Jim Chinh-Minh v Mary Carol Tait [1997] ACTSC 57 (19 August 1997)

SUPREME COURT OF THE ACT

JIM CHINH-MINH v. MARY CAROL TAIT
No. SCA 53 of 1996
Number of
pages - 6
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

GALLOP, HIGGINS AND MADGWICK JJ

CATCHWORDS

Damages - assessment of quantum - no point of general principle

HEARING

CANBERRA, 5 February 1997 (hearing), 19 August 1997 (decision)

19:8:1997

Counsel for the Appellant: R Refshauge

Solicitors for the Appellant: Deacons, Graham & James

Counsel for the Respondent: R Williams, QC

Solicitors for the Respondent: Phillips Fox

ORDER

THE COURT ORDERS THAT:

1. The appeal and the cross-appeal are each upheld in part in accordance with the reasons for decision;

2. The amount of the judgment awarded by the Master is set aside;

3. Judgment for the respondent for $213,274.35, but credit is to be given to the respondent for any amounts already paid on account thereof.

4. The respondent is to pay one-third of the appellant's costs of the appeal.

DECISION

GALLOP, HIGGINS AND MADGWICK JJ

Nature of appeals

The appellant-defendant ("the defendant") appeals against the allegedly excessive quantum of two components of an assessment of damages for personal injury to the respondent-plaintiff ("the plaintiff") arising out of a negligently caused motor vehicle accident which occurred on 16 April 1994.

The Master awarded the plaintiff $251,274.35, made up as follows:

(a) General damages for pain and suffering, etc.	$50,000.00
(b) Interest on past component ($30,000) thereof	$1,362.00
(c) Past loss of earning capacity	$30,000.00
(d) Interest thereon	$3,207.00
(e) Future loss of earning capacity	$140,000.00
(f) Medical, etc. out-of-pocket expenses (past)	$10,705.35
(g) Future medical, etc. expenses	$12,000.00
(h) Griffith v Kirkemeyer claim	$4,000.00
	$251,274.35

The defendant's appeal, as pressed, concerns the largest two components, general damages for non-economic factors and future loss of earning capacity.

The plaintiff cross-appeals against the alleged inadequacy of the allowance for loss of future earning capacity.

Background

A short chronology of relevant events is as follows:

Mrs Tait was born on 9 April 1959.

In November 1976 she completed Year 12 at high school. In 1978 she completed a tax consulting course, and from approximately July - October (the "tax season") she was employed by tax agents. In the same year she married. In 1979 she was employed by a pharmaceutical company. In March her first child was born.

The family moved to Brisbane in 1980. Upon her husband joining the Army, the family moved to Adelaide. In 1981 her second child was born and in 1983 she had a third child.

Between 1979 and 1986 she worked for tax agents during most tax seasons. In 1986 she was employed for 25 hours per week by a solicitor in Adelaide.

In 1988 she obtained a position with the National Farmers Federation ("NFF") in Canberra. The family moved to Canberra mainly because of the plaintiff's NFF position. She became the assistant to the Director of Finance, her brother-in-law, Mr Ceramidas.

In October 1993 the plaintiff and her husband separated. In 1994 she obtained a housing loan and arranged the purchase of her own home. By this time, her salary package was now approximately $36,700, but it was under review.

On 16 April 1994 the motor vehicle accident occurred; this was one week after the plaintiff's 35th birthday. Her vehicle was struck on the left at right angles. She was jolted, felt her neck sore and drove home.

The next day she felt very sore and had a headache and neck pain. She attended her general practitioner, and X-rays were taken. During April and May 1994 she attended a chiropractor, with no improvement. On 19 May 1994 she first saw Dr Keilor.

On or about 26 May 1994, the plaintiff felt severe headaches with numbness of the whole right side of her back, and had difficulty in speaking. She was taken by a friend to the Woden Valley Hospital. There she was referred to Dr Danta, a neurologist. On 1 June 1994, Dr Danta diagnosed migraine precipitated by neck injury. Through mid-1994 she saw Dr Danta regularly; her headache was intermittent.

On or about 1 July 1994, she resumed work for 3 hours per day. Her headache again became continuous. She was admitted to the John James Hospital for 6 days, and there she underwent an unpleasant course of intravenous therapy.

In July 1994 she was prescribed Desenil, a migraine prophylactic, which proved effective. By August 1994 her headache was severe twenty per cent of the time, but she had a "very mild" headache, ninety per cent of the time.

Late in 1994, she suffered unpleasant side effects from the medication, involving visual hallucinations. Her medication was then changed. In 1995 her new medication was "fairly effective".

In January 1995 the plaintiff's NFF position was reclassified to "Assistant Director". She sought to return to work on a permanent part-time basis, 5 hours per day, 5 days per week. However, her employer declined these fixed hours, and offered her casual employment. On 1 February 1995 she accepted the proposal of casual employment, but on 3 February 1995 she resigned from the NFF because of the uncertainty as to the amount of work which would be available.

Instead, she took up a full-time position with a charitable body set up by the NFF to help drought-afflicted farmers. The work in this job was less demanding in terms of the degree of concentration and attention required of her. The pay rate was similar to what she had received in her previous employment.

In early 1995 she suffered increased symptoms of migraine and associated numbness and was again admitted to John James Hospital for intravenous therapy. This was very unpleasant.

In March 1995, the plaintiff established her own firm, Systemic Office Skills, to provide book-keeping services. In April 1995 she was divorced.

In August 1995 the "Farmhand" project sponsored by the NFF ceased and the plaintiff started to work in her own business.

In October 1995, Dr Keilor's assessment was: "Apart from the migraine, she has minimal nuisance value symptoms".

The Master's Findings

The trial took place before the Master on 8 and 9 July 1996. The Master's relevant findings were:

The plaintiff's continuing migraine constituted a real and substantial disability. The migraine was likely to resolve within some years, apparently at the "lower end of [a] spectrum" of five to ten years. The plaintiff's past and future difficulties, with unpleasant side-effects of the migraine attacks, and the "invasive, unpleasant treatments" lifted the claim "well above what it would be if it were solely a soft tissue whiplash claim".

The work undertaken by the plaintiff between February and August 1995 was considerably less taxing than her pre-accident book-keeping duties. The plaintiff was able to work at book-keeping, on a restricted basis, for about 20 hrs per week and on lighter duties for longer hours.

The net profit of the plaintiff in her own business of $6,935 in 1995-96 understated its real worth as a business. A more reliable picture was given by its second six months' performance.

It was likely that the plaintiff would have been promoted. Competing gross estimates of what she would have earned, suggested by the parties, were both rejected: while $44,000 was too low and $70,000 was too high. About $700 per week net was accepted as an appropriate figure.

Her present earnings at trial from her business were "at least $200 per week". That left a net loss of $500 per week. The plaintiff was then allowed $500 for 6 years, subject to normal contingencies of fifteen per cent. That produced a figure of $121,889.61. In addition, she was allowed a "buffer to reflect her lost opportunity" to achieve the type of promotion that she would have had upon the upgrading of her position. The allowance for future loss was rounded up to $140,000, about $18,000 being allowed for such buffer.

General damages

The defendant's appeal on this ground may be shortly disposed of. At trial, the plaintiff had suffered, as a result of the accident, over two years of migrainous headaches - often very severe and necessitating two periods of hospitalisation for intravenous therapy. These procedures were very unpleasant. She was required regularly to take medications; unpleasant side-effects were precipitated by one preparation.

She seems to have been a well-motivated person. Necessity had made her hard-working and ambitious. The effect of her injuries was severe enough totally to incapacitate her for work for over two months and partially thereafter. The Master was well entitled to find that her migraine condition still constituted a "real and substantial disability". Her condition was likely to last at least another five years before resolving. There was a possibility that it could last considerably longer.

The Master's opinion that the case called for an award "well above" what would be appropriate for a less severe, less enduring "soft tissue whiplash claim" of the kind frequently seen, was well-warranted. The Master made no discrete error, and the award, in our opinion, falls within an acceptable range. The appeal as to this aspect must fail.

Loss of earning capacity

The defendant's main criticisms of the Master's reasoning appear to be correct. The defendant's analysis can be restated as follows:

(a) the Master accepted an earning capacity at trial for the plaintiff of only $200 per week net, although the plaintiff had conceded that she had earned about $230 per week over her first year in her own business, and the Master elsewhere found that her actual earning capacity at trial was running at $326 gross per week. On the income tax scales, the last mentioned figure would result in an assessment of $275 net per week.

(b) the Master accepted that, but for her injuries, the plaintiff would at trial have been earning $700 per week net (the challenges by both parties to this conclusion are considered below).

(c) the initial post-trial loss should therefore be calculated at $(700-275) = $425 per week.

(d) while a 6-year projection on the period of some probable loss was well-supported in the evidence, the only reasonable inference from that evidence was that the plaintiff's incapacity probably would lessen gradually over the 6 years.

(e) In consequence, whereas the Master allowed $500 per week ($700-$200) for 6 years, less the usual fifteen per cent for contingencies (a resultant figure of nearly $122,000), he should have allowed a figure reducing from $425 per week to nil over that period.

To calculate the result out completely is complex, because future diminishing losses have to be given present values, but the result would be a reduction in the allowance made by the Master of about $70,000.

It is necessary however, before making any adjustment to reflect these criticisms, to consider whether the assessment of $700 per week was a proper assessment of what the plaintiff would have been earning as at trial but for the accident.

Counsel for the plaintiff, correctly in our view, described her, as at the date of the accident, as a "responsible, successful, ambitious person with excellent future prospects". There was uncontradicted evidence that, but for the accident, she would have been promoted to a job in which she would have been paid $70,000 per annum gross. That gross figure would indicate a net income of $894 per week. The foundational evidence for this claim was given by the plaintiff's brother-in-law who was her superior at the NFF; however, he appears to have exhibited a sufficiently "arm's-length" approach in work dealings with the plaintiff so as not to require his evidence to be discounted. Notwithstanding the various arguments to the contrary that were addressed to us, there was insufficient reason not to accept that evidence. Thus, the plaintiff's six-year post-accident loss was underestimated by $194 per week ($894-700) and should have resulted in her receiving an additional $47,000 odd. This criticism would militate to the tune of $47,000 against the $70,000 reduction proposed by the defendant. That result in turn necessitates the disallowance of the $18,000 buffer, the need for which no longer exists.

The plaintiff's final substantial criticism as to future loss of earning capacity is that the allowance to the defendant of a fifteen per cent discount for future contingencies over a period of as short as six years is too high. While there is, in our view, some substance in the notion that the fifteen per cent deduction usual for awards intended to reflect a capitalisation of loss over a long period need not be applied to shorter awards, we cannot say that a fifteen per cent discount is appellably in error.

In the result, it would appear that the $122,000 allowed for future economic loss should be reduced by $70,000, on account of the defendant's criticism, but the assessment should have been increased by $47,000, on account of the plaintiff's criticism.

The plaintiff also argues persuasively that the Master, in adopting a broad-brush approach to the assessment of past wage loss, overlooked that his calculations apparently did not allow, in the plaintiff's favour, for the fact that her wage in her pre-accident position would have risen, by the time of trial, by six to seven thousand dollars per annum gross. This would have caused the plaintiff some small disadvantage, say of the order of $3,000 in the Master's assessment.

To draw all this together, the $140,000 allowed for future economic loss ($122,000 and buffer of about $18,000) should be reduced to $99,000 ($122,000 - $70,000 + $47,000). However, the plaintiff should receive another $3,000 for past wage loss. Overall, the Master's award would thus be reduced by $38,000.

The appeal of the defendant should be upheld in part, as should the plaintiff's cross-appeal. The amount of the judgment for the plaintiff should be reduced by $38,000. The plaintiff should pay one-third of the defendant's costs of the appeal.