury average earnings - Reassessment - Appeal against basic factual findings fails - No question of principle needing to be decided CASES CITED: Abalos v Australian Postal Commission (1990) 171 CLR 167 SRA (NSW) v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 DECISION : Appeal allowed THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40183/98 DC 52/96 MASON P PRIESTLEY JA Friday, 18 February 2000 LONG v McDONALD & ANOR APPEAL ON QUANTUM - error in judge's assessment of plaintiff's pre-injury average earnings - reassessment - appeal against basic factual findings fails - no question of principle needing to be decided. ORDERS 1. Appeal upheld. 2. Judgment below set aside, except as to costs. 3. The settled figure of damages be substituted for that awarded by the trial judge. 4. The new judgment to take effect as from the date of the trial judge's judgment. 5. The defendants to pay the plaintiff's costs of the appeal. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40183/98 DC 52/96 MASON P PRIESTLEY JA Friday, 18 February 2000 LONG v McDONALD & ANOR 1 MASON P: I agree with Priestley JA. 2 PRIESTLEY JA: Mr Long was injured on 22 December 1994 while working as an interstate semi trailer driver. He brought an action in the District Court as plaintiff against two defendants, who admitted liability. His damages were assessed by his Honour Judge McLachlan as $254,359. This figure was the sum of the following heads of damage: 1. Out of pocket expenses $ 18,035 2. Past medication $ 2,500 3. Future medication $ 5,000 4. Fox and Wood component $ 23,652 5. Past economic loss to 23 January 1997 $ 30,672 6. Economic loss 24 January 1997 and continuing $100,000 7. Section 79 component $ 74,500 3 The plaintiff appealed on the ground that the damages were inadequate. In the appeal it was submitted that the trial judge was in error in regard to heads numbered 5, 6 and 7. Heads 5 and 6 . 4 For the plaintiff various submissions were made asserting that the judge should have found that the plaintiff's average weekly earnings before the accident were higher than the figure of $485 found by the judge, and that the figure found by the judge as what the plaintiff was able to earn after the accident, $324 per week, was too high. The problem with all of these submissions except one was that the judge's findings were based upon his assessment of the plaintiff's reliability as a witness and upon the view he had formed that the plaintiff was exaggerating the extent of his disabilities flowing from the accident. There was material before the judge, which, combined with his observation of the plaintiff, enabled him to reach that conclusion. Such a conclusion is one with which this court should not interfere unless the court can see that some clear and important error has been made by the judge in forming it; Abalos v Australian Postal Commission (1990) 171 CLR 167, SRA (NSW) v Earthline Constructions Pty Ltd (1999) 73 ALJR 306. No such error appears in the present case in regard to his Honour's credibility and factual findings. Except as to the one submission mentioned, therefore, the appeal fails as to these two heads. 5 The only point available to the plaintiff not shut out by the Abalos line of authority relates to the figure of $485 found by the trial judge as the plaintiff's average weekly earnings pre-accident. This figure was derived from the plaintiffs earnings for the 25 weeks from the beginning of July to 22 December 1994. These totalled $15,916. This figure included $5440 given to the plaintiff as travelling allowance. At the trial one of the submissions for the defendants was that the after-tax weekly income of the plaintiff for the 25 weeks was $485. This figure was calculated on the basis that no part of the $5440 travelling allowance was an allowable deduction. That is, the figure from which, on the defendants' approach, tax should be deducted was $15,916. 6 This submission did not take into account evidence given by the plaintiff's employer (who was called for the defendant) concerning the travelling allowance for the 25 weeks in question. He said that the taxation office allowed the full amount of the travelling allowance as a deduction. This evidence was not in any way questioned. It meant, if accepted, that the amount from which tax should be deducted for the purpose of the relevant calculation could not be higher than $10,476, leaving his net weekly wage after-tax necessarily greater than the defendants figure of $485. This is because in both calculations the plaintiff's receipts for the twenty-five weeks are taken as $15,916, but on the plaintiff's calculation only $10,476 is subject to tax, while on the defendants' calculation $15,916 is subject to tax. 7 For the plaintiff it was submitted that, using the same method as the judge, but recognising that the travelling allowance of $5,440 was fully deductible, the plaintiff's average weekly earnings net of tax in the period immediately before his accident were $566. I do not understand this calculation to have been in dispute. (Almost certainly if everything relevant to a precise calculation of the plaintiff's strict income tax position were taken into account, the result would be different. However the parties were content with rough calculations at trial, and this court should not (and has not been asked to) now adopt a more accurate approach.) 8 The defendants' answer to the plaintiff's substantive point was that what the plaintiff's employer had said in evidence was only his opinion concerning the deductibility of the travelling allowance. However, his evidence was that the tax office had accepted as deductible the travelling allowances which were paid to his employees (Black AB.2/175-6). There was no basis for rejecting the employer's evidence on this point. He was otherwise accepted by the judge, who made no finding adverse to him. The significance of the evidence appears not to have been brought to the judge's attention. Nevertheless it was there and should have been acted upon. 9 I therefore think the plaintiff's submissions on this matter should be accepted and that on the premises he used, the trial judge should have found the plaintiff's pre-accident weekly earnings figure to have been not $485 but $566. In my view the trial judge's calculations should be adjusted on that basis. For the defendants, arguments were raised against simply adopting the same method as the trial judge except for the use of the higher figure, but I do not think those arguments should be accepted. First, the defendants can hardly complain about the adopting of a method that was advanced in one of their own submissions to the trial judge. Second, the result does not seem to be at all unfair to the defendants, bearing in mind that in quite a number of the twenty-five weeks for which actual figures were available the plaintiff received $884 after tax. 10 According to a calculation handed to the court for the plaintiff at the close of argument, the result of using this figure but otherwise using the same premises as the trial judge, is that head 5 of damage should be $52,246 and head 6 $166,500. Head 7 . 11 It was strongly submitted for the plaintiff that on all the facts of the case the trial judge's s 79 assessment was manifestly too low. Although I have some sympathy for this submission, it runs into the same difficulties encountered by all but one of the arguments under heads 5 and 6: there was material upon which the trial judge could come to the conclusion he reached, upon taking into account the views he formed about the plaintiff, and there was nothing except the result which the plaintiff could point to as indicating any appellable error. The result is not one which in my view can be properly called manifestly inadequate. This aspect of the appeal therefore fails. Conclusion . 12 In my opinion the appeal should be upheld and the amounts for heads of damage 5 and 6 should be increased. Technically, this means the court is involved in a re-assessment but, in view of the way the appeal was conducted, I am prepared to accepts heads 1 to 4, and 7 as found by the trial judge. The fresh assessment is necessarily conducted on the basis of the evidence as it stood before the judge and upon his views of the plaintiff. (The alternative would have been a new trial, but the plaintiff preferred that this court should deal with the matter on the indicated basis rather than a new trial.) On this basis the increase in the s 79 maximum figure which has occurred since the judgment below does not come into calculation. 13 It may however be necessary to make a further adjustment (for interest) to the figures handed up for the plaintiff. Also, I think the defendants should have an opportunity to check the plaintiff's calculated figures. To enable these matters to be attended to the parties should have seven days from today to file with the President's associate agreed figures prepared in accordance with these reasons as at the date of the trial judge's judgment, or, if the parties cannot agree on the final figures, a submission from each party supporting the figures contended for by that party. 14 When the figures are settled, the court should in my opinion order: 1. Appeal upheld. 2. Judgment below set aside, except as to costs. 3. The settled figure of damages be substituted for that awarded by the trial judge. 4. The new judgment to take effect as from the date of the trial judge's judgment. 5. The defendants to pay the plaintiff's costs of the appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.