Sophie Singh v Charles Leo King [1996] ACTSC 8 (28 February 1996)

SUPREME COURT OF THE ACT

SOPHIE SINGH v. CHARLES LEO KING
No. SCA 47 of 1995
Number of pages - 6
Personal Injury - Appeal

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ, GALLOP AND HIGGINS JJ

CATCHWORDS

Personal Injury - injuries to neck and knee of appellant resulting from car accident.

Appeal - appeal from decision of Master as to quantum of damages - whether components for past and future economic loss too high - issue as to whether appellant's knee injury resulted from the car accident - Master's conclusion that it was, undisturbed - injuries from accident caused appellant's early retirement - issue of earlier than necessary retirement raised but not deserving of large discount - Master's award for loss of earning capacity, both past and future, upheld - appeal dismissed.

HEARING

CANBERRA, 1 February 1996
28:2:1996

Counsel for the Appellant: Mr P Deakin QC with Mr M McDonogh

Instructing solicitors: Abbott Tout Harper and Blain

Counsel for the Respondent: Mr R Stanley QC with Mr C McKeown

Instructing solicitors: Snedden Hall and Gallop

ORDER

THE COURT ORDERS THAT:
The appeal be dismissed with costs.

DECISION

MILES CJ, GALLOP AND HIGGINS JJ This is an appeal from a judgment of the Master delivered 2 June 1995 awarding damages for personal injury to the respondent. The components of the award were:

Pain and suffering $30,000
Interest 4,000
Out of pocket expenses 2,043
Past economic loss 130,000
Interest 41,000
Fox v Wood 15,945
Future economic loss 55,000
$277,988

The Master rounded that figure up to $278,000.

2. The respondent was injured on 14 March 1986 when the appellant's vehicle struck the back of a police vehicle driven by the respondent. Liability was not in issue.

3. The appeal was confined to the components for past and future economic loss. In attacking those components the appellant raised an issue as to whether a knee condition which was noted after the accident was related to it.

The cause of the knee injury
4. Two criticisms were made of the Master's finding that the knee injury complained of was caused in the collision of 14 March 1986. The first was that the respondent did not give any direct evidence of any particular blow to the knee. The second was that matters alleged by the appellant against the respondent's credit were not expressly referred to by the Master. It was suggested that, as a result, the cause of the knee complaint that led to the respondent's retirement from the Australian Federal Police should have been regarded as unproved.

5. The answer to the first criticism is that the respondent's evidence on the immediate effect of the collision, although somewhat oblique, was capable of giving rise to a finding that the respondent had suffered an injury to his right knee caused by impact with some unidentified part of the interior of the vehicle. He said in evidence-in-chief, "I did hit something, but what I hit I don't know". That answer was given in the context of a question about the knee, and, although the question was leading, and objected to, the Master was entitled to give the answer some probative weight. The respondent also said that immediately after the collision he was "sore in the leg". He agreed that the knee remained troublesome after the accident. He gave further evidence of symptoms in the right leg following the collision, but did not relate them specifically to the knee nor to any particular time of onset. He said again in evidence-in-chief that he had never had any problem with his right knee prior to the accident.

6. There was also medical evidence to support the finding that the respondent's subsequent knee condition was caused by injury sustained in the collision. Dr Smyth, the Australian Federal Police physician, examined the plaintiff on 18 March 1986, a few days later. Dr Smyth's notes commence with reference to a motor vehicle accident on 14 March and to whiplash and the right knee. The notes record also complaints of pain in the right knee during sleeping or on weight-bearing. Dr Smyth noted on examination that there was a fairly full range of movement of the joint, except for pain over the lateral insertion of the quadriceps muscle on nearly full flexion, and tenderness over the lateral border of the patella and the lateral aspect of the joint space. X-rays which he ordered reported "no fracture seen".

7. Dr Smyth referred the respondent to Dr David McNicol, orthopaedic surgeon. Dr McNicol's reports were in evidence and he gave oral evidence. He first examined the respondent on 14 August 1986. He noted on clinical examination that the respondent was tender over the lateral femoral condyle on the outer ridge. There was some adjacent soft tissue thickening. X-rays showed an avulsed flake of bone from the lateral femoral condyle. After further examination, it was decided to explore the knee surgically. At the operation, an area of cartilage damage with softening and a loose piece of bone were found on the lateral femoral condyle on the margin of the articular cartilage and bone.

8. In his oral evidence, Dr McNicol said that the most likely cause of the injury to the knee which he observed would have been a direct blow to the knee. He said that such injuries were quite common in motor vehicle accidents, particularly prior to seat belts. He added that the knee is obviously very prominent, the bone and joint are very superficial, there is not a lot of muscle or soft tissue and it is quite easy for the knee to be damaged if it comes into contact sharply or firmly with a solid object.

9. The Master found on the whole of the evidence that in the subject accident the respondent sustained, inter alia, an injury to the right knee and was satisfied that all the subsequent problems that the respondent had with his knee resulted from the subject accident. He said that the precise mechanism did not matter.

10. It was not incumbent on the Master to deal expressly with every criticism which might be seen to reflect against the respondent's credit. Those identified in argument were not so compelling or extensive as to require the Master to reject the respondent's account of how he sustained injury to the knee. The Master made an assessment of the respondent and obviously accepted him as a witness of truth.

11. There is no substance in the appellant's contention that the Master failed to apply the applicable legal principles on the issue of causation of injury to the right knee.

Diminution of Earning Capacity
12. The respondent, who was born on 13 May 1937, joined the Australian Federal Police in 1966 and intended to remain an active member until compulsory retirement at age 60.

13. The respondent had expressed the opinion that he was capable of continuing to perform the duties of a police officer notwithstanding his injuries. Drs McNicol and McGrath supported that opinion. However, the police physician, Dr Smyth, had a different opinion. He considered that the residual disabilities of which the respondent complained rendered him unfit to continue to serve as a police officer. That different opinion led to the respondent being retired from the Australian Federal Police. As a result, it was open to the Master to conclude and he was correct to conclude that the accident had caused the respondent's retirement. He, therefore, lost the capacity to earn income as a police officer.

14. The Master's conclusion was also supported by Dr Anthony Cairns, who examined the respondent on behalf of the appellant. He classified the respondent as unfit for police duty.

15. The measure of the respondent's loss of earning capacity is the difference between his anticipated earnings as a police officer (Staff Sergeant or Inspector) from the date of retirement on 1 April 1988 and the earnings that his residual capacity to work is reasonably capable of generating. This will depend upon both the availability of suitable employment to the respondent and his ability to perform it.

16. Before his retirement, the respondent had undertaken part-time employment as a coach driver.

17. Following his retirement, the respondent has engaged in part-time employment both as a coach driver and as a courier. He acknowledged that he had the physical capacity for that employment and could, if work was available, do more. He felt he could work another day per week.

18. However, there was evidence that his physical capacity was, nevertheless, limited by continuing symptoms of pain and stiffness in the affected knee. That conclusion was not in conflict with the medical evidence. It was consistent with Dr Smyth's assessment.

19. The Master also concluded that the respondent's knee symptoms, having shown some initial improvement, were not likely to worsen. That was a reasonable conclusion from the evidence.

20. The Master concluded that the level of past earnings was $700.00 net per week. It appears that the figure based on the earnings of comparable officers would have been $780.00 net per week. Given the nature of the respondent's employment, variation between officers would be unlikely. The Master did not add any amount for earnings from the undeclared part-time work the respondent had in fact undertaken. It follows that to assume pre-retirement earnings of $700.00 net per week was an approach favourable to the appellant.

21. The actual net earnings to trial averaged $377.00 per week. The Master considered that figure should be regarded as an under-estimate to allow for the respondent's unused earning capacity. It has to be borne in mind that although the respondent worked both as a police officer and a coach driver after the accident and before his retirement, his retirement, a result of the effects of the accident, ended his capacity to work as a police officer. His residual capacity as a coach driver/courier was subject to some minor, but real, limitations as a result of the knee injury.

22. The Master was faced with two competing contentions. One was that the respondent should be regarded as capable of working full-time as a driver and that such work was available. The competing contention was that the respondent was doing all the work reasonably available up to the limit of his physical capacity.

23. The respondent conceded that he could work an additional day per week. He was reluctant to undertake additional work as those earnings would further reduce his police pension. The Master's conclusion concerning the competing arguments that "the truth lies somewhere between the two" seems unassailable.

24. The Master discounted the difference between the actual earnings and the earnings which otherwise would be received by nearly 25%. The possibility of earlier than necessary retirement was adverted to. It did not require a large discount of itself. An early retirement package may well have involved additional benefits. The respondent pointed this out in the course of cross-examination by Mr Deakin QC for the defendant in the action (the present appellant).

25. In those circumstances, it cannot be concluded that the award of $130,000.00 for loss of earning capacity before trial was erroneous.

26. A challenge was also levelled against the award of $155,000.00 for future economic loss.

27. The Master noted that, at the date of his decision, the respondent could have served as a police officer for a further two years only. The value of that loss was, without taking account of real future increases in rate of earnings, $780.00 net per week as at the period immediately pre-trial. The Master had adopted $700.00 net per week as the value of past earnings. The value of the respondent's earnings over the two years following the trial would have been between $72,800.00 and $81,120.00 without discount. The $550.00 net loss per week adopted by the Master would result in a loss of $57,200.00 before any discount was applied. It was, in fact, discounted by the Master to $55,717.00. That reflected the current value of the loss of $550.00 net per week spread over two years.

28. The appellant challenges the assumption made by the Master that future economic loss was to be assessed by taking a loss of $550.00 net per week as "a fair starting point".

29. It is true that the Master does not explain his reasons for so concluding. However, the "average" of actual earnings from accident to trial, taken as $377.00 net per week, did not necessarily reflect the diminution of earning capacity following the respondent's enforced retirement. Nor did the average pre-hearing earnings of a comparable employee, assessed at $700.00 per week net, necessarily reflect the post-hearing average for the remaining two years the respondent otherwise might have served as a police officer.

30. So far as actual earnings were concerned, the respondent's earnings for the financial years commencing 1 July 1990 to 30 June 1994 averaged $266.00 net per week. The average earnings for the several financial years included in that more general average varied between $170.00 and $366.00 net per week.

31. It was necessary for the Master to form a conclusion as to the extent to which the actual earnings figures assisted in the assessment of the real diminution of earning capacity for the future.

32. The previous real earning capacity of the respondent should have included some allowance for earnings from his second job. It is true that such extra employment was the less secure for being surreptitious. It did, however, have a real value. The usefulness of those figures was also diminished by the lack of incentive to the full exercise by the respondent of his residual capacity. A fair estimate of that seems to have been adopted by the Master at one day's pay per week approximately. This was estimated at $35.00 per week, which would have required a further discount of $3,535.00.

33. Another factor to which the Master drew attention was expressed by him as follows,

In addition had he not been injured, he may well have been
capable of earning substantial money from various activities
after retiring from the police force at age 60.

34. Whilst that general consideration was not addressed with specificity, it would by itself have justified the award of a lump sum by way of a "cushion".

35. Without that consideration, an award somewhere between $36,000.00 and $46,000.00 would have been unassailable. That range of figures represents a loss of between $434.00 and $514.00 per week, duly discounted at 3%, and further reduced for the accepted degree of voluntarily unused earning capacity.

36. To add to that sum even as much as $19,000.00 to compensate for the lost chance of earning "substantial money from various activities" post-retirement, could not be regarded as excessive.

37. It follows that whilst the figure of $550.00 per week over two years as a "starting point" is not readily and obviously justifiable, other considerations which the Master could or should have had in contemplation render the result supportable.

38. We dismiss the appeal with costs.