Paranomos v Pasialis [2001] NSWCA 203

New South Wales Court of Appeal

CITATION : Paranomos v Pasialis [2001] NSWCA 203 FILE NUMBER(S) : CA 40111/00 HEARING DATE(S) : Friday 22 June 2001 JUDGMENT DATE : 22 June 2001

PARTIES : Maria Paranomos v Angelo Pasialis, Dionysia Pasialis, Vasili Hountalas & Andrea Hountalas trading as Sandwich Stack JUDGMENT OF : Handley JA at 27; Grove J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT DC 3748/98 FILE NUMBER(S) : LOWER COURT Price ADCJ JUDICIAL OFFICER :

COUNSEL : S. Norton (Appellant) L. King SC (Respondent) SOLICITORS : Brydens Law Office (Appellant) A.O. Ellison & Co (Respondent) CATCHWORDS : DAMAGES - ECONOMIC LOSS - PART TIME WORK - NO SPECIAL POINT OF PRINCIPLE DECISION : Appeal allowed.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

40111/00

HANDLEY JA GROVE J

Friday 22 June 2001

MARIA PARANOMOS v ANGELO PASIALIS, DIONYSIA PASIALIS, VASILI HOUNTALAS and ANDREA HOUNTALIS trading as SANDWICH STACK

JUDGMENT

1 HANDLEY JA : The Court is in a position to give judgment and I ask Grove J to give the judgment. 2 GROVE J: This is an appeal challenging the quantum of damages assessed by Price A/DCJ in an action in which the appellant sued her respondent employers seeking damages for the effects of an accident which occurred on 1 April 1993, when she was employed as a sandwich hand at their business. 3 The plaintiff was born on 13 January 1948 and was therefore aged forty-five years at the time of the accident and fifty-two years at the date of trial, which was in February 2000. The appellant had been married and was the mother of two children. She had, after the birth of her children, worked substantially through her life on a casual part-time basis as a sandwich hand. The evidence was that she had difficulties with the English language and it is apparent that she usually worked in shops where the owners or other workers communicated in Greek. 4 There are some other background matters that it is appropriate to record. Her husband was the operator of a shop. For several years prior to 1993 the appellant's work pattern was to spend two four-hour shifts at the defendants' sandwich shop and to work another two days for about seven hours on each day at her husband's shop. She did not receive any actual amount of money for working in her husband's shop, but it might be assumed that there was some benefit to the family from her activity there. 5 It is convenient to schedule some dates of significant events. I have already mentioned that the accident occurred on 1 April 1993. The appellant did not immediately cease work; it was in early 1994 that she first became aware of symptoms in her lower back. Shortly thereafter, in January 1995, her husband began to feel symptoms of illness. As a result he leased his shop to another. In June of that year the appellant and her husband went to Greece for several months on a holiday. In September 1995 a fatal cancer was diagnosed as a result of which her husband, two years later, in September 1997, died. 6 Thanks to the cooperation of counsel the Court is able to deal fairly expeditiously with the issues involved in the challenge to the quantum of damages. The challenges by the appellant relate to the assessment of damages for economic loss. 7 The learned trial judge in his judgment awarded the appellant damages for economic loss to the date of trial calculated by reference to an assumption that she would have continued to work for just the two days a week in the employment of the defendants or similar. Using that as a guide, he came to the conclusion that the appellant would have earned no more than the amount which she had received by way of workers compensation benefit, and he included that sum in his assessment of damages. 8 A principal challenge in the appeal has focused upon the circumstance that after the death of the appellant's husband she testified that it would have been her intention to resume full time work. That evidence was essentially unchallenged in the sense that she spoke of her intention if she had not been suffering symptoms. The reference to full time work in relation to the appellant must be seen in the context of her activity as a sandwich hand. This did not refer to thirty six or forty hours per week. 9 The claim of the appellant was that if the accident had not intervened, she would, after a suitable mourning period, have returned to employment for something in the order of at least four days per week for the limited number of hours per day in sandwich hand work which was available. 10 In short, she claimed that the evidence was that she had, as a result of the injury, sustained an incapacity which was likely to be productive of economic loss measured against the approach that I have indicated. 11 The learned trial judge found that the medical evidence established that she had sustained, as a result of the fall on 1 April 1993, a disc protrusion at both levels L4/5 and L5/S1. He also found that although after her husband's death the appellant was suffering a consequent anxiety and depression there was a material contribution from the effects of the accident to symptoms of that nature. 12 It is convenient now to turn to the matter of contest between the parties arising out of a finding by the learned trial judge that the appellant's earning capacity in the future should be terminated on the hypothesis that she would have, by reason of evolving cervical spondylosis, terminated any employment at the age of sixty years. 13 In addition to the symptoms referable to her lower back, which his Honour found to be tort induced, the plaintiff had complained of symptoms of headache, neck pain and untoward sensation in her arm and hands. It is conceded by counsel for the appellant that there was available evidence upon which his Honour could find, as he did, that these symptoms were not related to the accident in 1993. However, there is contest between the parties as to whether or not any symptoms unrelated to the tort, that is to say headache, neck and arm symptoms, would have prevented the appellant from continuing in employment as I have noted. 14 His Honour came to the conclusion that her employment would have terminated at the age of sixty years. In reaching that conclusion he had observed that the appellant herself had given evidence that continuing disabilities related to her upper body would have prevented her from working. 15 It is conceded that that was erroneous and that, indeed, the appellant's evidence was to the contrary. In the course of the hearing in this Court we have been taken to the evidence relating to the appellant's upper body located symptoms. Without detailing that evidence it can be recorded that there was little material which would indicate that there was a disabling symptomatology derived from that area of her body. 16 Senior counsel for the respondent was unable to take the Court to any medical evidence postulating that evolving cervical spondylosis would have terminated the appellant's employment, but he did take the Court, in particular, to evidence given by the appellant herself at trial when she said she was suffering excruciating pain in the neck and in that general area. 17 Despite the appellant's complaints in that regard, I have reached the conclusion that her challenge to his Honour's finding that evolving cervical spondylosis would have prevented the appellant from working until the age of sixty has been made good. It follows that this Court should intervene and reassess some of the elements of damage. I return, therefore, to the submissions in relation to the extent of the interference with the earning capacity of the appellant in exercising that capacity for the purpose of earning income. 18 It is common ground that the inability to work as a sandwich hand for two days per week can be calculated in a nett sum of $103 per week. It would be necessary for the Court in any assessment to take into account that there would necessarily be some mourning period after the death of the appellant's husband which, of itself, would be likely to interfere with her actual exercise of earning capacity. However, our attention was drawn to a solicitor's file note admitted into evidence, which showed that by about November 1997, approximately two months after the appellant's husband's death, consideration was being given to a trial at resumption of employment by her employers. 19 Given her evidence of her intention and the whole of the background circumstances, I have come to the conclusion that an appropriate measure of damage would be found by measuring the earnings that the appellant would have earned had she worked sandwich hand hours for four days a week in lieu of two days per week. I consider that the appropriate period to take would be two years and three months, which is a little less than the two years and five months which elapsed between the death of her husband and the trial, but would take into account the mourning period to which I have made reference. 20 Using the figures that I have indicated for economic loss prior to the date of trial there would, therefore, need to be included $103 per week in addition to the amount found by the trial judge for two years and three months. According to my calculations then, the assessment would be enhanced by a sum of $12,051. 21 I turn then to the issue of future economic loss. As I have indicated, the learned trial judge terminated the appellant's notional working life at the age of sixty. Given the absence of any evidence sustaining the finding that it was evolving cervical spondylosis which would have caused that earlier termination at the age of sixty, I consider that the damages for future economic loss should be recalculated upon a period of thirteen years rather than eight years, which was the figure selected by his Honour. 22 Although I have reached that conclusion, I consider that particular reflection also should be given to the circumstance of the existence of the underlying condition and the risk that this may fall due. I consider that particular account should be given to the expressions of the appellant as to the intensity of the symptoms she was feeling in that area. This, in my view, should be done by discounting the calculated capitalized figure for future economic loss by 30 percent, rather than the conventional lower figure, taken to reflect the excess of adverse over favourable vicissitudes. 23 The damages for future economic loss should, therefore be calculated on the basis of a weekly loss of $206 per week nett, representing four days per week in the sandwich shop type employment over a period of thirteen years. On my calculations, the capital sum, after applying a 30 percent discount would be $72,431 in lieu of the $30,257 awarded by the learned trial judge. 24 I would therefore, in lieu of the assessment by the learned trial judge, substitute a total figure of $224,641 in lieu of his total of $170,416. 25 I note that the parties agree that workers compensation benefits totalling $51,218 had been received and to that extent there will be pro tanto satisfaction of the judgment. 26 I propose the following orders: