Rodwell v Dowdle [2000] NSWCA 197

New South Wales Court of Appeal

CITATION : Rodwell v Dowdle [2000] NSWCA 197 FILE NUMBER(S) : CA 40858/99 HEARING DATE(S) : 20/07/2000 JUDGMENT DATE : 20 July 2000

PARTIES : Alan John Rodwell Jan Louise Dowdle JUDGMENT OF : Meagher JA at 19; Beazley JA at 1

LOWER COURT JURISDICTION : District Court LOWER COURT 70150/98 FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER :

COUNSEL : Appellant: D O'Dowd Respondent: A Fennell SOLICITORS : Appellant: Sparke Helmore Respondent: Aubrey Brown Partners CATCHWORDS : Motor Accident - Damages - Assessment of past and future economic loss - Indemnity Costs LEGISLATION CITED : Motor Accidents Act 1988 (NSW) DECISION : Appeal dismissed with costs

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40858/99

MEAGHER JA BEAZLEY JA

Thursday, 20 July 2000

ALAN JOHN RODWELL v JAN LOUISE DOWDLE

JUDGMENT

1 BEAZLEY JA: The respondent was injured in a motor vehicle accident on 12 September 1995. She was aged thirty three years at that time and had two children, the youngest then not quite two years of age. She was in an established relationship with the father of her second child, and, as at the date of trial that relationship continued, notwithstanding there had been apparently some difficulties with it along the way. 2 The respondent suffered soft tissue injuries which had largely resolved by the time of trial. However, her major injury involved fractures of the fourth metacarpal bones of the right hand. She is left hand dominant. A fusion of the second metacarpal failed and she has experienced significant and prolonged pain and suffering in her hand and continues to do so. 3 Subsequent to the fusion a CT examination revealed degenerative joint changes with a subchondral cyst. 4 Dr Perko, hand surgeon, expressed an opinion that if the respondent's symptoms remained unchanged then she might require a further procedure. He advised her that even a successful fusion was unlikely to relieve all her pain and she may have ongoing symptoms relating to the third metacarpal joint. A further fusion would have involved an iliac crest graft and there were presumably the normal complications of surgery involved with that. 5 The respondent had declined to undergo further operative treatment. Her failure to do so was raised in proceedings as a failure to mitigate her damages and I will deal with that shortly. 6 Liability was admitted and the matter proceeded to trial for assessment of damages. The trial judge assessed the respondent's injury as being twenty five per cent of a most extreme case under the Motor Accidents Act 1988 (NSW) and awarded $70,000 for past economic loss and a cushion of $100,000 for future economic loss. 7 The appellant appeals against the awards for economic loss as being excessive. A cross-appeal against the award of non-economic loss was filed on behalf of the respondent but has been withdrawn. 8 The trial judge found that the respondent had been totally incapacitated from any employment from the date of the accident until at least January 1999 and that thereafter she was partially incapacitated. Two challenges were made by the appellant to this finding. The first was that her Honour had erroneously included the period from the date of the accident until January 1996, a period of about sixteen weeks when, the evidence established, had the accident not occurred it was unlikely that the respondent would have been working in any event as she would still have been off work caring for her young child. 9 The second challenge to the verdict was that the respondent's past work history and her personal circumstances did not support a finding that she would have returned to full time work. In particular, counsel for the appellant submitted that on the respondent's own evidence her pre-accident work hours were between 20 and 30 hours. These claims were well argued in the appellant's written submissions in paragraphs 6 to 13. 10 The respondent's second child was born in November 1993. In the period from 1 July 1993 until November 1993 her average weekly wage was $310 net. I consider that the appellant's claim that her Honour should have commenced her consideration of loss of past earnings from about January 1996 when, in the usual course of things, the respondent would have returned to work to be made out. However, as I shall explain shortly, in the end result I think that error makes no difference to the result of the appeal. 11 The evidence established that the respondent had a total inability to earn from a date which should have been about January 1996 until January 1999. Her work history in the few years immediately prior to the accident was that she worked about twenty to thirty hours per week. It follows that the fact the trial judge considered that she had some ability to work after January 1999 also makes no difference to what the calculation should have been to the date of trial. 12 Indeed, counsel for the respondent met these challenges to the trial judge's determination on this point by direct reference to the respondent's pre-accident earnings, without dwelling on the terminology of whether the respondent had engaged in full or part time employment. I am of the view that this approach has considerable merit. 13 If, during the period July 1993 to November 1993 the figure of approximately $310 per week is accepted as representing the respondent's earning capacity, as I consider it should, she had a loss of income for that period of about $61,000. Subtracting actual earnings in that period, an income loss of about $58,000 is demonstrated. 14 Her Honour awarded a higher figure of $70,000. The question is therefore, whether there was error in her doing so. I think that the respondent's submissions are well made out that, on analysis, the figure of $70,000 can be supported. Her Honour was considering a period from 1996 until the middle of 1999. A figure upon which it was proper to assess her income was $310 per week as at the middle of 1993. If that figure less actual earnings is taken, she has an income loss of just under $60,000. If one makes any reasonable allowance for increases in average weekly earnings over that period, it is clear that the figure of $70,000 falls within the range of loss of earnings which the respondent was likely to have suffered. On that analysis, even though the Court would have been assisted by a greater exposition of reasons by her Honour, I can see no error in the figure actually arrived at. 15 That then leaves the question of future economic loss. The appellant commenced submissions on that point by arguing that the respondent had failed to mitigate her damage by failing to undertake the fusion which had been raised as a possibility by Dr Perko. The respondent bears the onus under the Motor Accidents Act of establishing that there had been no failure to mitigate her loss. For my part I do not consider that she has failed to discharge that onus. She had had a previous fusion that had failed; she was not guaranteed a fully pain-free outcome even if the fusion was successful; and she would have had to undergo major surgery in having the fusion, which carried with it at least some complications, as is apparent from Dr Perko's reports of 22 March 1999. In all the circumstances I do not see that she was unreasonable in refusing to undergo the further operation. 16 That then leaves the question of whether her Honour erred in assessing an amount of $100,000 for future economic loss. The respondent was thirty seven years as at the date of judgment. She had shown a willingness to work in a variety of employments from the time that she graduated from technical college, after having completed her School Certificate. She has continuing pain and lack of strength including lack of grip strength in her hand. There are very few employments that one can think of that involve the use of one hand only and certainly the employments in which the respondent had engaged in the past, which as I have indicated covered quite a wide range, were employments which she had found significant difficulty in continuing in post accident, because of the injuries suffered in the accident. 17 Mr Fennell has done a breakdown of possible ways of analysing the figure of $100,000 which was awarded to the respondent by her Honour. Again the Court is not assisted by any explanation by her Honour as to how she arrived at the figure. The appellant did not submit that there had been no interference with the respondent's work capacity. It appears from both the respondent's submissions and appellant's submissions that her Honour has assessed the respondent as having had an interference with her work capacity of somewhere between twenty five per cent to fifty per cent of her actual work capacity. Even though that in itself is a wide range I think it does take into account the question of whether or not she would work a full forty hour week or maintain her pre-accident level of 20 to 30 hours. It seems to me that on the figures which have been presented by both parties, the figure of $100,000 was well within a discretionary range which could have been awarded by her Honour. In my opinion, although her Honour's reasons were not as expansive as the Court would have appreciated and as would have assisted the parties, the figure can be supported and in the circumstances I am of the opinion that the appeal should be dismissed and the cross appeal be dismissed.