New South Wales Court of Appeal CITATION : PACE v WEBBER [1999] NSWCA 190 revised - 15/06/99 FILE NUMBER(S) : CA 40147/98 HEARING DATE(S) : 4 June 1999 JUDGMENT DATE : 4 June 1999 SIMON PACE PARTIES : v GARY BRIAN WEBBER JUDGMENT OF : Meagher JA at 18; Handley JA at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 6295/97 LOWER COURT JUDICIAL OFFICER : Goldring DCJ COUNSEL : R S McIlwaine SC (Appellant) B H K Donovan QC/C P Locke (Respondent) SOLICITORS : Adelsteins (Appellant) John Simpson & Co (Respondent) CATCHWORDS : DAMAGES - mitigation of damages by injured person - Motor Accidents Act 1988 s 39 - assessment of non-economic loss ACTS CITED : Motor Accidents Act DECISION : Appeal allowed in part THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40147/98 MEAGHER JA HANDLEY JA 4 June 1999 SIMON PACE v GARY BRIAN WEBBER JUDGMENT 1 HANDLEY JA: This is an appeal by a defendant from the assessment of the plaintiff's damages by Goldring DCJ. The plaintiff was injured in a motor vehicle accident on 4 October 1994 and sued the driver of the other vehicle to recover damages for his injuries. Liability was not in issue. 2 Goldring DCJ assessed the plaintiff's damages at $644,842.51 and subsequently ordered an additional amount for interest and made a special order as to costs. 3 The defendant has appealed and the appeal has been limited to three questions. The first concerns the awards for economic loss and involves s 39 of the Motor Accidents Act in its original form. The second question relates to his Honour's finding on non economic loss and, in particular, his finding that the plaintiff's injuries represented 55 percent of a most extreme case. The third issue relates to a question of out-of-pockets and has been resolved by consent. In due course I will propose that the judgment be reduced by an amount of $1,250. 4 S 39(1) of the Motor Accidents Act in its original form provided: "In assessing damages in respect of a claim consideration shall be given to the steps taken by the injured person and to the reasonable steps which could have been or could be taken by the injured person to mitigate those damages by undertaking rehabilitation ... undergoing medical treatment or pursuing alternative employment opportunities". 5 Sub s (2) reverses the common law position and places the onus of proving that reasonable steps in mitigation have been taken on the plaintiff, rather than the defendant. 6 The Judge found that there was no occasion for invoking s 39 against the plaintiff to reduce his damages. The plaintiff, who had worked as a bus driver for some years immediately before the accident and had skill and experience in this area of employment, had not made any attempt to find work since his accident. The only question, therefore, is whether he was employable at all. If he did have a residual working capacity, which was capable of being put to use for the earning of income, then his complete failure to pursue employment opportunities may have warranted some reduction in his damages to reflect the policy in s 39. However, the Judge found that the combination of the plaintiff's limited educational attainments, his physical injuries and his psychological impairment were such that he was unemployable. The medico-legal assessment of his physical injuries indicated that he could no longer be employed as a bus driver or a truck driver but it was suggested, in evidence and in submission, that his physical condition and his past experience qualified him to work as a truck dispatcher or as a bus dispatcher. There is no dispute that his experience and his residual physical capacity would enable him to do this work and, indeed, the plaintiff said as much in cross-examination. 7 However, as a result of his injuries he has suffered from depression and post traumatic stress disorder. These conditions were subject of consideration and report on behalf of the plaintiff by a Mr Taylor, a clinical forensic psychologist and also by Ms Keenan, another psychologist, who were qualified for the plaintiff. He was also examined and assessed, on behalf of the defendant, by Dr Pryor, a vocational psychologist, who considered that he could possibly do the work of a truck dispatcher. He also considered that the plaintiff was able to work in other occupations but at the trial the defendant abandoned any reliance on these. The Judge had no difficulty in rejecting the suggestion that the plaintiff was capable of holding down any of these other jobs. 8 The highest Dr Pryor put the question in his reports of 12 September and 10 October 1996 is that a job as a truck dispatcher was a possible suitable vocational opportunity. His opinion was obviously qualified and he noted in both reports: "It may well be that his personal adjustment problems will be a substantial barrier to his resumption of work". 9 The Judge, who had an opportunity to observe the plaintiff giving evidence, said: "He is anxious and depressed and I find more probably than not that his psychological disorder is such that it would make him unemployable". 10 Subsequently, he said: "I do find more probably than not that his incapacity, taking into account his physical impairment and his psychological impairment, was such that he is unemployable". 11 On these findings, it is evident that the plaintiff had discharged the onus under s 39(2) of proving the matters referred to in s 39(1) in its relevant form. 12 Mr McIlwaine SC for the appellant submitted however that these findings were unsupported by evidence or against the weight of the evidence but I am unable to accept this submission. The expert opinions of the psychologists Taylor, Keenan and Pryor provided a more than sufficient evidentiary foundation for the findings, without making any allowance for the Judge's capacity to assess the plaintiff in the witness box. In my judgment therefore the Judge's findings cannot be disturbed. It follows that the appellant's first point fails. 13 The second ground of appeal challenged the assessment of the plaintiff as being 55 per cent of a most extreme case for the purposes of assessing his non-economic loss. He suffered severe injuries to his left shoulder and his right hand and back. He now has to use a walking stick. He has also suffered the psychological injuries that I have already referred to. The Judge found that the plaintiff and Ms Gilbert exaggerated the extent of his symptoms but nevertheless made the findings he did. 14 The plaintiff was a man of limited education and of limited intellectual interests. His life was very much bound up with physical activity in various forms, both at work and at leisure. The combination for a man with those characteristics of the psychological and physical injuries has been very severe. 15 Mr McIlwaine referred to the plaintiff's age, which was 51 at the date of trial, being 48 at the date of the accident. Undoubtedly, in assessing the percentage of a most extreme case, the Court has to bear in mind the age of the victim and the period of time during which the effects of the accident will be experienced. The fact remains that at age 48 at the date of accident and 51 at the date of trial the plaintiff can expect to have many years of life during which he will be unemployable and able to undertake only limited physical activities of the nature I have referred to. 16 The ultimate question is whether his Honour's assessment is outside the range of the exercise of a sound judicial discretion, bearing in mind the primary findings which, as I have said, cannot be disturbed. I have not been persuaded that his Honour's assessment is outside that range and I would therefore dismiss the second ground of appeal. 17 The third ground of appeal is conceded by Mr Donovan QC on behalf of the respondent. I therefore propose that the appeal be allowed in part by reducing the judgment by an amount of $1,250, which entered into the figure by error. Subject to that variation I would propose that the appeal be dismissed with costs. 18 MEAGHER JA: I agree. Discussion 19 HANDLEY JA: I propose therefore that there be substituted judgment for the respondent for $653,774.37, with effect from 25 February 1998. Discussion 20 MEAGHER JA: My brother Handley and I are both of the view that the respondent is entitled to indemnity costs. 21 HANDLEY JA: From 30 June 1998. Ordinary costs until that date. 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.