New South Wales Court of Appeal CITATION : Osborne v Cashel [1999] NSWCA 67 FILE NUMBER(S) : CA 40674/97 HEARING DATE(S) : 2 March 1999 JUDGMENT DATE : 26 March 1999 PARTIES : Mary OSBORNE v Leigh G H William CASHEL JUDGMENT OF : Priestley JA at 1; Stein JA at 2; Sheppard AJA at 13 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 4330/95 LOWER COURT JUDICIAL OFFICER : Howie DCJ COUNSEL : J.D. Hislop QC/R. C. Tonner (Appellant) P.C.B. Semmler QC/J.E. Keesing (Respondent) SOLICITORS : Moray & Agnew (Appellant) Martin Bell & Co. (Respondent) CATCHWORDS : Damages - Motor vehicle accident - non-economic loss - whether abilty to lead normal life impaired - future economic loss cushion - future out-of-pocket expenses ACTS CITED : Motor Accidents Act, 1988 (NSW); s 79 CASES CITED: n/a DECISION : Appeal Dismissed IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40674/97 DC 4330/95 PRIESTLEY JA STEIN JA SHEPPARD AJA Friday, 26 March, 1999 Mary OSBORNE v Leigh G H William CASHEL On 16 November 1994, the respondent was involved in a motor car collision. In proceedings in the District Court before Howie DCJ, the plaintiff was awarded $26,430 for non-economic loss; $5,324.80 for past out-of-pocket expenses; $28,917.65 for future out-of-pocket expenses; $25,000 for future medical and treatment expenses; and $80,000 for economic loss. Judgment was entered in the sum of $165,672.45. On appeal, his Honour's decision was challenged on the basis that: 1. his Honour erred in allowing future out-of-pocket expenses twice; and this was accepted by the respondent; 2. his Honour erred in that the allowance of $25,000 for future out-of-pocket expenses was excessive; 3. his Honour erred in awarding a cushion for future economic loss; 4. alternatively, his Honour's assessment of a cushion for future economic loss of $80,000 was excessive; 5. his Honour erred in assessing the respondent's non-economic loss at 19% of a most extreme case. Held: Appeal dismissed other than as to the item concerning out-of-pocket expenses. The allowance of $25,000 for future out-of-pocket expenses was within the grounds of discretionary judgment. Assessment of a cushion for future economic loss in the sum of $80,000 was not excessive. The allowance of $25,000 for future out-of-pocket expenses and treatment was also not excessive. _____________ ORDERS 1) Appeal dismissed with costs. 2) Judgment of Howie DCJ reduced by $28,917.65 to reflect the error made by his Honour. 3) Judgment of the District Court set aside and judgment for the respondent in the sum of $136,754.80 substituted. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40674/97 DC 4330/95 PRIESTLEY JA STEIN JA SHEPPARD AJA Friday, 26 March, 1999 Mary OSBORNE v Leigh G H William CASHEL JUDGMENT 1 PRIESTLEY JA: I agree with Stein JA. 2 STEIN JA: Three issues arise in this appeal but before turning to them I mention a non-issue. The parties agree that his Honour erroneously included a sum of $28,917.65 for future out-of-pocket expenses. This was an inadvertent doubling-up. The pity is that it was not able to be adjusted under the slip rule. It is agreed that the plaintiff's verdict should be reduced by the amount mentioned. 3 The first issue is non-economic loss under s 79 of the Motor Accidents Act, 1988 assessed by Howie DCJ at 19% of a most extreme case. The appellant contends that this is excessive and disproportionately high. In my opinion this percentage was within the bounds of sound discretionary judgment taking into account the evidence and findings of fact. 4 While the injury was musculo-ligamentous and his Honour found that it was of moderate severity only, he said that it had particular significance for the respondent because it interfered with his work capacity as an architect. Moreover, it was likely to be a permanent condition. The respondent's ability to lead a normal life had been significantly impaired. The injury results in restricted movement in the neck and intermittent acute pain requiring treatment. The respondent also suffers from headaches and long hours spent at a drawing board cause discomfort and pain. All of his Honour's above findings on non-economic loss were borne out by the evidence notwithstanding that the medical evidence varied as to the intensity of the injury and its consequences. 5 As I have said, I can see no justification for interfering with the assessment of non-economic loss. 6 The next matter is future economic loss which his Honour allowed in the sum of $80,000. The appellant submits that this was in error because it was excessive. It is said to represent $120 net per week for the 28 years of the respondent's remaining working life as an architect. Given that his injuries were of a soft-tissue type, albeit permanent, the allowance could not be justified. Also relevant was the evidence of the respondent's actual earning capacity and the finding of the court that there was no past economic loss. In the appellant's submission little or no allowance should be made or, at best, a $20,000 cushion. 7 As against this submission, the respondent contends that there was no evidence that the respondent would necessarily retire at 65; the 'cushion' was appropriate given that there was a range of circumstances to be taken into account which may be productive of financial loss, including lost opportunities and other matters not easily susceptible to precise quantification. The award equates to no more than 14% loss of future earning capacity and this was within his Honour's discretion. 8 In my opinion, the award was within the judge's discretion and was justified on his Honour's findings as to permanent disability, its nature and the occupation of the respondent as an architect which requires long hours standing at a drawing board. Also to be taken into consideration is the respondent's age at trial, being 37 years. There was, in my view, ample evidence before his Honour to justify the 'cushion' which he allowed. 9 The last issue is his Honour's allowance of $25,000 for future out-of-pocket expenses and treatment. The appellant submits that this award was not justified on the evidence and his Honour's findings. His Honour said that the respondent's injury required conservative treatment with occasional osteopathy. The appellant submits that between $3,000 and $5,000 would be adequate. 10 His Honour found that the respondent had a musculo-ligamentous injury of moderate severity which was a permanent condition. As I said, he was 37 years of age at trial. Besides treatment by way of osteopathy or perhaps physiotherapy, the respondent also needs a special Burgetic Allmatic chair and drafting stand to be able to do his drafting work with reduced discomfort. This cost was assessed at $1,693 undiscounted. There was also a claim for travel expenses for future treatment and this was quantified at around $2,000. The judge accepted these claims as well as noting that the respondent was entitled to an appropriate amount for time lost from work. Alternative calculations were submitted by the respondent to the judge for future out-of-pocket expenses. They totalled $28,917 and $31,845 respectively without regard for travel costs, lost time and the equipment, all of which his Honour accepted. When the claim as a whole is examined, it is clear that his Honour discounted it to $25,000 [AB 40M], but was including all the elements including necessary osteopathy. 11 Although the figure of $25,000 may appear a little generous, it was within the discretionary bounds. 12 I would dismiss the appeal with costs apart from reducing the judgment by $28,917.65 to reflect the agreed error made by his Honour. Accordingly, the judgment of the District Court is set aside and a judgment for the plaintiff in the sum of $136,754.80 is substituted. The costs order below should not be disturbed. The appeal should otherwise be dismissed with costs. 13 SHEPPARD AJA: In this matter I have had the advantage of reading the judgment to be delivered by Stein JA. I am in agreement with his Honour's reasons and conclusions, and with the orders which he proposes. * * * * * * * * * * 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.