Field v Close [2003] NSWCA 137

New South Wales Court of Appeal

CITATION : Field v Close [2003] NSWCA 137 HEARING DATE(S) : 28 May 2003 JUDGMENT DATE : 28 May 2003

JUDGMENT OF : Meagher JA at 15; Giles JA at 1 DECISION : Appeal allowed in part; judgment below set aside and in lieu thereof there be judgment for $315,952.35; the cross-appeal is dismissed; and the defendant is to pay the plaintiff's costs of the two limbs of the appeal.

CATCHWORDS : Damages - whether assessments of heads of damages within range of discretion - no question of principle. ND PARTIES : Michael Field - Appellant John Close - Respondent FILE NUMBER(S) : CA 40194/02 COUNSEL : G F Little SC & R Foord - Appellant R S Tonner SC - Respondent SOLICITORS : Denniston & Day, Wagga Wagga - Appellant Moray & Agnew - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT DC 23/98 FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40194/02 DC 23/98

DELANEY DCJ

Wednesday 28 May 2003 FIELD v CLOSE Judgment 1 GILES JA: On 1 November 1996 the plaintiff was hit by a motor vehicle when riding his pushbike. He was then aged thirteen. He suffered a quite severe injury to his leg. Liability for his injury was admitted, and damages were assessed in a hearing in the District Court. Damages of approximately $289,000 were awarded. In an appeal and a cross-appeal various elements of the damages have been called in question. 2 The judge considered the plaintiff's injury such that he was entitled to 43 per cent of the figure available for a most extreme case. The plaintiff had put his case at 40 per cent, and the defendant had urged that the percentage should be in the vicinity of 30 per cent, but the judge said rightly that he was not bound by the submissions made in that respect and arrived at the higher percentage. He described the injury as one resulting in a serious and permanent disability, and found that the plaintiff's difficulties were likely to become more serious as he aged. 3 The cross-appeal essentially challenged the 43 per cent. It is fair to say that the plaintiff acknowledged that it was a high percentage, but he submitted that it was nonetheless within the trial judge's discretionary range. Given the trial judge's findings as to the nature of the injury and its consequences, which findings were at least in part founded on his impression of the plaintiff, I consider that, whilst at the upper end of the range, the 43 per cent was open to the judge. 4 The appeal was in a sense then founded on the platform of the 43 per cent and the judge's view of the plaintiff's injury and its consequences underlying that award of damages for non-economic loss. 5 The judge awarded $15,600 for past economic loss and $115,300 for future economic loss. The contention was really over the future economic loss. The judge took as his starting point an uninjured earning capacity of $500 net per week. He thought that there was a loss of earning capacity of $150 net per week. The figure then calculated was reduced by 20 per cent instead of the conventional 15 cent for vicissitudes, resulting in the $115,300. 6 The plaintiff submitted that the starting point of $500 net per week was flawed and unexplained, because it was less than average weekly earnings of $700 gross per week and why the judge arrived at it did not appear from the reasons. The judge in fact referred to $700 per week as a net figure, which may have been no more than a slip. In response, the defendant said that $700 gross per week converted to a net figure did not show such a great discrepancy, and that the $500 net per week was equivalent to a gross figure of $630 per week so that what the judge had really done was assess the uninjured earning capacity at only a little less than the average weekly earnings. This, it was said, was within what the trial judge could find on the evidence, given the plaintiff's fairly limited literacy and numeracy and an IQ in the fairly low range. 7 It is true that the judge did not explain how he came to the figure, but it seems to me that in the circumstances it is tolerably clear that that is how he did so. I consider that it was a starting figure which it was open to the judge to employ. The plaintiff then submitted that, from the platform of 43 per cent of a most extreme case, a lost earning capacity of only $150 net per week was erroneous. The concepts are different, and while a lesser retained earning capacity could have been found I consider that the evidence permitted the judge to arrive at the figure he did. 8 The 20 per cent vicissitudes at the end of the calculation is also something which it seems to me was open to the judge on the evidence, given that the occupation of the plaintiff's father, at least in recent times, as an itinerant fruit picker and the family location suggested greater than usual interruptions in actual employment. 9 There was a question about the allowance for superannuation. The judge took a rounded-off figure of $10,000, and a calculated figure on the bases employed by the judge would have been a little over $11,000. But it seems to me that the judge was entitled to take a rounded-off figure, when the underlying figures were themselves not really a calculation but involved great elements of estimation. 10 The remaining matter was that of domestic assistance and it is here in particular that the 43 per cent underlay the plaintiff's submissions. 11 The judge was not satisfied that there was a need for domestic assistance. It is not easy to see why he was not satisfied, in the light of his findings in coming to the 43 per cent. The judge said that when questioned the plaintiff disavowed "any real need for such assistance", which I do not think is really an accurate reflection of the plaintiff's evidence, and said that the relevant part of the report of an occupational therapist speaking of a need for domestic assistance was more likely than not based on "misstated facts about the plaintiff's disabilities as they currently exist". Nonetheless the judge himself said that the plaintiff understated many of his symptoms, and from the judge's earlier findings I cannot really see why he declined to recognise a need for domestic assistance. 12 The defendant referred to a report in which Dr Caldwell disagreed with the views of the occupational therapist, but Dr Caldwell does not seem in what he said to have had regard to the long future ahead of the plaintiff. In any event, what matters is the judge's findings as to the plaintiff's disabilities. In this respect it seems to me that there should be an adjustment of the award of damages. 13 The adjustment can be regarded as picking up the minor matter of superannuation. I propose a figure which is admittedly a round figure rather than a calculated figure, in particular because calculation in these circumstances is but a mirage. I propose that the award of damages be increased by $30,000. 14 Accordingly, the formal orders which I propose are: