Elio Giacomo Pegorer v Lisa Pegorer [1997] ACTSC 54 (18 July 1997)

SUPREME COURT OF THE ACT

ELIO GIACOMO PEGORER v. LISA PEGORER
No. SCA 60 of 1996
Number of
pages - 5
Appeal - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MILES CJ, GALLOP AND WHITLAM JJ

CATCHWORDS

Appeal from the Master - award of damages for personal injuries (knee injury) - appeal against awards for general damages and future expenses - principles applicable - advantage enjoyed by Master who saw appellant.

Damages - error of law or fact by Master not demonstrated - positive and constructive attitude of young plaintiff - no clinical depression - no reduction in appellant's earning capacity - apportionment of past and future general damages - greater sum of damages apportioned to past pain and suffering - apportionment discretionary - not indicative of error in assessing total general damages - no matter of principle.

Damages - award for future medical expenses - likelihood of future operation but no evidence of at what age - award restricted to particulars of claim - statement by doctor in letter that more than one operation required not supported by evidence - letter of unpersuasive probative weight - no matter of principle.

Supreme Court Act 1933, s.69

Oliver Davey Glass Pty Limited v. Gregory Allen Reginald Hollands (unreported, Full Court of the Federal Court, 5 July 1990)

HEARING

CANBERRA, 5 May 1997 (hearing), 18 July 1997 (decision)

18:7:1997

Counsel for the appellant: Mr. R. Mildren

Solicitors for the appellant: Barker & Barker

Counsel for the respondent: Mr. C. Leahy

Solicitors for the respondent: Abbott Tout Harper & Blain

ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed and the Master's judgment be confirmed.

2. The appellant pay the respondent's costs of the appeal.

DECISION

MILES CJ

This is an appeal by the appellant against the quantum of damages for personal injuries awarded by the Master in a decision handed down on 23 August 1996. The Master awarded the total sum of $83,817.32 made up as follows:

General damages	$30,000.00
Interest on past component	$1,951.78
Past loss of earning capacity	$15,000.00
Future loss of earning capacity	$10,000.00
Griffiths v. Kerkemeyer	$5,000.00
Past out-of-pocket expenses	$15,865.54
Future medical, etc. expenses	$6,000.00
Total:	$83,817.32

The appeal is confined to the award for general damages for pain and suffering and loss of enjoyment of life and for future medical, hospital and pharmaceutical expenses.

The principles applying to an appeal against an assessment of damages are well established both in this Court and in the Federal Court and were summarised by the Federal Court in Oliver Davey Glass Pty Limited v. Gregory Allen Reginald Hollands (unreported, Full Court of the Federal Court, 5 July 1990) in the following passage:

"Upon the hearing of an appeal, it may be that an appeal court is as well placed as the trial judge to draw conclusions of fact where the conclusions of the trial judge did not depend upon findings of credibility based upon impressions drawn from the demeanour of witnesses. (See Warren v. Coombes [1979] HCA 9; (1979) 142 CLR 531.) Although, in the present case, no issues of credibility were involved and the evidence of medical witnesses was not in dispute, the conclusion of the trial judge was not a simple finding of fact but a composition of inference and estimate, and an appeal court should be slow to interfere with such a conclusion unless an error of principle has been demonstrated or the amount of the assessment is beyond the realms of a sound discretionary judgment. (See Miller v. Jennings [1954] HCA 65; (1954) 92 CLR 190 per Dixon CJ and Kitto J at 195-197; Layton v. Walsh (1978) 19 ALR 594.) To put it another way, the appeal court must be satisfied that the assessment was reached after misapplication of the law, or was so disproportionate to the loss sustained that it must have been a wholly erroneous estimate. (See Jones v. Schiffmann [1971] HCA 52; (1971) 124 CLR 303.)"

The appellant's injury was sustained in October 1991 when he was travelling as a passenger in the front seat of a small car which collided with a steel pole in the median strip of a street in Fyshwick. The car was driven by his sister, the respondent. While the Master concluded that there was "an impact of some force" causing the appellant's right knee to strike the dashboard, the appellant at the time did not consider himself to have suffered injury more serious than a superficial cut and bruise. He reported no injury to the police and although he was careful over the few days following the injury, he thought that he had recovered after about a week.

The appellant was a 16 year old schoolboy at the date of injury and a keen player of various team sports with an ambition of becoming a professional coach. He continued to play an occasional game of soccer, basket-ball and tennis during the rest of the year when team competition was winding down at that time of the year and he was concentrating on his studies. He took a trip to Europe at the end of the year without difficulty and by the time school re-commenced in 1992 he had practically put the accident out of his mind. However, in February 1992 his knee started to ache, swell and cause him trouble. Then his knee gave way during a lunch-time soccer game. Concerned about a family history of arthritis, he consulted Dr Still, a practitioner in sports medicine, on 20 February 1992. Dr Still noted that there were complaints of problems in both knees at that stage. However, at a subsequent visit a week later, with continuing symptoms in the right knee, Dr Still advised an arthroscopy. This was carried out on 20 March 1992 and revealed a defect in the facet of the patella of about one centimetre in diameter. However, the loose body could not be located. After further complaints of the lump re-appearing, Dr Still performed a further arthroscopy on 3 April 1992 when the loose body was located and removed through a postero-lateral puncture.

The appellant developed post-operative infection and septic arthritis. He was referred to Dr Coyle, an orthopaedic surgeon, and subsequently surgical cleansing was carried out by way of further arthroscopy. The knee continued to remain very stiff, swollen and weak. A fourth arthroscopic procedure was performed in Sydney at which adhesions were divided. The appellant's condition eventually stabilised but he continues to have weakness, pain and swelling in the knee.

Dr Cairns, who saw the appellant on behalf of the respondent, reported that the appellant had suffered a significant disability which would increase over time requiring continuing remedial treatment and ultimately a choice between arthrodesis (less likely) and total knee replacement (more likely).

Despite the physical disability and continuing symptoms, the appellant has been able to continue with his studies and by the time of the hearing was enrolled at the University of Canberra in the Bachelor of Commerce degree. He intends to follow a career in banking or finance. He no longer has any hope of pursuing a career as a sports coach. The Master found that his likely career in banking or finance, as it now is, is likely to be more stable and more remunerative than his previously intended career.

Nevertheless, as the Master found, the change of career path was initially a disappointment. A report from Dr Scott was quoted in the Master's judgment, apparently with approval, stating that although the appellant "may have an occasional fun game, being unable to play in matches makes him very depressed". However, the appellant does not suffer depression of a clinical nature.

The appellant continues to work part-time in a family business and is able to take breaks when standing causes him problems. The Master found that this had led to a loss of earning capacity in the past, for which he awarded $15,000. It was not clear how this sum came to be fixed (the Master said that it was awarded as a discretionary sum), but it is not the subject of challenge by either party. The sum of $10,000, which was awarded on a similar discretionary basis as a buffer for loss of future earning capacity, is also not the subject of challenge.

Whilst the award of $30,000 for general damages appears to be somewhat light in comparison to the level of damages awarded in the Supreme Court, it is by no means so light as to be manifestly inadequate. No error of law or fact on the part of the Master has been demonstrated.

The appellant made a determined and worthy effort to come to terms with his injury and to adjust his lifestyle and aspirations accordingly. The Master clearly had all these matters in mind. It is notorious that a positive and constructive attitude to disability following injury does not resound in an increase in damages awarded for pain and suffering and loss of enjoyment of life. Despite the appellant's frustration and disappointment at not being able to participate in the sports at which he previously excelled, the injury was not shown to have caused a dramatic or substantial reduction in the appellant's capacity to enjoy a more or less average range of general activities and lifestyle.

Moreover, the Master had the appellant before him and enjoyed an advantage denied to this Court sitting on appeal, to make an assessment of the appellant as a person and the extent to which damages might, insofar as money can do it, place him in the position in which he might have been placed had he not been injured.

Mr. Mildren, for the appellant, submitted that error on the part of the Master was demonstrated by the apportionment for the purposes of interest under s.69 of the Supreme Court Act 1933 of $20,000 to the past and $10,000 to the future. It was submitted that, bearing in mind the appellant's age and likely long life ahead, with the high probability of further surgery to the knee, $10,000 is a wholly erroneous and inadequate sum to compensate the appellant for his pain and suffering and loss of enjoyment of life as it is likely to occur in the future.

There is merit in the latter proposition. However, it was not the Master's method to consider first the factors which might have made for a separate calculation of general damages for the past and then to turn to those factors which might establish an appropriate amount for the future. Nor is such an approach necessary, or even common. What the Master did was to look at all factors relevant to damages for pain and suffering and loss of enjoyment of life for both in the past and in the future and then to make a global award of $30,000. A further step towards fixing the amounts to be awarded under the various heads which were to make up the total of the award was to consider the matter of interest in relation to such components in the total award as might attract interest. The award of interest was essentially a discretionary step and the Master decided that it was appropriate to apportion of the total $30,000 an amount of $20,000 in respect of the past, to be used as the basis upon which interest might be calculated, leaving $10,000 for the future on which the respondent would not be liable for interest. That step may have been taken in a way which favoured the appellant, because it was open to the Master to have awarded a lesser proportion of the general damages to the past, but the respondent does not challenge the apportionment and it would be a rare case in which the discretion of the trial judge in this respect could be successfully challenged.

With regard to the award for future cost of medical, hospital and physiotherapy expenses, the Master's finding, which is not challenged, was that it is highly probable that the appellant will require knee replacement surgery in the future as well as some physiotherapy. It flows from this finding that there is also a high likelihood of medical and hospital expenses which could well be incurred in order for the surgery to be carried out.

The Master did not make any finding as to when it might be likely that the knee replacement surgery will be required, nor as to how the cost might be made up. There was evidence in a report of Dr Pinczewski that the current cost of joint replacement surgery is about $30,000, assuming no Medicare contribution and assuming also ten days of hospitalisation and six weeks of therapy. That sum includes a surgeon's fee of $1,892 and an assistant's fee of $378.40. The particulars of the appellant's claim were limited to include six days of hospitalisation at $3,600 and 18 physiotherapy visits at $684, making a total as particularised of $6,554.40. The Master was therefore entitled to restrict the award to what was claimed in the particulars, less a small discount for present payment in respect of a postponed loss.

The appellant's particulars also claimed that it was "likely that knee replacement may be required on more than one occasion". The only evidence to support this was a letter from Dr Still to the appellant's solicitors dated 12 August 1996 in which he stated that it was his understanding that, without technical improvement, current prostheses last for about ten years and that, given certain assumptions, the appellant would require more than one surgical intervention. Dr Still was asked nothing about this in the evidence he gave in court. There was nothing before the Master to indicate the age at which the appellant was likely to require surgery. It was therefore open to the Master to treat the statement in Dr Still's letter as of unpersuasive probative weight and we see no reason to differ.

The result is that the appeal should be dismissed and the Master's judgment confirmed. The appellant should pay the respondent's costs of the appeal.

GALLOP J

I agree with the conclusion reached by Miles CJ and the orders proposed.

I have nothing to add.

WHITLAM J

I also agree with the judgment of Miles CJ.