Cochran v Peteranel, Cochran v Morton [1999] NSWCA 182

New South Wales Court of Appeal CITATION : Cochran v Peteranel, Cochran v Morton [1999] NSWCA 182 FILE NUMBER(S) : CA 40007/98; 40022/98 HEARING DATE(S) : 3 June 1999 JUDGMENT DATE : 3 June 1999

PARTIES : John Anthony COCHRAN v Rosemary PETERANEL John Anthony COCHRANE v Roderick MORTON JUDGMENT OF : Meagher JA at 1; Cole AJA at 23

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 4419/97; 4421/97 LOWER COURT JUDICIAL OFFICER : Garling DCJ

COUNSEL : Appellant: A.C. Bridge SC/R.Sweet Respondents: R. Bartlett SC SOLICITORS : Appellant: Kell Heard McEwan Respondents: Abbott Tout CATCHWORDS : Negligence - motor vehicle accident - further motor vehicle accident - damages - calculation past economic loss - future economic loss - no error. DECISION : Appeal dismissed with costs; the costs to be the costs of a single appeal.

- 5 - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA: 40007/98; 40022/98 CORAM: MEAGHER JA COLE AJA

Thursday, 3 June 1999 JOHN ANTHONY COCHRAN v ROSEMARY PETERANEL JOHN ANTHONY COCHRAN v RODERICK MORTON JUDGMENT

1 MEAGHER JA: The appellant in these two cases is a married man with one child. He was born on 31 December 1961. He was therefore thirty five years of age at the date of trial. 2 After leaving school and performing some manual work, he did a course in cabinetmaking and then traded as a french polisher. At the time of the accident he was employed by a firm called Carmen Furniture. In that job he worked seventy hours a week, being six twelve hour shifts, Monday to Saturday. 3 On 24 January 1991 he suffered neck and back injuries in a rear end collision motor vehicle accident. He was off work for five weeks and then returned to his normal duties as a french polisher, although with limitations on heavy lifting. 4 Medically he was treated conservatively for the pain in his back and neck. He improved to about sixty per cent better and then levelled off. He also developed some psychological problems coping with his disabilities and, not surprisingly, became depressed, which resulted in him being sent for treatment to psychiatrists. 5 On 2 June 1994 he was involved in another rear end collision motor vehicle accident in which he suffered further injury to his neck and back, as well as an increase in his psychological symptomatology. He went off work for a period of about six weeks and again resumed work. 6 It was the appellant's case that his back problems and his psychological problems were worse after the second accident and due to his ongoing problems with his back at work he was unable to continue the job. He stopped work in February 1995 and has not worked since. 7 Although he stated that he wished to work and could do touching up work and maybe brush pen work in his trade, he felt he could not do the heavier work with french polishing. However, his attempts to look for work were somewhat limited, being essentially on several occasions walking along a street and going into factories and asking for work in circumstances where he could not even remember the names of the places he asked. He also attended CES and asked them to find work. 8 His Honour found that the appellant in his evidence was to be preferred to the respondents but he also said that he was not the best witness he had ever seen and as far as his evidence goes in demonstrating his attempt to look for work, he should have been much more diligent in that regard. 9 As to his medical injuries, there is very little dispute. It is not disputed either that he was unfit for heavy work, because heavy work would require him to do bending or standing. His Honour said this: "The plaintiff was a skilled tradesman as a french polisher, he could turn his hands to numerous types of work in that area and whilst if one is to get a job in certain parts of the workforce one would have to do a lot of heavy lifting and standing, there is no doubt that there are other parts of french polishing which did not require the same physical strength and lifting and standing and bending as others required. It is a very useful skill for someone to have who also sustained an injury to their back and neck." 10 For some reason which I am not entirely able to understand, Mr Campbell, QC, learned senior counsel for the appellant, attacked his Honour's findings in this regard. The reason I find great difficulty understanding it, because it is a matter of history that for some time after each accident the appellant did in fact go back to his old job of french polishing and did work there, for very considerable hours, including quite extensive overtime. 11 The issues which have been raised by the appellant in both cases, that is in the case of both accidents, really boils down to an attack on his Honour's figures for future economic loss, for superannuation and for past economic loss as to part. 12 I think I may explain this this way. His Honour first awarded in each case a sum in respect of the period up until 24 November 1995. In the first action, that is the Morton action, this figure was $23,000. In the second action it was $28,517. These figures were both derived from taking as the plaintiff's average weekly wages the pre-accident figure of $679 per week. 13 It should be noted that this figure is in many respects artificially high. In the first place, it reflects an average of seventy hours a week work which contains a large amount of overtime. Without overtime the figure would have been $433 a week nett. Secondly, it was an impermanent figure in that the employer's business was in the process of closing down and in fact closed down in December 1996. In the third place, the figure of $679 is perhaps a little high, because the average in the year before accident of the appellant's wages was from $559 to $679. In other words, his Honour has chosen the top of the range. 14 For those three reasons the figure of $679 may seem a little fragile. Nonetheless his Honour used that figure for the pre-24 November 1995 calculations and no complaint has been made about it. But then from 1 December 1995 until trial his Honour came up with different figures in the case of the first accident, that is the Morton accident. The figure was $8320 and in the case of the second accident it was $12,480. The basis of these figures was a weekly earning figure of $200. 15 When it came to future economic loss, the figure in the first accident was $27,526.40 and in the case of the second accident $41,289.60. The basis in this case of his Honour's calculations was the figure of $100. So in other words, for the three different periods one goes from $679 to $200 to $100. 16 The appellant's argument may be summarised as this, that it is entirely unexplained why his Honour reached the $200 figure and also why he reached the $100 figure. In both cases the figures are beyond the range of sound discretionary judgment and anyway are far too inadequate. 17 These arguments I think may be easily answered. A judge must give adequate reasons for any decision he reaches, adequate in the sense of making his conclusions comprehensible. He is not obliged to go further. 18 In my view, his Honour did all that was required. He found that there was an initial total loss of capacity to earn and thereafter a decreasing partial loss. 19 He also referred to a Vocational Capacity Centre report which had been tendered by the plaintiff and which seemed to indicate that work was available for him at an average figure of $327 per week nett. 20 His Honour did not say why precisely he came to the $200 figure, or to the $100 figure, but if one looks at the latter figure, one can see fairly clearly $100 is almost the difference between the $327 one derives from the Vocational Capacity Centre report and the figure of $433 which was the nett figure he had earned before the first accident minus the overtime. 21 I cannot see why that figure of $100 was not an entirely satisfactory figure. It seems to me to portray no error. If the $100 figure portrays no error, so much the less so for the $200 figure. 22 For these reasons I am of the view in both cases the appeal should be dismissed with costs, the costs to be the costs of a single appeal. 23 COLE AJA: I agree. 24 MEAGHER JA: Those are the orders of the Court.