Taylor v Johnson [1999] NSWCA 217

New South Wales Court of Appeal CITATION : Taylor v Johnson [1999] NSWCA 217 FILE NUMBER(S) : CA 40173/98 HEARING DATE(S) : 3 June 1999 JUDGMENT DATE : 3 June 1999

Meredith Taylor PARTIES : v Sarah Johnson JUDGMENT OF : Meagher JA; Fitzgerald JA; Cole AJA

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 4862/97 LOWER COURT JUDICIAL OFFICER : Garling DCJ

COUNSEL : A - RS McIlwaine SC R - JD Hislop QC SOLICITORS : A - Stacks, Sydney R - McMahons, Sydney CATCHWORDS : Quantum - No question of principle. CASES CITED: Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 Moran v McMahon (1985) 3 NSWLR 700 DECISION : Appeal dismissed with costs

IN THE SUPREME COURT` OF NEW SOUTH WALES COURT OF APPEAL CA 40173/98 DC 4862/97 MEAGHER JA FITZGERALD JA COLE AJA

Thursday, 3 June 1999

Meredith TAYLOR v Sarah JOHNSON

JUDGMENT 1 COLE AJA: The sole question in this appeal is the appropriate quantum of future loss of earning apacity. Garling DCJ awarded the appellant $233,988. That sum was calculated upon the basis of a loss of $300 per week for forty years using a discount factor of five per cent and allowing fifteen per cent for vicissitudes. The appellant contends that the future economic loss should be determined using a weekly loss of $1,150 per week for forty years with a similar discount factor and deduction for vicissitudes. This would result in a figure of $896,856. 2 The appellant was born on 4 April 1978. She was thus sixteen years of age when she was struck by a motor vehicle on 11 November 1994. She was at the end of year 11 at Sydney Church of England Grammar School, Darlinghurst. She was an intelligent young lady, gifted in music, and a competent sportswoman. In addition to her school studies, she had worked as a waitress on a casual basis during 1993 and 1994 and had done work experience with a publisher. 3 The trial Judge found that in the accident she was severely injured. She was deeply unconscious and not breathing immediately after the accident. She was admitted to the Prince of Wales Hospital, remaining there until 8 December 1994. The injuries suffered by her were described by the Judge in the following terms: "She had suffered a closed head injury, pulmonary contusions with aspiration of gastric contents, a fracture of the right ankle, a suspected ligamentous instability of the left knee, and multiple skin abrasions." 4 It was subsequently discovered that she had suffered stress fractures of the first and second lumbar vertebrae. The trial Judge accepted that, in the future, she will require fusion of the L1 and L2 vertebrae. Subsequent testing indicated that she had suffered frontal lobe damage and bilateral temporal lobe damage. His Honour also accepted that there was a fifteen to twenty per cent chance of her suffering traumatic syrinx which would involve spinal damage in the future and it would involve her bladder, her bowels and may lead to spasticity in the legs. It was held that in consequence of the injuries suffered, she would not be fit in the future for heavy physical work and would have difficulty with work requiring "a lot of sitting or static posture". 5 Notwithstanding these severe injuries, the appellant returned to school for year 12 in 1995. She successfully completed that year, gaining a tertiary entrance mark of 92.2. She nominated as her first preference at university the Arts/Law course. She gained entry into that course at the University of Technology, Sydney and commenced that course in 1996. However, during the first semester she dropped the law course. In May 1996 she successfully sought a transfer to a Visual Communications degree, commencing that course in 1997. During 1996, although with some difficulty, she worked as a cocktail waitress during the evenings and as a shop assistant. She has continued to work as a shop assistant in addition to her university course during 1997. She is successfully engaging in her design course with credit assessments. 6 The contention of the appellant is that she wished to do Arts/Law but, due to her injuries, was not able to concentrate sufficiently to successfully cope with that course. The respondent did not accept that she wished to complete an Arts/Law course, contending that her true desire was to do a Visual Communications course. Some support for the respondent's contentions was contained in a document dated 7 May 1996 which was written by the appellant when she sought transfer to the Visual Communications course. In that document she wrote that she had truly wished to do Visual Communications but, once injured, because of credits thus available to her, it became apparent that she might gain entry to any course she chose at the University. Thus, she chose Arts/Law after discussion with her parents. This material contrasted with her oral evidence that her desire had always been to complete an Arts/Law course. 7 Notwithstanding this document, the trial Judge was not persuaded that the appellant did not want to do Arts/Law. The document was to be explained on the basis that the appellant, having decided to change courses, "put the best spin on it". The trial Judge was persuaded that she really wished to do an Arts/Law course as being the best method of getting into a media type job which was her ultimate desire. His Honour said: "… she decided to do an Arts Law Course as being the way of getting thought into a media type job, which is really what I think in the end she wanted to do … ."